Wilson v Director of Public Prosecutions (NSW)

[2017] NSWCA 128

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128

Hearing dates:

18 May 2017

Decision date:

06 June 2017

Before:

Bathurst CJ [1];
Basten JA [2];
Meagher JA [18]

Decision:

Appeal dismissed.

Catchwords:

STATUTES – Acts of Parliament – operation and effect of statues – where criminal offence under repealed provision preserved by Interpretation Act 1986 (NSW), s 30 – where in repealed provision, by Crimes Act 1900 (NSW), s 580F(3), reference to “penal servitude” taken to be reference to “imprisonment” – whether reference to “imprisonment” made offence under repealed provision a “serious indictable offence” to which Crimes Act, s 316 capable of applying

 

CRIMINAL LAW – general matters – where common law offence of misprision of felony abolished and statutory concealment offence created – where appellant charged under Crimes Act 1900 (NSW), s 316(1) with failing to bring material information to attention of police concerning offence under Crimes Act, s 81 alleged to have been committed before that section repealed in 1984 - whether Crimes Act, s 316 capable of applying to that offence in respect of non-disclosure of information in 2004-2006

  WORDS & PHRASES – “serious indictable offence” – “penal servitude” – “imprisonment”

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98
Crimes Act 1900 (NSW), ss 4, 9, 78K, 81, 311, 313, 316, 341, 580E, 580F, 580G
Crimes (Appeal and Review) Act 2001 (NSW), s 53
Crimes (Amendment) Act 1984 (NSW), Sch 1, item 8
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), Sch 3 [45]
Crimes (Public Justice) Amendment Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW) ss 3, 259, 260; Sch 1, Table 1, item 1, 15,
Interpretation Act 1987 (NSW), ss 5, 30(1)
Interpretation Act 1889 (UK), s 38
Supreme Court 1970 (NSW), s 101(2)
Uniform Civil Procedure Rules, r 36.16

Cases Cited:

Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27
Commissioner of Taxation v Price (2006) 2 Qd R 316; [2006] QCA 108
Maxwell v Murphy (1957) 96 CLR 261
NSW v Corbett (2007) 230 CLR 606
R v Fisher (Charles) (1969) 1 WLR 8
R v Plummer (Court of Criminal Appeal (NSW), Gleeson CJ, Lee CJ at CL and Campbell J, 12 July 1989, unrep)
Reg v Farlow [1980] 2 NSWLR 166
The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; [1998] HCA 20
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Texts Cited:

New South Wales Law Reform Commission, Review of s 316 of the Crimes Act 1900 (NSW), LRC No 93
New South Wales Law Reform Commission, Sentencing, LRC No 79
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999

Category:

Principal judgment

Parties:

Philip Wilson (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
B Walker SC with S Buchen and G Huxley (Appellant)
L Babb SC with G Harrison and B Baker (Respondent)

  Solicitors:
Iles Selley Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2016/336733

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Citation:

[2016] NSWSC 1458

Date of Decision:

14 October 2016

Before:

Schmidt J

File Number(s):

2016/76247

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant, Philip Edward Wilson, was charged with an offence under Crimes Act 1900 (NSW), s 316(1). That provision makes it an offence to fail without reasonable excuse to bring material information to police where a person knows or believes that another person has committed a “serious indictable offence”. It was alleged that between 2004 and 2006, the appellant had failed to bring material information to police relating to an indecent assault on a boy aged 10 years contrary to Crimes Act, s 81, allegedly committed in 1971 by a Catholic priest, Father Fletcher. Section 81 was repealed in 1984.

The appellant sought to have the court attendance notice quashed on the basis that it did not disclose an offence known to law because the alleged offence committed by Father Fletcher was not a “serious indictable offence”. A magistrate in the Local Court dismissed that application. An appeal from that order to a single judge of the Supreme Court was dismissed.

The appellant, by leave, appealed from that decision dismissing his appeal. The issue before the Court was whether at the time the appellant was alleged to have withheld information relevant to Father Fletcher’s alleged offence, s 81 was a “serious indictable offence” within the meaning of Crimes Act, s 4.

