R v Wilkes [1948] HCA 22

High Court of Australia Latham, C.J. Rich, Dixon and McTiernan JJ. R v Wilkes [1948] HCA 22

ORDER Application refused.

The following judgments were delivered:—

Latham C.J.

I have the misfortune to differ in opinion, though not very strongly, from my colleagues as to whether we should exercise our discretion by granting special leave to appeal in this case. It was held by the Full Court that the learned trial judge should have directed the jury that if they acquitted upon counts one and two, they could not convict upon count three because their decision in relation to each of the counts depended upon the evidence given by the accomplice Prior. The Full Court has also held that in the circumstances it would be useless from a practical point of view to order a new trial because a jury upon the new trial must be told, it was said, that "as between the Crown and the accused it had been conclusively established" (that is, by the acquittals) "that they" (that is, Wilkes and his wife) "did not kill Mrs. Boulton, and, further, that they did not conspire with Prior and Mrs. Boulton to procure her miscarriage." I am not aware of any authority which shows that an acquittal conclusively establishes more than that some element, which often it would be quite impossible to identify, which is necessary to constitute the offence charged has not been proved.

The basis of the reasoning in the judgment of the Full Court is that the conviction on the third count is really inconsistent with the acquittal on the first two counts. In my opinion, as at present advised, there is no necessary inconsistency. It seems obvious that a jury might quite well find that A, B and C were guilty of concealing a body or placing a body in such a position that it would be difficult to ascertain where it had come from in order to hinder the course of justice without holding that the persons who did that were concerned in the death of the person whose body it was. The persons who concealed the body might have had nothing to do with the death. Here there was no direct evidence as to Wilkes and his wife procuring the abortion. The proposition that Wilkes and his wife procured the abortion rested entirely on inference, and it was open to the jury to accept the evidence given by Prior and to reject the inferences which the Crown sought to draw from that evidence.