R v Clarke - [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

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.
Ms Clarke was tried before a Judge of the District Court sitting without a jury.
She appeals against her convictions. The alleged pornographic material, the subject of the first charge, depicted two girls proved to be 14 years of age. The same two girls were the persons allegedly incited to commit an indecent act. The Judge found, on the balance of probabilities, that Ms Clarke honestly and reasonably believed the two girls were 17 years of age. But the Judge held that in law that belief was not a defence to either charge.
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 pornography
A 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.
These provisions were amended by the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (with effect from 15 May 2006) to distinguish (for sentencing purposes) between a basic offence and an aggravated offence. By the same Act an aggravated offence was defined by an amendment to s 5AA(1)(e). The offences were committed in late September 2005. Accordingly, I have treated the amendments as irrelevant for present purposes. I have no reason to think that they affect the issue that I am considering.
Relevant principles of interpretation
The principles of interpretation that bind this Court are to be found in He Kaw Teh v The Queen (1985) 157 CLR 523. There the High Court considered at length the principles that govern a case like this. The decision establishes (or confirms) that statutes creating offences are to be interpreted bearing in mind the common law principle or presumption that an ingredient of an offence is knowledge of the wrongfulness of the relevant acts. The relevant common law principle was conveniently summarised by Jordan CJ in R v Turnbull (1943) 44 SR(NSW) 108 at 109, where he said:
It is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.
This statement of the law was referred to with approval by Brennan J in He Kaw Teh at 572 and in Ostrowski v Palmer [2004] HCA 30; (2005) 218 CLR 493 at [10] by Gleeson CJ and Kirby J, at [41] by McHugh J.
The presumption is rebuttable. A statute is to be construed in light of the presumption.
As Gibbs CJ said at in He Kaw Teh at 528 (Mason J agreed with his reasons at 546) a statutory provision must be read in light “of the general principles of the common law which govern criminal responsibility”. He then referred to the statement of principle in Sherras v De Rutzen [1895] 1 QB 918 at 921 to the effect that “There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence …”. A little later he said (at 532):
There has developed a principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence.
The relevant principles are conveniently summarised by Brennan J (He Kaw Teh at 582), and for convenience I set out his summary:
1There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.
2There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either—(a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
3The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.
4The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides.
Earlier in his reasons (at 565) he had said:
When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind.
He then went on to consider, in some detail, the various states of mind that might be relevant, and in particular referred (at 576) to “knowledge or absence of exculpatory belief”.
I also set out some observations from the reasons of Dawson J at 590-591:
The question whether an offence requires the prosecution to prove mens rea as an ingredient of the offence or whether the extent of the mental element involved is to be found in the defence of honest and reasonable mistake or whether it is an absolute offence, is essentially a question of the interpretation of the statute creating the offence. However, notwithstanding that the question may be stated as simply as that, various observations have been made in the cases about the way in which the task of interpretation should be approached.
… Since a statute is to be construed as far as possible so as to observe principles embedded in the common law, there is support for those who think that there is a strong presumption that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. On the other hand, the view has been expressed that such a presumption no longer exists with modern statutory offences and that, at most, there is a weak presumption that the legislature intended to create strict liability rather than absolute liability by leaving available the defence of honest and reasonable mistake.
…
In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation. … (footnotes omitted)
More recently the High Court summarised the position in relation to honest and reasonable mistake in Jiminez v The Queen (1992) 173 CLR 572 at 581-582 where the majority said:
A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake. In a well-known passage in Proudman v Dayman, Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute. (footnotes omitted)
In He Kaw Teh Gibbs CJ summarised the matters to be considered when considering whether Parliament intended that the relevant conduct should be punishable “even in the absence of some blameworthy state of mind”. The first matter to be considered was “the words of the statute creating the offence”: at 529. The second matter to be considered was “the subject matter with which the statute deals”: at 529. That involves in particular the nature of the conduct being regulated or suppressed by Parliament, its impact on the community, its seriousness, and whether (at 530):
…the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression.
The third consideration (at 530) was whether treating the offence as one of strict or absolute liability would assist in the enforcement of the legislative scheme. In particular, it required consideration of whether any good purpose would be served by punishing a person who honestly and reasonably believed in circumstances that, if true, would mean that the relevant conduct was not in breach of the relevant provision. Brennan J put this aspect of the matter as follows (at 567):
However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.
The purpose of the legislation
As the Second Reading speech by the Attorney-General on the Bill makes plain (Hansard, House of Assembly, Tuesday 26 October 2004, p 561) the purpose of the legislation is to protect children from exploitation, degradation and humiliation through child pornography. The aim of the legislation is to reduce, and as far as possible eliminate, possession, production, supply and sale of child pornography. In part this was by increasing penalties, and in part by the introduction of new offences. As well, the definition of child pornography was widened.
There can be no doubt about the seriousness of the evil at which the relevant legislative provisions are aimed. Likewise, there can be no doubt about Parliament’s intention to punish severely those who produce child pornography, those who disseminate it and those who have it in their possession. And the fact that the definition of “child” includes a person “apparently under the age of 16 years” makes plain, if that was necessary, that persons who disseminate or possess pornography may commit an offence if the person the subject of the pornography appears to be under the age of 16 years, even if there is no means of knowing or proving the actual age of the person. The reason for a provision of this kind is obvious. It will often be impossible to identify the person the subject of pornography, and so impossible to prove the person’s age.
