South Australia Police v Hill

[2022] SASCA 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SOUTH AUSTRALIA POLICE v HILL

[2022] SASCA 22

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell, the Honourable Justice Livesey, the Honourable Justice Doyle and the Honourable Justice Blue)

22 March 2022

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY

The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019.

The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020.

The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.

The Police appeal against the orders permitting the respondent to withdraw his guilty pleas to, and dismissing, the two counts on the ground that the Magistrate erred in ruling that each pair of charges involved impermissible double charging.

The appeal raises two issues. First, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?

Held by the Court (allowing the appeal):

1(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).

(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).

2(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).

(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).

3(Per Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA) The appeal should be allowed and, subject to hearing the parties, a conviction recorded on the two counts dismissed by the Magistrate with no alteration to the sentence imposed by the Magistrate under section 26 of the Sentencing Act 2017 (at [174] per Lovell and Livesey JJA and Blue AJA (Kourakis CJ and Doyle JA agreeing)).

Acts Interpretation Act 1915 (SA) s 30; Crimes Act 1914 (Cth) s 20; Criminal Code (Qld) ss 339, 343, 344, 352, 419, 564; Criminal Code (WA) ss 392, 582; Criminal Law Consolidation Act 1935 (SA) ss 5, 5AA, 19a, 20, 23, 63A; Criminal Procedure Act 1921 (SA) ss 49, 100, 181; Customs Act 1901 (Cth) ss 233B, 235; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Marine Pollution Act 1987 (NSW) ss 26, 27; Sentencing Act 2017 (SA) ss 10, 11, 26; Serious Sex Offenders Monitoring Act 2005 (Vic) s 40; Young Offenders Act 1993 (SA) s 26, referred to.
DAT v Police (2002) 83 SASR 237; F, BV v Magistrates Court of South Australia & Anor (2013) 115 SASR 232; Gillespie v The State of Western Australia [2013] WASCA 149; Glouftsis v Police (2014) 120 SASR 420; Herpich v Martin [1995] 1 Qd R 359; Island Maritime Limited v Filipowski; Kulkarni v Filipowski (2006) 226 CLR 328; Kingswell v The Queen (1985) 159 CLR 264; LeCornu v The Queen (2012) VSCA 137; Loader v The Queen (2011) 33 VR 86; Maple v Kerrison (1978) 18 SASR 513; Pearce v The Queen [1998] 194 CLR 610; Rogers v The Queen (1994) 181 CLR 251; Ross v The Queen (1979) 141 CLR 432; R v Barron [1914] 2 KB 570; R v Bright [1916] 2 KB 441; R v Clark (1820) 1 Brod & B 473; R v Courtie [1984] AC 463; R v Elrington (1861) 1 B & S; R v Emden (1808) 9 East 437; R v Graham [2016] QCA 73; R v Hietanen (1989) 51 SASR 510; R v Miles (1890) 24 QBD 423; R v O’Loughlin, ex parte Ralphs (1971) 1 SASR 219; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; R v Taylor (2010) 203 A Crim R 302; R v Tilley (2009) 105 SASR 306; R v W (2015) 123 SASR 70; The Queen v Meaton (1986) 160 CLR 359; Wemyss v Hopkins (1875) LR 10 QB 378, considered.

SOUTH AUSTRALIA POLICE v HILL
[2022] SASCA 22

Court of Appeal – Criminal:  Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA

1. KOURAKIS CJ:  The common law principles governing pleas in bar evolved incrementally over time.  Their development was influenced by a range of legal policy considerations.  When the death penalty was the only, or most common sentence, imposed on conviction of felony, the common law was concerned not to place a defendant’s life in jeopardy on multiple occasions.  In more recent times the rationale for the rule against double jeopardy has been rooted in concerns about the abuse of the executive’s power to prosecute in order to harass and oppress citizens and the increased risk of a wrongful conviction posed by multiple prosecutions.[1]  Those concerns were more acute when indictments were brought directly by the Crown and were not mediated by the professional and institutional independence of prosecutors which developed in the 20^th century.  Moreover, the nature of a criminal trial initiated as it is, with the bare pleading of an indictment and concluded by the inscrutable verdict of a jury, obscures the factual issues determined by that verdict.  Unsurprisingly, clear statements of a coherent principle which is capable of universal application are therefore difficult to find.[2]

   [1]     Pearce v The Queen [1998] 194 CLR 610 at [10].

   [2]     Pearce v The Queen [1998] 194 CLR 610 at [14].

2. After the reduction in the number of capital offences, and with the proliferation of statutory offences, it became necessary to rationalise the rules governing pleas in bar.  This Court essayed that complex task in 1971 in R v O’Loughlin, ex parte Ralphs.[3]  Several decades later the High Court laid down principles which focussed more strictly on the elements of the offence to which the plea in bar is made and the earlier charge on which it is founded instead of the substantial similarity between the factual circumstances of the offences.

   [3]     The Queen v O’Loughlin, ex parte Ralphs (1971) 1 SASR 219 at 247 (Wells J). Pearce v The Queen [1998] 194 CLR 610 at [11]-[13].

3. In Pearce v The Queen, Gummow, Kirby, Hayne and Callinan JJ held that:[4]

   [18]It is clear that the plea in bar goes to offences the elements of which are the same as[5], or are included in[6], the elements of the offence for which an accused has been tried to conviction or acquittal.

   [Italics added]

   [4]     Pearce v The Queen (1998) 194 CLR 610.

   [5]     R v Emden (1808) 9 East 437 [103 ER 640]; R v Clark (1820) 1 Brod & B 473 [129 ER 804].

   [6]     R v Elrington (1861) 1 B & S 688 [121 ER 870].

4. Whether the words ‘or are included in’ were meant to limit the plea in bar to subsequent charges for a greater offence was later considered in Island Maritime Limited v Filipowski; Kulkarni v Filipowski.[7]  Gleeson CJ, Heydon and Crennan JJ considered but dismissed on extension of that principle to all cases in which both offences arise out of substantially the same facts.

   [7]     Island Maritime Limited v Filipowski; Kulkarni v Filipowski (2006) 226 CLR 328.

   [20]In each of Chia Gee v Martin[8] and Li Wan Quai v Christie[9], Griffith CJ identified the test for whether a plea in bar would lie as being ‘whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first’[10]. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

   …

   [22]In this respect Wemyss is capable of being misunderstood. Wemyss had been convicted at petty sessions of an offence that being the driver of a carriage he had ‘by negligence or wilful misbehaviour, to wit, by striking a certain horse ridden’[11] by the respondent caused hurt and damage to her. He was then charged (again at petty sessions) with unlawful assault. The court held that, the offences being summary offences, a plea of autrefois convict was not available but that a defence ‘in the nature of a plea of autrefois convict’[12] was. The judgments of the members of the court (which were given ex tempore) use various expressions which have later been seized on as sufficiently expressing the test of the availability of a plea in bar.

   [23]… The inquiry made in Wemyss was an inquiry about the offences that had been alleged, not about what other offences the relevant statutes might create. Thus the case against Wemyss on the first prosecution appears to have been[13] not a case of negligent conduct but one of ‘wilful misbehaviour’ constituted by his intentionally striking the victim’s horse. That being so, the court was satisfied that the case propounded on the second prosecution was identical with the case propounded on the first.

   [24]On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.

   [Footnotes in original]

   I observe here that it is implicit in the reasoning in [23] that had Wemyss’ earlier conviction been for negligently, but not intentionally, driving the carriage, the plea in bar to the subsequent charge of assault would not have been upheld even though the objective facts, were the same.  Furthermore, even though the elements of the assault charge, wilful conduct causing harm, were included in the former conviction, the element of being a driver was not an element of the assault.  It would be surprising if the order of the charges in Wemyss should lead to a different result and there does not appear to be any reason why Wemyss should not have been convicted of both offences.  A driver of a carriage may be thought to be in a position of special responsibility making an assault committed in that capacity more culpable.

   [8] (1905) 3 CLR 649.

   [9] (1906) 3 CLR 1125.

   [10]   Chia Gee v Martin (1905) 3 CLR 649 at 653; Li Wan Quai (1906) 3 CLR 1125 at 1131. See also Ex parteSpencer (1905) 2 CLR 250 at 251, per Griffith CJ; Paley’s Law and Practice of Summary Convictions, 5th ed (1866), p 145; Broom, A Selection of Legal Maxims, 4th ed (1864), p 341.

   [11]   Wemyss (1875) LR 10 QB 378 at 379.

   [12]   Wemyss (1875) LR 10 QB 378 at 381, per Blackburn J.

   [13]   Contrary to the analysis made by Wells J in R v O’Loughlin (1971) 1 SASR 219 at 260-261.

5. In Filipowski[14] Gleeson CJ, Heydon and Crennan JJ went on to consider the criticisms made by counsel in that case of the paragraph of the plurality judgment in Pearce cited above:

   [14] (2006) 226 CLR 328 at [18].

   [26]Counsel for the respondent attacked one aspect of Pearce v The Queen.  It was the part of the following passage in the joint judgment to which emphasis has been added[15]:

   [15] (1998) 194 CLR 610 at 616 [18] per McHugh, Hayne and Callinan JJ (footnotes omitted).

   ‘It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.’

   Counsel said that the words ‘are included in’ should have been ‘include’.  When the passage is read in context, however, it is plain that the proposition which counsel for the respondent said the reasons for judgment should have asserted was in fact encompassed in what was said in Pearce v The Queen.  There are three particular aspects of the context to note.

   [27]One aspect of the context is that the words ‘are included in’ were succeeded by a footnote reference to R v Elrington[16].  In that case the accused was charged on information with common assault.  He was acquitted by justices of the peace, who certified that the information was not proved and was dismissed.  The accused was then prosecuted on indictment for assault causing grievous bodily harm and assault causing actual bodily harm.  The Court of Queen’s Bench (Cockburn CJ and Blackburn J) held that the relevant statute meant that the certificate could be pleaded in bar to the indictment.  However, the significance of the case goes beyond the operation of the statute, for Cockburn CJ remarked[17]:

   ‘[W]e must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.’

   The elements of assault causing grievous bodily harm are not ‘included in’ the elements of common assault, but the former elements do include the latter.

