Director of Public Prosecutions v Kerry (a pseudonym) (No 5)

[2022] ACTSC 321

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director of Public Prosecutions v Kerry (a pseudonym) (No 5)

Citation:

[2022] ACTSC 321

Hearing Date:

21 November 2022

DecisionDate:

21 November 2022

Before:

McCallum CJ

Decision:

The trial must proceed by judge alone

Catchwords:

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Election for trial by judge alone — Historical offence contrary to now repealed provision of the Crimes Act 1900 (ACT) — Whether offence is an “excluded offence” within the meaning of s 68B of the Supreme Court Act 1933

Legislation Cited:

Crimes Act 1900 (ACT), s 76

Legislation Act 2001 (ACT), s 102
Income Tax Assessment Act 1936 (Cth)

Supreme Court Act 1933 (ACT), s 68B, sch 2

Cases Cited:

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297

R v Girvan [2012] ACTSC 142

R v Simmons; R v Moore (No 4) [2015] NSWSC 259

Parties:

Director of Public Prosecutions

Zeph Gerard Kerry (a pseudonym) (Accused)

Representation:

Counsel

A Williamson SC (DPP)

J White SC with T Jackson (Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT (Accused)

File Number:

SCC 39 of 2022

McCallum CJ:

1. This application raises a difficult question concerning the validity of an election for trial by judge alone.  The trial is due to commence later this morning and accordingly it has been necessary to determine the application urgently.   

1. The accused, known by the pseudonym “Zeph Gerard Kerry”, is charged with historical sexual offences contrary to the now repealed s 76 of the Crimes Act 1900 (ACT). At all relevant times, that section provided:

A person who assaults a female and at the time of, or immediately before or after, the assault  commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to penal servitude for five  years.

1. The offences are alleged to have been committed in the early 1970s (count 1) and the early 1980s (count 2) respectively.

1. On 25 October 2022, the accused filed an election for trial by judge alone. He contends that he is entitled to do so in accordance with s 68B(1) of the Supreme Court Act 1933 (ACT), which provides that a criminal proceeding “other than an excluded offence” must be tried by a judge alone if an election is made in writing and certain other conditions are met.

1. The term “excluded offence” is defined by reference to a schedule to the Act which lists numerous statutory offences but only under current legislation.  The repealed section under which the accused is charged is not on the list.  It follows that, on a literal reading of the Act, the offences are not excluded and so can be the subject of an election for trial by judge alone.

1. The prosecutor nonetheless contends that the election is invalid because, on the proper construction of the statute, historical sexual offences should be regarded as “excluded offences” for the purposes of an election for trial by judge alone. 

1. I have concluded that the prosecution’s argument cannot be accepted and that the election is valid for the following reasons.

1. The section pursuant to which the accused is charged was repealed in 1985 and replaced with the predecessor to what is now s 61 of the Crimes Act.  Prior to the repeal of the section, there was no entitlement to a trial by judge alone in this jurisdiction.  It follows that, had the accused been charged at or around the time of the alleged commission of the offences, he would have been tried by jury and there would have been no alternative.

1. In 1993, legislation was introduced which permitted an accused person in the Territory to elect for trial by judge alone for the trial of any offence.  However, in 2011, that legislation was amended so as to create a category of excluded offences for which no such election could be made. 

1. It may be seen both from the contents of the schedule of excluded offences and, to the extent that it is necessary to confirm that impression, from the presentation speech in the Legislative Assembly that it was the intention of Parliament to exclude sexual offences (amongst others) from the range of offences as to which a trial by judge alone election could be made.  However, as I will explain, the legislation was prescriptive as to those offences which were excluded. 

1. As already noted, the mechanism of the relevant provisions is that s 68B of the Supreme Court Act confers a right for an accused person to elect to be tried by a judge alone for any offence other than an “excluded offence.” That term is defined in s 68B(4) to mean “an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone – excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.”

1. As to the offence now known as an offence contrary to s 61 of the Crimes Act, the entry is as follows:

column 1 item	column 2 legislation	column 3 provision and case (if any)	column 4 description
17	Crimes Act	61	acts of indecency with young people

1. The prosecutor accepted that the offences with which the accused is charged are not expressly included in the schedule of excluded offences.  The burden of the argument was that the conclusion that the offences were “excluded offences” was to be reached as a matter of statutory construction.  Two principal arguments were put forward by the prosecutor.

1. First, the prosecutor relied on s 102 of the Legislation Act 2001 (ACT) which provides:

(2)    In an ACT law, a reference to a provision of a law includes a reference to the following:

(a) the provision as originally made, and as amended from time to time since it was originally made.

