The complainant in these matters was a 13 year old girl. The child has an entitlement not to be identified: s 15A Children (Criminal Proceedings) Act 1987. In any published judgment she will be referred to as "the complainant."
[2]
Introduction
Jesse Loiterton, born 1998, has pleaded not guilty to four serious offences pursuant to s 66C(1) Crimes Act 1900. Each of the allegations against him relates to an allegation that he had sexual intercourse with the complainant in November 2017. At the time the complainant was a child over the age of ten and under the age of 14, namely 13. The offences are listed for trial together with those relating to his co-accused Bradley Harris next Monday, 6 May 2019.
The Court sat today to deal with an important pre-trial issue so far as Mr Loiterton is concerned. This ruling will determine the proposed course of his trial.
The prosecution case is that in November 2018 the complainant was introduced via a school friend to the co-accused Harris. Harris was aware that the complainant was then 13 or 14 years old. It is alleged that Harris met with the complainant and together they walked towards Loiterton's home in southern Wollongong. On the way there it is alleged that Harris had sexual intercourse with the complainant. A number of acts of sexual intercourse and an attempt are particularised in the proposed Indictment. It is also alleged that Harris incited the complainant to have sex with his friend, Loiterton. Harris was aged 18 at the time, Loiterton was aged 19. Later that evening contact was made between Loiterton and the complainant and she returned to his home. It is there the acts of intercourse, the subject of the counts against him, are said to have occurred.
Although formal admissions are yet to be made, Ms Humphreys, who appears for Loiterton, has indicated that the acts of intercourse will be admitted and that there is only one critical issue in this trial; whether, if there is an evidentiary basis for Loiterton holding an honest and reasonable belief that the complainant was aged over 16 years, the prosecution can exclude it..
If that issue is not, as a matter of law, able to go to the jury, Ms Humphreys conceded that Loiterton has no answer to the four counts on the indictment.
The state of prosecution evidence, is set out succinctly in the Crown's written submissions, MFI 1.
"The fact that sexual intercourse is unlikely to be an issue having regard to the sexual assault investigation kit (SAIK), DNA results and text communications in evidence. It is however apparent on the brief that there is evidence that the complainant misled the accused about her age at the request of the co-accused Harris. There is however, no evidence of what the accused in fact believes."
The complainant in her recorded interview, to be tendered as part of her evidence in chief at trial, says she was told by Harris to lie to Loiterton about her age: Voir Dire Exhibit 1- Question and Answers - 231 and 232. She texted with Loiterton via SnapChat, a social media platform accessed through mobile phones. He asked how old she was. She told him what Harris told her to say: Question and Answers - 241 to 250 and 527 to 530. She also said that later Loiterton asked her about her being in year 12 at school and she did not contradict him. She also said she told him she worked at Maccas': Question and Answer 534 to 540.
At question 530, the interviewer asked, "So far as you know he thinks you were 17 or 18?" The complainant answers, "Yeah". It is accepted by the parties that physically the complainant could be mistaken for being aged over 16.
The pre-trial issue raises the availability of what is commonly called the Proudman v Daymon defence: Proudman v Daymon ([1941] HCA 28; (1941) 67 CLR 536: is it available to offences under s 66C(1) Crimes Act 1900? It is accepted that the term 'defence of mistake of age' is shorthand for a more complex principle. It is not strictly a true defence. Rather, if there is an evidential foundation for it, a legal burden is placed on the prosecution, to disprove an honest and reasonable mistake of age that would make the otherwise criminal, innocent. This judgment uses the common shorthand.
The matter is of importance. It involves a consideration of what fell from the High Court in CTM v The Queen [2007] HCCA 25; (2008) 236 CLR 440. The majority joint judgment there, while it confined its determination related only to s 66C(3) Crimes Act 1900, did say:
"The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3):" Joint judgment at [35].
CTM v The Queen has been the subject of one decision of this Court: Zayat v R [2016] NSWDC 166, Townsden DCJ.
[3]
Submissions
The prosecution contention is that s 66C(1) Crimes Act is, and has in effect always been, no matter what its incarnation in the Crimes Act, a crime involving strict liability: once the prosecution prove the act of sexual intercourse and the age of the complainant is between 10 and 14 years, all of the necessary elements are proved and that there is no defence of mistake of age.
