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[1978] HCA 39
High Court of Australia
1978-10-12
Original judgment source is linked above.
THE QUEEN v. STOREY [1978] HCA 39; (1978) 140 CLR 364
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5), Murphy(6) and Aickin(7) JJ.
Criminal Law - Issue estoppel - Distinguished from autrefois acquit and res judicata - Application to criminal proceedings - Trial for rape after acquittal of forcible abduction - Whether evidence tending to show guilt of abduction admissible - Direction to jury - Crimes Act 1958 (Vict.) ss. 62, 568 (1).
Melbourne, 1978, February 22; October 12. 12:10:1978
BARWICK C.J. The Court granted to the Crown in these proceedings special whether the doctrine of issue estoppel is applicable in criminal proceedings; and (b) what are the limitations on its use in such proceedings. Consequently, the grounds of appeal assert error on the part of the Court of Criminal Appeal of Victoria in applying the doctrine of issue estoppel in the appeal of the respondents against their conviction for rape: and in holding that evidence relevant to the charge in the present proceedings was inadmissible because of the acquittal of the respondents on a former occasion of the offence of abduction of the prosecutrix. The evidence being relevant to that charge had been admitted before the jury which had acquitted the accused. (at p368)
2. The evidence so held to be inadmissible, the history of the proceedings and the relevant parts of the summing up may be found in the reasons for judgment of other Justices. I need only recite what, to my mind, are the facts essential to what I wish to say in dealing with the appeal. (at p368)
3. The elements of the offence of abduction were (a) the forcible taking away of a woman against her will and (b) a contemporaneous intent that she be carnally known. (at p369)
4. The evidence which was given in support of the indictment for abduction and which was repeated in the present proceedings for rape was in itself enough, if accepted, to establish that the prosecutrix was taken away from the waiting shed at the railway station against her will. Whether without the evidence of the subsequent rape it would have established a then present intention that the prosecutrix be carnally known by someone, not necessarily the accused, is to my mind a question. (at p369)
5. The sole defence to the charges of rape was consent on the part of the prosecutrix. Thus, the evidence of the circumstances in which the prosecutrix came into the company of the accused was clearly relevant. That the prosecutrix went with the accused unwillingly when first they met was not only relevant but of considerable moment to the Crown in seeking a conviction. I have carefully considered whether the evidence of the event in the waiting shed at Clifton Hill railway station was capable of limitation to some part account of the circumstances which did not assert that the prosecutrix went unwillingly under threat by the accused. I have come to the conclusion that the evidence does not lend itself to such treatment. (at p369)
6. In this connexion, the majority of the Court of Criminal Appeal said:
"In this case, because most of the prosecutrix's evidence about events on the railway station tended to show both that the applicants took her by force against her will and that they took her with intent that she be carnally known, her evidence on these events should have been stringently limited. It was open to her to give evidence that she met the men on the station and that Storey told her that he had a gun and showed it to her. It could have been explained to the jury that the applicants had been acquitted of the charge of abduction and that this was conclusive of their innocence of that charge. Then the detailed evidence could have commenced with the first taxi journey. Such a course might have made convictions less likely, but, if so, it would simply have been because the prisoners had been acquitted of the abduction. They were entitled to the full benefit of that acquittal."
I am unable to accept such a course as doing justice to the prosecution's case in light of the defence of consent. I find the proposal quite inadequate and, indeed, as stripping the event at the waiting shed of all its significance on the issue of consent. The case is, in this respect, unlike Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 in which I was of opinion that it would have been possible to confine the evidence relating to the earlier charge. As that would have been possible, the tendency of the whole of the evidence given in that case by the prosecutrix as to the circumstances of the earlier intercourse by the accused was to challenge the earlier acquittal, and, indeed, directly to assert the accused's guilt of the former charge. (at p370)
7. The case, to my mind, is therefore one in which the whole account of the meeting at the railway station should either have been excluded by reason of the earlier acquittal or have been admitted. If admissible, the remaining question, as will appear from what follows, is whether its admission along with the terms of the summing up deprived the respondents to any extent of the benefit of their acquittal on the charge of abduction. (at p370)
8. The decision of the Court of Criminal Appeal was that the verdict of acquittal of the charge of abduction involved a finding that the respondents had not forcibly removed the prosecutrix from the Clifton Hill railway station and that the Crown was estopped by that finding from asserting that the respondents did so remove the prosecutrix and from tendering evidence of the circumstances in which she met and "went" with the respondents at and from that railway station. (at p370)
9. This decision involves two questions: first, was there such a finding and, second, even if there were, was the evidence of the event in that railway station therefore inadmissible, though relevant in the trial of the respondents for rape. (at p370)
10. It was said by counsel for the respondents with the concurrence of counsel for the applicant - and accepted by the Court of Criminal Appeal - that the only "issue" fought and placed before the jury in the trial of the respondents for abduction of the prosecutrix was whether the prosecutrix was forcibly taken or went voluntarily with the accused from the Clifton Hill railway station. But even such a mutual concession by counsel does not furnish a basis for a conclusion as to what the jury have found by the verdict of acquittal. They were not bound by counsel's conduct of the case. They were bound, under the judge's proper direction, to consider all the necessary elements of the offence in order to decide whether or not they were satisfied to the requisite extent that those elements had been made out. (at p370)
11. Where an accused may and does make a formal admission of an element or elements of an offence, it may be possible to narrow the area of the jury's determination to a single issue of fact, i.e. to the question whether the jury were satisfied to the requisite degree of that fact. But even insuch a case, though we do not have a verdict of "not proven", the verdict of acquittal is not necessarily explicable only on the footing that the jury have made a positive finding of fact: they may just have not been satisfied to the requisite degree. The jury in a criminal trial, unlike a judge or jury in a civil trial, is not required positively to find facts, except for the purposes of a verdict of guilty. Thus, all that can certainly be said of a verdict of acquittal is that the accused was acquitted. The implications of a verdict of guilty may be quite different. (at p371)
12. In my opinion, it cannot properly be said in this case that the jury made any finding of a fact in issue in the abduction trial. That this should be so, as in my opinion it is, makes it impossible, in my opinion, in any case, to maintain that any issue estoppel arises out of a verdict of acquittal. (at p371)
13. But, as appears, I am of opinion that the technical and often involved principle described as issue estoppel has no place in the administration of the criminal law. The Court of Criminal Appeal were quite properly content to follow the decisions of this Court by which that court is bound rather than those of the House of Lords by which that court is not bound. But the Crown in this appeal challenges the validity of those decisions of this Court and expressions of opinion of some of its Justices as to the use of issue estoppel in criminal proceedings. (at p371)
14. I think it is important to observe that the question has relation only to the case of an acquittal. Questions as to the effect of a conviction on a plea of guilty in relation to an act or acts which could amount to different though cognate offences, such as, for example, were described in R. v. Thomas (1950) 1 KB 26 and in the Canadian cases of Kienapple v. The Queen (1974) 44 DLR (3d) 351 and Reg. v. Loyer (1978) 85 DLR 101 do not arise. (at p371)
15. The question whether the civil doctrine has a place in the criminal law has been under consideration, both in Australia and in England. The decided cases and the writings of academic lawyers have been fully canvassed, particularly in the speeches of the several Law Lords who participated in the decision of Director of Public Prosecutions v. Humphrys (1977) AC 1 . The principal Australian decisions are there canvassed. There is therefore no need for me to discuss any of the decisions or the articles in contemporary journals to which their Lordships made reference in order to explain my conclusions. Suffice it to say that, having refreshed my recollection of the earlier cases and having read the writings in the journals, I find that the reasons given by Lord Dilhorne in Humphrys' Case (1977) AC, at pp 15-21 for concluding that resort to the principles of issue estoppel ought not to be had in the trial of criminal offences quite convincing. In my respectful opinion, both the reasons and the conclusion are correct. For my own part, I find the principles of issue estoppel as utilized in civil proceedings wholly inappropriate to criminal proceedings and, as well, more likely if used to complicate criminal trials than to make any contribution to the administration of criminal justice. (at p372)
16. The matter is not, in my opinion, simply a question of nomenclature: merely the description of an admissible principle by an inappropriate name. It is a case of introducing into the criminal law an inadmissible principle. (at p372)
17. The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal. (at p372)
18. I find no need myself to subsume that principle under the principle that matters decided having passed into judgment must be accepted as true in the sense of the judgment, i.e., as it is said, they form res judicata. It is, of course, a res judicatum that the accused was acquitted: found not guilty of the offence charged. But, as I think, no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum. (at p372)
19. But the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvass the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles. In my opinion, the remarks of Lord MacDermott in Sambasivam v. Public Prosecutor Federation of Malaya (1950) AC 458 , sufficiently established the basic principle though, as I have indicated, I would take the reference to res judicata to be confined to the fact of acquittal and not to extend to any fact supposedly found or denied in arriving at that verdict. (at p373)
20. On the other hand, the basis of the principle of issue estoppel as in civil proceedings is that there is a public interest in finality in litigation, a basis fundamentally different from that upon which the principle which I have mentioned is grounded. (at p373)
21. The House of Lords in Humphrys' Case had its task complicated by the circumstance that the subsequent charge was one of perjury said to have been committed in the earlier trial. Consequently, it is tempting to treat their Lordships' conclusion as to issue estoppel as particular to that charge. But it would, in my opinion, be erroneous to do so. Further, their Lordships' reasons were complicated by the suggestion that a court could refuse to hear, or to allow to proceed, any prosecution of which, though otherwise regular, it disapproved. But, again, that circumstance (if, indeed, a court has that capacity) does not detract from the universal validity of their Lordships' unanimous decision that issue estoppel has no place in the administration of the criminal law. I am content to adopt as my own the reasons given by Lord Dilhorne for that conclusion. (at p373)
22. Whilst seeing no need to canvass in these reasons all the decisions which bear on the question of the propriety of using issue estoppel in criminal trials, it might be appropriate to say something of the several Australian cases in which issue estoppel has been suggested or supposedly employed in criminal proceedings. The chain begins with R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 . There Sir Owen Dixon, by way of obiter dicta, thought that if the record of itself or as explained by proper evidence showed that "the same point" as was "brought in issue" in a second trial had been determined in an earlier trial, resort might be had to issue estoppel. This conclusion was placed on observations in the judgment of Wright J. in Reg. v. Ollis (1900) 2 QB 758 . (at p373)
23. It may be that upon the hypothesis on which his Honour made his remark, evidence offered at a later trial, which of itself had relevance only as a challenge to a prior verdict, as, for example, in G. (An Infant) v. Coltart (1967) 1 QB 432 , could not be admitted. The assignment of this result to issue estoppel was not, in my respectful opinion, correct. In any case, Sir Owen Dixon's expressed conclusion cannot, in my opinion, properly be derived from anything said or any explanation of the facts or reasoning in Reg. v. Ollis. The evidence in question in that case had relevance to matters in issue in the second trial and could not be said to be tendered simply to challenge the earlier verdict of acquittal. (at p374)
24. The next case was Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 . Again, the evidence tendered in the second proceedings was clearly a challenge to the earlier acquittal. The evidence was tendered as evidence of similar facts, facts which were only similar if the accused had been guilty of the earlier offence. The result of the case could have been arrived at by the principle I have sought to enunciate without resort to the doctrine of issue estoppel. In Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 , by a subtle analysis of the verdict of acquittal the Court found that it necessarily involved a positive finding that rape had not been committed by the accused. If that conclusion were justified - and it is no present purpose of mine to discuss the process by which it was derived - it might then be said that evidence to establish rape could not subsequently be led because upon the Court's analysis of the verdict, the evidence would in the circumstances of that case challenge directly the verdict of acquittal. But, in my opinion, the doctrine of issue estoppel would not be involved in reaching that conclusion. For my part, I would not support the conclusion in that case for the reasons thus assigned. (at p374)
25. I conclude therefore that issue estoppel was not involved in this case. In any case, the majority of the Court of Criminal Appeal were, in my opinion, in error in acting on the footing that the acquittal could only be explained on the footing that the jury had found that the prosecutrix had not been forcibly taken away by the accused. (at p374)
26. The treatment of the matter by the majority highlights the difficulty of attempting to apply in criminal proceedings the doctrine of issue estoppel as it is known in the civil law and of endeavouring to deduce positive findings from a verdict of not guilty. Also the decision in Reg. v. Hogan (1974) QB 398 , rightly in my opinion overruled in Director of Public Prosecutions v. Humphrys (1977) AC 1 , illustrates the inappropriateness of issue estoppel, of its nature mutual, in criminal proceedings.
