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Wednesday, 14 October 2009

Lumping to avoid double jeopardy

A very useful judgment for defence advocates was handed down by Appeal Justices Neave, Lasry and Redlich last week in R v Bac Al Nguyen Vu.

It's a common practice in the summary jurisdiction for the prosecution to agree to amend charges on a plea of guilty and reduce the overall number of counts an accused faces. (In some quarters it's referred to as lumping on a plea). Now there's authority for the proposition that it may produce a double jeopardy outcome if they fail to do so.

In Vu, the accused faced the County Court on charges of handling stolen goods. He had received a number of stolen laptop computers at the same time, then resold them individually. Vu entered pleas of guilty to all counts, and was awarded partially cumulative periods of imprisonment.

On appeal, Vu argued manifest excess. Neave JA decided it was unnecessary to decide that question as the record disclosed double punishment:

24 In this case I consider that the individual sentences and the orders made under which one month of each of the sentences imposed on the handling counts was cumulated on each other and on count 29 amounted to double punishment, because they arose out of the applicant’s single act of purchasing the computers from Mr Quang. Accordingly it is necessary to re-sentence the applicant.


Traditionally it would have been considered that each distinct actus reus involved in the on-selling of the goods to different buyers would sufficiently differentiate the charges. It's possible (but not certain) that had the charges been put on the basis of disposal rather than handling their conclusion would have been different. The Court of Appeal did not address this point.

Making the periods of imprisonment concurrent wouldn't have cured the defect: R v Sari [2008] VSCA 137, quoting McHugh, Hayne and Callinan JJ in Pearce v R (1998) 194 CLR 610. Impermissible double punishment may occur even where the effective penalty is not affected.

This case probably won't change what happens in practice much, though it may give the prosecutor some incentive to agree to lump charges. It probably won't lead to a reduction in the number of charges laid, though. At the other end of the spectrum, if charges are drafted which contain more than one offence they may be considered duplicitous (and unless then particularised, invalid).

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