Rodway v R [1990] HCA 19; (1990) 169 CLR 515 (24 May 1990)

HIGH COURT OF AUSTRALIA

RODWAY v. THE QUEEN [1990] HCA 19; (1990) 169 CLR 515
F.C. 90/019

Criminal Law (Tas.) - Statutes

High Court of Australia
Mason C.J.(1), Dawson(1), Toohey(1), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Criminal Law (Tas.) - Sexual offences - Statute requiring corroboration of complainat's evidence - Repeal and replacement by section abolishing requirement for warning of danger of acting on uncorroborated evidence - Whether new provision applicable to trial after repeal for offence before repeal - Criminal Code (Tas.), s. 136.

Statutes - Retrospective operation - Statute requiring corroboration of complainant's evidence in trial for sexual offence - Repeal and replacement by section abolishing requirement for warning of danger of acting on uncorroborated evidence - Whether new provision applicable to trial after repeal for offence before repeal - Whether right to trial under repealed provision an accrued or acquired right - Acts Interpretation Act 1931 (Tas.), s. 16(1)(c), (e) - Criminal Code (Tas.), s. 136.

HEARING

Hobart, 1990, March 15;
Canberra, 1990, May 24. 24:5:1990
APPLICATION for special leave to appeal from the Supreme Court of Tasmania.

DECISION

MASON C.J., DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. The applicant seeks special leave to appeal against a number of convictions for the defilement of a girl under seventeen years of age and indecent assault of a female. Each offence was alleged to have been committed upon one or other of three complainants between June 1982 and October 1986. During that period, defilement was an offence under s.124(1) of the Criminal Code (Tas.) and indecent assault of a female was an offence under s.127 of the Code. Both provisions were contained in Ch.XIV of the Code, which was headed "Crimes Against Morality". Also during that period, s.136(1), which is in the same chapter, provided:
"No person shall be convicted of any crime under the
provisions of any of the foregoing sections of this
chapter, or of an attempt to commit the same, on the
evidence of the person in respect of whom the crime
is alleged to have been committed or attempted, unless
the evidence of such person is corroborated in some
material particular by other evidence implicating the
accused."
2. The applicant, who was charged on 12 November 1987, was committed for trial on 16 May 1988. His trial commenced on 13 February 1989. Earlier, by amendment to the Criminal Code which came into force on 26 November 1987, s.136 of the Code was repealed and a new section substituted for it. The new section reads:

"(1) At the trial of a person accused of a crime
under chapter XIV or XX, no rule of law or practice
shall require a judge to give a warning to the jury
to the effect that it is unsafe to convict the person
on the uncorroborated evidence of a person against
whom the crime is alleged to have been committed.
(2) A judge shall not give a warning of the kind
referred to in subsection (1) unless satisfied that
the warning is justified in the circumstances.

The learned trial judge held that the new s.136 applied upon the trial of the applicant and that the old s.136 had no application. The Court of Criminal Appeal upheld this ruling.

3. The applicant submits that the ruling of the trial judge gave retrospective effect to the relevant provisions of the amending Act contrary to both common law principle and s.16(1) of the Acts Interpretation Act 1931 (Tas.). Section 16(1), so far as is relevant, provides:

"Where an Act repeals any other enactment then, unless
the contrary is expressly provided, such repeal shall
not-
(a) ...
(b) ...
(c) affect any right, privilege, obligation, or
liability acquired, accrued, or incurred
under any enactment so repealed;
(d) ...
(e) affect any investigation, legal proceeding, or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture, or
punishment as aforesaid,

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed."

4. The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

5. Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural. This distinction was recognized by Williams J. in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 278, and his remarks were adopted by the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara (1983) 1 AC 553, at p 562. Gibbs J. re-examined the question in Yrttiaho v. Public Curator (Queensland) [1971] HCA 29; (1971) 125 CLR 228 and he expressed his view, at p 242, as follows:

"Limitations may be regarded as being only of a procedural
nature and, therefore, unless a contrary intention appears,
retrospective in operation, if, being an amendment enlarging
time, it took effect before the right sought to be enforced
had become finally barred by lapse of time, and if, being an
amendment reducing time, it left time after its commencement
within which an action might be brought."

