R v Hamnett - [2018] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAMNETT
[2018] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
22 October 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES
The appellant pleaded guilty in the District Court to two counts of attempting to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The appellant appealed his conviction and sentence.
Permission was granted to appeal the conviction on the ground that upon the admitted facts the appellant could not in law have been convicted of the charges. On the hearing of the appeal the Court allowed the appeal and ordered that the convictions be set aside and the matter remitted to the District Court for a new trial.
Held (by the Court):
1. Section 244(3) of the Criminal Law Consolidation Act 1935 does not extend to prohibiting a person from dissuading, or attempting to dissuade, another person from giving truthful evidence, whether by commission or omission.
2. A miscarriage of justice has occurred because, upon the admitted facts, the appellant could not in law have been convicted of a contravention of s 244(3).
Criminal Law Consolidation Act 1935 (SA) 242, 244, 246, 256, 352 (repealed), referred to.
Beckwith v R (1976) 135 CLR 569; R v Lavender (2005) 222 CLR 67; R v Caruso (1988) 49 SASR 465; R v Forde [1923] 2 KB 400, discussed.
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Krakouer v R (1998) 194 CLR 202; Meissner v The Queen (1995) 184 CLR 132; R v Pugh [2005] SASC 427; Berti v Police (No 2) [2014] SASC 188, considered.

R v HAMNETT
[2018] SASCFC 108
Court of Criminal Appeal: Kourakis CJ, Stanley and Lovell JJ
THE COURT:
Introduction

The appellant pleaded guilty in the District Court to two counts of attempting to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to two years, one month and two weeks’ imprisonment, reduced from a starting point of three years’ imprisonment. A non-parole period of 18 months was imposed. The sentence and the non-parole period commenced on 6 April 2017.
The appellant appealed his conviction and sentence.
Permission was granted to appeal the conviction on the ground that upon the admitted facts the appellant could not in law have been convicted of the charges. Permission to appeal against sentence was granted on the ground that it is manifestly excessive.
On the…

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 Hamnett

Details

AGLC: R v Hamnett [2018] SASCFC 108
Case: [2018] SASCFC 108
Decision Date: 22 October 2018

CaseChat Overview and Summary

In R v Hamnett, the Court of Criminal Appeal of South Australia considered an appeal against convictions recorded on a guilty plea. The appellant had been charged with preventing or dissuading, or attempting to prevent or dissuade, another person from attending judicial proceedings, contrary to s 244(3)(a) of a relevant Act. The appeal concerned the interpretation of the offence and whether the appellant's actions, evidenced by two letters, constituted a contravention of the provision.

The central legal issue before the court was whether the appellant's conduct, as evidenced by the letters, could establish an attempt to prevent or dissuade the complainant from attending court as a witness. This involved an examination of the statutory language of s 244(3) and its application to the facts. A further issue was whether a miscarriage of justice had occurred, allowing the court to set aside convictions entered upon a guilty plea.

The court reasoned that while the purpose of s 244 was to protect the integrity of judicial proceedings, the language of s 244(3) was "intractable" and did not extend to prohibiting a person from dissuading another from giving truthful evidence. The court noted that penal statutes are strictly construed and ambiguities are resolved in favour of the subject, and that the court would not extend a penal statute to cover a situation inadvertently overlooked by the legislature. Applying this to the facts, the court found that the letters did not seek to prevent or dissuade the complainant from attending court, but rather to persuade them to make a false exculpatory statement to the police. Therefore, the evidence could not prove the elements of the offence charged. The court also considered that a conviction on a guilty plea could be set aside if it appeared that the appellant did not appreciate the nature of the charge, did not intend to admit guilt, or could not in law have been convicted of the offence charged.

The Court of Criminal Appeal allowed the appeal, set aside the convictions, and ordered that the convictions be quashed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Having regard to the obvious purpose of s 244 in protecting the integrity of judicial proceedings, it is difficult to identify a basis for s 244(3) not prohibiting a person from preventing or dissuading, or attempting to prevent or dissuade, another person from giving truthful evidence. Nonetheless we consider the language of s 244 is intractable. The Parliament may have been concerned to avoid duplicating, in large part, s 242(2). Even if the Court considered that the statutory text was ambiguous, it would resolve the ambiguity in favour of the subject. The Court would not extend a penal statute to cover a particular situation because the Court considered that the legislature had inadvertently overlooked a particular situation.[9] Section 244(3) does not extend to prohibiting a person from dissuading, or attempting to dissuade, another person from giving truthful evidence, whether by commission or omission. [9] Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186, subsequently cited with approval in Krakouer v R [1998] HCA 43 at [62], (1998) 194 CLR 202 at 223. Consideration The appellant was charged with preventing or dissuading, or attempting to prevent or dissuade, another person from attending at judicial proceedings. He was not charged with attempting to prevent or dissuade another person from giving evidence. The charges allege a contravention of s 244(3)(a). They do not allege a contravention of s 244(3)(b). In our view, the evidence of the two letters cannot prove facts which establish an attempt by the appellant to prevent or dissuade the complainant from attending as a witness at judicial proceedings. The text of the letters, read separately or together, do not seek to prevent or dissuade the complainant from attending at court to give evidence in relation to the charges the appellant understood he was facing or, for that matter, the charges he actually was facing.[10] Rather the meaning of the letters is an attempt by the appellant to persuade the complainant to make a new and false statement to the police about the circumstances of the offending which is exculpatory of any offence of physical violence against the complainant. Accordingly, the appellant could not have been found guilty of the charges to which he pleaded guilty.[10] There was an issue whether the appellant believed at the time he wrote the letters that he was charged merely with assault and damage property, or whether he believed he was also charged with the two major indictable offences of threaten to kill and aggravated serious criminal trespass in a place of residence. His belief is only relevant to the sentence appeal.Should the convictions be set aside? A person may plead guilty to an offence for reasons that extend beyond a person’s belief in their guilt.[11] For the Court to allow the appeal and set aside the convictions, it must be established that a miscarriage of justice has occurred. [11] Meissner v The Queen [1995] HCA 41, (1995) 184 CLR 132. In R v Caruso[12] von Doussa J held that in certain circumstances s 352 of the CLCA confers power upon the Court of Criminal Appeal to set aside a conviction recorded on a plea of guilty.[13] Von Doussa J adopted the principle enunciated by the Court of Criminal Appeal (Eng) in R v Forde[14] that the Court of Criminal Appeal can set aside a conviction recorded on a plea of guilty where it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged.[15] [12] (1988) 49 SASR 465.[13] Section 352 of the CLCA was repealed by the Summary Procedure (Indictable Offences) Amendment Act 2017, but continues to apply to proceedings that were commenced before the commencement of the amending act. [14] [1923] 2 KB 400 at 403.[15] (1988) 49 SASR 465 at 489.