The King v Rohan (a pseudonym)

[2023] HCATrans 66

[2023] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M76 of 2022

B e t w e e n -

THE KING

Applicant

and

ROHAN (A PSEUDONYM)

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 MAY 2023, AT 10.30 AM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS E.H. RUDDLE, KC appears with MS J.B. WARREN for the applicant.  (instructed by Office of Public Prosecutions (Vic))

MR T. KASSIMATIS, KC appears with MS G.F. CONNELLY for the respondent.  (instructed by Greg Thomas Barrister & Solicitor)

GORDON J:   Ms Ruddle.

MS RUDDLE:   May it please the Court.  In this matter the three offenders, pursuant to an agreement or arrangement, agreed to collect the 11‑year‑old victim known by the pseudonym Daisy, supply her with drugs and take part in acts of sexual penetration against her.  Now, while this appeal deals with both the supply and sexual penetration offences, I will focus primarily on the sexual penetration offences.  In the legislative scheme, the legislature has determined that it is not a requirement or an element of the offence of sexual penetration of a child under 12 that the offender know that the child is indeed under 12, nor is it an offence if there is a mistaken belief that the child is older.

In this circumstance, the three offenders acted in accordance with the agreement to collect and penetrate Daisy.  Daisy and Katie, the other victim, were supplied with drugs, and then each of the three respondents took part in acts of sexual penetration against Daisy.  It is now said by the respondent and accepted by the Court of Appeal below that despite knowledge of the age not being an element of the offence, and mistaken belief in age not being a defence to the offence under section 49A, and it not being relevant consideration when the offender themselves takes part in the penetration, that to secure a conviction, as complicit offenders, the Crown is required to prove that the complicit offender, but not the principal offender, knew that Daisy was under the age of 12.

EDELMAN J:   Ms Ruddle, the proposition of law that you make is, really, just that section 323 did not introduce a sort of radical change to the pre‑existing law, which was that there is a difference between primary and derivative liability.

MS RUDDLE:   Yes, your Honour.  That is exactly the ‑ ‑ ‑

EDELMAN J:   That is what it really comes down to, is it not?

MS RUDDLE:   Yes.  I was taking the Court through the practical difficulties that arose in this case to demonstrate that not only would it be unusual for the legislature to have made that decision – to, essentially, do

away with the difference between derivative and principal liability – but that the Court of Appeal fell – where the Court of Appeal went wrong and where the error arose was by putting to one side the principles set out by this Court in Osland and accepting that all liability, under section 323, is derivative.  They make that finding at paragraph 60 of the decision below.  It is as we have set out in the written case.  That is really where this matter goes wrong. 

It is not only the difference between aiding and abetting, but the necessary impact of an agreement not being wholly derivative that has led the Court of Appeal into error and can be demonstrated by a number of examples.  Now, we have set out one example of the absurd results in our written case, which is the example we give of the dual penetrations, but, in my respectful submission, it can also be demonstrated by way of changing just one fact in this particular case.

So, let us presume that immediately after being supplied with the drugs, Daisy was blindfolded, and each of the seven sexual penetrations and the two sexual assaults took place in the same way, as alleged in this case.  On the reasoning of the court below, it would be incumbent on the Crown, notwithstanding section 324B – which provides that the Crown is not required to prove which offender was complicit and which offender was the principal – it would be the case that for each of those offences the Crown would be required to prove knowledge in each of the offenders as to the age of the victim.

Now, that would wholly undermine the statutory scheme set out in section 49A and the various defence provisions culminating in section 49ZC which provides that it is not a defence of mistake – as to age, is not a defence to a charge under 49A for penetrating a child under 12, and there are good and obvious logical reasons why the legislature has so chosen.

GORDON J:   Ms Ruddle, given the way in which you have identified the issue, we might hear from Mr Kassimatis.

MS RUDDLE:   May it please the Court.

GORDON J:   Mr Kassimatis, you are on mute and we cannot hear you, I am sorry.

MR KASSIMATIS:   Is that better?

GORDON J:   We can.  Thank you.

MR KASSIMATIS:   If the Court pleases.  We, really, are at a very stark difference.  In our submission, the scheme represented by section 323(1) is entirely derivative.  The liability under each of the four limbs is derivative in nature, and that is to be found, we say, in section 324, which, of course, says:

if an offence . . . is committed –

and then goes on to make an involved offender liable.  So, in our respectful submission, 323(1) is not a section that covers both principals and involved offenders, but only the latter.  Our primary submission, then – really, it boils down to this; there is not much else to say about it.  Our primary submission is that the statute itself provides the basis for the correctness of the Court of Appeal’s judgment.

EDELMAN J:   Do you accept that if the statute is properly construed as the Court of Appeal put and decided, that that involves a very significant break from the common law with very dramatic consequences?

MR KASSIMATIS:   No, not necessarily.  Because even under Giorgianni at common law, we saw the kind of principles which have now been applied under the statute.  Osland did not represent the law as it related to principals and co‑offenders across the board.  So, no, with respect, I do not accept that.

EDELMAN J:   Do you say that entry into an agreement, arrangement or an understanding, one person acting as agent for another, involved derivative liability prior to section 323?

MR KASSIMATIS:   No.  With respect, I misunderstood your Honour’s question.  No, no.  But that really is just a definitional problem, not a practical one, in our submission.  What we are resisting here is a construction of the statute that renders involved offenders liable for joining an agreement in circumstances where it is no more than agency.  We say the implication of the applicant’s construction of the statute is to render criminally liable those who are little more than agents.

EDELMAN J:   So, there is a fundamental distinction between me performing an act myself and me asking someone to perform the act on my behalf.

MR KASSIMATIS:   Yes.

EDELMAN J:   One is primary, and one is derivative, on your submission.

MR KASSIMATIS:   In our submission, yes.

GORDON J:   Is there anything else you wish to say, Mr Kassimatis?

MR KASSIMATIS:   No, your Honour. 

GORDON J:   Thank you.  Ms Ruddle, anything in reply?

MS RUDDLE:   Yes, just very briefly, your Honour.  As we have set out in the written case, we accept that there is applicability for the principles set out in Giorgianni in regards to section 323(1)(a).  In the explanatory memorandum, it was made very clear that those principles – notwithstanding that the Act says the common law is abolished – had work to do in relation to aiding and abetting.  However, those principles do not, in our respectful submission, have the same applicability in relation to section 323(1)(c).

Again, in the explanatory memorandum, the legislature made quite clear that that section which was designed to adopt the concepts covered by joint criminal enterprise, extended common purpose and the like.  Those are the principles set out in Osland.  I refer the Court to our written material, particularly in the reply, the quote from Clayton which sets out the difference – and the important difference – between derivative and principal liability in those different forms of complicity.

GORDON J:   Thank you, Ms Ruddle.  The Court will adjourn to consider the position it will take.

AT 10.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

GORDON J:   There will be a grant of leave in this matter.  Ms Ruddle, is it less than a day?

MS RUDDLE:   Yes, your Honour.

GORDON J:   Mr Kassimatis, do you agree with that?  I am sorry, I think you are on mute again.  I will take the nod as a yes.  There will be a grant of leave, and I encourage your instructors to speak to the Registrars in relation to the future management of the appeal.

Adjourn the Court to 11.30 am, please.

AT 10.45 AM THE MATTER WAS CONCLUDED