Stephens v The Queen

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.