R v Clarke - [2007] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLARKE
Criminal Trial by Judge Alone
[2007] SADC 128
Reasons for the Verdict of His Honour Judge Boylan
6 December 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of producing child pornography and one count of inciting a child to commit an indecent act. Whether defence of honest and reasonable mistake available. Plea- not guilty on basis of her belief that the victims were aged 17.
Held, defence of honest and reasonable mistake not available. Verdict of guilty, both counts.
Criminal Law Consolidation Act 1935 s49, s49(3). s49(4), s56, s57, s57(3), s58, s62, s63, s63(a), s63B, s63B(1)(a), s80; Summary Offences Act 1935 s33; Child Sex Offenders Registration Act 2006 s6, Schedule 1, referred to.
Police v Pfeiffer (1996) 68 SASR 285; B v DPP [2000] 1 All ER 833; R v K [2002] 1 AC, applied.
He Kew Teh v The Queen (1985) 157 CLR 523; Sherras v De Rutzen [1895] 1 Q.B. 918; Gibson (1885) 11 VLR 94; CTM v R (2007) 171 A Crim R 371; Police v Kennedy (1998) 71 SASR 175 @ 186, considered.

R v CLARKE
[2007] SADC 128

Rebecca Jane Clarke, Renee Jean Malyschko and Daniel Troy Osis filmed two 14 year old girls engaged in an act of real or simulated cunnilingus. As a result, the three of them were jointly charged with one count of producing child pornography and with one count (even though there were two complainants) of inciting a child to commit an indecent act. To prove each of those charges, the prosecution must prove that the girls (or at least one of them) was under 16. Must the prosecution also prove either that the accused knew the girls were under 16, or that the accused did not honestly and reasonably believe that they were 16 or over? That was the issue at trial but it was an issue for Ms Clarke only. Osis and Ms Malyschko knew how old the girls were and they pleaded guilty. Ms Clarke maintained that she believed both girls were 17 and that such a belief is a defence to the charges. She pleaded not guilty and elected for trial before me, sitting without a jury. At the trial the prosecution submitted that, even if Ms Clarke held the belief to which I have referred, it did not provide a defence because, as to the age ingredient of the two offences, liability is absolute.
The prosecution’s submission is correct. Accordingly, while I am not satisfied beyond reasonable doubt that Ms Clarke knew the girls were under 16, and while I am not satisfied beyond reasonable doubt that she did not honestly and reasonably believe that they were 17, I enter verdicts of guilty on both counts. I now set out my reasons for those verdicts.
The Prosecution Case
The prosecution case consisted of undisputed witness statements, the film and its soundtrack, and a series of facts admitted by Ms Clarke.
Ms Clarke and Ms Malyschko were friends. They spent a Friday evening late in September 2005 drinking at clubs in Hindley Street. At about 11p.m., Mr Osis arrived in his car to collect them. With him were two girls who were then 14 years and 10 months and 14 years and 9 months old. Osis and Ms Malyschko had known the girls for a few weeks but Ms Clarke had not met them before. The five of them drove to the flat which Osis and Ms Malyschko shared at Glenelg North. There, there was music, drinking and dancing. The dancing became overtly sexual. Osis used a video camera to film it. The camera also recorded what was being said. After a while, all four females removed some of their clothing and there were various sexual acts which included the two young girls’ engaging in an act of actual or simulated cunnilingus. That act is the indecent act the subject of the incitement charge and the film of the event is the pornographic material the subject of the other charge.
The film is an accurate visual record of the relevant events. A police officer produced a transcript of the recorded conversation. Owing to the poor quality of the audio recording, that transcript is incomplete. I have used it only as an aide-memoire and I have directed myself that the evidence of the conversation is the audio recording itself. The film and soundtrack are relevant to the question of the apparent ages of the two girls. I shall return to that.
I could not tell from viewing the film whether the indecent act is one of actual or simulated cunnilingus. It does not matter, owing both to the act filmed and to Ms Clarke’s admission about it.
Ms Clarke admitted the following:
1.That she, Osis and Ms Malyschko produced child pornography within the meaning of S.62 of the Criminal Law Consolidation Act 1935
2. That that material is the film.
3.That she knew of the pornographic nature of the material at the time it was produced.
4.That she, Osis and Ms Malyschko incited the two girls to commit an indecent act.
The defence case
Ms Clarke gave evidence that she believed the girls were 17. She told me that she held that belief for a number of reasons but mainly because Ms Malyschko had told her so. Ms Clarke had not wanted to leave Hindley Street when Osis arrived in his car. She preferred to stay in the city and go to clubs where she could dance. But Ms Malyschko said that was not possible as the two girls were only 17 and would not be allowed into clubs. Ms Clarke also believed the girls were 17 because they were fairly heavily made up and were out late at night drinking with adults.
