R v Glenn (a pseudonym)

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.

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.

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 It remained in the Crimes Act until it was repealed by cl 6 of Sch 1 of the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW) (the 2001 Amending Act).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].

Section 90A provided:

The 2001 Amending Act relevantly provided, by cl 5, Sch 1:

Clause 6 of the 2001 Amending Act provided:

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:

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:

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.

Section 16B of the Bail Act relevantly provides:

Section 9D of the Bail Act 1978 (NSW) (the 1978 Bail Act) (now repealed) relevantly provided:

Section 5 of the Interpretation Act 1987 (NSW) provides:

Section 33 of the Interpretation Act 1987 (NSW) provides:

Section 35 of the Interpretation Act provides:

Section 68 of the Interpretation Act provides:

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.

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.

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:

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.

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.

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):

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:

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”.

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.

Moreover, the policy behind both sections is the same. As Howie J said in Davis v Regina at [51]:

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.

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 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.

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:

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.

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.

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.