Wilson v Department of Public Prosecutions

Supreme Court of NSW|2016-09-29|Before: Schmidt J

Judgment

Archbishop Wilson seeks leave under s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal a decision given by Stone LCM on 12 February 2015. His Honour refused to quash or permanently stay a court attendance notice in which it is alleged that in 2004 - 2006 the Archbishop committed an offence under s 316(1) of the Crimes Act 1900 (NSW) in connection with a sexual assault of a 10 year old boy, by another priest, in 1971.
Three grounds of appeal advanced are: "1. The learned Magistrate erred in finding that the offence with which the Applicant is charged is valid. 2. The learned Magistrate erred in failing to find that the element of the offence in s316(1) of the Crimes Act 1900 (NSW), that a serious indictable offence has been committed, could not be established on the evidence in the prosecution case because the alleged predicate offence occurred prior to the introduction of s316 of the Crimes Act and prior to the introduction of the term "serious indictable offence" in that provision. 3. The learned Magistrate erred in failing to: (a) find that it was manifestly clear the evidence in the prosecution case was incapable of proving the element that the applicant had the requisite knowledge or belief to constitute the offence under s316(1) of the Crimes Act 1900 (NSW); and (b) permanently stay the prosecution of the applicant on that basis."

Leave to appeal should be granted

I am satisfied that leave to appeal should be granted, for reasons explained below.

The charge

The Court attendance notice relevantly alleges: "Between 12:01 am on 22/04/2004 and 11:59 pm on 07/01/2006 at East Maitland. Whereas [J] in 1971 committed a serious indictable offence, namely, indecent assault of a male, aged 10 years old, Philip Edward WILSON between 22 April 2004 and 7 January 2006 at MAITLAND and elsewhere in the State of New South Wales, believing that [J] committed that offence and knowing that he had information which might be of material assistance in securing the prosecution of [J] for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the New South Wales Police Force."

The prosecution case

The prosecution case is that it was in 1976, when the Archbishop was a young man, newly ordained as a Catholic priest and attached to the Maitland Diocese, that the alleged victim told him that in 1971, when he was aged 10, he had been sexually assaulted by J; and that when they later spoke a second time, the Archbishop told the victim that the matter was still being investigated. There is no issue that such assaults were at those times offences under s 81 of the Crimes Act.
It is also alleged that in 1976 another young boy disclosed to the Archbishop in the confessional, that he too had been sexually assaulted by J.
It is not alleged that Archbishop Wilson was himself involved in the commission of any offence against either victim; that he was a witness to J's offending; or a witness to any admission made by J about his offending. The prosecution also does not claim that in 1976, or before 2004, the Archbishop knew or believed that in 1971 J had committed the alleged offence against the first victim.
The prosecution case is rather that it was in 2004, when Archbishop Wilson became aware of other allegations which had been made against J, that he came to have the requisite belief. The Archbishop was then told of other allegations that J had sexually assaulted a third young victim; that he then advised another priest who had also received that allegation, that the priest would be legally liable, if he did not report that allegation to police; and that he also then became aware that J had been charged with the sexual assault of a fourth young victim, offending in respect of which J was later convicted.
The prosecution also alleges that from the time of these events in 2004, until J's death in 2006, Archbishop Wilson, having acquired the belief which is the subject of the s 316 charge, failed, without reasonable excuse, to report the information which he had about J's 1971 offence to police.

The Local Court judgment

It is not necessary to refer in detail to all that Stone LCM dealt with in his judgment in order to resolve the issues lying between the parties on this appeal, although detailed submissions were advanced as to various errors into which it is claimed that his Honour fell.
In short, relevantly, his Honour was satisfied that the alleged s 81 offence fell within the definition of "serious indictable offence" in s 4 of the Crimes Act; that accordingly, the s 316 offence with which the Archbishop had been charged was valid; and that the evidence on which the prosecution relied was capable of establishing the offence charged.
His Honour observed amongst other things: 1. the prosecution will have to rely on "tendency evidence" to prove the existence of the belief on which the s 316 offence depends (at [28]); 2. it was not "an affront to commonsense" that the applicant would not recall the allegation the first victim had made to him about J some 30 years earlier; and that proof of the existence of the alleged belief in 2004 depended on inference (at [29]); 3. the prosecution could rely on "tendency evidence", together with the victim's evidence to establish its case, which would "depend substantially on the evidence of the victim and his credibility" (at [32]); 4. the Archbishop's case was that taken at its highest, the evidence was capable only of establishing his receipt of allegations and the existence of a suspicion about J having offended many years before; it could not establish the existence of knowledge or belief on his part, that J had committed a serious indictable offence (at [33] - [34]); 5. that the prosecution did not have to prove J's conviction of the 1971 s 81 offence, but only a belief on the Archbishop's part that he had committed that offence (at [36]);
His Honour concluded at [37]: "37. There are allegations that a court could find that establish that the applicant was aware that a crime was committed and that the information the applicant held might be of material assistance in the prosecution of the offender. The intervening period of time requires consideration of a number of factors that are not yet ventilated by the evidence. Those factors include the assessment of the credibility of PC, what was, if anything, said to the applicant in 1976, what the applicant recalls and other matters that might fall into the reasonable excuse defence."

