Bennett v The State of Western Australia
[2012] WASCA 70
•28 MARCH 2012
BENNETT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 70 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:61/2011 | 9 NOVEMBER 2011 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 28/03/12 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MARTIN PAUL BENNETT THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Possession of prohibited drugs with intent to sell or supply Admissibility of evidence of prior drug convictions -Whether evidence of conviction after trial is admissible as evidence of conduct alleged to be propensity evidence Evidence Act 1906 (WA), s 31A Criminal law Res judicata Application to criminal proceedings Whether a previous conviction of an accused after trial for an earlier offence is admissible at a later trial of the accused for other offences as evidence of the fact of the conviction and the material facts comprising the elements of the earlier offence Whether the evidence of the fact of the conviction, and the material facts comprising the elements of the earlier offence, is incontrovertible |
Legislation: | Evidence Act 1906 (WA), s 31A, s 47 Evidence Act 1995 (Cth), s 91, s 92(2) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11 |
Case References: | B v The Queen [1992] HCA 68; (1992) 175 CLR 599 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Buiks v The State of Western Australia [2008] WASCA 194 Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Di Lena v The State of Western Australia [2006] WASCA 162 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Donnellan v Public Trustee [2007] WASC 213 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385 Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 Hollington v F Hewthorn & Co Ltd [1943] KB 587 Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961 Kemp v The King [1951] HCA 39; (1951) 83 CLR 341 Mickelberg v Director of Perth Mint [1986] WAR 365 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 Preston v The State of Western Australia [2012] WASCA 64 R v Arp [1998] 3 SCR 339 R v Carne (1997) 94 A Crim R 249 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 R v Degnan [2001] 1 NZLR 280 R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384 R v Hill [1979] VR 311 R v Miles (1890) 24 QBD 423 R v P, NJ (No 2) [2007] SASC 135 R v Pennant [1998] 2 VR 453 R v Shepherd (1980) 71 Cr App R 120 R v Storey [1978] HCA 39; (1978) 140 CLR 364 R v Storey [1998] 1 VR 359 R v Young [1998] 1 VR 402 R v Z [2000] 2 AC 483 Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 Schugman v Menz [1970] SASR 381 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 492 Wemyss v Hopkins (1875) 10 QB 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BENNETT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 70 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEANE DCJ
Citation : THE STATE OF WESTERN AUSTRALIA v BENNETT
File No : ALB 46 of 2009
(Page 2)
Catchwords:
Criminal law - Appeal against conviction - Possession of prohibited drugs with intent to sell or supply - Admissibility of evidence of prior drug convictions -Whether evidence of conviction after trial is admissible as evidence of conduct alleged to be propensity evidence - Evidence Act 1906 (WA), s 31A
Criminal law - Res judicata - Application to criminal proceedings - Whether a previous conviction of an accused after trial for an earlier offence is admissible at a later trial of the accused for other offences as evidence of the fact of the conviction and the material facts comprising the elements of the earlier offence - Whether the evidence of the fact of the conviction, and the material facts comprising the elements of the earlier offence, is incontrovertible
Legislation:
Evidence Act 1906 (WA), s 31A, s 47
Evidence Act 1995 (Cth), s 91, s 92(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr H C Quail
Respondent : Mr J A Scholz
Solicitors:
Appellant : Hylton Quail
Respondent : Director of Public Prosecutions (WA)
(Page 3)
Case(s) referred to in judgment(s):
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Buiks v The State of Western Australia [2008] WASCA 194
Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Donnellan v Public Trustee [2007] WASC 213
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437
Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Hollington v F Hewthorn & Co Ltd [1943] KB 587
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961
Kemp v The King [1951] HCA 39; (1951) 83 CLR 341
Mickelberg v Director of Perth Mint [1986] WAR 365
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
Preston v The State of Western Australia [2012] WASCA 64
R v Arp [1998] 3 SCR 339
R v Carne (1997) 94 A Crim R 249
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Degnan [2001] 1 NZLR 280
R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384
R v Hill [1979] VR 311
R v Miles (1890) 24 QBD 423
R v P, NJ (No 2) [2007] SASC 135
R v Pennant [1998] 2 VR 453
R v Shepherd (1980) 71 Cr App R 120
R v Storey [1978] HCA 39; (1978) 140 CLR 364
R v Storey [1998] 1 VR 359
R v Young [1998] 1 VR 402
(Page 4)
R v Z [2000] 2 AC 483
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
Schugman v Menz [1970] SASR 381
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 492
Wemyss v Hopkins (1875) 10 QB 378
(Page 5)
TABLE OF CONTENTS
MARTIN CJ
Summary 6
The charges 6
The prosecution case 6
The propensity evidence 8
- 31 March 1993 8
30 July 1993 9
8 October 1996 9
29 April 1997 9
14 October 2005 10
8 14 October 2005 10
The grounds of appeal 11
- Ground 1 12
Ground 2 17
Unfairness 23
Conclusion 24
BUSS JA
The issues addressed in these reasons 24
The doctrine of res judicata 25
Res judicata in criminal proceedings 26
Res judicata: the facts implicit in a verdict of guilty after the trial of a criminal charge or in a plea of guilty to a criminal charge 34
Res judicata: the admissibility in a criminal trial of a previous conviction of the accused 35
Res judicata: the admissibility in a criminal trial of admissions against interest made by or on behalf of the accused in previous criminal proceedings 36
The present case: the admissibility of the fact of the appellant's convictions in 1995, after trial, in respect of the offences committed in 1993 39
MAZZA JA 41
(Page 6)
- MARTIN CJ:
Summary
1 There are two issues in this appeal against conviction on three counts of possession of prohibited drugs with intent to sell or supply. The first issue concerns the admissibility of evidence that the appellant had been in possession of prohibited drugs with intent to sell or supply on a number of previous occasions. The second issue is whether evidence of the fact that the appellant had previously been convicted on charges of possession of prohibited drugs with intent to sell or supply is admissible as evidence of the facts comprising the elements of those offences, where the appellant had pleaded not guilty and was convicted after trial. For the reasons which follow, both issues should be resolved against the appellant and his appeal dismissed.
The charges
2 The appellant was convicted in the District Court after trial by judge and jury on three counts of possession of a prohibited drug with intent to sell or supply. Each offence was allegedly committed on 6 February 2009. The first count concerned possession of 53.9 g of cannabis. The second count concerned possession of 22.3 g of methylamphetamine. The third count concerned possession of 4.5 g of MDMA (ecstasy).
The prosecution case
3 The prosecution case was to the effect that on 6 February 2009, police were conducting surveillance of a large two-storey house in Orana which is a suburb of Albany. The prosecution alleged that the appellant lived at the house with Mr Murray Tompkins. However, the evidence led at trial suggested that although the appellant had many possessions in the house under surveillance, he had recently commenced staying at his girlfriend's residence.
4 At about 11 o'clock on the morning of 6 February 2009, police observed a vehicle driven by a female at the front of the house under surveillance. The appellant was observed to leave the vehicle, remove a white plastic bag from the boot of the vehicle and enter the house.
5 At about midday, police executed a search warrant at the house. Eight people, including the appellant, were found inside the house; another was found fleeing out the back door of the house. A tenth person, Mr Tompkins, was found in the driveway on the property, where he was seen to retrieve something from a vehicle which he then placed in his
(Page 7)
- mouth before ultimately spitting it out. Testing established that the item which Mr Tompkins had attempted to swallow was a package containing traces of methylamphetamine.
6 The appellant was found inside a room in the house which appeared to be used for the storage of a significant quantity of memorabilia belonging to the appellant. The appellant was not the only person in the memorabilia room at the time police entered. Also present were two men and a woman. The appellant was sitting at a table. On the table, police found a silver home-made scabbard. Inside the scabbard police found a clipseal bag containing the methylamphetamine the subject of the charge against the appellant. During the search, the appellant admitted to police that the scabbard was his, but denied that there was anything in the scabbard and invited police to check it. When the drugs were found in the scabbard by police, the appellant denied possession or knowledge of the drugs.
7 Also on the table at which the appellant was sitting, police found a box within which a clipseal bag containing the MDMA the subject of the charge against the appellant was found. The appellant admitted that the box was his, but denied any knowledge or possession of the drugs, and advised police that someone had obviously borrowed the box and was using it whilst at the house.
8 In the lounge room of the house, police found a plastic bag similar to that which Mr Bennett had retrieved from the boot of the car that dropped him at the house. Within that bag were two large clipseal bags filled with a quantity of cannabis, which is the subject of the third charge brought against the appellant. At the time of the search, the appellant denied any knowledge of the cannabis, although at trial he admitted possession, while denying intent to sell or supply.
