Stephens v The Queen [2022] HCATrans 58 (8 April 2022)

Last Updated: 11 April 2022

[2022] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2021

B e t w e e n -

PETER LEONARD STEPHENS

Applicant

and

THE QUEEN

Respondent

GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 1.24 PM

Copyright in the High Court of Australia
MR O.P. HOLDENSON, QC appears with MR J.P. O’CONNOR for the applicant. (instructed by Macedone Legal)

MR D.T. KELL, SC appears with MR M.W.R. ADAMS for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

GORDON J: Mr Kell, the Court would be assisted to hear from you first, if it may. The application for special leave to appeal raises for consideration the principles and issues addressed by Chief Justice Spigelman in Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, especially at paragraphs 22 to 56. In particular, what his Honour referred to, at paragraph 23, about there being a distinct body of case law where retrospective laws applied pending proceedings, especially criminal proceedings. Here, as I understand it, there is no factual dispute that the applicant’s criminal trial had started before section 80AF was enacted. This Court has not considered either the question of the existence of those principles, the categorisation division that his Honour drew, or the application of them, so we would be very interested to hear from you first.

MR KELL: Thank you, your Honour. Your Honour is right about ‑ that there is no issue that the trial had started at the time the provision came into force. Your Honours have seen the written submissions and what we say, generally. Could I go more specifically to the matter that your Honour has raised in terms of the application of Lodhi, if that would assist.

That arises on the assumption that, if it is applicable, the presumption against retrospectivity applies – or potentially applies – and your Honours have seen what we say and what the CCA has said about whether there is a pre‑existing right and whether there is a right that has been affected and so on. At the moment, I am just moving on to specifically look at that second proposition – that is to say, assuming that the presumption potentially applies, is it overcome here and what is the impact of Lodhi – the effect of the decision in Lodhi.

GORDON J: Especially in this case where, as I think there is no dispute, you do not have an express statement in the legislation, you have got no transitional provision, and, as I understand the reasoning of both Acting Judge of Appeal Simpson and also Justice Button, you have got no extrinsic materials that seem to assist in that analysis.

MR KELL: Yes, that is right, in the sense of there is not – you are right, there is not an express transitional provision that is a feature of this case, and I will deal with that. So perhaps if I could deal with those issues. Seemingly, there is no dispute that if the provision ‑ if the presumption against retrospectivity potentially applies, then that this was an overtly retrospective Act, and then the question is really whether its application ‑ whether it applies to any criminal proceedings. That is at the core of the issue. There is no question that it is directed otherwise, retrospectively.

We submit that the context is ‑ in this respect, context is clearly important, and I will come to that. In terms of Lodhi, we say that Lodhi does not stand in the way of the decision that the CCA majority arrived at, and they obviously had regard to Lodhi, and that it is incorrect to submit, as the respondent does, that the CCA needed to identify express words by Parliament for what was, in effect, the specifically articulated intent to apply section 80AF to pending proceedings. In this respect, Lodhi was directed at – properly understood, we say Lodhi was directed at statutes which criminalise conduct that was previously unlawful, and that that is how ‑ ‑ ‑

STEWARD J: Mr Kell, can I ask you a question in that respect?

MR KELL: Yes.

STEWARD J: Do you disagree with the observation at paragraph 95 of the Court of Criminal Appeal, Justice Button, who said:

To express things bluntly: the commencement of the legislation has the practical effect that some accused persons who previously would have been at liberty at the conclusion of their trial, having been acquitted, will now be in prison, having been convicted.

Is that wrong?

MR KELL: That observation is not necessarily wrong, but as we have otherwise dealt with, the question of the practical effect is no answer to the first proposition which we have dealt with in written submissions, i.e. whether, in fact, there is a pre‑existing right, and that cases such as Rodway, which deal with the removal of a corroboration requirement, can similarly have that practical effect in that, post‑Rodway it may be expected that the removal of the corroboration requirement had a similar effect, but that, in a sense, is no answer to the first issue.

In terms of the second issue, in some respects it just does not – we say it does not – his Honour’s observation does not relevantly assist the construction exercise. So, it is ultimately obviously a question of statutory construction where the context is important, and the context of the observations in Lodhi were circumstances – legislation that was directed at, as I indicated, criminalising conduct that was previously unlawful, or changing the – altering the elements of the criminal offence, which is not this legislation ‑ ‑ ‑

GORDON J: My problem with that, Mr Kell, and this is the issue I would like to hear from you, is that Lodhi sets out a number of principles which you do not dispute, and I accept that. And it is true, as Justice Button recognises, we do not have a new offence, we do not have expansion of elements, but we have something which goes to the critical way in which ultimately the trial is conducted, and that is what his Honour is addressing in 95 and then 97.

So, the question is, is that fact – i.e. that the prosecution case is now easier to prove – something which also requires, when the legislation is being passed, to have what was described by Chief Justice Spigelman in 50 as something that needs to achieved with sufficient clarity. So, you are right, it is the question of construction.

MR KELL: Yes. Clearly, for the question your Honour has posed, we say the answer is no. Could I perhaps address that further, which is the construction issue of pending proceedings. We say that there – so it is a question of statutory construction. Context is all important, and the context of the provision is important, and it is for reasons I said it is different – relatively different from Lodhi. Also, in that exercise though, the mischief rule is important, which, as your Honours obviously know, requires the court to read a statutory provision such as section 80AF insofar as possible consistently with text in a way that resolves the mischief that is identified.

