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District Court 26 June 2023

R v Tan (No 2)

[2023] NSWDC 228

Sexual offences
CRIME TRIAL BY JUDGE ALONE SEXUAL OFFENCES AGAINST CHILDREN PRODUCTION OF CHILD ABUSE MATERIAL POSSESSION OF CHILD ABUSE MATERIAL

Citation: R v Tan (No 2) [2023] NSWDC 228
Court: District Court of New South Wales
Date: 26 June 2023
Judge: Abadee DCJ

Background

The accused faced five counts on indictment arising from his interaction with a complainant whose date of birth placed her at 12 years of age at the relevant time. Counts 1 and 2 alleged two separate acts of sexual intercourse with a child aged between 10 and 14 years, contrary to section 66C(1) of the Crimes Act 1900 (NSW). Counts 3 and 4 arose from the accused filming each of those acts on his mobile phone and alleged production of child abuse material. Count 5 was a rolled-up charge alleging possession of child abuse material between 12 June 2021 and 9 July 2021, comprising six videos and eighteen photographs stored on his device.

The accused did not contest the physical elements of any charge. He admitted having sexual intercourse with the complainant, filming those acts, and storing the material on his phone. The real contest in the trial turned entirely on his state of mind: specifically, whether he honestly and reasonably believed the complainant was 16 years old (turning 17) at the time of the relevant conduct.

The trial proceeded before a judge alone. The Crown did not call the complainant as a witness. The accused gave evidence and was cross-examined. His brother gave evidence and tendered a screenshot of the complainant's TikTok post in which she represented herself as 18.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that the accused did not hold an honest and reasonable, but mistaken, belief that the complainant was over 16 years of age (the common law ground of exculpation for counts 1 and 3)
  • Whether the accused proved on the balance of probabilities the statutory defence under section 91HA of the Crimes Act that he did not know, and could not reasonably have been expected to know, that he was producing or possessing child abuse material (counts 2, 4 and 5)
  • The significance of the Crown's decision not to call the complainant as a witness, and the proper content of a direction consistent with Mahmood v State of Western Australia (2008) 232 CLR 397
  • Whether the complainant had a tendency to misrepresent her age, and the weight to be given to that tendency evidence
  • The appropriate standard and considerations when an accused bears the legal burden of proving a statutory defence on the balance of probabilities, including the application of section 140(2) of the Evidence Act 1995 (NSW)
  • The different legal burdens applicable to the common law ground of exculpation (Crown bears onus beyond reasonable doubt) and the statutory defences (accused bears onus on the balance of probabilities), and whether different verdicts across the counts were a logical possibility

Decision

Issue 1: Common law ground of exculpation (Counts 1 and 3)

The court accepted that the accused had discharged the evidential burden. The Crown therefore bore the onus of disproving beyond reasonable doubt that the accused held an honest and reasonable, but mistaken, belief that the complainant was 16 (turning 17). The court found that, prior to the evening of 22 May 2021, the accused believed the complainant was well over 18, based on her physical appearance when he met her in person and the sexually explicit material she voluntarily sent him that evening (at [166]-[170]). The court accepted that the accused positively asked the complainant her age, distinguishing his conduct from cases where an accused simply proceeds on an assumption without inquiry (at [172]). Although the complainant's paused and apparently rehearsed response gave rise to some objective suspicion, the court was not satisfied that this compelled the accused to disbelieve her, given the other available inferences about her appearance and conduct (at [173]-[175]). Later matters relied on by the Crown, including the accused's Instagram messages, his failure to introduce the complainant to family, and the password containing her date of birth, were not found to fatally undermine his belief (at [182]-[188]). The court was not persuaded beyond reasonable doubt that the accused lacked the requisite honest and reasonable mistaken belief (at [199]). Verdicts of not guilty were entered on counts 1 and 3.

Issue 2: Statutory defence of innocent production and possession (Counts 2, 4 and 5)

For counts 2, 4 and 5, the accused bore the legal burden of proving the statutory defence on the balance of probabilities. The court directed itself that this assessment is shaped by the considerations in section 140(2)(a)-(c) of the Evidence Act, common law principles regarding sufficiency of evidence, the presumption of innocence, and the principle in Blatch v Archer that the capacity of the opposing party to contradict evidence is relevant to assessment of sufficiency (at [206]-[208]). Taking into account that the Crown did not call the complainant, the seriousness of the consequences if the defence failed, and reservations about the accused's general credibility, the court was nonetheless persuaded on the probabilities that the accused asked the complainant her age, honestly believed she was over 16, and that subsequent events did not actually or reasonably disabuse him of that belief (at [209]-[210]). The court found the statutory defence established for counts 2, 4 and 5 (at [212], [216], [223]).

