WGC v The Queen [2007] HCA 58

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

WGC APPELLANT

AND

THE QUEEN RESPONDENT

WGC v The Queen

[2007] HCA 58

12 December 2007

A20/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

D H Peek QC with A J Crocker for the appellant (instructed by Scammell & Co)

P Brebner QC with S Gill for the respondent (instructed by Director of Public Prosecutions (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

WGC v The Queen

Criminal law – Offences – Elements of offence – Information – Section 49(3) of the Criminal Law Consolidation Act 1935 (SA) ("the Act") created the offence of having sexual intercourse with a person of or above the age of 12 years and below the age of 17 years – Section 49(4) of the Act provided a defence to the offence when the complainant was of or above the age of 16 years and the accused believed on reasonable grounds that the complainant was of or above the age of 17 years – The Particulars of Offence alleged that the appellant had sexual intercourse with the complainant when she was aged 13 – The appellant alleged that sexual intercourse occurred when the complainant was aged 16 and that he believed on reasonable grounds that she was of or above the age of 17 years – The jury convicted the appellant – Whether the date of the offence was a material particular that had to be proved beyond reasonable doubt – Relevance of the conduct of the trial to whether the date was a material particular – Relevance that the elements of the offence were admitted – Whether the prosecution should have amended the Particulars of Offence to allege alternative dates – Whether the defence in s 49(4) of the Act was available to the offence as alleged in the Particulars of Offence.