R v P, NJ (No 5) - [2008] SASC 190

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 190
Introduction

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 July 2008. The accused is charged, on an Information in this Court, with the offence of murder. This matter has a long and complicated history and is the third Rule 8 application which I have heard.
Background
On 15 August 2003, after a trial before a Judge alone in the Supreme Court, the accused was acquitted of attempted murder and convicted of wounding with intent to cause grievous bodily harm.[1] The particulars of the charges were that on 24 September 2002 at Thevenard the accused attempted to murder H, or in the alternative maliciously wounded H with intent to do grievous bodily harm. At the trial, the prosecution case was that the accused had attacked H with a knife resulting in a wound to the side of H’s head. As a result of the attack H suffered severe brain damage.
[1] R v P, NJ [2003] SASC 308.
On 29 August 2003, the trial Judge sentenced the accused to seven years imprisonment with a non-parole period of four years, to commence on 26 September 2002, being the date upon which he was taken into custody.
On 28 June 2004, 21 months after the stabbing, H died.
On 4 January 2006, an Information for murder was laid against the accused. The prosecution alleges that the stabbing caused H’s death.
The first Rule 8 application
On 5 September 2006, the accused made his first Rule 8 application for a stay of the prosecution of the Information (“the First Application”). The grounds for this application were that the prosecution of the accused for the offence of murder would offend the principles of autrefois convict and autrefois acquit; offend the principles of double jeopardy; or alternatively would be an abuse of the Court’s process.
On 29 September 2006, I heard argument on this application. At this hearing I permitted the accused to withdraw his plea of “not guilty” which had earlier been entered. I reserved my decision.
On 26 September 2006, the accused became eligible for parole with regard to the sentence imposed on him on 29 August 2003. He has since that date to the present time remained in custody, a major component being the pending hearing of the murder charge.
On 5 October 2006, I rejected the accused’s application.[2] I granted leave for the accused to pursue a review of the dismissal of his application before the Court of Criminal Appeal. On 24 November 2006, the appeal came on for hearing before the Court of Criminal Appeal. On 20 April 2007, the Court of Criminal Appeal upheld my decision to reject the application.[3]
[2] R v P, NJ [2006] SASC 309.
[3] R v P, NJ (No 2) [2007] SASC 135.
I subsequently listed the trial for hearing in Port Augusta on 9 July 2007, however it became remnant for that month and it was then listed for hearing in October 2007.
The accused sought Special Leave to appeal to the High Court of Australia against the decision of the Court of Criminal Appeal delivered on 20 April 2007. On 16 November 2007 Special Leave was refused.[4]
[4] P, NJ v The Queen [2007] HCA Trans 691.
Following the rejection of Special Leave, on 29 October 2007 Gray J listed the trial to commence in Port Augusta in March 2008.
The second Rule 8 application
On 5 February 2008 the accused filed a second Rule 8 Application seeking a permanent stay of the proceedings (“the Second Application”). This application concerned the enactment of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments it effected to the Criminal Law (Sentencing) Act 1988 (SA). These amendments resulted in the imposition of a mandatory minimum non-parole period for the offence of murder. As a consequence, the accused argued that if convicted following trial, he would be punished twice for the same conduct.
On 29 February 2008, I heard this application. On 6 March 2008, I rejected the accused’s application.[5]
[5] R v P, NJ (No 3) [2008] SASC 63.
On 11 March 2008, I gave leave to the accused to have my decision reviewed by the Court of Criminal Appeal. As arrangements had already been put in place for the trial to commence on 17 March 2008, the Court of Criminal Appeal expedited the hearing of the appeal against my decision. This hearing occurred on 14 March 2008.
The trial date was vacated, as the Court of Criminal Appeal was not able to hand down its decision prior to its commencement. On 18 April 2008 the majority of Judges on the Court of Criminal Appeal upheld my decision.[6]
[6] R v P, NJ (No 4) [2008] SASC 97.
On 5 May 2008, I again listed the Information to come on for trial in Port Augusta in July 2008.
On 15 May 2008, at a directions hearing set to discuss the readiness of the parties for trial, Mr Mancini, who appeared as counsel for the accused, made an oral submission that the trial not proceed on the dates set. I was informed that the accused was seeking to make an application to the High Court for Special Leave. The application had not as at that date been filed. Various submissions were made by Mr Mancini and also by Mr Hinton QC, counsel for the DPP. I saw no basis for the trial date to be vacated, particularly in the absence of an application for Special Leave having been filed and having regard to the fact that the accused was still in custody.
