Supreme Court New South Wales Medium Neutral Citation: R v Glenn (a pseudonym) [2015] NSWSC 1888 Hearing dates: 7 December 2015 Decision date: 07 December 2015 Jurisdiction: Common Law Before: Adamson J Decision: The applicant is required to show cause pursuant to s 16A of the Bail Act 2013 (NSW) since he has previously been convicted of a serious personal violence offence within s 16B. Catchwords: CRIMINAL LAW – bail – whether applicant for bail required to show cause under Bail Act 2013 (NSW) – definition of "serious personal violence offence" – whether conviction for an offence which is no longer in the same terms and has been renumbered attracts the show cause requirement CRIMINAL LAW – offence of kidnapping – nature and effect of changes in 2001 – whether s 90A, 85A and 86 amount to the same offence for the purposes of the definition of "serious personal violence offence" STATUTORY INTERPRETATION – effect of Interpretation Act 1987 (NSW) – ambulatory nature of provisions – relevance of legislative purpose – use of present tense to be examined in context – effect on definition of repeal and remaking of offence – whether contrary intention established to displace effect of ss 5 and 68 of Interpretation Act Legislation Cited: Bail Act 2013 (NSW), s 16B Bail Act 1978 (NSW), s 9B Crimes Act 1900 (NSW), Pt 3, ss 61J, 79, 85A, 86, 90A Crimes (Amendment) Act 1961 (NSW), s 2 Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW), Sch 1, cll 5, 6 Crimes Legislation Amendment Act 2012 (NSW), Sch 1, cl 3 Criminal Legislation Amendment Act 2001 (NSW), Sch 3, cl 2 Interpretation Act 1978 (NSW), ss 5, 33, 35, 68 Public Works Act 1912 (NSW), ss, 126, 126A Cases Cited: Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220 Davis v Regina [2006] NSWCCA 392 Texts Cited: Pearce and Geddes, Statutory Interpretation, (7th ed, 2011, LexisNexis Butterworths) Second Reading Speech to the Criminal Legislation Amendment Bill 2001 (NSW) (Legislative Assembly, 17 October 2001, page 1758) Category: Principal judgment Parties: Glenn (a pseudonym) (Applicant) Regina (Crown) Representation: Counsel: E Fletcher (Solicitor) (Applicant) E Freelander (Solicitor) (Crown) Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2015/257081 Judgment Introduction 1. Glenn (a pseudonym) (the applicant) was charged with an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). The Crown contended that, by reason of s16B(1)(c) of the Bail Act 2013 (NSW), he was required to show cause why his detention was not justified as he had previously been convicted of a "serious personal violence offence" as defined in s 16B(3) of the Bail Act. The applicant had previously been convicted of an offence against s 90A of the Crimes Act, for which he was sentenced to a term of imprisonment of five years with a non-parole period of two years and six months. 2. The applicant submitted that s 16B(1)(c) did not apply as he had not previously been convicted of a "serious personal violence offence" as defined. Accordingly, it is necessary to decide this question before hearing the applicant's bail application. Relevant legislative provisions The Crimes Act 1. In 1961, s 90A was inserted into the Crimes Act by s 2(a) of the Crimes (Amendment) Act 1961 (NSW). It remained in the Crimes Act until it was repealed by cl 6 of Sch 1 of the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW) (the 2001 Amending Act). The statutory offences prior to that time were summarised by Howie J in Davis v Regina [2006] NSWCCA 392 at [34]-[38]. His Honour also considered the purpose of s 90A and the way in which it was interpreted at [39]-[51]. 2. Section 90A provided: "90A Kidnapping Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to imprisonment for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to imprisonment for fourteen years. This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained." 1. The 2001 Amending Act relevantly provided, by cl 5, Sch 1: Division 13A Kidnapping 85A Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if: (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1): (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. (4) Alternative verdicts If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly. (5) A person who takes or detains a child is to be treated as acting without the consent of the child. (6) A person who takes or detains a child does not commit an offence under this section if: (a) the person is the parent of the child or is acting with the consent of a parent of the child, and (b) the person is not acting in contravention of any order of a court relating to the child. (7) In this section: child means a child under the age of 16 years. detaining a person includes causing the person to remain where he or she is. parent of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. taking a person includes causing the person to accompany a person and causing the person to be taken. 1. Clause 6 of the 2001 Amending Act provided: "Section 90A Kidnapping Omit the section." 1. The Second Reading Speech to the Bill that became the 2001 Amending Act (Hansard, Legislative Assembly, 17 October 2001, p 1758) explained the replacement of s 90A by s 85A as follows: "The second important legislative reform is related to the offence of kidnapping. The bill introduces "in company" as an aggravated element of kidnapping and makes other reforms to the offence of kidnapping. The offence of kidnapping is contained in section 90A of the Crimes Act 1900. The offence provides that a person is liable to 20 years imprisonment if they detain a person for advantage, or 14 years if they prove that the person taken away was liberated without having sustained any substantial injury. The unique structure of this provision places the onus on the accused to prove that no substantial injury was caused to the victim before the lower maximum penalty can be applied. It effectively reverses the traditional structure of offences in aggravation. The structure of this offence has come under judicial scrutiny at various times in the past—notably in the case of Rowe (1996) 89 Appeal Criminal Report 467 by the former Chief Judge at Common Law, Justice Hunt—where the confusion over which offence and maximum penalty applied in certain situations was discussed. A number of cases under section 90A are appealed on the basis of whether the correct maximum penalty was applied, given the injuries in the particular case. The unclear definition of the words "substantial injury" contributes to the lack of certainty as to which maximum penalty should apply. These issues are further confused when there are co-offenders who are sentenced separately. "Substantial injury" has been variously defined as "more than minor or slight, but that it need not be of the serious kind which would constitute it being grievous bodily harm"—Hudson (1985) 8 FCR 228 at 242-243; and "less than total but more than trivial or minimal"—Rowe at 471-472. That may be compared with section 23A of the Crimes Act 1900. Even when an assault has produced minor physical consequences, the court has held that the injury "may well become substantial where the circumstances in which it was inflicted … greatly affect its seriousness"—Rowe at 472. Potential residual psychiatric conditions resulting not just from the actual attack and ensuing injuries but also from the way in which they were inflicted upon the victim have also been taken into account by the court—R v Herceg [2001] NSWCCA 242. Section 90A was inserted into the Crimes Act 1900 in 1961. Its structure, while unique, has proven to be confusing and uncertain. The offence, and others contained within that division of the Crimes Act, are ripe for reform. In order not to deviate from the gangs focus in this bill, the wider reforms to the division will be progressed later this session. Item [5] reverses the structure of the offence of kidnapping and introduces a three-staged aggravated offence of kidnapping. New section 85A will replace section 90A of the Crimes Act. The basic offence of kidnapping, where a person takes or detains another person for advantage without their consent with the intention of holding that person to ransom or obtaining any other advantage, will carry a maximum penalty of 14 years—section 85A (1). An aggravated version of the offence is created in section 85A (2). Where a person commits an offence under section 85A (1) in company, or a person commits an offence under section 85A (1) and at the time of the offence, or immediately before or after the commission of the offence, actual bodily harm is occasioned to the victim, a penalty of 20 years will apply. This provision covers circumstances not only when the offender assaults the victim but also where the victim sustains an injury as a result of an escape attempt. This is consistent with the current application of the "substantial injury" test. The offence replaces the "substantial injury" test with "occasioning actual bodily harm" as an element of aggravation. The latter term is a settled and well-defined term of the criminal law and should clarify confusion over whether an injury was "substantial". A specially aggravated version of the offence is created in section 85A (3), which combines both aggravated elements of the offence. Where a person commits an offence under section 85A (1) in company and at the time of the offence, or immediately before or after the commission of the offence, actual bodily harm is occasioned to the victim, a penalty of 25 years will apply. New section 85A (4) provides a system of statutory alternative verdicts that will ensure that if the jury is not satisfied that the offence of aggravated kidnapping or specially aggravated kidnapping has been proven, a verdict of guilty may be returned if the jury is satisfied that a lesser offence has been proven. In short, the present bill reforms the law of kidnapping by introducing the concept of "in company" to the offence as an element of aggravation, by creating a three-tiered aggravation structure with higher penalties, by re-establishing the traditional onus so the prosecution must prove the matters in aggravation, by replacing the "substantial injury" test with "occasioning actual bodily harm" as an element of aggravation, and by updating the antiquated language of the offence. These reforms will assist in the prosecution of the offence by providing more certainty as to which maximum penalty applies, by providing a more commonly understood definition of "injury", and by sending a clear message to offenders that offences committed by more than one person will be treated more seriously by the courts." 1. Section 85A was renumbered s 86 by cl 2 of Sch 3 of the Criminal Legislation Amendment Act 2001 (NSW). Section 86 was amended by cl 3 of Sch 1 of Crimes Legislation Amendment Act 2012 (NSW) which provided: "Insert after section 86 (1) (a): (a1) with the intention of committing a serious indictable offence, or" 1. Each of ss 90A, 85A and 86 were included in Part 3 of the Crimes Act and each had a maximum penalty of at least fourteen years. The Bail Acts The Bail Act 1. Section 16B of the Bail Act relevantly provides: "16B Offences to which the show cause requirement applies (1) For the purposes of this Act, each of the following offences is a show cause offence: . . . (c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence, . . . (3) In this section: . . . serious personal violence offence means an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more. . . ." The Bail Act 1978 (NSW) 1. Section 9D of the Bail Act 1978 (NSW) (the 1978 Bail Act) (now repealed) relevantly provided: "9D Repeat offenders—serious personal violence offences (1) An authorised officer or court is not to grant bail to a person in respect of a serious personal violence offence if the person is a repeat offender unless the authorised officer or court is satisfied that exceptional circumstances justify the grant of bail. (2) For the purposes of this section, a person is a repeat offender if the authorised officer or court is satisfied that the person has a previous conviction for a serious personal violence offence (other than the serious personal violence offence in connection with which bail is sought). . . . (4) In this section: serious personal violence offence means: (a) an offence under, or mentioned in, section . . . 