New South Wales Court of Criminal Appeal CITATION : R v Vincent [2002] NSWCCA 110 FILE NUMBER(S) : CCA 60728/01 HEARING DATE(S) : 2 April 2002 JUDGMENT DATE : 2 April 2002 PARTIES : R v Thomas Anthony Vincent JUDGMENT OF : Heydon JA at 1, 25; Studdert J at 23; Levine J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0255 LOWER COURT JUDICIAL Hosking DCJ OFFICER : COUNSEL : Mr P G Ingram (Crown) Mr P Byrne SC (Respondent) SOLICITORS : S E O'Connor (Crown) The Law Practice (Respondent) CATCHWORDS : Court of Criminal Appeal - jurisdiction - Criminal Appeal Act 1912 (NSW) s 5F - provision conferring jurisdiction to hear appeals from interlocutory orders - whether orders below interlocutory or final - meaning of words "I discharge the accused" - whether distinction between discharge and acquittal - autrefois acquit LEGISLATION CITED : Criminal Appeal Act 1912 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL CCA 60728/01 DC 98/11/0255 HEYDON JA STUDDERT J LEVINE J 2 April 2002 REGINA v Thomas Anthony VINCENT Judgment 1 HEYDON JA: This is a Crown appeal purportedly from an order of Hosking DCJ, SC, made on 23 October 2001 discharging the accused. 2 This matter has been before the courts on many occasions but it is not necessary to set out any part of the chronology except the following. 3 On 16 February 1997 a dwelling at 1A Tara St Woollahra was damaged following an explosion. The Crown alleged that the accused and one Max Gibson deliberately caused the explosion. The accused was arrested on that day. Initially bail was refused but later granted on conditions. 4 On 4 June 2001, after several attempts to start a trial had failed, a trial commenced before Judge Stewart in the District Court. There were two counts. The first was: "On 16 February 1997 at Woollahra in the State of New South Wales the accused Thomas Anthony Vincent did maliciously damage a dwelling the property of Cascade Holdings Pty Ltd and Drulara Pty Ltd by means of fire". The second, which was an alternative to the first, was: "On 16 February 1997 at Woollahra in the State of New South Wales the accused Thomas Anthony Vincent did maliciously damage a dwelling the property of Cascade Holdings Pty Ltd and Drulara Pty Ltd". 5 On 21 June 2001 Stewart ADCJ, QC, directed the jury to acquit on the second count, which they did, on the ground that there was no evidence that the accused or Gibson "acting in concert intended to cause damage to these premises other than by fire". 6 On 25 June 2001 the jury announced that they were in disagreement on the first count. 7 On 27 July 2001 the trial was fixed to commence again on 22 October 2001. On that day it seems that a document was prepared indicating that it was "the present intention of the Crown to present an indictment in the following form"; the old count one was set out, with the new count two having been crossed out. 8 On 17 October 2001 the accused filed a notice of motion supported in due course by three affidavits. The notice of motion sought "An order permanently staying these proceedings against the accused". The affidavits set out a history of delay and of the prejudice allegedly caused to the accused, his wife and his children. 9 At the hearing before the primary judge the application was treated apparently by consent as "an application for the special plea in bar of autrefois acquit" or "a plea in bar in the nature of autrefois acquit". The primary judge concluded that the accused was entitled to maintain either of those two pleas and hence he did not decide whether or not to grant a permanent stay. 10 When the appeal was called on this morning the court invited attention to the question of its jurisdiction to hear the appeal. That jurisdiction can only depend on statute. 11 Mr P Ingram, who appeared for the Crown and whose submissions displayed admirable frankness and a sense of relevance, was asked which statutory provision he relied on. He said that only s 5F of the Criminal Appeal Act 1912 was relied on. The relevant provision in that section is subsection (2): "The Attorney General or Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies". There is no doubt that these are proceedings to which the section applies. 12 On being invited to identify what interlocutory judgment or order was the subject of the appeal counsel representing the Crown said that it was the concluding observation of the primary judge, "I discharge the accused". 13 There was some debate about what the primary judge intended, after he said: "I vacate the trial date of Monday 29 October 2001", by saying: "I will list the matter in the arraignment list on Friday 7 December 2001 at this court at 10am". 14 The Crown did not take any point to the effect that that listing in the arraignment list in any way qualified whatever flowed from the words "I discharge the accused". It seems that the primary judge had been informed that whatever the outcome of the argument before him the loser would appeal to this court and he was intending to preserve control over the matter in order to see whether any further steps needed to be taken in light of the outcome of the appeal. 15 It is not necessary to decide this but in my opinion strictly it would have been more desirable not to have listed the matter in the arraignment list because had this court had jurisdiction to hear the appeal and had the court been prepared to allow the appeal the matter would have returned to District Court to be dealt with in due course without the necessity of the listing made by his Honour. The discharge of the accused for the reason that he had successfully invoked the pleas was an unconditional discharge, terminating any connection between him and the District Court in relation to the matter. 16 Returning to the central issue, the question arises: what did the words "I discharge the accused" mean? Counsel appearing for the Crown said that the words "I discharge the accused" meant that the accused was discharged on the indictment. Counsel indicated that there was a possible distinction between "acquittal" and "discharge" on the indictment. Counsel said that he had no instructions to take any such point today in view of the way the matter has proceeded in the past and in view of the fact that the point had not been developed in written submissions. 17 I should say in fairness to both parties that the lack of development of any relevant point on this jurisdictional question in written submissions is occasioned by the fact that at a mention last Wednesday 27 March 2002 the possible absence of jurisdiction in the court was drawn to the attention of the parties for the first time. It was not a point which the accused had up to that point taken though the point has been taken in written submissions received this morning. 18 In short the Crown does not today wish to contend that there is any distinction between a discharge and an acquittal. The Crown accepts that the words "I discharge the accused" constituted an order reflecting successful reliance on the plea of autrefois acquit or a plea in the nature of autrefois acquit, and that, in substance, that order amounted to an acquittal. 19 It is to be noted the back of the indictment is blank. A more satisfactory course of proceeding would perhaps have been for the primary judge to have ensured that the precise order intended appeared opposite or under the words "Verdict" or "Judgment". That was not done. However, as indicated, the position of the Crown is that the substance of the primary judge's reasoning together with what he said taken with the other background circumstances are such that it is not intended to contend that what has happened is anything other than a verdict of acquittal. 20 An acquittal is a final order. There can be no appeal from it without statutory warrant. Since no statutory provision is relied on apart from s 5F, and since s 5F only applies to interlocutory orders, this Court has no jurisdiction to entertain the appeal. 21 In the circumstances the appeal should be dismissed. It is not necessary to consider the arguments of the parties on whether in substance the primary judge was correct in accepting the contentions of the accused that either the plea of autrefois acquit or a plea in the nature of autrefois acquit would have been accepted. Nor is it necessary to say anything about the accused's application to the primary judge which was not decided by the primary judge for a permanent stay, except that the background circumstances are regrettable. I, for my part, see considerable sense in the following observation of the primary judge: "If the point has not been reached where further continuation of the proceedings would constitute an abuse of the court's process, then at least that point cannot be much further away". In view of the outcome of the appeal it is not necessary to say anything further on that subject. 22 Accordingly, I propose that the appeal be dismissed. 23 STUDDERT J: I agree. 24 LEVINE J: I agree. 25 HEYDON JA: The appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.