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). The Accused's construction of clause 20 Statutory Interpretation 1. Paragraphs 10 and 11 of the Defence written submissions are set out below: "…10. Clause 20 says that the amendment "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". "The hearing of the proceedings" refers to the "proceedings for an offence" mentioned earlier in the clause. The concept of a "hearing" is therefore subsequent to the concept of "proceedings for an offence". 11. The gist of the accused's position is that there is no textual or contextual reason to read the word "proceedings" narrowly so that it is confined to the substantive proceedings or trial in the proceedings"…". 1. The accused submits the difference between the laying of a charge and the hearing of a proceeding is the only distinction that the clause recognises. Defence counsel submits the clause does not distinguish between kinds of proceedings, namely between procedural and substantive proceedings, and that this is evident on any reading of the text of the amending Act. 2. Paragraphs 14 to 18 of the defence written submissions are set out below: 14. The absence of this distinction makes sense since proceedings of a procedural nature can be practically significant for the conduct of a trial. In many cases, especially those concerning the admissibility of evidence and the manner in which evidence is to be adduced, they can be time-consuming. The present case is a clear example of this where, given the complainant has died, had the prosecution failed to overcome the s65/s67 application arguably the Crown's case was doomed to fail. 15. With this significance in mind, it is hard to see any reason why the hearing of a procedural as distinct from a substantive proceeding should be removed from the clause's operation. 16. These textual considerations are reinforced by background usage of "proceedings" as well as "hearing". In the first instance, there is ample authority to the effect that criminal proceedings begin with the indictment of the accused: see, eg, R v Taylor [2003] NSWCCA at [150] (Bell J). The provision in issue in Taylor recognised the expansiveness of the concept of a proceeding, by stipulating that it did not "apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division". The reference to committal proceedings shows how the term can be used in a setting apart from a trial. 17. As for whether the term "hearing" modulates the term "proceeding" in favour of the prosecution's position, there is no background matter to suggest that it would. Throughout the CPA itself, there are numerous references to the "hearing" of a procedural proceeding as opposed to the hearing of a trial: see, eg, sections 54, 57 (concerning committal proceedings), 82 (concerning applications made during committal proceedings), and 134(2) (concerning "pre-trial hearings"). So the concept of a "hearing" is clearly not limited to the hearing of a trial and can be used in connection with other proceedings. Once again, this just seems to be common sense, and there is nothing in the Amending Act to suggest that the term "proceedings" has been used there in any special or more limited sense. 18. Indeed s130 of CPA reads: "… (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled-- (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section…" s 130 of the Criminal Procedure Act is set out below: 130 Trial proceedings after presentation of indictment and before empanelment of jury (2) In this section, court means the Supreme Court or District Court. (3) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (4) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled-- (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (5) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (6) This section applies to proceedings in respect of indictments presented after the commencement of this section. 1. In oral submissions the Crown had submitted to the effect that there had to be some point to the words "hearing of", and it was not used for trial alone but would cover both District Court and summary matters. 2. Mr Mulligan for the accused submitted "what is to be captured requires a textual analysis of the transitional legislation read in the context of the amending Act." He conceded that there are different amending provisions between those changes to the Crimes Act and the Criminal Procedure Act, which is a matter to which I shall return, that is the distinction between substantive and procedural amendments. The former may be said to be not retrospective, or usually not retrospective unless clearly stated to be so, whereas the procedural matters may be, or can be in their operation, retrospective. 3. Mr Mulligan also referred the Court to the recent decision of the High Court of Australia in Stephens v R [2022] HCA 31 where the High Court was considering the application of s 80AF of the Crimes Act 1900 and whether it applied to a criminal trial which had already commenced when there was no transitional provision. Relevantly at [7] the Court noted, "…the question of when a trial begins may have a different answer for different purposes..." In his written submissions, Mr Mulligan set out part of [8] of that decision. 4. The Crown distinguishes Stephens, noting that that was a matter where there was no transitional provision, and I did not find Stephens particularly helpful in looking at the analysis of the transitional legislation. However, I will return to Stephens for another purpose. 5. The Crown submits here that a similar transitional provision was considered in GG v R (2010) 79 NSWLR 194. In that matter, the Court of Criminal Appeal, their Honours Beazley JA, Button J and Barr AJ agreeing, decided an issue raised by an amendment to the Evidence Act 1995, particularly the insertion of s 165(b) in that Act and the transitional provisions relevant to that amendment provided that in the schedule. Beazley JA stated "an amendment made to this Act by the amending Act does not apply in relation to proceedings, the hearing of which began before the commencement of the amendment." 