R v Gedling - [2007] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GEDLING
[2007] SADC 124
Reasons for Ruling of His Honour Judge Millsteed
21 November 2007
CRIMINAL LAW
Defendant charged with making a communication with intent to procure a child to engage in, or submit to, sexual activity contrary to s63B(3)(a) of the Criminal Law Consolidation Act 1935 - whether prosecution required to prove that the defendant knew that the recipient of the communication was a "child" as defined in the legislation or did not have an honest and reasonable belief to the contrary - held that prosecution was under no such obligation.
Criminal Law Consolidation Act 1935 s63B(3), s63B(3)(a); Summary Offences Act 1953 s33(2), s33(3); Criminal Law Consolidation (Child Pornography) Amendment Act 2005 s63B(1), s63B(1)(b)(i), s63B(1)(b)(ii); Criminal Code Act 1995 (Cth) s474.26(1), s474.26(2), referred to.
Proudman v Dayman (1941) 67 CLR 536; Jiminez v The Queen (1992) 173 CLR 572; He Kaw Teh v The Queen (1985) 157 CLR 523; Police v Pfeiffer (1997) 68 SASR 285; Police v Kennedy (1998) 71 SASR 175; CTM v R (2007) 171 A Crim R 371; R v Prince (1875) LR 2 CCR 154; R v Kennedy (1980) 3 A Crim R 40, considered.

R v GEDLING
[2007] SADC 124
Introduction

On 25 September 2007, the defendant, Lloyd Alexander Gedling was convicted by a jury of the offence of making a communication with intent to procure a child to engage in, or submit to, sexual activity contrary to s63B(3)(a) of the Criminal Law Consolidation Act 1935 (“the CLCA”).
Prior to the empanelment of the jury, and because the issue had not been previously judicially determined, I was invited by counsel to rule on whether it was necessary for the prosecution to prove that the defendant knew that the recipient of the communication was a “child” as defined in the legislation or did not have an honest and reasonable belief to the contrary. I ruled that the prosecution was under no such obligation. At the time I indicated that I would give reasons for my ruling later. These are my reasons.
The legislation
Section 63B(3)(a) is contained in Division 11A of the CLCA which is headed “Child pornography and related offences”. The provisions in the Division relevantly state:
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;
…
pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic;
…
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.
The offence with which the defendant was charged is italicized above.
Background
The evidence presented against the defendant established that he entered an internet or on-line chat room and communicated with a person identified as “Becca 14_2006” on four occasions between 16 and 18 December 2006. “Becca” was in fact a police officer participating in an undercover operation set up to detect adults using the internet for the purpose of procuring children to engage in sexual activity. In the communications “Becca” was represented by the police officer to be a 14 year old school girl who lived with her single mother. The defendant discussed with “Becca” matters of a sexual nature and suggested meeting her so that she could fondle his penis and possibly engage in other sexual acts with him.
The police arrested and interviewed the defendant on 18 December 2006. He asserted that he believed that “Becca” was older than 14 but was not asked, and did not state, what age he believed her to be. The defendant further asserted that he never intended to procure “Becca” to engage in, or submit to, sexual activity. Indeed, he said that he never intended to meet her at all. At trial the defendant gave evidence consistent with his record of interview but added that he believed that “Becca” was a mature woman posing as a child. He maintained that he never intended to meet “Becca” and thought that the two of them were playing a game.
It was common ground between the prosecution and the defence that in order to prove the charge the prosecution had to establish (1) that the recipient of the communication was a child as defined in the legislation and (2) that the defendant made the communication with the intention of procuring the recipient to engage in, or submit to, sexual activity. In relation to the second requirement it is evident from the jury’s verdict that they rejected the defendant’s assertion that he did not communicate with “Becca” with the requisite intention.
In relation to the first requirement the defence did not dispute that it was open to the jury to find that the defendant had communicated with a person who was “apparently” under the age of 16, having regard to the way in which “Becca” was represented in the communications. The contentious issue was whether the prosecution was also required to prove that the defendant knew that the recipient was not a person apparently under the age of 16 or did not have an honest and reasonable belief to the contrary.
