PNJ v The Queen

[2008] HCATrans 291

[2008] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2008

B e t w e e n -

PNJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 8 AUGUST 2008, AT 9.34 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR H.M. HEUZENROEDER, for the applicant.  (instructed by George Mancini & Co)

MR M.G. HINTON, QC:   May it please the Court, I appear with my learned friend, MS H.H.L. DUONG, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GUMMOW J:   Thank you, Mr Wells.

MR WELLS:   May it please the Court, even assuming a power to backdate the commencement of the life sentence and the mandatory non‑parole period, this application, we submit, provides an unusually appropriate vehicle for identifying and expounding the elements of double punishment, uncomplicated by the additional layer of a sentencing discretion. 

GUMMOW J:   We do not know yet, do we, if there is any double punishment?  Is there not a problem with prematurity?

MR WELLS:   Your Honour, the proposition that we put to counter that contention on behalf of the director is this, that the prospect of impermissible and unavoidable double punishment if the applicant is convicted on the present charge upon a trial presents the present reality of an abuse of process in the very prosecution of a charge.  The only way for the applicant to avoid what we contend would be a double punishment if there were a conviction upon a trial would be for the applicant now to plead guilty, that is, to avoid ‑ ‑ ‑

HAYNE J:   It is the injection of the “if” clause that presents the prematurity problem, is it not, “if he is convicted”?

MR WELLS:   With respect, your Honour, no.  The reason why it does not present prematurity is that the applicant is confronted now with an oppressive choice.  He must make now, before trial, this decision, “Do I plead not guilty and submit myself to the risk of double punishment should I be convicted or should I now avoid that risk which has been created”, we submit, “by an impermissible and unavoidable presentation of double punishment by pleading guilty?”

The abuse of process exists at two levels.  The first level is double punishment if convicted, but the principal level is the oppression which presents to him now because he must make a choice now, “Do I take advantage of the legislative scheme by pleading guilty, which would then not submit me to double punishment”, since the mandatory non‑parole period would not apply, “or do I take the risk on a trial?”  That presents a present abuse, in our respectful submission because the choice ‑ ‑ ‑

GUMMOW J:   Is there any authority, Mr Wells, on this question – we are talking about an oppression here – that ties the notion of oppression to this particular stage of events?

MR WELLS:   Yes, your Honour.

GUMMOW J:   The cases in this court seem to involve two convictions.  They are at a later stage they have come here.

MR WELLS:   Yes, that is correct.  That is why this presents a particular opportunity to examine this, your Honour.  The authorities that we rely on are the authorities which we refer to in our outline which are based upon the case in this Court of Meissner which was a case about an attempt to pervert the course of justice by placing pressure on somebody to plead guilty.

GUMMOW J:   What is the citation?

MR WELLS:   Your Honours will find that in footnote 10 on page 174 in the applicant’s reply outline.  The run of cases which identify the principle in Meissner which says if you deny an accused person the opportunity of a free choice to plead guilty or not guilty in their interests, then that will be an attempt to interfere with the course of justice and that proposition has been taken up in the subsequent cases in the Courts of Criminal Appeal in New South Wales and in South Australia considering the issue of whether there has been the exercise of a free choice in a decision to plead guilty or not guilty.

Our submission is that the presence of the inevitability of double punishment, should there be a conviction, operates upon the accused at this stage, that is, before he is presented for trial, because it presents him with an unfair and oppressive choice as to whether to plead guilty or not guilty because if he pleads guilty, the legislation, section 32A of the Sentencing Act, provides that as one of the very few circumstances in which the mandatory non‑parole period for murder of 20 years does not apply.  So the accused is faced with this, that if he proceeds to trial and does not plead guilty but is convicted, then his remedy, the remedy that he presently seeks, is simply too late.  He should never have been presented for trial.  The choice that was put to him was an unfair and oppressive choice.

We refer to it, your Honours, as a dual abuse of process.  It operates at two levels.  In prospect – and we readily accept that there is in that sense a prospect of abuse in the imposition of double punishment should there be a conviction, but in reality and presently there is an abuse because of the submission that we put, namely, that he does not presently have that free choice to plead whether guilty or not guilty in his interests because of ‑ ‑ ‑

GUMMOW J:   We hear what you say, Mr Wells, but is this ground reflected in the draft notice of appeal as it stands at the moment?

