R v James Zayat [2016] NSWDC 166

District Court New South Wales

Medium Neutral Citation: R v James Zayat [2016] NSWDC 166 Hearing dates: 10-17 and 23 May 2016 Decision date: 11 May 2016 Jurisdiction: Criminal Before: Antony Townsden DCJ Decision: Pre-trial ruling re availability of honest and reasonable mistake of fact Catchwords: Honest and reasonable mistake; commit act of indecency child < 16 years; child sexual assault <16 years; Legislation Cited: Criminal Procedure Act (1986); Crimes Act (1900); Cases Cited: R v Tolson (1889) 23 QBD 168 at 181; CTM v The Queen [2008] 236 CLR 440 Proudman v Dayman (1941) 67 CLR 536 Category: Procedural and other rulings Parties: Director or Public Prosecutions (Crown) James Zayat (Accused) Representation: Counsel: C Everson (Crown) G Scragg (Accused) File Number(s): 2014/116599 Publication restriction: Identification of complainant

Judgment 1. Pursuant to s 143 of the Criminal Procedure Act (1986), notice has been provided to the Crown that the accused intends to raise honest and reasonable mistake that the complainant was aged 16 at the time of the allegation. The accused has been arraigned on an indictment containing three counts to which he has entered pleas of not guilty. The first count is pursuant to s 66C(1) of the Crimes Act (1900). There is no dispute that at the time of the allegation the complainant was 13 years of age. 2. Section 66C(1) relevantly provides any person who has sexual intercourse with another person who is of or above the age of ten years and under the age of 14 years is liable for imprisonment for 16 years. Section 77(1) provides that consent of the child to whom the charge relates shall be no defence to a charge either under this section or the remaining counts on the indictment, being s 61M(2) and s 61M(1) respectively. 3. Counsel for the accused referred to the decision of CTM v The Queen [2008] 236 CLR 440 which held that honest and reasonable mistake of fact was available to an accused person in respect of an allegation under s 66C(3), which makes it an offence where a person has sexual intercourse with another person aged between 14 and 16. 4. The Crown, in its written submissions, submits: "It is not required to disprove any honest and reasonable mistake by the accused (the Proudman v Dayman principle) that the complainant was 16 years of age, because the complainant in the present matter was under the age of 14 years, namely 13 years." 5. After referring to the decision of CTM v The Queen and the legislative history of the statutory provision, the Crown submits that: "The history of the legislative scheme governing sexual offences against children shows that the legislature was concerned that in cases involving a child over 14 and under 16, that there may be scope for an honest and reasonable belief, however, at no stage would that defence be available in respect of a child under 14 years of age." 6. The common law principle of honest and reasonable mistake of fact was expressed by Cave J in R v Tolson (1889) 23 QBD 168 at 181 which is, as follows: "At common law an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act, has always been held to be a good defence." 1. There is no dispute that prior to the legislative changes in 2003 relating to this particular offence, this principle was confined to situations where the complainant was aged 14 years or above. It would appear that, prior to 2003, in respect of female complainants, at least in New South Wales, an accused person could not rely on having an honest and reasonable belief that the complainant was 16 years or over, when in fact the child was under the age of 14 years. 2. It must be understood that the principle is distinct from the issue of consent. The section provides that the Crown does not have to prove lack of consent where the complainant is under 16 years of age. Prior to the 2003 amendments to the provisions set out in s 77 (which effectively deleted any reference to an accused person having an honest and reasonable belief) the New South Wales legislature narrowly confined the circumstances where an accused person could raise the issue of having honest and reasonable mistake of fact. 3. However, the section as it is now is unambiguous as it only deals with the separate issue of consent. There appears no dispute that if counsel for the accused's submission is correct, it would result in a situation where the Crown would be required to disprove honest and reasonable mistake of fact, notwithstanding that prior to 2003 it was not required if the complainant was under the age of 14. 4. Gleeson CJ, Gummow J, Crennan J and Kiefel JJ in CTM v The Queen acknowledge this problem, as it pertained to complainants aged between 14 and 16 years, noting at para 32: "When, in the context of equalisation of laws relating to heterosexual and homosexual activity, in 2003, the New South Wales Parliament repealed s 77(2), and thereby abandoned the special defence that previously applied to heterosexual acts with under-age persons, it necessarily raised the problem of the possible application, to the now equalised, age-related, offences, of the Proudman v Dayman ground of exculpation, that is to say, honest and reasonable mistake of fact." 1. The judgment then went on to conclude (at para 25): "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." 1. For my part, I would also conclude that in circumstances where the legislation was silent on the issue, it is not for the Courts to effectively introduce a section of an Act of Parliament which no longer exists. It may well be an error made by the Parliament, however, if there is such an error, it should be addressed by Parliament where there is no ambiguity in the Act. Where Parliament intends to punish those persons who commit acts which he or she "honestly and reasonably believed to be lawful and right" there needs to be "the clearest and most indisputable evidence that such is the meaning of the act." (R v Tolson at 182). It should be noted that this in no way affects a person's criminal responsibility if, for instance, an accused honestly believed that the complainant was not the relevant age of between 10 and 14, but rather another age, but nevertheless below 16. Such a belief will not make the accused's conduct innocent (CTM v The Queen, Hayne J at para 174). 2. It would be quite an absurd situation that in following the High Court decision in CTM v The Queen, the Court would, however, limit the application of this principle by inserting an express limitation that is clearly not found in the legislation. There is no dispute that in the present case, the evidentiary onus is satisfied. The accused person's record of interview clearly sets out the accused's belief at the time, that is, he believed the complainant was 16 years of age. In those circumstances, the Crown is required to disprove honest and reasonable mistake by the accused.