AJS v The Queen

Case [2007] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ
KIRBY, HAYNE, HEYDON AND CRENNAN JJ

AJS  APPELLANT

AND

THE QUEEN   RESPONDENT

AJS v The Queen
[2007] HCA 27
13 June 2007
M2/2007

ORDER

1.        Appeal allowed.

2.        Set aside paragraph 4 of the orders of the Court of Appeal of the      Supreme Court of Victoria made on 7 December 2005 and in its place       order that:

(a)judgment and verdict of acquittal be entered in respect of the charge of incest contrary to s 44(1) of the Crimes Act 1958 (Vic);

(b)there be a new trial limited to the offence of taking part in an indecent act contrary to s 47(1) of the Crimes Act 1958 (Vic) with the person named in the presentment filed on 3 February 2004.

On appeal from the Supreme Court of Victoria

Representation

C B Boyce with L C Carter for the appellant (instructed by Victoria Legal Aid)

J D McArdle QC with C M Quinn for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

AJS v The Queen

Criminal law – Verdicts – Statutory alternative verdicts – Appellant convicted by jury of one count of incest – Because of verdict on count of incest jury was not required to consider statutory alternative verdict of indecent act with a child aged under 16 – Court of Appeal quashed the conviction for insufficient evidence and ordered a new trial without specifying what charge or charges were to be tried – Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest.

Criminal law – Verdicts – Appellate jurisdiction – Whether the Court of Appeal's jurisdiction pursuant to s 568(2) of the Crimes Act 1958 (Vic) either to enter a verdict of acquittal or order a new trial should be read with the provisions of ss 421 and 425 regulating alternative verdicts.

Criminal law – Verdicts – Whether entry of verdict of acquittal and order for new trial on lesser alternative count engage principles of estoppel or preclusion.

Criminal law – Trials – Evidence – Whether, following an acquittal and order for a new trial on a lesser alternative count, the jury in the new trial should be informed about that earlier acquittal.

Crimes Act 1958 (Vic), ss 421, 425 and 568(2).

  1. GLEESON CJ, HAYNE, HEYDON AND CRENNAN JJ. The appellant was convicted at his trial on a charge of incest, contrary to s 44(1) of the Crimes Act 1958 (Vic), in that he took part in an act of sexual penetration with a person whom he knew to be his lineal descendant. The presentment contained only the count of incest and alleged that the appellant had digitally penetrated the complainant. On the appellant's appeal against his conviction, the Court of Appeal held[1] that "it was not open, on the evidence given by the complainant as to the issue of sexual…

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AGLC
AJS v The Queen [2007] HCA 27
Case
[2007] HCA 27
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by AJS against a decision of the Court of Appeal of Victoria. The appellant had been convicted by a jury of incest. However, the Court of Appeal quashed this conviction due to insufficient evidence and ordered a new trial without specifying the charge. The central dispute concerned whether the Court of Appeal should have entered a verdict of acquittal on the incest charge, or if its powers under s 568(2) of the *Crimes Act 1958* (Vic) to order a new trial should be read in conjunction with provisions regulating alternative verdicts.

The legal issues before the High Court were whether the Court of Appeal erred in not entering a verdict of acquittal on the incest charge, and how the Court of Appeal's powers to enter an acquittal or order a new trial interacted with the statutory provisions for alternative verdicts and principles of estoppel or preclusion. The Court also considered whether, in the event of a new trial on a lesser alternative count following an acquittal on a primary charge, the jury should be informed of the earlier acquittal.

The High Court reasoned that the Court of Appeal, having found the conviction for incest to be unreasonable and unsupported by evidence, was obliged to enter a verdict of acquittal on that charge. The Court held that the appellant was entitled to this acquittal as a matter of law. The Court further determined that a new trial should be limited to the statutory alternative offence of taking part in an indecent act with a child under 16, as this offence had not been considered by the original jury due to their verdict on the incest charge. The Court also indicated that it would be unlikely to be necessary or desirable to lead evidence about the appellant's acquittal on the incest charge in any new trial.

