Autrefois convict
23 The common law doctrines of autrefois convict and autrefois acquit are recognised in, but unchanged by, s 156 of the Criminal Procedure Act 1986. They may be stated succinctly for present purposes as providing that no person tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence: Wemyss v Hopkins (1875) LR 10 QB 378 at 381; Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131; Rex v Barron [1914] 2 KB 570 at 574; Saraswati v The Queen (1991) 172 CLR 1 at 13; Regina v Dodd (1991) 56 A Crim R 451 at 454, 455, 457.
24 The doctrines extend to the situation where the offence charged in the second indictment is an aggravated form of that charged in the first indictment - that is, where the evidence necessary to support the second indictment would have been sufficient to procure a conviction on the first indictment - but, as a plea of autrefois convict cannot in those circumstances assert that the accused had already been convicted of that offence, the plea in bar in such a case is described as one "in the nature of" or "analogous to" autrefois convict: Wemyss v Hopkins at 381; Regina v Dodd at 455.
25 The doctrine of autrefois acquit is analogous to issue estoppel; that of autrefois convict is analogous to abuse of process: Regina v Dodd at 454. Both are embedded in the maxim res judicata pro veritatem occipitur (the decision of a court of justice is assumed to be correct). However, the appropriate course when raising either autrefois issue is to enter a plea of autrefois acquit or autrefois convict (which is dealt with as a matter of right), rather than to apply for a stay of the proceedings (which is discretionary): Regina v Dodd at 457.
26 There have been many decisions of high authority as to the meaning of the word conviction in various contexts. The word is regarded as equivocal and it is accepted that its meaning must be gleaned from the context in which it is used; it was so described as long ago as 1844: Burgess v Boetefur (1844) 7 Man & G 481 [135 ER 193] at 504 [ER at 202]; and in many cases since - for example, R v Tonks [1963] VR 121 at 127-128; Della Patrona v DPP [No 2] (1995) 38 NSWLR 257 at 263-266; Maxwell v The Queen (1996) 184 CLR 501 at 507. See also Cobiac v Liddy (1969) 119 CLR 257 at 267, 271-273. There are two relevant meanings of "conviction" in the present context: (1) a finding of guilt by verdict or by acceptance of a plea of guilty, and (2) a final disposal of the case by a finding of guilt and the passing of sentence. In the second situation, it is said that the passing of the sentence perfects the conviction.
27 The first of those meanings of conviction was accepted by the High Court in Griffiths v The Queen (1977) 137 CLR 293. In that case, the appellant pleaded guilty to a number of break enter and steal offences. In order to determine whether the appellant could "keep out of crime" (albeit under the supervision of the Probation and Parole Service) for a period of twelve months, the judge remanded him for that period, and released him without imposing sentence. The Crown appealed against the remand as amounting to a "sentence" within the meaning of s 5D of the Criminal Appeal Act ("Appeals by Crown against sentence"). One step in determining that issue was whether there had been a conviction as a result of the course the judge took. It was held (1) that the accused had been convicted as a result of the course taken by the judge, but (2) that he had not been sentenced. No Crown appeal therefore lay against sentence. The High Court stated (at 301-304, 311, 317-319, 334-335) that an accused is convicted where he is found guilty by the jury or where he pleads guilty and the judge has taken some step which indicates an acceptance of that plea as establishing his guilt.
28 The second of those meanings was accepted by the Court of Appeal in Kopuz v District Court of NSW (1992) 28 NSWLR 232. That case concerned the privative clause in s 146 of the Justices Act 1902 ("No conviction or order of a Justice …, or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court"). The Court considered whether s 146 prevented the Supreme Court from entertaining an application for prerogative relief in the nature of certiorari based on procedural unfairness in the District Court during an appeal to that Court at the stage where the applicant for prerogative relief had been convicted on the appeal but not sentenced. The Court of Appeal held (at 242-243) that, as the applicant had not been sentenced in that case, s 146 did not prevent the grant of prerogative relief.
