CRAVEN v PRYCE

Supreme Court of the Northern Territory of Australia Martin J.
15, 30 November 1988

APPEAL -Justices Act - Convictions for speeding and driving at speed dangerous to public in that order - Charges arising from same complaint - Appeal against second conviction - Whether conviction amounted to appellant being twice vexed for same criminal conduct - Discretion of Court to prevent person being punished twice - ss. 7, 55 Traffic Act; s. 21 Criminal Code Act

CRIMINAL LAW - Practice and Procedure - Usual and proper practice - Arrangement of charges on same complaint - More serious charge to be put first and plea to it sought first - Procedure if plea entered to less serious charge first -
s. 67 Justices Act

CRIMINAL LAW - Motor vehicles - Offences involving - Speeding and driving at speed dangerous to the public - Charges arising from same conduct - Characterisation of offences for purposes of determining application of principle nemo debet bis puriri pro uno delicto - ss. 7, 55 Traffic Act; s. 21 Criminal Code Act
CRIMINAL LAW - Nemo debet bis puriri pro uno delicto - Two charges laid arising from same complaint - Charges of offences of varying seriousness, both involving speeding in a motor vehicle - Pleas of guilty entered and convictions recorded - Less serious offence dealt with first - Whether offender tried on second occasion for more aggravated form of first - Discussion of discretion of court to prevent person being twice vexed for same criminal conduct - s. 21 Criminal Code Act

CRIMINAL LAW - Sentence - Appeal against - Manifestly excessive - Driving at speed dangerous to the public - Second conviction for same offence within 15 months - Conduct warranted period of disqualification beyond statutory minimum - Deterrence of the individual - Protection of the public - s. 7 Traffic Act

LAW REFORM - Criminal Law - Practice and Procedure - Justices Appeal to Supreme Court - No power to make orders affecting counts other than those in Notice of Appeal - Orders demanded in interests of justice - Desirability that Court be so empowered - s. 177 Justices Act

Cases followed:
Connelly v Director of Prosecutions (1964) AC 1254

De Maris v Samuels (1980) 25 SASR 561
Falkner v Barba (1971) VR 332
Farrelly v Howells (1975) 12 SASR 520
O'Sullivan v Rout (1950) SASR 4
R v Elrington 121 ER 870
RV	Miles (1890) 24 QBD 423
RV	O'Loughlin Ex parte Ralphs (1971) 1 SASR 219
R v Worland (1964) VR 607
Weymiss v Hopkins (1875) LR 10 QB 378

Cases considered:
Hallion v Samuels (1978) 17 SASR 558
Hull v Nuske (1974) 8 SASR 587
Welton v Taneborne (1908) 21 Cox's Criminal Law Case 702

Cases referred to:
Cleary's Case (1914) VLR 571
Cranssen v The King (1936) 55 CLR 509

Counsel for the appellant Solicitor for the appellant

Counsel for the respondent Solicitor for the respondent

:	Mr  Loftus Loftus & Cameron
L Jenkins
NT Crown Solicitors

mar880052

mar880052

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 783 of 1988

BETWEEN:
STEPHEN FREDERICK CR. VEN
Appellant

AND:

LEONARD DAVID PRYCE
Respondent

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 30 November 1988)

This appeal arises out of proceedings before the Court of Summary Jurisdiction at Darwin on 19 August 1988, when the then unrepresented appellant unwarily and unwisely pleaded guilty to charges of exceeding the speed limit and driving at a speed dangerous to the public, resulting from his driving of the one motor vehicle along the one stretch of road at the one time.	Neither before the learned Stipendiary Magistrate nor before this Court was it suggested that at one stage of the incident the appellant was simply speeding and that at another stage that speeding became dangerous to the public.	Counsel for the respondent before me expressly disavowed that proposition.

In order in the complaint, the charge of speeding was first, and that of driving at a speed dangerous to the public second.	The charges were put to him in Court in that same order and he pleaded guilty to each in turn.

