CTM v The Queen
[2008] HCATrans 117
[2008] HCATrans 117
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S591 of 2007
B e t w e e n -
C.T.M.
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 29 FEBRUARY 2008, AT 10.03 AM
Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friends, MR A.C. HAESLER, SC and MS J.S. MANUELL. (instructed by Legal Aid Commission of New South Wales)
MR D.C. FREARSON, SC: May it please the Court, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))
GLEESON CJ: Yes, Mr Game.
MR GAME: If the Court pleases, I wish to make an application to amend the grounds of appeal to include an additional ground. It does not make any difference in substance to the argument. If I just show you this document. The ground is that the Court of Criminal Appeal erred in finding that an offence under section 66C(3) was an offence of absolute liability. The reason that the ground is included is because, on a proper analysis of the provisions, it may be that something other than honest and reasonable mistake of fact is the mental element attaching to ‑ ‑ ‑
GLEESON CJ: Is this opposed, Mr Frearson?
MR FREARSON: No, your Honour.
GLEESON CJ: Yes, you have that leave.
MR GAME: May I pass this document in and if we could have leave to file that document in the Registry?
GLEESON CJ: Yes.
HAYNE J: The grant, I thought, Mr Game, of leave was limited, was it not, to this one ground and you are seeking to enlarge the ground, are you not?
MR GAME: Your Honour, the ground that was refused concerned a submission that the verdict was unsafe. This is only about the same question of statutory interpretation and this is only included to cover the possibility that in construction of these provisions you would conclude perhaps that an element of ‑ ‑ ‑
GUMMOW J: Look, the point is, Mr Game, you have to expand your grant of special leave, have you not?
MR GAME: I beg your pardon?
GUMMOW J: You have got to have an expansion of the grant of special leave. You cannot circumvent a limited grant of special leave simply by turning up here and trying to expand a notice of appeal, because the subject matter of the appeal itself has to first be expanded, does it not?
MR GAME: In those circumstances, I ask for an expansion of the grant of special leave, but may I make it plain we are arguing about the same question, which is the proper construction of this statutory provision.
KIRBY J: Can we have a look at the grounds?
MR GAME: Yes, certainly, your Honour.
GLEESON CJ: You are not trying to raise any argument about inconsistent verdicts?
MR GAME: Not at all, no, your Honour.
GLEESON CJ: Where, in the reasoning of the Court of Criminal Appeal, did they say this was an offence of absolute liability?
MR GAME: Paragraph 147. I am sorry, that is with respect to R v K. It is really buried in 148, which is ‑ ‑ ‑
GLEESON CJ: You say it is “buried”. Expressions like “absolute liability” and “strict liability” are convenient rubrics under which some principles are discussed, but was it, as it were, a ground of the Court of Criminal Appeal’s decision that this was an offence of liability or is that a label you would apply to their conclusion?
MR GAME: That is a label that I would apply to their conclusion, but their conclusion was that there was no mental element and no defence attaching to the question of age.
GLEESON CJ: But the outcome of this case is not going to turn on labels, is it?
MR GAME: No, your Honour, the outcome of this case turns on a single question, which is the proper construction of section 66C(3).
GLEESON CJ: And, whether on the true construction of section 66C(3), the question of honest and reasonable mistake of fact may arise.
MR GAME: Yes, your Honour. But in construing the provision – that is how the case was argued at trial – it is, in my submission, quite possible that the court would conclude that no aspect of reasonableness has to attach.
GLEESON CJ: You may be right, but labels like “absolute liability” and “strict liability”, which might or might not mean different things, are labels that commentators sometimes apply, or judges commenting on other judgments apply, but I was inquiring whether it is a term that formed, or a concept that formed, part of the reasoning of the Court of Criminal Appeal.
MR GAME: Paragraph 69 ‑ ‑ ‑
GLEESON CJ: Whereabouts in paragraph 69?
KIEFEL J: Perhaps paragraph 105, Mr Game.
MR GAME: Yes, your Honour.
GLEESON CJ: They used the term “strict liability” in paragraph 69 to which you directed attention.
MR GAME: Yes, your Honour.
GLEESON CJ: Do you take that to mean something different from “absolute liability”?
MR GAME: Yes, your Honour. Strict liability means ‑ ‑ ‑
GLEESON CJ: The Crown does not have to prove that he knew she was over 16.
MR GAME: No, but if he raises to an evidentiary onus honest and reasonable mistake of fact, then the Crown has to disprove it and that is what strict liability means in the common law language about these offences. Absolute liability means that you cannot raise a defence of honest and reasonable mistake of fact.
GLEESON CJ: I just want you to point us to the finding that is the subject of your proposed new ground of appeal, that is all.
MR GAME: The passage I took you to before at paragraph 147, which is an ultimate rejection of the English position, and the English position is that, in relation to very similar provisions, if you raise a belief – sorry, the Crown has to disprove beyond reasonable doubt belief as to – or recklessness as to age. So when they say at 147:
their Lordships in finding against the implication that Parliament intended to create an offence of absolute liability –
what they are talking about is an offence in which you could raise no issue as to mistake in relation to age. What I mean by absolute is that you cannot raise anything including absence of reasonable and probable – sorry, of reasonable mistake of fact. So it is the reverse side of the same proposition, but at the heart of the court’s reasoning here is the proposition that no mental state can excuse a person in respect of ‑ ‑ ‑
GLEESON CJ: That is what you say it amounts to. but we are anxious not to be drawn into some terminological debate about absolute liability and strict liability. We have a serious and important question of statutory construction to resolve.
MR GAME: I am sorry, your Honour. All I am interested to do is to preserve the question as to what the true mental state is in respect of this ‑ ‑ ‑
GLEESON CJ: You go ahead and put your argument on the existing ground of appeal and when that has happened we will revisit this question of whether you should be allowed to amend and whether we should expand the grant of special leave.
MR GAME: If the Court pleases.
GLEESON CJ: We can do that in the light of some understanding of what this new ground of appeal is intended to add, if anything, to the existing ground of appeal.
MR GAME: If the Court pleases. May I take the Court directly to the bundle of statutory provisions and could the Court turn to tab 18?
KIRBY J: I should say that as that was not opposed by the respondent, I would have allowed the amendment.
MR GAME: Now, this is the reprint of 2004, but it brings in the statutory amendments which were in tag 17, but I am taking your Honours to the statutory provisions as they stood at the time of this trial and as they appear in the reprint. Now, may I take your Honours to section 66C.
KIRBY J: Now, please bear in mind that though sections 66C and other sections of this part of the Crimes Act trip off the tongue of New South Wales lawyers, if I ever did know about them I really have forgotten them. So do not assume I know the whole structure and scheme.
MR GAME: Can I just explain where I propose to take the Court. I will attempt to put your Honours in the picture as to how these statutory provisions worked at the time of the trial following the 2003 amendments which are behind tag 17. Having done that, and having put to your Honours what we would submit is the proper questions of construction about that, I will then take your Honours back from the beginning, but not in great detail, through the relevant statutory changes so that you can see how the legislation ended at this point. Thirdly, having done that, I will put to your Honours again fairly briefly, I hope, how it related to the circumstances of this trial and the summing‑up.
GUMMOW J: Why are we looking at tab 18?
KIRBY J: The position of common law.
MR GAME: Tab 18 is the reprint that embodies the legislation at the time of this trial. It picks up the 2003 amendments, which are the critical subject of this appeal.
HEYDON J: The time of the alleged offence, presumably.
MR GAME: Yes, sorry. I meant at the time of the offence.
KIRBY J: You might add to your survey at some point what the position was at common law and what the position is under the Code States, just so that we can put it in position.
MR GAME: I will, your Honour. We have a separate bundle that relates to it. The date of the offence was 24 October 2004.
GUMMOW J: Was there a common law offence?
MR GAME: Was there a common law offence of carnal knowledge?
GUMMOW J: Yes. What comes out of the offence is against the first Act of 1861, is it not?
MR GAME: 1861?
GUMMOW J: Yes.
MR GAME: I am pretty sure that there was a common law offence of carnal knowledge before 1861, but this legislation is brought in by the Offences against the Person Act, 1861. Now, if I could take your Honours first of all to section 66C(3), that is the offence of which the appellant was convicted and it was the second alternative. The first alternative I will come to in a minute, which was section 61J. The first alternative was 66C(4). Now, if one looks at section 66C(3), one sees that it is an offence that is made by:
Any person ‑
and if your Honours could note that “person” is an idea that has changed over time ‑
who has sexual intercourse –
and the idea of “sexual intercourse” has changed over time, and “another person” has likewise changed over time. That section, again for simplicity of reference, your Honours can see what section 66C(3) looked like immediately before the amendment by going to tab 16.
GLEESON CJ: Perhaps we ought to begin with 66A.
MR GAME: Yes, your Honour, but I am actually going to take you through this whole amending – the whole of this ‑ ‑ ‑
GLEESON CJ: Because I was going to ask you whether your argument would also apply to a belief that somebody who was aged nine was in fact aged 11, for example.
MR GAME: Well, your Honour, there are several possibilities that one could conclude about that.
GLEESON CJ: Section 66C is part of a wider statutory scheme and 66A and B I should have thought have part of it.
MR GAME: Well, there are several answers to that, and one of them is that a belief that a person, shall we say, was 11 would hardly excuse you if, shall I say, recklessness was the mental element of the offence in 66A. You would hardly fail to be reckless as to the age of a person in the sense of Banditt or Morgan. So if you define section 66A as an offence of – the offence is having sexual intercourse with another person who is under the age of 10 years, so we have a circumstance in what might be described as Glanville Williams’ ideas of criminal responsibility picked up in He Kaw Teh and applied since then. So that is the first answer.
The second answer is that you could charge attempt of the next provision down. This is actually a proposition that was considered by the Model Penal Code and is specifically dealt with in the Criminal Code, so you could charge attempt of the next provision down ‑ ‑ ‑
GLEESON CJ: I take it from what I read in the papers that it is common ground that there is no obligation on the Crown in any of these offences beginning with 66A to prove that the accused knew the age of the person in question.
MR GAME: No, your Honour, but it depends what one ‑ ‑ ‑
GLEESON CJ: Is what I said correct?
MR GAME: Well, your Honour, the answer to that question is this, that the mental element attaching to a circumstance, and our submission is this is an integral circumstance of section 66C(3), is normally knowledge but knowledge picks up recklessness in the Morgan sense.
GLEESON CJ: Well, take the offence under 66A.
MR GAME: Yes.
GLEESON CJ: What, if anything, does the prosecution have to prove concerning age apart from the fact that the other person was under the age of 10 years, specifically – and leaving aside the defence with which we are concerned in the present case – does the prosecution have to prove that the accused knew that the other person was under the age of 10 years?
MR GAME: Well, your Honour, I put my argument in two different ways, but one is that if that is a compelling – shall I say that argument is a compelling problem, then that would be a good reason to construe the provision as bringing in Proudman ‑ ‑ ‑
GLEESON CJ: I was not putting it as an argument at all, it was a question. Is there a disagreement between the parties to this appeal about whether or not, for example, in relation to a charge under 66A, the prosecution has to prove that the accused knew the other person was under the age of 10 years?
MR GAME: There is if knowledge is understood in the broader Morgan sense, yes, your Honour, but, as I say, it is not necessary for me in this appeal to establish anything like that. But the second point I was trying to make was this, that if a quality of reasonableness is brought to belief – that is Proudman v Dayman, then the prosecution does not have to prove anything unless the accused raises to an evidentiary onus an honest belief. The question then is whether that belief is reasonable.
So the answer to the question is, this is a circumstance, a circumstance in interpretation of penal provisions using common law principles, where the mental elements are not spelt out, requires or enables the prospect that there be some mental element; the question is - the question of construction, as I would put it, is that whether or not considerations of, shall one say, the absurdity of requiring the Crown to prove knowledge in relation to that is a reason and an overwhelming reason why honest and reasonable mistake of fact is the mental element attaching to it.
KIEFEL J: Mr Game, would the authorities permit someone to raise a defence of mistaken relation to section 66A on the basis of a belief that the child was 11 if that belief discloses guilt of an offence under one of the other provisions; that is that the child was under 14 or under 16 in any event?
MR GAME: Your Honour, there are two answers to that. One is that the person could be guilty of attempting the next offence down. The second answer is provided, in effect, by Justice Howie in his judgment where he says that honest and reasonable mistake of fact only applies if the honest and reasonable mistake of fact makes the person innocent of any offence at all. So you could not have an honest and reasonable mistake of fact here because you have committed an offence.
KIEFEL J: That is consistent with the authorities, is it not? It could not be raised.
MR GAME: It is set out at appeal book pages 630 to 631. Justice Howie goes through the cases that say, in effect, that you could not raise honest and reasonable mistake of fact in relation to section 66A for the reason that it could not be an honest and reasonable mistake of fact that you had committed some other offence. Those are the ways in which we would seek to deal with this question of statutory interpretation where it throws up, as it were, what is said to be the absurdity of the construction when you go that way. The absurdity of the construction point that we see when you go the other way is that, shall we say, if two 15‑year‑olds deceive each other about their age, then they are both committing an offence under section 66C(3); or if one deceives the other, then the other is guilty of a criminal offence and the first is guilty of procuring it.
So I just wanted, before going through the provisions of the 2004 reprint, to draw your Honours’ attention to - behind tab 16 you see how section 66C looked before ‑ ‑ ‑
GUMMOW J: This is Reprint No 19, is it?
MR GAME: That is correct, your Honours.
KIRBY J: That is dealing with the position up to 2002.
MR GAME: Yes. I am just showing you what section 66C looked like before the section 66 amendment that came in May 2003. You will see that the offence has been broken up. You will see also that there is an introduction – it has been broken up into age frames and there has been introduced circumstances of aggravation. If you go back to section 66C(5) as it was at the time of this trial in the reprint at tag 18, you will see that there were circumstances of aggravation. Circumstances of aggravation here are what we would describe as integral parts of the circumstances of the offence. So on ordinary principles of statutory interpretation you would normally connote some mental element, whether it be recklessness or an absence of reasonable mistake of fact.
If you looked at subsection (5)(a), (b), (c), (d) and (e) – take (e), (f) and (g), for example, the integral fact, as it were, that aggravates the offence are those matters. We would submit that such matters so integral to the offence must connote some idea of a mental element.
GLEESON CJ: We had a case not all that long ago from Queensland called Libke concerning a Queensland statutory counterpart of paragraph (f) and although it was not central to the issue with which we had to deal, a question arose in that case about what, as I recollect it, was a Queensland statutory qualification to (f) turning on the belief of the alleged offender about the intellectual capacity, if I could use that expression, of the victim. Is there anything in the New South Wales legislation that deals specifically with that question, or is left at (f)?
MR GAME: Your Honour, there is one qualification to that. Perhaps my main argument is that this part is silent about mental elements whether it be honest and reasonable mistake of fact, so it falls for the Court, as with all such similar provisions, to work out what that mental element is. But the answer to your Honour’s question is this. We would submit that in (f), because it is an integral circumstance, there must be some mental element whether it is honest and reasonable mistake of fact, but if you go to section 66F you will find another offence. That offence was introduced in 1987 and is a separate offence but that offence spells out its mental element in subsection (5) in Reprint No 20. Everything I am referring to at the moment is behind tag 18 and it is Reprint 20.
KIRBY J: Is that 66F or 66EA(5)?
MR GAME: No, it is 66F on page 61.
KIRBY J: If you look at page 54 in the Reprint No 19 there is 66EA(5) which seems to be a provision similar to that which the Chief Justice mentioned was in Libke, a person does not commit the offence unless he knows that the person concerned has a ‑ ‑ ‑
HAYNE J: What has happened, Mr Game, is that pages have been assembled in the wrong order. It does not help.
MR GAME: My apologies, your Honour. I am sorry, your Honour.
GUMMOW J: Sorrow is not always enough, Mr Game.
MR GAME: I know, your Honour. We checked, we double checked but we obviously did not – we made a mistake, I am sorry.
HAYNE J: Pages 60, 61 of Reprint 20, is that where I should be looking?
MR GAME: That is correct, your Honour. What I am saying is that this is an example of one where there is a mental element that is spelt out. That is unusual in the provisions. Normally you have to work out what the mental element is attaching to any physical element so described. If I may go back to – still on Reprint No 20 – we see a definition in section 61H of “sexual intercourse” which has changed over time and substantially so and at a certain point that definition of “sexual intercourse” was picked up with respect to carnal knowledge, but only a few years ago. I will explain that shortly. Section 61I is the sexual assault offence and section 61I has a mental element with respect to consent.
KIRBY J: I am jumping all over these sections. I just have to repeat to you, I am going to keep very calm about this, but you know the structure of this. It is very hard to just jump from one to another and not to understand the structure of the sections and how they all fit together. Is there a structure, because presumably there is?
MR GAME: Well, the nearest you get to a structure is in this amending legislation in 2003. What I am attempting to do is to explain to you how this division worked as at the time of the offence then, and it is no small or mean exercise, to explain to your Honours how it actually got to that point because what is said against us, in effect, by the ‑ ‑ ‑
KIRBY J: I know that, but normally the human mind goes from the general to the particular down to the minute. I am down there with the minutes, but I do not know how it all fits together, and that is the way the rational mind normally operates, Mr Game. Anyway, you press on. I will just stay down there with the minutiae hoping that I one day see the pattern.