Ms Clarke was cross-examined closely about her asserted belief and particularly about the recorded conversation in which she said at difference times the following:
“Don’t you feel like you’re touching a 10 year old?”
“I feel like I am a child molester.”
“Are you two virgins?”
In addition to making those statements and asking that question, Ms Clarke admitted that she knew that the girls were still living at home with parents. She also admitted that she had heard Ms Malyschko say to them “You’re not going to dob me in to your dad?”. The prosecution submitted that Ms Clarke’s statements, her question, what she admitted she knew and what she overheard make it plain that she held no belief the girls were over 16.
Ms Clarke explained her comments by saying that her mention of 10 year olds was a reference to the girls’ small breasts but that having small breasts is not an unusual feature in a 17 year old. The reference to feeling like a child molester was an acknowledgement that the girls were immature compared with her and that they looked younger than she and Ms Malyschko. She asked the girls whether they were virgins because she was interested to know.
I am not going to deal with every piece of evidence. I have considered them all and, as I have said, I have seen the film. The girls could easily be taken to be 17. I accept Ms Clarke’s evidence that Ms Malyschko told her the girls were 17 and I found her explanations plausible. I am not satisfied that the prosecution has proved Ms Clarke knew the girls were under 16. Nor am I satisfied that the prosecution has proved that she did not honestly believe on reasonable grounds that they were 17. Indeed, I am satisfied on the balance of probabilities that Ms Clarke honestly and reasonably believed that the girls were 17. But her belief does not provide a defence because proof of knowledge of the girls’ ages is not required and the defence of honest and reasonable mistake of fact is not available.
I turn to the law.
Producing child pornography is an offence against Section 63(a) of the Criminal Law Consolidation Act, 1935 and the offence of inciting a child to commit an indecent act is an offence against Section 63B(1)(a) of that Act. Both sections appear in Division 11A of Part 3 of the Act. They are serious offences, attracting penalties of 10 years imprisonment for basic offences and 12 years for aggravated offences.(1) Convictions carry great social stigma and convicted persons may become registrable as child sex offenders.(2)
(1) A copy of Division 11A is attached to these reasons.
(2) Child Sex Offenders Registration Act, 2006, see s.6 and Schedule 1
Normally, one would expect that Ms Clarke could only be found guilty of such offences if she knew that what she had done was unlawful. That expectation is reflected in the legal presumption that a guilty mind is a necessary ingredient of every statutory offence.(3) If the presumption applied in these offences, the prosecution would have to prove either, that Ms Clarke knew the girls were under 16, or that she did not honestly (and perhaps reasonably) believe that they were 16 or older. But that presumption is rebuttable. If the effect of the sections is to render both knowledge and absence of belief irrelevant, then liability as to the age ingredient in each of the offences is absolute. Only in exceptional circumstances will a court conclude that Parliament intended to created an offence of absolute liability. Whether or not the presumption is rebutted depends upon the wording both of the whole Act and of the particular sections, and the scheme of the Act. Courts also consider whether absolute liability will promote the objects of the Act.(4) I have considered all of those matters and have come to the conclusion that both Sections 63(a) and 63B(1)(a) create offences of absolute liability as far as the age ingredient is concerned. In summary, my reasons for reaching that conclusion are these. Division 11A has been inserted into an Act which, for many years, has imposed strict liability for sexual offences against children under 16. It is clear from the wording of the particular sections and of the whole of Division 11A that Parliament adverted to the mental element of the various offences created by the Division but remained silent about any mental element as to the age ingredient. That silence indicates Parliament’s intention that liability be absolute as to age. Further, the purpose of Division 11A is to protect children from sexual exploitation.(5) Owing to the difficulty of proving the ages of children depicted in pornographic material, especially in imported material, the best way to promote the object of the Act is to cast upon “users” of pornographic material a responsibility to ensure they do not risk that the subjects depicted in the material are under the age of 16.
(3) Sherras v De Rutzen [1895] 1 Q.B. 918 at 921; He Kew Teh v The Queen (1985) 157 CLR 523 at 582
(4) See, for example, Police v Pfeiffer (1996) 68 SASR 285 at 287
(5) See Criminal Law Consolidation (Child Pornography) Amendment Bill Second Reading Speech Hansard 26 October 2004
The Statutory Scheme
The criminal laws of South Australia were consolidated in one Act by the Criminal Law Consolidation Act, 1935. The consolidation did not alter the law.(6) It is apparent from the scheme of the consolidating Act that, by 1935 at the latest, it was the policy of the law that there be absolute liability as to the age ingredient in sexual offences against children under 16. Sections 49, 56 and 57 make that clear when read individually, with each other, and with other provisions in the Act.
