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Court of Criminal Appeal 9 July 2021

Stephens v R

[2021] NSWCCA 152

Sexual offences
CRIME SEXUAL OFFENCES CRIMES ACT 1900 (NSW) WHEN CRIMINAL PROCEEDING COMMENCES RETROSPECTIVITY SEXUAL OFFENCES

Citation: Stephens v R [2021] NSWCCA 152
Court: Court of Criminal Appeal (NSW)
Date: 9 July 2021
Judge(s): Simpson AJA (principal judgment), Davies J (agreeing), Button J (agreeing in part, dissenting in part)

Background

The appellant was alleged to have committed sexual offences against a male complainant between January 1982 and December 1987. The relevant legislative landscape shifted significantly during that period: on 8 June 1984, s 81 of the Crimes Act 1900 (NSW), which provided for indecent assault on a male person, was repealed and replaced by s 78K, which created an offence of homosexual intercourse with a male person aged between 10 and 18 years.

The appellant was arraigned in November 2018 on an indictment containing 18 counts. Where a charged period straddled the 8 June 1984 legislative change, the indictment pleaded the s 81 offence and the s 78K offence in the alternative. In February 2019, the indictment was amended to take advantage of s 80AF of the Crimes Act, which had come into effect on 1 December 2018 and permitted the prosecution to rely on the offence carrying the lesser maximum penalty (s 81) for the entirety of the charged period, including after s 81 had been repealed.

One count (count 14) alleged an offence against s 78K during a period when the complainant was aged between 14 and 16.5 years. Section 78T(1) of the Crimes Act required that prosecutions be commenced within 12 months where the complainant was over 16 at the time of the alleged offence. The prosecution was commenced well outside that limit. The appellant was ultimately convicted on seven counts and appealed against four of those convictions.

  • Whether the primary judge erred in granting leave to amend the indictment to rely on s 80AF, and whether s 80AF applied to proceedings that had already commenced before it came into effect
  • Whether s 80AF was a substantive or procedural provision, and whether applying it to commenced proceedings offended the principle against retrospective operation of legislation
  • Whether the conviction on count 14 was statute-barred by the 12-month limitation period under s 78T(1)
  • What resentencing was required following any successful appeal

Decision

Issue 1: Amendment of the indictment and application of s 80AF (counts 6, 7 and 13)

The majority (Simpson AJA, Davies J agreeing) held that s 80AF did not affect any existing rights or obligations of the appellant and was therefore procedural in character. Even if the provision were substantive, it was plainly intended to alter the existing law with respect to proof of historical sexual offending against children, and that intention was sufficient. The majority distinguished the present case from Lodhi v R, noting that s 80AF does not make past acts criminal, does not create a new offence, and does not alter a pre-existing offence. It simply permits reliance on the lesser penalty provision across the entirety of a charged period where chronological uncertainty arises. The grounds of appeal on this issue were rejected by the majority.

Button J dissented on this point. His Honour considered that s 80AF expanded the practical ability of the prosecution to obtain a guilty verdict in circumstances of chronological uncertainty, a form of inculpation that was not previously available. In the absence of any express transitional provision or extrinsic material indicating that Parliament intended the section to apply to already-commenced proceedings, Button J concluded that the principles against retrospective operation applied. His Honour would have quashed the convictions on counts 6, 7 and 13 and ordered new trials.

Issue 2: Statutory time bar on count 14

All three judges agreed that the conviction on count 14 could not stand. The indictment framed the count to cover a period during which the complainant was over 16 years of age for part of the time. Because the specific date on which the complainant turned 16 was an essential fact in the prosecution, it fell within the recognised exception to the general rule that dates in an indictment are not "of the essence." The prosecution was therefore required to comply with the 12-month time limit in s 78T(1) and had not done so. The proviso in s 6(1) of the Criminal Appeal Act 1912, which allows a conviction to stand despite an error where no substantial miscarriage of justice has occurred, could not be used to defeat a statutory time limit. The conviction on count 14 was quashed and a verdict of acquittal entered.

Resentencing

Following the quashing of the count 14 conviction, the aggregate sentence previously imposed was also quashed. The majority resentenced the appellant on the remaining counts (1, 2, 3, 6, 7 and 13).

Orders Made

  • Appeal against conviction on count 14 allowed; conviction quashed and verdict of acquittal entered
  • Appeal against convictions on counts 6, 7 and 13 dismissed (by majority)
  • Aggregate sentence quashed
  • Appellant resentenced on counts 1, 2, 3, 6, 7 and 13

Key Takeaways

  • Section 80AF of the Crimes Act 1900 (NSW), which permits reliance on the lesser-penalty provision across a charged period spanning the 1984 legislative change, was characterised by the majority as procedural rather than substantive, and was found to apply to proceedings that had already commenced.

  • Even if s 80AF were substantive, the majority held that a clearly expressed legislative intention to alter existing law is sufficient to displace the general presumption against retrospective operation, provided the statute does not create a new criminal offence or render previously lawful conduct criminal.

  • Where a statutory time limit for commencing a prosecution is engaged by facts that form an essential element of the charge as framed in the indictment, the time limit cannot be circumvented by pointing to evidence that might have supported a different, timely charge.

  • The proviso in s 6(1) of the Criminal Appeal Act 1912 cannot operate to preserve a conviction that is defeated by a statutory limitation period: the Court of Criminal Appeal entered an acquittal rather than ordering a retrial.

  • Button J's dissent illustrates that the application of anti-retrospectivity principles to provisions that expand prosecutorial capacity, even without creating new offences, remains a genuinely contested area, particularly where Parliament has not included express transitional provisions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 78K, 78T, 80AF, 81
- Crimes (Amendment) Act 1984 (NSW), Sch 1
- Criminal Legislation Amendments (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 20, 130, 154
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A
- Interpretation Act 1987 (NSW), s 30

Cases
- CJW v R [2018] NSWCCA 80
- GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230
- Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121
- Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
- R v Greenaway [2000] NSWCCA 368
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- R v Nicolaidis (1994) 33 NSWLR 364
- R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep)
- R v Taylor [2003] NSWCCA 194
- Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19
- Truong v The Queen (2004) 233 CLR 122; [2004] HCA 10