6. Her Honour went on at [101] to [102] as also set out in the Crown's written submissions at para 20: 101. Notwithstanding the 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 Jancevski, these authorities demonstrate that when legislation, such as the Evidence Act transitional provision cl 17, refers to "proceedings the 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 Act 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. The defence distinguishes GG, again, I think properly so, saying that GG was concerned with the meaning of the phrase "commencement of proceedings" in an amendment after the Evidence Act 1995. They submit that the decision would distinguish at the outset between recent similar amendments made to the Evidence Act (whose operation was in dispute) and to the Criminal Procedure Act (whose operation was not in dispute), and eventually reaching a conclusion about the phrase at [101] or [102]. 2. They submitted that the timing of a proceedings' commencement depended on the sort of proceeding that was relevant to the function of the Evidence Act, which in that case was a "trial on indictment". Defence further submit the holding of the case is therefore confined to legislation whose operation is not relevant to this case, and that it does not comment on any more general meaning of the words "hearing" or "proceeding", or indeed their meaning in the Criminal Procedure Act. 3. One of my brother judges J Smith SC DCJ determined this question recently in the case of R v Zekry Bishara [2022] NSWDC 291 where his Honour found that ss 292 to 292E of the Criminal Procedure Act applied to a trial where the accused had first been arraigned in November 2021, and was subsequently arraigned before a jury panel on 12 July 2022, that is after the commencement on any view of 1 June 2022. 4. After referring to GG, his Honour stated the following with regard to the applicability of the above provisions at [9] to [14]: 9. 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." 10. 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. 11. 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. 12. The issue is clouded somewh at, 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. 13. 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. 14. 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. 1. I agree with the reasoning of Judge Smith. I would certainly believe it is not wrong, and I note the following from Stephens (the plurality of Keane J, Gordon J, Edelman J, and Gleeson J at [29]) (footnotes omitted) under the heading "Expectations and the temporal operation of legislative provisions": 29. There is considerable confusion surrounding the nomenclature of retrospective and retroactive legislative provisions. On one view, they are separate concepts. A retrospective provision "operates for the future only" albeit that it looks backwards and "imposes new results in respect of a past event". Thus, for the future only, it "changes the law from what it otherwise would be with respect to a prior event". By contrast, a retroactive provision operates backwards and has been described as one that "changes the law from what it was". On another view, there is only one category. All these laws can loosely be described as retrospective, although retroactive laws are the only "true" retrospective laws. Laws that operate for the future only, but impose new results in respect of past events, have been said to be retrospective in an "extended" sense, although that sense has sometimes been described as "misleading". These debates are not concerned with matters of principle. The distinctions between retrospective and retroactive laws are "terminological, not conceptual". However described, both are capable of defeating reasonable expectations concerning existing rights, although retroactive laws will generally be more pronounced in this effect. These distinctions should not distract from the underlying principle described below, concerning how to interpret the temporal operation of legislation. 30. Another distinction is sometimes drawn between substantive and procedural provisions. In Rodway, this Court referred to the presumption "that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction". This Court explained that "there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure" as such statutes "invariably operate prospectively". 31. This Court in Rodway recognised, however, that there was an ambiguity in the categorisation of some laws as procedural, saying that "the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural ... may operate in such a way as to affect existing rights or obligations" and, as such, would not be "merely" procedural. But even this distinction, which requires a difference between procedural laws and "merely procedural" laws, is not a stable basis for deciding whether to apply a presumption against retroactivity. The point of principle underlying the distinction is that laws which might be said to be procedural can have such a significant effect in disturbing settled expectations that the presumption will apply, denying an otherwise clear retroactive effect in relation to an extant trial. An example is the law considered by this Court in Newell v The King that amended the procedure of conviction by a unanimous jury to permit conviction by a majority of ten jurors. The principle "that a statute is not presumed to be retrospective" was applied because the law was "not a mere matter of procedure". The words of the legislation that said "on the trial of any criminal issue" were interpreted to mean "on the trial of any criminal issue joined after the commencement of the Act". 1. Their Honours then continued at [33], 33. Shorn of difficult‑to‑draw distinctions and difficult‑to‑apply nomenclature, the underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations. As H L A Hart explained, "the reason for regarding retrospective law‑making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts". The reasonable expectations of the public give rise to a presumption against interpreting the enactments of Parliament in a manner "that would conflict with recognized principles that Parliament would be prima facie expected to respect". In this context, what is a "reasonable expectation" will necessarily be informed by fundamental principles of criminal law, the accusatorial process, and the law in force at the relevant time. 34. The force of this presumption may depend upon the circumstances: "[t]he inhibition of the rule is a matter of degree, and must vary secundum materiam [according to the circumstances]". The more fundamental the rights, and the greater the extent to which they would be infringed by a retrospective or retroactive law, the less likely it is that such an intention will be ascribed to Parliament. Conversely, the less a provision would defeat reasonable expectations, and the less injustice it would cause, the less force there will be in the presumption against retrospective operation. Thus, the force of the presumption is reduced where the "wrongful nature of the conduct ought to have been apparent to those who engaged in it". And the presumption will often have little or no force in relation to future trials where the law affects rights and interests only slightly and indirectly, such as by the common iterative process of adjusting legal rules of evidence or procedure in the conduct of trials. 