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Court of Criminal Appeal 2 April 2002

R v Vincent

[2002] NSWCCA 110

Public order & justice offences
COURT OF CRIMINAL APPEAL JURISDICTION CRIMINAL APPEAL ACT 1912 (NSW) S 5F AUTREFOIS ACQUIT

Citation: R v Vincent [2002] NSWCCA 110
Court: Court of Criminal Appeal, New South Wales
Date: 2 April 2002
Judge(s): Heydon JA, Studdert J, Levine J

Background

The accused had been charged with maliciously damaging a dwelling by explosion at Woollahra in February 1997. A trial in the District Court in mid-2001 produced a jury acquittal on the alternative count and a hung jury on the primary count. A retrial was listed for October 2001.

Before the retrial commenced, the accused filed a notice of motion seeking a permanent stay of proceedings, citing substantial delay and prejudice to him and his family. The application was re-framed by consent as a plea in bar of autrefois acquit (a plea that the accused has already been acquitted of the same matter and cannot be tried again). Hosking DCJ accepted that plea, vacated the trial date, and concluded by saying: "I discharge the accused."

The Crown then appealed to the Court of Criminal Appeal, relying on section 5F of the Criminal Appeal Act 1912 (NSW), which permits Crown appeals against interlocutory judgments or orders. The Court raised the question of its own jurisdiction before hearing the merits.

  • Whether the Court of Criminal Appeal had jurisdiction under section 5F of the Criminal Appeal Act 1912 to entertain a Crown appeal from the primary judge's order.
  • Whether the words "I discharge the accused" constituted an interlocutory order (appealable under section 5F) or a final order in the nature of an acquittal (not so appealable).
  • Whether there is any legal distinction between a "discharge" and an "acquittal" on an indictment in this context.

Decision

The Court identified the jurisdictional question at the outset and invited the Crown to identify its statutory basis for appeal. The Crown pointed solely to section 5F, which is limited to interlocutory orders. The question therefore turned on the character of the primary judge's concluding words.

The Crown ultimately accepted that the words "I discharge the accused," read in the context of the primary judge's reasoning and the circumstances of the case, amounted in substance to an acquittal. The Crown declined to argue that any distinction existed between a "discharge" and an "acquittal" on the indictment, a concession Heydon JA noted had not been developed in written submissions due to the late identification of the jurisdictional issue.

An acquittal is a final order, not an interlocutory one. Because section 5F only permits appeals from interlocutory orders, and no other statutory provision was relied upon, the Court concluded it had no jurisdiction to hear the appeal. The merits of the plea of autrefois acquit were therefore left entirely undecided.

Heydon JA also noted in passing that the primary judge's observation about the proceedings approaching the point of an abuse of process was sensible, though that issue required no further comment given the outcome.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • An acquittal is a final order, and no appeal lies from it without express statutory authority. Section 5F of the Criminal Appeal Act 1912 confers jurisdiction only over interlocutory orders and cannot support a Crown appeal from what is, in substance, an acquittal.
  • The words "I discharge the accused," used by a trial judge after upholding a plea of autrefois acquit, were treated by the Court of Criminal Appeal as equivalent in substance to an acquittal, not as a mere interlocutory step.
  • In dismissing the appeal, the Court left open the question of whether any formal distinction exists between a "discharge" and an "acquittal" on an indictment, since the Crown did not press any such distinction on the facts of this case.
  • The decision underscores the importance of precise drafting of orders: Heydon JA observed that the more satisfactory course would have been for the precise order to appear on the face of the indictment opposite "Verdict" or "Judgment," rather than being expressed only in spoken reasons.
  • Where a Crown appeal is contemplated following a plea in bar such as autrefois acquit, the statutory source of appellate jurisdiction requires careful identification before proceedings are commenced, as the final or interlocutory character of the order will be determinative.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F

Cases:
No cases were cited in the text of the judgment.