R v Seigneur
[2009] SASC 59
•6 March 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v SEIGNEUR
[2009] SASC 59
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
6 March 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
Case stated to Full Court with respect to questions reserved pursuant to sections 350 and 351 of the Criminal Law Consolidation Act 1935 (SA) - accused charged on Information presented to the District Court with indecent assault - Information filed in the Magistrates Court on 24 June 2005 - accused committed to stand trial in District Court on 28 September 2006 - Information presented in the District Court on 24 October 2006 - Statutes Amendment (Evidence and Procedure) Act 2008 came into operation on 23 November 2008 - whether section 34M of the Evidence Act 1929 (SA) inserted into the Act by section 18 of the Statutes Amendment (Evidence and Procedure) Act 2008 applicable - whether section 34CB of the Evidence Act 1929, inserted by section 16 of the Statutes Amendment (Evidence and Procedure) Act 2008 applicable - whether complaint admissible by virtue of insertion of that provision - whether sections 34M and 34CB of Evidence Act 1929 (SA) applicable to proceedings - whether “proceeding” commenced on information being presented to the court of trial or commencement of trial - Judge held sections 34M and 34 CB of the Evidence Act applied only to trials on Informations presented in the court of trial after the day on which the Statutes Amendment (Evidence and Procedure) Act came into force - Judge held sections not applicable to trial of accused - Judge held complaint inadmissible at common law.
Held: ruling upheld - (by majority) - administrative proceeding in an inferior court not the same proceeding as a subsequent judicial proceeding brought in a superior court - proceedings commenced on the presentment of the information in the court of trial - sections 34M and 34 CB of the Evidence Act 1929 apply only to trials on informations presented in the court of trial after 23 November 2008.
Summary Procedure Act 1921 (SA) s 5(3)(a)(iii)(C), s 101, s 107 and s 108; Criminal Law Consolidation Act 1935 (SA) s 56, s 275, s 276(1), s 278, s 350 and s 351; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 13A(1), 13B, 13C, 13D and s 22; Evidence Act 1929 (SA) s 4, 34CB, s 34M, s 67G and s 67J; Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA); Acts Interpretation Act 1915 (SA) s 14D and s 16; Limitation of Actions Act 1936 (SA) s 38A; Federal Court Rules 1979 04, O10A.R7; Supreme Court Rules (NT) 082.03; Court Procedure Rules 2006 (ACT) r 75 and r 100; Uniform Civil Procedure Rules 1999 (Qld) r 135, referred to.
DPP v B (1998) 194 CLR 566; R v Martin (No. 2) (1997) 68 SASR 419; R v Mustafa (2005) 91 SASR 62; Longman v The Queen (1989) 168 CLR 79; R v BFB (2003) 87 SASR 278; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd (1987) 11 NSWLR 404; Bropho v Western Australia (1990) 171 CLR 1; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association [1946] 1 All ER 637; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Commonwealth v Baume (1905) 2 CLR 405; R v Berchet (1688) 1 Show KB 106; R (Daly) v Home Secretary [2001] 2 AC 532; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; K&S Lake City Freighters Pty Ltd v Gordon v Gotch Ltd (1985) 157 CLR 309; Wik Peoples v Queensland (1996) 187 CLR 1; K-Generation v Liquor Licensing Commission [2009] HCA 4; Hoare v R (1989) 167 CLR 348; Owen v South Australia (1996) 66 SASR 251; Nemer v Holloway (2003) 87 SASR 147; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Rodway v The Queen (1990) 169 CLR 515; Maxwell v Murphy (1957) 96 CLR 261; Blake v Norris (1990) 20 NSWLR 300; Kilby v The Queen (1979) 129 CLR 460; Cross v The Queen (1996) 186 CLR 427; R v Taylor (No. 2) [2008] VSCA 57; R v Hackett (1996) 185 LSJS 156; R v Butler [1939] SASR 265; Newell v The King (1936) 55 CLR 707; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228; Republic of Costa Rica v Erlanger (1876) 3 Ch D 62; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Grassby v R (1989) 168 CLR 1, considered.
R v SEIGNEUR
[2009] SASC 59Court of Criminal Appeal: Gray, Vanstone and Kourakis JJ
GRAY J.
Pursuant to section 350 of the Criminal Law Consolidation Act 1935 (SA), a District Court Judge reserved for the consideration of the Full Court the following questions of law:
Was I correct in ruling that sections 34 M and 34 CB of the Evidence Act 1929 applied only to trials on informations which were filed in the court of trial after the day on which the Statutes Amendment (Evidence and Procedure) Act 2008 came into operation?
If I was incorrect in so ruling, what are the proceedings to which sections 34 M and 34 CB of the Evidence Act 1929 apply?
On 23 January 2009 the members of the Court delivered judgment and answered the questions referred. Kourakis J and I answered the first question “yes” and the second question, “given my answer to the first question, it is unnecessary for me to answer”. Vanstone J answered the first question “no” and the second question as follows: “The sections apply to all trials commencing on or after 23 November 2008.”
The members of the Court indicated that they would publish reasons at a later date. I now publish my reasons for answering the questions referred in the manner indicated above.
Background
On 24 June 2005 an Information was laid in the Magistrates Court pursuant to section 101 of the Summary Procedure Act 1921 (SA)[1] charging the accused with indecent assault contrary to section 56 of the Criminal Law Consolidation Act. The Information alleged that the offence occurred between 1 December 2003 and 31 January 2004 and that the complainant was nine years of age at that time. As the complainant was less than 14 years of age, the alleged offence was classified as a major indictable offence.[2]
[1] Section 101 of the Summary Procedure Act 1929 (SA) provides:
(1)Where a person is suspected of having committed an indictable offence triable in this State, an information may be laid, in accordance with the rules, charging that person with that offence.
(2)If the information is laid orally, it must be reduced to writing.
(3)An information must be filed in the Court as soon as practicable after it is laid.
[2] Section 5(3)(a)(iii)(C) of the Summary Procedure Act 1921 (SA) provides that:
an offence against section 56 of the Criminal Law Consolidation Act 1935 (indecent assault) (not being an offence committed against a child under the age of 14 years)” is a major indictable offence.
On 28 September 2006 the accused was committed to the Northern District Court to stand trial on the charge pursuant to section 107 of the Summary Procedure Act.[3] In discharge of the duty imposed by section 276(1) of the Criminal Law Consolidation Act,[4] the Director of Public Prosecutions presented an Information to the District Court on 24 October 2006.
[3] Section 107 of the Summary Procedure Act 1921 (SA) provides:
3) If, after completing consideration of the evidence, the Court is of the opinion that the evidence is sufficient to put the defendant on trial for an offence—
a) the Court will review the charges, as laid in the information, in order to ensure that they properly correspond to the offences for which there is, in the opinion of the Court, sufficient evidence to put the defendant on trial and make any necessary amendment to the information; and
b)following the review of the charges—
i) if the defendant stands charged with a major indictable offence—the Court will commit the defendant to a superior Court for trial;
…
[4] Section 276(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
Subject to subsection (2), in every case in which any person has been lawfully committed for trial at any criminal sessions, it shall be the duty of the Director of Public Prosecutions to present, or cause to be presented, an information against that person.
On 15 December 2008, the accused’s trial commenced when he was arraigned on the Information before a District Court Judge.[5] On that day, before the jury was empanelled, the Judge was requested to hear and determine a question relating to the admissibility of evidence and an interrelated question of law affecting the conduct of the trial. The Judge heard submissions and made a ruling as to the retrospective effect of provisions of the Statutes Amendment (Evidence and Procedure) Act 2008 (SA). That statute introduced, inter alia, sections 34CB and 34M of the Evidence Act 1929 (SA).
[5] DPP v B (1998) 194 CLR 566.
The Judge ruled that sections 34M and 34CB of the Evidence Act applied only to trials on Informations which were presented in the court of trial after the day on which the Statutes Amendment (Evidence and Procedure) Act came into operation and that accordingly those sections had no application to the trial of the accused.
Following the submissions of counsel the Judge then indicated that he proposed to state a case to the Full Court:
I do propose to state the case. I regard the issues of very considerable importance to the administration of the law. The issues will affect a very large number of trials. It seems beyond doubt that the issues will fall for determination of the Court of Criminal Appeal at some stage and due to the significance of the issues and the number of trials that will be affected, it is my view that the issues should be determined by the Court of Criminal Appeal sooner, rather than later.
The Judge, pursuant to section 350 of the Criminal Law Consolidation Act,[6] reserved for the consideration of this Court the earlier referred to questions of law. Pursuant to section 351[7] the Judge stated a case with respect to the questions reserved.
[6] Section 350 of the Criminal Law Consolidation Act 1935 (SA) provides as follows:
350—Reservation of relevant questions
(1)In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a) antecedent to trial; or
(b) relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
[7] Section 351 of the Criminal Law Consolidation Act 1935 (SA) provides as follows:
351—
When a court reserves a question for consideration and determination of the Full Court, the presiding judge must state a case setting out—
(a) the question reserved; and
(b) the circumstances out of which the reservation arises; and
(c) any findings of fact necessary for the proper determination of the question reserved.
It is convenient to set out relevant extracts from the case stated:
Paul Marc Seigneur (the accused) is charged on information presented in the District Court by the authority of the Director of Public Prosecutions with one count of indecent assault. The particulars of the charge are that between the 1st day of December 2003 and the 31st day January 2004, at Corny Point, he indecently assaulted [the complainant], a person of the age of 9 years.
