'Absolute retroactivity' would deny justice to victims of crime

Chief Justice John Murray: The Supreme Court's declaration that the law on statutory rape is unconstitutional does not mean that everything previously done under that law is void and of no effect, the Chief Justice has ruled in giving his reasons for rejecting a bid for release by 40-year-old Mr A, who is serving a three-year sentence, for statutory rape of a 12-year-old girl.

Such "absolute retroactivity" in cases already decided by the courts would deny justice to the victims of crime, offend against the fundamental and just interests of society, undermine the need for legal certainty in disputes and have "dysfunctional effects" on the administration of justice, the Chief Justice, Mr Justice John Murray, said.

He said he was unaware of any other legal system that provided for such unqualified retroactivity.

The Chief Justice was outlining the detailed reasons for the five judge court's unanimous decision last month to overturn a High Court decision to free Mr A, jailed in November 2004 for statutory rape of a 12-year-old friend of his daughter's after he plied the girl with alcohol.

The High Court had freed Mr A on grounds that his detention was unlawful in light of a Supreme Court decision in another case, CC, which found that the law creating the offence of statutory rape - Section 1.1 of the Criminal Law Amendment Act 1935 - was unconstitutional as it did not allow for a defence of genuine mistake about a girl's age.

Yesterday, all five Supreme Court judges gave separate judgments outlining why they disagreed with the High Court's decision.

Where a law is unconstitutional, the courts must declare it to be so, irrespective of the consequences, the Chief Justice said.

Any qualification of the retrospective effect of such a declaration must be consistent with constitutional justice and the fundamental rights of persons.

Where to draw the line in limiting retrospective effect was a difficult issue for the courts.

The issue here was the retrospective effect on cases already decided of a finding that the provision of an Act is unconstitutional.

Section 1.1 did not apply to rape cases generally of adults or minors but was a specific statutory offence prohibiting consensual sexual intercourse with girls under the age of consent.

Mr A had advanced the "stark" argument that, because Section 1.1 was declared unconstitutional, it could not be deemed to be the law when he was convicted and therefore he remained in jail on foot of an offence that no longer exists.

No such later collateral attack had ever been brought by a person whose case had been finally decided and there had never been a finding of such unrestricted retrospectivity of the kind sought by Mr A.

It could not be a principle of our constitutional law that cases which have been finally decided before our courts on foot of a law later found unconstitutional must invariably be set aside as null and of no effect.

There must be a distinction between a declaration of unconstitutionality and its retrospective effect which distinction had even greater force when it involved cases earlier finally determined by the courts. Any other approach would render the Constitution "dysfunctional".

In a criminal prosecution where the State relied in good faith on a law in force at the time and where an accused did not challenge the conduct of the prosecution of any grounds, including unconstitutionality of the law, prior to the cases being determined finally, then the final decision in that case must be deemed to be and to remain lawful, notwithstanding any later finding that the law is unconstitutional, he held.

While this was the general principle to be applied in such cases, there could be "wholly exceptional" reasons relating to some fundamental unfairness which would lead to verdicts being overturned.

He said there were no grounds under which Mr A's case could be such an exception.

Mr A's argument had no regard to other principles of the Constitution which is holistic and provides a full and complete framework for the functioning of a democratic State and an ordered society in accordance with the rule of law, the due administration of justice and the interests of the common good.

In providing for the common good, the application of the Constitution could not be distorted by focusing on one principle to the exclusion of others.

What was novel about this case was Mr A, whose case was finally determined in 2004, who had not appealed, who had brought no constitutional challenge to the law under which he was convicted and who had at all times admitted he knew his victim was under the age of consent, was claiming to be directly affected by the decision in CC.

There was a competing interest between his claim that he was convicted under a law since found unconstitutional and the interests of justice, including the rights of his victim, in circumstances where it was acknowledged his conviction and sentence were not tainted by unfairness or injustice.

The common law did not envisage absolute retroactivity of judicial decisions and did not permit previous cases, even those decided on the basis of laws later declared unconstitutional, to be reopened. It had never been argued this approach was inconsistent with the Constitution.

Although judicial findings did have retroactive effect, there were important exceptions to that effect.

"A line must be drawn in the interests of justice", the administration of justice was not "of perfect symmetry" and fundamental interests of public policy required limits on the retroactive effect of judicial decisions.

"The law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry."

The Constitution was a living document which had to be interpreted in accordance with contemporary circumstances.

The European Courts of Human Rights and of Justice also did not impose absolute retroactivity on their findings that certain measures were void and similar approaches had been taken by the US, Indian and Canadian Supreme Courts.