R v Chekeri

[2001] NSWCCA 221

Reported Decision: 122 A Crim R 422

New South Wales

Court of Criminal Appeal

CITATION:	R v Chekeri [2001] NSWCCA 221
FILE NUMBER(S):	CCA 60205/01
HEARING DATE(S):	31/05/01
JUDGMENT DATE:	1 June 2001
PARTIES :	Regina v Rahimullah Chekeri
JUDGMENT OF:	Spigelman CJ at 1; Greg James J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0313
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

COUNSEL :	P.G. Berman SC - Crown P. Lowe - Respondent
SOLICITORS:	S.E. O'Connor - Crown Barclay Benson - Respondent
LEGISLATION CITED:	Criminal Appeal Act 1912 - s 5F Drug Misuse and Trafficking Act 1985 - ss 25(1), 25(2)
CASES CITED:	R v Humphrys [1977] AC 1 Rogers v the Queen (1994) 181 CLR 251 Connelly v DPP [1964] AC 1254 R v Wilkes (1948) 77 CLR 511 Dodd (1991) 56 A Crim R 451 Garret v The Queen (1977) 139 CLR 437 Storey v The Queen (1978) 140 CLR 364 Pearce v The Queen (1998) 194 CLR 610 Filippetti (1978) 13 A Crim R 335 R v Hinton (NSWCCA, unreported, 19 March 1976) R v Z [2000] 3 All ER 385 King v The Queen (1986) 161 CLR 423 R v Anderson (1991) 53 A Crim R 421 Jimanez v The Queen (1992) 173 CLR 572 Parker v The Queen (1996) 186 CLR 494
DECISION:	The appeal is allowed and the order of Judge Finnane staying the proceedings is quashed.

IN THE COURT OF
CRIMINAL APPEAL

60205/01

SPIGELMAN CJ
GREG JAMES J
HOWIE J

FRIDAY 1 June 2001

REGINA v RAHIMULLAH CHEKERI
JUDGMENT

1    SPIGELMAN CJ: I agree with Howie J and the orders of the Court are those proposed by his Honour.

2    GREG JAMES J: I agree with Howie J.

3 HOWIE J: This is an appeal by the Crown under s 5F of the Criminal Appeal Act 1912 against an order permanently staying an indictment. The Crown seeks an order vacating the stay. The Crown has an appeal as of right and does not need the leave of the Court to pursue this appeal.

4 In order to understand this issue arising on the appeal it is necessary to outline the history of the prosecution of the Respondent for the offence to which these proceedings relate. The Respondent was initially arraigned on an indictment containing one count of supplying heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act and two counts of supplying heroin being not less than a large commercial quantity of that drug contrary to s 25(2) of that Act. The first count was alleged to have been committed on 29 January 1999 and the latter two counts on 4 February 1999. At a trial before Judge Williams he was acquitted of the first count but the jury were unable to agree on a verdict in respect of either the second or third counts.

5    On 23 October 2000 the Respondent stood trial before Judge Bellear on an indictment containing the two counts of supplying a large commercial quantity of heroin. At the end of the Crown case his Honour directed that the jury return a verdict of not guilty on the second count and then discharged them without giving a verdict on the first count.

6    On 6 March 2001 an indictment was presented before Judge Finnane QC for a single count of supplying a large commercial quantity of heroin, being the count in respect of which the jury were discharged by Judge Bellear and being the second count in the original indictment. Judge Finnane ordered that proceedings on this indictment be permanently stayed and it is from this order that the Crown appeals. In effect his Honour held that, in continuing to prosecute this offence, the Crown was attempting to deny the validity of the acquittal given in respect of the second count on the indictment before Judge Bellear and to do so was an abuse of the court’s process.

