The Queen v Carroll

The Queen v Carroll - [2002] HCA 55 - HCA 2002 case summary — Zoe

[9]

GLEESON CJ AND HAYNE J. In 1985, the respondent gave evidence on oath, at his trial for the murder of Deidre Maree Kennedy, denying that he had killed her. Despite his denial, the jury returned a verdict of guilty. On appeal, the Court of Criminal Appeal of Queensland concluded that, on the evidence led at trial, it was not open to a properly instructed jury to conclude beyond reasonable doubt that the respondent was guilty. Accordingly, the Court ordered that the conviction be quashed and directed that a verdict of acquittal be entered[1].
More than 14 years after the respondent's trial for murder, he was indicted for perjury[2]. He was charged that "in a judicial proceeding [namely, his trial for murder, he] knowingly gave false testimony to the effect that he … did not kill … Deidre Kennedy, and the false testimony touched a matter which was material to a question then depending in [his trial for murder]". On his trial for perjury, the jury returned a verdict of guilty. On appeal to the Court of Appeal of Queensland, that Court concluded that the trial should have been stayed as an abuse of process and that, in any event, the verdict returned by the jury was unsafe and unsatisfactory[3]. The Court ordered that the respondent's conviction for perjury be quashed and a verdict of acquittal be entered.
The prosecution seeks special leave to appeal from those orders, seeking to contend that, contrary to the conclusion of the Court of Appeal, the trial for perjury should not have been stayed as an abuse of process and the verdict returned by the jury was not unsafe or unsatisfactory. Argument of the application for special leave was confined, in the first instance, to argument of the issue whether the respondent could or should have been prosecuted or tried for perjury.
After the indictment for perjury had been presented against the respondent, but before he was arraigned, he made application under s 592A of the Criminal Code (Q) ("the Code") seeking, among other things, a direction or ruling in relation to the quashing or staying of the indictment[4]. The primary judge (Muir J) recorded[5] the respondent's submission in this respect as being that "where an accused person was acquitted of a criminal charge, the principles of res judicata or autrefois acquit prevented that person from being tried again in respect of the facts which constituted the offence [and that] [t]he offence of perjury … did not provide an exception to this rule, except where the accused person's evidence secured or may have secured the acquittal." The primary judge concluded that[6] the doctrines of autrefois acquit and res judicata did not prevent the bringing of the perjury charge laid against the respondent and that[7] the trial should not be stayed.
The respondent pleaded not guilty, stood his trial, and the jury returned a verdict of guilty of perjury. The respondent was not arraigned, and therefore was not called on to plead, until after the primary judge had ruled that the doctrines of autrefois acquit and res judicata did not prevent the bringing of the perjury charge against the respondent. The only plea the respondent made was, therefore, a plea of not guilty; he did not enter a plea in bar and did not demur to the indictment.
Under the Code the respondent had no available plea in bar to the indictment for perjury and, as we have said, he made no plea other than a plea of not guilty. Rather, the question was treated in the Court of Appeal, and in the application to this Court, as being whether there were grounds for the exercise of a discretion to stay his trial on the charge of perjury, as an abuse of process. This was said to depend upon a principle that the acquittal for murder was incontrovertible. The similarity of the evidence to be called and the factual inquiry to be made on the trial of the indictment for perjury to the evidence called and factual inquiry made on his trial for murder was said to reveal that the trial of the charge of perjury would controvert the acquittal for murder.

[18]