27. The whole of the evidence in question was therefore, in my opinion, admissible. I see no need to emasculate the evidence available to the prosecution to support the indictment in order to ensure the respondents in this case the full benefit of the earlier acquittal. If the Crown is not allowed to use the evidence simply to challenge the former verdict and if the presiding judge by suitable direction ensures that the jury understand that full effect must be given to that verdict, the accused will not in any sense have been placed in double jeopardy merely because evidence given at the former trial is repeated in the later trial. That the evidence was so given cannot in itself be a ground for rejecting it. But, before admitting evidence given at a previous trial which resulted in an acquittal, the trial judge should consider whether that evidence is capable of being confined so as to reduce any possible prejudice to the accused without impairing its utility in relation to the charge or charges then being tried. (at p375)
28. I now turn to consider whether the trial judge in his summing up ensured that, notwithstanding the admission of the whole of the prosecutrix's account of the event at Clifton Hill railway station, the respondents obtained the full benefit of their acquittal of forcible abduction. (at p375)
29. It is not without significance in this connexion that counsel for the accused cross-examined the prosecutrix in an endeavour to emphasize the possibility that she had not been believed by the jury at the trial for forcible abduction. The emphasis that her evidence was then given cannot very well be set against the prosecution when considering whether the accused were given the full benefit of the acquittal even if it is correct to say that, but for the admission of the evidence, the cross-examination in this respect might not have taken place. (at p375)
30. I have read and re-read the relevant portion of the summing up. It is set out verbatim in the reasons prepared by my brother Jacobs. It seems to me that the judge unnecessarily discussed the elements of the charge of forcible abduction and unnecessarily put before the jury the possible explanation of the verdict of acquittal. But in the course of that discussion he made no error of fact or of law. What he said was correct but, as I think, unnecessary to be said. It would have been enough to have emphasized that the respondents had been acquitted and that the jury he was addressing must give full effect to that verdict: that they must approach their task in relation to the charges of rape on the footing that the accused had been acquitted of having forcibly taken her away from the Clifton Hill railway station. He made it clear to the jury that they were not to consider whether or not the respondents were guilty of abduction: they could not be tried twice for that crime as they had both been acquitted of it. He did, however, say: "But consequently you are relieved of the task of considering whether the accused were or were not guilty of forcible abduction and you will confine your deliberations to the various counts of rape." (at p376)
31. If this formulation was in substance the equivalent of the statement in the summing up dealt with in Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 , namely: "So you are to draw no inferences either for or against the accused . . . from" the acquittal, I should conclude that the respondents in this case had not had the full benefit of their acquittal. But, after consideration and not without some residual misgivings, I do not think the quotation I have made from the summing up did deny the accused the benefit of the acquittal. I am assisted to that conclusion by the further remarks of the trial judge, namely: "The accused cannot be tried twice on the count of forcible abduction, for they have both been acquitted of that crime." I think the jury were told in substance that they must give effect to the acquittal and not turn their minds to the question whether the respondents were guilty of forcible abduction of the prosecutrix from the Clifton Hill railway station: that they should use the evidence only in relation to the question of her consent to the subsequent intercourse. (at p376)
32. My conclusions therefore are that the evidence in question was not wrongly admitted and that the trial judge did secure to the accused the full benefit of their acquittal of forcible abduction. (at p376)
33. But, if I am mistaken as to the latter conclusion, there would remain the question whether none the less the verdict of the jury in these proceedings should stand. The Court of Criminal Appeal did not advert to the question whether, assuming either that the evidence were wrongly admitted or that being admissible the trial judge by the terms of his summing up had not secured to the accused the full benefit of the acquittal, there was not a case for the exercise of the proviso: see Crimes Act 1958 (Vict.), s. 568 (1). (at p376)
34. I take this opportunity to emphasize that the question before a Court of Criminal Appeal is not disposed of by the discovery of error in the trial. If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted. I have elsewhere called attention to the importance of this task committed to the Court of Criminal Appeal by the Criminal Appeal Act, 1912 (U.K.) and its derivatives. (at p377)
35. As I have concluded that the civil doctrine of issue estoppel was inapplicable in this case and that the prosecution was entitled to lead evidence of all that occurred in the waiting shed at Clifton Hill railway station for the purpose of meeting a defence of consent, and that the summing up sufficiently secured to the accused the benefit of the acquittal, this appeal should succeed. The orders of the Court of Criminal Appeal should be set aside, the appeal to that Court dismissed, thus restoring the jury's verdict and the consequent conviction and sentence. (at p377)
36. Had I been of the opinion that evidence of only part of the event at Clifton Hill railway station was admissible, or that if all were admissible the summing up was inadequate in relevant respects, I would have favoured the remission of the matter to the Court of Criminal Appeal so that that Court might consider whether, notwithstanding the admission of inadmissible parts of the evidence of that event or the insufficiency of the summing up, the case was one for the use of the proviso. (at p377)
GIBBS J. The facts of this case are fully stated in the judgments of my brothers Mason and Jacobs and I need refer to them only in brief outline. Each of the two respondents was convicted of two counts of rape. At the trial it was admitted that on the night of 26th October 1975 each respondent had intercourse with the prosecutrix in a pavilion beside a football field, but it was asserted that the prosecutrix had consented. The prosecutrix gave evidence that earlier that night she had been approached by the two respondents and another man at a railway station at Clifton Hill, that she had refused to accompany them to an hotel, but that after she had been shown a gun and each respondent had taken her by an arm she had left the station with them. Later in the night she was taken to the pavilion. Evidence was also given that in a signed statement the respondent Georgiou admitted that he "helped" the prosecutrix leave the railway station, that it could be assumed that she did not wish to leave with the respondents and that his intention at the time was to have sex with her. The first question for decision is whether this evidence was rendered inadmissible by the fact that the respondents had been acquitted of a charge of abduction at an earlier trial at which, it is now claimed on their behalf, the sole issue that went to the jury was whether the prosecutrix was taken by force from the railway station. If this question is answered in favour of admissibility, the further question arises whether the learned trial judge properly directed the jury as to the effect of the previous acquittal. (at p378)
2. There is no doubt that the evidence would have been admissible if the respondents had not been tried and acquitted on the charge of abduction. The evidence formed a necessary background without which the later events of the night could not be properly understood and it was relevant to the question whether at the pavilion the prosecutrix consented to have intercourse with the respondents. However, it was held by the Court of Criminal Appeal that the rules relating to issue estoppel rendered the evidence inadmissible except in an edited form. (at p378)
3. Before us it was argued on behalf of the Crown that we should hold that the doctrine of issue estoppel has no place in the criminal law and that in so far as Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 and Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 decided the contrary they should be overruled. Although it appears that the phrase "issue estoppel" was first used by Higgins J. in Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537, at p 561 the doctrine which the phrase describes is very much older, as Lord Reid pointed out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC 853, at pp 913-914 . The principle was succinctly stated by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 531 : "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies." Similarly Lord Denning M.R. said in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630, at p 640 in a passage cited by Lord Wilberforce in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC,at p 964 : ". . .once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither partly can be allowed to fight that issue all over again. . ." The issue determined by the prior decision, and as to which an estoppel is raised, must have been essential to the conclusion, in the sense that to deny the correctness of the determination of that issue would necessarily be to deny the correctness of the decision itself: Queensland Trustees Ltd. v. Commissioner of Stamp Duties (Q.) [1956] HCA 75; (1956) 96 CLR 131, at p 152 . The estoppel only extends to what is "legally indispensable to the conclusion", that is to matters which are "in point of law the essential foundation or groundwork of the judgment, decree or order", and not to findings which concern only evidentiary facts, however important to the decision: see Blair v. Curran (1939) 62 CLR, at pp 532-533 . In order to ascertain what issues were necessary to be decided, and were in fact decided, in arriving at a judgment, it is permissible to look not only at the judgment and the reasons given for it, but at the pleadings and the evidence and indeed at any material which is relevant: see Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, at p 467 and Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC, at p 965 . (at p379)
4. The first suggestion in any Australian case that the doctrine now called issue estoppel applies in criminal as well as in civil cases appears in R. v. Cleary [1914] VicLawRp 83; (1914) VLR 571, at p 577 , where the expression "issue estoppel" was however not used. The real starting point of the discussion of this question is however R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 518-519 , where Dixon J. expressed the opinion that there may be an issue estoppel in favour of the prisoner and against the Crown in criminal proceedings although he added that the conditions which are necessary before such an issue estoppel can occur can seldom be fulfilled. He stated those conditions as follows:
"There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding."
Since that case it has been held or suggested in other decisions of this Court to which I shall shortly refer, and in decisions of the Supreme Courts of the States which have naturally deferred to the views expressed in this Court, that the principle of issue estoppel applies in criminal cases, at least against the Crown. In England the same view was expressed, obiter, by the majority of the members of the House of Lords who sat in Connelly v. Director of Public Prosecutions although Lord Devlin expressed a contrary view (1964) AC, at pp 1343-1346 . However in Director of Public Prosecutions v. Humphrys (1977) AC 1 it was held that the doctrine of issue estoppel has no place in the English criminal law. (at p379)
5. An examination of the judgments of Lord Devlin in Connelly v. Director of Public Prosecutions and of their Lordships in Director of Public Prosecutions v. Humphreys shows that three main objections have been raised to the application of the principles of issue estoppel to the criminal law. In the first place the issues in a criminal case are not defined, and the findings upon them are not made, with the same precision as is expected in a civil case where the issues are frequently, but not invariably, formulated in pleadings, and formal findings are made or reasons for judgment are given which reveal the manner in which particular issues have been determined. However this difficulty is by no means insuperable, since it may be possible in a criminal case, as in civil proceedings, to determine from an examination of the proceedings at the trial, or from other material, what issues were necessarily determined by a general verdict. The second objection is that in civil cases estoppels are mutual - they may be available either to a plaintiff or to a defendant. If the doctrine applies in criminal cases it ought, so it is said, logically apply against the accused as well as against the Crown. Indeed in Reg. v. Hogan (1974) QB 398 (which was overruled in Director of Public Prosecutions v. Humphrys the doctrine was applied against the accused person in a criminal case. There the accused had been convicted on a charge of causing grievous bodily harm to the victim with intent to cause grievous bodily harm, and, the victim having died, was subsequently charged with murder. It was held that on his trial for murder the accused was estopped from raising issues such as self-defence and specific intent which had been determined in the earlier trial. It can hardly be denied that it would be most unfortunate if an issue estoppel could be raised against a person accused of a serious crime. If that were done the jury might be precluded from trying the real issue on which guilt or innocence depended, and its verdict might in fact be dictated by an earlier decision in a case which, because of the comparative triviality of the charge then preferred, was not contested with sufficient vigour or at all, or was, albeit wrongly, not given sufficiently careful consideration by the court or jury which decided it. This objection is again not insuperable since the law, not being strictly logical, may apply the doctrine against the Crown but not against the accused. The third objection to the application of the doctrine in criminal cases is that the doctrine is an artificial one and may require a judgment to be given contrary to overwhelming evidence. In civil cases this is justified by the principle that there should be finality in litigation. In a criminal case, however, different considerations apply. A jury may decide in favour of an accused person on a particular issue simply because a reasonable doubt has been raised, and it would not seem just that in those circumstances the issue should thereafter be treated as conclusively established in favour of the accused. (at p380)
6. I am of the clear opinion that the doctrine of issue estoppel does not apply in favour of the Crown against an accused person and that Reg. v. Hogan was rightly overruled. It would be contrary to the fundamental principles of the criminal law that the members of a jury should be obliged by the decision of another tribunal to bring in a verdict against an accused person, without themselves being satisfied that issues which the accused wished to contest had been proved against him. It does not necessarily follow that the doctrine may not apply against the Crown, and I must proceed to examine the authorities in which it has been held that it does so apply. It will be seen, upon examination, that most of the cases in which the courts have professed to apply the doctrine have been cases which would not have come within the rules relating to issue estoppel had the proceedings been civil. In Co-ownership Land Development Pty. Ltd. v. Queensland Estates Pty. Ltd. (1973) 47 ALJR 519, at p 522 Walsh J. said: "In order that the principle of issue estoppel may apply it is not enough that an issue in a second action is very similar to an issue in a first action. It must be possible to assert without doubt that the issues are identical." This view is supported not only by the authorities to which Walsh J. went on to refer, but also by the remarks of Dixon J. in R. v. Wilkes (1948) 77 CLR, at pp 518-519 , and those of Fullagar J. in Jackson v. Goldsmith (1950) 81 CLR, at p 467 . The requirement that the same issue must arise in each proceeding was very strictly insisted upon in O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) (1938) 59 CLR esp at pp 756-759, 763, 768 . The English authorities also hold that a plea of issue estoppel can only succeed if an issue raised in the later proceedings was identical with an issue determined in the earlier proceedings: see Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC, at pp 913, 942-944, 965, 967-968 ; Turner v. London Transport (1977) 121 Sol Jo 829; (1977) ICR 952 . The estoppel, when raised, is against the re-litigation of an issue, and not against the presentation of evidence which is directed to a different issue, even if that evidence has been the subject of consideration, and formed the basis of a finding, in an earlier case. Most of the criminal cases in which the doctrine has been involved have not been cases of issue estoppel in the true sense; they have not been cases in which the Crown has been precluded from re-litigating in a later trial an issue determined against it in an earlier trial. Most have been cases in which the Crown has been held to be precluded from asserting that the accused was guilty of an offence of which he was acquitted at an earlier trial, when the question whether the accused had committed that offence was not in issue at the trial, but merely a circumstance relevant to the issue. (at p382)
7. The leading case of this kind is Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 . There the accused had been tried on charges respectively of carrying a firearm and of being in possession of ammunition. He was acquitted on the second charge but a re-trial was ordered on the first charge. At the second trial there was admitted without objection a statement allegedly made by the accused which contained admissions that he had committed both offences. The assessors before whom the second trial was conducted were not informed that the accused had been found not guilty of being in possession of the ammunition and was to be taken as entirely innocent of that offence. It was held that this omission rendered the trial unsatisfactory and that the conviction should be set aside. The principle on which the Judicial Committee proceeded was stated as follows by Lord MacDermott (1950) AC, at p 479 :
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
Having referred to the fact that the statement admitted in evidence, if accepted as true, went to prove the accused guilty of the charge of which he had been acquitted as clearly as it proved him guilty of the offence the subject of the second trial, Lord MacDermott continued (1950) AC, at p 480 :
"This circumstance might well have been made a ground for excluding the statement in its entirety, for it could not have been severed satisfactorily. But the point was not taken and the statement was left to the assessors, with ample warning, it is true, of the dangers of acting on a retracted confession, but without any intimation that the prosecution could not assert, or ask the court to accept, a substantial and important part of what it said."
