R v Garth & Anor
[2008] VSC 210
•20 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8734 of 2007
| THE QUEEN | Plaintiff |
| v | |
| ROGER MARK GARTH & Anor | Defendants |
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JUDGE: | JUDD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2008 | |
DATE OF JUDGMENT: | 20 June 2008 | |
CASE MAY BE CITED AS: | The Queen v Garth and Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 210 | |
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ADMINISTRATIVE LAW - Order to review – Error of law – Discretion to stay trial as an abuse of process – double jeopardy
CRIMINAL LAW – accused found not guilty of rape but jury discharged without verdict on remaining charges including alternative charges of sexual penetration of a child under 16 – accused presented for trial a second time on the remaining charges – whether the second trial would controvert the earlier acquittals – common element - double jeopardy
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J McArdle QC | Office of Public Prosecutions |
| For the First Defendant | Mr P. Tehan QC with Mr L. Carter | Ronald V. Tait & Co |
| For the Second Defendant | No appearance |
HIS HONOUR:
This is an application, made by Originating Motion, in which the Director of Public Prosecutions seeks an order in the nature of certiorari to quash an order made by a judge of the County Court in which the further prosecution of the first defendant (the accused) on three counts of sexual penetration of a child under 16 be stayed as an abuse of process. The application is made under Order 56 of the Rules of Court. There was no appearance for the second defendant.
The accused was first presented for trial in the County Court at Melbourne on 22 February 2005 on three counts of rape, three counts of sexual penetration of a child under the age of 16 and one count of committing an indecent act with the child. His defence at trial was that the events did not occur and that the complainant’s evidence was a fabrication. The events were alleged to have taken place over two nights in January 1998 when the complainant and her grandmother spent a few days in Rye, on the Mornington Peninsular, at the house occupied by the mother of the accused. Each charge of rape was coupled with an alternative charge of sexual penetration of the complainant who, it was accepted, was under the age of 16 at the time. The charge of rape and corresponding charge of sexual penetration involve a common element, requiring proof of sexual penetration.
The trial took place over two days and on 28 February 2005 the jury returned verdicts of not guilty on Counts 1, 4 and 6, being the three counts of rape, but informed the court that they could not agree on the remaining charges. The jury was discharged without verdict on the remaining charges.
On 6 August 2007, the accused was again presented for trial in the County Court on a “filed over presentment” in which he was charged with three counts of sexual penetration of a child under the age of 16 and one count of committing an indecent act. These were the very same charges for which the jury did not return a verdict at his first trial. At the commencement of the second trial, counsel for the accused made submissions to the trial judge that his trial on the sexual penetration charges should be permanently stayed because retrial would impugn the integrity of the verdict of the jury at the first trial.
Before me the DPP submitted that the judge erred; first, by failing to approach his task as involving the exercise of a discretion. It was submitted that his Honour dealt with the application for a stay as if the question before him was whether the trial would controvert the previous verdict. Secondly, and as a corollary, the judge failed to take account of relevant considerations which ought to have been taken into account in the exercise of discretion. These considerations may be broadly stated as the nature and seriousness of the offences with which the accused was charged. Counsel for the DPP also submitted that if his Honour’s approach to the application was correct, it would invite an accused charged with an alternative offence, as in the present case, to apply for a stay so as to interrupt a jury delivering a verdict on the alternative charge, should the accused be acquitted of the principal charge.
In the alternative, the DPP submitted that the judge based his ruling upon a consideration of the “issues” to be relitigated in the second trial which was not a matter relevant to the exercise of discretion. While it is permissible to compare the elements of the charge for which the accused was acquitted with the elements of the charges in the second trial, the trial judge, it was submitted, made his decision based on an analysis of the issues.
Counsel for the accused supported the decision of the trial judge, submitting that the judge correctly formulated the question before him namely, whether relitigating the sexual penetration charges in a second trial would controvert the verdict in the first trial. They submitted that the judge compared the elements of the offences, identified the common element of sexual penetration and correctly concluded that to relitigate the alternative charges would be to controvert the verdict at the first trial. Counsel for the accused further submit that insofar as the judge was required to take into account other matters in the exercise of his discretion he did so or should be taken to have done so. They submit that the ruling was confined to the facts of the case and does not threaten to undermine jury deliberation upon alternative charges. Counsel for the accused argued that an identification of the real issue in the first trial, namely, whether sexual penetration had taken place at all, was a relevant consideration in determining whether a stay should be granted.