As I have said, I ruled that the prosecution was under no such obligation. Accordingly, I directed the jury that in order to prove an offence under s63B(3) the prosecution were required to establish beyond reasonable doubt:
·that the defendant made a communication;
·that the defendant did so with the intention of procuring the recipient of the communication to engage in, or submit to, sexual activity; and
·that the recipient was a child as defined by the legislation, namely, a person under, or apparently under the age of 16.
General principles
Statutory offences fall into three broad categories. An offence may involve a subjective fault element or mens rea; be a strict liability offence where no fault element need be proved, but a defence of honest and reasonable mistake of fact is open to the defendant (sometimes referred to as the Proudman v Dayman[1] defence); or be an absolute liability offence where no fault element needs to be proved and the Proudman v Dayman defence is not available.[2]
[1] (1941) 67 CLR 536
[2] See S Bronitt and B McSherry, Principles of Criminal Law 2nd ed (Law Book Company, Sydney) at 187; Chiou Yaou Fa v Morris (1987) 46 NTR 1 at 19
The Proudman v Dayman defence may arise where the accused entertains an honest and reasonable belief in a state of facts, which if they existed, would make the defendant’s act innocent.[3] In Jiminez v The Queen[4] the High Court said:[5]
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 establising 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.
[3] (1941) 67 CLR 536
[4] (1992) 173 CLR 572
[5] Ibid at 582
The question of which category a statutory offence falls into is a matter of statutory construction. In He Kaw Teh v The Queen[6] the High Court enunciated the general principles to be applied by courts faced with this task. In Police v Pfeiffer[7] Doyle CJ summarized the principles expressed in He KawTeh as follows:
First, as Brennan J said (at 565):
“When a statute creates and defines an offence only by reference to its external elements, the mental element is usually implied in the definition … The mental element is mens rea or guilty mind.”
Secondly, the implication or presumption of a guilty mind may be rebutted, but a court should not lightly conclude that Parliament intended to create an offence involving no mental element other than the voluntariness of the conduct in question. The issue raised is, in the end, one of Parliament’s intention as manifested by the terms of the relevant statute.
Thirdly, the concept of a guilty mind is not a reference to a single state of mind, such as intent. Depending upon the offence, and sometimes upon the element of the offence in question, the relevant state of mind might be intent, knowledge, foresight of a given consequence and so on.
Fourthly, that even if intention to bring about a given state of affairs, or knowledge that a given state of affairs is likely to eventuate, is not an element of offence, it does not follow that the offence is one of absolute liability. In Australia the mental element required for an offence can also be described as an absence of an honest and reasonable belief in the existence of facts which would have made the relevant act innocent. Unless the offence is one of absolute liability, if the issue is raised on the facts, the prosecution must establish the absence of what I will, for convenience, call an honest and reasonable belief. If the conclusion is that the absence of such belief is an element of the offence, it is for the prosecution to establish that absence before a conviction can be secured.
[6] (1985) 157 CLR 523
[7] (1997) 68 SASR 285
Doyle CJ went on to say:[8]
There, the majority affirmed that statutes that create offences are to be read in the light of the presumption that a guilty mind is an essential ingredient of every offence, but that that presumption may be rebutted in the light of the terms of the statute or the subject matter with which the statute deals: Gibbs CJ at 528, Brennan J at 565-566, Dawson J at 590-591. Their Honours also noted that if a guilty mind is an element of the offence, there remains the question of identifying the mental state required to constitute the relevant guilty mind: Gibbs CJ at 529, Brennan J at 568-569.
[8] Ibid at 290
In relation to s63B(3) it is clear that Parliament did not intend to create an offence involving no mental element other than voluntariness. At the very least the section requires the prosecution to prove that the accused intended to procure the recipient of the communication to engage in, or submit to, a sexual activity. The relevant question is whether the section also requires that the accused must have known that the recipient was not a child (as defined) or did not have a honest and reasonable belief to the contrary.
