The King v Rohan (a pseudonym) [2024] HCA 3

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, GLEESON AND JAGOT JJ

THE KING APPELLANT

AND

ROHAN (A PSEUDONYM) RESPONDENT

The King v Rohan (a pseudonym)

[2024] HCA 3

Date of Hearing: 12 October 2023

Date of Judgment: 14 February 2024

M33/2023

ORDER

1. Appeal allowed.

2. Set aside paragraphs 2 to 10 of the orders of the Court of Appeal of the Supreme Court of Victoria of 4 October 2022 and, in their place, order that the appeal against conviction is dismissed.

3. Remit the respondent's appeal against sentence to the Court of Appeal for rehearing.

On appeal from the Supreme Court of Victoria

Representation

E H Ruddle KC with J B Warren for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

T Kassimatis KC with G F Connelly for the respondent (instructed by Greg Thomas Barrister & Solicitor)

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

CATCHWORDS

The King v Rohan (a pseudonym)

Criminal law – Appeal against conviction – Criminal liability – Statutory complicity – Where s 324(1) of Crimes Act 1958 (Vic) provided, "if an offence ... is committed, a person who is involved in the commission of the offence is taken to have committed the offence" – Where s 323(1)(c) of Crimes Act provided person is "involved in the commission of an offence" if person "enters into an agreement, arrangement or understanding with another person to commit the offence" – Where respondent convicted of offences of supplying drug of dependence to a child and sexual penetration of a child under 12 on basis of ss 323(1)(c) and 324(1) – Where prosecution relevantly alleged respondent and two co‑accused entered into agreement, arrangement or understanding to supply cannabis to two complainants (aged 11 and 12), and then sexually penetrate complainant (aged 11) – Where element of supply offence that child in fact be under 18 years of age – Where element of sexual penetration offence that child in fact be under 12 years of age – Where knowledge of age not an element of either offence – Whether prosecution required to prove that accused knew, at time of entering agreement, ages of complainants or that complainants were under specified age – Whether substantial miscarriage of justice resulted from failure to direct jury to be satisfied beyond reasonable doubt that parties to agreement knew ages of complainants – Whether fault element in Giorgianni v The Queen (1985) 156 CLR 473 applicable to s 323(1)(c) – Whether prosecution required to prove that accused knew or believed, at time of entering into agreement, essential facts that made conduct an offence, where knowledge or belief not an element of the offence itself.