The correctness of this decision was accepted by all the members of House of Lords in Connelly v. Director of Public Prosecutions (1964) AC 1254 and in Director of Public Prosecutions v. Humphrys (1977) AC 1 , although Lord Edmund-Davies expressed some reservations (1977) AC, at pp 49-50 . The case was treated as one of issue estoppel by Lord Morris of Borth-y-Gest (1964) AC, at p 1321 and by Lord Hodson (1967) AC, at p 1334 in Connelly v. Director of Public Prosecutions, but in Director of Public Prosecutions v. Humphrys (1977) AC 1 all the members of the House denied that the case depended on issue estoppel. In my respectful opinion to say that Sambasivam's Case (1950) AC 458 was one of issue estoppel is to use the words in too loose a sense. The Crown did not have to prove on the second trial in that case that the accused had been in possession of ammunition, and it would not have been a defence to the charge of carrying a firearm if the accused had established that he had not been in possession of ammunition: that was not an issue in that case. However the fact that he had the ammunition (if it was a fact) was relevant to the question whether he was carrying the firearm which the ammunition fitted. I respectfully accept that the principle of Sambasivam's Case (1950) AC 458 is correctly stated by Lord Salmon in Director of Public Prosecutions v. Humphrys (1977) AC, at p 43 : "Once a man is acquitted of an offence, the prosecution cannot subsequently challenge that acquittal in another trial upon another charge by seeking to prove that he was in fact guilty of the crime of which he had been acquitted." And I agree also with the rider which Lord Salmon added: "This, however, does not mean that evidence may not be called against an accused which is relevant to the prosecution's case against him merely because it may tend to show that the accused was guilty of an offence of which he had been acquitted . . . " (at p383)
8. It is now possible to turn to consider the decisions of this Court in which the application of the doctrine of issue estoppel to criminal cases has been considered. The first case, R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 , was not a case of issue estoppel, but a case in which verdicts given at the one trial were inconsistent with each other. The remarks of Dixon J. to which reference has already been made were obiter. In the next case, Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 , the accused was charged with indecent assault on a boy on three different occasions. He was acquitted on the first two counts and convicted on the third count but that conviction was set aside and a new trial was ordered. On the new trial evidence was admitted of similar acts consisting of offences on the boy on earlier occasions which it was held must at least have included the occasions in respect of which he was acquitted. This Court held that the evidence was inadmissible and that the conviction should be set aside. The reasons for the decision were expressed very briefly in the following words (1951) 83 CLR, at p 342 :
"The decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 ."
The decision was in my respectful opinion clearly right, but it was not a case of issue estoppel. The accused relied not upon the determination of an issue but upon the acquittal itself, and the question whether the accused had committed the indecent acts on the earlier occasion was not an issue at the second trial but was tendered as evidence of similar facts said to be relevant to an issue arising at the trial. The decision is an application of the principle in Sambasivam's Case and the reference to issue estoppel cannot be taken to indicate the basis on which it rests. (at p384)
9. The question next arose in this Court in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 . The accused was charged with murder under s. 18 of the Crimes Act, 1900 (N.S.W.), as amended, the Crown case being that the death of the victim had been caused during or immediately after the commission of an act of rape upon her. The accused was found not guilty of murder but guilty of manslaughter. This conviction was later quashed on the ground of misdirection [1955] HCA 59; (1955) 93 CLR 493 . The accused was then charged with the rape of the victim and was convicted. The Court set the conviction aside; it held, by a process of logical analysis which took into account the state of the law of homicide and the actual manner in which the trial had been conducted that the verdict of not guilty of murder read with the verdict of guilty of manslaughter involved as a matter of law a finding that the accused did not commit rape, and that a plea of issue estoppel was made out. In the course of their reasons the Court said (1956) 96 CLR, at p 68 : "For the Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings: R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 ; Sambasivam v. Public Prosecutor of Malaya (1950) AC 458 ." Notwithstanding the reference to Sambasivam's Case, this case cannot in my opinion be regarded as one which depends on the binding nature of an acquittal. At the first trial the accused was not acquitted of rape, and in seeking to convict him of rape the Crown was not challenging the correctness of the verdict of not guilty of murder. If the decision is correct it does provide authority for the application of the doctrine of issue estoppel to criminal proceedings. (at p385)
10. Finally in Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 on a trial for rape evidence was given by the prosecutrix that the accused had raped her on an earlier occasion. The accused had been tried for that earlier rape and acquitted. This Court held that the evidence was inadmissible quite apart from the fact of the earlier acquittal, but went on to hold that it was inadmissible on the further ground that it inevitably challenged the verdict of acquittal. Barwick C.J. (with whom Stephen, Mason and Jacobs JJ. agreed) said (1977) 139 CLR, at p 445 :
"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds."
The case was not one of issue estoppel, but an application of Sambasivam's Case. (at p385)
11. I need not discuss those decisions of the Supreme Courts of the States in which it has been accepted that the doctrine of issue estoppel applies to criminal proceedings but in which it has been held that there was no estoppel in the particular circumstances of the case: Clout v. Hutchinson (1950) 51 SR (NSW) 32 ; Reg. v. Diakakis (1952) 70 WN (NSW) 164 ; Brown v. Robinson (1960) SR (NSW) 297 ; Kosanovic v. Sarapuu [1962] VicRp 47; (1962) VR 321 ; Reg. v. Tween [1965] VicRp 89; (1965) VR 687 and Reg. v. Daniels and Kalatzis (1972) Qd R 323 ; see also Reg. v. O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219 . I should however refer to two decisions in which the Crown was held to be estopped as the result of an earlier acquittal. The first, Reg. v. Flood (1956) Tas SR 95 was a rather unusual case. The accused was charged with escaping from prison, and with breaking into premises with intent to steal. It was alleged that during the night he escaped from a prison farm where he was undergoing a sentence of imprisonment, that while absent he broke into premises with intent to steal, but that he returned to the prison farm before morning. He was acquitted of the charge of escaping from prison, and the trial judge thereupon directed the jury to return a verdict of not guilty of breaking with intent to steal. Whether the accused escaped from prison was not an issue on the second charge, although it was of course relevant to the issues; since the two cases did not raise the same issue, the decision cannot depend on issue estoppel. It is not necessary, for present purposes, to consider whether or not the learned judge misapplied Sambasivam's Case (1950) AC 458 in directing the jury to acquit. In the second of these cases, Reg. v. Clift (1952) 69 WN (NSW) 87 the accused was charged with knowingly having in possession sheep reasonably suspected of having been stolen. The only evidence upon which the suspicion could be based was evidence that the accused had stolen the sheep. However he had earlier been acquitted of the larceny of the sheep. The Court held that a suspicion that goods have been stolen cannot in law be reasonable if it is based on the belief that the person charged stole them, and that person has been acquitted of the theft. The case can possibly be regarded as one of issue estoppel, but the true basis of the decision is the principle of Sambasivam's Case. (at p386)
12. Of the English cases before Connelly v. Director of Public Prosecutions (1964) AC 1254 I need only mention G. (An Infant) v. Coltart (1967) 1 QB 432 . There the accused, employed as a servant by T, was found in possession of property belonging respectively to T and to D (a guest of T), but maintained that she intended to return it. She was charged with the larceny of D's property but was acquitted. Subsequently, she was charged with the larceny of T's property and the prosecution, in order to negative her statement of intention to return the property, led evidence that T had told her that D was leaving the next morning, and relied on this evidence as showing that she intended to keep D's property, so that it could be inferred that she had the same intention in respect of T's property. It was held that since the only relevance of the evidence in question was to show that the accused was in fact guilty of the charge of larceny of which she had been acquitted, the evidence was wrongly admitted. Salmon L.J. said (1967) 1 QB, at pp 439-440 :
"I think, however, on general principles that it would be quite wrong to allow the prosecution in order to obtain a conviction in case B to seek to show that the defendant was guilty in case A, after the defendant has been acquitted in case A. I have no doubt that, even although the defendant is acquitted in case A, evidence called against the defendant in case A could be relevant in case B, for example, to show what his intent was in case B. But it can never be permissible in case B to rely on the guilt of the defendant in case A if he has been acquitted in case A."
Widgery J., after saying that the evidence relating to D had no relevance in relation to T except on the basis that the accused was guilty of larceny in relation to D, went on (1967) 1 QB, at p 442 :
"I would draw attention, however, to the concluding words of Channell J. in Reg. v. Ollis (1900) 2 QB, at p 783 , to which reference has already been made, where he expresses his clear opinion 'that, if the evidence was otherwise admissible, it is not the less so by reason of the former acquittal'. Hence it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but if it is so called it will be called because it has relevance to the subsequent charge quite independently of any question whether the defendant was guilty or innocent on the first charge."