Because there is a presumption in favour of mens rea, or the operation of a Proudman v Dayman defence, any inference to the contrary must be clear and compelling. However, such an inference may arise from a consideration of the provisions creating the offence in the context of the legislative history of such provisions and in light of the legislative scheme in which the new provisions are to reside.[9]
[9] CTM v R (2007) 171 A Crim R 371 at [86]
The history and purpose of the legislation
Division 11A was inserted by the Criminal Law Consolidation (Child Pornography) Amendment Act[10] (“the CPA”) which came into operation on 30 January 2005. In their original form sections 63, 63A and 63B did not distinguish between aggravated and basic offences in relation to penalty. This distinction was introduced by the Statutes Amendment (Sentencing of Sex Offenders Act) 2005[11] (“the SSOA”) which came into effect on 15 May 2006. The amendment resulted in the introduction of heavier penalties for aggravated offences.[12]
[10] Act 52 of 2004
[11] Act 31 of 2005
[12] Pursuant to s5 and s5AA of the Act an aggravated offence is one in which the offender committed the offence knowing that the victim was, at the time of the offence, under the age of 14 years. A basic offence is a reference to an offence in its non-aggravated form.
It is instructive to consider the changes that the CPA made to the previous law governing child pornography and related offences. First, it repealed s58A of the Act and replaced it with s63B(1). Under s58A it was an offence if a person, for prurient purposes, incited or procured the commission by a child of an indecent act or caused or induced a child to expose any part of his or her body. The maximum penalty for a first offence was imprisonment for a term not exceeding two years and for a subsequent offence imprisonment for a term not exceeding three years.
Under s63B(1)(a) it remains an offence to cause or to induce a child to expose any part of his or her body for a prurient purpose. It also remains an offence for a person to incite or procure a child to commit an indecent act. However, it is not a requirement that the incitement or procurement be for a prurient purpose (s63B(1)(b)(i)). The new section also makes it an offence for a person to make, for a prurient purpose, a photographic, electronic or other record from which the image of a child engaged in a private act may be reproduced (s63B(1)(b)(ii)). Initially the maximum penalty for a breach of s63B(1) was 10 years. However, this was changed by the SSOA to imprisonment for a term not exceeding 10 years for a basic offence and 12 years for an aggravated offence. In short, the new section had the effect of widening the conduct previously proscribed and significantly increasing penalties.
The CPA also made changes to the law relating to child pornography. Under s33(2) of the Summary Offences Act 1953 (“the SOA”) it was an offence to produce, to sell or to exhibit in a public place or to certain people and to do certain other acts with respect to “indecent material” or “offensive material”. The maximum penalty for this offence was greater if the material involved “child pornography”. If the offence involved child pornography the maximum penalty was imprisonment for two years for a first offence and imprisonment for four years for a subsequent offence. In any other case the penalty was $20,000 or imprisonment for six months. Pursuant to s33(3) it was also an offence to be in possession of child pornography. This offence attracted a maximum penalty of $5,000 or imprisonment for one year.
The provisions in the SOA relating to child pornography were repealed and replaced in the Act by s63 (production and dissemination of child pornography) and s63A (possession of child pornography). The CPA broadened the definition of child pornography (see s62) and increased the penalties for producing, disseminating or possessing child pornography. The penalties were further increased by the SSOA in relation to aggravated offences. For example, in relation to the offence of possession of child pornography the maximum penalty was increased by the CPA to five years imprisonment for a first offence and seven years imprisonment for a subsequent offence. By virtue of the SSOA the penalty for an aggravated offence of possession of child pornography was increased to imprisonment for seven years, for a first offence, and 10 years for a subsequent offence.
In addition to these changes the CPA introduced the new offence of procuring a child or communicating with a child with the intention of procuring the child to engage in, or submit to sexual activity (s63B(3)(a)) or making a communication for a prurient purpose and with the intention of making a child amenable to sexual activity (s63B(3)(b)).