The complainant was born on 11th April 1994. The complainant made no complaint about the conduct of the accused until about December 2004 when she told her mother that he had indecently assaulted her. The accused was arrested in relation to this allegation on 19th May 2005.
An information was filed in the Magistrates Court on 24th June 2005. The accused was committed to the District Court to stand trial on 28th September 2006.
The information referred to in paragraph one above was filed in the District Court on 24th October 2006. The accused was arraigned in the District Court on this information on 6th November 2006 and pleaded not guilty. The trial was ultimately listed to commence before me on 15th December 2008.
The Statutes Amendment (Evidence and Procedure) Act 2008 came into operation on 23rd November 2008. The operation of some sections which are not relevant to this case stated were suspended.
The accused appeared before me for trial on 15th December 2008. No plea was taken on that day. Pursuant to section 285a Criminal Law Consolidation Act 1935, I was asked to hear and determine a question relating to the admissibility of evidence and an interrelated question of law affecting the conduct of the trial before I empanelled a jury.
In particular, I was asked by [counsel for the accused] to exclude the complaint referred to in paragraph 2 above on the ground that section 34M of the Evidence Act 1929 which was inserted into the Act by section 18 of the Statutes Amendment (Evidence and Procedure) Act 2008 had no application to the trial and thus did not operate so as to render the complaint admissible. I was also asked by [counsel for the accused] to determine, as a matter of law, that section 34 CB of the Evidence Act 1929 which was inserted into the Evidence Act 1929 by section 16 of the Statutes Amendment (Evidence and Procedure Act) 2008 as one of two new sections which were substituted for the repealed 34 CA had no application to the trial.
The resolution of each question involved the construction of the transitional provision enacted by section 22 of the Statutes Amendment (Evidence and Procedure) Act 2008 which provides as follows:
22 – Transitional provision
The amendments made by Part 4 of this Act to the Evidence Act 1929 apply to proceedings commenced after the commencement of that Part.
Arguments commenced on 15th December 2008. Seigneur was arraigned on 16th December. Insofar as was necessary, the application and the submissions which had been made on 15th December were adopted and the arguments continued.
On 16th December I ruled that the complaint was inadmissible at common law and that sections 34M and 34 CB of the Evidence Act 1929 applied only to trials on informations which were filed in the court of trial before the day on which the Statutes Amendment (Evidence and Procedure) Act 2008 came into operation and that accordingly those sections had no application to the trial of the accused.
The Statutory Amendments
Section 34M - Recent Complaint
Evidence of recent complaint has for many years been led and admitted in charges alleging sexual offending as an exception to the rule of evidence that prior consistent statements made by a witness out of court are inadmissible. The rationale underpinning this exclusionary rule has been derived in part from the distrust the law has of self-supporting statements and, in part, from the logical relevance and probative value of such statements.[8]
[8] R v Martin (No. 2) (1997) 68 SASR 419, 430 (Doyle CJ).
The approach of the common law to evidence of complaints was conveniently summarised by Besanko J in Mustafa[9] in the following terms:
[9] R v Mustafa (2005) 91 SASR 62 at [56]-[57].
In considering if a complaint in relation to a sexual offence is admissible, a judge is required to decide if it was a complaint as distinct from a narrative, if it was made at the first reasonable opportunity and if it was spontaneous. There is no issue here that the statement was a complaint as distinct from a narrative. If the complaint is admissible then it may be used by the fact-finder to support the complainant's credibility. In other words, it may be used to support the complainant's credibility in terms of what she has said in court. It is illustrative of consistency of conduct and there are two aspects to consistency, namely, consistency in terms of the fact of the complaint and consistency in terms of the contents of the complaint. Because the complaint may be used to show consistency of conduct if it is admitted, the pre-conditions of admissibility (that is, first reasonable opportunity and spontaneity) are assessed or judged in light of that consideration. Relevant matters in the case of the requirement of first reasonable opportunity include the complainant's age, the length of the delay, the extent to which the complainant was with the accused during the period of the delay, the nature of the relationship between them, the opportunity the complainant had to speak to other persons and her relationship with those persons. Relevant matters in the case of the requirement of spontaneity include the complainant's age, the extent of her education, her relationship with the person to whom she is speaking and the nature of the questions asked. The matters which I have identified are by no means exhaustive.
Section 34M is said to have abolished the common law relating to recent complaint in sexual cases. The section provides:
Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Section 34CB - Longman Direction
The introduction of section 34CB into the Evidence Act was directed to avert or limit the development through the common law of the need for warning to be given to the jury in cases of delay as propounded in Longman. [10]
[10] Longman v The Queen (1989) 168 CLR 79.
The position at common law with respect to possible miscarriages of justice arising from delay was succinctly summarised by Doyle CJ in BFB:[11]
In Longman v The Queen the High Court reminded trial judges that a warning must be given to a jury "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case": Longman (at 86) per Brennan, Dawson and Toohey JJ. In that case it was held that the circumstances called for a warning.
Since then a number of cases have come before the High Court in which the justices of the court have had occasion to consider, in the context of sexual offences, when it would be sufficient for a trial judge to merely comment on, or bring the attention of the jury to, an aspect of a case that calls for some caution, and when it will be necessary to warn the jury that it would be dangerous or unsafe to convict on the evidence of the victim alone, unless the jury, scrutinising the evidence with great care, and considering the relevant circumstances and the warning, were satisfied of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen and Doggett v The Queen.
These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge's authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
I add that there are other circumstances in such cases that may call for a warning. In the present case the concern is with delay, coupled with forensic disadvantage to the accused, and I confine my attention to that topic.
[Citations omitted]
[11] R v BFB (2003) 87 SASR 278 at [34]-[37].
The relevant terms of section 34CB of the Evidence Act are as follows:
Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The Transitional Provision
Both sections 34M and 34CB were introduced into the Evidence Act by the Statutes Amendment (Evidence and Procedure) Act. That statute contained a transitional provision, section 22:
The amendments made by Part 4 of this Act to the Evidence Act 1929 apply to proceedings commenced after the commencement of that Part.
The case stated raises for consideration the interpretation of the transitional provision and, in particular, the meaning of the phrase “proceedings commenced”. The relevant amendments, sections 34M and 34CB, came into operation on 23 November 2008. The question is whether the proceeding in the District Court commenced on or before the date on which the trial was to start.
Preliminary Matters
Relevant Principles of Statutory Interpretation
It is convenient to record relevant principles of statutory construction before embarking on the resolution of the meaning of section 22.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[12] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[12] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans,[13] Kirby J addressed the principle as follows:
... a purposive and not a literal approach[14] is the method of statutory construction that now prevails:[15]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[16] As Lord Diplock explained, in an extra-judicial comment,[17] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[18]
[13] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[14] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[15] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[16] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[17] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[18] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
All words in a statute must prima facie be given some meaning and effect. In Project Blue Sky v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[19]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[20] In The Commonwealth v Baume[21] Griffith CJ cited R v Berchet[22] 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”.
[19] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[20] 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).
[21] Commonwealth v Baume (1905) 2 CLR 405 at 414.
[22] R v Berchet (1688) 1 Show KB 106 [89 ER 480].
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[23]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[24] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[25]
The context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.[26]
[23] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[24] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[25] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
[26] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 (Gummow J).
The use of extrinsic materials were discussed by French CJ in K-Generation v Liquor Licensing Commission[27] as follows:
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[28] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[29]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes "the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy".[30]
I propose to make use of extrinsic material in the present proceeding in accordance with these principles.
[27] K-Generation v Liquor Licensing Commission [2009] HCA 4 at [51] - [53].
[28] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360–1.
[29] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
[30] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Extrinsic Material
Before turning to the statutory context in which section 22 of the Statutes Amendment (Evidence and Procedure) Act is to be construed it is instructive to consider Parliament’s intent in enacting the amendments to the Evidence Act. In the second reading speech the Attorney-General revealed:
The Bill reforms the way judges warn and direct juries in sexual offence proceedings, reforms criminal procedure to reduce the impact upon children of delay in giving evidence of sexual abuse, and substantially reforms the law of recent complaint and the effect of delay in sexual offence cases.
…
The Bill will also preserve the accused person’s right to a fair trial and ensure that these provisions work in a way that will not prejudice a jury against an accused person.[31]
The Attorney-General also noted the relationship of the Statutes Amendment (Evidence and Procedure) Act to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA):
Comments were sought from many groups and individuals about that bill (the Evidence (Miscellaneous) Amendment Bill, 2007, which was the predecessor to the SA(EP)A) and about its companion bill the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 introduced at the same time and allowed to lapse for the same reason. As a result, both bills are to be reintroduced in much the same form but with what we think are improvements.
The Statutes Amendment (Evidence and Procedure) Bill achieves two main kinds of evidentiary law reform. It reforms the laws governing the way evidence is taken in sexual offence proceedings. This is part of a suite of legislation reforms arising from government’s extensive review of South Australian rape and sexual assault laws in 2006 that also includes the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 to be reintroduced in this session concurrently.[32]
[31] South Australia, Parliamentary Debates, House of Assembly, 25 October, 2007, 1461-2 (Attorney-General).
[32] South Australia, Parliamentary Debates, House of Assembly, 25 October, 2007, 1450 (Attorney-General).
The Case Stated
The Director submitted that the sections 34M and 34BC were within the rubric of procedure. It was contended that the transitional provision of the amending legislation was intended to operate at trials commencing after the amendment took effect. It was then argued that the trial in the District Court commenced following the arraignment of the defendant before the jury.