MR GAME: What I am endeavouring to do at this point is to show your Honours what the structure of this legislation was and then show your Honours how it got to be that structure, because if I simply take you from the beginning to the end, then there is not going to be sufficient context to work out – because the whole argument that is put against us is said to be as a matter of statutory construction the offence is an offence without any mental element in respect of the question of age.
Now, our absolutely fundamental argument is that when you get to this legislation as at 2003, the legislation had been overhauled, provisions had been taken out, provisions had been changed, new offences had been created. It was silent on important aspects of mental element. The single question in this case, we submit, is the proper construction of section 66C(3) in that context and that you get very little, as it were, from going back through the exercise and then coming to the conclusion that it is what is described in the cases as a necessary implication that there is no mental element attached to the question of age.
That is the argument that we wish to advance. The Court of Criminal Appeal posed the entire question from beginning to end as to the effect of the repeal of section 77(2). In our submission, that is not the appropriate approach. It is a question, but it is not the question that has to be determined when construing these provisions.
CRENNAN J: Just in relation to section 77(2), do you agree or disagree with the starting point of the respondent’s submission in 5.1 in which it is said that the statutory defence under section 77(2), which had been in place for 93 years, displaced the common law defence. Do you agree with that proposition?
MR GAME: In respect of the offences to which it applied, yes, your Honour, but when you look at the legislation in – and a similar position, of course, pertained in the United Kingdom because they had similar legislation which was repealed and they had similar questions.
CRENNAN J: Have you had a look at section 30(1)(a) of the Interpretation Act in the context of the displacement of the common law defence for some 93 years?
MR GAME: Yes, your Honour. What we say about that is that it is not as if the section 77(2) spoke to what might be described as the entire common law of determining the mental element of crime. The mental element of crime is what lies behind the consideration in this case.
CRENNAN J: But I was asking the question just in terms of you accepting that the statutory defence displaced the common law defence of mistake of age in respect of the offences to which it applied.
MR GAME: The offences to which it applied, yes.
KIRBY J: But only in offences against female victims.
MR GAME: Yes. It did not include the whole separate part which related to homosexual offences, for example, which had, in effect, a provision that was parallel to the repeal of section 77(2), and I will explain that in due course ‑ ‑ ‑
GUMMOW J: When you talk to us about common law defences, common law elements and this, that and the other, what are you talking about? We are construing a statute. Are you talking about what has been built up in the case law as judicial interpretation, some canon of construction?
MR GAME: I am talking about ‑ ‑ ‑
GUMMOW J: These are statutory offences.
MR GAME: I know, your Honour. We are talking about the proper construction of truly criminal offences which are silent as to the question of their mental element. The principles of construction that I am talking about are principles of construction which at latest were established or set out in He Kaw Teh, particularly in the judgment of Justice Brennan. It is those canons of construction that I am referring to. It is those same canons of construction which were applied with some specificity by the House of Lords in B v DPP.
As to an origin for those canons of construction, one finds their origin in Tolson and Tolson speaks specifically to the fact that statutory crimes do not define their mental elements. One has to work out what they are. Glanville Williams, it would appear, defined crimes in terms of conduct, consequence and circumstance. Those ideas were taken up in He Kaw Teh. Those are the ideas that I am talking about when one talks about construction of penal statutes ‑ ‑ ‑
KIEFEL J: You are talking about a presumption, Mr Game.
MR GAME: Yes, your Honour, and I am talking about how you – when you look at an element of a statutory criminal offence which is not fully codified, that is to say, does not define – does not give its mental elements in respect of all aspects of the offences, which is what we are talking about here, those are the kinds that I am talking about of construction, and they are specifically spelt out in the judgment of Justice Brennan in He Kaw Teh. Perhaps if I could take your Honours to one particular passage in He Kaw Teh at this point ‑ ‑ ‑
KIRBY J: This is the text of your whole sermon to us, is it? You were starting with Justice Brennan’s statement that these are offences and there is a particular way that you look at offences in statutes?
MR GAME: Yes, your Honour.
KIRBY J: Did the House of Lords refer to He Kaw Teh?
MR GAME: Yes, your Honour. But can I just say the mental element that they speak of is belief without an honest requirement of honesty. Now, if one looks briefly at page 568, we see that long passage beginning “Moral excuses”:
to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done -
Now, the reason why – I am sorry that I did not give maybe a straight answer to your Honour the Chief Justice’s question to me this morning, but that is what I have mind, is what do you say when you are looking at a circumstance in – is one talking about honest and reasonable mistake of fact, or is one speaking of something more. The other thing I had in mind is that the House of Lords decided that it was something more. Now, then one goes to page 571 and we see the paragraph that begins ‑ ‑ ‑
GUMMOW J: I think you have to start at 565 actually about line 10:
When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied -
Is that not the starting idea?
MR GAME: Yes, your Honour. Now, there was a passage at 571 in the long paragraph beginning “Analysis of the external elements of an offence” and that is about intoxication. But then may I take your Honours to page 573. We see the reference:
The “defence” of an honest and reasonable –
mistake –
first, can it apply to circumstances that, on a proper construction of the statute creating an offence, are an integral part of the act involved?
Now, then in the following passage we see his Honour stating that the burden is on the Crown beyond reasonable doubt. Page 575, one sees what we would describe as the critical issue in construction, which is, is the circumstance an integral part of the offence or is it merely attendant on the occurrence, which is at about 10 lines down “A mental state less than”. Then the whole thing is pulled together at page 582, and it is those four propositions that are, as it were, at the heart of the exercise.
KIRBY J: Which of those propositions was included in Proudman v Dayman? All of them?
MR GAME: No. Proudman v Dayman was a so‑called regulatory offence. But Justice Dixon’s judgment, in effect, came to be applied at latest by the time of He Kaw Teh, but there are other cases – and I have referred to one in the list, a decision of Chief Justice Bray in a case called Mayer v Marchant. There is no need to read it, but in the mid‑1970s his Honour Chief Justice Bray treated this as a concluded question with respect to honest and reasonable mistake of fact with the onus on the crown. That was well in advance of He Kaw Teh.
Justice Dawson’s judgment is very much to the same effect as Justice Brennan’s judgment. Those principles have one acceptance in interpretation of statutes in the approach that legislatures have gone to creating offences, including regulatory offences and they find their way into the Criminal Code (Cth).
GLEESON CJ: If I could return to the question I asked you and apply it to 66C(3), I take it you are not suggesting that, in a trial for an offence against 66C(3), the prosecution has to prove that the offender knew that the complainant was under the age of 16 years, because if you were suggesting that, the whole of your argument is beside the point. There was not even an attempt at this trial to prove that.
MR GAME: My argument is de minimis. My argument is that one thing is clear – that there is no necessary intendment that excludes a minimal mental element.
GLEESON CJ: I understand that argument but may we also proceed on the basis that another thing that is clear is that, at a prosecution for an offence under 66C(3) – and I am not suggesting this concludes or even advances the argument in the present case, but it is clear, is it not, that the prosecution does not have to establish that the accused knew that the complainant was under the age of 16?
MR GAME: Quite, your Honour.
GLEESON CJ: Because if that had been the case, this entire trial miscarried, obviously.
MR GAME: Quite, your Honour. Can I say this. This may sound pejorative, but that kind of reasoning was a reason that was given in Prince ‑ ‑ ‑
GLEESON CJ: It was not reasoning at all. It was a question about the construction of 66C(3).
MR GAME: Yes, I know. I am just saying that, by the time of Tolson the idea that knowledge is to be construed in that narrow sense of “knew as a fact” had been rejected. The ideas behind Prince had really already gone by the time of Tolson, which is only 10 years later. The answer to your Honour’s question is yes, I agree.
KIRBY J: Just pause there, please. If the accused puts in issue, as your client did, as I understand it, at the trial by saying that the prosecutrix had told him her age at some earlier time, then why is it not, upon your theory, upon the prosecutor, to establish that he believed the complainant to be over the age?
MR GAME: Your Honour has used the word “belief”. That is the word the House of Lords used in those two cases, in effect distinguishing it from, in effect, belief in the Proudman v Dayman sense but without a requirement as to reasonableness, and that was rejected. So belief is different in this context than knowledge in the sense that I understood the Chief Justice was putting.
KIRBY J: At some stage, in elaboration of the answer you just gave, would you indicate what you say the trial judge ought to have told the jury on this matter so that we can, as it were, test it by the proposition of what the jury would be instructed is the law?
MR GAME: Yes, your Honour. Now, in Reprint 20 – again, this is to, as it were, put in the frame of the statutory context – section 61H is the definition of “sexual intercourse”. That definition of “sexual intercourse”, we will see, has expanded over time and critically sexual intercourse had come to cover both homosexual and heterosexual offences. That was brought about by this Act. Sexual intercourse had become gender neutral, but the specific definition for “sexual intercourse” in homosexual intercourse offences had gone.
KIRBY J: Where do we find that?
MR GAME: I will come back to that, but I have to explain – now, then we have the sexual assault offences, which are sections 61I, 61J and following. One of the offences we were charged with was section 61J(1). The aggravating circumstance that was relied upon was that the victim was under the age of 16, which is subsection (2)(d). Now, as you will see, each of those circumstances is integral and it would be an odd thing if, subject to the statutory issue about what section 77(2) did or did not do, in the absence of a provision like section 77(2), it would be odd if subsection (d) was dealt with in a quite different way than the other sub-provisions in those aggravating circumstances.
GLEESON CJ: Mr Game, this does not, I think, bear on the argument, but just to help me understand the statutory pattern, I am thinking about alternative verdicts or alternative charges.
MR GAME: Yes.
GLEESON CJ: What happens in the case of someone who is charged with an offence under 66C(1) and says, on your theory reasonably, “I believed the child was 15”, in other words, raises an argument, if I can use that expression, which takes the case out of (1) and puts it in (3). How is that handled in terms of charging or verdicts?
MR GAME: Your Honour, section 66D provides alternatives, but those alternatives do not cover the full field of alternatives, so that they do not cover the field of all alternatives with respect to attempts, but you could be guilty of the attempt offence (a), and (b) as I said before, even if you applied Morgan reasoning, it would hardly be likely that you were not reckless as to the issue of age. It is very, very unlikely that a person would be in a position where they could ever get themselves out of a statutory provision by raising that, but the third reason is the reason that I gave to Justice Kiefel, which is that Justice Howie cited a number of cases which said that you can only raise honest and reasonable mistake of fact if that would make you innocent of any offence at all.
HEYDON J: Is not the answer to the Chief Justice’s question to be found in section 66E(1B)?
MR GAME: I am just being told it is. Yes, your Honour.
GLEESON CJ: Just a minute. That covers objective facts about what age was, but how does it cover mistaken belief about what age was?
MR GAME: That is true, your Honour, but it goes back to the points that I was making before.
GLEESON CJ: Does the fact that 66E provides for objective facts but does not provide for mistaken beliefs throw any light on the issue of construction of 66C with which we are concerned?
MR GAME: No, your Honour, because – and this is one of the – a statutory provision quite like this was considered in B and K in United Kingdom. But “under the age of” itself raises an issue that it is a circumstance and the question is, do you apply Proudman v Dayman to that circumstance? Or, if you apply Banditt, Morgan‑type recklessness, were you reckless in the sense were you rash as to that issue? So it still brings in the same question of statutory construction.
If I could just mention 61L in this group of provisions, that is indecent assault. But then we go 61M which is indecent assault in circumstances of aggravation. This is a provision to which section 71 applies, so consent is no defence if the person is under the age of 16. So then when we come to subsection (3) you see aggravating circumstances and, we would submit, because there are aggravating circumstances some mental element attaches to them and (b) is under the age of 16.
So if the person, on our construction of the Act, was under an honest and reasonable mistake of fact as to that issue, then they would have a defence to an offence under section 61M. That is precisely – I say precisely – that is very similar to the House of Lords decision in the provision considered in R v K [2002] 1 AC 462.
HEYDON J: Why exactly do you submit, as you have now twice, that the existence of circumstances of aggravation points to a mental element?
MR GAME: Your Honour, because they are integral to the commission of this offence.
HEYDON J: Is it not possible to regard each of these as simply an objective fact which carries consequences for the crime but it does not necessarily point to knowledge of them? It means, in a sense, the accused or citizens or members of the public have to be more careful when they are dealing with people.
MR GAME: Your Honour, the trouble with these offences is they cover all people, including children and adults. Now, if I am wrong about this, then there is still a separate argument in respect of section 66C(1) to (3), which is that they make age so integral that there must be a mental element attaching to it. But, your Honour, my submission is that the proper construction of subsections (3)(a) to (e) ‑ ‑ ‑
KIRBY J: This is of which section?
MR GAME: Section 61M - would enable a person or would require the Crown to refute a defence to honest and reasonable mistake of fact. If one was mistaken about the issue of serious intellectual disability and one had an honest and reasonable reason for saying so, it would be unusual and it would not be in accordance, in our submission, with the kinds of principles enunciated by Justice Brennan in He Kaw Teh to have no mental element or no ability to raise a defence of honest and reasonable mistake of fact.
KIRBY J: Could it be said that by listing these circumstances of aggravation, Parliament has provided for the mental element in the way in which it considers is appropriate and sufficient?
MR GAME: If that is so, your Honour, then when you went back to section 66C, you would see that they have taken the circumstance of aggravation out of the list and placed it within the offence.
GLEESON CJ: But they have done something even more complicating. They have divided the circumstances of aggravation. It is rather clearer if you go back and begin with 66A and look at age from, as it were, birth up. You have a series of different relevant ages in circumstances where it is at least possible that a person might have a reasonable and honest belief about age that does not make the conduct innocent, but would, if true, take the conduct out of one of the age categories and put it in another of the age categories.
MR GAME: All that one is talking about in this context is whether or not the person would be liable for the, shall I say, 25‑year sentence or the next one down.
GLEESON CJ: My question is what do you convict the person of who has an honest and reasonable belief that it is in a different category from the objective category?
MR GAME: My argument is you convict of the category that he believes, if I can put it in a crude way. The category he believes he is in is the category that he is guilty of attempting to commit.
HAYNE J: Does that not throw up the point of principle that your submissions need to address. That point of principle might be identified in two, perhaps more than two steps. Begin with Proudman v Dayman - if you go to 67 CLR 536, but particularly at 540 and following. We always look at Proudman v Dayman for regulatory offences, I understand that. But Justice Dixon at 540 is talking about the general propositions of statutory construction, is he not?
MR GAME: Yes, your Honour.
HAYNE J: In particular, he begins in the first paragraph commencing on 540 and following to look at how you construe a statute that is adding either a new crime to the general criminal law or what might be called a regulatory offence. If you come down to the foot of 540:
There may be no longer any presumption that mens rea, in the sense of a specific state of mind . . . is an ingredient in an offence created by a modern statute -
Now, pausing there. We are agreed so far in your argument, are we not, that the specific state of mind of “motive, intention, knowledge or advertence” is not required in respect of 66C?
MR GAME: Yes, your Honour.
HAYNE J: We then go back, do we not, as Justice Dixon mentions in Proudman v Dayman, at the head of 541, to his earlier judgment in Thomas which I think the parties have not referred to, Thomas v The King 59 CLR 279, it is a bigamy case. What I have in mind especially appears at 309 in the judgment of Justice Dixon. Now, you will not, I suspect, have this before you.
MR GAME: I have it, your Honour.
HAYNE J: You do? At about point 7 of the page his Honour refers to the distortion of the law that may have occurred through judicial unwillingness to trust the jury, especially in relation to matters where it is the accused’s state of mind that is in issue and it is the accused and only the accused who gives direct evidence of it, and there has been a marked judicial reluctance to trust juries to assess that assertion. But the root principle seems to be that his Honour is endorsing at about point 8:
It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal . . . can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.
That, his Honour explains as whether the accused is to be:
permitted to exculpate himself by showing that on reasonable grounds he mistakenly believed in facts, which, if true –
in this case –
would make his earlier marriage void -
But the root principle, which his Honour seems to be articulating there, is that although a specific state of mind need not be established, see Proudman v Dayman, reasonable grounds for believing, albeit mistakenly, in a state of facts which would make the conduct innocent is a separate field for inquiry. In Proudman v Dayman it yielded the particular result in relation to regulatory offences, but the moment you go down the path of saying, “I believed the complainant was 11”, when in truth the complainant was nine, “therefore I am guilty of the over‑10‑year‑old offence”, are you not departing from what seems to be the basal principle?
MR GAME: Well, your Honour, yes, and that ‑ ‑ ‑
HAYNE J: Do you not stand or fall, therefore, on the proposition that the field for debate is reasonable grounds for believing, albeit mistakenly, in facts which if true would make the conduct innocent, and whether that conception is now excluded from consideration on the proper construction of this Act?
MR GAME: Yes, your Honour, but if I understand you correctly, what that means is that in a practical sense if a person raised, shall I say, or attempted to raise a Proudman v Dayman defence, “I thought she was 11”, there is absolutely no prospect that a jury would treat that as an honest and reasonable mistake.
HAYNE J: Yes, and there are equal difficulties with accused persons saying, “I did not do it, but I believed she was 16”, too, Mr Game. That is confusing the issue. The question is the basic principle that is engaged.