As I understand it, it is not the usual practice to so arrange charges on the same complaint in that way.
Normally the more serious charge is put first and the less serious thereafter.	That is for good reason, since if a plea of guilty is entered to the first the prosecutor should withdraw the other or invite the Court to dismiss it
(R v O'Loughlin Ex parte Ralphs (1971) 1 SASR 219, per Wells J. at p. 262 and Bray CJ at p. 232).	The magistrate should, I think, have been alert to the possibility of error arising from the divergence from usual and proper practice, and considered what should be done when the appellant was called upon to plead guilty to the charges.		He should have insisted upon the plea for the most serious charge being taken first.	Failing that, it would have been open to His Worship to decline to convict on the first charge (Justices Acts. 67), in the exercise of his discretion, and then proceed to deal with the consequences arising upon the plea of guilty to the second.

However, the Court proceeded to convict on the first charge.	It then proceeded to convict on the second charge and to impose penalties by way of a fine of $600 and

disqualification from holding a drivers license for 18 months.

It is only from that second conviction that the appeal is brought together with an appeal against those penalties.

Counsel for the appellant did not rely upon the doctrine of autrefois convict (Criminal Codes. 18).	He was quite right not to do so.	It is a plea in bar of a charge and no such plea was raised in the Court below.	Had the magistrate been alive to the novel circumstances confronting him it may have been open to him to convict on the second charge first, and then invite the appellant to change his plea of guilty on the first charge to raise the bar (see definition of "similar offence" Criminal Code s. 17).

Instead the appellant acted on the principle of what he termed "merger".	As the amended ground of appeal put it "The two charges in the complaint merged and there should not have been a conviction on the second count", that is, the plea of guilty having been made to the first count the magistrate was in error in proceeding to entertain the second.

In O'Loughlin, Ralphs was charged before a Special Magistrate, first, with having driven a motor vehicle whilst

so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle, and secondly, with having on the same occasion driven the motor vehicle while there was present in his blood the prescribed concentration of alcohol.	He pleaded guilty to the first charge and was convicted and fined.	The prosecutor then asked the magistrate to take a plea on the second charge.	The magistrate declined and directed that a stay of proceedings be entered upon the second charge, as in his opinion conviction upon that count would result in Ralphs being punished twice for the same act or acts.

The Court, Bray CJ, Wells and Sangster JJ., held that the magistrate had no power to stay proceedings (but, sees. 21 of the Criminal Code), and accordingly made absolute an order nisi for certiorari quashing that order, but at the same time affirmed in an extensive judgment, that it would be unjust for the second charge to proceed.

At p. 222 the Chief Justice posed the question of the Court's power "in its discretion to stay or otherwise deal with subsequent prosecutions, so as to prevent an abuse of process" and referred to the strict rule of autrefois acquit and autrefois convict (the "in peril tests"), an extension of the rule and a discretionary area.	As to the discretion, His Honour concluded, after review of the authorities, at p. 229, "though it is not free from doubt,

that the preferable view is that there is a discretion in the court to stop a second prosecution when the case does not fall within the rules of law relating to the effect of previous convictions and acquittals, but I think it unwise to express any opinion on the scope of the discretion except to say that it can only be invoked when there is something which savours of an abuse of process" (see also the commentary in Archbold 41st edition paras. 4 - 87 et seq).
I will largely restrict my consideration of the case to the facts in this appeal, that is, where there has been a plea of guilty to a lesser offence and plea of guilty to a greater offence, followed by a conviction on the lesser and conviction on the greater, followed by penalties.

At p. 223 His Honour said "it would seem logical that a conviction for the lesser offence should not bar a subsequent prosecution for the greater.	If the lesser offence is, as it were, merged in the greater, the contrary is not true" and went on to explain "Punishment for the greater ex necessitate involves punishment for the lesser when the lesser is wholly comprised in the greater, but not vice versa".	It is in the sense of the lesser being wholly co prised in the greater where there is first a conviction for the greater, that I think His Honour uses the phrase "merged in the greater".

Notwithstanding the logic adverted to by the learned Chief Justice, he goes on to refer to the merciful, rather than logical course followed by the Courts "They have refused in many cases to allow a man who has been convicted of an offence to be tried again for a charge involving the same facts in a more aggravated form".

Reference was made to R v Elrington 121 ER 870 and the remarks of Cockburn CJ. "we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form".	In that case the appellant had been acquitted of assault and battery and a fresh indictment, founded on the same facts charging assault and battery, accompanied by malicious cutting and wounding was later preferred.	That Bis Honour's remarks are not confined to the operation of the certificate of Justices given under statute is shown by reference to what was said by Pollock in R v Miles (1890) 24 QBD 423 at 435: "My decision is based on the broader ground that the conviction pleaded and the evidence given in support of it formed a good bar at common law to the present indictment" (see also Hawkins J. at p. 431 and Charles J. at
p. 438).

