Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416

High Court of Australia|1998-09-10|Before: Callinan JJ

The application made by the appellant was a response to the inclusion in the indictment of all charges which were to be preferred arising out of the one incident. The gravamen of the appellant's complaint appears to have been that he was placed in hazard of the imposition of multiple punishments for what in substance was the one offence.

The Fifth Amendment to the Constitution of the United States includes a provision:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb".

It is settled doctrine that this provision, as a constitutional imperative, protects against two types of abuse, "multiple punishment" for a single offence and "successive prosecution" for the same offence[82]. The submissions for the appellant rather assumed that in this country "double jeopardy" was an independent doctrine of avoidance which of itself would found a stay application. That is not the position. Somewhat like notions of unjust enrichment, double jeopardy is a "concept" rather than "a definitive legal principle according to its own terms"[83].

In Australia, concerns with "double jeopardy" have come to be expressed at common law in differing ways by an evolutionary process which has crossed what often in the legal system is a false divide between substance and procedure[84]. Thus, even if a plea in bar is not available, successive prosecutions may be an abuse of process[85]. It should also be accepted that the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process. For the reasons given by the other members of the Court, there was no abuse of process here. The decision of the Court of Criminal Appeal to dismiss the appeal against conviction was correct.

However, the principles involved in the notion of "double jeopardy" also apply at the stage of sentencing. They find expression in the rule of practice, "if not a rule of law", against duplication of penalty for what is substantially the same act[86].

In the present case, I agree with McHugh, Hayne and Callinan JJ that the sentencing process miscarried and that the Court of Criminal Appeal should not have dismissed the accused's appeal against sentence. The appeal to this Court should be allowed to the extent that the order of the Court of Criminal Appeal dismissing the appeal against sentence should be set aside. It will be for the Court of Criminal Appeal to reconsider the appeal against sentence in accordance with the reasoning in the judgment of McHugh, Hayne and Callinan JJ.

The Supreme Court was not exercising federal jurisdiction. No question arises as to whether a court exercising federal jurisdiction may be required or authorised in the exercise of that jurisdiction to proceed in a manner which would involve an abuse of the process of that court[87].

Nor has any question arisen in this case with respect to the effect of "double jeopardy" where what is involved are statutory offences created by federal and State legislatures, or by two or more State legislatures. Constitutional questions may arise in each category[88]. These may be left for another day.

KIRBY J. This appeal, from the New South Wales Court of Criminal Appeal[89], concerns the law's response to a complaint about double jeopardy.

It has been said that the principle that a person should not twice be placed in jeopardy for the same matter is a cardinal rule lying "[a]t the foundation of criminal law"[90]. The rule has been explained as arising from a basic repugnance against the exercise of the state's power to put an accused person in repeated peril of criminal punishment[91].

Legal relief against double jeopardy was known to the laws of ancient Greece[92] and Rome[93]. It was also known to ecclesiastical law. In the Old Testament writings of the prophet Nahum, it is recorded[94]:

"What do ye imagine against the Lord? he will make an utter end: affliction shall not rise up the second time...Though I have afflicted thee, I will afflict thee no more."

In the law of England, the origins of the rule are sometimes traced to the conflict in the late 12th Century between the civil and ecclesiastical powers represented, respectively, by King Henry II and Archbishop Thomas à Becket[95]. However that may be, English criminal procedure developed rules of pleading which an accused could invoke where reliance was had on a previous acquittal or conviction[96]. In some jurisdictions of the common law, the rule has now been supplanted by constitutional[97] or statutory[98] formulae. It is also now recognised as one of the rules of universal human rights[99].

Judges, seeking to explain the law applicable to a complaint of double jeopardy, have remarked on the loose and imprecise expressions appearing in judicial reasons and textbook analyses[100]. Textwriters have declared that it is futile to search for a formula which provides "a single test to determine when a second prosecution for a different offence should be barred"[101]. In the morass of judicial authority there is a great deal of confusion and uncertainty. The precise issue raised by the present appeal has not previously been addressed by this Court[102]. The expanded understanding of the power of judges to stay criminal proceedings which would constitute an abuse of process[103] affords an opportunity to cut away at least some of the confusion and uncertainty of the old law and to place the provision of relief against double jeopardy on a clearer foundation.

Mr Douglas Pearce ("the appellant") is a 33 year old Aboriginal Australian of disadvantaged background. In March 1996, in the Supreme Court of New South Wales, he pleaded guilty to a number of counts found in two indictments presented by the Crown. The first contained ten counts, one of which was not proceeded with. In respect of the eighth count of that indictment - a charge of attempted murder - the appellant pleaded not guilty. The Crown accepted his pleas of guilty to the remaining counts in full discharge of that indictment. He also pleaded guilty to the single count found in the second indictment.

The counts of the first indictment referred to a series of events on 24 and 25 June 1994 in Yamba, New South Wales. There were three episodes. All of them involved violence. The first occurred at a convent (counts 1, 2, 3 and 4). The second involved events in the home of an elderly couple (counts 6 and 7). The third concerned a victim, Mr William Rixon, then aged 72 years (counts 9 and 10). It is the alleged overlap of the charges in counts 9 and 10 which gives rise to the argument of double jeopardy in this case.

Counts 9 and 10 relate to a sequence of events which involved the appellant entering Mr Rixon's home at night, armed with a heavy wooden object, in company with a co-offender. Mr Rixon lived there alone. The appellant repeatedly struck Mr Rixon with the wooden object. He took $45 from Mr Rixon's wallet and decamped. Mr Rixon was seriously injured. Eventually, he attracted the assistance of a neighbour. He was taken to hospital where he was found to have sustained major life-threatening trauma to his head, face and body. As a result of the trauma he lost the use of the left eye and suffered brain damage. He was confined to a nursing home where he was described as "a mere shadow of the man that he was before the assault"[104]. He is confused, becomes agitated and gets lost even in his own environment. His mental and physical states are deteriorating.

The single count of the second indictment concerned an aggravated sexual assault against a fellow prisoner in the Grafton Correctional Centre to which the appellant was committed. He pleaded guilty to this offence. It was accepted by the appellant's counsel that his offences were serious and required appropriate punishment according to law. But it was complained that errors in the trial had resulted in a sentence which was excessive.

When the sentencing proceedings commenced before the primary judge (Ireland J), counsel for the appellant sought an order that proceedings on the indictment be stayed as oppressive and/or an abuse of process. It was made clear that this application related to counts 9 and 10 of the first indictment. Specifically, counsel argued that, by preferring the charge in count 10, the Crown was placing the appellant in double jeopardy and requiring him to face "substantially the same charge twice". After hearing argument, the primary judge rejected this application. It was then that the appellant pleaded guilty to all charges, including those contained in counts 9 and 10.

The primary judge sentenced the appellant, in respect of all offences on both indictments, to a total minimum term of penal servitude of 11 years, with an additional term of 4 years[105]. On each of the ninth and tenth counts of the first indictment, the appellant was sentenced to 12 years penal servitude, less a period which it is unnecessary to detail. These sentences were to be comprised of minimum terms of 8 years (less pre-sentence custody) and an additional term of 4 years. The primary judge ordered that both sentences were to be served concurrently with each other and cumulatively upon the sentence imposed for the sexual assault charge contained in the second indictment[106]. He made no differentiation between the charges referred to in counts 9 and 10. In relation to the other counts of the first indictment, concerned with the two earlier episodes in Yamba, the primary judge sentenced the appellant to varying terms of penal servitude, all to be served concurrently with those imposed in relation to the two counts arising out of the episode of violence involving Mr Rixon.

This Court is not concerned generally with the components of the sentence or the way it was structured to deal cumulatively with the several episodes dealt with in the separate indictments. The only issue raised for us relates to the way in which the complaint of double jeopardy was dealt with at the trial. Specifically, it concerns whether the appellant was entitled, as of right, to relief in relation to one of counts 9 and 10 of the first indictment and whether the trial judge erred in refusing to grant a stay or in failing to differentiate between the punishments imposed in respect of the convictions entered on those counts.

The only relief sought by the appellant at the trial was the stay requested immediately before his pleas were taken. The overlap between the offences charged, which were suggested to give rise to double jeopardy, arose from the terms of the Crimes Act 1900 (NSW) ("the Act") upon which the counts were respectively founded. The offence in count 9 was based upon an alleged breach of s 33 of that Act. The offence in count 10 was based on s 110. Relevantly, the two sections provide:

"33. Whosoever: > > > maliciously by any means wounds or inflicts grievous bodily harm upon any person ... > > > > with intent in any such case to do grievous bodily harm to any person ... > > > > shall be liable to penal servitude for 25 years. > > 110. Whosoever breaks and enters any dwelling-house ... and while therein ... inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 25 years."

In refusing a stay, the primary judge acknowledged that each count referred to the infliction of grievous bodily harm upon a person, namely Mr Rixon. Each count arose out of the same continuous episode. However, there were two distinctions between them which the judge regarded as critical. Count 9, based upon s 33 of the Act, contained the element of specific intent to do grievous bodily harm. This was absent from count 10. Count 10 involved the element of breaking and entering a dwelling house. This was missing from count 9. Thus, although the facts were generally the same and the infliction of grievous bodily harm on the victim was the same, the counts, like the sections upon which they were based, contained differentiating elements of aggravation: specific intent to inflict grievous bodily harm in count 9 and invasion of a dwelling house in count 10.

Acknowledging that the point was "certainly not absolutely clear-cut in the way in which the authority is to be applied to these two counts"[107], the primary judge rejected the stay sought by reference to the criterion stated by Griffith CJ in this Court in Li Wan Quai v Christie[108]. He held that the respective offences contained different elements such that conviction of one would not necessarily lead to conviction of the other.

In the Court of Criminal Appeal, the relevant question was whether the primary judge had erred in refusing to grant the stay. Newman J gave the principal judgment. On the point now in contention, his Honour rejected the appellant's complaint. He said that the common law did not recognise as an injustice the existence of two separate offences for the one act[109]. He drew attention to the remarks of the primary judge to the effect that, while sentencing, he had kept in mind the totality of the appellant's criminality, the large number of offences and the fact that the maximum penalty provided by statute for the two in question was identical warranting "no distinction between them in the sentences to be imposed"[110]. Newman J went on[111]:

"In these circumstances, I am of the view that his Honour, in fact, was dealing with the two charges on a truly concurrent basis and not on a separate basis and, that being so, no miscarriage of justice has occurred as a result of his Honour declining the stay and no error, I believe, in law has arisen. > > I should add that in my view it may well have been better if the offences under sections 33 and 110 had been charged in the alternative. It seems to me that there was a misappreciation as to the effect of the High Court's decision in De Simoni[112] in relation to the charging of the offences under sections 110 and 33."

In the result, Newman J proposed that the appeal against conviction, relevantly on counts 9 and 10, be dismissed and that the appeal against sentence should also be dismissed.

Hunt CJ at CL emphasised that two different offences were provided by law. The prosecutor was entitled to charge both offences in the one indictment on the basis that, for example, the jury might not accept the allegation of specific intent charged in count 9. He acknowledged that, where there was an overlap of the elements constituting separate offences, even when charged in the same indictment and tried in the same trial, there could be a risk of double punishment against which a court should be vigilant. But he concluded that there was no such error in the present case[113]:

"[I]t is important to emphasise that the circumstances that both offences arise out of substantially the same facts must be taken into account when sentencing the prisoner where he is convicted of both offences, to ensure that there is no measure of double punishment for the same conduct. The judge did not expressly state that he was taking that circumstance into account, but I am not persuaded that he failed to do so. There is, it must be conceded, one passage in his remarks on sentence which is perhaps equivocal, but the total effective sentence which was imposed does not suggest to me that such an error has occurred."

Hunt CJ at CL and Bell AJ (who concurred without separate reasons) agreed in the orders of Newman J. In this way they became the orders of the Court of Criminal Appeal. This appeal comes by special leave from those orders.

In seeking to find and apply the rules against double jeopardy apt to the circumstances of the present case, it is useful to start with an understanding of its foundations. They are not confined to relief against double punishment for the one crime (reflected in the legal maxim nemo debet bis puniri pro uno delicto)[114]. There is an additional notion, although the cases often demonstrate the difficulty of keeping the two ideas separate[115]. The second notion derives from the rule encapsulated in the maxim nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa[116].

The reason why the law is concerned to avoid not simply the risk of double punishment but also that of repeated prosecution for criminal offences is obvious enough. It was explained by the Supreme Court of the United States in these terms[117]:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

Similar explanations have been given in this Court[118] and in other appellate courts of Australia[119] and overseas[120].

Accordingly, the expression of a principle confined to the prevention of double punishment for the same crime would be too narrow. It would conform neither with the statements of the applicable principle in national law, nor in international law[121]. By those statements of law a person is entitled to protection not only from the risk of double punishment (puniri) but also from vexation (vexari) by repeated or multiple prosecution and trial.

Successive protections: In Australia, there is no express constitutional prohibition against double jeopardy. The principle stated in international law has not been incorporated into Australian municipal law. Whilst international law may influence the elaboration of Australian common law where there is doubt or ambiguity, it is not, as such, part of that law[122]. In the present case, no legislative codification[123] or interpretative rule[124] is available to determine or guide the outcome of the appeal. That outcome must be found by examining established common law principles and practices which have been elaborated to provide relief against the dangers of double jeopardy in its several manifestations. In summary, such relief has been afforded in respect of criminal trials at successive stages of the process:

1. By the practices adopted by prosecutors. > > 2. By the plea of autrefois acquit or autrefois convict in answer to an offending count of an indictment. > > 3. By a plea in bar, not strictly autrefois acquit or autrefois convict, in reliance upon the fact that the circumstances constituting the gist or gravamen of a later charge are, in terms or in effect, the same as those constituting the gist or gravamen of the former charge[125]. > > 4. By the adoption of various practices in the conduct of criminal trials designed to reduce the risks of double jeopardy. > > 5. By the exercise of a judicial discretion to prevent an abuse of process which might otherwise arise if a person were subjected twice to prosecution or the peril of punishment inconsistent either with a previous conviction or a previous acquittal[126] or otherwise subjected to unfair oppression or prejudice[127]. > > 6. Where a person is lawfully convicted of separate offences which involve overlapping elements and reliance upon common facts, by ensuring that, in sentencing, double punishment for what is essentially the same conduct is avoided.

Some of the protections afforded in the foregoing list depend, at least in the first instance, upon the conduct of the prosecutor. Most depend upon the actions of the judge. Some (such as the pleas in bar and some rules of criminal procedure) are rights belonging to the accused as a matter of law. Others (such as the provision of a stay or the adjustment of punishment) depend upon the exercise of a judicial discretion or upon the quasi-discretionary function of judicial sentencing. It is desirable that the applicable rules should be as clear as possible. Only if this is so, will prosecutors know what they should do in framing multiple charges with reference to a single episode of criminal activity. Only then will the accused know the pleas as of right or the discretionary relief available against double jeopardy. Then only will the judge know how to respond to the kind of problem which has arisen in this case as in many others. Typically, as here, the judge will be called upon to rule on the point in the midst of a trial. To the extent that authority permits, the rules to be applied should be simple and such as to provide the judge with the powers appropriate to the circumstances to protect an accused against the risks of repeated prosecution and the risk of double punishment in respect of the same offence.

