NSWNSWCCA

CTM v R [2007] NSWCCA 131

[2007] NSWCCA 131

Court of Criminal Appeal (NSW)|2007-05-24|Before: Hodgson JA, Howie J, Price J

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2007-05-24

Before

Hodgson JA, Howie J, Price J

Source

Original judgment source is linked above.

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Reported Decision: 171 A Crim R 371

Appeal Outcome: Special leave granted by the High Court - 16 November 2007; Appeal dismissed by the High Court - 11 June 2008 - CTM v The Queen [2008] HCA 25

New South Wales

Court of Criminal Appeal

CITATION: CTM v R [2007] NSWCCA 131

This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/12/2006

JUDGMENT DATE:

24 May 2007

JUDGMENT OF: Hodgson JA at 1; Howie J at 9; Price J at 157

DECISION: The appeal against conviction is dismissed . The application for leave to appeal against sentence is granted, the appeal allowed and the sentence quashed. The matter is remitted to the District Court.

CATCHWORDS: Criminal Law - Offences - Child sexual assault - whether defence by reason of mistake of age exists - Criminal responsibility - whether repeal of statutory defence gave rise to common law defence - Statutory Interpretation - whether legislature intended to exclude common law defence when creating new child sexual assault offences - Appeal - whether verdicts unreasonable in light of acquittal of more serious alternatives - Sentence - failure to comply with provisions of Children (Criminal Proceedings) Act.

LEGISLATION CITED: Crimes Act 1900 - ss 52A, 52B, 77(2) (now repealed), 61J(1), 61J(2)(d), 66C(3,) 66C(4), 66C(5)(g), 66E(1A), 66J, 71, 76, 77, 78K, 78O, 78Q, 78R

Children (Criminal Proceedings) Act 1987 - s 3

Crimes Amendment (Sexual Offences) Act 2003 - s 3, Schedule 1(14)

Crimes (Girls' Protection) Act 1910

Crimes (Girls' Protection) Act 1911

Criminal Appeal Rules - rule 4

Criminal Appeal Act 1912 - s 6(1)

Crimes Act Victoria

Crimes Amendment (Sexual Offences) Act 2003

Criminal Law Amendment Act 1883 - ss 41, 42, 59, 60, 61, 369

Criminal Law Amendment Act 1885 (UK)

Criminal Law Manual

Crimes (Amendment Act) 1924 - ss 71, 77

Crimes (Child Assault) Amendment Act 1985

Interpretation Act 1987 - s 31(1)

CASES CITED: Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297, 164 A Crim R 151

CTM v R [2007] NSWCCA 131 | Case summary | Zoe

HODGSON JA: I agree with the orders proposed by Howie J and with his reasons.
I agree that there is a presumption that a Proudman v. Dayman defence is available to charges of criminal offences, particularly those of strict liability.
I agree also that there are powerful indications of legislative intention that such a defence should not be available in respect of s.66C offences.
Before its repeal on 13 June 2003, s.77(2) of the Crimes Act provided for a defence in respect of the then existing s.66C offences where “the person charged and the child to whom the charge relates are not both male” and the accused proves, on the balance of probabilities, that the child was over 14, that the child consented, and that the accused did, with reasonable cause, believe that the child was of or over 16.
That provision conveyed a clear legislative intention that there should not be the wider Proudman v. Dayman defence to cases in which it applied. In my opinion, it also conveyed a clear legislative intent that there should not be the wider Proudman v. Dayman defence where both the accused and the child were male, but rather that there should be no defence of that general kind in such cases.
Further, in my opinion there was a clear legislative intention that, where the child was not over the age of 14, there should be no defence based on honest and reasonable mistake as to the child’s age; that is, that in relation to offences under s.67 (carnal knowledge of a girl under 10) and s.71 (carnal knowledge of a girl of or above 10 but under 14), a reasonable belief that the child was 16 could not be a defence. It would make no sense to have a Proudman v. Dayman defence in relation to those offences, when the only defence where the child was over the age of 14 was the narrower s.77(2) defence.
It is inconceivable that the repeal of s.77(2) would activate a Proudman v. Dayman defence in those cases where s.77(2) had not operated, that is, in relation to cases where both the accused and the child was male or where the child was not over 14. In my opinion also, it was not the intention of the legislature to replace the narrow s.77(2) defence with a broader Proudman v. Dayman defence where s.77(2) did apply, or in relation to offences under the amended s.66C covering generally the same field. The intention appears to have been to restrict defences, not to broaden them; and otherwise there would be the anomalous situation that, in the absence of anything in the legislation as amended to suggest this result, a Proudman v. Dayman defence would apply to some age-related sexual offences and not to others.
Accordingly, the appeal against conviction must fail. Introduction
HOWIE J: This appeal raises a significant question of law that has been the subject of controversy in both the District and Local Courts. It concerns the consequences of the repeal in 2003 of s 77(2) of the Crimes Act 1900, a section that provided a limited defence to certain sexual assault offences.
The matter was first listed before this Court on 13 September 2006. On that date, in light of submissions filed by the Crown, the appellant sought and was granted an adjournment in order to meet those submissions which first raised the issue of the consequence of the repeal of s 77(2). The matter was relisted for hearing before this Court on 13 December 2006. At the conclusion of the hearing both parties sought liberty to place further submissions before this Court but, because of the summer vacation, asked to be allowed to file submissions by the second week in February 2007. On 6 February the appellant made further submissions to which the Crown replied on 16 February. On 12 April the appellant notified the Court that he would not be making any reply in answer to the Crown’s further submissions.
The appellant and a co-accused stood trial before a jury in the District Court on a charge of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. The appellant was at the time of the alleged offence under 18 years of age. The circumstance of aggravation relied upon by the Crown was that the complainant was under the age of 16 years, being aged 15: see s 61J(2)(d). This was not a “serious children’s indictable offence” for the purposes of the Children (Criminal Proceedings) Act 1987: see the definition in s 3 of the Act that exempts an offence under s 61J(1) where the circumstance of aggravation alleged is under s 61J(2)(d). The offence, therefore, could have been dealt with in the Children’s Court but the District Court also had jurisdiction to determine the matter: see Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297; 164 A Crim R 151.
The indictment presented before the jury contained an alternative count contrary to s 66C(4) of the Crimes Act being an offence of having sexual intercourse with a child between the age of 14 and 16 in circumstances of aggravation. The aggravating circumstance alleged was that the appellant took advantage of the complainant being under the influence of alcohol to commit the offence: see s 66C(5)(g).
The appellant was found not guilty by the jury of the two charges contained in the indictment but found guilty of a statutory alternative to the s 66C(4) offence being an offence under s 66C(3) of the Crimes Act, a non-aggravated form of the offence of having sexual intercourse with a child between the age of 14 and 16: see s 66E(1A) of that Act that provides for alternative verdicts. He was as a consequence sentenced to imprisonment but that sentence was suspended.
The appellant initially appealed against his conviction on a single ground as follows: 1. The appellant appeals against his conviction on the ground that the verdict was unsafe and/or incapable of being supported by the evidence.

