by Andrew Haesler SC
The eminent legal scholar Professor Glanville Williams in his leading text,
Criminal Law 3rd Ed p. 182, said:
He was writing about
Prince's case, reported at (1875) LR 1 CCR 154 and dealing specifically with how judges 'bent' the common law. The problem is just as acute today as it was in 1875. However, now it is the executive government who are prepared to bend, change or distort laws to give expression to feelings of moral outrage. The judges of today are, on the whole, much more timid when it comes to changing the common law. There is no such reticence in the modern politician.
As a consequence the biggest sex problem for the criminal lawyer I am of course not dealing with the usual run of the mill psychosexual problems associated with those who do criminal defence work. That would require far more time than I am allowed here. In fact it may justify a conference of its own. Also I doubt if I am qualified to speak on that topic. It is really better left to acknowledged experts such as Dr Mary Hartman (Julie McCrossan). is coming to grips with constant change and a real and abiding fear that every time you successfully defend a client the law will be changed to make it harder if not impossible to do so again.
The Age of Consent I am indebted to Jen Wheeler Researcher at the Public Defenders, for her help in preparing this paper.
Despite every attempt to preach the virtues of abstinence children still seem to think that sexual intercourse can be enjoyable and fun, and ignore laws that say they can't engage in it. While law makers argue about the merits of an age of consent, and health experts agree that sex too early can be emotionally and physically damaging, children still do it. Haven't they heard of deterrence?
In 2003 the NSW Parliament introduced laws designed to regularise the age of consent and remove discriminatory provisions. Prior to 2003 section 77(2)
Crimes Act allowed a defence if a mistake was made about the age of a consenting child over the age of 14. The defence of honest and reasonable mistake was available in relation to certain sexual offences (including s.66C) where the complainant was female, older than 14, consented to the activity and the offender honestly and reasonably believed the complainant was older than 16.
Section s.77 (2) was deleted by amendments to the
Crimes Act in 2003.
The facts in CTM (2007) 171 A Crim R 371,  NSWCCA 131, were fairly typical:
* When CTM was 17 years old. He had sexual intercourse with the intoxicated 15 year old female complainant.* CTM was charged with aggravated sexual assault (s.61J) and aggravated sexual intercourse with child 14-16 years [s.66C(4)]. An alternative count of sexual intercourse with child 14 -16 years [s.66C (3)] was also left to the jury.* CTM's defence was that he did not have sexual intercourse with the complainant. He did not give evidence at trial. His counsel asked the judge to leave the mistake of age defence to the jury Applying
Pemble v The Queen (1971) 124 CLR 107 at 117-118, see also Kirby J in CTM at  &  as in an ERISP he told police complainant the she had told him she was 16 years old.
A: I think it was the start of the year, started to go to ... and then that's when I met the complainant.
Q54: Do you know how old [the complainant] is?
Q55: How do you know that?
A: Well that's how, that's how old she told me.
Q56: When did she tell you that?
A: Like when I first met her. I just assume that she's 16 ever since.
Q57: Does [the complainant] go to school?
A: She didn't for a while but she does now at the moment as far as I know, she's back at school.
Q58: OK. Do you know what year she's in?
A: Year 10 I think.
* The trial Judge left the 'defence' of honest and reasonable mistake as to age of complainant with the jury. However he (wrongly as it turned out) directed the jury that the onus of proof was on appellant on balance of probabilities.* CTM was acquitted at trial of all the counts on the Indictment but convicted him on the statutory alternative charge of sexual intercourse with child 14 -16 years [s.66C(3)].* CTM appealed his conviction. Originally on the basis the conviction was unreasonable but after the Crown put on a notice of contention the issue shifted to whether s.66C was now an offence of absolute liability.In
CTM v R (2007) 171 A Crim R 371,  NSWCCA 131 the Court of Criminal Appeal (Hodgson JA, Howie and Price JJ) held that it doesn't matter what an accused believes, if the consenting child with whom he (and it is always a he) had intercourse was under 16, the fact of intercourse alone made him guilty of an offence and liable to a penalty of up to 10 years gaol. Sec 66C(3) As the offence was one of absolute liability, by logical extension, if a child under 16 pretends to be 17 and produces fake ID or other proof of age the person who has intercourse with them is still criminally liable.
