Harris v Sanderson - [2016] NTSC 48

Harris v Sanderson [2016] NTSC 48
PARTIES:HARRIS, Stanley
v

SANDERSON, Melissa

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 7 of 2016 (21547537)
DELIVERED:  22 September 2016
HEARING DATES:  29 August 2016
JUDGMENT OF:  HILEY J
APPEAL FROM:  LOCAL COURT
CATCHWORDS:

CRIMINAL LAW – autrefois convict and autrefois acquit – double jeopardy – “similar offence” – s 18 Criminal Code similar to common law – whether conduct impugned for breach of alcohol protection order is the same as or included within the elements for breach of bail.
Alcohol Protection Orders Act 2013 (NT) s 23(1)
Bail Act 1982 (NT) s 37B
Criminal Code (NT) s 17, s 18, s 20, s 21, Part II AA
Domestic and Family Violence Act 2007 (NT) s 120(1)

Connelly v DPP [1964] AC 1254; Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610; R v Hofschuster (1994) 4 NTLR 179, applied.
Ashley v Marinov [2007] NTCA 1, (2007) 20 NTLR 33, distinguished.
Li Wan Quai v Christie [1906] HCA, (1906) 3 CLR 1125, referred to.
REPRESENTATION:
Counsel:
Appellant:D Bhutani
Respondent:  S Robson
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Hil1608
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Harris v Sanderson [2016] NTSC 48

No. LCA 7 of 2016 (21547537)
BETWEEN:

STANLEY HARRIS

Appellant

AND:

MELISSA SANDERSON

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 22 September 2016)
Introduction

On 20 May 2016 the appellant was convicted of and sentenced for a number of offences arising out of his consumption of alcohol on 26 September 2015. These included:
(a)engaging in conduct that is said to have breached a condition of bail, contrary to s 37B of the Bail Act 1982 (NT) (the bail charge);
(b)engaging in conduct that resulted in the contravention of an alcohol protection order, contrary to s 23(1) of the Alcohol Protection Orders Act 2013 (NT) (the APO charge); and
(c)engaging in conduct that resulted in the contravention of a domestic violence order, contrary to s 120(1) of the Domestic and Family Violence Act 2007 (NT) (the DVO charge).
The appellant was sentenced to one month imprisonment in relation to the DVO charge, and an aggregate of 21 days imprisonment in relation to the other two charges. The latter sentence was to be served concurrently with the sentence on the DVO charge.
Submissions had previously been made to and rejected by the Local Court, to the effect that because all three charges arose out of the same conduct the appellant could not be convicted of more than one of those three offences. The basis of those submissions was s 18 of the Criminal Code (NT), which codifies the common law principles of autrefois acquit and autrefois convict.
This appeal relates only to the bail…

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.

Continue reading Harris v Sanderson

Details

AGLC: Harris v Sanderson [2016] NTSC 48
Case: [2016] NTSC 48
Decision Date: 22 September 2016

CaseChat Overview and Summary

In the matter of Harris v Sanderson, the appellant challenged the validity of two convictions for breach of bail and breach of an alcohol protection order. The central legal issue was whether these two offences were sufficiently similar to each other under section 18 of the Criminal Code, such that the appellant could not be convicted of both. The appellant argued that the essential conduct impugned in both offences, namely the consumption of alcohol, was the same, and thus the charges were similar offences within the meaning of section 18. Conversely, the respondent contended that the elements of each offence were not identical, as the bail charge required additional proof regarding the specific conditions of the bail and the alcohol protection order charge required separate proof of the conditions of the alcohol protection order. The court had to determine if the consumption of alcohol was the only conduct impugned, or if other elements were also necessary to establish the respective offences.

The court considered the principles established in Pearce v The Queen, which emphasise that the elements of the offences must be identical or wholly included in one another for a plea of autrefois acquit to apply. The court also looked at R v Hofschuster, which held that the definition of "similar offence" under section 18 essentially replicates the common law doctrine that a person should not be prosecuted twice for the same criminal conduct. The court had to decide if the consumption of alcohol, while central to both offences, constituted the entirety of the conduct impugned or if other legal ingredients were also necessary to establish each offence. The court ultimately held that the consumption of alcohol was not the sole conduct impugned in each offence, as additional elements were required to prove the respective charges under bail conditions and alcohol protection orders.

Given the respondent's concession that section 18 does apply, the court focused on the second ground of appeal, which was whether section 18 precluded the convictions on the two charges. The court found that while section 20 excludes relevant findings in relation to regulatory offences from the operation of section 18, there is no such exclusion for offences of strict liability. The offences against the Alcohol Protection Orders Act are not regulatory offences, hence the appeal centred on the contention that section 18 precluded the convictions. The court concluded that the consumption of alcohol, while central to both offences, was not the sole conduct impugned, and additional elements were required to establish each offence, thus the convictions were valid.

The court ordered that the appeal be dismissed. The convictions for breach of bail and breach of an alcohol protection order were upheld as distinct offences, each with its own set of necessary elements beyond the mere consumption of alcohol.

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

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Ratio Decidendi

Legal Principle Established

The respondent conceded that s 18 does apply, thus conceding the first ground. Although a relevant finding in relation to a regulatory offence is excluded from the operation of s 18 by force of s 20, there is no such exclusion in respect of offences of strict liability. Offences against the Alcohol Protection Orders Act are not regulatory offences. Accordingly this appeal focuses on the second ground, namely the contention that s 18 precludes the convictions on those two charges.Consideration Section 18 of the Criminal Code provides as follows: Subject 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 Section 17 defines similar offence to mean: an offence in which the conduct therein impugned is substantially the same as or includes the conduct impugned in the offence to which it is said to be similar. Mr Bhutani, counsel for the appellant, submitted that the APO charge is a “similar offence” to the bail charge because the “conduct therein impugned”, namely the consumption of alcohol, is the same for both offences. On the other hand, Mr Robson, counsel for the respondent, contends that the “conduct therein impugned” is not confined to that particular conduct, but includes other matters that must be established in order to satisfy the necessary elements of each offence. In the case of the bail charge, the prosecution would need to establish the existence and conditions of the appellant’s bail, that the appellant’s consumption of alcohol amounted to a breach of such a condition, and that the appellant intended to breach, or foresaw the breach of, such bail condition. On the other hand, the APO charge would require proof of the existence and conditions attached to the alcohol protection order, and that the appellant’s consumption of alcohol amounted to a breach of such a condition. It is accepted that the relevant provisions of the Criminal Code should be construed by reference to the principles regarding autrefois acquit and autrefois convict set out in Pearce v The Queen[1] (Pearce) in the judgment of McHugh, Hayne & Callinan JJ, particularly in the last sentence of [24]. Their Honours said:… there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.(my emphasis) In R v Hofschuster,[2] Gray AJ, Kearney and Angel JJ agreeing, said, at 183-4:Section 18 and the definition of “similar offence” appear to me to substantially reproduce the common law doctrine as laid down in the judgment of Lord Morris of Borth-y-Gest in Connolly v DPP [1964] AC 1254 at 1305-1306. The fundamental principle is that a person is not to be prosecuted twice for the same criminal conduct. … I am of the opinion that “conduct therein impugned” means the facts alleged to constitute the legal ingredients of the offence and does not include facts which merely provide evidence tending to prove the presence of the essential ingredients.