9 In the kitchen of the house, on a breakfast bar next to the lounge room, police found a clipseal bag containing a small quantity of methylamphetamine (5.35 g). Near the bag was a mobile phone box which contained other plastic bags, scales and a tick list. The DNA of another person present at the house, Mr Wade Slater, was found on the bag containing these drugs, and he was charged and convicted of possessing the drug with intent to sell or supply.
10 Drug paraphernalia was also found in the memorabilia room. However, there was no DNA or fingerprint evidence connecting the appellant with that paraphernalia, or indeed with the methylamphetamine
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- or MDMA which had been found in that room. A tick list was also found in a diary on the table in the memorabilia room where the appellant had been sitting. Mr Tompkins' fingerprints were found on that tick list. Mr Tompkins also had a tick list in his wallet.
11 On the prosecution case, the principal issue in relation to the charges concerning the MDMA and methylamphetamine was whether it had been established beyond reasonable doubt that those drugs were in the possession of the appellant. That question had to be determined by the jury in a context in which there were a significant number of people other than the appellant at the premises at the time of the police search. Of the 10 persons present, there was evidence suggesting that eight, including the appellant, had some association with prohibited drug use. There was direct evidence linking Mr Slater and Mr Tompkins with the possession of prohibited drugs at the house on the day of the appellant's alleged offences.
12 In addition to establishing possession of those drugs, the prosecution also had to establish intent to sell or supply. However, in the case of the methylamphetamine and MDMA, the quantities involved gave rise to the statutory presumption of intent to sell or supply under s 11 of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act), and the appellant was unable to give evidence to the effect that he intended those drugs for his own exclusive use, as he denied any knowledge of them.
13 In relation to the charge concerning possession of the cannabis, as the appellant admitted possession at trial, the principal issue was whether the prosecution had established beyond reasonable doubt that the appellant had the intention of selling or supplying that cannabis (the quantity being less than the amount creating a statutory presumption of intention to sell or supply under s 11 of the Misuse of Drugs Act).
The propensity evidence
14 The prosecution foreshadowed an intention to lead evidence of five prior occasions upon which the appellant had been in possession of prohibited drugs with intent to sell or supply, and of one occasion upon which the appellant had in fact supplied a prohibited drug to another. The conduct which the State wished to establish by evidence was as follows.
31 March 1993
15 During the course of a search of the appellant's home, police found two soap containers in the main bathroom. Inside each was a condom
(Page 9)
- containing a quantity of methylamphetamine (4.59 g and 4.11 g respectively) of significant purity (53% and 47% respectively). Paraphernalia associated with drug dealing was also found in the house. On 30 May 1995 the appellant was convicted after trial of possession of methylamphetamine with intent to sell or supply, and sentenced to a term of 12 months imprisonment.
30 July 1993
16 During a search of the appellant's car police found 26.4 g of methylamphetamine of low (1%) purity in 11 separate packages. Paraphernalia associated with drug dealing was also found in the car. On 13 October 1995 the appellant was convicted after trial of possession of methylamphetamine with intent to sell or supply, and sentenced to a further term of imprisonment of 12 months cumulative upon the term he was then serving.
8 October 1996
17 During the course of a search of the appellant's home, 179 g of cannabis material and seeds were found in a shed at the rear of the property. The appellant pleaded guilty to possession of the cannabis with intent to sell or supply.
29 April 1997
18 During the course of a search of the appellant's home, cannabis material weighing 10.6 kg (which included a lot of unusable cannabis material) was found in an out building used by the appellant as a bedroom. Green cannabis was in the process of being dried with electrical heating equipment, and 23 cannabis plants were being grown hydroponically. The appellant pleaded guilty to offences of possession of cannabis with intent to sell or supply and cultivation of cannabis with intent to sell or supply. With respect to these offences he was sentenced to concurrent terms of 12 months' imprisonment.
19 On 29 November 1997, the appellant was released to parole from this term of imprisonment. No relevant charges were brought against the appellant between then and the next occasion upon which he was charged with possession of a prohibited drug with intent to sell or supply in October 2005.
(Page 10)
14 October 2005
20 During a search of the appellant's home police found a package containing 27.8 g of methylamphetamine of 21% purity in the front pocket of his jeans. Paraphernalia associated with drug dealing was also found in the house. The appellant pleaded guilty to possession of the methylamphetamine with intent to sell or supply.
8 - 14 October 2005
21 The appellant sent a package to an associate in Tom Price through Australia Post which contained 0.52 g of methylamphetamine inside a cigar tin. The appellant pleaded guilty to supplying the methylamphetamine.
22 The admissibility of the evidence of these offences was considered at a pre-trial hearing. The judge conducting that hearing (who was not the trial judge) ruled that all the evidence was admissible. He also ruled, over objection, that evidence could be given of the appellant's conviction of the two offences to which he had pleaded not guilty and been convicted after trial. Although the appellant disputed the admissibility of the evidence relating to the offences committed in October 2005, on the hearing of the appeal the admissibility of evidence relating to those matters was conceded.
The evidence at trial
23 At trial the prosecution led evidence of the search of the house which was generally consistent with the prosecution case. Mr Slater was tried and charged (and as I have noted convicted) on the same indictment as the appellant. Mr Tompkins was not called as a witness, although he was made available to the defence should they have wanted to lead evidence from him.
24 Consistently with the pre-trial ruling, the prosecution also led evidence of the six prior convictions to which I have referred. In addition to the evidence of the fact of conviction, in respect of the offences committed by the appellant in 1993, evidence was led from police officers relating to the searches which they had conducted and which resulted in the appellant's conviction of those offences.
25 The appellant gave evidence in which he denied any knowledge or possession of the MDMA or methylamphetamine. However, as I have indicated, the appellant admitted possession of the cannabis. He denied any intent to sell or supply any of the drugs. He was cross-examined to a
(Page 11)
- limited extent with respect to the events giving rise to the 1995 convictions before an objection resulted in curtailment of that line of questioning.
The grounds of appeal
26 There are two grounds of appeal as follows:
1. The learned Judge erred in law in admitting the appellant's prior criminal conduct as propensity evidence pursuant to s 31A of the Evidence Act 1906,resulting in a miscarriage of justice.
Particulars
- 1.1 The appellant's conduct relating to offences on 31 March 1993, 30 July 1993, 8 October 1996 and 29 April 1997 was insufficiently temporally connected to and not significantly probative of his alleged possession of the drugs the subject of counts 3 and 4, nor his intention to supply any of the drugs the subject of the indictment.
1.2 If the appellant's conduct was significantly probative of either of those issues, the evidence should have been excluded as fair minded people would not think that the public interest in adducing all relevant evidence of guilt would have priority over the risk of an unfair trial.
2. The learned Judge erred in law in admitting the appellant's prior criminal convictions as propensity evidence pursuant to s 31A of the Evidence Act 1906, resulting in a miscarriage of justice.
Particulars
- 2.1 Whilst none of the appellant's convictions were evidence of a propensity, other than to be convicted, the evidence of the convictions on 30 May 1995 and 13 October 1995 has resulted in a miscarriage of justice as the conduct the subject of the convictions was not admitted by the appellant.
2.2 Evidence of those convictions where the conduct was not admitted unfairly undermined the appellant's character and credibility as the jury were told he had previously denied intending to supply the drugs the subject of the offences on 31 March 1993 and 30 July 1993, but was convicted after trial.
2.3 The admission of the convictions effectively removed the requirement for the jury to resolve for themselves the issue of whether the appellant committed the prior acts.
(Page 12)
27 It will be noted that ground 1 relates only to the evidence of the events which took place between 1993 and 1997, it now being conceded that the evidence relating to the events which took place in 2005 was admissible. The application for leave to appeal on ground 2 relates only to the evidence of the events which took place in 1993, it being conceded that the appellant's admission of guilt in respect of the events which took place in 1996 and 1997 rendered evidence of his conviction of those offences admissible, if evidence of the events which took place in 1996 and 1997 is admissible.
28 In relation to that aspect of ground 2 which asserts unfairness as a result of the admission of evidence of the appellant's convictions after trial, during the course of argument counsel for the appellant was asked, on a number of occasions, whether any reliance was placed upon the fact that, in addition to the evidence of the fact of the convictions, direct evidence was lead of the events giving rise to those convictions, and the appellant was cross-examined with respect to those matters (to a limited extent). Counsel for the appellant expressly eschewed any reliance upon those matters (on a number of occasions). An invitation to augment the grounds of appeal was declined, and the court was advised that the ground of appeal was limited to the admissibility of the evidence of the appellant's conviction after trial. There is no ground of appeal which asserts that the trial judge misdirected the jury as to the use which could be made of the appellant's prior convictions, or that the trial judge failed to direct the jury in a way which would mitigate the risk of unfairness to the appellant. Rather, the appeal was advanced solely on the basis of the inadmissibility of the evidence of the prior convictions.