Ground 2 - can the prosecution establish that a s81 offence is a "serious indictable offence" as defined?

For the following reasons, I am satisfied that these grounds of appeal must be dismissed.

Relevant rules of statutory construction

The case advanced for the Archbishop in written submissions on appeal was that the construction of s 316 advanced by the prosecution and accepted by his Honour "works a positive injustice" in his case (at [39]). Further, that concealment of a s 81 felony, given that the offence was repealed prior to the enactment of s 316 and the introduction of the definition of a "serious indictable offence" into the Crimes Act, is not capable of founding a charge under s 316, the legislature not having provided for such an outcome.
On the proper construction of these statutory provisions, I am satisfied that these submissions cannot be accepted.
Construction of a penal statute like the Crimes Act must be approached in the way discussed in Beckwith v R (1976) 135 CLR 569; [1976] HCA 55 at 576: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568 ; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort."
Ordinary rules of construction relevant to a determination of the proper meaning of s 316, the definition of "serious indictable offence" in s 4 of the Crimes Act, and other provisions of that Act, over which the parties have joined issue, include the following: 1. Section 33 of the Interpretation Act 1987 (NSW) requires that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act, whether or not they are expressly stated in the Act, is to be preferred to a construction that would not promote that purpose or object. 2. Section 34 of the Interpretation Act permits consideration to be given to certain extrinsic material, including second reading speeches, in the interpretation of a statutory provision. Consideration must also be given to the Act's relevant legislative history (see for example Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at 366-68). 3. The words in question must be considered, as must their context and purpose, in the way discussed by Bathurst CJ in SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 at [58]: "... As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute." 1. General words must be given their plain and ordinary meaning, unless the contrary intention is shown (see Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17 at 647). 2. An act is presumed not to operate retrospectively, in the absence of clear contrary intention (see Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7; at 267). Amending Acts are prima facie to be construed as having prospective operation only and as not attaching new legal consequences for facts which occurred before its enactment (see Fisher v Hebburn Ltd (1960) 105 CLR 188; [1960] HCA 80 at 194). However, even if operation of a statutory provision depends on past conduct, it may only have future operation (see La Macchia v Minister for Primary Industry (1986) 72 ALR 23). 3. The practical consequences of giving a particular meaning to an Act must also be considered (see Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336).

