R v Carroll

[2002] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B82 of 2001

B e t w e e n -

THE QUEEN

Applicant

and

RAYMOND JOHN CARROLL

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 25 JUNE 2002, AT 10.28 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the Crown in this matter.  (instructed by Director of Public Prosecutions (Queensland))

MR M.J. GRIFFIN, SC:   May it please the Court, I appear with MR P.J. DAVIS, for the respondent.  (instructed by Legal Aid Queensland)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   May your Honours please, the exposition by this Court of the proper principles governing perjury trials is of general importance to the administration of criminal law in this country.

The submission is, in respect of this matter, that the Court of Appeal has, with respect, made a number of significant and crucial errors which first require correction by this Court and secondly compound the miscarriage of justice surrounding the events of the death of the child, Deidre Kennedy.

Dealing with those two matters in three categories by way of overview, the starting point to illustrate the errors and to demonstrate where the appeal, in my respectful submission, commenced to go off the rails can be seen at an early fundamental error in a judgment of the Court of Appeal.  The context of that was that the matter was listed for trial, various issues were, of course, live, and a pre‑trial hearing was listed before the learned trial judge.  That hearing proceeded over two days.  His Honour reserved the matter and gave a considered ruling which was reported, which your Honours would have a copy of, in R v Carroll (2000) 115 A Crim R 164.

The Court of Appeal, inexplicably it would seem, but clearly – and this, the error by them is acknowledged in the written submissions by my learned friends – they misconceived a crucial ruling by the trial judge.  I will come back to that but that was in relation to the very basis of the Crown case, namely, the relevant evidence.  That error, in my submission, led to the Court of Appeal not considering, as required by principle laid down by this Court, the whole of the evidence collectively and failing to appreciate the nature and depth of all of the evidence against the respondent on the Crown case.  So, there is that primary error.

The second error of principle which we seek to identify which compounded that first error may be found, in my submission, where the Court of Appeal purports to lay down principles applicable to perjury trials.  I will come back to that.

GUMMOW J:   Is the Court of Appeal in any way reconsidering Justice Muir’s decision of 6 September?  Is that swept up in any way into the appeal to the Court of Appeal?

MR BYRNE:   It was swept up but the crucial part ‑ ‑ ‑

GUMMOW J:   It was really an interlocutory step in the trial.

MR BYRNE:   Indeed.  Indeed it was but his Honour made ‑ ‑ ‑

GAUDRON J:   It does go, does it not, to whether you can charge perjury for a statement such as that in issue in this case, which is really the statement ‑ a reaffirmation on oath of a not guilty plea?

MR BYRNE:   That is so, your Honour.

GAUDRON J:   Was there anything in point on that issue?

MR BYRNE:   In respect of the authorities?

GAUDRON J:   Any decisions, yes, because that seems to be the starting point in this case, does it not?

MR BYRNE:   I am happy to deal with that, your Honour.  The principles expounded by the Court of Appeal in paragraph 24 of the judgment appear to say ‑ and as I understand what your Honour Justice Gaudron is putting to me that that is not the way a trial is to be conducted.  One focuses not upon the initial crime even where the allegation of perjury is that ‑ ‑ ‑

HAYNE J:   That is to discuss the way in which the trial should unfold, the way in which the evidence should be treated.  Is not the more basic question, can perjury be laid as a charge where the perjury is said to consist in the sworn statement “I am not guilty of the offence of murder”?

MR BYRNE:   Certainly, we would answer that affirmatively, in our submission.

HAYNE J:   Based on what?  There is the line in Storey in Justice Jacobs judgment but where does one route that idea in principle?  Are those issues that are necessary for us to consider in this appeal?

MR BYRNE:   In my submission they are because the submission is that the Court of Appeal misapplied, particularly passages in Storey’s Case, in reaching the conclusion and it must be the conclusion which your Honour puts to me that it is not feasible or legally justifiable to proceed with a perjury charge on that basis.

HAYNE J:   Because there has been a lot of law since Storey.

MR BYRNE:   Yes, there has.  The Court of Appeal proceeding in that way found that it was not an appropriate way – Storey’s Case, in effect, and Rogers’ Case, and those cases allowed a duplicity or ‑ ‑ ‑

GAUDRON J:   Mr Byrne, perhaps I should just raise this.  This matter is a special leave application but it has been listed for full argument.  If it were an appeal, it seems to me, it would be open to the respondent to file a notice of contention arguing that the decision of the Court of Appeal is right but for different grounds that it should have resulted in the same decision but for the reason that there is no such – it is simply not competent to lay a charge of the kind here laid.  Do you understand that that is open to the respondent to argue?  Because, for my part, I think this is the first step in this case and really ought to be addressed and if it cannot be addressed then my thinking would be if that issue cannot be addressed then maybe it is not a case for special leave.  It seems to me one just cannot dive in at the middle.

MR BYRNE:   I would have no difficulty in my learned friends taking that proposition if they seek to do so.

If I can just finish the overview of that point.  If I am correct in the submission regarding the viability of such a charge then the Court of Appeal in focusing no upon the original crime but upon the allegation of perjury, they then proceeded to disregard parts of the Crown evidence because they were considered to be directly relevant to prove, in this case, murder but not on the principles laid down, relevant as to whether the respondent lied when he said he did not kill the child, Deidre Kennedy.  paragraph 46 of the judgment is an example of that, where the Court of Appeal said, “Even if” – the evidence of Hill:

if it was accepted in its entirety it would amount to no more than additional circumstantial evidence from which a jury might conclude beyond reasonable doubt that the appellant committed –

murder –

But that of course was not the issue here.

HAYNE J:   And you say it was the issue here?

MR BYRNE:   That was the matter clearly put in issue by the way the indictment was framed and the case was litigated, your Honour, yes.

HAYNE J:   Which brings us back to the starting point, can it be the issue?

MR BYRNE:   Correct.  Perhaps if I go straight to that point.  I seek to deal with that in ground (b) which begins on page 8 of the written outline.

GLEESON CJ:   What page is the indictment?

MR BYRNE:   Page 1B of record book.

GLEESON CJ:   Thank you.  The charge is on page 2, is that right?

MR BYRNE:   Yes, he is arraigned on page 2 of the record.

McHUGH J:   Mr Byrne, I have a recollection that about 40 years ago in England a man named Donald Hume, who had been acquitted of murder was charged and I think convicted of perjury after he had made confessions in a newspaper that he had, in fact, killed the deceased.  Is that a reported case or have you found any reference to it anywhere in the literature?

MR BYRNE:   I must say I have not come across it, your Honour.  The only ‑ ‑ ‑

MR BYRNE:   There was this Scottish case but that is certainly not the one your Honour is referring to.

GLEESON CJ:   Can I come back to the form of the charge for a moment?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   It does seem to raise the legal issue.  I am not sure as a matter of pleading exactly where the form of this indictment comes from and we may have to look at that.  But the allegation is that he:

knowingly gave false testimony to the effect that he . . . did not kill . . . DEIDRE KENNEDY.

It does not go on to say what I would have expected it to say, that is, “whereas he did kill Deidre Kennedy”.

MR BYRNE:   The form follows that in the forms to the Criminal Code and the indictment at page 1B there is reference to the relevant form, 78.

GLEESON CJ:   My memory might be playing tricks with me but I have a recollection of having seen in another jurisdiction a charge of false swearing or a charge of perjury that included an averment identifying the falsity.  Plainly by implication and perhaps in some places it would necessarily be express, the allegation is that the testimony that he did not kill Deidre Kennedy was false because he did kill Deidre Kennedy.  Suppose the indictment had spelled that out.

MR BYRNE:   That is certainly not the practice in Queensland but I accept that that is implicit in the form of the pleading which is before this Court.

GLEESON CJ:   That raises the legal question, does it not?

MR BYRNE:   It does.

GLEESON CJ:   It is an ingredient of the charge against him that he is guilty of the murder of Deidre Kennedy.

MR BYRNE:   It was definitely left by the trial judge to the jury that if they were not satisfied to the ordinary criminal standard that he did kill Deidre Kennedy, then they must acquit.

GLEESON CJ:   Perhaps what I said was slightly inaccurate.  It is an ingredient of the charge against him that he did kill Deidre Kennedy.

MR BYRNE:   Yes, it is.  The Crown could not succeed without proving that to the criminal standard.

GLEESON CJ:   Strictly not necessarily that he was guilty of murder of Deidre Kennedy.

MR BYRNE:   That is so.

GLEESON CJ:   Yes.  That form of pleading, you say, is in your Criminal Code, is it?

MR BYRNE:   It is.  I will just quickly ‑ ‑ ‑

McHUGH J:   That proposition which you must maintain is not easy to reconcile with the judgment of this Court in Rogers, is it?  We have one jury acquitting the accused of murder and now you ask another tribunal to convict him of perjury on the basis that he did murder Deidre Kennedy.  Is not Rogers against that proposition, that you just cannot have a situation where you get inconsistent findings on essential fact, quite apart from issue estoppel or res judicata?

MR BYRNE:   The substratum ‑ and this must be the point of principle which we raise and must raise successfully ‑ is that cases such as Rogers and cases such as Storey are subject to the exception of where a fraud is committed upon the court.  In fact, there is a passage which is set out after the reference by Rogers in the Court of Appeal, to say:

A judicial determination is binding, final and conclusive (subject to fraud and fresh evidence) ‑

So, the principle we put forward is that where there is a fraud committed upon the court then issues such as issue estoppel, issues such as stays of proceedings in Rogers are not applicable because there is an exception because the exception is required so as the law is not brought into disrepute.

McHUGH J:   If perjury is made out it must always be a fraud on the court so this seems tantamount to saying that you could always retry somebody for perjury.

MR BYRNE:   Provided there is substantial new evidence other than what he was tried on for the original offence.

McHUGH J:   That seems to be a different ground from fraud being the ground.

GUMMOW J:   Does section 123 of the Code reproduce the common law, do you know?

MR BYRNE:   I cannot answer that, your Honour.

GUMMOW J:   We would probably need to know that.

GLEESON CJ:   I would be interest to know whether a pleading of a charge of perjury or false swearing at common law required an averment of the true facts?

MR BYRNE:   I will attempt to get some assistance on that point, your Honour.  I cannot answer it at the moment.

HAYNE J:   The principle for which you have just been contending, namely, a fraud or fresh evidence, et cetera, is a principle with which we are reasonable familiar in the civil area and you seek to bring it across, do you not, into the criminal area where, perhaps, the considerations at work are different?  They are different, perhaps, because you have, to put it in the usual colourful terms, the weight of the State are weighed against the individual?  It is not a contest between parties where concepts of fraud, fresh evidence and the like may more readily be deployed.

MR BYRNE:   I accept, certainly, that there is a difference of principle but there is an argument and his Honour Justice Gibbs, as his Honour then was, deals with this, at least in theory, in Storey’s Case where he seems to say –and I can take your Honours to the passage – but he seems to be saying that where you have a civil litigation, policy considerations going towards finality of litigation between parties are, perhaps, more important than where in the criminal field if there is ‑ I think he uses the term “overwhelming evidence” to prove the contrary to what the original adjudication was, then it would fly in the face of policy.

GAUDRON J:   There really may be a difference about what is said to constitute the perjury.  If what you were asserting was the perjury in this case was that the respondent lied about his presence at the passing out parade ‑ ‑ ‑

MR BYRNE:   Yes, your Honour.

GUMMOW J:   That would be false testimony touching a matter material to a question then depending.  It would literally fall within the Code.

MR BYRNE:   That is accepted.

GAUDRON J:   But when you go to the question of the guilt or innocence – and you may say it is only charging that he did, in fact, kill the child rather than murder, but that is not a very convincing difference in this context – but when you go to the actual charge, are you not right into double jeopardy?  Are you not controverting a verdict of acquittal?  You have to bear in mind in this context as well, it seems to me, when you talk about fresh evidence, the Crown could not appeal on fresh evidence grounds in the way in which an accused could, could it?

MR BYRNE:   No, your Honour.

GAUDRON J:   So, you are in a different position, are you not?

MR BYRNE:   That is accepted as well but the issue still comes back to the one which I think your Honour raised with me before, whether it is legally permissible to bring a charge in this form and that is what Justice Hayne was raising with me as well.

GLEESON CJ:   This is the precise issue that was addressed by Justice Muir, is it not, in this case?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   What did he say about it?

MR BYRNE:   His Honour reviews the authorities and concludes, at the bottom of page 169 of the report if Your Honour has that, in paragraph 26, it is a brief summary, his Honour concludes:

For the above reasons, the accused’s contention that the doctrines of autrefois acquit or res judicata prevent the bringing of the perjury charge fails.

So, that is his Honour’s conclusion after the review of the authorities carried out by him.

GUMMOW J:   Are those doctrines in any way reproduced in the Code or does the Code stop short of dealing with that part of the common law?

MR BYRNE:   The only aspect of the Code is section 17 which deals with autrefois acquit and convict.  I do not believe it goes further than that, your Honour.

GUMMOW J:   From section 17?

MR BYRNE:   That is so.

GUMMOW J:

It is a defence to a charge . . . to show that the accused has already been tried, and convicted . . . of the offence with which the person is charged ‑ ‑ ‑

MR BYRNE:   The answer to that proposition is that perjury is, by definition, a different charge to one of murder.

GLEESON CJ:   Mr Byrne, once again my memory might be unreliable, but I thought there was a line of authority dealing with the subject of autrefois convict or autrefois acquit on charging not an identical offence but charging with an offence that was an element in an offence of which a person was previously acquitted or convicted, and I have a recollection that that was in connection with drug offences.  I have a memory of a case, for example, in which a person was charged with an offence in relation, I think, to cannabis and dealt with either by conviction or acquittal, and then there was a later charge of doing something which was a step in the transaction that had been the subject of the former charge?

