Stephens v The Queen
[2022] HCATrans 108
[2022] HCATrans 108
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S53 of 2022
B e t w e e n -
PETER LEONARD STEPHENS
Appellant
and
THE QUEEN
Respondent
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON THURSDAY, 16 JUNE 2022, AT 9.45 AM
Copyright in the High Court of Australia
MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR J.P. O’CONNOR, for the appellant. (instructed by Macedone Legal)
MR D.T. KELL, SC: May it please the Court, I appear with my learned junior, MR M.W.R. ADAMS, for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))
KEANE J: Yes, Mr Holdenson.
MR HOLDENSON: The issues which arise for consideration and decision on this appeal can be sourced to and conveniently and simply illustrated by a reading of the indictment which was presented on 29 November 2018 and upon which the appellant, as he now is, was arraigned on that date, 29 November 2018, and it is set out in the core appeal book at pages 5 through to 10.
If I could take the Court to that document, but whilst taking the Court to the indictment could I just remind the Court that the offence created by section 81 of the Crimes Act 1900 (NSW) was in force from 31 October 1900 through to and including 7 June 1984, its repeal being effective on 8 June 1984, and the offence created by section 78K of that Act was in force from 8 June 1984 through to 12 June 2003.
Now, if I could take the Court, as I say, to that indictment, and although this appeal concerns three convictions could I just take the Court to the third page of that indictment, which is at page 7 of the core appeal book, and your Honours will see, at the foot of the page, count 7. Count 7 alleges an offence of – I will just call it assault contrary to section 81 of the Crimes Act. The wording of the count reflects the fact that section 81 was repealed with effect from 8 June because the last of the two dates within the wording of the count is “7 June”.
Over the page is count 8 and as is apparent from the head of the page, count 8 was alleged in the alternative to count 7. It alleged an offence contrary to section 78K, I will call it an offence of intercourse. The wording of the count reflects the fact that section 78K came into force on 8 June 1984, that being the first date set out within the wording of that count. As is clear, those two counts concern the same offending act, and they were alleged in the alternative, and as I think I have said, on his arraignment on 29 November 2018 on that indictment, the accused – as he then was – pleaded not guilty to each count, including those two counts, counts 7 and 8. Issue was thereby joined, and the trial had by then commenced.
Now, had the trial continued or proceeded on that day, the day of the arraignment, 29 November 2018 and concluded on that day, the accused could only be convicted in respect of that one act which was the subject of both counts 7 and 8. First, if the Crown could prove beyond reasonable doubt that the act was committed on or before 7 June 1984, in which event the then‑accused would be convicted on count 7 of an offence contrary to section 81 or, alternatively, if the Crown proved beyond reasonable doubt that that act was committed on or after 8 June 1984, in which event the then‑accused would be convicted on count 8, for an offence contrary to section 78K. If the Crown could prove neither, that is, neither beyond reasonable doubt, then the accused would necessarily be acquitted on both counts 7 and 8.
So, just pausing for a moment and picking up the language and the approach of the New South Wales Court of Criminal Appeal in one of the cases we have cited in our documents, R v Greenaway (2000) 118 A Crim R 299 – a case which concerned a conviction for an offence contrary to section 81 – it was there held that it was necessary for the Crown to fix the period during which the assault alleged contrary to section 81 had occurred, and to confine that period to the period when section 81 was in force.
That period is the only period – and this is the language of the court in that case – it is the only period for which that offence is maintainable in law. I might just spend a couple of moments taking your Honours through that case – R v Greenaway (2000) 118 A Crim R 299. Your Honours will see from paragraph 5 of the ‑ ‑ ‑
KEANE J: Is it in the joint book of authorities?
MR HOLDENSON: Yes, it is in the joint book of authorities.
GORDON J: Tab 27.
MR HOLDENSON: I will take the tip and assist the Court – it is tab 27, which might be at page 1020. Paragraph 5 of the judgment of his Honour Justice Greg James, who delivered the leading judgment – paragraph 5, it is apparent that there was- the case concerned an offence contrary to section 81 of the Crimes Act:
indecent assault upon a male.
Paragraph 6 sets out the date - this case concerns count 4. In the last sentence of paragraph 6 of the judgment, the dates alleged within the count were 1 November 1983 through to 31 December 1984 – obviously going beyond 7 June 1984.
The next paragraph – paragraph 7 – makes reference to the fact as it was that it was on 8 June 1984 that section 81 was repealed, abolishing the crime the subject of section 81. That posed, as I recall, the language of paragraph 9 of the judgment, a problem for the Crown:
It has become apparent when one has regard to the Crown's submissions that it is not possible to fix the occasion upon which the indecent assault alleged is said to have occurred with any greater accuracy than at some time during the period particularised. It follows that it is not possible to say whether an offence was committed under the repealed provision –
that being section 81:
or under the new provision –
which was, in that case, section 78Q. As was explained in paragraph 11, this was a case where the specification of dates became something more than a mere matter of particulars. In paragraph 11 it reads – and I quote:
The specification of dates fixing the time of the commission of an offence in an indictment is usually a mere matter of particulars. However, in appropriate circumstances, that mere matter of particulars may achieve importance such as to show that the offence might not be maintainable in law –
Now, with respect to that 18-count indictment which was presented, as I say, on 29 November 2018 and upon which the then accused was arraigned, I have just undertaken an analysis with the Court with counts 7 and 8. The same sort of analysis can be undertaken with respect to counts 9 and 10, which are likewise on page 8 of the core appeal book. So, keeping in mind that it was accepted by the court below that the appellant’s trial had commenced no later than the ‑ ‑ ‑
KEANE J: Mr Holdenson?
MR HOLDENSON: I am sorry.
KEANE J: Can I just ask you, apropos of what you are putting to us, particularly paragraph 6 of your oral outline:
If the Crown could prove neither beyond reasonable doubt, then the Appellant would necessarily be acquitted on both Counts –
The force of the judgment of the majority in the Court of Criminal Appeal is that the possibility of that outcome is simply so unattractive and unjust that it explains the enactment of section 80AF. I think you would have to accept that. The question we have is a temporal question as to when section 80AF operates.
MR HOLDENSON: That is right.
KEANE J: But we do approach those questions, do we not, on the footing that we can recognise - one thing is clear is that Parliament regards the outcome in cases like Greenaway as an outcome that it sought to alter.
MR HOLDENSON: Yes.
KEANE J: The question is whether it altered it in relation to trials that were on foot.
MR HOLDENSON: That depends upon a question of statutory construction. We have identified ‑ ‑ ‑
KEANE J: Of section 80AF.
MR HOLDENSON: Yes, 80AF, by reference to some learning with ‑ ‑ ‑
KEANE J: Before we go to the learning, should we not go to the section?
MR HOLDENSON: Well, I will go to the section but ‑ ‑ ‑
KEANE J: But should we not go to the section before we go to the learning?
MR HOLDENSON: Well, we can go to the section.
KEANE J: If it is a question of statutory interpretation ‑ ‑ ‑
MR HOLDENSON: Yes.
KEANE J: ‑ ‑ ‑ the old‑fashioned view might be to start with the section.
MR HOLDENSON: Yes. Turning to the section, one could – well, the first thing one can say about the section is what has been set out in paragraph 14 of the outline of oral submissions. There is not to be found in that amending Act a transitional provision. There is not to be found within that amending Act a provision which has the effect of deeming section 80AF to have come into effect from an earlier date in time than 1 December 2018, and there is nothing within the amending Act or section 80AF in particular, or any other statute, which evidences a legislative intention that section 80AF applied to trials which had commenced prior to 1 December 2018, the date upon which section 80AF came into force, the appellant’s trial being one of those trials.