29 There was for a long time a conflict of authority as to whether it is the second of those meanings of conviction which must be established where autrefois convict is pleaded in bar to the later charge. That conflict is discussed by the Privy Council in Richards v The Queen [1993] AC 217 at 222-226. In that case, the accused was charged with murder, and his plea of guilty of manslaughter was accepted by the prosecutor with the approval of the trial judge. The judge stood the proceedings over for evidence in mitigation to be called. The Director of Public Prosecutions then discontinued the proceedings to enable the accused to be charged with murder again. He was convicted of murder and sentenced. The Privy Council dismissed his appeal.
30 In an earlier decision, four members of the House of Lords had left the issue open, although expressing a tentative preference for the second of the two meanings identified in par [27] supra (requiring a sentence as well as a conviction): S (an infant) v Recorder of Manchester [1971] AC 481 at 490, 497, 503. Lord Upjohn, however, had concluded (at 507) that the second of those meanings was required to support a plea of autrefois convict. In Richards v The Queen, the Privy Council agreed with Lord Upjohn, identifying (at 226) the underlying rationale of autrefois convict as being to prevent duplication of punishment, citing Wemyss v Hopkins at 381. The Privy Council thought that, unless the accused had been punished following his conviction on the first charge, it would be absurd that he should be able to plead that conviction as a bar to the second (at 226). It also said (at 226-227) that, because an accused who has pleaded guilty may withdraw that plea at any time before sentence is imposed with the approval of the court, there can be no finality in the acceptance of that plea as establishing guilt until sentence has been passed.
31 In Maxwell v The Queen, the Crown accepted a plea of guilty of manslaughter to a charge of murder on the basis of diminished responsibility. During the submissions on sentence, the judge came to the view, based on the psychiatric evidence tendered, that the Crown should not have accepted the plea and he thereupon rejected it. The issue on appeal was whether the judge had the power to reject the plea, which in turn depended on whether the appellant had been convicted at that time.
32 Dawson and McHugh JJ, in a joint judgment (at 507), approached that issue by considering whether a plea in the nature of autrefois convict would be available to the appellant in answer to the charge of murder if that charge were to proceed. They held (at 507-508) that, for the purposes of a plea of autrefois convict, a verdict or plea of guilty was insufficient to constitute a conviction, as the principle behind such a plea is that a person should not be punished more than once for the same matter. After discussing some of the older authorities which had been accepted in Griffiths v The Queen, Dawson and McHugh JJ said (at 509) that there was no conviction until there had been an acceptance of the plea of guilty amounting to a determination of guilt by the court, and that such a determination occurs when the court acts so as to indicate unequivocally its acceptance of the plea of guilty. However, they immediately went on to say (at 509) that a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused as he may be permitted to change his plea to not guilty at any time before sentence. They accepted (at 509) that a matter may be disposed of otherwise than by sentence, but said that an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. They finally quoted with approval (at 509-510) the following passage from the Privy Council's decision in Richards v The Queen (at 226-227):
The need for finality of adjudication by the court whose decision is relied on to found a plea of autrefois convict is even more clearly apparent where a defendant has pleaded guilty. Not only may the defendant be permitted, in the discretion of the court, to change that plea at any time before sentence, but, when a plea of guilty to a lesser offence than that charged has initially been accepted by the prosecutor with the approval of the court, there can, it appears to their Lordships, be no finality in that "acceptance" until sentence is passed.
33 Dawson and McHugh JJ accepted (at 510) that (in the absence of sentence) no conviction stood in the way of the judge rejecting the plea in that case, but held that the judge nevertheless had no power to reject the plea in the circumstances of that case. They explained (at 511) that, as the Crown had accepted the plea of manslaughter to the charge of murder, the accused had to be treated as if he had pleaded guilty to a charge of manslaughter. They said (at 513) that a court has no power to supervise the Crown's election to accept that plea, save to prevent an abuse of process, and (at 514) that a mere difference of opinion with the appropriateness of the Crown's acceptance could never give rise to an abuse of process. They denied (at 514) the existence of a trial judge's discretion to reject such a plea. Accordingly, they concluded (at 515) that the appeal should be allowed and the matter remitted to the Supreme Court for the accused to be sentenced.
