ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal Law-Special leave to appeal-Three counts in information-Acquittal on
two counts-Conviction on third count-Inconsistency-Pleas-Issue estoppel- Conviction quashed by Court of Criminal Appeal-Discretion of Court of Criminal Appeal to refuse new trial-Discretion of High Court to grant special leave to appeal.
An information against W. and his wife charged three offences: (1) man- slaughter of B.; (2) conspiracy with B. and P. to procure the unlawful miscarriage of B.; and (3) conspiracy with P. to defeat the course of public justice. The case for the prosecution rested largely on the evidence of P., an alleged accomplice who had been pardoned, and who deposed that he had arranged with W. and his wife to procure the miscarriage of B., that B. had died whilst in W.'s house, and that, after removing B.'s body to another place, W. had told him to give to the police an untrue account of B.'s death. The jury found both accused not guilty on the first two counts, but guilty on the third count. On appeal, the Court of Criminal Appeal quashed the conviction on the ground of inconsistency between the verdicts.
Held, by Rich, Dixon and McTiernan JJ. (Latham C.J. dissenting,) that special leave to appeal to the High Court should be refused.
Per Dixon J. (and semble per McTiernan J.): Although the High Court has jurisdiction to grant special leave to appeal from judgments of acquittal, this is an exceptional power, to be carefully exercised in that it is not in accordance with the general principles of English law to allow such appeals.
Per Dixon J., issue estoppel in criminal trials discussed. Decision of the Court of Criminal Appeal of South Australia, Wilkes v. The King, discussed.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of South Australia.
An information laid by the Attorney-General of South Australia in the Supreme Court of that State against H.J. Wilkes and D. M. Wilkes, his wife, charged three offences :-
First count: manslaughter in that the accused on or about 18th November 1947 unlawfully killed one Bessie Boulton.
Second count conspiracy to procure abortion in that the accused in the month of November 1947 conspired with the said Bessie Boulton and one D. R. Prior to procure the unlawful miscarriage of Bessie Boulton.
Third count: conspiracy to defeat the course of public justice in that the accused on 18th November 1947 conspired together and with Prior to defeat the course of public justice.
The case for the prosecution depended almost entirely upon the evidence of Prior, the alleged accomplice, who had received a pardon. He deposed that he had been intimate with Bessie Boulton (a married woman living apart from her husband) who, in November 1947, found herself three months pregnant and told him that she wished to procure a miscarriage. He communicated with Wilkes and told him what he wanted. After a personal interview between Prior and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Wilkes [1948] HCA 22
Case
[1948] HCA 22
Decision Date
CaseChat Overview and Summary
The case involved an application for special leave to appeal to the High Court of Australia following a decision by the Court of Criminal Appeal of South Australia. The original information laid by the Attorney-General of South Australia charged H.J. Wilkes and D.M. Wilkes with three offences: manslaughter of Bessie Boulton, conspiracy with Boulton and D.R. Prior to procure an unlawful miscarriage of Boulton, and conspiracy with Prior to defeat the course of public justice. The jury acquitted both accused on the first two counts but convicted them on the third count. The Court of Criminal Appeal subsequently quashed the conviction on the third count, citing inconsistency between the verdicts and ordering that judgments of acquittal be entered.
The legal issues before the High Court concerned whether special leave to appeal should be granted to the Crown from the Court of Criminal Appeal's decision to quash the conviction and enter acquittals. Specifically, the court considered the nature of issue estoppel in criminal trials, the discretion of the Court of Criminal Appeal to refuse a new trial, and the exceptional power of the High Court to grant special leave to appeal from judgments of acquittal. The Crown argued that the Court of Criminal Appeal had erred in introducing a concept of "criminal estoppel" and that the jury's verdicts were not necessarily inconsistent.
The majority of the High Court, comprising Rich, Dixon, and McTiernan JJ., refused special leave to appeal. Dixon J. emphasised that while the High Court has jurisdiction to grant special leave from judgments of acquittal, this is an exceptional power to be exercised cautiously, as it is not in accordance with general English legal principles to allow appeals from acquittals. He noted that the Court of Criminal Appeal had exercised its discretion to quash the conviction due to the unsatisfactory nature of the verdict in light of the acquittals on the other counts, and that this was a proper exercise of that court's power. While Dixon J. discussed the concept of issue estoppel in criminal trials, he concluded that it was not necessary to determine the precise legal question in this application, as the application was one of discretion. Latham C.J. dissented, expressing doubt about the Court of Criminal Appeal's reasoning regarding the inconsistency of the verdicts and the implications for future proceedings, and would have granted special leave to clarify these points.
The application for special leave to appeal was refused.