CTM v The Queen

The High Court of Australia considered an appeal by CTM against his conviction for sexual intercourse with a person aged between 14 and 16 years, contrary to s 66C(3) of the *Crimes Act 1900* (NSW). The appellant had been acquitted of more serious charges but found guilty of this lesser offence. The complainant was 15 years old at the time of the incident, and the appellant was 17.

The central legal issues before the High Court were whether the common law defence of honest and reasonable mistake of fact applied to the offence under s 66C(3) of the *Crimes Act*, and if so, what onus and standard of proof rested on the accused to raise such a defence. Specifically, the Court had to determine if the accused was obliged to establish the mistake, "enliven" the issue, or adduce evidence in support of it, and whether the issue had been sufficiently raised at trial to warrant a direction to the jury. The Court also considered the application of the proviso in s 6(1) of the *Criminal Appeal Act 1912* (NSW), which allows an appellate court to dismiss an appeal if it finds no substantial miscarriage of justice.

A majority of the High Court, comprising Gleeson CJ, Gummow, Hayne, Heydon, Crennan, and Kiefel JJ, upheld the appellant's complaints of legal error regarding the jury directions. However, they ultimately affirmed the conviction, finding that no substantial miscarriage of justice had occurred. This decision was based on the majority's assessment that, despite the misdirections, the evidence was such that the jury would inevitably have convicted the appellant of the s 66C(3) offence. Kirby J, in dissent, took the view that a misdirection on the legal ingredients of an offence and the onus and standard of proof constituted a miscarriage of justice, entitling the appellant to a retrial.

The appeal was dismissed.