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Court of Criminal Appeal 1 June 2001

R v Chekeri

[2001] NSWCCA 221

Also reported as 122 A Crim R 422
Drugs

Citation: R v Chekeri [2001] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 1 June 2001
Judges: Spigelman CJ, Greg James J, Howie J

Background

The respondent faced prosecution arising from events on 4 February 1999, when police arrested him in possession of heroin packages in his motor vehicle (the "BMW count") and found a larger quantity of heroin in a basement at separate premises (the "basement count"). Both counts alleged supply of a large commercial quantity of heroin contrary to the Drug Misuse and Trafficking Act 1985. The prosecution had a complex procedural history spanning multiple trials and juries.

At a second trial before Judge Bellear, his Honour directed a verdict of not guilty on the basement count, finding insufficient evidence that the respondent had exclusive possession of the drugs found there. However, Judge Bellear discharged the jury on the BMW count without returning a verdict, concerned that evidence admitted for the basement count may have prejudiced the respondent on the BMW count.

When the Crown subsequently presented a fresh indictment on the BMW count alone before Judge Finnane, his Honour permanently stayed the proceedings. Judge Finnane held that continuing the prosecution would amount to an abuse of process because it implicitly challenged the validity of the earlier acquittal on the basement count. The Crown appealed that stay as of right under s 5F of the Criminal Appeal Act 1912.

  • Whether the acquittal on the basement count gave rise to a res judicata or issue estoppel that barred the Crown from prosecuting the BMW count.
  • Whether prosecuting the BMW count required the Crown to contradict findings underlying the basement count acquittal, such that doing so constituted an abuse of process.
  • Whether any inconsistency between the two counts, or a change in the Crown's presentation of its case, could justify a permanent stay of proceedings.

Decision

Howie J, with whom Spigelman CJ and Greg James J agreed, held that Judge Finnane's grounds for ordering the stay were erroneous. The BMW count and the basement count were factually and legally distinct charges. The drugs the subject of each count were different; the BMW count concerned heroin found in the vehicle, while the basement count concerned heroin found in the building. An acquittal on one charge did not create a legal bar, whether by res judicata or issue estoppel, to prosecution on the other.

The Court rejected the argument that pursuing the BMW count amounted to challenging the acquittal on the basement count. The acquittal related solely to the heroin found at the basement premises, and a verdict on the BMW count would not contradict that result. Proceeding on the BMW count raised no question about the respondent's possession of the basement heroin; the two counts rested on separate bodies of evidence.

The Court also rejected the contention that a change in the Crown's tactics or evidence between trials could itself justify a stay. Where any resulting prejudice arises from such a change, the appropriate remedy is an adjournment or, if necessary, discharge of the jury during the trial itself. That kind of prejudice does not, without more, warrant a permanent stay.

Howie J expressly reserved all questions about the admissibility of specific evidence for the trial judge, including whether testimony given by the respondent at an earlier trial could be tendered, and what directions might be required to protect the effect of the acquittal. Those matters were left entirely to the discretion of the judge conducting the retrial.

Orders Made

  • The appeal is allowed.
  • The order of Judge Finnane permanently staying the proceedings is quashed.

Key Takeaways

  • An acquittal on one count does not automatically bar prosecution on a separate count arising from the same broader episode, where the two counts rest on distinct evidence and distinct allegations.
  • Res judicata and issue estoppel in criminal proceedings operate only to the extent that the same issue was necessarily determined by the earlier verdict. The Court of Criminal Appeal confirmed that no such identity of issue existed between the basement and BMW counts here.
  • A permanent stay of criminal proceedings is not the appropriate remedy where a change in the Crown's case or tactics between trials may cause prejudice to the accused. Adjournment or discharge of the jury during trial are the mechanisms for addressing such prejudice.
  • Judge Finnane's conclusion that the Crown's continued prosecution constituted an abuse of process was found to be based on an erroneous view of res judicata arising from the directed acquittal.
  • Questions of admissibility of prior testimony and the appropriate directions to protect the effect of an acquittal remain matters for the trial judge's discretion, informed by fairness to both parties.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- R v Humphrys [1977] AC 1
- Rogers v The Queen (1994) 181 CLR 251
- Connelly v DPP [1964] AC 1254
- R v Wilkes (1948) 77 CLR 511
- Dodd (1991) 56 A Crim R 451
- Garret v The Queen (1977) 139 CLR 437
- Storey v The Queen (1978) 140 CLR 364
- Pearce v The Queen (1998) 194 CLR 610
- Filippetti (1978) 13 A Crim R 335
- R v Hinton (NSWCCA, unreported, 19 March 1976)
- R v Z [2000] 3 All ER 385
- King v The Queen (1986) 161 CLR 423
- R v Anderson (1991) 53 A Crim R 421
- Jimanez v The Queen (1992) 173 CLR 572
- Parker v The Queen (1996) 186 CLR 494