R v Addley

Here the appellant was convicted under s 218A of the Criminal Code of using electronic communication with intent to procure a person he believed was under 16 to engage in a sexual act.  The appellant was arrested after exchanging communications on a website with a police officer who had created a fictitious profile.  The facts reveal there was some doubt as to whether the accused believed the person was under 16.  The decision considers the distinction between charges under ss 218A and 218B of the Criminal Code where the complainant is in fact under the age of 16 and where an accused simply believes the complainant is under the age of 16.  The court also explains the distinction between the onus of proof of the element of belief that the Crown has to establish and the issue of the defence provided by ss 218A(8) and 218B(8) that the defendant believed on reasonable grounds that the person was at least 16.

Sofronoff P and Fraser and Philippides JJA

19 June 2018

The appellant was convicted of one count under s 218A Criminal Code, that he used electronic communication with intent to procure a fictional person whom the appellant believed was under 16 years to engage in a sexual act. [16], [17].  The appellant relied upon the defence provided by s 218A(8), asserting he believed on reasonable grounds that the person was at least 16 years of age.  President Sofronoff, with whom Fraser and Philippides JJA agreed, observed that this defence places the onus of proof upon the accused, unlike s 24 Criminal Code, which also concerns a reasonably based mistaken belief but is a matter for the Crown to disprove. [22].

President Sofronoff noted that ss 218A and 218B each each provide for two difference offences, with different central elements.  That is, where the complainant is actually under 16 years and where an accused believes the person is under 16 years. [20].  His Honour considered the paths to verdicts of guilty and not guilty for the two categories of offence. [40]–[42]. In the case of a fictional person, as here, the possibilities for the jury are:

1. The jury is satisfied that the accused believed on reasonable grounds that the person was at least 16: a verdict of acquittal.
2. The jury is satisfied that the accused believed, but without reasonable grounds, that the person was at least 16: a verdict of acquittal.
3. The jury is satisfied that the accused had no belief one way or the other: a verdict of acquittal.
4. The jury is not satisfied that the accused believed the person was under 16: a verdict of acquittal.
5. The jury is satisfied that the accused actually believed that the accused was under 16: a verdict of guilty.

In the case of a real person under the age of 16 in which the defence is raised, the possibilities are:

1. The jury is satisfied that the accused believed on reasonable grounds that the person was at least 16: verdict of acquittal.
2. The jury is satisfied that the accused believed, but without reasonable grounds, that the person was at least 16: verdict of guilty.
3. The jury is satisfied that the accused had no belief one way or another: verdict of guilty.
4. The jury is not satisfied that the accused believed that the person was under 16: verdict of guilty.
5. The jury is satisfied that the accused actually believed that the person was under 16: verdict of guilty.

At trial, the judge directed the jury [43]:

“… the issue in relation to each charge is the same, whether the prosecution has proved beyond a reasonable doubt that the defendant believed the person he was communicating with was under 16, and an allied one is whether the defendant has established on the balance of probabilities that, on reasonable grounds, he believed the person was above that age.”

President Sofronoff concluded that the clumping together of these two distinct paths was an invitation to confusion.  The element of belief that the Crown had to establish involved no requirement to prove the accused’s subjective believe was a reasonable one. [44].  The defence, on the other hand, obliges an accused to show that the belief was reasonably based. [44].  It was not clear in this case that the jury understood the distinction between the issue of the defence and the onus of proof.  His Honour found that the direction “may well have had the effect that the jury having disposed of the issue of the defence, the jury then looked to the Crown evidence alone to decide its verdict”. [46].

The misdirection resulted in a miscarriage of justice.  The conviction was quashed and a retrial ordered. [47].

K Gover of Counsel