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Janz v Woolven

Janz v Woolven

Case [1991] HCATrans 80 15 March 1991

Appeal

Statutory Construction

Sentencing

Jurisdiction

Criminal Law

Statutory Interpretation

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A29 of 1990
B e t w e e n -
MICHAEL ARNOLD JANZ

Applicant

and
BARRY WILLIAM WOOLVEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 10.25 AM

Janz

15/3/91

MR M.L. ABBOTT, QC:

May it please the Court, I appear for

the applicant with my learned friend,

MR P.J. HASKETT. (instructed by the Legal Services
Commission of South Australia)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

May it please the Court, I appear for the respondent with my learned friend, MR P.Y. WILSON.
(instructed by Crown Solicitor for South Australia)

MASON CJ: Yes.

MR ABBOTT:

There are proposed substituted grounds of appeal

which we have filed with the Court.

MASON CJ: Yes, we have them.

MR ABBOTT:

And I seek to rely in this application for leave

upon those proposed substituted grounds of appeal.
We have also filed an outline of argument of the
applicant.

MASON CJ: Yes, we have that.

MR ABBOTT:

And I would seek to address the Court pursuant

to the outline. It is our submission that the
questions of general principle and public
importance which are raised by this application for
special leave are whether, given that in some
South Australian Acts which provide for
offences - - -

MASON CJ: Perhaps you might proceed to the substantial

point directly, Mr Abbott.

MR ABBOTT:

Yes, if the Court pleases.

The substantial

point has as its starting point Cobiac v Liddy; a
decision of this Court, decided some years ago.
Cobiac v Liddy would, but for the provisions of the
Criminal Law (Sentencing) Act, according to the

judgment of the Full Court in this case, have

applied. The Full Court in this case held that
because of the provisions of the Criminal Law
(Sentencing) Act, namely, sections 20 and 37, that,
in effect, Cobiac v Liddy did not apply and that
there was therefore a complete prohibition on the
utilization of powers contained in the Criminal Law
(Sentencing) Act. If I could take the Court to
those sections.

MASON CJ:	We are having some difficulty locating that statute, Mr Abbott; that is the problem at the
moment.
MR ABBOTT:	May I wait then while the Court obtains the

statute.

Janz

15/3/91

MASON CJ: Are the provisions sufficiently set out in the

judgment of the Full Court?

MR ABBOTT:

Yes.

MASON CJ: Well, perhaps we will look at those pending the

arrival of the statute itself.

MR ABBOTT:

The application book, page 10

MASON CJ:

We have the statute now.

Now, you want to take

us to section 20?

MR ABBOTT:

Yes.

There are two parts of the Criminal Law

(Sentencing) Act which are appropriate. Part II of
the Criminal Law (Sentencing) Act which commences
with section 6 and…

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 Janz v Woolven

Details

AGLC: Janz v Woolven [1991] HCATrans 80
Case: [1991] HCATrans 80
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Barry William Woolven, sought to appeal a decision of the Full Court of South Australia. The dispute concerned the interpretation and application of provisions within the South Australian Criminal Law (Sentencing) Act, specifically sections 15, 16, 20, and 37, in relation to the sentencing of offenders.

The central legal issue before the High Court was whether the Criminal Law (Sentencing) Act, particularly sections 20 and 37, operated to prohibit the exercise of powers conferred by sections 15 and 16 of that same Act. These latter sections allowed courts to dismiss an offence without recording a conviction or to impose a fine without recording a conviction, even where a minimum penalty was fixed by a "special Act." The applicant contended that the Full Court had erred in holding that the Criminal Law (Sentencing) Act, by virtue of sections 20 and 37, created a complete prohibition on the utilisation of these sentencing powers.

The applicant argued that the provisions of sections 15 and 16, which permitted sentencing without recording a conviction, were not derogated from by section 20(b). Section 20(b) stated that nothing in its Division "derogates from a provision of a special Act that expressly prohibits the reduction, mitigation or substitution of penalties." The applicant's submission was that the ability to dismiss an offence without recording a conviction, or to impose a fine without recording a conviction, did not constitute a "reduction, mitigation or substitution of penalties" in the sense contemplated by section 20(b). The applicant relied on the wording "without recording a conviction" in sections 15 and 16 as being central to this argument.

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