The statutory provisions
An element of the offence the subject of count 1 is that the relevant material depicted a child, which means that an element of the offence is that one or each of the girls in question was “a person under, or apparently under, the age of 16 years”: s 63 of the CLCA. Similarly, an element of the offence the subject of count 2 is that one or each of the persons incited, that is, the two girls, was a child and so “a person under, or apparently under, the age of 16 years”. Neither s 63 nor s 63B(1) contains any express indication that it is necessary to prove any mental element on the part of the accused relating to the fact that the person in question is a child. Parliament could easily have made that clear by providing that the offence in question is committed if a person “knowingly” produces child pornography, or knowingly incites or procures the commission by a child of an indecent act. The provisions are silent on this point. However, that legislative silence is to be assessed in the light of the presumption that knowledge that the material depicted a child, and knowledge that the persons incited were children, is an element of the offence, or at least a presumption that proof that the accused did not honestly and reasonably believe that a child was not involved is an element of the offence.

By contrast, in s 63 Parliament has provided that knowledge of the pornographic nature of the material is an element of the offence. A similar provision is made in s 63A(1)(a). Section 63B(3) clearly includes a mental element as to some aspects of the offence created by that provision, and the same can be said as to s 63B(1)(b). This provides support for an argument that the silence of Parliament to which I have just adverted indicates that Parliament intended not to require proof that the accused person did not honestly and reasonably believe that the person the subject of the offence was a child.
The fact that Parliament has required, as an element of the offence, proof that the person charged knew the material was of a pornographic nature, and went no further than that, is significant. In light of the limited provision made, Parliament could hardly have intended to require proof that a person charged knew that the material of a pornographic nature was child pornography. That does not exclude the possibility that Parliament intended that an honest and reasonable belief that the material was not child pornography, because of a belief as to the age of the person depicted or involved, should be a defence to a charge. But to my mind the fact that Parliament has addressed the issue of knowledge, and has dealt with it as it has, suggests that Parliament’s intention was that knowledge (in any form) that the material is child pornography was not intended to be an element of the relevant offence.
There is further support for this approach in the definition of “child”. The terms of the definition suggest that an honest and reasonable belief that the subject of the pornographic material is not under the age of 16 years is no answer to a charge under s 63 or under s 63B(1).
I agree with the observations of Bleby J in Kennedy to the effect that whether a person is “apparently under the age of 16 years” is a question of fact to be decided by the tribunal of fact, based on the evidence and using the decision-maker’s own experience and judgment: Kennedy at 186. That question is to be decided objectively. That is, the tribunal of fact makes its own assessment of the evidence, and does not consider the opinion or belief of the accused.
If the tribunal of fact (judge, magistrate or jury) concludes that the person depicted is apparently under the age of 16 years (and so concludes that an element of an offence is made out), it could not be an answer for the accused to rely on a finding that the accused honestly and reasonably believed that the person was not apparently under the age of 16 years. That answer would not be to the point. The relevant point is that the person in question is found to be apparently under the age of 16 years.
Moreover, and perhaps more significantly, a belief that the person depicted is not under the age of 16 years could not be a reasonably held belief, if the tribunal of fact has decided that the person in question is apparently under the age of 16 years. Those two conclusions could not stand together.
In such a case, it equally would not be an answer that the defendant honestly and reasonably believed that the person was more than 16 years of age, nor would proof that the person was in fact more than 16 years of age be an answer to a charge. The relevant offence would have been committed because the person depicted or incited was apparently under the age of 16 years. Proof of a belief as to the person’s actual age (as distinct from appearance), or even proof of that age as a matter of fact, would not answer the charge that the accused was involved in the production of material involving a person apparently under the age of 16 years, or incited the commission of an indecent act by a person apparently under the age of 16 years. However, I acknowledge that while one can understand punishing a person for the publication of pornography involving a person apparently (but not in fact) under the age of 16 years (because the apparent involvement of a child is an important aspect of the pornographic material), there seems less point in punishing a person for inciting the commission of an indecent act by a person not in fact under the age of 16 years, but who appears to be under that age.
If then an honest and reasonable belief that the person in question is not under the age of 16 years is no answer to a charge based on the person in question being apparently under the age of 16 years, is it nevertheless an answer to a charge based on proof of the age of the person in question? That is how the present case was put to the Judge. The age of the two girls in question was proved as a matter of fact.
No reason occurs to me to think that Parliament would take a different approach to a different way of proving that the person depicted or concerned is a child. The fact that the accused is guilty of an offence if the person depicted or incited is apparently (judged objectively) under the age of 16 years, whatever may have been the belief of the accused, suggests to me that in a case based on proof of the age of the person depicted or incited, the belief of the accused should be and will be equally irrelevant. It would be surprising, I consider, if Parliament in that situation required the prosecution to negative an honest and reasonable belief as to the age of the person depicted or incited, when it regarded that belief as irrelevant under other circumstances.
Accordingly, my tentative conclusion is that the language of Division 11A indicates that proof of an offence under s 63(1)(a) or under s 63B(1)(a) does not require the prosecution to prove that the accused did not have an honest and reasonable belief that the person depicted or incited was not under the age of 16 years.
The trial Judge found support for this conclusion in the fact that “… the scheme of the [CLCA] is to impose absolute liability in the case of sexual offences against children under 16”: at [19]. The Judge reached this conclusion by examining the provisions of Division 11 of the CLCA which Division contains the well-known offences of unlawful sexual intercourse with a person under the age of 17 years (s 49), indecent assault (s 56) and committing or procuring the commission of an act of gross indecency with or in the presence of a person under the age of 16 years (s 58). Section 57 contains provisions to the effect that no person under the age of 17 years can consent to an indecent assault, and that no person under the age of 18 years can consent to an indecent assault committed by a guardian, teacher, schoolmaster or schoolmistress. It also creates a limited defence of consent to indecent assault if the accused is under the age of 17 years, the victim is aged between 16 and 17 years and the accused believed on reasonable grounds that the victim was of or above the age of 17 years. Section 49(3) establishes a like defence to a charge of unlawful sexual intercourse.
Similar provisions are found in the laws of other States. They reflect a long established policy of protecting young persons against sexual exploitation and sexual conduct. They reflect a long-established policy that persons under a certain age should not be able to consent to certain types of sexual conduct.
It is correct, as the Judge said, that under these provisions, when the age of the victim is referred to and proof of the age of the victim is an element of the offence, it is no answer for the accused to establish an honest and reasonable belief that the victim is of an age such that, if the belief was correct, the relevant conduct would not be an offence. That observation by the Judge rests on the established approach to these provisions, which in turn is supported by the fact that within them are found provisions for a strictly limited defence (of the kind just referred to) based on the age of the victim, the age of the accused and a belief on the part of the accused that the victim was of or above the age of 17 years. The provision of a strictly limited defence of this kind is inconsistent with the suggestion that an honest and reasonable belief that the victim is not of an age that attracts the relevant provisions could in all cases be an answer to a charge under them.
No like defences are provided for by Division 11A. The absence of any such provision, standing alone, is equivocal. The absence could suggest that a belief based on the age of the person concerned is irrelevant to guilt. On the other hand, it leaves room for the argument that as there is no limited provision inconsistent with a defence based on a belief as to age, there is nothing opposed to the conclusion that an honest and reasonable belief as to age is a defence. A similar argument (relating to provisions similar to those found in Division 11 of the CLCA) was considered by the Supreme Court of New South Wales (Court of Criminal Appeal) in CTM v The Queen [2007] NSWCCA 131; (2007) 171 A Crim R 371 at [65]-[148].
The approach that has been taken to the interpretation of the provisions in Division 11 of the CLCA provides limited support for my tentative conclusion as to the construction of the provisions in Division 11A. The provisions of Division 11 demonstrate no more than that to protect children from exploitation, Parliament has created offences involving absolute liability in relation to the age of the victim, when that age is an element of the offence, but subject to a strictly limited exception. It can therefore be said that there is nothing novel in imposing absolute liability.
One cannot draw a direct conclusion from the approach taken in Division 11 to the correct approach to and interpretation of the provisions in Division 11A. The most that can be said is that the approach taken by Parliament in Division 11 demonstrates that imposing absolute liability in some respects, for the purpose of protecting children against sexual exploitation, has a respectable pedigree.
Moreover, if comparison is to be made with other Divisions in Part 3 of the CLCA, it would be necessary to consider all of the relevant Divisions. That would attract attention to, at least, Division 8 (Female Genital Mutilation), Division 9 (Kidnapping and Unlawful Child Removal), Division 12 (Commercial Sexual Services and Related Offences) and Division 16 (Abduction of Children). In each of these Divisions provisions can be found creating offences, an element of which is the fact that the victim is a child. It is, I consider, too sweeping to say that throughout these Divisions the element of age as part of an offence always attracts absolute liability.
The subject matter
I turn now to the subject matter of the provisions. The production, dissemination and use of child pornography has been identified as a serious social problem. It involves the exploitation of children, and the exposure of children to the risk of harm. The use of child pornography has been linked to the commission of sexual offences against children. In contemporary times legislatures have increased penalties for offences involving child pornography, and have revised legislation to expand its reach.
In that context it would not be surprising if the approach taken by Parliament were severe and stringent. It would not be surprising if the legislative scheme should put those who involve themselves in pornography, that might be child pornography, at the risk of conviction and punishment, even though they engage in the prohibited conduct without knowing that they do so with a child. The fact that material is pornography will be apparent in the vast majority of cases. The fact that a child is involved, or is the subject of the pornography, would usually be readily apparent. But there will be cases when the age or appearance of the person involved in the pornographic material is such that there is room for uncertainty as to whether a child is involved. But one can understand that Parliament might enact legislation the effect of which is to punish those who do not realise that they are involving themselves in child pornography, even though they are. The reason for taking that approach would be that the suppression of child pornography is sufficiently important to punish not only risk takers (those who do not have an honest and reasonable belief that a child is not involved), but also those who do have an honest and reasonable belief that a child is not involved. The justification for punishing the latter group would be, on this hypothesis, that the suppression of the production of and trade in child pornography warrants such a stringent approach. Similar considerations could apply to the provisions of s 63B, which deals with a connected social evil.
On the other hand, it needs to be borne in mind that the offences created are serious offences. They now attract a punishment of imprisonment for up to 12 years, and at the time attracted a punishment of imprisonment for up to 10 years. A conviction and punishment for such offences has serious consequences for the convicted person. One would not lightly impose these consequences on a person who honestly and reasonably believed in facts that, if true, would mean that no offence against the provisions of Division 11A was being committed.
The present case illustrates the point at issue. The girls involved in each count appeared to be more than 16 years of age. Ms Clarke honestly and reasonably believed that they were more than 16 years of age. Nevertheless, Ms Clarke has been convicted of two serious offences, exposing her to significant punishment. If Ms Clarke’s belief as to the age of the persons concerned had been correct, no offence under Division 11A would have been committed. Is it likely that Parliament intended that she should nevertheless be convicted and punished, bearing in mind the evident intention of Parliament to adopt stringent measures dealing with those involved in the production of child pornography, and those who involve children in the commission of indecent acts?
