R v Walter

[2018] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:	R v Walter [2018] NSWDC 75
Hearing dates:	2 February 2018
Date of orders:	16 February 2018
Decision date:	16 February 2018
Jurisdiction:	Criminal
Before:	Blackmore SC DCJ
Decision:	Charge dismissed
Catchwords:	CRIME - procedure - autrefois acquit - interests of justice - abuse of process - incontrovertibility - back up charge - section 166 certificate - verdict of acquittal - finality in judicial proceedings - further prosecution of an accused person
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Connelly v Director of Public Prosecutions [1964] AC 1254 PJE v The Queen (1996) 15 Leg Rep C2 Regina v Carroll [2002] 213 CLR 635
Category:	Procedural and other rulings
Parties:	New South Wales Director of Public Prosecutions Andrew Jason Walter
Representation:	Counsel: Peter K Lynch - Crown Sheridan Goodwin - Offender Solicitors: Director of Public Prosecutions - Crown Steven Young Lawyers - Offender
File Number(s):	2016/00110464

Judgment

1. The accused Andrew Walter faced trial by jury on a charge of break and enter and commit serious indictable offence, namely assault occasioning actual bodily harm, in circumstances of aggravation, namely that the accused used corporeal violence on the complainant.

2. After his trial the accused was found not guilty by the jury.

3. As is common with jury trials it is not possible to know the reason or reasons for such a verdict.

4. The Crown however had filed, prior to committal, a section 166 certificate (see Criminal Procedure Act, 1986 section 165 and following). That certificate included, as back up charges, two offences including one of assault occasioning actual bodily harm. The other offence was one of contravene an apprehended domestic violence order.

5. It is now submitted by the accused that he should not face a summary hearing in relation to the charge of assault occasioning actual bodily harm as that charge formed one of the elements of the offences for which he was found guilty by the jury. It is argued, as I understand it, that the principle of autrefois acquit applies in these circumstances, or that it would be oppressive for the accused to face the same charge twice and therefore the charge should be permanently stayed as an abuse of process.

Autrefois Acquit

6. There is no rule of law or principle to the effect that evidence, which has first been used in support of a charge which is not proved, may not be used to support a subsequent or different charge. [1] An acquittal of a charge by the jury is an acquittal of the whole charge but not every part of it. For the principle of autrefois acquit to apply, "the offence of which the accused has been acquitted and that with which he is charged must be the same in the sense that each must have the same essential ingredients."[2]

   1. Connelly v Director of Public Prosecutions [1964] AC 1254, [1357-8]; R v Carroll [2002] 213 CLR 635, [31].

   2. Connelly v Director of Public Prosecutions [1964] AC 1254, [1273].

7. In this case the principle of autrefois acquit does not apply as the acquittal of the accused on the whole charge does not mean an acquittal on part of it.

Abuse of Process

8. A decision that criminal proceedings amount to an abuse of process is a discretionary one. In R v Carroll [3] it was noted that the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that a verdict of acquittal should be incontrovertible. It was also noted that it would be unwise to attempt to decide the limits of the principle about incontrovertibility.

   3. R v Carroll [2002] 213 CLR 635, [45].

9. The facts in Carroll were very different to those here. The essence of the judgment of the Court however is relevant to the present claim. The accused here claims that the jury were presented with the evidence relevant to the charge of assault occasioning actual bodily harm as a necessary part of the larger charge and found him not guilty of a charge that included that element. Therefore, it is argued, he should not be put back on trial for the lesser charge because the verdict of the jury should be regarded as incontrovertible. Further it is submitted that it is unfair to allow the Crown to litigate one of the same factual issues already decided in the trial, a trial that essentially relied on the evidence of the one complainant. Using the process of a section 166 certificate, when the Crown could have sought an alternative verdict from the jury that would have resulted in a final decision on the issue once and for all, is oppressive. In effect it is the repetition of the litigation by the State which is said to be oppressive. Had this element of the offence been a statutory (rather than a common law) alternative, section 163 of the Criminal Procedure Act would have prevented the re-litigation of this element.

10. In Carroll [4] Glesson CJ and Hayne J further stated;

“The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person is later charged. Seldom if ever will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.

To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final.”

4. Ibid [47-48].

11. Those observations would suggest that to put the accused on trial (even a summary trial) for a charge that formed part of the elements of the charge for which he was acquitted does raise issues of oppression such that a stay of proceedings is appropriate.