These statements are in line with Sambasivam's Case (1950) AC 458 . (at p387)
13. From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter. Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. The evidence in question in Sambasivam's Case should in my opinion have been excluded entirely, as their Lordships hinted, but no objection was taken to it at the trial. However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted. Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged. Such a warning will hardly be necessary if the question whether the accused has committed that offence is not raised in the later proceedings, and it would not be likely to occur to the jury to consider that question. (at p388)
14. I doubt whether any doctrine of issue estoppel, unless the rules which I have just stated can be so described, is applicable in criminal proceedings. Although, as I have endeavoured to show, the dicta in support of the application of issue estoppel to criminal proceedings are by no means lacking in weight, when the decisions are examined very few appear to be cases of issue estoppel properly so called; most of the decisions given in favour of the accused can only be rested on the principle that the Crown cannot in a second trial endeavour to show that the accused was guilty of an offence of which he was acquitted at an earlier trial. The leading case in which there was a true issue estoppel in criminal proceedings is Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 . In that case the fact that a particular issue had been determined at the earlier proceedings had to be "inferred by argument" from the verdict (to adapt words from the Duchess of Kingston's Case (1776) 20 St Tr 355, at p 538n cited in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC, at p 914 , and inferred by a process of subtle reasoning. The result may have been logically correct, but it gives an impression of artificiality; one is left with the strong impression that as a matter of fact the jury never did determine the issue of rape in favour of the accused and that the verdicts may be explained simply by the fact that the jury were misdirected. I respectfully doubt the correctness of the decision. I have already stated the main objections to the application of issue estoppel to criminal proceedings. As I have said, those objections are not insuperable, but they are compelling. The difficulty of determining what issue was previously decided, the necessity in some cases to engage in abstruse reasoning to achieve that result, and the fact that the doctrine may lead, as in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 , to a result which seems artificial and unjust, all suggest that it would be undesirable to import the doctrine into the criminal law. In addition there is the problem, which I do not find it necessary to discuss, of deciding who would be the parties for the purposes of the application of the principle, when the accused is proceeded against in one case by the Crown on indictment and in another by an individual informant in summary proceedings. (at p389)
15. Even if the principles of issue estoppel as applied in civil cases were applicable in criminal proceedings, and even if it were possible to determine precisely what issue was determined in favour of the appellants at the earlier trial (a question which I need not consider), there would be no issue estoppel in the present case. The same issue did not arise in the two sets of proceedings. Whether the appellants abducted the prosecutrix from the Clifton Hill railway station was not an issue on the charge of rape. The present case, like most cases of this kind, falls to be decided upon the principles of Sambasivam's Case (1950) AC 458 and not upon any doctrine of issue estoppel. (at p389)
16. The Crown, in endeavouring to prove that the appellants were guilty of rape, did not seek to show that they were guilty of the offence of abduction of which they had been acquitted. It is true that the Crown led evidence which tended to show that the appellants had abducted the prosecutrix, but that alone did not make it inadmissible. The relevance of the evidence did not depend upon whether the appellants had abducted the prosecutrix, that is, whether they had taken her away from the railway station by force against her will with intent to carnally know her or to cause her to be carnally known: see s. 62 of the Crimes Act 1958 (Vict.), as amended. The case may be contrasted with some of the authorities already cited. In Sambasivam's Case the prosecutor sought to show that the accused was in possession of ammunition, although the jury had acquitted him on a charge of being in possession of that ammunition. In Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 the Crown sought to prove that the accused had committed indecent assaults of which he had been acquitted. In Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 the Crown sought to prove that the accused had committed an earlier rape when he had been acquitted of that charge. In those cases the evidence tendered was relevant only if it showed that the accused had committed the offence of which he had been acquitted. That is not so in the present case. It was immaterial to the Crown case whether or not the jury concluded that the prosecutrix was taken from the railway station by force, or with intent that she be carnally known. The evidence was relevant to the question whether the prosecutrix had consented to have intercourse with the appellants even if the jury concluded (as they were bound to do if they adverted to the question) that the prosecutrix had not been abducted. The Crown, by leading the evidence, did not challenge or call in question the verdict of not guilty of abduction. In my opinion the evidence was admissible and it was unnecessary to exclude any part of it. (at p390)
17. The question remains whether the learned trial judge gave a sufficient direction to the jury in relation to the evidence once it had been admitted. He told them, on several occasions, that the appellants had been acquitted on the charge of abduction. He then went on to tell them that they were "relieved of the task of considering whether the accused were or were not guilty of forcible abduction" and directed them to confine their deliberation to the various counts of rape. He added: "The accused cannot be tried twice on the count of forcible abduction, for they have both been acquitted of that crime; but I rule that you may consider the whole of the events in considering whether or not there was consent to the particular act of intercourse occurring at the pavilion." Once the question of abduction had been raised it might have been desirable for the learned trial judge to have emphasized more strongly to the jury that they were bound to accept the verdict of acquittal and that the appellants were to be taken as entirely innocent of the offence of abduction. However a misdirection is not necessarily occasioned by the fact that the direction given to a jury is less emphatic than the canons of perfection might require. But in any case the present appeal is clearly distinguishable from Sambasivam's Case. In the first place, it was quite unnecessary for the jury in the present case to consider whether or not the appellants had by force taken away the prosecutrix from the railway station with intent to carnally know her within the meaning of s. 62 of the Crimes Act 1958 which creates the crime of abduction, whereas in Sambasivam's Case the jury did have to consider whether the accused was in possession of the ammunition. Secondly, the present case, unlike Sambasivam's Case, is not one in which the earlier verdict made it impossible for the Crown to ask the jury to accept all the evidence in question. The jury could have accepted as true every word of what was said in the present case without necessarily concluding that the appellants had been guilty of abduction. The learned trial judge made it clear to them that they were not concerned with that question and that the evidence was only relevant to the issue whether the prosecutrix had consented to the intercourse which occurred at the pavilion. In my opinion there was no misdirection. (at p390)
18. For these reasons I would allow the appeal. There were certain other grounds of appeal which the Court of Criminal Appeal did not find it necessary to consider because the view that it took of the present questions disposed of the appeal. I would remit the matter to the Court of Criminal Appeal so that those other grounds may be considered. (at p391)
STEPHEN J. I have had the advantage of reading the reasons for judgment of Aickin J. I agree with those reasons and would, accordingly, dismiss this appeal. (at p391)
MASON J. This is an appeal by the Crown, pursuant to special leave, against an order of the Court of Criminal Appeal in Victoria setting aside the respondents' convictions for rape and ordering a new trial of the respondents on two counts of rape. (at p391)
2. The Crown case was that on 26th October 1975 three men, including the two respondents, forcibly took the prosecutrix from the Clifton Hill railway station where she was waiting on the platform to catch a train to Greensborough where she lived and conveyed her to a pavilion in a nearby park where they raped her, each aiding and abetting the others. The respondents were first presented on a charge of abduction, a charge of theft, and three counts of rape, the third man Rogers having absconded. Each of the three men was charged on one count of rape as a principal and on two counts as an aider and abettor. They were acquitted by the jury on the charge of abduction and were acquitted by direction on the charge of theft. The jury were unable to agree on the counts of rape. The respondents were tried again on two counts of rape; the third count, which related to the occasion when Rogers was alleged to be the principal, was not proceeded with. (at p391)
3. At the second trial counsel for the respondents submitted that the Crown could not lead evidence that the prosecutrix was forcibly taken from the railway station on the ground that the acquittal on the abduction charge raised an issue estoppel against the Crown. The trial judge rejected this submission. The Crown led evidence that the prosecutrix was taken from the railway station against her will. The judge admitted in evidence a record of interview with the respondent Georgiou in which he made admissions as to the manner in which the prosecutrix was induced to leave the railway station. (at p391)
4. At the second trial the Crown case, based on the testimony of the prosecutrix, was that, whilst she was waiting at Clifton Hill railway station for a train to Greensborough, she was approached by the respondent Georgiou who put his arm around her and asked her to go out. She refused and moved to a seat closer to the station master's office. Georgiou, in company with the other men, approached her and attempted to persuade her to go with them to an hotel. She refused. (at p392)
5. According to the prosecutrix the respondent Storey then said to her, "Well look what I've got in my pocket. Do you know what it is?" The prosecutrix replied, "No, I don't and I don't really care." Storey is then alleged to have said, "It's a gun, I could blow your head off with it." The prosecutrix says that she looked into Storey's pocket and saw that he had a gun. She also says that Storey took her by one arm and Georgiou took her by the other and they all left the station. Rogers hailed a taxi and they all got into it. The prosecutrix sat in the back between the two respondents: Rogers sat in front. They alighted from this taxi and went into an hotel but as a friend that one of the men expected to find there did not answer a call, they caught another taxi and went to John Street near the Clifton Hill railway station. (at p392)
6. The prosecutrix and the three men alighted from the taxi and walked towards the Clifton Hill railway station. She says that she was crying and that Rogers told her that she could telephone her mother. She made a telephone call whilst Georgiou was standing beside her. She spoke to her sister Vanessa Huston and said to her, "If I'm not home tell Mum to ring the police. I'm at Clifton Hill and that I've got three boys with me and I'm scared and I don't know what to do." (at p392)
7. After making the telephone call the prosecutrix says that the three men took her to a pavilion beside a football field. Storey attempted to kiss her and when she turned her face away he said, "Oh, don't forget what I've got." The Crown sought to rely on this evidence as constituting a threat to use the gun which the prosecutrix is alleged to have seen at the railway station. She was taken into a hall in the pavilion and it was suggested that some drinks might make her feel better. (at p392)
8. According to the prosecutrix she was raped in the kitchen of the pavilion, first by Storey whilst Georgiou and Rogers were standing at the door of the kitchen, looking on, and subsequently by Georgiou and Rogers in the presence of the others. (at p392)
9. In his summing up to the jury the trial judge said:
"At the previous trial they were charged, that is Storey, Georgiou and Rogers - although Rogers did not appear at the previous trial either - that at Clifton Hill, on the day of 26th, October, 1975, they or individually as they had to be regarded by the then jury, by force took away against her will prosecutrix, a woman, with the intent to carnally know her and to cause her to be carnally known by another person. On the matter of the admitted acquittal of both accused on the count of forcible abduction, it is proper to examine the issue upon which that matter of acquittal was decided. It shows that each accused was so acquitted on the evidence relating to the Clifton Hill Railway Station. It was there that each accused was charged and the absent man - and of course, a man cannot be tried in his absence under our law - but he, Rogers, was charged on the presentment. As I have said: for that at Clifton Hill on the 26th of October, 1975, the two accused and the man Rogers, who was not present, by force, took away against her will the prosecutrix, a woman, with intent to carnally know her or to cause her to be carnally known by another person."
The jury then returned a verdict of guilty on the two counts of rape. (at p393)
10. In the Court of Criminal Appeal, Young C.J. and McGarvie J. held, in conformity with R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at p 518 ; Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 ; and Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 , that the doctrine of issue estoppel applies in the criminal law in Australia. Their Honours then stated that it was common ground that at the first trial the sole issue that went to the jury on the count of abduction was whether the prosecutrix was taken by force from Clifton Hill railway station and that the jury's verdict denied this proposition. In their Honours' view the doctrine of issue estoppel precluded the Crown from leading evidence on the second trial that was inconsistent with the acquittal on the count of abduction even though it was ostensibly directed to the question of the consent of the prosecutrix to intercourse. As part of its evidence at the second trial the Crown was seeking in effect, so their Honours said, to establish that the accused were guilty of a crime of which they had been acquitted. (at p393)
"In this case, because most of the prosecutrix's evidence about events on the railway station tended to show both that the applicants took her by force against her will and that they took her with intent that she be carnally known, her evidence on these events should have been stringently limited. It was open to her to give evidence that she met the men on the station and that Storey told her he had a gun and showed it to her. It could have been explained to the jury that the applicants had been acquitted of the charge of abduction and that this was conclusive of their innocence of that charge. Then the detailed evidence could have commenced with the first taxi journey. Such a course might have made convictions less likely, but, if so, it would simply have been because the prisoners had been acquitted of the abduction. They were entitled to the full benefit of that acquittal.
The evidence of the prosecutrix being told of and shown the gun on the station was important to the Crown case for the significant meaning which it gave to Storey's words at the pavilion, 'Oh, don't forget what I've got.' Evidence of the incident on the station regarding the gun, given in isolation, would not tend to show that the prosecutrix had been abducted with intent to have carnal knowledge of her." (at p394)
12. Gillard J., who dissented, held that there was no issue estoppel because it was not possible to isolate the precise issue arising on the abduction charge on which the jury decided in favour of the respondents. (at p394)
13. The Crown case on the appeal to this Court is that the doctrine of issue estoppel forms no part of the criminal law, that even if it does no issue estoppel arose on the facts of this case and that the directions given by the majority in the Court of Criminal Appeal as to the evidence which should be led from the prosecutrix on a new trial would result in a distortion of her testimony for on no view of her version of the events that took place could it be said that she "met" the respondents on the Clifton Hill railway station. (at p394)
14. The principal obstacles in the way of the Crown's success are the decisions of the Judicial Committee in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 , and the more recent decision of this Court in Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 . In the first of these cases the appellant had been charged with two offences, that of carrying a firearm and that of being in possession of ammunition. He was acquitted on the second charge and a retrial was ordered on the first charge. At the retrial the Crown relied on a statement alleged to have been made by the appellant the effect of which was to establish his guilt on the charge of being in possession of ammunition as well as his guilt on the charge of carrying a firearm. The assessors were not informed that the appellant had been acquitted of carrying a firearm and that he was to be taken as entirely innocent of that charge. The omission so to inform the assessors was held to render the second trial unsatisfactory in a material respect. Lord MacDermott, delivering the reasons of the Judicial Committee, said (1950) AC, at p 479 :
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence."
Their Lordships left open the question whether the statement should have been excluded in its entirety - it could not have been severed satisfactorily - because no objection to its admissibility was taken at the trial. (at p395)
15. In Garrett v. The Queen the applicant was convicted of abduction and rape, it being alleged that the offences took place in July 1976. At the trial the prosecutrix gave evidence the substance of which was that on an earlier occasion in November 1975 she had been raped by the applicant, that she then complained to the police, that the applicant was charged with rape in respect of that occurrence and that she gave evidence at the applicant's trial on that charge, saying that she did not then consent to intercourse taking place. Her evidence at the second trial was admitted despite objection and the jury were informed that the applicant had been acquitted of the charge of rape arising out of the events which took place in November 1975. The trial judge instructed the jury that they were to draw no inferences either for or against the applicant or for or against the prosecutrix from the fact of the earlier prosecution and its outcome. The trial judge considered that the evidence given by the prosecutrix as to the earlier occurrence went to show that the relationship between the applicant and the prosecutrix, which earlier had been intimate, had so far ruptured that the prosecutrix had informed against the accused and given evidence against him on his trial for rape. This Court held on appeal that the conviction should be set aside and a new trial ordered. Barwick C.J., with whom Stephen, Mason and Jacobs JJ. agreed, noted that according to the Crown case evidence that the relationship between the parties had ruptured before July 1976 was "both relevant and in the interests of the Crown desirable". The Chief Justice went on to say (1977) 139 CLR, at p 444 :
"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.
This is not a case in which evidence of similar acts would be admissible to negative accident or other likely defence by an accused or to establish system."
"It is apparent, in my opinion, that the trial judge, in an understandable endeavour to dissuade the jury from embarking on a consideration of the facts relating to the former charge of rape, did in substance tell the jury that the acquittal of the applicant was a neutral fact. But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit. To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called."
His Honour expressed the law in these terms (1977) 139 CLR, at p 445 :
"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence." (at p396)
16. Both these decisions establish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognized fully and without qualification for all purposes in criminal proceedings. It is therefore not to the point that in the instant case evidence was adduced on a charge of rape, not on a charge of abduction, a matter on which the Crown relied heavily, proceeding as it did upon the erroneous footing that res judicata applies only when the accused is charged with an offence of which he has been acquitted or with an offence which is substantially similar to the offence of which he has been acquitted. The argument advanced by the Crown, though it accurately reflects the limitations attaching to res judicata in civil proceedings, does not concede to it the special operation which it has been given in criminal proceedings in the cases to which I have referred. (at p397)
17. Compliance with the principle of res judicata does not in my view necessarily entail the exclusion at a subsequent trial of relevant evidence which might on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which he has already been acquitted. Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 did not go so far, leaving unresolved the question whether the statement should have been rejected in its entirety in that case. The ground of that decision implicitly acknowledged that the requirements of res judicata may be satisfied in an appropriate case by the admission of evidence of this kind accompanied by a precise instruction to the jury that the prior acquittal cannot be challenged and that the evidence, for what it may be worth, is to be understood in this light. (at p397)
18. There are some cases, and the present is one of them, in which the exclusion of a part of the testimony of a material witness in deference to the principle of res judicata would render the balance of the witness' testimony so incomplete and artificial as to provoke dangerous speculation on the part of the jury. In such circumstances, provided that it works no injustice to the accused, it is preferable that the evidence of the witness should be led and precise instructions should be given to the jury as to the use to which that evidence can be put. In this case the adoption of this course will in all probability advantage the accused because it tends to suggest that the testimony of the witness to the extent to which it was relied on by the Crown to support an earlier charge may have been found to be unacceptable. At the same time the Crown is not precluded from leading evidence which is relevant to the offence charged. (at p397)
19. The prosecutrix's testimony as to the circumstances in which she encountered the respondents at the railway station was part of the material on which the jury at the first trial were invited to convict the respondents of rape. Had the jury then convicted on the charge of rape, instead of disagreeing, the verdict could not have been assailed successfully as an inconsistent verdict merely because the jury acquitted on the charge of abduction. It was open to the jury to bring in a different verdict on the charge of rape. A jury properly instructed might not have been satisfied beyond reasonable doubt on the prosecutrix's evidence that she was forcibly abducted from the railway station or that the respondents then intended to carnally know her and yet feel satisfied that she was raped. (at p398)
20. The terms of s. 62 of the Crimes Act 1958 (Vict.) support this view. The section provides:
"Whosoever by force takes away or detains against her will any woman of any age with intent to marry or carnally know her or to cause her to be married or carnally known by any other person, shall be guilty of felony, and shall be liable to imprisonment for a term of not more than ten years."
Essential ingredients in the charge created by the section are the use of force and the existence of a contemporaneous intent. The evidence may have failed to satisfy the jury on either score. (at p398)
21. Fairness to the Crown and to the accused therefore suggests that the totality of the prosecutrix's testimony as to the events occurring at the railway station should have been led at the second trial and that it should have been accompanied by a direction that the respondents' acquittal on the charge of abduction could not be challenged and that the evidence must be understood in this light. The summing up by the trial judge was deficient in that, although his Honour instructed the jury that ". . . you are relieved of the task of considering whether the accused were, or were not guilty of forcible abduction, and you will confine your deliberations to the various counts of rape", he did not give sufficient emphasis to the fact that the jury were bound to accept the verdict of acquittal of the charges of forcible abduction as the only possible view of the evidence relating to those charges; it was not open to them to accept a view of the facts inconsistent with that acquittal or to use such a view for any purpose. In my opinion, the trial miscarried by reason of the trial judge's omission to give the jury a correct direction on the effect of the acquittal and the use to which the prosecutrix's testimony as to events at the railway station would be put. On this ground the conviction for rape must be set aside and a new trial ordered. (at p398)
22. However, I should not wish to be taken as assenting to the remarks made by the majority as to the evidence which should be led from the prosecutrix on a new trial. If the majority is to be understood as saying that she should say no more as to the events at the railway station than that she met the respondents there, then I would disagree with them on the ground already stated, namely, that this exclusion of relevant evidence would result in the presentation of an incomplete and artificial version of the prosecutrix's testimony. (at p399)
23. Connelly v. Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v. Humphrys (1977) AC 1 , each of which accepted Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 , are not decisive of the present case. Connelly v. Director of Public Prosecutions turned on the limits of the plea of autrefois acquit. True it is that Lord Devlin (1964) AC, at p 1341 , though acknowledging that Sambasivam v. Public Prosecutor, Federation of Malaya could be treated as "an instance of the application of the principle of res judicata to the criminal law", as Lord Morris of Borth-y-Gest treated it, saw difficulties in that approach and preferred to regard the decision as involving an extension of the principle of autrefois acquit. However, as autrefois acquit is a manifestation of res judicata, little turns on this difference in view. (at p399)
24. Director of Public Prosecutions v. Humphrys was a perjury case and for that reason involved special considerations. As a matter of principle it decided that the doctrine of issue estoppel has no place in English criminal law, in conformity with the view expressed by Lord Devlin in Connelly v. Director of Public Prosecutions, contrary to the opinions expressed by Lord Morris of Borth-y-Gest, Lord Hodson and Lord Pearce in that case (1964) AC, at pp 1321, 1334, 1366 and to that expressed by this Court in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 , R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 and Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 . (at p399)
25. The controversy represented by this conflict of opinion has more theoretical than practical importance. The view expressed in R. v. Wilkes and Kemp v. The King neither of which was a case of issue estoppel - and Mraz v. The Queen (No. 2) reflected a distinction between res judicata and issue estoppel that has been frequently stated in this Court. It was enunciated by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 in these terms:
"The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
Subsequently in R. v. Wilkes his Honour stated the distinction as it applied to the criminal law in this way (1948) 77 CLR, at p 515 :
"The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liabilty. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact betwen parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation." (at p400)
26. Once the distinction is so expressed it is possible to ascribe to the doctrine of issue estoppel the effect of an acquittal in so far as it precludes the Crown from raising the guilt of the accused for that offence in proceedings for another offence. For my part, I should prefer to attribute that effect to the principle of res judicata on the footing that the binding consequence of the verdict requires that it be accorded a full and unqualified recognition for all purposes in the criminal law. As it calls for no investigation of the precise issues of fact or law decided by the verdict except such as may be discerned from the verdict I would not regard it as an instance of issue estoppel. (at p400)
27. However this may be, it is, I think, clear that this Court contemplated that the opportunities for the application of the doctrine of issue estoppel in criminal proceedings would be far more limited than those which present themselves in civil proceedings. Indeed, the very considerations advanced by Lord Devlin in Connelly v. Director of Public Prosecutions (1964) AC, at p 1341 to support the conclusion that issue estoppel forms no part of the criminal law, considerations which influenced the decision in Director of Public Prosecutions v. Humphrys (1977) AC, at p 40 , demonstrate that the scope for the application of issue estoppel in criminal proceedings is extremely restricted. The absence of a system of pleading to throw up precise issues and the absence of special verdicts to return answers to issues so identified circumscribe the area of operation of issue estoppel in criminal proceedings. (at p400)
28. I should prefer to say, as Lord Hailsham said in Director of Public Prosecutions v. Humphrys that, "The doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings", though there is an analogous doctrine, namely, res judicata, which has been applied in criminal proceedings and has sometimes been described as issue estoppel. Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 should be regarded as an instance of res judicata and is sustainable on that footing. There the findings of the jury at the first trial could be deduced from the verdicts, without any other examination of the underlying issues. By convicting the appellant of manslaughter the jury found that he killed the deceased. By acquitting the appellant of murder the jury exculpated him of the felony of rape. (at p401)
29. For these reasons I would dismiss the appeal. (at p401)
JACOBS J. The respondents were tried in March 1977 each on two charges of rape on 26th October 1975 of a girl aged sixteen years. They were each found guilty on each charge against them and were sentenced to imprisonment. By majority the Court of Criminal Appeal set aside the convictions and ordered new trials. The Crown now appeals pursuant to special leave.
2. The respondents had been previously tried for these offences of rape. At that time they were also tried on charges of abduction of the girl, that is, that at Clifton Hill on 26th October 1975 they by force took the girl away against her will with the intent carnally to know her and to cause her to be carnally known by another person. They were acquitted by the jury of these charges of abduction but the jury could not agree on the rape charges and were discharged.
3. The circumstances upon which the prosecution had relied to prove the abduction charges were as follows. The girl was on the railway station at Clifton Hill, waiting for a train, when she was approached by the respondent Georgiou, and, a little later, by both respondents together with a third man, Rogers. The respondents attempted to persuade her to go with them to an hotel but she refused. The respondent Storey then told the girl that he had a gun and showed it to her in his pocket. Storey then took her by one arm and Georgiou by the other and in that fashion they left the railway station. After various happenings she was taken to a pavilion by a football field where the rape was alleged to have taken place. It is not necessary to give the detail of the events alleged to have occurred at the pavilion except in one particular. The girl gave evidence that when the respondent Storey tried to kiss her and she turned her face away, he said, "Oh, don't forget what I have got". The reference could have been to the gun which he had shown her in his pocket at the railway station. (at p402)
4. The girl gave evidence at the second trial of which the following extracts are sufficient to be stated for the purposes of this appeal:
". . . they walked up towards me and one of them sat down beside me and that, and he put his arm round me back.
. . .
. . . the three of them came over and the (inaudible) headed one sat down
. . .
Yes. And then what was the next thing that happened?
. . . Ahm - Mr. Georgiou stood up and Mr. Storey sat down next to me and
then we just started to talk and that, about our hobbies and that.
Yes? --- And then he said, 'Why don't you want to come to the hotel with me' and I told him why I couldn't, because my Mum would be worried and that and I was going from my girlfriend's place and - ahm - he kept on asking me why and I kept on saying, 'I'm sorry I can't', and that, and then he said, 'Well, do you want to make a bet on that', and I said, 'I still can't', and he said, 'Well, have a look at what I've got in my pocket'. He said, 'Do you know what is?', and I said, 'No, I don't, and I don't really care', and that, and I looked away. Then he said, 'It's a gun, I could blow your head off with it', and that, and I had a look in his pocket and it was a gun and that, and he said, 'Now do you want to come' and he grabbed me on the inside of the arm and he said, 'Now get up and smile' and the other two, the one with them - Mr. Georgiou was on the other side - -
Yes. Can I stop you just for one second. Who was the man who mentioned the gun to you? --- Mr. Storey.
. . .
. . . they sort of lifted me off the seat and that, and as we walked past
the gate way I could see the bloke in the ticket box and he sort of just looked at me, didn't pay much attention and then we started to walk along upwards towards the railway crossing and then one of them hailed a taxi and that, and - ahm - the black-headed one got in the front and the two, the other two got on either side of me in the taxi.
. . .
Yes? --- And that, and I was crying and that, and I put me head down on me
knees and - ahm - then Mr. Storey bent down and said to put me head up and to smile and that, but I didn't, I just kept on crying. Then we got out at some hotel - I don't know what it was and that - and they went inside and they still had hold of me and (inaudible) called out for one of their mates, they called out his name and that and nobody answered and then they started walking along the street to get hold of another taxi and (rest of sentence inaudible), and then we went to John Street and that, and he stopped at the top of John Street.
. . .
. . . What happened after that when you stopped in John Street? --- John
M'mm? --- We got out of the taxi and that and then they started walking down towards the station and that and I was crying and they kept pulling me along and telling me to shut-up, and that, and the one with the black hair said that I could ring my mother, and that, so they gave me 5 cents to make the phone call and we were - they were waiting outside the phone box, and that, and they had the door open.
And who was that? --- Mr. Georgiou.
Yes. And where was the other man when he had the door open? --- The other
Yes? --- And he had the door open and he told me to say that I was at a friend's place.
. . .
How did the phone get hung up? --- Mr. Storey hung the phone up. He
reached in and said, 'Hurry up' and then hanged the phone up.
Yes. All right. Then what happened? --- And then they walked down the (inaudible) and under the bridge ---
Yes, which bridge was this? --- Where the trains go over.
Yes? --- And then to where a football oval was." (at p403)
3. In a record of interview of the respondent Georgiou which was admitted into evidence against him at the second trial the following questions and answers appear:
"Q. Would it be fair to assume by this woman's behaviour that she did not wish to leave the station with the three of you?
A. Yes.
. . .
Q. What were you intending to do with this girl after taking her off the
A. Get some grog into her and have sex with her." (at p403)
5. The trial judge directed the jury in respect of the acquittals on the abduction charges as follows:
"At the previous trial they were charged, that is Storey, Georgiou and Rogers - although Rogers did not appear at the previous trial either - that at Clifton Hill, on the 26th of October 1975, they, or individually as they had to be regarded by the then jury, by force took away against her will prosecutrix, a woman, with the intent to carnally know her and to cause her to be carnally known by another person. On the matter of the admitted acquittal of both accused on the count of forcible abduction, it is proper to examine the issue upon which that matter of acquittal was decided. It shows that each accused was so acquitted on the evidence relating to the Clifton Hill railway station. It was there that each accused was charged and the absent man - and, of course, a man cannot be tried in his absence under our law - but he, Rogers, was charged on the presentment. As I have said: for that at Clifton Hill on the 26th of October, 1975, the two accused and the man Rogers, who was not present, by force, took away against her will the prosecutrix, a woman, with intent to carnally know her or to cause her to be carnally known by another person. It seems clear on the evidence in this case, that the jury there was required to be satisfied beyond reasonable doubt that the accused were guilty of each ingredient of that crime and on the whole of the evidence in the previous trial. The Crown was required to prove that the prosecutrix was intentionally taken from the place where she was, to some other place. The Crown was also required to prove that the taking was effected by the use of force, or the threat of force, which would include the production of a gun with the intention of intimidating the victim, or the alleged victim. The Crown was also required to prove that the taking of the prosecutrix was effected against her will, or to put it another way: the jury was required to be satisfied that the prosecutrix did not consent to being taken away. And finally the Crown was required to prove that the accused, whose case was being considered, took the prosecutrix away with the intention of carnally knowing her, or causing her to be carnally known by someone else. Carnal knowledge there simply meant sexual intercourse as distinct from rape. The intention which was required to be proved was an intention that sexual intercourse be had with her. In the light of the evidence at the last trial, the learned trial judge directed the jury to confine their attention to the railway station incident on the charge of forcible abduction.
Unless the jury was satisfied beyond reasonable doubt that each ingredient the Crown was required to prove - and which I have already referred to - was in fact proved, it should acquit the particular accused. And it did, in fact, acquit each of the accused - the other man, Rogers, not appearing. How that jury arrived at its finding, whether it was satisfied or was not satisfied on the standard of proof beyond reasonable doubt that she was in fact taken from the station, the fact that she walked, and things like that which have occurred, I do not know. They might have been satisfied that all the ingredients were not proved. But consequently, you are relieved of the task of considering whether the accused were, or were not guilty of forcible abduction, and you will confine your deliberations to the various counts of rape. But I have ruled as a matter of law that you are entitled to consider the whole of the evidence from and including the happenings on the railway station down to the acts of intercourse themselves. In other words, I have ruled as a matter of law that the Crown is not to be confined to the events occurring after the happenings on the railway station, not to have to truncate the case and present it to you in what I consider would be an artificial way, as commencing either at the pavilion or at some other point en route to the pavilion. The accused cannot be tried twice on the count of forcible abduction, for they have both been acquitted of that crime; but I rule that you may consider the whole of the events in considering whether or not there was consent to the particular act of intercourse occurring at the pavilion." (at p405)
6. A majority in the Court of Criminal Appeal held that an issue estoppel had arisen in respect of the matters which had occurred at the Clifton Hill railway station and that the Crown ought not to have been permitted to call evidence which, if accepted, would establish that the respondents took the girl away from the railway station by force against her will and with intent that she be carnally known. Young C.J. and McGarvie J. in a joint judgment discussed the authorities, in particular R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 ; Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 ; Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 ; and Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 . They also referred to Connelly v. Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v. Humphrys (1977) AC 1 but concluded that it was unnecessary further to consider those decisions, as the applicability of the principle of "issue estoppel" in the criminal law was established in Australia by the course of decision which they had discussed. They expressed their conclusion as follows:
"There are cases where it is not possible to say that a verdict of not guilty must have involved a determination in favour of the accused on a particular issue. In these cases the verdict could have been based on a finding in favour of the accused on another issue. In such cases the Crown is not estopped in a later prosecution from again calling evidence upon and relying on a fact which was in issue in the earlier prosecution where the accused was acquitted. This is simply because it cannot be shown that the issue was determined in favour of the accused in the earlier proceedings. The position is very different in the present case where the Crown called evidence upon and relied upon both the facts which were in issue as the elements of the crime of which the applicants were acquitted. The Crown called evidence in the second trial which was directed to establishing that the applicants took the prosecutrix away from the railway station by force against her will and with intent that she be carnally known. Although the first trial jury had clearly determined in favour of the accused on at least one of the two issues of fact which formed the elements of the abduction charge, the Crown in the second trial sought to establish again the same two facts in support of the charges of rape. As part of its evidence at the second trial the Crown was seeking, in effect, to establish that the accused were guilty of the crime of which they had been acquitted. It was not open to the Crown to do this: Sambasivam's Case; Kemp's Case; G. (An Infant) v. Coltart (1967) 1 QB 432 ; and Archbold's Criminal Pleading Evidence and Practice, (39th ed.), p. 182, par. 388a.
In this case, because most of the prosecutrix's evidence about events on the railway station tended to show both that the applicants took her by force against her will and that they took her with intent that she be carnally known, her evidence on these events should have been stringently limited. It was open to her to give evidence that she met the men on the station and that Storey told her he had a gun and showed it to her. It could have been explained to the jury that the applicants had been acquitted of the charge of abduction and that this was conclusive of their innocence of that charge. Then the detailed evidence could have commenced with the first taxi journey. Such a course might have made convictions less likely, but, if so, it would simply have been because the prisoners had been acquitted of the abduction. They were entitled to the full benefit of that acquittal." (at p406)
7. This Court granted special leave to appeal limited to two questions: (a) whether the doctrine of issue estoppel is applicable in criminal proceedings; and (b) what are the limitations of its use in such proceedings. Therefore the grounds of appeal were limited and were expressed by the appellant Crown as follows:
"1. That the Full Court of the Supreme Court of Victoria was wrong in holding that the doctrine of issue estoppel is applicable in the criminal law of the said State so that evidence previously adduced by the Crown in support of a charge of forcible abduction contrary to s. 62 of the Crimes Act 1958 in respect of which each of the respondents had been acquitted, was inadmissible on their trial for offences of rape.
2. That the Full Court of the Supreme Court of Victoria was wrong in holding that evidence previously adduced by the Crown in support of a charge of forcible abduction contrary to s. 62 of the Crimes Act 1958 in respect of which each of the respondents had been acquitted, was inadmissible on their trial for offences of rape." (at p407)
8. Despite the terminology of the conditions on which special leave was granted and the expression of the first ground of appeal, I prefer to avoid, if I can, the use of the phrase "issue estoppel". What has to be determined is whether there is in the criminal law any rule (extending in its application beyond the pleas of autrefois acquit and convict) on the subject matter of the conclusiveness in a later criminal trial on a different charge of a finding in favour of the accused of a matter in issue in an earlier prosecution. If so, what is that rule? If there is such a rule, then it does not seem to me that it matters whether the rule is classified as a rule of evidence or a substantive rule of law governing the course of the later trial. There is no need for it to be described as "issue estoppel" particularly if thereby it is sought to import into the criminal law all the special rules which govern that subject matter in civil actions. (at p407)
9. It is generally agreed that there is a rule in the criminal law which goes beyond the plea of autrefois acquit and which makes an earlier acquittal conclusive in favour of the defendant in a later trial that he was not guilty of the offence upon which he had been acquitted. I am prepared to accept that the rule in criminal cases is based upon the underlying notion that a man should not be placed in double jeopardy. But to state this does not say much because though this is convenient as a statement of the policy of the rules it does not itself state a rule or principle from which deductions can be drawn. It must still be determined what is meant by double jeopardy. There is clearly double jeopardy when a plea of autrefois acquit is an answer to the second charge. But here we are not concerned with that application of the principle. We are concerned with the cases where there has been an acquittal on the earlier occasion, but the conditions for the plea of autrefois acquit are not present. (at p407)
10. There is double jeopardy when the commission of the second offence can be shown to have been an essential element of the first offence. This was the position in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 . There is also double jeopardy when the commission of the first offence can be shown to be an essential element of the second offence charged. This is so whether or not the plea of autrefois acquit be open. Thus, conversely to the position in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 , if there had been an acquittal of rape, and then the woman had died, the defendant could not be convicted of murder upon evidence that, in the course of committing the felony of rape, he had killed the woman. The acquittal on the rape charge would be conclusive. (at p408)
11. Where there is only one element of fact in the offence, of which the defendant has been acquitted, then that element cannot be proved. This explains Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 . The indecency of the act is the only element apart from the act itself in the offence constituted by s. 81 of the Crimes Act, 1900 (N.S.W.). Consent is no defence. Therefore the evidence which was admitted as evidence of "similar facts" was evidence of indecent acts which were by the statute indecent assaults. The finding of the jury in the earlier trial was that those indecent acts had not taken place. The defendant was entitled to the full benefit of that finding; and, of course, any act which may have been an actual assault but was not an indecent act was quite irrelevant as a similar fact and was for that reason inadmissible. (at p408)
12. A degree of complexity arises when the offence of which a defendant was acquitted on the earlier trial contained a number of elements which each required distinct proof. The questions which then arise can be framed as follows. Where in a trial on which then arise can be framed as follows. Where in a trial on prosecution and the defendant is acquitted, is evidence tending to show that (a) one or another of those issues; or, alternatively (b) all of those issues, ought to be decided adversely to the defendant, admissible in a subsequent prosecution of the defendant in which that evidence is relevant and otherwise admissible? Particularly in relation to the present case was it open to the prosecution to adduce evidence, as facts relevant to the question whether the sexual intercourse which later occured was without the consent of the girl, (a) that the respondents had taken the girl by force and against her will away from Clifton Hill railway station and (b) that the taking away was with intent to carnally know her. Alternatively, was it open to the prosecution to adduce evidence of one or the other, but not both, of these facts? (at p408)
13. In my opinion, it is not open to a jury in a later trial to conclude that all the elements of an offence for which the defendant was tried and acquitted in an earlier trial are proven in the later trial. To find all the elements of an offence proved is to find that the defendant committed the offence. It is widely recognized that this is not permissible: Sambasivam's Case (1950) AC 458 ; Director of Public Prosecutions v. Humphrys (1977) AC 1 ; and the other cases to which I have referred). Consequently, every effort should be made at the later trial to avoid evidence in that later trial taking such a form that the jury could conclude therefrom that all the elements of that offence are proven; if despite those efforts the evidence for some reason or another comes to be admitted, then the clearest and most specific direction is required to be given to the jury that they must not reach the conclusion that all those elements are proven. The determination in the earlier trial that all the elements were not proven against the defendant must be accepted as a correct finding. (at p409)
14. The only possible exception to this rule is where in the later trial the defendant is charged with an offence consisting of an act or acts which caused or may have caused the jury in the earlier trial to determine an element or elements of the offence in his favour. A charge of perjury committed in the course of the earlier trial is an obvious example. The existence of this exception has been established in England by Director of Public Prosecutions v. Humphrys. (at p409)
15. Although all the elements cannot be accepted as proved in the later trial individual elements less than the whole can be: Reg. v. Ollis (1900) 2 QB 758 . But what if an examination of the transcript of the earlier trial discloses that only one element of the offence was put in issue so that it can be concluded that the jury determined that issue in favour of the defendant? Can that finding be traversed by the prosecution in a later trial? I do not think that any short definitive answer can be given to that question. A negative answer does not follow from the decision in Kemp v. The King or Mraz v. The Queen (No. 2). They are explicable on other grounds as I have indicated earlier. But one thing is to me clear. The fact that only one issue or element of the offence was submitted to the jury at the first trial must be clearly established. It was not so established in the present case. It may be that the issue of taking away by force from the railway station was more strongly contested than the issue of intent to carnally know but it cannot be said that both elements of the offence were not left to the jury. (at p409)
16. In the present case the prosecution adduced evidence on both elements of the offence of abduction despite the earlier acquittal of the respondents of that offence. In my opinion this was not permissible. It has been submitted on behalf of the appellant Crown that this was permissible; that there was no double jeopardy because the evidence given at the trial for rape was not evidence of a fact in issue but only of a fact relevant to a fact in issue. It was submitted that the issues on the charge of rape were intercourse with the girl and absence of her consent, quite different issues from those on the charge of abduction. It is argued that whether or not the respondents took the girl away by force against her will from the railway station with intent to carnally know her was not a fact in issue on the trial for rape but was only a fact relevant to a fact in issue, and was therefore admissible. (at p410)
17. I cannot accept the discrimen of admissibility as being whether the matter sought to be proved in the second trial is a fact in issue in that trial as distinct from a fact relevant to a fact in issue in that trial. It seems to me that the essential basis of the rule against double jeopardy is that the jury in the trial for the second offence is not permitted to find against the defendant a fact, whether it be an element of the second offence or whether it be a fact relevant to the determination of the elements constituting that offence, which can be shown to have been an element of an offence in respect of which the defendant has been acquitted on an earlier trial and to have been certainly determined in his favour at that trial. (at p410)
18. Nor can the jury be invited on the second trial to find a number of facts which taken together would establish the elements of the offence of which he has been acquitted. But subject thereto they may nevertheless find facts, whether they be facts in issue or facts relevant to facts in issue at the second trial, even though they appear, and however strongly they appear, to throw doubt upon the innocence of the defendant of the first offence. The defence of an alibi would appear to me to fall into this class of case. Where a defendant on the earlier trial has raised an alibi a finding in his favour may strongly suggest that the jury accepted the defence of alibi. But the issue for the jury was whether all the elements of the offence charged against him were established. The jury may not have been satisfied on any one or more of those issues. The question of alibi was not the issue. It was no more than evidence which may or may not have assisted the jury in their task of determining whether the elements of the offence charged had been proved. (at p410)
19. Upon analysis it will be found that there is double jeopardy both where the matter sought to be proved is an element of the second offence and where that matter consists only of a fact relevant to the establishment of an element of the second offence. The defendant may be convicted of the second offence upon the strength of the conclusion reached in respect of the fact, even though no more than a fact relevant to a constituent fact of the second offence, and, if that conclusion is contrary to a fact which is a constituent of the first offence and which has been found in favour of the defendant, then that is double jeopardy. He is convicted of a second offence upon the strenght of a fact which was an element of an offence for which he had been tried and which could be shown to have been conclusively determined in his favour. (at p411)
20. In the present case the prosecution theoretically could prove either that the girl was taken away from the railway station against her will, or, alternatively, that at the time the girl left the railway station with the accused, the latter had the intention to have sexual intercourse with her (I abbreviate the element in the offence of abduction because the abbreviation does not matter in the present context). But the prosecution could not advance the contention that both these facts were proper to be proved and were proved. Two things follow. First, the existence of an intent to have sexual intercourse with the girl at a time when no constraint was placed upon her would hardly seem to be relevant to what happened at a later time when that intention was coupled with a constraint imposed upon her. Secondly, evidence that the girl was taken away from the railway station by force against her will, in the context of a charge of subsequent rape, carries an implication of an intent, present at the time of the taking away, to have sexual intercourse with her. Therefore, the evidence would need as a matter of discretion to be excluded, or it would need to be made clear to the jury that there was no suggestion that the forcible taking away was with intent to have sexual intercourse. Here again, if there could be no suggestion of an intent to have sexual intercourse, a taking away by force would seem hardly relevant to the question whether at a later time sexual intercourse occurred without the girl's consent. Evidence of both elements of the offence of abduction was allowed to be given. There was no sufficient warning to the jury that it was not open to them to find both these elements. Moreover, the particular nature of the offence of abduction in its relation toa subsequent rape made it practically impossible for the respondents to have the benefit of their acquittal on the charge of abduction if evidence of a taking away by force from the railway station was admitted. (at p411)
21. I am therefore of the opinion that the conclusion of the majority in the Supreme Court was correct and that the appeal should be dismissed. (at p411)
MURPHY J. The two respondents were originally tried on an indictment charging each with theft, and the abduction and rape of a young woman. There were three counts of rape against each respondent, charging him as principal, as aiding and abetting a rape by the other respondent, and as aiding and abetting a rape by another accused who did not appear to stand trial. The jury acquitted the respondents of theft (by direction), acquitted them of abduction, and disagreed on all counts of rape. The respondents were tried again on an indictment containing the same three counts of rape and were convicted on each count. (at p412)
2. The young woman gave evidence at the first trial that she was taken away by force and threats of force from a railway station and, after some time, taken to a pavilion where the rapes occurred. She gave similar evidence at the second trial. Counsel for the accused objected to the admission of the evidence of her having been taken away by force or threats of force from the station. (at p412)
3. The Supreme Court of Victoria (Court of Criminal Appeal) set aside the convictions and ordered a new trial. The majority held that the evidence of the taking by force or threats of force was inadmissible as there was an issue estoppel in the accused's favour arising from the acquittal of abduction. From an examination of the course of proceedings, their Honours held that although abduction was the taking by force or threats of force with intent to know carnally, the only issue in the abduction trial was whether the young woman was taken by force from the station, and that the acquittal consequently created an estoppel in the accused's favour on that issue. They also said that, even if the intent to know carnally was also an issue, then there was an estoppel in the accused's favour on both those issues. (at p412)
4. On the first trial, no special finding was made and no issue was determined in the accused's favour except the general issue. It follows from the acquittal of abduction that all the jury were not satisfied that the Crown had made out all the matters which it had to prove or disprove; it may be inferred that each juror was not satisfied either of the force or of the intent; it does not follow that each was not satisfied of the force; and it does not follow that each was not satisfied of the intent. Therefore, it is not established that the verdict involved a determination in favour of the accused on either of those issues. One of the traps in issue estoppel is to treat a jury as a unit, rather than a tribunal whose members are entitled to reach their verdict by different paths. Thus, the acquittal created estoppel only on the general issue of abduction; this was not in issue in the second trial. (at p412)
5. On the second trial, the prosecution was therefore entitled to lead evidence relevant to the charge of rape and not otherwise inadmissible, even if it tended to establish the elements which had to be proved to secure a conviction of the abduction of which they had been acquitted. In fairness, the accused should be entitled to prove that they had been acquitted and were innocent of the charge of abduction, that is, of taking by force (or threats of force) with intent to know carnally, and the Crown should concede this in order to give them the full benefit of the acquittal. But the accused are not entitled to claim that the acquittal means that they did not take by force, or that it means they did not take with intent to know carnally. Whether the young woman left the station voluntarily or involuntarily was relevant on the rape trial to the issue of consent and also to the issue of the later intent of the accused. The evidence in question was rightly admitted. (at p413)
6. I am not satisfied that the trial judge, in directing the jury upon the effect of the acquittal, occasioned any miscarriage of justice. The majority of the Court of Criminal Appeal were in error and the decision of that Court (setting aside the conviction and ordering a new trial) was erroneous. (at p413)
7. A number of general questions on issue estoppel in the criminal law were raised. I will deal with these briefly. (at p413)
8. A verdict of conviction or acquittal is generally irrelevant on a later trial unless this is for the same (or substantially the same) offence when it is, of course, admissible to support a plea of autrefois convict or autrefois acquit; evidence directed towards the proof of guilt on a trial of one charge cannot be repeated on the trial of another charge unless strictly relevant to the issues arising on the latter trial. (at p413)
9. Estoppel in favour of the accused. If a distinct issue of fact or mixed fact and law has been found in favour of the accused against the Crown (for example, by a special finding), it is conclusive in any later proceedings between the Crown and the accused. If the same issue arises as an element (to be proved or disproved by the Crown) in the second trial, application of this principle would require acquittal on the second trial. In this sense, issue estoppel has a place in the criminal law. (at p413)
10. The cases and learned articles on issue estoppel are numerous. The leading Australian case is Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493 ; the application of issue estoppel was based on a finding that the jury reached a verdict convicting Mraz of manslaughter, not murder, by absolving him of rape. The reasoning adopted by the Court and attributed to the jury was extremely artificial and, in my opinion, unconvincing. (at p413)
11. Estoppel in favour of the government. Issue estoppel in criminal law should not be mutual. The government should not be entitled to rely upon a determination (short of a conviction) in its favour. There is a vast difference between the position of the government and that of the accused. The government, presumably, has ample access to legal advice, and as it is the initiator in criminal proceedings, it should not be excused for ignorance of the facts. But the accused may be ignorant of the facts or law which go to the issue, he may prefer not to fight an issue strenuously or even to concede a particular issue in order to concentrate on some other or others. It seems wrong that an individual who might be able to succeed on an issue if there were no estoppel should be prevented by estoppel from even attempting to succeed. Furthermore, the introduction of estoppel in favour of the Crown in a jury trial would (if accepted by the jury) undermine the role of the jury. This was illustrated in Reg. v. Hogan (1974) QB 398 (since overruled in Director of Public Prosecutions v. Humphrys (1977) AC 1 ) in which the accused, after being convicted of assault with intent to do grievous bodily harm, was charged with murder because the victim died within a year and a day of the assault. On his trial, the judge directed the jury that there was an issue estoppel on all the matters which the Crown had to prove in the previous trial (the violence, the intent and the absence of self-defence) and left for the jury's consideration merely whether the assault caused the death (and whether provocation reduced the offence to manslaughter). The jury acquitted the accused. (at p414)
12. The arguments in this Court were directed exclusively to issue estoppel in jury trials, but the problem also concerns non-jury trials which comprise the overwhelming bulk of criminal trials. Conviction by estoppel is unacceptable, even in non-jury trials. (at p414)
13. The appeals should be allowed, and the judgments and orders of the Court of Criminal Appeal should be set aside. (at p414)
AICKIN J. The facts upon which the resolution of this matter depends are set out in other judgments and they need not be repeated here. When special leave was originally granted in October 1977 it was limited to two specific questions of law, namely, (a) whether the doctrine of issue estoppel is applicable in criminal proceedings, and (b) what are the precise limitations on its use in such proceedings. Before the case came on for hearing in February 1978 judgment had been delivered in Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 . In that case the accused had been convicted of rape and in the course of the trial evidence was given, which if believed, would have established rape on a previous occasion in respect of which however the accused had been acquitted. It was not found necessary to consider or discuss the question of whether issue estoppel is available in criminal proceedings, and the case was resolved by concluding that "the relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment; it is res judicata." Thus the Court gave to the doctrine of res judicata in the criminal law an operation beyond autrefois acquit, which is limited to a second charge for the same offence. Accordingly an acquittal of one offence must, in subsequent proceedings on any other charge, be treated as decisive of innocence on the original offence. Evidence which, though relevant in a trial for a different offence, would show or tend to show guilt of the first offence cannot be permitted to do so. In the end it seems to me that the present case must turn upon the proper application of that principle for reasons which I shall set out. It is however first necessary to say something concerning issue estoppel itself. (at p415)
2. Although the term "issue estoppel" was apparently first used by Higgins J. in Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR, at p 561 the conception has a much longer history than the name. This clearly appears from the judgment of Higgins J. [1920] HCA 79; (1921) 29 CLR 1, at pp 560-563 which was approved by the Privy Council and from the reasons of their Lordships (1926) AC 155, esp at pp 170-171 . See also the discussion in Spencer Bower and Turner on Res Judicata, 2nd ed. (1969), pp. 151-157. (at p415)
3. The nature and content of the doctrine is stated by Dixon J. in Blair v. Curran (1939) 62 CLR, at pp 531-533 as follows:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1855) 4 El & Bl 780, at p 794 (119 ER 288, at p 293) , the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoysted v. Commissioner of Taxation (1926) AC 155, at p 165 . But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation." (at p416)
4. It will be immediately apparent that the doctrine so formulated can have only a limited operation in the criminal law. The reason is that, at least in the case of an acquittal, it will be seldom that decisions on separate issues involved as indispensable steps to the final conclusion can be ascertained. In most criminal charges the offence will involve more than one element which must be proved in order to establish guilt, but a verdict of not guilty will establish no more than that the jury was not satisfied that all elements had been proved. The requirement of intent as well as the doing of the relevant act or acts is itself sufficient to demonstrate in the case of common law crimes and those derived from the common law that more than one element is necessary to be established before a verdict of guilty can be given. Some statutory offences which involve no intent may however involve only a single factual element. In the case of a conviction the situation is somewhat different in that a finding of guilty must involve a finding of all the material elements of the crime, including intention, and one can therefore say that there must have been a determination unfavourable to the accused on each separate element involved. (at p417)
5. When the question of the possible application of issue estoppel in criminal cases arose in R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at p 518 , Dixon J. said:
"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright J. in R. v. Ollis (1900) 2 QB, at p 769 , which in effect I have adapted in the foregoing statement. Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur." (at p417)
6. It will be observed that Dixon J. drew express attention to the fact that the conditions for issue estoppel can seldom be fulfilled in such a case because of their very nature. Special leave to appeal was refused but in the course of his reasons Dixon J. also pointed out the difference between issue estoppel and autrefois acquit and autrefois convict by saying (1948) 77 CLR, at p 519 :
"They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties." (at p417)
7. The next case in which the point was referred to was Kemp v. The King [1951] HCA 39; (1951) 83 CLR 341 . In that case the accused had been charged with indecent assault on a boy aged thirteen years on three counts in respect of three separate occasions. He was acquitted on the first and second counts but convicted on the third. The conviction was set aside and a new trial ordered. On the new trial, in proof of similar acts by the accused, evidence was admitted of the occasions in respect of which he had been acquitted. The accused was convicted on the new trial. Upon appeal to the High Court the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 was applied. In a very short joint judgment delivered by Dixon J. the Court said (1951) 83 CLR, at p 342 :
"The decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC, at p 479 is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the first two counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 518, 519 ."
"But it seems to us to be clear upon the evidence that the occasions covered by the indictment were at least included in the evidence of similar acts which was tendered and received. Evidence of these occasions was, in our opinion, inadmissible. The evidence was admitted after objection. Moreover, no direction was given to the jury enabling them to understand that they should discard any evidence covering the same matters as were the subject of the first two counts. The conviction, therefore, in our opinion, cannot be supported." (at p418)
8. This case cannot be regarded as a decision based upon issue estoppel, but one based upon the conclusiveness of the acquittal itself rather than the prior determination of particular issues. It was not possible to determine the basis of the acquittal so as to ascertain what individual issues were conclusively determined. It may be observed that it is not clear whether the Court decided that the evidence was not admissible at all, or whether, if admitted, it required a specific direction as to how it could be used. (at p418)
9. In Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 there were two charges against the accused, one carrying a firearm, not being a firearm which he was duly licensed to carry or possess under any other written law, and the other, being in possession of ammunition "without lawful authority therefor". It was held that the regulation under which the charges were laid did not require any specific intent but dealt with the carrying of firearms simpliciter if engaged in knowingly and without lawful authority. The appellant was acquitted of the second charge but convicted on the first charge. However a retrial was ordered on the first charge. Their Lordships said (1950) AC, at p 479 :
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
Lord MacDermott then says that those considerations had not been given proper weight, but added (1950) AC, at pp 479-480 :
"More important than these matters, however, was the reliance of the prosecution on the statement of September 13, which, if accepted as the truth, went to prove the appellant guilty of the charge of which he had been acquitted as clearly as it proved him guilty of the offence the subject of the second trial. This circumstance might well have been made a ground for excluding the statement in its entirety, for it could not have been severed satisfactorily. But the point was not taken and the statement was left to the assessors, with ample warning, it is true, of the dangers of acting on a retracted confession, but without any intimation that the prosecution could not assert, or ask the court to accept, a substantial and important part of what it said." (at p419)
10. Those passages indicate that their Lordships did not treat the case as raising a question of issue estoppel and so far as the report shows there was no basis on which any individual issue could be identified as having been found in favour of the accused. Their Lordships did not take the view that the evidence was necessarily inadmissible, but said merely that, if it were admitted, the assessors, who evidently stood in a position analogous to that of a jury, should have been clearly told that they could not take it as any indication that the accused had been guilty of possessing the ammunition and that they must take him as having been "entirely innocent of that offence". (at p419)
11. In this discussion of the criminal cases I think it useful to include a reference to Brewer v. Brewer [1953] HCA 19; (1953) 88 CLR 1 where there is a full and careful explanation of the nature of issue estoppel in the judgment of Fullagar J., with which Dixon C.J. agreed. He refers to the explanation of the doctrine given by Somervell L.J. in In re Koenigsberg; Public Trustee v. Koenigsberg (1949) Ch 348, at pp 359-360 and then to Hoysted's Case [1921] HCA 56; (1921) 29 CLR 537 . He then says (1953) 88 CLR, at p 15 : "There is another point to be noticed. Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue", thus emphasizing what Dixon J. said in Blair v. Curran (1939) 62 CLR, at pp 532-533 . That is an aspect which needs constantly to be borne in mind, especially in criminal cases, because it will often happen that there are no individual issues which can be seen to have been necessarily determined in the course of arriving at the ultimate conclusion of guilty or not guilty. Evidence of facts given in such a case cannot be excluded on the ground of issue estoppel. This further demonstrates that it will be an unusual criminal case in which it is possible for the requirements of issue estoppel to be satisfied. (at p420)
12. Such a case was however found in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 ("Mraz (No. 2)"). The accused was charged with the murder of a woman in circumstances in which the case against him was that the death had been caused during or immediately after rape by the accused, contrary to s. 18 of the Crimes Act, 1901-1951 (N.S.W.) which provides that the crime of murder is committed if the act of the accused causing death was done during or immediately after the commission of the crime of rape. It appears that at the trial it was not disputed that there had been sexual intercourse between him and the woman and that at the time or shortly afterwards the woman had died, the real issue being whether the intercourse had taken place against the woman's will. The jury found the accused not guilty of murder but guilty of manslaughter. The conviction for manslaughter was quashed by the High Court in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493 . The accused was then charged with rape in a separate indictment. In addition to pleading not guilty the accused entered a special plea of issue estoppel in reliance on the verdict in the earlier proceedings. That plea was rejected and he was convicted of rape. The High Court granted special leave to appeal and upheld the appeal. The Court held that the verdict of not guilty of murder, but guilty of manslaughter on the first indictment, when examined in the light of the law of homicide, necessarily established that the jury had found that an act of the accused had caused the death of the woman (because of the verdict of manslaughter), but also necessarily involved the unexpressed but necessary finding that the accused did not commit rape, or alternatively, that, although his act caused the death, it was not done during or immediately after the commission of the rape, (because otherwise he could not have been acquitted of murder). The Court after examining the circumstances of the first trial excluded the latter hypothesis and concluded that the verdict of manslaughter must be taken. Accordingly the plea of issue estoppel had been made out, because the issue of rape or no rape had been conclusively determined in arriving at the verdict of not guilty of murder, but guilty of manslaughter. It is thus a direct decision upon the question of the availability of issue estoppel in a criminal case and one in which the plea of issue estoppel in fact succeeded. It is not necessary to quote the relevant passages (1956) 96 CLR, at pp 67-72 of the judgment of the Court (Dixon C.J., Williams, Webb, Fullagar and Taylor JJ.). They will be seen to turn exclusively on the proper application of issue estoppel. (at p421)
13. In the United Kingdom the question has been examined in two recent cases in the House of Lords, as well as in some earlier cases. In Connelly v. Director of Public Prosecutions (1964) AC 1254 there is a general discussion of autrefois acquit and convict, res judicata and of issue estoppel, including an examination of the Australian and American cases. It is not necessary to consider the whole of that discussion and it is sufficient for present purposes to note what was said about issue estoppel. Lord Morris (1964) AC, at pp 1321-1322 , in the course of a discussion of autrefois convict and acquit and of res judicata, referred to Mraz (No. 2) [1956] HCA 54; (1956) 96 CLR 62 with apparent approval, but pointed out that in most criminal cases issues are not capable of being isolated and analyzed. Lord Hodson (1964) AC, at pp 1333-1334 also expressed approval of the application of issue estoppel in criminal cases and referred to the Australian cases, but concluded that issue estoppel could not apply to the case under consideration because it was not possible to establish any particular issue as having been determined by the verdict of not guilty. Lord Devlin (1964) AC, at p 1344 said that issue estoppel had been recognized in Australia and the United States, referring to Mraz (No. 2) and Sealfon v. United States [1948] USSC 1; (1948) 332 US 575 (92 Law Ed 180) . He said that the difficulty about its application in criminal cases was the absence of a determination by a jury's verdict of any particular issue. He concluded by saying, "In my opinion, therefore, if issue estoppel is applicable in criminal trials, it does not assist the appellant here.", and added, ". . . I entertain serious doubts about the value of the doctrine to the criminal law." (1964) AC, at p 1345 , but said that it was unnecessary to say more about the difficulties as the point failed in any event. Lord Pearce (1964) AC, at p 1366 referred to the United States and Australian cases and said, "The principle established by those cases seems to me to be right, but they do not help the prisoner in this case." Lord Reid did not refer to this aspect of the case. (at p422)
14. In Director of Public Prosecutions v. Humphrys (1977) AC 1 a differently constituted House of Lords disagreed with the views expressed by Lord Morris, Lord Hodson and Lord Pearce in Connelly's Case (1964) AC 1254 and all of their Lordships took the view that issue estoppel formed no part of the criminal law of England. Lord Dilhorne (1977) AC, at pp 18-21 said that issue estoppel had no place in English criminal law and that it was very undesirable that it should have. He also said that he thought it undesirable that it should bind both parties in a criminal case as it would in a civil case. Lord Hailsham (1977) AC, at pp 35-38 referred to the Australian cases and said that he thought that in R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511 Dixon J. had used the expression issue estoppel "loosely as a kind of intellectual shorthand" or as a "label" and that in Mraz (No. 2) he was not going beyond anything that had been said in R. v. Wilkes which in effect relied upon double jeopardy. He also pointed out that it would not often be possible to satisfy the requirements of issue estoppel in criminal cases. With due respect to his Lordship I am unable to agree with that analysis of Mraz (No. 2), nor do I regard it as a reason for not applying issue estoppel in criminal law, that it is only on rare occasions that it will be possible to isolate individual issues. Lord Salmon (1977) AC, at pp 44-45 also took the view that in the Australian cases the expression issue estoppel had been used in the loose sense. His Lordship also says of Mraz (No. 2) that, "Undoubtedly the verdict of not guilty of murder had implicit in it a verdict of not guilty of rape.", but for reasons which I set out below I am unable to agree with that view. Lord Edmund-Davies in the course of an analysis of the authorities refers to the difficulty of analyzing individual issues in a case where there has been a verdict of not guilty and to the undesirability of introducing issue estoppel into criminal law because it involved mutuality. He said there was no decision in any Commonwealth court that enabled the Crown to rely upon it. Lord Fraser agreed with the other speeches. All of their Lordships took the view that, even if issue estoppel were part of English criminal law, it could not apply in that particular case because there was an exception in cases of fraud and of perjury, so that it was impossible to rely upon issue estoppel in a case where the verdict of not guilty had been obtained by the perjury of the accused. (at p423)
15. I find myself unable to agree with the views expressed by their Lordships in Director of Public Prosecutions v. Humphrys (1977) AC 1 and in particular with their analysis of Mraz (No. 2) [1956] HCA 54; (1956) 96 CLR 62 . No doubt the phrase "issue estoppel" may be regarded as a "label" or as a shorthand expression, but what the label and the shorthand identifies is the kind of estoppel described by Higgins J. in Hoysted's Case [1921] HCA 56; (1921) 29 CLR 537 and by the Privy Council on appeal in that case. The joint judgment of the Court in Mraz (No. 2) [1956] HCA 54; (1956) 96 CLR 62 shows plainly that the case was not one of autrefois acquit and that the mere acquittal of murder did not, and indeed could not, have implicit in it a verdict of not guilty of rape. That judgment (1956) 96 CLR, at pp 68-70 makes it clear that the verdict of not guilty of murder but guilty of manslaughter did not itself carry any implication of not guilty of rape and that the fact that that issue had been determined in favour of the accused appeared only from the analysis of what took place at the first trial, which demonstrated ". . . what issue it was that the finding must necessarily cover." I should add that, as I understand the reasons of this Court in Garrett v. The Queen [1977] HCA 67; (1977) 139 CLR 437 , the principle there applied that an accused is not to be deprived of the full benefit of his acquittal could not have been applied in Mraz (No. 2) because acquittal of murder was itself entirely consistent with both guilt and innocence of the charge of rape. Some of their Lordships took the view that the Court has an inherent jurisdiction to prevent an abuse of its process in a case where a prosecution for perjury was merely an attempt to secure a conviction on the original charge. I do not think that, even if such power exists, it is a sufficient reason for taking the view that issue estoppel forms no part of the criminal law. (at p423)
16. In the present case, however, the circumstances show that it is not a case for the application of issue estoppel. This is because it is not possible to say that, by the acquittal of the accused of the crime of abduction, the decision of the jury conclusively determined any particular issues, other than the general issue of guilty or not guilty. The crime of abduction involves the elements of the taking of a female person against her will from some place by force and with the intent that she should be carnally known. There is nothing in the circumstances to warrant a conclusion that the decision of the jury was based on the absence of any particular one or more or all of those elements. No doubt each of those matters is a separate issue but in the circumstances it is impossible to determine what view the jury took about any of them. The only matter that is established is the ultimate conclusion that the prisoner was not guilty. No one of the possible individual issues can be said in the circumstances to have formed a necessary foundation for the ultimate conclusion. Accordingly, the position is one in which there is no issue estoppel which prevents the proof by the prosecution of any of the happenings at the Clifton Hill station which led to the girl leaving the station in the company of the accused. Such evidence would be relevant to, but not decisive of, the question whether, later in the same evening, she did or did not consent to sexual intercourse. As I have said above it must always be borne in mind that issue estoppel applies only to issues. There is no estoppel as to evidentiary facts found in the course of determining an issue. There is nothing to prevent a party, in a later proceeding in relation to a particular issue of fact negatived in the earlier proceeding, tendering evidence of those same facts directed to a different issue. (at p424)
17. For those reasons I must differ from the conclusion reached by the majority of the Court of Criminal Appeal in thinking that the present is a case of issue estoppel. The question remains as to what order should be made once issue estoppel is put aside. This depends upon the proper application of the decision of this Court in Garrett's Case. That case makes it clear that the Crown may not challenge the ultimate result of the previous trial, namely, acquittal on the charge of abduction. The giving of full effect to the acquittal does not in my opinion require that evidence given at the previous trial must necessarily be excluded because it might, in the absence of explanation, suggest to the jury that the accused was guilty of an offence of which he had been acquitted. In this respect I agree with the views expressed by my brother Mason. I do not think that either Garrett's Case nor Sambasivam's Case (1950) AC 458 decided that the relevant evidence should have been rejected altogether. I respectfully agree that the requirements of res judicata in this sense are not inconsistent with the admission of the evidence so long as it is made clear to the jury that the prior acquittal cannot be challenged and that the evidence must not be taken as showing or proving guilt on the prior charge. In the present case the evidence of the events at the railway station is therefore admissible, but it must be explained to the jury that the evidence taken together cannot be treated as proving abduction, but that the jury may accept or reject the evidence as to individual facts according to their view of the witnesses who gave such evidence. (at p425)
18. It will in every case necessarily depend upon the particular circumstances whether such evidence may be given without the jury thinking that it is invited to overturn the previous acquittal. Where the evidence would involve a risk of prejudice which cannot be eliminated by a proper direction no doubt it should be rejected on general grounds. However in some cases at least the question will arise whether its rejection would tend to make the case unintelligible and to lead the jury into seeking some kind of an explanation for otherwise inexplicable events, which may be as likely to be prejudicial to the accused as to the prosecution. In such a case the evidence should be admitted and a proper explanation given to the jury as to the significance of the previous verdict. (at p425)
19. I agree with the views expressed by my brother Mason on this aspect of the case and upon the proper course to be taken with respect to the admission of the evidence of the prosecutrix as to the events at the railway station and with the nature of the direction that should be given to the jury with respect to such evidence. I also agree that the trial judge in the present case failed to give a sufficiently clear direction as to the effect of the acquittal of the accused on the charge of abduction and as to the manner in which the evidence as to the events at the railway station could be used. I cannot avoid feeling that some degree of artificiality is involved in this approach in the present case, because the transcript of the evidence given at the trial shows that the defence relied substantially upon the nature of the evidence given by the prosecutrix at the previous trial as a basis for suggesting to the jury that all her evidence should be rejected. It appears to be a reasonable inference that if the prosecution had said nothing about it and not led the evidence at all, it would have been brought out by the defence as a basis of discrediting the prosecutrix. It remains, however, clear that the direction given to the jury fell short of the requirement that it should be made clear that the accused must be regarded as not guilty of abduction. (at p425)
20. In the result therefore I agree with the order made by the Court of Criminal Appeal though for different reasons. The appeal should therefore be dismissed. (at p426)
# R
Storey \[1978\] HCA 39;
(1978) 140 CLR 364
(1977) 139 CLR 437
(1948) 77 CLR 511
(1951) 83 CLR 341
(1956) 96 CLR 62
(1921) 29 CLR 537
(1939) 62 CLR 464
(1956) 96 CLR 131
(1950) 81 CLR 446
(1973) 47 ALJR 519
(1955) 93 CLR 493
(1971) 1 SASR 219
(1921) 29 CLR 1
(1953) 88 CLR 1