1. I will now turn to the second reading speech by the Attorney General Mr Mark Speakman, moved at 3:43pm on 20 October 2021. The Attorney there set out a number of matters over a number of pages explaining the operation of these new consent laws, and then at p 8 of the printed version, the Attorney said, "I now turn to Schedule 2 of the bill which contains amendments to the Criminal Procedure Act 1986. Schedule 2 item [3] of the bill will introduce five new jury directions about consent, for judges to give at trial to provide appropriate guidance to the jury. The purpose of these directions is to address common misconceptions about consent and to ensure a complainant's evidence is assessed fairly and impartially by the tribunal of fact". 1. The Attorney then set out what those directions are and their specific purposes. The Attorney then continued a little later: "The bill will commence by proclamation. Proclamation is intended to occur approximately six months after assent to provide agencies time to implement the reforms – including undertaking training, updating educative materials, and technical updates. The Department of Communities and Justice has formed an implementation and monitoring working group to oversee this process". 1. Pausing there, although the bill was given assent, there was a time period envisaged in which the reforms would be in effect publicised, noting that there were amendments to the Crimes Act and amendments to the Criminal Procedure Act, and the amendments to the Crimes Act made changes to offence provisions. The Attorney continued, "Schedule 1 item [25] provides that the amendments made by the bill to the Crimes Act will only apply in relation to an offence committed, or alleged to have been committed, on or after the commencement of those reforms." 1. Pausing there, that is clear from the words of the schedule, and I set out there what is in para 25 in Sch 1 of the amendments: "An amendment made to this Act by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 applies only in relation to an offence committed, or alleged to have been committed, on or after the commencement of the amendment." 1. The Attorney then continued, Schedule 2 item [20] provides that the amendments made by the bill to the Criminal Procedure Act apply to proceedings that commence on or after the commencement of those reforms. 1. The Attorney then set out some other matters. 2. What is set out there in the second reading speech are the relevant amendments to the Criminal Procedure Act which the Attorney said apply to proceedings that commence on or after the commencement of these reforms. However, the actual words of the amendment are as I set out before, and I will repeat, "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." 1. The Crown says that the words "hearing of", that is before "the proceedings began" have work to do. This raises the presumption against surplusage. 2. The learned authors of Interpretation (Second Edition) refer to that presumption as follows: (see Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020 at [5.160]): "A Court must strive to give effect to every word of a provision and every provision of an Act. In other words, where two constructions are open, a construction which avoids 'surplusage' is to be preferred. This is an ancient proposition. It applies not only within provisions, requiring all words to be given effect if possible, but also to the Act as a whole. It is an aspect of the principle that an Act is to be construed as a whole together with a proposition that it is 'improbable that the framers of legislation could have intended to assert a provision which has virtually no practical effect'. The principle applies with greater force to a provision which has been added by amendment". I have omitted the footnotes, but they are many. 1. Turning back to the issue at hand, in my view, the words "hearing of" do have work to do. Without those words, the transitional provision would provide that the relevant amendment extends to proceedings for an offence committed or alleged to have been committed before the commencement of the amendment, but not if the proceedings began before the commencement of the amendment. 2. It is quite clear that this Court is seized of jurisdiction when the indictment is filed and the accused is arraigned. That has happened in this matter. 3. However, the words "hearing of the proceedings", and the reasons set out by my brother Smith J in Bishara, and noting the obiter dicta set out by the High Court in Stephens, and also having regard to the public policy represented in having the directions to the jury explain certain matters about the experiences shown, I am of the view that juries should be so directed as the words "if the hearing of the proceedings began before the commencement of the amendment" refer to a trial before a jury or a judge alone, as the Crown has submitted. And I will give directions at an appropriate time as the parties may wish me to, or as I determine, in accordance with that division under the Criminal Procedure Act, that is, the new directions in s 292A to 292E of the Criminal Procedure Act. 4. I believe what the High Court set out in Stephens is that the presumption against retrospective operation in this case will have less force, because it is really only indirectly affecting rights. 5. In my view, such directions could have always been given to a jury by a judge, if not in form of directions, then in form of telling the jury that, in the judge's experience, although it is a matter for the jurors themselves, they might take into account those matters set out in the directions, and it is limited to rules of procedure. 6. I so order. ********** 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: 02 December 2022