The Court (Meagher JA, Bathurst CJ and Basten JA agreeing) held, dismissing the application:

i.   Interpretation Act 1986 (NSW), s 30 preserved Father Fletcher’s liability under Crimes Act, s 81: [13], [48]

ii.   By application of Crimes Act, s 580F(3) any reference in a statutory provision to “penal servitude” is taken to be a reference to “imprisonment”. That application extends to s 81, notwithstanding its repeal. Accordingly in 2004 and until his death in 2006 Father Fletcher was able to be convicted of the repealed offence and subject to punishment of imprisonment for 5 years: [13], [52]-[53].

iii. It follows that the offence Father Fletcher was alleged to have committed was a “serious indictable offence” at all times relevant to the commission of the offence charged under s 316(1): [15], [54].

Judgment

1. BATHURST CJ: For the reasons given by Meagher JA and the additional reasons of Basten JA, the appeal should be dismissed.

2. BASTEN JA: The appellant, Philip Edward Wilson, stands charged in the Newcastle Local Court with an offence under s 316(1) of the Crimes Act 1900 (NSW). The charge alleged a failure to disclose to police information that in 1971 another Catholic priest, James Patrick Fletcher, had committed an indecent assault on a boy then aged 10 years. The charge alleged that the appellant’s offence had been committed between 22 April 2004 and 7 January 2006, at East Maitland. (The period terminated with Mr Fletcher’s death.)

3. On 8 December 2015, the appellant sought to have the court attendance notice quashed on the basis that it did not disclose an offence known to law. On 12 February 2016, Magistrate Robert Stone, sitting in Newcastle Local Court, dismissed the application.

4. An appeal under s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) was dismissed by Schmidt J on 14 October 2016. [1] On 10 November 2016, the appellant sought leave to appeal to this Court from the dismissal of his appeal by Schmidt J. Leave was granted on 28 February 2017.

   1. Wilson v [Director] of Public Prosecutions (NSW) [2016] NSWSC 1458.

5. For the reasons given by Meagher JA and those which follow, the appeal should be dismissed with costs.

6. The procedural background and relevant provisions have been set out by Meagher JA. Although the submissions in the courts below ranged widely, in this Court they fell within a brief compass.

7. In 1971, s 81 of the Crimes Act was in the following terms:

81.   Indecent assault on male

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

8. In 1971, s 9 of the Crimes Act classified any offence punishable by penal servitude as a “felony”. There was no equivalent then to s 316 of the Crimes Act. Non-disclosure of knowledge as to the commission of a crime was a common law offence of misprision of felony. Misprision was abolished when s 316 was enacted in 1990. The scope of s 316 is broader than the common law offence.

9. Section 81 of the Crimes Act was repealed by the Crimes (Amendment) Act 1984 (NSW) and was replaced, with respect to homosexual intercourse with a male person between the ages of 10 years and 18 years, by a separate offence under a new provision, s 78K, for which a penalty of penal servitude for 10 years was fixed. That provision has since been repealed and replaced.

10. As enacted, s 316 applied to non-disclosure of information relevant to the commission of a “serious offence”. An offence under s 81 fell within the definition of that term, because the s 81 offence carried a liability to a sentence of penal servitude for 5 years. The appellant did not submit that if the elements of knowledge or belief under s 316 were satisfied after its commencement, the underlying offence could not be one which was committed before its commencement. Nor did he submit that if he had had the relevant knowledge or belief between 1990 and 1999 he could not have been charged under s 316(1).

11. In 2000, prior to the period of the charge laid against the appellant, the reference in s 316(1) to a “serious offence” was changed to a “serious indictable offence”. [2] The term “serious indictable offence” was defined to mean “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.” [3]

    2. Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) (“1999 Amendment Act”), Sch 3 [45], commencing on 1 January 2000.

    3.    1999 Amendment Act, Sch 3, [20].

12. The 1999 Amendment Act also abolished the distinction between felony and misdemeanour,[4] and provided that, in any Act, “a reference to a felony is taken to be a reference to a serious indictable offence”. [5] Further, the 1999 Amendment Act abolished the punishment of penal servitude and stated that, in any Act, “a reference to penal servitude is taken to be a reference to imprisonment.”[6]

    4. Crimes Act 1900, s 580E(1).

    5. Crimes Act, s 580E(4)(a).

    6. Crimes Act, s 580F(1) and (3).

13. It is not in dispute that Mr Fletcher could, prior to his death in January 2006, have been charged with an offence under s 81 of the Crimes Act in relation to conduct which occurred in 1971, that is before its repeal. It was also accepted that had he been so charged in 2005, the provisions of the Criminal Procedure Act 1986 (NSW) relating to indictable offences, and not to felonies, would have applied,[7] and he would have been liable to a sentence of imprisonment, not penal servitude. The question is, therefore, why the amendments in 1999 achieved these effects with respect to the operation of s 81, but did not vary its classification for the purposes of s 316(1).

