Ajs v The Queen

[2007] HCATrans 164

[2007] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2007

B e t w e e n -

AJS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 26 APRIL 2007, AT 10.18 AM

Copyright in the High Court of Australia

MR C.B. BOYCE:   If it please the Court, I appear on behalf of the appellant with my learned friend, MS L.C. CARTER.  (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS C.M. QUIN for the respondent.  (instructed by Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Boyce.

MR BOYCE:   Your Honours, this appeal concerns the nature and effect of a judgment and verdict of acquittal and the occasion for its direction.  In this case the prosecution alleged the specific crime against the appellant.  At the end of the prosecution’s case the appellant told the prosecution that its evidence could not prove the crime alleged.  The appellant’s position was ultimately vindicated in the sense that the prosecution’s evidence was deemed insufficient by the court below.

KIRBY J:   Not only did he tell the prosecution but, as I understand it, he moved the court, did he not, and sought a verdict by direction?

MR BOYCE:   He did.  Yes, he sought that the count of incest be taken away from the jury.  I provided the Court Crier with copies of the no case submission and the ruling rejecting the submission.  It is unnecessary for me to take the Court to the detail of it at present but we ask the Court ‑ ‑ ‑

KIRBY J:   What would have been the order made at that time if that application had succeeded?  It would not have touched the second count, would it?

MR BOYCE:   No, it would not have.

GLEESON CJ:   Where are these counts?

MR BOYCE:   I am sorry, Sir?

GLEESON CJ:   The expression “second count” was just used.  Where are these counts?

MR BOYCE:   Yes.  The second count was a count that did not appear on the indictment.  It was a count that was left in the alternative to the jury.

GLEESON CJ:   Is the presentment what appears on page 1?

MR BOYCE:   Yes, your Honour.

GLEESON CJ:   That is the count and then there was an alternative offence left to the jury as a possibility.

MR BOYCE:   That is right.

GLEESON CJ:   Is that pursuant to a statute?

MR BOYCE:   Yes, pursuant to the Crimes Act, section 425.

GLEESON CJ:   Thank you.

MR BOYCE: In particular, section 425(3)(b).

GLEESON CJ:   Thank you.

KIRBY J:   The practice in Victoria is you do not have actually a count included in the presentment in the alternative to the count which is charged, it simply arises as a matter of law?

MR BOYCE:   I am not certain that that is the practice.  Perhaps Mr McArdle will help the Court with that.  All I can say is in this instance this is the procedure that was adopted.

GLEESON CJ:   I presume in an offence of murder in Victoria you just charge the person with murder and if the judge thinks there is an alternative of manslaughter to be left to them, he tells them that.

MR BOYCE:   Yes.

HAYNE J:   That is dealt with by the general provision about alternative verdicts, section 421.

MR BOYCE:   Yes.

HAYNE J:   You have to begin consideration of alternative verdicts in section 421, do you not? Section 425 then is a particular species of the genus created by 421.

MR BOYCE:   Yes.  However, ultimately the prosecution’s allegation on the count specified in the presentment failed, but unfortunately what should have occurred, it would seem, before the jury in that regard happened before the court below some 15 months later.  The appellant has come to this Court to get, if I may put it that way, what he ought to have received, it is submitted, from the jury that heard his case, namely, a verdict of not guilty on the counts specified in the presentment, an acquittal, a judgment in verdict of acquittal. 

It is submitted that the appellant should be in no worse position now than he ought to have been had the jury, if I may put it this way, done its job correctly. An assessment of his position now as opposed to the state of affairs that ought to have prevailed raises the question at the forefront of this appeal, namely, what is the nature and effect of a verdict and judgment of acquittal? Having allowed the appellant’s appeal against his conviction of incest and having quashed the conviction on that count, the court below had two options open to it and those two options are set out in section 568(2) of the Crimes Act.  It repays, it is submitted, to state the subsection in its terms.  It says:

Subject to the special provisions of this Part the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

The court below was vested with a discretion.  In order to understand how a Court of Appeal might choose between these two options and, indeed, to make good the submission ‑ ‑ ‑

HAYNE J:   Is that a proposition that proceeds from the unstated premise that 568(2) is a true alternative that is to be applied to the indictment as a whole?  Can I put it this way.  Assume contrary to the fact in this case that there had been an indictment charging several offences.  It would be open, would it not, under 568(2) for the Court of Appeal in respect of some counts to direct judgment and verdict of acquittal and in respect of other counts to direct that a new trial be had, would it not?

MR BOYCE:   Yes, because it is submitted that the jurisdiction of the court to hear the appeal or to entertain the appeal is predicated, it would seem, upon there being a conviction on a count.

HAYNE J:   But if it is right that in a multiple count indictment the Court of Appeal may make orders in respect of some counts directing judgment and verdict of acquittal and in respect of other counts directing a new trial to be had, does it follow in the present case where there are statutory alternative charges open for consideration by the jury at the trial of the accused that it is open to the Court of Appeal to direct judgment and verdict of acquittal in respect of the offence explicitly charged in the indictment, but to direct that a new trial be had in respect of the statutory alternative offences?

MR BOYCE:   That is a position that we have not been able in our researches to find carried out in the authorities.

HAYNE J:   Maybe.  What do you say is the position under the statute?  May such an order be made conformably with 568(2) of the Crimes Act?

MR BOYCE:   May I put it this way, your Honour.  Were that the case, the appellant’s position that he comes to this Court to vindicate would be vindicated, but your Honour’s question is broader than that.  Your Honour’s question relates to whether the section empowers a court to do that which your Honour has described.

KIRBY J: Is the answer to his Honour’s question given some resolution by the early words in section 568(2) which is, “if it allows an appeal against conviction”? Now, that is directed to conviction on a particular charge and one way of reading the section would be that the Court of Appeal concentrates on the conviction. If it decides to allow the appeal against that conviction, it then quashes that conviction and in respect of that conviction either directs a judgment and verdict of acquittal, which one would think it should do in the event that that conviction is unsafe or unsatisfactory, as the words go, and then leaves it to the operation of law to decide whether subsequently the prosecutor, on a matter that was not resolved by the jury’s verdict on that conviction, can in law bring a prosecution for that uncharged crime.

MR BOYCE:   That is the primary position that the appellant contends for.  In answer to your Honour Justice Hayne’s question, may I answer it this way.  If what your Honour has posited is correct, the words after “or”, namely “direct a new trial to be had”, would have to be given greater amplitude in terms of the counts to which it might refer than the first part of the conjunctive phrase, namely “verdict of acquittal to be entered”.  I mean, a verdict of acquittal can only be entered in respect of the count, as I think Justice Kirby has said, in respect of which there has been a conviction.

HAYNE J:   If then, for whatever reason, the practice were to be adopted of charging in the indictment the statutory alternative counts, on direction of judgment and verdict of acquittal on the first and most serious count, incest, could there be direction for new trial on the indecent dealing count?

MR BOYCE:   There could be.

HAYNE J:   If that were the position, questions of double jeopardy would not intrude, would they?

MR BOYCE:   No.

HAYNE J:   They would not intrude because, as a result of the appellate process, that which remained unresolved from the first and only institution of proceedings by the prosecution would go back for resolution.

MR BOYCE:   That is so, your Honour.

