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…

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 P, NJ (No 5)

Details

AGLC: R v P, NJ (No 5) [2008] SASC 190
Case: [2008] SASC 190
Decision Date: 9 July 2008

CaseChat Overview and Summary

P, NJ, the applicant, is appealing against a decision of the South Australian Supreme Court that rejected his application to stay the proceedings against him for the offence of murder. The applicant was convicted in 2003 of wounding with intent to cause grievous bodily harm and was sentenced to seven years imprisonment, with a non-parole period of four years. The victim subsequently died, and the applicant was charged with murder. The applicant has now applied under Rule 8 of the Supreme Court Criminal Rules 1992 (SA) to vacate the trial date, arguing that if the trial proceeds, he 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. The applicant also argues that proceeding with the trial would render his Special Leave application to appeal to the High Court as nugatory.

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.

Orders

Orders of the court

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Background

Background to the litigation

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.

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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