The High Court allowed the appeal, setting aside paragraph 4 of the Court of Appeal's orders. In its place, the Court ordered that a judgment and verdict of acquittal be entered in respect of the charge of incest, and that a new trial be held, limited to the offence of taking part in an indecent act with a child under the age of 16.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside paragraph 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 7 December 2005 and in its place order that:

(a) judgment and verdict of acquittal be entered in respect of the charge of incest contrary to s 44(1) of the Crimes Act 1958 (Vic);

(b) there be a new trial limited to the offence of taking part in an indecent act contrary to s 47(1) of the Crimes Act 1958 (Vic) with the person named in the presentment filed on 3 February 2004. (Kirby J agreeing with the Orders of the remainder of the Bench and in the main with their reasons, but with some reservations)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ CJ, HAYNE, HEYDON AND CRENNAN JJ KIRBY J
Further, it would seem unlikely that it would be necessary or desirable to permit any evidence to be led about the appellant's acquittal on the charge of incest. The critical point that would have to be made, if the complainant gave evidence of penetration, is that the jury may not conclude that penetration occurred. If reference were to be made to the appellant having been prosecuted for incest (and as earlier indicated, it is not apparent why that should be so) it would be necessary to tell the jury only that he had been acquitted of that offence and that they must accept that he did not digitally penetrate the complainant.Conclusion and Orders The appeal should be allowed. Paragraph 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 7 December 2005 should be set aside and in its place there should be orders directing that judgment and verdict of acquittal be entered in respect of the charge of incest contrary to s 44(1) of the Crimes Act 1958 (Vic) and that a new trial be had, limited to the offence of taking part in an indecent act contrary to s 47(1) of the Crimes Act 1958 (Vic) with the person named in the presentment filed on 3 February 2004. I agree in the orders proposed in the reasons of Gleeson CJ, Hayne, Heydon and Crennan JJ ("the joint reasons"). A present entitlement to acquittal of incest I agree with the reasons for those orders as set out in the analysis by their Honours of the provisions of the Crimes Act 1958 (Vic) under which the appellant was tried for the crime of incest; the powers of the Court of Appeal in disposing of the appellant's appeal to it; the appellant's entitlement to a direction for a judgment and verdict of acquittal on the charge of incest; and the availability to the prosecution of a new presentment against the appellant for the statutory alternative offence of "indecent act with a child under the age of 16"[22]. [22]Crimes Act, s 425(3). The last step, as the joint reasons have demonstrated, comes about by the combined operation of ss 425(3) and 47(1) of the Crimes Act, and s 568(1), taking into account the fact that the jury in the first trial never reached the alternative statutory offence, because of their verdict of guilty of incest which the Court of Appeal concluded was unreasonable and could not be supported having regard to the evidence. Upon reaching that conclusion, in my view, it was the appellant's right in law to have a verdict and judgment of acquittal directed by the Court of Appeal. Whatever consequences might follow, either for the appellant or for the prosecution, lie in the future. Strictly, they are not presented at this stage by any evidentiary facts. Further, there are three reasons of prudence why this Court should not, in my respectful view, decide or predict their disposition. Immateriality of possible future proceedings Uncertainty of a second trial:First, as this Court has said many times, the direction that a new trial be had (here on the statutory alternative charge left undecided by the first trial) is not a direction that a new indictment or presentment must be found by the prosecution[23]. That decision belongs to the Director of Public Prosecutions. The Court was told that the decision had not yet been made. [23]cf MacKenzie v The Queen (1996) 190 CLR 348 at 376‑377; Dyers v The Queen (2002) 210 CLR 285 at 297 [23], 317 [88], 331 [135].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, CJ, HAYNE, HEYDON AND CRENNAN JJ, KIRBY J

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