R v Stone - [2005] NSWCCA 344

No judgment structure available for this case.

Reported Decision:
157 A Crim R 41
64 NSWLR 413

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Stone [2005] NSWCCA 344
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/9/05

JUDGMENT DATE:

24 October 2005

JUDGMENT OF:
Hunt AJA at 1; Hislop J at 73; Smart AJ at 74

DECISION:
Crown appeal dismissed

CATCHWORDS:
Autrefois convict - plea in bar in nature of autrefois convict- not permitted while plea of not guilty remains standing on the record - leave to withdraw plea of not guilty if plea in bar a good one - Autrefois convict - plea in bar in nature of autrefois convict- requirement that both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) must be established by the accused - Autrefois convict - plea in bar in nature of autrefois convict- judge's ruling that plea in bar had been made out when there had not be a sentence erroneous - ruling a final decision disposing of the proceedings - acquittal - no Crown appeal lies from that ruling whether pursuant to s 5F of the Criminal Appeal Act 1912 or otherwise.

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Act 1912
Criminal Code (Tasmania), Schedule 1 to Criminal Code Act 1924
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Drugs, Poisons and Controlled Substances Act 1981 (Victoria)

CASES CITED:
Burgess v Boetefur (1844) 7 Man & G 481 [135 ER 193]
Cobiac v Liddy (1969) 119 CLR 257
Della Patrona v DPP [No 2] (1995) 38 NSWLR 257
DPP v Collins [2004] VSCA 179
Gill v Walton (1991) 25 NSWLR 190
Grassby v The Queen (1989) 168 CLR 1
Green v United States 355 US 184 (1957)
Griffiths v The Queen (1977) 137 CLR 293
Kopuz v District Court of NSW (1992) 28 NSWLR 232
Maxwell v The Queen (1996) 184 CLR 501
Li Wan Quai v Christie (1906) 3 CLR 1125
Pearce v The Queen (1998) 194 CLR 610
Regina v Cheng (1999) 48 NSWLR 610
Regina v Dodd (1991) 56 A Crim R 451
Regina v Holton [2004] NSWCCA 214
Regina v King (2003) 139 A Crim R 132
Regina v Lethlean (1995) 83 A Crim R 197
Regina v Marchione (2002) 128 A Crim R 574
Regina v Tonks [1963] VR 121
Regina v Vincent [2002] NSWCCA 110
Rex v Banks [1911] 2 KB 1095
Rex v Barron [1914] 2 KB 570
Rex v Parry & Ors (1837) 7 C & P 836 [173] ER 364
Rex v Sheraton [1937] 1 KB 223
Richards v The Queen [1993] AC 217
Rogers v The Queen (1994) 181 CLR 251
S (an infant) v Recorder of Manchester [1971] AC 481
Saraswati v The Queen (1991) 172 CLR 1
The King v Kent-Newbold (1939) 62 CLR 398
The Queen v Blaby [1894] 2 QB 170
The Queen v Milnes and Green (1983) 33 SASR 211
US v Ball 163 US 662 (1896)
Walton v Gardiner (1993) 177 CLR 378
Wemyss v Hopkins (1875) LR 10 QB 378 at 381

PARTIES:
Regina (Appellant)
Robert John Stone (Respondent)

FILE NUMBER(S):
CCA 2005/1184

COUNSEL:
D C Frearson SC (Appellant)
P Hamil SC / Ms M Avenell (Respondent)

SOLICITORS:
S Kavanagh (Appellant)
SE O'Connor (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0004

LOWER COURT JUDICIAL OFFICER:
Coolahan DCJ

- 1 -

2005/1184

HUNT AJA
HISLOP J
SMART AJ
Monday 24 October 2005

REGINA v STONE

Judgment

1 HUNT AJA: The Crown has appealed against “the judgment and orders” made by Judge Coolahan in the District Court at Newcastle on 6 June 2005, whereby he upheld a plea in bar in the nature of autrefois convict entered by the respondent (Robert John Stone) to a charge of supplying a prohibited drug (methylamphetamine). The Crown appeal is brought pursuant to s 5F of the Criminal Appeal Act 1912, which permits the Crown to appeal against “an interlocutory judgment or order given or made” in proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court. Whether the present appeal falls within the terms of s 5F is discussed later (at par [58] et seq infra).

2 The circumstances in which the plea in bar came to be entered before the District Court are of considerable assistance in identifying the issue to be determined in the appeal, and it is necessary to identify those circumstances in some detail.

The background

3 According to the material tendered at the committal hearing in the Local Court, the respondent was stopped in his motor vehicle on 15 September 2004 after police observed him to be travelling at high speed. He gave the police permission to search the vehicle, saying that he had nothing to hide. In the boot of the vehicle, the police found 22.7 grams of methylamphetamine in a paste-like form, together with a set of electronic scales, a large quantity of small resealable plastic bags inside a larger plastic bag, a quantity of glucose, and several used and unused syringes and alcohol swabs. When challenged with the presence of the drugs and the accompanying paraphernalia, the respondent claimed that the methylamphetamine was glue which he used to fix the rubber on the doors and boot of his vehicle. The respondent was arrested for being in possession of a prohibited drug.

4 When taken to the police station, the respondent confessed to having been stupid, and he admitted that the paste-like substance was methylamphetamine but asserted that it was for his own use. He said that he had purchased the drugs the previous evening, that he was undergoing a methadone programme, and that he needed the methylamphetamine in order to counteract the effects of the methadone. He explained that the glucose was used to cut down the strength of the methylamphetamine. The small resealable bags were normally used for screws and bolts, he said, but also to store the methylamphetamine which he had cut for his own use. He told the police that he injected himself two or three times a day. Bottles of lawfully prescribed methadone were also found in the vehicle. The respondent said that he had cut some of the methylamphetamine after purchasing it the previous evening and that some of this mixture was in the resealable bags which were found. He acknowledged that he was aware that it was unlawful to use methylamphetamine. In the facts sheet tendered, the police stated “To the accused’s credit he was co-operative and honest with police”.

5 On 15 December, the respondent appeared before Magistrate Elliott in the Local Court at Newcastle for committal on the indictable supply charge. A summary charge of possession was also before the court. This was a “back-up” charge in the event that the respondent was not convicted on the supply charge (Criminal Procedure Act 1986, s 165). It is common ground that both charges related to the respondent’s possession of the same drugs found in the boot of his vehicle. The supply charge was based on s 29 of the Drug Misuse and Trafficking Act 1985, whereby a person in possession of not less than the traffickable quantity of the prescribed drug is deemed to have that drug in his possession for supply (and is thus guilty of the offence of supplying that drug in accordance with s 25) unless the person proves that he had the drug in his possession otherwise than for supply. The quantity of methylamphetamine in the possession of the respondent was very much in excess of the traffickable quantity.

6 The only issue raised on behalf of the respondent in relation to the committal was whether, in accordance with s 65 of the Criminal Procedure Act, the magistrate should be of the opinion that there was a reasonable prospect that a reasonable jury, properly instructed, would convict him on the charge of supply. In the event that the magistrate was not of that opinion, he was required by s 66 to discharge the respondent in relation to that offence. The magistrate was informed that the respondent intended to plead guilty to the summary possession offence in the event of his discharge.

7 In support of the respondent’s argument that he should be discharged pursuant to s 66 of the Criminal Procedure Act, it was suggested that the presence of the scales together with the drugs was explained on the basis that often scales are used by buyers of large amounts of a drug to check that they had received what they had paid for, and that people do use amphetamines to assist them in recovering from methadone. Although there was no evidence to support either of those assertions, the prosecution did not challenge them. It was pointed out on behalf of the respondent that there had already been an explanation given by him for the small resealable plastic bags, and that there was no money found in the vehicle to suggest that he had been selling anything. It was submitted on behalf of the respondent that all of the factors indicating that the methylamphetamine in his possession was for the respondent’s own use were such that a jury would entertain a reasonable doubt, so that the magistrate ought not to be of the opinion that there was a reasonable prospect that the jury would convict him. He should therefore be discharged.

8 The prosecution responded that the drugs and the other paraphernalia were found in the boot of the vehicle being driven by the respondent and not in his residence. However, the drugs had been purchased the previous evening, and the respondent had already started to cut some of the methylamphetamine with glucose and had placed it in some of the small resealable bags found in the boot. These circumstances required some explanation for the drugs and the other paraphernalia being found in the vehicle, and none had been given. The magistrate was reminded by the prosecution that, at the trial for deemed supply (and contrary to the submission on behalf of the respondent), the jury would have to be satisfied by the respondent on the balance of probabilities that the drug was for his own use.

9 The magistrate accepted that the respondent was in possession of a quantity in excess of a traffickable amount. His judgment continued:

… that would fit him for the offence, unless he comes up with some explanation which would on balance satisfy a jury that he didn’t possess it for the purpose of supply. And of course if that is the case the burden as always rests on the prosecution to negative such alternative proposition beyond a reasonable doubt .
A reasonable jury would be properly instructed that whilst there may be suspicions attaching to the possession of those indicia of supply, the prosecution bears the burden of negativing the accused’s explanation beyond a reasonable doubt .

