Attorney-General (SA) v Jackson-Karpany - [2020] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v JACKSON-KARPANY
[2020] SASC 105
Judgment of The Honourable Justice Parker
16 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application by the Attorney-General (SA) for an adjournment and later determination of its application under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) for an Extended Supervision Order (ESO) in respect of the respondent.
On 3 June 2015, the respondent was sentenced to imprisonment for four years, five months and 11 days, backdated to commence on 30 January 2014, for offences of serious criminal trespass in a place of residence, aggravated assault causing harm and aggravated threatening harm whilst on parole. His head sentence was due to expire on 4 July 2018. On 26 June 2018, the Attorney-General lodged the ESO application. On 4 July 2018, the Court granted an Interim Supervision Order pending the determination of the ESO application. On 30 September 2018, the respondent committed a further offence of robbery and, on 27 November 2019, was sentenced to a further term of imprisonment. His non-parole period is due to end in February 2022 and his head sentence is due to expire in December 2022. The Attorney-General seeks an adjournment of the ESO application until close to the expiry of the respondent’s current sentence.
The respondent contends that the application for an adjournment and later determination of the ESO application is an abuse of process. The offence for which he is currently imprisoned is not a serious offence of violence and does not support the making on an ESO. The respondent contends that the adjournment should be refused and the application for the ESO dismissed, or alternatively that it be decided forthwith.
Held, allowing the application for adjournment:
1. The question is whether the approach adopted by the Attorney-General involves a misuse of the process of the Court for an improper purpose or in an improper way or for some collateral process.
2. The fact that a Judge of this Court was satisfied that there were proper grounds to order an Interim Supervision Order in respect of the respondent clearly establishes that there was nothing improper about the making of the application for an ESO by the Attorney-General.
3. The situation that the respondent finds himself in is one of his own making. The request for an adjournment and a deferred decision has arisen solely because the respondent committed a further offence that resulted in a lengthy term of imprisonment soon after he was made subject to the Interim Supervision Order. If that had not occurred, the ESO would have been decided on its merits long ago.
4. There is no trickery or sharp or deceptive conduct or misuse of the process of the Court on the part of the Attorney-General. She has proposed an appropriate solution to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASC 105
Decision Date: 16 June 2020

CaseChat Overview and Summary

In the matter of Attorney-General (SA) v Jackson-Karpany, the respondent, who is currently serving a term of imprisonment, applied for an adjournment of the hearing of a post-custodial order application and an extension of his current supervision order. The applicant, the Attorney-General of South Australia, opposed the application on the basis that it amounted to an abuse of the court process. The legal issues before the court were whether the application for an adjournment and the subsequent determination of the application amounted to an abuse of the court process and whether an extended supervision order should be made.

The court considered the nature of the offence committed by the respondent and whether it was a serious offence of violence. While the respondent contended that the offence did not support the making of an extended supervision order, the court noted that there were no submissions or information before it concerning any harm or risk of harm suffered by the victim. The court also considered the meaning of abuse of process and whether the application for an adjournment and the deferred decision amounted to a misuse of the process of the Court for an improper purpose or in an improper way. The court rejected the respondent’s contention that the application amounted to an abuse of process and held that the situation that the respondent found himself in was of his own making.

The court granted the application for an adjournment until a date to be fixed, with liberty to apply. The court also held that if it was not minded to grant the adjournment, an extended supervision order should be made with a duration that would allow at least 12 months supervision in the community after the expiry of the respondent’s current sentence. The court considered that the applicant should be given an opportunity to provide further submissions in support of an extended supervision order with conditions revised from those contained in the current interim order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, I reject the respondent’s contention that the application for an adjournment and later determination amounts to an abuse of process of the Court. The application should be set down on an appropriate date closer to the respondent’s likely release date. In due course, orders will need to be made for the preparation of a current report. Conclusion I grant the application for an adjournment until a date to be fixed, with liberty to apply.

Ratio Decidendi

Legal Principle Established

The applicant also submits that if the Court is not minded to grant the adjournment, an ESO should be made with a duration that would allow at least 12 months supervision in the community after the expiry of the respondent’s current sentence. If the Court determines to adopt that approach, the applicant seeks the opportunity to provide further submissions in support of an ESO with conditions revised from those contained in the current interim order. Consideration I will assume for the purposes of the present judgment that the respondent is correct in submitting that the offence that occurred on 30 September 2018 would not support the making of an ESO on the basis that it was not a “serious offence of violence” within the meaning of s 83D(1) of the CLCA. However, for completeness, I note that the applicant has not conceded this point and the position may be far less certain than the respondent has suggested. The position is simply that there is currently no information or submissions before the Court concerning any harm, or risk of harm, suffered by the victim that might bring the matter within the definition of “serious offence of violence” in s 83D(1) of the CLCA as applied by s 4(1) of the HRO Act. I turn to the question of whether the approach adopted by the applicant gives rise to an abuse of the process of the Court. While the meaning of this concept has been considered in a great many authorities, a useful summary was provided by Bleby J in JT Nominees Pty Ltd v Macks where his Honour stated:[1]Although [abuse of process] is a compendious term, it is usually associated with some improper or collateral purpose, impugning some other court decision, involving more than one action for the same relief or some complaint associated with the process itself rather than the cause of action.[1] (2007) 97 SASR 471 at [30]. In Acre Development Pty Ltd v National Companies and Securities Commission King CJ stated:[2]Processes of the court are abused when the issuing of the process or some action taken in pursuance of it amounts to a misuse of the process for some improper purpose or in an improper way.[2] (1987) 138 LSJS 481 at 484. In light of these authorities the question is whether the approach adopted by the applicant involves a misuse of the process of the Court for an improper purpose or in an improper way or for some collateral purpose. The fact that a Judge of this Court was satisfied that there were proper grounds for the issue of an interim supervision order on 4 July 2018 clearly establishes that there was nothing improper about the making of the application for an ESO on 26 June 2018. However, that is not the gravamen of the respondent’s complaint. His concern lies with the request that the matter be adjourned until close to the expiry of his current sentence in circumstances where he contends that the offending which led to this sentence would not support the making of an ESO. While the circumstances of the present matter are unusual, if not unique, the situation that the respondent finds himself in is one of his own making. I say that because the request for an adjournment and a deferred decision has arisen solely because he committed a further offence that resulted in a lengthy term of imprisonment soon after he was made subject to an interim supervision order. If that had not occurred, the application for an ESO would have been decided on its merits long ago.