HAYNE J:   And questions of double jeopardy of the kind considered in Island Maritime and Pearce and other cases would not emerge in that case, but if there is the filing of a fresh presentment otherwise in effect in consequence of the working out of the appellate process, there is an opportunity, is there not, for debate about whether the Crown is having a second go at the accused?  Can I just tell you where the argument gets to so that you can deal with it.  The consequence of that is why would you not read 568(2) in a way that permitted the Court of Appeal to determine for itself whether there should be a new trial, or the possibility of new trial, on the statutory alternative counts rather than leaving it open for separate and perhaps only indirectly controlled determination by the prosecution?

MR BOYCE:   Sorry, is your Honour’s proposition premised on the basis that there has been an acquittal audit on the major count?

MR HAYNE:   On the major count.

MR BOYCE:   Well, apart from the submission I have made I can see no reason.

KIRBY J:   Just before you go making the concession, was your answer to Justice Hayne that questions of double jeopardy would not arise specific to the circumstances of this case, or was it a general answer in all alternative counts because there may be cases where the acquittal on the main count is inconsistent with a trial on the subsidiary and alternative count.

MR BOYCE:   The primary position of the appellant, no matter how one reads the section is that what are considerations of double jeopardy - there are at least two, they are either the plea in bar described as autrefois acquit; or secondly, some form of oppression for which an abuse argument might run.

HAYNE J:   But the case contemplated by Justice Kirby is one that would be determined, would it not, by the Court of Appeal in the light of its finding about why the first or major charge should be dealt with by entry of verdict of acquittal, judgment and verdict.

MR BOYCE:   If I understand your Honour correctly, it would insofar as the appellant might seek to raise an autrefois argument at any new trial – yes.

HAYNE J:   If, in this case, the Court of Appeal had determined there was insufficient evidence of any indecent touching, then there would have been a verdict and entry of acquittal on the whole indictment, would there not?  Enter judgment and verdict of acquittal on incest.  No order for new trial.  Nothing left to retry.

MR BOYCE:   Yes.  I hope I am understanding what your Honour is putting to me correctly.  The order for a new trial, when one boils it down, it is submitted, to its heart, is no more than really the logical consequence of not ordering an acquittal.  It does not bind the Crown.  It does not bind the court below.  I think the Chief Justice and Justice Callinan in the recent case of Taufahema in their dissenting opinion would have it that it is always open to the Crown to bring a new and different case, a new and different trial, even without the order for a new trial.

The order for a new trial, it is submitted, that is open to the – or I should put it correctly – the direction that there be a new trial, when one really boils it down – and I am sorry to repeat myself – seems to be no more than a failure to order an acquittal.  Now, if that is so, then really the question is – and if principles or fears of double jeopardy, at least insofar as autrefois acquit is concerned, cannot arise by dint of the learning found in Island Maritime, then the question is in each case does the court enter a judgment and verdict of acquittal.

KIRBY J:   The Court of Appeal cannot, as it seems to me if it is focusing on an appeal against a particular conviction, give the accused carte blanche.  It cannot enter an acquittal, can it, on anything else than that which has been the subject of the appeal against conviction?

MR BOYCE:   Indeed, which would be in this case the count of incest.

KIRBY J: Whilst I see some merit in the Court of Appeal being able to say, “Well, we’ve looked at the count of incest but it is inherent in the way we approach the matter” - and they did not do that in this case – “that the accused is not guilty of indecent dealing as well as incest. We just don’t believe and it isn’t established that anything happened”. That does sometimes occur - and to be able then to give an acquittal at large - but that does not seem to be what section 568(2) is concerned with. It is concerned with the particular conviction. Then in the appropriate way the appellate court is focusing its attention on the particular conviction and dealing with that and making a direction for a new trial or otherwise in respect of that conviction and it just leaves it to the future, to the operation of the law, principles in Island Maritime and Pearce and so on to decide whether if the prosecution brings a second indictment that can stand consistently with the earlier conviction.  In this case you concede it can.

MR BOYCE:   I concede that there can be no argument of autrefois acquit below.  There can be no plea in bar.  What your Honour has described is our primary position.  What Justice Hayne has described, if I may politely put it, is the secondary position because the appellant is here to, if I can put it this way, obtain his acquittal.

GLEESON CJ:   Is all this so that at a trial for indecent touching, or whatever, some judge will say to the jury, “You must give him the full benefit of his acquittal”?

MR BOYCE:   That is part of it.

GLEESON CJ:   Without explaining what that means?

MR BOYCE:   No, of course explaining what that means, in much the same way as – no, I am sorry, your Honour, yes, of course explaining that.  There are really two aspects that we have tried to describe in the submissions.  The first is that we submit that the acquittal in itself is of significance, symbolically, to an accused who is publicly alleged to have engaged in criminality.

KIRBY J:   It is not only symbolic, but if he is acquitted of this sort of crime every time he goes – if he ever goes to the United States he has to fill in a visa application, and no doubt other places, and therefore he can treat it as that he is innocent of the crime.  It is a very important thing in a family and amongst friends.  These things are not just symbolic.

MR BOYCE:   His conviction has been quashed on it and I suppose technically the presumption of innocence has never been rebutted.  Nevertheless, he has been wrongfully convicted, it seems.  He has spent 15 months in prison.

GLEESON CJ:   What is it that gets rid of his sentence, by the way?  Is there some section in the Act?

MR BOYCE:   I think it might be section 568, setting aside the sentence as a consequence of ‑ ‑ ‑

GLEESON CJ:   The order does not quash the sentence or set aside the sentence.

MR BOYCE:   There were other orders to the effect that did that, your Honour.

GLEESON CJ:   I am looking at pages 182 and 183. I am not doubting that his sentence has gone but I am just asking for you to point to the statutory provision or ‑ ‑ ‑

MR BOYCE:   If your Honour will bear with me.

KIRBY J:   Is it just a matter of logic that if the conviction goes, the sentence that is relevant to that conviction goes with the conviction?

MR BOYCE:   Your Honour, certainly it would be a matter of logic, but whether there is – I am not aware of – section 568(1) permits the court to set aside the conviction:

on the ground that it is unreasonable or cannot be supported having regard to the evidence ‑ ‑ ‑

KIRBY J:   Thinking back to the Court of Criminal Appeal, I think when I participated in setting aside a conviction I did not, at least as I remember it, go on to say, “And set aside the sentences.”  I think you just set aside the conviction and the sentence fell with the conviction.  I may be wrong on that.

MR BOYCE:   I am sorry, your Honour the Chief Justice, I just simply do not know. 

GLEESON CJ:   I just thought that when we saw the answer to that it might throw some light on this other argument, that is all.

MR BOYCE:   Indeed.  If I or my junior can assist ‑ ‑ ‑

GLEESON CJ:   Mr McArdle will probably be able to tell us.

MR BOYCE:   Hopefully.  I was making submissions as to the effect of the acquittal.  The first proposition is that in line with the manner in which firstly an acquittal is being treated by courts on a retrial or on a new trial in line with the cases such as Storey and Garrett, by operation it would seem if the principle of res judicata is taken to be correct of binding force and is a judgment, it is a judgment that vindicates the appellant’s position as an innocent man.

KIRBY J:   Now, as I recollect this case from the special leave, there were two statements in the Court of Appeal’s reasons - and I do not take this to be disputed now by the prosecution - that is the foundation for your claim to the right to an acquittal.  One was that there was no evidence of penetration, and penetration is essential to the crime of incest, and the other was the statement that the conviction was therefore not established beyond reasonable doubt and was, in the language that is often used, unsafe and unsatisfactory.

MR BOYCE:   Yes.

