Azadzoi v County Court

[2013] VSC 161

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2012 04404

HISHMATTULAH AZADZOI	Plaintiff
v
COUNTY COURT OF VICTORIA KARA RODEN	First defendant Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2012
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Azadzoi v County Court of Victoria
MEDIUM NEUTRAL CITATION:	[2013] VSC 161

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CRIMINAL LAW – application for judicial review of conviction and sentence of plaintiff by judge of County Court of Victoria in appeal from Magistrates’ Court of Victoria – three charges of committing indecent act in presence of children aged under 16 years – acts committed in steam room of area of public aquatic centre reserved for persons aged 16 years and older – three girls aged 15, 14 and 14 years who looked older gained admission – whether intention of accused to commit act in presence of child known to be underage is element of offence – whether honest and reasonable mistake as to age is defence – third complainant was in sauna (a different room) when act committed – whether facts as found capable of answering statutory description of ‘presence’ – whether judge erred in jurisdiction or law on the face of the record – ‘absolute liability’ – ‘strict liability’ – ‘honest and reasonable mistake of fact’ – ‘presence’ – Crimes Act 1958 (Vic) s 47(1)-(3), Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr D W Gibson	Laura McDonough, Victorian Legal Aid
For the second defendant	Dr S B McNicol SC	Adrian Castle, Office of Public Prosecutions

HIS HONOUR:

INTRODUCTION

1. Hishmattulah Azadzoi (‘the plaintiff’) was convicted in the Magistrates’ Court of Victoria of charges of wilfully committing the indecent act of masturbating in the presence of three children under the age of 16 years contrary to s 47(1) of the Crimes Act 1958 (Vic). He was sentenced to imprisonment for 12 months to be served by way of an intensive corrections order.

1. His Honour Judge Coish dismissed the plaintiff’s appeal to the County Court of Victoria and again convicted him of the three charges.  As the plaintiff had a wife and five children, was previously of good character and had no prior convictions of any kind, his Honour imposed the lesser sentence of a community based order for 18 months with a condition that he complete a sex offender’s program.

1. The circumstances of the alleged offending were unusual.  In 2009 the plaintiff attended his local aquatic centre in a suburb of Melbourne.  It had a spa and separate sauna and steam rooms.  Entry to this area was forbidden to children under the age of 16 years.  There was a sign to that effect.  The three female complainants were friends aged 15, 14 and 14 years.  Appearing to be over the age of 16 years, they gained entry to the area by purchasing wrist tags from the admissions desk.  On the evidence before the judge, the plaintiff did the indecent act when alone in the steam room and while two of the complainants were looking at him through the door of that room.  The third complainant did not see and was not aware of what happened.  She was in the sauna which is separated from the steam room by the sauna and steam room walls and the area in between.  The plaintiff left the centre shortly afterwards.

1. The complainants complained to a centre manager who noted the plaintiff’s motor vehicle registration number as he was leaving.  The police were informed and they went to the plaintiff’s home.  In his record of interview, he denied performing the indecent act alleged.  He said the complainants had mistaken him scratching his genital region for him masturbating.  He also expressed strong surprise about the presence of the complainants in the area.  His belief was that no child under the age of 16 years was allowed to enter. 

1. Kara Roden (‘the second defendant’), a constable of police, brought five charges against the plaintiff: the three charges of wilfully committing the indecent act of masturbating in the presence of the three complainants contrary to s 47(1) of the Crimes Act, and two lesser charges, one of behaving in an indecent manner in a public place (the aquatic centre) contrary to s 17(1)(d) of the Summary Offences Act 1966 (Vic) and one of wilfully and obscenely exposing the genital area in a public place (the steam room) contrary to s 19 of that Act. At the hearing of the plaintiff’s appeal to the County Court, the fourth and fifth charges were withdrawn.

1. After the prosecution led its evidence, the plaintiff made a no-case submission contending that, as an element of the offence specified in s 47 of the Crimes Act, the prosecution had to prove that he intended to do the indecent act in the presence of a child whom he knew to be under the age of 16 years.  He contended alternatively that an honest and reasonable belief that the complainants were over that age was a defence.

1. The judge determined what the mental elements of s 47(1) were in the context of dismissing the plaintiff’s no-case submission. His Honour held that the mental element in the offence was that the accused had wilfully committed an indecent act in the presence of a child. He referred to the leading authorities and determined that, having regard to the terms and purposes of the provision, knowledge that the complainant was under the statutory age was not an element of the offence. It was sufficient for the accused to commit an indecent act in the presence of a child who was in fact under that age. Further, a mistake by the accused as to the complainant’s age, even if honest and reasonable, was not a defence. In reaching that conclusion, the judge accepted that consent was not an issue as the plaintiff was not relying on it.

1. After the judge ruled on the no-case submission, the plaintiff chose not to offer evidence and relied on his record of interview.  The judge found that he had masturbated in the steam room in the presence of the three complainants.  His Honour then convicted and sentenced the plaintiff in respect of the three charges.  He rejected the plaintiff’s argument that no offence had been committed in respect of the third complainant because she was not present when he committed the act.  The judge found that the offence had been committed in respect of the third complainant even though, on the evidence, she was in the sauna, was not outside the steam room looking in and did not see the act or know that it was occurring.

1. By reason of being found guilty of the three charges, the plaintiff must be entered and remain on the sex offenders’ register under the Sex Offenders Registration Act 2004 (Vic) for the remainder of his life. If he had been found not guilty of the charge in respect of the third complainant, the period of registration would have been fifteen years. Being on the register imposes extremely onerous reporting obligations and restrictions on the plaintiff. It also carries consequences under the Working with Children Act2005 (Vic) and other legislation.

1. Now to the present proceeding. In this court, the plaintiff seeks judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) of the orders of the judge convicting and sentencing him of the charges. On three grounds, he contends that jurisdictional errors and errors of law on the face of the record[1] were made:

   [1]The judge gave reasons for the ruling and the convictions and sentences. The reasons were recorded in the transcript of the hearing. Under s 10 of the Administrative Law Act 1978 (Vic), those reasons are taken to form part of the record. Further, the transcript of the hearing may be considered for the purpose of understanding those reasons: Easwaralingam v Director of Public Prosecutions (Vic) (2010) 208 A Crim R 122, 127 [22] (Tate JA, Buchanan JA agreeing).

(1) The judge misinterpreted s 47 of the Crimes Act by failing to require the prosecution to prove, as an element of the offence, that the plaintiff intended to commit the indecent act in the presence of children whom he knew were under the age of 16 years.

(2) Alternatively, the issue having been legitimately raised, the judge misinterpreted s 47 by failing to require the prosecution to prove that the plaintiff did not honestly and reasonably believe that the complainants were aged over 16 years.

(3) The judge misinterpreted s 47 in the meaning that he gave to the word ‘presence’ by finding that the plaintiff had committed the act in the presence of the third complainant when the found facts were incapable of answering that statutory description.

1. On those grounds, the plaintiff seeks orders in the nature of certiorari quashing the convictions and sentences and acquitting him of the three charges or, alternatively, orders in the nature of mandamus remitting the charges to the trial judge for reconsideration according to law.  The second defendant contends that the judge made no jurisdictional errors or errors of law and, if any such errors were made, that the proceeding must be remitted back to the County Court for reconsideration according to law.

INTENTION AND MISTAKE (GROUNDS (1) AND (2))

‘Absolute’ and ‘strict’ liability offences

1. The question is whether s 47(1) of the Crimes Act requires the prosecution to prove against an accused person that he or she had a guilty mind in respect of the age of the complainant, that is, that the accused intentionally committed the indecent act knowing that the complainant was under the age of 16 years. The second defendant contends that, as the trial judge held, the offence requires no such proof and is wholly established if the accused intentionally committed the act which was indecent, whether or not he or she knew that the complainant was under that age. In the catalogue of offences, that would make the offence in s 47(1) an ‘absolute liability’ offence.[2]

   [2]He Kaw Teh v The Queen (1985) 157 CLR 523, 590 (Dawson J) (‘He Kaw Teh’).

1. The plaintiff contends that proof of a guilty mind is required or, if not that, then honest and reasonable mistake as to age is a defence.  Here we are using the term ‘defence’ not in the pure technical sense but in that loose sense which is conveniently[3] used to describe an honest and reasonable belief by the accused in a state of affairs which, if true, would take the accused’s act ‘outside the operation of the enactment’[4] and be ‘a ground of exculpation’.[5] That would make the offence in s 47(1) a ‘strict liability’ offence.[6]

   [3]CTM v The Queen (2008) 236 CLR 440, 446 [6] (Gleeson CJ, Gummow, Crennan and Kiefel JJ) (‘CTM’).

   [4]Proudman v Dayman (1941) 67 CLR 536, 541 (Dixon J) (‘Proudman’).

   [5]CTM (2008) 236 CLR 440, 447 [8] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

   [6]He Kaw Teh (1985) 157 CLR 523, 590 (Dawson J).

1. The answer to this question depends on the proper interpretation of the provisions of s 47 as to which a general presumption applies in favour of intention and knowledge being an element of the offence or, if not, mistake being a defence. The question is whether the presumption has been displaced. The answer is not free from difficulty.

1. It is convenient to address the question under three headings. Now I will consider the principles governing the general presumption of interpretation, where there is much to find in support of the plaintiff’s case. Next I will consider the Victorian legislation historically, and previous decisions of the Full Court of this court, where there is much to find against the plaintiff’s case. Later I will apply the general principles to the interpretation of the provisions of s 47, on which the determination of the question in issue depends.

General presumption of interpretation

1. The general presumption was stated in the High Court of Australia in the earliest days of federation by Griffith CJ in Hardgrave v The King:[7]

The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident.  It is also a general rule that a person who does an act under a reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist.[8]

[7](1906) 4 CLR 232.

[8]Ibid 237.

1. This statement of the presumption reflected the common law, which had been authoratively stated in the United Kingdom several years earlier by Wright J in Sherras v De Rutzen:[9]

There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence;  but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.[10]

[9][1895] 1 QB 918 (‘Sherras’).

[10]Ibid 921 (reference omitted). This statement of principle was adopted by Gibbs CJ (Mason J agreeing) in He Kaw Teh (1985) 157 CLR 523, 528.

1. Wright J went on to specify three classes of case in which the presumption might be displaced:  (i) acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’;[11]  (ii) acts which are ‘public nuisances’;[12]  and (iii) ‘cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right’.[13]  In the plaintiff’s submission, the present case falls into none of these categories and we are here dealing with an example of a true statutory crime.  I accept that submission.  Indeed the crime is a serious one.