The Court of Criminal Appeal's argument was simple. There was only a limited defence of mistake of age, if the child was over 14, prior to 2003. As that defence was removed there is now no defence.
This conclusion was supported by reference to the legislative history of provisions relating to sex with underage girls.
The defence case was equally simple. To remove a common law defence requires a clear statement of legislative intent. The legislative history of the mistake of age laws remains ambiguous and in many respects contradictory, particularly regarding male homosexual intercourse. The
Crimes Act is now silent. Anyone reading s. 66C would have no idea that the common law
Proudman v Dayman defence of honest and reasonable mistake of fact does not apply. If section 66C is read to imply there is no defence there could be no certainty in the law and there would be considerable risk of injustice. If Parliament wanted to remove a common law defence, they should have said so explicitly.
Despite the apparent simplicity of the two opposing positions the argument in the High Court took a full day. See High Court transcript  HCA Trans 117, 29 February 2008.
After special leave was granted in December last year the Chief Judge of the District Court sent an email to all judges noting that in cases where mistake of age was to be argued adjournments should be granted. The High Court's decision in
CTM v The Queen  HCA 25 was delivered on 11 June 2008. We now have to deal with the backlog of cases.
CTM v The Queen HCA 25
1. Whether common law 'defence' of honest and reasonable mistake is available to offences under s.66C(3)?2. Whether the onus of proof is on prosecution?3. Whether the defence should be left to jury if it not raised by appellant?4. Whether the defence was raised in the circumstances of this case?
1. The common law defence is available.2. The onus remains on the prosecution to prove the accused did not make honest and reasonable mistake, once the evidence raised the defence.3. The defence can be left to jury although not relied upon directly by the accused during trial.4. In the particular circumstances of CTM's case the defence was
not raised, as here the accused failed to meet the necessary evidentiary burden.Appeal dismissed.
Reasons: Availability of Defence
The leading judgment is that of Hayne J. In a joint judgment Gleeson CJ, Gummow, Crennan and Kiefel JJ agreed. Kirby J also agreed about the availability of the defence. Heyden J dissented; agreeing with the Court of Criminal Appeal.
The key passage of Gleeson CJ, Gummow, Crennan and Kiefel JJ's decision is at :
Similarly, at  Hayne J found:
 It is no answer to the presumption to say, as was urged on behalf of the respondent in the present matter, that prosecutorial and sentencing discretions could accommodate the fact of mistake of age. Those discretions provide no answer because the relevant question is one of criminal responsibility. A person should not be held criminally responsible for conduct which would be innocent if the facts were as that person reasonably believed them to be.
The majority made three further points about mistake:
(1) Mistaken belief that a complainant who is aged 14 or under but was actually 15 or 16 years does not effect criminal responsibility because the accused is still guilty of an offence. The accused must believe that he is innocent.(2) Mistake as to age does not raise a question as to consent.(3) Mistake as to age must be reasonable.Raising the Issue
Where Kirby J disagreed with the other members of the majority was on the question of what evidence is required to raise the issue. Gleeson CJ, Gummow, Crennan and Kiefel JJ said:
* Telling police the complainant had told him she was 16 years old did not discharge CTM's evidentiary burden. * They went back to
Jimenez (1992) 173 CLR 572 where the Court had said that the question of honest and reasonable mistake relied not just upon the claims of the offender.
 Here the fact that the defence case at trial (unsupported by sworn evidence of the appellant) was that no intercourse occurred did not of itself make the point unavailable, especially where according to the defence case, the only reason no intercourse occurred was that the appellant's plans in that regard were interrupted. There was, however, nothing to support the honesty and reasonableness of a suggested belief in the truth of his out-of-court assertion that the complainant had told him what would have been a lie about her age. The complainant (who was in fact 15) gave evidence that she was in year 9 at school. The appellant, aged 17, was in year 11. In his record of interview the appellant, when asked by the police how old the complainant was, said '16'. When asked how he knew that, he said that the complainant had told him. He also said the complainant was, he thought, in year 10. It was not suggested to the complainant in cross-examination that she had lied to the appellant about her age or, for that matter, that she had discussed it with him.