KIRBY J:   Is there anything else in the reasons that you need as the foundation for your assertion of a right in law to an acquittal?

MR BOYCE:   No.  The cases as to the exercise of the discretion which were examined by this Court recently in Taufahema - and one finds the principle expressed in the joint judgment examined by this Court in Taufahema in DPP (Nauru) v Fowler (1984) 154 CLR 627 at page 630. The Full Court at the second main paragraph on the page said:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.  In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case.  In the present case the admissible evidence given at the trial satisfies this test.  Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

This has been described as a two‑step process by the court below as recently as late last year in R v Thomas (No 3) which is on our list of authorities.  One finds another expression of the principle in King v The Queen (1986) 161 CLR 423, and in particular the judgment of Justice Dawson at page 433, midway down the page:

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective.  In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial –

Justice Murphy in the same case at page 427 expressed himself thus halfway down the page:

Where there was insufficient evidence at the original trial to warrant a conviction or if the evidence that will be available at any new trial is insufficient then it would be contrary to the interests of justice to order a new trial.  The appellant is entitled to an acquittal as of right –

It is understandable, it is submitted, that his Honour Justice Murphy would have expressed himself in this manner because if it is not appropriate to direct that there be a new trial when the conviction is unreasonable or cannot be supported having regard to the evidence, but the appeal court is obliged to do one of two things then it follows logically, it is submitted, that an appellant must be entitled in that instance to a directed verdict and judgment of acquittal.

KIRBY J:   Can I just interrupt to say you noted in your submissions that article by Dr Corns in the Criminal Law Journal and that article seems to suggest that there is a significant statistical difference in the practice of the Court of Criminal Appeal - the Court of Appeal of Victoria, in ordering new trials when compared to the Court of Criminal Appeal in New South Wales.  Do you remember that part?

MR BOYCE:   I vaguely do remember it, yes, your Honour.

KIRBY J:   It is really quite a significant difference.  It is much more common for the New South Wales court to order the entry of a judgment of acquittal on the conviction.  Is there anything in the Crimes Act (Vic) or in any other legal source that explains this disparity or not, that you know of?

MR BOYCE:   Not that I know of, no.  One cannot dwell upon that issue, your Honour, without remembering that for many, many years there was no power in England to order a new trial.

KIRBY J:   No, but we are talking about within Australia where the power came very early, if not at the very beginning of the copying of the English Criminal Appeal Act and in Australia, unlike England, the court was given the choice or the discretion but it is a discretion that has to be exercised according to law.

MR BOYCE:   Yes, your Honour.  I only raise the English position simply to illuminate, if you like, that it may well be that the very factors that caused the English politicians to hold off on empowering their intermediate appellate courts to be able to order a new trial ought be, perhaps, the very same considerations that should exercise the mind of an intermediate court in determining to do so when they do have power.

KIRBY J:   That is the kind of double jeopardy point that, having put the accused up and not being entitled on the evidence to a verdict of guilty, that you should not subject the accused to another ordeal. 

MR BOYCE:   Those considerations, it is submitted, are employed in the exercise of the discretion by the Victorian court commonly.

KIRBY J:   Not as commonly as New South Wales, according to Dr Corns.

MR BOYCE:   Perhaps not as commonly as New South Wales.  The considerations are twofold and I think the quotations from the relevant cases that I have made bear this out.  Not only is it relevant to consider the force of the evidence below or its character, but considerations that are also relevant in the exercise are others such as the fact that a certain appellant might have served their time, their age, their ill health, so forth.  These are all factors that are relevant.  It would be not just to give the prosecution the opportunity to put the one-time offender through it again.

GLEESON CJ:   Mr Boyce, you may need to take us to the provisions of the Crimes Act creating the offence that was charged and then creating the statutory alternatives.  I notice that you keep calling the offence that was charged incest, but that is apparently not the way it is described in the statute.

MR BOYCE:   No, I am sorry about that, your Honour.

GLEESON CJ:   What is the statutory provision that creates the offence that was charged in the presentment?

MR BOYCE: Section 44(1) of the Crimes Act:

A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step‑child.

GLEESON CJ:   Thank you.  Now, what is the section ‑ ‑ ‑

MR BOYCE:   The alternative is in section 47(1) described in the heading as “Indecent act with child under the age of 16”:

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.

GLEESON CJ:   Now, what is the provision that enables that alternative to be left to the jury for their consideration notwithstanding that it is not charged in the presentment?

MR BOYCE: Section 425(3)(b):

If on the trial of a person charged with an offence against section 44 or 45(1) the jury are not satisfied that he or she is guilty of the offence charged or of an attempt to commit the offence charged but are satisfied that he or she is guilty of . . .

(b)an offence against section 47(1) (indecent act with child under the age of 16)  . . . 

the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly.

GLEESON CJ: This does not produce any consequence for you or against you, but I would guess that the sort of thing the Court of Appeal might have had in mind is that that seems to contemplate that there is just one trial going on and on the trial of a person charged with an offence against section 44, the issue whether the person has committed the offence against section 47(1) is an issue that can be left to the jury for their consideration on that trial. But there is just one trial going on. Is that the approach that seems to have been adopted?

MR BOYCE:   This, if I might be so bold to submit, may have echoes of what was being put to me earlier by Justice Hayne.

GLEESON CJ:   The reason I put it that way is that where there are several counts in an indictment, the jury are usually told that there are several trials going on.

MR BOYCE:   Yes.

GLEESON CJ:   How many trials were going on here?

MR BOYCE:   There was one trial. I take the Court back to the words of section 568(2) which are important, it is submitted, that being that the court allowing an appeal against conviction, and the conviction was on the section 44 count.

GLEESON CJ:   But rightly or wrongly they seem to have done what they did because the statutory basis for leaving that alternative issue to the jury assumed that there was only one trial.

KIRBY J:   Surely there must be some procedure in Victoria where the prosecution has to specify which of the three possibilities in subsection 425(3) is being alleged against the person.  One trial or not, there has to be some particularity in what the accused is facing.

MR BOYCE:   And there was in this case.

HAYNE J:   The statutory route for that requirement is in 421(2) and (4), is it not?

MR BOYCE:   Yes.

HAYNE J:   Because 425, as I put to you earlier, is a species of the genus created by 421(2).

MR BOYCE:   Yes.

HAYNE J:   And 421(4) enables an order to be made that the jury are not to consider, that is, the issues are not to be left to the jury, about guilt of certain other offences and that by the end of a trial the jury know what they are to consider.

MR BOYCE:   Yes.

GLEESON CJ:   Presumably, or maybe I am presuming, the jury were directed, were they, that they would only come to consider whether there was an offence against section 47(1) if they found your client not guilty of an offence against section 44?

MR BOYCE:   Yes.  The directions appear referable to the alternative at appeal book 141 to 144.

GLEESON CJ:   Does it follow that if the jury had convicted your client of the offence against section 47(1), the form of their verdict would have had to be not guilty of what you call incest, but guilty of, or and guilty of, indecent touching?

MR BOYCE:   Yes, but that is why I opened the case in the manner in which I did, your Honour.

HAYNE J:   The jury would have been asked separate questions, would they not, about verdicts in page 144.

MR BOYCE:   Yes.

GLEESON CJ:   In practice in Victoria where manslaughter is left to a jury and the jury convicts of manslaughter assuming that there had been a charge of murder, does the verdict of the jury say not guilty of murder but guilty of manslaughter, or does it just say guilty of manslaughter?

