AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 8 December 2023

R v Foster; R v Foster; R v Regan

[2023] NSWDC 549

Sexual offences
CRIME ACCUSED HISTORICAL SEXUAL ASSAULT JUDGE ALONE TRIAL EX OFFICIO INDICTMENT

Citation: R v Foster; R v Foster; R v Regan [2023] NSWDC 549
Court: District Court of New South Wales
Date: 8 December 2023
Judge: J Smith SC DCJ

Background

Three accused faced a judge-alone trial on 13 counts of historical sexual offences against a complainant who was a child at the time of the alleged conduct. The offences spanned a period during which the relevant provisions of the Crimes Act 1900 (NSW) were amended, creating uncertainty about which version of the law applied to which alleged acts.

At the close of the Crown case, the Crown applied to amend several counts in the indictment. It relied on s 80AF of the Crimes Act 1900, which provides a mechanism to prosecute historical sexual offences where it is uncertain precisely when during a period the alleged conduct occurred. The trial was adjourned to allow the accused time to address the expanded timeframe.

When the trial resumed, the Crown raised a further complication: the High Court's decision in Stephens v The Queen (2022) 273 CLR 635 cast doubt on whether s 80AF could be invoked to amend an indictment after a trial had already commenced. The Crown advanced two arguments: first, that the relevant passages in Stephens were merely obiter dicta and should not be followed; and second, as an alternative, that the indictment could be amended to include expanded date ranges and references to both the pre- and post-amendment versions of the Crimes Act, following the approach approved in MJ v R [2013] NSWCCA 250.

  • Whether the majority's observations in Stephens v The Queen about the temporal operation of s 80AF (that it can only be invoked at the commencement of a trial, not after) were ratio decidendi or obiter dicta.
  • If those observations were obiter, whether they constituted "seriously considered dicta" that a District Court should nonetheless follow.
  • Whether the Crown could instead amend the indictment by expanding the date range and pleading alternative statutory provisions, relying on the approach endorsed in MJ v R.
  • Whether granting leave to amend the indictment at this late stage would cause injustice to any of the three accused.

Decision

On the s 80AF and Stephens question, the District Court rejected the Crown's first argument. Smith SC DCJ undertook a careful analysis of the distinction between ratio decidendi and obiter dicta, and concluded that the majority's observations in Stephens at [45] to [47] were not merely obiter. Even if those passages were characterised as obiter, the court found they constituted seriously considered dicta from the highest court in Australia and, as such, a lower court would not be justified in departing from them. The Crown's characterisation of the relevant passage as limited to only the first sentence of [45] was rejected as too narrow a reading of the majority's reasoning.

The court accepted the majority's reasoning in Stephens that s 80AF may only be invoked at the commencement of a prosecution, and is not available once a trial has begun. The phrase "may be prosecuted" in s 80AF(2) is directed at the initiation of proceedings, not their continuation. Accordingly, the Crown could not rely on s 80AF to amend counts 4, 5, 8, and 11 after the trial had commenced.

On the alternative argument, the court accepted the Crown's reliance on MJ v R. That decision approved an approach of framing charges with an expanded date range that straddles the relevant legislative amendments, pleading the applicable statutory provisions for each sub-period within that range. The court found this approach was available here even though the amendments were sought after the close of the Crown case, distinguishing MJ v R on its facts but accepting its underlying reasoning applied.

On injustice, the court found no feasible prejudice to any of the three accused from granting leave to amend in the manner proposed. Each accused's defence had either already been prepared with reference to the expanded timeframe or was not affected by the date range in a material way. In the case of the accused who had filed an alibi notice, the adjournment already granted had afforded sufficient time to address the revised dates.

Orders Made

  • The Crown was granted leave to amend the indictment to include further counts as set out at paragraphs [41], [43], [46], [48], and [51] of the judgment.

Key Takeaways

  • The District Court held that the majority's observations in Stephens v The Queen at [45] to [47], concluding that s 80AF can only be invoked at the commencement of a prosecution and not after the trial has begun, reflect the ratio or at minimum constitute seriously considered dicta that a lower court should follow.

  • A distinction exists between ratio and obiter that is rarely straightforward: where the High Court expresses two or more reasons for a decision, each can form part of the ratio, and a narrow characterisation of only one sentence as binding was rejected here.

  • Under the approach confirmed in MJ v R [2013] NSWCCA 250, charges in historical sexual offence prosecutions can be framed with expanded date ranges that straddle legislative amendments, with references to the applicable statutory provisions for each sub-period within that range, as an alternative to relying on s 80AF.

  • Late-stage amendments to an indictment will not necessarily cause injustice where an adjournment has already been granted, where the accused's defence is not materially dependent on the precise date range, or where the amendment follows a route available at law.

  • Section 80AF of the Crimes Act 1900 (NSW) is a tool that must be deployed before a trial commences: its temporal operation does not extend to mid-trial amendments in proceedings that were already on foot when the section came into force.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 80AF, s 81, and s 78K
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Procedure Act 1986 (NSW), s 20(1)(a)

Cases
- Stephens v The Queen (2022) 273 CLR 635
- MJ v R [2013] NSWCCA 250
- AC v R [2023] NSWCCA 133
- R v MAJW [2007] NSWCCA 145; 171 A Crim R 407
- R v Rajendran [2010] NSWCCA 322; 206 A Crim R 316
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
- Hill v Zuda (2022) 275 CLR 24
- Mabo v Queensland (No. 2) [1992] HCA 23; 175 CLR 1
- Bristol-Myers Squibb Company v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524
- Brunner v Greenslade [1971] Ch 993
- McBride v Monzie Pty Ltd [2007] FCA 1947; 164 FCR 559
- Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39
- Ying v Song [2009] NSWSC 1344