"I didn’t do it, but if I did …"

CTM v R [2008] HCA 25 (11 June 2008) is another illustration of one of the irritating things about multi-judge cases.

The joint decision of Gleeson CJ, Gummow, Crennan and Kiefel JJ reads very convincingly, and we are left to wonder how anyone could dissent from its conclusion. The existence of honest (and reasonable) mistake was held to negative an element of the offence of having sexual intercourse with an underage person. But on the facts here the accused had not raised the issue at trial. The conviction was upheld.

Turning to the almost inevitable dissent of Kirby J, which was not referred to in the joint judgment, we see the case in a rather different light. Now it looks as though something went wrong: although the accused had not given evidence, in his interview with the police, that was part of the prosecution case, he had said he thought the girl was aged 16; that would have amounted to an absence of the state of mind that was necessary for commission of the offence. In Kirby J’s view, the Court should have ordered a retrial.

What are we expected to think? Plainly, that the majority are right, but why?

Hayne J agreed with the joint judgment, that the trial judge had misdirected the jury but that there was no substantial miscarriage of justice as no issue about the relevant mental element was raised at the trial. He did not refer to Kirby J’s reasoning. However, he does explain his basis for concluding that the issue of knowledge was not raised at trial:

“194 Without more, the fact that the appellant was proved to have made an out-of-court assertion about his belief as to the complainant’s age was not sufficient to raise an issue at his trial about mistake. In his interview with police, the appellant had said that he believed the complainant was aged 16 years because she had told him this. No question about this alleged conversation or about any communication she may have had with the appellant about her age was directed to the complainant in the course of her evidence. Not having raised the matter with the complainant in the course of her evidence, it was not then open to the appellant, relying only on what he had told police, to say that there was a live issue at the trial about his belief about the complainant’s age. To enliven the issue it was essential that the complainant be asked whether there had been a conversation of the kind described by the appellant to police. But not having raised the matter with her, it was not open to the appellant to say that the evidence elicited in the course of the prosecution’s case sufficed to enliven the issue.” [emphasis added]

On this, Kirby J held that the issue had been raised:

“108 The necessity to “enliven the issue”: By enlarging the obligation upon the accused to give, or adduce, evidence so as to “enliven the issue”, the majority in this Court have departed from the Court’s previous statements about the respective roles of the prosecutor and the accused. More fundamentally, they have increased the burden on the accused at the trial in a manner inconsistent with its accusatorial character and with the “golden thread” of which Viscount Sankey LC spoke in Woolmington[[1935] UKHL 1; [1935] AC 462 at 481].

“109 The particular suggestion that the appellant failed to “enliven the issue” because his counsel omitted to question the complainant about her age … illustrates this basic point. The appellant’s counsel was perfectly entitled to present his case in terms of a denial that sexual intercourse took place at all, a course chosen no doubt on instructions and understandable for forensic reasons. He was not obliged to take a different course in order to “enliven an issue” of honest and reasonable mistake. The “issue” had an independent foundation in the evidence on the record. That foundation was adequate to allow counsel to “rais[e] the question”[He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 593].”

Heydon J took a different view of the statutory interpretation exercise, and held that the appeal should be dismissed because there was no defence of absence of knowledge of the girl’s age.

The interesting part of the case, on which Kirby J dissented, is the holding that where a defence of absence of mens rea is based on what a witness has said to the accused, that matter must be put to the witness, even if the primary defence at trial is absence of actus reus. There is a duty to put the entire case by cross-examination of the appropriate witnesses.

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