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Court of Criminal Appeal 27 March 2009

Johnston v R

[2009] NSWCCA 82

Sexual offences
CRIMINAL LAW

Citation: Johnston v R [2009] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 27 March 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The appellant pleaded guilty in the District Court to three counts of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900. The offences arose from a single night in November 2004 in a Mittagong park, involving a 14-year-old complainant and the then 23-year-old appellant. Throughout proceedings, the appellant maintained that he had genuinely believed the complainant was 16 or older, pointing to her comments during the evening about holding a learner's driving permit.

The appellant initially pleaded not guilty. However, in May 2007 this Court delivered judgment in CTM v R, holding that an honest and reasonable mistake of fact as to a complainant's age was not available as a defence to a charge under s 66C(3). Relying on legal advice about the effect of that ruling, the appellant changed his pleas to guilty in August 2007 and was sentenced in February 2008.

Then, in June 2008, the High Court reversed the position in CTM v The Queen, holding by a majority of six to one that the common law defence of honest and reasonable mistake of fact as to age was indeed available to a charge under s 66C(3). The High Court confirmed that such a belief, if honestly and reasonably held, is an answer to the charge, with the prosecution ultimately bearing the burden of disproving it beyond reasonable doubt. The appellant then appealed his convictions on the ground that a miscarriage of justice had occurred.

  • Whether the convictions should be set aside on the basis that the appellant had suffered a miscarriage of justice
  • Whether guilty pleas entered in reliance on a legal authority that is subsequently overturned by a higher court can be regarded as genuine admissions of guilt
  • Whether the integrity of the pleas was sufficiently undermined to warrant their being quashed

Decision

The Court of Criminal Appeal allowed the appeal, with all three judges agreeing in the reasons delivered by Buddin J. The Crown properly conceded that a miscarriage of justice had occurred, which streamlined the Court's analysis.

The Court recalled the established principles governing appeals from convictions entered on guilty pleas. Those principles, drawn from Hura v R and earlier authorities, recognise that a guilty plea may be set aside in exceptional circumstances, including where the plea was not a genuine admission of guilt, was entered without full knowledge of the relevant facts, or was made in circumstances undermining its integrity as a true confession.

The Court found that the appellant's pleas did not represent a genuine consciousness of guilt. He had consistently maintained that he believed the complainant was 16 or older. The sole reason he pleaded guilty was that the law, as it stood at the time of his plea, foreclosed that belief as a defence. Once the High Court restored the availability of that defence, the basis for his pleas fell away. He had lost a reasonable chance of acquittal by being denied the opportunity to run that defence at trial.

Orders Made

  • Appeal against conviction on all three counts allowed
  • Convictions quashed
  • Matter remitted to the District Court for trial

Key Takeaways

  • A guilty plea entered in direct reliance on a binding appellate authority, which is subsequently overturned by a higher court, may constitute a miscarriage of justice warranting the quashing of the resulting conviction.
  • Where the sole basis for a plea was legal advice that a particular defence was unavailable, and that advice later proves incorrect due to a change in the law, the integrity of the plea as a genuine admission of guilt is called into question.
  • The Court of Criminal Appeal confirmed that it will set aside a guilty plea when the material before it shows a real question about the accused's guilt and the plea was not truly attributable to a genuine consciousness of guilt, drawing on principles stated in Hura v R.
  • Under s 66C(3) of the Crimes Act 1900, following CTM v The Queen, an honest and reasonable belief that the other party to sexual activity was 16 or older is available as a defence, with the prosecution ultimately bearing the burden of disproving such a belief beyond reasonable doubt.
  • Quashing convictions does not terminate proceedings: the Court of Criminal Appeal remitted the matter for trial rather than entering acquittals, leaving the question of guilt to be determined afresh.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)

Cases
- CTM v R (2007) 171 A Crim R 371 (NSW Court of Criminal Appeal)
- CTM v The Queen (2008) 247 ALR 1 (High Court of Australia)
- Hura v R (2001) 121 A Crim R 472 (NSW Court of Criminal Appeal)