86 . . . 90A . . . of the Crimes Act 1900, or (b) an offence under section 79, 106, 107, 109, 111, 112 or 113 of the Crimes Act 1900 if the circumstances of the offence involve an act of actual or threatened violence against a person, or (c) an offence of attempting to commit an offence referred to in paragraph (a) or (b), or (d) an offence under the law of the Commonwealth, another State or a Territory or of another country that is similar to an offence referred to in paragraph (a), (b) or (c)." Interpretation Act 1987 (NSW) 1. Section 5 of the Interpretation Act 1987 (NSW) provides: 5 Application of Act (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. (3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument. 1. Section 33 of the Interpretation Act 1987 (NSW) provides: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 1. Section 35 of the Interpretation Act provides: "35 Headings etc . . . (3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being the date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument." 1. Section 68 of the Interpretation Act provides: "68 References to amended or repealed Acts and instruments (1) In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being. (2) Subsection (1) applies to a reference to an Act or instrument: (a) whether or not the reference includes a reference to subsequent amendments of the Act or instrument, and . . . (3) Notwithstanding subsection (1), in any Act or instrument: (a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being, and (b) a reference to an instrument that has been repealed and re-made, with or without modification, extends to the re-made instrument, as in force for the time being, and a reference to a provision of the repealed Act or instrument extends to the corresponding provision of the re-enacted Act or the re-made instrument, as the case may be. . . ." The parties' submissions The applicant's submissions 1. The applicant accepted that an offence against s 61J of the Crimes Act constituted a serious personal violence offence. However, he submitted that an offence under s 90A did not fall within the definition of "serious personal violence office" because the definition referred only to current offences. The applicant contended that the phrase, 'an offence that is punishable' means that the relevant offence provision must be currently in force under Part 3. 2. The applicant contended that the definition of "serious personal violence offences" was a closed category of offences within Part 3 and that the term 'offence' refers to an offence provision under Part 3 as opposed to conduct which could constitute such an offence. 3. The applicant also submitted that there was no current equivalent to s 90A and relied on what he contended were significant differences between s 90A and s 86 as follows: 1. Section 86 requires that the taking or detention occurs without the consent of the victim. This was not a requirement of s 90A. 2. Section 90A provides a defence if the accused claims in good faith to have a right to the possession of the victim. No such defence is available under s 86. 3. Section 90A assumes that the victim sustained 'substantial injuries.' The onus falls on the accused to disprove this circumstance of aggravation. Section 86 places the onus of proving aggravation on the prosecution. 1. He submitted that, while much of the conduct criminalised by s 90A would be caught by s 86 and vice versa, certain conduct could be criminalised by one but not the other. For instance, under s 90A an accused could take/detain a person without his or her consent but avoid conviction provided the accused believed in good faith that he or she had a right to possession of that person. Such conduct would, however, be criminal under s 86. 2. The applicant further contended that the purpose of s 16B(3) of the Bail Act would not be served by an interpretation which included convictions for offences which have been repealed and instanced s 79 of the Crimes Act, which, until 1983, criminalised consensual homosexual intercourse. 3. The applicant also relied on the principle of legality: that fundamental rights ought not be overridden except by unambiguous legislative language. He contended that Parliament could have, had it intended to cover an offence under s 90A, used the following words (the additions being enclosed within square brackets): ". . . an offence [that has at any time existed] under Part 3 of the Crimes Act 1900 that is [or when in force, was] punishable by imprisonment for a term of 14 years or more" The Crown's submissions 1. The Crown submitted that the enactment of s 86 was simply a "recapitulation" of the s 90A offence and that the differences are not such as to make the offence a separate offence. As to the differences identified by the applicant, the Crown submitted that: 1. the concept of consent is a feature of s 90A; 2. the concept of possession of a person is an anachronism appropriately removed to reflect contemporary sensibility but does not alter the character of the offence; and 3. the reversal of the onus of proving a circumstance of aggravation of causing injury could not be said to substantially alter the character of the offence. 