   [11]Sherras [1895] 1 QB 918, 922.

   [12]Ibid.

   [13]Ibid.

1. It must be said that the presumption has been applied with varying degrees of force over the years.   It was readily found to have been displaced in the much-debated[14] case of R v Prince[15] where 15 of 16 judges held that the accused had been properly convicted at trial of abducting a child under the age of 16 years[16] even though he honestly believed on reasonable grounds that she was over that age.   Blackburn J[17]  said:

It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent.  The man who has connection with a child, relying on her consent, does it as his peril, if she is below the statutable age.[18]

Likewise, in R v Maughan[19] Lord Hewart CJ, Avory and Roche JJ held that a reasonable and honest belief that a girl was over 16 years could never be a defence to a charge of indecent assault.[20]

[14]See Rupert Cross, ‘Centenary Reflections on Prince’s Case’ (1975) 91 Law Quarterly Review 540; PR Glazebrook, ‘How old did you think she was?’ (2001) 60(1) Cambridge Law Journal 26.

[15](1875) LR 2 CCR 154 (‘Prince’).

[16]Section 55 of the Offences Against the Person Act 1861 (UK) c 100 provided:

Whosoever shall unlawfully take or cause to be taken any unmarried Girl, being under the Age of Sixteen Years, out of the Possession and against the Will of her Father or Mother, or of any other person having the lawful Care or Charge of her, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

[17]With whom Cockburn CJ, Mellor, Lush, Quain, Denman, Archibald, Field and Lindley JJ and Pollock B agreed.

[18](1875) LR 2 CCR 154, 171-2.

[19](1934) 24 Cr App R 130 (‘Maughan’).

[20]Ibid 133-4.

1. So it is understandable that in, Proudman v Dayman,[21] Dixon J described the presumption as ‘but a weak one’.[22]  However, reflecting the ever increasing number of statutory offences, more stringent attention has recently been given to the presumption by the courts.  For example, in He Kaw Teh v The Queen,[23] Gibbs CJ emphasised that interpretation of statutory offences in accordance with the presumption was required by ‘the general principles of the common law which govern criminal responsibility’.[24]  Similarly, in the more recent case of CTM v The Queen,[25] Gleeson CJ, Gummow, Crennan and Kiefel JJ said the presumption involved ‘a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law’.[26]  The plaintiff presented his case in the context of this recent emphasis on the application of the presumption.

   [21](1941) 67 CLR 536.

   [22]Ibid 540.

   [23](1985) 157 CLR 523.

   [24]Ibid 528.

   [25](2008) 236 CLR 440.

   [26]Ibid 446 [5].

1. The rationale of the presumption is that it is repugnant to basic and long-accepted notions of criminal responsibility to hold a person to be guilty of a crime without some element of mental fault, such as intention or knowledge.  

1. In the emphatic words of Hayne J in CTM:[27]

To read a statute which creates a statutory offence that forms part of the general criminal law as subject to the general principles according to which the  criminal law is administered does no more than reflect the fact that ‘[s]ociety and the law have moved away from the primitive response of punishment for the actus reus alone’.[28] It avoids what has been called ‘the public scandal of convicting on a serious charge persons who are in no way blameworthy’.[29]  And ‘[i]t is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication’.[30]

[27](2008) 236 CLR 440, 483-4 [148].

[28]Leary v The Queen [1978] 1 SCR 29, 43 (Dickson J), cited by Stephen J in R v O’Connor (1980) 146 CLR 64, 96. See also He Kaw Teh (1985) 157 CLR 523, 565 (Brennan J).

[29]Sweet v Parsley [1970] AC 132, 150 (Lord Reid) (‘Sweet’), cited by Brennan J in He Kaw Teh (1985) 157 CLR 523, 565.

[30]He Kaw Teh (1985) 157 CLR 523, 566 (Brennan J).

1. On human rights grounds sharing much in common with those fundamental considerations, in Canada[31] and Ireland[32] the statutory creation of a crime without need of proof of a guilty mind has been held to be unconstitutional. In Australia, as in the United Kingdom, the legislature is free to enact a crime of that nature, but only by plainly displacing the presumption of interpretation.[33]   As stated by Cave J in R v Tolson:[34]

Now it is undoubtedly within the competence of the legislature to enact that a man shall be branded as a felon and punished for doing an act which he honestly and reasonably believes to be lawful and right;  just as the legislature may enact that a child or a lunatic shall be punished criminally for an act which he has been led to commit by the immaturity or perversion of his reasoning faculty.  But such a result seems so revolting to the moral sense that we ought to require the clearest and most indisputable evidence that such is the meaning of the Act.[35]

[31]R v Hess; R v Nguyen (1990) 2 SCR 906 (Lamer CJC, Wilson, La Forest, L’Heureux-Dubé and Sopinka JJ; Gonthier and McLachlin JJ dissenting) (‘Hess and Nguyen’).

[32]CC v Ireland [2006] 4 IR 1 (Murray CJ, Hardiman, Geoghegan, Fennelly and McCracken JJ) (‘CC’).

[33]The impact of s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on the interpretation of s 47 of the Crimes Act was not raised in this case and therefore I have not examined here the human rights issues which were discussed in Hess and Nguyen and CC.

[34](1889) 23 QBD 168 (‘Tolson’).

[35]Ibid 182.

1. This statement implicitly reveals that an important function of the presumptive principle is to mediate ‘the relationship between the courts and Parliament’ in respect of the interpretation of criminal law provisions.  Those words were written by Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM.[36]  In the same case, their Honours identified the close connection between the presumptive principle and the principle of legality.[37]  According to the principle of legality, as explained by Gleeson CJ in Plaintiff S157/2002 v Commonwealth:[38]

courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.[39]  As Lord Hoffmann recently pointed out in the United Kingdom,[40] for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.[41]

[36](2008) 236 CLR 440, 456 [34].

[37]Ibid 447 [7].

[38](2003) 211 CLR 476, 492 [30].

[39]Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) (footnote in quotation).

[40]R v Home Secretary; Ex parte Simms [2000] 2 AC 115, 131 (‘Simms’).

[41]See also Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).

1. This is the statement of Lord Hoffmann in R v Secretary of State for the Home Department;  Ex parte Simms[42] to which Gleeson CJ referred:

the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.  Fundamental rights cannot be overridden by general or ambiguous words.  This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.  In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.[43]

That, held Lord Steyn in B (A Minor) v Director of Public Prosecutions,[44] is the assumption on which ‘Parliament must be presumed to legislate’ and the ‘theoretical framework’ against which provisions must be interpreted.[45]

[42][2000] 2 AC 115.

[43]Ibid 131.

[44][2000] 2 AC 428 (‘B (A Minor)’).

[45]Ibid 470.

1. Adopting the same approach, in CTM, Gleeson CJ, Gummow, Crennan and Kiefel JJ said:

The common law principle in question reflects fundamental values as to criminal responsibility.  The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication.[46]

Not finding that plain intention, their Honours interpreted the provisions at issue such that an honest and reasonable mistake by the accused as to the age of a consenting party to sexual activity was an answer to an alleged contravention. 

[46](2008) 236 CLR 440, 456 [35].

1. I accept the general significance of the decision in CTM for the present case.  However, here the complainants were not consenting parties.  Further, it must be noted that the conclusion of the court in CTM was based on a careful analysis of the particular provisions in issue which, it has been emphasised, must always be the focus of attention.[47]  In relation to Victoria, the history of sex offence legislation and the previous decisions of the Full Court of this court have significance in this connection.

   [47]See eg R v Getachew (2012) 286 ALR 196, 198-9 [11] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

1. Tolson[48] illustrates the more stringent application of the presumption which occurred after Prince and which the plaintiff calls for in the present case. A woman was convicted of bigamy when she remarried within seven years after being deserted by her husband but believing reasonably and in good faith that he was dead. A strong majority of the Queen’s Bench Division quashed the conviction. I have already referred to the judgment of Cave J. His Honour held that the seven year exclusion period did not indicate that criminal liability was intended to be absolute within that period. The plaintiff advances a similar argument here based on s 47(2) of the Crimes Act.  Stephen J held that neither express words nor any implication showed that Parliament intended the woman to be criminally liable, and her conduct ‘was not in the smallest degree immoral, [but] perfectly natural and legitimate’.[49]  That cannot be said about the conduct of the plaintiff in this case.

   [48](1889) 23 QBD 168.

   [49]Ibid 191.

1. Tolson was followed by a majority of the High Court of Australia on very similar facts in Thomas v The King.[50]  As Hayne J pointed out in CTM,[51] in Thomas the High Court adopted the more stringent approach to the application of the presumption in Tolson, not the weaker approach adopted in Prince.  Admitting the force of the several strong statements of general principle in Thomas, I must note that there is a difference between the statutory offence of bigamy and that of committing indecent acts in the presence of children under the age of 16 years, particularly as regards the protective purposes of the latter. 

   [50](1937) 59 CLR 279 (Latham CJ, Rich and Dixon JJ; Starke and Evatt JJ dissenting) (‘Thomas’). 

   [51](2008) 236 CLR 440, 487 [160].

1. The accused in Sherras[52] likewise benefited from the application of the presumption.  He was a licensed victualler who was convicted of selling liquor to a police constable who was on duty but who appeared, and was honestly believed to be, off duty.  Day and Wright JJ quashed the conviction.  I have already referred to the judgment of Wright J.  Day J held that, on the interpretation of the provision in question, there was no offence where the accused ‘had no intention to do a wrongful act’ and where ‘he acted in a bonâ fide belief that the constable was off duty’.[53]  With some force, the plaintiff submits in the present case that, if so much was held in relation to a regulatory offence, all the more should it be held in relation to a true crime. 

   [52][1895] 1 QB 918.

   [53]Ibid 920.

1. Examples of the more stringent application of the presumption in sex offence cases can be found in New South Wales.  For example, in R v Turnbull[54] Jordon CJ (Davidson and Street JJ agreeing) applied the presumption to hold that the statutory offence of ‘knowingly’ suffering any girl aged under the 18 years to be in a brothel[55] was not committed where the accused did not know the age of the girl concerned.  The Chief Justice said:

The general rule as to mens rea is clear and plain.  It is a well established rule of the common law that an act is not criminal unless it is the product of a guilty mind.  Thus, mens rea has two elements – (1) a mind;  (2) which is guilty.[56]

His Honour held that this rule was not displaced in the case before the court and lamented the readiness of courts ‘to assume the role of legislators, and to fill imagined lacunae in penal statutes by the conjectural emendations of judges’[57] or by reference to the ‘general atmosphere of a statute’.[58] This is an example of the definite application of the presumption in the context of a true statutory crime having the purpose of protecting young women from sexual exploitation.  Arguably, the plaintiff’s case is analogous.  However, as we will see, there are Victorian decisions of high authority, also analogous, which are inconsistent with Turnbull.  Further, the Victorian legislation must be interpreted according to its own terms.

