R v Foster; R v Foster; R v Regan

Case •

[2023] NSWDC 549

•

08 December 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Foster; R v Foster; R v Regan [2023] NSWDC 549
Hearing dates: 15 – 18, 21 – 24 August 2023, 7 – 9, 24 November 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Jurisdiction:Criminal
Before: J Smith SC DCJ
Decision:

See [68]

Catchwords:

CRIME – co-accused – historical sexual assault – Judge alone trial – amending the indictment after commencement of the trial – whether the Crown can rely on section 80AF of the Crimes Act 1900 (NSW) – ex officio indictment – whether there would be any injustice if the Crown were granted leave to amend the indictment at a late stage of the proceedings

CRIME – what constitutes the ratio decidendi of a case – where legislation has changed during the period in which an offence was allegedly committed

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) New South Wales

Criminal Procedure Act1986 (NSW)

Cases Cited:

AC v R [2023] NSWCCA 133

Bristol-Myers Squibb Company v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524

Brunner v Greenslade [1971] CH. 993

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR

Hill v Zuda (2022) 275 CLR 24

Mabo v Queensland (No. 2) [1992] HCA 23; 175 CLR 1

McBride v Monzie Pty Ltd [2007] FCA 1947; 164 FCR 559

MJ v R [2013] NSWCCA 250

R v MAJW [2007] NSWCCA 145; 171 A Crim R 407

R v Rajendran [2010] NSWCCA 322; 206 A Crim R 316

Stephens v The Queen (2022) 273 CLR 635

Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817

Ying v Song [2009] NSWSC 1344

Texts Cited:

J Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review 597.

New South Wales, Department of Justice, Child Sexual Offences Review Discussion Paper (2017)

Category:Principal judgment
Parties: Director of Public Prosecutions (Crown)
Scott Foster (Accused)
Shane Foster (Accused)
Craig Regan (Accused)
Representation:

Counsel:
K Henry (Crown Prosecutor)
D Petrushnko (Accused Scott Foster)
P Doyle (Accused Shane Foster)
P Hogan (Accused Craig Regan)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Moat Law (Accused Scott Foster)
Doyle Legal (Accused Shane Foster)
Sydney Criminal Defence & Traffic Lawyers (Accused Craig Regan)
File Number(s): 2021/087059
2021/117619
2021/254499
2021/288729
Publication restriction: Statutory non-publication order regarding the name of the complainant or anything that might identify them

Judgment

  1. The three accused, Scott Foster, Shane Foster and Craig Regan are being tried on an indictment containing 13 charges concerning historical sexual offences said to have been committed against the complainant, KH who was born on 27 November 1973 and was, at the time, a child.

  2. The indictment originally contained 15 counts; however, counts 14 and 15 related to a complainant who has died and, after her statement was ruled inadmissible, the Director made a decision to take no further proceedings in respect of those counts.

  3. After each of the accused consented to a trial by judge alone and the Crown, too, consented to that course, the hearing commenced before me sitting alone on 15 August 2023. At the close of the Crown case on 24 August 2023 the Crown applied to amend the indictment in a number of ways. Relevantly, it sought to amend counts 4, 5, 8 and 11 to address a difficulty that had arisen on the evidence concerning the date of the offences alleged in each of those counts. Its application in this respect relied upon section 80AF of the Crimes Act 1900 (NSW).

  4. The only real objection to that course by any of the accused was taken by Mr Regan, essentially because he relied upon an alibi notice. It is unnecessary for present purposes to rehearse that argument other than to say that it was not contested that it was available to the Crown to rely upon section 80AF for the purposes of the application made after the close of the Crown case.

  5. At the conclusion of argument I granted leave to the Crown to amend the indictment in the manner sought: see Tcpt, 24 August 2023, p 399-400. At the same time, I directed that a verdict of not guilty be entered in respect of counts 2 and 7 and noted that, given the evidence that had been adduced, the Crown reserved its position in respect of count 6. The basis of my decision to allow the amendment was that any unfairness could be overcome by an adjournment of the trial. The trial was then adjourned for further hearing to commence on 7 November 2023.

