2. Appeal treated as instituted and heard instanter and dismissed.
On appeal from the Supreme Court of Queensland
Representation:
M J Byrne QC for the applicant (instructed by the Director of Public Prosecutions (Queensland))
M J Griffin SC with P J Davis for the respondent (instructed by Legal Aid Office (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Carroll
Criminal law – Perjury – Accused at murder trial denies in evidence that he killed the deceased – Accused acquitted of murder and subsequently indicted for perjury in relation to sworn statement – Whether perjury charge undermined accused's acquittal of earlier charge of murder – Whether perjury charge infringed common law rule against "double jeopardy".
Criminal law – Double jeopardy – Res judicata – Issue estoppel – Autrefois acquit – Preclusion.
Practice and procedure – Power of court to stay indictments for abuse of process – Whether perjury indictment should have been stayed as an abuse of process.
Criminal Code (Q), ss 17, 123, 584, 592A, 598, 602, 631. Evidence Act 1977 (Q), s 8.
Words and phrases – "Double jeopardy".
GLEESON CJ AND HAYNE J. In 1985, the respondent gave evidence on oath, at his trial for the murder of Deidre Maree Kennedy, denying that he had killed her. Despite his denial, the jury returned a verdict of guilty. On appeal, the Court of Criminal Appeal of Queensland concluded that, on the evidence led at trial, it was not open to a properly instructed jury to conclude beyond reasonable doubt that the respondent was guilty. Accordingly, the Court ordered that the conviction be quashed and directed that a verdict of acquittal be entered[1].
[1]Carroll (1985) 19 A Crim R 410.
More than 14 years after the respondent's trial for murder, he was indicted for perjury[2]. He was charged that "in a judicial proceeding [namely, his trial for murder, he] knowingly gave false testimony to the effect that he … did not kill … Deidre Kennedy, and the false testimony touched a matter which was material to a question then depending in [his trial for murder]". On his trial for perjury, the jury returned a verdict of guilty. On appeal to the Court of Appeal of Queensland, that Court concluded that the trial should have been stayed as an abuse of process and that, in any event, the verdict returned by the jury was unsafe and unsatisfactory[3]. The Court ordered that the respondent's conviction for perjury be quashed and a verdict of acquittal be entered.
The prosecution seeks special leave to appeal from those orders, seeking to contend…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Carroll [2002] HCA 55
Case
[2002] HCA 55
Decision Date
CaseChat Overview and Summary
The case of *R v Carroll* involved an appeal by the Crown to the High Court of Australia against a decision of the Queensland Court of Appeal. The dispute concerned the prosecution of the respondent, Carroll, for perjury. Carroll had previously been tried for murder, where the sole issue was whether he had killed the deceased. He testified under oath that he had not, was convicted of murder, but this conviction was subsequently quashed on appeal and an acquittal entered. The Crown then indicted Carroll for perjury based on his denial of killing the deceased at the murder trial.
The central legal issues before the High Court were whether a charge of perjury could be sustained when the factual determination required for a conviction on that charge would necessarily contradict a prior acquittal on a murder charge, and whether such a prosecution constituted an abuse of process infringing the common law rule against "double jeopardy". The Court was also required to consider whether the common law principles of *res judicata* and issue estoppel, or the statutory provisions relating to double jeopardy, precluded the perjury indictment.
The High Court, comprising Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, determined that the perjury indictment should have been stayed as an abuse of process. The Court reasoned that the prosecution's case on the perjury charge inevitably sought to controvert the earlier acquittal on the murder charge. This would undermine the finality of judicial decisions and contravene the fundamental principle of double jeopardy, which prevents an individual from being tried twice for the same offence and ensures that acquittals are conclusive. The Court noted that while finality of an acquittal does not always prevent subsequent proceedings that might incidentally cast doubt on an earlier decision, in this instance, the perjury charge directly re-litigated the very fact that had been determined in favour of the accused at the murder trial.
Special leave to appeal was granted, but the appeal was dismissed. The High Court agreed with the Court of Appeal's conclusion that the perjury indictment should have been stayed as an abuse of process, as the prosecution was attempting to relitigate an issue already decided in Carroll's favour. The Court did not need to consider the Court of Appeal's alternative finding that the verdict was unsafe and unsatisfactory due to insufficient evidence.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter and dismissed.
