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8
Court of Criminal Appeal 24 May 2007

R v MAJW

[2007] NSWCCA 145

Also reported as (2007) 171 A Crim R 407
Sexual offences
CRIMINAL LAW CRIMINAL APPEAL ACT S5A INDICTMENTS AMENDMENT OF INDICTMENT

Citation: R v MAJW [2007] NSWCCA 145
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2007
Judges: James J, Rothman J, Harrison J

Background

The respondent was tried in the District Court at Grafton on two counts of producing child pornography and thirteen counts of sexual offences against a child. A jury returned guilty verdicts on fourteen of the fifteen counts, including counts 9 through 12, which alleged aggravated sexual intercourse with a child aged 11 or 12 years while that child was under the respondent's authority.

The problem emerged after verdict. Counts 9 to 12 described the victim as "above the age of 10 years and under the age of 14 years," but the relevant version of section 66C of the Crimes Act 1900 that applied before 13 June 2003 covered children "above the age of 10 years and under the age of 16 years." The charged periods spanned both sides of that date, when legislative amendments altered both the age range and the maximum penalty. The Crown conceded the counts as drafted did not precisely match the pre-amendment statutory language.

When the matter came before District Court Judge Solomon for sentencing in March 2007, his Honour declined to proceed on counts 9 to 12, taking the view that they may not disclose offences known to law. He referred three questions of law to the Court of Criminal Appeal under section 5A of the Criminal Appeal Act 1912, deferring sentence pending determination.

  • Whether counts 9 to 12 as drafted disclosed offences known to law, given the mismatch between the age range stated in the indictment and the age range in the pre-June 2003 version of section 66C.
  • Whether the form of the indictment precluded Judge Solomon from proceeding to sentence the respondent on those counts.
  • If amendment was needed, whether the District Court had power to amend the indictment after verdict but before sentence.

Decision

The Court of Criminal Appeal answered all three referred questions in a manner that allowed the sentencing to proceed. James J delivered the principal judgment, with Rothman J and Harrison J agreeing.

On the first question, the Court found that counts 9 to 12, although imprecisely worded, did disclose offences known to law. The counts identified the conduct, the victim's approximate age, the relevant period, and the aggravating circumstance. The defect in the age range description was treated as a formal error rather than a failure to allege any essential element of the offence.

On the second question, the Court held that the defective form of the indictment did not absolutely prevent sentencing, though amendment remained the appropriate course. The court reasoned that the legislative purpose of section 66C was clearly to maintain continuous coverage of the relevant conduct across the June 2003 amendments, and it would produce an absurd result to hold that offending spanning that date could escape prosecution because the statutory language shifted at midnight.

On the third question, the Court confirmed that the District Court retained power to amend the indictment even after verdict and before sentence. Rothman J noted separately that where the charged period straddles the amendment date and the elements of the offence are otherwise the same, the appropriate penalty is the lower of those available under the pre- and post-amendment provisions, to avoid any unfairness to the convicted person.

Orders Made

• A person charged and convicted of sexual intercourse with a person of 14 years of age during a period spanning 13 June 2003, in circumstances of aggravation, may be convicted of an offence under section 66C of the Crimes Act, with the penalty being the lower of the offence available before and after 13 June 2003

Key Takeaways

  • The Court of Criminal Appeal confirmed that a count in an indictment is not necessarily void merely because it mis-states an age range, provided the essential elements of the offence are otherwise sufficiently identified and the accused is not prejudiced.
  • A conviction may stand despite a formal drafting error in an indictment where the defect does not deprive the accused of fair notice of the charge and does not affect the jury's consideration of the essential elements.
  • Under section 21 of the Criminal Procedure Act, a court retains power to amend a defective indictment after verdict but before sentence, provided no injustice results from the amendment.
  • Where an offence period spans a legislative amendment that altered both the statutory age range and the maximum penalty, Rothman J held that the sentencing court should apply the lower of the available maximum penalties.
  • Absurdity is a recognised principle of statutory construction: the Court declined to read section 66C in a way that would create an unintended gap in criminal liability at the precise moment the amending legislation took effect.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C
- Criminal Appeal Act 1912 (NSW), s 5A
- Criminal Procedure Act (NSW), ss 20, 21
- English Indictments Act 1915

Cases:
- Ex parte Ryan; re Johnson (1943) 44 SR (NSW) 12
- Griffiths v The Queen (1977) 137 CLR 293
- Heymann v The Queen (1873) 8 LRQB 102
- John L Proprietary Ltd v Attorney General for NSW (1987) 163 CLR 508
- Johnson v Miller (1937) 59 CLR 467
- Kingswell v The Queen (1985) 159 CLR 264
- Maxwell v The Queen (1996) 184 CLR 501
- Project Blue Sky v ABA (1998) 194 CLR 355
- R v Aspinall and Ors (1876) 2 QBD 48
- R v Burns (1920) 20 SR (NSW) 351
- R v Dossi (1918) 13 Cr App Rep 15
- R v Janceski (2005) 64 NSWLR 10
- R v Mai (1991) 26 NSWLR 371
- R v Stroulger (1886) 17 QBD 327
- Saraswati v The Queen (1991) 172 CLR 1
- Taylor v The Queen (1895) 1 QB 25