I am unable to draw a conclusion one way or the other, from a consideration of the subject matter of the provisions. The considerations that might have led Parliament to take a stringent approach are self-evident. But these considerations do not clearly point to a conclusion that Parliament would have intended to punish someone who held a belief that, if true, would have meant that the evil at which the legislation was aimed was not present.
The enforcement of the legislative scheme
I turn to the third of the considerations identified by Gibbs CJ. That is whether the approach that the Judge took will assist in the enforcement of the legislation. Or does it, on the other hand, give rise to a likelihood that luckless or innocent persons will be convicted, without serving any useful purpose? Putting it a little differently, would the enforcement of the legislation be undermined if an honest and reasonable belief that the girls were aged more than 16 was a defence to the charges in question?
I consider first cases involving the production, dissemination or possession of child pornography.
When the prosecution relies on proof of the age of the person depicted (that is, that the person is under the age of 16 years) the admission of a defence based on an honest and reasonable belief would mean that unless the prosecution is able to negative that belief, there will be no conviction. In cases involving young children, it should not be difficult to negative that belief. But when the person depicted is a teenager (13 years of age or more) I anticipate that it will often be difficult to negative a claim of an honest and reasonable belief that the person depicted is more than 16 years of age. The present case (the girls were 14 years 10 months and 14 years nine months of age) is an illustration. There is no reason to think that cases like the present one are exceptional.
It is fair to say that recognition of the defence will make it difficult to enforce the provisions of Division 11A in cases involving teenagers when the charge is laid under s 63 or s 63A.
On the other hand, when the prosecution relies on the fact that the person depicted is apparently under the age of 16 years (the prosecution might also prove the actual age, or might rely solely on appearance), proof that the person is apparently under the age of 16 years will leave no room in any event for an honest and reasonable belief that the person is aged more than 16 years.
So recognition of the defence will make it difficult to secure a conviction in a category of case that cannot be put aside as insignificant.
The evil of child pornography is not confined to the exploitation of very young children. Punishing persons like Ms Clarke will demonstrate the need for those who deal with pornographic material to take great care that persons under the age of 16 years are not involved. It is feasible to take precautions. It cannot be said that there is no point in imposing absolute liability, because those likely to be subject to that liability are unable to protect themselves by taking appropriate precautions. I do not deny that there will be children who succeed in deceiving others as to their age. Nor do I minimise the difficulty in obtaining appropriate proof in some circumstances. However, there are sensible arguments connected with the enforcement of the statutory regime that support the imposition of absolute liability in relation to the age of the person involved. Similar considerations apply to the enforcement of s 63B. Section 63B has a good deal in common with s 58(1)(b), which punishes a person who incites or procures the commission by a person under the age of 16 years of an act of gross indecency. A policy of imposing absolute liability in relation to the age element of the offence is a coherent one, even though there will be cases in which the person found guilty might be regarded as outside the scope of the statutory policy, eg a person aged less than 16 years who incites or procures the commission of an indecent act by another person of a like age.
Other matters
I have referred already to the argument that the provisions in Division 11 of the CLCA reflect a policy of imposing absolute liability in relation to the age element of the offences in that division, and the argument that Parliament should be taken to have intended to take the same approach in Division 11A. While I gave quite limited effect to that argument, it is fair to say that there are other provisions in Divisions 8 to 16 of Part 3 of the CLCA which create offences, an element of which is the age of the person involved or victim, and in relation to which liability has been taken to be absolute. So, as I have already mentioned, such an approach in this area of the law (protecting children against abuse and exploitation) is not unknown.
We were referred in argument to two decisions of the House of Lords: B v Director of Public Prosecutions [2000] 2 AC 428 and R v K [2001] UKHL 41; [2002] 1 AC 462. The first of these is a case in which the defendant was charged with inciting a girl under the age of 14 to commit an act of gross indecency with him, contrary to s 1(1) of the Indecency with Children Act 1960 (UK). This provision has some similarities to s 58(1)(b) of the CLCA. The second case involved a charge of indecently assaulting a 14 year old girl, contrary to s 14 of the Sexual Offences Act 1956 (UK). That provision has some similarities to s 56 and to s 57 of the CLCA, dealing with indecent assault and the circumstances in which consent might be a defence. In each case the House of Lords held that the presumption that the prosecution must establish a mental element in respect of the age element of the relevant offence was not rebutted. Accordingly, in each case it was necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant (for which belief reasonable grounds were not necessary) that the victim had been above the age that constituted the age element of the relevant offence.

In deciding these cases their Lordships considered matters of the same kind as I have considered. Their approach to the issues is helpful, and one that gives me pause, because I am conscious that their conclusion is one, on the face of it, that is opposed to the conclusion that I have reached.
However, there are some significant points of distinction.
Their Lordships were dealing with offences similar to those found in Division 11 of the CLCA, not in Division 11A, although I recognise that there is an overlap between the offence constituted by s 63B and the offences involving gross indecency constituted by s 58 (which is found in Division 11). There are significant differences between the provisions found in Division 11 of the CLCA and the provisions considered by the House of Lords in the two cases, and other related provisions which they considered. There are, I consider, strong reasons for coming to a conclusion, in relation to offences found in Division 11 of the CLCA, contrary to that reached by their Lordships. The relevant provisions of Division 11 reveal a clear pattern of providing for a carefully confined age-related defence, and doing so in a manner inconsistent with a requirement that the prosecution prove in all cases that the defendant did not believe the victim was above the relevant age, or did not have an honest and reasonable belief to that effect. Their Lordships said that the English provisions did not constitute a coherent legislative scheme that could support a conclusion that Parliament had intended to impose absolute liability in relation to the age element of the relevant offences. In my respectful opinion the contrary conclusion arises from a consideration of the provisions of Division 11 of the CLCA.
Therefore, the first point of distinction is that the decisions of the House of Lords deal with provisions found in Division 11 of the CLCA, and there are material differences between the South Australian provisions and the United Kingdom provisions.
Another point of distinction is that English law has not taken the approach that Australian law has taken to the presumption that honest and reasonable mistake is to be treated as a ground of exculpation.
The next point of distinction is that s 63 and s 63A of the CLCA deal with pornography, a subject matter that requires separate consideration.
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.
In CTM v The Queen,[6] Howie J said:
The defence operates where the statutory offence does not require full mens rea to prove an element of the offence. The defence arises where the offence being considered would otherwise be an offence of strict liability generally or in regard to a particular element of the offence.[7]
[6] (2007) 171 A Crim R 371; [2007] NSWCCA 131.
[7] Ibid, 385; [67], Hodgson JA and Price J agreeing. See also Chard v Wallis (1988) 12 NSWLR 453 at 456, Roden J.
The facts and the statutory provisions
The facts are adequately set out in the reasons of the Chief Justice. I will not repeat them. Likewise, I will not repeat the relevant statutory provisions to which the Chief Justice has also referred. As will be seen, in many respects I respectfully adopt and agree with what the Chief Justice has said. In some respects I have a difference in emphasis only.
Sections 63, 63A and 63B, together with the relevant definitions in s 62 and certain other supplementary provisions not relevant for present purposes contained in s 63C, comprise Div 11A – CHILD PORNOGRAPHY AND RELATED OFFENCES of Part 3 of the Act. Div 11A was inserted in the Act as a new division with effect from 30 January 2005 by the Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA).
The predecessor to s 63 of the Act was s 33 of the Summary Offences Act 1953 (SA). I referred to the history of that section in Police v Kennedy.[8] I will not repeat it. With its insertion as s 63 of the Act in 2005 the form of the section was recast. The maximum penalties were substantially increased from a maximum of two years imprisonment for a first offence and four years imprisonment for a second or subsequent offence to the present maximum of ten years imprisonment for a basic offence and twelve years imprisonment for an aggravated offence.[9]
[8] (1998) 71 SASR 175 at 178.
[9] For the definition of an aggravated offence see s 5AA Criminal Law Consolidation Act1935.
The predecessor to s 63B of the Act was s 58A, then found in Div 11 of the Act. Section 58A then provided:
Offence if person for prurient purposes incites or procures commission by child of indecent act etc
58A(1)     A person who with a view to gratifying prurient interest (whether of that person or some other person) –
(a)     incites or procures the commission by a child of an indecent act; or
(b)     causes or induces a child to expose any part of his or her body,
shall be guilty of an indictable offence and liable for a first offence to be imprisoned for a term not exceeding two years and for any subsequent offence to be imprisoned for a term not exceeding three years.
(2)     Subsection (1) applies whether events referred to in the subsection occur in public or in private or with or without the consent of the child.
(3)     In this section –
“child” means a person under the age of sixteen years.
It will be noted that upon its re-enactment as s 63B in Div 11A, it became an offence under subsection (1)(a) merely to incite or procure the commission by a child of an indecent act. The inciting or procuring did not have to be undertaken with a view to gratifying prurient interest. It will also be noted that by its insertion into Div 11A, the definition of “child” was changed from meaning “a person under the age of sixteen years” to meaning “a person under, or apparently under, the age of sixteen years”. In addition, the penalties were greatly increased from a maximum of two years imprisonment for a first offence and three years for a second or subsequent offence to ten years imprisonment for a basic offence and twelve years imprisonment for an aggravated offence.
Section 58A had been inserted in the Act by the Criminal Law Consolidation Act Amendment Act (No 3) 1983 which came into effect on 1 December 1983. It appears to have been introduced to overcome certain perceived limitations associated with the then s 58 of the Act relating to child pornography.[10] Those provisions had been inserted in s 58 in 1978. They were repealed by the Statutes Amendment (Criminal Law Consolidation and Police Offences) Act 1983 and were replaced by that Act with an amended s 33 of the Summary Offences Act1953, the predecessor to s 63 and s 63A of the Act.
[10] See 1983-84 SA Hansard, Vol 1, p 903.
Thus, the whole of Div 11A had its origins in earlier versions of sections previously found in Div 11 of the Act. Division 11 covers a range of rape and other sexual offences. With the creation of Div 11A Parliament saw fit to assemble in the one division child pornography and related offences as a discrete group of offences, the object and purpose of which, as will be seen, is the protection of children from sexual exploitation, degradation and humiliation. At the same time the penalties for those offences were greatly increased and all became indictable offences.
The Proudman v Dayman defence and rebuttal of the presumption
The expression of and the principles underpinning the Proudman v Dayman defence are relatively well settled. They have been identified by the Chief Justice in his reasons and I need not repeat them. It is the application of them to these sections of the Act and the proper construction of the Act which is the subject of debate in this case.
Whether the Act manifests an intention to rebut the presumption that the Proudman v Dayman defence applies in this case depends upon the proper construction of the Act.
Not surprisingly there have been various expressions of judicial concern at the prospect of a person being convicted of a serious offence involving a possible substantial period of imprisonment without proof of any relevant guilty mind or even knowledge that an offence was being committed. In He Kaw Teh v The Queen[11] Brennan J said:
The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed). It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.[12]
[11] (1988) 157 CLR 523.