MR BOYCE:   I think it is not guilty of murder.  I will check.  Yes, they deliver a verdict of not guilty of murder.

HAYNE J:   Separate verdicts are returned in answer to separate questions asked of the jury.

MR BOYCE:   Yes.  Could I draw the Court’s attention to appeal book 138 at line 17.  The judge in directing the jury tells them:

Accordingly, when my associate comes to take your verdict, you will be asked as to the count on the presentment.  Should your verdict on that count be not guilty my associate will go on to say and how say you as to the alternative count of committing an indecent act with a child under the age of 16 years and will take your verdict of that alternative charge also.

GLEESON CJ:   I do not know whether this expression “clearing the presentment” or “clearing an indictment” has any particular meaning, but what is it in the present case on the order of the Court of Appeal that got rid of, if I can use that expression, the charge of a contravention of section 44 against your client?

MR BOYCE:   There was nothing.  The conviction was quashed and, in my submission, there was no direction or order that cleared the presentment of that allegation.  That is what I think we are here for.

GLEESON CJ:   So is he still subject to that charge?

MR BOYCE:   No he is not.

GLEESON CJ:   Why not?

MR BOYCE:   Can I put it this way, your Honour.

CRENNAN J:   There has been fresh presentment, has there  not?

MR BOYCE:   Fresh presentment has not yet been filed, your Honour.

GLEESON CJ:   There is an undertaking I notice.

MR BOYCE:   There is an undertaking not to present the appellant again on the section 44 count.

GLEESON CJ:   The undertaking not to present him on the section 44 count appears to assume that but for such an undertaking there is an unresolved charge against him.

MR BOYCE:   Yes, that is right.

KIRBY J:   You say on the Court of Appeal’s reasoning there is no unresolved charge based on section 44.

MR BOYCE:   No, that is right.

KIRBY J:   And you are entitled to have the acquittal on that charge.  But the question still remains now, having looked more closely at 421 and 425 of the Crimes Act (Vic), whether the posited procedure being a single trial when the Court of Appeal ordered a retrial, they were contemplating a retrial on that matter which was left unresolved by the jury in the first trial, being the alternative charge under section 425. That still does not meet your point. You are still entitled to have the verdict of acquittal on the section 44 count, but it is now a little clearer in my mind that the peculiar Victorian practice seems to posit not separate counts, but a procedure where in one trial there is this alternative and it somehow is particularised during the course of the trial.

MR BOYCE:   Yes.  It is tolerably clear, notwithstanding the form of the order of the court below, it is submitted, that the court below anticipated a new trial on the lesser alternative.

KIRBY J:   But they did not say that.

MR BOYCE:  

They did not say that.

KIRBY J:   And on the face of the record and of their Honours’ actual order, you stand in peril of being charged on section 44 and bereft of your entitlement to a verdict of acquittal on section 44 which you say in the logic and reasons of the Court of Appeal you are entitled to as of right.

MR BOYCE:   That is right.  The reasons that we give for that are spoken of in the outline of submissions, namely, the public effect of the acquittal, its communicative effect for the appellant and that is no mean thing, it is a thing of some importance, but also its practical effect as a shield upon any retrial or any new trial.

KIRBY J:   The shield is a twofold shield, or at least potentially. The first part of it is a shield that would require the judge, if asked or perhaps even if not asked, to tell the second jury that your client had been acquitted of section 44 and what that actually meant and that they should consider that when they reach their verdict on the section 425 count or charge, but secondly – and I think this is the subject of the appeal tomorrow – whether additionally, as some authority in this Court suggests, the judge must tell the jury in the second trial that they must be careful not to return a verdict which casts doubt on the full effect and force of the earlier verdict which was in an associated crime.

MR BOYCE:   Yes.  May I submit this, the occasion for it will only arise should, it is submitted, the complainant on a new trial give evidence that would undermine the reasoning of the court below or the basis for what we contend is the need for an acquittal.  It may not happen, but it may.

KIRBY J:   It depends on how the evidence comes out.  If the complainant at the second trial does not assert penetration by the accused of her vagina, then you are in the same position as in the first trial.

MR BOYCE:   Yes.

KIRBY J:   If, however, she does, then the full force and effect of the first verdict becomes a very real shield if not a sword.

MR BOYCE:   It would be a shield.

GLEESON CJ:   Mr Boyce, is it your submission that what the Court of Appeal should have done was to say the conviction the subject of the appeal should be quashed, there should be a verdict and judgment of acquittal on the charge of an offence against section 44 of the Crimes Act and there should be a new trial on the alleged offence against section 47?

MR BOYCE:   Excuse me, your Honour.  If the section permitted of that, yes.

GLEESON CJ:   Does that then make it a question whether section 568(2) in the context, that is the context of the whole of the Crimes Act including the sort of provisions about alternative verdicts that we have looked at earlier, is sufficiently flexible to permit that course to be taken?

MR BOYCE:   Yes.

GLEESON CJ:   And that is a question of construction.

MR BOYCE:   Yes.

KIRBY J:   I was not quite sure on your written submissions where you ended up on that.  You seem to be trying to have a two‑way bet.

MR BOYCE:   I plead ‑ ‑ ‑

HAYNE J:   That is what counsel are paid to do, Mr Boyce.

KIRBY J:   Yes, but we are paid to try and pin you down.

MR BOYCE:   I also am paid to assist, I appreciate that.

KIRBY J: If I can say so, your written submissions are of considerable assistance but on this matter you appeared to prevaricate as to whether section 568(2) is a true alternative, an absolute alternative, and does not permit of a mixture of relief. Given that it is the grant of power to a court and in the event the highest court of the State dealing with the widest range of matters that come before the court and is a conferral of a power, one would normally construe that in the broadest possible way so as to deal with a myriad of cases that come to that court.

MR BOYCE:   Indeed. 

KIRBY J:   If the Court of Appeal had simply said, “And we order a new trial limited to the alternate charge”, would you have been here?  You say, “Yes, we would have been here if we had not had an order of acquittal”.

MR BOYCE:   Yes.

KIRBY J: Mr McArdle, though he seemed to buckle a little under the pressure of Justice Hayne, Justice Callinan and me in the special leave, ultimately firmed up and would not agree to that order of acquittal. So that is the real battleground in the case if the Court overcomes the question of the scope of section 568(2). He does not want to give you the acquittal. He does not want to go to any second trial with you brandishing the order of acquittal.

MR BOYCE:   Yes, it is to the importance of the acquittal that I would turn, but in order to attempt to assist the Court at least, the question of whether dual orders in the form anticipated by the Bench could be ordered, the indications from the cases such as we have been able to find would suggest that the court is given an “either/or”.

KIRBY J:   Is the language of that subsection (2) the same throughout Australia?

MR BOYCE:   No, it is the same in South Australia.  The language is different in New South Wales and the language that one finds in New South Wales is replicated in all other States and Territories other than ‑ ‑ ‑

KIRBY J:   Is that language more facultative and giving greater flexibility to the court?

MR BOYCE:   Yes.

KIRBY J:   Do you remember what the language is, the New South Wales ‑ ‑ ‑

MR BOYCE: The language is found in section 8(1) of the Criminal Appeal Act (NSW) which is set out in the case of Murrell 123 A Crim R 54 which is in our list of authorities. At page 59 of the report at paragraph 22 one will see section 8(1) of the Criminal Appeal Act set out there. It reads:

“8(1)  On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

The question of dual orders was considered, it must be read in the conjunction, however, with section 6 of the New South Wales Act.  I think it appears in Murrell’s Case but, if your Honours will just forgive me, but is in the following terms.  I am sorry, I cannot seem to find it in Murrell but it is in the following terms, section 6(2) of the New South Wales Act states that:

Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

So, with section 6(2) “the court shall” ‑ ‑ ‑

GLEESON CJ:   It has an obligation if it allows an appeal to enter a verdict and judgment of acquittal. That is qualified by section 8(1) which says it may, “order a new trial in such manner as it thinks fit”.