   [28]The second matter of context is the statement appearing a little later in the joint judgment in Pearce v The Queen[18]:

   ‘[T]here are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.’

   R v Elrington was a case of that kind.

   [29]A third feature of the context is that in the footnote appearing next after the reference to R v Elrington, the joint judgment referred approvingly to Li Wan Quai v Christie[19].  The explanation given of Griffith CJ’s formulation of the test in that and other cases a little later in the joint reasons is consistent with the view that the joint judgment favoured acceptance of the plea of autrefois acquit where the elements of the offence charged second are the same as, or include, the elements of the offence charged first.

   [Footnotes in original]

   [16] (1861) 1 B & S 688 [121 ER 870].

   [17]   R v Elrington (1861) 1 B & S 688 at 696 [121 ER 870 at 873].

   [18] (1998) 194 CLR 610 at 618 [24] per McHugh, Hayne and Callinan JJ.

   [19] (1906) 3 CLR 1125 at 1131.

6. Despite expressing their preference to read paragraph [18] of the Pearce judgment strictly, ultimately their Honour’s declined to express a definitive conclusion:

   [30]As the joint judgment pointed out, when Griffiths CJ said in Li Wan Quai v Christie[20] that ‘[t]he true test whether [a plea of autrefois acquit] is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first’, his reference to ‘evidence’ must be understood as a reference to the facts constituting the elements of the offence[21].  One thing is clear.  Griffith CJ was referring to a case, like R v Elrington, where the offence the subject of the second charge was, to use the words of Cockburn CJ, a more aggravated form of the offence the subject of the first charge.  In the passage from Li Wan Quai v Christie just quoted, which was cited in Pearce v The Queen, Griffith CJ referred to the 21st edition of Archbold’s Criminal Pleading.  His statement of the ‘true test’ was taken directly from Archbold[22], which, in turn, referred[23] to R v Elrington.  It cannot be that Pearce v The Queen was contradicting the propositions stated by Cockburn CJ and Griffith CJ.  For our part, however, we find it unnecessary to decide whether the principle is wider than that stated in the older authorities, and whether it also covers a case in which the first prosecution was for the more aggravated form of offence and the second is for a lesser form.  Such a case would be the reverse of that referred to by Cockburn CJ and Griffith CJ.  These questions do not arise for decision.

   [Footnotes in original]

   Gummow and Hayne JJ (with whom Callinan J relevantly agreed) did state the principle more widely:

   [40]The passage in the joint reasons upon which the appellants argument fastened must be read in the context of the reasons as a whole.  Pearce held that a plea in bar is available, or, in courts of summary jurisdiction, an equivalent rule is applied, in cases ‘in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other’[24].  The order in which the charges are preferred does not affect the availability of the plea, or the applicability of the equivalent rule.  It is as well to say more about why that is so.

   [Underlining added, footnote in original]

   [20] (1906) 3 CLR 1125 at 1131.

   [21] (1998) 194 CLR 610 at 617 [20]: ‘the inquiry suggested ... is an inquiry about what evidence would be sufficient to procure a legal conviction.  That invites attention to what must be proved to establish commission of ... the offences.  That is, it invites attention to identifying the elements of the offences ....’ (emphasis in original).  See also Ostrowski v Palmer (2004) 218 CLR 493 at 501-503 [5]-[10] per Gleeson CJ and Kirby J.

   [22]   At 148.

   [23]   At 149.

   [24] (1998) 194 CLR 610 at 618 [24] per McHugh, Hayne and Callinan JJ, 628 [63] per Gummow J.

7. Gummow and Hayne JJ explained the rationale for that rule both in jury trials, and trials by judge (or magistrate) alone as follows:

   [41]‘Double jeopardy’ is an expression that is not always used with a single meaning.  It is an expression used in relation to several different stages of the process of criminal justice: prosecution, conviction and punishment.  It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning.  The essence of these values is most often seen as captured in three maxims:  interest reipublicae ut sit finis litium (it is in society’s interest that there be an end to litigation), res judicata pro veritate accipitur (what is adjudicated is taken as the truth), and nemo debet bis vexari pro una et eadem causa (no one should twice be vexed for one and the same cause).  It is these values that underpin the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal[25].  It is these values that inform the rules governing successive prosecutions – rules which find their origins in the pleas in bar of autrefois convict and autrefois acquit but now have wider application than those pleas in bar.

   [25]   Garrett v The Queen (1977) 139 CLR 437 at 445; Rogersv The Queen (1994) 181 CLR 251 at 277-278; R v Carroll (2002) 213 CLR 635.

   [42]Principles governing the availability of a plea in bar of either autrefois convict or autrefois acquit were developed and applied in courts of record.  As Deane and Gaudron JJ pointed out in Rogers v The Queen[26], ‘[a]utrefois 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’.  Just as judgment of a court of record in a civil action changes the cause of action to a matter of record[27], conviction in a court of record in respect of a criminal offence brings about ‘the substitution of a new liability’[28].  As Gummow J noted in Pearce[29], this principle of merger is connected with, but distinct from, the principles encapsulated in the three maxims cited earlier.  Those principles are of fundamental importance to the structure and operation of our legal system.

   [43]The plea of autrefois acquit ‘is the species of estoppel by which the Crown is precluded from reasserting the guilt of the accused when that question has previously been determined against it’[30].  It is a plea that prevents the relitigation of matters already determined in favour of the accused.  Like the plea of autrefois convict, the plea of autrefois acquit prevents inconsistent decisions, serves to maintain the acceptance of orders and other solemn acts of the courts as incontrovertibly correct, and avoids the injustice occasioned by the relitigation of what has already been determined.  But until more recent times, the pleas of autrefois acquit and autrefois convict ‘remained the only manifestations of the rule against double jeopardy’[31].  As the criminal law has become more complex, and as the number of offences that may be dealt with summarily has increased, questions of double jeopardy have taken on greater significance.  When criminal offences were relatively few and distinct, a single course of conduct would constitute but one offence.  With the proliferation of overlapping and related statutory offences, a single allegedly criminal transaction will often yield numerous offences[32].

   [44]That it is the values of double jeopardy that inform the rules about double prosecutions is most easily demonstrated by reference to summary prosecutions.  First, a conviction in a court of summary jurisdiction does not invoke doctrines of merger by which there is the substitution of a new liability.  The principles that are to be applied in considering cases of successive prosecutions in a court of summary jurisdiction are developed by analogy with the principles that govern the availability of pleas in bar in a court of record.  They draw upon the values encompassed in the expression double jeopardy[33].

   [45]Secondly, and no less importantly, a conviction or acquittal in a court of summary jurisdiction will be explained and supported by reasons.  The bases on which a court of summary jurisdiction has acquitted or convicted of a charge are thus ascertainable.  That is not always so when there has been trial by jury.  No doubt a jury’s verdict of guilt is to be understood as expressing the jury’s satisfaction, beyond reasonable doubt, of all of the elements of the charge.  But a jury’s verdict of not guilty is entirely unrevealing.  The most that it can be taken as showing is that the jury was not satisfied beyond reasonable doubt that all of the elements of the relevant charge had been established.  It will not reveal which element or elements were not established or why that was so.

   [46]The inscrutability of a jury’s verdict of not guilty may be a sufficient basis for considering the availability of a plea in bar to a later prosecution on a basis that would interpret the jury’s verdict in the earlier case in the way that is most favourable to the accused.  If that is done, the earlier verdict may be understood as yielding an estoppel or preclusion against proof of any of the elements of the charge of which the accused was acquitted.  But if that is so, it would yield a rule that would allow a plea of autrefois acquit in any case where any of the elements of the first charge preferred against the accused was included in the elements of the second charge.  The premises so far identified would not yield a rule confining autrefois acquit to cases where all the elements of the first charge preferred are included in the second charge.

   [47]If the rule that is to be applied stems only from the inscrutability of a jury’s verdict, and assumptions that are made about the jury’s findings, the ultimate reason for such a rule would have no application in cases of summary prosecution.  The rule to be applied in summary prosecutions is analogous to the rules governing the availability of the pleas in bar but it must be applied where the basis for the disposition of the former prosecution is ascertainable.

   [48]Further, the history of the application of the pleas in bar reveals that the plea of autrefois acquit is not based only in the inscrutability of a jury’s verdict of ‘not guilty’.  Rather, as is revealed by cases like Wemyss v Hopkins[34], R v Elrington[35], and, in this Court, Chia Gee v Martin[36] and Li Wan Quai v Christie[37], as well as the course of decisions in the Supreme Court of the United States[38] about the application of the double jeopardy clause of the Fifth Amendment, the problem has always been seen as a more deep seated and complex question than may be answered by reference only to the inscrutability of a jury’s verdict of not guilty.

   [49]No doubt a plea in bar is available if the offence charged second is the same offence as was the subject of an earlier conviction or acquittal.  But the pleas in bar are not confined to cases of identical charges.  As was noted in Pearce[39], Li Wan Quai  expressed[40] the relevant test (as did other earlier cases[41]) as being whether the first prosecution was for an offence ‘substantially the same’ as the second offence charged.  Expressing the test in this way presented further questions.  In particular, what was meant by ‘substantially the same’?  As the course of United States’ decisions reveals[42], to treat the test of ‘sameness’ as requiring identity (or substantial identity) between the evidence that had to be led in support of the two charges produces a rule that is unstable in application.  Rather, as the course of decisions in this Court, up to and including the decision in Pearce, reveals, the relevant test must be framed by reference to the elements of the offences under consideration.  But recognising that the test of ‘sameness’ requires examination of the elements of the two offences in question, rather than of the evidence that may be offered in proof of each, does not reveal the extent of the overlap that is to be required if the test is to be met.  Rather, to identify the content of the test of ‘sameness’ of two offences, when expressed by reference to the elements of those offences, it is necessary to consider the principles and values that underpin both the availability of a plea in bar of autrefois acquit and the application of an analogous principle in cases in summary jurisdiction.