KEANE J: If one looks at the section, and subsection (1)(a), it says:
This section applies if:
(a)it is uncertain as to when during a period conduct is alleged to have occurred –
The first of the preconditions to the application of the section speaks of uncertainty. When relevantly does that certainty arise? If one looks at the Minister’s second reading speech, it looks like the Minister is talking about uncertainty at the time a prosecution is to commence.
MR HOLDENSON: The first thing to be said about the Minister’s second reading speech is that although that constitutes part of the context, the Minister’s second reading speech is not to be substituted for the wording of the statute.
KEANE J: Absolutely.
MR HOLDENSON: If the words of the statute do not bear the construction then ‑ ‑ ‑
KEANE J: The second reading speech does help to identify the mischief at which the section is aimed.
MR HOLDENSON: Mere identification of the mischief, in our submission, does not get the Crown over the line as a matter of statutory construction, just as ‑ ‑ ‑
EDELMAN J: Mr Holdenson, this point might assist you rather than be a point that is necessarily against you because ‑ ‑ ‑
KEANE J: It is always wise to beware of Greeks bearing gifts, Mr Holdenson, but sometimes it is not.
MR HOLDENSON: I am grabbing the point now.
KEANE J: If one looks at the operative provision, which is subsection (2), it says:
In such a case –
that is, in a case in which the preconditions in subsection (1) are satisfied:
a person may be prosecuted –
In the second reading speech, we see the Minister’s concern with an uncertainty that affects the prosecution. Would one not regard subsection (2) and the authority that it gives to prosecute as being concerned with prosecutions that follow the enactment of the authority to prosecute?
MR HOLDENSON: Yes.
KEANE J: If that is right – if that is the effect of the section and the section does not speak of authority to continue prosecutions that have been commenced ‑ ‑ ‑
MR HOLDENSON: No.
KEANE J: ‑ ‑ ‑ as you say there is no transitional provision and there is no use of language that suggests it applies to prosecutions that are already on foot then is that not an indication that what the section is concerned with is uncertainty as to prosecutions that have not yet been instituted?
MR HOLDENSON: Yes, it does, when one focuses on subsection (1)(a) coupled with (2)(a).
GORDON J: There is another element to 2(a), as well. Not only does it say:
In such a case, a person may be prosecuted –
but it then goes on and identifies:
and in prosecuting that offence –
you have alteration of proof in relation to two matters.
MR HOLDENSON: In a manner which we have described in our documents as either akin to creating an offence for the period ‑ ‑ ‑
GORDON J: You do not need to go that far, Mr Holdenson.
MR HOLDENSON: No.
GORDON J: We are looking at it to see whether or not this is – as Justice Keane has put to you – applying to trials that have already started or where someone has already been – the prosecution – which is probably the better way of looking at it – has already been started.
MR HOLDENSON: Yes.
GORDON J: We are trying to work out what the proper construction is of section 80AF. It seems though, by its structure, there are a number of indicators that might suggest that it only applies to – or the better construction of it is, given its terms – prosecutions which have not yet commenced.
MR HOLDENSON: Yes.
GORDON J: Not a trial ‑ ‑ ‑
EDELMAN J: It is a ‑ ‑ ‑
GORDON J: Sorry, Justice Edelman.
EDELMAN J: It is a pretty short point, is it not, Mr Holdenson, that, on any view, section 80AF intends to change the rules of the game. The question is, does it intend to change the rules of the game once the game has begun?
MR HOLDENSON: That is correct. What we did – whether we did it the long way or the short way – what we did was we identified the leading cases which are concerned with statutes – amending statutes – which have an effect upon trials – I am talking about Newell, Rodway and Victrawl – which follows Rodway – and Lodhi – and identifying the language and the points made in those cases – which might be described as “in this area of discourse” – and explaining why it is, by reference to those cases, that this statute does not fit within that. But, in that regard, the point we ‑ ‑ ‑
GORDON J: But that is the difficulty about that, Mr Holdenson.
MR HOLDENSON: Sorry?
GORDON J: The difficulty about that is, as Justice Keane puts to you, you have to start with the legislation.
MR HOLDENSON: Yes.
GORDON J: You have to ask yourself, what does it say, what is it directed to and what is its better construction, having regard to its terms and field of operation?
MR HOLDENSON: Yes. When one looks at it in that way, the field of operation in subsection (2) – indeed, within the first line – is confined to something which has not yet commenced.
KEANE J: It is an authority to do so.
MR HOLDENSON: Yes – to do something ‑ ‑ ‑
KEANE J: Which you have not yet done.
MR HOLDENSON: ‑ ‑ ‑ which does not – for want of a better word, perhaps – validate that which has already been set in train and partly done – and in a sense – sorry for going back to the words – pending – that which is pending ‑ ‑ ‑
STEWARD J: But, Mr Holdenson ‑ ‑ ‑
MR HOLDENSON: ‑ ‑ ‑ so it is an authority to do something in the future, post 1 December, on that construction.
GLEESON J: Mr Holdenson, I would like to actually ask you a question which challenges your submissions – a different perspective. What if the trial commenced on 3 December and during the course of the trial, the accused adduced evidence which created uncertainty about the period in which the conduct occurred? In that case, would the prosecutor be entitled to amend the indictment – relying on section 80AF – or is section 80AF a power that the prosecution can only use to facilitate prosecution prior to the commencement of the trial?
MR HOLDENSON: We would say the answer to that question – in a sense, there are two answers to that question – but section 80AF, first of all, could not be invoked if the trial – you said 3 December – if the trial had commenced before 1 December. Secondly, the provision with respect to amendment – and so, section 80AF would not apply, which means there would be no power to amend by reference to section 80AF and in any ‑ ‑ ‑
GLEESON J: Mr Holdenson, I want you to focus on the different scenario of a trial that commences after the Act ‑ ‑ ‑
MR HOLDENSON: I am sorry.
GLEESON J: ‑ ‑ ‑ commences operation. What happens when the indictment is brought, say in terms of the original indictment here, and during the course of the trial, the accused adduces evidence which puts into question whether the conduct occurred pre or post‑June 1984. In that case, does section 80AF have the intended beneficial – or I should not beg the question – have the beneficial operation or can it only be used by the prosecutor before the trial commences?
MR HOLDENSON: It can only be used by the prosecutor before the trial commences and, on this hypothesis, the trial has commenced after 1 December and it has already commenced at the time that the question arises when the prosecutor presumably makes the application to amend. So, the answer would be no. A further and alternative ‑ ‑ ‑
GLEESON J: So, is that not a significant gap in the beneficial operation of the provision?
MR HOLDENSON: The provision may have been drafted in such a way as to allow, or even create, or leave gaps. The gaps are such that they cannot be filled in by the court in construing a legislation, and certainly not legislation of this nature, keeping in mind the effect that the amendment to the indictment would have.
But there is, in any event, a further and alternative submission which can be made. Your Honour’s question concerned the situation where the accused adduced evidence which created the so‑called uncertainty. That might well be a matter which the trial judge would take into account in determining not to grant the prosecutor’s application to amend because the source of the uncertainty was created by the accused adducing evidence in support of his or her defence to the charge, which now has – in the light of your Honour’s question and the hypothesis underpinning it – a question – an issue as to uncertainty.
STEWARD J: Mr Holdenson, can I ask you a question in relation to your first answer to Justice Gleeson’s question to you, and her hypothetical. The second reading speech refers to a discussion paper entitled “Child Sexual Offences Review”, and that discussion paper specifically says that the problem – the mischief – is that it is common that during a trial the evidence relating to when an offence has taken place becomes uncertain and it is at that point that you would seek an amendment pursuant to section 20 to the indictment.
MR HOLDENSON: Yes ‑ ‑ ‑
STEWARD J: If that is the mischief – or at least one aspect of the mischief – then surely the answer to Justice Gleeson’s question in her hypothetical is that a prosecutor can post‑1 December – where the trial starts after that date – invoke section 80AF.