MR BOYCE:   That is right but one has to read 8(1) as a whole.

GLEESON CJ:   All right. In substance, what is the difference between that and section 568(2)?

MR BOYCE:   The words “in such manner as it thinks fit”.

KIRBY J:   They do seem to make it a broader power.

MR BOYCE:   I am sorry, your Honour?

KIRBY J:   That does seem to make it a broader power but it still has to be a very broad power, in subsection (2), given the repository of the power.

MR BOYCE:   Yes.

KIRBY J:    The repository of the power is the highest court of the State.  It has a constitutional position.  It is the general Court of Appeal of the State.

MR BOYCE:   Yes.  The question of dual orders is directly confronted in Murrell’s Case at page 63, your Honours, paragraph 35.  This is, of course, in the context of the New South Wales Act.  May I read it:

Both the Crown and Counsel for the appellant questioned whether the court could direct a verdict of acquittal for murder and make an order for a new trial confined to the lesser offence of manslaughter. That a power to order a new trial on a lesser count exists, in appropriate cases, is suggested by the presence, in s 8(1) of the Criminal Appeal Act, of the words “the Court may . . . order a new trial in such manner as it thinks fit”.

Although counsel were unable through their research to find any instance where this had occurred, there is in fact precedent for it in Kelly (1923) 32 CLR 509, a decision that has been followed in Miller [1951] VLR 346; Hanias (1976) 14 SASR 137 and Callaghan (1952) 87 CLR 115. Kelly was a case where the accused had been convicted at trial, on an indictment for murder, only of manslaughter; Miller is, however, more directly in point, since the jury had there convicted of murder, but on appeal that conviction was quashed.  A new trial was directed for manslaughter alone.  The court did not in that case direct an acquittal for murder.

It is important, if I may interpolate here, your Honours, to realise, however, that when we have included Kelly, Miller and Callaghan, and indeed I think Hanias in our list of authorities, Kelly is, insofar as we have been able to find, the authority of this Court that says that a section in the terms of section 568(2) will permit of an order for a new trial on a lesser alternative count. Importantly, however, in neither of the cases are there dual orders. In Kelly, which is in our list of authorities ‑ ‑ ‑

KIRBY J:   That was from the Supreme Court of Victoria and presumably on a provision similar to what would now be still appearing in 568(2).

MR BOYCE:   Yes.  In Kelly the first point to note, it is submitted with respect, is that the appellant, Mr Kelly, had been acquitted of murder.  So Mr Kelly had his acquittal on the major count ‑ ‑ ‑

KIRBY J:   Acquitted by the jury?

MR BOYCE:   By the jury, yes.

KIRBY J:   I see.  So he did not need an order from the Court of Criminal Appeal.

MR BOYCE:   No. Mr Owen Dixon, His Majesty’s Counsel, as he then was, submitted that if there was error as to directions as to the count of manslaughter, there would be power to set aside the whole verdict and order a new trial for murder. One finds that at page 511 of the recitation of the argument, 511 of the report, which is (1923) 32 CLR 509 at 511. But Mr Dixon, as he then was, went on to submit that this Court has jurisdiction to grant a new trial for manslaughter. This is under the similar terms as the section under consideration today. The Court dealt with that submission at page 516 of the report - it is towards the bottom of the final paragraph – and after having recorded the submissions that were made, at page 517 found:

The question whether the appellant in this case shall be again put upon his trial is one in which the interest of the community is involved as well as that of the individual.  In the opinion of a majority of the Court the public interest will be best served by ordering a new trial on the charge of manslaughter only, which may be had on the existing presentment to which the accused has already pleaded or, at the option of the Crown, on a new presentment for manslaughter.  The jury will then have to consider whether the accused brought about the death of Mrs. Overall in any manner that constitutes manslaughter.

I will not take your Honours on a Cook’s tour of all the cases but that ‑ ‑ ‑

GLEESON CJ:   Would you mind taking us back to Murrell for a moment?

MR BOYCE:   Yes, certainly.

GLEESON CJ:   At the bottom of 63 and the top of 64, just look at the passage quoted by Justice Wood from the judgment of Justice Herron in Quinn on the subject of autrefois acquit and in particular the words in emphasis.

MR BOYCE:   Yes.

GLEESON CJ:   As I understand it, what Justice Herron is there saying and referring to Lord Reading, is that if a person is charged with and acquitted of murder, that person cannot later be tried for manslaughter because an acquittal covers any offence of which he could properly have been convicted upon the trial of the first indictment, right?

MR BOYCE:   That is what his Honour says, yes.

GLEESON CJ:   Now, suppose in the present case the charge under section 47 had not been left to the jury, they were just a trial of your client on 44 and he was acquitted, found not guilty.

MR BOYCE:   Yes.

GLEESON CJ:   He could not thereafter have been charged for an offence against section 47, could he?

MR BOYCE:   He could.

GLEESON CJ:   How do you relate that to the words of Lord Reading?

MR BOYCE:   Because the elements of the two offences are quite different.  There is no autrefois argument that could be raised.

GLEESON CJ:   Well, can you relate that to the words of ‑ ‑ ‑

MR BOYCE:   Yes, sorry, your Honour.

KIRBY J:   Maybe the key is the word “properly.”

MR BOYCE:   Yes.  The fear is one of autrefois acquit.  That fear is now, it is submitted, with the benefit of the jurisprudence that has flowed upon the issue since, misplaced and it is certainly misplaced, it is submitted, in this case.

GLEESON CJ:   Can you just explain that.  You may be right but I ‑ ‑ ‑

MR BOYCE:   Because the ‑ ‑ ‑

KIRBY J: It is simple, is it not? It is because the essence of the crime of incest under section 44 includes penetration, whereas there is a whole gamut of offences that can amount to indecent dealing that do not involve penetration.

MR BOYCE:   Yes, that is the answer.

GLEESON CJ:   The essence of the crime of murder is intent to kill, and manslaughter does not involve intent to kill.  How do you relate that to what Lord Reading said?  He says:

an acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter –

How come?

MR BOYCE:   It is submitted with the benefit of Island Maritime it might not be.

GLEESON CJ:   Do you say what Lord Reading said is wrong?  I just want to relate your submission to what I noticed in the judgment of Murrell.

MR BOYCE:   Insofar as it relates to the argument as to autrefois acquit, yes.

GLEESON CJ:   We had a case within the last few months.  This is an old, old question, pleas in bar and the possibility of charging somebody with a lesser offence after an acquittal or a conviction in relation to a larger offence.  It is a very technical subject.

MR BOYCE:   It is and it is submitted it is answered by this Court’s decision in Island Maritime.  The relevant passages of the judgment are set out in the outline of submissions.

KIRBY J:   Was the Court unanimous in the orders in Island Maritime?  It is just that I think somewhere you used the word “majority”, whereas I think the Court did not differ.

MR BOYCE:   I think the Court was unanimous in its orders.  The treatment of the question of double jeopardy was not dealt with unanimously. 

