The Queen v Hay[2009] QDC 333

DISTRICT COURT OF QUEENSLAND

[1] HIS HONOUR:  The defendant, Tony Bevan Hay, has pleaded guilty on 1 May 2009 to an indictment which contains a single count of unlawful possession of a motor vehicle, the details of which are as follows:-

"That on or about the 17th day of December 2007 at Beenleigh in the State of Queensland, Tony Bevan Hay had in his possession a motor vehicle, without the consent of Canh Thanh Nguyen, the person in lawful possession of it, with intent to permanently deprive its owner of the use and possession of it."

[2] The defendant's criminal history (Exhibit 1) indicates that on 15 November 2005 in the Beenleigh Magistrates Court, the defendant received a sentence of eight months' imprisonment, concurrent, in respect of each of the following charges:-

"Wilful damage of police property (on 13/8/05)

Enter dwelling with intent by break in company (on 16/9/05)

Unlawful possession of motor vehicles, aircraft or vessels with intent to deprive (on 16/9/05)

Attempted enter of premises with intent (on 25/9/05)"

In each case the sentences were wholly suspended with an operational period of 18 months.

[3] On 3 February 2006 the defendant was sentenced in respect of four charges of breach of bail, on dates prior to 15 November 2005, but was also sentenced in respect of two charges of obstruct police which occurred on 16 December 2005 (i.e. subsequent to the 15 November 2005 sentence).  In respect of the suspended sentence imposed on 15 November 2005, the Court (Beenleigh Magistrates Court) on 3 February 2006 ordered that the operational period be extended a further 12 months.

[4] It is clear, therefore, that the unlawful possession of a motor vehicle count to which the defendant has pleaded guilty in this Court on 1 May 2009, and for which he is to be sentenced today, occurred during the extended operational period of the original suspended sentence imposed on 15 November 2005.

[5] It is common ground between the prosecution and defence that, prior to the amendments to the Penalties and Sentences Act contained in the Criminal Code and Other Acts Amendment Act 2008, which commenced on 1 December 2008, the decision in R v Muller (2005) 157 A Crim R 104; [2005] QCA 417 was authority for the proposition that there was no power to deal with an offender for a breach of a suspended sentence that occurred during an extended operational period (per Jerrard, JA p.116; para 51).

[6] Clause 141 of the Criminal Code and Other Acts Amendment Bill 2008 substituted the following definition of "subsequent offence" in s.147(5) of the Penalties and Sentences Act:

"Subsequent offence means the offence committed during -

(a) the operational period of an order made under section 144 for the original offence; or

(b) an extension of the operational period ordered under section 147(1)(a)(i) for the original offence; or

(c) a further stated operational period ordered under section 147(1) (a)(ii)(B) for the original offence."

[7] The Explanatory Notes to the Criminal Codes and Other Acts Amendment Bill state (p.3), "The Penalties and Sentences Act 1992 is also amended to correct current anomalies in the Act by clarifying that a sentencing court;

⮚ may deal with an offender who re-offends during the extended operational period of a suspended sentence, addressing issues identified by the Court of Appeal in R v Muller [2005] QCA 417 ..."

⮚ and further (p. 27), Clause 141 amends section 147 (powers of court mentioned in s. 146)

⮚ the amendments to sections 146, 146A and 147 clarify that a court may deal with an offender who re-offends during an extended operational period of a suspended sentence.  This is achieved by inserting references to 'an extension of the operational period ordered under section 147(1)(a)(i)' or 'further stated operational period ordered under section 147(1)(a)(ii)(B)' into sections 146(1)(a)(ii), 146(1)(b)(ii) and the definition of 'subsequent offence' in section 147(5).  A reference to 'section 147(1)(a)' has been inserted into section 146A(1)(a) enabling a warrant or summons to be obtained.

[8] Clearly the amendment was designed to deal with the hiatus in the Penalties and Sentences Act identified in R v Muller.  The question confronting this court is whether that amendment operates retrospectively.

[9] Ms Whelan, who appears on behalf of the Director of Public Prosecutions, has referred me to the decisions in Rodway v R (1990) 169 CLR 515; [1990] HCA 19; and R v GT [2005] QCA 478.

[10] In Rodway v R at pp.518-520, the court stated, "The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation, unless the language of the statute expressly or by necessary implication requires such construction.  It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation.  It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.  In these, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption.  It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.  A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance”.

[11] But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations.  When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operations.  But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

[12] It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon CJ in Maxwell v Murphy to formulate the general rule in terms which did not rest simply upon that classification.  He said [1957 96 CLR at p.267]: "The general law of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose, or otherwise affect rights or liabilities which the law had defined by reference to the past events.  But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced, or their enjoyment, is to be secured by judicial remedy is not within the application of such a presumption.  Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made, the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise passed and closed.  The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger [1876] 3 Ch B 62 that 'no suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided of course that no injustice is done.' [1876] 3 Ch B at p.69".

[13] Further, in Rodway v R at p.521, the Court stated, "But ordinarily an amendment to the practice or procedure of a Court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right.  It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity.  A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.  The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Melish LJ in the passage cited by Dixon J in Maxwell v Murphy, that no-one has a vested right in any form of procedure.  It is a principle which has been well established for many years; see also Wright v Hale [1860] 6 H & N 227, 233; per Wilde B; Attorney-General v Sillen [1864] 10 HLC 704, 763 per Lord Wensleydale; Warner v Murdoch [1877] 4 Ch D 750, 752 per James LJ".