  6. Upon resumption of the hearing, the Crown informed me that there had been recent developments in the case. First, that count 6 would not be proceeded with but that there was an ex officio indictment relied upon in its place; and secondly that there was a real question whether the prosecution could rely on section 80AF to amend the indictment once the trial had begun. The Crown said that this issue arises in light of the decision of the High Court in Stephens v The Queen (2022) 273 CLR 635 at [45]-[47] (Keane, Gordon, Edelman and Gleeson JJ, Steward J dissenting) (“Stephens”).

  7. I note that leave had also been given to amend count 13; however, that count had always relied on section 80AF and so is not affected by this new issue.

  8. The initial position of the Crown was that this part of the judgment of the majority in Stephens was not seriously considered obiter dicta and should not be followed. It argued that, in spite of what was said there, it could rely on section 80AF to amend an indictment after arraignment so as to overcome the uncertainty in the evidence as to the precise time at which the offences were alleged to have occurred.

  9. After further consideration, the Crown put forward an alternative argument relying on the decision of the Court of Criminal Appeal in MJ v R [2013] NSWCCA 250 (“MJ”). This argument proposes a form of the indictment with both an expanded date range and reference to the provisions in the Crimes Act both before and after the relevant amendments effected during the period averred.

  10. Each of the accused objects to the proposed amendments. They say, first, that the relevant passage in Stephens was seriously considered dicta and ought to be followed and, secondly, that the decision in MJ is distinguishable from this case because that case did not concern an application by the Crown to amend the indictment after the close of its case.

  11. For the following reasons, I reject the Crown’s first argument, but accept the second argument and grant leave for the indictment to be amended in the form of the further amended indictment. I will set out the details of those amendments later in these reasons.

Stephens v R (2022) 273 CLR 635

  1. The question for decision in Stephens was whether section 80AF has the effect of expanding the scope of an accused’s potential criminal liability after their trial has commenced following the first arraignment by extinguishing the force of legal authorities in support of a path of acquittal: see [2].

  2. In that case, on 29 November 2018 Mr Stephens was arraigned before a judge in the District Court on an indictment containing 18 counts. The offences alleged against him were said to have been committed against a complainant from the time the complainant was 10 years old until 15 years old. 8 of the counts were charged contrary to section 81 of the Crimes Act which was in force until 8 June 1984 and 10 counts were contrary to section 78K of the Crimes Act which was in force from 8 June 1984 until 13 June 2003.

  3. On 1 December 2018, section 80AF came into force. [1]

    1. Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), Schedule 1 [46]; New South Wales, Commencement Proclamation (2018-671), 28 November 2018.

  4. After a discussion of the different descriptions of the temporal operation of legislative provisions, the majority (Keane, Gordon, Edelman and Gleeson JJ) explained that the underlying principle concerning the interpretation of the temporal operation of legislation is based upon reasonable expectations: [33]. Their Honours said further that section 80AF is plainly intended to operate retroactively to some extent, however, that to construe it as being completely retroactive would significantly disturb reasonable expectations about the manner in which the law is implemented: [37]-[38]. They explained that it would not merely mean that the law concerning section 81 of the Crimes Act was altered retroactively for future trials, but it would have the effect of changing that law for extant proceedings including those that commenced before section 80AF came into force where forensic decisions including a plea of guilty or not guilty or the scope of cross-examination of witnesses may have been made in reliance upon the previous law. The majority’s conclusion was expressed at [45]:

On its proper interpretation, s 80AF does not operate with respect to trials that had already commenced when the section came into force. Moreover, on its terms, s 80AF may be invoked only at the commencement of a trial, not after the trial has already commenced. Two considerations support this conclusion.

  1. Those two considerations were:

[46] First, s 80AF(2) states that a person “may be prosecuted”. That phrase is apt to refer to the commencement, not the continuation, of the criminal proceedings in which an accused is tried. Secondly, ss 80AF(1)(a) and 80AF(2) apply so that “a person may be prosecuted” where, amongst other things, it is “uncertain as to when during a period conduct is alleged to have occurred”. That uncertainty appears textually expressed as uncertainty prior to the commencement of the prosecution, rather than an ambulatory concern with uncertainties that arise during trial so that an accused person can continue to be prosecuted. It suggests a reference to uncertainty of the Crown prior to the commencement of the prosecution.

