Stephens v The Queen [2022] HCA 31

HIGH COURT OF AUSTRALIA

KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

PETER LEONARD STEPHENS APPELLANT

AND

THE QUEEN RESPONDENT

Stephens v The Queen

[2022] HCA 31

Date of Hearing: 16 June 2022

Date of Judgment: 7 September 2022

S53/2022

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that:

(a) the appeal against conviction on counts 6, 7, and 13 be allowed; and

(b) the verdicts of guilty on counts 6, 7, and 13 be quashed and acquittals be entered on those counts.

3. Set aside order 3 of the orders of the Court of Criminal Appeal of New South Wales and, in its place, order that the sentence imposed on 13 November 2019 be set aside.

4. Remit the matter to the Court of Criminal Appeal of New South Wales for re‑sentencing on counts 1, 2, and 3 only.

On appeal from the Supreme Court of New South Wales

Representation

O P Holdenson QC with J P O'Connor for the appellant (instructed by Macedone Legal)

D T Kell SC with M W R Adams for the respondent (instructed by Office of the Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stephens v The Queen

Criminal law – Sexual offences against child – Presumption against retrospective operation – Where appellant pleaded not guilty on 29 November 2018 to sexual offences against complainant – Where Crown was uncertain whether alleged conduct occurred when s 81 of Crimes Act 1900 (NSW) in force, or when s 81 repealed but s 78K in force – Where s 80AF of Crimes Act came into force on 1 December 2018, allowing prosecution to rely, in relation to entirety of period, on whichever offence carried lesser maximum penalty – Where Crown was granted leave after appellant's trial had commenced to amend indictment to take benefit of s 80AF – Whether s 80AF could apply after an accused's trial had commenced.