The complainant said that she had met the appellant at school the year before and knew the other two males through him. She had known them for about seven months or probably longer. She said there were two other males at the unit at the time, a person named T and someone who was referred to as B. She arrived at the unit at about 10.30pm with some friends. She had been drinking alcohol over a period of about three hours. The males at the unit were drunk and “acting stupid”.
At some point in time she was about to leave with a friend. As she went to walk out, M grabbed her and she fell into his lap and passed out. She became aware of her friends leaving. Eventually she was taken by M and the appellant and placed on a mattress in the appellant’s room. There was a doona on the mattress that she described.
She fell asleep. The next thing she remembered was having almost no clothes on and the appellant having intercourse with her. She heard the appellant say something to M but she could not remember what it was but she recognised the appellant’s voice. She opened her eyes for a moment and saw that the appellant was naked. She also saw his face. She asked him what he was doing but he did not answer. She tried to roll over but he stopped her. She felt useless, “like I couldn't do anything about it and I didn't know what to do and I was scared". She said that the alcohol that she had consumed had made her very tired and all she wanted to do was sleep.
She said that nothing happened for a minute and then she could hear talking in the background. She could hear M telling B to do it, but he refused. She fell asleep again and then woke to find the co-accused having sex with her. He heard him say to the appellant, “How long did it take you?” She tried not to think about what was happening: “I thought it was my fault, that I should do something but I didn’t know what to do, I was just scared”.
Then someone else started to have sex with her but she wasn't sure who it was, although she thought it was M. B came into the room and lay down next to them on the bed. When she later woke, B was still there but fully clothed.
B offered her the use of his phone if she needed it. She found all her clothes, dressed and then went downstairs. The appellant, the co-accused, M and T were there. She did not say anything to them but M asked her where she was going and what was the matter. The complainant told them that they were "fucked in the head about what had happened”. She left and the appellant followed her outside with her phone that she had left inside. He asked her why she was upset, to which she replied, "if you don't think that would make someone upset, then you've got problems". M then walked out and started yelling at her, calling her a "dirty slut". He said that he had done nothing to her and, if she said he had, she was a liar. He then threw a bottle at her that smashed on the ground.
She later met one of her friends who asked her why she was crying. She said, "I didn't know what I was doing and they had sex with me and I didn't want to". Her friend told her that it was rape and that, if she did not go to the police, she would. Eventually the complainant told the police what had happened when an officer approached her at about 2.30am.
In evidence at the trial the complainant gave her date of birth and was in Year 9. The appellant was at the same high school in Year 11. She had known the appellant for about six months. In cross-examination she had agreed that she had always regarded the appellant as a good friend. They had talked about becoming boyfriend and girlfriend but had decided that they would just remain friends.
At the trial M, B and T gave evidence but it is unnecessary for the resolution of this appeal to refer to their evidence. The appellant’s account
The appellant participated in an ERISP with the police. In summary his account was as follows. He said that towards about 8 pm, after he finished work, he started receiving text messages from the complainant saying that they should “hang out and get on together”. When he went back home, the co-accused, M, T and B were there. They were “sitting around” drinking beer. At about 10 pm he talked to the complainant by phone to see where she was. She said she was with friends. The appellant and the others went to buy another carton of beer. On the way back they met the complainant. She went with them to the unit but later left to find her friends. A short time later the complainant and her friends arrived. Most of the girls were drunk.
An argument occurred between T and one of the girls and she decided to leave. The complainant was upstairs, almost passed out on the lounge. Her friend tried to wake her up but was unsuccessful. The appellant told her to leave the complainant and come back in the morning. As the complainant's friends were making too much noise and he was worried about complaints from the neighbours, the appellant told them to leave.
The appellant decided to move the complainant to M’s room but, when he tried to do so, she awoke and started talking to him. Eventually they started kissing and he thought that M would not be happy if they were doing it in his room. So he stopped, helped the complainant up and took her into his room. They lay there for a bit and then started kissing. M walked in, stood there for a moment and then left. The complainant and the appellant continued kissing. He started “making my way down towards her body like she had her hands on my head and sort of, she is guiding me downwards and then that's when I asked her if she was okay with what was going on and she said ‘yes’”.
M then walked back in and the appellant told him to leave. He said that he took off his shirt and then "all the guys walked in". He told them that he was planning on having sex with the complainant and had a condom. He asked the others to leave but they would not. He stood up and went into the bathroom and thought about what he was doing because he had a girlfriend himself. T came out and the appellant asked what they were doing in there. He said, "Nothing much, you know, they're just talking and [C’s] flirting a little bit". The appellant walked into the room and saw the complainant still lying on the bed. M was sitting on T’s bed and B was lying on the mattress on the left side of the complainant. The co-accused was sitting on the end of the mattress with his shirt off.
The appellant left the room and went downstairs to play a computer game with T. Every now and then M and the co-accused went up and down the stairs. Each time he noticed that one of them would have his shirt off. M said to him that the co-accused was being an idiot and flirting trying to get "close to her". The appellant said, "Just, just leave her be, just let her go to sleep". The appellant never went back into the bedroom and never had intercourse with the complainant.
The appellant said that he had known the complainant since the start of the year. He knew she was 16 years old because she had told him that when he first met her. He just assumed that she was 16. He thought that she was in year 10 at school.
The appellant did not give evidence at trial. However he called a character witness. The relevant statutory provisions
The offence for which the appellant was convicted was that under s 66C(3) of the Crimes Act which is as follows: (3) Child between 14 and 16 Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.

Had that section been in operation at the time of the appellant’s trial, it would have meant that there was a defence provided to an offence under s 66C because the complainant was above the age of 14. That defence would have arisen where it was proved that the complainant was consenting to sexual intercourse and that the appellant reasonably believed that the complainant was of, or above, the age of 16 years. Because the complainant said she was not consenting and because consent was, so far as proof of the offence was concerned, irrelevant, the appellant would for all practical purposes have had to prove, on the balance of probabilities, both the consent of the complainant and his belief that she was over the age of 16. The trial
A question arose at the trial as to the effect of the repeal of s 77(2) on the issue of the appellant’s belief, as stated in the ERISP, that the complainant was above the age of 16.
The first submission made to the Judge was that he should direct a verdict on the charge under s 61J. It was argued that the aggravated circumstance alleged was that the complainant was under the age of 16, yet the evidence before the jury was that the appellant believed she was 16 years of age and, therefore, he could not be convicted of that offence. The Judge rejected that application on the basis that it was an element of the offence that the complainant was in fact under the age of 16 and that the prosecution needed only to prove that fact and not the appellant’s knowledge that she was under that age. As the appellant was acquitted of that offence, it is unnecessary to consider the correctness or otherwise of the trial judge’s ruling.
The next submission was that there was a defence available to the s 66C offences on the basis that the appellant reasonably believed that the complainant was of, or over, the age of 16. The argument was that, in light of the repeal of s 77(2), the common law applied to the offences under s 66C so that there was a defence available in accordance with the decision in Proudman v Dayman (1941) 67 CLR 536. This is a “defence” arising from a reasonable mistake of fact. The “defence” was described as a rule by Dixon J in Proudman v Dayman in the following terms (at 539): “As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.”
The defence operates so that in any criminal offence, and particularly one of strict liability, if there is evidence that the accused reasonably but mistakenly believed in the existence of a fact which, if it had existed, would have meant that no offence was committed, the Crown must negative the accused’s belief in the existence of that fact beyond reasonable doubt. The application of the common law defence to an offence of having sexual intercourse with a person under a certain age would be that it was a “defence” to the charge if the accused had an honest and reasonable belief that the complainant was above the specified age in circumstances where that belief would make “the defendant’s act innocent”.
In response to this submission the Judge referred to three judgments by other judges of the District Court dealing with the effects of the repeal of s 77(2) and determined that “the common law defence is still available”. Accordingly he permitted the appellant and his co-accused to argue the defence of an honest and reasonable mistake of age in relation to the s 66C offences but not in respect of the s 66J offence.
In summing up to the jury on the issue of the appellant’s knowledge of the complainant’s age in respect of the s 66C offences the Judge stated: “There is in this case, a defence. That defence is one in which the onus of proof switches slightly. Only in this one small area. The defence is one of having an honest belief that she was not under the age of 16 years. The Crown must prove its case beyond reasonable doubt but where there is a defence such as this the onus switches. There is no onus of proof of any matter on an accused person except where such a defence as this and there are other such defences raised. The accused needs only to establish what the accused relies on in this regard to a lower standard of proof than beyond reasonable doubt. The accused is required to prove the accused's case in this regard only on the balance of probabilities. That is to say the accused needs only to show that it is more likely than not that what the accused asserts is so. I will come to the evidence on that but I have put that to you as a matter of law. You probably did not hear it argued but it is a matter I have to put to you.”

Counsel for the appellant asked the Judge to identify for the jury the evidence concerning the appellant's belief of the complainant's age. The Judge directed the jury as follows: “……. I told you there was a defence not in the first charge each is charged with but in the alternate charge. That is that they reasonably believed that [the complainant] was 16 years or more of age and I must remind you that as far as each of them is concerned there are the questions and answers given in the records of interview which I referred you to in addition to that, with [the appellant] he was at school with [the complainant]. Knew what year she was in and knew her from school.”
It is clear that, if the Proudman v Dayman defence applied, the Judge was in error in directing the jury that the onus of proof of that defence was on the appellant. Therefore, if that defence did apply to the offence under s 66C(3), the ground of appeal asserting that the judge misstated the onus of proof in that regard must succeed. Notwithstanding that no objection was taken to those directions, it would seem to me to be a fundamental error that might well have affected the jury's decision to convict the appellant of that offence. Therefore, in my view, rule 4 of the Criminal Appeal Rules could not be applied.
However a significant issue litigated between the parties in the hearing of this appeal is whether, as a consequence of the repeal of s 77(2), the common law defence applied or whether the offence under s 66C(3) was thereafter one of absolute liability, so far as the element of the complainant’s age was concerned. There was also an issue raised by the Crown as to whether, even if the Proudman v Dayman defence applied, the applicant could have the benefit of it when he was asserting that he did not have sexual intercourse with the complainant.
Before considering these difficult issues, it is appropriate to deal with a ground of appeal where a consideration of the repeal of s 77(2) does not arise. Unreasonable verdict.
The argument raised by the appellant is that the verdict of guilty of the offence under s 66C(3) was, in the circumstances of the issues raised at the trial, unreasonable. There was a suggestion that in some way it must have been a compromise on the part of the jury. That suggestion should be rejected at the outset in light of what was said to the jury about the alternative counts. The Judge said: “I should also say to you with alternative verdicts, you should not regard that as an invitation to compromise. Supposing, for example, that six of you were for a verdict of guilty on the major count and six believed he was not guilty of anything at all. It would be quite wrong, in those circumstances, to compromise by convicting him on the lesser charge. You understand that I am sure. It is commonsense.”