MR GAME: I accept that. May I also say that I think it is that very passage which one of their Lordships commenced their judgment or speech with in one of the two English cases. May I say that, in answering these questions at a basal level about statutory construction, the kind of considerations that the cases suggest are the kind of relevant things to take into account are whether or not it is an attendant circumstance; the seriousness of the penalty; whether or not it is a truly criminal sanction; the difficulty of refuting; absence of reasonable and probable mistake; the wideness of the offence; and any absurd consequences. Those are the actual questions that Courts have asked themselves – this Court has asked itself – in applying those principles in cases addressed to the issue of honest and reasonable mistake of fact.
I was still in Reprint No 20. Section 61R is relevant in one respect because it is a consent provision. In section 61R “consent” now has a wider definition under new legislation. So there is a new and broader provision relating to consent in 2007 behind tag 20. What that means is that, in a practical way, because the 2007 legislation brings into account – and this is behind tag 20 – age or cognitive incapacity, but the kinds of considerations your Honour the Chief Justice raised are very unlikely to arise because in the offence that your Honour spoke of the person would be charged with sexual intercourse without consent. There is no prospect that the issue of consent would be capable of being raised against that person if the victim was 10 or 11. So in effect that lacuna has been closed.
GLEESON CJ: What is the position in relation to incest, where you would have thought – there is some famous literature about various kinds of mistake.
MR GAME: Tolson itself is a case of incest. The husband was believed to be dead, but he was hiding around the corner somewhere.
GLEESON CJ: Incest or bigamy?
MR GAME: I am sorry; that was bigamy.
HAYNE J: There is a slight difference, Mr Game.
MR GAME: I am sorry. My taxonomy of sexual offences is – I am not sure about incest, but I have seen it in here, your Honour. I have picked it up but I cannot see it at the moment. May I then, in this bundle – in this legislation – take your Honours briefly to section 77(2) – section 77 as it stands, at that time. I am sorry, incest is section 78A , I have just noticed. Section 77(1) remains. But in that bundle of offences, remarkably, section 77(1) could only apply to section 61M, N, O and ‑ ‑ ‑
HEYDON J: Are you behind tab 19?
MR GAME: I am behind tab 18. So section 77 ‑ ‑ ‑
HEYDON J: We do not have that, or at least I do not.
KIRBY J: Are you sure it is not behind 16? There is a section 77 behind ‑ ‑ ‑
GLEESON CJ: Behind tab 18 the page at the bottom is 62, is it not?
HEYDON J: I have pages 61 and 63, not 62.
MR GAME: I will just have to keep apologising, I am sorry, but can I say this. Section 77(1) remains, section 72 had been repealed. On my reading of it, section 77(1) could only apply, on my reading of it, to section 61M, N, O and F. A number of the other offences had been repealed and offences such as 66A, B, C and D had no mental element of consent. So it was entirely otiose to say that they did not apply to section 66A, B, C and D because they could not apply. So the argument that is put against us, as it were, that section 77(1), which purports to speak to our offence but does not, excludes a defence of consent, which we do not have, and then by section 77(2) not being there, that proves that we do not have the defence of honest and reasonable mistake of fact even though it is not there and section 77(1) is.
GLEESON CJ: Whether he was right or wrong, and that is what we are here to decide, I think Justice Hodgson thought that what was critical was section 77(2) being repealed.
MR GAME: So that is the statutory context as it exists at the time of this offence. Our primary argument is that when you look at section 66C(3) taken in context, age is an entirely integral part of the offence. It is no offence to have sexual intercourse. So that there is no act, there is no other act that is criminal. The act is the act of having sexual intercourse with someone with the age of 14. So that applying Justice Brennan’s reasoning, there would have to be very powerful reasons to exclude honest and reasonable mistake of fact as to that issue.
GUMMOW J: You assume that Justice Brennan’s reasoning is pellucid. I am not sure I understand what proposition 2 really means on page 582. What is an external element?
MR GAME: External elements are all the things that happen physically.
GUMMOW J: Physically. How does 2 square with Thomas? I notice Justice Brennan set out at 580 part of the passage of Thomas I think which Justice Hayne took you to, the passage in Thomas at 309. What I suppose I am putting to you is that I think there is some difficulty in construing what is said on page 582 of that Customs case as a canon of statutory construction itself.
MR GAME: External elements means no more than what has long been described as the actus reus of an offence.
GUMMOW J: Is (2)(b) Thomas?
MR GAME: Yes, your Honour.
GUMMOW J: What is (a) objecting to, the formulation as an alternative?
MR GAME: His Honour had already acknowledged the seminal position of Morgan in theory about mental states in crime and absence of consent in this way of looking at crime is a circumstance so that knowledge – his Honour is referring to the possibility of knowledge or recklessness, I think, in respect of (a). He is talking about truly criminal conduct where you have a circumstance which is, shall I say, integral.
Now, there may be circumstances and there may be consequences, more likely consequences, in respect of which you require a specific intent, because they are with intent to do X, Y or Z. That is a different kind of offence. But, in my submission, there are no other tools to bring to this exercise than these tools of breaking up elements, seeing what they are, and determining with the kind of ideas which I have put which I have taken really from He Kaw Teh, determining whether or not Parliament really intended to exclude that possibility, namely that a person could raise an honest and reasonable mistake of fact.
GUMMOW J: What is the significance of proposition 3? What is the purpose of these sections you have been taking us to in the Crimes Act? They are gradation of a sentence connected to age of complainant?
MR GAME: Your Honour, my answer to that would be – and it is the answer that the House of Lords gave in these two cases – that age does not sit in a special place in canons of statutory construction. I do not know of any other tools than these tools to determine this question. But what 3 is saying, as I understand it, is that in truly criminal conduct the state of mind of knowledge is more likely to be the state of mind attaching to circumstances.
May I add this? It appears to be accepted that when one looks at a statute like this, and we are talking about the, shall I say, exclusion of a defence of honest and reasonable mistake, if it is not express, it has to be a necessary implication. Our argument is it is not a necessary implication at all in the construction of these provisions to have a defence of honest and reasonable mistake. That is how the test is framed and that is the question.
KIRBY J: Where is that principle stated?
MR GAME: Can I come to that? It is spelt out in the two English cases which I will take your Honours to and it was accepted by Justice Howie. If I can do it straightaway now, if I could take your Honours to B v DPP [2000] 2 AC in the speech of Lord Nicholls at 464, top of the page:
“Necessary implication” connotes an implication which is compellingly clear.
Then in the speech of Lord Hutton at 481G:
whether it is a necessary implication.
Now, your Honours, I wanted briefly to draw your attention to without reading from Justice Dawson’s judgment in He Kaw Teh because the ideas are succinctly put and precisely along the same lines, as I would understand it, expressed by Justice Brennan, and may I simply just refer your Honours to ‑ ‑ ‑
KIRBY J: Well, Lord Mackay of Clashfern says it at 459 in his very brief speech.
MR GAME: Yes, your Honour. So I will not read from them, but on pages 591 to 592, and then at 594 to 595 his Honour has said, as I would see it, the same as Justice Brennan has said at more length. Now, your Honours, where I wanted to take the Court to now was to – and I will attempt to do it as briefly as I can – put your Honours in the picture as to how this legislative labyrinth, perhaps it might be called, came into existence. Your Honours, may I go back to the statutory ‑ ‑ ‑
KIRBY J: Did you say that one of their Lordships referred to He Kaw Teh?
MR GAME: They did, your Honour. I am sorry, they did not, but it is ‑ ‑ ‑
GLEESON CJ: It was referred to in argument.
MR GAME: It was referred to in argument. Before parting from those cases I would just say this though, that Justice Howie attempted to distinguish both of those cases, but when one looks at the statutory context in England and one looks at the statutory provisions under consideration, in our submission, they provide powerful reasons why there must be some mental element attaching to those offences.
GLEESON CJ: I notice that on page 460 at letter D, Lord Nicholls used as the expression that would describe the situation “if honest belief were irrelevant as one of strict liability”.
MR GAME: Yes, your Honour. I should add, there are other – your Honours are no doubt aware of them – areas in the criminal law where these principles have been taken up centrally. For example, Jiminez is a case about culpable driving, so, too, in the reconsideration of self‑defence and excessive self‑defence by this Court in Zecevic. In relation to Viro one of the important stepping stones was the developments that had occurred in relation to honest and reasonable mistake of fact, and the way in which that had been construed in He Kaw Teh as a justification for abandoning Viro reasoning, so it has permeated a number of other aspects of the criminal law in this ‑ ‑ ‑
GLEESON CJ: We had to look at this issue of honest and reasonable mistake in a case of Ostrowski, I think it was, the Western Australian ‑ ‑ ‑
MR GAME: Ostrowski v Palmer, yes. That was a regulatory type of offence, yes, your Honour. I am sure your Honour appreciated this, but the English cases, when they talk about necessary intendment they are also saying that there is no necessary intendment that the quality of reasonableness has to be brought to the belief. That is considered closely. That is, as I say, one of the reasons I have had - answering your Honour the Chief Justice’s question straight, but it may be that the answer in the Australian context is that we have a highly developed set of principles with respect to honest and reasonable mistake and therefore that can be inferred as a necessary intendment, as it were, that there be a quality of reasonableness that attaches to it.
GLEESON CJ: Is the English law on that subject different from ours?
MR GAME: Yes, your Honour. In formal terms they do not have, even though Tolson is the case, honest and reasonable mistake of fact. But they do ‑ ‑ ‑
GLEESON CJ: They do not have Proudman v Dayman.
MR GAME: They do not have Proudman v Dayman. They have mistake. So that is the different, shall I say, common law and statutory context. Now, as I say, the main argument or the central argument that is put against us is the context within which this legislation was passed. As I said, our argument is offences went, new offences were created. This is not a section 31 of the Interpretation Act situation. This is a situation where you have to determine what the mental elements are attaching to particular physical or external elements that are described in the legislation. Now, if we go behind tag 1A, we see section ‑ ‑ ‑
GUMMOW J: Have you left the English cases now, Mr Game?
MR GAME: I have, your Honour. Should I answer a question?
GUMMOW J: I was just wondering, do you want to say anything about R v K, that is all?
MR GAME: Yes, your Honour. I had not intended to, but I will. R v K is a case ‑ ‑ ‑
GUMMOW J: [2002] 1 AC 462.
MR GAME: This is an indecent assault case. So that is actually a case with the same elements as one of the offences that I took your Honours to. Something I did not mention is that these cases systematically disapprove the decision in Prince and they give principled reasons for doing so. Perhaps if I could just in R v K refer you to page 469.
GUMMOW J: Is this in Lord Bingham?
MR GAME: Yes, your Honour. We see in Lord Bingham at page 469 he describes the drafting of the section 77(2) equivalent that came into our legislation as “slipshod drafting”. That is at C. So to say that the statutory context is not really quite the whole story, they did have it and it went. Then page 474 towards the conclusion of his speech, paragraph 21:
There is nothing in the language of this statute which justifies, as a matter of necessary implication, the conclusion that Parliament must have intended to exclude this ingredient of mens rea in section 14 ‑ ‑ ‑
GLEESON CJ: That means that, on the construction they gave of the English statute, the prosecution is required to prove that there was no genuine belief on the part of the accused that the complainant was 16.
MR GAME: That is correct, provided – the answer to the question is at little paragraph (2) at the bottom of that page:
While a defendant’s belief need not be reasonable provided it is honest and genuine, the reasonableness or unreasonableness of the belief is by no means irrelevant.
GLEESON CJ: So you do not contend for the same conclusion in New South Wales as was reached here, but you contend that the principle by which the English conclusion was reached applies subject to Proudman v Dayman, as it were, in New South Wales?
MR GAME: Yes, your Honour, and the justification for that is that we have a developed acceptance of honest and reasonable mistake of fact, whereas the English have only mistake. So it would be reasonable to infer an element of reasonableness to the defence; yes. I wanted at this point to return to the ‑ ‑ ‑
KIRBY J: Does Justice Brennan examine this nuance of difference between the way we develop because of Proudman v Dayman and the way the English have developed their approach to these issues, or is that explored any anywhere in the Australian cases so that it can be explained?
MR GAME: I cannot answer that question, your Honour.
KIRBY J: It may be that it is explained in one of the textbooks on criminal law.
MR GAME: I hope I can answer that question, or Mr Haesler might be able to answer it in reply. I will come back to that.
HAYNE J: I think if there is a footing to be found for it, again you go back to Thomas, and you find the notion of reason or reasonable bases injected, in effect, in answer to the judicial distrust of juries – that it is not simply enough to have the jury pass upon whether the accused says A or B; there has to be some reasonable basis for it. The compromise achieved is that, rather than the outcome achieved in Britain.
MR GAME: Yes, your Honour. I have a feeling that it is discussed in one or more of the Australian cases. I will have to check on that, if that is possible. I wanted to now take your Honours briefly through this legislative history. I will attempt to do it as briefly as possible. Behind tag 1a one has the 1883 legislation. Section 42 – the provisions were taken holus bolus from the Offences against the Person Act 1861. The last sentence in section 42, I do not have the answer to the reason why that was there, because carnal knowledge was never an offence to which consent was a defence. In 1b, in Stephen’s commentary at page 20 there is a short comment on it. So at page 20 there is the short commentary.
Then, your Honours, we go behind tag 2 to the 1910 legislation and on the second page of it you will see:
or that the person so charged had reasonable cause to believe that she was of or above the age of sixteen ‑ ‑ ‑
GLEESON CJ: Whereabouts is this?
MR GAME: It is behind tag 3a, top of the second page. We saw a short time ago that the provision in very similar terms to that was the provision that was criticised by Lord Bingham in R v K.
GLEESON CJ: What if you had reasonable cause to believe it, but did not believe it?
MR GAME: Was not honest.
KIRBY J: Where is that defence?
MR GAME: Sorry, if I am giving your Honours the chronology ‑ ‑ ‑
KIRBY J: I realise that and I am on ‑ ‑ ‑
MR GAME: No, no, I said “if”.
KIRBY J: - - - the second page of the 1900 Act as originally enacted.
MR GAME: The 1900 Act, the original provision was section 42. Time wise Prince came in 1875 and Tolson came in 1889. Then we have, as I said, the 1910 legislation which is behind tag 3a.
KIRBY J: You say it was 42 in the 1900 Act?
MR GAME: Yes, your Honour.
KIRBY J: I do not have that. My copy of the Act starts at section 58. Perhaps that can just be photocopied and sent in to us.
MR GAME: Yes, your Honour.
KIRBY J: You cannot be expected to check every page of all of these books. Somebody should.
MR GAME: I am sorry again. Tag 3a is the 1910 legislation. If you look behind 3b the date on that is 1920 and you will see on page 47 that is the form of the legislation after 1911. You see the part in italics “and consented to the commission of the alleged offence”, that was brought in by the 1911 legislation. So consent is no defence to this offence, but it is a defence if you entertain a belief – sorry, here if the person is a prostitute or you had reasonable cause to believe. So that is the position as at 1911. If you turn over the page to page 48 you will see in the commentary “Consents”:
This was no defence to the section as it originally stood, but only became so under the terms of the proviso.
Then, your Honours, we see behind tag 4 the 1911 legislation with a change as to age. Then we come behind tag 5 to the 1924 legislation and we see behind tag 5 at page ‑ ‑ ‑
KIRBY J: What was the change made in 1911?
MR GAME: The change made in 1911 was “and she consented” which appeared in ‑ ‑ ‑
KIRBY J: I see. So those italicised words were incorporated in?
MR GAME: Yes, your Honour. Then behind tag 5, as I say, is the 1924 legislation which is section 71 is the offence and then the defence is in section 77. Now, section 77 at this point now has “shall be a sufficient defence” to an offence under section 71 and a few others and they are over 14, consent and reasonable cause and did believe. So either the person was a prostitute or reasonable cause and did believe. That is the 1924 position. By that time that is described, in effect, and Justice Roden described it in the case of Chard v Wallis, as the provision, in effect, that was brought in to meet the thought effect of Prince.
GLEESON CJ: Is that the one that stood for a long time?
MR GAME: Chard v Wallis.
GLEESON CJ: Section 77.
MR GAME: Yes, your Honour. That stood for a long time.
GLEESON CJ: That defence was so well known it even had a name, Mr Game, but that looks to me very much like the way the trial judge in the present case directed the jury.
MR GAME: It is. What he did was he purported to give the common law direction but gave the statutory direction even though he had given a judgment saying he would give the common law direction, but nobody noticed that he had given the wrong direction according to his own judgment.
GLEESON CJ: I just got the impression he had in the back of his mind what was ‑ ‑ ‑
MR GAME: He did, no doubt.
GLEESON CJ: ‑ ‑ ‑ a very well‑known statutory provision.
MR GAME: He did, no doubt, your Honour.
KIRBY J: I think you point this out in your written submissions. What would he have done? Would he have got that out of another book of directions?
MR GAME: He probably got it out of the Bench book in respect of – he might have read it from section 77(2), your Honour. Now, nothing happens for 50 years. We go behind tag 7. If your Honours could just note there, at section 62, in that I have not picked this up before, but section 62, by 1910 I am pretty sure section 62 – I think it was in the 1861 legislation but I will check it, but “carnal knowledge” was defined.
