Stephens v The Queen - [2022] HCATrans 58

[2022] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2021

B e t w e e n -
PETER LEONARD STEPHENS
Applicant
and
THE QUEEN
Respondent

GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 1.24 PM

MR O.P. HOLDENSON, QC appears with MR J.P. O’CONNOR for the applicant. (instructed by Macedone Legal)

MR D.T. KELL, SC appears with MR M.W.R. ADAMS for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

GORDON J: Mr Kell, the Court would be assisted to hear from you first, if it may. The application for special leave to appeal raises for consideration the principles and issues addressed by Chief Justice Spigelman in Lodhi v The Queen (2006) 199 FLR 303, especially at paragraphs 22 to 56. In particular, what his Honour referred to, at paragraph 23, about there being a distinct body of case law where retrospective laws applied pending proceedings, especially criminal proceedings. Here, as I understand it, there is no factual dispute that the applicant’s criminal trial had started before section 80AF was enacted. This Court has not considered either the question of the existence of those principles, the categorisation division that his Honour drew, or the application of them, so we would be very interested to hear from you first.

MR KELL: Thank you, your Honour. Your Honour is right about ‑ that there is no issue that the trial had started at the time the provision came into force. Your Honours have seen the written submissions and what we say, generally. Could I go more specifically to the matter that your Honour has raised in terms of the application of Lodhi, if that would assist.

That arises on the assumption that, if it is applicable, the presumption against retrospectivity applies – or potentially applies – and your Honours have seen what we say and what the CCA has said about whether there is a pre‑existing right and whether there is a right that has been affected and so on. At the moment, I am just moving on to specifically look at that second proposition – that is to say, assuming that the presumption potentially applies, is it overcome here and what is the impact of Lodhi – the effect of the decision in Lodhi.

GORDON J: Especially in this case where, as I think there is no dispute, you do not have an express statement in the legislation, you have got no transitional provision, and, as I understand the reasoning of both Acting Judge of Appeal Simpson and also Justice Button, you have got no extrinsic materials that seem to assist in that analysis.

MR KELL: Yes, that is right, in the sense of there is not – you are right, there is not an express transitional provision that is a feature of this case, and I will deal…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Stephens v The Queen

Details

AGLC: Stephens v The Queen [2022] HCATrans 58
Case: [2022] HCATrans 58
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal in the matter of *Stephens v The Queen*. The applicant, Peter Leonard Stephens, sought to appeal a decision of the Court of Criminal Appeal (CCA) concerning the retrospective application of a legislative provision, section 80AF, to his criminal proceedings. The central dispute revolved around whether this provision, enacted after the commencement of the applicant's trial, applied to his case.

The legal issues before the High Court included the principles governing the retrospective application of legislation, particularly in the context of pending criminal proceedings, and whether the decision in *Lodhi v The Queen* (2006) 199 FLR 303 was correctly applied by the CCA. Specifically, the Court was asked to consider the distinct body of case law concerning retrospective laws and their application to ongoing trials, as articulated by Spigelman CJ in *Lodhi*. The Court also examined whether the CCA had correctly interpreted the scope and purpose of section 80AF, and whether its application to pending proceedings required express parliamentary intent, as suggested by the applicant.

The Court's reasoning, as indicated by the questions posed by Gordon J, focused on statutory construction and the application of established principles to the specific legislative provision. The respondent argued that *Lodhi* was distinguishable because the legislation in question did not criminalise previously lawful conduct but rather addressed a "loophole" that could bring the law into disrepute. The respondent contended that the context, mischief, and general text of section 80AF supported its immediate application to pending proceedings, even without an express transitional provision. The applicant, conversely, highlighted the practical effect of the legislation, noting that it could result in individuals being imprisoned who would otherwise have been acquitted, and questioned whether the principles from *Lodhi* required greater clarity in such circumstances.

Ultimately, the High Court granted special leave to appeal. The Court indicated that the hearing would likely take less than half a day and encouraged the parties to coordinate with the Registrar regarding the management of the matter, particularly concerning the potential for expediting the appeal if the applicant were to succeed and be serving a sentence he ought not to be.

Orders