R v Murrell

[2001] NSWCCA 179

Reported Decision: 123 A Crim R 54

New South Wales

Court of Criminal Appeal

CITATION:	R v Murrell [2001] NSWCCA 179
FILE NUMBER(S):	CCA 60432/00
HEARING DATE(S):	10 May 2001
JUDGMENT DATE:	4 June 2001
PARTIES :	Regina Lloyd Anthony Murrell
JUDGMENT OF:	Wood CJ at CL at 1; Kirby J at 47; Mathews AJ at 48

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Studdert J

COUNSEL :	C: P. Berman SC A: J. Doris
SOLICITORS:	S E O'Connor Neil Forshaws
CATCHWORDS:	CRIMINAL LAW - appeal - appeal against conviction - murder - joint criminal enterprise - tape recording of evidence of poor quality - whether admission of tape and transcript into evidence constituted miscarriage of justice - whether new trial should be ordered - discretion of Court - whether verdict of acquittal should be entered for charge of murder or generally - whether new trial should be confined to charge of manslaughter
LEGISLATION CITED:	Crimes Act 1900 s 18 Criminal Appeal Act 1912 s 8 Criminal Procedure Act 1986 s 125
DECISION:	(1) Appeal allowed, conviction and sentence quashed.; (3) New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ at CL

KIRBY J

MATHEWS AJ

MONDAY 4TH JUNE 2001

REGINA v Lloyd Anthony MURRELL

The appellant was convicted of murder. A conversation by the appellant was captured by a listening device and was of critical importance to the Crown case of murder. The recording was of poor quality and the contents and transcript of the conversation were disputed at trial.

The appellant now appeals against the conviction on the grounds that (1) evidence in the form of opinions expressed about the words used and transcripts of what witnesses believed they heard should not have been admitted; (2) the trial Judge should have withdrawn evidence from the jury once it became clear there was significant issue and doubt as to what had been said by the appellant on the tape; (3) the trial Judge failed to give a warning to the jury on the unreliability of the transcripts; (4) the trial Judge failed to give sufficient warning as to the onus of proof of the contents of the recording; (5) the case should have been withdrawn from the jury on the basis that the Crown case was inherently weak; (6) fresh evidence now available would establish that crucial words attributed to the appellant were not uttered by him; (7) the verdict could not be supported having regard to the evidence.

Held: (Allowing the appeal):

Ground 1: miscarriage of justice occasioned by admission of the transcript into evidence

1. The Crown conceded, in light of new expert opinion on the contents of the tape, that the words attributed to the appellant were less inculpatory than those which it had contended at trial had been uttered by him, and that the appellant had lost a real chance of acquittal. In the light of that evidence and the concession it was necessary to allow the appeal and to quash the conviction below.

Gallagher (1986) 160 CLR 392; Mickelberg (1989) 167 CLR 259 applied.

Ground 2: Whether a new trial should be directed and if so, in what terms the order should be made

2. The Court has a wide discretion whether or not to grant a new trial. In deciding whether to direct a verdict of acquittal or to order a new trial the Court is to have regard to the view which a reasonable jury must have reached and not the view of the court itself. In determining whether to grant a new trial it is proper to take into account among other considerations, the public interest in the proper administration of justice as well as the interests of the individual accused.

Pedrana (2001) NSWCCA 66; Director of Public Prosecutions (Nauru) v Fowler (1984) 184 CLR 627; Honeysett (1987) 10 NSWLR 639 applied.

3. On the evidence available in the present case, a properly instructed jury would have to entertain a reasonable doubt about the appellant’s guilt of murder. However, the words spoken by the appellant and his actions provided sufficient evidence for a charge of manslaughter based upon a common enterprise to shoot up the premises, or of accessory after the fact to murder.

4. The question then is whether a verdict of acquittal of murder should be entered and an order made directing a new trial for a lesser offence; or whether there should simply be a quashing of the conviction and an order for a new trial generally. The power of the Court to order a new trial on a lesser count is supported by the words in s 8 (1) Criminal Appeal Act, ‘the Court may…order a new trial in such manner as it thinks fit’ and has some support in prior authority.

Kelly (1923) 32 CLR 509; Miller (9157) ALR 749; Hanias (1976) 14 SASR 137; Callaghan (1952) 87 CLR 145 considered.