    7. Criminal Procedure Act, s 259 and Sch 1, Table 1, item 1 of which expressly refers to s 81.

14. The contentions of the appellant, challenging the validity of the charge, rested on the proposition that, from the commencement of the 1999 Amendment Act, s 316, which thenceforth operated with respect to information concerning a “serious indictable offence”, no longer applied to an offence under s 81 because s 81 was not a “serious indictable offence”.

15. The change in terminology in 1990 resulted in s 81 becoming a “serious offence” for the purposes of s 316(1). In 2000 the description of the available penalty changed from penal servitude to imprisonment. Taking that change in isolation, s 81 would have remained a “serious offence” and thus covered by s 316. The replacement of the term “serious offence” by “serious indictable offence” could not be said to affect the operation of a substantive provision such as s 316. No reason was proffered to justify such a differential effect of the 1999 Amendment Act, whereby the new terminology operated universally with respect to existing and repealed offences, but not for the purposes of s 316(1) of the Crimes Act.

16. Indeed, the appellant’s construction would have absurd results. Suppose that a person committed a murder in December 1999; he or she would have then been liable to a sentence of penal servitude for life. Suppose further that the murder had been witnessed by A, and that the murderer had confessed to B in January 2000. On the appellant’s construction of s 316(1), A would be liable for failing to disclose what he or she had seen, but B would not be liable for failing to disclose the confession, because after 1 January 2000, the murderer was liable to a sentence of imprisonment for life. No principle of statutory construction would support that conclusion.

17. The appeal must be dismissed.

18. MEAGHER JA: On 17 March 2015 the appellant was charged with an offence under Crimes Act 1900 (NSW), s 316(1). During the relevant period (2004 – 2006) that sub-section provided:

316.    Concealing serious indictable offence

(1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years. [Italics added].

19. It is convenient to refer to the offence “a person has committed” as the “predicate offence”. Here that offence is indecent assault contrary to Crimes Act, s 81. A “serious indictable offence” is an indictable offence “that is punishable by imprisonment for life or for a term of 5 years or more”: Crimes Act, s 4(1). That terminology, which distinguishes between “serious” and “minor” indictable offences by reference to punishment, was introduced in 2000. To make out the offence under s 316(1) it is not necessary for the prosecution to establish that the accused knew that the predicate offence was a serious indictable offence: Crimes Act, s 313.

20. The offence under s 316(1) is itself an indictable offence which, in the absence of an election by either party to have it dealt with on indictment, is to be dealt with summarily in the Local Court: Criminal Procedure Act 1986 (NSW), ss 259(2), 260(1) and Sch 1, Table 1, Pt 3, item 15(2).

21. The proceeding for that offence was commenced in the Local Court by the issue of a court attendance notice (Criminal Procedure Act, s 172) containing the following particulars:

“Between 12:01 am on 22/04/2004 and 11:59 pm on 07/01/2006 at East Maitland.

Whereas James Patrick Fletcher in 1971 committed a serious indictable offence, namely, indecent assault of a male, aged 10 years old, Philip Edward Wilson between 22 April 2004 and 7 January 2006 at Maitland and elsewhere in the State of New South Wales, believing that James Patrick Fletcher committed that offence and knowing that he had information which might be of material assistance in securing the prosecution of James Patrick Fletcher for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the New South Wales Police Force.”

22. The single issue in this appeal is whether at the time of the alleged withholding of information the predicate offence was a “serious indictable offence” so that the condition that “a person has committed a serious indictable offence” could be satisfied. That question turns on whether the predicate offence, which before its repeal in 1984 was punishable by “penal servitude for 5 years”, was at the time of the charged conduct a “serious indictable offence” being one “punishable by imprisonment… for a term of 5 years or more” because Crimes Act, s 580F(3) requires that any Act, including a repealed provision, any reference to “penal servitude” be taken to be a reference to “imprisonment”.

