Background
Richard John Douglas pleaded not guilty to two counts of attempting, contrary to s 11.1(1) of the Criminal Code (Cth), to commit the offence in s 272.9(2). The alleged substantive offence involved causing a child under 16 to engage in sexual activity, other than sexual intercourse, in Douglas’s presence outside Australia. Absolute liability applies to the physical element that the child is under 16.
In the District Court, the Commonwealth Director of Public Prosecutions accepted that the prosecution could not prove beyond reasonable doubt that the children were actually under 16. The prosecution nevertheless argued that impossibility could not defeat an attempt charge and expressly maintained that it need prove neither the children’s actual ages nor Douglas’s state of mind concerning their ages. Gallagher DCJ ruled that, on that formulation of the case, the prosecution had to prove that the children were in fact under 16. The Director appealed under s 5F(2) of the Criminal Appeal Act 1912 (NSW).
The Court’s Holding
The Court of Criminal Appeal unanimously dismissed the appeal. Bell CJ, with Mitchelmore JA and Muston J agreeing, held that the trial judge had been correct on the case the prosecution presented below. Because the prosecution had disavowed any need to prove that Douglas intended to engage in the relevant conduct with a child under 16, proof that the children were actually under 16 was the only remaining feature capable of giving the alleged attempts their criminal character.
On appeal, the Director changed course and argued that it would be enough to prove that Douglas intended the children to be under 16, even if their actual ages could not be established. The Court held that this argument was not available as a basis for challenging the trial judge’s ruling because it had been expressly disavowed below. The appeal was nevertheless competent under s 5F(2). The Court further explained that, had the prosecution advanced the intention-based case at trial, it could establish attempt by proving beyond reasonable doubt that Douglas intended the victims to be under 16 and took conduct more than merely preparatory to the offence; actual proof of age would then be unnecessary despite the absolute-liability provisions.
Key Takeaways
- A prosecutor ordinarily cannot overturn an interlocutory ruling by relying on an argument expressly disavowed in the court below.
- For an attempted offence, factual impossibility does not preclude liability where the accused intended every circumstance necessary to constitute the substantive crime and acted beyond mere preparation.
- Absolute liability as to a child’s age does not prevent the prosecution from proving an accused’s intention concerning age when that intention supplies the criminal character required for an attempt charge.
Why It Matters
The decision clarifies how the Commonwealth Criminal Code’s attempt provisions interact with offence elements subject to absolute liability. Although the prosecution need not prove a fault element concerning age when the child is actually under 16, it may rely on proof that the accused intended the child to be under 16 when factual proof of age is unavailable.
The judgment also underscores that interlocutory criminal appeals are assessed against the case actually argued below. A legally viable alternative theory will not establish error where the prosecutor rejected that theory before the trial judge.