AJS v The Queen

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.