CTM v The Queen [2008] HCA 25

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

CTM APPELLANT

AND

THE QUEEN RESPONDENT

CTM v The Queen [2008] HCA 25

11 June 2008

S591/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC and A C Haesler SC with J S Manuell for the appellant (instructed by Legal Aid Commission of NSW)

D C Frearson SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

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

CATCHWORDS

CTM v The Queen

Criminal law – Sexual intercourse with child aged between 14 and 16 years –Whether common law ground of exculpation of honest and reasonable mistake of fact applies to offence under s 66C(3) of the Crimes Act 1900 (NSW) – Whether accused entitled to place reliance on honest and reasonable mistake of fact where conduct the subject of charge is denied.

Criminal law – Onus and standard of proof – Whether accused obliged to establish honest and reasonable mistake of fact – Whether accused obliged to "enliven" issue of honest and reasonable mistake of fact – Whether accused obliged to adduce evidence in support of contention of honest and reasonable mistake of fact – Whether there was sufficient evidential foundation for contention of honest and reasonable mistake of fact – Whether issue of honest and reasonable mistake of fact sufficiently raised at trial – Whether trial judge obliged to direct jury on issue of honest and reasonable mistake of fact – Adequacy of trial judge's directions to jury.

Criminal law – Appeal – Application of "proviso" – Whether there occurred substantial miscarriage of justice – Whether appellate court able to conclude that no substantial miscarriage of justice occurred where misdirection on onus and standard of proof is demonstrated.