Sections 16 and 17 of the Code are drawn in terms more apt to deal with less complicated cases of possible intersection between offences than sometimes are now encountered. The complexity of criminal legislation, and the problems of double jeopardy to which it can give rise, are sufficiently exemplified by reference to various forms of statutory drug offences in which, for example, there may be separate offences of possessing prohibited drugs and supplying prohibited drugs, but the offence of supplying prohibited drugs can be constituted by having goods in possession for the purpose of supply[13]. The provisions of s 17 of the Code do not readily lend themselves to circumstances in which, for example, a person is acquitted of the offence of supplying drugs (where the allegation was that the offender had drugs in possession with intent to supply) and is then charged with possession of the drugs.
Section 17, in terms, deals with two kinds of case. First, where an accused has been tried on an indictment on which the accused might have been convicted of the offence later charged, the accused will have a defence to that later charge. Chapter 61 of the Code (ss 575‑589) identifies the alternative offences of which an accused may be convicted upon an indictment. The second kind of case with which s 17 deals may be seen as the converse of the first: where the second indictment preferred against an accused is such that, on that indictment, the accused might be convicted of an offence of which he or she has already been acquitted or convicted.
Neither limb of s 17 had application in the present case. On the respondent's trial for murder, perjury was not a verdict open to the jury. On his trial for perjury, murder was not a verdict open to the jury.
Section 598 of the Code prescribes what is to be done if the accused person does not apply to quash the indictment or move for a separate trial of one or more counts on it. The accused "must either plead to [the indictment], or demur to it on the ground that it does not disclose any offence cognisable by the court"[14]. Seven forms of plea are specified. The section provides that two or more pleas may be pleaded together except that the plea of guilty may not be pleaded with any other plea to the same charge[15]. Of the seven forms of plea for which s 598(2) provides, only those provided in pars (d) and (e), to the extent that each is premised upon an earlier acquittal, need be considered.
For the same reason that s 17 had no application in this matter, s 598(2)(d) of the Code could not have been engaged. It provides that one of the pleas available to an accused is that: "the person has already been acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment of an offence of which the person might be convicted upon the indictment". As has already been pointed out, on the respondent's trial for murder, perjury was not an available verdict and murder was not a verdict available on his trial for perjury.
Section 598(2)(e) provides that one of the pleas available to an accused person is: "that the person has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that the person cannot under the provisions of this Code be tried for the offence charged in the indictment". The juxtaposition of this provision with s 598(2)(d) reveals that s 17 of the Code is not to be understood as describing exhaustively the circumstances in which a plea in bar is available. Such a plea may also be made if the accused, having already been tried and convicted or acquitted of one offence, "committed or alleged to be committed under such circumstances that the person cannot under the provisions of this Code be tried" for the offence charged in the later indictment.
It may be that s 598(2)(e) has operation only in cases where s 16 of the Code applies. That is, it may be that (unless the exception for cases where death is caused by the act or omission in question applies) s 598(2)(e) is engaged only where the accused would be twice punished for the same act or omission. That is not this case and the contrary was not suggested. No doubt this was because the acts which founded the charge of murder differed markedly from the act of allegedly false swearing which founded the charge of perjury.
Whether or not s 598(2)(e) is to be read as confined in its operation to cases to which s 16 applies, not only is it plain that s 16 was not engaged in this case, no other provision of the Code was suggested to provide that the murder with which the respondent had been charged was committed, or was alleged to be committed, under such circumstances that he could not under the provisions of the Code later be tried for perjury.
That being so, neither par (d) nor (e) of s 598(2) applied and the respondent had no plea in bar available under the Code.
As has been pointed out earlier, although the respondent's submissions to the primary judge were cast in terms apt to invoke a plea in bar ("principles of res judicata or autrefois acquit") the argument in the Court of Appeal, and in this Court, proceeded as if there had been an application for the exercise of a discretion to stay the proceeding as an abuse of process. The conclusion that there was no available plea in bar focuses attention upon why, that being so, the trial of the perjury charges should be stayed. What is it that constitutes the alleged abuse of process?
The answer proffered by the respondent to these questions is that having been acquitted of murder he should not now face a charge that he lied on oath when he denied killing Deidre Kennedy. The effect of trying him for the alleged perjury is, so it was submitted, to try again the issue which was central to his trial for murder and to controvert the verdict of acquittal entered after the trial and appeal. To understand the basis for the respondent's contention that the Court of Appeal is not shown to have erred in concluding that the trial for perjury should be stayed, it is necessary to refer to some fundamental considerations.

[21]

