R v Gilham - [2007] NSWCCA 323

No judgment structure available for this case.

Reported Decision: 178 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: GILHAM v REGINA [2007] NSWCCA 323
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 August 2007

JUDGMENT DATE:
26 November 2007

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 135; Hulme J at 224; Hidden J at 274; Latham J at 275

DECISION: 1. Leave to appeal on Grounds 1 and 2 granted ; 2. Leave to appeal otherwise refused ; 3. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Pleas at bar not available – Principle of Incontrovertibility – “manifestly inconsistent” test – Extension of principle of incontrovertibility to convictions – Whether prosecution inconsistent with previous acquittal and conviction - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – s 394A of the Crimes Act 1900 – Guilty plea to manslaughter results in acquittal for murder – Whether an acquittal also indicates the accused was in jeopardy - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Point of commencement of trial – Whether arraignment or empanelment of jury point of commencement of trial - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Absence of acquittal on the merits – Whether evidence was capable of supporting conviction or disproving provocation case - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Whether findings by sentencing judge subject to incontrovertibility principle - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Stay of Proceedings – Abuse of Process – Whether subsequent prosecution was an abuse of process given prior acquittal and conviction – Where the accused found to be in jeopardy but no abuse of process found

LEGISLATION CITED: Crimes Act 1900, s23, 394A, 395
Criminal Appeal Act 1912, s5F
Criminal Procedure Act, s 153, 154, 157
Criminal Code (Canada), s606(4)
Evidence Act 1995, s4(2)
Marine Pollution Act 1987
Road Traffic Act 1972 (UK), s 5

CASES CITED: AJS v The Queen (2007) 81 ALJR 1208
Barnes v Gougousis [1969] VR 1019
Broome v Chenoweth (1946) 73 CLR 583
Connelly v Director of Public Prosecutions [1964] AC 1254
Director of Public Prosecutions (SA) v B (1998) 194 CLR 566
Director of Public Prosecutions v Porthouse [1989] RTR 177
Donaldson v Western Australia (2005) 31 WAR 122
Garrett v The Queen (1977) 139 CLR 437
Hackwill v Kay [1960] VR 632
Haynes v Davis [1915] KB 332
Island Maritime Limited v Filipowski (2006) 226 CLR 328
Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401
Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201
Maxwell v The Queen (1996) 184 CLR 501
Mraz v The Queen [No 2] (1956) 96 CLR 62
Norbis v Norbis (1986) 161 CLR 513
Pearce v The Queen (1998) 194 CLR 610
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41
R v Dabhade [1993] QB 329
R v Elrington (1861) 121 ER 870
R v Gee (2003) 212 CLR 230
R v Hazeltine [1967] 2 QB 857
R v Helmling (NSWCCA unreported 11 November 1993)
R v Janceski (2005) 64 NSWLR 10
R v K; Ex parte Attorney General (Qld) (2002)132 A Crim R 108
R v Maxwell (1994) 34 NSWLR 606
R v McNeill (Ruling No 3) [2007] NFSC 4
R v Naraindeen (1990) 75 CR (2d) 120
R v Nicolaidis (1994) 33 NSWLR 364
R v Storey (1978) 140 CLR 364
R v VN [2006] 15 VR 113
Rogers v The Queen (1994) 181 CLR 251
Russo v Aiello (2003) 215 CLR 643
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
The Queen v Carroll (2002) 213 CLR 635
The Queen v Storey & Anor (1978) 140 CLR 364
Walton v Butler (2004) 150 A Crim R 341
Walton v Gardiner (1993) 177 CLR 378
Ward v Hodgkins [1957] VR 715
Washer v Western Australia [2007] HCATrans 056
Wemyss v Hopkins (1875) 10 LRQB 374
Williams v Director of Public Prosecutions [1991] 1 WLR 1160
Williams v Spautz (1992) 174 CLR 509
Spencer Bower, Turner and Handley, “The Doctrine of Res Judicata” 3rd ed. (1996)

PARTIES: Jeffrey Gilham (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3283

COUNSEL: P Boulten SC; P Lange (Appellant)
L Babb; J Caldwell; K Shead (Respondent)

SOLICITORS: Dean Lenz, Murphy’s Lawyers Inc
Gareth Christofi, Director of Public Prosecutions

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 468/2006

LOWER COURT JUDICIAL OFFICER: Howie J

LOWER COURT DATE OF DECISION: 21 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC

- 104 -

2007/3283

SPIGELMAN CJ
McCLELLAN CJ at CL
HULME J
HIDDEN J
LATHAM J

26 November 2007

Jeffrey GILHAM v REGINA

Judgment

On 28 August 1993 the Applicant’s mother, father and brother were stabbed to death. The Applicant was charged with the murder of his brother. The accused pleaded guilty to a charge of manslaughter of his brother. The plea was accepted in full discharge of the indictment for murder on the basis that the Applicant killed his brother as a result of provocation resulting from the fact that his brother had killed their parents.

Between 1993 and 2004 the Coroner held two inquests into the deaths of the Applicant’s parents, the second following another police investigation into the matter which had resulted in a referral to the Coroner. In 2000, at the end of this second inquest the Coroner, in effect, concluded the accused should stand trial for the murder of his parents. However, the Director of Public Prosecutions notified the Applicant that he declined to prosecute him, on the basis that there was no reasonable prospect of a conviction. A private prosecution commenced by the Applicant’s uncle was taken over by the Director and terminated.

In July 2004 a review of the investigations into the killings was undertaken and in October 2004 a re-investigation was commenced into the killing of the Applicant’s parents. A brief of evidence was sent to the Director on 22 November 2005. On 21 February 2006 the Director filed an ex-officio indictment, charging the Applicant with the murder of his parents, which is the subject of these proceedings.

The pleas of autrefois convict and autrefois acquit were not available because the Applicant had not previously been charged with murder of his parents. However, the Applicant sought a stay of proceedings on the basis that the prosecution constituted an abuse of process, contravening the principles of finality of litigation, incontrovertibility of decisions and “double jeopardy” in the sense embodied in the maxim bis vexari (no one should twice be vexed for one and the same cause). Howie J gave judgment against the Applicant.

Held (granting leave but dismissing the appeal):

The principle of incontrovertibility of an acquittal

(per McClellan CJ at CL, Hidden J and Latham J agreeing)

1. The incontrovertibility principle will be engaged where the prosecution seeks to establish at a later trial one or more of the elements necessary to establish the earlier offence. [151], [156], [274], [275]

The Queen v Carroll (2002) 213 CLR 635; Island Maritime Limited v Filipowski (2006) 226 CLR 328 explained.

Garrett v The Queen (1977) 139 CLR 437; Rogers v The Queen (1994) 181 CLR 251; Pearce v The Queen (1998) 194 CLR 610 considered.

Connelly v DPP [1964] AC 1254; Mraz v The Queen [No 2] (1956) 96 CLR 62; The Queen v Storey & Anor (1978) 140 CLR 364 referred to.

(per Spigelman CJ)

2. The test for incontrovertibility is whether a subsequent prosecution is manifestly inconsistent with a previous acquittal when the elements of the new charge are compared with the issues in the first trial. The principle does not extend to anything which may ‘call into question’ or ‘tend to undermine’ a previous acquittal. [10], [21], [23], [49], [51]

(2002) 213 CLR 635 discussed.

Rogers v The Queen

Pearce v The Queen

Island Maritime Limited v Filipowski

Garrett v The Queen

Connelly v Director of Public Prosecutions

R v Storey

AJS v The Queen

Washer v Western Australia

A. Was the Applicant acquitted?

(per McClellan CJ at CL, Hulme J, Hidden J and Latham J agreeing)

1. The Applicant was acquitted of the murder of his brother. It does not follow from the fact that the prosecutor led no evidence on the charge of murder that the accused did not have the benefit of a verdict of acquittal. [165], [166], [237], [274], [275]

Maxwell v The Queen (1996) 184 CLR 501; R v Maxwell (1994) 34 NSWLR 606 applied.

R v Naraindeen

(1990) 75 CR (2d) 120 referred to.

(per Spigelman CJ, Hulme J agreeing)

2. The acceptance of a plea of guilty to a charge of manslaughter involves an acquittal of the charge of murder. Even if no formal acquittal for the murder of the brother was recorded, the Applicant was entitled to such an order. [46], [247]

Maxwell v The Queen (1996) 184 CLR 501 applied.

R v Maxwell (1994) 34 NSWLR 606 approved.

R v Naraindeen (1990) 75 CR (2d) 120 referred to.

B. Is the current prosecution inconsistent with the Applicant’s acquittal?

(per McClellan CJ at CL, Hidden J and Latham J agreeing)

1. The acquittal of murder of the parents could not be reconciled with his acquittal for murder of the brother. [157]

(per Spigelman CJ)

2. The current prosecution is manifestly inconsistent in the sense outlined by Carroll. [31], [54]

(2002) 213 CLR 635 applied.

Pearce v The Queen (1998) 194 CLR 610; Island Maritime Limited v Filipowski (2006) 226 CLR 328 cited.

C. Was the Applicant in jeopardy?

(per McClellan CJ at CL, Hulme J, Hidden J and Latham J agreeing)

1. When murder is charged a plea to the lesser charge will result in a conviction for manslaughter and the accused must be in jeopardy for manslaughter. Given the conviction for manslaughter will involve an acquittal on the murder charge, and that a plea of autrefois acquit to murder would be available, the accused must also have been in jeopardy on the charge of murder. [173], [174], [237], [274], [275]

Island Maritime Limited v Filipowski (2006) 226 CLR 328; Regina v Dabhade [1993] QB 329 considered.

Maxwell v The Queen (1996) 184 CLR 501; R v Hazeltine [1967] 2 QB 857 cited.

2. The Applicant’s trial commenced when he was arraigned; as a result he was relevantly in jeopardy of the murder charge. [176], [237], [274], [275]

R v Nicolaidis (1994) 33 NSWLR 364 applied.

3. There was no defect in the indictment. It was not suggested that the evidence available to the prosecution could not, as a matter of law, support a conviction. The Crown only conceded that the quality of evidence available would not enable a jury to be satisfied beyond reasonable doubt that the Applicant was not provoked by his brother’s conduct in killing their parents. The Applicant was in jeopardy on the murder charge [196], [197], [237], [274], [275]

Island Maritime Limited v Filipowski (2006) 226 CLR 328 distinguished.

