R v R S

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS
V
R S
JUDGE:	CHIEF JUDGE KIDD
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF RULING:	22 June 2016
CASE MAY BE CITED AS:	R v R S
MEDIUM NEUTRAL CITATION:	[2016] VCC 1464

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RULING ON RETROSPECTIVITY OF THE COURSE OF CONDUCT CHARGE

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Sonnet	Office of Public Prosecutions
For the Accused	Ms G Connelly	Dooge O’Brien George

HIS HONOUR:

INTRODUCTION

The impugned charge

The accused has been charged on indictment with 7 counts of indecent act with a child under the age of 16 years contrary to section 47(1), Crimes Act 1958.
The indictment was filed in the County Court at a directions hearing conducted on 7 March 2016.
The accused has indicated a plea of “not guilty” to all charges. The matter is set down for trial in the County Count at the Wangaratta sittings commencing 27 June 2016.
An issue has now arisen as to the legality of charge 1 – the accused contends that a “course of conduct” charge should not be accorded retrospective operation by the courts.
Charge 1 on the indictment avers a “course of conduct” charge. The charge is framed as follows:
Charge 1 The Director of Public Prosecutions charges that [the accused] at [regional town] in Victoria between the 5th day of January 2011 and the 29th day of December 2012 wilfully committed an indecent act with or in the presence of [the complainant] a child under the age of 16 to whom he was not married.
Particulars: Accused touched Complainant’s penis in bathroom/shower.
Note: Charge 1 is a Course of Conduct charge.
The circumstances of charge 1 are set out at para [5] of the Summary of Prosecution Opening as follows:
On various occasions between 5 January 2011 and 29 December 2012, [the complainant] was in the shower at the home of the accused. The accused assisted [the complainant] in the shower as he had trouble getting the water temperature right. While he was doing that, the accused washed him with one hand and used his other hand to touch and fondle [the complainant’s] penis. This happened on a regular basis when [the complainant] had a shower at the accused’s house and it happened on many occasions. [The complainant] states that this touching happened ‘every time’, ‘like every weekend’ he stayed with the accused and ‘just any time he would shower me’.

The course of conduct scheme and transitional provision

Section 13 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 inserted a new clause 4A in Schedule 1 to the Criminal Procedure Act 2009. The new clause 4A provides for a “course of conduct” charge (‘the course of conduct scheme’). I have replicated section 4A in Schedule A to this ruling. Schedule 1 deals with charges on a charge-sheet or indictment.
Section 4A (i.e. the course of conduct scheme) came into operation on 1 July 2015. The events to which Charge 1 relates occurred prior to this.
Section 16 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 also inserted a new section 445 into the Criminal Procedure Act 2009. Section 445 provides for a transitional provision in relation to a “course of conduct” charge. The section reads as follows:
A person may be charged with a course of conduct charge (within the meaning of clause 4A of Schedule 1) irrespective of when the incidents of the commission of the offence are alleged to have taken place.

The Parties submissions in a nutshell

Ms Connelly for the accused man has argued that, when properly construed, the course of conduct scheme does not apply to events which took place prior to its insertion or enactment. That is, it does not have retrospective operation. She says the course of conduct scheme imposes criminal liability and is not merely procedural and therefore the presumption against retrospectivity is enlivened. Moreover, that presumption is not rebutted. She further contends that sections 27(1), 27(2) and 25 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) are engaged by the course of conduct scheme. Conformably with section 32(1) of the Charter I should adopt a construction of the course of conduct scheme which least infringes those Charter rights. Approached in this way I should construe it as not applying retroactively. Alternatively, Ms Connelly says I should read down the relevant transitional provision (section 445 of the Criminal Procedure Act 2009) so that the retrospective application of the scheme is limited to the circumstances where an accused person enters a plea of guilty. In the further alternative, I should find that the relevant transitional provision is inoperable. In short, Ms Connelly makes application for me to permanently stay Charge 1 as it is defective, charging an offence not known to the law or upon a basis not available.
Mr Sonnet for the Crown argues that when the relevant transitional provision (section 445 of the Criminal Procedure Act 2009) is given its ordinary grammatical meaning it bears only one reasonable construction – the course of conduct scheme is to apply retrospectively, without qualification or limitation. The legislation does not impose criminal liability but is procedural in nature. But if the legislation does enliven the presumption against retrospective operation then that presumption is expressly rebutted by the language of section 445, with irresistible clarity. Sections 27(1), 27(2) and 25 of the Charter are not engaged, but if they are, it is not reasonably possible to read section 445 down. Charge 1 is properly and lawfully brought. I should therefore reject the application for a permanent stay.
As will become apparent, I have, in substance, accepted the arguments advanced by the prosecution.

COMMON LAW PRINCIPLES

Presumption applies to substantive not procedural changes

The general rule of the common law is that a statute is presumed not to operate retrospectively.[1] This applies when substantive rights are affected. It includes a presumption against the imposition of criminal liability of retrospective operation.[2]
[1]Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ
[2]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 609-612 per Deane J, 642-643 per Dawson J, 686-690 per Toohey J; See the maxim nullum crimen sine lege, nulla poena sine lege.
However, there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Nobody has a vested right to be tried in a particular way. In a unanimous judgment, the High Court observed in Rodway v The Queen[3]:
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.
[3]Rodway v The Queen (1990) 169 CLR 515 at 518.
The Court continued at 521:
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. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. ."
Their Honours in Rodway v The Queen,[4] nevertheless recognised that “the difference between substantive law and procedure is often difficult to draw,”[5] and moreover that "… the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation"[6]. A change that might be characterised as procedural in character may nevertheless affect a vested right adversely and therefore the general principle against retrospectivity will be followed. Such a change is not merely procedural and will fall within the presumption against retrospective operation.[7]
[4]Rodway v The Queen (1990) 169 CLR 515 at 518.
[5]Rodway v The Queen (1990) 169 CLR 515 at 518
[6]Rodway v The Queen (1990) 169 CLR 515 at 519
[7]Newell v R (1936) 55 CLR 707 is a case in point
Another relevant principle of statutory construction is that where the change impinges upon a fundamental common law principle, the right or principle should beextinguished only so far as is necessary to give effect to their provisions. In Rodway v The Queen,[8] their Honours held:
Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms. [authorities omitted].
[8]Rodway v The Queen (1990) 169 CLR 515.
It has also been said that the common law presumption against retrospectivity should be applied with particular stringency when the allegedly retrospective legislation modifies a fundamental principle of the criminal justice process.[9] It seems to me that if an Act impinges upon a fundamental criminal principle (whether it is procedural or substantive in character) there would have to be a clear statement by the legislature before it could be given respective operation. It might be that this approach is to be found in the presumption against the alteration of fundamental common law doctrine rather than in the presumption against retrospectivity - or a combination of the operation of both - but the end result is the same.
[9]R v JS [2007] NSWCCA 2007 at [46]

Parliament has power to make create retrospective laws

I then come to two principles, which are central to the resolution of this application.
The first is that Parliament unquestionably has the power to create retrospective laws.[10] That is so even if it attaches criminal liability to acts and facts in the past which were not at the time criminal. That is so even if the law is substantive in nature or is not ‘merely procedural’. It is equally so if the statute retrospectively alters a fundamental common law right or principle.
[10]See, for example, DPP (Cth) v Keating (2013) 248 CLR 459, at 479 [48]; R v Kidman (1915) 20 CLR 425;
The second principle is that a statute will not be construed in this way unless “the intention appears with reasonable certainty”[11], “the language of the statute expressly or by necessary implication requires such construction”[12], or “a special intention appears”.[13]
[11]Maxwell v Murphy (1957) 96 CLR 261 at 267
[12]Rodway v The Queen (1990) 169 CLR 515 at 518
[13]Newell v The King (1936) 55 CLR 707 at 711
If the legislature does this, ‘there is no room for the application of the rule or presumption against giving the legislation a retrospective construction.’[14]

APPLYING THESE PRINCIPLES TO COURSE OF CONDUCT SCHEME

[14]Polyuhkovich v Commonwealth of Australia & Anor (1991) 172 CLR 501 per Dawson J at p.644

Course of conduct scheme is intended to apply retrospectively

It is clear that the course of conduct scheme was designed to modify the common law requirements of particularity, and the rule against duplicity. The scheme is based upon the particular difficulty for a child victim of repeated sexual offences to remember, and to be able to particularise, the dates or exact circumstances involved. The course of conduct scheme allows for conviction upon the basis of imprecise and generalised evidence. That is the very reason it was enacted.[15]
[15]I refer to the Explanatory Memorandum and to Chapter 12 of the Department of Justice Consultation Paper entitled “Review of Sexual Offences”, October 2013, on which the course of conduct scheme was based.
In my view the legislature has squarely addressed the question of retrospectivity and declared, in clear and unmistakably clear language, in the form of section 445 into the Criminal Procedure Act 2009, that the scheme is to be fully retrospective.
I agree with the prosecution’s submission that the relevant phrase in the transitional provision – “irrespective of when the incidents of the commission of the offence are alleged to have taken place” – must be given its ordinary grammatical meaning.[16]
[16]Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
There is no reasonable alternative meaning. I agree with the prosecution’s argument that, “the intention of the legislature that the Act should have a retrospective operation could not have been more clearly expressed”.[17]
[17]Polyuhkovich v Commonwealth of Australia & Anor (1991) 172 CLR 501 per Dawson J at p.644
In the words of Dawson J, ‘there is no room for the application of the rule or presumption against giving the legislation a retrospective construction.’[18]
[18]Polyuhkovich v Commonwealth of Australia & Anor (1991) 172 CLR 501 per Dawson J at p.644
Lest there be any doubt (and I think there is none) there is a further part of the course of conduct scheme which manifests the legislature’s unmistakable intent that it apply retrospectively. The scheme applies to a ‘relevant offence’ and a ‘relevant offence’ includes a ‘sexual offence’. The note to subclause 4A(4) makes clear that a course of conduct charge can be filed in relation to acts which constitute an existing sexual offence, or offences under a previous enactment, and are not limited to the new sexual offences introduced by the Bill.
I am not strictly really required to decide the intermediate questions of whether the course of conduct scheme is substantive or procedural in nature or whether the presumption against retrospectivity is engaged. That is because even if it is substantive and even if the presumption is enlivened, I have concluded the presumption is very clearly rebutted. Whether the legislation is characterised as substantive or procedural, there is no overcoming the legislature’s unambiguously clear intent (expressed in the form of section 445) that the scheme applies retrospectively.
I have decided that I should nevertheless address these questions for completeness and out of deference to the arguments put to me on the application.

Presumption against retrospectivity is enlivened

Counsel for the accused man argued that the course of conduct scheme imposes criminal liability for acts which were not at the time criminal. She says the presumption against retrospectivity is thus enlivened.
I do not think the course of conduct scheme creates a criminal offence. The ‘relevant offence’ to which the course of conduct scheme applies in the case of the accused is the offence of an indecent act with a child under 16. This was an offence on the statute books prior to the commencement of the transitional provision on 1 July 2015. It was an offence at the time that the accused allegedly engaged in the acts.
The course of conduct scheme modifies the level of proof required to make out what has always been a criminal offence. As Maxwell P said in relation to the proof of offences under section 47A (maintain sexual relationship with a child under 16), ‘it is not possible as a matter of law for generalised evidence of multiple occasion to supply proof beyond reasonable doubt of a specific occasion”[19] (emphasis added). The course of conduct scheme essentially now allows generalised evidence of multiple occasions in the form of what ‘would’ routinely occur to supply proof of an offence. The scheme re-casts the specificity of the evidence required to sustain a conviction for the offence.
[19]REE v The Queen VSCA 124 at [20]
The real complaint of the accused is that the prosecution might now secure a conviction in circumstances where the prosecution may have previously failed to prove the offence because of a lack of particularity. So much must be accepted. Indeed the course of conduct scheme is aimed at achieving that outcome. The complaint is really that the means of proof has shifted the balance to the significant advantage of the prosecution and to the disadvantage of the accused. But that is different from the creation of new criminal liability.[20] In short, the conduct was always criminal. The incidents of a “course of a conduct” charge are, or are in the nature of, criminal acts in themselves. The course of conduct scheme permits the prosecution to prove that same criminal conduct without the need to meet the common law requirement of particularisation.
[20]The abolition of the requirement for corroboration – which made proof markedly easier for the Crown – did not retrospectively create a new criminal offence – see Rodway v The Queen (1990) 169 CLR 515.
The principle of particularisation and the rule against duplicity are an incident of fairness required for the conducting of a criminal trial rather than laying down any rule as to the commission of any offence.
Although not an element of any of the offences which can be charged using the course of conduct scheme, the requirement that the prosecution must prove ‘a course of conduct’ beyond reasonable doubt operates like an element of the offence and might, on one view, suggest that a new offence is created. It seems to me that this is directed to providing the procedural method by which the prosecution can now prove a ‘course of conduct’ of offending without the requirement of proving multiple discrete incidents of offending. It is addressing the common law requirement of particularity, not an element of the offence. The requirement that the course of conduct be proved beyond reasonable doubt is designed to provide ‘an appropriate counterbalance to charging the level of particulars that the prosecution must provide of specific incidents charged’[21].
[21]Department of Justice Consultation Paper Chapter 12, “Review of Sexual Offences”, October 2013, Para [12.1.3]
In her written outline of submissions Ms Connelly cites the judgment of Kirby J in KRM v The Queen[22]in support of the proposition that the course of conduct scheme creates a new criminal liability. This does not advance her case. The comments were directed towards a different statutory scheme (section 47A which involves proving multiple discrete incidents of offending), the case itself did not concern the question of retrospectivity, and none of the other justices made reference to the issue.
[22]KRM v The Queen (2001) 206 CLR 221 at [100]

In my view, the course of conduct scheme does not create extra liabilities but rather provides a new and different mechanism for the proof of a breach of an existing liability.
That all said, and as I have outlined above when dealing with the relevant principles[23], the fact that the statute does not impose substantive criminal liability as such is not an end to the matter. The presumption against retrospectivity may still be enlivened where it cannot be described as ‘merely procedural’. It might also arise in the context of the application of the presumption against the alteration of fundamental common law principles.
[23]See paras [16]-18] of this Ruling
The criminal law has operated upon the basis that an accused person is entitled to be given a high a degree of particularity concerning a criminal charge, including sexual offences,[24] and that charges must comply with the rule against duplicity (i.e. that no count in an indictment should charge the defendant with having committed two more separate offences)[25]. These rules are all recognised as being incidents of a fair trial. They are regarded by the criminal law as elementary.[26] As much was recognised by McHugh J in KRM v The Queen[27]:
An accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" [Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J]. These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge.[28]
[24]eg S v The Queen (1989) 168 CLR 266.
[25]As well the related notion of latent ambiguity (where the prosecution cannot identity the one transaction out of a number on which it relies)
[26]Walsh v Tattersall (1996) 188 CLR 77 at 11 per Kirby J
[27]KRM v The Queen (2001) 206 CLR 221
[28]KRM v The Queen (2001) 206 CLR 221 at [16] per McHugh J
However, McHugh J went on in KRM v The Queen[29] to recognise that the legislature may modify – even abolish – the need for particulars of criminal charges but said:
…..an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear. Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge.
[29]KRM v The Queen (2001) 206 CLR 221
In my view, the course of conduct scheme involves a significant departure from the fundamental common law requirement of particularity and involves a significant modification to the rule against duplicity. [30] If it is a procedural change by nature, is it not ‘merely’ procedural. Intrusion into such fundamental common law principles should be limited to the extent necessitated by the words of the statute. This is reason enough to insist upon the need for an explicit transitional provision in the legislation for it to apply retrospectively.
[30]See also Department of Justice Consultation Paper Chapter 12, “Review of Sexual Offences”, October 2013, Para [12.8]
But, as I have found above, there is such a retrospective provision in language which is ‘unmistakably clear’, in the form of section 445. That is an insurmountable answer to the defence application.

THE CHARTER RIGHTS

Section 27(1) of the Charter not engaged

The accused also says that section 27 of Charter of Human Rights and Responsibilities Act 2006 is engaged. Section 27(1) provides that ‘A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’.
In my view section 27(1) of the Charter is not engaged. As I have found above, the course of conduct scheme does not create a new criminal offence.[31] Counsel for the prosecution also pointed out that section 27(1) is directed towards “conduct” as forming the content of a criminal charge. I agree that this reinforces the proposition that an accused cannot successfully invoke section 27(2) by contending that a criminal offence has not been committed in circumstances where the prosecution may have failed to prove the offence because of a lack of particularity.

Section 27(2) of the Charter not engaged

[31]See paras [31]-[38] of this Ruling

The accused contends that section 27(2) of the Charter is engaged by virtue of the operation of section 5(2F) of the Sentencing Act 1991 which mandates that an accused person is sentenced on the totality of the incidents.
Section 27(2) provides that ‘A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed’.
In my view the decision in DPP v Leys & Leys[32] is a complete answer to this contention where the Court of Appeal observed[33]:
The penalty to which s 27(2) refers as “the penalty that applied to the offence” is the maximum penalty prescribed for the offence. A penalty imposed within that prescribed limit does not offend that requirement. As Lord Carswell said in Flynn v HM Advocate, in a passage he repeated in R (Uttley) v Home Secretary, referring to Art 7(1) of the European Convention on Human Rights, which is in much the same terms as s 27(2) of the Charter:
It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was “applicable” at the time of the criminal offence was committed is that which a sentencer could have imposed at that time, ie, the maximum sentence then prescribed by law for the particular offence … The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower.
[32]DPP v Leys & Leys (2012) 22 VR 1
[33]DPP v Leys & Leys (2012) 22 VR 1 at [130]-[132]
Importantly the penalty for a course of conduct offence is not greater than the penalty prescribed for a stand-alone charge comprising the relevant act. Sub-clause 4A(6) provides that a course of conduct charge is a charge for a single offence. The maximum penalty is the same.
In my view, Leys is not readily distinguishable from the present case.
In any event, it cannot be assumed that the actual penalty imposed today would be heavier than that which a sentencing court would probably have imposed at the time the offence was committed simply because of the addition of one further relevant sentencing factor (even a potentially significant one). That argument assumes - contrary to sentencing principle - that a single sentencing factor determines the sentencing outcome.[34]
[34]Pham v The Queen (2015) 325 ALR at [36]
I have concluded the human right expressed in section 27(2) of the Charter is not engaged.

Section 25 of the Charter not engaged

Section 25(2)(a) of the Charter affirms a right of a person charged with a criminal offence ‘to be informed properly and in detail of the nature of and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands’.
The accused in oral argument contends that the course of conduct scheme infringed this Charter right.
Section 25(2)(a) requires that the nature of the offence of which the accused must be informed (including particulars) is that with which he is charged. It gives rise to a right to know the basis of the prosecution case. It is a right to know what the prosecution case against him will be so that he can prepare to meet that case. In this sense he is entitled to know what the particulars are insofar as they are available. Where the evidence does not enable the prosecution to provide more particularity, then I cannot see how this section is engaged. An unavoidable vagueness about particulars such as dates would not be in breach of this section.[35]
[35]R v Cote [1977] 1 SCR 8 at 13, W v Attorney GeneralP v Wellington District Court 1 NZLR 1 at 10
It is true that the course of conduct scheme has modified the need to provide precise particulars of alleged sexual incidents - see section 4A(11). This is an explicit amendment to the requirement for particulars at common law. Nevertheless, the same provision provides that the particulars necessary to give reasonable information as to the nature of a course of conduct charge are still required but are determined having regard to the nature of the charge brought, namely that it is a course of conduct charge.
Under the course of conduct scheme, the prosecution must prove that the incidents encompassed by the charge taken together amount to a course of conduct having regard to their time, place or purpose of commission (and any other relevant matter) – see section 4A(2)(d) and 4A(9). It seems to me that the scheme contemplates that the particulars as to time, place and purpose (and any other relevant matter) relied upon by the prosecution to establish a course of conduct will be required to be provided. This will enable an accused person to the meet the case made against him.
That is what has occurred here. There is no suggestion that the prosecution is in a position in this case to ascertain and provide more detailed particulars.
In my view, section 25(2)(a) of the Charter is not engaged either generally by the course of conduct scheme or by the circumstances of this particular case.

ARGUMENT THAT RETROACTIVE APPLICATION LIMITED TO PLEA OF GUILTY

The defence contends that if the legislature did intend, through section 445, for the statue to apply retrospectively, the common law presumptions against retrospectivity and against the alteration of fundamental common law principles demand that I should limit the operation of retrospectivity only to that which is necessary to give effect to the transitional statutory provision. So much can be accepted.
Similarly the defence contends that if any of the Charter rights are engaged then I would be obliged to explore all possible interpretations of section 445, with a view to adopting the construction which amounts to the most limited intrusion into the Charter rights in question. Again, so much can be accepted.
If approached in that way, the defence submits that section 445 should be read down as being confined to the circumstances where an accused person enters a plea of guilty. In support of this ‘reading down’ argument the defence draws upon an analogy with the common law charging practice of rolled up charges – permissible on a plea indictment but not on a trial indictment.
For reasons which follow, I would reject the argument that the common law presumptions result in section 445 being read down.
Further, while I have found that none of the Charter rights are in fact engaged, even if I was wrong about that, and assuming that all the Charter rights relied upon are engaged, I would still reject this ‘reading down’ argument.
So far as the Charter is concerned, section 32(1) provides guidance as to the interpretation of statutory provisions dealing with human rights as follows:
So far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
As to the interpretive rule prescribed by section 32(1), French CJ said in Momcilovic v The Queen[36]:
But if the words of a statute are clear, so too is the task of the court in interpreting the statute with fidelity to the court’s constitutional function. The meaning given to the words must be a meaning which they can bear. As Lord Reid said in Jones v Director of Public Prosecutions: It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go.
[36]Momcilovic v The Queen (2011) 245 CLR 1
As explained by Kaye J in WBM v Commissioner of Police[37] in relation to registrable offenders under the Sex Offences Registration Act 2004 (which is an example of legislation retrospectively affecting the legal rights of persons):
..s 32(1) of the Charter does not command, or permit, an interpretation of a statutory provision, which overrides the intention of the enacting Parliament as expressed by the terms of the statute. That construction of s 32(1) was settled by the Court of Appeal in its recent decision in R v Momcilovic. In that case, the Court (consisting of Maxwell P, Ashley and Neave JJA), held that s 32(1) was not intended to create a “special” rule of statutory construction, but, rather, that it constituted a statutory directive obliging courts (and tribunals) to explore all “possible” interpretations of the provision in question, and to adopt that interpretation which least infringes Charter rights, to the extent that that is possible by reference to the existing framework of interpretive rules. Their Honours held that, in that way, s 32(1) “embraced and affirmed ... in emphatic terms” the ordinary presumption that the legislature does not intend to abrogate or curtail fundamental rights or freedoms, unless such an intention is clearly manifested by unambiguous language.
As I stated, the amending legislation, introduced in 2006, does, retrospectively, operate to impose on a person, in the position of the plaintiff, obligations, and does intrude on his ordinary right to personal privacy. However, in my view, the language of the definition of “existing controlled registrable offender” in s 3 of the Act (as amended by s 53 of the Justice Legislation (Further Amendment) Act 2006) is clear and unequivocal.[38]
[37]WBM v Commissioner of Police [2010] VSC 219, at [29]-[30]
[38]WBM v Commissioner of Police [2010] VSC 219, at [35]
While section 32(1) provides guidance[39], the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.[40] If the words of the provision are clear, then the court must give effect to their meaning.
[39]I note that at the oral hearing Mr Sonnet (when pressed) disavowed any reliance on s 7(2) of the Charter for any purpose
[40]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
I have concluded that the ‘reading down’ interpretation is just not viable, for a number of reasons.
First, such a construction is simply not borne out by the text of section 445. It is not reasonably possible to read the section down in this way. I am not required to strain or torture the language of section 445 to effect consistency with the Charter or in the application of the common law presumptions. If the Charter rights are infringed by the course of conduct scheme then my conclusion is that section 445 cannot be construed consistently with them. Adopting the language of Crennan and Kiefel JJ in Momcilovic v The Queen, the approach suggested by the accused “is simply to alter the words to achieve a different outcome. Such an approach is not warranted by the requirements of the process of construction.”[41] That is a complete answer to the defence argument.
[41]Momcilovic v The Queen (2011) 245 CLR 1 at [581]
Second, the purpose of the course of conduct scheme was to make proof at trial of sexual offences less onerous by modifying the requirement of particularity and displacing the rule against duplicity. The interpretation advanced by the defence would confine the retrospective application of the scheme to circumstances in which the requirement of proof and the rule against duplicity are just not engaged - because the accused is pleading guilty. At the same time the construction that section 445 applies only to pleas of guilty would preclude the application of the course of conduct scheme from operating in the very space it was plainly intended to occupy – to allow proof at trial of generalised and regular sexual offending, contrary to the requirement of particularity and the rule against duplicity. Again, this construction seems to fly in the face of the intent of the legislature.
Third, the defence construction would lead to a manifestly absurd result that a person who pleads guilty is amenable to a “course of conduct charge” but a person who contests the charge is not. No other criminal provision on the statute books operates in such a manner. I could not possibly infer that the legislature intended such a consequence.
Fourth, in my view, if section 445 were construed as confining retrospectivity to a plea of guilty, it would have no practical work to do:
·In our criminal justice system, charges are initiated upon the basis that the matter will proceed to trial. Without the course of conduct provisions, a pre-enactment course of conduct charge cannot be properly filed, and if it is, the proper course would be for such a charge to be permanently stayed as an abuse of process. In principle, an accused person should never even be presented with an opportunity to plead guilty to a pre-enactment course of conduct charge;
·If the prosecution is unable to properly particularise sexual offences, then without recourse to the courts of conduct scheme, the matter is not capable of prosecution in any form. Self-evidently there would, in those circumstances, be no incentive for a person to plead guilty to a pre-enactment course of conduct charge;
·The parties do not need to resort to the course of conduct scheme to facilitate a convenient between dates plea settlement in response to a properly filed indictment containing individual charges. There already exists an equivalent and well-entrenched pleading practice for this, namely the rolled up charging technique.
The analogy with the rolled up pleading procedure is inapt – that procedure is employed, as a matter of convenience and with the agreement of the accused, to settle charges in an indictment which (in theory) are properly brought and to which the accused is amenable.

The DPP v Keating argument

Counsel for the accused relied upon the decision of DPP v Keating[42] in support of her argument that I should read down section 445 or at least construe it in a limited way.
[42]DPP(Cth) v Keating (2013) 248 CLR 459
Insofar as it is relevant for present purposes, Keating concerned retrospective curative legislation which created in social security legislation a duty to inform the Department of a change of circumstances. It became law on 4 August 2011 but a transitional provision (s 66A) deemed it to apply to a change of circumstances on or after 20 March 2000. The case concerned a pending prosecution under the Commonwealth Criminal Code arising out of an alleged failure to inform the Department of a change of circumstances. The alleged omission occurred before the curative legislation became law, but during the period in which the legislation was deemed to have retrospectively operated. One of the questions the Court considered was whether s 66A created a duty to act during this retrospective period such that a failure to inform the Department of a change of circumstances amounted to engaging in conduct for the purposes of the relevant fraud offence under the Commonwealth Criminal Code. The Court concluded that criminal responsibility by omission under the Criminal Code was confined to the failure to do a thing that at the time of the failure the law requires the person to do.[43] Thus even though s66A operated with retrospective effect, it did not follow that the relevant provisions of the Criminal Codes were engaged.[44] Accordingly the Court held that s 66A could not apply to the charged conduct in Keating because at the time of that conduct it was not the law. The Court concluded ‘A clear statement of legislative intention is required before the courts will find that liability for a serious Commonwealth offence is imposed by means of a statutory fiction’ (emphasis added).[45]
[43]DPP(Cth) v Keating (2013) 248 CLR 459 at [49]
[44]DPP(Cth) v Keating (2013) 248 CLR 459 at [47]
[45]DPP(Cth) v Keating (2013) 248 CLR 459 at [47]

The course of conduct scheme, including section 445, is readily distinguishable from Keating. Keating involved a complex statutory relationship between a retrospective duty imposed in social security legislation and a prosecution of a serious offence under the separate Criminal Code. Keating also involved the bringing of prosecution for serious Commonwealth offences based upon ‘a legal fiction’. The relationship between section 445 and the course of conduct scheme is direct, explicit, clear and unambiguous and does not give rise to any legal or statutory fiction. In short, the decision of Keating turns upon its own statutory setting and says nothing about the statutory construction of 445 and the course of conduct scheme.

