CTM v The Queen - [2008] HCA 25

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
CTM APPELLANT
AND
THE QUEEN RESPONDENT
CTM v The Queen [2008] HCA 25
11 June 2008
S591/2007
ORDER
Appeal dismissed.

On appeal from the Supreme Court of New South Wales
Representation
T A Game SC and A C Haesler SC with J S Manuell for the appellant (instructed by Legal Aid Commission of NSW)
D C Frearson SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (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
CTM v The Queen
Criminal law – Sexual intercourse with child aged between 14 and 16 years –Whether common law ground of exculpation of honest and reasonable mistake of fact applies to offence under s 66C(3) of the Crimes Act 1900 (NSW) – Whether accused entitled to place reliance on honest and reasonable mistake of fact where conduct the subject of charge is denied.
Criminal law – Onus and standard of proof – Whether accused obliged to establish honest and reasonable mistake of fact – Whether accused obliged to "enliven" issue of honest and reasonable mistake of fact – Whether accused obliged to adduce evidence in support of contention of honest and reasonable mistake of fact – Whether there was sufficient evidential foundation for contention of honest and reasonable mistake of fact – Whether issue of honest and reasonable mistake of fact sufficiently raised at trial – Whether trial judge obliged to direct jury on issue of honest and reasonable mistake of fact – Adequacy of trial judge's directions to jury.
Criminal law – Appeal – Application of "proviso" – Whether there occurred substantial miscarriage of justice – Whether appellate court able to conclude that no substantial miscarriage of justice occurred where misdirection on onus and standard of proof is demonstrated.
Words and phrases – "defence", "honest and reasonable mistake of fact", "substantial miscarriage of justice".
Crimes Act 1900 (NSW), ss 66C(3), 66E(1A), 77.
Criminal Appeal Act 1912 (NSW), s 6(1).

GLEESON CJ, GUMMOW, CRENNAN AND KIEFEL JJ. In 1897, Sir Samuel Griffith, then Chief Justice of Queensland, prepared for the Government of Queensland a Draft Code of Criminal Law. In a letter to the Attorney-General, enclosing this monumental work, Sir Samuel wrote[1]:
"Criminal Responsibility. – This most important and difficult branch of the law is dealt with in Chapter V. I have appended to several of the sections Notes to which I invite special attention. No part of the Draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction."
[1]Griffith, Draft of a Code of Criminal Law, (1897) at x.
Chapter V of the Draft Code dealt, among other things, with the mental element necessary to attract criminal responsibility. It included the following provision:
"26. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
In a marginal note against that provision, Sir Samuel wrote: "Common Law"[2]. The provision was enacted as s 24 of the Criminal Code (Q). In Thomas v The King[3], Dixon J said that the language of the Code, which was also taken up in the other Code States of Tasmania and Western Australia, in this respect reflected the common law with complete accuracy[4]. Clause 26 appears to have been taken substantially from Stephen's Digest of the Criminal Law[5], and was in accordance with what Cave J said in R v Tolson[6] (a bigamy case in which the accused, at the time of the second marriage, believed on reasonable grounds that her husband was dead):
"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence."
[2]Griffith, Draft of a Code of Criminal Law, (1897) at 13.
[3](1937) 59 CLR 279 at 305-306; [1937] HCA 83.
[4]For later acceptance of the common law principle in this Court, see, for example, Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28; He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43; Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24.
[5]Stephen's Digest of the Criminal Law, 3rd ed (1883) at 26.
[6](1889) 23 QBD 168 at 181.
In the same case, Cave J explained the reason for the principle[7]:
"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."
[7](1889) 23 QBD 168 at 182.
What is involved is a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law. That law is, to a large extent, although in most Australian jurisdictions not completely, governed by statute. The Crimes Act 1900 (NSW) ("the Crimes Act") is not a code, but it contains provisions dealing with most serious offences against the person. The legal effect of some of those provisions, of which those relating to homicide are a well-known example, can be understood only against a background of common law principle[8]. Where the problem is one of interpretation of what Parliament has enacted, general principles of criminal responsibility inform such interpretation, but ultimately it is the language of the statute that is controlling. A principle as to criminal responsibility, such as that described above, as is acknowledged, may be excluded by a sufficiently plain manifestation of legislative intention.
[8]See, for example, R v Lavender (2005) 222 CLR 67; [2005] HCA 37.
Cave J's description of a mistaken belief of the kind he was discussing as a "defence", and Sir Samuel Griffith's Draft Code, preceded Woolmington v Director of Public Prosecutions[9] by almost 40 years. Questions of onus and standard of proof now need to be considered in the light of later developments in the law. References to arguments raised on behalf of the accused at a criminal trial as a defence, or a ground of exculpation, may be harmless enough if they do not pre-empt questions of onus of proof. People understandably feel the need to call them something, and the adversarial setting of a trial leads judges and practitioners sometimes to refer to any point relied upon by an accused as a defence. So, for example, in the plurality judgment in this Court in Jiminez v The Queen[10], honest and reasonable mistake was referred to as an "excuse" and a "defence". By reference to a leading decision of this Court on the subject, it is sometimes called "the Proudman v Dayman defence". Such descriptions have their dangers, but the shorthand may be convenient provided it is understood for what it is.
[9][1935] AC 462.
[10](1992) 173 CLR 572 at 581-582.
Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse[11]. Moreover, the moral sense invoked by Cave J, at least in Australian law, does not extend to cover unreasonable mistakes[12]. The concept of mistake itself is protean[13]. The state of mind that, in a given set of circumstances, will qualify as a mistaken belief in a fact or state of affairs may be a matter of difficulty. An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern. Even so, the point made by Cave J at the end of the second passage quoted above continues to be of fundamental importance to the function of courts in seeking to find and give effect to the meaning of criminal legislation. While the strength of the consideration may vary according to the subject matter of the legislation[14], when an offence created by Parliament carries serious penal consequences, the courts look to Parliament to spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake. This appears to us to be closely related to the principle of statutory interpretation which was discussed in Plaintiff S157/2002 v The Commonwealth[15], Al-Kateb v Godwin[16], and Electrolux Home Products Pty Ltd v Australian Workers' Union[17], and which was applied by the whole Court in the several judgments in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[18]. There is no present need to expand upon that discussion.
[11]See, for example, Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30.
[12]Thomas v The King (1937) 59 CLR 279; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523.
[13]State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 724.
[14]As explained by Dixon J in Proudman v Dayman (1941) 67 CLR 536 at 540.
[15](2003) 211 CLR 476 at 492 [30]; [2003] HCA 2.
[16](2004) 219 CLR 562 at 577 [19]; [2004] HCA 37.
[17](2004) 221 CLR 309 at 328-329 [19]-[21]; [2004] HCA 40.
[18] (2002) 213 CLR 543 at 553 [11], 562-563 [43], 576 [88], 592-593 [134]; [2002] HCA 49.
Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment"[19]. As explained in He Kaw Teh v The Queen[20], the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.
[19]Proudman v Dayman (1941) 67 CLR 536 at 541.
[20](1985) 157 CLR 523 at 534-535.
Sir Samuel Griffith's qualification, that the operation of the rule stated in the first paragraph of cl 26 (later s 24) may be excluded by the express or implied provisions of the law relating to the subject, was exemplified by the provisions of his Draft Code concerning the topic with which the present appeal is concerned, a topic which used to be described as carnal knowledge by a male of a female under the age of consent.
There is a long history, in Australia, of criminal statutes which punished not only rape, that is, unlawful carnal knowledge of a female of any age without her consent, but also any unlawful carnal knowledge of a female below a certain age. (We are not presently concerned with sexual abuse of infants of tender years, or others for whom the concept of consent may have no practical meaning.) There is an obvious question which arises in the case of any such law: when Parliament specifies an age below which consent is no answer to a charge, what is the position of an accused who honestly and reasonably believed that the female concerned was above that age?
In the Draft Code, there were two provisions that illustrate how the problem may be approached. They also exemplify the qualification in the second paragraph of cl 26. Rather than rely on the general operation of the rule in the first paragraph of cl 26, a cognate, but different, provision, more carefully tailored to the particular subject matter, was included. Chapter XXII in Pt IV dealt with "Offences against Morality". Clauses 219, 221 and 222 dealt with certain conduct in relation to girls under 12 and 10, and between the ages of 12 and 14, respectively. Clause 219 provided, relevantly:
"Any person who has unlawful carnal knowledge of a girl under the age of twelve years is guilty of a crime, and is liable to imprisonment with hard labour for life, with or without whipping."
The clause said nothing about any defence. It did, however, provide a special penalty regime for offenders who were themselves under the age of 16. The court was empowered, instead of sentencing these offenders to any term of imprisonment, and with or without ordering any whipping, to order detention for a period not exceeding three years in an industrial or reformatory school.
Clause 221 provided, relevantly:
"A person who attempts to have unlawful carnal knowledge of a girl under the age of ten years is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years, with or without whipping, which may be inflicted once, twice or thrice."
Clause 222 provided, relevantly:
"Any person who –
(1)Has or attempts to have unlawful carnal knowledge of a girl under the age of fourteen years and of or above the age of twelve years …
is guilty of a misdemeanour, and is liable to imprisonment with hard labour for two years.
It is a defence to a charge of either of [such] offences ... to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of fourteen years."
Those provisions reflected then current United Kingdom legislation. The following comments may be made. First, the penalty provisions of cl 219 referred to the fact that, in the case of consensual sexual activity with under-age females, the male party may be of approximately the same age as the female. Secondly, the defence, based on honest and reasonable mistake as to age, provided by cl 222, was absent from cll 219 and 221: a clear indication of intention that the general exculpatory provisions of cl 26 were not to apply to cl 219 or cl 221, and that there was to be a special regime for offences of this kind. Thirdly, the terms of cl 222 put on the accused the onus of establishing the defence provided. The term "defence" was used with technical accuracy.
