CTM v The Queen

Facts

The appellant, CTM, was charged with having sexual intercourse with a person under the age of 16 years contrary to s 66C of the Crimes Act 1900 (NSW). CTM raised a defence of honest and reasonable mistake of fact, contending he genuinely and reasonably believed the complainant was 16 years of age or older. The trial judge directed the jury that the defence was available, but the Court of Criminal Appeal held that mistake of fact was not a defence to the offence.

Issues

1. Whether the common law defence of honest and reasonable mistake of fact (as articulated in Proudman v Dayman) is available to a charge under s 66C of the Crimes Act 1900 (NSW). 2. Whether the offence under s 66C is one of strict liability, absolute liability, or requires mens rea such that the Proudman v Dayman defence applies.

Holding

The High Court held, by majority, that the defence of honest and reasonable mistake of fact is available to a charge under s 66C of the Crimes Act 1900 (NSW), and that the offence is not one of absolute liability. The Court of Criminal Appeal's decision to the contrary was overturned.

Ratio decidendi

Where a statutory offence is silent as to fault elements and does not expressly or by necessary implication impose absolute liability, the common law defence of honest and reasonable mistake of fact — as stated in Proudman v Dayman (1941) 67 CLR 536 — remains available to an accused, such that an accused who honestly and reasonably believed in a state of facts which, if true, would make the conduct innocent cannot be convicted.

Obiter dicta

Members of the majority made observations regarding the presumption against strict and absolute liability in criminal statutes, noting that Parliament must use clear and unambiguous language to exclude the common law defence. Dissenting judges considered that the gravity of the protected interest (child welfare) and the legislative context pointed toward absolute liability for the age element of the offence.

Significance

CTM v The Queen is a significant authority confirming that the Proudman v Dayman defence of honest and reasonable mistake of fact applies to age-based sexual offences in New South Wales unless Parliament has clearly and unambiguously excluded it, thereby reinforcing the common law presumption against absolute criminal liability.

Key authorities

• Proudman v Dayman Proudman v Dayman (1941) 67 CLR 536applied
• He Kaw Teh v The Queen He Kaw Teh v The Queen (1985) 157 CLR 523applied
• Sherras v De Rutzen Sherras v De Rutzen [1895] 1 QB 918considered
• R v Prince R v Prince (1875) LR 2 CCR 154distinguished