R v LOITERTON [2019] NSWDC 166

District Court New South Wales

Medium Neutral Citation: R v LOITERTON [2019] NSWDC 166 Hearing dates: 2 May 2019 Date of orders: 02 May 2019 Decision date: 02 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: The common law ground of exculpation of honest reasonable mistake applies to an offence under s 66C(1) Crimes Act 1900. Catchwords: CRIME – sexual offences – sexual intercourse with child aged between 10 and 14 years – whether common law ground of exculpation of honest and reasonable mistake applies to an offence under s 66C(1) Crimes Act 1900.

CRIMINAL PROCEDURE – trial – case management – pre-trial hearing – question of law – whether trial judge can direct jury on honest and reasonable mistake of fact.

WORDS and PHRASES – defence – honest and reasonable mistake of fact. Legislation Cited: Children (Criminal Proceedings) 1987 Crimes Act 1900 Crimes (Amendment) Act 1924 Crimes Amendment (Sexual Offences) Act 2003 Crimes (Girls Protection) Act 1910 Crimes (Girls Protection) Act 1911 Crimes (Child Assault Amendment) Act 1985 Crimes Legislation Amendment (Child Sexual Abuse) Act 2003 Criminal Law Amendment Act 1883 Evidence Act 1995 Cases Cited: Binksin v Watson (1990) 48 A Crim R 33 CTM v R [2007] NSWCCA 131 CTM v The Queen [2007] HCCA 25; (2008) 236 CLR 440 Chard v Wallis (1998) 12 NSWLR 453 Hardgrave v The King [1906] HCA 47; (1906) 4 CLR 232 He Kaw Teh v The Queen (1984-85) 157 CLR 523 Lavender v The Queen (2005) 222 CLR 67 Mathieson v Burton (1971) 124 CLR 1 Prince v R (1985) LR 2 CCC 154 Proudman v Daymon ([1941] HCA 28; (1941) 67 CLR 536 The Queen v Tolson (1889) 23 QBD 168 Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 Zayat v R [2016] NSWDC 166 Texts Cited: Pearce & Geddes, Statutory Interpretation in Australia, 8th Edition Category: Procedural and other rulings Parties: Jesse Loiterton (the offender) Director of Public Prosecutions Representation: Counsel: Ms M Humphreys (Counsel for the offender) Ms N Keay (Counsel for Director of Public Prosecutions)