We have referred to Sir Samuel Griffith's Draft Code as a convenient reference point to illustrate certain considerations that might reasonably be expected to be present in the mind of anyone framing legislation on this topic. Legislation making it an offence for a male to have sexual relations with a female under a certain age commonly has differentiated between females of various ages, ranging through degrees, from infants of tender years, to people who might be mature adolescents. (Concepts of maturity themselves vary over time. There was a time when the age at which a female could marry was 12[21]; hence the need to distinguish "unlawful" carnal knowledge.) We leave to one side, for the moment, the way in which such laws differentiated between heterosexual and homosexual activity. In dealing with conduct involving sexual relations with a female at the higher end of whatever range is chosen, such legislation typically addressed the possibility of an honest and reasonable mistake as to age. This is a problem inherent in the nature of the issue with which such legislation is concerned. When Parliament stipulates that, regardless of any question of consent, it is a serious crime for a male to have sexual relations with a female under a certain age, 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. When they occur, how is the law to deal with them? A similar (but not identical) answer was given in almost all examples of legislation on this topic in Australian jurisdictions, and in countries of a similar legal background.
[21]Joske, Matrimonial Causes and Marriage: Law and Practice, 5th ed (1969) at 149.
A related matter is how the law is to deal with the not uncommon case of the offender who is approximately the same age as the victim. The present appeal provides an example. At the relevant time, the appellant was 17, and the complainant was 15. The term "sexual predator" may be appropriate to describe some people who engage in sexual activity with consenting 15-year old females, but it is hardly of universal application. The present appellant was himself, in the eyes of the law, a child, and this was potentially relevant both to the procedures that governed his prosecution and to questions of penalty. The facts of the present case illustrate a kind of adolescent behaviour that lies within the spectrum of conduct which the New South Wales Parliament must have had in contemplation when it enacted the legislative changes that give rise to the primary issue in this appeal.
It is unnecessary to examine the various ways in which Parliaments in comparable jurisdictions have responded to the issues identified above. The history of United Kingdom legislation on the topic was described, without admiration, by Lord Bingham of Cornhill in R v K[22]. Section 5 of the Criminal Law Amendment Act 1885 (UK) made it an offence to carnally know a girl over 13 years but under 16 years, subject to a proviso that it was a defence if the accused had reasonable cause to believe that the girl was over 16 years. In 1922, the legislation was amended to provide that reasonable cause to believe that a girl was over 16 years should not be a defence. This, however, was subject to the further proviso that, in the case of a man of 23 years or under, reasonable cause to believe that the girl was over 16 years was a valid defence on the first occasion on which he was charged with such an offence.
[22][2002] 1 AC 462 at 467-469 [4]-[10].
In most common law jurisdictions, homosexual offences involving males were the subject of a different legislative regime. However, in setting the historical context for a consideration of the New South Wales legislation which governs the present appeal, it is important to note a New South Wales decision of which the framers of the legislation must have been aware. In Chard v Wallis[23], the accused was charged with a contravention of s 78Q(2) of the Crimes Act. That was one of a series of homosexual offences, the relevant age of consent being 18 years. Although the Crimes Act said nothing on the matter, Roden J, applying the general principle earlier mentioned, held that a mistaken but reasonable belief that the male in question was above the age of 18 years was a ground of exculpation. In the Court of Criminal Appeal in the present case, Howie J indicated some doubt about the correctness of that decision. Nevertheless it has stood since 1988, and there was nothing said in Parliament when the current legislation was enacted to acknowledge a legislative intention to reverse it. In its application to homosexual acts, that decision had a consequence that was in some respects similar to, and in other respects different from, the statutory provision for a defence in the case of a charge of carnal knowledge of a female.
[23](1988) 12 NSWLR 453.
The New South Wales legislation before 2003

This appeal is concerned with the effect of certain amendments, in 2003, to a number of provisions of the Crimes Act dealing with sexual offences. Those provisions had been the subject of much legislative attention, and alteration, over the years. For purposes directly relevant to the kind of offence of which the appellant was convicted, it is sufficient to note that the Crimes Act, as it stood in 2002, as well as making it an offence to have sexual intercourse with another person without that other person's consent knowing of such absence of consent (s 61I), provided for various offences of carnal knowledge which could be committed in different circumstances. Sexual intercourse with a person under the age of 10 years was one offence (s 66A). Sexual intercourse with a person between the ages of 10 and 16 years was a different offence (s 66C). Section 77 provided:
"Consent no defence in certain cases
(1)Except as provided by subsection (2), the consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E(1A), (2) or (2A), 61M(2), 61N(1) or 61O(1) or (2), 66A, 66B, 66C, 66D, 66EA, 66F, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76.
(2)It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E(1A), (2) or (2A), 61N(1), 61O(1) or (2), 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that:
(a)the child to whom the charge relates was of or above the age of 14 years at the time the offence is alleged to have been committed,
(b)the child to whom the charge relates consented to the commission of the offence, and
(c)the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years."
In the result, sexual intercourse with a child under the age of 10 years was an offence for which the necessary mental element, or intention, was uncomplicated. It was necessary for the prosecution to prove an intentional act of sexual intercourse with a certain person, and to prove that the person was under the age of 10 years. Those were the elements of the offence, proof of which established guilt. For an offence against s 66C (sexual intercourse with a person between the ages of 10 and 16), considered in the light of s 77(2), the position was more complicated. It depended upon whether the conduct was homosexual or heterosexual, whether the alleged victim was 14 years of age or older, and whether the alleged victim consented. If the necessary conditions in those respects were fulfilled, then honest and reasonable mistake as to age, if made to appear, was a defence.
Sub-section (2) of s 77, although in a broad sense it dealt with the topic of honest and reasonable mistake, was an elaborate provision, reflecting a number of legislative concerns and, perhaps, compromises. It did not apply where both parties to the conduct in question were male. It placed the onus on the accused relying on the defence it provided. It dealt, not only with both objective and subjective matters as to age (actual age and reasonable and honest belief about age), but also with the matter of consent. In the latter respect, as the opening words of sub-s (1) indicated, it qualified sub-s (1). Although absence of consent was not an element of the offence created by s 66C, the presence of consent was an aspect of the defence provided by s 77(2), or, to put it another way, it was a condition of the (limited) availability of a defence of honest and reasonable mistake as to age.
The 2003 amendments
The Crimes Amendment (Sexual Offences) Act 2003 (NSW) made substantial amendments to the sexual offences provisions of the Crimes Act. Of direct relevance to the present case are the amendments made to ss 66C and 77. Of indirect, but substantial, relevance are other amendments designed to give effect to one of the purposes stated in the long title to the Act, "to provide for the equal treatment of sexual offences against males and females". In that respect, it established what the Attorney-General described as "an equal age of consent". The Attorney-General said[24]:
"Equalising the age of consent to 16 is just one of the many objectives of the bill …
The safeguards now include the removal of the express defence [to a charge] of carnal knowledge based on reasonable mistake of age".
[24]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 21 May 2003 at 898-899.
In an earlier speech in Parliament on the same Bill, the Attorney-General said[25]:
"The bill eliminates the defence currently available to consensual sexual activity with young people aged between 14 and 16 years, formerly known as carnal knowledge.
The bill removes the express statutory defence presently provided in section 77(2)(c) of the Crimes Act that the person charged had reasonable cause to believe, and did in fact believe, that the child was of or above the age of 16 years. As a consequence, it will no longer be possible to argue that a uniform age of consent of 16 years creates an effective age of consent of 14 years."
[25]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 376.
What the Attorney-General did not say was that the "express defence" in s 77(2) was a statutory narrowing of a wider potential ground of exculpation that, according to established principle, would at least arguably have been available otherwise and that, in 1988, had been held to be available in the case of certain homosexual offences.
The 2003 legislation amended s 66C to make it, as it were, gender neutral, but otherwise retained, in terms of offences, and penalties, the distinction between offences against children under 10, children between 10 and 14, and children between 14 and 16. It also amended s 77 by deleting s 77(2), and the opening words of s 77(1).
Section 66C, following amendment, and so far as is presently relevant, dealt, in sub-s (1), with sexual intercourse with a person aged between 10 and 14, in sub-s (2) with sexual intercourse with a person aged between 10 and 14 in (defined) circumstances of aggravation and, in sub-s (3), with sexual intercourse with a person aged between 14 and 16. We are presently concerned directly with s 66C(3), which provided that any 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.
The question arises: what does the law now provide if a person charged with an offence against s 66C(3) honestly believed, on reasonable grounds, that the complainant was aged 16 years or over? It has already been noted with reference to what was said by Dixon J in Proudman v Dayman[26] that the potential ground of exculpation requires an honest and reasonable belief in a state of affairs which, had it existed, would be such that the accused's conduct was innocent, in the sense earlier explained. It would therefore not assist an accused to believe that a child was aged between 10 and 14, or between 14 and 16; for if the child were of that age, it would merely take the case out of one prohibition into another. The act of consensual sexual intercourse is not of itself an offence. The offence consists in a particular accompanying state of affairs or circumstance (relevantly, age). An honest mistake about the extent to which a child is under-age would merely be a mistake about the kind of offence that is being committed. That would be legally irrelevant to guilt, although it could possibly have some consequence for sentencing purposes. Furthermore, the belief, to be exculpatory, must be reasonable. The greater the gap between the child's true age and the age of 16 years, the less likely it may be, in practice, that such a belief was reasonable.
[26](1941) 67 CLR 536 at 541.
The Attorney-General's speech in Parliament reveals a concern about an argument that, in the case of homosexual intercourse, to reduce the "age of consent" from 18 years to 16 years was, in practice, to reduce it to 14 years. The problem, however, was more complex than that.
In the Court of Criminal Appeal, Howie J said:
"It has to be said at the outset that I find it remarkable that a section [s 77(2)] that had existed from time immemorial should be repealed without a clear and uncompromising statement being made, either by the draftsperson or by the Minister responsible for the repeal, as to its intended effect. On the face of it a defence to a number of serious criminal offences, carrying substantial sentences of imprisonment as the maximum penalties, was being repealed and yet nothing is expressly stated to indicate any clear understanding by Parliament of the consequence of that repeal. And this in an area of the criminal law which is of continuing concern to the community and, hence, the Parliament. There is probably no part of the Crimes Act that has been subject to more change in recent years than the provisions dealing with sexual assaults against children, much of those changes intended to increase penalties for the offences and to make it easier for children to give evidence and, thereby, easier to secure convictions."
