W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 275

New South Wales Court of Criminal Appeal

CITATION: W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 275

HEARING DATE(S): 20 October 2009

JUDGMENT DATE: 16 November 2009

JUDGMENT OF: Basten JA at 1; Fullerton J at 85; McCallum J at 86

DECISION: Appeal dismissed

CATCHWORDS: APPEAL – criminal – interlocutory appeal – nature of appeal – offence of attempt to have sexual intercourse without consent – accused intoxicated at time of incident – issue arose at commencement of trial as to availability of defence of honest and reasonable mistake – judgment delivered by trial judge – stated the applicability of statutory provision relating to consent – stated that attempt was not an offence of specific intent – whether jurisdiction of Court of Criminal Appeal invoked – Criminal Appeal Act 1912 (NSW), s 5F – Crimes Act 1900 (NSW), s 61HA - CRIMINAL LAW – sexual offences – attempt to have sexual intercourse with identified woman, without consent and with knowledge of non-consent – whether statutory provision relating to consent applies to offences of attempt – whether offence of attempt an offence of specific intent – Crimes Act 1900 (NSW), s 61P, s 428B - WORDS & PHRASES – "interlocutory judgment or order" – "intoxicated by alcohol" – "knowledge of consent"

Constitution, s 73 Crimes Act 1900 (NSW), ss 61HA, 61I, 61P, 344A, 428B, 428C, 428D Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 3, 130A. 136, 291, 291A, 302, 306W, 306Y, 306Z, 306ZM LEGISLATION CITED: District Court Rules 1973 (NSW), Pt 53, rr 10, 11, 12 Evidence Act 1995 (NSW), s 192A Interpretation Act 1987 (NSW), s 34 Mental Health (Criminal Procedure) Act 1990 (NSW), s 38 Supreme Court Act 1970 (NSW), ss 69, 101 Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 31