Citation: R v Glenn (a pseudonym) [2015] NSWSC 1888
Court: Supreme Court of New South Wales
Date: 7 December 2015
Judge: Adamson J
Background
The applicant (referred to by the pseudonym "Glenn") faced a charge of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW). Before the bail application could be heard on its merits, the court needed to determine a threshold question: did the applicant need to "show cause" why his detention was not justified under s 16B(1)(c) of the Bail Act 2013 (NSW)?
The Crown argued that the show cause requirement applied because the applicant had a prior conviction for kidnapping under s 90A of the Crimes Act, a provision that had been repealed in 2001 and replaced by s 85A (and subsequently renumbered as s 86). Section 16B(3) of the Bail Act defines a "serious personal violence offence" by reference to current offence provisions, including s 86.
The applicant contended that, because his prior conviction was recorded under s 90A (which no longer exists), it could not constitute a conviction for a "serious personal violence offence" as defined in the Bail Act. Resolving that argument required close analysis of statutory interpretation principles and the history of the kidnapping offence.
Legal Issues
- Whether the applicant's prior conviction under the now-repealed s 90A of the Crimes Act constituted a conviction for a "serious personal violence offence" within the meaning of s 16B(3) of the Bail Act 2013
- Whether the repeal and renumbering of s 90A (kidnapping) into s 85A and later s 86 meant the offence was substantively the same for the purposes of the show cause definition
- Whether ss 5 and 68 of the Interpretation Act 1987 (NSW) operated to extend the definition in s 16B(3) to cover convictions under the former s 90A
- Whether any "contrary intention" existed in the legislation that would displace the operation of the Interpretation Act
Decision
Adamson J found that s 90A, as it existed before its repeal in 2001, effectively criminalised the same conduct as s 86 (formerly s 85A). Although the legislative restructuring introduced clearer aggravated and specially aggravated tiers, and replaced the contested "substantial injury" test with "actual bodily harm," the core conduct remained the same: taking or detaining a person without consent with intent to hold for ransom or obtain some other advantage. The old and new provisions were not incompatible; the new section was properly regarded as the statutory successor to the former.
The court applied ss 5 and 68 of the Interpretation Act 1987, which operate so that a reference in legislation to a provision that has been repealed and remade is treated as a reference to the remaking. Relying on the Court of Appeal's reasoning in Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, and the academic analysis in Pearce and Geddes, Statutory Interpretation, Adamson J held that these provisions had the effect of reading the s 16B(3) definition as encompassing a conviction under s 90A.
The court also found no "contrary intention" in the Bail Act or associated legislation that would displace the operation of the Interpretation Act. Accordingly, the prior conviction under s 90A counted as a conviction for a "serious personal violence offence," and the applicant was required to show cause why his continued detention was not justified.
Adamson J noted, without deciding, that a different conclusion might follow for offences that have been entirely repealed without equivalent replacement, such as offences that are no longer considered criminal at all. In such cases, a contrary intention capable of displacing the Interpretation Act might be found.
Orders Made
• The applicant is required to show cause pursuant to s 16A of the Bail Act 2013 (NSW) since he has previously been convicted of a serious personal violence offence within s 16B.
Key Takeaways
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A prior conviction under s 90A of the Crimes Act 1900 (kidnapping), notwithstanding that section's repeal in 2001, can constitute a conviction for a "serious personal violence offence" under s 16B(3) of the Bail Act 2013 because s 86 (via s 85A) is properly regarded as the statutory successor to s 90A.
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Sections 5 and 68 of the Interpretation Act 1987 (NSW) operate so that legislative references to a current provision extend to convictions under a predecessor provision that has been repealed and remade in substantially equivalent terms. The renumbering of an offence does not, of itself, sever the statutory continuity.
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The court's conclusion was reinforced by the Second Reading Speech accompanying the 2001 amendments, in which the Attorney-General expressly stated that the new s 85A would "replace" s 90A, confirming legislative intent to preserve substantive continuity rather than create an entirely new offence.
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A different result may apply where an offence has been wholly abolished without any successor provision (for example, conduct that is no longer criminal), since in that scenario a contrary intention capable of displacing the Interpretation Act is more readily identified. The court left that question open.
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Under s 16B(1)(c) of the Bail Act 2013, an applicant charged with a serious personal violence offence who has a prior conviction for such an offence bears the burden of showing cause why detention is not justified before the substantive bail application is considered.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), s 16B
- Bail Act 1978 (NSW), s 9B
- Crimes Act 1900 (NSW), ss 61J, 79, 85A, 86, 90A
- Crimes (Amendment) Act 1961 (NSW), s 2
- Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW), Sch 1, cll 5, 6
- Crimes Legislation Amendment Act 2012 (NSW), Sch 1, cl 3
- Criminal Legislation Amendment Act 2001 (NSW), Sch 3, cl 2
- Interpretation Act 1987 (NSW), ss 5, 33, 35, 68
- Public Works Act 1912 (NSW), ss 126, 126A
Cases:
- Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220
- Davis v Regina [2006] NSWCCA 392