34 Toohey J accepted (at 520) that, at common law, conviction encompasses a determination of guilt and does not necessarily require the imposition of a sentence. He said (at 521) that the remanding of an accused for sentence was an unequivocal indication that he had been found guilty. He held (at 522) that the Griffiths test (whether the acceptance of a plea of guilty determined guilt) applied where the issue is whether the court could reject the plea of guilty where it had been accepted by the Crown. At the same time, however, Toohey J also said (at 522) that the imposition of a sentence "may prove important where a plea of autrefois convict is in issue", a situation which he considered to be different to that under consideration in that appeal. He quoted with approval (at 526) the Privy Council's statement in Richards v The Queen that there can be no finality in the acceptance of a plea as establishing guilt until sentence has been passed. He held (at 522, 525) that, for the purpose of establishing whether the court had power to reject a plea of manslaughter (the issue on which he dissented), such a power existed where sentence had not been passed. He concluded (at 526) that the appeal should be dismissed.
35 Gaudron and Gummow JJ, in a joint judgment (at 529), referred to various Australian cases which considered what must be established in support of a plea of autrefois convict, and said that there had been no conclusive determination by the High Court of what was required. They said (at 530) that it appeared that the position in the United Kingdom was that there was no conviction until final adjudication by sentencing, citing Richards v The Queen, but commented that it would be unsatisfactory for submissions on sentence to have to be put before there had been a determination of guilt, particularly where the accused could be required to stand trial on a more serious charge than that to which he had pleaded guilty. They said (at 530) that such an approach was inconsistent with Griffith v The Queen, and they accepted (at 531) that the test formulated in that case (whether there had been a determination of guilt) was to be applied in determining whether the accused was convicted, by which time the judge has no power to reject a plea. They held (at 532) that no such determination had been made, and concluded (at 537) that the appeal should be allowed and the matter remitted to the Supreme Court for the accused to be sentenced.
36 So far as Maxwell v The Queen considered the requirements for a plea of autrefois convict to succeed in Australia, the result is as follows:
(1) Dawson and McHugh JJ were of the view that the accused must establish not only that he has already been convicted of the charge in the second indictment but also that he has been sentenced in relation to that conviction (pars [32]-[33] supra ).
(2) Gaudron and Gummow JJ were of the view that it is sufficient for the accused to establish that the acceptance of the plea of guilty to the earlier charge determined his guilt (par [35] supra ).
(3) Toohey J was of the view that, whilst it was sufficient to establish that the acceptance of the plea of guilty to the charge as determining guilt amounted to a conviction for the purpose of determining whether that plea of guilty could subsequently be rejected by the judge (the issue in Maxwell ), the imposition of a sentence in addition to that conviction may prove important where a plea of autrefois convict is in issue. In the context of whether the judge had power to reject the plea of guilty (on which issue he was in dissent), he quoted with approval the statement in Richards v The Queen that there can be no finality in the acceptance of a plea as establishing guilt until sentence has been passed (par [34] supra ).
The specific issue which then arises is whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, what that majority view is. I consider that issue later (at par [50] et seq infra ), together with the effect of Maxwell v The Queen on the plea in the nature of autrefois convict in the present case. Before that, there are other decisions to which reference should be made.
37 The High Court referred to the doctrine of autrefois convict in two cases after the decision of the Privy Council in Richards v The Queen, but neither was concerned with the determination of criminal liability (as are the doctrines of autrefois acquit and autrefois convict). These cases are mentioned only for the sake of completeness. The first was Rogers v The Queen (1994) 181 CLR 251, in which the High Court, by majority, held (at 255, 278-280) that it would be an abuse of process if the Crown were permitted to tender records of interview taken in the same circumstances and at the same time as records of interview rejected by the trial judge in an earlier trial of the same accused for different crimes on the basis that he had not been satisfied that the admissions made by the accused in those interviews had been made voluntarily. Although there were a number of references to a plea in bar of or in the nature of autrefois convict as a species of res judicata, there is no discussion of the requirements of such a plea, and the High Court did not find it necessary to refer to the decision in Richards v The Queen.
