Tasmania v Q R S
[2013] TASSC 7
•26 February 2013
[2013] TASSC 7
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Q R S [2013] TASSC 7
PARTIES: STATE OF TASMANIA
v
Q R S
FILE NO: 516/2012
DELIVERED ON: 26 February 2013
DELIVERED AT: Hobart
HEARING DATE: 15 February 2013
JUDGMENT OF: Evans J
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 – Mistake as to the age of the victim of a sexual offence.
Criminal Code 1924 (Tas), ss14, 124.
R v McCabe [1980] Tas R 134; R v Prince [1874 – 80] All ER at 881, referred to.
CTM v R (2008) 236 CLR 440, distinguished.
Aust Dig Criminal Law [2065]
REPRESENTATION:
Counsel:
State: S C Karpeles
Accused: K Edwards
Solicitors:
State: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2013] TASSC 7
Number of paragraphs: 28
Serial No 7/2013
File No 516/2012
STATE OF TASMANIA v Q R S
REASONS FOR JUDGMENT EVANS J
26 February 2013
The accused has pleaded not guilty to one count of sexual intercourse with a young person under the age of 17 years, contrary to the Criminal Code, s124(1).
At the time of the act of sexual intercourse that is the subject of the charge, the accused was aged 17 and the complainant was aged 13. The issue for my determination is whether the accused can rely on an honest and reasonable, but mistaken, belief that the complainant was 15 years of age for the purposes of a defence of consent pursuant to s124(3)(a).
Sections 14 and 124 of the Code are of direct relevance to the issue in question. They are 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."
"124 Sexual intercourse with young person
(1) Any person who has unlawful sexual intercourse with another person who is under the age of 17 years is guilty of a crime.
Charge:
Sexual intercourse with a young person under the age of 17 years.
(2) It is a defence to a charge under this section to prove that the accused person believed on reasonable grounds that the other person was of or above the age of 17 years.
(3) The consent of a person against whom a crime is alleged to have been committed under this section is a defence to such a charge only where, at the time the crime was alleged to have been committed —
(a) that person was of or above the age of 15 years and the accused person was not more than 5 years older than that person; or
(b) that person was of or above the age of 12 years and the accused person was not more than 3 years older than that person.
(4) This section is to be taken to be in force from 4 April 1924.
(5) Subsection (3) is not a defence to a charge under this section in the case of anal sexual intercourse.
(6) Nothing in subsection (4) impugns or otherwise affects the lawfulness of a conviction arising from conduct that occurred before the commencement of the Criminal Code Amendment (Sexual Offences) Act 1987."
The mental elements that are an ingredient of the crime of sexual intercourse with a young person under the age of 17 years must be taken to be exhaustively stated in s124 and s13. There is no room for the introduction through the common law of any further mental element in the nature of mens rea or guilty mind as an ingredient of the crime. See R v Martin [1963] Tas SR 103 at 114, and R v Hodgson [1985] Tas R 75 at 101. The definition of the crime in s124(1) does not contain any mental element. Consistent with s13(1), the physical act of the accused, that is, the act of sexual intercourse, must be voluntary and intentional, but there is no primary obligation on the prosecution to prove that the accused knew that the complainant was under the age of 17. However, by reason of s14, it may be that an honest and reasonable, but mistaken, belief in relation to an external element of the crime, in this case the age of the complainant, is a defence; Martin (supra) at 120, and Attorney-General's Reference No 1 of 1989, R v Brown [1990] Tas R 46 at 54. If that defence is available, then the onus is on the prosecution to disprove it beyond reasonable doubt, Brown at 61.
On the face of s124, it only allows for a defence based on a mistaken belief about the age of a complainant where that belief is that the complainant was, or was above 17, as provided for in subs(2). However, for the accused in this case to rely on the defence of consent pursuant to subs(3)(a), he must first be entitled to claim in aid his mistaken belief that the girl was 15. Consistent with the decision of Sir George Crawford in R v McCabe [1980] Tas R 134 the accused cannot do so. At the time of that decision s124 was as follows:
"124 — (1) Any person who has unlawful carnal knowledge of a girl under the age of 17 years is guilty of a crime.
Charge: Defilement of a girl under 17 years of age.
(2) In any case in which the accused person is under the age of 18 years, it is a defence to a charge under this section to prove that he in fact believed on reasonable grounds that the girl was over the age of 17 years.