It is, nonetheless, important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.
Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error.
Until very recently it has been accepted as a basal tenet of the law that no person who has been acquitted of an offence should be required to stand trial again for the same offence[19]. That is not what was done in the present case. The respondent, having been acquitted of the charge of murder, was not indicted again on that charge. Nonetheless, some, but not all, of the facts which it would be necessary to prove to establish the charge of perjury brought against the respondent were facts which, together with other facts, constituted the elements of the offence of murder of which he had been acquitted. Common to both charges was the prosecution's allegation that the respondent had killed Deidre Kennedy. To establish the charge of murder other facts (particularly the intention with which the killing occurred) had to be established and those other facts were not at issue at the perjury trial. On the perjury trial the prosecution had to demonstrate that the respondent had given sworn evidence that he did not kill Deidre Kennedy and, of course, that formed no part of the proofs the prosecution had to make on the murder trial. What the prosecution had to prove at each trial was, therefore, not identical.
Nonetheless, the factual inquiries made at the two trials, in the end, came to focus upon the same issue - did the respondent kill Deidre Kennedy? At his trial for murder, the issue which was fought was whether it was the respondent who had killed her. The trial was conducted on the footing that there had been a murder. On his trial for perjury there appears to have been no controversy about the fact that the respondent had sworn that he had not killed Deidre Kennedy; again, the focus of factual inquiry was, did he kill her? In the course of argument in the Court of Appeal the prosecutor expressly acknowledged that the perjury case was conducted, in practical effect, as a re‑trial for murder.
The trend of authority in other common law jurisdictions may appear to favour the conclusion that a prosecution for perjury may proceed where the perjury alleged is that in a previous criminal trial the accused swore that he or she was not guilty of the offence then charged against him or her[20]. Certainly there are statements to be found in those cases which would support that view.
What principle or principles are engaged in such cases? It is necessary to begin consideration of them by recognising that they consider two fundamentally different issues. In many cases[21] the question has been whether evidence of what are alleged to be the accused's earlier crimes (for which the accused has stood trial and of which he or she has been acquitted) may be led as similar fact evidence in a later trial for a different offence. There the issue is not whether there can be a trial of the charge preferred in the later indictment but what evidence may be led in proof of that charge. Of the cases we have mentioned, it is only in H M Advocate v Cairns[22], R v Humphrys[23], R v Moore[24] and Grdic v The Queen[25] that the issues presented by a subsequent charge of perjury or perverting the course of justice have been considered directly.

[22]

Discussion of the issues which arise has often proceeded by reference to principles of preclusion. Indeed, in Grdic the issue was framed in those terms. It was said[26] that the issue was "the availability of the defence of issue estoppel per rem judicatam on a charge of perjury". Framing the issue in terms of preclusion has led to consideration of the applicability of exceptions to rules of preclusion in cases where judgment has been obtained by fraud[27]: "an extrinsic, collateral act; which vitiates the most solemn proceedings of courts of justice"[28].
Analysing the issues in this way presents no little difficulty. As Gummow J pointed out in Pearce[29], a starting point for a doctrinal consideration of the pleas of autrefois acquit and autrefois convict is recognition of the distinction between those pleas referred to by Spencer Bower, Turner and Handley in The Doctrine of Res Judicata[30]. Autrefois acquit is a species of estoppel by which the prosecution is precluded from reasserting the guilt of an accused when that question has previously been determined against it, whereas autrefois convict is the application to criminal proceedings of the maxim transit in rem judicatam and is akin to merger.
Although often seen as different sides of the same coin, as Deane and Gaudron JJ pointed out in Rogers v The Queen[31], autrefois acquit and autrefois convict reflect quite different considerations. Indeed, that must be so when it is recalled that a jury's finding of guilt depends upon the jury being satisfied beyond reasonable doubt that all elements of the charged offence have been proved, whereas the jury that entertains a reasonable doubt about any one of the elements of the offence is bound to acquit. Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial. Moreover, to invoke the application of principles developed in the civil law where a judgment is procured by fraud must confront the difficulty that a jury's verdict of acquittal provides no clue to why the jury was not satisfied beyond reasonable doubt of the accused's guilt. For all that is known, the verdict of acquittal may be entirely unrelated to any evidence that the accused gave, or procured to be given, at trial and if that is so, it is not easy to say that the judgment has been obtained by fraud.
What is precluded? In Grdic, the majority of the Supreme Court of Canada, having identified the question as one of preclusion, formulated[32] a principle which directed attention to the evidence that had been called on the trial of the first offence and the evidence which it was intended to lead on the trial for perjury. The majority held that, if the same evidence were to be tendered, the prosecution would be estopped from pursuing the charge of perjury. Similarly, the prosecution would be estopped if it were to seek to call only evidence that was available to be called at the first trial[33]. Thus, to put the matter positively, the majority held that the prosecution would be estopped from pursuing the perjury charge unless it sought to tender, in addition to or in lieu of the evidence previously adduced, evidence that was not at the time of the first trial available by the exercise of reasonable diligence[34].
The formulation of such a rule reveals the difficulties that inhere in analysing the matter by reference to principles of issue estoppel or obtaining a judgment by fraud. The test formulated does not depend upon identification of issues of fact or law; the test depends upon the nature of the evidence to be adduced at the second trial. A test of this latter kind will, in the end, call for an assessment by the judge in the second trial, the trial for perjury, of the strength of the case which is to be made against the accused. That is, it will become a test which asks, in effect, how clear is it that the accused gave perjured evidence at the first trial? Yet that is a matter which should be for the jury. And more importantly than that, if the underlying principle is that the first conviction should not be controverted, it is a test that directs attention away from whether the prosecution for perjury does seek to controvert the decision in the earlier case; it directs attention to whether the second case is a new and good case.

[24]

Analysis by reference to rules of preclusion does not lead to the conclusion that the respondent cannot be prosecuted for perjury. Indeed, the premise for invoking the court's discretion to stay the prosecution for perjury appears to be an acceptance by the respondent that the prosecution was not precluded. Rather, the application for stay is to be understood as being based on what was said in Rogers[35] to be "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct". It is this, rather than now rejected notions of the applicability in criminal cases of the principles of issue estoppel[36], which was said to warrant staying the prosecution of the respondent for perjury. Attention must first be directed to the ambit and effect of the proposition that the verdict of acquittal at the first trial is to be treated as incontrovertibly correct. Only then will it emerge whether it is necessary to consider the nature or quality of the evidence that it is sought to adduce on the second trial, in this case, for perjury.
On its face the principle stated in Rogers appears closely related to principles of preclusion. The reference to incontrovertibility makes that plain. On examination, however, the principle may be thought to find its origins in rather broader and less precise notions than those which have been developed in the rules of preclusion. First, the principle is said to apply because issue estoppel has no place in the criminal law[37]. Secondly, it takes the form it does because autrefois acquit, although analogous to and founded in the same principles as issue estoppel, has a different and further operation than issue estoppel would have[38].
The principle is stated in various ways. In Garrett v The Queen, Barwick CJ, with whose reasons Stephen, Mason and Jacobs JJ agreed, described[39] it as being 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" (emphasis added). Reference to calling in question and tending to overturn give the principle great width: wider than may be thought to have been stated by the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya[40], a case often referred to in this connection.
In Connelly v Director of Public Prosecutions[41] Lord Pearce said:

[26]

His Lordship was speaking in a context in which the reference to a discretion was related to the inherent jurisdiction of a court to prevent oppression and abuse of process. By hypothesis, in a case of the kind his Lordship had in contemplation, the laying of a charge would constitute oppression and abuse of process, when viewed in the light of the considerations of double jeopardy which underlie a plea of autrefois acquit, even though such a plea is not available.
There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.
The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child.
In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent's sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible.
The prosecuting authorities considered that they had available to them further evidence which became available only after the first trial, and which, so it was argued, strengthened the case that the respondent had murdered Deidre Kennedy. Much of the reasoning of the Court of Appeal was addressed to an examination of the strength and cogency of the new evidence. In this respect the Court was strongly influenced by the reasoning in Humphrys where the evidence at a later perjury trial was substantially identical with the evidence given at the first trial, and a case where new and cogent evidence of guilt had emerged.
The Court of Appeal concluded that the further evidence adduced at the perjury trial was deficient and unsatisfactory, and that it added little to the original evidence, but it considered that examining the strength and cogency of the new evidence was crucial to the exercise of the discretion to stay the proceeding. In that respect, the reasoning of the Court of Appeal was unduly favourable to the prosecution. The inconsistency between the charge of perjury and the acquittal of murder was direct and plain. The laying of the charge of perjury, solely on the basis of the respondent's sworn denial of guilt, for the evident purpose of establishing his guilt of murder, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available.
The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial. (Hence the decisions about what standard of proof is to be applied in civil cases in which a crime is alleged[42].)
In Rogers, a majority of the Court held that for the prosecution to tender in evidence at a later trial records of interview which had been held inadmissible in an earlier prosecution for other offences would constitute a direct challenge to the earlier determination of admissibility - a determination which, if not final when made on the voir dire, became final once verdicts of acquittal were returned[43]. That being so, the majority held that the tender would be an abuse of process. In Rogers, there had been a finding by the trial judge in the first trial that the records of interview were not made voluntarily. There was, therefore, a positive finding to which it could be said that effect should be given. The abuse of process identified by the majority could, therefore, be said to lie in the prosecution seeking to relitigate that finding and have the trial judge at the second trial conclude that the record of interview was not shown to have been made involuntarily.
Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various[44]. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.
To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings[45] and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.
To pursue what is thought to be the objectively correct outcome of criminal proceedings is inconsistent with finality. As the Law Commission of England and Wales recognised in its report on Double Jeopardy and Prosecution Appeals[46], finality is a value which finds its roots in personal autonomy, and which serves to delineate the proper ambit of the power of the State by the State acknowledging[47] "that it respects the principle of limited government and the liberty of the subject".
Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z[48], R v Arp[49] and R v Degnan[50] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.

[38]

One circumstance alleged to enliven the discretion to stay the indictment as an abuse of process was that "the prosecution [was] ill‑founded as it contravene[d] the doctrines of res judicata or autrefois acquit"[59]. On 6 September 2000, Muir J dismissed the application for a stay and declined to exclude any of the challenged evidence. His Honour rejected the contention that the doctrines of autrefois acquit or res judicata prevented the laying of the charge of perjury and decided that the evidence the Crown proposed to adduce was sufficiently different to and stronger than that presented at the murder trial, and therefore that there was no abuse of process[60].
The matter proceeded to trial and, on 3 November 2000, the jury returned a verdict of guilty in respect of the perjury charge. The respondent appealed against that conviction to the Court of Appeal under s 668D of the Criminal Code on the ground that the trial judge should have stayed the prosecution as an abuse of process on all or any of several bases. The respondent's Notice of Appeal identified the alleged abuse of process by reference to various circumstances including his earlier acquittal for murder, the trial judge's failure to exclude certain evidence and what was said to be the unsafe and unsatisfactory verdict returned by the jury. The respondent's appeal to the Court of Appeal thus put in issue both the pre‑trial rulings of Muir J and the verdict of the jury. The former were susceptible to challenge on appeal by force of s 592A(4) of the Criminal Code, which provides that a direction or ruling under s 592A "must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence". That provision reflects the proposition that, in general, an interlocutory order which affects the final result can be challenged in an appeal against the final judgment[61].
The judgment of the Court of Appeal was delivered by Williams JA, with whom McMurdo P and Holmes J agreed. Williams JA analysed the evidence tendered at the perjury trial and concluded that the trial should have been stayed as an abuse of process, because the "principle of double jeopardy" had been "substantially breached"[62]. His Honour also expressed the view that, when the evidence was considered as a whole, the verdict returned by the jury was "unsafe and unsatisfactory", and that, on either ground, the verdict should be set aside and an acquittal entered[63].

[42]

As indicated earlier in these reasons, s 592A of the Criminal Code empowers the Supreme Court of Queensland, where the Crown has presented an indictment before it, to give pre‑trial directions and rulings, including "in relation to … the … staying of the indictment". There is no express power to stay an indictment to prevent an abuse of process. However, s 7 of the Supreme Court of Queensland Act 1991 (Q) continued in existence that Court as formerly established as "the superior court of record in Queensland" and s 8(1) conferred "all jurisdiction that is necessary for the administration of justice in Queensland"[67]. These are words of wide reach[68]. They bring with them, in aid of the effective exercise of that jurisdiction, the power of a superior court to prevent abuse of its procedure[69] and, in that regard, to stay indictments[70].
This power is drawn by implication from the constitutive statutory authority of the Supreme Court. It perhaps qualifies, or more likely complements, the statement by Windeyer J in Timbu Kolian v The Queen[71] that the provisions of the Criminal Code provide "the exclusive source of the law in all indictable offences, with only the exceptions which the [Criminal Code] specifies".
The applicant correctly eschews any argument that the Criminal Code is the exclusive source of the grounds upon which an indictment may be stayed. Notwithstanding that the statutory pleas in s 598(2) are more narrowly drawn than what at any rate are now understood to be the common law doctrines, the stay application was correctly approached on the footing that it was to those doctrines, supplemented by other relevant statutory provisions, that regard was to be had.
The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing[72].
The immediate question whether special leave should be granted thus turns on whether sufficient doubt attends the decision of the Court of Appeal that, in declining to stay the perjury indictment for abuse of process, Muir J acted upon a wrong principle.

[60]

In Australia, "double jeopardy" is not an independent doctrine of avoidance, which, for example, would found a demurrer to a count or a stay application[92]. The law's aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events reflects a broader precept or value. This finds diverse application through doctrines of estoppel and merger[93], in the pleas of autrefois acquit and autrefois convict[94], and in principles respecting abuse of process[95], the admissibility of evidence[96], and sentencing[97]. In some instances, as here, the precept finds expression in principles of statutory construction. An illustration is the settled rule that a general statutory provision should not ordinarily be construed as conferring or extending a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language[98].
If it be accepted that on occasion, and despite directions as to the onus of proof, juries return guilty verdicts which are ill founded, that possibility must increase with successive trials. Particular considerations arise where the "double jeopardy" is said to lie in a subsequent prosecution for perjury in respect of statements made by the accused in evidence in earlier criminal proceedings.
The interests at stake in a case such as the present were discussed in Rogers v The Queen[99] and in Pearce v The Queen[100]. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive[101]. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct[102]. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute[103]. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause[104]. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature[105].
There is competition between (i) securing truthful testimony, and hence protecting the integrity of the judicial process and public perceptions thereof and (ii) preventing successive criminal prosecutions in respect of what in substance may be the same elements of an offence for which an individual earlier has been acquitted. That competition is capable of legislative resolution in different ways and with various exceptions and qualifications detailed by statute[106]. So much is illustrated by the recent and divergent recommendations of the Law Commission of England and Wales[107] and the Law Commission of New Zealand[108].
This case concerns the interrelation between the common law and s 123 of the Criminal Code. The preferred resolution of any conflict or clash between them should acknowledge the capacity of the legal system to protect by means other than perjury prosecutions public perceptions of the integrity of the judicial process. For example, proceedings for contempt may lie against a defendant who publicly boasts of success in securing an earlier acquittal by perjured testimony[109].
In Canada, issue estoppel may constitute a defence to a charge of perjury in respect of evidence given at an earlier trial, unless there is additional evidence which was not available to the Crown using reasonable diligence at the time of the first trial[110]. Similarly, the authorities in the United States dealing with the circumstances in which a prior acquittal bars a subsequent conviction for perjury which would contradict or undermine the prior verdict have turned on the application of "collateral estoppel" or "issue preclusion"[111]. Those doctrines may operate to preclude prosecutions which fall beyond the ambit of the Fifth Amendment prohibition on subjecting any person "for the same offence" to be twice put in jeopardy of life or limb[112].
Rogers v The Queen[113] decided that in Australia the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. That holding, which no party to the present application sought to challenge, reflects the state of the law in the United Kingdom since the decision of the House of Lords in R v Humphrys[114], and that in New Zealand since the decision of the Court of Appeal in R v Davis[115].
Notwithstanding the inapplicability of the civil doctrine of issue estoppel in Australian criminal law, the common law of this country has sought to protect defendants acquitted of an offence from retrial for a subsequent offence where (i) the elements of the two offences are identical or (ii) the elements of one offence are wholly included in the other. Pearce v The Queen[116] determined that that degree of coincidence between the elements of the two offences will ground a plea of autrefois acquit at common law. Again, this Court held in Rogers[117] that the tender of evidence of admissions which had been found in a prior trial not to have been made voluntarily would challenge directly that prior judicial determination, which had become final once verdicts were returned, and, on that basis, would constitute an abuse of process. Similarly, in Garrett v The Queen[118], evidence of a previous charge of rape of the prosecutrix, for which the accused had been acquitted, was held by this Court to have been inadmissible in a later trial of the accused in which he was convicted of rape and abduction in respect of different allegations involving the same complainant. The evidence was said by this Court to be inadmissible because it "inevitably challenged the verdict of acquittal"[119]. The Court allowed an appeal against the later convictions and ordered a new trial.
However, in R v Storey[120], Stephen, Mason, Jacobs and Aickin JJ held that relevant evidence tending to show that the accused was guilty of an offence of which the accused had been acquitted may be admitted, but only if the jury can be and is directed not to interpret it in such a way as to deny the acquittal. In Storey, the two accused had been acquitted on a charge of forcible abduction; at their subsequent trial for rape, evidence was admitted which tended to show the forcible abduction of the victim, but without it being made clear to the jury that the evidence must not be taken as proving guilt on the previous charge. This Court dismissed the Crown appeal against the quashing of the conviction.
We agree with the remarks of the Chief Justice and Hayne J in the present case respecting the decisions in Rogers and Garrett. Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition.
So‑called "similar fact" evidence gives rise to difficulties which it is unnecessary here to consider. However, it may be noted that the House of Lords and the New Zealand Court of Appeal respectively have held that similar fact evidence is not rendered inadmissible (i) merely because it shows or tends to show that the defendant was guilty of an offence of which that person has been acquitted[121], or (ii) "by reason of the fact that a previous trial based on that evidence has resulted in an acquittal or a stay of proceedings"[122].

[71]

The general provisions of the Queensland legislation should not be construed as exposing defendants who are acquitted after exercising their statutory right to testify in their behalf to a subsequent prosecution for perjury in respect of their denial on oath of guilt on the first charge. A construction of s 123 of the Criminal Code which allowed that prosecution would abrogate the freedom of the individual from subsequent criminal prosecution respecting his or her ultimate culpability for an offence of which that person has been acquitted. Legislation having that result would require expression in unambiguous language or be compelled by necessary implication.
The reference above to denial of guilt requires further attention. The offence in respect of which there was an acquittal may comprise various elements presenting the ultimate issue for the jury's determination. More or less evidence (and inference invited from primary evidence) may have been tendered on one or more of those elements or the ultimate issue. Only some of those issues may remain alive and in contest when cases are closed. It is in respect of those live elements and the ultimate issue that what is said above applies. In the present case the only element that was alive in the murder trial was whether the respondent had killed the deceased.
In those circumstances, the subsequent perjury charge seeks to impeach the earlier acquittal. Any subsequent perjury charge may be said to some degree to vex twice the accused. But, as the United States cases dealing with the constitutional protection illustrate, the basic notion of "the same offence" suggests some close relationship between the charge the subject of the acquittal and that of perjury.
The present case provides one example. The constituent elements of the crime of murder under the Criminal Code may compendiously be stated as the "unlawful killing" of another under any of the circumstances detailed in s 302(1). That telescopes a number of elements identified by the process of statutory analysis recently undertaken in Murray v The Queen[126].
The text of the present indictment itself discloses that what was here sought to be impugned or controverted was the prior acquittal for murder. The indictment pleaded the falsity of the respondent's "testimony to the effect that he, RAYMOND JOHN CARROLL did not kill the said DEIDRE KENNEDY". That testimony necessarily was central to the earlier trial. The only issue in contest was the identity of the killer. For example, there was no issue in the murder trial respecting the mens rea of the killer; the respondent maintained simply that he did not kill Deidre Kennedy. His statement on oath to that effect was therefore but an assertion of his defence, upon the acceptance or rejection of which the verdict of the jury necessarily depended. For this reason, the testimony sought to be impugned by the subsequent indictment for perjury went to the ultimate and live issue in the murder trial. It was a re‑affirmation on oath by the respondent of his plea of not guilty to murder. Proof of the falsity of that re‑affirmation was a necessary ingredient of the perjury charge.
That is apparent from the terms of the direction to the jury by Muir J at the conclusion of the perjury trial, which included the following:

[80]

In submissions to this Court, the applicant fixed upon observations in some authorities[135] which may suggest that it is permissible to litigate afresh matters determined in earlier criminal proceedings where those proceedings were affected by "fraud" or where there is "fresh evidence". It was submitted that perjury constitutes a species of fraud upon the court and that, if there be "significant" or "substantial" fresh evidence, principles of "double jeopardy" do not deny the competency of an indictment for perjury committed in earlier criminal proceedings which resulted in an acquittal.
The reasoning in R v El‑Zarw[136] may be consistent with these propositions. The accused was charged with perjury in that at his trial for the murder of his wife he falsely swore to the effect that he had not killed her. The resemblance to the perjury count in the present case will be apparent. A demurrer to the indictment, pursuant to ss 598 and 605 of the Criminal Code, on the ground that it disclosed no offence cognisable by the court, had been overruled by the trial judge[137].
The accused was convicted of perjury. His appeal succeeded but not on the ground that the demurrer should have been allowed or that there had been some other wrong decision of any question of law, as provided by s 668E(1) of the Criminal Code. Rather, the conviction was set aside as "unsafe and unsatisfactory"[138]. This expression is not used in s 668E[139] but indicates that, within the meaning of s 668E, there is a "miscarriage of justice" if a verdict is unreasonable or not supportable on the evidence or is attended by a real doubt as to whether it is "safe or just"[140].
The outcome in El‑Zarw involved the recasting of a substantive legal deficiency, to which the procedures in ss 598 and 605 are directed, into an exercise of determining whether the proceedings were an abuse of process. The actual outcome may be supported on the ground that the demurrer should have been allowed. However, the reasoning adopted by the Court of Criminal Appeal appears to have been[141] that the verdict was "unsafe and unsatisfactory" because there was insufficient additional evidence to that at the first trial and so no addition of "a new dimension" to the Crown case[142]. Rather, it was said, the Crown case on perjury involved "simply going behind the verdict of acquittal", something "not permissible under the double jeopardy rule"[143].
It is unnecessary for this application to rule upon the availability in law of the proposed "exceptions" urged by the applicant. However, it may be said that, cast in terms of weighing and balancing the fairness of a trial, they lack cogency. Further, either separately or in combination, they would operate to deprive principles of "double jeopardy" of much of their content. The recognition of perjury as a general exception for "fraud" would enable the State, by the expedient of laying such a charge, to controvert an earlier acquittal in any case in which the accused had given evidence affirming a plea of not guilty. Similarly, an exception for "fresh evidence", whether "substantial" or otherwise, removes an encouragement to thorough investigation in the first instance. Any weakening of the "double jeopardy" principles in the fashion proposed should be by legislative action.

[81]

The respondent would have had a good demurrer under ss 598 and 605 of the Criminal Code for failure of the indictments to disclose an offence known to the law[144]. That course was not followed. But, given the course of the procedure which instead was adopted before Muir J, the respondent should not be prejudiced in this Court against seeking to uphold the favourable outcome he obtained in the Court of Appeal. Further, because the perjury indictment in the present instance could not be supported by s 123 of the Criminal Code, and consistently with authority in this Court, the laying of that indictment was vexatious or oppressive in the sense necessary to constitute an abuse of process; in substance, there was an attempt to re‑litigate the earlier prosecution[145].
Doubt does not attend the decision of the Court of Appeal that Muir J erred in declining to stay the prosecution. The outcome in the Court of Appeal was correct as a matter of law. Therefore, no occasion arises to consider the further matters which the applicant would seek to agitate in this Court.
Full argument on the question of law having been heard, special leave to appeal should be granted, but the appeal should be dismissed.
McHUGH J. The question in this special leave application is whether the Crown should be granted special leave to appeal against an order of the Court of Criminal Appeal of Queensland quashing a conviction for perjury and entering a verdict of acquittal. In my opinion, special leave should be granted but the appeal should be dismissed on the ground that the charge against the respondent for perjury was an abuse of process because it had a tendency to undermine the respondent's acquittal of an earlier charge of murder.
It is an abuse of process for the Crown to charge a person with an offence of perjury when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge. A perjury charge that has that effect is an abuse of process even if the evidence supporting the charge is different from the evidence that supported the prosecution case in respect of the charge on which the accused was acquitted. The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal. That is so even though the evidence proving perjury is unanswerable.

[106]

Section 598(2)(e) of the Code provides that a person may plead "that the person has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that the person cannot under the provisions of this Code be tried for the offence charged in the indictment".
Hence, the Code expressly deals with the principle of double jeopardy. Do these provisions of the Code indicate that the common law principles of double jeopardy have no operation in Queensland?
In R v Viers[177], Thomas J said that Sir Samuel Griffith, who drafted the Criminal Code, thought that s 17 extended the common law. However, given the modern developments concerning the common law of double jeopardy, Thomas J was correct in saying that "in some respects [s 17] narrows it." Nevertheless in R v Viers[178], Thomas J held that he had jurisdiction to stay an indictment which offended common law double jeopardy principles. In R v Viers, the prosecution sought to charge a person on indictment with possession of cannabis after he had pleaded guilty to possession of the same drug in summary proceedings. Although s 17 did not apply to the case before him, Thomas J thought[179] "it would be oppressive to allow the present proceedings to run their course" and stayed the indictment.
In the Court of Appeal in this case, Williams JA held, correctly in my opinion, that s 17 had no application to the present case[180]. Although s 17 exhaustively defines the circumstances in which a person can plead a defence of double jeopardy[181] and does not protect Carroll's acquittal on the murder charge, s 17 does not exclude the inherent jurisdiction of the Supreme Court to stay proceedings on the ground of abuse of process. By s 58 of the Constitution of Queensland 2001, which echoes the former ss 7 and 8 of the Supreme Court Act 1991 (Q), the Supreme Court is the superior court of record in Queensland. Section 58(1) invests it with "all jurisdiction that is necessary for the administration of justice in Queensland". Quite apart from the jurisdiction inherent in the Supreme Court to protect its process, those words are wide enough to authorise the stay of any curial proceedings in Queensland[182]. They are wide enough to stay proceedings on the ground that they infringe the double jeopardy principle and constitute an abuse of process. In Rogers[183], this Court held that, if subsequent proceedings put at risk the finality of a previous decision involved in an acquittal or conviction, those proceedings are an abuse of process. If they are an abuse of process, an accused person can apply for a stay of proceedings, for every court of justice has inherent power to prevent its procedures being abused[184]. It would be contrary to orthodox principles of statutory construction to find that a section, such as s 17, had impliedly repealed or confined the jurisdiction of the Supreme Court. Statutes are not interpreted as depriving superior courts of their jurisdiction unless the intention to do so appears expressly or by necessary implication, and that is a proposition that extends beyond applying the so-called ouster clauses[185].
Further, the general words of s 123(1) are not to be read as altering the fundamental rule of the common law that an acquittal of a criminal charge "may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict"[186]. General enactments do not abolish fundamental rights. In Coco v The Queen[187], four Justices of this Court said:

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