The relevant statutory history

In this case it is convenient to begin with the relevant statutory history.
In 1971, s 81 of the Crimes Act provided: "81. Indecent assault on male. 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."
This was a felony offence, s 9 of the Crimes Act then providing that: "9. Whenever by this Act a person is made liable to the punishment of penal servitude, the offence for which such punishment may be awarded is hereby declared to be and shall be dealt with as a felony, and wherever in this Act the term "felony" is used, the same shall be taken to mean an offence punishable by death or penal servitude."
Section 81 was repealed in 1984 by the Crimes (Amendment) Act 1984 (NSW). The second reading speech reveals that the legislative amendments then introduced were concerned with decriminalising consenting adult male homosexual behaviour, maintaining the age of consent for males at 18 years and providing protection for those under 18 (see Second Reading Speech NSW, Parliamentary Debates, Legislative Assembly, 10 May 1984, 574 (Mr Wran)). Thus the amending Act also introduced specific statutory offences in respect of particular conduct formerly caught by s 81. For example, homosexual intercourse with a male person of or above the age of 10 years and under 18 years, was made an offence by the enactment of s 78K, for which a penalty of penal servitude for 10 years was fixed.
Despite the repeal of s 81 in 1984, s 30 of the Interpretation Act has effect, with the result, it was common ground, that even though s 81 has been repealed, up until the time of his death an alleged offender such as J could still be charged and convicted of a s 81 offence committed before its repeal. In the result, despite the repeal of s 81 in 1984, until his death J remained at risk of conviction for his alleged felonious assault in 1971. Section 30 provides: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (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. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. (4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes: (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and (d) a reference to: (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance."
Section 580 of the Crimes Act was also enacted in 1984, it was explained in the second reading speech, in order to prevent action at common law for the statutory provisions which were then repealed, including of course s 81 (see at 576). Section 580 provides: "580 Certain charges not to be brought at common law A person may not be charged with any common law offence in respect of any act committed upon or in relation to another person, being an act which could but for the amendment of sections 79 and 80 and the repeal of sections 81, 81A and 81B by the Crimes (Amendment) Act 1984, have been the subject of a charge for an offence under any of those sections."
It is part of Archbishop Wilson's case that s 580, which operated prospectively from 1984, also abolished misprision offences committed in respect of earlier s 81 offences, such as that which it is alleged J had committed in 1971. That is in issue and, I am satisfied, a construction of the section which is not open, as I will come to explain.
After the repeal of s 81, while sexual assault of a 10 year old boy was no longer an offence under that section and could not, as the result of the enactment of s 580, found a charge of a common law offence, such conduct became an offence under s 78K. Thus both before and after the repeal of s 81, the common law offence of misprision of felony applied to any concealment of such offending, notwithstanding the enactment of s 580. As discussed in R v Wozniak (1989) 16 NSWLR 185 at 194, such misprision required actual knowledge, not mere belief that the offence in question had been committed.
It was in 1990 that misprision of felony was prospectively abolished by the Crimes (Public Justice) Amendment Act 1990 (see ss 340 and 341 of the Crimes Act). That abolition did not apply to misprision offences committed before the commencement of the 1990 Act (see DC v State of New South Wales [2010] NSWCA 15 at [39]).
Section 316 was also then enacted in 1990. It did not, as Stone LCM found, apply to mere suspicion of relevant offending, but the new offence included concealment in cases where there was either knowledge, or belief of offending to which the section applied having occurred.
Section 316 of the Crimes Act when enacted in 1990 provided: "Concealing serious offence for benefit 316. (1) If a person has committed a serious 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 the 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. (2) A person who solicits, accepts agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury."
"Serious offence" was then defined in s 311(1) to mean "an offence punishable by imprisonment or penal servitude for 5 years or more or for life".
As I have said, belief was not an element of a misprision offence. Its introduction in s 316 broadened the circumstances in which a concealment offence could be committed. "Believes" is not defined in the Crimes Act. It must be given its ordinary meaning. It is relevantly defined in the Macquarie Online Dictionary, for example, to mean: "1. to have belief in: to believe a person. 2. to think: I believe she has left the city. 3. to credit; accept as true: to believe a story."
Belief is a state of mind which can be reached as the result of a mix of knowledge which an offender has come to possess, as well as suspicions and opinions which he or she has come to hold and conclusions which he or she has reached.
It is not, however, an element of a s 316 offence that an offender conceals another offence that he or she has come to believe, on reasonable grounds, has been committed, as must be shown, for example, in respect of s 10.2 of the Commonwealth Criminal Code. Section 10.2 deals with duress in circumstances where a person holds a reasonable belief as to specified matters. As discussed in Oblach v Regina [2005] NSWCCA 440 at [55] - [60], belief is a subjective state of mind which depends on the personal circumstances and characteristics of its holder. The qualification "reasonable" introduces an objective element, which is absent in s 316.
