[HOUSE OF LORDS.]

AND

Crime - Nemo debet bis vexari - Acquittal by Court of Criminal Appeal - Effect - Indictments for murder and robbery - Trial on murder charge alone - Two defences, including alibi - Conviction of non-capital murder - Appeal raising issue on alibi only - Murder conviction quashed on ground of misdirection to jury on alibi issue - Whether tantamount to finding on issue of alibi - Trial on second indictment for robbery - Whether barred by plea of autrefois acquit - "Issue estoppel" - Whether available in English criminal law - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4 (1) (2).

Crime - Evidence - Previous proceedings - Acquittal on murder charge - Trial for robbery - Oral statements attributed to defendant admitted at first trial admissible at second - Whether fact of acquittal admissible in rebuttal - Acquittal by Court of Criminal Appeal.

Crime - Practice - Indictment - Discretion - Judge of opinion that prosecution should not proceed - Whether discretion to prevent trial.

Crime - Court of Criminal Appeal - Acquittal by - Effect - Murder conviction quashed on ground of misdirection to jury on one issue - Whether tantamount to finding of fact on that issue - Trial on

further indictment for robbery raising same issue - Whether barred - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4.

Estoppel - Per rem judicatam - Criminal proceedings - "Issue estoppel" - Ingredients - Whether available as plea in bar.

By section 4 of the Criminal Appeal Act, 1907: "(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered ..."

The appellant, C., and three other men were charged on two indictments with murder and robbery with aggravation, arising out of an office robbery in November, 1962, during which an employee was killed. In accordance with practice, the indictment for murder was tried alone, C.'s defence being (a) alibi, and (b) if present, no intent to murder. The jury returned a general verdict of guilty against all four men. At the conclusion of the trial the judge directed that the indictment for robbery should remain on the file marked "Not to be proceeded with without leave of this court or of the Court of Criminal Appeal." C. appealed on some 15 grounds but the sole issue considered by the Court of Criminal Appeal was whether the evidence and the direction to the jury on the question whether or not C. had been present at the scene of the crime were satisfactory. The court considered that on that issue the jury had been so misdirected that the conviction must be quashed and directed a verdict of acquittal to be entered, as required by section 4 of the Act; but the court thereafter granted leave to the Crown to proceed with the prosecution of C. on the second indictment for robbery. One month later the matter came before John Stephenson J. when the plea of autrefois acquit was raised on C.'s behalf; the judge directed the jury empanelled to try that issue that the plea had not been established and a verdict to that effect was returned. The judge was also asked to exercise his discretion to prevent the Crown from proceeding on the second indictment, but held that the only discretion which a judge had in such circumstances was to express an opinion; and he expressed the opinion that it would be wrong for the Crown to proceed. Despite that opinion, the Crown proceeded with the prosecution; and a month later C. was tried and convicted on the robbery indictment:-

Held, that the plea of autrefois acquit must be given a limited

scope and it was not a bar to C. being tried afresh on the robbery charge. This case did not come within the proposition that the plea of autrefois can arise whenever in order to prove the offence alleged in the second indictment the prosecution must prove that the accused has committed an offence of which he has previously been either convicted or acquitted.

Per Lord Morris of Borth-y-Gest. On a plea of autrefois acquit it must be considered whether the crime charged in the later indictment is the same, or in effect the same, as the crime charged in a former indictment and it is immaterial that the facts under examination or the witnesses called in the later proceedings are the same as those in the earlier proceedings (post, p. 1306).

Per Lord Devlin. For the doctrine of autrefois acquit to apply the accused must have been put in peril for the same offence both in fact and law with which he was previously charged. The offence must be exactly the same in law because legal characteristics are precise and either they are the same or they are not (post, p. 1339).

Per Lord Morris of Borth-y-Gest. The principle of res judicata applies to criminal cases, but on a verdict of Guilty or Not Guilty it was often not possible to deduce whether it involved a particular determination; it was not possible in the present case (post, p. 1321).

Per Lord Hodson. The reliance on issue estoppel breaks down here because, looking at the verdict of the jury and the judgment of the Court of Criminal Appeal, it is impossible to establish any separate issue in C.'s favour (post, p. 1334).

Per Lord Devlin. For issue estoppel actual determination of issues is essential and the formal verdict entered by the Court of Criminal Appeal revealed only that there had been a misdirection of fact. There was no determination on the issue of identity (post, p. 1345).

Rex v. Norton [1910] 2 K.B. 496; 25 T.L.R. 550, C.C.A. applied.

Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 Q.B. 1; [1953] 3 W.L.R. 586; [1953] 2 All E.R. 750, D.C. followed.

Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458; 66 T.L.R. (Pt. 2) 254, P.C. distinguished.

Reg. v. Salvi (1857) 10 Cox 481n.; Reg. v. King [1897] 1 Q.B. 214; 13 T.L.R. 27; Reg. v. Ollis [1900] 2 Q.B. 758; 16 T.L.R. 477; Rex v. Barron [1914] 2 K.B. 570; 30 T.L.R. 422, C.C.A.; Rex v. Kupferberg (1918) 13 Cr.App.R. 166; 34 T.L.R. 587, C.C.A.; Mraz v. The Queen (No. 2) (1956) 96 C.L.R. 62 and Brown v. Robinson [1960] S.R.(N.S.W.) 297 considered.

Per Lord Devlin. It is within the power of the court to declare that the prosecution must as a general rule join in the same indictment charges which are founded on the same facts or are part of a series of offences of the same or a similar character. As a general rule a judge should stay an indictment founded on the same facts as the charges in a previous indictment on which the accused has been tried. But a second trial on the same or similar facts is not always and necessarily oppressive and in special circumstances may be just and convenient (post, pp. 1359-1360).

Per Lord Reid, Lord Devlin and Lord Pearce. The rule of practice based on Rex v. Jones [1918] 1 K.B. 416, C.C.A. that a second charge is never combined in one indictment with a charge of murder is inconvenient and should be changed, although in a case where it would have been improper to combine the charges a second indictment is allowable. The course which the present case had taken was in accordance with existing practice (post, pp. 1296, 1360, 1368).

Decision of the Court of Criminal Appeal post, p. 1268; [1963] 3 W.L.R. 839; [1963] 3 All E.R. 510, C.C.A. affirmed.

APPEAL from the Court of Criminal Appeal (Edmund Davies, Lawton and Lyell JJ.).

The appellant, Charles Connelly, appealed against a decision of the Court of Criminal Appeal delivered on September 30, 1963. On June 24, 1963, he had been convicted at the Central Criminal Court of robbery with aggravation and sentenced to 15 years' imprisonment. The Court of Criminal Appeal dismissed his appeal against conviction and sentence.

In February, 1963, four men - Thatcher, Hilton, Kelly, and the present appellant, Charles Connelly - were charged before Roskill J. and a jury with the murder of an employee of the Royal Arsenal Co-operative Society in the course of robbing their depot at Mitcham on the night of November 17, 1962. At the trial, Thatcher, Hilton and Connelly denied that they were present at the scene of the crime, and Connelly further claimed, as an alternative defence, that, if he had been present, the evidence did not establish that he had the felonious intent necessary to support a conviction for murder. Kelly admitted that he was at the scene of the crime and that he was a robber, but he denied that he was a murderer. The jury convicted Thatcher of capital murder and the other three men, including Connelly, of non-capital murder.

There had originally been against all four men not only the indictment for murder but also a second indictment for robbery with aggravation. In accordance with the rule of practice, the indictment for murder was tried alone; but at the conclusion of the trial, after the four men had been convicted and sentenced, Roskill J. ordered that the second indictment should remain on the file, marked: "Not to be proceeded with without the leave of this court or of the Court of Criminal Appeal."

Three of the convicted men, including Connelly, appealed to the Court of Criminal Appeal. Connelly put forward some 15 grounds of appeal, but the court found it necessary to consider only the first four; and in the event the only issue ventilated

in the Court of Criminal Appeal was whether the evidence and the direction to the jury thereon relating to Connelly's alleged presence at the scene of the murder were satisfactory. The issue as to murderous intent was not raised.

Ashworth J., giving the judgment of the court (Ashworth, Winn and Thompson JJ.) on April 5, 1963, said¹: "When Hilton and Connelly were arrested they were also said to have admitted being present. ... On Connelly's appeal, Connelly stated that during the week before the offence he had travelled to the north and back. A New Year card on which he had jotted down details of an accident he said he had seen on the trip was described by the prosecution as the acid test of his veracity. The Crown case was that the whole story was fictitious and the card was a memorandum of information from someone else. Unhappily, when summing up, the trial judge referred to the card, and invited, almost directed, the jury to find that it was bogus. A judge was entitled to express his own views and the trial judge had already told the jury that they could accept or reject any comments he made. It was incumbent on him, however, to lay before the jury, after making his comment, any evidence to a contrary effect so that they could form their own conclusions one way or the other. Connelly's explanation for making notes on the card should have been put before the jury. The court was driven reluctantly to the view that the jury did not receive adequate direction. When dealing with evidence of a footprint, said to have been made by Connelly on a piece of carbon paper in the office, the judge descended into the arena and reminded the jury of some of the evidence. In the course of doing that the judge made critical comments of the defence evidence. To say that he was pouring scorn on an expert witness for the defence was scarcely putting it too high. It was not for the court to express a view whether the comments were justified; but if the matter was to be dealt with, it was incumbent on the judge to deal with it fully and fairly ... there were matters which, in justice to Connelly, should have been dealt with more fully in the summing up. He was entitled through his counsel to say that the omission of a full and proper direction resulted or might have resulted in a miscarriage of justice. His defence, he said, was not adequately presented in the summing up and this court finds there is justification for that comment. It is undesirable

1 (1963) The Times, April 6, 1963.

that this court should go further by commenting on the strength or otherwise of the case against him. It may be that these matters will have to be considered hereafter by a different jury, if Connelly has to face a different charge. ..."

The result of the appeals of the three men was that in Thatcher's case a verdict of non-capital murder was substituted, Hilton's appeal was dismissed, and Connelly's appeal was allowed, the court ordering, as directed by section 4 (2) of the Criminal Appeal Act, 1907, that the conviction for murder be quashed and a verdict of acquittal directed. At the conclusion of the court's judgment, the Crown applied for leave to prefer against Connelly the second indictment alleging robbery with aggravation. After hearing argument, the court granted that application, and Connelly was remanded in custody to await trial.

The matter then came before John Stephenson J. on May 8, 1963, when autrefois acquit was advanced as a plea in bar to the trial of the robbery indictment and a jury was empanelled for the purpose of adjudicating upon that plea. The judge directed the jury that the plea had not been established, and they returned a verdict accordingly. He further held that the only discretion he had in the circumstances was to express an opinion as to the propriety of the Crown's proceeding with the robbery indictment, and he thereupon expressed the opinion that this would be wrong. Despite that opinion, the Crown was not prepared to abstain from proceeding with the second trial, and the Attorney-General refused to enter a nolle prosequi. In those circumstances, John Stephenson J. took the view that there was no way in which he could stop the robbery indictment from proceeding and he ordered that Connelly be remanded in custody to await trial. That trial started before Nield J. and a jury at the Central Criminal Court on June 7 and finished on June 24, 1963. Connelly was convicted of robbery with aggravation and sentenced to 15 years' imprisonment. He appealed against both conviction and sentence on 22 grounds, the principal grounds being set out in the judgment of the Court of Criminal Appeal (infra).

C. L. Hawser Q.C. and A. F. Waley for the appellant. First, the doctrine of autrefois acquit, which is on the authorities much wider in scope than the two headings set out in Archbold, 35th ed. (1962), para. 436, is wide enough to cover this case; and John Stephenson J. wrongly directed the jury that it had not been made out. The authorities show that the courts have applied the doctrine to cases not only of "the same offence"

but also of "substantially the same offence," and also to cases where a conviction on a second indictment would be inconsistent with acquittal on the first. In Reg. v. Gould² the offences of murder and burglary with violence were not "the same" or even "substantially the same"; but on the issue of the use of violence it was held that the second indictment could not stand.

[LAWTON J. Is not the whole basis of the law relating to autrefois a matter of pleading, so that you look at the record to see what was alleged in the two charges?]

No; it was permissible to look beyond the record to see what was actually decided and where an issue could be isolated the plea in bar prevailed: [Reg. v. Bird³; Reg. v. Elrington⁴; Reg. v. Morris⁵; Reg. v. De Salvi⁶; Wemyss v. Hopkins⁷; Reg. v. O'Brien⁸ and Reg. v. Gilmore⁹ were referred to.] In Reg. v. Miles¹⁰ autrefois acquit was said to bar proceedings for the same "offence"; but it is submitted that that meant the same "matter."

