R v Clarke

Case [2008] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLARKE

[2008] SASC 100

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice David)

23 April 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - OTHER MATTERS

Appeal against conviction – appellant convicted of one count of producing child pornography contrary to s 63(a) of the Criminal Law Consolidation Act 1935 (SA) and one count of inciting a child to commit an indecent act contrary to s 63B(1)(a) of the Criminal Law Consolidation Act 1935 (SA) – whether the trial Judge erred in law in holding that a defence of honest and reasonable mistake of fact was not available to charges under s 63(a) and s 63B(1)(a).

Held: the statutory language and object and purpose of the legislation indicate that a defence of honest and reasonable mistake does not apply to a charge of an offence contrary to s 63(a) and s 63B(1)(a) – appeal dismissed.

Acts Interpretation Act 1901 (Cth) s15AA; Acts Interpretation Act 1915 (SA) s 22; Crimes Act 1900 (NSW) s 66C; Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA); Criminal Law Consolidation Act 1935 (SA) Division 11, Division 11A, ss 62, 63, 63A, 63B; Criminal Law Consolidation Act Amendment Act (No 3) 1985 (SA); Indecency with Children Act 1960 (UK); Police Offences Act 1953 (SA); Sexual Offences Act 1956 (UK); Statutes Amendment (Criminal Law Consolidation and Police Offences) Act 1983 (SA); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA); Summary Offences Act 1953 (SA), referred to.
Police v Kennedy (1998) 71 SASR 175; He Kaw Teh v The Queen (1985) 157 CLR 523; Jiminez v The Queen (1992) 173 CLR 572; Ostrowski v Palmer [2004] HCA 30; (2005) 218 CLR 493, applied.
B v Director of Public Prosecutions [2000] 2 AC 428; R v K [2001] UKHL 41; [2002] 1 AC 462, distinguished.
Sherras v De Rutzen [1895] 1 QB 918; CTM v The Queen [2007] NSWCCA 131; (2007) 171 A Crim R 371; Proudman v Dayman (1941) 67 CLR 536; Chard v Wallis (1985) 157 CLR 523; Lim Chin Aik v The Queen [1963] AC 160; Chief of General Staff v Stuart (1995) FCR 299; R v Turnbull (1943) 44 SR(NSW) 108, considered.

R v CLARKE
[2008] SASC 100

Court of Criminal Appeal:  Doyle CJ, Bleby and David JJ

  1. DOYLE CJ: Ms Clarke was convicted on one count of producing child pornography contrary to s 63(a) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”) and on one count of inciting a child to commit an indecent act, contrary to s 63B(1)(a) of the CLCA.

  2. Ms Clarke was tried before a Judge of the District Court sitting without a jury.

  3. She appeals against her convictions.  The alleged pornographic material, the…

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R v Clarke [2008] SASC 100
Case
[2008] SASC 100
Decision Date

CaseChat Overview and Summary

In R v Clarke, the appellant challenged her conviction for producing child pornography and inciting a child to commit an indecent act. The primary issue was whether a defence of honest and reasonable mistake of fact was available under sections 63(a) and 63B(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The trial judge ruled that such a defence was not applicable, and the appellant appealed this decision. The court was required to determine if the statutory language and legislative intent excluded the defence of honest and reasonable mistake of fact for these specific charges.

The Court examined the statutory language, the legislative intent, and the historical context of the relevant sections of the Act. The court found that the statutory language and the object and purpose of the legislation indicated that a defence of honest and reasonable mistake of fact was not applicable to charges under sections 63(a) and 63B(1)(a). The court noted that the tendency in the Act to impose absolute liability for age-related elements of offences, subject to strictly limited defences, supported this conclusion. The court also observed that while the enforcement of the statutory scheme might result in harsh consequences for individuals like the appellant, the imposition of absolute liability would better advance the enforcement of the statutory scheme.

The Court concluded that the trial judge's decision was correct and dismissed the appeal against the conviction. The court acknowledged the potential harshness of the statutory scheme but determined that the statutory language and legislative intent did not permit the defence of honest and reasonable mistake of fact in this case. The court's reasoning was based on the statutory language, the legislative intent, and the need to enforce the statutory scheme effectively. The appeal was dismissed, and the conviction remained intact.