MR HOLDENSON: There are two answers to that. The first answer is that, as I recall, what was said in the review or the report to which the Attorney referred in the second reading speech – when it spoke about how it is that the evidence during the trial may add to the uncertainty – was not in a context where the accused adduced evidence ‑ ‑ ‑
STEWARD J: No, it was the complainant.
MR HOLDENSON: Yes.
STEWARD J: Yes.
MR HOLDENSON: That is the first thing. The question asked by Justice Gleeson was confined to the accused adducing evidence. But, secondly ‑ ‑ ‑
STEWARD J: So, just pausing there, is your answer different if it was a complainant that gave rise to the uncertainty?
MR HOLDENSON: Only as to the second part of the answer I gave to Justice Gleeson - was with respect to the manner in which the trial judge would exercise their discretion consequent upon a prosecutor making an application to amend, namely, how it was that the evidence as to uncertainty got to be adduced. But, there is another point to be made in response to your Honour Justice Steward’s question, and the second point is this. There really is something of a disconnect between the report, the second reading speech, and the statute.
So, one must be very careful in determining the intention of the legislature in its enactment of section 80AF, by drawing upon passages, or extracts, or points made in the second reading speech. I made that point in response to a question put to me by Justice Keane. I may have not ‑ ‑ ‑
STEWARD J: But accepting that – and I do – 80AF(1)(a) simply says:
This section applies if:
(a)it is uncertain –
Why would it not then apply if the uncertainty arises during the trial?
MR HOLDENSON: Keeping in mind we are dealing with questions which focus on pre‑1 December and post‑1 December, and our case, of course, concerns the trial commencing pre‑1 December, within those authorities – one of which is obviously Newell, the first case – one must be careful in reading very generally expressed provisions as is paragraph (1)(a).
That is the point made in particular by Justice Dixon as he then was in Newell, that passages such as that should be read down in this area of discourse, pending proceedings. That was of course identified and explained by Justice Spigelman in Lodhi’s Case when he devoted, I think, three paragraphs to an analysis of that which was decided in Lodhi.
So, keeping in mind principles of legality, clear expression – if something is going to be changed from what it has always been, you expect clear language to be used, et cetera. One must read some of these expressions down, not just take them as generally as they have been set out.
GORDON J: One of the other ways of possibly looking at it and I do not know whether ‑ ‑ ‑
MR HOLDENSON: I am sorry, your Honour, I cannot hear you. I am sorry.
GORDON J: One of the other questions which may arise is, what is prosecution? Consistent with at least some authorities of this Court, prosecution commences upon the laying of the charge. In other words, prosecution does not start when the trial starts. It may very well be that if it is construed to be an authority by way of direction to the prosecutor, either you may be prosecuted by reference to crafting or compiling the charges on the indictment in a particular way, then it may very well be that whether or not the trial has commenced may be interesting but irrelevant for these present purposes.
MR HOLDENSON: We know in this case that the trial commenced no later than – it was not said to have commenced on – it was said to have commenced by reference to the authorities, and it was the subject of argument below - no later than the arraignment on the presentation of that indictment on 29 November. It might of course be the case ‑ ‑ ‑
GLEESON J: Mr Holdenson?
MR HOLDENSON: Yes, your Honour?
GLEESON J: Mr Holdenson, I apologise for cutting you off, but my question – when it is convenient – is, why might not the word “prosecuted” in subsection (2) refer to a process which includes the trial rather than simply a point in time?
MR HOLDENSON: When you look at paragraphs (a) and (b) which speak of requirements to establish, which is about what needs to be proved and speaks in terms of ‑ paragraph (2)(a) as “offence charged”, and it is, of course, during a trial that there is the requirement to establish things, and the second line speaks in terms of:
if the prosecution can establish –
so, it would certainly be applicable – it would only be applicable after the arraignment – or after the presentation, perhaps arraignment, on the indictment.
KEANE J: So that, on that footing, no one would know until, at the earliest, the closure of the Crown case, or possibly at the end of all the evidence, what charges were actually being pursued by the prosecution? That would be contrary to the ordinary notion that the rules of the game ought to be clear to all at a point in time in which the accused is charged and so can plead guilty to something that is identified, and is that not what we want? I mean, we want people to plead guilty to what they are actually guilty of being charged with. A construction of the section that speaks – that takes uncertainty to mean a general uncertainty as to the evidence as opposed to a prosecutor’s perception of the uncertainty, if it is an uncertainty to be determined at trial is it to be determined at the end of the Crown case or is it to be determined at the end of the accused’s evidence? How does this work on this scenario?
MR HOLDENSON: With difficulty, obviously. But just bringing it back to this case for a moment, with respect to – and just focusing on the three counts the subject of this appeal, 6, 7 and 13 as they were on that substituted indictment in February 2019, 6, 7 and 13 counts – 6 and 7 got into that state, that amended state, that substituted state, with the wider dates and confined to a section 81 offence on the first occasion that the matter was before the court after 1 December 2018, namely, on 5 February 2019.
The other count, which was on the 2018 indictment, count 17, which became count 13, as we set out in that – there is a paragraph in our submissions which details the history, but count 17, which became count 13 – and when it was count 13 it had the dates – when it was count 13 it was 6 July 1985, 6 July 1986, and it was an offence contrary to 78K. And then during the course of the trial the wording of the count was changed, first of all to bring the date back pre‑June 1984, in fact to 6 July 1983, so it was an 1983 to 1986, and then it became a section 81 from a 78K.
So that occurred during the trial. So in this case we had a number of situations, one of them being the situation which your Honour, I think, is suggesting is somewhat unsatisfactory when the rules of the game should be made clear at the beginning, when the Crown case should be formulated in such a manner that one knows what it is and one can plead on arraignment accordingly.
STEWARD J: Can I ask you, Mr Holdenson, did anything take place between the arraignment on 29 November and then the subsequent repleading in February?
MR HOLDENSON: No. Could I just take the Court to our outline of submissions? Paragraph 9 of the submissions sets out 1 December 2018. That is the enactment – or coming into force, I should say – of section 80AF. On 5 February, we have the prosecutor seeking and being granted leave to amend the indictment by way of a substitution. So the next date after 1 December 2018 is 5 February. There was an arraignment on that day. That was repeated on 7 February before the jury panel, and then – so that answers your Honour’s question. But then 19 February is the next date in the chronology which affected that count. What had been 17 became 13, and it affected 13.
GORDON J: Mr Holdenson, in Lodhi, Chief Justice Spigelman had two routes to reach the same conclusion.
MR HOLDENSON: Yes.
GORDON J: One was a question of construction, which we have debated, at least to some point so far. The second was by reference to what was then section 8 of the Commonwealth Interpretation Act, which finds an equivalent, I think, in section 30 of the Interpretation Act (NSW).
MR HOLDENSON: That is correct.
GORDON J: I notice from your outline that you have relied upon that. Is that a new argument?
MR HOLDENSON: I think we had it in our outline in the New South Wales Court of Criminal Appeal. I do not recall whether or not it was written within the outline for the application for special leave.
GORDON J: No, that is all right. May I ask this question then? In relation to section 30(2), which provides that:
the amendment or repeal of an Act . . . does not affect:
(a) the proof of any past act or thing –
is that by reference to section 80AF(2)? Is that what you are referring to there, that is, it does do that and therefore should not be construed as applying to pending proceedings?
MR HOLDENSON: Correct. But can I just say with respect to subsection (2), we have a construction of subsection (2) that we have set out in our reply where we attempt to explain why it is that section 80AF should not be seen as being merely procedural in effect. Your Honours will recall ‑ ‑ ‑
GORDON J: I, for my part, do not find the distinction of procedural versus substantive very satisfactory here because it is a spectrum. There are aspects either way. The real question here is what is to be achieved or sought to be achieved by the statute - I speak only for myself - and then to ask whether or not what it is directed. It seems to be when you are – the language of 30(2) is focused upon the proof of any past act or thing, the question is what is section 80AF(2) doing?
MR HOLDENSON: Yes.
GORDON J: Is it directed or concerned with proof of any past or thing?
MR HOLDENSON: Yes. But it does that by creating within it a deeming provision, namely upon the satisfaction of what is set out in subsection (1). Then all you have to do is prove that here section 80(1) was in force at some point during the now extended period, and that deems you – so it is effectively a deeming provision – to have committed the offence contrary to section 80(1). So, it is actually altering that which needs to be proven in order to prove the commission of an offence contrary to section 80(1).
GORDON J: Is that following along in terms of structure and principle that is set out in the alternative route by Chief Justice Spigelman in Lodhi.
MR HOLDENSON: Sorry, is that ‑ ‑ ‑
GORDON J: Is that argument consistent with that which Chief Justice Spigelman identifies as the alternative route in Lodhi?
MR HOLDENSON: Yes, albeit in the last paragraph Chief Justice Spigelman makes reference to there having been no advertence to – and I will get in front of me, the precise words – I recall it is paragraph 55 where, having worked through:
at least in a criminal context, a clear advertence to existing legal proceedings should exist before the Court concludes that there is a legislative intention to the contrary of s 8(e) -
which is here 30(1)(e), and he could detect no such legislative intention, and that was his conclusion there, and it is the same here. But he does use the phrase “clear advertence”, which is actually a phrase which we noticed in an English case which we found where the same problem arose – no transitional provision, et cetera, and we have footnoted it in our reply. It is an unreported English case and it is called R v C. It was in the nature I think of an interlocutory appeal and again reference made to “no advertence to”. But here the point of no advertence becomes even stronger when one understands the first part of subsection (2) and the fact that it confers something upon a person who can prosecute.
EDELMAN J: Mr Holdenson, whether one speaks in terms of procedure or substance or the principle of legality, do you accept that there is, in Justice Gordon’s words, a speck of presumption or a spectrum of force which presumption might have, ranging from situations where the proof of a past act or thing would have a very dramatic effect on a person’s rights to those where the proof of a past act or thing would have a very minor effect on a person’s rights, and the interpretive force might depend upon the effect that the proof has.
MR HOLDENSON: Yes, and that is consistent with the approach of – the answer to your question is yes, albeit the word “spectrum” is not a word I recall in this area of case law. But, having said that, it might be said that the judgment of Chief Justice Spigelman in Lodhi does make it clear that there are arguments, some of them competing arguments, and of varying strengths depending upon what it is that is the subject of the amending or repealing statute.
In that case it might well have been particularly clear in circumstances where it has been described as an ex post facto law actually altered the elements of the offence which was the subject of prosecution in that case. That is why we spent so much time in our written documents attempting to make good the submission that what has occurred here - the effect of section 80AF is to alter what needs to be proven by extending the period of operation of the offence, which is no different from creating an offence for ‑ ‑ ‑
EDELMAN J: But on any view, Mr Holdenson, it does that. The only question here is whether it does that once the prosecution has already begun, once a person has already been arraigned, whether the force of the section really applied even to circumstances where the game has already started.
MR HOLDENSON: Well, having had pointed out to me what might be said to be the proper construction of (1)(a) and the opening lines of subsection (2), our answer to that is clear and our alternative answer might be said to be what it is we have set out in writing in much detail and perhaps in hindsight too much detail.
I might say that keeping in mind the manner in which the court below decided these grounds against us and keeping in mind what has been put against us in the documents, we certainly determined that we had absolutely no choice but to adopt that approach.
Now, be that as it may, do I understand – not that I should be asking the Court questions – do I understand that the Court might well not be terribly assisted were I to take the Court through ‑ ‑ ‑
KEANE J: Can I say if – I take it we are about paragraph 14 of your outline?
MR HOLDENSON: Let me just check the outline. I have certainly got through 6, 7 could be expressed – reformulated not by reference to rights or immunities, but by potential liability for an offence contrary to section 81, and then we set out the chronology. We are down to 14. I think 14 is probably, at least (a) and (b), common ground. We cannot find anything anywhere and so our submission is there is nothing anywhere which makes 80AF apply.
So, then at the authorities – the question arises as to whether or not the Court would be assisted by me taking your Honours through any of those passages - perhaps not. Victrawl of course adds nothing to the analysis save and except it accepts as correct and proceeds on the basis of, in those passages there cited, what was decided in Rodway, and there is a passage in Rodway of course where it draws attention to - maybe at the end of the day – and perhaps this is the point your Honour Justice Gordon made to me and perhaps Justice Edelman as well by reference to your Honour’s question - what was said in Rodway about Newell, and perhaps really that was a particular sort of procedure. There is a passage in Rodway to that effect - one of those passages cited.
Section 30(1) provides the alternative route. We have covered that. We rely of course with respect to section 30 on those passages which speak of rights or liabilities. We talk about right and immunity or liability for conviction. So it is right or liability. Of course the key word in the concluding part of subsection (1), as it was in section 8 of the Acts Interpretation Act (Cth) in Lodhi, it is about “and any such legal proceeding may be continued” - “continued” assumes something already existing which can continue.
So, paragraph 18 is where we deal with an argument that perhaps need not really, at the end of the day, now be dealt with, about whether or not section 80AF is something which can be described as merely procedural. We looked at the authorities in our reply, admittedly in part choice of law - but when one reads that they are not solely based on choice of law principles.
KEANE J: The difficulty with that approach is that it assumes a strict and clear dichotomy between procedural and substantive rules. So, the focus of attention becomes upon whether a particular provision is procedural or substantive and its character in that regard.
MR HOLDENSON: Yes.
KEANE J: The problem with the dichotomy, as we can see in a case like this, is that a statute - or the particular provision‑ may be difficult to characterise as clearly one or the other. The dichotomy is not clear. So, we are left in a situation where one asks is it really worthwhile wrestling with this question of characterisation – procedural or substantive – in order to go on to address the question what does this statute mean. Is it not more fruitful to look at the statute itself and see if it tells you what it means?
MR HOLDENSON: Yes. The starting point is the statute.
EDELMAN J: That would be particularly so, Mr Holdenson, in circumstances where the procedural substantive distinction in this area seems to be relied upon really for the same purpose that a principle of legality would be relied upon, which is to say that the more fundamental or important a right that is affected and the more that the right is removed, then the more likely it is that Parliament had not intended an effect that dramatic.
MR HOLDENSON: Yes.
GORDON J: Just to complicate it, another way of looking at it may be in the context of looking to see the injustice which seems an odd way of putting it by reference to the appellant in this case, given the convictions for charges 1 to 3. But, if you stop and think about what is, in effect, the effect of the application of section 80AF, then in colloquial terms, it is changing the rules of the game. But changing the rules of the game where the benefit of the charges being laid and the prosecution commenced - or no later having the trial having been commenced – he was entitled to take the benefit of the uncertainty.
MR HOLDENSON: Yes, and that is the point where I started, by taking your Honours through counts 7 and 8 and I said if a trial had been conducted that afternoon, that day, this is what would have happened. The Crown would have been required to, and if they could not, acquit or acquittal.
GORDON J: But that says nothing about the beneficial need for section 80AF. It just reinforces arguably the construction - and also the way in which you might look at it in terms of the rules of law or legality it reinforces, I think, the way Justice Keane put it to you, this dichotomy between procedural and substantive becomes really quite arid.
MR HOLDENSON: Just on one of the points your Honour made, we say that when your Honours analyse it, when the Court analyses the statute here, it will end up being a little like it was in Lodhi where the Crown in Lodhi - or should I say then counsel who appeared for the Attorney, Mr Burmester, submitted - and this is set out in paragraph 36 of the judgment of Chief Justice Spigelman:
the purpose of the legislative scheme was to clarify that, in prosecutions for terrorist offences, the prosecution was not required to identify a particular terrorist act. That purpose, he submitted, is best advanced by not confining the retrospective application of the amendments to offences in respect of which proceedings have not been commenced.
That argument was rejected in the sense that that certainly identified the mischief at which the legislative amendments were directed, that is, that was the purpose for which the amendments were made, but that does not, when one engages in the substantive procedural, or merely procedural, that did not there get the Crown over the line with respect to the question of statutory construction which was before that court. Mere identification of context or purpose or mischief – sorry, mere identification of mischief or purpose is not such as to have the statute construed in such a manner as to affect the situation where – I think the analogy your Honour used was “the game had commenced”.
GORDON J: Chief Justice Spigelman puts it in better terms, as usual ‑ ‑ ‑
MR HOLDENSON: He would.
GORDON J: ‑ ‑ ‑ in paragraph 48 where his Honour talks about the fact that:
Parliament is “prima facie expected to respect” the principle that a statute will not retrospectively alter a criminal offence where a trial has commenced.
MR HOLDENSON: That was paragraph?
GORDON J: Paragraphs 48 and 49, by reference to what Justice Isaacs had said in Re Yates.
MR HOLDENSON: Yes. In paragraph 50, first by reference to Justice Dixon in Newell, by reading down the amending provision in Newell which had been previously described in paragraphs 44 to 47, and at the end of paragraph 50, following on from what your Honour Justice Gordon said:
In my opinion, the principles of the law of statutory interpretation, particularly the clear statement principle, lead to the result that that interpretation should be adopted. The Parliament has not indicated an intention to achieve that result with sufficient clarity.
GLEESON J: Mr Holdenson, correct me if I am wrong but I think that your ultimate point is not that the trial commenced before 1 December, it is that the trial commenced before the prosecution sought to rely on section 80AF. Is that fair?
MR HOLDENSON: Well, the trial commenced no later than 29 November. Section 80AF came into force on 1 December, so the trial had commenced at a point in time prior to section 80AF coming into force.
GLEESON J: But that does not matter. I think, on your case, the problem is that section 80AF was not invoked before the trial commenced.
MR HOLDENSON: Correct, it was not invoked before the trial commenced, whenever that be, but certainly no later than 29 November. That is correct.
GLEESON J: But the fact that the Act commenced three days after the trial commenced really has no significance ultimately for your argument. Your argument is that if the prosecutor is to invoke 80AF he needs to do that before the trial commences.
MR HOLDENSON: Yes, absolutely. So I think I have got to the end of the oral submissions, at least the – I probably do not need to deal with paragraph 19 in the sense that we have dealt with that in writing, in any event. Paragraph 20 we are focused on, of course in this case, three convictions, 6, 7 and 13. If section 80AF did not apply the three convictions are set aside. We have noticed in the respondent’s documents that they do not push for a retrial, post‑R v A1;A2, that means that they are accepting that there should be verdicts of acquittal entered on those three counts.
If we needed any additional arguments in that regard, we would be putting the submissions that the evidence adduced at trial in support of those three counts, as they became, 6, 7 and 13, was not relevantly sufficiently certain as to when the subject offending acts were committed to enable the jury to convict.
But there is actually something else to be said. In circumstances where the Crown recognised – at least by 5 February 2019 – with respect to what became counts 6 and 7, and by 19 February 2019, when the new count 13 was amended, what the Crown recognised – that is of course why they made application to amend the indictment by reference to section 80AF – the precondition of course being uncertainty – the Crown ought not be given a further opportunity to do what they could not do and recognised that they could not do, and the evidence indicates that they could never do it in the trial below by ordering a retrial.
Another point - perhaps at this stage I should briefly deal with it – it is made reference to in the written documents against us. Our predecessor, namely defence counsel at trial, did not oppose the Crown’s reliance on section 80AF. Two points can be made about that. Any acquiescence by him in that regard can have absolutely no bearing on the question of construction which arises in this case, which concerns the operation and effect of section 80AF, and its application to this appellant’s trial.
If need be, I would rely upon that most important passage - something which we all should – practitioners – keep in mind - the passage in the judgment of his Honour Justice Menzies, all those years ago in Pemble v the Queen (1971) 124 CLR 107 at 133 – defence counsel cannot concede a question of law to the prejudice of an accused person.
That then leaves me with one further matter to deal with, and it is only dealt with cryptically in the oral submissions in paragraph 20, where your Honours will see we make reference to the written submissions at paragraphs 38 to 41. It is referable to – should we succeed on this appeal – the consequential orders. We set them out, of course, in our written submissions in paragraph 36, which starts towards the foot of page 13, paragraph a is obvious – appeal allowed. Paragraph b is to have the appeal to the court below allowed on – with respect to convictions 6, 7 and 13.
At paragraph c, on the next page – I perhaps should explain. Your Honours will recall that in the court below, the appellant succeeded in having one conviction set aside and a verdict of acquittal re‑entered. That necessitated the court below resentencing the appellant to a lesser sentence. The nature of the sentence imposed below was a sentence of the very same nature as that imposed by the learned sentencing judge in the District Court – an aggregate sentence.
So, the aggregate sentence imposed by the court below was in respect of counts 1, 2, 3 and the three counts we challenge here – the three convictions – 6, 7 and 13. On this hypothesis, 6, 7 and 13 – those convictions are set aside. It means the aggregate sentence has to be set aside, but one has to be careful, and the way in which we have expressed paragraph c is to ensure this does not occur, that one does not set aside the sentence below and find there being a revival of the sentence imposed by the District Court.
So, we were very cautious and that is why we set out paragraph c as we did – so as to ensure, by a slip, we did not get a sentence higher than we had even after we had partially succeeded in the court below. That is why we have set out paragraph c and, of course, the matter would need to be remitted for resentence on counts 1, 2 and 3 – which would, again, presumably be an aggregate sentence – this time confined to 1, 2, 3. Having got to that stage, that gets me to paragraph 20 of those oral submissions.
KEANE J: Thanks, Mr Holdenson. Yes, Mr Kell.
MR KELL: Thank you, your Honours. Given what has fallen from the Court in exchanges, I will try to focus on the matters that have arisen. We, obviously, rely on the written submissions in total and they set out what we say about matters such as whether it is a procedural law, and so on. So, what I say now is not intended to detract from any of that, but I will not necessarily have to go through all of that. Can I start with the question that your Honour Justice Keane raised and which was the subject of some exchanges as to whether, in effect, section 80AF can be invoked or can apply after a trial has commenced?
KEANE J: After a trial, if you like, or a prosecution.
MR KELL: Yes.
KEANE J: “Prosecution” being the language of the section.
MR KELL: Yes. This is in the topic of looking at the text of the provision and whether it looks – as a starting point. So, we say, that section 80AF is to be understood as more than just an authority to prosecute and, also, that the indications given by the section and the extrinsic material indicate that it can have and is intended to have continuing application during a trial.
Can I go, first, to an indication in the extrinsic material just to draw it to your Honours’ attention and then I will go back to the text itself. So, in the respondent’s book of further materials, there is the departmental review – the discussion paper – which starts at page 12 – this is the Department of Justice document. That, relevantly, at page 15, paragraph 6.3, deals with “Prosecuting and defending historic child sexual assault offences”. There is reference to, on page 16 – and I will come back to some these – the case of MJ – then at page 17 to Gilson v The Queen, which we refer to and rely upon in the written submissions. But, at paragraph 6.11, on page 17, it is noted that:
It is common that during a trial the dates of the alleged offence will be refined or significantly changed.