Ground 1
29 The prosecution did not contend, either at first instance or on appeal, that the propensity evidence was admissible at common law. Accordingly, the appeal has been conducted on the basis that the admissibility of the propensity evidence is governed by s 31A of the Evidence Act 1906 (WA) (Evidence Act), which provides:
(1) In this section -
propensity evidence means -
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
- relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
- (2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
31 Having regard to the extensive case law dealing with the proper construction and application of the section, it is unnecessary to canvass the development of the jurisprudence relating to the section in these reasons. In this case there was no dispute that the evidence which the prosecution wished to adduce came within the definition of 'propensity evidence'. The basic propositions underpinning ground 1 of the appeal are that because of the substantial lapse in time between the events which occurred between 1993 and 1997, and the events in February 2009 which were the subject of the charges brought against the appellant, the evidence did not have significant probative value and the risk of an unfair trial was such that fair minded people would not think that the public interest in adducing the evidence must have priority over the risk of an unfair trial.
(Page 14)
32 The significance which the appellant attaches to the lapse of time between the prior offending conduct and the events the subject of the charges brought against the appellant is evident in the appellant's concession that evidence of the events which took place in 2005 was admissible. Indeed the appellant relies upon the admissibility of the evidence relating to the events which took place in 2005 to diminish the probative value of the evidence relating to the events which took place earlier. The appellant argues that evidence of the events which occurred in 2005 was sufficient to eliminate any risk that the appellant would present his case to the jury on the basis that there was no evidence of his prior association with prohibited drugs in a context in which there was evidence before the jury that many other people present at the house in Albany on the day it was searched had such an association, including particularly Mr Slater and Mr Tompkins.
33 Preston is another case in which great emphasis was placed upon the lapse of time between the events the subject of the propensity evidence, and the events the subject of the pending charges. The lapse of time involved in that case was 10 years. The appeal in that case was heard by the same court on the same day as the appeal in this case. Our reasons for dismissing that appeal will be published simultaneously with these reasons. As is apparent from the reasons in Preston, while lapse of time between the events the subject of the propensity evidence and the events the subject of the pending charges will, of course, be relevant to an assessment of the probative value of the propensity evidence, it will not necessarily be determinative of that assessment. The significance of the probative value of the propensity evidence must be assessed in all the circumstances of the case. To take an example, in a case in which the propensity evidence reveals a modus operandi which is strikingly characteristic of the modus operandi alleged in the pending case, lapse of a significant period of time between the two events will be less significant. Conversely, where the connection between the conduct the subject of the propensity evidence, and the conduct charged is more tenuous, lapse of a significant period of time between the two events will attain greater significance.
34 In cases involving possession of prohibited drugs within intent to sell or supply, propensity evidence revealing a personalised or strikingly characteristic modus operandi is inherently less likely. That is because the practices of those charged with such offences have a certain similarity, including the location of drugs in clip seal bags in differing hiding places, the usual presence of scales and other paraphernalia associated with drug dealing, tick lists, significant amounts of cash and so on. In these cases,
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- the propensity evidence will usually go no further than establishing a disposition on the part of the accused person to engage in drug dealing. The probative value of evidence of that character will depend upon the extent to which it establishes a disposition which could have had an influence upon the behaviour of the accused at the time of the commission of the alleged offence or offences.
35 The probative value of evidence of that character will also depend upon a variety of other circumstances which cannot be exhaustively identified such as, for example, in both Preston and this case, the significance of the evidence in excluding an innocent association between the accused and the drugs that have been found, in a context where the evidence points to others with a prior association with prohibited drugs who might also have had access to the drugs that were found.
36 However, excluding considerations of that kind, speaking generally, a single event of drug dealing many years before the offence being tried will obviously have less probative value than an event much closer in point of time. Similarly, where the propensity evidence establishes multiple prior instances of drug dealing, it will, generally speaking, have greater probative value than evidence of a singular event, because it points more strongly to an established and enduring disposition to engage in dealing in drugs.
37 In the present case, the appellant concedes that evidence of the two events which took place in 2005 was sufficiently proximate in point of time to the alleged offending in 2009 to properly characterise the evidence of those events as having significant probative value. However, those offences took place at or about the same time in October 2005. The jury may well have considered them to be, in essence, a single event which, while excluding the view that the appellant had no prior association with prohibitive drugs, fell short of establishing an enduring disposition to deal in drugs. Any doubts which the jury had in this respect were likely to be significantly influenced by the evidence of the four occasions between 1993 and 1997 which resulted in the appellant's conviction for drug dealing. The evidence of those events, together with the evidence which the appellant concedes was admissible in respect of the events which took place in 2005, amply sustain a conclusion that the appellant had a long established and enduring disposition to deal in prohibited drugs and to that extent was evidence of significant probative value.
38 In the course of argument counsel for the appellant relied heavily upon the period of almost eight years between the appellant's release on
(Page 16)
- parole in November 1997, and his commission of further offences in October 2005. However, the fact that the appellant committed further offences in October 2005 deprives that argument of much of its force. But for the 2005 offences, it might have been argued that the lapse of time weakened the extent to which it might be safely inferred that the appellant's previous disposition to deal in prohibited drugs remained at the time of the alleged offending (although see Preston, where evidence of the appellant's possession of methylamphetamine with an intent to sell or supply 10 years earlier was held to be admissible). However, where the relevant lapse of time is followed by further offending, it can be safely inferred that the appellant's predisposition to deal in prohibited drugs has persisted notwithstanding the effluxion of time.
39 More colloquially, the evidence of the appellant's prior possession of prohibited drugs with intent to sell or supply, and of his supply of a prohibited drug to another, was capable of sustaining an inference that the appellant was, at the time of the alleged offences in 2009, an habitual drug dealer who had adopted that vocation in life. That conclusion, if drawn by the jury, was of significant probative value in the circumstances of the case before them.
40 Turning now to the second question which must be addressed, which requires the probative value of the evidence to be weighed against the risk of an unfair trial, it is of some significance that there is no complaint in respect of the directions given by the trial judge as to the use which the jury could make of the propensity evidence and of its limitations. In the context of this case, where the jury were confronted with evidence of a situation in which there were many people present in the house at the time the drugs were discovered, a significant number of whom had some association with prohibited drug use, the propensity evidence relating to the appellant acquired a particular significance. The trial judge properly directed the jury that the evidence was insufficient, of itself, to satisfy them beyond reasonable doubt of the appellant's guilt, but in a context in which the appellant admitted possession of the cannabis, and the MDMA and methylamphetamine were found in a box and scabbard which he admitted owning, and very close to where he was sitting in a room which contained his property, fair minded people would think that the interests of justice required the admission of the evidence despite its risks.
41 For these reasons ground 1 should be dismissed.
(Page 17)
Ground 2
42 As I have noted, the application for leave to appeal in ground 2 is only concerned with the admissibility of the fact of the appellant's convictions in 1995, after trial, in respect of the offences committed in 1993. The argument advanced in support of the ground has two basic components:
(a) propensity evidence must be evidence of the appellant's prior conduct, and the fact of conviction is not evidence of that conduct, unless the conviction is obtained on a plea of guilty, which renders the conviction admissible as an admission against interest;
(b) evidence of conviction after trial is unfair, because it undermines the appellant's credibility.
43 If a conviction obtained after trial is admissible as evidence of the occurrence of the facts constituting commission of the offence by the offender, a question may arise as to whether those facts are incontrovertible, in the sense that no party can lead evidence intended to undermine or collaterally attack the correctness of the conviction - see for example R v Carroll [2002] HCA 55; (2002) 213 CLR 635; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [76] - [80]. If it were to be concluded that the conviction, and the material facts underpinning the essential elements of the offence giving rise to the conviction are incontrovertible, it would not be open to an accused person to lead evidence which is inconsistent with the conviction or those facts. If that were the case, it might be argued that the prosecution is confined to the material facts underpinning the essential elements of the offence found by the court at the time of conviction or in the case of trial by jury, as found by the trial judge for the purposes of sentence, and should not be permitted to lead evidence augmenting or aggravating these facts. It might also be argued that cross-examination of the accused with respect to those facts would be unfair, because the accused would be precluded from denying guilt or leading evidence to the contrary, because of the incontrovertibility of the conviction.
44 However, none of those issues arise in this case, as the appellant has, through his counsel, expressly eschewed any reliance upon the evidence led by the prosecution from the police officers involved in the investigation of the 1993 offences, or upon the appellant's cross-examination with respect to those matters, and has expressly
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- eschewed any challenge to the adequacy or correctness of the directions given by the trial judge to the jury.
