Wilson v DPP – Interpretation Act 1986 (NSW), ‘penal servitude’ and preservation of criminal liability under repealed provision

By Seppy Pour

In Wilson v DPP [2017] NSWCA 128, the Court of Appeal considered whether a repealed offence which imposed a maximum of five years of ‘penal servitude’ was considered a ‘serious indictable offence’ for the purposes of the Crimes Act 1900 (NSW).

Background

The appellant, Philip Edward Wilson, was charged with an offence under Crimes Act 1900 (NSW) (Crimes Act) s 316(1). Section 316(1) makes it an offence to fail without reasonable excuse to bring material information to police where a person knows or believes that another person has committed a ‘serious indictable offence’. It was alleged that between 2004 and 2006, the appellant failed to bring material information to police relating to an indecent assault on a boy aged 10 years contrary to Crimes Act s 81. The indecent assault was allegedly committed in 1971 by a Catholic priest, Father Fletcher. The offence under s 81 was repealed in 1984.

The appellant sought to have the court attendance notice quashed at first instance on the basis that the offence was not a ‘serious indictable offence’ for the purposes of the Crimes Act. This application was dismissed. An appeal from that order to a single judge of the Supreme Court was dismissed.

The appellant appealed from that decision to the Court of Appeal (NSWCA). The issue before the NSWCA was whether, at the time the appellant was alleged to have withheld information relevant to Father Fletcher’s alleged offence, s 81 was a ‘serious indictable offence’ for the purposes of the Crimes Act.

Discussion

On 17 March 2015, the appellant was charged with an offence under Crimes Act s 316(1). During the period of 2004 – 2006, the 316(1) read:

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

For the offence under s 316(1) to be made out, it must be proven that:

  • A ‘serious indictable offence’ was committed (the ‘predicate offence’); and
  • another person knows or believes that the offence has been committed; and
  • that other person has information which might be of material assistance in securing the apprehension, prosecution, or conviction of the offender; and
  • that other person fails to bring that information to the attention of the relevant authority; and
  • does so without reasonable excuse.

The overarching issue in this appeal was whether, at the time of the alleged withholding of information, the predicate offence was a ‘serious indictable offence’ so that the condition that “a person has committed a serious indictable offence” could be satisfied. That question turns on whether the predicate offence, which before its repeal in 1984 was punishable by “penal servitude for 5 years”, was at the time of the charged conduct a ‘serious indictable offence’.

A ‘serious indictable offence’ is an indictable offence “that is punishable by imprisonment for life or for a term of 5 years or more”: Crimes Act s 4(1). For s 316(1) to be made out, it is not necessary for the prosecution to prove the accused knew the predicate offence was a serious indictable offence: Crimes Act s 313.

The now repealed Crimes Act s 81 provided:

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

Section 81 was repealed in 1984 by Crimes (Amendment) Act 1984, Sch 1, item (8).

In 1999, the Crimes Legislation Amendment (Sentencing) Act 1999 abolished and replaced references to ‘penal servitude’ with ‘imprisonment’ under Crimes Act s 580F.

Judgment

The appellant’s argument specifically focussed on the construction and application of s 580F. It argued that its application in relation to a repealed provision such as s 81 is limited to the prosecution, conviction and punishment of Father Fletcher, but not the characterisation of an offence as a ‘serious indictable offence’ for the purposes of s 316(1). The Court unanimously rejected this approach, citing Interpretation Act s 30(1). Section 30(1) states:

(1) The amendment or repeal of an Act or statutory rule does not:

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

By operation of s 30(1), s 81 is to be treated “as if” it had not been repealed. Moreover, by virtue of s 580F, the reference to ‘penal servitude’ is to be taken to be a reference to ‘imprisonment’ in the context of s 81. Thus, had Father Fletcher been prosecuted and convicted of the predicate offence in 2004, treating the language of s 81 as having been amended, he would have been “liable to imprisonment for 5 years”. Accordingly, it necessarily follows that the offence which it is alleged Father Fletcher had committed was a ‘serious indictable offence’.

Held

  1. Interpretation Act 1986 (NSW) s 30 preserved Father Fletcher’s liability under Crimes Act s 81: [13], [48]
  2. By application of Crimes Act s 580F(3) any reference in a statutory provision to ‘penal servitude’ is taken to be a reference to ‘imprisonment’. That application extends to s 81, notwithstanding its repeal. Accordingly in 2004 and until his death in 2006 Father Fletcher was able to be convicted of the repealed offence and subject to punishment of imprisonment for 5 years: [13], [52]-[53].
  3. It follows that the offence Father Fletcher was alleged to have committed was a ‘serious indictable offence’ at all times relevant to the commission of the offence charged under s 316(1): [15], [54].

Implications for practitioners

The broad application of Interpretation Act s 30(1) and Crimes Act 580F taken by the Court in Wilson demonstrates the breadth with which offences similar to Crimes Act s 316(1) can apply. In the context of the Royal Commission into Institutional Responses to Child Sexual Abuse, this ruling can have wide reaching implications.

It is important to note that the Court made passing observations as to when the liability under s 316(1) would not apply.

  • Firstly, the Court noted at [43] that s 316 would not apply where, before all the elements of s 316(1) were present, criminal proceedings regarding the predicate offence have been dealt with to a point where any information concerning that offence either would never be or could no longer be “of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender”.
  • Secondly, the Court did not discuss the contention of the original charge which stated that the liability under s 316(1) ended when the potential for prosecution under s 81 came to an end. In this case, the potential was ended due to the death of Father Fletcher, but in theory this could be precipitated by a range of events.
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