Kyle Joseph Mifsud v Diana Molnar; Kyle Joseph Mifsud v Eva Maria Sara
[2012] ACTMC 1
•13 June 2012
KYLE JOSEPH MIFSUD V DIANA MOLNAR
AND
KYLE JOSEPH MIFSUD V EVA MARIA SARA
[2012] ACTMC 1 (13 June 2012)
CRIMINAL LAW - strict liability - mistake of fact – statutory interpretation - inconsistency between general mistake of fact defence under Criminal Code and specific mistake of fact defence under Prostitution Act 2008 – construction of s36 of Criminal Code – significance of reference to “the conduct making up the physical element” in construction of s36 – whether generalia specialibus non derogant principle to be applied to resolve inconsistency – whether Criminal Code defence to be read as if requiring Prostitution Act requirements to be met.
Prostitution Act 2008 (ACT) ss 3A, 20(1), 20(3), 22
Criminal Code 2002 (ACT) ss 8(1)(b), 23(2), 36, 56, 58, 59(c)
Crimes Legislation Amendment Act 2004 (ACT) s7
Legislation Act 2001 (ACT) ss138, 139
The Criminal Code (WA) s24
Casey v Alcock [2009] ACTCA 1
R v Fearnside [2009] ACTCA 3
Lappan v Hughes [2003] WASCA 173
Goodwin v Phillips (1909) 7 CLR 1
Maybury v Plowman (1913) 16 CLR 468
Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681
R v JS [2007] NSWCCA 272
Mei Ying Su v Australian Management Authority No 2 [2008] FCA 1485
No. CC 05856 of 2012
No. CC 05857 of 2012
Magistrate: Morrison
Magistrates Court of the ACT
Date: 13 June 2012
IN THE MAGISTRATES COURT OF THE )
) No. CC 5856 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: KYLE JOSEPH MIFSUD
Informant
AND: DIANA MOLNAR
Defendant
IN THE MAGISTRATES COURT OF THE )
) No. CC 5857 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: KYLE JOSEPH MIFSUD
Informant
AND: EVA MARIA SARA
Defendant
ORDER
Magistrate: Morrison
Date: 13 June 2012
Place: Canberra
THE COURT ORDERS THAT:
(a)Each of the defendants is not guilty and the information against each is dismissed.
These reasons have been prepared in accordance with a non-publication order made on 14 June 2012.
Introduction
Each of the defendants has been charged under s20(3) of the Prostitution Act 2008 with permitting a child, namely AB to provide commercial sexual services.
Consent was given to summary disposal of the cases and to the charge against each defendant being heard together with the other.
It is not in dispute that Ms AB provided commercial sexual services from premises known as “Exotic Studio” in Canberra on the evening of 14 September 2008. Ms AB was then aged 17. Tragically she was discovered dead in a room at those premises during the day on 15 September 2008. It is not in dispute that 14 September 2008 was Ms AB’s first night working at those premises.
What is in dispute is each of the following:
a.In the case of the Defendant Sara – whether the evidence proves beyond reasonable doubt that her conduct amounted to permitting Ms AB to provide commercial sexual services; and
b.In the case of both defendants whether the stated belief of each of them as to the age of Ms AB means that they are not guilty of the offence charged.
I have framed the second of the issues in dispute above in the way I have because there is some complexity around the application of the Criminal Code of the Australian Capital Territory (“ACT Criminal Code”) and the statutory defence in s22 of the Prostitution Act 1992 (“Prostitution Act”) – matters to which I will come shortly.
After hearing the evidence on 27 April 2012 it was agreed that both prosecution and defence would provide written submissions. It was apparent from those submissions that prosecution and defence took different views as to the interaction between the provisions of the ACT Criminal Code and s22 of the Prostitution Act.
As a result I invited further submissions on that point of law and both prosecution and defence provided further written submissions.
Application of s36 of ACT Criminal Code
The conflict on the question of law is somewhat technical. On the one hand, the provisions of the ACT Criminal Code provide for a general defence of mistake of fact with broad application to criminal proceedings. On the other hand, the provisions of the Prostitution Act – in particular s22 – deal with a specific defence about age to charges under s20 of the Prostitution Act dealing with children.
The interaction between the 2 laws is important for both prosecution and defence in this case because of the significant difference in what must be proved and by whom.
Section 36 of the ACT Criminal Code makes general provision for a defence of mistake of fact in some circumstances. Relevantly a person is not criminally responsible for an offence if they were under a mistaken but reasonable belief about facts which if they had existed would mean that no offence was committed. In this case the defendants say they were under a mistaken belief that Ms AB was over the age of 18 and that, if she had been over 18 then no offence would have been committed by them.