MR WELLS:   That was the intention, your Honour.  If your Honour will pardon me for a moment.

GUMMOW J:   Page 147.

MR WELLS:   Yes, thank you, your Honour.  It is intended to be raised, your Honour, by the ground paragraph 2 and ground paragraph 4.  I think, your Honours, it is probably principally paragraph 2 in which it is intended to be raised, may it please the Court.  That is, in our respectful submission, the reason why prematurity is not the answer to this case.  He is faced with a present oppression.

GUMMOW J:   Is this point of prematurity debated in the South Australian Supreme Court at all?

MR WELLS:   It was debated, your Honours, before Justice Layton, at first instance, but it did not assume a large proportion in the Court of Criminal Appeal.

GUMMOW J:   The point was not taken against you, I suppose.

MR WELLS:   That would be right, your Honours.  In fact, if anything, it was assumed in our favour that the risk posed by the prospect of double punishment raised the ground for a stay but in the context that we have expounded it to this Court.  I cannot say that it was the subject of a principal and direct debate in the Court of Criminal Appeal, your Honours, but what lay behind the submissions that we put was this dual abuse of process.

GUMMOW J:   Thank you.

MR WELLS:   Your Honours, it is now exactly 10 years since the decision of this Court in Pearce v The Queen.  That case clarified the scope of the plea in bar and identified limits to a doctrine that had previously, that is, before then, been applied with some well‑intentioned looseness.  The result was that an area of potential abuse previously thought to be patrolled by the plea in bar was exposed to judicial supervision by other means and, in particular, as we identify in this case, the ability of the prosecuting authorities to charge more than one offence arising out of the one criminal transaction.  That has started to place, we submit, a more acute focus on the jurisdiction of this Court to control abuses of its processes and, in particular, issues concerning the nature and scope of double punishment.  For the reasons that we have advanced to this Court, the abuse is a dual abuse and, if your Honours will pardon the vernacular, presents the applicant in this case with Hobson’s choice when it comes to pleading to the charge.

Now, your Honours, assuming a power to backdate, our submission is that there is nevertheless an impermissible and unavoidable double punishment for two reasons.  It is the case, we submit, that the majority in the Court of Criminal Appeal effectively accepted that to an extent even exercising a power to backdate, even to the point at which the accused was taken into custody, which predated the date on which the offence of the alleged murder is taken to have been committed, their Honours nevertheless accepted that there was a measure of double punishment in what would follow.  Their Honours, however, took the view that that was required and permitted by the legislation.

Your Honours will find this referred to in the application book in the judgments, first of all in the reasons for judgment of Justice Gray.  If your Honours go to page 126 of the application book, I take your Honours in particular to paragraph 101 towards the bottom of the page where his Honour acknowledges that even with a backdated sentence “there still remains the possibility of some perceived double punishment”.  His Honour’s response, which appears on the last line and goes on to the top of page 127, is that this was a necessary consequence of the mandatory scheme.  Your Honours can also note at paragraph 103 on page 127, at line 27, his Honour says:

In a very real sense, the earlier sentence would be absorbed into, and form part of, the mandatory sentence –

a proposition which we, with respect, contest, and, your Honours, paragraph 105 and 106 in which his Honour again concludes – your Honours might like to go to page 128, paragraph 106:

Insofar as it may be suggested that there remained some perception of double punishment, that circumstance would not be sufficient to justify a stay of proceedings.

A like view was taken by Justice Duggan.  If your Honours go to page 111 of the application book, at paragraph 51, the last two lines:

Even if the result did involve an element of double punishment, it would be the consequence of the application of the Sentencing Act.

If I could just pause there, our respectful submission is, it is the consequence of the director prosecuting the information.  Over the page at paragraph 54 where his Honour expresses himself to like effect, namely, that this is the consequence of the mandatory scheme even if there is double punishment.  Your Honours, I said there two reasons why this is double punishment which sets up the first layer of the dual oppression.  I mention it, noting the time.  I just mention the first. 