(3) In any case in which the accused person is under the age of 21 years, and the girl is over the age of 15 years, the consent of the girl shall be a defence to a charge under this section.
(4) In any case in which the accused person is under the age of 15 years and the girl is over the age of 12 years, the consent of the girl shall be a defence to any such charge.
(5) In any case in which the accused person is under the age of 16 years, and the girl is of the same age or older than such person, her consent shall be a defence to any such charge.
(6) Except as hereinbefore provided the consent of the girl shall in no case be a defence to any such charge."
In McCabe the accused was under 21 and the complainant was between 13 and 14 but the accused believed she was 16. Crawford J in substance said that the question of whether or not a mistaken belief on reasonable grounds as to a girl's age would excuse an accused's act of carnal knowledge depended on the construction of ss124 and 14. His Honour cited Martin (supra) as authority for construing Code provisions in the light of the common law and, at 135 – 136, his Honour went on to say:
"In my opinion, s 124 also should be likewise construed in the light of the common law and the decision in Reg v Prince (1875) LR 2 CCR 154 applied to that section. The decision in Reg v Prince has been applied at common law in Australia in Reg v Gibson (1884) 11 VLR 94 and in Reg v Karaiskakis (1956) 74 WN (NSW) 457. All three cases deal with analogous legislation (not in Codes). As Glanville Williams has observed, Criminal Law: The General Part , 2nd edn, §85, p 243, Reg v Prince is now 'riveted' upon English law in respect of the question of age, and Howard, Criminal Law, 3rd edn, p 385, has observed, the majority decision (in Reg v Prince) that knowledge or belief as to the age of the girl was not relevant in any way, applies, in the absence of a High Court pronouncement on the subject, to age requirements in sex offences generally — this, of course, subject to any express provision of the statute, such as s 124(2). In any case, quite apart from that principle, as to the point taken here that reasonable mistake as to age is applicable to subs (3), the positive terms of subs (6), in which the words 'in no case' are used, prevent such an application."
Counsel for the prosecution, Mr Karpeles, submits that I should follow the decision in McCabe. Judicial comity and the desirability of uniformity in the construction of statutes requires that I do so unless convinced that the decision was clearly wrong: Peck v Attorney-General [1956] Tas SR 88 at 90, Swetnam Bros Pty Ltd v Grundy [1997] TASSC 17, at par[16], and McKenzie v State of Tasmania [2011] TASSC 42, at par[29].
Ms Edwards, counsel for the accused, submits that the decision in McCabe is clearly wrong because the decision in Prince is no longer good law. For the proposition that Prince is no longer good law, she relies on the decision in B (a minor) v Director of Public Prosecutions [2001] 1 All ER 833, where Lord Steyn said at 850:
"I would reject counsel's attempt to reinvigorate R v Prince: it is a relic from an age dead and gone. It is no longer possible to extract from R v Prince a special principle of construction applicable only to age-based sexual offences."
Ms Edwards also submits that the approach taken in Prince is contrary to that taken by six of the seven justices of the High Court in CTM v R (2008) 236 CLR 440. Whilst I accept that these decisions are clear authority that the approach taken by the judges in Prince is no longer sound, I do not accept that it follows from this that the construction that Crawford J gave to s124 in McCabe was wrong, much less, clearly wrong. To explain my reasons, it is necessary to go to the decision in Prince and the legislative history of s124, a history that differs markedly from the history of the provision that was the subject of the decision in CTM. As to the history of that provision, see CTM, Hayne J, pars[152] to [168] and a different assessment of that history by Heydon J, pars[206] to [228].
Besides the reference given for Reg v Prince by Crawford J in the passage quoted in par[6] above, that decision is also reported in [1874 – 80] All ER at 881 and it is to the pages of this report that I refer hereafter. Prince was a decision of the Court for Crown Cases Reserved comprised of 16 judges. The issue before the court was whether the accused's belief that the girl was older than 16 was a defence to a charge under the Offences against the Person Act 1861 (UK), s55, which relevantly provided:
"Whosoever shall unlawfully take … any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour …".
With regard to this issue, Blackburn J, whose judgment was agreed with by seven judges, said at 886:
"The section in question [s55] is one of a series of enactments beginning with s50 forming a code for the protection of women …
Section 50 enacts that:
'Whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be guilty of felony.'
By s51:
'Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour.'
It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour because she was, in fact, not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was, in fact, old enough to give a valid consent. The man who has connection with a child relying on her consent does it at his peril if she is below the statutable age.