(6) See Criminal Law Bill (Consolidation) Second Reading Speech 3, December 1935. Parliamentary Debates S.A. 1935 Vol. 2 at 1851-2
Section 49 deals with offences of unlawful sexual intercourse. Section 49(3) makes it an offence to have sexual intercourse with a person under 17 years. Consent is not a defence. Section 49(4) provides a defence in limited circumstances only: belief on reasonable grounds that the alleged victim was 17 or over is a defence but only if the victim was 16 or over.
Section 56 deals with indecent assault. Again, consent is no defence. Section 57(3) provides a defence in limited circumstances. Belief on reasonable grounds that the alleged victim was over 17 is a defence, but only if the alleged victim was, in fact, 16 or over. By specifically providing defences only where the alleged victim is 16 or more, the Parliament has demonstrated its intention that liability be absolute when the victim is under 16.(7)
(7) And see Gibson (1885) 11 VLR 94, which dealt with a similar section
The present Section 58, which deals with offences of gross indecency with persons under 16, also appeared, though in a slightly different form, in the 1935 Act. Consent is no defence. No defence of mistake about age is provided for. The lack of provision for any such defence in the case of children under 16 in Section 58 is consistent with the absolute liability provisions in Sections 49 and 56. So, too, with Section 80 which makes it an offence to abduct children under 16. While that section requires a specific intention on some aspects of the offence, it is silent on the age aspect. Therefore, Section 80 also makes liability absolute as to the age aspect. Section 80 has always been interpreted in this way.(8)
(8) See R v Prince (1875) L.R. 2CCR 154 at 171-172, a case which dealt with the "Predecessor" to S.80
Accordingly, the scheme of the Act is to impose absolute liability in the case of sexual offences against children under 16. Absolute liability as to age in the two offences with which Ms Clarke has been charged is therefore consistent with that Statutory Scheme.
Before leaving this aspect of the matter I note that I have not overlooked recent English cases in which the House of Lords decided that liability as to the age ingredient was not absolute in the English equivalents of the offences of indecent assault and inciting a child to commit an act of gross indecency. (9) But those cases were decided on the basis that the relevant offences were not part of a coherent statutory scheme. As I have said, that has not been the case in South Australia. Ours is a coherent scheme as is that in New South Wales.(10)
(9) B. v DPP [2000] 1 All ER 833, expecially at 840 Per Lord Nicholls; R v K [2002] 1 AC
(10) See CTM v R (2007) 171 A Crim R 371
The Wording of Division 11A
The wording of the Division also indicates Parliament’s intention that liability be absolute as to the age ingredient.
“Child” is defined as “a person under, or apparently under, the age of 16 years”. That definition appeared in Section 33 of the Summary Offences Act 1953, which dealt with offences of child pornography until they were inserted into Division 11A. Bleby J considered the effect of the definition in Police & Kennedy.(11) His Honour pointed out that a court called upon to determine the apparent age of a child makes its decision according to the experience and common sense of ordinary, reasonable people. His Honour continued:
“It follows that, although the respondent may have genuinely held the opposite belief, it was a not a belief that could have been reasonably held by the respondent. In other words, once the conclusion is reached that the subjects depicted in the material are apparently under the age of 16, there can be no room for any honest and reasonable belief that they were not.”
With respect, His Honour’s reasoning must also apply to the definition in Division 11A. Further, the Parliament enacted Division 11A after His Honour’s decision had stood as good law for many years.
(11) Police v Kennedy (1998) 71 SASR 175 at 186
In enacting the various offences in Division 11A, Parliament has adverted to the mental elements of them. For example, in section 63 itself, knowledge of the pornographic nature of the material is required. Knowledge is also required to prove the offence in section 63A(1) and, subsection (2) of that same section provides a defence in the case of possession of unsolicited child pornography. In section 63B(1)(b) it is an element of the offence there created that the accused have a particular purpose, namely, a prurient purpose.
The Wording of the Particular Sections
I have already referred to Section 63. That Section specifically includes mens rea with respect to one of the external elements of the offence. The prosecution must prove that the accused knew of the pornographic nature of the material. By specifically including mens rea as an essential ingredient of that aspect of the offence and not adverting at all to mens rea with respect to the age ingredient, the Parliament has indicated an intention that liability be absolute with respect to the latter ingredient. Were Parliament’s intention otherwise, one would have expected it to say so. Similarly, Subsection (b) of Section 63B(1) requires that the accused have a prurient purpose. Having adverted to the mental element in one aspect of one of the offences created by Section 63B, Parliament has remained silent about the mental element in Subsection (a). In those circumstances, again, Parliament’s silence is an indicator of absolute liability as to the age ingredient. Therefore, the wording of Division 11A generally and of the relevant sections in particular support my conclusion of absolute liability.