The second is the question of whether one can backdate beyond the date of commission of the offence, but the first confronts head on the ordinary process which would arise in sentencing which, if your Honours will permit me for the sake of analysis to divide into four stages, although I accept it is never going to be quite as tight as that, the first stage is fix a sentence appropriate to each particular offence separately.  The punishment must fit the crime.  Next, identify the potential for double punishment, identifying therefore the elements of the offence that are common to each.  Next, adjust one or other or sometimes both sentences to eliminate punishment for the common elements and then determine issues of concurrency or cumulation according to the nature of the transaction or transactions having regard to the principle of totality. 

It is the third of those steps which, in our respectful submission, raises the abuse and the double punishment incurably here, that is, the adjustment step.  There can be no adjustment of the sentence for wounding with intent because it has almost been served.  There can be no adjustment to the mandatory life sentence or the mandatory non‑parol period because that is what the legislature requires and because of that, backdating does not provide a cure, which was the point made by the sentencing judge, Justice White in the Court of Criminal Appeal.  You cannot do it because there has been no adjustment to take account of the common elements between them. 

I should mention, your Honours, that we put a submission which we have maintained throughout that in the present circumstances there is not a relevant power to backdate, but we put the submission to this Court on special leave assuming against us that there is a power to backdate.  The question of whether there is a power to backdate raises two principles of statutory interpretation to which we have referred in our outline and in that respect we rely on our written arguments.  Those are our submissions, may it please the Court.

GUMMOW J:   Just before you sit down, Mr Wells.  The question of dates; when was the victim attacked?

MR WELLS:   The 24th I think I am right in saying, your Honour.

GUMMOW J:   Anyhow, he died 21 months later.

MR WELLS:   That is correct.

GUMMOW J:   Is there some statutory modification of the common law, one year rule?

MR WELLS:   Your Honour, the year and a day rule has been abolished in this State, as indeed it has been abolished pretty well around Australia, directly in the non‑code States and in a different way in the code States, that is, there has not been a direct repeal but there has been amendment of provisions which exclude the year and a day rule.

GUMMOW J:   Has that happened in South Australia?

MR WELLS:   Yes, it has, your Honour.

GUMMOW J:   How has it been done in South Australia, do you know?

MR WELLS:   Section 18 of the Criminal Law Consolidation Act, your Honour, which abolishes it.

GUMMOW J:   Thank you.

MR WELLS:   May it please the Court.

GUMMOW J:   Yes, Mr Hinton.

MR HINTON:   If the Court pleases, with respect to the first and second special leave questions, the respondent contends that they have been answered in effect by this Court ‑ ‑ ‑

GUMMOW J:   Just before you get to that, what is the director’s response to the point made at page 174 attached to footnote 10, namely, the point about the content of the notion of free choice in relation to pleas?

MR HINTON:   The director’s response is that there is a free choice here, that this case is no different to many others where an accused is confronted by a series of decisions that they have to make in their own best interests in advance of the trial.  An accused may plead guilty and not believe that they are guilty, but do so on the basis that they are advised and accept that they will not win a rule 9 application, a voir dire point, to exclude evidence in this State.  They may plead guilty on the basis that they are advised that their story, although they believe it is true and they think they are not guilty, would simply not be accepted. 

Every day difficult choices are made by accused in courts around the country where they feel the pressure of the circumstances of the system.  It is no different here.  One of the factors to be weighed here is that the minimum non‑parole period can only be reduced in three possible ways; in this case, in effect, only one possible way.  That is a factor that this young man has to take into account in exercising his choices.  The system requires people to make choices.  He has to make the choice and there is no oppression in requiring him to do so.  That is the director’s response, if the Court pleases.

GUMMOW J:   Yes.

MR HINTON:   In respect to the first and second special leave questions, contrary to the submission of my learned friend, the authority of Pearce does not stand for the proposition that concurrency is not a tool that a sentencing judge can invoke to avoid double punishment.  That is why the plurality judgment in Pearce at paragraph 43 in alluding to the fact that the two sentences there were concurrent states that prima facie the accused was doubly punished.  Not that he was necessarily doubly punished by virtue of concurrency, but prima facie.