Before expressing the solutions which I would offer in the present case, I will illustrate, by reference to authority, the ways in which the common law has sought to avoid the unfairness of double jeopardy in criminal proceedings.

The prosecutor's discretion: The first defence against unfair exposure of an accused to the risks of double jeopardy lies in the prosecutor's discretion to frame criminal charges in a way that will prevent oppression and unfairness[128]. Because it is within the Crown's entitlement to shape its charges so as to avoid artificialities, an unrealistic view of the facts or the needless exposure of the accused to double jeopardy, it can be expected that the worst abuses will ordinarily be removed before an accused is required to plead[129]. In the normal case, in accordance with conventions which are ordinarily observed, prosecutors for the Crown can be trusted not to abuse their powers[130]. As a matter of practicality, in most cases, their decisions have a profound effect on the course which the criminal process follows[131]. Prosecutors must therefore be conscious of the vast expansion of statutory offences that has occurred during this century. This development has inevitably presented a risk of overlap and duplication of charges arising out of the same facts and circumstances. Without care, such duplication could result in the danger of double punishment for what is essentially the same conduct. It is a danger which should in all proper cases be avoided.

The dangers were smaller when the law afforded fewer and more generic criminal offences to the prosecutor's armoury. The multiplication of statutory crimes has necessitated the adoption of rules and practices to avoid outcomes offensive to a sense of justice. In many instances, where the elements of offences substantially overlap (although they may not be identical) sound prosecutorial practice will result in charges being expressed in the alternative. In the present case, in the Court of Criminal Appeal, Newman J stated his view that it might have been better if the charges in counts 9 and 10 had been preferred in the alternative[132]. There are very strong inhibitions upon the interference of courts in the exercise of prosecutorial decisions[133]. On the other hand, especially in recent times, judges have been unwilling to surrender entirely to the conscience of a prosecutor the fairness of subjecting an accused to the peril of prosecution and punishment for multiple offences arising out of the same facts and circumstances[134].

A practical difficulty which prosecutors may face is that judicial instruction can sometimes point in opposing directions. Thus, it is often said that a prosecutor ought, as far as reasonably practicable, to prosecute an accused for the offences which most aptly represent the essence of the criminal conduct of which he or she is alleged to be guilty[135]. It is also commonly said that, as a general rule, the prosecutor should ensure that all charges arising out of the same facts are combined in one indictment to prevent there being a series of indictments and trials on substantially the same facts[136]. Prosecutors must also take note of the "fundamental and important principle, that no one should be punished for an offence of which he has not been convicted"[137]. Where an accused might have been, but was not, charged with and convicted of an offence involving particular circumstances of aggravation, the judge imposing sentence may have regard to such circumstances only if they would not render the accused liable to greater punishment if charged and convicted of the more serious offence. Uncontested facts may be taken into account in sentencing where they are put forward as no more than background. But where it is suggested that they constitute circumstances of aggravation which, if proved, would have justified conviction of a more serious offence, it would be contrary to principle to punish the accused as if convicted of that offence where it has not been charged.

The decision of this Court in R v De Simoni[138] has stood for seventeen years. Its correctness was not questioned in this appeal. Although addressed to the principles governing punishment, necessarily whilst it stands[139] it has consequences for the exercise of prosecutorial discretions. In many cases, prosecutors will, understandably, frame the charges contained in the counts of an indictment in terms of several overlapping offences. They will do so to avoid the risk that an accused might escape punishment for circumstances of aggravation appearing in the elements of separate offences. Thus, in the present case, it was accepted for the appellant that if he had pleaded only to count 10 (based upon s 110 of the Act), there would have been a good argument that it would not have been open to the Crown to rely upon the specific intent to cause grievous bodily harm to Mr Rixon, which is an ingredient of the offence based on s 33 of the Act, alleged in count 9. That concession was properly made. In such circumstances, it is unsurprising that prosecutors should charge an accused with separate offences which they consider to be applicable and different. This then leaves it to the judge, at a later stage of the proceedings, to ensure against any impermissible double jeopardy which this course produces.

Autrefois convict and acquit: To afford an accused protection as of right against a requirement to stand trial and suffer the peril of punishment for a second time in respect of the same crime, the criminal procedure of the common law developed pleas described by Coke in his Commentaries as "auterfoitz acquite, auterfoitz convicte and auterfoitz attaint"[140]. By the time of Sir Matthew Hale's Pleas of the Crown, the spelling had been simplified to "auterfoits acquit", "auterfoits attaint" and "auterfoits convict". They related to the "mesme felony ou treason", ie the same felony or crime of treason. What amounted to "the same felony" already occasioned debate in the 17th century, as Hale's commentary shows. Hale illustrated the operation of the plea with these instances[141]:

"If A. commit a burglary in the county of B. and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal ... > > But if a man be acquit generally upon an indictment of murder, auterfoits acquit is a good plea to an indictment of manslaughter of the same person, or e converso, if he be indicted of manslaughter, and be acquit, he shall not be indicted for the same death, as murder, for they differ only in degree, and the fact is the same."

Serjeant Hawkins, in his Treatise of the Pleas of the Crown[142], emphasised that an acquittal (or conviction) might be pleaded in bar to a subsequent indictment but only for "the same crime". This strictness was apparently softened by the elaboration that the crime must be "in substance the same"[143], wherein we find the seeds of later uncertainty. Blackstone's treatment[144] evidenced "some slight signs of relaxation of the rules"[145]. He wrote[146]:

"[T]he pleas of auterfois acquit and auterfois convict, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime, 'or for such a charge as that, by statute or otherwise, the defendant might have been convicted upon it of the identical act and crime subsequently charged against him.'"

It was at this point in our legal history that there began to emerge the principle (noted by Blackstone) that, although "differ[ing] in colour and degree", two offences could for the purposes of the common law principle, be treated as relating to "one and the same crime"[147]. Wells J, in his most thorough review of this history in R v O'Loughlin, points out that, at the time the common law was received into Australia, the autrefois pleas had to relate to the same crime[148]. There was no hint that the accused might not be troubled twice by the same evidence. Nor was it suggested that a judge had a discretion in the matter. However, imprecision and equivocation were the result of accepting that a test of "substantial" identity in the crimes might be allowed. This softening of the formerly strict rule might be explained by the partial relaxation of rigidity in criminal pleading and practice and by the introduction of many new statutory crimes, inevitably involving overlap in their essential ingredients.

In the absence of a developed discretionary jurisdiction to stay a second prosecution judged oppressive (which was to come later) there was an understandable tendency on the part of the judiciary in the eighteenth and nineteenth centuries to enlarge the application of the autrefois pleas[149]. Nevertheless, the usual formulae applied to sustain the pleas were that the accused had undergone trial for the "same felony", "same crime" or "same offence". It is the last-mentioned expression which found its way into the Fifth Amendment to the United States Constitution [150]. In English authority, by which the governing principle is expressed, the rule is so stated[151]:

"[T]he law does not permit a man to be twice in peril of being convicted of the same offence."

In this Court, although the matter is sometimes complicated by the application of the language of criminal codes[152], the identity of the successive offences has repeatedly been stated as the test[153]. The rule has been explained as requiring not identical offences as such[154] but identity of the essential elements of the offences under comparison so as to establish that the accused has previously been in a relevant peril of conviction. In Li Wan Quai v Christie , Griffith CJ said[155]:

"In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first".

Thus the inquiry is not into what evidence might be given, but what must be proved to establish the commission of each of the offences. The test is therefore directed at the elements of the offences charged.

A similar test was adopted by the Supreme Court of the United States in Blockburger v United States[156]. Subsequently, that Court, in Grady v Corbin[157], by majority, concluded that the Blockburger test was not an exclusive definition of whether the "same offence" was established for constitutional purposes. A broader criterion was accepted. This directed attention to whether, to establish the elements of the later offence, the prosecutor would prove conduct constituting the offence for which the defendant had already been prosecuted[158]. In this, the Supreme Court gave a larger ambit to the "double jeopardy clause" of the Constitution as earlier, in dissent, Douglas J had repeatedly done[159]. His dissenting view had, in turn, drawn upon an expression of the English rule on double jeopardy in R v Elrington[160] to the effect that:

"[T]he 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."

More recently, however, in United States v Dixon[161], the United States Supreme Court has returned to the rule in Blockburger. It has overruled Grady. The majority in Dixon declared that Grady was not only wrong in history and principle, but that it had already proved unstable in application[162].

The most recent consideration of the scope of the plea of autrefois convict in England appears in the decision of the House of Lords in Connelly v DPP[163] which the English Court of Appeal applied in 1997 in R v Beedie[164]. In the latter decision, giving the judgment of the Court, Rose LJ concluded that the majority in Connelly v DPP had "defined autrefois in the narrow way ... that is when the second indictment charges the same offence as the first"[165]. In his Lordship's view, it was not sufficient that the offence was "substantially" the same.

In India, where the Constitution [166] provides a protection narrower than that afforded by the common law or by its United States constitutional counterpart[167], the words "same offence" have been repeatedly defined to mean an offence, the elements of which are the same as that for which the person was previously prosecuted or punished[168]. Although care must be exercised in the use made of the authorities of other jurisdictions founded upon a constitutional text, the common legal origins of such provisions in the common law of England and the similarity of the expression of the principle in national constitutions and international law make it pertinent to observe the common point reached in a number of countries with a legal tradition similar to that of Australia. In England, the United States and India, the most populous jurisdictions of the common law, a strict test is applied. It is one which looks to the elements of the successive charges. If those elements are different, there is no foundation for the plea of autrefois acquit or autrefois convict, or for invoking constitutional protection against double jeopardy. In such circumstances, it matters not that, in proof of a separate offence, reference may be made to facts common to each matter charged[169]. It is the definition of the offence and not the common evidence which grounds the legal complaint of double jeopardy.

There are two questions which I will mention but leave to another day, for they are not essential to this appeal. The first concerns the theoretical foundation for the pleas of autrefois acquit and autrefois convict. It has been suggested that autrefois convict can best be explained in terms of merger in judgment, whereas autrefois acquit relies upon concepts akin to issue estoppel or wider notions of a court's duty to control executive power[170]. For the time being these interesting questions can be left to scholars. Of more practical potential in Australia is the problem which can arise in a federation where one offence is created by the federal polity and the other by a State. In the United States, this problem has been dealt with under the "dual sovereignty" doctrine[171]. It has been held that a person may be convicted under both federal and state law for the same offence. Analogous problems have arisen for international law. It has been held that the applicable provision prohibits double jeopardy only with respect to an offence adjudicated in a given state[172]. Because in this case the two crimes alleged are of a single jurisdiction, viz New South Wales, the federal question may also be left to circumstances where it needs to be determined.

Alternative plea in bar: There are three possible difficulties with adopting a strict definition of the pleas of autrefois. The first is that it would confine a plea of autrefois acquit and autrefois convict to a very narrow class of case. Except for accidental oversight or lack of coordination between prosecuting authorities[173], it is virtually unthinkable that an accused would ever be charged with exactly the same offence twice. As a practical matter, as many cases show, the real problem arises from prosecution under different statutes where there is significant overlap between the elements of several offences. The result has been many borderline cases turning on very fine distinctions[174]. Confining narrowly the plea of autrefois acquit or autrefois convict might fail to address one of the suggested purposes of such pleas, viz, to relieve the individual from the abuse of the state's power of prosecution by a proceeding which relies on the accused's legal rights not a judicial discretion.

Secondly, this narrow view denies repeated statements of common law authority that the principle of the pleas of autrefois applies to offences which, although not exactly the same, are "substantially the same". As I have pointed out, such statements are by no means recent and can be found in Blackstone's treatment of why conviction of manslaughter was a bar to a later indictment of murder, "though the offences differ in colouring and in degree"[175]. They can be found in the suggestions that it is enough that the crimes should be the same "in substance"[176]. Griffith CJ reflected this thinking in his statement in Li Wan Quai v Christie that the charges "must be substantially the same"[177]. To like effect was the exposition of Lord Reading CJ in R v Barron[178] where a test of "exactly or practically the same" was expressed. Specifically, in Barron, it was held that acquittal of a charge of sodomy did not give rise to a plea of autrefois acquit to a second indictment charging the accused with gross indecency with the same person. This was because it was not open to the jury to convict the appellant of gross indecency at the first trial and because acquittal of the more serious charge (involving the element of penetration) did not, of necessity, require acquittal of the lesser charge. The first was not to be classified as simply an aggravated version of the second. It contained an additional element which was an aggravating circumstance. But it was one which made the two offences legally different.

Thirdly, so far as legal authority is concerned, the position is complicated by a line of decisions which appear to recognise a separate plea in bar, to repel a second or double prosecution for a more serious offence. This plea is usually traced to the reasons of Blackburn J in Wemyss v Hopkins[179] and of Hawkins J in R v Miles[180]. The existence of a separate plea, in addition to autrefois acquit and autrefois convict, was accepted by Dawson J in Saraswati v The Queen[181]. It has certainly given rise to a line of cases which suggest that there is a bar to an indictment based on the same "matter"[182]. This loose concept led Hawkins J in Miles to express the view that the bar related to future proceedings "for or in respect of the same assault"[183]. This was an apparent reference to a factual rather than a legal notion.

It is possible that the expansion of the idea in the common law plea of autrefois convict, evidenced in Wemyss and its progeny, explains the broader language of s 16 of the Criminal Code (Q)[184]. Griffith CJ, who should have known, recognised that what that section enacted was "not quite the same as the law which allows the defence of 'autrefois convict'"[185]. However that may be, the line of cases traced to Wemyss has encouraged some Australian courts to take a broader view of the pleas available to an accused alleging effective double jeopardy as a result of a second or double prosecution.

In R v O'Loughlin Wells J was prepared to contemplate "wider groups of cases" where "the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former [charge]."[186] This approach has been firmly rejected by some Australian judges[187]. But the "gist or gravamen" test has certainly been applied in other cases[188]. It will be observed that there are striking parallels here with the flow of judicial authority in the United States and England, notwithstanding their now somewhat different provenance. What began as a requirement of exact identity between the elements of the offences, was expanded to a wider class to provide protection against suggested double jeopardy, only to be contracted by more recent authority, insistent upon the presence of the same elements in the two offences.

The Crown urged that this Court should follow the same course. It suggested that it could more readily do so because the practical need for expansion of the pleas in bar has declined with the enlargement of the judicial discretion to provide a stay of a second prosecution or punishment (or a prosecution of a second charge) where this would be seriously unfair to the accused and oppressive or vexatious to the court's process.

Other protective rules of the trial: There are a number of rules governing the conduct of criminal trials by which the common law has, in practical ways, otherwise sought to reduce the risks of double jeopardy. For example, there are the rules which inhibit the Crown from unreasonably splitting the prosecution case[189]. In some jurisdictions the doctrine of issue estoppel has been held applicable to criminal cases[190]. The influence of the trial judge upon the prosecutor's decision to proceed with multiple charges may be greater in practice than it sometimes appears in legal theory[191]. In some jurisdictions, although not yet in Australia, the statutory discretions of Directors of Public Prosecutions to prosecute have been successfully challenged by judicial review[192]. None of these avenues of redress need be explored in the present case. They are mentioned to illustrate the fact that the legal remedies available to an accused complaining of double jeopardy are not necessarily limited to pleas in bar, the quashing of an offending indictment or the exercise of a judicial discretion to stay a second or double prosecution.

Judicial discretion to stay prosecution: In Connelly v DPP, Lord Devlin remarked[193]:

"If I had felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go."

This candid judicial admission helps to explain the "inextricable confusion in the law of double jeopardy"[194] as it developed around the pleas in bar. The judges sought to provide remedies for the perceived injustice of multiple prosecutions for what were, technically, different offences but, in substance, the same matter and referable substantially to the same facts and circumstances. The pleas in bar do not invoke a judicial discretion[195] but the result has been a great deal of artificiality and uncertainty which the courts themselves have often admitted[196].

The acceptance of a general judicial discretion to prevent abuse of the process of the courts is not new. It was affirmed by Lord Selborne LC and Lord Blackburn in their speeches in Metropolitan Bank Ltd v Pooley[197]. The existence of a judicial discretion to stay a second prosecution, in appropriate circumstances, was suggested by Lord Alverstone CJ in R v Miles[198] and by Lord Reading CJ in R v Barron[199]. It was affirmed by the House of Lords in Connelly v DPP[200], a fact recognised and accepted by the majority of this Court in Williams v Spautz[201]. The purpose of the jurisdiction is not only to prevent the accused from being twice vexed. It is also to prevent such conduct bringing the administration of justice into disrepute[202].

In Australia, any earlier doubts about the existence of the judicial discretion to stay a second prosecution or double punishment for what is "substantially the same act"[203] (suggested because of the conflicting opinions expressed in the House of Lords in Connelly v DPP[204]) must now be taken as settled in favour of the existence of the power[205]. Nor is the judicial discretion confined to cases which do not fall squarely within the principles giving rise to a plea in bar[206]. The power to provide a stay represents a separate and independent safeguard afforded by the law and exercised by the judiciary[207]. It does not require an applicant to prove that a second or double prosecution or punishment would be "well-nigh outrageous"[208]. But it does require that special circumstances be shown. The jurisdiction does not exist to give effect to a general judicial sense of "fairness", substituting this for the prosecutor's decisions (made within power) which are ordinarily exempt from judicial superintendence[209]. Clearly however, if oppression of, or prejudice to, an accused person can be demonstrated, the provision of a stay of proceedings upon the offending indictment, or count of the indictment, is warranted.

In R v Beedie[210], the English Court of Appeal concluded that the existence of the judicial discretion to stay charges on a second indictment (and one might add, a second charge on a single indictment) was one reason for adopting a narrow definition of the pleas of autrefois where that was appropriate. Their Lordships held that the proper exercise of such a discretion was to be preferred to further convoluted attempts to squeeze offences which contain significantly different elements into the classification of "substantial" or "practical" identity. Nor were they willing to expand still further the artificial categories attracting the innominate plea in bar derived from Wemyss. It may be expected that, as judges exercise their exceptional discretionary jurisdiction in such cases, prosecution practice will itself be improved. Unwarranted instances of double jeopardy will thereby be avoided.

Correction in punishment: There is one final recourse available to the judge to respond to complaints about double jeopardy. I refer to the exercise of the judicial function of sentencing. Of course, at the stage of sentencing, it is too late to prevent vexation by a second or double prosecution. But it may present the opportunity to avoid double punishment. A judge will doubtless keep in mind that entering a conviction is itself part of punishment. To enter a second conviction would, to that extent, constitute, without more, double punishment. In an appropriate case, therefore, the court hearing a second charge, where a person has been convicted under one of two applicable statutes, could take the fact of conviction on the first into account when deciding whether a second conviction should be recorded at all on the second and, if it is recorded, whether any additional punishment should be imposed[211].

If the case is not one for the application of a plea of autrefois, nor one for the quashing of the indictment or count of the indictment for multiplicity of charges, nor one in which a judicial stay is appropriate, special care must still be taken by the sentencing judge to avoid the imposition of punishment which imposes sanctions for criminal conduct in respect of which the offender has already received sentence[212]. The judge may make the sentences for multiple offences of which the accused is convicted concurrent if they are considered to be manifestations of the one criminal enterprise, transaction or episode. But that course can never be a complete answer to a complaint about double punishment. Leaving aside the consideration of punishment inherent in recording a second conviction, it remains the judicial duty to impose a sentence apt for each particular offence proved; but to do so in a way that avoids double punishment and takes account of any specific circumstances of aggravation reflected in the elements of the separate offences upon which the accused has been convicted[213].

It is tempting to regard the imposition of common concurrent sentences as a practical way of avoiding the risk of double punishment. There may be cases where it does so. But there are distinct risks in proceeding in that way. The duplication of sentences, although to be served concurrently, may yet amount to double punishment. The differential features of the successive offences (which alone justify double prosecution and punishment) may not be taken into account, adequately or at all. In short, the judicial discretion exercised in the consideration of punishment may not readily provide the means of curing the defects of unjustifiable vexation or the risks of double punishment. In the imposition of a sentence in such circumstances, great care must be taken to avoid double punishment for the same conduct. That care should be manifest in the reasons of the sentencing judge.

Against the background of this examination of legal history and authority, it is appropriate to record the essential arguments of the parties in these proceedings. At the trial, the appellant did not raise a plea in bar at all: neither at the point where his pleas were taken to counts 9 and 10 nor, once he was convicted of one of those counts, in objection to a conviction for the other[214]. The failure to plead autrefois convict was hardly surprising given that, at the opening of the trial, no such conviction had been entered. But, effectively, in this Court, the appellant suggested that a plea in bar analogous to autrefois was available to him to justify an order quashing one or other of the duplicated counts. He suggested that the primary judge ought to have assisted him to gain the benefit of that plea.

There are many procedural problems in the path of the course proposed by the appellant, given that the only relief which he sought at the trial was a stay. The decision in this case may make plain the sharp distinction which exists between, on the one hand, the procedures apt to a challenge to the indictment or plea in bar and, on the other, an application for a stay of the prosecution in the exercise of a judicial discretion. Assuming that the failure of the appellant to raise a plea in bar at the trial or formally to seek an order quashing the indictment or a count of the indictment could be overcome[215], the Crown submitted that there was no substance in the appellant's suggestion of a duplication of charges. Analysed by reference to their respective elements, the offences in counts 9 and 10 were not the same. One required proof of the additional and aggravating circumstance of a specific intent to cause grievous bodily harm to Mr Rixon[216]. The other depended upon establishment of the fact that the offence had occurred in a dwelling house[217]. Whilst acknowledging these separate and additional elements, the appellant submitted either that the two offences were "substantially" or "practically" the same or that the "gist or gravamen" of the one was the same as that of the other. In the alternative, the appellant submitted that the primary judge had erred in refusing to stay the prosecution on one or other of counts 9 and 10. The Crown disputed that this was a case attracting the exceptional remedy of a stay of one of the counts, still less of the indictment as a whole. In any case, it was submitted that the appellant bore a heavy onus to secure a stay[218]. No error of principle had been shown in the decision to refuse the stay at trial or in the confirmation of that decision in the Court of Criminal Appeal.

Finally, the appellant complained that the sentence imposed involved punishing him twice for what was essentially the same conduct, namely, the grievous bodily harm inflicted on his victim. Despite the order that the sentences for the offences in counts 9 and 10 be served concurrently, the failure to differentiate between them and to address the conduct common to each left it open to an inference that no differentiation had occurred in sentencing and that double punishment had been imposed. The Crown, whilst conceding that it would have been preferable for the judge, on sentencing, to have made it plain that he was avoiding duplication of punishment for the same acts and circumstances, argued that no miscarriage of justice had occurred. By making the sentences concurrent, the judge had effectively removed the risk of double punishment in this case.

This Court should accept the same test for a complaint about duplication in a second indictment or second charge as that now adopted in England, the United States and other jurisdictions of the common law. To make the complaint good, it is necessary to show that the subject of the second prosecution or charge is the same offence or substantially or practically the same. The last words allow for minor variations in the verbal formulae of offences under comparison. It is necessary in each case to analyse the essential elements of the offences said to be duplicated. Minor differences of language may be discarded. But elements which add distinct and different features (normally of aggravation) to the definition of an offence will result in differentiation between charges which is legally significant. To prosecute an accused in respect of such different offences is not to offend the rule of the common law against double jeopardy. There is jeopardy; but it is not double because the offences are not legally the same. By this test, the elements of the offences charged in counts 9 and 10 are different. They are not the same; nor are they substantially or practically the same. The evidence necessary to establish the elements in count 10 might fall short of establishing the specific intent alleged in count 9 necessary to secure a conviction of the offence against s 33 of the Act.

As the history of the innominate plea in bar (traced to Wemyss) demonstrates, it fails to offer a stable criterion by which to differentiate between cases where a second prosecution or count is permissible and cases where they are not. Talk of the "gist or gravamen" of offences is unavoidably ambiguous and therefore inescapably contentious. In the context of a plea by which an accused person is asserting a right to be relieved of a second criminal prosecution or charge, it is essential that the criteria to be applied should be clear. It is desirable that they be productive of a predictable outcome. Otherwise, time will be lost. Costs will be incurred in argument, at trial and on appeal, attempting to define the "gist and gravamen" of successive charges: a phrase necessarily involving impression.

The recognition of a larger judicial function to ensure that a person is not twice vexed or punished for what is substantially the same act provides a much more stable principle by which to relieve accused persons from the burdens of double jeopardy, whether of repeated prosecution (vexari) or double punishment (puniri). It should now be recognised that the attempt to express an acceptable plea, other than the strict plea of autrefois convict or autrefois acquit, has not been successful. Unless statute dictates a different course, the plea in bar should be confined to the strict application of the pleas of autrefois convict and autrefois acquit (or the analogous pleas where the charges appear in the same proceedings) defined in the narrow way I have described. Where there is suggested injustice or oppression occasioned by the bringing of further proceedings, the oppressive inclusion of overlapping charges or the subjection of a person to double vexation and the peril of double punishment, the relief which the law affords is by way of stay provided in the exercise of a judicial discretion in appropriate but exceptional cases. Those who represent accused should be alert to that facility when they scrutinise the indictment containing the charges which the prosecution brings.

The appellant's claim for relief based on the argument that the "gist or gravamen" of the offences charged in counts 9 and 10 was the same, therefore fails. But did the judge err in refusing a stay in the circumstances? I think not. Although it is true that the two offences charged contained a common reference to the infliction of grievous bodily harm upon the victim, the elements of each crime were relevantly different. The inclusion of each in the indictment was both prudent and proper, having regard to the requirements of De Simoni. I see no ground for the provision of a stay against the prosecution of these separate offences. The Court of Criminal Appeal was correct to reject the appeal against the trial judge's decision to refuse a stay.

This conclusion, which disposes of the complaint of repeated prosecution (vexari), leaves to be considered the risk of double punishment (puniri). There was no differentiation in the sentences imposed for counts 9 and 10. The sentencing judge expressly referred to the principle of totality[219]. He treated the three episodes of breaking and entering and related crimes as part of the same criminal transaction, distinct from the aggravated sexual assault in prison. He ordered that the penal servitude for the earlier episodes of breaking and entering should be served concurrently with the sentences imposed in respect of counts 9 and 10 but cumulatively on the sentence imposed of 3 years penal servitude in respect of the single count of sexual assault. Clearly, this was a course that was open to him.

Because the earlier episodes were less serious than those involving Mr Rixon, the sentences in respect of the conviction upon counts 9 and 10 became, as a practical matter, the most important ones in respect of the first indictment. Their importance was obvious. The differentiation between counts 9 and 10 was the justification for proceeding upon each of those counts separately and for punishing the appellant in respect of each. In the absence of any mention of separate consideration of the punishment proper to each offence, the appellant has a legitimate grievance about the primary judge's reasons for sentence. The primary judge failed to make express allowance for the fact that, although separate offences were charged and the appellant was convicted of each of them, each referred to substantially the same facts and circumstances. This omission was mentioned in the Court of Criminal Appeal[220]. But that Court declined to intervene on the ground that the total effective sentence imposed demonstrated no error. I agree that insufficient attention was disclosed to the risk of punishing the appellant twice for the conduct amounting to the infliction of grievous bodily harm common to counts 9 and 10. The result of a strict view as to the availability of the plea in bar and of the recognition that a judicial stay is confined to exceptional cases is that sentencing judges must make abundantly clear, in cases such as the present, that they have recognised and avoided the danger of double punishment. This was not done in the present case.

Ordinarily, this Court does not re-examine the correctness of sentences imposed upon individual prisoners. But in this case special leave has been granted. To the extent necessary, we must conduct a re-examination of the sentence passed upon the appellant. In his case, his extreme violence to Mr Rixon, the profound injuries which he occasioned and the circumstances of aggravation in which such injuries were inflicted, bear out the conclusion of the Court of Criminal Appeal that the total effective sentence imposed on the appellant was not erroneous. This was stated explicitly by Hunt CJ at CL (with whom Bell AJ agreed)[221]. It was implicit in the conclusion of Newman J. There would be no point in returning the matter to the Court of Criminal Appeal for resentencing the appellant unless this Court could affirmatively conclude that an error in the total sentence has been shown.

In matters of sentencing, this Court is not concerned with theoretical possibilities but with a real risk that the mistakes and omissions in the reasoning of the sentencing judge, that have been exposed here and in the Court of Criminal Appeal, resulted in a risk of double punishment of the appellant for the same, or substantially the same, conduct. If there were any possible risk that that had happened I would certainly agree in the conclusion reached, and orders proposed, by the other members of the Court. I fully agree with them that protection from double jeopardy extends to the sentencing of the accused, once convicted. However, in the circumstances of this case, I am not convinced that such a risk has been demonstrated. On the contrary, like the Court of Criminal Appeal, I regard the total sentence as correct. I see no injustice in this case which calls for reconsideration of that sentence by this Court. None is needed to vindicate the principles that the Court has affirmed.

Any reconsideration by the Court of Criminal Appeal would doubtless be supported by reasons different from those offered by the primary judge, indicating explicit differentiation in the punishment for the two offences and demonstrating the care expressly taken to avoid double punishment for the common elements of those offences. But in the brutal circumstances of the offences, I am wholly unconvinced that resentencing would result in a shorter sentence when the Court of Criminal Appeal has already considered, and expressly dismissed, that possibility. Why should it reach a different conclusion now when the facts, taken as a whole, remain exactly the same?

The reasoning of the primary judge was defective; that is true. But the total sentence which he imposed on the appellant was not. Our ultimate duty is to correct orders; not reasons. If the reasons are defective but the orders right, we should say so.

[1] R v Pearce, unreported, 1 November 1996.

[2] Unreported, 1 November 1996 at 10-11 per Newman J, 19-20 per Hunt CJ at CL, Bell AJ concurring.

[3] Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 223-224 per Barwick CJ, 230 per Taylor and Owen JJ, 243 per Windeyer J; Bowden (1981) 7 A Crim R 378 at 382-383.

[4] Wemyss v Hopkins (1875) LR 10 QB 378 at 381 per Blackburn J.

[5] [1804] USSC 11; 355 US 184 at 187-188 (1957).

[6] The position can be contrasted with the position that would have obtained if, in New South Wales, there were a simple offence of housebreaking (which there is not). In that event, all of the elements of what might be called the simple offence of housebreaking would be included in the elements of the offence created by s 110. If convicted or acquitted of one, the accused would have a plea in bar to the other. But that is not this case. Sections 105A to 115A of the Crimes Act 1901 deal with a group of offences under the heading "Sacrilege and Housebreaking". The offences dealt with include various forms of housebreaking - breaking and entering "with intent to commit felony therein" (ss 111(1), 113(1)) or breaking and entering and committing "any felony therein" (s 112(1)). Special provision is made if these offences are committed in "circumstances of aggravation" (which includes maliciously inflicting actual bodily harm) or in "circumstances of special aggravation" (which includes maliciously inflicting grievous bodily harm) whether occurring before, at the time of or immediately after any of the elements of the offence concerned. See ss 105A, 111(2) and (3), 112(2) and (3), 113(2) and (3).

[7] R v Emden [1808] EngR 195; (1808) 9 East 437 [103 ER 640]; R v Clark [1820] EngR 194; (1820) 1 Brod & B 473 [129 ER 804].

[8] R v Elrington [1861] EngR 901; (1861) 1 B & S 688 [121 ER 870].

[9] Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125 at 1131 per Griffith CJ; R v O'Loughlin (1971) 1 SASR 219 at 253-254 per Wells J; cf R v Barron [1914] 2 KB 570 at 575 per Lord Reading CJ - "practically the same" offence.

[10] O'Loughlin (1971) 1 SASR 219 at 258 per Wells J.

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

[13] [1905] HCA 70; (1905) 3 CLR 649.

[14] [1906] HCA 42; (1906) 3 CLR 1125.

[15] Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649 at 653; Li Wan Quai (1906) 3 CLR 1125 at 1131. See also Ex parte Spencer [1905] HCA 9; (1905) 2 CLR 250 at 251 per Griffith CJ; Paley's Law and Practice of Summary Convictions, 5th ed (1866) at 145; Broom, A Selection of Legal Maxims, 4th ed (1864) at 341.

[17] (1875) LR 10 QB 378 at 381 per Blackburn J.

[21] See the differing reports in 44 LJ (MC) 101, 23 WR 691 and 33 LT(NS) 9 discussed by Zelling J in Maple v Kerrison (1978) 18 SASR 513 at 522-523.

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

[23] [1932] USSC 4; 284 US 299 at 304 (1932).

[24] [1990] USSC 80; 495 US 508 (1990).

[25] [1990] USSC 80; 495 US 508 at 521 per Brennan J (1990).

[26] [1990] USSC 80; 495 US 508 at 521 per Brennan J (1990).

[27] [1990] USSC 80; 495 US 508 at 521 per Brennan J (1990).

[28] [1993] USSC 103; 509 US 688 (1993).

[29] [1993] USSC 103; 509 US 688 at 709 (1993).

[30] Grady v Corbin [1990] USSC 80; 495 US 508 at 511-513 (1990).

[31] [1990] USSC 80; 495 US 508 at 541-542 (1990).

[32] See also R v Brightwell [1995] 2 NZLR 435.

[34] Maxwell v The Queen (1996) 184 CLR 501 at 512 per Dawson and McHugh JJ, 534 per Gaudron and Gummow JJ.

[35] cf Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.

[36] [1981] HCA 31; (1981) 147 CLR 383.

[37] [1981] HCA 67; (1981) 148 CLR 32.

[38] [1981] HCA 67; (1981) 148 CLR 32 at 38, citing Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682.

[39] R v Thomas [1950] 1 KB 26 at 31 (emphasis added). Section 33 provided "[w]here an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, ... the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence." Although Humphreys J spoke of s 33, he stated that this provision "certainly adds nothing to, and it detracts nothing from, the common law": [1950] 1 KB 26 at 31.

[40] Locke, "On Leo Katz, Double Jeopardy, and the Blockburger Test", (1990) 9 Law and Philosophy 295 at 299.

[41] Acts Interpretation Act (Cth), s 30 (now repealed); Acts Interpretation Act 1890 (Vic), s 30; Acts Interpretation Act 1954 (Q), s 45 (as originally enacted); Acts Interpretation Act 1915 (SA), s 50; Interpretation Act 1898 (WA), s 13; Interpretation Act 1900 (Tas), s 13.

[42] See, eg, Interpretation Act 1889 (UK), s 33, and the Australian equivalents referred to above.

[43] See, eg, Crimes Act 1914 (Cth), s 4C; Interpretation of Legislation Act 1984 (Vic), s 51; Interpretation Act 1967 (ACT), s 33F; cf Sentencing Act 1995 (WA), s 11(3).

[44] See, eg, Crimes Act 1914 (Cth), s 4C(2); Interpretation Act 1987 (NSW), s 57; Sentencing Act 1995 (WA), s 11(2); Interpretation Act 1967 (ACT), s 33F(2).

[45] Barry, The Courts and Criminal Punishments, (1969) at 14-15.

[46] Radzinowicz, In Search of Criminology, (1961) at 181.

[47] cf R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at 38.

[48] Barry, The Courts and Criminal Punishments, (1969) at 14.

[49] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

[50] cf House v The King [1936] HCA 40; (1936) 55 CLR 499.

[51] See Crimes Act 1989 , s 444(2) and (3); Sentencing Act (NSW), s 9; see also Sentencing Act 1991 (Vic), s 16.

[52] L (1997) 91 A Crim R 270 at 282 per Ormiston JA.

[53] Criminal Appeal Act 1889 , s 6(3).

[55] The maxim is interest reipublicae ut sit finis litium.

[56] The maxim, res judicata pro veritate accipitur, appears in Coke on Littleton 103a.

[57] [1572] EngR 374; (1589) 5 Co Rep 61a [77 ER 148].

[58] Kersley, Broom's Legal Maxims, 10th ed (1939) at 220.

[59] Rogers v The Queen (1994) 181 CLR 251 at 277.

[60] See Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 at 606.

[61] R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 519.

[63] Horack, "The Multiple Consequences of a Single Criminal Act", (1937) 21 Minnesota Law Review 805 at 819-822.

[64] Nicholas v The Queen [1998] HCA 9; (1998) 72 ALJR 456 at 487; [1998] HCA 9; 151 ALR 312 at 354-355; Beattie, Crime and the Courts in England 1660-1800, (1986) at 375-376, 377-378; Durston, "The Inquisitorial Ancestry of the Common Law Criminal Trial and the Consequences of its Transformation in the 18th Century", [1996] GriffLawRw 7; (1996) 5 Griffith Law Review 177 at 182-193.

[65] Hunter, "The Development of the Rule Against Double Jeopardy", (1984) 5 Journal of Legal History 3 at 14-15.

[66] 3rd ed (1996), par 309 (footnotes omitted). See also R v Brightwell [1995] 2 NZLR 435 at 437.

[69] [1946] KB 414 at 419. See also R v Brightwell [1995] 2 NZLR 435 at 437.

[70] His Lordship observed, however, that "if during the course of a case it turned out that a man had been previously convicted or acquitted of the same offence with which he was then charged, the court would, of course, allow him to plead it and would give effect to that plea": [1946] KB 414 at 419.

[71] See the course of the litigation in Middlesex Special Commission [1833] EngR 783; (1833) 6 Car & P 90 [172 ER 1159]; R v Bowman [1833] EngR 897; (1833) 6 Car & P 101 [172 ER 1164]; R v Middlesex Justices, In re Bowman [1834] EngR 451; (1834) 5 B & Ad 1113 [110 ER 1104]; R v Bowman [1834] EngR 629; (1834) 6 Car & P 337 [172 ER 1266].

[72] (1994) 181 CLR 251 at 276-277 (footnotes omitted).

[74] Flatman v Light [1946] KB 414 at 419. The same is true with respect to reliance upon autrefois convict: Wemyss v Hopkins (1875) LR 10 QB 378 at 381.

[76] [1932] USSC 4; 284 US 299 at 304 (1932).

[77] [1993] USSC 103; 509 US 688 at 716-717 (1993).

[79] See Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 at 445; R v Davis [1982] 1 NZLR 584 at 590-591; Rogers v The Queen (1994) 181 CLR 251 at 277-278.

[80] Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119 at 129.

[81] [1986] HCA 50; (1986) 161 CLR 119 at 128.

[82] United States v Dixon [1993] USSC 103; 509 US 688 at 696, 704 (1993).

[83] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 378; Hill v Van Erp (1997) 188 CLR 159 at 239.

[84] See the remarks of Fullagar J in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 286.

[85] See Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 521; Rogers v The Queen (1994) 181 CLR 251.

[86] R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at 38.

[87] Nicholas v The Queen [1998] HCA 9; (1998) 72 ALJR 456 at 473-474; [1998] HCA 9; 151 ALR 312 at 335-336.

[88] See as to the latter, Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Leeming, "Resolving Conflicts between State Criminal Laws", (1994) 12 Australian Bar Review 107; cf Heath v Alabama [1985] USSC 244; 474 US 82 (1985).

[89] R v Pearce unreported, New South Wales Court of Criminal Appeal, 1 November 1996.

[90] Cullen v The King [1949] SCR 658 at 668; cf R v King [1897] 1 QB 214 at 218.

[91] Cullen v The King [1949] SCR 658 at 668; Green v United States [1804] USSC 11; 355 US 184 at 187-188 (1957); Cooke v Purcell (1988) 14 NSWLR 51 at 55-56; cf Westen and Drubel, "Toward a General Theory of Double Jeopardy", (1978) Supreme Court Review 81 at 84.

[92] See Jones, Law and Legal Theory of the Greeks, (1956) at 148: "The main concern of a man brought into court was to win a verdict by one means or another, for once tried he could not be prosecuted again on the same charge, the rule ne bis in eadem re being accepted in Athens if not in Sparta". See also Demosthenes' speech 'Against Leptines' in 355 BC, "Now the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort.": Demosthenes I, (Vance trans 1962) at 589 as cited in United States v Jenkins [1973] USCA2 736; 490 F 2d 868 at 870 (1973); affmd [1975] USSC 38; 420 US 358 (1975).

[93] See eg Digest of Justinian, Book 48, Title 2 "Accusations and Indictments" n7; Radin, Roman Law, (1927) at 475; Bartkus v Illinois [1959] USSC 91; 359 US 121 at 151-152 (1959).

[94] I Nahum 9, 12 (King James Version). St Jerome drew from this the rule that God does not punish twice for the same act. See Bartkus v Illinois [1959] USSC 91; 359 US 121 at 152 (1959) per Black J.

[95] Friedland, Double Jeopardy, (1969) at 326. According to other writers, the acceptance of the doctrine by the common law from ecclesiastical law (derived in turn from Roman law) was much more hesitant and intermittent and was not the result of a single event. See Cooke v Purcell (1988) 14 NSWLR 51 at 54-55.

[96] See R v O'Loughlin [1971] 1 SASR 219 at 239-252 where the history is traced by Wells J; Friedland, Double Jeopardy, (1969) at 5-15; Sigler, Double Jeopardy: The Development of a Legal and Social Philosophy, (1969) at 1-37.

[97] See eg United States Constitution, 5th Amendment; Canadian Charter of Rights and Freedoms, Art 11(h); Constitution of India, Art 20(2); Constitution of the Republic of South Africa, Ch 3, s 25(3)(g); Constitution of Papua New Guinea, ss 37(8) and 37(9); Constitution of the Solomon Islands, ss 10(5) and 10(6).

[98] See eg Criminal Code (Q), ss 16 and 17: R v Gordon, ex parte Attorney-General [1975] Qd R 301; Criminal Code (WA), s 17: Phillips v Carbone (No 2) (1992) 10 WAR 169; Criminal Code (Tas), s 11: Enslow (1992) 62 A Crim R 119. See also the terms of the Interpretation Act (UK), s 33 and its derivatives discussed in Friedland, Double Jeopardy, (1969) at 110-113; Bill of Rights Act 1989 (1990) (NZ), s 26(2). There is no precise equivalent in New South Wales.

[99] International Covenant on Civil and Political Rights, Art 14.7: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country". See Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary, (1993) at 272-273. See also European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No 7, Art 4(1); American Convention on Human Rights, Art 8(4).

[100] See eg R v O'Loughlin [1971] 1 SASR 219 at 238.

[101] Friedland, Double Jeopardy, (1969) at 93.

[102] But see Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125 at 1131; Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 13.

[103] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520-521; Cooke v Purcell (1988) 14 NSWLR 51; Connelly v DPP [1964] AC 1254; R v Beedie [1997] EWCA Crim 714; [1998] QB 356 at 366-367.

[104] Report of Dr David Hope (20 March 1996). Quoted by Ireland J, R v Pearce unreported, Supreme Court of New South Wales, 28 March 1996 at 8.

[105] Pursuant to the Sentencing Act (NSW), s 5; cf R v Moffitt (1990) 20 NSWLR 114.

[106] R v Pearce unreported, Supreme Court of New South Wales, 28 March 1996 at 21 per Ireland J.

[107] R v Pearce unreported, Judgment on application for a stay, Supreme Court of New South Wales, 25 March 1996 at 3 per Ireland J.

[108] [1906] HCA 42; (1906) 3 CLR 1125 at 1131.

[109] R v Pearce unreported, New South Wales Court of Criminal Appeal, 1 November 1996 at 9, citing Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 282.

[110] Per Ireland J cited in R v Pearce unreported, New South Wales Court of Criminal Appeal, 1 November 1996 at 10 per Newman J.

[111] R v Pearce unreported, New South Wales Court of Criminal Appeal, 1 November 1996 at 10-11 per Newman J.

[112] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

[113] R v Pearce unreported, New South Wales Court of Criminal Appeal, 1 November 1996 at 20 per Hunt CJ at CL.

[114] No one should be punished twice for the same offence.

[115] R v Gordon, ex parte Attorney-General [1975] Qd R 301 at 314.

[116] No one should be twice vexed if it be proved to the court that it is for one and the same cause.

[117] Green v United States [1804] USSC 11; 355 US 184 at 187-188 (1957).

[118] Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 67-68.

[119] See eg Cooke v Purcell (1988) 14 NSWLR 51 at 56-57; R v Tait (1979) 46 FLR 386 at 388-389.

[120] Cullen v The King [1949] SCR 658 at 668.

[121] International Covenant on Civil and Political Rights, Art 14.7 ["No one shall be liable to be tried or punished again ..."].[122]

Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-288; Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1426; 147 ALR 42 at 147-151. [123]

See eg Criminal Code (Q), ss 16, 17; Criminal Code (WA), s 17; Criminal Code (Tas), s 11.

At a glance

Court

Decision date

Before

Source

Judgment (287 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (42)

Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998)