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

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…

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

Case: [2008] HCATrans 291
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by PNJ against a decision of the Supreme Court of Queensland, Court of Appeal. The dispute concerned the admissibility of certain evidence in a criminal trial.

The central legal issue before the High Court was whether the evidence, which included a confession made by the appellant, had been obtained in contravention of the *Criminal Law Amendment Act 1997* (Qld) and, if so, whether it should have been admitted into evidence by the trial judge. The High Court also considered the application of the exclusionary rule at common law.

The High Court held that the evidence was obtained in contravention of the *Criminal Law Amendment Act 1997* (Qld). However, it found that the trial judge had not erred in admitting the evidence, as the contravention did not necessitate its exclusion under the common law exclusionary rule. The Court reasoned that the admission of the evidence, despite the contravention, was not unfair to the appellant and that the probative value of the confession outweighed any prejudice. The appeal was dismissed.

Orders