Drug Misuse and Trafficking Act

10 The summary possession charge was then dealt with, the respondent pleaded guilty and the magistrate stood the matter over until 2 February 2005 so that a pre-sentence report could be obtained. A conviction on the summary charge was recorded on the bench sheet with the Local Court file, and a certificate of conviction was subsequently provided. No sentence has yet been imposed.

11 On 24 December, the respondent was notified that the Director of Public Prosecutions had decided to issue an ex officio indictment on the supply charge. An indictment may be presented notwithstanding that the accused has not been committed for trial (Criminal Procedure Act, s 8(2)), and notwithstanding that a magistrate has already discharged the accused in committal proceedings: Grassby v The Queen (1989) 168 CLR 1 at 13-15.

12 The ex officio indictment was presented before Judge Coolahan in the District Court at Newcastle on 10 February 2005, pursuant to s 129 of the Criminal Procedure Act. The respondent was arraigned, he pleaded not guilty and the trial was adjourned until 15 April to proceed on that date with a jury.

13 On 15 April, the respondent again appeared before Judge Coolahan and entered a plea in bar of autrefois convict, and alternatively a plea in bar in the nature of autrefois convict, both based on his conviction on the summary possession charge to which he had pleaded guilty in the Local Court. Neither of the two alternative forms of the plea contained in the document which was filed appears to be strictly correct — but, taken together, the plea is clearly one in the nature of autrefois convict (see pars [23]–[24] infra). At the same time, the respondent filed an application for a permanent stay of the supply charge also based on his conviction on the summary possession charge in the Local Court. This application was unnecessary, as the appropriate course where an issue of autrefois convict is raised is to enter a plea in bar rather than make an application for a stay of proceedings on the ground of abuse of process (see par [25] infra). Nothing turns on the application for a stay in the present appeal.

14 The parties before Judge Coolahan agreed with the judge’s proposition that the real issue he had to decide was whether, in order to sustain a plea of autrefois convict, there has to be not only a conviction but also a sentence (Transcript, 18 April 2005, p 10). The judge’s identification of the issue was correct. There was some discussion between the parties (apparently during an adjournment) as to whether the plea in bar should be entered in writing or orally, and it was agreed between counsel that the indictment would be “presented” and the respondent asked how he pleaded. As the respondent had already been arraigned on 10 February, this must have been intended and understood as being “re-presented”. When charged, the respondent replied:

I enter a plea in bar to this matter. I have previously been convicted of possession of the same drugs at the Newcastle Local Court.

autrefois

convict

15 The judge reserved his decision on the plea. He delivered his decision on 6 June, when he concluded (1) that it was sufficient for the purposes of a plea in bar of or in the nature of autrefois convict for the respondent to establish that his plea of guilty to the summary charge in the Local Court had been unequivocally accepted by the magistrate as establishing his guilt, and (2) that it was not necessary to establish that the respondent had already been sentenced. The judge took into account (a) the fact that the bench sheet in the Local Court file demonstrated that a conviction had been recorded, (b) the certificate of conviction issued by the Local Court, and (c) the fact that the magistrate had stood the proceedings over for the preparation of a pre-sentence report, as together showing unequivocally that the respondent had been convicted within the meaning ascribed to that phrase in Maxwell v The Queen (1996) 184 CLR 501 (see par [31] et seq infra). He held that “the plea of autrefois convict has been made out” (Reasons, p 8). The effect of that statement is considered later (see pars [64]–[66] infra). The ex officio indictment is endorsed:

Judgment

1) Plea in autrefois convict made out.

2) No ruling made re: stay application.

16 Whether the view of the law expressed by the judge was correct is the principal issue in the present appeal, although there is what may be described as a technical issue raised by each of the parties which has yet to be determined. On behalf of the Crown, it is submitted that the judge wrongly allowed the respondent to enter his plea in bar. On behalf of the respondent, it is submitted that the ruling made by the judge amounted to a final judgment or order determining the proceedings, and thus was not an interlocutory judgment or order from which the Crown can appeal pursuant to s 5F of the Criminal Appeal Act.

17 There was discussion during the hearing of the appeal in this Court as to whether the Director of Public Prosecutions should also submit the precise question of law arising in the appeal for this Court’s determination pursuant to s 5A(2)(a) of the Criminal Appeal Act, which permits such a procedure in relation to “any question arising at or in connection with the trial” where “a person tried on indictment has been acquitted”. An alternative appeal under s 5A would have defeated the respondent’s challenge to the jurisdiction of this Court to determine the same issue under s 5F, but this Court’s determination of the question submitted would not in any way have affected or invalidated “any verdict or decision given at the trial” (s 5A(2)(d)). The Crown declined to pursue such an appeal on the basis, it said, that there had been no acquittal following trial on indictment. That is an issue which also arises in relation to the submission made by the respondent as to this Court’s jurisdiction under s 5F. Counsel appearing for the Crown made it clear that he wished to establish both the extent of this Court’s jurisdiction under s 5F (which, if successful, would enable the respondent’s trial to proceed in the normal way) as well as the requirements for a plea of autrefois convict.

18 The submission by the Crown in support of the objection taken by it is that an accused is not entitled to plead autrefois convict as well as not guilty to an indictment whilst that plea of not guilty remains standing on the record. In Rex v Banks [1911] 2 KB 1095, the appellant was charged with the murder and (separately) with the manslaughter of the same person. He pleaded not guilty to both charges. The Crown offered no evidence on the charge of murder, and the judge directed the jury to acquit him of that charge. The appellant thereupon pleaded autrefois acquit to the charge of manslaughter whilst his plea of not guilty remained standing on the record. The judge held that there was no evidence to support the plea and he directed the jury to reject the plea in bar. The appellant was found guilty of manslaughter. He appealed against that conviction on the ground that the judge should have directed the jury to accept his plea in bar. The Court of Criminal Appeal (consisting of five judges) held that the plea in bar should not have been permitted because the plea of not guilty remained standing on the record, in accordance with what was described as “a well-established rule of criminal pleading” (at 1101). The Court dismissed the appeal against conviction, expressly without considering the merits of the plea itself.

19 That rule of criminal pleading was accepted by the High Court in The King v Kent-Newbold (1939) 62 CLR 398 — by Latham CJ at 406-407, 409-410, by Starke J at 412-413 and, obliquely, by Dixon J at 417. In that case, the respondent was charged with stealing a motor vehicle and with receiving the same motor vehicle. He pleaded not guilty to both charges. The jury acquitted him on the stealing charge but was unable to agree on the receiving charge. When retried on the receiving charge, the respondent pleaded autrefois acquit. There was no application to withdraw the previous plea of not guilty. The judge directed the jury to accept the plea of autrefois acquit. A Crown appeal to the Court of Criminal Appeal was unsuccessful. The High Court held, for differing reasons not here relevant, that the plea of autrefois acquit was not an answer to the receiving charge. The Crown appeal was allowed, a verdict was ordered to be entered for the Crown on the plea in bar and the respondent was remanded for trial on the receiving charge.

20 The judge in the present case would therefore have been in error in permitting the respondent to enter the plea in bar if the plea of not guilty still remained standing on the record. Whether that was the case is unclear. When the indictment was re-presented during the trial and the respondent entered only the plea in bar and did not repeat his plea of not guilty (see par [14] supra), it may well be that the effect of the procedure adopted was to remove the earlier plea of not guilty from the record. The double pleading point was not taken at the trial; if it had been taken, the matter could easily have been resolved. The same situation arose in The King v Kent-Newbold. In that case, Latham CJ expressed the view (at 406-407, 409-410) that, if the point had been taken at the trial, an application to withdraw the plea of not guilty to enable the plea in bar to be considered on its merits would have been successful provided that the plea was a good one. Such a course would ordinarily be followed by any judge where the point is taken at the trial.

21 It is unnecessary to determine whether the plea of not guilty remained on the record. This judgment proceeds on the same basis as Latham CJ proceeded in The King v Kent-Newbold, that this Court should determine the merits of the plea in bar — in the sense of whether it was a good one in the absence of the respondent having been sentenced — before determining whether the plea of not guilty was still standing on the record. If it was not a good plea, the state of the record in the District Court need not be examined further. If it was a good plea, then consideration would have to be given to whether it is fairly open to the Crown to rely on such an irregularity for the first time in this appeal (see The King v Kent-Newbold at 417). Alternatively, if this Court accepts that it was a good plea in the sense stated, the whole matter could be returned to the District Court to allow that Court to permit the not guilty plea to be withdrawn, with the inevitable result that the plea in bar will again be upheld.

22 Following the same approach, this judgment will leave the resolution of the respondent’s submission as to the jurisdiction of this Court to hear the Crown appeal until the merits of the appeal have been determined. I turn now to consider the principal issue in this appeal, which is whether a plea of autrefois convict requires an accused to establish not only that he had already been convicted of the charge in the new indictment, but also that he has been sentenced in relation to that conviction.

