Rogers v The Queen

[1994] HCA 42

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, GAUDRON AND McHUGH JJ

ROGERS v THE QUEEN

(1994) 181 CLR 251

28 September 1994

Criminal Law

Criminal Law—Issue estoppel—Application to criminal proceedings Abuse of process -- Confessions ruled involuntary and inadmissible at trial—Whether prosecution free to tender at later trial for other offences.

Orders

Appeal allowed.

Declare that: (1) the course proposed by the prosecution amounts to an abuse of

process; and

(2) if no evidence is presented on counts 1, 4, 6 and 8, the appellant should be acquitted on those counts.

Decisions

MASON CJ I agree that this appeal should be allowed on the ground that the course adopted by the prosecution amounts to an abuse of process.

2. I adhere to the view which I expressed in Reg. v. Storey ((1) (1978) 140 CLR 364 at 400-401.) that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons which compel acceptance of that view are set out in the judgments of Barwick CJ, Gibbs J and myself in that case ((2) ibid. at 371-374 per Barwick CJ, 379-389 per Gibbs J, 400-401 per Mason J). The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions ((3) England: Reg. v. Humphrys (1977) AC 1; Hunter v. Chief Constable (1982) AC 529; New Zealand: Reg. v. Davis (1982) 1 NZLR 584; Bryant v. Collector of Customs (1984) 1 NZLR 280; but cf. Duhamel v. The Queen (1984) 14 DLR (4th) 92.).

3. I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second
proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories ((4) Hunter v. Chief Constable (1982) AC at 536 per Lord Diplock.). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.

4. Williams v. Spautz ((5) (1992) 174 CLR 509.) is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression ((6) ibid. at 520, endorsing Moevao v. Department of Labour (1980) 1 NZLR 464 at 482.). In Walton v. Gardiner ((7) (1993) 177 CLR 378 at 395.) it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. In that case, Mason CJ, Deane and Dawson JJ stated that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process ((8) ibid. at 393.):

"extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".

Their Honours went on to say ((9) ibid.):

"(P)roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings".

5. Statements to the same effect have been made by the House of Lords ((10) Hunter v. Chief Constable (1982) 1 AC at 536.) and the New Zealand Court of Appeal ((11) Moevao v. Department of Labour (1980) 1 NZLR at 481.). These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((12) (1993) 177 CLR at 395-396.). Those considerations, which reflect the two aspects of abuse of process outlined above, include ((13) ibid. at 396.):

"the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice".

6. In the present case, a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered - although relating to different crimes - were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.

7. The appeal should be allowed and it should be declared that, if no evidence is presented on counts 1, 4, 6 and 8, the appellant should be acquitted on those counts.

BRENNAN J The appellant, Rogers, was tried before the District Court of New South Wales on four counts of armed robbery. Judge Phelan conducted a voir dire to determine the admissibility of the relevant parts of three records of interview that the Crown sought to tender in that trial. These three interviews were, chronologically, nos 1, 2 and 4 in a series recorded consecutively on 27 or 28 August 1988 by police officers who were investigating 12 robberies. On 19 October 1989, his Honour held that the records of interview were not admissible because the Crown had failed to satisfy him that Rogers had made them voluntarily. At the trial before Judge Phelan on counts relating to four of these robberies, the jury convicted Rogers on two counts and acquitted him on the other two.

2. On 6 April 1992, an indictment was presented before Judge Kinchington containing further counts relating to the other eight robberies. Rogers pleaded not guilty to each count. The Crown proposed to tender each of the four records of interview taken on 27 or 28 August 1988 in proof of one or other of the counts contained in the indictment. In respect of four of those counts (counts 1, 4, 6 and 8), the only evidence available to support the charges were confessional statements contained in a record of interview. The record of interview relevant to counts 1, 6 and 8 was the third in the series; the record of interview relevant to count 4 was the fourth in the series. The appellant sought an order that the proceedings on the indictment be permanently stayed on the ground that their continuance would be an abuse of process. The abuse was said to consist in the unfairness of allowing the Crown to proceed when the proceedings "would involve a recanvassing of an issue as to the admissibility of certain confessional material which, in effect, (had) already been determined by his Honour Judge P J Phelan". Judge Kinchington declined to stay the proceedings. The appellant, availing himself of the provisions of s.5F of the Criminal Appeal Act 1912 (N.S.W.), obtained leave to appeal and appealed to the Court of Criminal Appeal.

3. In the Court of Criminal Appeal, the appellant relied on two arguments: first, that an estoppel had arisen on the issue of the voluntariness of the records of interview; secondly, that it would be an abuse of process to permit a collateral attack to be made on the decision by Judge Phelan that the records of interview were not voluntary. The arguments, having failed before the Court of Criminal Appeal, were repeated before this Court.

