Stephens v The Queen

Case [2022] HCA 31

HIGH COURT OF AUSTRALIA

KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

PETER LEONARD STEPHENS  APPELLANT

AND

THE QUEEN  RESPONDENT

Stephens v The Queen

[2022] HCA 31

Date of Hearing: 16 June 2022

Date of Judgment: 7 September 2022

S53/2022

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that:

(a)the appeal against conviction on counts 6, 7, and 13 be allowed; and

(b)the verdicts of guilty on counts 6, 7, and 13 be quashed and acquittals be entered on those counts.

3.Set aside order 3 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that the sentence imposed on 13 November 2019 be set aside.

4.Remit the matter to the Court of Criminal Appeal of New South Wales for re‑sentencing on counts 1, 2, and 3 only.

On appeal from the Supreme Court of New South Wales

Representation

O P Holdenson QC with J P O'Connor for the appellant (instructed by Macedone Legal)

D T Kell SC with M W R Adams for the respondent (instructed by Office of the Director of Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stephens v The Queen

Criminal law – Sexual offences against child – Presumption against retrospective operation – Where appellant pleaded not guilty on 29 November 2018 to sexual offences against complainant – Where Crown was uncertain whether alleged conduct occurred when s 81 of Crimes Act1900 (NSW) in force, or when s 81 repealed but s 78K in force – Where s 80AF of Crimes Act came into force on 1 December 2018, allowing prosecution to rely, in relation to entirety of period, on whichever offence carried lesser maximum penalty – Where Crown was granted leave after appellant's trial had commenced to amend indictment to take benefit of s 80AF – Whether s 80AF could apply after an accused's trial had commenced.

Words and phrases – "arraignment", "change in the law", "commencement of a trial", "historic sexual offences", "indictment", "presumption against retrospective operation", "reasonable expectations", "retroactive", "retrospective", "sexual offence", "textual indications". 

Crimes Act 1900 (NSW), ss 78K, 80AF, 81.

Criminal Procedure Act 1986 (NSW), ss 20, 130.

Interpretation Act 1987 (NSW), ss 5, 30.

KEANE, GORDON, EDELMAN AND GLEESON JJ.  

Introduction

  1. The appellant, Mr Stephens, was convicted in the District Court of New South Wales of seven of 14 counts charged on an amended indictment concerning sexual abuse of a child. Mr Stephens appealed to the Court of Criminal Appeal of New South Wales from his convictions on four of those seven counts. The Court of Criminal Appeal set aside his conviction on one of those counts[1]. Mr Stephens appeals to this Court in relation to the dismissal of his appeal on the other three counts.

    [1]Stephens v The…

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Stephens v The Queen [2022] HCA 31
Case
[2022] HCA 31
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CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Stephens against his convictions for sexual offences against a child. The dispute centred on the retrospective application of a legislative amendment, s 80AF of the *Crimes Act 1900* (NSW), which came into force on 1 December 2018, after Mr Stephens' trial had commenced. The Crown sought to amend the indictment to take advantage of this new provision, which allowed for the prosecution to rely on whichever offence carried the lesser maximum penalty for conduct occurring over a period where different legislative provisions were in force.

The central legal issue before the High Court was whether s 80AF of the *Crimes Act 1900* (NSW) could be applied to Mr Stephens' trial, which had already commenced before the provision came into force. This required the Court to determine the temporal operation of the amendment, specifically whether it had retrospective or retroactive effect and, if so, whether it could apply to ongoing proceedings, particularly in light of the presumption against retrospective operation of legislation that affects existing rights.

The High Court, in allowing the appeal, held that s 80AF did not apply to Mr Stephens' trial. The Court distinguished the present case from *Rodway v The Queen*, noting that in *Rodway* the trial had commenced after the relevant legislation took effect and did not involve the question of whether the law could change during an extant trial. The Court found that s 80AF, in its retroactive operation, did alter the law concerning pre-existing offences by removing a potential path to acquittal based on chronological uncertainty of offending. The majority of the Court of Criminal Appeal had erred in concluding that s 80AF applied retroactively to trials that had already commenced, as there was no express or implied legislative intention to that effect, and such an application would defeat the reasonable expectations of an accused person.

Consequently, the High Court allowed Mr Stephens' appeal, quashed his convictions on counts 6, 7, and 13, and entered acquittals on those counts. The sentence imposed was set aside, and the matter was remitted to the Court of Criminal Appeal for re-sentencing on the remaining counts.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside order 1 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that:

(a) the appeal against conviction on counts 6, 7, and 13 be allowed; and

(b) the verdicts of guilty on counts 6, 7, and 13 be quashed and acquittals be entered on those counts.

3. Set aside order 3 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that the sentence imposed on 13 November 2019 be set aside.

4. Remit the matter to the Court of Criminal Appeal of New South Wales for re‑sentencing on counts 1, 2, and 3 only.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KEANE, GORDON, EDELMAN AND GLEESON JJ STEWARD J
Upon the commencement of s 80AF, the law changed for accused persons in a position similar to that of Mr Stephens. For those persons, the change in the law was not merely a matter of the evidence that was required to be led. The immediate effect of s 80AF was to extend the period that s 81 was in force, for conduct that constituted an offence under both ss 81 and 78K, from 8 June 1984 until 13 June 2003. The possibility of a path to acquittal based upon uncertainty concerning the period of offending was thereby removed.The decision of the Court of Criminal Appeal A majority of the Court of Criminal Appeal (Simpson A‑JA with Davies J agreeing) held that s 80AF applied retroactively including to trials that had already commenced. In the first strand of her Honour's reasoning, Simpson A‑JA considered that the reasoning of this Court in Rodway v The Queen[20] was "directly apposite" to the appeal before the Court[21]. In a further strand of reasoning, her Honour held that s 80AF did not alter a pre‑existing criminal offence, but instead did "no more than facilitate the proof of criminal conduct as an offence"[22].[20](1990) 169 CLR 515.[21]Stephens v The Queen (2021) 290 A Crim R 303 at 313 [41].[22]Stephens v The Queen (2021) 290 A Crim R 303 at 316 [58]. With great respect, and despite the cogency of other aspects of her Honour's reasons (including that Mr Stephens' trial had commenced before s 80AF came into force), neither of these strands of reasoning is correct. As to the first strand of Simpson A‑JA's reasoning, this Court in Rodway held that the Tasmanian Parliament had intended what was described as the "retrospective operation" of legislation that abolished a requirement of corroboration of a complainant's evidence for the proof of certain sexual offences. Importantly for this appeal, in Rodway the appellant's trial commenced after the Tasmanian legislation had taken effect. And the Tasmanian legislation did not countenance the possibility of the legal or evidential rules changing during the course of the trial. The only question in that case was whether the Tasmanian legislation was purely prospective in its operation. Thus, there was no issue in Rodway concerning whether the abolition of the requirement of corroboration applied to trials that were extant such that the requirement could change during the course of a trial. As to the second strand of Simpson A‑JA's reasoning, for the reasons in the section above, s 80AF, in its retroactive operation, did alter the law as to pre‑existing offences. Button J dissented, and would have quashed Mr Stephens' convictions on counts 6, 7, and 13. His Honour rightly held that the legislation had retroactive effect, but said that although social and political context might suggest that Parliament intended that the legislation apply to proceedings that had already commenced, there was no transitional provision to cover such proceedings, nor was there any extrinsic material setting out such an intention[23]. After observing that the effect of the legislation is that some accused persons who would previously have been acquitted will now be convicted, his Honour said[24]:"I am not satisfied that Parliament necessarily intended that the legislation is to apply to the relatively small subset of criminal proceedings for child sexual assault that had already commenced and that would feature the specific chronological problem of proof to which the legislation is addressed." (emphasis in original)[23]Stephens v The Queen (2021) 290 A Crim R 303 at 320 [91]‑[93].[24]Stephens v The Queen (2021) 290 A Crim R 303 at 321 [95], [99].

Ratio Decidendi

Legal Principle Established

Established by: KEANE, GORDON, EDELMAN AND GLEESON JJ, STEWARD J

His Honour's conclusion was correct.Expectations and the temporal operation of legislative provisions There is considerable confusion surrounding the nomenclature of retrospective and retroactive legislative provisions. On one view, they are separate concepts. A retrospective provision "operates for the future only" albeit that it looks backwards and "imposes new results in respect of a past event". Thus, for the future only, it "changes the law from what it otherwise would be with respect to a prior event". By contrast, a retroactive provision operates backwards and has been described as one that "changes the law from what it was"[25]. On another view, there is only one category. All these laws can loosely be described as retrospective, although retroactive laws are the only "true" retrospective laws[26]. Laws that operate for the future only, but impose new results in respect of past events, have been said to be retrospective in an "extended" sense[27], although that sense has sometimes been described as "misleading"[28]. These debates are not concerned with matters of principle. The distinctions between retrospective and retroactive laws are "terminological, not conceptual"[29]. However described, both are capable of defeating reasonable expectations concerning existing rights, although retroactive laws will generally be more pronounced in this effect. These distinctions should not distract from the underlying principle described below, concerning how to interpret the temporal operation of legislation.[25]Benner v Canada (Secretary of State) [1997] 1 SCR 358 at 381 [39], quoting Driedger, "Statutes: Retroactive Retrospective Reflections" (1978) 56 Canadian Bar Review 264 at 268‑269; Canada (Attorney General) v Hislop [2007] 1 SCR 429 at 482 [127]. See also Juratowitch, Retroactivity and the Common Law (2008) at 6.[26]R v Kidman (1915) 20 CLR 425 at 443. See also Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 642.[27]Maxwell v Murphy (1957) 96 CLR 261 at 285; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 133 [26].[28]Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at 637; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 133 [26].[29]Juratowitch, Retroactivity and the Common Law (2008) at 7. Another distinction is sometimes drawn between substantive and procedural provisions[30]. In Rodway, this Court referred to the presumption "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". This Court explained that "there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure" as such statutes "invariably operate prospectively"[31].[30]Wright v Hale (1860) 6 H & N 227 at 231‑232 [158 ER 94 at 95]; Maxwell v Murphy (1957) 96 CLR 261 at 267‑268, 285‑286; Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228 at 245‑246.[31](1990) 169 CLR 515 at 518.