R v P, NJ
[2006] SASC 309
•6 October 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v P, NJ
[2006] SASC 309
Reasons for Ruling of The Honourable Justice Layton
6 October 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR
Applicant convicted in 2003 of wounding with intent to do grievous bodily harm and acquitted of attempted murder - victim since deceased - applicant now charged with murder - whether plea in bar available - application to stay prosecution as an abuse of process - held: autrefois acquit and autrefois convict inapplicable, plea in bar not available - this is not an appropriate case for a stay - application dismissed.
R v P, NJ [2003] SASC 308; Blockburger v United States (1932) 284 US 299; Chai Gee v Martin (1905) 3 CLR 649; Li Wan Quai v Christie (1906) 3 CLR 1125; Weymess v Hopkins (1875) LR 10 QB 378; Island Maritime v Filipowski (2006) 80 ALJR 1168; Rucioch v Police (2004) 88 SASR 326; Pearce v The Queen (1998) 194 CLR 610; R v Kent-Newbold (1939) 62 CLR 398; R v Carroll (2002) 213 CLR 635; Jago v District Court of NSW (1989) 168 CLR 23, discussed.
R v P, NJ
[2006] SASC 309Criminal
Layton J.
Introduction
P, NJ (“P”) is charged on an information in the Supreme Court with the offence of Murder. He seeks to enter a plea in bar, or in the alternative seeks a permanent stay on the basis that the prosecution constitutes an abuse of process.
Facts
P was convicted of wounding with intent to cause grievous bodily harm and acquitted of attempted murder in 2003, after a trial before Judge Alone in the Supreme Court of South Australia.[1] The particulars of the charges were that on 24 September 2002 at Thevenard P attempted to murder [H], or in the alternative maliciously wounded [H] with intent to do grievous bodily harm.
[1]R v P, NJ [2003] SASC 308.
The prosecution case at trial was that P attacked [H] with a knife causing him a wound to the side of his head. [H] suffered severe brain damage as a result of the attack.
P was sentenced to seven years imprisonment in respect of the conviction for wounding with intent to do grievous bodily harm, with a non-parole period of 4 years. At the present time he is still serving that sentence, although his non-parole period has expired.
On 4 January 2006 the Director of Public Prosecutions (“DPP”) laid a new information in the Supreme Court charging P with the offence of murder. The particulars of that charge are that P on the 24th day of September 2002 at Thevanard, murdered [H]. The prosecution case is that [H] has now died of the wounds he received on 24 September 2002.
Since the Criminal Law Consolidation (Abolition of Year and a Day Rule) Amendment Act 1991 came into force on 31 October 1991, it is no longer necessary for murder for the victim to have died within a year and a day of the act which causes death.
The trial on the new information is listed to commence in Pt Augusta on 9 October 2006. On 5 September 2006 P, via his counsel, filed an “Application Pursuant to Rule 8” seeking the following orders:
1.That the Applicant not be prosecuted for the offence of Murder, because to do so, offends the principles of autrefois convict and autrefois acquit.
2.In the alternative, that the applicant not be prosecuted for the offence of Murder, because to do so offends the principles of double jeopardy.
3.In the alternative, that the Applicant not be prosecuted for the offence of Murder because to do so would be an abuse of the process of this Honourable Court.
The application was heard on Friday 29 September 2006 in the absence of the Applicant. At that hearing Mr Hinton appeared on behalf of the DPP, and Mr Retalic appeared on behalf of the Applicant. On Thursday 5 October 2006, in the presence of the Applicant, I delivered my ruling on the application, and indicated that I would deliver my reasons the following day. These are those reasons.
Procedure
The application proceeded on two bases: first, that a plea in bar was available to P; and second, that a stay of proceedings should be granted. These two grounds largely reflect paragraphs one and three in P’s application. In argument Mr Retalic conceded that the “double jeopardy ground”, namely ground two, was not arguable in itself, but that rather the principles known as ‘double jeopardy’ fell to be considered in determining the other two grounds of the application.