7    The facts relied upon by the Crown to support the two counts on the indictment which was before Judge Bellear can be stated shortly. The police received information that the Respondent had a large amount of heroin in his possession. It was believed that the drugs was stored in premises at 9 Toorak Crescent Emu Plains, in a basement in which the Respondent kept foodstuffs which he sold from a shop in Granville. Telephone conversations between the Respondent and a man named Hameed were recorded in which, the Crown alleged, an agreement was made for the Respondent to supply heroin to Hameed. It was the Crown’s case that the Respondent obtained four packages containing heroin from the basement and placed them into the boot of his motor vehicle, a BMW, covering them with a blanket. The Respondent was arrested before the packages were delivered to Hameed. The Crown relied upon evidence of a chemist that the heroin found in the BMW was identical in chemical composition to that found in the basement.

8    The first count in the indictment before Judge Bellear alleged that on 4 February 1999 the Respondent supplied 2.719 kg of heroin. This count referred to the heroin found in the Respondent’s motor vehicle (the BMW count). The Crown alleged that the Respondent was in the course of supplying this heroin to Hameed when he was arrested. The second count alleged that on 4 February 1999 the Respondent supplied 16.135 kg of heroin. This was the amount of heroin found in the basement of the premises in Emu Plains after the Respondent was arrested by police (the basement count). The Crown alleged that the Respondent was in exclusive possession of this heroin for the purposes of supplying it.

9    There was evidence before Judge Bellear and the jury that the Respondent did not live at the Emu Plains premises but that other members of his family occupied those premises and could have gained access to the basement if they had wished to do so. Judge Bellear also found that the boxes were in a position where they were open to members of the public at large and there was nothing to link the boxes in which the heroin was found with the Respondent.

10    Judge Finnane in determining the application before him did not have regard to the reasons given by Judge Bellear for the directed verdict. This was because Judge Finnane believed that a res judicata arose from the acquittal and the reasons for the acquittal were irrelevant. However, those reasons have been placed before us without objection and were referred to in the written submissions of both parties and during oral argument.

11    Early in his reasons Judge Bellear stated the following:

Immediately after submissions I was satisfied that this count, that is count 2 in the indictment, that a verdict by direction should and will be given. I am satisfied that there was no evidence of actual possession of the two boxes containing the substance nor possession of the substance contained in the boxes.

12    After referring to decisions of this Court which have stressed the need for the Crown to exclude the possibility of other occupants of premises being in exclusive possession of the drugs which are the subject of the charge, His Honour stated:

In this case I am satisfied the Crown Prosecutor has not satisfactorily produced material in evidence that the jury could regard as negating possession on the part of occupants of the house of the 2 boxes and its (sic) contents.

Later his Honour summarised his decision as follows:
I am satisfied that in the second charge on the indictment there is no evidence of possession and knowledge with respect to this accused to go to the jury. I therefore propose to direct the jury to acquit the accused of that charge in the indictment.

13    Judge Bellear, however, refused to direct a verdict of acquittal on the BMW count. His Honour stated that he was satisfied that there was sufficient evidence of each element of that offence to go to the jury. However, Judge Bellear discharged the jury without giving a verdict on that count because he came to the view that the Respondent might be prejudiced by evidence admitted in respect of the basement count that was not admissible in respect of the BMW count.

14    At the trial before Judge Williams the Respondent gave evidence that the two boxes in which the heroin was found in the basement were given to him by Hameed and he believed that they contained mushroom powder. He said he was taking the packages in the vehicle to return them to Hameed not knowing that they contained any drug. The Respondent did not give evidence in the trial before Judge Bellear, nor did the Crown seek to rely upon his evidence before Judge Williams during its case.

15    Before the trial of the BMW count commenced before Judge Finnane, counsel representing the Respondent, Mr Bellanto QC, sought a stay of the proceedings on two bases, firstly that the trial would be unfair if the Crown sought to tender the evidence of the Respondent given before Judge Williams, and, secondly, that the Crown could not conduct the trial without challenging the acquittal of the Respondent on the basement count. In effect the submission was that a verdict of guilty in respect of the BMW count would be inconsistent with the acquittal on the basement count.

16    Judge Finnane, correctly in my view, found that there was no substance in the complaint about the Crown’s intention to tender the evidence given by the Respondent in the trial before Judge Williams. I shall return to this matter later. However, his Honour found otherwise in respect of the complaint that the Crown was seeking to challenge the acquittal of the Respondent on the basement count.

17    His Honour determined that the acquittal of the second count on the indictment before Judge Bellear meant that the jury were not satisfied that the Respondent was in possession of the heroin in the basement. His Honour noted, however, that the evidence which the Crown would seek to rely upon in a trial of the BMW count included the fact that the Respondent had taken packages from the basement and placed them in the boot of his vehicle. His Honour then asked the rhetorical question:

If his possession of the heroin in the basement was not “possession” within the meaning of sec 25(2) of the Act how could his taking of part of the material which he did not “possess”, be a “possession” within s 25(2) of the Act?

18    Judge Finnane then listed seven propositions which can be found in the judgement of Viscount Dilhorne in R v Humphrys [1977] AC 1 at 15-17. Judge Finnane believed these propositions applied in Australia as Humphrys had been accepted as correctly decided by the High Court in Rogers v The Queen (1994) 181 CLR 251. These propositions were seven of the nine which Lord Morris of Borth-y-Gest had distilled from principle and authority and were set out in his judgment in Connelly v DPP [1964] AC 1254 at 1305-6. Those propositions were formulated and considered both in Connelly and in Humphrys in relation to the application and extent of the plea of autrefois acquit. No such plea was raised in this case. The passages in Humphrys which were approved by the High Court in Rogers were those which held that issue estoppel did not apply to the criminal law.

19    Be that as it may, Judge Finnane considered that the prosecution of the Respondent came within the fourth of those propositions, which is:

That one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been convicted.

His Honour concluded that evidence which the Crown sought to lead to support the BMW count was evidence which would have been sufficient to obtain a conviction on the basement count in the first trial and, therefore, the test was satisfied.

20    In reaching that conclusion his Honour stated:

In my opinion the evidence which the Crown wishes to lead about the heroin in both places being the same and that the accused moved heroin from the basement to the car is in fact evidence ‘which would have been sufficient to obtain a conviction’ of the basement count in the first trial. In fact there was an acquittal.

The reference to the evidence “about the heroin in both places being the same” was, I assume, a reference to the evidence of the chemist that the heroin found in the basement and that in the BMW had the identical chemical composition.

21    Judge Finnane then went on to consider other propositions from Humphrys. He concluded, relying upon the 7th proposition, that the charge in the indictment before him was substantially the same crime as that for which the Respondent was acquitted in the first trial save for the different quantities of heroin. His Honour reached that view because “the possession was the same and the heroin was the same”.

22    Further, his Honour was of the opinion, relying upon the 8th proposition, that there was a res judicata which, according to his Honour, “effectively has resolved for all time that the possession of the accused of the heroin was innocent”.

23    Accordingly, Judge Finnane concluded that the Respondent could not be prosecuted for the BMW offence and any attempt to do so was an abuse of process. His Honour, therefore, granted the application and stayed the proceedings.

24    In order to determine the outcome of this appeal it is not necessary to refer in detail to the authorities of the House of Lords or the High Court which have considered the principle of double jeopardy and in particular the relevance of issue estoppel or res judicata to a criminal prosecution. Notwithstanding a submission to the contrary on behalf of the Respondent, in my view the decision in Rogers v The Queen (1994) 181 CLR 251 appears to have settled the debate about the application of issue estoppel to criminal proceedings in favour of its exclusion, see per Mason CJ at 254-255 and per Deane and Gaudron JJ at 278.

25    But there is no doubt that the doctrine of res judicata applies and finds its expression in particular in the formal pleas of autrefois, R v Wilkes (1948) 77 CLR 511 at 519 or, where the strictness required by those pleas is not met, in the plea in bar Dodd (1991) 56 A Crim R 451. But the doctrine is not restricted to those pleas and may affect the admissibility of evidence at a subsequent trial: Garret v The Queen (1977) 139 CLR 437 at 445, but see Storey v The Queen (1978) 140 CLR 364 which is considered below. Pearce v The Queen (1998) 194 CLR 610 accepts that it may be an abuse of process to continually prosecute an offender even though a plea in bar cannot be raised in opposition to the proceedings before the court.