5. In circumstances where the original jury had not needed to consider the lesser offence of manslaughter and where the Court still considered that offence to be available it would be inappropriate to enter a verdict that operated as a general acquittal. In order to avoid any residual question of autrefois acquit arising, in the event of the appellant being reindicted for manslaughter or accessory after the fact to murder, the proper course is to order a new trial generally, leaving it to the Director of Public Prosecutions to prefer a count or counts which the available evidence would support.

(1) Appeal allowed, conviction and sentence quashed.

(3) New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL No. 60432 OF 2000

WOOD CJ at CL

KIRBY J

MATHEWS AJ

MONDAY 4TH JUNE 2001

Regina v Lloyd Anthony MURRELL

JUDGMENT

1   WOOD CJ at CL: The appellant was convicted after trial of the murder of Ahmed Homsi, on the night of 9 November 1997. He now appeals against that conviction upon grounds which essentially turn upon the admission into evidence of a conversation in which he participated, and which was captured by a listening device.

The Crown Case

2   The Crown case, in summary, was that the appellant and another man, “Norm”, participated in a joint criminal enterprise to fire a shotgun at the home of the victim. It was the Crown case that Norm was responsible for the shot, which was fired through the closed front door of the home, and which struck the victim while he was standing in the hallway. Another shot had been fired through the front window of the house into the lounge room before the fatal shot, without striking anyone.

3   Upon the Crown case, the victim walked into the hallway after the first shot, when he was called out to face the shooter “eye to eye”.

4   The shooting, it was alleged, followed an argument four days earlier over a car accident, outside the victim’s home, in which a friend of the appellant, Stacey Stephens, had crashed into the parked car of one Said Beyroutieh. That man had been an employee of the victim. The ensuing argument involved a significant number of associates of Beyroutieh, including the victim, and it was one in which the appellant had participated, after being called to the scene by Ms Stephens. It was described as an intimidating scene, and it was alleged that the appellant had been stopped when he endeavoured to start Ms Stephens’ car, and that he had challenged Beyroutieh to a fight.

5   Following the shooting, police installed a listening device in the home of the appellant, under authority of a warrant granted on 2 June 1998, in relation to suspicion of his involvement in armed robberies. It is in relation to the product of a recording made of a conversation on 16 June 1998, between the appellant and Lisa Simpson, that this appeal turns.

6   The Crown alleged that the recording of this conversation, which was significantly affected by background noise, but which had been transcribed by Detective Maree (Ex J), revealed that:

a) Simpson asked the Appellant if he had seen a programme on Channel 7 “Australia’s Most Wanted” (on 6 April 1998), which had featured a re-enactment of the shooting;

b) the appellant replied that he had, and gave a description of the events leading to the shooting, in which he allegedly said that:

(i) Norm had asked him to go with him to the victim’s house;

(ii) Although he was reluctant to go, because Norm had been drinking, he agreed to the request;

(iii) He and Norm stole a car near the victim’s house;

(iv) “Norm went bang through the window”;

(v) he said to Norm, “Norm, through the door ” and that he “could see the bloke someone walkin’ down towards the door, the hall light was on I could see the shadow”;

(vi) Norm then fired the shotgun through the door;

(vii) he said, “Cause what happened the first shot went in through the window, they heard it they come out to have a look and I saw this cunt. I could see a shadow underneath the door and I said Norm fuck the front door ”.

7   The Crown also relied on a second listening device intercept, of a conversation on the evening of 27 June 1998. This was the night before the date on which the appellant had arranged to speak to police. That conversation, which took place between him and two other people, the Crown alleged, revealed that he had said that:

a) he would not tell them what Norm had done but, in response to a question about whether he had bashed somebody or something, he said “it’s worse than that”;

b) he was going to tell the police in the morning that he went to a car accident and that he did not know anything about what happened after that;

c) he would trust Stacy as much as Norm and that “she won’t say fuckin’ nothing”.

8   On the following day the appellant was interviewed by police in relation to the car accident, in the course of which he admitted to having had words with one of the persons present. He did not make any admissions as to his complicity in the shooting.

9   The recording of 16 June 1998, was enhanced by an audio engineer Lachlan Mitchell, in an attempt to remove background noise. His transcript of the conversation (Ex N), following enhancement, differed to some extent from Detective Maree’s transcript, in that he noted the appellant as saying:

a) “… we went over there fuck it, stole a car, went round there [indistinct] bang! ‘did you hear that?’ I said ‘ not through the door , I can see him’”;

b) “ ’cause what happened, the first shot went in through the window, they heard it. They come out to have a look, I seen the cunt walk through, I could see the shadow underneath the door. I said ‘Norm, mind the front door’ …” .
The Appellant’s Case

10   It was the appellant’s case that he had not gone to the victim’s home for the purpose of discharging a firearm or of occasioning anyone harm. Rather, it was his account that somewhat reluctantly, he had given in to pressure from Norm and had been taken with him by Stacey Stephens, to the home of the victim, in order to steal the motor vehicle which had been involved in the accident. As it was not there, they stole another car some blocks away, and drove back to the victim's home, to see whether the vehicle for which they had originally been looking, had returned.

11   Once there, he said that Norm got out of the vehicle, and went berserk, yelling out at the people in the house, before going over to the victim’s house with a bag in his hand. From his position in the car he heard a big bang and saw a flame. He realised that Norm was shooting at the house and he went over in an attempt to stop him. On his account, he said to Norm “No no” and then, when he saw a shadow under the door, he said ‘No no, not the front door”. Norm, however, fired another shot which went through the front door.

12   Having listened to Detective Maree’s transcript, the appellant suggested that there should be some correction to pages 15 and 16 of it, based upon what he recalled of the conversation with Miss Simpson, and upon what he could hear of it, as follows:

a) “I said not through the door, I could see the bloke, someone walkin down towards the door, the hall light was on and I could see the shadow … I said no Norm … he goes fuckin bang”;

b) instead of “Yeah it was a bit gory” I said “ it wasn’t meant”.

c) “We didn’t really go there to do that yeah we didn’t …”.

d) “I could see a shadow underneath the door I said Norm , no the front door.” (Ex 3)

13   In his case, three witnesses with audio engineering experience were called, and there were tendered transcripts of further enhancements of the recording of 16 June 1998. A transcript of an enhancement made by Mr Young (Ex4) revealed the following relevant passage of conversation attributed to the appellant:

(i) “I said, ‘Norm, not through the door … ‘ I could see the bloke, someone walking down towards the door, the hall light was on and I could see the shadow … I said ‘ no Norm I told you someone’s there”;

(ii) “It wasn’t meant ..” instead of “Yeah it was a bit gory …”:

(iii) “We didn’t really go there to do … yeah we did …”

(iv) “Cause what happened, the first shot went in through the window, they heard it, they come out to have a look and I saw this cunt. I could see a shadow underneath the door. I said ‘ Norm not in the front door’ ”;

14   Gregory Edgword, a former radio operator also produced an enhanced disc and a transcript (Ex 6) which recorded the relevant passages as “not through the door” and “… they came out to have a look, I said ‘let’s fuck off’ Cos I could see a shadow underneath the door, I said ‘Norm not in the front door’”.

Grounds of Appeal

15   The Crown relied on the Maree version tendered in its case to establish a joint enterprise to shoot the victim. The versions advanced in the defence case were, however, relied upon to rebut the theory of joint enterprise, or in the alternative, to demonstrate withdrawal from it The version enhanced by Lachlan Mitchell was relied upon for the same purpose. In substance, it was the defence contention that it was only Detective Maree’s version which supported the prosecution case, and that this version was contradicted by the evidence of the other witnesses.

16   It is common ground that the recording of the conversation of 16 June was of critical importance for the Crown case of murder, particularly in so far as the prosecution version suggested that the appellant had encouraged Norm to fire at the shadow which he could see at the front door. It was also critical for the defence case so far as the appellant asserted that it supported his evidence of warning Norm not to shoot at or through the door. That it was critical, was pointed out several times by Studdert J, in the course of the summing up.

17   A number of grounds of appeal have been advanced, all of which turn upon the tender of evidence of the conversation. They are as follows:

a) evidence should not have been admitted in the prosecution case, in the form of the opinions expressed about the words used, and the transcripts of what the witnesses believed they had heard - having regard to its poor quality and to the risk of impermissible prejudice outweighing its probative value;

b) his Honour should have withdrawn the evidence from the jury once it became clear, as the trial progressed, that there was a significant issue and doubt as to what had been said by the appellant;

c) his Honour failed to give sufficient warning to the jury concerning the possible unreliability of the transcripts;

d) his Honour failed to sufficiently direct the jury concerning the onus of proof as to the contents of the recording;

e) at the close of the Crown case the case should have been withdrawn from the jury upon the basis that the evidence relied upon by the Crown was inherently weak, vague and inconsistent with the other evidence;

f) the fresh evidence now available arising out of the report of Dr. Joanne Tibbitts, a specialist in forensic sound and video analysis, would establish that:

(i) the crucial words attributed in Detective Maree’s version to the appellant had not been uttered by him, but that conversely the words uttered were largely as he had contended;

(ii) the tape from which the enhanced recording had been made had either been tampered with, or that the tape provided by the DPP to the appellant’s legal advisers as the original recording, was not in fact the original recording; and

g) the verdict was not one that can be supported, having regard to the evidence.

18   The Crown has conceded, in the light of Dr. Tibbitts’ report, which it accepts to be admissible as fresh evidence, and in the light of further examination of the tape by its own expert, Dr. Helen Fraser, that the conversation attributed to the appellant was less inculpatory than that of which Detective Maree gave evidence.

19   In this regard, there appears to be agreement between them, with some minor differences, that the appellant had spoken words to the following effect:

“… Norm went bang through the window … and I (said or told him) not through the door … (cos or see) I could see … someone walking down towards the door. … the hall light was on and I could see the shadow .. he went fucking bang … I said (says) no Norm .. I’m tellin you there’s someone behind the front door.”

And later:

“The first shot went in through the window. They hear it. They come out to have a look and I seen the cunt walking through … I could see the shadow underneath the door. I said Norm ( mind or not in ) the front door .”

20   During the course of argument on appeal, Counsel accepted that it was now likely that there would be substantial consensus as to the terms of the recorded conversation, if the matter were to be sent for retrial. Some minor differences may remain but the critical passages would substantially be agreed to.

21   In those circumstances, the Crown accepted that the appellant had lost a real chance of acquittal for the offence of murder. Put another way, it accepts that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant of the offence had the present evidence been before it. The test enunciated in Gallagher (1986) 160 CLR 392 and Mickelberg (1989) 167 CLR 259 for the setting aside of the verdict upon the basis of fresh evidence, is accordingly met. This clearly was a proper concession by the Crown which leaves this Court in a position where it must allow the appeal and quash the conviction below.

22 The sole question which remains is whether a new trial should be directed and if so, in what terms the order should be made. The power to grant a new trial arises under S 8(1) of the Criminal Appeal Act 1912, which is in the following terms:

“8(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

23   The Court has a wide discretion whether or not to grant a new trial: Gerakiteys (1984) 153 CLR 317 at 321. As Murphy J observed in King (1986) 161 CLR 423 at 426 to 427:

“Under s 8(1) of the Criminal Appeal Act 1912 (NSW) a new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make.
A new trial is not the inevitable result of a successful appeal against conviction. The onus rests squarely with the prosecution to show the court that a new trial is the most appropriate remedy. In Cheatley v The Queen (1981) Tas SR 123, at pp.137-138, the correct approach is clearly spelled out by Everett J:
‘My conclusion is that there is no presumption in favour of a second trial being ordered when an appeal succeeds, and that the discretion of the court must be exercised on a consideration of all the relevant facts and circumstances. The accused should be accorded neither more nor less personal consideration than the overall justice of the case requires in recognition of the public interest in the fair and impartial administration of criminal justice. I do not accept the counter argument on behalf of the prosecution that ‘the ordinary course should apply.’ I do not consider for the reasons I have expressed, that there should be any ‘ordinary’ course. Each case is individual and should be determined on the basis of the facts and all relevant considerations which apply to it - not to a different case. It is a negation of the wide discretion vested by statute in the Tasmanian Court of Criminal Appeal to suppose that a common mould exists and that all cases should be judged within its framework.”