[LAWTON J. If it is the same "matter," it can be dealt with on a broader basis; but if autrefois acquit is a matter for the jury and technically it is the same offence, the judge must direct the jury that it is the same offence and the jury becomes a mere rubber stamp. Who decides in a border-line case that it is the same "matter"?]

The judge decides, and the jury have to do what they are told, as they were in Reg. v. Buckle and Owens¹¹ by Diplock J. and in the present case by John Stephenson J. The situation arose in Reg. v. King,¹² which is relied on, when a larceny conviction was quashed because it was inconsistent with a previous conviction for false pretenses.

In the present case it is agreed that only two issues were before the jury on the murder trial and that only one of those issues was considered by the Court of Criminal Appeal, so that it is possible to isolate the issue on which the acquittal was directed, namely, whether or not it had been proved that the appellant was present at the scene of the crime; and therefore the plea of autrefois acquit is available. If one were limited to looking at

2 (1840) 9 C. & P. 364.

3 (1851) 2 Den. 94.

4 (1861) 9 Cox C.C. 86.

5 (1867) 10 Cox C.C. 480, C.C.R.

6 Ibid. 481n., 483.

7 (1875) L.R. 10 Q.B. 378.

8 (1882) 15 Cox C.C. 29, C.C.R.

9 (1882) 15 Cox C.C. 85.

10 (1890) 24 Q.B.D. 423, 431; 6 T.L.R. 186.

11 (1957) The Times, Sept. 26.

12 [1897] 1 Q.B. 214; 13 T.L.R. 27; 18 Cox C.C. 449, C.C.R.

the record, the issue determined could not be ascertained, but the court can and should look beyond the record and is then able to see in this case the isolated issue determined by the Court of Criminal Appeal as a bar to a second trial. [Reg. v. Friel¹³; Reg. v. Grimwood¹⁴ and Reg. v. King¹⁵ were referred to.]

Secondly, the doctrine known in certain common law jurisdictions as "issue estoppel" is available as a plea in bar to the trial on the indictment for robbery. While it is conceded that the general approach to a plea of autrefois acquit or convict has been somewhat technical, there is some English authority and a large amount of Australian, New Zealand and United States authority to support the submission that where, in the course of deciding a total cause of action, one specific issue is determined, then, if that issue arises as an essential ingredient in subsequent proceedings between the same parties, that issue cannot be relitigated. The decision of the Court of Criminal Appeal in the appellant's favour on the issue of his presence at the crime is a decision on an essential ingredient of the indictment for robbery and therefore the prosecution is estopped from trying him on a second charge where the issue arises again. In Reg. v. Ollis,¹⁶ where it was said that there could be no estoppel, that was because it was not possible to determine on what ground the first acquittal was directed, and it is therefore distinguishable.

[LAWTON J. Under the old terminology any plea in the nature of estoppel would have to be by record, and not by judgment, so that in this case once the two records had been looked at, no question of estoppel could arise.]

The cases show that the question of estoppel is not approached on the narrow basis of estoppel by record; otherwise the whole investigation undertaken by the court in Rex v. Barron¹⁷ would have been unnecessary. [Welton v. Tanebourne¹⁸; Rex v. Kendrick and Smith¹⁹; Flatman v. Light²⁰ and Rex v. Thomas²¹ were referred to.] If it can be established that an issue estoppel exists, that it is a defence and not merely a rule of evidence, and that it is available in English criminal proceedings, as it certainly is in English civil proceedings, this appellant must

13 (1890) 17 Cox C.C. 325.

14 (1896) 13 T.L.R. 70; 60 J.P. 809.

15 [1897] 1 Q.B. 214.

16 [1900] 2 Q.B. 758, 769, 771; 16 T.L.R. 477; 19 Cox C.C. 554, C.C.A.

17 [1914] 2 K.B. 570; 30 T.L.R. 422, C.C.A.

18 (1908) 21 Cox C.C. 702, D.C.

19 (1931) 23 Cr.App.R. 1, C.C.A.

20 [1946] 1 K.B. 414, 421; 62 T.L.R. 456; [1946] 2 All E.R, 368, D.C.

21 [1950] 1 K.B. 26, 31; 65 T.L.R. 586; [1949] 3 All E.R. 662, C.C.A.

succeed. In Sambasivam v. Public Prosecutor, Federation of Malaya,²² the Judicial Committee said that the maxim "Res judicata pro veritate accipitur" was no less applicable to criminal than to civil proceedings. That is relied on. [Reg. v. Hogan²³ was referred to.] See also the Australian decisions in Reg. v. O'Keefe²⁴; Rex v. Wilkes²⁵ and Kemp v. The King,²⁶ and the article by Dr. Colin Howard on "Res Judicata in the Criminal Law" in the Melbourne University Law Review (1961), p. 101, on the "rediscovery" of the doctrine of issue estoppel. Reg. v. Clift²⁷ and Mraz v. The Queen (No. 2)²⁸ are also relied on as strong persuasive authority that where, as in the present case, an issue decided as part of a total decision can be isolated, that issue cannot be relitigated. Once the Court of Criminal Appeal concluded that there might here have been a miscarriage of justice, the appellant was declared innocent on the issue before the court "for all purposes": see per Lord Reading C.J. in Rex v. Barron.²⁹ If that is not the effect of the acquittal, a sort of limbo is created in which it is being said: "He is still half guilty."

[LAWTON J. No: he has not been acquitted on the charge of murder. It is astonishing that if issue estoppel exists as a plea in bar the lawyers of the nineteenth century never raised it and that the textbooks have no reference to it.]

But nineteenth century cases such as Reg. v. King³⁰ were determined in favour of an accused person by the application of issue estoppel. [Reg. v. Flood³¹; Brown v. Robinson³²; United States v. Oppenheimer,³³ per Mr. Justice Holmes; Sealfron v. United States³⁴ and Harris v. State of Georgia³⁵ were also referred to.] That the doctrine of issue estoppel is available in civil cases is established by the English decisions in Hoystead v. Commissioner of Taxation³⁶; New Brunswick Railway Co. v. British and French Trust Corporation Ltd.³⁷ and the Australian decision in Jackson v. Goldsmith.³⁸

22 [1950] A.C. 458, 479; 66 T.L.R. (Pt. 2) 254, P.C.

23 [1960] 2 Q.B. 513; [1960] 3 W.L.R. 426; [1960] 3 All E.R. 149, C.C.A.

24 (1894) 15 L.R.(N.S.W.) 1.

25 (1948) 77 C.L.R. 511.

26 (1951) 83 C.L.R. 341.

27 (1952) 52 S.R.(N.S.W.) 213, 217.

28 (1956) 96 C.L.R. 62, 68.

29 [1914] 2 K.B. 570, 574, C.C.A.

30 [1897] 1 Q.B. 214, C.C.R.

31 (1956) Tas.S.R. 95.

32 (1960) S.R.(N.S.W.) 297, 301.

33 (1916) 242 U.S.Rep. 85, 87.

34 (1948) 332 U.S.Rep. 575.

35 (1941) 17 South Eastern Reporter 573.

36 [1926] A.C. 155; 42 T.L.R. 207, P.C.

37 [1939] A.C. 1; 55 T.L.R. 260; [1938] 4 All E.R. 747, H.L.

38 (1950) 81 C.L.R. 446.

On those authorities the approach to this case should be that when the court looks, as it may do, beyond the bare record, and analyses what the jury did on the murder trial and what the Court of Criminal Appeal did in quashing the conviction of murder, there was an acquittal of this appellant which negatives the commission of the robbery for all purposes, because he was not present.

[LYELL J. But in our law quashing a verdict of guilty on the ground of misdirection does not have the effect of making a finding of fact on anything.]

Neither the jury nor the Court of Criminal Appeal ever make a positive finding; but the effect of the acquittal here on the only issue before the appellate court is to bar a trial in which that issue again arises.

Thirdly, the acquittal by the Court of Criminal Appeal on the charge of murder is inconsistent with the verdict of guilty by the jury on the robbery charge, and as the two verdicts cannot stand together, the conviction on the second charge must be quashed or set aside: Rex v. Cooper and Compton³⁹ and Reg. v. Walker⁴⁰ are relied on.

Fourthly, if neither autrefois acquit nor issue estoppel are made out, John Stephenson J. had a discretion to bar or shop the second trial in view of his expressed opinion that it ought not to proceed. The judge had originally been invited by counsel both for the Crown and for the appellant to exercise a discretion, on the basis that such a discretion existed; but when the judge had expressed his opinion, he was uncertain how to implement it, and was convinced by counsel for the Crown that he had no power to do so. If in fact the judge had a real discretion and had exercised it, in the light of his opinion, in favour of the appellant, this man would have gone free. It is submitted that the judge could have implemented his opinion by making an order to stay proceedings in the same form as is made on an order of autrefois acquit, namely, "that the judgment is that the defendant shall go sine die and he is altogether discharged from the prosecution."

It is conceded that if a trial is a trial de novo, the judge may not have a discretion to stop proceedings, whatever his own views may be; but where the question is of a second trial there is a

39 (1947) 63 T.L.R. 561; [1947] 2 All E.R. 701; 32 Cr.App.R. 102, C.C.A.

40 (1843) 2 Mood. & R. 446.

discretion if the judge considers it right on grounds of justice and fairness to stop the trial: see Rex v. Miles⁴¹ and per Lord Reading C.J. in Rex v. Barron,⁴² referring to Reg. v. King,⁴³ per Hawkins J. The argument as to the propriety of this court quashing the verdict on the second trial is strengthened by the fact that there is no way in criminal proceedings of testing the decision of John Stephenson J. on the question of discretion, as there is no machinery for going to the appellate court on a preliminary point in a criminal matter, as there is in a civil matter. One would have assumed, in the present case, that where a judge expressed an opinion against proceeding to a second trial, the prosecution would not go ahead, but when the prosecution ignores the opinion and proceeds, there is an inherent discretion in the court to stop it; but there is no authority directly on the point. The Crown has contended that it has some special and inherent right to have matters litigated, but that cannot be right, for it does not apply in cases of autrefois convict or acquit and that is judge-made law.

[LAWTON J. Unfortunately for this submission, Lord Goddard C.J. in Reg. v. Middlesex Quarter Sessions, Ex parte Director of Public Prosecutions⁴⁴ said that the prosecution has a right to present its case and that it is the duty of the court to hear it.]

In civil cases it has been held that there is an inherent discretion in the court to stop an action from proceeding: see Metropolitan Bank v. Pooley⁴⁵ and Willis v. Earl of Beauchamp.⁴⁶

[LAWTON J. Civil cases do not assist, for ever since the reign of William and Mary Parliament has laid down the procedure by which cases come before the jury on an indictment, and there cannot be an omission of the procedure in bringing a matter before a jury.]

The fact that there is such machinery does not matter; and it would be odd if the inherent jurisdiction were not available in cases concerning the liberty of the subject when it is available in mere civil cases: see Reg. v. Tancock⁴⁷ and Rex v. Baines,⁴⁸ which are also relied on.

Fifthly, on the facts of this case, the foundation of the Crown's case on both trials was a series of statements amounting to

41 (1909) 3 Cr.App.R. 13, 15, C.C.A.

42 [1914] 2 K.B. 570, 575.

43 [1897] 1 Q.B. 214, 217.

44 [1952] 2 Q.B. 758, 767; [1952] 2 T.L.R. 135; [1952] 2 All E.R. 312; 36 Cr.App.R. 114, C.C.A.

45 (1885) 10 App.Cas. 210, H.L.

46 (1886) 11 P.D. 59; 2 T.L.R. 270, C.A.

47 (1876) 13 Cox C.C. 217.

48 [1909] 1 K.B. 258, 262.

admissions alleged to have been made by this appellant to the police. Objection was raised to their admission on the second trial on the basis of the decision in Sambasivam v. Public Prosecutor, Federation of Malaya⁴⁹; but Nield J. ruled that they were admissible because it could not be said that the admissions were admissions of murder. It is submitted that where the Crown relies on statements as the foundation of a case for murder, it cannot subsequently rely on the same statements as the foundation of its case for robbery after the murder conviction has been quashed. Further, after the evidence had been admitted, the jury should have been told what had happened on the previous trial and the ground on which the murder conviction was quashed; but the judge refused to allow the jury to be told of those matters. [Phipson on Evidence (Pt. 2) 9th ed. (1952), p. 49, was referred to.]

[Counsel then made detailed criticisms of specific points in the summing up of Nield J. to the jury.]

Finally, the sentence imposed by Nield J. was excessive, having regard to the fact that the accused must in law be treated as a robber and not as a murderer; and in the special circumstances of this case the court may feel it proper to impose a different sentence.