26    However, the joint judgment in Pearce at [30] recognises that the decision about what charges should be laid or prosecuted is a matter for the prosecution and that ordinarily the prosecuting authorities will attempt to ensure that all charges arising from a single event or series of events are preferred and are dealt with at the one time. Further it is appropriate for the prosecution to lay charges which reflect the totality of the criminality arising from the conduct of the accused. As Gleeson CJ pointed out in Dodd at 457:

In Australia, it is not the law that a person cannot be prosecuted for a number of offences just because they arise out of the same act or the same course of conduct.

27    It has never been suggested at any time during the proceedings against the Respondent that the prosecution of both the basement count and the BMW count itself was an abuse of process. There seems to have been an acceptance by the defence that it was appropriate in order to reflect the criminality alleged against the Respondent that he be prosecuted for two offences arising from his arrest on 4 February, one offence relating to the heroin in the basement and a separate offence relating to the heroin in the motor vehicle. Obviously had he been convicted of both, the two offences might have been considered to be part of the one transaction and the Respondent sentenced accordingly. But the heroin in the motor vehicle was, according to the Crown case, actually being supplied to Hameed whereas the heroin in the basement was available for supply in the future.

28 In order to prove the basement count, the Crown, relying principally upon the deeming provision in s 29 of the Drug Misuse and Trafficking Act, sought to satisfy the jury beyond reasonable doubt that the heroin found there was in the exclusive possession of the Respondent, and that it exceeded the trafficable quantity for that drug. No doubt the Crown intended to rely upon the evidence of the telephone calls between the Respondent and Hameed, and the Respondent’s conduct in relation to the heroin found in the BMW to support an inference that the Respondent was in possession of the drugs in the basement. But while that evidence may have been necessary to prove that allegation, it was not sufficient.

29    To prove that the Respondent was in possession of the heroin in the basement, the Crown was required to prove that he not only had knowledge of the presence of that drug, but also that he intended to exercise control over it to the exclusion of any other person not jointly in possession of the drug with him. As the Respondent did not live in the premises at Emu Plains, and there were others who did and who could have had access to the basement, the Crown had to exclude the reasonable possibility that any of those persons might have been in exclusive possession of the drug in the basement; Filippetti (1978) 13 A Crim R 335. It was not enough that the Respondent had knowledge of the presence of the heroin in the basement and sanctioned its presence, if he were not intending to exercise control over it: R v Hinton (NSWCCA, unreported, 19 March 1976).

30    The prosecution of the basement count failed because Judge Bellear came to the view that the evidence in the Crown case could not exclude the possibility that some other person may have been in exclusive possession of that heroin at the time it was found. That determination and the consequential acquittal of the Respondent declares only that he was not in possession of the heroin found in the basement after his arrest. It says nothing at all about whether he was in possession of the heroin he had with him in the BMW. That was a separate and distinct allegation even though there may have been evidence which was common both to that count and the basement count and which justified a joint trial of the two offences. This is no doubt why Judge Bellear would not direct an acquittal on the BMW count: the issues to be determined in the two charges were not identical.

31    The acquittal of the Respondent on the basement count recognised that the prosecution could not prove beyond reasonable doubt both that he had knowledge of the existence of the heroin and at the same time had an intention to exercise control over it. It was a circumstantial case and Judge Bellear held that the Crown could not prove that the only inference arising from the evidence was that the Respondent must have been in possession of the heroin in the basement.

32    But if the Crown proves that the Respondent took the packages of heroin and put them in his motor vehicle intending to deliver them to Hameed, there would be evidence from which a jury could infer that in relation to the packages in the BMW he had exercised control over them and, thus, had possession of them. The only significant question then arising was whether the Respondent had knowledge that the packages contained a drug. The Crown would ask the jury to infer that knowledge from the fact that the packages found in the BMW were covered with a blanket.

33    Mr Lowe, who ably appeared for the Respondent before this Court, relied upon the statement by Judge Bellear, that I have quoted above, in which his Honour said that he was satisfied that “there is no evidence of possession and knowledge with respect to this accused sufficient to go to the jury” (my underlining). It was submitted that this was a finding that the Respondent had no knowledge of the presence of heroin in the basement and that such a finding could not be undermined by subsequent proceedings.