(Section 404(1) of the Criminal Code (Tas) is in substantially similar terms to s 8(1) of the Criminal Appeal Act (NSW)).
Where there was insufficient evidence at the original trial to warrant a conviction or if the evidence that will be available at any new trial is insufficient then it would be contrary to the interests of justice to order a new trial. The appellant is entitled to an acquittal as of right: Reid v The Queen (1980) AC 343 at 349-350; R v Wilkes (1948) 77 CLR 511 at 518, Andrews v The Queen (1968) 126 CLR 198 at 211, Gerakiteys v The Queen (1984) 153 CLR 317 at 321, 322, 331; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 and Cheatley (1981) Tas SR at 138.

24   As Ipp AJA said in Pedrana (2001) NSWCCA 66, (at para 10-11) in deciding whether to direct a verdict of acquittal or to order a new trial, the Court is to have regard to the view which a reasonable jury must have reached, and not the view of the court itself. Where it concludes that, as a result of fresh evidence, it would have a reasonable doubt as to guilt, the appellant is entitled to an acquittal as of right.

25   The distinction between those cases where the appellant is entitled to an acquittal of right, and those where a new trial is to be ordered, needs to be carefully borne in mind, as Pedrana emphasised.

26   In determining whether to grant a new trial it is proper to take into account, among other considerations, the public interest in the proper administration of justice as well as the interests of the individual accused: Director of Public Prosecutions (Nauru) v Fowler (1984) 184 CLR 627, where the Court said (at 630):

“The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.”

See also Honeysett (1987) 10 NSWLR 638 at 646 per Hunt J and Spies (2000) 74 ALJR 1263 at 1283 in relation to the discretion, the exercise of which depends upon the interests of justice.

27   In seeking an exercise of the discretion in favour of an order for a new trial, in this case the Crown submits that a jury supplied with an enhanced tape, and with a suitably amended transcript to reflect the necessary changes, and paying regard to the remaining circumstantial evidence, could properly return a verdict of murder, or at least one of manslaughter by unlawful and dangerous act.

28   It accepts that it would have to abandon a case of joint enterprise murder depending upon specific intent, that being the first way in which it had originally put its case. However, it submits that there is still a proper case of murder to go to the jury based on the doctrine of common purpose: Johns (1980) 143 CLR 108. This alternative would involve a scenario in which the appellant went to the premises with Norm as part of a joint enterprise to fire shots at it, and contemplated that, as a possible incident of that enterprise, Norm would use the weapon to kill or to cause grievous bodily harm to somebody inside the house.

29   The jury was directed, in this regard, in relation to murder but whether it returned its verdict on the first or second of the two bases left is obviously not apparent from the verdict itself. An express direction was also given in relation to manslaughter by unlawful and dangerous act, in the course of a joint enterprise to shoot up the house. It may be assumed, however, that because of the verdict which was returned, the jury did not find it necessary to consider this alternative.

30   The additional circumstances identified by the Crown, beyond those which would be revealed by the 16 June admissions as to the appellant’s presence at the scene of the shooting relate to:

a) the motive which he had arising out of his anger, in relation to the confrontation following the motor vehicle accident;

b) the continuing anger which he held in that regard, evident in the strong and offensive terms in which he spoke, in the intercepted conversations, of those who had been involved in the incident;

c) the fact that he knew Norm to be drunk and to be a person who was very violent and very abusive when in that state (a matter with which he expressly agreed in his evidence);

d) the absence of any mention, in the recorded conversation, of the visit having been for the purpose of stealing the damaged vehicle;

e) the absence of any apparent motive in Norm to attend the victim’s premises, either to steal the motor vehicle which had been involved in the accident and which was damaged, or to exact revenge upon the victim;

f) the suggestion that, in the ERISP, the appellant had significantly played down the earlier incident, and in particular the extent of his role in it;

g) the flavour of the conversation of 16 June, which, it was put, suggested even upon the most favourable basis for the appellant, that there had been a plan to shoot up the house, rather than a plan to go there simply to steal a motor vehicle.

h) the unchallenged evidence of Mr. Daboussi, who saw the shooting, and who said that he had seen only one man at the front of the house when the shots were fired, and who then noticed the vehicle, to which the gunman had returned, leave the scene very quickly after he reached it. This evidence, it was suggested was capable of supporting the proposition that the appellant had remained in the vehicle as the driver, in order to effect a quick escape, and also opened up the possibility that the intercepted conversation did not accurately record the events at the door, but rather was of a self serving nature to minimise the appellant’s culpability.

