R v Deblasis & Deblasis [2007] VSCA 297

13 The Court grants to each appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998 and directs that there be included in that certificate any additional costs that the appellant will pay, or will be ordered to pay, as a consequence of the order for a new trial. The application for leave to appeal against conviction in each case is allowed.

**1 The two accused are each charged with a number of counts of sexual penetration of a child under the age of 16. The offence arises under sub-s (1) of s 45 of the Crimes Act. Subsection (4)(a) provides that consent is not a defence to a charge under sub-s (1) unless at the time of the alleged offence the child was aged 10 or older and the accused believed on reasonable grounds that the child was aged 16 or older. In other words, consent is a defence if the child is 10 years or older, and the accused believed on reasonable grounds that the child was 16 or older.

2 Prior to the opening of the case and the calling of evidence, counsel sought from me a ruling with regard to the onus of proof concerning the relevant matters in sub-s (4). Did the accused bear the onus to prove those matters, or is the onus on the prosecution to prove those matters, including that the accused did not have a belief on reasonable grounds that the complainants were not 16 or older.

3 On the afternoon of Thursday, and the morning of Friday of last week I heard submissions from Mr Slim for the prosecution, and Mr McGowan and Mr Beale for the defence. I expressed the terms of my ruling by saying that I was persuaded by the argument of Mr Beale and that I would give fuller and, hopefully, cogent reasons this morning.

4 In the decision of the Court of Appeal in Douglas [1985] VicRp 70; [1985] VR 721 dealing with the then s 48 of the Crimes Act and sub-ss (1) and (4) which were in the same terms as sub-ss (1) and (4) of s 45, O'Bryan J with whom Starke J and Nathan J agreed, held that the onus of proof of the defence of belief about age lies upon the accused.

5 Mr Beale submitted that the foundation of the 1985 decision in Douglas was an understanding of the law that has since changed, or at least developed. It was by this submission that I was persuaded.

6 In Douglas the Court held that "quite clearly the words used by the legislature in sub-s (4) do not expressly impose an onus upon the accused person." However, the Court ruled that a statutory exception to the common law rule that the prosecution must prove beyond reasonable doubt all the elements of the crime was introduced "by necessary implication".

7 There does not appear to be anything in the terms of sub-s (4) that give rise to a necessary implication that a shift from the basic principle of onus of proof was intended. Although Mr Slim submitted that the implication arose from the words used, I cannot, myself, see support for that submission. The words of the sub-section do not imply a reversal of onus.

8 It appears from the judgment that the Court considered that the necessary implication arose from two matters. First, that it was the law that:**

"a defence to a criminal charge based on an honest and reasonable belief has been held to impose the ultimate burden of proof upon the defendant" (at p 723).

"requires one to take into account that the state of mind and facts required to be proved under it will ordinarily be peculiarly within the knowledge of the accused person", (at 724).

**9 It has long been the situation that at common law an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has been held to be a good defence. See R v Tolson (1889) QBD 168 at 181 per Cave J.

10 In Proudman v Dayman (1941) 67 CLR at 541 Dixon J said:**

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant, and he must make it appear that he had reasonable grounds for believing in the existence of factors which, if true, would take his act outside the operation of the enactment, and that on those grounds he did so believe. The burden possibly may not finally rest upon him in satisfying the tribunal in cases of doubt."

11 In He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 534-535 Gibbs CJ observed:

"In Proudman v Dayman Dixon J may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal."

"It has now become more generally recognised, consistently with principle, that provided that there is evidence which raises the question, a jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake. It is in my opinion the correct view."