It is common ground that each rape charge and its corresponding alternative charge involve a common element, requiring proof beyond reasonable doubt that the accused had sexually penetrated the complainant in the manner alleged. It is also common ground that the circumstances of this case do not give rise to a plea at bar of autrefois acquit. The trial judge was called upon to exercise a discretion to stay the trial as an abuse of process on the ground that the trial would expose the accused to double jeopardy by relitigating an element of the charges for which he was acquitted.
There was no dispute between the parties concerning the principles to be applied upon an application for judicial review for error of law on the face of the record.[1] Nor was there any dispute as to what constitutes the record for the purpose of this application. The parties accept, and I agree, that the record is constituted by the reasons of the trial judge, the presentment in the first trial and the new presentment.[2]
[1]Craig v South Australia (1995) 184 CLR 163 at 175.
[2]Flaherty v DPP & Anor [2003] VSC 234, [15]-[20].
The decision of the High Court in R v Carroll[3] became central to the submissions made to the trial judge, his Honour’s ruling and in submissions before me. In Carroll, the High Court held that a perjury indictment was an abuse of process and should have been stayed because the prosecution of the alleged perjury would controvert the verdict of acquittal entered at an earlier trial. On his trial for murder in 1985 the accused in that case had given evidence that he did not kill Deidre Kennedy. He was acquitted. More than 14 years later he was charged with knowingly giving false testimony at his trial to the effect that he did not kill her. At his perjury trial the accused submitted that the principle of res judicata and autrefois acquit prevented him from being tried again in respect of facts which constituted the offence of perjury. His submission was rejected. Following his conviction he appealed to the Court of Appeal which treated the question before it as being whether there were grounds for the exercise of a discretion by the trial judge to stay the trial on the charge of perjury as an abuse of process. That was also the basis upon which the High Court dealt with the matter.
[3](2002) 213 CLR 635.
Underlying the “double jeopardy” ground for a stay relied upon in Carroll are what were described by Gleeson CJ and Hayne J as “some fundamental underpinnings of the criminal law”.[4] These underpinnings reflect the competing tensions between the interests represented in the criminal trial system administered in this country. They include, the imbalance of power between the accused and the state; Blackstone’s precept “that it is better that ten guilty persons escape, than that one innocent suffer”[5] the need to safeguard the community from an abuse of the power to prosecute; and the need for finality. These propositions do not stand alone.
At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.[6]
The High Court recognised in Carroll that the criminal justice system is based upon values that may pull in different directions.
[4]R v Carroll at 643-5.
[5]Blackstone, Commentaries (1769) (1966 reprint), book 4, C27, at 352.
[6]R v Carroll at 643-4.
Distinguishing the case of a person acquitted of a charge who then is required to stand trial again for the same offence, Gleeson CJ and Hayne J said,
That is not what was done in the present case. The respondent, having been acquitted of the charge of murder, was not indicted again on that charge. Nonetheless, some, but not all, of the facts which it would be necessary to prove to establish the charge of perjury brought against the respondent were facts which, together with other facts, constituted the elements of the offence of murder of which he had been acquitted. Common to both charges was the prosecution's allegation that the respondent had killed Deidre Kennedy. To establish the charge of murder other facts (particularly the intention with which the killing occurred) had to be established and those other facts were not at issue at the perjury trial. On the perjury trial the prosecution had to demonstrate that the respondent had given sworn evidence that he did not kill Deidre Kennedy and, of course, that formed no part of the proofs the prosecution had to make on the murder trial. What the prosecution had to prove at each trial was, therefore, not identical.
Nonetheless, the factual inquiries made at the two trials, in the end, came to focus upon the same issue - did the respondent kill Deidre Kennedy? At his trial for murder, the issue which was fought was whether it was the respondent who had killed her. The trial was conducted on the footing that there had been a murder. On his trial for perjury there appears to have been no controversy about the fact that the respondent had sworn that he had not killed Deidre Kennedy; again, the focus of factual inquiry was, did he kill her? In the course of argument in the Court of Appeal the prosecutor expressly acknowledged that the perjury case was conducted, in practical effect, as a re-trial for murder.[7]
[7]R v Carroll at 644. Emphasis added.
The issues under consideration in Carroll were similar to those before the trial judge in the present case, although of course the charges are quite different. In Carroll the issue at the first trial was whether the accused had killed Deidre Kennedy. In the present case the issue at the first trial was whether the accused had sexually penetrated the complainant. In both cases the prosecution was required to prove other elements - in Carroll the requisite intention and in the present case the absence of consent and knowledge thereof. In the present case there was no issue as to the age of the complainant at the relevant time, leaving as the only issue at the second trial of the accused the question whether he had sexually penetrated the complainant.
The circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined.[8] There are some clear categories. One such category is “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct.”[9] In Carroll, Gleeson CJ and Hayne J directed their attention to the ambit and effect of the proposition that a verdict of acquittal is to be treated as incontrovertibly correct explaining the principle thus:
[8]R v Carroll at 657.
[9]Rogers v The Queen (1994) 181 CLR 251 at 273.
The principle is stated in various ways. In Garrett v The Queen, Barwick CJ, with whose reasons Stephen, Mason and Jacobs JJ agreed, described it as being that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict" (emphasis added). Reference to calling in question and tending to overturn give the principle great width: wider than may be thought to have been stated by the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya, a case often referred to in this connection.
In Connelly v Director of Public Prosecutions Lord Pearce said:
A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas. (emphasis in original)
His Lordship was speaking in a context in which the reference to a discretion was related to the inherent jurisdiction of a court to prevent oppression and abuse of process. By hypothesis, in a case of the kind his Lordship had in contemplation, the laying of a charge would constitute oppression and abuse of process, when viewed in the light of the considerations of double jeopardy which underlie a plea of autrefois acquit, even though such a plea is not available.
There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.
The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child.
In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent's sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible.[10]
[10]R v Carroll at 648-649.
Before me the DPP relied upon the decision of the High Court in AJS v The Queen[11] and that it was not drawn to the attention of the trial judge on the application for a stay. The DPP relied upon this decision to submit that the verdict of acquittal on the counts of rape did not create an estoppel, res judicata or double jeopardy in relation to the proposed trial of the accused on the charges of sexual penetration. In AJS the accused had been convicted of incest but his conviction was set aside by the Court of Appeal which ordered a new trial. Section 47(1) of the Crimes Act 1958 (Vic) provided an alternative offence which, although not expressly charged on the presentment, was available to the jury if not satisfied with the guilt of the accused on the primary charge. The accused sought special leave to appeal to the High Court contending that the Court of Appeal should have directed the entry of judgment and verdict of acquittal on the charge of incest. He did not, however, dispute that it would then be open for him to be tried for the offence of committing an indecent act with the child who was under 16 years of age at the relevant time.
[11](2007) 81 ALJR 1208; [2007] HCA 27.
Gleeson CJ, Hayne, Hayden and Crennan JJ held in a joint judgment that a new trial of the accused, limited to a charge of committing an indecent act, would not controvert the verdict. They held that there was no second or subsequent prosecution but a continuation of so much of the original prosecution as remained alive after the Court of Appeal’s determination of the appeal.[12] In the present case the DPP relied particularly upon the passage of the joint judgment which is set out in full below.
No question of double jeopardy arises in the present matter. The proceedings commenced by the prosecution against the appellant were, as the Court of Appeal’s orders recognised, only partly determined by that Court’s disposition of the appeal. The second of the offences now under consideration (the offence of committing an indecent act) was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce. In Pearce, the prosecution sought and obtained convictions for two offences charged in the one indictment. Further, unlike Island Maritime, there would be no separate institution of a second prosecution. In this case the prosecution does not seek to institute new and different proceedings against the appellant after the final determination (against the prosecution) of earlier proceedings. The charge of incest preferred against the appellant has now been finally resolved in his favour. He is entitled to the entry of judgment and verdict of acquittal of that offence. But the other, lesser, statutory alternative offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined by the Court of Appeal and remains unresolved.[13]
[12]Ibid at 1210-1211.