It is evident from this brief review of the changes brought about by the enactment of Division 11A, that its purpose or object was to widen and strengthen the laws governing child pornography and related offences. This is confirmed by the Parliamentary debates which accompanied the introduction of the legislation in Parliament.[13]
[13] Reference may be made to Parliamentary debates to establish the purpose of the legislation and the mischief it was designed to overcome, regardless of whether there is manifest ambiguity in the provision concerned: R v Kennedy (1998) 71 SASR 175 at 184 and authorities cited therein.
In the Second Reading Speech the Attorney-General said:[14]
The bill will make amendments to the Criminal Law Consolidation Act and consequential amendments to the Summary Offences Act. The amendments will move the child pornography offences from the Summary Offences Act into the Criminal Law Consolidation Act, the aims of the provisions being the protection of children from exploitation, degradation and humiliation remain. Child pornography is a heinous exploitation of children, and the demand for such materials fuels its production and supply. The purpose of these amendments is to reduce and, as far as possible, eliminate the possession, production, supply and sale of child pornography.
These amendments will increase the penalties for the offence of possession of child pornography and for the production or dissemination of child pornography. The bill will introduce new offences of procuring and grooming a child for the purpose of engaging in sexual acts, and filming or photographing children for prurient purposes. The increase in penalties for child pornography offences is in line with moves in other jurisdictions to increase penalties for these offences.
[14] Hansard, 26 October 2004 at 561
The Attorney-General went on to say:[15]
On 30 August 2004, the Commonwealth passed amendments to the Criminal Code Act 1995 (Cth) that created offences for using the internet for the purposes of disseminating, accessing or downloading child pornography and child abuse material. The Commonwealth drafted the amendments so that the States and Territories would also be able to legislate in this area without running into constitutional problems.
The Bill will reflect some of the Commonwealth internet provisions with some minor amendments. Nowadays, pederasts search through chat rooms, newsgroups and other internet services to find children to prey upon. Some pederasts use pornographic images as part of the manipulation process to entice children into so called ‘positive’ sexual encounters with adults.
The Bill will introduce new offences of communicating with a child with the intention of procuring a child to engage in, or submit to, a sexual activity, and communicating, for a prurient purpose, with the intention of making a child amenable to sexual activity. The offences are drafted as separate offences, which is appropriate, given that grooming is a preparatory offence and procuring involves more substantial acts.
[15] Hansard, 26 October 2004 at 562
Later in my reasons[16] I return to discuss another aspect of the Attorney- General’s speech.
[16] [59] - [60]
Statutory precursors
It is of assistance to consider the mental element of the offences contained in s33(3) of the SOA and s58A of the CLCA, which have now been replaced by s63A and s63B(1), respectively.
Section 33 relevantly provided:
(1) In this section—
child means a person under, or apparently under, the age of 16 years;
child pornography means indecent or offensive material in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause serious and general offence amongst reasonable adult members of the community;
…
…
indecent material means material that is, in whole or in part, of an indecent, immoral or obscene nature;
…
…
offensive material means material—
(a)     of which the subject matter is or includes—
(i)    violence or cruelty; or
(ii)the manufacture, acquisition, supply or use of instruments of violence or cruelty; or
(iii)the manufacture, acquisition, supply, administration or use of drugs; or
(iv)     instruction in crime; or
(v)     revolting or abhorrent phenomena; and
(b)which would cause serious and general offence amongst reasonable adult members of the community;
…
(2)     A person who—
(a)     produces, or takes any step in the production of, indecent or offensive material for the purpose of sale; or
(b)     sells indecent or offensive material; or
(c)     exhibits indecent or offensive material in a public place or so as to be visible from a public place; or
(d)     deposits indecent or offensive material in a public place or, except with the permission of the occupier, in or on private premises; or
(e)     exhibits indecent material to a person so as to offend or insult that person; or
(f)    delivers or exhibits indecent or offensive material to a minor (other than a minor of whom the person is a parent or guardian); or
(g)     being a parent or guardian of a minor, causes or permits the minor to deliver or exhibit indecent or offensive material to another person; or
(h)     causes or permits a person to do an act referred to in a preceding paragraph of this subsection,
is guilty of an offence.