So, there is an indication there that the problem which Parliament is – ultimately deals with by section 80AF is a problem that can manifest during the course of the trial so it is more than ‑ ‑ ‑
EDELMAN J: Mr Kell, that is because – in almost every case, but perhaps not every case – there is uncertainty as to the period when the conduct is alleged to have occurred. It would be very rare in situations such as those contemplated in 6.11 that the complainant would have expressed the complaint with certainty as to the period when the alleged offences occurred.
MR KELL: Yes. That is so, but the uncertainty, which is a requirement of the section, is something that can become apparent during the trial, as the extrinsic material shows.
KEANE J: The section does not tell us whose uncertainty is being discussed but you do get an indication from the second reading speech that the uncertainty is the uncertainty on the part of the prosecution in the Attorney‑General’s speech to the Parliament where he says:
This can be a problem for the prosecution where it is not clear which offence should apply. Section 80AF will address this. It will ensure that the prosecution can rely on whichever offence carries the lesser maximum penalty, and can rely on this offence in relation to the entirety of the period.
That is after saying that:
the bill makes three procedural reforms to facilitate prosecutions for child sexual offences. Schedule 1 inserts a new section 80AF to cover the complexities that currently arise for the prosecution -
So, it looks like it is addressing the problems of the prosecution in terms of uncertainty and then provides the prosecution with a solution. Do you say that, when section 80AF (1)(a) speaks of:
it is uncertain as to when during a period conduct is alleged to have occurred -
do you say that that uncertainty is speaking of uncertainty that arises in some general way at the trial?
MR KELL: It can arise at the trial.
KEANE J: If it arises at the trial, can it arise at the trial after the Crown case has concluded?
MR KELL: Technically, it may arise if it arises during the trial, as recognised in the extrinsic material – if the uncertainty arises then rather than persists, it will typically arise from the evidence including cross‑examination of the complainant, rather than as matters in the defence case, because it is ‑ ‑ ‑
STEWARD J: In such a case – just to be clear – 80AF is not a perfect solution for the prosecution if the trial has started. You will need to get through section 20.
MR KELL: Yes, that is right.
STEWARD J: Of course, if it turns up very late in the trial, the likelihood of leave being granted under section 20 will be relatively low than if it had occurred at the start of the trial.
MR KELL: Yes.
KEANE J: But does not section 80AF bind the trial judge?
MR KELL: Section 80AF ‑ ‑ ‑
KEANE J: How does a trial judge exercise a discretion contrary to the law of the land in section 80AF(2)?
MR KELL: So, what has happened in the present case is that there is an application on two occasions to an amended indictment for the express purpose of taking advantage of section 80AF.
STEWARD J: Well, one possible answer to Justice Keane’s question is that 80AF really says nothing about the form of the indictment which would need to be amended. The indictment refers to the crimes that are alleged; 80AF then bites on howsoever the crimes are then pleaded in the indictment. So, a judge may retain a residual discretion in relation to giving leave to amend a crime in the indictment in the face of 80AF.
MR KELL: Yes, and in circumstances where section 20, which provides for a Lee requirement – either consent of an accused or leave of the trial judge is required – if the matter is contested and leave is refused, that is to say the indictment is not amended, then that is the indictment on which – that is the indictment in those circumstances on which the matter will proceed. So, if I just go back to the temporal indications in the text as well ‑ ‑ ‑
GORDON J: Just before you get to the text.
MR KELL: Yes?
GORDON J: The opening line of 6.11 in the discussion paper is a reference, is it not, not to a changing of the offence charge but the particulars of the particular offence? In other words, it is not suggesting that there is an amendment by the substitution along section 20 lines that were put to you by Justice Steward, it is dealing with the particulars of the particular offence which is on the indictment.
MR KELL: I think so. But, your Honour, just dropping down to the second – so within the same paragraph on page 17 of the respondent’s further material – it leads up to:
The prosecution can make an application to amend the indictment ‑ ‑ ‑
GORDON J: It is a different point, I think. Well, you say it is the same.
MR KELL: Yes – sorry. Contextually, we read that as flowing on from the same paragraph as the sentences above.
GORDON J: Yes, I see.
MR KELL: Noting that:
this requires either leave of the court or consent of the defence.
In this case, there was no – leave was granted. There was no opposition. That might not be the case in other matters, depending on the approach taken.
GORDON J: Sorry, I took you away from the textual matters of section 80AF.
MR KELL: If one looks at the text, the section – section 80AF(1) talks about:
This section applies –
That is a reference to – and if:
it is uncertain –
et cetera - we say that is a reference that can operate during the course of a trial post‑arraignment, that that uncertainty can manifest then.
KEANE J: Is it uncertainty that manifests itself to the prosecution or is it – it must, must it not? It must be that, must it not? It cannot be some uncertainty that is just there as an abstraction floating over the court room. Someone must be affected by this uncertainty.
MR KELL: Well, what it leads to is the – the provisions in subsection (2).
KEANE J: Right.
MR KELL: As in this case there was an express application to amend and indictment to rely upon what was now the new provision, to bring it in line with the new provision in section 80AF, but if one looks ‑ ‑ ‑
EDELMAN J: Mr Kell, is your submission really that section 80AF read as a whole ‑ section 80AF(1)(a) contains an implication as though the section said it is uncertain or becomes uncertain during the trial as to when a period and so on?
MR KELL: Or continues to be uncertain, yes. But if one looks at ‑ ‑ ‑
EDELMAN J: Well, if it is uncertain then it does not matter if it continues to be uncertain.
MR KELL: Yes.
EDELMAN J: The only extension that you need is that it has to be implied as within section 80AF(1) that the uncertainty could also become uncertain during the trial - in other words, in circumstances where the prosecution was certain before the trial commenced, and so section 80AF did not apply, the prosecution may rely upon section 80AF if there is an uncertainty that subsequently arises or if it becomes uncertain.
MR KELL: Yes, subject to – it may not be an implication as much as it is on one sense a natural reading of the language of the section applies. So, it is talking about a provision that has application and force, and that may be that it may apply during the course of a trial because the matters in the following subsections can be seen to be satisfied.
KEANE J: In terms of the natural reading, what might be said against you in relation to the suggestion that it is the natural reading is that one would not naturally read the provision as applying, for example, to the time when the Crown case is closed - one would not naturally read it as affording the Crown the opportunity then to charge a new offence. It is difficult naturally to understand the provision as intending to allow the Crown to make a case of a new offence after it has closed its case in respect of a charged offence.
MR KELL: Subject to at least two matters. The first is that the room for the operation of section 20 of the Criminal Procedure Act and the leave requirement and that that is a provision that may yet need to be tested in this area ‑ but there is a leave requirement and that leave has to be obtained from the trial judge. That was not the subject of contested argument here in any judgment.
The second point is that where section 80AF is operating in a case such as this, in one sense it is perceived unfairness – I know your Honour has not used that language in the scenario that your Honour is positing in exchange - it is contextually much less in the sense of what has happened here is that, in the initial there were just alternative charges for the different periods of time. My friend showed you that with the counts.
It was quite clear what the Crown was seeking to do and what the provisions being relied upon were, that is to say, section 81 and section 78K, and what is happening as the result of the outcome here is that those - it is important contextually and for other arguments that we raise, that the operation of section 80AF depends upon the conduct of the accused, if proved, would have constituted more than one sexual offence during the period. So, that is an important limitation of the provision which makes it different from when we come to Greenaway and the like. It relies upon that assumption that it operates only if that circumstance applies.
Going back to your Honour’s question, the perceived unfairness, that is my language, is contextually minimal if at all. It is protected including by section 20 and it is clearly what Parliament intended. The question here of course which we will come to, is whether Parliament intended this provision to operate for pending criminal proceedings which I know is at the heart of the debate.
Just on the textual and temporal considerations, we would also draw attention to section 80AF(2), the language of:
In such a case, a person may be prosecuted -
The notion that “a person may be prosecuted” is a reference to a process. So, “a person may be prosecuted” is a process. So that, again, is an indication that this is not simply a provision that has application once only at the beginning as an authority for a prosecutor.
