R v Rohan (a pseudonym)

Case [2024] HCA 3

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, GLEESON AND JAGOT JJ

THE KING  APPELLANT

AND

ROHAN (A PSEUDONYM)  RESPONDENT

The King v Rohan (a pseudonym)

[2024] HCA 3

Date of Hearing: 12 October 2023

Date of Judgment: 14 February 2024

M33/2023

ORDER

1.Appeal allowed.

2.Set aside paragraphs 2 to 10 of the orders of the Court of Appeal of the Supreme Court of Victoria of 4 October 2022 and, in their place, order that the appeal against conviction is dismissed.

3.Remit the respondent's appeal against sentence to the Court of Appeal for rehearing.

On appeal from the Supreme Court of Victoria

Representation

E H Ruddle KC with J B Warren for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

T Kassimatis KC with G F Connelly for the respondent (instructed by Greg Thomas Barrister & Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v Rohan (a pseudonym)

Criminal law – Appeal against conviction – Criminal liability – Statutory complicity – Where s 324(1) of Crimes Act 1958 (Vic) provided, "if an offence ... is committed, a person who is involved in the commission of the offence is taken to have committed the offence" – Where s 323(1)(c) of Crimes Act provided person is "involved in the commission of an offence" if person "enters into an agreement, arrangement or understanding with another person to commit the offence" – Where respondent convicted of offences of supplying drug of dependence to a child and sexual penetration of a child under 12 on basis of ss 323(1)(c) and 324(1) – Where prosecution relevantly alleged respondent and two co‑accused entered into agreement, arrangement or understanding to supply cannabis to two complainants (aged 11 and 12), and then sexually penetrate complainant (aged 11) – Where element of supply offence that child in fact be under 18 years of age – Where element of sexual penetration offence that child in fact be under 12 years of age – Where knowledge of age not an element of either offence – Whether prosecution required to prove that accused knew, at time of entering agreement, ages of complainants or that complainants were under specified age – Whether substantial miscarriage of justice resulted from failure to direct jury to be satisfied beyond reasonable doubt that parties to agreement knew ages of complainants – Whether fault element in Giorgianni v The Queen (1985) 156 CLR 473 applicable to s 323(1)(c) – Whether prosecution required to prove that accused knew or believed, at time of entering into agreement, essential facts that made conduct an offence, where knowledge or belief not an element of the offence itself.

Words and phrases – "accessorial liability", "agreement", "agreement, arrangement or understanding", "agreement to commit an offence", "complicity", "derivative liability", "essential facts", "group activity", "involved in the commission of an offence", "joint criminal enterprise", "primary liability", "statutory complicity".

Crimes Act 1958 (Vic), s 49A, Subdiv…

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R v Rohan (a pseudonym) [2024] HCA 3
Case
[2024] HCA 3
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning the interpretation of section 323(1)(c) of the *Crimes Act 1958* (Vic). The respondent, Mr Rohan, was convicted in the County Court of Victoria, along with two co-accused, of various offences including supplying a drug of dependence to a child and sexual penetration of a child under 12. The prosecution's case was that all three were involved in the commission of these offences by entering into an agreement, arrangement, or understanding to supply drugs and alcohol to two girls and engage in sexual activity with them. The central dispute revolved around whether the prosecution was required to prove that Mr Rohan knew or believed, at the time of entering into the agreement, the essential facts that made the conduct an offence, specifically the ages of the victims, even though knowledge of age was not an element of the offences themselves.

The legal issue before the High Court was whether, for a person to be considered "involved in the commission of an offence" under section 323(1)(c) by entering into an agreement to commit an offence, the prosecution must prove that the accused knew the age of the victim, where such knowledge is not an element of the underlying offence. The offences for which Mr Rohan was convicted, namely supplying a drug of dependence to a child and sexual penetration of a child under 12, did not require proof of the offender's knowledge of the victim's age. The relevant legislation only required that the child be factually under the specified age.

The High Court reasoned that section 323(1)(c) does not require proof of the accused's knowledge of the victim's age when that knowledge is not an element of the offence itself. The Court found that the provisions concerning involvement in an offence, including section 323(1)(c), are designed to extend criminal liability to those who participate in criminal conduct through agreement, arrangement, or understanding, irrespective of whether they possess specific knowledge about ancillary facts that define the offence, provided those facts are met. The trial judge's direction to the jury, which did not require proof of Mr Rohan's knowledge of the children's ages, was therefore upheld.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal of Victoria that had allowed Mr Rohan's appeal against conviction. The High Court ordered that Mr Rohan's appeal against conviction be dismissed. His appeal against sentence was remitted to the Court of Appeal for rehearing.