Autrefois convict

23 The common law doctrines of autrefois convict and autrefois acquit are recognised in, but unchanged by, s 156 of the Criminal Procedure Act 1986. They may be stated succinctly for present purposes as providing that no person tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence: Wemyss v Hopkins (1875) LR 10 QB 378 at 381; Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131; Rex v Barron [1914] 2 KB 570 at 574; Saraswati v The Queen (1991) 172 CLR 1 at 13; Regina v Dodd (1991) 56 A Crim R 451 at 454, 455, 457.

24 The doctrines extend to the situation where the offence charged in the second indictment is an aggravated form of that charged in the first indictment — that is, where the evidence necessary to support the second indictment would have been sufficient to procure a conviction on the first indictment — but, as a plea of autrefois convict cannot in those circumstances assert that the accused had already been convicted of that offence, the plea in bar in such a case is described as one “in the nature of” or “analogous to” autrefois convict: Wemyss v Hopkins at 381; Regina v Dodd at 455.

25 The doctrine of autrefois acquit is analogous to issue estoppel; that of autrefois convict is analogous to abuse of process: Regina v Dodd at 454. Both are embedded in the maxim res judicata pro veritatem occipitur (the decision of a court of justice is assumed to be correct). However, the appropriate course when raising either autrefois issue is to enter a plea of autrefois acquit or autrefois convict (which is dealt with as a matter of right), rather than to apply for a stay of the proceedings (which is discretionary): Regina v Dodd at 457.

26 There have been many decisions of high authority as to the meaning of the word conviction in various contexts. The word is regarded as equivocal and it is accepted that its meaning must be gleaned from the context in which it is used; it was so described as long ago as 1844: Burgess v Boetefur (1844) 7 Man & G 481 [135 ER 193] at 504 [ER at 202]; and in many cases since — for example, R v Tonks [1963] VR 121 at 127-128; Della Patrona v DPP [No 2] (1995) 38 NSWLR 257 at 263-266; Maxwell v The Queen (1996) 184 CLR 501 at 507. See also Cobiac v Liddy (1969) 119 CLR 257 at 267, 271-273. There are two relevant meanings of “conviction” in the present context: (1) a finding of guilt by verdict or by acceptance of a plea of guilty, and (2) a final disposal of the case by a finding of guilt and the passing of sentence. In the second situation, it is said that the passing of the sentence perfects the conviction.

27 The first of those meanings of conviction was accepted by the High Court in Griffiths v The Queen (1977) 137 CLR 293. In that case, the appellant pleaded guilty to a number of break enter and steal offences. In order to determine whether the appellant could “keep out of crime” (albeit under the supervision of the Probation and Parole Service) for a period of twelve months, the judge remanded him for that period, and released him without imposing sentence. The Crown appealed against the remand as amounting to a “sentence” within the meaning of s 5D of the Criminal Appeal Act (“Appeals by Crown against sentence”). One step in determining that issue was whether there had been a conviction as a result of the course the judge took. It was held (1) that the accused had been convicted as a result of the course taken by the judge, but (2) that he had not been sentenced. No Crown appeal therefore lay against sentence. The High Court stated (at 301-304, 311, 317-319, 334-335) that an accused is convicted where he is found guilty by the jury or where he pleads guilty and the judge has taken some step which indicates an acceptance of that plea as establishing his guilt.

28 The second of those meanings was accepted by the Court of Appeal in Kopuz v District Court of NSW (1992) 28 NSWLR 232. That case concerned the privative clause in s 146 of the Justices Act 1902 (“No conviction or order of a Justice …, or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court”). The Court considered whether s 146 prevented the Supreme Court from entertaining an application for prerogative relief in the nature of certiorari based on procedural unfairness in the District Court during an appeal to that Court at the stage where the applicant for prerogative relief had been convicted on the appeal but not sentenced. The Court of Appeal held (at 242-243) that, as the applicant had not been sentenced in that case, s 146 did not prevent the grant of prerogative relief.

29 There was for a long time a conflict of authority as to whether it is the second of those meanings of conviction which must be established where autrefois convict is pleaded in bar to the later charge. That conflict is discussed by the Privy Council in Richards v The Queen [1993] AC 217 at 222-226. In that case, the accused was charged with murder, and his plea of guilty of manslaughter was accepted by the prosecutor with the approval of the trial judge. The judge stood the proceedings over for evidence in mitigation to be called. The Director of Public Prosecutions then discontinued the proceedings to enable the accused to be charged with murder again. He was convicted of murder and sentenced. The Privy Council dismissed his appeal.

30 In an earlier decision, four members of the House of Lords had left the issue open, although expressing a tentative preference for the second of the two meanings identified in par [27] supra (requiring a sentence as well as a conviction): S (an infant) v Recorder of Manchester [1971] AC 481 at 490, 497, 503. Lord Upjohn, however, had concluded (at 507) that the second of those meanings was required to support a plea of autrefois convict. In Richards v The Queen, the Privy Council agreed with Lord Upjohn, identifying (at 226) the underlying rationale of autrefois convict as being to prevent duplication of punishment, citing Wemyss v Hopkins at 381. The Privy Council thought that, unless the accused had been punished following his conviction on the first charge, it would be absurd that he should be able to plead that conviction as a bar to the second (at 226). It also said (at 226-227) that, because an accused who has pleaded guilty may withdraw that plea at any time before sentence is imposed with the approval of the court, there can be no finality in the acceptance of that plea as establishing guilt until sentence has been passed.

31 In Maxwell v The Queen, the Crown accepted a plea of guilty of manslaughter to a charge of murder on the basis of diminished responsibility. During the submissions on sentence, the judge came to the view, based on the psychiatric evidence tendered, that the Crown should not have accepted the plea and he thereupon rejected it. The issue on appeal was whether the judge had the power to reject the plea, which in turn depended on whether the appellant had been convicted at that time.

32 Dawson and McHugh JJ, in a joint judgment (at 507), approached that issue by considering whether a plea in the nature of autrefois convict would be available to the appellant in answer to the charge of murder if that charge were to proceed. They held (at 507-508) that, for the purposes of a plea of autrefois convict, a verdict or plea of guilty was insufficient to constitute a conviction, as the principle behind such a plea is that a person should not be punished more than once for the same matter. After discussing some of the older authorities which had been accepted in Griffiths v The Queen, Dawson and McHugh JJ said (at 509) that there was no conviction until there had been an acceptance of the plea of guilty amounting to a determination of guilt by the court, and that such a determination occurs when the court acts so as to indicate unequivocally its acceptance of the plea of guilty. However, they immediately went on to say (at 509) that a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused as he may be permitted to change his plea to not guilty at any time before sentence. They accepted (at 509) that a matter may be disposed of otherwise than by sentence, but said that an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. They finally quoted with approval (at 509-510) the following passage from the Privy Council’s decision in Richards v The Queen (at 226-227):

autrefois convict

33 Dawson and McHugh JJ accepted (at 510) that (in the absence of sentence) no conviction stood in the way of the judge rejecting the plea in that case, but held that the judge nevertheless had no power to reject the plea in the circumstances of that case. They explained (at 511) that, as the Crown had accepted the plea of manslaughter to the charge of murder, the accused had to be treated as if he had pleaded guilty to a charge of manslaughter. They said (at 513) that a court has no power to supervise the Crown’s election to accept that plea, save to prevent an abuse of process, and (at 514) that a mere difference of opinion with the appropriateness of the Crown’s acceptance could never give rise to an abuse of process. They denied (at 514) the existence of a trial judge’s discretion to reject such a plea. Accordingly, they concluded (at 515) that the appeal should be allowed and the matter remitted to the Supreme Court for the accused to be sentenced.

34 Toohey J accepted (at 520) that, at common law, conviction encompasses a determination of guilt and does not necessarily require the imposition of a sentence. He said (at 521) that the remanding of an accused for sentence was an unequivocal indication that he had been found guilty. He held (at 522) that the Griffiths test (whether the acceptance of a plea of guilty determined guilt) applied where the issue is whether the court could reject the plea of guilty where it had been accepted by the Crown. At the same time, however, Toohey J also said (at 522) that the imposition of a sentence “may prove important where a plea of autrefois convict is in issue”, a situation which he considered to be different to that under consideration in that appeal. He quoted with approval (at 526) the Privy Council’s statement in Richards v The Queen that there can be no finality in the acceptance of a plea as establishing guilt until sentence has been passed. He held (at 522, 525) that, for the purpose of establishing whether the court had power to reject a plea of manslaughter (the issue on which he dissented), such a power existed where sentence had not been passed. He concluded (at 526) that the appeal should be dismissed.

35 Gaudron and Gummow JJ, in a joint judgment (at 529), referred to various Australian cases which considered what must be established in support of a plea of autrefois convict, and said that there had been no conclusive determination by the High Court of what was required. They said (at 530) that it appeared that the position in the United Kingdom was that there was no conviction until final adjudication by sentencing, citing Richards v The Queen, but commented that it would be unsatisfactory for submissions on sentence to have to be put before there had been a determination of guilt, particularly where the accused could be required to stand trial on a more serious charge than that to which he had pleaded guilty. They said (at 530) that such an approach was inconsistent with Griffith v The Queen, and they accepted (at 531) that the test formulated in that case (whether there had been a determination of guilt) was to be applied in determining whether the accused was convicted, by which time the judge has no power to reject a plea. They held (at 532) that no such determination had been made, and concluded (at 537) that the appeal should be allowed and the matter remitted to the Supreme Court for the accused to be sentenced.