GORDON J: Can I put one aspect of subsection (1) which might cast at least some question about that submission? It may be a reference to a process, but it may be a reference to part of the process because if you look at (c) it says:
there was no time during that period that the alleged conduct, if proven, would not have -
Each of these preconditions is looking at identifying a class of case, is it not, which might be the subject of a prosecution, that is, the laying of a charge? “Uncertainty”, which is the point Justice Keane raised with you:
no time during that period that the alleged conduct, if proven, would not have constituted –
and then (d) deals with:
a change in the law or a change in the age of the child during that period –
The age would not change, would it, during the trial. The child’s age stays the same. It is looking at the period in order to determine where you are going to lay the charge.
MR KELL: We say it does more than that from the indications that I ‑ ‑ ‑
GORDON J: It may. I understand that. But I am asking you to think about whether or not by looking at the indicia in (1)(a) to (d), there are aspects of it which would seem to support the contention that it does not apply except prospectively, although it operates retrospectively, which sounds like a tautology, but it is not.
MR KELL: Yes, subject to it can – when it applies it can apply more than just an initial authority for a prosecutor to commence proceedings. Similarly, in 80AF(2), the reference to in the introductory sentence “and in prosecuting that offence” which again is a reference to a tense which is post the initial commencement or committal of charges and the like.
GORDON J: Well, it changes the rules of the game and in prosecuting that offence two things can happen by the prosecutor. It is changing the rules of the game for the purposes of those offences which are subject to section 80AF.
MR KELL: It is clearly intended by Parliament to have that effect. The question here is – I am not telling your Honours…..but the critical question is whether it is intended to apply to a pending criminal proceeding. Could I dovetail into that sort of critical topic now and come back ‑ ‑ ‑
EDELMAN J: Yes, although, Mr Kell, I do not think there is any dispute that it does apply to a pending criminal proceeding. It is just a question of whether it applies to a pending criminal proceeding post‑arraignment or after the trial has begun.
MR KELL: Yes, and that is loose language on my part, but that is what I intended to convey. So, in that context we say a number of points, some of which are related. The first is that – considerations of text, context and purpose, so in a statutory construction exercise, support the proposition that section 80AF is intended by Parliament to apply to pending criminal proceedings and that the presumption against retrospectivity, if it applies, so assuming that there is a procedural law and substantive law dichotomy, assuming that there is a right of some sort that is affected, then that presumption applies weakly in this case and that it is shown to be rebutted.
The first point is that the right – and accepting the comments made about the limitations on procedural law, substantive right, dichotomy and the like – but the right that is “identified and claimed” by the appellant we say is more properly regarded as a claim to the benefit of a dilemma of proof arising out of the passage of time between the conduct and the trial.
It is akin to the dilemma of proof that was identified by this Court in Gilson v The Queen and which this Court in Gilson cautioned against as having the capacity to bring the law into disrepute. Perhaps I should give your Honours the page numbers of the reference.
KEANE J: While you are finding that, no one disputes the kind of dilemma that was identified in Greenaway brings the law into disrepute.
MR KELL: Yes.
KEANE J: That is why Parliament changed it.
MR KELL: Yes.
KEANE J: A number of cases occurred where, undoubtedly, the consequence in Greenaway applied. Parliament changed that. The issue for us is when that change takes effect. No one said all those people who got acquitted and walked in relation to these offences should now be retried, or something like that. That would be monstrous. No one would imagine that for a minute.
MR KELL: Yes.
KEANE J: So, the question is just when did Parliament draw the line, and the question is did Parliament draw the line in respect of trials that commenced before the statute commenced or did Parliament intend to change the law in relation to those trials, and to change the basis on which current trials were to be conducted?
MR KELL: Yes. Just dovetailing into the point there your Honour made – sorry, that your Honour raised with me - Parliament, we say, should be taken to have accepted that the mischief that is addressed by section 80AF is comparable to that that is addressed in, or identified in, Gilson – sorry, the mischief to be addressed by section 80AF is comparable in nature to that that was identified in Gilson, the problem identified in Gilson, and one can see that the drafting of the provision is intended, in effect, to implement a version of the rule in Gilson – or to replicate the formula in Gilson where the dilemma of proof has the situation where ultimately what happens is resolved by applying the offence with the lowest penalty in its application in child sexual offence cases a period of uncertainty, à la cases like MJ.
But the effect of the appellant’s suggested construction really must be that the word “applies” in section 80AF, which – 80AF(1), rather – “This section applies” is not to be – is to be read down, is not to be understood as intending to apply the section to existing criminal proceedings.
EDELMAN J: Mr Kell, I do not think it is reading down the section. I think the simple question is, is the section entirely ambulatory or not? There is no necessary reading down to read the section as saying well, it is only ambulatory up to the point that the prosecution occurs, in the same way as I suppose you would say there is no reading down of the section or reading up of the section to say that the section applies beyond that point.
MR KELL: Well, it may be a matter of language on my part. But if section 80AF – in one sense – subsection (1) is a legislative indication or edict that this section has operation, that it applies in those specified circumstances and, as indicated, those specified circumstances arose during the trial of Mr Stephens, which is why we are here - so there is a question of – it is an indication. It is in general terms without qualification that this section applies.
But what I was leading into was that the submission or position of the appellant necessarily amounts to – this is not by way of criticism, but the argument against this provision having application to a pending existing trial is that Parliament is taken to have intended that the problem of proof – which it identified and which is described in Gilson and by reference to the departmental review as being a problem that is, in effect, apt to bring the law into disrepute – is something that can continue to manifest in pending proceedings, which would have the consequence, we say, of frustrating the clear statutory purpose.
That is an important indication, clearly, we say, as to why when one looks to what Parliament is taken to have intended, that in having regard to the important context here, the nature of the identified right – which we say is very different from an ex post facto law and the type of changing elements of offence that was present in Lodhi – that one would be loath to attribute to Parliament an intention to allow that identified problem that could bring the law into disrepute to continue in any proceedings after this section is introduced.
KEANE J: That might be a convenient time for the Court to take its morning break, Mr Kell.
MR KELL: Thank you, your Honour.
KEANE J: The Court will adjourn for 15 minutes.
AT 11.16 AM SHORT ADJOURNMENT
KEANE J: Yes, Mr Kell.
MR KELL: Thank you, your Honours. Your Honours, just before the break, I was dealing with the reasons why we say considerations of text, context and purpose support the proposition that 80AF was intended to apply to pending current proceedings including proceedings of this type where the trial had begun – and I had referred to the considerations arising from Gilson – and that it would be inherently unlikely that Parliament would be taken to intend to allow the identified problem that would be apt to bring law into disrepute to persist.
Related to that point is what we say about the presumption against retrospectivity having weak – applying only weakly in the present case. Some of the considerations overlap but can I just deal with that briefly. We say that the presumption – if it applies – so, if one gets through the procedural substantive law dichotomy – if it has application that in this particular case, in contrast to Lodhi, the presumption has a relatively weak application and there are probably four reasons which I can state shortly.
The first is that the present context is quite different from cases such as Newell and Lodhi, in which the strength of the presumption against retrospectivity might be regarded as being at its apex. Those were both cases involving what – unquestionably long‑standing and fundamental common law rights on the one hand, and in Newell, the right to a trial by jury and unanimity of verdict was seen by this Court as being inseparable from that right. Lodhi of course involved an ex post facto law that altered the elements of a criminal offence – and raising concerns of the type identified in Polyukhovich and the like.
Consistently with what we have previously submitted that the “right” – in quotation marks – claimed by the appellant here – if it exists, does not exist in the abstract, but if it is something in the nature of affecting a right, it is, we say, at most peripheral to other recognised rights such as a right not to be convicted for conduct that was not an offence at the time it was committed.