GLEESON CJ:   This gets back to a decision in Pearce v The Queen.  There is a passage from Pearce v The Queen quoted in paragraph [26] of Island Maritime:

It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction of acquittal.

That is the same as Lord Reading is saying.  The elements of the offence of manslaughter are included in the offence of murder.

KIRBY J:   Is that a difference from the problem that is worrying the Chief Justice that indecent dealing is not a completely enclosed circle.  It is a circle that intersects with incest but it does not cover the whole field.

MR BOYCE:   Factually, it may.  The elements are quite different.  They are quite separate.

GLEESON CJ:   Can you make that good by telling us what are the elements in section 44?

MR BOYCE:   Well, I set the elements out in the submissions, which I have been endeavouring to find.  Paragraph 39 it is submitted that there is not commonality of elements as between the offence that the respondent seeks to try the appellant at a new trial, the offence of indecent act.  Section 47 at paragraph 40 states that:

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married –

and who is under his or her care, supervision or authority, indecency being a matter for the jury. Section 44(1) on the other hand states that:

A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child.

“Sexual penetration” relevantly means:

the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes -

Now, they are the elements.  What we take to be the ratio of Island Maritime insofar as autrefois acquit is concerned is set out in the judgments of Justices Hayne and Gummow at paragraph 63 of the judgment.

HAYNE J:   But whether or not that is right, Island Maritime was concerned with successive prosecutions, was it not?

MR BOYCE:   Yes.

HAYNE J:   Are we here concerned with successive prosecutions?

MR BOYCE:   In a sense, your Honour, yes.

HAYNE J:   Well, in a sense nothing.  Why are we concerned in any sense with successive prosecutions?

MR BOYCE:   Because no verdict has been taken on the alternative.

HAYNE J:   Just so.  Just so.  No verdict has been taken on a count regarded as a statutory alternative count in the singular prosecution brought by the prosecution.

MR BOYCE:   Yes.

HAYNE J:   We are not concerned are we with successive prosecutions, successive indictments, vexation of an accused by the Crown lining up again.  We are concerned with the outcome of the appellate process in respect of a single indictment.

MR BOYCE:   Yes, your Honour.  We try and understand why it was that there was no acquittal ordered on the count upon which there was a conviction. 

HAYNE J:   But you seek to introduce notions derived from Island Maritime, Pearce and the like about double jeopardy, do you not?

MR BOYCE:   Your Honour, only to try and understand why it was that we did not get the acquittal.  Now, I agree, your Honour, it is in the realm of hypothesis.  There is nothing in the judgment.

KIRBY J:   This is, as I understand it, your attempt to meet Mr McArdle’s objection to giving you the acquittal which you say on the face of the reasons of the Court of Appeal you are entitled to have.  But Justice Hayne’s question is really directed at why the prosecution will not agree to that and they are looking forward to the next trial.

MR BOYCE:   I did not take the respondent, at the special leave stage, to be asserting that there would be any autrefois argument that would be open to the appellant on a new trial on the strength of whether this is misconceived or otherwise on our part at the Bar table on the strength of Island Maritime.  In answer to Justice Hayne’s question, we are simply trying to appreciate what we understand to the be the unarticulated reason for why it was the normal course of events did not flow in this instance and there be an order of acquittal on the count upon which the evidence was insufficient.

HAYNE J:   In that respect the prosecution rely on Murrell.  The respondent to the appeal relies on Murrell.

MR BOYCE:   Yes, that is right.

HAYNE J:   The reasoning in Murrell cites what is said by Lord Reading in Barron.  The point I put to you is this, that where you are dealing with a single prosecution as distinct from successive prosecutions, if the point made by Lord Reading has application, it would bar the taking of a verdict of manslaughter once the verdict of not guilty was returned to the charge of murder, which rather suggests, does it not, that considerations apt to debates about successive prosecutions find radically – or are of at best indirect assistance in resolving the immediate question which is one about the proper disposition of orders whilst a single prosecution remains within the processes of the judicature following first appeal and it going back for trial.

MR BOYCE:   Yes.  Your Honour Justice Hayne, it may well be that the fear, any fear of autrefois acquit here, is misplaced.

GLEESON CJ:   Yes, but we may have to face up to and answer the question. Mr Boyce, I am looking again at section 425(3) which I presume was enacted amongst other things to overcome the kind of problem Lord Reading was dealing with, but – and again I am not suggesting this is contrary to your ultimate argument, when the next trial against your client takes place alleging an offence against section 47, section 425(3) will have nothing to do with it, will it?

MR BOYCE:   No.

GLEESON CJ:   Because at the next trial the jury is not going to be asked whether it is satisfied that he committed the offence under section 44.

MR BOYCE:   Yes.

GLEESON CJ:   That then suggests that the next trial of your client is different from and not merely a prolongation of the trial being referred to in section 425(3).

MR BOYCE:   Yes.

GLEESON CJ:   That may complicate even further the question of construction of section 568(2).

MR BOYCE:   It may.  If your Honour’s contention is correct though, it would, in my submission, further bolster the argument for the need for there to be an acquittal upon the major count.

GLEESON CJ:   That may be so.  I do not know.

KIRBY J:   That at least gets some support textually from the fact that the concentration of 568(2) is on the results that follow from the allowing of an appeal against a conviction, a particular conviction, in this case the conviction under the offence against section 44.

MR BOYCE:   Yes.

HEYDON J:   …..problem, Mr Boyce.  I am having at the moment some difficulty in seeing why this is not a hypothetical academic question.  Paragraph 67 of your written submissions says that the appellant:

should be permitted to say that he is “entirely innocent” of that particular act because he has been, in effect, acquitted of it.

MR BOYCE:   Yes.

HEYDON J:   Of course if there were an acquittal he would not have been “in effect” acquitted of it.  He would have been in every sense acquitted of it.  So you would ask, if it came up as a live issue, that the judge tell the jury at the second trial, “You must not worry about that part of the complainant’s evidence that dealt with penetration.  You have to ignore that evidence really because he is not guilty of any crime associated with that conduct.”

MR BOYCE:   Yes.

HEYDON J:   What is the difference between, in practical terms, saying that one has been acquitted of it and saying that one was convicted of it but the conviction was set aside by the Court of Appeal and the prosecution has undertaken not to proceed further to conviction on that charge, which is what both orally and in writing the prosecution is wanting to do?

MR BOYCE:   Yes, because the beginning point is to look at the words of the section, your Honour.  If the court below undertakes the first option it – and I will answer your Honour’s question on directed judgment and verdict of acquittal.  Now, as we have attempted to set out in the written submissions, since Sambasivam’s Case, and if not before, the principle of res judicata is applied in the instance of an acquittal, which is broader than considerations of autrefois acquit, autrefois acquit being merely put preclusive, as was explained by their Honours Justices Deane and Gaudron in Rogers and echoed by Justice Gummow in Pearce.

If res judicata is the basis upon which an appellant can rely upon the conviction then it is, as it were, a judgment, some would suggest that considerations of merger would apply, in particular Justice Brennan in Rogers, but it is a judgment.  It is more than merely preclusive, which autrefois acquit would have.  It is something that when he is asked – if he is asked, “What happened about that charge?” he says, “I was acquitted of that ‑ ‑ ‑

HEYDON J:   Are you talking about being asked at immigration at the airport at Los Angeles?

MR BOYCE:   No, I am talking about being asked in his community.

