R v Seigneur

Case [2009] SASC 59

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)…

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AGLC
R v Seigneur [2009] SASC 59
Case
[2009] SASC 59
Decision Date

CaseChat Overview and Summary

In this case, the Full Court of the Supreme Court of South Australia was asked to consider questions reserved by a judge of the District Court regarding the application of certain amendments to the Evidence Act 1929 (SA) in criminal proceedings. The accused was charged with indecent assault, a major indictable offence, and had been committed to stand trial in the District Court. The legal issues that arose concerned the admissibility of evidence under the newly inserted sections 34M and 34CB of the Evidence Act, which were brought into effect by the Statutes Amendment (Evidence and Procedure) Act 2008 (SA). Specifically, the court had to determine whether these new provisions applied to the accused's trial, which commenced after the statutory amendments came into force.

The court ruled that the sections 34M and 34CB of the Evidence Act applied only to trials on Informations presented in the court of trial after 23 November 2008, the date the amending Act came into operation. The court held that the administrative proceeding in an inferior court was not the same proceeding as the subsequent judicial proceeding brought in a superior court. According to the court, proceedings commenced on the presentment of the information in the court of trial. This interpretation was consistent with the language of the transitional provision in the amending Act, which applied the new provisions to proceedings commenced after the commencement of Part 4 of the Act. The Full Court upheld the judge's ruling, stating that the relevant sections did not apply to the accused's trial.

In summary, the Full Court found that the statutory amendments did not apply retroactively to the accused's trial, which had already been committed to the District Court before the amendments came into effect. Consequently, the evidence in question was held inadmissible at common law. This decision highlights the importance of the timing of the commencement of proceedings in relation to the applicability of new legislative provisions in criminal trials.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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; andb)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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

GRAY J
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 provisionThe 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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.