I consider that facts to support a charge of driving at a speed dangerous to the public are not the same as those to support a charge of exceeding the speed limit. Additional facts are required, that is, the facts which make the speed a danger to the public, and the speed need not be a speed which exceeds the statutory limit.	There are many degrees of assault, some more aggravated than others, and the authorities referred to show that where an assault has been committed and the prosecutor succeeds in securing a conviction on a charge of lesser gravity than that which might have succeeded, it is not open to them to bring a further charge of greater gravity based on the same facts.
It is not the case, but assume there to be two levels of penalty for simple speeding, one for exceeding a speed limit and another greater penalty for exceeding a speed limit in excess of 50 kph.	If the accused be charged and convicted for simply exceeding the speed limit and punished accordingly, I am sure that it would be unjust for him to be later charged and convicted for exceeding the speed limit by more than 50 kph., arising from the same facts.

Monahan J. in R v Worland (1964) VR 607 at 609 after referring to R v Miles, more extensively than I have done, and to a number of Victorian cases held that a conviction for common assault is a bar to a charge of assault with intent to rape, the intent doing no more than aggravating the assault, but went on to hold that such a

conviction was not a bar to a charge of attempted rape, since "when an assault has reached the point at which it becomes an attempt to commit rape it ceases to be a merely aggravated form of assault and becomes an assault of a different character".

Weymiss drove a carriage negligently and struck a horse ridden by Hopkins, causing her hurt and damage.		A superintendent of police preferred a complaint for that and Weymiss was convicted and fined.	A few weeks later Hopkins personally preferred a complaint under another Act alleging that Weymiss had unlawfully assaulted, struck and otherwise abused her.	Weymiss was again convicted and fined.	The two charges arose from the same facts.	The decision on a case stated arising from Weymiss' conviction on the second complaint (Weymiss v Hopkins (1875) LR 10 QB 378) is also reviewed in detail by Wells J. in O'Loughlin at p. 259, including the following extract from the judgment of Blackburn J:

"The defence does not arise on a plea of autrefois convict, but on the well established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be different punishments for the same matter".

The rule at common law seems to be expressed variously, nemo debet bis puriri pro uno delicto (No one should be punished twice for the one fault) and nemo debet bis vexari pro una et eadem causa (It is a rule of law that a man shall not be twice vexed for one and the same cause), a rule having application to both civil and criminal matters.	Where the rule applies, "the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher" (transit in rem judicatam) (Broom's Legal Maxims).

Notwithstanding certain "ambiguity of phraseology" (p. 260) Wells J. in O'Loughlin at p. 261 said "It appears to me to follow that this decision would impose upon a court faced with the accused's objection that he is being twice vexed for the same cause, the obligation to view the ingredients of the two offences, respectively, and the issues raised in the circumstances of the two prosecutions. If the Court forms the view that the gravamen of each offence is virtually the same the objection must be upheld".

Bray CJ. said that the principle he gathered from Weymiss v Hopkins, "is that, irrespective of the legal connection between the charges, and in particular irrespective of whether or not one charge is an aggravated form of the other or one of the legal ingredients of the other, a man shall not be convicted of two different

offences in respect of the same or substantially the same set of facts.	But it may often be a difficult task to ascertain whether or not this will happen".

Napier CJ. in O'Sullivan v Rout (1950) SASR 4 at
p. 6 put it this way "But the underlying principle is that the defence is available where there has been a judicial decision on the same accusation in substance, and where the question in dispute has already been decided".

The reverse position to the case in this appeal was under consideration in Welton v Taneborne (1908) 21 Cox's Criminal Law Cases 702.	Taneborne was charged with driving his car in a manner dangerous to the public and exceeding the speed limit, in that order.	At the conclusion of the hearing on the first charge the accused was convicted. The magistrate refused to hear the second information. In deciding the first matter the magistrate took into consideration, besides other circumstances such as the swerving of the car and presence of other vehicles and pedestrians, the speed which he considered to be an element of danger.	It was held by Lawrance and Sutton JJ. that the magistrate was right.	Lawrance J. said at p. 708 "	it
would be extremely dangerous to lay the respondent open to a
second charge for what, in all probability, he has already been punished".	Sutton J. had little to add.	Their Honours, I think were attracted to the argument by counsel

for the respondent that the case was covered by Weymiss v Hopkins (Sutton J. expressly refers to it).	Jelfs J., in dissent, seems to have approached the case as being one of a question of autrefois convict (p. 707), but goes on to say that his view does not conflict with Weymiss v Hopkins.	As he points out "The two things are separate, and the idea of the offence in the one case is quite different from the idea of the offence in the other.	Though I agree when it comes to a question of punishment it would be very wrong to add to
the punishment if the man was convicted of the first offence
...." .	Although ultimately coming to a contrary conclusion
on the case stated, Lawrance J. said at p. 707 "I agree with nearly every word that my brother Jelf has said with regard to the law, but it seems to me that the whole question turns on the finding of the magistrate at the hearing of the
c as e 11 •

In Falkner v Barba (1971) VR 332, the defendant had first been convicted for an assault on a scaffolding inspector.	He was later prosecuted for interfering with the inspector in the course of his duties, particulars of the interference being the assault for which he had been previously convicted.	The evidentiary facts in each matter were the same.		At p. 337, Gillard J., commented that "on its face proof of interference with an inspector would ordinarily be quite different in character to a charge of, say, assault.	To establish interference an informant is not

bound to prove assault.	If the informant had not given any particulars as he did in this case and had relied solely upon the conversations elicited by the defendant in the cross-examination of the victim	then it is probable the defendant could not have relied upon the {common law) doctrine	The foundational fact to establish the offence, to use the expression of Hodges J. in Cleary's Case (1914) VLR 571; 20 ALR 329, is quite different from the foundational facts to establish an assault" but, His Honour, bore in mind that the assault constituted the alleged interference.

His Honour went on "Patently, there may be two offences which are quite different in character in which the ultimate fact to establish guilt would be quite different, and yet in which the evidentiary facts to prove guilt would be the same.•	The example given is that of a prisoner convicted of interfering with goods in the control of Customs and later convicted of larceny of the same goods, the witnesses giving evidence of the same facts and describing the same acts of the prisoner in each proceeding. It was held that the common law doctrine did not apply, the ultimate facts to be found guilty on each case being quite different, "albeit the evidentiary facts were the same".
Paying regard to Weymiss v Hopkins, His Honour put forward the following proposition" .... where the ultimate fact alleged by and relied upon by an informant to establish

guilt in one information is the same as in a subsequent information of a similar character, then, in my opinion, a different result follows, even though the actual offences charged are not the same.	When the foundation of each charge is the same, then, in my view, the doctrine applies." In O'Loughlin, Wells J. (p. 265) expressed agreement with Gillard J., "I observe that when referring to Welton's case, Gillard J. emphasised the importance of the distinction drawn by Jelf J. between "A question at issue" and a fact that is "merely one ingredient".	This seems to me, with respect, to echo what Lord Hodson said in Connelly v Director of Prosecutions (1964) AC 1254 at p. 1337.	"After all, the cases ... seem to me to cling at least to the central principle that a second trial is permissible on a charge, other than that dealt with at the first trial, arising out of the same facts and involving an issue not disposed of at the first trial."

Wells J. returned to consider the difficulties associated with driving offence at pp. 284 - 285.	I think I should set out what His Honour there said, following as it does a most extensive review of the authorities:

"The difficulty presented by cases such as Welton's Case (202) springs from the legislature's use (which is perfectly natural in the circumstances) of the descriptive word "dangerous".	When that word is included in a charge it inevitably raises questions of degree, and authorizes and requires a court to consider all features of the defendant's driving to see whether that driving, regarded as a