Background
Background to the litigation
The Crown now seeks special leave to appeal against the orders of the Court of Appeal.The material facts At the trial for murder, the only issue was whether Carroll was the person who had killed Deidre Kennedy. No other issue such as intention, accident, provocation, self-defence, insanity or manslaughter was involved. In the course of giving evidence in support of his plea of Not Guilty, Carroll was asked, "Did you kill Deidre Kennedy?" He answered "I did not." The jury disbelieved him and convicted him of murder, that is to say, convicted him of unlawfully killing Deidre Kennedy. But the Court of Criminal Appeal of the Supreme Court of Queensland directed that a verdict of acquittal be substituted for the conviction of murder. Thus, the effect of the judgment of the Court of Criminal Appeal is that Carroll was not guilty of murdering Deidre Kennedy. At the trial for perjury, the central issue once again was whether the accused had killed Deidre Kennedy. That is because the Crown case on the perjury charge was that Carroll had killed her and his sworn denial at the murder trial necessarily meant that he had lied on oath at that trial and was guilty of perjury. Muir J instructed the jury:"The only real issue is whether he told a lie when in that trial he said he did not kill Deidre Kennedy. If he did kill Deidre Kennedy, you may think it plain that that was something well-known to him. If you conclude that it is not established beyond reasonable doubt that he did kill Deidre Kennedy, it follows that it has not been proved beyond reasonable doubt that the accused gave false testimony and the verdict must be not guilty." Thus, the evidence supporting the charge of perjury put in issue the very fact that was in issue on the charge of murder, a charge of which Carroll was acquitted. By finding that he was guilty of perjury, the jury's verdict necessarily proved that he had murdered Deidre Kennedy. It contradicted the acquittal of Carroll in respect of the charge of murdering her. So the issue is whether it was open to the Crown to charge Carroll with perjury when the resultant verdict on the perjury charge necessarily contradicted − or at all events had a tendency to undermine − the acquittal of the accused on the charge of murder. I do not think that there is any doubt that this was a course that the common law does not tolerate. Nor is that position affected by reason of the enactment of the Criminal Code defining the crime of perjury and declaring the circumstances in which a plea of double jeopardy may be pleaded. Double jeopardy It is a fundamental rule of the criminal law "that no man is to be brought into jeopardy of his life, more than once, for the same offence"[151]. If the prosecution attempts to do so, the accused may plead that he has already been convicted (autrefois convict) or acquitted (autrefois acquit) of the same matter. The rule is an aspect or application of the principle of double jeopardy whose "main rationale ... is that it prevents the unwarranted harassment of the accused by multiple prosecutions"[152]. Policy considerations that go to the heart of the administration of justice and the retention of public confidence in the justice system reinforce this rationale. Judicial determinations need to be final, binding and conclusive[153] if the determinations of courts are to retain public confidence[154]. Consequently, the decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct[155]. As Lord Halsbury LC said in Reichel v Magrath[156], "it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again." In addition, the double jeopardy principle "conserves judicial resources and court facilities"[157]. [151]Blackstone, Commentaries, (1769) (1966 reprint), bk 4, c 26 at 329.[152]Friedland, Double Jeopardy (1969) at 3-4. cf Rogers v The Queen (1994) 181 CLR 251 at 273.[153]Rogers v The Queen (1994) 181 CLR 251 at 273.[154]Connelly v Director of Public Prosecutions [1964] AC 1254 at 1353.[155]Rogers v The Queen (1994) 181 CLR 251 at 273.[156](1889) 14 App Cas 665 at 668.[157]Friedland, Double Jeopardy (1969) at 4.
