R v Bell
[1991] TASSC 61
•6 May 1991
Serial No 41/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Bell [1991] TASSC 61; (1991) Tas R 61; A41/1991
PARTIES: R
v
BELL, Kevin Richard
FILE NO/S: C289/1990
DELIVERED ON: 6 May 1991
JUDGMENT OF: Zeeman J
Judgment Number: A41/1991
Number of paragraphs: 16
Serial No 41/1991
List "A"
File No C289/1990
THE QUEEN v KEVIN RICHARD BELL
REASONS FOR JUDGMENT ZEEMAN J
(RULING DURING THE COURSE OF TRIAL) 6 May 1991
The accused has been presented upon an indictment which inter alia charges him with twelve counts of rape. It is alleged that those crimes were committed between about April 1982 and September 1985. Accordingly, each crime of rape for which the accused is being tried is rape as defined by the Criminal Code prior to the amendments effected by the Criminal Code Amendment (Sexual Offences) Act 1987. There is evidence before the jury upon the basis of which it would be open to the jury to find that at all relevant times the complainant was a female person who had not then attained the age of 17 years. The question arises as to whether the crime of defilement ought to be left as an alternative to the jury. Counsel for the accused has submitted that it is not open to me to leave that alternative. If defilement is capable of being left to a jury on an indictment for rape filed after the Criminal Code Amendment (Sexual Offences) Act 1987 commenced in respect of rape allegedly committed before that Act commenced, then the evidence is such that that alternative ought to be left.
Prior to being replaced by the amending Act, s335 of the Criminal Code provided that upon an indictment for rape an accused might be convicted inter alia of defilement of a girl under 17 years of age. That section, in its present form, provides that upon such an indictment, the accused person may be convicted of inter alia sexual intercourse with a young person under 17 years of age.
The argument addressed by counsel for the accused may be summarized as follows:
(a)It cannot be open to the jury to convict the accused of sexual intercourse with a young person under 17 years of age because no such crime existed at the times that the accused allegedly raped the complainant.
(b)Section 16(1)(c) of the Acts Interpretation Act 1939 operates so that where an act repeals any other enactment, then unless the contrary is expressly provided, such repeal shall not affect any obligation or liability incurred under the repealed enactment.
(c)The Criminal Code Amendment (Sexual Offences) Act 1987 repealed the then existing s335 and replaced it with a new s335.
(d)The liability incurred by the accused under s335 of the Criminal Code in its former form was to be convicted for defilement upon an indictment for rape.
(e)That liability is one which derives from an indictment so that no liability is incurred until such time as there is such an indictment.
(f)No such liability can be said to have been incurred in the absence of such an indictment.
(g)As the present indictment is one made and filed on 8 November 1990, it follows that there was no incurred liability.
(h)In the absence of a saving provision such as that contained in s16(1)(c) of the Acts Interpretation Act the repealed provision cannot be called in aid.
I will assume that the changes to s335 may properly be described as having been effected by a repeal of the existing section and the enactment of a new section. It may be that s25 of the Criminal Code Amendment (Sexual Offences) Act (which effected the alterations to s335 of the Code) ought not to be treated as a repealing provision but rather as an amending provision, although I tend to think not. The competing considerations were discussed by Gibbs J (as he then was) in Mathieson v Burton (1970–1971) 124 CLR 1, at pp20–22. If s25 is not to be construed as effecting a repeal, then common law principles are relevant. It is unquestioned that if all the facts necessary to establish the accused's liability to be convicted of the crime of rape or the crime of defilement existed at all, they were in existence before the relevant changes to the law. The liability to be convicted of either of those crimes was a liability in existence at the relevant time. That view is in accord with that expressed by Burbury CJ in Manning v Howlett [1971] Tas SR 85 at p91. At the time the law was changed, the accused was subject to a liability (if there was any liability at all) to be convicted of rape or of defilement, which liability had accrued at the date of the commission of the relevant crime (if, in fact, it was committed) (see Anderson v Elvins; Ex parte Anderson [1980] Qd R 382). Plainly, the procedure at the trial and the rules of evidence to be observed thereat are to be determined by reference to the law as it presently stands. Rodway v The Queen (1990) 169 CLR 515 is authority for that proposition. Perhaps even the liability to punishment is to be determined by the present law, at least where there has been an amendment rather than a repeal (Lewis v French [1962] Tas SR 138).
The liability of the accused was in respect of the crimes committed by him (if, in fact, such crimes were committed) and by s7 of the Criminal Code Act 1924 (which has not, at any time, been amended) that liability was enforceable by way of an indictment to be prosecuted in accordance with the provisions of the Criminal Code relating thereto. The former provisions of s335 of the Criminal Code were provisions regulating the manner in which that liability might be enforced and in that sense may be described as regulating the practice and procedure applying to the proceedings. The liability the subject of s16(1)(c) of the Acts Interpretation Act was the accused's liability to be proceeded against for the crimes of rape and defilement. The relevant liability being so defined it follows that the liability to be convicted of an alternative crime on an indictment charging rape is not the subject of s16(1)(c) so that the present question is to be determined by reference to common law principles. General principles were expressed by Dixon CJ in Maxwell v Murphy (1956–1957) 96 CLR 261 at p267 in the following terms:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done' (at p69)."