The defence contention in short summary is no matter what the situation may have been prior to the repeal of s 77(2) Crimes Act in 2003, the logical extension of the reasoning of the majority in CTM v The Queen, compels a conclusion that the defence is now available, not just as the High Court concluded for an offence pursuant to s 66C(3) Crimes Act, but to all matters that could give rise to a potential mistake of age defence.
It is accepted that the belief of an accused, to be exculpatory must be reasonable. The greater the gap between a child's true age and the age of 16 years, the less likely it may be, in practice, that such a belief was reasonable, A the joint judgment in CTM v The Queen of Gleeson CJ, Gummow, Crennan and Keifel JJ, noted at [27]. But that is a matter for a jury if they are allowed and as a matter of law to consider the defence .
In submission Madam Crown makes these points:
The decision in CTM v The Queen was restricted to s 66C(3) Crimes Act.
Since at least 1921, perhaps earlier, mistake of age has not been a defence to the offence of having sexual intercourse with a child under the age of 14. No legislative provision has reversed this.
The introduction of a specific statutory defence in s 77(2) Crimes Act made this legislative intention implicit.
The legislative history confirms that for a female child under the age of 14 it is an offence of absolute liability to have sexual intercourse with a child - nothing has changed.
No defence, she says, was introduced into the Crimes Act by Parliament in 2003, and accordingly CTM v The Queen must be confined to s 66C(3) Crimes Act, as the joint judgment made clear at [35]. She relied on the legislative history that fell from both Hayne and Hayden JJ in CTM v The Queen; mistake of age has never been a defence, a point made by Hayden J at [229].
She also relied on what fell from Howie J in the Court of Criminal Appeal: CTM v R [2007] NSWCCA 131. Howie J said that,
"…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:" at [125].
The prosecution case is in summary that if for over 100 years there has never been a defence available of mistake of age where the child complaint has been aged under 14 years, nothing has changed and that the defence is not available to be put before the jury at trial.
She distinguishes Judge Townsden's decision to the contrary in Zayat, because:
"With respect, that decision does not consider fully the legislative history of sexual offences against children, nor the policy which is applied to the statutory offences of sexual offences against children."
Ms Humphreys for Loiterton responded:
"1) Judge Townsden's analysis is compelling, it accords with the logic of what was set out by the majority of the High Court in CTM v The Queen.
It would be absurd if one subsection of a section of the Crimes Act provided a common law defence and another identically worded subsection did not.
CTM v The Queen was decided in 2008. Since then Parliament has not amended the Crimes Act to remove any possible ambiguity. Absent clear legislative direction or necessary implication from the words of the section the common law applies - an honest and reasonable belief in the existence of circumstances, which if true would make the act for which the accused is indicted an innocent act, has always been held to be a good defence.
Ms Humphreys notes that s 80AB of the Crimes Act, introduced into the current Act in 2018, deals with s 66C, but rather than correct any perceived anomaly focuses on consent issues not mistake of age. She took me through majority decisions in CTM v The Queen, but also referred to a comment Howie J in the Court of Criminal Appeal, also at [125]:
"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."
She raised the obvious policy concerns that in such a situation, which is the defence case here, a person with no guilty mind could be subject to absolute liability and face a possible sentence up to 16 years, and all of the consequences that follow from a conviction for a child sex offence. She points to strong policy reasons why in the absence of anything specifically in the Crimes Act indicating that that defence is not available, nothing should be read into it.
Ms Humphreys submits that there is an evidentiary foundation for the proposition Loiterton did in fact believe on reasonable grounds the complainant was 16 or over, accordingly he should be entitled to raise that issue and have the jury, as representatives of the community, determine it.
In reply, Madam Crown says that there is, and has been for over 100 years, a powerful policy reason for insisting upon absolutely liability in such cases: that is; the protective role over children adopted by both Parliament and the Courts. And that protective role is reinforced by the more recent understanding of the dangers of both physical and psychological harm that can be caused by premature sexual activity, and the concern of Parliament on behalf of the community, to prevent, at all costs, the sexual exploitation of children.
