R v Kent-Newbold - [1939] HCA 37

KENT-NEWBOLD

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF Criminal Law-Autrefois acquit-Acquittal on 'stealing" charge--Non-agreement

by jury on "receiving" charge-Retrial on "receiving" charge-Criminal Code (Tas.) (14 Geo. v. No. 69, 1st Sch.), secs. 234, 258, 311, 332*, 338*, 355*. Nov. 20, 21.

The respondent was tried upon an indictment containing (a) a count for stealing a motor car between 19th December 1938 and 6th February 1939, and (b) a count for receiving the same motor car on 6th February 1939. He was acquitted on count a, and the jury were unable to agree on count b. Upon his second trial upon count b the respondent pleaded a plea of autrefois acquit based upon his acquittal on count a and the provisions of secs. 355 (1), 338 (1) and 332 of the Criminal Code (Tas.).

Held that the plea was a bad plea; by Latham C.J., on the ground that sec. 332 precludes an acquittal upon one count from supporting a plea of autrefois acquit in respect of an "alternative" crime charged in another count The Criminal Code (Tas.) provides

but not, upon that indictment, of any -Sec. 332 Where in any section it

other crime." Sec. 338 (1) "Upon is provided that upon an indictment

an indictment for-I. Stealing: II. for any particular crime the accused

Obtaining property by a false pretence person may be convicted of any other

III. Cheating or IV. Receiving stolen specified crimes it shall be intended

property-the accused person may be thereby that if the jury find such

convicted of any of such crimes respec- person not guilty of the crime with

tively." Sec. 355 (1): " An accused which he is charged he may be con-

person may plead to an indictment- victed of such other of the crimes

II. That he has already been specified in such section as is estab-

acquitted or convicted-(a) of the issue lished by the evidence to have been

charged in the indictment (b) upon committed by him, or of an attempt

an indictment upon which he might have been convicted of that crime." attempt is established as aforesaid,

62 CLR 399

in the same indictment by Starke J., on the ground that upon the true H. C. construction of the indictment the respondent was never in jeopardy under count a of the crime charged in count b; and by Dixon J., on the ground that where in one indictment a count for a crime falling under any of the secs. 333 to 338 is joined with a count making a specific charge of another crime falling under that section sec. 332 does not authorize a conviction for that specific charge on any part of the indictment except the count making it.

Decision of the Supreme Court of Tasmania (Full Court) reversed.

APPEAL from the Supreme Court of Tasmania.

The Attorney-General of Tasmania, on behalf of His Majesty the King, appealed to the High Court by special leave from a decision of the Full…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kent-Newbold

Details

AGLC: R v Kent-Newbold [1939] HCA 37
Case: [1939] HCA 37
Decision Date: 7 December 1939

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Tasmania concerning a plea of autrefois acquit. The respondent, Ernest Joseph Kent-Newbold, had been tried on an indictment with three counts: stealing a motor car, and two counts of receiving the same stolen motor car on different dates. The jury acquitted him of stealing and one receiving charge, but could not agree on the second receiving charge. Upon a subsequent trial for the second receiving charge, the respondent pleaded autrefois acquit, arguing he had already been acquitted of a crime upon which he could have been convicted of receiving.

The legal issues before the High Court were whether the respondent's acquittal on the stealing charge, coupled with the jury's inability to agree on the receiving charge, constituted a lawful acquittal for the purposes of a plea of autrefois acquit in relation to the second receiving charge. Additionally, the court considered whether the plea of autrefois acquit could be validly raised when a plea of not guilty to the same charge remained on the record. The court also had to interpret the interplay between sections 332, 338, and 355 of the Tasmanian Criminal Code, which govern alternative convictions and pleas of autrefois acquit.

Latham C.J. held that the plea of autrefois acquit was bad on two grounds. Firstly, he found that the plea of not guilty to the receiving charge had not been withdrawn, and therefore, a plea of autrefois acquit could not be simultaneously on the record. Secondly, and more substantively, he reasoned that section 332 of the Criminal Code, which deals with alternative convictions, precluded an acquittal on one count from supporting a plea of autrefois acquit in respect of an "alternative" crime charged in another count within the same indictment. Starke J. agreed that the plea was bad, finding that the respondent had not been in jeopardy of being convicted of receiving under the stealing count. Dixon J. concurred, stating that section 332 does not authorise a conviction for a specific charge on any part of the indictment other than the count making that specific charge, even when joined with counts for alternative crimes.

The High Court allowed the appeal, discharged the order of the Supreme Court of Tasmania, set aside the acquittal, and remitted the respondent for trial on the third count. The appellant was ordered to pay the respondent's costs.

Orders