Citation: R v Zekry Bishara [2022] NSWDC 291
Court: District Court of New South Wales
Date: 19 July 2022
Judge(s): Judge J Smith SC
Background
This decision arose during a criminal trial on indictment. A question emerged as to whether the new jury direction provisions inserted into the Criminal Procedure Act 1986 by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which took effect on 1 June 2022, applied to the proceedings.
The accused had first been arraigned in the District Court in November 2021, before the amending Act commenced. However, the accused was arraigned again before the jury panel on 12 July 2022, which was after the amendment took effect.
The dispute turned on the transitional provisions in item 117 of Schedule 2 of the Criminal Procedure Act. Those provisions required the court to determine when the "hearing of the proceedings" began, because the new consent directions regime only applied to hearings that commenced after 1 June 2022.
Legal Issues
- Whether the "hearing of the proceedings" for the purposes of the transitional provisions commenced at the first arraignment of the accused in November 2021 (before the amendment took effect), or at the arraignment before the jury panel in July 2022 (after the amendment took effect)
- Whether the new consent jury directions provisions in ss 292 to 292E of the Criminal Procedure Act therefore applied in this trial
- Whether the relevant principles of statutory construction, including those concerning the preservation of existing rights and freedoms, affected the construction of the transitional provisions
Decision
Issue 1: When did the "hearing of the proceedings" commence?
The court considered the Court of Criminal Appeal's analysis in GG v The Queen (2010) 79 NSWLR 194, which examined similar transitional language in the Evidence Act 1995. Although that case did not require a final determination of when a trial on indictment commences, Beazley JA's reasoning at of that decision provided significant guidance, alongside observations by Gleeson CJ in R v Pearson and Howie J in R v Janceski (at [7]-[9]).
The court drew a distinction between the provisions of the Criminal Procedure Act governing indictable procedure generally (ss 126 to 133) and the specific provisions in Subdivision 3 of Part 5, which deal with jury directions in sexual offence proceedings. The consent directions regime is targeted at particular matters to be addressed during a trial, and necessarily presupposes the presence of a jury or a judge sitting alone (at [13]-[14]).
That character of the provisions supported the conclusion that the relevant "hearing" began when the accused was arraigned before the jury panel on 12 July 2022, not at the earlier administrative arraignment in November 2021 (at [14]).
Issue 2: Did statutory construction principles alter that conclusion?
The court considered the fifth and sixth construction principles identified in State of New South Wales v Kaiser [2022] NSWCA 86, as recently applied in Director of Public Prosecutions v Day [2022] NSWSC 938. Those principles concern protecting existing rights and freedoms from legislative change (at [15]-[16]).
The court held that those principles did not affect the construction of the transitional provisions here. The consent directions do not alter the substantive elements of any offence and do not affect the rights or freedoms of the accused in a legally significant sense. They concern only the manner in which consent is to be explained to the jury or other tribunal of fact (at [17]).
Applying a contextual approach to item 117 of Schedule 2, the court concluded that the new directions regime under ss 292 and following did apply to this trial (at [18]).
Orders Made
- The court determined that the consent jury direction provisions in ss 292 and following of the Criminal Procedure Act 1986 apply to the proceedings.
- The court indicated it would have regard to those provisions when summing up to the jury, subject to any further submissions about the content of the directions.
Key Takeaways
- The District Court held that the "hearing of the proceedings" in the context of the transitional provisions for the consent jury directions regime commenced at arraignment before the jury panel, not at any earlier administrative arraignment.
- A distinction exists between provisions of the Criminal Procedure Act governing the general conduct of indictable proceedings and provisions, such as the consent directions in Subdivision 3 of Part 5, that are directed at specific steps to be taken during the trial itself before a tribunal of fact.
- Jury directions of this kind do not alter the substantive law defining an offence, so the statutory construction principles that protect existing rights and freedoms from retrospective legislative change did not displace the ordinary operation of the transitional provisions.
- GG v The Queen [2010] NSWCCA 230 remained influential in guiding the analysis, even though its precise holding did not resolve the question, because the reasoning about when a trial commences for the purposes of similar transitional language was closely analogous.
- The decision is confined to the specific transitional question before the court and does not purport to resolve comprehensively when a criminal "hearing" begins in all contexts under the Criminal Procedure Act.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021
- Criminal Procedure Act 1986 , ss 292 – 292E , item 117 Sch 2
- Evidence Act 1995
Cases
- Director of Public Prosecutions v Day [2022] NSWSC 938
- GG v The Queen (2010) 79 NSWLR 194; [2010] NSWCCA 230
- Lee v NSW Crime Commission (2013) 251 CLR 196
- R v Janceski (2005) 64 NSWLR 10
- R v Pearson (NSWCCA, 5 March 1996, unreported)
- State of New South Wales v Kaiser [2022] NSWCA 86