 Honesty and reasonableness are essential features of the mistaken belief relied upon as a ground of exculpation. The belief of the appellant was a matter peculiarly within his own knowledge, but he gave no sworn testimony about it. The reasonableness of his belief was based on an out-of-court assertion as to what the complainant allegedly said, but this was not out to her in cross-examination. A tentative out-of-court suggestion by the appellant as to the complainant's class at school, which would have been consistent with his case, was shown by the evidence to be wrong. The evidential burden was not satisfied.
Hayne J at  quoted what had been said by Dawson J in
He Kaw Teh (1985) 157 CLR 523 at 592-3
Hayne J said that although the defence case at trial was that no intercourse took place, there was no legal reason why the defence could not also argue mistake as to age (although this may cause forensic difficulties for the accused) (at ).
At  Hayne J went on the say:
Justice Kirby's dissent on this issue is scathing, but, once again, he failed to convince any of his comrades on the High Court bench.
Comment on CTM v The Queen
According to the judgments there appear to be three reasons why mistake of fact was not sufficiently raised as an issue at trial.
1. The appellant relied upon a belief that he formed as to the age of the complainant. This belief was expressed only to police and was never confirmed in evidence by the appellant.2. The basis for the belief was an alleged conversation with the complainant some months before the incident yet the complainant was never cross-examined about this conversation.3. It appears from the brief summary there was simply no evidence, and no attempt to lead or produce evidence, corroborating the appellant's claim as to mistake.Whether mistake has been raised will depend upon the circumstances of the case. Where the appellant relies simply upon his or her own belief or opinion, as in this case, it seems essential that there be evidence of that belief. If possible evidence supporting the basis of the belief should be provided - either through cross-examination of the complainant (if he or she is alleged to have contributed to the belief) or the production of any other evidence. Obviously evidence from the accused would meet the test. The majority intimated, but did not say directly, that evidence from the accused would be required. Perhaps if the accused is able to establish a basis for the belief from other evidence he or she may not need to give evidence themselves provided sufficient evidence of their belief is before the jury. It is now clear however, that simply pointing to a belief about the complainant's age in an ERISP, will not be enough evidence to raise the issue.
will clearly raise the issue:
* Evidence about the belief of the accused or the basis for the belief from the accused, the complainant, a co-accused or other witness.* Having the complainant accept in cross-examination that he or she misled the accused.* Evidence from others whose reputations would properly found a belief eg mum or dad saying 'I told him my daughter was 16'.The following
may raise the issue:
* A detailed explanation for the belief and the reasons for it in an ERISP
and* These points being put to the complainant in cross-examination (if the belief is based on something said or done by the complainant)The following alone
won't raise the issue:
* A simple statement in an ERISP as to a mistaken belief.* Cross-examination that is denied or rejected by the complainant.The following is still unresolved:
* There is an implication in Justice Haynes judgment at  that a statement of belief as to age in an ERISP and raising the issue in cross-examination (even if the proposition is rejected) will suffice. This, however, still leaves the jury with an out of court assertion and an in court assertion without evidence. As a majority (Gleeson CJ, Gummow, Crennan and Kiefel JJ ) took a stricter view I am not at all confident that that evidence which accords with Hayne J's view will suffice.
Prosecution reliance uncharged sexual Acts;HML & Others v The Queen  HCA 16 I had considerable assistance in preparing this summary from the Summary found on JIRS.
One of the continual problems that arise in sexual assault trials is how the court and the jury are to deal with evidence of alleged but 'uncharged' sexual acts. In this South Australian case the High Court was evenly divided 3:3 on question of whether evidence of uncharged acts is admissible as 'background' or "context" to explain the nature of the relationship between the complainant and the accused and provide the background or context to the alleged sexual offences. Those in favour were: Gleeson CJ, Crennan J and Kiefel J. Those against were Hayne J, Kirby J and Gummow J. Heydon J did not decide the point.
The Court did hold that evidence of uncharged acts is admissible to establish the accused's "sexual interest" in the complainant. And that if admitted the jury must be directed that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt.
The Court also held that it is inadvisable for judges to describe evidence of other sexual incidents to the jury as 'uncharged acts' since this may invite speculation about why no charges were laid.
A majority In favour were Gummow J at , Kirby J at ,  and ; Hayne J at ,  and  and Kiefel J at .Gleeson CJ and Crennan J dissented on this point applied the common law the test in
Pfennig v The Queen (1995) 182 CLR 461 to the evidence. This test requires a consideration of whether there is a rational view of the evidence consistent with the accused's innocence. It was recognised however that the decision may not apply where the common law had been modified by statue.
In New South Wales of course the
Evidence Act applies and lays down principles, which exclude the common law.
R v Ellis (2003) 58 NSWLR 70 at . The
Pfennig 'no rational view' test does not apply when considering the admission of tendency or coincidence. Sexual interest or context evidence falls into these categories. The statutory test in sections 98 and 99
Evidence Act 1995 requires a balancing exercise: does the probative value of the evidence
substantially outweigh its prejudicial effect? (See
R v Ellis (2003) 58 NSWLR 70 at -).
The NSW Judicial Commission site carries the following caution:
In my opinion:
* HML clearly spells an end to the term 'uncharged acts'.* Until the Court of Criminal Appeal rules otherwise this direction should be sought: before the jury can use evidence of other sexual incidents they must be satisfied those incidents occurred beyond reasonable doubt.
Committals from the Children's Court -PM v The Queen
Although not every serious children's criminal offence involves a sex crime many do. Before a child is committed to the District Court the Magistrate must be satisfied that the charges may not properly be disposed of in the Children's Court in a summary manner. Ordinarily, if a person pleads not guilty before the Children's Court to an indictable offence that is not a 'serious children's indictable offence', the proceedings are dealt with summarily in the Children's Court, unless one of two conditions in s. 31
Children's Criminal Proceedings Act 1987 (the
CCP Act) are met. First, the accused person may elect "to take his or her trial according to law". Secondly, the accused person is to be committed for trial if:
(b) The Children's Court is of the opinion that "the charge may not properly be disposed of in a summary manner".
A problem can arise where, after a child is committed for trial for a 'serious indictable children's offence,'the Director of Public Prosecutions chooses not to proceed on that charge, but indicts for a lesser indictable offence. Must the proceedings for that lesser offence return for hearing and determination by the Children's Court? Does the District Court have jurisdiction to hear and determine that lesser offence?
After the District Court trial had commenced the defence raised the issue and the trial judge stopped the trial and remitted the matter to the Children's Court so that s.31 CCP Act could be complied with. The Crown appealed and the Court of Appeal agreed (2:1).
These issues were debated in the High Court in
PM v The Queen (2008) 82 ALJR 57. Although PM had been committed to the District Court for trial for a 'serious indictable children's offence,'the charges eventually preferred against him were indictable offences
other than a 'serious children's indictable offences'. As a consequence he never had the opportunity given by s. 31(2) to elect to "take his or her trial according to law" for those offences, and, most importantly, the Children's Court had not first decided under s. 31(3) that the proceedings on
those charges may not properly be disposed of in the Children's Court in a summary manner. The District Court judge had found that the District Court did not have jurisdiction to hear the matter and remitted the case to the Children's Court under s. 44 CCP Act. The Crown appealed to the CCA and the order remitting the matter was set aside.
DPP v PM (2006) 164 A Crim R 151
In dismissing the accused's appeal the High Court held that the District Court had jurisdiction to deal with the charges preferred and that no order for remitter should have been made. Where a child is before the District Court for sentence s.20
Children (Criminal Proceedings) Act 1987 allows a higher Court to remit the sentence hearing to the Children's Court so that it can be dealt with pursuant to the
Children (Criminal Proceedings) Act 1987. Section 20 does not apply to serious children's indictable offences. The Court rejected the dissenting argument of Basten JA in the CCA that all offences which are not serious children's indictable offences are to be dealt with summarily in the Children's Court unless the steps prescribed by s. 31 of the
CCP Act are engaged.
