The Queen v Carroll [2002] HCA 55

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW AND HAYNE JJ

THE QUEEN APPLICANT

AND

RAYMOND JOHN CARROLL RESPONDENT

The Queen v Carroll

[2002] HCA 55

5 December 2002

B82/2001

ORDER

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and dismissed.

On appeal from the Supreme Court of Queensland

Representation:

M J Byrne QC for the applicant (instructed by the Director of Public Prosecutions (Queensland))

M J Griffin SC with P J Davis for the respondent (instructed by Legal Aid Office (Queensland))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Carroll

Criminal law – Perjury – Accused at murder trial denies in evidence that he killed the deceased – Accused acquitted of murder and subsequently indicted for perjury in relation to sworn statement – Whether perjury charge undermined accused's acquittal of earlier charge of murder – Whether perjury charge infringed common law rule against "double jeopardy".

Criminal law – Double jeopardy – Res judicata – Issue estoppel – Autrefois acquit – Preclusion.

Practice and procedure – Power of court to stay indictments for abuse of process – Whether perjury indictment should have been stayed as an abuse of process.

Criminal Code (Q), ss 17, 123, 584, 592A, 598, 602, 631.

Evidence Act 1977 (Q), s 8.

Words and phrases – "Double jeopardy".

1. GLEESON CJ AND HAYNE J. In 1985, the respondent gave evidence on oath, at his trial for the murder of Deidre Maree Kennedy, denying that he had killed her. Despite his denial, the jury returned a verdict of guilty. On appeal, the Court of Criminal Appeal of Queensland concluded that, on the evidence led at trial, it was not open to a properly instructed jury to conclude beyond reasonable doubt that the respondent was guilty. Accordingly, the Court ordered that the conviction be quashed and directed that a verdict of acquittal be entered[1]. 2. More than 14 years after the respondent's trial for murder, he was indicted for perjury[2]. He was charged that "in a judicial proceeding [namely, his trial for murder, he] knowingly gave false testimony to the effect that he … did not kill … Deidre Kennedy, and the false testimony touched a matter which was material to a question then depending in [his trial for murder]". On his trial for perjury, the jury returned a verdict of guilty. On appeal to the Court of Appeal of Queensland, that Court concluded that the trial should have been stayed as an abuse of process and that, in any event, the verdict returned by the jury was unsafe and unsatisfactory[3]. The Court ordered that the respondent's conviction for perjury be quashed and a verdict of acquittal be entered. 3. The prosecution seeks special leave to appeal from those orders, seeking to contend that, contrary to the conclusion of the Court of Appeal, the trial for perjury should not have been stayed as an abuse of process and the verdict returned by the jury was not unsafe or unsatisfactory. Argument of the application for special leave was confined, in the first instance, to argument of the issue whether the respondent could or should have been prosecuted or tried for perjury. 4. After the indictment for perjury had been presented against the respondent, but before he was arraigned, he made application under s 592A of the Criminal Code (Q) ("the Code") seeking, among other things, a direction or ruling in relation to the quashing or staying of the indictment[4]. The primary judge (Muir J) recorded[5] the respondent's submission in this respect as being that "where an accused person was acquitted of a criminal charge, the principles of res judicata or autrefois acquit prevented that person from being tried again in respect of the facts which constituted the offence [and that] [t]he offence of perjury … did not provide an exception to this rule, except where the accused person's evidence secured or may have secured the acquittal." The primary judge concluded that[6] the doctrines of autrefois acquit and res judicata did not prevent the bringing of the perjury charge laid against the respondent and that[7] the trial should not be stayed. 5. The respondent pleaded not guilty, stood his trial, and the jury returned a verdict of guilty of perjury. The respondent was not arraigned, and therefore was not called on to plead, until after the primary judge had ruled that the doctrines of autrefois acquit and res judicata did not prevent the bringing of the perjury charge against the respondent. The only plea the respondent made was, therefore, a plea of not guilty; he did not enter a plea in bar and did not demur to the indictment. 6. Under the Code the respondent had no available plea in bar to the indictment for perjury and, as we have said, he made no plea other than a plea of not guilty. Rather, the question was treated in the Court of Appeal, and in the application to this Court, as being whether there were grounds for the exercise of a discretion to stay his trial on the charge of perjury, as an abuse of process. This was said to depend upon a principle that the acquittal for murder was incontrovertible. The similarity of the evidence to be called and the factual inquiry to be made on the trial of the indictment for perjury to the evidence called and factual inquiry made on his trial for murder was said to reveal that the trial of the charge of perjury would controvert the acquittal for murder.