Supreme Court Act 1935 (WA), s 58(1)(a), s 59(1)

Question of indeterminate sentence remitted to District Court

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McGarry v The Queen [1999] WASCA 276

Narrier v The Queen [2000] WASCA 86

R v Catts (1996) 85 A Crim R 171

R v Clinch (1994) 72 A Crim R 301

R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999

R v Gooch (1989) 43 A Crim R 382

R v Lowndes (1997) 95 A Crim R 516

R v Mackay, unreported; CCA SCt of WA; Library No 970689; 10 December 1997

R v Moffat [1998] 2 VR 229

Siganto v The Queen (No 2) [1999] NTCCA 52; (1999) 106 A Crim R 30

1 JUDGMENT OF THE COURT: The issue for decision in this matter was whether, after a successful appeal against sentence, the Court of Criminal Appeal has the power to remit a matter to the District Court so that a convicted person may be re-sentenced.

2 On 19 October 1998, this Court granted the applicant leave to appeal against a sentence of indefinite imprisonment, but dismissed his appeal. On 6 August 1999, the High Court set aside the indefinite sentence which had been imposed by the District Court upon the applicant and remitted the matter to the Court of Criminal Appeal for the necessary orders to be made in accordance with the judgment of the High Court.

3 In their reasons for judgment published on 2 September 1997 ((1999) [1999] HCA 43; 73 ALJR 1319), Gaudron and Hayne JJ held that this Court, having found that the pre-sentence and psychological reports relied upon by the sentencing Judge were prepared in some haste, with the further consequence that the psychological assessment which was carried out was not comprehensive, should have allowed the applicant's appeal to the extent that it was concerned with the imposition of an indefinite sentence. Their Honours indicated that, in remitting the matter back to the Court of Criminal Appeal, they were not to be taken as expressing any view as to whether this Court could, or should, deal with the matter, or could, or should, remit it to a single Judge.

4 When the matter was previously before this Court, having regard to the nature of the reports before the sentencing Judge, it had commissioned, without objection, further psychological and psychiatric assessments in respect of the applicant. The reports so commissioned were provided both to the applicant and to the Crown, with an invitation for further written submissions. Written submissions were subsequently received by the Court and exchanged between the parties, but no further oral hearing was either sought or took place. Kirby J indicated that it was not permissible to compress the appellate procedures as had occurred in this case.

5 When the matter came back before this Court on 7 June 2000, senior counsel for the applicant requested that it be remitted to the learned sentencing Judge for a rehearing of the plea in mitigation concerning the possibility of a term of indefinite imprisonment. He indicated that the applicant would be seeking on his re-sentencing to make a detailed plea, involving submissions as to why an indefinite sentence ought not to be ordered, and would be calling expert witnesses in relation to whether or not the preconditions to the exercise of the power contained in s 98(2) of the Sentencing Act 1995 (WA) could be established, and, in particular, whether the applicant would be a danger to society, or a part of it, when he would otherwise be released from custody. Counsel further submitted that, the learned sentencing Judge having presided over the trial of the applicant, and therefore being familiar with, and appraised of, the relevant factual issues and considerations, he was in an excellent position to hear the submissions and to pass judgment. He also suggested that the expected length of the proceedings made it more conducive to the efficient administration of criminal justice for the proceedings to be heard in the District Court, particularly by reason of the fact that further reports may need to be commissioned. Finally, it was submitted that to hear the proceedings in this Court would deprive the applicant of his right to appeal to this Court as an intermediate appellate court.

6 Senior counsel for the Director of Public Prosecutions argued that this Court did not have the power to make such an order. He submitted that s 689(3) of the Criminal Code sets out the primary powers of this Court on an appeal against sentence. It was recognised, however, that s 697 of the Code confers supplemental powers and that, pursuant to that section, the Court of Criminal Appeal may "... if they think it necessary or expedient to the interests of justice ... exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court ...".

