KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
CHAUNCEY AARON BELL APPELLANT
AND
STATE OF TASMANIA RESPONDENT
Bell v Tasmania
[2021] HCA 42
Dates of Hearing: 5 & 6 October 2021 Date of Judgment: 8 December 2021
H2/2020
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Tasmania
Representation
K L Baumeler with P J Willshire for the appellant (instructed by Philippa Willshire)
D G Coates SC with M C Figg for the respondent (instructed by Office of the Director of Public Prosecutions (Tas))
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with D R Osz for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General (Tas))
G A Thompson QC, Solicitor-General of the State of Queensland, with P M Clohessy for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
D T Kell SC with E S Jones for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bell v Tasmania
Criminal law – Defences – Honest and reasonable mistake of fact – Where appellant charged with supplying controlled drug to child contrary to s 14 of Misuse of Drugs Act 2001 (Tas) – Where appellant claimed he honestly and reasonably believed child was adult – Where appellant's conduct, had his belief been true, would have constituted lesser offence of supplying controlled drug contrary to s 26 of Misuse of Drugs Act – Where common law principle of honest and reasonable mistake of fact operates to excuse conduct that, on believed state of facts, would be innocent – Meaning of "innocent" – Whether appellant entitled to rely on excuse of honest and reasonable mistake of fact.
Words and phrases – "common law principle", "criminal responsibility", "excuse", "ground of exculpation", "honest and reasonable but mistaken belief in the existence of any state of facts", "innocent", "justification", "mistake as to age", "voluntary and intentional".
KIEFEL CJ AND KEANE J. The appellant was charged with one count of supplying a controlled drug to a child contrary to s 14 of the Misuse of Drugs Act 2001 (Tas). The appellant was also charged with one count of rape contrary to s 185(1) of the Criminal Code (Tas) ("the Tasmanian Code"). Both offences were alleged to have been committed against the same child, who was 15 years old at the time of the alleged offences. The Crown case was that the appellant injected the complainant with methylamphetamine and, sometime later, had sexual intercourse with her. In a record of interview with police, the appellant admitted to those acts, but claimed that the complainant told him, and he believed, that she was 20 years old.
The trial judge (Blow CJ) ruled that the defence…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bell v Tasmania [2021] HCA 42
Case
[2021] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from Mr Bell, who had been charged with supplying a controlled drug to a child contrary to s 14 of the *Misuse of Drugs Act 2001* (Tas). Mr Bell contended that he honestly and reasonably believed the complainant, who was 15 years old, was over the age of 18. The core of the dispute was whether this mistaken belief could operate as a defence to the charge.
The legal issue before the Court was whether the common law defence of honest and reasonable mistake of fact could excuse conduct that, if the mistaken belief were true, would still constitute a lesser offence under the same Act. Specifically, the Court had to determine the meaning of "innocent" in the context of this defence, and whether Mr Bell was entitled to rely on it.