Although consent was not really an issue because the appellant’s case was that he did not have intercourse with the complainant, the jury still had to consider, for the purpose of the offence under s 61J, whether, if he did have intercourse with her, the appellant knew that she was not consenting. In the summing up the Judge gave the jury a full direction relating to the appellant’s knowledge as to the fact that the complainant was not consenting. It included a direction that, if the appellant’s state of mind was that he honestly but wrongly believed she was consenting, the charge would not be made out. After these directions the Judge said: “You may wonder why I put all that to you because the case that has been presented to you is no sexual intercourse but the fact is if you were to find to the contrary, beyond reasonable doubt, you still have got to consider each of the other elements. I will shortly come and refer to some evidence in relation to that.”
There was evidence from which the jury could have had a doubt as to whether the appellant knew that the complainant was not consenting. The complainant stated that the “boys” were drunk and the effect of her evidence was that, although she was not consenting, she did very little to indicate this fact because of her tiredness and fear. There was no direction to the jury on recklessness in respect of lack of consent. It was, therefore, in my opinion well open to the jury to be satisfied beyond reasonable doubt of the complainant’s version and yet have a doubt that the appellant knew that she was not consenting and so acquit him of the s 61J offence.
Reliance is also placed upon the fact that the jury acquitted the appellant of the offence under s 66C(4), the aggravated offence under that section. It will be recalled that the circumstance of aggravation relied upon was that the appellant took advantage of the complainant being under the influence of alcohol in order to commit the offence. It was submitted that the acquittal on this charge must have been on the basis that the jury had a doubt about the complainant’s account of events including whether intercourse occurred.
In this respect the jury were directed as to what the aggravating circumstances meant. The Judge said: “Now this charge is somewhat different as you see from reading it. It still involves sexual intercourse but consent is not an issue. The other issue is the circumstance of aggravation, namely that they took advantage of [the complainant] being under the influence of alcohol in order to commit the offence. To take advantage is simply to do something to gain a benefit. The benefit which is alleged is sexual intercourse. The rest of it, the wording, speaks for itself. I don't have to go through all those other matters again with you…………….”
During the course of their deliberations the jury asked the following question: “Are we to assume that if [the complainant] was under the influence of alcohol and that sex took place does that automatically imply she was taken advantage of?”

With respect this explanation was hardly helpful to the jury who obviously wanted some assistance as to the matters that the Crown had to prove in order to make out the element of aggravation. Again with respect the Judge’s direction in the body of the summing up made little sense by explaining that “to take advantage” meant “to do something to obtain a benefit”. The Judge should have at least explained to the jury in answer to the question, that the appellant must have known that the complainant was under the influence of alcohol. They should also have been told that the Crown had to prove that the appellant knew that her intoxication affected her attitude to sexual intercourse, making it more likely that she would consent to it. Unless it was proved that the appellant had that knowledge, I do not understand how the aggravated offence under s 66C(4) could have been made out.
I think it very likely that, after the question was asked, the jury had no more understanding of what was needed to be proved under the s 66C(4) offence than before they asked the question. It is quite possible that the jury did not convict of that offence because they were unsure of how it was to be proved once they accepted that sexual intercourse took place and that the complainant was under the influence of alcohol. The Judge told them those two facts were not enough, but did not tell them more. In my opinion, the jury did not convict of this offence simply because they did not understand what the Crown had to prove to make out the offence.
In any event, the test for unreasonableness in apparently inconsistent verdicts was discussed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. In the joint judgment of Gleeson CJ, Hayne and Callinan JJ, their Honours wrote (footnotes omitted): “[34] Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie [v The Queen]. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.”

Further it is curious, in light of the appellant’s argument, that neither defence counsel advanced the submission that a verdict of guilty on the alternative under s 66C(3) was not open to the jury on the issues raised at the trial. There was no application to withdraw that alternative from the jury. All counsel and the Judge addressed the jury on the basis that it was open for them to acquit the appellant on the s 61J and s 66C(4) counts yet convict him on the s 66C(3) count. In those circumstances it seems to me that an appellant has a very difficult, if not impossible, task of persuading this Court that it was unreasonable for the jury to convict of an offence that was placed before them as an available alternative if they did not convict on a more serious offence.
A similar situation arose in Boulattouf v R [2007] NSWCCA 102 where an alternative count was left to the jury without any clear instruction as to how they would acquit on the first count but convict on the alternative count. This Court held that in such a situation it was open to the jury to take a merciful approach and convict on the less serious offence in light of the strong subjective case placed before them as to the appellant’s character.
If defence counsel believes that, as a matter of practical reality on the issues raised before the jury, there would be no foundation for the jury to convict on a particular count in the indictment, this should be raised with the judge on an application to have the count withdrawn. But in this case there was a statutory power for the jury to convict on the s 66C(3) count and I am not satisfied that it was not open to them to do so.
In any event, I am unpersuaded by the appellant’s argument that the jury must have found as a fact that the intercourse was consensual. They were told that consent was irrelevant except for the s 61J offence. As I have already noted, a finding of not guilty on that offence meant only that the jury were not satisfied beyond reasonable doubt that the appellant knew she was not consenting. That they should have such a doubt was unsurprising. When they moved from that offence to the offences under s 66C they must have understood that consent was not a relevant issue. They had to form no view about consent or knowledge of lack of consent to determine those charges.
Nor am I persuaded that the jury should have found that the appellant had a reasonable belief as to her age. The jury presumably found that his account generally was not credible and there is no reason why they should have found in his favour on that issue. He had more than a passing knowledge of the complainant. The close familiarity between the two was established in cross-examination of the complainant when she indicated that at one stage they were thinking of forming a relationship. They were clearly close friends and defence counsel was relying on this fact. The appellant had been in the same high school with her. It was well open to a jury to have a doubt about his assertion that he believed she was 16 or that the belief was a reasonable one, when the onus was put erroneously on the appellant.
In my opinion this ground of appeal fails. The Proudman v Dayman defence
In order to understand the competing arguments as to the effect of the repeal of s 77(2) it is necessary to have regard to the history of the provision. The arguments of both parties are substantially based upon competing views as to whether the common law applied to the offences with which the appellant was charged from the date of the repeal of the statutory defence. It seems to have been conceded by the appellant and accepted by the Crown that the common law did not apply to the offences while s 77(2) or its equivalent was in force. That concession is obviously correct because, as will be seen, the statutory defence was completely inconsistent with the common law defence both as to the matters to be proved and the onus of proof.
The common law defence in this regard is the defence of honest and reasonable mistake of fact or, as it is sometimes known in this country, the Proudman v Dayman defence. It is a defence that was recognised in R v Tolson (1889) 23 QBD 168 at 181 and referred to in Bank of New South Wales v Piper [1897] AC 383 at 389-390. It was extensively considered by the High Court in R v Thomas (1937) 59 CLR 279 in relation to an offence of bigamy and where Dixon J reviewed the history and ambit of the defence. The ambit and applicability of the defence was also considered in He Kaw Teh v The Queen (1984) 157 CLR 523.
The defence operates where the statutory offence does not require full mens rea to prove an element of the offence. The defence arises where the offence being considered would otherwise be an offence of strict liability generally or in regard to a particular element of the offence. The appellant did not suggest that the Crown had to prove beyond reasonable doubt that he knew the complainant was under the age of 16 years in order to make out either of the s 66C offences. The appeal was argued on the basis that the offence was at least one of strict liability so far as the element of age of the complainant was concerned.
In Proudman v Dayman Dixon J held that there was a presumption that the defence, there described as a rule, would apply in a case where there was no full mens rea. But his Honour stated: “The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like, the Legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.”
It is unusual to find an offence of strict liability arising under the provisions of the Crimes Act. That Act is generally concerned with criminal offences of some seriousness, most of them indictable offences. Strict liability offences are generally found in offences of a regulatory nature such as under the provisions dealing with the control of motor traffic or public health. However there is at least one category of offence found in the Act where strict liability applies so far as one of the elements of the offence is concerned. These are the offences of dangerous driving or dangerous navigation under sections 52A and 52B. In those offences the common law defence of honest and reasonable mistake of fact applies notwithstanding that there are specific defences provided in sections 52A(8) and 52B(8). The application of the Proudman v Dayman defence to culpable driving, a similar offence to that now found in s 52A, was considered in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572.
In that case, in the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ, the defence is summarised as follows (footnotes omitted): “A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake. In a well-known passage in Proudman v Dayman, Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute……………………..”
This consideration of the Proudman v Dayman defence arose in that case where the prosecution was alleging that the accused drove in a manner dangerous to the public because he fell asleep at the wheel of his vehicle in circumstances where he was so tired that it was objectively dangerous for him to drive. The High Court held that it was open to the accused to raise a defence that he reasonably believed that it was safe for him to drive (at 583).
The defence only applies where the accused had a reasonable belief of the existence of facts that, if they existed, “would make his conduct innocent”. A question arises as to what “innocence” means in the statement of the defence. Does it mean that, if the fact existed, the accused would not have been guilty of the offence charged? Or does it mean that, if the fact existed, the accused would be innocent of any wrong doing at all? In Jiminez, in the passage quoted above, the defence was expressed in two ways: the existence of facts, that if true, would make a defendant’s act innocent, and, the existence of facts which would take his act outside the operation of the statute.
In R v Iannazzone [1983] 1 VR 649 the appellant argued that he was not guilty of murder on the ground that he honestly and reasonably believed that he was involved in a suicide pact and, relying upon a provision of the Victorian Crimes Act, argued that he should be guilty of manslaughter. Brooking J, during the course of rejecting the argument for a number of reasons, stated (at 655): “In the first place, the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would make the defendant's act innocent. The meaning of innocent for this purpose has been the subject of considerable debate, but it is at all events made clear by the judgment of Fullagar, J in Bergin v Stack (1953) 88 CLR 248, at p 262, that a belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed. Williams, ACJ, at p 253, and Taylor, J, at p 277, concurred in the judgment of Fullagar, J, and Webb, J, at pp 253-4, appears to have been of the same opinion as Fullagar, J on the point now under consideration. If the supposed belief in the present case had been true, the applicant would have been guilty of manslaughter; and this circumstance is itself enough to render the mistake doctrine inapplicable.”