whole, answers the alleged description.	Such an allegation differs fundamentally from a charge, such as wounding with intent to cause grievous bodily harm, where the several ingredients can be separated out so as to produce clear issues - Was the victim wounded by the prisoner?	Was the wounding unlawful?	Was the wounding (if done) done with a specific intent?	Was that intent an intent to cause bodily harm that was grievous?	But with a dangerous driving charge, the features of the driving differ widely from case to case.		In one case, proof of a speed in excess of the statutory maximum may be crucial; in another, the sort of driving alleged (for instance, rounding a blind corner on the wrong side of the road) may be such that it would be dangerous at speeds ranging from fast to quite slow.		In others again, the speed may be of some significance but, at the same time, may be well down the scale of heinousness when compared with other features of the defendant's driving.	It follows, in my view, that a conviction of dangerous driving, on a complaint alleging dangerous driving and driving at a speed above the statutory maximum, may, sometimes produce a situation akin to the case where a defendant, having been convicted of assault occasioning actual bodily harm, is subsequently charged with a common assault based on the same physical attack.	The doctrine of merger, could, we think, be invoked in such circumstances.		On the other hand, if the speed proved on the major charge was not egregious, and no more could fairly be said of it than that it was consistent with the dangerous driving clearly established by other proven facts, then we should ordinarly (sic) see no ground, in principle or authority, for not imposing a penalty on the speeding charge.

Between these two extremes there may occur all manner of cases in which questions of degree must be resolved in order to arrive at a decision.	But the structure of a complaint may vary from that of the complaint first discussed.	A driver may be charged in respect of several driving blunders - for example, failing, as a vehicle turning to the right, to give way, failing to give a signal upon turning to the right, and driving without due care. In such a case, the general charge may be described as of the same order of gravity as the specific charges, whereas in the complaint alleging dangerous driving and speeding, the general charge is the more serious of the two.		In my view, where the more, or most, serious of the charges is such that it could comprehend the less serious charge or charges, the first question after findings of fact

are made ought to be whether to convict of the general charge; but where, as in the case just posed, the charges are of the same, or substantially the same, order of gravity, then it seems to us that the court· should turn first to the specific charge or charges and, if a conviction is recorded on it or them, only consider a conviction on the general charge if the substance of the offence, as found, extends beyond the ambit of the specific offences, and includes some driving transgression that can fairly be disengaged from the remainder, and separately penalized.	Again, the question of whether to convict on all counts, or only on one or some, will depend, in the last resort, on the issues raised at the hearing, the findings on those issues, and the independence of the ingredients of the offences charged, all viewed together and assessed for the purposes of applying the principles I have laid down.	It may be a nice question in many cases whether the doctrine of autrefois, the principles of issue estoppel, or the discretion to prevent an abuse of process, ought to be invoked; but we have no doubt that a discriminating application of the rules of law relating to these matters can lead, in every case, to a solution consonant with the requirements of law and order, and of fairness to the individual and to the community."

Hi Honour also gave detailed consideration to the practice and process of courts of summary jurisdiction, commencing at p. 285.	At p. 288, he said "In short, when a defendant admits the truth of a complaint containing two counts a court is entitled to decline to record a conviction for a further offence, after dealing with a defendant on one, only when a fair analysis of all issues raised, in accordance with the principles above discussed, discloses that the main issue under one count, constituted, in substance the main issue, or one of the main issues, under the other, or the circumstances of the two alleged offences

raised issues respectively, that are very nearly of that description.	I should regard such a general proposition as according with the views expressed by Gillard J. in  Falkner v Barba".	Bray CJ. at p. 232 said that in normal
circumstances, when there are several counts being heard
together, the court should insist on the plea for the most serious offence being taken first.

The decision in O'Loughlin has been applied by a number of Judges of the Supreme Court of South Australia. Walters J., in Hull v Nuske (1974) 8 SASR 587, held that a conviction upon a count of resisting a police officer is not a bar to a conviction of assaulting the police officer, arising from the same set of circumstances.	Arguably, however, it can be seen from the recital of the facts that the defendant had first resisted arrest, and then when under arrest had assaulted the police.	In any event the appellant's argument on appeal appears only to have been directed to the issue of autrefois convict.

In Farrelly v Howells (1975) 12 SASR 520 Wells J. had occasion to consider the views to which he had come in O'Loughlin. The appellant had been charged with having
stolen a gallon of petrol from a parked car and of having unlawfully interfered with the same car on the same occasion, he having removed the cap of the petrol tank to

steal the petrol.	He pleaded guilty to both.	His Honour held that the conviction for larceny was a bar to conviction upon the charge of unlawful interference.	Apparently the larceny charge was put first, or at least at the same time of the lesser charge.	At p. 522, His Honour said -