Here, the mischief is a very specific one. The chronological uncertainty as to which offence criminalises otherwise prudent behaviour. We say, as a matter of construction, that there is no reason to suggest that the mischief is any different.....that had not started when section 80AF was enacted, and the small subset of proceedings that had just begun – I mean here, one day earlier, when section 80AF was enacted. So, an outcome as a matter of construction, an outcome where there was that differentiation, would be relevantly observed – using the term of art – because it would take Parliament to have intended that the purpose of the legislation be frustrated depending on the date the trial commenced.

A second consideration going to the questions that your Honours have raised in terms of construction is the generality of the text, a factor that similarly supports our construction. So, if one looks at section 80AF – which is in the materials – so considered in light of the mischief, the general text of section 80AF, and in particular, its use of the present tense such as the word applies. So, “This section applies”, and then sets out the circumstances, demonstrates, we submit, that its application is intended to be immediate upon the conditions in subsections (1)(a) to (d) being satisfied.

A third – perhaps final, for this purpose of consideration – is that the phenomenon addressed by section 80AF ‑ and this is more evident in the departmental review provision paper that is referred to in the CCA judgment ‑ is understood as an example of the kind – of what is referred to or characterised as a loophole – that could be described, and was in this Court’s decision in Gilson, in a different context, as tending to bring the law into disrepute.

That sentiment was part of the inspiration behind the enactment of section 80AF as reflected in the departmental material and that Parliament, as a matter of construction, it cannot be intended, or it cannot be taken to have intended, to allow what may fairly be regarded as a loophole – using that in a non‑pejorative sense – it is the capacity to bring the law into disrepute to persist in pending proceedings.

GORDON J: Can I ask this question? Do you accept, even if one took all of those arguments about construction, and one took the principles identified by Justice Spigelman as applied by Justice Button, is it not only an expansion of inculpation but, take it the other way, and his Honour refers to the fact not flowing one way on a criminal trial, but if an accused at the time of arraignment had known that 80AF was to be applied to him, he may have adopted a different course? In other words, he may have – I am not talking about this applicant, I am talking about generally – pleaded guilty. He may have taken the view that there was a division available to him up and to that point in time because of the straddling of the events. There is a big gap between the arraignment and then the application to amend the indictment.

MR KELL: Well, I think the matter that your Honour has raised just simply cannot be answered in the sense that it is necessarily speculative, and I know your Honour is not raising it as a matter specific to this case.

GORDON J: I am raising it as a question about whether or not the principles identified by Chief Justice Spigelman have a role to play, because they concern the proper conduct of a criminal trial.

MR KELL: The principles that Justice Spigelman identifies ‑ and his Honour in that judgment makes clear also that they are context‑driven, and that scope and purpose are important, and the matters that I have just identified go to the questions of scope and purpose. So Lodhi is – I mean, your Honour is right, that Lodhi is clearly relevant and of guidance, but it is obviously a construction exercise for a particular provision in the particular circumstances, and we say that Lodhi provides guidance but does not provide the answer, and that the CCA majority was correct in the decision that it arrived at in terms of the application of 80AF to pending proceedings.

GORDON J: Is there anything else you wish to say, Mr Kell, in relation to the application?

MR KELL: Your Honour has seen the submissions in writing, which we maintain, and we say that, generally ‑ and I will not repeat those submissions, your Honours have them ‑ that generally the decision involves no more than the application of settled principles to a particular statutory provision. Your Honours are aware of that. But also, in terms of the question on which the exchanges just now, the question of whether the provision itself was intended to apply to pending criminal proceedings is itself a matter that does not raise a question of general principle, and we say that the decision of the CCA is not shown to be incorrect, and that there are insufficient prospects of success. Those are the submissions, your Honour.

GORDON J: Thank you very much, Mr Kell. The Court will adjourn for a moment to consider its position.

AT 1.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.44 PM:

GORDON J: Mr Holdenson, we do not need to hear from you, thank you.

There will be a grant of special leave in this matter. Mr Kell and Mr Holdenson, would it be expected to last less than a day, I would have thought?

MR HOLDENSON: The matter will take less than half a day, I would have thought your Honour.

GORDON J: Thank you. Mr Kell?

MR KELL: Certainly less than a day.

GORDON J: Thank you. I would be most grateful if you could coordinate with the Senior Registrars and the District Registrars about the future management of the matter.

MR HOLDENSON: In that regard, your Honour, just in response to what your Honour Justice Gordon just said and, with respect to the question your Honour asked about the duration of the hearing of the appeal, one of the matters which will be taken up with the learned Registrar is the question of when the case comes on. Should the appeal eventually succeed and be dealt with in the then‑appellant’s favour, it would be the case that he would be serving a term of imprisonment which he ought not be serving, so an application will be made to the Registrar – or through the Registrar – to have the matter brought on sooner than later if possible.

GORDON J: All right. Well, you will need to raise that with the Registrar and I can imagine that appropriate arrangements might be made if the application was successful and I am sure Mr Kell will assist with that if that was necessary. I will leave that to you to raise with the Registrar and with Mr Kell.

MR HOLDENSON: I am indebted to you, your Honour.

GORDON J: Thank you. Would you please adjourn the Court.

AT 1.46 PM THE MATTER WAS ADJOURNED