R v LOITERTON [2019] NSWDC 166

R v LOITERTON [2019] NSWDC 166

Section 66C(1) Crimes Act 1900 contains no express words excluding the common law ground of honest and reasonable mistake, and no necessary implication excluding it can be drawn from the legislative history or the former s 77(2). The reasoning in CTM v The Queen concerning the need for clear abrogation of fundamental common law principles applies to s 66C(1). Accordingly, if an evidentiary foundation is raised, the prosecution must negative an honest and reasonable belief that the complainant was aged 16 years or over, and the issue may be left to the jury.

Jurisdiction
Australia
Judgment Date
02 May 2019
Procedural Posture
Criminal Proceeding Concerning Charges Under S 66 C(1) Crimes Act 1900 / Pre Trial Hearing on Question of Law
Outcome
The common law ground of exculpation of honest and reasonable mistake applies to an offence under s 66C(1) Crimes Act 1900.
Legal Topics
['sexual Intercourse With Child Aged Between 10 and 14 Years' 'honest and Reasonable Mistake of Fact' 'mistake of Age' 'strict or Absolute Liability' 'jury Directions']
['criminal Law' 'criminal Procedure' 'statutory Interpretation'] ['sexual Intercourse With Child Aged Between 10 and 14 Years' 'honest and Reasonable Mistake of Fact' 'mistake of Age' 'strict or Absolute Liability' 'jury Directions']

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Procedural Posture

Criminal Proceeding Concerning Charges Under S 66 C(1) Crimes Act 1900 / Pre Trial Hearing on Question of Law

Legal Issues

  1. 1 ['Whether the common law ground of exculpation of honest and reasonable mistake of fact applies to an offence under s 66C(1) Crimes Act 1900.' 'Whether, if an evidentiary foundation is raised, the trial judge can direct the jury on honest and reasonable mistake as to the complainant being aged 16 years or over.']

Ratio Decidendi

Section 66C(1) Crimes Act 1900 contains no express words excluding the common law ground of honest and reasonable mistake, and no necessary implication excluding it can be drawn from the legislative history or the former s 77(2). The reasoning in CTM v The Queen concerning the need for clear abrogation of fundamental common law principles applies to s 66C(1). Accordingly, if an evidentiary foundation is raised, the prosecution must negative an honest and reasonable belief that the complainant was aged 16 years or over, and the issue may be left to the jury.

Court Disposition

The common law ground of exculpation of honest and reasonable mistake applies to an offence under s 66C(1) Crimes Act 1900.

Orders

  • ['The Court will leave the defence of honest and reasonable mistake of age to the jury if an evidentiary foundation for it is raised at trial.']