Dealing with the appeal
32 Section 56 of the Justices Act 1902 provided a time limit of six months within which proceedings for a summary offence were to be commenced unless some other time was "specially limited by the Act dealing with the matter". It may be readily accepted that s 200(3) when originally enacted extended the time for commencing proceedings for the summary offences of receiving a bribe or giving a bribe to a police officer from six months to within two years after the act or omission alleged to constitute the offence. The critical question is whether when subsection (4) was added to s 200 by the Police Legislation Amendment Act in 1996 so that these offences became indictable, the terms of subsection (3) changed from providing an extension of the general time limit for summary proceedings (facultative) to providing a time limit for proceedings on indictment (restrictive). There is no time limit for the commencement of indictable offences unless otherwise limited by statute.
33 There are various principles of statutory construction which are relevant to the resolution of the question. First, there is the meaning of the word "may" in s 12 of the Interpretation Act 1987 that, if used to confer a power, indicates that the power may be exercised or not, at discretion. The second is the general principle contained in s 33 of the Interpretation Act that a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that does not. The third which is found in s 34 of the Interpretation Act allows for the use of extrinsic material if the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.
34 The task then is to construe the relevant provisions of the Police Act in their context which includes the purpose or object underlying the Act. I begin with the word "may" which appears in s 200(3). Words of command such as "shall" or "must" are not used. The statute thereby indicates a discretion in the commencement of proceedings. I move on to consider the 1996 amendments. Subsection (4) when inserted into s 200 in 1996 promoted an offence contrary to s 200 from being summary to indictable. The maximum penalty was increased from 12 months imprisonment to 7 years imprisonment. Section 207(3) enabled a Local Court to determine the proceedings in respect of an offence against s 200 even though it was an indictable offence if the parties agreed and the Magistrate was satisfied that it was proper to do so. The maximum penalty upon summary conviction was two years imprisonment.
35 Extrinsic materials may be used to discover the purpose or mischief to which the legislation is directed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Harrison v Melhem [2008] NSWCA 67 per Spigelman CJ at [13]. The extrinsic material which is of assistance in ascertaining the purpose or mischief to which the 1996 amendments were directed is to be found in the Second Reading Speech of Mr Whelan, the Minister for Police, on 24 April 1996 when he introduced into the Legislative Assembly the Police Corruption Bill and the Police Legislation Amendment Bill. The Minister said:
"Ongoing evidence at the royal commission demonstrates an even more serious problem in the New South Wales Police Service than was previously believed. Every available resource is need to combat corruption. The Government is committed to reducing corruption within the ranks of the Police Service as far as is humanly possible." (Hansard, Legislative Assembly, 24 April 1996 at 444).
36 It is evident that the mischief to which these Bills were directed was serious corruption in the New South Wales Police Service which had been revealed by the Royal Commission conducted by Justice Wood. The purpose of the legislation was to introduce tough measures to reduce that corruption.
37 A construction of s 200(3) which embraces subsection (4) on its introduction in 1996, it seems to me, is inconsistent with the purpose of the amending legislation. How could serious corruption in the police force be said to be addressed if a time limit was imposed for offences which were made indictable when a time limit would not otherwise apply?
38 Upon a literal interpretation of ss 200(3) and (4), a two year time limit might be considered to apply to offences of bribery or corruption of police officers even though they had become indictable. Section 33 of the Interpretation Act allows a Court to consider the purposes of the Police Act in determining whether there is more than one possible construction: see Mills v Meeking (1990) 169 CLR 214. It is plain that the Police Act has purposes other than the establishment of the Police Service, the provision for its management and the employment of its members. As an Act usually has more than one purpose, the purpose of the particular provisions in question may appropriately be considered in their statutory context.
39 Section 200 is found within Part 10 which deals with offences relating to the Police Service. The section is directed at police corruption. A literal interpretation which would change subsection (3) from being facultative to restrictive does not promote the purpose of dealing with police corruption.
40 There is another interpretation of ss 200(3) and (4). The 1996 amendments introduced s 207(3) and (4) as well as s 200(4). Although offences contrary to s 200 became indictable, they could be dealt with summarily in accordance with s 207(3). Subsection (3) of s 200 enabled the summary disposal of an offence of bribery or corruption of a police officer if the proceedings for such an offence were commenced within two years after its commission. Considered in this way, s 200(3) remained facultative and not restrictive after the 1996 amendments. It did not operate to impose a time limit upon offences which were dealt with upon indictment. Such an interpretation promotes the purpose of the Act whereas a literal interpretation does not. Section 33 of the Interpretation Act requires that an interpretation which promotes the purpose of the Act is to be preferred to an interpretation which does not.
41 What then is to be made of the passage in the Second Reading Speech in 2006 which I have quoted at [19]? The limitations upon the use that can be made of the statements made by a minister in the course of a Second Reading Speech are well established. As was said by Mason P in Harrison v Melhem at [168]:
"On my understanding, the law is clear in Australia that a minister's understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court."
42 The statements made in 2006 by the Minister expressed a view of the effect of the amendments made almost a decade earlier. It appears that an assumption was made that the time limitation in s 200(3) applied to offences being prosecuted on indictment. In my view, such an assumption was erroneous as it did not take into account the purpose of the legislation. The statements made by the Minister which proceeded on an erroneous assumption do not prevail over the proper construction of the statute.
43 Section 200(3) was, in my opinion, unaffected by the Police Legislation Amendment Act 1996. What had been facultative did not become restrictive by the introduction of s 200(4). A time limit was not imposed upon offences contrary to s 200 which were prosecuted on indictment. As the charges the subject of the appeal were prosecuted on indictment a two year time limitation did not apply. The charges relating to the offences of 27 February 2003, 1 December 2003, 25 February 2004 and 11 October 2004 were not statute barred.
44 The Crown drew attention to Attorney General of The Commonwealth v Oates [1999] HCA 35; (1999) 198 CLR 162. Section 1316 of The Corporations Law, applying as part of the law of Western Australia, provided that "Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence …". The respondent was charged with indictable offences against the Law, alleged to have been committed more than 5 years prior to the institution of the proceedings. It was held that s 1316 was facultative, operating to extend the twelve month period for the commencement of proceedings for offences punishable by summary conviction, and did not limit the commencement of proceedings for indictable offences. This construction of s 1316 was reached in the light of (i) the introductory words "Despite anything in any other law…" ; (ii) the word "may"; (iii) the perceived mischief that many summary offences could not be prosecuted if the twelve month period applied; and (iv) the legislative history whereby functional predecessors to s 1316 were enacted in order to deal with that mischief. Not all these matters are found in the present case, but the decision provides some support for the conclusion expressed in the preceding paragraph.
45 Accordingly I propose the following orders:
1. Leave to appeal to Janice Seeto be granted, but the appeal
be dismissed.
2. Leave to appeal to Stephen Richard Evans be granted, but the appeal be dismissed.
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