Inadvertent Recklessness Analysis

Inadvertent recklessness

Recklessness in the context of sexual assault could also be inadvertent recklessness. Inadvertent recklessness is when the accused failed to give any thought to whether the person may or may not be consenting.

An example would be the case R v Tolmie , the appellant was convicted of sexual assault. The appellant and the complainant met at a club and they bonded. The appellant had intercourse with the complainant. The issue raised in this case is did the complainant consent to the sexual intercourse. The appellant did not consider whether she consented and proceeded with it anyway.

In the judgment of R v Tolmie , when Kirby P was defining inadvertent recklessness, he referred to the statements in DPP v Morgan and

Sexual assault involved the penetration of a woman’s vagina by a man’s penis while indecent assault did not.

Reckless in indecent assault

Advertent and inadvertent recklessness in indecent assault is defined similarly to recklessness in sexual assault. However, the terms are rarely used in the context of indecent assault. Recklessness in indecent assaults is usually just called an act of indecency.

In Fitzgerald v Kennard , the court was asked to consider whether it is necessary to prove that an accused adverted to the issue of whether or not the complaint was consenting, in order to establish an offence under s 61L. In the same case, Cole JA made a reference to Kirby P’s judgment in R v Kitchener . He agreed to what Kirby P said:

“Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality.”

Fault elements of these

In the context of sexual assault, inadvertent recklessness is part of the mens rea, when the prosecution determine the existence of the mens rea, he or she would have to think about advertent recklessness and inadvertent recklessness. If either of the element exist, there is a mens rea and therefore the person is guilty of the offence and can be convicted.

However, in the context of indecent assault, it is more difficult to prove advertent recklessness and inadvertent recklessness. Sections 61L and 61N of the Crimes Act 1900 (NSW) did not mention anything about recklessness. It is possible to commit an act of indecency recklessly and it is shown in the judgment of two cases.

In R v Mueller , the Court of Criminal Appeal affirmed Fitzgerald v Kennard and applied the reckless non-advertent concept to indecent assault. In this case, the appellant was charged with five counts of assault with act of indecency and was convicted of three counts. The complainant suffered from Asperger’s syndrome and schizophrenia. The accused had the responsibility of taking care of her. In the progress of taking care of her, the accused touched and kissed the complainant’s breast. He also forced the complainant to touch his penis which is an act of