Saraswati v The Queen [1991] HCA 21

High Court of Australia Deane, Dawson, Toohey, Gaudron and McHugh JJ. Saraswati v The Queen [1991] HCA 21

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales. In lieu thereof order that the appeal to that Court be allowed, that the convictions be quashed and that verdicts of acquittal be entered on each charge.

Cur. adv. vult.

The following written judgments were delivered:—

1991, June 5 Deane J.

I agree with the judgment of Dawson J. I add some comments of a supplementary nature in relation to the applicant's two convictions of an act of indecency for conduct which involved an assault falling short of carnal knowledge. Subject only to the consideration that the offence of carnal knowledge did not involve an "act of indecency" as a specific element, these comments are also applicable to the applicant's third conviction.

It is commonplace for conduct which of itself constitutes a criminal offence to be an element of a different, and more serious, criminal offence. For example: s. 94 of the Crimes Act 1900 N.S.W. ("the Act") creates the basic offence of robbery (fourteen years penal servitude); s. 95 creates the more serious offence of robbery with striking (twenty years); s. 96 creates the even more serious offence of robbery with wounding (twenty-five years). The elements of the basic offence of robbery are among the elements of the offence of robbery with striking which are, in turn, among the elements of the offence of robbery with wounding. In the case of such statutory provisions, it is no defence to a prosecution of the lesser offence (e.g. robbery) to prove (or raise a doubt about) guilt of one or both of the more serious offences (i.e. robbery with striking and robbery with wounding). The reason why that is so is that a person who is guilty of robbery with wounding under s. 96 or of robbery with striking under s. 95 is also guilty of robbery under s. 94. That does not, of course, mean that a person can be convicted of both the basic offence and one or both of the more serious offences. If a person is convicted of any of those offences, the conviction is a bar to any further prosecution of the same conduct. If a person is acquitted of the lesser offence, he cannot subsequently be convicted of a more serious offence of which the conduct constituting the lesser offence is an element: see, e.g., Reg. v. Storey [1] . In some circumstances, a person acquitted of a more serious offence cannot be lawfully convicted of a lesser offence: on the same trial because of the rule against inconsistent verdicts; on a subsequent trial because of the rule "that where a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation, and whether such circumstances of aggravation consist of the offence having been committed with malicious or wicked intent, or by reason that the committal of the offence was followed by serious consequences" (Reg. v. Miles [2] ; and see also Reg. v. Weeding [3] ).