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The point of note in this recent matter was whether the two accused could be punished by reference to the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) in circumstances where, while the acts which rendered the defendants liable to punishment were done at the time the VLAD Act was in force, at the time they were charged the Act had been repealed in its entirety. The outcome would directly affect whether the two were liable to additional mandatory penalties. The Court held that the repealed VLAD Act could not be relied upon as a basis to impose additional punishment.
6 October 2021
The primary issue was whether the repealed VLAD Act could be relied upon as a basis to impose the additional punishment on the defendants which was contemplated by s 7 of the VLAD Act. The defendants had been charged with various offences including an offence of assault occasioning bodily harm, under ss 339(1) and 339(3) Criminal Code 1899. . The indictment specifically referred to ss 339(1) and 339(3) of the Criminal Code 1899 and the VLAD Act. . In view of the chronology in the particular case, the operation of s 11(1) Criminal Code 1899 and ss 20(2)(c) and 20(2)(d) Acts Interpretation Act 1954 fell to be examined by her Honour, since the defendants were not charged with the offence until after the repeal of VLAD Act. . In fact, the VLAD Act had been repealed for approximately two and a half years at the time they were charged for the relevant offence (albeit the acts which rendered the defendants liable to punishment were done while the VLAD Act was in force). , .
The defendants sought to argue that, as they had been charged subsequent to the repeal of the VLAD Act, the operation of s 11(1) Criminal Code 1899 meant that they could not be punished for doing the acts the subject of the count since “doing … the act under the same circumstances would [not] constitute an offence under the law in force at the time when” they were “charged with the offence”. .
Section 11(1) provides:
“(1) A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.”
In addition to the above, the question arose as to whether s 20(2) Acts Interpretation Act 1954 “operates to save the additional punishment provided for under the VLAD Act, following its repeal, on the basis that it could be said to be ‘a liability … accrued or incurred under the [repealed VLAD] Act’”. . Section 20(2) relevantly provides:
“(2) The repeal or amendment of an Act does not—
(a) revive anything not in force or existing at the time the repeal or amendment takes effect; or
(b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d) affect a penalty incurred in relation to an offence arising under the Act; or
(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).”
That provision has been examined previously by the courts in a similar but not identical context.
In the matter of R v HXY  QSC 108, the defendants had been charged with the relevant offences prior to the repeal of the VLAD Act, however the indictments were not presented until after the Act’s repeal. There, Justice Douglas held that ss 20(2)(c), 20(2)(d) and 20(2)(e) Acts Interpretation Act 1954 permitted the liabilities and penalties allegedly incurred to continue to be the subject of a proceeding in relation to a liability or a penalty “as if the repeal of the VLAD Act had not happened ”. . Importantly, he also decided that “the law in force at the time of conviction”, for the purposes of s 11(2) Criminal Code 1899, comprised the potential liability saved by operation of s 20(2)(d) Acts Interpretation Act 1954 – namely the mandatory additional penalties provided for under the repealed VLAD Act. That construction was adopted by the Court of Appeal in R v PAZ  3 Qd R 50, 89  in relation to s 208 Criminal Code 1899. .
Her Honour distinguished both cases. . She importantly observed that:
“Section 20(2)(d) provides that the repeal of an Act does not ‘affect a penalty incurred in relation to an offence arising under the Act’. The reference to ‘the Act’ is a reference to the repealed Act – here, the VLAD Act. The VLAD Act did not create any offence(s). It provided for a regime of additional punishment in respect of existing offences created under the Criminal Code.” .
For completeness, her Honour also distinguished the decision of R v JAA  3 Qd R 242, which concerned the VLAD Act, and wherein the Court of Appeal endorsed the reasoning in R v HXY  QSC 108. She noted that in that matter the issue as to the proper construction of s 20(1)(d) Acts Interpretation Act 1954 did not arise and further, the defendant had been charged with the relevant offences, and the indictments had been presented prior to the repeal of the VLAD Act (see at ).
Ultimately her Honour held that s 20(2)(d) Acts Interpretation Act 1954 does not operate to preserve the further punishment mandated under the VLAD Act following its repeal, since it is not a penalty incurred in relation to an offence arising under that Act: see also R v Brancourt (2013) 280 FLR 356, . She also held that in circumstances where the defendants were not charged with the relevant offence until after the repeal of the VLAD Act, s 11(1) Criminal Code 1899 operated to prevent them being punished for doing the acts the subject of the count, in the circumstances alleged by reference to the VLAD Act, due to the fact it is no longer in force. Section 20(2)(c) Acts Interpretation Act 1954 merely applies to save the liability to charge and prosecution, not punishment, and accordingly is not at variance with the operation of s 11(1) Criminal Code 1899. . Here, the additional punishment contemplated by s 7 of the VLAD Act was no longer authorised by any current law, and accordingly, could not be imposed upon the defendants. .
In disposing of the matter her Honour remarked upon the “anomalous, to say the least, nature of the VLAD Act, and the unusual device chosen by the Parliament for the imposition of an additional mandatory punishment regime in respect of offences otherwise lawfully created under separate legislation”. .