It is unnecessary for present purposes to consider this issue further or determine whether, on the basis of the passage in Jiminez quoted above, some limit should be put on the concept of “innocence” for the purpose of the defence; see also State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 722. It seems to me that in the present case at least the belief in the existence of facts should be that which, if true, would remove the accused from the ambit of the sexual assault offences contained in the Crimes Act. It could hardly be a defence to an offence of having intercourse with a child under 16 that the accused believed he was having non-consensual intercourse with a person over the age of 16.
In order for the defence to arise the accused must have formed a positive belief in the fact relied upon so that the accused must actually have attended to the fact: ignorance of, or inadvertence to, a fact are insufficient to give rise to the defence: Von Lieven v Stewart (1990) 21 NSWLR 52 at 66. In SRA v Hunter Water Board Gleeson CJ considered in depth the operation of the defence. His Honour wrote (at 724): “The word “mistake” is, itself, ambiguous. Suppose, for example, that a person permits someone who is in fact unlicensed to drive that person's car. The owner of the car may have a positive belief that the driver is licensed, or, having considered the matter in a general way, may be of the view that there is no particular reason known to the owner why the driver should not be permitted to drive, or might simply not trouble to think about the subject at all. In any of these cases, the owner might well say that he or she was surprised to learn subsequently that the driver was unlicensed. However, it is another thing to say that the owner had made a mistake about the matter. This is not an exhaustive list of the possible states of mind that might exist, but it is sufficient to illustrate the problem. It seems clear enough that, of the three states of mind just described, the first would, in the present context, be accepted as a mistake of fact, and the third would not. Whether the intermediate possibility would also be accepted might depend upon a closer examination of the particular case and a consideration of the legislative purpose in creating the offence.”
It should be noted that the defence only applies to a belief as to fact and does not arise from a mistaken belief about the law; Orstrowski v Palmer [2004] HCA 30; 78 ALJR 957, or a mistaken opinion which is a result of a judgment based upon facts: The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67. In Lavender a belief that “it was safe to proceed” was held not to be a belief of fact but an opinion; see at [59]. However, as has been noted, in Jiminez it was held to be a fact within the ambit of the defence that the driver honestly believed “it was safe to drive”. The Crimes Amendment (Sexual Offences) Act 2003
It has to be said at the outset that I find it remarkable that a section that had existed from time immemorial should be repealed without a clear and uncompromising statement being made, either by the draftsperson or by the Minister responsible for the repeal, as to it’s intended effect. On the face of it a defence to a number of serious criminal offences, carrying substantial sentences of imprisonment as the maximum penalties, was being repealed and yet nothing is expressly stated to indicate any clear understanding by Parliament of the consequence of that repeal. And this in an area of the criminal law which is of continuing concern to the community and, hence, the Parliament. There is probably no part of the Crimes Act that has been subject to more change in recent years than the provisions dealing with sexual assaults against children, much of those changes intended to increase penalties for the offences and to make it easier for children to give evidence and, thereby, easier to secure convictions.
As Priestly JA said in Binskin v Watson (1990) 48 A Crim R 33 in another, but related, context and in the light of the lengthy ancestry of the Proudman v Dayman defence (at 43): “Only if Rip Van Winkle was the draftsman in the present case could he be unaware that the present argument was highly likely to come before a court in some prosecution.”
The subsection was repealed as part of a series of legislative changes to that part of the Crimes Act dealing with sexual assault offences against children effected by the Crimes Amendment (Sexual Offences) Act 2003 (the Amending Act). The Long Title of the Act was: An Act to amend the Crimes Act 1900 to provide for the equal treatment of sexual offences against males and females and to increase the penalties for sexual offences against children; and for other purposes.