Issue 3: The Mahmood direction and the Crown's failure to call the complainant

The court directed itself that it could take into account the absence of evidence from the complainant when assessing whether the Crown had proved its case, but that it could not speculate about what she would have said (at [110]). The court declined to go as far as drawing an inference adverse to the Crown under the principles in Jones v Dunkel, noting that neither party had invited an inquiry into the Crown's reasons for not calling her, and that such a direction would be inapposite in the absence of such an inquiry (at [107]-[109]). The absence of the complainant's evidence was particularly significant in the context of the statutory defences, where the Crown had the capacity to call her to contradict the accused but did not do so (at [209]).

Issue 4: Tendency evidence and credibility

The court was satisfied on the balance of probabilities that the complainant had posted a TikTok video representing herself as 18, establishing a tendency to misrepresent her age as older than her biological age (at [193]-[194]). That tendency evidence carried some probative weight in the accused's favour, particularly as it suggested that even further inquiry by the accused may not have disabused him of his belief (at [197]-[198]). However, the court declined to give the tendency evidence disproportionate weight, noting the 17-month gap between the TikTok post and the relevant events, and the qualitative difference in context between the two representations (at [196]). The court found the accused's credibility significantly undermined by his tendency to embellish and provide self-serving evidence (at [150]-[157]), though his voluntary admissions to police and willingness to provide detail about his sexual conduct were noted in his favour (at [158]).

Orders Made

  • Count 1: Not guilty
  • Count 2: Not guilty
  • Count 3: Not guilty
  • Count 4: Not guilty
  • Count 5: Not guilty

Key Takeaways

  • Where an accused raises a common law ground of exculpation of honest and reasonable mistake of fact in respect of a child sexual offence, the Crown bears the onus of disproving it beyond reasonable doubt; an accused who positively inquires about the complainant's age is in a materially stronger position than one who proceeds on an unexamined assumption (at [172], [199]).

  • The District Court confirmed that the burden of proving a statutory defence of innocent production or innocent possession under section 91HA of the Crimes Act rests on the accused on the balance of probabilities, shaped by section 140(2) of the Evidence Act, the common law principle in Blatch v Archer regarding the opposing party's capacity to contradict evidence, and the presumption of innocence (at [206]-[209]).

  • A Mahmood direction permits the trier of fact to take into account the absence of evidence from a particular witness when assessing whether the Crown has proved its case, but does not authorise speculation about what that witness would have said and does not, without more, support a Jones v Dunkel inference adverse to the Crown (at [107]-[110]).

  • Tendency evidence that a complainant misrepresented her age in a different context can be relevant to whether an accused could reasonably have been expected to discover the truth through further inquiry, but courts will not give such evidence disproportionate weight where there are qualitative differences in the contexts of the representations (at [196]-[198]).

  • An accused's honest but legally erroneous belief that the age of consent is 18 (rather than 16) does not disqualify him from invoking the ground of exculpation of honest and reasonable mistake of fact, provided his belief that the complainant was between 16 and 18 would, if correct, have rendered his conduct outside the operation of the relevant provision of the Crimes Act (at [130], [176]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61HA, 66C, 91FB, 91H, 91HA, 417
- Criminal Procedure Act 1986 (NSW) ss 133
- Evidence Act 1995 (NSW) ss 140, 141, 142

Cases
- Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corp (1985) 1 NSWLR 561
- ASIC v Hellicar (2012) 247 CLR 345
- Bell v State of Tasmania (2021) 395 ALR 589
- Blatch v Archer (1774) 98 ER 969
- Briginshaw v Briginshaw (1938) 60 CLR 336
- CTM v The Queen (2008) 236 CLR 440
- Dyers v R (2002) 210 CLR 285
- G v H (1994) 181 CLR 387
- He Kaw Tey v The Queen (1985) 157 CLR 523
- Ho v Powell (2001) 51 NSWLR 572
- Ibrahim v R [2014] NSWCCA 160
- Jiminez v The Queen (1992) 173 CLR 572
- Jones v Dunkel (1959) 101 CLR 298
- Mahmood v State of Western Australia (2008) 232 CLR 397
- R v Marland [2017] NSWCCA 277
- Morley v ASIC (2010) 247 FLR 140
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 444
- Payne v Parker [1976] 1 NSWLR 191
- Qantas Airways Ltd v Gama (2008) 167 FCR 537
- R v Marland [2017] NSWCCA 277
- R v Wiggins (No. 7) [2022] NSWSC 1249
- Rassi v R [2023] NSWCCA 199
- Roberts-Smith v Fairfax Media Publications Pty Ltd (No.41) [2023] FCA 555
- Robinson v R (No.2) (1991) 180 CLR 531
- RPS v R (2000) 199 CLR 620
- Schoffel v R [2023] NSWCCA 88