Those sentiments are understandable, although it needs to be remembered that a court, knowing nothing of the political considerations at work, may not be well placed to draw inferences from silence, even on a topic that seems to demand attention[27]. In politics, compromise is sometimes achieved by reticence. This may create a problem for courts that have to deal with the outcome of the compromise, but that is the way of the democratic process. In the equalisation undertaken in 2003, the New South Wales Parliament regarded the "express defence" in s 77(2) as no longer appropriate. It was a defence that, in its terms, differentiated between homosexual and heterosexual activity, so it at least had to be changed if there were to be the desired equalisation. It could not have been left as it was. Yet the problem to which that provision was addressed did not disappear; and the long-standing and well-understood principle which provided an alternative response to the same problem remained potentially applicable in the absence of "the clearest and most indisputable evidence [concerning] the meaning of the Act."[28]
[27] See Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; [1995] HCA 24; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169; [1996] HCA 40.
[28]R v Tolson (1889) 23 QBD 168 at 182.
One of the reasons why, for more than a century, in most common law jurisdictions, including the Australian colonies and, later, States, the problem of mistake in connection with age-related sexual offences was dealt with by a separate and more specific legislative provision was that Parliament was thereby enabled to deal with issues such as onus of proof, consent, and mistake about age in a manner tailored to the particular kind of offence in question. One practical matter, discussed by Howie J in the Court of Criminal Appeal, is exemplified by this case. As often happens, the appellant was charged with sexual intercourse with the complainant, knowing she was not consenting. He was acquitted of that charge. The offence of which he was convicted (sexual intercourse with a person over 14 and under 16, contrary to s 66C(3)) was left to the jury as an alternative verdict. In such a case, where the complainant alleges she was not consenting, the prosecution sets out in support of its primary charge (in the language of former times, rape) to establish absence of consent. For the alternative charge (in the language of former times, carnal knowledge), it did not need to prove lack of consent. By the time the jury came to consider the s 66C issue, the matter of consent had been dealt with. Absence of consent was not an element of the s 66C(3) offence, and s 77(1) declared that presence of consent was no answer. The supposed mistake was about age, not consent. The defence previously provided by s 77(2) made the existence of consent, like the fact of an age in excess of 14 years, a condition of the availability of a defence based on a mistake as to age. The potential Proudman v Dayman ground of exculpation was not so conditioned.
When, in the context of equalisation of laws relating to heterosexual and homosexual activity, in 2003, the New South Wales Parliament repealed s 77(2), and thereby abandoned the special defence that previously applied to heterosexual acts with under-age persons, it necessarily raised the problem of the possible application, to the now equalised, age-related, offences, of the Proudman v Dayman ground of exculpation, that is to say, honest and reasonable mistake of fact. Such mistakes were still going to happen. The question that Parliament left for the courts to decide was whether they were to be treated as irrelevant, or whether they would constitute, in accordance with the long-established principle referred to at the commencement of these reasons, a potential answer to a charge.
Howie J said:
"The immediate reaction to the Crown submission is surprise, if not shock, at the suggestion that the Crimes Act can have what are in effect absolute liability offences carrying substantial gaol penalties. Of course that was always so with a child under 14 but there can be no denying that as the child becomes older the likelihood of an innocent mistake becomes more likely. I also accept that it is notoriously difficult to tell the age of [a] person with such accuracy as an absolute offence would require, and it is not uncommon for children approaching the age of 16 to disguise or lie about their age in order to be treated more favourably as an adult."
He could have added that sexual activity with persons under 16 may be engaged in, not by adult sexual predators, but by other persons who themselves are adolescents. (This is not to overlook the possibility that some adolescents are capable of predatory behaviour.) Nevertheless, Howie J, and Hodgson JA and Price J who agreed with him, felt compelled to conclude that there was a legislative intent that, following the repeal of s 77(2), honest and reasonable mistake would be irrelevant to a charge of an offence against s 66C(3). We accept that, in the face of the legislative silence earlier referred to by Howie J, there are powerful arguments in support of that conclusion. There is, however, what appears to us to be a compelling argument to the contrary. It is that foreshadowed by Cave J in R v Tolson, and it concerns the relationship between the courts and Parliament.
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. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years. The outcome of the present appeal turns upon what is involved in the concept of evidential burden in the context of the particular offence, and the particular ground of exculpation.
The present case
The facts, and the course of proceedings, appear from the reasons of Hayne J. We agree with Hayne J that the circumstance that, in answer to a police question in the course of an interview, the appellant said that the complainant was 16 and that she had told him that was her age did not, in the light of the course of evidence, and absence of evidence, at trial, discharge the evidentiary burden involved in reliance on honest and reasonable mistake of fact as a ground of exculpation. This was a point that was left unresolved by the Court of Criminal Appeal. However, it arises once it is decided that what Howie J called "the common law defence" is left open by the statute.
In Jiminez v The Queen[29], the plurality reasons for judgment examined in some detail the circumstantial evidence in the case which suggested that the driver of a motor car honestly believed on reasonable grounds that it was safe for him to drive. The material referred to was such as to enable a tribunal of fact not only to decide whether such a belief might have been honestly held, but also to evaluate its reasonableness. The reasons did not merely rely on the driver's claim that he had no warning of the onset of sleep. They tested that claim against the facts and circumstances proved in evidence, and the inferences available from the evidence, and concluded that, in the light of the whole of the evidence, there was a serious issue to be decided.
[29](1992) 173 CLR 572 at 583-584.
Here, the fact that the defence case at trial (unsupported by sworn evidence of the appellant) was that no intercourse occurred did not of itself make the point unavailable, especially where, according to the defence case, the only reason no intercourse occurred was that the appellant's plans in that regard were interrupted. There was, however, nothing to support the honesty and reasonableness of a suggested belief in the truth of his out-of-court assertion that the complainant had told him what would have been a lie about her age. The complainant (who was in fact 15) gave evidence that she was in year 9 at school. The appellant, aged 17, was in year 11. In his record of interview the appellant, when asked by the police how old the complainant was, said "16". When asked how he knew that, he said that the complainant had told him. He also said the complainant was, he thought, in year 10. It was not suggested to the complainant in cross-examination that she had lied to the appellant about her age or, for that matter, that she had discussed it with him.
Honesty and reasonableness are essential features of the mistaken belief relied upon as a ground of exculpation. The belief of the appellant was a matter peculiarly within his own knowledge, but he gave no sworn testimony about it. The reasonableness of his belief was based on an out-of-court assertion as to what the complainant allegedly said, but this was not put to her in cross-examination. A tentative out-of-court suggestion by the appellant as to the complainant's class at school, which would have been consistent with his case, was shown by the evidence to be wrong. The evidential burden was not satisfied.
Conclusion
The appeal should be dismissed.
KIRBY J. This appeal, from orders of the Court of Criminal Appeal of New South Wales, arises following the conviction of the appellant, CTM, of an offence against s 66C(3) of the Crimes Act 1900 (NSW) ("the Act").
The majority of this Court, whilst upholding the appellant's complaints of legal error, affirm his conviction for a suggested absence of miscarriage of justice. In my view, if a trial judge misdirects a jury on the legal ingredients of an offence, as well as on the onus and standard of proof to be applied, that constitutes a miscarriage of justice[30]. Certainly it does so in this case. Conviction of a sexual crime is a very serious outcome for the appellant. He is entitled to a retrial.
[30]See Conway v The Queen (2002) 209 CLR 203 at 241 [103]; [2002] HCA 2; Darkan v The Queen (2006) 227 CLR 373 at 413-415 [139]-[142]; [2006] HCA 34.
The decisional history

Trial of the accused: The appellant was tried before Garling DCJ and a jury in the District Court of New South Wales upon an indictment containing two counts. The counts alleged offences against s 61J of the Act (sexual intercourse without consent in circumstances of aggravation) and, in the alternative, s 66C(4) (sexual intercourse with a person aged between 14 and 16 years in circumstances of aggravation). The jury found the appellant not guilty of those offences and upon them he was discharged.
The jury went on to find the appellant guilty of a statutory alternative to the s 66C(4) offence, being an offence against s 66C(3) of the Act[31]. This involved a non-aggravated form of the offence of having sexual intercourse with a person between the ages of 14 and 16. The complainant was a female friend of the appellant. She was 15 years of age at the time of the alleged offence. The appellant was then 17 years of age.
[31]See the Act, s 66E(1A).
Inherent in the jury's verdict on the s 66C(3) offence was a conclusion that the appellant and the complainant had engaged in consensual sexual intercourse. The appellant's conduct was not unlawful for want of consent, or aggravated because the complainant had been under the influence of alcohol[32], as had been alleged in respect of the offences charged in the indictment. It was unlawful because the complainant was below the age at which the law says a person may consent to sexual intercourse.
[32]The Act, s 66C(5)(g).
In the Court of Criminal Appeal, the appellant argued that the jury's verdict was unreasonable. That Court rejected this argument[33]. It has not been maintained in this Court.
[33]CTM v The Queen (2007) 171 A Crim R 371 at 373 [1], 381-385 [48]-[64], 405 [157].
Sentencing the prisoner: In sentencing the appellant, the trial judge found no difficulty in reconciling the verdicts returned by the jury. The trial judge described the facts as he took them to be established:
"The facts which the jury obviously accepted are that on 24 October 2004 [the complainant], a person of 15 years of age, who knew the prisoner quite well, had rung him and contacted him and had gone to the premises where he and some other boys lived. She was considerably affected by alcohol. During the course of that evening he and [the complainant] had sexual intercourse, and she was under the age of 16, namely 15, and they have obviously accepted that he knew [that fact], and they are the brief facts upon which I sentence him. He knew her, he had been friendly with her over a significant period of time. He was a young lad … 17 years of age at the time, [and] the difference in their age is minimal, but the fact is it is an offence and he has been found guilty of it.
… [H]e denied having sexual intercourse, however, the jury was satisfied beyond reasonable doubt to the contrary. There is little else I can say about it. It is one of these very difficult sentences because what you are doing, in effect, is sentencing a person where two people of a similar age agreed obviously to have sexual intercourse, but she is of such an age that Parliament has deemed that it is an offence."
