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District Court 18 October 2022

R v Laybutt

[2022] NSWDC 601

Sexual offences
SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Laybutt [2022] NSWDC 601
Court: District Court of New South Wales
Date: 18 October 2022
Judge(s): McHugh SC DCJ

Background

The accused faced three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from alleged conduct on 14 September 2020. The central issue at trial was consent. The proceedings were complicated by the death of the complainant in October 2021, after which the Crown successfully applied to admit the complainant's statement under s 65(2) of the Evidence Act 1995.

The accused had first appeared in the District Court and been arraigned on 9 April 2021, before the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 commenced on 1 June 2022. By the time the trial began in October 2022, the new consent direction provisions (ss 292A to 292E of the Criminal Procedure Act 1986) were in force.

The Crown applied for directions to the jury under those new provisions. The accused opposed the application, arguing the transitional provisions meant the new regime did not apply to these proceedings.

  • Whether the new consent direction provisions in ss 292A to 292E of the Criminal Procedure Act 1986 applied to a trial where the accused had been arraigned before the commencement of those provisions on 1 June 2022.
  • How to interpret the transitional clause in Schedule 2 of the Criminal Procedure Act, specifically the phrase "if the hearing of the proceedings began before the commencement of the amendment."
  • Whether the phrase "hearing of the proceedings" referred to the entire proceedings from arraignment, or only to the substantive jury trial.

Decision

The core dispute turned on the meaning of "hearing of the proceedings" in the transitional provision. The accused argued that "proceedings" encompassed all steps from arraignment, including procedural and pre-trial hearings, meaning these proceedings had begun well before 1 June 2022. The Crown contended that "hearing of the proceedings" referred specifically to the commencement of the substantive jury trial.

His Honour accepted the Crown's construction. The judge found that the words "hearing of" in the transitional clause carry independent work: without them, the provision would simply exclude matters where "proceedings began" before commencement, but the legislature chose different language. That difference, in his Honour's view, pointed toward a reference to the trial proper before a jury or judge alone.

His Honour drew support from the reasoning of Smith J in R v Zekry Bishara [2022] NSWDC 291, and noted obiter dicta from the High Court in Stephens v R [2022] HCA 31, which indicated that the presumption against retrospective operation carries less force where amendments affect only procedural rules rather than substantive rights. The judge also observed that directions of the kind now codified in ss 292A to 292E were not wholly novel: a trial judge could previously have conveyed similar matters to a jury in less formal terms.

Accordingly, the court held the new consent direction provisions applied to this trial, and indicated directions would be given in accordance with ss 292A to 292E at an appropriate time.

Orders Made

  • The court held that ss 292A to 292E of the Criminal Procedure Act 1986 applied to the trial.
  • Directions to the jury under those provisions were to be given at an appropriate time during the trial.

Key Takeaways

  • The District Court held that the phrase "hearing of the proceedings" in the Schedule 2 transitional provision refers to the commencement of the substantive jury trial (or judge-alone trial), not to earlier steps such as arraignment or pre-trial hearings.
  • Under the transitional regime, the consent direction provisions inserted by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 can apply even where an accused was arraigned before those provisions commenced on 1 June 2022, provided the jury trial itself began after that date.
  • The words "hearing of" in the transitional clause were found to serve a distinct purpose: they narrow the exclusion to cases where the trial proper had already begun, rather than cases where any procedural step had occurred.
  • Following Stephens v R [2022] HCA 31, the presumption against retrospective operation carries reduced weight where an amendment affects procedural rules rather than substantive rights.
  • The decision is consistent with the approach taken in R v Zekry Bishara [2022] NSWDC 291, suggesting an emerging consensus at District Court level on this transitional question.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), ss 130, 292, 292A, 292B, 292C, 292E; Sch 2 (transitional provisions)
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
- Evidence Act 1995 (NSW), ss 65(2), 67

Cases
- GG v R (2010) 79 NSWLR 194
- R v Zekry Bishara [2022] NSWDC 291
- Stephens v R [2022] HCA 31