Late last year Dr Manhattan wrote a post on de facto binding judgments.

The NSW Court of Criminal Appeal last week considered the effect of de facto binding judgments, and not following its own previous decisions when deciding a parity appeal in Jimmy v The Queen [2010] NSWCCA 60.

Parity is the principle in sentencing that offenders should be punished as similarly as possible as their circumstances and culpability allow.

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. Lowe v The Queen (1984) 154 CLR 606 at 609.

The question was if a man charged with money laundering that involved two other men who he didn’t know, and didn’t know were also involved in the same scheme of money laundering, was entitled the benefit of the parity when he was sentenced.

The Court conducted a wide-ranging review of appellate cases from across the country, and concluded that ‘co-offenders’ could include participants in a common criminal enterprise, even if the participants weren’t aware of that commonality!

One concern for the Court was the effect of two previous Court of Appeal decisions: R v Howard (1992) 29 NSWLR 242 and R v Kerr [2003] NSWCCA 234.

Campbell JA said at [88]:

R v Howard is authority for the proposition that people who participate in a common criminal enterprise, but are charged with different offences concerning that enterprise, cannot have their sentences compared in a way that seeks to undo or correct for any anomaly that there might appear to be as a consequence of the different charges that the people faced.

At [116] he said:

Kerr supports the application of the “parity principle” as a basis for reduction of a sentence if it is disproportionate to the sentence imposed on a person with whom the applicant has been engaged in a common criminal enterprise, but who has been charged with contravention of different provisions of the criminal law, and in that sense has not committed the same crime as the applicant.

The Court of Appeal here was faced with two of its own conflicting decisions, and a general rule that it should be cautious to depart from its own decisions, as well as the concept that judgments of interstate courts of appeal can be de facto binding on it!

The phrase ‘de facto binding‘ comes from Alastair MacAdam and John Pyke in their book Judicial reasoning and the doctrine of precedent in Australia, especially around [7.1] – [7.3]. They described it as:

[A]s a general guidence the concept covers decisions which (though not strictly binding) should be followed by another court unless there are good reasons for not doing so. The concept is more than judicial comity, that is something more than the respect judges give to decisions of other courts and judges.

I haven’t seen the phrase yet in any judgments, though the concept certainly does exist and is applied.

Here in Victoria, our own Supreme Court considered that it ought to consider itself bound by judgments of interstate Courts of Appeal.

On the other hand, though not binding upon this Court, the decision in Kodak’s Case is of high persuasive authority. For the past 40 years it has remained the law in New South Wales, and, as I have noted, it was followed and applied by this Court in Green v Windman; Scottish Union and National Insurance Co Ltd, Third Party, [1964] VR 297.

In circumstances where there is absence of any binding authority, there are sound reasons for seeking uniformity of the common law throughout the Commonwealth of Australia by following a decision of an appellate court of another State unless it is manifestly wrong: Body Corporate Strata Plan No 4303 v Albion Insurance Co Ltd 1982 VR 699 at 705 per Kaye J.

Albion Insurance is still good law, was applied most recently by Kaye J (!) in British American Tobacco v Gordon (No 3) [2009] VSC 619.

Similar reasoning applies for State courts exercising federal jurisdiction: R v Parsons [1983] 2 VR 499 at 506.

The High Court held in Nguyen v Nguyen that Courts of Appeal aren’t strictly bound by their own judgements, but should be reluctant to depart from them. Similarly, the High Court isn’t strictly bound by its own decisions, but is cautious before jettisoning accepted precedent and the certainty that comes with it.

The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself….The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here…It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions…There is no reason to think that the practice in Tasmania is any different, but in The Transport Trading and Agency Co of WA Ltd v Smith (1906) 8 WAR 33 there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, “Stare Decisis in Intermediate Appellate Courts” (1978) 52 Australian Law Journal 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong…

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law…: Nguyen v Nguyen (1990) 169 CLR 245 at 269 (citations omitted).

The principle applies even more strongly when courts consider national uniform legislation: ASIC v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 497. That case was applied by the High Court just a few years ago when it said:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel’s submission that he was obliged not to do so: Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89 at [135].

The High Court recently took the opportunity to re-affirm Farah, and gave the NSW Court of Appeal a bit of a nudge to remind it about the de facto binding principle when it said:

[50] It was said by the New South Wales Court of Appeal in Gett v Tabet that Farah Constructions “expanded” the principle applied to the construction of national legislation and explained in Australian Securities Commission v Marlborough Gold Mines Ltd. But that is not correct. The principle has been recognised in relation to decisions on the common law for a long time in numerous cases before the Farah Constructions case. It was also recognised in Blow J’s judgment in this very case. The principle simply reflects, for the operation of the common law of Australia within Australia, the approach which this Court took before 1986 in relation to English Court of Appeal and House of Lords decisions, as stated in Wright v Wright.

[51] In contrast, the Full Court majority did not say whether it thought the decision of the New South Wales Court of Appeal in Cole’s case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the New South Wales Court of Appeal’s approach, if the Full Court majority regarded the present case as “exceptional”. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that Blow J had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New South Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New South Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants: CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390 at [50] – [51].

In light of that comment, I can imagine why the NSW Court of Criminal Appeal was keen to explain why it thought that Kerr wasn’t good law and ultimately conclude that it should follow Howard.

In the end, the Court concluded at [203]:

There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them…
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy…
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low…
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant…

Jimmy’s sentencing appeal was refused.