Section 55, on which the present case arises, uses precisely the same words as those in ss50 and 51, and must be construed in the same way… ".
Bramwell B, whose judgment was agreed with by five other judges, said at 884 to 885:
"But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act he does it at the risk of the girl turning out to be under sixteen. …
This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Section 50 makes it a felony unlawfully and carnally to know a girl under the age of ten. Section 51 enacts (when she is above ten and under twelve) that unlawfully and carnally to know her is a misdemeanour. Can it be supposed in the former case, a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in a case under s51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong. For the statute says if 'unlawfully' done. The act done with mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. …
Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute no doubt bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty, and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed."
Denman J agreed with the decisions of both Bramwell B and Blackburn J. Brett J dissented.
The 15 judges who comprised the majority in Prince were of the view that it would be wrong to construe the statutory provisions referred to as allowing an accused to exculpate himself on the basis of a mistaken belief as to the age of the girl. As Glanville Williams lamented in his text Criminal Law, 1953, Stevens & Sons Limited, at 259 to 260, legislation passed following the decision in Prince indicates that the legislature shares some of the views of the judges in Prince. Glanville Williams said:
"In accordance with the then prevailing current of legal opinion, the decision in Prince received the tacit approval of the legislature. Sections 50-1 of the Offences against the Person Act, which had been discussed in Prince, were replaced by sections 4-5 of the Criminal Law Amendment Act, 1885, which altered the ages by applying respectively to girls under thirteen and girls between thirteen and sixteen. Since no provision was made for the situation pointed out in Prince in which there would be a legislative hiatus if mens rea were required (namely, where the accused had carnal knowledge of a girl under thirteen believing her to be over thirteen), it must have been thought by the legislature that the reasoning in Prince prevented such hiatus from occurring. On the other hand, the legislature at that time decided to exclude the doctrine of Prince for a charge under section 5, because it made it a defence to show that the accused had reasonable cause to believe that the girl was over sixteen. Later, by the Criminal Law Amendment Act, 1922, s 2, this defence was confined to a man under twenty-four who had not been charged with the offence before. The same Act, in section 1, enacted that on a charge of indecent assault upon a person under sixteen, consent should be no defence. The omission to provide for mistake as to age was obviously intentional, but what is extraordinary is that even the limited defence allowed for a charge of carnal knowledge was not allowed for a charge of indecent assault. Thus the court was compelled to hold that when a man under twenty-four was charged for the first time with carnal knowledge of a girl under sixteen, proof that he had reasonable cause to believe that she was over sixteen was a complete defence to the charge of carnal knowledge, but was no defence to the charge of indecent assault, even though the only indecent assault was the act of carnal knowledge. The court pointed out other difficulties in the legislation, but Parliament has not seen fit to revert its attention to the matter."
The observations of Glanville Williams apply with equal force in this jurisdiction. Subsequent to the decision in Prince, changes made to statutory offences as to carnal knowledge of a young girl have reflected the view in Prince that a mistaken belief as to the age of a young girl is no defence. In substance, the view was that if the girl was particularly young, below 13 years in the United Kingdom, and 14 in Tasmania, a mistaken belief about her age could never be a defence, although this could be otherwise if she was older. Sections 47 and 48 of an 1863 statute in this jurisdiction titled An Act to consolidate and amend the Legislative Enactments relating to Offences against the Person, were the same as ss50 and 51 of the Offences against the Person Act 1861 (UK) that were the subject of the decision in Prince. Section 47 of the 1863 statute related to a girl under ten, and s48 to a girl above ten and under 12. Subsequent to the decision in Prince, ss47 and 48 of the 1863 statute were repealed and replaced by ss4, 5 and 6 of the Offences against the Person Act 1885 (Tas). Save for some differences in the ages covered by these sections, their drafting substantially reflects ss4 and 5 of the Criminal Law Amendment Act 1885 (UK) that are referred to in the above comments of Glanville Williams. Those sections in the 1885 Act (Tas) were:
"4 Whosoever shall unlawfully and carnally know and abuse any girl under the age of Thirteen years shall be guilty of Felony … .
5 Whosoever shall unlawfully and carnally know and abuse any girl being above the age of Thirteen years and under the age of Fourteen years shall be guilty of a Misdemeanor … .
