COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PRIOR(2) AND OLSSON(3) JJ
CWDS (per Cox and Prior JJ) Statutes - Acts of Parliament - operation and effect of statutes - retrospective operation - interpretation - consideration of extrinsic matters
Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - Statutes Amendment (Truth in Sentencing) Act 1994-1995 s20 - transitional provision for prisoners sentenced before abolition of remissions regime - effect of section on prisoner who chose not to take his parole and therefore was obliged to spend longer in prison than sentencing judge had envisaged - whether section should be held to apply to relatively small number in appellant's situation - Court's obligation to accept statutory modification of transitional prisoners' sentences.
Statutory interpretation - Statutes Amendment (Truth in Sentencing) Act Amendment Act 1995 - whether court may have regard to Minister's second reading speech to ascertain the amending bill's purpose, or at least to ensure that Parliament had in mind cases such as the appellant's - authorities considered.
(per Olsson J) Statutes - Acts of Parliament - interpretation - operation and effect of statutes - retrospective operation - Appeal against order of Supreme Court Judge dismissing summons for writ of habeas corpus - appeal against original sentence imposed in 1989 pursuant to legislation at time of sentencing, appellant was entitled to remissions which would have qualified him for release in 1994, or if parole not accepted, in 1995 - appellant elected not to accept parole as there was a legitimate expectation of an unconditional release - Legislative changes in 1995 to Truth in Sentencing Act 1994 which prevented any reduction of sentence for prisoners serving an unexpired balance of term of imprisonment - effect of this amendment was that appellant not eligible for release until 1996 - whether Debelle J erred in finding the Truth in Sentencing Act amendment had retrospective operation - whether original sentence could be set aside - intention of legislature was to abolish remlsslons regime - Legislation had retrospective effect - court has no jurisdiction to prevent effect of amendment - decision by Debelle J correct appeal…
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
AGLC
Owen v South Australia [1996] SASC 5574
Case
[1996] SASC 5574
Decision Date
CaseChat Overview and Summary
The appellant, Mr Owen, appealed against an order of the Supreme Court of South Australia dismissing his application for a writ of habeas corpus and his appeal against his original sentence. The original sentence was for manslaughter, imposed in 1992, with a non-parole period of seven and a half years. Mr Owen was entitled to remissions under the Correctional Services Act 1982, which would have resulted in his release in December 1994 if he accepted parole or in December 1995 if he did not. Mr Owen chose not to accept parole, expecting release in December 1995. However, legislative changes in 1995, which abolished the remissions system, resulted in his release date being changed to June 1996. Mr Owen argued that the legislative changes had retrospective effect and that the court should reduce his sentence to reflect the new circumstances.
The court considered the legal issues of whether the 1995 legislative changes had retrospective effect and whether the court could reduce Mr Owen's sentence to reflect the new circumstances. The court held that the 1995 legislative changes did have retrospective effect and that the court was obliged to give effect to the law. The court also held that to reduce Mr Owen's sentence in the face of the plain intendment of the legislation would be constitutionally possible but, the court thought, constitutionally wrong. Parliament was entitled to have the last word.
The court also considered whether the court could have regard to the Minister's second reading speech to ascertain the amending bill's purpose, or at least to ensure that Parliament had in mind cases such as the appellant's. The court held that it was permissible to look at the Minister's second reading speech on the 1995 amendment to s20 of the Truth in Sentencing Act in order to identify the purpose of the amendment.
The court dismissed both the appeal against the order dismissing the writ of habeas corpus and the appeal against the original sentence. The court held that the appeal against sentence must also be dismissed, as Parliament had unmistakably exercised its power to change the law and the consequence of a particular sentence according to law. This Court could not interfere.
The final orders of the court were that the appeal against the order dismissing the summons for a writ of habeas corpus be dismissed and that the appeal against the original sentence be dismissed.