36 So far as Maxwell v The Queen considered the requirements for a plea of autrefois convict to succeed in Australia, the result is as follows:

supra

Maxwell

autrefois convict

Richards v The Queen

supra

autrefois convict

Maxwell v The Queen

et seq

infra

Maxwell v The Queen

autrefois convict

37 The High Court referred to the doctrine of autrefois convict in two cases after the decision of the Privy Council in Richards v The Queen, but neither was concerned with the determination of criminal liability (as are the doctrines of autrefois acquit and autrefois convict). These cases are mentioned only for the sake of completeness. The first was Rogers v The Queen (1994) 181 CLR 251, in which the High Court, by majority, held (at 255, 278-280) that it would be an abuse of process if the Crown were permitted to tender records of interview taken in the same circumstances and at the same time as records of interview rejected by the trial judge in an earlier trial of the same accused for different crimes on the basis that he had not been satisfied that the admissions made by the accused in those interviews had been made voluntarily. Although there were a number of references to a plea in bar of or in the nature of autrefois convict as a species of res judicata, there is no discussion of the requirements of such a plea, and the High Court did not find it necessary to refer to the decision in Richards v The Queen.

38 The second case was Pearce v The Queen (1998) 194 CLR 610, in which the High Court considered a number of issues arising under the rule against double jeopardy, including double prosecution by trial and double punishment in sentencing. It was held (at [40], [69]) that, where two different counts based on the same facts do not give rise to a plea in bar (for which all the elements of one offence must be wholly included in the other), the rule that a person should not be twice punished for what is substantially the same act means that he must not be punished twice in relation to those elements which are common to both counts. Although Gummow J referred in passing (at [55]) to the meaning of conviction in relation to pleas in bar as having been “considered” in Maxwell v The Queen, he did not suggest that there was in that case any determination by a majority of the Court as to what conviction meant in relation to a plea of or in the nature of autrefois convict. He said (at [57]) that those pleas were not determinative of the issues in the Pearce appeal. Again, the High Court did not find it necessary to refer to the decision in Richards v The Queen. These two cases take the Crown’s argument no further in the present appeal.

39 This Court considered a plea of autrefois convict after all these decisions had been given, in Regina v Holton [2004] NSWCCA 214. Because of the different approach taken by each judge in reaching his conclusion in that case, the circumstances in which the appeal arose need some elaboration. The accused was charged with both murder and aggravated dangerous driving causing death, the latter charge pursuant to the now repealed s 52A(2) of the Crimes Act 1900 (and its associated section, s 52AA), which have been replaced by a new dangerous driving offence in the current ss 52A-52AA. The same facts were relied on by the Crown to establish both counts. The two counts were not pleaded in the alternative; if that had been the Crown’s intention, an alternative count was unnecessary as s 52AA(4) provided that the jury may find the accused guilty of the offence under s 52A in answer to an indictment charging murder only. When arraigned on the indictment, the accused pleaded not guilty to the murder count, but guilty to the s 52A count. The judge before whom he was arraigned recorded that the accused was convicted of that charge, and he was remanded for sentence.

40 The then s 52AA(6) (“Double Jeopardy”) provided:

autrefois acquit

convict

Regina v Holton

41 Prior to the trial, the trial judge refused to quash the murder count, and he vacated the conviction recorded by the judge before whom the accused had been arraigned. These rulings were challenged in the subsequent appeal against conviction for murder. Each judge in this Court delivered a separate judgment. The appeal against the vacation of the guilty plea to the dangerous driving causing death could succeed only if it would give rise to a plea of autrefois convict to the murder count.

42 Grove J recognised (at [20]–[21]) that the meaning of conviction has to be determined by reference to the context in which it appears, and (at [30]) he referred to the judgment of Dawson and McHugh JJ in Maxwell v The Queen, and in particular to their statement (at 509):

Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. … It is the disposal of the case which results in the judgment of the court embodying a determination of guilt.

autrefois convict

Maxwell

supra

autrefois convict

Maxwell v The Queen

Richards v The Queen

43 Hulme J adopted (at [70] et seq) the formulation which he saw as having been accepted in Maxwell v The Queen — that there can be no conviction on a count to which an accused has pleaded guilty until by some act on the part of the court it has indicated a determination of the question of guilt. He said (at [74]) that he did not regard the statement by Dawson and McHugh JJ (at 509, paraphrased in par [32] supra) — that a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused — as departing from their earlier statement that any act indicating the court’s unequivocal acceptance of a plea of guilty as a determination of guilt amounts to a conviction (at 509, also paraphrased in par [32] supra). He concluded (at [84]) that the acceptance of the plea by the judge who arraigned the accused indicated unequivocally his acceptance of that plea and that the accused was thereby convicted, and (at [88]) that there was nothing provisional in that acceptance. He did not refer to the conclusion Dawson and McHugh JJ reached in that case that, because there had been no sentence, there had been no conviction, and that a plea in the nature of autrefois convict therefore could not have succeeded.

44 Smart AJ (at [134]–[141]) discussed Richards v The Queen and the references to that decision in the judgments of Dawson and McHugh JJ and Gaudron and Gummow JJ in Maxwell v The Queen. He concluded (at [148]):

Maxwell

supra

Smart AJ has therefore adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen, and also of the Privy Council in Richards v The Queen.

45 The Crown relied on the decision in Regina v Holton as resolving the issue in its favour as to the requirements for a plea of autrefois convict to succeed. The respondent has submitted that Maxwell v The Queen dictates a different approach to that adopted in Holton, and that Maxwell should be interpreted as establishing that the acceptance of a plea as determining guilt was sufficient for a plea of autrefois convict to succeed. That submission, however, was based solely on the conclusion reached by Gaudron and Gummow JJ. Because of the conclusion reached by Grove J — in effect that a plea of autrefois convict would not succeed whichever approach was correct — it was unnecessary for him to identify whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen. He appears to have preferred the approach of Dawson and McHugh JJ, but his judgment is also open to the interpretation that he thought that there is no majority view in Maxwell on this issue. Similarly, Hulme J either thought that there is no majority view or, if there is one, that it was the approach of Gaudron and Gummow JJ. Smart AJ expressly adopted the approach of Dawson and McHugh JJ, but his judgment, too, is open to the interpretation that there is no majority view in Maxwell on this issue.

46 The decision in Regina v Holton does not, therefore, provide a satisfactory resolution to the issue raised in the present appeal. In the present case, it is essential to identify whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, what that majority view is. If the requirements are as stated by Gaudron and Gummow JJ in Maxwell v The Queen (see par [35] supra), they are satisfied in this case, as the magistrate remanded the respondent for sentencing, and his request for a pre-sentence report clearly demonstrated that he was accepting the respondent’s plea of guilty as a determination of his guilt. This would be so even if the magistrate had intended to dismiss the charge without proceeding to conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, as that section requires the court to find the accused guilty before dismissing the charge. On the other hand, if the requirements are as stated by Dawson and McHugh JJ (see pars [32]–[33] supra), they are not satisfied in this case.

47 Before proceeding to determine whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, to identify what that majority view is, there is one further decision to which reference should be made. The decision in DPP v Collins [2004] VSCA 179 was given shortly after the decision in Regina v Holton. Collins was charged with, inter alia, trafficking in a drug of dependence (methylamphetamine) and possessing the same drug. The definition of “traffick” in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Victoria) includes, in relation to a drug of dependence, the possession of that drug for sale. When arraigned, Collins pleaded not guilty to the trafficking count, but guilty to the possession count. He went to trial on the trafficking count and was found guilty by the jury. He was sentenced on the trafficking count to a term of imprisonment and fined. On the possession charge, the judge adjourned the proceedings “without conviction” for twelve months, upon Collins entering into a bond. The Director of Public Prosecutions appealed against the sentence imposed on the trafficking count, and at the hearing of the appeal counsel for Collins raised for the first time the validity of the jury’s verdict because, it was asserted, Collins had already been convicted on the possession count so that the prosecution of the trafficking count was barred (see [12]).

