R v Snewin No. Sccrm-97-198 Judgment No. S6433
[1997] SASC 6433
•21 November 1997
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 not aware that many of his concerns have actually developed into a form of paranoia as stated by Dr Wright, but this does not surprise me in the slightest.
On the basis of the information contained in the report, I submit that my client is not well enough to endure the ordeal of re-living all of these events again. Nor is he fit and well enough to endure lengthy and vigorous cross examination. I ask that you not put him in danger of serious harm to his mental and physical health by requiring him to give evidence.
I would be grateful if you would respond to my request as soon as possible.
Yours faithfully"
It is unnecessary to set out the report of Dr Wright, Senior Visiting Physician to the South Australian Mental Health Service. On 15 July 1997 the DPP wrote to Mr Griffin and said, inter alia:
"You will be aware that Mr Snewin had indicated a willingness to give evidence in this matter.
His attitude at the Magistrates Court on 18th June, 1997, was that he was no longer prepared to give evidence.
Please confirm whether that is his present attitude."
Mr Griffin’s reply to the DPP reads:
"RE : Brian Douglas Snewin
Dear Sir,
I acknowledge your letter of 15 July 1997 concerning Mr. Snewin.
I do not accept that it is either fair or accurate to say that Mr. Snewin was ‘no longer prepared to give evidence’ when he appeared in the Adelaide Magistrates’ Court on 18 June 1997. I was summoned to the Court by the Magistrate because Mr. Snewin asked for me to give him advice. Knowing this man reasonably well from my months of working with him on his own matter, I was very concerned about his well-being when I saw him in the cells that day. He informed me of his concerns about giving evidence and the risks he perceived for himself and his family. His mental health was of particular concern to me as he appeared depressed. His conversation carried within it the ominous tones of a man contemplating suicide. He said that he refused to go into detail about his suicidal ideations with the medical people at Northfield because he would immediately be transferred to G Division on a 24 hour watch. If it were not for his loyal and loving wife and children he would put an end to it all.
These were some of the matters I told you of and to which I referred cryptically in Court when asking for time to get psychiatric assistance for Mr. Snewin. I believe that my fears were well founded when you examine the report of Dr. Graham Wright dated 18 June 1997. Not only is he anxious and depressed, but he has developed a paranoid view of his situation. Hardly the ideal state to be in when being asked to give evidence against the people who figure primarily in his paranoid thoughts.
Rather than it being the case that he was ‘no longer prepared to give evidence’ I suggest that he was not well enough to give evidence.
The factors leading to this were not of his making. First, he had the anxiety associated with a manifestly excessive sentence being imposed on him at first instance and the appeal process which followed. Second, he has had the rigours of prison life to contend with. This has included the great worry associated with the financial pressures on his wife and children as a result of his absence. These financial worries encompass the mortgage arrears on the family home and the rejection of his own Worker’s Compensation claim by WorkCover on the spurious basis that he was involved in ‘serious and willful (sic) misconduct’ leading to the accident.
I also remind you that in submissions to Judge Lowrie there was evidence from Dr. Nick Ford, psychiatrist, that Mr. Snewin had suffered a Post Traumatic Stress Disorder following the collision. You are no doubt aware that a person with this Disorder is more susceptible to recurrences during subsequent stressful episodes. This seems likely to be a factor in his present presentation. His recent poor health cannot on any view be interpreted as a ploy to avoid giving evidence. He is genuinely unwell.
Mr. Snewin did sincerely offer to give evidence against his former employers at the time of resolving his own case. Since then there have been some drastic changes in his mental health. If he were in good health there would not be a problem.
The real question for the DPP is whether you delay the proceedings in the hope that Mr. Snewin will regain his health and be in a position to give evidence unburdened by mental illness.
Finally, may I mention the rather ironic situation regarding Mr. Snewin’s rehabilitation. He was accepted in a rehabilitation program for prisoners who are considered suitable to go out to schools to talk about prison and crime. The point being made to young people by Mr Snewin was that you do not have to be a ‘criminal’ to end up in prison. However, because of his involvement as a witness in this case against WRB Transport he is considered a hazard. Some of the other prisoners did not want to travel with him for that reason. In the end the prison authorities resolved the problem by dropping him out of the program. This had the effect of diminishing his prospects of getting home detention as soon as possible. His cooperation has worked to his serious disadvantage and his rehabilitation has suffered.