Regina v Dabhade [1993] QB 329; Williams v DPP [1991] 1 WLR 1160 considered.

R v Janceski (2005) 64 NSWLR 10; DPP v Porthouse [1989] RTR 177; Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401; Haynes v Davis [1915] 1 KB 332 referred to.

(per Hulme J)

4. It is of no significance that the Applicant’s acquittal on the murder charge and conviction on the manslaughter charge occurred in the circumstances they did, rather than after jury verdict following a fully contested trial. [249]

5. The distinction between evidence that would not enable a jury to be satisfied beyond reasonable doubt that the Applicant was not provoked and evidence that could not as a matter of law support a conviction is not a valid one. The law is not that where a case ends with a verdict by direction because the evidence could not support a conviction the accused was never in jeopardy. [239], [242], [246]

Island Maritime Limited v Filipowski (2006) 226 CLR 328 explained and doubted in part.

Broome v Chenoweth (1946) 73 CLR 583; R v Dabhade [1993] QB 329 referred to.

(per Spigelman CJ, dissenting)

6. Because the Applicant’s plea was accepted in full discharge of the indictment for murder prior to the empanelment of the jury, the Applicant was not relevantly in jeopardy. The point of arraignment is not the substantive commencement for purposes of the principles of incontrovertibility, finality and double jeopardy The Appellant was not in jeopardy. [70], [79], [87], [96]

(2006) 226 CLR 328 explained .

Broome v Chenoweth (1946) 73 CLR 583; Williams v Director of Public Prosecutions [1991] 1 WLR 1160 cited.

R v Nicolaidis (1994) 33 NSWLR 364; R v Janceski (2005) 64 NSWLR 10; R v Gee (2003) 212 CLR 230; R v McNeill (Ruling No 3) [2007] NFSC 4; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; Donaldson v Western Australia (2005) 31 WAR 122; Hackwill v Kay [1960] VR 632; Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201 referred to.

7. This was a case where the Crown accepted the plea of manslaughter in full discharge of the indictment for murder because it could not contradict the Applicant’s case of provocation on the available evidence. In such a case there has been no acquittal on the merits. The Appellant was not in jeopardy. [87], [93], [96]

Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401; Haynes v Davis [1915] KB 332; Broome v Chenoweth (1946) 73 CLR 583; Ward v Hodgkins [1957] VR 715; Island Maritime Limited v Filipowski (2006) 226 CLR 328; Pearce v The Queen (1998) 194 CLR 610 considered.

R v Dabhade

[1993] 2 WLR 129 explained and applied.

Barnes v Gougousis [1969] VR 1019 referred to.

The principle of incontrovertibility of a conviction

(per McClellan CJ at CL, Hulme J, Hidden J and Latham J agreeing)

1. The principles developed from the originally confined notions of double jeopardy should be extended to convictions. [202], [237], [274], [275]

The Queen v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 25 referred to.

(per Spigelman CJ)

2. The values underlying the principles of finality, incontrovertibility and bis vexari, as applied in the authorities to previous acquittals, should be extended to previous convictions. [108], [110], [111]

The Queen v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 25; Pearce v The Queen (1998) 194 CLR 610 considered.

Island Maritime Limited v Filipowski (2006) 226 CLR 328; Wemyss v Hopkins (1875) 10 LRQB 374 referred to.

3. When considering whether proceedings that may cast doubt on a conviction constitute an abuse of process which justifies a permanent stay, an analogous approach to that identified in Carroll is appropriate. It is necessary to identify whether there is a “manifest inconsistency” between the prior conviction and the new proceedings. [112]

A. Is the current prosecution inconsistent with the incontrovertibility of the Applicant’s conviction?

(per McClellan CJ at CL, Hulme J, Hidden J and Latham J agreeing)

1. This is a case where later proceedings will tend to undermine the integrity of the previous verdict. The verdict of guilty of murder of the parents would demonstrate the original verdict of manslaughter, and the lenient sentence given, were based on a false premise and tend to indicate that the Applicant was guilty of murdering his brother. [201], [237], [274], [275]

(per Spigelman CJ)

2. The doubt cast upon the previous conviction is only incidental and does not infringe the values underlying the applicable principles. [112], [113]

The Queen v Carroll (2002) 213 CLR 635 applied.

Abuse of Process

(per McClellan CJ at CL, Hidden J and Latham J agreeing)

1. With respect to both the acquittal and conviction, a conviction for the murder of the parents would raise an inconsistency between the verdicts of the kind the incontrovertibility principle seeks to avoid. It is not significant that the earlier verdicts were more favourable to the Applicant. This inconsistency weighs in favour of this Court intervening. [219], [274], [275]

R v Elrington (1861) 121 ER 870; Connelly v DPP [1964] AC 1254; DPP v Humphrys [1977] AC 1; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Rogers v The Queen (1994) 181 CLR 25; Pearce v The Queen (1998) 194 CLR 610 referred to.

2. The need to provide the accused with the full benefit of an earlier acquittal, which would mean the Applicant could not be convicted of killing his parents, is an additional factor in favour of intervention by this Court. [220], [274], [275]

3. Despite these factors, this case does not involve an abuse process requiring this Court’s intervention. The concern regarding inconsistency is significantly diminished where, as here, the assertions made by the accused in the earlier proceedings have not been tested and where the new prosecution is for a different offence. The public interest in prosecuting serious crimes must prevail. [222], [223] [274], [275]

(per Hulme J)

4. An approach which focuses on whether an abuse of process has occurred is preferable to one which tries to identify exactly how a prosecution may controvert a previous verdict. Although the current charges may involve a “scandal of conflicting decisions”, it would be a far greater scandal if the Applicant could not be prosecuted for two killings of which he may be guilty because of the prior prosecution. [269], [271], [272]

Garrett v R (1977) 139 CLR 437; R v Storey (1978) 140 CLR 364; Rogers v R (1994) 181 CLR 251; R v Carroll (2002) 213 CLR 635 considered.

Connolly v DPP [1964] AC 1254; Pearce v R (1998) 194 CLR 610 at 29; Island Maritime Limited v Filipowski (2006) 226 CLR 328 referred to.

(per Spigelman CJ)

5. With respect to the acquittal for the murder of the brother: as the Applicant was not in jeopardy, the breach of the incontrovertibility principle that has been identified is not sufficient to justify the relief sought by the Applicant. [56], [96], [97]

6. With respect to the conviction for manslaughter of the brother: where the Applicant has procured an unduly favourable result by pleading to a lesser charge, and was not in jeopardy of a conviction on the more serious charge, then the interests of the administration of justice are best served by allowing prosecutions of serious charges such as murder to proceed. [114]

7. Where the principles of finality, incontrovertibility, and double jeopardy have been breached, there is an abuse of process. [98]

The Effect of Delay

(per Spigelman CJ, McClellan CJ at CL, Hulme J, Hidden J & Latham J agreeing)

1. The trial judge was correct to conclude that the Applicant could receive a fair trial, despite the delay, with appropriate directions to the jury. With respect to the evidence that has been lost, it is appropriate to adopt the approach in R v Helmling. [122], [135], [235], [274], [275]

R v Helmling (NSWCCA unreported 11 November 1993) cited.

Oppression

(per Spigelman CJ, McClellan CJ at CL, Hulme J, Hidden J & Latham J agreeing)

1. The trial judge was correct to find that the public interest in permitting serious alleged crimes to be determined on their merits outweighs the Applicant’s expectation that no further proceedings would ensue. [130], [135], [235], [274], [275]

Walton v Gardiner (1993) 177 CLR 378; Island Maritime Limited v Filipowski (2006) 226 CLR 328 referred to.

2. This Court should be very slow to interfere with a broad evaluative judgment of this nature made by a trial judge following a balancing exercise, unless it is satisfied that a miscarriage of justice has occurred. This case does not satisfy this threshold for intervention. [131], [135], [235], [274], [275]

Norbis v Norbis (1986) 161 CLR 513; Russo v Aiello (2003) 215 CLR 643; Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 referred to.

2007/3283

SPIGELMAN CJ
McCLELLAN CJ at CL
HULME J
HIDDEN J
LATHAM J
26 November 2007

Jeffrey GILHAM v REGINA

Judgment

1 SPIGELMAN CJ: This is an application for leave to appeal, pursuant to s5F of the Criminal Appeal Act 1912, from an interlocutory judgment of Howie J refusing an application by the Applicant for a stay of an ex-officio indictment in which the Appellant is charged with the murder of his parents.

2 On 28 August 1993 the Applicant’s mother, father and brother were stabbed to death. The next day police charged the Applicant with the murder of his brother. On 5 April 1995, the accused pleaded guilty to a charge of manslaughter of his brother, which plea was accepted in full discharge of the indictment for murder. The basis of the plea of guilty was that the Applicant did kill his brother, but that occurred as a result of provocation resulting from the fact that his brother had killed their parents.

3 The principal issue in this case arises from the inconsistency between the new indictment on charges that the Applicant killed both his parents and the basis of the plea of guilty to the charge of manslaughter of his brother.

4 In addition to this issue, the Applicant seeks leave to appeal from the judgment of Howie J with respect to the effects of delay and the loss of evidence and on the basis of oppression.

The Principle of Incontrovertibility

5 The first ground of appeal is that his Honour erred in finding that the present proceedings did not controvert the previous acquittal of the Applicant on the charge of murder. This ground relies on the principle of incontrovertibility of an acquittal, as developed in recent Australian case law.

6 The principle is expressed in the joint judgment of Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251 at 273 in terms of: “The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct … That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice”.