Issue Estoppel

4. The applicability of the doctrine of issue estoppel in criminal proceedings was considered by this Court in Reg. v. Storey ((14) (1978) 140 CLR 364.). That case was preceded by other cases in which the question had been discussed: R. v. Wilkes ((15) (1948) 77 CLR 511 at 518-519.), Mraz v. The Queen (No.2) ((16) (1956) 96 CLR 62 at
68-69.) and Garrett v. The Queen ((17) (1977) 139 CLR 437 at 445-446.). In England, the same question had been considered in Connelly v. Director of Public Prosecutions ((18) (1964) AC 1254.) and Reg. v. Humphrys ((19) (1977) AC 1.). This Court was divided in Storey, no clear majority emerging either for or against applying the doctrine of estoppel in criminal proceedings. Until Storey, the weight of authority in this Court favoured its application in criminal cases and in Mraz (No.2) the doctrine had formed the ratio of the decision. The division of opinion in Storey is explicable, however, by reference to the difficulties that attend the application of the doctrine in criminal cases. These difficulties had been canvassed in the speeches in the House of Lords in Humphrys. Barwick CJ in Storey ((20) (1978) 140 CLR at 371-372.) accepted what Viscount Dilhorne had said in Humphrys and regarded the attempt to apply the doctrine in criminal cases as "introducing into the criminal law an inadmissible principle". Gibbs J ((21) ibid at 379-380.) found three main objections to its application in criminal cases: first, the difficulty in defining distinct issues in a criminal case; second, the impossibility of admitting mutuality as a condition of estoppel; and third, the artificiality of the doctrine in possibly requiring a judgment contrary to overwhelming evidence. Mason J ((22) ibid at 400-401.), whilst denying application of the doctrine in criminal cases, held that "there is an analogous doctrine, namely, res judicata, which has been applied in criminal proceedings and has sometimes been described as issue estoppel". In his Honour's view, res judicata "precludes the Crown from raising the guilt of the accused for (an offence of which he had been acquitted) in proceedings for another offence" because "the binding consequence of the verdict (of acquittal) requires that it be accorded a full and unqualified recognition for all purposes in the criminal law" ((23) ibid at 400.). His Honour regarded Sambasivam v. Public Prosecutor, Federation of Malaya ((24) (1950) AC 458.) - a case which has been generally thought to be based on a correct principle - as an instance of the application of res judicata in the criminal law ((25) (1978) 140 CLR at 399.). In Sambasivam, Lord MacDermott said ((26) (1950) AC at 479.):

" The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings."

5. In the cases thus far mentioned, the question of applying the doctrine in criminal cases has arisen in the context of a verdict and judgment of acquittal in a prior criminal trial. In that context, the plea of autrefois acquit has an established territory of operation underpinned by the principle against double jeopardy. In that context, it is understandable that the doctrine of issue estoppel can be seen as foreign to the operation of the criminal law. Thus Lord Hailsham of St Marylebone observed in Humphrys ((27) (1977) AC at 39-40.):

"The fact is ... that the whole doctrine (analogous to issue estoppel) springs from the danger of double jeopardy and should be read as both giving to the accused the extended benefits of that doctrine and imposing on him the limitations implied by it. ... The doctrine in criminal proceedings is aimed at the need to prevent double jeopardy and not at the need to effect finality in litigation. It is thus aimed at verdicts rather than issues, and though issues may sometimes be isolated and examined to see whether there has in fact been a danger of inconsistent verdicts and thus a double jeopardy (and where there is, the second prosecution is prohibited), where there is no such double jeopardy involved in the case the prosecution is not prohibited from adducing evidence or making assertions the incidental effect of which is to cast doubt on a previous verdict."

6. The present case does not arise in the context of a verdict and judgment of acquittal. It is not concerned with the verdict and judgment in the trial before Judge Phelan but with the finding which his Honour made in ruling on the voir dire - a trial within the trial. His Honour ruled that the records of interview were not admissible in evidence against the appellant - or, perhaps more precisely, Judge Phelan's ruling must be taken to have excluded those portions of the records of interview which related to the counts in the indictment before him. No plea of autrefois acquit is material; the effect of the verdicts of acquittal on two of the counts in the trial before Judge Phelan is not in question. What is in question is the effect of his Honour's finding that he was not satisfied that Rogers participated voluntarily in the taking of the records of interview and his Honour's consequent ruling rejecting the relevant confessional material contained in records of interview nos 1, 2 and 4. To consider whether the application of the doctrine in criminal cases is appropriate in this context, it is desirable to consider the course of authority in this Court prior to Storey and the objections taken to the application of the doctrine of issue estoppel in criminal cases by Barwick CJ, Gibbs and Mason JJ in Storey.

7. The starting point is the judgment of Dixon J in Wilkes ((28)
(1948) 77 CLR at 518-519.) where his Honour said:

" Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. ... Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation."

His Honour clearly addressed a question that went beyond the operation of the principle against double jeopardy and the operation of the doctrine of res judicata and its manifestation in the pleas of autrefois convict and autrefois acquit ((29) Arguably, autrefois acquit falls into the category of issue estoppel rather than into the category of res judicata: see per Lord Pearce in Connelly v. Director of Public Prosecutions (1964) AC at 1365. But categorization is immaterial to the question to be decided in this appeal. Mason J regarded autrefois acquit as a manifestation of res judicata in Storey
(1978) 140 CLR at 399.). He was addressing the problem of re-litigating issues that had already been finally decided between the Crown and an accused. It was the determination of issues, not the effect of judgments, that he was discussing. He was not purporting to affect the pleas of autrefois convict and autrefois acquit which relate directly to criminal liability for conduct (although, as Mraz (No.2) illustrates, the application of the doctrine of issue estoppel in criminal cases may protect an accused against double jeopardy in respect of the same conduct charged in successive cases).

8. Dixon J defined the essence of the doctrine of issue estoppel in
Blair v. Curran ((30) (1939) 62 CLR 464 at 531.):

" A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

Issue estoppel is thus concerned with the determination of issues. Res judicata, on the other hand, is concerned with the remedy or relief granted in a given set of circumstances. His Honour pointed to the distinction in Blair v. Curran ((31) ibid at 532.):

"The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."

9. Although merger provides a distinction between res judicata and issue estoppel, both doctrines bind the parties and their privies to accept a final judicial decision of a question between the parties as correct ((32) Nelson v. Couch (1863) 15 CB (NS) 99 at 108 (143 ER 721 at 724).). The rule is expressed in the maxim res judicata pro veritate accipitur. The parties and their privies are bound by the judgment or order into which any cause of action or right to relief has passed (res judicata) and by the determination of any issue which was the necessary legal justification or foundation for the prior decision
(issue estoppel). In Wilkes, Dixon J was speaking of the determination of the same issue in successive criminal trials. He was not speaking of the verdicts or judgments that might follow successive prosecutions based on the same set of circumstances.

10. Issue estoppel extends not only to findings of fact or decisions on points of law that are expressly declared in a judgment or order but to any "matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue" ((33) Reg. v. Hartington Middle Quarter (1855) 4 El and Bl 780 at 794 (119 ER 288 at 293); Blair v. Curran (1939) 62 CLR at 532.). But issue estoppel does not extend to findings of fact which, though contested and probative of the ultimate issue, are not necessary to, or are not the legal foundation of, the decision made ((34) Blair v. Curran (1939) 62 CLR at 531-533.). Starke J confined the scope of the doctrine in these terms ((35) ibid at 510; see also Brewer v. Brewer (1953) 88 CLR 1 at 14-16.):

"a judgment is conclusive evidence not merely of the facts directly decided but of those facts which are necessary steps to the decision - so cardinal to it that without them it cannot stand". (Emphasis added.)

Being so confined, the doctrine is not accorded a scope broader than the maxim res judicata pro veritate accipitur demands. Subsequent decisions can be made untrammelled by the prior determination provided they are not necessarily inconsistent with it. In Wilkes, Dixon J was alive to the limitations on the operation of the doctrine of issue estoppel and accurately anticipated that the occasions for applying the doctrine in the context of jury verdicts would be extremely confined. But that is not to deny either the applicability or the utility of the doctrine to criminal cases. In Mraz (No.2) there was an occasion to apply the doctrine to a finding implicit in a verdict and the present case offers an occasion to apply it to a ruling made on a voir dire. The utility of applying the doctrine is another matter, but it is convenient to leave that topic until we examine Mraz (No.2).

11. In Mraz (No.2), this Court unanimously allowed an appeal against a conviction for rape by applying the doctrine of issue estoppel to a verdict of manslaughter returned against Mraz on a charge of felony-murder. The felony alleged was rape and the proposition on which murder was charged was that Mraz caused the death of the deceased woman during or immediately after the commission of the rape. The jury's verdict of manslaughter negated that proposition. The Court said ((36) (1956) 96 CLR at 68.):

"On a subsequent indictment the Crown would be precluded upon any issue which could not be found consistently with the negative of the proposition. For the Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings: R. v. Wilkes ((37) (1948) 77 CLR at 518, 519.); Sambasivam v. Public Prosecutor of Malaya ((38) (1950) AC at 479.)."

It was the rape alleged in the earlier trial with which Mraz was charged and for which he was convicted in the later trial. By analysis of the evidence and of the conduct of the earlier trial, the Court concluded that the jury in that trial had acquitted Mraz of murder by finding that he was not guilty of the rape of which he was convicted in the later trial. That finding was not disclosed by the record of the earlier trial ((39) (1956) 96 CLR at 69.). But a court, in ascertaining whether a finding has been made on which an estoppel is raised, is entitled to look not only at the record - often inscrutable in a criminal case - but also at any material that shows what issues were raised and decided ((40) per Fullagar J in Jackson v. Goldsmith (1950) 81 CLR 446 at 467; see also Gray v. Dalgety and Co. Ltd. (1916) 21 CLR 509 at 543; Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR 537 at 563; Mraz v. The Queen (No.2) (1956) 96 CLR at 69.). By contrast, when res judicata is raised, the Court is confined to reference to the record. For this reason I am unable, with respect, to share the view taken by Mason J in Storey, that Mraz (No.2) is a case of res judicata ((41) Even if one treats the record in the earlier trial of Mraz as having included the rape as a particular of the felony-murder, the record was ambiguous as to the element of the crime of murder of which the jury was not satisfied.). It was an instance of the application of the doctrine of issue estoppel.

12. In Humphrys, Lord Hailsham ((42) (1977) AC at 38.) regarded both Mraz (No.2) and Dixon J's statement in Wilkes as going no further than saying that double jeopardy precludes the acceptance of a verdict of guilty inconsistent with a previous verdict of acquittal. That the principle against double jeopardy has that effect can be accepted but the problem in Mraz (No.2) was to discover the terms of the previous verdict; the problem was to discover whether the previous verdict was based on a finding that Mraz was not guilty of rape and, in the event of discovering that that was the basis of the verdict, to provide appropriate relief. That problem was solved by applying the doctrine of issue estoppel. Lord Hailsham, while insisting that double
jeopardy is "aimed at verdicts rather than issues" ((43) ibid at 40.), could accommodate the problem addressed in Mraz (No.2) only by allowing that "issues may sometimes be isolated and examined to see whether there has in fact been a danger of inconsistent verdicts" ((44) ibid.). Once it is found necessary to go behind the meagre record of a criminal trial in order to ascertain the basis of a verdict, the applicable doctrine is issue estoppel, not res judicata. In Humphrys, Viscount Dilhorne ((45) ibid at 18.) regarded Mraz (No.2) as "not very satisfactory" because the conviction for rape in the later trial would not have been quashed if this Court had been unable to discover that the verdict in the earlier trial involved a finding that Mraz was not guilty of rape. His Lordship's reasons were adopted by Barwick CJ in Storey ((46) (1978) 140 CLR at 373.). But, with respect, it is hardly a criticism of the doctrine of issue estoppel that the verdict in a criminal trial usually precludes an effective application of the doctrine although, infrequently, it is possible for the court to identify and avert the double jeopardy to which an accused has been exposed.

13. If it be right to say that it is not an object of the rule against double jeopardy to preclude the re-litigation of issues already finally decided between the Crown and an accused and if the avoidance of double jeopardy is the only purpose of the law relating to the effect of a verdict of acquittal, it would be sound legal policy not to apply the doctrine of issue estoppel in criminal cases. Taking that view, to introduce the doctrine to the criminal law would be to produce in some cases the artificiality that troubled Gibbs J
in Storey. But, where successive verdicts can be shown to be inconsistent in fact though not in form, it would be a reproach to the criminal law if it were unable to prevent the conviction of a person for conduct in respect of which that person had been found not to be guilty. This was the problem in Mraz (No.2). The Court examined a verdict opaque in form and discovered that it was founded on an acquittal. That was an application of the doctrine of issue estoppel, not of the doctrine of res judicata. Although the doctrine of issue estoppel has not always been distinguished in terms from the doctrine of res judicata or the principles of double jeopardy, it is a doctrine that is capable of application in criminal cases.

14. Why, it must be asked, should the avoidance of re-litigation of issues not be an object of the criminal law? In Wilkes, Dixon J thought that it should. For that reason, he thought that there is "nothing wrong" in the application of the doctrine of issue estoppel in criminal cases ((47) (1948) 77 CLR at 518.). There is, in my opinion, greater force in the policy considerations that weighed with
Dixon J than in the contrary view. Indeed, the avoidance of re-litigation of issues is an object not only of the doctrine of issue estoppel but also of the doctrine of res judicata in the general law. The principles underlying the doctrine of res judicata were stated by Lord Blackburn in Lockyer v. Ferryman ((48) (1877) 2 App Cas 519 at 530.):

"The object of the rule of res judicata is always put upon two grounds - the one public policy, that it is the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause."

In Jackson v. Goldsmith ((49) (1950) 81 CLR at 466.) Fullagar J attributed the rule as to res judicata to the same principles, expressed in the Latin maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro eadem causa. If the pleas of autrefois convict and autrefois acquit are true manifestations of res judicata, the policy that underlies those pleas is not only the avoidance of double jeopardy but the public interest that there be an end of litigation. Why should that public interest not be served by the avoidance of re-litigation of issues in criminal cases? True it is that the Crown may be able to bring overwhelming evidence on a later trial though it had suffered an issue to be determined without that evidence in an earlier trial, but that consideration can be advanced with equal cogency against the plea of autrefois acquit as it can against the doctrine of issue estoppel.

15. Of more concern to legal policy is the factor which led Lamer J in Duhamel v. The Queen ((50) (1984) 2 SCR 555; 14 DLR (4th) 92.) to draw back from applying the doctrine of issue estoppel to a finding made on a voir dire, namely, the absence of any appeal. His Lordship said ((51) ibid at 563; at 99.):

"Though the voir dire is in a sense autonomous, it is nevertheless totally dependent upon the main trial for its appeal process. Let us postulate error on the part of the judge in determining the admissibility of the statement. If the statement is wrongly excluded, even through error of law, but the accused nevertheless convicted, benefit of the doctrine of res judicata would then be founded upon an error of law beyond the reach of redress. Indeed, the Crown has no appeal from that conviction. Similarly, if the statement is excluded through error of fact, and the accused acquitted, again the erroneous finding is beyond the reach of the courts as the Crown's right to appeal is limited to matters of law."

In this context, it is instructive to consider the judgment of the Court of Appeal of New Zealand in Bryant v. Collector of Customs ((52) (1984) 1 NZLR 280.). The Court held that a ruling on voir dire excluding confessional evidence as involuntary concluded the issue of admissibility in a subsequent trial. Richardson J ((53) ibid at 284.) held that the first ruling "was immediately binding on the Crown and became final when the verdict of the jury was entered". But in that case the Crown could have had the ruling reserved for the opinion of the Court of Appeal and, having failed to do so, the Crown's attempt to tender the confession in the subsequent trial was regarded as an abuse of process. His Honour said ((54) ibid.):

" In turn the Judge's duty at that point was to exercise the inherent power which any Court of justice must possess to prevent abuse of its processes and to refuse that application. Only in that way could he serve the relevant public policies underlying the doctrine of abuse of process in this area of the criminal law: that litigation should settle disputes finally; that an accused should not be harassed again by the reopening of a central issue on which he succeeded at the first trial; and that if an unappealed or unsuccessfully appealed final decision of one Court may be reopened by another Court any resulting inconsistency can only bring the administration of justice into disrepute."

The provisions of s.5F of the Criminal Appeal Act appear to provide an avenue of appeal against interlocutory orders similar to that provided
by the law of New Zealand. For that reason, Bryant is a more
persuasive authority in this case than Duhamel.

16. However, even in the absence of any avenue of appeal, I would favour the application of the doctrine of issue estoppel (subject to a qualification presently to be mentioned) to findings made in the course of rulings that become final. The policy of the criminal law has traditionally favoured the limitation of Crown appeals against a verdict of acquittal ((55) Davern v. Messel (1984) 155 CLR 21; Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) (1978) 38 FLR 397; 19 ALR 547; cf. per Starke J in Helton v. Allen (1940) 63 CLR 691 at 702-703.) and the tenderness shown by the law in this respect combined with the desirability of finality in litigation justifies the application of the doctrine of issue estoppel to final rulings in favour of an accused on voir dire. Although, on a balance of policy considerations, I would favour the application of the doctrine in criminal cases, I do so with some misgivings of the kind which weighed
with Lamer J in Duhamel. But at the end of the day, to allow inconsistent findings to stand either on criminal liability for conduct or on voluntariness in the making of a confession could only engender the gravest sense of injustice in an accused person and promote the notion that a criminal trial is, in significant respects, a lottery.

17. However, there is one objection to the application of the doctrine of issue estoppel in criminal cases that must be accepted. It is impossible to treat mutuality as essential to the operation of the doctrine in criminal law. Although mutuality is a criterion of applicability of the doctrine in civil litigation ((56) Petrie v. Nuttall (1856) 11 Ex 569 (156 ER 957); Caine v. Palace Steam Shipping Company (1907) 1 KB 670 at 683; (1907) AC 386 at 395.) and has been held to preclude the acceptance of a conviction as conclusive in favour of another party in civil proceedings ((57) Hutton v. Ras Steam Shipping Company Limited (1907) 1 KB 834 at 844.), an issue estoppel cannot enure for the advantage of the Crown in a criminal trial. Although there be an identity of parties - the Crown being, in the eye of the law, the party to a criminal prosecution ((58) Commonwealth Life Assurance Society Ltd. v. Smith (1938) 59 CLR 527 at 538.) - mutuality would run counter to the basic notion that the accused is entitled to the presumption of innocence until the Crown produces evidence that satisfies the jury of his guilt beyond reasonable doubt.
As Gibbs J said in Storey ((59) (1978) 140 CLR at 380-381.):

"It would be contrary to the fundamental principles of the criminal law that the members of a jury should be obliged by the decision of another tribunal to bring in a verdict against an accused person, without themselves being satisfied that issues which the accused wished to contest had been proved against him."