The proceedings in the Local Court and on the appeal to the Supreme Court

23. Prior to the hearing of the charge in the Local Court, the appellant filed a motion seeking orders that the court attendance notice be quashed, and in the alternative, that the prosecution be permanently stayed. One of the two grounds relied on was that the appellant could not be guilty of an offence under s 316(1) because the predicate offence was not a “serious indictable offence”. That and the other arguments pressed by the appellant were rejected and his application dismissed: Director of Public Prosecutions v Wilson (Local Court (NSW), Stone LCM, 12 February 2016, unrep). As that order was interlocutory, and made in summary proceedings, the appellant had a right of appeal to a single Judge of the Supreme Court, but only on a ground involving a question of law, and by leave: Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b).

24. The appellant exercised that right. On 14 October 2016 the primary judge (Schmidt J) dismissed his appeal: Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458. In relation to the issue which is the subject of the appeal to this Court her Honour concluded at [62]:

It follows that there can be no question that the effect of s 580F(3) is that any prosecution and conviction of [Father Fletcher] after 1999 and before his death in 2006 under s 81 of the Crimes Act for his 1971 offence, would have been a conviction for a “serious indictable offence”, as defined in s 4. On such conviction [Father Fletcher] would have been liable to punishment by imprisonment for a term of 5 years. It thus also follows unarguably, that such an historical s 81 offence is one in respect of which a s 316 offence could have been committed in 2004 - 2006, as is alleged against the Archbishop, that offence falling as it does within the definition of “serious indictable offence” in s 4 of the Crimes Act.

25. The appeal to this Court under Supreme Court 1970 (NSW), s 101(2)(h) requires leave. That leave was granted by Simpson JA and Emmett AJA on 28 February 2017. The formulated ground of appeal is that the primary judge erred in failing to hold that the learned magistrate “erred in finding that the offence with which the applicant is charged is valid”. That ground is intended to raise the argument that the appellant could not be guilty of the charged offence under s 316(1) because the predicate offence is not a “serious indictable offence”.

26. An understanding of the arguments in the appeal requires that reference first be made to the various statutory provisions which those arguments must accommodate.

The relevant statutory provisions

27. In 1971, when the predicate offence is alleged to have been committed, Crimes Act, s 81 provided:

81.   Indecent assault on male

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

28. At the same time, Crimes Act, s 9 declared that an offence for which punishment of penal servitude may be awarded was, and was to be dealt with, as a “felony”.

29. Section 81 was repealed by the Crimes (Amendment) Act 1984, Sch 1, item (8).

30. Section 316 was included in the Crimes Act by Crimes (Public Justice) Amendment Act 1900 (NSW) and commenced on 25 November 1990. As originally enacted s 316(1) commenced “If a person has committed a serious offence…” [Italics added] and was otherwise in the terms set out in [18] above. A “serious” offence was defined in Crimes Act, s 311(1) to mean “an offence punishable by imprisonment or penal servitude for 5 years or more or for life”. By the insertion of Crimes Act, s 341, that amending Act also abolished a number of common law offences, including the offence of misprision of felony.

31. The NSW Law Reform Commission in its Report 93: Review of s 316 of the Crimes Act 1900 (NSW), presented in December 1999, described the background to the enactment of s 316 as follows:

2.1 Section 316 is part of a package of public justice offences which was inserted into the Crimes Act 1900 (NSW) in 1990. The purpose of the package was to create a comprehensive statement of the law relating to public justice offences which, until the enactment of the amendments, was “fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties”.

2.2 Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.

32. With effect from 1 January 2000, a number of reforms of the criminal justice and correctional systems in NSW were introduced by the enactment of three statutes. They included the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) (1999 Amendment Act), which abolished the penalty of “penal servitude” and the distinction between felonies and misdemeanours. At the same time in the Crimes Act and other legislation that Act replaced references to “penal servitude” with references to “imprisonment”, references to “felonies” with references to “serious indictable offences” and references to “misdemeanours” with references to “minor indictable offences”.