34    I do not understand that this is what his Honour was intending to convey in that passage. It is inconsistent both with his earlier reasons given for directing the verdict on the basement count which I have set out and with his decision not to direct a verdict on the BMW count. With respect to his Honour, it may be that he was using the word “possession” intending to convey the sense of control, because the concept of possession itself requires that there be knowledge of an object before it can be possessed. The acquittal of the second count before Judge Bellear does not require that the Respondent should thereafter be taken to have had no knowledge of the heroin in the basement.

35    In his reasons for granting the stay, Judge Finnane stated that the possession was “the same” and the heroin was “the same” in both the basement count and the BMW count. This proposition seems to have been fundamental to much of his reasoning and to his finding that a res judicata had been established. In my view that statement was erroneous. Firstly, it assumes that, if the Respondent was in possession of the heroin in the basement, he was necessarily in possession of the heroin in the motor vehicle. That may be a fair assumption to make on the facts in the present case, but it is the next step in the reasoning which is flawed. His Honour appears also to assume that the converse must be true so that, if the Respondent was not in possession of the drugs in the basement, he cannot have been in possession of the drugs in the BMW. But it is trite law that a person can obtain possession of an object which was previously in the possession of some other person. Every thief proves the truth of that proposition. In the present case it is neither legally nor factually inconsistent that some unknown person had possession of the heroin in the basement but that the Respondent was in possession of the heroin which he put in the motor vehicle.

36    The Crown has notified the Respondent of its intention to place before the jury on the trial of the BMW count, the evidence given by the Respondent before Judge Williams in the first trial. That evidence contains an admission by the Respondent that he placed the packages that he took from the basement into the back of the BMW. I doubt that the evidence is essential to prove the BMW count as there seems to me, as it apparently appeared to Judge Bellear, that there is a circumstantial case from which the jury could conclude that the Respondent was responsible for those packages being placed in the boot of the BMW.

37    It has been submitted on behalf of the Respondent that the Crown should not be allowed to place that evidence before a jury if there were to be a trial of the BMW count. I will refer to this argument later. But assuming, for the present, that the evidence, or some part of it, can be adduced in the Crown’s case, it contains statements by the Respondent to the effect that. although he placed the packages into the vehicle, he did not know of the presence of the heroin in those packages or in the packages remaining in the boxes in the basement. It is submitted on behalf of the Respondent that this evidence cannot be relied upon by the Crown because it proves that the Respondent had no knowledge of the heroin in the basement and for the jury to find otherwise would be contrary to the acquittal.

38    In my opinion this argument is without merit. As I have already indicated, I do not believe that the acquittal creates any bar to a jury finding that the respondent did have knowledge of the heroin in the basement. It simply declares that he did not have that heroin in his possession at the time it was found. The jury are not bound to accept the truth of anything the Respondent said in his testimony before Judge Williams other than that he was not in possession of the heroin in the basement.

39    It was also erroneous, in my opinion, for Judge Finnane to consider that the heroin found in the two places was “the same” if he meant by that term that the drug in the BMW was identical to that found in the basement. The heroin in the vehicle may well have originally been part of the heroin which was found in the basement, and the fact that the chemical make-up of the two quantities of heroin was identical might support such an inference. But it is only in this limited and imprecise way that it could be said to be the same heroin. The basement count related to the heroin left after the Respondent had put the packages into the motor vehicle. By taking possession of those four packages, he cannot be said to have assumed possession of those remaining in the basement.

40    Further, in my view his Honour was in error in holding that the evidence in respect of the BMW count was sufficient to prove the basement count. The evidence that the Respondent took the packages from the basement and placed them in his vehicle, even if that conduct is viewed in the light of the telephone conversations, could not prove that the Respondent had been in possession of the heroin in the basement before that time or that he was in possession of the heroin remaining in the basement thereafter. The evidence did not prove that the Respondent had knowledge of the heroin in the remaining packages or, if he did, that he intended to exercise control over it.

41    In my opinion the propositions from Humphrys, relied upon by Judge Finnane, did not require that the prosecution be stayed. There was no breach of the principles of double jeopardy in the proceedings before his Honour. Although the doctrine of res judicata applied to the Respondent’s acquittal on the basement count, it did not extend to the BMW count. Even if some of the elements of the two offences were the same, the offences were not identical because the subject matter of the two charges was different.

42    Nor does the acquittal of the Respondent on the basement count prevent a jury from finding that an element of that offence has been proved when determining the BMW count. In Storey Jacobs J stated at 409:

In my opinion, it is not open to a jury in a later trial to conclude that all the elements of an offence for which the defendant was tried and acquitted in an earlier trial are proven in the later trial. To find all the elements of an offence proved is to find that the defendant committed the offence. It is widely recognized that this is not permissible: Sambasivam's Case [1950] AC 458; Director of Public Prosecutions v Humphrys [1977] AC 1; (and the other cases to which I have referred). Consequently, every effort should be made at the later trial to avoid evidence in that later trial taking such a form that the jury could conclude therefrom that all the elements of that offence are proven; if despite those efforts the evidence for some reason or another comes to be admitted, then the clearest and most specific direction is required to be given to the jury that they must not reach the conclusion that all those elements are proven. The determination in the earlier trial that all the elements were not proven against the defendant must be accepted as a correct finding………
Although all the elements cannot be accepted as proved in the later trial individual elements less than the whole can be: Reg v Ollis [1900] 2 QB 758. But what if an examination of the transcript of the earlier trial discloses that only one element of the offence was put in issue so that it can be concluded that the jury determined that issue in favour of the defendant? Can that finding be traversed by the prosecution in a later trial? I do not think that any short definitive answer can be given to that question. A negative answer does not follow from the decision in Kemp v The King or Mraz v The Queen [No 2] . They are explicable on other grounds as I have indicated earlier. But one thing is to me clear. The fact that only one issue or element of the offence was submitted to the jury at the first trial must be clearly established…….

43    In the present case, it is clear that the acquittal did not result from a finding against the Crown on any specific element to be proved by it to obtain a conviction on the basement count. The issue of possession was determined by the trial judge on the basis that the Crown could not exclude the possibility of some other person being in possession of the heroin in the basement. The acquittal did not determine in the Respondent’s favour, for example, that he had no knowledge of the presence of the heroin in the basement. So on the trial of the BMW count, the jury could find that the Respondent did have knowledge of that heroin, at least when he placed the packages into the motor vehicle, without finding that he was in possession of the remaining heroin in the basement.

44    The same result follows, in my opinion, even if it is still open for the Respondent to rely upon issue estoppel notwithstanding the judgments of the majority in Rogers. In Storey Murphy J was of the view that issue estoppel applied and determined the appeal on the application of that principle to the facts of the case before the court. The facts in Storey must, therefore, be briefly stated. The appellants had been charged with abduction of the complainant from a railway station with intent to carnally know her. They were acquitted of that offence after trial by jury. They were then tried for the rape of the complainant and were convicted. On appeal the convictions were quashed by a majority of the Court of Criminal Appeal on the basis that the Crown was seeking, in effect, to establish that the appellants were guilty of the crime for which they had been acquitted. The Crown then appealed to the High Court against the order quashing the convictions.

45    In holding that the reasoning of the Court of Criminal Appeal was erroneous and that there was no basis upon which the Crown was prevented from relying upon evidence led in the first trial which was relevant to the proof of the charge in the second trial, Murphy J stated at 404:

