Nash v R

1. [1]

   MACFARLAN JA: On 13 October 2011 Senior Constable Hicks followed the applicant as he drove out of the car park of a golf club on the Central Coast. When the applicant arrived at his home, a short distance away, a confrontation with Constable Hicks occurred. Constable Hicks did not administer a random breath test as the applicant was at his home. The applicant was subsequently charged with offences of resisting arrest and driving under the influence of alcohol.

2. [2]

   At a hearing of the charge at the Local Court at Wyong on 18 May 2012, the applicant gave evidence, inter alia, that he had been present at the golf club for one and a half to two hours and had drunk only two, or at most three, schooners of light-strength beer. Magistrate McIntyre acquitted him on both charges.

3. [3]

   Subsequently, the applicant obtained damages from the State of New South Wales in civil proceedings that he brought against it for unlawful arrest, assault and malicious prosecution. The applicant gave the same evidence in those proceedings as he had given in the Local Court and, through his counsel, tendered CCTV footage, produced on subpoena by the golf club showing him purchasing drinks on only three occasions whilst he was at the golf club.

4. [4]

   Later, the police became aware that the CCTV footage had been edited and that the original footage showed the applicant purchasing seven schooners of full strength beer. The golf club General Manager, who produced the CCTV footage on subpoena in the civil proceedings, thereafter pleaded guilty to two counts of tampering with evidence with intent to mislead a judicial tribunal and was sentenced to a term of imprisonment.

5. [5]

   By an amended indictment presented in the District Court on 8 February 2019, the applicant was charged to the following effect:

   1. (1)

      That he committed perjury by giving evidence to the Wyong Local Court on 18 May 2012 that on 13 October 2011 he had drunk no more than three schooners of light beer whilst he was at the golf club: Crimes Act 1900 (NSW), s 327(1).

   2. (2)

      That on or about 17 October 2013 he tampered with evidence intending to mislead a judicial tribunal in judicial proceedings: Crimes Act, s 317(a).

   3. (3)

      That in the civil proceedings he gave the same perjured evidence as in the Local Court: Crimes Act, s 327(1).

   4. (4)

      That in the civil proceedings he provided misleading evidence, being the altered CCTV footage, intending to pervert the course of justice: Crimes Act, s 319.

6. [6]

   By Notice of Motion filed in the District Court on 30 January 2019 the applicant sought an order that the proceedings on Count 1 of the amended indictment be permanently stayed on the ground that by that charge the Crown sought to controvert the applicant’s acquittal in the Local Court on 18 May 2012 of the charge of driving under the influence of alcohol. By judgment of 31 January 2019 Sutherland SC DCJ declined to make that order ([2019] NSWDC 64). The applicant seeks leave to appeal to this Court against that decision pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). On 5 February 2019, this Court stayed further proceedings on the indictment pending determination of that leave application, on the basis that the applicant had an arguable case for permanent relief ([2019] NSWCCA 14).

7. [7]

   As the applicant’s leave application raises an arguable issue of principle, leave to appeal should be granted but, for the reasons given below, his appeal should be dismissed.

The verdict of acquittal in the Local Court

1. [8]

   Magistrate McIntyre’s decision was given ex tempore at the conclusion of the hearing. Her Honour rejected the Crown’s case that the applicant had knowingly resisted lawful arrest. She accepted the applicant’s evidence on that topic. On the charge of driving whilst under the influence of alcohol, her Honour said:

The judgment at first instance

1. [9]

   The primary judge noted that the charge of driving under the influence was laid under s 12 of the then current Road Transport (Safety and Traffic Management) Act 1999 (NSW) and that earlier legislation had for many decades provided for similar offences. His Honour also noted that R v Whitby (1957) 74 WN (NSW) 441 at 443-4 and other authorities established that observations as to the manner of driving, as to the demeanour of the driver and as to whether he or she appeared to be under the influence of alcohol could be given by lay witnesses.

2. [10]

   After referring to further relevant authorities, his Honour concluded as follows:

The applicant’s submissions on appeal

1. [11]

   The applicant first submitted that the primary judge rejected the stay application on the basis that the perjury charge did not “directly impugn” the verdict of acquittal, whereas his Honour should, by reference to what Barwick CJ said in Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67 have also asked himself whether the perjury charge, or the evidence called in support of it, would “call into question” or “tend to overturn” the applicant’s acquittal of the offence of driving under the influence of alcohol.

2. [12]

   Secondly, the applicant submitted that the primary judge erred in rejecting the applicant’s submission that “the findings of the magistrate … are inextricably linked to the acquittal such that to relitigate those findings constitutes an abuse of the process of the District Court”. Alternatively, the applicant submitted that the primary judge failed to give adequate reasons for rejecting that contention.

