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25
Court of Criminal Appeal 8 October 2009

R v PL

[2009] NSWCCA 256

Also reported as (2009) 199 A Crim R 199 (2009) 261 ALR 365
Public order & justice offences
CRIMINAL LAW APPEAL IDENTIFYING GROUND OF APPEAL STATUTORY CONTEXT ABROGATION OF DOUBLE JEOPARDY PRINCIPLE CRIMINAL LAW

Citation: R v PL [2009] NSWCCA 256
Court: Court of Criminal Appeal, New South Wales
Date: 8 October 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; R A Hulme J

Background

The respondent stood trial in the Supreme Court on a charge of murder. At the close of the Crown's case, Rothman J directed the jury to return verdicts of not guilty to both murder and manslaughter. The direction on manslaughter was given even though manslaughter was not the charge on the indictment.

The Director of Public Prosecutions appealed against the directed verdicts under s 107 of the Crimes (Appeal and Review) Act 2001. That provision allows the Crown to appeal a directed acquittal, but only "on any ground that involves a question of law alone." Its operation involves a partial abrogation of the common law principle of double jeopardy, which ordinarily prevents a person from being tried again after an acquittal.

The central dispute was whether the trial judge had erred in directing acquittals, and if so, what orders the Court of Criminal Appeal could make in response.

  • What does "question of law alone" mean for the purposes of s 107, and does a ground alleging misapplication of legal principles to facts qualify?
  • Is it necessary for the Crown to identify a specific act of the accused that caused death in order to establish murder or manslaughter?
  • What is the scope of the Court's discretion under s 107 to quash an acquittal and order a new trial?
  • Can the Court limit a new trial to manslaughter where the original trial was for murder?
  • Should the Court decline to order a new trial on murder where a resulting conviction would likely be set aside as unreasonable on appeal?

Decision

Question of law alone. The Court confirmed that the phrase "question of law alone" in s 107 does not extend to mixed questions of fact and law. A ground asserting that a trial judge misapplied legal principles to the facts of the case necessarily involves an assessment of the facts, and therefore does not qualify. The Court read this restriction purposively: because s 107 overrides the fundamental double jeopardy principle, the legislature's choice of the narrower formulation was deliberate.

The error below on causation. The Court found that Rothman J had proceeded on the incorrect legal premise that the Crown was required to identify a particular act of the accused which caused the injuries leading to death. The correct legal position is that it is not necessary to establish a precise act causing death in order to prove either murder or manslaughter. This error was a question of law alone, and therefore within the appellate jurisdiction under s 107.

Discretion to quash and limit any new trial. Once the jurisdictional threshold was satisfied, the Court considered whether to exercise the discretion to quash the acquittals and order a new trial. The Court held that the word "may" in s 107 genuinely imports a discretion, consistent with the gravity of overriding double jeopardy. It concluded that if a resulting conviction would inevitably be overturned as unreasonable on appeal, ordering a new trial would constitute an abuse of process. Applying that reasoning, the Court found the murder case too weak to justify retrial: the Crown's evidence of intent to kill was thin, and no objective evidence surpassed proof of a fight and equivocal evidence of an attempted strangulation.

New trial limited to manslaughter. The Court held that s 107(6), which empowers it to "order a new trial in such manner as the Court thinks fit," permitted a new trial limited to manslaughter, even though the original indictment charged only murder. Because minimising the injustice of a retrial after acquittal is a significant consideration in this statutory context, the Court exercised its discretion to quash the manslaughter acquittal while affirming the murder acquittal, and ordered a new trial on manslaughter only.

Orders Made

  • The acquittal on the charge of murder was affirmed.
  • The verdict of acquittal on the charge of manslaughter was quashed.
  • A new trial was ordered, limited to a charge of manslaughter.

(Note: Special leave to appeal to the High Court was refused on 1 October 2010.)

Key Takeaways

  • Under s 107 of the Crimes (Appeal and Review) Act 2001, a Crown appeal from a directed acquittal is confined to grounds involving "a question of law alone." A ground asserting misapplication of legal principles to the facts is a mixed question, and falls outside that jurisdiction.
  • It is not necessary to establish the precise act that caused a victim's death in order to prove murder or manslaughter. A trial judge who directed acquittals on that erroneous premise committed a legal error, not a factual one.
  • The Court of Criminal Appeal confirmed that the discretion to quash an acquittal and order a new trial under s 107 is genuine and unconfined. The double jeopardy principle, even in its partially abrogated statutory form, remains relevant to how that discretion is exercised.
  • Where the Court is satisfied that any conviction returned at a new trial would be overturned as unreasonable on appeal, ordering that new trial would itself be an abuse of process. The Court may decline to make such an order on that basis.
  • Section 107(6)'s power to order a new trial "in such manner as the Court thinks fit" extends to limiting the retrial to a lesser charge, even where the original indictment charged a more serious offence. This power exists to minimise the injustice inherent in requiring a person to face trial again after an acquittal.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 100, 101, 104, 107
- Criminal Appeal Act 1912 (NSW), ss 6, 8
- Crimes Act 1900 (NSW)

Key Cases:
- R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108
- AJS v The Queen [2007] HCA 27; (2008) 235 CLR 505
- Royall v The Queen (1990) 172 CLR 378
- Williams v The Queen (1986) 161 CLR 278
- Maxwell v The Queen (1995-1996) 184 CLR 501
- Doney v The Queen (1990) 171 CLR 207
- Weissensteiner v The Queen (1993) 178 CLR 217
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Burrell v The Queen [2007] NSWCCA 65; [2009] NSWCCA 193
- Krishna v DPP (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
- R v Murrell [2001] NSWCCA 179
- Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705