"Since Woolmington v The Director of Public Prosecutions it has come to be recognised that the prosecution bears the ultimate onus of negativing defences under the Codes. In The Bank of New South Wales v Piper the absence of mens rea was said to consist in the existence of the exculpating belief. Conversely, the absence of the exculpating belief should be regarded as a form of mens rea. It is no more appropriate for the common law than it is for the Codes to regard the defence of an honest and reasonable but mistaken belief merely as an excuse for committing an offence that is fully constituted by its external elements. In principle the absence of such a belief must also be treated as a form of mens rea at common law and an element of the offence which the Crown must prove. The golden thread of which Viscount Sankey L.C. spoke in Wollmington has been woven through the material of all criminal offences."

12 Brennan J quoted with approval the following statement principle by Bray CJ in Mayer v Marchant (1973) 5 SASR 567 at 570:

"The implications of Woolmington's Case have only gradually been recognised, not on occasions without disquiet at their width. Once they are, it must, in my view, be accepted that the ultimate onus is always on the Crown except in the case of insanity or where the onus is shifted by statute, and it does not matter whether the offences the creature of common law, or its statute."

**13 It follows from the statements of principle in He Kaw Teh that insofar as it was earlier understood, as it appears to have been understood in Douglas, that the burden of proof of the defence of honest and reasonable belief was with the accused, that understanding is no longer to be considered to be correct. The absence of a mistaken belief on reasonable grounds must be treated as an element of the offence which the prosecution must prove.

14 This was confirmed in a later decision of the High Court in Zecevic [1987] HCA 26; (1987) 162 CLR 645. In a joint judgment Wilson, Dawson and Toohey JJ said at 658-659:**

"After a period of some uncertainty it has been established in He Kaw Teh that if the question of honest and reasonable mistake arises the ultimate burden rests upon the prosecution to prove the absence of an exculpatory belief."

**15 Mr Slim submitted that the situation where a defence is provide [sic] by statute, as in subsection (4), can be distinguished from the situation where a state of mind, including an absence of an honest and reasonable mistake at common law is an element of the offence. However I agree with Mr Beale that there is no sound basis for making a distinction between a statutory defence of mistaken belief and the common law defence of mistaken belief. Brennan J considered there was no such distinction, and O'Bryan J in Douglas acknowledged there to be, "little or no distinction between the principal in Bonnor's Case in relation to the defence of mistake, and the statutory defence introduced by s 48 sub-s (4)", (see p 725).

16 There are also reasons to doubt the soundness of the other reason given in Douglas for the implication of a shift in the onus of proof when it was said that sub-s (4) required proof of a state of mind and facts peculiarly within the knowledge of the accused person.

17 Sub-section (4) paragraph (a), which is the relevant paragraph in the present case provides a defence which requires proof of four matters. First, consent by the child to the act of sexual penetration. Second, the child was aged ten or older. Third, the accused believed that the child was aged 16 or older, and fourth, the belief was based on reasonable grounds. It is the third of those matters, the state of mind of the accused, and perhaps the fourth, which the Court in Douglas considered peculiarly within the knowledge of the accused. The decision does not refer specifically to the onus of proof of the other matters.

18 However, as her Honour Judge King observed, in a decision on Matthews delivered on 13 November 2000, there are [sic] number of offences where the prosecution bears the onus of proving the state of mind of the accused, something which might be said to be peculiarly within the knowledge of the accused. Rape, theft and illegal importation of narcotic goods are some examples.

19 I note that in a ruling given on 12 December 1995 by Judge Hassett in the case of Francis his Honour said, "It is, I think, common ground, and certainly in my view it is clear, that if consent is an offence, then the onus would be on the Crown to negate consent." Nevertheless he considered himself bound by Douglas to rule that the accused had the onus to prove a belief on reasonable grounds that the child was 16 or older. My attention has also been drawn to a ruling by another Judge of this court, Judge Dyett on 17 February 1994 in a case of Gane, contrary to that of Judge Hassett. Judge Dyett proposed, "To direct the jury that the onus of proof is on the Crown in respect of each of these charges to prove the absence of an honest and reasonable belief by the accused that the girl was 16 years of [sic] over." In that case it had been conceded by the prosecution that the burden of proof and lack of consent was on the prosecution.