6. It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon C.J. in Maxwell v. Murphy to formulate the general rule in terms which did not rest simply upon that classification. At p 267 he said:

"The general rule of the common law is that a statute
changing the law ought not, unless the intention appears
with reasonable certainty, to be understood as applying to
facts or events that have already occurred in such a way
as to confer or impose or otherwise affect rights or
liabilities which the law had defined by reference to the
past events. But, given rights and liabilities fixed
by reference to past facts, matters or events, the law
appointing or regulating the manner in which they are to be
enforced or their enjoyment is to be secured by judicial
remedy is not within the application of such a presumption.
Changes made in practice and procedure are applied to
proceedings to enforce rights and liabilities, or for
that matter to vindicate an immunity or privilege,
notwithstanding that before the change in the law was made
the accrual or establishment of the rights, liabilities,
immunity or privilege was complete and rested on events or
transactions that were otherwise past and closed. The basis
of the distinction was stated by Mellish L.J. in Republic of
Costa Rica v. Erlanger ((1876) 3 ChD 62). 'No suitor has
any vested interest in the course of procedure, nor any
right to complain, if during the litigation the procedure is
changed, provided, of course, that no injustice is done' (at
p 69)."

7. The citation from Republic of Costa Rica v. Erlanger may even be too wide were it not for the qualification that no injustice should be done, since there is at least one case in which a vested right in a particular procedure, or something very like it, appears to have been recognized. In Newell v. The King [1936] HCA 50; (1936) 55 CLR 707 an accused was arraigned upon an indictment for manslaughter to which he pleaded not guilty. Under the applicable law, which was the Tasmanian Criminal Code, his trial began at that point although the matter was then adjourned. Before the trial was resumed the Jury Act 1936 (Tas.) was enacted. It altered the requirement that there be a unanimous verdict and provided for the decision of a majority of ten jurors after two hours' deliberation. Latham C.J. thought the right to a jury so fundamental that it could not be a mere matter of procedure. Dixon J. said (at p 712) that the prisoner's plea of not guilty had the "conspicuous feature ... that ... he was placed in jeopardy of the unanimous verdict of twelve men". His Honour thought that the general words of the amendment - "on the trial of any criminal issue" - should not be construed as depriving a person "standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict". Evatt J. (at p 713) said that unanimity of decision in criminal issues was an essential and inseparable part of the right of trial by jury which was a "fundamental right of the subject". His Honour rejected the proposition that the right to a unanimous verdict was a mere matter of procedure. Consequently, he thought that "the better interpretation" of the amendment was that it only applied to "criminal issues" joined after the amendment was passed. However, all members of the Court expressed themselves to be in agreement and, notwithstanding the manner in which Latham C.J. and Evatt J. expressed themselves, what appears to have been important was that upon the commencement of his trial the accused had joined issue with the Crown and had placed himself in jeopardy of conviction upon the unanimous verdict of twelve men, not a majority of ten. It was in those narrow circumstances inappropriate to give the Jury Act a retrospective operation by applying it to a trial already begun.

8. But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish L.J. in the passage cited by Dixon C.J. in Maxwell v. Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v. Hale [1860] EngR 1191; (1860) 6 H & N 227 (158 ER 94), per Wilde B. at p 233 (p 96 of ER); Attorney-General v. Sillem [1864] EngR 352; (1864) 10 HLC 704 (11 ER 1200), per Lord Wensleydale at p 763 (p 1224 of ER); Warner v. Murdoch (1877) 4 ChD 750, per James L.J. at p 752.

9. The applicant placed reliance upon a decision of the Full Court of the Supreme Court of South Australia, Attorney-General's Reference No.1 of 1988 (1988) 49 SASR 1. In that case the Court was concerned with the application of the Evidence Act Amendment Act 1988 (S.A.) which, amongst other things, repealed in certain specified circumstances a prohibition against the conviction of an accused upon the uncorroborated evidence of a child under ten years of age where the accused denied the charge on oath. The accused in question was charged with one count of unlawful sexual intercourse with, and two counts of indecent assault on, a person under the age of twelve years. The amending Act came into force after the offences with which the accused was charged were alleged to have been committed but before his trial commenced. The trial judge ruled that the relevant provision of the amending Act had no application in the trial of the accused. The accused indicated that he would deny the charges on oath. The Crown then tendered formal evidence only and by direction the accused was found not guilty upon all three counts. The trial judge reserved certain questions for the Full Court.