KIRBY J: Where do we find section 62?
MR GAME: Behind tag 7, section 62. It goes right back to the original legislation, I think, but:
“Carnal knowledge” shall, in every case under this Act, be deemed complete upon proof of penetration only.
So that it is clear that a particular Act was had in mind and the particular consequence it was not required. Then we see section 71 and section 77 as they had been. In section 77 at that point, behind tag 7, we see section 77 is gender specific, shall one say. Now, we then go to tag 8 ‑ ‑ ‑
KIRBY J: Is it convenient in this compilation to refer to what was the way in which offences against young boys was dealt with, because these seem to be all the sections of the ‑ ‑ ‑
MR GAME: Yes, what happens is, your Honour, in 1984 we come into that – there is a specific raft of statutory provisions dealing with male offences.
KIRBY J: That is from 1979 onwards.
MR GAME: 1984 introduces homosexual offences.
KIRBY J: Anyway, you will come to that.
MR GAME: Yes, your Honour. A few signposts here - in 1935 there had been Woolmington, in 1941 Proudman v Dayman and in 1976 Morgan.
GLEESON CJ: But offences against males are not necessarily offences by males.
MR GAME: There are no section 71 ‑ ‑ ‑
GLEESON CJ: Most underage, male sexual activity takes place with underage females.
MR GAME: Yes, but there was no carnal knowledge offence relating to males.
GLEESON CJ: Exactly.
MR GAME: So, as I said, the concepts change as one goes along. Carnal knowledge, the act changes, the victim changes and the content of the offence changes.
GLEESON CJ: Yes.
MR GAME: In 1981, new sexual offences were introduced. That is what we see behind tag 8. Now, if you turn behind tag 8, section 61A is the new provision. Section 61A is a new provision defining sexual intercourse, but it does not relate to carnal knowledge. The sexual intercourse section only relates to those specific offences. By the end we will see that the “sexual intercourse” definition relates to everything, including what we have called carnal knowledge.
Now, (a), (b) and (c) mark an extension, but your Honours might note (d) to see just how far the legislation had gone. At common law “continuation of sexual intercourse” was an indecent assault, so if sex was ‑ ‑ ‑
KIRBY J: What are you referring to now?
MR GAME: Section 61A(1)(d), and it is just to give your Honours an example:
the continuation of sexual intercourse –
becomes sexual intercourse. What that means is that that whole category of cases that were treated as indecent assaults have become rape, in effect, under these provisions. So this legislation was designed to provide a modern idea of what sexual assault was. It defined a basic act and then it had a series of aggravating circumstances such as malicious infliction of grievous bodily harm and so forth.
GLEESON CJ: I think that words like “rape” and “carnal knowledge” went out of the ‑ ‑ ‑
MR GAME: They were gone, yes, your Honour. There were some amendments to section 77 but I do not need to trouble you with those at the moment, they appear on page 9. Then behind tag 9 what one sees are the 1984 amendments. They bring into the Act specifically homosexual offences. They were brought in in a time of controversy in relation to homosexual acts between consenting homosexuals over a particular age. Now, section 78G introduced a special definition for “homosexual intercourse”. That definition and all of those offences are abolished by the 2003 legislation that we are concerned with in this case.
The provision that I wanted to take your Honours to is section 78Q. Section 78Q is the provision considered by Justice Roden in Chard v Wallis. There is no need to read from it, but in Justice Roden’s judgment in Chard v Wallis, which was in 1988, his Honour held that the defence of “honest and reasonable mistake of fact” applied to an offence under section 78Q(1), and that the existence of section 77(2) did not provide a sufficient implication to exclude it. That decision remained and was applied for the next 15 years.
The section under consideration in section 78Q bears a close analogy to the offence under consideration in B v DPP, which we have just come from. It is a very similarly framed section. Notably in this - so if the argument against us – sorry, section 78Q. Now, one sees in section 78R that the consent of a male is not a defence under section 78Q, so the effect of the judgment of Justice Roden is that belief as to age, an honest and reasonably held belief will provide a defence.
In terms of the argument I am putting, the interesting thing there is that when one sees the legislation in its current form it has a close analogy to the structure of 78R, referring back to those other offences, because it has the no consent provision – it does not have the section 77(2). Behind tag 10, one sees in page 6 that now ‑ ‑ ‑
GLEESON CJ: I am afraid I have missed somewhere along the line where that section 77 defence became 77(2).
MR GAME: Behind tag 7 – there is no subsection (2).
KIRBY J: It is not a subsection, is it? It is a proviso.
MR GAME: It is a proviso, yes.
GLEESON CJ: Somewhere it became subsection (2) because it was repealed as subsection (2).
MR GAME: I think it is yet to come, your Honour.
GLEESON CJ: I see.
KIRBY J: It is a pleasure in store in this.
CRENNAN J: But there are earlier forms of it, are there not? For example, it goes back to the 1910 Act, section 2.
MR GAME: Yes, your Honour, 1924 is the closest form of it as it stood for the next 50 years. Tab 10, 1985 - behind tab 10 one sees that section 61 – the definition of “sexual intercourse” is now extended to what we have been calling “carnal knowledge”. That is because you see in subsection – on Schedule 2 section (1)(a) now says “sections 61A‑66E”. So now the act has changed. The act is now any act of sexual intercourse. In the same legislation we see ‑ ‑ ‑
KIRBY J: What was the effect of that amendment?
MR GAME: The effect of that was that carnal knowledge could be committed by any of the acts that we saw in the extended definition of “sexual intercourse” that came in in 1981. We then go to page 9 of that Act.
HAYNE J: Sorry, I have not yet caught up with the – what has taken section 77 out? It was, at this stage, I thought still 77.
MR GAME: It is still section 77.
HAYNE J: So what brings 77 under the purview of sexual intercourse?
MR GAME: Section 71. I will just explain that. When you look at 61A under Schedule 2, it says:
From subsection (1), omit “this section ‑ ‑ ‑
and then it says:
insert instead “sections 61A‑61E”.
This offence will be within that group, we will see in a minute, because section 71 is repealed by this Act. Then if you go to page 9 you see the new offences – 66A, B and C. It is at this point that section 71 is repealed. That is on page 11. Then one sees under section 77 – this may answer your Honour the Chief Justice’s question - we now have subsections (1) and (2) and the definition has changed slightly. The purview of the offences has extended. Subsection (2) picks up section 66C but it also contains the words “are not both male”.
Justice Roden in Chard v Wallis concluded that that was not sufficient to exclude in the separate section 78Q “honest and reasonable mistake of fact”. That is one of the things that Justice Hodgson specifically disagreed about.
So that is the 77(2) as it existed at that time. Then tag 11 introduces behind page 14 that specific defence under section 66F that I referred to and I took your Honour the Chief Justice in answer to a question to subsection (5) as an example of a case where there is a specific mental element included.
Then one sees the reprint as 1 December1987 behind tag 12 and one sees that section 77 is still in place and so too are all the homosexual offences including the definition of “homosexual intercourse” at 78G. So there is a raft of other provisions which go with the 2003 legislation, and 78Q is still there.
KIRBY J: Was section 77 amended by this 1987 Act?
MR GAME: Not this, no. This is merely a reprint but there was a minor amendment in the last one that I took you to which said and “are not both male”. Then behind tag 13, 61R might just be noted there. It is belatedly picking up what was already the law if Morgan was correct and Morgan had already been applied in New South Wales before section 61R came along anyway, but consent is extended there. Then we have tag 14 ‑ ‑ ‑
KIRBY J: Is that where 61R is inserted for the first time?
MR GAME: Yes, your Honour, that is the first time, yes. Behind tag 14 are minor amendments including minor amendments to section 77. There is no need to deal with that one. Then there is an amendment behind tag 15 which under clause [2], section 77 “over the age of 14 years” has become “of or above the age of 14 years”. I do not know why that was necessary but that occurred. So that is tag 15.
Then tag 16 is the consolidated Reprint No 19. Still has the offences in place as we have seen. I do not need to go to that. Then we go to tag 17 and that is the amending legislation which, in effect, brought about the Act that is the subject of this case. So a new section 66C and that is one of the matters that we obviously rely on saying they are new offences. Under Schedule 1, clause [18], all of the homosexual offences have gone and under clause [14] section 77(2) has gone.
That then brings one to the position as it applied at the time of this offence. Then there is only one further legislative change that I wanted to draw your Honours’ attention to. I mentioned before, and it is behind tag 20, if there was a lacuna in relation to non‑consent, the aggravated sexual intercourse without consent, section 61HA(4) introduced in November 2007 means that any of those examples about having sexual intercourse with a child of 10 or 11 would come to be dealt with as sexual intercourse without consent and the question of age would not facilitate any different position.
GLEESON CJ: I hope I do not appear to be obsessed with this subject, but section 78A which followed the repeal of 77(2), what is the mental element there, bearing in mind that I say that it is a classic area of potential error?
MR GAME: Absence of reasonable and probable - mistake would be the only defence to that. Mistake would also be as to whether or not there are family members – actually, some examples are being fed to me by my juniors, but mistake as to being a relation with IVF and so forth might even be an issue. That would be honest and reasonable mistake of fact as well, in our construction of these provisions. That is, as it were, the legislation and then ‑ ‑ ‑
HEYDON J: Is there not a specific defence?
MR GAME: Sorry?
HEYDON J: Section 78C gives a specific defence. This is behind tab 19, page 58.
MR GAME: Yes, your Honour. The onus of that is on the Crown, it would seem. So there is no provision that makes the onus on the accused with respect to that. So onus would be on the Crown to disprove that, would be my submission about section 78C.
HEYDON J:
(1) It shall be a sufficient defence –
Does that not rather suggest the defendant has to prove it? But it may not matter much to your ultimate argument.
MR GAME: Your Honour, in another area of discourse there are things that look like defences that are not, and I have in mind here negative elements, for example, making a non-excluded offer of securities without a prospectus. It is something that, although it says “not excluded”, the Crown has to disprove it because it is integral to the offence and I would argue that similar sorts of reasoning would apply to this. That is to say, the Crown has to go through every single regulation to prove that that offer was not an excluded one as an element of the proof in the case.
I apologise if my argument is wanting, but what I have endeavoured to do, going through these provisions, is to bring your Honours to a position whereby, as it were, so much had changed by 2003 - and there was no question at all that the common law relating to determination of mental element had been excluded, because the provisions require one to work it out so that this is not a section 31 of the Interpretation Act situation.
In my submission, using the canons that I have referred to, for example, that it is truly criminal conduct, that one has a liability for imprisonment for 10 years ‑ and what that means is this. If a person and the critical, biting part of this case or this question of statutory interpretation is that if person A misleads person B about age, then person B has no defence when one comes to the critical age of 16. That is where the issue bites in this case. We would submit there is nothing in this legislation taken together that excludes that proposition.
We have also referred to one other matter, which I will just touch on, which is that a conviction for this offence makes this appellant, although he was not an adult, if he is convicted, which he was, although the sentence appeal has been upheld and it has gone back to the District Court, he gets put on a sex offenders’ register for seven and a half years and has to do a whole series of things. So that, as it were, a purely - an unblameworthy act, namely, having sexual intercourse under the reasonable state of belief can make a person so exposed.
Now, it is said against us that a judge could impose no conviction. Those kind of considerations were considered and put to one side in the English cases. It cannot be in answer to a question of statutory interpretation of a penal provision that the court can, as it were, deal with the case leniently when it comes to sentence.
KIRBY J: There was an appeal against the sentence. Who brought that appeal?
MR GAME: Mr M brought the appeal against sentence. The appeal was upheld on the basis that the judge had failed to have regard to the children’s sentencing legislation. He gave him a conviction and some nominal sentence, suspended sentence, but it was a conviction. So he would have gone – that would have gone on the sex offenders’ register.
KIRBY J: That aspect was upheld by the Court of Appeal and he was sent back to the District Court to be resentenced.
MR GAME: Yes, your Honour, and that has not yet been dealt with.
KIRBY J: There is no appeal to this Court against that?
MR GAME: His conviction means he is still on the register.
GLEESON CJ: What happened at the trial about this direction that the trial judge gave the jury which is, I must say, seems to have been a direction under section 77(2)? Was that the subject of any complaint?
MR GAME: No. Can I take your Honours through that small set of events now. Can I just give your Honours some dates. The complainant’s date of birth is 29 March 1989. The offence was committed on 24 October 2004, so she would have been 15 and a half at the time. His date of birth was 19 August 1987, so he would have been 17 years three months, and two references for that are to be found at pages 554 and 361 of the appeal book. Again, I am answering your Honour’s question but I will just give you this information on the way to answering it.
His case on age is to be found set out in the summing‑up at 561 to 562 and in his answers 24, 25 and 53, which can be found at page 365 and following of the appeal book. Now, the complainant gave no evidence about his knowledge of her age because of, as it were, the vagueness of that evidence. That is at page 32 – no need to go to it, there was a voir dire about it, and the evidence did not come in, and that is – the Crown did not press it at page 44.
KIRBY J: What was his evidence? That was the ERISP, was it?
MR GAME: His evidence was the ERISP, yes.
KIRBY J: What page was that?
MR GAME: The evidence was not pressed of her evidence about the age, that is at 44. His evidence about her age is set out at appeal book 561 to 562, and record of interview answers 24, 25 and 53. Now, may I give your Honours a couple of pages about her evidence about the ages of her friends who were 16 and 17? That is at page 82.
The answer to your Honour the Chief Justice’s question at page 302 to 303 of the appeal book, his Honour gave a judgment on this subject and the effect of that judgment is to be found at page 305 and he accepted that honest and reasonable fact arose and he accepted that the onus was on the Crown to disprove it beyond a reasonable doubt and that can be seen in lines 20 to 40. This may seem opaque, but when you take lines 20 to 30 with the reference to Judge Goldring and Judge Knox, you can see that he is accepting that it is beyond reasonable doubt on the Crown.
HEYDON J: The judgments are referred to on 303, Judge Nicholson, Judge Goldring and Judge Knox.
MR GAME: Yes, your Honour. If you tied it in 303 you would see that that is the – that point is accepting that it is beyond reasonable doubt on the Crown. Now, one goes then to the second appeal book, page 549. Now, this is in the summing‑up. Top of page 549, when his Honour is summing‑up on the section 61J(1) offence of which he was acquitted, the question of age is simply left as an element. There is no reference to state of mind. It does not matter he was acquitted of that offence.
Then when one comes to pages 550 to 551, this is in respect of the defence of honest and reasonable mistake – sorry, no that is not right, page 551 is the defence of honest and reasonable mistake of fact. We see that at 551. So his Honour is speaking of the alternative and that is the line 42 on line 551. So that is the first alternative. Then his Honour says at the top of 552:
The rest of it, the wording, speaks for itself . . . 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 . . . The accused needs only to establish what the accused relies on in this regard to a lower standard of proof than beyond reasonable doubt.
So what that means is that the accused is being required to establish an honest and reasonable mistake of fact to the effect that he believed her age was 16.
GLEESON CJ: Now, your relevant ground of appeal to the Court of Criminal Appeal was that he put the onus in the wrong place and presumably you make that submission also to us.
MR GAME: Yes, your Honour.
GLEESON CJ: Judge Garling referred at page 303 to the fact that one of these three judgments he mentioned were the subject of an appeal to the Court of Criminal Appeal. Did anything come of that?
MR GAME: Nothing came of that case, your Honour.
GLEESON CJ: Thank you.
MR GAME: At the top of page 553 you will see that his Honour refers to, in effect, the second alternative, top of 553. There are a couple of further references, 580 there is a short reference to it and at 587 his Honour reminds the jury of some evidence about this subject. Before parting with this subject, on sentence, at page 609 his Honour sentenced on the basis that this was consensual sexual intercourse between two people.
GLEESON CJ: I must admit, I had thought that the common law position was that if the evidence raised a real question about this matter, the onus was on the prosecution to displace the excuse which is why the word “defence” in this context is often put in inverted commas. Did we say anything about that in Ostrowski v Palmer?
MR GAME: I am not sure. I have not brought it into Court but, your Honour, Jiminez and He Kaw Teh make it perfectly clear that the onus is on the Crown. Jiminez sets ratio in ‑ ‑ ‑
GLEESON CJ: Provided the case raises the question.
MR GAME: Yes. In the Court of Criminal Appeal if honest and reasonable mistake of fact arose, it was accepted that the appeal must be upheld because the onus was on the Crown and that is accepted by Justice Howie at page 625 paragraph 45.
GLEESON CJ: But there was an unresolved question or a question left unresolved in the Court of Criminal Appeal, that is to say, whether, assuming there was such a “defence”, this case raised it.
MR GAME: His Honour rejected that argument at pages 646 to 647.
GLEESON CJ: I thought at page 647, paragraph 151 he said:
it is unnecessary to go on to determine whether there was evidence to support the common law defence in the present case -
which is why I thought he left the question unresolved.
MR GAME: That may be so.
GLEESON CJ: I am looking at paragraph 151 of Justice Howie’s reasons on page 647 of the appeal book.
MR GAME: I have to say that the part that I noticed was 149 in the last sentence, “That submission must be rejected”. In answer 25 the accused spoke about something that indicated a commencement of oral sexual intercourse.
