1 On 2 June 2010, we refused an application pursuant to s 295 of the Criminal Procedure Act 2009 (the 'CPA') for leave to appeal against an interlocutory decision of his Honour Judge Anderson. That decision was one by which his Honour had himself refused an application that the retrial of the applicant be permanently stayed on the ground that the trial had not been commenced within the time required under the CPA. His Honour certified that his decision was of sufficient importance to justify it being determined on an interlocutory appeal.[1] These are our reasons for refusing the application for leave to appeal.

2 Before turning to the substance of this appeal we should make a preliminary observation. The interlocutory process is designed to allow parties the benefit of an immediate answer to specific and carefully defined questions of law which have been considered by the trial judge. It is abused if, as in this case, the real point of the appeal is not clearly articulated before the trial judge and emerges only for the first time on the appeal. A number of the benefits of the interlocutory appeal process were thus negated.

3 Since the substance of the argument now advanced before this court had not been articulated before the trial judge, his Honour's certification that there was a point of sufficient importance to warrant an interlocutory appeal was redundant, and this court was denied the benefit of the view of the judge at first instance. It was also denied the opportunity to consider the real issues before it commenced the oral hearing. The expedited oral hearing is conducted for the limited purpose of permitting any necessary amplification of the identified issues.

4 The facts which gave rise to the application for a stay are these. On 12 May 2008, the applicant was presented for trial in the County Court on three counts of incest. The complainant, who was born on 16 August 1990, was then 17 years old and therefore still a child. After a trial lasting some ten days the applicant was on 22 May acquitted on one, but convicted on the other two, counts, and was sentenced to imprisonment for four years and six months, with a non-parole period of two years and three months. Those convictions were, however, quashed by the Court of Appeal on 30 October 2008, at which time the Court ordered a retrial, and stated that its reasons would be delivered on a date to be determined.

5 In the result, the reasons were published on 12 March 2009. There followed, on 9 July 2009, a directions hearing in the County Court at which the matter was set down for retrial on Monday 17 May 2010. It was not reached on that day, but came before Judge Anderson on Wednesday 19 May. It was then that his Honour heard, and rejected, the application for a permanent stay.

6 The submission advanced before his Honour was that the CPA applied to the conduct of his trial and that the trial had to commence within three months of the order of the Court of Appeal.

7 Sections 212 and s 247 of the CPA are to be found in Chapter 5. They are in these terms:

212 Time limits for commencing trials for sexual

The trial of a person for a sexual offence must commence -

(a) within 3 months after the day on which the person is committed for trial in respect of the offence; or

(b) if no committal proceeding in respect of the offence is held, within 3 months after the day on which the indictment against the person is filed; or

(c) if a new trial is ordered by the Court of Appeal, within 3 months after the day on which the order is made; or

(d) if the period referred to in paragraph (a), (b) or (c) or any extension of that period is extended under section 247, within the extended period.

(1) The court, by order, may extend or abridge any time fixed -

(a) by or under this Chapter; or

(b) by any order extending or abridging time made under this section -

if the court considers that it is in the interests of justice to do so.

(2) An extension of the time for commencement of a trial for a sexual offence must not exceed 3 months.

(3) It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgment of time.

(4) The court may extend time under subsection (1) before or after the time expires.

(5) More than one extension of time may be granted under subsection (1).

(6) Unless the court otherwise orders, no material in support of an order under subsection (1) need be filed.

8 The applicant submitted before his Honour that he had no power to extend the time in which the trial could be commenced. He submitted that the use of the word 'must' in s 212(c) precluded any extension of the time beyond 3 months after the order of the court was made. Counsel for the applicant sought to distinguish the decision of Ormiston J (as he then was) in R v Harris[2] who found that the time limits under a previous and similar enactment were procedural and that times could be extended after the time for commencement of the trial had expired.

9 It was further submitted that s 25(2)(c) of the Charter of Human Rights and Responsibilities Act 2006 which provides that an accused be tried 'without unreasonable delay' supported such a construction. Accordingly, it was said that the trial should be permanently stayed.

10 The Crown contended that the Crimes Act 1958 (the Crimes Act) regulated the conduct of the trial and that, notwithstanding that the time for commencement of the trial had expired, Judge Anderson had the power to extend the time by a further three months under that Act. His Honour agreed with this submission, and further extended by three months the time within which the trial was to commence.

11 We shall return to the question of whether the trial judge had power to extend the time, but it is first convenient to address the question whether the CPA applied to this trial.

12 The resolution of this question depended upon the proper construction of the savings and transitional provisions in Schedule 4 of the CPA. Clause 1 of that Schedule defines the expression 'commencement day' as meaning 'the day on which this Act (other than Chapter 1 and s 437) comes into operation'. Clause 9 reads as follows:

9. New trial or further hearing

(1) Subject to sub-clause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or further hearing, irrespective of when the first trial or hearing was conducted.