Maximum penalty:
(a)     if the offence involves child pornography—for a first offence, imprisonment for 2 years and for a second or subsequent offence, imprisonment for 4 years;
(b)     in any other case—$20 000 or imprisonment for 6 months.
(3)    A person who is in possession of child pornography is guilty of an offence.
Penalty: Division 6 fine or imprisonment.
(4)In proceedings for an offence against this section, the circumstances of the production, sale, exhibition, delivery or possession of material to which the charge relates and its use or intended use may be taken into account in determining whether the material was indecent or offensive material, but, if the material was inherently indecent or offensive material, the circumstances of its production, sale, exhibition, delivery or possession or its use or intended use cannot be taken to have deprived it of that character.
(5)     Despite the preceding provisions of this section -
(a)     no offence is committed by reason of the production, sale, exhibition, delivery or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge; and
(b)     no offence is committed by reason of the production, sale, exhibition, delivery 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 its indecent or offensive aspects. …
It is to be observed that s33(1) defined “child” in the same terms as the current definition (s62) namely, a person under, or apparently under, the age of 16 years.
In Police v Kennedy[17] Bleby J was required to consider the mental element of the offence created by s33(3). His Honour held that in order to prove the offence the prosecution was not required to prove that the accused knew that the person depicted in the pornographic material was a child, as defined in the legislation, or that the accused did not honestly and reasonably believe the contrary.
[17] (1998) 71 SASR 175
In reaching this conclusion Bleby J considered that the object and purpose of the legislation was the prevention of sexual abuse and exploitation of children. His Honour went on to say:[18]
Assuming that it is otherwise established that the material depicts or describes a child, if a successful prosecution required proof of the possessor’s state of knowledge or belief as to the age or apparent age of the persons depicted, it would be very difficult to prove an offence other than, perhaps, in the case of prepubescent children of such an age that no-one could possibly hold a belief that the subject was not under 16. Proof of knowledge of the age or apparent age of the person depicted would therefore militate against fulfilment of the object of the legislation.
[18] Ibid at 185
Bleby J also considered that the limited statutory defencers provided for in subs (4) and (5) of s33 indicated that Parliament had intended to exclude as a defence lack of knowledge or belief as to the nature and quality of the material.[19] Furthermore, Parliament had not qualified the phrase “in possession of” with the word “knowingly” or “without lawful excuse”, such as would more readily give rise to the inference that a state of relevant knowledge or belief is necessary.[20]
[19] Ibid at 186
[20] Ibid at 186
Bleby J found the definition of child to be significant. He said:[21]
There is one further reason why in the circumstances of this section I would not consider it necessary to prove knowledge on the part of the appellant of the nature and quality of the material by proving knowledge that a person depicted in the material is apparently under the age of 16. It will be apparent from what I have said below in relation to the other ground of appeal that whether a person is apparently under the age of 16 is a question of fact to be determined by the magistrate. In that regard, the magistrate may or may not be assisted by the leading of expert evidence. However, ultimately the magistrate must exercise his or her fact-finding role. Where that involves, as it does here, a qualitative assessment of a person’s apparent age, that will be a matter of judgment, based on all the evidence, and on which the magistrate will bring to bear his or her own experience, commonsense and judgment, in the same way as a member of a jury would be required to do if this were an indictable offence. If, according to the experience and commonsense of ordinary and reasonable people, a person is apparently under the age of 16, it follows that, although the respondent may have genuinely held the opposite belief, it was 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.
[21] Ibid at 186
In my opinion the reasoning of Bleby J applies to the new offence of possession of child pornography.
