Citation: R v Loiterton [2019] NSWDC 166
Court: District Court of New South Wales
Date: 2 May 2019
Judge: Haesler SC DCJ
Background
The accused, a 19-year-old male, faced four counts of sexual intercourse with a child contrary to s 66C(1) of the Crimes Act 1900 (NSW). The complainant was 13 years old at the time of the alleged offences in November 2017. The co-accused was said to have introduced the accused to the complainant and instructed the complainant to lie about her age.
The prosecution's evidence included material indicating the complainant told the accused she was 17 or 18 years old at the co-accused's direction. The complainant also said she did not correct the accused when he assumed she was in Year 12, and she told him she worked at McDonald's. The prosecution accepted that the complainant could physically be mistaken for someone older than 16.
The acts of sexual intercourse were not in dispute. The sole contested issue at the pre-trial hearing was whether a defence of honest and reasonable mistake as to the complainant's age could, as a matter of law, be left to the jury.
Legal Issues
- Whether the common law defence of honest and reasonable mistake of fact (sometimes called the Proudman v Daymon defence) is available to an accused charged under s 66C(1) of the Crimes Act 1900, which covers sexual intercourse with a child aged between 10 and 14.
- Whether the High Court's reasoning in CTM v The Queen (2008) 236 CLR 440, which confirmed the defence was available under s 66C(3), extends to s 66C(1) by logical implication.
- Whether the legislative history of child sexual offences in New South Wales demonstrates a parliamentary intention to impose absolute liability for offences under s 66C(1), thereby excluding the common law defence.
Decision
The court held that the defence of honest and reasonable mistake of age is available to an accused charged under s 66C(1) of the Crimes Act 1900. Haesler SC DCJ ruled that, if an evidentiary foundation for the defence was raised at trial, the question would be left to the jury.
The prosecution argued that, since at least 1921, the offence of sexual intercourse with a child under 14 had been one of absolute liability, and that neither the repeal of the former statutory defence in s 77(2) nor any subsequent amendment introduced a mistake-of-age defence for this category of offence. The court acknowledged this historical argument had force, and that the Court of Criminal Appeal in CTM v R [2007] NSWCCA 131 had similarly described the offence as one of absolute liability in respect of age.
Haesler SC DCJ nonetheless applied the majority reasoning from CTM v The Queen, in which the High Court confirmed that courts should presume Parliament does not intend to abrogate the common law principle of honest and reasonable mistake unless it does so by express language or necessary implication. The court found that the wording of s 66C(1) itself did not exclude the Proudman v Daymon defence, and that reliance on legislative history alone was insufficient to demonstrate the necessary parliamentary intention to exclude it from one subsection but not another within the same section.
The court expressly acknowledged the competing policy arguments, noting that the greater the gap between a child's actual age and 16, the less likely in practice that a claimed belief would be found reasonable by a jury. However, the court treated those policy considerations as matters for Parliament, not the courts.
Orders Made
• The defence of honest and reasonable mistake of fact is available to the accused in relation to s 66C(1) Crimes Act
• The defence will be left to the jury if an evidentiary foundation for it is raised at trial
Key Takeaways
- The District Court held that the common law defence of honest and reasonable mistake of age is available as a matter of law under s 66C(1) of the Crimes Act 1900, with the question to be left to the jury where an evidentiary foundation exists.
- The reasoning in CTM v The Queen (2008) 236 CLR 440, although technically confined to s 66C(3), was applied by analogy: courts should not construe an offence provision as displacing the common law Proudman v Daymon defence absent express statutory language or necessary implication.
- Legislative history showing a long-standing policy of absolute liability for the s 66C(1) offence was not, in the court's view, sufficient on its own to demonstrate the necessary parliamentary intention to exclude the common law defence from one subsection of a section while another subsection carries the defence.
- Where the defence is raised, the burden falls on the prosecution to disprove that the accused held an honest and reasonable belief the complainant was aged over 16. The practicability of such a belief is a jury question, informed by the extent of the age gap involved.
- This decision is a first-instance ruling and expressly noted the existence of contrary arguments; it does not represent a final authoritative statement of the law in New South Wales on this question.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3), 77(2)
- Crimes (Girls Protection) Act 1910 (NSW)
- Crimes (Girls Protection) Act 1911 (NSW)
- Crimes (Amendment) Act 1924 (NSW)
- Crimes (Child Assault Amendment) Act 1985 (NSW)
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Crimes Legislation Amendment (Child Sexual Abuse) Act 2003 (NSW)
- Criminal Law Amendment Act 1883
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Evidence Act 1995 (NSW)
Cases
- CTM v The Queen [2007] HCCA 25; (2008) 236 CLR 440
- CTM v R [2007] NSWCCA 131
- Proudman v Daymon [1941] HCA 28; (1941) 67 CLR 536
- He Kaw Teh v The Queen (1984-85) 157 CLR 523
- Hardgrave v The King [1906] HCA 47; (1906) 4 CLR 232
- Thomas v The King [1937] HCA 83; (1937) 59 CLR 279
- Zayat v R [2016] NSWDC 166
- Lavender v The Queen (2005) 222 CLR 67
- The Queen v Tolson (1889) 23 QBD 168
- Prince v R (1985) LR 2 CCC 154
- Chard v Wallis (1998) 12 NSWLR 453
- Binksin v Watson (1990) 48 A Crim R 33
- Mathieson v Burton (1971) 124 CLR 1