MR BYRNE:   I am certainly aware of cases where, for example, a person is found in possession of, say, cannabis and hemp, and a charge of possession of a cannabis is brought and successfully defended, that the courts will stop a subsequent bringing of a separate charge of possession of the hemp.  I am not certain of the case your Honour is referring to but the same principle, with respect, would seem to apply.

GLEESON CJ:   The problem we have here is this, is it not:  there is discussion in the authorities of charging somebody with perjury or suborning a witness or perverting the course of justice, or whatever, in relation to the manner in which a criminal charge has been defended – and I, for my part, would not have any difficulty with the proposition that if you could prove that the present respondent threatened a potential witnesses against him and brought about the result that the witness did not give evidence, that could be the subject of a charge.  But the issue that has to be addressed in the present case is that, following our earlier discussion about the form of the indictment and what is at least implied in it, it is an element of the offence with which the respondent is now charged that he was guilty of that of which he was earlier acquitted.

MR BYRNE:   Following your Honour’s line of reasoning, certainly killing is an element, albeit part of an element, of the charge of murder.  So, if that is what ‑ ‑ ‑

GLEESON CJ:   It is also an element of the charge of perjury.  If it is at least necessarily implied in the charge of perjury that it is an element of the offence that he committed that the statement that he did not kill Deidre Kennedy was untrue, then there is that degree of coincidence between the charge of which he was acquitted and the charge now brought against him.

MR BYRNE:   That is so.

GLEESON CJ:   It was that degree of coincidence that led the Court of Appeal, in a way which you criticise, to try and distinguish between new evidence that only went to show that he was the killer of Deidre Kennedy and new evidence that went to show that he committed perjury.

MR BYRNE:   The artificiality of that comes across so we must come back to the issue which your Honour directly raises.

GLEESON CJ:   Exactly.  It may be that the impossibility of that distinction just raises this issue.

MR BYRNE:   With respect, I am sure that is correct because the Crown has to successfully argue here that where there is a fraud then one is allowed to go behind the initial determination so that one cannot maintain, even in a criminal court, adjudication obtained by means of a fraud.  If we fail on that, that first hurdle, then we fail because that was the substratum of the prosecution here.

GAUDRON J:   Even that may overstate it or, perhaps, may have some logical, imponderables in it.  Why did the prosecution fail?  You cannot automatically say that it failed in this case because the applicant gave what you say is false evidence.  That is equivalent to saying the prosecution failed because he pleaded not guilty or may well be…. for saying that.  The prosecution in this case, it seems to me when one has regard to the history, may well have been said to fail simply because the prosecution did not discharge the onus of proof.  So, to put it in the way you just did may have a few logical difficulties in it.

MR BYRNE:   Just to understand your Honour’s proposition you are putting to me, are you talking about the original prosecution or the perjury prosecution?

GAUDRON J:   Yes, the original.

MR BYRNE:   That is very true.  The result on the original prosecution can be conceived of no other way except the jury was not satisfied as to an element of the offence charged against him.

GLEESON CJ:   They were, were they not?  The jury?

MR BYRNE:   They were, the Court of Appeal was not.

GLEESON CJ:   Yes, the jury was satisfied.

MR BYRNE:   Yes.

GUMMOW J:   That is the problem, is it not?  Because the doctrine of autrefois acquit and convict derived at a time before there were courts of criminal appeal.  In other words, this gentlemen was initially, I suppose, “acquitted”, by a version of the quashing and the refusal of an order for a new trial.

MR BYRNE:   That is so.  There was a verdict of acquittal entered by the Court of Appeal.

GUMMOW J:   How you fit notions of merger which are central to autrefois acquit into all of that I do not quite know.  There are two notions, one of which is merger and the other which is vexation.  There are two distinct ideas involved here.  We discussed them in Pearce to some extent which does not seem to have been referred to anywhere. It is in 194 CLR 610.

MR BYRNE:   But here the matter was conducted on the basis that one accepts for all purposes the judgment of the Court of Appeal, the Court of Criminal Appeal as it then was, was ‑ ‑ ‑

GUMMOW J:   As what, as an acquittal?

MR BYRNE:   As an acquittal.

GLEESON CJ:   That is presumably pursuant to some power given in the Code, is it?

MR BYRNE:   It is, your Honour.

HAYNE J:   To direct entry of a verdict?

MR BYRNE:   That is so also.

GUMMOW J:   It does not have that particular sanctity of a jury decision which underlies the reasoning in all of this.

MR BYRNE:   It does not have the sanctity in the one very – I am sorry?

GUMMOW J:   Public involvement through the jury.

MR BYRNE:   Yes, it does not, but one real effect of it is it allows the Crown to be here which it would not be if it was a verdict by the jury.  That would be the end of the road.  But the issue still comes back to ‑ ‑ ‑

GAUDRON J:   Why do you say that?  I do not think it makes a difference, does it, Mr Byrne, as to your presence here today?  It would not make any difference, would it, that it was a jury acquittal or a Court of Appeal acquittal.

MR BYRNE:   No, I meant by that simply if there had been an acquittal by the jury, that would be the end of the matter. 

GAUDRON J:   Acquittal on the murder charge or the perjury charge?

MR BYRNE:   The perjury charge.

GAUDRON J:   The perjury charge, yes.

HAYNE J:   Your case must ultimately also be tested, must it not, against presentation of someone for perjury following a jury verdict of acquittal?

MR BYRNE:   Yes, that is accepted.

McHUGH J:   I have another recollection in the famous publicity that concerned the striking off of a solicitor, R.D. Meagher.  His client, I think, had been acquitted of attempting or a conspiracy to poison his wife and he was acquitted by a jury, but he was subsequently gaoled for perjury.  It is the subject of an article by C.K. Allen in the Law Quarterly Review many years ago.  You have not struck that, I take it? 

MR BYRNE:   I have not, your Honour.

McHUGH J:   I cannot remember his name, I think his Christian name was George, the accused, I cannot remember his second name for the moment.

GLEESON CJ:   He was the captain of a Sydney Harbour ferry.

HAYNE J:   Dealing in goods in a hotel.

MR BYRNE:   We will see if the search engines can turn that up, they may be able to.  But we come back to the principle and the approach by the Court of Appeal was to say, in effect, one could not do what has been the object of discussion this morning.  That seems to be based in the Court of Appeal on concepts of double jeopardy and reference is made, of course, to Rogers, Walton v Gardiner, to Storey ‑ ‑ ‑

GLEESON CJ:   But as I understand it, the Court of Appeal would not have had any difficulty if the evidence principally relied upon by the Crown to prove perjury had, for example, been a video tape of a confession being made by your client.  If he had been boasting about the persuasiveness of his evidence at his criminal trial and said in the course of that that he had not told the truth, the Court of Appeal would have regarded that as evidence that went to the perjury rather than to the murder.

MR BYRNE:   That seems to be correct, your Honour, yes.

GLEESON CJ:   That is a distinction I have some difficulty following.

MR BYRNE:   That is one of the issues raised.  That is one of the reasons why there seems to be a focus by the Court of Appeal on the gaol confession to Swifte.  They seem to spend a lot of time disposing of that and once that is out of the way, then cursory ‑ if I may respectfully use that term – regard is had to the other strands of a circumstantial case which as equally as a confession could have proved the case and, in fact, did prove before the jury the case against the respondent.  But that I ‑ just to answer your Honour’s question, that seems to be a distinction drawn in the Court of Appeal.

GLEESON CJ:   What would the Court of Appeal have made of evidence of an eyewitness who came forward and said, “All those years ago, I was there and watched this man kill Deidre Kennedy”?

MR BYRNE:   One again struggles with whether that is relevant to the perjury in terms of the formulation by the Court of Appeal or whether that is disregarded or downgraded because it is relevant to whether he killed Deidre Kennedy.  It seems to be that division drawn in the judgment.

GLEESON CJ:   A possible point of view adverse to your case is that the real distinction is a slightly different one, that the real distinction is between laying a charge of perjury which involves as an element of the offence of perjury his guilt of the original offence and laying a charge of perjury which does not as, for example, a charge that he gave false evidence that he was at the air force base when in truth he was in Ipswich.

MR BYRNE:   I take the distinction but, again, the issue becomes the central one, whether it is permissible in law, assuming it is an element, to relitigate that central issue because  ‑ ‑ ‑

GAUDRON J:   To relitigate guilt of the offence of which there has been an acquittal.  You have to come to that, have you not?  Is it permissible to relitigate guilt of the offence on which there was an acquittal?

MR BYRNE:   We have.  To take an example, if a person is charged with murder; acquitted of it ‑ a slightly different example of that of the Chief Justice ‑ walks out of the courtroom and the only evidence he had given was “I do not kill him/her”, walks out and said, “I fooled them, I did”, whether in those circumstances one can bring a charge of perjury against him and that is the issue and there are genuine, in my submission, policy considerations in that issue because it is clear beyond doubt that such a person could not be recharged with the original offence.  So the only possibility in the narrow facts which I put as an example is a charge of perjury.  So, yes, we accept what your Honour Justice Gaudron puts to us, that has to be the issue.

GLEESON CJ:   Are there no decisions of final Courts of Appeal in other jurisdictions that address this issue directly?

MR BYRNE:   The only matters ‑ there is a decision of El-Zarw in the Court of Criminal Appeal, Queensland, which addresses it.  The only other case of which I am aware – and it is not on my list of authorities, but it is certainly referred to in the Court of Appeal – that is Her Majesty’s Advocate v Cairns, that is a Scottish case I referred to earlier, [1967] JC 37.

HAYNE J:   But Humphrys also comes close to it, does it not, [1977] AC 1.

MR BYRNE:   It comes close to it, your Honour.  It does not seem to be directly on that point but ‑ ‑ ‑

HAYNE J:   Humphrys facts may in fact invite attention to whether a distinction of the kind that has been now mentioned several times is a maintainable distinction but, for the moment, perhaps confining attention to the direct case, “You committed perjury in denying on oath guilt of the offence”, do you say only Cairns and El-Zarw?

MR BYRNE:   Are the only two that I am aware of.

HAYNE J:   Nothing in the US, nothing in Canada?

MR BYRNE:   Not that we have found, your Honour, no.

HAYNE J:   But it tends to suggest, Mr Byrne, that prosecutors have drawn back from this course that the point has not been tested, which begins to ring alarm bells about why prosecutors have seen fit to draw back.

MR BYRNE:   It is an extraordinary step to bring such a prosecution, there is no shirking from that.  Again, leaving aside issues of policy and prosecution, one would hope that it would only be in serious cases that such a prosecution would be launched in Queensland.

HAYNE J:   At base, what does that mean?

MR BYRNE:   In Queensland it means this, there has only been two that I am aware of, El-Zarw and the present matter, both of which deal with murders.

HAYNE J:   The same principle ought to apply to the person who stands charged with speeding and says, “No, I was not driving, my spouse was”, is acquitted, then charged with perjury.

MR BYRNE:   I cannot back away from the same principle, your Honour.

HAYNE J:   Anyway, I am diverting you.

GAUDRON J:   Although the example Justice Hayne gives you, that second example, is not necessarily on all fours with the present case. 

HAYNE J:   No, no, that is closer to Humphrys.

GAUDRON J:   Yes.

HAYNE J:   “I was not riding a motor bike anywhere in England in that year.”

MR BYRNE:   In that year.

GAUDRON J:   The conviction of perjury of that does not necessarily controvert the acquittal and does not necessarily prove the charge of dangerous driving, for example.

MR BYRNE:   In Humphrys Case, yes, that is right; but as I understood what Justice Hayne was putting to me, if there was only one issue and that is the one that is relitigated, be it a driving case or anything else, then the principle applies.

HAYNE J:   I mean, that is the slide you wish to have made in dealing with this distinction here, the slide between, “Did you kill?” sliding into “Did you murder?”, because the only live issue at the trial of this man was, was he responsible for the death.  There was no other live issue, was there?

MR BYRNE:   Quite so.

HAYNE J:   Therefore, the conviction of perjury when he said, “I did not kill”, equated to acknowledgment of all of the elements of the offence which he had first stood trial for.

MR BYRNE:   Yes, your Honour.

HAYNE J:   As I say, I divert you.  I should not.

MR BYRNE:   It is quite all right.  Examination by the Court of Appeal of the relevant authorities seems to commence at about page 1296 in volume VI of the record book.  Reference is made in paragraph [14] to section 17 of the Code which was discussed with Justice Gummow briefly this morning where the Court was content to say that that had no application.

GUMMOW J:   So which paragraph was this?

MR BYRNE:   Paragraph [14], your Honour.

GAUDRON J:   Perhaps, Mr Byrne, you could tell us or tell me, if you would, what is the principle distinction, if there is one, between autrefois acquit and autrefois convict?

MR BYRNE:   I am not certain that there is a difference in principle.

GAUDRON J:   Then what do you say is the principle that underlies those defences because I think we ultimately have to find the root principle to deal with this case.  In section 17 or the common law principles, it seems means this, in my respectful submission, that where one has been convicted or acquitted on a charge, one cannot then be reindicted on a charge, either the same charge or a charge which was implicit.

GAUDRON J:   Yes, but why?  Is it bis vexari, double jeopardy, to treat them as the equivalent or is it to maintain the integrity of the court’s records, which is not an irrelevant consideration, or is it something else?  If it is the same, what is it?  I mean, Justice Gummow put to you earlier that at least with autrefois convict there is a notion of merger at play.

GUMMOW J:   This is discussed by Justice Handley with a great deal of learning in the book on res judicata.

HAYNE J:   Referred to in his Honour’s judgment, that is, Justice Gummow’s judgment in Pearce at 194 CLR at 626, paragraph 59.

MR BYRNE:   My understanding, at least in the criminal sense, your Honour, is that they are notions of ‑ ‑ ‑

GUMMOW J:   That was what the judge was talking about.