Orders

Orders of the court

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Background

Background to the litigation

GAGELER This appeal concerns what is necessary to prove that a person is "involved in the commission of an offence" under s 323(1)(c) of the Crimes Act 1958 (Vic), being where the person "enters into an agreement, arrangement or understanding with another person to commit the offence". Specifically, the issue is whether the prosecution must prove that an accused knew or believed, at the time of entering into the agreement, the essential facts that made the proposed conduct an offence, where that knowledge or belief is not an element of the offence itself. The answer is no.Background to the appeal The respondent, Mr Rohan (a pseudonym), was jointly charged with two other men, MK and WF, on indictment in relation to events one evening in December 2018 when the co-accused picked up two girls, Daisy (aged 11) and Katie (aged 12) (pseudonyms), supplied them with drugs and alcohol, and then sexually penetrated and sexually assaulted Daisy. Mr Rohan, MK and WF were all charged with the same offences, on the basis that each co-accused had either committed the offence or was a person "involved in the commission of the offence" under s 324(1) of the Crimes Act because they had, within the meaning of s 323(1)(c), "enter[ed] into an agreement, arrangement or understanding ... to commit the offence". The prosecution case was that the three co-accused had reached an agreement, arrangement or understanding to supply alcohol and cannabis to Daisy and Katie, and then engage in sexual activity – including sexual penetration – with both Daisy and Katie ("the agreement"). On that basis, the prosecution case was that all three co-accused were guilty of all charges, irrespective of who carried out the actual acts of supply, sexual penetration or sexual assault. A jury in the County Court of Victoria found each co‑accused guilty of two charges of supplying a drug of dependence to a child[1] ("the supply offences") (in relation to Daisy and Katie); seven charges of sexual penetration of a child under 12[2] ("the sexual penetration offences") (in relation to Daisy); and two charges of sexual assault of a child under 16[3] ("the sexual assault offences") (in relation to Daisy). Each co‑accused was acquitted of charges of sexual penetration of a child under 16[4] (in relation to Katie).[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71B(1).[2]Crimes Act, s 49A(1).[3]Crimes Act, s 49D(1).[4]Crimes Act, s 49B(1). None of the offences for which Mr Rohan and his co-accused were convicted included, as an element, proof of knowledge of the victim's age or that the victim was under a certain age.[5] The trial judge did not direct the jury that, for the "agreement ... to commit the offence" to be established beyond reasonable doubt, the prosecution was required to prove that the agreement was to have sex with, or supply drugs to, underage girls or that the co-accused knew the ages of Daisy and Katie (or that they were under a certain age). That is, the trial judge did not direct the jury that the prosecution was required to prove: in respect of the supply offences, that any of the accused knew that Daisy and Katie were under 18; in respect of the sexual assault offences, that any of the accused knew that Daisy was under 16; or in respect of the sexual penetration offences, that any of the accused knew that Daisy was under 12. [5]A defence of reasonable belief as to age applied to the supply offences: Drugs, Poisons and Controlled Substances Act, s 71B(4).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON AND EDELMAN JJ GLEESON AND JAGOT JJ
Nothing in s 323(1)(b) or (d) points to any contrary construction of s 323(1)(c). Paragraphs (b) and (d) extend paragraphs (a) and (c). In relation to those paragraphs, the Explanatory Memorandum stated that "[a]n accused may be liable where the offence committed differs from the offence that the accused originally encouraged etc., if the accused foresaw the probability that the offence would be committed in the course of carrying out the original offence".[42] The manner in which each paragraph departs from the common law is different. Section 323(1)(b) (in conjunction with s 324C(1)) extends liability in relation to aiding, abetting, counselling and procuring from that which existed at common law. Section 323(1)(d) (in conjunction with s 324C(2)) narrows what was the position at common law for extended joint criminal enterprise[43] – it extends liability for group activity only where the accused foresees the probability (not the possibility) that another offence will be committed.[42]Victoria, Legislative Council, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, Explanatory Memorandum at 13.[43]See Miller (2016) 259 CLR 380 at 401-402 [43].Conclusion and orders For those reasons, the appeal should be allowed. Paragraphs 2 to 10 of the orders of the Court of Appeal of the Supreme Court of Victoria of 4 October 2022 are set aside and, in their place, order that the appeal against conviction is dismissed. Mr Rohan's appeal against sentence is remitted to the Court of Appeal for rehearing. The question in this appeal is whether, under provisions (ss 323 to 324C) in Div 1 of Pt II of the Crimes Act 1958 (Vic) ("the Crimes Act"), the Crown had to prove beyond reasonable doubt that an accused, as a person alleged to have entered into an agreement, arrangement or understanding with another person to commit offences, knew the age of the child against whom the offences were perpetrated in order to be taken to have committed the offences, in circumstances where knowledge of the age of the child was not itself an element of the offences. The respondent was convicted of multiple charges, six of which depended on the application of ss 323 to 324C of the Crimes Act. Those provisions concern a person's guilt of an offence by reason of their "involvement in" the offence. By s 323(1)(c) of the Crimes Act, a person is involved in the commission of an offence if the person "enters into an agreement, arrangement or understanding with another person to commit the offence". Two of the six charges (charges 1 and 2) alleged that the respondent, with two others, supplied a drug of dependence to a child (meaning a person under 18 years of age) contrary to s 71B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The other four of the six charges (charges 3, 7, 8, and 9) alleged that the respondent, with two others, sexually penetrated a child under the age of 12 years contrary to s 49A(1) of the Crimes Act. Neither s 71B nor s 49A(1) required knowledge of the age of the child as an element of the offence. The provisions required only that the child in fact be under 18 years of age for the drug supply offences, and under 12 years of age for the sexual penetration offences. The trial judge did not direct the jury that, to establish that the respondent was involved in the commission of the offences by operation of s 323(1)(c), the Crown had to prove beyond reasonable doubt that the respondent knew that the child victims were, relevantly, under 18 years of age for the drug supply offences, and under 12 years of age for the sexual penetration offences.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON AND EDELMAN JJ, GLEESON AND JAGOT JJ

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