Madam Crown highlights that a child under the age of 16, particularly a child of 13, can never consent to an act of sexual intercourse, and that children can be, and she says the Crown case here establishes, are, subject to inducements and undue pressure to lie and put themselves at risk. There thus have been and remains, sound policy reasons for insisting on absolute liability where a child complainant is under 14 years.
[4]
Consideration
Judge Townsden took a relatively straightforward approach in a short ex tempore judgment delivered just before Zayat's trial commenced:
The common law principle of honest and reasonable mistake of fact was expressed by Cave J in The Queen v Tolson (1889) 23 QBD 168, where he said:
"At common law an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a good defence."
The joint judgment in CTM v The Queen said at [25]:
"The common law principle in question reflects fundamental values as to criminal responsibility. The Courts should expect that if Parliament intends to abrogate that principle it will make its intention plain by express language or necessary implication. It would therefore construe the legislation in the light of these principles of criminal responsibility stated at the outset of these reasons."
Prior to the legislative changes in 2003 the New South Wales legislature had in s 77 Crimes Act narrowly confined the circumstances where an accused could raise the issue of having an honest and reasonable mistake affect the situations where the complainant was age 14 years or above.
Section 66C(1) Crimes Act and (3) as amended are now unambiguous in their wording, they both deal with age and the separate issue of consent.
Judge Townsden concluded that where the legislation is silent on the issue:
"It is not for the Courts to effectively introduce a section of an Act of Parliament which no longer exists. It may well be an error made by Parliament, however if there is such an error it should be addressed by Parliament where there is no ambiguity in the Act. Where Parliament intends to punish those persons who commit an act which he or she 'honestly and reasonably believe to be lawful and right', there needs to be the clearest, most indisputable evidence that such is the meaning of the Act."
His Honour then, after citing Tolson, concluded:
"It would be quite an absurd situation that in following the High Court decision in CTM the Court would, however, limit the application of this principle by inserting an express limitation that is not clearly found in the legislation."
The parties submissions and Judge Townsden's judgment compels a discussion of what did fall from the majority of High Court in CTM v The Queen. The decision is not determinative as the majority clearly restricted its judgment to matters falling to s 66C(3) Crimes Act. The Court's focus was on the impact of the 2003 repeal of the defence set out in s 77(2) Crimes Act. In the Court of Criminal Appeal it was accepted that s 77(2) Crimes Act or its predecessor had limited the defence to the age range 14 to 16 and evinced a legislative intention that the common law defence was not to apply where the child was aged below 14. This point did not have to be resolved by the High Court.
Hayne J's detailed analysis was accepted by the joint judgment and Kirby J. The joint judgment and Kirby J accepted that there were powerful arguments for the propositions put by the Court of Criminal Appeal but they did not find them compelling: at [34] and [58].
In his dissent Hayden J, at [198], noted that the words of the Crimes Act while they did not specifically exclude a defence and had to be considered in context. He said that that Proudman v Daymon was a presumptive principle, not an absolute one. Justice Hayden noted if taken to its logical extreme then the decision of the majority could apply to children under 14, and in fact under ten: At [200].
These points were taken up by Madam Crown today. They, and her respectful criticism of Townsden DCJ, requires consideration of the impact of CTM v The Queen and the legislative history of sexual offences now found in s 66C Crimes Act.
As occurred in CTM v The Queen the question is posed: what does the law now provide if a person honestly believed on reasonable grounds the complainant was aged 16 years or over? If mistakes are made how is the law to deal with them?
While those questions were asked and answered so far as s 66C(3) Crimes Act is concerned, as Madam Crown points out, the majority in CTM v The Queen did not extend their analysis to s 66C(1) Crimes Act. Section 77(2) Crimes Act, which was introduced in 1923, related to only female children until 1983. The Crimes Amendment (Sexual Offences) Act 2003 made substantial amendments to the sexual offence provisions in the Crimes Act. The joint judgment in CTM v The Queen noted that as a consequence of the amendment, sexual intercourse with a child under the age of ten was an offence for which the necessary mental element or intention was "uncomplicated". It was necessary for the prosecution to prove an intentional act with a intercourse with a certain person and to prove that the person was under the age of ten years, but they then noted that for an offence against s 66C Crimes Act the position was "more complicated" and depended upon whether the alleged female victim was 14 years of age or older and whether the alleged victim consented: At [20].
