Tasmania v Bell

[2019] TASSC 34

[2019] TASSC 34

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Bell [2019] TASSC 34

PARTIES:  STATE OF TASMANIA
  v
  BELL, Chauncy Aaron

FILE NO:  592/2018
DELIVERED ON:  5 August 2019
DELIVERED AT:  Hobart
HEARING DATES:  24–28 June, 2–4 July 2019
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal law – General matters – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact – Availability of defence of honest and reasonable mistake – Particular cases – Supplying controlled drug to a child – Supply to adult a less serious offence – Defence of mistake as to age not available.

Criminal Code (Tas), s 14.
Misuse of Drugs Act2001 (Tas), s 14.
CTM v The Queen [2008] HCA 25, 236 CLR 440; Hindrum v Lane [2014] TASFC 5; R v Loiterton [2019] NSWDC 166, distinguished.
Aust Dig Criminal Law [2065]

REPRESENTATION:

Counsel:
             Crown:  Y Prenc
             Accused:  K Baumeler
Solicitors:
             Crown:  Director of Public Prosecutions

Judgment Number:  [2019] TASSC 34
Number of paragraphs:  19

Serial No 34/2019
File No 592/2018

STATE OF TASMANIA v CHAUNCY AARON BELL

REASONS FOR JUDGMENT  BLOW CJ

5 August 2019

1. The accused, Chauncy Bell, was indicted and tried on charges that included a charge of supplying a controlled drug to a child, contrary to s 14 of the Misuse of Drugs Act 2001. The jury found him guilty of that charge. During the trial, I directed the jury that, as to that charge, the Crown bore the burden of proving beyond reasonable doubt only that he supplied a controlled drug to a person, and that that person was under the age of 18 years. I directed them that it made no difference if he held an honest and reasonable mistaken belief that the person was aged 18 years or over. I did so despite counsel for both the accused and the Crown having submitted that the Crown bore the burden of negativing the existence of any such belief. These are my reasons for giving that direction.

2. Section 14 of the Misuse of Drugs Act reads as follows:

   "14    Supplying controlled drug to child

   A person must not supply a controlled drug to a child.

   Penalty:  Imprisonment for a term not exceeding 21 years."

3. The indictment alleged that the accused had contravened that section by supplying methylamphetamine to a child aged 15 years.  Methylamphetamine is a controlled drug by virtue of the Misuse of Drugs Act, Sch 1, Pt 2, item 172. Section 3(1) of that Act defines "child" to mean "a person who has not attained the age of 18 years".  The same subsection defines "supply", in relation to a substance, to include "administer the substance, whether orally, subcutaneously or by other means".  There was uncontroversial evidence that the accused had injected methylamphetamine intravenously into the arm of a 15 year old girl.

4. Section 14 of the Criminal Code provides as follows:

   "14    Mistake of fact

   Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

   The word "excuse" in that section is very important in this case.  The question that arose was whether a belief that the girl was an adult, if held, would "excuse" the act of supplying a controlled drug to her.

5. Counsel for the accused relied on the decision of the High Court in CTM v The Queen [2008] HCA 25, 236 CLR 440. The appellant in that case had been charged under s 66C(3) of the Crimes Act 1900 (NSW) with having sexual intercourse with a person aged between 14 and 16 years. It was not a crime in New South Wales for a person of the appellant's age to have sexual intercourse with a person who had attained the age of 16 years. The appellant contended that he had an honest and reasonable but mistaken belief that the complainant was 16 years old. The High Court held, by majority, that the common law principle that an honest and reasonable but mistaken belief was a ground of exculpation applied to s 66C(3).

6. New South Wales does not have a statutory equivalent of s 14 of Tasmania's Criminal Code.  However it is well established that s 14 and its counterparts in other code States are statutory expressions of the common law: Thomas v The King (1937) 59 CLR 279 per Dixon J (as he then was) at 305-306.

7. It is perfectly clear that, as a result of s 14, an honest and reasonable mistaken belief that a person has attained the age of 17 years is exculpatory in relation to a charge of having sexual intercourse with a young person under the age of 17 years, contrary to s 124(1) of the Criminal Code.  However there is an important difference between that crime and the crime of supplying a controlled drug to a child.

8. When a person has sexual intercourse with a young person under the age of 17 years, and holds an honest and reasonable but mistaken belief that that young person has attained that age, that person engages in conduct which, if the belief were true, would be wholly innocent. That is not the case when someone supplies a controlled drug to a child whilst holding an honest and reasonable but mistaken belief that the child is someone who has attained the age of 18 years. That is because the supply of the drug to someone who has attained that age is not an entirely innocent act, but an offence contrary to s 26 of the Misuse of Drugs Act. That section reads as follows:

   "26  Selling or supplying controlled drug

   A person must not sell or supply a controlled drug to another person.

   Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years."

9. I have been unable to find a case in any code State or common law jurisdiction that supports the argument put to me by Ms Baumeler on behalf of the accused.  She referred me to the judgment of Haesler DCJ in R v Loiterton [2019] NSWDC 166, but that case is distinguishable. In New South Wales, the Crimes Act has three different provisions that prohibit sex with minors: s 66A(1) in relation to children under 10 years of age, s 66C(1) in relation to children aged 10 to 13 inclusive, and s 66C(3) in relation to children aged 14 and 15. Mr Loiterton was charged with having sex with a girl aged 13, and contended that he had an honest and reasonable but mistaken belief that she had turned 16. It was held that the Crown bore the burden of proving beyond reasonable doubt that he did not hold an honest and reasonable belief to that effect. If he had held such a belief, it would have been a belief in a state of affairs that would have made his conduct wholly innocent, not a belief in a state of affairs that would have left him guilty of a less serious crime.

10. Ms Baumeler relied on the Full Court's decision in Hindrum v Lane [2014] TASFC 5. The appellant in that case was convicted on charges of taking and possessing an undersize male rock lobster contrary to the Fisheries (Rock Lobster) Rules 2011, r 17. He contended that he held an honest and reasonable mistaken belief that the lobster in question was not undersize. The Full Court held that it was not open to the magistrate to make a finding that any such mistaken belief was reasonable. It was accepted that the offences in question were offences of strict liability, in that the prosecution was not required to prove beyond reasonable doubt an intention to take or possess a lobster smaller than the minimum prescribed size, and that the defence of honest and reasonable mistake was available. Once again, that case is distinguishable because the mistaken belief, if it existed, would have been a belief in a state of affairs that made the appellant's conduct entirely innocent.

11. Section 14 of the Criminal Code  applies only when there is a belief in the existence of a state of facts, the existence of which would "excuse" the accused person's act or omission.  If the asserted belief had been true in this case, and the complainant had been an adult, the accused's act would not have been excused.  Supplying the drug would still have amounted to an offence carrying a maximum penalty of 4 years' imprisonment.

12. As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47], "the task of statutory construction must begin with a consideration of the text itself", and "The language which was actually being employed in the text of legislation is the surest guide to legislative intention." It follows that, unless there is a good reason to adopt a different interpretation, s 14 should not be interpreted as applying to a mistaken belief in a state of facts, the existence of which would not "excuse" the accused person's conduct, even if the believed facts would result in the accused person being guilty of a less serious offence than the one charged.

13. A number of the leading common law cases about mistaken beliefs support the view that a mistaken belief will only be exculpatory if the believed facts would render the accused person "innocent".  R v Tolson (1889) 23 QBD 168 concerned a prosecution for bigamy. The jury found that the accused woman had remarried, believing on reasonable grounds that her husband was dead. The majority of the Court of Queen's Bench held that she was not guilty because of that belief. Wills J, with whom Charles J agreed, said at 171-172 that "ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent."  Cave J, with whom Lord Coleridge CJ, Day and A L Smith JJ agreed, said at 181, "At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always held to be a good defence."  Similarly, in Bank of New South Wales v Piper [1897] AC 383 at 389-390, the Privy Council referred to "an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent." (My emphasis in each quotation.)

14. In CTM v The Queen (above), Gleeson CJ, Gummow, Crennan and Kiefel JJ said, at [8]:

    "Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence". (My emphasis.)

15. Hayne J said, at [146]:

    "… a person is not to be exposed to liability to imprisonment … if that person reasonably and honestly believes in a state of facts that would make his or her conduct innocent, unless the legislature makes it abundantly plain that such a mistake of fact is irrelevant to the determination of criminal responsibility". (My emphasis.)

16. Heydon J said, at [199]:

    "Legislation will be construed so as not to render criminally liable an accused person provided that, first, the accused person satisfies an evidential burden of establishing an honest belief on reasonable grounds in the existence of the state of factual affairs which, had it existed, would have made the acts alleged by the prosecution non-criminal, and, secondly, the prosecution fails to discharge a legal burden or establishing beyond reasonable doubt that the accused did not have that honest belief on reasonable grounds." (Footnote omitted.)

17. Section 36A of the Misuse of Drugs Act contains provisions as to alternative convictions, whereby a jury who finds a person not guilty of an indictable drug offence may find that person guilty of one or more summary offences. Under s 36A(1), a person who is found not guilty of the indictable offence of manufacturing a controlled drug for sale may be found guilty of the summary offence of manufacturing a controlled drug. Under s 36A(2), a person who is found not guilty of the indictable offence of cultivating a controlled plant for sale may be found guilty of the summary offence of cultivating a controlled plant and/or the summary offence of possessing or using a controlled plant or its products. Under s 36A(3), a person who is found not guilty of the indictable offence of trafficking in a controlled substance may be found guilty of a summary offence relating to the possession, use or administration of a controlled drug, the possession or use of a controlled plant or a controlled plant product, or the unlawful importation of a controlled substance. However there is no provision whereby a person found not guilty of supplying a controlled drug to a child may be found guilty of the summary offence of supplying a controlled drug.

18. Ms Baumeler argued that the absence of any such provision gives support to her argument that the crime of supplying a controlled drug to a child is not committed if the person supplying the drug holds an honest and reasonable but mistaken belief that the recipient is an adult.  In my view, the opposite is true.  The absence of such a provision is consistent with such a mistaken belief not being exculpatory.  However I think it would be wrong to treat the absence of a provision for an alternative verdict as indicating anything as to the availability or unavailability of a defence of mistake in relation to any crime or offence.  The provisions as to alternative verdicts in the Misuse of Drugs Act and in ss 332-342A of the Criminal Code are patchy.  They cover many, but by no means all, of the situations in which evidence may fall short of proving an accused person guilty of a charged crime, whilst still establishing guilt of some other crime or offence.  It follows that the absence of an alternative verdict provision in relation to s 12 should not be regarded as significant.

19. For these reasons, I concluded that an honest and reasonable mistaken belief that the complainant in this case was an adult, if held by the accused, would not have been exculpatory in relation to the charge under s 14, and I directed the jury accordingly.