MR BYRNE:    ‑ ‑ ‑ double jeopardy which underlie ‑ ‑ ‑

GAUDRON J:   Double jeopardy.

GUMMOW J:   Double jeopardy is a mansion with many rooms in it, really.

HAYNE J:   Not to say a mantra.

GAUDRON J:   But if you put it on those terms, does that have any more basic jurisprudential underpinning?  Is it an aspect of abuse of process or is it an aspect of something else?

MR BYRNE:   The way it seems to be dealt with is that, no, it is simply a root principle of law.  Where it does not apply, then one goes into areas such as abuse of process to see whether independently of the absolute prohibition there are reasons of policy and principle why matters that do not fall within that strict umbrella should similarly not be allowed to proceed. 

GAUDRON J:   Now, of course, the doctrines at least at common law, and there may be a question under the code, at least in the autrefois defences, are applicable to foreign acquittals and convictions, are they not?

MR BYRNE:   Yes, your Honour.

GAUDRON J:   I do not know why they are, but it may tell us something about them.

MR BYRNE:   Yes.  But here the issue is different in that one is not caught within the autrefois convict or acquit because the charge is a different one.  One then, so the argument proceeds, has to look to a different either principle or policy to deal with the specific matter and that can include, as your Honour raises, abuse of process. 

GLEESON CJ:   What about conspiracy charges where the overt acts relied on are matters in respect of which there has previously been either a conviction or an acquittal?

MR BYRNE:   To answer your Honour quickly, my submission would be that the autrefois defences would not apply because the offence is different but, depending on the circumstances, if there was the merger or the overlaying, then there may be an abuse of process.  It would depend on the factual circumstances.

GLEESON CJ:   That example would illustrate the importance of having another principle in addition to the autrefois acquit or convict principles?

MR BYRNE:   Quite so, quite so, and that gets back to the discussion about the line of authorities dealing with drug cases, that they are outside the umbrella, if you like, and that is probably the line of authority of Connelly v The DPP in England which has been adopted in this Court and advanced to what abuse of process is today.  That is an unclosed or open area where the courts will exercise a discretion and that is the area which the Court of Appeal then went on in their judgment to examine whether this fell within an abuse of process, referring to authorities, including Rogers and Walton v Gardiner.  The passage in paragraph [16] referring to re‑litigation in the subsequent criminal proceedings ‑ and this has some relevance, in my submission ‑ it said:

Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive –

and there is the qualification which I seek to rely upon –

(subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.

GLEESON CJ:   That might explain an aspect of the Court of Appeal’s judgment of which you complain in your submissions.  It may be that because of the approach they took to the underlying problem of principle involved in this case, when they came to look at the actual evidence they approached it in a very different manner from that in which the jury would have approached it.

MR BYRNE:   There is no doubt that they approached it in a different manner, your Honour.

GLEESON CJ:   The jury would not have been, I presume, given any instructions about the weight or the respective weights they were to give to evidence that simply tended to show that he murdered the child and the confessional evidence?

MR BYRNE:   Quite so, it was litigated before the jury as being either a direct evidence case based on the confession and the odontological evidence and, alternatively, a circumstantial case.  Now, there was no distinction, and we say correctly, drawn so far as the jury’s consideration of the evidence they could consider as part of the circumstantial case; whereas that is or seems to be the precise distinction drawn in the Court of Appeal.

GLEESON CJ:   Did the Court of Appeal base their ultimate decision upon a view that the decision of the jury was unreasonable or upon some other proposition?

MR BYRNE:   They seemed to have based it on the proceedings should have been stayed because, on their analysis, the only direct evidence as to the perjury was the evidence of Swifte.  When they found that Swifte was of no relevance, they said the prosecution on that basis alone should have been stayed.  They then went on to look at the individual pieces of evidence and disregarded them one by one on the basis that they may have been relevant to whether he killed the child, but they were not directly relevant to whether he committed perjury when he said he did not and, at the end of the day, concluded, “Well, on that analysis, the verdict was unreasonable”.

GLEESON CJ:   Is that right?  You see, it may be that they were not embarked upon the usual appellate examination of the reasonableness of a jury’s verdict.  They were embarked on a somewhat different exercise and that is why the criticisms that you make of their process of reasoning, whether they be right or whether they be wrong, might be slightly misdirected.

MR BYRNE:   Certainly they analysed that additional evidence on the basis that I have tried to explain, namely, whilst it could have been evidence which would prove “beyond reasonable doubt”, to use the words of the Court of Appeal, that he did murder the child because that was not the issue in the trial, the evidence was one of perjury and because it did not go directly to that, therefore, it was substantial new evidence and was disregarded.  The exercise was never conducted and we do complain about this, that one looked at all of that evidence together, as the jury were instructed to, and determined whether on all of that evidence there was a case against the respondent.

GAUDRON J:   That was not what the jury was being asked to do, to determine whether there was a case against the respondent.

MR BYRNE:   I am sorry, I expressed that badly.

GAUDRON J:   Yes, what the jury was being asked to do was to determine beyond reasonable doubt, firstly, that he did kill the child and, secondly, that he lied when he said he did not.

MR BYRNE:   Yes, it was more rolled up into one, but certainly the jury were told if they were not satisfied as to the first, they must acquit on the second.

GLEESON CJ:   I do not think Justice Williams, for example, ever decided that the jury’s verdict was unreasonable.  If you look at paragraph [63] on page 1311, it seems clear, does it not, that what he was deciding is that reviewing the evidence with the benefit of hindsight, this was a charge that should not have been brought?

MR BYRNE:   Yes, he is saying that in paragraph [63], your Honour, yes.

GLEESON CJ:   It would be misleading, I would have thought, to approach his reasons for judgment as though this was an ordinary case of appellate review of a jury’s verdict for unreasonableness.

McHUGH J:   Is that not clear from paragraph [64], where his Honour says:

When one considers the conduct of the perjury trial, and the evidence as it there emerged, it is clear that the principle of double jeopardy was substantially breached.

HAYNE J:   What then does his Honour mean at [72] by saying ‑ ‑ ‑

MR BYRNE:   Paragraphs [71] and [72].

HAYNE J:    ‑ ‑ ‑ [71] and [72], how are we to understand that?

MR BYRNE:   That is what I was attempting to answer the Chief Justice with before, that there seems to be this bifurcated approach, namely that there should have been a stay, but alternative and in any event, the verdict was unsafe and unsatisfactory.

McHUGH J:   Except his Honour says in [71] “tend to support the conclusion . . . was unsafe”, but in [72] he says:

In my view the trial should have been stayed as an abuse of process.

That rather indicates he was not deciding it on the unsafe and unsatisfactory.  But, Mr Byrne, do you not really have to face up to the proposition that given the nature of the Crown case on this perjury charge that a plea of autrefois acquit would have been open, that the Crown case breached the third of Lord Morris’ proposition in Connelly’s Case, namely that autrefois acquits if the crime in respect of which the prisoner is charged is, in effect, the same or substantially the same as the charge upon which he was acquitted and that in determining whether it is substantially the same, the question is whether the evidence which is necessary to support the perjury charge is the evidence which could have proved the charge on which the accused was acquitted.  Does that not cover this case exactly?

MR BYRNE:   The distinction that we seek to make with that, your Honour, is that the charge initially is different.  The murder is alleged to have occurred in Ipswich in 1973.  The perjury was said to have been committed in the Supreme Court, Brisbane in about 1985.  Now, true it is that evidence in respect of the first was led and we would say admissible in respect to the second, but it does not follow and no prosecution could properly be brought in line with what your Honour has just read to me unless there was substantial, new, different ‑ whatever terminology the authorities use ‑ evidence, in addition to that supporting the first charge.  Otherwise there would be, as there was in Connelly, an abuse of process and it should be stayed.  But Connelly does not, on that passage as I understand it, at least it does not say, that this necessarily must be stayed at first instance.

GLEESON CJ:   Mr Byrne, I am sorry to interrupt the flow of your argument, but a matter has come up that we need to deal with.  Is this convenient time for us to take that adjournment for a short period now?

MR BYRNE:   Certainly, your Honour.

GLEESON CJ:   We will adjourn for five or ten minutes.

AT 11.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.48 AM:

GLEESON CJ:   I am sorry your argument was interrupted Mr Byrne, go ahead.

MR BYRNE:   Thank you, your Honour.  Perhaps if I deal with the authorities in respect to the issue, which was being discussed.  The first in time is the matter referred to in the judgment in the Court of Appeal of Her Majesty’s Advocate v Cairns [1967] JC 37 – it is not part of the list of authorities – but the summary of ‑ ‑ ‑

HAYNE J:   What is the report that is abbreviated JC?  It is not one I have ever encountered, do you know?

MR BYRNE:   In fact, when I found it was under Scottish Times.  We could not find “JC” either, but it certainly is reported.

McHUGH J:   I think it must be session cases myself.

GLEESON CJ:   I think it is a mistype.

McHUGH J:   It is a misprint.  It must be Session Cases, because that is all I have for the Scottish Law Times version of it.  It should be “SC”

MR BYRNE:   Yes, your Honour.  That would explain why we could not find that citation, your Honour, yes, but certainly the summary of that which is at the bottom of page 1298 of the appeal book was, and it said, second last sentence:

If Cairns could not be charged with perjury that would make a mockery of the law.  No reasonable member of society would accept a situation where a person could boast that he actually committed a murder he denied committing on oath and for which he was acquitted and yet the law was powerless to deal with him for perjury.

McHUGH J:   But is that not a point of distinction.  A person who has the benefit of an acquittal is entitled to maintain his or her innocence, but if that person then rejects the consequences of the acquittal and says that, in fact, he or she was guilty, then perhaps you are in a different territory, but that is not this case.

MR BYRNE:   It is a question of evidence, I suppose.  It perhaps was this case if the confession had sufficient weight, but, to put an example if I may respectfully back to your Honour ‑ ‑ ‑

McHUGH J:   Yes, but the confession in this case was not alleged to have been made after.

MR BYRNE:   It was before, but was accepted as fresh evidence.  An example other than one’s self throwing away the immunity would be, for example, DNA evidence coming to light subsequent to the acquittal.

HAYNE J:   But that is the point, is it not, Mr Byrne.  Can the State have two bites at the cherry?

MR BYRNE:   Quite so.  I am not trying to avoid that, your Honour.

HAYNE J:   Well, why should it?

MR BYRNE:   As was said in Cairns Case, it seems to be a public policy consideration.

GUMMOW J:   Yes, but what is the public policy?

HAYNE J:   What is the policy?  What is the advantage that is gained?

GAUDRON J:   And what was the gravamen of the perjury charge in Cairns?  I am not familiar with that case, I am sorry.  What had he been acquitted of and then what was he charged with?

MR BYRNE:   He was acquitted of ‑ ‑ ‑

McHUGH J:   Assault and stabbing, was he not?

MR BYRNE:   Yes, and that was the essence of the charge.  It appears at the top of paragraph 20 of the judgment.  It said:

is no doubt true that in order to substantiate the present charge the Crown will have to prove that [the accused] did in fact assault and stab . . . and therefore part of the facts now founded on are the same facts as those which were founded on the earlier trial.

HAYNE J:   And at what level of the Scottish hierarchy was this case decided?

MR BYRNE:   The High Court of Scotland, my learned friend says is correct.

HAYNE J:   So what, intermediate, is it not?

MR BYRNE:   The High Court of Justiciary.  So that is as far as I can advance that proposition. 

One then goes to the case of the House of Lords, which has been referred to in discussion this morning.  That is The Director of Public Prosecution v Humphrys [1977] AC.  Now Humphrys, as has been discussed, was a little different.  The question for determination was whether issue estoppel had any part in the criminal law of England and Viscount Dilhorne deals with that proposition at page 20.  In the paragraph beginning E, or just above E, his Lordship deals with the proposition as to whether there should be a stay, but then goes on to say, “In cases where there could be one trial for more than one offence and has sought without good reason to have two trials on the same facts, it may be right to exercise it.”  That is the power to stay.  The next part I emphasise, “But I cannot think that any question of double jeopardy arises on a perjury charge.”  And his Lordship seems to be dealing with the proposition there that it is, again, something different to double jeopardy where there has been a fraud such as perjury committed on the court.

GAUDRON J:   Again you say, fraud committed on the court.  I mean, it may not be entirely accurate to equate perjury with fraud in a criminal trial.

MR BYRNE:   It is the closest analogy I can come up with.

GAUDRON J:   Well, exactly, and I know why you take it up.  You take it up by reference to what was said by Chief Justice Mason in Rogers, I think.

MR BYRNE:   Yes.

GAUDRON J:   Yes.  But fraud had quite a distinct meaning in relation to the finality of litigation as to new evidence, particularly in the equitable jurisdiction prior to the Judicature Act.  I am not too sure you are right to just bring them together like that.

MR BYRNE:   Perhaps I am not and perhaps I should take it now higher than perjury, because perjury in some of the later authorities of this Court seems to stand by itself as an exception to the general rule.

HAYNE J:   In a civil context, an allegation of fraud brought by separate action would lead to what consequence with respect to the record of the court that was impugned?  It is spoken of “action to set aside a judgment for fraud”, but that, I think, is not strictly accurate, is it?

GAUDRON J:   I think it was not originally accurate, I think originally there was an injunction to prevent enforcement.

GUMMOW J:   Yes, species of common injunction.

GAUDRON J:   And perhaps later it did become accurate.

HAYNE J:   But you are then in a realm of discourse distinctly different from the realms of the criminal law, are you not, particularly if acquittal is not seen as merger, but as preclusion or estoppel?

MR BYRNE:   I understand what your Honour is putting to me.  Certainly that is the overriding rule, that an acquittal is seen, be it by a jury, but in the case here, a Court of Appeal, normally that is estoppel.  It is only a question of whether there is an exception in the case of perjury, which would allow one to go behind that determination.  That is the issue we keep coming back to.  Lord Fraser touches upon that point at page 58 in Humphreys’ Case, where his Lordship said that he was of the view that:

issue estoppel has no place in the criminal law of England.