(2) Sub-clause (1) does not apply to a new trial or further hearing that is ordered under Division 4 or 5 of Part 6.3 in the proceeding that commenced before the commencement day.

13 It was common ground that sub-cl (2) of cl 9 was, in the circumstances of this proceeding, inapplicable. According to the applicant, the words in sub-cl (1), 'on and from the commencement day' are not to be construed as applying to the date when a new trial was ordered 'but only to the conduct of the new trial'. That submission cannot be sustained. By first referring to the 'commencement day' and then referring to an order for a new trial, the introductory phrase restricts the application of the section to orders for a new trial that are made on or after the commencement of the CPA. Had Parliament intended that the CPA apply whenever the new trial was ordered, the phrase 'on and from the commencement day' would have been unnecessary. As the new trial was ordered in October 2008, cl 9 is inapplicable.

14 As senior counsel for the Crown submitted before his Honour and on appeal, cl 8 of Schedule 4 to the CPA supports the conclusion that the applicability of the CPA is to be determined by the date of the event which initiated the proceeding. It provides, so far as is relevant, that Chapter 5 of the CPA applies to a criminal proceeding in which the accused is either committed for trial, or is the subject of a direct indictment, on or after 1 January 2010. Secondly, it provides that the Crimes Act which was in force immediately before 1 January 2010, continues to apply to an accused who, before that day, was committed for trial.[3] Under clause 9, the event which initiates the new trial is the order of the Court of Appeal.

15 It was also asserted for the first time during oral argument that the proceedings before his Honour were 'fresh proceedings' because a new presentment has been filed over or had at least been amended by striking out the count on which the applicant had been acquitted. Hence, for that reason, the CPA was said to apply. In answer, senior counsel submitted that there had been no filing over of a new presentment. No attempt was made by counsel for the applicant to demonstrate that a different presentment had been filed. The submission that there was a 'fresh' proceeding appears to be entirely without merit.

16 As the applicant was necessarily committed for trial well before 1 January 2010, it follows that it is to the Crimes Act that one must turn to ascertain what times apply to the commencement of the applicant's trial. The provisions of the Crimes Act, and in particular s 359A, contain the time limits which govern the present trial. His Honour was correct to conclude that the CPA had no application.

17 We return then to the substantive submission that the court had no power to extend the time for commencement of the trial beyond three months from the date of the order.

18 In his ruling, the learned trial judge noted that it was not contended before him that the court lacked the power to extend the time for the commencement of the trial if the CPA did not apply, or that he should not be satisfied, as required by s 395A(2AAB) of the Crimes Act, that it would be 'in the interests of justice' for an extension of time to be granted. Before us a quite different position was taken. It was now said that it made no difference which Act applied, Judge Anderson had no power under either Act to further extend the time.

19 The applicant's first trial was on 12 May 2008. Section 359A of the Crimes Act was then the relevant provision. It provided (in effect, and so far as is presently relevant) that where a person is, after a committal proceeding, directed to be tried for the offence of incest, the trial shall not be commenced more than three months after the direction is given; but the court before whom the accused is to be tried may, if it thinks fit at any time, and notwithstanding that the period of three months has expired, grant an extension for not more than three months - although more than one such extension may be granted.

20 By 30 October 2008, the date upon which the Court of Appeal ordered a new trial, the amendments effected by the Justice Legislation Amendment (Sexual Offences Procedure) Act 2008 had come into force. It inserted three new sub-sections into s 359A, and made certain consequential amendments to that provision. By sub-s (2AA), insofar as it is presently relevant, the trial of a person charged with a sexual offence against a person who was a child when the proceeding commenced must begin, and the jury must be empanelled, not more than three months after the accused is directed to be tried. By sub-s (2AAB), the court may, if it is satisfied that it is in the interests of justice to do so, grant an extension of that period; and, by sub-s (2AAC), such extension, 'being an extension for a period not exceeding three months', may be granted whether or not the initial period of three months has expired. Finally, by sub-s (3), more than one extension of time may be granted.

21 In his ruling, the learned trial judge, applying s 359A of the Crimes Act, concluded that it was in the interests of justice that the time for commencement of the trial be extended for a further period of three months, notwithstanding that the time for commencement of the trial had expired. His Honour referred to the reasons of Ormiston J in Harris that there was no absolute bar on the trial proceeding where the period for commencement had expired.

22 The trial judge, out of an abundance of caution, also expressed the conclusion that if the CPA applied, the court had a similar power under s 247 to extend the time after the period in which the trial should commence had expired. His Honour found that there was nothing in the Attorney-General's statement of 'compatibility' made in accordance with the Charter at the time the CPA was introduced, or in the provisions of the CPA, which reflected an intention to displace the decision in Harris. Accordingly, his Honour stated that he would also have extended the time for commencement of the trial by three months if the applicable regime was the CPA as he was satisfied that it was in the interests of justice to do so.

