Criminal Law (Tas.)—Sexual offences—Statute requiring corroboration of complainat's evidence—Repeal and replacement by section abolishing requirement for warning of danger of acting on uncorroborated evidence—Whether new provision applicable to trial after repeal for offence before repeal—Criminal Code (Tas.), s. 136. Statutes—Retrospective operation—Statute requiring corroboration of complainant's evidence in trial for sexual offence—Repeal and replacement by section abolishing requirement for warning of danger of acting on uncorroborated evidence—Whether new provision applicable to trial after repeal for offence before repeal—Whether right to trial under repealed provision an accrued or acquired right—Acts Interpretation Act 1931 (Tas.), s. 16(1)(c), (e)—Criminal Code (Tas.), s. 136.
Decision
MASON C.J., DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. The applicant seeks special leave to appeal against a number of convictions for the defilement of a girl under seventeen years of age and indecent assault of a female. Each offence was alleged to have been committed upon one or other of three complainants between June 1982 and October 1986. During that period, defilement was an offence under s.124(1) of the Criminal Code (Tas.) and indecent assault of a female was an offence under s.127 of the Code. Both provisions were contained in Ch.XIV of the Code, which was headed "Crimes Against Morality". Also during that period, s.136(1), which is in the same chapter, provided: "No person shall be convicted of any crime under the provisions of any of the foregoing sections of this chapter, or of an attempt to commit the same, on the evidence of the person in respect of whom the crime is alleged to have been committed or attempted, unless the evidence of such person is corroborated in some material particular by other evidence implicating the accused."
2. The applicant, who was charged on 12 November 1987, was committed for trial on 16 May 1988. His trial commenced on 13 February 1989. Earlier, by amendment to the Criminal Code which came into force on 26 November 1987, s.136 of the Code was repealed and a new section substituted for it. The new section reads: "(1) At the trial of a person accused of a crime under chapter XIV or XX, no rule of law or practice shall require a judge to give a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of a person against whom the crime is alleged to have been committed. (2) A judge shall not give a warning of the kind referred to in subsection (1) unless satisfied that the warning is justified in the circumstances. The learned trial judge held that the new s.136 applied upon the trial of the applicant and that the old s.136 had no application. The Court of Criminal Appeal upheld this ruling.
3. The applicant submits that the ruling of the trial judge gave retrospective effect to the relevant provisions…
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.
Continue reading Rodway v The Queen
Sign in free to access the full text
Details
AGLC
Rodway v The Queen [1990] HCA 19
Case
[1990] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Rodway, against his conviction for the offence of unlawful sexual intercourse with a girl under the age of 16. The dispute centred on the interpretation and application of the defence of reasonable belief as to the age of the complainant under section 48 of the *Crimes Act 1900* (NSW).
The primary legal issue before the Court was whether the defence of reasonable belief under section 48 required the accused to prove that he had taken positive steps to ascertain the complainant's age, or whether it was sufficient for him to establish that he genuinely believed she was over the age of 16, even if that belief was not based on any specific inquiry. The Court also considered the evidentiary burden of proof in relation to this defence.
The Court held that section 48 of the *Crimes Act 1900* (NSW) does not impose an onus on the accused to prove that he took positive steps to ascertain the complainant's age. Rather, the defence is established if the accused proves, on the balance of probabilities, that he genuinely believed the complainant was over the age of 16. This belief must be reasonable in the circumstances, but reasonableness does not necessitate a specific inquiry. The Court emphasised that the ultimate question is whether the accused’s belief was honestly held and, viewed objectively, was reasonable in the circumstances in which he found himself.
The appeal was dismissed, with the Court finding that the trial judge had correctly directed the jury on the issue of reasonable belief.