[13]Ibid at 1213.
In my view the decision in AJS does not assist the DPP. There are material differences between the circumstances in AJS and the present case. In the present case the accused was first presented for trial with the sexual penetration charges as alternative charges to the primary counts of rape. He was acquitted of rape but the jury could not agree on the remaining charges. The prosecution now seeks to present the accused for trial on the very same charges as were before the jury on the previous occasion. There is to be a second trial on the same charges. Importantly, the statutory alternative under consideration in AJS did not depend upon proof of the same facts to establish the charge. The joint judgment continued:
When an accused person has been acquitted of a charge by verdict of a jury, it will not be possible to know why the jury reached its verdict. In those circumstances, the reference to the person having the "full benefit" of an acquittal may reflect the opacity of that verdict. But it is important to recognise that the references made to the "full benefit" of an acquittal are no more than a particular restatement of a more fundamental principle. That principle is that the verdict, as recorded in the court's record, is not to be controverted. And where, as here, the reasons for quashing the conviction are known, the reasons for directing entry of judgment and verdict of acquittal are known. There would be a controverting of that record only if the jury were to be left in a position where in the course of considering whether the appellant had committed an indecent act they might consider whether there had been, or may have been, an act of digital penetration of the complainant. A concession by the prosecution that the evidence may not be understood by the jury as establishing that there had been that penetration, or in default of such a concession, a direction to that effect, would give the appellant the full benefit of the verdict to which he was and is now entitled in respect of the count of incest.[14]
[14]Ibid at 1214. Emphasis added.
On behalf of the DPP it was further submitted that even if the discretion to grant a stay was enlivened, because there was a risk that the verdict may be controverted, a judge was nevertheless required to undertake a balancing exercise such as that undertaken in R v P, NJ (No 2).[15] Gray J, delivering the principle judgment of the Court of Criminal Appeal in P, NJ (No 2), said,
In determining whether or not proceedings should be stayed as an abuse of the court’s process the court is required to undertake a balancing exercise. As Mason CJ, Dean and Dawson JJ observed in Walton v Gardiner:
[The] question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of the charges or serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[15](2006) 174 A Crim R 1; [2007] SASC 135.
In that case the appellant had been found not guilty of attempted murder but guilty of wounding with intent to cause grievous bodily harm. The victim of the assault died as a result of the injury 10 months after the appellant’s conviction. Six months later the appellant was charged with murder. He applied to the court for an order that he not be prosecuted for murder. He advanced pleas of autrefois convict and autrefois acquit. In the alternative, he sought an order that the proceedings be stayed as an abuse of process. His application to the trial judge was dismissed and the appellant sought to review the dismissal in the Court of Criminal Appeal.
Gray J referred to Carroll and in particular to passages from the joint judgments of Gleeson CJ and Hayne J and that of Gaudron and Gummow JJ. These passages were, however, considered in the context of an appeal against the exercise of a discretion where the complaint was that,
if the Information charging murder was allowed to proceed, the conduct of the prosecution case would necessarily call and rely on evidence capable of giving rise to inferences as to the appellant’s state of mind. It was submitted that the availability of the inferences would have the inevitable consequence of calling into question the appellant’s acquittal of the crime of attempted murder. It was argued that on the trial for murder the availability of inferences as to the appellant’s state of mind exposed the appellant to double jeopardy. The trial, it was said, would necessarily involve the tender and use of evidence that would give rise to a challenge to the correctness of the previous acquittal.
Counsel for the appellant further submitted that any judicial direction to the jury designed to warn against the risk of drawing an inference inconsistent with the earlier verdict of acquittal could not realistically guard against the prejudice that would arise to the appellant. It was said that it was inevitable that there would be reference to the former trial and that there would be incurable confusion for the jury.
The effect of the submission of counsel for the appellant, with respect to the plea in bar of autrefois acquit, was that the plea could be maintained. However, it was accepted that in substance the same issues arose on the application for a stay on the ground of an abuse of process.
Counsel for the appellant submitted that this was an appropriate case for a permanent stay to prevent an abuse of process and in particular, oppression and unfairness to the appellant. It was said that the concerns that underpinned the doctrine of double jeopardy were present and should be given full force and effect by this Court. It was said that the Judge had failed to give proper weight to these matters.[16]
[16]Ibid at 44.
The elements of the charge of murder were not the same as for attempted murder and therefore the pleas at bar did not succeed. The appellant had been acquitted at his trial for attempted murder by a judge alone on the basis, found by the trial judge, that he was not satisfied beyond reasonable doubt that the appellant had, at the time of the stabbing, an actual intention to kill the victim. The prosecution in that case accepted that they could not allege at the second trial that the appellant had an intention to kill but instead would allege an intention to inflict grievous bodily harm. Thus, there would be no common element.
In order to meet that difficulty the appellant in P, NJ (No 2) submitted that the evidence adduced at his murder trial might raise in the minds of the jury the inference that he intended to kill, thus exposing him to a risk that the correctness of his previous acquittal would be challenged. This refinement of the appellant’s argument necessarily diverted the attention of the Court of Criminal Appeal away from a comparison of common elements towards a consideration of the effect upon the jury of evidence proposed to be adduced and the risk of what might possibly occur in their minds. It was submitted by the appellant that he would suffer prejudice that could not be adequately guarded against by directions to the jury.
The appellant in P, NJ (No 2) also submitted that the trial judge failed to properly weigh relevant considerations in the exercise of her discretion. Counsel for the prosecution, on the other hand, submitted that no error in the exercise of the judge’s discretion had been demonstrated.[17] Gray J found that the trial judge undertook the balancing exercise referred to in Walton v Gardiner[18]. His Honour said:
In undertaking the balancing exercise the Judge had regard to the following considerations: whether or not the trial of the murder charge would controvert the verdicts returned upon the first trial; the impact of the murder charge upon the appellant; the delay in laying the murder charge, its consequence for the appellant and the public interest in matters being prosecuted expeditiously; the possibility that the murder charge, in the light of the previous trial and verdicts, may result in an outcome that undermines the administration of justice; the public interest in persons who have committed offences being charged and brought to justice for those offences; the interest of H’s family in having the person who has harmed them charged and prosecuted; and the public interest in ensuring that the appellant is not treated unfairly or oppressively by the administration of justice.[19]
The DPP relies upon this passage to contend that the trial judge in the present case was required to approach his task in the same way, undertaking the balancing exercise having regard to like matters.
[17]Ibid at 26.
[18](1993) 177 CLR 378.
[19](2006) 174 A Crim R 1 at [33].
Walton v Gardiner was a case in which medical practitioners at the Chelmsford Private Hospital in Sydney were the subject of complaints made in 1986 to the medical tribunal. The complaints alleged misconduct in their treatment of patients at the hospital between 1973 and 1977. The New South Wales Court of Appeal ordered a permanent stay of the complaints against two of the practitioners on the grounds that they were an abuse of process because of the prolonged delay after the relevant facts remained. A subsequent royal commission reported adversely on the conduct of the practitioners and in 1991 fresh complaints were made against them which, though not the same as the earlier complaints, arose out of the same pattern of professional conduct as had given rise to the earlier complaints and raised issues which substantially overlapped those that would have arisen under the earlier complaints. The Court of Appeal stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process.[20] There was no trial or determination of the complaints prior to the applications for a stay. The grounds upon which the Court of Appeal granted the stay was the unfair or unjustifiably oppressive nature of the proposed proceedings before the medical tribunal. There had been a considerable delay between the complaint and the proposed hearings. The Court of Appeal balanced a variety of factors and considerations. While considering the rule against “double jeopardy” as relevant, the Court of Appeal acknowledged that the case did not fall within the strict rule, in that the complaints (or issues) were not precisely the same as those which had been involved in Heron v McGregor [in which the first stay had been granted in 1996] and there had been no full hearing on the merits in the earlier proceedings.[21]
[20]Walton v Gardner (1993) 177 CLR 378 at 379.
[21]Ibid at 396-397.