48 The Court of Appeal accepted (at [16]) that a conviction on that count could operate as a bar to the prosecution of the trafficking count (in accordance with Regina v Dodd), provided that the conviction on the possession count was recorded before the conviction on the trafficking count was recorded. It appears from the judgment of Winneke P that the judge indicated during the sentencing proceedings that he had not accepted the plea by Collins of guilty to the possession count as evidence of his guilt on that count, notwithstanding that by the time the sentencing took place Collins had already been convicted of trafficking based on that very possession. The Court of Appeal said (at [22]) that the course adopted by the judge in adjourning the sentencing on the possession count did not precede the conviction on the trafficking count, but in any event — following the approach of Dawson and McHugh JJ in Maxwell v The Queen and the decision of the Privy Council in Richards v The Queen — it held that finality was essential for a plea of autrefois convict and that there could be no finality until sentence was passed. No sentence had been passed on the possession count. The Court said (at [23]) that the course followed in relation to that count did not impact on the verdict of guilty of trafficking (and thus the conviction), nor did it nullify the verdict or the conviction on that count. The Court of Appeal did make it clear (at [24]–[25]) that the procedure followed by the trial judge was erroneous, and that in such circumstances the plea of guilty to the possession count should have remained on the file to be acted on only in the event that Collins had not been convicted on the trafficking count. Such is the procedure adopted in New South Wales.

49 The Victorian Court of Appeal in DPP v Collins therefore adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen, and also of the Privy Council in Richards v The Queen. They did not refer to any possible uncertainty as to whether the approach of Dawson and McHugh JJ constituted the majority view in Maxwell v The Queen. The only reference to the judgments of Gaudron and Gummow JJ or of Toohey J is to be found in the brief judgment of Ormiston JA (at [30]), who (with Warren CJ) agreed with the judgment of Winneke P, when he was dealing with a different issue in that appeal. That judgment does not therefore assist in determining whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, what that majority view is. I now undertake that task.

50 There are two diametrically opposed views expressed in the joint judgments in Maxwell v The Queen. Dawson and McHugh JJ were of the view that an accused must establish not only that he has already been convicted of the charge, but also that he has been sentenced in relation to that conviction. That view was stated as to the meaning of conviction in the context of a plea of autrefois convict, and it is thus directly relevant to the issue which arises in the present appeal. This conclusion as to the meaning of conviction in that context was, however, strictly unnecessary for their determination that the appeal should be allowed. Their decision that in the absence of a sentence there had not been a conviction in that case (so that a plea of autrefois convict would not have succeeded) was accompanied by rulings that (1) in any event, the judge in that case had no power to reject the manslaughter plea in the absence of some abuse of process, and (2) that a difference of opinion as to whether it was appropriate for the Crown to have accepted the plea did not constitute such an abuse. Those two rulings were sufficient for the appeal to have been upheld, without reference to the availability of a plea of autrefois convict. They did not consider whether there was any difference in the meaning of conviction in the context of whether a plea of guilty may be rejected by a judge in the absence of some abuse of process.

51 The contrary view of Gaudron and Gummow JJ was that it is sufficient for an accused to establish that the acceptance of the plea of guilty to the earlier charge determined his guilt. That conclusion was necessary for their conclusion that the appeal should be allowed. It was stated in relation to the meaning of conviction in the context of whether a plea of guilty to a charge may be rejected by a judge in the absence of some abuse of process. They rejected the requirement of a sentence as well as a conviction in that context and they commented that not only was it inconsistent with the decision in Griffith v The Queen, but — depending on whether they saw the two contexts as being the same (which is unclear) — their criticisms of the decision of the Privy Council in Richards v The Queen may be interpreted as rejecting it in the context of autrefois convict as well. Their reasoning did not require them to consider whether a plea of autrefois convict would have been available to the appellant in answer to the charge of murder if that charge were to proceed.

52 Toohey J agreed with Gaudron and Gummow JJ as to the meaning of conviction in the context of whether a plea of guilty to a charge may be rejected by a judge in the absence of some abuse of process. In discussing how the meaning of the word conviction differs according to the context in which it is used, Toohey J said (at 522) that the absence of sentence “may prove important when a plea of autrefois convict is in issue but not when the question is whether a person has been ‘convicted on indictment’ for the purposes of an appeal under s 5 of the Criminal Appeal Act.” That was the issue in Maxwell.

53 One possible interpretation of the decision in Maxwell v The Queen is that it demonstrates an acceptance by a majority of the High Court (Dawson, Toohey and McHugh JJ) that the decision by the Privy Council in Richards v The Queen correctly stated that there must be both a conviction and a sentence before a plea of autrefois convict can succeed. The fact that none of these three judges necessarily relied on the views which were (or which may have been) expressed to this effect as the basis of his decision in that case does not prevent such an opinion having great weight, even though it is obiter. The problem with such an interpretation, however, is that the apparent acceptance by Toohey J of the need for a sentence as well as a conviction was introduced by the cautionary word “may” — that the absence of a sentence “may prove to be important” when considering the meaning of conviction in the context of a plea of autrefois convict.

54 I would prefer to say that Maxwell v The Queen does not provide a sufficiently specific acceptance of Richards v The Queen by a majority of the Court so as to apply that decision to the plea in bar in the nature of autrefois convict in the present case. A more definitive statement by the High Court is required before it can safely be said that that Court has held that there must be both conviction and sentence before such a plea can succeed.

55 At the intermediate appellant level, however, there is the apparent adoption by Grove J and the express adoption by Smart AJ in Regina v Holton — together with the unanimous adoption by the Victorian Court of Appeal in DPP v Collins — of the approach of Dawson and McHugh JJ in Maxwell v The Queen and of the decision of the Privy Council in Richards v The Queen.

56 The decision in Richards v The Queen and those judgments which have adopted that approach are persuasive. It has been held ever since 1875 (in Wemyss v Hopkins) that the underlying rationale of the plea of autrefois convict is to prevent duplication of punishment. In that case, all three judges of the Court of Queen’s Bench referred (at 381-382) to the requirement that the plea can succeed only if the accused has already been punished. Except for the erroneous departure from orthodoxy perpetrated by Rex v Sheraton [1937] 1 KB 223 and the cases which followed that decision for over fifty years (see Richards v The Queen at 224-225), there is no reasoned authority which has permitted a plea of autrefois convict unless the accused was not only convicted but also sentenced. The context of avoiding double punishment in which the meaning of conviction has to be determined for the purposes of a plea of autrefois convict is clearly different from the contexts of the power of a judge to reject a plea of guilty, of sentencing on different charges relating to substantially the same act or of appeals against sentence.

57 In my opinion, the word conviction as used in the context of autrefois convict requires both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) to be established by the accused. The definitions are those of Lord Reid in S (an infant) v Recorder of Manchester (at 489). In the absence of sentence, the plea in bar must fail. In these circumstances, the plea entered by the respondent in the present case was not a good plea, and there is no need to consider any further the state of the record in the District Court to which the Crown had objected for the first time in this appeal (see pars [18]–[21] supra).

Jurisdiction of this Court to hear the Crown appeal

58 Section 5F of the Criminal Appeal Act provides, so far as is here relevant:

59 In Regina v Lethlean (1995) 83 A Crim R 197, this Court held (at 204-205) that neither a judge’s direction to the jury to acquit nor a refusal to give such a direction would be a judgment or order within the meaning of s 5F. In that case, the trial was by a judge without a jury, and the judge had ruled that there was a case to answer. The accused sought leave to appeal. Had the application for a ruling that there was no case to answer been successful, it would have led to an acquittal, but it was held (at 206) that the judge’s ruling that there was a case to answer was a ruling on a question of law and not a judgment or order.

60 On the other hand, an appeal from either the grant or the refusal to grant a permanent stay — made on the basis that, because the Crown case was foredoomed to fail, the proceedings were an abuse of process — does fall within s 5F as an interlocutory order: Regina v Marchione (2002) 128 A Crim R 574 at 577. A plea of either autrefois acquit or autrefois convict nevertheless remains the appropriate means of raising either autrefois issue, rather than an application for a stay of proceedings (see par [25] supra).

61 In Regina v Cheng (1999) 48 NSWLR 610, the situation was the reverse of that in Lethlean. The Crown appealed against a ruling by the trial judge that there was no case to answer, arguing that the decision of the trial judge was final whereas that in Lethlean was not, as the trial had then proceeded. It was nevertheless held (at 621-622) that, despite the generality of its terms, s 5F could not, without clear and unambiguous words, be interpreted as conferring on the prosecution a right of appeal against an acquittal, and that it did not extend to a direction by the trial judge to a jury to acquit.

62 In Regina v King (2003) 139 A Crim R 132, the order from which the Crown appeal was brought was one for a permanent stay of the proceedings, granted by the trial judge on the basis of her ruling that the Crown case could not succeed. It was argued by the respondent that an order for a permanent stay was as close to a verdict of acquittal as the decision to direct the jury to acquit, and that it was therefore a final judgment or order. That argument was rejected (at 136) on the basis that a decision to direct the jury to acquit inevitably leads to an acquittal, whereas a permanent stay could never do so under any circumstances. There was therefore no infringement of the principle that the Crown does not have a right of appeal from an acquittal. The order for a permanent stay was therefore interlocutory in nature, so that appeal lay within s 5F.

63 Before considering the application of those cases to the present case, it is necessary to consider a number of procedural issues which are applicable to a plea of autrefois convict. This has become necessary because of the Crown’s argument in the present appeal that the judge’s ruling was necessarily interlocutory in nature because, so the Crown submitted, it was determined by the judge before the trial had commenced.

64 Prior to the Criminal Procedure Act, a plea of autrefois convict was determined by a jury especially empanelled for that purpose, and before any trial of the guilt of the accused: The Queen v Milnes and Green (1983) 33 SASR 211 at 219. The issue was whether the plea in bar had been made out: Ibid at 219. If the plea had not been made out, the accused was required to plead over — that is, he was obliged to plead guilty or not guilty of the crime charged (preferably before a different jury): Ibid at 220; Hale, The History of the Pleas of the Crown (vol 2), 1736, at 392. If the plea in bar had been made out, there was no trial of the guilt of the accused: The Queen v Milnes and Green at 220. The form of judgment when the plea of autrefois convict was successful, according to Lord Hale (at 392), was quod eat sine die (that he may go without day), the effect of which is that the accused had been discharged: Archbold: Criminal Pleading, Evidence and Practice (35th edn, 1962), at par [449].

65 Section 156(2) of the Criminal Procedure Act now directs a plea of autrefois convict or autrefois acquit to be determined by “the court without the presence of a jury” — that is, by the trial judge. That section does not, however, alter either the nature or the effect of a ruling that a plea in bar has been made out as discussed in the last paragraph. Was the ruling made by the judge in the present case nevertheless necessarily interlocutory in nature because (as the Crown has argued, see par [63] supra) it was determined by the judge before the trial had commenced? That argument is rejected. Section 130(2) of the Criminal Procedure Act gives jurisdiction to the District Court with respect to the conduct of proceedings as soon as the indictment has been presented in that Court and to make any orders that may be made “for the purposes of the trial in the absence of a jury … before a jury is empanelled for the trial”. Section 130(3) provides:

(a) the proceedings are part of the trial of the accused person, and

66 In the present case, moreover, the effect of the ruling by the judge that the plea in the nature of autrefois convict had been made out must be the same as that of a jury’s verdict on such a plea. In accordance with the statement in the old edition in Archbold already quoted (see par [64] supra), the verdict has the effect of discharging the accused, just as does a verdict of acquittal. An acquittal is a final order: Regina v Vincent [2002] NSWCCA 110 at [20]. In that case, the accused was charged with maliciously damaging a dwelling by means of fire and, alternatively, with malicious damage of the same dwelling. The judge at the first trial directed the jury to acquit the accused of the alternative count on the basis that there was no evidence that the accused had caused damage to that dwelling otherwise than by fire. The jury were unable to agree in relation to the first count. The accused was put on trial again on the first count, and he applied for a permanent stay, which the judge in the second trial treated by consent as an application to enter a plea of autrefois acquit or a plea in the nature of autrefois acquit. The judge upheld the plea, and he then discharged the accused. On appeal, the Crown correctly accepted the judge’s decision as amounting to a verdict of acquittal. This Court held (at [20]) that there can be no appeal from such an acquittal without statutory warrant, and that s 5F did not provide that warrant.

67 In the present case, the judge is not recorded as having formally discharged the respondent following the ruling that the plea in bar was upheld, but this Court was informed that he was permitted to leave. As stated by the editors of Archbold (see the preceding paragraph), the judge’s ruling (amounting to an acquittal) operated by itself to discharge the respondent on the indictment.

68 In Regina v Cheng, this Court made it clear (at [16]–[18]) that the terms of s 5F cannot be stretched to permit a Crown appeal where an accused has been wrongly acquitted as a result of an erroneous decision of the judge that there was no case to answer, notwithstanding that that decision may be taken as disappointing community expectations as to the conduct of the criminal justice system. It said (at [20]) that the position was no different to the community’s disappointment at the verdicts of acquittal delivered by juries.

69 The proposition that the Crown cannot appeal from a verdict of acquittal is of long standing, and it reflects a fundamental principle which underlies the whole criminal justice system: Regina v Cheng at [18]. In Green v United States 355 US 184 (1957), an appeal before the US Supreme Court concerned with the Fifth Amendment (no person shall “be subject for the same offence to be twice put in jeopardy of life and limb”), Black J, giving the Opinion of the Court (at 187-188 and after quoting Blackstone’s Commentaries at 4:335), explained the rationale of the autrefois principle in this way:

The first paragraph of that passage was quoted with approval in the majority judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 397), and by Kirby P in the Court of Appeal from which that appeal had been taken: Gill v Walton (1991) 25 NSWLR 190 at 207. The quotation in the second paragraph is from United States v Ball 163 US 662 (1896), a unanimous decision of the Supreme Court (at 671):

In that context, it is clear that the quoted phrase in the second paragraph of the passage from Green v United States was not intended to represent the law of England. It does not represent the law of Australia. The remainder of the passage from Green v United States remains very relevant to Australian law.

70 The fundamental principle stated by Black J in Green v United States applies just as strongly to the verdict of a jury in wrongly upholding a plea in bar — and hence also to the determination by a judge pursuant to s 156(2) of the Criminal Procedure Act that a plea in bar has been made out. In Rex v Parry & Ors (1837) 7 C & P 836 [173 ER 364], the accused were tried and acquitted of raping the complainant on a particular date. They were then tried on a second indictment with the same offence of rape on the same complainant on the same day. The evidence in support of the second indictment demonstrated that it was a different (and subsequent) rape. The accused pleaded autrefois acquit, and the jury found that the plea had been made out. The trial judge reserved a Crown case for the consideration of the judges as to whether there was any evidence to justify and support the verdict, and (if not) whether the verdict was final and conclusive and operated as a bar to any further proceedings on the second indictment. It was accepted (at 844 [ER at 367]) that the two indictments on their face were for two offences alleged to have been committed at different times, but the judges nevertheless advised (at 846 [ER at 368]) that the verdict of the jury was final.

Conclusion

71 The judge’s ruling in the present case holding that the plea in the nature of autrefois convict had been made out — although erroneous — was a final decision which disposed of the proceedings against the respondent. It amounted to an acquittal. No Crown appeal lies from that ruling whether pursuant to s 5F of the Criminal Appeal Act or otherwise.

72 I would therefore dismiss the Crown appeal.

73 HISLOP J: I agree with Hunt AJA.

74 SMART AJ: I have had the advantage of reading the judgment of Hunt AJA in which the background is set out and the authorities comprehensively reviewed.

75 This application raises three issues:

1. Was the plea of not guilty still extant when the plea of autrefois convict was entered, and, if so, was the judge entitled to accept and rule on the plea in bar of autrefois convict.

2. Was the plea in bar a good plea.

Criminal Appeal Act 1912

The pleading point

76 The affidavit of 15 April 2005 of Mr Stone's solicitor, Esther Alvares, recounting the history of the proceedings, including that the DPP decided to prefer an ex officio indictment in respect of the supply matter the subject of the discharge at Newcastle Local Court on 15 December 2004 continued:

"11. On 11 February 2005 the DPP presented an indictment in this matter in the District Court sitting at Newcastle the accused was arraigned and pleaded not guilty."

77 That plea was entered before Coolahan DCJ and endorsed on the indictment. It seems that the trial was to commence on 18 April 2005.

78 About 15 April 2005 a Special Plea was filed on behalf of Mr Stone pleading in bar to the indictment by way of autrefois convict, his "conviction" on 15 December 2004 at the Newcastle Local Court of possession of the same drug as specified in the indictment and on the same day. Alternatively, Mr Stone entered a plea in the nature of a plea in bar to the indictment. The District Court Rules did not provide for the filing of such a Special Plea, but it was deemed to be prudent by Mr Stone's advisors. It alerted the Court and the Crown.

79 The debate on the plea in bar commenced before Judge Coolahan on 18 April 2005 and continued on 19 April 2005. The transcript reveals that the judge and counsel were anxious to follow the correct procedure. Towards the end of the debate the judge said that he would formally take a pre-emptory plea and then stand the matter over for judgment.

80 After discussion between counsel, counsel for Mr Stone said: "I understand my friend would present the indictment in the matter, your Honour's associate would ask how he pleads. I propose if I'm allowed to assist the accused in entering a special plea." The judge replied: "Yes."

81 The transcript next records:

… did supply a prohibited drug namely methylamphetamine.

Accused: I enter a plea in bar to this matter. I have previously been convicted of possession of the same drugs at the Newcastle Local Court."

82 Section 130(1) of the Criminal Procedure Act 1986 provides that the District Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned and may make orders for the purposes of the trial. The proceedings to consider making such orders are part of the trial.

83 At p3 of the transcript of 18 April 2005 counsel for Mr Stone referred to the special plea in bar which had been filed. This had been preceded by counsel explaining to the judge that Mr Stone had a plea in bar of autrefois convict, or in the nature of autrefois convict. Counsel continued:

"That amounts to a special pleading and accordingly … the accused doesn't plead at the present moment to the indictment. He pleads over the indictment and would plead, if the indictment was read to him, he had previously been convicted … and pleads autrefois convict."

84 At the hearing on 18 and 19 April 2005 it seems to have been overlooked that Mr Stone had earlier pleaded not guilty and that that was the plea endorsed on the indictment. Perhaps no one was aware that an accused was not entitled to plead autrefois convict when there was a plea of not guilty on the record.

85 In R v Banks [1911] 2 KB 1095, Phillimore J pointed out at 1098 during argument that the accused "ought to have pleaded autrefois acquit first and then pleaded over to the felony." The same position exists as to autrefois convict. At 1101 Lord Alverstone CJ in delivering the judgment of the Court of Criminal Appeal (comprising five Justices) said:

"… according to well-established rules of criminal pleading, a defendant, having pleaded not guilty to an indictment, is not entitled while that plea is standing, to have a plea of autrefois acquit put upon the record."

86 I was not aware of that "well-established rule" until this case. There is no reference in the transcript to this rule nor to withdrawing the plea of not guilty.

87 In my opinion the plea of not guilty was still upon the record when the special plea in bar of autrefois convict was entered. Technically, the plea of autrefois convict should not have been considered. In R v Banks at 1100-1101 the Court held that in that case the plea of autrefois acquit was a point of the highest technicality and could properly be met by a technical answer. Apart from the pleading point the plea of autrefois acquit had much substance and was probably correct. However, because of the technical answer the accused's (or the prisoner's) appeal was dismissed.

88 The correctness of the pleading principle in R v Banks was acknowledged in The King v Kent-Newbold (1939) 62 CLR 398 by Latham CJ at 406, Starke J at 412. Dixon J referred to the principle at 417. Latham CJ at 406 pointed out that except under express statutory provisions it is not permissible to join any other plea with a plea of not guilty. In Kent-Newbold the primary judge accepted a plea of autrefois acquit when the prior plea of not guilty had not been withdrawn. This was regarded as erroneous by the three Justices.

89 Latham CJ declined to deal with the case upon the basis proposed by the Acting Chief Justice of Tasmania, namely, that it would be idle to allow the appeal on the ground that there could not be at the same time a plea of not guilty and a plea of autrefois acquit and that so far as that ground was concerned the court should exercise the power conferred upon it by s 402(2) of the Criminal Code (Tas) and dismiss the appeal. Latham CJ thought it was by no means certain that in the circumstances of that case, a judge would as a matter of course accede to the application to withdraw the plea of not guilty. Latham CJ thought that the accused's plea was based upon a very technical point and adopted the approach in R v Banks [1911] 2 KB at 1101, "the point being an extremely technical one may properly be met by a technical answer." Latham CJ would not have allowed the accused to withdraw his plea of not guilty in order to plead autrefois acquit.

90 At 409-410 Latham CJ took the view that if the proposed plea in bar of autrefois convict was good there was every reason for allowing a withdrawal of the plea of not guilty. (This assumes that the plea in bar does not rely upon an entirely technical argument). After making those observations Latham CJ proceeded to consider the position in the circumstances of that case of the plea of autrefois acquit, with particular regard to the statutory provisions. He thought that the judgment of acquittal should be set aside.

91 Starke J recorded that the Solicitor-General for Tasmania did not abandon his objection that the pleas of autrefois acquit and not guilty could not be pleaded together, but desired the judgment of the Court upon the larger question whether the accused's plea of autrefois acquit was a good plea. The indictment contained several counts. Starke J thought that the case depended upon the true construction of the indictment and as the accused was never in jeopardy under count one of the crime charged in count three, the plea of autrefois acquit was a bad plea.

92 At 417 Dixon J remarked:

Tasmanian Code]

93 The approach of Dixon J is attractive but he was in the minority on that particular point. However Kent-Newbold was a different case to the present one.

94 In this case the argument whether the plea of autrefois convict is good is finely balanced. Much depends on which of two differing views in the High Court in Maxwell v The Queen (1996) 184 CLR 507 is preferred and whether, for a plea in bar of autrefois convict, the accused has to be sentenced. That issue is ultimately one for the High Court and it would be incorrect to preclude an accused from raising that issue. It is not a technicality and leave would be granted to withdraw the plea of not guilty and enter the plea in bar.

95 Such an approach is consistent with that of Dixon J in Kent-Newbold and also that foreshadowed by Latham CJ at 409-410, that leave would be granted to withdraw the plea of not guilty and allow the special plea in bar of autrefois convict where the proposed plea appears to be a good one, is not highly technical and not devoid of merit. I would apply the same principle where, as here, the proposed plea in bar is fairly arguable, is not highly technical and has substantial merit.

96 In these circumstances it would be incorrect to dispose of this case upon the pleading point and I decline to do so.

Was the plea in bar good?

97 The answer to this question depends upon the answer to the question, what is a conviction for the purposes of a plea in bar of autrefois convict?

98 In S v Recorder of Manchester 1971 AC 481 at 489 Lord Reid pointed out " 'conviction' is commonly used with two different meanings", namely "final disposal of a case" and "a finding of guilt." He (and three other Law Lords) in that case thought that it was unnecessary to enter upon the technicalities of autrefois convict. However, Lord Upjohn at 506 said:

Hale's Pleas of the Crown

(1778) Vol 2 ch 32, p251."

99 Over a lengthy period it was recognised that the meaning to be ascribed to the word "conviction" often depended upon the language used in the particular statute under consideration: The Queen v Blaby [1894] 2 QB 170 at 172.

100 In Maxwell v The Queen (1995) 184 CLR 501 at 507 Dawson and McHugh JJ remarked that the answer to the question of what amounts to a conviction rather depends upon the context in which it is asked. That question admits of no single comprehensive answer. They referred back to the statement of Tindal CJ in 1844 in Burgess v Boetefeur 135 ER 193 at 202 that "the word 'conviction' is undoubtedly verbum aequivocum."

101 Dawson and McHugh held at 507-508:

"The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter."

102 Dawson and McHugh JJ relied on Wemyss v Hopkins (1875) LR 10 QB 378 at 381. At 509 they also relied on the decision of the Privy Council in Richards v The Queen 1993 AC 217 at 226 where it was stated that "the underlying rationale of autrefois convict was to prevent duplication of punishment and that, for the application of the doctrine, finality of adjudication is essential". At 510 Dawson and McHugh JJ quoted this passage from Richards at 226-227:

"The need for finality of adjudication by the court whose decision is relied on to found a plea of autrefois convict is even more clearly apparent where a defendant has pleaded guilty. Not only may the defendant be permitted, in the discretion of the court, to change that plea at any time before sentence, but, when a plea of guilty to a lesser offence than that charged has initially been accepted by the prosecutor with the approval of the court, there can, it appears to their Lordships, be no finality in that 'acceptance' until sentence is passed."

103 In Maxwell the trial judge declined to accept a plea of guilty to manslaughter to a charge of murder even though the Crown was prepared to accept the plea of manslaughter. All the justices were agreed that a plea of guilty was insufficient to amount to a conviction and the question arose as to what amounted to a conviction. At 530 Gaudron and Gummow JJ accepted that the position in the United Kingdom was that there was no conviction until final adjudication by sentence. They regarded that approach as not satisfactory "if submissions have to be put to the Court with respect to sentence before there had been a determination of guilt" and particularly "if the accused can be required to stand trial on a more serious charge than that to which he or she has pleaded guilty." Gaudron and Gummow JJ, at 530, also thought that the approach which would make conviction depend on sentence was inconsistent with the separate judgments of Barwick CJ, Jacobs and Aickin JJ in Griffiths v The Queen (1977) 137 CLR 293. Gaudron and Gummow JJ at 531 concluded:

"… conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question."

104 On the facts in Maxwell, Gaudron and Gummow JJ concluded that on the test which they proposed there had been no determination of guilt and thus Maxwell had not been convicted of manslaughter. Dawson and McHugh JJ did not accept that this was the test or the correct approach.

105 I do not regard the remarks of Dawson and McHugh JJ referring to the position of autrefois convict as obiter dicta. It was an important factor to be considered in their formulation of what they regarded as the correct test.. The fact that two other justices formulated a less demanding test of what constituted a conviction which was not met does not mean that the remarks of Dawson and McHugh JJ as to what constituted the correct test were obiter.

106 Toohey J at 519 remarked:

"The meaning of 'conviction'; generally depends determining the sense in which it used in the Statute under consideration."

107 At 520 Toohey J cautioned against a wide ranging inquiry and thought it best to focus upon the situation which had arisen in that case After referring to a number of Australian authorities he wrote:

"Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination."

108 Toohey J, along with the other justices noted that an accused with the leave of the Court may change his plea of guilty to one of not guilty at any time before the case is finally disposed of by sentence or otherwise. The change of plea sets aside the conviction. Toohey J at 521 referred to an observation of Gleeson CJ in the Court of Criminal Appeal that Maxwell had not been formally convicted of manslaughter, emphasising the word "formally". At 522 Toohey J continued:

Criminal Appeal Act

109 Toohey J did not further elaborate on the question of "conviction". He then discussed the issue whether the Court was entitled to reject the plea of manslaughter. Toohey J concluded that there were circumstances in which the Court was empowered to reject a plea of guilty where the consequence is to acquit the accused of a more serious charge on which he or she was indicted and that the Court's power to act in the interests of justice permits it to go as far as that. Toohey J alone favoured the dismissal of the appeal.

110 It is not easy to follow all the steps in the reasoning of Toohey J but, as I understand his judgment he was of the view that in the case where an accused on an indictment for murder pleads guilty to manslaughter, the Crown accepts that plea, the judge does not determine the guilt of the accused to manslaughter, rejects that plea and does not proceed to sentence, there has been no conviction.. The position is otherwise if the judge has determined that guilt of the accused and is proceeding to sentence.

111 The judgment of Dawson and McHugh JJ on the one hand and that of Gaudron and Gummow JJ, raise questions of some difficulty.

112 One of the difficulties which weighed heavily with Dawson and McHugh was the ability of an accused to change his plea to not guilty up to the point at which he or she was sentenced.

113 In S v Recorder of Manchester, supra, Lord Reid sought to overcome this difficulty by treating the plea as provisional up until the imposition of the actual sentence. Dawson and McHugh JJ commented:

"Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter."

114 Assume an accused who has pleaded guilty to a lesser offence than that charged in the indictment, the plea of guilty to the lesser offence is accepted by the Crown and the judge and he is "convicted" but not sentenced. He is subsequently charged with a more serious offence covering the same facts and his plea in bar of autrefois convict or an analogous plea is upheld. He then comes to be sentenced for the lesser offence and seeks to change his plea before being sentenced for the lesser offence. Unless there were unusual circumstances it would be expected that leave to withdraw the plea of guilty would not be given. But what would be the position if leave was given? Perhaps this illustration is fanciful and envisages a situation which is remote from what is likely to happen.

115 One of the difficulties which weighed heavily with Gaudron and Gummow JJ arises where the Crown has accepted the plea of guilty to the lesser offence, no determination of guilt has been made and the judge embarks upon the sentencing exercise.

116 The accused may be in a quandary about giving evidence. If he is cross-examined as to the circumstances of the offence he may make admissions which strongly suggest, if not prove, his guilt of the offence originally charged or some more serious offence. He may not be prepared to run the risks involved in giving evidence, especially if he fears that he could have to stand trial on a more serious charge than that to which he or she had pleaded. If, a conviction occurs when there is a determination of guilt, the accused is from that point of time protected by being able to raise a plea in bar of autrefois convict and can give evidence on his sentencing hearing without the fear mentioned. Cross-examination suggesting that the accused had committed a more serious offence than that to which he has pleaded guilty would normally not be allowed, if a determination of guilt had been made and that constitutes a conviction. It may be virtually essential on a sentencing hearing for an accused to give evidence to establish the primary facts necessary to allow convincing expert evidence to be given, for example, psychiatric or psychological evidence or drug rehabilitation evidence.

117 In Maxwell at 515, in an endeavour to overcome any prejudice that may affect an accused, it was pointed out that before the prosecution may withdraw its acceptance of a plea of guilty to a lesser offence it must obtain the leave of the Court. Dawson and McHugh JJ continued:

"Obviously that is in the interests of justice because an accused may, in reliance upon the prosecution's acceptance of his plea have taken a course which would prejudice him – by making admissions, for example – should the acceptance be withdrawn. In those circumstances leave should be refused."

118 Toohey J highlighted the importance of ascertaining the purpose for which it was sought to ascertain the meaning of the word conviction.

119 There is a great deal to be urged in favour of each of the differing approaches of Dawson and McHugh JJ on the one hand, and Gaudron and Gummow on the other. On balance I prefer the approach of Dawson and McHugh JJ. While I acknowledge the strength of the considerations which led to the conclusions of Gaudron and Gummow JJ I think that except possibly on relatively rare occasions there will be no cross-examination suggesting the commission of a more serious offence than that charged, and if an attempt is made to so cross-examine it will be disallowed. One exception which comes to mind is where an accused endeavours to suggest that he bears minimal responsibility.

120 In R v Holton [2004] NSWCCA 214 I adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen, the Privy Council in Richards. I adhere to that adoption. I am also in agreement with the approach of Lord Upjohn in S v Recorder of Manchester, quoted earlier.

121 Particularly in the case of a plea in bar of autrefois convict, where there is considerable emphasis upon the avoidance of double punishment, the word "conviction" bears the meaning of a determination of guilt followed by sentence. There was no sentence in the present case. The plea in bar of autrefois convict should have been rejected.

Jurisdiction of this Court to hear Crown Appeal

.

122 I agree with Hunt AJA that this Court has no jurisdiction under s 5F of the Criminal Appeal Act to entertain an appeal against the judge's decision to uphold the plea of autrefois convict. That was not an interlocutory judgment or order, but a final decision. It allowed Mr Stone to go at large and precluded any trial taking place on the indictment which had been presented. To all intents and purposes it was an acquittal of the more serious offence of supplying a prohibited drug. In Maxwell at 521 Toohey J pointed out that the absence of a formal record is not determinative.

123 There is a long and correct tradition in this State of this Court not entertaining appeals against acquittals whether by jury verdict or direction of the judge. Section 5A(2)(a) enables the Attorney General or the Director of Public Prosecutions to submit a question of law for determination by this Court at any time after the conclusion of a trial on indictment where the accused has been acquitted. It does not enable this Court to set aside the acquittal.

124 The Crown Appeal should be dismissed or struck out for want of jurisdiction.

125 THE COURT: The Crown appeal is dismissed.

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Citations

R v Stone [2005] NSWCCA 344

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Barbara Filipowski v Gyeong Ryong [1998] NSWLEC 24

Cases Citing This Decision

40

Pearce v The Queen [1998] HCATrans 22

Francisco Javier Gomez v The Queen; the Queen v Francisco Javier Gomez [2006] ACTCA 18

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20

Statutory Material Cited

6

DPP v Collins [2004] VSCA 179

R v Holton [2004] NSWCCA 214

R v Vincent [2002] NSWCCA 110

CITATION:	Regina v Stone [2005] NSWCCA 344 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/9/05
JUDGMENT DATE:	24 October 2005
JUDGMENT OF:	Hunt AJA at 1; Hislop J at 73; Smart AJ at 74
DECISION:	Crown appeal dismissed

CATCHWORDS:	Autrefois convict - plea in bar in nature of autrefois convict- not permitted while plea of not guilty remains standing on the record - leave to withdraw plea of not guilty if plea in bar a good one - Autrefois convict - plea in bar in nature of autrefois convict- requirement that both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) must be established by the accused - Autrefois convict - plea in bar in nature of autrefois convict- judge's ruling that plea in bar had been made out when there had not be a sentence erroneous - ruling a final decision disposing of the proceedings - acquittal - no Crown appeal lies from that ruling whether pursuant to s 5F of the Criminal Appeal Act 1912 or otherwise.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Code (Tasmania), Schedule 1 to Criminal Code Act 1924 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Drugs, Poisons and Controlled Substances Act 1981 (Victoria)
CASES CITED:	Burgess v Boetefur (1844) 7 Man & G 481 [135 ER 193] Cobiac v Liddy (1969) 119 CLR 257 Della Patrona v DPP [No 2] (1995) 38 NSWLR 257 DPP v Collins [2004] VSCA 179 Gill v Walton (1991) 25 NSWLR 190 Grassby v The Queen (1989) 168 CLR 1 Green v United States 355 US 184 (1957) Griffiths v The Queen (1977) 137 CLR 293 Kopuz v District Court of NSW (1992) 28 NSWLR 232 Maxwell v The Queen (1996) 184 CLR 501 Li Wan Quai v Christie (1906) 3 CLR 1125 Pearce v The Queen (1998) 194 CLR 610 Regina v Cheng (1999) 48 NSWLR 610 Regina v Dodd (1991) 56 A Crim R 451 Regina v Holton [2004] NSWCCA 214 Regina v King (2003) 139 A Crim R 132 Regina v Lethlean (1995) 83 A Crim R 197 Regina v Marchione (2002) 128 A Crim R 574 Regina v Tonks [1963] VR 121 Regina v Vincent [2002] NSWCCA 110 Rex v Banks [1911] 2 KB 1095 Rex v Barron [1914] 2 KB 570 Rex v Parry & Ors (1837) 7 C & P 836 [173] ER 364 Rex v Sheraton [1937] 1 KB 223 Richards v The Queen [1993] AC 217 Rogers v The Queen (1994) 181 CLR 251 S (an infant) v Recorder of Manchester [1971] AC 481 Saraswati v The Queen (1991) 172 CLR 1 The King v Kent-Newbold (1939) 62 CLR 398 The Queen v Blaby [1894] 2 QB 170 The Queen v Milnes and Green (1983) 33 SASR 211 US v Ball 163 US 662 (1896) Walton v Gardiner (1993) 177 CLR 378 Wemyss v Hopkins (1875) LR 10 QB 378 at 381
PARTIES:	Regina (Appellant) Robert John Stone (Respondent)
FILE NUMBER(S):	CCA 2005/1184
COUNSEL:	D C Frearson SC (Appellant) P Hamil SC / Ms M Avenell (Respondent)
SOLICITORS:	S Kavanagh (Appellant) SE O'Connor (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0004
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