New South Wales Court of Criminal Appeal CITATION: Johnston v R [2009] NSWCCA 82 HEARING DATE(S): 27 March 2009 JUDGMENT DATE: 27 March 2009 JUDGMENT OF: McClellan CJatCL at 12; Buddin J at 1; Rothman J at 13 DECISION: Appeal allowed. Convictions quashed. Matter to be remitted to the District Court for trial. CATCHWORDS: Criminal law - sexual intercourse with a child aged between 14 and 16(x3) - appeal against conviction following pleas of guilty - pleas entered on basis of existing state of law - miscarriage of justice established when state of law altered LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment CTM v R (2007) 171 A Crim R 371 CASES CITED : CTM v The Queen (2008) 247 ALR 1 Hura v R (2001) 121 A Crim R 472 PARTIES: Matthew Lewis Johnston (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/7137 COUNSEL: J Manuell (Appellant) N Noman (Crown) SOLICITORS: S O'Connor (Legal Aid Commission) Appellant N Noman (Solicitor for Public Prosecutions) Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/41/0243 LOWER COURT JUDICIAL OFFICER: Toner DCJ LOWER COURT DATE OF DECISION: 27 February 2008 IN THE COURT OF CRIMINAL APPEAL 2006/7137 McCLELLAN CJ at CL BUDDIN J ROTHMAN J FRIDAY 27 MARCH 2009 MATTHEW LEWIS JOHNSTON v R Judgment 1 BUDDIN J: The appellant challenges his convictions in respect of three counts of sexual intercourse with a child aged between 14 and 16 years of age. The maximum penalty provided by s 66C(3) of the Crimes Act 1900 for that offence is imprisonment for 10 years. The appellant pleaded guilty to the offences and was sentenced to terms of imprisonment which were ordered to be served concurrently with one another. Those sentences were entirely subsumed within a sentence which was imposed upon him for an unrelated offence of armed robbery. The applicant is still in custody serving that sentence although the sentences for the sexual offences have now expired. 2 The sole ground of appeal is that the appellant has suffered a miscarriage of justice. Since the Crown has quite properly conceded that a miscarriage of justice has occurred, I can refer briefly to the somewhat unusual background circumstances of the case. 3 An agreed statement of facts was placed before the sentencing judge to which it will be necessary to make some reference. At the time of the incident the complainant, MJW, was aged 14 whilst the appellant was 23. Between 8 pm on Saturday 27 November and 6 am on Sunday 28 November 2004, the appellant, MJW and a number of other people (including "JB", a friend of MJW's) sat in a park in Mittagong drinking alcohol and socialising. The appellant and MJW were unknown to each other prior to this night. At one point in the evening, the appellant and MJW walked away from the group to a darkened area of the park. As they left the group, JB asked MJW if she wanted JB to accompany them but MJW replied that she did not. JB later approached the appellant and MJW in the darkened area of the park and enquired as to whether MJW was "alright". MJW said that she was "fine" and JB returned to the group. A short time later the appellant and MJW also returned to the group. 4 The group went to the Mittagong RSL club at around 11.30 pm and purchased more alcohol. They then returned to the park where they continued to drink. Some time after midnight the appellant asked MJW to again accompany him away from the group. MJW agreed and they walked to a secluded area of the park. There, the appellant put his jumper on the ground so that MJW could lie down on it. The appellant lifted MJW's skirt and removed her underwear before performing cunnilingus on her (Count 1). MJW then fellated the appellant (Count 2) following which the appellant and MJW had penile vaginal intercourse (Count 3). At about 3 am the appellant left the park with a friend of his (AE). At about 5.30 am MJW awoke and discovered that cash and JB's mobile phone had been taken from her bag. The bag had been left with AE whilst MJW and the appellant had gone to the secluded area of the park. MJW and JB went looking for AE's house in an endeavour to retrieve the missing property. Another friend of theirs talked them out of doing so. It was against that background that MJW told JB that "I'll just charge him with rape". She then reported the matter to police. Semen was located on a vaginal swab taken from MJW. DNA analysis of the sample matched the appellant's DNA profile. 