R v P, NJ

Case [2006] SASC 309

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v P, NJ

[2006] SASC 309

Reasons for Ruling of The Honourable Justice Layton

6 October 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR

Applicant convicted in 2003 of wounding with intent to do grievous bodily harm and acquitted of attempted murder - victim since deceased - applicant now charged with murder - whether plea in bar available - application to stay prosecution as an abuse of process - held: autrefois acquit and autrefois convict inapplicable, plea in bar not available - this is not an appropriate case for a stay - application dismissed.

R v P, NJ [2003] SASC 308; Blockburger v United States (1932) 284 US 299; Chai Gee v Martin (1905) 3 CLR 649; Li Wan Quai v Christie (1906) 3 CLR 1125; Weymess v Hopkins (1875) LR 10 QB 378; Island Maritime v Filipowski (2006) 80 ALJR 1168; Rucioch v Police (2004) 88 SASR 326; Pearce v The Queen (1998) 194 CLR 610; R v Kent-Newbold (1939) 62 CLR 398; R v Carroll (2002) 213 CLR 635; Jago v District Court of NSW (1989) 168 CLR 23, discussed.

R v P, NJ
[2006] SASC 309

Criminal

Layton J.

Introduction

  1. P, NJ (“P”) is charged on an information in the Supreme Court with the offence of Murder.  He seeks to enter a plea in bar, or in the alternative seeks a permanent stay on the basis that the prosecution constitutes an abuse of process.

    Facts

  2. P was convicted of wounding with intent to cause grievous bodily harm and acquitted of attempted murder in 2003, after a trial before Judge Alone in the Supreme Court of South Australia.[1]  The particulars of the charges were that on 24 September 2002 at Thevenard P attempted to murder [H], or in the alternative maliciously wounded [H] with intent to do grievous bodily harm.

  3. The prosecution case at trial was that P attacked [H] with a knife causing him a wound to the side of his head.  [H] suffered severe brain damage as a result of the attack.

  4. P was sentenced to seven years imprisonment in respect of the conviction for wounding with intent to do grievous bodily harm, with a non-parole period of 4 years.  At the present time he is still serving that sentence, although his non-parole period has expired.

  5. On 4 January 2006 the Director of Public Prosecutions (“DPP”) laid a new information in the Supreme Court charging P with the offence of murder.  The particulars of that charge are that P on the 24th day of September 2002 at Thevanard, murdered [H].  The prosecution case…

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R v P, NJ [2006] SASC 309
Case
[2006] SASC 309
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of R v P, NJ involved a criminal proceeding where P, NJ, the applicant, sought to bar a prosecution for murder or alternatively, to stay the proceedings on the grounds that the prosecution constituted an abuse of process. The applicant had previously been convicted in 2003 for wounding with intent to cause grievous bodily harm and acquitted of attempted murder, following an attack on [H] that resulted in severe brain damage. [H] subsequently died from the injuries sustained in the attack. The Director of Public Prosecutions had laid a new charge of murder, and the applicant argued that the prosecution was barred due to principles of autrefois acquit, autrefois convict, or double jeopardy, or alternatively that it constituted an abuse of process.

The court had to determine whether the applicant could rely on the principles of autrefois acquit or autrefois convict to bar the prosecution for murder, or if the prosecution would constitute an abuse of process. The applicant contended that the previous acquittal on the charge of attempted murder and the conviction for wounding with intent should preclude the current prosecution for murder. The court also needed to consider whether the prosecution would amount to an abuse of the court’s process, given the applicant was already serving a sentence for the earlier offence.

The court found that the principles of autrefois acquit and autrefois convict did not apply to bar the prosecution for murder. It held that the applicant's previous acquittal and conviction did not prevent a prosecution for a more serious offence, such as murder, when new evidence or circumstances, like the victim's death, arise. The court also determined that this was not an appropriate case for a stay of proceedings on the ground of abuse of process. The prosecution was not deemed to be an abuse of the court’s process, as the charge of murder was a legitimate prosecution based on the new evidence of the victim's death. The application to bar the prosecution or to stay the proceedings was thus dismissed.

In conclusion, the court ruled that the prosecution for murder would proceed, rejecting the applicant's pleas in bar and the argument of abuse of process. The principles of autrefois acquit and autrefois convict did not apply to prevent the prosecution, and the court found no abuse in the process. The applicant's application was dismissed, and the trial for murder was to proceed as scheduled.

Orders

Orders of the court

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Background

Background to the litigation

P, NJ (“P”) is charged on an information in the Supreme Court with the offence of Murder. He seeks to enter a plea in bar, or in the alternative seeks a permanent stay on the basis that the prosecution constitutes an abuse of process.Facts P was convicted of wounding with intent to cause grievous bodily harm and acquitted of attempted murder in 2003, after a trial before Judge Alone in the Supreme Court of South Australia.[1] The particulars of the charges were that on 24 September 2002 at Thevenard P attempted to murder [H], or in the alternative maliciously wounded [H] with intent to do grievous bodily harm.[1]R v P, NJ [2003] SASC 308. The prosecution case at trial was that P attacked [H] with a knife causing him a wound to the side of his head. [H] suffered severe brain damage as a result of the attack. P was sentenced to seven years imprisonment in respect of the conviction for wounding with intent to do grievous bodily harm, with a non-parole period of 4 years. At the present time he is still serving that sentence, although his non-parole period has expired. On 4 January 2006 the Director of Public Prosecutions (“DPP”) laid a new information in the Supreme Court charging P with the offence of murder. The particulars of that charge are that P on the 24th day of September 2002 at Thevanard, murdered [H]. The prosecution case is that [H] has now died of the wounds he received on 24 September 2002. Since the Criminal Law Consolidation (Abolition of Year and a Day Rule) Amendment Act 1991 came into force on 31 October 1991, it is no longer necessary for murder for the victim to have died within a year and a day of the act which causes death. The trial on the new information is listed to commence in Pt Augusta on 9 October 2006. On 5 September 2006 P, via his counsel, filed an “Application Pursuant to Rule 8” seeking the following orders:1.That the Applicant not be prosecuted for the offence of Murder, because to do so, offends the principles of autrefois convict and autrefois acquit.2.In the alternative, that the applicant not be prosecuted for the offence of Murder, because to do so offends the principles of double jeopardy.3.In the alternative, that the Applicant not be prosecuted for the offence of Murder because to do so would be an abuse of the process of this Honourable Court. The application was heard on Friday 29 September 2006 in the absence of the Applicant. At that hearing Mr Hinton appeared on behalf of the DPP, and Mr Retalic appeared on behalf of the Applicant. On Thursday 5 October 2006, in the presence of the Applicant, I delivered my ruling on the application, and indicated that I would deliver my reasons the following day. These are those reasons. Procedure The application proceeded on two bases: first, that a plea in bar was available to P; and second, that a stay of proceedings should be granted. These two grounds largely reflect paragraphs one and three in P’s application. In argument Mr Retalic conceded that the “double jeopardy ground”, namely ground two, was not arguable in itself, but that rather the principles known as ‘double jeopardy’ fell to be considered in determining the other two grounds of the application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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