In the result, the trial judge sentenced the appellant to a term of eighteen months imprisonment with a non-parole period of nine months. He suspended the custodial sentence on the basis that "special circumstances" warranted that course. In the Court of Criminal Appeal, it was accepted by the prosecution that the sentence imposed had failed to take into account the Children (Criminal Proceedings) Act 1987 (NSW). Provisions of that Act applied to the appellant because, for its purposes, he was himself a child[34]. Thus, although the Court of Criminal Appeal dismissed the appellant's appeal against conviction, it upheld his application for leave to appeal against sentence. It quashed the sentence and ordered that the matter be remitted to the District Court for the resentencing of the appellant according to law[35].
[34](2007) 171 A Crim R 371 at 405 [153].
[35](2007) 171 A Crim R 371 at 405 [156].
Court of Criminal Appeal: The principal focus of the appellant's conviction appeal in the Court of Criminal Appeal was whether a "common law defence" of honest and reasonable mistake of fact applied to a charge based on s 66C(3) of the Act, such as would exculpate the appellant if he had held a belief, at the time of the sexual intercourse, that the complainant was over the age of 16 years.
By reference to decisions of this Court[36] and other courts[37], to English authority[38], and to the legislative history of the relevant provisions of the Act[39] (with particular reference to the repeal of s 77(2) of the Act and to extrinsic material explaining the purpose of that repeal[40]), the Court of Criminal Appeal unanimously concluded that the "common law defence" was not "activated" in respect of s 66C of the Act.
[36]eg Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28; He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43; Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14.
[37]eg Chard v Wallis (1988) 12 NSWLR 453.
[38]eg R v Prince (1875) LR 2 CCR 154; Maughan (1934) 24 Cr App R 130; B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428; R v K [2002] 1 AC 462.
[39]See (2007) 171 A Crim R 371 at 391-397 [91]-[113].
[40]See (2007) 171 A Crim R 371 at 397 [114]-[116]; see also at 373-374 [2]-[7] per Hodgson JA.
There was thus no need for the Court of Criminal Appeal to "go on to determine whether there was evidence to support the common law defence in the present case"[41]. Whilst the trial judge had given certain directions on the assumption that the "defence" applied, he had not been obliged by law to do so.
[41](2007) 171 A Crim R 371 at 405 [151].
Despite this, the Court of Criminal Appeal noted an alternative submission advanced for the prosecution to the effect that, even if the "defence" had applied to s 66C(3) of the Act, it amounted, in the present case, to a "contingent defence", and could not be maintained. The prosecution argued that, because the appellant's case at trial had been that he did not have intercourse with the complainant at all, he could not also assert the inconsistent proposition that "if he did, he was mistaken as to her age and the fact that she was not consenting"[42]. The Court of Criminal Appeal rejected this argument as incompatible with the decision of this Court in Pemble v The Queen[43].
[42](2007) 171 A Crim R 371 at 404 [149].
[43](1971) 124 CLR 107; [1971] HCA 20 cited (2007) 171 A Crim R 371 at 404-405 [149].
Appeal and contentions in this Court: In this Court, the appellant argues that the Court of Criminal Appeal erred in finding that the "defence" of "honest and reasonable mistake" as to the age of the complainant was not available in respect of s 66(3) of the Act.
By a notice of contention, the respondent has submitted that the Court of Criminal Appeal erred in holding that Pemble has the effect that the "common law defence of honest and reasonable mistake applies even though the defence relied upon was not that the appellant, at the time of having intercourse, mistakenly believed that the complainant was over 16, but a denial that intercourse occurred at all". The respondent reiterated its argument that any defence of honest and reasonable mistake as to age "does not apply in a case such as the present where the accused denies committing the act to which the mistaken belief relates".
The respondent further contends that the Court of Criminal Appeal erred in holding that the onus of disproving honest and reasonable mistake, where applicable, lies on the prosecution. The respondent argues that "[i]f this Court were to decide that the common law defence was available in this case … the trial judge's direction placing the onus of establishing the defence on the accused on the balance of probabilities was correct".
The issues
Four issues therefore arise for decision by this Court:
(1)The honest and reasonable mistake issue: Does s 66C(3) of the Act create an offence of "absolute liability", such that the suggestion of "honest and reasonable mistake of fact" on the part of the accused as to the age of the complainant is legally immaterial?
(2)The trial judge's direction issue: If the first issue is answered in favour of the appellant, was the trial judge correct to direct the jury that an honest and reasonable mistake of fact as to the age of the complainant was a "defence", the onus of establishing which, on the balance of probabilities, was on the accused?
(3)The inconsistent propositions issue: If both of the foregoing issues are decided in favour of the appellant, was he incapable in law of placing reliance on honest and reasonable mistake as to the age of the complainant because he conducted his case at trial on the basis of a denial that sexual intercourse had taken place at all? and
(4)The Pemble issue and the proviso: If all three of the foregoing issues are decided in favour of the appellant, should his appeal to this Court nonetheless be rejected on the basis that: (a) he did not at trial raise a live issue about his belief concerning the complainant's age; (b) the decision of this Court in Pemble[44] did not oblige the trial judge to direct the jury upon that issue; and (c) as a result, no miscarriage of justice occurred such as to warrant disturbing the appellant's conviction, despite a demonstrated error of law in the trial[45]?
[44]See eg (1971) 124 CLR 107 at 118.
[45]See Criminal Appeal Act 1912 (NSW), s 6(1).
Honest and reasonable mistake of fact and the offence
A finely balanced question: I can abbreviate what I would otherwise have written on this issue because I agree with much of what appears in the reasons of Gleeson CJ, Gummow, Crennan and Kiefel JJ ("the joint reasons"), and in the reasons of Hayne J.
At the outset, I acknowledge, alike with the joint reasons, that in the face of the silence of s 66C(3) of the Act with respect to honest and reasonable mistake, and given the legislative history, "there are powerful arguments in support of [the] conclusion" stated by Howie J for the Court of Criminal Appeal[46].
[46]Joint reasons at [34].
Years ago, sitting in that same Court in the case of Jiminez, I applied what I took to be the holdings of this Court, and concluded that the statutory offence of culpable driving, by its language and purpose, involved only objective considerations, viz "the actual behaviour of the driver", and did "not require any given state of mind as an essential element of the offence"[47].
[47](1991) 53 A Crim R 56 at 63 citing R v Coventry (1938) 59 CLR 633 at 637, 638; [1938] HCA 31; McBride v The Queen (1966) 115 CLR 44 at 50, 54; [1966] HCA 22.
In a unanimous decision, this Court reversed the conclusion that I (along with Lee CJ at CL) had reached[48]. I accept that the reasons of this Court, and not my own earlier opinion, correctly state the approach to be taken on the meaning and content of criminal offences such as those in question there and here.
[48]Jiminez (1992) 173 CLR 572.
The governing principles: I agree with the following conclusions stated by my colleagues:
(1)The starting point for resolving the first issue is an appreciation that what is involved is a question of statutory construction[49];
(2)The general principles of criminal responsibility necessarily inform the construction of criminal statutes[50];
(3)Although "honest and reasonable mistake" is sometimes described (as it was in this Court in Jiminez[51]) as a "common law defence", it is more accurate to characterise it as a circumstance or consideration that may deprive the facts of an ingredient essential to the offence[52];
(4)There is a strong presumption that the statutory definition of a crime contains an express or implied proposition as to the state of mind required on the part of the accused[53]. Although Parliament may, by clear provision, render criminal offences carrying serious penal consequences "absolute", courts are entitled to, and do, expect that Parliament will make any such purpose completely clear. Essentially, this is because of the seriousness with which courts view the imposition of criminal punishment (commonly involving loss of liberty and reputation) and the assumption that, absent clear provision, Parliament has meant the usual presumption to apply[54]; and
(5)Although there are considerations in the present case that support the Court of Criminal Appeal's construction of s 66C(3) of the Act, the better view is that the "necessary implication"[55] required to sustain the reading of the statute for which the respondent contends is missing in this case[56]. At best, for the respondent, the Act might be said to be unclear, particularly if the Second Reading Speech is given weight. At worst, s 66C(3) of the Act simply creates a new offence, carrying heavy penalties, in a general criminal statute, that is to be construed so as to give effect to the normal presumption.
[49]Joint reasons at [5]; reasons of Hayne J at [138]; see also reasons of Heydon J at [200].
[50]Joint reasons at [5]; reasons of Hayne J at [146].
[51](1992) 173 CLR 572 at 581-582.
[52]Joint reasons at [6]; reasons of Hayne J at [138]; see also reasons of Heydon J at [200].
[53]Reasons of Hayne J at [159] citing R v Tolson (1889) 23 QBD 168 at 187 per Stephen J.
[54]See joint reasons at [7].
[55]B [2000] 2 AC 428 at 481 per Lord Hutton (Lords Mackay of Clashfern and Steyn agreeing) (emphasis in original); see also at 464 per Lord Nicholls of Birkenhead (Lord Irvine of Lairg LC agreeing) (describing the test as being whether the creation of absolute liability is "compellingly clear"). See Simester and Sullivan, Criminal Law: Theory and Doctrine, 3rd ed (2007) at 169-170.
[56]Joint reasons at [35].
When one reaches this view, the application of the normal presumption in the circumstances of the present case is at once rational and understandable.
Other factors favouring appellant's case: Conviction of an offence against s 66C(3) of the Act carries a maximum penalty of ten years imprisonment. It thus has serious penal consequences. This is an important consideration, repeatedly recognised by this Court, favouring the application of the normal presumption[57].
[57]See eg He Kaw Teh (1985) 157 CLR 523 at 530 per Gibbs CJ (Mason J agreeing), 567 per Brennan J, 595 per Dawson J.
Apart from the custodial and reputational consequences of conviction of such a serious offence, an offender against s 66C(3) of the Act becomes a "registrable person" under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). Such a person is required to comply with a reporting regime, involving the provision of specified personal information to the Commissioner of Police[58], ordinarily for a period of 15 years[59]. Such information is recorded in the Child Protection Register[60]. I agree with Hayne J that the existence of a general prosecutorial and sentencing discretion does not diminish the gravity of the consequences that can follow from being convicted of such an offence[61].