33. These amendments were principally made by the insertion of Crimes Act, ss 580E, 580F and 580G: 1999 Amendment Act, Sch 3, item [68]. Sections 580E and 580F are presently relevant. They provided:

580E.   Abolition of distinction between felony and misdemeanour

(1)    All distinctions between felony and misdemeanour are abolished.

…

(4)    Subject to the regulations, in any Act or instrument:

(a)   a reference to a felony is taken to be a reference to a serious indictable offence, and

(b)    a reference to a misdemeanour is taken to be a reference to a minor indictable offence.

…

580F.    Abolition of penal servitude

(1)   The punishment of penal servitude is abolished.

(2)   Any sentence of penal servitude that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment and is to continue in force as such for the remainder of the term for which the sentence of penal servitude would, but for this section, have continued in force.

(3)   Subject to the regulations, in any Act or instrument, a reference to penal servitude is taken to be a reference to imprisonment.

34. In addition Sch 3, item [20] inserted definitions of “serious indictable offence” and “minor indictable offence” in Crimes Act, s 4(1) and item [70] replaced “penal servitude” wherever occurring in the Crimes Act with “imprisonment”.

35. With respect to s 316(1), Sch 3, item [45] omitted “serious offence” and inserted instead “serious indictable offence”.

36. At this point reference should be made to two matters. The first concerns the term “penal servitude” as it applied at the time of these amendments. In its Report 79: Sentencing which led to these reforms, the Law Reform Commission described “penal servitude” as a “relic of past eras of sentencing” which described “distinctions that are no longer relevant to the administration of a modern correctional system”: Report 79 at [14.20]-[14.21]. That had been the position for some time. In Reg v Farlow [1980] 2 NSWLR 166 at 169 Nagle CJ at CL (Moffitt ACJ and Slattery J agreeing) observed:

The expression “penal servitude” has a different connotation now from when it was first introduced into the criminal legislation of this State and, at the present time, from a practical point of view, there is little, if any, difference between “penal servitude” and “imprisonment”.

37. The second matter concerns the general purpose of the reforms introduced by the legislation that came into effect on 1 January 2000. In the Second Reading Speech for the three bills the Minister for Corrective Services, Mr Debus, introduced them as follows (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at p 2324-2325):

… In substance, these bills are not about the creation or abolition of criminal offences. Nor are they about an increase or decrease in the maximum penalties available for such offences. These bills implement a number of reforms recommended by the NSW Law Reform Commission in its report on the law and practice of sentencing. Some of the reforms are in the nature of fixing ambiguities in pre-existing legislation and streamlining aspects of the criminal justice and correctional systems. Useful new sentencing provisions are also provided for.

38. With respect to the Crimes Legislation Amendment (Sentencing) Bill, Mr Debus said (at p 2328):

The object of this bill is to amend the Criminal Procedure Act 1986, the Crimes Act 1900 and certain other Acts so as to rationalise the provisions relating to criminal procedure, to abolish the penalty of “penal servitude” and the distinction between felonies and misdemeanours, and to make consequential amendments in connection with the enactment of the proposed Crimes (Sentencing) Procedure Act 1999 and the proposed Crimes (Administration of Sentences) Act 1999.

Discussion

39. In this Court the appellant’s argument ultimately focussed on the construction and application of s 580F(3). It is submitted that its application in relation to a repealed provision such as s 81 is limited by the circumstances for which the provision is taken to continue as if not repealed, as to which see Interpretation Act 1987 (NSW), s 30(1). Those circumstances relevantly include the prosecution, conviction and punishment of Father Fletcher for any offence under s 81 committed before its repeal, but do not extend to the characterisation of such an offence as a “serious indictable offence” for the purposes of s 316(1).

40. This argument is responsive to the reasoning supporting the respondent’s case, which prevailed in the Local Court and before the primary judge. As one might expect, that reasoning has been further refined in this Court. That refinement includes the abandonment by the respondent of any reliance upon s 580E(4) as supporting the conclusion that as at 2004 – 2006 the offence which Father Fletcher was alleged to have committed answered the description “serious indictable offence” in s 316(1).

41. A necessary pre-condition for the application of s 316(1) is that a person “has committed a serious indictable offence”. The use of the present perfect tense describes a state of affairs which has arisen and is continuing in the sense that it has not been dealt with by the offender being prosecuted to conviction or acquittal. That pre-condition is capable of being satisfied irrespective of when the predicate offence may have been committed; and that remains so whether it was committed before or after the commencement of s 316 in November 1990.