7 In Pearce v The Queen (1998) 194 CLR 610 at [53], in a passage subsequently cited, Gummow J referred to the principle identified in Rogers as:

“[T]he need for orders and other solemn acts of the counts to be accepted (unless set aside or quashed) as incontrovertibly correct, thereby limiting the scope for conflicting decisions.”

res judicata pro veritate accipitur

8 The relevant principles, of which the principle of incontrovertibility is one, discussed by the High Court in a number of decisions since Rogers, for determining the effect of an acquittal in one criminal proceeding upon other criminal proceedings, have most recently been analysed in the joint judgment of Gummow and Hayne JJ in Island Maritime Limited v Filipowski (2006) 226 CLR 328, with which analysis Kirby and Callinan JJ agreed (see at [88]-[89] and [95]). Their Honours emphasised the values which underlie the applicable principles and the interaction of the principles:

interest reipublicae ut sit finis litium

res judicata pro veritate accipitur

nemo debet bis vexari pro una et eadem causa

Garrett v The Queen

Rogers v The Queen

R v Carroll

Rogers v The Queen

Thompson v Australian Capital Television Pty Ltd

R v Wilkes

Pearce [Pearce v The Queen

The Doctrine of Res Judicata

Journal of Legal History

Ashe v Swenson

…

[52] The values embraced by notions of double jeopardy require that autrefois acquit and analogous principles are given no narrow operation. In particular, neither the plea in bar nor the analogous principle applied in summary jurisdiction is to be confined to precluding the prosecution from controverting one or more elements of an offence charged first where the elements of that first offence are wholly included in the second. …”

9 Their Honours also said:

“[55] … the refusal to permit the prosecution to have a second opportunity to prove what was found not to have been established at an earlier trial is based in the need to maintain the incontrovertible character of that earlier decision.

[56] It may readily be accepted that the need to maintain the incontrovertibility of earlier decisions can be identified as an important root of the principles of issue estoppel that have been developed and are applied in civil proceedings. But in considering what are the principles that are to be applied in criminal proceedings, it is necessary to return to not only that particular root but also the other values which are encompassed by the notion of double jeopardy. It would be wrong to conclude the inquiry about the principles to be applied in the criminal law at the point of drawing some analogies with the separate principles of issue estoppel in civil litigation simply because those principles are seen to derive from one of the several roots that together are described as double jeopardy.

[57] Thus, what is revealed by the contrasting outcomes postulated by reference to the example given earlier, according to whether the first offence is tried by jury or tried summarily, is that to treat the plea of autrefois acquit as yielding no more than a form of issue estoppel does not give effect to all of the values embraced by the notion of double jeopardy. In particular, to treat an acquittal on one charge as barring a subsequent prosecution concerning the same events as founded that first charge only where all the elements of the first offence are included in the elements of the second offence not only would fail to accept that the earlier decision was correct, but also would require the individual to relitigate matters that the public interest requires be treated as finally determined.”

10 The ground of appeal is expressed in terms of the principle of incontrovertibility. However, the application of this principle must be informed by the values underlying that and the other principles, most relevantly the principle of double jeopardy of bis vexari, in its shortened Latin form.

11 The most directly applicable authoritative statement of the principle of incontrovertibility is found in the judgments of the High Court in The Queen v Carroll (2002) 213 CLR 635. In that case, as in this case, the plea in bar relevantly autrefois acquit, did not apply. Nevertheless, it is now clear that the group of principles extend beyond such pleas in bar.

12 In Rogers at 255, 280, affirmed in Pearce at [29], this extension occurred under the rubric of the power of the Court to prevent an abuse of its process. Subsequently, on the basis of the observations of Gummow J in Pearce at [54], the High Court has identified the three principles reflecting underlying values, for the prevention of abuse of process where there has been a previous acquittal.

13 The public interest in the administration of justice, which underlies all the relevant principles, was emphasised in the joint judgment of Gaudron and Gummow JJ in Carroll at [86]:

Rogers v The Queen

Pearce v The Queen

Abebe v The Commonwealth

14 In Carroll, Gleeson CJ and Hayne J said in their joint judgment:

Rogers

Rogers v The Queen

R v Wilkes

Mraz v The Queen [No 2]

R v Storey

…

Garrett v The Queen

or called in question

tend to overturn

Sambasivam v Public Prosecutor, Federation of Malaya

15 In their joint judgment Gaudron and Gummow JJ said of this passage:

Rogers

Garrett

16 The joint judgment of Gleeson CJ and Hayne J went on to say, in reasoning which, as I understand the judgment of Gaudron and Gummow JJ, their Honours did not find it necessary to adopt:

Connelly v Director of Public Prosecutions

on the facts

…

[40] 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.

…

[42] 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.

…

[44] … The inconsistency between the charge of perjury and the acquittal of murder was direct and plain. The laying of the charge of perjury, solely on the basis of the respondent's sworn denial of guilt, for the evident purpose of establishing his guilt of murder, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available.

[45] The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. …

…

Rogers

Garrett

Walton v Gardiner

Double Jeopardy and Prosecution Appeals

17 McHugh J came to the same conclusion on the basis that:

“[117] … the charge against the respondent for perjury was an abuse of process because it had a tendency to undermine the respondent's acquittal of an earlier charge of murder.

[118] It is an abuse of process for the Crown to charge a person with an offence of perjury when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge. A perjury charge that has that effect is an abuse of process even if the evidence supporting the charge is different from the evidence that supported the prosecution case in respect of the charge on which the accused was acquitted. The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal. That is so even though the evidence proving perjury is unanswerable.”

18 The formulation applied by McHugh J, namely “contradicts or tends to undermine an acquittal”, reflects terminology from Garrett v The Queen (1977) 139 CLR 437 at 445, also adopted by Gleeson CJ and Hayne J at [37].

19 McHugh J also said:

“[130] … [I]f the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.

[131] To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes …”

20 McHugh J went on to refer to the House of Lords judgment in Connelly v Director of Public Prosecutions [1964] AC 1254 and also to Garrett, including that part of the judgment of Barwick CJ emphasised in the joint judgment of Gleeson CJ and Hayne J. His Honour then referred to Rogers and returned to the formulation in Garrett, which I have already quoted, and placed in italics that part of the judgment of Barwick CJ at 445 referring to evidence which if accepted would “tend to overturn the verdict”. (See at [138] and also at [146].)

21 The formulation as to whether or not an acquittal is “called in question” or subsequent prosecution has a tendency to “overturn” or “undermine” the verdict of acquittal, indicates the potential breadth of the principle of incontrovertibility. However, I do not understand the judgments in Carroll, other than that of McHugh J, to propound a test that anything which can answer the description of ‘calling in question’ or ‘tending to undermine’ infringes the principle of incontrovertibility.

22 Gleeson CJ and Hayne J went on to say:

R v Z

R v Arp

R v Degna

23 The test which their Honours applied was the formulation from the judgment of Lord Pearce in Connelly v Director of Public Prosecutions at 1364, i.e. whether the prosecution under consideration is “manifestly inconsistent on the facts with a previous acquittal”. This requires, as Gleeson CJ and Hayne J emphasised at [40]-[41], quoted above, a focus upon a comparison of the elements of the new charge with the verdict on the previous charge “in the light of the issues at the first trial”. Such a conclusion will readily be drawn if the relevant inconsistency can be characterised as “direct and plain” [44].

24 Their Honours conclusion was:

“[42] In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder … once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible.”

The Judgment of Howie J

25 In the present case, Howie J referred to the authorities on the issue of whether or not the conviction after plea to manslaughter constituted an acquittal of a charge of murder, particularly Maxwell v The Queen (1996) 184 CLR 501. After expressing some doubts, his Honour proceeded on the basis that:

“[111] … the acceptance of the plea to manslaughter resulted in a decision by the Crown not to lead evidence on the charge of murder and, as a consequence, there was in effect an acquittal of the charge of murder.”

26 His Honour made reference to the findings of Abadee J in his remarks on sentence after the plea to manslaughter and said:

Rogers v The Queen

Carroll

[124] It may well be the case, as the Crown conceded before me, that, had the accused been convicted of manslaughter after trial, the situation would have been different. For one thing there would then clearly have been an acquittal of the charge of murdering his brother recorded as the verdict of the court. It may well be the case that had the only basis for manslaughter left to the jury been provocation, a verdict by the jury finding the accused guilty of manslaughter might have inhibited the Crown from asking a second jury to find facts inconsistent with that verdict. But that is not what happened in this case.

…

[127] However the question arises as to whether the acquittal of the charge of murder of his brother arising from the acceptance of the plea to manslaughter would require that the trial be stayed so as not to breach the principle against double jeopardy. Clearly the killing of the brother occurred as part of the series of events that also resulted in the death of the parents. The facts surrounding the killing are intertwined. The killing of the parents could not sensibly be considered without a consideration of the killing of the brother. By asking the jury to find that the accused killed the parents, is the Crown seeking to call into question the acquittal for the murder of the brother such that it offends double jeopardy? Would the trial judge need to direct the jury that they must give the acquittal of the murder of the brother full weight? Would such a direction mean that the jury could not do so and yet convict the accused of the murder of his parents?

[128] The decisions that have held that the prosecution cannot seek to call into question an acquittal are cases where the later prosecution relates to a further allegation in respect of the same victim. They raise the issue of double jeopardy clearly because the prosecution is attempting to secure a conviction directly contrary to an issue that has been determined by the previous acquittal. However it is of crucial significance in my view that in each case the acquittal was a result of a jury verdict after trial.”

27 His Honour referred to a number of cases on double jeopardy, noting at [132] that in Carroll: “The focus of both prosecutions was the one and same fact: did he kill the victim?”

28 His Honour considered the principle of incontrovertibility and concluded:

“[140] In my opinion the incontrovertibility that has been accorded a verdict of acquittal after trial by jury, or a determination of fact made after a hearing on the merits, or by the terms of a particular statutory provision should not be applied to a situation where the acquittal arose incidentally by the Crown accepting a plea of guilty to a lesser offence. I do not see that any of the policy considerations, even giving the double jeopardy principle its widest scope, require that a verdict of acquittal to murder, arising from the acceptance of a plea to manslaughter, be given the status of incontrovertibility so that it is immune from further consideration by a jury at other proceedings. The real verdict recorded by the Court was a conviction of manslaughter. That was the only finding that the Judge was required to make. If the verdict of acquittal of murder is recorded at all, it can only be in the recording of the acceptance of the plea of guilty to the manslaughter charge.

Sambasivam.

