R v Karsten PETERSEN [2008] NSWDC 9

Reported Decision : 6 DCLR (NSW) 283

New South Wales District Court

CITATION: R v Karsten PETERSEN [2008] NSWDC 9 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 February 2008 - 11 February 2008

JUDGMENT DATE: 7 February 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: See paragraph [32]

CATCHWORDS: Trial Judgment - Relevance of evidence - Self-induced intoxication - Specific intent - General intent - Recklessness

LEGISLATION CITED: Crimes Act

The Queen v O'Connor (1980) 146 CLR 64 DPP v Majewski [1977] AC 443 Bernard v The Queen 45 CCC (3d) 1 R v Grant (2002) 55 NSWLR 80 CASES CITED: R v Banditt (2003) 151 A Crim R 215 Banditt v The Queen [2005] 223 ALR 633 R v Gulliford 920040 148 A Crim R 558 R v DJB [2007] NSWCCA 209 Holland v The Queen (1993) 68 A Crim R 176 DPP v Morgan (1975) 2 All England Reports

TEXTS CITED: Rooke and Ward on Sexual Offences

PARTIES: The Crown Karsten Petersen

FILE NUMBER(S): 06/11/1011

COUNSEL: J Dailly SC - Offender

SOLICITORS: NSW DPP Nyman Gibson Stewart

JUDGMENT 1 HIS HONOUR: This judgment concerns how a jury should treat evidence revealing that an accused was intoxicated at the time he allegedly committed an offence of sexual intercourse without consent, or indecent assault. 2 The ultimate issue is whether I should direct the jury in this case that in considering whether the accused knew or was reckless as to whether the complainant was consenting, I should tell the jury to ignore evidence of the accused's intoxication. The issue is a very difficult one. It concerns an area of law where, in a number of jurisdictions, principle has given way to policy, pragmatism and political expediency. For that reason it is difficult to use established legal principle to resolve the issue. 3 The idea that crimes can be divided into those of basic and specific intent is one which is widely acknowledged in the common law world. Previously the High Court in The Queen v O'Connor (1980) 146 CLR 64 rejected the position taken by the House of Lords in DPP v Majewski [1977] AC 443 where the House of Lords held that evidence of self induced intoxication could not be taken into account in crimes of basic intent. For many years that represented the law in New South Wales, but in 1996 part 11A of the Crimes Act was introduced. 4 That part now requires that where intoxication is raised I must decide whether an offence is one of specific intent or general intent because s 428D provides that,