[14] In R v GT, Atkinson J (with whom Williams JA and Muir J agreed) stated (at paragraphs 26 – 28):

"Parliament has the power to pass retrospective legislation of this type.  However, where it affects substantive rights rather than matters of procedure, it is presumed not to have a retrospective effect.  It has been said that it will not apply retrospectively unless the intention for it to so apply appears with reasonable certainty.  This presumption was expressed by Dixon CJ in Maxwell v Murphy as:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events."

The rule against retrospectively taking away a right or imposing a liability is a basic human right imposed, or at least recognised, by the common law.  In my view, given the greater recognition given to human rights by both international and national law over the past 50 years, "reasonable certainty" may no longer be considered a sufficiently clear statement of the test.  The presumption against retrospectivity can only be displaced in legislation by express provision or words of plain intendment.

If there is any ambiguity about the construction, the interpretation should be favoured which avoids retrospective operation of the statute.  In In re Athlumney; ex parte Wilson, Wright J said:

"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.  If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospect of only."

This common law presumption is enshrined in S 20 of the Acts Interpretation Act 1954 [QLD] which provides that:

"[2] The repeal or amendment of an act does not -

3. (3)
   The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened."

[15] This is consistent with what is referred to in s 4 of the Legislative Standards Act 1992 [Qld] as "fundamental legislative principles" which "are the principles relating to the legislation that underlie a Parliamentary democracy based on the rule of law."  One of those principles is that legislation should "not adversely affect rights and liberties…retrospectively".

[16] However, a merely procedural statute is, in the absence of an indication to the contrary, construed as acting retrospectively.  Matters of admissibility of evidence are usually, although not invariably, treated as procedural and should be treated so in this case.  In any event, any presumption against retrospectivity has been clearly rebutted by S 95 of the Amendment Act."

[17] Ms Whelan submits that the 1 December 2008 amendments to the Penalties and Sentences Act are procedural only, and therefore are applicable to Mr Hay (the defendant before this Court).  In the alternative, Ms Whelan argues that the amendment specifically contemplates a retrospective operation, and therefore displaces the presumption against retrospectivity.

[18] Dr Kellie, who appears on behalf of the defendant, submits, on the contrary, that the amendment is not procedural, that Penalties and Sentences Act ss.146 and 147 should be construed as substantiative penal provisions, and that the amendment clearly impacts on rights and obligations.  Dr Kellie also submits that the amending legislation does not, in any event, contain a clear and explicit provision which would displace the presumption against retrospectivity.

[19] Dr Kellie concludes her argument by submitting that R v Muller was the operative law at the time the defendant committed his current offence, and therefore that I should find that the defendant was not amenable to the current provisions of Penalties and Sentences Act ss.146 and 147, despite having committed the current offence during the extended operational period of the suspended sentence originally imposed on 15 November 2005.

[20] As is by now no doubt obvious from the summary of arguments which I've outlined, I am not assisted by any decision in the Court of Appeal on this specific issue.

In my view, the amendment to Penalties and Sentences Act s.147 operative as of 1 December 2008 (and the associated amendments to earlier sections) was not simply a procedural amendment.  It clearly affected substantive rights ie whether or not a defendant is liable to serve all or some portion of a prison sentence otherwise subject to suspension.  It is clearly amending legislation which affects an "existing right or obligation" (see Rodway v R, p.518).

[21] Consequently, as a substantive law amendment, rather than a procedural law amendment "… it is presumed not to have a retrospective effect… unless the intention for it so to apply appears with reasonable certainty."  (R v GT, per Atkinson J at para 26).

[22] The Explanatory Notes at page 3 speak only of "addressing issues identified [my emphasis] by the Court of Appeal in R v Muller [2005] QCA 417" and at page 27 that "the amendments to sections 146, 146A and 147 clarify [my emphasis] that a Court may deal with an offender who re-offends during an extended operational period of a suspended sentence."

[23] The Amendment Act does not, implicitly or explicitly, seek to impose a retrospective operation with respect to the amended definition of "subsequent offence" in s.147(5) of the Penalties and Sentences Act.

[24] I note also that the Explanatory Notes under the heading "Consistency with Fundamental Legislative Principles" make no reference to any perceived inconsistency (in this respect at least) with “fundamental legislative principles" as contained in the Legislative Standards Act 1992 (see Atkinson J para 30 in R v GT [2005] QCA 478.)

[25] I conclude therefore that there is no clear intention for the amendment to be applied retrospectively.  Any ambiguity, especially given the penal consequences to which the defendant is exposed, should be construed to favour non-retrospectivity (see R v GT per Atkinson J para 28).  I do not consider that there is any ambiguity, but if any such ambiguity arguably exists, the non-retrospective operation of the legislation is to be preferred.

[26] Accordingly, I find that the applicable law is the provisions of Penalties and Sentences Act ss.146 and 147, as operative on 17 December 2007, and subject to the effect of the decision in R v Muller.

[27] Consequently I find that the defendant is not liable to be dealt with for breach of the suspended sentences imposed (originally) on 15 November 2005, as extended by the Beenleigh Magistrate's Court on 3 February 2006, by reason of the commission of the offence by him on 17 December 2007 to which he pleaded guilty on 1 May 2009.