GILHAM v REGINA [2007] NSWCCA 323 | Case summary

GILHAM v REGINA [2007] NSWCCA 323 | Case summary | Zoe

This reflected the maxim res judicata pro veritate accipitur . 8 The relevant principles, of which the principle of incontrovertibility is one, discussed by the High Court in a number of decisions since Rogers, for determining the effect of an acquittal in one criminal proceeding upon other criminal proceedings, have most recently been analysed in the joint judgment of Gummow and Hayne JJ in Island Maritime Limited v Filipowski (2006) 226 CLR 328, with which analysis Kirby and Callinan JJ agreed (see at [88]-[89] and [95]). Their Honours emphasised the values which underlie the applicable principles and the interaction of the principles: "[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 [ Garrett v The Queen (1977) 139 CLR 437 at 445; 52 ALJR 206; Rogers v The Queen (1994) 181 CLR 251 at 277-278; 68 ALJR 688; R v Carroll (2002) 213 CLR 635; 77 ALJR 157]. 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. [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 [(1994) 181 CLR 251 at 276-277; 68 ALJR 688], '[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 [ Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 606; 71 ALJR 131], conviction in a court of record in respect of a criminal offence brings about 'the substitution of a new liability' [ R v Wilkes (1948) 77 CLR 511 at 519]. As Gummow J noted in Pearce [Pearce v The Queen (1998) 194 CLR 610 at [53]-[54]; 72 ALJR 1416], 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' [Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996), p311]. 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' [Hunter, 'The Development of the Rule Against Double Jeopardy' (1984) 5 Journal of Legal History 3 at 14]. 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 [ Ashe v Swenson 397 US 436 at 445 (1970)]. … [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. …" 9 Their Honours also said: "[55] … 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. [56] It may readily be accepted that the need to maintain the incontrovertibility of earlier decisions can be identified as an important root of the principles of issue estoppel that have been developed and are applied in civil proceedings. But in considering what are the principles that are to be applied in criminal proceedings, it is necessary to return to not only that particular root but also the other values which are encompassed by the notion of double jeopardy. It would be wrong to conclude the inquiry about the principles to be applied in the criminal law at the point of drawing some analogies with the separate principles of issue estoppel in civil litigation simply because those principles are seen to derive from one of the several roots that together are described as double jeopardy. [57] 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." 10 The ground of appeal is expressed in terms of the principle of incontrovertibility. However, the application of this principle must be informed by the values underlying that and the other principles, most relevantly the principle of double jeopardy of bis vexari, in its shortened Latin form. 11 The most directly applicable authoritative statement of the principle of incontrovertibility is found in the judgments of the High Court in The Queen v Carroll (2002) 213 CLR 635. In that case, as in this case, the plea in bar relevantly autrefois acquit, did not apply. Nevertheless, it is now clear that the group of principles extend beyond such pleas in bar. 12 In Rogers at 255, 280, affirmed in Pearce at [29], this extension occurred under the rubric of the power of the Court to prevent an abuse of its process. Subsequently, on the basis of the observations of Gummow J in Pearce at [54], the High Court has identified the three principles reflecting underlying values, for the prevention of abuse of process where there has been a previous acquittal. 13 The public interest in the administration of justice, which underlies all the relevant principles, was emphasised in the joint judgment of Gaudron and Gummow JJ in Carroll at [86]: "[86] The interests at stake in a case such as the present were discussed in Rogers v The Queen [(1994) 181 CLR 251 at 273-274] and in Pearce v The Queen [(1998) 194 CLR 610 at 614-615 [9]-[15], 625-626 [53]-[56], 636-637 [89]-[91]]. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive [expressed in the maxim interest reipublicae ut sit finis litium]. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct [expressed in the maxim res judicata pro veritatem accipitur]. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute [cf Abebe v The Commonwealth (1999) 197 CLR 510]. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause [expressed in the maxim mnem debet bis vexari pro una et eadem causa]. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature [expressed in the maxim transit in rem judicatam]." 14 In Carroll, Gleeson CJ and Hayne J said in their joint judgment: "[35] … the application for stay is to be understood as being based on what was said in Rogers [(1994) 181 CLR 251 at 273, per Deane and Gaudron JJ) to be 'the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct'. It is this, rather than now rejected notions of the applicability in criminal cases of the principles of issue estoppel, [ Rogers v The Queen (1994) 181 CLR 251; cf R v Wilkes (1948) 77 CLR 511; Mraz v The Queen [No 2] (1956) 96 CLR 62; R v Storey (1978) 140 CLR 364] which was said to warrant staying the prosecution of the respondent for perjury. Attention must first be directed to the ambit and effect of the proposition that the verdict of acquittal at the first trial is to be treated as incontrovertibly correct. Only then will it emerge whether it is necessary to consider the nature or quality of the evidence that it is sought to adduce on the second trial, in this case, for perjury. … [37] The principle is stated in various ways. In Garrett v The Queen , Barwick CJ, with whose reasons Stephen, Mason and Jacobs JJ agreed, described [ Garrett v The Queen (1977) 139 CLR 437 at 445] it as being that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict" (emphasis added). Reference to calling in question and tending to overturn give the principle great width: wider than may be thought to have been stated by the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya [[1950] AC 458 at 479, per Lord MacDermott], a case often referred to in this connection." 15 In their joint judgment Gaudron and Gummow JJ said of this passage: "[93] We agree with the remarks of the Chief Justice and Hayne J in the present case respecting the decisions in Rogers and Garrett . Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition." 16 The joint judgment of Gleeson CJ and Hayne J went on to say, in reasoning which, as I understand the judgment of Gaudron and Gummow JJ, their Honours did not find it necessary to adopt: "[38] In Connelly v Director of Public Prosecutions [1964] AC 1254 at 1364 Lord Pearce said: 'A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas.' (Emphasis in original) … [40] There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial. … [42] In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent's sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible. … [44] … The inconsistency between the charge of perjury and the acquittal of murder was direct and plain. The laying of the charge of perjury, solely on the basis of the respondent's sworn denial of guilt, for the evident purpose of establishing his guilt of murder, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available. [45] The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. … … [47] Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various[ See, eg, Walton v Gardiner (1993) 177 CLR 378]. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive. [48] To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings [United Kingdom, Law Commission, Double Jeopardy and Prosecution Appeals (2001) Cm 5048, par 4.2] and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided." 17 McHugh J came to the same conclusion on the basis that: "[117] … the charge against the respondent for perjury was an abuse of process because it had a tendency to undermine the respondent's acquittal of an earlier charge of murder. [118] It is an abuse of process for the Crown to charge a person with an offence of perjury when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge. A perjury charge that has that effect is an abuse of process even if the evidence supporting the charge is different from the evidence that supported the prosecution case in respect of the charge on which the accused was acquitted. The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal. That is so even though the evidence proving perjury is unanswerable." 18 The formulation applied by McHugh J, namely "contradicts or tends to undermine an acquittal", reflects terminology from Garrett v The Queen (1977) 139 CLR 437 at 445, also adopted by Gleeson CJ and Hayne J at [37]. 19 McHugh J also said: "[130] … [I]f the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle. [131] To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes …" 20 McHugh J went on to refer to the House of Lords judgment in Connelly v Director of Public Prosecutions [1964] AC 1254 and also to Garrett, including that part of the judgment of Barwick CJ emphasised in the joint judgment of Gleeson CJ and Hayne J. His Honour then referred to Rogers and returned to the formulation in Garrett, which I have already quoted, and placed in italics that part of the judgment of Barwick CJ at 445 referring to evidence which if accepted would "tend to overturn the verdict". (See at [138] and also at [146].) 21 The formulation as to whether or not an acquittal is "called in question" or subsequent prosecution has a tendency to "overturn" or "undermine" the verdict of acquittal, indicates the potential breadth of the principle of incontrovertibility. However, I do not understand the judgments in Carroll, other than that of McHugh J, to propound a test that anything which can answer the description of 'calling in question' or 'tending to undermine' infringes the principle of incontrovertibility. 22 Gleeson CJ and Hayne J went on to say: [50] Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z [[2000] 2 AC 483], R v Arp [[1998] 3 SCR 339]and R v Degna [[2001] 1 NZLR 280] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial." 23 The test which their Honours applied was the formulation from the judgment of Lord Pearce in Connelly v Director of Public Prosecutions at 1364, i.e. whether the prosecution under consideration is "manifestly inconsistent on the facts with a previous acquittal". This requires, as Gleeson CJ and Hayne J emphasised at [40]-[41], quoted above, a focus upon a comparison of the elements of the new charge with the verdict on the previous charge "in the light of the issues at the first trial". Such a conclusion will readily be drawn if the relevant inconsistency can be characterised as "direct and plain" [44]. 24 Their Honours conclusion was: "[42] In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder … once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible."

The Judgment of Howie J 25 In the present case, Howie J referred to the authorities on the issue of whether or not the conviction after plea to manslaughter constituted an acquittal of a charge of murder, particularly Maxwell v The Queen (1996) 184 CLR 501. After expressing some doubts, his Honour proceeded on the basis that: "[111] … the acceptance of the plea to manslaughter resulted in a decision by the Crown not to lead evidence on the charge of murder and, as a consequence, there was in effect an acquittal of the charge of murder." 26 His Honour made reference to the findings of Abadee J in his remarks on sentence after the plea to manslaughter and said: "[123] In the present proceedings Abadee J made no findings of fact. That situation should be contrasted with that in Rogers v The Queen [1994] 181 CLR 251. In that case there was a finding that the relevant records of interview were not voluntary: a ruling made after a contested hearing before the trial judge. That finding was incontrovertible at least once a verdict of acquittal had been returned and could not later be challenged by the Crown. It was a positive finding made by the trial judge and, therefore, there was an abuse of process for the Crown to attempt to relitigate the issue: Carroll at [46], [91] and [136], In my view the only incontrovertible or final finding in the present case is that the accused was guilty of the manslaughter of his brother. [124] It may well be the case, as the Crown conceded before me, that, had the accused been convicted of manslaughter after trial, the situation would have been different. For one thing there would then clearly have been an acquittal of the charge of murdering his brother recorded as the verdict of the court. It may well be the case that had the only basis for manslaughter left to the jury been provocation, a verdict by the jury finding the accused guilty of manslaughter might have inhibited the Crown from asking a second jury to find facts inconsistent with that verdict. But that is not what happened in this case. … [127] However the question arises as to whether the acquittal of the charge of murder of his brother arising from the acceptance of the plea to manslaughter would require that the trial be stayed so as not to breach the principle against double jeopardy. Clearly the killing of the brother occurred as part of the series of events that also resulted in the death of the parents. The facts surrounding the killing are intertwined. The killing of the parents could not sensibly be considered without a consideration of the killing of the brother. By asking the jury to find that the accused killed the parents, is the Crown seeking to call into question the acquittal for the murder of the brother such that it offends double jeopardy? Would the trial judge need to direct the jury that they must give the acquittal of the murder of the brother full weight? Would such a direction mean that the jury could not do so and yet convict the accused of the murder of his parents? [128] The decisions that have held that the prosecution cannot seek to call into question an acquittal are cases where the later prosecution relates to a further allegation in respect of the same victim. They raise the issue of double jeopardy clearly because the prosecution is attempting to secure a conviction directly contrary to an issue that has been determined by the previous acquittal. However it is of crucial significance in my view that in each case the acquittal was a result of a jury verdict after trial." 27 His Honour referred to a number of cases on double jeopardy, noting at [132] that in Carroll: "The focus of both prosecutions was the one and same fact: did he kill the victim?" 28 His Honour considered the principle of incontrovertibility and concluded: "[140] In my opinion the incontrovertibility that has been accorded a verdict of acquittal after trial by jury, or a determination of fact made after a hearing on the merits, or by the terms of a particular statutory provision should not be applied to a situation where the acquittal arose incidentally by the Crown accepting a plea of guilty to a lesser offence. I do not see that any of the policy considerations, even giving the double jeopardy principle its widest scope, require that a verdict of acquittal to murder, arising from the acceptance of a plea to manslaughter, be given the status of incontrovertibility so that it is immune from further consideration by a jury at other proceedings. The real verdict recorded by the Court was a conviction of manslaughter. That was the only finding that the Judge was required to make. If the verdict of acquittal of murder is recorded at all, it can only be in the recording of the acceptance of the plea of guilty to the manslaughter charge. [141] But more significantly there was no positive finding by a tribunal of fact, whether it be by judge or jury, that the accused was not guilty of the charge of murder. Nor was there any statutory provision to give it that effect. To the extent that the issue arising from the charge of murder was joined between the parties on the accused pleading not guilty on arraignment, the issue was concluded when the Crown accepted the plea of guilty in discharge of the indictment. On the authorities the acceptance of the plea resulted in a decision not to lead evidence on the murder charge so that an acquittal resulted. But that was an automatic result following upon the acceptance of the plea and there was no decision on the merits of the allegation of murder. There was no finding made by the Court other than that the accused was guilty of manslaughter. There was nothing that gave the verdict of acquittal the status of a verdict delivered after a trial by jury in accordance with the principle in Sambasivam. [142] It was in my view at most a technical acquittal that gave rise to a plea of autrefois acquit on the charge of murdering his brother. There can be no question that such a result should follow the acceptance by the Crown of the plea of guilty to manslaughter. But I do not understand why the acquittal of murder should be accorded more substance than that. I doubt that the accused, the Crown or the Judge understood that the accused had been acquitted of the charge of murder by the adoption of that procedure. In those circumstances I do not see why fairness to the accused or the preservation of the Court's determination should require that the Crown now be precluded from prosecuting the accused with murdering his parents on the basis that the acquittal of murdering his brother prevents a jury from considering the circumstances in which that killing arose. The acceptance of the plea of guilty was on the basis that the Crown could not at that time negative that the accused acted in provocation. The acquittal means no more than that. In my opinion there would be no manifest inconsistency between a conviction of manslaughter of his brother and convictions of murder of his parents that would bring the courts in disrepute or undermine the principle of incontrovertibility of verdicts after trial." 29 His Honour also said: "[144] If the accused's submission be correct and the prosecution cannot proceed because to do so must inevitably challenge the acquittal, the accused could not be prosecuted even in the face of the most damning evidence of his guilt of murdering his parents that came to light since the sentencing proceedings for the manslaughter of his brother. And this only because at that time of taking the plea the Crown could not negative that the accused was acting under provocation. I do not believe that the principle of double jeopardy goes so far as to protect the accused from prosecution for the crime of murdering his parents simply because he pleaded guilty to the manslaughter of his brother and, as an incident of the acceptance of the plea, was acquitted of the murder of his brother. [145] In the passage quoted above from Carroll Gleeson CJ and Hayne J left open the limits of the principle of incontrovertibility. I would limit it, at least in the absence of any statutory provision to the contrary, to a decision following a hearing on the merits by the tribunal of fact. That would include a case where there was a jury verdict for whatever reason, including where the Crown offered no evidence on, or there was not evidence of, a particular count in the indictment. This seems to me to be consistent with the authorities that have examined and applied the principle. … [147] In my opinion there is nothing in Carroll that suggests that the proposed prosecution is in breach of the formal aspects of double jeopardy that I am here considering: that is there is nothing that legally prevents the Crown from seeking to have the accused convicted of murdering his parents. It may be that the evidence led by the prosecution would give rise to an inference that the accused was wrongly convicted of manslaughter and should have been convicted of murder, but the further prosecution does not seek to negative, substitute, or relitigate that verdict: cf Carroll at [103]. I know of no decision that has held that a later prosecution cannot call into question, at last incidentally, a previous conviction. There are cases that have held in effect that a later prosecution might incidentally call into question an earlier acquittal provided it does not seek to controvert it: see R v Z [2000] 2 AC 483; R v Degnan [2001] 1 NZLR 280; Carroll at [5] and [94]; and R v VN [2006] VSCA 111. [148] The conviction of manslaughter proves that the accused unlawfully killed his brother. That is not an issue that is in dispute at the proposed trial. The proposed prosecution does not put that verdict in jeopardy in any sense. A verdict that the accused murdered his parents is not necessarily inconsistent with an allegation that he unlawfully killed his brother, even if the jury might think that the conviction should have been for murder rather than manslaughter. The Crown is not bound by its acceptance of the plea to manslaughter on the basis of provocation and there is no fact decided by the sentence imposed upon the accused by Abadee J. There is in my opinion no breach of the principle against double jeopardy by the further prosecution of the accused." 30 As the judgment of Howie J, and the submissions in this Court recognise, the most directly relevant authority for present purposes on the principle of incontrovertibility is the judgment of the High Court in Carroll supra. In that case the Respondent was charged with perjury for giving evidence at his trial for murder that he had not killed the victim. He had been convicted, but the conviction was quashed and a verdict of not guilty entered on appeal. 31 The facts of this case differ in a critical respect. The Applicant was never charged with the murder of his parents. There was, accordingly, no direct inconsistency of the character with which the Court was concerned in Carroll. Nevertheless, there was an element of inconsistency because the acquittal, if it be such, to the charge of murder of the Applicant's brother was based, and based only, on alleged provocation by reason of the circumstance that his brother had in fact killed their parents. 32 Mr P Boulton SC, who appeared for the Applicant, submitted that by instituting the current prosecution the Crown was "in effect controverting the earlier verdict" of acquittal of the murder of the brother. This, he submitted, offended the principle of incontrovertibility. 33 In the final analysis, Howie J determined the issue adversely to the Applicant by applying the "manifest inconsistency" test derived from Connelly and applied by Gleeson CJ and Hayne J in Carroll. To repeat the last sentence of his Honour's par [142]: "In my opinion there would be no manifest inconsistency between a conviction of manslaughter of his brother and convictions of murder of his parents that would bring the courts into disrepute or undermine the principle of incontrovertibility of verdicts after trial." 34 The Applicant challenges this conclusion. 35 Submissions were made to this Court as to how it was proposed that the Applicant receive the "full benefit of the acquittal" in the first proceedings. (A phrase derived from R v Storey (1978) 140 CLR 364 at 372.) However, that proposition should be regarded, for present purposes, to be "a particular restatement of" the principle of incontrovertibility. (See AJS v The Queen [2007] HCA 27; 81 ALJR 1208 at [24].) With respect to the conclusion of Howie J, that there may be no need to refer to the outcome of the charge for killing the brother, see AJS at [25]-[26]. The relevance and content of a possible direction to the jury in this regard has now been elucidated by the High Court in Washer v Western Australia [2007] HCA 48 esp at [30]-[37]. 36 Three key issues arise on the submissions in this Court:

