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Nemer v Holloway

Nemer v Holloway

Case [2003] SASC 372 7 November 2003

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Administrative Discretion

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NEMER v HOLLOWAY & ORS
[2003] SASC 372
Full Court: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: Mr Nemer has issued a summons for judicial review of a direction given by the Attorney-General to the Director of Public Prosecutions pursuant to s 9(2) of the Director ofPublic Prosecutions Act 1991 (SA) (“the Act”). The direction required the Director to appeal against a sentence imposed by a Supreme Court judge on Mr Nemer. Rather than seeking an order quashing the direction, he seeks a declaration that the direction is invalid. Alternatively, he seeks an order that there has been a “mal-exercise” of the Attorney-General’s discretion, if he had power to give the direction. The object of the proceedings is to terminate or stay an application by the Director under s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”) for leave to appeal against a sentence imposed by the Supreme Court on Mr Nemer.
Two issues arise. First, did the Attorney-General have power under the Act to give the direction? Ms Powell QC, counsel for Mr Nemer, submits that the direction is invalid because the power conferred by s 9(2) of the Act does not authorise the Attorney-General to give a direction that exercised a power vested in the Director in its application to a single and specific case, leaving no scope for the Director to make a decision at all. Second, if there is power, was the exercise of the power invalid having regard to the circumstances in which and the basis upon which the direction was given? Ms Powell argued that the exercise of the power was so unreasonable as to indicate that it had not been exercised for a proper purpose, and so was invalid.
Proceedings before the court
Mr Nemer pleaded guilty in the Supreme Court on 7 July 2003 to a charge alleging that he “discharged a firearm, knowing that the act was likely to endanger the life of Geoffrey Robert Williams and intending to endanger Geoffrey Robert Williams’ life or being recklessly indifferent as to whether the life of Geoffrey Robert Williams was endangered.”
In the course of lengthy sentencing submissions the Director said to the judge that in light of all the circumstances a suspended sentence of imprisonment was not “outside” the scope of the sentencing discretion. Later he said that “the discretion is open” and added “… it would not be appealable if your Honour did decide to go down that path.”
The judge sentenced Mr Nemer to imprisonment for three years three months, and fixed a non-parole period of two years. He ordered that the sentence be suspended upon Mr Nemer entering into a bond. Mr Nemer entered into the bond.
The sentence gave rise to a lot of comment in the media and in the community. The Premier of this State, the Attorney-General and the Shadow Attorney-General joined in the debate, criticising the sentence as inadequate. The Premier said that he wanted the Director…

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 Nemer v Holloway

Details

AGLC: Nemer v Holloway [2003] SASC 372
Case: [2003] SASC 372
Decision Date: 7 November 2003

CaseChat Overview and Summary

In the case of Nemer v Holloway, the Full Court of the Supreme Court of South Australia was asked to determine the validity of a direction given by the Attorney-General to the Director of Public Prosecutions to appeal against a sentence imposed on Mr Nemer. The primary issue was whether the Attorney-General had the power under the Director of Public Prosecutions Act 1991 (SA) to direct the Director to appeal against a specific sentence. The court concluded that while the Attorney-General had the power to give directions and guidelines to the Director in relation to the carrying out of the Director's functions, the direction in question went beyond what was permissible under the Act. The direction effectively required the Director to make a specific decision in a particular case, which the court found to be beyond the scope of the power conferred by the Act. The court emphasised that the Act intended to establish the Director as an independent office holder but qualified this independence by allowing the Attorney-General to give directions in certain circumstances. However, the direction in this case was seen as an individual exercise of the Director's function, rather than a direction affecting the carrying out of that function. As a result, the court declared the direction invalid. The implications of this decision for the pending application for leave to appeal against the sentence were left for separate consideration.

Orders