Seeto v The Queen; Evans v The Queen

[2008] NSWCCA 227

New South Wales
Court of Criminal Appeal

CITATION:	Seeto v R; Evans v R [2008] NSWCCA 227
HEARING DATE(S):	16 September 2008
JUDGMENT DATE:	2 October 2008
JUDGMENT OF:	Giles JA at 1; Rothman J at 2; Price J at 12
DECISION:	1. Leave to appeal to Janice Seeto be granted, but the appeal be dismissed. 2. Leave to appeal to Stephen Richard Evans be granted, but the appeal be dismissed.
CATCHWORDS:	Criminal law - Statutes - whether proceedings statute barred - Statutes - interpretation - legislative history of Police Act 1990 - rules of construction - mischief to be remedied - consideration of extrinsic materials - Second Reading Speeches
LEGISLATION CITED:	Interpretation Act 1987 s 33, s 34 Justices Act 1902 Police Act 1990 s 200(2)(a), s 200(3), s 200(4) Police Amendment (Miscellaneous) Act 2006 Police Service Act 1990 s 106(1), Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 Police Legislation Amendment Act 1996
CATEGORY:	Principal judgment
CASES CITED:	Attorney General of the The Commonwealth v Oates [1999] HCA 35 (1999) 198 CLR 162 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Colquhoun v Brooks (1888) 21 QBD 52 Harrison v Melhem [2008] NSWCA 67 Mills v Meeking (1990) 169 CLR 214 Re Building Worker's Industrial Union of Australia Ex Parte Pillar [1991] HCA 50 (1992) 174 CLR 263 Re Coldham ex parte Bideson [No 1] (1989) 166 CLR 338 Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2 (1982) 148 CLR 88 at 94 Saraswati v R [1991] HCA 21 (1991) 172 CLR 1
TEXTS CITED:	Hansard, Legislative Assembly, 24 April 1996 at 444 Hansard, Legislative Council, 14 November 2006 at 3720
PARTIES:	Janice Seeto Stephen Richard Evans Regina
FILE NUMBER(S):	CCA 2007/13913; 2007/14922
COUNSEL:	C Davenport SC (Applicants) D Arnott SC and L Wells (Respondent)
SOLICITORS:	S O'Connor Legal Aid Commission (Applicants) S Kavanagh Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0810 07/11/0721
LOWER COURT JUDICIAL OFFICER:	Puckeridge QC DCJ
LOWER COURT DATE OF DECISION:	15 November 2007

2007/13913
2007/14922

GILES JA
ROTHMAN J
PRICE J

2 October 2008

Seeto v R

Evans v R

Judgment

1 GILES JA: I agree with Price J.

2 ROTHMAN J: I have had the benefit of reading in draft the reasons for judgment of Price J and the orders he proposes. I agree with the orders proposed by Price J and with his reasons. I wish to add the following comments.

3 It is unnecessary to recite the facts. The outcome of the appeal against conviction depends upon the correct statutory construction of legislation promulgated in 1996 that amended the pre-existing legislation. I shall refer to the pre-existing legislation (the Police Act 1990) as the 1990 Act; and the legislation promulgated in 1996 as the 1996 Amendment or the legislation as the 1996 Act.

4 The appellants submit that the ordinary and grammatical meaning of s 200(3) of the 1996 Act is to confine the time for a prosecution to be taken to 2 years from the date of the offence. The appellants submit, in essence, that it is impermissible to use the history of the legislation to create an ambiguity where none otherwise exists: see Re Building Workers' Industrial Union of Australia Ex Parte Pillar [1991] HCA 50; (1992) 174 CLR 263.

5 The Crown, on the other hand, submits that the history discloses no parliamentary intention in the 1996 Amendments to limit the time otherwise available for the prosecution of an indictable offence.

6 The effect of the Interpretation Act 1987 on the construction of the word “may” does not seem central to the issue under consideration. In the context of s 200(3) of the 1996 Act, “may” is facultative or permissive; it allows, or grants authority: see Re Coldham ex parte Brideson [No 1] (1989) 166 CLR 338 at 347-348.

7 The construction urged by the appellants implies, in s 200(3) of the 1996 Act, the exclusion of the capacity to institute proceedings outside the 2 year period expressed. This is achieved by use of a construction tool summarised in the maxim expressio unius est exclusio alterius or expressum facit cessare tacitum. In other words, the appellants submit that s 200(3) of the 1996 Act should read as if the word “only” was inserted before the words “within 2 years”. Otherwise expressed, the appellants seek to have the subsection construed as if it read “within 2 years and not otherwise”.

8 The underlying philosophy behind the above maxims of construction gives rise to a number of construction tools variously expressed: “inclusio unius”, “general and specific”, “expressum facit cessare tacitum”. Each is “a valuable servant, but a dangerous master”: Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94 citing Colquhoun v Brooks (1888) 21 QBD 52, at p 65. (See for their appropriate application Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 23-24 and the cases there cited.)

9 But the “ordinary” meaning of s 200(3) of the 1996 Act allows the commencement (either as a summary offence or on indictment) within 2 years. It does not preclude the commencement beyond 2 years, if authority otherwise exists. In order to derive that limitation, an inference must be drawn from the provisions.

10 As Price J observes the 1996 Amendments were introduced into the NSW Parliament together with the Police Corruption Bill 1996. The purpose of these cognate statutes was to deal with the mischief uncovered by Justice Wood in the Royal Commission. That Royal Commission disclosed systemic corruption over many decades and revealed the lengthy time period over which such corruption could be hidden. It would be both absurd and repugnant to the purpose of the statute, in those circumstances, to imply a limitation period of 2 years to prevent prosecution on indictment otherwise available within a 7 year period.

11 Such a limitation would be achieved without the parliament expressly or otherwise adverting to the limitation and as an unintended result of rendering the offence more serious by providing for it to be prosecuted on indictment. I agree with Price J.

12 PRICE J: The issue which this appeal raises is whether some of the offences to which the appellants, Janice Seeto and Stephen Richard Evans, had pleaded guilty and were sentenced in the District Court were at the time of the institution of proceedings statute barred.

13 Janice Seeto entered pleas of guilty in the Local Court to nine offences contrary to s 200(2)(a) of the Police Act 1990 and was committed to the District Court for sentence. The first eight offences involved her giving a bribe to Senior Constable Evans, a member of the New South Wales Police Force. These offences were committed from 27 February 2003 to 29 September 2006. The ninth offence which occurred between September 2006 and January 2007 involved an attempt to bribe another member of the Police Force, a Constable Davies. The proceedings against Ms Seeto, it appears, had been commenced by the issue and filing of nine Court attendance notices, (CANS) on 23 May 2007 in the Downing Centre Local Court.

14 Ms Seeto adhered to her pleas in the District Court and a further 35 offences on a Form 1 were taken into account by the Judge when she came to be sentenced on 3 April 2008. A total aggregate term of 21 months imprisonment with a non-parole period of 10 months dating from 3 April 2008 was imposed by the Judge.

15 Stephen Richard Evans had entered pleas of guilty in the Local Court to eight offences contrary to s 200(1) of the Police Act and was committed to the District Court for sentence. All of the offences involved receiving a bribe from Ms Seeto whilst he was serving as a member of the NSW Police Force and the dates on which those offences were committed were necessarily the same as those committed by Ms Seeto. Senior Constable Evans adhered to his pleas in the District Court and a further 35 offences were taken into account on a Form 1 when he came to be sentenced by the Judge at the same time as Ms Seeto. A total aggregate term of imprisonment of 1 year 10 months with a non-parole period of 12 months dating from 3 April 2008 was imposed by the Judge.

16 The proceedings against Senior Constable Evans had also been commenced by the issue and filing of eight CANS, it appears, in the Downing Centre Local Court on 23 May 2007.

17 The sole ground of appeal for each of the appellants is that the proceedings for the offences of 27 February 2003, 1 December 2003, 25 February 2004 and 11 October 2004 were statute barred by reason of subsection 3 of s 200 of the Police Act. The appeals had also specified an offence on 1 February 2005 but the appeals in relation to those offences were not pressed.

18 Sections 200(3) and (4) of the Police Act stated:

“(3) Proceedings for an offence against this section may be taken within 2 years after the act or omission alleged to constitute the offence.

.”

Section 200(3) was repealed on 1 February 2007 by the Police Amendment (Miscellaneous) Act 2006 which contained no relevant transitional or consequential provisions. Although s 200(3) was repealed by the time the proceedings against the appellants were commenced it is common ground that the subsection has application to offences committed prior to its repeal.

19 The appellants, in short, argued that s 200(3) was restrictive in character and applied to an offence contrary to s 200 irrespective of whether it was prosecuted on indictment or summarily before a Local Court. The appellants submitted that support for the contention that proceedings for the offences were statute barred was to be found in the Second Reading Speech of the Police Amendment (Miscellaneous) Bill in the Legislative Council on 14 November 2006 when the Hon. Eric Roozendaal, the Minister for Roads, and Minister assisting the Minister for Transport, said:

“The Bill proposes to remove the current two year statute of limitations on bribery offences under s 200 of the Police Act 1990.
Section 200 states that a member of NSW Police who receives or solicits any bribe is guilty of an offence. Further, a person (including a police officer) is guilty of an offence if that person gives or offers a bribe to a police officer, or for an improper purpose makes any collusive agreement with a police officer.
The section also provides that proceedings for an offence against the section may be taken within 2 years after the act or omission alleged to constitute the offence.
Prior to 1996 the offences were summary offences with a maximum penalty of 50 penalty units or imprisonment for 12 months, or both.
However, in 1996 the Act was amended to provide a new maximum penalty of 200 penalty points or imprisonment for 7 years, or both, for offences under s 200. Offences under section 200 were also made indictable.
Normally an indictable offence does not have a restriction or limitation of time in which prosecution of that offence must be commenced. Such time limitations normally apply to summary offences.
As the offences under section 200 are now indictable offences, there is no justification for retaining the 2 year limitation on the commencement of prosecutions in relation to those offences. This Bill rectifies this situation.” (Hansard, Legislative Council, 14 November 2006 at 3720).

20 During oral submissions, the appellants accepted that s 200(3) of the Police Act had when enacted extended the time limitation for the prosecution of summary offences from six months to two years. The appellants submitted that when offences contrary to s 200 became indictable offences in 1996, there was no reason to have a two year limitation as there was no statute of limitations for indictable offences. Section 200(3) remained, it was said, because of legislative oversight. The effect, however, was to convert what was an extension of time to a limitation of time. As there was ambiguity, the Court was entitled to look at the interpretation that was placed upon the legislation and the reasons for the repeal of s 200(3) in the Second Reading Speech of 14 November 2006.

21 The Crown, on the other hand, contended that s 200(3) remained expansive rather than becoming restrictive, and did not apply as the offences were not being dealt with summarily. All of the offences had been prosecuted on indictment in the District Court. Although an offence contrary to s 200 had become an indictable offence after the 1996 amendments, the retention of subsection (3) enabled an election to be made pursuant to s 207(3) to have the offence dealt with in the Local Court within two years of its commission.

22 Before giving consideration to the competing arguments it is convenient to review the legislative history of section 200 of the Police Act.

The legislative history

23 The origin of s 200(2) of the Police Act is to be found in s 99 of the Police Service Act 1990. Section 99 stated:

“ Bribery or corruption
99(1) A member of the Police Service who receives or solicits any bribe, pecuniary or otherwise, is guilty of an offence.

(a) gives, or offers or promises to give, any bribe (pecuniary or otherwise) or any other benefit to a member of the Police Service; or
(b) makes any collusive agreement with a member of the Police Service,
for the purpose of inducing the member to neglect his or her duty, of influencing the member in the exercise of his or her functions or of improperly taking advantage of the members position is guilty of an offence.
(3) Proceedings for an offence against this section may be taken within 2 years after the act or omission alleged to constitute the offence.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.”

24 Section 106(1) of the Police Service Act provided:

“ Proceedings for an offence against this Act or the regulations may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.”

25 Under the Police Service Act, the offences of receiving a bribe or giving a bribe to a police officer were then summary offences the maximum punishment for which was 12 months imprisonment.

26 On 1 July 1993, ss 99-120 of the Police Service Act were re-numbered to ss 200-221 by the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993. Sections 99 and 106 became ss 200 and 207 respectively.

27 Sections 200 and 207 were amended by the Police Legislation Amendment Act 1996 which commenced on 1 December 1996. Whilst subsection (3) of s 200 remained, subsection (4) was added which stated:

“(4) An offence under this section is an indictable offence.
Maximum penalty: 200 penalty units or imprisonment for 7 years, or both.”

28 Subsection (1) of s 207 was amended by the addition of the words “Except where otherwise expressly provided by this Act” to the commencement of the subsection. Subsections (3) and (4) were added to the section. Section 207 was relevantly as follows:

“( 1) Except where otherwise expressly provided by this Act, proceedings for an offence against this Act or the regulations may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

…

(3) If an offence against this Act is an indictable offence, a Local Court may nevertheless hear and determine the proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.
(4) If, in accordance with subsection (3), a Local Court convicts a person of such an offence, the maximum penalty that the court may impose is 50 penalty units or imprisonment for 2 years, or both.”

29 Section 207 was further amended on 7 July 2003 by the Justices Legislation Repeal and Amendment Act 2001. The words “constituted by a Magistrate sitting alone” were omitted from subsection (1).

30 The title to the Police Service Act 1990 was changed to the Police Act on 12 July 2002 by the Police Service Amendment (NSW Police) Act 2002.

31 As has been stated at [18], s 200(3) was repealed on 1 February 2007.

Dealing with the appeal

32 Section 56 of the Justices Act 1902 provided a time limit of six months within which proceedings for a summary offence were to be commenced unless some other time was “specially limited by the Act dealing with the matter”. It may be readily accepted that s 200(3) when originally enacted extended the time for commencing proceedings for the summary offences of receiving a bribe or giving a bribe to a police officer from six months to within two years after the act or omission alleged to constitute the offence. The critical question is whether when subsection (4) was added to s 200 by the Police Legislation Amendment Act in 1996 so that these offences became indictable, the terms of subsection (3) changed from providing an extension of the general time limit for summary proceedings (facultative) to providing a time limit for proceedings on indictment (restrictive). There is no time limit for the commencement of indictable offences unless otherwise limited by statute.

33 There are various principles of statutory construction which are relevant to the resolution of the question. First, there is the meaning of the word “may” in s 12 of the Interpretation Act 1987 that, if used to confer a power, indicates that the power may be exercised or not, at discretion. The second is the general principle contained in s 33 of the Interpretation Act that a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that does not. The third which is found in s 34 of the Interpretation Act allows for the use of extrinsic material if the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.

34 The task then is to construe the relevant provisions of the Police Act in their context which includes the purpose or object underlying the Act. I begin with the word “may” which appears in s 200(3). Words of command such as “shall” or “must” are not used. The statute thereby indicates a discretion in the commencement of proceedings. I move on to consider the 1996 amendments. Subsection (4) when inserted into s 200 in 1996 promoted an offence contrary to s 200 from being summary to indictable. The maximum penalty was increased from 12 months imprisonment to 7 years imprisonment. Section 207(3) enabled a Local Court to determine the proceedings in respect of an offence against s 200 even though it was an indictable offence if the parties agreed and the Magistrate was satisfied that it was proper to do so. The maximum penalty upon summary conviction was two years imprisonment.

35 Extrinsic materials may be used to discover the purpose or mischief to which the legislation is directed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Harrison v Melhem [2008] NSWCA 67 per Spigelman CJ at [13]. The extrinsic material which is of assistance in ascertaining the purpose or mischief to which the 1996 amendments were directed is to be found in the Second Reading Speech of Mr Whelan, the Minister for Police, on 24 April 1996 when he introduced into the Legislative Assembly the Police Corruption Bill and the Police Legislation Amendment Bill. The Minister said:

“Ongoing evidence at the royal commission demonstrates an even more serious problem in the New South Wales Police Service than was previously believed. Every available resource is need to combat corruption. The Government is committed to reducing corruption within the ranks of the Police Service as far as is humanly possible.” (Hansard, Legislative Assembly, 24 April 1996 at 444).

36 It is evident that the mischief to which these Bills were directed was serious corruption in the New South Wales Police Service which had been revealed by the Royal Commission conducted by Justice Wood. The purpose of the legislation was to introduce tough measures to reduce that corruption.

37 A construction of s 200(3) which embraces subsection (4) on its introduction in 1996, it seems to me, is inconsistent with the purpose of the amending legislation. How could serious corruption in the police force be said to be addressed if a time limit was imposed for offences which were made indictable when a time limit would not otherwise apply?

38 Upon a literal interpretation of ss 200(3) and (4), a two year time limit might be considered to apply to offences of bribery or corruption of police officers even though they had become indictable. Section 33 of the Interpretation Act allows a Court to consider the purposes of the Police Act in determining whether there is more than one possible construction: see Mills v Meeking (1990) 169 CLR 214. It is plain that the Police Act has purposes other than the establishment of the Police Service, the provision for its management and the employment of its members. As an Act usually has more than one purpose, the purpose of the particular provisions in question may appropriately be considered in their statutory context.

39 Section 200 is found within Part 10 which deals with offences relating to the Police Service. The section is directed at police corruption. A literal interpretation which would change subsection (3) from being facultative to restrictive does not promote the purpose of dealing with police corruption.

40 There is another interpretation of ss 200(3) and (4). The 1996 amendments introduced s 207(3) and (4) as well as s 200(4). Although offences contrary to s 200 became indictable, they could be dealt with summarily in accordance with s 207(3). Subsection (3) of s 200 enabled the summary disposal of an offence of bribery or corruption of a police officer if the proceedings for such an offence were commenced within two years after its commission. Considered in this way, s 200(3) remained facultative and not restrictive after the 1996 amendments. It did not operate to impose a time limit upon offences which were dealt with upon indictment. Such an interpretation promotes the purpose of the Act whereas a literal interpretation does not. Section 33 of the Interpretation Act requires that an interpretation which promotes the purpose of the Act is to be preferred to an interpretation which does not.

41 What then is to be made of the passage in the Second Reading Speech in 2006 which I have quoted at [19]? The limitations upon the use that can be made of the statements made by a minister in the course of a Second Reading Speech are well established. As was said by Mason P in Harrison v Melhem at [168]:

“On my understanding, the law is clear in Australia that a minister’s understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court.”

42 The statements made in 2006 by the Minister expressed a view of the effect of the amendments made almost a decade earlier. It appears that an assumption was made that the time limitation in s 200(3) applied to offences being prosecuted on indictment. In my view, such an assumption was erroneous as it did not take into account the purpose of the legislation. The statements made by the Minister which proceeded on an erroneous assumption do not prevail over the proper construction of the statute.

43 Section 200(3) was, in my opinion, unaffected by the Police Legislation Amendment Act 1996. What had been facultative did not become restrictive by the introduction of s 200(4). A time limit was not imposed upon offences contrary to s 200 which were prosecuted on indictment. As the charges the subject of the appeal were prosecuted on indictment a two year time limitation did not apply. The charges relating to the offences of 27 February 2003, 1 December 2003, 25 February 2004 and 11 October 2004 were not statute barred.

44 The Crown drew attention to Attorney General of The Commonwealth v Oates [1999] HCA 35; (1999) 198 CLR 162. Section 1316 of The Corporations Law, applying as part of the law of Western Australia, provided that “Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence …”. The respondent was charged with indictable offences against the Law, alleged to have been committed more than 5 years prior to the institution of the proceedings. It was held that s 1316 was facultative, operating to extend the twelve month period for the commencement of proceedings for offences punishable by summary conviction, and did not limit the commencement of proceedings for indictable offences. This construction of s 1316 was reached in the light of (i) the introductory words “Despite anything in any other law…” ; (ii) the word “may”; (iii) the perceived mischief that many summary offences could not be prosecuted if the twelve month period applied; and (iv) the legislative history whereby functional predecessors to s 1316 were enacted in order to deal with that mischief. Not all these matters are found in the present case, but the decision provides some support for the conclusion expressed in the preceding paragraph.

45 Accordingly I propose the following orders:

1. Leave to appeal to Janice Seeto be granted, but the appeal
be dismissed.
2. Leave to appeal to Stephen Richard Evans be granted, but the appeal be dismissed.
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