Determination of the appeal

1. [13]

   As McHugh, Hayne and Callinan JJ observed in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [9], the expression “double jeopardy” is used by judges with a variety of meanings, depending upon the context, but that there is a single rationale for the concept as described by Black J in Green v United States (1957) 355 US 184 at 187-8 in the following terms:

2. [14]

   In Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 Gummow and Hayne JJ observed on the same topic that (at [41]):

3. [15]

   The principle of autrefois aquit, which falls under the general rubric of double jeopardy, is not applicable in the present case. That principle is confined to cases where “the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other” (Pearce at [24]). The Crown has not charged the applicant with the same or any similar offence to that of which he was acquitted. There is thus no “plea in bar” (that is, substantive defence) available to the applicant in answer to his prosecution for perjury.

4. [16]

   Where a plea in bar is not available, a prosecution subsequent to an acquittal, or the evidence to be called in that prosecution, may however conflict with the policy against placing a person in double jeopardy. If the court concludes that the subsequent prosecution is an abuse of process, it has the power to grant a permanent stay of those proceedings and if a subsequent tender of evidence conflicts with an earlier acquittal, it will be rejected. Barwick CJ stated this principle of incontrovertibility, so far as it relates to the tender of evidence, in Garrett at 445 as one “that [an] acquittal may not be questioned or called in question by any evidence which if accepted would overturn or tend to overturn the verdict”. Even where the principle of incontrovertibility is engaged, the court may still have to ask itself whether there is an abuse of process that warrants a permanent stay of proceedings (R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [209] per McClellan CJ at CL; compare at [98] per Spigelman CJ).

5. [17]

   In Garrett, the appellant was acquitted of a charge of rape after having given evidence that the complainant had consented to intercourse. At a subsequent trial of the appellant on a charge of having raped the same complainant on a different occasion, evidence of (i) the complaint leading to the earlier charge, (ii) the complainant’s denial of consent to intercourse and (iii) the appellant’s acquittal of the charge was admitted. The High Court held that that evidence was not admissible as it conflicted with the principle of incontrovertibility stated by Barwick CJ. As Barwick CJ further stated, “the direct tendency of the evidence of the prosectrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal” (at 445).

6. [18]

   The present case is different because neither the Local Court perjury charge against the applicant, nor the evidence proposed to be called in support of it, directly contradicts the applicant’s earlier acquittal. If the Crown had charged the applicant with perjuring himself at the Local Court trial by saying, as in substance he did in other evidence which is not the subject of the perjury charge, that he was not under the influence of alcohol when he drove his vehicle, the position would likely have been different. In that instance, the finding of perjury would, as in Garrett, have directly contradicted the basis of his acquittal of the relevant charge, as the only issue at the earlier trial was whether he was under the influence of alcohol, it being accepted that he drove his vehicle. I add that it is permissible, and indeed necessary, for the purposes of applying the principle of incontrovertibility to look behind the bare fact of acquittal to ascertain what the issues at the trial were (Gray v Dalgety & Co Ltd (1916) 21 CLR 509 at 543; [1916] HCA 35; Rogers v The Queen (1994) 181 CLR 251 at [11]; [1994] HCA 42).

7. [19]

   The evidence that is the subject of the present perjury charge is however not whether the applicant was under the influence of alcohol but how much alcohol he had ingested. That evidence was material evidence (and was indeed relied upon by the Magistrate, although not exclusively, in deciding to acquit the applicant), but it was not determinative. Thus, in the absence of expert evidence to the contrary, it is unlikely that a court would conclude simply on the basis of evidence that a person had had only three light beers within a period of two hours that the person was not under the influence of alcohol when driving a vehicle. In determining whether he or she was under the influence of alcohol, much could depend on the weight and drinking experience of the person, and on other factors.

8. [20]

   As is evident from the learned Magistrate’s reasons, her decision was, quite properly, arrived at after taking into account a variety of factors, such as the following, in addition to the applicant’s evidence of how much (or little) alcohol he had ingested:

   1. (1)

      whether there was evidence that the applicant drove erratically;

   2. (2)

      whether the applicant attempted to avoid Constable Hicks;

   3. (3)

      what observations Constable Hicks made of the applicant’s physical condition, including whether he smelt of alcohol; and

   4. (4)

      whether there was any expert evidence as to whether the applicant was under the influence of alcohol.

9. [21]

   Being a decision of the High Court in a case in which, as here, a perjury charge was alleged to controvert an earlier acquittal, R v Carroll (2002) 213 CLR 635; [2002] HCA 55 is the principal authority relevant to the present case. The High Court has referred to it with approval in a number of subsequent decisions (Island Maritime Ltd v Filipowski at [41]; Washer v The State of Western Australia (2007) 234 CLR 492; [2007] HCA 48 at [5]; Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [35]; and Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [76]).