[47] It is likely that there will be some such uncertainty in a great many historic sex offence prosecutions and it may be that a prosecution in reliance upon s 80AF will become an almost invariable approach in such cases. But an interpretation of s 80AF which restricts its retroactive effect, by requiring that the Crown elect to take advantage of a provision making a change in the law before the trial commences, is supported by textual indications as well as reasonable expectations of such operation. Indeed, those reasonable expectations must be part of the expressed concern for “fairness” to which reference is made in the Departmental Review which was part of the context of the enactment of s 80AF (citations omitted).

  1. As I have said, the Crown submitted that, with the exception of the first sentence in [45], this passage from the judgment of the majority is obiter dicta. It further says that it was not “seriously considered dicta” and further that it is wrong.

  2. I reject the Crown’s argument for two reasons: first, it takes too narrow a view of the reasons expressed in the whole of the judgment of the majority and, secondly, it ignores the well-established proposition that there can be two or more reasons for a decision.

  3. It may be observed at the outset that, although the terms “obiter dicta” and “ratio decidendi” are well-known to lawyers and often used, they disguise a very complex set of issues concerning the underlying principle of stare decisis, [2] one of what may be described as the skeletal features of the common law. [3] The tension within that principle is the expectation that the law will develop and yet will remain the same. It is perhaps for that reason that the meaning ascribed to these terms, the difference between them and the consequences of that difference are themselves matters of dispute and are evolving. In AC v R [2023] NSWCCA 133 the Chief Justice put this more eloquently at [33] when he observed that:

The distinction between ratio and obiter is easy to state but sometimes less easy to identify. In Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817 (Wu) at [24], the Full Court of the Federal Court observed that the principles governing the identification of ratio decidendi in any given case are “difficult to articulate with precision” and, as shall be seen, views differ as to what should be considered ratio decidendi.

2. See J Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review 597.

3. Mabo v Queensland (No. 2) [1992] HCA 23; 175 CLR 1 at [29] (Brennan J).

  1. As his Honour later records, the orthodox approach is that a conclusion of law will form part of a case’s ratio decidendi only if it was essential or necessary to the outcome of the case (in the sense that the judgment or orders of the Court would not have been the same if not for the conclusion in question). However, that approach has been modified, so that there is now established support, at appellate level in Australia, for the proposition that at a minimum, the ratio of a case should at least include every ruling on a point of law that is treated by the Court as a necessary step in reaching its ultimate conclusion in a case whether or not that ruling is in favour of or against the party who obtains an order or judgment: Bristol-Myers Squibb Company v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524 at [160].

  2. Given that this matter is to be decided, at least in the first instance, in a trial court, I consider that the broader approach is the one that I should take.

  3. On that understanding of what constitutes the ratio decidendi of a case, there can be little doubt that paragraphs [45]-[47] of Stephens express the ratio, or rather, rationes, of that decision. Those paragraphs deal with issues of law that were argued and each of which was dispositive of the matter before the Court.

  4. The question posed by the majority at [2] was not limited to the circumstances factually present in that case, namely that the trial had begun before the commencement of the provision. Rather, the question before the Court included whether section 80AF operated in its terms following the first arraignment. The question was framed by the Court at a greater level of generality than is admitted on the Crown’s argument in this Court.

  5. It was not in question before the Court that the first arraignment relevantly marked the commencement of the trial: see [7]. Once that is understood, it is clear that there were two reasons given by the majority for the decision: first, that section 80AF did not operate with respect to trials that had already commenced when the section came into force; and secondly, and in any event, it did not operate once the trial had commenced. Each of those reasons dealt conclusively with the factual circumstances in the matter.

  6. Further, it is well-established that there may be more than one reason for deciding a case: McBride v Monzie Pty Ltd [2007] FCA 1947; 164 FCR 559 at [6]. [4]

    4. Finkelstein J citing Crowther v Thorley (1884) 50 LT 43, 46; Commissioners of Taxation for New South Wales v Palmer [1907] AC 179, 184; Cheater v Cater [1918] 1 KB 247, 252; London Jewellers Ltd v Attenborough [1934] 2 KB 206, 222; Jacobs v London City Council [1950] AC 361, 369; Bristol-Meyers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524, 570-571 at [160].

