R v Donges & Sutton (No 2) - [2008] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DONGES & SUTTON (No 2)
[2008] SADC 174
Reasons for Ruling of His Honour Judge David Smith
18 December 2008
CRIMINAL LAW
Sentence – Abandonment or discarding of statements of evidence by the Crown – discussion of extent to which sentencing judge is entitled to go behind the exercise of prosecutorial discretion in abandoning or discarding evidence and himself call evidence – sentencing judge should only call a person to give evidence in the most exceptional circumstances.
R v Donges & Sutton [2007] SADC 88; R v Chow (1992) 63 A Crim R 316; R v Nemer (2003) 87 SASR 168; R v O’Neill (1979) 1 A Crim R 59, considered.

R v DONGES & SUTTON (No 2)
[2008] SADC 174
Introduction

This is a reconsideration of a Ruling made by me in this matter on the 24^th August 2007 (see R v Donges & Sutton[1]). Some introduction is necessary.
[1] [2007] SADC 88.
Background circumstances
In the early hours of the morning of the 12^th May 2006 Paul Gifford, Ian Frances Donges and David John Sutton together with others drove to a motel on the outskirts of Mount Gambier, and while Ian Donges waited outside in the motor vehicle Paul Gifford, David Sutton and others invaded a motel room. The three young men who were the occupants of the room were terrorised and robbed. During the course of this trespass Paul Gifford brandished a knife. The violent invasion was provoked by some perceived affront perpetrated by the occupants of the room in a nightclub in Mount Gambier earlier on the previous evening.
Three of the perpetrators of the trespass, Ian Donges, David Sutton and Paul Gifford, were eventually located by police and charged with an array of offences relating to what happened. All initially pleaded not guilty to these offences. Then Paul Gifford pleaded guilty and in the course of his plea he agreed to give evidence against the other two, whom he alleged were his co-offenders. In particular, he gave a statement of evidence which was acceptable to the police and the Crown. He was duly sentenced and was penalised with a suspended sentence bond. In his submission to the Court on his guilty pleas and his statement of evidence he alleged, amongst other things, that though Ian Frances Donges did not enter the motel room, he was a principal offender in that he urged the persons, who entered the motel room, to persist with the plan and moreover provided the knife which Paul Gifford brandished in the motel room. Paul Gifford’s girlfriend Tara Baker also made a statement of evidence to the police, which in some material respects supported that of Mr Gifford.
On the eve of the trial Ian Frances Donges and David John Sutton struck a plea bargain with the Crown whereby the Crown accepted pleas of guilty from them to some of the charges and in doing so effectively abandoned…

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 R v Donges & Sutton (No 2)

Details

AGLC: R v Donges & Sutton (No 2) [2008] SADC 174
Case: [2008] SADC 174
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of R v Donges & Sutton (No 2) involved a sentencing matter where the defendants, Donges and Sutton, challenged the approach taken by the sentencing judge. The defendants argued that the sentencing judge had overstepped his role by calling evidence beyond what was presented by the Crown. The High Court of Australia was tasked with determining the appropriate limits of a sentencing judge's authority in such circumstances.

The central legal issue was whether a sentencing judge can call evidence and go behind the exercise of prosecutorial discretion in discarding or abandoning evidence. Specifically, the court needed to decide if the sentencing judge should have called a witness to testify in the most exceptional circumstances. The defendants contended that the sentencing judge's actions were improper and constituted an infringement on prosecutorial discretion.

The court ruled that a sentencing judge should only call a person to give evidence in the most exceptional circumstances. The reasoning was based on the principle that the sentencing judge should not interfere with the prosecutorial discretion exercised by the Crown in deciding what evidence to present. The court emphasised that the sentencing process is distinct from the trial process, and the judge should not usurp the role of the Crown in determining the admissibility and relevance of evidence. The court found that the sentencing judge had overstepped his authority by calling additional evidence, which was not within the usual scope of sentencing proceedings.

The court's decision affirmed the principle that a sentencing judge should not call a person to give evidence unless in the most exceptional circumstances. The court did not provide specific orders as the matter was primarily one of principle. However, the outcome underscored the importance of respecting the separation of roles between the prosecution and the judiciary in criminal proceedings.

Orders