If s36 of the ACT Criminal Code applies, then because of the operation of other sections of the Code – in particular ss56 and 58 – once a defendant has pointed to evidence that suggests a reasonable possibility that they were under a mistaken belief; there is an onus on the prosecution to disprove the defence. In other words, in this case, if s36 applies in the usual way, there is an onus on the prosecution to prove beyond reasonable doubt either:
a. that the defendants were not under a mistaken belief about Ms AB’s age; or
b.if they were under such a mistaken belief, that their mistaken belief was not reasonable.
The specific defence under the Prostitution Act is materially different. Under s22 of that Act it is a defence to a charge under s20(3) (that being the section under which the present defendants have been charged) only if it is established that the defendants:
a. took reasonable steps to ascertain the age of the child concerned; and
b. believed on reasonable grounds that the child had attained the age of 18 years.
It can be seen that the defence is materially different because the Prostitution Act defence requires that some active steps, which must also be reasonable, be taken by a defendant to ascertain the age of the person concerned.
The difference between the defences is made more significant because of the way in which the onus of proof applies.
By virtue of s59(c) of the ACT Criminal Code a legal burden of proof is placed on the defence where the relevant law “...expressly .... requires the defendant to prove the matter.”
Whilst s22 of the Prostitution Act does not speak in terms of requiring the defendant to “prove the matter”, the use in that section of the expression “if it is established that the defendant” did and believed certain things is in my opinion sufficient to trigger the application of s59 of the Code. It follows that, if s22 of the Prostitution Act is relevant, each defendant would need to prove, on the balance of probabilities, both that she took reasonable steps to ascertain the age of Ms AB, and that she believed Ms AB was over 18.
I note that the Defence does not argue that the burden imposed by s22 is other than a legal burden for the purposes of the Code.
As can be seen from what I have just said the difference between the 2 legal positions argued for by prosecution and defence is very significant in this case. If the prosecution argument is accepted the onus is on the defendants to prove on the balance of probabilities that they took reasonable steps to ascertain the age of Ms AB and that they believed on reasonable grounds that she had reached 18.
If the defence argument is accepted the onus is on the prosecution to prove beyond reasonable doubt that the defendants were not under a mistaken belief that Ms AB was over 18, or to prove beyond reasonable doubt that, if they did have that mistaken belief, their mistake was not reasonable.
Neither of the laws to which I have referred say that the other law does not apply, but it is apparent that if s36 of the ACT Criminal Code applies, then s22 of the Prostitution Act is rendered irrelevant in the circumstances of this case. In other words the defence under s36 of the Code represents a lower threshold for the defendants to meet than the test for the defence under the Prostitution Act.
Legislative History
I will deal with each argument in turn but it is convenient to start with some observations on the legislative framework.
The Criminal Code 2002 was passed by the Legislative Assembly of the Territory on 10 December 2002. The commencement date of the first of its provisions to be commenced was 20 December 2002. The Code makes sweeping and fundamental changes to the way in which criminal responsibility for all offences in the Territory is to be established.
Those changes are given effect to by Chapter 2 of the Code – headed General Principles of Criminal Responsibility.
Section 6 of the Code says that the purpose of chapter 2 is to “codify general principles of criminal responsibility under territory laws”; that the chapter contains “all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created”; and further that the chapter “applies to all offences against this Act and all other offences against territory laws”.
It is clear that the principles referred to are not entrenched in such a way that they can never be over-ridden by the Parliament. The ACT Criminal Code closely follows the Criminal Code (Commonwealth) (“the Commonwealth Code”) which commenced in 1995. There are examples in the Commonwealth jurisdiction of the Parliament having chosen not to apply the corresponding general principles of criminal responsibility to certain offences – see for example s769A of the Corporations Act 2001. In that case the Federal Parliament passed legislation expressly providing that certain provisions of the Commonwealth Code do not apply to certain offences under the Corporations Act.
Prior to the introduction of the Commonwealth Code an extensive review of all Commonwealth legislation which created criminal offences took place. Where necessary that legislation was amended so that it meshed appropriately with the overarching requirements of the Commonwealth Code.
The introduction of the ACT Criminal Code was approached differently. That approach is set out in the explanatory statement in this way:
The Bill sets out general principles of criminal responsibility which will eventually apply to all Territory offences. The principles are contained in chapter 2 of the Model Criminal Code which has been endorsed by the standing committee of Attorneys-General. The principles will not apply to all offences immediately because there will be a large number of consequential amendments required in relation to many offences contained in legislation administered by various portfolios. This is necessary because existing offences are drafted on the basis of different principles. It has been decided that the principles will first apply to offences created after the Code commences.