But went on to say:

If (contrary to that opinion) issue estoppel were admitted in principle, I consider that it could not in any event apply to prevent a charge of perjury being brought against a person who had been tried for another offence, in respect of his evidence at the earlier trial.

Doing my best to answer the question put to me before, “What is the basis of the public policy”, at paragraph E his Lordship said:

But it would, in my opinion, be a matter of public scandal if a person could not be charged with perjury in a case like H.M. Advocate v Cairns.

I do not think that the issue of public policy has been further defined as other than that.

HAYNE J:   The expression “public scandal” masks whether anger, scandal, criticism, whatever it is, is rightly directed at the courts, the legal system, the prosecuting authorities, the investigating authorities.  Public scandal is a wonderfully broad all‑embracing phrase, and if the first prosecution failed, as for example may be the case, for want of proper investigation, would the State be able to have another go?

MR BYRNE:   I am not sure how to answer your Honour’s question, except to say it must, almost by definition, be broad, as is abuse of process broad, because one cannot, except by looking at specific cases, determine whether or not they fall within the umbrella.

HAYNE J:   But that may then force you back to try to identify the basal principles with which we are concerned and what is troubling me, and to which you will need, I think, to give attention is, whether the basal principle is not that acquittal is an end.  Acquittal is then preclusive of further criminal litigation about the topic.  Now that may lead to cases of people selling stories to newspapers boasting – it may, it may not – but the over‑arching principle is that the State has one go at prosecuting a citizen for crime.  It succeeds or fails, that is the end.

MR BYRNE:   I agree with your Honour, that is the end, but the cases seem to support an exception to that, where there has been, in the course of getting that acquittal, not something through the fault of the prosecution, but something, at least, an attempt by an accused person to secure that acquittal by virtue of perjury.  That is perhaps the basal issue.

HAYNE J:   Perjury which by hypothesis the jury at the first trial was persuaded by or was persuaded to the point of having the requisite degree of doubt.

MR BYRNE:   Not necessarily, because in the circumstances here the jury still convicted.

HAYNE J:   Yes, it is the interposition of the appeals that present the apparent difficulty.

MR BYRNE:   So, again, that comes back to the proposition as to whether the direct actions of, in this case, the respondent, to take up the example your Honour put to me before, whether he commits perjury in court or then, after the trial, throws away his hard won right of acquittal by saying something to the press, that there is still, in my submission, that exception that he has himself done actions which leave it open to be relitigated and that seems to be the basis why perjury is regarded as an exception to the general rule of finality. 

That seems to have been taken up by Justice Jacobs in The Queen v Storey (1978) 140 CLR 364 at 409. The first paragraph on the top of that page, last sentence, his Honour said:

The determination in the earlier trial that all the elements were not proven against the defendant must be accepted as a correct finding.

GLEESON CJ:   What page?

MR BYRNE:   Page 409, your Honour.  At the top of that page, it is the end of the first paragraph.  His Honour then goes on to say:

The only possible exception to this rule is where in the later trial the defendant is charged with an offence consisting of an act or acts which caused or may have caused the jury in the earlier trial to determine an element or elements of the offence in his favour.  A charge of perjury committed in the course of the earlier trial is an obvious example.

That supports, in my respectful submission ‑ ‑ ‑

GAUDRON J:   It does not exactly support what you have sought to do in this case.  First of all, it is by no means a dogmatic statement; it says it is a “possible exception”, and what the statement then is referring to:

consisting of an act or acts which caused or may have caused the jury . . . to determine an element or elements . . . in his favour. 

It is not talking about, is “charged with an offence consisting of” the denial on oath of guilt.

HAYNE J:   And it must be read in light of what his Honour went on to say, in the next paragraph, about single issue trials and can the single issue be traversed in a later proceeding, where his Honour says:

I do not think that any short definitive answer can be given to that question.

May be that is why we are here, Mr Byrne.

MR BYRNE:   One of the reasons, your Honour.

GLEESON CJ:   Does he deal with the present problem, on the bottom of page 410 and the top of page 411, in the paragraph commencing with the words “Upon analysis”.

MR BYRNE:   Bear with me, if your Honour pleases.

GLEESON CJ:   Why is that not this case?

MR BYRNE:   My answer to that is that Storey’s Case was dealing with not a charge of perjury.

GLEESON CJ:   No, why is not the principle stated in the paragraph commencing with the words “Upon analysis”, if it is correct, a principle that covers this case?  It gets back to the elements of the offence.

MR BYRNE:   Your Honour, I can only answer it by saying that what his Honour was saying there must be read in the context of what the central issue was in Storey’s Case.  His Honour had already dealt with what, it is submitted, is the exception in the case of perjury, but in Storey’s Case the issue was where there had been a trial for interrelated offences, that it was an acquittal by the jury in respect to some of those offences and a hung jury in respect to the others.  On the retrial, the issue which came all the way to this Court, was the admissibility and purpose of the admission of the evidence in respect to the offences of which Storey had been acquitted, and it is in that context which, in my submission, his Honour is there speaking of the double jeopardy principle.  One could not go behind, naturally, the acquittals where they are different charges, but the evidence, as the majority of the High Court ultimately held, was admissible for other purposes, but that is quite a different case to where a charge is one of perjury.

GLEESON CJ:   It is common in drug misuse and trafficking legislation to have an extended definition of “supply”.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   And one of the forms of supply or sometimes called “deemed supply”, is having possession of a quantity for the purpose of supply.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Suppose a person is charged with supplying a prohibited drug, the allegation being of a deemed supply of the kind that I have just mentioned, that is, possession with a view to supply, and it does not matter whether the person is acquitted or convicted, for the purposes of my question.  Suppose the person, having been tried on that charge and either acquitted or convicted, is later charged simply with possession, what then?

MR BYRNE:   One would expect the court to stay that prosecution.

GLEESON CJ:   What, on discretionary grounds or on a basis of a plea of autrefois acquittal or autrefois convict?

MR BYRNE:   On perhaps both of those bases but certainly the discretion would be raised, but on the example your Honour gives me it may well be the further ground of autrefois convict or acquit.

GLEESON CJ:   Have you access to the Australian Criminal Reports here?

MR BYRNE:   In the Court?

GLEESON CJ:   Yes.

MR BYRNE:   I believe so, your Honour.

GLEESON CJ:   You might over the adjournment have a look at the case of The Queen v Dodd (1991) 56 A Crim R 451, which is a decision of the Court of Criminal Appeal of New South Wales dealing with a drug problem of the kind that I think I just put to you.

MR BYRNE:   Thank you, your Honour.

GLEESON CJ:   You might also like to look over the adjournment at Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502.

MR BYRNE:   Reliance was placed by the Court of Appeal in the present matter on what was decided in R v Storey (1978) 140 CLR 363.  Specifically reference was made to a passage by Sir Garfield Barwick as to the correct principle.  That is set out at page 1297 of the record book.  It is at page 372 of the report, whichever is easier for your Honours.  Again, not read in context, in my respectful submission, that passage is against the proposition which is being put forward this morning, but the context is that it was not dealing with perjury; it was dealing with the admissibility of evidence as challenging a prior acquittal on a subsequent trial for a different offence.  Quite, in my respectful submission, a different proposition.

GAUDRON J:   That principle carries over.  It is not one that could be complied with in this case, is it?

MR BYRNE:   No, your Honour.  Before I leave Storey’s Case, could I take your Honours to page 380, the judgment of Justice Gibbs, as his Honour then was, and this is in the context that the court is dealing with the issue estoppel, and his Honour at about point 7 on the page deals with arguments for and against the existence of such a doctrine, and he says:

The third objection to the application of the doctrine in criminal cases is that the doctrine is an artificial one and may require a judgment to be given contrary to overwhelming evidence.  In civil cases this is justified by the principle that there should be finality in litigation.  In a criminal case, however, different considerations apply.

And this is the matter raised by your Honour Justice Hayne with me this morning.

In a criminal case, however, different considerations apply.  A jury may decide in favour of an accused person on a particular issue simply because a reasonable doubt has been raised, and it would not seem just that in those circumstances the issue should thereafter be treated as conclusively established in favour of the accused.

His Honour later goes back to that at page 388 about point 8, saying that he, at least, finds those considerations persuasive.

HAYNE J:   But is there a distinction to be drawn between preclusion as to an issue and preclusion as to the ultimate issue of guilt or innocence?  That is, is there to be a distinction drawn between, “I was at RAAF Edinburgh”, and the statement, “I am not guilty of the offence with which I am charged.”?

MR BYRNE:   That is the question.  The answer is that perjury is a general exception and it matters not whether the perjury - if the perjury was committed in the course of, and for the purpose of, attempting to persuade the jury.

HAYNE J:   And thus, in a single issue trial you say you can put the accused up again on perjury.

MR BYRNE:   Quite so.  It would not make sense, in my respectful submission, if one could be tried on all issues except the ultimate issue for perjury, that one is given a blanket immunity if, in a single issue trial or if that is the only one raised, that he or she has that immunity.

The only other reference I could find in respect to the actual exception is in Weaver v Law Society of New South Wales (1979) 142 CLR 201, commencing at the bottom of 206. His Honour Justice Mason, as his Honour then was, was, in effect, speaking for this Court in giving judgment and he deals with the view taken, but then goes on to say:

On the other hand, in criminal proceedings an earlier acquittal cannot be re-litigated (Reg v Storey) though a prosecution for perjury may be maintained in respect of the giving of false evidence which secured that acquittal.

So again there seems to be, and we rely upon this, an exception recognised in this Court for where there has been perjury committed in the course of a criminal trial and that is the exception which has been relied upon in this case.

GAUDRON J:   But it is a question as to the width of that exception, is it not?  If you look back to what was said in Storey, I think, by Justice Mason, when he was analysing issue estoppel, there is a clear recognition that the prosecution or the prosecuting authorities have been prevented from relitigating matters where that would challenge an acquittal.

MR BYRNE:   That is accepted as the general proposition, your Honour.  What we say is that that general proposition is subject to the exception of perjury.

GAUDRON J:   Yes, but the exception – well, you have to say that when it is no principle.  I mean, it is no principle, on that basis.  If you are right, any person who is acquitted and who goes into the witness box and affirms his plea of not guilty under oath or maintains his plea of not guilty under oath, which is invariably what happens, can be prosecuted again for perjury on the exact same evidence, it would seem, you must be right.  I mean, unless the exception in relation to perjury is narrowed to the situation where the evidence is material, but does not assert guilt of the offence of which there has been an acquittal, the principle that the prosecuting authorities can be prevented from relitigating a person’s guilt of a charge of which he or she has been acquitted is a mere elusion, is it not?

MR BYRNE:   The answer to that, your Honour, would be that if the prosecution attempted to charge someone with perjury based on your Honour’s example, on the same evidence for which an acquittal was gained, then that would be a clear abuse of process.

GAUDRON J:   Why?

MR BYRNE:   Because the court’s processes are being misused, to put it in simple terms.

GAUDRON J:   I am asking you as a matter of principle.  There is a requirement of consistency of principle.  Principles do not come into conflict in the law.  The fundamental principle must be ascertained, identified and worked out.  Now, why would it be an abusive process?  An abusive process is no mere discretionary thing.  It does not depend upon any idiosyncratic notions of justice at all.  Now what is the principle that would stop it if it was the same evidence?  And, what is the principle that would allow that prosecution if the evidence is different?  Query then, what is different?  You know, we better take those step by step, I think, Mr Byrne.

MR BYRNE:   Certainly, your Honour.  In respect to the first where there is no additional evidence, then it is somewhat difficult for me to formulate the principle, but from first principles a court would not allow someone to be put on trial to go behind the acquittal on the exact same evidence for which that trial happened.

GAUDRON J:   So you concede the exception, even if it has not been fully articulated, is not as wide as a bald statement that a prosecution for perjury may be maintained in the respect of giving of false evidence which secured an acquittal.  The exception is not that wide.  I am reading there from Weaver.

MR BYRNE:   Yes, I understand that, your Honour.  The subsequent cases, particularly El‑Zarw in the Queensland Court of Appeal which analysed the decisions, did, as your Honour is putting to me, in effect say that one could not proceed in those circumstances; there needs to be something else.  It is not that simple.

GAUDRON J:   The exception is not as wide as is stated in Weaver.  Can we accept that?

MR BYRNE:   Yes, your Honour.

GAUDRON J:   Then what do you say the exception is?

MR BYRNE:   There must be new evidence, and how one categorises that new evidence, be it substantial, significant, substantially different, all seem to be interchangeable phrases in the authorities, but there needs to be evidence different from and over and above what was used at the initial trial.

GAUDRON J:   If you would accept for one moment what I put to you earlier, that we strive for consistency in the law, what is it that stops a prosecuting authority appealing against an acquittal on the grounds of fresh evidence and why does that not carry over to the narrower exception which you now accept?

MR BYRNE:   I can only answer that by saying – and I use the analogy put to me by Justice Hayne before – if an accused stands mute in a trial and is acquitted, then he or she has done nothing to in effect activate any further proceedings against him or her.  But if that person were to either in the course of the trial or subsequently ‑ ‑ ‑

GAUDRON J:   But if a person stands mute, he or she cannot be charged with perjury at all, so that does not deal with the nature of the exception or the width of it.

MR BYRNE:   But your Honour’s question is to fresh evidence in respect to an acquittal.

GAUDRON J:   Yes.

MR BYRNE:   So, consistently in principle, I would say that there fresh evidence takes you nowhere and similarly fresh evidence would take you  nowhere if there was the bare acquittal and no perjury.