The Acquittal Issue 37 Although his Honour proceeded on the basis that the first trial concluded in an acquittal on the murder charge, he expressed some doubts about that proposition and indicated a view that the effect of the acceptance of the plea to manslaughter was in the nature of a nolle prosequi rather than an acquittal. The Crown has, on this appeal, submitted that Maxwell supra is not authority for the proposition that, in the circumstances of this case, there was an acquittal of murder of the brother. 38 The Crown submits that the Applicant has not been acquitted of the charge of murder of the brother. Nevertheless, it accepts that there would be an effective plea in bar should the Crown now seek to proceed on a murder charge with respect to the killing of the brother. The plea in bar would be a plea autrefois convict. In my opinion, for the reasons given below, the principle autrefois acquit, as extended by High Court authority, would also apply. That does not, however, determine the outcome of this appeal. 39 Section 394A of the Crimes Act 1900, which was in force at the time relevant to this case, does not contain an express reference to the fact that a plea to manslaughter leads to an acquittal on the charge of murder. This contrasts with the position in legislation from other jurisdictions, eventually adopted in this State by subsequent amendment as s399 of the Crimes Act, now found in s157 of the Criminal Procedure Act. 40 It is clear that Gaudron and Gummow JJ were of the view in Maxwell that the conviction for a lesser offence under s394A of the Crimes Act 1900 "necessarily involves an acquittal" on the charge of murder (at 527). However, the Crown contended that there was ambiguity in the reasoning of McHugh and Dawson JJ on the issue. Their Honours said at 511-512, with respect to s394A: "The practical effect of a prosecutor's acceptance of the plea of guilty to manslaughter was that he led no evidence upon the charge of murder in the indictment." 41 Although this terminology does not expressly adopt the proposition that there was an "acquittal" on the murder charge, nevertheless, it is, in my opinion, to the same effect. Their Honours hypothesise an actual trial upon indictment which has reached the stage of the Crown tendering evidence and no evidence consistent with murder being proffered. That situation must lead to an acquittal. It is not, in law, identical to a nolle prosequi which occurs prior to an accused being put on trial upon an indictment. 42 In any event, this Court has decided this issue in R v Maxwell (1994) 34 NSWLR 606 where Gleeson CJ, with whom Hunt CJ at CL and Badgery-Parker J agreed, said at 614: "… In a case where s394A is invoked, the consideration which so influenced the Court in R v Naraindeen is present. What is involved is not only a conviction of the lesser charge but also an acquittal of the more serious charge. … For practical purposes I would give this section substantially the same operation as the Canadian provision which was considered in R v Naraindeen." 43 It is true, as the Crown submitted, that s606(4) of the Canadian Criminal Code under consideration in R v Naraindeen (1990) 75 CR (2d) 120, provided expressly that the acceptance of the plea of guilty resulted in a finding that the accused was not guilty of the offence charged. As indicated there were no such express words in s394A of the New South Wales Crimes Act. Nevertheless, this was not a matter which their Honours overlooked, as the reference to "for practical purposes" attests. Indeed this reference may well have informed the reference to "practical effect" in the joint judgment of Dawson and McHugh JJ on appeal. 44 As the recent judgments on double jeopardy in the High Court, including Carroll, confirm, the focus on the underlying values involved in the applicable principles requires the court to be concerned with matters of substance rather than of form. 45 This Court should follow its own earlier judgment unless satisfied that it is wrong. I can see no reason to doubt the judgment of this Court in Maxwell. 46 In my opinion, the submission of the Crown that the acceptance of a plea to manslaughter does not involve an acquittal of the charge of murder should be rejected. Even if there was no formal acquittal, the Applicant was entitled to such an order. (C/f AJS supra at [19].)

The Incontrovertibility Issue 47 The statutory provision allowing for the defence of provocation to a charge of murder is found in s23 of the Crimes Act which provides: "23(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter." 48 If the 1995 proceedings on the charge of murder of the brother had gone to trial and the jury had returned a verdict of manslaughter then the finding of fact by the jury as to the nature and content of the provocation would have led more clearly to the conclusion that there was a manifest inconsistency with a new charge of murder of the parents. However, as emphasised by Howie J, there was no such finding of fact by a jury. The Crown accepted a plea of manslaughter in full discharge of the indictment. It did so, as Howie J found, on the basis that the Crown was not able to discharge its onus of disproving the provocation upon which the Applicant relied. 49 It may have been accurate to describe the process as having a "tendency to undermine" the verdict of acquittal or, more clearly, to "call it in question", to adopt the terminology of Barwick CJ in Garrett. However, the generality of this language is not, as I understand the authority of Carroll, directly applicable. If it were then the passage at [50] of the joint judgment of Gleeson CJ and Hayne J with respect to an "incidental effect" would have little work to do. (See par [22] above.) 50 It may very well be that there was an issue estoppel, in the civil law sense, with respect to the question of who killed the parents, arising by reason of the acceptance of the plea on the basis of the provocation said to be constituted by a brother having done so. However, as determined in Rogers, the principle of incontrovertibility is not the civil law concept of issue estoppel. The applicable principles serve different values. 51 Elements of fact and degree arise when determining whether or not the doubt cast upon the acquittal for murder of the brother by reason of proceedings on charges of murder of the parents, is merely an "incidental effect" (within the meaning of the words used by Gleeson CJ and Hayne J in Carroll at [50]), or a possible inconsistency on the one hand, or whether they constitute a "manifest inconsistency" (see Carroll at [38], [40] and [42]), on the other hand. It is necessary to compare the "elements of the new charge" of murder of the parents, and the "verdict of not guilty" of the murder of the brother (see at [40]). 52 On one view, the verdict of not guilty of murder does not, as a verdict, demonstrate that the Applicant acted under the provocation of his brother's murder of their parents. Indeed, that verdict does not indicate any kind of felonious killing. It is only the conviction for manslaughter that does so. Nevertheless, a manifest inconsistency may be said to arise when the basis of the acquittal is known, as it is here. 53 There will be issues determined in the course of a criminal trial leading to an acquittal which, in the absence of a doctrine of issue estoppel, will have no effect on a subsequent trial. However, the matter before the Court involves an issue of central significance to the determination of the earlier trial. 54 The fact that the killing of the parents occurred in the same sequence of events as the killing of the brother is not the critical factor. (See Pearce supra at [25]-[26] and Filipowski supra at [43].) The critical factor is the basis upon which the acquittal of the murder of the brother occurred. 55 The series of cases in the High Court, from Rogers and Pearce through Carroll to Filipowski, apply the principle of incontrovertibility on the basis of the values underlying the principle. Such a focus requires this Court not to be concerned with technical distinctions. The pith and substance of the disposal of the original proceedings was that the Applicant was acquitted of murder on the basis that he acted under the provocation of his brother having killed their parents. This is not simply an inconsistency. Although a different judgment is clearly open, this is, in my opinion, a manifest inconsistency in accordance with the test applied in Carroll. 56 The same focus on values also requires this Court to have regard to the other two principles of finality and double jeopardy, reflected in the maxims referred to in the authorities set out above. If, notwithstanding an order of acquittal, the Applicant was not in jeopardy of a conviction for murder at the first trial then, in my opinion, even the existence of a manifest inconsistency would not be sufficient to constitute the kind of abuse of process that would warrant a permanent stay of proceedings. In the present case, unless the principle of double jeopardy was also engaged, the principle of incontrovertibility would not justify the orders sought by the Applicant. The alleged provocation which led to the acquittal for murder would give rise to no more than an issue estoppel of the kind which is only effective in civil proceedings.

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."

(See also Barnes v Gougousis [1969] VR 1019 at 1022.) 91 I note that in Filipowski there was a divergence of view about a passage in Pearce v The Queen at [18]. (See Filipowski at [25]-[30], [38]-[40], [85]-[91] and [95].) Although there does appear to be some tension between the principles identified in the analysis of Gummow and Hayne JJ, with whom Kirby and Callinan JJ agreed in this respect and the joint judgment of Gleeson CJ, Heydon and Crennan JJ, it does not appear to me that the proposition approved at [14] in the latter judgment, being the extract from Spencer Bower, Turner and Handley, is contradicted in any relevant respect. Nor does the recent analysis in Washer v Western Australia supra, do so. 92 The passage so approved equated a charge that was technically defective with a situation in which "as a matter of law the evidence available to the prosecution cannot support a conviction". As noted above, authority to support this proposition was given in the text and one authority was expressly approved in the joint judgment. 93 The formulation so approved appears to me to apply in the present case where the Crown agreed to accept the plea of manslaughter in full discharge of the indictment on the basis that it could not contradict the Applicant's case of provocation on the material available to it. This was a case in which "as a matter of law the evidence available to the prosecution cannot support a conviction" on the charge of murder of the brother. 94 Although this is a judgment of three judges of the High Court, the absence of any indication in the other judgments of disagreement with the analysis, in this respect, should lead this Court to apply the principle adopted in the joint judgment. That conclusion is reinforced by the fact that in Filipowski it was unanimously decided that the Appellant was not at risk in circumstances where the prosecution had advanced the whole of its case before accepting that on the evidence the charge could not be established. 95 In a sense this could be seen to be a technical defect because the Act expressly stated that the offence creating section did not apply in certain circumstances. However, the actual result in Filipowski could also be characterised in the relevant terms, i.e. the evidence could not support a conviction for that offence. 96 In my opinion, the Applicant was not in legal jeopardy of the charge of murder of his brother. Accordingly, the acquittal of that charge was not an acquittal which could attract the double jeopardy principle. 97 In these circumstances, the breach of the incontrovertibility principle identified above is not sufficient to justify the relief sought by the Applicant. Leave to appeal should be granted on Ground 1 but the appeal should be dismissed. 98 Since writing the above I have read the judgment of McClellan CJ at CL in draft. In my opinion, where the principles of finality, double jeopardy and incontrovertibility have been breached the conclusion that there would be an abuse of process follows as a matter of law. To repeat the comment of Gleeson CJ and Hayne J in Carroll at [42]; "the case for a stay of proceedings was irresistible".

The Finality of the Conviction 99 Ground of appeal 2, in the alternative to ground 1, is that his Honour erred by finding that the present proceedings did not controvert the previous conviction of the Appellant for manslaughter. The Applicant originally submitted that there was an inconsistency with the conviction for manslaughter by reason of the fact that it was based on the act of provocation involved in the brother killing their parents. Ultimately, the Applicant's submissions relied upon the principle of finality, as well as the principle of double jeopardy. 100 This ground of appeal also invoked the findings of fact in the judgment of Abadee J when he sentenced the Applicant for manslaughter. I have already extracted above a number of the references made by Howie J to the judgment of Abadee J in the sentence hearing, especially at pars [123], and [148] set out at [26] and [29] above. 101 In addition, Howie J observed: "[112] It will be noted from the facts as tendered that the basis of the plea of guilty was not hat the Crown was asserting that the accused was provoked into killing his brother, but rather that the Crown was unable to prove that he was not provoked. It is trite that, where there is evidence of provocation fit to go to a jury, the Crown must prove to the jury beyond reasonable doubt that the accused person was not provoked into killing the deceased before the jury can convict of murder. In the present case the statement of facts placed before the Judge displayed a clear acknowledgement of the onus and standard of proof. It contained an opinion of the police officer that the accused's version, that he was provoked by the killing of his parents by his brother, was feasible and that there was no evidence available to refute it. The statement of the prosecutor, which I set out earlier in this judgment, was not an assertion of the facts accepted by the Crown but rather an answer to the Judge's enquiry as to the basis upon which the plea to manslaughter was being accepted. In my opinion the acceptance of the plea was merely an acknowledgement by the Crown that it could not prove that the accused did not kill his brother under provocation. [113] Of course the Judge sentenced the accused on the basis that he was provoked according to his version of events. But that does not mean that the Judge found that version to be the true facts. A sentencing judge is obliged to sentence in accordance with material placed before the court, and, if there had been a jury verdict, in accordance with that verdict notwithstanding that the judge may not agree with it … [114] Where there has been a trial by jury, the trial judge is required to find facts in accordance with the jury verdict and consistent with the offence of which the accused has been convicted. But apart from these limitations, the trial judge is completely at liberty to find all facts in accordance with the evidence and to the relevant standard of proof: facts adverse to the accused must be found beyond reasonable doubt: Chow v DPP (1992) 28 NSWLR 593. But the finding of facts after a plea of guilty will usually be restricted by the material placed before the court, often being merely an agreed statement of facts: see R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174. [115] In the present case there was no scope for Abadee J to find any facts other than those that were agreed between the parties notwithstanding that he was not restricted to the agreed statement of facts because other material was tendered to him. But that further material did not impact upon the facts set out in the agreed statement." 102 His Honour referred to a number of authorities including Maxwell v The Queen supra; Walton v Butler [2004] QCA 456; 150 A Crim R 341 and R v K Ex parte Attorney General (Qld) [2002] QCA 260: 132 A Crim R 108. His Honour concluded: "[122] Upon this authority it seems to me that the Crown would not be impeded at a trial of the accused for the murder of his parents from asserting that he did not kill his brother under the effects of provocation as a result of the brother killing his parents. Clearly the factual situation here is not on all fours with that decided in R v K because there is still the conviction of manslaughter. But the Crown is not bound by any agreement as to the factual basis for the manslaughter conviction. It is enough that the Crown prove to the jury, that for whatever reason the accused killed his brother, it was not because the brother had killed his parents." 103 His Honour also said: "[125] The Crown, as in R v K, was prepared to accept, in the absence of evidence to the contrary, the factual situation that the accused killed his brother under the effects of provocation and there was hence no occasion for the sentencing court to inquire into or establish what was 'the truth of the matter', to borrow that expression from R v K. I do not see whey the Crown cannot at a later trial seek to show that the facts were different from those it was prepared to accept at the sentencing hearing where it conceded that it could not disprove the contrary of those facts. This is in effect what the Crown did in R v K. [126] True it is that the accused has been convicted of manslaughter of his brother, but the Crown is not seeking to interfere with that conviction. Nor is it seeking to have the accused convicted of any other offence in respect of the death of his brother. The accused is not being placed in double jeopardy in respect of the death of his brother. There is no question of a plea of autrefois arising nor is there a plea in bar available as a result of the conviction for manslaughter that impact upon this particular prosecution. The fact that the Crown accepted a plea of guilty to manslaughter on the basis of provocation and was prepared to accept that the brother had killed his parents is a matter that may impact upon the jury's preparedness to find the contrary beyond reasonable doubt. But that is in my view the only relevance of the sentencing proceedings and the conviction of the accused for manslaughter of his brother." 104 With respect to this ground of appeal, the Applicant placed particular reliance on the findings of fact of Justice Abadee in the sentence hearing. For the reasons I have already outlined I do not regard those as pertinent findings. (See also the judgments of the Queensland Court of Criminal Appeal relied upon by Howie J: R v K and Walton v Butler supra.) 105 The Crown submitted that the principle of incontrovertibility, which is the way this ground of appeal was expressed, only applied to acquittals and had no application to a conviction. 106 The Applicant relied on some observations by McHugh J in Carroll at 678 to the effect that: " … If subsequent proceedings put at risk the finality of a previous decision involved in an acquittal or conviction , those proceedings are an abuse of process." [Emphasis added]

This passage invokes the principle of finality. 107 The principle of finality, expressed in the maxim interest reipublicae ut sit finis litium, reflects the public interest that "judicial determinations be final, binding and conclusive". (Rogers supra at 273, Pearce supra at [53], Filipowski supra at [41]). The principle of incontrovertibility, expressed in the maxim res judicata pro veritate accipitur has been discussed above. The third principle, bis vexari, in its shortened version, is also discussed in Pearce at [54] and Filipowski at [41]. 108 By the application of the values underlying these three principles the traditional plea in bar of autrefois convict is susceptible to the same extension as the line of authority commencing with Rogers has given to the plea of autrefois acquit. 109 Indeed, in Rogers Deane and Gaudron JJ expressly invoked the principle of incontrovertibility when identifying the common ground between autrefois convict and autrefois acquit. Their Honours said at 276: "…to the extent that they prevent the prosecution of crimes for which an accused has either been acquitted or convicted , they prevent inconsistent decisions and serve to maintain the principle embodied in the maxim res judicata pro veritate accipitur." [Emphasis added] 110 This is similar to the reference to "a defence in the nature of a plea of autrefois convict" in Wemyss v Hopkins (1875) 10 LRQB 374 at 381, as explained in Pearce supra at [18], [21]-[24] as being limited to a plea in bar. However, as I have noted, the critical step taken in Rogers at 255, 280 and in Pearce at [29] was to bring the relevant principles under the rubric of abuse of process. The origins of this development indicate that the principles are applicable to the case of a prior conviction. 111 The Crown submission in this Court that the principle of incontrovertibility does not apply to a conviction should be rejected. 112 When considering whether proceedings which may cast doubt on a conviction constitute an abuse of process which justifies a permanent stay, an analogous approach to that identified in Carroll in the case of a prior acquittal is appropriate. Specifically, where such a doubt or tendency to undermine the finality of a conviction arises only as an "incidental effect" (see Carroll at [50]), the values underlying the applicable principles are not infringed. That, in my opinion, is so in the present case. 113 Any doubt cast on the conviction here would arise only on the basis that the Applicant, if convicted of murder of the parents, should have been convicted of murder of the brother, rather than of his manslaughter. The values underlying the principles of double jeopardy does not apply where, in the hypothesised situation, the Applicant would have benefited from an unduly favourable result. 114 Nor, in my opinion, would the public policy to protect the interests of the administration of justice and the values underlying the principles of finality and incontrovertibility be served by a stay. Where an offender has procured a favourable result by pleading to a lesser charge and, for the reasons discussed above, he was not in jeopardy of a conviction on the more serious charge then, in the case of charges as serious as murder, the interests of the administration of criminal justice are best served by permitting the prosecution to proceed. 115 Leave to appeal should be granted on Ground 2, but the appeal should be dismissed.

The Effect of Delay 116 This ground of appeal is expressed in the following way: "His Honour erred in finding that appropriate warnings or directions, rulings on admissibility, or other orders would cure any prejudice suffered by the accused, as a result of delay and/or the loss of evidence." 117 The prosecution case against the Applicant is entirely circumstantial. The Crown identified the circumstances upon which it will rely. Howie J set these matters out at pars [30]-[50] of his judgment. There is no challenge to his Honour's summary and it is unnecessary to repeat it. 118 The Crown identified a number of particular matters which it alleged constituted fresh evidence, including both expert and lay evidence. That evidence is also set out by Howie J at [54]-[62]. Again it is unnecessary to repeat it. Relevantly his Honour concluded at [54] that most, if not all of the evidence would have been available at the time of the first prosecution if it had been sought by investigators. His Honour also indicated that it would be wrong to consider each piece of fresh evidence alone and determine its probative value without regard to the whole of the evidence in the circumstantial case (at [72]-[74]). 119 His Honour also set out the evidence that had been lost. That evidence was substantial including the knife used in the killings, the bloodstained coat of the deceased's brother, the clothing allegedly worn by the Applicant at the time of the killings, carpet samples from the living room, samples of textile removed from the deceased brother's coat for forensic testing and swabs that were forwarded for analysis and certain other items. Many of these items were not tested, not least because of the fact that DNA testing was not then as well established as it is now. His Honour outlined this evidence (at [76]-[78]); again it is not necessary to set it out. 120 With respect to the lost evidence, his Honour said: "[84] As I have already noted, the intended prosecution of the accused is a circumstantial case and the Crown is not relying upon the reliability of any particular witness to prove the charges against the accused beyond reasonable doubt. Rather the prosecution would be attempting to prove that the account of the accused given at the time of the killings, or very shortly thereafter, could not possibly be true. To this extent the loss of evidence seems to me to have less impact that it might have. True it is that the defence might have used an exhibit now missing or tests carried out on those exhibits to bolster an inference that the accused's account is true. But the Crown could not rely upon the absence of those exhibits or the lack of testing to support an inference that the accused account was false. This is where I believe that directions or warnings to a jury might be more effective than would be the case where, for example, a complainant in a sexual assault prosecution is an apparently credible and compelling witness. In such a case the jury might more easily be able to dismiss the significance of the lack of evidence in the face of a witness that they feel should be believed. [85] The accused complains that the Crown will rely upon evidence of experts who might, because of their expertise, be considered favourably by the jury and yet the accused will not be able to cross-examine them effectively because the exhibits upon which they will express opinions have been lost. The accused is not now in a position to have the exhibits tested by his own experts. But I am not satisfied that this is a matter that cannot be addressed by suitable directions emphasising the lost opportunity of the accused to test the evidence. In any event it appears to me that what the accused has lost is a chance that he might have been able to present evidence that would weigh against the Crown case that his version of the events was false. He has lost an avenue of inquiry, or avenues of inquiry, that may have had a beneficial impact upon his defence: R v Helmling (NSWCCA, unreported, 11 November 1993). That is a matter that appears to me to be appropriately dealt with by directions from the trial judge. [86] In R v Slattery [2002] NSWCCA 367 the rifle used in the commission of a shooting offence had been destroyed before defence experts could examine it. The Court of Criminal Appeal set aside the verdict because of a failure of the trial judge to give an adequate warning to the jury, drawing their attention to the possible prejudice to the accused by the inability of the defence to examine the weapon. But there is nothing in the judgment to suggest that, had such a warning been given, the trial would necessarily have been unfair such that the verdict would have been quashed. [87] What this decision highlights is the benefit of being able to see with clarity the prejudice to the accused having regard to the evidence actually given at the trial and how, if possible, that might be addressed in light of submissions made to the jury. Otherwise the court in deciding whether there would be such unfairness as to render a trial an abuse of process is left to speculate about the evidence to be led at the trial and to make decisions based upon assertions that might not prove accurate when the issues in the trial are clearly established. This emphasises in my mind the exceptional step of granting a stay on the basis of lost evidence." 121 His Honour's ultimate conclusion in this respect was as follows: "[93] To some extent the accused is in a better position than many accused who face trial after long delay or where evidence has become unavailable. His version of events has been preserved and is accessible in a recorded interview. As I have indicated, the Crown will have to prove beyond reasonable doubt that the version he gave shortly after the incident is not true. To that extent the accused is less prejudiced by the passage of time even if he has tried to put the events of the night from his memory. [94] Further, it should be borne in mind that the result of a refusal to grant a stay does not mean that the accused is without a remedy, if the trial proves to be unfair notwithstanding steps taken by the trial judge to remove that unfairness. It is not unknown for a trial judge to make a decision based upon a forecast of what might occur during a trial or based upon facts and circumstances as they appear to be at the time the decision is made and yet that forecast prove to have been based upon a false assumption or that the facts or circumstances change significantly during the course of the trial. The trial judge can revisit decisions, such as the refusal to order a separate trial, on the basis of what occurs through the trial. The Court of Criminal Appeal can review such a decision made at he start of the trial if it proves that a miscarriage of justice has ultimately eventuated. This is what occurred in one of the authorities relied upon by the accused, R v Garjee an unreported decision of the English Court of Appeal dated 20 September 1994. [95] In the present case I suggested that the prosecutor might indicate what submissions the Crown might make to the jury at any trial in light of the missing exhibits so that a more realistic appraisal might be made of the claim of prejudice by the accused. Ultimately that did not transpire. But it seems to me at this stage that the trial judge can deal with the issue of lost evidence by warnings or directions depending upon how the case develops before the jury and what submissions the Crown ultimately makes. Certainly I am not presently persuaded that the trial judge, by appropriate warnings or directions, rulings on admissibility or other orders, cannot cure any prejudice suffered by the accused, particularly having regard to the fact that it is a circumstantial case and that the Crown must prove that the accused's version cannot reasonably be true." 122 In my opinion, his Honour was correct to conclude that, with appropriate directions, the Applicant would receive a fair trial and that it was inappropriate for the Court to intervene at this stage. I specifically agree with Howie J, with respect to the lost evidence, that it is appropriate to adopt the approach of this Court in R v Helmling (NSWCCA unreported 11 November 1993). 123 As noted, Howie J concluded that the matters relied upon are capable of being revisited during the course of the trial in order to identify what if any prejudice emerges. I agree. Should there be a trial resulting in conviction, no doubt the actual course of the events together with the actual directions given by the trial judge can be the basis of grounds of appeal with full knowledge of the relevant facts. His Honour was correct, for the reasons he gave, to conclude, in effect, that the application was premature. 124 This Court should not interfere with the decisions of a first instance judge on such matters of practice and procedure. The approach that Howie J has taken to these issues is not only an open one, but is a perfectly reasonable one. There is no warrant for this Court intervening at this stage. Leave to appeal on this ground should be refused.

Oppression 125 Ground of appeal 4 is: "His Honour erred in failing to find that the further prosecution of the accused is detrimental to the public interest in the light of the delay in the prosecution under reasonable expectation of the applicant that he would not be prosecuted for these two offences." 126 Howie J accepted that, even in the absence of the direct application of a principle of double jeopardy, proceedings may constitute an abuse of process and, accordingly, be vexatious and oppressive because they seek to relitigate a case which has already been disposed of by earlier proceedings. His Honour referred to Walton v Gardiner (1993) 177 CLR 378 at 393 and 396. 127 Of particular significance in this regard were his Honour's findings on the uncontested evidence of the steps taken with respect to this matter after the Crown had accepted a plea of guilty to manslaughter of his brother in full discharge of murder. The most relevant steps were: · On 8 June 1995 an inquest was held into the death of the Applicant's parents before the Deputy State Coroner who concluded, in effect, that the Applicant's brother had killed his parents. · The Applicant fell out with other members of his family, it appears over the administration of the parents' estate. Those family members sought further investigation into the parents' death which culminated in a television programme in 1997. · A second police investigation commenced in September 1999 and, ultimately, the matter was referred to the Coroner. · On 10 April 2000 the Deputy State Coroner commenced a second inquest into the death of the Applicant's parents. · On 28 April 2000 that inquest was terminated after the Coroner found that there was evidence capable of satisfying a jury that a known person had committed an indictable offence. As Howie J found, in effect, the Coroner concluded that the Applicant should stand trial for the murder of his parents. · On 21 July 2000 the Director of Public Prosecutions notified the Applicant that he declined to prosecute him. The basis of this decision was that there was no reasonable prospect of a conviction. · On 10 May 2000 the Applicant's uncle commenced a private prosecution of the Applicant for the murder of his parents. · On 6 June 2001 the prosecution was taken over by the Director of Public Prosecutions and terminated. · On 13 June 2001 the Applicant was discharged at the Local Court where the prosecutor offered no evidence upon the informations for murder. · On 22 July 2004 a review of the investigations into the killings was undertaken. · In October 2004 a re-investigation was commenced into the killing of the Applicant's parents. A brief of evidence was sent to the Director on 22 November 2005. · On 21 February 2006 the Director filed an ex-officio indictment which is the subject of these proceedings. 128 In dealing with this issue of oppression his Honour set out the relevant law and concluded: "[153] There is little doubt that the accused had a reasonable expectation that the investigation and further prosecution arising from the incidents that occurred on 28 August 1993 were concluded by the acceptance of his plea of guilty to manslaughter. That expectation would have been confirmed by the result of the first coronial inquiry. Thereafter there were occasions when he was in danger of having that expectation frustrated by the findings of the second coronial inquiry or the proceedings commenced by his uncle. However, on each occasion the Director or the Attorney General indicated that a prosecution would not be commenced at that time. [154] True it is that the Director has not indicated that a prosecution would never be commenced, but it can be accepted that with the passage of time the accused would have become more confident that no further prosecution was going to occur and gone on with his life in the belief that this part of his past was for all practical purposes over. Of course it is easy to assume his guilt and picture the accused believing that he had escaped punishment for the murder of his parents. But this is where it is important to keep in mind that the court acts upon the presumption of innocence, however strong a prosecution case might appear against an accused person. … [156] However, what is involved is again a balancing exercise considering various public interests not the least being the public interest in the prosecution of persons alleged to have committed serious criminal activity. It is trite to observe that the more serious the offence charged the more heavily will the oppression weight upon the accused to be further prosected but, on the other hand, the more significant will be the public interest in the prosecution continuing. It must be obvious that there is a considerable public interest in the prosecution of an accused person for the murder of two persons, regardless of the relationship of the deceased persons to the accused. [157] It is not unreasonable to conclude that the Crown could have prosecuted the accused with all three killings in 1995 on the basis of the supposed similarities in the killings and what other evidence was available to indicate that the accused might have been responsible for all three. At least it could have asked the jury whether there was any reasonable possibility, given the three killings and that the accused admitted to one of them, that he was not responsible for all three. But this is to second-guess the Director. He was entitled to form the view that, even if the case was put on that basis, there was no reasonable prospect of a conviction of the accused for the murder of the parents. If that were the case, then it would arguably have been an abuse of process to put him on trial for the death of his parents. [158] It cannot be an abuse of process for the Director to dutifully exercise his functions according to his assessment of the evidence at particular points of time, but ultimately from a different view because he believes that further evidence now makes a prosecution appropriate. I am unable to conclude that it is unreasonable for the Director now to have made the decision to prosecute the accused as the evidence now stands. Although the accused relies upon decisions where a change of the prosecution's intention has resulted in an abuse of process, those are decisions on their own facts. There is no sense in this case of the prosecution treating the courts 'as if they were at its beck and call', see R v Bloomfield [1997] 1 Cr App R 135. It is not a case of the prosecution abusing its power by making repeated attempts to convict the accused of a particular offence such as was the situation in Carroll. It seems to me to be rather a case of the prosecution determining to resist any attempt by any person to prosecute the accused for murdering his parents while the Director was of the view that there was no reasonable prospect of a conviction. [159] I am not persuaded that the further prosecution of the accused is detrimental to the public interest notwithstanding the delay and the fact that the accused's reasonable expectations will be disappointed. It must be said that this is principally because of the seriousness of the allegations and the public interest in them being resolved by a jury in the exercise of the jurisdiction of this Court rather than in its jurisdiction being denied to the Crown. But I also take into account the lack of any suggestion of improper behaviour by the Director or investigating police. While minds might differ as to the quality of the fresh evidence, I am not prepared to hold that it was insufficient to justify the Director's change of opinion as to the appropriateness of a prosecution of the accused. I am not persuaded to the necessary degree that the exceptional course of staying the proceedings is warranted." 129 The Applicant submits that his Honour's findings, particularly at [153], [154] and [157] as set out above, are matters which should have led his Honour to the conclusion that the proceedings be permanently stayed. 130 There is a substantial public interest in permitting alleged crimes of such seriousness to be determined on their merits. The expectation, said to be legitimate, induced in the mind of the Applicant by the Crown's delay and prevarication, is not entitled to significant weight in the case of alleged murder. In my opinion, Howie J correctly found that the events said to result in oppression do not prevail over that public interest, for the reasons he gave. (C/f Filipowski supra at [32].) 131 The balancing exercise which his Honour has undertaken with respect to the alleged oppressiveness of these proceedings is a matter which calls for a broad evaluative judgment on the part of a first instance judge. This Court should be very slow to interfere with a judgment of this character, unless it is satisfied that a miscarriage of justice has occurred or will necessarily occur in the course of a trial. I am not so satisfied. 132 Although the issue which Howie J had to determine was a matter of judgment, rather than the exercise of a discretion, nevertheless, the process of formulating the judgment can be properly described as conferring a wide discretion. (See e.g. Norbis v Norbis (1986) 161 CLR 513 at 518, 540; Russo v Aiello (2003) 215 CLR 643 at [27] and see the analysis in Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 at [34]-[36].) His Honour formed the judgment on proper principles. This Court should not interfere. 133 Leave to appeal on this ground should be refused.

Conclusion 134 The orders I propose are: 1 Leave to appeal on Grounds 1 and 2 granted. 2 Leave to appeal otherwise refused. 3 Appeal dismissed. 135 McCLELLAN CJ at CL: I have had the benefit of reading the draft reasons for judgment of the Chief Justice. I agree with the orders his Honour proposes. I agree with the Chief Justice's reasons in relation to grounds 3 and 4 of the appeal. However, I will state my own reasons in relation to grounds 1 and 2. 136 To my mind there are two issues which must be resolved. The first is whether the principle of incontrovertibility of previous decisions is engaged in this case. Because incontrovertibility is one of the values protected by the law under the collection of values referred to in the concept of "double jeopardy" it is necessary to consider the essential elements of that concept. Secondly, if incontrovertibility is engaged, it is necessary to consider whether the Court should intervene to stay the prosecution of the applicant for the charge of murdering his parents as an abuse of process. 137 The case raises difficult questions in relation to the operation of our legal system where a person has been either acquitted or convicted of an offence and is later charged with a further offence. The problems are not new although the facts of this case are unusual. The Chief Justice has recorded the essential elements in the judgment of Howie J and the competing submissions and I shall not repeat them in detail. 138 The applicant has not been charged with an offence for which he has already been tried. He was previously charged with the murder of his brother but after entering a plea was convicted of his manslaughter. He is now charged with the murder of his parents. Accordingly the pleas of autrefois convict and autrefois acquit are not available. The applicant's submission is that the present charges controvert both the previous acquittal on the charge of murdering his brother and the conviction for his manslaughter. It is submitted that the principles of finality of litigation, incontrovertibility of decisions and "double jeopardy" in the sense embodied in the maxim nemo debet bis vexari pro una et eadem causa are engaged so that this Court should stay the present proceedings as an abuse of process.

"Double jeopardy" - pleas in bar and abuse of process 139 The law has an aversion to placing a person twice in jeopardy of criminal liability arising from a particular event or series of events. As Gaudron and Gummow JJ point out in The Queen v Carroll (2002) 213 CLR 635 at [84] this aversion: "… finds diverse application through doctrines of estoppel and merger, in the pleas of autrefois acquit and autrefois convict and in principles respecting abuse of process, the admissibility of evidence and sentencing." 140 There are various interests at stake. They extend from the interests of the individuals involved in the event or events to the public interest in maintaining the integrity of and confidence in the justice system. These interests were described by Gaudron and Gummow JJ in Carroll at [86] in the following terms: "The interests at stake in a case such as the present were discussed in Rogers v The Queen (1994) 181 CLR 251 and in Pearce v The Queen (1998) 194 CLR 610. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive (expressed in the maxim interest reipublicae ut sit finis litium). Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct (expressed in the maxim res judicata pro veritate accipitur ). This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute (cf Abebe v The Commonwealth (1999) 197 CLR 510. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause (expressed in the maxim nemo debet bis vexari pro una et eadem causa ). Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature (expressed in the maxim transit in rem judicatam) ." 141 In Island Maritime Limited v Filipowski (2006) 226 CLR 328 these interests were described by Gummow and Hayne JJ as values described by the expression "double jeopardy." Their Honours said at [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 [ Garrett v The Queen (1977) 139 CLR 437 at 445; Rogers v The Queen (1994) 181 CLR 251 at 277-278; R v Carroll (2002) 213 CLR 635]. 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." (emphasis added) 142 There may be little difficulty in determining whether in response to these values the court should intervene to stay subsequent proceedings when a plea in bar of autrefois acquit or autrefois convict is available. Providing the necessary conditions are satisfied those pleas are available as of right. However, as McHugh J pointed out in Carroll the law has more recently recognised that the pleas in bar give only limited protection to an individual (at [129]) and they do not respond to the circumstance where there is the potential for conflict with a judicial determination which may not be immediately apparent from the verdict itself (see also Connelly v DPP [1964] AC 1254). Of course it is otherwise in civil proceedings where the doctrine of issue estoppel has developed. For these reasons the High Court has in a number of cases given consideration to the reach of the protection which should be afforded to prior decisions involving criminal charges. Where appropriate the court will intervene to restrain an abuse of its process (at [131]). 143 The difficulty addressed in the authorities, and it is evident in the present case, is in identifying the determination which cannot be challenged or contradicted. The task is more difficult when decisions are made by juries, as occurs in the criminal law, although of course, only in a minority of cases. Where there is a jury, apart from the ultimate verdict, the decision made by the jury in relation to particular issues will not usually be revealed. Determining whether particular issues were resolved by the jury and how they were resolved will in many cases be impossible (see discussion in Filipowski at [45]).

Issue estoppel in the criminal law 144 To address these problems in the criminal law the initial approach of the High Court, adopted in Mraz v The Queen [No 2] (1956) 96 CLR 62, was to accept that a plea of issue estoppel was available in criminal proceedings. The court subsequently rejected that view. 145 In Garrett v The Queen (1977) 139 CLR 437 the appellant was charged with rape. The issue was consent. Evidence was admitted at his trial that he had previously been tried for the rape of the same complainant, when the issue was also consent. He was acquitted at the earlier trial. The High Court, by majority, held that the evidence was wrongly admitted because it would tend to overturn the earlier verdict. Barwick CJ said (at 445): "The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds." 146 Because Barwick CJ concluded that the principle, now identified as the "incontrovertibility principle" determined the case, his Honour did not find it necessary to consider whether issue estoppel was available in the criminal law. 147 The availability of issue estoppel in the criminal law was rejected by the minority in The Queen v Storey & Anor (1978) 140 CLR 364 (Barwick CJ, Gibbs and Mason JJ) but given qualified acceptance by the majority, (Stephen, Jacobs, Murphy and Aickin JJ) who agreed that it may be available in cases, which may be rare, where an issue could be identified as having been determined in favour of an accused at an earlier trial. 148 The question was again considered in Rogers v The Queen (1994) 181 CLR 251 where Mason CJ, Deane and Gaudron JJ held that the doctrine of issue estoppel as developed in civil proceedings is not applicable to criminal proceedings. Brennan and McHugh JJ took the opposite view. The majority view has now been accepted as authoritative. Pearce v The Queen (1998) 194 CLR 610 was decided without further consideration of the availability of the doctrine of issue estoppel in criminal proceedings and the Court did not find it necessary to discuss issue estoppel in Carroll. Gummow and Hayne JJ returned to the question in Filipowski where they accepted that the matter had been authoritatively determined in Rogers. Their Honours said that "it is the values embraced by the notions of double jeopardy that are to be reflected in the development of the criminal law" (at [51]). "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" (at [57]). The essence of those values is to be found in the principles in Filipowski (at [41]) to which I have referred.

The principle of incontrovertibility and the decision in Carroll 149 Although Garrett was decided in accordance with the incontrovertibility principle the word "incontrovertible" first appeared in the judgment of Deane and Gaudron JJ in Rogers (at 275, 277, 278, 280). It is founded in the principle of finality (Carroll at [48]). The reach of the principle has not yet been authoritatively described. There is no difficulty when it is suggested that there is conflict with a prior verdict where the decision is exposed eg Garrett, Storey. However, in Rogers Deane and Gaudron JJ referred to "the need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct" (at 273) (emphasis added). Rogers was not concerned with a verdict but rather with the admissibility of a record of interview which had been rejected after argument at an earlier trial. The court held that it could not be tendered at the later trial where a decision to admit it would be at odds with the earlier decision to reject it. The law must protect against "the scandal of conflicting decisions." (see Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd edition, 1996). 150 Carroll concerned the prosecution of an accused person for perjury for allegedly lying at his earlier trial. He had been tried for the murder of a child. He gave evidence at the trial when he denied that he killed her. It was later alleged that that evidence was a lie. Gleeson CJ and Hayne J accepted that the principle described by Barwick CJ in Garrett (at 445) that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict" is a principle of great width (at [37]; see also Filipowski at [52]). Their Honours further accepted that the principle requires that verdicts of acquittal be "incontrovertible" but they do not define the limits of the principle saying that "it would be unwise to attempt to do so" (at [45]). 151 Their Honours accepted that the protection afforded by the law extends beyond the verdict itself. A further prosecution may be oppressive and an abuse of process "even though there is no direct inconsistency between the new charge and the earlier verdict" (at [47]). Their Honours concluded that where it is argued that the later prosecution seeks to controvert an earlier verdict it is necessary to consider the elements of the relevant offences. They wrote that there is "much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged" (at [47]). Because "it is what is decided in litigation that is final" and cannot be controverted (at [48]), identifying the elements of the offence required to be proved at the first trial will establish the matters which have been decided and will enable a decision to be made at the second trial as to whether the charges may be pursued or particular evidence tendered. 152 Their Honours also accepted that the "[f]inality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence which might have the incidental effect of casting doubt upon, or even demonstrating the error, of an earlier decision" (at [50]). Their Honours illustrate the point by reference to the tender of similar fact evidence relating to offences of which the accused was previously acquitted. As I understand their reasons, although the verdict in the later trial may be justified or supported by the tender of that evidence, because the verdict relates only to the later charge and does not determine any matter determined in the previous proceedings, that verdict does not have the potential to controvert the earlier decision. There cannot be inconsistent verdicts. 153 In their joint judgment in Carroll Gaudron and Gummow JJ acknowledge an apparent inconsistency between the decision in Garrett and the decision in Storey. The difficulty is the acceptance in Storey that evidence that an accused may have committed an offence of which he had been acquitted may be allowed, but only if the jury is directed not to interpret it in a way which denies the acquittal (Carroll at [92]). Their Honours agreed with the approach of the Chief Justice and Hayne J to the decision in Rogers and Garrett and, although acknowledging the difficulties of similar fact evidence, did not further consider that problem. 154 McHugh J examined the relevant common law principles. Finding that under the common law the judgment of acquittal on the murder charge "was a final and conclusive determination that Carroll did not kill [the girl]" (at [138]) his Honour concluded that a conviction for perjury, where the perjury consisted of the denial that he killed her, would be a direct contradiction and the perjury proceedings should be stayed as an abuse. This conclusion was framed in terms of a direct contradiction although his Honour approved of the potentially wider formulation in Garrett that the acquittal of a person "may not be questioned or called in question by evidence which, if accepted, would overturn or tend to overturn the verdict" (at [138] (McHugh J's emphasis) and [147]). 155 McHugh J stated the relevant principle was that "[t]he long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal" (at [118]). Adopting the approach of Barwick CJ in Garrett (at 445) his Honour accepted that this policy was necessary for the reason that otherwise "an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle" (at [130], [138]). 156 The joint judgment of Gummow and Hayne JJ in Filipowski has a detailed discussion of the difficulties faced in the criminal law. A lack of satisfaction that a fact has been proved beyond reasonable doubt does not establish any proposition. Accordingly, issue estoppel has no place. However, their Honours reason that "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" (at [55]). It is the elements necessary to establish the earlier offence which must be accepted as not having been established. The incontrovertibility principle will be engaged if one or more of those elements is sought to be established at the later trial.

The relevance of the incontrovertibility principle in the present case 157 The principles identified in Carroll and Filipowski are relevant to the present case. Before considering the reach of those principles in this case it is necessary to consider whether the applicant was acquitted of the murder of his brother. I address that matter below. Even if acquitted of that murder he cannot raise a plea in bar of autrefois acquit in answer to the charge that he murdered his parents. However, an issue in the earlier proceedings was whether he killed his brother because he was provoked by his brother's act of killing their parents. That issue was resolved for the purpose of those proceedings, although not after a hearing. The prosecution conceded that it could not prove beyond reasonable doubt that the applicant's brother did not kill the parents. The resolution of that issue does not involve a finding that the applicant did not kill his parents. However, a finding that the applicant did kill his parents would be a finding which could not be reconciled with his acquittal for the murder of his brother. 158 In the same way the acquittal of the accused in Carroll did not require a finding by the jury that he did not kill the child. It may have been that the Crown could not prove to the criminal standard that he did. However, if he was acquitted of murder that matter "passed into judgment: it is res judicata" (Garrett at 445). Having passed into judgment the incontrovertibility principle is engaged. 159 Whether, in the present circumstances, the incontrovertibility principle requires that the present proceedings be stayed raises further matters for consideration. The applicant was neither acquitted of murder nor convicted of manslaughter following the verdict of a jury and a jury was not empanelled for a trial. Does that mean that he was not "in jeopardy" and the plea of autrefois acquit to a charge of murdering his brother was not available? Were there other reasons why he was not "in jeopardy?" If he was not "in jeopardy", is the consequence that the prosecution for the murder of his parents should not be stayed? Apart from the consequence of the acquittal does his conviction for manslaughter mean that the prosecution for the murder of his parents is an abuse of process which the court should stay? Finally, what if anything follows from the findings made by the sentencing judge?

Was there an acquittal? 160 At the time the applicant entered his plea s 394A of the Crimes Act 1900 was in force. That section provides that when a person is arraigned on an indictment for an offence but could lawfully be convicted on the indictment of some other offence "[he] may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea". 161 The section was considered in R v Maxwell (1994) 34 NSWLR 606 where Gleeson CJ, with whom Hunt CJ at CL and Badgery-Parker J agreed, said that where s 394A is invoked "[w]hat is involved is not only a conviction of the lesser charge but also an acquittal of the more serious charge" (at 614). 162 Gleeson CJ referred to a decision of the Court of Appeal for Ontario R v Naraindeen (1990) 75 CR (2d) 120 which was concerned with s 606(4) of the Canadian Criminal Code. That section provided expressly that in the circumstances where the accused pleads not guilty to the offence charged but guilty of another offence "the court shall find the accused … not guilty of the offence charged". The Chief Justice said at 614 that "for practical purposes I would give the section substantially the same meaning as the Canadian provision". 163 I agree with Spigelman CJ that nothing turns on the inclusion of an express reference to a finding of not guilty in the Canadian legislation. By qualifying his reference to Naraindeen to its use "for practical purposes" Gleeson CJ was, to my mind, indicating that the proper construction of s 394A had the same practical effect as s 606(4) of the Canadian Code. 164 Maxwell was considered on appeal by the High Court (Maxwell v R (1996) 184 CLR 501) where Gaudron and Gummow JJ said that "[a] conviction for a lesser offence than that contained in an indictment, as permitted by s 394A of the Act, necessarily involves an acquittal on the offence charged in that indictment." If convicted of manslaughter the accused "can rely on autrefois acquit and cannot now be required to stand trial for murder" (at 529). 165 Gaudron and Gummow JJ speak elsewhere of the nature of the prosecutor's decision to accept the plea as a decision "not to present evidence on the more serious charge" (at 534) but I do not understand this statement to be referring to the consequence of that decision and whether or not there will be an acquittal. Dawson and McHugh JJ say that "[t]he practical effect of the prosecutor's acceptance of the plea of guilty to manslaughter was that he led no evidence upon the charge of murder in the indictment" (at 511-512). This was undoubtedly so but I do not understand their Honours to be suggesting that the consequence was that the accused did not have the benefit of a verdict of acquittal. 166 It would follow that the applicant was acquitted of the murder of his brother.

Was the applicant in jeopardy? 167 In Filipowski the High Court considered whether a plea of autrefois acquit was available when the defendant had been acquitted of a charge of polluting waters. The original proceedings had resulted in a verdict of acquittal when the trial judge was persuaded that, accepting the prosecution case at its highest, the prosecution must fail. Apart from a defect in the summons, which may have been cured by amendment, because of the location of the ship when it released the polluting discharge the prosecution was bound to fail. It was in state waters but the offence charged was not applicable to state waters. For this reason as a matter of law there was no possibility of a conviction for the offence with which they were charged. There having been no possibility of a conviction the defendants were never relevantly "in jeopardy" and the plea in bar of autrefois acquit was not available. 168 The relevant principles were discussed by Gleeson CJ, Heydon and Crennan JJ. Their Honours said at [11]-[15]: "[11] It is not necessary to examine the arguments advanced by the appellants to support the conclusion that a plea of autrefois acquit was available. That is because a key precondition must be satisfied before consideration is given to the principles relating to a plea of autrefois acquit. The defendant must have been in jeopardy on the charge Broome v Chenoweth (1946) 73 CLR 583. [12] In Broome v Chenoweth (1946) 73 CLR 583 the defendant, an employer, was charged by information with failing to make a compulsory deduction from an employee's wages, contrary to s 221C of the Income Tax Assessment Act 1936 (Cth). The defendant had earlier been charged on an information which counsel for the informant had attempted to withdraw because of defects in its form, but which a magistrate instead dismissed. Dixon J held that that order would have been capable of barring the second information on grounds of double jeopardy, but for one difficulty. His Honour said: '[T]here is left the question whether upon the earlier information there could have been a valid conviction. If a conviction in that proceeding could not have been effective, the defendant never did stand in jeopardy upon the earlier charge (1946) 73 CLR 583 at 599.' Dixon J found that the first information failed to allege two ingredients in the offence. He then said (1946) 73 CLR 583 at 600: 'The old rule was that, if the defendant could have taken a fatal objection to the earlier indictment or information, his discharge or acquittal thereon could not afford a bar. "The point in discussion always is whether, in fact, the defendant could have taken a fatal exception to the former indictment; for, if he could, no acquittal will avail him, but if he could not, it is always competent for him to shew the offences to be really the same, though they are variously stated in the proceedings' (quoting Chitty's Criminal Law , 1st ed (1816), vol 1, p 455.

[14] These principles have been summarised as follows (Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996) p 32, para 59: '[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.' [15] Neither Dixon J nor Starke J doubted that the relevant principles applied as much to summary proceedings on information as they did to prosecutions on indictment (1946) 73 CLR 583 at 595 per Starke J; at 600 per Dixon J. There is accordingly no reason to suppose that those principles do not apply to proceedings such as these, dealt with summarily before the Land and Environment Court in its summary jurisdiction, and the appellants did not submit that they could not. This flows from the fact that a plea of autrefois acquit rests on the rule against double jeopardy, as explained in Pearce v The Queen (1998) 194 CLR 610 at 627-628 per Gummow J; see also at 617 [22] per McHugh, Hayne and Callinan JJ." (emphasis added) 169 The procedure followed when the applicant was arraigned for the murder of his brother was that provided by the Crimes Act 1900 (NSW). Sections 394A and 395 of that Act since replaced by s 153 and s 154 of the Criminal Procedure Act 1986 (NSW) provide: "394A Conviction on indictment Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned. 395 Plea of "not guilty" If any person arraigned on an indictment pleads thereto "not guilty", he shall, without further form, be deemed to have put himself upon the country for trial, and the Court shall, in the usual manner, order a jury for his trial accordingly." 170 If, as happened in the present case, the accused although indicted for murder pleads guilty to manslaughter the Crown may, pursuant to s 394A, accept the plea in full discharge of the indictment. In that event a jury will not be empanelled and on the authority of Maxwell the accused will be acquitted of murder and convicted of manslaughter. 171 However, the Crown argues that by following this procedure the applicant was never in jeopardy and a plea of autrefois acquit was not available with the consequence that the incontrovertibility principle was not engaged. Two matters need to be considered. Firstly, could the applicant as a matter of law have been convicted of the charge in the indictment and secondly, had the process reached the point where the applicant was in jeopardy. 172 In Regina v Dabhade [1993] QB 329 the English Court of Appeal considered whether a plea of autrefois acquit was available where a charge was dismissed when the prosecution offered no evidence. The judgment of the court was delivered by Wright J who provided the following four summary propositions at 341: "From the foregoing authorities, we have been able to glean the following propositions.

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] R.T.R. 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 *342 merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit." 173 Dabhade was not concerned with the circumstances where a plea of guilty is entered to a lesser charge. The proposition that autrefois is only available when the defendant has been put in charge of the jury in a trial on indictment (proposition 1) reflects the common law. The common law did not allow for a plea of guilty to be entered to a lesser charge than that included on the indictment (R v Hazeltine [1967] 2 QB 857). However, by reason of the statutory provisions in New South Wales in many cases a plea to the lesser charge will be entered after the indictment is presented but before a jury is empanelled. In England the Criminal Law Act 1967 contains a similar provision: s 6(5). When the charge is murder the plea to the lesser charge will result in a conviction for manslaughter. It could hardly be suggested that the accused was not in jeopardy of that charge. As I have indicated, in Maxwell Gaudron and Gummow JJ expressly state that there will also be an acquittal on the murder charge. Their Honours indicate that, although a jury has not been empanelled, provided a conviction for manslaughter has occurred a plea of autrefois acquit to murder will be available (at 529). This must mean that the accused has been in jeopardy of the charge of murder. 174 The point at which a trial on indictment commences in New South Wales has been considered in a number of cases. R v Nicolaidis (1994) 33 NSWLR 364 was concerned with the legislative regime as it was when the applicant pleaded guilty. In that case Gleeson CJ said at 367: "The procedure of arraignment is described in Archbold, Pleading, Evidence and Practice in Criminal Cases , 39th ed (1976) par 363 at 155, as follows: 'The arraignment of defendants, against whom bills of indictment have been preferred and signed, consists of three parts, (1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking him whether he is guilty or not … The arraignment is not complete until the defendant has pleaded.' The effect of arraignment was considered by this Court in R v Howard (1992) 29 NSWLR 242 at 246-250. Section 395 of the Crimes Act 1900 provides: 'If any person arraigned on an indictment pleads thereto 'not guilty', he shall, without further form, be deemed to have put himself upon the country for trial , and the Court shall, in the usual manner, order a jury for his trial accordingly.' The arraignment marks the commencement of a trial by jury. Persons who are tried in the District Court for indictable offences are formally arraigned, in the presence of the jurors in waiting, and immediately before the jury is empanelled. Of course, a jury will only be empanelled if the plea is one of not guilty ." ( emphases added ) 175 In R v Janceski (2005) 64 NSWLR 10 Howie J considered the position under the Criminal Procedure Act. Relying on Nicolaidis his Honour said: "The presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial: R v Nicolaidis (1994) 33 NSWLR 362 at 367. But it serves no other purpose and I do not believe that it is a necessary step provided that there has previously been an indictment filed and provided that the accused has been arraigned on that indictment. The proceedings for trial on indictment commence upon the filing or presentation of a valid indictment. When the accused is first arraigned and pleads "not guilty" he is "taken to have put himself or herself on the country for trial": s 154 of the Act…" 176 In the present case the applicant was charged with the murder of his brother. He was arraigned and pleaded not guilty to the charge of murder but guilty to manslaughter. His arraignment marked the commencement of his trial (Nicolaidis) and his plea of not guilty "put him upon the country for trial." A jury was not required when the Crown accepted his guilty plea in full discharge of the indictment. A verdict of manslaughter was entered and the proceedings were finalised when he was sentenced. In my opinion he was relevantly in jeopardy of the murder charge. 177 Proposition 2 in Dabhade concerns the circumstance where the defendant has been placed in jeopardy but the charge is dismissed without a hearing on the merits. Rather than a plea of autrefois acquit Wright J justified the intervention of the court as the exercise by it of its jurisdiction to prevent an abuse of process. This proposition is consistent with the reasoning of Gleeson CJ, Heydon and Crennan JJ in Filipowski (at [14] and footnote (34)). The joint judgment in Filipowski refers with apparent approval to the statement in Spencer Bower, Turner and Handley that: "If a charge is dismissed, albeit without a hearing on the merits, the prosecution may not institute fresh proceedings on the same or an essentially similar charge or count. This may depend on the court's power to prevent an abuse of process rather than on the plea of autrefois acquit."([321] p 173) 178 This proposition is arguably inconsistent with the statement of Gaudron and Gummow JJ in Maxwell (at 529) to which I have referred in [164] above to the effect that a plea of guilty to manslaughter may give rise to a plea in bar to murder. For present purposes the inconsistency need not be resolved. Whether because a plea in bar is available or relief against an abuse of process, the court is concerned to protect against an inconsistency with the verdict of acquittal. In the present circumstances incontrovertibility depends upon there being a verdict not whether a plea of autrefois acquit is available. 179 Proposition 3, said to contrast with proposition 2, is that a summary dismissal where the charge is defective "either as a matter of law … 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" the defendant will not have been in jeopardy of conviction. Two cases are identified to support this proposition: DPP v Porthouse [1989] RTR 177 and Williams v DPP [1991] 1 WLR 1160. 180 As I understand proposition 3, Wright J had in mind the circumstance where the evidence available to the Crown, if accepted by the court, could not prove the offence as charged. The proposition does not require an evaluation of the evidence to determine whether it might be accepted; that would be a matter for a trial. If the available evidence could prove the charge as pleaded but the proceedings are dismissed because the jury could not be satisfied of the elements of the offence beyond reasonable doubt, the dismissal will found a plea of autrefois acquit. 181 It was upon this third proposition that the defendant failed in Filipowski. In that case the prosecution evidence tendered at the first trial, even if accepted, could not prove the offence charged. The ship from which the pollutant was discharged was not in waters to which the charged offence applied. Accordingly, as a matter of law a conviction could not be sustained. The evidence on its face, taken at its highest, was incapable of proving the offence alleged (see Dabhade at 341). 182 The joint judgment approves the summary of the principles from [59] of Spencer Bower, Turner and Handley's text, which is quoted in the extract from Filipowski set out [34] above. 183 The learned authors of Spencer Bower, Turner and Handley cite as authority for the proposition contained in the second sentence of their summary, the decision in Dabhade, in particular the passage at 341. The relevant passage is: "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] R.T.R. 177 and Williams v. Director of Public Prosecutions [1991] 1 W.L.R. 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 … or simply because the evidence on its face is incapable of proving the particulars of the offence alleged." 184 At first glance there may appear to be little difference between the passage from Dabhade and that from [59] of the text. Upon closer inspection there is a difference of significance. 185 The text outlines two situations in which there is no legal jeopardy. The first is where "the charge is defective". The second is where "as a matter of law the evidence available to the prosecution cannot support a conviction". These are expressed as two independent grounds. The enquiry in the first is as to defects in the charge (with no guidance as to the limits of what will constitute a defect); the enquiry in the latter is as to a lack of evidence in support of the charge such that "as a matter of law" no conviction could follow. 186 The passage from Dabhade expresses the overall enquiry as being directed to whether "it is apparent that [the charge] is defective." That is the test. The passage goes on to outline where a charge may be considered to be defective, giving two grounds. First, it may be defective "as a matter of law". Second, it may be defective "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". 187 The difference between the text and decision in Dabhade lies in the use in the text of the phrase "as a matter of law" not as a separate ground of defectiveness in relation to the charge, but as a standard to which any insufficiency of evidence must rise for legal jeopardy not to be found, with no enquiry as to the charge itself being defective. It is, of course, necessary to read the text mindful of the primary material upon which it relies. 188 Gleeson CJ, Heydon and Crennan JJ, in footnote (34) to [14] in Filipowski, express their approval of the passage from [59] in the text. However, their Honours were aware of the authority upon which the writers of the text rely. This is apparent from their Honours' reference in footnote (34) to the comments of Rougier J in Williams at 1170 as support for the passage from the text. Williams, and the cases to which it refers, reveal that, as Dabhade suggests, the evidentiary enquiry in relation to legal jeopardy is ultimately focused on the presence of prima facie defects in a charge. The relevant passage from Williams referred to in Filipowski reads as follows (at 1170): "Turning to the qualitative question [in relation to legal jeopardy], 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] R.T.R. 177 and in Jelson (Estates) Ltd. v. Harvey [1983] 1 W.L.R. 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." 189 The factual situations considered in Williams, Porthouse and Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401 respectively are instructive for understanding the import of the above passage from Williams. 190 In Williams, the defendant had undergone a roadside breathalyser test, which proved positive. He had then been taken to a police station and had given two samples of breath into an intoximeter, testing over the legal limit on both occasions, but in the case of one sample to a low enough extent that he was entitled to require a specimen of blood to be taken as well, a right which he exercised. The relevant legislation provided that, where a sample of blood had thus been taken, the breath specimens were not available for use in any subsequent proceedings against the defendant. In spite of this, the summons issued was framed in terms of the breath test results. At the hearing, a preliminary objection was taken by the defendant's solicitor to the summons, leading to the dismissal of the summons and the later bringing of a fresh summons, which this time referred correctly to the blood specimen. The conclusion of Rougier J, with which Taylor LJ agreed (at 1171-2), was as set out in the passage at 1170 quoted above, namely that the defendant could never have been convicted on the first summons, and hence was not in legal jeopardy, "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". 191 This conclusion is clearly directed towards a fundamental defect in the charge as laid; the evidence of the breath specimens upon which the charge was founded was, due to its unavailability and irrelevance given the blood specimen, such as could never have led to a conviction. Rougier J considered (at 1170) that this situation in Williams was closely aligned to those of Porthouse and Jelson. In Porthouse, an information preferred against the defendant was found at the hearing to be defective and was substituted with an alternative information. The defect in the first information had been to cite s 5 of the Road Traffic Act 1972 (UK) as its basis, but at the same time to phrase its particulars in terms of both ss 5 and 6 of that Act. The substituted information correctly referred to s 6 alone and was phrased in acceptable terms. An election was made to proceed on the second information, leading to the dismissal of the first. The basis of the judgment of the court (delivered by May LJ) was as follows (at 182): "In these circumstances, we prefer to rest our decision in the instant case upon the proposition that the first information was so faulty in form and content that the defendant could never have been in jeopardy upon it and thus its dismissal could not give rise to any defence of autrefois acquit on the second information." 192 Once again, this decision is directed towards the finding of a defect in the charge or information itself. In Jelson too, enquiry was directed towards a defect in a notice of motion brought by Jelson (Estates) Ltd, by which it sought committal of Harvey, the defendant, for contempt of a court order. The notice of motion as originally brought failed to comply with procedural requirements by omitting to state the particular breaches the subject of the complaint. No order was made at the hearing in relation to the motion, with neither the supporting evidence nor the merits of the claim being considered. A second notice of motion was served, which complied with procedural requirements. The defendant objected to the hearing of the second motion on the grounds of double jeopardy, Goulding J ruling against the defendant on the objection. On appeal, Cumming-Bruce LJ, with whom Dillon LJ agreed, considered that the reasoning of Lush J in his minority judgment in Haynes v Davis [1915] 1 KB 332 was authoritative in the circumstances. Lush J had concluded that, in determining legal jeopardy, one must look to whether the first matter was determined on the merits. In particular, Lush J referred (at 339) to the expression "acquittal on the merits" as involving: "[the] 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." 193 The situation in Jelson, as described by Cumming-Bruce LJ (at 1410), was that Warner J, the judge hearing the first notice of motion, "observed the irregularity on the notice of motion and decided that it would be wrong, that is to say unfair, to proceed to adjudicate on the merits when the grounds had not appeared from the notice of motion so that the defendant had not had the time specifically to consider those grounds". And as Dillon LJ stated (at 1411), "the technical point was taken for the defendant and was rightly acceded to by Warner J., that the notice of motion failed to comply with the rules and should not be investigated; it should be dismissed out of hand, as it was. It seems to me that he was never in jeopardy because the point was firmly taken and accepted by the judge at the outset of the hearing. The merits were never gone into." 194 It is a situation such as existed in Jelson that must have been contemplated by Lush J when discussing "reasons why the court cannot proceed to find if [a defendant] is guilty" (emphasis added). The word "if" is crucial. The issue is not that the court cannot proceed to find a defendant guilty (that is, to weigh the merits of the evidence); the issue is that the court cannot proceed to find if a defendant is guilty (that is, even to consider the merits of the evidence). A consideration such as that imports the sort of circumstances found in Jelson, where a defect in the motion meant (in the words of Dillon LJ above) that it "should not be investigated". It further accords with the factual scenarios in Williams and Porthouse, where there existed defects in the framing of the relevant charge or information that removed both the necessity and the opportunity for any consideration of the merits. 195 In my opinion it is necessary both to read the conclusion reached in Williams and to read [59] of the text in this light. That reading is not in conflict with Filipowski. In Filipowski the evidence in relation to the discharge was such that no conviction could ever follow; discharge into the particular body of water to which the relevant section of the legislation applied was not capable of being demonstrated on any reading of the evidence, leading to a prima facie defect in the proceedings. The court could not proceed to consider the question of guilt, as the charge as laid, in the context of the evidence available, was simply insupportable. 196 In the present case there is no suggestion of any defect in the indictment or that the applicant "was not liable to suffer judgment" for the offence of murder. It was not suggested that the evidence available to the prosecution could not "as a matter of law" support a conviction. All that occurred was the concession made by the Crown that the quality of the available evidence would not enable a jury to be satisfied beyond reasonable doubt that the applicant was not provoked by his brother's conduct in killing their parents. The position is quite different to Filipowski where the available evidence taken at its highest could not prove the offence as charged. 197 For these reasons I am satisfied that the applicant was relevantly in jeopardy when acquitted of the murder of his brother.

The conviction for manslaughter 198 Irrespective of whether the acquittal of his brother's murder gives rise to a verdict which the law will protect, the applicant was convicted of his brother's manslaughter. The essential elements determined by that verdict were that he intentionally killed his brother but did so under the provocation occasioned by his brother's act of killing their parents. But for the provocation the applicant would have been guilty of murder. 199 The applicant entered a plea of not guilty to murder but guilty to manslaughter. He was convicted of the latter. Whatever be the position in relation to the acquittal it could not be suggested that he was not in jeopardy of conviction for his brother's manslaughter. 200 Just as the law will protect a verdict of acquittal it will also protect a verdict of conviction. In Rogers Deane and Gaudron JJ said at 276: "To the extent that they prevent the prosecution of crimes for which an accused has either been acquitted or convicted, they prevent inconsistent decisions and serve to maintain the principle embodied in the maxim res judicata pro veritate accipitur." 201 There will be cases where the later proceedings, although not amenable to a plea in bar, will undermine or tend to undermine the integrity of the previous verdict of conviction. The present case is one illustration. The applicant was convicted of manslaughter and received a sentence with the greatest degree of leniency. The verdict was founded on his explanation that he only killed in circumstances of extreme provocation. A verdict of guilty for killing his parents would demonstrate that the original verdict was based upon a false premise and tend to indicate that the applicant was guilty of the murder of his brother. 202 In Carroll McHugh J refers to "the finality of a previous decision involved in an acquittal or conviction" (at [145]). There is no reason why the principles which have developed from the originally confined notions of double jeopardy should not extend to convictions. Both the interests of the individual and the public interest in maintaining confidence in the legal system require it.

The sentencing hearing 203 The remaining question is the consequence, if any, of the "findings" made by the sentencing judge. Howie J was of the view that although the sentencing judge had sentenced, as he was required to do, having regard to the agreed facts, this did not mean that he found them to be true. The facts agreed and provided to the sentencing judge indicated that the applicant came upon his brother who was in the process of igniting the body of their mother having previously stabbed both of them many times causing their deaths. Those facts necessarily excluded the applicant from being the killer of the parents. 204 However, there was no verdict acquitting the applicant of the killing of his parents. Furthermore, he has never been in any sense "in jeopardy" for the alleged killing by him of his parents. The sentencing judge was precluded from considering that possibility by the agreed facts. 205 Although sentencing proceedings require the sentencing judge to determine the relevant facts beyond reasonable doubt, it is for a limited purpose. The available evidence will either have been tendered at the trial, in which case the jury will have returned a verdict, or will be tendered at the sentencing hearing following the acceptance by the prosecution of a plea. In either case the decision making function of the judge is confined. If there has been a trial the judge must make findings consistent with the jury's verdict. If a plea has been entered, but the relevant facts are in dispute, the findings must nevertheless accord with the plea. If the facts are agreed the judge's determination will be confined by that agreement. 206 Although the limits of the principle of incontrovertibility have not been settled, informed by the values to which I have referred, I see no reason why facts "found" in the sentencing process should be elevated so that they cannot be controverted in other proceedings. Those facts are not "found" for the purpose of a finding of guilt or innocence but rather for the purpose of establishing the culpability of an offender where a jury has found him to be guilty of the offence charged or he has acknowledged his guilt of that offence by entering a plea. 207 The view that the incontrovertibility principle does not operate in relation to findings of fact in the sentencing process is most readily accepted where, as in the present case, the facts are found without a contested hearing. In that circumstance the court has not been asked to determine between competing versions of events or make its own finding. The role of the judge has been confined to acceptance of the evidence agreed by both parties. 208 Although it is no longer a relevant consideration this analysis confirms the difficulties which the doctrine of issue estoppel would give rise to if adopted in criminal proceedings. A concession by the Crown that it was the brother who killed the parents may found an estoppel in civil proceedings. However, criminal proceedings which include the sentencing process have a distinct character requiring the development of a separate body of principles. The view which I have come to is consistent with the decision of the Court of Appeal in Queensland in R v K; Ex parte Attorney General (QLD) [2002] QCA 260; (2002) 132 A Crim R 108.

Is there an abuse of process? 209 My analysis leads to the conclusion that the principle relating to the incontrovertibility of previous decisions is engaged in the present case. The factual basis for both the applicant's acquittal for the murder of his brother and conviction for his manslaughter are in conflict with his prosecution for the murder of his parents. However, the question remains whether there is an abuse of process warranting a permanent stay of proceedings. 210 In 1861 Cockburn CJ said in R v Elrington (1861) 121 ER 870 at 873: "[We] 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." 211 Over a century later in Connelly v DPP [1964] AC 1254 Lord Devlin said: "In my opinion, therefore, the principle stated by Cockburn CJ … necessarily goes beyond the principle of autrefois. I consider it very desirable that the two principles should be kept distinct, for one gives the defendant an absolute right to relief and the other only a qualified right … I prefer the modern development of this principle, which justifies it by the power to stop vexatious process . This, to my mind, is the true principle that is to be extracted from Cockburn CJ's statement of the law and the one that I think should be applied in the criminal law as it is in the civil." (at 1358) (emphasis added) 212 In the same case Lord Pearce said: "The above cases show that a narrow view of the doctrines of autrefois acquit and convict, which has at times prevailed, does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas." 213 In DPP v Humphrys [1977] AC 1 Lord Salmon said that the opinions of Lord Devlin and Lord Pearce "constituted powerful authority" for the exercise of the inherent power to prevent the abuse of process in the context of criminal proceedings (at 45-46). 214 To similar effect Lord Edmund-Davies said: "While judges should pause long before staying proceedings which on their face are perfectly regular, it would indeed be bad for justice if in such fortunately rare cases as Reg v Riebold [1967] 1 WLR 674 their hands were tied and they were obliged to allow the further trial to proceed. In my judgment, Connelly v Director of Public Prosecutions [1964] AC 1254 established that they are vested with the power to do what the justice of the case clearly demands … " (at 55) 215 Although the development of appropriate principles in England has not been without controversy (see Lord Morris in Connelly at 1300-1304 and Viscount Dilhorne in Humphrys at 26) the position is now settled in Australia: see Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Rogers at (255-256, 286-287); Pearce at [115]-[117] per Kirby J. 216 Abuse of process is not confined to the use of court processes for ulterior purposes but extends to proceedings which are vexatious or oppressive (Rogers at 255 per Mason CJ; Williams v Spautz at 520). The circumstances in which abuse of process may arise are varied and are not confined to those recorded in the decided cases (Rogers at 255-257 per Mason CJ). 217 There are a number of considerations. In Walton Mason CJ, Deane and Dawson JJ said that to determine whether criminal proceedings should be stayed as an abuse of process for litigating a case which had already been disposed of by earlier proceedings involved balancing: "[t]he requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice." (at 396) 218 See also Rogers (at 256 per Mason CJ and at 286 per McHugh J). 219 There are factors which favour the Court intervening to restrain an abuse of process. The submission that the applicant murdered his parents contrasts directly with the basis upon which the earlier verdicts were founded. A conviction for the murder of his parents would raise an inconsistency between the verdicts. Although that inconsistency will not be apparent on the face of the verdicts it is nevertheless a situation which the incontrovertibility principle seeks to avoid. It does not seem to me to matter that the earlier verdicts were more favourable to the applicant than they might have been. This is almost inevitably the case: see Carroll. 220 The second factor which weighs in favour of this Court's intervention is the recognition by the principles developed under the expression "double jeopardy" of the need to provide to the accused the full benefit of an earlier acquittal. It can be argued that that objective cannot be met if the jury in the contemplated trial is to be asked to make a finding which cannot be reconciled with the earlier verdicts. 221 It will be inevitable that at the applicant's trial the jury will learn of the death of the brother as well as the parents. The applicant's defence must be that he was not present when they were killed but came later to the scene and after his brother had killed them. Counsel will no doubt raise the fact that he has been acquitted of his brother's murder but convicted of his manslaughter. The reason for those verdicts will inevitably be disclosed, the jury being told that the Crown could not negative provocation. If the applicant was to have the full benefit of the acquittal for his brother's murder he could not be convicted of killing his parents. 222 Notwithstanding the obvious force of these submissions I have come to the conclusion that this is a case where this is not an abuse of process requiring the Court's intervention. One important consideration is that the earlier verdicts were entered without a hearing on the merits of the Crown case. When the incontrovertibility principle is raised in circumstances where the apparent inconsistency is with an assertion made by the accused in earlier proceedings which has not been tested, the justification for protecting the earlier decision from contradiction is significantly diminished. It would of course be different in civil proceedings where issue estoppel could be pleaded. There will be no difficulty in accepting that a prosecution for the murder of the brother would either be barred as of right, a plea of autrefois acquit being available, or the Crown, having accepted the plea, the proceedings should be stayed as an abuse of process. A person should not be placed in jeopardy for an offence of which he has been acquitted or a like offence arising from the same facts as those in evidence at the earlier trial (Filipowski at [49]). However, when the prosecution is for an entirely separate offence it cannot be reasonably suggested that the accused is being harassed by the prosecutor. 223 It would be unwise to attempt to identify the range of circumstances where, notwithstanding that the principles of incontrovertibility are engaged, further proceedings will be an abuse of process requiring the intervention of the Court. However, when in the present case the charge is murder, the most serious known to the criminal law, the public interest in the prosecution of the alleged offender must prevail over concerns as to the potential for inconsistencies between the verdict and the previous verdicts entered without a determination by the court of the charges on their merits (Connelly at 1364). Public confidence in the administration of justice requires the prosecution to proceed. 224 HULME J: On 5 April 1995, the Applicant was arraigned before Abadee J on a charge:- "For that he on 28 August 1993 at Woronora did murder Christopher Gilham" 225 He pleaded not guilty to that charge but guilty of manslaughter. The Crown prosecutor then stated that "the plea of manslaughter on the basis of provocation is accepted by the Crown in full discharge of the indictment". 226 After the tendering and admission into evidence without objection of some documents, the transcript records:- His Honour: Mr Crown, just assist me, please, what is the matter of provocation that has been relied upon? Crown Prosecutor: The prisoner having been confronted with the sight of both his parents deceased and having been informed by his brother, now deceased, that he, the brother, was responsible for the death of the two parents and, indeed, immediately thereafter setting fire to the body of the deceased parents. Crown Prosecutor: That is the case for the Crown. … 227 One of the documents admitted into evidence was an ERISP between investigating police and the Applicant. Another was a Statement of Facts by Detective Sergeant Ahern. In the statement he recorded that on 28 August 1993 police and fire brigade officers attended premises in Woronora and upon arrival discovered parts of those premises well alight. After the fire was extinguished, charred bodies of the Applicant's father, mother and brother Christopher were discovered in the premises and post mortem examinations revealed each had been stabbed many times. 228 The Applicant was arrested after it became apparent from his own admissions that he was responsible for the death of his brother. The Applicant then provided police with an account of events including seeing evidence and being informed by his brother that the latter had killed and set fire to his parents, the Applicant then reacting to this information by fatally stabbing his brother and then reporting events to a neighbour who notified 000. 229 The statement proceeds:- "The accused has given an account of events to Police which in their simplest form are a feasible account of what may have happened. The investigation to date has been unable to refute that scenario, despite a thorough scientific analysis and evaluation of the scene and available evidence." 230 Although he did not give evidence himself, evidence was then given on behalf of the Applicant. On 7 April 1995 Abadee J sentenced the Applicant by deferring sentence upon the latter entering into a recognisance to be of good behaviour and to appear to receive sentence if called upon to do so in respect of any breach of the recognisance. His Honour's remarks on sentence include the following:- "(after quoting the observation by the Crown set out above and commencing "the Prisoner having been confronted") I accept this statement as reflecting in summary form the evidence given before me. It is consistent with such. The matters summarised therein suggest an offence of manslaughter in circumstances of grave and, indeed, even extreme provocation… By his plea the Prisoner admitted that he has killed a man, in this case his brother. By his plea he has admitted to the offence of manslaughter… … The (Applicant's brother's) explanation for the killing of his parents, and I accept that their deaths were at his hands, has died with him." 231 The indictment that was before Abadee J charging the Applicant with the murder of Christopher Gilham bears a notation that the Applicant's plea was "Not Guilty of Murder but Guilty of Manslaughter" and the terms of the sentence imposed. The place provided on the back of the indictment for a statement of the verdict is blank and there is no other record thereon of any conviction or acquittal. 232 Between 7 April 1995 and 21 February 2006 a number of events occurred, a possible outcome of many of which was the earlier preferring of the charges now brought. Other members of the Court have detailed these and I need not repeat what they have said. 233 On 21 February 2006 the Director of Public Prosecutions preferred an ex officio indictment against the Applicant charging that on 28 August 1993 at Woronora the Applicant murdered Steven and Helen Gilham, his and Christopher Gilham's father and mother. On 9 October 2006, the matter came before Howie J when the Applicant was arraigned on both charges. He did not enter a plea but sought by Notice of Motion to stay the proceedings as an abuse of process. 234 On 21 March 2007 Howie J refused the application for a stay. On 4 April 2007 the Applicant sought leave to appeal against Howie J's decision. As amended, the Grounds of Appeal are that his Honour erred:- (1) in finding that the present proceedings did not controvert the previous acquittal of the Applicant on the charge of murder, (i) in particular, by holding that Abadee J did not find that the Applicant did not murder his brother; and (ii) further, by holding that the relief sought could not be granted in the absence of a positive finding that the Applicant was not guilty of murdering his brother, because he acted under provocation. (2) alternatively, in finding that the present proceedings did not controvert the previous conviction of the Applicant for manslaughter, (i) in particular, by holding that Abadee J made no finding of fact when he sentenced the accused for manslaughter. (ii) further, by holding that Abadee J made no finding that the Applicant acted under provocation, because the basis of the plea accepted by the Crown acknowledged simply that it could not disprove that the Applicant acted under provocation; and (iii) further, by holding that the relief sought could not be granted, because the Crown was not seeking to interfere with the Applicant's conviction for manslaughter. (3) in finding that appropriate warnings or directions, rulings on admissibility, or other orders would cure any prejudice suffered by the accused, as a result of delay and/or the loss of evidence; and (4) in failing to find that further prosecution of the accused is detrimental to the public interest in light of the delay in the prosecution and the reasonable expectation of the Applicant that he would not be prosecuted for these two offences. 235 The Chief Justice has concluded that leave to appeal in respect of grounds 3 and 4 should not be granted. I agree with his Honour in this regard and also with his Honour's reasons for those conclusions. 236 In summary form the argument of the Applicant in respect of grounds 1 and 2 was as follows:- (i) He had been in jeopardy of being convicted of murder and had been acquitted. (ii) He had been convicted of manslaughter. (iii) A foundation of both verdicts - either in the form of ground common to the prosecution and himself at that time or findings of Abadee J or both - was that his brother had murdered their parents and the Applicant had been provoked thereby. (iv) Any conviction of the Applicant on the present charges of murdering his parents would be inconsistent with one or more of the previous murder acquittal and manslaughter conviction. (v) There is a principle of law which precludes the Crown from pursuing further criminal proceedings against a person when the result of doing so would be inconsistent with previous decisions in proceedings between the Crown and that person.

Jeopardy 237 The Chief Justice is of the view that the Applicant was not in jeopardy in respect of the previous murder charge. McClellan CJ at CL has reached the conclusion that the Applicant was in jeopardy. On this issue I agree with McClellan CJ at CL. I agree also with his Honour's reasons for concluding that, the Applicant having been arraigned before Abadee J on the charge of murdering his brother and pleaded, the proceedings on that charge had reached the stage appropriate to that conclusion. 238 There remains the contention that, because the evidence available to the prosecution on that charge was insufficient to sustain a conviction, the Applicant was not in jeopardy. 239 Although the Applicant's plea of guilty to manslaughter and the Crown's decision to accept that plea in full satisfaction of the indictment meant that the full ambit of the evidence then available to the Crown was not disclosed, when regard is had to the statements and evidence made to or put before Abadee J and to which I have referred above, that the evidence available to the prosecution was insufficient to sustain a conviction is to my mind clear. In this respect I am unable to accept the distinction drawn by McClellan CJ at CL between evidence which "would not enable a jury to be satisfied beyond reasonable doubt that the applicant was not provoked" and evidence that "could not as a matter of law support a conviction". 240 The arguments and authority for and against the contention are considered at length in the reasons of the Chief Justice and McClellan CJ at CL and my consideration of the topic can accordingly be relatively brief. The strongest authority in favour of the contention are the remarks of Gleeson CJ, Heydon and Crennan JJ in Island Maritime Limited v Filipowski (2006) 226 CLR 328 at [20 - 24]. Their Honours expressed the view that there were 3 reasons for concluding that the Appellants in that case had not been in jeopardy on their first trial. The first reason was that the first set of summonses were on their face defective. The second was that it was plain on the face of the first set of summonses that no conviction could result from them. The third was expressed in the following terms:- "Thirdly, although the trial before Talbot J began as proceedings in which the prosecution was seeking to place the defendants in jeopardy by obtaining factual findings adverse to them, by the time the prosecution evidence had been tendered and the no case submission had been argued, it was plain that the only possible view of the evidence was that, as a matter of law, it negated any possibility of a conviction under s 27(1) because Pt 2 applied and Pt 4 did not. The question is whether the appellants "could have taken a fatal exception" to the summonses, not whether they did, or when they did; they were served before the trial with the affidavits on which the prosecution relied at the trial; and even if, contrary to the fact, the form of the summonses did not reveal that the point which eventually succeeded after the prosecution case ended could have been taken before it began, the evidence contained ample material on which it could have been taken."

241 In arriving at the conclusions they did the 3 members of the High Court quoted remarks of Dixon and Starke JJ in Broome v Chenoweth (1946) 73 CLR 583 and said that the principles apparent in the passages cited had been summarised in the following passage from Spencer Bower, Turner and Handley, "The Doctrine of Res Judicata" 3rd ed. (1996) p 32, para 59:- "(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." 242 Thus if the law is as stated in the third of the reasons of Gleeson CJ, Heydon and Crennan JJ, the Applicant was never in jeopardy. However, with respect to their Honours I do not believe that the law is as so stated. It would certainly be a surprising result if, every time it was held at the end of a Crown case that there should be a verdict by direction because the evidence could not support a conviction, the particular accused was never in jeopardy. The concept of "in jeopardy" would have an entirely new meaning. 243 McClellan CJ at CL has demonstrated that the quotation from Spencer Bower, Turner and Handley, "The Doctrine of Res Judicata" does not accurately reflect the decisions on which it was based and which were concerned with defect in the charges or informations. Considered in context and totality the remarks of Dixon and Starke JJ in Broome v Chenoweth (1946) 73 CLR 583 referred to by Gleeson CJ, Heydon and Crennan JJ were confined to defects in the indictment or information and also provided no support for the third of the reasons advanced by their Honours. 244 The third of the reasons was also not one embraced by Gummow and Hayne JJ who, at [35-37] relied, as did Gleeson CJ, Heydon and Crennan JJ in their first 2 reasons, on the terms of the summonses. This was the approach of Kirby J also at [73-75] and, it seems to me, of Callinan J at [94]. I acknowledge that in that paragraph his Honour did refer to "other members of the Court" but that reference was limited to identification of authorities to which his Honour drew attention and his Honour's conclusion is expressed in the sentence:- "As the judgment of Gummow and Hayne JJ holds, the appellants' plea of autrefois acquit was rightly rejected in that case because the appellants were not, in the strict legal sense, 'in jeopardy'." 245 In the circumstances, it is unnecessary for me to pursue the issue of whether, the "summary dismissal" referred to in the third proposition stated in R v Dabhade [1993] QB 329 quoted by the Chief Justice and McClellan CJ at CL is of any significance. 246 In short, I am satisfied that relevantly, the Applicant was in jeopardy in respect of the charge of murdering his brother.

Incontrovertibility 251 In Garrett v R (1977) 139 CLR 437 the accused was charged with rape. He admitted sexual intercourse but alleged consent. Over objection evidence was admitted that he had been tried previously on a charge of having raped the complainant on a earlier occasion and acquitted. In his directions to the jury, the trial judge had said the earlier acquittal was a neutral fact. At p445, Barwick CJ with the concurrence of Stephen and Mason JJ said that the statement that the acquittal was neutral was to deny the accused the full benefit of it. His Honour continued:- "The relevant principle is that the acquittal may not be questioned or called in question by any evidence, which, if accepted, would overturn or tend to overturn the verdict." 252 In R v Storey (1978) 140 CLR 364 it was held that, in a trial for rape, evidence tending to suggest that the complainant had been forcibly abducted with a view to being carnally known was admissible notwithstanding that the offenders had been previously acquitted of such forcible abduction though it was necessary that the jury be directed that they had to give full weight to the accused's earlier acquittal and the evidence had to be understood in that light. Of course it was consistent with the acquittal that the earlier jury had not been satisfied of either of the fact of forcible abduction or the relevant intent. 253 Barwick CJ at 370-1 pointed out that a verdict of acquittal, in contradistinction to a conviction, required no positive findings of fact, observing (at p372):- "The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. … where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in anywise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal. … But the citizen must not be twice put in jeopardy, that is to say as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvass the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded a akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles. In my opinion, the remarks of Lord MacDermott in Sambasivam v Public Prosecutor Federation of Malaya (1950) AC 458, sufficiently establish the basic principle though, as I have indicated, I would take the reference to res judicata to be confined to the fact of acquittal and not to extend to any fact supposedly found or denied in arriving at that verdict." 254 At p396-7 Mason J expressed the view that the principle of res judicata would preclude the Crown from challenging the effect of a previous acquittal. The principle did not necessarily entail the exclusion of evidence which might tend to suggest that an accused was guilty of an offence of which he had previously been acquitted and in an appropriate case the requirements of the doctrine might be satisfied by an "instruction" to the jury that the prior acquittal cannot be challenged and that the evidence, for what it may be worth, is to be understood in this light. 255 At p424-5 Aickin J with the concurrence of Stephen J agreed that evidence of the nature under discussion was admissible so long as it was made clear that the prior acquittal could not be challenged and the evidence must not be taken as showing or proving guilt on the prior charge. His Honour continued: "In the present case the evidence of the events at the railway station is therefore admissible, but it must be explained to the jury that the evidence taken together cannot be treated as proving abduction, but that the jury may accept or reject the evidence as to individual facts according to their view of the witnesses who gave such evidence." 256 At p408-9 Jacobs J expressed the view that it was not open to a jury in a later trial to conclude that all the elements of an offence for which a defendant was tried and acquitted in an earlier trial were proven. His Honour then posed the question, "what if an examination of the transcript of the earlier trial discloses that only one element of the offence was put in issue so that it can be concluded that the jury determined that issue in favour of the defendant." Observing that he did not think any short definitive answer could be given to the question, his Honour provided none. 257 In Rogers v R (1994) 181 CLR 251 the majority of the court held that tender of records of interview which had been held in an earlier trial inadmissible as not made voluntarily constituted a direct challenge to the earlier determination and invited "the scandal of conflicting decisions" and amounted to an abuse of process. Deane and Gaudron JJ with, it would seem the concurrence of Mason CJ (at p255) referred (at p273) to "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct" and (at p278) to "the unassailable nature of an acquittal." 258 The Respondent in R v Carroll (2002) 213 CLR 635 had been acquitted on a charge of murder. He had given evidence that he did not kill the deceased. In the proceedings which led to the appeal he had been convicted on perjury in respect of that evidence. The High Court held the conviction could not stand. 259 Gleeson CJ and Hayne J pointed out that the factual enquiries made at the two trials in the end came to focus upon the same issue namely whether the Respondent killed the victim. Recognising that the principle could be stated in various ways, their Honours (at p648) quoted from the remarks of Deane and Gaudron JJ in Rogers as to "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct", and from those of Barwick CJ in Garrett v R that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict". The emphasis was added by Gleeson CJ and Hayne J. 260 Their Honours also quoted from Connolly v DPP [1964] AC 1254 at 1364 where Lord Pearce had said:- "A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. …" 261 In dealing with the particular circumstances in the case before them, their Honours said:- "In the present case there was manifest inconsistency in the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the Respondent's sworn denial of guilt… Once such manifest inconsistency appeared then a case for a stay of proceedings was irresistible." 262 Later their Honours added:- "[45] The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. [47] … The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive. [48] To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided. … [50] Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental affect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z (2000) 2 AC 483, R v Arp (1998) 3 SCR 339 and R v Degnan (2002) 1 NZLR 280 are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial." 263 Gaudron and Gummow JJ observed:- "[93] We agree with the remarks of the Chief Justice and Hayne J in the present case respecting the decisions in Rogers and Garrett. Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition. [98] …The offence in respect of which there was an acquittal may comprise various elements presenting the ultimate issue for the jury's determination. More or less evidence (and inference invited from primary evidence) may have been tendered on one or more of those elements or the ultimate issue. Only some of those issues may remain alive and in contest when cases are closed. It is in respect of those live elements and the ultimate issue that what is said above applies. In the present case the only element that was alive in the murder trial was whether the Respondent had killed the deceased. … [103] This indictment is to be contrasted with a charge of perjury that relates not to an ultimate issue in contest in a previous trial, but to evidence given at such a trial by the defendant which, if subsequently proved to be false, would not directly impeach the prior acquittal. An indictment which charged, for instance, that the present respondent had committed perjury by testifying that he had been at the Royal Australia Air Force recruits' course at the time of the murder would answer that description. It might support an inference that he was wrongly acquitted, but would not necessarily negative the acquittal." 264 McHugh J stated the matter more widely. His Honour observed:- "[118] It is an abuse of process for the Crown to charge a person with an offence of perjury when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge… The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge but raises the same ultimate issue or issues as was or were involved in the acquittal. [127] … The issue is whether it was open to the Crown to charge Carroll with perjury when the resultant verdict on the perjury charge necessarily contradicted - or at all events had a tendency to undermine - the acquittal of the accused on the charge of murder. I do not think that there is any doubt that this was a course that the common law does not tolerate. …" 265 After quoting from the earlier decisions to which I have referred his Honour described as "fundamental" the rule that an acquittal of a criminal charge may not be questioned or called in question by any evidence by which, if accepted, would overturn or tend to overturn the verdict, words his Honour took from Garrett v R. 266 It is obvious that a number of the statements quoted are far wider than others. Indeed, it is impossible in my view to reconcile all of them. On the one hand there are those that prohibit evidence that "call[s] in question" or "tend[s] to overturn" a verdict, second trials where the verdict would be inconsistent "on the facts", and charges that place a citizen "at the risk of being thought guilty of an offence of which he has been acquitted" or proof of which "tends to undermine" a prior acquittal. On the other, there are those that prohibit challenge to a prior "verdict", look to the "purpose" to which evidence having a tendency to impugn a prior verdict is directed, or permit evidence which has an "incidental effect" of "demonstrating the error of an earlier decision". Others again invite attention to the "elements of an offence". And in the context of this case, what is meant by giving the Applicant "full weight" to his earlier acquittal?

Parties

Applicant/Plaintiff:

GILHAM

Respondent/Defendant:

REGINA

Legislation Cited (3)

Income Tax Assessment Act 1936(Cth)

Crimes Act 1900(NSW)

Criminal Procedure Act 1986(NSW)

Cases Cited (40)

CITATION: GILHAM v REGINA [2007] NSWCCA 323 This decision has been amended. Please see the end of the judgment for a list of the amendments.

AJS v The Queen (2007) 81 ALJR 1208 Barnes v Gougousis [1969] VR 1019 Broome v Chenoweth (1946) 73 CLR 583 Connelly v Director of Public Prosecutions [1964] AC 1254 Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 Director of Public Prosecutions v Porthouse [1989] RTR 177 Donaldson v Western Australia (2005) 31 WAR 122 Garrett v The Queen (1977) 139 CLR 437 Hackwill v Kay [1960] VR 632 Haynes v Davis [1915] KB 332 Island Maritime Limited v Filipowski (2006) 226 CLR 328 Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401 Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201 Maxwell v The Queen (1996) 184 CLR 501 Mraz v The Queen [No 2] (1956) 96 CLR 62 Norbis v Norbis (1986) 161 CLR 513 Pearce v The Queen (1998) 194 CLR 610 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 R v Dabhade [1993] QB 329 R v Elrington (1861) 121 ER 870 R v Gee (2003) 212 CLR 230 CASES CITED: R v Hazeltine [1967] 2 QB 857 R v Helmling (NSWCCA unreported 11 November 1993) R v Janceski (2005) 64 NSWLR 10 R v K; Ex parte Attorney General (Qld) (2002)132 A Crim R 108 R v Maxwell (1994) 34 NSWLR 606 R v McNeill (Ruling No 3) [2007] NFSC 4 R v Naraindeen (1990) 75 CR (2d) 120 R v Nicolaidis (1994) 33 NSWLR 364 R v Storey (1978) 140 CLR 364 R v VN [2006] 15 VR 113 Rogers v The Queen (1994) 181 CLR 251 Russo v Aiello (2003) 215 CLR 643 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 The Queen v Carroll (2002) 213 CLR 635 The Queen v Storey & Anor (1978) 140 CLR 364 Walton v Butler (2004) 150 A Crim R 341 Walton v Gardiner (1993) 177 CLR 378 Ward v Hodgkins [1957] VR 715 Washer v Western Australia [2007] HCATrans 056 Wemyss v Hopkins (1875) 10 LRQB 374 Williams v Director of Public Prosecutions [1991] 1 WLR 1160 Williams v Spautz (1992) 174 CLR 509 Spencer Bower, Turner and Handley, "The Doctrine of Res Judicata" 3rd ed. (1996)

The incontrovertibility principle will be engaged where the prosecution seeks to establish at a later trial one or more of the elements necessary to establish the earlier offence. [151], [156], [274], [275] The Queen v Carroll (2002) 213 CLR 635; Island Maritime Limited v Filipowski (2006) 226 CLR 328 explained. Garrett v The Queen (1977) 139 CLR 437; Rogers v The Queen (1994) 181 CLR 251; Pearce v The Queen (1998) 194 CLR 610 considered. Connelly v DPP [1964] AC 1254; Mraz v The Queen [No 2] (1956) 96 CLR 62; The Queen v Storey & Anor (1978) 140 CLR 364 referred to.

[2007] HCATrans 056

[2006] VSCA 111

[2007] HCA 48

[2004] QCA 456

[2002] QCA 260

(2007) 81 ALJR 1208

(1946) 73 CLR 583

(1998) 194 CLR 566

(2005) 31 WAR 122

(1977) 139 CLR 437

(2006) 226 CLR 328

(1985) 7 FCR 201