45 The issue of the admissibility of a conviction (obtained after trial) as evidence of the facts constituting the commission of the offence is separate and distinct (but not unrelated) to the issue of the effect of the conviction upon the ability of the parties to lead evidence which would undermine or impugn its correctness: see Mickelberg v Director of Perth Mint [1986] WAR 365. In this case, the appellant's argument is limited to the proposition that the only way in which conduct giving rise to an inference of propensity to offend can be established is by direct evidence of that conduct, in accordance with basic evidentiary principles (including the rule against hearsay). The appellant submits that this would eliminate the unfairness to an accused arising from a jury being advised that he had previously been convicted notwithstanding a plea of not guilty.
46 Different considerations apply to the two components of the appellant's argument. The first component is concerned only with the question of the admissibility of conviction (after trial) as evidence of the facts constituting the commission of the relevant offence. The second component raises the question of unfairness. In this case, the ambit of the latter issue is confined by the way in which the appeal has been conducted.
Evidence of the facts constituting the prior offence
47 Six general observations usefully precede a consideration of whether evidence of a prior conviction (after trial) is admissible as evidence of the facts constituting commission of the offence in subsequent criminal proceedings between the State and the convicted person.
48 First, consideration of this issue presumes the admissibility of evidence of the facts constituting commission of the relevant offence. Put another way, in this case, ground 2 presupposes the failure of ground 1.
49 Second, the appellant in this case accepts (properly) that if the conviction is obtained on a plea of guilty, the plea can be taken to be an admission of the facts constituting the elements of the offence. Accordingly, evidence of a conviction on a plea of guilty can be led as evidence of an admission against interest by the accused.
50 Third, in this case, the evidence which was rendered admissible by s 31A was the evidence of the prior conduct of the appellant - that is, his previous actions involving dealing in prohibited drugs, which were
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- capable of supporting an inference of a predisposition or propensity to engage in similar conduct at the time of the alleged offences: Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. The appellant's prior convictions were not therefore relevant in themselves, unless they were admissible as evidence of the appellant's prior conduct: PIM v The State of Western Australia [236]. Different considerations might apply in a case in which reliance is placed upon that portion of s 31A which deals with evidence of reputation. In such a case, evidence of the fact of conviction may be admissible as evidence going to reputation.
51 Fourth, s 31A makes no reference to the form in which evidence of the conduct of the accused person may be adduced, and in particular makes no reference to the admissibility of prior convictions as evidence of prior conduct.
52 Fifth, s 47 of the Evidence Act is concerned only with the means by which a prior conviction or acquittal may be established, and is not concerned with the evidentiary effect of the prior conviction or acquittal (see R v P, NJ (No 2) [2007] SASC 135, in relation to the South Australian equivalent of s 47). The general effect of s 47 is to enable evidence of a prior conviction or acquittal to be established without requiring the tender of the original court record or court calendar. Accordingly, neither s 31A, nor s 47 of the Act provide any assistance to the resolution of the question presently under consideration.
53 Sixth, unlike a number of other Australian jurisdictions, the Evidence Act contains no express provision dealing with the evidentiary effect of a prior conviction or acquittal (see for example s 91 and s 92(2) of the Evidence Act 1995 (Cth)).
54 Turning now to the issue of admissibility, in B v The Queen [1992] HCA 68; (1992) 175 CLR 599, Brennan J (Mason CJ and Deane J agreeing) observed that where propensity evidence was admissible, the evidence would 'usually' take the form of evidence of conduct constituting the offences, rather than the fact of conviction (608). In that context, reliance was placed upon R v Shepherd (1980) 71 Cr App R 120. In that case, two landlords faced a charge of harassing their tenant. Evidence was adduced of their prior conviction on a similar charge involving the same tenant, on the basis that it provided evidence of the landlords' intention to harass the tenant. The England and Wales Court of Appeal held that the evidence of the prior conviction was inadmissible for that purpose. They observed that:
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- In so far as the earlier decision in the Magistrates' court is concerned it is similar to evidence of an opinion as to the appellant's intention. As such it is clearly inadmissible (124).
55 The Court of Appeal also observed that evidence of the prior conviction would:
[C]arry the information that in relation to a dispute concerning earlier similar matters the word of the appellants had been rejected and that the word of the tenants had been preferred at least to a substantial degree (123 - 124).
- This observation is relevant to the appellant's second line of argument, which concerns unfairness.
56 The observation made by Brennan J in B v The Queen was obiter, as in that case the evidence of prior convictions was introduced by the accused who admitted his guilt of those offences. The question at issue in the case was the adequacy of the direction given by the trial judge to the jury as to the use which they could make of the admissions by the accused. It is also of some significance that by introducing the proposition with the word 'usually', Brennan J does not appear to have been referring to a principle of law, but rather to a practice which admits of exceptions.
57 It is clear that evidence of the fact of a prior conviction can be adduced in criminal proceedings as evidence of conduct giving rise to the conviction in some circumstances at least. The most obvious is the circumstance in which it is permissible to put evidence of a prior conviction or convictions to an accused person in cross-examination in order to undermine his or her credibility. As Professor Lanham points out in 'Issue Estoppel in the English Criminal Law' (1970) Criminal Law Review 428:
It is not the mere fact of conviction which tends to suggest that the accused should not be believed but the assumption that he is guilty of the crime of which he has been convicted (429).
58 See also Heydon JD, Cross on Evidence (8th Aust ed, 2010) [5195]; Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445, [145].
59 Successive editions of Cross on Evidence have gone further and asserted that:
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- When a previous conviction of the accused is put to him in cross-examination or proved against him, he cannot deny his guilt of the offence for which he was convicted.
- See Cross on Evidence (8th Aust ed, 2010), [5135], and for the older English edition of Cross on Evidence see Lanham above at 429.
60 The learned author of the most recent Australian edition of Cross on Evidence cites the principle of res judicata or cause of action estoppel as the basis for this rule. He observes:
Parties and their privies are, however, estopped from denying the facts on which a judgment was founded when the same question is raised in subsequent proceedings between them. A convicted thief would be unable to deny guilt if that matter should be raised at a trial of the thief for another offence [5180].
61 These observations are directed to issues relating to the incontrovertibility of a prior conviction, at least in proceedings between the State and the person convicted. As such, they do not bear directly upon the issue of the admissibility of the fact of conviction as evidence of the facts constituting the commission of the offence. However, if, as these long-standing dicta suggest, an accused cannot controvert the facts constituting the commission of a prior offence of which he or she was convicted, it would seem that, a fortiori, the fact of conviction would provide evidence of those facts.
62 This case is concerned with the evidentiary significance of a prior conviction in proceedings between the same parties - that is, between the State and the appellant. However, some guidance may be obtained from the line of cases dealing with the evidentiary significance of a conviction in subsequent civil proceedings between the person convicted and a third party.
63 In Hollington v F Hewthorn & Co Ltd [1943] KB 587, the England and Wales Court of Appeal held that evidence of a criminal conviction was not admissible in subsequent civil proceedings as evidence of the facts giving rise to the conviction, essentially on the basis that the previous opinion of the court established nothing more than the opinion of a different court based upon evidence that may be different in ambit from that adduced in the civil proceedings.
64 However, the New Zealand Court of Appeal declined to follow the decision in Hollington in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961. Further, the 15th report of the Law Reform
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- Committee (UK) under the chairmanship of Lord Pearson, described Hollington as a decision that 'offends one's sense of justice'. In Mickelberg v Director of the Perth Mint, this court decided not to follow the decision in Hollington, and held that evidence of a prior conviction was admissible as prima facie evidence of the facts giving rise to the conviction in subsequent civil proceedings between the person convicted and another party. Subsequent decisions of the High Court (such as Carroll and D'Orta-Ekenaike) might cast doubt upon the views expressed in Mickelberg with respect to the controvertibility of the evidence of a prior conviction. However, as I have indicated, it is unnecessary to resolve issues with respect to incontrovertibility in this case. At all events, it is clear that the decision in Mickelberg with respect to the admissibility of a conviction as evidence of the facts giving rise to the conviction has been consistently followed in this jurisdiction - see Roberts; Donnellan v Public Trustee [2007] WASC 213, [27] - [55]; Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86, [57].
65 If, as these decisions establish, at least within Western Australia, evidence of a conviction provides evidence of the facts giving rise to the conviction in subsequent civil proceedings between the accused person and a stranger to the previous criminal proceedings, then, a fortiori, it would seem to follow that such evidence has no less effect in proceedings between precisely the same parties as the parties to the previous criminal proceedings (that is, the State and the accused). In this area, the High Court has deplored the development of principles founded upon 'dividing the litigious world into two classes, one marked "civil" and the other marked "criminal"' - see D'Orta-Ekenaike, [76] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161.
66 Accordingly, notwithstanding the obiter view expressed in B v The Queen, and the decision in Shepherd, the long-established practice with respect to the effect of a prior conviction when put to the accused in cross-examination as to credit, and the principles established in this jurisdiction with respect to the evidentiary significance of a prior conviction in subsequent civil proceedings compel the conclusion that a prior conviction is admissible in criminal proceedings as evidence of the material facts underpinning the elements of the offence the subject of that conviction irrespective of whether the conviction was obtained after trial or on a guilty plea.
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67 In some cases, issues may arise as to the precise identification of the facts evidenced by the conviction. In such cases, the record of the trial will provide the only reliable guide to that issue which will usually be established by the facts admitted for the purposes of sentence (in the case of a guilty plea), or the facts found by the trial judge for the purposes of sentence (in the case of a conviction after trial).
68 As I have noted, the grounds of appeal in this case did not raise any question with respect to the extent to which it is permissible or appropriate for the prosecution to lead evidence to augment the fact of conviction, or to cross-examine the accused on the facts giving rise to the conviction, or as to the extent to which it is open to an accused person to lead evidence which might undermine or impugn the conviction. Resolution of those questions is best left to a case in which they have been squarely raised and issue joined.
Unfairness
69 The second component of the appellant's argument under ground 2 is the proposition that evidence of the appellant's convictions in 1995, after trial, should not have been admitted because they would convey to the jury that the appellant had previously been found guilty after denying guilt, and thereby unfairly undermine his case. However, as I have noted, the proposition is put generically and does not rely upon anything specific or particular to the circumstances of this case, including the evidence led by the prosecution with respect to the conduct giving rise to the convictions, or the cross-examination of the appellant, or the terms in which the trial judge directed the jury as to the use they could make of the evidence, or any alleged failure to adequately warn the jury with respect to the risks associated with such evidence.
70 The position adopted on behalf of the appellant may well have been adopted for sound forensic reasons in the context of the appeal as a whole. However, the generality with which this aspect of the appellant's argument has been put dooms it to failure. When questions of unfairness arise, either in the context of the general duty of a trial judge to ensure a fair trial, or in the particular context in which the risk of an unfair trial must be addressed in determining the admissibility of evidence under s 31A of the Evidence Act, those questions must be resolved according to the particular circumstances of the case. The observations made by the England and Wales Court of Appeal in Shepherd fall well short of establishing an axiomatic principle to the effect that evidence of a prior conviction after trial will necessarily and inevitably result in an
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- unacceptable risk of an unfair trial. Obviously any meaningful assessment of the risk of an unfair trial must depend upon the particular circumstances of the case, including the course of the evidence generally, the nature of the critical issues to be determined at trial, the references made to the prior convictions in the opening and closing addresses by counsel, whether the accused gives evidence and if so, the extent of cross-examination on the prior convictions and, perhaps most critically of all, the directions given by the trial judge to the jury as to the evidentiary significance of the prior convictions and the risks associated with reliance upon those prior convictions.
71 In some circumstances it may be that the risk of unfairness associated with the tender of evidence of a prior conviction after trial is so great that the evidence should be excluded, either in the exercise of the general discretion of a trial judge to exclude evidence where its prejudicial value exceeds its probative value, or pursuant to the specific process required under s 31A of the Evidence Act, which requires a comparison between the probative value of the evidence and the risk of an unfair trial. In other cases, the risk of unfairness might be lessened by eliminating or minimising any reference to the fact that the conviction occurred after trial, or by an appropriate direction to the jury. It cannot be said that in all cases evidence of a prior conviction after trial creates a risk of unfairness so great that the evidence must be excluded. As that was the basis upon which the appellant's case was argued, it must be rejected.
Conclusion
72 For these reasons, leave to appeal on ground 2 should be refused and this appeal should be dismissed.
73 BUSS JA: I agree with the orders proposed by Martin CJ including that the appeal be dismissed. Subject to the following opinions and observations, I agree with his Honour's reasons (with which Mazza JA has already expressed his agreement).
The issues addressed in these reasons
74 The appellant appeals to this court against his conviction on three counts of having in his possession a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
75 These reasons address whether the appellant's earlier convictions in 1995, after trial, in respect of drug offences committed in 1993, were
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- admissible as evidence of the fact of the convictions and the material facts comprising the elements of those offences, notwithstanding that the appellant pleaded not guilty to those offences and was convicted after trial, and that he continued to deny his guilt.
76 These reasons also address whether the fact of the convictions and the material facts comprising the elements of the offences in question, if admissible, are incontrovertible. This issue is raised by particular 2.3 of ground 2 of the appeal (for which leave to appeal has not been granted), which asserts that the admission of the 1995 convictions 'effectively removed the requirement for the jury to resolve for themselves the issue of whether the appellant committed the prior acts'.
The doctrine of res judicata
77 By the doctrine of res judicata, a final judgment on the merits by a competent court or tribunal extinguishes any cause of action which is the subject of the decision. If the cause of action is made out, it merges in the judgment. The cause of action ceases to have an independent existence. If the cause of action is not made out, none of the parties can thereafter maintain another proceeding on the same cause of action. See Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532 (Dixon J); Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466 (Fullagar J); Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 507 - 508 (Deane, Toohey & Gaudron JJ).
78 As Weinberg J observed in Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385:
[R]es judicata can arise only from a final judgment of a competent tribunal given on the merits. It cannot arise from a proceeding that was discontinued, or resolved by way of dismissal for want of prosecution, or non-compliance with court orders. In order to establish res judicata, it must be shown that the cause of action in the later proceeding is identical to that which was litigated in the former proceeding. The identity of the causes of action is determined as a matter of substance rather than form. Res judicata binds only the parties and their privies.
Res judicata was formerly regarded as a rule of evidence but is now generally considered to be a rule of public policy. When the doctrine applies, it constitutes an absolute bar to a subsequent suit for the same cause of action … [T]he correctness of the decision is not relevant. If it is a final decision by a court having jurisdiction as to the same question and between the same parties, it will be binding on them unless and until overturned on appeal [60] - [61].
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Res judicata in criminal proceedings
79 In Wemyss v Hopkins (1875) 10 QB 378, Blackburn J decided that the fact that the appellant had been convicted by justices under one Act of Parliament for what amounted to an assault was a bar to a conviction under another Act of Parliament for the same assault. His Lordship said:
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 … (381)
- See also R v Miles (1890) 24 QBD 423, 430 - 432 (Hawkins J).
80 In Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458, the appellant was charged with two offences, namely carrying a firearm and being in possession of 10 rounds of ammunition. He was acquitted of the charge relating to the possession of ammunition. A retrial was ordered on the charge relating to the carrying of a firearm. At the retrial, the prosecution produced for the first time an unsigned confession in which the appellant apparently admitted carrying a firearm and possessing the ammunition. The confession was admitted into evidence and the appellant was convicted of carrying a firearm. His appeal to the Privy Council was allowed and the conviction was set aside. Lord MacDermott, who delivered the advice of the Board, made these observations about the doctrine of res judicata in criminal proceedings:
The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other (479). (emphasis added)
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81 In Kemp v The King [1951] HCA 39; (1951) 83 CLR 341, the appellant was tried on three counts of indecent assault upon a boy aged 13 years. Each count was alleged to have been committed on a separate occasion. The appellant was acquitted on the first and second counts, but convicted on the third. The conviction was set aside and a new trial ordered. At the new trial, evidence was admitted, in proof of similar acts by the appellant, of the occasions in respect of which he had been acquitted at the original trial. The appellant was convicted. The High Court allowed the appellant's appeal and quashed the conviction. Dixon J, who delivered the judgment of the High Court, said that the decision of the Privy Council in Sambasivam was 'decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered' (342). The juridical basis for this proposition was the doctrine of issue estoppel.
82 In Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437, the appellant was convicted after a trial of having committed rape upon the complainant in July 1976. He admitted that sexual intercourse had occurred, but claimed the complainant had consented. Evidence was admitted at the trial, over objection by defence counsel, that the appellant had been tried in January 1976 on a charge of having committed rape upon the complainant in November 1975, that the complainant had then denied having consented to intercourse and that the appellant had been acquitted. The trial judge instructed the jury that the acquittal on the earlier charge was a neutral fact and no inference should be drawn from it for or against the appellant or the complainant. The High Court allowed the appeal and ordered a new trial.
83 Barwick CJ (Stephen & Mason JJ agreeing) held in Garrett that the complainant's evidence about the events of November 1975 should not have been admitted and, further, that the trial judge had misdirected the jury upon the effect of the previous acquittal. His Honour said, relevantly to the doctrine of res judicata:
[I]n my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself.