At common law a defendant cannot concurrently maintain a plea of not guilty and a plea in bar.[2] Given the nature of the first ground of the application, Mr Retalic therefore sought leave to withdraw his client’s plea of not-guilty and to enter a plea in bar. That course was not opposed by Mr Hinton and leave was granted.
[2] R v Kent-Newbold (1939) 62 CLR 398, per Latham CJ at 406, per Starke J at 412.
It therefore now falls to me to determine whether a plea in bar is available to P, and if not, whether the prosecution should be stayed.
Plea in Bar
The case law with regard to plea in bar, double jeopardy, issue estoppel and abuse of process in criminal law, is highly complex and difficult. There are many possible permutations which may arise. Those permutations include: whether the plea in bar is for autrefois convict or autrefois acquit; whether the offences charged could both have been laid at the same time or not; whether the first offence charged is a lesser form of the second offence charged or the reverse; whether it is trial by jury or by judge alone; and whether the issue is one of determination of guilt or quantification of punishment.
In this case, the plea in bar was predominantly argued on the basis of autrefois convict, although an issue of autrefois acquit was impliedly raised.
In relation to autrefois convict, the second offence with which the accused is charged is murder, which is a more serious charge than the first offence, being a conviction for wounding with intent to cause grievous bodily harm. The accused was convicted by a judge sitting alone. The charge of murder could not have been laid at the time of the first offence, as at that time, the victim had not died. The issue concerns whether the accused should be put on trial and is not at this point concerned with punishment.
Regarding autrefois acquit, the second offence charged is again murder, which is a more serious charge than the earlier charge of attempted murder. Again, the charge of murder could not have been laid at the time of the first offence as the victim had not died.
The case of Pearce v The Queen[3] is a seminal case in relation to pleas in bar. This case was the subject of competing interpretations by counsel for the DPP and counsel for the accused, and also differing application by each to the facts at bar.
[3] (1998) 194 CLR 610.
In essence counsel for the DPP submitted that Pearce was authority for the proposition that a plea in bar applied only where the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in another. This test, it was submitted, was only concerned with elements and not with facts. It was submitted that the elements of the offence of murder are not the same as or wholly included in the elements of the offence of attempted murder or wounding with intent to cause grievous bodily harm. Likewise it was submitted that the reverse applied, namely that the elements of the offence of attempted murder and the elements of the offence of wounding with intent to cause grievous bodily harm are not the same as, nor wholly included in the elements of the offence of murder. Therefore it was contended that neither plea in bar is made out.
By contrast, counsel for the accused submitted that the case of Pearce indicated, particularly in paragraphs [27–28], that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of a fact, which the other does not. In short it was submitted that a court was required to consider whether the same act or transaction was involved and then consider whether each of the statutory offences requires proof of a fact, which the other does not. It was therefore submitted that in this case, the same act was involved in each offence, namely a stabbing, being the actus reus of both offences. Also the same mens rea was involved in each offence, namely stabbing with intent to cause grievous bodily harm. Therefore it was argued the offence of wounding with intent to cause grievous bodily harm was wholly included within the offence of murder and the fact of the death was only an additional element which did not alter the situation. Hence it was submitted that a plea in bar was made out.
In considering the differing contentions, both counsel relied on paragraph [28] of the reasoning of McHugh, Hayne and Calinan JJ (the majority) in Pearce, who stated:[4]
Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of the fact which the other did not. It follows that no plea in bar could be upheld. (emphasis added)
[4] Pearce v The Queen (1998) 194 CLR 610, 620 per McHugh, Hayne and Callinan JJ.
Mr Retalic submitted that the last sentence of this paragraph indicates that a court is required to consider the facts involved in the respective offences, and that this submission was reinforced by the earlier discussion of the case of Blockburger[5] by the majority judges in Pearce. The majority judges stated that the Court in Blockburger held that:[6]
…where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offences or only one, is whether each provision requires proof of the fact which the other does not.
[5] Blockburger v United States (1932) 284 US 299.
