(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
18 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - DOUBLE JEOPARDY
Appeal against a ruling antecedent trial – application for permanent stay of proceedings refused – appellant convicted of wounding with intent to cause grievous bodily harm and acquitted of attempted murder – appellant sentenced to 7 years’ imprisonment with 4 years’ non-parole period – victim since deceased – appellant now charged with murder – charge arose out of same act giving rise to appellant’s conviction of wounding with intent to cause grievous bodily harm and acquittal for attempted murder – application to stay prosecution on basis that amendments to Criminal Law (Sentencing) Act 1988 (SA) effected by Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) exposed appellant to double punishment, such as to render prosecution for murder an abuse of process – legislative amendments introduced, inter alia, a mandatory minimum non-parole period of 20 years for murder – whether pursuant to 30(1) of the Sentencing Act, a sentence for murder can be backdated – whether, in the event of the appellant being convicted of murder, the backdating of the sentence would avoid double punishment – whether proceedings should be permanently stayed as an abuse of process.
Held: (Per Duggan, Gray and White JJ) Pursuant to s 30(1) of the Sentencing Act the trial judge would have power to backdate a sentence for murder to the commencement date of the sentence for wounding with intent to cause grievous bodily harm.
(Per Duggan and Gray JJ – dismissing the appeal) In the event of the appellant being convicted of murder, the backdating of the sentence would avoid any relevant unfairness – permanent stay of proceedings not justified in the circumstances.
(Per White J – allowing the appeal) In the event of the appellant being convicted of murder, the backdating of the sentence would not wholly avoid double punishment – imposition of double punishment oppressive to appellant – proceedings should be stayed permanently as an abuse of process.
[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
AGLC
R v P, NJ (No 4) [2008] SASC 97
Case
[2008] SASC 97
Decision Date
CaseChat Overview and Summary
The case of R v P, NJ (No 4) involves the appellant, who was previously convicted of wounding with intent to cause grievous bodily harm and acquitted of attempted murder. The victim, DH, subsequently died from the injuries inflicted by the appellant. The appellant is now charged with the murder of DH, arising from the same incident. The appellant applied for a permanent stay of the proceedings on the basis that the amendments to the Criminal Law (Sentencing) Act 1988 (SA) introduced by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) exposed him to the risk of double punishment, rendering the prosecution for murder an abuse of process. The court was required to determine whether the proposed sentence for murder could be backdated, and if so, whether this would avoid double punishment.
The appellant argued that the 2007 Amendments exposed him to double punishment, which would render the prosecution for murder an abuse of process. The court considered whether, in the event of the appellant being convicted of murder, the backdating of the sentence would avoid double punishment. The judge at first instance had held that double punishment could be avoided by a direction that the head sentence and non-parole period be taken to have commenced on the date upon which the sentence for the offence of wounding with intent to inflict grievous bodily harm was taken to have commenced. The court examined the relevant legislative provisions and the principle of double punishment, and concluded that the prospect of double punishment alone would not be sufficient to justify a stay of proceedings.
The court found that the appellant's submissions did not establish that there remained some perception of double punishment. The court held that even if the appellant were to be convicted of murder, and the sentence were to be backdated, it would not avoid double punishment. The court concluded that the appeal should be dismissed, and that the proceedings should not be permanently stayed as an abuse of process. The court did not find that the prospect of double punishment, even if it existed, would be sufficient to justify a stay of proceedings. The court also found that the legislative amendments did not allow for the backdating of the sentence in a way that would avoid double punishment.
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
DUGGAN J
GRAY J
(dissent)
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.Conclusion This appeal should be dismissed. WHITE J: The appellant is charged with the murder of DH. On the prosecution case, DH died on 28 June 2004 from the effects of a stab wound inflicted on 24 September 2002 by the appellant. The appellant was previously charged with two offences arising from his stabbing of DH: attempted murder,[53] and wounding with the intention to inflict grievous bodily harm.[54] On 14 August 2003 he was acquitted by a judge sitting without a jury of the first of those offences but convicted of the latter. The judge acquitted the appellant of the offence of attempted murder because he was not satisfied beyond reasonable doubt that the appellant had, at the time of the stabbing, an actual intention to kill DH. He was, however, satisfied beyond reasonable doubt that the appellant had stabbed DH causing him a very serious wound and that his action in stabbing had been a conscious, voluntary and deliberate act carried out with the intention of inflicting grievous bodily harm.[53] See Criminal Law Consolidation Act 1935 (SA) (CLCA) ss 11 and 270A.[54] CLCA s 21 as in force at 24 September 2002. On 29 August 2003 the appellant was sentenced to imprisonment for seven years with a non-parole period of four years. Both the sentence of imprisonment and the non-parole period were specified to commence on 26 September 2002, being the date upon which the appellant had been taken into custody. This meant that the appellant became eligible for parole on 26 September 2006. However, because of the charge of murder he has not been released. The appellant has therefore already served in custody some five and a half years of the sentence of seven years imposed for the offence of wounding with intent to do grievous bodily harm. This is the second appeal to this Court against a decision of the judge refusing to stay the prosecution as an abuse of process.[55] The abuse of process which the appellant relied upon in the previous appeal was said principally to lie in the re-litigation of issues involved in the decision of 14 August 2003 and in the oppression and vexation to the appellant in having to face a further trial when he has already served a substantial portion of the sentence imposed on 29 August 2003.[55] R v P, NJ (No 2) [2007] SASC 135; (2007) 99 SASR 1. The present application and appeal focuses on the prospect of double punishment. They have been prompted by the amendments to the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) effected by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (the 2007 Amendments) which came into operation on 1 November 2007. The appellant’s principal submission is that the 2007 Amendments expose him unavoidably to double punishment, such as to render the prosecution for murder an abuse of process. The judge at first instance held that in the event of a conviction for the offence of murder, double punishment could be avoided by a direction that the head sentence and non-parole period be taken to have commenced on 26 September 2002, being the date upon which the sentence for the offence of wounding with intent to inflict grievous bodily harm was taken to have commenced.