Clarke v The Queen [2008] HCATrans 376 (13 November 2008)

Last Updated: 18 November 2008

[2008] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A15 of 2008

B e t w e e n -

REBECCA JANE CLARKE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 NOVEMBER 2008, AT 11.33 AM

Copyright in the High Court of Australia

MR J.A. RICHARDS: If the Court pleases, I appear for the applicant. (instructed by Lipson Chambers)

MR M.G. HINTON, QC (Solicitor-General for the State of South Australia): If your Honour pleases, I appear with MS T.D. McLEAN for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Thank you. Yes Mr Richards?

MR RICHARDS: If your Honours please, the question in this application is of the true construction of section 63(a) and section 63B(1)(a) of the Criminal Law Consolidation Act and, in particular, the question of whether a honest and reasonable mistake of fact may arise on those sections. It is accepted that the Crown does not have to prove that an accused person knew that the other person was under the age of 16 years, however, the question is one of deciding the position of an accused who honestly and reasonably believes in a state of affairs such that were those facts true, would render their behaviour innocent at law.

As put by the majority or observed by the majority in the case of CTM, it was noted that situations such as this in relation to offences there considered in New South Wales legislation are not uncommon and it would be impossible in those circumstances to ignore the situation of persons who commit offences under an honest and reasonable mistake. We say that this is a question of considerable public importance in the administration of the law in this State.

CRENNAN J: Are you able to point to the error in the Court of Criminal Appeal in the sense that in the Court of Criminal Appeal it is a fairly orthodox approach to determining whether or not the Proudman v Dayman defence was excluded and there was a consideration of the words of the statute, consideration of the purpose of the statute and so forth. In that context, are you able to point to the error about which you complain in relation to the Court of Appeal’s reasoning?

MR RICHARDS: Yes. If your Honour pleases, the error that we complain of is that the conclusion reached – because there was no express exclusion of that defence under the terms of the South Australian legislation, so therefore it must have been concluded that it was excluded by necessary implication, and the error we complain of is, with respect, what is present in the South Australian legislation is insufficient to equate to a necessarily implied exclusion.

FRENCH CJ: So it really becomes a question of the construction of this particular statute.

MR RICHARDS: Yes.

FRENCH CJ: That of itself does not raise a question of general importance beyond South Australia, does it?

MR RICHARDS: If your Honour pleases, no. We accept that the decision of CTM, you might have thought, would have been determinative of that issue, but, with respect, it is not in this State. In this State the law is as it stands.

FRENCH CJ: CTM sets up some interpretive principles to be applied, does it not?

MR RICHARDS: Yes, it does.

FRENCH CJ: And is there a suggestion that there has been a departure from those interpretive principles by the Full Court?

MR RICHARDS: Yes, if your Honour pleases, and, with respect, the decision in the CTM post-dated the decision in Clarke.

FRENCH CJ: Yes, I understand that.

MR RICHARDS: But if your Honour pleases, in essence, the submission is, the result in Clarke is inconsistent with the principles set down by this Court in CTM and therefore there must be, as it were, an error in the reasoning of the court. I will go to the reasoning in a moment.

CRENNAN J: It is in the application of the principles that you are complaining about, is it not?

MR RICHARDS: It is in the application of the principles.

FRENCH CJ: There is no misstatement of principle.

MR RICHARDS: Yes.

CRENNAN J: That is why I was concerned to have you identify for us where you say the principles have been wrongly applied in the reasoning.

MR RICHARDS: Yes. If I could perhaps take your Honours to that.

CRENNAN J: Certainly.

MR RICHARDS: The reason the court proceeded from a number of grounds to conclude that there was a necessary intention to exclude – one of the major points referred to by the court – and it is covered in my outline of submissions at paragraph 3.3, but the question is the use in the legislation of the phrase “under or apparently under” a certain age where - - -

CRENNAN J: Sixteen.

MR RICHARDS: That is right. If your Honours please, his Honour the Chief Justice in his judgment referred to that particular element and said in conclusion that if it were the case - - -

CRENNAN J: Where are you reading from?

MR RICHARDS: If your Honour pleases, perhaps I will take you to the actual part.

CRENNAN J: Paragraph number.

MR RICHARDS: Yes. I am referring to page 47 of the application book at paragraphs 27 and 28 and at those paragraphs his Honour analyses the South Australian legislation and concludes at paragraph 28.