GLEESON CJ: I only raise the matter because I want to know if it is a matter that we have to decide.
MR GAME: Yes, your Honour. What we say in answer to that is this, bearing in mind where the onus lies, the issue must have squarely arisen in this case because he was ultimately sentenced on the basis that he had consensual sexual intercourse with the complainant. So the sexual act, in effect, is taken as established and if we are talking about an onus on the Crown, then that makes it even clearer.
We proceed in this case where the two alternative offences – the two principal offences have been – he has been acquitted of those and convicted of the third. But there is another aspect to this which we would want to put into the consideration of it, which is this. We argued that the verdict was unsafe, to use the old language, because either they accepted her story and he raped her or they accepted his story and no sexual intercourse took place. But that argument was disposed of against us – that is at paragraph 63 at page 629 of the appeal book, so one can take it from the evidence that there is a foundation in the evidence for this question. The question is, is there a foundation for it in the evidence; and we submit that that question has been determined, as it were, against us at an earlier point, where our argument that the verdict was unsafe was dismissed.
HAYNE J: Would the direction given by the trial judge have accorded with the state of law as it existed when section 77(2) was in force?
MR GAME: Yes, your Honour.
HAYNE J: That is, the burden was on the accused of establishing a 77(2) defence?
MR GAME: Yes. There is only one other matter I wanted to refer to and it is this. It is said in a substantial part of our opponent’s submissions that the Court should conclude that, if the defence is available, the onus is on the accused.
HAYNE J: That is to attribute the word “defence” as being the relevant realm of discourse.
MR GAME: Yes, your Honour. All I wanted to say is ‑ ‑ ‑
HAYNE J: And Thomas rather suggests that defence is not the relevant realm of discourse.
MR GAME: Yes. All I wanted to put about it is that the principles are well established. They have worked well. They have not created the problems that people thought or suggested that they could give rise to, and they find their way into the threads of significant decisions of this Court
about the mental state in criminal conduct – not just He Kaw Teh but, as I mentioned, Jiminez and Zecevic. They have found their way into how legislation is passed in respect of statutory offences, and we have referred in our submissions to a couple of cases about that. So in our submission it would not be appropriate for the Court to reopen that question. Those are my submissions.
GLEESON CJ: All right. You have completed your submissions without mentioning the expression “absolute liability”. Can we come back to your application to expand the special leave that you have been given?
KIRBY J: You will not forget my request, what the judge should have said in directing the jury.
MR GAME: Yes, your Honour. On a vote of two to one, we are not pressing the amendment.
GLEESON CJ: Thank you, Mr Game. Yes, Mr Frearson.
MR FREARSON: Thank you, your Honour. Well, I will endeavour to be reasonably succinct because the issues are fairly well developed. But on the statutory repeal ‑ ‑ ‑
GLEESON CJ: Well, you do not have to rush anything, Mr Frearson, we are going to sit until one o’clock and we will resume at two.
MR FREARSON: Thank you, your Honour. On the statutory repeal point, regardless of the situation prior to the existence of statutory defences of the 77(2) defence in particular, the existence of the 77(2) defence where it existed was logically inconsistent with any common law defence, and I think it has turned out to be common ground here that when they were both – they both could not have co‑existed.
KIRBY J: That was only in relation to offences against females, was it not?
MR FREARSON: Well, your Honour, at the end it actually applied to both for a short period because it included the part – it excluded males from the operation of the defence. So at the time of, say, Chard v Wallis, for example, whilst it is true to say that there was no defence for that particular – statutory defence for that particular charge, it is also true that that conduct could have been charged under a gender neutral provision which provided no defence if the victim was under 16, so it is not quite as straightforward as it would first appear. The statutory defence was certainly less liberal than the common law defence ‑ ‑ ‑
HAYNE J: What do you mean by common law defence?
MR FREARSON: The Proudman v Dayman defence of honest and reasonable mistake of fact, if I can use that expression.
HAYNE J: In light of He Kaw Teh do you accept that it is for the prosecution to disprove that element if there is an evidentiary basis for its consideration?
MR FREARSON: Well, your Honour, that is the next point I wanted to cover later down the track, but that is – the short answer is, no, I do not accept it but I do not think I will get great joy from your Honour about that, but I do not accept it. I was saying that the ‑ ‑ ‑
HAYNE J: I am here to listen to your argument, Mr Frearson, and I have not made up my mind.
MR FREARSON: No, your Honour, I am not suggesting your Honour has. The statutory defence was less liberal than the common law defence, it required proof of consent together with the honest and reasonable mistake of age, and it only applied to a child over 14.
KIRBY J: Again, is it correct to talk about this in terms of a taxonomy of defence that the hypothesis of Proudman v Dayman and Thomas, as I understand it, is that if you do not have the mens rea you have not – if there is an honest and reasonable mistake you do not have an essential ingredient to be guilty of the offence at all.
MR FREARSON: Well, your Honour, that is – to take up Justice Hayne’s point, it is a question of the terminology. What I will be submitting is in fact a ground of exculpation ‑ ‑ ‑
KIRBY J: If Justice Dixon says it is fundamental, as far as I am concerned unless somebody can show it is not fundamental, it is fundamental.
MR FREARSON: Well, perhaps I will get to that in due course, your Honour. I will endeavour to get to it in due course. Even assuming that there was a common law application at one stage of application of exculpation, if I can say it that way, the fact is that the type of conduct we are talking about here in relation to sexual intercourse with a complainant 14 to 16, that had been criminal conduct for almost a hundred years, and it is not correct to describe the offence today as a new offence, it is a continuation of what was an offence, they have changed the age brackets, that is for sure, but it is certainly not correct to describe it as an entirely “new offence”.
To take up Justice Crennan’s point, section 30(1)(a) of the Interpretation Act, my submission is that that does have effect here and it has the effect of not reviving whatever it was that may have existed under the Proudman v Dayman type principles. It has that effect, and when one goes and looks at the equivalent English provision that is referred to in Marshall & Ors v Smith, in my submission, there is just no doubt that you do not get to revival just because you have repealed the defence of 77(2).
Now, Justice Howie has gone through the history of the legislation and I will not trawl through all that, and my friend has done it today. I certainly will not do it in that type of detail, but I will just endeavour to encapsulate it the best way I can ‑ ‑ ‑
KIRBY J: Does Mr Game make a fair point in saying that given the long history of so many amendments and so many changes, that that is a relevant contextual matter in seeing whether the Parliament of New South Wales by the terms of its legislation has expressly knowingly excluded what Justice Dixon says is a fundamental principle of the way we interpret criminal statutes.
MR FREARSON: Yes, your Honour. It is certainly a relevant consideration to see if there is a cohesive scheme and that is a relevant consideration. It is a relevant consideration to see how the section evolved and it is relevant to consider the history of it and the subject matter of it ‑ ‑ ‑
GLEESON CJ: But ultimately it is, is it not, a question of statutory interpretation?
MR FREARSON: At the end of the day it is, your Honour, yes.
GUMMOW J: I think it is at the beginning of the day, not the end, actually.
GLEESON CJ: This gets back to a question Justice Gummow raised with your opponent earlier today. Any relevant common law principle is a common law principle of statutory interpretation, is it not?
MR FREARSON: Yes, your Honour.
GLEESON CJ: It is not as though the argument against you depends upon establishing the existence of a principle of common law, a substantive principle of common law which exists unless it is displaced by a statute. The argument against you, as I understand it, is that there is a principle about how you construe statutes.
MR FREARSON: Yes, your Honour. But there is also a principle that you can construe them in light of the history of the provision and in light of the subject matter.
GLEESON CJ: Quite. But here you have got, on any view of the matter, a statute that like most statutory provisions about crimes says nothing or does not say enough to answer all the questions that might arise.
MR FREARSON: No, your Honour, it does not. But looking at just the words of the statute, it talks about having sexual intercourse with an objectively underage person. That is what it talks about. It contains no mental element in the words of the actual statute.
GLEESON CJ: That is right, but then anybody looking at it would say, “Well, hang on, what if you think she is over 16?” You would not need to be very imaginative for that question to occur to you.
MR FREARSON: Then you get into all the difficulties that my learned friend talked about here today where he was bordering on saying these were mens rea offences. Now, we know that the legislation could never have intended that because of the age bands, because once you made a mistake about the age band, that would exonerate you if it was a mens rea offence ‑ ‑ ‑
GLEESON CJ: Although he was less than anxious to nail his colours to the mast, I do not think your opponent submitted that this is an offence in which the prosecution has to prove knowledge of the age of the victim.
MR FREARSON: Thank you, your Honour, and if you assume that what I call the common law exculpation applied, then you would run into the difficulty of defining the word - what makes the conduct innocent, whether it makes you innocent of any crime or makes you innocent of the particular crime you are charged with. That was referred to, I think, in Bergin v Stack, the High Court case where the answer to the question is it needs to be innocent in terms of crime.
If we go back to the old case of Prince, one way of rationalising that was that there was a confusion about what was innocent, if I can use that expression, whether it was morally innocent, whether it was innocent of some tort, whether it was innocent of a crime and the view seemed to be taken, if you abduct someone from the possession of their parent/guardian, that that somehow was offensive to public order or the rights of a parent or a guardian. I know we have moved away from that today and I think the answer to it would be that it would need to be innocent of a crime as opposed to tort or as opposed to some concept of moral culpability. I think that is true.
KIRBY J: I am losing a bit the structure of your argument. I know you have been answering questions but ‑ ‑ ‑
MR FREARSON: Yes, your Honour, I did get sidetracked.
KIRBY J: How do you structure the answer to the arguments that Mr Game has put to us? First of all, do you say that there is something in the history of the multiple amendments to the legislation which throws a clear light on what Parliament’s purpose was in this respect?
MR FREARSON: Yes, your Honour, there are some common denominators when you look at the history of the legislation, that is, that the activity of having sexual intercourse with an underage girl in particular that was criminal conduct from a long time ago. So the history is there and when you look at the way the legislation developed, for example, in 1910, there was a Crimes (Girl’s Protection) Act and the second reading speech for the 1910 Bill talk about a bill to protect girls under 16, girls being equally incapable of judging the effect of their acts, girls under 16 as girls under 14. The theme of it was to protect young people from others, from exploitation and to protect them from themselves.
In 1911, for example, what we saw then were the Crimes (Girl’s Protection) Amendment Act 1911. The defence was actually narrowed and this aspect of consent was introduced to it. To come within the defence you had to establish that the conduct was consensual. I suppose the next significant development was in 1981 when rape was replaced by sexual intercourse without consent but carnal knowledge continued to be an offence. In 1986 carnal knowledge was replaced with 66C, sexual intercourse with a person between 10 and 16, in short form. That necessarily picked up the expanded notions of “sexual intercourse”. Section 77 was redrafted. It was substantially the same but, in effect, that is the point where it went into subsections (1) and (2).
What you had at that point in 1986 was almost – if I can use the word “absolute” offence to mean an offence to which there was no exculpation but you had this very limited exception provided by the legislature which was indeed a very narrow exception. The second reading speech to the 1986 Act talked about consent not being an issue except in the very limited circumstances covered by section 77.
Now, my submission is that the legislature evinces an intention to provide a very limited statutory defence. Now, when we came to 2003 when it was repealed, 77(2), and that is when you had the separate offences being created in terms of the age bands, but there is nothing new in the context of being criminal. Consent was no defence under 77(1).
Now, it is one thing to say that it is not a guilty act to have sexual intercourse. That is true, obviously, but looking at the words of the section, if the section says it makes it an offence to have sexual intercourse with a person under a particular age and 77(1) says that consent is no defence, it depends upon what you mean by “innocent” and it depends on what you mean by – it really begs the question, because the question at the end of the day is whether some mental element or some exculpation applies.
GLEESON CJ: Which is the section that now deals with what used to be called “rape”?
MR FREARSON: It would be 61J, I think.
GLEESON CJ: Section 61J. I do not think so.
HEYDON J: Section 61I.
MR FREARSON: Section 61I and J is the aggravated form of it, apparently.
GLEESON CJ: That contains in its terms the requisite state of knowledge.
MR FREARSON: Yes, it does, your Honour. That is the contrast that can be made, but they say that is not decisive but certainly the Crimes Act does contain provisions where a state of knowledge is required to be approved by the prosecution. They have put in the word “knowingly”. Now, it is interesting in relation to the carnal knowledge provisions. It used to be called “unlawful carnal knowledge”. The “unlawful” has disappeared. Why it was there in the beginning it is very hard to ascertain, but it may be because at one time the marriageable age was 12. That might be the reason that “unlawful” was put in, because it would not be an offence to have sexual intercourse with your wife, presumably, if she was 12. Maybe that is why “unlawful” was there then and is not there now. I do not really know.
HEYDON J: Mr Frearson, do you rely on the fact that section 78C makes it a defence to incest that the person charged did not know of the relationship between the accused and the other party, whereas there is no equivalent in section 66C?
MR FREARSON: Yes, your Honour. While I am directed to that particular section, it is clear that where section 78C(2) talks about defences to incest it is clear that it is talking about what is “an actual defence” and the onus in that situation would be on the accused to come within it. It is not so different from the provisions under the Crimes Act, which is 417A. Yes, 417A is the section that deals with the proof of the exemptions.
The exception, exemption, proviso, excuse or provocation may be proved by the accused person.
That is an exemption in the definition of a crime. It is not so much different from that. I am not quite sure whether it actually comes within that or not, but certainly it is described as a defence and the onus would be on the accused. That is my submission about that.
KIRBY J: That goes back again to the fundamental question, is it really a defence or is it a principle of the common law of statutory interpretation in the way in which you construe the legislation. I take the points you have made about the history and inconsistent provisions, and they have to be put into the scales, but as against that these provisions are enacted as part of the general criminal statute of a State of Australia.
MR FREARSON: Yes, your Honour.
KIRBY J: They are enacted against the background of what Justice Dixon called, and what many people have called, a fundamental principle of our criminal law.
MR FREARSON: Yes, your Honour.
KIRBY J: The thing that worries me is, if Parliament does not expressly and very clearly say that we are taking away the element of reasonable and honest mistake, then you do not really have Parliament wearing – first of all, it is quite difficult to express it, but if you express it clearly, then Parliament accepts the political accountability before society of taking away what has been called a fundamental principle of the criminal law. If I am in a corner and I have these things weighing both ways, I have to tell you that a matter that will weigh with me is that this Court should stick with the fundamental and say Parliament has to do this very clearly because it is fundamental and assume the accountability and responsibility before the community of taking away a fundamental principle which runs through the criminal law.
MR FREARSON: Yes, your Honour, but it may be that Parliament did do it having in mind the provisions of the Interpretation Act, that may be correct. The explanatory memorandum to the Bill described the Bill removing at least the current statute defence. The second reading speech talked in terms of eliminating a defence currently available in regard to consensual activity with young people between 14 and 16. During the debate there was talk about the removal of an express defence based upon reasonable mistake of age. There was every indication ‑ ‑ ‑
KIRBY J: That runs into – I accept and I have read part of the second reading speech, and I do understand that “absolute” was used, and that has to be weighed too, but against that if you do not take the view that this is strictly speaking in law a defence but is a component of the criminality of the offence, then you have to require that Parliament address itself expressly to that and that it just does not get consigned to what people say in the chamber. It has to be in the statute. That is how Parliament speaks to us as a court.
MR FREARSON: Yes, your Honour, but the statute in light of the subject matter and in light of the history of the provision, and I would say in light of the express repeal of a quite difficult defence, narrow defence, in light of all those matters what can Parliament have intended? You would need to factor all those into the actual wording of the statute.
GUMMOW J: Do you have any indication that the Parliament turned its mind to some social realities that a lot of this activity occurs between persons in the same age group? They are all young people. As I say, they are not necessarily adult predators.
MR FREARSON: No, not necessarily, your Honour, but ‑ ‑ ‑
GUMMOW J: That is what troubled the judge in this case at the end of the day.
MR FREARSON: Yes, your Honour. It seems from the totality of the material that Parliament just decided that there was to be no defence and that seems to be what the history of the legislation would indicate. That is another question of whether there should be a defence ‑ ‑ ‑
GUMMOW J: Young people simply do not go round saying “X is 14, but I am 15”. They are not turning their mind to those things. They are busily drinking, it seems from this case.
MR FREARSON: Justice Howie did refer to some anomalies as a result of the repeal and if you assume that some exculpation arises under the common law – I think you mentioned some sections – 61L, for example, contain no age element, 77(2) applied. There was consent with no defence but 77(2) applied. That section existed pre and post the repeal of 77(2). I just want to say something very quickly about the English cases.
GLEESON CJ: Just before you depart from what you have been discussing a moment ago, Mr Game said in relation to the possibility of mistaken beliefs within these gradations about age that somebody who mistakenly, but honestly and reasonably, et cetera, believed that a person who was in fact 12 was in fact 14 would be not guilty of the offence covering 12‑year‑olds but would be guilty of the offence of an attempt to commit the offence covering 14‑year‑olds.
MR FREARSON: Your Honour, how could that possibly be so? The whole age structure is a premise upon actual age and if you attempted to commit the other offence, it would seem to be impossible.