Arrangements and discussion occurred between the parties to enable the trial to proceed.
The third Rule 8 application
On 26 June 2008 this Rule 8 application was filed. This application seeks to vacate the July 2008 trial date. Following the filing of the application I gave directions as to the filing of Outlines of Argument. On Thursday 3 July 2008 the application was argued before me.
On that occasion I was informed that on 16 May 2008 an application for Special Leave had been filed in the High Court and that an application had been made for an expedited hearing of that Special Leave application. The application for expedited hearing was listed for hearing on 8 August 2008. I was informed that the date for hearing of the application for Special Leave had not been given.[7] I was also informed that the proposed appeal being the subject of the application for Special Leave to appeal to the High Court sought a stay of the proceedings in respect of the Information, on a permanent basis.
[7] However, I was advised just one hour prior to delivering these reasons that the application for Special Leave will also be heard on that date, namely 8 August 2008.
I reserved my decision on the application.
The key grounds were set out in the Rule 8 Application and they were later amplified by counsel for the accused, Mr WJN Wells QC. Mr Wells’ ultimate contention was that if this Court was to proceed with the trial on the dates fixed for hearing, this Court “…would risk … being a party to a serious injustice: by insisting that the accused be arraigned and his plea taken, the Court would be requiring the accused to decide upon a plea without being fully and finally informed as to his position”.[8]
[8] Outline of Argument, paragraph [6] Filed on 30 June 2008.
As I understood the argument put on behalf of the accused, there were two major limbs. The first limb relied on a series of contentions which ran as follows:
1The decision of the Court of Criminal Appeal handed down in April 2008[9] was wrong.
[9]    R v P, NJ (No 4) [2008] SASC 97.
2The accused has made an application for Special Leave to appeal and he has a “constitutional right to [have] access to the High Court” to have his application determined.
3If the trial was to proceed on the dates listed, being a time prior to when the High Court could determine his application, then this placed the accused in a position which was oppressive and unjust.
4This was oppressive and unjust because:
·he would be arraigned and required to enter a plea before his legal situation has not been finally determined by the High Court;
·his legal advisors would not be able to fully and finally inform him as to his legal position until the High Court had dealt with his application;
·he was in the following dilemma in deciding whether to plead guilty or not guilty.
-      if he entered a plea of not guilty and was convicted at trial, he would suffer “double punishment”, which would be oppressive and unjust;
-      the only way in which he would be able to avoid the injustice of “double punishment”, would be to enter a plea of guilty;
·in deciding as to how to plead, he was being exposed to improper pressure of the prospect of double punishment unless he pleaded guilty;
·a court will only accept a plea of guilty if it is entered in exercise of a free choice in the interests of the person entering the plea;
·if the accused pleaded guilty so as to avoid the prospect of “double punishment”, this was procuring a plea by improper pressure and would amount to a miscarriage of justice.
Thus it was argued that as a result of these circumstances, if the Court did not vacate the trial date, it would be a party to a serious injustice and a miscarriage of justice.
The second limb of the argument was that if the accused was required to be arraigned, enter a plea and then depending on the plea, proceed to trial before the hearing of his special application for leave to appeal, this would render his Special Leave to appeal as nugatory. As the relief which the accused was seeking in the High Court was a stay of the Information proceedings on a permanent basis, that relief would be rendered futile if he was required to proceed with the trial processes.
In relation to the first limb of his argument, this appears to be based on a premise that there has been no final determination of the legal rights of the accused as to whether a conviction for murder upon trial renders him liable to “double punishment”.
In my view, the starting point for this argument is unsound. The Court of Criminal Appeal has determined the legal rights of the accused on that point. The majority of the Court of Criminal Appeal rejected the argument that the accused would be exposed to double punishment if convicted for murder after trial. The decision of the Court of Criminal appeal is not contingent upon a decision of the High Court. The accused, in asserting that the decision of the Court of Criminal Appeal was wrong and that he is now exposed to “double punishment”, does not make it so. The accused cannot argue backwards and assert that pending hearing of an application for Special Leave to appeal, his client is exposed to “double punishment”. As a matter of fact and law, the accused is not presently in this situation. Therefore, in deciding whether or not to plead guilty or not guilty, he is not being threatened with a prospect of “double punishment”.