14 I propose to direct the jury that if there is an evidentiary basis for a defence of consent the prosecution bears the onus to prove beyond reasonable doubt that the complainants did not consent to the acts of sexual penetration, and the absence of the belief on reasonable grounds by the accused that the complainants were 16 years or older.**

IN THE MATTER OF PAUL ANDREW MATHEWS (13 NOVEMBER 2000)

**1 In this matter, application has been made by Mr Mullaly, counsel for the accused, for severance of Counts 8, 14, 20 and 26 from the other counts on the presentment. Those 4 counts are laid pursuant to Section 5 of the Prostitution Control Act 1994 and arise out of the same factual material that comprises each of the other sets of charges. The other counts, being 10 counts of indecent act with a child under 16 and 12 counts of taking part in an act of sexual penetration with a child under the age of 16, are all laid pursuant to the Crimes Act 1958.

2 Section 5 of the Prostitution Control Act 1994 states**

(1) A person must not cause or induce a child to take part in an act of prostitution, whether as the prostitute or as the client or in any other capacity, or to continue to take part in such acts.

(2) An offence against sub-section (1) is an indictable offence

(3) In a proceeding for an offence against sub-section (1) -

(a) it is not necessary for the prosecution to prove that the accused knew that the person concerned was a child; but

(b) it is a defence to the charge for the accused to prove that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed that the person concerned was aged 18 years or more.

**3 Child is defined in section 3 as "means a person under the age of 18 years."

4 Thus it is clear immediately that the definition of a child varies in respect of the offences pursuant to the Prostitution Control Act 1994 and those pursuant to the Crimes Act 1958 for which the relevant sections indicate that a child for these purposes is a person under the age of 16 years.

5 A further complication is apparent in that Parliament has removed in clear and unambiguous language the mens rea element of the offence in Section 5 of the Prostitution Control Act 1994 (section 5(3)(a)) and has made it an offence of strict liability which then permits the accused to prove on the balance of probabilities that he had taken all reasonable steps to ascertain the age of the child and that he believed on reasonable grounds that the child was over 18 years (Section 5(3)(b)).

6 Mr Mullaly has submitted that the offences pursuant to section 46 and 47 of the Crimes Act 1958 carry a mens rea element and are not absolute or strict liability offences, and the accused does not carry any burden of proving on the balance of probabilities that he had an honest and reasonable though mistaken belief that the child concerned was over 16 years of age.

7 Mr Johns, on behalf of the prosecution submits that this is an absolute liability offence and the accused bears the onus of proving, on the balance of probabilities, that he held an honest and reasonable belief that the child was aged over 16 years, and that I am bound to follow the decision of the Court of Criminal Appeal in R v Douglas [1985] VicRp 70; [1985] VR 721.

Crimes Act 1958

S 46 Sexual Penetration of a child aged between 10 and 16

(1) A person must not take part in an act of sexual penetration with a child aged between 10 and 16 to whom he or she is not married.

Penalty: Level 4 imprisonment (15 years maximum) if the child was, at the time of the offence, under the care, supervision or authority of the defendant; Level 5 imprisonment (10 years maximum) in any other case.

(2) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence -

(a) the accused believed on reasonable grounds that the child was aged 16 or older; or

(b) the accused was not more than 2 years older than the child; or

(c) the accused believed on reasonable grounds that he or she was married to the child.

Section 47 is in identical in [sic] terms for these purposes.

9 These sections were substituted in the Crimes Act 1958, replacing the previous sections, which were the sections considered by the Court of Appeal in Douglas, by amending Act Number 8 of 1991, being the Crimes (Sexual Offences) Act 1991. The sections considered by the Court of Appeal in Douglas were introduced by Act 9509 s 5, the Crimes (Sexual Offences) Act, in 1980. In his second reading speech on the subject of offences against young persons, the then Attorney General, the Honourable Haddon Storey stated, after referring to the two sections then under consideration,

"It is a defence to these two sections that the accused believes on reasonable grounds that the other person was over the age of sixteen years, or that the accused was not more than two years older than the other person." (Victorian Parliamentary Debates Session 1980-81 Vol. 354 page 2874).