Under s63A(1)(a) a person commits an offence if he or she “is in possession of child pornography knowing of its pornographic nature”. It is clear that before an accused person can be convicted of this offence he or she must have knowledge of the “pornographic nature” of the material. But the phrase “in possession of child pornography” is not qualified by the word “knowing”, or some similar expression, as would more readily give rise to the inference that knowledge or belief that the person depicted in the material was a child is necessary.
The requirement that the accused have knowledge of the material’s “pornographic nature” is satisfied if the prosecution proves that the offender was aware of “the aspects of the material by reason of which it is pornographic” (see definition of “pornographic nature of child pornography” — s62 at [3]). In other words, the prosecution must prove that the offender knew that the relevant material described or depicted a person engaging in sexual activity, or consisted of, or contained, the image of a person, or bodily parts of a person, and that it was intended, or apparently intended, to excite or gratify sexual interest (see definition of “child pornography” – s62). The accused would be guilty of the offence if the prosecution proved that he was in possession of such material knowing of its pornographic nature and, further proved, that the person depicted in the pornographic material was a child under, or apparently under the age of 16.
This interpretation is consistent with the fact that Parliament has provided for only a limited defence to a charge of possessing child pornography. The defence is available if the defendant proves “that the material … 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” (s63A(2)). No express provision is made for a defence of honest and reasonable mistake of fact in respect of the child’s age.
Furthermore, the definition of “child” is the same. As Bleby J observed in Police v Kennedy the question of whether a person is apparently under 16 is a question of fact to be determined by the trier of fact. If the trier of fact is satisfied beyond reasonable doubt that the person depicted in the pornographic material is apparently under 16 there is no scope for a finding that the defendant reasonably believed the contrary.
In the circumstances there is no warrant for reading into s63A a mental element, or defence, that did not exist under s33(3), bearing in mind the policy of the CPA was to widen and strengthen the previous law. In my view, if Parliament intended otherwise it would have made specific provision for the defence of honest and reasonable mistake of fact to overcome the effect of Police v Kennedy, a decision that has stood for nearly 10 years.
I turn to consider s58A. This section provided:
(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.
I am not aware of any reported decision dealing with the mental element of this offence. However, trial judges have always directed juries that the prosecution was not required to prove the accused knew or believed that the child was under 16 years.[22] This is consistent with the law relating to other statutory sexual offences involving children to which I will turn in a moment.
[22] See Juris direction for elements of Gross Indecency
In my view, there is no relevant distinction between s58A and its successor s63B(1). Once again there is no sound basis for reading into the new provision a mental element or defence that was not available under the old provision. Such an approach would be inconsistent with the legislative objective of widening and strengthening the previous law.
If, as I believe, the Proudman v Dayman defence is not available in relation to the offence of possession of child pornography (s63A(1)) and procuring a child to commit an indecent act (s63B(1)), it is difficult to accept that Parliament would have taken a different approach to s63B(3) and other offences contained in Division 11A. To allow Proudman v Dayman to operate in such a limited way would give rise to unacceptable inconsistency between the relevant provisions.
Mental element of other sexual offences
It is also relevant to consider the legislative setting in which Division 11A resides. To deny persons charged with offences under Division 11A, a defence of honest and reasonable mistaken belief as to age is consistent with the construction of other statutory sexual offences involving children under 16 years contained in the CLCA.
Under s49 a person who has sexual intercourse with another person is liable to imprisonment for life if the other person is under the age of 14 years (s49(1)) and to imprisonment for 10 years if the other person is under 17 years (s49(3)). By virtue of s49(7) consent to sexual intercourse is not a defence to a charge of unlawful sexual intercourse. However, s49(4) relevantly provides:
(4)     It shall be a defence to a charge under subsection (3) to prove that —
(a)     the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b)     the accused –
(i)was, on the date on which the offence is alleged to have had sexual intercourse was on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
…
It has long been recognized in relation to this offence, and its interstate counterparts, that where a defendant mistakenly believes that the victim is over 17 years, but does not come within the limited defence provided by s49(4), that he does so at his peril. In such a case the prosecution does not have to prove that the accused knew that the child was under age or prove that he did not have a contrary honest and reasonable belief. No defence based on mistaken belief as to age is available where the child is under 16 years.[23]
[23] See R v Peters [1956] VLR 743
In the recent case of CTM v R[24] the New South Wales Court of Criminal Appeal held that the Proudman v Dayman defence had no application in the context of comparable legislation governing unlawful sexual intercourse or carnal knowledge.