The accused is legally in no different situation from many other accused when faced with deciding how to plead, which includes taking into account the consequences of a plea having regard to the risks and potential outcome of a trial.
Similarly, in relation to his application for Special Leave to appeal, the accused, with the assistance of legal advice, will need to weigh up the prospects of success in obtaining Special Leave to appeal, as well as the chance of a successful appeal, in deciding how he will plead at trial. He has chosen to take this application and that additional factor, with its attendant potential consequences, does not thereby subject him to improper pressure or injustice. The accused is in no different situation from many other persons in the criminal justice system who need to weigh up a number of factors when choosing how to plead. This may be complicated with different choices and potential outcomes, but this does not amount to improper pressure. I therefore reject this first limb of argument as being a proper basis upon which to vacate the trial date.
However, there is still the second limb of the accused’s argument to be considered.
Following the refusal by the Court of Criminal Appeal decision to stay the proceedings, the matter was again listed for trial to commence on 21 July 2008, as previously set out.
In deciding whether this listing for trial should be vacated as sought, it is necessary to identify the precise nature of the application before me. Mr Wells emphasised that the accused’s Rule 8 application was an application to “vacate the date for trial” and it was not an application for “stay proceedings” or “stay of execution”.
In stating that it was not a “stay” application, I understood from Mr Wells’ submission, that the application of the accused was simply to have the trial date vacated, which would enable the accused to have his application for Special Leave heard and determined by the High Court. The application did not in its terms seek to prevent the listing of the trial after the determination of the application for Special Leave.
This point was further expanded by Mr Wells in his submission in which he argued:[10]
What we are seeking in the application that we are making is to preserve the matter which is before the High Court. The matter which is before the High Court, if we are successful in getting special leave and succeed in our appeal, would result in relief being granted of the kind that we first sought; namely, a stay of the information permanently, no arraignment, no trial. That was the nature of the initial application and that is what we seek to have before the High Court and seek the High Court’s order which would uphold that application.
So, if the trial goes ahead before the special leave application is heard, there will be no relief that our application in the High Court could secure. In terms that are often used, the appeal which our application seeks special leave to prosecute would be rendered nugatory. If we went to the High Court subsequent to the trial and pursued our special leave application, the High Court would say ‘Why are you here? There is nothing for us to consider. The trial has been had. The relief that you are seeking from us is relief we cannot now give to you’.
[10] Application Transcript dated 3 July 2008, page 5.
I also note that, in the course of his submissions, Mr Wells indicated that “if there were a lack of success on our application for Special Leave, the possibility of a plea rather than a trial would arise for serious consideration…”. This submission also reinforces that the focus of the Rule 8 application is on vacating the date for trial so that the accused could have the benefit of the outcome of the application for Special Leave. It is, in my view, also a corollary of the approach taken by the accused in this application, that if he was successful in the Rule 8 application and in his application for Special Leave to appeal, it would then be open for him to apply for a stay of proceedings to prevent the subsequent re‑listing of the trial.
Mr Wells submitted that the principles and criteria which have been applied by courts when considering an application to grant a stay of proceedings pending the hearing and determination of an application for Special Leave in the High Court, were not applicable in this case.[11] Although on a strict approach that may be so, nonetheless, the ground upon which the applicant seeks to vacate the date has a common factor with an application for stay, namely consideration as to whether a continuation of the trial process would render the application for Special Leave nugatory or futile.
[11] See the principles and criteria elucidated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681.
In submitting that the trial process would result in the application for Special Leave being futile, Mr Wells contended that if this Court continued with the trial date including the arraignment, the entering of a plea and any trial thereafter, it would “deprive the accused irremediably of his existing right to seek Special Leave to Appeal, pre-empting the High Court’s jurisdiction”.
In considering this argument, it is necessary to address a number of processes of trial which may be relevant.
If at the time of the hearing of the application for Special Leave the accused is arraigned and enters a plea of not guilty, this factor alone would not render an application for Special Leave to be nugatory. There would, as at that date, be proceedings on foot to which the relief sought on a proposed appeal could apply, namely the trial.
Further, if prior to the hearing of the Special Leave application the trial had commenced but had not been completed, again, the application for Special Leave would not render the relief sought as nugatory.
