The Queen v Grannigan[2004] QDC 268

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE C.F. WALL QC

Indictment No 208 of 2004

THE QUEEN

v.

AARON WILLIAM GRANNIGAN

TOWNSVILLE

DATE 12/08/2004

EXTRACT OF PROCEEDINGS

RULING

EXTRACT OF PROCEEDINGS

HIS HONOUR: On the 4th of August 2004, Aaron William Grannigan was convicted by a jury of the following two offences:

At the trial, evidence was led of a police chase along Woolcock Street, Barryman Street, Kings Road and Albany Street in the Townsville suburbs of Hyde Park and Pimlico. The vehicle being chased by police was that being driven by the accused Grannigan. It came to a stop in Albany Street and police observed Grannigan alight from the driver's seat of the vehicle.

Sentencing was adjourned to the 11th of August to allow two related summary offences to be transmitted to the District Court from the Magistrates Court pursuant to section 652 of the Criminal Code. Those two offences are the following:

Nothing turns on the fact that the indictable offence refers to Albany Street and the summary offence to Albany Road. Both are the same.

On the 11th of August 2004 the accused pleaded guilty to driving without a driver's licence. Sentencing was adjourned until today. This morning he was sentenced to imprisonment for 12 months on each of the indictable offences and to imprisonment for two months on the summary offence of driving without a driver's licence. The sentences are to be served concurrently. For each of the indictable offences he was disqualified from holding or obtaining a driver's licence for three years and for the summary offence he was disqualified from holding or obtaining a driver's licence for 12 months.

Following sentence for these offences he was arraigned on the remaining summary offence of driving whilst under the influence of liquor. To that charge he pleaded autrefois convict and also relied upon section 16 of the Criminal Code. Autrefois convict is dealt with in section 17 of the Criminal Code and that section is in the following terms:

"It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged."

Section 16 is in the following terms:

"A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission."

In my view, section 17 does not have any application to the circumstances here. So far as those circumstances are concerned, for section 17 to have application, the offence of driving under the influence would have to be open as a verdict on the dangerous operation charge, or that the dangerous operation charge was a verdict open on the driving under the influence charge, and neither is the case here.

So far as section 16 is concerned, the Crown have referred me to two decisions. The first is a decision of the Court of Criminal Appeal in R. v. Gordon, ex parte Attorney-General (1975), Qd.R. 301; and the second is a decision of the Court of Appeal in R. v. Tricklebank (1994), 1 Qd.R. 330.

In my view, the resolution of this question involves factual matters. It is difficult to arrive at a common interpretational approach to section 16 - for example, "punishable act" or "wrongful act" - which is capable of applying in all situations. A commonsense approach is required which in a practical way has regard to what in reality is involved in the two offences.

As far as the facts here are concerned, it was a circumstance of aggravation for the dangerous operation charge that on Woolcock Street, Kings Road and Albany Street, the accused, when operating the vehicle was adversely affected by an intoxicating substance.

The summary offence of driving whilst under the influence of liquor was limited to Albany Road but clearly arises out of the same driving which is the subject of the indictable offence and the same blood alcohol reading, .23 per cent, was and is relied upon for each offence.

Technically, one could proceed on the basis that the driving under the influence charge does not encompass all of the driving involved in the dangerous operation charge, being limited to Albany Road, whereas the dangerous operation offence covers two other roads as well, namely Woolcock Street and Kings Road. That however would, in my view, be an unduly technical and unfair way to approach the matter.

In R. v. Tricklebank, the two offences were different to the offences before me. They were: dangerous driving causing death with the circumstance of aggravation that the applicant was at the time adversely affected by alcohol; the summary offence was driving at the time and place of the fatal accident whilst having a blood alcohol concentration of 0.1 per cent. The exception referred to in section 16 possibly applied in that case. Putting that to one side, the members of the Court did express their views on the application of section 16 to the circumstances which existed in that case.

Mr Justice McPherson said at page 337 that:

"The addition of the aggravating circumstance did not transform the act of dangerous driving into the same act of drink driving as that for which the applicant had been punished in the magistrates court...The aggravating circumstance was, if proved, relevant as showing that the act of driving was dangerous because the applicant was adversely affected and not simply that the driver had a specified percentage of alcohol in his bloodstream."

Those comments must be read in the light of the particular offences being dealt with in that case.

I prefer the approach of Mr Justice Demack. His Honour said at page 340 (with reference to the particular offences being considered):

"In my opinion, in respect of the charge of dangerous driving, the act is the dangerous driving and the presence of alcohol in the driver's blood is to be regarded as no more than a circumstance which may be considered in determining whether the driving is dangerous."

At page 341, His Honour said:

"In my opinion, the indictment to which Tricklebank pleaded guilty involved the proof of three acts:

In the present case the summary offence here does in fact equate to the third "act" involved in Mr Justice Demack's list of "acts" involved in the indictable offence. It does in fact involve an element of being adversely affected by alcohol.

For practical purposes the acts are the same: dangerous driving whilst affected by alcohol; and driving under the influence of alcohol at the same time and place.

Mr Justice Demack preferred the approach of Hanger CJ in R. v. Gordon to the effect that section 16 must be referring to punishable acts or omissions.

It is not, in my view, necessary for me to decide which is the preferable approach, that of Hanger CJ or that of Williams J in R. v. Gordon. The respective approaches are summarised at pages 306 and 307, and 313 and 323 of the report. Being adversely affected by alcohol was not part of the dangerous driving charge in Gordon, rather it was a factor to consider in whether the driving was dangerous.

Adopting the approach of Mr Justice Demack, there are two acts involved in the indictable offence here, namely:

The second act is solely the act relied upon to establish the summary offence. That is the punishable act. And for those reasons it seems to me that section 16 clearly applies to the present circumstances.

The question remains as to whether the accused can be arraigned on the summary offence, convicted, but not have any penalty imposed; or whether a conviction of the offence by itself amounts to a "punishment" as that term is used in section 16.

Section 7 of the Criminal Code Act provides:

"When an offender is punishable under the provisions of the Code, and also under the provisions of some other statute, he may be prosecuted and convicted under the provisions either of the Code or of such other statute so that the offender is not twice punished for the same offence."

That seems to equate prosecution and conviction with punishment.

Section 45(1) of the Acts Interpretation Act provides:

"If an act or omission is an offence under each of two or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence."

Likewise, that appears to equate prosecution with punishment.

The wording of these two provisions is different notwithstanding the fact that Hanger CJ in Gordon at page 305 said that section 45 is in similar terms to section 7. Section 7 seems to me to preclude the prosecution and conviction under both provisions and seems, as I said, to equate such prosecution and conviction with being punished, that is, with punishment.

Section 45 is distinguishable, as the circumstance of aggravation by itself in relation to the indictable offence is not itself an offence against the Criminal Code. The present situation does not involve the same offence in each case, rather it involves the same act. This may not be a point of much significance though.

Section 4 of the Penalties and Sentences Act defines "conviction" as meaning a finding of guilt or the acceptance of a plea of guilty by a Court.

As a result of section 12(3) and (4) of the Penalties and Sentences Act, were the accused convicted of driving under the influence but without any penalty being imposed, the fact of the conviction would appear on his criminal history and could be used as a basis for a heavier sentence for subsequent offending.

Similar consequences result from section 79 of the Transport Operations (Road Use Management) Act where a greater punishment is to be imposed on the second or subsequent conviction for a drink-driving offence. The same also follows from section 328A(2)(b) and (3)(b) of the Code.

In these circumstances I think that a conviction itself without more - that is, without the imposition of any penalty - can amount to a punishment, perhaps not having immediate effect as such, but having in the future the clear potential to have that effect. In those circumstances I think the conviction itself for the summary offence can have effect as a punishment. That is the view taken in Queensland and in Papua New Guinea - in the brief time that I have had to have a look at the matter.

In Connolly v. Meagher (1906), St.R.Qd. 125 at 129, 130, 131 and 132, the following was said by the Judges of relevance to this question:

"Cooper CJ: The defendant in this case was charged with keeping his house open for the sale of liquor on Sunday. He had previously been convicted, under s.67 of The Licensing Act of 1885, of supplying liquor to a boy under the age of fourteen, and upon evidence which was identical with the evidence given to substantiate the present charge of keeping his house open for the sale of liquor on the Sunday.

The Justices who heard the case say definitely that it was proved beyond doubt that the hotel was strictly kept closed on the day in question, except in the matter of supplying a boy under the age of fourteen with a bottle of stout on the representation that it was for his sick mother; and that was verified by two police officers. Now the publican had already been convicted of selling the liquor to the boy, and that was the very act which constituted the other offence. I think that section 16 of The Criminal Code, which enacts that a person cannot be twice punished for the same act or omission applies to this case. It seems to me on the findings of the Justices that this was the same act, and therefore the publican could not be twice punished. It is not necessary to decide whether a conviction under all circumstances amounts to a punishment, but I am of opinion that this conviction cannot be sustained, because it involves putting the publican in a worse position, and is a punishment to him. (Cf., The Licensing Act of 1885, ss. 41, subsec. 4, 86, and 103.)

Real J: I am of the same opinion, but make some reservation. I wish to guard against any idea that the two charges made against the defendant are to be regarded as the same offence. They are not the same offence; but are two different offences constituted by one and the same act done by the defendant. So, but for the fact that the Justices in this case have expressly found that the same keeping open of the licensed house was the act constituting each of the charges made, I might have felt greater difficulty; but their finding is that 'It was proved beyond doubt that the hotel was strictly closed on the day in question for the sale of liquor except on the occasion of supplying the boy', and I think the appeal should be dismissed.

Chubb J: I agree. I think it is quite clear that two offences were committed, but that there was only one transaction, and by the operation of s. 16 of the Criminal Code the defendant, having been punished for this one transaction by being convicted of one offence, was not liable to be punished for the other offence. I prefer to reserve the question whether a conviction in all cases is to be regarded as a punishment, but in this case I think it is, because convictions against publicans for offences against The Licensing Act of 1885 carry certain consequences. If two convictions are made within twelve months an objection to a grant or removal or transfer of the license may be taken (vide ss. 41, (4), 42, and 43), and if within a like period three convictions are recorded, the Justices before whom the third conviction is heard may adjudge the license forfeited (vide s. 103). So it is clear that the defendant, as a licensed victualler, would be punished by being convicted on the second charge preferred against him."

That decision was followed by Mr Justice Minogue in the Supreme Court of the Territory of Papua and New Guinea in Gaiari-Ganereba v. Giddings (1967-68), P. & N.G.L.R. 346 at 355 to 356, where his Honour said:

"There remains the question what should this Court do when there has been a breach of s. 16; that is, should it quash the conviction or merely remove the punishment. The section itself seems to equate punishment with conviction when after stating the rule that a person cannot be twice punished for the same act or omission it goes on in an exception to allow conviction where there is subsequent death, and this notwithstanding that there has been a previous conviction. Punishment is not mentioned at all in the exception. The Judges of the Full Court of Queensland in Connolly v. Meagher preferred to reserve the question whether a conviction in all cases is to be regarded as a punishment although in the circumstances of the case before them they decided that it was. Similarly in this case I am of the opinion that conviction is a punishment because s. 9(2) of the Motor Traffic Ordinance is imperative in its terms that the court before whom a person is convicted of driving under the influence shall disqualify that person from holding and obtaining a licence for such period as the court thinks fit not being less in the case of a first offence under the section than three months. Punishment in such case is inseparable from conviction. Accordingly I propose to quash the conviction of driving under the influence and the sentence following thereon and I so order."

The same approach was taken by the Supreme Court of Papua New Guinea in Tapopwa Thomas v. The State (1979) P.N.G.L.R. 140, and for present purposes it is sufficient to set out the following passages from the judgment of Prentice CJ at pages 146 and 147:

"Is the entry of two convictions for the one act - double punishment? It is necessary now to consider whether the entry of a conviction for the unlawful carnal knowledge offence, following conviction for rape in the instant case, amounted (setting sentence aside) to double punishment under s. 16. For this court must decide whether it is sufficient to quash the second sentence, or whether it must also quash the second conviction.

This question was touched upon by Minogue J (as he then was) in Gaiari's case.

With respect, I consider Minogue J's interpretation of s. 16 forceful. The section seems to me to intend to include a conviction standing alone, as a punishment - certainly where it can clearly as a matter of English meaning, be seen to 'punish'. Without wishing to decide that every conviction must necessarily of itself amount to a punishment and potentially give rise to the application of s. 16; I consider that the second conviction in such a case as this must be considered a 'punishment' at least in so far as it becomes established on the man's criminal record. I think we have all seen instances of records of convictions which do not clearly delineate whether separate offences occurred in the one episode. One can readily envisage that a man with a record showing convictions for both rape and unlawful carnal knowledge could well find himself penalised thereby in seeking a position or otherwise."

Now, what should be done in relation to the charge? The present situation is, I think, an instance of what has been called "double jeopardy", and I consider it would be an abuse of process to proceed on the summary offence of driving under the influence. Section 16 does not say what is to be done if the section applies. Section 598 of the Code does not appear to contemplate a plea based on section 16.

Having concluded that it would be an abuse of process to proceed on the summary offence, I think the appropriate thing to do is order that there be a permanent stay of proceedings on that charge. Alternatively, I could adopt the course taken by the Justices in Connolly v. Meagher, and that is refuse to convict and dismiss the complaint. I think though that the former is the preferable course for this court to adopt.

The summary offence was transmitted to the District Court under section 652 of the Code. The accused had indicated his intention to plead guilty to the charge. Section 651(2)(d) prohibits the District Court from hearing and deciding the offence unless the accused intends to plead guilty to it. I did not "hear and decide" the offence but it may be thought that once a plea other than guilty was entered, the District Court then had no option but to send the matter back to the Magistrates Court to be heard. The matter will in any event now be sent back to the Magistrates Court (or at least under section 652(5) that Court will be notified of the result) and if it is considered beyond my power to order a stay of proceedings then I would expect that the Magistrates Court hearing the matter would make a like order or would dismiss the complaint.

The main reason for endeavouring to dispose of the matter in the way I have sought to is that the accused has been held in presentence custody for 130 days on the four offences i.e. the two indictable offences and the two summary offences.

If the driving under the influence charge is still pending, a presentence custody declaration could not be made under section 161 of the Penalties and Sentences Act. In this case it was only fair and just that such a declaration be made and I made one.

For these reasons I order that there be a permanent stay of proceedings on the summary offence of driving under the influence of liquor or a drug on the 8th August 2003 on Albany Road, Hyde Park.

END OF EXTRACT