SUPREME COURT OF QUEENSLAND
CITATION:
R v Crowden and Lambert [2021] QSC 252
PARTIES:
THE QUEEN
(Respondent)
v
IAN RONALD CROWDEN
(First Applicant)
and
MATTHEW GRANT LAMBERT(Second Applicant)
FILE NO/S:
Indictment No. 988 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application pursuant to s 590AA of the Criminal Code
DELIVERED ON:
6 October 2021
DELIVERED AT:
Brisbane
HEARING DATE:
5 October 2021
JUDGE:
Bowskill SJA
ORDERS:
The Court declares that in circumstances where the defendants were not charged with the offence the subject of count 5 until June 2019, by which time the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) had been repealed in its entirety, s 11(1) of the Criminal Code operates to prevent the defendants being punished for doing the acts the subject of count 5, in the circumstances alleged by reference to the VLAD Act, under s 7 of the VLAD Act, because it is no longer in force.
CATCHWORDS:
STATUTES – ACTS OF PARLIAMENT – REPEAL – EFFECT – GENERALLY – where the defendants were charged with an offence of assault occasioning bodily harm, under s 339(1) and (3) of the Criminal Code, with allegations that they were both “vicious lawless associates” and one of them was an “office bearer of the relevant association”, by reference to the Vicious Lawless Association Disestablishment Act 2013 (Qld) (VLAD Act) in June 2019, after the repeal of the VLAD Act – whether the defendants can now be punished for doing the acts the subject of the relevant charge, in the circumstances alleged by reference to the VLAD Act, under s 7 of the VLAD Act, having regard to s 11 of the Criminal Code and s 20(2)(c) and (d) of the Acts Interpretation Act 1954.
Acts Interpretation Act 1954 (Qld), s 20(2)
Criminal Code 1899 (Qld), ss 1, 2, 11, 339
Vicious Lawless Association Disestablishment Act 2013 (Qld)Commissioner of Taxation v Price [2006] 2 Qd R 316
Goli (Commissioner of State Revenue) v Thompson & Anor [2017] QDC 4
Kuczborski v Queensland (2014) 254 CLR 51
R v Barlow (1997) 188 CLR 1
R v Ellis [2002] QCA 402
R v Graham [2016] QCA 73
R v HXY & Ors [2017] QSC 108
R v JAA [2019] 3 Qd R 242
R v PAZ [2018] 3 Qd R 50
R v WAY; Ex parte Attorney-General (Qld) [2013] QCA 398COUNSEL: M Longhurst for the first applicant
S Lynch for the second applicantD Meredith for the respondent
SOLICITORS: Gatenby Criminal Lawyers for the first applicant
Dib & Associates for the second applicantThe Director of Public Prosecutions for the respondent
On 17 October 2013, the Queensland Parliament enacted the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act). Just over three years later, on 9 December 2016, it was repealed,[1] following a recommendation from a Taskforce on Organised Crime Legislation established by the Government. The repeal of the VLAD Act, in its entirety, was in circumstances where, as observed in the explanatory notes to the relevant bill:
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- AGLC
- R v Crowden and Lambert [2021] QSC 252
- Case
- [2021] QSC 252
- Decision Date
CaseChat Overview and Summary
The court had to determine if the repeal of the VLAD Act affected the previous operation of the Act and whether the defendants could still be held liable for the offence under the repealed Act. The court examined section 20(2) of the Acts Interpretation Act, which provides that the repeal of an Act does not affect a penalty incurred in relation to an offence arising under the Act. The court also considered section 11 of the Criminal Code, which requires that the law in force at the time of conviction be applied, and section 20(2)(c) and (d) of the Acts Interpretation Act, which address the saving of the operation of repealed Acts. The court concluded that the penalties incurred under the VLAD Act were still valid because they were incurred at the time the offence was committed, prior to the Act's repeal.
The court ruled that the repeal of the VLAD Act did not prevent the defendants from being punished for the acts in question under the Act, as the penalties were incurred prior to the repeal and were saved by operation of section 20(2)(d) of the Acts Interpretation Act. The court determined that the law in force at the time of conviction included the potential liability saved by operation of section 20(2)(d), which encompassed the additional punishment provided for under the repealed VLAD Act. The court's decision was consistent with previous cases such as R v HXY & Ors [2017] QSC 108 and R v PAZ [2018] 3 Qd R 50.
In summary, the court held that the defendants could be punished for the acts in question under the VLAD Act, notwithstanding its repeal, because the penalties were incurred prior to the repeal and were saved by section 20(2)(d) of the Acts Interpretation Act. The court's decision ensured that the defendants could not escape liability for the offence by virtue of the VLAD Act's repeal.
Orders
Orders of the court
The Court declares that in circumstances where the defendants were not charged with the offence the subject of count 5 until June 2019, by which time the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) had been repealed in its entirety, s 11(1) of the Criminal Code operates to prevent the defendants being punished for doing the acts the subject of count 5, in the circumstances alleged by reference to the VLAD Act, under s 7 of the VLAD Act, because it is no longer in force.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 20(2) of the Acts Interpretation Act relevantly provides as follows:“20 Saving of operation of repealed Act etc.(1)In this section –Act includes a provision of an Act.repeal includes expiry.(2)The repeal or amendment of an Act does not –(a) revive anything not in force or existing at the time the repeal or amendment takes effect; or(b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or(d) affect a penalty incurred in relation to an offence arising under the Act; or(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened. …” In R v HXY & Ors [2017] QSC 108, the defendants had been charged with trafficking and, variously, doing so as vicious lawless associates, or vicious lawless associates and office bearers. They were charged with the relevant offences before the repeal of the VLAD Act, although the indictments were not presented until after the repeal (see at [3], [5]-[9]). At [22] Douglas J found that s 20(2)(c), (d) and (e) of the Acts Interpretation Act:“allowed the liabilities and penalties allegedly incurred under the Drugs Misuse Act 1986 and the VLAD Act to continue to be the subject of a proceeding in relation to a liability or a penalty as if the repeal of the VLAD Act had not happened. That is on the basis that the liability or penalty is incurred at the time at which the offence takes place. That conclusion, namely that a penalty is incurred at the time at which the offence takes place, was put in issue for the applicants but my view is that the decision in Commissioner of Taxation v Price[10] applies and binds me and that the liability incurred includes one to the increased penalties under the VLAD Act.[11]”[10]Commissioner of Taxation v Price [2006] 2 Qd R 316, 337-338 at [58].[11]Referring to R v Brancourt (2013) 280 FLR 356, 359 at [16]-[17]; and Mansray v Rigby (2014) 292 FLR 404, 407-408 at [13]-[19]. His Honour further found that, regardless of whether the “offence” included as a circumstance of aggravation the VLAD allegations, a penalty relevant to that circumstance (ie the VLAD allegations) will have been incurred “in relation to” an offence for the purposes of s 20(2)(d) of the Acts Interpretation Act if the person is found guilty of the substantive offence with a relevant circumstance of aggravation (at [27]). The effect of that conclusion was that “the law in force at the time of conviction”, for the purposes of s 11(2) of the Criminal Code, was found to include the potential liability saved by operation of s 20(2)(d) – that is, the additional punishment provided for under the repealed VLAD Act (at [34]-[35]). This construction of s 20(2)(d) and s 11(2) was also applied by the Court of Appeal in R v PAZ [2018] 3 Qd R 50 at [178], but this was in the context of a different legislative provision (s 208 of the Criminal Code).