CTM v The Queen  HCA 25
Honest and reasonable mistake of fact and s 66C(3) Crimes Act 1900 (NSW)
The appellant was convicted by a jury of an offence under s 66C(3) of the Crimes Act, namely, sexual intercourse with a person who is of, or above, the age of 14 and under the age of 16 years. The appellant told the police that he believed the complainant was 16 years of age. The offence was created by the Crimes Amendment (Sexual Offences) Act 2003 (the amending Act). The appeal raised a significant question of law as to whether the ground of exculpation of honest and reasonable mistake of fact applied to the newly created offence under s 66C(3), notwithstanding the repeal by the amending Act of the limited statutory defence in s 77(2) of the Crimes Act. Section 77(2) provided as follows:
It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E(1A), (2) or (2A), 61N(1), 61O(1) or (2), 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E(1), 61L, 61M(1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that:
the child to whom the charge relates was of or above the age of 14 years at the time the offence is alleged to have been committed,
the child to whom the charge relates consented to the commission of the offence, and
the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years. [Bold emphasis added.]
The High Court (Gleeson CJ, Gummow, Crennan and Kiefel JJ in a joint judgment; Kirby and Hayne JJ agreeing in separate judgments; Heydon J dissenting at  on this point) held that as a matter of statutory construction an honest and reasonable mistake that the complainant was of, or above, the age of 16 years was an answer to a charge under s 66C(3).
A basic common law principle of criminal responsibility is that a person is not criminally liable for an act or omission if he or she holds an honest and reasonable belief in a state of facts, which, if true, would make the act or omission innocent. The word “innocent” in this context means not guilty of a criminal offence, or in the case of an offence or a series of offences defined by statute, if the belief were true, the conduct of the accused would be outside the operation of the enactment. This common law principle of criminal responsibility was incorporated by Sir Samuel Griffith in the 1897 Queensland Draft Code of Criminal Law, articulated by Cave J in R v Tolson (1889) 23 QBD 168 at 181 and later accepted by the High Court (see several cases referred at footnote 4 of the judgment).
This fundamental principle of criminal responsibility “… may be excluded by a sufficiently plain manifestation of legislative intention.” (at ). The joint justices said at :
… when an offence created by Parliament carries serious penal consequences, the courts look to Parliament to spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake.
The court concluded that in this case Parliament had not done so. The joint justices concluded at :
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. An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of 16 years.
In the present case, the appellant failed to discharge the evidential burden: joint judgment at ; Hayne J at , , . The appellant was not prevented from raising the mistaken belief despite denying that sexual intercourse took place: joint judgment at ; Kirby J at –; Hayne J at ; Pemble v The Queen (1971) 124 CLR 107 applied. However, there was nothing to support the honesty and reasonableness of the asserted belief that the complainant was 16 years of age: joint judgment at . The appellant gave no sworn evidence about his belief and the complainant was not asked to respond to the appellant’s assertion in his interview with police that she had told him she was 16: joint judgment at –; Hayne J at .
The court dismissed the appeal by majority (joint judgment; Hayne and Heydon JJ in separate judgments). Although substantially agreeing with the majority on matters of principle, Kirby J would have allowed the appeal and ordered a retrial on the basis that the appellant had discharged the evidential burden of raising honest and reasonable mistake of fact: –, , , .