Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Budrodeen v R [2014] NSWCCA 332 Hearing dates: 1 October 2014 Decision date: 01 October 2014 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; R A Hulme J at [13] Decision: Orders made 1 October 2014: 1. Leave to appeal against conviction granted and appeal allowed. 2. Convictions quashed. 3. Remit the matter to the District Court for further trial. Catchwords: CRIMINAL LAW - appeal against conviction - sexual offences against 15 year-old complainant - fundamental error in jury directions relating to consent and honest and reasonable mistake of fact - care needed when jury directed in the form of a question trail Legislation Cited: Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2003 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules Cases Cited: CTM v The Queen [2008] HCA 25; 236 CLR 440 He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 Proudman v Dayman [1941] HCA 28; 67 CLR 536 R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 Category: Principal judgment Parties: Adam Budrodeen (Applicant) Regina (Respondent) Representation: Counsel: Applicant (self-represented) Mr N Adams (Crown) Solicitors: Solicitor for Public Prosecutions File Number(s): 2011/339339 Decision under appeal Date of Decision: 2013-08-23 00:00:00 Before: Hock DCJ File Number(s): 2011/339339 Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of R A Hulme J. I agree with the orders proposed by his Honour. I also agree with the reasons for judgment of his Honour, but add the following additional comments. 3The reasons for judgment of R A Hulme J refer to question trails, which is common practice in some jurisdictions, including other States and Territories of Australia, and is becoming more commonplace in this jurisdiction. Such question trails can be of great use in complex trials but, as Hulme J has pointed out, extreme care must be taken that all issues are covered and that there are no gaps in the findings necessary to establish guilt (or otherwise). 4In the reasons for judgment of R A Hulme J, reference is made to the "defence" of honest and reasonable mistake of fact exemplified by the judgment in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. His Honour refers to it as a "defence", utilising quotation marks, because it is not in any real sense a defence but a matter which must be negatived by the Crown, once the accused has established the evidentiary onus of raising the ground: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 534-535; CTM v The Queen [2008] HCA 25; 236 CLR 440 at [8]. 5This is not the occasion to discuss, at length or otherwise, the necessary requirements for an honest and reasonable mistake to arise, nor the manner in which the Crown is required to negative it. 6It is essential to understand that an honest and reasonable mistake as to fact must be a mistake which, if the facts that were honestly believed were true, would render the act innocent, not simply one that rendered the accused guilty of a different criminal offence: R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 and, in particular, the Dixon CJ at 385-386. The fact that Dixon CJ was in dissent in R v Reynhoudt does not detract from the statement of principle. 7In CTM v The Queen the High Court (Gleeson CJ, Gummow, Crennan and Kiefel JJ) postulated the question particularly relevant to the current proceedings at [15] in the following way: "[15] We have referred to Sir Samuel Griffith's Draft Code as a convenient reference point to illustrate certain considerations that might reasonably be expected to be present in the mind of anyone framing legislation on this topic. Legislation making it an offence for a male to have sexual relations with a female under a certain age commonly has differentiated between females of various ages, ranging through degrees, from infants of tender years, to people who might be mature adolescents. (Concepts of maturity themselves vary over time. There was a time when the age at which a female could marry was 12; hence the need to distinguish "unlawful" carnal knowledge.) We leave to one side, for the moment, the way in which such laws differentiated between heterosexual and homosexual activity. In dealing with conduct involving sexual relations with a female at the higher end of whatever range is chosen, such legislation typically addressed the possibility of an honest and reasonable mistake as to age. This is a problem inherent in the nature of the issue with which such legislation is concerned. When Parliament stipulates that, regardless of any question of consent, it is a serious crime for a male to have sexual relations with a female under a certain age, it is impossible to ignore the case of an alleged offender who honestly and reasonably believes that the female is above the specified age. It would be absurd to suggest that honest and reasonable mistakes of that kind are never made. When they occur, how is the law to deal with them? A similar (but not identical) answer was given in almost all examples of legislation on this topic in Australian jurisdictions, and in countries of a similar legal background." 