38 The second case was Pearce v The Queen (1998) 194 CLR 610, in which the High Court considered a number of issues arising under the rule against double jeopardy, including double prosecution by trial and double punishment in sentencing. It was held (at [40], [69]) that, where two different counts based on the same facts do not give rise to a plea in bar (for which all the elements of one offence must be wholly included in the other), the rule that a person should not be twice punished for what is substantially the same act means that he must not be punished twice in relation to those elements which are common to both counts. Although Gummow J referred in passing (at [55]) to the meaning of conviction in relation to pleas in bar as having been "considered" in Maxwell v The Queen, he did not suggest that there was in that case any determination by a majority of the Court as to what conviction meant in relation to a plea of or in the nature of autrefois convict. He said (at [57]) that those pleas were not determinative of the issues in the Pearce appeal. Again, the High Court did not find it necessary to refer to the decision in Richards v The Queen. These two cases take the Crown's argument no further in the present appeal.
39 This Court considered a plea of autrefois convict after all these decisions had been given, in Regina v Holton [2004] NSWCCA 214. Because of the different approach taken by each judge in reaching his conclusion in that case, the circumstances in which the appeal arose need some elaboration. The accused was charged with both murder and aggravated dangerous driving causing death, the latter charge pursuant to the now repealed s 52A(2) of the Crimes Act 1900 (and its associated section, s 52AA), which have been replaced by a new dangerous driving offence in the current ss 52A-52AA. The same facts were relied on by the Crown to establish both counts. The two counts were not pleaded in the alternative; if that had been the Crown's intention, an alternative count was unnecessary as s 52AA(4) provided that the jury may find the accused guilty of the offence under s 52A in answer to an indictment charging murder only. When arraigned on the indictment, the accused pleaded not guilty to the murder count, but guilty to the s 52A count. The judge before whom he was arraigned recorded that the accused was convicted of that charge, and he was remanded for sentence.
40 The then s 52AA(6) ("Double Jeopardy") provided:
This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who:
(a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or
(b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts.
The effect of the first sentence of that subsection is unclear, in that there appears to be nothing either in the subsection or in the section as a whole which could affect that liability unless the person was charged in the circumstances identified in either par (a) or par (b), but it is unnecessary to determine that issue in this appeal. Nor is it necessary in this appeal to determine how far s 52AA(6) goes beyond the common law doctrines of autrefois acquit and convict , as it is clearly a species of the same genus. In particular, it is unnecessary to consider whether murder would according to the common law constitute an aggravated form of dangerous driving causing death. The relevance of Regina v Holton to the present appeal is the approach which the Court took in the application of s 52AA(6) to the circumstances of that case.
41 Prior to the trial, the trial judge refused to quash the murder count, and he vacated the conviction recorded by the judge before whom the accused had been arraigned. These rulings were challenged in the subsequent appeal against conviction for murder. Each judge in this Court delivered a separate judgment. The appeal against the vacation of the guilty plea to the dangerous driving causing death could succeed only if it would give rise to a plea of autrefois convict to the murder count.
42 Grove J recognised (at [20]-[21]) that the meaning of conviction has to be determined by reference to the context in which it appears, and (at [30]) he referred to the judgment of Dawson and McHugh JJ in Maxwell v The Queen, and in particular to their statement (at 509):
Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. … It is the disposal of the case which results in the judgment of the court embodying a determination of guilt.
