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The Queen v Ahwan [2005] NTSC 47

PARTIES: THE QUEEN

AHWAN, Jacob

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: SCC 8606704

DELIVERED: 18 August 2005

HEARING DATES: 29 June and 29 July 2005

JUDGMENT OF: RILEY J

CATCHWORDS:

CRIMINAL LAW – SENTENCING – MURDER – LIFE IMPRISONMENT – NON-PAROLE PERIOD

Application by Director of Public Prosecutions for non-parole period of 25 years – Whether conduct “would have constituted a sexual offence against the victim” pursuant to s 19(3)(b) Sentencing (Crime of Murder) and Parole Reform Act (NT) – Interpretation of “sexual offence” – Legislation which bases future action on past events – “Sexual offence” to be interpreted in light of the law as it stands at time of the application – Penetration of the victim at the time she was deceased would not have constituted a “sexual offence” against the victim.

Sentencing (Crime of Murder) and Parole Reform Act (NT), s 19(3)(b)

Sentencing Act (NT), s 53A(3)(b)

Criminal Code (NT), ss 125B, 125C, 140(b), 192(3)

Crimes Act (Vic), s 34B

R v Leach (2004) 145 NTR 1, considered.

Craig Williamson Pty Ltd v Barrowcliff (1915) VLR 450 at 452, applied.

Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194, considered.

Geraldton Building Co Pty Ltd v May (1977) 13 ALR 17, considered.

Robertson v City of Nunawading [1973] VR 819 at 824, applied.

Re A Solicitor’s Clerk [1957] 1 WLR 1219, applied.

R v Crabbe (2004) 145 NTR 50, applied.

Commonwealth v Baume (1905) 2 CLR 405 at 414, applied.

Kingston v Keprose (1987) 11 NSWLR 404 at 423, applied.

Marshall v Watson (1972) 124 CLR 640 at 649, applied.

CONSTITUTIONAL LAW – JUDICIAL POWER

Whether s 19(3)(b) Sentencing (Crime of Murder) and Parole Reform Act (NT) incompatible with the exercise of judicial power – Commonwealth Constitution Ch III – Application is a sentencing exercise and principles governing such an exercise apply.

Sentencing (Crime of Murder) and Parole Reform Act (NT), s 19(3)(b)

Commonwealth Constitution Ch III

Bugmy v The Queen (1990) 169 CLR 525 at 536, applied.

R v Leach (2004) 145 NTR 1, applied.

R v Bernasconi (1915) 19 CLR 629, applied.

Fittock v R (2001) 11 NTLR 52 at 58, considered.

Fittock v R (2003) 197 ALR 1, considered.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, distinguished.

Fardon v Attorney- General (Queensland) (2004) 210 ALR 50, applied.

North Australian Aboriginal Legal Aid Service Inc v Bradley & Anor (2004) 206 ALR 315 at par 28 – 30, distinguished.

REPRESENTATION:

Counsel:

Applicant: R. Wild QC with C. Heske

Respondent: J. Lawrence

Solicitors:

Applicant: Office of the Director of Public Prosecutions

Respondent: North Australian Aboriginal Legal Aid Service

Judgment category classification: B

Judgment ID Number: ril0517

Number of pages: 27

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

AT DARWIN

The Queen…

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 The Queen v Ahwan

Details

AGLC: The Queen v Ahwan [2005] NTSC 047
Case: [2005] NTSC 47
Decision Date: 18 August 2005

CaseChat Overview and Summary

The respondent, Jacob Ahwan, was convicted of the murder of his wife. He was tried and convicted in 1986, but the conviction was quashed and a retrial ordered. Following the retrial, he was again convicted and sentenced to imprisonment for life on 12 February 1990. The Director of Public Prosecutions applied for an order that a non-parole period of 25 years should apply to the respondent. The primary issue was whether the respondent's conduct "would have constituted a sexual offence against the victim" pursuant to s 19(3)(b) of the Sentencing (Crime of Murder) and Parole Reform Act (NT). The court held that the respondent's conduct would not have constituted a sexual offence for the purposes of s 19(3)(b) of the Act. The application was dismissed. The court also held that the application did not offend Chapter III of the Australian Constitution.

Orders