The Director further submitted that the word “proceedings” should be interpreted to mean the taking of any step in an action. In support of this submission it was said that the amending provisions were procedural in nature and would in the ordinary course be given retrospective operation. Reference was made to the following remarks of the High Court in Rodway:[33]
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.
[33] Rodway v The Queen (1990) 169 CLR 515 at 518-521.
This exception to the rule against retrospective operation is justified, as where procedure alone is involved the statute automatically operates prospectively as it prescribes the manner in which something must be done in the future. Ultimately, the presumption against retrospectivity finds no application in such circumstances. If such a procedural statute applies in relation to past events, it operates retrospectively provided it does not affect existing rights or obligations. However, when statutes which are commonly classified as procedural - statutes of limitation, for example - operate in such a way as to affect existing rights or obligations, the presumption against retrospective operation applies.
Consequently, the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have retrospective operation. The Court in Rodway recognised this with their acceptance of Dixon CJ’s formulation of the rule in Maxwell v Murphy:[34]
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 Court in Rodway elaborated on this reasoning as follows:[35]
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: Potter v Minahan; Baker v Campbell; Sorby v The Commonwealth; Hamilton v Oades.
[Footnotes omitted]
[34] Rodway v The Queen (1990) 169 CLR 515 at 519, quoting Maxwell v Murphy (1957) 96 CLR 261 at 267.
[35] Rodway v The Queen (1990) 169 CLR 515 at 519, quoting Maxwell v Murphy (1957) 96 CLR 261.
Both parties on the hearing of the referred questions accepted that the amending sections 34M and 34CB were properly designated as being under the rubric of procedure. Having regard to the earlier referred to observations in Rodway this approach would appear to be correct. Neither party submitted that fundamental common law rights were being abrogated in a way that enlivened the presumption against such legislation being retrospective in its effect. In these circumstances, both parties acknowledged, there was no need for any transitional provision at all in the legislation if the legislature had intended that the provisions were to operate with full retrospective effect. It is in this context that the question arises as to the purpose of section 22 and its interpretation.
The Director pointed out that section 22 of the Statutes Amendment (Evidence and Procedure) Act amended the Evidence Act which contained the following definition of “proceeding”: [36]
legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration.
[36] Evidence Act 1929 (SA) section 4.
It was said that the definition being inclusive was broad enough to include the trial as being a proceeding. It was contended that as an inclusive definition, it should be given the widest meaning and should extend to include any action or step in an action whether in the civil or criminal jurisdiction. The word “proceeding” in the amended legislation should be given the same meaning.
Attention was also drawn to Part 4 of the Statutes Amendment (Evidence and Procedure) Act which inserted Division 10 into the Criminal Law Consolidation Act. There criminal proceedings were defined by section 67G(1) as follows:
criminal proceedings means proceedings against a person for an offence (whether summary or indictable), including the following:
(a) proceedings for the preliminary examination of an indictable offence;
(b) proceedings relating to bail;
(c) proceedings for the trial of an offence;
(d) proceedings relating to sentencing;
(e) proceedings on an appeal against conviction or sentence;
The Director argued that this broad definition was an indicator that Parliament intended “proceedings” to have a comparable meaning where utilised elsewhere. However, it is relevant to observe that in the present proceeding the court is to construe the phrase “proceedings commenced”. The context in which the word “proceeding” is used is, in my view, of particular relevance.
As a general proposition and, as noted by Smart J in Blake v Norris,[37] the word “proceeding” is capable of such a variety of meanings that the appropriate construction of the word is assisted by an examination of the statutory context and the objects of the legislation in question. In this case, the relevant statutory context is that of a statute to amend provisions relating to and regulating the admission of evidence in criminal proceedings.
[37] Blake v Norris (1990) 20 NSWLR 300.
Parliament recognised that both amendments were effecting what would be viewed as a significant change to the admissibility and treatment of evidence at trial. Insofar as it dealt with a warning consequent on delay, Parliament recognised, by section 34M, Parliament recognised that the provision abolished the common law relating to recent complaints in sexual cases and, in particular, the common law as enunciated by the High Court in Kilby.[38] In the case of section 34CB, that it was abolishing a rule of law or practice recognised and established by the High Court in Longman.[39]
[38] Kilby v The Queen (1979) 129 CLR 460. See also Cross v The Queen (1996) 186 CLR 427.
[39] Longman v The Queen (1989) 168 CLR 79.
Although in accordance with Rodway both amendments are to be treated as within the rubric of procedure, it is evident that they deal with procedure in a way that may have material consequences. As the amendments were said to protect the right of a defendant to a fair trial, it might be suggested that amendments seek to provide a better balance between complainant and defendant than was perceived to exist at common law.
These observations identify a very real purpose in Parliament through the transitional provision seeking to limit the otherwise full retrospective effect of the amendments. To this end, the recognition that the relevant proceeding commences with the presentment of the initiating process in the trial court allows an application and operation of the provisions that would avoid perceived unfairness to a defendant.
Once a proceeding has been initiated by the filing of an Information in a court of trial it is readily apparent that that Information may be amended, may be substituted by another Information, or may be the subject of a retrial order. I would understand each step to be properly viewed as being within the initiating proceeding or process. In this way there is certainty in the application of the amendments and an interpretation that would provide an appropriate protection to a defendant against a possible miscarriage of justice. To allow such amendments to operate in the course of an ongoing trial could produce harsh and unjust consequences. A trial conducted on a particular basis may well change. Decisions made in the light of a particular approach could be rendered nugatory. Difficult issues could arise on the appeal process. All these considerations and the matters that follow have led me to the conclusion that the commencement of proceedings referred to in section 22, means and was intended to mean, the presentment of the information in the trial court.
A key issue in determining the answer to the questions reserved is the construction of the words “proceedings commenced” as used in section 22. The word used is “proceeding” and not “trial”.[40] In my view these words have no different meaning from the term “commencement of proceedings”. The word “proceedings” in section 22 is qualified by the word “commenced”. This qualification tends against a construction that the word “proceedings” is referable to any step in the action. “Commencement” refers to the initiation of the proceedings and not any step in the proceeding. To assert that commencement of proceedings means a step in the proceedings creates a tension when none is necessary or required to give effect to the ordinary meaning of the term “commenced”.
[40] c.f. Criminal Law Consolidation Act 1935, Legislative History, Transitional etc provisions associated with Act or amendments.
The interpretation and meaning of “proceedings” in isolation would lead to confusion. If “proceedings” meant any step in the process then a “commencement” of any step would fall within the purview of section 22. The result would lead to multiple choices of application capable of producing inconsistent and anomalous results.
The Director submitted that the policy evinced by the transitional provision was to determine a time from which all the provisions contained within Part 4 of the amending Act would apply and that this point in time was the commencement of any step in an action post 23 November 2008. In an effort to further identify purpose and meaning for the transitional provision the Director submitted the evident purpose was to remove any doubt that the legislation was to operate retrospectively to the point where it would be applicable in a part heard trial. It was acknowledged that this would be the position at common law as confirmed in Rodway. In my view this submission should be rejected. There is nothing in the wording of the transitional provision, the extrinsic material, or the context that supports this contention.
Authority supports the reasoning of the District Court Judge that a transitional provision such as section 22 should be construed as referring to the date upon which an Information is presented or filed in the District Court rather than the Magistrates Court.
In Taylor (No 2),[41] the Victorian Court of Appeal considered an appeal from a trial which was conducted upon the assumption that section 61 of the Crimes Act 1958 (Vic) applied in the form in which it was before the commencement of amendments made by the Crimes (Sexual Offences) (Further Amendment) Act 2006. This amending legislation introduced a number of amendments bearing upon the conduct of trials in respect of sexual offences and warnings to be given to a Jury. The legislation had its own transitional provision, which read:
The amendments made to this act by section 3 of [the amending Act] apply to any proceeding that commences on or after the commencement of that section, irrespective of when the offence to which the proceeding relates is alleged to have been committed.
[41] R v Taylor (No 2) [2008] VSCA 57.
Ashley JA noted that the questions which arose were “what is the ’proceeding’ to which section 607 refers; and when does that proceeding commence?” Although the amendments bore upon the conduct of trials for sexual offences, no member of the court construed “proceedings that commence on or after” as referable to trials commencing on or after the date of operation of the amending Act. It was held that, for a trial to be had the court must be seised of the matter and it is so seised, most commonly, when presentment is made in that court.[42] As Ashley JA observed:
If a trial conducted and verdict returned on a defective presentment is a nullity, the likely rationale must be that there was no proceeding before the court in which the trial was had. The logical corollary, if a presentment be regularly filed, is that a proceeding is thereby commenced in the court in which it is filed.[43]
[42] R v Taylor (No 2) [2008] VSCA 57 at 20 (Ashley JA).
[43] R v Taylor (No 2) [2008] VSCA 57 at [23].
Counsel for the defendant in the present proceeding submitted that traditionally the commencement of a prosecution has been accepted as the commencement of criminal proceedings. I have had the advantage of reading the reasons of Kourakis J with respect to the decision of this Court in Hackett.[44] I agree with the analysis of that decision. In my view the observations of Lander J do not assist the construction of the terms of the transitional provision in this case. I agree with the reasons of Kourakis J for distinguishing the observations of Lander J in Hackett. I agree that the decision in Butler[45] relied on in Hackett addressed the concept of “a prosecution” in a different context.
[44] R v Hackett (1996) 185 LSJS 156 at 165-166.
[45] R v Butler [1939] SASR 265.
The administration proceedings in an inferior court, as Kourakis J observes, is not the same proceeding as a subsequent judicial proceeding brought in a superior court. The submission of the defendant should be rejected. The proceedings commenced on the presentment of the information in the court of trial.