The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge
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- because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds (445). (emphasis added)
84 In R v Storey [1978] HCA 39; (1978) 140 CLR 364, the accused were acquitted at a trial on a charge of forcible abduction of the complainant. The accused were then charged with the rape of the complainant. At the trial of the charge of rape, evidence was admitted which tended to show that the accused had taken the complainant away from a railway station by force, against her will, and with the intention of raping her. The accused admitted having had sexual intercourse with the complainant but alleged that she had consented. They were convicted. The Court of Criminal Appeal of Victoria quashed the conviction and ordered a new trial on the ground that, by the evidence in question, the Crown had sought, in effect, to establish that the accused were guilty of the charge of forcible abduction of which they had previously been acquitted. A majority of the High Court (Stephen, Mason, Jacobs & Aickin JJ; Barwick CJ, Gibbs & Murphy JJ dissenting) dismissed the Crown's appeal.
85 The consensus in Storey was that evidence which tends to show that an accused is guilty of an offence, of which he has previously been acquitted, may be admitted in a subsequent trial of the accused if it is otherwise relevant, and if the jury can be and is directed not to interpret the evidence in such a way as to deny the acquittal. See Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 492 [32] (Gleeson CJ, Heydon & Crennan JJ).
86 There was a division within the majority in Storey as to the admissibility of the evidence in question in that case. Stephen, Mason and Aickin JJ decided that the evidence was admissible but that there had been a misdirection by the trial judge. Jacobs J decided that the evidence was inadmissible.
87 A differently constituted minority in Storey (Barwick CJ, Gibbs & Mason JJ) held that the doctrine of issue estoppel is not applicable to criminal proceedings. Mason J referred to the decisions in Sambasivam and Garrett, and said:
Both these decisionsestablish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is
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- sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognized fully and without qualification for all purposes in criminal proceedings (396). (emphasis added)
88 In Storey, Barwick CJ referred to the remarks of Lord MacDermott in Sambasivam and said that they 'sufficiently established the basic principle', but his Honour added that he would take 'the reference to res judicata to be confined to the fact of acquittal and not to extend to any fact supposedly found or denied in arriving at that verdict' (373). (emphasis added)
89 Res judicata, in the context of criminal proceedings, is a substantive common law principle, and not merely a rule of evidence. See R v Carne (1997) 94 A Crim R 249, 258 (Fitzgerald P).
90 In Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, the appellant was charged in 1988 with a number of offences of armed robbery. Before he was charged, he participated in four records of interview with police in which he allegedly made admissions. At his trial in 1989 on an indictment containing four counts of armed robbery, the Crown sought to rely on three of the records. The first and second records contained admissions as to counts 1 and 2 and the fourth record contained admissions as to counts 3 and 4. The trial judge rejected the tender of three of the records on the ground that they were not made voluntarily. The appellant was acquitted on counts 1 and 2 and convicted on counts 3 and 4.
91 In 1992, the appellant in Rogers was indicted on a further eight counts of armed robbery. The Crown proposed to rely on alleged admissions in the third and fourth records of interview to support its case on seven of the counts. After the 1992 indictment was presented, the appellant applied for a stay of proceedings. The stay was refused by a judge of the District Court of New South Wales and his decision was upheld by the Court of Criminal Appeal. The High Court, by a majority (Mason CJ, Deane & Gaudron JJ; Brennan & McHugh JJ dissenting) allowed the appellant's appeal on the ground that the course adopted by the Crown amounted to an abuse of process.
92 The majority in Rogers decided that the doctrine of issue estoppel is not applicable in criminal proceedings. Mason CJ said:
I adhere to the view which I expressed in Reg v Storey ((1978) 140 CLR 364, at pp 400 - 401) that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons
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- which compel acceptance of that view are set out in the judgments of Barwick CJ, Gibbs J and myself in that case ((1978) 140 CLR, at pp 371 - 374, per Barwick CJ; pp 379 - 389, per Gibbs J; pp 400 - 401, per Mason J). The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions (England: Reg v Humphrys, [1977] AC 1; Hunter v Chief Constable of the West Midlands Police, [1982] AC 529; New Zealand: Reg v Davis, [1982] 1 NZLR 584; Bryant v Collector of Customs, [1984] 1 NZLR 280; but cf Duhamel v The Queen, [1984] 2 SCR 555; (1984) 14 DLR (4th) 92 (254 - 255). (emphasis added)
93 In Rogers, Deane and Gaudron JJ referred to the doctrines of issue estoppel and res judicata, and then adopted another fundamental principle to the effect that decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct (273). Their Honours added that this principle 'is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice' (273).
94 The decision in Sambasivam, and the later decisions of the High Court, were examined in detail by the Court of Appeal of Victoria in R v Young [1998] 1 VR 402 (Ormiston & Charles JJA & Vincent AJA) and, again, in R v Pennant [1998] 2 VR 453 (Ormiston, Phillips & Hayne JJA). In Young, the court said it was 'fair to say' that the principles in Sambasivam have been accepted by the High Court on the many occasions to which it has been referred (418). Their Honours mentioned Rogers and the reasons of Deane and Gaudron JJ (278). In Pennant, the court said there was no doubt that, consistently throughout both Storey and Rogers, Sambasivam is referred to with approval (462). In Young, the court said that '[t]ime and again' Kemp has been cited, 'even in Storey's case and Roger's case, but with never a suggestion of disapproval of [the] basic proposition' enunciated by Dixon J on behalf of the court, 'except as to its jurisprudential basis, namely issue estoppel, which was said to form the basis of the judgment' (424).
95 In R v Carroll [2002] HCA 55; (2002) 213 CLR 635, the respondent was tried in 1985 for murder. He gave sworn evidence denying that he had killed the victim. The respondent was convicted. The Court of Criminal Appeal of Queensland quashed the conviction and entered a verdict of acquittal.
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96 In 1999, the respondent in Carroll was charged with perjury, the alleged perjury being his sworn evidence at the murder trial that he had not killed the victim. He applied for a stay of the proceedings on the ground that they were an abuse of process. The application was dismissed. The respondent was tried on the perjury count and was convicted. The Court of Appeal of Queensland allowed the respondent's appeal against his conviction. It held that the trial should have been stayed as an abuse of process. The High Court dismissed the Crown's appeal. It held that the perjury indictment was an abuse of process in that the Crown had sought to controvert the acquittal on the murder charge. The perjury count raised the same ultimate issue as that which had been raised in the trial of the murder charge.
97 Gleeson CJ and Hayne J said:
The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so [45]. (emphasis added)
98 Their Honours provided guidance as to the approach to be adopted in determining whether a later charge controverts an earlier acquittal. The focus is upon the elements of each offence, rather than upon the evidence given at the earlier trial and the evidence proposed to be adduced at the later trial:
[W]here it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.
To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings (United Kingdom, Law Commission, Double Jeopardy and Prosecution Appeals (2001), Cm 5048, par 4.2) and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.
To pursue what is thought to be the objectively correct outcome of criminal proceedings is inconsistent with finality [47] - [49].
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99 Gleeson CJ and Hayne J then noted that the finality of a verdict of acquittal 'does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision' [50]. Their Honours elaborated:
There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z ([2000] 2 AC 483), R v Arp ([1998] 3 SCR 339) and R v Degnan ([2001] 1 NZLR 280) are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial [50]. (emphasis added)
100 Gaudron and Gummow JJ made these observations about what they described as 'the interests at stake' in Carroll and cases of its kind:
The interests at stake in a case such as the present were discussed in Rogers v The Queen ((1994) 181 CLR 251 at 273 - 274) and in Pearce v The Queen ((1998) 194 CLR 610 at 614 - 615 [9]-[15], 625 - 626 [53] - [56], 636 - 637 [89] - [91]). They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive (expressed in the maxim interest reipublicae ut sit finis litium). Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct (expressed in the maxim res judicata pro veritate accipitur). This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute (cf Abebe v The Commonwealth (1999) 197 CLR 510). Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause (expressed in the maxim nemo debet bis vexari pro una et eadem causa). Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature (expressed in the maxim transit in rem judicatam) [86].
101 A little later, their Honours noted their agreement with Gleeson CJ and Hayne J in relation to the decisions in Rogers and Garrett. Like Gleeson CJ and Hayne J, their Honours said:
Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition [93].
102 In R v Arp [1998] 3 SCR 339, Cory J, who delivered the judgment of the Supreme Court of Canada, held, in essence, that evidence relating to an earlier criminal charge resulting in an acquittal may be adduced by the
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- prosecution on the trial of a later criminal charge if the evidence has relevance to the later charge quite independently of any question whether the accused was guilty or not guilty of the earlier charge [78].