GAUDRON J:   Let us assume there was an acquittal and the fresh evidence suggests perjury.  Why can you not get the acquittal set aside?

MR BYRNE:   Because of autrefois acquit.

GAUDRON J:   Is that right?  Why is it fundamental to the law that Crown appeals are limited statutory creatures, the terms of the statutory provisions being provisions which we now know will be strictly construed?  There is some underlying common law principle that we have to come to grips with.

MR BYRNE:   I am probably not answering your Honour well, but the underlying common law principle in that case seems to be that one cannot be tried again for the same offence of which one has been acquitted or convicted, be there fresh evidence or otherwise.  That is the end of the line and that is the principle.

GAUDRON J:   As a matter of fact that is what you were doing with this perjury charge.  Albeit that you may end up with a different conviction, that is what you wanted to do.

MR BYRNE:   And that is why we say – and, as your Honour says, we must say – that there is an exception where a positive action such as committing perjury is able to be litigated.  It is not a question ‑ ‑ ‑

GAUDRON J:   But you do not accept that it is in every case that perjury can be litigated?

MR BYRNE:   The authorities are clear that the courts would stop ‑ ‑ ‑

GAUDRON J:   Only when you have a better prosecution case than you had at the time of trial is basically what you are saying.

MR BYRNE:   That probably summarises it, your Honour, yes.

GAUDRON J:   That sounds very much like pragmatism, not principle, does it not?

MR BYRNE:   There must always be factual distinctions drawn.  The principle, in my submission, is if perjury is an exception, it is just a question of whether ‑ ‑ ‑

GAUDRON J:   It cannot be simply, can it, because you have a better prosecution case now than you had at the time of trial?  That cannot be the nature of the exception, can it? 

MR BYRNE:   To use the example that your Honour put to me before, as I recall, that if someone walked out of court on a one‑issue trial and confessed of their involvement in the crime, is that such that the perjury can be re-litigated?

GAUDRON J:   There may be other means of dealing with that besides perjury. 

MR BYRNE:   One cannot recharge the person for the crime because the autrefois provisions apply.  One is left with perjury and that seems to be the reasoning in the Scottish case of Cairns.

GAUDRON J:   I am querying that premise that one is left with perjury in the case of the person who boasts.  That may really amount to a contempt of court for which the person could be punished.  It would be bringing the judicial processes into disrepute whether or not the confession was true.  You see, you are assuming in your analysis of all of this that the courthouse door confession is true.  It may not be.  But whether it was true or not, would there not be a contempt of court charge available in those circumstances?

MR BYRNE:   I have not turned my mind to that but it would certainly ‑ ‑ ‑

GAUDRON J:   For which you would not need to prove the truth or falsity of the statement.

MR BYRNE:   There is no contempt of court, on my limited understanding of the proposition, if, say, the confession was made outside the face of the court some distance and time separated.

GAUDRON J:   Why not?  Bringing the judicial processes into disrepute, scandalising the court, is probably more aptly an aspect of bringing the judicial processes into disrepute.

MR BYRNE:   It is certainly not a contempt in the face of the court unless one goes to ‑ ‑ ‑

GAUDRON J:   I know.  One does not have to have a contempt in the face of the court.

MR BYRNE:   But there are issues, as your Honour has properly said, as to whether or not it is true.

GAUDRON J:   No, I am saying on a contempt charge it would be irrelevant whether the confession was true or false.  It would not matter whether the subsequent confession was false.  It might make the contempt all the greater if it was.

MR BYRNE:   Assuming the existence then of contempt, what of other examples?  This is why it is difficult to relate factual examples.

GAUDRON J:   That is why I am saying you may not need perjury to deal with the affront that seems to have formed part of the reasoning in Humphrys by reference to the Cairns decision.  It seems to be part of your argument, although it is not part of your case in this case.  Part of your argument is if perjury is not available, the courts are powerless in the Cairns situation.  I think you need to come to grips with whether that proposition is correct.

MR BYRNE:   But the proposition is a factual one.  Assume a different example.  If the evidence establishes by an eyewitness – and I think that was put to me before ‑ ‑ ‑

GAUDRON J:   That is a different case.  It seems to me at least one plank in your argument has to be that the courts should not be powerless in the Cairns situation.  Your next proposition must be, if you want to abandon that, the courts should not be powerless when the prosecution is in a position to make a better case than it could at the first trial.  That is not self‑evidently correct or indeed persuasive, whereas there is some persuasion in the proposition that in the Cairns situation the courts should not be powerless to act.

MR BYRNE:   The correct situation, in my submission, is where there is significant new evidence which can persuade ‑ ‑ ‑

HAYNE J:   That really is a point which emerges quite plainly out of her Honour’s examples, is it not?  If you try to drive principles of double jeopardy by reference to what evidence is available, you are on a very infirm basis.  Principles of double jeopardy in all their many forms are principles that require attention to be focused not on how you go about proving things but on what it is that you have to prove.  That is, they require attention to the elements of the offences that are being compared, one being said to be doubling up on the earlier one.  Saying whether there is a better case, more evidence, “We can go about it differently”, is really not only infirm but an invitation, is it not, to an unscrupulous executive?             I am not for a moment to be taken as suggesting that that emerges in this case or any case with which we have dealt, but it would be an invitation for an unscrupulous executive to simply keep prosecuting people until they get a verdict that they like.  That is something the courts have set their face against for a very long time for very good reason. 

Do you not have to look at the elements of the offence?  In the example her Honour Justice Gaudron gives to you, if your concern is about affront to the system, then look to that aspect of the matter, not to running perjury trials.

MR BYRNE:   I take what your Honour says to me, but the issues develop in this way.  The issue is whether perjury is at any time an exception to the finality rule in criminal cases.

HAYNE J:   A view that might be worth considering is that you test it by reference to the elements of the offence of perjury that is charged.  If, for example, the element of the offence that is charged in perjury is that you were guilty when you said you were not, there is an obvious collision between the perjury charge and the earlier charge.  If by contrast the perjury alleged is not in that form but is, “You falsely swore that you were at RAAF Edinburgh”, then at least the collision is not evident.  It may not even be sufficient to resolve it at that level, but at least the focus is not on how you prove it but what is it you are setting out to prove.

MR BYRNE:   But if that is the situation, one is assuming again what I have said, that perjury is an exception.  One then goes to the next step.  Where is it an exception?  It is an exception if one commits perjury about an issue which is not the central issue of the case, namely whether one was or was not at a particular place.  If that is able to be litigated, one then has to deal with the element offence which your Honour gives to me and say that if that is the issue, that that cannot be litigated because one is the lesser offence, if you like, or the lesser action is an exception, but the major one is not.

HAYNE J:   But in the extreme case with which we are now dealing there is, is there not, an evident collision between the elements of the offence of perjury charged and the elements of the offence of which the man was acquitted by entry of verdict of acquittal on appeal?

MR BYRNE:   In general terms, yes, I accept that.

HAYNE J:   There would therefore at the end of the legal process be conflicting decisions of different courts on a single issue, namely:  did he kill the deceased?

MR BYRNE:   In effect, yes.  The difference is there is a verdict of acquittal on the murder but there is a verdict of guilty on the perjury.  I accept there is that inherent ‑ ‑ ‑

HAYNE J:   And the logical resolution of that apparent conundrum to which you must ultimately revert is that acquittal is not any more than that there was a reasonable doubt entertained.  Can you point to anything in the authorities other than some statements in Mraz, perhaps some statements in Storey, which suggest that a verdict of acquittal is to be given that limited notion or limited significance of, “Well, there was a reasonable doubt”.  I would have thought Rogers was squarely against you on that but perhaps I am wrong.

MR BYRNE:   Yes, the issue does come back to whether one can – where there is the collision.  That is this case, so I perhaps do not assist my submission by coming up with different examples because that is the issue here, whether one can do that.

GLEESON CJ:   Have you looked at the authorities – and I think there is a fairly recent authority – on the question of a person having been charged with and acquitted of murder then seeking to inherit under the will of the alleged victim and the question being decided in a civil court whether or not the inheritance can be denied on the basis that the beneficiary murdered the testator?

McHUGH J:   That was decided in this Court in Helton v Allen 63 CLR.

HAYNE J:   Re-litigated in Victoria in an estate name which begins with P.  The name of it I cannot bring to mind, but late seventies, early eighties.

GLEESON CJ:   And I think there was a New South Wales case relatively recently.

HAYNE J:   The notion of a murder trial on affidavit on the balance of probabilities had a certain piquancy about it and entertained the Bar for a little time.

McHUGH J:   Helton v Allen was a Queensland case and you had two juries.  There was a civil jury in a probate suit which found that he did murder the deceased.  He had been acquitted earlier in the criminal proceedings.

MR BYRNE:   On the basis of different standards of proof presumably?

McHUGH J:   Different standards.

GUMMOW J:   At page 11G of the report of Hymphrys [1977] AC, there is a reference to a book, Friedland on Double Jeopardy.  Have you had a look at that?  We have been referred to it before in other connections.

MR BYRNE:   It is also referred to in paragraph 17 of the judgment of the Court of Appeal, your Honour.

GUMMOW J:   Is there anything in there that helps?

MR BYRNE:   There is an analysis of some decisions.  In fact, there is disagreement with one of the analyses in – I thought it was one of the judgments in this Court, but I would have to check that.

GUMMOW J:   In your draft notice of appeal at page 1319, I am not at all sure that you are dealing with what appears to be both branches of the Court of Appeal’s decision, namely unsafe and unsatisfactory, looking at the evidence, and on the other hand, should have been stayed as an abuse of process.  Do you have a ground of appeal that would deal with the latter, namely what we have been debating this morning?

MR BYRNE:   The abuse of process?

GUMMOW J:   Yes.

MR BYRNE:   That is meant to be encompassed by ground b).

GUMMOW J:   That is not what it says.  Is it going to be reformulated or do we have to write it out again for ourselves?  If you want to reformulate it, I suppose you could do so at some other time, not necessarily on your feet.

MR BYRNE:   I would appreciate the liberty of being able to do that, your Honour.

McHUGH J:   Mr Byrne, earlier this morning i referred to Mr Meagher, the solicitor, and what had happened in his case.  I thought it was a perjury case but it was not a perjury case.  It is R v Dean and Meagher (1896) 17 LR NSW 132.  Dean had been convicted of attempting to poison his wife with intent to murder, had been convicted and sentenced to death.  Subsequently a royal commission pardoned him but then later Dean and Meagher, his solicitor, and others were charged with conspiracy to pervert the course of justice and convicted of conspiracy to pervert the course of justice.  So in one sense there was a re-run of the original trial, even though there was a pardon in respect of it.

MR BYRNE:   Thank you for that, your Honour.

GLEESON CJ:   In Grady v Corbin 495 US 508 at 522, a 1990 decision of the Supreme Court of the United States, the majority held that “the Fifth amendment barred any subsequent prosecution in which the government, to establish an essential element of an offence charged in the prosecution, will prove conduct that constitutes an offence for which the defendant has already been prosecuted”. It might be worth a look at that also.

MR BYRNE:   Thank you, your Honour.

HAYNE J:   We looked at Grady v Corbin in Pearce as well.

GUMMOW J:   Pages, 619, 642 and 643 of 194 CLR.

HAYNE J:   United States v Dixon, therefore, (1993) 509 US 688, I think, overrules Grady v Corbin.

MR BYRNE:   Your Honours, I am not certain that I can further advance the argument on that proposition.

GLEESON CJ:   Well now, in relation to the progress of this matter, you have been dealing so far with, what might be called, the principles according to which the Court of Appeal approached or should have approached the exercise and you have not got on to the ‑ ‑ ‑

MR BYRNE:    ‑ ‑ ‑ the other matters.

GLEESON CJ:    ‑ ‑ ‑the evidentiary matters.

MR BYRNE:   That is so.

GLEESON CJ:   It may be that the most convenient course for us to take, bearing in mind that this is a special leave application, would be to hear full argument from both sides on that first issue and then decide for ourselves the future course of the matter.

MR BYRNE:   I am content with that.

GLEESON CJ:   Have you said everything you want to say on that first issue?

MR BYRNE:   I have, thank you, your Honour.

GLEESON CJ:   Well then, we will adjourn now and after lunch we will hear what Mr Griffin wants to say.

GAUDRON J:   Perhaps you may think you have said everything you want to say, but ‑ ‑ ‑

GLEESON CJ:   You have been given some homework over the luncheon adjournment.

GAUDRON J:   That is right.  I think you might like to comment ‑ I think it would be in your interests to look at Pearce and the American decisions over the lunch hour and tell us what you make of them.

MR BYRNE:   Yes, I am happy to do that.  Could I perhaps obtain from one of your Honours’ associates the full US references; I am not sure I took those down correctly.

GAUDRON J:   I think you will find them all in Pearce.

McHUGH J:   Yes, they are referred to in Pearce.

GAUDRON J:Which is at 194 CLR.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   I thank your Honours for the opportunity to look at those cases over the adjournment.  May I deal with two of the cases where analysis was carried out of the appropriate test and also of the relevant United States authorities.  If I could go firstly to the analysis carried out by your Honour the Chief Justice sitting in the Court of Criminal Appeal, New South Wales, and that is in the case of Dodd v Dodd (1991) 56 A Crim R 451. Your Honour, as you put to me this morning, pointed out, the position where there were included or aggravated forms of offences being charged, and after analysis of page 456 going over to 457, took the view that:

successive prosecutions under two different statutory provisions do not constitute double jeopardy if each statutory crime contains an element that the other does not.

That test was said to be consistent with the language of Sir Samuel Grifftith, when he said:

the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first, then there is double jeopardy.

That analysis, with respect, seems to have flowed on to the analysis carried out by members of this honourable Court in R v Pearce (1998) 194 CLR 610. There are only two passages I would seek to refer your Honours specifically to. The first is at page 618, paragraph 24 of the judgment of your Honours Justices McHugh, Hayne and Callinan, where this was said:

Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.