Conclusion
These are the reasons for my answers to the questions reserved.
VANSTONE J: A judge of the District Court has reserved for the consideration of the Full Court two questions of law. No evidence has been received at the trial giving rise to the reference. The questions reserved relate to the evidence which can properly be admitted at trial, and the remarks a trial judge can make in summing up to a jury. The answers to the questions will be of some importance to trials other than that of the accused, and for this reason the judge has seen fit to follow this procedure.
Background
On 2 June 2005, an information was filed in the Magistrates Court charging the accused with two offences of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). On 8 June 2006, a magistrate dismissed the second count, no evidence in support of it being tendered. On 28 September 2006, the accused was committed to stand trial on the first count.
The information was filed in the District Court on 24 October 2006. The accused was first arraigned on that information on 6 November 2006. A trial before the District Court was abandoned pending the prosecution providing certain material to the defence. The trial was rescheduled for 15 December 2008. On that day the judge heard, in part, counsel’s submissions on the issues now before this court. On 17 December the accused was arraigned and pleaded not guilty. Argument as to the matter continued. The accused is on bail pending resumption of the trial.
After the date on which the accused was first arraigned in the District Court, but prior to the commencement of the trial before the judge, legislation amending parts of the Evidence Act 1929 (SA) relevant to the accused’s trial came into operation. That was on 23 November 2008.
The relevant amending legislation is contained in the Statutes Amendment (Evidence and Procedure) Act 2008 (SA) (the amending Act). The amending Act introduced into the Evidence Act s 34CB and s 34M (the relevant provisions). Section 34CB alters the law in relation to the requirement for, and the content of, what is referred to as a “Longman” warning which is to be given by a trial judge to a jury in cases in which there has been a substantial delay between the alleged offence and the accused’s trial. Section 34M alters the law as it relates to the admissibility of evidence of complaint of a victim in a sexual case. In particular, it allows evidence to be led of a complaint of such a victim notwithstanding that the complaint was not recent.
The amending Act contains the following transitional provision:
22—Transitional provision
The amendments made by Part 4 of this Act to the Evidence Act 1929 apply to proceedings commenced after the commencement of that Part.
The sections which insert the relevant provisions are in Part 4 of the amending Act. Accordingly, s 22 governs the commencement of the relevant provisions.
Both of the relevant provisions are likely to be of significance in the trial of the accused.
After hearing argument from the counsel then appearing, the judge ruled that the relevant provisions apply to trials on informations filed in the court of trial after 23 November 2008. His Honour proceeded to state a case for the consideration of the Full Court. The questions reserved are in the following terms:
(1)Was I correct in ruling that sections 34M and 34CB of the Evidence Act 1929 applied only to trials on informations which were filed in the court of trial after the day on which the Statutes Amendment (Evidence and Procedure) Act 2008 came into operation?
(2)If I was incorrect in so ruling, what are the proceedings to which sections 34M and 34CB of the Evidence Act 1929 apply?
The arguments
Mr Hinton QC, Solicitor-General, counsel for the Director of Public Prosecutions, contended that the first question reserved should be answered in the negative. It was put that the relevant sections should apply to a trial commencing after 23 November 2008.
The amending Act was passed at the same time as the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA). The Solicitor-General submitted that the two Acts addressed different aspects of the same policy. He pointed to matters of history in support of that submission and to the second reading speech which dealt with both Acts. Each contained amendments relevant to matters of evidence and procedure. It was submitted that it would be incongruent if parts of what was described as a comprehensive approach to the subject matter were to come into operation immediately and other related parts were to take effect at a subsequent time.
The Solicitor-General then took the court to the other provisions enacted by the amending Act. It was put that, where provisions are to apply both to trials and other hearings, the legislature deliberately referred to all such hearings as “proceedings”. On the other hand, “trial” rather than “proceeding” was used if a provision applied only at trial. On this basis, the Solicitor-General submitted that the word “proceedings” in s 22 of the amending Act was deliberately chosen by the legislature to refer, collectively, to any step in an action.
The Solicitor-General gave examples of apparent anomalies in the application of the relevant provisions which would arise as a result of the judge’s ruling. These were said to illustrate that, on the judge’s construction, procedural contingencies would determine whether the amending Act applied in a given case. This would undermine the point of having a transitional provision, being to provide certainty and consistency.
Counsel for the accused, Ms Fuller, agreed that the first question reserved should be answered in the negative. However, it was her submission that for the relevant provisions to apply, the information commencing the prosecution must be filed in the Magistrates Court (rather than the court of trial) after 23 November 2008. In the alternative, she submitted that the first question reserved should be answered in the affirmative.
Ms Fuller submitted that in construing the transitional provision, the court should have regard to the expression “proceedings commenced” rather than to “proceedings” in isolation. It was her submission that “commencement of proceedings”, a phrase bearing the same meaning as “proceedings commenced”, logically connotes the initiation of a legal process and not merely the beginning of any step in that process. Ms Fuller cited examples of other transitional provisions which used phrases which were said to avoid this connotation. Reference was made to authorities said to support the proposition that criminal proceedings were commenced upon the filing of an information in the Magistrates Court. Further, Ms Fuller referred to transitional provisions in other legislation which use the word “trial”. On this basis she submitted that Parliament would have used other words had it intended that the transitional provision bear the meaning contended for by the Director of Public Prosecutions.
Attention was drawn to the decision in R v Taylor (No 2) [2008] VSCA 57. That case involved the question of whether an amendment to the Crimes Act 1958 (Vic) applied to the trial of an accused. The amendment there under consideration was governed by a transitional provision similar to s 22. Its terms were as follows:
The amendments made to this Act by section 3 of [the amending Act] apply to any proceeding that commences on or after the commencement of that section, irrespective of when the offence to which the proceeding relates is alleged to have been committed.
The Court of Appeal concluded that for the purposes of that transitional provision, a proceeding is “commenced” when the presentment is filed in the court of trial. That would support Ms Fuller’s alternative argument. However, Ms Fuller referred to the reasons of Ashley JA at [37] in support of the analysis she proposed. There, his Honour considered arguments which would tend to support a conclusion that the date on which a charge of a major indictable offence is filed in the Magistrates Court is the date a proceeding is “commenced” for the purposes of the relevant transitional provision. In particular, his Honour considered that this interpretation tended to provide certainty, and a date at an early stage in the life of the criminal prosecution.
Analysis
It seems clear that, were it not for the transitional provision, the amendments, being procedural rather than substantive, would take immediate effect: see, in particular, Rodway v The Queen (1990) 169 CLR 515. Upon that analysis the relevant provisions would apply to any trial (including any re-trial) commencing on or after the date of operation. Whether it would apply to a trial which, as at the date of operation, was part-heard is not immediately apparent and I shall return to that point.
It is against that background that the transitional provision must be interpreted.
Nothing in the terms of the transitional provision itself indicates how the word “proceedings” is to be interpreted.
The meaning of the word “proceeding” was discussed by Smart J in Blake v Norris (1990) 20 NSWLR 300. His Honour concluded (at 306) that dictionary definitions of the word only highlighted its protean nature and that assistance as to its meaning must be sought in the relevant statutory context and the objects of the legislation in which it appeared. That must be so.
It is not without significance that although the amending Act does not define “proceedings” or “proceeding”, the Evidence Act itself does. Section 4 of the Evidence Act provides:
legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration;
It is noteworthy that the definition is an inclusive one and that one definition is “trial”, which can be seen as a step in a proceeding or action.
In addition, Part 4 of the amending Act inserts into the Evidence Act Division 10, which contains a definition of “criminal proceedings” in s 67G(1). It provides:
criminal proceedings means proceedings against a person for an offence (whether summary or indictable), including the following:
(a) proceedings for the preliminary examination of an indictable offence;
(b) proceedings relating to bail;
(c) proceedings for the trial of an offence;
(d) proceedings relating to sentencing;
(e) proceedings on an appeal against conviction or sentence;
Here, the discrete parts, or procedural steps, arising in the course of a prosecution are each defined as “proceedings”. It would not be expected that Parliament would intend the words “proceeding” or “proceedings” to bear wholly different meanings in different parts of one Act.
I turn to consider other provisions of the amending Act.
Part 4 contains provisions including s 34CB and s 34M, which apply, in their terms, only to trials. However, Part 4 also contains sections which can apply at other stages of proceedings; for example, at a preliminary examination: s 13A(1) and s 13C. Then, s 13B specifically applies to a “criminal trial” and to “civil proceedings”. Section 13D appears to apply where a criminal court is undertaking a re-trial, as well as to new proceedings. The wide target of these and other sections within Part 4 explains the use by the drafter of the collective noun “proceedings” in the transitional provision. The implication, to my mind, is that the new provisions can take effect where a court (which may be a civil or criminal court) embarks on any new step in relevant proceedings after commencement of the new legislation.
As the Solicitor-General pointed out, the amending Act and the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act were described by the Attorney-General in his second reading speech as being part of a “suite of legislation reforms” arising from an extensive review of the rape and sexual assault laws: South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1450 (Michael Atkinson, Attorney-General). Section 16 of the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act amends s 278 CLCA which deals with joinder of charges. It restricts the circumstances in which a trial judge can order separate trials of charges contained within one information. There being no relevant transitional provision within the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act and that amendment being of a procedural nature, it is apparent that it will apply immediately, irrespective of the date of the alleged offence, or of the information.