After 2003 the potential Proudman v Dayman defence of exculpation was not conditioned as it had been with the old s 77(2) Crimes Act. The joint judgment and Kirby and Hayne JJ, accepted that the Court of Criminal Appeal had erred in finding the 2003 judgment indicated a continuing legislative intent that the offence was one of strict liability. The argument to the contrary was rejected.
The High Court gave no direct assistance to the Courts faced with the questions now posed. It is however important to note that the argument put in dissent by Hayden J as to the potential logical extension of the High Court's determination was obviously before them. What then is the present state of the law and to what extent can there be determination by this Court of the necessary implications that the Crown submit can be read into the Crimes Act and the amending legislation in 2003 so far as s 66C(1) Crimes Act is concerned?
[5]
Determination
Section 66C Crimes Act was inserted in 2003. At the time New South Wales Parliament there was no mention that the offences under the proposed s 66C Crimes Act would be offences of absolute liability.
The Crimes Act deals substantially with serious crimes. Generally a person who engages in prohibited conduct in not criminally responsible for that conduct unless the required mental element is present. In respect of the s 66C Crimes Act, the act to be proved is sexual intercourse. The circumstances that makes it criminal, what is otherwise innocent, is the age of the person with whom an accused has sexual intercourse.
There is nothing in the wording of s 66C Crimes Act to state that the ordinary common law principles do not apply to the section. Provisions do exist in the Crimes Act for the modification of common law rules. Examples can be found in ss 580 and 580A to 580H Crimes Act. In addition chapter 4 Evidence Act 1995 contains references to proof in criminal cases: for example s 141. Section 80AB was introduced into the Crimes Act in 2018 by the Crimes Legislation Amendment (Child Sexual Abuse) Act 2003. It deals with matters relating to proof and alternative verdicts for sexual intercourse offences, including s 66(3) Crimes Act. Other substantial amendments were also made to the sexual offence provisions.
As the majority of the High Court made clear in CTM v The Queen there is a common law presumption that a guilty mind is an element of an offence even though the offence is defined only by reference to the circumstances that make it criminal.
Section s 66C(1) Crimes Act creates a criminal offence with potentially draconian results. Section 66C Crimes Act offences cannot be assumed to be offences of absolutely liability in the absence of either clear words or an inescapable inference that can be drawn from the subject matter of the section or an inescapable inference that can be drawn from other accepted aides to statutory interpretation.
There are no clear words in the Crimes Act; to the contrary nothing distinguishes s 66C(1) Crimes Act from s 66C(3) Crimes Act. What then allows this Court to conclude that once evidence about mistake of age goes fit to go to a jury has been raised, the prosecution should not be allowed to go to the jury?
If the prosecution contention is correct an intent by the New South Wales Parliament to deprive an accused of the common law defence of mistake of fact must be found in s 66C (1) Crimes Act because the history of the provisions for over 100 years shows no inconsistency was intended for offences committed before 2003 and after. That history established that the unambiguous policy of Parliament was that sexual intercourse with a child under 14 was one of absolute liability.
I do not have time nor is it necessary to review the full history of the provisions that led to Crimes Amendment (Sexual Offences) Act 2003; they were comprehensively reviewed in CTM v The Queen. The Court there had regard to the Criminal Law Amendment Act 1883, the Crimes Act 1900 and the Crimes (Girls Protection) Act 1910, the Crimes (Girls Protection) Act 1911, the Crimes (Amendment) Act 1924 and the Crimes (Child Assault Amendment) Act 1985. Most of the provisions relating to child sexual offences until 1984 related to specifically and only to female children.
Section 77(2) Crimes Act did expressly include male, but not female homosexual offences. Therefore neither the existence nor the repeal of s 77(2) Crimes Act had any effect on sexual offences committed by a male upon a male under 18.
Reference was made in CTM v The Queen to Chard v Wallis (1998) 12 NSWLR 453, where Rodin J considered the legislative history of child sex offences. Noting the language of the statute and applying He Kaw Teh v The Queen (1984-85) 157 CLR 523, Rodin J was of the opinion that in the absence of a statutory defence, it was difficult to resist the conclusion that defences available at common law would continue to apply in the usual way to Crimes Act s 78Q(2). Section 78Q was an offence of gross indecency by a male upon a male aged under 18.