HEYDON J:   But what is the practical difference between saying, “I have been acquitted” and saying, “I was convicted but my appeal succeeded and the prosecution has undertaken not to prosecute me to conviction again on that.  It will start a prosecution but offer no evidence?”  What is the practical difference?

MR BOYCE:   The practical difference ‑ ‑ ‑

HEYDON J:   If your client was suffering some serious practical disadvantage then all these complex arguments obviously must be put into play and decided upon, but the prosecution is going to so behave as to ensure there will be an acquittal, so your capacity to enter the United States of America will not be affected.  Your capacity to get jobs will not be affected, but if there is a practical problem at the new trial, what is the practical problem?

MR BOYCE: The first problem is that the procedure proposed by our friends is that after the new trial on the lesser alternative he present my client on the section 44 count and offer no evidence. There is no shield there if it is required at the trial. There is no acquittal because it comes after the trial.

HEYDON J:   What is the practical difference between an acquittal being ordered before the new trial and some complicated explanation to be given about it, or possibly complicated, and another explanation being given which is that it has not happened yet but it will happen as soon as there is either a conviction or an acquittal on the 47 charge?  What is the practical significance of the timing difference?  How does it cause your client to be aggrieved in relation to the conduct of the second trial?  We should not answer questions unless it is going to make some practical difference.  If there is not going to be a practical difference, our minds are not really honed in attentive to the consideration that harm may be done one way and good another way.

MR BOYCE:   Your Honour, the judgment in Storey – I am answering your Honour’s question, which I must of course – the procedure of telling a jury about the acquittal is in these circumstances, when one reads Storey about the evidence of the complainant having been taken from the railway station and the jury being told, “You can’t consider him to be guilty of abduction with intent”, is difficult enough but that is the law.  Further complicating it by then telling the jury, “He’s not acquitted of it.  His conviction’s been quashed by the Court of Appeal and we’re going to have another hearing some time later down the track where we’re going to offer no evidence ‑ ‑ ‑

HEYDON J:   What about five seconds after this present trial terminates?  What is the difference between saying “He is acquitted” and “He inevitably will be acquitted very soon” in a practical sense?  I can see this is a very important point from the respondent’s point of view.  I am just having difficulty in seeing how it is important from the appellant’s point of view.  It is important from the respondent’s point of view because of other cases but from the point of your client, he is only worried about one case.

MR BOYCE:   I am sorry, I must have misunderstood your Honour.  In answer to your Honour’s question, if it makes no difference to me it will make no difference to him.

HEYDON J:   It makes a difference to him because he is not constantly involved in this type of litigation.  With a little bit of luck, your client will not be involved in it ever again.

GLEESON CJ:   Mr Boyce, is not part of the practical significance of this that there is a complainant involved in this case and she has a story to tell.

MR BOYCE:   Indeed.

GLEESON CJ:   She told her story on pages 14 and 15 of the appeal book.  When she comes up for a new trial either she will tell the same story or she will tell a different story.

MR BOYCE:   That is right.

GLEESON CJ:   If she tells a different story, she is going to take some consequences for it.  If she tells the same story, she is going to say that your client, as she said over and over again, put his fingers inside her vagina.

MR BOYCE:   Yes.

GLEESON CJ:   What is the jury going to be told at the new trial to make of that, that is, that evidence of penetration?

MR BOYCE:   If the appellant relies on the acquittal the jury are told, insofar as there is evidence given of penetration you ought to take the ‑ ‑ ‑

GLEESON CJ:   That is why I asked you the question some time ago about what you mean by the “full benefit of his acquittal”.  What is going, as you foresee, to go on at the next trial – let me avoid the word “new trial” – what is going to go on at the next trial assuming the complainant gives the same evidence as she gave at pages 14 and 15 of the appeal book?

MR BOYCE:   Much the same as what is described by the Chief Justice in Storey’s Case and one can ‑ ‑ ‑

GLEESON CJ:   I want to ask you what is going to happen, not to justify your answer by reference to authority, you can in due course do it, but what will happen at the next trial if she tells the same story as she told at the first trial in her evidence‑in‑chief?

HEYDON J:   What reason was assigned?

KIRBY J:   But I do not know that we should be hearing this, should we?

MR BOYCE:   No, I ‑ ‑ ‑

GLEESON CJ:   We have already heard half of it.

MR BOYCE:   No, your Honour, it is open to me ‑ ‑ ‑

GLEESON CJ:   What is the answer to the submission that you should have not – do not bother telling us about conversations you had over the telephone with the registrar.  The submission against you is that you should have asked for the matter to be relisted before the Court of Appeal, that you could and should have done that if you had a problem about the form of the order.

MR BOYCE:   The only submission I can make about it is that I did not do that but I contacted the court to determine whether the order was made in error and ‑ ‑ ‑

KIRBY J:   This might be the way things are done in Victoria but in most places things are done in open court and not in conversations with registrars.  If you thought you had a point of a defective order before the orders were perfected the proper course would have been to have had the matter listed in order to be argued in open court and orders made after some discussion and perhaps with short reasons.

MR BOYCE:   Perhaps, on reflection, that would have been a ‑ ‑ ‑

KIRBY J:   We cannot hear gossip about what went on between you and the registrar.

MR BOYCE:   No, and I do not ask the Court to do so.  I simply say in answer to the submission that I did not do that and say what I did do.  That may not have been enough but it is what I did do.  Mr McArdle spoke about the legal culture in Victoria in respect of ordering of retrials and the differential between the practice of ordering retrials in New South Wales as opposed to Victoria.

KIRBY J:   I think that that culture, if it is different, only arises at the second stage because the essence of your argument is you are in the first stage.

MR BOYCE:   Yes.

KIRBY J:   You are entitled to an order of acquittal, you say.

MR BOYCE:   Yes.  Just in respect of that ‑ ‑ ‑

KIRBY J:   It is not a question of the illness of your client or the passing of time or he served most of his sentence or anything of that kind.

MR BOYCE:   Yes, but in respect of the argument that was made I just do, if I may, draw the Court’s attention to footnote 19 of Mr Corns’ article where the author does note that:

Surprisingly, in one case, the Victorian Court of Appeal accepted that the verdict at trial was unsafe and unsatisfactory and against the evidence and the weight of evidence, yet ordered a new trial rather than an acquittal -

and names this case and then later quotes the finding of the court below.

KIRBY J:   So what?  He found it surprising, but that is what we have to decide.

MR BOYCE:   Yes.  Your Honour the Chief Justice inquired of us earlier before lunch as to whether there was a specific power dealing with the setting aside of a sentence.  We are unable to find any such power in the relevant legislation.

GLEESON CJ:   Thank you.

MR BOYCE:   The next submission as made by my friend was to the effect that the means by which he could vindicate his position was by attacking the complainant’s credit.  The simple submission that is made against that is that the problems that might be experienced by the Director in presenting his case on a new trial with the acquittal ought not trump what it is submitted is the appellant’s right.

The submission that my friend makes really points up the very difficulty of there being a new trial in any event and these matters are not academic.  They were considered directly in the case of R v Bartlett [1996] 2 VR 687which is on our list of authorities, in particular at page 699, the judgment of the President, as he then was. At page 698 it becomes clear. At line 25 the court says:

It is thus necessary, in the light of these conclusions, to consider whether this court, having quashed the verdicts on counts 1 and 3, should direct a new trial or whether it should direct a verdict of acquittal.