[58]See Child Protection (Offenders Registration) Act 2000 (NSW), Pt 3.
[59]Where the offender was a child at the time of the offence, as the appellant was, the length of the reporting period is reduced: see Child Protection (Offenders Registration) Act 2000 (NSW), s 14B.
[60]Child Protection (Offenders Registration) Act 2000 (NSW), s 19.
[61]Reasons of Hayne J at [173].
In the Court of Criminal Appeal, Howie J acknowledged the difficulties involved in viewing s 66C(3) of the Act as a provision creating "an absolute offence" when the experience of courts suggested that the "likelihood of an innocent mistake" with respect to age increases "as [a] child becomes older"[62]. He was correct to do so.
[62](2007) 171 A Crim R 371 at 402 [137].
Conclusion: the Court of Criminal Appeal erred: On the point of difference between the construction of the Act favoured in the joint reasons and by Hayne J, and that favoured by Heydon J, I prefer the former approach. It is more faithful to the presumption, often affirmed by this Court, that serious criminal offences are to be read as subject to a "defence" of honest and reasonable mistake about facts essential to conviction. We should not waver from the Court's previous insistence upon that principle. In this respect I join with the majority. The Court of Criminal Appeal erred in accepting the contrary argument maintained by the respondent. Prima facie, this conclusion entitles the appellant to relief from this Court.
The trial judge's directions were erroneous
A lively controversy: This is not one of those cases in which the issue before this Court was first conceived at appellate level. As the record of the trial demonstrates, there had, for some time, been debate in the District Court of New South Wales about the relevance of "honest and reasonable mistake of fact" to offences such as that established under s 66C(3) of the Act. Some judges had concluded that the "common law defence" was not available. Others had reached the opposite conclusion[63].
[63]The attention of this Court was drawn to the reasons of Goldring DCJ in R v Al-Abodi (2005) 2 DCLR (NSW) 351 and of Knox DCJ in R v Douglass unreported, District Court of New South Wales, 10 August 2005 which substantially reached the conclusion now endorsed by this Court on the first issue. The reasons of Nicholson DCJ in R v Yeo unreported, District Court of New South Wales, 26 July 2005 reached a contrary conclusion.
The ERISP interview: In the present trial, the conflicting decisions were drawn to the notice of the trial judge. The issue had become relevant because the appellant had made statements to police (out of court and not on oath) about his belief as to the age of the complainant. These formed part of an electronic recording of interview ("ERISP"), which was in evidence. The following is the relevant passage from the interview:
"Q53: How long have you known [the complainant] for?
A: I think it was the start of the year, I started to go to … and then that's when I met [the complainant].
Q54: Do you know how old [the complainant] is?
A: 16.
Q55: How do you know that?
A: Well that's how, that's how old she's told me.
Q56: When did she tell you that?
A: Like when I first met her. I just assume that she's 16 ever since.
Q57: Does [the complainant] go to school?
A: She didn't for a while but she does now at the moment as far as I know, she's back at school.
Q58: O.K. Do you know what year she's in?
A: Year 10 I think."
In light of this evidence and of the submission for the appellant that the "common law defence" of honest and reasonable mistake was available, the trial judge was required to rule on whether he would, as requested:
"remove from the jury's consideration that portion of the charge, which is the aggravating portion, that the complainant was under the age of 16 years, namely 15 years of age, on the basis that there should be available to him a defence that he was not aware that she was under the age of 16 years".
Trial judge's ruling: The trial judge declined to do so. However, he proceeded to what he described as "[t]he more difficult problem" arising in relation to the second count of the indictment (and the alternative third charge pursuant to s 66C(3)). He asked himself:
"[I]s there a defence available that … the accused reasonably believed that [the complainant] was over the age of 16 years or indeed 16 years of age?"
The trial judge noted the conflicting decisions within the District Court. In brief terms he reviewed the relevant arguments. He then concluded:
"[I]t seems to me that if it is a defence, that is, if the onus of proof is upon the accused, then you are not reducing an age of consent of 16 years to 14 years because it all depends upon the accused being able to satisfy, on the balance, a jury of his belief and the reasons for it. …
But, secondly, having read those other judgments, I have concluded that the common law defence is still available. … I intend to allow counsel for … the accused to argue that defence [in respect of the charge under s 66C]."

Inherent in the foregoing ruling was a conclusion that the ERISP evidence afforded an evidentiary foundation for the proposition that the appellant believed, mistakenly, that the complainant was in fact 16 years of age at the time of the alleged offence. If it had been otherwise, it might have been expected that the trial judge would have said as much, and refused to waste time on an irrelevant and hypothetical issue.
Submission of trial counsel: Before the trial judge instructed the jury on the applicable law, the appellant's counsel informed him that "for pretty obvious forensic reasons" he would not be addressing the jury "on the common law defence available" in respect of the charge under s 66C. Nevertheless, counsel made it clear that he was not abandoning that "defence". The following exchange took place:
"[COUNSEL]: … The only evidence is that he thought she was 16 so I mean if they apply what they've got before them to the facts––
HIS HONOUR: So you probably won't touch on it but you still want me to.
[COUNSEL]: Absolutely your Honour. Your Honour's obliged to give them the law and all the available defences. I mean I can't say … he didn't touch her but if he did she's the right age. … But I don't want your Honour to think that I'm abandoning that because in my view … the evidence is that there's a complete defence to it."
Trial judge's directions to the jury: In due course, the trial judge charged the jury on the relevance of the appellant's belief as to the age of the complainant:
"There is, in this case, a defence. The defence is one in which the onus of proof switches slightly. Only in this one small area. The defence is one of having an honest belief that she was not under the age of 16 years. The Crown must prove its case beyond reasonable doubt but where there is a defence such as this the onus switches. There is no onus of proof of any matter on an accused person except where such a defence as this … [is] raised. The accused needs only to establish what the accused relies on in this regard to a lower standard of proof than beyond reasonable doubt. The accused is required to prove the accused's case in this regard only on the balance of probabilities. That is to say the accused needs only to show that it is more likely than not that what the accused asserts is so."
Later in his directions, the judge read the jury questions 54 to 58[64] and the appellant's answers to them. He noted that question 54 was "perhaps an important one". However, he gave no further indication to the jury of the consequence of a conclusion, reached on the basis of the recorded interview, that the appellant honestly and reasonably believed the complainant to be 16 years of age or older.
[64]See above these reasons at [68].
Once it was concluded, correctly, that the offence against s 66C(3) of the Act was not an "absolute" one, requiring no more than proof that sexual intercourse had taken place with a person in fact under the age of 16 years, it was essential that the jury be given accurate instructions upon that basis. However, perhaps because of the previous state of the law (where mistake as to the age of a complainant comprised a statutory defence[65]), possibly misled by the use of the expression "common law defence", the trial judge told the jury that it was for the appellant to establish the foundation for the "defence".
[65]The Act, s 77(2) (repealed). See joint reasons at [19].
Misdirection on burden and standard of proof: During submissions, the trial judge's notice was drawn to a conclusion of Goldring DCJ in a decision which, in large part, the trial judge followed. In that decision, at the end of his ruling, Goldring DCJ had said[66]:
"At this stage I propose to direct the jury, in accordance with Chard v Wallis^[[67]^], that when they come to consider the statutory alternative, that it is incumbent on the Crown, if the defence raises that the accused had an honest and reasonable belief, to negative that."
[66]Al-Abodi (2005) 2 DCLR (NSW) 351 at 355-356 [21].
[67](1988) 12 NSWLR 453.
The present trial judge could not be persuaded to follow the same course. It was the correct course, consistent with the authority of this Court[68]. At common law, an accused was not obliged to establish an honest and reasonable mistake of fact as to the age of the complainant as a "defence" to a charge such as that based on s 66C(3) of the Act. All the accused had to do was "raise" a suggestion of honest and reasonable belief on his part and identify some supporting evidence which it was open to the jury to accept. Once the suggestion was raised, it was for the prosecution to exclude it.
[68]He Kaw Teh (1985) 157 CLR 523.
Conclusion: error at trial: I therefore agree with the joint reasons and with Hayne J on the second issue[69]. The trial judge erred both in assigning the burden of proof to the appellant and in defining the applicable standard of proof. On the face of things, this deprived the appellant of a trial according to law in respect of a matter which his counsel had identified in his submissions at trial. This therefore affords a further ground for providing relief to the appellant.
[69]See joint reasons at [35]; reasons of Hayne J at [189].
Honest mistake of fact was available at the trial
The inconsistent propositions issue: In this Court, as in the Court of Criminal Appeal, the respondent submitted, in effect, that it was impermissible for the appellant's counsel to request a judicial direction premised on a hypothesis inconsistent with the manner in which he had conducted his case at the trial. The prosecution argued that no directions were required concerning the appellant's belief as to the complainant's age, given that the sole defence postulated on his behalf was that no sexual intercourse had taken place between him and the complainant at all. As the trial judge acknowledged in his remarks on sentencing, the jury's verdict on the s 66C(3) offence represented a rejection of that claim.
Both the trial judge and Howie J in the Court of Criminal Appeal, each very experienced in the conduct of criminal trials, recognised correctly that it is not at all unusual for accused persons to propound arguments that are difficult or impossible to reconcile. The trial judge acknowledged this by accepting without demur the submission that he was obliged to instruct the jury on the "defence" of honest and reasonable mistake as to the age of the complainant, even though this was obviously inconsistent with the defence that counsel had indicated he planned to advocate.
Howie J, for the Court of Criminal Appeal, rejected the respondent's submission on this point in a short passage upon which I cannot improve[70]:
"The Crown's contention is that the appellant could not assert that he did not have intercourse with the complainant yet also assert that, if he did, he was mistaken as to her age and the fact that she was not consenting. The Crown submitted that a 'contingent defence' would be 'offensive to basic principle'. That submission must be rejected. It would be no more offensive than a judge being required to leave the issue of self defence to the jury even though the accused was raising an alibi for the time of the offence".
[70](2007) 171 A Crim R 371 at 404-405 [149] citing Pemble (1971) 124 CLR 107.