He would obviously also have taken into account the conclusion they reached in that case (in the context of determining whether a plea in the nature of autrefois convict would have succeeded if the appellant in Maxwell had had to answer the charge of murder) that, because there had been no sentence, there had been no conviction so that such a plea could not have succeeded (see pars [32]-[33] supra ). Grove J concluded (at [33]) that there had not been a conviction in the sense of the case having been finally disposed of by sentence or otherwise (at [33]), and that the plea of autrefois convict failed. He therefore appears to have adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen , and also of the Privy Council in Richards v The Queen .
43 Hulme J adopted (at [70] et seq) the formulation which he saw as having been accepted in Maxwell v The Queen - that there can be no conviction on a count to which an accused has pleaded guilty until by some act on the part of the court it has indicated a determination of the question of guilt. He said (at [74]) that he did not regard the statement by Dawson and McHugh JJ (at 509, paraphrased in par [32] supra) - that a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused - as departing from their earlier statement that any act indicating the court's unequivocal acceptance of a plea of guilty as a determination of guilt amounts to a conviction (at 509, also paraphrased in par [32] supra). He concluded (at [84]) that the acceptance of the plea by the judge who arraigned the accused indicated unequivocally his acceptance of that plea and that the accused was thereby convicted, and (at [88]) that there was nothing provisional in that acceptance. He did not refer to the conclusion Dawson and McHugh JJ reached in that case that, because there had been no sentence, there had been no conviction, and that a plea in the nature of autrefois convict therefore could not have succeeded.
44 Smart AJ (at [134]-[141]) discussed Richards v The Queen and the references to that decision in the judgments of Dawson and McHugh JJ and Gaudron and Gummow JJ in Maxwell v The Queen. He concluded (at [148]):
In the circumstances it is correct, following the remarks of Dawson and McHugh JJ in Maxwell , supra , to treat the acceptance of the plea of guilty to the offence of aggravated dangerous driving causing death as provisional only pending actual sentence, or some other disposal of that count.
Smart AJ has therefore adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen, and also of the Privy Council in Richards v The Queen.
45 The Crown relied on the decision in Regina v Holton as resolving the issue in its favour as to the requirements for a plea of autrefois convict to succeed. The respondent has submitted that Maxwell v The Queen dictates a different approach to that adopted in Holton, and that Maxwell should be interpreted as establishing that the acceptance of a plea as determining guilt was sufficient for a plea of autrefois convict to succeed. That submission, however, was based solely on the conclusion reached by Gaudron and Gummow JJ. Because of the conclusion reached by Grove J - in effect that a plea of autrefois convict would not succeed whichever approach was correct - it was unnecessary for him to identify whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen. He appears to have preferred the approach of Dawson and McHugh JJ, but his judgment is also open to the interpretation that he thought that there is no majority view in Maxwell on this issue. Similarly, Hulme J either thought that there is no majority view or, if there is one, that it was the approach of Gaudron and Gummow JJ. Smart AJ expressly adopted the approach of Dawson and McHugh JJ, but his judgment, too, is open to the interpretation that there is no majority view in Maxwell on this issue.
46 The decision in Regina v Holton does not, therefore, provide a satisfactory resolution to the issue raised in the present appeal. In the present case, it is essential to identify whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, what that majority view is. If the requirements are as stated by Gaudron and Gummow JJ in Maxwell v The Queen (see par [35] supra), they are satisfied in this case, as the magistrate remanded the respondent for sentencing, and his request for a pre-sentence report clearly demonstrated that he was accepting the respondent's plea of guilty as a determination of his guilt. This would be so even if the magistrate had intended to dismiss the charge without proceeding to conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, as that section requires the court to find the accused guilty before dismissing the charge. On the other hand, if the requirements are as stated by Dawson and McHugh JJ (see pars [32]-[33] supra), they are not satisfied in this case.
