On 20 March 2009 the Victorian Court of Appeal refused an appeal request against Johnstone v Matheson [2008] VSC 567.

In November 2005, Senior Constable Scott Matheson charged Peter Johnstone with offences contrary to the Road Safety Act 1986 s 49(1)(b) and (f), alleging Johnstone drove with a blood-alcohol content of 0.091%

Johnstone was found guilty of both charges.

Over objection by the prosecutor, the magistrate dismissed the s 49(1)(f) charge. Relying on expert evidence, she read back the analysis of the s 49(1)(b) charge and then used s 50(1AB) of the Act to not cancel the defendant’s licence.

The DPP appealed on behalf of Matheson; Mr Johnstone cross-appealed.

In Johnstone v Matheson [2008] VSC 567 the DPP succeeded; Mr Johnstone did not.

The Supreme Court held it is not an abuse of process to try both charges together, applying Neill v County Court of Victoria (2003) 40 MVR 265. Nor does a magistrate have discretion to determine which charge should attract punishment. The offence contrary to s 49(1)(f) is the more serious, and if punishment must be imposed on only one charge, it must be the more serious one.

It seems to me that the doctrine against double punishment cannot be used to justify a choice by a sentencing court to dismiss the most serious charge of a group of two or more duly lain, duly prosecuted and duly proven charges where a mandatory penalty is prescribed for the most serious charge. To do so would not be an appropriate means of avoiding double jeopardy or double punishment. Rather, it would inappropriately shield the offender from the penalty prescribed by law for the single most serious offence committed: Johnstone v Matheson at [11] per Cavanough J.

The Victorian practice of the prosecutor withdrawing the s 49(1)(b) charge is not always necessary to avoid double-jeopardy, but it was appropriate in Johnstone’s case.

Johnstone applied for leave to appeal.

On 20 March 2009 the Court of Appeal refused that application.

Comments

The barrister in this case, Peter Billings, tenaciously urges double-jeopardy and abuse-of-process arguments in s 49(1)(b) and (f) prosecutions.

The High Court held as far back Thompson v Byrne (1999) 169 CLR 141 at [24] it is not an abuse of process to proceed on both charges. The Victorian Court of Appeal endorsed that finding in DPP v Foster [1999] 2 VR 643 at [60].

In Neill v County Court (2003) 40 MVR 265, Mr Billings unsuccessfully argued prosecuting both charges was an abuse of process. The Supreme Court disagreed. Mr Billings also argued for his client that conviction of both offences infringed the prohibition against double-punishment (autrofois convict). Because the appeal was made before the County Court hearing concluded, the Supreme Court couldn’t decide the point. But it did agree that double-punishment would occur if the driver was convicted of both charges and the two offences were based on the same facts, and the same acts or omissions of the driver.

And in Johnstone v Matheson [2008] VSC 567 the Supreme Court held the doctrine of double-punishment did not allow a court to avoid convicting on the more serious charge.

In Johnstone the Court didn’t decide what should happen if two mandatory-penalty offences were proven (such as 49(1)(b) and (f)), but suggested at [18] there should be:

• no punishment on the lesser offence, or
• no penalty on one offence, chosen either by the court, or, arguably, the prosecutor.

I expect that means Mr Billings will continue to press the double-punishment argument for clients facing s 49(1)(b) and (f) charges, and there will be more litigation on the point!

Okay, so what is punishment?

One answer might be for us to seek a ‘mere’ finding of guilt on the lesser charge, and penalties imposed only for the more serious offence.

But, I think we should expect our opponents to make use of R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151. In that case, Eames AJA at 323 considered a finding of guilt was a punishment within the scope of the doctrine of double-punishment. Hayes JA at 311 held that s 51 of the Interpretation of Legislation Act 1984 does not require a verdict of not-guilty on a second charge founded on the same act or omission. Batt JA didn’t say anything about it, so there was no discernible ratio on that point in the Court’s judgment.

I think Eames AJA’s approach is probably the right one. Why?

Consider the current grounds for appeal by a defendant to the County Court. Under s 83 of the Magistrates’ Court Act 1989, a person may appeal any sentencing order against that person, defined in s 3 to include any order made under Part 3 of the Sentencing Act 1991. That covers all sentencing orders under s 7 of the Sentencing Act.

That doesn’t conclusively tell us if there’s a difference or not between a verdict of guilt and imposition of penalty.

But, when the Criminal Procedure Act 2009 commences, there will be no doubt. Section 3 defines conviction:

conviction, in Chapters 6 and 8, includes a finding of guilt by a court, whether or not a conviction is recorded.

Section 254 in Chapter 6 provides that a person convicted — remember, that includes findings of guilt — of an offence by the Magistrates’ Court in a criminal proceeding may appeal to the County Court.

So, I think that even if there’s doubt now, when the new provisions commence operation it will be indisputable that a mere finding of guilt will be a penalty for the purposes of the double-punishment doctrine.

Refusal of leave creates no precedent

Occasionally, some barristers try to make use of written reasons refusing leave to appeal under s 17A(2) of the Supreme Court Act 1986 (Vic) or s 35 of the Judiciary Act 1903 (Cth).

All that happens in such cases is the applicant says, “Can I please appeal?” and the appeal court says, “No.”

That is not a decision or judgment — even though the appeal court might write its reasons for refusing leave. Pedantically, the precedent value of a refusal of leave application is zip. (But, depending on what’s written, we might pay attention to what courts of appeal and the High Court say in those reasons.)

That means the binding precedent is the original appeal decision — not the refusal of leave. But, the refusal of leave isn’t an endorsement of the original decision either: Blackmore v Linton [1961] VR 374 at 380; Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 25; Sir Anthony Mason, ‘Where now?’ (1975) 49 Australian Law Journal 570 at 575.

Keep an eye out for this. The reasons for refusal might be helpful to a Court, but they have no precedent value.