[142] It was in my view at most a technical acquittal that gave rise to a plea of autrefois acquit on the charge of murdering his brother. There can be no question that such a result should follow the acceptance by the Crown of the plea of guilty to manslaughter. But I do not understand why the acquittal of murder should be accorded more substance than that. I doubt that the accused, the Crown or the Judge understood that the accused had been acquitted of the charge of murder by the adoption of that procedure. In those circumstances I do not see why fairness to the accused or the preservation of the Court’s determination should require that the Crown now be precluded from prosecuting the accused with murdering his parents on the basis that the acquittal of murdering his brother prevents a jury from considering the circumstances in which that killing arose. The acceptance of the plea of guilty was on the basis that the Crown could not at that time negative that the accused acted in provocation. The acquittal means no more than that. In my opinion there would be no manifest inconsistency between a conviction of manslaughter of his brother and convictions of murder of his parents that would bring the courts in disrepute or undermine the principle of incontrovertibility of verdicts after trial.”

29 His Honour also said:

“[144] If the accused’s submission be correct and the prosecution cannot proceed because to do so must inevitably challenge the acquittal, the accused could not be prosecuted even in the face of the most damning evidence of his guilt of murdering his parents that came to light since the sentencing proceedings for the manslaughter of his brother. And this only because at that time of taking the plea the Crown could not negative that the accused was acting under provocation. I do not believe that the principle of double jeopardy goes so far as to protect the accused from prosecution for the crime of murdering his parents simply because he pleaded guilty to the manslaughter of his brother and, as an incident of the acceptance of the plea, was acquitted of the murder of his brother.

Carroll

…

Carroll

R v Z

R v Degnan

Carroll

R v VN

[148] The conviction of manslaughter proves that the accused unlawfully killed his brother. That is not an issue that is in dispute at the proposed trial. The proposed prosecution does not put that verdict in jeopardy in any sense. A verdict that the accused murdered his parents is not necessarily inconsistent with an allegation that he unlawfully killed his brother, even if the jury might think that the conviction should have been for murder rather than manslaughter. The Crown is not bound by its acceptance of the plea to manslaughter on the basis of provocation and there is no fact decided by the sentence imposed upon the accused by Abadee J. There is in my opinion no breach of the principle against double jeopardy by the further prosecution of the accused.”

30 As the judgment of Howie J, and the submissions in this Court recognise, the most directly relevant authority for present purposes on the principle of incontrovertibility is the judgment of the High Court in Carroll supra. In that case the Respondent was charged with perjury for giving evidence at his trial for murder that he had not killed the victim. He had been convicted, but the conviction was quashed and a verdict of not guilty entered on appeal.

31 The facts of this case differ in a critical respect. The Applicant was never charged with the murder of his parents. There was, accordingly, no direct inconsistency of the character with which the Court was concerned in Carroll. Nevertheless, there was an element of inconsistency because the acquittal, if it be such, to the charge of murder of the Applicant’s brother was based, and based only, on alleged provocation by reason of the circumstance that his brother had in fact killed their parents.

32 Mr P Boulton SC, who appeared for the Applicant, submitted that by instituting the current prosecution the Crown was “in effect controverting the earlier verdict” of acquittal of the murder of the brother. This, he submitted, offended the principle of incontrovertibility.

33 In the final analysis, Howie J determined the issue adversely to the Applicant by applying the “manifest inconsistency” test derived from Connelly and applied by Gleeson CJ and Hayne J in Carroll. To repeat the last sentence of his Honour’s par [142]:

“In my opinion there would be no manifest inconsistency between a conviction of manslaughter of his brother and convictions of murder of his parents that would bring the courts into disrepute or undermine the principle of incontrovertibility of verdicts after trial.”

34 The Applicant challenges this conclusion.

35 Submissions were made to this Court as to how it was proposed that the Applicant receive the “full benefit of the acquittal” in the first proceedings. (A phrase derived from R v Storey (1978) 140 CLR 364 at 372.) However, that proposition should be regarded, for present purposes, to be “a particular restatement of” the principle of incontrovertibility. (See AJS v The Queen [2007] HCA 27; 81 ALJR 1208 at [24].) With respect to the conclusion of Howie J, that there may be no need to refer to the outcome of the charge for killing the brother, see AJS at [25]-[26]. The relevance and content of a possible direction to the jury in this regard has now been elucidated by the High Court in Washer v Western Australia [2007] HCA 48 esp at [30]-[37].

36 Three key issues arise on the submissions in this Court:

1 Was the Applicant acquitted of murdering his brother?

2 Do the new charges fall within the incontrovertibility principle?

3 Was the Applicant relevantly in legal jeopardy?

The Acquittal Issue

37 Although his Honour proceeded on the basis that the first trial concluded in an acquittal on the murder charge, he expressed some doubts about that proposition and indicated a view that the effect of the acceptance of the plea to manslaughter was in the nature of a nolle prosequi rather than an acquittal. The Crown has, on this appeal, submitted that Maxwell supra is not authority for the proposition that, in the circumstances of this case, there was an acquittal of murder of the brother.

38 The Crown submits that the Applicant has not been acquitted of the charge of murder of the brother. Nevertheless, it accepts that there would be an effective plea in bar should the Crown now seek to proceed on a murder charge with respect to the killing of the brother. The plea in bar would be a plea autrefois convict. In my opinion, for the reasons given below, the principle autrefois acquit, as extended by High Court authority, would also apply. That does not, however, determine the outcome of this appeal.

39 Section 394A of the Crimes Act 1900, which was in force at the time relevant to this case, does not contain an express reference to the fact that a plea to manslaughter leads to an acquittal on the charge of murder. This contrasts with the position in legislation from other jurisdictions, eventually adopted in this State by subsequent amendment as s399 of the Crimes Act, now found in s157 of the Criminal Procedure Act.

40 It is clear that Gaudron and Gummow JJ were of the view in Maxwell that the conviction for a lesser offence under s394A of the Crimes Act 1900 “necessarily involves an acquittal” on the charge of murder (at 527). However, the Crown contended that there was ambiguity in the reasoning of McHugh and Dawson JJ on the issue. Their Honours said at 511-512, with respect to s394A:

“The practical effect of a prosecutor’s acceptance of the plea of guilty to manslaughter was that he led no evidence upon the charge of murder in the indictment.”

41 Although this terminology does not expressly adopt the proposition that there was an “acquittal” on the murder charge, nevertheless, it is, in my opinion, to the same effect. Their Honours hypothesise an actual trial upon indictment which has reached the stage of the Crown tendering evidence and no evidence consistent with murder being proffered. That situation must lead to an acquittal. It is not, in law, identical to a nolle prosequi which occurs prior to an accused being put on trial upon an indictment.

42 In any event, this Court has decided this issue in R v Maxwell (1994) 34 NSWLR 606 where Gleeson CJ, with whom Hunt CJ at CL and Badgery-Parker J agreed, said at 614:

R v Naraindeen

R v Naraindeen.”

43 It is true, as the Crown submitted, that s606(4) of the Canadian Criminal Code under consideration in R v Naraindeen (1990) 75 CR (2d) 120, provided expressly that the acceptance of the plea of guilty resulted in a finding that the accused was not guilty of the offence charged. As indicated there were no such express words in s394A of the New South Wales Crimes Act. Nevertheless, this was not a matter which their Honours overlooked, as the reference to “for practical purposes” attests. Indeed this reference may well have informed the reference to “practical effect” in the joint judgment of Dawson and McHugh JJ on appeal.

44 As the recent judgments on double jeopardy in the High Court, including Carroll, confirm, the focus on the underlying values involved in the applicable principles requires the court to be concerned with matters of substance rather than of form.

45 This Court should follow its own earlier judgment unless satisfied that it is wrong. I can see no reason to doubt the judgment of this Court in Maxwell.

46 In my opinion, the submission of the Crown that the acceptance of a plea to manslaughter does not involve an acquittal of the charge of murder should be rejected. Even if there was no formal acquittal, the Applicant was entitled to such an order. (C/f AJS supra at [19].)

The Incontrovertibility Issue

47 The statutory provision allowing for the defence of provocation to a charge of murder is found in s23 of the Crimes Act which provides:

“23(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.”

48 If the 1995 proceedings on the charge of murder of the brother had gone to trial and the jury had returned a verdict of manslaughter then the finding of fact by the jury as to the nature and content of the provocation would have led more clearly to the conclusion that there was a manifest inconsistency with a new charge of murder of the parents. However, as emphasised by Howie J, there was no such finding of fact by a jury. The Crown accepted a plea of manslaughter in full discharge of the indictment. It did so, as Howie J found, on the basis that the Crown was not able to discharge its onus of disproving the provocation upon which the Applicant relied.

49 It may have been accurate to describe the process as having a “tendency to undermine” the verdict of acquittal or, more clearly, to “call it in question”, to adopt the terminology of Barwick CJ in Garrett. However, the generality of this language is not, as I understand the authority of Carroll, directly applicable. If it were then the passage at [50] of the joint judgment of Gleeson CJ and Hayne J with respect to an “incidental effect” would have little work to do. (See par [22] above.)

50 It may very well be that there was an issue estoppel, in the civil law sense, with respect to the question of who killed the parents, arising by reason of the acceptance of the plea on the basis of the provocation said to be constituted by a brother having done so. However, as determined in Rogers, the principle of incontrovertibility is not the civil law concept of issue estoppel. The applicable principles serve different values.

51 Elements of fact and degree arise when determining whether or not the doubt cast upon the acquittal for murder of the brother by reason of proceedings on charges of murder of the parents, is merely an “incidental effect” (within the meaning of the words used by Gleeson CJ and Hayne J in Carroll at [50]), or a possible inconsistency on the one hand, or whether they constitute a “manifest inconsistency” (see Carroll at [38], [40] and [42]), on the other hand. It is necessary to compare the “elements of the new charge” of murder of the parents, and the “verdict of not guilty” of the murder of the brother (see at [40]).

52 On one view, the verdict of not guilty of murder does not, as a verdict, demonstrate that the Applicant acted under the provocation of his brother’s murder of their parents. Indeed, that verdict does not indicate any kind of felonious killing. It is only the conviction for manslaughter that does so. Nevertheless, a manifest inconsistency may be said to arise when the basis of the acquittal is known, as it is here.

53 There will be issues determined in the course of a criminal trial leading to an acquittal which, in the absence of a doctrine of issue estoppel, will have no effect on a subsequent trial. However, the matter before the Court involves an issue of central significance to the determination of the earlier trial.

54 The fact that the killing of the parents occurred in the same sequence of events as the killing of the brother is not the critical factor. (See Pearce supra at [25]-[26] and Filipowski supra at [43].) The critical factor is the basis upon which the acquittal of the murder of the brother occurred.