To give effect to that staged approach to its application the ACT Criminal Code contained delayed application provisions. They include that the Chapter 2 criminal responsibility provisions are to apply to offence-creating sections in legislation which are omitted and remade or where some later Act expressly provides for them to apply – see s8 of the Code.
Hence, when the ACT Criminal Code first came into force it did not apply to offences against the Prostitution Act.
However in 2004 the Parliament of the Territory passed the Crimes Legislation Amendment Act 2004 (the “2004 Amending Act”) which, amongst other things amended the Prostitution Act. That amendment omitted and remade s20 of the Prostitution Act (in the form in which it currently appears) with the result, as the note inserted into s3A points out, that chapter 2 of the ACT Criminal Code thereafter applied to offences against that s20.
The explanatory statement which accompanied the 2004 Amending Act makes comment about the application of the Code to offences under both s20(1) and s20(3) of the Prostitution Act. The defendants here are charged under s20(3). Section 20(1) deals with an offence of prostitution of a child under 12 years and is not relevant to the charges before the Court but it is useful in illuminating the different approach taken for such offences. The relevant parts of the explanatory statement read as follows:
Subsection (1) makes it an offence for a person to cause, permit, offer or procure a child under the age of 12 years to provide commercial sexual services. Absolute liability applies to subsection (1)(b), the age of the child. Again, this does not render the whole offence an absolute liability offence. The effect of applying absolute liability to this element of the offence is that it is not necessary to prove that the defendant had any awareness (or any other fault element) about the age of the child involved and it is not relevant that he or she may have made a mistake about the age of the child. ........
Subsection (3) makes it an offence for a person to cause, permit, offer or procure a child between 12 and 18 years of age to provide commercial sexual services. Strict liability applies to subsection (3)(b), the age of the child. Again, this does not render the whole offence a strict liability offence. The effect of applying strict liability is that it is not necessary to prove that the defendant had any awareness (or any other fault element) about the age of the child but the defence of mistake of fact applies (s36, Criminal Code 2002). Mistake of fact is open to the defendant only if the person considered whether or not facts existed and was under a mistaken but reasonable belief about the facts. (emphasis added).
As can be seen from the above the 2004 Amending Act applies absolute liability to the age component of an offence under s20(1) and strict liability to the corresponding component of an offence under s20(3). The difference in effect is significant. That difference is explained in the statement where it says that, in the case of absolute liability (i.e. for a child under 12) it is not necessary to prove that a defendant had any awareness about the age of the child, and it is not relevant that he or she may have made a mistake about the age of the child; but that in the case of strict liability (i.e. for a child of 12 or over) it is not necessary to prove that a defendant had any awareness about the age of the child and the defence of mistake of fact applies. The statement goes on to explain that the mistake of fact defence is open to a defendant if the defendant considered whether or not the facts existed and was under a reasonable but mistaken belief about the facts. That explanation of the mistake of fact defence is in the terms set out in the ACT Criminal Code and not in the terms set out in the Prostitution Act.
It is worth noting at this point that the ACT Criminal Code expressly provides, both in relation to absolute liability offences and strict liability offences, that the existence of absolute liability or strict liability does not make any other defence unavailable – see s23 and 24. It follows that, had the legislature chosen to apply absolute liability instead of strict liability to the offence under s20(3) of the Prostitution Act then the current argument would not arise. By virtue of absolute liability applying to the age of the child the mistake provisions of the Code would be excluded, but the mistake provisions of the Prostitution Act would still apply.
Application of s36 of ACT Criminal Code – Prosecution Arguments
As I understand it the prosecution argument in favour of the test being the higher test is put on 3 alternate grounds:
a.Firstly, that the defence in s36 of the Code is not triggered because of the particular way in which that section is expressed;
b.Secondly, even if the s36 Code defence is triggered, because of the inconsistency between the specific provisions of s22 of the Prostitution Act and the general provisions of the Code, the former prevails and ousts the latter; and
c.Thirdly, even if both defences are available, the provisions of s36 of the Code dealing with what is a reasonable belief are to be read against the provisions of s22 of the Prostitution Act – requiring the defendant to have taken reasonable steps to ascertain the age of the child.