47 Before proceeding to determine whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, to identify what that majority view is, there is one further decision to which reference should be made. The decision in DPP v Collins [2004] VSCA 179 was given shortly after the decision in Regina v Holton. Collins was charged with, inter alia, trafficking in a drug of dependence (methylamphetamine) and possessing the same drug. The definition of "traffick" in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Victoria) includes, in relation to a drug of dependence, the possession of that drug for sale. When arraigned, Collins pleaded not guilty to the trafficking count, but guilty to the possession count. He went to trial on the trafficking count and was found guilty by the jury. He was sentenced on the trafficking count to a term of imprisonment and fined. On the possession charge, the judge adjourned the proceedings "without conviction" for twelve months, upon Collins entering into a bond. The Director of Public Prosecutions appealed against the sentence imposed on the trafficking count, and at the hearing of the appeal counsel for Collins raised for the first time the validity of the jury's verdict because, it was asserted, Collins had already been convicted on the possession count so that the prosecution of the trafficking count was barred (see [12]).
48 The Court of Appeal accepted (at [16]) that a conviction on that count could operate as a bar to the prosecution of the trafficking count (in accordance with Regina v Dodd), provided that the conviction on the possession count was recorded before the conviction on the trafficking count was recorded. It appears from the judgment of Winneke P that the judge indicated during the sentencing proceedings that he had not accepted the plea by Collins of guilty to the possession count as evidence of his guilt on that count, notwithstanding that by the time the sentencing took place Collins had already been convicted of trafficking based on that very possession. The Court of Appeal said (at [22]) that the course adopted by the judge in adjourning the sentencing on the possession count did not precede the conviction on the trafficking count, but in any event - following the approach of Dawson and McHugh JJ in Maxwell v The Queen and the decision of the Privy Council in Richards v The Queen - it held that finality was essential for a plea of autrefois convict and that there could be no finality until sentence was passed. No sentence had been passed on the possession count. The Court said (at [23]) that the course followed in relation to that count did not impact on the verdict of guilty of trafficking (and thus the conviction), nor did it nullify the verdict or the conviction on that count. The Court of Appeal did make it clear (at [24]-[25]) that the procedure followed by the trial judge was erroneous, and that in such circumstances the plea of guilty to the possession count should have remained on the file to be acted on only in the event that Collins had not been convicted on the trafficking count. Such is the procedure adopted in New South Wales.
49 The Victorian Court of Appeal in DPP v Collins therefore adopted the approach of Dawson and McHugh JJ in Maxwell v The Queen, and also of the Privy Council in Richards v The Queen. They did not refer to any possible uncertainty as to whether the approach of Dawson and McHugh JJ constituted the majority view in Maxwell v The Queen. The only reference to the judgments of Gaudron and Gummow JJ or of Toohey J is to be found in the brief judgment of Ormiston JA (at [30]), who (with Warren CJ) agreed with the judgment of Winneke P, when he was dealing with a different issue in that appeal. That judgment does not therefore assist in determining whether a majority view of the requirements for a plea of autrefois convict in Australian law exists in Maxwell v The Queen and, if so, what that majority view is. I now undertake that task.
50 There are two diametrically opposed views expressed in the joint judgments in Maxwell v The Queen. Dawson and McHugh JJ were of the view that an accused must establish not only that he has already been convicted of the charge, but also that he has been sentenced in relation to that conviction. That view was stated as to the meaning of conviction in the context of a plea of autrefois convict, and it is thus directly relevant to the issue which arises in the present appeal. This conclusion as to the meaning of conviction in that context was, however, strictly unnecessary for their determination that the appeal should be allowed. Their decision that in the absence of a sentence there had not been a conviction in that case (so that a plea of autrefois convict would not have succeeded) was accompanied by rulings that (1) in any event, the judge in that case had no power to reject the manslaughter plea in the absence of some abuse of process, and (2) that a difference of opinion as to whether it was appropriate for the Crown to have accepted the plea did not constitute such an abuse. Those two rulings were sufficient for the appeal to have been upheld, without reference to the availability of a plea of autrefois convict. They did not consider whether there was any difference in the meaning of conviction in the context of whether a plea of guilty may be rejected by a judge in the absence of some abuse of process.
51 The contrary view of Gaudron and Gummow JJ was that it is sufficient for an accused to establish that the acceptance of the plea of guilty to the earlier charge determined his guilt. That conclusion was necessary for their conclusion that the appeal should be allowed. It was stated in relation to the meaning of conviction in the context of whether a plea of guilty to a charge may be rejected by a judge in the absence of some abuse of process. They rejected the requirement of a sentence as well as a conviction in that context and they commented that not only was it inconsistent with the decision in Griffith v The Queen, but - depending on whether they saw the two contexts as being the same (which is unclear) - their criticisms of the decision of the Privy Council in Richards v The Queen may be interpreted as rejecting it in the context of autrefois convict as well. Their reasoning did not require them to consider whether a plea of autrefois convict would have been available to the appellant in answer to the charge of murder if that charge were to proceed.
52 Toohey J agreed with Gaudron and Gummow JJ as to the meaning of conviction in the context of whether a plea of guilty to a charge may be rejected by a judge in the absence of some abuse of process. In discussing how the meaning of the word conviction differs according to the context in which it is used, Toohey J said (at 522) that the absence of sentence "may prove important when a plea of autrefois convict is in issue but not when the question is whether a person has been 'convicted on indictment' for the purposes of an appeal under s 5 of the Criminal Appeal Act." That was the issue in Maxwell.
53 One possible interpretation of the decision in Maxwell v The Queen is that it demonstrates an acceptance by a majority of the High Court (Dawson, Toohey and McHugh JJ) that the decision by the Privy Council in Richards v The Queen correctly stated that there must be both a conviction and a sentence before a plea of autrefois convict can succeed. The fact that none of these three judges necessarily relied on the views which were (or which may have been) expressed to this effect as the basis of his decision in that case does not prevent such an opinion having great weight, even though it is obiter. The problem with such an interpretation, however, is that the apparent acceptance by Toohey J of the need for a sentence as well as a conviction was introduced by the cautionary word "may" - that the absence of a sentence "may prove to be important" when considering the meaning of conviction in the context of a plea of autrefois convict.
54 I would prefer to say that Maxwell v The Queen does not provide a sufficiently specific acceptance of Richards v The Queen by a majority of the Court so as to apply that decision to the plea in bar in the nature of autrefois convict in the present case. A more definitive statement by the High Court is required before it can safely be said that that Court has held that there must be both conviction and sentence before such a plea can succeed.
55 At the intermediate appellant level, however, there is the apparent adoption by Grove J and the express adoption by Smart AJ in Regina v Holton - together with the unanimous adoption by the Victorian Court of Appeal in DPP v Collins - of the approach of Dawson and McHugh JJ in Maxwell v The Queen and of the decision of the Privy Council in Richards v The Queen.
56 The decision in Richards v The Queen and those judgments which have adopted that approach are persuasive. It has been held ever since 1875 (in Wemyss v Hopkins) that the underlying rationale of the plea of autrefois convict is to prevent duplication of punishment. In that case, all three judges of the Court of Queen's Bench referred (at 381-382) to the requirement that the plea can succeed only if the accused has already been punished. Except for the erroneous departure from orthodoxy perpetrated by Rex v Sheraton [1937] 1 KB 223 and the cases which followed that decision for over fifty years (see Richards v The Queen at 224-225), there is no reasoned authority which has permitted a plea of autrefois convict unless the accused was not only convicted but also sentenced. The context of avoiding double punishment in which the meaning of conviction has to be determined for the purposes of a plea of autrefois convict is clearly different from the contexts of the power of a judge to reject a plea of guilty, of sentencing on different charges relating to substantially the same act or of appeals against sentence.
57 In my opinion, the word conviction as used in the context of autrefois convict requires both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) to be established by the accused. The definitions are those of Lord Reid in S (an infant) v Recorder of Manchester (at 489). In the absence of sentence, the plea in bar must fail. In these circumstances, the plea entered by the respondent in the present case was not a good plea, and there is no need to consider any further the state of the record in the District Court to which the Crown had objected for the first time in this appeal (see pars [18]-[21] supra).