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Sparre v The King

Sparre v The King

Case [1942] HCA 19 28 August 1942

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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66 CLR 149

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY. Criminal Law-Unlawful carnal knowledge-Defence-Reasonable cause to believe

girl over the age of sixteen years-Proof " to the court or ry"-Jury-Agree- ment as to carnal knowledge-Disagreement re belief as to girl's age-Accused found guilty by direction of judge-Crimes Act 1900 (N.S.W.) (No. 40 of 1900), sec. 71-Crimes (Girls' Protection) Act 1910 (N.S.W.) (No. 2 of 1910), sec. 2- Aug. 19, 28. Seat of Government Acceptance Act 1909-1938 (No. 23 of 1909-No. 12 of 1938), sec. 6-Seat of Government (Administration) Act 1910-1940 (No. 25 of 1910 No. 14 of 1940), secs. 3, 4. Australian Capital Territory-Supreme Court-Appeal to High Court in criminal

matter-Power of High Court to order new trial-Seat of Government Supreme Court Act 1933-1935 (No. 34 of 1933-No. 27 of 1935), sec. 52-Judiciary Act 1903-1940 (No. 6 of 1903-No. 50 of 1940), sec. 36.

Sec. 71 of the Crimes Act 1900 (N.S.W.) as amended by sec. 2 of the Crimes (Girls' Protection) Act 1910 (both of which Acts are in force in the Australian Capital Territory) provides that whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years, with a proviso that it is a suffi- cient defence to any charge under this section where the girl in question was over the age of fourteen years if it shall be made to appear to the court or jury before whom the charge is brought that the person so charged had reason- able cause to believe that she was of or above the age of sixteen years.

Held that whether the person charged had reasonable cause to believe that the girl was of or above the age of sixteen years is a question for the jury. If the jury (while agreeing that the person charged carnally knew the girl). are unable to agree on this question no verdict can be given; a direction that as the person charged has not made out his defence he must be found guilty

66 CLR 150

Upon an appeal under sec. 52 of the Seat of Government Supreme Court Act 1933-1935 by a person convicted on indictment before the Supreme Court of the Australian Capital Territory the High Court has power to order a new trial.

APPEAL from the Supreme Court of the Australian Capital Territory.

The laws of New South Wales which are in force in the Australian Capital Territory by virtue of sec. 6 of the Seat of Government Act 1909 and sec. 4 of the Seat of Government Administration Act 1909- 1933 include sec. 71 of the Crimes Act 1900. By that section, as amended by sec. 2 of the Crimes (Girls' Protection) Act 1910, it is an offence punishable by penal servitude for ten years unlawfully and carnally to know any girl of or above the age of ten years and…

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 Sparre v The King

Details

AGLC: Sparre v The King [1942] HCA 19
Case: [1942] HCA 19
Decision Date: 28 August 1942

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of the Australian Capital Territory concerning a conviction for unlawful carnal knowledge. The appellant, Patrick Holger Sparre, was charged with unlawfully and carnally knowing a girl under the age of sixteen years, specifically a girl of fourteen years. A proviso to the relevant legislation stipulated that it would be a sufficient defence if the accused had reasonable cause to believe the girl was sixteen years or older.

The legal issues before the High Court were whether the trial judge erred in directing the jury to find the appellant guilty when the jury could not agree on the specific defence regarding reasonable belief of the girl's age, and whether the High Court had the power to order a new trial in such circumstances. The core of the dispute centred on whether the question of reasonable belief as to the girl's age was a matter for the jury to determine, and what the consequences were if the jury could not reach a unanimous decision on that specific issue.

The High Court held that the question of whether the accused had reasonable cause to believe the girl was of or above the age of sixteen years was a question of fact for the jury. If the jury agreed that carnal knowledge had occurred but could not agree on the defence of reasonable belief, no verdict could be lawfully entered. The trial judge's direction that the appellant must be found guilty because he had not established his defence, despite the jury's disagreement, was deemed an error. The Court found that a failure of the jury to agree on the defence did not equate to a finding that the defence had not been established. The High Court also confirmed its power to order a new trial under the Judiciary Act 1903-1940.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial of the appellant before the Supreme Court of the Australian Capital Territory. The appellant was remanded to custody with liberty to apply for bail pending the retrial.

Orders