It follows that under s 316 what the prosecution must establish is that an alleged offender actually came to hold the alleged belief. That does not depend on proof that he or she undertook some type of tendency reasoning, as was submitted for the Archbishop the prosecution had to establish he had undertaken in respect of J. While that, too, is a concept well known to the criminal law and a process by which a belief may be formed, it is not one necessarily undertaken by a person who comes to hold a particular belief about another person.
Despite what was argued by the Archbishop as to the operation of s 580, it was, however, accepted that the definition of "serious offence" introduced in 1990 captured historical s 81 offences such as those J is alleged to have committed. Thus, after s 316 was enacted in 1990, it was common ground, a s 316 offence could have been committed in respect of J's alleged 1971 s 81 offence. Such offending could have followed either the acquisition of knowledge about that offending, or the formation of a belief that it had occurred.
Section 316 of the Crimes Act was amended by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW). It now provides: "316 Concealing serious indictable offence (1) 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. (2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury. (4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection. (5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4)."
A definition of "serious indictable offence" was also inserted in 1999 in s 4 to provide that this term means "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more".
It was also Archbishop Wilson's case that J's alleged s 81 offence does not fall within this new definition, it not being an offence punishable by imprisonment. In the result, from the time of those amendments in 1999, a s 316 offence could no longer be committed in relation to J's alleged 1971 s 81 offence. That is also in issue and, I am satisfied, is also a construction of those provisions which cannot be accepted, for reasons which I will come to.
Relevant to that question is the provision also introduced in 1999 into s 476 by the insertion of subsections (9) and (9A) and the enactment of ss 580E and 580F. Those sections provide: "476 Indictable offences punishable summarily with consent of accused person (1) Where a person is charged before a stipendiary magistrate with an offence mentioned in subsection (6) the magistrate may require the person to state whether he or she intends to plead guilty or not guilty to the charge, and if the person does not so state he or she shall be taken for the purposes of this section to have stated that he or she intends to plead not guilty. (2) Where a person states under subsection (1) that he or she intends to plead not guilty to a charge, and it appears to the magistrate that the case may properly be disposed of summarily and that the person consents to it being so disposed of, the magistrate shall have jurisdiction to hear and determine the charge in a summary manner and pass sentence upon the person. (3) Where a person states under subsection (1) that he or she intends to plead guilty to a charge the magistrate may accept or reject the plea. (4) Where a magistrate rejects a plea under subsection (3) the proceedings before the magistrate shall continue as though the person had stated under subsection (1) that he or she intends to plead not guilty. (5) Where a magistrate accepts a plea under subsection (3) and it appears to the magistrate: (a) that the case may be properly disposed of summarily and that the person consents to it being so disposed of, the magistrate shall have jurisdiction to pass sentence upon the person, or (b) that the case may not properly be disposed of summarily, or that the person does not consent to it being so disposed of, the provisions of section 51A of the Justices Act 1902 shall apply as though the person had pleaded guilty to the charge under that section. (6) The offences referred to in subsection (1) are: (a) (i) larceny, and any offence (other than an offence mentioned in section 154A) which under this Act is deemed to be, or is made punishable as, larceny or stealing, (ii) the offence of stealing any chattel, money, or valuable security from the person of another, and (iii) any offence mentioned in section 126, 131, 145, 146, 148, 150, 151, 152, 156, 157, 159, 160, 165, 166, 168, 169, 170, 178A, 178B, 178C, 179, 184, 186, 188, 189, 189A, 190, 192, 195, 196, 197, 201, 202, 210, 249B, 249D, 249E or 249F, where (except in the case of a conveyance as defined for the purposes of section 154A) the value of the property, matter or thing the subject of the charge or the damage thereto, or the amount of money or reward the subject of the charge, does not exceed $15,000, (aa) any offence mentioned in section 52A or 52B except an offence whereby death was occasioned, (b) any offence mentioned in section 61E, 66C (1), 66D, 71, 72, 76 or 76A, where the person upon whom the offence was committed was at the time of the commission of the offence of or above the age of 14 years, (ba) any offence mentioned in section 61M or 61O (2), (c) any offence mentioned in section 81 where the person upon whom the assault was committed was at the time of the assault of or above the age of fourteen years, (d) any offence mentioned in section 35 (a), 35A (1), 53, 54, 57, 78Q, 81A, 81B, 81C, 91A, 91B, 91D, 91E, 91F, 91G, 93B, 93C, 114, 132, 133, 154AA, 158, 172, 173, 174, 175, 176, 176A, 178BA, 178BB, 199, 200, 203, 207, 208 (4), 209, 212, 213, 249C, 249F (where no benefit is concerned), 300, 301, 302, 309 (2), (3) or (4) or 310, (da) any offence mentioned in section 316, 325, 335, 336 or 337, (e) any offence mentioned in section 85 where the person charged is the mother of the child and is not charged with any other person, (ea) any offence mentioned in section 109 (1) where: (i) the felony intended is stealing, or (ii) the felony alleged is stealing and the value of the property stolen does not exceed $15,000, and the person charged was neither armed with an offensive weapon or instrument, nor in company with a person so armed, (f) any offence mentioned in section 112 (1) where: (i) the felony alleged is stealing, (ii) the value of the property stolen does not exceed $15,000, and (iii) the person charged was neither armed with an offensive weapon or instrument, nor equipped with an implement of safe-breaking, nor in company with a person so armed or equipped, (g) any offence mentioned in section 111 (1) or 113 (1) where: (i) the felony intended is stealing, and (ii) the person charged was neither armed with an offensive weapon or instrument, nor equipped with an implement of safe-breaking, nor in company with a