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Supreme Court 8 April 1999

DPP v Heagney & Anor

[1999] NSWSC 303

Theft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL LAW WHETHER AUTREFOIS CONVICT AVAILABLE

Citation: DPP v Heagney & Anor [1999] NSWSC 303
Court: Supreme Court of New South Wales, Common Law Division
Date: 8 April 1999
Judge(s): Studdert J

Background

The second defendant was arrested in September 1997 following a bag-snatching incident in Bankstown. He pleaded guilty in the Local Court to stealing from the person and stealing a motor vehicle. The statement of facts tendered at that hearing described the defendant as a passenger in the stolen vehicle, not the driver.

In March 1998, the prosecution laid seven fresh informations in the Burwood Local Court, each alleging offences committed on the same date. Six of those charges, including three counts of furious driving causing bodily harm, required proof that the defendant was the driver of the vehicle. A seventh charged him with furnishing false particulars.

The defendant applied to have those seven informations permanently stayed. He argued that the earlier convictions effectively established, as a matter of judicial determination, that he was not the driver. The Burwood magistrate accepted that argument and ordered a permanent stay on 23 October 1998. The Director of Public Prosecutions challenged that order in the Supreme Court.

  • Whether the plea of guilty and conviction in the earlier Local Court proceedings gave rise to the plea of autrefois convict (a common law bar to a second prosecution where the defendant has already been convicted of the same offence)
  • Whether the subsequent proceedings amounted to an abuse of process, on the basis that proceeding would invite a judicial determination inconsistent with a prior one
  • Whether the magistrate erred in law by ordering a permanent stay of the seven informations

Decision

Studdert J held that the plea of autrefois convict was not available on these facts. That plea requires the later charge to be the same, or substantially the same, as the earlier one. The subsequent informations alleged entirely different offences from the stealing charges to which the defendant had pleaded guilty. The earlier convictions did not, in law, determine the question of whether the defendant was the driver.

On the abuse of process argument, the court found that the magistrate fundamentally misapprehended the nature of the jurisdiction being exercised. The fact that a statement of facts tendered on a plea of guilty suggested the defendant was a passenger did not constitute a binding judicial determination on that question. No court had actually found as a matter of adjudication that the defendant was not the driver, and any inconsistency arising from the subsequent proceedings was therefore not of the kind that could ground an abuse of process.

The court also rejected the submission that the stay should not be lifted because the defendant was unlikely to receive a greater sentence. Studdert J noted that three of the informations contained as an essential element the causing of bodily harm, making the submission premature. The court further rejected the argument that the stay operated as a discharge conferring immunity from further prosecution, applying the principle from Nicholas v The Queen that a stay is not the equivalent of an acquittal and confers no vested right.

Orders Made

  • A declaration that the magistrate erred in law on 23 October 1998 in ordering the permanent stay of the seven informations
  • An order setting aside the magistrate's permanent stay order
  • An order that the seven informations be heard and determined according to law in the Local Court
  • Costs reserved, with parties to make submissions

Key Takeaways

  • The plea of autrefois convict requires the later charge to be the same or substantially the same offence as the earlier one; it does not apply merely because both charges arise from the same incident or time period.
  • A statement of facts tendered on a plea of guilty does not constitute a binding judicial determination of the facts it contains. No adjudication on those facts occurred, and a subsequent proceeding requiring proof of a different element does not create a legally cognisable inconsistency.
  • Abuse of process based on inconsistent judicial determinations requires an actual prior adjudication of the relevant issue, not merely an inference drawn from a statement of facts.
  • A permanent stay of criminal proceedings is not equivalent to a verdict of acquittal. It confers no vested right and does not bar subsequent proceedings if the stay is set aside, as confirmed by the High Court in Nicholas v The Queen.
  • Where a magistrate fundamentally misapprehends the nature of the jurisdiction being exercised, that error warrants intervention by the Supreme Court on judicial review.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 53, 94, 154(aa)(1)
- Traffic Act 1909 (NSW), ss 4(1), 6(1)(a), 8(5)
- Justices Act 1902 (NSW), s 134

Cases
- The Queen v Storey (1978) 140 CLR 364
- DPP v Humphrys [1977] AC 1
- Rogers v The Queen (1994) 181 CLR 251
- Pearce v R (1998) 156 ALR 684
- The Queen v Riley [1896] 1 KB 309
- Reg v O'Neill (1979) 2 NSWLR 502
- DPP v Shirvanian (1998) 44 NSWLR 129
- Walton v Gardiner (1993) 177 CLR 378
- R v Dodd (1991) 56 A Crim R 451
- Waterhouse v Gilmore (1988) 12 NSWLR 270
- Nicholas v The Queen (1998) 72 ALJR 456
- Smiles v Commissioner of Taxation (1992) 37 FCR 538