[54](1943) 44 SR (NSW) 108.

[55]Section 91D of the Crimes Act 1900 (NSW) provided:

Whosoever employs in, or under any circumstances whatever knowingly suffers to resort to, or be upon, any premises used as a brothel or house of ill-fame any girl under the age of 18 years, shall be liable to penal servitude for five years.

[56](1943) 44 SR (NSW) 108, 109.

[57]Ibid 110.

[58]Ibid 111.

1. The decision of the Privy Council in Lim Chin Aik v The Queen[59] is important because it shows that more than a protective purpose is required to displace the presumption. That consideration is directly relevant to the present case.  The question was whether mens rea was an element of a statutory immigration offence.  The Judicial Committee held that it was, rejecting the proposition that a displacing intention was sufficiently revealed by the nature and subject matter of the offence alone.[60]  Giving that judgment, Lord Evershed said:

it is not enough … merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended.  It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations.[61]

In words that influenced the subsequent development of the principle,[62] his Lordship went on the say that ‘there must be something [the defendant] can do, directly or indirectly … which will promote the observance of’ the law.[63]  Where the defendant could not avoid the possibility of committing the offence, ‘there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim’.[64]  I will come back to these principles frequently.

[59][1963] AC 160 (‘Lim Chin Aik’).

[60]Ibid 174-5.

[61]Ibid 174.

[62]See Sweet [1970] AC 132, 163 (Lord Diplock); Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1, 12-13, 14 (see especially proposition (5)) (‘Gammon’); He Kaw Teh (1985) 157 CLR 523, 530 (Gibbs CJ), 566-8 (Brennan J); B (A Minor) [2000] 2 AC 428, 464 (Lord Nicholls of Birkenhead).

[63]Lim Chin Aik [1963] AC 160, 174.

[64]Ibid.

1. Strong restatements of the presumption are to be found in the speeches in the House of Lords in Sweet v Parsley[65] which has been followed by the High Court.  A tenant of a farmhouse sublet some of its rooms. When the subtenants smoked cannabis without the tenant’s knowledge, she was convicted of allowing the premises to be so used.[66]  Unsurprisingly, the case went on appeal; surprisingly, it reached the House of Lords.

   [65][1970] AC 132.

   [66]Section 5 of the Dangerous Drugs Act 1965 (UK) c 15 provided:

   If a person – (a) being the occupier of any premises, permits those premises to be used for the purpose of smoking ... cannabis resin … or (b) is concerned in the management of any premises used for any such purpose as aforesaid;  he shall be guilty of an offence against this Act.

1. Applying the presumption, the House of Lords overturned the conviction.  Lord Reid spoke of the importance of applying the presumption in the interpretation of provisions creating true crimes:

a stigma … attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma.  So [a reasonable legislator] would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape.[67]

[67][1970] AC 132, 149.

Lord Morris said:

it has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principle of our law that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence.  It follows from this that there will not be guilt of an offence created by statute unless there is mens rea or unless Parliament has by the statute enacted that guilt may be established in cases where there is no mens rea.[68]

His Lordship went on to say that the courts looked to ‘the words of the enactment … to see whether either expressly or by necessary implication’ the presumption was displaced.[69]  Lord Diplock considered when a criminal provision might be interpreted so as to impose a higher than usual duty of care on the individual, which is a critical question in the present case:

where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether to participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act … But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly … which will promote the observance of the obligation.[70]

I will frequently return to these principles also.

[68]Ibid 152.

[69]Ibid.

[70]Ibid 163, referring to Lim Chin Aik [1963] AC 160, 174 (Privy Council).

1. He Kaw Teh[71] comes next and is the leading Australian authority.  Customs legislation made it an offence for a person to import or export prohibited goods or to have such goods in their possession without reasonable excuse.[72]  The court had to decide whether mens rea was an element of the offence.

   [71](1985) 157 CLR 523.

   [72]Section 233B(1) of the Customs Act 1901 (Cth) provided:

   Any person who – … (b) imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies; or (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act … shall be guilty of an offence.

1. Gibbs CJ, Mason, Brennan and Dawson JJ (Wilson J dissenting) held that the presumption that mens rea was required had not been displaced and that the prosecution bore the onus of proving that the accused knew they were importing prohibited goods. 

1. Citing and referring to authorities I have discussed,[73] Gibbs CJ said that, in deciding whether the presumption was displaced, the courts took into account ‘the words of the statute creating the offence’,[74] ‘the subject-matter with which the statute deals’[75] and ‘whether putting the defendant under strict liability will … promote the observance of the [provision]’.[76]  There is no dispute that this is the approach which must be adopted in this case.

   [73]Citing Lim Chin Aik [1963] AC 160, 174 (Privy Council) and referring to Sweet [1970] AC 132, 163 (Lord Diplock) and Gammon [1985] AC 1, 14 (Privy Council).

   [74](1985) 157 CLR 523, 529.

   [75]Ibid.

   [76]Ibid 530 (the quoted words are from Lim Chin Aik [1963] AC 160, 174 (Privy Council)).

1. Referring to Proudman, the Chief Justice pointed out that, between liability where mens rea had to be proved (ie the presumed position) and liability where it did not (ie absolute liability), there was a ‘middle course’[77] (ie strict liability).  Gibbs CJ said that this middle course applied where, on the proper interpretation of the provision,

an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.[78]

Although in the present case the plaintiff relied on the requirement of full mens rea in respect of all elements of the offence, his main submission was that this middle course applied in respect of the age ingredient.

[77]Ibid 533.

[78]Ibid. As explained by Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM, the term ‘innocent’ is being used in this context to mean ‘not guilty of a criminal offence’: (2008) 236 CLR 440, 447 [8].

1. After considering the various indicia, Gibbs CJ concluded that the presumption of mens rea had not been displaced.[79]  In doing so, he said:

it is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind.[80]

This conclusion was warranted because the ‘gravity of the offence suggest[ed] that guilty knowledge was intended to be an element of it’.[81]  Committing an indecent act in the presence of children carries a potential sentence of imprisonment for ten years.  Conviction comes with a heavy stigma.  It too is an offence of a grave and serious kind.  These indicia firmly support the plaintiff’s submissions.

[79]Ibid 537.

[80]Ibid 535.

[81]Ibid.

1. The detailed judgment of Brennan J supports the same general conclusions as Gibbs CJ in relation to the applicable principles[82] and the result.[83]  Brennan J also stressed the significance of the severity of the crime and the penalty which might be imposed.  He said that the offences were ‘truly criminal in character’.[84]  So is the one here.

   [82]Ibid 582 (summary of general principles).

   [83]Ibid 589.

   [84]Ibid 583.

1. Reflecting the same body of authority on which Gibbs CJ relied,[85] Brennan J dealt with the relevance of the purpose and enforcement of the statute in the application of the presumption.  His Honour said that the principles discussed in these authorities were based on a purpose of the criminal law, which was ‘to deter a person from engaging in prohibited conduct’.[86]  That purpose was not served by imposing criminal liability on persons who (for example) did not know the criminal nature of their conduct or who could not take effective precautions:

The penalties of the criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed).  It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee.[87]

His honour went on the describe the requirement of mens rea as ‘a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct’.[88]  Those observations are important in the resolution of the issues in the present case.

[85]Lim Chin Aik [1963] AC 160 (Privy Council); Sweet [1970] AC 132, 163 (Lord Diplock); Gammon [1985] AC 1, 12-13, 14 (Privy Council) (see especially proposition (5)).

[86]He Kaw Teh (1985) 157 CLR 523, 567.

[87]Ibid

[88]Ibid 568.

1. The plaintiff relied on, and the second defendant sought to distinguish, the recent decisions of the House of Lords in B (A Minor)[89] and R v K[90] in which the presumption was held not to have been displaced by provisions creating particular sexual offences.  The decisions are examples of the more stringent application of the presumption in the modern era.

   [89][2000] 2 AC 428.

   [90][2002] 1 AC 462.

1. In B (A Minor)[91] a boy aged 15 years sat on a bus next to a girl aged 13 years.  He kept asking her to perform oral sex which she repeatedly refused to do.  Although it was accepted that he honestly believed that the girl was aged over 14 years, he was convicted of the charge of inciting a girl aged under 14 years to commit an act of gross indecency.[92]  The House of Lords quashed the conviction.

   [91][2000] 2 AC 428.

   [92]Section 1(1) of the Indecency with Children Act 1960 (UK) c 33 provided:

   Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding [the prescribed sum], or to both.

1. In a judgment with which Lord Irvine LC and Lord MacKay agreed, Lord Nicholls of Birkenhead held that there was neither an express provision nor any necessary implication[93] ‘that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of [the] offence’.[94]  Having regard to the breadth of the offence and the gravity of the stigma and penal consequences, there were no sufficient grounds for interpreting the provisions otherwise.[95]  His Lordship did not accept that the purpose of the provision warranted a different conclusion:

The purpose of the section is, of course, to protect children.  An age ingredient was therefore an essential ingredient of the offence.  This factor in itself does not assist greatly.  Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender’s belief about the age of the ‘victim’ and irrespective of how the offender came to hold this belief.[96]

That statement is pertinent in the present case because it is an example of the application of the general principle enunciated in Lim Chin Aik in the context of the age ingredient of a sex offence.  But here the question is, as regards the specific legislation which is in question, whether there was more than a protective purpose to indicate a plain displacing intention.

[93]Lord Nicholls held that a ‘necessary implication’ was one that was ‘compellingly clear’: [2000] 2 AC 428, 464.

[94]Ibid 465.

[95]Ibid.

[96]Ibid 464.

