SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v P, NJ (No 5)
[2008] SASC 190
Reasons for Ruling of The Honourable Justice Layton
9 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GENERALLY
Applicant convicted in 2003 of wounding with intent to cause grievous bodily harm and acquitted of attempted murder – Applicant sentenced to 7 years, with 4 years non-parole – Victim since deceased – Applicant now charged on Information with murder – Applicant sought to stay Information proceedings on the grounds of alleged exposure to double punishment – This argument rejected by the Court of Criminal Appeal – Applicant filed an application for Special Leave to appeal to the High Court in relation to the decision of the Court of Criminal Appeal – Under Rule 8 Applicant now seeks to vacate the trial date because a Special Leave application is pending.
Issues: Whether if trial proceeds on the dates listed the Applicant will be placed in an oppressive and unjust position, as he would be required to enter into a plea before his application for Special Leave is determined by the High Court – Whether proceeding with the trial would render the Applicant’s Special Leave application to appeal to the High Court as nugatory.
Held: The Court of Criminal Appeal has determined the legal rights of the Applicant on the issue of double punishment and, in deciding on his plea, the Applicant is not threatened with a prospect of double punishment pending appeal to the High Court – The trial dates should not be vacated on that basis – However, if the trial dates are not vacated, and the Applicant pleads not guilty and is convicted before the application for Special Leave is heard and determined, then his application for Special Leave would be rendered futile – Section 352(1)(c)(ii) of the Criminal Law Consolidation Act 1935, in such a situation, cannot prevent futility – Application to vacate trial dates granted.
Supreme Court Criminal Rules 1992 (SA) Rule 8; Criminal Law Consolidation Act 1935 (SA) ss 11, 352(1)(c)(ii); Criminal Law (Sentencing) Act 1988 (SA) ss 32, 32A, referred to.
Lindsay Gordon Roddan v His Honour Judge Hammond (1998) 12 Leg SL 3, applied.
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; R v P, NJ [2003] SASC 308; R v P, NJ [2006] SASC 309; R v P, NJ (No 2) [2007] SASC 135; P, NJ v The Queen [2007] HCA Trans 691; R v P, NJ (No 3) [2008] SASC 63; R v P, NJ (No 4) [2008] SASC 97, considered.
R v P, NJ (No 5)
[2008] SASC 190Introduction
The matter before me is an application filed by P, NJ (“the accused”) pursuant to Rule 8 of the Supreme Court Criminal Rules 1992 (SA) in which he seeks to vacate the trial date presently set for hearing to commence on 21…
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- R v P, NJ (No 5) [2008] SASC 190
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- [2008] SASC 190
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CaseChat Overview and Summary
The legal issues before the court were whether proceeding with the trial would place the applicant in an oppressive and unjust position and whether proceeding with the trial would render the applicant’s Special Leave application to appeal to the High Court as nugatory. The court considered that the Court of Criminal Appeal had determined the legal rights of the applicant on the issue of double punishment and that the applicant was not threatened with a prospect of double punishment pending appeal to the High Court. However, the court also found that if the trial dates were not vacated, and the applicant pleads not guilty and is convicted before the application for Special Leave is heard and determined, then his application for Special Leave would be rendered futile. The court concluded that Section 352(1)(c)(ii) of the Criminal Law Consolidation Act 1935 could not prevent futility in such a situation.
The court granted the application to vacate the trial dates. The court held that the trial dates should not be vacated on the basis that the applicant is not threatened with a prospect of double punishment pending appeal to the High Court. However, if the trial dates are not vacated, and the applicant pleads not guilty and is convicted before the application for Special Leave is heard and determined, then his application for Special Leave would be rendered futile. The court found that Section 352(1)(c)(ii) of the Criminal Law Consolidation Act 1935 could not prevent futility in such a situation. The court therefore granted the application to vacate the trial dates.
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