Historically there have been many inconsistencies in respect of child sexual offences and the available defences in New South Wales. Those inconsistencies as this judgment makes clear continue. Parliament can be taken to have been aware of the inconsistencies and of the decision in CTM v The Queen since 2007. There is nothing, even in the most recent amendments which address s 66C Crimes Act, to resolve the potential ambiguity.
The prosecution submissions rely on the impact of a repealed section, s 77(2) Crimes Act. It was the foundation for the Court of Criminal Appeal's conclusion that after 1921, perhaps back to 1910, absolute liability applied to offences involving sexual intercourse with a female child under 14. As a matter of statutory construction a repealed section must be treated as it never existed. The relevant cases are cited in Pearce & Geddes, Statutory Interpretation in Australia, 8th Edition at [3.32]. A repealed section can however be used to construe what remains in an Act (Mathieson v Burton (1971) 124 CLR 1), and in assessing the wider context of the statutory scheme: Lavender v The Queen (2005) 222 CLR 67.
Prior to 2003, the older versions of what is now s 66C Crimes Act was read in context with the existing mistake of age defence provisions in s 77(2) Crimes Act. The Crimes Amendment (Sexual Offences) Act 2003 repealed both s 66C and 77(2) Crimes Act. A new s 66C Crimes Act was introduced with no corresponding mistake of age defence provision. The new s 66C Crimes Act came after the repealed provision. It cannot gain context from what came before in the very specific sense noted in Lavender.
Section 77(2) Crimes Act operated only in relation to some Crimes Act offences. There was no uniformity prior to 2003. The repeal of s 77(2) Crimes Act brought uniformity. No context found from the repealed provisions can support the reading into the new legislation, an intention of Parliament that the ordinary rules applying to proof of the mental element in crime are not to apply. To do otherwise would involve the Court legislating where Parliament has clearly chosen not to do.
The language of s 66(1) Crimes Act, like s 66(3), is clear. The offence is not expressly stated to be one of absolute liability. Where the provisions are left silent, it is the responsibility of courts to arrive at the most appropriate answer: Binksin v Watson (1990) 48 A Crim R 33, at 43. In doing this the Courts should not derogate from the clear words of the section and accepted principles of statutory interpretation.
As the majority made clear in CTM v The Queen, there was no clear policy on the part of New South Wales Parliament to deprive an accused of the common law defence of honest and reasonable mistake in respect of the cognate offences of Crimes Amendment (Sexual Offences) Act 2003 and specifically in respect of s 66C(3) Crimes Act 1900. Parliament's deliberate omission of the statutory defence does not and cannot render the new Crimes Act offence one of absolute liability. Hardgrave v The King [1906] HCA 47; (1906) 4 CLR 232, Thomas v The King [1937] HCA 83; (1937) 59 CLR 279, Proudman v Daymon and He Kaw Teh establish that the common law defence honest and reasonable mistake is available in Australia.
Judge Townsden also referred to Tolson. The English authorities carry with them a tension between Tolson's case and Prince v R (1985) LR 2 CCC 154. Brennan J in He Kaw Teh and Rodin J in Chard v Wallis do not accept that Prince is good law in Australia.
The common law relating to honest and reasonable mistake applies here. Courts should resist the temptation to engage in legislative reform where the Courts consider the legislation as wanting. I concede as is argued here that there are important and contradictory policy arguments that apply. Those policy arguments are matters for Parliament.
Here, the wording of the section in the Crimes Act itself does not exclude a Proudman v Dayman defence. Section 66C(1) Crimes Act carries a maximum penalty of 16 years imprisonment. In those circumstances it is not for me to make a policy determination, but to apply the clear words of the section and the Act and to apply, so far as is applicable, the reasoning of the majority of the High Court in CTM v The Queen. While there is an argument to the contrary, the public has to have confidence that they can go to an Act of Parliament and the common law and interpret that Act.
With respect to Madam Crown's argument, to rely upon a legislative history to distinguish one subsection of a section from another, cannot be sufficient to show that there was some necessary intention that the common law be excluded from s 66C(1) Crimes Act. I propose to leave the defence to the jury if an evidentiary foundation for it is raised at trial.
[6]
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Decision last updated: 09 May 2019