Res judicata or double jeopardy?

The different foundations of the special pleas (autrefois convict/acquit) and issue estoppel are called to mind by Coke-Wallis, R (on the application of) v Institute of Chartered Accountants in England and Wales [2011] UKSC 2 (19 January 2011). Lord Collins noted at [59] that the principles of the special pleas do not apply in civil cases, and that Lord Bridge had been wrong in Harry Lee Wee v Law Society of Singapore [1985] 1 WLR 362, 368 (PC) to suggest that they do.

Re-litigation of issues may be permitted, subject to the court’s duty to prevent an abuse of its process. Re-litigation in civil cases is controlled by the doctrine of res judicata, which has generated the rules concerning cause of action estoppel and issue estoppel. In criminal cases the prevention of double jeopardy is the conceptual source of the special pleas.

In civil cases, cause of action estoppel prevents different evidence being used to prove a suit that had previously failed, as occurred in Coke-Wallis. If the earlier proceedings had been criminal, different considerations would apply to the admissibility of determinations of issues in the subsequent civil case: see Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008), noted in the entry for 25 July 2008. Acquittal in criminal proceedings does not prevent the same issues being decided in a subsequent civil case. This reflects the generality of the criminal verdict. The higher standard of criminal proof makes appropriate the use of evidence of a previous conviction in a subsequent civil case, which is likely to be permitted if relevant although there may be exceptions (as is recognised for example in s 47 of the Evidence Act 2006[NZ]). And, still focusing on where the second case is civil, evidence of a judgment or of a finding of fact in an earlier civil case is likely to be admissible (and not disputable) within the principles of res judicata but not otherwise.

A particularly clear outline of the position where the second case is criminal is given in R v Carroll [2002] HCA 55; 213 CLR 635; 194 ALR 1; 77 ALJR 157 (5 December 2002). In criminal law a more flexible approach may be permitted to prevent abuse of process. On double jeopardy, Gleeson CJ and Hayne J observed at 23-24:

“[23] It is … important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.

“[24] Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error.”

Where the first case was criminal and there was an acquittal, it may be impossible to say that a given fact was determined to any standard. This makes the application of estoppels inappropriate (Carroll at [35]). Instead, it is recognised that there is a discretion which underlies the special pleas: Connelly v Director of Public Prosecutions [1964] AC 1254 per Lord Pearce at 1364:

“A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas.” (emphasis in original)

This discretion is the inherent power of the court to prevent an abuse of its process (Carroll at [39]). So, although a plea of autrefois acquit may not technically be available on a particular issue, considerations of double jeopardy may indicate that the laying of the second charge was an abuse of process. Outside of the technical application of autrefois acquit, it may be possible to reveal double jeopardy by comparing the issues in the first trial with those raised in the second. Carroll is an illustration: at the first trial the charge was murder, the only issue was identity, and the accused gave evidence. He was acquitted but subsequently charged with perjury on the basis of his denial of being the killer. The elements of perjury differ from the elements of murder, so autrefois acquit did not assist the defendant, but the High Court unanimously held that the perjury prosecution was an abuse of process and it was stayed.

While issue estoppel has no place in criminal law in Australia (Rogers v R [1994] HCA 42; (1994) 181 CLR 251), the UK (R v Humphrys [1977] AC1) and New Zealand (R v Davis [1982] 1 NZLR 584 (CA)), this is not so in Canada: R v Mahalingan [2008] SCC 63 (14 November 2008), discussed here on 15 November 2008. In that case the issue was whether evidence that the defendant had attempted to interfere with a witness, a charge on which he had been acquitted, was admissible at his trial for aggravated assault. It should be obvious that, unlike in Carroll, proof of the second charge did not entail contradicting the acquittal, but the majority of the Supreme Court of Canada held that issue estoppel applied because it included findings of reasonable doubt on an issue. It seems clear that the Canadian approach, committed as it is to the use of the res judicata-based estoppels, is having its limitations reduced by a fiction that a finding of a reasonable doubt is a determination of an issue.

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