But, thirdly – and by contract to cases such as Lodhi – section 80AF does not produce an outcome in which an accused can be convicted for conduct that was not criminal – was not an offence – if proved, at the time it was committed. This is a necessary operation of section 80AF(1)(c). It proceeds on the necessary basis that:
there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence -
and so, contextually, that makes a case such as this quite different from Lodhi, et cetera.
Fourthly – and, similarly, by contrast to Lodhi – section 80AF does not produce an outcome in which an accused can be convicted for conduct under an offence that is factually established not to have been in force at the time of the conduct. We say that section 80AF is not shown to infringe or negative a right that has been vested in the appellant because it is confined in its operation to situations identified by section 80AF(1)(c) where the underlying conduct it proved would necessarily establish the elements of any offence applicable to the offending conduct.
So, both offences that were potentially applicable during the charge period – in the operation of section 80AF and in contrast to Greenaway – the underlying conduct must be capable of being proved – must be able to be proved for the elements of each of the potentially applicable offences. We say these are important matters that indicate that the presumption – if it applies – applies here relatively weakly.
In our written submissions we deal, at paragraphs 34 to 36, with Greenaway and we distinguish it by reference to the decision in MJ v The Queen [2013] NSWCCA 250 at paragraph 55 – and that is the joint book of authorities at page 1008. We make clear that MJ indicates that Greenaway stands only for the proposition that where there is a period of uncertainty in which multiple offence‑creating provisions potentially apply to conduct, it is a miscarriage of justice where a verdict of guilty for one potentially applicable offence does not indicate or necessarily satisfy the essential factual ingredients for the other potentially applicable offence. It does not indicate that those were established.
That is not the case in the scenario arising under section 80AF(1) because of subsection (c). So, it restricts the application of the provision to those circumstances where proof of the offending conduct will always be sufficient to prove an offence under either the former provision or the later provision.
Your Honours, the matters in which the Crown relies upon and sets out in detail supported by authority are in the written submissions. Unless there are particular questions arising, I am content to rely upon that and the oral submissions that have been made.
KEANE J: Did you have anything that you wished to say in relation to Mr Holdenson’s submissions in relation to the orders the Court might make if the Court is minded to allow the appeal?
MR KELL: No.
KEANE J: Very well. Thanks, Mr Kell. Yes, Mr Holdenson, anything in reply?
MR HOLDENSON: Two points in reply. Our friend made reference to the decision of this Court back in 1936, in Newell (1936) 55 CLR 707, and said that Newell was concerned merely with trial by jury. It is our submission that that is not a correct characterisation or description of that case, as is made clear in two passages in that case, first of all in the joint book of authorities, authority 17 at page 600 where, at page 712, at about point 4 on the page, in the judgment of the then Chief Justice, Chief Justice Latham - indeed, within the last six lines of his judgment - he describes it as:
the right to have only the verdict of the full twelve was an essential part of the right to trial by jury which the accused had before the amendment was made. It is not merely a procedural matter.
At page 713, in the judgment of his Honour Justice Evatt, in the very middle of the page, it reads:
unanimity in criminal issues has been regarded as an essential and inseparable part of that right –
that right being trial by jury:
not a subordinate or merely procedural aspect of it -
If – and it depends upon the permutations and combinations – some of our submissions fail and are not accepted then we would proceed by reference ‑ ‑ ‑
KEANE J: Sorry, Mr Holdenson, do you rely as well upon what Justice Dixon said in the last six lines on page 712?
MR HOLDENSON: Yes. That is the reading down.
KEANE J: Well.
MR HOLDENSON: Of 712.
KEANE J: It is not a reading down, it is just reading. It is just reading the statute:
When it says this this should be so “on the trial of any criminal issue,” should these general words be understood as applying to a trial already begun . . . in my opinion they should not. They should be taken to mean on the trial of any criminal issue joined after the commencement of the Act.
MR HOLDENSON: Yes, and then the next sentence also:
They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict.
So, we do rely on all three passages, and I think that passage to which your Honour has just taken me at the foot of 712 to the head of 713 is expressly – and, yes, it is – and clearly cited at paragraph 15 of our oral submissions.
Now, it gets a little complex because of the permutations and combinations that might, depending on the Court’s holdings and its reasoning – but we build on those passages in Rodway (1990) 169 CLR 515, Rodway being case 19 in the joint book of authorities at page 830. This is something to which I made reference a little earlier today, I think, in discussion with your Honour Justice Gordon at page 520. Perhaps I should read it in context. At point 3:
The citation from Republic of Costa Rica v. Erlanger may even be too wide were it not for the qualification that no injustice should be done, since there is at least one case in which a vested right in a particular procedure, or something very like it, appears to have been recognized. In Newell v. The King –
and then, for the remainder of page 520, passages referred to from Newell. But at the very foot of the page, indeed the last five lines of 520:
However, all members of the Court expressed themselves to be in agreement and, notwithstanding the manner in which Latham C.J. and Evatt J. expressed themselves, what appears to have been important was that upon the commencement of his trial the accused had joined issue with the Crown and had placed himself in jeopardy of conviction upon the unanimous verdict of twelve men, not a majority of ten. It was in those narrow circumstances inappropriate to give the Jury Act a retrospective operation by applying it to a trial already begun.
Now, why I take the Court to those passage is this. The right or immunity, as I described the effect of the drafting of that 29 November indictment and the arraignment of the then accused on it, that right or immunity, which could be reformulated to speak in terms of a liability for conviction, follows from those passages.
What was negated or eliminated by the application of section 80AF to the trial below was akin to those passages to which I have drawn attention from Newell, and in Rodway referable to Newell, about the effect of the accused having joined issue with the Crown and placed himself in jeopardy of conviction - let us leave out the words of Rodway, “upon the unanimous verdict of twelve men, not a majority of ten”, but the requirement of the Crown proving beyond reasonable doubt that the act occurred on or before 7 June or, alternatively, on or after 8 June.
The second matter in reply is my friend’s reliance upon the decision of the New South Wales Court of Criminal Appeal in MJ. We make two points about MJ. As is apparent from the judgments in MJ, the New South Wales Court of Criminal appeal determined not to follow the decision of the West Australian Court of Criminal Appeal in Kailis – a case which we have cited within our documents and, indeed, it is – no, it is not one of the cases in the joint book of authorities, but we have cited it within the West Australian Reports and in the Australian Criminal Reports, albeit you will need the bound volume to find it, not what is on a computer.
The other point to be made is that in MJ, the offence within the expanded - my word - expanded or enlarged count, was one different from what you have in the instant case of section 81, indecent assault, section 78K, intercourse. In MJ, on each side of the date, the elements were the same of the statutory offence. So, in any event, MJ is distinguishable and as was made clear, in any event, as I quickly read paragraph 55 of the judgment in MJ, that the wording of section 81 is not sufficient, clearly, to allege an offence contrary to section 78K which has to be right when 81 is about assaults and 78K is about intercourse.
They are the two or three matters in reply, subject to the Court.
KEANE J: Thanks Mr Holdenson. The Court will consider its decision in relation to this matter.
GORDON J: This was the last time that Justice Keane will sit to hear a Full Court appeal as a Justice of the High Court. There will, of course, be other occasions closer to his retirement to reflect on the considerable contributions he has made to the Court for more than nine years. The four junior Justices, who have the privilege of being on the Bench today, thought it important to mark this significant occasion to acknowledge his contributions to the Court and to thank him for being what we might describe as our true and humble mensch.
KEANE J: Thank you, Justice Gordon. That came as something of a surprise, but it is a very pleasant surprise, and I appreciate it very much.
The Court will now adjourn to Friday, 17 June at 9.30 am.
AT 11.47 AM THE MATTER WAS ADJOURNED
2
4
0