person so armed or equipped, (h) escape from lawful custody, except where the escape constitutes an offence against prison discipline within the meaning of Part 4 of the Prisons Act 1952, and (i) (i) attempting to commit, (ii) where the offence is a felony, being an accessory before or after the fact to, or (iii) where the offence is a misdemeanour, aiding, abetting, counselling or procuring the commission of, any offence mentioned in paragraph (a), (aa), (b), (ba), (c), (d), (da), (ea), (f), (g) or (h). (7) Notwithstanding anything in this Act to the contrary, subsection (7A) excepted: (a) the maximum term of imprisonment, or imprisonment, to which a person may be sentenced by a magistrate under this section in respect of any one offence is two years, or the maximum term of imprisonment, or imprisonment, fixed by law (other than by this subsection) in respect of the offence, whichever is the shorter term, (b) the maximum fine which may be imposed by a magistrate under this section is, in respect of any one offence, 100 penalty units, or the maximum fine fixed by law (other than by this subsection) in respect of the offence, whichever is the smaller, and (c) where the maximum punishment which may be imposed by law (other than by this subsection) in respect of an offence is a term of imprisonment or imprisonment, or a fine, or both, the maximum punishment which may be imposed by a magistrate under this section in respect of the offence is that term, or two years, whichever is the shorter term, or that fine, or 100 penalty units, whichever is the smaller fine, or both. (7A) Notwithstanding anything in this Act to the contrary: (a) the maximum term of imprisonment to which a person may be sentenced by a magistrate for any one offence mentioned in section 52A or 52B is 18 months, (b) a magistrate may, instead of imposing a term of imprisonment for an offence disposed of under this section, impose a penalty not exceeding 100 penalty units, and (c) the maximum term of imprisonment to which a person may be sentenced by a magistrate for any one offence mentioned in section 53 or 54 is 12 months. (8) (Repealed) (9) Where, before the commencement of the Crimes and Other Acts (Amendment) Act 1974, a conviction in respect of an offence mentioned in this section would have been a conviction in respect of a felony, a conviction by a magistrate under this section in respect of that offence shall for all purposes be deemed to be a conviction in respect of a felony. (9A) In this section, a reference to a felony is a reference to an offence that, immediately before the commencement of this subsection, was a felony. (9B) If, immediately before the commencement of this subsection, a conviction for an offence would have been a conviction for a felony, a conviction under this section for that offence is, for all purposes, taken to be a conviction for a serious indictable offence. (10) Where, pursuant to this section, a magistrate decides to hear and determine a charge in a summary manner after written statements have been admitted as evidence under section 48A of the Justices Act 1902: (a) the magistrate shall enquire of the parties if any of them wish to have any person who made a statement admitted as evidence called to give evidence in the proceedings, (b) if a party requires the attendance of any person referred to in paragraph (a), or if the magistrate is of the opinion that any such person should be called: (i) the magistrate shall direct the attendance of that person to give evidence, and (ii) the statement shall, as soon as the direction is given, be thereafter treated as not being admitted as evidence in the proceedings, unless that party, after requiring the attendance of that person, consents to the re-admission in evidence of the statement or the magistrate, after giving the direction, withdraws the direction, and (c) if the attendance of any person referred to in paragraph (a) is not required, the statement made by the person shall continue to be evidence in the proceedings. (11) Where in any proceedings in which a magistrate decides to hear and determine a charge in a summary manner there are 2 or more defendants, the provisions of subsection (10): (a) apply in relation to each such defendant to the extent only that a written statement referred to in that subsection has been admitted as evidence against that defendant under section 48A of the Justices Act 1902, and (b) so apply in relation to each such defendant as if that defendant were the only defendant, and references in that subsection to a party shall be construed accordingly. (12) Without limiting the powers of the magistrate to adjourn proceedings, the magistrate shall grant such adjournments as appear to be just and reasonable as a consequence of any of the provisions of subsection (10)." "580E Abolition of distinction between felony and misdemeanour (1) All distinctions between felony and misdemeanour are abolished. (2) In all matters in which a distinction has previously been made between felony and misdemeanour, the law and practice in regard to indictable offences is to be the law and practice applicable, immediately before the commencement of this section, to misdemeanours. (3) Any proceedings for an offence that were commenced before the commencement of this section (being proceedings for an offence that was previously a felony or misdemeanour) are to continue to be dealt with, and to be disposed of, as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted. (4) Subject to the regulations, in any Act or instrument: (a) a reference to a felony is taken to be a reference to a serious indictable offence, and (b) a reference to a misdemeanour is taken to be a reference to a minor indictable offence. (5) This section does not affect the operation of any Act or instrument that restricts the commencement of proceedings against any person in respect of any offence. 580F Abolition of penal servitude (1) The punishment of penal servitude is abolished (2) Any sentence of penal servitude that was in force, immediately before the commencement of this section, is to be taken to be a sentence of imprisonment and is to continue in force as such for the remainder of the term for which the sentence of penal servitude would, but for this section, have continued in force. (3) Subject to the regulations, in any Act or instrument, a reference to penal servitude is taken to be a reference to imprisonment."
The enactment of these provisions, I consider, do not assist the case advanced for the Archbishop.

Construction

There is no issue between the parties that in 2004 - 2006, Archbishop Wilson could not have been charged with a common law misprision offence for his alleged concealment of J's 1971 s 81 offence, that offence having been abolished as it was in 1990. The elements of the s 316 offence with which the Archbishop was then charged, which the prosecution accepts that it must prove, were identified in its written submissions to be: "(1) A person (here [J]) had committed a "serious indictable offence"; (2) The applicant knew or believed that the offence had been committed; (3) The applicant had information that might be of material assistance in prosecuting [J]; (4) The applicant did not bring the information to the attention of a member of the Police Force or other appropriate authority; and (5) The applicant did not have a "reasonable excuse" for failing to bring the information to the attention of the Police or other appropriate authority."
It is not the formulation of these elements of the alleged s 316 offence about which complaint is made. Rather it is whether the concealment of a 1971 s 81 offence such as J is alleged to have committed, is capable of forming the basis of the charge brought against the Archbishop under s 316 at all, which is in issue, given the proper construction of the relevant statutory provisions.
The effect of the case as finally advanced by the Archbishop is that concealment of such historical offences has been decriminalised by the Parliament.
While Archbishop Wilson accepts that there is no statutory intention referred to in any extrinsic materials, such as second reading speeches, which points to the existence of such an intention, his case is that it is the words used by the Parliament in the various provisions which it has enacted, particularly s 580 and the definition of "serious indictable offence" in s 4, which has had that result. On his approach, even if that was not what the Parliament intended, that is what has been achieved by the words it has enacted. That, too, is in issue.
For the following reasons, I am satisfied that the case so advanced for the Archbishop cannot be accepted.
I am satisfied that not only can a person now be charged and convicted of a s 81 offence, even if the offence was committed before the repeal of that section in 1984, another person can also now commit and be charged and convicted of a concealment offence under s 316 in respect of such historical offending. That is because such a s 81 offence does fall within the definition of a 'serious indictable offence' under s 4 of the Crimes Act and because s 580 has no contrary effect.
Contrary to the case finally advanced for the Archbishop in oral submissions, s 580, a section enacted long before the enactment of s 316, in its terms is only concerned with acts which may have been the subject of a charge brought under s 81 (and the other repealed offences there specified) before its repeal, not with a common law misprision offence later committed by someone else who concealed such earlier offending. The express words of the section make it clear that it is concerned with acts committed upon or in relation to another person, which but for the repeal of s 81, could have been "the subject of a charge for an offence" under that section. It is not concerned with later acts of another person which would have involved that person in a misprision offence.
The effect of s 580 is that after the repeal of s 81 such offending could not be the subject of a common law offence such as assault, for example. It was only if the conduct fell within another statutory offence, such as that introduced by s 78K for example, which after the enactment of s 580 could become the subject of a criminal prosecution.
While misprision was a common law offence requiring knowledge and concealment of the commission of a felony, such conduct could not have been the subject of a charge under s 81. Accordingly, s 580 was neither concerned with such offending, nor did its enactment decriminalise such offending.
Even after the reforms introduced in 1990, when the offence of misprision was abolished, (considered in DC v State of New South Wales), concealment of a s 81 offence could have given rise to a charge under s 316. Its enactment did not decriminalise such conduct. To the contrary, thereafter concealment of such an offence in the case of either knowledge or belief as to the commission of the offence would have involved the commission of a s 316 offence.
Those conclusions are supported by the second reading speeches of both the Crimes (Public Justice) Amendment Act 1990 (see Second Reading Speech NSW, Parliamentary Debates, Legislative Assembly, 17 May 1990, 3691 (Mr Daud)) and the Crimes Legislation Amendment (Sentencing) Act 1999 (see Second Reading Speech NSW, Parliamentary Debates, Legislative Assembly, 28 October 1999, 2324 (Mr Debus)).
In 1990 the Attorney General explained in the second reading speech that the amendments made by the Crimes (Public Justice) Amendment Act were to rationalise and reform the law concerning offences involving interference with the course of justice, which was then said to be "fragmented and confusing" and with "many gaps, anomalies and uncertainties" (see Second Reading Speech NSW, Parliamentary Debates, Legislative Assembly, 17 May 1990, 3691 at p 3692). The abolition of various common law offences, including misprision, was there explained, as was its replacement by s 316.
It was not in issue that when s 316 was so introduced, it captured concealment of an earlier s 81 offence, because the definition of "serious offence" in s 311 then encompassed both punishments of imprisonment and penal servitude. Understandably these reforms did not include any amendment of s 580, because that provision was not a part of the law which regulated such concealment offences. Were s 580 to be construed otherwise, an obvious tension would in 1990 have arisen between s 580 and s 316. As the Archbishop's submissions necessarily accepted, that tension would have to be resolved in favour of the later enacted express provision made in s 316, given the definition of "serious offence" then introduced into s 4 which unarguably captured an historical s 81 offence (see Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 at 7).
In 1999 it was explained in the second reading speech that the amendments introduced by Crimes Legislation Amendment (Sentencing) Act 1999 were not concerned with the creation or abolition of offences, but rather with various law reform. That reform included the abolition of the common law distinction between felonies and misdemeanours and the abolition of the punishment of penal servitude, which was replaced with imprisonment. As was accepted for the Archbishop, those reforms had an impact on historical s 81 offences. Contrary to his case, they did not abolish s 316 offending in respect of the concealment of historical s 81 offences.
The 1999 amendment to s 316 and the introduction of the definition of serious indictable offence, were accompanied by the relevant new provisions made in s 476, s 580E and s 580F earlier quoted at [41]. They all support the conclusions I have reached as to the proper construction of s 316.
Section 580F(3), it will be remembered, importantly provides that "in any Act or instrument, a reference to penal servitude is taken to be a reference to imprisonment".
It was not in issue that as a result of the enactment of that provision, if a person is now convicted of an historical s 81 offence, the sentence which a court must impose upon the offender is not a sentence of penal servitude, but rather one of imprisonment. That is because the expression in s 580F(3) "any Act", includes Acts in force, as well as those, like s 81, which have been repealed, but continue to operate in the case of offending contrary to the section prior to its repeal, as the result of the operation of s30 of the Interpretation Act.
Consistent with this construction is the Criminal Procedure Act 1986, legislation which "to the extent that it is capable of being applied" applies to "all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with" (s 28(1)). Schedule 1 to that Act, Indictable offences triable summarily unless prosecutor or person charged elects otherwise, specifies that offences under s 81 are to be tried summarily (see clause 2 of Part 1).
In such a case the effect of s 480(9A) and (9B) is that a conviction of a historical s 81 offence "is, for all purposes, taken to be a conviction for a serious indictable offence".
It follows that there can be no question that the effect of s 580F(3) is that any prosecution and conviction of J after 1999 and before his death in 2006 under s 81 of the Crimes Act for his 1971 offence, would have been a conviction for a "serious indictable offence", as defined in s 4. On such conviction J would have been liable to punishment by imprisonment for a term of 5 years. It thus also follows unarguably, that such an historical s 81 offence is one in respect of which a s 316 offence could have been committed in 2004 - 2006, as is alleged against the Archbishop, that offence falling as it does within the definition of "serious indictable offence" in s 4 of the Crimes Act.
Contrary to the Archbishop's submissions, that does not involve giving s 316 any retrospective operation. The offence with which he is charged is one alleged to have been committed in 2004 - 2006, albeit in connection with the concealment of a 1971 s 81 offence, of which J was then still at risk of conviction and if convicted, sentenced to a term of imprisonment. There is nothing in the language of any of the statutory provisions to which reference has been made, which suggests a statutory intention to preclude conviction of an offender for concealment of such an historical offence, or to decriminalise such conduct.
To hold otherwise would be to fail to give proper effect to the words used in the relevant statutory provisions considered in their context and in the light of the general purposes and policy of these legislative schemes.

