District Court New South Wales Medium Neutral Citation: R v Zekry Bishara [2022] NSWDC 291 Hearing dates: 19 July 2022 Date of orders: 19 July 2022 Decision date: 19 July 2022 Jurisdiction: Criminal Before: Judge J Smith SC Decision: See [18] Catchwords: CRIME — Directions to jury — commencement of the "hearing of the proceedings" — whether new consent directions are applicable Legislation Cited: Crimes Act 1900 Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 Criminal Procedure Act 1986, ss 292 – 292E, item 117 Sch 2 Evidence Act 1995 Cases Cited: Director of Public Prosecutions v Day [2022] NSWSC 938 GG v The Queen (2010) 79 NSWLR 194; [2010] NSWCCA 230 Lee v NSW Crime Commission (2013) 251 CLR 196 R v Janceski (2005) 64 NSWLR 10 R v Pearson (NSWCCA, 5 March 1996, unreported) State of New South Wales v Kaiser [2022] NSWCA 86 Category: Consequential orders Parties: Office of the Director of Public Prosecutions Zekry Bishara (Accused) Representation: Counsel: Mr C Triscari for the Crown Mr T Kent for the Accused Solicitors: Director of Public Prosecutions Sydney Criminal Lawyers File Number(s): 2021/64829 Publication restriction: Non-publication order on complainant's identity. EX TEMPORE Judgment 1. A question arises in this trial whether the amendments to the Criminal Procedure Act 1986 – in particular, the insertion of ss 292 to 292E, which are found in subdiv (3) of pt 5 of that Act, brought about by the enactment of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 apply in this matter so that I am, if other matters are satisfied, required to give certain directions to the jury about the issue of consent. 2. The transitional provisions relating to these provisions are found in item 117 of sch 2 of the Criminal Procedure Act, which states: "An amendment made to this Act by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 extends to proceedings for an offence committed, or alleged to have been committed before the commencement of the amendment, but not if the hearing of the proceedings began before the commencement of the amendment." (emphasis added) 1. The amendment took effect on 1 June 2022. 2. The accused was first arraigned in this Court in November of 2021 and was arraigned for the purposes of this trial before a jury panel on Tuesday 12 July 2022. 3. It is submitted on behalf of the accused that the hearing of the proceedings began when he was first arraigned in this Court which was a date before the commencement of the amendment and for that reason, the amendments made by the amending Act do not apply. 4. The Crown, on the other hand, submits that the hearing of the proceedings began when the accused was arraigned before the jury panel, in other words, at the time the judges of the fact were to be finally engaged. 5. There is no authority directly on this point, which is not surprising given that the amendments were relatively recent. However, counsel for the accused has brought my attention to the decision of GG v The Queen (2010) 79 NSWLR 194; [2010] NSWCCA 230 in which the Court of Criminal Appeal (Beazley JA, Buddin J and Barr AJ agreeing), decided an issue raised by the amendment to the Evidence Act 1995, particularly the insertion of s 165B into that Act. The transitional provisions relevant to that amendment provided that the amendment did not apply in relation to proceedings "the hearing of which began before the commencement of the amendment": see sch 2 pt 3 cl 17 of the Evidence Act quoted at [50] by Beazley JA. Although the question before the Court on that occasion was different to the one before me, it is clear that it was similar in that those transitional provisions refer to a "hearing" and "proceedings", as does cl 117 of sch 2 of the Criminal Procedure Act. 6. In that case, after a detailed survey of the law relating to the commencement of criminal proceedings, her Honour Beazley JA found, at [100], that the position on the authorities was not clear. However, on the facts, her Honour found that it was not necessary to finally determine whether a trial, that is, a criminal proceeding on indictment, commences at the time of the first arraignment regardless of whether that was in the presence of the jury to be empanelled. Her Honour went on, at [101]-[102], to say: "[101] Notwithstanding that perhaps unresolved question whether a trial commences on the first arraignment, the indictment having been presented at that time, or when the indictment is presented and the accused person arraigned in front of the jury, as Howie J held in Janceski, these authorities demonstrate that when legislation such as the Evidence Act transitional provision cl 117 refers to 'proceedings of hearing of which began before the commencement of the [provision or Act]', the intended reference is to the hearing of the particular proceeding such as the trial itself. [102] The Criminal Procedure Act ch 3 pt 3 div 2 contains those provisions which govern the commencement of proceedings on indictment. By contrast, the evidence is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, I am of the opinion that on its proper construction, it is referring to the hearing of a particular proceeding, in this case, a trial on indictment." 