8The fact that in the current proceedings the sexual contact was male upon male makes no difference to the question posed and the answer implicitly provided. As a consequence, in the current proceedings, if the jury were to have determined guilt on the basis of lack of consent, which may have been the result of following the question trail supplied, even if there were an honest and reasonable mistake as to the age of the victim, the lack of consent would result in the appellant being guilty of a different offence to that which was charged and not rendering the accused innocent. 9In the foregoing scenario, even if, as R A Hulme J has noted, the jury may have determined guilt without answering the fundamental question as to reasonable and honest mistake as to the age of the victim, the accused would be guilty of the offence charged. This results from the fact that the victim was under the age of 16 and the defence of reasonable and honest mistake of fact, in circumstances where the sexual conduct was not consensual, does not relieve the accused of criminal conduct. In those circumstances, even if the defence of reasonable and honest mistake were not determined, one would be minded, with one major qualification, to exercise the power reposed in this Court by the proviso. 10As Hulme J has most eloquently stated, the fundamental difficulty with the foregoing approach is that the essential issue in the trial, namely, whether the Crown has negatived the existence of a reasonable and honest mistake as to the age of the victim, may never have been determined by the jury. 11Further, if one were to rely on the non-consensual nature of the conduct in question, as distinct from the age of the victim, one must then ask the further question whether there was an honest and reasonable mistake as to whether the victim was consenting. This was not put to the jury and, therefore, reasonable and honest mistake may still have been available, but not answered by the jury. The proviso cannot, in those circumstances be utilised. 12For those further reasons, together with that contained in the reasons for judgment of R A Hulme J, I join in the orders proposed by R A Hulme J. 13R A HULME J: At the conclusion of the hearing of this matter on Wednesday 1 October 2014 the Court pronounced orders allowing the appeal, quashing the applicant's convictions and remitting the matter for retrial. These are my reasons for joining in the making of those orders. 14The applicant, Adam Wayne Budrodeen, was tried before her Honour Judge Hock and a jury in the District Court at Newcastle in February 2013 in respect of two counts of aggravated indecent assault and one count of sexual intercourse with a person between 14 and 16 years of age. He was found guilty of each offence and on 23 August 2013 was sentenced to imprisonment for an aggregate term of 6 years with a non-parole period of 4 years. 15The applicant sought leave to appeal against both conviction and sentence. He formulated 19 grounds of appeal which were supported by written submissions. They were characterised in the written submissions for the Crown as raising matters of the applicant's personal opinions about the evidence led against him at trial and making unsubstantiated accusations of impropriety against prosecution witnesses and lawyers. They also raised matters that were not the subject of complaint or were not in issue at the trial at all. They are all matters concerning which leave was required, either pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) or r 4 of the Criminal Appeal Rules. 16The Crown, however, identified a more fundamental difficulty which was brought to the attention of the Court and to the applicant in compliance with its general duty to act with fairness and in the interests of the administration of justice. Mr Adams, counsel for the Crown, is to be commended for this. The matter concerns the way in which the trial judge directed the jury as to the essential elements of the offences; in other words, the matters the Crown was required to establish beyond reasonable doubt before the jury could return any verdict of guilty. 17The offences in question were sexual intercourse with a person who is of or above the age of 14 years and under the age of 16 years (s 66C(3) of the Crimes Act 1900 (NSW)) and indecent assault upon a person under the age of 16 years (s 61M(2)). The factual basis of the prosecution case can be described briefly. It is convenient to quote from the Crown submissions. "The complainant was a male aged 15 years. On the afternoon of 23 October 2011 he attended the bistro at the Gateway Hotel with his family. Around 7:00pm his parents left the hotel on their motorbike. It was intended that the complainant catch a taxi home. A taxi was called and arrived at the hotel around 7:30pm. The complainant got into the taxi, which was driven by the applicant. The applicant drove off and he and the complainant started conversing. The applicant put his hand in the complainant's lap and rubbed his penis through his clothing [Count 1]. The applicant pulled over in a street near the applicant's home. He got into the back of the taxi and suggested that the complainant do the same. The complainant complied. The applicant pulled down the complainant's jeans and underpants and sucked the complainant's penis, while holding it [Count 2]. The applicant then tongue kissed the complainant [Count 3]. The applicant continued to suck the complainant's penis until he ejaculated. The complainant pulled up his pants and went back to the front seat. The complainant directed the applicant to drop him at a laneway near his house. He arrived home at about 7:50pm. He went with his family to the cinema that night. When they got home he went to bed but could not sleep. Late that night he told his mother about what had happened. The police were contacted." 