Andalong v O'Neill

Case [2017] NTSC 77

CITATION:Andalong v O’Neill [2017] NTSC 77

PARTIES:  ANDALONG, Samuel

v

O’NEILL, Wayne

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  REFERENCE from SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:No. LCA 1 of 2017 (21558707)

DELIVERED:  19 October 2017

HEARING DATES:  29 August 2017

JUDGMENT OF:  Grant CJ, Southwood and Riley JJ

CATCHWORDS:

CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DRIVING OFFENCES – PLEA OF AUTREFOIS CONVICT

Whether defence to a charge that accused had already been found guilty of a “similar offence” – common law plea of autrefois convict requires comparison between elements of the two offences under consideration – statutory defence required comparison between the offence charged and “an offence in which the conduct therein impugned is substantially the same” or which “includes the conduct impugned in the offence to which it is said to be similar” – definition of “similar offence” imported same comparison between the elements or ingredients of the two offences – offence under s 34(1) of Traffic Act (NT) with which the appellant was charged not a “similar offence” within the meaning of s 18 of the Criminal Code (NT) to the offence under s 33(1) of Traffic Act to which the appellant pleaded guilty.

Criminal Code (NT) s 17, s 18, s 20
Motor Vehicles Act (NT) s 13, s 45
Supreme Court Act (NT) s 21
Traffic Act (NT) s 33, s 34, s 51

Ashley v Marinov (2007) 20 NTLR 33, Connelly v Director of Public Prosecutions (UK) [1964] AC 1254, Hallion v Samuels (1978) 17 SASR 558, Haywood v Dodd (unreported, Supreme Court the Northern Territory, Thomas J, 24 October 1997), Knight v The Queen; Cassidy v The Queen [2010] NTCCA 15, Pearce v The Queen (1998) 194 CLR 610, The Queen v Barlow (1997) 188 CLR 1, R v Hofschuster (1994) 4 NTLR 179, R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219, R v P, NJ (No 2) (2007) 99 SASR 1, Vallance v R (1961) 108 CLR 56, Watson v Chambers [2013] NTSC 7, referred to.

Thomson Reuters, The Laws of Australia.

REPRESENTATION:

Counsel:

Appellant:M Aust with P Coleridge

RespondentM Nathan SC with L Hopkinson

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

RespondentOffice of the Director of Public Prosecutions

Judgment category classification:    A

Number of pages:  23

IN THE FULL COURT
OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Andalong v O’Neill [2017] NTSC 77

No. LCA 1 of 2017 (21558707)

BETWEEN:

SAMUEL ANDALONG

Appellant

AND:

WAYNE O’NEILL

Respondent

CORAM:     GRANT CJ, SOUTHWOOD and RILEY JJ

REASONS FOR JUDGMENT

(Delivered 19 October 2017)

THE COURT:

  1. The issue for determination concerns the operation of s 18 of the Criminal Code (NT), which provides relevantly that it is a defence to a charge to show that the accused has already been found guilty or acquitted of the same or a similar offence. The matter is…

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AGLC
Andalong v O'Neill [2017] NTSC 77
Case
[2017] NTSC 77
Decision Date

CaseChat Overview and Summary

The issue for determination in the case of Andalong v O'Neill was whether the appellant, who had been found guilty of a previous offence, could rely on the defence of autrefois convict to avoid conviction for a subsequent offence under the Criminal Code (NT). The appellant had been found guilty of driving a vehicle that did not have a current compensation contribution, an offence under s 34(1) of the Traffic Act (NT), despite having been found guilty of a similar offence under s 33(1) of the Traffic Act (NT) on a previous occasion. The appellant argued that the two offences were similar within the meaning of s 18 of the Criminal Code (NT) and that he was therefore entitled to a defence of autrefois convict. The court had to determine whether the two offences were indeed similar within the meaning of the relevant statutory provisions.

The court examined the statutory provisions and the common law principles relevant to the defence of autrefois convict. It noted that the statutory defence required a comparison between the offence charged and “an offence in which the conduct therein impugned is substantially the same” or which “includes the conduct impugned in the offence to which it is said to be similar”. The court held that the definition of “similar offence” imported the same comparison between the elements or ingredients of the two offences. It concluded that the offence under s 34(1) of the Traffic Act (NT) with which the appellant was charged was not a “similar offence” within the meaning of s 18 of the Criminal Code (NT) to the offence under s 33(1) of the Traffic Act (NT) to which the appellant pleaded guilty. The court found that the two offences had different elements or ingredients and that the appellant was therefore not entitled to a defence of autrefois convict.

The court dismissed the appeal and held that the appellant was guilty of the offence of driving a vehicle in relation to which a current compensation contribution had not been paid. The court held that the appellant's previous conviction for a similar offence did not provide a defence to the subsequent offence. The court emphasised the importance of the comparison between the elements or ingredients of the two offences in determining whether they were similar within the meaning of the statutory provisions. The court's decision highlights the need for careful consideration of the elements or ingredients of the offences in question when determining whether a defence of autrefois convict is available.

Orders

Orders of the court

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Background

Background to the litigation

The issue for determination concerns the operation of s 18 of the Criminal Code (NT), which provides relevantly that it is a defence to a charge to show that the accused has already been found guilty or acquitted of the same or a similar offence. The matter is the subject of a reference to the Full Court pursuant to s 21 of the Supreme Court Act (NT).The agreed facts and issues The agreed facts placed before this court reveal that on 25 November 2015 the appellant was apprehended while driving a motor vehicle along the Stuart Highway near Katherine. The appellant was intoxicated at the time. It was later discovered that the appellant was disqualified from driving a motor vehicle, that the vehicle he was driving was unregistered, and that no compulsory compensation contribution had been paid in relation to the vehicle. The appellant was charged with a range of offences under the Traffic Act (NT), including driving whilst disqualified; driving with a high range breath alcohol content; driving an unregistered vehicle on a public street; and driving a vehicle in relation to which a current compensation contribution had not been paid. It is those last two charges with which this reference is concerned. On 4 August 2016, the appellant entered pleas to the offences of driving disqualified and driving with a high range breath alcohol content and was sentenced in relation to those matters. He indicated that he would plead guilty to the offence of driving an unregistered motor vehicle, but contended that the offence of driving a vehicle which did not have a current compensation contribution was a “similar offence” within the meaning of s 17 of the Criminal Code giving rise to a defence under s 18(b) of the Criminal Code. On 25 October 2016, the Local Court published reasons rejecting this contention and found the appellant guilty of both offences. It is an agreed fact that in the Northern Territory fees for the registration of a motor vehicle and the compulsory compensation contribution are paid in the form of a single fee at the time of registration. A sum representing the compulsory compensation contribution is then withheld by the Registrar of Motor Vehicles and paid to the Motor Accidents (Compensation) Commission. On 22 November 2016, a notice of appeal was filed in the Supreme Court. The sole ground of appeal is that the Local Court erred “in finding that the defence in section 18 of the Criminal Code (NT) did not apply to [the offence of driving a vehicle in relation to which a current compensation contribution had not been paid]”. The issue arising for determination in the appeal is as follows:Is the offence under s 33(1) of the Traffic Act (NT) of which the appellant was found guilty a “similar offence” within the meaning of s 18 of the Criminal Code (NT) to the offence under s 34(1) of the Traffic Act (NT) of which the appellant was also found guilty?The statutory provisions Section 18 of the Criminal Code provides:Defence of previous finding of guilt or acquittalSubject to sections 19 and 20, it is a defence to a charge of any offence to show that the accused person has already been found guilty or acquitted of:(a) the same offence;(b) a similar offence;(c) an offence of which he might be found guilty upon the trial of the offence charged; or(d) an offence upon the trial of which he could have been found guilty of the offence charged.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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