"I pause here to note that the appellant did not tender, upon the charge of unlawful interference, a formal or informal plea of autrefois convict, nor did he ask the learned Special Magistrate to exercise his discretion and dismiss the complaint. But, if Mr O'Halloran (who presented a lucid and able argument in support of the appeal) succeeds on his principal ground that the prosecution for unlawful use was, after a conviction had been recorded on the larceny charge, barred, then the course that I must follow is clear enough.	Just as, when it appears from the facts alleged on a plea of guilty that the charge could not have been made out, the learned Special Magistrate who presides ought to direct a plea of not guilty to be entered, so, in my opinion, if a similar situation arises where a plea in bar should be entered or the Court's discretion should be invoked, the presiding Magistrate or Justices should direct the matter to be argued accordingly.	I hasten to add that in this case the learned Special Magistrate did not have the assistance of submissions from counsel for defence, but because the question raised in this appeal goes to the learned Special Magistrate's power to hear the unlawful interference charge I must take cognizance of it even at this stage."

As already indicated I respectfully agree with His Honour's observations as to the practice to be adopted.

At p. 524 he set out the conclusion reached by Bray CJ. in his consideration of Weymiss v Hopkins, at p. 224 of O'Loughlin "It was not the legal identity, or even the legal

similarity, of the offences in the abstract which was significant, but that it was sought to prosecute him twice in connexion with the same set of facts" and went on to refer to his own formulation of the rule, in O'Loughlin at
p. 258, in the following terms:

"The third kind of case comprised in the wider group of cases where an accused has been previously convicted is that in which the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former.	Where a previously convicted accused is confronted with a charge whose gist or gravamen answers that description, it appears that he may advance an objection in the nature of autrefois convict, and the later prosecution is thereupon barred.
The rule, in my opinion, is clear; its application must always prove difficult and excite controversy, because the Court must exercise a judgment of fact, degree, and characterization.

The gist or gravamen of the larceny was, of course, the taking and removal of the petrol with the necessary fraudulent intent.	The gist or gravamen of the unlawful interference was the removal, known to be without the authority of the owner, of the petrol tank cap and the lowering of the level of the petrol.	(I take the view that it would be a piece of jurisprudential pedantry to treat the petrol as other than part of the vehicle.)	In my judgment, the taking and carrying away was at an end, in the circumstances of this case, when the syphoned petrol was placed in the appellant's empty petrol tank; thereafter he was simply using that which he had stolen.	The interference with the vehicle was at an end when the appellant stopped syphoning the petrol into the container used.
The fraudulent element in the larceny charged comprised essentially the thief's knowledge that he was acting without right or authority and was depriving the owner of his petrol.	The appellant's knowledge that he was acting without authority was an essential ingredient in the road traffic offence charged, and the immediate and obvious result of

his syphoning off the petrol was that the owner would be deprived of his petrol: section 44 legislates (inter alia) with respect to loss caused to the owner, because it confers on the Court the power to award compensation for damage or loss suffered by the owner.

The question therefore arises, on the facts of this case, whether the Court, after recording the conviction on the larceny charge, and upon learning that precisely the same facts were being relied on in support of each charge and what those facts were, should have cancelled the record of the convictions and put the prosecution to their election."

Adverting again to the difficulty associated with the issue, His Honour said, at p. 525 -

"In all the circumstances, though with the hesitation that will almost always accompany the resolution of this kind of issue, I have reached the conclusion that conviction of the larceny in this case was a bar to a prosecution for unlawful interference.	In my opinion, there is a substantial identity between the gist or gravamen of the larceny and that of the unlawful interference.	I wish to emphasise that my conclusion rests upon the facts, circumstances and charges of this particular case.	My decision does not purport to go beyond them."

A further good example of the difficulties which may arise is to be found in Hallion v Samuels (1978) 17 SASR 558, another case dealing with resist arrest and assault police.	After referring to O'Loughlin at p. 563, Bray CJ. said "If the resistance to arrest is simply the use of force against the police officers, then the defendant cannot be convicted both of assault on them and of resistance to

arrest".	Referring to Hull v Nuske he said "The application of that case to the -present question is clouded by the fact that what was contended there was that the convictions of the lesser offence, resisting arrest, was a bar to the conviction of the greater offence, assaulting a police officer in the execution of his duty.	Here the position is reversed".