[6] At 304.
The majority judges in Pearce then discussed the fact that the Blockburger test was subsequently overruled and then reinstated in the case of United States v Dixon,[7] and adverted to the reasons given by Scalia J, who referred to the unstable application of an additional test regarding the conduct the prosecution was required to prove in establishing an essential element of the second offence. It is in that context that paragraph [28] of Pearce purports to summarise the conclusion of the majority judges on the issue.
[7] (1993) 509 US 688.
It can be seen in both paragraph [28] of Pearce and in the dictum of the court in Blockburger, that reference is made to whether each offence “requires proof of a fact which the other does not”. In considering the different contentions by counsel in the case at bar it is necessary to have a closer look at the context of other expressions used in the reasoning of the majority.
Paragraphs [20], [21] and [24] of Pearce are relevant. In paragraph [24], the reasoning of Griffith CJ is averted to in the cases of Chai Gee v Martin[8] and Li Wan Quai v Christie.[9] The majority judges conclude:[10]
Closer examination reveals that the inquiry suggested is different: it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they might say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges are arise out of the same transaction or course of events. (emphasis added)
[8] (1905) 3 CLR 649.
[9] (1906) 3 CLR 1125.
[10] At 617.
Their Honours continue:
Further, when it is said that it is enough if the offences are “substantially” the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration. (emphasis added)
Then further, their Honours discuss the case of Weymess v Hopkins[11] and the differing expressions used in that case. Their Honours conclude in paragraphs [24] and [25]:[12]
Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.
Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limitations be temporal or would they be founded in the intentions of the actor? (emphasis added)
[11] (1875) LR 10 QB 378.
[12] At 618.
In my view, their Honours use of the phrase “proof of a fact”, in the overall context of the quotations referred to above, does not suggest that the word “fact” is to be interpreted broadly so as to include simply facts in dispute which may be a substratum of facts. Instead the word “fact” in the context appears to refer to the elements of the offence or the essential or material facts required to be proved to make out the offence. This approach is also consistent with the reasoning of Gummow J, who endorsed the reasoning of the majority and referred to Rehnquist CJ in United States v Dixon, whom he said had stated:[13]
…[T]hat the cases applying Blockburger "have focused on the statutory elements of the offences charged, not on the facts that must be proved under the particular indictment at issue".
[13] At 628.
His Honour also noted that the New Zealand Court of Appeal took a similar approach.
In summary, Pearce is authority for the proposition that the availability of a plea in bar is confined to cases in which the elements of the offences charged are identical, or in which all of the elements of one offence are included another.[14] In deciding this question, the Court is not concerned with whether the offences arise out of the same conduct, or out of a single event or connected series of events. Nor is consideration required to be given to identification of what witnesses might be called or what they would say,[15] nor what facts must be proved.[16] Nor is a court concerned with the evidence to be given at trial on the second offence except to a limited degree in a particular case, to assist in the identification of the elements of the offences.[17]
[14] See also Rucioch v Police (2004) 88 SASR 326 at 331 per Doyle CJ.
[15] Pearce v The Queen (1998) 194 CLR 610, 617.
[16] Pearce v The Queen (1998) 194 CLR 610, 628.
[17] Pearce v The Queen (1998) 194 CLR 610, 620.
Autrefois convict
In applying these principles to determine whether autrefois convict is available in relation to murder, the first consideration is whether the elements of the offence of murder are identical to the elements of the offence of wounding with intent to cause grievous bodily harm.
The elements of the offence of wounding with intent to cause grievous bodily harm are that there must be a wounding of a person, namely a breaking of the skin of the person; the wounding must be caused by an accused with the intent to cause grievous bodily harm to the person; finally, the intent must be to cause grievous bodily harm, and recklessness is not sufficient.[18]
[18] R v Hoskin (1974) 9 SASR 531.
The elements of the offence of murder are that there must be a death of a person which was substantially caused by the accused. The accused in causing the death must have either an intent to kill, or intent to cause grievous bodily harm, or know that his action would probably cause death or grievous bodily harm to a person and be recklessly indifferent.
