The Supreme Court held that a 1997 amendment to an offence involving unlawful carnal knowledge of a girl under 17 was a substantive re-enactment, giving the amended offence the status of a post-1937 enactment. The Court did not decide whether the accused could rely on an honest belief about the complainant’s age.
Z.S. appealed a 2008 High Court refusal to declare section 2(1) of the Criminal Law Amendment Act 1935, as amended, unconstitutional. He argued that the offence imposed absolute liability because it did not require proof that he knew the complainant’s age or provide a defence of honest mistake. The appeal concerned the lawfulness of that provision, not a determination of the criminal charge.
The agreed background recorded that the complainant was 16 at the time of the alleged incident in October 2003. The prosecution alleged that Z.S., who ran a shop where she worked, raped her. The judgment records seminal staining on her jeans and a DNA match with a sample from Z.S. He denied having intercourse when interviewed.
At a 2011 trial, the defence said Z.S. believed the complainant was 18. She said her date of birth was on her CV and that she told him she was 16 during the alleged attack. Z.S. disputed that the CV showed her date of birth and said he understood she was 18 because she had described having two years’ work experience. He also disputed that intercourse occurred. The trial judge directed the jury that an honest belief about age could be relied on, but the jury did not reach a verdict. A retrial was due to begin in January 2012.
The High Court had refused the constitutional relief, reasoning that the 1997 amendment attracted a presumption of constitutionality and that the trial court should determine the mental element required by the offence. On appeal, the Supreme Court examined whether the amendment amounted to re-enactment after the Constitution came into force.
Denham Chief Justice concluded that the 1997 amendment extended the offence to all females under 17, making a fundamental change and extending its scope to new victims. She held that it was an effective re-enactment with substantive effect. The judgment states that the Court determined the appeal as concerning a pre-1937 statutory offence and that, in the circumstances, it would not undertake the separate question of determining the case on the basis that the amended provision constituted a post-1937 offence. It did not resolve the age-belief issue or determine the criminal charge.