55 The series of cases in the High Court, from Rogers and Pearce through Carroll to Filipowski, apply the principle of incontrovertibility on the basis of the values underlying the principle. Such a focus requires this Court not to be concerned with technical distinctions. The pith and substance of the disposal of the original proceedings was that the Applicant was acquitted of murder on the basis that he acted under the provocation of his brother having killed their parents. This is not simply an inconsistency. Although a different judgment is clearly open, this is, in my opinion, a manifest inconsistency in accordance with the test applied in Carroll.

56 The same focus on values also requires this Court to have regard to the other two principles of finality and double jeopardy, reflected in the maxims referred to in the authorities set out above. If, notwithstanding an order of acquittal, the Applicant was not in jeopardy of a conviction for murder at the first trial then, in my opinion, even the existence of a manifest inconsistency would not be sufficient to constitute the kind of abuse of process that would warrant a permanent stay of proceedings. In the present case, unless the principle of double jeopardy was also engaged, the principle of incontrovertibility would not justify the orders sought by the Applicant. The alleged provocation which led to the acquittal for murder would give rise to no more than an issue estoppel of the kind which is only effective in civil proceedings.

The Jeopardy Issue

57 The Crown submitted on the appeal that the principle of double jeopardy does not apply unless the accused has in fact been in jeopardy on the first occasion. It submitted that, on the facts of this case, the Applicant was not in legal jeopardy of a conviction for murder at the first trial.

58 The question that falls to be determined is whether a person was in legal jeopardy when, without trial, the Crown accepted a plea of guilty to a lesser charge and the accused was acquitted of the more serious charge. There can be little doubt that the quality of such an acquittal does differ from an acquittal after trial. Is this difference determinative?

59 Howie J distinguished the case law on incontrovertibility on the basis that, in each case, the two sets of proceedings involved the same victim. However, that is not an accurate description of the facts in Carroll. The second trial was a perjury trial with respect to the denial in the first trial that Carroll had killed the deceased. The “victim” in the second perjury trial was, in substance, the public because of its interest in the administration of justice.

60 It is not permissible to take a narrow, technical view of the issues that arise with respect to the principles now under consideration. It is not appropriate to state that, as the Applicant has never stood charged with the murder of his parents he can be said never to have stood in jeopardy in that respect.

61 In my opinion, identity of the victim is not a requirement of the operation of either the incontrovertibility principle or the double jeopardy principle. A manifest inconsistency can arise between the elements of one offence and the verdict in another. For the reasons I have given above, such inconsistency arises here.

62 The second way in which Howie J distinguished the earlier cases was on the basis that, in each case, there had been an acquittal after trial. (See at [128] and [140]-[141] set out at [26] and [28] above.)

63 Howie J referred to the frequently cited passage from Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 at 479:

after a lawful trial

64 The emphasised words a “lawful trial” were relied upon by Howie J to conclude that where, as here, the acquittal arose by reason of the acceptance of a plea to a lesser charge, the principles of incompatibility and double jeopardy were not infringed. It must, however, be borne in mind that Gleeson CJ and Hayne J noted at [37] in Carroll that the principle established by recent Australian authorities is of greater width than that stated by the Privy Council in Sambasivam.

65 In response to the reasoning of Howie J, that the acceptance of a plea did not involve a litigated controversy, the Applicant invoked findings to the effect that the Applicant murdered his brother because the brother had murdered their parents, made by Justice Abadee in the course of his remarks on sentence. In my opinion, these findings are of no significance for present purposes.

66 The process of adducing evidence and making findings for purposes of sentencing is quite distinct from what is required for purposes of determining criminal liability. Pursuant to s4(2) of the Evidence Act 1995, that Act applies to a sentencing hearing only if the Court directs that the law of evidence applies. There was no such direction in the proceedings before Abadee J when he sentenced the Applicant.

67 The focus in recent Australian case law upon the values underlying the principles of double jeopardy and of incontrovertibility requires the Court to have regard to the nature of the fact finding exercise said to give rise to an inconsistency or double jeopardy or finality. Nothing that transpired before Abadee J, in the course of a hearing where all parties accepted the proposition that the Applicant was provoked by the fact that his brother had murdered their parents, is capable of giving rise to an infringement of the principles. By the time of the sentencing hearing, any issue relating to the charge of murder had been removed from factual contention between the parties.

68 Mr Boulten, for the Applicant, submitted that the words “after a lawful trial” in Sambasivam, identify situations in which there had never been any jeopardy faced by the accused, for example, where there had been some technical challenge to the indictment. The scope of the proposition that an accused must have been placed in jeopardy on the first occasion, is the critical issue to be determined.

69 An accused is not relevantly in legal jeopardy if a charge is dismissed when:

· The information failed to allege essential elements of the offence (Broome v Chenoweth (1946) 73 CLR 583).

· The charge was bad for duplicity (R v VN [2006] 15 VR 113 at [75]-[76]).

· There was a defect on the face of the information (Hackwill v Kay [1960] VR 632).

· An essential precondition to the institution of proceedings was not satisfied (Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201).

70 The issue before this Court is whether an accused can be said not to have been in jeopardy in circumstances of a different character, namely, where the Crown accepted in advance of trial that, on the evidence available to it, no conviction could occur.

71 The most recent authority in Australia on the need for a person invoking the double jeopardy principle to have actually been placed in jeopardy is Filipowski supra in which the Court applied a line of Australian authority which, relevantly, finds its origin in the judgments of Dixon and Starke JJ in Broome v Chenoweth supra.

72 The test, as formulated by Dixon J in Broome v Chenoweth at 599.9, was whether upon the first charge “there could have been a valid conviction”. This formulation was referred to with approval in the judgments in Filipowski supra at [12], [20], [75], [94].

73 Filipowski was concerned with the Marine Pollution Act 1987, which created two distinct offences relating to the discharge of oil into State waters. The provisions are set out in Filipowski at [7]-[10]. The Appellant was charged with an offence under Pt 4 of the Act, but there was express provision that that Part would not apply to a discharge to which Pt 2 applied. At trial the prosecution had adduced its evidence at the end of which the Appellant in the High Court submitted successfully that, on the evidence, Pt 2 clearly applied and there was no case to answer on the Pt 4 charge. Accordingly, the summonses were dismissed. Subsequently the Appellant was charged with an offence under Pt 2. It was with respect to the second proceedings that the High Court determined that the Appellant had never stood in jeopardy at the first trial.

74 It is of significance that in the first trial in Filipowski the prosecution case was in fact complete. The fact that what was there involved was summary proceedings, as distinct from a trial on indictment, does not determine the outcome of the application of the principle. (See Filipowski at [15] and [44]-[48].)

75 The joint judgment of Gleeson CJ, Heydon and Crennan JJ, quoted with approval the following passage from Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at [59] p32:

or because as a matter of law the evidence available to the prosecution cannot support a conviction

76 In a footnote their Honours referred to Williams v Director of Public Prosecutions [1991] 1 WLR 1160 at 1170 as supporting the passage quoted. Kirby J also referred to Williams at footnote 103 as authority for the proposition that the Appellant in Filipowski had never been in jeopardy.

77 In Williams at p1170, Rougier J said:

“For the purposes of the present appeal, we have to consider two possible situations in which a defendant may or may not be in jeopardy. The first is what I have called the ‘temporal’ question, namely whether the proceedings had reached such a stage that he was in peril of conviction. The second is ‘qualitative’, whether the imperfection (I deliberately choose a neutral word) of the proceedings which led to the original decision in the defendant’s favour was of such a kind that he would never have been in danger of conviction. This second situation is independent of the first, and it is, therefore, necessary to deal with each in turn.

Reg v Tonner

Reg v Hammersmith Juvenile Court, Ex Parte O

It seems to me that in proceedings before justices, this is the logical moment whereat a defendant begins to be in peril of a conviction. Although it could be said that when a preliminary point is taken before plea, battle has been joined, as it were, yet all that is due to happen at that stage is that the point is decided either for or against the defendant; he is not in peril of conviction of the charge he is called upon to answer as a result of that decision. I am of the opinion that the decisions in various defendants’ favour in most of the cases cited to us, and to which I have already referred, are explicable on the basis that the defendant has entered a plea of not guilty.”

78 I interpose to note that, in New South Wales, trial by jury has been held for some purposes to commence upon arraignment, before the empanelment of a jury. (See R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Janceski (2005) 64 NSWLR 10 at [219]; R v Gee (2003) 212 CLR 230 at [17]; R v McNeill (Ruling No 3) [2007] NFSC 4 at [13]-[16] per Weinberg J. However, the issue of when a trial begins may have a different answer for different purposes, particularly where a statute has to be interpreted. (See Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at [17]; Gee supra at [43]; Donaldson v Western Australia (2005) 31 WAR 122 esp at [41]-[72].)

79 The point of arraignment does not appear to me to be a substantive commencement for purposes of the principles of incontrovertibility, finality and double jeopardy. In my opinion, as the plea was accepted in full discharge before the empanelment of the jury, the Applicant was not relevantly in jeopardy. I agree with Howie J that in substance, the position was the same as if a nolle prosequi had been entered even though there was an acquittal. This conclusion is reinforced to the extent that the principle of incontrovertibility is based on the respect which the courts show to the institution of trial by jury. (See e.g. Washer v Western Australia supra at [45].)

80 The same result ensues from the second situation considered in Williams and to which the observations in Spencer Bower, Turner and Handley were particularly directed. Rougier J went on to say:

Director of Public Prosecutors v Porthouse

Jelson (Estates) Ltd v Harvey

81 The judgment in Jelson (Estates) Limited v Harvey [1983] 1 WLR 1401, upon which his Honour relied, had determined to accept as authoritative the dissenting judgment of Lush J in Haynes v Davis [1915] 1 KB 332, where, with respect to proposition that an acquittal had to be “on the merits”, being the proposition reflected in the passage from Spencer Bower, Turner and Handley quoted above, Lush J had said at p338-339:

“I quite agree that ‘acquittal on the merits’ does not necessarily mean that the jury or the magistrate must find as a matter of fact that the person charged was innocent; as it is just as much an acquittal upon the merits if the judge or the magistrate were to rule upon the construction of an Act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty, and to that extent the expression ‘acquittal on the merits’ must be qualified, but in my view the expression is used by way of antithesis to a dismissal of a charge upon some technical ground which had been a bar to the adjudicating upon it. That is why this expression is important, however one may qualify it, and I think the antithesis is between an adjudication of not guilty upon some matter of fact or law and a discharge of the person charged on the ground that there are reasons why the court cannot proceed to find if he is guilty.”

