Stephens v R

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Crimes Act, which allowed them to rely on section 81 for the entirety of the charged period, despite section 81 being repealed from 8 June 1984.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.