The Court reasoned that the common law defence of honest and reasonable mistake of fact operates to excuse an accused's conduct entirely, such that if the facts believed were true, the conduct would be entirely innocent. In this case, even if Mr Bell's belief that the complainant was over 18 had been true, his actions would still have constituted the offence of supplying a controlled drug to another person, contrary to s 26 of the *Misuse of Drugs Act*. Therefore, the mistaken belief could not excuse the entirety of his conduct. The Court concluded that the trial judge was correct not to leave this defence to the jury, and the Court of Criminal Appeal of Tasmania was correct to dismiss Mr Bell's appeal.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The trial judge in this case, Blow CJ, was correct not to leave to the jury the excuse of honest and reasonable mistake of fact on the basis of Mr Bell's assertion that, for a charge of supplying a controlled drug to a child, he honestly and reasonably believed that the person was over the age of 18 years. That belief would nevertheless have amounted to another offence: the offence of supplying a controlled drug to another person. The Court of Criminal Appeal of the Supreme Court of Tasmania (Pearce and Brett JJ and Martin A‑J) was correct to dismiss the appeal. The appeal to this Court should be dismissed.Background In 2019, the appellant, Mr Bell, was charged with one count of supplying a controlled drug to a child, being a person under the age of 18 years[63], contrary to s 14 of the Misuse of Drugs Act 2001 (Tas). There is no statutory alternative conviction for s 14[64]. He was also charged with one count of rape, contrary to s 185(1) of the Criminal Code. By s 335 of the Criminal Code, a statutory alternative offence upon an indictment for rape is the offence in s 124 of sexual intercourse with a young person under 17 years of age. [63]Misuse of Drugs Act 2001 (Tas), s 3(1) (definition of "child").[64]See Criminal Code, s 332(1), together with the absence of any provision for an alternative conviction to s 14 in Misuse of Drugs Act, s 36A. The facts of Mr Bell's offending were as follows. Between midnight and 1 am on 13 October 2018, the complainant, who was 15 years old at the time, went to the house where Mr Bell was living. She was accompanied by a man called Mr Percy. They both went to the house to purchase drugs. Mr Percy bought methylamphetamine from a dealer who was living at the house with Mr Bell and Mr Percy then injected the methylamphetamine into his own arm. The complainant had no experience injecting drugs so Mr Bell injected methylamphetamine into her arm, which was the basis for the charge of supplying a controlled drug to a child. Mr Bell subsequently called a taxi for the complainant and Mr Percy. When the taxi arrived, Mr Bell invited the complainant to go for a walk with him rather than departing with Mr Percy. The complainant agreed to do so. Mr Bell and the complainant walked to a grassy area where sexual intercourse took place, which was the basis for the charge of rape and the statutory alternative of sexual intercourse with a young person under 17 years of age. At Mr Bell's first trial, the trial judge instructed the jury that they could not find Mr Bell guilty of the alternative offence of sexual intercourse with a young person under 17 years of age unless the jury were satisfied that Mr Bell did not hold an honest and reasonable mistaken belief that the complainant was aged 17 years or older. However, in relation to the offence of supplying a controlled drug to a child, the trial judge directed the jury that it made no difference if Mr Bell held an honest and reasonable mistaken belief that the complainant was aged 18 years or over. The jury convicted Mr Bell of the offence of supplying a controlled drug to a child but were unable to reach a verdict in relation to the sexual offences.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
KEANE J
GAGELER J
GORDON AND STEWARD JJ
EDELMAN AND GLEESON JJ
There was equally no denial to Mr Bell of the basic protections of the accusatorial criminal justice system by the refusal of the trial judge at Mr Bell's first trial to leave to the jury the question of whether any offence committed by Mr Bell under s 14 of the Misuse of Drugs Act would be excused by an honest and reasonable mistake. If the facts as to the complainant's age alleged to have been believed by Mr Bell had been true, then the same evidence in respect of the offence for which he was charged would have unequivocally established that Mr Bell would have been guilty of the offence under s 26 of supplying a controlled drug to another person. No uncharged fact or matter is involved in that conclusion.Conclusion Unlike any expressed or implied requirements for a particular element of an offence, the common law excuse of honest and reasonable mistake of fact operates to excuse the whole of the acts of an accused person from the charged offence. Mr Bell's alleged honest and reasonable belief that the complainant was 18 years or older could not have excused the entirety of his acts, which, even if the facts he believed were true, would have involved the offence of supplying a controlled drug to another person. The trial judge properly did not instruct the jury that this excuse needed to be negated by the prosecution and the Court of Criminal Appeal of the Supreme Court of Tasmania correctly dismissed the appeal. This does not mean that any honest and reasonable belief concerning a strict liability element of the offence is irrelevant if the belief is of facts that would constitute an offence. The belief could still be a matter relevant to sentencing[141]. As it turned out, however, in the context of the sexual assault charge the second jury rejected Mr Bell's claim that such a belief was honestly and reasonably held.[141]See CTM v The Queen (2008) 236 CLR 440 at 453 [27].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
KEANE J,
GAGELER J,
GORDON AND STEWARD JJ,
EDELMAN AND GLEESON JJ