Supreme Court dismisses appeal from High Court, and affirms a declaration that a statute was unconstitutional where it required that a person accused of defilement (a sexual act with a child under 17) needed to prove reasonable mistake as to age on the balance of probabilities, on the grounds that: (a) the age of the child was a core element of the offence and the accused should not be required to raise the defence of mistake by more than a reasonable doubt; (b) it was possible to make a reasonable mistake as to age without making any enquiries on the subject at all; (c) if the defence of mistake as to age was intended to provide for acquittal by the genuinely mistaken, the provision made it unduly difficult to establish and created an unnecessarily high risk of conviction of a person who was so mistaken.
O’Donnell CJ and O’Malley J (nem diss): Constitutionality of statute - criminal law - s.3(5) of the Criminal Law (Sexual Offences) Act 2006 (as substituted by s. 17 of the Criminal Law (Sexual Offences) Act 2017) - Art 38 of the constitution - two related offences - defilement of a child under the age of 15 - defilement of a child under the age of 17 - burden on defence to prove mistaken belief as to age of child on the balance of probabilities - accused acquitted of rape but convicted of defilement - sentence of one year and ten months imprisonment - mens rea - whether section 3(5) gave rise to an infringement of the presumption of innocence and therefore a violation of the constitutional guarantee of a right to a trial in due course of law - whether section provided for ‘special defence’ - disagreement between judges on question of interpretation - agreement on end result - link between mens rea (guilty mind) and actus reus (guilty act) - whether burden can be placed on defence - history of issues relating to knowledge of age - R v Prince (1875) - 1885 legislation “made to appear to the court or jury” that the accused had reasonable cause to believe that the girl was over 16 - discussion of ‘new offence’ of ‘capital murder’ - whether impugned legislation was ‘so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights’ - presumption of innocence and reverse burden of proof - whether a burden could only be discharged by evidence - requirement of proof beyond reasonable doubt - whether burden on defence would require accused to provide evidence where they would otherwise choose not to - whether burden on defence was an infringement of the presumption of innocence - complainant under 16 - accused was about three and a half years older (about 19) - complainant said she had told respondent she was 15 - issue concerned a ‘core element of the offence’ - necessary to prove a guilty mind - whether restriction on rights was proportional.
Judgment also by Charleton J, concurring.