It follows that issue estoppel can operate, if at all, only in favour of an accused person, not against him. Mutuality is, in my respectful opinion, the only valid objection to the application of the doctrine in criminal cases ((60) Issue estoppel was applied against an accused in Reg. v. Hogan (1974) QB 398 but that case was overruled in Humphrys and rightly so.). If the doctrine is to be either rejected or modified for application in criminal cases, the better view is that it be modified. Adoption of the doctrine follows the unwavering line of authority in this Court before Storey, the views of Stephen ((61) (1978) 140 CLR at 391 agreeing with Aickin J), Murphy ((62) ibid at 413.) and Aickin ((63) ibid at 423.) JJ in that case and, subject to a modification ((64) Occasioned, it seems, by the explanation which Jacobs J offers of Mraz (No.2) in Storey: ibid at 407.), the views of Jacobs J in that case.

18. The earlier cases in this Court clearly related to final judgments following verdicts of acquittal. But no distinction can be drawn between the nature of the questions necessarily determined by a judgment of acquittal on the one hand and the nature of the questions necessarily determined by a decision to exclude confessional evidence on the other. Issue estoppel is a doctrine which is capable of applying to any kind of issue that has been litigated before and finally determined by a court of competent jurisdiction. In In re May ((65) (1885) 28 Ch D 516 at 518.) Brett MR, dismissing an argument that the doctrine of res judicata applies only where there is a formal record, said:

"The doctrine of res judicata is not a technical doctrine applicable only to records. It is a very substantial doctrine, and it is one of the most fundamental doctrines of all Courts, that there must be an end of litigation, and that the parties have no right of their own accord, after having tried a question between them and obtained a decision of a Court, to start that litigation over again on precisely the same questions."

If a formal record is unnecessary to raise a plea of res judicata in the strict sense, a fortiori a record is not needed to raise an issue estoppel on a finding not expressed in the ultimate decision in the trial ((66) Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR at 554.).

19. If there be any distinction between cases in which an issue estoppel has arisen out of a verdict and judgment of acquittal and the present case, the distinction must lie in the finality of a judgment of acquittal and the provisional character of an interlocutory
decision to exclude evidence. A decision that evidence is inadmissible against an accused is susceptible of recall during the trial and may, on that account, be regarded as provisional ((67) Reg. v. Watson (1980) 2 All ER 293.). But whether such a decision be treated as provisional so long as the trial is proceeding or as final though subject to recall during the trial, it is certainly a final
decision beyond recall once judgment is entered on a verdict determining the contested counts in the indictment ((68) Hunter v. Chief Constable (1982) AC 529 at 542; Bryant v. Collector of Customs
(1984) 1 NZLR at 284.). In Reg. v. Blair ((69) (1985) 1 NSWLR 584.), the Court of Criminal Appeal of New South Wales held that no issue estoppel could arise out of a ruling given in an aborted trial. It is unnecessary to consider whether that case was correctly decided, for the trial before Judge Phelan was not aborted and the ruling that the portions of the records of interview relied on by the Crown were inadmissible was, or became, a final ruling. Whether or not the Crown is able to appeal against the ruling, the ruling was, in the relevant sense, final ( (70) Bynoe v. Bank of England (1902) 1 KB 467 at 470.) .

20. In this case, the effect of a verdict and judgment of acquittal is not in question; the question is as to the effect of a finding, made for the purposes of a final ruling on admissibility of evidence that the accused did not voluntarily participate in the taking of records of interview parts of which were sought to be tendered in the earlier trial. The difficulty, as Dixon J noted in Blair v. Curran ((71) (1939) 62 CLR at 532-533.), is to distinguish between findings which, however deliberate and formal, concern only evidentiary facts and findings which concern facts that are necessarily involved in the decision as its legal foundation. At the conclusion of the voir dire, Judge Phelan made his ruling rejecting the relevant confessional statements. The finding of fact on which that ruling was legally founded and which was essential to the ruling was that Rogers had not participated voluntarily in the taking of the records of interview. I understand that finding to relate to the series of four records of interview, there being no distinguishing feature as to any one of them. Either immediately when the ruling was made or later when the ruling became final, the Crown was estopped from asserting that Rogers had participated voluntarily in the taking of the records of interview. In Rogers' forthcoming trial, none of those records of interview can be admitted in evidence. Unless the Crown adduces further evidence on counts 1, 4, 6 and 8, Rogers will be entitled to a verdict of acquittal by direction on those counts.

Abuse of process

21. In the Court of Appeal, it seems that the argument on abuse of process was that the Crown's proposed tendering of confessional evidence before Judge Kinchington was a collateral attack on the ruling of Judge Phelan. That was to mistake the nature of the proposed tender. There is nothing to suggest that the tender was for any purpose other than proof of the issues in the second trial. The ruling of Judge Phelan would be left untouched if the Crown succeeded in having the relevant, and different, parts of the records of interview admitted in evidence on the second trial.

22. There is no abuse of process in the bona fide prosecution of a person for a criminal offence ((72) Williams v. Spautz (1992) 174 CLR 509 at 535.). The tender of evidence that is probative of the offence charged is not an abuse of process merely because its admissibility is challenged. If the evidence is rejected, the trial simply proceeds without it. It may be that the launching of a prosecution without any
admissible evidence to support it would, dependent on the circumstances, warrant an inference that the prosecution is launched for some ulterior and improper purpose. If that were so, a stay to prevent an abuse of process might be called for ((73) See Barton v. The Queen (1980) 147 CLR 75 at 96-97. Jago v. District Court (N.S.W.) (1989) 168 CLR 23 at 45-46.). But that is not the present case. Here the trial should proceed to its conclusion, the objection by Rogers to the admissibility of the records of interview being upheld. Both the Crown and Rogers are entitled to a verdict on the issues joined by Rogers' plea of not guilty and no judge should stand in the way of obtaining a verdict ((74) Connelly v. Director of Public Prosecutions (1964) AC at 1304.). The submission that the trial before Judge Kinchington should be stayed as an abuse of process must be rejected.

23. For these reasons, I would conclude that the Court of Criminal Appeal was right to dismiss the appeal against Judge Kinchington's refusal to stay the proceedings. Judge Kinchington was asked to stay the proceedings on the grounds that the confessions contained in the records of interview were not admissible but his Honour declined to do so on Rogers' preliminary application for a permanent stay. However, the question of the effect of Judge Phelan's ruling on admissibility was central to the debate before Judge Kinchington and the Court of Criminal Appeal and it would have been within the powers of the Court of Criminal Appeal under s.5F of the Criminal Appeal Act to allow the appeal against Judge Kinchington's refusal to make a ruling excluding that evidence. It should have done so. I would therefore allow the appeal, set aside the order of the Court of Criminal Appeal and in lieu thereof allow the appeal to that Court and declare that the records of interview taken on 27 or 28 August 1988 are not admissible against the appellant on his trial on the indictment presented before Judge Kinchington.

DEANE AND GAUDRON JJ The appellant, Grahame Andrew Rogers, was interviewed by police in August 1988 in relation to a number of armed robberies ("the 1988 interview"). He made various admissions which were recorded in four separate typewritten documents or records of interview. He signed each of the documents and was later charged with a number of offences.

2. In 1989, the appellant stood trial in the District Court of New South Wales on four charges of armed robbery, the robberies in question having been the subject of confessional statements made during the 1988 interview. The relevant records of interview or, more accurately, two of them and relevant parts of the third ((75) The first two records of interview dealt with the first and second counts in the indictment respectively and the third (the fourth record actually signed by the appellant) dealt with the third and fourth counts and various other offences which were not charged in the indictment.) were tendered and objected to. The trial judge conducted a voir dire examination in which, to quote his Honour "the real issue" came "down to the voluntariness of the records of interview". In a context where the Crown bore the onus of proof on the balance of probabilities in relation to that issue, his Honour resolved it in favour of the appellant, holding that the appellant had not voluntarily participated in the making of the records of interview and thus, they were inadmissible. The trial proceeded and, in due course, the jury acquitted on the first and second counts and convicted on the third and fourth.

3. In 1992 the appellant was indicted on another eight charges of armed robbery. Of these, seven were the subject of confessional statements in the 1988 interview. The prosecution proposes to rely on those statements. One, a confessional statement in relation to a robbery at Bankstown Trotting Club, is contained in the fourth record of interview ((76) Strictly, this was the third record of interview signed by the appellant.), which was not relevant and, thus, was not tendered in the 1989 proceedings. The other six are contained in the third record of interview, parts of which were tendered on the third and fourth counts of the 1989 indictment.

4. The appellant moved for a permanent stay of the 1992 indictment. The motion came on for hearing immediately following his arraignment. The argument for the appellant was that, by reason of the 1989 ruling on admissibility, tender of the records of interview as proposed by the prosecution would be an abuse of process, or alternatively, there was an issue estoppel which precluded that course.

5. It is common ground that the 1989 ruling was made by reference to the circumstances surrounding the making and signing of all four records of interview and that the specific matters on which the ruling was based applied equally and still apply equally to each of them. Thus, so far as voluntariness is concerned, the simple fact is that the confessional statements involved in this case are no different from those which were ruled inadmissible in 1989.

6. It emerged during the hearing of the motion that, although the only evidence against the appellant on the first, fourth, sixth and eighth counts is the confessional material recorded during the 1988 interview, there is other evidence on the other counts. When this was made clear, the motion was treated as an application for a stay of proceedings on the former counts and for a declaration that the prosecution was not entitled to tender the records of interview on any of the other counts. The motion was dismissed. The Court of Criminal Appeal of the Supreme Court of New South Wales granted leave to appeal but dismissed the appeal. The appellant now appeals to this Court.

7. It is convenient to deal first with the question of issue estoppel. It is well settled, so far as civil proceedings are concerned, that, if a "judicial determination directly involv(es) an issue of fact or of law ... that (issue) cannot afterwards be raised between the same parties or their privies" ((77) Blair v. Curran
(1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR 537 at 561 where Higgins J (dissenting) first used the term "issue- estoppel". With regard to the development of the doctrine in English law, see Thoday v. Thoday (1964) P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler
Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue estoppel" as it is generally called, is different from "res judicata" or "cause of action estoppel" which occurs when a cause of action passes into judgment so that "it is merged and has no longer an independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.) and "no other proceedings can thereafter be maintained on (it)" ((79) Jackson v. Goldsmith (1950) 81 CLR 446 at 466. See also Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 147 CLR 589 at 597; Chamberlain v. Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507.). The rule with respect to res judicata or cause of action estoppel is embodied in the Latin maxim transit in rem judicatam.

8. It was said by Fullagar J in Jackson v. Goldsmith that res judicata or cause of action estoppel is "not ... correctly classified under the heading of estoppel at all", but "is a broad rule of public policy based on the principles expressed in the maxims `interest reipublicae ut sit finis litium' and `nemo debet bis vexari pro eadem causa'". His Honour went on to say that issue estoppel was, in his view, "a true case of estoppel, analogous to estoppel by deed and estoppel by representation" ((80) (1950) 81 CLR at 466.).