31   In addition to these points, the Crown identified what it suggested to be inherent improbabilities or inconsistencies in the evidence given by the appellant at trial. These related to:

a) the suggested inherent lack of credibility in the appellant’s account that:

(i) he had been reluctantly dragged down to the victim’s home;

(ii) Stacey had simply dropped them off, without any vehicle in which they could return home, and without checking first whether the target vehicle was there and could be started;

(iii) a decision had been made to steal a vehicle to drive home only after they had found the “target vehicle” to be missing;

(iv) he was unaware that Norm had a shotgun with him;

(v) the existence of any cause for belief that Mr. Beyroutieh’s vehicle would still be parked outside the victim’s home;

(vi) the proposition that the car was to be stolen so as to avoid paying for its repair;

(vii) the absence of a more determined attempt by him to stop Norm firing the second shot, for example by pushing the barrel away from the door;

b) the clear contradictions in the appellant’s evidence as to whether he had believed that Mr. Beyroutieh lived at the premises, and as to who had driven the car away from the scene of the shooting.

32   These further submissions in relation to suggested weakness in the evidence of the appellant, assume that in a new trial, his evidence at the first trial could be placed before the jury, either because he would give the same evidence in chief or in cross examination if called, or that otherwise the transcript could be tendered by the Crown.

33   Upon my assessment of the evidence which may be assumed to be available, a properly instructed jury would have to entertain a reasonable doubt about common purpose murder. It is one thing to go to premises with a loaded firearm contemplating its possible use to shoot someone, and quite another thing to go to those premises contemplating its use to shoot the premises up. Upon the available evidence, the Crown case could not in my view rise above one of manslaughter by unlawful and dangerous act, based upon a common enterprise to call at the victim’s premises to shoot them up, or to employ the language used by the Crown Prosecutor, in the cross examination of the appellant, “to put the wind up people inside the house”. Moreover, it appears to me that even assuming the recorded conversation to have been in the terms most favourable to the appellant, the words spoken and the limited intervention offered would not constitute a withdrawal from the form of joint enterprise which is alleged in this latter respect. I am accordingly persuaded that there is a sufficiency of evidence to support that offence, so that a new trial should be ordered.

34   The question which was then debated upon appeal was whether a verdict of acquittal of murder should be entered and an order made directing a new trial for manslaughter alone; or whether there should simply be a quashing of the conviction and an order for a new trial generally.

35 Both the Crown and Counsel for the appellant questioned whether the court could direct a verdict of acquittal for murder and make an order for a new trial confined to the lesser offence of manslaughter. That a power to order a new trial on a lesser count exists, in appropriate cases, is suggested by the presence, in s8(1) of the Criminal Appeal Act, of the words “the Court may … order a new trial in such manner as it thinks fit”.

36   Although Counsel were unable through their research to find any instance where this had occurred, there is in fact precedent for it in Kelly (1923) 32 CLR 509, a decision that has been followed in Miller (1951) ALR 749; Hanias (1976) 14 SASR 137 and Callaghan (1952) 87 CLR 115. Kelly was a case where the accused had been convicted at trial, on an indictment for murder, only of manslaughter; Miller is, however, more directly in point, since the jury had there convicted of murder, but on appeal that conviction was quashed. A new trial was directed for manslaughter alone. The Court did not in that case direct an acquittal for murder.

37   There is also support for the proposition that where, on an indictment for murder, there has been no general acquittal, and the record shows that, while the jury acquitted the prisoner of murder, they were discharged without giving a verdict on manslaughter, because of their inability to agree on such a verdict, the issue between the Crown and the accused of a felonious killing, falling short of murder, may properly be taken as not having been concluded; and on that basis does not give rise to a defence of autrefois acquit: Quinn (1952) 53 SR (NSW) 21. That a decision would suggest, however, that the contrary position would arise where there was a general acquittal.

38   Applying the reasoning in that case, it would follow that, if the verdict now entered in this Court was one of general acquittal, then it would also operate as a discharge upon the original indictment of the appellant on the charge of manslaughter. However, in circumstances where the original jury had not needed to consider the lesser offence of manslaughter and where the Court considered that offence to still be available, it would, in my view, be inappropriate for this Court to enter a verdict that operated as a general acquittal on the indictment.