1. The appellant in B (A Minor) lost in the Queen’s Bench Division before Brooke LJ and Tucker and Rougier JJ, largely because the court considered itself to be bound by a line of authority going back to Prince[97] and the  similar case of Maughan,[98] on which Brooke LJ made a famous attack.[99]  Prince and Maughan have influenced Victorian law (see below).  In reaching his conclusion, Lord Nicholls made observations about the weight to be given to these decisions.  Lord Nicholls refused to apply them because the provisions creating the offence in the case before the House of Lords, and the provisions creating the offences dealt with in Prince and Maughan, were not part of a coherent statutory scheme.[100]  That cannot be said of the Victorian provisions, which have always been part of a coherent statutory scheme and were recently interpreted as such by Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA in Clarkson v The Queen.[101]  Further, his Lordship considered that the reasoning in those decisions had to be understood in the light of the modern and more stringent approach to the nature and weight of the common law presumption.[102]  Given that the High Court has adopted that more stringent approach, that observation is applicable in Victoria.  But, it is still necessary to focus on whether the provisions in question, properly interpreted, plainly reveal a displacing intention.

   [97](1875) LR 2 CCR 154.

   [98](1934) 24 Cr App R 130.

   [99][2000] 2 AC 428, 444-51.

   [100]Ibid 465.

   [101](2011) 32 VR 361, 366-8 [16]-[25] (‘Clarkson’).

   [102][2000] 2 AC 428, 466.

1. Lord Steyn applied the principle of legality as explained by Lord Hoffman in Simms[103] and held that the presumption had not been displaced.[104]  In relation to Prince, Lord Steyn was very forthright.  His Lordship said that it was ‘a relic from an age dead and gone’, and it was ‘no longer possible to extract from Prince’s case a special principle of construction applicable only to age-based sexual offences’.[105]

   [103][2000] 2 AC 115, 131.

   [104][2000] 2 AC 428, 470, 477.

   [105]Ibid 476.

1. Prince thus appears to be a doubtful authority in the United Kingdom.[106]  In the Supreme Court of Ireland, it is regarded as ‘unsound and bad in law’,[107] ‘incorrect’[108] and not a ‘credible authority’.[109]  In CTM, Hayne J questioned whether Prince could be reconciled with more modern authority.[110]  But, as we will see, it has been followed on three occasions in sex offence cases by the Full Court of the Supreme Court of Victoria. 

   [106]Prince was cited in argument in Sweet but not referred to in any of the judgments in the House of Lords.

   [107]CC [2006] 4 IR 1, 26 [45] (Denham J) (as her Honour then was).

   [108]Ibid 44 [113] (Geoghegan J, Hardiman J agreeing).

   [109]Ibid 60 [149] (Fennelly J).

   [110](2008) 236 CLR 440, 487 [160]; see also 485 [155].

1. Despite the doubts surrounding Prince as an authority and the decision in B (A Minor), it appears that there are limits to the application of the presumption in sex offence cases.  That is illustrated by R v K.[111]  A man aged 26 years was charged with indecently assaulting a girl aged 14 years.  He claimed that the sexual activity was consensual and that she told him she was aged 16 years.  Under the statute, consent could not be given by a girl under the age of 16 years.[112] The question was whether, in the light of that provision, the requirement to prove the mental element in relation to age was excluded in a case where a girl under that age had consented. A similar (but not identical) question arises in the present case in relation to s 47(2) of the Crimes Act.  The House of Lords answered the question in favour of the accused by holding that it was necessary to prove the mental element. 

   [111][2002] 1 AC 462.

   [112]Section 14 of the Sexual Offences Act 1956 (UK) c 69 provided:

   (1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.  (2) A girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.  (3) Where a marriage is invalid under section two of the Marriage Act 1949, or section one of the Age of Marriage Act 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief.  (4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective.

1. The leading judgment was delivered by Lord Bingham of Cornhill.[113]  His Lordship discussed, ‘without admiration’,[114] the legislative history of sex offence legislation in the United Kingdom and the inconsistent decisions of the courts on the interpretation of the provisions.  He emphatically restated and applied the presumption to hold that the provisions in question did not exclude the requirement to prove the mental element in a case where the complainant had consented.[115]  It was therefore necessary for the prosecution to prove ‘an absence of genuine belief on the part of a defendant as to the age of [a consenting] under-age victim’.[116]

   [113]Lord Nicholls of Birkenhead, Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett agreed.

   [114]CTM (2008) 236 CLR 440, 450 [17] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

   [115][2002] 1 AC 462, 471-4 [16]-[21].

   [116]Ibid 474 [20].

1. However, Lord Bingham expressly confined that conclusion to the case of an accused who, under s 14(2) of the Sexual Offences Act, was relying on the consent of a female complainant.  While the provision was to be interpreted as not excluding the requirement to prove the mental element as to age, this did not have ‘any bearing on a case in which the victim does not in fact consent’.[117] Where the allegation was that the accused had indecently assaulted a woman contrary to s 14(1) and consent under s 14(2) was not being relied on, ‘any belief by the defendant concerning her age is irrelevant, since her age is relevant only to her capacity to consent’.[118]

   [117]Ibid 474 [23].

   [118]Ibid.

1. B (A Minor) and R v K may be compared, or perhaps contrasted, with the subsequent decision of the House of Lords in R v G.[119]  There the legislation specifically criminalised the intentional sexual penetration of persons under the age of 13 years.[120]  The main issue was whether the strict liability nature of the offence, and the conviction of a child offender aged 15 years for rape of a complainant aged 12 years (whom the offender believed to be aged 15 years) breached the offender’s human rights.  It was held that the accused’s human rights were not breached by these circumstances.[121] 

   [119][2009] 1 AC 92.

   [120]Section 5 of the Sexual Offences Act 2003 (UK) c 42 provided: 

   (1) A person commits an offence if – (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis;  and (b) the other person is under 13.  (2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

   [121]It was unanimously decided by Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Mance that there was no breach of the accused’s human right to a fair trial.  A narrow majority decided that there had been no breach of his human right to privacy (Lord Hoffmann, Baroness Hale of Richmond and Lord Mance (Lord Hope of Craighead and Lord Carswell dissenting)).

1. In the course of giving judgment, several of the Lords commented on the nature of the offence and the importance of the protective policy of the legislation.  In relation to the strict liability nature of the offence, Lord Hoffmann said ‘the language and structure’ of the provision made it clear that the prosecution did not have to prove the accused’s knowledge of the complainant’s age.[122]  His Lordship then referred to the policy of the legislation: 

The policy of the legislation is to protect children.  If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are.  To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.[123]

Lord Hope of Craighead said Parliament had deliberately decided that mistake as to age would not be a defence.[124]  Baroness Hale of Richmond stressed the protective purposes of the legislation, which made it irrelevant whether the complainant consented or the accused knew her age.[125]  Lord Mance did likewise.[126] 

[122][2009] 1 AC 92, 96 [3].

[123]Ibid 96-7 [3].

[124]Ibid 100-1 [21].

[125]Ibid 108 [45]; see also 109 [49].

[126]Ibid 114 [71]-[72].

1. As we will see, R v G was extensively cited by Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA in a related context in Clarkson,[127] especially as regards the importance of the protective purpose of the provisions.

   [127](2011) 32 VR 361, 370-1 [30]-[33].

1. Tending against the plaintiff’s submissions is the South Australian case R v Clarke.[128]  A woman was convicted of a charge of producing child pornography[129] and another charge of inciting a child to commit an indecent act.[130]  The trial judge, his Honour Judge Boylan, found that the accused truly believed that the two girls were aged 17 years and therefore not children.[131]  His Honour found that they ‘could easily be taken to be 17’.[132]  But he held that an honest and reasonable mistake of age was not a defence.  Doyle CJ, Bleby and David JJ upheld the decision of the trial judge and dismissed the appeal.  Special leave to appeal was refused by the High Court.[133]

   [128](2008) 100 SASR 363 (‘Clarke’).

   [129]Section 63 of the Criminal Law Consolidation Act 1935 (SA) provided:

   A person who – (a) produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or (b) disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature, is guilty of an offence.  Maximum penalty:  Imprisonment for 10 years.

   [130]Section 63B(1) of the Criminal Law Consolidation Act provided: 

   (1) A person who – (a) incites or procures the commission by a child of an indecent act; or (b) acting for a prurient purpose – (i) causes or induces a child to expose any part of his or her body; or (ii) makes a photographic, electronic or other record from which the image, or images, of a child engaged in a private act may be reproduced, is guilty of an offence.  Maximum penalty:  Imprisonment for 10 years.

   [131]Section 62 of the Criminal Law Consolidation Act defined ‘child’ to mean ‘a person under, or apparently under, the age of 16 years’.

   [132]R v Clarke [2007] SADC 128 (6 December 2007) [11].

   [133]Transcript of Proceedings, Clarke v The Queen [2008] HCATrans 376 (13 November 2008) (French CJ and Crennan J).

1. The trial judge analysed the provisions in question in the context of the South Australian sex offender legislation as a whole.  His Honour held that, unlike the legislation in the United Kingdom, the various provisions of the South Australian legislation were part of a ‘coherent statutory scheme’.[134]  It was the policy of that scheme ‘that there be absolute liability as to the age ingredient in sexual offences against children under 16’.[135]  Doyle CJ (David J agreeing) agreed with the trial judge that this was the established approach to the interpretation of the South Australia legislation.[136]  As we will see, this is also the established approach in the interpretation of the Victorian legislation.

   [134]R v Clarke [2007] SADC 128 (6 December 2007) [20].

   [135]Ibid [15].

   [136]Clarke (2008) 100 SASR 363, 372-3 [31]-[33].

1. The leading judgment in the Court of Criminal Appeal was delivered by Doyle CJ.  The Chief Justice made extensive reference to the leading authorities, which I have discussed in this judgment.  In determining whether the presumption was displaced, his Honour paid particular regard to the considerations identified by Gibbs CJ in He Kaw Teh.[137]  As I have indicated, these considerations are the terms of the provisions in question, the purpose and subject matter of the legislation and the interpretation which would assist in promoting observance of the statutory scheme.

   [137](1985) 157 CLR 523 .

1. Doyle CJ accepted that several important considerations pointed to the conclusion that displacing the presumption was not intended, including the heavy stigma attaching to the offences and the severe penalties involved.  However, his Honour said that it was possible to understand why Parliament would penalise those producingt pornography without realising that the subjects were children:

The reason for taking that approach would be that the suppression of child pornography is sufficiently important to punish not only risk takers (those who do not have an honest and reasonable belief that a child is not involved), but also those who have an honest and reasonable belief that a child is not involved.  The justification for punishing the latter group would be, on this hypothesis, that the suppression of the production of the trade in child pornography warrants such a stringent approach.[138]

[138](2008) 100 SASR 363, 374 [39].

