(1977) 139 CLR 437
Mraz v The Queen(No 2) [1956] HCA 54
Source
Original judgment source is linked above.
Catchwords
(1977) 139 CLR 437
Mraz v The Queen(No 2) [1956] HCA 54
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: On 13 October 2011, the accused in the trial proposed to proceed before me, Mr Bernard Nash, was at Shelley Beach Golf Club on the Central Coast. Shortly after 6.30pm that evening, Mr Nash departed the Shelley Beach Golf Club in his motorcar in circumstances set out in the Crown case statement which has been tendered as exhibit B on the application before me.
A police officer followed Mr Nash's motor vehicle, the police officer being in a highway patrol car. The police were apparently in the vicinity of the Golf Club for the purpose of conducting random breath tests on persons who would drive after leaving those licensed premises.
In circumstances which were the subject of dispute in Local Court proceedings that I will refer to shortly, the vehicle driven by Mr Nash proceeded a comparatively short distance to his home which was close by. Mr Nash's vehicle entered the driveway of his home and the police car, which had by that stage activated its lights and siren, pulled up outside.
The precise circumstances of what then took place were the subject of dispute between the police officer and Mr Nash. It suffices to observe that the intention to administer a random breath test was, in accordance with the prevailing law in New South Wales, not able to be undertaken once Mr Nash had reached what my might be described as the safety of his home.
Authorities such as R v Vatmer [1992] 29 NSWLR 311, and the decision of Justice Sperling in DPP v Skewes [2002] NSWSC 1008, make that position clear. I have, in earlier proceedings, Wayne Andrew Reid v R (unreported 28 April 2017), made the observation that on one view, the circumstance of the so‑called "home safe rule" might be viewed as objectively unpalatable in that the morality of the situation would appear not to coincide with the requirements of the drink-driving laws. That having been said, the fact of the matter is that the present law in this situation is clear, and a random breath test is not able to be administered in circumstances where somebody is within the curtilage of their home.
The pursuing constable then alighted from his vehicle. There was some dispute in the proceedings before the Local Court magistrate as to whether or not he called out and precisely what he said and, more significantly, whether or not Mr Nash heard him. Mr Nash, it would appear, continued to walk to enter into his own home and in the circumstances that then unfolded, the police constable either tripped, and/or tackled, and/or grappled with Mr Nash, who ended up on the ground. Following the circumstance of Mr Nash's driver's licence being produced, apparently from the glove box of his vehicle, it was ascertained to the satisfaction of the police officer that the premises were indeed Mr Nash's own home.
Accordingly, the police officer, no doubt tutored in accordance with the requirements of the law, did not seek to administer a random breath test but ultimately court attendance notices would appear to have issued for two offences: firstly, resisting arrest and secondly, driving under the influence, contrary to the then provisions of the Motor Traffic statutory requirements.
The matters came before the Local Court Magistrate on 18 May 2012. The Magistrate in the Local Court at Wyong presided over a defended hearing in relation to both charges. An application following a voir dire that the evidence of the arrest be excluded pursuant to an exercise of discretion was rejected. The Magistrate formed the view, on the standard of proof required on the voir dire, that there was a basis for the police officer not to know at the time that it was the home of the alleged offender and, notwithstanding that the constable had formed an intention at that time to administer a random breath test, that the arrest was prima facie not unlawful.
The hearing proceeded and in the course of evidence it was clear that there were a number of specific issues between the parties. Quite apart from the factual scenario giving rise to the detention, physically, of Mr Nash, his appearance was described by the police officer in customary fashion regarding a subjective assessment of his demeanour and his appearance and the smell of alcohol. A description was given in evidence which was intended to buttress or support, or indeed to establish, the proposition that the defendant, namely, Mr Nash, had been driving whilst under the influence of alcohol. Ultimately, the Magistrate dismissed both charges.
It is not clear to me, on a perusal of the recorded reasons of the Magistrate, precisely the basis upon which the resisting arrest charge was dismissed. It may be that the Magistrate was not satisfied beyond reasonable doubt that the arrest was lawful. It may be that the circumstance of somebody being tackled to the ground, meant that they were entitled to resist. I am simply not able to understand precisely the legal basis upon which the charge was dismissed. These observations ought not to be interpreted as suggesting that the Magistrate was wrong in dismissing that charge but rather, simply, that I am uncertain as to the basis upon which she reached a conclusion that the criminal burden of proof was "found wanting", to use her words.
In relation to the charge of driving under the influence, the learned magistrate made a number of observations. She described the evidence given by Mr Nash, namely, that in the course of 1½ to 2 hours at the Golf Club, he had consumed only two, or at most three, schooners of light-strength beer. The magistrate appears to have referred to that evidence as evidence which she has prima facie accepted. She went on to describe that there was nothing in the manner of driving that led to a suggestion of driving under the influence and the fact that the police officer's description of the appearance and surrounding circumstances of Mr Nash (ie. the smell of alcohol etc), had not been included in his original statement, was a factor that she clearly took into account in deciding the weight that she would give to those observations. The magistrate said (at transcript p 66, line 47):
"So far then as the DUI is concerned, there is nothing before me to indicate what effect that amount of alcohol, whatever that alcohol that was,"(sic)"would have had upon his driving. There is no suggestion that his driving was erratic or all over the place, nor does there need to be, mind you, and I am entitled then, to go to the officer's observations. Well, I think I have dealt with them, particularly in relation to the physical observations coming late and also of course, being quite readily attributed to what had gone before which was what the defendant described as a confusing, and in his words, 'a surprise attack by an officer', and as Mr Pearce" (that is the legal representative of Mr Nash) "has contended, those physical observations may well have been attributable to that physical interaction as much or more so than any light alcohol that had been consumed."
Her Honour then went on to say:
"For all of those reasons, again whilst I have my suspicions in relation to the actions of the defendant towards the police officer, I could not be satisfied beyond a reasonable doubt that he was driving under the influence of that light beer so as to render him in breach of the legislation. So far as that matter is concerned a DUI really cannot be used as a default position if an RBT cannot be conducted. That is not how the law works, I am afraid, in relation to these matters".
Her Honour went on to say that for those reasons she could not find the offence proven beyond reasonable doubt.
I should again make the observation that it is not clear to me whether the learned magistrate was in effect finding that a drive under the influence charge could not lie in circumstances where an RBT test could not be conducted. It certainly appears to me to be part of the basis upon which she has reasoned to a determination that the charge was not established. I am not sure how else one can read the words that "a DUI really cannot be used as a default position if an RBT cannot be conducted", other than to conclude that the magistrate appears to have had a view, which may well be correct in law, that in circumstances of somebody being "home safe"; in circumstances where an arrest, which prima facie may well have been unlawful, takes place; and alleged observations by a police officer which are not accepted, would simply leave no evidence at all of an offence of driving under the influence.
Whether or not a DUI charge can be laid in such circumstances, where a breath test could not be required, is a matter about which I frankly am not certain, it not having been argued before me.
The driving under the influence charge was laid pursuant to s 12 of the Road Transport (Safety and Traffic Management) Act 1999. That statutory provision followed from previous similar offences that had historically been in s 5(2) of the Traffic Act for many, many decades.
There are numerous cases dealing with proof of the elements of driving under the influence. It suffices to note what was said in R v Whitby (1957) 74 WN (NSW) 441 at 443-4. The Court of Criminal Appeal, all those many years ago, (Street CJ ; Roper and Owen JJ) dealt with the question of whether or not a lay opinion regarding the apparent state of sobriety of a person was opinion evidence which could be received on the question of whether somebody was driving under the influence. I note that Mr Knight QC, as his Honour then was, appeared for the Crown and Mr Peter Clyne of counsel appeared for the appellant.
The Court spoke of the types of observations which were customarily relied upon in relation to substantiating a charge of driving under the influence. The Court ultimately came to the view, for the reasons set out in detail in that judgment, that such an opinion, even from a lay person, was admissible and relevant on the question of whether a man was drunk or sober, notwithstanding that it was, at the end of the day, a medical question. The Court found that notwithstanding that there were aspects of such an opinion which might involve an analysis on the basis of medical science, in many matters involving health and bodily soundness, upon which the ordinary experience of everyday life was entirely sufficient, a lay person was able to give evidence of their observations of the apparent level of influence of intoxicating liquor on a person who was driving.
Their Honours made reference to a Canadian authority on the point and ultimately came to the view that observations as to the manner of driving, as to demeanour and as to the apparent influence of alcohol could be given by a lay witness. Observations of that kind were traditionally and customarily given on driving under the influence offences, and the decision on such a point was found by the Court to be a good law and sound common sense.
I should note that I also had reference to a decision of Yeldham J in Bell v Wood (1989) 15 NSWLR 708.
Following the proceedings before the Local Court and the dismissal of those charges Mr Nash brought civil proceedings against the State of New South Wales alleging that he had been wrongfully arrested and detained. I am advised that those civil proceedings ultimately took place in the District Court of New South Wales where Mr Nash is said to have given similar evidence to that which he gave before the learned magistrate, namely that during the time that he was at the golf Club he had consumed no more than three schooners of light beer. The proceedings brought by him in the civil jurisdiction succeeded and he was awarded a substantial sum in damages.
At some stage in the civil proceedings it would appear that there was produced to the Court, pursuant to a subpoena directed to the Shelley Beach Golf Club, what is said to have been an extract of CCTV footage which revealed actions of the accused during his time at the club. Of significance to the proceedings before me it is alleged by the Crown that what was produced as the CCTV footage had been edited or altered in such a fashion as to indicate that there were but three occasions on which beer had been obtained by Mr Nash rather than, as has apparently subsequently been ascertained, the fact that there were actually seven beers obtained by Mr Nash. I am advised that the employee of the Club who produced the edited video, a Mr Ellis, has subsequently been prosecuted and jailed for matters to do with his involvement in the creation and production of that deliberately misleading footage.
Underpinning the allegations brought before this Court against Mr Nash is the contention that in giving evidence before the Local Court, and also in giving evidence in the District Court that he had consumed no more than three schooners of light beer during the time he was at the club, that Mr Nash did not tell the truth and that he did so, that is that he lied, intentionally. It is said that he thereby perjured himself when he gave evidence on oath on both of those occasions.
Other charges brought against him before this Court relate to the surrounding circumstances in relation to the obtaining of the edited or altered CCTV footage. There are two offences that derive, as I understand it, from the production of the edited CCTV footage. Apparently two differently edited versions were produced, one to the police prior to the Local Court hearing, thus giving rise to count 2 in the indictment, namely, that Mr Nash tampered with evidence (presumably by arrangement with the Club employee), and count 4, namely, that he was involved in the production or provision of misleading evidence, intending to pervert the course of justice in the course of the civil proceedings.
Against that broad background, Mr Strickland of senior counsel who appears for Mr Nash has moved the Court pursuant to a notice of motion that was filed in Court yesterday that there should be a stay of the proceedings, specifically the proceedings in relation to count 1, that is, the allegation that Mr Nash perjured himself in the criminal proceedings in the Local Court before the magistrate back in 2012. The essence of the application seeks to rely upon the principle of the incontrovertibility of a verdict of acquittal. The application is put on two bases: firstly and put simply, that the incontrovertibility of the verdict of acquittal on the charge of driving under the influence means that the dismissal of that charge cannot be impugned or controverted or indeed evidence that might tend to controvert it cannot be led or relied upon, and that bringing the charge of perjury has that effect.
The second basis upon which the stay is sought is that the findings, either expressly or implicitly, in the reasons of the Local Court magistrate on 18 May 2012 are said to be inextricably linked to the acquittal and that, in accordance with the observations of the High Court, specifically in Rogers v R [1994] HCA 42; (1994) 181 CLR 251, it would be an abuse of process to allow the charge to proceed in light of those determinations. The application has been supported by Mr Strickland in both written submissions and extensive oral submissions which were made yesterday.
The basis of the application, as I understand it, rests upon observations that initially came in the High Court of Australia in a decision of then Chief Justice, Sir Garfield Barwick, in Garrett v R [1977] HCA 67; (1977) 139 CLR 437.
Garrett had been charged with a rape of his erstwhile partner and he had stood trial following that allegation which claimed that he had raped her in November 1975. The prosecutrix, as she was referred to, gave evidence in the course of that trial that she had been raped but notwithstanding that evidence in due course Mr Garrett was acquitted. He was subsequently charged with a later rape, again upon the complaint of the same complainant.
The second rape was alleged to have occurred in the early days of July 1976 in circumstances where Mr Garrett had gone to the home where his former partner was living, had physically assaulted a number of persons at that place, and had then absconded with her in a motor vehicle, together with their infant child. He had then allegedly raped her in the back of the motor vehicle. This second allegation, that is an allegation in July 1976, turned on the issue of whether or not there had been consent to the intercourse which Garrett admitted had occurred on that occasion.
The Crown, "not unsurprisingly" as the Chief Justice observed, sought to lead evidence of the allegation of rape from November 1975 on the specific issue of whether or not it was likely that the complainant, or as she was referred to the prosecutrix, had given consent to her physically abusive partner some eight months or so after the earlier alleged rape.
As Barwick CJ observed (444 at [16]) : "However, that purpose could have been served by establishing that the prosecutrix had in fact informed against the applicant and had given evidence for the Crown at his former trial and had done so willingly. But the Crown Prosecutor was apparently not content to confine her evidence to that extent (and I am not unmindful of his reason for this attitude) with the consequence that evidence was given of a former rape and, secondly that the guilt of the accused of that rape was asserted notwithstanding his acquittal upon a trial therefor."
It seems to me that his Honour was implicitly indicating that if the evidence had been carefully tailored it may well have been able to have been led on the issue that the Crown sought to rely upon. However his Honour went on to say:
"[17] In my opinion, evidence of an earlier rape, quite apart from the fact of the earlier trial and acquittal, was not admissible. Its admission could not be justified, in my opinion, as a part of a narrative designed to establish the rupture of the parties' earlier intimate relationship, though evidence that the prosecutrix had informed and given evidence against the applicant would itself have been admissible."
Barwick CJ went on (at 445) to state the relevant principle which was being called in support of a proposition that the evidence should not, in the form in which it was led, have been led, and his Honour said:
"[20]…in my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself.
[21] The relevant principle is that the acquittal may not be questioned or called in question, by any evidence which, if accepted, would overturn or tend to overturn the verdict".
Stephen, Mason and Jacobs JJ all concurred with the Chief Justice. Murphy J in reaching a similar conclusion went on, however, to indicate that there were some aspects of the earlier evidence that might have been able to be admitted with the trial judge having a discretion to limit the evidence in the earlier trial to avoid it overshadowing other evidence in the subsequent trial.
That statement of principle was applied with full force and vigour by the High Court subsequently in a number of cases. In 1994 the High Court in Rogers v R, variously reported in 181 CLR 251 and 123 ALR 417, in determining a question regarding the tender of a record of interview which had been the subject of a previous trial in which the circumstances giving rise to it and other records of interview by the same accused were found to have been involuntary, the High Court found that the earlier decision by the first trial judge, albeit on a voir dire, had "crystallised to finality" following the verdicts which followed that finding, and accordingly the Crown was not entitled to re‑tender and seek a different ruling from a different judge in a subsequent trial.
The High Court reviewed various questions which were still, if I may use this terminology, "floating around" for precise determination touching upon issues of double jeopardy, issues about the question of whether issue estoppel had any application to the criminal law, and circumstances in which what might be perceived as an abuse of process could be controlled by a trial court.
Rogers v R ultimately put to rest the question of whether issue estoppel had any application in the criminal law, that having been a question pursuant to R v Storey [1978] HCA (1978) 140 CLR 364 and Mraz v The Queen(No 2) [1956] HCA 54; (1956) 96 CLR 62, and a similar line of authority, which had previously been left somewhat up in the air by the High Court.
The House of Lords had in the meantime made it quite clear that in England issue estoppel would play no part in the determination of similar issues of abuse of process and trial procedure. In R v Humphrys [1977] AC 1 the House of Lords had made it clear that in their view the use of a the phrase "issue estoppel" in the criminal context, as Sir Owen Dixon had referred to it on a number of occasions, was in their opinion a form of "intellectual shorthand" rather than a full application of a transference of the principle of issue estoppel from civil to criminal jurisdictions.
Humphrys was a case in which a prosecution for driving whilst disqualified on a specific date in July 1972 had led to a finding of not guilty in the initial trial. In the course of the trial Mr Humphrys had given evidence that he had not driven any motor vehicle at all during 1972. That proposition, of course, embraced the date on which he was charged with driving whilst disqualified, namely 18 July 1972 but was far broader than a simple specific denial of not driving on the charged day. Ultimately, the House of Lords came to the view that a subsequent prosecution for perjury based upon an allegation that Mr Humphrey's had given false evidence at the first trial when he swore that he had not driven at all in 1972 could proceed, notwithstanding the flow-on conclusion that one might obviously reach in the event of him being convicted beyond reasonable doubt that his evidence at the first trial was false in general but also having the effect that his evidence of not driving on 18 July 1972 could, of course, not be correct.
Indeed, the House of Lords went to great lengths and careful consideration in reaching its determination and reviewed many of the authorities such as Sambasivam v. Public Prosecutor Federation of Malaya [1950] AC 458, Reg. v. Ollis [1900] 2 Q.B. 758, and R v Wilkes [1948] HCA 22; (1948) 77 CLR 511.
Lord Hailsham of Marylebone, in Humphrys (at 41) said this:
"Where the second charge consists of an allegation that the accused in the first charge has committed perjury in his evidence given on his own behalf in his defence on the former charge the mere fact that some of the evidence brought in support of the charge of perjury is identical with evidence given in the first charge and inconsistent with innocence on that charge does not preclude the Crown from adducing that evidence or asserting its truth where it is accompanied by other evidence in support of the charge of perjury."
It is significant in my view that the High Court of Australia has on a number of occasions reviewed and referred to R v Humphrys but has not at any stage sought to disapprove of it or reach a contrary conclusion regarding the principles expressed.
In 2002 the High Court was confronted with the circumstances derived from the unfortunate death of a young child, Deidre Kennedy. Raymond John Carroll had been prosecuted and stood trial for the murder of the child in 1985. The case brought against him by the Crown rested upon a number of factors all of which the Crown said pointed to him being the murderer of the child The three categories of evidence that were relied upon at the trial were, firstly, evidence that Mr Carroll was not, as he had claimed in the course of the trial, at the Royal Australian Air Force recruits' course in South Australia at the time of the killing. Secondly, forensic odontology evidence, that is evidence I presume of teeth marks, that the bruise marks on the deceased child's thigh had been caused by Mr Carroll and, thirdly, on similar fact evidence.
In the course of the trial in 1985 Mr Carroll gave evidence during which he was asked a direct question: "Did you kill Deidre Kennedy?" to which he replied: "I did not". The jury did not accept that evidence and convicted him. However, the Queensland Supreme Court upheld his appeal and entered a verdict of acquittal. That Not Guilty finding stood unimpugned for something in the order of more than 14 years.
Slightly more than 14 years later the prosecution sought to re-agitate the question of whether or not Mr Carroll had indeed murdered Deidre Kennedy. There was some fresh evidence apparently, the detail of which is not referred to by the High Court and a charge was brought against Mr Carroll of perjury resting specifically and precisely on his denial at the original trial that he had killed the child.
This later prosecution for perjury succeeded at first instance. An application had been made to stay the trial upon the basis of submissions about issue estoppel and res judicata and questions of double jeopardy. There had been no formal application to stay the trial on the basis of the exercise of some form of discretion to prevent an abuse of process.
The appeal court in Queensland quashed the conviction. They did so on two bases. Firstly, that the trial should have been stayed and, secondly, that in any event the evidence was unsatisfactory to support the verdict of the jury for perjury.
The Crown sought special leave to appeal to the High Court from the determination of the Queensland appellate court on both bases: firstly that the additional evidence was such that it was not unsafe and unsatisfactory for a conviction to have been maintained or to have been found and, secondly, that in any event it was wrong that there should have been a stay granted for a number of reasons some of which rested upon the precise terms of the Criminal Code in Queensland.
Special leave was granted and the matter proceeded on appeal on the limited basis of the consideration of the question of whether a stay should have been granted. The High Court ultimately came to the view, in a number of separate judgments, that a stay ought to have been granted. The finding was, in short, on the basis that the principle of the incontrovertible nature of a verdict of acquittal prevailed and that in such circumstances the perjury trial ought to have been stayed.
A detailed analysis of the judgments reveals slightly different approaches and slightly different applications of the principle which was at stake. The Chief Justice, Gleeson CJ and Hayne J, in a joint judgment reviewed the historical basis of the concept of autrefois acquit. They looked at principles of res judicata and they examined the question of whether or not it was a preclusionary approach to the admission of evidence that would lead to the second trial not being fair. Ultimately their Honours examined (at [19]) the question of what was it that constituted the alleged abuse of process. Their Honours noted that the effect of trying Carroll for the alleged perjury meant that the very issue which was central to the trial would necessarily controvert the verdict of acquittal entered after original trial and appeal.
That conclusion is, in my respectful view, absolutely without argument or even room for debate on the facts regarding Raymond Carroll. The summing-up which was given in the trial of Mr Carroll for perjury clearly indicated that if the jury had a doubt as to whether he had killed the child they would be obliged to return a verdict of not guilty. In other words, the proposition that he had killed the child was fundamental to the subsequent trial. Such a situation was ultimately, it would appear, acknowledged by the Crown prosecutor in the Queensland Court of Appeal and at [26] in their joint judgment Gleeson CJ and Hayne J said:
"In the course of argument in the Court of Appeal the prosecutor expressly acknowledged that the perjury case was conducted in practical effect as a retrial for murder."
The question of whether there was an abuse of process led their Honours to look at Humphrys to which I have earlier referred and their Honours noted that the House of Lords had considered that in an appropriate case when a prosecution for perjury was merely a second attempt to secure a conviction on a criminal charge, the Court has a discretion to stay proceedings in the exercise of its inherent jurisdiction and that it was such a jurisdiction that was invoked in the case before them.
Gleeson CJ and Hayne J then went on to a detailed analysis of the incontrovertibility of a verdict of acquittal. It is to be noted that in referring to the statement of principle by Barwick CJ in Garrett where his Honour had said "would overturn or tend to overturn the verdict" their Honours noted that and indeed added emphasis to that particular phrase as well as "an acquittal may not be questioned or called in question". Each of the phrases "called in question" or "tend to overturn" were emphasised in their Honours' joint judgment.
Their Honours also made reference to what Lord Pearce had to say in Connolly v The Director of Public Prosecutions [1964] AC 1254 at 1364 where it was said that a man ought not to be tried for a second offence which is "manifestly inconsistent" on the facts with either a previous conviction or a previous acquittal. Their Honours went on to describe the case before them of Mr Carroll as providing such an example where, in their Honours' words at [41] the only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deirdre Kennedy.
The perjury alleged at the second trial consisted of the respondent having falsely denyied on oath that he killed Deirdre Kennedy. It was necessarily implied in the perjury indictment that the respondent had in fact killed the child.
Their Honours concluded in the circumstances of Carroll that there was manifest inconsistency between the charge of perjury and the acquittal for murder. That inconsistency arose because the prosecution had based the perjury charge solely (my emphasis) upon the respondent's sworn denial of guilt. They went on to conclude that once such manifest inconsistency appeared then the case for a stay of proceedings was irresistible.
Their Honours went on to a further examination of some of the reasoning in Humphrys and considered the question of whether the strength and cogency of new evidence was crucial or even important in the exercise of a discretion to stay proceedings. Their Honours were ultimately of a view that it did not require an examination of the strength of new evidence at all. They said at [44]:
"The laying of the charge of perjury solely on the basis of the respondent's sworn denial of guilt for the evident purpose of establishing his guilt of murder was an abuse of process regardless of the cogency and weight of the further evidence said to be available".
Of some significance in their Honours' analysis of the relevant principle, they went on to observe that there appeared to be much to be said for the view that it is necessary to direct attention to the elements of the offence with which the person was acquitted and the elements of the offence with which the person is later charged.
At [50] Gleeson CJ and Hayne J made this observation:
"Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct……In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial."
Their Honours concluded however that the prosecution of Mr Carroll for the perjury charge inevitably sought to controvert the earlier acquittal on the charge of murder.
The second joint judgment was delivered by Gaudron and Gummow JJ. Their Honours posed the question of whether or not a later charge of perjury might be maintained in respect of the giving of false evidence which secured that acquittal (referring to a statement by Mason J in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 206). In Carroll the only element of the offence in question in both the murder trial and in the subsequent perjury trial was whether the accused had killed the deceased. It was clear to their Honours, as it was, of course, to the Chief Justice and to Hayne J, that there was an entire coincidence of that element.
Their Honours at [58] set out the three categories of evidence to which I have already referred above, namely the false alibi, the dental evidence, and similar fact evidence. Their Honours went on to examine the various competing principles, many of which fell under the broad generalisation of "double jeopardy". They discussed the principle that determinations and decisions of Courts, unless set aside or quashed, were required to be treated as incontrovertibly correct.
I do note, of course, that the references in all of the judgments to Rogers v R make it quite clear that it was the verdict that ultimately followed from the decision of the first trial judge, the late Phelan DCJ to refuse the admission of those records of interview, which had the effect of "crystallising" the orders. It was the crystallisation of those orders as final flowing from the verdicts of acquittal that led to the application of the double jeopardy principle. A careful perusal of the judgments in Rogers itself leaves open questions about fraud and fresh evidence. Be that as it may certainly seems to now be superseded by the observations of Gleeson CJ and Hayne J in Carroll.
Returning to the decision of Gaudron and Gummow JJ they said, in relation to Rogers v R that it was clear that the doctrine of issue estoppel as it had developed in civil proceedings was not applicable to criminal proceedings. Their Honours referred to the finding in Rogers that the tender of the evidence of the admissions in the prior trial which had been held to not have been made voluntarily could not be challenged once that prior judicial determination had become final "once verdicts were returned".
The joint judgment then referred to Garrett v R and the arguments before their Honours in Mr Carroll's matter where it was said the evidence that was said to be inadmissible because "it inevitably challenged the verdict of acquittal".
Their Honours then examined the text of the Indictment which had been presented and they said at [101]: "The text of the present indictment itself disclosed that what was here sought to be impugned or controverted was the prior acquittal for murder. ....the testimony sought to be impugned by the subsequent indictment for perjury went to the ultimate and live issue in the murder trial. It was a re-affirmation on oath by the respondent of his plea of not guilty to murder. Proof of the falsity of that re-affirmation was a necessary ingredient of the perjury charge."
Their Honours went on to make the point emphatically by referring to the terms of the direction by Muir J at the conclusion the perjury trial where his Honour as the presiding trial judge told the jury:
"The only real issue is whether he told a lie when in that trial he said he did not kill Deidre Kennedy. If he did kill Deidre Kennedy, you may think it plain that that was something well-known to him. If you conclude that it is not established beyond reasonable doubt that he did kill Deidre Kennedy, it follows that it has not been proved beyond reasonable doubt that the accused gave false testimony and the verdict must be not guilty."
Gaudron and Gummow JJ then went on to say at [103]:
"This indictment is to be contrasted with a charge of perjury that relates not to an ultimate issue in contest in a previous trial, but to evidence given at such a trial by the defendant which, if subsequently proved to be false, would not directly impeach the prior acquittal. An indictment which charged, for instance, that the present respondent had committed perjury by testifying that he had been at the Royal Australian Air Force recruits' course at the time of the murder would answer that description. It might support an inference that he was wrongly acquitted, but would not necessarily negative the acquittal."
Their Honours then went on to look at other cases that supported the proposition that properly confined perjury cases could run with respect to evidence given in an earlier trial which had resulted in an acquittal. They referred specifically to R v McDermott [1899] 24 VLR at 636 where evidence regarding an alibi that had been given in a trial that resulted in an acquittal was subsequently prosecuted for perjury. The Full Court in Victoria had emphasised that the ground of the jury's verdict in the earlier trial was not necessarily that the alibi evidence was true and accordingly the subsequent perjury trial stood.
Gaudron and Gummow JJ then referred to R v Humphrys and said at [105]:
"In England, the decision in R v Humphrys may be nearer the line. In that case, the alleged perjury was the evidence by the accused at an earlier trial on a charge of driving a motor vehicle on 18 July 1972, while disqualified, that he had not driven any motor vehicle during 1972. Proof of the falsity of that general denial did not directly controvert the earlier acquittal on the specific charge of driving while disqualified on a particular day in that year. The House of Lords held that the trial judge had correctly admitted police evidence that the accused was driving a vehicle on 18 July 1972. This was so, even though that evidence, if accepted, would lead to the inference that the accused was guilty of the offence of which he had been acquitted."
Gaudron and Gummow JJ next examined Chitwood v United States (178 F 442(1910)) and I do not take the time to deal with that United States determination.
Ultimately their Honours were of the view that there was no error attending the decision of the Court of Appeal that the trial judge had erred in declining to stay the prosecution of Mr Carroll for perjury.
I should note with unfeigned respect that McHugh J, whilst agreeing with the determination of the appeal, would have done so on far wider grounds. Indeed the observations of McHugh J lend force to Mr Strickland's submissions as picking up the precise words uttered by Sir Garfield Barwick about tending to controvert. His was a wider application of the principle in my view than that as found in Carroll by the majority, namely Gleeson CJ, Hayne, Gaudron and Gummow JJ, who specifically in my view, in not disagreeing with the determinations in cases such as Humphrys, were concerned to focus on where the previous acquittal was directly impugned rather than the broader concept of tending to undermine or tending to controvert.
The Crown in its oral and written submissions before me, in short, seeks to focus on the distinction between what is required to be established as an element of the offence of driving under the influence and the elements of the offence which is alleged in relation to perjury.
In R v Whitby and similar cases to do with driving under the influence, it is quite clear that convictions for driving under the influence are not determined by the quantity of alcohol ingested, they are determined on whether or not a person is under the influence.
Indeed, and I speak now of past professional experience in another part of the courtroom, prosecutions for driving under the influence have been maintained and sustained in this State notwithstanding the proposition that persons might in fact be driving under the legal limit for prescribed concentration of alcohol. That is so because as a matter of fact, in principle, some persons can be influenced by alcohol more extremely than the statutory limit which applies to everybody in the community irrespective of the level of influence that .05 may or may not have upon them.
Ultimately the question is: what were the elements of the offence of driving under the influence? They were not in my view to be determined simply on a question of whether it was two beers or three beers or whether it was four beers. The Crown seeks in the subsequent prosecution to establish that the evidence on that collateral, albeit corroborative, piece of evidence given by the accused in the proceedings before the magistrate was false.
Similarly to the determination in Humphrys that would in my view not directly impugn the finding by the magistrate which, as I have already alluded to, was determined on a basis that is not clearly articulated. In all of those circumstances I am of theev view that the attempt by the Crown to lead evidence of the fact that the evidence was false as to the number of beers consumed and perchance as to the type of beers consumed is not an abuse of process and in those circumstances I decline to stay the indictment.
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Decision last updated: 21 March 2019