In light of the record, it cannot be doubted that the appellant's counsel made a proper request for an appropriate direction. Repeatedly, he emphasised that, despite the way in which he would be putting the matter to the jury, he was not waiving the alternative case that he asserted arose from the evidence[71]. He made clear his submission that the trial judge was obliged to give directions in fulfilment of his own responsibility "to secure for the accused a fair trial according to law … [on] any matters on which the jury, upon the evidence, could find for the accused"[72].
[71]See eg above these reasons at [73].
[72]Pemble (1971) 124 CLR 107 at 117-118.
The Pemble requirement: There was nothing odd, or even particularly surprising, in counsel for the appellant pressing the hypothesis that no sexual intercourse at all had taken place, whilst the judge reminded the jury that, if they were to reject that hypothesis, it would not be the end of their consideration of the matter. It does not impose too onerous a burden to require a trial judge to instruct the jury that, in such circumstances, they should proceed to consider whether, at the relevant time, the accused held an honest and reasonable, but mistaken, belief as to the age of the complainant. That course simply "covers all the bases" that logically arise. If necessary and appropriate, the judge could inform the jury that he or she was instructing them in that way because he or she was obliged by law to explain to them all of the legal principles necessary to ensure a fair and accurate trial of the accused. If the jury were told that this course sometimes becomes necessary because counsel may overlook a legal defence or because counsel might elect not to argue a point, they would understand. The judge's duty transcends that of counsel. The judge represents the whole community and the law. And that is what Pemble holds.
Conclusion: entitlement to a direction: The trial judge was therefore right to accept an obligation to direct the jury on the relevance of honest and reasonable mistake of fact as to the complainant's age (although, for the reasons explained above, the directions which he gave were incorrect and incomplete). I agree with the joint reasons, and with Hayne J, that no inconsistency was involved in doing so[73]. The Court of Criminal Appeal was correct to so conclude. On this issue too, the appellant is entitled to succeed.
[73]Joint reasons at [38]; reasons of Hayne J at [191].
The inapplicability of the proviso in this case
Point reached in the analysis: The appellant is thus successful on the three issues debated below, both at the trial and in the Court of Criminal Appeal. The appellant's submission that the trial judge, in explaining the ingredients of the alleged offence under s 66(3), was required to instruct the jury to consider the suggestion, arising on the evidence, of honest and reasonable mistake as to age on the appellant's part, was correct. The contentions of the respondent to the contrary or, alternatively, to the effect that the directions given by the trial judge on this point were accurate, or that the appellant is unable to place reliance on an argument inconsistent with the presentation of his case at trial, are all rejected.
On the face of things, the fact that a verdict and conviction have followed a direction that was erroneous as to the components of the relevant offence, and as to the onus and standard of proof of a so-called "defence" to it, would appear to necessitate a retrial. The postulate of a legally accurate trial, in the sense of one in which the components of each offence alleged are correctly explained and understood, lies deep in our tradition of criminal justice. Its importance is compounded where, as here, significant custodial and other punishments are involved.
A new point in this Court: Not for the first time, the point that defeats the appellant in this Court is one that was accepted neither at first instance, nor in the intermediate court. Whilst I acknowledge the duty of this Court, where error on the part of an intermediate court has been shown, to give effect to its own conclusions in disposing of a case, prudence, and a proper discharge of this Court's constitutional functions as a final court of appeal, suggest that the closest attention should be paid to the opinions of decision-makers below on the now determinative point.
One may comb the transcript of the trial as closely as one wishes, but one will not find a suggestion on the part of the prosecutor that, even if the circumstance of honest and reasonable mistake of fact as to the complainant's age was relevant to the alleged offence under s 66C(3) of the Act, either: (1) the issue had not been properly raised or adequately reserved; or (2) there was insufficient evidence to afford (if accepted) a factual foundation for such mistake to be propounded.
The exchange extracted above[74] makes it abundantly clear that counsel for the appellant placed explicit reliance on honest and reasonable mistake of fact. He did not waive it by the manner in which he addressed the jury. On the contrary, he submitted that, in accordance with Pemble, the trial judge had his own legal duty to instruct the jury on the point.
[74]See above these reasons at [73].
There can be no suggestion that the trial judge did not accept that the ERISP evidence provided a foundation in fact for this "defence". Further, it is clear that the trial judge accepted, in accordance with Pemble, that he was obliged to give directions to the jury on what followed if they were to accept that evidence.
Likewise, there was no indication on the part of the Court of Criminal Appeal that the appellant had no basis for reliance on honest and reasonable mistake of fact. It is true that, in light of their conclusion on the applicable law, the judges of that Court were not required to decide "whether there was evidence to support the common law defence in the present case"[75]. However, everything that was said by Howie J, giving the principal reasons of the Court, suggests rejection of the narrow view, now favoured in this Court, that the ERISP evidence is insufficient to raise an issue as to the appellant's belief about the complainant's age. Thus, Howie J said[76]:
"It cannot be doubted that, even if an accused does not give evidence, a fact can be proved in the Crown case. For example, in the appellant's trial the assertion that he believed the complainant was over the age of 16 years arose in the record of interview tendered by the Crown. But it could arise in other ways, for example by a witness giving evidence of what the appellant had been told about the complainant's age or what he had said about it at some relevant point of time. It is not unusual for a jury to infer a state of mind of an accused, such as a belief that an object was stolen on a charge of receiving, notwithstanding that there was no direct evidence of that belief and, even if the accused was denying being in possession of the object. It seems to me that whether there is evidence to raise the defence will depend upon the facts of the particular case. Generally a judge must leave a defence to the jury if there is evidence upon which a jury could reasonably find the defence established. That is so for other 'defences' where the ultimate onus is upon the Crown. It arises in cases of self-defence and provocation and would arise in respect of a common law defence."
[75](2007) 171 A Crim R 371 at 405 [151].
[76](2007) 171 A Crim R 371 at 405 [150].
If the reference to honest and reasonable mistake of fact as to the age of a complainant as a "common law defence" (a common enough description) is deleted from the foregoing passage, the remaining exposition is entirely orthodox. I would endorse it.
Evidence is for the jury to evaluate: The question of whether there was evidence sufficient to permit a finding of honest and reasonable mistake of fact as to the complainant's age must be answered in the affirmative. True, the appellant did not himself give sworn evidence. The most direct testimony that could have been provided was therefore not adduced. But, as Howie J pointed out, the situation this created was hardly unique. There remained the next best source of the appellant's version, being the ERISP evidence recorded when the appellant's mind was focussed properly and clearly upon the issues now accepted to be of legal significance. The prosecution tendered that evidence in its case.
The ERISP evidence was before the jury. According to the record, it was also available during the jury's private deliberations. It was therefore for the jury to decide whether to accept or reject the relevant statements of the appellant, having regard to their content, his demeanour and other evidence. The jury might have considered that the statements were more believable because of their contemporaneity with the alleged offence, and because the appellant did not disclaim an intention to have sexual intercourse with the complainant. On the contrary, he described his purpose and conduct as consistent with that object until his friends entered the bedroom and insisted on being observers.
It was at all times for the jury to decide what they would make of the appellant's statement that the complainant had told him, when he met her, that she was 16 years of age. Certainly, his belief (inaccurate as it turned out) that she was in Year 10 at school would, if accepted, have been consistent with his stated belief about her age. In such circumstances, to say that there was no evidence of honest and reasonable mistake upon which the jury could have acted ignores the clear statements made in the recorded interview.
The jury might have rejected the appellant's evidence as, by inference, they did in part, albeit without the benefit of correct instructions on the governing law. But it cannot be said that there was no such evidence upon which the jury could have acted. Just as juries may act upon the evidence of recorded police interviews where such evidence tends to establish the accused's guilt of the crime charged, so the jury may act on such evidence where it tends to exculpate the accused.
The trial judge accepted that relevant evidence as to the appellant's belief about the age of the complainant existed and was before the jury. The prosecutor at the trial did not deny it. The Court of Criminal Appeal did not dispute it. Nor should this Court.
Rejecting the majority's disposition: There are three basic reasons of legal principle for my divergence from the joint reasons, and from Hayne J, on the disposition of this appeal, despite otherwise agreeing in their analysis of the applicable law:
.First, I consider that their disposition is disharmonious with the proper approach to honest and reasonable mistake explained in unchallenged decisions of this Court;
.Secondly, I regard it as inconsistent with the explanations by this Court of the duty of the trial judge to direct the jury on all possible grounds of exculpation or defence enlivened by the evidence[77]; and
.Thirdly, I regard it as inconsistent with the language and purpose of the "proviso" and with this Court's explanations about its application.
[77]Pemble (1971) 124 CLR 107.
I will deal with each of these points in turn.
The prosecution must dispel honest and reasonable mistake
Distinguishing statute and common law: Where (as is the case in most Australian jurisdictions[78] and as was formerly the case in New South Wales[79]) a defence of honest and reasonable mistake as to the age of a complainant exists under statute, the enacted provision must be given effect, including in so far as it deals with the applicable burden and standard of proof. However, where, as here, what is in issue is not a statutory prescription, but a common law principle as to the constituent elements of the crime itself, different rules apply.
[78]Crimes Act 1958 (Vic), s 45(4); Criminal Law Consolidation Act 1935 (SA), s 49(4); Criminal Code (Q), s 215(5); Criminal Code (Tas), s 124(2); Criminal Code (NT), s 127(4); Crimes Act 1900 (ACT), s 55(3).
[79]The Act, s 77(2) (repealed).
These rules are a consequence of the fundamental principle that the prosecution must prove beyond reasonable doubt all of the elements of an offence, whether express or implied. Thus, in Proudman v Dayman[80], Dixon J explained:
"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt."
[80](1941) 67 CLR 536 at 541.

The 1924 changes. The Crimes (Amendment) Act 1924 made the following changes. Section 71 was repealed and a new s 71 enacted in the following terms: "Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years." A new s 77 was enacted. So far as relevant, its terms were:
"The consent of the ... girl ... shall be no defence to any charge under [section] seventy-one ...
Provided that it shall be a sufficient defence to any charge which renders a person liable to be found guilty of an offence under [section] seventy-one ... if it be made to appear to the court or jury before whom the charge is brought –
(a)that the girl was over the age of fourteen years at the time of the alleged offence; and
(b)that she consented to the commission of the offence; and
(c)either –
...; or
(ii)that the person so charged had at the said time reasonable cause to believe, and did in fact believe, that she was of or above the age of sixteen years."
