Xerri v The King

[2023] HCATrans 91

[2023] HCATrans 091

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 2022

B e t w e e n -

BRIAN XERRI

Applicant

and

THE KING

Respondent

Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 JUNE 2023, AT 2.28 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR N.M. STEEL appears for the applicant.  (instructed by Ryan Payten Le)

MS H.R. ROBERTS, SC and MS E.S. JONES appear for the respondent in Canberra.  (instructed by Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Steel.

MR STEEL:   May it please the Court.  This application concerns the issue of whether a new maximum penalty ‑ ‑ ‑

KIEFEL CJ:   I am sorry, do you require an extension of time?

MR STEEL:   Yes, we do require an extension of time, your Honour.

KIEFEL CJ:   And is it opposed?

MS ROBERTS:   It is not, your Honour.

KIEFEL CJ:   It is not opposed.  You have that extension, Mr Steel.

MR STEEL:   Thank you, your Honour.

KIEFEL CJ:   Yes, please continue.

MR STEEL:   Your Honour, as I was indicating, the application concerns the issue of whether a new maximum penalty of life imprisonment has retrospective application when, at the time of the applicant’s offending, the applicable maximum penalty was 25 years’ imprisonment.  The applicant submits that an issue of general importance does arise in this matter as to how an apparent ambiguity as to whether an offence is entirely new – so that a new maximum penalty is applicable – as opposed, alternatively, to the offence being an amended, reformulated, refined and improved offence, in which case a lower maximum penalty would apply – should be addressed.

KIEFEL CJ:   Is the importance of whether or not it is an entirely new offence that, if that is the case, section 19 of the Crimes (Sentencing Procedure) Act does not apply?

MR STEEL:   That was the position that the majority took in the Court of Criminal Appeal, your Honour.  We would submit that, ultimately, it is our submission that a more appropriate way to look at the legislation is to look at the context of the legislation the other Acts that are affected – or

provisions, such as sections 19(1) and 25AA of the Crimes (Sentencing Procedure) Act that preserved section 19(1), which normally provides that where there is an increase in a maximum penalty, the penalty that applied at the time of the offence is the applicable penalty.

I am paraphrasing the section, your Honour, but looking at the context and the textual indications in terms of the legislation, it is, in the applicant’s submission, a more correct way of assessing whether the new maximum penalty of life imprisonment was intended to operate by the legislature, retrospectively or not, your Honours.

KIEFEL CJ:   Yes, I see. 

MR STEEL:   There are no clear authorities, really, that provide guidance on the issue as to whether simply by looking up whether an offence is a new offence that provisions like section 19(1) do not apply.  Every State in Australia has a similar provision, except for South Australia that has applicable case law to the same effect – in terms of a case, it is Samuels v Songaila that provides guidance in that State, your Honour.

KIEFEL CJ:   Mr Steel, we might hear from Ms Roberts now as to why a grant should not be made.

MR STEEL:   Yes, your Honour.  Thank you, your Honour.

KIEFEL CJ:   It does appear to be a question of general importance, Ms Roberts.

MS ROBERTS:   Your Honours, in terms of the way in which the question was just put by Mr Steel, we would respectfully submit that that question – that is, a question of apparent ambiguity – is not a question of general importance, in that the application of section 19 of the Crimes (Sentencing Procedure) Act turns on whether the offence is correctly characterised as a new offence or whether it is an offence for which the maximum ‑ ‑ ‑

KIEFEL CJ:   You mean it is either one thing or the other; there are not shades of grey.

MS ROBERTS:   Yes, your Honour, quite.  We would submit that there is no grey area.  It cannot be a question ‑ ‑ ‑

KIEFEL CJ:   Even if it is black and white, there may be different views about it.  I think that is acknowledged in the Court of Appeal. 

MS ROBERTS:   Yes, your Honour.  So, it is a binary question for which there can be different answers – as there were in the Court of Criminal Appeal in this case.

KIEFEL CJ:   Quite so.

MS ROBERTS:   It is, in that sense – we submit, of course, that the majority characterisation and construction of 66EA was the correct one and was approached correctly based on the argument that was put there by the applicant, which is that section 19 ought apply to the provision in terms; whereas if the offence does not involve an increase of the maximum penalty for an offence, section 19 does not, in terms, apply to 66EA – as the majority held it did not. 

In fact, there was no difference between the majority and minority on that point – that is, the result of the unassessment or characterisation of the offences new or amended.       Justice Hamill, in dissent, accepted that it was arguable a new offence was created but disagreed that that had, in fact, occurred.  On his Honour’s analysis, it was an amendment. 

KIEFEL CJ:  Do you place any reliance on what Justice Hamill said at paragraph 170, in the last sentence?  Namely, that he:

would not have found that no lesser penalty was warranted, thereby justifying the dismissal of the appeal pursuant to s 6(3) Criminal Appeal Act.

