Legal Research
Cases
Stephens v R

Stephens v R

Case [2021] NSWCCA 152 9 July 2021

Criminal Liability

Statutory Interpretation

Limitation Periods

Appeal

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stephens v R [2021] NSWCCA 152
Hearing dates: 16 April 2021
Date of orders: 9 July 2021
Decision date: 09 July 2021
Before: Simpson AJA at [1]
Davies J at [82]
Button J at [83]
Decision:
(1)   Appeal against conviction on counts 6, 7 and 13 dismissed;
(2)   Appeal against conviction on count 14 allowed; verdict of guilty on that count quashed and a verdict of acquittal entered;
(3)   Sentence imposed on 13 November 2019 set aside; in lieu thereof, the appellant is sentenced to an aggregate term of imprisonment for 6 years, to date from 26 August 2019 and expire on 25 August 2025, with a non-parole period of 3 years and 9 months that will expire on 25 May 2023.

Catchwords:
CRIME – sexual offences – offences alleged to have been committed between 1982 and 1987 – legislative changes with respect to sexual offences – Crimes Act 1900 (NSW) – s 81 repealed with effect from 8 June 1984 and s 78K enacted with effect from that date – appellant arraigned on indictment that charged offences against s 81 and s 78K in the alternative with dates commensurate with dates the provisions in force – indictment amended to take benefit of s 80AF Crimes Act – s 80AF allowed prosecution to rely on s 81 (as the offence carrying the lesser maximum penalty) for the entirety of the charged period, beyond the date s 81 was in force – whether judge erred in granting leave to amend indictment – whether principles against retrospectivity of legislation offended – when criminal proceeding commences – when criminal proceeding “pending”
STATUTORY INTERPRETATION – retrospectivity – whether s 80AF Crimes Act substantive or procedural – whether provision affects existing rights or obligations – to classify s 80AF as substantive and deny it retrospectivity would undermine legislative intention and deprive it of effectiveness – even if substantive, s 80AF clearly intended to alter the existing law – need for interpretation of statute in context of circumstances
CRIME – sexual offences – charge for offence against s 78K Crimes Act of homosexual intercourse with a male person aged between 10 and 18 years – indictment alleged offence committed during time when complainant 14 to 16½ years old – s 78T(1) Crimes Act provided that prosecution must be commenced within 12 months where complainant aged over 16 years at time of alleged offence – prosecution commenced much later – whether prosecution statute-barred – dates were an essential fact of prosecution and statutory time limit applied – conviction quashed and verdict of acquittal entered
CRIME – appeals – successful appeal against conviction on one count – aggregate sentence quashed and appellant re-sentenced on other counts

Legislation Cited:
Crimes (Amendment) Act 1984 (NSW), Sch 1
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A
Crimes Act 1900 (NSW), ss 78K, 78T, 80AF, 81
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Legislation Amendments (Child Sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stephens v R

Details

AGLC: Stephens v R [2021] NSWCCA 152
Case: [2021] NSWCCA 152
Decision Date: 09 July 2021

CaseChat Overview and Summary

In Stephens v R, the appellant was charged with multiple sexual offences occurring between 1982 and 1987, following legislative changes to the Crimes Act 1900 (NSW). The appellant was arraigned on an indictment charging offences under sections 81 and 78K of the Crimes Act, with the indictment specifying dates that corresponded to the periods when these provisions were in force. The prosecution subsequently amended the indictment to take advantage of section 80AF of the Crimes Act, which allowed them to rely on section 81 for the entirety of the charged period, despite section 81 being repealed from 8 June 1984. The primary issues for the court to decide were whether the judge erred in granting leave to amend the indictment and whether the principles against the retrospectivity of legislation were offended.

The court considered whether section 80AF of the Crimes Act was substantive or procedural, and whether it affected existing rights or obligations. It was argued that classifying section 80AF as substantive and denying it retrospectivity would undermine the legislative intention and deprive it of effectiveness. The court reasoned that even if section 80AF was substantive, it was clearly intended to alter the existing law, and its interpretation needed to be done in the context of the circumstances. The court held that the amendment was permissible and did not offend the principles against retrospectivity.

Additionally, the court examined the commencement of the criminal proceedings and the applicability of the statutory time limit for prosecution. The prosecution of the offence under section 78K of the Crimes Act, which involved homosexual intercourse with a male person aged between 10 and 18 years, was commenced much later than the statutory 12-month period required by section 78T(1) of the Crimes Act. The court found that the dates were an essential fact of the prosecution, and the statutory time limit applied. Consequently, the conviction on one count was quashed, and a verdict of acquittal was entered. The appellant's aggregate sentence was quashed, and he was re-sentenced on the other counts.

Orders