Supreme Court New South Wales Medium Neutral Citation: R v Tran [2022] NSWSC 1377 Hearing dates: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Common Law Before: Button J Decision: The iteration of s 23A of the Crimes Act 1900 (NSW) which is to be applied in the trial is the form that existed prior to the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Catchwords: CRIME – Murder – Partial defences – Substantial impairment CRIMINAL PROCEDURE – Pre-trial ruling – Whether s 23A of the Crimes Act in current form or prior form is to apply to murder trial – Where killing occurred prior to commencement of amendment – Where first arraignment occurred after commencement of amendment – Where "trial proper" occurred after commencement of amendment STATUTORY INTERPRETATION – Amendment and repeal – Retrospectivity – Where no transitional provision included in amending Act with regard to adaption of partial defence of substantial impairment – Caution in applying legislation retrospectively without express intendment – Preferred construction is prior form of s 23A of the Crimes Act 1900 (NSW) Legislation Cited: Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121 R v Papanicolaou (No 4) [2021] NSWSC 1698 Stephens v The Queen [2022] HCA 31 Category: Procedural rulings Parties: Rex (Crown) Thanh Tran (Accused) Representation: Counsel: K Jeffreys (Crown) J Manuell SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/83236 REVISED EX TEMPORE JUDGMENT Question 1. A conundrum has arisen as to which version of the defence of substantial impairment, pursuant to s 23A of the Crimes Act 1900 (NSW), should apply in the murder trial that will commence in the formal sense next Monday. 2. The conundrum arises because although Parliament, with regard to the relevant amending legislation (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)), inserted a number of transitional provisions, for a reason that is obscure to me, did not insert a transitional provision with regard to this question. 3. I might add that my understanding is that the partial defence is the fulcrum of the trial and whether or not it is established on the balance of probabilities, including what I call the normative question or value judgment (to be found in old and new s 23A(1)(b) of the Crimes Act) of whether reduction of liability from murder to manslaughter is warranted. Chronology 1. The date of the killing - I use that term because I do not understand it to be disputed that a homicide took place - is alleged to be 14 March 2019. 2. The legislation under consideration commenced on 27 March 2021. 3. The date of the first arraignment in this Court was 10 December 2021. 4. The date upon which the trial proper, with the accused being arraigned before the jury panel, will commence is next Monday, 19 September 2022. Analysis 1. Wright J recently delivered a decision which found in favour of the old version of the defence being the applicable one: see R v Papanicolaou (No 4) [2021] NSWSC 1698. Certainly, with respect, I think the reasoning there is apposite. But it is noteworthy that the chronology in that case was a little different, in that the first arraignment in this Court in that matter occurred before the date of the commencement of the legislation. So, in a sense, because the trial, broadly defined, had commenced before the legislation commenced in Wright J's matter, that was a stronger set of circumstances in favour of the old version of the partial defence. 2. Even so, I think that to apply the new version of the defence to a killing that occurred before the commencement of the legislation would be an unattractive and strange result. I think that it would give rise to the issues that were discussed in Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121, which were to do with changing the elements of an offence retrospectively. 3. Substantial impairment - to the extent that it is a partial defence that, if established, reduces murder to manslaughter - can be thought of as a "carve- out" from murder. In other words, to change the elements of the partial defence indirectly changes, not so much the elements of the offence, but the parameters of the offence. And by that I mean the parameters of which homicides fall within the legal definition of murder, and which fall within the legal definition of manslaughter. 4. Speaking generally, an intention to change the parameters of an offence retrospectively, in the absence of a clear transitional provision, is an intention that one would not impute to Parliament lightly: see generally Stephens v The Queen [2022] HCA 31. 5. Indeed, as senior counsel for the accused indicated, the oddity of such an outcome has a practical application here. That is because, well before the new legislation commenced on 27 March 2021, all sorts of preparations were undertaken by both parties with regard to the old version of the partial defence. 6. In other words, to have to "change gears" suddenly, after perhaps months of preparation and expenditure of time, money, and effort, itself speaks to the strangeness of a retrospective reading in this context. 7. The other aspect is that I have enquired of the parties whether there could be any sense in which the old or new version is advantageous or disadvantageous to the accused. I only made that enquiry because I think it is conceivable that, in some circumstances, that question could inform the question of statutory interpretation as to the degree of retrospectivity, if any, that attaches to a change to the criminal law. 8. None has been identified. With respect, that is unsurprising because, speaking generally, it has been understood, I think, that the changes to s 23A of the Crimes Act were more in the nature of a tidying-up of out of date terms, and a focus perhaps on expressing things in terms with which psychiatrists and other medical experts were more comfortable. Conclusion 1. In short: the parties are agreed that the answer to the conundrum is that the old version of the definition of substantial impairment is the one that we must apply in the trial. Neither party has pointed to any disadvantage that would accrue to it if that statutory interpretation were to apply. To repeat: I think it would be a very strange outcome if, in the absence of an explicit transitional provision, one were to read amending legislation as having changed the parameters of an offence that occurred almost precisely two years before the commencement of that legislation. 2. For all of those reasons, I accept the joint position of the parties. Subject to any further issue, I propose in the trial to direct the jury in terms of the old version of s 23A of the Crimes Act. ********** Amendments 18 October 2022 - Removed publication restriction 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: 18 October 2022