Application of s36 of ACT Criminal Code – First Prosecution Argument
The first argument put forward by the prosecution in favour of the application of the defence in the Prostitution Act is based upon the use of the word “conduct” where it appears in the mistake of fact provisions of s36 (1)(a) of the Code. As I understand the argument it is this:
a.the mistake of fact defence in the Code is only triggered when there is a mistaken but reasonable belief about facts “when carrying out the conduct making up the physical element”; (emphasis added) and
b.in the present case the physical element is not one of conduct but rather one of circumstance – that is that what was done took place in circumstances where Ms AB was under 18; and
c.therefore the mistake of fact defence in the Code does not apply.
In other words, according to the prosecution argument, the mistake of fact defence is not available because any mistake is about a fact in relation to a circumstance and not one in relation to conduct.
One feature of all of the arguments advanced by the prosecution is a submission that that the interpretation for which it presses is an interpretation which best achieves the purposes of the Prostitution Act. This argument refers me to the UN Protocol for the Rights of the Child and the provisions of the ACT Legislation Act 2001 about working out the meaning of an Act. The overall thrust of the submission in this area is that the interpretation pressed for by the Defence would weaken the protection of children under the Prostitution Act and that such an interpretation does not best achieve the purpose of the Prostitution Act.
In its submissions, the Prosecution relies upon ss 138 and 139 of the Legislation Act 2001. Those sections say that when working out the meaning of an Act the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. The expression “working out the meaning of an Act” is defined to include “finding the meaning of an Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable”. As can be seen, that part of the legislation is, on its face, in very broad terms.
There are some difficulties for the Prosecution in its reliance on this statutory interpretation argument.
The first hurdle for the Prosecution in this submission arises because the Court is asked in this case to determine what is the combined effect of 2 separate pieces of legislation – that is the Prostitution Act and the ACT Criminal Code – or perhaps even 3 pieces of legislation if one treats the 2004 Amending Act as another Act. Is an enquiry to work out the meaning of the Act to be directed to the purpose of the Prostitution Act, or the purpose of the ACT Criminal Code, or the purpose of the 2004 Amending Act?
Whilst a child protection purpose implied in the Prostitution Act might weigh in favour of one construction, why should it be given precedence over a broad codification-of-criminal laws purpose implied in the Code which might weigh in favour of another construction?
But the second, and more significant, hurdle for the prosecution is that despite the broad terms of ss138 and 139 of the Legislation Act 2001, they have been held not to authorise a court to rewrite legislation. That is to say a court cannot depart from the unambiguous meaning of the language used in a legislative provision or read in words which change its meaning. Any alternate construction pressed for must be one which is open having regard to the words used in the legislation - see the decisions of Besanko J (with whom Refshauge J agreed) in Casey v Alcock [2009] ACTCA 1 (23 January 2009) and of Besanko J (with whom Gray and Penfold JJ agreed) in R v Fearnside [2009] ACTCA 3 (24 February 2009).
I return to the first of the grounds raised by the prosecution. In my opinion, the construction of s36 pressed for by the prosecution is not one which is open having regard to the clear words used in the legislation and I reject the Prosecution argument. If the prosecution argument was correct it would follow that the mistake of fact defence would only be available in relation to a physical element of conduct and not in relation to any other physical element for any offence.
Such an interpretation is clearly at odds with s23(2) of the Code. That section says that if the law creating an offence provides that strict liability applies to a particular physical element then the defence of mistake of fact under section 36 is available in relation to that physical element.
The opening to S36 also speaks in general terms of “an offence that has a physical element for which there is no fault element”. The language employed in both sections speaks broadly of physical elements in general terms. I am not persuaded that the proper interpretation of the Code requires them to be read down to refer to something other than what they clearly say.
I should add here that nothing in s36 itself provides for its reach to be limited in any way. That is to be contrasted with e.g. s24 of The Criminal Code of Western Australia which says that the operation of its mistake of fact section may be excluded by the express or implied provisions of the law relating to a particular subject. (I note in passing that a decision of the Western Australian Court of Appeal was to the effect that the proviso to s24 of the WA Code to which I have just referred had the effect of giving specific statutory defences effect over the general mistake of fact provisions in the decision of the WA Court of Appeal in Lappan v Hughes [2003] WASCA 173.) Under the ACT Criminal Code the mechanism for excluding the mistake of fact defence is to designate an offence or an element of it as one of absolute liability, as indeed has been done for offences under s20(1) of the Prostitution Act .
In my opinion the purpose of the reference in s36(1)(a) to “conduct” is to be gleaned from the temporal context. The reference to “when carrying out the conduct making up the physical element” is not intended to restrict the application of the section to a mistake in relation to conduct. Rather the use of those words recognises that offences have some physical element of conduct and is intended to fix a point in time - being the point in time when that conduct is carried out – as being the time when the person must have been under the mistaken belief.
Lastly I should add here that the Commonwealth Code, upon which the ACT Code is largely based, has been in operation now for a period of 14 years. The prosecution has not referred me to any authority suggesting that the corresponding strict liability provisions of the Commonwealth Code has been interpreted in the limited manner contended for by the prosecution.
Application of s36 of ACT Criminal Code – Second Prosecution Argument
The second argument advanced by the Prosecution is that, because of the inconsistency between the specific provisions of s22 of the Prostitution Act and the general provisions of the ACT Criminal Code, the former prevails and ousts the latter. In support of this argument the prosecution again submits that s22 of the Prostitution Act promotes the purpose of the legislation – meaning presumably the purpose of Prostitution Act.
Whilst not expressly raised in the prosecution submissions it seems to me that this ground for argument is based on the application of the principle generalia specialibus non derogant and I have considered it on that basis. The principle is described by O’Connor J in Goodwin v Phillips (1909) 7 CLR 1 at page 14 in these terms:
Where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.
The rationale underlying the generalia specialibus approach was referred to with approval by Barton ACJ in Maybury v Plowman (1913) 16 CLR 468 at 474 in these terms:
The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and provided for all of the circumstances of that special case; and, having done so, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.
However the application of the principle is not conclusive of the interpretation to be given to competing legislative provisions. The Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 put it in these terms:
... even where the earlier statute deals with a particular and limited subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact or is superceded, and the cases in which the latter has been held are almost as numerous as the former.
When inviting further submissions from prosecution and defence I drew to their attention the contents of the explanatory statement accompanying the 2004 Amending Act to which I referred earlier.
In their further submissions the prosecution says that the statement in the explanatory memorandum about the effect of making an offence under s20(3) one of strict liability is in 2 parts. It submits that the first part of the statement - saying that it is not necessary to prove that the defendant had any awareness about age - is correct, but that the second part of the statement – saying that the mistake of fact defence under s36 of the Criminal Code applies – is not correct.
The prosecution submission goes on to refer to the decision of Spigelman CJ in R v JS [2007] NSWCCA 272 at 141 where his Honour makes reference to the use of Second Reading Speeches and Explanatory Memoranda as aids to interpretation. His Honour was there dealing with an assertion in such material that no change to the common law was intended by the relevant legislation. He was critical of reliance upon such material as an aid to interpretation, describing them as rarely if ever useful. He expresses himself in these terms:
143 Statements of the character that the drafter of the legislation did not intend to change the prior operation of the law are rarely, if ever, useful, let alone entitled to significant weight. Such an assertion makes two assumptions. First, that the author knows completely and precisely how the previous provision has been and will be applied. Secondly, that the author has stated the new provision with indisputable comprehensibility. Each assumption reflects a conceit to which drafters of texts are prone when appraising their own work. Each assumption is rarely, let alone generally, applicable.
There are difficulties for the prosecution in relying upon the authority of R v JS as a basis for disregarding the contents of the explanatory memorandum in this case.
The first is that I have concluded that the proper interpretation of s36 of the ACT Criminal Code is that it is effective to make the mistake of fact defence available when strict liability applies to a physical element other than conduct. I reached that conclusion on the basis of the clear meaning of the words used in that legislation.
Having reached that conclusion, an argument that, notwithstanding s36 can apply to a physical element of circumstance, the generalia specialibus principle requires the mistake defence in the Prostitution Act to be read as superceding the mistake defence in the Code is rendered untenable by what is contained in the explanatory statement.
When the explanatory statement expressly refers, as it does, to the application of the Code, and, in accordance with the conclusion I have reached, also expressly and correctly refers to the consequences of that application, there is no room for the rationale on which the application of the generalia specialibus principle is based.
In other words and for present purposes, it cannot be said that in deciding to apply the ACT Criminal Code to s20 of the Prostitution Act the parliament did not intend to alter the defence which had been specifically regulated by the Prostitution Act when in the 2004 Amending Act the Parliament has expressly referred to the application of the Code and the consequences of that application of the Code have been specifically referred to in the explanatory statement. In such circumstances the explanatory statement stands, not as an indicator of the intention of a legislative drafter, which is properly the subject of the criticism by Spigelman CJ, but rather as a simple statement of the fact that the attention of the legislature has been directed to the consequences of applying the Code which include that the mistake of fact provisions of it will apply.
It follows that the generalia specialibus principle has no application and the prosecution’s second basis for argument also fails. It will be apparent that the conclusion I reach on this prosecution argument is consistent with the notion that the Code is intended to apply principles of criminal responsibility consistently across all offences in the Territory to which it is applied.
