R v Hutchinson
[2003] WASCA 323
•18 DECEMBER 2003
R -v- HUTCHINSON [2003] WASCA 323
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 323 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:29/2003 | 12 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J MCKECHNIE J | 18/12/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed New trial ordered | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN SUSANNE DOROTHY HUTCHINSON |
Catchwords: | Appeal and new trial Verdict of acquittal by direction Prosecution right of appeal Whether error of law Whether new trial ordered Criminal law and procedure Elements of offence Whether knowledge of age an element of offence under Prostitution Act 2000 Burden and standard of proof Whether common law applies Whether mistaken belief in fact Effect of statutory presumption |
Legislation: | Criminal Code (WA) Prostitution Act 2000 (WA) |
Case References: | R v Mullen (1938) 59 CLR 124 R v Turner (2001) 25 WAR 258. , R v Udechuku [1982] WAR 21 Van den Hoek v The Queen (1986) 161 CLR 158 Widgee Shire Council v Bonney (1907) 4 CLR 977 Woolmington v The DPP [1935] AC 462 Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129 He Kaw Teh v The Queen (1985) 157 CLR 523 Munckton v Webb [1986] WAR 183 Parker v The Queen (1997) 186 CLR 494 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- HUTCHINSON [2003] WASCA 323 CORAM : MALCOLM CJ
- STEYTLER J
MCKECHNIE J
- Appellant
AND
SUSANNE DOROTHY HUTCHINSON
Respondent
Catchwords:
Appeal and new trial - Verdict of acquittal by direction - Prosecution right of appeal - Whether error of law - Whether new trial ordered - Criminal law and procedure - Elements of offence - Whether knowledge of age an element of offence under Prostitution Act 2000 - Burden and standard of proof - Whether common law applies - Whether mistaken belief in fact - Effect of statutory presumption
Legislation:
Criminal Code (WA)
Prostitution Act 2000 (WA)
(Page 2)
Result:
Appeal allowed
New trial ordered
Category: A
Representation:
Counsel:
Appellant : Mr K M Tavener & Mr L M Fox
Respondent : Mr T F Percy QC & Mr N J Mullany
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Dwyer Durack
Case(s) referred to in judgment(s):
R v Mullen (1938) 59 CLR 124
R v Turner (2001) 25 WAR 258
R v Udechuku [1982] WAR 21
Van den Hoek v The Queen (1986) 161 CLR 158
Widgee Shire Council v Bonney (1907) 4 CLR 977
Woolmington v The DPP [1935] AC 462
Case(s) also cited:
Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129
He Kaw Teh v The Queen (1985) 157 CLR 523
Munckton v Webb [1986] WAR 183
Parker v The Queen (1997) 186 CLR 494
(Page 3)
1 MALCOLM CJ: In my opinion, this appeal should be allowed, the judgment of acquittal set aside and a new trial ordered. I have reached this conclusion for the reasons to be published by McKechnie J with which I agree.
2 STEYTLER J: I have had the advantage of reading the judgment of McKechnie J. I agree with him that the appeal must be upheld.
3 The appeal is brought by the Crown, pursuant to s 688(2)(b) of the Criminal Code, against a directed acquittal. The respondent was tried, before a jury, on a charge that, on about 21 April 2001, at Perth, she permitted a child to act as a prostitute contrary to s 16(1) of the Prostitution Act 2000 ("the Act"). That section provides only that "A person is not to cause or permit a child to act, or continue to act, as a prostitute".
4 There was no doubt that the respondent had permitted the child in question, who need be described only as "C", to act as a prostitute on the date charged. The respondent was, on that date, the manager of a so-called "escort agency". On her own evidence, she was approached by C, who was seeking work as a prostitute, and permitted her to work on behalf of the agency. C was given five or six "jobs" and performed each of them. She was then only 13 years old. For the purposes of the Act a "child" is a person who is less than 18 years old: s 3.
5 The respondent's defence at trial was that she had not known that C was a child (she contended that knowledge of this fact was an element of the offence charged). She said that she had believed, on reasonable grounds, that C was an adult at the time and that she took all reasonable steps to verify that fact. Indeed, she said that her first impression was that C was 25 years old, although C told her that she was 19 years old. She said that she asked for proof of C's age and that C produced an identity document in the form of an "18-plus" card. C, on the other hand, had given evidence to the effect that she had not produced any identity document and that she had told the respondent that she had forgotten to bring her "ID" with her. The prosecution had also led evidence to the effect that, when C had first telephoned the respondent, C's mother had overheard the telephone call and had yelled out, from a distance of only one to one and a half feet away, the words, "She's 13." The respondent denied having heard these words.
6 Notwithstanding the evidence as regards what had been said by C's mother, the Crown at no stage set out to prove that the respondent knew
(Page 4)
- that C was a child. The prosecutor, in the course of his submissions to the trial Judge, said that the Crown did not need to do so. He referred, in that respect, to s 49 of the Act, which reads as follows:
"49. Accused presumed to know if person is a child
If, in proceedings for an offence under this Act, it is relevant whether or not a person was a child, it is to be conclusively presumed that the accused knew that the person was a child unless it is proved that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed, that the age of the person concerned was at least 18 years."
"24. Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
8 As I have foreshadowed, counsel for the respondent contended at the trial (as he did before us) that actual knowledge that C was a child was an element of the offence charged and that, the Crown having acknowledged that it did not allege actual knowledge by the respondent of this, there was no case for the respondent to answer and the trial Judge should direct the jury to acquit the respondent. The trial Judge upheld that contention and directed the jury accordingly.
(Page 5)
9 The Crown raises three grounds of appeal, as follows:
"1. The learned trial Judge erred in law in holding that knowledge of the Respondent at the relevant time that the person permitted to act as a prostitute was a child was an element of the offence created by section 16(1) of the Prostitution Act 2000 (the Act).
2. Alternatively, if knowledge of the Respondent at the relevant time that the person permitted to act as a prostitute was a child was an element of or relevant in proceedings for an offence under section 16(1) of the Act, the learned trial Judge erred in law in not holding, pursuant to section 49 of the Act, that the Appellant could rely upon the presumption that the Respondent knew the person was a child.
3. The learned trial Judge erred in law in directing the jury to find the Appellant not guilty because the Appellant had no case to answer, in circumstances in which there was evidence, or alternatively, evidence and a statutory presumption, capable of establishing each element of the offence charged."
10 In my opinion, the appellant is right in its contention that the trial Judge erred in his construction of the provisions to which he referred. There is nothing in s 16 of the Act which requires knowledge, on the part of the offender, of the fact that the person permitted or caused to act, or to continue to act, as a prostitute is a child. It is enough to make out the offence that that person was in fact a child at the time. That said, were it not for the existence of s 49 of the Act, s 24 of the Criminal Code would have afforded a defence to a person who honestly and reasonably, but mistakenly, believed that the person was in fact an adult and, as McKechnie J has pointed out, the prosecution would have been required to negative that defence beyond reasonable doubt. However, s 49 has cut down the operation of s 24 of the Code. That necessarily follows from the terms of the latter section, which places upon the accused the onus of proving that, having taken all reasonable steps to find out the age of the person concerned, she believed on reasonable grounds, at the time at which the offence was alleged to have been committed, that the age of the person concerned was at least 18 years.
(Page 6)
11 It consequently follows that the jury should have been required to answer the question whether or not it had been proved that the respondent had taken all reasonable steps to find out C's age and believed, on reasonable grounds, that C was at least 18 years old at the time the offence was alleged to have been committed. The grounds of appeal have, to this extent, been made out.
12 I should add, before leaving this issue, that counsel for the respondent contended that the Crown should not be permitted to rely upon the provisions of s 49 of the Act. He contended that, in circumstances in which the Crown had always acknowledged that it did not allege knowledge on the part of the respondent, it should not be permitted to take up an inconsistent position in contending that there was a "deemed" knowledge by virtue of s 49. In my opinion, that contention lacks substance. A reading of the transcript discloses that the Crown only ever indicated that it did not propose to prove actual knowledge on the part of the respondent. At no time did it disclaim reliance upon s 49. Indeed, as I have said, prosecuting counsel expressly relied upon the provisions of that section in the course of his submissions before the trial Judge.
13 There remains the question whether a new trial should be ordered. There is no doubt that the Court has the power to do so. Section 690(3) of the Code provides, in that respect, as follows:
"(3) On any appeal against an acquittal by direction … the Court, if it allows the appeal, may reverse any judgment, decision, or verdict, the correctness of which was in question in the appeal, and may order a new trial …".
14 However, as was mentioned by Wickham J in his dissenting judgment in R v Udechuku [1982] WAR 21 at 23, s 688(2)(b) of the Code is, in common law jurisdictions, a unique provision and, as Burchett AUJ said in R v Turner (2001) 25 WAR 258 at 267, a successful appeal under that section does not by any means have the automatic consequence that there will be a new trial pursuant to the power given under s 690(3). His Honour said (with the agreement of Malcolm CJ and Wheeler J) that:
"A discretion is involved, and in its exercise the court should regard the principle of double jeopardy, not as abrogated, but as modified, by the Crown's right of appeal …".
(Page 7)
15 It seems to me, as it does to McKechnie J, that this is a case in which the discretion should be exercised in favour of a new trial. The error made by the trial Judge was one urged upon him by counsel for the respondent (and I make no criticism, at all, of counsel in that respect) in circumstances in which there was a clear conflict in the evidence as regards the question whether or not the respondent had taken all reasonable steps to find out C's age. On C's evidence (and there was no suggestion that it was incapable of acceptance by the jury) no documentary evidence at all had been provided to the respondent in that respect. If the jury was to accept that evidence (even leaving to one side other aspects of the Crown case), it seems to me to be very probable that it would conclude that the failure to insist upon such evidence, prior to allowing C to embark upon acts of prostitution, amounted to a failure to take all reasonable steps to find out C's age. In those circumstances, even taking into account other matters which have been advanced on behalf of the respondent in this respect, it seems to me that this is a proper case for the ordering of a new trial.
MCKECHNIE J:
Introduction
16 On 20 and 21 February 2003 the respondent stood trial in the District Court on an indictment alleging that on or about 21 April 2001, at Perth, she permitted a child to act as a prostitute, an allegation of an offence under the Prostitution Act 2000, s 16(1). At the conclusion of all of the evidence in the trial, including that of the respondent and her witnesses, the trial Judge upheld a submission of no case to answer and directed the jury to return a verdict of not guilty, which it duly did. In consequence, the Judge entered a verdict of acquittal on the indictment. From that verdict of acquittal, the prosecution appeals pursuant to the Criminal Code s 688(2)(b).
The Crown's case at trial
17 The Crown case at trial centred on the evidence of "C" who was born on 27 April 1987. On 21 April 2001 she was very nearly 14 years of age. It was the Crown's case that "C" went to premises in Rivervale and spoke with the respondent who owned and managed Hearts Escorts. "C" lied about her age to the respondent asserting she was over 18. As a result, "C" was engaged to work, and did work, as a prostitute for one night. The next day "C's" mother intervened.
(Page 8)
18 It was common ground at trial that "C" was a child under the age of 18, that she had acted as a prostitute and that the respondent had permitted her to act as a prostitute.
The reasons of the trial Judge for directing a verdict of acquittal
19 In upholding the submission of no case, the Judge gave short reasons in the absence of the jury. He said:
"The first matter to be determined is what elements are required to be proved by the crown under this section. The crown has submitted that only three elements need be proved: Firstly, that the child acted as a prostitute; secondly – or the person acted as a prostitute. Secondly, that the accused permitted the person to act as a prostitute and thirdly, that the person was a child at the relevant time, namely a person under the age of 18 years. That's as defined by the act.
Defence counsel pressed for the inclusion of a fourth element and that is that the accused knew at the relevant time that the person was not a child within the meaning of the act, that is a person under the age of 18 years. I confirm that I have ruled that such a fourth element is necessary. There are several reasons for this. Section 16 cannot in my view be an absolute offence. Secondly, and following on from this, the existence and wording of section 49 of the act suggests strongly that the draftsman of the section had in mind the necessity to prove knowledge on the part of the accused, but to allow for a defence based on reasonable belief.
If the section was to be absolute, then one would have expected some other wording in section 49. For example: it is a defence under section 16, or under the act, proof of which is upon the accused that having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time of the offence as alleged to have been committed, that the age of the person concerned was at least of 18 years. In other words, without any reference to knowledge and a presumption relating to that.
Assuming, as I have ruled, that the crown is, as an element of the offence, to prove knowledge on the part of the accused, in this case, the crown has conceded that it is not the crown
(Page 9)
- allegation that the accused had such knowledge and that there is no evidence that she so knew and no evidence upon which this knowledge could be inferred. This being so, there is no basis upon which the crown can rely upon section 49, for to do so would be inconsistent."
- The Judge summarised those reasons for the jury in the course of directing them as to their verdict.
20 As the resolution of the appeal in part turns on the provisions of the Prostitution Act and the Criminal Code, I commence with a summary of the relevant sections.
Prostitution Act 2000
21 The Prostitution Act is divided into seven parts.
22 Part 1 contains definitions including the definition of a "child". A "'Child' means a person whose age is less than 18 years". "Prostitution" is defined but nothing tuns on the definition for present purposes.
23 Part 2 is entitled "General provisions about prostitution" and has two divisions. Division 1 relates to persons generally and Div 2 relates to offences committed by a person who acts as a prostitute in certain circumstances, including the circumstance of being a child.
24 Part 3 is entitled "Other provisions about children" and includes: s 16(1) which reads:
"16. Causing, permitting, or seeking to induce child to act as prostitute
(1) A person is not to cause or permit a child to act, or continue to act, as a prostitute.
(2) A person is not to do anything with the intention of inducing a child to act, or continue to act, as a prostitute.
(3) An offence under subsection (1) or (2) is a crime.
Penalty: Imprisonment for 14 years."
26 Part 5 relates to restraining orders.
(Page 10)
27 Part 6 is entitled "Evidence" and includes a number of presumptions and averments. The section relevant, for present purposes, is s 49 which provides:
"Accused presumed to know if person is a child
If, in proceedings for an offence under this Act, it is relevant whether or not a person was a child, it is to be conclusively presumed that the accused knew that the person was a child unless it is proved that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed, that the age of the person concerned was at least 18 years."
28 Part 7 is headed "Miscellaneous".
Relationship between the Prostitution Act 2000 and the Criminal Law
29 There are certain propositions which, although basic, have a relevance in this appeal.
30 It is convenient to commence with consideration of the Criminal Code because "No person shall be liable to be tried or punished in Western Australia as for an indictable offence, except under the express provisions of the Code or some other statute law of Western Australia ... ": Criminal Code Compilation Act 1913, s 4. An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence: Criminal Code, s 2. An offence under the Prostitution Act s 16 is an indictable offence because it is a crime: see Criminal Code, s 3.
31 The constituent elements of an offence are not determined by reference to common law concepts of actus reus or mens rea, but solely by reference to the provisions of the Criminal Code or other statute: Widgee Shire Council v Bonney (1907) 4 CLR 977 per Griffith CJ at 981 Unless knowledge or intention are elements of the offence created by statute, either expressly or by necessary implication, then the prosecution does not have to prove knowledge or intention.
32 The Criminal Code Ch V is entitled "Criminal responsibility" and sets out in detail the circumstances where a person is not criminally responsible for an act or omission. The provisions of the Criminal Code Ch V apply to all persons charged with any offence against the statute law of Western Australia: s 36. Section 24 provides:
(Page 11)
- "24. Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
" … Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal." (My emphasis.)
34 This formulation of the burden of proof was adopted in Australia, specifically in relation to the Criminal Code of Queensland (and therefore Western Australia), three years later in R v Mullen (1938) 59 CLR 124. Where there is evidence sufficient to enliven the question whether a person is not criminally responsible under the provisions of Ch V of the Code, it is generally for the prosecution to negative that evidence beyond reasonable doubt: Van den Hoek v The Queen (1986) 161 CLR 158.
(Page 12)
The ground of appeal
35 From these general observations, I turn to the principal ground of appeal:
"1. The learned trial Judge erred in law in holding that knowledge of the Respondent at the relevant time that the person permitted to act as a prostitute was a child was an element of the offence created by section 16(1) of the Prostitution Act 2000 (the Act)."
36 In summary, the Judge ruled that knowledge was a fourth element of the offence for two reasons:
1. that s 16 cannot be an absolute offence;
2. s 49 suggests strongly a necessity to prove knowledge on the part of the accused, but to allow for a defence based on reasonable belief.
37 In my respectful view, each of these reasons is wrong. To speak of an offence in terms whether or not it is an absolute offence is apt to mislead because it imports notions of mens rea which are not part of Western Australian criminal law. At common law, the classification of an offence as an absolute offence carries with it certain consequences as to the mental element to be proved. The distinction is not part of the Criminal Code. All offences consist of constituent elements and a conviction is sustained upon proof of those elements unless there is an absence of criminal responsibility in terms of Ch V of the Criminal Code or some other specific statutory provision. The constituent elements of an offence under the Prostitution Act s 16(1) are as follows:
The accused:
• caused or permitted;
• a child to act or continue to act;
• as a prostitute.
38 There is no relevant mental element within the offence. Neither intention nor knowledge are included as elements of the offence. By way of contrast, other sections of the Prostitution Act (s 17, s 19(2) and s 20) do provide for a mental element of either knowledge or intention as an element of the offence.
(Page 13)
The relevance of the Criminal Code s 24
39 Although there is no mental element which the prosecution must establish, the mental state or belief of an accused may be relevant. A person is not criminally responsible for causing or permitting a child to act as a prostitute if the person acted under an honest and reasonable, but mistaken, belief that the person was not a child: the Criminal Code, s 24.
40 In the present case there was evidence which enlivened the issue as to whether the respondent [accused] honestly and reasonably, but mistakenly, believed that "C" was over 18 years of age and therefore not a child. In the ordinary course, unless there is a statutory exception, it would be for the jury to consider whether the prosecution had negatived the belief beyond reasonable doubt. That is the effect of Woolmington. However, as is clear in the phrase which was emphasised in Lord Sankey's formulation, this rule yields in the light of a statutory exception. In this case the statutory exception is provided by the Prostitution Act, s 49. It was relevant in the proceedings for an offence under the Prostitution Act, s 16, whether or not "C" was a child. The Prostitution Act, s 49, displaces the ordinary common law evidential rules as to presumption of innocence and burden of proof by making a conclusive presumption of knowledge unless the other provisions of the section are proved. The Prostitution Act, s 49, required the respondent to prove on the balance of probabilities that she had taken all reasonable steps to find out the age of the person concerned and that she believed, on reasonable grounds, at the time the offence is alleged to have been committed, that the age of the person concerned was at least 18 years.
41 The provisions of the Criminal Code s 24 have not been excluded by the express or implied provisions of the Prostitution Act. Instead, the Prostitution Act s49 provides a different burden and standard of proof from that provided by the common law once the question of the lack of criminal responsibility due to mistake is enlivened. Ground 1 of the appeal must be upheld and the judgment of acquittal set aside.
New trial
42 In the event of the judgment of acquittal being set aside, counsel for the respondent submitted that no retrial should be ordered.
43 In R v Turner Burchett AUJ, Malcolm CJ, Wheeler J agreeing, noted at [24] some of the factors which might influence the discretion
(Page 14)
- whether or not to order a new trial. Although counsel relies on the observations by Burchett AUJ, it should be noted that the particular circumstances in which the remarks were made was a case where the verdict was directed on the ground that the evidence was inadequate.
44 In the present case, the ground upon which the appellant has succeeded is an error of law urged upon the Judge by counsel for the respondent. The three elements of the offence - that at the date and place in question the child acted as a prostitute; that the respondent permitted her to do so; and that she was a child - were not in dispute. The only question remaining is whether the conclusive presumption under the Prostitution Act s 49 has been displaced. That is very much a jury question. I acknowledge that a discretion exists whether to order a new trial. However, noting the respondent has already once stood trial, nevertheless the public interest decisively requires an order for a new trial.
45 I would allow the appeal, set aside the judgment of acquittal and order that there be a new trial on the indictment.
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