The court at line 15 on page 699 said:

It is for these reasons that I have formed the view that it would be unjust in the circumstances to direct a new trial. In exercising the discretion under s 568(2) of the Crimes Act, there of course has to be brought into balance, as the High Court in Director of Public Prosecution (Nauru) v Fowler . . . pointed out at 630, the interests of the community as well as the interests of the accused.  But it should not be thought, in my view, that because there is evidence upon which the applicant might be convicted on a re‑trial, a new trial should be ordered as a matter of course.  As the Court of Criminal Appeal in Western Australia pointed out in Rabey v R [1980] WAR 84 at 95‑6:

Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion.  The public interest in securing a fair trial of an alleged wrongdoer must be weighed against the public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and who has already been through one trial and an appeal.

These comments, in my view, are particularly apposite in this case.  It would not be easy, upon a re‑trial, to excise out of the complainant’s evidence those aspects of it which are relevant to the indecent assault without running the risk of infecting those aspects with other material in respect of which the applicant has been exculpated by virtue of the jury’s verdict on the other counts.

The very difficulties spoken about by the President are, in our submission, a further basis upon which it would be appropriate to order an acquittal. The next submission made by my learned friend is that he anticipated that the new trial ordered was a new trial on the section 44 count, but the appellant should take comfort in the fact that he will be protected by the respondent by dent of the agreement or undertaking not to present him again on the section 44 count.

GLEESON CJ:   That really does attribute to the legislation an extraordinarily oblique operation.

MR BOYCE:   Yes, it does.  An issue is taken with the procedure that was anticipated by our friend.  The next submission made by our friend was as to the meaning of an acquittal and it not being a judgment of innocence.  I have already made a submission about Garrett and what the Court had to say in Garrett as to whether it was a neutral fact.  The matter as to whether in these circumstances it is to be taken as a judgment of innocence is dealt with in some detail in Storey’s Case, in particular in the judgment of Justice Gibbs at page 387, The Queen v Storey (1978) 140 CLR 364 in particular at page 387. After having surveyed the authorities and, in particular, Sambasivam’s Case and the basis of the contention that an acquittal is a judgment of innocence being application of res judicata, his Honour says, halfway down the page:

From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted.  Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter.  Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. 

Again, similar comments by his Honour at page 390.  I will not read them out.  Verdict of acquittal is dealt with at page 390, halfway down the page.  At 396 in the judgment of his Honour Justice Mason at about point 75 of the page, similar comments I will not tax the Court with.  At 412, similar comments made by his Honour Justice Murphy at the base of the page:

In fairness, the accused should be entitled to prove that they had been acquitted and were innocent of the charge of abduction –

Perhaps most revealing is the dicta of Justice Aickin at page 415.  His Honour there sets out why that is so approximately halfway down the first paragraph:

That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment; it is res judicata.”  Thus the Court gave to the doctrine of res judicata in the criminal law an operation beyond autrefois acquit, which is limited to a second charge for the same offence.  Accordingly an acquittal of one offence must, in subsequent proceedings on any other charge, be treated as decisive of innocence on the original offence.  Evidence which, though relevant in a trial for a different offence, would show or tend to show guilt of the first offence cannot be permitted to do so.

So those, in the particular context of this case, are the dicta that we rely upon in answer to our friend’s submission, but we interpolate, though, that unless there be any doubt, the substance or the gravamen of the innocence of the charge of course is the failure to prove penetration, an element – and there will be further submissions on this, no doubt, but an element that we have contended is not alive before the jury on the purported new trial.

I must say I hope I did not in my submissions make it seem like any new trial would result in ample and florid appeals to the acquittal based as it is and as described by the Court in Storey.  That need not be so at all.  My friend spoke about forensic judgments and hypotheticals that may or may not be on the agenda.  These matters of which our friend speaks are further reasons, it is submitted, because they are so hypothetical, why the natural course ought flow in the present case, the natural course having been described earlier, that is that there be an order for an acquittal.

I will not reply on the issue of autrefois acquit because it is a matter that concerns further submissions.  My friend relied upon Darby’s Case.  It is important to remember in this context and especially in answer to what our friend said, especially in the context of R v Storey and Garrett’s Case that a very strong dissenting opinion in Darby – Darby of course was a case about the significance of the acquittal of a co‑conspirator who had been acquitted in another alleged co-conspirator’s trial.  It was a very strong dissent by Justice Murphy in the case where his Honour, in our view - where his Honour appeared to draw to the attention of the court the apparent inconsistency between the majority’s finding in Darby and the cases of Storey and Garrett.  In Darby’s Case (1981-1982) 148 CLR 668 which is on our list of authorities, the relevant part of his Honour’s judgment is found at pages 682 to 683. I will not read it all out, but one sees there the heading “The effect of an acquittal”.

At 683 his Honour said:

Previously this Court has made it clear that an accused is to be taken as entirely innocent of any charge of which he was previously acquitted.

His Honour cites Garrett and Storey –

The effect of Shannon is that a not guilty verdict in England is of much less value than a not guilty verdict in Scotland where the verdict of not proven distinguishes the cases where innocence is left in doubt.  In Australia there are no degrees of acquittal.  As between the State and the accused, either every judgment of acquittal is conclusive of innocence or none is.  The doctrine that acquittal does not mean innocence is unacceptable in a free society.

It is worth pointing out, your Honours, as perhaps a matter of historical interest that in the paragraph that I have just read after his Honour cites the cases of Garrett and Storey there is not found in the Commonwealth Law Reports at page 683 but is found at the Australia Law Reports citation of the case which is cited at 40 ALR 594 at page 605, the sentence after the citation of the two cases:

The only justification for this is that acquittal is a judgment of innocence.

HEYDON J:   Unauthorised reports have higher authority than authorised ones, do they?

MR BOYCE:   No, they do not.

HEYDON J:   Why are you reading us a sentence that Justice Murphy chose to omit from the Commonwealth Law Reports?

MR BOYCE:   Merely out of historical interest, your Honour.

GLEESON CJ:   You are not suggesting the omission was accidental, are you?

MR BOYCE:   No, I am not, I do not know why.

GLEESON CJ:   If it was deliberate, how does that help you?

MR BOYCE:   In a sense, it does not.

KIRBY J:   It does not seem as though that sentence is inconsistent with what his Honour went on to say.  He might have just thought it was redundant to say it.

MR BOYCE:   The point is that if there was any doubt at common law, it is submitted, about the matter and, it is submitted, there is not because of the passages that we have referred to in Storey and Garrett, the words of the section here put that question beyond doubt.

GLEESON CJ:   Your client, as a result of the decision of the Court of Appeal is to be taken to be innocent of sexually penetrating the child which is in no way inconsistent with an assertion that he wilfully engaged in an indecent act upon her.

MR BOYCE:   Not only that, our contention is there is no occasion we will make submissions about it for a plea in bar.  I am merely answering the submission that is made against us because the significance contended for as to the acquittal is not merely the shield on any retrial, so it is not simply that.  The submission contended for is twofold, its public significance to the individual, the Crown had made an allegation that failed.

The vindication of his position publicly because of that failure, that is, it is submitted, with respect, of great importance and in some respects

when one fixes upon it or pays attention to it, one wonders whether the hypothetical situation as it may or may not occur at a new trial ought not obscure that fact.  The primary fact, that is, as I have submitted, that an allegation was made, the presentment is not cleared and the normal course is a judgment and verdict of acquittal which is of communicative public importance as well as practical importance at a new trial.  Those are the only matters in reply, your Honours.

GLEESON CJ:   Thank you, Mr Boyce.  We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.24 PM THE MATTER WAS ADJOURNED