R v Snewin No. Sccrm-97-198 Judgment No. S6433 - [1997] SASC 6433

R v SNEWIN

Court of Criminal Appeal
Coram: Matheson, Duggan and Nyland JJ

Matheson J

The Director of Public Prosecutions ("the DPP") makes an application to this court - which he concedes is novel and unprecedented - for leave to appeal against the sentence pronounced upon the respondent by another Court of Criminal Appeal on 18 April 1997 on the ground that "the sentence is manifestly inadequate due to the respondent’s failure to give evidence in the prosecution of his former employers". The following particulars were given:

"Particulars:

The respondent pleaded guilty to six counts of causing death by dangerous driving.

During sentencing submissions, the respondent’s counsel submitted that the respondent was prepared to ‘give evidence in court’ and ‘co-operate to the fullest extent that he can in assisting the prosecution’ of his former employers, who had been charged with aiding and abetting causing death by dangerous driving.

On 31 January 1997 the sentencing judge imposed a single sentence of 5 years imprisonment with a 3 year non-parole period, and licence disqualification for five years.

The respondent appealed against this sentence upon the ground, inter alia, ‘that the learned sentencing judge had insufficient regard to the Appellant’s co-operation with investigating authorities’. [The DPP opposed the respondent’s appeal].

On 18 April 1997 the Court of Criminal Appeal [by a majority constituted by Olsson and Bleby JJ, Williams J dissenting] allowed the appeal, and substituted a sentence of 4 years with a non-parole period of 2 years.

On 18 June 1997 the respondent was called to give oral evidence at the committal proceedings of WRB Transport Pty Ltd, Wayne Bunker and Phillip Bunker, all charged with six counts of aiding, abetting, counselling or procuring cause death by dangerous driving. The respondent declined to give evidence.

The sentence imposed upon the respondent has been ‘imposed upon a wrong basis in that he was not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence’."

It is not strictly necessary to amplify what is contained in the particulars, but for the sake of completeness I will do so. On 19 June 1997 Mr Mark Griffin, solicitor for the respondent, wrote to the DPP in the following terms:

"Dear Sir

RE : BRIAN DOUGLAS SNEWIN

I refer to my attendance at the Adelaide Magistrates Court on behalf of Mr Snewin on 18 June 1997 and to our various conversations on this matter of that same day.

I confirm that I have now received a report from Dr Graham Wright concerning my client’s mental condition. I enclose a copy of Dr Wright’s report for your consideration.

As I informed you at the court house, I know Mr Snewin well and I was alarmed when I saw him in the cells. His general condition has deteriorated considerably since I saw him last. Furthermore, the report of Dr Wright sets out the matters I raised with you in our conversation at the court. I was…

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 Snewin No. Sccrm-97-198 Judgment No. S6433

Details

AGLC: R v Snewin No. Sccrm-97-198 Judgment No. S6433 [1997] SASC 6433
Case: [1997] SASC 6433
Decision Date: 21 November 1997

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions (DPP) applied for leave to appeal against a sentence imposed on Brian Douglas Snewin by the Court of Criminal Appeal. The sentence was imposed on 18 April 1997, following Snewin's guilty plea to six counts of causing death by dangerous driving. The DPP argued that the sentence was manifestly inadequate due to Snewin's failure to give evidence in the prosecution of his former employers. The primary legal issue was whether the Court of Criminal Appeal had jurisdiction to entertain an appeal from one Court of Criminal Appeal to another, and if the DPP's application should be granted.

The Court of Criminal Appeal, consisting of Matheson, Duggan, and Nyland JJ, found that the DPP's application should be dismissed. The court held that there was no provision in South Australia similar to section 5DA of the Criminal Appeal Act 1912 (NSW), which allows the Attorney General or the Director of Public Prosecutions to appeal against a sentence reduced because the person undertook to assist law enforcement authorities if they fail to fulfil the undertaking. The court also found that the DPP's construction of the word "sentence" in s352(1)(a)(iii) of the Criminal Law Consolidation Act, 1935 would lead to an unlikely and unprecedented procedure of an appeal from one Court of Criminal Appeal to another, which they found conceptually unattractive. The court emphasised that the rights of appeal provided for in the Criminal Law Consolidation Act 1935 are based on a hierarchical structure and that the Court of Criminal Appeal had no jurisdiction to exercise those rights in relation to a decision of a previous Court of Criminal Appeal in the same matter.

The Court of Criminal Appeal's decision to dismiss the DPP's application left the Crown without a remedy in the circumstances of this case. However, the court held that the Director of Public Prosecutions faced an insurmountable hurdle in arguing that there was an avenue of appeal from one Court of Criminal Appeal to another, as the two differently constituted courts were of equal jurisdiction. The court concluded that the invocation of an appellate jurisdiction to correct or amend the decision of a court of equal jurisdiction was foreign to the nature of the appellate system adopted by all jurisdictions in the country.

Orders