C.T.M. v The Queen

[2007] HCATrans 704

[2007] HCATrans 704

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2007

B e t w e e n -

C.T.M.

Applicant

and

THE QUEEN

Respondent

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 2.06 PM

Copyright in the High Court of Australia

MR A.C. HAESLER, SC:   May it please the Court, I appear with MS J.S. MANUELL for the applicant.  (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Haesler.

MR HAESLER:   As the law in New South Wales presently stands, a citizen can be convicted and sentenced for making a genuine mistake about the age of their consenting sexual partner.  That law operates in spite of the general rule or principle of statutory construction, presuming the operation of the defence of honest and reasonable mistake and despite the simple fact that no statute in New South Wales contains one word of text which suggests the presumption does not apply.  We say that this state of affairs raises a significant question of law and of principle and obviously is of particular importance to the present appellant, who, although he received only a term of imprisonment which was suspended, is also subject to the rigours of the sex offenders registration scheme which operates in this State.

HAYNE J:   How long does that endure?

MR HAESLER:   As I understand it, for five years.

HAYNE J:   From date of conviction?

MR HAESLER:   From date of conviction.  It can be extended and it can be reduced by application to the Administrative Appeals Tribunal.  But he is a convicted sex offender despite the evidence before the Court that not only did he believe, as he said in his record of interview, that the complainant was 16 and that she had told him she was 16.

HAYNE J:   What do you say about this inconsistent verdicts point?  Is that a point you persist in?

MR HAESLER:   It is a point that has relevance if the first ground is upheld, because the direction that was given by the trial judge will have some implications to evaluating what the jury found.

HAYNE J:   If leave is granted and the first ground succeeds, what is the order that is then sought?

MR HAESLER:   If leave is granted on the first ground it would have to be an order remitting the matter.  If leave is sought on the second ground, we would be seeking for an order of acquittal from the Court because the direction, if properly given, would have impacted upon the findings of the court with regard to the second ground.

HAYNE J:   I am sorry, we may be at cross‑purposes.  If honest and reasonable mistake is a defence and should have been left to the jury in terms other than those the trial judge did?

MR HAESLER:   Then that would be a retrial.

HAYNE J:   That is retrial territory, is it not?

MR HAESLER:   Yes.  If the second ground ‑ ‑ ‑

HAYNE J:   If inconsistent verdict is made out, what is the consequence?

MR HAESLER:   That would be an acquittal point.

HAYNE J:   Why?  Would that not be retrial anyway?  You may be right, but it is not ‑ ‑ ‑

MR HAESLER:   The situation with the second point would be that the ground of appeal before the Court of Criminal Appeal was unreasonable verdict and if there was an unreasonable verdict, there should be a verdict of acquittal because if the correct direction had been given – and we say should have been given – and given the facts as they transpired and could only have been found by the jury, then the jury would have to have accepted that there was no proof that the sexual intercourse was non‑consensual, in other words, that that element of the Crown case had not been made out and that the only evidence open to the jury was that there was an honest mistake as to the age of the child.  That was the weight of the evidence.

HAYNE J:   Is not the argument about inconsistent verdicts an argument that necessarily proceeds from elevating existence of doubt about an element to a positive finding negativing the element?  Do you not go, in this argument, from the point of saying, well, they got to this verdict on this ground, therefore they found something, rather than therefore the jury was not persuaded beyond reasonable doubt of something?  Is there not that internal tension?

MR HAESLER:   There is with regard to the point of consent, but not, we say, with regard to the point of mistake of age.

HAYNE J:   Why is that?

MR HAESLER:   There was an initial charge of sexual intercourse without consent.  He was acquitted of that.  The jury may simply, as your Honour said, have had a doubt as to whether the Crown had proved the point as opposed to believing that there was consent.

HAYNE J:   Of knowing absence of consent.  Yes.

MR HAESLER:   The alternative charge then was an aggravated form of the section 66C charge.

HAYNE J:   In old terms, unlawful carnal knowledge charge.

MR HAESLER:   Unlawful carnal knowledge in a circumstance of aggravation which went to his getting the complainant ‑ ‑ ‑

HAYNE J:   Taking advantage of intoxication.

MR HAESLER:   Taking advantage of the child’s state of intoxication.

HAYNE J:   Again, there might have been a doubt about taking advantage of, might there not?

MR HAESLER:   That then left the only matter of proof, so far as criminal guilt was concerned, the fact of intercourse, which was a matter which the accused had denied from the outset and the assertion ‑ ‑ ‑

HAYNE J:   His defence was it did not happen, that if it did, I thought she was 16.

MR HAESLER:   That evidence was given independently and tendered in the Crown case as to questions about the child’s age asked by the police.  So it was independent of the defence and it was in fact in the Crown case.  So we have that evidence in the Crown case as to state of age and a finding by the jury that he was guilty of the intercourse aspect, which is accepting that part of the complainant’s case that there was intercourse but rejecting everything else she said.