103 In R v Z [2000] 2 AC 483, the appellant was charged with rape. He alleged that the complainant had consented, alternatively that he honestly and reasonably believed she had consented. The prosecution proposed to adduce evidence from four women who had previously made complaints of rape against the appellant. Each of these complaints had been the subject of a separate trial. The appellant was convicted in one case but acquitted in the other three. The evidence which had resulted in the previous acquittals qualified as similar fact evidence on common law principles. The House of Lords held that the evidence was admissible. Lord Hope of Craighead (Lord Browne-Wilkinson & Lord Millett agreeing) said that the principle enunciated by Lord MacDermott in Sambasivam 'is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial' (487). (emphasis added)
104 In Washer, Kirby J suggested that the House of Lords in R v Z had 'departed from, or qualified, the Sambasivam doctrine' [80]. His Honour then added:
Substantially, the effect of the decision in Z has been to confine the earlier principle to cases where the accused is put on trial again for the offence of which an acquittal was earlier entered or is in some way to be punished again for that same offence (see [2000] 2 AC 483 at 487 per Lord Hope of Craighead, at 499 per Lord Hutton, 510 per Lord Hobhouse of Woodborough). The position adopted in the decision in Z appears to have been followed in New Zealand (R v Degnan [2001] 1 NZLR 280; cf R v Gee [2001] 3 NZLR 729) at a time when the courts of that country were still subject to appeal to the Privy Council [80].
105 Gleeson CJ, Heydon and Crennan JJ said in Washer that it was unnecessary, in that case, to consider whether the approach of the House of Lords in R v Z was different from the approach of the High Court in cases such as Garrett, Storey, Rogers or Carroll [37].
106 In R v Degnan [2001] 1 NZLR 280, the appellant was charged with indecent assault on a male. At the trial, the Crown sought to adduce evidence from two other men to the effect that they had been victims of similar assaults by the appellant. Previously, the appellant had been
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- charged in relation to these incidents. In one case he had been acquitted and in the other the proceedings had been stayed after two juries had failed to return verdicts. It was not in dispute that the evidence in question was admissible under ordinary legal principles governing the admission of similar fact evidence. However, the appellant argued either that the evidence was not admissible or that it should have been excluded in the trial judge's discretion. The Court of Appeal of New Zealand held, relevantly, that evidence which is otherwise admissible under the principles governing the admission of similar fact evidence is not rendered inadmissible by reason of the fact that a previous trial based on that evidence resulted in an acquittal or a stay of proceedings [37].
107 In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, the doctrine of finality was referred to in the course of the High Court deciding that at common law an advocate is immune from suit, whether for negligence or otherwise in the conduct of a case in court or for work done out of court which leads to a decision affecting the conduct of the case in court. Gleeson CJ, Gummow, Hayne and Heydon JJ said that a central and pervading tenet of the judicial system is that 'controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances' [34]. Their Honours added that that tenet finds reflection in, relevantly, the doctrines of res judicata and issue estoppel [34].
108 Little need be said about Mickelberg v Director of the Perth Mint [1986] WAR 365. This case was concerned with the admissibility in civil proceedings of evidence of a previous criminal conviction. The Full Court of the Supreme Court of Western Australia decided not to follow Hollington v F Hewthorn & Co Ltd [1943] KB 587. Res judicata was not relevant in Mickelberg. It was not pleaded (383). The parties to the civil proceedings were different from the parties to the criminal proceedings. It is not apparent from the reasons in Mickelberg whether the respondent was a privy of the Crown in right of the State of Western Australia. The reasons in Mickelberg did not refer to such cases as Sambasivam, Kemp, Garrett or Storey.
Res judicata: the facts implicit in a verdict of guilty after the trial of a criminal charge or in a plea of guilty to a criminal charge
109 Where an accused has pleaded not guilty to a criminal charge and has been convicted after a trial, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts. Usually, the facts implied by the
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- verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).
110 Similarly, a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381- 382, 386 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill (312).
Res judicata: the admissibility in a criminal trial of a previous conviction of the accused
111 In Heydon JD, Cross on Evidence, (8th Aust ed, 2010), [5200] - [5215], the author discusses, in a chapter titled Estoppels, the admissibility of a person's previous criminal conviction in subsequent civil or criminal cases in which he or she is a party. It is stated that '[a]lthough there is very little authority on the point, it seems that the principle [applicable in civil cases also] applies to criminal cases' [5210]. The author then states:
As between the Crown and the accused, the previous conviction estops the accused from denying guilt of the offence, but the conviction of a third party is generally inadmissible as evidence of the facts on which it was based [5210]. (emphasis added)
112 Statements to this effect also appear elsewhere in Cross on Evidence. In particular:
(a) It is asserted that when a previous conviction of the accused is put to him or her in cross-examination or proved against the accused in a criminal trial, the accused cannot deny guilt of the offence for which he or she was convicted [5135]. The author elaborates on this point in footnote 176:
This view of the effect of convictions as between the Crown and the accused is challenged in 'Issue Estoppel in the English Criminal Law' an interesting article by D J Lanham in [1970] CrimLR 428. Professor Lanham's contention is that the conviction is no more than prima facie evidence of guilt. The view taken in this book is the logical consequence of the civil cases on the effect of judgments inter partes, but it must be admitted that it is no more supported by convincing authority than Professor Lanham's view
- although it is the view taken in para 99 of the 11th Report of the Criminal Law Revision Committee (Eng).
- (b) A person convicted of theft 'would be unable to deny guilt if that matter should be raised at a trial of the thief for another offence' [5180].
113 The Eleventh Report, Evidence (General), June 1972, of the Criminal Law Revision Committee (Eng) states in par 99:
Where proof of a conviction is admissible, this will be conclusive evidence that the accused committed the offence to which the conviction relates (though not of the details of the offence). There is very little direct authority on this, but we have no doubt that it follows from the rule that a party is estopped from denying the conclusiveness of a judicial decision on an issue in proceedings between the same parties (in this case, the Crown and the accused); and this proposition seems to be indirectly supported by Bynoe v Bank of England ([1902] 1 KB 467). In practice, where evidence of a conviction is admissible under certain statutes (See paragraph 101(vi)), it is treated as conclusive and no difficulty or injustice is said to result. We gave a great deal of thought to whether the accused should be enabled to dispute the correctness of a conviction admissible under our proposals, but we decided that this would be impracticable. For it might become the practice to try to obstruct proceedings by disputing the correctness of convictions of which evidence was admissible, and the result might be to cause chaos in criminal trials. The great majority of those whom we consulted in 1968 (paragraph 9) were firmly against allowing this. (emphasis added)
Res judicata: the admissibility in a criminal trial of admissions against interest made by or on behalf of the accused in previous criminal proceedings
114 In R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384, the Court of Appeal of Queensland (Thomas JA, McMurdo P & Helman J agreeing) held that evidence of statements made in a previous criminal proceeding by defence counsel, in the presence of the accused, is admissible in a subsequent criminal proceeding against that accused, on this basis:
Counsel make statements on behalf of the offender on such occasions with the offender present. If relevant statements of this kind were not at least prima facie admissible against the offender in subsequent proceedings because he did not make them himself, criminal justice would be very difficult to administer in the courts. In my view the statements in the transcript of proceedings may be regarded as statements against interest made by a duly authorised agent, and also possibly as evidence of the appellant's assent by silence. The truth of such admissions could be
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- contradicted by evidence that they were contrary to instructions or that they were otherwise erroneous. However, in the absence of any reason to think that the statements in question were unreliable there is no proper basis upon which the learned trial judge ought to have excluded such evidence. The evidence served the relevant purpose of providing a fuller picture of the appellant's conduct upon the occasion in question [37].
115 In B v The Queen [1992] HCA 68; (1992) 175 CLR 599, the appellant was tried for sexual offences against his daughter which were alleged to have been committed between 1985 and 1988. He denied the charges but admitted that in 1984 he had been convicted of similar offences against the daughter. The prosecutor informed the trial judge that he did not intend to adduce evidence of the prior convictions as similar fact evidence. The appellant gave evidence to the effect that from about 1986 or 1987 the daughter had been very difficult to control. When he attempted to control her she would assert that he was still 'doing it' and threaten to call the police. His defence at trial was in effect that he was the victim of fabricated allegations by an uncontrollable daughter who was exploiting his past misconduct. The appellant was convicted. The High Court held that the trial judge had misdirected the jury. It allowed the appeal, quashed the convictions and ordered a new trial.
116 Brennan J said, in the context of the common law relating to similar fact evidence, that evidence of the accused having committed other offences may be admitted 'if the evidence is relevant to a fact in issue and if its probative force is sufficiently high to outweigh the inevitable prejudice flowing from the nature of the evidence' (608) (footnotes omitted). His Honour noted that '[u]sually, evidence of the conduct constituting the offences rather than the fact of conviction' is admitted as evidence of the other offences committed by the accused (footnote 34, 608) (emphasis added). His Honour cited R v Shepherd (1980) 71 Cr App R 120, 123 - 124.