1. The contention as I understood it was that the Court could, in effect, regard s 61 as a version of s 76 as it stood at the time these offences are alleged to have been committed.

1. As submitted on behalf of the accused, the difficulty with that contention is that the s 76 offence was, in fact, expressly repealed. I would read s 102(2)(a) to refer rather to an offence contained in a statutory provision which may from time to time be amended in various ways. Here, there was a wholesale replacement of the former kind of offence known as sexual assault with a different kind of offence which is the offence of an act of indecency.

1. It may be accepted that both are, in broad terms, sexual offences but I do not think I can properly conclude that the current offence of committing an act of indecency is the same as the former offence of indecent assault.  As noted in the accused’s submissions, there are substantial differences between the offences.

1. Mr White SC, who appeared on the present application with Mr Jackson for the accused, noted in written submissions, without being exhaustive, that at least the following differences can be identified. First, the gravamen of the s 76 offence was an assault upon a female, whereas s 61 does not require an assault. Secondly, s 76 did not just apply to young persons but to all female victims of any age. Thirdly, s 76 applied only to female victims, whereas s 61 does not discriminate in that way. Fourthly, completely different defences were available and, fifthly, different penalties were prescribed.

1. Had the difference been confined to the fourth and fifth matters, the conclusion might more readily have been reached that they were, in effect, the same offence but I think the fundamental differences in the elements of the offence preclude that conclusion, as does the fact that the section was expressly repealed and replaced with a new regime.

1. The second principal argument relied upon by the prosecutor was the contention that, as a matter of statutory construction, the Court could be satisfied that offences contrary to s 76 of the old legislation should be understood to be excluded.

1. That was said to be a conclusion which could be reached from the plain intention of the legislation to carve out sexual offences from the scope of offences in which a trial by judge alone could be elected by an accused.  The prosecutor’s submissions set out at paragraph 35 an extract from the presentation speech in the Legislative Assembly which makes that purpose plain.

1. There was, at the time of the amendment, evidently a measure of consternation in public discourse as to the unexpected extensive use of the entitlement to elect for trial by judge alone and that was a matter which Parliament evidently sought to correct.  That same concern, incidentally, is referred to in the judgment of Refshauge J in the decision of R v Girvan [2012] ACTSC 142 referred to in the parties’ submissions.

1. The difficulty is that the construction contended for by the prosecutor would require the Court to conclude that the legislature intended the amendment to have retrospective effect in the case of historical offences.  That, I think, would be a bridge too far in the Court’s construction of the words chosen by the legislature. 

1. It is trite that the Court must respect the separation between its powers and those of the legislature.  It seems to me that there is every possibility that the omission of historical offences was a matter of oversight.  However, I do not think I can draw that conclusion with the confidence required by the authorities relied upon by the prosecutor.

1. One of the submissions made in that respect invoked the principle stated in the decision of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 where it was observed that the interpretation of a statute may depart from the apparent meaning where that meaning would produce an “incongruous result” (at [157]) or would defeat the objects of an Act (at [311]).

1. The decision in Cooper Brookes was concerned with an amendment to the Income Tax Assessment Act 1936 (Cth) which, on its literal meaning, extended the application of a permissible tax deduction in a way that was plainly unintended. The Court was able to conclude from that incongruous result that the intention of Parliament had miscarried. The mechanism of statutory construction upheld (by majority, Aickin J dissenting) was to read the additional words “where appropriate” into the incongruous provision. The position here is different because the schedule under consideration specifies the Acts and section numbers of the offences as to which an accused person cannot elect for trial by judge alone. To read additional provisions into the schedule would take that approach to statutory construction significantly beyond the approach approved by the High Court in Cooper Brookes. 

1. It is not necessary for today’s purposes to determine an issue raised by the parties’ submissions as to whether the entitlement of an accused person to make an election for trial by judge alone is properly characterised as a substantive right.  There was some discussion of that issue in the decision of Hamill J in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 where his Honour said at [59] that he did not regard the election as a right. His Honour may be taken to have been referring to the concept of a common law right, the abrogation of which would require clear words in accordance with the principle of legality.

1. Whether or not the election here is properly characterised as a right in that sense, it is clear enough on the plain words of the statute that the accused is charged with offences which are not listed in the schedule of excluded offences.  I do not think I can properly construe the legislation in any other way than to accept that the accused’s entitlement to elect for trial by judge alone is not excluded by the legislation.

1. For those reasons my ruling is that the election is valid and that the trial must proceed by judge alone.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Chief Justice McCallum.

Associate:

Date: