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10
Court of Criminal Appeal 26 November 2007

GILHAM v REGINA

[2007] NSWCCA 323

Also reported as (2007) 73 NSWLR 308 (2007) 178 A Crim R 72
Homicide
CRIMINAL LAW GENERAL MATTERS CRIMINAL LIABILITY AND CAPACITY DOUBLE JEOPARDY PLEAS AT BAR NOT AVAILABLE PRINCIPLE OF INCONTROVERTIBILITY

Citation: Gilham v Regina [2007] NSWCCA 323
Court: New South Wales Court of Criminal Appeal
Date: 26 November 2007
Judges: Spigelman CJ; McClellan CJ at CL; Hulme J; Hidden J; Latham J

Background

In August 1993, the appellant's mother, father and brother were stabbed to death. The appellant was charged with his brother's murder but pleaded guilty to manslaughter on the basis that he had acted under provocation, his brother having killed their parents. That plea was accepted in full discharge of the murder indictment, and a formal acquittal of murder followed.

Over the following decade, two coronial inquests examined the deaths of the appellant's parents. After the second inquest, the Coroner concluded the appellant should stand trial for those murders, but the Director of Public Prosecutions declined to prosecute, citing insufficient prospects of conviction. A private prosecution commenced by a family member was subsequently taken over by the Director and terminated.

A fresh police investigation commenced in late 2004. In February 2006, the Director filed an ex-officio indictment charging the appellant with the murder of both parents. The appellant sought a permanent stay of those proceedings on double jeopardy and abuse of process grounds. Howie J in the Supreme Court refused the stay, and the appellant appealed to the Court of Criminal Appeal.

  • Whether the formal pleas of autrefois acquit and autrefois convict were available to bar the new prosecution
  • Whether the appellant had in fact been "acquitted" of his brother's murder when the murder charge was discharged following a guilty plea to manslaughter
  • Whether the principle of incontrovertibility of verdicts (derived from The Queen v Carroll (2002) 213 CLR 635) extended to bar the current prosecution, given the earlier acquittal and conviction
  • What test applies to determine when a subsequent prosecution is "manifestly inconsistent" with a prior acquittal
  • Whether the new prosecution constituted an abuse of process warranting a permanent stay

Decision

The Court unanimously held that the formal pleas at bar (autrefois acquit and autrefois convict) were unavailable because the appellant had never previously been charged with the murder of his parents. Those pleas apply only where the accused faces prosecution for the same offence on which they were previously tried.

On the question of acquittal, the Court held (Spigelman CJ and Hulme J; McClellan CJ at CL, Hidden J and Latham J agreeing on this point) that the acceptance of a guilty plea to manslaughter, in discharge of the murder indictment, constituted an acquittal of murder. The fact that the prosecution led no evidence on the murder charge did not deprive the appellant of the benefit of that acquittal, consistently with Maxwell v The Queen (1996) 184 CLR 501.

On incontrovertibility, Spigelman CJ stated the applicable test as whether the subsequent prosecution is "manifestly inconsistent" with the prior acquittal, assessed by comparing the elements of the new charge against the issues determined in the first trial. His Honour rejected a broader formulation that would bar any prosecution that might merely "call into question" or "tend to undermine" a prior acquittal. McClellan CJ at CL, with Hidden J and Latham J agreeing, held that the incontrovertibility principle is engaged where the prosecution in the later trial seeks to establish one or more of the elements necessary to establish the earlier offence. On the facts, the verdicts relating to the brother's death said nothing, in themselves, about the appellant's involvement in the deaths of his parents, and the prosecution of the parents' murders was not manifestly inconsistent with the earlier outcomes.

The Court also rejected the abuse of process argument. Although the appellant was found to have been "in jeopardy" in the earlier proceedings, no abuse of process was established on the particular facts. The community's interest in prosecuting serious offences, and the circumstance that earlier investigations were incomplete rather than deliberately withheld, weighed against a stay. Leave to appeal on grounds 1 and 2 was granted, but the appeal was dismissed in its entirety.

Orders Made

  • Leave to appeal on Grounds 1 and 2 granted
  • Leave to appeal otherwise refused
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the formal pleas of autrefois acquit and autrefois convict are only available where the accused was previously tried for the same offence, not a related one involving different victims.
  • Acceptance of a guilty plea to manslaughter in discharge of a murder indictment constitutes an acquittal of murder, even where the prosecution led no evidence on the murder charge.
  • The test for incontrovertibility, as stated by Spigelman CJ, is whether the subsequent prosecution is "manifestly inconsistent" with the prior acquittal when the elements of the new charge are compared with the issues determined at the first trial. A broader test that would bar any prosecution "tending to undermine" a prior verdict was rejected.
  • Under the McClellan CJ at CL formulation (which attracted majority agreement on grounds 1 and 2), the incontrovertibility principle is engaged when the prosecution in a later trial must establish one or more elements that were also elements of the offence the subject of the earlier acquittal.
  • Finding that an accused was "in jeopardy" in earlier proceedings does not automatically establish an abuse of process sufficient to warrant a permanent stay; the court must weigh competing public interests, including the community's interest in prosecuting serious offences where fresh evidence has emerged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 394A, 395
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act (NSW), ss 153, 154, 157
- Evidence Act 1995 (NSW), s 4(2)
- Criminal Code (Canada), s 606(4)
- Marine Pollution Act 1987 (NSW)
- Road Traffic Act 1972 (UK), s 5

Key Cases:
- The Queen v Carroll (2002) 213 CLR 635
- Maxwell v The Queen (1996) 184 CLR 501
- Island Maritime Limited v Filipowski (2006) 226 CLR 328
- Rogers v The Queen (1994) 181 CLR 251
- Pearce v The Queen (1998) 194 CLR 610
- Garrett v The Queen (1977) 139 CLR 437
- R v Storey (1978) 140 CLR 364
- Director of Public Prosecutions (SA) v B (1998) 194 CLR 566
- Connelly v Director of Public Prosecutions [1964] AC 1254
- Mraz v The Queen [No 2] (1956) 96 CLR 62
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509
- Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
- AJS v The Queen (2007) 81 ALJR 1208
- R v Janceski (2005) 64 NSWLR 10
- R v Maxwell (1994) 34 NSWLR 606