If then an honest and reasonable belief that the person in question is not under the age of 16 years is no answer to a charge based on the person in question being apparently under the age of 16 years, is it nevertheless an answer to a charge based on proof of the age of the person in question? That is how the present case was put to the Judge. The age of the two girls in question was proved as a matter of fact.

No reason occurs to me to think that Parliament would take a different approach to a different way of proving that the person depicted or concerned is a child. The fact that the accused is guilty of an offence if the person depicted or incited is apparently (judged objectively) under the age of 16 years, whatever may have been the belief of the accused, suggests to me that in a case based on proof of the age of the person depicted or incited, the belief of the accused should be and will be equally irrelevant.

With respect, if your Honour pleases, the two cases are entirely different because in a circumstance where a person is apparently under the age of 16 years there is no room for a reasonable belief that that person is over that age. It simply does not arise. So, if your Honour pleases, it can be looked at either that the point does not arise - - -

FRENCH CJ: That is called in aid in the implied exclusion of the defence from the – and that becomes a pretty narrow point of statutory construction, does it not?

MR RICHARDS: It does, and if your Honour pleases, it is equally possible to look at that not as the question does not arise as it is not reasonable, it is also equally possible to say, well, the question of whether or not an honest or reasonable mistake of facts still arises, however, it will not be reasonable. I know I am playing with words, but, with respect, that is a very narrow ground to distinguish the two. If someone looks to be over the age of 16 years, this simply begs the question. That is precisely why one might have an honest and reasonable belief. So there is no comfort, as it were, in the use of the words “apparently under the age of 16 years”, in my respectful submission.

The other matter that his Honour referred to briefly was a reference to the use of the word “knowingly” in respect of the pornographic nature of the material under the South Australian legislation. If your Honours please, the inclusion of those words in the legislation does no more than mean that the Crown have to prove that someone knew that the material had a pornographic nature. It is defined as – and I am referring to page 138 of the respondent’s book of materials, but briefly it is defined as:

pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic –

The aspects of the material by which reason it is pornographic presumably will exclude someone who, for instance, takes a school photograph and accidentally a child’s breast or something is exposed in the photograph. That will allow those persons who can simply say “I did not know that what it was I produced had a pornographic nature”. With respect, that does in no way affect a situation from the age aspect which I think was clearly distinguished in the judgment of Justice Hayne in CTM where he looked at the distinction between whether or not an honest and reasonable mistake of fact could apply to the actual aspect of age.

If your Honours please, if Parliament thought it were relevant to protect accidental production of pornographic material, why would Parliament, as it were, at the same time exclude “mistaken”, where someone is mistaken as to the age of the child in question. With respect, if your Honours please, whatever is the meaning of the word “knowingly” as regards the pornographic nature of the material, our submission is it leaves untouched the issue of mistake and it lends very scant comfort to a conclusion that Parliament would do something so draconian as to exclude the possibility of that defence under South Australian law.

If your Honour pleases, there is nothing, unlike the facts in the case of CTM, in the legislative history that lends comfort – and so much was admitted by Chief Justice Doyle in his analysis – to an interpretation that Parliament intended so draconian a result. Reference was made at one point to Division 11 of the legislation which a partial honest and reasonable mistake of fact offence was allowed relating to certain ages of offenders. As this Court noted, all that simply did was to limit the availability of that defence in other parts of the relevant legislation. In respect of this part of the legislation, there is nothing, as it were, in the parliamentary debates or elsewhere that lends comfort to a conclusion that there was an intention to exclude that ground of exculpation. So there was nothing of the sort of considerations that informed the dissent of Justice Heydon in the case of CTM.

If your Honour pleases, finally the court turned to what we say is the nub of the decision and that is the actual efficacy in furthering the aims of the legislation. I have said in my outline, and I am sure your Honours have noted, the comments of Chief Justice Gibbs in He Kaw Teh and elsewhere, noble as they may be, rendered to their essence they simply are that securing convictions will be easier. If I can refer your Honours to paragraph 48 of the decision in Clarke. It is at page 51 of the application book. Paragraph 48 simply says:

So recognition of the defence will make it difficult to secure a conviction in a category of case that cannot be put aside as insignificant.

With respect, if your Honour pleases, apart from the fact that that distrusts the ability of juries to work out whether someone’s belief is reasonable or not, well be it that it would make it difficult to secure a conviction against someone who has no intent to commit a criminal offence.