  7. For those reasons, it is part of the ratio, or one of the rationes of the decision in Stephens that section 80AF cannot be relied on once the trial has commenced.

  8. If I am wrong about that, however, I nevertheless consider that I am bound to follow it.

  9. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR (“Farah Constructions”), the High Court identified two decision making principles. The first was that an intermediate appellate Court should not depart from seriously considered dicta of a majority of the High Court: see p 151 at [134]; and, quelling any doubt about the extent of that decision, see Hill v Zuda (2022) 275 CLR 24 at [25].

  10. The question of what constitutes ‘seriously considered dicta’ is not answered in any simplistic way. However, some considerable guidance was given to the approach to that question by Justice Ward (as her Honour, the President then was) in Ying v Song [2009] NSWSC 1344 at [21] and following. There, her Honour referred to the following statement in the judgment of Megarry J in Brunner v Greenslade [1971] CH. 993 at 1002–1003:

A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio.

  1. The transcript of the hearing in Stephens which took place on 16 June 2022 [5] shows that the question of the operation of the provision prior to the commencement of the prosecution was well ventilated. As Edelman J put it, one of the questions arising on the appeal was whether section 80AF intended to change the rules of the game once the game had begun. Gleeson J raised the scenario where the trial had begun after the enactment of section 80AF. The Crown also addressed the issue directly in its oral submissions.

    5. Stephens v R [2022] HCATrans108.

  2. Paragraphs [46]-[47] of the judgment make it plain that the majority in Stephens gave careful reasons for the conclusion expressed in the second sentence of [45]. That paragraph relied not only upon the textual analysis of the provision but also the central principle of reasonable expectations in the determination of the temporal operation of legislation. In turn, the importance of the argument to the decision to be made is made even more pellucid by the fact that Steward J, in dissent, also addressed the issue: see [62].

  3. For those reasons, it is clear that this was not a mere passing remark or statement or some assumption, it was a considered judgment made after full argument. It was not argued that the principal expressed in Farah Constructions does not bind a trial judge and such a conclusion would be very odd indeed.

  4. For those reasons, the amendments made in reliance upon section 80AF ought not to have been made and the appropriate course is to revoke that leave. More specifically, leave to amend counts 4, 5, 8, and 11 is revoked and leave to further amend the indictment relying on s 80AF to include the ex officio indictment to add a further count pursuant to section 76 of the Crimes Act to replace count 6 on the indictment is refused.

MJ v R [2013] NSWCCA 250

  1. The Crown’s alternative application is to amend the indictment relying on the decision in MJ by replacing each of counts 4, 5, 8 and 11 with an ex officio count with an enlarged time frame and to include a further ex officio count to replace count 6. There would then be no further proceedings in respect of the current counts 4, 5, 8, 11 and 6.

  2. The Crown says that, where legislation has changed during the period in which an offence was allegedly committed, but the conduct was nevertheless a criminal offence throughout that period, it is permissible to have a single count on the indictment averring the basic offence, that is, the essential elements that establish both offences, and to refer to both the old and new sections and law part codes.

  3. If that approach is available, as the Crown says it is, there is a question as to whether it would effectively bypass section 80AF and render it of little, if any, utility.

  4. There was no issue taken that the proposed amended indictment would, in fact, establish offences throughout the timeframe. I accept that that is the case.

The proposed amendments

  1. Counts 4, 5, 6 and 8 are brought against Scott Foster alone.

Count 4

  1. The charge in count 4 is “assault female under sixteen and commit act of indecency (cunnilingus)”. The time frame is currently 25 November 1980 to 13 July 1981. The charge is brought as an offence under section 76 of the Crimes Act as it was in that period. In her evidence, KH said that this occurred when she was “around maybe seven and a half, eight years old” (see Tcpt, 17 August 2023, p 59(22)). As she was born in November 1973, her evidence, if accepted, means that the offence could have been committed as late as November 1981.

  1. Section 76 was repealed with effect on 14 July 1981. On that day section 61E came into effect. Subsection 61E(1) provided for a penalty of six years imprisonment for any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, if the other person is under the age of sixteen years. That provision has precisely the same elements as section 76 except that it relates to the complainant as a person rather than a female. That difference is immaterial, the latter being a subset of the former.