GLEESON CJ: That is what I was about to ask you. There is a lot of law on the question of allegations of the crime of attempt in circumstances where it is impossible. If a male person said, “I believe that female person is aged 14”, whereas in fact she is only aged 11, and he has sex with her, is he attempting to have sex with a 14‑year‑old person?
MR FREARSON: No, it could not possibly be, your Honour, because it is impossible to commit that offence. It does not matter what he was intending to do.
GLEESON CJ: Impossible to commit that offence with that person.
MR FREARSON: Because she was not of that age ‑ ‑ ‑
GLEESON CJ: If you put the attempt solution to one side, what is the legal consequence of mistaken beliefs within these various age brackets?
MR FREARSON: Complete acquittal. You are not liable for any offence. That is the legal consequence.
KIRBY J: You can charge in the alternative.
MR FREARSON: No, your Honour. You have to be satisfied beyond reasonable doubt of either one.
GLEESON CJ: The victim has only one age at the relevant time. There are no alternative ages.
MR FREARSON: I accept that, your Honour.
GLEESON CJ: Now, unless you can deal with the problem by saying that person is guilty of attempt, the only other question that arises – and I think this is a question that might have been addressed in the Court of Appeal – is this. Let me for convenience call it a “defence”. Does that only apply where, if you are honest and reasonable mistaken belief of fact were true, your conduct would be innocent in the sense of conduct that did not constitute any offence?
MR FREARSON: I think the answer to that is Justice Fullagar in Bergin v Stack where he says innocent of any crime.
GLEESON CJ: Of any crime?
MR FREARSON: Of any crime, yes. You could not ‑ ‑ ‑
GLEESON CJ: If that is right, then a person who had an honest and reasonable mistaken belief within the age brackets, as it were, would not be able to raise that matter of exculpation or potential exculpation except in relation to the top age bracket. Is that right?
MR FREARSON: Yes, depending on how you define the word “innocent”, yes.
GLEESON CJ: I regret I used the word “innocent”. What I am interested to know is, how does this issue about honest and reasonable mistaken belief work, except in relation to a mistake about the top age bracket, and what, if anything, does that problem, if it is a problem, tell you about whether it works at all?
MR FREARSON: Well, it is true that if you had an honest and reasonable belief that exonerated you from one particular age bracket that made you guilty of some other crime in the same regime, on the view in Bergin v Stack that would not exonerate you, that would simply have no – that is not a mistake you could – not a “mistake” you could avail yourself of because it does not render your activity innocent in the more general sense of being blameless in relation to crime.
GLEESON CJ: This is not a fanciful possibility. We handed down judgment yesterday in a case in which the only disagreement between the accused and the complainant was whether at the relevant time the complainant was 13 or 14. So, the possibility of erroneous beliefs about age can plainly operate at different levels within the various age groups that begin at birth and then go to 10, 14, 16 et cetera, and it seems to me at the moment at least, it may be necessary to think through what the consequences of this are in that respect.
MR FREARSON: Yes, your Honour.
GLEESON CJ: But the answer that was given by your opponent was, well, you would deal with that under the rubric of attempt.
KIRBY J: He pointed to a particular statutory provision which I just cannot quickly pick up in the morass of legislation that we were taken to.
MR FREARSON: It did not apply, because that provision, whatever it was, was based upon actual age and not belief of that age.
KIRBY J: What was that section?
HAYNE J: Section 66E and alternative verdicts and they cannot be engaged because they are dependent upon actual age, not believe as to age.
MR FREARSON: Yes, that is so, your Honour.
GLEESON CJ: I am conscious of the fact that there is a lot of learning on the question of attempt to do the impossible. That is why I am inviting your submissions. Perhaps it is something you would like to think about over lunch.
MR FREARSON: Yes, I think it is something I would like to think about, your Honour, yes.
GLEESON CJ: We can come back to it at 2 o’clock. We will adjourn until 2.00 pm.
AT 12.58 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Frearson.
MR FREARSON: Thank you, your Honour. Could I resume with the question of the attempt. My submission is this, the age element is objective when one looks at a provision like 162 of the Criminal Procedure Act which provides for an alternative verdict for attempt. It is providing for an alternative verdict for a particular offence attempt of that particular offence so obviously that must be premised on an objective age element. In the type of a situation that is envisaged as applying here you had a person charged and evidence was introduced about a mistake about age, that would normally be a situation where you had a completed Act.
It is quite inconceivable – or you had a completed Act, you then could say someone was guilty of an attempt of some offence of some entirely different age. It does not seem to fit, is my submission. My submission is, if you just think about the terms of the indictment, even if you charge just for an attempt, say, under 344A, you charge attempt to have sexual intercourse with a person so‑and‑so, name the person of a particular age, how would you ever prove it because the defence would be that person was not of that age. It seems to offend too many basic principles. In my submission, an attempt would not be available.
I just want to say something very briefly about the English cases and in particular K. Much of the reasoning of Lord Bingham of Cornhill – he talked about the lack of the cohesive scheme, but in particular what Lord Bingham did was this. He seemed to equate a sexual assault of a child with sexual assault of an adult and he talked in terms of unlawful application of force, battery, apprehension, apprehension of violence and my submission is this, that in relation to children that has no application at all. It is extremely fallacious because where consent is no defence, you take the act as if it had occurred in a situation of non‑consent. For example, the case of McCormack (1969) 2 QB 442 and there is some reference to it in Beserick (1993) 30 NSWLR 510.
Obviously when you have an indecent assault with a child, you do not have apprehension of fear, you do not have battery, you have nice friendly touching, you have exploitation. It is not an assault in the usual sense of an assault. So it appears that Lord Bingham got off the track when he talked about why it is necessary to impute mens rea into this indecent assault type of offence.
What I would like to do now is to very briefly address the operative mistake point, it being less controversial than the final point and if I can put it very simply and put it like this. Implicit in the notion of an honest and reasonable mistake is a nexus between the mistake and the actus reus, particularly if there is an insistence upon an affirmative or positive belief. In this particular case the appellant did nothing in consequences of his suggested mistake. He did not have sexual intercourse with the complainant, on his version. He denied sexual intercourse entirely. There was no occasion for him to advert to the complainant’s age. True it is he said he had some belief about it in a general sense, and accepting one ‑ ‑ ‑
KIRBY J: I thought he specifically said that she had told him that she was over 16 years of age?
MR FREARSON: He did say that, your Honour; yes. That is in the interview, your Honour, yes.
KIRBY J: It is not vague, it was a specific assertion in the ERISP interview.
MR FREARSON: He said he was told that at some stage. One would need to factor in that she is in year 9 at school, he goes to the same school, he is in year 11. He proffers the age in circumstances where he denies intercourse. There are other factors related to it. But I was getting to the point that the reasonableness of a mistake must necessarily depend upon the circumstances in which you make it. You might think someone is of a particular age if you are going to the cinema with them but having sexual intercourse with them might be an entirely different matter. You might have to think twice about age and you might have to have a firmer basis for your belief and the threshold of “reasonable” might be variable, depending on the circumstances in which you make the mistake. You do not make the mistake in a vacuum, you make it in the actus reus.
My submission is that when you look at a case like State Rail Authority (NSW) v Hunter Water Board, it is not a question of a possibility of an affirmative belief, you are talking about an actual mistake. Here the suggestion is that Pemble says, nom what has to happen here is that “any defence has to be put”. One would wonder how Pemble ever got stretched to that stage. Pemble was a homicide case. The judge instructed the jury it was either murder or manslaughter and at the behest of counsel he was encouraging the jury to bring in a verdict of manslaughter. Everyone was in the actus reus here and what happened was the criticism was that nobody told the jury they could acquit.
Of course it is authority for the proposition principally that the judge must discharge his obligations regardless of what counsel think his obligations are. But stretching it to a situation where you can have an affirmative mistake that does not even relate to the circumstances of the case, in my submission, is stretching it to the point of almost absurdity.
GLEESON CJ: This is a case in which the judge actually left the question to the jury in a way that, according to your opponent, was correct except in one significant respect - it inverted the onus of proof.
MR FREARSON: Yes, your Honour.
GLEESON CJ: Now, is it your argument that the direction was unduly favourable to the accused?
MR FREARSON: My argument is the direction should not have been given at all because it was an operative mistake.
GLEESON CJ: Well, where does the leave the conviction, suppose you are right about that? Suppose this were just a false issue that the judge raised?
MR FREARSON: That leaves the condition safe, your Honour, because a fourth issue was raised. It was advantageous to the appellant and it is meaningless in terms of the conviction. It did involve an error, but it did not involve a relevant error.
HEYDON J: It negates the judge’s mistake as to the burden of proof if it was a mistake.
MR FREARSON: Yes, your Honour. Can I just interrupt here by saying that at appeal 305 it does appear that his Honour deliberately placed the onus where he put it where he says at about point 3:
When considering that, it seems to me that if it is a defence, that is, if the onus of proof is upon the accused –
I am just making a point that I think it was a considered ‑ ‑ ‑
GLEESON CJ: A Pemble problem arises if the judge does not give a direction about something at all and then somebody comes along to the court and says, “The judge should have directed”. But where a judge gives a direction, your proposition has to come down to the fact, does it not, that the direction was unduly favourable to the accused and if the judge made an error, it was an immaterial error?
MR FREARSON: Yes, your Honour. Now, could I move on then to the more controversial topic about the onus. Assuming that the exculpation did apply, where was the onus? Was the onus on the Crown or on the accused? Now, for the purposes of this, I can assume that the categories of offences are mens rea offences, what I call strict liability offences where the type of exculpation would apply, and absolute offences where there would be no defence at all. The notion of presumed or contingent mens rea introduces a confusing fiction.
Now, following He Kaw Teh the court struggled to accommodate the fiction. For example, in Von Lieven v Stewart, the case that dealt with securities, dealing with securities without a licence, Justice Handley concluded:
One may readily conclude that the Parliament did not intend in to make knowledge of the circumstances in which the physical acts were done an essential element of these offences . . .
On the other hand if the sections are construed so that criminal responsibility depends upon the absence of an exculpatory belief . . . “luckless victims” will not be penalised.
Now, the thrust of what I am putting is this, that traditionally it was a ground of exculpation. It was not something to negate mens rea or presumed mens rea. It was simply a ground of exculpation. For example, if one went to a case like Jiminez, Jiminez is an objective liability case. Where does the notion of negating presumed mens rea fit with the court having recourse to honest and reasonable mistake? It provided a defence or exculpation, but not because it rebutted presumed mens rea, there was no mens rea in that sense. It provided a ground of exculpation.
So there is a difference between talking about absolving a person of criminal responsibility and making something part of a presumed mens rea. Now, there is no necessity to presume mens rea in order to exclude criminal responsibility. Criminal responsibility can be excluded by permitting a “defence” of honest and reasonable mistake. Now, the post‑He Kaw Teh insistence that there be an affirmative belief provides another irreconcilable tension because ‑ ‑ ‑
GLEESON CJ: I may be misremembering, but was He Kaw Teh ultimately a question about what was involved in the concept of possession?
MR FREARSON: Yes, your Honour. Import and possession, there were two charges, but ‑ ‑ ‑
GLEESON CJ: Yes. Well, just concentrate on possession at the moment, and by reference to the principles of the kind that we have been looking at today, they came to the conclusion that possession meant knowing possession.
MR FREARSON: I think they came to the conclusion possession meant knowing possession in the sense you had to know you had the article but did not have to know what it was, that was the critical feature.
GLEESON CJ: That is right. You did not have to know what it was. You did not have to know whether it was ecstasy or cocaine. So it was about the construction of the word “possession” in the statute?
MR FREARSON: Yes, which connotes in itself some notion of knowing you have it; one would wonder whether it even went beyond the actus reus in that case because ‑ ‑ ‑
GLEESON CJ: In a situation where it is a word that as a matter of English is capable of covering having something in your pocket even though you do not know it is there, or where it might mean you have to know that you have something in your pocket even if you do not know precisely what its chemical content is.
MR FREARSON: Yes, your Honour.
GLEESON CJ: In the case of an offence of the kind created by section 61C(3) once you accept, as is accepted, as I understand it, that knowledge of the age of the complainant is not an element of the offence, it is not something that the prosecution has to prove, then the line of country that you are in is, to use the expression I think of Proudman v Dayman, belief by the accused, honest and reasonable belief by the accused, in a state of fact which, if it had existed, would have meant that he was not committing an offence.
MR FREARSON: Yes, your Honour.
GLEESON CJ: Query whether the appropriate word is “an” or “the”, that is the subject we have been looking at earlier.
MR FREARSON: Yes, your Honour.
GLEESON CJ: Then the question arises, in that line of country, in such a statutory context, where knowledge is not an element of the offence, where does the onus of proof lie?
MR FREARSON: In my submission, it would clearly lie upon the accused because it is only this notion of the negation of mens rea that ever put it on the Crown. If there is no mental element there for the Crown to prove, then there is no justification to put the onus on the Crown. When one looks at Proudman v Dayman, there is no suggestion there that this exculpation has anything to do with having some element of the attempt that the Crown has to negate, presumed or otherwise. It is simply not there.
HAYNE J: Are you not necessarily unpicking Woolmington and unpicking Thomas? Do you not, to support that argument, have to invite us to reject Woolmington and, perhaps more relevantly, reject Thomas?
MR FREARSON: No, your Honour. The court did not apparently realise the implications of Woolmington for quite some time. It was really only after He Kaw Teh. But for a long time – it depends on what you ‑ ‑ ‑
HAYNE J: I think that is not right. I think if you go back in the same volume as Thomas, you will find R v Mullen 59 CLR 124. That is the case.
GUMMOW J: The case where they had to accommodate Woolmington, the Code in Queensland.
MR FREARSON: I thank your Honour.
GUMMOW J: Do not think the Judges of that generation did not read the appeal cases.
HAYNE J: They read little else. Do you not have to unpick Thomas, because Thomas has no element of knowledge? The offence in Thomas is, whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife shall be guilty of felony. No element of knowledge, no element of possession, no element of adversion to anything. Bare facts, married, goes through form of ceremony.
MR FREARSON: Your Honour, and it has no element of notional mens rea either when one looks at 309, the passage your Honour was talking about:
If upon such a charge the accused were not permitted to exculpate himself by showing that on reasonable grounds he mistakenly believed in facts, which, if true –
It is not talking about, with respect, negation of presumed mens rea because it has no element of knowledge, that is true. It is actually talking about providing a ground of exculpation. If one goes forward then to page 299, point 8:
This does not, however, relieve us of the responsibility of determining how far a belief in a state of facts, which, if correct, would mean that the prior marriage was void, affords an answer to a charge of bigamy.
“An answer to a charge of bigamy”, it is always in the terms of exculpation in relation to a crime that does not need knowledge.
HAYNE J: It is the next sentence which is the sentence you have to grapple with:
The question appears to me to go deeply into the principles of the common law.
The relevant principle is one about how you read a criminal statute.
MR FREARSON: What goes deeply into the common law is providing a mechanism for exculpation in crimes that do not require knowledge as an element to be proved by the Crown. That is what Thomas is actually talking about, in my submission.
GLEESON CJ: Did not the Criminal Code deal with this – that case of Ostrowski that was mentioned earlier was about the Criminal Code (WA) which I think was based on the Criminal Code (Qld) - did that deal with this question of onus of proof? They had this provision.
MR FREARSON: Your Honour, I cannot answer whether that dealt with the question of onus of proof. I know the Criminal Code (Cth) when it defines what they describe as offences of strict liability, they define those as crimes without any fault element.
GLEESON CJ: The section of the Criminal Code (WA) that we were looking at provided:
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.
I have no present recollection of what, if anything, we were told in that case about the onus of proof.
HAYNE J: But regard might be had to Mullen which concerned the Queensland Code. That is Mullen 59 CLR 124. The headnote, which reads:
On a charge under sec. 301 of the Criminal Code (Q.) of wilful murder the burden is not on the accused to satisfy the jury on the issue of accident; it is for the Crown to establish a killing with the intention required by the section, and, therefore, one which was not accidental.
Now, mistake, accident and those Code defences have to be negated, do they not, as part of the Crown’s proof?
MR FREARSON: That is very close to Woolmington if you are talking about a homicide and a defensive accident, but that is a full mens rea offence, your Honour. We are not talking about offences there that contain no mental element above the performance of the actus reus.
HAYNE J: Exactly so, and that is why Thomas is so critical to the resolution of these issues, because on its face all Thomas says is, “If you are married and go through a ceremony - offence”. How does the court struggle with that? The answer given by Justice Dixon was questions of belief are at least relevant. The next issue, who has to prove it or disprove it, is where we are at in the debate, are we not?
MR FREARSON: Yes, your Honour, but if it is a ground of exculpation according to Thomas, the onus would be on the accused.
GLEESON CJ: You mentioned a case of Von Lieven a little earlier. Did not Justice Handley look at this kind of issue in that case?
MR FREARSON: Yes, that was the dealing with securities case. Justice Handley did look at it, yes.
GLEESON CJ: What is the reference to that?
MR FREARSON: I have that one here. (1990) 21 NSWLR 52.
GLEESON CJ: Is that a case about onus, or was it a question of what was a mistake of law and what was a mistake of fact?
MR FREARSON: About a mistake of law, your Honour. There is reference to Teh and the external elements of crime. The part that I was talking about before is page 63 when Justice Handley says:
One may readily conclude that the Parliament did not intend in to make knowledge of the circumstances in which the physical acts were done an essential element of these offences.
The other point is this. There is this tension between – once you say that the onus is on the Crown and then to also insist that the accused has to have an affirmative mistake, there is a tension there, because once you put the onus on the Crown, what the Crown then has to exclude the possibility of an affirmative mistake, which never gets to the threshold of an affirmative mistake. That is the difficulty with the whole current concept. The whole notion in Proudman v Dayman, looking at page 540:
As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.
So you are talking about things that would otherwise be an offence. There is a ground of exculpation if you prove an honest belief on reasonable grounds. It makes perfect sense when we are not talking about mens rea or presumed mens rea, it makes perfect sense when we are just talking about relief from criminal responsibility, an exculpation for those who are shown or demonstrated to be innocent on the balance of probabilities, on reasonable grounds with an honest belief.
That fits perfectly with, as I said before, a case like Jiminez, where there is actually nothing to presume about the mens rea, it does not make any sense to premise exculpation on some notional or contingent presumed mens rea if the criminal offence as it was did not have any mens rea. So this current formula just does not fit. It does not fit all the categories of cases.
Now, Tolson applied the common law rule of honest and reasonable mistake to statutory offences. Sherras v De Rutzen - it is true that there was a presumption of knowledge and intention which could be displaced by the subject matter. In Maher v Musson Justice Dixon spoke in terms that the offence did not acknowledge an element. That was the custody of illicit spirits. The offence did not acknowledge an element. But an honest and reasonable belief is an offence and he applied Tolson. The question was whether the defence should be excluded. The absolute language of the statute threw the defence upon the accused. Justices Evatt and McTiernan:
a person charged . . . is entitled to be discharged if he proves that he neither believed nor had reason to believe that the spirits in respect of which he is charged were illicit.
Maher v Musson was repeatedly affirmed. In Thomas v The King there was no suggestion that the onus was other than on the accused.
HAYNE J: That may owe much to the fact that it was a case stated and the question of law referred to the Court of Criminal Appeal in Victoria was, is it a good defence?
MR FREARSON: Yes, your Honour.
HAYNE J: The case comes up as a case stated; the court is effectively hamstrung by the way in which it has come up.
MR FREARSON: That is a possible explanation, your Honour.
GLEESON CJ: What is the reference to that passage in the judgment of Justice Evatt and somebody else that you gave a moment ago?
HEYDON J: Page 109.
MR FREARSON: Page 109 Maher v Musson.
HEYDON J: (1934) 52 CLR 100 at 109.
MR FREARSON: Thank you, your Honour. The next case is Bergin v Stack 88 CLR 248 at page 260. That was selling liquor without a licence. You had to have a licence to sell liquor. Justice Fullagar said in that case that “knowledge is not an essential ingredient”, but as an affirmative answer, if the defendant proved that he honestly and reasonably believed. In that case, Proudman v Dayman was cited.
Now, the next case is Reynhoudt (1962) 107 CLR 381, and that was a case about assaulting the police officer in the execution of duty, and the majority held it was only necessary to prove an intent in relation to the actual assault, but that intention did not go to the aggravating feature, but then again could have something to do with this idea of innocence because if you are guilty of the assault, a belief about the aggravating feature would not exculpate you because you would still be guilty of a crime. It might be rationalised on that basis.
Justice Menzies said it follows that where the defence applies honest and reasonable mistake knowledge is not an ingredient of the offence, at page 399. French is another one, if the offence required mens rea the Crown had to negate it. If it did not require mens rea the accused could prove an honest and reasonable mistake. That is at ‑ ‑ ‑
GLEESON CJ: A reference?
MR FREARSON: That is 119 CLR 84, and that was the case that concerned wilfully recovering rent which was not recoverable. It was the owner of a substandard ‑ ‑ ‑
GLEESON CJ: What page?
MR FREARSON: Page 97, and that was – sorry, that was Chief Justice in dissent at 97.
HEYDON J: You are relying on Justice Windeyer, I think.
MR FREARSON: Yes, I think I am. I think Justice Windeyer talked about the presence of the word “wilful” and concluded that even without the word “wilfully” an honest and reasonable mistake would be a defence. The presence of the word made it a mens rea offence. I think he said an honest mistake was the defence, but it was not a Proudman v Dayman situation because the elements were within the mens rea.
Now, I will not bother to talk about England because it went down a different path because there they only have mens rea offences and essentially absolute offences. They do not have this exculpation in terms of Proudman v Dayman. But certainly in Canada strict liability has been preserved, R v Sault Ste Marie. That case involved discharging of material that would impair the quality of water and it was held that there were three categories of offences, mens rea offences, strict liability offences where there is no defence and absolute offences.
KIRBY J: Where are those distinctions best described - differentiated?
MR FREARSON: Probably at paragraph 29 where there is a reference to Dr Glanville Williams about the halfway house and reference to Proudman v Dayman at paragraph 33.
HEYDON J: That is in [1978] 2 SCR 1299.
MR FREARSON: Thank you, your Honour.
HEYDON J: You have to give the references because when we read this argument on transcript it is almost impossibly irritating not to know which book to look at so that one can follow the submissions.
MR FREARSON: At paragraph 37 there is a reference to Woolmington not standing in the way of a category where there is a burden upon the accused to exculpate and to establish it on the balance of probabilities.
GLEESON CJ: In the case of Von Lieven (1990) 21 NSWLR 52 that was mentioned a little earlier at page 65 Justice Handley, having gone through a lot of the authorities on this, referred to the question of onus of proof and said at line C on page 65:
This ground of exculpation is therefore a narrow one, and is only available where the defence introduces evidentiary material either by cross examination or in the defence case to establish that the defendant acted under a mistaken belief which was both reasonable and relevant to the culpability. Once such material is introduced the ultimate onus lies upon the prosecution to negative the existence of such a belief.
We have passed beyond that part of the argument which would involve questioning whether you should add to the reference to introducing evidentiary material a reference to material that is there, for example, in an ERISP tendered by the prosecution. As I say, we have gone beyond that point, but Justice Handley seems to accept that there is an evidentiary onus on the defence and if that is satisfied, the ultimate onus lies on the prosecution.
MR FREARSON: Yes, he does, but he is speaking post‑Teh so what ‑ ‑ ‑
GLEESON CJ: That, if I may say so, is my recollection of the way I dealt with the matter in the case of SRA v Hunter Water Board.
MR FREARSON: It certainly is, your Honour. That is exactly right. There is that tension there, though, if you talk about negating an affirmative belief. If you talk about negation beyond reasonable doubt, what are you talking about? What you have to negate, if you put the onus on the Crown beyond reasonable doubt, is to negate the possibility of an affirmative belief. So it does not sit with any notion of establishing or proving a positive belief. I mean, you are back almost to mens rea. Once you start talking in terms of affirmative beliefs and positive beliefs and you talk about the Crown negating it beyond reasonable doubt, there is an irreconcilable tension there because the negation of the possibility beyond reasonable doubt of the existences of affirmative belief tells you nothing about whether the belief actually existed. There is a threshold point there.
GLEESON CJ: Does it all ultimately come down to, even the question of onus, a question of statutory construction?
MR FREARSON: The difficulty is with Teh. Teh is the case that people follow and people interpret that as meaning that every time there is a ground of exculpation the onus is on the prosecution. Then you go back to Woolmington. My submission was that Woolmington actually deals with a different issue. It deals with the shifting of the onus generally and in mens rea cases in particular, and it deals with May v O’Sullivan‑type situation that once the Crown establishes a prima facie case, the onus does not then shift to the accused, but what ‑ ‑ ‑
KIEFEL J: Is your starting point then with respect to onus as a question of construction, whether or not the offence has an element of mens rea?
MR FREARSON: Yes, your Honour. That is the starting point and that is precisely the point. Either the offence has an element of mens rea – and when I say mens rea I mean something above the mental element that is required to go with a performance of the actus rea. Every offence has some type of mental element.
KIEFEL J: Is that consistent with the approach taken by Justice Brennan, however, in ‑ ‑ ‑
MR FREARSON: No, it is not, but I think he said that you had to have knowledge not only of the presence of the item but it was actually a narcotic. So his approach does not quite fit. He takes a different line to the others in Teh. He goes further. That question was ultimately left open, as I understood it. Justice Wilson said that no knowledge was required of the nature of the drug, similarly with Justice Dawson.
GLEESON CJ: I think there is an important passage in Justice Brennan’s judgment in He Kaw Teh where, making a reference to something Lord Hailsham said somewhere, he said the beginning of wisdom is to understand that when you are talking about mens rea or knowledge you have to decide in the case of each particular client, knowledge of what?
MR FREARSON: Yes, your Honour. That is right, your Honour. Take knowledge of what. If you look at the drug cases, for example, in He Kaw Teh it does not seem to go much beyond the actus reus, because ‑ ‑ ‑
GLEESON CJ: But there is an element of mens rea in this offence. It does not answer the present problem, but you have to intend to engage in the sexual act.
MR FREARSON: Yes, and in that sense it is not an absolute offence. In that sense, because you have to have some intention or knowledge or awareness or recklessness in relation to at least the performance of the actus reus. You have to know you are having sexual intercourse with someone, obviously. So in that sense it is not absolute. But when people were talking about “absolute” in relation to the 66C offences, they are talking about absolute in terms of the age component and nothing else, just the age component.
Now, I was going to say something very briefly about New Zealand. Perhaps I will just go straight to Millar v Ministry for Transport [1986] 1 NZLR 660. What Millar suggests at 665 is that the consequence of Teh is to eliminate what they call strict liability offences, that is, offences where there is no specific mental element required, but there is a ground of exculpation. What they say Teh has done is just eliminate that category completely and then gone to mens rea offences and absolute offences. That is why, in my submission, the onus has come to be on the Crown.
The consequence of He Kaw Teh is probably in Wampfler (1987) 11 NSWLR 541. The new categories are mens rea, presumed mens rea and absolutely offences. The presumed mens rea – this is the interpretation of He Kaw Teh – offences are the ones where there is exculpation via honest and reasonable mistake of fact. The Crown’s submission is that that is not correct in principle. The offences either have mens rea or they do not have mens rea and there is no defence, or they do not have mens rea and there is a defence. There is an exculpation from criminal responsibility that is afforded via honest and reasonable mistake.
GLEESON CJ: The argument against you comes to this, does it not, right or wrong, in making out a case under section 61C(3) the prosecution does not have to establish that the accused knew that the complainant was under the age of 16, but if there is something in the evidence that affords a ground for thinking that the accused might have believed that the complainant was over 16, the prosecution must prove beyond reasonable doubt that the accused did not honestly believe on reasonable grounds that she was over 16? That is what it comes to, does it not?
MR FREARSON: It does come to that, your Honour, but the only benefit for the prosecution there, in this category, is that normally they would have to negate any belief whether it is reasonable or not but this time they have to negate a belief that it is at least honest and reasonable as well, but apart from that ‑ ‑ ‑
GLEESON CJ: I have not followed that point.
MR FREARSON: Sorry, your Honour. Your Honour is saying that if there is some evidence in the case as to the state of mind of the accused about belief ‑ ‑ ‑
GLEESON CJ: Yes, the way I put that goes beyond what Justice Handley said in Von Lieven, but I am conscious of that.
MR FREARSON: Yes, your Honour. I am trying to contrast the difference if it was just a mens rea offence. If it was a mens rea offence, a complete mens rea offence as to age ‑ ‑ ‑
GLEESON CJ: I really was trying to avoid putting any kind of labels on the offence. I was trying to work out the consequence of a statutory construction. What did Parliament provide?
MR FREARSON: It provided an offence that had an addictive element as to age; nothing more, nothing less. It just said, you have sexual intercourse with someone who is between 14 and 16 and they are under age, that is an offence, and then in 77(1) it said, consent is not a defence to this.
GLEESON CJ: But what Parliament intend to say about the obvious possibility that would occur to anybody, lawyer or lay person, reading this section, that is, what was the answer to the question, what if you thought she was over 16?
MR FREARSON: No defence, that is what Parliament intended because, looking at the history of the legislation, they had provided a very very limited statutory defence for years and years and then they said they had eliminated the defence. Parliament must have intended that there be no defence. It must have been the intention. There is no other explanation for the history of the legislation and the very constrained defences that existed, and the explanatory notes ‑ ‑ ‑
GLEESON CJ: It is such an obvious possibility that has to be covered one way or another by the law that, as Justice Howie remarked, it is remarkable that nothing was actually said about it especially when they were repealing section 77(2) which was precisely on the point. But that having happened, the law just does not leave a gap, does it?
MR FREARSON: When you say it does not leave a gap, it does not ‑ ‑ ‑
GLEESON CJ: Somebody has to deal with the problem. It is such an obvious problem.
MR FREARSON: I suppose ultimately ‑ ‑ ‑
GLEESON CJ: If you are going to create an offence that says it is a crime to do something with a person under the age of 16 and you do not have to know that the person was under 16 in order to be guilty of the crime, then there arises the obvious question, what about someone that you believe to be over 16?
MR FREARSON: Yes, your Honour, but that is the very defence that was taken away. That defence was there and it was combined with ‑ ‑ ‑
GLEESON CJ: That is what it ultimately has to come down, does it not? What do you make in this context of the repeal of section 77(2)? One possibility is that it removes any possibility of exculpation on that ground. The other possibility is that it sets Proudman v Dayman running.
MR FREARSON: If it sets it running, it may well set it running throughout the whole ambit of the sexual assault offences throughout the whole age range. It has never been a defence to make a mistake about someone under 14. That has never, ever been a defence and they were always, in terms of age, absolute for years and years. Parliament could never have intended for a defence to run outside the very limited parameters of the original statutory defence, 14 to 16. They could never have intended that. It is inconceivable that they would have intended that. They intended to, for one reason or another which I cannot answer, take away the defence.
It is a question of Parliament defining the terms of criminal responsibility, terms of the offence. They have defined it. There was a defence available which they have taken away. In my submission, they have made it clear that they do not want there to be a defence to this category of crime. It may seem harsh, it may be harsh, but that is what they have done. It is not the complete answer, of course, but if anyone actually got convicted and they had a genuine and honest belief, that obviously would be something that is highly relevant to sentence.
GLEESON CJ: One of the arguments Mr Game puts against you is that this sort of error could result from an act of positive deception on the part of the complainant, bearing in mind that the word “complainant” in this context is sometimes a little misleading in that sometimes it is not talking about a complaint within the ordinary meaning of that expression.
MR FREARSON: No, your Honour. It does not differentiate, that is the answer to it. There is no differentiation. If it is an act of positive deception – some of the earlier cases actually referred to complainants who falsely gave their age, and I just cannot think of a reference at the moment, but they said that it is one thing for a complainant to say how old she is, it is another thing to have sexual intercourse with someone who could be under age and then simply going ahead in circumstances where they do not actually know how old she is, they just rely upon the word of the complainant. One of the speeches talks about these bills being to protect not just the accused, but to protect the complainants from themselves. That is the rationale behind part of it. It is a protective measure.
GLEESON CJ: Mr Frearson, on this question of onus of proof, Judge Garling referred to three District Court judgments which went in somewhat different directions on this issue, as I understood it.
MR FREARSON: Yes, your Honour.
GLEESON CJ: He said that because of that he was going to express his own views very briefly. Do you happen to have the reasons for judgment in the case that came to the same conclusion about the defence and onus as Judge Garling came to? In other words, do you happen to have the judgment of the District Court judge that Judge Garling followed?
KIRBY J: Judge Goldring, I think.
GLEESON CJ: Perhaps if you could let us have that in due course.
MR FREARSON: Yes, your Honour.
GLEESON CJ: Not necessarily this afternoon, but I for my part would be interested to read what that District Court judge said about this question.
MR FREARSON: Well, my junior has it in her chambers, your Honour, but we can get that for you. It is here.
GUMMOW J: The reason for this drafting seems to be the gradation in sentence by reference to two criteria, age and aggravation. You could have drafted an offence which applied generally up to the age of 16, could you not, and with ‑ ‑ ‑
MR FREARSON: Well, they originally had that, your Honour. They used traditionally ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ and with a sentencing structure that then accommodated the sort of things we are talking about now.
MR FREARSON: Yes, your Honour. Traditionally, there was an offence under 10, it was originally carnal knowledge of a girl under 10, which was a former capital offence, and then you had carnal knowledge under 16, and now they have split it between – instead of having 10 and 16 it is now between 10 and 14, and 14 and 16, and they have done that for reasons ‑ ‑ ‑
HAYNE J: They derive at least immediately I think from 9 George IV, section 17, which is the 1828 Offences Against the Person Act.
MR FREARSON: Yes, your Honour.
HAYNE J: There was one section, two offences, one a felony under 10, one a misdemeanour under 12.
MR FREARSON: Yes, your Honour. I suppose it is not strictly relevant, but it is interesting that Justice Howie referred to this case of Dib.
GUMMOW J: But the other factor that was running here was the previous gender differentiation ‑ ‑ ‑
MR FREARSON: Yes, your Honour, but it is not ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ and that was being got rid of, and as you say, there was a particular provision there that went out all in the interests of some sense of uniformity.
MR FREARSON: Well, one of the stated aims was to create equality. That was one of the stated aims.
GUMMOW J: I am just left with the disquiet that whoever drafted this in New South Wales was not really conscious of the sort of problems the Chief Justice has been discussing with you.
MR FREARSON: Well, I cannot comment on that, your Honour.
GUMMOW J: Yes, of course you cannot.
MR FREARSON: In Dib (2002) 134 A Crim R 329, Justice Hulme in a case where he declined to accept a plea to manslaughter on the basis of provocation, he said there was no basis to do that, he then accepted that at least potentially honest and reasonable mistake had application, but in this particular case it did not because it did not make the act innocent, but I just point out that as a high‑water level of confusion when this exculpation seems to be applied, in my submission, inappropriately in all sorts of areas.
You would not have that type of confusion if it actually goes back to the Proudman v Dayman type situation where you do not go into the notion of presumed mens rea, you simply provide an exculpation because justice demands that. You provide the exculpation but you do not do it on the basis of any notion of mens rea, you just do it on the basis that, look, there is no real criminal responsibility here, so you absolve the person from criminal responsibility even though otherwise they would be guilty of the crime.
GLEESON CJ: These Code provisions that we mentioned earlier, Queensland, for example, predated Woolmington. I remember we were looking at some case or cases in Queensland which talked about the difficulty that they experienced there in respect of some of these Code provisions after Woolmington.
GUMMOW J: Yes. We looked at Mullen and ‑ ‑ ‑
MR FREARSON: My understanding is that in the Code provisions the onus is actually on the accused in relation to this type of offence and in relation to the statutory defences.
KIRBY J: It might be helpful to have reference to that.
MR FREARSON: I think that is so. So, New South Wales would be out of step with every other State that has a Code provision. There is a reference to the defences at page 17 of the respondent’s written submissions and at the footnotes at the bottom, 75 and 76, there is a reference there. The final thing I wanted to say is this that the reference to being on the register, for what it is worth, that was dealt with in a case of Elliott and Blessington [2006] NSWCCA 305 at 211. I think, by coincidence, it was Justice Howie and I think the effect of it was that that is just a consequence of the
legislation, that is not a matter that really should impact upon any other consideration. That is all I wish to say.
GLEESON CJ: Thank you, Mr Frearson. Yes, Mr Haesler.
MR HAESLER: Your Honours, just some points that were raised in questions and were not quite answered by Mr Game. I am not going to repeat what Mr Game said.
HAYNE J: No. You can have another go is what that presage is.
MR HAESLER: No, far from it. That is why I am here, your Honour, so that I do not repeat what was said by Mr Game.
GLEESON CJ: No, it is in the finest traditions of the New South Wales Bar, Mr Haesler. You go ahead.
MR HAESLER: In that case I will be appearing for my friend. In B v DPP [2000] 2 AC the reference to Thomas v The King can be found in the speech of Lord Nicholls at 464. He goes to some pains to repeat what was said by Justice Dixon, as he then was, in Thomas. Justice Kirby, I believe, asked a question about differences between the UK and the Australian approach. These were fairly succinctly summarised by Justice Dawson in Teh’s Case 150 CLR at about the middle paragraph.
KIRBY J: What page in Teh?
MR HAESLER: It is 591.
HEYDON J: That is 157.
MR HAESLER: Yes, 157 CLR at 591 in the decision of Justice Dawson.
KIRBY J: Thank you. You are dropping your voice a bit and I am just not hearing it.
MR HAESLER: I am sorry. The point that was made in relation to the difference between the United Kingdom and Australia was the effect of Morgan v The Queen on the line of authority which had stemmed from Tolson and the point being that this middle course that is spoken of of honest and reasonable mistake was no longer, after Morgan, applied in the United Kingdom.
The case of Ostrowski, in our brief look at it today, appeared to be a mistake of law and there was no reference that we could find to onus of proof as such, perhaps because it did concern a mistake of law. Certainly a number of members of the court made specific reference to Thomas v The Queen, but on slightly different passages than that which Lord Nicholls referred to.
Mistake also arose in Jiminez, as my friend said, but that mistake was as to whether he might fall asleep or not, so it had a particular factual resonance in a section which, like the present, provided no defence in its words. It had to be read into the words as a matter of construction.
Justice Kirby asked what the direction would be given in a case such as this. The evidence reveals a belief by the accused that the young woman was over 16. If that belief is true, honest and based on reasonable grounds, he cannot be convicted. The prosecution ‑ ‑ ‑
GUMMOW J: That appeared at page 502.
MR HAESLER: Yes. The prosecution must prove ‑ ‑ ‑
GUMMOW J: He said she told him she was 16 when he first met her at the beginning of the year.
MR HAESLER: Yes, that is the evidence. The direction, however, would then conclude with the prosecution must prove that the accused held no belief or that that belief was not reasonably based. Those two things ‑ ‑ ‑
GLEESON CJ: It probably does not matter, but the opening words of that draw a rather long bow. It would be more accurate to say the evidence reveals that the accused asserted to the police that the complainant told him she was over 16.
MR HAESLER: That she was 16, yes. In terms of general directions, they would have to be accommodated to the direct evidence.
GLEESON CJ: It really would not be much different from the direction that the trial judge gave them, except as to the onus of proof.
MR HAESLER: Yes, he reversed the onus of proof and it would appear that having said that he would put the onus on the prosecution in his judgment, he proceeded to give a direction which was in very similar terms to what would have been required under section 77(2) had 77(2) existed. That slip was not picked up by any of the counsel that appeared although it is clear that the prosecution were content to have this evidence before the jury and did not seek to have his Honour remove that direction or remove that evidence from the jury. The judges’ views here, we say, are significant, and they have already been touched on by Mr Game. I will not repeat what he said.
Your Honours should have a bundle of legislation from the other States, and we have set out how the other States and the Code have approached this particular problem, similarly with the United Kingdom and New Zealand. Justice Gummow raised the question of consensual activity between children of a similar age. Victoria, for example, which can be found at tab 5, page 51, section 45(4)(b) has a similar age or, what is sometimes referred to in English cases, as a petting defence.
KIRBY J: What?
MR HAESLER: A petting defence to cover the situation of young children engaged in sexual experimentation with a partner of the same age.
GLEESON CJ: But how do other States deal with this question of onus of proof?
MR HAESLER: They deal with it directly by specifying what the onus is.
GLEESON CJ: What do they specify?
MR HAESLER: Generally, they place the onus on the person raising the – as it would be then – a defence.
GLEESON CJ: On the accused?
MR HAESLER: On the accused.
GUMMOW J: We looked at the South Australian provision, did we not?
MR HAESLER: At the Criminal Code (Cth) 13.2 retains the onus with the prosecution.
KIRBY J: What is that section?
MR HAESLER: Section 13.2 is the onus provisions.
GLEESON CJ: It was asserted by your opponent that the effect of this decision in relation to the matter of onus of proof is that New South Wales is out of step with all the other States. Is that right?
MR HAESLER: The other States where onus of proof is an issue have legislation which specifically addresses the issue. So to that extent, New South Wales is out of step because it is addressed directly by the parliaments of the other States.
GLEESON CJ: Do they all put it on the accused?
MR HAESLER: Yes, I think they do, your Honour.
KIRBY J: That is the other States, but you tell us that the Commonwealth does not?
MR HAESLER: But not the Commonwealth Code. The Code is different, the point being that it is ‑ ‑ ‑
KIRBY J: Does the Commonwealth Code – remind me‑ apply to a federal indictable offence or not or only to a ‑ ‑ ‑
MR HAESLER: A federal indictable offence, but at the moment there are no federal indictable sex offences. There are sexual servitude type offences but they would not come within a similar compass to this particular set of legislation.
GLEESON CJ: What would the Commonwealth be doing legislating in relation to sexual activity between children or involving children?
MR HAESLER: They would not be.
GLEESON CJ: No.
MR HAESLER: No. That is the point we are making, unless it came into something like sexual servitude, overseas acts by Australians – overseas offences involving – my friend reminds me – telecommunications type offences and there are some which involve sexual acts which come within the purview of the Commonwealth, but for the moment, we simply say the Code has looked at this question and kept the onus.
GLEESON CJ: The Commonwealth Code has elaborate provisions designed to replace concepts of actus reus and mens rea, does it not?
MR HAESLER: Yes.
KIRBY J: I suppose you could say – I do not know whether it has much weight – that whereas the other States have provided for the onus of proof, that is an indication that they have accepted the responsibility of making the position clear and accepted the accountability by doing so.
MR HAESLER: And they have obviously discussed and passed laws which govern, one, the question of onus of proof but, looking just at the Victorian provisions as an example, some of the permutations that may arise in regard to offences involving children of similar age, for example. Nothing like that appears in the New South Wales provisions nor in the second reading speech or the debates. Mention was made by my friend of the word “absolute” appearing in the debates but that term is used directly in conjunction with the phrase “a child cannot consent”. There is absolutely no way a child can consent to sexual activity if they are under 16. So the word is the age of consent, nothing to do with mistake or anything of that nature.
HAYNE J: But at least a focus, I do not say “the” focus, of the second reading speech was upon equating offences between the same sex with offences between persons of opposite sex, and 77(2) as repealed was a provision which was directed only to heterosexual offences, was it not, because you had this expression “are not both male”?
MR HAESLER: Yes, and that is male ‑ ‑ ‑
HAYNE J: Yes, I understand.
MR HAESLER: So we only had, so far as the existing defence was, it was not uniform. We have explored this in the written submissions. I will not repeat them. The possibility of two different – if one looks simply to the history to say how we interpret the section, one could get, applying the logic of my friend’s argument, a different rule with regard to homosexual offences and a different rule with regard to heterosexual offences, which would defeat the very purpose of uniformity. Mention was made of possibility and attempt. As we understand the law, you can still be convicted even if what is attempted is physically impossible. The authorities, and I will not take you to them in any detail, start with ‑ ‑ ‑
KIRBY J: Are they referred to in your written submissions?
MR HAESLER: They are not, your Honour. It was a question that arose.
KIRBY J: You had better deal with this, because this is a serious argument.
MR HAESLER: Yes, your Honour. The authorities that we rely on are R v Donnelly [1970] NZLR 980, then a decision of the Victorian Court of Appeal in Britten v Alpogut [1987] VR 929 and then a decision which I can hand up to your Honours of R v Mai and Another 26 NSWLR 371.
GLEESON CJ: If a man had sexual intercourse with a female who was aged 17 and he believed she was aged 15, would he be attempting to commit an offence against section 66C(3)?
MR HAESLER: That is what we say is not precluded by this authority, your Honour. So the attempt could be charged. The key decision in Mai is that of Chief Judge at Common Law, Justice Hunt, from 381. He starts by approving Britten v Alpogut:
when applied to the general law of attempt, as being that, in circumstances where it is in fact physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes -
and then he goes on for a page and a half setting out the specific ‑ ‑ ‑
GLEESON CJ: I have had a look at this myself in the past. The concept of impossibility is somewhat fluent.
MR HAESLER: It is, your Honour, and “is in fact physically impossible for the accused to commit”, is the quotation. Reference was also made to Bergin v Stack 88 CLR and we say the answer can be found, perhaps succinctly, in the judgment of Justice Fullagar at 262, the midpoint of the page. It is also referred to by Justice Howie, this point, in the appeal books at 630 and 631.
KIRBY J: It would be pretty important for you to be able to rebuff the argument that has been put for the respondent that if the accused said, “Well, I thought she was over the age of 12” and that issue is left for the jury in defence of a very young child, that the accused could still then be liable to be punished for an offence of over 12 but under 14 or under 16.
MR HAESLER: Yes.
KIRBY J: Because if that is not the consequence of the statute, that immediately leads the mind to look to an objective age element because it could not be the purpose of Parliament in those cases that the person just walks away scot‑free. That would be ridiculous.
MR HAESLER: No, and the point was made by Justice Fullagar, I think:
that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed.
KIRBY J: What are you reading now?
MR HAESLER: That is Justice Fullagar at 262 of Bergin v Stack 88 CLR. His point is that if a different offence was being committed, you are not going to be able to avail yourself of the honest and reasonable mistake defence.
KIRBY J: This is dealt with very lightly, if at all, in the written submissions. Speaking for myself, I would be helped by some development of this matter because I think it is the most powerful argument that has been put for the respondent’s armoury for their interpretation and, at least for myself, it is quite important that you should be able to answer it if you can.
MR HAESLER: That is the short summary and of course we will accept that offer, your Honour, and that will be done forthwith. We would need seven days but if we could do it within that time?
KIRBY J: Yes.
MR HAESLER: Thank you, your Honour. Justice Heydon referred to section 77A of the Crimes Act as it now stands, the offence of incest. That offence requires that there be intercourse with a close family member who is of or above the age of 16 years. It would appear that if they are under the age of 16 one of the other sexual offence provisions, whether it be 61I, 61J, 61JA or 66C, in fact, would apply.
HEYDON J: My point is simply this though, that 78C(1) sets out a specific formula that is not to be found ‑ ‑ ‑
MR HAESLER: And it is headed “Defences”.
HEYDON J: Yes.
MR HAESLER: But again the taxonomy of the word “defence” is fluent unfortunately. It does not specify what the onus is and on whom the onus lies. It is our position that despite the use of the word “defence”, it does not rule out the possibility of honest and reasonable mistake.
HEYDON J: It uses the same formula as the State and Territory legislation does in relation to these carnal knowledge offences. The point is simply this, if the argument is, and I think Mr Game did deploy this argument, that Parliament must make it absolutely plain if it intends to wipe out a traditional defence, it looks a little curious that it was wiped out in 78C but not 66C. They were not enacted at precisely the same time but they are now part of the same Act on a closely related subject. The absence of it in one place suggests that it does not exist.
MR HAESLER: But again, 78C did not direct itself to the question of age. It is headed “Defences” but it only mentions one, the consent ‑ ‑ ‑
HEYDON J: It is true that it is a different factual integer but it is still a method of dealing ‑ ‑ ‑
MR HAESLER: As an interpretative device it has some value but when one considers the interpretative device which was removed, 77(2) and its import and the import of silence, then there is very little guidance so far as this legislation is concerned as to what the legislature was intending and it is that question of silence that comes up, we say, particularly with regard to section 30(1)(a) of the Interpretation Act which my friend said no doubt you do not get revival of the common law as a consequence.
A similar question arose in a South Australian case, R v Gallagher 41 SASR 73. The South Australians had a provision that was similar to 30(1)(a). At page 83 Justice Zelling addressed at the last paragraph on that page the section which was the equivalent and there the section which was said to have been repealed only existed for certain purposes and not for others, we say exactly the same as section 77(2). He made the point which we would adopt that the Interpretation Act provision simply does not speak to a situation such as this, in particular, when 77(2) was used an interpretative aid as to whether the common law applied in relation to some offences and not others and it was used as an interpretative aid for those specific offences which were mentioned in section 77(2) and not others, as has been pointed out.
In the case of 77(2) there was no specific – the common law does not apply and were one to apply section 30 to it, to assume that the common law was revived, we say, misconstrues the import of that interpretative provision. What really occurs is simply that for certain offences there was an interpretative guide in 77(2) as to whether the common law applied or not. The common law was still operating and still operating on male offences, as Chard v Wallis made clear, and in that silence following the repeal of section 77(2) the common law was free to operate absent the interpretative provision which was in 77(2).
A similar point was made in the case my friend has in his authorities and referred to, Marshall v Smith 4 CLR 1617, in the judgment of Justice Isaacs at the top of page 1638 that where there is silence – it might be worth just noting that, but the fifth line down:
If the common law is revived it is because it springs up again of necessity from the fact of there being no existing Statute law on the subject making a different provision, and not because the repealing Act contains any active restoration of the former law ‑ ‑ ‑
GUMMOW J: You are not talking about the common law springing up again, are you?
MR HAESLER: No, the common law has a job to do, we say, and the common law which has existed and the principles of interpretation which have existed because the Act is silent and it is that silence which could have been filled by the legislature if they had wanted to adopt the position advocated by the respondent, but where there is this silence, then we say that it is not to be filled by a presumption that somehow they intended that there be no defence available on this question of age.
Without going through the full question and the matter of onus I should draw the Court’s attention to what was said by Justices Wilson, Dawson and Toohey in Zecevic v The Queen 162 CLR 645 at the bottom of 658. My friend took you through some of the history post-Woolmington and it is set out in detail in the written submissions but our position is quite simple. It is at the third last line from the bottom of page 658. The respondent’s arguments here, we say, can be dismissed by the statement:
Moreover, after a period of some uncertainty –
which he has sought to outline –
it has been established in He Kaw Tehv The Queen [1985] HCA 43; (1985) 157 CLR 523 that if the question of honest and reasonable mistake arises, the ultimate burden rests upon the prosecution to prove the absence of exculpatory belief.
Since Teh we say whatever uncertainty may have arisen trying to reconcile the law in relation to regulatory offences with Woolmington v DPP and the English and Australian authorities, this Court has settled the issue and that has been acted upon time and time again by this Court and by courts of other jurisdictions. Your Honours, that is the reply.
GLEESON CJ: Thank you, Mr Haesler. We will reserve our decision in this matter and we will adjourn until 10.15 on Thursday, 10 March in Canberra.
AT 3.31 PM THE MATTER WAS ADJOURNED
0
5
0