I just wondered whether section 6(3) actually permits that course.  But sufficient for us to ask you whether you rely on it, I think.

MS ROBERTS:   Your Honour, the respondent accepts that if the sentencing judge proceeded on the basis of an incorrect maximum penalty, that is an error which warrants ‑ ‑ ‑

KIEFEL CJ:   Which justifies a grant.

MS ROBERTS:   Yes, your Honour.  If I could just perhaps briefly take your Honours to the reason why we submit that the majority assessment was correct in respect to this question of new offence; that is because of the significant differences between the predecessor offence and the new offence, including as to the elements of the offence.  In particular, the current offence criminalises the maintenance of an unlawful sexual relationship, whereas the predecessor offence required proof of conduct ‑ ‑ ‑

KIEFEL CJ:   Excuse me, Ms Roberts.  Mr Steel, would you mind putting your – on mute.  Thank you.  Your paper rustling is cutting across our hearing Ms Roberts.

MR STEEL:   Thank you, your Honour.

KIEFEL CJ:   Yes, Ms Roberts.

MS ROBERTS:   The predecessor offence required proof of conduct constituting a sexual offence on three or more separate occasions.  In the current offence, the jury importantly need not be unanimous as to individual sexual acts, but the requirement for unanimity applies to jury satisfaction of the maintenance of an unlawful sexual relationship.  Subsection (2) provides that that is a relationship in which engagement in two or more unlawful sexual acts with a child over a period of time, as compared with the three.  The current offence is obviously of much broader scope, given its retrospective operation, in that it extends to an unlawful sexual relationship that existed wholly or partly even before 1999, when the predecessor offence became operative.  So, it has application in that period when there would be no predecessor offence with which to make the comparison.

It is our submission, further, that it is in that context not surprising that there was no express carveout of section 19 included section 66EA because it created a new offence with clear retrospective operation and, accordingly, there would be no question that section 19 did not apply; and, further, that the legislature had intended to apply the offence retrospectively, including its maximum penalty.  That comes, of course, from the wording of 66EA(7), which is the part of the provision which makes the offence retrospective, and we submit that the offence is the offence referred to in subsection (1) which also specifies the maximum penalty of life imprisonment.

KIEFEL CJ:   Ms Roberts, the applicant was charged under the so‑called new offence, was he not?

MS ROBERTS:   Yes, your Honour.  There is a little bit of procedural confusion referred to by his Honour Justice Hamill in his judgment, but he was ‑ ‑ ‑

KIEFEL CJ:   But he was charged under – so, if it is not a new offence, would there be a question as to whether or not the charges themselves were correct?

MS ROBERTS:   Your Honour, we would say no, because, as of 1 September 2018 ‑ ‑ ‑

KIEFEL CJ:   They applied.

MS ROBERTS:   ‑ ‑ ‑ the predecessor offence was repealed and replaced.

KIEFEL CJ:   Repealed.  Yes, I see.  So, it is a question for the purpose of sentencing whether it is regarded as a new offence.

MS ROBERTS:   Yes, your Honour, for the question – well, on the basis of the proposition put forward by the applicant that section 19 should apply, and that the life imprisonment maximum penalty should be regarded as an amendment to an existing offence, rather than directly applicable to an offence which is otherwise expressed to operate retrospectively.

Finally, perhaps in terms of textual considerations, subsection (8) of the current offence requires a court to take into account the maximum penalties applicable at the time of the offending for the individual unlawful sexual acts, which is a recognition consistent with the express indication that it is otherwise the maximum penalty prescribed for the offence that is to be applied, but in a context where there is some recognition of the seriousness of the underlying offences – including as to the time at which they were committed – in the context that this offence can be applied historically and including prior to 1999.

Your Honours, we would also point out that section 25AA of the provision, upon which the applicant relies, does not, in the respondent’s submission, have any direct impact on the question of whether section 19 has application.  What that section does, and what it was enacted to do, was to make it clear that when sentencing for historical child sexual assault offences, courts should apply sentencing principles and practices at the time of sentencing, but that that principle did not oust the operation of section 19, where section 19 otherwise applied.  So, in that sense, we say, it is, simply, derivative.  The question of whether section 19 applies is not affected by the enactment of section 25AA in the respondent’s submission.  If your Honours would just excuse me.

Those are the submissions on behalf of the respondent.

KIEFEL CJ:   Yes, thank you.  We do not need to trouble you any further, Mr Steel.  There will be a grant of special leave in this matter.  Would I be correct in thinking it would take no more than half a day?

MS ROBERTS:   We would agree with that, your Honours.

KIEFEL CJ:   Mr Steel?

MR STEEL:   We would agree with that as well, your Honours.

KIEFEL CJ:   Yes, thank you.  The Court adjourns to 10.00 am on Tuesday, 1 August 2023.

AT 2.43 PM THE MATTER WAS CONCLUDED