In Rodway v The Queen (supra) the court, in its joint judgment, said, at p521:
"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial."
Whilst s335 of the Criminal Code is, and was in its former form, a provision regulating the manner in which the liability of persons committing relevant crimes might be enforced, it is not suggested that the accused's liability (if it exists) ought to be or is even capable of being enforced by reference to s335 in its present form. That section was amended in a manner which was necessarily consequential upon the amendments to the Criminal Code which created new crimes and repealed provisions creating other crimes. This is not a case where although there has been a change in procedure both the former procedure and the new procedure are such that either is capable of governing the relevant proceedings. If the crime of defilement is to be left open to the jury at all, it can only be upon the basis of the repealed s335 continuing to have effect. There is no procedural provision in the Criminal Code, in its present form, enabling such a verdict to be left open to the jury.
The expressions of principle in the reported cases to which I have referred relate to questions involving a determination as to whether or not a change to the law is to be regarded as being procedural in nature, the choice between applying the former law and the present law being determined by reference to whether or not the alteration in the law is found to have been in relation to a matter which is procedural in nature. They are not concerned with a question such as that arising in the instant case where the substantive law has been altered (that alteration clearly attracting the provisions of s16(1)(c) of the Acts Interpretation Act) and at the same time a procedural provision has been altered by way of providing for a necessary consequential amendment.
The question which I need to consider whether in order to give full effect to the perceived intention of the legislature, the alteration to s335 of the Criminal Code ought to be given restricted effect. The intention of the legislature to be derived from the Criminal Code Amendment (Sexual Offences) Act 1987 is that it intended to create a number of new crimes by new ss124, 126 and 127A of the Criminal Code, at the same time abolishing the crimes which had been created by the former ss124 and 126. The relevant change to s335 was necessitated by one of those changes in the law. Section 335, in its original form, referred to crimes no longer in existence. In those circumstances, that is where liabilities and procedure are dealt with in conjunction with one another, it may not be appropriate to permit the enforcement of the relevant liabilities other than by reference to the procedure peculiarly relevant to those liabilities.
Whilst it was in the context of accrued rights rather than liabilities, Sargant J in Re Hale's Patent [1920] 2 Ch 377 said:
"No doubt the general law is that, while rights are not statutorily altered retrospectively, procedure is, apart from indications to the contrary, altered retrospectively; but where rights and procedure are dealt with together ..... the intention of the Legislature would seem fairly clear – namely, that the old rights are still to be determined by the old tribunal under the [repealed] Act ..... and that only the new rights under the substituted section are to be dealt with by the tribunal thereby substituted ....."
The basis for the rule there referred to was explained by Kaye J in Sutton v Bradshaw [1988] VR 920 at p925 in the following terms:
"No doubt this rule is based upon the principle that the Court will construe a statute so as to give effect to the intention of the legislature, where that intention is clear or is derived by necessary implication. Furthermore, no reason comes to mind for confining the operation of the principle to procedures for enforcing rights repealed or substituted by subsequent legislation. It would seem to be equally applicable to evidentiary or procedural enactments enabling proof of both breach of obligation as well as enforcement of a right repealed."
Those observations were made in the context of holding that where there was a preserved liability to be prosecuted for an offence created by a repealed provision then special evidentiary provisions applying to the prosecution for such an offence which were repealed at the same time continued to apply to such a prosecution, that being the perceived intention of the legislature by necessary implication.
I construe the intention of the legislature as being one to effect the repeal only in so far as it was necessary mainly in so far as it related to crimes committed after the commencement of the Criminal Code Amendment (Sexual Offences) Act 1987. It is a matter of determining the purposes for which the repeal of s335 was effected. It is permissible to look at those purposes in construing the effect of the repeal and in particular to determine whether the repeal ought to be construed as being limited in its effect (see Wigram v Fryer (1887) 36 Ch D 87 at p100).
Expressions of opinion suggesting that it is not permissible to do so such as are to be found in cases such as Surtees v Ellison (1829) 9 B & C 750 at p752 and Kay v Goodwin (1830) 6 Bing. 576 at p582, are too wide. Whilst those cases are authority for the general common law rule, a merely procedural statute may indicate a contrary intention (see Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228 at p246 and Sutton v Bradshaw (supra) at p924).
The purpose of the repeal of the former s335 was to prescribe a procedural matter relevant only to the prosecution of the newly created crimes. It is limited in application to that purpose. Section 335 in its former terms continues to apply to indictments charging crimes committed prior to the commencement of the amending Act.
Accordingly, I propose to direct the jury that a conviction for defilement is open as an alternative on each count of rape.
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