1. Both Doyle CJ and Bleby J considered that it was feasible for potential offenders to take precautions and that accidental behaviour would not be punished[139] and that the policy of the legislation required those producing pornography to take steps to avoid the risk of involvement by children.[140] In that connection, Bleby J said:

in offences created by [the provisions in question] a choice is made to engage in the relevant conduct.  It would be most unusual for there to be an accidental committing of the actus reus.  Where there is no available proof of age, a potential offender must be taken to be aware of the possibility that, notwithstanding an honest and reasonably held belief that the child is of or above the age of 16, that person may turn out to be under 16.  The actual conduct, rather than being accidental, is deliberate.  The risk of possible offending is present notwithstanding the reasonably held belief as to the child’s age.[141]

His Honour went on the say that, as the offending liability could be avoided, the ‘imposition of absolute liability for these offences would encourage greater vigilance to prevent the commission of the prohibited acts’.[142]  That applies equally to the provision which is at issue in the present case.

[139]Ibid 375-6 [49] (Doyle CJ), 381 [79], 386 [103] (Bleby J).

[140]Ibid 374 [39] (Doyle CJ), 386 [103] (Bleby J).

[141]Ibid 381 [79].

[142]Ibid 386 [103].

1. In refusing special leave to appeal, French CJ said (for his Honour and Crennan J):

In our opinion, the case raises a question of statutory construction.  It is a question particular to the South Australian legislation.  There appears to be no error of principle and nothing inconsistent with the interpretation principles enunciated in the decision of this Court of CTM.

The decision of the Full Court is not attended with sufficient doubt to warrant the grant of special leave.[143]

Their Honours refused special leave to appeal even though the Court of Criminal Appeal of the Supreme Court of South Australia had relied on the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in CTM v The Queen[144] which was later overturned by the High Court in CTM[145] and even though, in that latter decision, the High Court held that honest and reasonable mistake as to age was a ground of exculpation in respect of the New South Wales statutory offence which was in issue. 

[143]Transcript of Proceedings, Clarke v The Queen [2008] HCATrans 376 (13 November 2008) 422-8.

[144](2007) 171 A Crim R 371.

[145](2008) 236 CLR 440.

1. Understandably, the plaintiff relies heavily on the decision of the High Court in CTM. So it is necessary to examine it closely. The offence in issue was specified in s 66C(3) of the Crimes Act 1900 (NSW), which provided that ‘[a]ny person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years’. By s 77(2) of that Act, it was a defence to a charge under s 66C(3) that the complainant consented and was reasonably believed by the accused to be above the age of 16 years. That defence was repealed by the Crimes Amendment (Sexual Offences) Act 2003 (NSW).

1. The facts of CTM involved a boy aged 17 years who was found guilty of a charge under s 66C(3) after having consensual[146] sexual intercourse with a girl aged 15 years. In an interview with police, he stated that the complainant had told him that she was aged 16 years. It was common ground that the trial judge had misdirected the jury in relation to the issue of mistake of age. In dismissing the appeal, Hodgson JA, Howie and Price JJ held that honest and reasonable mistake of age was not a ground of exculpation in relation to a charge under s 66C(3).[147]  The High Court held that this ground of exculpation was available to the charge,[148] but that the appeal should be dismissed because the accused had not satisfied the evidentiary burden necessary to raise it.[149]

   [146]The jury found the accused to be not guilty of alternative charges of having non-consensual sexual intercourse with the complainant: ibid 458 [45] (Kirby J) and 494 [186] (Hayne J).

   [147](2007) 171 A Crim R 371, 404 [148].

   [148](2008) 236 CLR 440 (Gleeson CJ, Gummow, Hayne, Crennan, Kiefel JJ; Hayden J contra).

   [149]Ibid (Gleeson CJ, Gummow, Hayne, Crennan and Kiefel JJ; Kirby J dissenting).

1. It can be seen from the facts of CTM that it was concerned with the availability of honest and reasonable mistake of age as a defence where the sexual activity was consensual.  In the present case, the complainants did not consent to being exposed to the plaintiff’s indecent act.  However, the plurality judgment in CTM contains the most recent statements of the court in respect of the general availability of the defence.  As I have already mentioned, Gleeson CJ, Gummow, Crennan and Kiefel JJ held that the requirement of mental fault was a ‘basic legal principle of criminal responsibility’, but the presumption that mental fault had to be proved could be excluded by a ‘sufficiently plain manifestation of legislative intention’.[150]  Paying particular attention to the provisions of the New South Wales legislation, the plurality decided that the presumption was not displaced.  It was held that an ‘honest and reasonable belief that the other party to sexual activity is above the age of sixteen years is an answer to a charge of contravention’ of the provision.[151]  Hayne J adopted the same approach of analysing the particular provisions in question and reached the same conclusion.[152]

   [150]Ibid 446 [5].

   [151]Ibid 456 [35].

   [152]Ibid 490 [172].

1. The plurality referred to the difficulty of determining the nature and scope of a provision which made it a serious crime to have sexual relations with a female of a certain age.  Their Honours said that, in considering such a provision,

it is impossible to ignore the case of an alleged offender who honestly and reasonably believes that the female is above the specified age.  It would be absurd to suggest that honest and reasonable mistakes of that kind are never made.[153]

Their Honours also referred to the considerations that the provisions in question applied to sexual conduct between offenders and victims who were approximately of the same age and to offenders who were not sexual predators but were themselves children engaged in consensual sexual activity.[154]  Hayne J made similar remarks.[155]  In the present case, the statutory crime also covers a wide range of offending conduct.

[153]Ibid 449 [15].

[154]Ibid 449-50 [16].

[155]Ibid 490 [171]-[172].

1. I have already referred to the judgment of Jordon CJ, Davidson and Street JJ in Turnbull[156] in which it was held that knowledge of age was an ingredient of the statutory offence in New South Wales of allowing a child to be in a brothel.  In another New South Wales case, Chard v Wallis,[157] Roden J (applying Tolson, Proudman and He Kaw Teh) held that a reasonable mistake as to age was a defence to a charge of offending against s 78Q(2) of the Crimes Act 1900 (NSW) by performing an act of gross indecency upon a male person under the age of 18 years. In support of that conclusion, his Honour said:

To those brought up under the Common Law, there is something repugnant about the notion that a person can be guilty of a serious criminal offence by accident.[158]

With respect, I would endorse that remark.  Later I will examine whether it can truly be said that the plaintiff in this case has been convicted of committing a serious criminal offence by accident.

[156](1943) 44 SR (NSW) 108.

[157](1988) 12 NSWLR 453 (‘Chard’).

[158]Ibid 455.

1. In the Court of Criminal Appeal in CTM v The Queen,[159] Howie J doubted the correctness of the decision of Roden J in Chard.  However, in the High Court in CTM the plurality said the decision had stood for some time, the framers of the legislation at issue must have been aware of it and there was no indication that the legislation had been enacted so as to reverse it.[160] As we will now see, the same reasoning applies with equal force to the Victorian legislation, but towards the opposite conclusion.

   [159](2007) 171 A Crim R 371, 400-1 [130].

   [160](2008) 236 CLR 440, 450 [18] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

Victorian sex offence legislation

1. I will take as my starting point the Criminal Law and Practice Statute 1864 (Vic) because it was the subject of the decision of the Full Court of this Court in R v Gibson.[161]   The Act appears to have been derived from the Offences Against the Person Act 1861 (UK), as was the equivalent legislation in New South Wales.[162]  But the Victorian legislation was never a clone of its parent.  Even as enacted it was different in relevant respects to the legislation in the United Kingdom (and New South Wales).  As time went on, the differences became wider.

   [161](1885) 11 VLR 94 (Higinbotham, William and Holroyd JJ) (‘Gibson’).

   [162]See CTM (2008) 236 CLR 440, 485 [152]-[153] (Hayne J).

1. Division (6) of our 1864 Act contained a series of offences dealing with ‘Rape[,] Abduction and the Defilement of Women’.  Divisions (7) and (8) contained the offences of child-stealing and bigamy.  A mental element was expressly specified as part of the crimes of attempted rape of a woman (s 43) or girl (s 46), abduction and forcible abduction of a woman of any age (ss 50 and 51) and child-stealing (s 53).  A mental element was not expressly specified for the other offences.  For example, s 45 provided:

Whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years shall be guilty of felony and being convicted thereof shall suffer death.

Under s 46, the same offence in respect of a girl above the age of 10 years and under the age of 12 years was a misdemeanour punishable by imprisonment for 10 years.  In neither case was knowledge of the age of the girl specified to be an element of the offence.

1. The crime at issue in Gibson was indecently assaulting a girl under the age of 12 years contrary to s 48 of the 1864 Act.[163]  There too knowledge of the age of the girl was not expressly specified to be an element of the offence.  The question was whether a drunken man had committed the offence by indecently assaulting a girl whom he had found in the dark in a brothel and did not know to be aged under 12 years.  On a special case stated for the Full Court, Higinbotham, Williams and Holroyd JJ held that he did.

   [163]Section 48 provided:

   Whosoever shall unlawfully and indecently assault any girl under twelve years of age whether such assault be with or without the consent of such girl shall be guilty of a misdemeanour and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding three years.

1. Delivering the judgment of the court, Higinbotham J treated s 48 as one of a series of provisions dealing with crimes against girls and women, that is, as part of a coherent statutory scheme.  As I have done, his Honour noted that some of the provisions did, and others did not, make intent an element of the crime.  As regards crimes against girls containing an age ingredient, he acknowledged that, in a large number of cases, the accused might have ‘reasonable or plausible’ grounds for believing the girl was beyond the protected age.[164]  However, the criminal liability of the accused turned on the intention of the legislature.[165]  Applying the judgment of the majority in Prince, his Honour held that bona fide ignorance of the age of the girl concerned was not an excuse.[166]

   [164](1885) 11 VLR 94, 97.

   [165]Ibid 97-8.

   [166]Ibid 97, 100.

1. That was in 1885.  To my knowledge, the judgment of the Full Court in Gibson has never been doubted or overturned.  It was followed by the Full Court in R v Peters[167] and R v Kennedy.[168]

   [167][1956] VLR 743 (Herring CJ, Martin and Barry JJ) (‘Peters’).

   [168][1981] VR 565 (Young CJ, Starke and Brooking JJ) (‘Kennedy’).

1. Looking at the Crimes Act 1891 (Vic), the Crimes Act 1915 (Vic) and the Crimes Act 1928 (Vic), it clear that, in the period between Gibson and Peters (which was decided in 1956), the relevant offences were re-enacted, sometimes in amended form, and the provisions remained grouped in a single division of the Act.

1. Looking at the Criminal Law Amendment Act 1885 (UK), it is clear that, after Prince, the United Kingdom made reasonable mistake as to age an excuse to the crime of consensual carnal knowledge of a girl aged between 13 and 16 years[169] and abduction of a girl under the age of 18 years with intent to have carnal knowledge.[170] 

   [169]Section 5 specified this proviso:

   Provided that it shall be a sufficient defence to any charge under sub-section one of this section if it shall be made to appear to the court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years.

   [170]Ibid s 7.

1. Looking again at the Crimes Act 1891, it referred to[171] and adopted some of the changes to the law which had been made by the amending legislation in the United Kingdom.  But Parliament did not make reasonable mistake of age a free-standing defence to any of the sexual crimes, no matter what the age of the complainant.  No Victorian legislation since has introduced such a defence.

   [171]See the notes beside ss 5, 11(2), 14(1), 15(1) and 17(1) etc.

1. Our Act of 1891 did abolish the defence of consent, subject to limited exceptions.  By s 6, consent to the crime of carnal knowledge of a girl under the age of 16 was not available as a defence, unless the girl was older or of the same age as the accused (the so-called ‘young man’s defence’).[172]  The 1928 consolidation, which was in force when Peters was decided, was to the same effect.   Further, by s 46(2) of the 1928 Act, consent was no defence to the crime where the accused was over 21 years and the girl was aged between 16 and 18 years.  By s 48(3), consent was no defence where the crime was incestuous.  By s 51(2), consent was no defence to the crime of unlawfully and indecently assaulting a girl under the age of 16 years.  None of the provisions of the 1891 or the 1928 Acts made reasonable mistake of age a free-standing defence.

   [172]Section 6 provided:

   It shall be no defence to any charge presentment indictment or information for unlawfully and carnally knowing, or for attempting or for assaulting with intent unlawfully and carnally to know, any girl under the age of sixteen years that such carnal knowledge or attempt to have carnal knowledge or assault with intent was or was made with the consent of such girl unless such girl be older than or of the same age as the defendant.

1. In Peters, the accused sought leave to appeal against conviction on the ground that it was an excuse to a charge against s 44(1) of the 1928 Act[173] of carnally knowing a girl over the age of 10 years and below the age of 16 years for the accused to believe on reasonable grounds that the girl was aged over 16 years.  The trial judge had instructed the jury that this was not an excuse.  Leave to appeal was refused.  Herring CJ (Martin and Barry JJ agreeing) said[174] that the judge had done ‘what has been done in [Victorian] Courts since’ Gibson and Prince. Holding that the issue was one of legislative intention, the Chief Justice said that, following these decisions, provisions creating sexual offences of this nature were interpreted such that knowledge of age was not an element:

The majority in Prince’s Case said that a man, who has connection with a child, relying on her consent, does it at his peril, if she is below the statutory age.  The Full Court in Gibson’s Case adopted this statement, and since then in Victoria this principle has been applied in cases falling under sec. 44(1) and kindred sections.  It is too late now to apply to this Court to adopt a different view.[175]

That was in 1956.  If it was too late then to adopt a different view, it is even later now, and only the Court of Appeal (or the High Court) could do it.  Further, in 1981 came Kennedy, where the same approach was taken in relation to another of these ‘kindred sections’.

[173]Section 44(1) provided:

Whosoever unlawfully and carnally knows any girl of or above the age of ten and under the age of sixteen years shall be guilty of felony, and shall be liable to imprisonment for a term of not more than ten years; but if he is a schoolmaster or teacher, and such girl his pupil, he shall be liable to imprisonment for a term of not more than fifteen years.

[174][1956] VLR 743, 744.

[175]Ibid 745 (footnotes omitted).

1. Between Peters and Kennedy, the law was consolidated in the Act of 1958 without relevant amendment.  The sexual offences remained grouped together in a single division.  

1. The accused in Kennedy appealed against a conviction for abducting a girl under the age of 18 years with intent carnally to know her contrary to s 59 of the 1958 Act.[176]  His defence was that he honestly and reasonably believed that the girl had her custodian’s permission to go with him, which the prosecution had not negatived.  Brooking J (Young CJ and Starke J concurring) held that, just as mistake of age was not a defence, so mistake of permission was not a defence.  That conclusion was given in terms which again approved of Prince and also Gibson and Peters:

It is clear enough that honest and reasonable mistake as to the age of the girl affords no defence to a charge under s 59, having regard to the nature of the offence and to the manifest object of the legislature in proscribing the conduct the subject of the section.[177] It would not be sensible to impose strict liability in relation to one necessary circumstance – the age of the girl – and to admit the defence of mistake in relation to another – the will of the custodian.[178]

[176]Section 59 provided:

Whosever with intent that any girl or woman under the age of eighteen years should be unlawfully and carnally known by any man whether such carnal knowledge is intended to be with any particular man or generally takes or causes to be taken such girl or woman out of the possession and against the will of her father or mother or any person having the lawful charge of her shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than two years (footnote omitted).

Brooking J noted that s 59 was derived from s 7 of the Criminal Law Amendment Act 1885 (UK) but differed from that provision ‘by omitting the proviso concerning reasonable mistakes as to age’: [1981] VR 565, 568.

[177]R v Prince (1875) LR 2 CCR 154; R v Gibson (1885) 11 VLR 94; R v Peters [1956] VLR 734.

[178][1981] VR 565, 568.

1. In the view of his Honour, this conclusion was justified by the purpose of the offence, which was ‘to protect girls and young women’.[179]  By reason of that purpose,  

persons who take girls and young women out of the possession and against the will of their parents or guardians should act at their peril not only as regards the age of the female but also as regards the will of the custodian.[180]

Applying the test applied by Dixon J in Thomas,[181] his Honour held that the presumptive availability of honest and reasonable mistake as an excuse was displaced by the ‘subject matter of the legislation’.[182]  Whatever doubts may surround the authority of Prince, the authority of Thomas is not in doubt.

[179]Ibid.

[180]Ibid.

[181](1937) 59 CLR 279, 305.

[182][1981] VR 565, 568.

1. Since Kennedy, the sex offence legislation has been significantly amended in the direction of enhancing its protective purpose, including the purpose of protecting children from sexual harm and exploitation.  Parliament and those drafting the amendments would have been aware of the law as stated in Gibson, Peters and Kennedy, but left it untouched. 

1. The Crimes (Sexual Offences) Act 1980 (Vic) amended pt 1, div 1 of the Crimes Act 1958 to add new sub-divisions, including sub-divs (8) (‘Sexual Assaults’) and (8A) (‘Sexual Offences against Young Persons’).  Besides introducing new offences and abolishing obsolete rules, the new provisions were expressed in gender-neutral terms.  The provisions did not introduce a free-standing mistake of age defence, but did continue the abolition of the general defence of consent, subject to limited exceptions. 

1. For example, under s 48(1), as amended, it was an offence to take part in an act of sexual penetration with a person who was aged above 10 years but under 16 years.  By s 48(4), the consent of the person was not a defence unless –

(a)the accused believed on reasonable grounds that the person was of or above the age of sixteen years;  or

(b)the accused was not more than two years older than the person.

This qualified defence of consent was attached to other sexual offences in similar terms,[183] including the offence of committing an act of gross indecency with a person aged under 16 years.[184]

[183]See eg ss 44(3) (sexual assault), 49(4) (sexual penetration with a person aged between 16 and 18 years).

[184]Section 50(3).

1. In R v Douglas,[185] the accused sought leave to appeal against a conviction for having sexual intercourse with a female above the age of 10 years and under the age of 16 years, contrary to s 48 of the 1958 Act (as amended).  Relying on s 48(4), his defence was that the complainant consented and he believed on reasonable grounds that she was aged over 16 years.  O’Brien J (Starke and Nathan JJ agreeing) dismissed the application for leave to appeal. In the course of doing so, his Honour held that ‘the onus of proof of the defence of mistake [of] age [where consent is alleged] lies upon the defendant’.[186]

   [185][1985] VR 721 (‘Douglas’).

   [186]Ibid 724.

1. After the judgment in Douglas was given, the High Court delivered judgment in He Kaw Teh.   Doubts then arose about whether the decision in Douglas that the onus of proof lies upon the defendant was consistent with the judgment in He KawTeh.  The issue was indirectly considered by Maxwell P, Vincent JA and Bongiorno AJA in R v Mark and Elmazofski[187] and directly considered by Vincent JA, Coldrey and Curtain AJJA in R v Deblasis and Deblasis.[188]  After referring to various inconsistent rulings on the issue by judges of the County Court, including the ruling of her Honour Judge King (as King J then was) that Douglas was decided per incurium,[189] Vincent JA, Coldrey and Curtain AJJA held in Deblasis and Deblasis that the issue had been settled in Mark and Elmazofski on the basis that it was for the prosecution to prove lack of consent and disprove honest and reasonable mistake of age where the issue was legitimately raised.[190] 

   [187][2006] VSCA 251 (24 November 2006) (‘Mark and Elmazofski’).

   [188](2007) 19 VR 128 (‘Deblasis and Deblasis’).

   [189]The ruling is set out in Deblasis and Deblasis: see (2007) 19 VR 128, 135.

   [190](2007) 19 VR 128, 131 [10].

1. The point is, the discussion in Douglas, Mark and Elmazofski and Deblasis and Deblasis as regards mistake of age was in the context of the qualified statutory defence of consent.  Nothing in the discussion in these cases casts doubt upon the decisions in Gibson, Peters and Kennedy that mistake of age as such was not a free-standing defence.

1. The accused in the present case was charged with the offence of committing an indecent act in the presence of a child under the age of 16 years contrary to s 47(1) of the 1958 Act. This provision was introduced by the Crimes (Sexual Offences) Act 1991 (Vic) which enacted the new sub-divs (8) to (8F) of the 1958 Act. Section 47 was introduced as part of the new sub-div (8C).

1. As so introduced, s 47 provided:

(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.

Penalty: Imprisonment for 10 years.

(2)Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence –

(a)the accused believed on reasonable grounds that the child was aged 16 or older;  or

1. Because this is reasonably foreseeable, potential offenders can take it into account when choosing whether or not deliberately to commit an indecent act in the presence of people in such a place.  They can take reasonably avoiding action simply by refraining from the commission of indecent acts where children might be.  If a potential offender goes ahead anyway and a person present happens to be a child under the age of 16 years, the offender has committed the act at their offender peril.  It is not right to say that the offender has walked accidentally into a situation where he or she might commit an indecent act in the presence of that child.  An interpretation of absolute liability would promote the observance of the provision in those circumstances.  Those are the circumstances of the present case.

1. So interpreted, s 47(1) would impose on potential offenders a greater duty of care to avoid liability than is normally required under the criminal law. The authorities establish that a court would not lightly interpret a provision in such a way. However, the subject matter and purposes of s 47 combine with the promotion of the observance of the legislative scheme to suggest that this was Parliament’s plain intention.

1. The subject matter of s 47(1) is the offence of committing an indecent act in the presence of a child under the age of 16 years. The cardinal purposes of the provision are protecting children from such acts, which includes protecting children from themselves, and deterring potential offenders. Imposing on potential offenders a duty of greater vigilance to avoid liability is consistent with the nature of the offence and the purpose of the provision: for the effective protection of children from indecent acts which children may in their immaturity seek out, the provision requires potential offenders to do more than usually required to avoid exposing children to such acts. Absolute liability promotes the observance of the provision in this way. Strict liability would do so to a significantly lesser extent. The force of this consideration is not as great in the case of child offenders who themselves may lack decision-making maturity. But the main target of the provision is the adult offender from whom children need protection most.

Presumption displaced

1. The subject matter and purpose of the legislation, the terms of the legislation and promoting observance of the legislative scheme plainly indicate by necessary implication that the interpretative presumption has been displaced and that Parliament intended the crime in s 47(1) to be one of absolute liability in respect of the age ingredient. In cases not involving consent as covered by s 47(2), honest and reasonable mistake of age is not available as a defence and the judge was correct to so conclude. The plaintiff’s application for judicial review of his convictions and sentences on the charges relating to the first and second complainants will be dismissed.

PRESENCE (GROUND (3))

1. Although the trial judge did not give particular reasons for finding that the third complainant had been present when the plaintiff committed the indecent act, his Honour found her to be a ‘straightforward witness of truth’.  On this basis, I think I should conclude that his Honour accepted her evidence on this issue.

1. The evidence of the third complainant was that she was in the sauna when the other two complainants observed the plaintiff commit the indecent act.  She deposed that she did not see the act being committed and was told about it afterwards by the first and second complainants.  There was no evidence that she knew the plaintiff was committing the act or that he knew she was in the sauna at the time.  There is no evidence of any communication or association between the plaintiff and the third complainant at the time.

1. On the other uncontested evidence, the sauna and the steam room were in separate rooms and there was a space in between.  Therefore, the plaintiff and the third complainant were separated by two walls and that space when the act was committed.  It was not possible for the plaintiff or the third complainant to see through the walls of the rooms into the other.  The first and second complainants were able to see what the plaintiff was doing in the steam room because they had left the sauna and were standing outside the steam room looking in.

1. It must be acknowledged that the judge was conscious that presence was an element of the offence and expressly found that all three complainants were present when the act was committed.  However, the plaintiff challenges that finding on the basis that it could not be supported by the unchallenged facts and therefore the judge committed a jurisdictional error or error of law on the face of the record.

1. The second defendant submitted that such errors were not established where the judge had simply made an error of fact, even an unreasonable or perverse error.  On her submissions, the judge applied the law to the facts as his Honour found them to be and in doing so properly discharged his judicial function.

1. There was debate before me about the precise nature of the jurisdictional error or error of law on the face of the record on which the plaintiff was relying. In the end, it became clear that the plaintiff was really submitting that the judge must have misinterpreted the word ‘presence’ in s 47(1) because the uncontested facts could not answer that description. I allowed an amendment of the grounds of the application accordingly.

1. This ground of review for jurisdictional error is well established.  In Hope v Bathurst City Council,[236] Mason J said that ‘[m]any authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law’.[237]  That statement of principle was approved by Gleeson CJ, Gummow and Crennan JJ in Vetter v Lake Macquarie City Council.[238]  However, their Honours went on[239] also to approve the statement made by Mason JA in Williams v Bill Williams Pty Ltd[240] that there will be no error of law where, on the facts, ‘it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views’.[241]  So, whether facts as found answer a statutory description is a question of law which implicitly turns on the proper interpretation of the provision in question.  But, no error of law is revealed simply because a trial judge has reached a view of the facts which is reasonably open about matters of fact and degree.

   [236](1980) 144 CLR 1.

   [237]Ibid 7.

   [238](2001) 202 CLR 439, 450 [24]; see also Hayne J 477-8 [108].

   [239]Ibid 451 [26].

   [240][1971] 1 NSWLR 547.

   [241]Ibid 557.

1. The decision-maker in the present case was a judge of the County Court of Victoria.  As established by such cases as Craig v South Australia[242] and Kirk v Industrial  Court (New South Wales),[243] there is a distinction between jurisdictional and non-jurisdictional error of law which takes account of the fact that the decision-maker was a judge of a court.  It is clear, however, that errors of law about the nature of the jurisdiction which the court is exercising are jurisdictional errors.  For a judge to make a decision which is outside the limits of the functions and powers conferred on the County Court by a statutory provision and to make orders which the judge does not have the power to make would, on the authorities, be a clear jurisdictional error.[244]  In the words of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk, an example of jurisdictional error is:

[M]isconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.[245]

The plaintiff submits that the trial judge committed that kind of error in convicting and sentencing him on the charge in relation to the third complainant when, on no view of the facts, did he commit the indecent act in her ‘presence’, as that word is to be properly interpreted.  I accept this submission, for reasons I will now give, beginning with the natural and ordinary meaning of the word, as given in the dictionaries.

[242](1995) 184 CLR 163 (‘Craig’).

[243](2010) 239 CLR 531 (‘Kirk’).

[244]Craig (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, 141 [163] (Hayne J); Kirk (2009) 239 CLR 531, 571 [66], 573-75 [72]-[74] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[245]Kirk (2010) 239 CLR 531, 574 [72].

1. The Macquarie Dictionary defines ‘presence’ to include ‘the state or fact of being present, as with others or in a place … immediate vicinity; close proximity’;  it defines ‘present’ to include ‘being with one or others’.[246]  The Oxford English Dictionary defines ‘presence’ to include ‘[t]he fact or condition of being present; the state of being before, in front of, or in the same place with a person’; it defines ‘present’ to include ‘[b]eing before, beside, with, or in the same place as the person to whom the word has relation’.[247]

   [246]Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5^th ed, 2009) 1313.

   [247]JA Simpson and ESC Weiner, The Oxford English Dictionary (Clarendon Press, 2^nd ed, 1989) vol XII, 393, 395.

1. It can be seen that the word ‘presence’ is capable of applying in a wide range of circumstances, depending on the context. Someone can be present with another in different ways. However, the dictionary meaning of the word emphasises the concept of physical proximity between the persons concerned. That physical proximity is the core concept of ‘presence’ in s 47(1) is borne out by cases which I will now examine.

1. The Court of Appeal decided in Clarkson that s 47(1) was to be interpreted in the context of the objectives in s 37A and the guiding principles in s 37B. Those provisions emphasise the protective purposes of the sex offences in the Crimes Act. The purposes of s 47 specifically are to protect children from the serious physical, emotional and social harm which is caused when they are exposed to indecent acts and to deter offenders from committing such acts with or in the presence of children. The purpose of the provision is as much to protect children from themselves as it is to protect them from others. Having regard to that context and those purposes, no narrow meaning is to be given to the word ‘presence’.

1. The proper interpretation of that word may be illustrated by reference to the interpretation which was adopted by the Court of Criminal Appeal of the Supreme Court of South Australia in R v AWL.[248] Section 58(1) of the Criminal Law Consolidation Act made it an offence for any person, in public or private, to commit ‘any act of gross indecency with, or in the presence of, any person under the age of sixteen years’.  The accused took a photograph of himself naked with his erect penis placed on the pillow close to the head of a sleeping child under that age.  The accused did not touch the child, who knew nothing about what he did.  The accused was found guilty at trial.

   [248][2003] SASC 416 (10 December 2003) (Prior, Debelle and Bleby JJ).

1. The Court of Criminal Appeal dismissed the appeal.  Debelle J (Prior and Bleby JJ agreeing) held that the expression ‘in the presence of’ indicated ‘that Parliament intended to cast the net very wide and include conduct not falling within the expression “with … any person”’ under the statutory age.[249]  The protection of children required ‘not only that they not see acts of gross indecency but also that they are not subjected to them or unknowingly involved in them so that later knowledge causes shame or affront’.[250]  Therefore ‘it is not an essential ingredient of the offence that the child saw the act or was aware of it’.[251] In my view, that reasoning applies equally to the offence in s 47(1) of our Act.

   [249]Ibid [11].

   [250]Ibid [12].

   [251]Ibid.

1. The Court of Appeal of this Court relevantly considered the interpretation of s 47(1) in TSR, Alexander and McKenzie, R v Coffey,[252] R v Barnes,[253] R v ADJ[254] and Savage v R.[255]

   [252](2003) 6 VR 543 (‘Coffey’).

   [253][2003] VSCA 156 (2 October 2003) (‘Barnes’).

   [254](2005) 153 A Crim R 324 (‘ADJ’).

   [255](2010) 29 VR 229 (‘Savage’).

1. It is here that I return to TSR. The accused had been charged with committing an indecent act ‘with’ a child. Analysing the history of s 47(1), Chernov JA (Phillips CJ and Phillips JA agreeing) rejected a submission that the provision was limited to cases where the indecent act was committed ‘with’ the willing participation, consent or co-operation of the child.[256]  The offence could be constituted

by an indecent act committed in front of the child, as well as by an indecent act committed on the person of the child, and in neither case is it necessary to know whether the child was consenting or even approving.  Indeed to hold to the contrary would seriously impinge upon what I conceive to have been the legislative intention.[257]

[256](2002) 5 VR 627, 656 [96].

[257]Ibid 656 [94].

1. In Alexander and McKenzie, one appellant had a telephone conversation with the complainant in which he encouraged the complainant to masturbate. He was convicted of committing an indecent act ‘with’ a child contrary to s 47(1). The Court of Appeal upheld the appeal and directed a verdict of acquittal to be entered. It was held that the involvement or participation of the complainant in a telephone conversation with the accused could not constitute the offence of committing an indecent act ‘with’ a child.

1. On the proper interpretation of the provision, Winneke P (Charles and Vincent JJA agreeing) held that the word ‘with’ required ‘actual physical contact’ with the complainant,[258] although ‘consent or concert’ on the part of the complainant was not required.[259]  The use of indecent language over the telephone by the accused towards the complainant did not amount to committing an offence ‘with’ the complainant.[260]  However, following TSR, his Honour also held that the expression ‘in the presence of’ comprehended a broader range of offending than the word ‘with’.[261]  

   [258](2002) 6 VR 53, 78 [52].

   [259]Ibid.

   [260]Ibid 77-8 [51].

   [261]Ibid 77 [51].

1. The accused in Coffey persuaded the complainant to perform a strip dance for him while the accused fondled himself. He pleaded guilty to a charge of committing an indecent act ‘with’ a child. On appeal, the accused contended that he could not be found guilty of the charge as framed because he had not done an indecent act ‘with’ the complainant. The Court of Appeal dismissed the appeal. Callaway AJA (Buchanan and Eames JJA agreeing) examined the history of s 47, emphasising its protective purposes.[262]  Applying TSR, his Honour held that s 47(1) created ‘a single, modern offence dealing with indecent acts involving children under the age of 16’.[263]  The accused had pleaded guilty to committing that single offence.  On the found facts, the accused did not commit an indecent act ‘with’ the complainant, but he had committed one ‘in the presence of’ the complainant.[264]

   [262](2003) 6 VR 543, 546 [10]ff.

   [263]Ibid 548 [17].

   [264]Ibid 550 [23].

1. On the proper interpretation of s 47(1), following Alexander and McKenzie, Callaway JA held that, juxtaposed with the word ‘with’, the expression ‘in the presence of’ was a wider one.  Actual physical contact was not required.[265]  Further, ‘[f]ine distinctions are inappropriate, particularly as indecent acts are as various as human imagination can make them’.[266]

   [265]Ibid 550 [20] and [23].

   [266]Ibid 550 [22].

1. Barnes was decided on the same day as Coffey. The accused had stared at the genitals of the complainant for five and 10 minutes respectively while the latter was naked or nearly so. Callaway JA (Buchanan and Eames JJA agreeing) upheld a conviction for committing an indecent act contrary to s 47(1). Following Coffey, it was held that, even if the act had not been committed ‘with’ the complainant because there had been no physical contact, the act had been committed in his ‘presence’.[267]

   [267][2003] VSCA 156 (2 October 2003) [8].

1. In ADJ, the Court of Appeal was required to consider whether a substantial miscarriage of justice had occurred when the accused was convicted of an offence against s 47(1) in circumstances where there had been no physical contact between the accused and the complainant when the act was committed. The accused had caused the complainant to assume indecent poses in front of him whereupon he took photographs and video recordings of the complainant in those poses.

1. Following the previous cases, Batt JA (Warren CJ and Chernov JA agreeing) held that no miscarriage of justice had occurred because physical contact between the accused and the complainant was not required for the indecent act to be ‘in the presence of’ the complainant.[268]

   [268](2005) 153 A Crim R 324, 333-4 [32].

1. Lastly there is Savage. The accused sent indecent images via his mobile telephone to the underage complainants. He pleaded guilty to committing indecent acts with or in the presence of a child contrary to s 47(1). On appeal, he submitted that, despite his plea of guilty, what he did was incapable in law of constituting that offence. Following TSR, Alexander and McKenzie and Coffey, Mandie JA (Redlich and Bongiorno JJA agreeing) accept that submission.

1. Mandie JA identified two relevant but separate questions of interpretation.  The first was whether the words ‘in the presence of’ extended to indecent acts committed by means of a telephone, computer or similar means of communication.  Following Alexander and McKenzie and Coffey, his Honour held that the words did not extend to those acts.[269]  The second question of interpretation was whether the acts had to be participatory or consensual.  Following TSR, his Honour held that the acts did not have to be participatory or consensual.[270]

   [269](2010) 29 VR 229, 240 [25].

   [270]Ibid.

1. In my view, consistently with the natural and ordinary meaning of the word ‘presence’, these authorities establish that, on the proper interpretation of s 47(1), the indecent act will be committed ‘in the presence of’ a child under the age of 16 years when the act is committed by the accused in the physical proximity of the child concerned. The child need not be aware that the indecent act is being committed. It is not necessary for the child to participate in or consent to the commission of the act. There need not be physical contact or other association between the accused and the child. However, presence being a physical state, the accused and the complainant must be in the physical proximity of each other.

1. While the present case is to be distinguished on the facts from all of these cases, the principles applied assist in the identification of the issue which must here be determined.  The third complainant and the plaintiff did not communicate while the indecent act was being committed.  That does not necessarily take the circumstances outside the meaning of ‘presence’.  The third complainant did not know that the act was being committed or participate (consensually or otherwise) in the commission of the act.  Again, the circumstances could still be within the statutory description.  There could be ‘presence’ even though no physical contact occurred between the third complainant and the plaintiff.  The act was committed physically by the plaintiff on himself, not verbally and remotely by telephone or other similar means.

1. When these features of the case are put to one side, it can be seen that the central question is whether the undisputed facts were capable of amounting to ‘presence’ having regard to the requirement of physical proximity.  In my view, the undisputed facts were not capable of amounting to ‘presence’.

1. The third complainant and the plaintiff were in different rooms which were separated by the walls of those rooms and the space in between.  Unlike the other two complainants, the third complainant was not immediately outside the steam room looking in while the acts were being committed.  At the material time she was in the sauna and the plaintiff was in the steam room.  They could not see each other.  This is not a case where the trial judge was making a decision about which reasonable minds could differ in relation to a question of fact and degree.  In my view, the facts were incapable of establishing that the plaintiff was physically proximate to the third complainant when the indecent act was committed.  The finding involved an error of law about the nature of the jurisdiction of the judge to try the plaintiff on the charge in respect of the third complainant.

1. The plaintiff is therefore entitled to orders by way of judicial review of the conviction and sentence in respect of the charge relating to the third complainant.  As the court is here exercising it supervisory judicial review jurisdiction and not its appellant jurisdiction, I am not prepared to make an order for the entering of an acquittal in respect of that charge.  The appropriate order is an order in the nature of certiorari quashing the conviction and sentence and an order in the nature of mandamus remitting the charge back to the trial judge for reconsideration according to law.

CONCLUSION

1. On the facts found by the trial judge, the plaintiff committed an indecent act in the steam room in an area of a public aquatic centre where children under the age of 16 years were not allowed to be.  Three girls under that age who looked older were admitted to the area.  Two of them were standing immediately outside the steam room and looking in when the plaintiff committed the indecent act.  The third did not see what happened because she was in the sauna, which is separate from the steam room. 

1. In this application for judicial review, the plaintiff challenged the legal basis of his conviction on three charges of committing an indecent act with or in the presence of a child under the age of 16 years contrary to s 47(1) of the Crimes Act.  He contended that he could not be convicted unless the prosecution proved that he intended to commit the act in the presence of a child whom he knew to be under the statutory age.  The prosecution offered no such proof.  Alternatively, he contended that honest and reasonable mistake as to the age of the complainants was a defence to the charges.  The judge ruled that the defence was not available.  Finally he contended that the third charge should have been dismissed because the act was not committed in the presence of that complainant who, at the material time, was in the sauna.

1. Whether intention or knowledge apply to elements of a statutory offence turns on the interpretation of the provision in question.  Whether honest and reasonable mistake of fact is a defence also raises a question of statutory interpretation.  According to the applicable principles, there is an interpretative presumption that intention and knowledge must be proved in respect of all of the elements or, if not that, then honest and reasonable mistake is a defence, subject to Parliament’s plain contrary intention.  When considering whether that plain contrary intention is indicated, the court examines the subject matter and the purpose of the legislation, the terms of the legislation and whether criminal liability without intention or knowledge, or honest and reasonable mistake as a defence, would promote observance of the legislative scheme.

1. After examining these matters, I have concluded that the trial judge was correct in deciding that, in respect of the age ingredient, intention and knowledge were not elements of the offence and honest and reasonable mistake was not a defence. The purposes of s 47(1) are to protect children under the age of 16 years from exposure to indecent acts and to deter potential offenders from engaging in such acts in places where children might be. The purpose of the provision is as much to protect children from themselves as it is to protect them from others. In my view, those purposes and promoting observance of the legislative scheme (among other things) plainly indicate that Parliament intended the offence to be one of absolute liability in relation to the age ingredient. Persons who commit indecent acts in places where children might be do so at their own peril.

1. In reaching this conclusion, I have taken into account that it is possible for potential offenders to take reasonable precautions to avoid criminal liability. On the interpretation which I think was plainly intended by Parliament, it is not possible to offend against s 47(1) by accident. To be convicted, the accused must have intended to commit an indecent act. Potential offenders can avoid liability by not committing such acts in places where children might be. So interpreted, the provision imposes on persons an obligation to take greater than usual care to avoid criminal liability. In my view, Parliament has deliberately imposed that obligation to take greater than usual care in order to protect children from others and also to protect children from themselves. This interpretation accords not just with Parliament’s plain intention and but also with decisions of the Full Court of this court in relation to similar statutory provisions.

1. The plaintiff committed the indecent act in the steam room of the sauna, spa and steam room area of a public aquatic centre.  He did the act at his peril.  Although that area was reserved for persons over the age of 16 years, it was foreseeable that children under that age who looked older might obtain unauthorised access to the area, which the complainants did.  The judge did not err in jurisdiction or law in convicting him on the charges relating to the presence of the first and second complainants.  I therefore dismiss the application for judicial review in respect of those charges.

1. In relation to the third complainant, a charge against s 47(1) can only be established if the accused committed the indecent act ‘with or in the presence’ of the underage child. The prosecution relied only on ‘presence’. The plaintiff did not commit the indecent act ‘with’ the third complainant (or the other two).

1. Properly interpreted, the ‘presence’ element in s 47(1) requires physical proximity between the accused and the complainant. In this case, it is not to the point that the third complainant was not aware of what the plaintiff was doing. It is not to the point that she did not participate in or consent to the indecent act in any way. It is not to the point that there was no physical contact or association between the two of them. If the accused and the third complainant were in the physical proximity of each other when the act was committed, none of that would matter. But the undisputed facts were that, at the material time, the third complainant was in the sauna and the plaintiff was in the steam room. There is a space in between. It was not possible for the third complainant to see into the steam room or for the plaintiff to see into the sauna. Those facts could not fall within the statutory concept of ‘presence’ and the judge erred in jurisdiction and law in convicting the plaintiff on the charge in respect of that complainant.

1. The plaintiff’s application for judicial review in respect of the convictions and sentences on the charges relating to the first and second complainants will be dismissed.  The plaintiff’s conviction and sentence on the charge relating to the third complainant will be quashed and that charge will be remitted to the trial judge for reconsideration according to law.

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