1. Leaving aside the first part of [102], that paragraph appears to provide an answer to the question here and it seems to me to be consistent also with what was said (referred to by her Honour, at [87]–[88]) in the judgment of Gleeson CJ in R v Pearson (NSWCCA, 5 March 1996, unreported) in the Court of Criminal Appeal and Howie J in R v Janceski (2005) 64 NSWLR 10. In the latter case, His Honour said at [219]: "The presentation of the indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial." 1. At first glance, therefore, it appears that what Beazley JA says at [102] of GG would apply in this case too. However, her Honour drew that conclusion by reference to the difference between ch 3 pt 3 div 2 of the Criminal Procedure Act, which relates to the indictable procedure, and what is found in the Evidence Act. 2. What her Honour said about pt 3 div 2 of the Criminal Procedure Act; namely, ss 126 to 133, suggests a broad question relating to the whole of the jurisdiction of the District Court in respect of criminal proceedings and would support the submission by the accused that the hearing commences upon the first presentation of the indictment and arraignment of the accused. 3. The issue is clouded somewhat, however, by the fact that, like provisions in the Evidence Act, the amendments brought by the amending Act are found in a chapter of the Criminal Procedure Act; namely, ch 6 which relates to evidentiary matters. The new provisions brought about by the amendment are, in fact, found in pt 5 which is entitled "evidence in sexual offence proceedings". Although, subdiv (3) which we are concerned with, is not in fact directly about evidence at all, but about directions to a jury, which indirectly relate to the evidence that must be considered by the jury. 4. In my view, there is a distinction similar to that that made by Beazley JA at [102] between ch 3 pt 3 div 2 of the Criminal Procedure Act and pt 5 of the Act in general and subdiv (3), in particular. What is important is that subdiv (3) is directed to particular matters which are to be complied with by a judge in a trial, and not only at the end of the trial in summing up, for example, but at any stage through the trial. The directions clearly must be made either to a jury or if it is a judge alone trial to the judge themself. 5. This strongly supports the conclusion that the directions in relation to consent as brought into the Criminal Procedure Act refer to the hearing of a particular proceeding, that is the trial, which is commenced by the presentation of an indictment and the arraignment of the accused before the jury panel as referred to by Howie J in Janceski. 6. It is then necessary to consider whether anything else might impact on that conclusion. The relevant principles of statutory construction were summarised recently by Simpson AJA in State of New South Wales v Kaiser [2022] NSWCA 86 at [57] (Bell CJ and Beech-Jones JA agreeing) and referred to by Garling J even more recently in Director of Public Prosecutions v Day [2022] NSWSC 938 at [27]. 7. The relevant matter relied upon by counsel for the accused, is the fifth and sixth principle enunciated there by Simpson J. That is: "5. A statute will not be construed so as to abrogate or to curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment. 6. Legislation that affects personal liberty will be given a strict construction." (citations omitted) 1. In my view, those principles do not apply to the construction of the transitional provision. The question of directions to be given to a jury do not effect a change to the substantive law such as to change the nature of a particular offence and so do not affect any rights or freedoms. One might compare the way in which the transitional provisions have related to the impact upon the consent provisions in the Crimes Act 1900 in that respect [1] . Rather, what is done here is to impact upon the way in which consent is to be explained to a jury or other tribunal fact; namely, a judge sitting alone. 2. In my view, the contextual approach to the construction of item 117 of sch 2 of the Criminal Procedure Act leads to the result in this case that the directions required to be made under s 292 and following of the Criminal Procedure Act do apply. 3. For those reasons, subject to any further submissions about the content of those directions, I will have regard to those provisions for the purpose of summing up to the jury. ********** Endnote 1. Crimes Act 1900, Sch 11 Pt 29 cl 91. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2022