The Jeopardy Issue
57 The Crown submitted on the appeal that the principle of double jeopardy does not apply unless the accused has in fact been in jeopardy on the first occasion. It submitted that, on the facts of this case, the Applicant was not in legal jeopardy of a conviction for murder at the first trial.
58 The question that falls to be determined is whether a person was in legal jeopardy when, without trial, the Crown accepted a plea of guilty to a lesser charge and the accused was acquitted of the more serious charge. There can be little doubt that the quality of such an acquittal does differ from an acquittal after trial. Is this difference determinative?
59 Howie J distinguished the case law on incontrovertibility on the basis that, in each case, the two sets of proceedings involved the same victim. However, that is not an accurate description of the facts in Carroll. The second trial was a perjury trial with respect to the denial in the first trial that Carroll had killed the deceased. The "victim" in the second perjury trial was, in substance, the public because of its interest in the administration of justice.
60 It is not permissible to take a narrow, technical view of the issues that arise with respect to the principles now under consideration. It is not appropriate to state that, as the Applicant has never stood charged with the murder of his parents he can be said never to have stood in jeopardy in that respect.
61 In my opinion, identity of the victim is not a requirement of the operation of either the incontrovertibility principle or the double jeopardy principle. A manifest inconsistency can arise between the elements of one offence and the verdict in another. For the reasons I have given above, such inconsistency arises here.
62 The second way in which Howie J distinguished the earlier cases was on the basis that, in each case, there had been an acquittal after trial. (See at [128] and [140]-[141] set out at [26] and [28] above.)
63 Howie J referred to the frequently cited passage from Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 at 479:
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication." [Emphasis added]
64 The emphasised words a "lawful trial" were relied upon by Howie J to conclude that where, as here, the acquittal arose by reason of the acceptance of a plea to a lesser charge, the principles of incompatibility and double jeopardy were not infringed. It must, however, be borne in mind that Gleeson CJ and Hayne J noted at [37] in Carroll that the principle established by recent Australian authorities is of greater width than that stated by the Privy Council in Sambasivam.
65 In response to the reasoning of Howie J, that the acceptance of a plea did not involve a litigated controversy, the Applicant invoked findings to the effect that the Applicant murdered his brother because the brother had murdered their parents, made by Justice Abadee in the course of his remarks on sentence. In my opinion, these findings are of no significance for present purposes.
66 The process of adducing evidence and making findings for purposes of sentencing is quite distinct from what is required for purposes of determining criminal liability. Pursuant to s4(2) of the Evidence Act 1995, that Act applies to a sentencing hearing only if the Court directs that the law of evidence applies. There was no such direction in the proceedings before Abadee J when he sentenced the Applicant.
67 The focus in recent Australian case law upon the values underlying the principles of double jeopardy and of incontrovertibility requires the Court to have regard to the nature of the fact finding exercise said to give rise to an inconsistency or double jeopardy or finality. Nothing that transpired before Abadee J, in the course of a hearing where all parties accepted the proposition that the Applicant was provoked by the fact that his brother had murdered their parents, is capable of giving rise to an infringement of the principles. By the time of the sentencing hearing, any issue relating to the charge of murder had been removed from factual contention between the parties.
68 Mr Boulten, for the Applicant, submitted that the words "after a lawful trial" in Sambasivam, identify situations in which there had never been any jeopardy faced by the accused, for example, where there had been some technical challenge to the indictment. The scope of the proposition that an accused must have been placed in jeopardy on the first occasion, is the critical issue to be determined.
69 An accused is not relevantly in legal jeopardy if a charge is dismissed when:
· The information failed to allege essential elements of the offence (Broome v Chenoweth (1946) 73 CLR 583).
· The charge was bad for duplicity (R v VN [2006] 15 VR 113 at [75]-[76]).
· There was a defect on the face of the information (Hackwill v Kay [1960] VR 632).
· An essential precondition to the institution of proceedings was not satisfied (Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201).
70 The issue before this Court is whether an accused can be said not to have been in jeopardy in circumstances of a different character, namely, where the Crown accepted in advance of trial that, on the evidence available to it, no conviction could occur.
71 The most recent authority in Australia on the need for a person invoking the double jeopardy principle to have actually been placed in jeopardy is Filipowski supra in which the Court applied a line of Australian authority which, relevantly, finds its origin in the judgments of Dixon and Starke JJ in Broome v Chenoweth supra.
72 The test, as formulated by Dixon J in Broome v Chenoweth at 599.9, was whether upon the first charge "there could have been a valid conviction". This formulation was referred to with approval in the judgments in Filipowski supra at [12], [20], [75], [94].
73 Filipowski was concerned with the Marine Pollution Act 1987, which created two distinct offences relating to the discharge of oil into State waters. The provisions are set out in Filipowski at [7]-[10]. The Appellant was charged with an offence under Pt 4 of the Act, but there was express provision that that Part would not apply to a discharge to which Pt 2 applied. At trial the prosecution had adduced its evidence at the end of which the Appellant in the High Court submitted successfully that, on the evidence, Pt 2 clearly applied and there was no case to answer on the Pt 4 charge. Accordingly, the summonses were dismissed. Subsequently the Appellant was charged with an offence under Pt 2. It was with respect to the second proceedings that the High Court determined that the Appellant had never stood in jeopardy at the first trial.
74 It is of significance that in the first trial in Filipowski the prosecution case was in fact complete. The fact that what was there involved was summary proceedings, as distinct from a trial on indictment, does not determine the outcome of the application of the principle. (See Filipowski at [15] and [44]-[48].)
75 The joint judgment of Gleeson CJ, Heydon and Crennan JJ, quoted with approval the following passage from Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at [59] p32:
"[I]t is essential that the defendant has been in jeopardy on the charge. If summary dismissal occurs because the charge is defective, or because as a matter of law the evidence available to the prosecution cannot support a conviction , the defendant will never have been in jeopardy ... . Where the dismissal was not founded upon a consideration of the merits, even in the largest and most liberal sense of that expression, there is no adjudication of the innocence of the accused." [Emphasis added]
76 In a footnote their Honours referred to Williams v Director of Public Prosecutions [1991] 1 WLR 1160 at 1170 as supporting the passage quoted. Kirby J also referred to Williams at footnote 103 as authority for the proposition that the Appellant in Filipowski had never been in jeopardy.
77 In Williams at p1170, Rougier J said:
"For the purposes of the present appeal, we have to consider two possible situations in which a defendant may or may not be in jeopardy. The first is what I have called the 'temporal' question, namely whether the proceedings had reached such a stage that he was in peril of conviction. The second is 'qualitative', whether the imperfection (I deliberately choose a neutral word) of the proceedings which led to the original decision in the defendant's favour was of such a kind that he would never have been in danger of conviction. This second situation is independent of the first, and it is, therefore, necessary to deal with each in turn.
As to the temporal situation, I have reached the conclusion that Mr Hughes is correct in his submission that the point of time at which the defendant becomes in peril has to be some formal stage at or after the start of the proceedings. Herein assistance is to be derived from two cases. The first is Reg v Tonner [1985] 1 WLR 344, where it was held that on an indictment a trial starts, not upon the arraignment of the defendant but once a jury has been sworn and the defendant has been put in their charge. In dealing with a situation in the magistrates' court in Reg v Hammersmith Juvenile Court, Ex Parte O (1987) 86 Cr App R 843, the court there held that a trial in a juvenile court begins when the plea is taken.
It seems to me that in proceedings before justices, this is the logical moment whereat a defendant begins to be in peril of a conviction. Although it could be said that when a preliminary point is taken before plea, battle has been joined, as it were, yet all that is due to happen at that stage is that the point is decided either for or against the defendant; he is not in peril of conviction of the charge he is called upon to answer as a result of that decision. I am of the opinion that the decisions in various defendants' favour in most of the cases cited to us, and to which I have already referred, are explicable on the basis that the defendant has entered a plea of not guilty."
78 I interpose to note that, in New South Wales, trial by jury has been held for some purposes to commence upon arraignment, before the empanelment of a jury. (See R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Janceski (2005) 64 NSWLR 10 at [219]; R v Gee (2003) 212 CLR 230 at [17]; R v McNeill (Ruling No 3) [2007] NFSC 4 at [13]-[16] per Weinberg J. However, the issue of when a trial begins may have a different answer for different purposes, particularly where a statute has to be interpreted. (See Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at [17]; Gee supra at [43]; Donaldson v Western Australia (2005) 31 WAR 122 esp at [41]-[72].)
79 The point of arraignment does not appear to me to be a substantive commencement for purposes of the principles of incontrovertibility, finality and double jeopardy. In my opinion, as the plea was accepted in full discharge before the empanelment of the jury, the Applicant was not relevantly in jeopardy. I agree with Howie J that in substance, the position was the same as if a nolle prosequi had been entered even though there was an acquittal. This conclusion is reinforced to the extent that the principle of incontrovertibility is based on the respect which the courts show to the institution of trial by jury. (See e.g. Washer v Western Australia supra at [45].)
80 The same result ensues from the second situation considered in Williams and to which the observations in Spencer Bower, Turner and Handley were particularly directed. Rougier J went on to say:
"Turning to the qualitative question, I am of the opinion that the situation in the present case is much more closely comparable with that in Director of Public Prosecutors v Porthouse [1989] RTR 177 and in Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401. Realistically, the reason whereby the defendant escaped conviction on the first hearing was because the prosecution had framed the charge incorrectly and, by referring to the specimens of breath rather than blood, had put themselves out of court when it came to proving the charge of how much alcohol the defendant had consumed. Assuming, as one is entitled to do, that the matter had ultimately been decided according to correct legal principles, the defendant could never have been convicted. It follows, therefore, in my view, that he was never in jeopardy within the meaning of the phrase as applicable to the doctrine of autrefois acquit."
81 The judgment in Jelson (Estates) Limited v Harvey [1983] 1 WLR 1401, upon which his Honour relied, had determined to accept as authoritative the dissenting judgment of Lush J in Haynes v Davis [1915] 1 KB 332, where, with respect to proposition that an acquittal had to be "on the merits", being the proposition reflected in the passage from Spencer Bower, Turner and Handley quoted above, Lush J had said at p338-339:
"I quite agree that 'acquittal on the merits' does not necessarily mean that the jury or the magistrate must find as a matter of fact that the person charged was innocent; as it is just as much an acquittal upon the merits if the judge or the magistrate were to rule upon the construction of an Act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty, and to that extent the expression 'acquittal on the merits' must be qualified, but in my view the expression is used by way of antithesis to a dismissal of a charge upon some technical ground which had been a bar to the adjudicating upon it. That is why this expression is important, however one may qualify it, and I think the antithesis is between an adjudication of not guilty upon some matter of fact or law and a discharge of the person charged on the ground that there are reasons why the court cannot proceed to find if he is guilty."
82 In the submissions to this Court the reference to a "technical ground" in this passage was relied upon by Mr Boulten as indicating the extent of the not in jeopardy principle, i.e. that something in the nature of a defect on the face of the indictment or equivalent was required. Mr L Babb, who appeared for the Crown, relied upon the full passage as to what constitutes an "acquittal on the merits" including the passage "reasons why the court cannot proceed to find if he is guilty".
83 Mr Babb also relied on the close analogy between the present case and another decision which had similarly applied the dissenting judgment of Lush J in Haynes v Davis; namely R v Dabhade [1993] 2 WLR 129. This is the second authority, after Williams v DPP, cited for the proposition in the passage in Spencer Bower, Turner and Handley, referred to with approval in Filipowski, as quoted above.
84 In Dabhade a charge had been dismissed before the magistrate in circumstances in which the prosecution had offered no evidence because the charge as formulated could not, on the evidence available to the prosecution, be made out. After setting out the previous authorities the Court of Appeal concluded at 139:
"From the foregoing authorities, we have been able to glean the following propositions.
1 For the principle of autrefois to apply, the defendant must have been put in jeopardy. Quite apart from all other requirements, he must demonstrate that the earlier proceedings that he relied upon must have been commenced - that is, by plea in summary proceedings, or by his being put in charge of the jury in a trial on indictment.
2 If, thereafter, a charge or count is dismissed, albeit without a hearing on the merits (e.g. on the basis that the prosecution are unable to proceed), there is a well-established principle that the prosecution may not thereafter institute fresh proceedings on the same or an essentially similar charge or count. Reg v Pressick [1978] CLR 377 is an example of the application of this principle, but in the light of the authorities that we have been referred to, it is by no means clear to us that this is necessarily an application of the principle of autrefois acquit. It is, in our judgment, equally and perhaps more easily to be explained as an exercise of the undoubted jurisdiction in the court to prevent an abuse of its own process: see per Lord Devlin in Connelly v Director of Public Prosecutions [1964] AC 1254.
3 If, however, the summary dismissal of the charge or count is because it is apparent that it is defective, either as a matter of law (e.g. for duplicity) or because the evidence available to the prosecution on any view, given the application of proper legal principles, is insufficient to sustain a conviction on the charge as laid , then, in our view, it cannot be properly said that the defendant has ever been in jeopardy of conviction: see Director of Public Prosecutions v Porthouse [1989] RTR 177 and Williams v Director of Public Prosecutions [1991] 1 WLR 1160. As a matter of general principle, it does not seem to us to make any difference whether the evidence that the prosecution might otherwise have wished to rely upon is excluded because of some rule of law or statute (as in the Road Traffic Act cases sited) or simply because the evidence on its fact is incapable of proving the particulars of the offence alleged.
4 If, moreover, the context in which a charge is summarily dismissed is a rationalisation or reorganisation of the prosecution's case, so that, no doubt in recognition of the difficulties that may lie ahead in the successful prosecution of the original charge, it is decided to substitute therefore a new charge which is regarded as more appropriate to the facts, then the consensual dismissal of the original charge, upon the substitution of the new one, will not give rise to the application of the doctrine of autrefois acquit: Broadbent v High [1985] RTR 359. Admittedly, the prosecution have not been put to their election; but that is merely because it is at their instance that the new and substituted charge is preferred. Apart from anything else, including the fact that to hold otherwise would be contrary to common sense, it is plainly undesirable that the prosecution should be obliged to keep alive a charge upon which they have no intention of seeking a conviction merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit." [Emphasis added]
85 The Court noted the defect in the charge and concluded at 140:
"Yet further, applying the principle of the minority judgment of Lush J in Haynes v Davis [1915] 1 KB 332 and of the judgment of the Divisional Court in Broadbent v High [1985] RTR 359 to the facts of the present case, we observe that although the appellant had previously pleaded not guilty to the original charge, the prosecution had determined at or before the hearing of 24 January 1991 to proceed no further upon that charge but to substitute for it the charge of theft. We have therefore come to the conclusion that in no real sense was the appellant ever in jeopardy upon that original charge."
86 In my opinion, this reasoning, particularly in the paragraph identified as 3, is directly applicable to the present case. In the present case the Crown accepted a plea to manslaughter because it could not disprove the alleged provocation, i.e. "the evidence available to the prosecution … [was] insufficient to sustain the conviction". This is also the proposition from Spencer Bower, Turner and Handley quoted with approval in the three judge judgment in Filipowski quoted above.
87 Where the Crown accepts a plea to manslaughter in full discharge of an indictment for murder the Appellant cannot be said to have been in jeopardy on the murder charge. In such a case there has been no acquittal on the merits. Again, as a matter of substance, the position is equivalent to that which arises on a nolle prosequi.
88 What Dixon J said in Broome v Chenoweth at 599, is also pertinent:
"In the present case the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal. That being so, I see no reason why the actual order dismissing the information, although expressed to be for want of prosecution, should not amount to a sufficient discharge affording a bar to further prosecution, if the other requirements are satisfied upon which a defence of prior acquittal depends."
89 It cannot be said, in the present case, that "the proceedings had advanced to the stage when it became incumbent upon the prosecutor to support" the charge of murder of the brother "by proof".
90 In Ward v Hodgkins [1957] VR 715, Herron CJ who, even before the English Court of Appeal had done so, approved the dissent of Lush J in Haynes v Davis, explained Dixon J's reasoning in Broome v Chenoweth:
"His Honour's whole approach to the matter makes clear, I think, that in order to determine whether the dismissal of an information can be relied upon as the basis for a plea of autrefois acquit, it is necessary to go beyond the dismissal and see how far the proceedings have gone. A dismissal in other words per se may not be sufficient. It may take place before issue joined or before there is any question of an adjudication being embarked upon with regard to the guilt or innocence of the defendant and if it does, it will not in my opinion afford a basis for the plea. In the case before Dixon J, proceedings had advanced to a stage where issue was joined, and an adjudication on the guilt or innocence of the defendant had been embarked on. It was consequently the duty of the Court to go on and determine the case and either convict the defendant or dismiss the information. The defendant was certainly entitled to have the matter determined one way or the other."