In my view there are several viable interpretations of the transitional provision. The first is that the words “proceedings commenced” refer to the date of initiation of the cause, suit, or prosecution. In the case of civil proceedings that would generally be the date when the summons, or the original application was filed. There would seem to be no difficulty about such an interpretation. In the case of criminal proceedings, it could be interpreted as the date when the complaint or information was first filed in the Magistrates Court; or, where the matter was an indictable one to be dealt with in the superior courts, it could refer, again to that date, or to the date when the Director of Public Prosecutions filed an information in the court of trial. A refinement of that last possibility might date the commencement of proceedings, not from the filing of the information, but from the date on which the accused first appeared before the court for arraignment. The further alternative, as proposed by the Solicitor-General, is an interpretation which applies the new provisions to any trial which commences on or after the date of operation.
As was pointed out by the Solicitor-General in argument, anomalies will occur regardless of which interpretation is taken. Whether they are significant anomalies is another matter. For example, if two persons who are ultimately tried together are charged on different dates in the Magistrates Court, or presented to the superior court at different times, the first date being prior to the operation of the amendments and the second being subsequent to it, then the rules of evidence applicable to each defendant would be different, if the date of charging, or filing the information is seen to be determinative. That might mean that a joint trial could not occur. Again, if the date of the filing of the original process in either the Magistrates Court or superior court is to be the touchstone, then for a period of, perhaps, several years, cases will be heard in adjacent courtrooms, in which the rules of evidence will differ. Trial judges will need to be alive to the fact that they may or may not be operating under superseded rules of evidence. I consider this to be as unnecessary as it is undesirable. On the other hand, if the date of commencement of the trial is taken to be the critical date, and there is, for some reason, a mistrial, or perhaps a successful appeal against conviction, the rules of evidence may be different by the time the new trial is heard. Inasmuch as no accused person has any vested interest in the rules of evidence or procedure, I do not think that the latter outcome is of concern.
If more than one interpretation is fairly open, then the particular one which advances the purpose and object of the Parliament must be preferred: s 22(1) Acts Interpretation Act 1915 (SA). That is the one which both sees the implementation of the new provisions at an earlier, rather than a later time, and one which promotes consistency and uniformity, without attendant unfairness, from the earliest possible time. I consider that it is open to this court, accepting the Solicitor-General’s argument, to find that the transitional provision uses the word “proceedings” to include any step in an action already commenced, that itself has not been commenced. That is my conclusion.
This is not to say that the transitional provision, s 22, is to be ignored. I consider that the work it has to do – and valuable work too – is to provide that where a trial is already on foot as at the date of the operation of the amendments, then the rules of evidence governing that trial should remain as they were at its commencement. It would appear that in the absence of s 22 the common law would dictate that the amendment would take effect during an ongoing trial. In Newell v The King (1936) 55 CLR 707 the High Court was concerned with the commencement of an amendment allowing for majority verdicts. The question was whether it had taken effect during the prisoner’s trial, as assumed by the trial judge. Allowing the appeal, the court unanimously held that the amendment did not affect part-heard trials. The amendment was seen to remove a substantive right to a unanimous verdict, which the prisoner had enjoyed at the outset of his trial. The clear implication, at least from the reasons of Latham CJ and Evatt J, is that, were the amendment a procedural one, it would have taken effect immediately. The view of the learned authors Pearce and Geddes in their work, Statutory Interpretation in Australia (6th ed, LexisNexis, 2006) appears to be, at 10.21 and 10.26, to the same effect. Reference is made to R v Murray (1886) 7 LR (NSW) (L) 361. There it was held that an amendment affecting the way in which a witness’s evidence was taken would apply to the remainder of a trial which had already commenced. Therefore, I am of the view that where a step in an action was commenced prior to 23 November 2008, the transitional provision has the effect that the law as it was at the commencement of that step applies for the duration of that step.
I note that, applying s 14D Acts Interpretation Act, the amending Act will be taken to have come into operation as from midnight of 22 November 2008.
These are my reasons for answering the questions reserved by the trial judge in the following manner.
1. No.
2.The sections apply to all trials commencing on or after 23 November 2008.
KOURAKIS J
Introduction
This is a case stated pursuant to s 350 of the Criminal Law Consolidation Act 1935 (the CLCA). The issues in this matter arise from amendments made to the Evidence Act 1929 (the Evidence Act) by Part 4 of the Statutes Amendment (Evidence and Procedure) Act 2008 (the Act). Those amendments include the insertion of two new sections into the Evidence Act, ss 34CB and 34M. The latter section facilitated the admission of evidence of complaints made by the alleged victims of sexual offences. The former modified the common law position on warning juries about the danger of acting on the evidence of complaints in sexual cases. The stated case concerns the construction of the transitional provision applicable to those sections.
Pursuant to s 22 of the Act, the amendments made by Part 4 apply to “proceedings commenced after the commencement of this Part”. The Act, apart from three sections inserted by Part 4 that are not relevant to this matter, came into operation on 23 November 2008. The operation of the three remaining sections was suspended until a date to be fixed by proclamation.
This Court has been asked to determine the meaning of “proceedings commenced after the commencement of this Part” for the purposes of s 22 of the Act. The questions of law reserved by the Judge to this Court for consideration are as follows:
1. Was I correct in ruling that sections 34M and 34CB of the Evidence Act 1929 applied only to trials on informations which were filed in the court of trial after the day on which the Statutes Amendment (Evidence and Procedure) Act 2008 came into operation?
2. If I was incorrect in so ruling, what are the proceedings to which sections 34M and 34CB of the Evidence Act 1929 apply?
Background
Mr Seigneur (the accused) is charged with indecent assault, occurring between 1 December 2003 and 31 January 2004 at Corny Point. The complainant was aged 9 years at the time of the alleged assaults. She made the complaint alleging indecent assault by the accused to her mother in December 2004. The accused was arrested on 19 May 2005.
The accused was charged on an information lodged by the Director of Public Prosecutions (the Director) in the Magistrates Court on 24 June 2005. On 28 September 2006 the accused was committed to the District Court to stand trial. The Director filed an information with respect to the charge in the District Court on 24 October 2006. On that information, the accused was arraigned in the District Court on 6 November 2006 and pled not guilty. His trial was listed to commence before Judge Brebner on 15 December 2008.
On 15 December 2008 counsel for the accused requested that the Judge exclude the complaint referred to above on the ground that s 34M of the Evidence Act, which was inserted by s 18 of the Act, had no application to the trial and thus did not operate so as to render the complaint admissible. Counsel for the accused also asked the Judge to determine that s 34CB of the Evidence Act, which was inserted by s 16 of the Act, had no application to the trial. Counsel submitted that those sections of the Evidence Act had no application to the case because the “proceedings” in this matter commenced with the filing of the first information in the Magistrates Court, which occurred in June 2005, well before the Act came into force on 23 November 2008.
On 16 December 2008, the Judge ruled that the complaint was inadmissible at common law and that ss 34M and 34CB of the Evidence Act applied only to trials on informations which were filed in the court of trial after the day on which the Act came into operation, and that accordingly those sections had no application to the trial of the accused. The Judge then reserved the two questions of law referred to above to this Court pursuant to s 350 of the CLCA.
Submissions
Both the Director and the accused tacitly accept that even though s 22 of the Act is, in form, a direction to apply Part 4 of the Act to proceedings commenced after that Part came into operation, it contains a negative implication denying Part 4 any application to proceedings commenced before that time. The un-stated premise is, I think, plainly right. I will return later to the significance of the way in which s 22 of the Act is drawn.
The Director contends that “proceedings” in s 22 of the Act refers to “any step in the proceedings”, meaning any step that carries an action forward toward a verdict or judgment. As such, the Director contends that the trial is a “proceeding”, and that the amendments made by Part 4 of the Act apply to any trials commenced after 23 November 2008. In support of that position, the Director relies upon the definition of “criminal proceedings” found in s 67G of the Evidence Act, which was also inserted by the Act. The Director also submits that the amendments made by Part 4 of the Act must have been intended to come into force at the same time as certain amendments made by the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (the CLC (RSO) AA). Finally, the Director urges that, for policy reasons, s 22 of the Act should be given the construction for which he contends so as to avoid certain anomalies that would arise from the construction preferred by the Judge.
Counsel for the accused submits primarily that the amendments made by Part 4 of the Act should only apply to trials on informations that were filed in the Magistrates Court after 23 November 2008. Alternatively, the accused contends that the Judge’s ruling that the amendments should apply to trials on informations filed in the court of trial after 23 November 2008 should be upheld.
For the reasons that follow, I would find against the submissions of the Director. I would also find against the primary submission of the accused. In my view the Judge correctly ruled that the amendments made by Part 4 of the Act apply to trials on informations filed in the court of trial after 23 November 2008.
Meaning of “proceedings commenced”
It is clear that the word “proceedings” is protean. It may mean an action or a step in an action. It is often used to mean an action only. It is also commonly used to refer to both concepts. However it is, I think, unusual for it to be used to mean only a step in proceedings unless it is used in a phrase like “no further proceedings shall be taken in the action”. Its meaning will depend on the context in which it is used. In this case, there is very little by way of statutory context. Section 22 of the Act is a transitional clause in an amending Act. There was no reference made to it in the second reading speech of the Bill. While the Evidence Act contains a definition of “proceedings”, the Judge and both parties agreed in the course of argument below that that definition did not control the meaning of “proceedings” in s 22 of the Act, because s 22 itself was not inserted into the Evidence Act. They were correct to do so. That conclusion does not mean that the definition in the Evidence Act must be ignored, but its weight as an interpretative tool is slight.
Nonetheless there are some textual indications of a negative nature in s 22 of the Act that “proceedings” means the action itself and not any step in it.
The first indication is Parliament’s choice of the word “proceedings” instead of the word “trial” or “hearing”. The primary meaning of “proceedings” is the institution of an action. Moreover, given the subject matter of Part 4 of the Act, the only steps that the word “proceedings” could refer to are committal hearings and trials. If Parliament had intended to apply the amended provisions of the Evidence Act to all committal hearings and trials that were commenced after the commencement of Part 4, then it is difficult to see why it did not simply say so. Indeed, it would be quite surprising if Parliament had so intended, but had nonetheless chosen to use the word “proceedings”, in its secondary sense of any step in a proceeding, when the concept of a step in a proceeding is rarely used in the common law or statutory rules governing the conduct of a criminal trial. On the other hand, the meaning of the word “trial” in the context of proceedings commenced by the presentation of an information pursuant to s 276 of the CLCA is well understood.[46] Its meaning in a civil context is equally clear. Committal hearings are defined by Part 5 of the Summary Procedure Act 1921.
[46] Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450.
The second indication is the use of the word “commenced”. It is more natural to speak of the commencement of proceedings when what is meant is the invocation of the court’s jurisdiction by instituting an action. Where the word “proceedings” is used in the sense of a step in a proceeding it is usually used as a collective noun referring to all of the steps that have been or may be taken in an action. Where it is used to refer to an interlocutory step it is more natural to speak of “taking” such a proceeding than “commencing” it.[47]
[47] Supreme Court Rules (NT) r 82.03; Uniform Civil Procedure Rules 1999 (Qld) r 135; Court Procedures Rules 2006 (ACT) r 75, 100; Federal Court Rules O10A.R7 and O4.
Thirdly, it can be observed that in order to avoid giving s 22 of the Act a meaning that is internally inconsistent, the meaning of the word “proceedings” pressed by the Director must be the only meaning it bears. The Director’s contention cannot be that the word “proceedings” in s 22 of the Act means both the action itself and a step taken in it. As will be seen shortly, that is a result of the negative implication in s 22 of the Act that Part 4 does not apply to proceedings commenced before 23 November 2008, to which I referred in [85] above. If the word carried both its primary and secondary meanings, then s 22 of the Act would declare both that Part 4 did not apply to proceedings instituted by informations presented before it came into operation, but did apply to procedural steps, the trials taken in those same actions, after the commencement date.
The point I seek to make can perhaps be made clearer in this way. If the word “proceedings” retains both of its possible meanings, s 22 of the Act would give both of the following directions:
1Part 4 of the Act applies to informations presented or laid after, but not before, it comes into operation;
2Part 4 of the Act applies to trials held after its commencement, even if the information charging the offence tried was filed before the commencement date.
It can immediately be seen, from the words italicised in each direction, that if the word “proceedings” was intended to have both meanings, it would command that Part 4 both did and did not apply to a trial, held after it came into operation, if the offence tried was charged on an information presented before Part 4 came into operation. This result arises because Part 4 can only apply to ‘proceedings’ commenced after 23 November 2008, and cannot apply to proceedings commenced before that date. If “proceedings” is taken to mean both the action itself and any step in that action, Part 4 would apply to steps taken after 23 November 2008, in actions that were instituted before that date and to which, by reference to the first direction above, Part 4 could not possibly apply. Therefore, on that construction, s 22 of the Act could not be given any sensible meaning with respect to a trial, heard after the commencement date, of a charge made in an information presented in the trial court before the commencement date.
It strikes me as unusual to use the word “proceedings” solely in its secondary sense of a step in an action and not in its primary sense of the action itself. If Parliament had meant to apply Part 4 to all hearings held after it came into operation, then it is unlikely to have used the word “proceedings”, which, in its primary meaning, would cause s 22 of the Act to have the very opposite result, namely that Part 4 did not apply to the trial of a charge on which the accused was indicted before 23 November 2009. For the reasons that I have explained, Part 4 of the Act could not apply to the trial of such a charge because of the negative implication in s 22 of the Act to which I have referred.
Conversely, if “proceedings” is used in its primary sense to mean the institution of an action, s 22 of the Act remains internally consistent even if the word “proceedings” includes the secondary meaning of a step in an action. That is so because if the action is instituted after the commencement of Part 4 every interlocutory step will, necessarily, also be taken after its commencement.
The textual indications to which I have referred strongly suggest that the word “proceedings” in s 22 of the Act does not mean only an interlocutory step taken in an action. Of course, the meaning given to the word “proceedings” will be much affected by the statutory purpose of the provision in which it appears. The purpose of a legislative provision will often be revealed by an understanding of the legal situation that pre-existed its enactment. The pre-existing legal situation is often referred to as ‘the mischief’ to which the statute is directed. Even though views may well differ about whether the state of the pre-existing law deserves that characterisation, it is a useful first step to consider the application that Part 4 would have had if s 22 of the Act had not been enacted.
The common law rule, which operates in the absence of an express or implied statutory provision to the contrary, is that amendments to statutes which are purely procedural are to be given retrospective effect, and amendments to legislation that affect substantive rights are to be given prospective effect.[48]
[48] Maxwell v Murphy (1957) 96 CLR 261; Newellv The King (1936) 55 CLR 707.
However, s 16 of the Acts Interpretation Act 1915 provides that:
16(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not –
(d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
“Persons” have an obligation not to commit crime and, therefore, it would appear that an amendment or repeal of an Act would not affect the legal proceedings relating to that obligation. On that reasoning, the amendments made by Part 4 of the Act would have a prospective effect. However, a majority of the High Court in Yrttiaho v The Public Curator of Queensland[49] held that a corresponding sub-section to that of subs 16 (e) of the Acts Interpretation Act 1915 (SA) should not be construed so as to abrogate the common law presumption that a purely procedural statute would be given retrospective effect. Gibbs J, with whom Menzies, Windeyer and Walsh JJ agreed on this point, said:
The real question, therefore, is whether the provisions of s. 20 (1) (e) and the following words of the subsection apply in the present case so as to preserve in force the procedure which was changed by the amendment of O. 90, r 9. If they do have this effect, they completely reverse the rule of the common law that an amending statute which is purely procedural is to be construed as retrospective in its operation, unless a contrary intention appears, although the wisdom and convenience of that rule never seem to have been questioned. Plainly enough, par. (e) and the words which follow it require that, unless the contrary intention appears, an amending enactment shall be construed so that, notwithstanding the amendment, proceedings pending thereunder at the time of the amendment can be continued, and proceedings can be initiated after the amendment in respect of substantive rights acquired before the amendment took effect. The question is whether the subsection goes further and requires an amending statute to be construed, prima facie, in such a way as to preserve unaffected not only the legal proceeding or remedy itself, but also the course of procedure to be followed in taking the legal proceeding or pursuing the remedy. I had occasion to deal with this question in Smith v Thiess Peabody Coal Pty. Ltd. And I then said that it seemed to me –
“that all par. (e) is intended to do is preserve the availability of investigations, legal proceedings and remedies in respect of accrued rights, and not to preserve the procedure to be followed in the course of such legal proceedings.”
After further consideration I adhere to this view. It is true that the section provides that the amending Act shall not “affect” any legal proceeding and the word “affect” is of wide import. However, what is to remain unaffected is the legal proceeding or remedy itself. A proceeding or remedy is not necessarily affected by an amendment to the procedure to be observed in the litigation… I conclude therefore that s. 20 (1) (e) refers to the legal proceeding and remedy themselves, and that the section does not reveal an intention to reverse the established rule of the common law that a merely procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective.[50] (Footnote omitted)
[49] (1971) 125 CLR 228.
[50] Ibid 245-246.
The issue was also considered in Rodway v The Queen,[51] where the High Court considered amendments to the Criminal Code Act 1924 (Tas) with respect to requirements for corroboration of the evidence of a complainant in cases involving offences described as “Crimes Against Morality”. The Court held that the:
…amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation.[52]
[51] (1990) 169 CLR 515.
[52] Rodway v The Queen (1990) 169 CLR 515 at 523.
The operation of the common law rule is reinforced by s 275(2) of the CLCA which provides:
Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented.
The effect of s 275(2) of the CLCA is that procedural amendments that come into effect after the presentment of the information apply to the trial of an accused, even if they come into effect while the trial is proceeding. So much would seem to be required by the phrase “for the time being in force”. That would also appear to be the common law position for the reasons given by Vanstone J.[53]
[53] See also Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon J citing Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69 “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”.
The amendments made by Part 4 of the Act are procedural in nature.[54] It follows that, if s 22 of the Act had not been enacted, the Act would operate retrospectively,[55] and would apply to any trials whether the information was presented before or after 23 November 2008. The construction of s 22 of the Act must proceed on the basis that Parliament was well aware of the existence and operation of the common law rule governing the application of legislative reform of procedural rules. Statutes are replete with transitional provisions which were enacted precisely because Parliament intended to vary the operation of that common law rule in one way or another.
[54] Rodway v The Queen (1990) 169 CLR 515.
[55] While purely procedural amendments are said to have retrospective effect, in practical terms they can only have prospective effect, because they can only affect procedural steps taken after its enactment. Thus while they may apply to the procedure applied in resolving a controversy about rights and obligations that parties had at some time in the past, they do not affect the substantive rights of the parties involved. This is the case because no litigant has a vested interest in the course of procedure; Maxwell v Murphy (1957) 96 CLR 261.
It is also a primary rule of statutory construction that all words used in a statute are presumed to have meaning and effect.[56] Statutory provisions must be given some effective work to do. It follows that, subject to the qualification appearing in the paragraph which immediately follows, the construction of s 22 of the Act would ordinarily proceed on the basis that it was intended to change the common law rule.
[56] 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.
The Director contended that s 22 of the Act was intended to remove doubt as to whether the amendments were procedural or substantive, and was thus intended to reinforce the common law rather than change it. It can be accepted that the purpose of a legislative provision may be to avoid or remove doubt about the operation of the common law or another statutory provision. Where the statutory provision expressly declares that its purpose is “the avoidance of doubt”, it may more readily be concluded, indeed it may be necessary for a court to conclude, that the purpose of the legislation was just that and not to change the law. Even in the absence of such a formula, a court may conclude that the purpose of the provision is to remove doubt where there was, in fact, real doubt about the pre-existing law. However, in this case there was never any doubt about the application of Part 4 if s 22 of the Act were not enacted. Part 4 of the Act is very obviously procedural. If Parliament had entertained some doubt about whether Part 4 was procedural or not, I would have expected the enactment of a provision that simply stated that Part 4 of the Act should be regarded as procedural for the purposes of the common law rule.[57] In the absence of the commonly encountered formula, and of any doubt about the application of the common law rule to Part 4 of the Act, it is very unlikely that the purpose of s 22 of the Act was merely to confirm the common law.
[57] Cf Limitation of Actions Act 1936 (SA) s 38A.
In any event, on closer analysis the construction pressed by the Director is not one which merely confirms or clarifies the common law. Although the Director did not expressly submit that s 22 of the Act amended the common law rule, the construction for which he contends would have that effect. If the word “proceedings” in s 22 of the Act means a step in the proceedings, then Part 4 cannot apply to a trial that commenced before it came into operation. The Director’s position must therefore be that s 22 of the Act amends the common law by denying the application of Part 4 to trials that had commenced before Part 4 came into operation. As we have seen, that is not the position of the common law, which requires procedural questions to be determined in accordance with the rules and laws that are extant at the time that the question falls to be determined.
The text of s 22 of the Act does not suggest that its purpose is to modify the common law rule only in its application to trials that are part-heard on the commencement date. If that were the concern of Parliament I would have expected the transitional provision to declare that Part 4 applied to all proceedings, whether commenced before or after Part 4 comes into operation, save and except for committal hearings and trials that were part-heard at that time. The formula “whether before or after the commencement of this provision”, or variations thereof, is well known to Parliament. It is used in the CLC (RSO) AA, which was enacted at the same time as the Act. The way in which s 22 of the Act is expressed is not apt to give effect to such a limited modification of the common law rule. Instead, by declaring that Part 4 applies to proceedings commenced after that Part came into operation, s 22 of the Act suggests that a more substantial departure from the common law rule and s 275(2) of the CLCA was intended.
Leaving that further textual consideration aside, the question remains whether the purpose of the enactment of s 22 of the Act was to deal only with the handful of trials and committal hearings that may have been part-heard on the commencement date, or to the significantly greater number of cases already presented to the trial court at that time. To my mind it is unlikely that Parliament would have enacted a special measure for part-heard cases alone. Parliament could not have been sure that there would be any part-heard trials proceeding on the commencement date. If there were no part-heard cases proceeding on the commencement date, s 22 of the Act would have no effective work to do. On the other hand, Parliament is likely to have been alive to the fact that both the many cases awaiting trial in this Court and the District Court, including any of them that might be part-heard on the commencement date, would have been prepared for trial on the basis of the rules of evidence and procedure as they were before the enactment of Part 4. To my mind, Parliament is more likely to have been concerned about the risk of delay and interruption in the orderly hearing of all of those matters if the evidential rules were changed after the presentment of the informations than the small number, if any, of part-heard trials that might have been proceeding on the commencement date.
In my view, all of the considerations to which I have referred strongly militate against construing the word “proceedings” in s 22 of the Act to mean an interlocutory step taken in the course of prosecuting an information or a civil action. However, the Director relies on three principal contextual considerations in support of that construction and it is to those that I now turn.
Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008
The CLC (RSO) AA was assented to on the same date as the Act. The Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 was described by the Attorney-General in his second reading speech as a “companion Bill” to the Act. The Act was described as “part of suite of legislative reforms arising from the government’s extensive review of South Australian rape and sexual assault laws in 2006 that also includes the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 to be reintroduced in this session concurrently”. The Director accepted that the CLC (RSO) AA may be considered for the purpose of construing the word “proceedings” in s 22 of the Act. The Director contended that given the two Acts were closely related, for policy reasons s 22 of the Act should be construed in such a way so that the amendments made by the two Acts would operate from the same point in time and with respect to the same trials.
Section 16 of the CLC (RSO) AA reformed the law governing the joinder of charges by inserting subs (2A) in s 278 of the CLCA. Part 6 of the schedule to the CLC (RSO) AA enacted a transitional provision, expressed to be for the avoidance of doubt, with respect to an amendment to another substantive provision of the CLCA.[58] That transitional provision is the section to which I earlier referred as including the expression “the avoidance of doubt”. However, the CLC (RSO) AA did not enact any transitional provision with respect to the procedural reform effected by the amendment to s 278 of the CLCA.[59] The amendments of s 278 of the CLCA therefore applied to all trials whether they commenced before or after it was enacted.
[58] Section 21 of the CLC (RSO) AA repealed s 74 of the CLCA that had enacted the offence of ‘persistent sexual abuse of a child’, which is now proscribed by s 50 of the CLCA.
[59] The contrast between Parliament’s legislative choice not to enact a transitional provision for that procedural reform but to make transition provision by way of s 22 of the Act for Part 4 is a further reason why s 22 of the Act cannot be treated as merely confirming the common law.
Even though it is not possible to be certain why Parliament would wish to give reform of the joinder rules a more immediate operation than the amendments to the Evidence Act, it may be that Parliament favoured the immediate introduction of that reform because giving evidence in several trials is a significant hardship for an alleged victim to endure. Neither the CLC (RSO) AA nor the second reading speech make any reference to this issue. It is certainly not obvious to me from the nature of the provisions of the Act and the CLC (RSO) AA that Parliament must have intended the reforms to operate simultaneously.
I acknowledge that if the purpose of s 22 of the Act was only to allow trials that were part heard on the commencement date to be completed under the law as it was, then no similar provision was needed for s 16 of the CLC (RSO) AA. That is so because if a trial was part-heard when s 16 of the CLC (RSO) AA came into operation, the question of joinder will have been effectively and finally determined for that trial. Accordingly, I acknowledge that the failure to enact a transitional provision for s 16 of the CLC (RSO) AA, and the enactment of s 22 of the Act, are still consistent with an intention to have both reforms operate simultaneously. However, for the reasons I have given I am satisfied that Parliament is unlikely to have intended such a limited departure from the common law rule and s 275(2) of the CLCA.
Definition provided in s 67G of the Evidence Act
Section 20 of the Act inserts Division 10 into Part 7 of the Evidence Act, which is entitled “Sensitive Material”. A definition of “criminal proceedings” is found in s 67G of Division 10 of the Evidence Act. It provides:
67G – Interpretation and application
(1) In this Division –
… criminal proceedings means proceedings against a person for an offence (whether summary or indictable), including the following:
(a) proceedings for the preliminary examination of an indictable offence;
(b) proceedings relating to bail;
(c) proceedings for the trial of an offence;
(d) proceedings relating to sentencing;
(e) proceedings on an appeal against conviction or sentence
The Director submits that s 22 of the Act should be construed so as to conform with that definition. As such, it is contended that “proceedings commenced after the commencement of Part 4” in s 22 of the Act refers to “proceedings for the trial of an offence commenced” after 23 November 2008.
I would have thought that, if anything, the presence of s 67G suggests the very opposite. If the same definition of “proceedings” was meant to apply to s 22 of the Act, it could very easily have been expressed to do so. Instead, s 67G expressly limits the definition to Division 10 of the Evidence Act. Moreover, the proceedings mentioned in s 67G are more in the nature of actions than steps taken in an action. For example, a proceeding in relation to bail is an action taken under the Bail Act 1985, and a proceeding for the preliminary examination of an indictable offence is an action taken under the Summary Procedure Act 1921.
Even leaving those considerations aside, the definition is of marginal assistance only. Section 67G of the Evidence Act is the interpretation section for Division 10 which governs the use of images of alleged victims of sexual offences or deceased persons. The purpose of the definition in s 67G of the Evidence Act is limited to s 67J of the Evidence Act, which makes it an offence for a person who has possession of sensitive material of that nature “in connection with … criminal or civil proceedings” to allow access to that material for an improper purpose. Although some of the proceedings mentioned in s 67G of the Evidence Act may be characterised as steps in broader proceedings, the definition in s 67G was not directed to the difference between an action and a step taken in that action. The purpose was to expressly include within the expression “criminal proceedings” in s 67G of the Evidence Act ancillary actions like bail applications and committal proceedings.
Anomalies
The Director submits that the meaning given to s 22 of the Act by the Judge would result in a number of anomalies. However, during the course of argument, the Solicitor-General quite properly conceded that anomalies of one kind or another will result whichever construction be adopted. Once it is accepted that anomalies of a similar magnitude will beset either construction, any further examination of them cannot assist the objective task of discerning Parliament’s intention. Whatever judgment this Court may make on which of the anomalies is least undesirable, it cannot be assumed that Parliament shared that view and therefore intended the construction that avoids them.