Where a charge of driving without due care was withdrawn because in substance it covered at least some of the same conduct that was the subject of a charge of driving in a manner dangerous to the public, and a charge of speeding was withdrawn because it referred to a charge of driving at a speed dangerous to the public, it was said that the principles of O'Loughlin were not overlooked (De Maris
v Samuels (1980) 25 SASR 561).	In that case, Jacobs J. at
564, referred to other observations of Bray CJ. and Wells J. in O'Loughlin at pages 228 and 285 respectively:

"It may be necessary in many cases to define sharply and precisely the facts constituting the acts or admission in respect of which he was previously convicted in order to ascertain whether the second prosecution is really in relation to the same set of facts."

and		"The question of whether to convict on all counts, or only on one or some, will depend, in the last resort, on the issues raised at the hearing, and the finding on those issues and independence of the ingredients of the offences charged."

Sangster J. in O'Loughlin at p. 293, agreeing with Bray CJ. and Wells J. said "There is an inherent power in any court, including a court of summary jurisdiction, to prevent a person being tried again for an act or omission for which he has already been punished".

The facts in the instant case on appeal did not emerge clearly before His Worship, although I think that a combination of what was said by the prosecutor, the appellant and the learned magistrate, combined with the magistrate's local knowledge led to a reasonably clear picture of what occurred.	Unfortunately the magistrate did not make any explicit findings of fact.	However, I have had the benefit of a map taken from a Darwin street directory, which shows the path taken by the appellant.	It was tendered by counsel for the respondent with the concurrence of counsel for the appellant.	With the benefit of that map and some other undisputed facts put forward at the hearing before the Court of Summary Jurisdiction it appears that at about 5.09 pm on Saturday, 18 June 1988, the appellant drove his motor vehicle in a southerly direction along Rapid Creek Road towards its T-intersection with Trower Road.	At that intersection he stopped at the traffic lights and then turned right into Trower Road and drove along that road, past another T-intersection with Rapid Creek Road on his left, under an overhead footbridge and then for some distance along Trower Road over Rapid Creek, past a

T-intersection with Freshwater Road on his right and to the point where he was intercepted by police near the
T-intersection of Trower Road and Lakeside Drive on his left.	The speed limit along Trower Road was 60 kph, he was checked by police radar at a speed of 115 kph, over what distance and between what points is not disclosed.	The traffic was moderate, with the appellant passing at least 6 other vehicles, whether travelling in the same or the opposite direction is not shown.	It was suggested by the prosecutor that he had also passed by a shopping centre but the appellant denied that, and it is sufficiently clear from the transcript that that alleged factor was withdrawn.	The appellant did not take issue with any other of the facts alleged, except to say that the speed of the vehicle was only about 110 kph.

In considering whether the offence of driving a motor vehicle at a speed dangerous to the public has been committed the Court shall have regard to all the circumstances of the case, including the nature, condition and use of the public street and the amount of traffic which was or might reasonably have been expected to have been, upon that street at the time.	(Traffic Acts. 7(2)).

The penalty for speeding is $200, or imprisonment for 6 months (s. 55), for driving at a speed dangerous to the public $2,000 or imprisonment for 2 years (s. 7(1)).

Driving at a speed dangerous to the public is obviously a greater offence than simple speeding.			Had the appellant been first convicted and dealt with for that offence I have no doubt, in the circumstances of this case, that it would have been contrary to the common law rule for the appellant to have then been convicted and punished for speeding.	The latter offence would have "merged" in the conviction upon the first.	However that is not what happened.	The charge of speeding and the conviction upon it did not take into account all of the ingredients which went to make up the offence of driving at a speed dangerous to the public.	A driver could be convicted of that latter offence without having exceeded any speed limit.		Although exceeding the speed limit may well be a fact going to make up driving at a speed dangerous, it is plain that there must be other circumstances which go to place the public in danger to justify a conviction on such a count.	The fact that the law creates separate offences and regards one as being more serious than the other, as reflected in the differing penalties, points to facts other than speeding of itself being required to be proved or admitted before a conviction can be entered on the more serious charge.	Not all exceeding of a speed limit constitutes a danger to the public and driving at a speed less than a limit may well do so.	Section 7(2) of the Traffic Act requires the Court to have regard to all the circumstances of the case, not just the speed at which a motor vehicle is driven.