Neither that change, nor any other change before 2003, made any difference to the non-availability of the Proudman v Dayman principle.
The abolition of the death penalty in 1955. The Crimes (Amendment) Act 1955, s 5(f), amended s 67 by substituting for the words "to suffer death" the words "to penal servitude for life".
Changes in 1974 and 1981. In 1974, the Crimes and Other Acts (Amendment) Act made two changes to s 77, neither relevant to the present case. In 1981, although various sexual offences provisions in the Crimes Act were changed by the Crimes (Sexual Assault) Amendment Act 1981, ss 67 and 71 were not changed, and s 77 was changed only in minor and immaterial respects.
The 1984 changes. The Crimes (Amendment) Act 1984 introduced various offences of homosexual intercourse. Section 78H corresponded with s 67 and s 78K with s 71 (save that the age range was 10 to 17 years – that is, the age of consent was 18, not 16).
The 1985 changes. The Crimes (Child Assault) Amendment Act 1985 repealed ss 67 and 71. Instead of s 67, a new s 66A provided: "Any person who has sexual intercourse with another person who is under the age of 10 years shall be liable to penal servitude for 20 years." And instead of s 71, a new s 66C(1) provided: "Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to penal servitude for 8 years." Although the penalty for an offence against the former s 67 was reduced from life imprisonment to 20 years in the new s 66A, a substantial difference was maintained between it and the penalty for an offence against the former s 71 and the new s 66C(1), even though the latter was reduced to 8 years. Further, while ss 67 and 71 rendered criminal only carnal knowledge of girls, ss 66A and 66C(1) rendered criminal sexual intercourse with "another person", whether male or female. Section 77 was also repealed and replaced. The new s 77(1) provided that "[e]xcept as provided by subsection (2)", consent was no defence to various charges including charges under s 66A or s 66C. The new s 77(2) relevantly provided:
"It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section ... 66C ... if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that –
(a)the child to whom the charge relates was over the age of 14 years at the time the offence is alleged to have been committed;
(b)the child to whom the charge relates consented to the commission of the offence; and
(c)the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years."
That is, the conferral of that defence on persons alleged to have committed crimes against s 66C(1) did not extend to males who were alleged to have committed offences on males.
The introduction of s 66F in 1987. The Crimes (Personal and Family Violence) Amendment Act 1987, although it did not amend s 66A, s 66C(1) or s 77(2), did introduce a crime of having sexual intercourse with a person who had an intellectual disability. Section 66F(5) provided: "A person does not commit an offence under this section unless the person knows that the person concerned has an intellectual disability." That provision has survived the legislative amendments in 2003 which pose the construction issue before the Court.
Changes in 1989, 1995, 1999 and 2002. The Crimes (Amendment) Act 1989, the Criminal Legislation Amendment Act 1995 and the Crimes Legislation Amendment Act 1999 made immaterial amendments to s 77(2). The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, s 3 and Sched 2 item 2, amended s 66A by increasing the penalty for sexual intercourse with a child under 10 from 20 to 25 years.
The exclusion of the Proudman v Dayman principle before 2003
Thus from 1910 until just before the time when the Crimes Amendment (Sexual Offences) Act 2003 came into force the position was as follows. Sexual intercourse with a girl (from 1985, another person) under 10 was a crime punishable by death, then by life imprisonment, then by 20 years imprisonment, then by 25 years imprisonment. Sexual intercourse with a girl (from 1985, another person) of or over the age of 10 and under 16 was a crime punishable by 10 years penal servitude, then by 8 years imprisonment. To a charge of the latter offence under s 66C, s 77(2) afforded a defence of consent, provided other conditions were satisfied: from 1985 the other conditions were that the person accused and the other participant were not both male, the other participant was over 14, and the accused reasonably believed that the other participant was 16 years or older. That defence applied not only to s 66C charges, but also to certain charges under ss 61L, 61M(1), 61N(1), 61O(1) and (2) and 66D.
The legislation presented the following pattern. When some defence in the strict sense relating to a mental state was created, explicit provision was made for it: one example is the legislation in existence from 1910 that led to s 77(2) in the form it took just before its repeal, and another example is s 78C(1), which created a defence to charges of incest or attempted incest that the accused did not know that he or she was related to the other participant. When some specific mental state had to be proved by the prosecution beyond reasonable doubt, specific provision was made for it, as with s 66F(5). This is a pattern which points strongly towards reading the legislation creating offences of sexual intercourse below specified ages as excluding the Proudman v Dayman principle.
Plainly s 66F(2)(a), creating the offence of having sexual intercourse with another person who has an intellectual disability, could not have been given, and cannot now be given, a construction corresponding with the Proudman v Dayman principle in view of s 66F(5). That is because the specific creation of a duty – a rather heavy one – on the prosecution to prove beyond reasonable doubt that the accused knows of the other participant's intellectual disability as a necessary condition for conviction is inconsistent with recognition of a lesser duty on the prosecution to exclude the existence of an honest and reasonable belief by the accused that the other participant had no intellectual disability. While it is true that the offence created by s 66F(2)(a) is not related to the age of the person participating with the accused in the act charged, and while it is true that the offences created by ss 66A and 66C(1) were age-related in that way, many persons of intellectual disability share with many persons aged less than 16, and even more persons aged less than 10, what s 66F(3) describes as a "vulnerability to sexual exploitation".
Further, s 66C(1), which created the offence of having sexual intercourse with another person aged between 10 and 15, could not have been given a construction corresponding with the Proudman v Dayman principle, at least in relation to persons accused of sexual intercourse with persons aged 14 or 15 who could satisfy the other conditions of s 77(2)[185]. It would have been incongruous, in view of the defence of consent available to such persons under s 77(2) (provided they could also prove that they had a reasonable cause to believe, and did believe, that the other participant was 16 or over), to construe s 66C(1) as creating an offence depending on the prosecution's capacity to exclude beyond a reasonable doubt the accused's honest and reasonable belief that the other participant was 16 or over. From the accused's point of view, s 77(2) afforded a path to acquittal, but a difficult one. The existence of that specific aspect of the legislative regime was not reconcilable with the existence of the easier path to acquittal which a Proudman v Dayman construction of s 66C(1) would have afforded, with a more favourable burden and standard of proof.
[185]If it matters, according to the Court of Criminal Appeal, the appellant conceded – it is not clear how extensive the concession was – in that Court that the Proudman v Dayman principle did not apply to the offence created by s 66C(1) while s 77(2) was in force: CTM v The Queen (2007) 171 A Crim R 371 at 385 [65].
Section 66C(1) could not have been given a construction corresponding with the Proudman v Dayman principle in relation to accused persons who could not take advantage of the s 77(2) defence of consent in relation to sexual intercourse with persons aged 14 or 15 on the ground that both participants in the actus reus were male. To have read s 66C(1) in its application to male persons accused of sexual intercourse with males aged 14 or 15 as attracting the Proudman v Dayman principle, while also reading s 66C(1) in its application to male persons accused of sexual intercourse with females aged 14 or 15, or female persons accused of sexual intercourse with male or female persons aged 14 or 15, as not attracting that principle, would have been incongruous and artificial.
Moreover, s 66C(1) could not have been given a construction corresponding with the Proudman v Dayman principle in the case of accused persons charged with the offence of having sexual intercourse with another person aged between 10 and 15, being persons unable to take advantage of the s 77(2) defence because the other person was aged less than 14. Again it would be incongruous to have given s 66C(1) a construction corresponding with the Proudman v Dayman principle for one class of accused persons charged with a particular offence when it did not have that construction in its application to another class of persons charged with the same offence.
Finally, s 66A, creating the offence of having sexual intercourse with another person under the age of 10, was not to be construed as corresponding with the Proudman v Dayman principle. If the offence created by s 66C(1) was not to be so construed, but s 66A was to be so construed, the legislative regime would not have been a coherent one.
The language of the 2003 amendments
What is there in the language of the 2003 amendments which suggests any change in that state of affairs? What is there to suggest that the Proudman v Dayman principle now applies to offences relating to sexual intercourse with persons below a certain age? The 2003 amendments involved repeal of homosexual offences and assimilation of them with other sexual offences, thus creating a uniform age of consent of 16. Apart from those amendments and apart from other amendments which were formal in character, the 2003 amendments reveal a trend towards extended criminal liability and heavier sanctions. Thus the conduct of an accused person who had sexual intercourse with another person under his or her special care when that other person was above the age of 17 and under the age of 18 was rendered criminal (s 73(2)). The incest provisions were extended to females, and to persons having sexual intercourse with grandparents, half-brothers and half-sisters (s 78A). The penalty for incest was increased from 7 years imprisonment to 8 (s 78A(1)).
Of central concern is the repeal of s 66C(1) and s 77(2). In place of s 66C(1), a "new" s 66C(1) and (3) provided:
"(1)Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.
...
(3)Any 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."
The repeal of s 77(2) was not accompanied by any replacement or derivative provision.
The "new" s 66C differed from the former s 66C(1) in several ways. First, leaving aside offences with aggravating features, dealt with in s 66C(2), (4) and (5), it replaced one offence (sexual intercourse with another person aged 10 to 15 years) with two offences (sexual intercourse with another person aged 10 to 13 years (s 66C(1)) and sexual intercourse with another person aged 14 to 15 years (s 66C(3))). Secondly, it increased penalties markedly: for the offence of sexual intercourse with another person aged 10 to 13 years, instead of 8 years imprisonment the punishment was 16 (s 66C(1)); for the offence of sexual intercourse with another person aged 14 to 15 years, instead of 8 years imprisonment the punishment became 10 (s 66C(3)). These increased penalties are consistent with the increase effected in 2002 in the penalty for the crime created by s 66A of sexual intercourse with a person under 10 from 20 years imprisonment to 25[186].
[186]See [216] above.
Thus the offences created by s 66C(1) and (3) were "new" in form only: in truth the legislation simply preserved the pre-2003 position, while adopting a more discriminating (but more onerous) approach to penalty. Leaving aside s 77(2) and the Proudman v Dayman principle, that which would have been criminal before the 2003 amendments remained criminal after them, but attracted higher penalties.