1. The Crown also referred to the 1978 Bail Act, which treated the s 90A kidnapping offence as a "serious personal violence" and provided for a presumption against bail where an individual had been convicted of a s 90A offence and had been charged with another "serious personal violence offence". Consideration The nature of the amendments to the Crimes Act 1. As appears from the Second Reading Speech to the Bill that became the 2001 Amending Act, the substantive offence, kidnapping, remained the subject of the section, although its elements were amended, which affected the onus. One of the purposes of the amendment was to remove ambiguities which had been identified by the judgments referred to in the Second Reading Speech extracted above. The amendments to what had been s 90A and became s 85A (and, subsequently, s 86) were relatively substantial, although the renumbering was mechanical and immaterial. The offence is kidnapping. No other provision under the Crimes Act purports to criminalise kidnapping. The heading to s 90A can be taken into account when interpreting the section: s 35(3) of the Interpretation Act. There is not such a material difference between an offence against s 90A and an offence against s 86 that they ought properly be regarded as creating different substantive offences or criminalising substantially different conduct. 2. Moreover, the policy behind both sections is the same. As Howie J said in Davis v Regina at [51]: ". . . the policy behind s 90A was not the prevention of the asportation of the person away from a particular place or the protection of a particular class of person, but rather the interference with the liberty of the person for the purpose of obtaining an advantage." The legislative history as a guide to legislative purpose 1. The legislative history of the Bail Act and the Crimes Act indicates a consistent legislative policy of placing an additional hurdle in the way of an applicant for bail who had already been convicted of a violent offence against the person and who is charged with a violent offence against the person. The precise formulation of the offence is not material; rather, it is the genus which determined the policy and the perceived need to make it more difficult to obtain bail in such circumstances. The task of interpretation is required to be undertaken so as to give effect to that purpose: s 33 of the Interpretation Act. 2. I do not regard the applicant's analogy with conduct that was once, but is no longer, criminal (such as homosexual intercourse between consenting adults) as either apposite or helpful. Kidnapping has, since 1961, been an offence under the Crimes Act. It was previously an offence under the common law: see Davis v Regina at [23]-[33] per Howie J. Although it is presently in a different form (in s 86), the offence is largely the same as it was when introduced in 1961 (as s 90A). The applicant was unable to point to any legislative purpose that could be advanced by his contention that a conviction for an offence against s 86 fell within the category of show cause offences but that a conviction for an offence against s 90A did not. The effect of ss 5 and 68 of the Interpretation Act 1. The effect of ss 5 and 68 in a situation such as the present was considered by Pearce and Geddes at [6.24] of Statutory Interpretation. The authors considered that a reference to a provision that is itself repealed and remade is also within the ambit of s 68 because of the effect of s 5(3), which provides that the Act is to apply "wherever appropriate" to a portion of an Act in the same way as to the whole of the Act. They referred to Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, in which the Court of Appeal held that a reference to s 126 of the Public Works Act 1912 could be read as a reference to s 126A after s 126 had been repealed and remade into two provisions. 2. As referred to above, I consider that s 86 effectively criminalises the same conduct as did s 90A, notwithstanding the amendments. Accordingly, the renumbering is immaterial. The old and new sections are not incompatible; the latter is properly to be regarded as the statutory successor to the former. This conclusion is fortified by the Second Reading Speech in which the Attorney-General said: "New section 85A will replace section 90A of the Crimes Act." 1. In my view, the effect of ss 5 and 68 of the Interpretation Act is to add the words which the applicant contended would be required to make an offence against s 90A a "serious personal violence offence" within the meaning of the definition in s 16B of the Bail Act. Moreover, there is, in my view, no "contrary intention" to be found which would displace the effect of these provisions. 2. The question whether an offence that has been entirely repealed (such as homosexual intercourse between consenting adults) could be taken into account under s 16B raises different issues. In that case, it would seem that there would be the relevant "contrary intention" which would require such an offence to be excluded from consideration. For the purposes of the present application it is not necessary to decide that question. Conclusion 1. For the foregoing reasons I consider that the applicant is required to show cause pursuant to s 16A of the Bail Act 2013 (NSW) since he has previously been convicted of a serious personal violence offence within s 16B. ********** Amendments 18 May 2023 - Publication restriction removed – judgment republished 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 May 2023