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District Court 11 May 2016

R v James Zayat

[2016] NSWDC 166

Sexual offences
HONEST AND REASONABLE MISTAKE CHILD SEXUAL ASSAULT <16 YEARS

Citation: [2016] NSWDC 166
Court: District Court of New South Wales
Date: 11 May 2016
Judge: Antony Townsden DCJ

Background

The accused was arraigned on an indictment containing three counts, including sexual intercourse with a child under 14 years (s 66C(1) of the Crimes Act 1900) and two counts of committing acts of indecency on a child under 16 years (s 61M(1) and s 61M(2)). He pleaded not guilty to all counts. There was no dispute that the complainant was 13 years of age at the relevant time.

The accused gave notice under s 143 of the Criminal Procedure Act 1986 of his intention to raise the defence of honest and reasonable mistake of fact, specifically that he believed the complainant was 16 years of age. His record of interview confirmed that belief.

The Crown opposed the availability of that defence, arguing that, because the complainant was under 14, the Proudman v Dayman principle (discussed below) had no application and the Crown was not required to disprove any such honest and reasonable belief.

  • Whether the defence of honest and reasonable mistake of fact is available to an accused charged with sexual intercourse with a child under 14 years under s 66C(1) of the Crimes Act 1900, following the 2003 legislative amendments.
  • Whether the repeal of s 77(2) in 2003 (which had previously restricted that defence) now leaves the Proudman v Dayman principle available without limitation as to the complainant's age.
  • Whether the Crown is required to disprove an honest and reasonable belief that the complainant was 16 years of age, even where the complainant was in fact under 14.

Decision

The court identified the common law principle established in R v Tolson (1889): an honest and reasonable belief in circumstances that, if true, would make the act innocent has always constituted a valid defence. Before 2003, New South Wales legislation expressly confined this principle so that it did not apply where the complainant was under 14. However, the 2003 amendments repealed s 77(2), which contained that express limitation.

The High Court in CTM v The Queen [2008] 236 CLR 440 confirmed that, following the 2003 amendments, honest and reasonable mistake of fact was available for charges involving complainants aged between 14 and 16 under s 66C(3). The plurality in that case also stated that courts should presume Parliament does not intend to abrogate fundamental common law principles of criminal responsibility unless it does so expressly or by necessary implication.

His Honour held that, because the current legislation is silent on any age-based restriction, the court cannot reintroduce a limitation that no longer appears in the Act. To do so would amount to judicially inserting words into legislation where Parliament has not placed them. If Parliament intended to preserve the pre-2003 restriction for complainants under 14, it was for Parliament to say so expressly.

The court also noted the important caveat drawn from CTM v The Queen (per Hayne J): if an accused honestly believed the complainant was older than 13 but still under 16, that belief would not make the conduct innocent, as the complainant would still fall within a protected age range. In the present case, however, the accused's stated belief was that the complainant was 16, and the evidentiary onus to raise the defence was satisfied. The Crown is therefore required to disprove that honest and reasonable mistake.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Following the 2003 repeal of s 77(2) of the Crimes Act 1900, the District Court held that no express legislative restriction remains on the availability of honest and reasonable mistake of fact for sexual offences against children under 14.
  • The common law Proudman v Dayman principle requires the Crown to disprove honest and reasonable mistake of fact where an accused raises sufficient evidence of a genuine belief that the complainant was 16 years of age, even if the complainant was in fact under 14.
  • Courts should not reintroduce legislative restrictions that Parliament has repealed, even if that repeal may have been inadvertent; any correction is a matter for Parliament.
  • A belief that the complainant was older than the actual age but still under 16 will not satisfy the defence, as the conduct would remain criminal regardless. The defence is only effective where the accused's belief, if true, would have rendered the act innocent.
  • This decision applies the High Court's reasoning in CTM v The Queen beyond the 14-to-16 age bracket and extends its logic to the under-14 provisions, though it does so on the basis of the current silence of the legislation rather than any broader policy principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66C(1), 66C(3), 77(1), 77(2) (repealed 2003)
- Criminal Procedure Act 1986 (NSW), s 143

Cases
- R v Tolson (1889) 23 QBD 168
- CTM v The Queen [2008] 236 CLR 440
- Proudman v Dayman (1941) 67 CLR 536