The cases show that a court has a discretion to prevent a person from being twice vexed for criminal conduct, where that person has been once convicted for an offence and the statutory bar of autrefois convict is not strictly available or is not raised in response to a further charge arising from that same conduct.	The test to be applied under the extended principle, as to which s. 21 of the Criminal Code may or may not be an exhaustive statement, has been variously formulated and I will not attempt to put it in any other way.

For the reasons already given I do not consider
that:

the appellant was tried again on the charge of driving at a speed dangerous to the public for a more aggravated form of exceeding the speed limit;

the offence of driving at a speed dangerous to the public merged in the conviction upon the charge of exceeding the speed limit;

driving at a speed dangerous to the public is of the same character as exceeding the speed limit;

the appellant was liable to be, nor was punished for the same matter, or for the one fault or the same cause;

the gravamen of the two offences is the same or virtually the same;

that in deciding that the appellant had exceeded the speed limit, disposed of the questions in dispute, or which could have been the subject of a dispute, upon the more serious charge;

the idea of the two offences is the same;

the foundational facts to establish exceeding the speed limit are the same as to establish driving at a speed dangerous to the public.

The only other ground of appeal against conviction relied upon was that notwithstanding the plea of guilty the magistrate ought not to have convicted because the elements of driving at a speed dangerous to the public were not made out on the facts put by the prosecutor.	I reject that submission.	The facts were as I have previously recounted. The nature of Trower Road as a main road in suburban Darwin, the presence of other vehicles on the road at the time, and

the speed at which he drove the vehicle constituted a danger to the public.

The appeal against conviction on the charge of driving at a speed dangerous to the public is dismissed.

In my opinions. 177 of the Justices Act does not empower this Court to make orders affecting counts other than those referred to in the Notice of Appeal even where it is in the interest of justice to do so.	The same situation prevailed in South Australia (see Wells J. in O'Loughlin
p. 292).	I understand that concern has been remedied in that State and I suggest that consideration be given to the question in the Territory.	Had I allowed this appeal against conviction the appellant would probably have suffered no more than a mere conviction for exceeding the speed limit.

The appeal is also against sentence on the second charge, upon the sole ground that it was manifestly excessive.	No "definite or specific error is assigned" to the magistrate (Cranssen v The King (1936) 55 CLR 509 at 519).	His Worship said "on the first count of exceed the speed limit a conviction will be recorded.	On the second count of speed dangerous you are convicted.		You will pay a fine of $600, in default 12 days imprisonment.	You are disqualified from driving ••.. for a period of 18 months".

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The appellant is 18 years of age and is employed as a mechanic with a "take home" pay of $200 per week.	He told the magistrate that his driving license was "pretty important" because he test drives cars and that he was not sure whether he would lose his job if he lost his license.
When asked what he had to say, the appellant apologised, said he should not have done it and that it would not happen again.

The appellant was convicted on 12 May 1987 of driving in a manner dangerous to the public for which he was fined $300 and disqualified from holding a drivers license for 3 months.	Section 55(4) of the Traffic Act provides that upon conviction for an offence under s. 7 of the Act that persons license shall, by force of the conviction, for a first offence be cancelled and he shall be disqualified from holding a license for 3 months or such longer period as the Court thinks fit.	For a second or subsequent offence the period of compulsory cancellation and disqualification is for a period of 12 months or such longer period as the court thinks fit.

I was not given any evidence of the "tariff" applied in similar circumstances in the Court of Summary Jurisdiction.	The appellant has been twice convicted within about 15 months of endangering the public in his driving of a motor vehicle.	No reason was given for his conduct on

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this latter occasion.	The legislature prescribes a minimum disqualification of 12 months for a second offence, and it seems to me that that minimum is likely to apply in the least serious of cases or cases where by reason of subjective elements it is appropriate to adhere to it.
There may be extenuating circumstances, there may be a period of years between the first and second offence, and factors such as those may deserve no more than the minimum disqualification period.	None of those features was present in this case.	I have no doubt that the circumstances of this case warranted the imposition of a period of disqualification beyond the statutory minimum and I am unable to say that the period of 18 months was excessive in the proper exercise of discretion.	Nor do I consider the fine of $600 to have been so, nor the combined effect of the fine and disqualification.	This was the appellant's second conviction for an offence which put the public in danger within a relatively short period of time.	He needs to be deterred and the public is entitled to such protection as the law may reasonably provide.

The appeal against sentence is also dismissed.