If you want any more information please let me know. I will seek direct instructions from the client as soon as possible."
Mr Rofe referred to the decision of the Full Court in R v J (1993) 59 SASR 145. In that case the sentencing judge was told that the respondent undertook to give evidence against the alleged co-offenders in committal and trial proceedings, and he was sentenced on the basis that this co-operation was vital to ensure that the prosecutions against the alleged co-offenders could proceed. The committal hearing involving the five alleged co-offenders was heard after the sentencing took place. The respondent declined to give evidence, and the charges against all five co-offenders were dismissed. The respondent stated that he was not able to give evidence due to the risk to his life and the life of his family. The DPP successfully applied to the Court of Criminal Appeal for leave for appeal, the appeal was allowed and both the head sentences and non parole periods were increased. At pp147-148, King CJ said:
" I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring.
The question of re-opening a sentence by reason of a failure of an offender to carry out his undertaking to give evidence against co-offenders, is a delicate one. The purpose of sentencing an offender before he is called upon to give such evidence, is to remove any incentive to implicate others falsely in order to obtain leniency for himself. If the offender gives evidence in the shadow of the fear that the prosecution may appeal, that purpose is to some extent frustrated.
On the other hand, it is most important for the integrity of the sentencing process that an offender should not be permitted to obtain leniency by reason of an undertaking which he does not carry out. To allow that to occur would provide encouragement to mislead the sentencing court by means of false undertakings.
Restraint is necessary in connection with appeals on this ground. The mere fact that the offender’s evidence has not measured up to prosecution expectations or statements which he has previously given, in all respects, would not be a sufficient basis for allowing an appeal. Where, however, the offender refuses to give evidence, or gives evidence exonerating rather than implicating the alleged co-offenders in contradiction of his undertaking or stated intention to give evidence against them the situation calls for re-examination of the sentence which has been imposed on a basis which has been falsified by the event.
It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender’s failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply 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."
There is no provision in this State like s5DA of the Criminal Appeal Act 1912 (NSW) to which Duggan J referred in the course of argument. It reads:
The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit."
In R v Walters (1994) 33 NSWLR 612, Gleeson CJ, in delivering judgment, with which Meagher JA and Sully J agreed, said at p616:
"The purpose of the section is to enable the Court of Criminal Appeal to review the sentencing process with the benefit of hindsight, and if it is minded so to do in the exercise of its discretion, to alter the sentence to take account of certain events that have occurred since sentencing and that falsify the basis on which the sentences were imposed."
Mr Rofe submitted that this power already exists in South Australia in consequence of the decision in R v J (supra), but in any event I doubt whether such a provision would assist here. It is not clear to me that it would permit a second appeal after one Court of Criminal Appeal had already given judgment.
The DPP’s application here was not lodged until 18 August 1997, and he also applies for an extension of time within which to appeal.
The DPP seeks to rely on subs(1)(a)(iii) of s352 of the Criminal Law Consolidation Act, 1935 ("the Act") which reads:
"352 (1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information -
the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law) on any ground with the leave of the Full Court;..." (my emphasis).
Mr Rofe QC contends that this application for leave relates to a first appeal by the DPP. Until now the DPP has not sought leave to appeal "against sentence passed on the conviction ...". He sought to rely on R v Caruso (1988) 49 SASR 465 where the court had determined an application for leave to appeal against sentence, and then some twelve months or so later entertained an application for leave to appeal against his convictions by the convicted person.
Mr Rofe said he was not seeking leave to appeal from the sentence imposed by the sentencing judge because that sentence no longer existed. He has rejected the stratagem - at least until now - of seeking to ask the first Court of Criminal Appeal to re-open the hearing of the appeal. It may be possible for the DPP to argue that the Court of Criminal Appeal’s earlier judgment has not been perfected because its decision has not been endorsed on the information, However, compliance with Rule 16 of the Supreme Court Criminal Appeal Rules may be all that is necessary to perfect a judgment now.
The authorities do not assist the DPP’s present application. Some of them are collected in my judgment in R v Keogh (No.2) delivered on 13 May 1997, Jt S6152, leave to appeal from which was refused by the High Court on 3 October 1997. I add a reference to the later case of R v Postiglione (1997) 145 ALR 408.
I notice that the word "sentence" is defined in s348 of the Act which is the Interpretation Clause for Part 11. It "includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with respect to the convicted person, or any sentence, or with reference to any monies to be paid by him". I acknowledge that the definition employs the word "includes", and not the word "means". Nevertheless, I am not prepared to interpret "sentence" in s352(1)(a)(iii) to include a sentence substituted by a Court of Criminal Appeal on an appeal from the sentencing judge. Although the sentence imposed by the Court of Criminal Appeal becomes the sentence the prisoner serves, it is imposed by that court and not the original sentencing court.
Mr Kourakis, counsel for the respondent, pointed out that the DPP’s construction would not solve a problem that would arise if the DPP had appealed against the sentence originally imposed on the ground that too great a discount had been given for the anticipated co-operation, and a higher sentence was then fixed by the Court of Criminal Appeal. If the co-operation did not then eventuate, the construction advanced by the DPP would not help his cause.
Mr Kourakis also pointed to a further problem that would arise in a case where the Court of Criminal Appeal increased a sentence on a DPP appeal because it was manifestly inadequate. If the DPP’s construction is right, the prisoner could then appeal because he has a separate appeal.
For all these reasons, I would dismiss this application. I simply can not believe that Parliament contemplated such an unlikely and unprecedented procedure of an appeal from one Court of Criminal Appeal to another Court of Criminal Appeal, a procedure which I find most unattractive conceptually.
Duggan J
I agree that this application should be dismissed for the reasons given by Matheson J. I wish to add only a few comments of my own.
It is regrettable that the Crown is left without a remedy in the circumstances of a case such as the present, but the Director of Public Prosecutions faces an insurmountable hurdle in arguing that there is an avenue of appeal from one Court of Criminal Appeal to another. The two differently constituted courts are of equal jurisdiction, whereas the concept of an appeal ordinarily conveys the meaning that "a person who has unsuccessfully contested the making of a decision seeks the reversal or variation of that decision from a higher court or tribunal". (Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 at 89).
The invocation of an appellate jurisdiction in order to correct or amend the decision of a court of equal jurisdiction is foreign to the nature of the appellate system adopted by all jurisdictions in this country. That this is so is evident from the joint judgment of Isaacs and Rich JJ in The Commonwealth v The Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 92. After quoting with approval the statement of Lord Westbury LC in Attorney-General v Sillem (1864) 10 HLC 704 that a right of appeal is "in effect a limitation of the jurisdiction of one court and an extension of the jurisdiction of another" their Honours continued:
"The result of these judicial pronouncements is this: that an appeal is the continuous process of passing from one tribunal to another to correct the error of the first. At one end of the process is the civil right of the suitor to make the appeal, and there is a corresponding obligation of the opposing litigant to abide by the result, and further there is by necessary connotation the duty of the first tribunal to conform to the opinion of the second tribunal. All that depends on the appropriate law of the locality of the first tribunal. At the other end of the process stands the appellate tribunal, dependent, for its powers and authority to entertain and pronounce upon the appeal, upon the appropriate law of the locality. The respective appropriate laws may emanate from the same authority and from different authorities. But it is clear from Lord Westbury’s words that a right of appeal from any Court is a limitation of that Court’s jurisdiction. It lessens or may destroy the obligatory force of its orders; it delays or prevents execution of its decrees. It necessarily follows that the jurisdiction of a Court to decide and enforce finally and free from appeal is a larger jurisdiction that the jurisdiction to decide and enforce subject to an appeal."
It is plain that the rights of appeal provided for in the Criminal Law Consolidation Act 1935 are based on an hierarchical structure of the type referred to in the above passage and it must follow that this court has no jurisdiction to exercise those rights in relation to a decision of a previous Court of Criminal Appeal in the same matter. The Director of Public Prosecutions’ argument that the Crown has not previously exercised its right to apply for leave to appeal in this matter is not to the point. The ultimate aim of the application is to set aside the sentence substituted by the previous Court of Criminal Appeal.
Nyland J
I agree that this appeal should be dismissed for the reasons expressed by Matheson J.
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