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6
Court of Criminal Appeal 24 May 2007

CTM v R

[2007] NSWCCA 131

Also reported as (2007) 171 A Crim R 371
Sexual offences
CRIMINAL LAW OFFENCES CHILD SEXUAL ASSAULT CRIMINAL RESPONSIBILITY STATUTORY INTERPRETATION APPEAL

Citation: CTM v R [2007] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 24 May 2007
Judge(s): Hodgson JA, Howie J, Price J

Background

The appellant, who was under 18 at the time of the alleged offence, stood trial in the District Court alongside a co-accused on a charge of aggravated sexual assault under s 61J(1) of the Crimes Act 1900. The circumstance of aggravation relied upon was that the complainant was aged 15, that is, under 16. An alternative count of having sexual intercourse with a child aged between 14 and 16 in circumstances of aggravation under s 66C(4) was also presented to the jury.

The jury acquitted the appellant on both the primary charge and the aggravated alternative, but returned a guilty verdict on the statutory alternative of the non-aggravated offence under s 66C(3), having sexual intercourse with a child between 14 and 16. He was sentenced to imprisonment.

The appeal raised two distinct issues: first, whether a common law defence of honest and reasonable mistake as to the complainant's age was available following the 2003 repeal of s 77(2) of the Crimes Act; and second, whether the sentence was valid given that the sentencing judge had not complied with the Children (Criminal Proceedings) Act 1987.

  • Whether a Proudman v Dayman defence (honest and reasonable mistake of fact) was available to a charge under s 66C of the Crimes Act after the repeal of the statutory defence in s 77(2)
  • Whether the repeal of s 77(2) activated a common law mistake-of-age defence where none had previously existed
  • Whether the verdicts were unreasonable, given the jury's acquittal on the more serious alternative counts
  • Whether the sentence was invalid because the sentencing judge failed to comply with the requirements of the Children (Criminal Proceedings) Act 1987

Decision

The mistake-of-age defence. The central question was whether a defendant charged under s 66C could rely on the common law Proudman v Dayman defence, which allows an acquittal where an accused held an honest and reasonable belief in a state of facts that, if true, would make the conduct innocent. Before its repeal in June 2003, s 77(2) had provided a narrow statutory defence: applicable only where the accused and the child were not both male, it required the accused to prove on the balance of probabilities that the child was over 14, that the child consented, and that the accused reasonably believed the child was 16 or over.

The Court held that clear legislative intention ran against permitting the broader common law defence. The existence of the limited s 77(2) defence conveyed that Parliament had deliberately confined the scope of any mistake-based defence to that narrow form. Where both parties were male, or where the child was under 14, no such defence of any kind had been available, and it would be incongruous to read the repeal of s 77(2) as expanding, rather than restricting, available defences. The Court unanimously found that Parliament's intention was to remove defences, not to widen them.

Unreasonable verdict. The Court also rejected the argument that the conviction was unreasonable simply because the jury acquitted on the more serious counts. The verdict on the s 66C(3) offence was consistent with the evidence, and acquittals on alternative charges do not, without more, render a guilty verdict on a lesser charge unreasonable.

Sentence. The Crown conceded that the sentencing judge had failed entirely to consider the Children (Criminal Proceedings) Act 1987. Because the offence was not a "serious children's indictable offence" within the meaning of that Act, the judge was required to determine whether the appellant should be dealt with under Division 4 of Part 3 of that Act. The judge also failed to obtain a background report under s 25 of the Act. These omissions rendered the sentence invalid, and the matter was remitted to the District Court for resentencing.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence granted
  • Appeal against sentence allowed and sentence quashed
  • Matter remitted to the District Court for further determination

Key Takeaways

  • Following the 2003 repeal of s 77(2) of the Crimes Act 1900, no Proudman v Dayman (honest and reasonable mistake of age) defence is available to charges under s 66C. The Court of Criminal Appeal found the legislative intent was to restrict, not expand, available defences.
  • Where a limited statutory defence previously occupied a field, its repeal does not automatically revive or create a broader common law defence in that field, particularly where Parliament's intention to exclude such a defence is apparent from the legislative history.
  • Acquittals on more serious alternative counts do not automatically render a guilty verdict on a lesser alternative charge unreasonable; the verdict must be assessed on its own evidentiary foundation.
  • Where an offender was under 18 at the time of a non-serious children's indictable offence, a sentence imposed without any consideration of the Children (Criminal Proceedings) Act 1987, including the requirement to obtain a background report under s 25, is invalid.
  • The Court noted that the Crown bears an obligation to ensure the sentencing court is aware of the jurisdiction it is exercising, and identified the Crown's failure to draw the judge's attention to the relevant legislation as a serious dereliction of its duty to the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61J(2)(d), 66C(3), 66C(4), 66C(5)(g), 66E(1A), 71, 77(2) (now repealed)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 25
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Interpretation Act 1987 (NSW), s 31(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Proudman v Dayman (1941) 67 CLR 536
- Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297
- MFA v The Queen [2002] HCA 53
- He Kaw Teh v The Queen (1984) 157 CLR 523
- R v Tolson (1889) 23 QBD 168
- R v Hoang [2003] NSWCCA 237
- B v Director of Public Prosecutions [2000] 1 All ER 833
- The Queen v Lavender [2005] HCA 37
- Boulattouf v R [2007] NSWCCA 102

Note: The High Court subsequently granted special leave to appeal and dismissed the appeal: CTM v The Queen [2008] HCA 25.