This recent appeal was significant in that it raised a unique issue for the court’s consideration, namely whether a trial is flawed in circumstances where, in the intervening period between when an accused is charged and tried, the section creating the offence is repealed. In other words, is a person’s liability to prosecution and penalty adversely affected by a change in the law which was in force at the time when the person was initially charged?
Morrison and Philippides JJA and Boddice J
7 November 2017
The alleged facts are unpleasant and a neat summary will suffice. The appellant had been charged with 16 counts of child sex offences committed against his step-son and was convicted of 11 of those counts after a five day trial. The course of offending was said to have been protracted. –.
The appellant sought to appeal against his convictions on three grounds:
- the verdicts were unreasonable or could not be supported by the evidence;
- there was a miscarriage of justice in that several counts no longer constituted criminal offences at the time of the trial; and
- a miscarriage of justice occurred due to the reception of evidence of sexual acts between the appellant and the complainant when the complainant was aged between 16 and 18, on the basis that such acts were punishable; there was a failure to properly direct the jury as to that evidence. .
The appellant was unsuccessful on all three grounds. This note will deal with ground two.
In late 2016 the Health and Other Legislation Amendment Act 2016 by s 4 abolished s 208 of the Criminal Code which provided for the offence of unlawful sodomy; s 9(1) amended the prescribed age for the purposes of the offence of maintaining an unlawful sexual relationship to 16 years; and lowered the age of consent for anal intercourse to 16. . Those amendments were directly relevant here, since for all acts of sodomy or attempted sodomy with the exception of one, the complainant had been over the age of 16. .
The relevance of the amendments was that for all acts of sodomy or attempted sodomy except one the complainant was over 16. The appellant argued that the effect of the lowering of the age of consent to anal intercourse to 16 was that, at the date of the trial, there was no offence that he could be charged with or convicted, insofar as the bulk of the counts relating to sodomy were concerned. Further, because count 1 (maintaining an unlawful sexual relationship contrary to s 229B of the Criminal Code) depended upon those counts, he contended that he had been wrongly convicted on that count. . The argument was constructed upon the following premise:
- Section 11(1) of the Criminal Code provided that an act was only punishable if it constituted an offence at the time it was done and at the time the accused was charged.
- An accused is charged upon indictment, which in the appellant’s case was when he was called upon to plead to the indictment at trial on 7 November 2016.
- By the time the appellant was charged at the trial acts of anal intercourse with a person over 16 years old were no longer criminal offences.
- Accordingly, the indictment was defective in that it charged counts that were no longer offences.
- As such the trial was flawed and the appellant suffered a miscarriage of justice by reason of his being put on trial on those counts.
- No-one at the trial adverted to the effect of the relevant amendments. The appellant was denied a proper chance to defend the case. .
In the Crown’s view, s 11(1) of the Criminal Code did not operate to excuse the appellant from liability and it would be erroneous to read the section as restricting the word “charge” to the time when an indictment is presented in circumstances where various other provisions of the Criminal Code show that a person is “charged” prior to arraignment of the indictment. .
In considering the limbs of s 11 the court commented that the critical issue was that the acts must constitute an offence when the person is charged with the offence. The appellant argued that occurs for the first time when an accused is called upon to plead to an indictment; whilst the Crown argued that can occur at an earlier juncture. . As a matter of construction and having regard to the operation of a series of provisions in the Criminal Code and the Justices Act 1886 from which one can “safely conclude” that the charge takes place before the indictment is presented at trial, the court ultimately preferred the latter approach. It noted as follows:
- Section 20 of the Acts Interpretation Act 1954 indicates a clear legislative intention that its operation is not set aside by s 11 of the Code. .
- Specifically, s 20(2)(c), (d) and (e) of the Acts Interpretation Act displace the notion that the repeal of an Act might affect:
(c) a … liability … accrued or incurred under the Act; or
(d) a penalty incurred in relation to an offence arising under the Act; or
(e) an investigation, [or] proceeding … in relation to a … liability or penalty mentioned in paragraph (c) or (d). .
- At the time when the relevant acts were committed they were recognised as offences under s 208 of the Criminal Code and a prosecution was commenced prior to its repeal. That amounted to a proceeding in relation to a liability or penalty as per s 20(2)(c). As such, pursuant to s 20 of the Acts Interpretation Act the repeal of s 208 did not mean that the prosecution could no longer be maintained, nor that the penalty could not be imposed. (see Deputy Commissioner of Taxation v Price  2 Qd R 316). .
Here, the court found that there was no “real doubt that the appellant was charged upon his arrest … therefore the acts were unlawful when they were done and unlawful when the appellant was charged”. . In any event, as the court observed, the trial indictment was presented subsequent to a successful application to sever charges relating to another complainant. As His Honour Justice Morrison put it, “[the appellant] can hardly take advantage of that application to contend that there were no charges until the trial indictment was presented”. .
In the result the appeal was dismissed. 
A de Jersey