R v Kent-Newbold

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 Firstly, he found that the plea of not guilty to the receiving charge had not been withdrawn, and therefore, a plea of autrefois acquit could not be simultaneously on the record.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.