23 Before this court, counsel for the applicant, while not conceding that he was doing so, in fact substantially recast his submission. We observe that before his Honour, no submission was advanced as to why s 395A(2AAC) of the Crimes Act or s 247(4) of the CPA would not permit a further extension of time of three months, where the time in which the trial should have commenced had expired. Before us, it was now contended that whether the CPA or the Crimes Act applied, Judge Anderson had no power to extend the time in which the trial could commence. The argument in support of that proposition appears to be as follows. Whilst the trial court by s 359A of the Crimes Act could extend time whether or not the time had expired (s 359(2AAC)), it had no power to do so 'at any time' in contrast to s 359A(2). The presence of the words 'at any time' in sub-s (2) of s 359A, and the absence of those words in sub-s (2AA) was said to be critical. Thus 'the last day for the court to grant an application extending time was after six months - three months was allowed before time expired and three months after time expired'.[4] Any further extension beyond that period was said to involve an extension beyond three months, something forbidden by s 359(2AAC).

24 The applicant submitted that an extension of more than six months was also forbidden under the CPA. Section 247(2) and (4) of the CPA were to the same effect as s 359(2AAC). The CPA contained no provision that allowed an extension to be granted 'at any time.' Thus it was said that any further extension of time would also have been precluded under the CPA .

25 As we have said, at the directions hearing on 9 July 2009 which followed the order for a new trial by the Court of Appeal, the County Court judge then managing the Sexual Offences List fixed the applicant's trial to commence some ten months later, on 17 May 2010. Obviously that direction involved an extension of time of more than three months; and this did not comply with s 395 (2AAC). There was no power to grant an extension of that length. That said, no complaint was raised as to the proposed date of commencement at the time of the directions hearing or later when the matter came before Judge Anderson. Presumably, that was the earliest date available. We observe that the same counsel appeared on each of those occasions and before us, when the illegality of the extension granted on 9 July was first raised. But on the applicant's construction of s 395A, no extension of time could be granted by Judge Anderson on 19 May 2010, as more than six months had elapsed since the order had been made at the directions hearing on 9 July 2009. And, if it were the CPA which applied, more than six months had elapsed since the order for a new trial had been made. For the reasons we state below, we reject this submission.[5]

26 The applicant filed a notice pursuant to Regulation 5 of the Charter of Human Rights and Responsibilities (General) Regulations 2007 and gave notice to the Attorney-General and The Victorian Equal Opportunity and Human Rights Commission that a question of law arose in this proceeding that related to the application of the Charter of Human Rights and Responsibilities to the interpretation of ss 212 and 247 of the CPA in accordance with the Charter - namely, whether those sections are mandatory, and whether, read in the light of s 25(2)(c) of the Charter, they have any effect on the law propounded in Harris. During the course of oral argument, counsel for the applicant eschewed any reliance upon the Charter. Consequently, counsel for the Attorney-General was not called upon.

27 We wish to emphasise that it should only be after careful consideration that a party should invoke the Charter. Quite apart from considerable inconvenience to the court and to the parties who have prepared for such an argument, resources are wasted when a Charter point is raised but abandoned during the hearing.

28 Counsel for the applicant also acknowledged that it was not suggested that it was no longer possible for the applicant to obtain a fair trial. He conceded that the applicant had suffered no prejudice as a consequence of the delay, much of which had been occasioned as a consequence of his substantive appeal. Accordingly, it was accepted that grounds upon which a permanent stay may be granted as discussed in Jago v District Court of New South Wales[6] were not relevant to the present appeal. The applicant relied solely upon an asserted absence of statutory power to extend the time, as supporting the application for a permanent stay.

29 We reject the submission that the extension of time which may be ordered under the Crimes Act or the CPA is limited to six months from the time at which the trial was to commence. It is inconsistent with those provisions which permit further extensions of time after the time to commence the trial has expired. No temporal qualification appears in either s 359A(2AAC) or s 247(4) which limits the period during which an extension of time may be granted. Moreover, the absence of the words 'at any time' do not in our opinion affect the construction of either s 359A of the Crimes Act or s 247 of the CPA. The reasoning of Ormiston J in Harris may be applied without material qualification to the provisions in the Crimes Act or the CPA. No rights of an absolute kind are created upon the expiration of the periods referred to in either Act. The capacity of the County Court to extend time, after the time in which to commence the trial has expired, is critical to the case management of criminal trials. It is a regrettable fact that the list of trials waiting to be heard is such that trials are frequently unable to be commenced within the time fixed for their commencement.

30 The trial judge was entitled to grant an extension of the time within which the retrial was to commence, notwithstanding that the time in which the trial should have commenced had expired, provided that any extension was limited to three months. His Honour's order complied with that proviso. The stay application was then rightly refused.

[1] S 295(3)(b) Criminal Procedure Act 2009.

[2] [1990] VicRp 26; [1990] VR 293.

[4] [10] of the affidavit filed in support of the appeal.

[6] [1989] HCA 46; (1989) 168 CLR 23.