9. It will later be necessary to say something of the distinction drawn by Fullagar J between issue estoppel and res judicata or cause of action estoppel. It is convenient, before doing so, to say something of the Latin maxims to which his Honour referred. The first expresses the need, based on public policy, for judicial determinations to be final, binding and conclusive. The second looks to the position of the individual and reflects the injustice that would occur if he or she were required to litigate afresh matters which have already been determined by the courts. It is correct to say that res judicata or cause of action estoppel derives from the principles embodied in those maxims, which principles are fundamental to any civilized and just judicial system. There is, however, another related principle, likewise fundamental, which is embodied in the Latin maxim res judicata pro veritate accipitur. That maxim gives expression to a rule of Roman law which has since been recognized as part of our common law. It expresses the need for decisions of
the courts, unless set aside or quashed, to be accepted as incontrovertibly correct. The same idea was expressed in Coke's Institutes in terms of the "incontrollable credit and veritie" of the records and memorials of the judges of the courts of record, which "admit no averment, plea or proofe to the contrarie" ((81) 2 Co. Littl. 260(a).). That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice ((82) As to the necessity for courts to conduct their proceedings with this end in view, see Connelly v. DPP (1964) AC 1254 at 1353.).

10. From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against "the scandal of conflicting decisions" ((83) Spencer Bower and Turner, The Doctrine of Res Judicata, 2nd ed. (1969) at 411.). Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud ((84) See, for example, Hunter v. Chief Constable of the West Midlands Police (1982) AC 529 at 541, 544-545 per Lord Diplock; Bryant v. Collector of Customs (1984) 1 NZLR 280 at 284-285.).

11. As earlier indicated, there is a real distinction between issue estoppel and res judicata or cause of action estoppel ((85) See fns (78) and (79).). That distinction was recently reaffirmed by this Court in Chamberlain v. Deputy Commissioner of Taxation ((86) (1988) 164 CLR at 507-508. See also Tanning Research Laboratories Inc. v. O'Brien (1990) 169 CLR 332 at 345-346.). But in our view, the distinction does not depend on issue estoppel being a true estoppel and res judicata being a manifestation of the policy considerations embodied in the Latin maxims identified by Fullagar J in Jackson v. Goldsmith. If issue estoppel is confined to an issue of fact or law directly involved in a judicial determination, as was said in Blair v. Curran ((87) (1939) 62 CLR at 531 per Dixon J), to a matter which has been put in issue and determined, as was said in Outram v. Morewood ((88) (1803) 3 East 346 at 355 per Lord Ellenborough CJ (102 ER 630 at 633).), or to an essential element in a cause of action or defence in proceedings in which judgment has been entered, as was said in Mills v. Cooper ((89) (1967) 2 QB 459 at 468 per Diplock L.J) - and we understand the effect of the joint judgment of Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v. Anshun Pty. Ltd. ((90) (1981) 147 CLR at 604.) to be that it is confined to such issues - then, it is justified by the same policy considerations that give rise to res judicata or cause of action estoppel. In our view, it ought now be seen, not as a true estoppel, but as a different manifestation of those same policy considerations. Indeed that is the view that was taken by Diplock LJ in Mills v. Cooper ((91) (1967) 2 QB at 469.) and accepted as correct by Viscount Dilhorne and Lord Hailsham of St. Marylebone in Reg. v. Humphrys ((92) (1977) AC 1 at 19-20, 21 per Viscount Dilhorne, 39-40 per Lord Hailsham.).

12. Of course, there may be true estoppels which prevent a person from raising an issue bearing on a matter to be judicially determined. An estoppel of that kind may come about because of the way in which proceedings have been conducted with the result that the issue cannot thereafter be raised in those proceedings or on appeal ((93) See, for example, Banque Commerciale S.A., en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR 279 at 284 per Mason CJ and Gaudron J and the cases there cited. See also Calin v. Greater Union Organisation Pty. Ltd. (1991) 173 CLR 33 at 45 per Brennan J; Van Gervan v. Fenton (1992) 175
CLR 327 at 351 per Gaudron J). And if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.

13. Considerations bearing on estoppel resulting from the failure to raise some issue which could reasonably have been raised in earlier proceedings have sometimes been conflated with considerations relevant to the various principles aimed at ensuring the final, binding and conclusive nature of judicial determinations. This seems to have been the case with the so-called "extended principle" in Henderson v. Henderson ((94) (1843) 3 Hare 100 at 115 (67 ER 313 at 319).) which would allow that:

"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".

It is clear that that principle, if it be one, is to be treated with caution ((95) Port of Melbourne Authority v. Anshun Pty. Ltd. (1981)
147 CLR at 598-599.).

14. It may be that some cases of true estoppel resulting from the failure to raise a matter which could reasonably have been raised in earlier proceedings will also prove, on analysis, to involve an impermissible challenge to the incontrovertible correctness of the judgment given in those proceedings. Indeed, there seems to have been a conjunction of that kind in Port of Melbourne Authority v. Anshun Pty. Ltd. ((96) ibid. at 602-604 per Gibbs CJ, Mason and Aickin JJ). However, in our view, estoppel is separate and distinct from the principles which secure the final, binding and conclusive nature of judicial determinations and their conflation can only result in confusion.