[24] (2007) 171 A Crim R 371
Similarly, in relation to a charge of indecent assault under s56, no person under the age of 17 years is deemed capable of consenting to an assault (s57(2)) except where the person is between the age of 16 and 17 years and the accused proves that, at the time, he or she was under 17 or that he or she believed on reasonable grounds that the person was of, or above the age of, 17 years. Again, no defence based on a mistaken belief as to age is available where the victim is under 16 years.[25]
[25] See R v Gibson (1885) 11 VLR 94
Furthermore, in relation to abduction of children s80 provides:
(1)     Any person who –
(a)     unlawfully, either by force or fraud, leads, takes, decoys or entices away, or detains, any child under the age of sixteen years;
(b)     harbours or receives any such child, knowing him or her to have been, by force or fraud, led, taken, decoyed or enticed away, or detained;
with intent -
(c)     to deprive any parent, guardian or other person, having the lawful care of the child, of the possession of the child; or
(d)    to steal any article on or about the person of the child,
shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(1a)Any person who unlawfully takes, or causes to be taken, a child under the age of sixteen years out of the possession and against the will of the parent, guardian or other person having the lawful care of the child shall be guilty of an offence and liable to imprisonment for a term not exceeding two years.
(2)   This section does not render liable to prosecution any person who, in the exercise of any bona fide claim to the right to possession of a child, whether as the mother or father of the child or otherwise, obtains possession of the child or takes the child out of the possession of any person having the lawful charge of the child.
Section 80(1a) and its predecessors were modelled on s55 of 24 & 25 Vict. c.100, which provided that it was an offence to “unlawfully take any unmarried girl, being under the age of sixteen years, out of the possession of her mother and father and against the will of her father and mother, or of any other person having the lawful care or charge of her”. In R v Prince[26] it was held that the accused’s reasonable belief that the victim was over 16 was no defence. The approach in Prince has been widely applied to statutory offences involving abduction of minors in the absence of a contrary legislative intent. (See for example the decision of the Court of Appeal (Vic) in R v Kennedy.)[27]
[26] (1875) LR 2, CCR 154
[27] (1980) 3 A Crim R 40

In my view, it is significant that a defence of mistaken belief is not available in the context of the statutory offences that I have canvassed except to a limited extent and does not at all to offences involving a child under 16. It is difficult to accept that Parliament would have taken a different approach to the offences contained in Division 11A having regard to the policy underpinning those provisions.
Further consideration of s63B(3)
Moreover, the reasoning in Police v Kennedy is directly applicable to s63B(3)(a).
First, the phrases “procures a child” and “procuring a child” (to engage in or submit to sexual activity) are not qualified by the word “knowingly” or some similar expression. Second, unlike the offence of possession of child pornography (s63A(1)) the section does not (by marked contrast to the offences of unlawful sexual intercourse (s49) and indecent assault (s56)) expressly provide for any defence based on mistaken belief. Third, for reasons previously discussed, the extension of the definition of “child” to a person apparently under the age of 16 effectively removes any scope for the operation of the Proudman v Dayman defence.
Finally, to require proof of knowledge, or the absence of a contrary belief in relation to the age or apparent age of the child, would undermine Parliament’s intention to protect children from sexual exploitation through the internet and other mediums of communication. For example, the only evidence that the recipient of a communication over the internet was a child may be a photograph sent to the accused. As Bleby J observed in Police vKennedy in such a case “it would be very difficult to prove an offence other than in the case of prepubescent children of such an age that no-one could possibly hold a belief that the subject was not under 16.” Where no such photograph was sent the only evidence that the recipient was under, or apparently under, 16 might be the recipient’s description of himself or herself. In this type of case it could, depending on the details of the description provided by the recipient, be even more difficult to prove the commission of an offence.