In addition to the general offences dealing with sexual assaults against children, before the commencement of the Amending Act, the Crimes Act contained an offence of homosexual intercourse with a child over 10 years but under 18 years; s 78K. There was also an offence of homosexual intercourse by a teacher: s 78O, and an offence of gross indecency: s 78Q. In respect of those offences s 78R provided that consent was no defence. There was no provision in relation to homosexual offences such as was found in s 77(2) providing a defence based upon mistake of age. However in Chard v Wallis (1988) 12 NSWLR 453 Roden J held that the common law defence of reasonable mistake of age applied to an offence of gross indecency. I shall return to this decision later. These provisions were repealed by the Amending Act and not replaced.
Therefore, before the commencement of the Amending Act, a male who sexually assaulted a male under the age 16 could have been charged with an offence under the general child sexual assault provisions or with the relevant homosexual offence. In both cases consent was no defence. There was no statutory defence available, as s 77(2) did not apply where both the complainant and the accused were male. It is inconceivable in my opinion that by preventing the s77(2) defence from applying to offences of child sexual assault where both the complainant and accused were male, that Parliament could have intended that the common law defence would apply instead having regard to the less stringent requirements of the common law defence and the difference in the onus of proof between the two defences. However, the common law defence had been applied at least to an offence of gross indecency. A male who sexually assaults a male over the age of 16 but under the age of 18, could have been charged with the relevant homosexual offence. Consent was no defence but the common law defence of mistake of age may have applied.
In summary the effect of the changes wrought by the Amending Act were: (1) there was no longer any difference in the age of consent between males and females, the age of consent in both cases being 16 years; (2) the same offences applied to a sexual assault of a child under 16 years regardless of the nature of the sexual act or the gender of the victim; (3) consent was no defence to an offence against a child under 16; (4) there was no longer any statutory defence of mistake of age in relation to offences where the victim was between the age of 14 and 16; (5) the penalties for offences of having intercourse with a child between the age of 10 and 16 were increased; and (6) the number of aggravating circumstances relevant to offences of having sexual intercourse with a child over the age of 10 but under the age of 16 were increased.
The question raised on this appeal is the effect of the repeal of s 77(2) in light of the other consequences brought about by the provisions of the Amending Act and in particular the new offences created under s 66C of having intercourse with a child between the age of 14 and 16. The Crown contends that there is no longer any defence based upon mistake of age of the complainant so that the offences in s 66C are offences of absolute liability, so far as the age of the child is concerned. The appellant contends that the offences under s 66C are offences of strict liability so far as the age of the child is concerned, so that the Proudman v Dayman defence applies in respect of an honest and reasonable mistake of age.
Because there is no clear statement of Parliament’s intention as to the effect of the repeal of s 77(2) it is necessary to see whether that intention can be inferred or construed from what was said in relation to the purpose of the Amending Act and the changes it made to the provisions of the Crimes Act relating to sexual assaults against children. Because there is a presumption in favour of mens rea applying to a newly created offence, any inference to the contrary must be clear and compelling. However such an inference can arise from a consideration of the provisions creating the offence in the context of the legislative history of such provisions and in light of the legislative scheme in which the new provisions are to reside.
In B (a minor) v Director of Public Prosecutions [2000] 1 All ER 833 and R v K [2001] 3 All ER 897 the House of Lords considered the relevant principles of statutory construction in relation to specific child sexual assault offences and determined that no inference contrary to the presumption of full mens rea could be discerned from the history and context of the provisions. I shall return to consider those decisions later in this judgment. Historical background
In Lavender at [41] the Justices in the joint judgment pointed out the significance of considering the history of legislation in attempting to construe the intention of parliament and the effect to be given to statutory provisions.
Kirby P in Hickling v Laneyrie (1991) 21 NSWLR 730 at 736 listed a number of aids to the construction of the statute then before the Court, two of which were: “3. Where, as in the present case, the legislation has been amended over time, it is relevant to derive the legislative purpose of the current provision by comparing it with its predecessors. From the course of amendments it may be possible the more readily to derive the policy which lies behind the provision in order to ascertain whether, even a strong presumption is rebutted. The permissibility of examining legislative history for this purpose is not in doubt: see Mathieson v Burton (1971) 124 CLR 1 at 14 per Windeyer J; see also O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 365f per Brennan J; and
The foregoing rule must not permit distortion of the task of ascertaining Parliament's purpose from the language of legislation. It is an aid to the achievement of that purpose. Care must be taken in the use of such tools of construction so as not to stray from the language used by Parliament, whether by the use of legislative history or extrinsic materials such as Second Reading Speeches or antecedent reports. The dangers of doing this have been repeated in many decisions: see, eg, Regional Director of Education,Metropolitan East, Department of Education NSW v International Grammar School Sydney Ltd (1986) 7 NSWLR 302 at 308; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 (HL); Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386; Gibbs v State of New South Wales (1990) 21 NSWLR 416. If the words are plain, the duty of the court is to give effect to them: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.”
It is unnecessary in the present case to delve into history further than the enactment of the Criminal Law Amendment Act 1883 (“the 1883 Act”). The circumstances in which that Act came into being are described in Lavender at [42] where reference is made to the significance of the Criminal Law Manual (“the Manual”), a commentary on the 1883 Act by Sir Alfred Stephen and Alexander Oliver, the parliamentary draftsman. The 1883 Act was in effect a response to six Imperial Statutes passed in 1861, one of which was concerned with “Offences against the Person”. The 1883 Act
Part 1 of the 1883 Act was concerned with offences against the person. It included a series of offences under the heading “Rape and Similar Crimes”. Section 41 dealt with “carnally assaulting or knowing girl under ten”. Section 42 dealt with “carnally knowing girl between 10 and 14”. It was as follows: “Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of fourteen years, shall be liable to penal servitude for ten years - and whosoever assaults with intent unlawfully and carnally to know any such girl, or attempts to have such knowledge, shall be liable to penal servitude for five years - And the consent of the girl shall be no defence to any charge under this or the preceding section.”
The commentary in the Manual states: “In the Bill submitted to Parliament, the words were ‘whosoever carnally knows any girl of or above the age of ten years, and under the age of twelve years,’ &c. The latter age was inserted, because of its being by law that at which a girl could consent to marriage. In the course of the passage of the Bill, the word ‘fourteen’ was substituted for ‘twelve’ - and the words ‘unlawfully and’ were inserted, as they now appear.”

It should be noted that in the Criminal Law Amendment Act 1885 (UK) in relation to an offence of having carnal knowledge with a girl of, or above, the age of thirteen but under the age of 16, there was a proviso that it would be a defence to the section if the accused “had with reasonable cause to believe that the girl was above the age of 16”. The Crimes Act
In 1900 the Crimes Act was passed. “Rape and similar offences” were contained in sections 66 to 78. Section 67 made it an offence to have carnal knowledge of a girl under 10 years. Section 71 provided for the offence of carnal knowledge of a girl of or above the age of 10 years but under the age of 14. Section 76 stated that consent was no defence. Otherwise the provisions were very much those that had been in the 1883 Act. Significantly there was no defence by way of mistake of age as found in the UK legislation at that time.
In 1910 the Crimes Act was amended by the Crimes (Girls’ Protection) Act 1910. The Long Title of this Act was: “An Act to extend to girls of and above the ages of fourteen and sixteen years respectively, and under the ages of sixteen and seventeen years respectively, the protection given to girls under the ages of fourteen and sixteen respectively, by certain provisions of the criminal law relating to offences against the person; to bring stepfathers within certain of those provisions; to enable certain of those offences to be dealt with in the summary way; to exclude girls under the age of eighteen years from brothels; and to amend the Crimes Act, 1900.”
The effect of this Act was to increase the age of consent from 14 to 16 years by amending the carnal knowledge provisions. More significantly a defence was provided in respect of ss 71, 72, and 77 where: “…the girl in question was over the age of 14 years, if it shall be made to appear to the court or jury before whom the charge is brought that the girl was at the time of the offence a common prostitute, or an associate of common prostitutes, or that the person so charged had reasonable cause to believe that she was of or above the age of 16 years.”

In 1981 there was a major reform of sexual offences contained in the Crimes Act but those reforms did not impact upon the provisions dealing with sexual offences against children. In that regard the law, as it was after the 1924 Amending Act, continued to apply.
In 1985 there was a significant reform to the child sexual assault offences effected by the Crimes (Child Assault) Amendment Act 1985. This was the principal Act in a package of cognate legislation relating to evidentiary provisions, a diversionary treatment scheme, and increased reporting obligations of sexual assaults upon children. The changes to the Crimes Act included: restructuring the offences relating to child sexual assault generally; abolishing the concept of carnal knowledge and widening the nature of sexual assault; the offences were made gender neutral; the offences were categorised according to age; and the penalties for the offences were revised. These reforms, however, did not impact upon the offences relating to homosexual intercourse.
As part of these reforms section 77 was redrafted into the form it was at the time of its repeal as follows: (2) It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E (1A), (2) or (2A), 61N, 61O, 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that: (a) the child to whom the charge relates was over the age of 14 years at the time the offence is alleged to have been committed, (b) the child to whom the charge relates consented to the commission of the offence, and (c) the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years.
So at the time of the repeal of s 77(2) the situation was that offences of having sexual intercourse with a child under 14 years were treated as absolute offences, so far as the age of the child was concerned: the Crown did not have to prove that the accused knew of the age of the child and there was no statutory defence as to mistake of age. However, where the offence was having intercourse with a child between the ages of 14 and 16, the Crown did not have to prove that the accused knew the age of the child but there was a statutory defence available but only where: the child was in fact over 14; was apparently consenting; and the accused had a reasonable belief that the child was over the age of 16 years. Such a defence was normally conducted on the basis that the accused had to prove on the balance of probabilities that the child consented and that he had a reasonable belief that the child was over the age of 16 years.
At the time of its repeal the statutory defence under s 77(2) applied to the following offences: s 61L, indecent assault of child under 16; s 61M(1), an aggravated indecent assault with a child under 16; s 61N(1), an act of indecency with a child under the age of 16; 61(O), an aggravated indecent assault with a child under 16 years; 66C, sexual assault of a child between 14 and 16; and 66D, attempted sexual assault with a child between 14 and 16. Although the section referred to offences under ss 61E, 71, 72, 76 and 76A, those offences had by this time been repealed.

In respect of offences dealing exclusively with sexual activity between males, there was at the time of the introduction of the Amending Act the following offences: 78K, homosexual intercourse with male between 10 and 18; 78L, attempt homosexual intercourse with male 10 to 18; 78N, homosexual intercourse by teacher; 78O, attempt homosexual intercourse by teacher; 78Q, act of gross indecency. Section 78G defined “homosexual intercourse” for these offences and 78R provided that consent was no defence. There was no statutory defence.
However since the reform of the child sexual offences in 1986, those offences were gender neutral and offences by a male on a male child under 16 could be, and generally were, prosecuted under those sections.
As has been noted earlier, in 1988 Roden J held in Chard v Wallis that, in relation to the offence under s 78Q, gross indecency, there was a defence arising from a reasonable mistake of age. Before his Honour the Crown argued that the offence was one of absolute liability, so far as the age of the complainant was concerned, basing its submission largely upon R v Prince (1875) LR 2, CCR 154. The appellant argued that the Proudman v Dayman defence applied. In holding for the existence of the defence, Roden J stated at 455: “To those brought up under the Common Law, there is something repugnant about the notion that a person can be guilty of a serious criminal offence by accident. Over the years, that has been reflected in a number of landmark decisions on the concepts of mens rea and the onus and standard of proof. Prominent among them, and each containing a major statement of principle, are R v Tolson (1889) 23 QBD 168; Woolmington v Director of Public Prosecutions [1935] AC 462; “The Australian Line” including Maher v Musson (1934) 52 CLR 100 and Proudman v Dayman (1941) 67 CLR 536; Iannella v French (1968) 119 CLR 84; and more recently Director of Public Prosecutions v Morgan [1976] AC 182, and He Kaw Teh v The Queen (1985) 157 CLR 523.

Roden J, in effect, refused to apply R v Prince. He looked to the intention of the bill relating to the enactment of the most recent homosexual offences and stated (at 459): “The fact that “the principle inherent in the Bill” was the decriminalisation of sexual activity between consenting males, also has significance when assessing the degree of mens rea which is attracted by provisions such as s 78 Q (2). The act which the plaintiff was charged with inciting, was an act of homosexual intercourse. Had it not been for the age of the complainant, that would have been a lawful act, in consequence of the 1984 legislation. If the plaintiff believed that he was dealing with a person over age, and was correct, then nothing he was doing or intending or inciting was, so far as the law is concerned, culpable. His position may be contrasted with that of a person charged with an aggravated assault, where the intent to commit the common assault can provide sufficient mens rea to make him liable for an unintended consequence; or that of a person convicted of sexual intercourse without consent with a person under the age of sixteen, where a mistaken belief as to the age might be of no assistance to him, as the intent to have sexual intercourse without consent provides the necessary mens rea.”
A little later he wrote (at 460): “The true position, I believe, is that the greater the seriousness and criminality of the offence, the greater the need to establish an intention to commit it. On principle, it could be argued that the offence created by s 78 Q (2), especially within the context of the “decriminalisation” of homosexual acts between consenting adults, requires full mens rea, and that a successful prosecution requires proof of knowledge of the complainant's age. The argument was not taken as far as that before me, and I express no opinion on it. In the absence of more direct authority than has been cited, however, I am certainly not prepared to rule that even a reasonably founded mistaken belief as to age cannot exculpate.”
As I have noted, in the raft of amendments made to child sexual assault offences in 1986, s 77(2) was amended to delete references to words with the female gender, such as “girl”, because the child sexual assault offences had been made gender neutral. However, the words “if the person charged and the child to whom the charge relates are not both male” were inserted before the words “and it is made to appear to the court and jury……..”. The apparent consequence of the decision in Chard v Wallis was that, if the accused was charged with an act of gross indecency with a child under 16 under the homosexual offences, a defence arose under Proudman v Dayman. But if he were charged with an offence under the sexual assault provisions, which would cover exactly the same conduct, there was no defence. This was apparently not a matter considered by Roden J. The repeal of s 77(2)
It has already been noted that at the time of the introduction of the Amending Act nothing was explicitly stated to explain what Parliament intended to be the effect of the repeal of s 77(2) so far as proof of the child sexual assault offences, either new or existing, was concerned. However, this is not to suggest that Parliament was not aware that it was repealing an existing defence. The Explanatory Memorandum notes: “The Bill also removes the current statutory defence of a person who has consensual sexual intercourse with a child under 16 years of age if the child was over 14 years of age and appeared to be over 16 years of age……..”
The second reading speech also includes reference to the fact that the defence was being repealed. The Attorney General said, Hansard 7 May 2003 p 374: “In proposing a uniform age of consent in New South Wales the bill employs further strict safeguards to protect children from exploitation by sexual predators. The sexual exploitation of our children is critical conduct of the most heinous and abhorrent kind and must be deplored by the Legislature through the imposition of heavy deterrent penalties. The bill therefore increases penalties for sexual offences upon children under the age of 16 years. The bill eliminates the defence currently available to consensual sexual activity with young people aged between 14 and 16 years, formerly known as carnal knowledge. The Bill removes the expressed statutory defence presently provided in section 77(2) of the Crimes Act that the person charged had reasonable cause to believe, and did in fact believe, that the child was of or above the age of 16 years. As a consequence, it will no longer be possible to argue that a uniform age of consent of 16 years creates effective age of consent of 14 years.”
After debate upon the bill, the Attorney General stated, Hansard, 21 May 2003, p 898: “There can be no rational objection to an equal age of consent provided that adequate safeguards are put in place to protect young people against sexual exploitation.

There seems to be no point in extending this judgment by reference to decisions stressing the fundamental principles in the construction of statutory offences since Proudman v Dayman or either before or after He Kaw Teh. Anything I say about the construction of the provisions creating sexual assault offences in the Crimes Act accepts and attempts to apply these principles.
It is clear that there were new offences created by the Amending Act to replace the repealed s 66C offences and the repealed homosexual offences. It was obviously the intention of the Parliament to finally do away with offences that resulted in discrimination because of the sex of the participants. The appellant argues that common law principles should apply to the construction of the new offences. However, he does not argue that Parliament should be taken as having intended that full mens rea applied to the new offences. It has not been suggested that the prosecution has to prove that the accused knew that the child was under the proscribed age.
The appellant concentrated only on the new s 66C(3) offence in making submissions as to the consequence of the repeal of s 77(2). This is not surprising in light of the fact that this was the offence for which the appellant was convicted. But it seems to me that a consideration of what Parliament intended should be the effect of the repeal of s 77(2) and the creation of the new offences cannot be carried out in a vacuum. That is why I have spent so much of this judgment considering the history of these provisions.
In my opinion it is also necessary to consider what would be the consequences of interpreting the new offences as giving rise to the common law defence, as the appellant suggests, in the context of the other offences in the Crimes Act that remained unchanged by the Amending Act. The new offences were created with the intention that they would be inserted into an existing scheme of provisions dealing generally with sexual assault offences against children. It can be assumed that Parliament intended that a consistent approach should apply across the offence-creating provisions once the amendments came into operation. It should not be overlooked that some of the offences to which s 77(2) applied before its repeal remained in the same form as they did before its repeal. Some of those offences had been present in the Crimes Act in one form or another since at least 1981. It seems to me that one of the legitimate aids in construing the new offences is to have regard to them in the context of the Act as a whole: He Kaw Teh per Gibbs CJ at 529.
Section 61N, an act of indecency with a child under 16, existed in the Act before the repeal of s 77(2) and remained after its repeal in the same form. Yet s 77(2) applied to that offence. What was the effect of the repeal of the statutory defence on that offence? I do not understand that the common law would thereafter apply, in circumstances where it had not previously applied to any of the manifestations of the offence since it was first enacted. Dixon J in Proudman v Dayman referred to the presumption of the existence of the defence “to a statutory offence newly created”. Can it really be contemplated that Parliament intended that, with the repeal of the statutory defence, a less onerous common law defence would apply? The consequence of the application of the common law defence would be to cast the onus onto the prosecution to prove that the accused had no reasonable belief that the complainant was over the age of 16 once that defence was raised. But under the repealed statutory defence the accused effectively had the onus of proving that belief as well as the consent of the complainant. A similar situation pertains to ss 61(O)(1) and (2).
There were two offences to which the statutory defence applied but only where the complainant was a child under the age of 16 years. These were sections 61L and 61M(1). Those sections were unchanged by the Amending Act. What was the effect of the repeal of s 77(2) on those offences? There is no element of those offences that involves the age of the complainant. However, if the complainant is under the age of 16, consent is not a defence: s 77(1). Does a Proudman v Dayman defence arise, where the accused believes that the complainant is aged 16 and consenting, even though such a defence has never applied to those offences in the past? In my opinion it cannot. I do not understand that the common law defence can be activated simply as a result of some legislative amendment not touching the actual elements of the offence so as to create a new offence.
It follows that in my opinion the repeal of s 77(2) did not activate the common law defence so that it applied to offences otherwise unaffected by the provisions of the Amending Act. Therefore, to find that the common law defence now arises in respect of the newly created offences in s 66C would result in a significant inconsistency between those offences and the offences that remained unchanged in the Act after the repeal of s 77(2). Yet frequently different types of offences are alleged involving the same complainant in the one indictment either as additional charges or alternative charges. It would not be at all surprising to find an offence under s 66C(3) on the same indictment as an offence under s 61N arising from the same facts. It would be confusing, to say the least, for defences to come and go depending upon what offence the jury was considering, notwithstanding that the offences all arose in the very same factual matrix and that the accused’s state of mind was identical for each offence. I find it impossible to see how such a situation could be consistent with any legitimate policy in relation to the protection of children under the age of consent.
But even if the new offences are considered in isolation, in my opinion it can only be concluded that Parliament did not intend that there should be a defence of mistaken belief of age. Take for example the new s 66C(1) offence, having sexual intercourse with a child between 10 and 14. There can be no doubt that ever since at least 1921 the offence of having sexual intercourse with a child under the age of 14 was one of absolute liability, so far as the age of the child was concerned. Mistake of age has never been a defence. But does the common law apply to the new offence so that a reasonable belief that the child was over 16 would operate? True it is that a Proudman v Dayman defence does not apply merely because the accused thought that the child was over 14. Such a belief would not make the accused’s conduct innocent because he would be committing an offence under s 66C(3). But what if he honestly believed the child was aged over 16? I am not prepared to say that such a defence is so unlikely that it is of only theoretical significance. In any event, merely because such a defence might be improbable, it does not follow that it has no application. Clearly Parliament could not have intended that there be such a defence available to the new offence. Such a result would be completely inconsistent with the purpose of the Amending Act and the history of such an offence.
But anomalies arise even when the offence under s 66C(3), the offence of which the appellant was convicted, is considered with the application of the common law defence. In order for the common law defence to arise, the accused must reasonably believe in facts that, if true, would cause his conduct to fall outside the statute. Although the concentration in the submissions has been on that part of the defence based upon a reasonable mistake of age, that fact alone would not avail the accused. This is because the accused would still be exposed to liability for an offence of sexual assault under s 61I unless he reasonably believed that the complainant was consenting. He cannot escape liability under s 66C(3) if he knew that he was having non-consensual intercourse but with a person he thought was over the age of 16.
Therefore the common law defence would only apply if the accused reasonably believed that he was having consensual sexual intercourse with a person of or over the age of 16. If he raised that defence, the Crown would be required to disprove that he had such a belief. And yet consent is not an element of the offence: s 77(1). In effect the existence of such a defence would require the Crown to prove a sexual assault offence under s 61I, that is non-consensual intercourse. But under the statutory defence that was repealed the accused had to show that the complainant was in fact consenting. His belief about that matter was irrelevant. If the complainant was not in fact consenting, it did not matter whether he reasonably believed that she was.
To read this offence as involving a common law defence is to put at nothing the history of the legislation or the intention of Parliament in enacting the new offences and repealing the defence. Since 1911 the accused has had to prove that the child was consenting or no defence arose notwithstanding his belief in the age of the child. It seems to me that the only reasonable conclusion is that Parliament intended that there should be no defence applicable to the new offences created by the Amending Act. Such a conclusion is consistent with the history of the offences, the scheme of the existing offences after the repeal of the statutory offence and the purpose of the Amending Act.
The appellant relies strongly upon the asserted inconsistencies between the homosexual offences and the general offences for the existence of the common law defence. Before the Amending Act there was no defence under s 77(2) where the accused and the complainant were both male. Yet there was a defence, according to Chard v Wallis, in respect of the homosexual offence of act of gross indecency. The appellant argues that such a defence would have also applied to the other homosexual offences before their repeal. Whether it did or not has never been considered.
It should be said that I doubt that Chard v Wallis was correctly decided in light of the history of homosexual offences where no defence was ever enacted despite a statutory defence existing from a very early stage in the history of the legislation for offences against female children. Although the decision was cited with approval in Jiminez, that was only in reference to a statement as to the onus of proof; see at 582 footnote 35. As I have noted already, at the time of that decision the operation of s 77(2) was excluded for offences where both the victim and offender were males. That was a relatively recent amendment, given the history of the provisions, when Chard v Wallis was decided. With respect, I find it difficult to see why the existence of that provision did not indicate a clear contrary intention on the part of Parliament that the common law defence should not apply to homosexual offences. However I accept that the decision has stood for some years and Parliament did nothing to overcome it.
It is argued by the appellant that, as there was, at the time of the repeal of s 77(2), a defence based upon honest and reasonable mistake of age for male homosexual offences, that defence would carry over to the new offence where both the victim and the complainant were male. That would then give rise to an unacceptable inconsistency, so it is argued, with offences where the participants were not both male. The inconsistency should be cured, the argument runs, by applying the same defence to the new offence regardless of the gender of the participants. I do not find that argument compelling.
Even if the common law defence did exist for offences of homosexual intercourse, it is unlikely in the extreme that it would practically have arisen in relation to complainants who were under the age of 16. The age of consent for those offences was 18 so that the accused would have to have a reasonable belief that the complainant was over that age. Although I accept, as I have done with females under the age of 14, that such a defence might arise, it does not seem to me that to deny the defence to cases involving children under 16 is so manifest of injustice, that it should dictate the whole policy to the construction of s 66C(3). The stronger policy consideration is that such a defence should not apply where the male was under 14.
In any event, it seems clear that, since the amendments in 1986 that made child sexual assault offences gender neutral, male homosexual offences against children under 16 have been almost invariably prosecuted under the child sexual assault offences and not under the homosexual offences. The statistics kept by the Judicial Commission show that between October 1999 and September 2006 there were only 49 convictions under s 78K of having homosexual intercourse with a person between 10 and 18 and only two cases of attempting that offence. In the same period there were only three convictions of gross indecency with a male under s 78Q, the offence with which Roden J was concerned.
An argument that has led at least one District Court Judge to favour the existence of the common law defence to the offence under s 66C has been to inquire whether Parliament intended to abolish the defence and then to find that it did not. In my view, with respect, that is asking the wrong question. It seems plain from the history of the legislation that the common law defence never existed for any of the child sexual assault offences and certainly not since 1910. It is impossible to conceive that the common law defence existed notwithstanding the statutory defence provided, when that defence was considerably more restricted than the common law defence and effectively placed the onus upon the accused to prove the facts that would bring him outside the statute. Therefore it is not appropriate, in my opinion, to inquire whether, in repealing the statutory defence, Parliament also intended that the common law defence should not operate. Parliament should be taken as having repealed the statutory defence in the belief that no other defence applied or would apply.
Insofar as s 31(1) of the Interpretation Act might be relevant to existing offences under the Act, there was in my view, no existing common law defence that survived the repeal of the statutory defence. It is not correct, with respect, to refer, as one District Court Judge has done, to the “’firmly entrenched’ common law defence”. It is the principle of statutory construction presuming the application of the common law defence that is entrenched. There was no common law defence lurking, as it were, to arise when unshackled by the legislature’s repeal of the statutory defence.
There has been a submission, based on a principle of statutory construction in relation to repealed legislation, that, once s 77(2) was repealed, it was as if it never existed and, therefore, the common law applied to the offences existing after the repeal. Whether or not such a principle can apply in general, it does not apply where the history of the legislation suggests otherwise: Hickling v Laneyrie, at 738. Here the common law defence never applied to sexual assault offences against children at least since 1911. The limited defence introduced in that year has existed in one form or another throughout the history of the Act for almost 100 years until s 77(2) was repealed. And yet it is argued that a more liberal defence has now arisen than the one that had been provided by Parliament and intentionally taken away. In my opinion that argument cannot be accepted. I would not construe any of the sexual assault offences as giving rise to the Proudman v Dayman defence.
The strongest argument to support the submission that Parliament should not be taken as having intended that the common law defence would not apply to an offence under s 66C(3) is what the appellant referred to as “the absurdly Draconian result” of the possibility of a person being convicted of such an offence who genuinely and reasonably mistakes the age of a consenting complainant. I feel the repugnance that Roden J expressed and that is found throughout the judgments in He Kaw Teh to a serious offence being committed by accident. The immediate reaction to the Crown submission is surprise, if not shock, at the suggestion that the Crimes Act can have what are in effect absolute liability offences carrying substantial gaol penalties. Of course that was always so with a child under 14 but there can be no denying that as the child becomes older the likelihood of an innocent mistake becomes more likely. I also accept that it is notoriously difficult to tell the age of person with such accuracy as an absolute offence would require, and it is not uncommon for children approaching the age of 16 to disguise or lie about their age in order to be treated more favourably as an adult.
The Crown submits that the fact of a person honestly mistaking the age of the child without any fault on his or her part can be taken into account on sentence even to the extent that, where there is no moral blame on the part of the offender, the charge could be dismissed without conviction: see Reg v Karaiskakis (1957) 74 WN (NSW) 457. But the offence is still an objectively serious one with a potential penalty of imprisonment for 10 years. The appellant points to the stigma and consequences that could follow a conviction regardless of the penalty imposed.
This is a powerful argument but I am compelled largely by the history of the provisions, the manifest inconsistencies that would arise if the common law defence applied to the offences under s 66C, and the clear policy of Parliament, to find that there was a legislative intent that such a defence would not apply to the new offences, or otherwise, once s 77(2) was repealed. I come to this conclusion bearing in mind the significance of finding against the presumption of mens rea for serious offences. As I have already noted, it is clear that the repeal of the statutory defence was not accidental but was done with a full awareness that a defence that had existed was no longer going to exist and that as a consequence it must make it more difficult for an accused to escape conviction. I cannot believe that Parliament intended the consequence that the repeal of the statutory defence would make it more difficult to secure a conviction. Admittedly the Parliament appears to have been concerned with sexual predators but its intention was obviously to toughen child sexual assault offences generally, both so far as conviction and penalty was concerned, as a consequence of effectively lowering the age of consent for males.
In Proudman v Dayman Dixon J indicated that, in determining whether the defence arose, the court is entitled to consider the subject matter of the legislation. In my opinion the purposive approach in construing offences of child sexual assault supports a finding that Parliament intended that no defence would apply in relation to sexual offences with children under 16 years. But I accept that of itself this consideration would not be sufficient to find in favour of absolute liability.
In the Attorney General’s second reading speech he said: “The bill rationalises the age of consent in New South Wales to 16 years of age for all persons irrespective of gender or sexual orientation. The lower age limit is absolute – no specific statutory defence is provided for.”