FRENCH CJ: It may be that one can also see a policy informing the contrary construction that if you are going to engage in this sort of activity with young people, there is an area of risk, of a number of uncertainty and you had better stay out of it; in other words, a kind of risk alleviation mechanism.

MR RICHARDS: I think that sort of reasoning was behind much of what Justice Bleby said in his judgment toward the end. With respect to that, the difficulty is that if a person honestly and reasonably believes in a state of affairs as being not to cause concern or alarm, they are unlikely to then decide to make the necessary checks, et cetera, require driver’s licence, et cetera, before they engage in behaviour of this sort. With respect, this legislation is wide enough to simply cover school kids larking about at a party and taking photographs with very, very little consideration of what they are doing and well be it if they are taking a risk and not - - -

FRENCH CJ: That raises broader issues. It is not based on age necessarily, or perception as to age.

MR RICHARDS: Well be it if they are taking a risk and doing nothing, but in this case it will also catch the person such as the applicant in this case who has been lied to about the ages of the girls concerned and has no reason to believe otherwise and reasonably believes that they are of an age that would render the behaviour otherwise lawful. With respect, that cannot have been the intention of Parliament to have persons in that situation caught by what is legislation that brands them as a paedophile and it applies that brand for life. Ultimately we would say - - -

CRENNAN J: What is the effect of the conviction now on Ms Clarke in terms of having status as a particular type of offender?

MR RICHARDS: The effect on Ms Clarke now is that because of the actual penalty of imprisonment was removed, she no longer has to be placed on a paedophile register.

FRENCH CJ: When you mean removed, you mean suspended?

MR RICHARDS: It was suspended, yes. She no longer has to be placed on a paedophile register. She remains, however, a convicted paedophile.

FRENCH CJ: What are you saying is nothing more than that she has been convicted of this offence?

MR RICHARDS: Yes.

CRENNAN J: So does that mean does not have any impact in relation to her job prospects and matters at that kind?

MR RICHARDS: With respect, your Honour, I think it would have a profound impact in relation to her job prospects in future life. She had hoped to be a social worker and I would have though that a conviction for paedophile-related offending is likely to be very deleterious.

CRENNAN J: Is that part of the plea that she had hoped to be a social worker?

MR RICHARDS: Yes, it was, but we accept that the plea submissions are a separate matter entirely, but, yes, it was raised with the court and the fact
that it would have lifelong implications for her was also raised. If your Honour pleases, we have - - -

CRENNAN J: Could there have been any possibility of recording no conviction in all the circumstances?

MR RICHARDS: We certainly hope so, but the court took the view that ultimately the needs of the parents were more important and this is the point we raised on appeal – the actual case of Clarke (No 2) I have included in the materials because I refer to it – originally just to say, look, the issue in this State is still live as to the interpretation of that legislation, but the decision in Clark (No 2) is clear as to the fact that it is considered to be a deterrent to retain the conviction and this is so with regards to people who have no idea they are committing offences. It is very difficult to deter a class of people who do not know they are committing offences and the logic being there must have been something more that she could do. With respect, if you believe the information you are given, it would be illogical to act in a manner inconsistent with your belief.

If your Honour pleases, we say, finally, that the interests of justice in this case are such that this Court ought to interfere, not just the question, as it were, of settling in this State the interpretation of the relevant section. We say there was not sufficient here to create a necessary implication of the exclusion and for that to be retained, would lead South Australia, as it were, with an approach to the interpretation of the statute different from that that was taken by this Court in CTM. Those are my submissions.

FRENCH CJ: Thank you. Yes, Mr Solicitor.

MR HINTON: If the Court pleases. In CTM your Honour the Chief Justice is quite right, this Court dealt with issues of interpretation, approaches to the interpretation of criminal statutes creating offences where there is an issue of whether or not they are strictly liable or absolutely liable and in CTM we were dealing, in particular, with a strictly liable offence. The difference between a strictly liable offence and an absolute liability offence, Chief Justice Gibbs told us in He Kaw Teh, is whether or not the Proudman v Dayman offence is available.

CTM tells us you start from the position that there is a presumption of common law that it is available, a rebuttable presumption. You then look in accordance with the same procedure outlined or approach outlined in He Kaw Teh at the statute to determine whether or not it is rebutted. He Kaw Teh, earlier in time, was a related presumption. The presumption was, every statutory offence has a mental element unless expressly or by necessary implication it is rebutted.

Now, in this case we were not dealing with a totally strictly liable offence, because there is undoubtedly a mental element. What we were dealing with is one particular element and the question was whether or not that element itself was strictly liable.