6 Any person who unlawfully and carnally knows, or attempts to have unlawful carnal knowledge of any female being of or above the age of Fourteen years and under the age of Fifteen years, shall be guilty of a Misdemeanor … : Provided that it shall be a sufficient defence to any charge under this Section if it shall be made to appear to the Court before whom the charge shall be brought that the person so charged had reasonable cause to believe that the female was of or above the age of Fifteen years … ."
As is self-evident, ss4 and 5 above increased the ages of girls covered by these offences to under 13, and above 13, and under 14. Moreover s6 introduced an offence in relation to girls above the age of 14 and under the age of 15, but as to this offence it included a provision that was contrary to the Prince approach by making it a defence to show that the accused had reasonable cause to believe that the girl was of or above the age of 15. The upper age of 15 specified in s6 was increased to 16 by the Offences against the Person Act 1910 (Tas), s2. (Incidentally, as in the UK, s14 of the 1885 Act (Tas), provided that on a charge of indecent assault upon a young person under the age of 14, consent was no defence.) In result, by 1910 the position in Tasmania was that whilst a mistaken belief that a girl of or above 14 and under 16 was of or above 16, was a defence for the purposes of the 1885 Act, s6, a mistaken belief as to the age of a girl under 13, s4, or above 13 and under 14, s5, was not. Parliament's failure to provide that a mistake as to age was a defence for the purposes of ss4 or 5 was plainly intended.
The 1885 Act was repealed by the Criminal Code Act 1924 (Tas). The Code, s124, which replaced ss4, 5 and 6 of the 1885 Act, increased the threshold age of a girl for the purposes of the offence from under 16 to under 18.
When enacted, s124 provided:
"124 – (1)Any person who has unlawful carnal knowledge of a girl under the age of eighteen years is guilty of a crime.
Charge: Defilement of a girl under eighteen years of age.
(2) In any case in which the accused person is under the age of twenty-one years, it is a defence to a charge under this section to prove that he in fact believed on reasonable grounds that the girl was over the age of eighteen years.
(3) In any case in which the accused person is under the age of twenty-one years, and the girl is over the age of sixteen years, the consent of the girl shall be a defence to a charge under this section.
(4) In any case in which the accused person is under the age of fifteen years and the girl is over the age of twelve years, the consent of the girl shall be a defence to any such charge.
(5) In any case in which the accused person is under the age of sixteen years, and the girl is of the same age or older than such person, her consent shall be a defence to any such charge.
(6) Except as hereinbefore provided the consent of the girl shall in no case be a defence to any such charge."
For relevant purposes, it is significant that when first enacted, s124 manifested the same intent on the part of Parliament with regard to a mistaken belief about the age of the girl as was apparent in the legislation it repealed. Save where the mistaken belief was that the girl was over the threshold age of 18 (and the accused was under 21), a mistaken belief in the age of the girl was no defence.
Statute No 6 of 1974, s2, amended s124 by reducing several of the age requirements. The changes included reducing the age specified for the girl from 18 to 17 in subs(1) and (2). Following this amendment, s124 was as it is set out in par[5] of these reasons, and as it was at the time of the decision in McCabe. Nothing in the 1974 amendments suggests other than that Parliament continued to intend that a mistake as to the age of the girl should only be a defence where the mistake was that she was over the threshold age provided for in subs(2). Accordingly, it was then only where the mistaken belief was that the girl was over the age of 17 (and the accused was under 18) that a mistaken belief about her age was a defence.
Statute No 71 of 1987 amended s124 to protect boys as well as girls, extended the defence of a mistaken belief that the complainant was or above the age of 17 to any accused, not only an accused under the age of 18, and replaced subs(3) to (6) with a new subs(3) that picks up aspects of the replaced subsections but does not endeavour to replicate subs(5). By Statute No 12 of 1997, subs(4), (5) and (6) were added to s124. Consequent upon these amendments s124 is now as it is set out in par[3] of these reasons.
Whilst the consolidation of former subs(3) to (6) into subs(3) involved some changes, those changes provide no indication that Parliament had resiled from its view that a mistake as to the age of a complainant should only be a defence where the mistake was that the complainant was over 17. By retaining the substance of s124(2) Parliament manifested a clear intent to so confine that defence. In these circumstances there is no basis upon which resort can be had to s14 to allow an accused to rely on a belief that the complainant was of an age of less than 17 so as to claim in aid consent pursuant s124(3). Consistent with s14, the question of whether an honest and reasonable but mistaken belief in a fact will excuse an offence is "to be determined on the construction of the statute constituting the offence". Against the background referred to, it is simply not open to construe s124 as allowing an accused to rely on an honest and reasonable but mistaken belief about a complainant's age, save as provided for in s124(2). This conclusion accords with that of the learned authors of Tasmanian Criminal Law – text and cases, Vol 1, J Blackwood and K Warner, University of Tasmania Law Press, 2006 at 336, where they say that on the construction of s124 as amended, any mistake as to age, other than one within s124(2), is not a defence.
A further reason for upholding the construction given to s124 in McCabe is that the decision was published in 1980, and since its publication s124 was amended in 1987 and 1997. On each of these occasions Parliament had an opportunity to amend s124 so as to alter the construction placed on it in McCabe, but did not do so. None of the amendments then made altered the confining effect of s124(2) on the circumstances in which a mistake as to age may exculpate an accused. That Parliament chose not to make any amendments to s124, which suggest that it should be construed otherwise than it was in McCabe, is good reason to conclude that Parliament is satisfied with that construction; CTM (supra) par[18], Derek George Shepard v Chiquita Brands South Pacific Limited [2004] FCAFC 76, pars[16] to [20], and Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106 - 107.
I recognise that the construction placed on s124 in McCabe can be said to be unjust to a young accused in the circumstances of this case. However, this provides no reason for departing from the construction that has been adopted, as it is clear that this was an intended outcome.
I mention one other matter. When an accused relies on a mistaken belief that the complainant was over the age of 17, the effect of s124(2) is that the accused bears the onus of establishing that belief on the balance of probabilities. However, if s124 was construed as contended for by the accused in this case, when an accused relied on a mistaken belief about the age of a complainant for the purposes of in turn relying on the defence of consent pursuant to s124(3), the prosecution would bear the onus of disproving that belief beyond reasonable doubt, Brown (supra) at 61. It would be incongruous if in one circumstance the accused bore the onus of establishing the belief on the balance of probabilities, whilst in the other circumstance the prosecution bore the onus of disproving the belief beyond reasonable doubt.
This potential incongruity has no bearing on my rejection of the construction of s124 advanced by the accused, as there are many similar anomalies in and between the provisions contained in the chapter of the Criminal Code that contains s124, Ch 14, "Crimes Against Morality". Many of these anomalies are addressed in Final Report No 18, Tasmanian Law Reform Institute, Sexual Offences Against Young People, dated October 2012. This report was prepared in response to the Attorney–General's request that the Institute review the defence of mistake as to age.
I will touch on some of the anomalies. Besides s124(2), express provision is made for a defence based on an accused's mistaken belief about the age of a complainant in the following provisions in Ch 14: s125A(5), maintaining a sexual relationship with a young person under the age of 17 years, s125B(2), indecent act with or directed at a young person under the age of 17 years, s125C(5), procuring unlawful sexual intercourse with a young person, and s125D(5)(c), communicating with intent to procure a person under the age of 17 years. The effect of these provisions is the same as that of s124(2), the onus is on the accused to prove on the balance of probabilities that he or she held a mistaken belief that the victim was of or above the age of 17.
However, no express provision is made for a defence based on a mistaken belief as to the age of the complainant in some provisions in Ch 14. They include s127, indecent assault, and s127A, aggravated sexual assault. So when an accused charged with either of these offences relies on s14 for a defence of mistake as to age, the prosecution bears the onus of disproving the mistaken belief beyond reasonable doubt, Brown (supra) at 61.
This incongruity is compounded, as the crimes of indecent assault and aggravated sexual assault are unlawful sexual acts for the purposes of the crime of maintaining a sexual relationship with a young person, and s125A(5) provides, with regard to that crime, that it is a defence to prove that the accused person believed on reasonable grounds that the young person was of or above the age of 17 years. In consequence, when a jury considers a charge of maintaining a sexual relationship with a young person under the age of 17 years, it must consider it on the basis that the onus with regard to a mistaken belief as to age is on the accused on the balance of probabilities. However, if the jury dismisses that charge and considers an alternative verdict on a charge of indecent assault or aggravated sexual assault, it must consider that alternative charge on the basis that the prosecution bears the onus of disproving the accused's mistaken belief beyond reasonable doubt. Against this background it can be seen that the fact that any particular construction of s124 would result in an incongruity provides little guidance on the appropriateness of the construction.
Consistent with the decision in McCabe, I hold that the accused cannot rely on an honest and reasonable, but mistaken, belief that the complainant was 15 years of age for the purposes of a defence of consent pursuant to s124(3)(a).
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