The error that was identified by the Court in that case was that concurrency masked what the sentencing judge had effectively done and by masking what the sentencing judge had done, the Court could not determine whether or not he had made any allowance for overlapping elements.  So concurrency remains a tool that can be used by a sentencing court in dealing with overlapping elements provided in some way a sentencing judge makes clear that they have done so.  That is made clear in Johnson’s Case.  In Johnson’s Case the trial judge, rather than using concurrency, reduced one of the sentences specifically to allow for overlapping elements and then at the appropriate time used the totality principle; a second alternative available to a sentencing judge to allow for overlapping elements.

This makes clear, in my submission, a combination of Pearce and Johnson that what this Court was concerned with in Pearce was real time served.  Nothing in the way of an academic argument as to sentences being imposed that accounted for all elements, but rather what is the real time served.  The error in Pearce was a failure on the part of the sentencing judge to reveal how he arrived ultimately at his conclusion.  So in this case, if it is accepted that there is a power to backdate – and that is the third special leave question – then that allows the Supreme Court, if the accused is convicted, to order in effect total concurrence.  If you have total concurrence when it comes to real time served, you have no double punishment because the sentence that this young man is currently serving is totally subsumed into the non‑parole period for the charge of murder.

In my submission Justice Layton was right at first instance, Justice White is wrong.  He is wrong in three respects.  Firstly, his Honour holds that you must necessarily reduce one or other of the sentences, that is, to ignore the power to order concurrent in part or in whole.  Secondly, he fails to see that backdating facilitates concurrence, as it would in this case.  Thirdly, his Honour fails to see that backdating, coupled with the remarks as to penalty, will reveal that there is no double punishment.  If the Court pleases, there is no gap in this Court ‑ ‑ ‑

HAYNE J:   Just before you sit down, Mr Hinton, two points.  One, is it now plain, following the decision of the Full Court, that the director goes forward at any trial and subsequent sentence recognising that there can be backdating of the non‑parole period?

MR HINTON:   Yes, it is.

HAYNE J:   Two, on the question of choice, is the choice that confronts the applicant in at least some respects identical with the choice that confronts any person charged with murder in South Australia, namely, that the only way to avoid imposition of the mandatory minimum is to plead guilty?

MR HINTON:   The answer to that is there are three circumstances under the legislation that permit the mandatory non‑parole period to be reduced.  Two do not apply to this applicant with the consequence that the only way he can reduce his non‑parole period beneath 20 years is to plead guilty.

HAYNE J:   What are the other two methods that are not open to him?

MR HINTON:   My recollection is, one is assistance to the authorities and the second is where the conduct of the victim in some way has contributed to the offence.  Neither of those apply in this case.

HAYNE J:   Yes.

MR HINTON:   That leaves, in my submission, on the first two questions of special leave, no grant is warranted.  That leaves the question of statutory interpretation.  All three judges in the Court of Criminal Appeal reconsidered the interpretation of section 30(1) in the light of the 2007 amendments.  In so doing they approached their task consistent with authority.  They did not ignore the impact of the 2007 amendments in reconsidering the interpretation to be given.  To that extent there is nothing new that arises warranting a grant of special leave.

All three determined that the 2007 amendments did not expressly nor impliedly alter the interpretation to be given to section 30(1).  That is the section that permits backdating.  All three recognised that in backdating the legislative policy would not be contravened insofar as you would still serve 20 years.  All three considered the language permitted a general power and

that the section should continue to be construed, as it has in this State since R v Colson.  If the Court pleases, in my submission, the third special leave ground does not warrant a grant of special leave for the reasons given orally and those contained in our outline.  If the Court pleases.

GUMMOW J:   Thank you, Mr Hinton.  Yes, Mr Wells.

MR WELLS:   May it please the Court, three matters in reply.  First, we contend that this applicant stands in a fundamentally different way from any other person accused of murder under the present legislative scheme.  He stands differently because he is faced with – which is not what would happen in any other case – the prospect upon conviction of double punishment and that makes the difference and it is why it invokes the principles that we refer to in our reply outline and the cases referred to in the footnote. 

