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[2008] WASCA 120
Court of Appeal (WA)
2008-06-06
Miller JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LANCEE -v- WILLERT [2008] WASCA 120
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Citation : LANCEE -v- WILLERT & ORS [2007] WADC 24
Practice and procedure - Application to strike out defence - Action for trespass to land - Assault and battery - False imprisonment - Malicious prosecution - Misfeasance in public office - Police officers attend at home of appellant to investigate a complaint of excessive noise - Prosecution notices alleging appellant failed to give her name, assaulted police officers and resisted police officers while performing their duties - Convictions recorded - Appeal conceded - Judgments of acquittal entered - Whether defence impeached acquittals - Whether defence an abuse of process
First Respondents : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
1 MILLER JA: I have had the opportunity of reading the reasons for judgment of Murray AJA. I entirely agree with those reasons and agree that, in the circumstances, leave to appeal should be granted, but the appeal should be dismissed.
2 At some time around 4.00 am on 25 April 2005 the first respondents, two police officers, went to the appellant's residence. They were responding to a complaint from a neighbour about excessive noise. As it is put in the respondents' submissions, 'an incident occurred'.
3 The detail of what happened has throughout been hotly disputed, but at least it seems to be clear that the officers engaged in a process of giving the appellant a noise abatement notice pursuant to the provisions of the Environmental Protection Act 1986 (WA), s 81. Under that section, an authorised person or police officer may give such a notice where they consider that an unreasonable noise has been or is being emitted from any premises. The direction to cease the noise may be oral or written as the officer thinks appropriate, and in this case it seems they were proposing to give the notice in writing. Once given, a person who receives the notice who fails to comply with the direction, without reasonable excuse, commits an offence.
4 Section 82 gives a power to enter premises and gives a power to require any person who was or is present on the premises from which the noise was or is coming, to give his or her name and address and the name and address of the occupier of the premises. It is an offence under that section to fail to comply with such a requirement. Under s 82(1) the right of entry is given to an authorised person or police officer, 'for the purpose of enabling him to give a direction, or to take or cause to be taken any measures' under the Act in respect of noise emitted from the premises.
5 It is not necessary or possible for this court to make findings about precisely what occurred, but apparently when the officers arrived at the appellant's home music could be heard coming from the house, and when they made their presence known it seems that it became even louder. A verbal exchange ensued at the front door. PC Reed was sent back to the officers' car to get a noise abatement notice. She returned with it and commenced to fill it out. The appellant demanded the officers' identifying particulars and they say they gave those particulars to her. In return, they required her to give her name. She refused and they told her she was
required to comply, under the Environmental Protection Act. After a further exchange, the officers say the appellant tried to close the front door.
6 PC Willert, who was effectively taking the lead on the part of the police officers, put his foot in the door. A fracas occurred, during the course of which both officers entered the house. Willert says he had warned the appellant that she would be arrested if she failed to give her name, and he did arrest her. In the course of the struggle Willert says the appellant seized him by the testicles. Reed became involved in the struggle, and she says she was kicked back into the front door, and was otherwise assaulted. Eventually, after further resistance, the police officers were able to restrain the appellant by handcuffing her.
7 Later, PC Willert issued four prosecution notices, charging the appellant with the following offences, all said to have been committed at about 4.30 am on 25 April 2005:
8 It is convenient to note at this point that the offence against s 82(2) of the Environmental Protection Act was punishable under that Act by a fine of $25,000. The offence was not punishable by imprisonment and therefore it was not an arrestable offence under s 564 of the Criminal Code, which was then the provision which provided a general power of arrest without warrant and a general power of entry upon premises for the purposes of making such an arrest.
9 The offences charged were either simple offences or capable of being dealt with summarily. The appellant pleaded not guilty and a trial was held in the Magistrates Court at Perth on 2 September 2005. The magistrate convicted the appellant of all four offences and she was fined.
10 She appealed under Pt 2 Div 2 of the Criminal Appeals Act 2004 (WA) to a single judge of this court. Such an appeal may be brought upon grounds in respect of which leave to appeal is granted: s 9. There is in evidence a copy of the appellant's appeal notice. It is annexure JGK 2 to an affidavit sworn by the appellant's solicitor and dated 18 January 2007. The affidavit says that the annexed appeal notice includes Annexure A and Annexure B to the notice. The annexures are not in the appeal book. Annexure B set out the grounds of appeal.
11 For present purposes, it is relevant to note that the first ground of appeal challenged the legality of the entry to the appellant's premises by reference to the alleged failure to comply with various matters under ss 81 and 81A of the Environmental Protection Act, said to be conditions precedent to the exercise of the power of entry under s 82(1) of that Act, with the consequence, so it was alleged, that the officers were trespassers and therefore were thereafter not performing a function of their office, or acting in the execution of their duty. Ground 2 directly challenged the magistrate's decision about the legality of the entry by asserting that his Honour failed to consider whether they had only used reasonable force, in the absence of which the entry would be unlawful, with the same consequence, it was asserted, that they would no longer be performing a function of their office or acting in the execution of their duty.
12 The judge granted leave on all grounds on 24 November 2005. His Honour directed that submissions and a chronology of events be filed by the appellant and the respondent, who was PC Willert, the officer who had issued the prosecution notices.
13 The submissions originally filed are not in evidence, but they are on file, and I note that the respondents' submissions originally conceded that the magistrate had made errors, but contended for a retrial. There is in evidence some supplemental submissions filed on behalf of the respondent very shortly before the hearing of the appeal on 23 February 2006. The submissions start from the point that the officers made their entry into the house to arrest the appellant for her failure to provide her name contrary to s 82 of the Environmental Protection Act. The submissions recite, as I have already noted, that the offence was punishable by a fine, was not an arrestable offence under s 564 of the Criminal Code, and they accept that under those circumstances the two police officers did not have lawful authority to enter upon the premises of the appellant for the stated purpose to arrest her.
14 Paragraphs 10 and 11 of the supplemental submissions are in the following terms:
15 In other words, it seems that the matter was put to the court on the basis that the respondent conceded the appeal in respect of all four charges and now no longer sought an order for their retrial.
16 On the hearing of the appeal, it is very evident from the transcript that there was no debate about the merits of the appeal. Counsel for the respondent Willert mentioned the supplemental submissions. The judge addressed counsel for the appellant, saying that 'in light of that' he proposed to make orders accordingly. Counsel for the appellant handed up a consent notice under the rules. It was signed by counsel for both parties and provided for orders that the appeal be allowed, that the convictions be set aside and that judgments of acquittal be entered on each charge.
17 On being provided with the notice and upon counsel moving for orders in those terms, his Honour said, 'They would seem to be appropriate.' After some further brief debate, his Honour made orders in terms of the consent. The transcript shows that the hearing commenced at 11.38 am and concluded at 11.42 am.
18 After the conclusion of the proceedings on appeal and the resultant acquittals, the appellant instituted civil proceedings by way of an action for damages, including, against Willert and Reed, a claim for aggravated and exemplary damages. The action was brought in the District Court.
19 The statement of claim is dated 27 July 2006. It pleads a number of causes of action. Firstly, it is contended that there was a forcible entry into the house without a warrant and without the appellant's consent, constituting a trespass upon her land. It is pleaded that this trespass was malicious because Willert and Reed are said to have entered the house for an improper or ulterior purpose, either to injure the appellant or to give either or both of the police officers a pretext to charge the appellant with assaulting a public officer or hindering a police officer in the execution of his duty.
20 A defence was filed on behalf of all of the respondents. It is dated 15 September 2006. In answer to the claim for trespass to land, and generally, the respondents plead a lengthy account of the facts from the point of view of Willert and Reed. It is material to note that they plead that the appellant displayed an aggressive demeanour from the time she opened the door, and she appeared to have been drinking.
21 Ultimately, they plead, the plaintiff attempted to close the door and Willert put his foot in the door. The respondents then plead that Willert had lawful authority to enter the premises with the use of reasonable force under s 82(1) of the Environmental Protection Act because he believed the appellant was the occupier of the house and he had the purpose of giving her a direction under s 81(1) of the Environmental Protection Act in respect of noise emitted from the premises.
22 They plead that when Willert put his foot in the door the appellant, 'unlawfully assaulted him by lashing out at him and trying to push him with both hands away from the doorway'. A struggle ensued, in the course of which the appellant and Willert fell over the doorway and into the house where he attempted to arrest her. She resisted and further assaulted him by clasping and squeezing his testicles. It is pleaded that Reed tried to help and was herself assaulted by being kicked and having her hair grabbed and her head slammed into the door. Ultimately, they plead, despite further violent resistance by the appellant, they were able to arrest and restrain her.
23 As mentioned, the defence alleges that Willert had lawful authority to enter the house under the provisions of the Environmental Protection Act and/or because the appellant had assaulted him and thereby committed an arrestable offence within the meaning of s 564 of the Criminal Code. In fact, when further particulars, dated 6 December 2006, were given they refer to 'the alleged arrestable offence' as being, 'unlawful assaults' committed upon Willert, a public officer then performing a function of his office. It is, of course, not to the point, so far as the proceedings before this court are concerned, to debate the merits of that pleading. I merely note the way it is put that if, after Willert was assaulted by the appellant, 'his actions amounted to entering upon the premises', it is pleaded that, 'he did so for the purpose of effecting the arrest of the Plaintiff for an arrestable offence'.
24 Further, it is said that Reed entered the house with lawful authority to assist Willert to make the arrest and to assist him to defend himself against the unlawful assault committed by the appellant when she grabbed Willert by the testicles. That the entry was with malice is, of course, denied and a specific pleading is added, that Willert acted with lawful authority and both Willert and Reed used only reasonable force in attempting to defend themselves, to aid each other in their defence against the appellant and to arrest her.
25 The statement of claim then advances a claim against each of Willert and Reed for the tort of assault and battery, allegedly committed by both Willert and Reed. It is said that the assault was particularly violent, commenced inside the house and continued after the appellant had been arrested and handcuffed, inside the house, outside on the front porch and while the officers were putting the appellant into the police van. It is pleaded that the appellant suffered extensive injury which required her hospitalisation and medical treatment, and assistance by family and friends during her recuperation. It is said the appellant suffered not only physical harm, but psychological harm, and it is pleaded that the assault and battery committed upon her was malicious for the reasons previously given and because the police were acting with an improper or ulterior purpose in the manner previously pleaded.
26 The defence to this allegation repeats the reasonable use of force and the reference to the unlawful resistance offered by the appellant to the attempt to arrest her, an arrest which the defence pleads was only completed with the assistance of two other police officers on the front porch of the house.
27 To these allegations the statement of claim adds a claim for false imprisonment at the house, in the van and subsequently at the hospital. Again, it is said that this imprisonment was with malice because it was for the improper purpose of vindicating the actions of the police officers in trespassing into the house and assaulting, committing battery on and injuring the appellant to the extent that she required medical treatment and hospitalisation. This allegation is denied.
28 An allegation of malicious prosecution is raised against Willert, who signed the prosecution notices, and alternatively against both Willert and Reed for instituting and continuing the proceedings maliciously, having regard to their improper purpose in trespassing into the house and assaulting and injuring the appellant. Necessarily, it is alleged that the proceedings were brought and continued without reasonable or probable cause because there was no reason to consider that the provisions of the Environmental Protection Act in relation to excessive noise had been breached, the officers had no lawful excuse to enter the house, to assault the appellant, to commit battery upon her, to injure her or imprison her, and in those circumstances she had a lawful excuse for reacting to their actions by defending herself. It is pleaded that the orders of the Supreme Court acquitted her of all charges. The respondents, of course, deny the allegations comprising this head of claim.
29 Finally there is a claim for misfeasance in public office against Willert and Reed which is denied.
30 The State is sued in the alternative if it should be held that Willert and Reed were not liable for the torts committed by them on the ground that they were committed without corruption or malice while purporting to perform the functions of a member of the Police Force. That is a reference to s 137 of the Police Act 1892 (WA) under which an action for tort does not lie against a police officer in those circumstances. However, under s 137(5), the State is liable for a tort committed by a member of the Police Force in such circumstances, but by s 137(6), not to the extent of an award of exemplary or punitive damages. The State accepts that operation of the provisions of s 137, but simply denies that the actions of Willert and Reed give rise to an action in tort.
31 I mention that because it seems to me that properly understood, the allegations in the statement of claim against each of the respondents and the manner in which they are defended directly raise, at a number of points and in a number of different contexts, the question of the purpose and the lawfulness of the entry and the conduct of the police officers, whether it was tortious, and whether that conduct was corrupt and malicious rather than that it was the case that the appellant failed to give her name when required, assaulted Willert and Reed while performing a function of their office, and resisted Willert when acting in the execution of his duty. Those matters of fact, rather than whether the circumstances constituted the commission of the offences charged, are clearly raised in the defence which pleads the denial of liability for the torts alleged, that the officers, with malice, trespassed into the appellant's house, committed assault and battery upon her, falsely imprisoned her, maliciously prosecuted her and generally were guilty of misfeasance in public office.
32 By an application made on 2 November 2006, the appellant moved under O 20 r 19 of the Rules of the Supreme Court 1971 (WA) for the defence to be struck out on the ground that the pleading, 'is an abuse of process, and will prejudice, embarrass and delay the fair trial of the action'. That application was heard by Keen DCJ on 28 February 2007. On 19 March 2007 his Honour delivered reasons for the dismissal of the application with costs: Lancee v Willert & Ors [2007] WADC 24.
33 His Honour focused his attention upon the argument presented for the appellant that the defence constituted an abuse of process because it impugned or detracted from the acquittals of the offences with which the appellant had been charged. It did that, so the argument was put, because the defence pleaded by way of denial of the appellant's allegations and by positive assertion, that Willert, indeed both police officers, had lawful authority to enter the appellant's house, each was performing a function of their office in attempting to arrest the appellant for the original assault upon Willert at the time when Willert was further assaulted and Reed was assaulted by the appellant, and that the appellant resisted Willert's effort to arrest her while Willert was acting in the execution of his duty as a police officer.
34 The acquittals, so it was argued, established, by reference to the presumption of innocence and the concession made by the respondent Willert on the appeal, that the appellant did not refuse to give her name, did not act so as to give the police officers lawful authority to enter her premises, or consent to them doing so, did not assault them as they performed a function of their office, and did not resist a lawful arrest. On the contrary, the acquittals established that such force as used by the appellant was lawful and in fact occurred in the course of defending herself lawfully against the unlawful force used by the police officers.
35 Keen DCJ did not accept those arguments. His Honour concluded that the acquittals established merely that, for whatever reason, the charges brought against the appellant had not been prosecuted and the elements proved beyond reasonable doubt so as to warrant convictions. The pleading by way of defence did not therefore controvert the judgments of acquittal ultimately recorded. In any event, his Honour said, were that so it would not inevitably lead to the conclusion that the pleading was an abuse of process and ought to be struck out on that ground.
36 His Honour noted that this was not, as in some of the decided cases, a case where the matters sought to be raised would undermine the finding in a criminal context previously made; nor was it a case where the abuse of process alleged to attend the pleading of the defence arose out of some ulterior motive for bringing proceedings. Here the civil proceedings were initiated by the appellant and his Honour could see no reason why, in the light of the acquittals in the criminal proceedings, the matters which arose might not be determined in the present proceedings on the lesser standard of the balance of probabilities. His Honour said he could see no abuse of process arising out of the defence as it currently stood and he dismissed the application.
37 From that decision, the appellant appeals to this court. Pursuant to s 79(1)(b) of the District Court of Western Australia Act 1969 (WA), the appeal requires the leave of this court, as the judgment of Keen DCJ is of an interlocutory character. But in my view no special consideration of the rules attendant upon the decision to grant or refuse such leave is required. Given the subject matter of the appeal, it will stand or fall upon its merits because of the importance of the issues raised in the context of the writ issued out of the District Court.
38 The grounds are lengthy and, in some respects, argumentative. To aid my consideration of the issues raised, I propose to extract them in summary form and deal with those issues rather than expressly address the individual grounds.
40 There is no dispute between the parties in relation to the existence of the principle of incontrovertibility and its potential application to an acquittal. The debate between them is as to whether the defence of the respondents in its terms challenges, impugns or tends to undermine or detract from the appellant's acquittal of the charges brought against her.
41 A useful starting point in this case is the decision of the High Court in R v Carroll (2002) 213 CLR 635; [2002] HCA 55. In that case, Carroll was originally tried for an offence of murder. He gave evidence at the trial and swore that he had not killed the victim. He was convicted upon the guilty verdict returned by the jury. On appeal, the conviction was quashed and a verdict of not guilty was entered. There are, to that point, factual parallels with this case.
42 Carroll was then indicted for perjury. He applied to stay the indictment as an abuse of process. The application was dismissed. He went to trial and was found guilty and convicted of perjury. He appealed and it was held by the High Court that the perjury indictment was an abuse of process and should have been permanently stayed because the prosecution had sought to controvert the acquittal on the charge of murder. The charge of perjury raised the same ultimate issue as that which had been raised in the trial for murder.
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. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial.
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.
45 It seems to me that the concept that the finality of judgment is an important principle in the application of the law generally, underpins much of the law in this area. Different terminology is used in different circumstances. There is often a general reference to questions of double jeopardy. The pleas of autrefois convict and autrefois acquit are examples of the application of this notion on the criminal side, as are doctrines of estoppel on the civil side. Although in particular applications the content and form of the principle may be variously expressed, the principle of finality is fundamental to the operation of the legal system, whatever may be the particular context of the litigation before the court.
46 Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 was a case which involved successive prosecutions for maritime pollution by oil. The first group of prosecutions resulted in acquittals. The second group of prosecutions involved identical facts but different statutory provisions. It was held that to proceed in that way was not barred by a plea of autrefois acquit and did not constitute an abuse of process.
47 At 343 - 344 [41] - [43], Gummow and Hayne JJ discussed the application to the case of the principle of double jeopardy. Their Honours considered that underpinning the application of this principle were three maxims, long a part of the law. The first was that it was in the interest of society that there be an end to litigation. The second was that what has been adjudicated is, unless set aside or reversed, to be taken as true, and the third is that no person should be twice vexed for one and the same cause.
48 I have said that what has been described as the principle of incontrovertibility finds its application in both criminal and civil cases. It was so held in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12. In that case a challenge was made, unsuccessfully, to the common law rule that an advocate is immune from suit for some matter arising out of the conduct of a case in court or for work done out of court which is directly connected with the way in which a case is conducted in court. The majority judgment was that of Gleeson CJ, Gummow, Hayne and Heydon JJ. At 17 - 18 [34] - [36] their Honours discuss what they describe as the 'central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances'. This is the finality doctrine. Their Honours give examples of its application and referred to the fact that, 'The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system.' Again, in that context, their Honours observed that there were various rules which reflected the continuing application of the notion of the finality of proceedings.
49 Later, their Honours observed that in this area of the law, not only was there no distinction to be drawn in relation to the application of the rules between civil and criminal cases, but in relation to criminal cases there is no distinction to be drawn between the application of the rules in relation to a conviction and a verdict of acquittal. In that regard, at 28 - 29 [76] - [80], their Honours said that the public need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct underpins the general incapacity to challenge both a conviction and an acquittal in subsequent proceedings.
50 There are cases where it follows from the acceptance of this principle that, because a piece of litigation would breach the principle of incontrovertibility, the later proceedings will be stayed. Carroll was such a case. On the other hand, the application of the principle may simply render evidence inadmissible. Such a case was Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437. In that case, the prosecution, on a charge of rape, sought to lead evidence of a previous rape upon the same complainant, although in the first case there had been an acquittal. The court held that the evidence in relation to the earlier occasion, if it had probative value in relation to the second occasion, involved a direct challenge to the previous acquittal, and on that ground the evidence was held to be inadmissible.
51 Rogers v The Queen (1994) 181 CLR 251 is a not dissimilar case. There, at a later trial, records of interview which had been held to be involuntary and inadmissible in an earlier prosecution for other offences were held to be inadmissible on the second trial, not because their admission would constitute a challenge to the result of the earlier proceedings, but because their admission would constitute a direct challenge to the determination against their admissibility made on the voir dire in the earlier proceedings. It would, the majority held, constitute an abuse of process effectively to allow the prosecution to re-litigate the finding about the admissibility of the evidence of the interview of the accused.
52 But such a result will not necessarily follow. In R v Storey [1978] HCA 39; (1978) 140 CLR 364 there had been a previous trial of the accused men for the offence of forcible abduction of a female complainant. They were acquitted. A charge of rape was laid. The prosecution adduced evidence which would tend to show that the accused men took the complainant away from a railway station by force, against her will, for the purpose of raping her. The defence was consent, but the accused were convicted.
53 The convictions were quashed on the ground that, although the evidence was properly admitted because of its relevance to the second charge, the trial judge had failed to properly explain to the jury that although it might be used to prove the rape, it must not be used to call into question the acquittal of the abduction offence. With respect, the distinction seems to me to be a fine one and the difficulty confronting the trial judge is manifest.
The infringement of the principle of incontrovertibility
54 It is necessary for a proper understanding of the principle of incontrovertibility to have a clear view as to when the principle may be infringed. In a criminal case, it is easy enough to understand when something happens which controverts a conviction, but it is less clear when there has been a detraction from the full benefit of an acquittal.
55 It will be recalled that in Carroll, at 540 [45], Gleeson CJ and Hayne J said that the proposition that an acquittal should be incontrovertible was one, 'which has not been held to preclude persons other that the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial'. At 651 [50] their Honours added:
Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings or the tender of evidence, which might have the incident 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 ... in such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.
56 One example of such a case given by their Honours was R v Z [2000] UKHL 68; [2000] 2 AC 483, where the question was dealt with upon the application of what was described as the principle of double jeopardy, simply another way of putting what I have been discussing as the principle of uncontrovertibility. In that case, Z was charged with rape. He had been tried for rape on four previous occasions in respect of different complainants. In three cases he was acquitted and in only one case was he previously convicted. The prosecution sought to adduce evidence from the four complainants as similar fact evidence upon Z's trial for the rape of a fifth complainant in order to negate the defence of consent or belief as to consent. The House of Lords held the evidence to be admissible, subject to the trial judge deciding that it satisfied the ordinary tests of the admissibility of similar fact evidence, despite the fact that if it had probative value it would be because the jury accepted that the conduct of Z on the earlier occasions would tend to show that he had raped the complainants in respect of whom he had been acquitted.
57 Lord Hope referred to the principle of double jeopardy at 487, saying:
It is obvious that this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which would result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the Court in the previous trial.
58 The leading judgment was that of Lord Hutton. At 505, having reviewed the authorities and relevant legal texts, his Lordship concluded that a criminal court, in the exercise of its discretion, had the power to stop a prosecution where the defendant was being prosecuted on the same facts or substantially the same facts as in an earlier prosecution which had resulted in an acquittal or conviction. This wider principle, going beyond the pleas in bar of autrefois acquit and autrefois convict is, as has been seen, equally part of the common law of this country. Beyond that, his Lordship held:
... evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. ... a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant has been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence.
59 Given that here the question is not as yet the admissibility of evidence, but the capacity to plead so as to raise issues of fact which, if established at trial, might have the effect of showing guilt of offences of which the appellant has been acquitted, it is the respondents' submission that that rationale has application in this case and to so plead cannot constitute, on that ground alone, an abuse of the process of the court. I think there is much to be said for this proposition.
60 The respondents submit that to plead in the way described does not controvert the acquittals. It does not detract from them in any way, viewing them simply as judgments of acquittal. It does not, the respondents argue, deny the appellant the full benefit of those acquittals, which, as judgments, will remain unchallenged. This is so, they argue, because a proper understanding of the effect of an acquittal is that it is no more than a judgment that the guilt of the accused of the offence charged has not been proved beyond reasonable doubt. It is no more and no less than that.
61 For the appellant it is argued that, at least in the circumstances of this case where the judgments of acquittal were entered by consent after a conceded appeal, the acquittals ought to be taken as necessarily involving the conclusion that Willert and Reed had no lawful authority to enter the appellant's house, that when they came into physical conflict with the appellant the officers were not therefore performing a function of their office, and nor were they acting in the execution of their duty. The offences of assault and resisting the police did not occur. I have mentioned enough about the case to demonstrate why, if that is correct, it may be submitted for the appellant that the defence of all the respondents, in its current form, is liable to be struck out as an abuse of process.
62 But it will be seen that the argument depends for its validity upon the proposition that an acquittal affirmatively establishes the appellant's innocence of the offences charged, not in the sense that her guilt has not been established to the standard required by the criminal law, but in the sense that the acquittals establish that the appellant did not commit the offences because, the assertion is, critical elements of the offences were disproved or held not to be the fact when the acquittals were recorded.
63 A plank in that argument is the proposition that McKechnie J, in accepting the concession made on behalf of the respondent Willert, must be taken to have been positively satisfied that the concession was well-founded in fact. I would agree that McKechnie J must have thought it was proper to accept the concession on the basis that it was open to be made, so as to permit the final judgment on the appeal to be entered and orders made by consent. But beyond that, his Honour did not need to go and there is no evidence that he did so.
64 However, I would reject the arguments for the appellant on the wider ground that they are misconceived having regard to the nature of a verdict or judgment of acquittal, whether recorded by a jury which gives no reasons, by a judge as a trier of fact or, again without reasons, in some manner such as occurred in this case, and indeed in Carroll. The submissions of the respondents are, in my view, correct and consistent with statements made in a number of the cases, albeit in some of them as obiter dicta.
65 One such statement relied upon strongly by Keen DCJ is that of Kennedy J in Mickelberg. The appellants had been convicted in the District Court of defrauding the respondent of a quantity of gold bullion. The director sued for return of the gold or damages. The statement of claim alleged the theft of the gold. The defence included the assertion that the appellants did not have and never had possession of the gold. The master struck out these paragraphs of the defence.
66 The appeal involved discussion of the admissibility of evidence of the convictions, the entitlement to plead those convictions in the statement of claim, and the capacity to plead by way of defence, facts directed to displacing the prima facie position established by proof of the convictions. In the course of his judgment, at 379, Kennedy J said (obiter):
If it be accepted that evidence of a conviction is admissible in subsequent civil proceedings, it does not follow that it should be permissible to lead evidence of an acquittal. An acquittal merely signifies that the Crown has failed to establish its case beyond reasonable doubt. The existence of the difference in the degree of proof required in criminal and civil cases requires the exclusion of proof of an acquittal as evidence of the accused not having done that which he is alleged to have done. In contrast, a conviction indicates that a jury has been satisfied as to the ingredients of the offence to a higher standard of proof than is required for civil purposes.
67 There are High Court decisions which support this view, which I must say, with respect, seems to me to be entirely uncontroversial. Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 is such a case. A person had been tried and acquitted of the murder of a person who died of strychnine poisoning. Civil proceedings were brought against the accused by one of the next of kin of the deceased, directed to establishing the unlawful killing and therefore that the accused could not take under the will. So these were civil proceedings, again before a jury, but on this occasion applying the civil standard of proof.
68 The court held that no estoppel could be raised in favour of the defendant arising out of the acquittal, nor could the court discern any reason of public policy why the plaintiff could not be permitted to proceed to establish the fact of the guilt of the defendant of the unlawful killing of the deceased. In other words, no abuse of process arose for the simple reason, as it was put in the judgment of Dixon, Evatt and McTiernan JJ at 710, that:
The plaintiff in the present proceedings is not bound by [the acquittal] as decisive of [the defendant's] innocence. Nor indeed do we think that it would be admissible against her as an evidentiary fact.
69 I have mentioned the case of Storey where accused persons were convicted of rape. Evidence was admitted which tended to show that they took the complainant from a railway station by force with intent to have intercourse with her. Their defence was that she consented. Previously they had been tried and acquitted of the offence of forcible abduction. The conviction was overturned, although the evidence was held to be rightly admitted, on the ground that the trial judge, in directing the jury, had not made it clear that the previous acquittal could not be challenged and the evidence must not be taken as proving guilt of the previous charge. In the course of his judgment, while discussing the principles applicable, Barwick CJ at 372 said:
It is, of course, a res judicatum that the accused was acquitted: found not guilty of the offence charged. But, as I think, no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum. But the citizen must not twice be put into 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.
70 The distinction made between the effect of the verdict and the lack of facts which may be taken to be established by the acquittal is clear. Barwick CJ was a member of the majority. Gibbs J was in dissent. His Honour would have held that there was no misdirection. His observations about the effect of the acquittal at 387 - 388 are, in my view, to the same effect as those of Barwick CJ.
71 A similar case is Washer v Western Australia (2007) 82 ALJR 33; [2007] HCA 48. The appellant was convicted in the District Court of WA for conspiring to possess methylamphetamine with intent to sell or supply. The drug was to be imported into WA from Queensland. He had previously been acquitted of a similar related conspiracy charge where the allegation was that the persons with whom the appellant conspired were different persons from those involved in the conspiracy of which he was convicted. The appellant sought to adduce evidence of the earlier acquittal. The trial judge held that it was inadmissible and that decision was upheld by the High Court. Storey was applied and the evidence was held to be irrelevant and inadmissible because to prove the acquittal would not have tended to disprove any part of the prosecution case, and if the evidence had been admitted the trial judge could not have given a direction which would have explained in terms relevant to the proof of guilt of the current conspiracy, how the appellant was to be given the full benefit of the acquittal.
72 In the course of their judgment, Gleeson CJ, Heydon and Crennan JJ said, at 42 [39]:
It was neither explicit nor implicit in the acquittal at the earlier trial that the appellant was not a drug dealer. For the purposes of the law the acquittal established that the appellant was not a party to a conspiracy with Whitsed and Bowles to supply drugs to others; nothing more, and nothing less.
In context, it is clear that when their Honours said the acquittal established that the appellant was not a party to the conspiracy earlier charged, they meant he was not proved to be a party to that conspiracy.
73 The same point is made by Gleeson CJ and Hayne J in Carroll at 646 [31], where their Honours are discussing the difference between autrefois acquit and autrefois convict:
Indeed, that must be so when it is recalled that a jury's finding of guilt depends upon the jury being satisfied beyond reasonable doubt that all elements of the charged offence have been proved, whereas the jury that entertains a reasonable doubt about any one of the elements of the offence is bound to acquit. Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.
74 More broadly, and in the quite different context of proceedings before a review officer on a claim for workers' compensation, where the question arose whether the decision of the review officer determined an issue which would arise in later proceedings brought by the employee for damages at common law, in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 the High Court discussed the fact that the reasons of the review officer spoke of the evidence failing to satisfy him that the worker's case had been established. At 385 [60] the High Court said:
In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way ... a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings.
75 Statements of the same kind are found in decisions of intermediate appellate courts: Kosanovic v Sarapuu [1962] VicRp 47; [1962] VR 321 at 338 per Dean J:
No fact is established by an acquittal. It means simply that the court is not satisfied upon the criminal onus of proof as to the guilt of the person charged. It involves no decision that the court would not have made a finding against such person upon the civil onus of proof.
76 See also Nicholas v Bantick [1993] TASSC 68; (1993) 3 Tas R 47. This was a case involving proceedings of the kind dealt with in Helton v Allen. Cox J dissented on the question whether the proceedings involved any abuse of process, but at 78 he expressed the law succinctly in relation to the point presently under discussion by saying:
The fact that an acquittal does not prevent relitigation in a civil case has been recognised and results in no inconsistency of finding, for an acquittal is not the equivalent of a finding of innocence. (Citations omitted)
77 A different view may have been taken by at least some members of the NSW Court of Criminal Appeal (a bench of five judges) in the recent case of Gilham v The Queen [2007] NSWCCA 323. Judgment was given in that case on 26 November 2007. On 8 December 2008 special leave to appeal to the High Court was refused. The facts of the case are notorious. In 1993, Gilham's parents and brother were stabbed to death. He was charged with the murder of his brother. His plea of guilty to manslaughter was accepted, expressly on the basis that the crime had been reduced from murder by provocation given by the deceased when he allegedly confessed to Gilham that he had murdered their parents.
78 Years later, in 2004 and 2005, inquests were held into the deaths of the parents and what is these days referred to as a 'cold case review' was conducted by the police. Following those further investigations, the DPP of NSW issued an ex officio indictment against Gilham, charging him with the murder of his parents. Gilham sought to have the proceedings on the indictment permanently stayed on the ground that the prosecution constituted an abuse of process contravening the principles of finality of litigation, incontrovertibility of decisions and the principle of double jeopardy. The decision of the judge at first instance to refuse the stay was upheld on appeal.
79 In a judgment with which Hidden and Latham JJ agreed, McClellan CJ at CL said, in relation to the acquittal of the offence of murder inherent in the conviction for manslaughter, that:
A lack of satisfaction that a fact has been proved beyond reasonable doubt does not establish any proposition. ... 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.
80 For myself, I consider that to be a difficult proposition. If it is right, it would tend to suggest that the appellant's argument in this case, that the defence tends to contravene the incontrovertibility principle, is right. For my part, however, I think there is no fact relevant to the civil litigation contradicted by way of the defence which must be regarded as having been established in favour of the appellant by the proceedings which, in the manner described above, ultimately resulted in the acquittal of the appellant of the four charges brought against her. To my mind, it matters not how the acquittals were arrived at.
81 Their legal effect flows from an understanding that in the course of the pursuit at first instance, and for a time on appeal, of the prosecution of the offences charged, there was never a point at which the appellant assumed any burden of proof, which rested throughout on the prosecution to establish her guilt beyond reasonable doubt. Despite the convictions originally recorded, this was a burden the prosecution ultimately failed to discharge. They did not establish the facts which would constitute the elements of the offences with which the appellant was charged. But equally, the acquittals did not establish the contrary facts in the appellant's favour. In my view, it is not therefore the case that to plead the facts to which the appellant takes objection by way of defence and to seek to establish them by evidence at trial, infringes the principle of incontrovertibility.
82 As I have mentioned, the appellant's application before the District Court under O 20 r 19 of the Rules of the Supreme Court was to strike out the defence on the ground that it was an abuse of the process of the court for the reason that it infringed the incontrovertibility principle. I have said that in my view the decision of Keen DCJ to the contrary involved no error, but if I am myself in error in that regard, I need to consider the impact of that view upon the question whether the proceedings by way of defence constitute an abuse of process.
83 In Rogers, a criminal case, of course, the question principally before the court was whether the doctrine of issue estoppel had any application in criminal proceedings. But the court was also required to consider whether what had occurred was an abuse of process. The matter arose in this way. In 1989, Rogers was tried for four offences of armed robbery. The prosecution sought to rely upon admissions in a number of records of interview. The trial judge ruled on the voir dire that the records of interview were inadmissible because not made voluntarily. The accused was acquitted on two counts and convicted on two others. In 1992, he was charged with a further eight counts of armed robbery. The prosecution again sought to rely upon admissions made in two of the records of interview which, in the 1989 trial, were ruled inadmissible. By a majority, it was held that to relitigate the question of the voluntariness of the statements made would be a direct challenge to the 1989 determination of that issue and was not permissible because it would be an abuse of process.
84 Mason CJ was a member of the majority. At 255 - 256 his Honour discussed the concept of abuse of process, referring particularly to the earlier decisions of the court, Williams v Spautz (1992)174 CLR 509 and Walton v Gardiner (1993) 177 CLR 378. At 255 Mason CJ said:
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.
See also the judgment of Deane and Gaudron JJ at 280.
85 McHugh J was in the minority, with Brennan J, but their dissent involved no difference in the statement of the law and, at 286, McHugh J said:
Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedure or step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.
86 In Rogers, the members of the court relied particularly on Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529, a decision of the House of Lords given in relation to the aftermath of the arrest, prosecution and conviction of men who became known as the Birmingham Six, members of the Irish Republican Army, who exploded bombs in two Birmingham public houses, killing 21 people and injuring 160 others. At trial, the evidence included signed statements. On the voir dire and before the jury it was alleged that the statements were involuntary, that they had been induced by assaults committed on the accused men by the police. The statements were admitted in evidence and the men were convicted and sentenced to long terms of imprisonment.
87 While they were in custody they issued civil proceedings, suing for damages for assaults allegedly committed upon them by police. Again, the proposition that they had been assaulted so as to make involuntary statements was relied upon. In the Court of Appeal the statements of claim were struck out as an abuse of process, a decision upheld in the House of Lords. Lord Diplock, with whom the other members of the House agreed, gave a judgment which, at 536, his Honour introduced, by saying that the case was about abuse of the process of the High Court. He continued:
It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal applications of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.
88 Later, at 541, his Lordship expressed shortly the ground for the conclusion that there was, in that case, in the statements of claim, an abuse of process when he said:
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
89 I accept that these statements in Rogers and Hunter are apposite in this case, and although the above cases were criminal cases there is, I think, no difference in the broad statement of the general principle insofar as it is applied to civil cases as well as criminal cases: see generally Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 and D'Orta-Ekenaike per Gleeson CJ, Gummow, Hayne and Heydon JJ at 28 [74] - [75].
90 Here, as has been seen, to make good the proposition that the defence should be regarded as an abuse of process, the appellant relies solely upon the contention that the incontrovertibility principle has been infringed. The difficulty with that, I think, is that although a strike-out application may undoubtedly be grounded in that way, having regard to the relevant authorities, that alone will not be enough for the court to conclude, in a case such as this, that the pleading constitutes an abuse of process. That such is the case is implicit in the material I have quoted from Carroll.
91 The majority in Nicholas came to the same view. At 61, Green CJ said:
The proceedings commenced by the plaintiff are regular and only in the most exceptional circumstances should a plaintiff be deprived of his right to have them fully determined after a full trial on the merits. I am not persuaded that the mere fact that the appellant's action will involve the litigation of an issue which was determined against him at the criminal trial is sufficient by itself to sustain the conclusion that his action is an abuse of the process of the court. Some additional element such as unfairness to another party or an improper motive is required.
Underwood J expressed himself in similar terms at 92 - 93.
92 Finally, as I have previously intimated, Gilham turned on the proposition that, despite the infringement of the uncontrovertibilty principle inherent in the later criminal proceedings, there should be no stay because to proceed did not constitute an abuse of process, having regard to the accepted tests. At [223], McClellan CJ at CL said:
It would be unwise to attempt to identify the range of circumstances where, notwithstanding that the principles of uncontrovertibility 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. Public confidence in the administration of justice requires the prosecution to proceed.
93 In separate reasons, Hulme J expressed himself in similar terms at [269] - [272]. In the last-mentioned paragraph his Honour said:
In themselves the verdicts for offences against the Applicant's brother say nothing about the Applicant's involvement in the death of his parents. It is only if one is permitted or required to consider the reasons for, or circumstances leading to, those verdicts that they become in any way relevant. Although allowing the charges presently brought against the Applicant runs the risk that there may be, in the words of Deane and Gaudron JJ in Rogers v R at 273, 280, 'the scandal of conflicting decisions', it would be a far greater scandal in my view if, because the Applicant had to be prosecuted in 1995 for one killing of which there was no doubt (even if the full story was not known), he can not be prosecuted now for 2 others of which he may be guilty.
94 I accept, of course, the above statements of principle in respect of the ground upon which the court may feel impelled to act to preserve its process from abuse. I would grant leave to appeal because, in my view, the matters raised by the appellant were substantial and fairly arguable. But I would dismiss the appeal. In my opinion, the approach taken by Keen DCJ involved no error. In my view, the pleading by way of defence did not constitute an abuse of process, even on the basis, which I do not think to be the case, that the pleading calls into play the incontrovertibility principle.
95 The writ was issued out of the District Court by the appellant. The respondents are merely seeking to defend it. It is not suggested that the matters pleaded in the defence would require to be struck out upon any other ground than alleged abuse of process. There is no suggestion that if the matters of fact pleaded can be made good by the defendants, they would nonetheless not be matters bearing upon the capacity of the appellant as plaintiff to make good her claims. In other words, there is no suggestion that the court's procedures are being utilised by the respondents for some illegitimate purpose, or for no other purpose than to mount a collateral attack upon the acquittals.
96 Having regard to the matters pleaded, it seems to me that to try out those issues involves no oppression or unfairness to the appellant in relation to the evidence she must adduce in support of her claims.
97 Nor do I see any hint that to allow the litigation to proceed to trial in its present pleaded framework would bring the administration of justice into disrepute. On the contrary, that would likely be the result if the respondents were to be shut out from raising legitimate matters of defence which would otherwise be available to them.
(2006) 226 CLR 328
(2005) 223 CLR 1
(1993) 177 CLR 378
(2002) 213 CLR 635
(2007) 82 ALJR 33
(1993) 3 Tas R 47
(2006) 226 CLR 256
(1977) 139 CLR 437
(1994) 181 CLR 251
(1978) 140 CLR 364
(1940) 63 CLR 691
(2004) 220 CLR 363