   [50]To confine autrefois acquit (and the analogous principle) to cases where all the elements of the first offence are elements of the second offence would treat the plea as no more than a species of preclusion.  The preclusion would be confined to the elements of the first offence and would proceed from the assumption that the prosecution was to be taken to have failed to establish any of those elements.  It would be a rule of preclusion closely analogous to, if not identical with, the principles of issue estoppel applied in civil cases.  So to confine autrefois acquit, and the analogous principle, would entail the further conclusion that the preclusion thus provided was a sufficient satisfaction of the values of double jeopardy identified earlier – the public interest in finality, the avoidance of conflicting decisions (by accepting curial decisions as incontrovertibly correct), and the injustice to the individual of requiring relitigation.  But those are values that are not met by treating autrefois acquit (or the analogous principle) as no more than a particular species of issue estoppel.

   [Footnotes in original]

   [26] (1994) 181 CLR 251 at 276‑277.

   [27]   Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 606.

   [28]   R v Wilkes (1948) 77 CLR 511 at 519.

   [29] (1998) 194 CLR 610 at 625 [53]-[54].

   [30]   Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) at 311.

   [31]   Jill Hunter, ‘The Development of the Rule Against Double Jeopardy’, (1984) 5(1) Journal of Legal History 3 at 14.

   [32]   Ashe v Swenson 397 US 436 at 445 (1970).

   [33]   See, for example, Flatman v Light [1946] KB 414 at 419.

   [34] (1875) LR 10 QB 378.

   [35] (1861) 1 B & S 688 [121 ER 870].

   [36] (1905) 3 CLR 649.

   [37] (1906) 3 CLR 1125.

   [38]   In particular, Ex parte Nielsen 131 US 176 (1889); Blockburger v United States 284 US 299 (1932); Brown v Ohio 432 US 161 (1977); Grady v Corbin 495 US 508 (1990); United States v Dixon 509 US 688 (1993).

   [39] (1998) 194 CLR 610 at 616 [18].

   [40] (1906) 3 CLR 1125 at 1131.

   [41]   For example, Wemyss v Hopkins (1875) LR 10 QB 378 at 381 (the ‘same matter’).

   [42]   Especially, Grady v Corbin 495 US 508 (1990) and United States v Dixon 509 US 688 (1993).

1. I acknowledge that the above passages focus primarily, but not exclusively on autrefois aquit but that reflects the particular plea made in Filipowski and there is no suggestion that the rule would not apply generally to either of the pleas in bar. Their Honours then explained why a plea in bar is available whether the basic or aggravated form of the offence is first charged:

   [52]The values embraced by notions of double jeopardy require that autrefois acquit and analogous principles are given no narrow operation.  In particular, neither the plea in bar nor the analogous principle applied in summary jurisdiction is to be confined to precluding the prosecution from controverting one or more elements of an offence charged first where the elements of that first offence are wholly included in the second.  To demonstrate why that is so, it is convenient to proceed by reference to an example.

   [53]If an aggravated form of offence is charged first, and the accused is acquitted of that offence by a jury, it will not be possible to discern from that verdict whether the jury was not satisfied of one or more of the elements constituting the unaggravated offence, or was not satisfied of the element or elements of aggravation.  (By contrast, in a court of summary jurisdiction, the basis for the acquittal can be identified from the reasons given.)  May the accused be put at risk of conviction for the lesser, unaggravated, form of the offence at a subsequent trial?

   [Footnotes in original]

2. The principles their Honours laid down may be expressed in short form as follows:

   1.A charge of an offence with elements ABC precludes a charge of an offence with elements ABCD as does the converse.

   2.A charge of an offence with elements ABC does not preclude a charge of an offence with elements ABD.

3. I would emphasise the relevant test therefore is whether the elements of either one of the charged offences include the elements of the other.  It is not whether the conduct element alone is the same for both offences.  Attendant circumstances and consequences are equally elements of an offence.

4. The reasons of the plurality in Pearce, are consistent with, even if they fall short of an unambiguous statement of the rule articulated in [40] of the judgment of Gummow and Hayne JJ in Filipowski. Gleeson CJ, Heydon and Crennan JJ did not express a final opinion on the question.  Nor does their Honours’ judgment disclose any reason to doubt the correctness of the principle articulated by Gummow and Hayne JJ.  That principle explains and rationalises most of the precedents on this issue and accommodates the underlying rationale of the double jeopardy rule within the contemporary context of overlapping statutory offences. Reading the reasons of the plurality in Pearce as a whole and having regard to the analysis of Gummow and Hayne JJ, I feel bound to proceed on the basis of the rule so stated.

5. The decisions in Maple v Kerrison[43], DAT v Police,[44] Loader v The Queen[45] and LeCornu v The Queen[46] do not cast any doubt on the principle. The first two decisions concern statutory provisions which create an offence of breaching a court order to be of good behaviour and the last two of breaching a court order by committing a prescribed offence. A condition to be of good behaviour is breached, if not exclusively, almost always by, committing an offence. The statutory provisions considered in those cases were enacted as adjuncts to sentencing provisions or orders made for the supervision of high risk offenders.  In so doing the legislature could not have intended that an offender, subject to a community based sentencing order, or high risk offender supervision order, could only be convicted of, either the substantive offence, or the offence of breaching the order, but not both.  It follows that by the statutory provision enacting the breaching offence, the legislature, by necessary implication, abrogated the common law double jeopardy principle to the extent necessary to allow convictions on both offences.

   [43]   Maple v Kerrison (1978) 18 SASR 513.

   [44]   DAT v Police (2002) 83 SASR 237.

   [45]   Loader v The Queen (2011) 33 VR 86.

   [46]   LeCornu v The Queen (2012) VSCA 137.

6. It is perhaps arguable that there is a similar intention to abrogate the double jeopardy rule in the case of breaching an intervention order with violence. The difficulty with finally so concluding is that the breach may be committed by violence, or a threat of violence, which is not intended or does not cause an apprehension of imminent harm and is therefore not an assault, nor the offence of threatening harm. In addition the enforcement of intervention orders by criminalising their breach is a scheme of quite a different kind to those considered above. In any event it is not necessary to decide that question in this case because the assaults charged are aggravated and therefore include an element which is not an element of a simple assault.

7. If an aggravated offence is the very same offence as the basic offence, both offences must have an identity of elements. The charging of a second offence, which includes the elements of the basic offence, but has an additional element which differs from the circumstance of aggravation, with which the basic offence was committed, would therefore be barred even though it does not include the circumstance of aggravation. For example, an offender who assaults an emergency worker contrary to s 20(3) of the CLCA could not also be charged with an assault of that worker aggravated by the circumstance that the worker was above the age of 60 or that the assault was committed as retribution for the workers performance of an official duty. The practical result is that the offender will not be penalised for the full extent of his or her culpability, and if acquitted of the aggravated offence could not be prosecuted for the second charged offence. I acknowledge that the latter consequence will rarely present a difficulty because it should generally be open to the court to convict on the basic offence unless the special circumstances of a trial dictate otherwise.

8. In this case neither of the offences of 10 December 2019 included the elements of the other. It was not an element of the contravention charge that the appellant was in a former relationship with AB and not an element of the assault that the appellant was the subject of an intervention order.  The same can be said of the March 2020 offences. Charging and convicting on both did not infringe double jeopardy principles and in particular was consistent with the second of the rules I stated in short form above.

9. It is plainly the legislative intention that a contravention of an intervention order accompanied by violence or a threat of violence is more culpable than a simple assault and that an assault attended by the circumstance of aggravation, that the victim was in a relationship with the defendant is more culpable than a simple assault.[47]

   [47] Simple assault – s 20(3) 2 years CLCA; Aggravated assault – s 20(3) 3 years CLCA; Contravention of intervention order with violence – s 31(2) 4 years under Intervention Orders (Prevention of Abuse) Act 2009 (SA).

10. As the High Court recognised in Pearce v The Queen,[48] it is open to the legislature to so provide and it is a matter for prosecutors which offences they charge to ensure that on conviction an offender can be sentenced for the full extent of his or her offending.

    [48] (1998) 194 CLR 610.

11. However, if the elements which found the plea of autrefois convict are limited to the elements of the basic offence, the elements of the offence of contravening the intervention order with the particular form of violence alleged in this case include the elements of the offence of assault.  The offence of contravening the intervention order on 29 March 2020 also included the basic assault unless the contravention alleged was limited to being present on AB’s premises. It would not be permissible, on that construction and consistently with the rule articulated by Gummow and Hayne JJ in Filipowski, to convict and sentence the respondent for both the breach of the intervention order and having committed the assault in circumstances which include the aggravating factors set out in s 5AA. It means, on those premises, that in this case a choice must be made between convicting and punishing the appellant for his assaults in the context of only one or other of the attendant circumstances which rendered that conduct more culpable: the former relationship or the existence of the contravention order.

12. For the reasons I give below my preferred construction of s 5AA of the CLCA is that it creates two distinct offences – a basic offence and an aggravated offence the elements of which include the elements of the basic offence in any one or more of the prescribed circumstances which attract the same maximum penalty. However, to apply the principle stated by Gummow and Hayne JJ, it is not necessary to so decide. The pleas in bar can be adapted to apply to aggravated offences just as in-kind defences were applied to summary offences. The critical determinant is the finality of an adjudication on the existence of an attendant circumstance by a competent tribunal of fact. The bar to a subsequent prosecution following an acquittal applies when the latter charge includes the elements of the charge of which the tribunal of fact acquitted the defendant. The bar to a subsequent prosecution following a conviction by a competent tribunal applies when the latter charge includes the elements of that conviction. It is a consequence of the mandatory requirement of s 5AA(3) of the CLCA to include the element of aggravation in the information that the pleas in bar will operate as if the alleged circumstance of aggravation is an element of the offence.

    The proper construction of s 5AA

13. It is on the above understanding of the application of the principles of double jeopardy if there is an identity between a basic offence and its aggravated form as constituted by s 5AA of the CLCA that I turn to the construction of that section.

14. The opinions of the Judges of this Court are divided on whether the legal effect of s 5AA of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and that part of certain other provisions of the CLCA which provide for a higher penalty for an ‘aggravated offence’, create two distinct offences or a single offence punishable differentially depending on whether it is attended by a prescribed circumstance of aggravation. However, it is striking that in no decision of the Court in which those different opinions have been expressed, has it been necessary to conclusively determine the issue. That is not simply an accident of the particular circumstances on which those cases were decided. Primarily it is a consequence of s 5AA(3) of the CLCA which requires a circumstance of aggravation to be alleged in the instrument at charge. As we shall see, the effect of that requirement is that for all practical purposes in the application of criminal procedure to aggravated offences, the circumstance of aggravation is treated as if it is an element of the offence charged, and therefore, as an integral element of the conviction or order of acquittal. I will return to a more detailed consideration of s 5AA of the CLCA after a brief survey of the authorities.

15. The question in F, BV v Magistrates Court of South Australia & Anor[49] was whether the decision of a magistrate to commit the defendant for trial in the District Court on charges of aggravated pornography offences should be set aside because there was no evidence of the circumstance of aggravation, or alternatively for failing to accord the defendant procedural fairness.  The majority (Kourakis CJ and Gray J) held that the Magistrate had failed to accord procedural fairness.  Vanstone J in dissent held that there was, and could not be, any evidence of the circumstance of aggravation.  The order of committal was therefore set aside.  It was therefore not necessary to decide whether an aggravated offence was the same as the basic offence and the observation of the Court were made without the benefit of submissions from counsel.

    [49] (2013) 115 SASR 232.

16. In R v W,[50] counsel accepted that by his guilty plea W had admitted a circumstance of aggravation which made him liable to punishment in accordance with the higher maximum. It was also agreed that on a proper construction of s 5AA of the CLCA it was the function of the sentencing Judge, and not the jury, to determine whether or not the offence was also attended by another alleged circumstance of aggravation which the defendant denied.

    [50] (2015) 123 SASR 70.

17. In Glouftsis v Police,[51] Kelly J held that on a charge of an aggravated assault causing harm, the Magistrate was entitled to convict of a basic offence contrary to s 20(4) of the CLCA. Kelly J held that s 5AA created just one offence. However, that conclusion was not necessary to defer as her Honour also held on the premise that there were two separate offences. The Magistrate was empowered to amend the Information and to convict the defendant of the basic offence. With respect, her Honour was plainly right to so hold. Importantly, Kelly J’s conclusion was much influenced by her concern that if an aggravated offence was a separate offence, there must be a multiplicity of separate offences, one for each circumstance of aggravation. If that were the case, a charge alleging more than one circumstance of aggravation would be bad for duplicity. With respect, her Honour’s concern was misplaced. The better view is that s 5AA of the CLCA enacts a single aggravated offence whenever the basic offence is attended by one or more circumstances of aggravation for which a higher penalty is prescribed.[52] The allegation of more than one circumstance of aggravation does not render the charge duplex and s 5AA(4) of the CLCA expressly contemplates a charge being so framed and prescribes the procedure for its adjudication. That view is consistent with the accepted position that a sentencing Judge may take into account an additional proved circumstance of aggravation even if it was not alleged as a circumstance of the aggravated offence of which the defendant was convicted. It is also consistent with the provision made by s 5AA of the CLCA expressly authorising the charging of more than one circumstance of aggravation in the same count.

    [51] (2014) 120 SASR 420.

    [52]   Another different aggravated offence may be constituted where a different higher maximum penalty is provided for particular aggravating circumstances.

18. In R v Tilley[53] and in R v Sumner; R v Fitzgerald,[54] the issue was whether the Judge erred in failing to leave the basic offence as an alternative. Counsel agreed that there was a single offence. The question was whether the Judge had failed to properly direct the jury that it was entitled to return a verdict of guilty on the basic offence. Whether one or several offences are created by s 5AA, it is plain that it is open to a jury to return a verdict on the basic offence on a charge alleging an aggravated offence (see s 5AA(4) of the CLCA).

    [53] (2009) 105 SASR 306.

    [54] (2013) 117 SASR 271.

19. The question which arises in this case is whether the pleas in bar are to be applied on the basis that a conviction, or acquittal, of a charge of an offence which is alleged to be attended by a circumstance of aggravation prescribed by s 5AA of the CLCA, is to be treated as a conviction or acquittal of an offence which has as one of its an elements the alleged circumstance of aggravation, or of an offence the elements of which are limited to the elements of the basic offence.

20. The manifest purpose of the legislature in providing higher maximum penalties when an offence against the person is committed in any one or more of the circumstances of aggravation prescribed by s 5AA of the CLCA is to increase the maximum penalty to reflect the greater culpability of the offences by one or more of those circumstances. For obvious reasons, the legislature chose not to increase the provisions of the CLCA many times over by enacting additional legislative provisions for each aggravated offence. It chose instead to enact s 5AA of the CLCA for the purpose of both prescribing the circumstances which would aggravate the offence and establishing the procedures by which the circumstance of aggravation is alleged in the information charging the aggravated offence and, for the adjudication of the charge so pleaded.

21. The definition of aggravated offence in s 5(1) of the CLCA explains that where there is a differentiation between the penalty for an aggravated and a basic offence in a penalty provision, the reference to an aggravated offence is a reference to the offence in its ‘aggravated form (see s 5AA)’. Conversely, the definition of basic offence explains that a basic offence is a reference to the offence in its ‘non‑aggravated form (see s 5AA)’. Those definitions do no more than explain the connection between the amendments to the penalty provisions at the foot of each basic offence and the circumstances of aggravation prescribed by s 5AA of the CLCA; they tie the meaning of aggravated offence in the penalty provisions to the circumstances prescribed by s 5AA of the CLCA. Attempts to divine whether Parliament intended one offence or two separate offences from those definitions are therefore futile. It also reads too much into the definition to draw any conclusion from the use of the word ‘form’. That term is appropriate as a reference to different offences as it is to a difference in the particularisation of a single offence.

22. The primary rule of construction of the common law is, as Lord Diplock explained in R v Courtie,[55] that when Parliament prescribes a higher maximum penalty if an additional circumstance is proved, it enacts two distinct offences ‘whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence [I interpolate here that a species may be seen as a different ‘form’ of the same genus], or by using language which pre‑treats them as separate offences unrelated to one another’. It follows that the references to aggravated and basic forms of the offence do not contra-indicate the common law presumption. Far from it, the dictum of Lord Diplock applies the presumption in either case. Furthermore, little can be drawn from the structure of s 20 of the CLCA because it was enacted in the context of the operation of the common law presumption. It is for that reason too that other provisions of the CLCA which provide for a higher maximum in some circumstances independently of s 5AA of the CLCA are of little assistance. A legislative intention to provide otherwise must be found in s 5AA of the CLCA and not by attempting to find a universal intention from other provisions of the CLCA.

    [55] [1984] AC 463.

23. Nor can support be drawn from the decisions dealing with statutory provisions of other States which are not analogous to s 5AA of the CLCA.

24. It has long been accepted that for the purposes of sentencing a trial judge may seek guidance from a jury as to the factual basis of its verdict.[56]   The jury finding is not an element of the verdict but guidance provided to the judge.  The rule of practice that a circumstance of aggravation which exposes an accused to a higher penalty but does not constitute a different offence, should be left to the jury to determine is generally traced back to a judgment of Darling J in R v Bright.[57]  In the early years of the newly established English Court of Criminal Appeal, Darling J observed that a sentencing judge:[58]

    … must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.

    [56]   Westlaw AU, The Laws of Australia (online at 17 March 2022) 11 Criminal Procedure, ‘11.7 Trial Procedure’ [11.7.2060].

    [57] [1916] 2 KB 441.

    [58] [1916] 2 KB 441 at 444-445.

1. In R v Bright, the circumstances of aggravation were prescribed by regulations which, like s 5AA of the CLCA, expressly provided that the increased penalty attracted by those circumstances could be imposed only if they were found by the jury. Nonetheless, since the decision in R v Bright, the practice has been followed in some jurisdictions whether legislatively mandated or not.  The practice was described in the 41^st edition of Archbold’s Criminal Pleadings and Practice[59] to be:

   … where a defendant pleads guilty, the Judge before passing sentence, in order to form an opinion as to the degree of culpability, may hear evidence as to the motive which induced the defendant to commit the offence; but where the offence is by statute punishable by a more severe sentence if accompanied by circumstances of aggravation, such circumstances may be taken into account in passing sentence only if they have been charged in the indictment and been proved to the satisfaction of the jury or admitted by the plea of guilty.

   [59]   London, Thomson Reuters, 2021.

2. That practice was not uniformly adopted in Australia.[60] However, in Kingswell v The Queen,[61] Gibbs CJ, Wilson and Dawson JJ held:[62]

   The rule of practice laid down in R. v. Bright is consistent with the fundamental principle that questions a fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment.  The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge.  Although it would be an exaggeration to say that the rule of practice in R. v. Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed.

   [60]   R v Sawyer [19676] VR 725; R v Martin [1984] 2 NSWLR 236.

   [61] (1985) 159 CLR 264.

   [62] (1985) 159 CLR 264 at 280.

3. Section 564 of the Criminal Code (Qld) and s 582 of the Criminal Code (WA) before its amendment provided that if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.

4. Section 235 of the Customs Act 1901 (Cth) on the other hand left that finding to the judge. Nonetheless, the plurality in Kingswell observed:[63]

   There is no reason why the satisfaction of the judge should not be founded upon the findings of the jury. We consider that the practice has not been abrogated by s. 235 [of the Customs Act 1901 (Cth)] and should be followed in all States. Where the circumstances of aggravation described in s. 235(2) are relied on, they should be charged in the indictment. If necessary, of course, an alternative charge, omitting the circumstances of aggravation, could be laid in addition.

   [63] (1985) 159 CLR 264 at 281.

5. In Kingswell, Mason J (as he then was) held that, whether the existence of aggravating circumstances should be left to the trial judge or the jury, must be answered by the terms of the statute itself, which, in Kingswell, provided that it is for the Court, and not the jury, to determine.  Mason J acknowledged that it was possible for the Court’s satisfaction to be based on a prior finding by the jury but foresaw difficulties in that approach.[64] For example, how is any difference between the satisfaction of the jury and the Judge to be resolved. Presumably, the Judge’s finding would be determinative in which case it was simpler merely to affirm what was explicit in s 235(2)(c) of the Customs Act.  Mason J doubted that it was any part of the function of a jury, leaving aside the construction of the Customs Act, to adjudicate on facts relevant only to sentencing.[65]  His Honour said:[66]

   However, there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform …  The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the trial judge, subject to the qualification that the view he adopts must be consistent with the verdict or plea.

   [64] (1985) 159 CLR 264 at 282.

   [65] (1985) 159 CLR 264 at 283.

   [66] (1985) 159 CLR 264 at 283.

6. Mason J did not see any relevant distinction between facts relevant to sentencing generally and facts which, if found, would attract a higher maximum penalty. There is, with respect, much force in that.  The rule of practice sanctioned by the plurality does not extend the adjudicative function of the jury but allows the court instead to co-opt the jury to assist in the sentencing process after its constitutional function has been completed.

7. The practice laid down in Kingswell was affirmed in The Queen v Meaton.[67]  In Meaton, the Court said:[68]

   It was submitted before us that this practice suggested in Kingswell v. The Queen is productive of difficulties, but we do not agree. The inclusion in the indictment of matters of fact, which, although not elements of the offence, render the accused liable to a greater maximum punishment, serves the double purpose of informing the accused of a very important feature of the case made against him and of enabling the jury (in the event of a trial by jury) to decide questions of fact which may very materially affect the maximum punishment to which the accused is exposed. Where a jury determines the guilt of the accused the satisfaction of the court for the purposes of s. 235(2) should be consistent with the finding of the jury.[69]

   The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold’s Criminal Evidence & Practice, 42nd ed. (1985), pars. 4-459-4-461. Where the accused is alleged to have been convicted of a previous offence in respect of narcotic goods, in New South Wales the practice governed by ss. 394 and 414 of the Crimes Act 1900 (N.S.W.), as amended, should be adopted. In those States where the matter is not governed by express statutory provision, the practice which is set out in Kingswell v. The Queen should be followed. In other words, the accused should, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence together with any circumstances of aggravation other than the alleged previous conviction. If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged: but, in relation to Victoria, see Crimes Act 1958 (Vict.), as amended, s. 395. In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s. 233B, any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.

   The rule requiring the circumstances of aggravation to be stated in the indictment is, as we have said, a rule of practice. Any failure to observe it does not necessarily mean that the conviction should be set aside – indeed, that appears from Kingswell v. The Queen where the practice was not observed but the sentence was allowed to stand.  In any case in which there is a failure to observe the practice which we have laid down, it will become necessary to consider whether a miscarriage of justice has resulted and only if that question is answered in the affirmative should the sentence be set aside.

   [Footnote in original]

   [67] (1986) 160 CLR 359.

   [68] (1986) 160 CLR 359 at 363-365.

   [69] (1986) 160 CLR 359 at 363-364.

8. The consideration of the practice in Meaton affirms that the assistance given by a jury in the sentencing process forms no part of its adjudicative function.  Kingswell and Meaton were applied in South Australia in R v Hietanen.[70]  King CJ explained its operation:[71]

   The above citations show that it has been authoritatively laid down by the High Court that where a statute fixes different penalties for an offence by reference to the existence or non-existence of circumstances of aggravation, there is a rule of practice that the circumstances which would expose the accused to the higher penalties must be pleaded in the charge and, if issue is joined, must be adjudicated upon by the jury or other tribunal of fact. This situation is not to be confused with the ordinary case in which facts relevant to the exercise of the sentencing discretion within the prescribed range of penalties are decided by the sentencing judge and need not be pleaded.

   It follows that if the prosecution wishes to invoke the higher maximum penalties prescribed in subs (4), it must allege in the charge that a motor vehicle was used in the commission of the offence and, if appropriate, that grievous bodily harm was caused to a person. A jury trying the charge must ‘then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation’: R v Meaton per Gibbs CJ, Wilson J and Dawson J at 364. It is open to an accused person to plead guilty to the charge but to deny any allegation in the charge that a motor vehicle was used or that the bodily harm caused was grievous. If that occurs, the prosecution may, of course, accept the plea in satisfaction of the charge. If it does not do so, issue has been joined as to the existence of the relevant circumstance of aggravation and that issue must be tried by a jury. If the circumstance of aggravation consists of the commission of a prior offence, the procedure in that event referred to in Kingswell v The Queen at 281 would of course be followed.

   [70] (1989) 51 SASR 510.

   [71] (1989) 51 SASR 510 at 514.

9. The recognition by King CJ that an accused may plead guilty without confessing the circumstances of aggravation accepts that an aggravation pleaded in compliance with the rule of practice is not integral to the charge; so too does the direction to the jury that it is open to them to find the accused guilty of the charge without the circumstance of aggravation.

10. The distinction between the common rule of practice just described and the regime established by s 5AA CLCA is fundamental. A verdict of guilty when returned by a jury on a charge in which the circumstances of aggravation have been pleaded in accordance with s 5AA(3) finds the person ‘guilty of an aggravated offence’. That is to say, the adjudication of guilt extends to, and includes a finding that the circumstance of aggravation has been proved beyond reasonable doubt. The finding as to the existence of the circumstance of aggravation is not an optional extra to assist the sentencing judge: it is not mere surplusage. Section 5AA(4) requires the jury to state which of the aggravating factors it finds to have been established, but a finding of guilt without more remains valid and will therefore be an adjudication and a verdict that all pleaded circumstances of aggravation have been found proved.

11. The notes to s 5AA(6) recognise that a conviction on a charge alleging an aggravated offence is necessary in order to attract the higher maximum. That note adopts the rule of sentencing which would apply if the aggravated offence were, or were to be treated as, a different offence to the basic offence. A judge cannot sentence in accordance with the higher maximum unless there is a finding of guilt in respect of the offence for which the higher maximum is provided. The note, therefore, emphasises that the jury’s adjudicative function extends to a finding as to the existence, or otherwise, of any pleaded circumstance and aggravation.

12. The second example to s 5AA(6) addresses the question raised by Mason J in Kingswell.  It provides that the Court will take into account, irrespective of the Judge’s view, the circumstances of aggravation found by the jury, but will not take into account circumstances of aggravation which the jury, in its verdict and in accordance with s 5AA(4) finds not proven. Again, the jury’s function to finally determine allegations of aggravating circumstances is emphasised.

13. The critical provision of s 5AA of the CLCA for the purposes of this question is sub-s (3). The common law rule of practice is that circumstances of aggravation, which are not elements of an offence, should be left to the jury so that the Judge feels bound to follow its finding thereby protecting the defendant by obtaining the opinion of the jury on a factual matter affecting sentence even though its constitutional function of returning the verdict has concluded. Section 5AA(3) of the CLCA goes further and incorporates the alleged circumstance of aggravation into the charge and therefore incorporates the element of aggravation into the jury’s adjudicative function. The phrase ‘instrument of charge’ includes an information by which all criminal proceedings in this State are now commenced.

14. Section 49 of the Criminal Procedure Act 1921 (SA) (‘the Criminal Procedure Act’) provides that a person may be charged with an offence by laying an information in the Magistrates Court in accordance with its rules.  If a defendant pleads guilty by admitting ‘the truth of the information’ and shows no sufficient cause why he should not be convicted, the Magistrates Court must proceed to convict the defendant and make orders against him or her accordingly.  In the Magistrates Court, the conviction follows, in the sense of taking the form of the charge.  On a plea of not guilty, the Magistrates Court must, on considering all of the evidence, determine whether to convict the defendant or dismiss the information.  Again, subject to the Court’s power to amend, which, as Kelly J held in Glouftsis, extends to amending an information from an aggravated to a basic offence, the conviction follows the charge.

15. Section 100 of the Criminal Procedure Act provides that an information charging an indictable offence must contain a statement of the specific offence or offences with which the accused person is charged with and such particulars as are necessary to give reasonable information as to the nature of the charge. Section 181 of the Criminal Procedure Act provides that a court may amend any information to cure a defect of substance or form unless a defendant would be substantially prejudiced by that defect but otherwise will dismiss an information which cannot appropriately be cured by amendment.

16. In most cases, a jury returns a general verdict.[72]  A general verdict is a verdict returned on the whole of the charge.  A general verdict and the resulting conviction will therefore follow and take the form of the charge on the information.  A jury may return a verdict on an alternative offence if it is an alternative allowed by statute or the common law, in which case all of the elements of the alternative offence must be found in the offence charged, unless the statue provides otherwise.

    [72]   Westlaw AU, The Laws of Australia (online at 17 March 2022) 11 Criminal Procedure, ‘11.7 Trial Procedure’ [11.7.2140].

17. The consequences of the jury’s adjudication extending to the circumstance of aggravation are not limited to sentencing. Even though not expressly addressed by s 5AA of the CLCA, those consequences must extend also to the application of the principles of double jeopardy. It follows that yet again it is not necessary for this Court to decide whether s 5AA of the CLCA creates one or several offences. Whichever is the case, the consequence of the mandatory requirement to plead the circumstances of aggravation and of the consequential extension of the jury’s adjudicative function to determine the existence of a pleaded circumstance of aggravation means that for all practical purposes the verdict returned by the jury on a charge of an offence in its aggravated form operates in the same way as a verdict on a charge of a different offence.

    Conclusion

18. I would allow the appeal and join in making the orders proposed by Blue AJA.

19. LOVELL, LIVESEY JJA AND BLUE AJA: Russell Hill, the respondent, was charged by South Australia Police, the appellant, with assault of AB, aggravated because he was (formerly) in a relationship with her (count 1),[73] and contravening a term of an intervention order for the protection of AB in a manner involving physical violence or the threat of physical violence to her (count 2),[74] committed on 16 December 2019.

    [73]   Criminal Law Consolidation Act 1935 (SA) subsection 20(3).

    [74]   Intervention Orders (Prevention of Abuse) Act 2009 (SA) section 31(2aa)(b).

20. The respondent was later charged by the Police with the assault of AB, aggravated because he was (formerly) in a relationship with her and/or he used an offensive weapon (count 3),[75] and contravening a term of an intervention order for the protection of AB (count 4),[76] committed on 29 March 2020.

    [75]   Criminal Law Consolidation Act 1935 (SA) subsection 20(3). This count was count 1 on a different information but has been renumbered for ease of reference.

    [76]   Intervention Orders (Prevention of Abuse) Act 2009 (SA) section 31(2). This count was count 6 on a different information but has been renumbered for ease of reference.

21. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to counts 1 and 4 and dismissed those counts. The Magistrate imposed a single penalty in respect of the remaining counts.

22. The Police appeal against the orders permitting the respondent to withdraw his guilty pleas to, and dismissing, counts 1 and 4 on the ground that the Magistrate erred in ruling that each pair of charges involved impermissible double charging.

23. The appeal raises two issues of general public importance. First, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive office is aggravated by another circumstance and vice versa? For this reason, the appeal was referred by a single judge to the Court of Appeal.

    Background

24. On 2 October 2019 a final intervention order was made against the respondent for the protection of AB. The first term of the intervention order was that the respondent not assault, threaten, harass or intimidate AB. Other terms included that the respondent not follow AB or enter or remain within 50 metres of the boundary where she resides.

25. On 16 December 2019 the respondent and AB met at Hollywood Plaza. The respondent became aggressive and AB left. He followed her. Her grabbed her arm, her hair and her neck; pushed her down the street; and bit her on the arm. The grabbing, pushing and biting comprised the assault the subject of count 1, which was aggravated because the respondent was or was formerly in a relationship with the victim.[77] This conduct also comprised the contravention of the intervention order by assault involving physical violence or the threat of physical violence the subject of count 2.

    [77]   Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(g).

26. On 29 March 2020 the respondent was present with AB at her residence. He became aggressive and she left and went into another room. He followed her. He threw a mobile phone at her, hitting her on the arm; threw a boot at her, hitting her; grabbed her by the neck and dragged her into the bedroom; and grabbed her by the throat and headbutted her. The throwing, grabbing, dragging and headbutting comprised the assault the subject of count 3, which was aggravated because the respondent was or was formerly in a relationship with the victim[78] and he used an offensive weapon.[79] This assault also comprised the contravention of the intervention order the subject of count 4.

    [78]   Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(g).

    [79]   Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(b).

1. On 21 December 2020 the respondent pleaded guilty to the four counts, together with the other counts. Upon the prosecutor reading out the facts of charge in relation to the December 2019 offending, the Magistrate expressed the view that counts 1 and 2 gave rise to issues of double jeopardy and invited written submissions by the parties.

2. On 29 January 2021 the Magistrate invited the prosecutor to read out the facts of charge in relation to the March 2020 offending and then expressed the view that counts 3 and 4 also gave rise to issues of double jeopardy.

3. The Magistrate gave ex tempore reasons for ruling that each pair of counts involved impermissible double charging. The Magistrate required the prosecution to elect on which count in each pair to proceed. The prosecutor refused to elect. The Magistrate granted permission to the respondent to withdraw his guilty pleas to counts 1 and 4 and dismissed those charges.

4. The Magistrate utilised section 26 of the Sentencing Act 2017 (SA) to impose a single penalty in respect of all remaining charges. The Magistrate adopted a starting point of imprisonment for 17 months. This was reduced to imprisonment for five months on account of the respondent’s guilty pleas and time served in custody, which was suspended on the respondent entering into a bond to be of good behaviour for three years.

   The Magistrate’s reasons

5. In relation to the December 2019 offending, the Magistrate gave the following reasons for finding the charges involved impermissible double charging:

   In order to prove the assault of 16 December 2019, the prosecution must prove beyond reasonable doubt that an assault occurred, so they would have to prove beyond reasonable doubt those acts that they say constitute the assault.

   In order to prove the charge of breaching the intervention order in [the] form that it is laid, namely involving physical violence or the threat of physical violence, the prosecution would have to prove beyond reasonable doubt acts done in contravention of an intervention order which involved physical violence or the threat of physical violence.

   It has been confirmed to me that, the very acts that they would prove beyond reasonable doubt to support the charge of assault, are [the] very acts that they would prove to support the charge of breach of the intervention order which involved physical violence or the threat of physical violence.

   Conversely, the acts that the prosecution would seek to prove as part of the offence of a breach of the intervention order involving an act of physical violence or the threat of physical violence are exactly the same acts as they would seek to prove in order to secure a conviction for the assault.

   In my view, the two charges meld with one another: that is to prove the second charge, they must first prove the first. If they prove the first then he would be liable to [be] convicted on that charge. Thereafter, they would attempt to secure a conviction on a second charge by proving the aggravated assault as part of the elements of that second charge.

6. In relation to the March 2020 offending, the Magistrate gave the following reasons for finding the charges involved impermissible double charging:

   In relation to the … matters of 29 March 2020, the very acts which are said to constitute the charge of aggravated assault are the very acts that the prosecution put forward as the acts that constitute the breach of intervention order. In order to prove the breach of intervention order in the way that they have chosen to particularise it, they would have to prove that there was an assault in the way they have particularised it which means they would prove all the acts which they put forward as the actus reus of count 1. Using the analysis of his Honour Justice [Peek] in Mullins, that cannot be done in accordance with law.

7. The Magistrate said that, when it came to sentencing, the Court would take into account, on a charge of assault, that it was committed in breach of the intervention order and, on a charge of breach of an intervention order, that the breaching act involved a serious assault. The Magistrate said:

   Should they elect to proceed with the assault charge (count 1) then … the court would not ignore the fact that the assault occurred against a background of there being an intervention order in place. This would make the assault more serious.

   If the prosecution were to elect to proceed in relation to count 2 then the court would have to take into account that the acts involving physical violence or a threat of physical violence were serious assaults against a domestic partner or former domestic partner.

8. On sentencing the respondent in respect of count 2 (the December intervention order breach), the Magistrate took into account the assault comprising the breach and, on sentencing in respect of count 3 (the March assault), the Magistrate took into account that it was committed in breach of the intervention order. The Magistrate said:

   [In relation to the breach of the intervention order in December 2019 the subject of count 2] I regard your example of this particular offence as serious indeed. Your violence towards your partner on that day was not a spontaneous push, it was an extended, nasty, brutish assault on her …

   In relation to the assault committed on 29 March 2020 [the subject of count 3], in my view, again it was a serious assault. It was a serious assault because it was committed whilst you were on an intervention order. It was a serious assault because, it was on someone in the confines of a home where they were isolated from help … More than that of course, it was not an isolated push or shove, as bad as that would have been, it was actions that extended over a period of time, over enough time for you to have come to your senses to have realised that you are assaulting another individual, and to have stopped. 

   The legislative provisions

9. Section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) relevantly provides:

   31—Contravention of intervention order

   (1)A person who contravenes a term of an intervention order imposed under section 13 is guilty of an offence.

   Maximum penalty: $1 250.

   Expiation fee: $160.

   (2)A person who contravenes any other term of an intervention order is guilty of an offence.

   Maximum penalty: $10 000 or imprisonment for 2 years.

   (2aa)Despite any other provision of this section, if a person contravenes a term of an intervention order (other than a term of an intervention order imposed under section 13) and either—

   (a)     the contravention constitutes a second or subsequent such contravention; or

   (b)     the act or omission alleged to constitute the contravention involved physical violence or a threat of physical violence,

   the person is guilty of an offence against this subsection.

   Maximum penalty: $20 000 or imprisonment for 4 years.

   …

10. Section 20 of the Act relevantly provides:

    20—Assault

    (1)A person commits an assault if the person, without the consent of another person (the victim)—

    (a)     intentionally applies force (directly or indirectly) to the victim; or

    (b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or

    (c)     threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—

    (i)the person who makes the threat is in a position to carry out the threat and intends to do so; or

    (ii)there is a real possibility that the person will carry out the threat; or

    (d)     does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or

    (e)     accosts or impedes another in a threatening manner.

    (2)However—

    (a)     conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and

    (b)     conduct that is justified or excused by law cannot amount to an assault.

    (3)A person who commits an assault is guilty of an offence.

    Maximum penalty:

    (a)     for a basic offence—imprisonment for 2 years;

    (b)     for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 3 years;

    (c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years;

    (d) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 5 years.

    (4)A person who commits an assault that causes harm to another is guilty of an offence.

    Maximum penalty:

    (a)     for a basic offence—imprisonment for 3 years;

    (b)     for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 4 years;

    (c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years;

    (d) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 7 years.

    Note—

    This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.

11. Subsection 5(1) of the Act defines the terms “basic offence” and “aggravated offence” to mean:

    basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);

    aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);

12. Section 5AA of the Act relevantly provides:

    5AA—Aggravated offences

    (1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:

    (a)     the offender committed the offence in the course of deliberately and systematically inflicting severe pain on the victim;

    (b)     the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;

    (c)     the offender committed the offence against a police officer, prison officer, employee in a training centre (within the meaning of the Youth Justice Administration Act 2016) or other law enforcement officer—

    (i)knowing the victim to be acting in the course of his or her official duty; or

    (ii)in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty;

    (ca)   the offender committed the offence against a community corrections officer (within the meaning of the Correctional Services Act 1982) or community youth justice officer (within the meaning of the Youth Justice Administration Act 2016) knowing the victim to be acting in the course of their official duties;

    (d)     the offender committed the offence—

    (i)intending to prevent or dissuade the victim from taking legal proceedings or from pursuing a particular course in legal proceedings; or

    (ii)in connection with the victim’s conduct or future conduct (as party, witness or in any other capacity) in legal proceedings; or

    (iii)in retribution against the victim for taking legal proceedings or for the victim’s conduct (as party, witness or in any other capacity) in legal proceedings;

    (e)     the offender committed the offence knowing that the victim of the offence was, at the time of the offence—

    (i)in the case of an offence against Part 3 Division 8A or Division 11A—under the age of 14 years;

    (ii)in any other case—under the age of 12 years;

    (f)     the offender committed the offence knowing that the victim of the offence was, at the time of the offence, over the age of 60 years;

    (g)     the offender committed the offence knowing that the victim of the offence was a person with whom the offender was, or was formerly, in a relationship;

    (ga)   —

    (i)the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or

    (ii)in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation);

    (h)     except in the case of an offence against Part 3A, the offender committed the offence in company with 1 or more other persons (including persons who are children);

    (ha)   in the case of an offence against Division 2 or 3 of Part 5, or Part 6A—the offender committed the offence in a place in relation to which, at the time of the offence—

    (i)there was in force a declaration under Part 4 of the Emergency Management Act 2004; or

    (ii)—

    (A)residents and others in the place, or in the vicinity of the place, had been advised (by radio broadcast) by the CFS that, as a result of a severe, extreme or catastrophic fire danger rating in respect of the place, they should activate their bushfire survival plan; and

    (B)that advice had not been withdrawn or ceased to apply; or

    (iii)residents and others had not been able to return to the place after leaving in response to a declaration referred to in subparagraph (i) or the provision of advice referred to in subparagraph (ii),

    and the offender knew, ought reasonably to have known, or was reckless with respect to, that fact;

    (i)    the offender abused a position of authority, or a position of trust, in committing the offence;

    (ia)    in the case of an offence constituted under Part 7B where the principal offence is an aggravated offence—the principal offender was, to the knowledge of the offender under that Part, a child;

    (j)    the offender committed the offence knowing that the victim was, at the time of the offence, in a position of particular vulnerability because of physical disability or cognitive impairment;

    (k)     in the case of an offence against the person—

    (i)the victim was, to the knowledge of the offender, in a position of      particular vulnerability at the time of the offence because of the nature     of his or her occupation or employment;

    (ka)   in the case of an offence against the person—the victim was, at the time of the offence, engaged in a prescribed occupation or employment (whether on a paid or volunteer basis) and the offender committed the offence knowing the victim to be acting in the course of the victim’s official duties;

    (l)    the offender was, at the time of the offence, acting in contravention of an injunction or other order of a court (made in the exercise of either state or federal jurisdiction) and the offence lay within the range of conduct that the injunction or order was designed to prevent.

    (1a)For the purposes of section 19A, an aggravated offence is an offence committed in 1 or more of the following circumstances:

    (a)     the offender committed the offence in the course of attempting to escape pursuit by a police officer;

    (ab)   the offender was, at the time of the offence, driving a motor vehicle in a street race;

    (b)     the offender was, at the time of the offence, driving a vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver’s licence or that his or her licence was suspended by notice given under the Road Traffic Act 1961;

    (c)     the offender committed the offence as part of a prolonged, persistent and deliberate course of very bad driving or vessel operation;

    (d)     the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;

    (e) the offender was, at the time of the offence, driving a vehicle in contravention of section 45A, 47 or 47BA of the Road Traffic Act 1961 or operating a vessel in contravention of section 70(1) of the Harbors and Navigation Act 1993.

    (1b)For the purposes of section 19AC, an aggravated offence is an offence committed in 1 or more of the following circumstances:

    (a)     the offender was, at the time of the offence, driving or using a motor vehicle that—

    (i)was stolen; or

    (ii)was being driven or used without the consent of the owner of the vehicle,

    and the offender knew, or was reckless with respect to, that fact;

    (b)     the offender was, at the time of the offence, driving a motor vehicle knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver’s licence or that his or her licence was suspended by notice given under the Road Traffic Act 1961;

    (c)     the offender committed the offence while there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;

    (d) the offender was, at the time of the offence, driving a motor vehicle in contravention of section 47 or 47BA of the Road Traffic Act 1961.

    (1c)For the purposes of section 19AD, an aggravated offence is an offence committed by the driver of a motor vehicle in 1 or more of the following circumstances:

    (a)     the offender knew that, at the time of the offence, he or she was driving the motor vehicle in circumstances of heightened risk;

    (b)     the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle;

    (c)     the offender knew, or ought reasonably to have known, that, at the time of the offence, he or she was driving a motor vehicle that had a major defect.

    (1d)For the purposes of section 19ADA, an aggravated offence is—

    (a)     an offence that caused the death of, or serious harm to, a person; or

    (b)     an offence committed by the driver of a motor vehicle in 1 or more of the following circumstances:

    (i)the offender was, at the time of the offence, driving or using a motor vehicle that—

    (A)was stolen; or

    (B)was being driven or used without the consent of the owner of the vehicle,

    and the offender knew, or was reckless with respect to, that fact;

    (ii)the offender committed the offence in the course of attempting to escape pursuit by a police officer;

    (iii)the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle;

    (iv)the offender committed the offence while the offender was the holder of—

    (A)a provisional licence; or

    (B)a probationary licence; or

    (C)a learner’s permit; or

    (D)an interstate provisional licence; or

    (E)an interstate learner’s permit,

    (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence;

    (v)the offender was not, at the time of the offence, the holder of—

    (A)a driver’s licence; or

    (B)a learner’s permit; or

    (C)an interstate licence; or

    (D)an interstate learner’s permit; or

    (E)a foreign licence,

    (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence;

    (vi)the offender was, at the time of the offence, driving a motor vehicle knowing that they were disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver’s licence or that their licence was suspended by notice given under the Road Traffic Act 1961;

    (vii)the offender committed the offence while there was present in the offender’s blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood;

    (viii)the offender was, at the time of the offence, driving a motor vehicle in contravention of section 47 or 47BA of the Road Traffic Act 1961.

    …

    (3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

    (4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury’s verdict).

    …

    (6)This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.

    Examples—

    1A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence.

    2A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established.

    One offence or multiple offences

1. An earlier acquittal of the lesser offence will permit a plea of autrefois acquit in response to the subsequent prosecution for the greater.  As Bray CJ explained in R v O’Loughlin; ex parte Ralphs:[190]

   An acquittal of the lesser offence should logically, in my view, be a bar to a subsequent prosecution for the greater offence provided, again, that the first offence is wholly comprised in the second.  If the ingredients of the lesser offence have to be proved as part of the greater, then, as I see it, it must, as between the Crown and the accused, be taken to be conclusively established that he was not guilty of an essential part of the greater offence.  The case of R v De Salvi is not authority against this proposition.  There a previous acquittal for wounding with intent to kill was held not to be a bar to a subsequent prosecution for murder.  The first offence was not wholly comprised within the second.  The intention to kill was an essential ingredient of the first charge, whereas an intention to inflict grievous bodily harm would have been sufficient for the second.

   [190] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 223 (omitting citation); see also at 248-249 (Wells J).

   Scenario 2:  acquittal of greater offence followed by prosecution for lesser offence 

2. In R v O’Loughlin; ex parte Ralphs, Bray CJ suggested that an acquittal of the greater offence will not give rise to plea of autrefois acquit in the case of a subsequent prosecution for the lesser offence:[191]

   If the accused is acquitted on a charge of a greater offence then, it seems to me, there is no logical reason, apart from the question of judicial discretion to prevent a possible abuse of process, why he should not be tried for a lesser offence wholly comprised within the greater offence, provided it was not possible for him to have been convicted of the lesser offence on the first trial, and provided that he can call in aid no principle of issue estoppel.  This explains cases like R v Barron.  An acquittal is only an acquittal of the whole offence and it may have been the very additional circumstance distinguishing the greater offence from the lesser which the jury was not prepared to find proved.

   [191] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 222 (omitting citation).

3. However, it is doubtful whether this view can survive the subsequent decision of the High Court in Island Maritime Ltd v Filipowski; at least not in circumstances where the earlier conviction was following a trial by jury, and hence where the reasons or essential conclusions underpinning the acquittal are not able to be known.  In that subsequent case, Gummow and Hayne JJ rejected a submission to the effect that the order in which the charges were prosecuted was relevant to the availability of the plea of autrefois acquit (or the application of the equivalent rule in a court of summary jurisdiction), and that the plea was only available (and the equivalent rule applicable) where the second charge was the greater offence.[192]  As their Honours explained:[193]

   [192] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [39]-[40] (Gummow and Hayne JJ), with Kirby J (at [88], [91]) and Callinan J (at [95]) agreeing.

   [193] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [52]-[58] (Gummow and Hayne JJ).

   The values embraced by notions of double jeopardy require that autrefois acquit and analogous principles are given no narrow operation.  In particular, neither the plea in bar nor the analogous principle applied in summary jurisdiction is confined to precluding the prosecution from controverting one or more elements of an offence charged first where the elements of that first offence are wholly included in the second.  To demonstrate why that is so, it is convenient to proceed by reference to an example.

   If an aggravated form of offence is charged first, and the accused is acquitted of that offence by a jury, it will not be possible to discern from that verdict whether the jury was not satisfied of one or more of the elements constituting the unaggravated offence, or was not satisfied of the element or elements of aggravation.  (By contrast, in a court of summary jurisdiction, the basis for the acquittal can be identified from the reasons given.)  May the accused be put at risk of conviction for the lesser, unaggravated, form of the offence at a subsequent trial?

   If autrefois convict is confined to cases where all the elements of the first offence charged (and of which the accused has been acquitted) are elements of the second offence, the plea in bar would not be available.  Yet because the jury’s verdict of acquittal says nothing of why the jury acquitted, the verdict of not guilty of the aggravated offence is consistent with the jury having not been persuaded that all of the elements of the simple, unaggravated, offence had been established beyond reasonable doubt.  That may be contrasted with circumstances where the first charge is not determined by a jury.  In such a case it would be known, from the reasons given for acquitting the accused of the first offence, whether the tribunal was not satisfied that the elements of the unaggravated offence had been established.  Presumably, it would be accepted that, if one or more elements of the unaggravated offence was not established at the first trial, the prosecution should not be permitted to have a second opportunity to prove that lesser offence.

   But that is a conclusion that cannot be based on doctrines of issue estoppel similar to those applied in civil proceedings. … Rather, the refusal to permit the prosecution to have a second opportunity to prove what was found not to have been established at an earlier trial is based in the need to maintain the incontrovertible character of that earlier decision.

   …

   Thus, what is revealed by the contrasting outcomes postulated by reference to the example given earlier, according to whether the first offence is tried by jury or tried summarily, is that to treat the plea of autrefois acquit as yielding no more than a form of issue estoppel does not give effect to all of the values embraced by the notion of double jeopardy.  In particular, to treat an acquittal on one charge as barring a subsequent prosecution concerning the same events as founded that first charge only where all the elements of the first offence are included in the elements of the second offence not only would fail to accept that the earlier decision was correct, but also would require the individual to relitigate matters that the public interest requires be treated as finally determined.

   Statutory provisions permitting juries to find an accused person guilty of an offence, other than the offence charged, avoid many of the problems that might otherwise be thought to arise from giving autrefois acquit and analogous principles an operation that is not confined to precluding proof of the elements of the first offence only when those elements are all included in the elements of the second.  Typically those provisions permit a jury considering one charge to find the accused not guilty of the offence charged but guilty of a less serious offence constituted by the conduct proved.

   Their Honours later summarised:[194]

   So, too, in Australia the values encompassed by double jeopardy require that the plea of autrefois acquit, and the analogous principle applied in summary jurisdiction, be available whenever all of the elements of one offence (of which an accused stands, or stood, in jeopardy) are included in the other offence of which that accused stands, or stood, in jeopardy, and that the plea be available, and the analogous principle applied, no matter the order in which the offences are charged.  The values embraced in double jeopardy are fundamental to the criminal law.  It is those values that are reflected in the rule which was adopted in Pearce.  In this case, the rule was not engaged, not because of the order in which the charges were preferred, but because the appellants never stood in jeopardy of conviction for the offences first charged.  Those charges were fatally defective.

   Callinan J agreed with this aspect of the reasoning of Gummow and Hayne JJ.[195]  While initially declining to express a concluded view upon the precise scope of the plea in bar, Kirby J nevertheless did express general support for the approach of Gummow and Hayne JJ on this issue.[196]  Gleeson CJ, Heydon and Crennan JJ, however, expressly declined to express a final view on the issue.[197]

   [194] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [63] (Gummow and Hayne JJ); see also the earlier passage at [38]-[40] (Gummow and Hayne JJ).

   [195] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [95] (Callinan J).

   [196] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [86]-[91] (Kirby J).

   [197] Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at [30] (Gleeson CJ, Heydon and Crennan JJ).

   Scenario 3:  conviction of greater offence followed by prosecution for lesser offence 

4. In this scenario, the earlier conviction for the greater offence would permit a plea of autrefois convict in respect of a subsequent prosecution for the lesser offence.  In The Queen v O’Loughlin; ex parte Ralphs, Bray CJ said:[198]

   … in my view a conviction for the greater offence ought to bar a prosecution for the lesser offence when that is wholly comprised within the greater, for the tribunal must have the accused guilty of the ingredients of the lesser offence and the sentence for the greater offence must therefore have involved punishment for the lesser.  Of the lesser it could be said, to quote the words of Blackburn J, as he then was, in Wemyss v Hopkins at p381, transit in rem judicatam.

   [198] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 222; see also at 257 (Wells J).

   Scenario 4:  conviction of lesser offence followed by prosecution for greater offence 

5. In this scenario, there does not seem to be any logical barrier to the later prosecution for the greater offence.[199]  It would not involve any attempt to controvert either the outcome in the earlier proceedings or the essential conclusions inherent in that outcome.  It is difficult to see how it could be said that the greater offence somehow merged with the earlier conviction for the lesser offence.  At most, the complaint might be that a conviction for the second offence would involve a second prosecution and conviction for the lesser offence included within the greater offence.  But it is not clear to me that this complaint is sustainable, or that it ought to be a barrier to that subsequent prosecution, whether by way of a plea of autrefois convict, or a stay or dismissal of the prosecution as an abuse of process.

   [199] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 223 (Bray CJ).

6. I do not think that the reasons of Gummow and Hayne JJ in Island Maritime Ltd v Filipowski require a different conclusion.  While their Honours did state that the order in which the charges were prosecuted made no difference, that was an observation made in the context of the availability of a plea of autrefois acquit, and the reasons for it appear to me to focus upon considerations that would not apply to a plea of autrefois convict.  It seems to me that while the timing or sequence of the prosecutions and convictions may well be of no consequence to the operation of autrefois acquit, they may nevertheless be relevant to the operation of autrefois convict.  It is not surprising that there might be such a difference between the two pleas in bar in this respect given their quite distinct roots.

7. To suggest that all cases involving an earlier conviction for the lesser charge would be incompatible with the later prosecution and conviction for the greater charge would be difficult to reconcile with the authorities (in particular, the cases involving charges for court-imposed obligations not to offend considered by Lovell, Livesey JJA and Blue AJA (see below)).

8. That said, as the Full Court acknowledged in R v O’Loughlin; ex parte Ralphs,[200] the circumstances of a particular case within scenario 4 may nevertheless provide grounds for either a plea in bar, or at least involve an abuse of process.  As Bray CJ explained:[201]

   Conversely, it would seem logical that a conviction for the lesser offence should not bar a subsequent prosecution for the greater.  If the lesser offence is, as it were, merged in the greater, the contrary is not true.  Punishment for the greater ex necessitate involves punishment for the lesser when the lesser is wholly comprised in the greater, but not vice versa.

   However, here the courts have followed the path of mercy rather than the path of logic.  They have refused in many cases to allow a man who has been convicted of an offence to be tried again for a charge involving “the same facts in a more aggravated form” (R v Elrington per Cockburn CJ at p696). So a conviction for common assault is a bar to prosecution for unlawful wounding or assault occasioning actual bodily harm or the like, the same act being in question (Elrington’s Case; R v Miles).  There are, however, limits to this indulgence.  A conviction for assault or wounding with intent to murder is no bar to a subsequent prosecution for murder or manslaughter (R v Morris; R v Friel; R v Tonks and R v Thomas).  So it has been held that a previous conviction for common assault is a bar to a subsequent prosecution for assault with intent to rape but not to one for attempted rape (R v Worland), or presumably to one for rape itself.  Wells J has endeavoured to find a logical dividing line in this class of case, on one side of which fall those cases where the earlier conviction will bar the subsequent prosecution and on the other side of which fall those cases where it will not.  I am not entirely convinced that he has found one in the distinction between new facts not in existence at the time of the earlier prosecution – such as the death of the victim – and old though undiscovered facts.  If rape was in fact committed and there was a conviction for common assault the penetration would not be a new fact.  The point does not directly arise here and I prefer to wait until it does.

   [200] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 223-224 (Bray CJ) and 258-261, 284-285 (Wells J); see also R v PNJ (No 2) (2007) 99 SASR 1 at [85] (White J with Duggan J agreeing).

   [201] R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 223-224 (omitting citations).

9. In cases falling within scenario 4, the availability of a plea in bar, or at least a conclusion that the prosecution involves an abuse of process, may depend upon the circumstances.  While a subsequent prosecution for the greater offence will not necessarily be barred, or involve an abuse, that may be so where, for example, the subsequent prosecution relates merely to an offence which is, in substance, no more than an aggravated or more serious version of what is essentially the same offence.  The position may be otherwise where the subsequent prosecution relates to an offence of an entirely different nature or character.

10. As mentioned, the joint reasons refer to cases of this Court, and the Victorian Court of Appeal, which have permitted prosecutions for greater offences that involved the contravention of a court-imposed obligation not to commit an offence (such as a good behaviour bond or extended supervision order (Maple v Kerrison,[202] DAT v Police,[203] Loader v The Queen[204] and Lecornu v The Queen[205])).  In my view, the reason why there was no barrier to the prosecution for the greater offences in those cases was that the greater offences were quite different in nature to the lesser offences.  They were not merely aggravated or more serious versions of the lesser offences; they addressed quite “separate and distinct criminality”.[206]  The gist, or gravamen, of the greater offences lay in the contravention of the relevant court-imposed obligation not to commit an offence, as opposed to the commission of the lesser underlying offence.[207] 

    [202] Maple v Kerrison (1978) 18 SASR 513.

    [203] DAT v Police (2002) 83 SASR 237.

    [204] Loader v The Queen (2011) 33 VR 86.

    [205] Lecornu v The Queen (2012) 36 VR 382.

    [206] Lecornu v The Queen (2012) 36 VR 382 at [19], [23] (Maxwell P, Hollingworth and Cavanough AJJA agreeing).

    [207] Maple v Kerrison (1978) 18 SASR 513 at 525 (Zelling J) and 527 (King J); DAT v Police (2001) 83 SASR 237 at [37] (Doyle CJ); Lecornu v The Queen [2012] VSCA 137 at [60] (Maxwell P, with Hollingworth and Cavanough AJJA agreeing).

11. On the face of the reasoning in those cases, they expose an inherent limitation in the operation of the pleas in bar.  It may be that these cases could alternatively be analysed or explained as instances of Parliament impliedly abrogating the usual operation of the pleas in bar through the creation of offences, involving the contravention of court-imposed obligations not to commit an offence, with the intention that those offences may be prosecuted in addition to the underlying offences.  Certainly there are some aspects of the reasoning in these cases – particularly Lecornu v The Queen – that support such an analysis or explanation.  But the important point is that, whatever the precise explanation, these cases provide support for the view that a plea in bar may not always be available in respect of the subsequent prosecution for a greater offence which is of a quite different character (even though it includes within its elements all of the elements of the earlier offence for which the defendant has already been convicted).

12. Such an approach would extend to the greater offences in the present case, namely the contraventions of the intervention order requiring that the respondent not assault AB.  The gist or gravamen on those offences lay in the failure to comply with the court-imposed obligation not to commit an assault upon the named person, rather than the commission of the assault per se.

13. It may be that a consideration of the broader circumstances of a subsequent prosecution for a contravention of a court-imposed obligation will reveal an abuse of process; for example, where the prosecution made a considered decision not to proceed with the (greater) intervention order offence at the same time as the prosecution for the underlying (lesser) offence and/or the offender was sentenced for the lesser sentence on a basis that reflected the existence of the intervention order.  In such a situation, the subsequent prosecution might involve the unnecessary imposition upon the offender of the expense and stress associated with two sets of proceedings, or expose the offender to further conviction in circumstances where the offender has, at least for practical purposes, already been punished for the entire criminality of his conduct.

14. Such a situation may be contrasted with the present case, where there was a simultaneous prosecution for the two offences.  In the present case, not only was the respondent not vexed with two sets of proceedings, but also there was no risk of double punishment.  To the contrary, convictions for both offences would have enabled the recognition of – through the conviction and punishment for – the full criminality of the respondent’s conduct, without any risk of double punishment.  In sentencing the respondent for each of the offences, the Magistrate would have been able to, and indeed required to, allow for the overlap between the offences and thereby avoid any double punishment.

15. For this reason, even assuming the aggravated circumstances are to be ignored (on the basis that they were not elements of the single offence created by s 20(3) of the CLCA), there was no barrier to the respondent being convicted of both the aggravated assault offences and the intervention order offences. The Magistrate erred in concluding otherwise.

    Conclusion

16. For the reasons set out, I would dispose of the appeal in the manner proposed in the joint reasons of Lovell, Livesey JJA and Blue AJA.