7 Section 59 of the Supreme Court Act confers upon the Full Court wide powers to order new trials which may be ordered as to part only of any matter in controversy. Order 63 r 12 of the Rules of the Supreme Court gives effect to this power, and it provides for the Full Court, when granting a new trial, to give all necessary directions for further proceedings in the cause. Counsel for the applicant also relied upon s 58(1)(a) of the Supreme Court Act, which provides:

"Subject as otherwise provided in this Act and to the Rules of Court, the Full Court shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine -

(a) applications for a new trial or rehearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found, given or made in any cause or matter tried or heard by a judge or before a judge and jury ...."

The term "cause" is defined in s 4 of the Act to include: "any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding by the Crown".

8 We were referred to the decision of the High Court in Pantorno v R [1989] HCA 18; (1989) 84 ALR 390, in which that court, having quashed a sentence of the County Court of Victoria, remanded the appellant in custody to be sentenced afresh by the County Court - see at 397, 403. The court, in doing so, did not refer to any specific statutory basis for making this order, but it appears likely that it was made under s 44 of the Judiciary Act 1903 (Cth).

9 In R v Wong (1995) 16 WAR 219, Ipp J, in whose judgment Franklyn and Anderson JJ concurred, said, at 228:

"Section 697 of the Criminal Code empowers this Court to exercise in relation to the proceedings of the court "powers which may for the time being be exercised by the Supreme Court on appeals in civil matters". Section59(1) of the Supreme Court Act 1935 (WA) empowers the Full Court to order a new trial. Counsel for the appellant properly drew to our attention the fact that in R v [T] [1995] 2 Qd R 192, some doubts were expressed as to the basis on which the Court of Appeal in that State had jurisdiction to set aside a sentence and to order that the matter be returned to the District Court for sentence to be given. Despite those differences, the Court of Appeal were unanimously of the view that the court had the power to remit the case to the District Court for sentencing afresh. The legislative provision on which the members of the Queensland Court of Appeal relied were largely those set out in the civil rules of the Supreme Court of Queensland, read with the Queensland equivalent of s 697 of the Criminal Code. The provisions of the Queensland rules in question are broadly similar to the rules applicable in Western Australia. Furthermore, s 59(1) of the Supreme Court Act gives added support to the proposition that this court is empowered to remit a matter to the District Court for sentencing anew and, in my view, this court does have that power. Accordingly, I would set aside the sentence imposed on the respondent in the District Court and remit the matter to the District Court so that the respondent can be sentenced afresh."

10 In R v T [1995] 2 Qd R 192, it was accepted that, having set aside a sentence of a District Court, the Court of Criminal Appeal had jurisdiction to remit the matter for re-sentencing to the District Court. Pincus JA relied upon statutory provisions similar to those to be found in our Criminal Code. Section 671B of the Queensland Code is in similar terms to s 697 of the Western Australian Code, while the Queensland O 70 r 11 is relevantly similar to our O 63 r 10(2). Pincus JA expressed the view that, although there may be room for doubt on the question as to whether remitting a criminal case to the District Court to enable re-sentencing to take place is ordering a "new trial" on the question, a more secure foundation for an order remitting a case to enable re-sentencing to occur was provided by O 70 r 11. McPherson JA, with Ambrose J agreeing, held that the court had jurisdiction under the general law, or under the provisions of s 47(3) of the Judicial Review Act 1991 (Qd), to order that the matter be remitted to the District Court. McPherson JA traced back the power under the general law to setting aside a judgment or conviction on an application for certiorari or other prerogative writ (such as habeas corpus) or prohibition when, if necessary, it would issue a writ of procedendo to return the proceeding to the inferior court or tribunal to be dealt with there. Unlike the position in Queensland, the writ of procedendo has been retained in this State - see O 56 r 32.

11 We were not persuaded that the unanimous decision of the Court of Criminal Appeal in R v Wong should be revisited. Accordingly, we ordered that the question of the indefinite sentence be remitted to the Judge of the District Court who had originally dealt with the matter for rehearing and determination.