15. The question whether there is any room in criminal proceedings for issue estoppel of the kind that has developed in civil proceedings was considered by this Court in Reg. v. Storey ((97) (1978) 140 CLR 364.), some few months after the House of Lords considered the same question in Reg. v. Humphrys. It was held in Humphrys that issue estoppel has no application in criminal proceedings. The same view was taken by Barwick CJ, Gibbs and Mason JJ in Storey, whilst the other members of the Court considered that there were some situations, albeit rare and strictly circumscribed, in which there might be an estoppel in favour of an accused ((98) ibid. at 372 per Barwick CJ, 388 per Gibbs J, 400-401 per Mason J, 413-414 per Murphy J, 416-417 per Aickin J (with whom Stephen J concurred).). It should be noted, however, that Jacobs J preferred not to use the expression "issue estoppel" and proceeded on the basis that the rule in question was an aspect of the rule against double jeopardy which, in his Honour's view, extended beyond the plea of autrefois acquit and included the situation where "the commission of the first offence can be shown to be an essential element of the second offence charged ... whether or not the plea of autrefois acquit be open" ((99) ibid. at 407. Note, his Honour gave the following example of a situation in which the principle would operate even though the plea of autrefois acquit would not be available: "if there had been an acquittal of rape, and then the woman had died, the defendant could not be convicted of murder upon
evidence that, in the course of committing the felony of
rape, he had killed the woman", that being the converse of the situation considered in Mraz v. The Queen (No.2) (1956)
96 CLR 62.). Thus, only three members of the Court, namely, Stephen, Murphy and Aickin JJ, can be regarded as accepting that issue estoppel of the kind recognized in civil proceedings is also applicable in criminal proceedings. And, even then, there is nothing in their Honours' judgments to suggest that, as between civil and criminal proceedings, there is a complete analogy, or even substantial similarity, as to the circumstances in which issue estoppel can operate.

16. It was emphasized in Humphrys that there is a distinction between issue estoppel and the pleas of autrefois acquit and autrefois convict ((100) (1977) AC at 15-16 per Viscount Dilhorne, 33-34 per Lord Hailsham, 44 per Lord Salmon, 52 per Lord Edmund-Davies.). The distinction, at least so far as it concerns autrefois acquit, requires further consideration. Autrefois acquit and autrefois convict are often seen as different sides of the same coin ((101) See Spencer Bower and Turner, op.cit. at 268-269.). To some extent they are: to the extent that they prevent the prosecution of crimes for which an accused has either been acquitted or convicted, they prevent inconsistent decisions and serve to maintain the principle embodied in the maxim res judicata pro veritate accipitur. Beyond that, however, they reflect quite different considerations. Autrefois convict is the application in criminal proceedings of the doctrine of merger which gives rise to res judicata or cause of action estoppel in civil proceedings;
autrefois acquit operates within its confines to prevent the prosecution from asserting the contrary of what has previously been judicially determined in favour of an accused ((102) As to this distinct aspect of autrefois acquit, see Mills v. Cooper (1967) 2 QB at
468-469. See also Connelly v. DPP (1964) AC at 1334 per Lord Hodson, 1365 per Lord Pearce; Reg. v. Humphrys (1977) AC at 32-33 per Lord Hailsham. And see generally Friedland, Double Jeopardy, (1969) at 94-95. Note that it is sometimes said that Reg. v. King (1897) 1 QB 214 is an example of autrefois convict operating as an estoppel,
although the better explanation would seem to be that of
inconsistent verdicts.). In this respect, autrefois acquit is analogous to issue estoppel in civil proceedings, although it clearly operates within a more limited area. In large part, that is the result of the different character of civil and criminal proceedings and the difficulty involved in identifying precisely what, besides guilt or innocence, has been determined by the jury's verdict ((103) See, for example, Reg. v. Storey (1978) 140 CLR at 374 per Barwick CJ, 379-380 per Gibbs J, 400 per Mason J).

33. I see no difficulty, however, in extending the doctrine of abuse of process to a case where the facts are analogous to those in Bryant. If, for practical purposes, a finding on an issue was determinative of the outcome of proceedings, it would accord with the rationale of the doctrine of abuse of process to preclude the relitigation of that finding even though no issue estoppel arises. In civil cases, the losing party will always have a right of appeal against the initial ruling. In criminal cases, the accused will also have a right of appeal against such a ruling, and in many jurisdictions the Crown has the right to test adverse rulings that have resulted in the acquittal of the accused.

34. The present case, however, is not analogous to Bryant. The third record of interview was not before Phelan DCJ in 1989. It was not the subject of any ruling in those proceedings. Its absence played no part in the determination of any verdict in 1989. The admission into evidence of the third record of interview therefore would not be an abuse of process.

The fourth record of interview

35. I am also of the opinion that it would not be an abuse of process for the Crown to tender the fourth record of interview. That record was tendered before Phelan DCJ in support of the third and fourth counts at the 1989 trial. Although his Honour rejected the tender of the record of interview on the ground that it was not made voluntarily, the appellant was convicted on those two counts by reason of other evidence. In the present case, the Crown wishes to tender the fourth record to prove admissions concerning the first, second, third, fifth, sixth and eighth counts of the current indictment. None
of the charges in those counts were before Phelan DCJ If the fourth record of interview is admitted into evidence in the current
proceedings, it will certainly conflict with the ruling of Phelan DCJ that it was not made voluntarily. But the admission of the fourth record of interview cannot undermine any acquittal of the accused. It has nothing to say about the two counts on which the accused was acquitted in 1989. Furthermore, for the reasons that I have given in respect of the third record of interview, a ruling that the fourth record was made voluntarily says nothing about the two offences on which the accused was acquitted in 1989 and which were the subject of the first and second records of interview.

36. If the fourth record of interview was admitted into evidence at the proposed trial, all it could do in relation to the earlier proceedings would be to confirm that the accused was guilty of the two offences of which he was convicted in those proceedings. If the tender of the fourth record of interview would be an abuse of process, it would follow that, if an accused person obtains a favourable ruling in a criminal trial, it is an abuse of process for the Crown to lead any evidence in another trial to challenge that finding even if, despite the ruling, the accused was convicted at the original trial. That proposition goes beyond anything that has hitherto been regarded as an abuse of process. Moreover, for the reasons that I have given, both the requirements of justice and the need to ensure that litigation is conducted as efficiently and as quickly as possible make a powerful case for refusing to change the established rules.

37. It follows that the tender of the fourth record of interview at
the proposed trial would not be an abuse of process.

Order
38. In my opinion the appeal should be dismissed.