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District Court 16 February 2018

R v Walter

[2018] NSWDC 75

Assault & violence
CRIME PROCEDURE AUTREFOIS ACQUIT INTERESTS OF JUSTICE ABUSE OF PROCESS INCONTROVERTIBILITY

Citation: R v Walter [2018] NSWDC 75
Court: District Court of New South Wales
Date: 16 February 2018
Judge: Blackmore SC DCJ

Background

The accused faced trial by jury on a charge of break and enter and commit a serious indictable offence, specifically assault occasioning actual bodily harm, in circumstances of aggravation involving corporeal violence. The jury returned a verdict of not guilty.

Before committal, the Crown had filed a section 166 certificate under the Criminal Procedure Act 1986 (NSW). That certificate included assault occasioning actual bodily harm as a back-up charge. A back-up charge is a lesser offence, capable of being dealt with summarily, whose elements are entirely contained within the elements of the greater indictable offence.

Following the acquittal, the question arose whether the accused should be required to face a summary hearing on the back-up charge of assault occasioning actual bodily harm. The accused argued that proceeding would be either barred by the principle of autrefois acquit (the rule against being tried twice for the same offence) or would constitute an abuse of process.

  • Whether the doctrine of autrefois acquit applied to bar the summary hearing on the back-up charge
  • Whether proceeding with the back-up charge would constitute an abuse of process
  • Whether the statutory back-up charge regime under Division 7 of the Criminal Procedure Act 1986 (NSW) could itself operate oppressively
  • Whether it was in the interests of justice, under section 167(1A) of the Criminal Procedure Act, to proceed with the summary hearing on the back-up charge

Decision

On autrefois acquit: The court held that the doctrine did not apply. An acquittal of a charge is an acquittal of the whole charge, not of each element within it. For autrefois acquit to apply, both offences must share the same essential ingredients. The back-up offence and the greater offence are not identical charges, so the technical bar did not operate.

On abuse of process: The court drew on the High Court's observations in R v Carroll (2002) 213 CLR 635, which emphasised that a verdict of acquittal should be treated as incontrovertible and that finality in judicial proceedings is a foundational principle. The court accepted that retrying an accused on a charge whose elements were necessarily left for the jury to decide in the principal trial raised serious concerns of oppression.

On the statutory scheme: The court held that the existence of the Division 7 back-up charge procedure, and the fact that the accused had been notified of the back-up charge before trial, did not in themselves make the further prosecution oppressive. Parliament had expressly contemplated this process. However, section 167(1A) preserves the court's discretion to decline to proceed where doing so would not be in the interests of justice, and that discretion remained fully available.

On the interests of justice: The court exercised the section 167(1A) discretion against proceeding. The assault was a necessary element of the greater charge tried before the jury. The prosecution had rested almost entirely on the complainant's evidence. The jury had assessed that evidence and returned a not-guilty verdict. No separate admitted facts or agreed circumstances existed that might have left the assault element unresolved. The court stated that, as a general rule, it is not in the interests of justice to retry an accused when a tribunal of fact has already reached a final decision on an essential element of a charge that encompassed the back-up offence.

Orders Made

• The court declines to hear the back up charge of assault occasioning actual bodily harm on the basis that it is not in the interests of justice to do so.

Key Takeaways

  • The doctrine of autrefois acquit does not extend to individual elements of a charge: only where two offences share the same essential ingredients will the doctrine operate as a bar to further prosecution.
  • Under section 167(1A) of the Criminal Procedure Act 1986 (NSW), a court retains a discretion to decline to hear a back-up charge where doing so would not be in the interests of justice, even when the statutory back-up charge procedure has been properly invoked.
  • The District Court held, applying R v Carroll, that the finality of a jury verdict extends to essential elements of the charge on which the accused was acquitted, and that this finality carries significant weight in the interests-of-justice analysis under section 167(1A).
  • Proceeding on a back-up charge is not rendered oppressive merely by the existence of the Division 7 procedure or by prior notice to the accused, but those considerations do not exhaust the court's inquiry.
  • Exceptions to the general rule may exist: where agreed facts or admissions meant the jury was never required to reach a concluded view on the element in question, the interests-of-justice calculus could point the other way.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm)
- Criminal Procedure Act 1986 (NSW), ss 163, 165, 166, 167(1A), 259, Division 7, Schedule 1 Tables 1 and 2

Cases
- Connelly v Director of Public Prosecutions [1964] AC 1254
- R v Carroll (2002) 213 CLR 635
- PJE v The Queen (1996) 15 Leg Rep C2