It is clear when setting out the elements of each of the offences that these elements are not identical. The most obvious difference is that the offence of wounding with intent to cause grievous bodily harm does not require that the accused substantially caused death of a person. It is also apparent that the mens rea in relation to both offences are not identical.
The second consideration is whether the elements of one offence are wholly included in the elements of the other. It can be seen from the elements of each of the offences set out above, that the offence of murder requires the death of a victim, which element is not required nor is it wholly included in the elements of the offence of wounding with intent to cause grievous bodily harm. Further, the intent required for murder is not wholly included in the intent required for wounding with intent to cause grievous bodily harm, although one basis upon which a person may be convicted of murder is if there is an intention to cause grievous bodily harm. That intention is common to both offences. Although there may be one common element to the first offence which may be included in the second offence, the other alternative ways of fulfilling the mens rea of murder (namely intent to kill or knowing that the act would probably cause is death or grievous bodily harm and being recklessly indifferent), are not included in the offence of wounding with intent to cause grievous bodily harm. Therefore, the elements of murder are not wholly included in the offence of wounding with intent to cause grievous bodily harm.
Further, the offence of wounding with intent to cause grievous bodily harm requires a wounding in the sense of a breaking of the skin. A wounding is not required for murder. Therefore the elements of wounding with intent to cause grievous bodily harm are not wholly included in the offence of murder.
There is some suggestion in the authorities that the test for the plea in bar may depend on the order in which the offences are charged.[19] However it now appears settled that this is not the case.[20] In Rucioch v Police[21] Doyle CJ said:
The decision in Pearce is the decision to be applied by this Court, and to the extent that anything said in O’Loughlin departs from that decision, it is to be disregarded.
…
Accordingly, the recording of a conviction on each count is open to objection, as a matter of law, only if the elements of the offence are the same, or if the elements of one offence are included in the other offence.
[19] See e.g. R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 per Bray CJ.
[20] Island Maritime v Filipowski (2006) 80 ALJR 1168.
[21] (2004) 88 SASR 326, 331.
In conclusion therefore, no autrefois convict applies in this case as the elements of the offences are not identical, nor are the elements of either offence wholly included in the elements of the other offence.
Autrefois acquit
The accused in this case was acquitted of attempted murder. The offence of attempted murder has the following elements: first, that the accused intended to kill the victim; second, that the accused attempted to execute that intention to kill by an act or acts which were immediately directed towards fulfilling that intention; and third, that the accused had no lawful excuse.
In applying the test for plea in bar, it is clear that the elements of the offence of attempted murder and murder are not identical. An obvious difference in the elements of the offence is that no death of the victim is required for an attempted murder, whereas this is an element of the offence of murder.
To consider then whether the elements of murder are wholly included in the offence of attempted murder, again, it is the absence of the accused having caused the death of the victim which indicates that the elements are not wholly included.
Likewise, the elements of attempted murder are not wholly included in the elements of murder. Whilst the element of intent to kill may potentially be common to both offences, it is an essential ingredient in attempted murder, but only one of the intentions that are required for murder. An offence of murder may proceed without proof of an intent to kill. Further, the second element of attempted murder - namely an act or acts done which are immediately directed towards fulfilling the intention to kill - is not an element of murder. Put another way, in the offence of murder, the act causing death is not required to have been performed in furtherance of an intention to kill. In the offence of murder, the act of the accused which causes the death requires, more simply, a temporal connection to the intent. Therefore the elements of attempted murder are not wholly included in the elements of murder, and no autrefois acquit would apply.
Returning again to the element of intent to kill and whether this element of attempted murder is wholly contained the elements of murder. It is helpful to have regard to the rationale behind or the values encompassed[22] in the test of whether an offence is wholly included in the other. The rationale or values encompassed, is that on the trial for an offence which wholly includes an offence the subject of an earlier acquittal, the accused is placed in jeopardy a second time for the same offence. This is because conviction on the subsequent charge will of necessity imply guilt of the first of which the accused has been acquitted.