117 In Shepherd, the appellants, as landlords, were charged with harassing a tenant. At the trial, similar fact evidence was given by the same tenant, who claimed previously to have been harassed by the appellants. The appellants challenged the reliability of this evidence. The prosecution then adduced evidence of the appellants' previous conviction in February 1977 for a similar offence involving the same tenant. The object of adducing evidence of the previous conviction was to prove the appellants' intention to harass in the case being tried. On appeal, it was held that the evidence of the previous conviction was irrelevant and had been wrongly admitted. The conviction of each of the appellants was quashed.
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118 Eveleigh LJ (Bristow & McNeill JJ agreeing) said:
It may well be that evidence of the facts which resulted in the conviction of February 1977 was relevant evidence for a number of purposes. They might reveal animosity by the landlord towards his tenant; they might indicate that acts were performed deliberately if it should be suggested that they were performed accidentally; they might rebut a defence of mistake, and they might provide material from which the jury could infer that the ultimate intention was to oust the tenant (123).
119 However, Eveleigh LJ held that the fact of the previous conviction was irrelevant and inadmissible for the purpose of proving the appellants' intention in relation to the offence being tried. His Lordship explained:
Knowledge of the previous convictions would inevitably convey to the jury the fact that another court had arrived at the conclusion that on similar facts the inference was that the appellants intended to oust the tenants. The knowledge of the conviction would also carry the information that in relation to a dispute concerning earlier similar matters the word of the appellants had been rejected and that the word of the tenants had been preferred at least to a substantial degree.
A case of harassment almost inevitably involves a series of acts spreading over a period. The more persistent or repetitive the conduct the more readily may an inference be drawn. When the conduct at an early stage is seen to disclose an intention to oust the tenant the more clearly will subsequent similar conduct be seen to have been carried out for the same purpose. The inference however is one for the jury and for no one else. In so far as the earlier decision in the magistrates' court is concerned it is similar to evidence of an opinion as to the appellants' intention. As such it is clearly inadmissible. There can be no question of issue estoppel in a criminal case. (See DPP v Humphrys (1976) 63 Cr App R 95; [1977] AC 1). We therefore are of the opinion that the fact of the conviction was irrelevant and inadmissible for the purpose of proving the offence.
…
In fact the learned judge told the jury that the appellants disputed the finding of the magistrates' court and that it was for them to make up their own minds as to the facts of the case. We have considerable sympathy with the learned judge because there was no argument upon this matter addressed to her. Her summing-up was most fair and thorough. However we are of the opinion that the conviction was introduced into this case so prominently when it was in law inadmissible that the irregularity cannot be said to have been cured in the summing-up (123 - 124). (emphasis added)
120 Three observations may be made about the decision in Shepherd. First, the prosecution sought to adduce evidence of the fact of the previous conviction for the purpose of proving the appellants' intention in relation
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- to the later offence for which they were being tried. Secondly, the court held that evidence of 'the facts' which resulted in the previous conviction 'may well' have been admissible for a number of purposes, including the purpose of inferring the appellants' intention in relation to the later offence for which they were being tried, but evidence of the fact of the previous conviction was not admissible in that it was merely the opinion of the Magistrates Court as to the appellants' intention in relation to the previous case. Thirdly, the court noted that the doctrine of issue estoppel does not apply in criminal cases. However, the doctrine of res judicata was not raised in Shepherd and was not referred to in the reasons of the court.
121 Brennan J's remarks in B v The Queen that 'usually,evidence of the conduct constituting the offences rather than the fact of conviction' is admitted as evidence of the other offences committed by the accused (footnote 34, 608) (emphasis added) reflect the limited evidentiary value of the fact of a previous conviction as similar fact evidence. For example, mere proof of a previous conviction will not, of itself, ordinarily result in evidence being put before the jury of any striking similarity or hallmark attending the commission of the offences in question. Usually, it is the broader facts and circumstances which give colour to and are probative of the accused's alleged propensity.
The present case: the admissibility of the fact of the appellant's convictions in 1995, after trial, in respect of the offences committed in 1993
122 None of the High Court cases to which I have referred have considered whether an accused's earlier conviction for an offence, after trial, is admissible at a later trial as evidence of the fact of the conviction and the material facts comprising the elements of the earlier offence, notwithstanding that the accused pleaded not guilty to the earlier offence and was convicted after trial, and that he or she continues to deny his or her guilt.
123 The High Court cases were concerned with acquittals. An accused is entitled to an acquittal if the State or the Crown (as the case may be) has not proved beyond reasonable doubt each of the elements of the offence. If a verdict of acquittal is entered, the particular element or elements of the offence in respect of which the jury was not satisfied beyond reasonable doubt will be unknown. By contrast, if a verdict of conviction is entered, the jury must have been persuaded that the prosecution had proved beyond reasonable doubt each element of the offence.
124 I have formulated a number of propositions that, in my opinion, are relevant in determining whether the appellant's convictions in 1995, after
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- trial, in respect of the drug offences committed in 1993, were admissible as evidence of the fact of the convictions and the material facts comprising the elements of those offences, notwithstanding that the appellant pleaded not guilty to those offences and was convicted after trial, and that he continued to deny his guilt.
125 These propositions have been formulated by analogy from the legal principles enunciated in the High Court authorities and the legal writings which I have discussed.
126 First, the doctrine of res judicata applies in criminal proceedings.
127 Secondly, res judicata is applicable to a judgment of acquittal and a judgment of conviction entered by a court of competent jurisdiction after a plea of guilty or a trial.
128 Thirdly, any such judgment of acquittal or conviction binds the parties to the criminal proceedings in which the judgment was entered; that is, the accused and the State or the Crown (as the case may be).
129 Fourthly, res judicata requires that, as between the accused and the State or the Crown (as the case may be), the judgment of acquittal or conviction is incontrovertible unless and until it has been set aside or quashed by a court of competent jurisdiction.
130 Fifthly, in the case of a judgment of conviction, the matters which are incontrovertible between the accused and the State or the Crown (as the case may be) are the fact of the conviction and the material facts comprising the elements of the offence the subject of the conviction.
131 The fact of the conviction may be proved by the mechanism provided for under s 47 of the Evidence Act 1906 (WA).
132 The material facts comprising the elements of the offence the subject of the conviction may be proved by tendering the relevant part of the record of the earlier proceedings. Proof of the fact of the conviction may also constitute some evidence of those material facts.
133 Sixthly, if any other facts or circumstances relating to the previous conviction (beyond or apart from the fact of the conviction and the material facts comprising the elements of the offence) are admissible in evidence at a later criminal trial (for example, as 'propensity evidence' under s 31A of the Evidence Act), then those facts or circumstances must be proved in the ordinary way; for example, by calling oral evidence from
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- witnesses who are able to give relevant direct or circumstantial evidence. Such other facts or circumstances are not incontrovertible.
134 I am therefore of the opinion that, in the present case, the appellant's convictions in 1995, after trial, in respect of the drug offences committed in 1993, were admissible as evidence of the fact of the convictions and the material facts comprising the elements of those offences, notwithstanding that the appellant pleaded not guilty to those offences and was convicted after trial, and that he continued to deny his guilt.
135 At the trial in which the appellant was convicted of the current offences, and from which he has brought this appeal, the appellant was not entitled to adduce evidence for the purpose of controverting, or otherwise contesting the correctness of, the fact of his convictions in 1995 or the material facts comprising the elements of those offences. It was not for the jury (as alleged in particular 2.3 of ground 2 of the appeal) to satisfy themselves that the appellant had committed the acts the subject of those material facts. The appellant was, however, entitled to contest any other evidence properly adduced by the State of any other facts or circumstances relating to the previous convictions (beyond or apart from the fact of the convictions and the material facts comprising the elements of the offences).
136 Section 31A of the Evidence Act is concerned with admissibility.
137 Section 31A does not refer to the form in which evidence may be adduced as to the conduct of the accused that is allegedly 'propensity evidence' or 'relationship evidence'. Proof of the appellant's convictions in 1995 was 'evidence of the conduct of [the appellant]', within the definition of 'propensity evidence' in s 31A(1), in that the previous convictions were evidence of the appellant having committed those offences including, at least to some extent, the material facts comprising the elements of those offences.
138 Also, s 31A does not deal with the terms of any directions which a trial judge may or must give to the jury in relation to 'propensity evidence' or 'relationship evidence', as defined in s 31A(1). In the present case, counsel for the appellant, at the hearing before this court, repeatedly disavowed any challenge to the adequacy or correctness of the trial judge's directions to the jury in relation to the previous convictions.
139 MAZZA JA: I agree with Martin CJ.
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