213 In DPP v Humphrys [1977] AC 1 Lord Salmon said that the opinions of Lord Devlin and Lord Pearce “constituted powerful authority” for the exercise of the inherent power to prevent the abuse of process in the context of criminal proceedings (at 45-46).

214 To similar effect Lord Edmund-Davies said:

Reg v Riebold

Connelly v Director of Public Prosecutions

215 Although the development of appropriate principles in England has not been without controversy (see Lord Morris in Connelly at 1300-1304 and Viscount Dilhorne in Humphrys at 26) the position is now settled in Australia: see Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Rogers at (255-256, 286-287); Pearce at [115]-[117] per Kirby J.

216 Abuse of process is not confined to the use of court processes for ulterior purposes but extends to proceedings which are vexatious or oppressive (Rogers at 255 per Mason CJ; Williams v Spautz at 520). The circumstances in which abuse of process may arise are varied and are not confined to those recorded in the decided cases (Rogers at 255-257 per Mason CJ).

217 There are a number of considerations. In Walton Mason CJ, Deane and Dawson JJ said that to determine whether criminal proceedings should be stayed as an abuse of process for litigating a case which had already been disposed of by earlier proceedings involved balancing:

“[t]he requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.” (at 396)

218 See also Rogers (at 256 per Mason CJ and at 286 per McHugh J).

219 There are factors which favour the Court intervening to restrain an abuse of process. The submission that the applicant murdered his parents contrasts directly with the basis upon which the earlier verdicts were founded. A conviction for the murder of his parents would raise an inconsistency between the verdicts. Although that inconsistency will not be apparent on the face of the verdicts it is nevertheless a situation which the incontrovertibility principle seeks to avoid. It does not seem to me to matter that the earlier verdicts were more favourable to the applicant than they might have been. This is almost inevitably the case: see Carroll.

220 The second factor which weighs in favour of this Court’s intervention is the recognition by the principles developed under the expression “double jeopardy” of the need to provide to the accused the full benefit of an earlier acquittal. It can be argued that that objective cannot be met if the jury in the contemplated trial is to be asked to make a finding which cannot be reconciled with the earlier verdicts.

221 It will be inevitable that at the applicant’s trial the jury will learn of the death of the brother as well as the parents. The applicant’s defence must be that he was not present when they were killed but came later to the scene and after his brother had killed them. Counsel will no doubt raise the fact that he has been acquitted of his brother’s murder but convicted of his manslaughter. The reason for those verdicts will inevitably be disclosed, the jury being told that the Crown could not negative provocation. If the applicant was to have the full benefit of the acquittal for his brother’s murder he could not be convicted of killing his parents.

222 Notwithstanding the obvious force of these submissions I have come to the conclusion that this is a case where this is not an abuse of process requiring the Court’s intervention. One important consideration is that the earlier verdicts were entered without a hearing on the merits of the Crown case. When the incontrovertibility principle is raised in circumstances where the apparent inconsistency is with an assertion made by the accused in earlier proceedings which has not been tested, the justification for protecting the earlier decision from contradiction is significantly diminished. It would of course be different in civil proceedings where issue estoppel could be pleaded. There will be no difficulty in accepting that a prosecution for the murder of the brother would either be barred as of right, a plea of autrefois acquit being available, or the Crown, having accepted the plea, the proceedings should be stayed as an abuse of process. A person should not be placed in jeopardy for an offence of which he has been acquitted or a like offence arising from the same facts as those in evidence at the earlier trial (Filipowski at [49]). However, when the prosecution is for an entirely separate offence it cannot be reasonably suggested that the accused is being harassed by the prosecutor.

223 It would be unwise to attempt to identify the range of circumstances where, notwithstanding that the principles of incontrovertibility are engaged, further proceedings will be an abuse of process requiring the intervention of the Court. However, when in the present case the charge is murder, the most serious known to the criminal law, the public interest in the prosecution of the alleged offender must prevail over concerns as to the potential for inconsistencies between the verdict and the previous verdicts entered without a determination by the court of the charges on their merits (Connelly at 1364). Public confidence in the administration of justice requires the prosecution to proceed.

224 HULME J: On 5 April 1995, the Applicant was arraigned before Abadee J on a charge:-

“For that he on 28 August 1993 at Woronora did murder Christopher Gilham”

225 He pleaded not guilty to that charge but guilty of manslaughter. The Crown prosecutor then stated that “the plea of manslaughter on the basis of provocation is accepted by the Crown in full discharge of the indictment”.

226 After the tendering and admission into evidence without objection of some documents, the transcript records:-

His Honour: Mr Crown, just assist me, please, what is the matter of provocation that has been relied upon?

Crown Prosecutor: The prisoner having been confronted with the sight of both his parents deceased and having been informed by his brother, now deceased, that he, the brother, was responsible for the death of the two parents and, indeed, immediately thereafter setting fire to the body of the deceased parents.

Crown Prosecutor: That is the case for the Crown. …

227 One of the documents admitted into evidence was an ERISP between investigating police and the Applicant. Another was a Statement of Facts by Detective Sergeant Ahern. In the statement he recorded that on 28 August 1993 police and fire brigade officers attended premises in Woronora and upon arrival discovered parts of those premises well alight. After the fire was extinguished, charred bodies of the Applicant’s father, mother and brother Christopher were discovered in the premises and post mortem examinations revealed each had been stabbed many times.

228 The Applicant was arrested after it became apparent from his own admissions that he was responsible for the death of his brother. The Applicant then provided police with an account of events including seeing evidence and being informed by his brother that the latter had killed and set fire to his parents, the Applicant then reacting to this information by fatally stabbing his brother and then reporting events to a neighbour who notified 000.

229 The statement proceeds:-

“The accused has given an account of events to Police which in their simplest form are a feasible account of what may have happened. The investigation to date has been unable to refute that scenario, despite a thorough scientific analysis and evaluation of the scene and available evidence.”

230 Although he did not give evidence himself, evidence was then given on behalf of the Applicant. On 7 April 1995 Abadee J sentenced the Applicant by deferring sentence upon the latter entering into a recognisance to be of good behaviour and to appear to receive sentence if called upon to do so in respect of any breach of the recognisance. His Honour’s remarks on sentence include the following:-

“(after quoting the observation by the Crown set out above and commencing “the Prisoner having been confronted”) I accept this statement as reflecting in summary form the evidence given before me. It is consistent with such. The matters summarised therein suggest an offence of manslaughter in circumstances of grave and, indeed, even extreme provocation…

By his plea the Prisoner admitted that he has killed a man, in this case his brother. By his plea he has admitted to the offence of manslaughter…

… The (Applicant’s brother’s) explanation for the killing of his parents, and I accept that their deaths were at his hands, has died with him.”

231 The indictment that was before Abadee J charging the Applicant with the murder of Christopher Gilham bears a notation that the Applicant’s plea was “Not Guilty of Murder but Guilty of Manslaughter” and the terms of the sentence imposed. The place provided on the back of the indictment for a statement of the verdict is blank and there is no other record thereon of any conviction or acquittal.

232 Between 7 April 1995 and 21 February 2006 a number of events occurred, a possible outcome of many of which was the earlier preferring of the charges now brought. Other members of the Court have detailed these and I need not repeat what they have said.

233 On 21 February 2006 the Director of Public Prosecutions preferred an ex officio indictment against the Applicant charging that on 28 August 1993 at Woronora the Applicant murdered Steven and Helen Gilham, his and Christopher Gilham’s father and mother. On 9 October 2006, the matter came before Howie J when the Applicant was arraigned on both charges. He did not enter a plea but sought by Notice of Motion to stay the proceedings as an abuse of process.

234 On 21 March 2007 Howie J refused the application for a stay. On 4 April 2007 the Applicant sought leave to appeal against Howie J’s decision. As amended, the Grounds of Appeal are that his Honour erred:-

(1) in finding that the present proceedings did not controvert the previous acquittal of the Applicant on the charge of murder,

(i) in particular, by holding that Abadee J did not find that the Applicant did not murder his brother; and

(ii) further, by holding that the relief sought could not be granted in the absence of a positive finding that the Applicant was not guilty of murdering his brother, because he acted under provocation.

(2) alternatively, in finding that the present proceedings did not controvert the previous conviction of the Applicant for manslaughter,

(i) in particular, by holding that Abadee J made no finding of fact when he sentenced the accused for manslaughter.

(ii) further, by holding that Abadee J made no finding that the Applicant acted under provocation, because the basis of the plea accepted by the Crown acknowledged simply that it could not disprove that the Applicant acted under provocation; and

(iii) further, by holding that the relief sought could not be granted, because the Crown was not seeking to interfere with the Applicant’s conviction for manslaughter.

(3) in finding that appropriate warnings or directions, rulings on admissibility, or other orders would cure any prejudice suffered by the accused, as a result of delay and/or the loss of evidence; and

(4) in failing to find that further prosecution of the accused is detrimental to the public interest in light of the delay in the prosecution and the reasonable expectation of the Applicant that he would not be prosecuted for these two offences.

235 The Chief Justice has concluded that leave to appeal in respect of grounds 3 and 4 should not be granted. I agree with his Honour in this regard and also with his Honour’s reasons for those conclusions.

236 In summary form the argument of the Applicant in respect of grounds 1 and 2 was as follows:-

(i) He had been in jeopardy of being convicted of murder and had been acquitted.

(ii) He had been convicted of manslaughter.

(iii) A foundation of both verdicts – either in the form of ground common to the prosecution and himself at that time or findings of Abadee J or both – was that his brother had murdered their parents and the Applicant had been provoked thereby.

(iv) Any conviction of the Applicant on the present charges of murdering his parents would be inconsistent with one or more of the previous murder acquittal and manslaughter conviction.

(v) There is a principle of law which precludes the Crown from pursuing further criminal proceedings against a person when the result of doing so would be inconsistent with previous decisions in proceedings between the Crown and that person.