10 The wording that was used to facilitate this was in the following terms;

(4) The consent of a person with or upon whom an offence against this section is alleged to have been committed is no defence to a charge under this section unless at the time the offence is alleged to have been committed -

(a) the accused believed on reasonable grounds that the person was of or above the age of sixteen years; or

(b) the accused was not more than two years older than the person

(5) It is a defence to a charge under this section if, at the time the offence is alleged to have been committed, the accused believed on reasonable grounds that he was married to the person with or upon whom the offence is alleged to have been committed.

**11 Thus when you examine the second reading speech there is no clear and unequivocal indication that the onus of proof in relation to the belief has been placed upon the accused.

12 The starting point in examining what situation prevails in Victoria pursuant to this legislation must be an examination of the decision of the Court of Appeal in R v Douglas (supra). That was a decision of the Full Court comprising Starke, O'Bryan and Nathan JJ. In that case the Court held that a defence to a criminal charge based upon "an honest and reasonable belief" had been held to impose the ultimate burden of proof upon the defendant and relied upon Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at pp 144-5, Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248 at p 261 and R v Bonnor [1957] VicRp 33; [1957] VR 227 as authority for that proposition. In Bergin v Stack in the leading judgment of Fullager J at page 261, his Honour stated:**

"For, although today, in the case of such statutory offences as that created by s 161, any presumption that guilty knowledge is an element in the offence must be taken to be at best a very weak presumption, it seems generally to be held, in the absence of express provision or clear implication to the contrary that an affirmative answer is made to a charge of such an offence if the defendant proves that he honestly and reasonably believed in the existence of facts which would make his act innocent. In Proudman and Dayman Dixon observed that it is one thing to deny that a necessary ingredient of the offence is positive knowledge, and quite another to say that an honest belief founded on reasonable grounds cannot exculpate."

**13 In R v Bonnor, a decision of the Full Court comprising five Justices, the decision was one in which the majority comprised three Justices, and there were two dissentients. The majority in this case was Gavan Duffy, O'Bryan and Herring JJ. Those in dissent were Barry and Sholl JJ to whose judgments I will also later refer.

14 Gavan Duffy J at page 230 after citing Proudman v Dayman states that Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136**

"goes far to show that the doubt of where the ultimate burden of proof lay expressed by Dixon J in Proudman v Dayman had been resolved by placing the ultimate burden of proof upon the shoulders of the defendant."

"I am of the opinion that the cases I have just referred to are authority that where the defence of belief on reasonable grounds is relied on, the burden of establishing it is on the accused; not of course, the burden of proof beyond reasonable doubt, but proof on the balance of probabilities".

15 O'Bryan J relied upon similar authority when dealing with this issue and said at page 244:

"Where an essential ingredient in a crime is knowledge or wilfulness, mistake may avail simply to negative knowledge or intent to do the prohibited act, but in the case of statutory offences which do not require proof that the accused did the prohibited act knowingly or wilfully, mistake may be a defence. See Proudman v Dayman.

In my opinion in the latter case it is for the accused to prove his mistake if he is to exculpate himself from the penal consequences of conduct which would otherwise be an offence. This appears most clearly from two recent decisions of the High Court."

**16 His Honour then went on to refer to those decisions and analyse their content. Those decisions were Bergin v Stack (supra) and Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136.