42. The section did not for that reason have any retrospective operation. It did not provide that from an earlier date the law was to be taken to have been that which it was not or have such operation in the extended sense in which that expression is used: see The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; [1998] HCA 20 at [57] (McHugh and Gummow JJ citing Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 30-31 (Jordan CJ). It does not, adopting Dixon CJ’s statement in Maxwell v Murphy (1957) 96 CLR 261 at 267 apply “to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law [has] defined by reference to the past events”. Rather s 316 imposes a liability by reference to a future event, namely a non-disclosure of information without reasonable excuse that occurs in circumstances in which the person has the requisite knowledge or belief as to the commission of the predicate offence and as to the possession of material information in relation to it. It is correct to observe that the knowledge or belief may have existed before the commencement of the section and continued, however no offence is committed, and accordingly no liability imposed, unless thereafter there is a non-disclosure without reasonable excuse.

43. The appellant accepts that the elements of the offence created by s 316 may include a predicate offence committed before it was enacted. That of course is subject to that historical offence not having been dealt with by the prosecution of criminal proceedings to a point where there has been a conviction or an acquittal (either before or after the commencement of s 316(1)) in which event any information concerning that offence either would never be or could no longer be “of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender”. The appellant also accepts that in its application to such an offence s 316 would not have any retrospective operation in the extended sense described above.

44. To be the subject of the offence created by s 316 the predicate offence must be “a serious indictable offence”. It is not necessary, however, that the person also know or believe that the predicate offence answers that description, or is categorised in that way. Thus it is the legal classification of the predicate offence as “a serious indictable offence” which engages the potential application of s 316, and it must answer that description at the time the “concealing” offence (as its heading perhaps misleadingly describes it) is alleged to have been committed. The appellant does not contend otherwise.

45. This construction of the provision is entirely consistent with its apparent object. By punishing the withholding of information, believed to be material in securing a conviction, by someone who knows or believes such an offence has been committed, the provision operates as a deterrent to people who might otherwise withhold information from the police. In doing so it furthers the more general objective that members of the public report information and beliefs about serious offences to the police so as to assist in the apprehension, prosecution and conviction of offenders.

46. Addressing the question of legal characterisation of the predicate offence in 2004, the repeal of s 81 did not, because of the application of Interpretation Act, s 30(1), have the consequence that Father Fletcher ceased to have committed the offence because criminal proceedings had not been commenced by that time: cf the position under the common law as described in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 105-106 (Dixon J).

47. Sub-section 30(1) relevantly provides:

30.   Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:

…

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

…

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

48. There being no contrary intention expressed in the Act repealing s 81 (Interpretation Act, s 30(3)), if Father Fletcher committed the predicate offence s 30 applied to preserve his liability to being prosecuted, convicted and punished “as if” s 81 had not been repealed. In R v Fisher (Charles) (1969) 1 WLR 8 at 12 the English Court of Appeal described the application in similar circumstances of Interpretation Act 1889 (UK), s 38, from which the provisions of s 30 were ultimately derived, as having the effect that “the statutory provisions providing for [the offence’s] indictment and punishment remained in force”.

49. That description was approved by the House of Lords in R v West London Stipendiary Magistrate, Ex parte Simeon [1983] 1 AC 234 at 243 (Lord Roskill) and applied by the Court of Criminal Appeal in R v Plummer (Court of Criminal Appeal (NSW), Gleeson CJ, Lee CJ at CL and Campbell J, 12 July 1989, unrep) to two counts of alleged breaches of s 81 prosecuted in 1989. See also NSW v Corbett (2007) 230 CLR 606 at [10] (Gummow J, Gleeson CJ agreeing) and Commissioner of Taxation v Price (2006) 2 Qd R 316; [2006] QCA 108 at [57]-[59] (Keane JA, McMurdo P and Holmes J agreeing).

50. The appellant does not contest these principles and accepts that before his death in 2006 Father Fletcher could have been prosecuted for an offence under s 81, notwithstanding its repeal. It follows, if it is established that Father Fletcher committed an indecent assault against PC in 1971, that in 2004 he answered the description of a person who “has committed” an offence under s 81 and who remained liable to be prosecuted for and convicted of that offence.

