R v Lualua

The case of R v Lualua involved the appellant, Pili Lualua, who was tried on five counts of sexual offending related to two separate incidents. The jury returned guilty verdicts on counts one, two, three, and five, but could not agree on count four, which involved rape. Judge Burnett invited the jury to return a verdict on the alternative count five, which they did, leading to a conviction on that count as well. However, before sentencing, the Crown applied to Judge Burnett to set aside the conviction on count five, which she did. The appellant filed a general appeal challenging the sentence and the setting aside of the conviction on count five. The Court of Appeal was asked to determine the status of the jury's verdict on count five and whether the appellant could be retried on counts four and five.

The Court of Appeal held that the District Court Judge was entitled to accept the verdict on the alternative count five, as the Crown and defence had consented to the taking of the verdict. However, the Judge did not have jurisdiction to set aside the conviction, as the conviction on count five could not be regarded as a nullity. The Court of Appeal also held that it should not set aside the conviction on count five, as it would be forced to treat the Judge's decision to take the verdict as erroneous. Finally, the Court of Appeal held that it would be an abuse of process for the Crown to retry the appellant on count four, as the conviction on count five would prevent a retrial on count four.

In conclusion, the Court of Appeal held that the appellant could not be retried on counts four and five. The appellant's sentence appeal was adjourned until he had been sentenced on count five.