The reasonable man (or the more politically correct ‘reasonable person’) is a time-honoured legal construct against which human behavior is judged – most commonly in cases concerning the tort, or civil wrong, of negligence.  The concept is, however, also relevant to the consideration of some criminal offences.

For example, Terry Martin was charged and found guilty of an offence under s 124 of Schedule 1 of the Criminal Code Act 1924 (Tas), which states, at subsection (1), that ‘any person who has unlawful sexual intercourse with another person who is under the age of 17 years is guilty of a crime.’  Section 124(2), however, provides that ‘(I)t is a defence to a charge under this section to prove that the accused person believed on reasonable grounds that the other person was of or above the age of 17 years.’

The defence, as legislated, raises two significant issues.

Firstly, what constitutes a reasonable belief that a 12-year-old girl is older than 17 years?  By what standard are persons accused of a crime under s 124(1) to be judged?  Is it the impartial standard of a person meeting the girl in the street and engaging her in conversation?  Most people would honestly believe they could distinguish a 12-year-old girl from a 17-year-old in such circumstances.
Or is it the skewed standard of a man paying for sex with the girl in question?  A person who has a strong vested interest in the girl being 17 rather than 12.

Much has been written about the reasonable man, and he is generally regarded as a prudent individual, with a good understanding of the consequences of his actions.  It may be argued, however that the legal interpretation of ‘reasonable’ should be normative, rather than circumstantial, in the case of sexual crimes perpetrated on children – that a belief, for example, should be reasonable according to a clear, normative standard not ‘reasonable in the circumstances’.  In the case of a defence under s 124, the belief should match the standard set by an impartial observer, rather than the belief held by a man answering a prostitute’s ad in the local rag, and being greeted at the door by a girl in her underwear.

Some may argue that a normative standard would prejudice free access to the statutory defence by accused offenders.  On the other hand, it might pose less danger to our freedoms than a standard which allows perpetrators of offences against children to act without consequence.

The legal advice released by the DPP explaining the decision to prosecute only one of approximately 100 men who engaged in sexual activity with the 12-year-old girl in September 2009, notes that the defence provided in s 124(2) would probably be successfully raised by the seven men who admitted, at interview with the police, to paying for sex with the girl.

The advice goes on to explain that, even if charged and convicted, those seven men would likely receive only modest custodial sentences – probably suspended.  This advice was validated with the sentencing of Terry Martin to a wholly-suspended 10-month sentence. 

Further, the victim has expressed reluctance to give evidence at further trials, and the DPP has cited case law supporting the position that she would indeed be called to give evidence at such trials as a material witness, even though it is acknowledged that she may not be able to identify the accused – ‘given the sheer number of people the complainant has had intercourse with, any such identification would be of doubtful probative value, as it would be difficult to rely on her identification as actually a person she had sex with as distinct from a person she may have seen in the street.’  In case you’ve forgotten, the DPP is making that comment about a 12-year-old girl.

Interestingly, the DPP’s advice cites no case law directly relevant to a charge under s 124(1) of the Act – perhaps offenders routinely escape prosecution in such matters.

It has been suggested that Terry Martin was singled out for prosecution because he had contact with the girl in different surroundings to the other men.  Much has been made of the role played by ambient lighting in distinguishing the Martin case.  I would suggest that such a distinction is pathetically flimsy.  Like cheap toilet paper, it’s leaving an unpleasant shitty residue on the arse of the Tasmanian legal system, and under the fingernails of its child protection services.

According to the DPP’s published advice,  ‘MALE 3’ of the aforementioned seven was able to clearly describe the girl’s pimp, Gary Devine as follows -

‘As he went to leave the (address) he saw a male on a couch in the lounge room. He described the male as of average height, medium to strong build, tanned or olive complexion, very short hair and had a very intent or dangerous look in his eyes. He had a lot of older-style tattoos on the top and outside of his forearms. He was in his late thirties to early forties, had weathered skin on his face and had a chiselled/definitive jaw line. He looked like a member of the Devine family.’

So, the light in the ‘dark and dingy’ flat was adequate for a detailed description of Devine, across a room, but inadequate to assess the age of a girl he was having sex with?  I don’t think so.
The fact that the tiny brain in his little bald head was making the decisions does not make for a ‘reasonable belief’.

Secondly, the statutory defence available under s 124(2) requires the accused to ‘prove’ they believed, ‘on reasonable grounds’, that the girl was aged 17 years or older.  ‘To be successful, such a defence must be established by’ the defendant ‘on the balance of probabilities’ (Tasmania v Martin [2010] TASSC 51, per Crawford CJ).  How did the DPP’s office satisfy itself that the seven men could prove their reasonable belief in the age of the girl, according to the required standard?

In the Mercury newspaper dated 23 November 2011, Sexual Assault Support Service chief executive Liz Little was quoted as follows -  ‘As for the suggestion these men believed the girl was of the age of consent well, my advice is there were several who got there then left when she answered the door in broad daylight because she was obviously too young.

I also understand there were others who asked for ID and left when she couldn’t provide it.’

If some potential clients were concerned about the victim’s apparent young age, what distinguished the seven who admitted having sex with her?  With a bit of effort, it seems those seven men could have been successfully prosecuted under s 124(1).

So, why weren’t they?  The bottom line is that at least 100 men who paid for sex with a child have escaped any consequences.  Who were they?  Is the sexual abuse of children just another festering sore on the corpus of Tasmania – one that nobody has the inclination, or the nerve, to treat.

Or, maybe it’s all about money, or the government’s lack thereof.  The Victims of Crime Assistance Act 1976 (Tas) provides that persons injured ‘as a result of the act of another person that constitutes an offence’ may apply for compensation.  Injury includes pain and suffering, both physical and psychological.  The victim in this case is clearly entitled to compensation.  The amount of available compensation is limited to a maximum amount ($30,000), but limited pursuant to s 6A of the Victims of Crime Assistance Act to injury arising from –

‘(a) a single offence; or
(b) a series of offences committed by the same offender; or
(c) a series of offences committed simultaneously or consecutively by offenders acting in concert.’

A series of ‘single’ offences, such as those perpetrated on the 12 year-old by each of her clients, could conceivably give rise to a number of claims – she could, if she wished, take the government to the cleaners.  I hope she does, and chucks in a negligence suit against the child protection services for good measure. 

Further, following the judgment of Wood, J in L v Carey [2010] TASSC 54, the award of compensation is not tied to ‘the jury’s verdict or the outcome of criminal proceedings’.  As a claimant, the girl would only need to establish, on a balance of probabilities that the offences, in respect of which she is claiming, took place.  No real problem there – at least seven guys have officially owned up.

Some have expressed an opinion that Terry Martin was prosecuted for ‘political’ reasons, but the suggested victimization of Mr Martin pales into insignificance next to the much larger conspiracy – the conspiracy to dispatch these despicable crimes as expeditiously as possible from the public arena.  Protection is being offered, but I’m not sure it’s being offered to children.

The response of Tim Ellis, DPP, HERE