J. Griffith-Jones and Alastair Morton for the Crown. It is conceded that the real principles of the doctrine of autrefois to be gleaned from the authorities go beyond the statement of principle in 2 Hawkins Pleas of the Crown, c. 35 (1824, 8th ed.) and the two headings in Archbold (para. 436) and extend to cases (a) offences of which the accused could have been convicted on the first indictment and cases (b) where a previous acquittal necessarily involves an acquittal on a second charge. They are all based on the wider principle of nemo debet bis vexari: see Rex v. Kupferberg⁵⁰ (where the expression is "the same essential ingredients"), and Flatman v. Light.⁵¹ But the two headings set out in Archbold, together with (a) and (b) above, are a comprehensive list of the only circumstances known to the law of this country in which autrefois acquit or convict applies as a plea in bar. The facts of the present case have only to be stated to see that it cannot be brought under any of those four heads. The two offences of murder and robbery require quite different

49 [1950] A.C. 458.

50 (1918) 34 T.L.R. 587; 13 Cr. App.R. 166, 168, C.C.A.

51 [1946] 1 K.B. 414; 62 T.L.R. 456, D.C.

elements; on the first trial for murder, two quite distinct defences were put forward, though one with more vigour than the other. It cannot be known on which ground the jury returned the verdict of guilty; and unless this court holds that the quashing of the conviction for murder by the Court of Criminal Appeal was in fact a finding on an "essential element" in the murder trial, namely, the issue of alibi, which is also an essential element in the robbery case, this cannot be a case of autrefois acquit.

On issue estoppel, though it would appear that there has developed in the Australian and United States courts such a plea in bar, the first question is whether it operates as a plea in bar in English criminal law? The next question is whether, if it does operate here, the quashing of the murder conviction was a decision on the issue whether the appellant was or was not present at the scene of the crime?

The only distinction between autrefois acquit and issue estoppel which appears to have emerged during the present submissions is that in the latter case one can look behind the record at the evidence, the judgment and so on; but there is no single case in English law where the doctrine has been applied.

[LAWTON J. There is plenty of authority in civil cases and it would be strange if one were bound by a stricter rule in cases affecting the life and liberty of the subject.]

The position in this case is that the quashing of the murder conviction cannot be said to be a finding on the essential issue of alibi. The Court of Criminal Appeal performing its duty under the Criminal Appeal Act, 1907, is not required to "find" directly on any issue but only to allow the appeal in specified circumstances set out in section 4: the only one which was applicable in this case was the fourth circumstance, namely, the court's opinion that "on any other ground there was a miscarriage of justice." Those words were judicially interpreted in Rex v. Cohen and Bateman⁵² as meaning that where by reason of a mistake of fact or omission at the trial the appellant lost the chance of being acquitted which was fairly open to him; and as the court had no power to grant a new trial the conviction had to be quashed. That is all that the Court of Criminal Appeal can be said to have "found"; and it is clear, both from the judgment of the court and from the fact that at its conclusion the court gave leave to proceed against the acquitted person on the second indictment for robbery, that the court was not considering that on

52 (1909) 2 Cr.App.R. 197, 207-208, C.C.A.

the issue as to alibi it was finding anything in the appellant's favour. The court should look at the reality of the decision on the murder appeal and not at the suggested fiction that by quashing a conviction under section 4 of the Act of 1907 in the circumstances of this case the Court of Criminal Appeal made a finding of fact. There is no single authority to support that submission and it would be against the true interests of the administration of the criminal law to introduce fictions of that nature. Moreover, Rex v. Norton⁵³ - a decision which is on all fours with the present case - was a case in which, if issue estoppel were part of our criminal law it must have been raised as a plea in bar; yet it was held not to be a case of autrefois acquit, and the question of issue estoppel was not even mentioned: see also per Lord Maugham L.C. in the New Brunswick case,⁵⁴ that estoppel cannot be made to extend to presumptions or probabilities.

Further, if the court considers that the principle of issue estoppel, described in the Melbourne University Journal as being "rediscovered" in the Australian and United States courts, applies in English law, the court must also apply the conditions essential to its operation, as stated in Harris v. State of Georgia⁵⁵ and Mraz v. The Queen (No. 2),⁵⁶ namely, that the previous judgment must have been conclusive on matters in issue actually found and necessarily decided, or issues "distinctly raised and found." Reg. v. King⁵⁷ was not a case of issue estoppel, the ground for refusing a second trial there being that the two offences - fraud and larceny - were wholly inconsistent.

[LAWTON J. I am worried about issue estoppel, for two reasons: (1) This doctrine arises commonly in civil cases, and it would be deplorable that a defence available in civil cases would not be available in identical circumstances in a criminal matter; and (2) it would also be deplorable if there were divergences between countries under the common law system, and if English law lagged behind because of a strict rule of pleading.]

On the first proposition it must be borne in mind that in civil cases there is no plea such as autrefois acquit. On the second proposition, it is agreed that a divergence in the common law countries would be unfortunate.

On the question whether a judge has a discretion to stop a trial because in his view it would be unfair or unjust to let it go

53 (1910) 5 Cr.App.R. 65, 197, C.C.A.

54 [1939] A.C. 1, 20.

55 (1941) 17 South Eastern Reporter 573.

56 (1956) 96 C.L.R. 62, 68.

57 [1897] 1 Q.B. 214.

on, it is submitted that there is no such discretion, and a judge cannot say that an issue between the Crown and a subject shall not be tried unless it can be said to be an abuse of the process of the court or there is some established principle of law which bars a trial. Reg. v. Middlesex Quarter Sessions (Chairman), Ex parte Director of Public Prosecutions⁵⁸ and Reg. v. London (County) Quarter Sessions, Ex parte Downes⁵⁹ are authorities that a court of trial has no discretion to refuse to try a case except in the four sets of circumstances set out by Lord Goddard C.J. in the Ex parte Downes case.⁶⁰ Reg. v. Tancock⁶¹ does not support the view that there is a discretion; and when Lord Reading C.J. in Rex v. Barron⁶² referred to Reg. v. King⁶³ as a case of the exercise of discretion he was not strictly accurate. It is well known from one's experience that an accused man has a right to have the verdict of a jury if he desires it; and it would be strange if the Crown, acting in the interests of the community as a whole, were in a less favorable position than an accused person. There is no discretion as such in a judge to stop a trial.

[The court indicated that they did not wish to hear counsel on the criticism of the summing-up.]

Hawser Q.C. in reply referred to Rex v. De Kuyper⁶⁴ and Rex v. Aughet⁶⁵ and Archbold, p.67, on "Preferring the Bill of Indictment." If it had not been for the rule of practice by which indictments for murder are not tried with any other indictment on the record, and if the robbery had been tried with the murder charge, the plea of autrefois acquit would have been available to this appellant, even if the jury had been discharged from giving a verdict on the robbery charge. That strengthens the argument that the judge who considered the plea of autrefois acquit has a discretion to stop the proceedings on the second trial.

September 30. EDMUND DAVIES J. read the following judgment of the court: This is an appeal by Charles Connelly against his conviction and sentence, before Nield J. and a jury at the Central Criminal Court on June 24 last, on an indictment alleging robbery

58 [1952] 2 Q.B. 758, 767; [1952] 2 T.L.R. 135; [1952] 2 All E.R. 312; 36 Cr.App.R. 114, C.C.A.

59 [1954] 1 Q.B. 1; [1953] 3 W.L.R. 586; [1953] 2 All E.R. 750, D.C.

60 [1954] 1 Q.B. 1, 6.

61 (1876) 13 Cox C.C. 217.

62 [1914] 2 K.B, 570, 574-576.

63 [1897] 1 Q.B. 214.

64 1948 S.A.S.R. 108.

65 (1918) 34 T.L.R. 302; 13 Cr. App.R. 101, C.C.A.

with aggravation in connection with a robbery and murder which took place at the Royal Arsenal Co-operative Society Depot in Mitcham on November 17, 1962. The appellant was sentenced to 15 years' imprisonment. [His Lordship stated the facts as set out above and continued:] The foundation of the present appeal against his conviction for robbery with aggravation is that the quashing by the Court of Criminal Appeal of the murder conviction is said to have involved a finding by that court that Connelly's presence at the Mitcham crime had not been proved. Upon those premises Mr. Hawser has constructed an elaborate argument (for which the court is greatly indebted) that the robbery conviction ought now to be quashed for one or more of the several reasons he advanced.

These reasons were: (1) that Connelly was entitled to rely upon the plea in bar of autrefois acquit which he had raised, and that John Stephenson J. misdirected the jury in telling them that it was not available to him; (2) that, assuming that autrefois acquit was not available, Connelly was entitled to rely upon what in some of the Commonwealth and American authorities has been called an "issue estoppel," and in consequence he ought never to have been tried on the robbery indictment; (3) that the conviction for robbery should be quashed as being inconsistent, in the circumstances, with the quashing of the murder conviction; (4) that, even though neither autrefois acquit nor "issue estoppel" could be made out, the trial judge had a discretion to prevent Connelly being tried on the robbery indictment if he felt that in the particular circumstances it was unfair and unjust that there should be re-litigation on an issue which was before this court in the murder appeal and upon which the ultimate verdict of acquittal was founded, even though there had been no specific finding on that issue; that John Stephenson J. had wrongly held that he had no such discretion; and that, in those circumstances this court should now either quash the conviction or order (as in cases of autrefois acquit): "That the defendant shall go sine die and altogether be discharged from the prosecution."

In addition to the foregoing matters, the summing-up of Nield J. has been criticised in a number of respects.

Before proceeding to consider these submissions seriatim, it is important to see what happened, first at the murder trial at the Central Criminal Court and, secondly, in the Court of Criminal Appeal, and then to examine the precise effect, under the Criminal Appeal Act, 1907, of the quashing of the murder conviction.

As to the first matter, it is clear beyond doubt, and it is

conceded, that the defence of Connelly was a twofold one: (a) an alibi, and (b) alternatively, even were he present at the scene of the murder, the evidence did not establish that he had the felonious intent necessary to support a murder conviction. As to the second matter, some fifteen grounds were relied on in the Court of Criminal Appeal, but, in the event, this court found it necessary to deal only with the first four grounds. The first and second grounds related to what was called "the Heysham incident," and it is perfectly clear that the Court of Criminal Appeal regarded it as having relevance not only to the alibi defence, but also to the general issue of the credibility of the appellant. The third ground related to Roskill J.'s direction to the jury as to the evidence relating to footprint impressions on two pieces of carbon paper found in the Mitcham office, and that relating to a pair of shoes found at the premises where Connelly was arrested. The fourth ground of appeal alleged misdirection as to the evidence adduced in support of the allegation that Connelly had gone into hiding with his co-accused Hilton, after the murder. As we have said, the Court of Criminal Appeal, in giving its reasons for quashing the murder conviction, found it unnecessary to deal with the remaining grounds of appeal. To this should be added that counsel appearing before us are in agreement that the only issue ventilated in the Court of Criminal Appeal was whether the evidence (and the direction thereon) relating to Connelly's alleged presence at the scene of the murder was satisfactory, and that the issue as to murderous intent was not raised. That being so, it is argued, the quashing of the murder conviction is explicable only upon the basis that the Court of Criminal Appeal held that proof of presence at Mitcham had not been established, and this "finding" (as it has been called) applies not only to the murder charge originally preferred, but is fatal also to the second indictment for robbery with aggravation.

That the Court of Criminal Appeal did not itself consider that, in quashing the murder conviction, they were arriving at any "finding" that Connelly had not been proved to be at Mitcham on the relevant date is clear, both from the language employed by Ashworth J. in delivering the judgment of the court, and from the fact that after argument, the court granted leave for the trial on the robbery indictment to proceed. But that cannot prejudice the appellant if in law the effect of what the court then did is as his counsel submits.

The grounds on which this court may quash a conviction, and

the effect of so doing, are dealt with in section 4 (1) and (2) of the Criminal Appeal Act, 1907, in the following terms: "(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred. (2) Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered."

Where this court quashes a conviction ... "the appellant, having by order of this court, on his appeal from his first conviction, had a judgment and verdict of acquittal entered, is in the same position for all purposes as if he had actually been acquitted" (per Lord Reading C.J., in Rex v. Barron¹.)

Does that mean more than that the appellant is thereafter to be treated as if the original jury had acquitted him? If it does not, then, in view of the twofold nature of the defence relied upon at the Central Criminal Court, it cannot, in our judgment, be said that acquittal involved a finding that Connelly was not proved to have been at Mitcham on November 17, for such a verdict might equally have been based on the jury's not being satisfied that, although there, a murderous intent had been established. But it is submitted that as the only issue ventilated in the Court of Criminal Appeal was as to his presence at the scene of the crime, that (and that alone) must have been the ground on which the appeal was allowed and there was accordingly a finding in Connelly's favour to that effect. We find ourselves unable to accept that submission. In the murder appeal this court had to consider whether there had been "a miscarriage of justice" and, if so, whether it nevertheless could be said "that no substantial miscarriage of justice had actually occurred."

1 [1914] 2 K.B. 570, 574; 30 T.L.R. 422, C.C.A.

As was said in Rex v. Cohen and Bateman,² per Channell J.: "There is such a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted. ..."

In such circumstances, this court not only quashes the conviction but, as required by section 4 (2) of the Act of 1907, must"direct a judgment and verdict of acquittal to be entered." In so directing, it does not, in our judgment, arrive at any specific finding regarding any of the ingredients of the offence charged. In Reg. v. Salvi³ Pollock C.J. said: "The acquittal of the whole offence is not an acquittal of every part of it, it is only an acquittal of the whole." These words are equally appealable to a verdict of acquittal entered by this court as to an acquittal resulting from the verdict of a jury. In our judgment, the position is not altered by the fact that the issue ventilated in the Court of Criminal Appeal was simply whether or not the evidence and the legal direction relating to the issue of presence at Mitcham were satisfactory. We accordingly hold that no such finding as is contended on the appellant's behalf was either arrived at by this court or is implicit in its quashing of the murder conviction.

In the light of the foregoing, we turn to consider the four main submissions relied upon before us. As to the first, autrefois acquit, it is not sufficiently comprehensive to say (as in Archbold's Criminal Pleading, Evidence and Practice, 35th ed. (1962), para. 436) that: "The only cases in which a previous acquittal can effectually be pleaded in bar to a subsequent indictment are:- (i) where the acquittal was for the exact offence charged in the subsequent indictment; or (ii) where the subsequent indictment is based on the same acts or omissions in respect of which the previous acquittal was made and some statute directs that the prisoner shall not be tried or punished twice in respect of the same acts or omissions."

As subsequent paragraphs in that most useful work show, the

2 (1909) 2 Cr.App.R. 197, 207-208, C.C.A.

3 (1857) 10 Cox C.C. 481n., 483n.

cases establish that this plea in bar extends, as Lord Reading C.J. said in Barron's case⁴ "not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first inditement." And in Rex v. Kupferberg⁵ Lawrence J. said: "For a plea of autrefois acquit to be maintainable, the offence of which the accused has been acquitted and that with which he is charged must be the same in the sense that each must have the same essential ingredients. The facts which constitute the one must be sufficient to justify a conviction for the other." But whatever test one applies, it cannot, in our judgment, be said correctly that, in the circumstances of this case, the statutory "acquittal" by the Court of Criminal Appeal on the murder charge enables the appellant to plead autrefois acquit in bar to the robbery indictment.

The decisions of this court in Rex v. Norton⁶ have some relevance to this matter. The only issue raised in the trial of the accused for a sexual offence, in the course of which the victim was wounded, was as to the identity of the assailant. The conviction was quashed and Norton was thereafter indicted and convicted for wounding the same girl on the same occasion. Defence counsel submitted to this court that the identity of the assailant was the sole point at issue in both indictments, that by the quashing of the first conviction it had become res judicata that Norton had not committed the sexual offence and that, as it was common ground that the same person committed both offences, he was entitled to rely upon autrefois acquit, and that accordingly the second conviction should be quashed. Dismissing the appeal, Lord Alverstone C.J. said⁷: "There is only one possible view which would have supported the appeal. If the evidence as to the injury shows that it was essential to the commission of the sexual offence, then it may be that a verdict of acquittal for the sexual offence would support a plea of autrefois acquit upon the charge of felonious wounding." It is true that no reference was made to the "identity" point expressly relied on by appellant's counsel, but it is inconceivable that it would not have been dealt with had this court considered that the quashing of the first conviction had the effect which had been contended.

The submission as to "issue estoppel," which was the second

4 [1914] 2 K.B. 570, 574.

5 (1918) 34 T.L.R. 587; 13 Cr. App.R. 166, C.C.A.

6 (1910) 5 Cr.App.R. 65, 197, C.C.A.

7 5 Cr.App.R. 197, 198, C.C.A.

matter advanced on the appellant's behalf, is a somewhat novel one in the criminal courts of this country, although it is being increasingly raised both in the Commonwealth and in the United States of America (see, for example, Harris v. State of Georgia⁸) and is discussed at length in a valuable article "Res Judicata in the Criminal Law" by Dr. Colin Howard in the Melbourne University Law Review ((1961), p. 101).

In Mraz v. The Queen (No. 2)⁹ Dixon C.J. said: "The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact. ... It is enough that an issue or issues have been directly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur. ... And ... this applies in pleas of the Crown."

In Brown v. Robinson¹⁰ Herron and Maguire JJ. said that: "Before issue estoppel can succeed in a case such as this there must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. ... It depends upon an issue or issues having been distinctly raised and found in the former proceeding."

Does issue estoppel avail an accused person in this country? We do not find ourselves, in the circumstances of the present case, called upon to give a definite answer to that question. But, as Lawton J. observed in the course of the argument, it would be deplorable if English law lagged behind in this matter because of a strict rule of pleading. That an issue distinctly raised and decided in civil proceedings here may not generally be permitted to be litigated afresh between the same parties or persons claiming under them is well established; see, for example, Hoystead v. Commissioner of Taxation¹¹ and New Brunswick Railway Co. v. British and French Trust Corporation Ltd.¹² And, as Mr. Justice Holmes said in United States v. Oppenheimer¹³: "It cannot be that the safeguards of the person, so often and so rightfully

8 1941 17 South Eastern Reporter 573.

9 (1956) 96 C.L.R. 62, 68.

10 (1960) S.R.(N.S.W.) 297, 301.

11 [1926] A.C. 155; 42 T.L.R. 207, P.C.

12 [1939] A.C. 1; 55 T.L.R. 260; [1938] 4 All E.R. 747, H.L.

13 (1916) 242 U.S.Rep. 85, 87.

mentioned with solemn reverence, are less than those that protect from a liability in debt." Furthermore, in Sambasivam v. Public Prosecutor, Federation of Malaya,¹⁴ Lord MacDermott said: "the maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings." And it is of some significance that, in Reg. v. Ollis,¹⁵ Wright J., having said that autrefois acquit was an inappropriate plea in the circumstances of that case, added¹⁶: "Nor can there be an estoppel of record or quasi of record, unless it appears by record of itself, or as explained by proper evidence, that the same point was determined on the first trial which was in issue on the second trial." It may be that issue estoppel is the true basis upon which a second trial arising out of the same incident or transaction was held, in such cases as Reg. v. King,¹⁷ not to lie, notwithstanding that autrefois acquit and autrefois convict, as explained in some of the older cases, were not in strictness available to the defendant.

Assuming, without deciding, that such a plea may validly be raised in the criminal courts of this country, even so, as Herron J. expressed it in Reg. v. Clift¹⁸ "... the situation would not often arise in a criminal court, where the very issue of fact upon which the decision rests can be so isolated as to be capable of decision that such issue had been already determined in another previous criminal trial." For the reasons we have already sought to state, these conditions cannot be said to be fulfilled in the present case. For issue estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. "The doctrine (of estoppel) cannot be made to extend to presumptions or probabilities as to issues in a second action which may be, and yet cannot be asserted beyond all possible doubt to be, identical with those raised in the previous action" (perLord Maugham L.C. in the New Brunswick case¹⁹). It is this impermissible extension which is involved, in our judgment, in the issue estoppel point here raised on behalf of the appellant. We accordingly hold that the submission is invalid.

The third point raised by the appellant's counsel is closely linked with those already dealt with. It was submitted that the

14 [1950] A.C. 458, 479; 66 (Pt. 2) T.L.R. 254, P.C.

15 [1900] 2 Q.B. 758; 16 T.L.R. 477; 19 Cox C.C. 554.

16 [1900] 2 Q.B. 758, 769.

17 [1897] 1 Q.B. 214; 13 T.L.R. 27; 18 Cox C.C. 449.

18 (1952) 52 S.R.(N.S.W.) 213, 217.

19 [1939] A.C. 1, 20.

conviction on the robbery indictment was wholly inconsistent with the quashing by this court of the conviction on the murder indictment. That the court will interfere to prevent inconsistent verdicts is well established; see, for example, Rex v. Cooper and Compton.²⁰ In this connection we were referred to Diplock J.'s direction to the jury in Reg. v. Beach and Owens²¹ that autrefois acquit was established in answer to a charge of conspiracy to pervert the course of justice, following upon this court having quashed ([1957] Crim.L.R. 687) the conviction of the two accused for having respectively attempted to pervert the course of justice and with aiding and abetting that offence. But each case turns on its own facts. In the present case, no inconsistency can be said to exist between the quashing by this court of the murder conviction and the conviction by the jury on the robbery charge except upon the one ground advanced, namely, that the quashing amounted to and involved a finding that Connelly was not proved to have been present at Mitcham. We have, I hope, already sufficiently indicated our reasons for holding that no such inconsistency is involved.

We turn to consider the fourth point relied on by appellant's counsel. The question primarily raised is whether John Stephenson J. had any discretion which entitled him to refuse a trial on the second indictment. The judge originally thought he had, and Crown counsel originally thought he had, though that concession was later retracted. Appellant's counsel has submitted that on this occasion first thoughts were best. He contends that, whatever may be a judge's powers in relation to preventing the trial of a first indictment, he clearly has a discretion if he considers that it would be unfair and unjust for an accused person to be retried on an issue upon which a previous acquittal was founded, even though there was no specific finding on that issue. Reliance is placed on Rex v. Miles,²² where Lord Alverstone C.J. said: "The judge has a discretion ... and if, when a man has been acquitted, he considers the acquittal should make an end of the whole case, he can express his opinion," and to some observations of Lord Reading C.J. in Rex v. Barron.²³ We were also referred to Reg. v. Tancock²⁴ and Rex v. Baines,²⁵ where Walton J. said that, "The old Queen's Bench had ample jurisdiction over all criminal proceedings."

20 (1947) 63 T.L.R. 561; [1947] 2 All E.R. 701; 32 Cr.App.R. 102, C.C.A.

21 The Times, Sept. 26, 1957.

22 (1909) 3 Cr.App.R. 13, 15, C.C.A.

23 [1914] 2 K.B. 570, 573.

24 (1876) 13 Cox C.C. 217.

25 [1909] 1 K.B. 258, 262.

But, as always, these cases turn on their particular facts. In our judgment a judge is not entitled to refuse the trial of any indictment, be it a first or second indictment, merely because he thinks the trial ought not to proceed. He may do this only in accordance with established principles. To hold otherwise involves dangers too obvious to need stating. Having said in Reg. v. Middlesex Quarter Sessions (Chairman), Ex parte Director of Public Prosecutions²⁶ that, "the prosecution had a right to present their case," Lord Goddard C.J. added, in Reg. v. London (County) Quarter Sessions, Ex parte Downes²⁷: "Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try. ..." Although Mr. Hawser contended that this classification ought not to be regarded as exhaustive, we regard it as a valuable and complete exposition of the law on the matter. But even if counsel is right, in our judgment it cannot be said, for the reasons we have already indicated, that the trial of the appellant on the robbery indictment involved the relitigation of an issue upon which the quashing of the murder conviction was founded. So to say is mere conjecture. We accordingly hold that neither John Stephenson J. nor Nield J. had any discretion to refuse that the trial of the second indictment proceed.

The summing-up of Nield J. was criticised on many grounds. It might be sufficient for this court to say that in our judgment it was a conspicuously fair, accurate and helpful summing-up and that none of the criticisms advanced have been substantiated. But out of deference to the industry and ability with which appellant's counsel has presented his case, we feel that mention should be made of two of the matters he relied on. It is, first, said that the judge was wrong in allowing the prosecution to give evidence of and rely upon certain oral statements alleged to have been made by the appellant to certain police officers, inasmuch as these same statements had been relied upon by the prosecution

26 [1952] 2 Q.B. 758, 767; [1952] 2 T.L.R. 135; [1952] 2 All E.R. 312; 36 Cr.App.R. 114, C.C.A.

27 [1954] 1 Q.B. 1, 6; [1953] 3 W.L.R. 586; 37 Cr.App.R. 188, C.C.A.

in the first trial for the purpose of endeavoring to prove that the appellant was guilty of murder, a charge upon which he was ultimately acquitted by this court. Secondly, it is said that the judge was wrong in refusing to allow the defence to refer to and rely on the fact that the appellant had been acquitted on the murder charge, "and the circumstances in which and the issue upon which he was so acquitted." These criticisms were said to be supported by the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya²⁸ and that of the Supreme Court of Georgia in Harris v. State of Georgia,²⁹ but in our judgment the issues involved in these cases were wholly different from those we are called upon to consider and the cases are not in point. The oral statements imputed to Connelly had a distinct relevance on the issue of whether he was present at Mitcham, that issue was involved in and common to both indictments, and the fact that the first indictment had ultimately resulted in a quashing of the conviction thereon by this court in no way prevented the same oral statements from being adduced in evidence on the trial of the second indictment. We accordingly hold that they were rightly admitted. Whether or not the Crown was being excessively technical in objecting to its being elicited that Connelly had been acquitted on the murder conviction is nothing to the point as to whether such evidence was strictly admissible. In our judgment it was not. Even more inadmissible would it have been to seek to elicit "the issue upon which he was acquitted."

For these reasons we hold that none of the submissions advanced for the quashing of this conviction have been made good. The appeal against conviction is accordingly dismissed.

The appeal against sentence is, however, based on more cogent grounds. The judge was clearly right in saying that armed robbery is a grave offence, and one of a character which is rife at the present time. Furthermore, the appellant, who is 38 years old, has a number of previous convictions, including one 18 years ago for robbery with violence. But he suffers from disseminated sclerosis, a progressive disease, and has undergone the ordeal of being convicted of murder, of having that conviction quashed and then hearing one judge express the opinion that he ought not to be proceeded against a second time, and finally, after an adjournment of over a month, being brought to trial before

28 [1950] A.C. 458, P.C.

29 (1941) 17 South Eastern Reporter 573.

another judge. It has been urged upon us that, in sentencing the appellant to 15 years' imprisonment, the judge was treating him as one of a party out to kill if needs be, and that notwithstanding his acquittal on the murder charge. Following on the appellant's acquittal of murder, this court has felt impelled as a matter of law to put out of mind the fact that during this armed robbery a man was killed by one of the robbers. The only evidence against the appellant about the intended use of violence was set out in one of Kelly's written statements which by oral admissions Connelly accepted as being true. This statement was to the effect that the robbers had taken unloaded guns to the scene of the crime with intent to frighten but not to injure. Had there been any evidence that the appellant had intended to injure, the question for consideration might well have been whether the sentence was severe enough. In those circumstances, gravely reprehensible though his conduct unquestionably was, this court is of the opinion that the sentence passed was excessive and should be reduced. The appeal against sentence is accordingly allowed and one of 10 years' imprisonment substituted.

Solicitors: T. W. James do Wheater; Director of Public Prosecutions.

M. M. H.

The appellant appealed to the House of Lords.

C. L. Hawser Q.C. and A. F. Waley for the appellant. In the Court of Criminal Appeal on the first appeal the only issue gone into was whether the evidence, relating to the appellant's alleged presence at the scene of the murder, and the direction to the jury on that matter was satisfactory. The question of intent to murder was not raised. So it can be taken that the appeal was allowed on the other point.

The point of law of general public importance defined in the certificate under the Act of 1960 comprises three matters: (1) The question of the nature and extent of the doctrine of autrefois acquit; (2) (a) the question whether the criminal law recognises the doctrine of issue estoppel, if it is different from autrefois acquit; (b) the question whether it operates in this case; (3) the question whether the judge has any discretion in matters like this to stop the trial of the second indictment when he finds that further process would be unjust, unfair or oppressive, and, if so, what discretion.

Two further questions also arise: (4) Whether it is open to the Crown in the second trial to adduce, for the purpose of establishing robbery, evidence of admissions alleged to have been made by the appellant, which were relied on at the first trial for the purpose of establishing a case of murder; (5) Whether it was right for the judge at the second trial to order that the appellant was not to be at liberty to refer to the basis on which he was convicted at the first trial and to adduce evidence as to the making of his alleged statements. Both these questions should be answered in the negative.

This case started with the trial of two issues, robbery and intent to murder. In the Court of Criminal Appeal after the first trial the issue of robbery became isolated and the court decided in the appellant's favour on that issue alone. It held that there was a substantial miscarriage of justice and quashed the conviction, entering a verdict of aquittal on the issue of murder. The legal effect of quashing the conviction was the same as an acquittal. The issue cannot be relitigated by the Crown. The principle nemo debet bis vexari applies in criminal as well as in civil cases.

For the law relating to autrefois acquit see Archbold's Criminal Pleading, 25th ed., paras. 436, 438, 446, 449 (pp. 149-150, 154-156). It was in accordance with a rule of practice that the appellant was not tried on both the murder charge and the

robbery charge at once. If the two charges had been tried together the jury might have found him guilty of either or both and the Court of Criminal Appeal could have quashed both convictions. To convict the appellant of robbery now would be inconsistent with the acquittal which negatived in effect his being guilty of robbery by force.

Even if this is not strictly a case of autrefois acquit or issue estoppel, the court has jurisdiction to prevent abuse of its powers because to relitigate the issue is unfair to the accused. The evidence given at the second trial was substantially the same as that given at the first. Neither side has an absolute right to the verdict of a jury. For example, the Attorney-General can enter a nolle prosequi. It is entirely in the court's discretion to decide whether or not this case should proceed.

As to the authorities on autrefois acquit, Reg. v. Gould¹ illustrates issue estoppel and is the foundation of this part of the law: "If a party charged with the crime of murder committed in the perpetration of a burglary, be generally acquitted on that indictment, he cannot afterwards be convicted of the burglary with violence." For the other offences of which a man charged with murder may be found guilty, see Archbold's Criminal Pleading, 25th ed., para. 4323 (pp. 1663-1664): see also para. 2546 (p. 1019). As to the ingredients of robbery, see paras. 1761 and 1763 (pp. 701-702). If a man is acquitted of robbery with violence the Crown is not at liberty to avoid the plea of autrefois acquit by subsequently charging him with another offence, say, burglary, leaving out some of the ingredients of the greater offence which has been already dealt with. As to autrefois convict, see Reg. v. Walker.² In Reg. v. Bird³ it was established that it is permissible to analyse the case to find what the decision of the jury in the first case really was, and, where it is possible to isolate an issue, autrefois acquit will operate as a plea in bar. See also Reg. v. Elrington⁴; Reg. v. Salvi⁵; Reg. v. Morris⁶ and Wemyss v. Hopkins.⁷ Reg. v. Tancock⁸ is not a case of autrefois acquit in the strict sense but one in which the judge exercised his discretion. Reg. v. O'Brien⁹ is of little assistance. Reg. v. Gilmore¹⁰ is rather more important. Reg. v. SernŽ¹¹

1 (1840) 9 C. & P. 364.

2 (1843) 2 M. & Rob. 446, 457.

3 (1851) 2 Den. 97, 130-131, 143-144, 151-152.

4 (1861) 1 B. & S. 688.

5 (1857) 10 Cox C.C. 481n.

6 L.R. 1 C.C.R. 90, 92-93.

7 (1875) L.R. 10 Q.B. 378, D.C.

8 (1876) 34 L.T. 455.

9 (1882) 46 L.T. 177.

10 (1882) 15 Cox C.C. 85, 86-87.

11 (1887) 16 Cox.C.C. 311.

is relied on. Reg. v. Friel¹² does not advance the matter. Hawkins J. in Reg. v. Miles¹³ said that conviction is "a bar to all further proceedings for the same offence." There "offence" should be read as meaning "matter." In Reg. v. Hilton¹⁴ after a summons for assault against the defendant had been dismissed the person alleged to have been assaulted died. On production of the certificate of dismissal it was held that the defendant could not be tried on a charge of manslaughter. The dismissal negatived a criminal assault, but conviction would have established it. Reg. v. Grimwood¹⁵ is is in favour of the appellant. Reg. v. King¹⁶ is important. It was a case of issue estoppel and the court analysed the issues. Reg. v. Ollis¹⁷ is distinguishable, because it was not possible there to determine the ground of the first acquittal. Welton v. Taneborne¹⁸ indicates that one may go behind the charges and see what the evidence was. Rex v. Miles¹⁹ indicates that the judge has a discretion to stop a second trial if he thinks it right on the ground of fairness and justice. The strongest case against the appellant relied on by the Crown is Rex v. Norton.²⁰ If necessary, the House of Lords should overrule it, though it might be held to be distinguishable from the present case because the assault with the stone was not essential to the sexual offence. But in the present case the Crown essentially alleged, not an independent murder, but robbery by the appellant which incidentally involved murder. On the facts of this case, if the robbery were struck out, there could not be a conviction of murder; one cannot strike out the robbery without striking out the whole foundation of the murder charge. Rex v. Barron²¹ indicates that estoppel is not confined to estoppel by record. Where a previous acquittal necessarily involved a finding on an essential element of the second offence charged, the accused cannot be convicted because the verdict would involve a contrary finding on that essential element. The true question is whether on the first trial the accused was in peril of being convicted of the same crime for which he was in peril of being convicted on the second trial: per Avory J. in Rex v.

12 (1890) 17 Cox.C.C. 325.

13 (1890) 24 Q.B.D. 423, 427, 429-431, 435-436; 6 T.L.R. 186.

14 (1895) 59 J.P. 778.

15 (1896) 13 T.L.R. 70.

16 [1897] 1 Q.B. 214, 218, 219; 13 T.L.R. 27.

17 [1900] 2 Q.B. 758, 763, 768; 16 T.L.R. 477.

18 (1908) 99 L.T. 668; 24 T.L.R. 873, D.C.

19 (1909) 3 Cr.App.R. 13, 15, C.C.A.

20 [1910] 2 K.B. 496, 501; 25 T.L.R. 550; 5 Cr.App.R. 65, 197, C.C.A.

21 [1914] 2 K.B. 570, 573, 575; 30 T.L.R. 422, C.A.

Tonks.²² See also Rex v. Kupferberg,²³ which illustrates the principle nemo debet bis vexari. Rex v. Kendrick and Smith²⁴ and Flatman v. Light²⁵ do not carry the argument much further. Rex v. Cooper and Compton²⁶ is important as showing that where the Crown seeks to prove a different charge on the same substantial facts the court will not allow the trial to go forward, Rex v. Thomas²⁷ does not help much. Reg. v. Beach²⁸ was a remarkable and striking case; the court looked at the facts behind the charges and found that, in the particular circumstances, the governing issues determined the guilt or innocence of the accused in the case of two totally different offences. Reliance is placed on what Lord Parker C.J. said in Reg. v. Hogan.²⁹

As to issue estoppel, either it already exists in English law or, if it does not yet exist, the House of Lords should now recognise it. See Reg. v. O'Keefe³⁰ and Rex v. Wilkes.³¹ Issue estoppel rests on the basic principles of nemo debet bis vexari and res judicata. Once an issue can be isolated, issue estoppel operates. As to the principles of res judicata and issue estoppel, see New Brunswick Railway Co. v. British and French Trust Corporation Ltd.³²

Section 4 (2) of the Criminal Appeal Act, 1907, puts a man whose appeal has been allowed in the same position as if he had been acquitted by a jury. The court's decision must be treated as a final determination of the issue before it, and here the issue was the robbery. The result of the proceedings was that the court entered a verdict of Not Guilty which was the same as if the jury had acquitted the appellant. Issue estoppel accordingly applied. The mere fact that the offences charged are different is not enough to defeat the plea of autrefois acquit. The present case falls within the principle of Sambasivam v. Public Prosecutor, Federation of Malaya³³ that the plea of autrefois applies whenever the prosecution, to prove the offence alleged in the first indictment, must establish that the accused has been guilty of

22 [1916] 1 K.B. 443, 447; 32 T.L.R. 137, C.C.A.

23 (1918) 13 Cr.App.R. 166, 168; 34 T.L.R. 587, C.C.A.

24 (1931) 144 L.T. 748, C.A.

25 [1946] K.B. 414; 62 T.L.R. 456; [1946] 2 All E.R. 368, D.C.

26 (1947) 63 T.L.R. 561, 563; [1947] 2 All E.R. 701, C.C.A.

27 [1950] 1 K.B. 26; 65 T.L.R. 586; [1949] 2 All E.R. 662, C.C.A.

28 [1957] Cr.L.R. 687, C.C.A.; (1957) The Times, Sept. 26 p. 2.

29 [1960] 2. Q.B. 513, 517-518; [1960] 3 W.L.R. 426; [1960] 3 All E.R. 149, C.C.A.

30 (1894) 15 E.R.(N.S.W.) 1, 9, 17.

31 (1948) 77 C.L.R. 511, 518-519.

32 [1939] A.C. 1; 55 T.L.R. 260; [1938] 4 All E.R. 747, H.L.

33 [1950] A.C. 458, 471-472; 66 T.L.R. (Pt. 2) 254, P.C.

an offence of which he has been previously acquitted or convicted. Much reliance is placed on the general approach in that case.

Issue estoppel can operate (1) as a plea in bar or (2) by allowing the prosecution to open its case but not allowing it to lead evidence on an issue already decided or (3), if it arises in the course of the case, by directing the jury to acquit. This is an aspect of the court's inherent jurisdiction not to allow abuse of its process by relitigating an issue already decided. See Halsbury's Laws of England, 3rd ed., Vol. XV, paras. 362, 357 and 387 (pp. 187, 184-185 and 207); Kemp v. The King³⁴ and Reg. v. Clift,³⁵ which is a clear example of the application of issue estoppel. The same principle operates in the case of an acquittal by the Court of Criminal Appeal; otherwise a man would be acquitted for one purpose, but not for another. In the present case the case presented in the second trial was exactly the same as in the first and the appellant's acquittal in the Court of Criminal Appeal was founded on one issue only. Autrefois acquit is issue estoppel and nothing else. See Rex v. de Kuyper³⁶; Reg. v. Flood³⁷; Mraz v. The Queen (No. 2)³⁸; Brown v. Robinson³⁹ and "Res Judicata in the Criminal Law" by Colin Howard, Melbourne University Law Review (1961), pp. 101, 102-103, 120.

Issue estoppel is applicable in England, because, just as one cannot try a man again for the same offence, so one cannot try him again on the same issue. The principle that it is in the public interest that litigation should cease applies in criminal law as in civil law. Support is found in the American cases: see United States v. Oppenheimer⁴⁰; Sealfon v. United States⁴¹ and Harris v. State of Georgia.⁴²

On the right approach to section 4 (1) (2) of the Criminal Appeal Act, 1907, see Rex v. Wann⁴³ and Rex v. Cohen and Bateman.⁴⁴

The Court of Criminal Appeal in the decision which is now appealed from held that no issue had previously been decided in the appellant's favour. But that produces an inconsistency. The verdict of acquittal of murder was based only on his not

34 (1951) 83 C.L.R. 431, 432.

35 (1952) S.R.(N.S.W.) 213, 215, 220.

36 (1948) S.A.S.R. 108, 110, 112.

37 (1956) Tas.S.R. 95.

38 (1955) 93 C.L.R. 493; (1956) 96 C.L.R. 62, 68, 71.

39 (1960) 60 S.R.(N.S.W.) 297.

40 (1916) 242 U.S. 85, 87.

41 (1948) 332 U.S. 575, 578.

42 (1941) 17 South Eastern Reporter 563.

43 (1912) 107 L.T. 462; 28 T.L.R. 240, C.C.A.

44 (1909) 2 Cr.App.R. 197, C.C.A.

having been there. The jury held that all those men in the office had the intent to murder. If they acquitted one of the men charged, it could only have been on the ground that he was not there. The appellant should not be in a worse position because he has been acquitted by the Court of Criminal Appeal. Its decision necessarily involves that he was not present and he cannot be retried on that issue. Before the Court of Criminal Appeal no question arose as to murderous intent. The court allowed the appeal on the issue of the appellant's presence. From this acquittal by the Court of Criminal Appeal an acquittal of manslaughter follows because on the murder indictment he could have been convicted of manslaughter. On the second indictment the charge of robbery cannot be separated from the supervening killing and a conviction would involve a finding inconsistent with the acquittal of manslaughter. If the appellant were held guilty of the robbery he must have been at least guilty of the manslaughter of which he was acquitted. Accordingly autrefois acquit applies. The Court of Criminal Appeal should deal with inconsistent verdicts in two different trials in the same way as it deals with inconsistent verdicts in the same trial. Accordingly, the second conviction should be quashed.

Rex v. Betts and Ridley⁴⁵ illustrates the guilt incurred when a killing results from a common design to commit robbery with violence.

The court was entitled to look at the whole of the proceedings in the previous trial to see what it was all about. Quite apart from the doctrine of autrefois acquit it would be entitled to say that a verdict of guilty in the second trial was inconsistent with the result of the first.

The appellant's submissions on issue estoppel are: (1) The verdict of acquittal in the Court of Criminal Appeal has at least as much effect as a jury's acquittal. In section 4 (2) of the Criminal Appeal Act, 1907, the language deliberately used says that the court shall not only quash the conviction but also direct a verdict of acquittal to be entered. (2) A verdict of acquittal cannot amount to something less than Not Guilty, for in English law there is no half-way house. (3) It would be grossly unfair if issue estoppel operated on a jury's verdict of acquittal, but not on one in the Court of Criminal Appeal, because a man who had not had a fair trial and whose conviction was quashed would be in a worse position than one who had had a fair trial and who

45 (1930) 144 L.T. 526, C.C.A.

had been acquitted by a jury. (4) If that were so it would introduce a very illogical and inconsistent application of the law. On the strict application of autrefois acquit a man cannot be indicted for an identical offence. It would be inconsistent if he could be indicted on the same facts as those already determined. (5) Reliance is placed on Mraz v. The Queen⁴⁶ and Reg. v. O'Keefe.⁴⁷

Alternatively, there was a discretion in the court to stop the second trial. In this matter there is no distinction between civil and criminal courts. The court has always exercised a jurisdiction to control its own process. Its reserve of powers can be drawn on when it is necessary to prevent abuse of its process. John Stephenson J. considered that in the particular circumstances of this case it would be unfair to try the appellant again, and the Crown has abused the process of the court by insisting on this case being tried. This branch of the matter does not depend on res judicata.

Here, if the charge of robbery had been included as a count in the indictment and that charge had been tried with the murder charge, the principle of autrefois acquit would have applied. Under rule 3 of Schedule I to the Indictments Act, 1915, charges for any offences may be joined in the same indictment if they are founded on the same facts: see Archbold's Criminal Practice, 25th ed., para. 130, p. 60. It was only the rule of practice based on Rex v. Jones⁴⁸ that prevented the inclusion of the charge of robbery in the present case. This rule is inconvenient and should not have been applied. The Crown should not take advantage of its application in this case.

As to the court's discretion, see Rex v. Lynch.⁴⁹ The judge has an inherent jurisdiction to prevent a case coming for trial if he thinks it unfair or oppressive for it to do so. In this respect the Crown is in no different situation from any other litigant. It does not matter whether the court's discretion is exercised by quashing the indictment or otherwise. All common law rules emanating from the breasts of the judges are in origin discretionary.

As to the court's power to see that its process is not abused,

46 96 C.L.R. 62, 70.

47 15 S.R.(N.S.W.) 1.

48 [1918] 1 K.B. 416, C.C.A.

49 [1903] 1 K.B. 444; 19 T.L.R. 163, C.C.A.

see Metropolitan Bank Ltd. v. Pooley⁵⁰; Willis v. Earl of Beauchamp⁵¹; Reichel v. Magrath⁵²; Stephenson v. Garnett⁵³; Greenhalgh v. Mallard⁵⁴; Wright v. Bennett⁵⁵ and Rex v. Baines.⁵⁶ Reg. v. Chairman, Middlesex Quarter Sessions, Ex parte Director of Public Prosecutions⁵⁷ and Reg. v. Chairman, County of London Quarter Sessions, Ex parte Downes⁵⁸ do not really help on this point, which is the counter-part of res judicata in a civil court.

In a case such as this the House of Lords is not limited to the consideration of the points certified by the Court of Criminal Appeal: see Attorney-General for Northern Ireland v. Gallagher.⁵⁹ It is within the discretion of the House to consider the two additional matters, points (4) and (5) already referred to.

A. F. Waley following. The question arises how autrefois acquit is to be applied where a conviction in the second trial would be inconsistent with that in the first. On this see Bird's case⁶⁰ and Sealfon's case.⁶¹ The true principle is that one must look at all the circumstances behind the record to see what was really being decided at the first trial.

Sir Peter Rawlinson Q.C., S.-G., J. M. Griffith-Jones, Alastair Morton and Patrick Milmo for the Crown. It is submitted: (1) As to autrefois acquit, it is clear that there has been some extension of the principles governing it since Hale's Pleas of the Crown (1778 ed.), Vol. II, p. 240. But in adopting issue estoppel the Australian authorities have extended it further than is proper in a way not consistent with the law of England. (2) As to issue estoppel as an extension of autrefois acquit, this is a doctrine designed to analyse the facts in a way they would not be analysed in England. (3) As to discretion, the court in the exercise of its criminal jurisdiction has not the discretion claimed by the appellant. There are historical safeguards for the protection of the accused at every stage, and an indictment, once presented, must be tried, unless there is a motion to quash it or

50 (1888) 10 App.Cas. 210, 214-215, 220-221, H.L.

51 (1886) 11 P.D. 59, 63; 2 T.L.R. 270, C.A.

52 (1889) 14 App.Cas. 665, 668; 5 T.L.R. 552, H.L.

53 [1898] 1 Q.B. 677, 680.

54 [1947] 2 All E.R. 255, C.A.

55 [1948] 1 All E.R. 227, 229-230, C.A.

56 [1909] 1 K.B. 258, 261; 25 T.L.R. 79, D.C.

57 [1952] 2 Q.B. 758, 767; [1952] 2 T.L.R. 135; [1952] 2 All E.R. 312, D.C.

58 [1954] 1 Q.B. 1, 4; [1953] 3 W.L.R. 586; [1953] 2 All E.R. 750, D.C.

59 [1963] A.C. 349, 367, 369; [1961] 3 W.L.R. 619; [1961] 3 All E.R. 299, H.L. (N.S.).

60 2 Den. 94, 149-150, 155, 214-215, 221-222.

61 332 U.S. 575, 579.

a demurrer or a plea in bar or unless the Attorney-General enters a nolle prosequi or unless there is no jurisdiction. Both the prosecution and the accused have a right to have the indictment duly tried. There is no discretion in a judge not to try an indictment.

The doctrine of autrefois comes under four different heads: (1) When it is sought to try the same offence, though not in the same terms; (2) where the act or omission is the same, where there is a statutory provision that a person shall not be tried twice for the same act or omission; (3) where the offence is one of which the accused could have been convicted on the same indictment: see Rex v. Barron⁶²; (4) by an extension, where to prove the offence alleged in the second indictment the Crown must prove that the accused has committed an offence of which he has already been convicted or acquitted, provided that at the first trial the offence is complete: see Reg. v. Morris.⁶³

As to this last, one is entitled to go behind the record. In some measure that was always necessary, even in the old days. What one must look for is the offence; in the English cases one does not go beyond the record to identify the offence. The Australian cases go further. The purpose for which one can look beyond the record is laid down in Bird's case.⁶⁴

There might be a charge of murder arising from rape and if it were shown that the girl had died from some other cause the court would direct an acquittal of the murder. Because of the existing rule of practice there would be no other count in the murder indictment. In that case a new inditement for rape would not be barred by autrefois acquit.

In England one can go behind the record for a limited purpose. Having discovered what was proved in the first trial, one can only make a limited use of it. One can look at the facts to see whether the offences were the same, but not to find whether their factual substance was the same. One is looking for only one matter, the essential ingredient of the offence: see Reg. v. Salvi⁶⁵ and Reg. v. Miles.⁶⁶ If the wider Australian rule applied, the second Miles case⁶⁷ and Reg. v. Norton⁶⁸ should have been decided differently and would now have to be overruled.

62 [1914] 2 K.B. 570.

63 L.R. 1 C.C.R. 90.

64 2 Den. 94, 153-157.

65 10 Cox.C.C. 481n, 482n.

66 24 Q.B.D. 423.

67 3 Cr.App.R. 13.

68 [1910] 2 K.B. 496.

See also Gilmore's case⁶⁹ and Gould's case.⁷⁰ Wemyss v. Hopkins⁷¹ does not help the appellant's argument.

If in order to prove X offence one must prove Y offence, then for this purpose those offences are substantially the same, and one must ask whether the accused has been in jeopardy of conviction of that other offence, so as to decide whether autrefois acquit or autrefois convict applies. See Broom's Legal Maxims, 10th ed., pp. 223-224; Reg. v. Elrington⁷²; Reg. v. Tancock⁷³; Reg. v. Gilmore⁷⁴; Reg. v. Miles⁷⁵ and Stephen's Digest of the Law of Criminal Procedure, 1883 ed., art. 265, p. 127. Reg. v. Grimwood⁷⁶ on its facts does not put the Crown's principle in jeopardy, Reg. v. King⁷⁷ is not either against the Crown's contentions or for the appellant's because the procedure there was very unusual and would not recur. Reg. v. Ollis⁷⁸ is not an authority against the Crown; it dealt with admissibility of evidence and it is hard to see how issue estoppel could have arisen. Reliance is placed on Reg. v. Hutchings.⁷⁹ Welton v. Tanneborne⁸⁰ was wrongly decided. In the second Miles' case⁸¹ there is no suggestion of issue estoppel and the case fits in with the Crown's submission on the fourth head. Rex v. Barron⁸² and Rex v. Kupferberg⁸³ are relied on. Reg. v. Beach⁸⁴ does not show that the Crown's submission is wrong, nor does it help the appellant on issue estoppel. Rex v. Kendrick and Smith⁸⁵ puts the matter on its true basis; what matters in autrefois acquit is the offence which is charged. That case is inconsistent with issue estoppel and so is Flatman v. Light.⁸⁶ In Rex v. Cooper and Compton⁸⁷ the verdicts were clearly inconsistent on the facts. See also Rex v. Thomas.⁸⁸ The authorities show that the principle of autrefois acquit goes no further than the Crown is here submitting.

In Mraz v. The Queen⁸⁹ a subtle analysis of the jury's verdict was undertaken to show that no issue had been decided in he defendant's favour. If it were held that the principle of

69 15 Cox.C.C. 85.

70 9 C. & P. 364.

71 L.R. 10 Q.B. 378.

72 1 B. & S. 668, 696.

73 34 L.T. 455.

74 15 Cox.C.C. 85.

75 24 Q.B.D. 423, 426, 428, 430-436.

76 13 T.L.R. 70; 60 J.P. 809.

77 [1897] 1 Q.B. 214.

78 [1900] 2 Q.B. 758.

79 (1881) 6 Q.B.D. 300, 304-305, 306.

80 99 L.T. 668, 669, 670.

81 3 Cr.App.R. 13.

82 [1914] 2 K.B. 570.

83 13 Cr.App.R. 166.

84 [1957] Crim.L.R. 687, C.C.A.; (1957) The Times, Sept. 26, p. 2.

85 144 L.T. 748, 751, 752.

86 [1946] 1 K.B. 415.

87 63 T.L.R. 561.

88 [1950] 1 K.B. 26.

89 92 C.L.R. 62, 68.

issue estoppel did apply in England, the conditions essential to its operation, as illustrated in that case, would have to be applied, namely, that the previous judgment must be conclusive on issues distinctly raised and found. One cannot analyse a jury's verdict unless one knows what part of the evidence they have accepted or rejected. To do that one would have to go into the jury room. Issue estoppel would constitute a formidable introduction into English law, involving the revision of a tremendous amount of material. It would lead ultimately to putting express questions to the jury and giving every accused person the right to a special verdict.

As to the inherent jurisdiction of the court to stay proceedings which are an abuse of its process, see Annual Practice, 1963, p. 577 (R.S.C., Ord. 25, r. 4) and Annual Practice, 1964, pp. 408-409 (R.S.C., Ord. 18, r. 19 (1)). In criminal matters it is of great importance constitutionally that a private person may lay an information and be bound over by a magistrate to prosecute. There could be circumstances in which a public authority did not wish to prosecute and then a private prosecution may be tried. There can be no abuse in the mere allegation that a crime has been committed; the court will investigate that. In criminal law there are recognised safeguards for the accused who may not be committed for trial. Although in civil matters there exists the inherent jurisdiction relied on by the appellant, there never was an inherent jurisdiction in a criminal court to stop the trial of an indictment which is properly before it, unless one of the recognised pleas is available. One former safeguard of the accused was the power of the grand jury to return "no true bill." As to the abolition of grand juries and the subsequent procedure for indictment, see sections 1 and 2 and Schedule II to the Administration of Justice (Miscellaneous Provisions) Act, 1933 (Archbold's Criminal Pleading, 25th ed., pp. 67 et seq.) Magistrates must commit for trial if this procedure is in order and if there is proper evidence which they accept. In section 1 of the Vexatious Actions Act, 1896, the words "legal proceedings" do not include criminal proceedings: see In re Boaler.⁹⁰ As to the right to present bills of indictment, see Stephen's Digest of Criminal Procedure, art. 191, p. 121. In Reg. v. Chairman, Middlesex Quarter Sessions, Ex parte Director of Public Prosecutions⁹¹ there is no reference to any such power of the court in its

90 [1915] 1 K.B. 21; 30 T.L.R. 580, C.A.

91 [1952] 2 Q.B. 758.

inherent jurisdiction as the appellant here suggests. Nor is there in Reg. v. Chairman, County of London Quarter Sessions, Ex parte Downes.⁹² The only authority supporting the appellant's contention apart from the second Miles case⁹³ is Rex v. Barron.⁹⁴ The Crown adopts what was said on this point in the Court of Criminal Appeal in the present case.⁹⁵ The sanction against oppressive prosecutions lies in due process of law and judicial decision. The danger of abuse is a matter for the Crown, which can be trusted not to abuse its powers. In the case of abuse by a private prosecutor, a nolle prosequi will be entered.

[LORD REID intimated that their Lordships did not require to hear argument on the appellant's points (4) and (5).]

J. M. Griffith-Jones following. The jury could have acquitted the appellant on a ground other than a finding that he was not at the place of the crime. It would not have been fanciful if the jury had acquitted the appellant of murder, not on that ground, but because he had not the necessary intent. On the evidence they could not have convicted him of manslaughter; it was either guilty of murder or acquittal.

Issue estoppel, if it is to be applied, is rather a ground of law on which a conviction can be quashed on appeal than a plea in bar: see section 4 (1) of the Criminal Appeal Act, 1907. There is insuperable difficulty in deciding such a point before the accused has even pleaded and before the issues are clearly defined. It would require an analysis of the evidence, the speeches and the summing-up in the previous case. It is an almost impossible task for the jury to decide the matter; it is far more suitable for the court to decide it. If the matter is to be decided by the jury, is it to be the same jury as would try the indictment if the plea failed?

As to the principles of autrefois acquit or convict, the courts have always examined the essential ingredients of the first and the second offences charged. The principle applies: (1) where the previous conviction is of an offence consisting of all the essential elements of the second offence; (2) where the previous acquittal or conviction was of an offence based on the same act as the second charge: see Archbold's Criminal Pleading, 25th ed., para. 437, p. 149; (3) where on the previous acquittal the accused could have been convicted of the offence subsequently charged;

92 [1954] 1 Q.B. 1, 4 et seq.

93 3 Cr.App.R. 13, 15.

94 [1914] 2 K.B. 570, 575.

95 Ante, p. 1271; [1963] 3 W.L.R. 839, 851-852; [1963] 3 All E.R. 510, C.C.A.

(4) where there was a previous acquittal or conviction of an offence and that acquittal or conviction necessarily involved a finding of one of the essential elements of the offence subsequently charged: see Reg. v. Grimwood⁹⁶; (5) where there is a previous conviction of an offence and that conviction necessarily involves a finding that the accused did not have the intent necessary to the offence subsequently charged.

The rule laid down in Rex v. Jones⁹⁷ that a second charge is never to be combined in one indictment with a charge of murder was extended in Rex v. Large.⁹⁸ It was properly followed in the present case. As to the joinder of several offences in different counts, see section 4 and Schedule I to the Indictments Act, 1915 (Archbold's Criminal Pleading, para. 130, pp. 59-60).

C. L. Hawser Q.C. in reply. The maxim nemo debet bis vexari has two aspects - res judicata and issue estoppel. They mean that one cannot relitigate the same issue. But some cases do not always fall within either of these principles and then the courts exercise their inherent jurisdiction to prevent abuse of their process. This jurisdiction is not done away with by the Rules of the Supreme Court. It enables the courts to deal with border-line cases by preventing a trial from taking place at all. This inherent jurisdiction is not limited to an examination of the formal record, and the court can look into the facts. Stephenson v. Garnett⁹⁹ is based on inherent jurisdiction, and Wright v. Bennett¹⁰⁰ is a striking example of it. There is no difference between the exercise of these powers in a civil and a criminal court. Autrefois acquit is an example of judge-made law, a check on the power of the Crown or of a private individual to prosecute. The doctrine has continued to develop, though it may have started simply. It is too narrowly stated in Archbold's Criminal Practice, para. 436, p. 149. It is not a static doctrine but develops in a way very familiar in the common law.

There is no case in which autrefois acquit has been used to stop a trial in the middle. But there is an inherent power in the court to stop a trial as soon as it appears that it infringes the maxim nemo debet bis vexari. This basic principle operates in different ways. It is a convenient package and there are different ways of applying it besides the doctrine of autrefois. There is

96 13 T.L.R. 70.

97 [1918] 1 K.B. 416, 417.

98 (1939) 55 T.L.R. 470, 472; [1939] 1 All E.R. 753, C.C.A.

99 [1898] 1 Q.B. 677.

100 [1948] 1 All E.R. 227.

a discretion in the court to prevent injustice by the violation of the principle nemo debet bis vexari. This discretion goes beyond the jurisdiction in strict autrefois and thence arises issue estoppel.

All are agreed that autrefois applies (1) where the same offence is in question; (2) in the case of a statutory provision, where the same act is in question; (3) where there has been a previous acquittal on a trial in which the accused could have been convicted of the offence subsequently charged; (4) where to prove the offence alleged on the second indictment one must prove the offence alleged in the first indictment, that is, any offence of which the accused could have been convicted or acquitted.

A possible extension of autrefois is the doctrine of inconsistency. Where a verdict of guilty on the second indictment would be inconsistent with the acquittal or deemed acquittal on the first indictment, the second verdict cannot stand. In such a case it may be only at the end of the hearing that one decides that there is an issue estoppel or res judicata. If the verdicts were inconsistent it could not matter whether the counts were in the same or in different indictments. As to motion in arrest of judgment in the case of felonies, see Bowen-Rowlands on Criminal Proceedings, 2nd ed., r. 298, p. 276. At the end of the trial the judge may say that the verdict in the second trial cannot stand because it is inconsistent with that in the first. He must look at the facts to see what was decided in the two trials. The judge may also stay the proceedings in the second trial at the outset if he has looked at the record (in the broadest sense) in the first trial and ascertained from counsel what they are seeking to prove in the second trial. The Court of Criminal Appeal has power to quash an inconsistent verdict, whether or not the counts with which it is dealing are in the same indictment. In Beach's case¹⁰¹ the report of the proceedings in the Court of Criminal Appeal makes it clear that the court, in acquitting Owens of an attempt to pervert the course of justice and Beach of aiding and abetting the offence, had negatived conspiracy to pervert the course of justice. Accordingly, on a subsequent prosecution for conspiracy Beach was properly allowed to plead autrefois acquit.¹⁰² The appellant relies on that case. See section 4 of the Criminal Appeal Act, 1907, and Archbold's Criminal Pleading, para. 911, p. 373. Sealfon's case¹⁰³ is entirely consistent with the appellant's contentions. In the

101 [1957] Cr.L.R. 687.

102 (1957) The Times, Sept. 26, p. 2.

103 332 U.S. 575, 577.

present case the issue on which the Court of Criminal Appeal decided in the appellant's favour was that he was not present and that issue cannot be relitigated. Further, since the jury could have convicted the appellant of manslaughter on the previous trial, they must be deemed to have acquitted him of that and the verdict of guilty of robbery is inconsistent with that acquittal, since, on the facts, a finding of participation in the robbery involves a finding of guilty of manslaughter if not of murder. On the authorities, if one does an unlawful act likely to injure another person, whom one accidentally kills, that is manslaughter: Reg. v. Hall.¹⁰⁴ If robbers take guns with the intention of frightening those who resist them, and one of them strikes a man with his gun and he dies, that is manslaughter. As to joint responsibility see Rex v. Mohun¹⁰⁵; Reg. v. Harrington¹⁰⁶ and Rex v. Betts and Ridley.¹⁰⁷

As to the court's discretion, the situation in criminal cases is exactly analogous to that in civil cases. The traditional safeguards for the accused should not be used to cut it down, where the maxim nemo debet bis vexari applies, although the case does not come within one of the recognised categories. The grand jury formerly and the magistrates now would not be informed of matters giving rise to a plea in bar or facts conferring a right to claim the exercise of the court's discretion.

The appellant's contentions in summary are: (1) This is a case of strict autrefois acquit. Any reasonable jury must have found at least manslaughter against any of the men present in the office, since all were equally guilty of at least manslaughter. A conviction of robbery must involve a finding that the appellant was present. (2) On the doctrine of inconsistency, there must be a miscarriage of justice if the second jury's verdict impugns the finding of the first jury: see Wemyss v. Hopkins.¹⁰⁸ (3) Issue estoppel applies. It operates on the facts of this case on the basis that if the jury had acquitted the appellant and convicted the others it is reasonably probable that that would have amounted to a finding in his favour on the issue of his presence. The fact that he was acquitted by the Court of Criminal Appeal cannot alter the position. This is in accordance with Hawkins's Pleas of the Crown, 8th ed. (1824), Book II, p. 515. See also Colin Howard on Res Judicata in Melbourne University Law Review, Vol. III,

104 (1961) 45 Cr.App.R. 366, 370-371, 372.

105 (1692) 12 St.Tr. 950, 1034.

106 (1851) 5 Cox.C.C. 231.

107 144 L.T. 526.

108 L.R. 10 Q.B. 378, 380.

p. 111. This finding ought to operate as a bar to any relitigation of the same issue. The only way to ensure consistency is to use the test of issue estoppel throughout. Autrefois acquit is an example of issue estoppel. (4) As to the court's discretion, the court has an inherent jurisdiction to prevent abuse of its process and this is not excluded by pleas in bar, which are matters of right. The residual power of the court justifies it in such cases in ordering that there shall not be a retrial of issues already litigated. (5) Finally, no one is to be tried again for the same offence. The appellant has already been tried as a robber with an intent to murder and it is sought to retry him for robbery.

Their Lordships took time for consideration.

April 21, 1964. LORD REID. My Lords, the question in this case is essentially simple. The appellant took part in an armed robbery. In the course of that robbery one of the robbers shot and killed a man. Clearly those facts were capable of giving rise to two charges against the appellant - murder and robbery. He was tried and convicted of murder, but by reason of a misdirection this conviction was quashed by the Court of Criminal Appeal. Ought he then to have been tried afresh on the charge of armed robbery?

If it were proper to be guided by the view of public policy which presently commends itself to Parliament I would think not. Ever since the passing of the Criminal Appeal Act, 1908, Parliament has persistently refused to permit a retrial in respect of the same offence after a verdict of guilty has been quashed on any ground by the Court of Criminal Appeal. Refusal to allow a new trial has always been put on the ground of fairness to the accused and I cannot see why, if it is unfair to allow a retrial for the same offence, it is fair to allow a fresh trial on the same facts merely because the offence now charged is different.

But I must take the law as I find it. The numerous authorities marshalled by my noble and learned friend, Lord Morris of Borth-y-Gest, show that many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope. It may not be possible to reconcile all the decisions, but I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial. Distinctions between cases where a man can be tried

a second time and where he cannot may seem technical, but they seem to me to be so well established by authority that it would be wrong to disregard or overrule them even if I desired to do so.

The difficulty in this case arises from the practice, based on Rex v. Jones,¹ that a second charge is never combined in one indictment with a charge of murder. I would think that the Indictments Act, 1915, was designed to ensure that all charges arising out of the same facts are combined in one indictment and thus to prevent there being a series of indictments and trials on substantially the same facts. I have had an opportunity of reading the speeches of my noble and learned friends, Lord Devlin and Lord Pearce, and I agree with them. I think that the present practice is inconvenient and ought to be changed. I realise that there are cases where, for one reason or another, it would be unfair to the accused to combine certain charges in one indictment. So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer. But in a case where it would have been improper to combine the charges in that way, or where the accused has accepted without demur the prosecutor's failure so to combine the charges, a second indictment is allowable. That will avoid any general question as to the extent of the discretion of the court to prevent a trial from taking place. But I think there must always be a residual discretion to prevent anything which savours of abuse of process.

As regards the present appeal I think that the course which this case has taken was in accord with existing practice, and I would therefore dismiss the appeal.

LORD MORRIS OF BORTH-Y-GEST. My Lords, there were two indictments against the appellant. The first charged him (together with three others) with the murder of a man named Hurden on November 17, 1962. The second charged him (together with the three others) with robbery with aggravation contrary to section 23 (1) (a) of the Larceny Act, 1916. The particulars of the offence charged in the second indictment alleged that on November 17, 1962, the accused, being armed with offensive weapons, to wit firearms, and being together with others robbed a man named Davies of a sum of over £519. By reason of a rule of practice (see Rex v. Jones¹ the charges could not both have been contained in one indictment. The appellant pleaded

1 [1918] 1 K.B. 416, C.C.A.

not guilty to both. The two indictments could not be tried together. The first was taken first. The appellant's defence (at a trial at the Central Criminal Court) was that he was not guilty for the reason that he had not been present at the scene of the crime. He made an alternative submission that if he was present he was still not guilty of murder. The submission was put by learned counsel to the jury in the following words: "... nevertheless, members of the jury, if you come to the conclusion that Connelly was there, you still have to decide whether he is guilty of murder, and my submission to you is this. There is no evidence that any of the men in the office intended to do more than frighten people with unloaded guns. There is no evidence that the guns in the office were loaded; there is no evidence that any of the men in the office knew that the man outside had a loaded gun or intended to use it, and unless the prosecution satisfy you that the men in the office either were themselves prepared to use such force as would cause grievous bodily harm or knew that their confrere outside was prepared to do the same kind of thing, then the prosecution would not have established the necessary ingredients of murder. They would, of course, have established the necessary ingredients for robbery and quite clearly, on the second indictment, if Connelly came up again and the jury had found that he was present, then he would go down on the second indictment."

The jury found the appellant guilty of murder. The learned judge said that the second indictment should remain on the file and be marked as not to be proceeded with unless the court or the Court of Criminal Appeal gave leave.

The appellant appealed to the Court of Criminal Appeal. On the ground that there had been misdirection in that part of the summing-up which dealt with the appellant's defence of an alibi and because the court did not feel it possible to apply the proviso, the appeal was (on April 5, 1963) allowed, and the appellant's conviction of murder was set aside. The question of the trial on the second indictment then arose. The Court of Criminal Appeal recognised that a plea of autrefois acquit could not then be argued and acceded to an application made by the prosecution for leave to prefer the second indictment. It has not been suggested that this circumstance would prevent the success of a later plea of autrefois acquit if the plea could be justified.

The appellant appeared again at the Central Criminal Court on May 10, 1963. He pleaded autrefois acquit. A jury was sworn to try that issue. The learned judge told the jury about the

proceedings in the Court of Criminal Appeal and of the resulting acquittal of murder, and in his direction to them said: "The question that you have to decide is a short and simple one: has this man Connelly proved that he has already been tried and acquitted of the same felony or offence, or of substantially the same offence, or has he already been tried and acquitted on an indictment on which he could have been convicted of the same or substantially the same offence?" Pointing out that the murder which was alleged in the first indictment took place in the course of the robbery which was alleged in the second indictment, he asked the jury whether it could be said that the murder of Hurden on November 17 was the same or substantially or practically the same as robbery with aggravation of a sum of money from Davies. He told the jury that the answer must be "no." He directed them that on the indictment for murdering Hurden the appellant could not have been convicted of robbing Davies. The jury, on his direction, found that the appellant had not previously been acquitted of the felony for which he was indicted in the second indictment.

My Lords, for reasons which I will elaborate, I can find no error in the direction of the learned judge. The appellant could not on the first indictment have been found guilty of the offence of robbery with aggravation. Nor is proof of robbery with aggravation equated with proof of a killing.

Following the verdict of the jury, the learned judge expressed the view that the Crown ought not to proceed with the second indictment. The reason formulated by the learned judge for that view was that the issue whether the appellant had taken part in the raid at Mitcham on November 17, 1962, had already been decided and ought not to be re-tried. So far, however, as there had up to then been any direct decision, such decision was that of the jury, who found that the appellant was guilty of murder. That necessarily involved that he had been at Mitcham on November 17, 1962. The Court of Criminal Appeal did not decide that he had not been there. Their decision, publicly stated, records no such finding. Though the appeal was presented on the ground that there had been misdirection concerning the issue as to whether the appellant had been at Mitcham, and though the issue of murderous intent was not raised, all that the Court of Criminal Appeal decided was that there had been misdirection in the summing-up and that they could not apply the proviso. The result was that the conviction was set aside. The result is that the appellant can validly assert that he has been

acquitted of the charge of murder - with the consequential result that he has also been acquitted of manslaughter. He cannot, however, say that anyone has ever decided that he was not present. Indeed, it is probable that the Court of Criminal Appeal would not without demur have agreed that the second indictment should be proceeded with, had they thought that their decision in any way involved a finding or conclusion to the effect that the appellant had not been at Mitcham. The verdict of acquittal of murder which was the consequence of the decision of the Court of Criminal Appeal (see section 4 of the Criminal Appeal Act, 1907) can be regarded as placing the appellant in the same position as he would have been in if the jury had returned a verdict of not guilty. Such a verdict of a jury could not, however, be analysed. The appellant's case, as submitted to the jury on the murder charge, was twofold, namely, (1) I was not there at all; (2) if I was there, I was in no way responsible for the killing that took place. A verdict of not guilty would not proclaim what had been the view of the jury.

The Crown decided to proceed with the second indictment. A submission was then made to the learned judge that he could and that he should prevent the prosecution from proceeding. He was invited (1) to make an order that all further proceedings on the indictment should be stayed or that the indictment should lie on the file and that the matter should be adjourned sine die, or (2) to allow the indictment to remain on the file od the court marked "Not to be proceeded with without leave of the court," or (3) to quash the indictment, or (4) to empanel a jury and to direct them to acquit the appellant. The submission apparently was that it "would be unfair or contrary to the interests of justice" to allow the second trial to take place.

The learned judge declined to give any direction to the prosecution that they should not proceed. They did proceed, and in due course the appellant was convicted. My Lords, in my view the learned judge was entirely correct in so declining. He had no power to suppress the prosecution. There was no abuse of the process of the court. The indictment was correct in form. There was no basis for the quashing of it. Should it, then, be said (in a somewhat vague and imprecise way) to have been "unfair" that the appellant should have been tried on the second indictment? The guiding principles as to what is fair and in the interests of justice have been evolved over the centuries: some of them, indeed, find their expression in the rules governing the pleas of autrefois acquit and autrefois convict and other kindred

pleas; but if an appellant, being faced with a charge, cannot show that any of these pleas avail him, why is it unfair that he should take his trial? He will not be convicted unless his guilt of the charge is established so that a jury are quite sure of it. Why is that contrary to the interests of justice? The most that can be said in this case is that if there had not been a rule of practice which prevented the joinder in one indictment of other charges together with a charge of murder and if there had been such a joinder and all offences had been charged in one indictment and tried together, and if in that event there had been misdirection in the summing-up similar to the misdirection in the summing-up on the trial of the first indictment and if the appellant had been convicted by a jury, the result of an appeal to the Court of Criminal Appeal would have been that the appellant would have been acquitted of all charges. That the plight of the appellant would on all those suppositions have been different does not seem to me to be a valid basis for a view that it was contrary to the interests of justice that the trial of the second indictment should proceed. In any event, if there had been a joinder of all charges in one indictment it is possible that there might have been a request to have a separate trial of the robbery count. I consider that if a charge is preferred which is contained in a perfectly valid indictment which is drawn so as to accord with what the court has stated to be correct practice and which is presented to a court clothed with jurisdiction to deal with it and if there is no plea in bar which can be upheld the court cannot direct that the prosecution must not proceed. I agree with what was said by Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions, Ex parte Downes,² that once an indictment is before the court the accused must be arraigned and tried thereon unless (on a motion to quash or demurrer pleaded) the indictment is held to be defective in substance or form and is not amended, or unless matter in bar is pleaded and the plea is tried or confirmed in favour of the accused or unless (after the indictment is found) the Attorney-General enters a nolle prosequi or unless the court has no jurisdiction to try the offence disclosed by the indictment. In that case Lord Goddard said that he knew of no power in the court to quash an indictment because it is anticipated that the evidence would not support the charge: indeed, the only ground on which the court can examine the depositions, before arraignment, is to see whether

2 [1954] 1 Q.B. 1; [1953] 3 W.L.R. 586; [1953] 2 All E.R. 750, D.C.

(in a case where there is a count for which there has not been a committal) the depositions disclose the offence covered by that count.

There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. The preferment in this case of the second indictment could not, however, in my view, be characterised as an abuse of the process of the court.

I consider that the rule of practice that counts for other offences should not be included in an indictment for murder (see Rex v. Jones³) could with advantage now be modified. Some of the considerations which no doubt prompted the rule are not now as fully applicable as they were before the passing of the Homicide Act, 1957. The ruling in Rex v. Jones³ was, I consider, not a ruling of law but was one of practice and procedure. (See also Rex v. Large⁴ and Rex v. Davis.⁵) There must now often be circumstances in homicide cases (though probably not in capital murder charge cases) in which such joinder of charges as is made permissive by the rules of the Indictments Act would not be undesirable. In view of this and in the light of current experience, the time is, I think, opportune for a reconsideration by the Court of Criminal Appeal of the rule of practice. It is, however, clear that in framing two indictments against the appellant in the present case the prosecution were not at fault and were only doing what they were obliged to do. While, as I will endeavour to show, there has never been a rule that the same facts may not form the basis of successive charges, there is inherent in our criminal administration a policy and a tradition that even in the case of wrongdoers there must be an avoidance of anything that savours of oppression. That fine tradition is not tarnished if, where rules (which have themselves been evolved in the interests of fairness) make it inevitable, and where the interests of justice so direct, a second trial takes place in which facts are for a second time investigated.

The power (which is inherent in a court's jurisdiction) to prevent abuses of its process and to control its own procedure

3 [1918] 1 K.B. 416.

4 (1939) 55 T.L.R. 470; [1939] 1 All E.R. 753, C.C.A.