10. [22]

    In Carroll, the respondent was acquitted of murder after giving evidence that he did not kill the victim. This evidence was directed to the only issue at the trial. Subsequently, the respondent was charged with perjury in respect of that evidence. The High Court held that the perjury indictment was an abuse of process and should be permanently stayed. It held that conviction on that indictment would contradict the respondent’s earlier acquittal of murder as both charges raised the same ultimate issue. Gleeson CJ and Hayne J noted at [26] that what the prosecution had to prove at each trial was not identical but that “the factual inquiries made at the two trials, in the end, came to focus on the same issue – did the respondent kill [the victim]?” They also noted that “the prosecutor expressly acknowledged that the perjury case was conducted, in practical effect, as a re-trial for murder” (ibid).

11. [23]

    Their Honours stated at [35] that the application for a stay was based upon “the need for decisions of the courts, unless set-aside or quashed, to be accepted as incontrovertibly correct” (citing Rogers at 273). Their Honours at [37] referred to Barwick CJ’s statement of principle in Garrett but observed that the reference in that statement “to calling in question and tending to overturn give the principle great width: wider than may be thought to have been stated by the Privy Council in Sambasivam v Public Prosecution, Federation of Malaya [[1950] AC 458 at 479], a case often referred to in this connection.”

12. [24]

    Their Honours then said at [40] that “[t]here are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available” and, at least in the case of jury verdicts where the decision-maker’s reasons are not known, “the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial” (at [40]). Their Honours considered at [41]-[42] that the case before them was such a case, there being “manifest inconsistency between the charge of perjury and the acquittal of murder”. The inconsistency arose “because the prosecution based the perjury charge solely upon the respondent’s sworn denial of guilt”.

13. [25]

    Their Honours then referred to Rogers where an abuse of process was found in the prosecution in that case attempting to re-litigate a finding at an earlier trial that records of interview were inadmissible. Their Honours then said at [45] that “[i]t is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so.” Later, their Honours said:

14. [26]

    Their Honours accordingly did not give their imprimatur to Barwick CJ’s extended principle so far as it referred to an acquittal being “called into question” or evidence which would “tend to overturn” the verdict stated. These are the phrases relied upon by the applicant in the present case. In Carroll, a narrower principle involving direct inconsistency was sufficient to dispose of the case and, in the paragraph just quoted, their Honours noted that proceedings or evidence which “might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision” was not necessarily prohibited.

15. [27]

    Gaudron and Gummow JJ agreed at [93] with Gleeson CJ and Hayne J’s observations concerning Rogers and Garrett and that it was unnecessary in Carroll to decide whether “they support any wider proposition” than that a “prior acquittal itself cannot subsequently be controverted”.

16. [28]

    Their Honours continued (at [103]):

17. [29]

    This paragraph in their Honour’s judgment draws a distinction, relevant to the present case, between contradiction at a later trial of evidence that was determinative of the outcome of an earlier trial, and contradiction of evidence that was simply material to its outcome. Thus, as their Honours instanced at [103], subsequent impeachment of alibi evidence given at the earlier trial “would not necessarily negative the acquittal”, the alibi evidence ordinarily being material to, rather than necessarily determinative, of the outcome of the earlier trial. Their Honours reiterated this point in subsequent paragraphs ([104]-[108]) by reference to other authorities, including R v McDermott (1899) 24 VLR 636 where the Victorian Full Court “emphasised that the ground of the jury’s verdict in the earlier trial was not necessarily that the alibi evidence was true”. Their Honours also referred to United States authorities, including United States v Fayer (1978) 573 F 2d 741 at 745, where the Court of Appeals for the Second Circuit said, with reference to authority relating to perjury trials:

18. [30]

    The remaining judge in Carroll, McHugh J, reached the same conclusion as the other four members of the Court, but did not express the reservations that they did concerning the width of the principle stated by Barwick CJ in Garrett.

19. [31]

    The extended principle stated by Barwick CJ in Garrett, that is, that the principle of incontrovertibility applies where an acquittal is “called into question” by any evidence which if accepted would “tend to overturn the verdict” (see [15] above) should not in my view be accepted as authoritative. The extended principle has not been accepted in any subsequent High Court decisions as authoritative and indeed, as I have indicated, has been the subject of doubts expressed in Carroll as to its correctness. Moreover, the disposition of Garrett did not require a principle of the breadth stated by Barwick CJ to be applied.

20. [32]

    In any event, the extended principle would not in my view assist the applicant in the present case. On the present facts, the highest it could be put is that the applicant’s perjury charge might cause a reasonable person to wonder or even doubt whether the earlier acquittal was correct. I do not consider however that the “calling into question” and “tending to overturn” aspects of the extended principle can be understood as rendering this sufficient to attract the inconvertibility principle. As the two joint judgments in Carroll make plain, an inconsistency between the later conviction or evidence, on the one hand, and the earlier acquittal, on the other, is required. It is insufficient that material, but not necessarily decisive, evidence called at the first trial is subsequently impeached.

21. [33]

    Later High Court authorities do not require any different conclusions. In Island Maritime Ltd v Filipowski, Gummow and Hayne JJ described the rule, so far as it applied to evidence, as that “evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal”. They referred to Garrett, Rogers and Carroll. Particularly as their Honours were each parties to the detailed discussions in Carroll of the relevant issues, this passing statement, which includes the expression “tend to overturn”, should not be taken as an indication by their Honours that what was said in Garrett was to be preferred over what was later said by the judges, including themselves, in Carroll.

22. [34]

    Likewise, references to Carroll in the later decisions in Likiardopoulos and Sio do not shed any further light on the principles to be applied.

23. [35]

    Nor does the decision of this Court in Gilham require any different conclusions. In that case, Spigelman CJ expressed the view at [49] that the generality of the terminology used by Barwick CJ in Garrett was not supported in the decision in Carroll. McClellan CJ at CL (with whom Hidden and Latham JJ relevantly agreed) referred at [149] to the “reach” of the relevant principle as not having yet been authoritatively determined and Hulme J commented at [266] to similar effect.

24. [36]

    I add in conclusion that, contrary to the applicant’s submissions, there was no inadequacy in the primary judge’s reasoning.

Conclusion

1. [37]

   For these reasons, the Crown’s proceeding on the count of the amended indictment alleging the applicant’s perjury at the Local Court hearing on 18 May 2012 would not involve any abuse of process, nor would its adducing of evidence that the evidence that the applicant gave to the Local Court that he had had only two, or at most three, beers at the golf club on 18 May 2012 was false. As a result, the primary judge properly refused the applicant’s application for a permanent stay.

2. [38]

   In these circumstances, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

3. [39]

   HARRISON J: I have had the advantage of reading Macfarlan JA’s draft judgment. I agree with his Honour’s conclusions and with the orders he proposes.

4. [40]

   Reduced to its fundamental elements, the applicant’s contention is that a charge of perjury that relies upon the alleged falsity of evidence given by him in proceedings, in which he successfully defended a prosecution for driving whilst under the influence, contradicts his acquittal on that charge. That contention proceeds upon the basis that an apparent acceptance by the learned Magistrate of his evidence that he only consumed two or three beers would be inconsistent with a new case alleging that his evidence on that issue was false. However, that submission conflates the fact of his acquittal with the necessary acceptance of the impugned evidence he gave. Evidence that the applicant consumed seven full strength beers rather than the two or three beers that he swore he consumed arguably contradicts his earlier evidence but does not necessarily contradict his acquittal. That is because proof in the original proceedings that the applicant consumed seven beers would not inevitably have led to a different result on the charge that he faced. As Macfarlan JA has demonstrated, the applicant’s acquittal did not depend solely or even importantly upon what is now alleged to be his untruthful evidence. There is no necessary tension between the applicant’s earlier acquittal and the pending charge of perjury.

5. [41]

   HAMILL J: I agree with the orders proposed by Macfarlan JA and, generally, with his Honour’s reasons for making those orders. I also agree with the brief additional observations made by Harrison J.

6. [42]

   I do not consider that it is necessary to consider whether the “extended principle stated by Barwick CJ in Garrett” is authoritative in the light of subsequent decisions of the High Court. Like Gaudron and Gummow JJ in R v Carroll, I take the view that it is unnecessary to decide whether the judgments in Rogers and Garrett “support any wider proposition” than the simple one that “a prior acquittal itself cannot subsequently be controverted”.

7. [43]

   The charge of perjury in the present case, based on the applicant’s evidence of how many beers he had, does not controvert the applicant’s acquittal in respect of the charge of driving under the influence of alcohol. An analysis of the Magistrate’s findings, and a consideration of what needed to be (but was not) established in respect of the summary offence, demonstrates that neither the principle of incontrovertibility nor the more general principle of double jeopardy is offended. At a factual level, there is an obvious connection between the applicant’s evidence in the Local Court that he only had two or three light beers and the charge of driving under the influence. However, as both Macfarlan JA and Harrison J demonstrate, that evidence neither disproved an element of the offence nor proved to be critical to the Magistrate’s reasoning. Prosecuting the applicant for perjury in respect of that evidence does not controvert his acquittal in the Local Court. Nor does it “call into question” or “tend to overturn” that acquittal.

8. [44]

   A permanent stay of proceedings is an exceptional remedy granted only in extreme cases: see, for example, Jago v The District Court of New South Wales (1989) 168 CLR 23 at 76; [1989] HCA 46, R v CB, R v MP [2011] NSWCCA 264, R v Seller and McCarthy [2013] NSWCCA 42 and R v Regan [2002] SCC 12. The primary judge was correct to refuse to order a permanent stay in the particular circumstances of the present case.