17 In the dissenting judgment of Sholl J, in almost prophetic words considering that the case of R v He Kaw Teh had not yet been determined, he made it clear that in his view the onus of disproving honest and reasonable mistake lay with the Crown. At page 267 he stated:**

"It appears to me, further that even in the case of a statutory exception, the effect of the authorities ought now to be held that (save where there is a statutory reversal of persuasive onus as by s 214 of our Justices Act) the accused ought to have the benefit of any reasonable doubt as to its application. That is to say, although an express statutory provision placing the persuasive onus of establishing an exception on the defendant must still be observed, the same is not true of the old common law principle. Where the onus is not on the prosecution to negative the exception in the first instance, ie where there is a true exception or excuse, it is better now to treat the statute, unless it plainly appears to reverse the persuasive onus, as dealing with the evidential onus only. In other words, if the accused is to have the benefit of a reasonable doubt as to his guilt, either in relation to his intent or in relation to the facts, or both (such as may be raised by an attempt on his part to show self defence or provocation, or an attempt on the part of the prosecution to rely on his possession of recently stolen goods), or in relation to his intent alone (such as may be raised as the result of an attempt by him to show reasonable mistake of fact) he ought to have the benefit of similar doubts raised in an attempt by him to show the application of a true statutory exception, unless the statute clearly places on him the risk of non persuasion of the tribunal."

18 As stated earlier, the Court in Douglas relied heavily upon the above cases referred to as can be seen by the passage of O'Bryan J at page 723 line 45 where he states

"There is little or no distinction to be found between the principle applied in Bonnor's case in relation to the defence of mistake and the statutory defence introduced by s48(4).

19 It is clear from the lines that follow that the other consideration that the Court examined was whether this was peculiarly within the knowledge of the accused.

"The offence defined by s 48(1) contains several necessary ingredients both positive and negative which the prosecution must prove before guilt is established. After defining the offence the legislature asserts in sub-s (4) that consent of the victim is no defence unless at the time a certain state of mind and/or certain state of fact existed. The state of mind of the accused at a particular time is peculiarly within his own knowledge. The age of the accused is a fact which may also lie peculiarly within his own knowledge. There is authority that where an accused person relies upon a defence peculiarly within his own knowledge, then the burden of establishing that defence rests upon him. In a recent ruling during the trial of an accused person for murder Kaye J refers to the relevant authorities R v Sciretta [1977] VicRp 15; [1977] VR 139 at 140-1.

The proper construction of s 48(4) requires one to take into account that the state of mind and facts required to be proved under it will ordinarily be peculiarly within the knowledge of the accused person.

If all the elements of the offence created by sub-s (1) are proved, in order to avoid a conviction an accused person must rely upon sub-s (4). It follows quite logically, that an accused person must show at the relevant time either that he believed on reasonable grounds that victim was of or above the age of 16 years or that he was not more than two years older than the victim.

Because matters peculiarly within the knowledge of the defendant must be proved to avoid the penalty imposed by sub-s (1), the criminal law reverses the burden of proof."

20 Having determined that both of those aspects were present in this case, that is that there was no distinction between the statutory exception and the principle applied in Bonnor's case, and that the state of mind of the accused at the time of the offence was something peculiarly within his own knowledge, the Court accordingly held that

"Although the legislature did not expressly impose the burden of proving the mistake or age upon the defendant I am satisfied that to fulfil the purposes of the Crimes (Sexual Offences) Act 1980 sub-s (4) should be so read." (Page 724).

21 The case of Douglas was heard by the Full Court on the 6th of December 1984, and a decision was handed down on the 19th of December 1984. By coincidence, on the 5th and 6th of December that same year, the High Court heard the appeal of R v He Kaw Teh, but did not hand its decision until the 11th of July 1995 (R v He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523). That decision clearly overruled the line of authority upon which the Full Court relied in Bonnor and Douglas. This is apparent from the judgment of Gibbs CJ at the bottom of page 534 and continuing on page 535 wherein he states;

"In Proudman v Dayman, Dixon J may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal, and in Sweet v Parsley Lord Pearce and Lord Siplock understood them in different senses. In some later cases judges still spoke as though the onus of proof lay on the accused; see Dowling v Bowie; Bergin v Stack and Reg v Reynhoudt. However it has now become more generally recognised, consistently with principle, that provided there is evidence which raises the question the jury cannot convict unless they are satisfied that accused did not act under the honest and reasonable mistake; see Iannella v French, Kidd v Reeves, Mayer v Marchant, but cf Reg v Bonnor. This view has also been accepted in New Zealand. As I have said, it is in my opinion the correct view.