10. The Full Court, relying on the passage from the judgment of Dixon C.J. in Maxwell v. Murphy which we have set out above, upheld the trial judge's ruling. King C.J. said, at p 6:

"There is a sense in which laws relating to the
competence of witnesses and the quantum of evidence required
to prove guilt can be said to deal with matters of
procedure. Where such laws, however, provide substantial
protections against wrongful conviction, they are treated by
the law as conferring substantive rights upon citizens and
as going beyond the realm of mere procedure. Prior to the
commencement of this amending Act there existed an immunity
from conviction, assuming the charge to be denied on oath,
on the uncorroborated evidence of a child under ten years or
upon the unsworn evidence of a child then not authorised to
give such evidence. In a sense that was a right enjoyed by
the defendant in common with all citizens not to be placed
in jeopardy of conviction on such evidence. The defendant,
in common with other citizens, has been deprived of that
right by the amending Act."

11. Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon C.J. in Maxwell v. Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304; Baker v. Campbell [1983] HCA 39; [1983] HCA 39; (1983) 153 CLR 52, at pp 96-97, 104, 116, 123; Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, at pp 289-290; Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, at p 495.

12. Whether or not the previous requirement of the law that certain evidence required corroboration before it could safely be relied upon could be described as basic or fundamental, both in Attorney-General's Reference No.1 of 1988 and in this case the statutory amendments were clearly intended to alter the existing law with respect to corroboration. Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation. It follows that, in our view, Attorney-General's Reference No.1 of 1988 was wrongly decided and that the Tasmanian Court of Criminal Appeal was correct in declining to follow the decision.

13. Nor, in our view, does s.16(1) of the Acts Interpretation Act support the applicant's case. Paragraph (c) of that sub-section applies only to preserve acquired or accrued rights and, as we have endeavoured to explain, the applicant had acquired no right to a particular mode of procedure at his trial, at all events before his trial had commenced. A right to a particular procedure is acquired only when the occasion for the application of that procedure arises. Indeed, the difficulty experienced by counsel for the applicant in identifying an earlier time at which such a right might be acquired points to the inevitability of that proposition. If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all.

14. Less weight was placed by counsel for the applicant upon par.(e) of s.16(1) of the Acts Interpretation Act, no doubt because of the decision of this Court in Yrttiaho v. Public Curator (Queensland). In that case, Gibbs J., with whom the majority agreed, held that the equivalent paragraph of the Queensland Acts Interpretation Acts 1954 to 1962 was restricted in its application to the preservation of the existence of the legal proceeding or remedy of which it speaks and that it did not preserve the procedure to be observed in the litigation. At p 246 he said:

"I conclude therefore that s.20(1)(e) refers to the legal
proceeding and remedy themselves, and that the section does
not reveal an intention to reverse the established rule of
the common law that a merely procedural statute is, in the
absence of an indication to the contrary, to be construed as
retrospective."

In Yrttiaho v. Public Curator (Queensland), by an amending rule to the Rules of the Supreme Court (Q.), there was a reduction from six years to three years of the period after which leave to take a fresh step in an action was required. The reduction still left the appellant (the plaintiff in the action) with time to take a fresh step in his action without leave. The rule (to which the Acts Interpretation Acts applied) was held to apply to the appellant. Gibbs J. spoke of a merely procedural statute as having a retrospective operation because, although its operation was in the future, its application was by reference to past events. It may, as we have suggested, be better to regard the operation of such a statute as prospective, but what was intended is quite clear. Even if the applicant in this case could be said to have acquired the right to trial at some time before the amending Act came into force, it would not help him because that Act did nothing to affect that right notwithstanding that it affected the manner in which the trial was to be conducted.

15. We would grant special leave to appeal but, for the foregoing reasons, dismiss the appeal.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.