I acknowledge that my construction of s63B(3) may be seen as draconian in that a person could be convicted of an offence though he or she genuinely believed that they were dealing with a person over 16. But this construction is no more draconian than other statutory offences involving children aged under 16 which do not allow for a defence of mistaken belief as to age.
As Howie J observed in CTM[28] in respect of carnal knowledge:
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 s66C(3) is what the appellant referred to as “the absurdly Draconian result” of the possibility of 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.
This is a powerful argument but I am compelled largely by the history of the provisions, the manifest inconsistencies that would arise if the common law defence applied to the offences under s66C, and the clear policy of Parliament, to find that there was a legislative intent that such a defence would not apply to the new offences, or otherwise, once s77(2) was repealed. I come to this conclusion bearing in mind the significance of finding against the presumption of mens rea for serious offences.
[28] (2007) 171 A Crim R 371 at [137]-[139]
These remarks are germane to the offences created by Division 11A.
Commonwealth and interstate legislation
There is another relevant consideration. As earlier observed, Division 11A was intended to reflect some of the Commonwealth provisions with certain amendments.[29] Significantly, the provisions in the Criminal Code Act 1995 (Cth),[30] which make it an offence to use a carriage service to procure a person under 16 to engage in or submit to sexual activity, require the prosecution to prove that the defendant believed that the recipient of the communication was under 16. It is to be observed that similar interstate provisions[31] specifically provide for a defence of mistaken belief as to age.
[29] See Second Reading Speech at [24]
[30] s474.26(1), s474.26(2)
[31] Crimes Act 1900 (ACT) s66; Criminal Code Act 1899 (Qld) s218A; Criminal Code Act 1924 (Tas) s125D; TheCriminal Code (WA) s204B. There is currently before the Parliament of NSW a Bill similar to the CPA
It is difficult to accept that Parliament intended to allow for a defence of mistaken belief under s63B(3) when the provision was enacted against the background of the Commonwealth having made belief as to age an element of the offence. It seems to me that the legislature in this State made a deliberate decision to take a more strict approach to Division 11A offences. This accords with its strict approach to other sexual offences involving children under 16.
Police operations
Earlier I indicated that I would return to an aspect of the Attorney-General’s Second Reading Speech in relation to the CPA Bill. The relevant passage is as follows:
The Bill excludes from the orbit of the new offence the situation where a police officer, using the internet, poses as a child to attract those who would “groom” or procure a child for pornographic purposes. The Bill does this by referring to making a communication with the intention of procuring a child to engage in, or submit to, a sexual activity or, in the alternative, to making a communication for a prurient purpose and with the intention of making a child amenable to sexual activity.
I find these remarks puzzling. The wording of the section is plainly wide enough to permit the detection of offenders using the type of subterfuge employed by the police in the present case. Furthermore, the policy of the CPA is to protect children from sexual exploitation. That policy is given effect by s63B(3) which targets people who engage in “grooming” of children for future sexual abuse. Given the policy of the CPA and the purpose of the section there is, in my view, no sensible reason why s63B(3) cannot be used to allow the police to assume the identity of a fictitious child in order to detect offenders engaged in online grooming. Indeed this method of entrapment, the legitimacy of which was conceded by the defence in the present case, is frequently used in the investigation of offences under similar federal and interstate legislation.[32] Of course, the fact that no real child was the recipient of the communication is a matter relevant to penalty.[33]
[32] See for example R (Cth) v Poynder [2007] NSWCCA 157
[33] R v Kennings [2004] QCA 162
Conclusion
For the reasons expressed above I am of the view that, in relation to a prosecution under s63B(3), the prosecution is not required to prove that the defendant knew that the recipient of the communication was a child as defined in the legislation or did not have an honest and reasonable belief to the contrary.