Ground 3 - the evidence is incapable of proving the offence charged?

I am also satisfied that this ground of appeal must be dismissed, for the following reasons
The case advanced for the Archbishop in written submissions was that the prosecution must be permanently stayed because it is foredoomed to fail (see Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 392-3). That is because, it was argued, the evidence on which the prosecution's case depends is incapable of establishing that the Archbishop had the requisite belief for commission of the offence he has been charged with, at the relevant time, mere suspicion then on his part that J had committed the 1971 s 81 offence not being sufficient for proof of such an offence.
There is no suggestion that there is any direct evidence that the Archbishop had the requisite belief as to J's commission of the alleged 1971 s 81 offence, either from the Archbishop himself, or, for example from persons to whom it is claimed that he has made any admissions. The prosecution case rests rather on inferences it claims can be drawn from the circumstantial evidence it relies on, which appears in an affidavit sworn by Ms Parouchias, a solicitor employed in the office of the Director of Public Prosecutions.
It is not in issue that circumstantial evidence is capable of proving a s 316 offence to the requisite standard (see R v Wozniak (1989) 16 NSWLR 185 at 193). Archbishop Wilson's case is, however that the evidence relied on is incapable of giving rise to the inferences the prosecution seeks to have drawn and accordingly, leave to appeal must be granted, the appeal upheld and the court attendance notice quashed.
That is in issue, as is the question of whether the case advanced raises a question of law alone.

What is a question of law alone?

In Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32, it was observed at [91] that "[a] tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law [134]. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law."
While I am satisfied that this ground of appeal raises a question of law alone, I am not satisfied that the evidence relied on is incapable of proving the alleged offence.

The evidence is capable of establishing the alleged offence

Ms Parouchias' affidavit annexes a "mini brief" tendered in the Local Court, which contains a statement of police facts, correspondence, transcripts of interviews and statements made by alleged victims, as well as statements, interviews and correspondence from other witnesses; statements of a priest who spoke to the Archbishop about certain allegations in 2004; and various records produced by the Catholic Diocese of Maitland-Newcastle during a police investigation.
For the Archbishop it was argued to be relevant that when he is alleged to have received information about the 1971 offence from the victim in 1976, he expressed disbelief and that there was no evidence that he had ever changed that view. Further, there was no evidence capable of establishing that in 2004 to 2006 he even remembered having received such allegations about the 1971 offending. In the result it could not be proven that he had ever come to form the belief on which the prosecution case depends.
The prosecution case, it was also argued, depended on it being accepted that in 2004 the Archbishop had performed some type of tendency analysis in relation to J and that he had then formed a positive belief that J had committed the 1971 offence. There was also no evidence which was capable of giving rise to such an inference.
In oral submissions, while it was conceded for the Archbishop that if it was concluded that there was some evidence of the requisite belief having been formed on his part, the prosecution's evidence having to be taken in combination and at its highest at this stage, the appeal nevertheless had to succeed. That conclusion was urged because, it was submitted, proof that someone knew of an allegation, was not rationally capable of supporting a finding that the person to whom the allegation had been made known believed it to be true, "without more".
The prosecution case was that the evidence was capable of giving rise to the necessary inferences, including as it did the receipt of credible complaints about J in 1976, from two young victims from the Maitland parish, alleging acts which involved sexual intercourse. As the result of the further disclosures made to the Archbishop in 2004, the evidence relied on, it was argued, was capable of giving rise to the inference that the Archbishop's mental state then moved from one of suspicion that the 1971 offence had been committed by J, to a belief.
In order for it to be open to conclude that the Archbishop in 2004 had a belief that J had committed the 1971 offence, of necessity the evidence must be capable of firstly, establishing that J committed the alleged offence; secondly, giving rise to the inference that in 2004 the Archbishop remembered the allegations made to him in 1976; and thirdly, giving rise to the inference that the other information which the Archbishop later received about J in 1976 and 2004 was such that it did give rise to a belief that J had committed the 1971 offence.
I am satisfied that taken at its highest, if accepted, the evidence is capable of establishing both J's commission of the alleged 1971 offence and of giving rise to these inferences. In considerable part that depends on acceptance of the victim's evidence.
Even if it be accepted, as was submitted for the Archbishop, that proof that someone knew of an allegation is not rationally capable of supporting a finding that the person to whom the allegation was made known believed it to be true, "without more", it may not be overlooked that the evidence on which the prosecution case depends does involve considerably "more", than the mere making of an allegation by a victim against J.
The capacity of the evidence to establish the existence of a memory in 2004 - 2006 of what the Archbishop was told by the alleged victim in 1976 about the alleged 1971 offending and the Archbishop's formation then of a belief about that alleged offending, has to be considered in the light of all that the evidence reveals as to the nature of what the Archbishop was told in 1976 about J's alleged sexual assaults; the person who made those allegations; as well as the relationship which then existed between the Archbishop with both the alleged victim and with the alleged offender and his knowledge of each of them.
The evidence sheds considerable light on the victim, his relationship with the Archbishop and the circumstances in which the victim approached the Archbishop for help; on J, his then position in the Church, his ongoing position of authority over the victim, as well as the nature of his relationship with the Archbishop; the nature of the acts which the victim claimed J had committed; the Archbishop's reaction to the receipt of that information; the advice which the Archbishop gave the victim; what the Archbishop said he would do as the result of the receipt of that information; what he later told the victim when he approached the Archbishop again; what other information the Archbishop received about J in 1976 from the second alleged victim, who also claimed to have been sexually assaulted by J; the circumstances in which that information has received; the Archbishop's relationship with that victim; and what the Archbishop learned in 2004 about J's alleged offending against two other alleged victims; the people who provided him with that information and his relationship with them and their relationship with the other victims; what the Archbishop then said to those people, including the advice that he then gave to another priest about his obligation to report the allegations he had become aware of about another victim to police; and what the Archbishop himself did and did not do after receiving that further information.
In assessing all of this evidence and its capacity to prove the s 316 offence charged, what must be taken into account includes that it was a 15 year old boy who in 1976 told the Archbishop that he had been sexually assaulted by J, then his parish priest, when he was an altar boy in 1971; that the Archbishop was then himself a young man, newly appointed to the priesthood and the parish, who the victim had come to know through his involvement in a Church youth group in the parish; that the victim approached him, on his account believing that he got on very well with the Archbishop and could confide in him in a way he had not, to that point, been able to do with any other adult.
The victim's allegations were about repeated offending of the most serious kind, involving masturbation, oral and other sexual assault of a young child by a priest, contrary not only to law, but it may reasonably be inferred, contrary to the teachings of the Catholic Church. Consistent with the evidence that the Archbishop reacted with shock to the information and assured the victim that such assault was not used for punishment, it may also be inferred that this was not a commonplace experience for the Archbishop at that time, but an unusual one.
That the Archbishop told the victim that he would report his allegations and that later he told him when the victim approached him again, that the matter was still being investigated, gives rise to the inference that he had reported it to those who had responsibility for such matters within the Church.
This evidence, when considered together with evidence that in 1976 the Archbishop also received similar allegations about the same priest from another child and then also reacted to the receipt of that information as the second victim described, leads to the conclusion, I am satisfied, that the evidence is capable of giving rise to the inference that the allegations about J's alleged 1971 offence were allegations which the Archbishop remembered in 2004.
That in 2004, after he had become an Archbishop, he learned from various people known to him about other similar alleged offending in the same parish by J against two other young victims; that he then counselled another priest about his obligations to report such complaints to the police; and that J was convicted of offences against one of those victims, before his death in 2006, I am satisfied, when considered together with the other evidence I have discussed, is also capable of giving rise to an inference that in 2004 the requisite belief as to J having offended against the first victim in 1971 was formed by the Archbishop.
As I have said, at this point, all that arises for determination is whether the evidence as to all of the information which the Archbishop received about J, another priest long known to him, is capable of proving that at the time alleged, he came to hold the necessary belief that J had committed the 1971 offence. That requires an assessment of the circumstantial evidence on which the prosecution case depends and a consideration of the inferences which may reasonably be drawn from that evidence.
As I have explained, I am satisfied that the inferences capable of being drawn from all of that evidence, if accepted, include that the Archbishop held the alleged belief.
In the result this ground of appeal must also fail and the appeal must be dismissed.

Orders

For the reasons given I order that: 1. Leave to appeal is granted. 2. The appeal is dismissed.

I certify that this and the …… preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Schmidt DATE: …………………………………………. ASSOCIATE: ………………………………… 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: 14 October 2016

Crimes (Amendment) Act 1984(NSW)

(Cth)1995 Crimes Legislation Amendment (Sentencing) Act 1999(NSW)

Crimes (Public Justice) Amendment Act 1990(NSW)

Crimes Legislation Amendment (Sentencing) Act 1999(NSW)

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (8)

Cases Cited (30)

Cited By (2)