HAYNE J:   Or not being persuaded beyond reasonable doubt.  Is that not the necessary step that trips up the inconsistent verdict point?  Let me be blunt about it.  At the moment, I do not see the inconsistent verdicts point.

MR HAESLER:   The point is more that the justification used by the Court of Criminal Appeal related to rather an inconsistent verdict, simply that it was a merciful verdict.  With respect, if the jury had got to the point where they found there was intercourse and given the directions there was an error, then they could not, we say, given the way the trial was run – which was from all points of view it happened, it did not happen – have arrived at that verdict in any logical sequence.  There is a limit, we say, to saying, well,

they were just being merciful, when there is no absence of logic, given the way the trial was run, that that conclusion could be reached.

It is a minor point, but it does raise, not quite the same importance as the first point but an important point that, yes, it is a catch all sometimes when courts say, “We cannot explain the jury’s verdict.  There is no logic to the way the trial was run.  They were just being merciful”.  We say there has to be some limitation on that principle when there is no logical way, given the way the trial was run, that that conclusion could have been reached by the jury, given that the test in section 6 of the Criminal Appeal Act is unreasonable.  It is not merciful.  Sometimes people can be merciful and unreasonable at the same time.  That is the point that we wish to agitate.

HAYNE J:   Yes, thank you.  Mr Frearson, we would like to hear from you about the Proudman v Dayman point, not about the other aspect that is sought to be agitated.

MR FREARSON:   Thank you, your Honour.  Perhaps I could start by saying that this is not really a suitable vehicle for the Proudman v Dayman point.  I say that because what tends to have happened in this matter is that there has been a focus upon the question of age and a mistake as to age.  My submission is that that approach is fundamentally flawed because to have a relevant Proudman v Dayman defence, assuming the defence applies – and I do not accept that for a moment – there must necessarily be an honest and reasonable belief that the person was having consensual intercourse with a girl of or above a particular age.

HAYNE J:   If Proudman v Dayman applies, who carries the burden in respect of Proudman v Dayman?The Crown has to exclude it, does it not?

MR FREARSON:   According to Teh, that is right.  I will not say any more about it.  According to Teh, that is the position and that is the position as at today.  But the mistake is to separate out these two things, the consent and the age, because when one looks at the section 77(2) defence, what it did, in effect, was to reduce the age of consent in very limited circumstances.  If you came within 77(2), the age of consent was then reduced from 16 to 14.

When that limitation was taken away, the effect of that was you then went back to section 77(1) which prescribed sexual intercourse with an objectively underage girl.  So my submission is that the whole approach is wrong and that this is not an appropriate vehicle.  I say that for this reason, that Justice Howie said, look, this is much the same as self‑defence.  Well, with respect, it is nothing like self‑defence.

For example, if you take the Jiminez situation – the driving case where the accused apparently thought he was in a condition to drive safely – it would be quite absurd to suggest that an accused could avail himself of that defence and at the same time say he was not in the mistaken situation at all, he was sitting home watching TV.  It is quite a different proposition.  My point is that the limited amelioration of the consent provision in 77(1) is taken away and you are left with is the original non‑consent provision.

HAYNE J:   To which there is no defence, that is, it is enough for the Crown to demonstrate intercourse with complainant under age, and that is it.  Is that the position?

MR FREARSON:   I do make that submission, but even if that submission is rejected, this is not the appropriate case to explore it because this accused, this applicant, says he was down with the computer or somewhere, he was not up having consensual intercourse.  He does not combine the two things necessary for the mistake.  He does not put himself in the mistaken situation which requires two aspects.  It requires the mistake as to consensual intercourse, a mistake as to age because you cannot ‑ ‑ ‑

HAYNE J:   Is that a proposition that there was no evidence to raise an issue of Proudman v Dayman?

MR FREARSON:   Yes, it is, your Honour.

HAYNE J:   What do we do with the records of interview then when the accused apparently says, “I thought she was over 16”?  Is that fit to raise the issue?

MR FREARSON:   No, it is not, because he does not get to the threshold of raising a Proudman v Dayman, he only raises half a Proudman v Dayman.  He only raises the question of age.  To make his act innocent, he has to say having consensual intercourse with an overage girl.  If you have non‑consensual intercourse, that does not make the act innocent.  That is not an innocent act.  This is the fundamental misconception with applying what I submit is a half of a Proudman v Dayman.  You cannot just think you are having sex with a girl of a certain age without some mistake as to consent.  Section 77(1) takes away consent as a defence for all these child sex offences and it does that for a particular reason.  So my main submission is that this is not the right case.