Evidence
Evidence Before The Court
That was this case. Section 123 of the Criminal Code, on its proper construction, did not support the indictment for perjury which was brought in the present case."Fraud" and "fresh evidence" In submissions to this Court, the applicant fixed upon observations in some authorities[135] which may suggest that it is permissible to litigate afresh matters determined in earlier criminal proceedings where those proceedings were affected by "fraud" or where there is "fresh evidence". It was submitted that perjury constitutes a species of fraud upon the court and that, if there be "significant" or "substantial" fresh evidence, principles of "double jeopardy" do not deny the competency of an indictment for perjury committed in earlier criminal proceedings which resulted in an acquittal.[135]Rogers v The Queen (1994) 181 CLR 251 at 256‑257; R v Storey (1978) 140 CLR 364 at 409. The reasoning in R v El‑Zarw[136] may be consistent with these propositions. The accused was charged with perjury in that at his trial for the murder of his wife he falsely swore to the effect that he had not killed her. The resemblance to the perjury count in the present case will be apparent. A demurrer to the indictment, pursuant to ss 598 and 605 of the Criminal Code, on the ground that it disclosed no offence cognisable by the court, had been overruled by the trial judge[137].[136][1994] 2 Qd R 67.[137][1994] 2 Qd R 67 at 79. The accused was convicted of perjury. His appeal succeeded but not on the ground that the demurrer should have been allowed or that there had been some other wrong decision of any question of law, as provided by s 668E(1) of the Criminal Code. Rather, the conviction was set aside as "unsafe and unsatisfactory"[138]. This expression is not used in s 668E[139] but indicates that, within the meaning of s 668E, there is a "miscarriage of justice" if a verdict is unreasonable or not supportable on the evidence or is attended by a real doubt as to whether it is "safe or just"[140].[138][1994] 2 Qd R 67 at 77, 85.[139]Jones v The Queen (1997) 191 CLR 439 at 450.[140]Jones v The Queen (1997) 191 CLR 439 at 450. The outcome in El‑Zarw involved the recasting of a substantive legal deficiency, to which the procedures in ss 598 and 605 are directed, into an exercise of determining whether the proceedings were an abuse of process. The actual outcome may be supported on the ground that the demurrer should have been allowed. However, the reasoning adopted by the Court of Criminal Appeal appears to have been[141] that the verdict was "unsafe and unsatisfactory" because there was insufficient additional evidence to that at the first trial and so no addition of "a new dimension" to the Crown case[142]. Rather, it was said, the Crown case on perjury involved "simply going behind the verdict of acquittal", something "not permissible under the double jeopardy rule"[143].[141][1994] 2 Qd R 67 at 76‑77, 79‑80, 84‑85.[142][1994] 2 Qd R 67 at 79.[143][1994] 2 Qd R 67 at 77.
Decision
Reasons for decision
GLEESON CJ
HAYNE J
GAUDRON AND GUMMOW JJ
HUGH J
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. 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[48], R v Arp[49] and R v Degnan[50] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.[48][2000] 2 AC 483.[49][1998] 3 SCR 339.[50][2001] 1 NZLR 280.Conclusion Proceedings on the indictment for perjury should have been stayed, as the Court of Appeal concluded. The prosecution inevitably sought to controvert the earlier acquittal on the charge of murder. The Court of Appeal also concluded, after an examination of the evidence at the perjury trial, that the evidence was so lacking in weight and cogency that the jury should have acquitted the respondent. The Court has not heard argument on that aspect of the matter. In view of the conclusion expressed above the question does not arise for decision. Special leave to appeal should be granted but the appeal should be dismissed. In the course of his judgment in Weaver v Law Society of New South Wales[51], Mason J observed that:"in criminal proceedings an earlier acquittal cannot be re‑litigated (R v Storey[52]), though a prosecution for perjury may be maintained in respect of the giving of false evidence which secured that acquittal".[51](1979) 142 CLR 201 at 206‑207.[52](1978) 140 CLR 364. The primary question on this application by the Crown for special leave to appeal from the Queensland Court of Appeal requires consideration of that broad proposition. The particular issue concerns the competency of a later charge of perjury in respect of a statement given under oath by the accused at his trial for murder that he did not kill the deceased, in circumstances where the only element of the offence in question was whether the accused had killed the deceased. Although the jury convicted the accused of murder, that conviction was later quashed and a verdict of acquittal entered. This invites attention to the significance of the changes to the common law which rendered the accused a competent (but not compellable) witness, and the interaction between the statutory offence of perjury and common law principles often gathered under the rubric "double jeopardy". Full argument was heard on this question, in respect of which the Court reserved its decision. If the Court were to reach the view that the charge of perjury was properly laid, it would be necessary to hear further argument on the other grounds upon which the applicant seeks special leave to appeal. The respondent was convicted of perjury on 2 November 2000 following a jury trial before Muir J in the Supreme Court of Queensland. He successfully appealed against that conviction to the Court of Appeal (McMurdo P, Williams JA and Holmes J), which set aside the conviction and entered a verdict of acquittal[53]. The Court of Appeal concluded that Muir J had erred in failing to hold that the perjury indictment should have been stayed as an abuse of process and that, in any event, the verdict returned by the jury was unsafe and unsatisfactory[54]. The Crown seeks special leave to appeal against that decision.[53]R v Carroll [2001] QCA 394.[54][2001] QCA 394 at [1], [72], [75]. The murder trial and appeal
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HAYNE J,
GAUDRON AND GUMMOW JJ,
HUGH J