22 This same reasoning is found in the judgment of Brennan J at page 580 where he refers with approval to the dissenting judgments of Barry and Sholl JJ in Bonnor and expressly says that Bonnor ought not be followed.

"So far as Bonnor supports the notion that an exculpatory belief is implied as an excuse in a statute creating an offence, it ought not be followed. For reasons earlier stated, the absence of an exculpatory belief is now seen as a form of mens rea implied in certain circumstances as an element in a statutory offence the onus of proving which rests upon the prosecution."

**23 Dawson J at page 594 stated that Bonnor should no longer be followed in respect of its application to the [sic] where the onus lies with respect to the proof of honest and reasonable mistake.

24 The case of Douglas had not been handed down at the time that the argument was heard in the High Court and not surprisingly there is no reference to it.

25 It is equally clear that the other point of general principle upon which the Court in Douglas relied, that of the state of mind of an accused at a particular time being peculiarly within his own knowledge, can no longer be regarded as an appropriate determinative factor in deciding such issues. It is obvious that the Crown bears the onus of proving what is in the mind of the accused in almost every case that it prosecutes in these Courts. The offences vary from rape where the Crown must prove not only lack of consent by the victim, but proof beyond a reasonable doubt that the accused knew the victim was not consenting or had no belief that the victim was consenting, through an intent to permanently deprive a person of something in theft cases to an intent to do serious injury or even an intent to kill or do very serious injury. Each and every one of those intents that they have to prove are "peculiarly within the knowledge of the accused." This issue was discussed in a recent House of Lords decision of B v DPP [2000] UKHL 13; [2000] 1 All ER 833 at pages 839-40 and 851. That case concerned the mental elements of what had to proved [sic] by the Crown in respect of a charge of gross indecency with or towards a child under the age of 14. Lord Nicholls in his speech at 839 stated:**

"Nor can I attach much weight to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under 14 or was recklessly indifferent about the child's age. A well known passage from a judgment of that great jurist, Sir Owen Dixon, in Thomas v R [1937] HCA 83; (1937) 59 CLR 279 at 309, bears repetition:

'The truth appears to be that a reluctance on the part of the Courts has repeatedly appeared to a [sic] allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence fore [sic] states of mind and the like can never be a sufficient ground for excluding from inquiry the most fundamental element in a rational and humane code.'"

His Lordship then went on, after considering other issues, to finally state at page 841:

"Accordingly, I cannot find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. In my view the necessary mental element regarding the age ingredient in s 1 of the 1960 Act is the absence of a genuine belief by the accused that the victim was 14 years of age or above. The burden of proof of this rests upon the prosecution in the usual way. If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms."

**26 Accordingly, I find, that in light of the examination of the authorities relied upon by the Full Court in R v Douglas and the subsequent overruling of those authorities by the High Court in Teh's case, that the decision of Douglas was delivered per incuriam and I am accordingly not bound by that decision.

27 I have also examined the submission by the Crown that this is an offence of absolute liability. There are many factors that one has to examine to determine the issue of whether Parliament has created or intended to create an offence of absolute liability.

28 The wording of the sections of this Act that I am asked to consider, give no clear indication of the legislative intention of the Parliament in respect of the nature of these offences, that is whether they intended such offences to be absolute, strict or none of those two categories. To speculate as to the mental process of the parliamentary draft person or to arrive at "presumed" intention of the legislature, is with respect to those who have tried, an exercise in futility.

29 In order to answer the question, therefore it will be necessary to apply what have become accepted as the tests and determinatives in categorising offences as absolute.