[12] Ibid 567.
The same may be said of the Proudman v Dayman defence. That approach is understandable. It was echoed by Roden J in Chard v Wallis:[13]
To those brought up under the Common Law, there is something repugnant about the notion that a person can be guilty of a serious criminal offence by accident. Over the years, that has been reflected in a number of landmark decisions on the concepts of mens rea and the onus and standard of proof. Prominent among them, and each containing a major statement of principle, are R v Tolson (1889) 23 QBD 168; Woolmington v Director of Public Prosecutions [1935] AC 462; "The Australian Line" including Maher v Musson (1934) 52 CLR 100 and Proudman v Dayman (1941) 67 CLR 536; Iannella v French (1968) 119 CLR 84; and more recently Director of Public Prosecutions v Morgan [1976] AC 182, and He Kaw Teh v The Queen (1985) 157 CLR 523.
Between them, those decisions have reaffirmed fundamental rules as to onus and standard of proof and the general need to establish guilty intention; and have introduced, confirmed and widened the operation of the defence of mistaken belief on reasonable grounds for those offences in respect of which there is no general mens rea requirement.
[13] (1988) 12 NSWLR 453 at 455.
In CTM v The Queen[14] the New South Wales Court of Criminal Appeal had to consider the effect of s 66C(3) of the Crimes Act 1900 (NSW) which created the offence of having sexual intercourse with a child between the ages of 14 and 16. The question there arose as to the availability of the Proudman v Dayman defence as to the accused’s belief concerning the child’s age. It was held that the defence did not apply as the presumption had been rebutted. The case was decided principally on the effect of the repeal of certain provisions of the Crimes Act 1900 and matters peculiar to that Act. The decision itself is therefore of little assistance in the interpretation of Div 11A of the Criminal Law Consolidation Act. However, in the course of his judgment Howie J observed:
It is unusual to find an offence of strict liability arising under the provisions of the Crimes Act. That Act is generally concerned with criminal offences of some seriousness, most of them indictable offences. Strict liability offences are generally found in offences of a regulatory nature such as under the provisions dealing with the control of motor traffic or public health.[15]
[14] (2007) 171 A Crim R 371, [2007] NSWCCA 131.
[15] Ibid 386, [69].
Later in his judgment he said:
The strongest argument to support the submission that Parliament should not be taken as having intended that the common law defence would not apply to an offence under s 66C(3) is what the appellant referred to as “the absurdly Draconian result” of the possibility of a person being convicted of such an offence who genuinely and reasonably mistakes the age of a consenting complainant. I feel the repugnance that Roden J expressed and that is found throughout the judgments in He Kaw Teh to a serious offence being committed by accident. The immediate reaction to the Crown submission is surprise, if not shock, at the suggestion that the Crimes Act can have what are in effect absolute liability offences carrying substantial gaol penalties. Of course that was always so with a child under 14 but there can be no denying that as the child becomes older the likelihood of an innocent mistake becomes more likely. I also accept that it is notoriously difficult to tell the age of person with such accuracy as an absolute offence would require, and it is not uncommon for children approaching the age of 16 to disguise or lie about their age in order to be treated more favourably as an adult.
The Crown submits that the fact of a person honestly mistaking the age of the child without any fault on his or her part can be taken into account on sentence even to the extent that, where there is no moral blame on the part of the offender, the charge could be dismissed without conviction: see R v Karaiskakis (1956) 74 WN (NSW) 457. But the offence is still an objectively serious one with a potential penalty of imprisonment for 10 years. The appellant points to the stigma and consequences that could follow a conviction regardless of the penalty imposed.[16]
[16] Ibid 402, [137]-[138].
Notwithstanding that argument the Court of Appeal felt compelled by the history of the statutory provisions to hold that the defence would not apply.
Powerful as that argument may be, in offences created by s 63(a) and s 63B(1)(a) of the Act, a choice is made to engage in the relevant conduct. It would be most unusual for there to be an accidental committing of the actus reus. Where there is no available proof of age, a potential offender must be taken to be aware of the possibility that, notwithstanding an honest and reasonably held belief that the child is of or above the age of 16, that person may turn out to be under 16. The actual conduct, rather than being accidental, is deliberate. The risk of possible offending is present notwithstanding the reasonably held belief as to the child’s age.
While one must be slow to negate a fundamental principle of the criminal law, ultimately the question must be decided upon recognised principles of statutory interpretation. In a case such as the present, a literal interpretation of the statute must be made against the background of the common law presumption. The application of the literal approach will not help resolve the question. One must therefore resort to the common law purposive approach and other relevant principles.
Section 22(1) of the Acts Interpretation Act 1915 (SA) requires the Court to prefer the construction of an Act which would promote the purpose or object of the Act “where a provision of an Act is reasonably open to more than one construction”. As I said, a literal construction of the Act does not assist. By its own terms s 22(1) of the Acts Interpretation Act can have no operation in this case. It follows that the constraint in subsection (2) that the section does not operate to create or extend any criminal liability also has no effect. Section 22 of the Acts Interpretation Act has qualifications on its operation that do not appear in s 15AA of the Acts Interpretation Act 1901 (Cth) or in any equivalent State Interpretation Act provisions. It would appear not to affect the operation of the common law principles of purposive interpretation where the Act can have no application.[17] This is not the only case where s 22 of the Acts Interpretation Act has been held to have no application.[18]
[17] See the observations of Cox J in Burch v SA (1998) 71 SASR 12 at 18.