Will Absolute Liability Promote the Objects of the Act?
Division 11A is fairly new. It was inserted into the Criminal Law Consolidation Act in 2005. Before then, offences of child pornography had been dealt with in Section 33 of the Summary Offences Act 1933. Division 11A is wider than were the relevant parts of Section 33: the definition of child pornography is wider and penalties have been increased. The former Section 58A of the Criminal Law Consolidation Act was amended and moved into Division 11A as Section 63B. Section 58A dealt with inciting or procuring children to commit indecent acts. By Section 58A(1) it was made an offence for a person to incite or procure the commission by a child of an indecent act but there was a mental element, namely, to gratify prurient interest. Section 63B(1)(a) also creates an offence of inciting or procuring the commission by a child of an indecent act but it does not require that there be a prurient purpose. That Subsection is wider than its predecessor. It is plain that the Parliament when it enacted Division 11A intended further to protect children by widening the various offences and increasing penalties. Parliament’s purpose, in my view, will be assisted by the imposition of absolute liability as to the age ingredient. Such liability casts upon the users and creators of child pornography a duty to ensure that the subjects of that pornography are not under 16. As Justice Bleby pointed out in Kennedy, albeit in a slightly different context, there is nothing unreasonable in that. Dealing with the offence of possession of child pornography under Section 33 of the Summary Offences Act, His Honour said that absolute liability did not produce a harsh result. His Honour went on:
“Indeed, only those whose genuine but mistaken belief was unreasonable would be convicted. If it were a reasonable belief that the subject was apparently under 16, it is a belief or conclusion that one should expect to be shared by a court or jury.”
His Honour’s words apply with equal force to the offences with which Ms Clarke has been charged.
The Verdicts
I have already recorded verdicts of guilty of both offences. I should add that, owing to Ms Clarke’s admissions, I am satisfied beyond reasonable doubt that all elements of the offences have been proved. In the circumstances of this case, it is not necessary for me to set out the particular directions which I have given myself.
An Evidentiary Matter
Some time after I adjourned to consider my verdicts in this matter, the Crown applied to reopen its case. I permitted the Prosecution to do so for the purpose of tendering a further declaration. That declaration contained evidence that on an occasion on which Ms Clarke was not present, a third party had heard Ms Malyschko say that the two girls were 17. I heard argument about the admissibility or otherwise of that evidence. I shall not rule on it as I have ignored it. As I have already said, I accepted Ms Clarke’s evidence about her state of mind and the reasons for it. Accordingly, there was no need for me to consider the admissibility of the later evidence.
Division 11A—Child pornography and related offences
62—Interpretation
In this Division—
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;
disseminate—a person disseminates child pornography if the person—
(a)sends, supplies, exhibits, transmits or communicates it to another, or enters into an agreement or arrangement to do so; or
(b)makes it available for access by another (including access by means of a computer) or enters into an agreement or arrangement to do so;
material includes—
(a)any written or printed material; or
(b)any picture, painting or drawing; or
(c)any carving, sculpture, statue or figure; or
(d)any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e)any film, tape, disc, or other object or system containing any such information or data;
pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic;
private act means—
(a)a sexual act; or
(b)an act involving an intimate bodily function such as using a toilet; or
(c)an act or activity involving undressing to a point where the body is clothed only in undergarments; or
(d)an activity involving nudity or exposure or partial exposure of sexual organs, pubic area, buttocks or female breasts;
prurient purpose—a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.
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:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
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—
(i)if it is a basic offence—imprisonment for 5 years;
(ii)if it is an aggravated offence—imprisonment for 7 years;
(b)for a subsequent offence—
(i)if it is a basic offence—imprisonment for 7 years;
(ii)if it is an aggravated offence—imprisonment for 10 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)In determining whether an offence against subsection (1) is a first or subsequent offence, a court must treat a previous offence involving child pornography against any provision of this Division, or a corresponding previous enactment, as a previous offence.
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:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
(2)Subsection (1) applies whether the acts alleged to constitute the offence—
(a)occur in private or in public; or
(b)occur with or without the consent of the child, or the child's parent or guardian.
(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:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
63C—Pornographic nature of material
(1)In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive material that is inherently pornographic of that character.
(2)No offence is committed against this Division by reason of the production, dissemination or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge.
(3)No offence is committed against this Division by reason of the production, dissemination or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on aspects of the work that might otherwise be considered pornographic.
(4)No offence is committed against this Division by reason of—
(a)the possession or dissemination of a publication, film or computer game that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 (unless it is classified as a publication for which classification is refused (RC)); or
(b)the possession of a publication, film or computer game for the purposes of obtaining a classification under that Act.