  2. On that basis, the Crown seeks to rely on an ex officio count in the following form and will no longer proceed on the current count (the differences are underlined and the anonymisation of the complainant’s name):

“Between 25 November 1980 and 24 November 1982 [ …] did assault a female named KH and at the time of that assault committed an act of indecency upon KH, she the said KH being then under the age of sixteen years, namely the age of seven or eight years.

S 76 Crimes Act 1900 Law part code 350 / s 61E(1) Crimes Act 1900 Law part code 262”

Count 5

  1. Count 5 is also an allegation of “assault female under sixteen and commit act of indecency (rubbing penis near vagina and ejaculating on vagina)”. The time frame is currently 14 July 1981 to 31 December 1982. The charge is brought as an offence under section 61E(1) of the Crimes Act. In her evidence, KH said that this occurred in “1980, 1981 thereabouts” (see Tcpt, 27 August 2023, p 63(32)). That timeframe would include a period prior to the introduction of section 61E(1).

  2. In light of that, the Crown seeks leave to amend the indictment to include an ex officio count in the following form and will no longer proceed on the current count:

“Between 1 January 1980 and 31 December 1981 [ …] did assault a female named KH and at the time of that assault committed an act of indecency upon KH, she the said KH being then under the age of sixteen years, namely the age of six, seven or eight years.

S 76 Crimes Act 1900 Law part code 350 / s 61E(1) Crimes Act 1900 Law part code 262”

  1. The underlining should probably be under section 76, rather than section 61E, but the intent is clear.

Count 6

  1. Count 6 is said to have occurred at the same time as count 5. As it stands, it alleges that the accused had sexual intercourse without consent with a person under the age of sixteen (sexual assault category 3 – fellatio). It is brought under section 61D(1) of the Crimes Act which was introduced on 14 July 1981 and had a penalty of ten years imprisonment. The time frame is currently 14 July 1981 to 31 December 1982. In her evidence, KH said that this occurred in “1980, 1981 thereabouts” (see Tcpt, 17 August 2023, p 63(32)). That timeframe would include a period prior to the introduction of section 61D(1).

  2. In light of that, the Crown will no longer proceed with count 6 and seeks leave to amend the indictment to include an ex officio count in the following form:

“Between 1 January 1980 and 31 December 1981 [ …] did assault a female named KH and at the time of that assault committed an act of indecency upon KH, she the said KH being then under the age of sixteen years, namely the age of six, seven or eight years.

S 76 Crimes Act 1900 Law part code 350 / s 61E(1) Crimes Act 1900 Law part code 262”

Count 8

  1. Count 8 is also an allegation of “assault female under sixteen and commit act of indecency (rubbing penis near vagina and ejaculating on vagina)”. The timeframe is currently 14 July 1981 to 31 December 1982. The charge is brought as an offence under section 61E(1) of the Crimes Act. In her evidence, KH said that this occurred in “around a similar age. Seven and a half – eight” (see Tcpt, 17 August 2023, p60(49)). KH was referring to the evidence that she gave about her age in respect of count 4. That timeframe would include a period prior to the introduction of section 61E(1).

  2. In light of that, the Crown seeks leave to amend the indictment to include an ex officio count in the following form and will no longer proceed on the current count:

“Between 25 November 1980 and 31 December 1982 [ …] did assault a female named KH and at the time of that assault committed an act of indecency upon KH, she the said KH being then under the age of sixteen years, namely the age of seven, eight or nine years.

S 76 Crimes Act 1900 Law part code 350 / s 61E(1) Crimes Act 1900 Law part code 262”

  1. Again, the underlining is perhaps misplaced.

Count 11

  1. Count 11 relates to Scott Foster, Shane Foster and Craig Regan. It is framed as “assault female under sixteen and commit act of indecency (fellatio)”. The timeframe is currently 1 January 1980 to 31 December 1980. The charge is brought as an offence under section 76 of the Crimes Act. In her evidence, KH said that this occurred after the other fellatio incidents [that is, count 6 (1980 – 1981) and count 13 (around seven or eight years old, i.e. November 1980 to November 1982)]” (see Tcpt, 17 August 2023, p60(49)). That timeframe would include a period after the repeal of section 76.

  2. In light of that, the Crown seeks leave to amend the indictment to include an ex officio count in the following form and will no longer proceed on the current count:

“Between 1 January 1980 and 24 November 1981 [ …] did assault a female named KH and at the time of that assault committed an act of indecency upon KH, she the said KH being then under the age of sixteen years, namely the age of six, seven or eight years.

S 76 Crimes Act 1900 Law part code 350 / s 61E(1) Crimes Act 1900 Law part code 262”

  1. The proposed amendments in relation to counts 4 and 11 each involve the averment of a lower offence than is possibly available. That is because, from 14 July 1981 both fellatio and cunnilingus could have constituted an offence under section 61D(1): sexual assault without consent on person under the age of sixteen years. However, given that lack of consent is an additional element of that charge, the Crown could not rely on it as well as the lesser offence in the earlier period.

  2. The principal issue taken by the accused is that the authority relied on by the Crown does not apply in the situation of an amendment during the trial, after the close of the Crown case. In order to address that argument, it is first necessary to set out what was decided by MJ.

  3. In MJ, the appellant was charged on indictment in respect of a number of child sexual offences said to have occurred between 19 October 1990 and 30 April 1991. A number of the counts were that the appellant “did assault [the complainant] and, at the time of such assault, committed an act of indecency upon [the complainant] a child then under the age of sixteen years … as well as being a person under the authority of [the appellant].” These counts referred to section 61E(1A) of the Crimes Act and the relevant Law Part Code. The appellant was convicted of each offence.

  4. The first issue on the appellant’s appeal arose out of legislative changes that occurred in the period averred. In particular, section 61E was repealed with effect from 17 March 1991. Section 61M was inserted by the same legislation and provided for the offence of aggravated indecent assault. The appellant argued that, in light of that amendment, the indictment charged an offence that was unknown at law or was bad for duplicity.

  5. McFarlane JA, with whom Adams and Latham JJ agreed, held that there was no unfairness when the legislation changed during the time particularised in the indictment and the essential elements, as set out in the indictment, were the same in both the repealed offence and the newly enacted offence. His Honour applied the decision in R v MAJW [2007] NSWCCA 145; 171 A Crim R 407, which concerned the sentence to be imposed in circumstances when the offence charged straddled two periods in which there were 2 different maximum penalties. His Honour further held that no duplicity arose because there was no overlap in the periods for which the sections operated.

  6. Apart from one reference in a footnote to the judgment of Steward J in Stephens, MJ has not, according to my research, been judicially considered at all. It was referred to in the discussion paper that led to the introduction of section 80AF [6] as support for the first principle I have stated above.

    6. New South Wales, Department of Justice, Child Sexual Offences Review Discussion Paper (2017) at 30 [6.10].

  7. One potential difficulty with the first principle expressed in MJ, as I have averted to already, is that it has the potential to undermine the utility of section 80AF and is thus arguably inconsistent with it. Put another way, the question arises whether section 80AF has altered the position described in MJ. This question was raised by counsel for Scott Foster and counsel for Craig Regan who both submitted that “MJ cannot be used in such a way that bypasses section 80AF.” However, neither submission explained why that is so. On its face, section 80AF does not limit any means of prosecuting offences where, as has occurred here, uncertainty about the dates of the events arises during the course of the Crown case. Rather, it appears to be an enabling provision that aims to address the uncertainty surrounding the means of dealing with the prosecution of allegations of historic sexual offences against children. However, I have come to no firm view about that and consider that it is best dealt with when it has been fully argued.

  8. It appears to me, then, that MJ supports the validity of an indictment that sets out a date range that traverses a change in the legislation and the essential elements of offences that lie on either side of that change. That is because, as McFarlane JA explained, that fact itself presents no unfairness. However, here, unlike in MJ, the indictment did not include the larger date range at the commencement of the trial. Indeed, it still does not and the Crown case has closed. In the circumstances, the critical issue is the application of section 20 of the Criminal Procedure Act 1986 (NSW). Under that provision, the Crown must either rely on the consent of the accused, which it does not have, or leave of the Court. The issue, then, is whether there would be any injustice if the Crown were allowed to amend the indictment at this stage of the proceedings.