[18] See R v Di Maria, Hudson & Pehlivanides (unreported, Full Court, Judgment No. S5882, 19 November 1996); R v Hill (unreported, Full Court, Judgment No. S5975, 24 December 1996).
The question is really whether the Act, construed as a whole, leaves any room for the presumption in favour of the Proudman v Dayman defence to operate. That can only be determined by an analysis of the purpose of the Act and whether rebuttal of the presumption is consistent with that purpose, together with an analysis of three other factors identified by Gibbs CJ in He Kaw TehvThe Queen[19] and subsequently adopted in many other cases.[20]
[19] (1985) 157 CLR 523.
[20] See, for example, Chief of the General Staff v Stuart (1995) 58 FCR 299; Griffin v Marsh (1994) 34 NSWLR 104 at 107-108, Hunt CJ at CL; Wilson v Gahan [1999] VSC 72 at [9]; CTM v The Queen (2007) 171 A Crim R 371, [2007] NSWCCA 131.

As identified by Gibbs CJ, first one must have regard to the words of the statute creating the offence.[21] The second matter to be considered is the subject matter with which the statute deals.[22] The third matter is whether a construction of absolute liability would promote observance of the statute.[23]
[21] He Kaw Teh v The Queen (1985) 157 CLR 523 at 529.
[22] Ibid.
[23] Ibid 530. See also 567, Brennan J.
The purpose of the legislation
I agree with the Chief Justice for the reasons he gives[24] that the purpose of the legislation is to protect children from exploitation, degradation and humiliation through child pornography. I merely refer in addition to what I noted in Police v Kennedy[25] as being the second reading speech of the then Attorney-General when introducing, in 1992, the amendments to s 33 of the Summary Offences Act (the predecessor to ss 63 and 63A of the Act). The Attorney-General observed that the amendment was based on recommendations of the Australian Law Reform Commission (ALRC) in its report number 55 entitled “Censorship Procedure”. He said:
"The ALRC considered Australia's obligations as a result of ratification of the United Nations convention on the rights of the child, particularly article 34, which undertakes to protect all children from all forms of sexual exploitation and sexual abuse. The production of child pornography is likely to involve child sex abuse and is often associated with child sex offenders …
The Government believes that children, who are amongst the most vulnerable in our society, must be protected from adults who seek to abuse and exploit them. This amendment will work to eliminate the sexual exploitation of children in our society."
[24] See paragraphs [18]-[19] above.
[25] (1998) 71 SASR 175 at 184-185.
However, I go further and say that the evident purpose of Div 11A is the protection particularly of children under the age of 16 from such exploitation, degradation and humiliation. The Division is directed towards the protection of that group in the community who are most vulnerable to sexual exploitation through the production of child pornography and by means of having them perform indecent acts designed to satisfy the desire in others for sexual arousal or gratification. There is no need to elaborate on what the Chief Justice has said about the nature of that protection.
As to the class to be protected, Parliament has seen fit to draw a line and has clearly drawn that line at persons below the age of 16. Parliament has drawn the line for protection at that age notwithstanding the qualification in the definition of “child” which includes a person over the age of 16 but who is apparently under that age. I do not consider that that qualification detracts from the object or purpose of the Division to protect only children who are under the age of 16.
The test for whether a child is apparently under the age of 16 is an objective one.[26] It does not turn on the belief or opinion of the perpetrator. That suggests that its inclusion in the legislation is to accommodate a situation where the actual age of the person cannot be ascertained. Such was the case in Police v Kennedy[27] where the identity of the subject of the child pornography was unknown. Such will often be the case with offences involving child pornography under ss 63 and 63A of the Act.
[26] Ibid 186.
[27] Ibid.
It will sometimes also be the case in offences under s 63B where, for example, the offence is proved by production of a photograph of an unidentified person apparently under the age of 16 engaging in an indecent act with another person, supported by evidence from someone other than the unidentified person that the offender incited or procured that act. In that case, and in the case of an unidentified person the subject of child pornography, the extended definition is there as an aid to proof where proof of actual age is lacking. That does not detract from the primary object of Div 11A as being the protection of children under the age of 16 from the various acts or matters outlawed by the provisions of that division.
It may mean that, in some cases, an offence will be committed in respect of a person who is known by the accused to be of the age of 16 or over. In such a case the offence is committed because the person is apparently under the age of 16. That is a possible side-effect of the clear intention of Parliament that a person should not be acquitted merely because the prosecution cannot prove the actual age of the person depicted, on the one hand or of the person incited or procured, on the other hand. It may also have an intended effect, at least in the case of s 63, that a person intent on producing child pornography should not be able to do so merely by selecting a person over the age of 16 who appears to be under that age. However, as the Chief Justice has demonstrated, the form of the extended definition of “child”, rather than strengthening the presumption in favour of the rule that failure to disprove an honest and reasonable belief as to the person’s age will result in acquittal, in fact reinforces the view that Parliament intended that the presumption should not apply, and there is no room in the provisions of those sections for the operation of any honest and reasonable belief as to the person’s age.
The fact that Div 11A of Part 3 of the Act is so clearly directed towards the protection of children under 16 from sexual exploitation, degradation and humiliation by means of the proscribed Acts is an important factor in determining whether the common law presumptions as to knowledge or as to an honest and reasonable belief as to the age of a child should apply.
The steps taken to ensure that the class is protected, even at the expense of including some children who may be over the age of 16, is an indication of the seriousness with which Parliament intended to protect the class, regardless of knowledge or belief of the perpetrator as to the actual age of the child concerned.
