Andre Rohan (a pseudonym)[1] v The King

The case of Andre Rohan (a pseudonym) v The King involved a dispute concerning the applicant's convictions for criminal offences related to the supply of drugs and sexual penetration of children. The applicant, along with two co-offenders, was alleged to have agreed to supply drugs to and sexually penetrate two complainants aged 12 and 11. The applicant and his co-offenders were each charged with supplying drugs to the complainants and sexually penetrating the 11-year-old complainant. The applicant was convicted both as a principal offender in the sexual offences and as a complicit offender in the sexual offences of his co-offenders, as well as for supplying drugs to persons under 18. The applicant appealed against his convictions, arguing that the prosecution had not proven to the criminal standard that he knew the complainant was a child under 12 for the sexual penetration charges based on complicity and that he knew the complainants were under 18 for the drug supply charges based on complicity.

The legal issues in this case involved the mens rea requirement for complicity charges where the offence is one of strict or absolute liability. The court had to determine whether the prosecution was required to prove to the criminal standard that the applicant knew the complainant was a child under 12 for the sexual penetration charges based on complicity and that the complainants were under 18 for the drug supply charges based on complicity. The court held that the prosecution was required to prove both matters to the criminal standard, and since the jury was misdirected about the burden of proof borne by the prosecution, the applicant suffered a substantial miscarriage of justice. The court found that the jury was not properly directed about the mens rea requirements for complicity in relation to the offences of supplying drugs to persons under 18 and sexual penetration of a child under the age of 12. The jury was misdirected in that it was not required to be satisfied to the criminal standard that the applicant knew the complainants were under 18 for the drug supply charges and under 12 for the sexual penetration charges.

The appeal was allowed, and the convictions on the complicity charges were set aside. The applicant was resentenced on the remaining charges. The court's decision was based on the principles set out in the cases of Giorgianni v The Queen and R v LK, which established that the prosecution must prove the mens rea elements of an offence to the criminal standard. The court held that the jury's misdirection about the burden of proof resulted in a substantial miscarriage of justice, and the convictions on the complicity charges were therefore set aside. The applicant's convictions for the remaining charges were upheld, and he was resentenced accordingly. This case highlights the importance of proper jury directions in criminal trials and the need for the prosecution to prove the mens rea elements of an offence to the criminal standard, particularly in cases involving complicity.