The critical point for the High Court was that s.31 does not speak to courts other than the Children's Court. The Court reasoned that the words of s. 31 apply to the Children's Court and to any criminal proceedings before the Children's Court. They are not directed to any other court or to proceedings in any other court. Nothing in the section removed the jurisdiction of the District Court to deal with the matter then properly before it; therefore no power of remitter arose.
Kirby J (in a separate judgment, but not for once in dissent) did however reiterate that:
Sexual Procurement or Grooming of Children
Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 commenced on 18 January 2008. It introduces a new s 66EB into the
Crimes Act 1900, which creates offences of procuring or grooming children under 16 years for unlawful sexual activity.
If an adult intentionally procures a child, under 16, for unlawful sexual activity or exposes a child to indecent material or provides a child with an intoxicating substance, with the intention of making it easier to procure the child for unlawful sexual activity they face maximum penalties of between 15 years and 10 years (depending on the age of the child). A police officer pretending to be a child on the internet is still a 'child' if the accused believes that he or she is a child: s 66EB (5). Consent is not a defence to a prosecution under s 66EB (see s. 77).
Crimes Amendment (Consent - Sexual Assault Offences) Act 2007 - commenced on 1 January 2008. I am aware that some thought and effort went into these changes. The Act is said to be based on recommendations contained in the report of the Criminal Justice Sexual Offences Taskforce,
Responding to Sexual Assault: The Way Forward (April 2006) and subsequent submissions to the Criminal Law Review Division of the Attorney General's Department. I am afraid it doesn't show!
The new s. 61HA sets out the statutory definition of consent in unlawful sexual intercourse cases in ss. 61I, 61J and 61JA. A person consents to sexual intercourse 'if the person freely and voluntarily agrees to the sexual intercourse'. The terms 'free and voluntary' can be found in
R v Clark, unreported, CCA, 17 April 1998 and
Question of Law (No. 1 of 1993) (1993) 59 SASR 214 at .
The section sets out circumstances in which consent is negated. An objective fault element for the purpose of determining the accused's mens rea is also introduced.
The new changes apply to offences committed on and after 1 January 2008.
Section 61HA(7) provides, 'A person who does not offer physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.' This provision was previously contained in s 61R(2)(d).
Consent is negated s. 61HA(4) if:
(b) the person does not have the opportunity to consent because he/she is unconscious or asleep;
(c) the person consents because of threats of force or terror; or
(d) the person consents because he/she is unlawfully detained: s.61H(4).
Factors (a), (b) and (d) are new.
In the Judicial Commission's summary of the new law it was pointed out that the common law has long recognised that a complainant who is asleep may be incapable of consenting.
R v Mayers (1872) 12 Cox CC 311 The provision in (b) however makes the fact of unconsciousness or sleep determinative of lack of consent.
A person is presumed not to have consented to sexual intercourse if the person is:
(b) under a mistaken belief that he or she is married to the other person; or
(c) under a mistaken belief that the intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means): (s 61HA(5)).
Controversially, consent can be negated, if:
(b) the person had sexual intercourse because of intimidatory or coercive conduct or other threat (other than a threat of force, which would always negate consent); Factor (b) was not previously recognised as a circumstance vitiating consent. It was a separate offence. Section s 65A (now repealed) dealt with this situation (
R v Aiken (2005) 63 NSWLR 719). or
(c) the person has sexual intercourse because of the abuse of a position of authority or trust: (s 61HA(6)).
An accused 'knows' that the person was not consenting if he or she:
(b) is reckless as to whether the person consents; or
(c) has no reasonable grounds for believing that the other person consents: (s 61HA(3).
For the purpose of determining knowledge of lack of consent, the jury is to have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether the complainant consents, but excluding any self-induced intoxication on the part of the accused. Where the common law applies, an accused can say he believed the complainant was consenting, even if there were no reasonable grounds for such a view (
DPP v Morgan  AC 192).
Section 61HA (3)(c) introduces an objective element into any assessment. It is a significant departure from both the pre-Act statutory position and the common law.