The words of the statute
The Chief Justice has analysed the nature of the provisions contained in ss 63 and 63B. He has referred in particular to the requirement for proof of knowledge of the pornographic nature of the material for an offence against s 63 and to the mental elements required to be proved for an offence against s 63B.[28]
[28] See paragraphs [20]-[22] above.
In those circumstances I consider that the absence of any reference in s 63 to “knowingly” producing child pornography or, in s 63B(1) to “knowingly” inciting or procuring is telling. It is reinforced by a consideration of the circumstances which may amount to aggravation set out in s 5AA(1) of the Act. It would appear that paragraphs (e), (g), (h), (i) and (j) could each apply to offences in Div 11A. Each of them either specifically requires proof of knowledge of the aggravating circumstance, or an appreciation or understanding of the existence of the aggravating circumstance. The contrast with the unqualified words of ss 63 and 63B is stark.
I also respectfully agree that the inclusion of an objective element in the definition of “child” is also significant for the reasons given by the Chief Justice.[29]
[29] See paragraphs [23]-[29] above.
I adhere to that view notwithstanding that there may appear to be little point in punishing a person for inciting a person over the age of 16 to commit an indecent act where that person merely appears to be under that age. I have already explained the apparent reason for the inclusion of that provision and how, in my view, it reinforces the view that the Proudman v Dayman defence was not intended to apply.
With respect, I also agree with the Chief Justice[30] that there is some support for the exclusion of the defence by reference to other provisions contained in Div 11 of the Act and the provision of limited defences to those offences which are absent from Div 11A. However, I would not wish to rely on those provisions alone. I consider that the provisions of Div 11A itself are compelling support for rebutting the presumption.
[30] See paragraphs [31]-[37] above.
The subject matter of the statute
In referring to the need to consider the subject matter of the statute, Gibbs CJ in He Kaw Teh[31] noted that the fact that a statutory provision dealt with “a grave social evil which the Parliament naturally intends should be rigorously suppressed” might suggest that the Parliament may have intended to make the offence an absolute one. He noted that the provision in question in that case (the importation into Australia of prohibited imports) involved acts which “are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty”. On the other hand, he noted that where the importation of heroin in commercial quantities was involved, the offence was “truly criminal”. In those circumstances he considered that it was “unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so”.
[31] (1985) 157 CLR 523 at 529-530.
On the other hand, Dawson J observed:[32]
Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders.
[32] Ibid at 595.
In my opinion, the social evil of child sexual abuse of the type which Div 11A seeks to prevent is now well-known and justifies a stringent approach. Proof of knowledge of the age of a teenage child and disproof of an honest and reasonable belief as to the age of such a child will often be difficult. In the words of Dawson J, it would “represent a real impediment to the successful prosecution of offenders”. The social evil sought to be prevented is sufficiently serious, if not to justify, at least to support the conclusion that Parliament intended that an accused person’s knowledge of or honest and reasonable belief in the true facts concerning the age of the child should be irrelevant in order to give adequate protection to the class defined by Parliament.
Whether a construction of absolute liability would promote observance of the statue
In discussing this aspect Gibbs CJ cited with approval the following passage of the judgment of the Privy Council in Lim Chin Aik v The Queen:[33]
"It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly ... which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."
[33] [1963] AC 160 at 174.
When speaking of this topic Dawson J in He Kaw Teh[34] put it this way:
The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed). It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. … A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.
[34] (1985) 157 CLR 523 at 567.
It is apparent, in the case of post-pubertal children under the age of 16, that it becomes much easier for an accused person to form an honest and reasonable belief, particularly in the case of a young girl, that the person is over 16. Without absolute liability it becomes difficult to enforce the Act in respect of such children. One returns to the object and purpose of the provisions. So long as it remains the protection of children under 16, if the Proudman v Dayman defence is available, a significant proportion of that group will become unprotected unless, as is unusual in the case of girls, they are also apparently under the age of 16.
As I have already observed, absolute liability for these offences will not punish accidental behaviour. The behaviour in each case can be avoided. Further steps than merely relying on what the offender was told or observed can be taken in order to verify a person’s age. If the offender chooses not to take those steps, it will be in the knowledge of the possibility that the person is in fact under the age of 16. The imposition of absolute liability for these offences would encourage greater vigilance to prevent the commission of the prohibited acts, and would therefore assist in enforcing the provisions of Div 11A. It would not, as was argued by the appellant, create a class of what were described as “luckless victims”.
The English cases
The Chief Justice has dealt in sufficient detail with the submissions that relied on the decisions of the House of Lords in B v Director of Public Prosecutions[35] and R v K.[36] I agree that those cases can be distinguished for the reasons given by the Chief Justice. It is not necessary to add further to those reasons.
[35] [2000] 2 AC 428, [2000] UKHL 13.
[36] [2002] 1 AC 462, [2001] UKHL 41.
Conclusion
I do not overlook the fact that these offences are serious criminal offences and may, in some circumstances, attract very substantial penalties. Nevertheless, I am persuaded that the Proudman v Dayman defence does not apply to these offences. My principal reasons for so deciding relate to the object and purpose of the legislation – an object and purpose which would be significantly impeded if the defence were to apply. I also place great reliance upon what I regard as the compelling wording and structure of the sections themselves as discussed by the Chief Justice. I consider that my conclusion is supported by the significance of the subject matter of Div 11A and by the fact that this construction will promote rather than detract from observance of the relevant sections in this Division. Accordingly, I would dismiss the appeal.
DAVID J: I would dismiss the appeal for the reasons given by the Chief Justice.