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Supreme Court 16 September 2022

R v Tran

[2022] NSWSC 1377

Homicide
CRIME M URDER P ARTIAL DEFENCES P RE TRIAL RULING A MENDMENT AND REPEAL

Citation: R v Tran [2022] NSWSC 1377
Court: Supreme Court of New South Wales
Date: 16 September 2022
Judge(s): Button J

Background

The accused faced a murder trial in which the partial defence of substantial impairment, under s 23A of the Crimes Act 1900 (NSW), was described as the "fulcrum" of the proceedings. The alleged killing occurred on 14 March 2019. In March 2021, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) amended s 23A, updating the language of the substantial impairment defence, but included no transitional provision addressing which version of the defence would apply to pending or future trials for conduct predating the amendment.

The first arraignment in the Supreme Court took place on 10 December 2021, after the amending legislation had commenced. The trial proper, before a jury, was due to begin on 19 September 2022. Both parties had prepared their cases on the basis of the old version of the defence, and both jointly submitted that the pre-amendment form of s 23A should govern the trial.

The central procedural question for Button J was a pre-trial ruling: in the absence of any transitional provision, which version of s 23A should apply to a killing that occurred almost two years before the amending legislation commenced?

  • Whether the pre-amendment or post-amendment version of s 23A of the Crimes Act 1900 (NSW) applies where the killing predated the legislative change but the trial commenced after it
  • How to construe amending legislation that altered the elements of a partial defence without including a relevant transitional provision
  • Whether retrospective application of the amended defence would be consistent with established principles of statutory interpretation

Decision

Button J held that the pre-amendment version of s 23A applies to the trial. His Honour reasoned that applying the new version to a killing that occurred before the legislation commenced would be an "unattractive and strange" result, particularly in the absence of an explicit transitional provision.

The partial defence of substantial impairment operates as a "carve-out" from murder: if established, it reduces a verdict from murder to manslaughter. Changing the elements of that carve-out retrospectively indirectly alters the parameters of which homicides fall within the definition of murder and which fall within manslaughter. Button J observed that courts should not lightly impute to Parliament an intention to change those parameters retrospectively without clear provision, drawing on the High Court's reasoning in Stephens v The Queen [2022] HCA 31.

Button J also noted the practical dimension. Both parties had invested significant time, money, and effort preparing on the basis of the old version of the defence. Requiring them to "change gears" at trial would itself underscore the strangeness of a retrospective reading. Importantly, neither party identified any practical advantage or disadvantage arising from the choice between the two versions, which was unsurprising given that the amendment was understood to be largely a modernisation of terminology rather than a substantive change.

His Honour acknowledged a recent decision by Wright J in R v Papanicolaou (No 4) [2021] NSWSC 1698, which had reached the same conclusion on slightly stronger facts. In that case, the first arraignment had occurred before the amending legislation commenced. Button J accepted that the facts in the present case presented a marginally weaker position, because the first arraignment postdated the amendment. Nevertheless, he found the reasoning in Papanicolaou apposite and reached the same conclusion.

Orders Made

• The court will direct the jury at trial in terms of the old version of s 23A of the Crimes Act (concerning the definition of substantial impairment as a partial defence to murder)

Key Takeaways

  • In the absence of an explicit transitional provision, courts should not readily read amending legislation as retrospectively altering the parameters of an offence or partial defence where the conduct occurred before the amendment commenced.
  • The partial defence of substantial impairment under s 23A functions as a definitional boundary between murder and manslaughter; changing its elements retrospectively indirectly affects the scope of those offences, not merely procedural matters.
  • Button J confirmed the approach taken in R v Papanicolaou (No 4) [2021] NSWSC 1698, applying it even where the first arraignment occurred after commencement of the amending legislation, not before it.
  • The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) amended s 23A in terms understood primarily as modernising psychiatric language rather than making substantive changes, but the absence of a transitional provision nevertheless required judicial resolution.
  • Where both parties to a criminal trial jointly agree on the correct statutory construction, and neither identifies prejudice from the agreed approach, courts may accept that joint position provided it is consistent with principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121
- R v Papanicolaou (No 4) [2021] NSWSC 1698
- Stephens v The Queen [2022] HCA 31