Citation: Seeto v R; Evans v R [2008] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 2 October 2008
Judge(s): Giles JA, Rothman J, Price J
Background
The two appellants were a civilian, Ms Seeto, and a serving police officer, Senior Constable Evans. Ms Seeto pleaded guilty in the Local Court to nine offences of bribing Evans under s 200(2)(a) of the Police Act 1990, with the offending occurring between February 2003 and January 2007. Evans pleaded guilty to eight corresponding offences of receiving those bribes. Both were committed to the District Court for sentence, where they received terms of imprisonment.
Court attendance notices were filed against both appellants on 23 May 2007. The charges relating to conduct in February 2003, December 2003, February 2004, and October 2004 all predated that filing by more than two years.
The appellants argued on appeal that those earlier charges were statute-barred by s 200(3) of the Police Act, which provides that proceedings for an offence under that section "may be taken within 2 years after the act or omission alleged to constitute the offence." The Crown contested that construction.
Legal Issues
- Whether s 200(3) of the Police Act 1990 imposed a two-year limitation period that barred prosecution of offences committed more than two years before proceedings were commenced
- Whether the word "may" in s 200(3) operated as a facultative (permissive) provision extending the ordinary limitation for summary offences, or as a restrictive provision capping prosecution at two years
- Whether the legislative history of the Police Act 1990, including the 1996 amendments, affected the proper construction of s 200(3)
- Whether proceedings prosecuted on indictment were subject to any two-year time limit under s 200(3)
Decision
The Court of Criminal Appeal unanimously held that s 200(3) did not impose a two-year limitation period on offences prosecuted on indictment. The word "may" in the subsection was facultative, not restrictive. The provision permitted proceedings to be commenced within two years, but it did not preclude commencement after that period where other authority existed to do so.
The appellants' argument relied on the maxim expressio unius est exclusio alterius, treating the two-year window as implicitly exclusive by reading the subsection as if the word "only" appeared before "within 2 years." Price J, with whom Giles JA and Rothman J agreed, rejected that approach. To imply that limitation, the court would have had to draw an inference unsupported by the statutory text, and such a reading would produce a result both absurd and repugnant to the clear purpose of the legislation.
Rothman J emphasised the significance of the legislative context. The 1996 amendments were introduced alongside the Police Corruption Bill 1996 as a direct response to systemic corruption uncovered by the Wood Royal Commission. That Commission had revealed how corruption could remain hidden for many decades. In that context, implying a two-year ceiling on indictable prosecutions would undermine the very mischief the statute was designed to remedy, particularly without any express parliamentary statement to that effect.
The court also noted that a 2006 Minister's statement in Hansard appeared to assume the two-year limit applied to indictable offences, but Price J found that assumption erroneous. A ministerial statement resting on a misreading of the statute's effect cannot displace the proper construction of the legislation. The charges the subject of the appeal were prosecuted on indictment, and therefore no two-year limitation applied. The earlier charges were not statute-barred.
Orders Made
- Leave to appeal granted to Janice Seeto, but the appeal dismissed.
- Leave to appeal granted to Stephen Richard Evans, but the appeal dismissed.
Key Takeaways
- Under s 200(3) of the Police Act 1990, the two-year period for commencing proceedings is facultative, permitting prosecution within that window rather than restricting prosecution to it.
- Where an offence under the Police Act is prosecuted on indictment, the two-year period in s 200(3) does not operate as a ceiling on when proceedings may be commenced.
- Legislative history and the mischief a statute is designed to remedy are legitimate tools of construction, particularly where a rival interpretation would produce a result absurd or repugnant to the legislation's evident purpose.
- The maxims of construction captured by expressio unius est exclusio alterius are useful guides but not absolute rules; they cannot be applied where they would imply a significant restriction that parliament did not expressly or clearly intend.
- A ministerial statement in Hansard that proceeds on an erroneous assumption about a statute's effect does not override the proper construction of that statute, even when the statement postdates the legislation by nearly a decade.
Legislation and Cases Referenced
Legislation:
- Police Act 1990 (NSW), ss 200(2)(a), 200(3), 200(4)
- Police Service Act 1990 (NSW), s 106(1)
- Police Legislation Amendment Act 1996 (NSW)
- Police Amendment (Miscellaneous) Act 2006 (NSW)
- Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW)
- Interpretation Act 1987 (NSW), ss 33, 34
- Justices Act 1902 (NSW)
Cases:
- Attorney General of the Commonwealth v Oates [1999] HCA 35; (1999) 198 CLR 162
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Colquhoun v Brooks (1888) 21 QBD 52
- Harrison v Melhem [2008] NSWCA 67
- Mills v Meeking (1990) 169 CLR 214
- Re Building Workers' Industrial Union of Australia Ex Parte Pillar [1991] HCA 50; (1992) 174 CLR 263
- Re Coldham ex parte Bideson [No 1] (1989) 166 CLR 338
- Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88
- Saraswati v R [1991] HCA 21; (1991) 172 CLR 1