R v Morgan CA261/04

[2004] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/04

THE QUEEN

v

THOMAS WIREMU MORGAN

Hearing:         12 October 2004 Coram:  Anderson P

Baragwanath J Gendall J

Appearances: C M Clews for Appellant

D J Colbert for Crown Judgment:  18 October 2004

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]Broom at p 223 of Legal Maxims (10^th ed) states

The maxim nemo bis vexari pro una et eadem causa expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for the same offence.

Broom gives as a particular example (1824) 2 Hawkins Pleas of the Crown 524 citing earlier authority

It seems to be generally agreed… that wherever a man is attainted of felony… by judgment on a verdict… he may plead such attainder to an subsequent indictment… for the same or any other felony.

R V MORGAN CA CA261/04 [18 October 2004]

The maxim underlies the specific rules against double jeopardy expressed in ss 10(4) and 358-9 of the Crimes Act 1961, s 26(2) of the New Zealand Bill of Rights Act 1990 and article 14.7 of the International Covenant on Civil  and  Political  Rights.  It determines this appeal.

[2]        The appellant was indicted in the District Court at Hamilton on three counts of offending on 2 March 2003

a)with intent to cause grievous bodily harm the complainant wounded him;

b)assaulted the complainant and in assaulting him used a knife as a weapon;

c)without lawful authority or reasonable excuse had with him in a public place, namely Victoria Street, an offensive weapon, namely a knife.

[3]        Mr Clews applied on the morning of the trial to have counts 1 and 2 treated  as alternative. No issue arises concerning the third count.

[4]        Counsel then appearing for the Crown submitted that the two counts reflected different aspects of criminality: count 1 the wounding with intent and count 2 the use of the weapon. Judge Clark ruled that although relating to the same incident the counts reflected different aspects of criminality and allowed all three counts to go to the jury. The appellant was convicted on all counts on 3 June 2004. On count 1 he was sentenced on 1 July 2004 to three and a half years imprisonment; on count 2 to two years imprisonment; and on count 3 to one year’s imprisonment, all terms to be served concurrently.

[5]        The charges resulted from a stabbing of the complainant by the appellant  with a single blow. While there is evidence of further cuts to the complainant’s back the Judge summed up to the jury on the basis that counts 1 and 2 both related to the single stabbing. As to the first, she directed that the two elements to be established

by the Crown were a wounding, being an injury involving a breaking of the skin and intention to cause grievous bodily harm to the complainant. As to the second she directed

Now that charge relates to the same incident as the first charge but it reflects a different kind of criminality.

[6]        She directed that the Crown must prove the elements of an assault, namely an application of force to the complainant’s body and that of intent to do so and the further element of use of a weapon.

[7]The provisions relied upon were for the first count

188     Wounding with intent

(1) Every one is  liable to  imprisonment  for  a  term not  exceeding  14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.

…

and for the second count

202C   Assault with weapon

(1)        Every one is liable to imprisonment for a term not exceeding 5 years who,—

(a)In assaulting any person, uses any thing as a weapon;

…

[8]A majority of the High Court of Australia has held that

…the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… A judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account the circumstances of aggravation which would have warranted a conviction for the more serious offence.

R v De Simoni (1981) 147 CLR 383, 389-90.

[9]        While it is unnecessary for us to consider that statement of principle it appears to underlie the decisions of Crown counsel and of the Judge to treat counts 1

and 2 as independent rather than alternative charges even though ultimately concurrent sentences were imposed.

[10]      Spencer Bower, Turner and Handley The Doctrine of Res Judicata (1996) state at pp 243-4 paras 426 and 428

426 The plea of autrefois convict is the means by which the doctrine of merger in judgment is enforced in the criminal law. Once the accused has been convicted for the offence, he cannot be prosecuted again for that offence…

While the maxim nemo debet bis puniri pro uno delicto forbids a second conviction for the same crime, it does not forbid a second prosecution for the same conduct where this amounts to separate crimes.

…

428   …The  plea  will…  be  available  in  respect  of…  other  offences    “in effect the same or substantially the same as either the principal or a different crime in respect of which he could have been or has been convicted”.

R v Kendrick and Smith (1931) 23 Cr App R 1, 3 per Swift J; R v Thomas
[1950] 1 KB 26, 29 per Humphreys J.

[11]      Where the conduct  embraces two distinct episodes the plea is unavailable.   In R v Young (1914) 23 NZLR 1190 (CA) two distinct classes of statements made in a single speech, one inciting persons to resist the police and the other seditious, were held to give rise to different charges so that a conviction on one was held to be no answer to a conviction on the other.

[12]It has been said

[i]t is not the law that a person shall not be liable to be punished twice for the same act.

R v Thomas at 31; Archbold Criminal Pleading, Evidence and Practice
(2003) at p 375 para 4-123.

Thomas was the case of a person who had been convicted of assault and was later charged and convicted of murder following the victim’s death. It has been held in Australia that the Thomas dictum is not confined to such cases: see the authorities cited in R v Sessions [1998] 2 VR 305, 309 per Hayne JA.

[13]      It is unnecessary for the purpose of this appeal to explore the boundaries of the autrefois pleas or the more general double jeopardy rules which Haynes JA in that case found by no means easy to identify (p 308 line 18). In Connolly v Director of Public Prosecutions [1964] AC 1254, 1307 Lord Morris put the point as protection against “not later be[ing] charged with the same offence or with what was in effect the same offence”. The principle is that an accused is to be protected against substantial double jeopardy. Here the single wounding of the complainant with a knife blow, the subject of count 1, constituted concurrently the factual basis for count 2. The weapon the subject of count 2 was the means by which the wounding in count 1 was effected. The mental element of count 2 – intention to assault – was part of the mental element of count 1, to cause a particularly serious assault. In terms of both law and practical result count 2 is simply a less serious form of count 1. The principle is clearly infringed.

[14]      We have found Sessions an illuminating application of principle. There an offence known under the Victorian legislation as rape was committed by the accused’s insertion of his finger into the vagina of a baby. It was done with such violence as to cause part of the intestine to be extruded through the vagina opening. The Crown added to the count of rape one of recklessly causing serious injury. Following conviction the prisoner was sentenced to three years imprisonment on the count of rape and five on the count of recklessly causing serious injury which, with cumulation in accordance with Victorian practice, produced a total effective sentence of six years and a non-parole period of three and a half years. The appellant  appealed successfully against the conviction for recklessly causing serious injury on the grounds that in penetrating the victim there had been only a single act by the appellant; a distinction drawn by the sentencing Judge between the initial penetration and the continued penetration was illusory. The Court of Appeal re-sentenced the appellant on the remaining rape count to six years imprisonment with a non-parole period of 42 months.

[15]      In the present case there is no policy or other reason, such as the sentencing considerations discussed in De Simoni, that could arguably justify the retention of count 2 as an independent rather than an alternative count.

[16]      Whatever the wider significance of the nemo bis vexari maxim, we are satisfied that whether in terms of substantive law or by way of procedural protection against abuse the second count should not have been left to the jury except as an alternative to count 1.

[17]      The appeal is allowed by setting aside the conviction of  count 2  and  the  two years sentence imposed upon it. The convictions on counts 1 and 3 and their concurrent sentences will stand.

Solicitors:

Kit Clews, Hamilton for Appellant Crown Solicitor, Auckland