The Queen v Hiep Van Tu [2000] ACTSC 44

Supreme Court of the ACT|2000-05-30|Before: Crispin J

1. An indictment was initially presented in this matter charging the accused with four offences. He was duly arraigned upon that indictment but the jury was discharged without being called upon to deliver any verdicts. The matter was re-listed for trial before me on 24 May 2000 but before a further jury could be empanelled the Crown prosecutor informed me that she sought leave to withdraw the indictment and to present a fresh one omitting the first and second counts. Mr Thomas, who appeared for the accused, indicated he objected to that course. He contended that once an indictment had been presented it could not be withdrawn and that if the Crown no longer wished to pursue two of the counts then the accused was entitled to acquittals on those charges. A jury panel had already assembled and, with the consent of both parties, the issue was dealt with in Chambers.

2. Neither counsel was able to refer me to any authority dealing with an application for leave to withdraw an indictment after a jury had been discharged and before a fresh trial had commenced. Mr Thomas submitted that the discharge of the earlier jury was immaterial and that the accused should be treated as having been, in effect, on trial from the moment the indictment was presented and as remaining on trial notwithstanding the discharge of the jury. I was unable to accept this submission. I accept of course that an indictment cannot simply be withdrawn once a trial has commenced and the accused is in the jury's charge. However, if the jury is discharged without rendering a verdict then that trial has been concluded. Thereafter the indictment may remain on foot and continue to enliven the jurisdiction of the court but, in my view, the court may give leave for it to be withdrawn or amended if appropriate.

3. If, as Mr Thomas suggested, the indictment could only be discharged by a verdict in relation to each count then the Crown would be unable to file a nolle prosequi even if it had decided that, in the light of the evidence adduced at the first trial, it would be inappropriate to pursue any of the charges upon which he or she had been arraigned. I do not accept that such a course would not be open to the Crown or that the law is so inflexible as to require an accused to be again brought to trial when the Crown no longer contends that he or she is guilty of the relevant offences and should be acquitted.

4. The issue may be of some importance because a person who has been acquitted is entitled to plead autrefois acquit in answer to any subsequent prosecution for the same offences and if tried for any other offences is entitled to the full benefit of the acquittals. A decision to withdraw charges or resolve them by means of a nolle prosequi does not provide the same protection. However such decisions are frequently made prior to the presentation of an indictment and I do not accept that the mere fact that an indictment has been presented necessarily entitles an accused who has been the subject of an incomplete or inconclusive trial to greater protection. In an appropriate case it may be possible to prevent any unfair prejudice by staying the presentation of a subsequent indictment on the ground that it would constitute an abuse of process. In any event, the mere risk of some such disadvantage does not, in my view, provide any justification for concluding that the court has no power to grant leave for the Crown to withdraw an indictment after one trial has been concluded and before any subsequent trial has commenced.

5. In the present case the Crown undertook not to initiate any further prosecution in relation to the offences that had been charged in the first two counts and indicated that it would not be contending that the accused had committed the acts constituting the gravamen of those offences. Mr Thomas nonetheless maintained that there might be some advantage to the accused in making the jury aware that he had been charged but acquitted of such offences in that it might dispel suspicions that could arise in the minds of jurors even in the absence of any relevant accusation or suggestion by the Crown. However I am satisfied that any such risk of prejudice is slight and could be obviated by appropriate directions.

6. Accordingly, I granted leave for the Crown to withdraw the former indictment. Had I taken the view that there was no power to grant leave for the indictment to be withdrawn I would have granted the Crown leave to amend the indictment by omitting the first and second counts.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the accused: Darryl Perkins Solicitors

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