Tuesday, 1 June 2010

Double jeopardy

Double jeopardy is often used to refer to an accused being presented for trial or sentence before different courts regarding the same matter. It's also used to describe the situation where an accused is punished twice for the commission of the same act.

Black J described the concept in this context in Green v United States [1957] 60 Cal2d 482:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

In Victoria the principle is partially expressed at s 51 of the Interpretation of Legislation Act 1984, which reads,

51. Provisions as to offences under two or more laws

(1) Where an act or omission constitutes an offence under two or more laws,
the offender shall, unless the contrary intention expressly appears, be liable
to be prosecuted under either or any or all of those laws but shall not be
liable to be punished more than once for the same act or omission.

(2) In subsection (1) law means-

(a) an Act or a provision of an Act;

(b) a subordinate instrument or a provision of a subordinate instrument; or

(c) common law.

While this provides legislative authority for the prosecution to present an accused before the court charged with any number of offences, there's no further statutory clarification of what 'punished more than once for the same act or omission' means.

The notion of avoiding double punishment is bound up with related concepts of duplicity, estoppel, res judicata and autrefois acquit and convict. Like duplicity, there are questions of nature and degree preventing a one-size-fits-all rule being applied to the wide diversity of cases the principle can be applied to.

In Pearce v R (1998) 194 CLR 61 the High Court dealt with one of the easier scenarios. Unlike in Victoria, an offence of burglary exists in NSW where the aggravating feature of the offence is an assault causing grievous bodily harm (rather than a focus on the accused's intent at the time of entry, as here). Pearce was sentenced for offences of inflicting grievous bodily harm and of committing a burglary with that same feature of aggravation.

McHugh, Hayne and Callinan JJ [at 40, Gummow and Kirby JJ arriving at different conclusions but agreeing on this point]:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.


It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences [of causing grievous bodily harm] and [entering a house and causing grievous bodily harm]. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

The 'excessive subtleties and refinements' was a reference to earlier in the majority judgment to a quote of Sir John Barry's [at 39]:

"Dr Leon Radzinowicz has rightly observed that the criminal law is fundamentally 'but a social instrument wielded under the authority of the State to secure collective and individual protection against crime'. It is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime."

A case like Pearce (or like R v Sessions [1998] 2 VR 304) where one offence arises substantially out of the commission of another is fairly clear-cut. It's plain that, where a person is charged with offences of burglary and aggravated burglary in relation to the same conduct and the allegations are found proven, only one charge can proceed to sentence. But what about charges of burglary and theft arising from the same events, both of which routinely proceed to penalty? How closely (or far apart) do charges need to be to found an independent existence?

In R v Bac Ai Ngyuen Vu [2009] VSCA 231 double jeopardy was found to exist when the accused was sentenced for multiple charges of handling stolen goods when the offender bought a number of stolen computers under the same or similar circumstances. In R v Bradley [2010] VSCA 70 charges of recklessly causing injury and endangering life were considered to involve double jeopardy (a point already decided in R v Le [2009] VSCA 247. In R v Wei Tang [2007] VR 16 VR 545 the Court of Appeal considered two offences of 'using' and 'owning' a slave to create potential for double punishment, though Cummins J later said [at 47] he had difficulty with that analysis and declined to follow it: DPP (Cth) v Ho & Anor [2009] VSC 437. The Victorian approach seems to favour dismissing a 'doubled-up' charge: R v Sari [2008] VSCA 137; R v Healey [2008] VSCA 132; R v Audino [2007] VSCA 319.

On the other hand, there seems to be a firm rule that single acts which cause consequences to a number of victims legitimately attract multiple punishments. Vincent, Neave and Nettle JJA in R v WWS [2009] VSCA 125:

30 The prohibition on double punishment does not prevent the prosecution of an offender for more than one offence where an offender’s single action causes harm to more than one person. In Phillips v Carbone (No 2), the Full Court of the Supreme Court of Western Australia held that s 16 of the Criminal Code (WA), which prohibited a person from being ‘twice punished for the same act or omission’, did not apply in the situation where an offender caused bodily harm to two persons by a single act of dangerous driving. Ipp J said that s 16 was not intended to protect a person who caused multiple harm to different persons by a single act.

31 In R v Bekhazi, this Court held that an offender who drove a car while under the influence of drugs, killing one victim and recklessly endangering another, could be convicted of two offences arising out of that action. Winneke P said:

[t]he offences described by ss 22 and 318 of the Crimes Act are different, not only in their elements, but also in the acts or omissions which constitute them. Each contemplates ‘harm’ flowing to identifiable ‘victims’. In other words, they are not the same offence either in law or in fact and, accordingly, to punish the appellant for each of them does not infringe the protection afforded by s 51 [of the Interpretation of Legislation Act] merely because each offence derives from a common course of driving. So far as I am aware, it has never been doubted that, if the act of detonating a bomb kills or injures multiple victims, the accused can be charged with and punished for as many offences as there are victims. Likewise, if a course of driving a motor vehicle causes the death of one person and endangers the life of another, the fact of the death of one victim and the endangerment of the life of the other must be part of the relevant ‘acts or omissions’ constituting the separate ‘laws’ because the consequences cannot be divorced from the separate obligation owed by the accused to the separate victims. In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the ‘fundamental distinction’, referred to by Ipp J in Phillips v Carbone (No 2), above, at 190, between a single act that contravenes more than one ‘law’, and a single act that harms more than one person.

32 Vincent JA took a similar view. His Honour said:

[t]he detonation of a bomb in a shopping centre may, from the perspective of a particular perpetrator, involve a single action. However, as far as the law is concerned, the individual has committed a separate criminal act against each of his victims. Through the actor’s engagement in the one activity, he has breached what the law sensibly regards as quite distinct and identifiable obligations to the community and to each of those encompassed by the offence concerned and for which he is separately accountable. The one action may involve the commission of a number of such breaches and offences, each of which is regarded as involving a separate act. So viewed, the same conduct or act, although I would prefer to employ the term action, may attract criminal responsibility as murder, attempted murder, or one of a number of other lesser offences according to the consequences for the respective victim or potential victims.

It is not simply that the action undertaken has had a number of consequences or has affected more than one victim, although this underlying reality provides the most powerful rationale of the attribution of responsibility in respect of each victim, but rather that the criminal law represents and reflects, on behalf of the community, significant aspects of the relationships and duties which are regarded as essential and separately owed to the community and to each member. Returning to the example given above, it is not regarded as the same act to kill A as it is to kill B, although their deaths may result from the same action. Nor, in the present context, was the action which resulted in the death of Ms Hornidge to be regarded as subsuming the offence and acts of placing Ms Archdall and Mr Morland in danger of death.

33 The applicant’s action of masturbation affected each of the three young girls who were present when this action was performed. The situation is therefore similar to that arising in Phillips. If the applicant had been convicted of only one of these offences, the judge would not have been able to sentence the applicant for the effects of his action on the two other two girls.

34 The applicant’s counsel submitted that if the conviction on count 9 was upheld a man who masturbated in a hall full of children could be convicted of hundreds of separate counts of committing an indecent act in the presence of a child. The theoretical possibility that this could occur does not require the quashing of the applicant’s conviction on count 9. Such a situation is likely to be dealt with by the sensible exercise of prosecutorial discretion to limit the number of offences with which an offender is charged, where the offences arise out of a single act. Alternatively, the court may be able to exercise its power to prevent an abuse of process in such circumstances.

In NSW, where Pearce originated from, it seems that the courts apply the High Court's decision by mitigating the punishment to account for the overlap, rather than by striking out one of the offending charges.

A recent example is the Crown appeal in R v Elphick [2010] NSWCCA 112 where the NSW Court of Appeal considered the appropriate sentences for offences with common elements.

25 The Judge then articulated what he perceived as a problem in applying that authority to this case. He said:

“In the present case, the offender’s assault (unlawful violence) of the victim is an element of each offence under [the assault causing actual bodily harm provision] and [the affray provision]. Therein lies the difficulty presented to the court in this sentencing exercise. In the course of submissions the Crown had initially argued that the offence of assault occasioning actual bodily harm was merely a backup charge. If that was so, there would be no problem. The court could sentence in respect of the charge of affray and dismiss the assault occasioning actual bodily harm on the [related offences] certificate. However, s 165 of the Criminal Procedure Act makes it clear that the charge of assault occasioning actual bodily harm is not a backup offence but a related offence. That section provides that a related offence means an offence that arises from substantially the same circumstances as those from which the indictable offence has arisen. It does not possess all of the same elements of the indictable offence. Accordingly, it follows that I must pass sentence in respect of the assault occasioning actual bodily harm. If I do that and then pass to consider the penalty in respect of the charge of affray, I cannot punish the offence for the common element, that is the unlawful violence. In my view, it is that element that has resulted in my assessment of the offender’s conduct as being at the very upper end of objective seriousness, if not the worst case category (in respect of the charge of assault occasioning actual bodily harm).

If I was to do it in the reverse order, that is sentence for the elements of affray and then pass onto the assault occasioning actual bodily harm, I would be limited to having regard only to the injuries sustained by the victim, that is the actual bodily harm and ignoring the assault itself (i.e. unlawful violence) because that would have been taken into account in respect of the charge of affray. In my view, that approach would be a nonsense, and utilised simply as a device to get around the failure to elect.”

The Court of Appeal held this to be a misinterpretation of Pearce.

Allsop P, Grove and Hislop JJ [at 26]:

26 Those observations reveal a misapplication of the cited authority. The vice to be avoided is “punishing an offender twice” but this does not require ignoring elements which are common to overlapping offences.

27 In the present case it would have been apt to consider, independently, the facts and circumstances relevant to sentence for the indicted offence of affray and proceed to sentence accordingly. No inhibition on so doing is provided by the existence of the offence on the s 166 certificate.

28 The strictures in the extract from Pearce are focussed upon the avoidance of double punishment not on the structure of sentence imposition. The fact that the mechanics of dealing with the offence of assault occasioning actual bodily harm, in the absence of election, placed a limit on the term for that offence does not operate to inhibit an appropriate sentence being imposed for the offence of affray.

29 If the offence of affray is first dealt with, then when turning to deal with the offence of assault occasioning actual bodily harm, any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken.

30 In my view, the Judge’s perception that the statutory constraint which limited sentence for assault occasioning actual bodily harm to imprisonment for 2 years restrained him from imposing a greater sentence than that for the offence of affray was incorrect and it was a material error to apply that perception when pronouncing sentence.

31 In the light of that error, the grounds of appeal should be sustained.

A very different approach should be expected here. The difference could be s 26 of the Charter of Human Rights and Respoonsibilities Act 2006, but I doubt it. Where the Victorian Court of Appeal has quashed charges, it has invariably been at the invitation of prosecuting counsel. Whether they would adopt the same course in the absence of such concessions is unknown.


the sundance kid said...

I thought double jeopardy was where your husband frames you for his murder and you are convicted of the crime so if you can find him when you get out you get to kill him.

Do your research next time. All the information you need is just sitting there for you at IMDb.


Alan said...

Amercians think they invented everything.

Nemo debet lis vexari pro una et eadem causa, I think you will find.

Anonymous said...

In your article you pose the question, "what about charges of burglary and theft arising from the same events, both of which routinely proceed to penalty?" You may not remember that this was one of the first set of facts to be dealt with by our Court of Appeal in the wake of Pearce's case. In R v Henderson Justice Batt said:

"One may accept that the conduct here constituted a single criminal enterprise, but there is, in my view, a fallacy in the contention as to double punishment, in that there is a logical glide from "single criminal enterprise" to "single crime". For, as Mr Ryan demonstrated in his outline, the enterprise had two components, burglary and theft, just as there are two components in the single enterprise in which a would-be armed robber steals a getaway car with the sole object of using it in the robbery, which he then commits. A separate conviction and a separate sentence are called for with such enterprises. Here, the burglary, whilst admittedly preparatory to the theft, involved a violation of the rights of the owner or occupier of the premises separate from the violation of the rights of the owner of the goods which the theft involved. Indeed, as the President pointed out during argument, there could in a given case be different victims of the two crimes. Pearce and Sessions do not, in my view, assist the applicant. Indeed, Pearce at para.28 shows that it was proper to charge both offences here since each required proof of facts which the other did not. Unlike Sessions, this was, in my view, a case where the charging of the offences was justified, if not required, by the principle applied in R v Newman and Turnbull [1997] 1 V.R. 146, especially as it was not easy to say on the facts which was the more serious offence. The reasons why the appellant in Pearce was held to have been doubly punished for the same act were that the single act of inflicting grievous bodily harm was an element of each of the offences in question there and that the identity of the terms of imprisonment imposed for the two offences and their concurrency enabled the High Court to discern that they were imposed to punish that single act. Here, there is not as a common element in the offences an act which both the sentences imposed could be said to punish. The direction for cumulation puts that beyond argument. Mr Priest informed the court that ground 4 was modelled on Sessions, but that case is clearly distinguishable. For there, as appears from pp.313 and 315, the offender's conduct could not be divided into parts and distributed between the two offences in question. The act for which he was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2. That simply is not so here. Indeed, the burglary was complete before the theft occurred."

If I understood the implication of yuor article correctly the suggestion appears to be that Victorian courts dismiss charges which they apprehend offend against the double jeopardy principle. While this may be the case today it was not always so. In Frugniet the Court of Appeal distinguished between charges of making and using false documents though the same items were involved. In Leoni's case the Court awarded punishments for both robbery and causing injury where the two offences were linked. Justice Coldrey dealt with charges of affray and injury in R v Ly & Tat and came to very different conclusions than you cite in later cases.

Dr Manhattan said...

Thanks for your contribution, Anon.

I hadn't heard of R v Henderson [1999] 1 VR 830 before. But, as you say, Batt JA's judgement certainly seems conclusive on charges of burglary and theft.

It's my impression that the Court of Appeal's treatment of overlapping charges has evolved over time, with no watershed case that I'm aware of that changed the way double jeopardy is treated.

When I have more time I'll be putting together another post on the topic charting the way Pearce has been interpreted over time. If I may, I'll refer to the cases you've mentioned.

Trent77 said...

Is Breach Intervention Order and the conduct that caused the breach (e.g. assault) double jeopardy?

Dr Manhattan said...

I'm not sure, Trent. After reading some recent cases I'm inclined to see the charges as overlapping so significantly that double punishment would inevitably result if a penalty was imposed on both.

Perhaps this is less likely if the breach is by way of approaching a particular address and a charge of trepass under s 9(1)(e) of the Summary Offences Act 1966 was also alleged. The ingredients of those offences seem sufficiently different to found an independent existence. But in the example you have given where the breach is by way of an assault, to also impose punishment for that assault seems to be doubling-up. It'd be like imposing punishment for burglary and aggravated burglary at the same time.

The nearest thing to an authority on point I've been able to find is R v Duncan [2007] VSCA 137. The appellant was found guilty of a number of offences including breaching an intervention order and intentionally causing injury. The Court upheld punishments on both offences, mitigated to take into account some common elements. But as the breach was put on the basis of contact (where contact was specifically prohibited by the order) it seems reasonable that the two offences could be seen as having discrete ingredients.

There's an interesting post by Professor Susan Brenner over at CYB3RCRIM3 offering a US perspective on these issues. She explains the American one act-one charge rule and the legal concept of multiplicity in her discussion of a recent Illinois stalking case.

(And before The Sundance Kid posts this helpful information, Multiplicity was also a 1996 movie starring Michael Keaton and Andy MacDowell.)

Matt said...

Dr Manhatten,

The Sentencing Advisory Council released a report in June 2009 on sentencing practices for breach of an intervention order, that is interesting reading in part on this issue.

As I understand it, magistrates do impose separate sentences for breach (now "contravention" under the Family Violence Protection Act 2008 (Vic)) and if an offence is commmitted in the course of the breach. The main concern is to avoid Pearce-style double punishment. However, even in an assault-style breach, the two offences involve distinctly different conduct. For the assault, the person is punished due to the general obligation created by the criminal law that people don't assault each other. In the breach proceedings, the person is punished for failing to comply with an obligation that applies only to that individual (the terms of the intervention order).

While the SAC was careful to avoid making any statements on this issue, breach proceedings to me have always seemed similar to contempt, in that the penalty is for the wilful disregard of a court order. While I can't remember the citation for the case, the Victorian Court of Appeal has noted that intervention orders are designed to preserve the personal safety of a victim of family violence. So the penalty for the breach needs to contain a general deterrence component to ensure the functioning of the intervention order system. Whether the conduct also amounted to a breach of the general criminal law is, on that point, of limited relevance.

Dr Manhattan said...

You make a number of good points, Matt. It's been almost a year since I last looked at that SAC report and had completely forgotten about it until you mentioned it.

I had a look through the Final Report again this afternoon. People frequently are sentenced for overlapping offences of assault and breaching an intervention order by assault. (Not that accepted practice in the courts necessarily means they're getting it right. Nobody knows just how many decisions were made under invalid cross-vesting legislation before the High Court's decision in Re Wakim struck it down). But I'm not persuaded that the Court of Appeal would today allow penalties to stand on both offences.

Accepting the correctness of your argument that each of the two offences exist to prohibit different types of conduct, I would still see a penalty on both as imposing two punishments for the one act. I don't think it would be possible to argue that the offences are discrete just because they are directed at preventing different outcomes, separately viewed as undesirable by society.

If a person knowingly destroyed shared property that was the subject of a court injunction, they would commit the statutory offence of criminal damage and also (depending on the jurisdiction of the court) the common law offence of contempt. I would suggest that in these circumstances a court could not proceed to a conviction on both charges, despite the different nature of each charge.

Habeas Corpus said...

You mention R v Sessions in your main piece. It's one of the most misunderstood decisions of recent times.

Dr Manhattan said...

You're being a little cryptic, HC. Care to explain further?

Habeas Corpus said...

I had typed something longer but your %$&*ing comments box won't allow big comments.

The "one act = once crime" rule is not the law in Victoria. I would have to read Pearce v The Queen again (you have the parties names the wrong way round in para 7, btw) but I don't know if it is the law anywhere in Australia. Sessions is the main case for how double punishment should be understood in Victoria and it specifically says that one act can amount to more than one offence. El-Kotob says the same. Sessions was a case where there was not one fact or matter that could be taken into account in sentencing on one count that would not be taken into account on sentencing for the other.

There was more like this but you get the idea.

Dr Manhattan said...
This comment has been removed by the author.