Critically, the new provisions do not apply to other sexual offences, such as indecent assault. Commonly an indictment contains both sexual assault and indecent assault charges. A judge will now need to instruct the jury on two quite different definitions and applications of 'consent' and two different methods of proof: one objective, the other, subjective. These results from an act which was intended to improve the plight of victims and make the judge or jury's job easier!
Keeping Serious Sex Offenders in Custody
Following the High Court's decision in
Fardon v The Queen (2004) 223 CLR 575 that laws keeping serious sex offenders in custody were lawful, New South Wales enacted the
Crimes (Serious Sex Offenders) Act 2006. The first orders have been made against serious sex offenders requiring them to stay in custody after their sentence is served or be subject to conditional release on a supervision order.
The Court of Appeal has approved a very broad test for what constitutes the 'likely' risk that will justify an order. To date all applications for orders have been granted.
Tillman v Attorney General NSW  NSWCA 327, Winters v
Attorney General NSW  NSWCA 33 All but three offenders were detained. One of those released on a supervision order
Cornwall v Attorney General NSW  NSWCA was so upset by the electronic bracelet he was forced to wear, and so disorientated after 15 years of custody, that he breached his reporting conditions immediately and has been returned to custody. Another
State of NSW v Brookes  NSWSC 473 per Grove J. One other Mr Hadson remains in the community under supervision
Attorney General for the State of New South Wales v Hadson  NSWSC 140 has been accused of breaches and has been returned to custody after about a fortnight of severely restricted freedom.
Fears that challenges to the Act might succeed led to amendments to the
Crimes (Serious Sex Offenders) Act 2006, before those challenges had in fact succeeded. As it was, the fears were groundless. The Court of Appeal, while it did not uphold the more extreme submissions of the Crown, certainly did not give anything to the defence.
The effects of the Amendments are as follows:
* The primary object of the
Crimes (Serious Sex Offenders) Act 2006 is now to ensure the safety and protection of the community; rehabilitation is only a secondary consideration* The
Bail Act 1978 is also amended to create a presumption against bail for persons accused of breaching supervision orders under the
Crimes (Serious Sex Offenders) Act 2006. The amendments now allow for the State of New South Wales to apply for supervision and continuing detention orders.* Additional powers are given to the Commissioner of Corrective Services. It can be a condition of a supervision order that the offender reside at an address approved by him or her.* If the Court of Appeal remits a matter to the Supreme Court for decision after the hearing of an appeal, any order the subject of the appeal remains in force.There are now further amendments before Parliament seeking to add new categories of offender to those who can be detained. Courts and Crimes Legislation Amendment Bill 2008- awaiting assent as at 25/6/2008. The government has promised to open hostels in which serious sex offenders and those on parole can be adequately supervised. The first is expected to open in September 208. Major problems to date have been:
* A refusal by the government to accept that risk of re-offending can be managed without the 'offender' having to undergo an intense sex offender treatment programme in custody.* A refusal to fund treatment in the community for those categorised as high risk sex offenders.* A refusal to fund or provide supervised accommodation.* A surveillance regime that is punitive not therapeutic.
How do we cope in a world of constant change?
What do we do when every 'win' is pyrrhic? I am claiming a record here: This year alone three bills have been introduced into the NSW Parliament dealing specifically with cases I have been briefed in by the LAC- Cornwall and Winters (changes to the
Crimes (Serious Sex Offenders) Act; the 13 young men Juvenile Justice are seeking to move to adult gaols- Amendments to the
Children's (Criminal Procedure) Act and the
Children's (Detention Centres) Act; and Cribb - restrictions on applications for the determination of life sentences in the
Crimes (Sentencing Procedure) Act-
Crimes (Sentencing Procedure) Amendment (Life Sentences) Bill 2008. I expect a Bill reversing or changing the High Court's decision in
CTM any day!
We keep going to court. We do our job and we do it well.
We keep defending those whom the popular press say are indefensible. We learn about the new laws. We adapt them and adapt our court performance to the new demands.
We work out how to keep winning.
Andrew HaeslerCarl Shannon Chambers25 June 2008