51. There is also no dispute that in 2004 the predicate offence under s 81 was an “indictable offence”. It was an offence which could be prosecuted on indictment: Criminal Procedure Act, s 3(1). Although s 81 was repealed in 1984 its continued operation was understood and it was listed in Sch 1, Table 1 of that Act, and remains listed in that Table. By s 5(1) an offence must be dealt with on indictment unless it is permitted or required to be dealt with summarily. The offence which Father Fletcher is alleged to have committed was not permitted or required by s 6 to be dealt with summarily. As charged it was not an offence listed in Table 1 of Sch 1 and could not be dealt with summarily because the alleged victim was 10 years old at the time of its commission.

52. It is at this point that the respondent relies on the application of s 580F(3). The analysis proceeds as follows. In relation to Father Fletcher’s 1971 conduct, s 81 is to be treated “as if” it had not been repealed. Accordingly assuming an offence was committed, s 81 continued to apply to that offence. However, by virtue of s 580F(3), in the continued application of that provision the reference to “penal servitude” is to be taken to be a reference to “imprisonment”. The words “in any Act or instrument” in s 580F(3) include an Act which has been repealed. They also include the section of an Act which has been repealed, where the operation of that section is continued by the operation of s 30: Interpretation Act, s 5(3).

53. Thus had Father Fletcher been prosecuted and convicted of the predicate offence in 2004, treating the language of s 81 as having been amended, he would have been “liable to imprisonment for 5 years”. The appellant accepts that the application of s 580F(3) on s 81, as continued by s 30(1), had that consequence.

54. The final step in the reasoning supporting the respondent’s position is that once it is accepted that s 580F(3) has this operation in relation to s 81, it necessarily follows that the offence which it is alleged Father Fletcher had committed was a “serious indictable offence”. That is because the predicate offence satisfied that defined term and accordingly that description at all times relevant to the commission of the offence charged under s 316.

55. The appellant, as I understand his argument, accepts that if s 580F(3) is applied to s 81 as continued by s 30(1), the predicate offence satisfies the definition of a “serious indictable offence”. He maintains, however, that s 580F(3) should not be given that effect or operation because to do so would make the predicate offence subject to the application of s 316 when it would not otherwise be because of the reference in s 81 to “penal servitude”.

56. This argument does not give effect to the plain words of s 316 which since 1 January 2000 have described its application by reference to the “concealing” of serious indictable offences, as that term is defined. Even if the effect of that amendment was to apply s 316 to the concealing of an offence answering that description to which it had not applied in the past (which is not this case because the s 81 offence was a “serious offence” under s 316 as originally enacted) that would not involve giving that provision any retrospective operation in either of the relevant senses.

57. Nor, if it were relevant to look at the matter more broadly, did the amendments to s 316 introduced in January 2000, when judged by reference to the punishment liable to be imposed, attach criminal consequences to the concealing of historical criminal conduct which was less serious than had been the case earlier. Before 2000 the predicate offence made Father Fletcher liable to penal servitude of up to 5 years. At that time there was no difference in substance between penal servitude and imprisonment, in each case of up to 5 years. After 2000 the predicate offence in terms made Father Fletcher liable for imprisonment of up to 5 years.

Conclusion

58. It follows that I agree with the primary judge’s conclusion that the predicate offence which it is alleged Father Fletcher had committed was at all relevant times between 2004 and 2006 a “serious indictable offence” for the purposes of Crimes Act, s 316(1).

Proposed orders

59. The appeal should be dismissed.

60. There remains the question of costs which, in an appeal brought under s 101(2)(h), are in the discretion of the Court: Civil Procedure Act 2005 (NSW), s 98. Ordinarily, costs follow the event and in this case there is no material placed before the Court which would justify the making of any other order. However in criminal matters the respondent Director does not ordinarily apply for costs orders against unsuccessful defendants and no submission in support of such an order has been made in the Director’s written and oral submissions in this Court. In these circumstances I do not propose that any costs order be made. If the respondent does seek an order for costs, that application can be made under UCPR r 36.16 within the time allowed.

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Endnotes

Amendments

06 June 2017 - [36] - Typographical error corrected

Decision last updated: 06 June 2017