Full Court Minute Books

Case S53/2022

Stephens v. The Queen

Case No.


Case Information

Lower Court Judgment

09/07/2021 Supreme Court of New South Wales (Court of Criminal Appeal) (Simpson AJA, Davies & Button JJ)

[2021] NSWCCA 152


Criminal law – Historical offences – Presumption against retrospectivity – Where, on 8 June 1984, Crimes Act 1900 (NSW) amended to repeal s 81, which proscribed indecent assault on male person, and inserted s 78K, which proscribed homosexual intercourse with male person between ages of 10 and 18 years – Where appellant prosecuted for alleged sexual offences committed against complainant between January 1982 and December 1987 – Where complainant turned 16 years old on 6 July 1987 – Where, on 29 November 2018, appellant arraigned on indictment containing 18 counts – Where date range for alleged offences extended across 8 June 1984, with indictment drafted so that one count alleged offence against s 81, and another count, pleaded in alternative, alleged offence against s 78K, with dates commensurate with dates provisions were in force – Where, on 1 December 2018, s 80AF of Crimes Act came into effect – Where s 80AF applied if: (a) uncertainty as to when during period conduct alleged to have occurred; (b) victim of alleged conduct child (under age of 16 years) for whole of period; (c) no time during that period that alleged conduct, if proven, would not have constituted sexual offence; and (d) because of change in law or change in age of child during that period, alleged conduct, if proven, would have constituted more than one sexual offence during that period – Where s 80AF provided that prosecution could rely on offence carrying lesser maximum penalty for entirety of charged period – Where indictment amended on 5 February 2019 to take benefit of s 80AF, with s 81 carrying lesser maximum penalty – Whether s 80AF of Crimes Act, which came into effect on 1 December 2018, had retrospective application to appellant's trial, which commenced no later than 29 November 2018 upon arraignment.


08/04/2022 Hearing (SLA, Canberra and remote connection)

14/04/2022 Notice of appeal

06/05/2022 Written submissions (Appellant)

06/05/2022 Chronology (Appellant)

20/05/2022 Written submissions (Respondent)

27/05/2022 Reply

16/06/2022 Hearing (Full Court, Canberra)

16/06/2022 Outline of oral argument (Appellant)

16/06/2022 Outline of oral argument (Respondent)

07/09/2022 Judgment (Judgment summary)