39   The difficulty which arises in this regard is that, as a matter of law, a plea of not guilty to an indictment charging murder is a “plea of the general issue to every allegation of fact necessary to make the killing a felony” whether it be that of murder or manslaughter (per Owen J in Quinn at 24). As Herron J put it in Quinn at 27, “an indictment operates so as to charge the accused, not only with the major charge specified in it but with any lesser offence for which on such charge he becomes liable to conviction”.

40   Earlier, at 25-26, his Honour noted that the plea of autrefois acquit:

“… is based on the doctrine of res judicata . It may best be re-stated by citing the oft-quoted passage from Lord Reading’s judgment in R v Barron (1914) 2 KB 570 at 574:
‘The principle on which this plea depends has often been stated. It is this, that the law does not permit a man to be twice in peril of being convicted of the same offence. If, therefore, he has been acquitted, ie found to be not guilty of the offence, by a court competent to try him, such acquittal is a bar to a second indictment for the same offence. This rule applies not only to the offence actually charged in the indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment. Thus an acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter, as the jury could have convicted of manslaughter”.
For the plea to be well founded there must, on the former charge, have been a legal verdict returned. This means that a verdict of not guilty or guilty of the crime charged must have been found for or against the accused. It is sufficient to support the plea to show that a verdict of guilty has been returned by a jury which is subsequently set aside on appeal , eg on the ground of wrongful admission of evidence and where the Court of Appeal discharges the prisoner . If an accused person is again put on his trial under circumstances of that sort, it is quite clear that he could plead a plea to the jurisdiction of the Court to try him again: Reg v O’Keefe (1893) 15 NSWLR 1. Perhaps in such a case the plea of autrefois acquit may not be quite apt, but there is a res judicata . The principle is that a man is not to be prosecuted and stand in jeopardy twice for the same offence.
But there must be a legal verdict. If no legal verdict is returned at the first trial, the prisoner is not to be regarded as being in jeopardy, and he might be tried again. There must be a true judicata and not merely proof of the res .”

41 The common law position, noted in this decision, is confirmed in S 125 of the Criminal Procedure Act 1986 which provides:

“125. If under any Act a person who is tried for a serious indictable offence may be acquitted of the offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence.”

Although s 18 of the Crimes Act 1900 does not expressly provide that a person charged with murder may be convicted of manslaughter, that is implicit both in the Section and at common law.

42   It would be prudent to avoid any residual question of autrefois acquit arising, in this case, it being one in which the original jury obviously did not consider manslaughter, and being one in which I am of the view that the Crown should be permitted, in the interests of the proper administration of justice, to re-indict the appellant for that offence, or for the offence of accessory after the fact to murder (an option that is open to it both as a matter of law: Nicholas (1989) 45 A Crim R 299, and upon the available evidence).

43   The proper course, I consider, is not to enter a verdict of acquittal, or to order a new trial on manslaughter alone. Rather, the preferable course is to quash the conviction and to order a new trial generally, thereby precluding any argument that, by the Court’s order, the Director of Public Prosecutions could not present an indictment charging either as a single count or as a back up charge, the offence of accessory after the fact to murder, which may turn out in fact to be the more appropriate charge.

44   Any concern which the appellant may have that the Crown could use the opportunity so given, to bolster a case of murder by gathering new evidence to support such a charge, is lacking in foundation. The inappropriateness of ordering a new trial to allow that to occur was noted in Wilkes (1948) 77 CLR 511 at 518 per Dixon J, by the Court in DPP (Nauru) v Fowler in the passage cited earlier, and by this court in Ward (1989) 42 A Crim R 56. There is no suggestion that this is what is proposed in the present case.

45   The decision whether a second trial should proceed for manslaughter, or for accessory after the fact to murder, can in my view be safely left to the discretion of the Director of Public Prosecutions, a discretion which it may be assumed will be exercised responsibly, having regard to these remarks, before framing an indictment which the evidence is capable of supporting.

46   I would accordingly propose that the appeal be allowed, that the conviction and sentence below be quashed. I would order a new trial.

47   KIRBY J: I agree with Wood CJ at CL.

48   MATHEWS AJ: I agree with Wood CJ at CL.

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