Jeopardy

237 The Chief Justice is of the view that the Applicant was not in jeopardy in respect of the previous murder charge. McClellan CJ at CL has reached the conclusion that the Applicant was in jeopardy. On this issue I agree with McClellan CJ at CL. I agree also with his Honour’s reasons for concluding that, the Applicant having been arraigned before Abadee J on the charge of murdering his brother and pleaded, the proceedings on that charge had reached the stage appropriate to that conclusion.

238 There remains the contention that, because the evidence available to the prosecution on that charge was insufficient to sustain a conviction, the Applicant was not in jeopardy.

239 Although the Applicant’s plea of guilty to manslaughter and the Crown’s decision to accept that plea in full satisfaction of the indictment meant that the full ambit of the evidence then available to the Crown was not disclosed, when regard is had to the statements and evidence made to or put before Abadee J and to which I have referred above, that the evidence available to the prosecution was insufficient to sustain a conviction is to my mind clear. In this respect I am unable to accept the distinction drawn by McClellan CJ at CL between evidence which “would not enable a jury to be satisfied beyond reasonable doubt that the applicant was not provoked” and evidence that “could not as a matter of law support a conviction”.

240 The arguments and authority for and against the contention are considered at length in the reasons of the Chief Justice and McClellan CJ at CL and my consideration of the topic can accordingly be relatively brief. The strongest authority in favour of the contention are the remarks of Gleeson CJ, Heydon and Crennan JJ in Island Maritime Limited v Filipowski (2006) 226 CLR 328 at [20 – 24]. Their Honours expressed the view that there were 3 reasons for concluding that the Appellants in that case had not been in jeopardy on their first trial. The first reason was that the first set of summonses were on their face defective. The second was that it was plain on the face of the first set of summonses that no conviction could result from them. The third was expressed in the following terms:-

“Thirdly, although the trial before Talbot J began as proceedings in which the prosecution was seeking to place the defendants in jeopardy by obtaining factual findings adverse to them, by the time the prosecution evidence had been tendered and the no case submission had been argued, it was plain that the only possible view of the evidence was that, as a matter of law, it negated any possibility of a conviction under s 27(1) because Pt 2 applied and Pt 4 did not. The question is whether the appellants “could have taken a fatal exception” to the summonses, not whether they did, or when they did; they were served before the trial with the affidavits on which the prosecution relied at the trial; and even if, contrary to the fact, the form of the summonses did not reveal that the point which eventually succeeded after the prosecution case ended could have been taken before it began, the evidence contained ample material on which it could have been taken.”

241 In arriving at the conclusions they did the 3 members of the High Court quoted remarks of Dixon and Starke JJ in Broome v Chenoweth (1946) 73 CLR 583 and said that the principles apparent in the passages cited had been summarised in the following passage from Spencer Bower, Turner and Handley, “The Doctrine of Res Judicata” 3rd ed. (1996) p 32, para 59:-

“(I)t is essential that the defendant has been in jeopardy on the charge. If summary dismissal occurs because the charge is defective, or because as a matter of law the evidence available to the prosecution cannot support a conviction, the defendant will never have been in jeopardy… Where the dismissal was not founded upon a consideration of the merits, even in the largest and most liberal sense of that expression, there is no adjudication of the innocence of the accused.”

242 Thus if the law is as stated in the third of the reasons of Gleeson CJ, Heydon and Crennan JJ, the Applicant was never in jeopardy. However, with respect to their Honours I do not believe that the law is as so stated. It would certainly be a surprising result if, every time it was held at the end of a Crown case that there should be a verdict by direction because the evidence could not support a conviction, the particular accused was never in jeopardy. The concept of “in jeopardy” would have an entirely new meaning.

243 McClellan CJ at CL has demonstrated that the quotation from Spencer Bower, Turner and Handley, “The Doctrine of Res Judicata” does not accurately reflect the decisions on which it was based and which were concerned with defect in the charges or informations. Considered in context and totality the remarks of Dixon and Starke JJ in Broome v Chenoweth (1946) 73 CLR 583 referred to by Gleeson CJ, Heydon and Crennan JJ were confined to defects in the indictment or information and also provided no support for the third of the reasons advanced by their Honours.

244 The third of the reasons was also not one embraced by Gummow and Hayne JJ who, at [35-37] relied, as did Gleeson CJ, Heydon and Crennan JJ in their first 2 reasons, on the terms of the summonses. This was the approach of Kirby J also at [73-75] and, it seems to me, of Callinan J at [94]. I acknowledge that in that paragraph his Honour did refer to “other members of the Court” but that reference was limited to identification of authorities to which his Honour drew attention and his Honour’s conclusion is expressed in the sentence:-

“As the judgment of Gummow and Hayne JJ holds, the appellants’ plea of autrefois acquit was rightly rejected in that case because the appellants were not, in the strict legal sense, ‘in jeopardy’.”

245 In the circumstances, it is unnecessary for me to pursue the issue of whether, the “summary dismissal” referred to in the third proposition stated in R v Dabhade [1993] QB 329 quoted by the Chief Justice and McClellan CJ at CL is of any significance.

246 In short, I am satisfied that relevantly, the Applicant was in jeopardy in respect of the charge of murdering his brother.

Acquittal

247 I agree with the Chief Justice and McClellan CJ at CL that the Applicant was acquitted of the murder of his brother and with their Honours’ reasons for that conclusion.

Foundation of the Verdicts

248 It is clear that a foundation of both the Applicant’s acquittal of murder and conviction on manslaughter was his claim that his brother had murdered their parents and that he, the Applicant, had been provoked thereby and the Crown’s acceptance of the proposition that it could not disprove those claims. Whether Abadee J made “findings” to this effect or not does not seem to me to add anything of significance.

249 In this connection, I would add that it does not seem to me to matter that the Applicant’s acquittal on the murder charge and conviction of manslaughter occurred in the way they did rather than as the result of a jury verdict after a fully contested trial. To treat the 2 situations as having different consequences so far as the current issues are concerned is to prefer form over substance.

Inconsistency

250 The judgments of the Chief Justice and McClellan CJ at CL also demonstrate that any conviction of the Applicant on the present charges would be inconsistent with the foundation referred to.

Incontrovertibility

251 In Garrett v R (1977) 139 CLR 437 the accused was charged with rape. He admitted sexual intercourse but alleged consent. Over objection evidence was admitted that he had been tried previously on a charge of having raped the complainant on a earlier occasion and acquitted. In his directions to the jury, the trial judge had said the earlier acquittal was a neutral fact. At p445, Barwick CJ with the concurrence of Stephen and Mason JJ said that the statement that the acquittal was neutral was to deny the accused the full benefit of it. His Honour continued:-

“The relevant principle is that the acquittal may not be questioned or called in question by any evidence, which, if accepted, would overturn or tend to overturn the verdict.”

252 In R v Storey (1978) 140 CLR 364 it was held that, in a trial for rape, evidence tending to suggest that the complainant had been forcibly abducted with a view to being carnally known was admissible notwithstanding that the offenders had been previously acquitted of such forcible abduction though it was necessary that the jury be directed that they had to give full weight to the accused’s earlier acquittal and the evidence had to be understood in that light. Of course it was consistent with the acquittal that the earlier jury had not been satisfied of either of the fact of forcible abduction or the relevant intent.

253 Barwick CJ at 370-1 pointed out that a verdict of acquittal, in contradistinction to a conviction, required no positive findings of fact, observing (at p372):-

“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. … 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 anywise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.

…

Sambasivam v Public Prosecutor Federation of Malaya

254 At p396-7 Mason J expressed the view that the principle of res judicata would preclude the Crown from challenging the effect of a previous acquittal. The principle did not necessarily entail the exclusion of evidence which might tend to suggest that an accused was guilty of an offence of which he had previously been acquitted and in an appropriate case the requirements of the doctrine might be satisfied by an “instruction” to the jury that the prior acquittal cannot be challenged and that the evidence, for what it may be worth, is to be understood in this light.

255 At p424-5 Aickin J with the concurrence of Stephen J agreed that evidence of the nature under discussion was admissible so long as it was made clear that the prior acquittal could not be challenged and the evidence must not be taken as showing or proving guilt on the prior charge. His Honour continued:

“In the present case the evidence of the events at the railway station is therefore admissible, but it must be explained to the jury that the evidence taken together cannot be treated as proving abduction, but that the jury may accept or reject the evidence as to individual facts according to their view of the witnesses who gave such evidence.”

256 At p408-9 Jacobs J expressed the view that it was not open to a jury in a later trial to conclude that all the elements of an offence for which a defendant was tried and acquitted in an earlier trial were proven. His Honour then posed the question, “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.” Observing that he did not think any short definitive answer could be given to the question, his Honour provided none.

257 In Rogers v R (1994) 181 CLR 251 the majority of the court held that tender of records of interview which had been held in an earlier trial inadmissible as not made voluntarily constituted a direct challenge to the earlier determination and invited “the scandal of conflicting decisions” and amounted to an abuse of process. Deane and Gaudron JJ with, it would seem the concurrence of Mason CJ (at p255) referred (at p273) to “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct” and (at p278) to “the unassailable nature of an acquittal.”

258 The Respondent in R v Carroll (2002) 213 CLR 635 had been acquitted on a charge of murder. He had given evidence that he did not kill the deceased. In the proceedings which led to the appeal he had been convicted on perjury in respect of that evidence. The High Court held the conviction could not stand.

259 Gleeson CJ and Hayne J pointed out that the factual enquiries made at the two trials in the end came to focus upon the same issue namely whether the Respondent killed the victim. Recognising that the principle could be stated in various ways, their Honours (at p648) quoted from the remarks of Deane and Gaudron JJ in Rogers as to “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”, and from those of Barwick CJ in Garrett v R 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”. The emphasis was added by Gleeson CJ and Hayne J.

260 Their Honours also quoted from Connolly v DPP [1964] AC 1254 at 1364 where Lord Pearce had said:-

on the facts

261 In dealing with the particular circumstances in the case before them, their Honours said:-

“In the present case there was manifest inconsistency in 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… Once such manifest inconsistency appeared then a case for a stay of proceedings was irresistible.”

262 Later their Honours added:-

“[45] The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so.

[47] … The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.

[48] To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.

…

[50] Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental affect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z (2000) 2 AC 483, R v Arp (1998) 3 SCR 339 and R v Degnan (2002) 1 NZLR 280 are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”

263 Gaudron and Gummow JJ observed:-

“[93] We agree with the remarks of the Chief Justice and Hayne J in the present case respecting the decisions in Rogers and Garrett. Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition.