FRENCH CJ: Accepting that the focus is upon the construction of this particular statute in South Australia and accepting that it involves the application of general interpretive principles, the kind you have just referred to in CTM, is there a case that if there be more than one view reasonably open about the construction and the existence of the defence, the consequences for the individual are of such significance that it does raise a question of importance in the administration of justice? Not just this individual, but any individual who is charged of course.

MR HINTON: If it is any individual, then we are in the general area. If it is this individual, then we are in that catch all of section 35A, a miscarriage of justice. There is no doubt that a conviction for these sorts of offences can carry significant consequences - - -

FRENCH CJ: In the end she walked away with a bond, I think, as a result of the affair, but you accept that there are still lifelong consequences one could reasonably anticipate as a result of this particular conviction?

MR HINTON: The same lifelong consequences for anybody with a criminal conviction in that every time someone says, “Have you a criminal conviction?”, you are required to write it down, “Yes”. “What for?”, in this case you will not characterise it as a paedophilia offence, you will state the specific name of the offence; production or dissemination of child pornography. It carries with it undoubtedly a stigma that will make life difficult if you are applying for particular sorts of jobs. It will make it difficult if you are trying to get a green card and travel to the United States and have to disclose these things, no doubt.

But there is also, on the other side of the coin, that element of policy that Justice Bleby refers to and the Chief Justice that is drawn from the legislation – from an approach to the construction of the legislation consistent with the principles derived from He Kaw Teh and CTM and, that is, Parliament has said, in effect, if you are going to engage in this sort of thing, then you better make sure that it is not with a child, because you will no defence otherwise. That is a valid legislative policy and that goes on the other side of the scales to the effect, the consequence for an individual and that consequence has to have been contemplated by Parliament, if your Honour pleases.

So the answer is; it is not sufficient in this case to grant special leave. The applicable principles were applied, the Parliamentary intent is clear. If
the Court pleases, in my submission, the decision itself is not attended by sufficient doubt as to grant special leave. The consequence, albeit severe in some respects, does not change that the approach was compliant with principles identified by this Court. There is no general question of public importance and there is nothing in the administration of justice or in terms of a miscarriage in this particular case, in my submission, that warrants this Court granting special leave. It might be different had someone made an application with respect to sentence and asked these sorts of things be considered there, but that has not occurred. If the Court pleases, those are my submission.

FRENCH CJ: Thank you, Mr Solicitor. Yes, in reply, Mr Richards?

MR RICHARDS: Just on the issue of policy when Justice Bleby characterised at page 65 of the application book – perhaps I will start at the top of the page at about line 10. It starts on the preceding page:

Without absolute liability it becomes difficult to enforce the Act in respect of such children. One returns to the object and purpose of the provisions. So long as it remains the protection of children under 16, if the Proudman v Dayman defence is available, a significant proportion of that group will become unprotected unless, as is unusual in the case of girls, they are also apparently under the age of 16.

If your Honour pleases, the purpose of the legislation, with respect, can be characterised as the protection of children under 16, but it is a protection from something, and it is a protection from predators. The applicant in this case is not a predator and ought not be characterised so by the law.

CRENNAN J: What about Mr Hinton’s point that your administration of justice point, if I can use that shorthand, might have been able to be ventilated in a sentencing appeal, but you have chosen the wrong way of seeking to ventilate it?

MR HINTON: If your Honour pleases, the interests of justice, once a person is validly found guilty under that legislation, if that person is then convicted, if the interpretation of legislation is correct, then that may lead to a conclusion that even so a conviction is harsh. With respect, we are maintaining that the finding that there was a necessary implication that the defence is excluded is incorrect and that what is needed is this Court to interfere to settle South Australian law on that issue, which remains unsettled despite CTM. If your Honour pleases.

FRENCH CJ: Thank you, Mr Richards. The Court will adjourn briefly to consider the matter.

AT 12.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.04 PM:

FRENCH CJ: In our opinion, the case raises a question of statutory construction. It is a question particular to the South Australian legislation. There appears to be no error of principle and nothing inconsistent with the interpretation principles enunciated in the decision of this Court of CTM.

The decision of the Full Court is not attended with sufficient doubt to warrant the grant of special leave. Special leave should be refused.

Thank you. The Court will now adjourn briefly while the video link is established.

AT 12.05 PM THE MATTER WAS CONCLUDED