Part 4 does not apply to informations filed in the trial court before it came into operation
The judicial function of statutory construction is sometimes described in terms of a dialogue between the courts and Parliament. On occasions, engaging in that dialogue requires courts to decipher Parliament’s command from a number of cryptic indications.[60] Nonetheless, the dialogue between Parliament and the courts can only be meaningful if courts expose the reasoning that results in the selection, from ambiguous statutory language, of one of a number of available meanings. Even more importantly, that reasoning must be anchored to the textual, contextual and purposive indicators of the legislative provision itself, so that the persons who are bound by the statute have the certainty to which they are entitled. The Court’s preference for one policy outcome over another cannot provide that certainty.
[60] Blackstone described the challenge of statutory construction in these terms:
“The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law.” (emphasis in the original) (Blackstone, Commentaries on the Laws of England, (1765), vol 1 at 59.
The continuing utility of the five “signs” identified by Blackstone to ascertain the will of the legislator was discussed by the Hon. Justice Crennan in a lecture delivered to the Victorian Bar in Melbourne on 28 November 2007.
In this case the indications which support the conclusion that “proceedings” refers to the action itself and not only to a step in that action can be summarised as follows:
·The primary meaning of the word “proceedings” is an action or legal cause.
·The Director’s construction limits the word “proceedings” to its secondary meaning of an interlocutory step in an action when there is no textual, contextual or purposive reason to give it such a strained construction.
·The word “commenced” more naturally describes the initiation of the action itself than the taking of an interlocutory step in that action.
·The use of the word “proceedings” instead of the words “trial” and “committal hearing” is significant.
·The language of s 22 of the Act does not suggest that it was merely intended to deny the application of Part 4 to trials or committal hearings that were part-heard when it came into operation.
·Section 22 of the Act is more obviously directed towards the mischief of avoiding disruption to the many matters that had been prepared for trial on the evidential and procedural rules as they were before the amendments effected by Part 4 of the Act. It is unlikely that Parliament enacted s 22 of the Act to make special provisions for a small number, if any, of part-heard trials that might have been proceeding on the commencement date.
Even though the word “proceedings” is capable of meaning both an action and a step taken in an action, the reasons advanced for reading the word down to mean the latter and not the former are not persuasive. There is no textual indication that Parliament intended that Part 4 operate simultaneously with the operation of the reform to the joinder rules made by the CLC (RSO) AA, even though it could easily have said so. There is no suggestion in the second reading speech, which referred to both Bills, that they were intended to operate simultaneously. It is not difficult to see why Parliament may have intended the new joinder principles to apply earlier than the amendments made by Part 4 of the Act. The enactment of the definition of “proceedings” in the new s 67G of the Evidence Act is largely equivocal, but the express application of that definition to Division 10 of the Evidence Act, if anything, suggests that the word “proceedings” in s 22 of the Act does not mean a step in the proceedings.
I therefore conclude that the phrase “proceedings commenced” is a reference to the institution of civil and criminal actions. It does not refer only to the taking of interlocutory steps in those actions.
That issue having been resolved, the question remains whether the “proceedings” commence at the time that the information is laid in the Magistrates Court, or whether they commence with the filing of an information in the court of trial.
When are criminal proceedings commenced?
An information alleging a major indictable offence may be laid in the Magistrates Court pursuant to s 101 of the Summary Procedure Act 1921. An information so laid is dealt with in accordance with the committal procedure prescribed by Division 2 of Part 5 of the Summary Procedure Act 1921. That procedure will conclude in one of the several ways allowed by s 107 of the Summary Procedure Act 1921: the discharge of the defendant, the committal of the defendant to a superior court for trial, or the trial of minor indictable and summary offences in the Magistrates Court.[61] Although the Magistrates Court is a court of record, committal proceedings are administrative in nature.[62]
[61] In addition if the defendant pleads guilty he or she may be committed to a superior Court for sentence: Summary Procedure Act 1921 s 108.
[62] See Grassby v R (1989) 168 CLR 1.
The prosecution of a criminal offence that lies within the jurisdiction of the Supreme Court or District Court is commenced by the presentment of an information in the name and by the authority of the Director in accordance with s 275(1) of the CLCA. It is to be observed that the initiating process for a prosecution in either the Supreme Court or the District Court is the same whether or not there has been a committal for trial.
The duty imposed on the Director by s 276(1) of the CLCA to present an information against an accused committed for trial, unless the Director is of the opinion that there is no reasonable ground for doing so, does not suggest an identity between the committal proceedings in the Magistrates Court and the proceedings commenced by the presentment of an information. If the proceedings were one and the same there would hardly be a need to impose a duty on the Director to file any initiating process.
The point was succinctly made by the Full Court of this Court in R v Butler[63] in this way:
There is no doubt that the proceedings before a Magistrate are, for some purposes, the commencement of the prosecution, which ends in conviction or acquittal in the Supreme Court (R v Willace (1797) 1 East.P.C. 186). But the proceedings in the Supreme Court are instituted by the information of the Attorney-General under s 275 of the Criminal Law Consolidation Act 1935 and they do not depend upon the committal for trial.[64]
[63] [1939] SASR 265.
[64] R v Butler [1939] SASR 265 at 267.
However, the accused submits that R v Hackett[65] is authority to the contrary. In Hackett the question was whether four summary offences included in an information charging a major indictable offence were brought within the time allowed by s 52 of the Summary Procedure Act 1921 and s 144A of the Motor Vehicles Act 1959. Those sections applied limitation periods of six months and one year respectively for bringing a complaint.
[65] (1996) 185 LSJS 156.
Section 52 of the Summary Procedure Act 1921 provided at that time:
Where no time is specifically limited for making the complaint by any statute or law relating to the particular case, the complaint shall be made within six months from the time when then matter of the complaint arose.
Section 144a of the Motor Vehicles Act 1959 provided:
Notwithstanding anything contained in any other Act, proceedings for an offence against this Act may be brought at any time within one year from the date on which the alleged offence was committed.
An information alleging offences to which those limitation periods applied was brought within time. Section 102(3) of the Summary Procedure Act 1921 required all charges joined on an information with a major indictable offence, whether they were summary or minor indictable offences, to be dealt with according to the procedures applicable to major indictable offences. Hackett was therefore committed for trial on the major indictable offence and the summary offences. Not surprisingly, the information charging the major indictable offence and the summary offences was filed in the District Court more than twelve months after the offences were allegedly committed. The only question before the Court in Hackett was whether s 52 of the Summary Procedure Act 1921 and s 144A of the Motor Vehicles Act 1959 were satisfied in circumstances where a charge for a summary offence was joined with a charge for a major indictable offence on an information which was laid within the relevant period of time.
With respect, one would have thought it a relatively uncontroversial construction of s 52 of the Summary Procedure Act 1921 and s 144A of the Motor Vehicles Act 1959 to hold that they were satisfied by the laying of an information in the Magistrates Court instead of a complaint, where the Summary Procedure Act 1921 itself authorised that course. Once that proposition is accepted, it would seem to follow that the complaint was made, and the proceedings brought, within time by the laying of the information in that way, even if the information was not ultimately heard and determined in the Magistrates Court, but instead resulted in a committal to another court for trial. Where an information is laid in the Magistrates Court within time, the provisions of the Summary Procedure Act 1921 will determine how the information is ultimately determined. The information having been laid within the time allowed by s 52 of the Summary Procedure Act 1921, and s 144a of the Motor Vehicles Act 1959 there was just no reason to inquire any further as to the ultimate disposition of that information. That is I think the basis on which Matheson J decided the case.[66] However, Lander J held that:
[T]he information which is laid before the Magistrate commences the same proceedings which are in due course determined by a Judge or a Judge sitting with a jury.[67]
[66] R v Hackett (1996) 185 LSJS 156 at 157.
[67] R v Hackett (1996) 185 LSJS 156 at 165.
Milhouse J agreed with both Matheson and Lander JJ.
The only authority cited by Lander J in support of his conclusion was the decision of this Court in Butler. However, only the first sentence of the passage in Butler that I have set out above was reproduced in the reasons of Lander J. In my respectful opinion, the second sentence is inconsistent with the notion that there is an identity between committal proceedings and the subsequent trial. It is to be noted that even the first sentence of the passage from Butler says only that proceedings before a Magistrate may, for some purposes, be the commencement of a prosecution. The prosecution of a major indictable offence may, in some contexts, refer to both the committal proceeding and the subsequent trial on indictment. Nonetheless, the second sentence in the passage cited from Butler makes it clear that, even in those circumstances, the proceedings in the trial court are separate and distinct from the committal proceedings. Moreover, as a matter of principle it is simply impossible to accept that administrative proceedings in an inferior court are the same proceedings as the subsequent judicial proceedings brought in the trial court.
For the above reasons my present view is that Part 4 of the Act does apply to informations presented in the trial court after it came into operation, even though the committal proceeding may have been commenced before that date. I observe that my conclusion is consistent with the approach taken to similarly expressed legislation by the Victorian Court of Appeal in R v Taylor (No 2).[68]However, strictly, the issue does not arise in this matter. The question in the case stated is best understood as asking whether it is a necessary condition for the application of Part 4 that the information be presented after Part 4 came into operation. I have answered the question on that basis. Whether that is a sufficient condition to attract the application of Part 4, where the information that resulted in the presentment was laid in the Magistrates Court before Part 4 came into effect, can be determined only in a matter with that procedural history.
[68] [2008] VSCA 57.
Conclusion
I would answer the questions:
1Yes.
2Given my answer to the first question, it is unnecessary for me to answer the second question.
68
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1