By way of additional support for the conclusion I have reached on this prosecution argument, I note that earlier in the decision in R v JS to which I was referred by the prosecution Spigelman CJ had this to say about interpreting legislation, (omitting internal references):
142 The task of the courts is to interpret the words used by the Parliament. It is not to divine the intent of the Parliament. The distinction between interpretation and divination is an important one. The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. At times that will require the court to refuse to implement an express statement as to what the Parliamentary intention is.
It is in my opinion clear, based on the words used in the 2004 Amending Act, that the Parliament meant for the mistake of fact defence in the ACT Criminal Code to apply to offences under s20(3) of the Prostitution Act. To give the words used any other interpretation, however well-meaning such an interpretation might be, is to embark upon a process of attempting to divine the intent of the Parliament.
Application of s36 of ACT Criminal Code – Third Prosecution Argument
The third argument of the prosecution is that if s36 of the ACT Criminal Code applies then what constitutes a reasonable belief for its purposes is to be determined in accordance with the requirements of s22 of the Prostitution Act and therefore requires a defendant to have made reasonable enquiries.
The meaning of the equivalent mistake of fact provision in the Commonwealth Code was analysed by Reeves J in the Federal Court in Mei Ying Su v Australian Management Authority No 2 [2008] FCA 1485. His Honour after referring to a range of authorities reached the following conclusions about the word reasonable:
a.It does not involve the hypothetical ordinary or reasonable person test;
b.It requires that the belief be that of the accused;
c.It requires that the accused’s belief be objectively reasonable i.e. rational, based on reason, or capable of sustaining belief; and
d.It requires the objective reasonableness of the accused’s belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused’s personal attributes and the information available to him or her at the time.
In that case it was argued that the circumstances required the defendant to make enquiries, that the enquiries would have revealed his mistake, and that that should be taken into account in determining whether the defendant’s mistaken belief was reasonable. His Honour determined that it would be wrong to take into account the information that a reasonable person would have obtained by enquiry, saying that “such a requirement would be likely to render nugatory the defence of mistake of fact ..... because the person’s enquiries are, of necessity, almost always likely to reveal the mistake”.
For the same reasons I reject the prosecution submission that the application of s36 of the ACT Criminal Code in this case required the defendants to have made enquiries about the age of Ms AB.
Application of s36 of ACT Criminal Code – Conclusion
For the reasons given the conclusion I have reached is that the defence in the ACT Criminal Code is, as a matter of law and according to its terms, available to persons charged with offences under s20(3) of the Prostitution Act.
I accept that the ruling I have made may be regarded by the Territory Executive as an undesirable result of the intended interaction of the ACT Criminal Code and the Prostitution Act. I will publish a suitably edited version of these reasons and I direct that a copy of them be sent to the Department of Justice and Community Safety.
The result of my ruling on the application of the Code is that each defendant in this case is entitled to be acquitted unless the prosecution can either:
a.prove beyond reasonable doubt that she did not believe that Ms AB was over 18; or
b.prove beyond reasonable doubt that her belief was not reasonable.
Analysis of Evidence
Having made that ruling I turn to the facts and evidence in the case.
As indicated at the outset of these reasons the dispute between prosecution and defence in relation to both defendants is whether the stated belief of each of them as to the age of Ms AB means that they are not guilty of the offences charged. If they are not entitled to the benefit of that defence then in relation the defendant Sara there is a second question to be addressed and that is whether her involvement amounted to permitting Ms AB to provide commercial sexual services. It is convenient to deal first with the age question.
Evidence in the prosecution case was given by Alan Pang, Detective Senior Constable Kyle Mifsud, Isabella Logan and Detective Senior Constable Jason Murray. In addition the following material was also put into evidence in the prosecution case with the consent of the defendants:
a.A handwritten statement by the defendant Sara dated 15 September 2008;
b.The original audio record of an interview with each defendant along with a transcript of it as an aide memoire;
c.A statement by Mrs CD who is the mother of Ms AB;
d.A photograph of Ms AB taken by Mrs CD on the evening of 14 September 2008;
e.Photographs of the body of Ms AB taken shortly after her death had been discovered.
Both of the defendants gave evidence in the defence case.
Alan Pang was a driver employed by Exotic Studios. He picked up Ms AB from her home on 14 September 2008. In his evidence for the prosecution Alan Pang said that he picked up Ms AB from her home at about 7.30pm on that day. He recalls that Ms AB spoke to him in the car and told him that she was from Kalgoorlie, that she had 2 children and that she had broken up with her boyfriend. She used the name Amanda, which he assumed to be what he described as a “working name”. Under cross examination Mr Pang said that he thought Ms AB was older than 17 and was probably over 20.
The evidence of both defendants was to the effect that they had asked Ms AB her age and had believed that she was over 18.
The defendant Molnar said that she interviewed Ms AB on her arrival at Exotic Studios. She said that was her usual practice for new girls. She said that she asked Ms AB if she had worked in the industry before and was told that she had not. She said that Ms AB volunteered to her that she had 2 children. In her recorded interview she told police that Ms AB had told her either that she was 20 or 21 and in both her interview and her oral testimony she said that she had no reason to believe that Ms AB was under 18.
Under cross examination the defendant Molnar agreed that she had not asked to see any identification. She was asked whether she had any suspicion about Ms AB’s age, including because of being told (by the defendant Sara) that she had said she was 19, when Ms AB herself had said she was 20 or 21. The defendant Molnar said that she had no such suspicion. Under cross examination it was put to her that it is difficult to gauge the age of young people. She did not at first agree with that proposition, although later she accepted the proposition that someone who appears to be 21 might in fact be only 17. She also accepted later under cross examination that she could not be certain that Ms AB was 20 or 21, but she reiterated that she had believed her to be that age.
In her recorded interview the defendant Molnar had accepted that it can be difficult to determine a person’s age. In particular the following exchange took place in that interview:
Q165 You also mentioned in relation to suspecting girls are under-age, that you had asked previously for girls to provide identification?
A165Yeah, on a few occasions.
Q166When you say a few, can you elaborate on that? How often would you have suspicions about a girl’s age?
A166 Well, most of them – most of them I haven’t doubted you know. Like, you can usually tell. But because seventeen, eighteen, nineteen, twenty is – is, um so close, you know what I mean ........
Q167Yep.
A167You can’t always tell. Obviously if somebody is thirty, they’re not going to look eighteen or seventeen are they.
In another part of that interview, as part of Q and A 74 the defendant Molnar, after speaking about other things, asks the interviewer “Did she really have children or not”. The interviewer replies “No”, and the defendant Molnar responds with: “See? They can tell you anything they like.”
In giving that answer the defendant Molnar appears to accept, at least at the time of that interview, that what she was told by girls working at the premises might be unreliable. That matter was not explored in cross examination but it appears to me to be a commonsense proposition, and I have approached the evidence on the basis that both defendants would have known at the time of the alleged offences in September 2008 that what they were told by girls working at the premises might be unreliable.
In her oral testimony the defendant Sara said that in a conversation with her Ms AB told her that she was 19. She said that she had no suspicions about the age of Ms AB adding that she looked 19 or 20. Under cross examination the defendant Sara was evasive in answering questions about whether she accepted it was sometimes difficult to tell if a person was over or under 18, but reiterated that she believed Ms AB to be over 18.
The other evidence relevant to the apparent age of Ms AB is the photographs of her. I have concluded that the after death images do nothing to assist in any assessment of how she appeared at the relevant times earlier in the night.
The photograph of Ms AB taken by her mother before she left home that night is Exhibit P9. It depicts an attractive and well dressed young woman. Perhaps the only thing which can be said with certainty about the photograph is that there is nothing in it which would necessarily lead a viewer to conclude that the person in the image was likely to be under 18.
In accordance with the ruling made earlier in these reasons, before I can find either defendant guilty of the offences charged the Prosecution evidence must satisfy me beyond reasonable doubt either:
a.that the defendant was not under a mistaken belief that Ms AB was over 18; or
b.if she was under such a mistaken belief, that her mistaken belief was not reasonable.
Each of those questions must be assessed separately. The first is subjective – looking to what each defendant herself actually believed at the relevant time.
The Criminal Code does not define what is meant by “believe” or “belief”. The concept of believing something to be true is not the same as that of knowing the thing to be true. At law a person may believe that something is the case while still harbouring a lingering doubt about it.
In their evidence each of the defendants was at times evasive and reluctant to concede what I regard as a common sense proposition – that is that there are obvious difficulties in assessing the precise age of young people from their appearance and demeanour. Because of their lack of candour about that I have some reservations about the reliability of other aspects of the evidence of each of them.
I also note that at least in relation to the defendant Molnar there is evidence that she was apparently told 2 different things about Ms AB’s age – that is that the defendant Sara apparently told her that Ms AB was 19 while Ms AB herself told her that she was 20 or perhaps that she was 21. There is no evidence before me about what were the thought processes of the defendant Molnar upon receiving that conflicting information and why it did not raise her suspicions. It may be that she thought the defendant Sara had misheard or misunderstood or that the difference simply didn’t register with her at the time. Those things were not explored in cross examination and it would be impermissible for me to speculate. In the absence of anything further I cannot draw adverse inferences about what the defendant Molnar said she believed merely because she had apparently been told different things about Ms AB’s age.
In relation to what was told to them by Ms AB however, the testimony of the witness Pang and of the defendants is broadly consistent, and despite the reservations I have about the evidence of the defendants, I am satisfied that Ms AB lied about her age in conversations with the defendant Molnar and the defendant Sara, and that she told them and the witness Pang that she had broken up with a partner and had 2 children.
It is highly likely that Ms AB knew that she would not be permitted to work at the Exotic Studio unless she was over 18. Whatever her reasons may have been, it is apparent she wished to work there and the lie about her age was no doubt calculated to help achieve that end. The further information about a broken relationship and children was probably an embellishment to add credibility to the false image she wished to portray. The defendants used the word “mature” to describe Ms AB. Consistently with the purpose for which she told the lie about her age, I think it is also likely that Ms AB would also have gone out of her way to act maturely in her interaction with each of the defendants, and I find that to be the case.
The reservations I have about the evidence of the defendants must be viewed against the background of the false image sought to be portrayed by Ms AB and the onus and burden of proof. That onus rests upon the prosecution to prove beyond reasonable doubt, in relation to each defendant, that she did not believe that Ms AB was over 18.
In the end result the evidence does not prove to me beyond reasonable doubt that each defendant did not believe Ms AB to be over 18.
The next question to be addressed is whether the belief of each of the defendants was reasonable. I have already referred to the decision of Reeves J in Mei Ying Su v Australian Management Authority No 2 [2008] FCA 1485 about the approach to be taken to the equivalent provision in the Commonwealth Code.
I respectfully adopt the same approach in my analysis of the evidence in this case.
The Prosecution submissions, based as they were upon what I have determined to be an incorrect legal basis, did not precisely address this question. The Prosecution evidence which might be relied upon to support a submission that the belief held by each of the defendants was not reasonable would appear to be the appearance of Ms AB in the photograph which is exhibit P9, the apparently conflicting information given to the defendant Molnar about Ms AB’s statements of her age, and the knowledge by the defendants (which I infer in accordance with the reasons given earlier) that information provided by working girls themselves might be unreliable. And of course that evidence needs to be assessed against what I have described as the common sense proposition that there are obvious difficulties in assessing the precise age of young people from their appearance and demeanour.
For their part the defendants say that Ms AB was tall and mature looking and physically bore the appearance of a woman and not a child, that Ms AB was actively trying to convey to people that she was older than she really was, that she had told convincing lies to her mother about where she was going that night and to the witness Pang about her circumstances, that she apparently spoke and acted in a mature manner, and that both defendants, being aware of their legal obligations, accepted that she was over 18 without requiring further proof.
Once again the issue of the onus and burden of proof assumes great significance here. It is not for the defendants to prove that their mistaken belief was reasonable but rather for the prosecution to prove, and prove beyond reasonable doubt, that the defendants’ mistaken belief was unreasonable.
I have found as a matter of fact that Ms AB did lie about her age, that she provided elaborating detail to lend credibility to her lie and that she would have gone out of her way to act maturely in her interaction with each defendant. It is apparent that she did all of this for the very purpose of leading both defendants to believe she was over 18.
For the reasons I have already given I cannot draw adverse inferences about the defendant Molnar’s belief about the age of Ms AB merely because she was apparently told different things about her age.
I have already made reference to the photograph of the defendant taken on 14 September 2008. My assessment of the photograph is that there is nothing in it which would necessarily lead a viewer to conclude that the person in the image was likely to be under 18.
Conclusion
In all of the circumstances I cannot be satisfied that the evidence proves beyond reasonable doubt that the mistaken belief of each of the defendants about the age of Ms AB on 14 September 2008 was unreasonable.
Having reached that conclusion there is no need for me to consider the question of whether the conduct of the defendant Sara amounted to permitting the provision of commercial sexual services.
I find each of the defendants not guilty and the information against each is dismissed.
Orders
Each of the defendants is not guilty and the information against each is dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Morrison.
Associate: Jayshil Prasad
Date: 28 June 2012
Counsel for the Informant: McMurray S
Solicitor for the Defendant: ACT Director of Public Prosecutions
Counsel for the Defendant: Pappas J
Solicitor for the Defendant: Ben Aulich & Associates
Date of hearing: 27 April 2012
Date of judgment: 13 June 2012
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