R v Tan (No 2) [2023] NSWDC 228

R v Tan (No 2) [2023] NSWDC 228

The accused's honest and reasonable but mistaken belief that the complainant was over the age of 16 was not disproven beyond reasonable doubt by the prosecution (counts 1 & 3). For counts 2, 4 & 5, the accused established, on the balance of probabilities, that he did not know and could not reasonably be expected to have known the complainant was under 16 when producing or possessing child abuse material. Accordingly, each charge was not sustained and verdicts of 'not guilty' were recorded.

Jurisdiction
Australia
Judgment Date
26 June 2023
Procedural Posture
Criminal / Principal Judgment
Outcome
Acquittal: accused found not guilty on all charges.
Legal Topics
['sexual Offences Against Children' 'child Abuse Material' 'burden of Proof' 'mistake of Fact' 'statutory Defence' 'trial by Judge Alone']
['criminal Law'] ['sexual Offences Against Children' 'child Abuse Material' 'burden of Proof' 'mistake of Fact' 'statutory Defence' 'trial by Judge Alone']

Case Brief

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Procedural Posture

Criminal / Principal Judgment

Legal Issues

  1. 1 ['Whether the accused honestly and reasonably but mistakenly believed the complainant was above 16 years of age at the time of sexual intercourse (counts 1 & 3)' 'Whether the accused did not know and could not reasonably be expected to have known that he produced or possessed child abuse material (counts 2, 4 & 5)' 'Significance of different legal burdens of proof for a common law ground of exculpation vs statutory defence' 'Significance of complainant not being called as a witness']

Ratio Decidendi

The accused's honest and reasonable but mistaken belief that the complainant was over the age of 16 was not disproven beyond reasonable doubt by the prosecution (counts 1 & 3). For counts 2, 4 & 5, the accused established, on the balance of probabilities, that he did not know and could not reasonably be expected to have known the complainant was under 16 when producing or possessing child abuse material. Accordingly, each charge was not sustained and verdicts of 'not guilty' were recorded.

Court Disposition

Acquittal: accused found not guilty on all charges.

Orders

  • ['Accused found not guilty for count 1.' 'Accused found not guilty for count 2.' 'Accused found not guilty for count 3.' 'Accused found not guilty for count 4.' 'Accused found not guilty for count 5.']