[22] Island Maritime v Filipowski (2006) 80 ALJR 1168, per Gummow, Hayne and Kirby JJ.
As an example, if the accused had previously been acquitted of serious criminal trespass, and subsequently stands trial for aggravated serious criminal trespass, the accused would be in jeopardy a second time of being shown guilty of serious criminal trespass. That is because on conviction for aggravated serious criminal trespass, it would be necessarily inferred that he or she had in fact been guilty of serious criminal trespass.
The same cannot be said of attempted murder and murder. A conviction for murder may proceed on the basis of an intent to cause grievous bodily harm or reckless indifference, rather than an intent to kill. On that basis it could not be said that on a later conviction for murder the accused was necessarily guilty of the earlier charge.
This result arises because of the alternative nature of the elements of intent in murder. Where the first offence contains elements A, B and C, and the subsequent charge contains elements A, B, C and D, the first is wholly included in the second. But where the first charge contains elements A, B and C, and the second contains elements A, B and either C or D or E, then the first is not wholly included within the second. Therefore on that basis alone, the earlier acquittal for attempted murder is no bar to a subsequent charge of murder.
This approach looks to whether all of the elements are necessarily wholly included in the other and not whether all of the elements are possibly wholly included within the other. Such an approach is consistent with the nature of the doctrine. A plea in bar provides a legal bar to a prosecution. There is no discretion to allow it to continue. If the more expansive interpretation of wholly included, namely possibly wholly included, were adopted there would be a legal bar to certain prosecutions merely because it is possible that they might offend against the principles behind autrefois acquit. That would not be appropriate. It must not be forgotten that the Court retains a discretion to stay a prosecution for an abuse of process or for unfairness. In situations where infringement of the principles of autrefois acquit and autrefois convict possibly but not necessarily exist, the Court will carefully scrutinise the prosecution, including the nature of the case sought to be lead, to determine if a stay is required. But it would be inappropriate that there be a legal bar in such situations.
Even if this analysis is not correct, there is still the second element, namely that in the offence of murder, the act causing death is not required to have been performed in furtherance of an intention to kill as indicated above.
Further, as I indicate hereafter, in this case the possibility of a double jeopardy arising as identified above will not materialise. The prosecution has indicated that it will not open on or seek to prove that P had an intention to kill the victim.
Abuse of Process
Mr Retalic further submits that, if a plea in bar is not available, the proceedings should be stayed as an abuse of process. It is clear that this Court has the power in its inherent jurisdiction to stay a prosecution where it constitutes an abuse of process.[23]
[23] See eg. R v Carroll (2002) 213 CLR 635.
Abuse of process involves broader considerations than those relevant to plea in bar. There are a number of factors in this case which Mr Retalic says should lead the Court to grant a stay. In broad terms, the first is that the prosecution would offend the principle discussed in Carroll’s case as it would seek to undermine the earlier acquittal of attempted murder. The second relates to considerations of fairness to P. The third is related to what are said to be public interest considerations.
The principles relating to the jurisdiction to order a stay of proceedings are relatively clear. The power will be exercised where unfairness arises in the course of a trial, and operates to prevent the continuation of proceedings that constitute an abuse of the processes of the Court.[24] The power is only exercised in exceptional circumstances.[25]
[24] Jago v District Court of New South Wales (1989) 168 CLR 23, 46, per Brennan J.
[25] Jago v District Court of New South Wales (1989) 168 CLR 23, 31, per Mason J.
The first strand of Mr Retalic's argument is that the current prosecution impermissibly raises the question of the correctness of the earlier conviction and acquittal. In Carroll's case, the High Court held that an earlier acquittal was incontrovertible, and that a future prosecution for perjury that impliedly sought to prove the earlier acquittal incorrect was an abuse of process. Mr Retalic submits that a conviction for murder in the face of the earlier acquittal for attempted murder would relevantly offend against the incontrovertibility of the earlier decision. The same is said to be the case with respect to the earlier conviction, mutatis mutandis, if there were to be an acquittal on the new charge.
Mr Hinton submits that no such conflict is possible. He submits that a conviction for murder can stand alongside an acquittal for attempted murder, on the basis that the offender had the intent to cause grievous bodily harm, but not to kill. Similarly he submits that an acquittal for murder can stand alongside a conviction for wounding with intent to do grievous bodily harm on the basis that causation may not be accepted.
He submits that this matter is relevantly different to that in Carroll because the prosecution does not impliedly set out to undermine the earlier verdict. Rather, the prosecution case against P will be consistent with the earlier verdict. As previously indicated, the prosecution will not allege that P had an intention to kill the victim.
Mr Retalic argued that if his client was tried and found not guilty of the offence of murder, this outcome would undermine and bring into question the earlier verdict of the trial judge. In my view, the principle governing incontrovertible verdicts is not dependent on the outcome of a verdict in another trial in which the elements of the offence are different, but rather whether a new prosecution seeks to impeach or undermine a previous verdict.
I accept Mr Hinton's submissions on that point. The prosecution in this matter does not seek to use the processes of the Court for a collateral purpose. It does not seek to undermine an earlier decision of the Court or seek to controvert that conviction, nor indeed to controvert the trial judge’s findings in relation to the proof of the elements of the offence of wounding with intent to do grievous bodily harm, nor seek to challenge the finding that there was no intention to kill.
The second main thread of Mr Retalic's submission was that a new prosecution would be unfair to P. It was not suggested that it might be unfair in the sense of possibly leading to an incorrect result, but rather that having seen out one set of proceedings and substantially served the punishment imposed on the earlier conviction, it would now be unfair to P to require him to submit to that process again. It was put that P was entitled to assume after his first trial that the proceedings against him had come to an end. It was submitted that he is a young aboriginal man, and that a significant period of time has elapsed between the death of the victim and the laying of the new information. [H] died on 28 June 2004, whilst P was in custody. The information was not laid until 4 January 2006, whilst he was still in custody and not yet eligible for parole. There was no evidence as to the cause of this delay, and without doubt this delay is regrettable, the more so because of P's non-parole period having expired recently on 26 September 2006. As such, if it were not for these proceedings he would be eligible for release.
At the same time, it is important to consider fundamental issues related to the charging of offences. The offence of murder could not have been the subject of a charge at the time when the original information was laid, nor when the trial was heard and conviction recorded. At the time of P's earlier trial the victim was still alive. Further, there is no evidence to suggest that there was ever a representation made to P that, should the victim die, he would not be required to stand trial. That death could have occurred at any time. In fact, given the view I take of the law with regard to pleas in bar, the possibility of a future trial for murder remained a real possibility so long as there remained a chance that the victim might die of his wounds.
Apart from any general unfairness that may be inferred from the facts already mentioned, there is no evidence before me of any actual or particular distress that this new prosecution has caused P. In Pearce v The Queen, Kirby J noted that the power to provide a stay requires that special circumstances be shown. His Honour said:[26]
The jurisdiction does not exist to give effect to general judicial sense of 'fairness', substituting this for prosecutor's decisions (made within power) which are ordinarily exempt from judicial superintendence. Clearly however, if oppression of, or prejudice to, an accused person can be demonstrated, the provision of a stay of proceedings upon the offending indictment, or count of the indictment, is warranted.
[26] Pearce v The Queen (1998) 194 CLR 610, 649.
While I accept that there would necessarily be some effect of the fresh charge, there is no evidence that P is affected in such a way as to take this out of the normal case and demonstrate that it is an oppressive prosecution.
The third strand of Mr Retalic's argument, regarding public interest considerations, relies on the assertion that public confidence in the administration of justice would be undermined by the possibility of what would appear to be inconsistent verdicts. It is argued that such inconsistency would bring the administration of justice into disrepute in the minds of ordinary people, the more so because the earlier decision was given by a Judge sitting alone. I have concluded above that any possible verdict on this trial would not necessarily be inconsistent with the verdicts at the earlier trial.
Contrary to Mr Retalic’s submission, I do not accept that the man or woman in the street would not understand that a person who is acquitted of attempted murder may still be charged with murder, if given an understanding that death is not required for attempted murder, and that the person may not have had the intention to kill. The man or woman in the street, when armed with this basic understanding of the offences, would not see any inconsistency between these verdicts. Their confidence in the administration of justice would not be shaken. Similarly, the man or woman in the street would also understand that a person who is convicted of wounding with intent to cause grievous bodily harm may subsequently be charged with murder if the victim dies. Neither of these propositions would in my view undermine public confidence.
The situation may be different if it appeared that P was being punished twice for the same conduct, but that question does not arise on this application.[27]
[27] See e.g. Pearce v The Queen (1998) 194 CLR 610.
There is a further aspect to public interest to be considered. Public interest includes a number of factors. There is a public interest in the administration of justice, namely that persons should be charged with the offences which they have committed and be punished accordingly. There is also a public interest in the right of victims of crime to have the perpetrators of crime charged with the offences committed against them. There is also a public interest in ensuring that an accused person is not treated unfairly or oppressed in the process of the administration of justice. These are all matters to be balanced and in many respects the factors previously considered for incontrovertible verdict and unfairness to the accused, are included and are required to be drawn together and considered.
In my view, it is not in the public interest in the administration of justice, that where the victim of an assault dies as a consequence of the assault, an offender should be prosecuted only for the assault. There may be cases where a death occurs many years after an assault and consideration may have to be given to other factors such as the availability of witnesses, the loss of evidence, the failures of memory and impediments to the ability of the accused to defend the charge as well as other similar factors. In this case the date between the commission of the offence, the charging of P and the death of the victim is not so great as to require such particular consideration. Further, none of these particular factors were addressed by counsel for P.
In addition there is a public interest in the need to prosecute matters expeditiously and to prevent long delays between the time of the commission of a crime and its prosecution. To some extent this raises a tension between timely prosecution on the one hand, and the need for an appropriate offence to be the subject of a charge, on the other hand. In relation to the latter, public interest is reflected by the statutory provisions, as Mr Hinton submits, in the abolition of the year and the day rule to which I have previously referred. At the same time that has been held that unreasonable delay in prosecution can amount to unfairness to an accused so as to ground a stay of proceedings.[28]
[28] See e.g. Jago v District Court of New South Wales (1989) 168 CLR 23.
In relation to the public interest as to the victims of crime, victims include not only those directly the subject of an offence such as assault, but also the family of that victim. There is now greater awareness and recognition being given to the rights and needs of victims of crime in the criminal justice system, as is reflected in various legislative provisions. Therefore victims are an aspect of public interest and have a similar interest in an offender being charged with the appropriate crime and being sentenced accordingly.
Turning now to the offender. The public clearly has an interest in not treating offenders unfairly or oppressively in the process of the administration of justice. But the public interest in securing appropriate protection for the offender does not include protecting a hope or expectation that an offender may have of not being charged with a more serious offence when additional relevant facts have arisen since the earlier conviction. To hold that a trial founds in a defendant an expectation that the defendant would not face future proceedings, would make the tension between the various public interest factors even greater. Prosecuting authorities would be required on that basis alone, to make a choice between a speedy prosecution for the lesser offence, or to draw out a proceedings in the expectation that the victim might die.
I have given careful consideration to all of these factors, including those factors personal to P such as his youth and his current eligibility for parole. However, I am not satisfied that those features should outweigh the other factors to prevent P being charged with the offence of murder following the death of his victim, and after he has been found guilty beyond reasonable doubt of stabbing that victim in the head with the intention of causing him grievous bodily harm. For these reasons I therefore refuse the application for stay of proceedings.
I also accordingly dismiss the application on all grounds. I so order.
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