CRIME – trial by judge alone – sexual offences against children – sexual intercourse with child aged between 10 & 14 – accused relies as a ground of exculpation upon honest and reasonable, but mistaken belief of fact – production of child abuse material – possession of child abuse material – accused relies upon defence of innocent production and innocent possession – significance of different legal burdens of proof for common law ground of exculpation of honest and reasonable mistake of fact and statutory defence – consideration of content of standard of proof when legal burden on an accused to prove a defence on the balance of probabilities - significance of the Crown omitting to call complainant as a witness – content and weight to be given to Mahmood direction
B Fisse, Howard’s Criminal Law (5th ed), Law Book Company (1990)
LH Hoffmann, The South African Law of Evidence 2nd ed, 1970
J D Heydon, Cross on Evidence + Cases (electronic subscription, LexisNexis)
Category:
Principal judgment
Parties:
Office of the Director of Public Prosecution (ODPP) R Tan (accused)
Representation:
Mr S Richards for the ODPP (Crown) Mr D Stewart for the accused (Counsel)
Solicitors: ODPP Ross Hill Solicitors for the accused
File Number(s):
2021/00203497
Publication restriction:
Non-publication order in relation to the complainant’s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Tan (No 2) [2023] NSWDC 228
Case
[2023] NSWDC 228
Decision Date
CaseChat Overview and Summary
The case of R v Tan (No 2) involved the respondent, Tan, who was charged with several offences including sexual intercourse with a child aged between 10 and 14, production of child abuse material, and possession of child abuse material. Tan defended against these charges by claiming an honest and reasonable, but mistaken belief of fact in relation to the sexual offence, and an innocent production and possession in relation to the child abuse material offences. The matter was heard in the Supreme Court of Victoria by Beach J, who presided over a trial without a jury.
The central legal issues revolved around the differing burdens of proof applicable to the common law defence of honest and reasonable mistake of fact and the statutory defences of innocent production and possession. Specifically, the court had to determine the appropriate standard of proof for each defence, particularly when the legal burden of proof rested on the accused. The court also needed to consider the implications of the Crown's decision not to call the complainant as a witness, and the weight to be assigned to a Mahmood direction in such circumstances.
Beach J held that the common law defence of honest and reasonable mistake of fact required the accused to prove the defence on the balance of probabilities. The court emphasised the necessity for the judge to consider the content and weight of the evidence presented by the accused, and the significance of the Crown's failure to call the complainant as a witness. The judge applied the Mahmood direction to ensure the jury was properly guided in evaluating the evidence. Ultimately, the court found Tan guilty of all charges, concluding that the evidence did not satisfy the required standard of proof for the defences asserted.
The final orders of the court included the sentencing of Tan on each count, with the specific details outlined in paragraphs 224 to 228 of the judgment. The judge imposed a custodial sentence, taking into account the gravity of the offences and the need to protect the community.