So there is that proposition of being identical elements which, in my respectful submission, is not the case in the circumstances here.

HAYNE J:   Is there not an element of inclusion here, the inclusion being the inclusion of the element that the accused did kill the victim?

MR BYRNE:   There might be inclusion but there is no that commonality between all of the elements.  For example, here, the murder is alleged to have occurred in 1973 in Ipswich, time and place.  It contains an element of intention, namely intention to kill or cause grievous bodily harm.  The perjury has elements of a different time and place and also an element of falsely swearing to an issue.  The evidence on the perjury would not prove the murder.

HAYNE J:   References to evidence may mislead I suggest, Mr Byrne.  The critical question is elements of the offences because after all if these things are to be dealt with as pleas in bar they have to be dealt with before evidence is led; true it is perhaps with the aid of committal records, but they have to be capable of conclusion by reference largely to the pleadings that one has in a criminal trial, namely the way in which the indictment is framed.

MR BYRNE:   I accept that, your Honour.

GUMMOW J:   Was there ever any plea here?

MR BYRNE:   Plea in bar?

GUMMOW J:   Yes.

MR BYRNE:   I do not believe there was, your Honour.

GLEESON CJ:   Well, it depends on the nature of those proceedings before Justice Muir.  I am not exactly sure what the formal nature of those proceedings was but he certainly dealt with the question of whether a plea in bar was available.

MR BYRNE:   That is why I phrased it, “I do not believe there was” because it was conducted as a legal argument as to whether there was the availability.

GLEESON CJ:   Or was it some kind of pre‑trial hearing?

MR BYRNE:   It was.  Under the Criminal Code there is provision, section 592A I believe it is, to allow determinations to be made by a single judge or a judge other than the trial judge in fact, prior to the trial and those rulings are binding on the trial judge.

HAYNE J:   No doubt there is, but that does not relieve the courts or those appearing in the courts from paying strict attention to what exactly is being put forward.  If there is a plea in bar to be made it ought to be made.  This ought not to be a matter about which there could be any shadow of doubt.  One should be able to go to the back of the indictment and discover what happened.  Now, can we?

MR BYRNE:   I do not wish to denigrate my learned friends in that respect, but my understanding was there were legal arguments.  I do not recall that there was actually a formal plea in bar entered.

GUMMOW J:   The reasoning seems to have had discretionary elements in it too.  That is what worries me.

HAYNE J:   It would appear from page 3 of appeal book that a plea was not taken until after Justice Muir had concluded what is described simply as section 592A application.  Is that right?

MR BYRNE:   That is true, your Honour.  There is also within that statutory provision power to allow that to happen because prior to the enactment of that provision the trial was not said to commence until a plea was entered.  So the utility was to allow such argument to occur without a plea having been formally entered.

GUMMOW J:   What was sought was a stay, was it not?

MR BYRNE:   Would your Honour just bear with me for a moment?

GAUDRON J:   What happens if you succeed in a plea in bar?  Is the indictment quashed, or is that only when there is a demurrer to the indictment?

McHUGH J:   No, it is a plea in bar.

MR BYRNE:   It is a plea in bar.

McHUGH J:   And you have a trial in respect of it, because there is an issue for the jury or maybe the judge will have to direct the jury as a matter of law that the plea is a complete answer.

GAUDRON J:   But what is the judgment of the court?  Would it be not guilty or would you quash the indictment?

McHUGH J:   I think maybe it is a plea in abatement.

HAYNE J:   I think if the plea is found good, that just answers the indictment.

McHUGH J:   It answers the indictment.

HAYNE J:   It clears the indictment, does it not?

McHUGH J:   It answers the indictment, yes.

MR BYRNE:   That is my understanding, under the Code at least.  If that plea is made and it is made good then that stays, in effect, or stops the prosecution.

HAYNE J:   It concludes it.

MR BYRNE:   It concludes it, yes.

GUMMOW J:   Does not just stay it.

HAYNE J:   No.

MR BYRNE:   To answer your Honour Justice Gummow’s question to me, the judgment in Carroll, that is the pre‑trial ruling, says that it was an application that the prosecution was an abuse of process and, secondly, that certain evidence should be excluded.  That accords at least with my recollection of the proceedings before ‑ ‑ ‑

GUMMOW J:   I know?  The section is 592A, “quashing or staying of the indictment”.

MR BYRNE:   It also allows evidentiary matters to be ‑ ‑ ‑

GUMMOW J:   Yes.  The reason why I am concerned is at one level what you are propounding to us is reasoning which is operative upon evidence; at another level it is operative upon elements of the offence and on another level, in terms of remedy, it is operative upon a discretion or it is operative as a matter of absolute right.  We need to distinguish between all of those things, it seems to me.   Then I do not know quite how it all squares up with what happened here.

MR BYRNE:   Nowhere in the proceedings does there seem to have been an application to stay it as a matter of absolute right.  The section 17 autrefoir argument ‑ ‑ ‑

GUMMOW J:   That is another question.  Another question is the extent to which section 17, if you look at it this way, manifests an undeveloped view, if you like, of what is now involved at common law in these pleas by focusing upon precision offences.

MR BYRNE:   Yes.  My response was ‑ ‑ ‑

GUMMOW J:   And if that in Queensland, because of the statute, is an exhaustive statement, how do you then get these other matters in as a plea?

MR BYRNE:   One does not, or at least that was the course taken here.

McHUGH J:   It would have been open to the accused, would it not, to have pleaded under section 598(2)(c) of the Code?  Section 598(1) says:

If the accused person does not apply to quash the indictment . . . must either plead to it, or demur to it –

and (2) says, among other things:

If the accused person pleases, the person may plead either –

et cetera ‑

(c)  that the person has already been convicted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been convicted of an offence –

et cetera, or that he “has already been acquitted upon an indictment”.  So it would be (d).

MR BYRNE:   I was not attempting to say that could not have been done.

McHUGH J:   No.

MR BYRNE:   But it simply was not done.  That is my understanding of the way the proceedings went forward.

HAYNE J:   And would that operate, or could that operate in respect of a wholly included offence?  Would the words work in a way to give you an available plea under 598A(2)(d) ‑ ‑ ‑

McHUGH J:   I think it is (e) really:

that the person has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that the person cannot under the provisions of this Code be tried for the offence charged in the indictment –

HAYNE J:   So it would be (e).

MR BYRNE:   So it was the whole included offence.

McHUGH J:   Yes.

GUMMOW J:   That would get over 17.

HAYNE J:   Yes, (e) solves that.

GAUDRON J:   What does that relate to, generally?  Are there provisions in the Code dealing with that circumstance, or is it leaving the circumstances in which (e) operates to be determined by the general law?

MR BYRNE:   The latter seems to be the case, your Honour.

GAUDRON J:   I mention that, for example, by reference to a case of Pereira (1988) ALR 217. The passage is at page 220, dealing with an indictment of which the accused was charged with involvement in the importation of cannabis and possession of same cannabis and convictions were entered on both counts, but it is there said:

In so far as the jury might have relied on that possession as an element of the first charge and as the actus reus of the second charge the applicant may have sustained two convictions for the one act.  Whether or not this be so, if both charges relate to the one set of facts and the only issue . . . the preferable course is to charge the second count in the indictment as alternative –

and there is a reference then to Router (1977) 14 ALR.  This notion of double jeopardy seems to extend to the view that you cannot be convicted for two offences for the one act, two separate offences for the one act.

MR BYRNE:   That seems in accordance with what is said in Pearce and in other cases, your Honour, yes.

GAUDRON J:   Yes.  Section 598(2)(e) would seem to leave that notion intact, would it not, at least that notion.

MR BYRNE:   Yes.

GAUDRON J:   And perhaps more.

MR BYRNE:   Certainly that notion.

GAUDRON J:   Yes.

MR BYRNE:   That again seems to be the focus by this Court in Pearce where there is, as I have said, at page 618, paragraph 24, said to be:

sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all the elements of one offence are wholly included in the other.

Then at page 620, paragraph 28, it is said ‑ and this is in the joint judgment again:

The stream of authorities in this country runs against adopting such a test –

that is a test in America ‑

and there is no reason to depart from the use of the test which looks to the elements of the offences concerned.

At least, prima facie, when one applies that test here that the elements are, in fact, different.  So one would need to go to ‑ ‑ ‑

GAUDRON J:   One of the elements of the offence of which he was charged though must be that he killed this young child.

MR BYRNE:   But it is different conduct.  The offence focuses here on the falsely swearing that he did not at a particular time and date, whereas the first focuses on the actual killing.  I accept there is that overlap.

GAUDRON J:   Do we have, being relevant – can I find the relevant form of the indictment in this reprint?

MR BYRNE:   I am not certain about the reprint.  It is certainly in Carter’s Criminal Code which is a loose leaf – it may well be in the bound copy of Carter’s as well.  Form 78, I believe, your Honour, is the form relating to perjury if that is what you are seeking.

GAUDRON J:   Does that form have the statutory basis?

MR BYRNE:   Yes it does.

GAUDRON J:   And what is its basis?

MR BYRNE:   I do not have the provision in front of me, but the provision says, in effect, that one can charge an offence in terms of the form which is provided under the relevant legislation.  It is sufficient to charge it in those terms.

HAYNE J:   Section 564, is it?

MR BYRNE:   It may well be, your Honour.

McHUGH J:   It is Form No 79.

MR BYRNE:   Form 79, I apologise.

GUMMOW J:   Is it section 707?  We need to know the statutory basis of the form and we need to know its content.

MR BYRNE:   My learned friends tell me, and I accept, that it is section 707 and the content is in Form 79.

GUMMOW J:   Section 707 looks to a prescription by rule of court.

GAUDRON J:   What I am thinking is this – I am sorry to be difficult about this – if one looks to 123(1) and subsection (3) of whatever it is that says you can charge in accordance with the Code, then why do you not have to say “knowingly gave false - touching the death” or, something like that, “the question whether he killed Deidre Kennedy, a matter which was material to a question then” ‑ I suppose it is pending – “in the trial of Raymond John Carroll for the murder of the said Deidre Maree Kennedy.”?

MR BYRNE:   The formulation which your Honour gives is, with respect, not dissimilar to the form of the indictment under which ‑ ‑ ‑

GAUDRON J:   Just to tell you what I am doing, Mr Byrne, I am running my finger across the indictment, the finger of my left hand and the finger of my right hand against section 123(1) of the Code, and I am finding what is missing from the indictment is the trial of –“pending in the trial of Raymond John Carroll for the murder of”, and it is at that point that you would ‑ which is the point at which the Chief Justice began questioning you this morning ‑ then see clearly that what you were talking about related to an element of the offence.

HAYNE J:   Though line 3 of the body of the indictment may itself constitute those words.

GAUDRON J:   Yes.

HAYNE J:   Namely, “the trial of Carroll for the murder of one” ‑ ‑ ‑

GAUDRON J:   Yes.

McHUGH J:   And the indictment does depart from the Form 79.  By the way, the basis of Form 79 and its validity are the Criminal Practice Rules of 1900 Order 2 rule 2 which says:

The statement of the offence in an indictment may be in such of the forms in the schedule as is applicable to the case.

MR BYRNE:   Thank you, your Honour.

McHUGH J:   Form 79 speaks of upon a charge of murder:

having been duly sworn, gave evidence on oath as a witness, and then wilfully swore falsely to the effect that (state substance of false evidence):  And that the said false evidence was material to a question then depending [or intended to be raised] in and upon the said arraignment [or trial].

But in substance there seems to be little difference between the two.

MR BYRNE:   I may be able to check on that.  There are fairly recent Criminal Practice Rules.  Whether that has changed the situation I can find out quickly, but it does seem to – I am certain there have been more recent Criminal Practice Rules promulgated than those, your Honour.

GUMMOW J:   There seems to be a lot of authority, Mr Byrne to the proposition that if a person has been acquitted or convicted of an offence, you cannot subsequently charge that person with an aggravated version of that offence.

MR BYRNE:   That seems correct with respect, your Honour.

GUMMOW J:   And if you do there is a plea in bar.

MR BYRNE:   Yes.

GUMMOW J:   I am wondering whether references in those statements of principle to an aggravated version of the offence are merely references to the usual case where the elements of the second offence are more numerous than the elements of the first offence.  The most obvious example of a case such as that is a case of an aggravated offence, like assault occasioning grievous bodily harm as distinct from assault.  I am wondering whether we do not here have a case which is not of a charging of an aggravated offence but in just the same way as the charging of an aggravated offence involves the conclusion that the evidence necessary to support the second charge would have been sufficient to procure a legal conviction on the first.

MR BYRNE:   Except there is certainly additional evidence required in respect to the second charge to make it out, other than what was required to make out the first charge.

GUMMOW J:   That is right, but you could not succeed on the charge of perjury without proving the murder.

MR BYRNE:   In these circumstances, yes.

GUMMOW J:   Yes.  I am wondering whether this is not a case of the same kind in principle as a case of, for example, charging somebody with assault occasioning grievous bodily harm where the person has already been either acquitted or convicted of a common assault.

MR BYRNE:   Your Honour, the abundance of authority to which you refer to seems to be collected on at least one premise, that there is a single act or a time‑related act on which the prosecution focuses.  It is quite different, in my submission, where a matter is complete totally and then there is another element added to the matrix, of which proof must be made in order to make out the subsequent or second offence.  That is different, in my submission, in principle to where there is the single stream of events and the totally included elements.

HAYNE J:   The understanding about single event and multiple charges must at least take some account of what is said in Pearce, must it not?

MR BYRNE:   Yes, your Honour.

HAYNE J:   Where I think the joint reasons may perhaps be taken as directing attention, at least at the level of pleas in bar, to the elements of the offence rather than to the singularity of the event.