Apart from that, I do say that when one looks at the statutory scheme here, unlike England, the way the case was litigated before the CCA was that there was no suggestion that there was a mens rea as to age.  What was suggested that it was a strict liability and Proudman v Dayman applied.  In my submission, when you look at the scheme of the legislation – it is designed to protect young children – there is simply no scope for the offence because, for example, both before and after the offence you had the repeal of section 77.  You had offences that did not contain an element of age. 

You had a number of offences, like 61N, for example.  Section 61L, indecent assault, contained no age element, yet the sections talked about consent not being defensive if the person had to be under 16.  These existed before and after the repeal.  If you allowed a Proudman v Dayman defence, you could have an accused saying in relation to an 11‑year‑old child, “I thought she was 16”.  He would be successful in that type of defence.

HAYNE J:   No doubt you could have an accused saying it.

MR FREARSON:   Yes, your Honour, but some 12‑year‑old ‑ ‑ ‑

HAYNE J:   There is another step involved sometimes, Mr Frearson.

MR FREARSON:   Your Honour says that, but it can be very hard to tell.  A 12‑year‑old can present as a 16‑year‑old in certain circumstances.  The law is there to protect them, even if they dress up and look a lot older.  For example, section 66C(1), sexual intercourse with a child between 10 and 14, if we are going to allow Proudman v Dayman, you need to apply it to that offence as well.  Traditionally, the age element in relation to that type of offence has been absolute liability.

You do not get much comfort from looking at the homosexual offences because we know that 77(2) excluded male‑to‑male sexual conduct, for one reason or another.  There is probably a good reason it should not, but it did exclude it.  So you cannot say, since the legislation addresses the question – it is not like the bigamy cases where you have other defences, it is addressed to the question of the accused’s belief on reasonable grounds.

You cannot say ever that the statutory defence could have coexisted with the common law defence.  That does not make any sense at all and Justice Howie must be right about that at least.  It was not suggested in the Court of Criminal Appeal that they could coexist.  When you take away this particular facet, what are you left with?  You are left with section 77(1).  That is the submission.  But I do urge upon the Court that if this issue is to be explored, this is not the case to do it because this particular applicant was not having sexual intercourse.  He was down doing something else.

HAYNE J:   It is the case, is it not, Mr Frearson, that absent this Court taking hold of this particular vehicle, the District Courts of New South Wales will simply have to sail on applying what has been decided by the Court of Criminal Appeal here, will they not?

MR FREARSON:   That cannot be a bad thing.

HAYNE J:   Ordinarily one can see the force in what you put, Mr Frearson, yes.

MR FREARSON:   I get a reasoned judgment and on the facts of the case the defence would not have applied, in my submission, and if there is to be a vehicle that the Court finds attractive, that matter can have its day, but there is no reason this matter should have its day.  It has no merit.

HAYNE J:   Thank you, Mr Frearson.  Mr Haesler, your draft notice of appeal, we are minded that there should be a grant in respect of ground 1, but not in respect of ground 2.  In our opinion, ground 2 has insufficient prospects of success to warrant a grant in that regard.  If your grant is confined to ground 1, does it follow that the consequential relief that is sought is retrial?  You may not feel able to answer that now, but come time to file your notice of appeal in pursuance of the grant, will you please give specific attention to the form of consequential relief that you say is appropriate.  As I say, at the moment it would seem to me likely that it is a retrial matter.

MR HAESLER:   A retrial point.  I am with your Honour but I thank your Honour for the indulgence of the time.

HAYNE J:   But look at it.  Yes, Mr Haesler.

MR FREARSON:   In terms of the time frame, special leave having been granted, this matter does open up quite a few ancillary areas and it may be a reasonably lengthy appeal.

HAYNE J:   How long would you estimate, Mr Frearson, to run the point properly because we would be, of course, anxious for as much assistance as we could properly have.

MR FREARSON:   I think the case would take a day.

HAYNE J:   I am not surprised it would take a full day.  Are counsel agreed that we could properly and sufficiently deal with it within the space of a full day?

MR FREARSON:   Yes, your Honour.

MR HAESLER:   Yes, your Honour.

HAYNE J:   It will be noted as a day’s case.

MR HAESLER:   There is a matter where I am aware, from the Chief Judge of the District Court, that there are quite a number of trials banked up on the waiting list.

HAYNE J:   I understand that.

MR HAESLER:   That may have some weight or no weight whatsoever with the Court.

HAYNE J:   There are not many courts in this country of which it cannot be said that there are matters banked up and, alas, this Court is not one where it can be said matters are not banked up.

MR HAESLER:   I just make the point that has been conveyed to me, your Honour.

HAYNE J:   Yes.  There will be a grant limited in the fashion described to the matters raised in ground 1.

MR HAESLER:   May it please the Court.

HAYNE J:   The Court will adjourn to reconstitute.

AT 2.27 PM THE MATTER WAS CONCLUDED