On the first trial, no special finding was made and no issue was determined in the accused's favour except the general issue. It follows from the acquittal of abduction that all the jury were not satisfied that the Crown had made out all the matters which it had to prove or disprove; it may be inferred that each juror was not satisfied either of the force or of the intent; it does not follow' that each was not satisfied of the force; and it does not follow that each was not satisfied of the intent. Therefore, it is not established that the verdict involved a determination in favour of the accused on either of those issues. One of the traps in issue estoppel is to treat a jury as a unit, rather than a tribunal whose members are entitled to reach their verdict by different paths. Thus, the acquittal created estoppel only on the general issue of abduction; this was not in issue in the second trial.
On the second trial, the prosecution was therefore entitled to lead evidence relevant to the charge of rape and not otherwise inadmissible, even if it tended to establish the elements which had to be proved to secure a conviction of the abduction of which they had been acquitted. In fairness, the accused should be entitled to prove that they had been acquitted and were innocent of the charge of abduction, that is, of taking by force (or threats of force) with intent to know carnally, and the Crown should concede this in order to give them the full benefit of the acquittal. But the accused are not entitled to claim that the acquittal means that they did not take by force, or that it means they did not take with intent to know carnally. Whether the young woman left the station voluntarily or involuntarily was relevant on the rape trial to the issue of consent and also to the issue of the later intent of the accused. The evidence in question was rightly admitted.

46    In my opinion the situation is similar in the present case and, even if issue estoppel is still available to the Respondent, and I do not accept that it is, it does not avail him. Although there is not present the difficulty which might exist if the acquittal had been given by a jury, Judge Bellear made no finding on the two issues which were involved in proof of possession of the heroin, that is knowledge of its presence and an intention to exercise control over it. It was the failure of the Crown to exclude the possibility of possession in some other person that resulted in the acquittal. That finding said nothing about whether the Respondent had knowledge of the presence of the drugs in the basement. The testimony of the Respondent in the trial before Judge Williams was not in evidence before Judge Bellear. The only issue that was determined by the acquittal was the general issue raised by the second count in the indictment, being whether the Respondent was in possession of the heroin in the basement. But this is not an issue which will be before the jury in a trial of the BMW count.

47    Nor can there be any objection to the proceedings before Judge Finnane simply because evidence might be tendered by the Crown which raises a doubt about the correctness of the earlier acquittal. In Storey the High Court was considering the impact of an acquittal at one trial on the admissibility of evidence at a subsequent trial for a different offence, where the Crown sought to lead evidence which was relevant both to proof of the offence on which the accused had been acquitted and proof of the offence for which he was to be tried.

48    Although the High Court was divided as to the outcome of the appeal, all members of the Court accepted that evidence tending to show that an accused was guilty of an offence for which he had been acquitted was admissible at a subsequent trial provided that it was relevant for some purpose other than to challenge the acquittal and provided that the jury can be, and is, directed that they cannot use the evidence in any way to deny the earlier acquittal.

49    Barwick CJ stated the principle as follows (at 372):

The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.

It is unnecessary to quote from the judgments of the other members of the court for they do not seem to me in substance to differ from the statement of principle formulated by the Chief Justice, see Gibbs J at 387, Mason J at 397, Jacobs J at 410 and Aitkin J (with whom Stephen J agreed) at 424.

50    The Respondent brought to the attention of this Court a recent decision of the House of Lords which, according to the Respondent supported the decision of Judge Finnane. In R v Z [2000] 3 All ER 385 it was held that on a charge of rape the prosecution was not prevented from leading as similar fact evidence the testimony of three complainants to the effect that the accused had raped each one of them notwithstanding that in each case the trial of an offence arising from the complaint had resulted in an acquittal. There is no reference in any of the judgments of their Lordships to Storey.

51    In my opinion there is nothing in the judgments in R v Z which would support the granting of a stay in the present case. It appears to me to be directly contrary to the arguments put forward to sustain the decision of Judge Finnane. Their Lordships placed a qualification on the general statements made by Lord MacDermott in Sambasivam’s Case at 479, as to the effect of an acquittal on subsequent proceedings and which are at the very heart of the arguments relied upon by the Respondent.

52    Further the effect of the decision in R v Z is that the principle of double jeopardy is not infringed, if in later proceedings the acquittal is challenged by evidence adduced to prove that the accused was guilty of the earlier offence. The principle is infringed if the accused is put on trial again for the offence of which he has been acquitted or if in some other way he is to be punished again for the same offence, per Lord Hope of Craighead at 387, Lord Hutton at 403, and Lord Hobhouse at 408.

53    The decision appears to me as inconsistent with Storey in that their Lordships saw no distinction between the admission of evidence which, on the one hand, only tended to show that the accused was guilty of the offence for which he had been acquitted but was adduced for some other reason than to assert that the accused was guilty of that offence, and evidence which, on the other hand, was adduced to prove that the accused was in fact guilty of the earlier offence if that fact was relevant to the proof of the offence for which he is later being tried. However, that was a distinction which was maintained throughout the judgments in Storey. The decision also appears to me to be inconsistent with the views expressed as to the weight to be accorded to an acquittal in Rogers.

54    In my opinion in accordance with Storey the evidence which the Crown would rely upon in order to prove that the Respondent had possession of the heroin in the BMW does not necessarily prove that he had possession of the drugs in the basement. It does not matter that the evidence might tend to suggest that he did, provided that the jury are directed that they cannot use the evidence in any way inconsistent with the acquittal and that they cannot find that he was in possession of the heroin in the basement. In my view, the jury could find the accused guilty of the BMW count without the need in any way to review or reconsider the acquittal on the basement count. A conviction on the BMW count would not be inconsistent with the acquittal on the basement count.

55    I have already indicated my view that Judge Finnane was correct to reject the other basis put forward for the stay of the proceedings. It was argued before his Honour and before this Court that the trial of the BMW count would cause the Respondent irremediable unfairness because of what is said to be the inconsistent basis upon which the present proceedings are being conducted with the manner in which the earlier proceedings were conducted. It is submitted that the Crown is bound to conduct a prosecution of a particular offence in the same way on each occasion it is before the Court. It is said that the prosecution is bound by forensic and tactical decisions made in prior proceedings which have ended without verdict.

56    The particular complaint is that, although in the trial before Judge Bellear the Crown did not seek to introduce into evidence the Respondent’s testimony before Judge Williams, it has indicated its present intention to do so on any future trial of the BMW count. The argument is that, if the Crown were permitted to adduce that evidence in the current proceedings, it would in effect obtain an advantage as a result of the discharge of the jury by Judge Bellear and that would be unfair to the Respondent. It is submitted, therefore, that the Crown should be bound to conduct its case in the way it did in the trial before Judge Bellear, that is without the evidence given by the Respondent before Judge Williams.

57    This submission is said to be supported by the general proposition that the Crown is to conduct proceedings against an accused fairly. But particular reliance is placed upon the practice of this and other appellate courts to refuse to exercise their discretion to order a retrial where a conviction has been quashed as a result of some defect in the prosecution at trial and where to order a retrial would permit the Crown to make a new or different case before another jury: R v Wilkes at 518; King v The Queen (1986) 161 CLR 423 at 433; R v Anderson (1991) 53 A Crim R 421 at 449; Jimanez v The Queen (1992) 173 CLR 572 at 590; Parker v The Queen (1996) 186 CLR 494 at 539.

58    But this practice is an aspect of the principle of double jeopardy and seems to me to have no relevance at all to the further trial of a count which did not result in a verdict at a previous trial. In any event, there is no general rule or practice that prohibits or hinders the Crown on a re-trial after appeal from presenting its case in any way or on any charge it deems appropriate. If there is a change in the tactics employed or in the evidence to be led at the re-trial which results in any prejudice to an accused, the remedy is to be found in an adjournment before the trial or a discharge of the jury during the trial. It does not by itself justify a stay of proceedings in the present case.

59    In my opinion the grounds upon which Judge Finnane ordered the stay of proceedings were erroneous and there is no other basis upon which it can be said that the proceedings before him were an abuse of process or otherwise required that the prosecution be stayed.

60    However, nothing that I have said in this judgment should be taken as an expression of any opinion as to whether evidence of the testimony of the Respondent before Judge Williams, or any part of it, should be admitted into evidence or, what, if any, evidence relating to the heroin in the basement should be placed before the jury. These are matters for the trial judge to determine and discretionary considerations based upon fairness to both parties may well arise. What directions should be given by the trial judge in order to ensure the effectiveness of the Respondent’s acquittal will, of course, depend upon what evidence is ultimately before the jury.

61    I propose that the appeal be allowed and the order of Judge Finnane staying the proceedings be quashed.