Before concluding this part of the judgment some reference should be made to the relatively recent decisions of the House of Lords concerned with the interpretation of child sexual offences to which I made reference earlier. In B v DPP the Court was concerned with the construction of an offence of inciting a child under the age of 14 to commit an act of gross indecency. A 15 year old boy had repeatedly asked a 13 year old girl to perform oral sex on him. It was accepted that the boy honestly believed the child was over 14 years of age. It was held that Parliament had not expressly or sufficiently clearly by necessary implication shown an intention that full mens rea should not apply. Therefore, the appellant should have been acquitted of the offence unless the prosecution proved that he knew that the child was under the age of 14 years.
In that case the prosecution had argued that the offence was one of absolute liability so far as the age of the child was concerned relying upon the statutory context in light of decisions denying the common law defence to offences of sexual assault such as R v Prince, R v Forde [1923] 2 KB 400 and R v Maughan (1934) 24 Cr App R 130. That argument was rejected. Lord Nicholls of Birkenhead stated (at 841): “This is a formidable argument, but I cannot accept it. I leave on one side Mr O'Connor QC's sustained criticisms of the reasoning in R v Prince and R v Maughan. Where the Crown's argument breaks down is that the motley collection of offences, of diverse origins, gathered into the 1956 Act displays no satisfactorily clear or coherent pattern. If the interpretation of s 1 of the 1960 Act is to be gleaned from the contents of another statute, that other statute must give compelling guidance. The 1956 Act as a whole falls short of this standard. So do the two sections, ss 14 and 15, which were the genesis of s 1 of the 1960 Act.”
Similarly Lord Steyn could not find an intention that Parliament intended that there be no mens rea in relation to the offence under consideration from the context of other child sexual assault offences having regard to the history of the offences and their differing elements: see at 847 to 851. Lord Hutton also was unable to find, as a necessary implication from the context of the statutory scheme, that Parliament intended the new offence to be one of absolute liability. One of the reasons for this decision was that the various provisions “have not been drafted to give effect to a consistent scheme but are a collection of diverse provisions derived from a variety of sources……….”: at 855.
In R v K the House of Lords had cause to consider the mental element of an offence of indecently assaulting a girl under the age of 16 years under s 14 of the same Act considered in B v DPP. The question arose as to whether there was a defence based upon a belief that the girl, who was aged 14, was consenting and was over the age of 16. Again the members of the Court considered the context of the legislative provisions to determine whether any intention on the part of Parliament that the offence should be one where no mens rea applied in relation to the age of the child could be clearly ascertained.
Lord Bingham of Cornhill referred to the significance of the fact that the provisions of the Act under consideration were “not part of a single, cohesive legislative scheme” in determining that no such intention of Parliament could be ascertained: at [4] and [9]. The other Lords who agreed with Lord Bingham, likewise failed to find a coherent scheme in the legislation such that the intention of Parliament to displace the presumption of full mens rea could not be found.
It is clear in my opinion that the reasoning expressed by their Lordships in finding against the implication that Parliament intended to create an offence of absolute liability can be distinguished when considering the legislative context of the provisions under the Amending Act both before and after its commencement. The descriptions given to the provisions under consideration in those decisions could not be applied to the legislative scheme relating to child sexual assault in the Crimes Act at least since 1986. In the present case the history and context of the legislation provides a clear and unambiguous inference that Parliament intended that there be no defence available to the newly created offences by way of mistake of age.
In my opinion there is no common law defence based upon mistake of age for an offence under s 66C(3) or otherwise in child sexual assault offences. Did the defence apply in any event?
The Crown has argued that, even were the Proudman v Dayman defence to apply to s 66C(3), it did not apply on the facts in the present case. I have already noted that the defence is not made out by ignorance or inadvertence of a fact. There must be an advertence to a positive finding made by the appellant about the relevant fact. The Crown’s contention is that the appellant could not assert that he did not have intercourse with the complainant yet also assert that, if he did, he was mistaken as to her age and the fact that she was not consenting. The Crown submitted that a “contingent defence” would be “offensive to basic principle”. That submission must be rejected. It would be no more offensive than a judge being required to leave the issue of self defence to the jury even though the accused was raising an alibi for the time of the offence: see Pemble
It cannot be doubted that, even if an accused does not give evidence, a fact can be proved in the Crown case. For example, in the appellant’s trial the assertion that he believed the complainant was over the age of 16 years arose in the record of interview tendered by the Crown. But it could arise in other ways, for example by a witness giving evidence of what the appellant had been told about the complainant’s age or what he had said about it at some relevant point of time. It is not unusual for a jury to infer a state of mind of an accused, such as a belief that an object was stolen on a charge of receiving, notwithstanding that there was no direct evidence of that belief and, even if the accused was denying being in possession of the object. It seems to me that whether there is evidence to raise the defence will depend upon the facts of the particular case. Generally a judge must leave a defence to the jury if there is evidence upon which a jury could reasonably find the defence established. That is so for other “defences” where the ultimate onus is upon the Crown. It arises in cases of self-defence and provocation and would arise in respect of a common law defence.
However having made that observation in answer to the Crown’s contention, it is unnecessary to go on to determine whether there was evidence to support the common law defence in the present case.
In my opinion the appeal against conviction should be dismissed. Sentence
It was accepted by the Crown that the Judge had failed to take into account the provisions of the Children (Criminal Proceedings) Act when sentencing the appellant. Unfortunately the Judge seems to have given no consideration at all to the fact that the appellant was a child at the time of the commission of the offence. Therefore, he did not consider whether the appellant should be dealt with at law or in accordance with the provisions of Division 4 of Part 3 of that Act, a fundamental issue where an offence is not “a serious children’s indictable offence” as this offence was not. Nor did he apparently take into account s 6 or any other provision of the Act relevant to sentencing an offender who was under the age of 18 at the time of the offence. Most significantly he failed to obtain a background report in accordance with s 25 of the Act. The sentence was invalid: R v Hoang [2003] NSWCCA 237.
It is regrettable that neither counsel brought this to the Judge’s attention. In particular the Crown bears the obligation of ensuring that a Judge is aware of the jurisdiction that is being exercised. It was a serious failure of the Crown’s duty to the court that it permitted the Judge to sentence without bringing his attention to the relevant legislation.
There is no option but to return the matter to the District Court for further determination.
I propose that the appeal against conviction be dismissed but the application for leave to appeal against sentence be granted, the appeal allowed and the sentence quashed. The matter is remitted to the District Court.
PRICE J: I agree with Howie J. **********

CTM v R [2007] NSWCCA 131

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