30 These tests have been applied over a wide range of statutory offences; in areas such as narcotics, prostitution, sale of alcohol, driving of motor vehicles, and consumer protection.

31 If the wording of the statute itself is of little assistance, it is necessary to look at the object and subject matter of the statute and to the seriousness of the offence created.

32 Can the offence be classified as truly criminal in nature, does it, in addition to a fine, imprisonment or other penalty carry with it a moral stigma?

33 In addition, there is the question of enforceability considered in the context of the object of the statute. Does putting the defendant under absolute or strict liability necessarily assist in the enforcement of the law. Is it a law which can be characterised as one requiring persons engaging in certain activities to take care and penalising for any default?

34 It has been put that offences of strict liability:**

"Are not meant to punish the vicious, but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public safety, health or morals."

Reynolds v G H Austin (1951) KB 135.

**35 Essentially therefore the offences of strict liability arise from a policy of expediency; it is a weighing of the legislatures interest in ensuring matters of public welfare against the interest of ensuring that only morally culpable individuals suffer the sanction of the criminal law.

36 It remains the law however, that there is a presumption that when the legislature creates a criminal offence it intends that an element of such offence will be a guilty intent appropriate to the nature of the offence - see Cameron v Holt [1980] HCA 5; 28 ALR 490 and Teh.

37 Like any rule of common law, it may only be qualified or displaced by an express statement of legislative intent, or at the least, by necessary implication from the words of a statute. In my opinion this situation does not obtain in this case, and with respect I will adopt the words of Zelling J in Mayer v Marchant (1973) SASR 567:**

"The fact is that Parliament has no intention whatever of troubling itself about mens rea. If it had, the thing could have been settled long ago. All that Parliament would have to do would be to use express words that left no room for implication. One is driven to the conclusion, that the reasons why Parliament has never done that, is that it prefers to leave the point to the Judges and does not want to legislate about it, for my part, I have never seen any reason why if Parliament want in fact to impose criminal liability upon people who have no intention of breaking the law, and often no knowledge of the facts which would lead them to think that they were breaking the law, then it should say in so many words."

**38 Here the offence created is one that carries either ten or fifteen years imprisonment, depending upon the nature of any relationship that may exist between the child and the accused. It certainly carries with it a moral stigma. It could not be described as regulatory in nature, it is not necessary to put the accused under such strict liability to ensure enforcement of the law and finally Parliament has not by any words, as was acknowledged by the Full Court in Douglas, placed any obligation upon the accused to prove his belief.

39 Accordingly I find that the offences are not offences of absolute or strict liability and the Crown is obliged to prove, if there is any evidence relating to this issue raised in this trial, beyond reasonable doubt, that the accused did not have an honest and reasonable belief that the child involved in these events was over the age of 16.

40 I direct pursuant to Section 372(3) of the Crimes Act 1958 that counts 8, 14, 20 and 26 of the presentment be severed from the remaining counts and a separate trial be held in relation to those counts. For the reasons outlined earlier I am of the view that the accused would have in respect of those counts the onus of proving that he had taken all reasonable steps to ascertain the age of the accused, being over the age of 18 and that he also had a belief based on reasonable grounds that the person was aged over 18. Thus the accused would be prejudiced or embarrassed in respect of his defence of the counts laid pursuant to the Crimes Act 1958 wherein he bears no onus.

[1] [2006] VSCA 251.

[2] [2006] VSCA 251, [6]-[10].

[3] [1985] VicRp 70; [1985] VR 721.

[6] [1985] HCA 43; (1985) 157 CLR 523.

[8] R v Gane, 17 February 1994, (Judge Dyett).

[9] R v Franics, 12 February 1995, (Judge Hassett).

[10] See Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, 226 (McHugh J); and R v Cavkic, Athanasi and Clarke [2005] VSCA 182; (2005) 12 VR 136.