[98] …The offence in respect of which there was an acquittal may comprise various elements presenting the ultimate issue for the jury’s determination. More or less evidence (and inference invited from primary evidence) may have been tendered on one or more of those elements or the ultimate issue. Only some of those issues may remain alive and in contest when cases are closed. It is in respect of those live elements and the ultimate issue that what is said above applies. In the present case the only element that was alive in the murder trial was whether the Respondent had killed the deceased.

…

[103] This indictment is to be contrasted with a charge of perjury that relates not to an ultimate issue in contest in a previous trial, but to evidence given at such a trial by the defendant which, if subsequently proved to be false, would not directly impeach the prior acquittal. An indictment which charged, for instance, that the present respondent had committed perjury by testifying that he had been at the Royal Australia Air Force recruits’ course at the time of the murder would answer that description. It might support an inference that he was wrongly acquitted, but would not necessarily negative the acquittal.”

264 McHugh J stated the matter more widely. His Honour observed:-

“[118] It is an abuse of process for the Crown to charge a person with an offence of perjury when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge… The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge but raises the same ultimate issue or issues as was or were involved in the acquittal.

[127] … The issue is whether it was open to the Crown to charge Carroll with perjury when the resultant verdict on the perjury charge necessarily contradicted – or at all events had a tendency to undermine – the acquittal of the accused on the charge of murder. I do not think that there is any doubt that this was a course that the common law does not tolerate. …”

265 After quoting from the earlier decisions to which I have referred his Honour described as “fundamental” the rule that an acquittal of a criminal charge may not be questioned or called in question by any evidence by which, if accepted, would overturn or tend to overturn the verdict, words his Honour took from Garrett v R.

266 It is obvious that a number of the statements quoted are far wider than others. Indeed, it is impossible in my view to reconcile all of them. On the one hand there are those that prohibit evidence that “call[s] in question” or “tend[s] to overturn” a verdict, second trials where the verdict would be inconsistent “on the facts”, and charges that place a citizen “at the risk of being thought guilty of an offence of which he has been acquitted” or proof of which “tends to undermine” a prior acquittal. On the other, there are those that prohibit challenge to a prior “verdict”, look to the “purpose” to which evidence having a tendency to impugn a prior verdict is directed, or permit evidence which has an “incidental effect” of “demonstrating the error of an earlier decision”. Others again invite attention to the “elements of an offence”. And in the context of this case, what is meant by giving the Applicant “full weight” to his earlier acquittal?

267 Of course, one cannot imagine any occasion for the Crown in the Applicant’s trial of the current charges to seek to challenge the verdicts previously given, or indeed to refer to them. However, it is by no means beyond the realm of possibility that counsel for the Applicant will seek to adduce the evidence and if “full weight” is given to those verdicts, it is hard to see that they do not carry the implication that it was the Applicant’s brother who killed their parents. One could seek to draw a distinction between the elements of the offences previously dealt with and the evidentiary basis for those elements, the distinction being that there could be no dispute that the Applicant was provoked at the time he killed his brother but otherwise no restraint on what the Crown could seek to prove. Again the distinction seems artificial and unattractive.

268 That there is some principle along the lines of that relied on by the Applicant was not in controversy in the proceedings before this Court. The difficulty, arising from the wide variation in the statements quoted, is to define in a satisfactory way, what the principle is.

269 In Rogers v R (1994) 181 CLR 251 at 255 and 280, the offending conduct of the Crown in seeking to pursue a course contrary to a decision in an earlier prosecution was said to amount to an abuse of process. See also Pearce v R (1998) 194 CLR 610 at 29; Island Maritime Limited v Filipowski (2006) 226 CLR 328 at 343. To so consider the matter seems to me to be a more principled approach than an attempt merely to apply one or more of the diverse statements to which I have referred. It is an approach that reflects the values that lie behind concepts of double jeopardy. It is also one that can reflect competing considerations.

270 And I am unable to see that in the circumstances here, considerations of double jeopardy are the only ones relevant. The community has an interest in the prosecution of persons thought to be guilty of offences. While offenders, or at least those in possession of their mental faculties know what they have done, often the knowledge of the authorities is incomplete. Despite that, justice to those thought guilty requires that as soon as evidence is regarded as reasonably sufficient, they should be charged and if acquitted, not charged again.

271 In this case, it was clear that the Applicant had killed his brother in circumstances that amounted to a crime. It would not have been just to either the community or the Applicant for a charge in respect of that killing not to have been brought when it was and this despite the possibility that his account might have been false and he guilty of his parents’ death also. If the police now have reasonable evidence that the Applicant killed his parents it would not be just to the community for him not to be prosecuted for their deaths.

272 In themselves the verdicts for offences against the Applicant’s brother say nothing about he Applicant’s involvement in the death of his parents. It is only if one is permitted or required to consider the reasons for, or circumstances leading to, those verdicts that they become in any way relevant. Although allowing the charges presently brought against the Applicant runs the risk that there may be, in the words of Deane and Gaudron JJ in Rogers v R at 273, 280, “the scandal of conflicting decisions”, it would be a far greater scandal in my view if, because the Applicant had to be prosecuted in 1995 for one killing of which there was no doubt (even if the full story was not known), he can not be prosecuted now for 2 others of which he may be guilty.

273 For these reasons, I agree with the orders proposed by the Chief Justice.

274 HIDDEN J: In relation to grounds 1 and 2, I agree with the reasons of McClellan CJ at CL. As to grounds 3 and 4, I also agree with the Chief Justice. I agree with the orders proposed.

275 LATHAM J: I agree with McClellan CJ at CL on grounds 1 and 2. I agree with the Chief Justice on grounds 3 and 4.

**********

28/11/2007 - "not" omitted. - Paragraph(s) Headnote par [7] second last line.

Citations

Gilham v the Queen [2007] NSWCCA 323

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Cases Citing This Decision

41

Stephens v The Queen [2022] HCA 31

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Cases Cited

25

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7

Walton v Gardiner [1993] HCA 77

Maxwell v The Queen [1996] HCA 46

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CITATION:	GILHAM v REGINA [2007] NSWCCA 323 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 August 2007
JUDGMENT DATE:	26 November 2007
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJ at CL at 135; Hulme J at 224; Hidden J at 274; Latham J at 275
DECISION:	1. Leave to appeal on Grounds 1 and 2 granted ; 2. Leave to appeal otherwise refused ; 3. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Pleas at bar not available – Principle of Incontrovertibility – “manifestly inconsistent” test – Extension of principle of incontrovertibility to convictions – Whether prosecution inconsistent with previous acquittal and conviction - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – s 394A of the Crimes Act 1900 – Guilty plea to manslaughter results in acquittal for murder – Whether an acquittal also indicates the accused was in jeopardy - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Point of commencement of trial – Whether arraignment or empanelment of jury point of commencement of trial - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Absence of acquittal on the merits – Whether evidence was capable of supporting conviction or disproving provocation case - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Whether findings by sentencing judge subject to incontrovertibility principle - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Stay of Proceedings – Abuse of Process – Whether subsequent prosecution was an abuse of process given prior acquittal and conviction – Where the accused found to be in jeopardy but no abuse of process found
LEGISLATION CITED:	Crimes Act 1900, s23, 394A, 395 Criminal Appeal Act 1912, s5F Criminal Procedure Act, s 153, 154, 157 Criminal Code (Canada), s606(4) Evidence Act 1995, s4(2) Marine Pollution Act 1987 Road Traffic Act 1972 (UK), s 5
CASES CITED:	AJS v The Queen (2007) 81 ALJR 1208 Barnes v Gougousis [1969] VR 1019 Broome v Chenoweth (1946) 73 CLR 583 Connelly v Director of Public Prosecutions [1964] AC 1254 Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 Director of Public Prosecutions v Porthouse [1989] RTR 177 Donaldson v Western Australia (2005) 31 WAR 122 Garrett v The Queen (1977) 139 CLR 437 Hackwill v Kay [1960] VR 632 Haynes v Davis [1915] KB 332 Island Maritime Limited v Filipowski (2006) 226 CLR 328 Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401 Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201 Maxwell v The Queen (1996) 184 CLR 501 Mraz v The Queen [No 2] (1956) 96 CLR 62 Norbis v Norbis (1986) 161 CLR 513 Pearce v The Queen (1998) 194 CLR 610 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 R v Dabhade [1993] QB 329 R v Elrington (1861) 121 ER 870 R v Gee (2003) 212 CLR 230 R v Hazeltine [1967] 2 QB 857 R v Helmling (NSWCCA unreported 11 November 1993) R v Janceski (2005) 64 NSWLR 10 R v K; Ex parte Attorney General (Qld) (2002)132 A Crim R 108 R v Maxwell (1994) 34 NSWLR 606 R v McNeill (Ruling No 3) [2007] NFSC 4 R v Naraindeen (1990) 75 CR (2d) 120 R v Nicolaidis (1994) 33 NSWLR 364 R v Storey (1978) 140 CLR 364 R v VN [2006] 15 VR 113 Rogers v The Queen (1994) 181 CLR 251 Russo v Aiello (2003) 215 CLR 643 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 The Queen v Carroll (2002) 213 CLR 635 The Queen v Storey & Anor (1978) 140 CLR 364 Walton v Butler (2004) 150 A Crim R 341 Walton v Gardiner (1993) 177 CLR 378 Ward v Hodgkins [1957] VR 715 Washer v Western Australia [2007] HCATrans 056 Wemyss v Hopkins (1875) 10 LRQB 374 Williams v Director of Public Prosecutions [1991] 1 WLR 1160 Williams v Spautz (1992) 174 CLR 509 Spencer Bower, Turner and Handley, “The Doctrine of Res Judicata” 3rd ed. (1996)
PARTIES:	Jeffrey Gilham (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3283
COUNSEL:	P Boulten SC; P Lange (Appellant) L Babb; J Caldwell; K Shead (Respondent)
SOLICITORS:	Dean Lenz, Murphy’s Lawyers Inc Gareth Christofi, Director of Public Prosecutions
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	468/2006
LOWER COURT JUDICIAL OFFICER:	Howie J
LOWER COURT DATE OF DECISION:	21 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC