b) the clear contradictions in the appellant's evidence as to whether he had believed that Mr. Beyroutieh lived at the premises, and as to who had driven the car away from the scene of the shooting.
32 These further submissions in relation to suggested weakness in the evidence of the appellant, assume that in a new trial, his evidence at the first trial could be placed before the jury, either because he would give the same evidence in chief or in cross examination if called, or that otherwise the transcript could be tendered by the Crown.
33 Upon my assessment of the evidence which may be assumed to be available, a properly instructed jury would have to entertain a reasonable doubt about common purpose murder. It is one thing to go to premises with a loaded firearm contemplating its possible use to shoot someone, and quite another thing to go to those premises contemplating its use to shoot the premises up. Upon the available evidence, the Crown case could not in my view rise above one of manslaughter by unlawful and dangerous act, based upon a common enterprise to call at the victim's premises to shoot them up, or to employ the language used by the Crown Prosecutor, in the cross examination of the appellant, "to put the wind up people inside the house". Moreover, it appears to me that even assuming the recorded conversation to have been in the terms most favourable to the appellant, the words spoken and the limited intervention offered would not constitute a withdrawal from the form of joint enterprise which is alleged in this latter respect. I am accordingly persuaded that there is a sufficiency of evidence to support that offence, so that a new trial should be ordered.
34 The question which was then debated upon appeal was whether a verdict of acquittal of murder should be entered and an order made directing a new trial for manslaughter alone; or whether there should simply be a quashing of the conviction and an order for a new trial generally.
35 Both the Crown and Counsel for the appellant questioned whether the court could direct a verdict of acquittal for murder and make an order for a new trial confined to the lesser offence of manslaughter. That a power to order a new trial on a lesser count exists, in appropriate cases, is suggested by the presence, in s8(1) of the Criminal Appeal Act, of the words "the Court may … order a new trial in such manner as it thinks fit".
36 Although Counsel were unable through their research to find any instance where this had occurred, there is in fact precedent for it in Kelly (1923) 32 CLR 509, a decision that has been followed in Miller (1951) ALR 749; Hanias (1976) 14 SASR 137 and Callaghan (1952) 87 CLR 115. Kelly was a case where the accused had been convicted at trial, on an indictment for murder, only of manslaughter; Miller is, however, more directly in point, since the jury had there convicted of murder, but on appeal that conviction was quashed. A new trial was directed for manslaughter alone. The Court did not in that case direct an acquittal for murder.
37 There is also support for the proposition that where, on an indictment for murder, there has been no general acquittal, and the record shows that, while the jury acquitted the prisoner of murder, they were discharged without giving a verdict on manslaughter, because of their inability to agree on such a verdict, the issue between the Crown and the accused of a felonious killing, falling short of murder, may properly be taken as not having been concluded; and on that basis does not give rise to a defence of autrefois acquit: Quinn (1952) 53 SR (NSW) 21. That a decision would suggest, however, that the contrary position would arise where there was a general acquittal.
38 Applying the reasoning in that case, it would follow that, if the verdict now entered in this Court was one of general acquittal, then it would also operate as a discharge upon the original indictment of the appellant on the charge of manslaughter. However, in circumstances where the original jury had not needed to consider the lesser offence of manslaughter and where the Court considered that offence to still be available, it would, in my view, be inappropriate for this Court to enter a verdict that operated as a general acquittal on the indictment.
39 The difficulty which arises in this regard is that, as a matter of law, a plea of not guilty to an indictment charging murder is a "plea of the general issue to every allegation of fact necessary to make the killing a felony" whether it be that of murder or manslaughter (per Owen J in Quinn at 24). As Herron J put it in Quinn at 27, "an indictment operates so as to charge the accused, not only with the major charge specified in it but with any lesser offence for which on such charge he becomes liable to conviction".
40 Earlier, at 25-26, his Honour noted that the plea of autrefois acquit:
"… is based on the doctrine of res judicata . It may best be re-stated by citing the oft-quoted passage from Lord Reading's judgment in R v Barron (1914) 2 KB 570 at 574:
'The principle on which this plea depends has often been stated. It is this, that the law does not permit a man to be twice in peril of being convicted of the same offence. If, therefore, he has been acquitted, ie found to be not guilty of the offence, by a court competent to try him, such acquittal is a bar to a second indictment for the same offence. This rule applies not only to the offence actually charged in the indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment. Thus an acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter, as the jury could have convicted of manslaughter".
For the plea to be well founded there must, on the former charge, have been a legal verdict returned. This means that a verdict of not guilty or guilty of the crime charged must have been found for or against the accused. It is sufficient to support the plea to show that a verdict of guilty has been returned by a jury which is subsequently set aside on appeal , eg on the ground of wrongful admission of evidence and where the Court of Appeal discharges the prisoner . If an accused person is again put on his trial under circumstances of that sort, it is quite clear that he could plead a plea to the jurisdiction of the Court to try him again: Reg v O'Keefe (1893) 15 NSWLR 1. Perhaps in such a case the plea of autrefois acquit may not be quite apt, but there is a res judicata . The principle is that a man is not to be prosecuted and stand in jeopardy twice for the same offence.
But there must be a legal verdict. If no legal verdict is returned at the first trial, the prisoner is not to be regarded as being in jeopardy, and he might be tried again. There must be a true judicata and not merely proof of the res ."
41 The common law position, noted in this decision, is confirmed in S 125 of the Criminal Procedure Act 1986 which provides:
"125. If under any Act a person who is tried for a serious indictable offence may be acquitted of the offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence."