AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 24 October 2005

Regina v Stone

[2005] NSWCCA 344

Also reported as 157 A Crim R 41
Drugs
AUTREFOIS CONVICT AUTREFOIS CONVICT AUTREFOIS CONVICT ACQUITTAL

Citation: Regina v Stone [2005] NSWCCA 344
Court: New South Wales Court of Criminal Appeal
Date: 24 October 2005
Judge(s): Hunt AJA; Hislop J; Smart AJ

Background

The respondent was stopped by police and found to be in possession of 22.7 grams of methylamphetamine, together with scales, small resealable bags, glucose, and syringes. He was charged on indictment with supplying a prohibited drug under a deemed supply provision, and a summary possession charge was also laid as a back-up.

At committal in the Local Court, the magistrate declined to commit the respondent for trial on the supply charge and discharged him. The respondent then pleaded guilty to the summary possession offence and was dealt with on that charge.

When the Crown subsequently proceeded to indict the respondent in the District Court on the supply charge, the respondent entered a plea in bar in the nature of autrefois convict (a doctrine that prevents a person from being tried twice for the same matter). District Court Judge Coolahan upheld that plea. The Crown appealed to the Court of Criminal Appeal.

  • Whether a plea in bar in the nature of autrefois convict could be sustained where the respondent had been dealt with on the summary possession offence but had not been sentenced on any charge arising from the supply proceedings
  • Whether a "conviction" for the purposes of autrefois convict requires both a finding of guilt and the imposition of a sentence (as the final disposal of the case)
  • Whether the District Court judge's ruling upholding the plea in bar constituted an interlocutory order (which the Crown could appeal under s 5F of the Criminal Appeal Act 1912) or a final decision equivalent to an acquittal (which the Crown could not appeal)

Decision

The Court of Criminal Appeal found that Judge Coolahan had erred in upholding the plea in bar. For autrefois convict to succeed, the accused must establish both a prior conviction in the sense of a finding of guilt and a sentence in the sense of the final disposal of the case. In the present matter, there had been no sentence on any charge referable to the supply proceedings, and the plea in bar should therefore have been rejected.

Despite finding the ruling erroneous, the Court held it had no jurisdiction to set it aside. The judge's decision to uphold the plea was not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912. It was a final decision: it allowed the respondent to go free and prevented any trial on the indictment. In practical effect, it operated as an acquittal.

The Court confirmed a long-standing tradition in New South Wales that appeals against acquittals are not entertained, whether the acquittal results from a jury verdict or a judge's direction. Section 5A(2)(a) of the Criminal Appeal Act permits the Attorney General or Director of Public Prosecutions to refer a question of law to the Court after an acquittal, but that provision does not empower the Court to set the acquittal aside. No other avenue for a Crown appeal existed on the facts.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A plea in bar in the nature of autrefois convict requires the accused to establish both a conviction (a finding of guilt) and a sentence (the final disposal of the case). The absence of a sentence means the plea is not made out.
  • The District Court erred in upholding the plea because no sentence had been imposed, leaving one of the two essential elements unestablished.
  • A ruling that upholds a plea in bar and prevents a trial from proceeding is a final decision, not an interlocutory order. It is equivalent to an acquittal and falls outside the scope of s 5F of the Criminal Appeal Act 1912.
  • No Crown appeal lies against a ruling that operates as an acquittal, whether under s 5F or otherwise. The Court of Criminal Appeal confirmed this as a long-standing principle in New South Wales.
  • Section 5A(2)(a) of the Criminal Appeal Act allows a question of law to be referred to the Court following an acquittal, but does not authorise the Court to disturb the acquittal itself.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5A, 5F
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 65, 66, 165
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Drugs, Poisons and Controlled Substances Act 1981 (Vic)
- Criminal Code (Tas), Schedule 1 to Criminal Code Act 1924

Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- Grassby v The Queen (1989) 168 CLR 1
- Saraswati v The Queen (1991) 172 CLR 1
- Walton v Gardiner (1993) 177 CLR 378
- Pearce v The Queen (1998) 194 CLR 610
- Rogers v The Queen (1994) 181 CLR 251
- Griffiths v The Queen (1977) 137 CLR 293
- S (an infant) v Recorder of Manchester [1971] AC 481
- Richards v The Queen [1993] AC 217
- Della Patrona v DPP [No 2] (1995) 38 NSWLR 257
- Regina v Cheng (1999) 48 NSWLR 610
- Regina v Holton [2004] NSWCCA 214
- Kopuz v District Court of NSW (1992) 28 NSWLR 232