The balancing exercise undertaken in Walton v Gardiner and by the trial Judge in P, NJ (No 2) were undertaken in quite different circumstances to those which were before the court in Carroll and the trial judge in the present case. The Court of Criminal Appeal in P, NJ (No 2) was considering a submission that the balancing exercise that had been undertaken by the trial judge was inadequate. Importantly there was no common element. P, NJ (No 2) does not stand for the proposition that the same balancing exercise must be undertaken on an application for a stay when there are common facts and a common element with a charge for which the accused has been acquitted. Nor, in my opinion, does Walton v Gardiner.
The exercise of discretion to grant a stay for abuse of process involves different considerations when the double jeopardy ground is invoked on the basis that there are common facts and a common element in a first and second trial. In Carroll, Gaudron and Gummow JJ said of the power to stay for abuse of process in the circumstances of that case:
The power to stay is said to be discretionary. In this context, the word “discretionary” indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.
In my opinion the second trial of the accused involved an attempt to relitigate an element (sexual penetration) of the rape charges on which he was acquitted. I would respectfully adopt the words of Gleeson CJ and Hayne J that “the case for a stay of proceedings was irresistible”. This is because there was manifest inconsistency between prosecuting the sexual penetration charges at the second trial and the acquittal on the rape charges in the first trial.
Considerations such as the seriousness of the offences, the maximum penalty, the particular circumstances of the offences and the effect upon the victim will all be matters of great weight when considering whether or not a stay should be granted where a jury verdict is not called into question by a subsequent trial. They are not, of course, the only matters. But it must be remembered that when formulating or restating the “double jeopardy“ principle applied in Carroll, the High Court did so against a background of considerations which included all of the matters which the DPP contend should be taken into account, and more. Where the circumstances reveal that to proceed with a trial would be manifestly inconsistent with a previous acquittal, double jeopardy, as a ground for a stay, reflects the balancing exercise the DPP submitted the trial judge should have undertaken.
In my opinion, the judge approached the question before him correctly. Having found that the prosecution would be relitigating an element of the previous charges upon which the accused had been acquitted there was no requirement for the trial judge to separately consider the matters which the DPP now submits were overlooked. I note that counsel for the accused submitted that the trial judge had in fact taken into account or must have taken into account all of the matters which the DPP contends should have been addressed. It is not clear to me that his Honour separately considered those matters although, as I have found, he was not required to do so because they are embodied in the ground upon which the accused sought his stay. They were expressly identified by the High Court[22] as “fundamental underpinnings of the criminal law” which are reflected in the ground relied upon.
[22]R v Carroll at 643.
Counsel for the accused also submitted that the argument proceeded before the trial judge on the question whether the double jeopardy ground was made out. It was not submitted on behalf of the DPP on that occasion that if the trial judge was satisfied of the inconsistency supporting the ground that he was then required to separately consider additional matters before granting the relief. There is substance in that argument, although it may not be an answer if relevant considerations were ignored. In my opinion however, the submission that his Honour erroneously ignored or failed to take account of such matters is incorrect and overlooks the importance attaching to each and every one of those considerations as the foundation for the ground relied upon by the accused.
The DPP finally submitted, in the alternative, that the trial judge erred by having his attention diverted or by diverting his attention to the issues in the first trial when what he should have considered were the elements of the rape charge and the elements of the sexual penetration charges. That submission is without substance. His Honour held:
I find the Crown in this trial is relitigating effectively the fundamental issue of the earlier trial, that is the element of sexual penetration of the complainant, which the accused having been acquitted on the charge of rape whereby the same acts of sexual penetration were alleged against the accused as an element of the three rape counts.
I again refer to paragraphs 40 and 47 of the judgment in Carroll (supra) and the references by Gleeson CJ and Hayne J to the issues at the first trial and the elements of the new charge with the elements of the charge on which the accused had been acquitted.
Having directed my attention to the elements of the offences and the issues at the first trial, I find this to be a case where a second prosecution is oppressive and an abuse of process.
In my opinion, his Honour correctly directed his attention to the elements of the offences. The rape and sexual penetration offences had a common element which, as his Honour said, was the fundamental issue at the earlier trial. That made the case before him one in which manifest inconsistency appeared and in those circumstances the case for a stay was irresistible. There being no error of law on the face of the record, the application must fail.
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