If prior to the hearing of the application for Special Leave the trial of the accused had been completed and the accused was found guilty of murder, then different considerations apply.

Section 11 of the Criminal Law Consolidation Act1935 (SA) (“CLCA”) provides:
Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.
Section 32 of the Criminal Law (Sentencing) Act1988 (SA) (“the Sentencing Act”) relevantly provides:
32 – Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or
…
(5) The above provisions are subject to the following qualifications:
…
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
Thus as soon as an accused is found guilty, an automatic sentence of life imprisonment is imposed, and a court is then required to set a non-parole period, which brings s 32A of the Sentencing Act into operation.
Mr Hinton QC, counsel for the DPP, submitted that even if the accused was convicted, this would not prevent the accused from pursuing an application for Special Leave; it would not be rendered futile. He correctly conceded that an application for Special Leave to appeal, and any later successful appeal to the High Court, could not include the quashing of a conviction by the High Court. He submitted that, nonetheless, s 352 (1)(c)(ii) of the CLCA would enable a successful decision from the High Court on appeal to be prayed in aid of an appeal against conviction.
Section 352 (1)(c)(ii) provides that:
(c) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—
(ii)the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.
It was submitted by Mr Hinton that, due to res judicata, this subsection would not enable the accused to argue on an appeal before the Court of Criminal Appeal against any conviction that the Court of Criminal Appeal was wrong. However, it would not prevent the accused referring to a successful appeal before the High Court which could be prayed in aid to similar effect relief before the Court of Criminal Appeal.
In my view, Mr Hinton’s argument would not overcome the alleged futility as argued by the accused. Even if the argument was correct, and I have some doubts, one major impediment is a matter of timing. Mr Hinton’s argument predicates that an appeal against conviction must be made and that both the application for Special Leave, and also an appeal to the High Court, has been successful. All of these events are required to have occurred before s 352 (1)(c)(ii) can be prayed as an aid to prevent futility.
In this case, at the point when the application for Special Leave is sought, none of these matters can be satisfied at that point. If the accused has pleaded not guilty and the trial has gone ahead, it is likely that the trial will be completed before 8 August 2008 and if the accused is convicted, all that would be left at the time of the hearing of an application for Special Leave is an appeal to the Supreme Court against conviction.[12] The subject of the proposed appeal for which Special Leave is sought is the refusal of an application to grant a permanent stay of proceedings based on alleged exposure to double punishment. The processes sought to be stayed by the High Court in the application for Special Leave will all have been completed. This was the same point made by Gaudron and Hayne JJ in Lindsay Gordon Roddan v His Honour Judge Hammond & Ors.[13] Although the circumstances in that case were different, their conclusion that “[t]he criminal proceedings have now been completed and the applicant convicted. Accordingly the only issue that now arises is whether the applicant had a fair trial in accordance with law”. This situation is applicable here.
[12] Which at the earliest would be 8 August 2008 when the application for expedited hearing of the application is listed.
[13] (1998) 12 Leg Rep SL 3.
There would be no relevant processes over which the High Court may grant the relief as sought in the application for Special Leave to appeal. It would be too late if the accused is found guilty and sentenced by that point.
In short, I am satisfied that if the trial date is not vacated, that would render the accused’s application for Special Leave futile.
In vacating the trial, I also record my disquiet about vacating the trial at this point. Bearing in mind its history, it was important that court processes should proceed expeditiously. This is the third time the matter has been listed for trial. Consideration has to be made as to the interests of witnesses; their present location; their availability; and the effect of any further delay upon their memories. There is also the effect of delay on the victim’s family and finally, and importantly, the accused still remains in custody notwithstanding the fact that his non-parole period has expired.
I therefore trust those acting on behalf of the accused will make every endeavour to have his application for Special Leave heard before the High Court as quickly as possible. The last minute applications which have been made in this Court when trial has been imminent is concerning. In this case the application for Special Leave was filed in the High Court on 16 May 2008 and the Rule 8 application was not filed until 26 June 2008 at a time when the trial was listed to commence the following month. This delay in filing the Rule 8 application is very disruptive and places unnecessary pressure on all parties, including this Court, in being required to respond to the application urgently in the interests of justice.
I order that the trial date set for hearing in the matter on 21 July 2008 be vacated.