Explanatory memorandum argument

This leaves one argument which I have not yet dealt with. In the Explanatory Memorandum issued with the introduction of the Bill, the transitional provision was explained in clause 16 as follows:
Clause 16 inserts a new section 444 into the Criminal Procedure Act 2009, which provides that a person may be charged with an offence arising from a course of conduct charge irrespective of when the incidents of the offence are alleged to have taken place. This does not create a retrospective criminal liability, as the course of conduct charge is a matter of procedure not substantive criminal law. (Emphasis added)
Counsel for the accused made the following argument based upon the highlighted sentence:
·   This passage shows the legislature never intended the legislation would create retrospective criminal liability;
·   The course of conduct charge does create criminal liability;
·   Therefore, this legislation should be construed as to not apply retrospectively so as to conform with the legislature’s intent.
In my view, this argument falls down at two levels.
First, as I have found above, the assertion in the explanatory memorandum that the legislation does not create a retrospective criminal liability is correct (even though I have found it is not ‘merely procedural’).
Second, if the legislation does create criminal liability (contrary to the declaration in the explanatory memorandum) the defence argument conflates two very distinct issues – the legislature’s intent as to the retrospective operation of the legislation with its legal characterisation of the legislation. It is plain beyond any doubt from the legislation that the legislature intended the legislation to apply retroactively. Further the legislature has expressed that intent with full knowledge of the consequences, namely that an accused person is now exposed to being prosecuted with an offence to which he could not have been subjected at the time (by reason of the common law requirement of particularity and the rule against duplicity). At most, the highlighted passage in the explanatory memorandum shows that the legislature (in truth the parliamentary draftsman of the explanatory memorandum) mischaracterised the legal character of the legislative change. I do not see how this could ‘vitiate’ its unambiguously stated intent expressed through section 445 (and I should say supported by the explanatory memorandum as a whole). If there is a conflict between the explanatory memorandum and section 445, then as a matter of statutory construction the legislation must trump the explanatory memorandum. If a provision under consideration is clear on its face, extrinsic materials (such as an explanatory memorandum) may only be used to confirm the ordinary meaning. They cannot alter or substitute the interpretation that the court, without reference to those materials, would place upon the provision. [46]
[46]Section 35(b) of the Interpretation of Legislation Act 1984 (Vic). D Pearce and R Geddes, Statutory Interpretation in Australia, 7^th ed, LexisNexis Butterworths, Sydney 2011 [3.17] and the authorities contained therein including Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420.

INOPERABLE ARGUMENT

Alternatively, counsel for the accused also argued that I should not give section 445 any effect – that is, I should find it inoperable. Accepting that the presumption against retrospectivity is enlivened, and even assuming that it does impose retroactive criminal liability and that the relevant Charter rights are all engaged, I would reject that submission, for the same reasons I have given in relation to the reading down argument.
In addition, it is a primary rule of statutory construction that all words used in a statute are presumed to have meaning and effect.[47] In Project Blue Sky v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[48]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[49] In The Commonwealth v Baume[50] Griffith CJ cited R v Berchet[51] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[47]Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382.
[48]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[49]The Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ) at 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ).
[50]Commonwealth v Baume (1905) 2 CLR 405 at 414.
[51]R v Berchet (1688) 1 Show KB 106 [89 ER 480].
Section 445 can readily be given meaning. It is plain, simple and irresistible. I am obliged therefore to give it that meaning and effect.

CONCLUSION

Having regard to the above I find that the course of conduct scheme does apply retrospectively without limitation. Charge 1 is not defective. It is properly charged. I reject the accused’s application that Charge 1 be permanently stayed.

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[2016] VCC 1464

22 June 2016