Orders

Orders of the court

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Background

Background to the litigation

The appeal challenges the correctness of that ruling.Facts Ms Clarke was jointly charged with Ms Malyschko and Mr Osis. The other two knew that the girls were 14 years of age. They pleaded guilty. Ms Malyschko and Mr Osis had known the two girls for several weeks. Ms Clarke met them for the first time on the night of the offences. The five of them went to a flat occupied by Ms Malyschko and Mr Osis. Ms Clarke and Ms Malyschko encouraged the two girls to dance with them while Mr Osis filmed them. It was not disputed that the film was of a pornographic nature. Mr Osis also filmed the two girls performing an act of actual or simulated cunnilingus, and this incident was the indecent act relied upon by the prosecution for the purposes of the second count. The only issue at trial was whether Ms Clarke had a defence based on her belief as to the age of the two girls. The Judge found that the two girls “could easily be taken to be 17”. The prosecution did not prove that Ms Clarke knew that the girls were under 16 years of age. To the contrary, the Judge was satisfied on the balance of probabilities that Ms Clarke honestly and reasonably believed the girls were 17 years of age. Neither at the trial nor on appeal did Ms Clarke argue that the prosecution had to prove that she knew that the girls were under 16 years of age.The legislation The history of the legislation is outlined by Bleby J in Police v Kennedy (1998) 71 SASR 175 at 178. For many years the law has made it an offence to produce or to distribute indecent matter. The provisions were found in the Police Offences Act 1953, subsequently entitled the Summary Offences Act 1953 (SA). Indecent matter was defined widely enough to cover child pornography. In 1983 the law was amended to provide for a heavier maximum penalty if a child was the subject of the indecent matter. The section was recast in 1992. The penalty for child pornography was increased again. And for the first time possession of indecent or offensive material was made an offence. Previously the offence had been aimed at the production and distribution of such material. By the Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA) the provisions relating specifically to child pornography were removed from the Summary Offences Act. Division 11A was inserted into Part 3 of the CLCA. The Division is headed “Child pornography and related offences”. I set out below relevant provisions. Section 62 is an interpretation provision. Relevant definitions are as follows:child means a person under, or apparently under, the age of 16 years;child pornography means material—(a) that—(i) describes or depicts a child engaging in sexual activity; or(ii)consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and(b) that is intended or apparently intended—(i) to excite or gratify sexual interest; or(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty;…pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic;…The first count was laid under s 63, which provides as follows:63 Production or dissemination of child pornographyA person who—(a) produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or(b) disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature,is guilty of an offence.Maximum penalty:Imprisonment for 10 years.Although no charge was laid under s 63A, its provisions are relevant for present purposes. They are as follows:63A Possession of child pornography(1) A person who—(a) is in possession of child pornography knowing of its pornographic nature; or(b)intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,is guilty of an offence.Maximum penalty:(a) for a first offence—imprisonment for 5 years; or(b) for a subsequent offence—imprisonment for 7 years.(2) It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.(3) …The second count was laid under s 63B, which relevantly provides as follows:63B Procuring child to commit indecent act etc(1) A person who—(a) incites or procures the commission by a child of an indecent act; or(b) acting for a prurient purpose—(i)causes or induces a child to expose any part of his or her body; or(ii)makes a photographic, electronic or other record from which the image, or images, of a child engaged in a private act may be reproduced,is guilty of an offence.Maximum penalty:Imprisonment for 10 years.(2) …(3) A person who—(a)procures a child or makes a communication with the intention of procuring a child to engage in, or submit to, a sexual activity; or(b)makes a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity,is guilty of an offence.Maximum penalty:Imprisonment for 10 years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For those reasons, while I have found the decisions of their Lordships helpful, their reasoning is not directly applicable to the case now before the Court.Conclusion With some hesitation, I conclude that the District Court Judge rightly decided that the fact that Ms Clarke honestly and reasonably believed the girls in question were 17 years of age was no defence to either charge under consideration. I am influenced by the statutory language, the tendency in the CLCA to impose absolute liability (subject to strictly limited defences) in relation to the age element of offences in this and other related divisions of the CLCA, and by the fact that while my conclusion will mean that the provisions will operate harshly in relation to people such as Ms Clarke, the enforcement of the statutory scheme will be advanced by imposition of absolute liability. The case now before the Court illustrates that the statutory scheme has the potential to produce harsh consequences. I would dismiss the appeal against conviction.BLEBY J:The issue Where a statutory offence is cast in terms which would otherwise appear to impose strict liability for the offence or for an element of the offence, it will generally be a defence to a charge of the offence that the defendant held an honest and reasonable belief in the existence of circumstances which, if true, would make the subject matter of the alleged offence an innocent act. That defence is commonly known as the Proudman v Dayman[1] defence. Its availability in a given case is to be presumed unless, upon its proper construction, the statute manifests an intention that the presumption is rebutted. [1] (1941) 67 CLR 536. The question in this case is whether the presumption has been rebutted in respect of a person’s belief as to the age of a child in the case of alleged offences against s 63(a) and s 63B(1)(a) of the Criminal Law Consolidation Act1935 (SA) (“the Act”). More specifically, for the purpose of offences involving the production of child pornography and procuring the commission by a child of an indecent act, a child is defined as meaning “a person under, or apparently under, the age of sixteen years”.[2] Does the prosecution have to prove that the accused knew that the person involved was under sixteen or that the accused did not honestly and reasonably believe that the person was aged sixteen or over? [2] s 62 Criminal Law Consolidation Act 1935 (SA) The presumption need not apply to every element of an offence. It is sufficient that it applies to an individual element of the offence rather than to the offence as a whole. In Chief of General Staff v Stuart,[3] Black CJ said:In determining whether … the presumption has been displaced, and to what extent it has been displaced, I see no reason why different elements of an offence should necessarily be treated in the same way: see He Kaw Teh[4] at 568 per Brennan J. Although it is convenient to be able to classify an offence in its entirety as one of “strict” or “absolute” liability, the task is one of construction and it is by no means inevitable that the application of the same principles of construction should produce the same result with respect to each ingredient in an offence.[5] [3] (1995) 58 FCR 299.[4] He Kaw Teh v The Queen (1985) 157 CLR 523.[5] Chief of the General Staff v Stuart (1995) 58 FCR 299 at 305. See also Lockhart J at 320 with whom Davies and Heerey JJ agreed. See also Lee J at 331.

Ratio Decidendi

Legal Principle Established

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