18The defence case involved acceptance that the sexual activity as described by the complainant occurred. However it was his case that the complainant had told him that he was aged 16, thus raising an issue about whether the Crown could disprove beyond reasonable doubt that, whilst he was in fact mistaken as to that fact, it was a belief which was honestly held on reasonable grounds. Generally as to the "defence" of honest and reasonable mistake of fact, see Proudman v Dayman [1941] HCA 28; 67 CLR 536 and CTM v The Queen [2008] HCA 25; 236 CLR 440. 19Aside from the mistake as to the complainant's age, the applicant's case also involved a claim that the complainant was a willing participant in the sexual activity. But s 77 of the Crimes Act provides that the consent of the child to whom a charge relates shall be no defence to a charge under, inter alia, ss 61M(2) and 66C. The section has, relevantly, been in this form since amendments were made by the Crimes Amendment (Sexual Offences) Act 2003 (NSW) which took effect on 13 June 2003. 20The judge directed the jury, both in writing and orally, to the effect that consent was an element of each offence. She directed that if the Crown proved beyond reasonable doubt that the complainant did not consent to the sexual activity of the applicant, then provided the jury were also satisfied that the complainant was under the age of 16 and that the applicant committed the physical act alleged, then the jury should return a verdict of guilty. She directed the jury that if they were satisfied of the age and physical act elements but not of the consent element, only then should they consider whether the Crown had established beyond reasonable doubt that the accused did not have an honest belief on reasonable grounds that the complainant was aged 16 or above. 21To illustrate, the following is from the written directions concerning the sexual intercourse (s 66C(3)) offence (quoting only relevant parts): Questions for the Jury 1. Are you satisfied beyond reasonable doubt that the accused had sexual intercourse with [the complainant], that is, the accused sucked the complainant's penis? If yes, go to question 2. If no, find the accused not guilty. 2. Are you satisfied beyond reasonable doubt that the complainant was under 16? If yes, go to question 3. If no, find the accused not guilty. 3. Are you satisfied beyond reasonable doubt that the sexual intercourse was without the consent of the complainant? If yes, find the accused guilty. If no, go to question 4. [Some definitions of "sexual intercourse" and "consent" were set out.] 4. Are you satisfied beyond reasonable doubt that either: (a) the accused did not honestly believe that the complainant was 16 or above the age of 16 years? or (b) the accused did not have reasonable grounds to believe that the complainant was 16 or above the age of 16 years? If yes, find the accused guilty. If no, find the accused not guilty. 22Similar written directions were given in relation to the aggravated indecent assault offences. The written directions were replicated in the oral directions. 23Directing the jury in this way was erroneous in that it required the jury to be satisfied beyond reasonable doubt about an issue that, having regard to s 77, was entirely irrelevant. But in directing the jury as to the essential elements of the offences in the form of a question trail, the jury were given a prescriptive chain of reasoning to follow. The directions left it open to the jury to by-pass the single critical issue in the case (honest and reasonable mistake as to the complainant's age) and to convict the applicant on the basis that they were satisfied of the irrelevant fact that the complainant did not consent. 24None of this should be seen as criticism by this Court of the practice of using the question trail approach to directing a jury as to the elements of an offence. This case simply serves to illustrate that particular care is needed when prescribing a sequential process of reasoning. It is trite to observe as well that care is required in the identification of the elements of the offence; a matter about which the trial judge was not well served by the trial advocate for the Crown and the experienced counsel who appeared for the applicant. 25The Crown fairly conceded that the misdirection was so fundamental that there was no occasion to consider applying the proviso (that there was no substantial miscarriage of justice) and dismissing the appeal. It was conceded that orders should be made in the terms mentioned at the beginning of my judgment. ********** 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. Decision last updated: 19 December 2014