The appeal of hypotheticals

On Wednesday Kirby J in the High Court of Australia made an interesting observation on the extent to which that Court should engage in speculation about the legal consequence of events that have not yet occurred:

Avoiding hypothetical decisions: … experience teaches that it is ordinarily wise to withhold substantial comments on the consequences of future events for legal rights and duties. Those events (if they occur at all) have an unpleasant habit of following an unpredictable course, often quite different from that anticipated at an earlier time. From its earliest days to the present, this Court has been reluctant to proffer legal advice and predictions on the basis of hypothetical facts that have not yet arisen [footnote: The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 674-675; In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 267; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 623, cf 666-668; Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 357 [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ]. In part, this reluctance has grown out of the constitutional requirement for there to be a “matter” before the Court. There is no problem in that regard in the present proceeding. The appellant’s appeal is such a “matter”. In part, it has arisen because of the Court’s usual unwillingness to expand the ambit of the “matter” by offering predictions about the outcome of arguments of double jeopardy, in any future trial of the appellant, in advance of any such trial and without the concrete circumstances, enlivened by evidence, said to give rise to the peril of double jeopardy forbidden by the earlier judgment of acquittal. As recent divided decisions of this Court show, this is a tricky area of the law. It contains many difficulties [footnote: Pearce v The Queen (1998) 194 CLR 610; Island Maritime Ltd v Filipowski (2006) 226 CLR 328. See also R v Carroll (2002) 213 CLR 635].”

The case before the Court, AJS v R [2007] HCA 27 (13 June 2007) involved the power of a court of appeal to order a new trial. The point is not controversial, and essentially is that where a jury has been directed that, if it finds the accused guilty on one count, it should not consider whether or not the accused is guilty on an alternative count, and it does find him guilty of the first count, a court of appeal may, if it quashes the conviction and enters an acquittal on that count, order a new trial on the alternative count.

The fact that complex issues may arise, if the prosecution decides to proceed with the new trial on the remaining count, is irrelevant. Arguments about double jeopardy are immaterial. The other judges, in a joint judgment (making an order with which Kirby J agreed), did give some consideration to what might happen if such arguments were raised, and decided this point as follows:

“19. No question of double jeopardy arises in the present matter. The proceedings commenced by the prosecution against the appellant were, as the Court of Appeal’s orders recognised, only partly determined by that Court’s disposition of the appeal. The second of the offences now under consideration (the offence of committing an indecent act) was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce. In Pearce, the prosecution sought and obtained convictions for two offences charged in the one indictment. Further, unlike Island Maritime, there would be no separate institution of a second prosecution. In this case the prosecution does not seek to institute new and different proceedings against the appellant after the final determination (against the prosecution) of earlier proceedings. The charge of incest preferred against the appellant has now been finally resolved in his favour. He is entitled to the entry of judgment and verdict of acquittal of that offence. But the other, lesser, statutory alternative offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined by the Court of Appeal and remains unresolved.”

Whether that is an acceptable approach to what constitutes double jeopardy is arguable. It seems beside the point to rely on procedural niceties, saying the proceedings hadn’t been determined. At the trial there was a fundamental error (leaving to the jury a charge on which there was insufficient evidence) which caused the jury to fail to consider the alternative charge. From the accused’s point of view, he was in jeopardy of conviction on either charge as soon as the trial started, and this jeopardy continued until the jury returned its verdict. The prosecution did not seek to withdraw either charge, and would have been happy with a conviction on one or the other. It was not the accused’s fault that the trial was completed unsatisfactorily. The double jeopardy rules (available to the accused in the form of the special pleas of autrefois convict or autrefois acquit, or as an application to stay the second proceedings) stem from the need to prevent an abuse of the court’s process. Such an abuse would, arguably, occur if the accused had to undergo a new trial because of this sort of systemic failure.

On the other hand, errors often occur which, when they are corrected on appeal by the quashing of convictions, lead to a new trial being ordered. Such new trials are not counted as double jeopardy. Often this occurs because the judge makes a mistake when summing up the case to the jury. These sorts of errors, certainly not the fault of the accused, result in the accused having to undergo another trial. At that trial the prosecution may be able to present a stronger case as a result of having had weaknesses highlighted by the accused at the first trial. That is not usually thought of as double jeopardy. Plainly, the policy underlying the double jeopardy doctrine needs to be clearly articulated and its applications rationalised.

Kirby J’s reservations about deciding the double jeopardy point, which is hypothetical on the present case, partly focused on the fact that the High Court has reserved its decision in a case in which the meaning of giving the accused the “full benefit” of an acquittal has to be decided (Washer v The Queen, reserved 27 April 2007). His point appears to be that it would be unfortunate if the reasoning in the joint judgment in the present case (where full argument on particular facts had not been heard) were to be used as a precedent for deciding the case that is currently reserved.


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