12. This however leaves the question; can there be an abuse of process or oppression if Parliament has specifically endorsed a process of allowing lesser, back up charges, to be tried after the accused is acquitted of the greater charge that included the lesser charge as an element?

The Operation of Division 7 of the Criminal Procedure Act

13. The Crown has submitted in effect that it cannot be oppressive to deal with the back up charges when the accused was notified in accordance with Division 7 prior to the trial of the existence of that charge. The procedure for dealing with the charges is outlined in section 167(1A) of the Criminal Procedure Act. That section states;

(1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice."

14. It is useful to identify what the legislation defines as a back up offence;

In this part a back up offence, in relation to an indictable offence, means an offence:

(a)   that is:

(i) a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b)   all the elements of which are elements that are necessary to constitute the first indictable offence, and

(c)   that is to be prosecuted on the same facts as the first indictable offence.

15. For completeness Chapter 5 deals with Summary Disposal of Indictable Offences by the Local Court. Section 259 provides that this Chapter applies to offences listed in Tables 1 and 2 to Schedule 1 of the Act. Table 2 to Schedule 1 includes offences under section 59 of the Crimes Act, namely an offence of assault occasioning actual bodily harm.

16. What appears clear from this legislation is that the section anticipates that an accused can and will face a back up charge that includes the same or some of the same elements as the charge for which he or she was prosecuted on trial on indictment. The only opportunity for an accused to avoid such a summary hearing is to call into service the phrase used in section 167(1A) that it is not in the interests of justice for him or her to face such a trial.

17. In my view it cannot be said that the application of the legislative provision, in itself, operates oppressively to the accused. In PJE v The Queen (1996) 15 Leg Rep C2, (a transcript of a High Court leave application), Brennan CJ said in relation to the operation of section 409 of the Criminal Procedure Act (now section 293) that;

“To grant special leave would elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by the parliament is unfair. That is not a view to which a court is entitled to give effect in determining whether to exercise its jurisdiction when it is properly invoked.”

18. With respect the same observation is relevant to the suggestion here, that to proceed with hearing the back up offence is oppressive and unfair when the exercise of the court's jurisdiction is properly invoked by legislation.

19. But that is by no means the end of the matter. As is pointed out by the Crown in its submission, section 167(1A) provides that the court has a discretion based on whether it would be in the interests of justice to further try the accused on the back up charge. The judgment of the High Court in Carroll referred to above may still be relevant and provide guidance as to whether a further prosecution of the accused is warranted in the circumstances of this case.

20. In my view the High Court's observations that finality as determined by verdict of acquittal remains a very important consideration when determining whether, in the interests of justice, an accused should be retried for an offence which is wholly encompassed in the elements of a greater offence. This case provides such an example. This case relied entirely on the evidence of the one complainant. It could be argued that her evidence was supported by observations of distress and injury, but even those observations are, to a significant extent, reliant on the evidence of the complainant. The jury had every opportunity to assess her evidence and found that the accused was not guilty of the greater offence which encompasses this back up offence. As was observed in Carroll; "finality is a value which finds its roots in personal autonomy, and which serves to delineate the proper ambit of the power of the state by the State acknowledging "that it respects the principle of limited government and the liberty of the subject."[5]

    5. Ibid [49].

21. In this case the Crown had every opportunity to convince the tribunal of fact of the guilt of the accused and failed.

22. In my view, as a general rule, it is not in the interests of justice to retry an accused when a final decision has been made by a properly constituted tribunal of fact with respect to one of the essential elements of the charge for which an accused has been found not guilty.

23. Of course there might be exceptions. For example, had there been an agreed fact or an admission made by the accused to the effect that he had assaulted the complainant leaving the only factual issue being whether the accused broke and entered the premises, then that may well lead to a different conclusion. In those circumstances it might be said, that the tribunal of fact did not have to reach a concluded view on the assault, and as such it is in the interests of justice that the accused should now face that charge as a back up. But that is not what happened here.

Conclusion

24. In my view it is not in the interests of justice for the accused to be retried on a back up charge alleging assault occasioning actual bodily when that charge formed an element of a greater offence for which he was found not guilty by the jury. That element was left as one of the elements at large for the jury to determine and their conclusion that the accused was not guilty should be final.

25. I therefore decline to decide to hear the back up charge of assault occasioning actual bodily harm on the basis that it is not in the interests of justice to do so.

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Endnotes

Decision last updated: 03 April 2018