Stephens v The Queen

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.