R v Laybutt [2022] NSWDC 601

District Court New South Wales

Medium Neutral Citation: R v Laybutt [2022] NSWDC 601 Hearing dates: 18 October 2022 Decision date: 18 October 2022 Jurisdiction: Criminal Before: McHugh SC DCJ Decision: Application granted. ss 292 to 292E of the Criminal Procedure Act applies Catchwords: CRIMINAL PROCEDURE — Directions to jury—consent – sexual intercourse without consent Legislation Cited: Crimes Act 1900 (NSW) Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 Criminal Procedure Act 1986 (NSW) Evidence Act 1995 Cases Cited: GG v R (2010) 79 NSWLR 194 R v Zekry Bishara [2022] NSWDC 291 Stephens v R [2022] HCA 31 Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020 at [5.160] Category: Procedural rulings Parties: Rex (Crown) Benjamin James Laybutt (Accused) Representation: Crown: Mr Walkowiak, solicitor advocate

Defence: Mr Mulligan, of counsel File Number(s): 2020/00271401 Publication restriction: Statutory non-publication order regarding the identity of complainant.

JUDGMENT

Application for directions pursuant ss 292A to 292E of the Criminal Procedure Act 1986 (NSW) 1. HIS HONOUR: This is one of three ex tempore decisions after hearing applications through the course of yesterday. 2. The accused, Benjamin Laybutt, is charged with three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (hereinafter "Crimes Act"). 3. The Crown alleges the above offences occurred on or about 14 September 2020. I am told the key issue in this trial is consent. 4. The evidence on the application, such as it is, was three MFIs: Crown written submissions (MFI 1), the cases that were handed up we marked for abundant caution (MFI 2), and the written submissions from the defence (MFI 3). Otherwise, the parties spoke to their written submissions with helpful assistance, and I thank the parties. 5. The Crown seeks in this matter to give directions pursuant to ss 292A, 292B, 292C, and 292E of the Criminal Procedure Act 1986 (NSW) (hereinafter "Criminal Procedure Act"). These sections were inserted into the Criminal Procedure Act by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 and commenced on 1 June 2022. They involve amendments to offence provisions and procedural provisions, to which I will return. The accused submits that the provisions do not apply to this trial because the accused was arraigned prior to 1 June 2022. 6. Relevantly, the subdivision (Subdivision 3, Div 1, Pt 5 Criminal Procedure Act) applies to a trial of a person for an offence against s61I of the Crimes Act. That is so because of s 292(1) of the Criminal Procedure Act. At least that is what the Crown's position is. 7. Pursuant to s 292(2) in a trial to which this subdivision applies, the judge must give any one or more of the directions set out in ss 292A and 292E, known as a consent direction, if there is a good reason to give the consent direction or if requested to give the consent direction by a party to the proceedings, unless there is a good reason not to give the direction. 8. I will there set out the procedural history from the Crown's written submissions: "… 10. On 17 September 2020, the accused was charged in relation to the above matter. On 4 March 2021, the accused was committed for trial from the Downing Centre Local Court. 11. On 9 April 2021, the accused first appeared in the District Court and was arraigned in relation to the above three counts and entered pleas of not guilty. The matter was adjourned for trial to commence on 18 October 2021. 12. On 12 October 2021, the complainant for the above three counts died. 13. On 14 October 2021, the Court granted the Crown application to vacate the trial listed to commence on 18 October 2021. 14. On 25 November 2021, the Crown advised the Court that the above matter would still proceed to trial despite the death of the complainant and the matter was listed for pre-trial argument on 4 March 2022 in elation to the admissibility of the complainant's statement pursuant to s65(2), Evidence Act 1995 ('The pre-trial argument') and for trial on 17 October 2022. 15. On 4 March 2022 the pre-trial argument was not reached by the Court and adjourned until 4 July 2022 for pre-trial argument. The pre-trial argument was further adjourned on 4, 12 and 26 July 2022. 16. On 9 September 2022, her Honour Musgrave DCJ heard the pre-trial argument. On 30 September 2022, the Crown's application to admit the complainant's statement pursuant to s65(2), Evidence Act 1995 was granted by her Honour …" 1. The transitional provision in Sch 2 of the Criminal Procedure Act states the following: "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 amendment." (emphasis added) 1. The Crown submits that a reference to when the "hearing of the proceedings began" is a reference to when the substantive trial commenced and is not a reference to when the accused was charged, nor when the accused was arraigned. That is the subject of the dispute between the parties. 2. The defendant's written submissions submit that the answer turns on the meaning of the composite phrase "hearing of the proceedings", and more specifically on whether the proceedings concern; a) the entire set of proceedings beginning with the laying of the indictment, or b) only the "substantive" evidential proceedings (or the trial).