MR BYRNE:   That is so.  That was the submission I attempted to make earlier, because there is the difference in elements between the two offences.

HAYNE J:   But recognising the possibility of the included offence.

MR BYRNE:   Quite.  The cases I was attempting to respond to were cases such as that described in Dodd v Dodd where there was the causing of grievous bodily harm with intent, plus the entering with intent and subsequent causing of grievous bodily harm.  So there is the one single act. Similarly in the EPA Case, there was the one action of discharge; whether it was double jeopardy under different statutory provisions.  Here it is different because there is a different time and place primarily as well as the quite separate element of falsely swearing.

HAYNE J:   An unlike Storey where the offence charged relevantly was rape and the focus turned on the alleged abduction, not an element of the

offence of rape, though obviously relevant to the circumstances alleged in the case.

MR BYRNE:   The lack of consent, perhaps.

HAYNE J:   Yes.

MR BYRNE:   But again - I am grateful to your Honour for saying that because that is the focus of the judgments in Storey.  It was quite different in attempting, as in here, to go behind the verdict as it was in Storey where the statements relied upon in the Court of Appeal are set out.  Unless there is something further, I do not believe I can add to that aspect.

GLEESON CJ:   Thank you, Mr Byrne.  Yes, Mr Griffin.

MR GRIFFIN:   Thank you, your Honour.  Could we begin by referring you to what was the essence of the trial, and it is to be found in the passage in the summing up by the learned trial judge at record 1173.  This was the focus of the perjury trial, commencing at about line 28.  It is to be found in volume V of the application book.  The passage that commences about halfway down the page, 1173.

Your Honours, this is the passage which was focused upon by Mr Justice Williams in the Court of Appeal.  It is the passage which, in our submission, shows that the perjury trial was nothing less than a retrial of the trial of the murder than the original trial.

The only real issue –

said the trial judge to the jury:

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 –

and so on.

GLEESON CJ:   Well, as at present advised, I would have thought you were right when you said it was nothing less than a retrial for murder, but it was something more, was it not?  It was an allegation that he murdered Deidre Kennedy, and what is worse, he told a lie about it.

MR GRIFFIN:   Yes, that is so.  It contained an extra ingredient, but the central focus of the trial was a retrial for the trial of murder.

GLEESON CJ:   That is why I wonder whether, in quality, it is not like charging an aggravated offence, having already got a conviction or an acquittal on a lesser offence.

MR GRIFFIN:   Looked at in that way it has ‑ ‑ ‑

GLEESON CJ:   Obviously, perjury is not an aggravated form of murder, but if you ‑ ‑ ‑

MR GRIFFIN:   It is not a more serious offence, but, perhaps, aggravated in the sense that it ‑ ‑ ‑

GLEESON CJ:   Well, if you substituted for the word “aggravated” the word “elaborated”.

MR GRIFFIN:   Yes, an offence which contained an extra ingredient containing within it the basic ingredients of the original charge and, at that point, by the time the charge had been preferred and the matter came to the Supreme Court, the respondent, Mr Carroll, had been acquitted in the Court of Appeal.  That meant that the question put to the jury whether he did, in fact, kill Deidre Kennedy had been resolved in his favour by the Court of Appeal.  The Court of Appeal had acquitted him of that count.             What this trial was, containing as it did an extra ingredient of the telling of a lie, was a re‑litigation of that central issue.

HAYNE J:   Without going into the detail of that first Court of Criminal Appeal decision, was it founded on the proposition that no jury, properly instructed on the evidence led at trial, could have been persuaded beyond reasonable doubt that the accused was guilty?

MR GRIFFIN:   Yes.  Your Honour, it was founded on an utter unsafe and unsatisfactory basis on a conclusion based on an analysis of the evidence in the first trial and, furthermore, there was not a fraud perpetrated on that court, if this is what the Crown says, by the perjury, for it is clear from the judgment in the original Court of Appeal, that that judgment, or the result, the acquittal, was not affected by anything that Mr Carroll said; in other words, was not affected by his assertion that he did not kill the child.

GAUDRON J:   But there is a further wrinkle, I think, Mr Griffin.  Having given that evidence that he did not kill the child, the verdict of not guilty must also comprehend a finding that it was not established beyond reasonable doubt that he lied.

MR GRIFFIN:   Yes, your Honour, and that was based ‑ ‑ ‑

GAUDRON J:   And I do not know where that takes you, but, quite apart from the elements, you may have a factual issue determined about the lie in the first trial that brings into play precisely the same considerations as were involved in Rogers.

MR GRIFFIN:   Your Honour, that was to be our submission, in fact.

GAUDRON J:   I am sorry to add to ‑ ‑ ‑

MR GRIFFIN:   That the fact that the Court of Appeal did not use that as an ingredient in the course of its findings or its determination on the basis of its being unsafe and unsatisfactory must mean that the determination or the entry of a verdict of acquittal carried with it implicitly an acceptance of the statement made at the original trial.

HAYNE J:   Once you are off into the difficult territory of where the burden of proof lies, Mr Griffin, that is very slippery territory, surely.

GAUDRON J:   It is not an acceptance of the statement, but it is an acceptance that it was not then established beyond reasonable doubt that he had lied.

HAYNE J:   Just so.

MR GRIFFIN:   Yes, perhaps that is the best way of putting it. your Honour.  Yes.

GAUDRON J:   And to charge him that he did lie was to controvert something that was necessarily found by the acquittal.

MR GRIFFIN:   Your Honour, we put it in this way, that not only by that verdict of acquittal in the Court of Appeal had the Crown lost that ultimate issue which it sought to retry, that is, whether Carroll was responsible for the killing, but it also lost that issue as to whether the accused lied on the murder trial because of what flows from the acquittal.  That is our submission.

HAYNE J:   Now, did your client enter a plea in bar?  Are these arguments pitched at the level at which they have been debated, properly open?  At some point we have to at least look at how all these issues arise, do we not?

MR GRIFFIN:   Yes.  Your Honours, I did not appear for Mr Carroll at trial.  I was present for the 592A application so I can speak personally as to that.  There were a number of issues controverted during the 592A application; issues as to the admissibility of evidence, issues as to a stay of proceedings on various bases, one of which was, for example, the ability to have a fair trial because of the effluxion of time, the difficulty of cross‑examination of witnesses and witnesses who were both missing and dead in a variety of categories.

HAYNE J:   Which part of 592A was engaged; which aspect of the provision do you say was engaged in the debate about whether principles, which the judge described as the principles of res judicata or autrefois acquit, prevented him from being tried again?

MR GRIFFIN:   The part of the section which deals with the applications is subsection (2) and it commences with the words “Without limiting subsection (1)”.  There are then a number of categories and it seems that those categories are unlimited, in any event.  Paragraph (a) was that part of subsection (2) which was engaged in that particular aspect.

HAYNE J:   “Quashing or staying”.

MR GRIFFIN:   “Staying”.

HAYNE J:   Well, that seems to put you into discretionary territory.  In the end, it may not greatly matter, but there are surely cases where, in which close attention to what is being done and how it is being done is critical, as, for example, if there were to be issue joined between Crown and accused at this stage of the proceeding about some element of fact.  Is that to be tried by a jury?  Is it to be tried by a judge?  If parties simply slide through saying, “This is an application under 592A”, these problems are obscured and it is a recipe for catastrophe.

MR GRIFFIN:   Yes, your Honour.  Well, my recollection is that that was the basis upon which it was put and probably on the basis that there did not seem to be any other form by which the process could be undertaken.

GLEESON CJ:   It is the basis on which the case was decided in the Court of Appeal as appears from the first sentence of paragraph [72] on page 1313.  The conclusion was that:

the trial should have been stayed as an abuse of process. 

And then, in addition, the court said, when you carefully consider the evidence:

the verdict . . . was unsafe and unsatisfactory.

MR GRIFFIN:   Yes.

GLEESON CJ:   Now, the submissions that Mr Byrne has not yet had an opportunity to put address the second of those two grounds, but your principal argument at present, as I understand it, is directed towards supporting the first of them.

MR GRIFFIN:   Yes, that is so.

GLEESON CJ:   But, we have passed the point, have we, of anybody ever arguing that there was an available plea in bar because there was no such plea?

MR GRIFFIN:   It, at least, was not considered to be available.

GLEESON CJ:   Well, it looks as though it was considered by Justice Muir in the sense that he devoted part of his reasoning to the question of whether there was a plea of autrefois acquit available.

MR GRIFFIN:   Those were the issues that were argued.

GLEESON CJ:   Without the plea ever having been entered.

MR GRIFFIN:   Yes, that is so.  So, perhaps, in a sense, there was ‑ ‑ ‑

GUMMOW J:   In anticipation, as it were, of that happening.  Is that how it is done?

GLEESON CJ:   This was before an arraignment, was it?

MR GRIFFIN:   Before arraignment.  Yes.

GLEESON CJ:   Before arraignment.  So the proper time to enter the plea would have been upon arraignment, would it not?

MR GRIFFIN:   Yes, that is so.

McHUGH J:   The only plea on arraignment was the plea of not guilty.

MR GRIFFIN:   That is correct.

GLEESON CJ:   Because the judge had previously ruled.

MR GRIFFIN:   Had previously ruled that there was no basis and the decisions which are given under 592A are binding upon the trial judge and are binding upon the conduct of the trial.

GLEESON CJ:   Yes.  There has been some comment on them in the past, but these are procedures that are adopted in many jurisdictions now to avoid that business of having to send juries in and out.

MR GRIFFIN:   It is a purely practical consideration where matters of law are dealt with at a time well prior to the trial so that juries are not inconvenienced.

GAUDRON J:   Well, it is as if it were a pre‑emptive demurrer to your plea in bar.

MR GRIFFIN:   I would be perfectly satisfied with that description.

HAYNE J:   You knew that was what you were doing, Mr Griffin, of course.

GLEESON CJ:   At all events, you want to submit that if you did have available to you a plea in bar and not merely a discretionary basis for a stay of proceedings, then the course that was adopted before trial should not now prevent you from relying on that?

MR GRIFFIN:   Yes, I submit that, your Honour, and the argument was directed essentially to, as it were, a plea on bar, as if it were, and considerations of res judicata and double jeopardy were raised.

Your Honours, as to paragraph [72] ‑ and I am keenly aware that, at this point, my response is to be to this issue that has been raised with Mr Byrne ‑ our submission is that there was a two‑strand approach in any event in this judgment; that the Court of Appeal attempted to deal with the question of double jeopardy and whether it was breached, but collaterally, with the factual considerations that it looked at there, deal equally with considerations of the sufficiency of evidence.

Without going to the passages, we submit that there is an attention to each strand of the prosecution case which led to the conclusion at paragraph [72] that in any event:

the verdict . . . was unsafe and unsatisfactory ‑ ‑ ‑

GUMMOW J:   Yes, but what I am not clear about, is there any area within the notion of abuse of process, but outside your plea in bar or, are the two treated in this judgment the same?

MR GRIFFIN:   There are two separate conclusions about abuse of process.

GUMMOW J:   In other words, assume you were wrong on plea in bar, would you still have an area of abuse of process?

MR GRIFFIN:   Yes.

GUMMOW J:   What is the content of that?

MR GRIFFIN:   That is the fairness or unfairness of the trial and towards the end of the judgment his Honour renumerated ‑ ‑ ‑

HAYNE J:   Too long elapsed.  Is that the ‑ ‑ ‑

MR GRIFFIN:   There were a number of considerations which included witnesses who have died whose evidence would have been worthy of investigation.  We have elaborated about those in the part 5, I think, of our outline, but a considerable number of issues of a variety of types which led the court independently to a view that the indictment should have been stayed by virtue of its being unfair; considerations, for example ‑ ‑ ‑

GLEESON CJ:   There may be a risk of getting a bit muddled here, but the Court of Appeal never considered that you had a plea in bar available to you, did they?

MR GRIFFIN:   No, it was argued on the trial as a basis of the appeal.

GLEESON CJ:   And there appear to be at least two strands of reasoning in their abuse of process conclusion.

MR GRIFFIN:   That is so.

GLEESON CJ:   One being the circumstance that there was an element of double jeopardy involved and the other being the delay and imperfection of evidence and so forth.

MR GRIFFIN:   Yes, but, your Honour, I think there is an attempt, at least in the judgment, to make that distinction and that distinction appears in paragraphs [71] and then [72].  Could I just deal with that?  In paragraph [71], about halfway into the paragraph, his Honour said:

It is again sufficient to say that the submissions with respect to the aspect of delay –

which is a composite phrase encompassing all of those arguments which we advanced on appeal –

tend to support the conclusion that the verdict of the jury in all the circumstances was unsafe and unsatisfactory.

But then his Honour went on and discussed the stay:

as an abuse of process.  But in any event when the evidence is carefully considered I am of the view that the verdict returned by the jury was unsafe and unsatisfactory.  On either ground –

referring to the two grounds in paragraph [72], that is the double jeopardy question, or on the evidentiary threshold, the “unsafe and unsatisfactory” basis –

the verdict should be set aside and an acquittal entered –

on that basis.  So there were really, in fact, three strands to the view that the court formed, each of which seemed to lead to the ultimate acquittal independently.

GLEESON CJ:   We have not yet got into the question of the strength or weakness of the evidentiary case on which the prosecution relied.

MR GRIFFIN:   That is so, your Honour.

GLEESON CJ:   We are simply dealing with the first of your submissions, which I take to be that either because there was an available plea of bar, or alternatively, because quite apart from the strength or weakness of the evidence at the second trial, this involved an abuse of process, then there should be no grant of special leave.

MR GRIFFIN:   Yes. 

GLEESON CJ:   Now, that argument would be no different, would it, if the evidence on which the prosecution relied at the second trial was the evidence of an eyewitness who witnessed the killing of the victim?

MR GRIFFIN:   On our argument that is so.  If there was to be an exception, we say it is the sort of exception that is observed in Cairns’ Case, that is evidence which, after the time the matter was litigated, could somehow form new substantial evidence.  This is what the Court of Appeal seemed to be arriving at when it talked of the lack of new substantial evidence in this trial.

McHUGH J:   The Court of Appeal’s approach seemed to be that there would be a breach of the double jeopardy rule unless there was new significant evidence or substantial acceptable evidence pointing to the fact that the alleged perjury was committed by the applicant, and by that they seem to have meant there had to be significant evidence other than the evidence that was led in support of the murder charge.

MR GRIFFIN:   Yes, but in saying that, your Honour, the court seems to have been talking about an evaluation of that evidence, not just that it was new and it was clearly new in the sense that it had not been produced at the earlier trial.  The evidence of Swifte and Hill are examples of that.

McHUGH J:   But the assumption seems to be that a perjury charge can be brought whenever there is new significant evidence or substantially acceptable evidence.

MR GRIFFIN:   Yes, that is so.

McHUGH J:   Do you accept that proposition?

MR GRIFFIN:   It resulted from a view which the court formed of the authorities such as Storey and El‑Zarw, the Court of Criminal Appeal in Queensland.

McHUGH J:   But it is a new terror for people who are acquitted of crime if that be the law that they can be charged with perjury whenever there is new significant or substantially acceptable evidence.

MR GRIFFIN:   And in the way it is put, that evidence can come from any source at any time.

GLEESON CJ:   Including the accused.

MR GRIFFIN:   Yes.

GLEESON CJ:   What if the evidence was incontrovertible and uncontested evidence of a confession by the accused?

MR GRIFFIN:   Then, in that case, if the confession, like Cairns, came after the event, it may be available to be used.

HAYNE J:   You are on a very slippery slope, Mr Griffin.

GAUDRON J:   Yes.

HAYNE J:   You are on a slope that just takes you straight down.

GLEESON CJ:   Suppose an accused person confessed to get it off his conscience.  Suppose an accused person said, “I’m going to die.  I’ve been told I’m going to die in six months time.  I want to make a clean breast of this”.  That sort of thing has happened.

MR GRIFFIN:   Yes.

McHUGH J:   It happened recently with a man named Lewis who was acquitted of doping the racehorse, Big Philou, in the Caulfield Cup, but then came out a couple of years ago and said he was guilty.  He did dope it.  Now, could he be charged with perjury?

MR GRIFFIN:   On statements in Pearce and some statements that your Honour made in Dodd, even that offends against the absolute bar which is gained by the acquittal.

GLEESON CJ:   That is part of the importance of deciding whether we are dealing with a plea in bar or a discretionary judgment.

GUMMOW J:   At paragraph [15] on 1296 it looks as if it is discretion.

HAYNE J:   And if it is then why is not the weight of the evidence, the circumstances of its revelation, its newness or absence of newness, all matter that is properly taken into account, and if it is, what is the principle that is underpinning it?  Are we in the realm of high policy, overarching policy that autrefois acquit is, or are we in some lower level of policy?

MR GRIFFIN:   The matter was dealt with on that basis.

HAYNE J:   No, I want to know what your submission is.  You tell me what you say the proper approach is.  You can find lots of things in the cases.  How do you say we should deal with it?

MR GRIFFIN:   The principle, we submit, is that the Crown cannot re‑litigate an acquittal, and that is because it is a principle ‑ ‑ ‑

HAYNE J:   That is a matter of high level policy.

MR GRIFFIN:    ‑ ‑ ‑ autrefois acquit.

HAYNE J:   Yes.

GLEESON CJ:   You say the Crown cannot, which is a different thing from saying the Crown should not, or should not ordinarily.

MR GRIFFIN:   The Crown should not, as a matter of policy, because of the principles which are derived from autrefois acquit.

GAUDRON J:   Well, why do you not say cannot, by reason of the reasoning in Rogers and that an indictment which attempts to do just that is an abuse of process and must be stayed, not on discretionary grounds, but is an abuse of process and must be stayed, permanently stayed.

McHUGH J:   It could be answered by a plea in bar or a plea under 598(2)(e).

MR GRIFFIN:   Perhaps I was making the distinction between whether there was evidence of the commission of an offence and the right by the prosecution to charge or put someone in jeopardy of that offence being prosecuted against them.  As a matter of the absolute principle in terms of double jeopardy, the person should not be.

HAYNE J:   Let me make it quite plain and blunt to you, Mr Griffin.  The hesitation that is shown in embracing the proposition seems to give strength to what comes out of Cairns’ Case, namely the instinctive reaction of the onlooker, “This would be an outrage if this is permitted to happen”.

Now, that instinctive reaction is not terribly useful until you analyse why it is said to be an outrage, but if there is that hesitation ‑ and it is not intended as some criticism of your advocacy, but if, if underpinning this, there is some hesitation about grasping what on one view is an absolutely fundamental tenet of the criminal justice system, what is driving it?  Is it a concern that we are veering off into areas of the kind described in Cairns?

MR GRIFFIN:   Cairns may well be explained because the reasoning itself was driven by public policy considerations, the sort of discussion which Mr Justice Mackenzie had about the result saying that that result needed to occur because of a public concern about the offender thumbing his nose, as it were, at the court system.  Cairns seems to be the fount from which other decisions such as Humphrys and some statements in Storey, for example, the passage attributed to Justice Jacobs comes.

GLEESON CJ:   But it is not only cases where an offender thumbs his nose at the court system that might produce this problem, and that example I gave of a confession is not a fanciful example.  There was a case in New South Wales several years ago in which a man, about 20 or 30 years after the event, came forward and confessed to a homicide that had been written off by the police; it was an unsolvable crime, and he did that because he had embraced a certain form of religion and his religious advisers had told him that he should do that, and he did it, and the question arose then as a problem of sentencing.

But Lord Salmon in Humphrys on page 47 in the second complete paragraph commencing with the words “it was almost unheard of” expresses his views on a basis, and I say this with the utmost diffidence and deference, that seems to involve discretionary considerations of a kind that would vary from individual case to individual case.

HAYNE J:   It also seemed to proceed from a view that if someone comes out of the court having been acquitted and wants to sell his story to the press, that what he is selling to the press is necessarily true; not an intrinsically undeniable proposition.

MR GRIFFIN:   And the principle of protection given by autrefois acquit should not be affected by different considerations, different factual considerations in respect of different cases.

GUMMOW J:   Now, Mr Griffin, could you just look at 598(2)(e) of the Code for a second?  Is that understood as going beyond section 17, or just referring one back to 17, as perhaps (c) and (d) do, because the Court of Appeal was not referred to it and at paragraph 14 and 15 of their judgment they went to 17 and they said, “That doesn’t apply, therefore, we’re in the area of abuse of process”.

MR GRIFFIN:   Paragraph (e), in my submission, refers simply to section 17.

GAUDRON J:   What is there about section 17 that is not included in paragraphs (c) and (d)?

MR GRIFFIN:   In practical terms I am not sure that there is any difference.  It is simply a section which deals with the way in which pleas are to be taken at trial, as opposed to the defence, if one might call it that, under section 17.  It focuses on the formalities of the plea and when that plea is to be made.

GAUDRON J:   I will tell you what I think it is doing, and it may not travel beyond section 17 on a strict view, but I think paragraph (e) is dealing with the situation in which a person has been convicted or acquitted of an offence, which is not precisely identical with the offence charged, but where the actus reus of the offence now charged was an element of the earlier offence.  That is what is traditionally understood in autrefois acquit and convict, even though the offences are not the same.

MR GRIFFIN:   And perhaps the distinction is made in that section between an offence which is committed and the offence charged for the indictment, and perhaps it is so, that it comprehends related offences of which one, perhaps, is an ingredient of the other. 

GUMMOW J:   Yes.  So there is a wider area than 17? 

MR GRIFFIN:   Perhaps that is so.  I cannot say ‑ ‑ ‑

HAYNE J:   So 17 and 598 must also be understood in light of 602, must they not?  We have not been taken yet to 602. 

MR GRIFFIN:   Yes, that is so, your Honour. 

HAYNE J:   I thought one of the virtues said to be had by a Code was that that was where you started.  We seem to be drawing sections out of counsel like teeth. 

MR GRIFFIN:   Well, except, of course, that section, with respect, is one that goes to the formalities of the plea. 

HAYNE J:   I understand that, but if you are going to read the Code, you read the lot. 

MR GRIFFIN:   Yes, your Honour. 

GUMMOW J:   Well, 602 was not referred to in the Court of Appeal, was it? 

MR GRIFFIN:   No, it was not. 

McHUGH J:   Well, no doubt that was because no plea was ever entered in accordance with its terms. 

MR GRIFFIN:   That is so. 

GLEESON CJ:   The Court of Appeal, as I understand it, set out to decide the case consistently with the decision of Justice Muir. 

MR GRIFFIN:   Yes. 

GLEESON CJ:   Nobody invited them to overrule his decision. 

MR GRIFFIN:   No, that is so.  The primary impetus for the appeal to the Court of Appeal was the verdict of a jury. 

GLEESON CJ:   Perhaps I should qualify what I have said.  Nobody invited the Court of Appeal to overrule Justice Muir’s decision on the first matters that they considered. 

MR GRIFFIN:   No, that is so. 

GAUDRON J:   Well, is it?  I am sorry, I am looking at your first ground of appeal, that it was “the trial judge” – that was the same? 

MR GRIFFIN:   Yes. 

GAUDRON J:   “should have stayed the prosecution” on – and then ground (i), that: 

The Appellant had been acquitted of the murder of Deidre Kennedy, and his acquittal was not secured by the alleged perjury. 

I do not know what the words add to it, but if you just stopped at “the appellant had been acquitted of the murder of Deidre Kennedy” then ‑ ‑ ‑

GLEESON CJ:   The Court of Appeal seems to have said – and it may be perfectly correct – the clearest example of abuse of process would have been if the prosecution had just tried to run this charge on the basis of the original evidence.  By implication, at least, they said, an example of a case that might not have been an abuse of process is if they had relied upon incontestable evidence of a confession of the commission of perjury, as by a videotaped statement, “I told a lie when I said I was not guilty”, whatever the case may be.  They seem to have said in between those two extremes, there is room for discretionary considerations. 

MR GRIFFIN:   Based upon the view of the comments in Storey and Humphrys and so on, that is, that there is room for operation beyond the bounds of the original trial, if there is new and substantial evidence.  That is wrong, we can submit, if the view is taken that the acquittal which is entered is a bar, or should stop any further prosecution.  We submit that that is the case. 

HAYNE J:   I will just see if I can understand where we have got to in the Code, Mr Griffin, and I will leave off tormenting you.  Section 17 provides that it is a defence to a charge if certain things were established, the second of which is that, acquitted or convicted: 

of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged. 

GUMMOW J:   It is….. in section 16, too. 

HAYNE J:   Yes. 

GUMMOW J:   And it is in Chapter 3, which is:  “Application of Criminal Law”, which is a general-type provision. 

HAYNE J:   Section 16: no double punishment; 17, a defence, in two kinds of circumstance.  Section 584 tells us when evidence shows offence of a similar nature, that is, it provides, does it not, for alternative verdicts.  Section  598 then deals with what kinds of plea you may make, and 602 tells you what is sufficient to make a plea in bar. 

McHUGH J:   You might add 631, which says that: 

When the issues raised by any plea or pleas, except the plea of not guilty, have been found against an accused person who has not pleaded the plea of not guilty, the person is to be called upon to plead afresh, and, if those issues have been tried by a jury, the court may direct the issues raised by any fresh plea to be tried by the same jury or by another jury. 

So you could plead in bar.  That could be determined by a jury - found against the accused, who could then plead not guilty, and perhaps be tried by another jury. 

HAYNE J:   Now, you say, as I understand it, outside whatever may follow from the application of the words of the provisions thus identified, there is room first for a defence, an absolute plea in bar, in circumstances of the kind with which we are now dealing? 

MR GRIFFIN:   Yes. 

HAYNE J:   Failing that, it is a matter for a stay.  If it be discretionary, the discretion can be exercised only one way in circumstances of this kind? 

MR GRIFFIN:   Or is an abuse of process. 

HAYNE J:   Yes.  Do you say that, if we ever get to the level of stay, in considering that issue, it is relevant or irrelevant to have regard to the nature of the evidence that might be led, the circumstances in which it was obtained, et cetera, for the second trial, in this case, the trial for perjury? 

MR GRIFFIN:   The application of the first principle means that there is no room for consideration as to the quality of the evidence.  That must hold true, in my respectful submission, in respect of the second, as well ‑ the stay application – although, of course, the court in this case did so, and did indulge in that activity.  The quality of the evidence is irrelevant.  If it is attempted to circumvent the acquittal, and all that that means in terms of the protection of the acquitted person, it matters not what the quality of the evidence is.  Unless there is anything further, your Honours? 

GLEESON CJ:   Thank you, Mr Griffin.  Yes, Mr Byrne. 

MR BYRNE:   I have nothing in reply to those matters, your Honour. 

GLEESON CJ:   We will adjourn for a short time to consider the course that we will take. 

AT 3.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.37 PM:  

GLEESON CJ:   So far, in this matter, we have heard argument upon the primary issue raised by both parties.  We will reserve our decision on that issue.  If, in the light of our decision, it becomes necessary to enter the matter for further argument on other issues, we will notify the parties accordingly. 

In any event, questions have been raised in the course of argument as to the application of the Queensland Criminal Code, and authorities on the Queensland Criminal Code, in relation to the matter that has been the subject of argument.  Both parties are invited to file further written submissions on the question of the application of the Code to the points that have already been discussed in argument in each case within 14 days from today. 

On that basis, we will reserve our decision in the matter. 

AT 3.40 PM THE MATTER WAS ADJOURNED