5 The Agreed Facts contained the following paragraph: About 8.40 am on 14 December 2005 [the appellant] was arrested at his home in Mittagong. At Bowral Police Station he agreed to be interviewed. During the interview he admitted the 3 episodes of sexual intercourse with [MJW]. He stated that [MJW] was a consenting and willing participant, and he was unaware she was under the age of 16 years. He claimed [MJW] talked about driving on a learner's permit and he, therefore, thought she was 16 years old. 6 The appellant also gave evidence during the course of the sentence proceedings wherein he reiterated his belief as to MJW's age. He said: She, during the night, multiple times she'd told me how, well told everyone how excited she was about driving her Mum's car and everything like that. Said that she'd had a learner's permit…In my eyes you have to be 16 to get your licence. Like she didn't look under the age of 16 either … 7 He also gave evidence, which the sentencing judge accepted, that the sole basis upon which he had pleaded guilty was because of legal advice which he had received, to the effect that his state of belief as to MJW's age was no defence to the charges. He was not cross-examined about his state of belief. The sentencing judge proceeded to sentence him upon the basis that the acts of intercourse were consensual. 8 As I have said, the incident which gave rise to the charges being laid against the appellant occurred on 28 November 2004. As has also been indicated, the appellant was charged with these offences on 14 December 2005. He initially entered pleas of not guilty. However, on 24 May 2007 this Court delivered judgment in CTM v R (2007) 171 A Crim R 371. It was held that the common law "defence" of honest and reasonable mistake of fact as to the child's age was not available as a defence to a charge brought pursuant to s 66C(3) of the Crimes Act. On 13 August 2007 having received the legal advice to which I referred earlier about the significance of that decision, the appellant entered pleas of guilty to the three counts in question. The sentencing judge was informed that the matter had been adjourned on several occasions to abide the outcome of the decision in CTM (supra). On 27 February 2008 the appellant was sentenced in the District Court. On 11 June 2008 the High Court, having earlier granted special leave, delivered judgment in CTM v The Queen (2008) 247 ALR 1. The High Court held, by a majority of 6 to 1, that the common law "defence" of honest and reasonable mistake of fact was available as a defence to a charge under s 66C(3). Gleeson CJ, Gummow, Crennan and Kiefel JJ, in a joint judgment said: The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years. The outcome of the present appeal turns upon what is involved in the concept of evidential burden in the context of the particular offence, and the particular ground of exculpation. (at par 35) 9 The relevant principles which govern a case such as this have been stated in a number of cases. In Hura v R (2001) 121 A Crim R 472, Spigelman CJ said: The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in Toro-Martinez (2000) 114 ACrimR 533 . A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty: . where the appellant "did not appreciate the nature of the charge to which the plea was entered": Ferrer-Esis (1991) 55 ACrimR 231 at 233. . where the plea was not "a free and voluntary confession": Chiron (at 220 D-E). . the "plea was not really attributable to a genuine consciousness of guilt": Murphy [1965] VR 187 at 191. . where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv (1986) 22 ACrimR 73 at 80. . where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt": Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995). . the "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt": Maxwell at 511; 186-187. . if "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt": Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320. Particularly pertinent for the present case is a frequently cited passage in the judgment of Badgery-Parker J in Davies where his Honour said: "If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial." (at paras 32-3) 10 It is common ground that, in the circumstances, the integrity of the appellant's pleas of guilty must be called into question. In placing reliance upon authority of this court which was subsequently overturned, the appellant lost the opportunity of defending the charges which were brought against him upon the basis of his belief as to the complainant's age. In so doing, he lost a reasonable chance of being acquitted of these charges. 11 I propose that the appeal against the convictions in respect of the three counts brought pursuant to s 66C(3) of the Crimes Act be allowed, that the convictions be quashed and that the matter should be remitted to the District Court for trial. 12 McCLELLAN CJ at CL: I agree with Buddin J. 13 ROTHMAN J: I also agree with Buddin J. 14 McCLELLAN CJ at CL: The orders of the court will be as proposed by Buddin J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.