Overall then, the 2003 amendments widened criminal liability (not least by repealing the s 77(2) defence) and increased the severity of criminal sanctions (apart from reductions flowing from the repeal of the provisions relating to homosexual offences).
Exclusion of the Proudman v Dayman principle: radical and obscure nature of suggested change
The appellant's case is that the inapplicability of the Proudman v Dayman principle before 2003 was reversed by the amendments made in 2003. If so, a very extensive and radical change to a long-standing position would have been effected, because the Proudman v Dayman principle had not existed for at least the previous 93 years in relation to age-related sexual crimes against females, and for the previous 18 years in relation to age-related sexual crimes where it was not the case that both participants were male. And the change would have extended to various other provisions to which s 77(2) provided a defence[187]. Yet the repeal of the defence conferred by s 77(2) does not suggest that that radical change was made. The repeal of s 77(2) suggests only that an onerous pathway to acquittal was removed. It does not suggest that an easier pathway to acquittal came into existence despite having not existed for a long time. Nothing else in the new statutory language supports the outcome advocated by the appellant.
[187]See above at [217].
But the change advocated by the appellant is not only radical: it is also obscure. If, in lieu of the inapplicability of the Proudman v Dayman principle relating to honest and reasonable belief to the former s 66C, that principle is to be applied to the new s 66C(1) and (3) in consequence of the repeal of s 77(2), a question arises: how far is that principle to be applicable?
(a)Is it to be applicable only in the precise area to which s 77(2) applied – where the participants were not both male, and the participant other than the accused was 14 or more?
(b)Or is it to be applicable where the participants were male, and the participant other than the accused was 14 or more?
(c)Or is it also to be applicable where the participant other than the accused was less than 14?
(d)Or is it additionally to be applicable where the other participant was less than 10?
If all the questions are answered "Yes", the pre-2003 law will have been very extensively altered despite the want of any textual basis for reaching that conclusion, or, as will be seen below[188], without any evident consciousness on the part of the responsible Minister that the amendments led to this result or were intended to. If only one, two or three questions are answered "Yes", in the words of Hodgson JA, "there would be the anomalous situation that, in the absence of anything in the legislation as amended to suggest this result, [the] Proudman v Dayman [principle] would apply to some age-related sexual offences and not to others."[189] Similar questions, and similar difficulties, arise in relation to other provisions to which s 77(2) applied, such as s 61N(1) (act of indecency with a person under 16), s 61O(1) (act of indecency with a person under 16 in circumstances of aggravation), s 61O(2) (act of indecency with a person under 10) and s 61M (aggravated indecent assault of child under 16).
[188]At [233]-[236].
[189]CTM v The Queen (2007) 171 A Crim R 371 at 374 [7].
The relevance of s 66F
A further factor pointing against the correctness of the appellant's approach to the construction of s 66C(3) can be seen by comparing s 66C with s 66F. The conduct rendered criminal by s 66F(2) of having sexual intercourse with another person who has an intellectual disability, or is under the authority of the accused in connection with any facility or programme providing services to persons who have intellectual disabilities, may be identical with conduct rendered criminal by s 66C(1) and (3) in the circumstances of aggravation referred to in s 66C(5)(f), ie where "the alleged victim has a serious intellectual disability". On the appellant's argument, if the charge were brought under s 66C, the Proudman v Dayman principle would operate; but if the charge were brought under s 66F(2), the Proudman v Dayman principle would not operate because of s 66F(5). This would create an anomaly. If the appellant's argument were rejected, the anomaly would not exist.
The irrelevance of Chard v Wallis
The appellant relied on the decision of Roden J, sitting on appeal from the decision of a magistrate, in Chard v Wallis[190]. He held that the Proudman v Dayman principle applied to the offence created by s 78Q(2) of the Crimes Act. Counsel for the appellant described that provision as creating an offence of "gross indecency by a male upon a male aged under 18 years". In fact the relevant offence was procuring the commission of an act of gross indecency by a male person under the age of 18. That decision seems open to some of the criticisms made by the Court of Criminal Appeal[191]. But whether or not that is so, the construction of s 78Q(2) is of limited materiality to the construction of the post-2003 version of s 66C(3) in view of the fact that one of the 2003 amendments was the repeal of s 78Q(2)[192], which was not absorbed into any successor to the pre-2003 version of s 66C[193].
[190](1988) 12 NSWLR 453.
[191]CTM v The Queen (2007) 171 A Crim R 371 at 396-397 [113] and 400-401 [129]-[130].
[192]Crimes Amendment (Sexual Offences) Act 2003, s 3, Sched 1 item [18].
[193]An offence of procurement has now been created by s 66EB introduced in 2007 by the Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007, s 3, Sched 1 item [1]. Section 66EB(7) creates a specific defence "if the accused reasonably believed that the other person was not a child": this points against reading the post-2003 version of s 66C as conforming to the Proudman v Dayman principle.
The Second Reading Speech

Earlier[194], it was suggested that under the applicable common law rules of statutory construction, the correct inquiry may not be into what the legislature "intended", "directed its attention to" or "determined", but into the meaning of the words it employed. In the present circumstances, however, statute permits and perhaps mandates attention to what was in the responsible Minister's mind in relation to the 2003 amendments as reflected in his Second Reading Speech[195]. History teaches that recourse to extrinsic material of that kind tends to afford even less illumination than Mason J thought legislative history did. But in the present case the statements of the responsible Minister, the Attorney-General, do cast some illumination. Speaking of the reduction in the age of consent for males from 18 to 16, the age which had applied to females since 1910, he said[196]:
"The bill rationalises the age of consent in New South Wales to 16 years of age for all persons irrespective of gender or sexual orientation. The lower age limit is absolute – no specific statutory defence is provided for."
He also said at the end of his speech that the Bill "establishes an absolute uniform minimum age of consent of 16 years. There are no statutory exceptions."[197] The "absoluteness" of a lower age limit suggests that not only are no specific statutory defences or statutory exceptions provided for, but that no common law principle of construction having a similar effect, like the Proudman v Dayman principle, applies either. He, and the executive of which he was the spokesman, did not mean or intend by his invitation to the legislature to enact amendments excluding any avenue of acquittal by way of "specific statutory defence" to enable it to take the radical and novel step of creating another and easier avenue to acquittal[198]. The Minister also said[199]:
"The bill now before the House has several crucial differences from the private member's bills previously introduced, as it contains important additional safeguards to protect our young people from sexual exploitation. These further safeguards include the removal of the defence to carnal knowledge based on reasonable mistake of age".
If repeal of s 77(2) was thought to be an "important" safeguard against the sexual exploitation of the young, it is unlikely that the Minister intended that the Proudman v Dayman principle, which creates an easier avenue for the accused to escape conviction by reason of claimed reasonable mistake of age, would operate. That is because if it did operate, it would not only nullify the assigned safeguard against sexual exploitation of the young, but also create a greater risk of that exploitation coming to pass.
[194]See [203].
[195]The Interpretation Act 1987 (NSW), s 34(1)(b), provides:
"(1)In the interpretation of a provision of an Act ..., if any material not forming part of the Act ... is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
...
(b)    to determine the meaning of the provision:
(i)       if the provision is ambiguous or obscure ..."
A difference of opinion as marked as that which exists between a unanimous Court of Criminal Appeal and six Justices in this Court suggests that the relevant provisions are "obscure". Section 34(2)(f) provides:
"(2)Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act ... includes:
...
(f)the speech made to a House of Parliament by a Minister ... on the occasion of the moving by that Minister ... of a motion that the Bill for the Act be read a second time in that House ..."
[196]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 374.
[197]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 377.
[198]See [229] above.
[199]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 374.
The Minister also said[200]:
"The bill eliminates the defence currently available to consensual sexual activity with young people aged between 14 and 16 years, formerly known as carnal knowledge.
The bill removes the express statutory defence presently provided in section 77(2)(c) ... that the person charged had reasonable cause to believe, and did in fact believe, that the child was of or above the age of 16 years. As a consequence, it will no longer be possible to argue that a uniform age of consent of 16 years creates an effective age of consent of 14 years."
The last sentence indicates that the Minister's mind was concentrated not only on the repeal of the "express statutory defence" in s 77(2), but on the Proudman v Dayman principle. That is because the effect of the Proudman v Dayman principle on s 66C(3), if it were not excluded by the legislation, would be to create an effective age of consent of 14 years in relation to the crime created by s 66C(3) in circumstances where the prosecution cannot negate, beyond reasonable doubt, an honest and reasonable belief on the part of the accused that the other participant was aged 16 or more.
[200]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 376.
It is significant that at no point did the Attorney-General make reference to any avenue being left open, after the repeal of s 77(2), to an accused to escape conviction by reason of a reasonable mistake as to age.
If the appellant's construction were correct, a revolution would have been effected by changing the long-established position, and replacing a narrow avenue to acquittal with a broader one[201]. Nothing in the legislative language suggests that this revolution took place. The remarks of the Attorney-General suggest that he and his colleagues were hostile to any such revolution, and intended that it should not take place.
[201]See [229] above.
A "Draconian" result
The appellant contended that the Court of Criminal Appeal's construction should be rejected because it was "Draconian". It would cause an accused person to be punished even though that accused person was not "morally blameworthy" by reason of an honest and reasonable belief that the person under 16 with whom sexual intercourse had taken place was 16 or over. It would mean that the accused could be convicted because the other participant had lied about his or her age. It is true that the consequences of a particular construction can be taken into account in assessing the likelihood of that construction being correct. But once the conclusion is reached that legislation bears a particular construction, even if a court thinks that legislation may be "uncommonly silly", "unwise, or even asinine"[202], that consideration cannot prevail over the legislative language.
[202]Cf, in another context, Griswold v Connecticut 381 US 479 at 527 (1965) per Stewart J; see also at 530-531, and see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner ofTaxation (1981) 147 CLR 297 at 305 and 310.
Order
For the reasons given, the order of the Court of Criminal Appeal dismissing the appellant's appeal was correct. The appeal to this Court should be dismissed.