We can best express it, we think, in the way that appears in the case book page 175, paragraph 15, last sentence in which we take as an example someone who chooses to plead guilty because it might attract a discount.  Now, of course, it will attract a discount in this case if you plead guilty because the mandatory non‑parole period does not apply, but the distinction we draw is between pleading guilty to secure the discounting of a just and lawful punishment and pleading guilty to avoid unjust and oppressive double punishment and that is the distinction that exists here. 

Second, we contest the proposition that Pearce authorises the use of concurrency as a tool for taking account of common elements.  The passages in Pearce are those that appear at paragraphs 45 and following where the judgment makes the point that although it might be important for the accused to know how long, which is my learned friend’s point about real time served, that is not the point about double punishment.  One has to address what is the appropriate term of imprisonment for each offence. 

It is not, we respectfully submit, the case that Johnson’s Case says otherwise.  In Johnson their Honours were concerned to make the point that one way of dealing with a common element is not just by reducing, for example, the sentence in one, but perhaps reducing the sentence in both, but that stands differently from the issue of concurrency or cumulation.

In the submissions that I have thus put I have really taken into account the third point, which is to contest that the principle here for double punishment is what is the real time served?  Our submission is that Pearce denies that proposition.  May it please the Court.

GUMMOW J:   Thank you.  We will take short adjournment.

AT 10.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

GUMMOW J:   Mr Wells, why is your client being anonymised in this Court?  We look, for example, at page 33 where the full name is used.  We realise that at one stage he was an infant, but that is no longer so.

MR WELLS:   There is a suppression order or there was a suppression order in the South Australian courts, your Honour.

GUMMOW J:   There will not be one here.

MR WELLS:   No, and I think it has simply been translated across as a default, your Honour.  It is a publicity issue.

GUMMOW J:   Yes, what do you say about that, Mr Hinton?

MR HINTON:   There was a suppression order.  The reason being is that PNJ will be tried on the northern circuit ‑ ‑ ‑

GUMMOW J:   Where does this phrase “suppression order” come from, apart from newspapers?

MR HINTON:   The Evidence Act in this State, if the Court pleases.

GUMMOW J:   It uses that phrase, does it?

MR HINTON:   It does, yes.

GUMMOW J:   Really.  Yes, go on.

MR HINTON:   He will be tried on the northern circuit because the offending occurred in Ceduna.  The pool of jurors is rather small.  By virtue of there having been a previous trial, the director’s concern was that it may cause someone to look at Justice Mulligan’s reasons because it was trial by judge alone and they were at one stage on the internet and freely available.  So in order to prevent ‑ ‑ ‑

GUMMOW J:   The question is, if special leave were to be granted or the matter were to be referred in as a special leave application, why should this Court not require the full name of the applicant to appear in this Court’s process?  Does the director want to say anything about that?

MR HINTON:   The same reasons, if the Court pleases, so that the potential pool of jurors would not be aware that it is indeed PNJ who has made this application and then be caused to look elsewhere.  If the Court pleases.

GUMMOW J:   Yes, Mr Wells.  Anything you want to say about this?

MR WELLS:   We support that, however, your Honour.

GUMMOW J:   I am sorry?

MR WELLS:   We do support the director’s view.

GUMMOW J:   Mr Wells, the other matter I wanted to take up with you is that if we were to grant leave or to refer it in, it would seem first that there would need to be some further thought and examination of authority, not necessarily confined to Australia, with respect to the second and last sentence in paragraph 15 at page 175 as to what you say “is a clear and principled distinction”.  The existing cases referred to in footnote 10 are not squarely on that point, if I can put it that way, and that development of thought would also need to be reflected in a revised draft notice of appeal.

MR WELLS:   Yes, your Honour.

GUMMOW J:   Very well.  On that footing, we will refer the application for special leave into the Full Court and that would include in it the parties should also be expected to explain to the Full Court why it is necessary to retain the anonymisation of the applicant in this Court’s process.  There is always a possibility of a change of venue, after all, but be prepared to argue that as well.  The leave application when referred in, the parties should be ready to argue it as on a full appeal.

The Court will be taking the November sittings in Adelaide and this matter may well find a place in that Adelaide list in the November sittings.  Is there anything else, gentlemen?  Very well.  We will adjourn to reconstitute.

AT 10.15 AM THE MATTER WAS CONCLUDED