  9. Of some assistance in this respect is a passage from the transcript of the hearing of Stephens in which the Crown Advocate, Mr Kell SC, was addressing the issue of the time at which uncertainty of dates can arise in connection with a criminal prosecution: [7]

MR KELL:   It can arise at the trial.

KEANE J:   If it arises at the trial, can it arise at the trial after the Crown case has concluded?

MR KELL:   Technically, it may arise if it arises during the trial, as recognised in the extrinsic material – if the uncertainty arises then rather than persists, it will typically arise from the evidence including cross examination of the complainant, rather than as matters in the defence case, because it is …

STEWARD J: In such a case – just to be clear – 80AF is not a perfect solution for the prosecution if the trial has started. You will need to get through section 20.

MR KELL:   Yes, that is right.

STEWARD J: Of course, if it turns up very late in the trial, the likelihood of leave being granted under section 20 will be relatively low[er] than if it had occurred at the start of the trial.

MR KELL:   Yes.

7. Stephens v The Queen [2022] HCATrans 108 at p 22.

  1. That said, the power to amend is commonly exercised where the evidence, as it emerges, is not entirely consistent with what is alleged in the indictment, for example, as to the date of an offence: R v Rajendran [2010] NSWCCA 322; 206 A Crim R 316 at [36].

  2. All of the proposed amendments concern Scott Foster. He did not raise any objection to the amendments sought by the Crown after the close of its case in August and, while he now objects, that is on the basis of power rather than any prejudice that will flow to the conduct of his defence if the amendment is allowed. As the Crown submits, his case is one of complete denial of any wrongdoing. There is nothing in the evidence insofar as it relates to him that creates any issue with the dates and the expansion of the date range in each case is relatively confined.

  3. Shane Foster did not object to the earlier amendment either. Addressing section 20 of the Criminal Procedure Act, his counsel makes two submissions: first, that this application by the Crown has led to further delay; and secondly, that the Crown was in possession of all the evidence at the close of the Crown case and obtained leave to amend the indictment on the evidence given in the trial, for that reason, no further amendment should be allowed. The first of these must be accepted. Delay in the prosecution of a trial is generally antithetical to the administration of justice. However, the delay occurred, in the first instance, to allow Craig Regan to address the amendments made at the close of the Crown case and, in the second instance, to address a legal issue properly brought by the Crown to the attention of both the Court and the parties. Finally, the delay is not inordinate, being several months, and, as the trial is being conducted before a judge without a jury, will have less, if any impact on the ultimate decision.

  4. The second argument does not grapple with the fact that the amendments made at the close of the trial were, in respect of the counts I am now considering, improperly made in light of the decision in Stephens. For that reason, the fact that there is now a further application causes no feasible prejudice to Shane Foster.

  5. Finally, Shane Foster’s case will not be prejudiced by the amendment because his case appears to be that he did engage in some misconduct with KH, but not of the frequency or seriousness as she alleges in her evidence. Thus, the date range of her allegations does not impinge on his ability to prepare or run his defence. That is particularly so because the present application as it relates to him only concerns one count, count 11.

  6. Count 11 is also the only count that concerns Craig Regan. As I said in my judgment granting leave to amend in August, there was some potential unfairness in the amendment because, unlike the other accused, he relies on alibi in his defence. It was for that reason that an adjournment was granted to allow him time to address the expanded time frame. He has now had that opportunity and the amendment by a different route will give rise to no further prejudice. Counsel for Mr Regan did not suggest otherwise.

  7. For those reasons, I conclude that the amendments to counts 4, 5, 6, 8, and 11 in the manner proposed by the Crown is available at law and, as no injustice will flow from the amendments, leave ought to be granted to the Crown pursuant to section 20(1)(a) of the Criminal Procedure Act.

  8. I make the following order:

  1. The Crown has leave to amend the indictment to include further counts as set out in [41], [43], [46], [48] and [51] of these reasons.

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Endnotes

Decision last updated: 08 December 2023

Cases Citing This Decision

0

Cases Cited

15

Statutory Material Cited

3

AC v R [2023] NSWCCA 133
Bristol-Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22