Pearce v The Queen S87/1997 [1997] HCATrans 42 (12 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1997

B e t w e e n -

DOUGLAS WALLACE PEARCE

Appellant

and

THE QUEEN

Respondent

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 FEBRUARY 1998, AT 10.16 AM

Copyright in the High Court of Australia

MR M.A. GREEN, QC: May it please the Court, I appear for the appellant in this matter, together with my learned friend, MR G.P. CRADDOCK. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC: May it please the Court, I appear for the respondent with my learned friend, MR A.M. BLACKMORE. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Green

MR GREEN: Your Honours, this appellant, Douglas Pearce, committed serious offences and deserved serious punishment. With respect to the two offences which form the nub of the appeal, the appellant was in fact sentenced to 12 years penal servitude, comprising a minimum term of 8 years and an additional term of 4 years. Therefore, together with the cumulative sentence for the sexual offence, the appellant is serving 15 years, a minimum term of 11 years, and an additional term of 4 years.

Your Honours, we submit that the sentencing judge was wrong in not staying the indictment, in convicting the appellant on both offences with respect to the one incident, and in imposing additional punishment we argue is additional for the second offence. We submit that the New South Wales Court of Criminal Appeal erred in holding that there was no double jeopardy involved in the appellant's case and in finding that he had not in fact been given extra punishment. If your Honours require me to elaborate on my written submissions in that regard, that is on Justice Newman's finding that he was dealt with in truly concurrent fashion, which we say is plainly wrong, I am happy to do so.

McHUGH J: Your written submissions, if I might say so, are comprehensive. You should develop your argument as you think fit, but they are very comprehensive written submissions.

MR GREEN: Yes, thank you, your Honour.

KIRBY J: They do not really go into the detail of the factual development by Justice Newman. I mean, it is mentioned, but for my own part, if you want to demonstrate at slightly greater length what you say is the second element that you have just mentioned, then that might be helpful, that is to say, in fact, he was not dealt with as concurrent.

MR GREEN: Well, very briefly. It is perfectly clear on a reading of the exchanges between counsel and the sentencing judge and in the words of the sentencing judge in his judgment that he considered each of these offences - they were called counts 9 and 10 on the indictment - separately and, if that is the case, the ordinary principles of sentencing - and before he did that he had mentioned the principle of totality of criminality - and the ordinary principles of sentencing required him to punish - double punishment is not necessary, but to give him extra punishment precisely because there were two serious offences.

KIRBY J: But there was an added element in one of them and that was the break and enter.

MR GREEN: Yes.

KIRBY J: I mean, typically an Englishman's or Australian's home is their castle and to break and enter it is itself a serious matter and to break and enter it with the intent to inflict grievous bodily harm is an aggravating circumstance.

MR GREEN: Of course, and that was the whole intention of the legislature in reproducing the community concern about home invasions which was the basis of the enactment of section 110, yes, and, of course, there was the other element of intentional harm in the section 33 matter.

KIRBY J: What is your submission, that the Crown should, as a matter of prosecution policy, then you have your rights as well, simply have prosecuted for the more serious offence of break enter with intent to inflict grievous bodily harm and not the other?

McHUGH J: The break enter does not have the intent, does it?

MR GREEN: No, it does not. There is no doubt a general intention there, but not a specific intent, no.

McHUGH J: I would have thought 33 was the more significant offence.

MR GREEN: With respect, I think it is, and that appears to be what the prosecutor had in mind. That is how he described it, yes. In my ground I was suggesting the other way, that the section 33 be quashed and the other one put - I think on reflection, that your Honour Justice McHugh, with respect, is correct - - -

KIRBY J: That means that Parliament's intent in making special provision for break and enter, the community's alarm and concern about break and enter, are all put to one side.

MR GREEN: No, because it would not infringe the Di Simoni principle or Newman & Turnbull in Victoria if, on the section 33 offence that circumstance, that very serious circumstance could be taken into account under ordinary principles of sentencing because it would not then be seen as an aggravating fact which would lead to a more serious charge. So, it does not offend, as on that argument Di Simoni. If it is, if there is an element there, the Crown could have, beside section 33, charged him with a simple break and enter.

McHUGH J: If there had been a trial in this matter you could not have got any sort of stay, could you? The case would have had to go to the jury on the indictment.

MR GREEN: No. With respect, I would argue that this was something that was ventilated in the Court of Criminal Appeal. The two offences could have been on the indictment, but either they should have been presented in the alternative or the judge ought to have taken no verdict in respect of one or other; that is what should have happened, in our submission, your Honour.

McHUGH J: Well, that assumes that there is double jeopardy. In this case when you pleaded guilty to the ninth count, which I think was the section 33 count, why could you not, on your case, entered a plea then of autrefois convict in respect of the tenth count?

MR GREEN: Well, he could have, but that is effectively what he did because the application for the stay came before he pleaded guilty. That application was made before, quite properly, we submit of course, on the basis - and it is on the transcript - of double jeopardy or abuse of process and his Honour delivered judgment, refusing the stay, and it was only then that the appellant pleaded guilty to both offences. So, in effect, we say he was forced into that circumstance by his Honour refusing the stay.

KIRBY J: Why did he not have alternative remedies? I would have thought perhaps the first would have been raised a plea in bar in relation to the two offences, but then if that failed to seek a stay on the basis that there was effectively an overlap between the two offences charged. He had two remedies, did he not? One is his own remedy by way of pleading to the indictment and the other is an appeal to the court to prevent an injustice that would otherwise be done.

MR GREEN: Yes, he did but, your Honours, that is how it was done. That is how counsel saw it was the appropriate way to do.

KIRBY J: Can I go one stage back in relation to the prosecutor's decision because prosecutors are bound to act fairly in these matters? Has the New South Wales Director of Public Prosecutions published, as the federal Director has, guidelines on how to deal with these sorts of problems?

MR GREEN: He has certainly published guidelines. I am not sure if this problem is canvassed.

KIRBY J: Are there any that are relevant to this issue?

MR GREEN: Perhaps my learned friend can assist.

KIRBY J: I mean, we cannot control that but that is the stage at which one would have hoped that injustice would be avoided.

MR GREEN: It can be controlled, we would submit, also by this Court, an appellate court and all courts by relying on the common law and it was a matter that actually Justice Newman brought up in the Court of Criminal Appeal. He said it would have been preferable, even though finding against the appellant, had the charges on the indictment been expressed in the alternative so he was concerned enough to say that.

KIRBY J: You say it is not only preferable it was obligatory because of the substantial overlap between the facts giving rise to the separate offences.

MR GREEN: Absolutely, yes.

McHUGH J: Supposing - take a New South Wales example - somebody was charged with culpable driving and the prosecution relies on driving in a manner dangerous, there is a further element of inflicting grievous bodily harm on impact and there is also, or there used to be, a defence that the defendant could raise. Suppose the accused is acquitted of that charge. What is there to stop him being prosecuted for driving in a manner dangerous? It was done all the time in my time at the Bar.

MR GREEN: Back in the local court, the backup charges.

McHUGH J: Yes.

MR GREEN: On one argument, of course, that or - - -

McHUGH J: On your argument, you would have to stay the backup charges.

MR GREEN: As arising substantially out of the same offence. Although if it were something as light as the backup charge of negligent driving, the old "neg drivers" it was referred to, of course, maybe it could be argued that that is an entirely separate offence and entirely separate elements and considerations apply. But if it was anything more serious which encapsulated the facts or the same facts as the original offence, then it should be stayed, in our submission.

KIRBY J: I think, as you pointed out in many of the authorities you have cited, I think one of them from Justice Hayne in the Court of Appeal in Victoria, there are bound to be borderline cases in these matters. You just cannot escape the fact that there will be, if you are talking of overlap, differences of view and legitimate differences of view as to whether there is or is not.

MR GREEN: All courts have so expressed the problem, even the Code States, some of the judgments there that we have referred to have expressed the same - - -

KIRBY J: The clearer the rule that can be formulated the less opportunity there will be for disputation and appeals to courts of criminal appeal, wasted time and trials and uncertainty on the part of prosecutors and of accused.

MR GREEN: A classic case arises, if I might say so with respect, on the front page of the Sydney Morning Herald this morning, where in Western Australia a man - his dogs attacked and killed a lady in 1995. In 1996 he was prosecuted in the Magistrates Court, no doubt under some provision of a dog Act, for failing to control his dogs and fined $1,000. Yesterday he was convicted by a jury of manslaughter. Now, on our contention, it will not be surprising if that goes to an appellate court. The newspaper report did not indicate whether the point was taken at some stage, saying that it was a classic Beedie situation, the English Court of Appeal situation and there the English Court of Appeal, in similar circumstances, facts all square in one of the cases we have cited, said that a prosecution like that could only be continued if there were special circumstances. That court picked up the words of Lord Devlin in Connelly, which found that. So, it is a matter, in our respectful submission, of course, of application of some importance.

McHUGH J: Can I get this clear. Do I understand you to be saying that there is a principle of double jeopardy which goes beyond what used to be known as the doctrine of autrefois acquit or autrefois convict?

MR GREEN: Yes. That principle is firmly rooted in the common law way back as far as Wemyss v Hopkins and - - -

GUMMOW J: Lord Blackburn in Wemyss v Hopkins referred to a work called Paley on Convictions.

MR GREEN: My researches, I regret to say, did not extend to that.

McHUGH J: It is well-known work in the last century on summary - I think it was on summary convictions.

MR GREEN: And, indeed, as I said, as far back as 1875 Justice Blackburn referred to it as a "well-established rule at common law" and different from autrefois convict. It was picked up by the Victorian Supreme Court in Weeding, for instance, (1959) VR 302, where it set out much the same principle. It referred to it as not being a strict plea of autrefois convict but a plea analogous to autrefois convict. That is that a person:

should not be put in peril of being twice punished for the same act or omission resulting in offences of the same character, but of greater or less degrees of aggravation.

GUMMOW J: But Lord Blackburn was talking about punishments for the same offence and that was in the context of submissions using the same words as were later used by Sir Samuel Griffith here, namely `the nature of the evidence necessary to support the second indictment", et cetera.

MR GREEN: Yes. But what - - -

GUMMOW J: That is different from the South Australian view of it - - -

MR GREEN: Yes. I will come - - -

GUMMOW J: - - - which purports to rely on Wemyss but just does not rest on it, from what I can see.

MR GREEN: Yes.

GUMMOW J: It just comes from nowhere.

MR GREEN: I understand, of course, what your Honour is saying, but the South Australian judges did not see it that way; they saw it as being firmly rooted in Wemyss and also in Connelly.

GUMMOW J: It is not, if you read the case.

MR GREEN: The cases I am citing now, the importance of them, in our submission, is they refer to this analogous principle, which is not autrefois convict or acquit but - - -

GUMMOW J: Yes, that certainly is said in Wemyss.

MR GREEN: Yes. Of course, the same principle is acknowledged by this Court in Storey, we would say in Hoar and in Saraswati.

KIRBY J: Have I understood the Code States correctly to the point that the Code states look not at whether there is an overlap of the offences but at the facts and circumstances and that therefore we have got in Australia the Code States where it does seem, as I think Sir Samuel Griffith said, that it may be that the Code has pushed the common law forward. We have got South Australia, where they have pushed it forward to facts and circumstances, but New South Wales resolutely holds out to overlap of offences. Is that a correct understanding of where the jurisprudence stands at the moment or not?

MR GREEN: We would submit not quite, your Honour, because in New South Wales in Dodd, for instance, the Chief Justice of New South Wales, in our submission, clearly reflects Wells in O'Loughlin and, if I might, could I take your Honour to that just in a short time.

KIRBY J: Yes.

MR GREEN: So we do not disagree with what your Honour is saying but I think there is a good argument that there is this difference in judgments, difference in application of the common law principles in New South Wales.

KIRBY J: I rather gather from the Crown's submissions that the English and American position is fairly strict in terms of overlap of offences, that the United States in Dixon has moved back to - - -

MR GREEN: To the Blockburger test, but that is not the English position at all, with respect. The English position in common law is clearly established to be much more flexible than that and more akin to ours. We do not see a great contrast between what we say is the common law position in Australia and that in England. In Connelly (1964) AC despite, we would say, some differences of opinion on some matters, in particular the application of autrefois in its extension, our submission is that all of their Lordships restricted the doctrine of autrefois convict and acquit to situations where the offences were strictly the same or substantially the same.

They all allowed, in our submission, some extension to that general rule in terms of Veen, Elrington, Miles and other cases, that extension being allowed where the second offence was based on the same facts in more aggravated form or where the first offence contained an essential element of the second. However, it appears that Lord Devlin, in particular, saw this extension as part of some discretionary power of a court "to stop vexatious process". He used these words at page 1358 and he appears, in our submission, to have further widened the principle at 1359 where he says this at the bottom of the page - I should go back to 1358 where he said:

the principle stated by Cockburn CJ as applied in Reg v Miles -

that is the extension by the two means that I have just described, your Honours -

necessarily goes beyond the principle of autrefois. I consider it very desirable that the two principles should be kept distinct, for one gives the defendant an absolute right to relief and the other only a qualified right.

A little further he says:

I prefer the modern development of this principle which justifies it by the power to stop vexatious process.

Then at the bottom of page 1359 he says:

The result of this will, I think, be as follows. As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment.

HAYNE J: But his Lordship is speaking there, is he not, of successive trials, not a singular trial? Does anything turn on that?

MR GREEN: We would submit, your Honour, that that principle also applies to two offences as this in the one indictment.

HAYNE J: How? How is the judge to determine which of the charges ought be stayed at the outset of the proceeding?

MR GREEN: He should ask. In ordinary circumstances we would submit that he should ask the prosecutor to elect.

KIRBY J: What if the prosecutor obdurately says, "I decline to elect - - -?

MR GREEN: Then he should step in, in our submission, and stay one or, alternatively, allow only one plea, one verdict, in respect of the two charges on the indictment.

HAYNE J: The two are very different. To say that he should allow only one plea or take only one verdict are two very different steps. Which is it that you contend? Do you say that the judge should intervene at the outset or is this a rule which you contend has application after the jury's verdict has been taken or at the point of taking the jury's verdict?

MR GREEN: It is all, with respect, your Honour, highly arguable because, if the nub of double jeopardy and abuse of process lies in duplication of punishment, as suggested, for instance, in Richards, the English case, and that punishment, as your Honour found in Sessions, for instance, is not simply the punishment inflicted but conviction itself.

HAYNE J: Because that was what the Sentencing Act of Victoria provided, but leave that aside.

MR GREEN: I think your Honour said in respect of some other matters that common law principles would have led you to the same result. If you take the far right position, if I might refer to it as such, that the common law - and there is some suggestion in the Code States and I think it was mentioned by your Honour in Sessions, section 51 of the appropriate Victorian Act - did not prevent prosecution but prevented punishment. If that is the case then, there would be nothing wrong with a judge allowing a defendant or an accused to plead guilty to two offences but then not allow him to be convicted and to be punished in respect of the two.

KIRBY J: That offends the non vexare principle because the accused is then being vexed twice.

MR GREEN: Exactly. If you go back to suggest that the root of the principle is as your Honour expressed in Cooke v Purcell, not just the avoidance of punishment but the avoidance of harassment - I think your Honour's word was vexatious - and that the double jeopardy starts when a person is threatened with more than one offence or more than one prosecution - - -

HAYNE J: Or more than one trial, and they are three very different propositions.

MR GREEN: Yes.

HAYNE J: At some point I would be much assisted if you would identify which of those three is your contention.

MR GREEN: We take the latter. We submit that really double punishment and vexatious prosecution are two sides of the one coin.

McHUGH J: Is that right? Take this very case: on your concession, the section 33 offence was the more serious offence. Why was not the prosecutor entitled to go to a jury on both charges on the basis that the jury may not be convinced beyond reasonable doubt that there was the intent to inflict the harm?

MR GREEN: On our principles, our submissions in relation to the common law, he was only entitled to do that by the use of alternative charges; not both. Not additional ones. Not allowing a jury the possibility of returning verdicts of guilty to both.

McHUGH J: If you look at the two sections, why is not the gist of section 33 the intention to inflict grievous bodily harm, whereas the gist of section 110 is breaking and entering a dwelling house where grievous bodily harm is inflicted? So they are dealing with two very different social situations.

MR GREEN: Your Honour, this is where the arguments and the difficulties arise, precisely, in the view that a judicial officer, a prosecutor, takes of these situations. That is what, of course, it was precisely that view that the Court of Criminal Appeal took. Justice Newman identified gist or gravamen with elements.

KIRBY J: You are entitled to say, are you not, that the actual acts of the accused for which he is going to be punished for his antisocial conduct are exactly the same. He goes in, he has the wooden - - -

MR GREEN: Absolutely. Table leg.

KIRBY J: - - - object. He moves towards this person who he knew was living alone; he strikes him, he hits him, he then leaves. He knows that it is his home and then he leaves. All those acts, the facts are exactly the same.

McHUGH J: I have difficulty accepting that because, in respect to the 110 count, is the question of the breaking and entering, and the question of intention to inflict is not a relevant aspect.

MR GREEN: Your Honour's point, we say, is only good, if we could say this with respect, if you identify concepts like gist and gravamen, or the Queensland cases of what he did. I will come to them later. They are only good if you identify them with elements. If you do not, and the common law, our submission is, that that is not the common law and it will be necessary for me to take your Honours to those parts of the common law where I suggest that is right.

McHUGH J: You may be right, but I must say - I am only just relying on general recollection - I thought that the distinguishing features were really matters of aggravation. If you are charged with assault and convicted, then you later cannot be charged with assault with causing certain harm, et cetera, although there has always been a problem in the case I think Justice Hayne referred to when he was on the Court of Appeal about somebody charged with assault and then later the victim dies. Can you charge the person with murder?

KIRBY J: That might be the Western Australian case.

MR GREEN: In Justice Hayne's case, as he then was sitting in the Court of Appeal, those two cases, if you look at the elements, they were clearly different, we would submit with respect, but Justice Hayne correctly, with respect, decided that the two offences arose from one and the same act and he did not only have to rely on section 51, I think it was, of the appropriate Victorian Act; he said correctly too, we would submit, that under common law principles the result would be the same. So that what we are looking at under O'Loughlin, "gist and gravamen", and that has been reproduced in New South Wales in Dodd and by the Chief Justice in the other case, Environmental Protection Authority (NSW) and in O'Loughlin they looked at facts, circumstances - I can take your Honours to those two. It has never been the common law, unlike, we would suggest, with respect, the Crown's submission; it has never been an elemental test. That might be the test in America. It has never been the test in the common law of England or Australia and we submit, of course, nor should it be.

KIRBY J: What is wrong with that test though, because if you take what Justice McHugh has pointed out, you have two offences, each made by Parliament, one of them focuses upon the break enter and the other upon the intent - - -

MR GREEN: Yes.

KIRBY J:- - - and in that sense they are focused to some extent on the same fact, but there is an added ingredient different in each one. Now, what is wrong with an approach that says you focus on the offence and if they are slightly different, well, you just go ahead? In an extreme case a judge can stay, but the judge will fix this all up at the point of punishment and make sure there is not a double punishment.

MR GREEN: Well what is wrong with it is, it is an abuse of process, in our submission, on the principles we have already talked about, and the other problem with Justice - - -

KIRBY J: In the United States where they have a constitutional prohibition, constitutional guarantee against is, they seem, in that great country with their huge population and lots of crime, to get by with this approach: focus on the offence and the judge can fix it all up at punishment.

MR GREEN: Well, it is yet to be seen if they are seen to get by, with respect After Grady v Corbin, Dixon of course overruled it rather strongly because it was suggested they were not getting by with the Grady v Corbin extension majority verdict, of course, against a multiple punishment, so it is yet to be seen, but the other problem, with respect, with Justice Kirby's scenario is that, of course, if it is just a question of aggravation, that offends the age old common law principle of Elrington, where you cannot have two offences where one is simply an aggravation of the first, and that is one of the problems, we would suggest, in this particular case.

KIRBY J: It is not really aggravation; it is a different definition, a slightly different focus. One is looking at the factor of break enter; the other is looking at the intent to cause grievous bodily harm, with intent to do so, as distinct from doing it in the course of a break enter.

MR GREEN: Yes. Well we have no problem, of course, with that description, your Honour, but what we would say is that the ordinary principles of common law impose on a court and a prosecutor a process of dealing with that properly, and the proper process in this case was to encapsulate it in one offence, whatever offence the prosecutor saw as the more serious offence, and the other matters which are concerning your Honour, the other aspects of it, the breaking and the entering, all of those matters could be taken into account.

Here, it is not one of those cases where it was possible for the Crown to divide, very artificially, the evidence that, for instance, could be led at one trial in respect of one offence and a second trial in relation to another. As your Honour Justice Kirby has said it was a sequence of breaking in, serious injury and the stealing of items.

Now, it would have been as artificial and unreal as his Honour Justice Hayne's situation in the Victorian Court of Appeal to divide that particular act into the two as the director was suggesting in that case. It would have been just as artificial for the Crown to insist on that artificial distinction to support the views that the gravity of the situation could only be expressed by means of the bringing of two offences. That simply was not the case.

McHUGH J: Do you concede that in this case, in addition to the section 33 offence, the Crown could have charged the accused with an additional count of simple break and enter?

MR GREEN: Yes, but we would submit, it did not have to.

McHUGH J: The problem, once you make that concession, if we put against you that what 110 does is to add an aggravated form of breaking and entering. It is not mere breaking and entering but breaking and entering that leads to an assault or the infliction of grievous bodily harm upon a person. So why cannot the Crown charge the aggravated form of the offence that you concede that they could charge anyway?

MR GREEN: We would submit, on the principles of common law on which we rest, that that is double jeopardy, that that is double punishment, the charging, the conviction, the extra punishment, that must necessarily follow.

KIRBY J: Your argument must be that the pith and gravamen of the grievous bodily harm is so similar in each offence that the overlap makes it offensive to principle and unjust that your client should be put on trial on those.

MR GREEN: Yes, we do.

HAYNE J: You slide between double jeopardy and double punishment. Again, may not the two have to be kept very separate?

MR GREEN: Yes.

HAYNE J: There are many elements to a criminal trial. The prosecutorial discretion whether to charge. If the charges are brought, what verdicts are taken, then what punishment is to be inflicted.

MR GREEN: Yes.

HAYNE J: Yes, well which is your contention? A contention about double jeopardy or a contention about double punishment?

MR GREEN: We would submit that double punishment is taken up. It is comprised in the concept of double jeopardy, your Honour. Double jeopardy and abuse of process are co-extensive principles and they involve, as I think I have submitted earlier, prosecution, double prosecution, double conviction and double punishment.

KIRBY J: They are very different as to what point you stop the process. One is stopping it at the outset. The other is stopping it before punishment is effected.

MR GREEN: Yes, they are.

KIRBY J: They are different and they fix the point of time at which the judge must start making decisions so we have got to get it very clear conceptually in our mind as to what - we just cannot make it up. It has got to be either laid down by authority or consistent by analogy with past authority. If you want it made up you have got to go across the rose gardens.

MR GREEN: I will seek out some, perhaps, authority or some principles of authority. I do not think I can express our overall proposition any better than that.

McHUGH J: But why could not the judge in this case say, "You have broke and entered, and you have inflicted grievous bodily harm upon this 72 year old man, and for that I am going to impose a lengthy sentence on you. But, in addition, under the section 33 count, you intended to inflict grievous bodily harm, I am going to sentence you for that intent of doing that". Now, it may be that the judge would do it in a way that he would make one concurrent with the other or she might give a smaller sentence for one than normally, but why cannot the judge deal with both as long as there is no double punishment for the same act. That is, that you are not being punished for the infliction of the grievous bodily harm twice.

MR GREEN: Because it offends the earlier principle, what your Honour has put to me, of the second charge being the first, in a more aggravated form. Now, that is clearly routed. That prohibition in Connelly is clearly linked - one extension, small extension, allowed to autrefois convict.

McHUGH J: I do not see it that way at the moment, Mr Green. The aggravation of the break and entry is the fact that grievous bodily harm was inflicted and for that, you are punished. But, in addition, this is not an ordinary case of somebody - burglar breaking and entering and, in the course of the burglary, inflicting grievous bodily harm. This is a case where there was a specific intention to do it. So it introduces another element of criminality and as long as that is what was emphasised, and the person is not punished twice for inflicting grievous bodily harm under 33 and 110, where is the injustice?

MR GREEN: Well, just on that last point, unless the judge specifically announces it, he will be punished twice. There is no question about that, in my submission, and that is my earlier submission in relation to this case. His Honour at no stage said, and the Chief Judge of Common Law, Justice Hunt, was concerned about this, and he commented. He said, the sentencing judge, although he did not refer to the principle that he was punishing him twice for the same - - -

McHUGH J: Well, I must be quite frank, and the Crown will have to deal with this, I am quite concerned about it myself. I think it is reasonably plain to me, anyway, that this accused was punished under each offence for the fact that grievous bodily harm was inflicted. It does not necessarily mean that there was a miscarriage of justice in this particular case but, reading the judgment, it does, at first instance, it is the impression I had.

MR GREEN: If he has one offence he gives one offence, if he has two offences, he is bound to give him some, not necessarily double, but extra punishment. Whether he describes that by way of cumulative or concurrent sentence is immaterial.

McHUGH J: Or the totality principle.

MR GREEN: The totality principle is the important one, yes, of course.

McHUGH J: So that is why, it seemed to me reading the papers again yesterday, that your strongest argument was double punishment rather than double jeopardy, as such. My inclination, at the moment, is along the lines that Justice Haynes has been putting to you, there is a real distinction between double jeopardy and double punishment.

MR GREEN: Yes. Well, looked at in those terms, yes, there must be because in Justice Hayne's case in Victoria, of course, I think the relevant legislation allowed for - as though I think most of the Code States allows for double prosecution, but not double punishment.

KIRBY J: Victoria is not a Code State.

MR GREEN: No, but it has this section 51, of course, of the Interpretation of Legislation Act, which is very similar, as Justice Hayne found I think, to section 16 of the relevant Code.

KIRBY J: And is there a similar provision in the New South Wales Interpretation Act or not?

MR GREEN: No, there is not. No, the only legislative intrusion into that field is section 57 of the Acts Interpretation Act which prohibits double punishment but in respect of interstate acts, yes.

HAYNE J: If the principle then is one of double punishment and the judge is sentencing for the aggravated burglary, that is the break, enter and grievous bodily harm, may the judge - should the judge in formulating a sentence for that offence take into account the fact that the grievous bodily harm that was inflicted was inflicted with specific intent to do so?

MR GREEN: I looked at that question. There seems to be no support in the authorities. Indeed, there are some dicta in some of the authorities I found - and I will attempt to find them - that he would not be allowed to take that into account, that is, in a comparison of acts or looking at acts or omissions they refer rather to extraneous things, extraneous actions, and not the mental element that go together with them. I was initially attracted to the proposition and that is why I put the ground in the terms that I did, that he would be able to take into account on section 110 the intentional infliction of harm.

I think there is an argument in the authorities that that is not the case and, therefore, I rather persuaded myself that the preferable thing in this case would be to prefer the section 33 charge against - that is how it should have been done, we submit, and in that case he could take into effect the break and enter, the infliction of grievous bodily harm, the stealing and all the circumstances, not only because - well, your Honour was able to rely in Sessions, of course, on the relevant provisions of the Victorian Sentencing Act. Well, we do not have those provisions in New South Wales, but under ordinary principles, as I submitted at the outset, it would not have offended Di Simoni to take those circumstances into account if the section 33 had been preferred against the appellant.

McHUGH J: In the ordinary case before, say, a magistrate where somebody is charged with driving under the influence, is the magistrate entitled to take into account the driving under the influence resulted in an accident?

MR GREEN: No, not if he is only charged with that specific statutory offence.

McHUGH J: Yes, that is right. That has always been my understanding.

MR GREEN: Yes.

HAYNE J: Is he entitled to take into account the fact that the accused deliberately went out and got himself drunk before driving?

MR GREEN: Yes, I think he possibly is, your Honour.

HAYNE J: What is the difference then with the break, enter and inflict grievous bodily harm? Why can he not take into account in sentencing the fact that the infliction of GBH was intended, specifically intended?

MR GREEN: With respect, I think there is a good argument for it, but I sought some support in the authorities, and it does not seem to be, in so far as it has been canvassed, there does not seem to be. In particular, I think it was the Queensland case of Phillips v Carbone, (1992) 10 WAR 169, if I can find it. I think it may have been discussed in that particular case. That case was certainly authority for the proposition that act or omission are not to be confined to actual physical acts or omissions. They are to be given a wide interpretation, and there is no support in that case, as his Honour Justice Ipp found, that they should be confined to merely elements and particulars. At page 181 of Phillips v Carbone in the judgment of Justice Nicholson, his Honour says, starting from about line 12 or 13:

The identification of "act or omission" with elements also has the consequence that it would bring into the concept of "act" elements of intention which, as has been seen, have not formed part of the concept of actus reus.

In my view an "act" is to be understood in the same sense of "doing" and the reference to "act or omission" is to be understood as a reference to action or lack of action: the "doing" which attracts liability to punishment. The "doing" excludes mental elements.

That was the only case that I could find that dealt with that question specifically. Certainly, if one looks at the various tests in Connelly, for instance, in so far as they are discussed, Lord Morris talked about offences or charges. Lord Devlin talked about offence meaning not just the facts which constitutes the crime, but the legal characteristics which make it an offence.

KIRBY J: Can I ask you whilst you are on Connelly, there was a difference in Connelly between Lord Devlin on the one hand, and the other Law Lords on the other, or there seems to be a difference of emphasis. Lord Devlin being more enthusiastic for a stay to prevent unfairness, and the other Law Lords being rather more cautious.

MR GREEN: Yes.

KIRBY J: Is it a possible solution - for my own part I am not all that happy about dealing with it only at the point of punishment, because that really offends a fundamental principle the law should not be vexed. Is it a solution that is conformable to the way Australian law has developed to, as it were, support what Lord Devlin said as to the large power, and in appropriate cases, duty of a judge to prevent an unfair prosecution for what is, in substance, an offence based upon the same facts?

MR GREEN: We would submit precisely that.

KIRBY J: Is that what the English Court of Appeal in Beedie has done? Did they embrace Lord Devlin's minority view rather than the somewhat rather stricter view of the other Law Lords?

MR GREEN: It is only the minority view, of course, in that - there was only one of their Lordships which held there was no discretion. That was Lord Hodgson. In Beedie that court, I thought, with respect, rather surprisingly held that Lord Morris also disputed the existence of a discretion. I do not think he did; indeed, he referred to it but in a very limited way. Their other Lordships acknowledged it, specifically, as your Honour Justice Kirby has said, Lord Devlin, strongly, but also Lord Pearce. He, at 1361, said there is an inherent power in the Court to prevent abuse of process, and at 1365 that the narrow view of autrefois does not comprehend the whole of the Court's power. So that is the view.

KIRBY J: They appear, at least as far as the headnote is concerned, to have taken the farther's strict view that autrefois convict must be defined in terms narrowly, they say, of the same offence. So that is conformable with where the United States Supreme Court has come back to in - - -

MR GREEN: Yes. But also in Connelly they go on to acknowledge quite clearly the extension - what they refer to as the extension - as a principle, that is to autrefois - in cases, for instance, where the second offence is the first in more aggravated form or where the first is an essential element of the second. The difference - - -

KIRBY J: It would be rare, if ever, that the Crown would charge exactly the same offence on exactly the same facts. I mean, that just does not arise.

MR GREEN: Of course. Of course.

KIRBY J: So that there is going to be variants and therefore the question is how the law responds to that, or how the common law has responded to that in the past.

MR GREEN: Yes. Our respectful submission is Justice Wells was correct in identifying the differences among their Lordships in Connelly as more matters of emphasis rather than substance or principle. It seems to us that the difference between Connelly and O'Loughlin, at least on one argument, is this, that whereas their Lordships, at least in the majority, saw that there were basically two principles, and one of them was the strict autrefois convict or acquit and the other one the extension of that, but Lord Devlin saw that more in terms of the Court's power to stay abuse or vexatious process.

In O'Loughlin the judges of the South Australia Supreme Court, in our submission, identified three clearly distinct principles: the autrefois, the analogous principle, which they saw in, it might be suggested, or it has been suggested, perhaps a more expansive form, but a plea in its own right, not a discretionary plea where the facts were substantially the same, or the acts and omissions were substantially the same. They saw that as a plea in bar.

KIRBY J: But not a plea of autrefois acquit.

MR GREEN: No, and not a discretionary process either.

KIRBY J: I have never heard of that.

MR GREEN: Pardon?

KIRBY J: Is that something that has been recognised in Australia?

MR GREEN: In Dodd. I think that has been - our submission is, your Honours, that that has been recognised by the Chief Justice of New South Wales in Dodd. In (1991) 56 A Crim R 451 at 457, the last paragraph:

Notwithstanding the force of the reasoning of Lord Devlin and Lord Pearce in Connelly, the balance of authority in England and Australia is in favour of the proposition that the appropriate means of giving effect to the principle on which the applicants are entitled to rely is by way of a plea in bar, rather than an application for a discretionary order staying proceedings.

He cites Miles.

KIRBY J: But is not a plea of autrefois convict a plea in bar? Is that what his Honour was referring to?

MR GREEN: No, no, he is saying this is a separate plea in bar. It is not a plea of autrefois acquit or convict, it is a separate plea in bar, as of right.

KIRBY J: When you rise in your place to make the plea, how would you describe it: "This is a Dodd plea, your Honour"?

MR GREEN: Yes.

KIRBY J: It is just something completely new.

GUMMOW J: It follows what Lord Blackburn said.

MR GREEN: Yes, indeed. Strangely, if I could say so, with respect, his Honour the Chief Justice did not refer at all to O'Loughlin in Dodd but that accords, in our submission, with the Wells' interpretation of Connelly. His Honour the Chief Justice, of course, in the other case, Environmental Protection Authority v Australian Iron & Steel (1992) 28 NSWLR 502, does there, of course, canvass the matter perhaps more extensively and he does there look at the Supreme Court of South Australia view and, indeed, he uses the words "gist or gravamen" at page 508. On page 509 he solves the problem or finds that the two offences in that particular case, in EPA and AOR, even though they fastened on to different aspects of different statutory prohibitions, quite clearly different offences - - -

KIRBY J: Now can I just get your conceptual framework. First, there is the ancient plea of autrefois convict. Second, there is the Blackburn Dodd plea of a plea in bar that there is the same gist or substance.

MR GREEN: Yes, an analogous plea.

KIRBY J: Third, that there is lying in the background the ultimate judicial obligation to ensure the fairness of the trial against vexation and that that lies first at the point before the trial goes on but secondly, if the trial is allowed to go on it lies at the point to prevent double punishment. Fourthly, that there is, in any case, an obligation in sentencing to avoid double punishment and to make sure that you do not punish twice for the same facts if they happen to be the facts relevant to separate offences which the law permits and which has gone to trial.

MR GREEN: Yes, that is precisely our total submission.

KIRBY J: Of course, there is one step before that that a prosecutor for the Crown should, acting with a fairness that is expected of prosecutors, ensure that people are not put to trial on matters which are, in substance, on the same facts.

MR GREEN: Of course, yes. We say that the principles we are espousing are firmly rooted in the common law given some discussion and some argument and they have been reproduced in New South Wales in the two cases quoted but not followed in the other two cases, in particular Justice Abadee in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 where a very similar situation obtained as in EPA and AOR and yet, his Honour found that those two offences were not coextensive, were not the same, could not be prosecuted.

It is significant, in our submission, that both in that case and in AOR there was no reference whatsoever to - in AOR it turned on a different set of circumstances and principles. In SPCC, certainly his Honour canvassed the authorities but there is no reference at all to discretionary principles by Justice Abadee in his judgment in the latter case.

McHUGH J: Your argument must require this Court, if it accepts it, to reject what Chief Justice Griffith said in Li Wan Quai, must it not?

MR GREEN: No, because that was a - - -

McHUGH J: So far as double jeopardy is concerned anyway, because the evidence necessary to support either of these charges would not have been sufficient to make out the other one, would it? Section 33, you prove infliction of grievous bodily harm and intent, but that would not get you to the 110 charge because you had to prove breaking and entering. Likewise, if you prove the breaking and entering and the mere infliction of grievous bodily harm, that would not make out your 33 case.

MR GREEN: But Li Wan Quai is referring, in our submission, to the strict principle of autrefois convict. We have no problem with that principle at all.

GUMMOW J: Is that right? Has anyone looked at Archbold 21st edition?

MR GREEN: I have not, your Honour, no.

GUMMOW J: That is what Sir Samuel Griffith was referring to.

MR GREEN: In Li Wan Quai what Chief Justice Griffith said was:

In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first.

But I would have thought that he was referring to the strict plea.

McHUGH J: He spoke about jeopardy, did he? At page 1130 he said:

Another objection was taken in the nature of a plea of autrefois acquit, or, as it is better stated, on the ground that a man may not be twice vexed for the same cause.

In that context he went on to say that:

In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first.

That seems to state a principle that this Court has accepted. What do you say about that?

MR GREEN: What we say is quite clearly and specifically referring to autrefois acquit. We have no problem with that but that does not express the whole of the common law and certainly not those parts of the common law which extend it in Connelly or which redefine it.

McHUGH J: You say he is only dealing with autrefois - - -

MR GREEN: Well, he said that specifically, as your Honour read from page 1130.

McHUGH J: He says that was the objection taken but he says that "it is better stated, on the ground that a man may not be twice vexed for the same cause".

KIRBY J: That seems to be the plea in bar, that seems to be the alternative, is it not?

MR GREEN: It depends on how it is expressed. I mean, that is how it was expressed by some of the judges in Connelly and O'Loughlin of course regarding the plea in bar, yes. That is a very early test, whatever it may refer to, in 1906.

GUMMOW J: Maybe, but this Court binds all these other courts who do not seem to be referring to it. One starts here at the top, not underneath.

MR GREEN: Yes.

GUMMOW J: One starts looking at things as they have been decided in this Court, not as some course of authority in inferior courts which have chosen fully to concentrate on the jurisprudence in this Court.

MR GREEN: The other thing that that particular test raises of course, whether such a plea is sufficient bar in any particular case, is whether the evidence necessary to support the charge would have been sufficient. If that is read in general common sense terms of course, the evidence in this particular case, no matter how the Crown charged the appellant, would have been one and the same and would have been sufficient for a jury to convict him on one or other of the charges.

McHUGH J: No, it would not have. The evidence that would have proved each charge would not have been sufficient to prove the other.

MR GREEN: Factually, your Honour, it would have been; the facts would have been. The Crown would not have led - for instance, if it had only proceeded against the appellant in relation to the section 33, "intentional infliction of harm", it would have led the whole circumstances to prove the intention, the breaking and entering.

McHUGH J: Well, I am not sure about that. I am not sure whether it would be admissible. Ordinarily if he had been put up on the section 33 on the trial, they would not have been able. Then there was no section 110; they would not have been able to prove the breaking and entering.

MR GREEN: With respect, your Honour, that is a - - -

McHUGH J: They might do it as a background fact but not as to explain the course of conduct; it would have no legal significance whatever.

MR GREEN: All his actions, in our submission, would have legal significance and relate to the leading up to establish his intentional infliction.

CALLINAN J: Addresses to the jury would have been entirely different though, would they not have? The prosecutor would be inviting the jury to infer an intention. So too with the sentencing judge: he would be invited to infer an intention.

MR GREEN: Yes.

CALLINAN J: So, it is not really right to say that the facts would be necessarily the same.

MR GREEN: Well, that is our submission, the interpretation of them, and the addresses, as your Honour says, of course, would put different spins on them, no doubt.

KIRBY J: But it could go beyond a spin, because you could have, for example, evidence of a past relationship of hostility that would be relevant to an intention but completely irrelevant to the offence of merely breaking and entering. So that it would affect the admissibility of evidence as well.

MR GREEN: Yes, there would be those questions.

KIRBY J: You cannot get away from the fact that the law has defined two separate offences with separate ingredients; the question is how one responds to that to prevent an injustice being done. One thing that has happened since Li Wan Quai is that there has been a development in the understanding of the common law, the power and duty of judges to protect against double vexation and against injustice and abuse of process and this Court has recognised this in Spautz v Williams and in Jago and those other cases. So the question is how, conformably with what was said so long ago as Christie, we can deal with the case of injustice in a line that runs through Connelly to this latest English case and is consistent with what has been said in Jago and Spautz.

MR GREEN: Yes. My learned junior has just referred me to what his Honour Justice Dawson said in a passage that I think I have cited in Saraswati v The Queen (1990-1991) 172 CLR and his Honour at page 13 was talking about Pople's Case and at about point 4 says:

Moreover, if the prosecution chooses only to charge an accused with indecent assault where the facts would support a charge of rape or unlawful carnal knowledge, there is no reason why he should not be convicted of the lesser charge. If he were convicted and the prosecution subsequently chose to charge the same accused with the more serious offence arising out of the same facts, he would have available to him a plea in bar, not strictly a plea of autrefois convict because he would not have been convicted of the offence in the form charged, but based upon "the well-established rule at common law-

et cetera, and his Honour relies on those English cases, in particular Wemyss v Hopkins.

KIRBY J: Well, that does seem to cement the notion that there is autrefois acquit and then there is this somewhat more nebulous Wemyss-type idea.

MR GREEN: Yes.

KIRBY J: And that that is a pretty well grounded principle, including in our jurisprudence. Can I ask you, what do you say in response to the Crown's answer to your suggestion that the judge should have provided relief by way of prevention of double vexation or abuse of process, that this is a discretionary matter; the judge acknowledged it and he dealt with it and refused it. Now, what can we possibly do in that sort of case?

MR GREEN: The problem is, and the error lies in this, that in his judgment Justice Ireland did not canvass all of the common law in relation to this question and he at no stage referred to the discretionary power in the court that we have been talking about for some time, nor did their Honours in the Court of Criminal Appeal. Indeed, his Honour made the same mistake, the sentencing judge, we would submit, as their Honours in the Court of Criminal Appeal in identifying this problem as one of comparison of elements and he used Grady v Corbin, for instance, and he used that part of Grady v Corbin, as I recall it, that referred largely to the Blockburger test. He identified the difference in elements and left it there. Now, that is clearly not the whole law and their Honours in the Court of Criminal Appeal approached it in the same way.

Where the Crown Prosecutor submits that the solution to the problem is essentially an elemental test, as I have already submitted, we submit that the State decisions on the Codes lay that to rest once and for all and I have referred to that particular case, a Western Australian case of Phillips v Carbone. For the rest, your Honours, I rely on my written submissions in relation to the Code States.

KIRBY J: Why are we concerned with the Code States? I mean, it is interesting and it is important that we look at how New South Wales law fits in, but the Code States have, by statute, an extended principle.

MR GREEN: Well, there was some discussion, of course, as to whether that has happened or not. Sir Samuel Griffith seems to have taken the view that sections 16 and 17 mirrored or reproduced the common law. There is at least an argument, despite some of the dicta in the Queensland, Western Australian and the Tasmanian decision referred to, as to whether or not the Codes do represent an extension of the common law or reproduce it.

KIRBY J: Well, that may be so. Non-Code lawyers have to be pretty careful in intruding into the Code States. The Code State lawyers get very, very possessive of their Codes and maybe we do better to say anything about Codes when we have the advantage of Code lawyers who are arguing how the Code is supposed to operate.

MR GREEN: Yes. It is at least interesting from this point of view, in our submission, your Honour, that there have been efforts - they recognise that similar problems arose in the application of principles, even with the assistance of the Codes in, for instance, Queensland and Western Australia, and the cases are instructive, in our submission, as to how those difficulties were handled and in particular what tests were used. For instance, I was trying to reproduce them before. Some of the terms were, do the acts and omissions in question disclose a unity of transaction or a unity of time and place, the focal point, the central theme and the very commonsense, if I might suggest with respect, approach of Justice Pidgeon in Phillips v Carbone at 175 to 176 where he suggests that the appropriate test is looking at what was the thing done. He says the question to be asked is, "What did the accused do and has he been punished for it?"

GUMMOW J: Now, Justice Kirby mentioned to you Williams v Spautz [1992] HCA 34; 174 CLR 509 and at 521 in the judgment of four members of the Court, including Justice McHugh, there is a statement that in Connelly:

a majority of the House of Lords considered that a superior court has power to prevent an abuse of process,

MR GREEN: Yes.

GUMMOW J: Well, that is it, is it not? Why do we have to worry about the ruminations of other courts about what it means, about what Connelly means? In Australia it is clear. It has been said by four members of this Court. Why do we get taken to all these inferior court ruminations about the proper meaning of Connelly?

MR GREEN: I was not aware of that particular case, your Honour.

McHUGH J: I had said much the same thing, relying on Connelly and Herron v McGregor, back in New South Wales back in 1986.

KIRBY J: A very important case that. It let unloose a great torrent of litigation of stays.

MR GREEN: That is certainly one amongst many that we missed. For the rest, we rely on our written submissions, your Honours. Unless there is something further then I will not seek to go on.

KIRBY J: Yes. What is the result though? We have to think of orders down the track.

MR GREEN: The result, we would suggest, is that the - - -

KIRBY J: It would be different, would it not? One is the plea in bar, you should have had that, and that has to go back to trial, does it not? Or can that be done by the Court of Appeal on resentencing?

MR GREEN: The Court of Appeal could resentence - - -

KIRBY J: The other is, what does one do if the proper remedy, in this case, was the exercise of judicial discretion to stay?

MR GREEN: Our submission is that this Court should find error and it should quash one of the - this is one way, we would submit, of handling it - convictions, and then remit the matter to the Court of Criminal Appeal for appropriate sentencing.

KIRBY J: How do we decide that? Assume the error is the failure to apply the judicial discretion to stay. Now, that requires a balancing of a number of elements as explained in Herron v McGregor and Jago, and the other cases. That has never been done. How can we possibly do that? That would have to go back to somebody to do it. It would have to go back to the Court of Criminal Appeal, would it not, to provide such relief as is appropriate in the light of that order? I am asking you. You are the one who is asking relief from us. All this talk is all designed to lead to an order. So we have to rather focus our mind on that.

MR GREEN: In my mind - I have always had this order in mind, that the Court quash one of the convictions and remit the matter then.

McHUGH J: Not one. That is not what you had in mind. You have had in mind that they quash section 33, that is what your notice of appeal says.

MR GREEN: That is so. I have already retreated from that particular one, that the court, perhaps, given what I have read of the exchanges between counsel and the judge in the sentencing procedures, he was more concerned about that element of aggravation, as I perceive it, than the other. Alternatively, the Court could quash both and remit the matter to the Court of Criminal Appeal for appropriate prosecution and plea and punishment.

KIRBY J: This does not affect the liberty of your client, does it, because he is serving the sexual offence sentence? He is going to be there for a while, whilst this is sorted out, if he is entitled to get it sorted out.

MR GREEN: Even once this is sorted out he will be there for some time.

KIRBY J: But we have to do it according to a principle. I just do not quite know what your submission is as to the correct principle that is to be applied here.

MR GREEN: My initial submission is that this Court ought to quash section 110.

KIRBY J: So you are seeking leave to amend your notice of appeal now?

MR GREEN: Yes, conviction, and then, remit the matter to the Court of Criminal Appeal for sentence.

KIRBY J: Would you explain to me why you have had this Damascus Road conversion, or should I say, Canberra Road conversion?

MR GREEN: I did not quite see it as Damascus-like, I must confess, but the reason why is that I read again the exchanges, the transcript of the sentence proceedings, and there the prosecutor is quite concerned, of course, to have framed an indictment which picks up the criminality of both section 110 and section 33 charges. Then the discussion between counsel and their Honours relating to the comparative gravity of the two offences he is concerned with, and as I perceive it, more concerned with the element of aggravated punishment or, rather, intentional infliction. The other reason why I had the change of mind was because it occurred to me, unlike my earlier opinion, that if he was found guilty and convicted of the section 33, all of the other elements in relation to the section 110 charge could be taken properly into account. Whereas there is a good argument on Di Simoni that that cannot be done if the position is reversed, and he pleads only to section 110.

McHUGH J: But he has pleaded to both. The original application was for a stay of the indictment on the ground that it was a precedent of abuse of process.

MR GREEN: Yes.

McHUGH J: And according to Justice Newman's judgment that was also the basis of the appeal to the Court of Criminal Appeal. If we were with you all the way, are you asking that we allow the appeal, and make an order staying the indictment, or do you have some other order in mind?

MR GREEN: The one I had in mind was that the Court allow the appeal and quash now, in my amended ground, the section 110 conviction, and then remit the matter to the Court of Criminal Appeal for judgment and sentence.

McHUGH J: I am not sure we could be quashing the conviction. The remedy sought is a stay.

MR GREEN: We have certainly appealed on the basis of a failure to stay.

KIRBY J: I suppose that if you think of it in terms of concepts, you have sought a stay of the indictment. You never had that discretion, as you say, properly exercised, and the matter has to go back to a trial judge to properly exercise that discretion.

McHUGH J: That is what I thought you had in mind.

MR GREEN: That is certainly another - we would see it as another remedy.

GUMMOW J: What were you seeking in the Court of Criminal Appeal? You are seeking that we do what the Court of Criminal Appeal should have done.

KIRBY J: The notice of appeal is not there, unfortunately.

McHUGH J: Page 51 of Justice Newman's judgment commences with:

This is an appeal against a refusal by the trial judge to grant a stay in respect of an indictment and, in addition, the appellant seeks leave to appeal against the severity of the sentence - - -

MR GREEN: The severity of the sentence, yes.

KIRBY J: Do you have the notice of appeal to the Court of Criminal Appeal in your papers, because it is not in the appeal papers?

MR GREEN: No.

GUMMOW J: We really should have it.

MR GREEN: No, I am sorry we do not, your Honours.

KIRBY J: We will just have to take it that it is accurately set out in the opening of Justice Newman's reasons.

MR GREEN: Yes.

McHUGH J: The notice of appeal is at 49 and 50.

HAYNE J: Somewhat artlessly drawn.

MR GREEN: Is it there?

McHUGH J: Yes, 49 and 50.

MR GREEN: I am sorry, it is there. That is the applicant's notice of appeal.

McHUGH J: I know it is but - - -

KIRBY J: It is talking about remorse and things like that. I did not take that to be the formal notice of appeal.

McHUGH J: Let me get this clear from you: are you seeking a stay of the whole indictment or only a stay of counts 9 and 10?

MR GREEN: If the matter is remitted to the primary judge, or a primary judge for sentence, he would have to have the whole indictment, so we would have to seek that the whole indictment be stayed so that he considered the whole matter afresh, otherwise it would be, one would think, a rather artificial process to divide into just counts 9 and 10 and assess their criminality in that rather rarefied light.

McHUGH J: Why, if your argument was accepted in its entirety, why would it not be proper to allow the appeal, order that counts 9 and 10 of the present indictment be stayed and remit the matter back to the trial judge to deal with the matter afresh; the Crown then, depending upon the terms of the judgment, having an opportunity to include either abandoning count 10 and asking for the stay to be lifted - - -

MR GREEN: So long as that is done in terms which did not prevent the primary judge considering the whole of the offences again and a new....., we would have no problem with that at all, no. Thank you.

CALLINAN J: A different application of the totality principle, if you have one fewer or two fewer offences.

MR GREEN: Yes, yes, of course.

KIRBY J: But presumably the judge would sentence or deal with those offences and deal with what should be done on the indictment and then deal with the remaining count in the light of the (a) the sentence for the whole that has been performed by the original trial judge, and (b) what was said by this Court in relation to the purpose of acting in this way.

MR GREEN: Yes.

McHUGH J: It may be, if your argument was accepted, it would be proper to make a stay with a condition so that counts 9 and 10 would be stayed subject to the Crown electing to proceed on one or the other of those counts.

MR GREEN: Yes.

McHUGH J: Thank you, Mr Green. Yes, Mr Hosking.

MR HOSKING: May it please your Honours. As your Honours will have seen, I think, from our written submissions, that apart from the discretionary aspect of the matter which we have dealt with right at the end of our submissions, our submissions fall into two parts. We say that if your Honours agree with part (1) of our submissions, then aside from the discretionary aspect with which we deal last, that is sufficient by itself to dispose of the present appeal but because my learned friend and I gathered, when your Honours granted special leave in this case, that there was a wider question to be determined, we have gone on and included what we call part (2) of our submissions to suggest what, in our view, what we submit is a workable test that will work in any given instance.

McHUGH J: When you are talking about this question of discretion, is what you are saying that you perceived that the proceedings might be stayed first, on the ground of vexation but secondly, because in some way it brings the administration of justice into disrepute so that even if the appellant failed on the vexation point nevertheless he would have a fall-back position.

MR HOSKING: We say, your Honour, that one could argue that position.

McHUGH J: Yes.

MR HOSKING: We say, of course, that it is not correct but we say it is at least arguable.

McHUGH J: You rely on what Justice Mason said. It was Justice Mason in Rogers?

MR HOSKING: Yes, your Honour. Of the question of abuse of process having, as his Honour put it, two aspects. Firstly, the aspect of vexation, oppression and unfairness to the other party to the litigation and secondly, the fact that the matter complained of will bring the administration of justice into disrepute. So that your Honours are clear about our position may we put to your Honours early on, now, in fact, the legal position as we see it and, in that respect, I do not think that we differ or differ materially from the position that our learned friends have taken.

At the risk of simplifying or oversimplifying the exchange between your Honour Justice Kirby and my learned friend, as we see it, there are, in reality, relevantly to this aspect of double jeopardy three situations. There are other aspects of double jeopardy as your Honour Justice Kirby pointed out in Cooke v Purcell but relevantly to this type of matter, the position as it appears to us is as follows.

Firstly, it seems to us that there is - there is no question about it - that the strictest position, the commencing position is the original pleas of autrefois acquit and convict which were always pleas in bar and, as your Honours know, whilst those concepts in the way that they have been used in the cases have waxed and waned, originally they were pleas very strictly construed and to successfully plead autrefois convict or acquit one had to speak about, one had to plead a previous acquittal or a previous conviction for an identical offence. I am telling your Honours things that are trite. That was the original position.

There seems to have been, in our submission, an intermediate position of which we say Connelly is an example; a division between the approaches of their lordships in Connelly is an example where some of their Lordships, or at least one of them, said that the pleas of autrefois ought be left as strict pleas in the way that I have described them and then there was this wider aspect of double jeopardy which went beyond the traditional pleas of autrefois or, alternatively, whether autrefois was really a more expansive concept that it was considered to be in much older authorities.

We submit that authorities of late - and I think the New South Wales case of Dodd is one example; the judgment of Justice Dawson in Saraswati is another - shows that the position has come back to, firstly, there are these traditional pleas of autrefois in respect of which the offences must be identical. The second position is where the offences are not identical but there is, nevertheless, what courts have called "double jeopardy" because, depending on how one wishes to put it, the offences are substantially the same - Li Wan Quai v Christie, for example - or, alternatively, our learned friend's South Australian position and other cases, because the gist or gravamen of the offences is the same.

Dealing with those first two positions, if that is a correct analysis, we submit that as a matter of law those two situations, autrefois and that wider aspect of double jeopardy in that sense, are pleas in bar or, if they are not pleas in bar, then they ought to be pleas in bar, as of right. That is because, we submit, dealing with the second of those two positions, an accused person ought to be able to know with some certainty in any case whether he is entitled before his trial ever commences to raise a plea in bar before whatever judicial tribunal he or she appears.

There is, as it appears to us, a third position broader still, which is often described as double jeopardy, but that third aspect of double jeopardy does not involve a plea in bar as of right; it involves a discretionary remedy and is based upon different considerations, the kind of considerations that Chief Justice Mason described in Rogers, the short passage that I just read to your Honours.

KIRBY J: You did not read it. Would you give us the citation.

MR HOSKING: I am sorry, your Honours.

KIRBY J: I am not asking you to read it. If you give us the citation that would be - - -

MR HOSKING: Yes, your Honours, that passage is to be found in 181 CLR 251 and it appears at page 256.

KIRBY J: There would not seem to be a strict dichotomy between the two categories that his Honour referred to; each would reinforce the other.

MR HOSKING: Yes.

KIRBY J: Community confidence is sort of undermined by a sense of vexation and unfairness and oppression to a particular accused, and vice versa.

MR HOSKING: I do not make a contrary submission. Yes, that, with respect, is undoubtedly correct. As it appears to us, the present problem, apart from its discretionary aspect based on broader principles, falls within the second of the categories to which we have just referred.

GUMMOW J: Within that second category there is a division of opinion in the South Australian case.

MR HOSKING: Yes, there is, your Honour.

GUMMOW J: You do not accept the South Australian case?

MR HOSKING: With respect to their Honours in South Australia, we do not. We contend that in the common law jurisdictions, not only in Australia, but in the United Kingdom or in England, and in the United States, which is not strictly common law, of course, because there is the constitutional amendment the Americans have, but that in the common law jurisdictions - - -

GUMMOW J: They always thought they were only writing down the common law.

MR HOSKING: They do say that, your Honour, I accept that. I accept that they say that their position is an extension of, and is rooted in, the common law. But we submit that, with respect, those South Australian cases are out of step with the common law relevantly everywhere else, if that is not too broad a statement, for the reasons that we set out in some detail, not exhaustive detail, in our written submissions, and having regard to the position of - - -

KIRBY J: That may be true, but Chief Justice Bray was a great judge of the common law. We have to think carefully before we say he was out of step with the common law.

MR HOSKING: I do not make that submission lightly, your Honour, but it is our submission that on a careful analysis of many authorities, that unfortunately one reaches that position. The former Chief Justice in South Australia seems to reach that position, if I may say so with respect to him, kind of incrementally. If your Honours look at - - -

McHUGH J: I do not think he really said it in O'Loughlin, but when he got to Hallion he seemed to have extended his view. I thought his view in O'Loughlin was much narrower than that of Justice Wells.

MR HOSKING: That appears to be so, your Honour.

KIRBY J: It is possible that he was taking the low road. He was taking the road of extending the second of the categories of the plea in bar, whereas the great stream of the common law was moving on the high road to extend, through Connelly and through the cases since, the judicial discretion to prevent a serious case of unfairness. Maybe he took the wrong turning, but his direction was correct. That may be, sort of looking at it historically, what has happened in South Australia.

MR HOSKING: Yes, I certainly do not mean to be overcritical. It is a very difficult area, and it has had a somewhat troubled history. I think perhaps, at least in some cases, because judges have not always used the expressions "autrefois", "double jeopardy" and related expressions uniformly, I think that is one of the reasons that problems have become evident in this area.

McHUGH J: It may be that the Chief Justice was not really seeking to extend the law. He just expressed himself a little unclearly because he did rely on Wemyss in Hallion's Case.

MR HOSKING: Yes. Your Honour, yes, I must say I was thinking of that just a moment ago. It may be that it was like this very Court in Reg v Hoar, which my learned friend relies upon, which was, I would not say a piece of loose expression, but the expression used in Hoar - perhaps I should go to it. This is an area of law in which judges are sometimes given to using convenient expressions, but the convenient expressions do not always pick up all the shades of meaning. What their Honours said, Chief Justice Gibbs, Justices Mason, Aickin and Brennan, in Reg v Hoar 148 CLR 32 was relevantly this. Their Honours said at the top of page 38 in the first full paragraph:

That suggests that the Crown's advisers have overlooked a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act (see Connolly v Meagher). It has long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty.

Our submission is that their Honours did not mean that literally, that that was a shorthand kind of expression in a case in which the question that your Honours are now considering never even arose, so that looseness of expression or convenient expressions which do not convey the full range of meaning are sometimes used and can sometimes on their face be misleading in this area.

KIRBY J: Has the history of autrefois convict and acquit been examined in this Court to your knowledge? Did Justice Windeyer ever look at it or not?

MR HOSKING: I do not believe so, your Honours. May I check my notes quickly?

KIRBY J: You can do that later perhaps.

MR HOSKING: All right, your Honour. I do not recall such a case, no. Your Honours, one matter that we do place some reliance on, even though I am still now in our proposition (1) but it will become important for our proposition (2) is the observation made by Lord Devlin in Connelly v Director of Public Prosecutions (1964) AC 1254. We have quoted the particular words at the foot of page 3 of our submissions. This is Lord Devlin at page 1339 of Connelly, quoted, as I say, at the foot of our page 3. His Lordship made this observation which we say is particularly important for a proper understanding of this area:

The word "offence" embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine -

and his Lordship was speaking in the context of autrefois acquit -

to apply it must be the same offence both in fact and in law.

That is a question, your Honours, to which we will return in relation to part (2) shortly, but I wish to make mention of it at this stage because of what we say is the central importance of that concept to this area.

We have, as your Honours see, set out, commencing on page 4 of our submission, the common law position expressed in a number of New South Wales cases and one Victorian authority, the one my learned friend referred to, of R v Weeding [1959] VicRp 50; (1959) VR 298. One of the leading New South Wales authorities is the decision given by Chief Justice Gleeson in Environmental Protection Authority (NSW) v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502, where his Honour Chief Justice Gleeson said- - -

McHUGH J: What page, Mr Hosking?

MR HOSKING: This is at page 507, your Honour. At page 507 his Honour was considering the proposition that a person cannot be twice put in jeopardy for the same conduct His Honour said:

Both the proposition that a person cannot be punished twice of the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well-established.

And his Honour referred to the case of Dodd.

R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation.

Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.

And at page 508 his Honour said:

Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another.

Your Honours, may I now go briefly to the position, as it seems to us, in the United States.

GUMMOW J: For what proposition does this end up as unequivocal support?

MR HOSKING: The Dodd - - -

GUMMOW J: The judgment is saying it is all very difficult and there are various views. What is the end result of the judgment?

KIRBY J: Where are you leading us?

GUMMOW J: What do you get out of this judgment? We all know it is difficult now.

MR HOSKING: Yes. Your Honours, the purpose of that quotation was to make the point that to provide a test in this area, to speak about the same facts is not a test at all, it simply invites, as his Honour said - - -

GUMMOW J: What is meant by the notion of "particular feature of the facts is immaterial"?

MR HOSKING: It invites a request for a more precise definition of the relevant fact. That is the point that we sought to make.

GUMMOW J: There is philosophical problem about the level at which one extracts the right level of meaning in all these cases, and it has never really - it is a philosophical problem, never really grappled with in any of these cases, it seems to me.

MR HOSKING: That is true, your Honour, yes, that is true. That is the reason for our part (2).

GUMMOW J: Is there any legal philosopher who has grappled with these questions? That is what it is.

MR HOSKING: I do not think so, no.

KIRBY J: What time have judges got to deal with them? We are too busy.

MR HOSKING: I am sorry, your Honour?

KIRBY J: Judges do not have the time to - - -

GUMMOW J: We just get these cards shuffled in front of us but they do not take you anywhere. They do not take me anywhere, anyway.

KIRBY J: You have given us a pretty good conceptual framework, if it is exactly the same finish, autrefois acquit or convict.

MR HOSKING: Yes.

KIRBY J: If it is not exactly the same but it is the gist or gravamen of the facts are so similar, then you may have a plea in bar, depending on how close the two get. If that is not enough, you have got the third possibility that if it is different and it does not come within a plea but it still strikes a chord as unfair or offensive to the public or to the accused, then the judge has a reserve power to provide relief.

MR HOSKING: Yes.

KIRBY J: I mean, that is not a bad framework.

MR HOSKING: If your Honour pleases.

KIRBY J: I mean, I only speak for myself, but that seems quite a neat - and, of course, there will still always be the debates. The first may be very precise but the second and the third will give rise to differences of view as to whether the facts are sufficiently the gist and gravamen or they are not, or whether the judge is offended or is not.

MR HOSKING: We are suggesting, your Honours, a workable test, as adopted in the United States, for the second. The third will always be imprecise because of the very nature of the subject matter; it will never lend itself to any precise definition; it is a discretionary matter.

GUMMOW J: There must be some consideration of the double jeopardy submission in the United States at some thoughtful level.

MR HOSKING: I am sorry, your Honour, I just did not quite hear that last bit.

GUMMOW J: There must be some consideration in the United States on their double jeopardy jurisprudence at some thoughtful level which can help us. If you say something, as the cases do, to talk about gist and gravamen, it does not say anything to me.

MR HOSKING: Well, with respect, I agree, your Honour. It is not very helpful.

McHUGH J: Have you looked at any of the academic writing on double jeopardy in the United States?

MR HOSKING: We have not looked at academic writing in the United States, your Honour - - -

KIRBY J: We have Justice Scalia's judgment which is a sort of academic write.

GUMMOW J: No doubt there has been response to that judgment, I would have thought.

MR HOSKING: Well, I must confess we have not looked at academic writings, your Honour. We have looked at academic writings in - - -

McHUGH J: There is a book on double jeopardy written in the United States, is there not?

MR HOSKING: There is a book on double jeopardy written in Canada, your Honour, by Professor Friedland. We have looked at that and, indeed, we have copies, I think, of the relevant chapter which is chapter 5 of that book, if it would assist your Honours. We have brought multiple copies of it. Interestingly enough - - -

GUMMOW J: What year is that?

MR HOSKING: That is 1969, your Honour. Interestingly enough, Professor Friedland says that it is futile to seek a single test. Professor Friedland seemed to believe it is impossible. As we say, the Americans do not seem to have found it impossible, but that was in 1969.

McHUGH J: So what does that leave you with, the "I don't like the look of it" test?

HAYNE J: Justice Douglas on pornography.

MR HOSKING: Well, yes, "I can't define pornography but I know it when I see it". We say, your Honour, that is not a very satisfactory position for this area.

GUMMOW J: We are talking about criminal liabilities. It is left in this nebulous area.

MR HOSKING: Well, we suggest it may be an opportunity for it to be clarified once and for all, your Honour.

GUMMOW J: That is why one is seeking assistance in that task.

MR HOSKING: May we hand up to your Honours a copy of the relevant chapter.

McHUGH J: Well, Blockburger and Li Wan Quai seem to lay down an almost identical test, do they not?

MR HOSKING: We say so, your Honour. They are differently expressed, as we have pointed out, but in reality it comes down your Honour, we say, to this, that in reality, unless one is to have a test that is merely impressionistic, which we say is no test at all, it can be done in no other way than to have what we call an elemental test, what the Americans call an elemental test, because that is the only way that one can ever get any certainty into this area.

KIRBY J: Can I tell you my difficulty with that, and it may be that the solution to my difficulty is at the third stage, but the difficulty is that it would be very, very rare, if ever, that the Crown would put a person up on exactly the same facts and exactly the same offence.

MR HOSKING: That is true, your Honour, I accept that.

KIRBY J: So if you are confining autrefois acquit or convict to that category, it really will not have any work to do. Therefore, you get into category two, which is very important because it is at the stage of the plea and before the trial is conducted and, therefore, we are not having exactly the same offence, exactly the same facts, but it is the same basic framework of facts that make it truly offensive to put a person on trial for something that is the same as they have either previously been tried with or they are being tried with now. And that is what we are searching for: a point at the plea stage which will relieve the accused and the public and the criminal trial process of the offence to the sense of fairness that is involved in putting a person twice on their trial for what is, essentially, the same thing. This is reflected in international human rights principles. I mean, the nemo bis vexari is an international principle. Therefore, that is what the common law is striving to find, something which will prevent that offence to the sense of justice.

MR HOSKING: As your Honours know, some very powerful minds have looked at this problem. From our humble position here at the Bar table, on this side of the Bar table, all we can do is offer to your Honours what appears to us to be a workable solution as they have set it out in the United States which, at the risk of repetition, we say, is only what this Court said in reality in other language at the beginning of this century.

McHUGH J: Have the United States courts dealt with the federalism problem because we cannot overlook the federalism problem here. Take a case like Ridgeway.

MR HOSKING: Yes, I understand the point your Honour makes.

McHUGH J: For example, the Commonwealth says, "We want to prosecute this man" and did, and this Court held it was stayed but, as my understanding is, the South Australian authorities then went on and prosecuted him under what were substantially the same facts. The only difference was they did not have to prove it was imported.

MR HOSKING: Yes, your Honour, I appreciate that that dichotomy presents very serious problems in this area, in an area that is already problematic, and I am sorry that I am not able to say to your Honours, Blockburger fixes all that too. I do not know whether it does or it does not.

McHUGH J: I have got a recollection of reading a Seventh Circuit judgment in the United States which seemed to suggest it did not, that this doctrine just did not apply when you have got a federal offence and a State offence.

MR HOSKING: In all events, your Honour, whether - - -

KIRBY J: One of the examples given for the separate offences is possession of a prohibited drug and supply.

MR HOSKING: Yes.

KIRBY J: It is said that they overlap but I could well envisage that there would be a different offence in just having a drug for your own sake and supplying it to another person. It seems to me that it does not offend my sense of justice that a person should be prosecuted in the same indictment for each of those offences.

MR HOSKING: Interesting, your Honour. Of course, as your Honour knows, that was the situation that the New South Wales Court of Criminal Appeal dealt with in Dodd and our contention is that, elementally, they are identical. Our learned friends apparently contend otherwise and say that there may be another element in there but when one looks at them closely, the only difference between the two is an evidentiary deeming provision that places an onus on the accused person to demonstrate that it was not in his or her possession for supply but, as we understand Dodd, it is because they are elementally identical - - -

KIRBY J: This is elements of the offence?

MR HOSKING: Elements of the offence.

KIRBY J: Can I just put my finger on exactly what it is I do not like about that test and it is that if you are thinking in terms of what offends you, it is the unfairness of having a person tried twice for doing the same thing. This is, I suppose, what Justice Pidgeon said, because people do not always know what are our peculiar legal categories, what is the special provision for deeming an offence of supply, to have in possession with a deemed supply. They are legal categories but the offence is putting a person up for trial on the same facts in respect of the same antisocial conduct. That is what we are trying to avoid and to talk of it in terms of the elements of an offence that is simply a legal construct that Parliaments can define in various ways. Your answer may be the only way you can look after that problem is in the discretionary stage.

MR HOSKING: With respect, that was to be my answer, your Honour. That is all I can suggest, that one then must move into that third stage which is a discretionary aspect.

KIRBY J: Does that apply at the point where the trial commences, or is that stay only available on the authorities at the point of conviction or punishment.

MR HOSKING: As we understand it, it is a stay available at the commencement of the trial.

KIRBY J: If that were used as Lord Devlin suggested it should be used, that would not be such a bad result because a judge could say, "I think this is really, at my understanding of the facts at the moment, this is really just putting this man on trial for what is essentially the same facts, and you should have to elect or I am going to stay". What is wrong with that?

MR HOSKING: I do not think there is anything wrong with it, your Honour, if one has to get to that point. But, we submit that one can go through these other steps first. One can at least go through step two first, which, in many cases, will obviate the need for any such further inquiry. This case, we say, is a practical example that once you have a case like this that has two disparate elements - one an element of intent to cause grievous bodily harm, and the actual breaking and entering of somebody's premises, that in many cases that will be sufficient. Once it is realised that they are different offences, that not many people will then contend, "Look, it is just unfair to put this man up for trial on these two charges in the one proceedings", because the response is, "Well, what is unfair about it? They are different offences". However you describe them, gist or gravamen, or in substance the same, or however one approaches it.

KIRBY J: I think that is an answer a lawyer might give, but a citizen might think he went in, he broke and enter, he knew he was alone, he bashed him, then he took some things and he left. The facts are all the same.

HAYNE J: What does it matter that given that, what is the significance to be attached to the fact that the judge imposes precisely the same sentence on both charges and makes the sentences concurrent - that is, treats the criminality involved in each of the offences identically.

MR HOSKING: In this particular case, your Honour, or as a general - - -

HAYNE J: No; in this particular case.

MR HOSKING: That may mean - I do not make any concession about that - but that may mean that his Honour the presiding Judge, Justice McHugh, has the correct impression when your Honour says that it appears to your Honour that there may have been some element of double punishment. I do not make any concession about that. But, that could be so. I can see that on a reading of it, that could be so.

KIRBY J: That on the foundation that one offence is more serious than the other and yet it has been treated the same by the trial judge.

MR HOSKING: Yes.

McHUGH J: Without some express reference, the very fact that he has the same sentence on both counts is sufficient, is it not, to indicate that he has been punished twice for the common element?

MR HOSKING: I do not want to fox with your Honour. It may be. I concede that there is a view for that proposition. I do not concede it.

HAYNE J: You put nothing to the contrary?

MR HOSKING: I put nothing to the contrary. It is an impressionistic matter. Well, I am sorry. I put nothing to the contrary of that particular proposition, but I do put something in relation to the next stage as to whether there has been any actual injustice caused.

McHUGH J: Yes, that is a different proposition.

MR HOSKING: In relation to that, we submit that Justice Newman looked at that in the Court of Criminal Appeal and said that there was not any. I will just try and find the particular page, your Honours.

HAYNE J: Page 61, line 19, is it not?

MR HOSKING: Yes, I am indebted to your Honour. Yes, that is the passage I had in mind. I do not think I can usefully say any more about that aspect of it, your Honours. Your Honours, I do not wish to take up unnecessary time with this exchange. I think what we have said thus far, apart from the discretionary aspect, broadly covers the submissions that we wish to make. May I say that we have done our own experimentation as best we can with what we call the Li Wan Quai v Christie and Blockburger and Dixon line and it seems to us - we are unable to give your Honours a cast iron guarantee about it, so to speak, because there may be instances unknown to us where it does not work, but the best we can do is, having experimented with it, it appears to us that in that second area that test applied does provide an answer in any given case, leaving a discretionary aspect remaining.

KIRBY J: But it is an answer favourable to the Crown and there will always be some little nuance, a difference in the statutory definition of a criminal offence and there will always, therefore, be a foundation for separately putting a person up on two trials though the substantive pith and gravamen of the facts are the same and, therefore, you really consign all injustice elements to a burdensome task on a judge to, in effect, stop a prosecution which the prosecutor for the Crown has decided to take. That is a rather embarrassing thing for a judge to be required to do and it leads to a lot of debate at trial, it leads to appeal grounds and it would be much better, and it may be impossible, if we could formulate a test that the offender or the accused and the prosecutor knew was the test.

MR HOSKING: Your Honour, my response is this, that if there was a test that could be applied with certainty in the second stage, it may be that prosecutors acting properly, as your Honours would assume that they would in the overwhelming majority of cases, simply would not put somebody up on two charges that were in reality the same charge and so that, whilst the work may be burdensome, as your Honour has suggested, that it would not happen in very many cases.

KIRBY J: Well, take this case. Why is it not burdensome to put this accused up on the one set sequence of facts? He goes in and he bashes, he takes, he leaves and put him up on two offences. Now, why is that not, conceding that there is a nuance of difference in the offence?

MR HOSKING: We say, your Honour, it is a lot more, with respect, than a nuance; we say this could have happened anywhere. It could have happened in the park, it could have happened in the street, but this happened- - -

KIRBY J: All right, well prosecute him for break enter with intent to cause grievous bodily harm.

MR HOSKING: May I just point this out to your Honours, that my learned friend- - -

McHUGH J: That is the problem, is it not, that there is no such offence.

MR HOSKING: There is no such offence.

McHUGH J: And the problem, as it seems to me, is that the criminal conduct of people does not fit neatly into various offences of the criminal law and it is sometimes necessary, if somebody is to be prosecuted for the full extent of their criminality, that more than one offence has to be applied to that conduct, and the problem is that when you do that you will from time to time get elements which will overlap in the respective offences. So if you apply the Blockburger test or the Li Wan Quai test you can at least go to trial, but leave it to the judge to ensure that there is no double punishment.

MR HOSKING: Yes, your Honour, with respect, yes.

KIRBY J: It would be very rare that a judge would provide relief at the beginning of the trial; most judges would either, (a) feel diffident or that it was inappropriate to do so because it, in effect, involves an appeal against the prosecutor's decision or they would feel they just do not know enough about the facts of the case; we will have to see how it all falls out. So you have got a person really being vexed; this is the problem of leaving it to the point of punishment.

MR HOSKING: I accept that as a problem, your Honour, of course, if the situation be, in any particular case, that the judge is not fully seized of the facts or the nuances of the case at the very beginning. The stay application can be made later if necessary in the trial; it is not necessary, as your Honour knows, for it to be made at the very first instant. There may be such cases, but I suggest that they will be relatively unusual, and, your Honour, certainly in New South Wales, I think I am correct in saying that those who appear for accused persons in New South Wales are not shy about applying for stays, in a proper case; well, sometimes in proper cases.

KIRBY J: You could have just put a full stop after "not shy".

MR HOSKING: I wish I had, your Honour, yes. Your Honours, just so that there is no doubt about it, the point that there is no offence of break and enter simpliciter can be seen - I do not want to take your Honours to it in detail now, but if your Honours go to that part of the New South Wales Crimes Act, as commences with section 105A, the heading before that part - it is not a formal part of the Crimes Act, it is not Part 4 or Part 5 but the heading is "Sacrilege and Housebreaking", and there is a whole series of sections about it, firstly dealing with breaking into places of Divine worship and therein committing offences, and then, commencing at - I think this is correct - section 109, with "Entering with intent" for example, section 109 is a good example:

(1) Whosoever:

enters the dwelling-house of another, with intent to commit felony therein, or,

being in such dwelling-house commits any felony therein,

and in either case breaks out of the said dwelling-house shall be liable to penal servitude -

and there are aggravated forms of that, and various others. There is no offence of breaking and entering simpliciter. Unless there is anything else that we can assist your Honours with, they are the respondent's submissions.

KIRBY J: What about the orders in the event that the Court takes a view at different stages? Assume, for example, that the Court took the view that the correct thing here was at the point, at least at the point before punishment, for the judge to say, "Well, the substance of this is the same, therefore, I will provide a stay." What is the correct order, then? And then, what is the correct order if the Court takes the view that the judge ought to have made it plain that he was not punishing twice for the same facts of break, enter?

MR HOSKING: To deal with the first of your Honour's questions, it certainly should not be that the whole indictment is stayed, because otherwise the man will be entitled to walk out of gaol, I would have thought.

KIRBY J: Only on these offences. He is already sentenced in relation to sexual offence.

MR HOSKING: But in relation to this indictment they are all, as we understand it - my friend will correct me if I am wrong - under this same indictment.

McHUGH J: Yes, they are all on the same indictment.

MR HOSKING: Yes. So that what your Honour, we respectfully submit, would do, would be to stay count 10, which appears on page 6 of the appeal book.

KIRBY J: Why select that one?

MR HOSKING: Because we would respectfully agree with your Honour Justice McHugh that the more serious of them is the count charged as count 9 under section 33, the grievous bodily harm with intent to commit grievous bodily harm. It appears to us that is a more heinous offence than the other.

McHUGH J: I do not know about that. It depends on the circumstances, and if you are just going to look at it in isolation I can think of plenty of cases where a section 110 offence would be much more serious than a section 33 offence. Somebody may intend to commit grievous bodily harm in the sense that they are involved in a fight, for example.

MR HOSKING: I accept that, with respect, your Honour, but as the representatives of the Crown in this case, if we are entitled to elect, if we have that entitlement, we would elect, if there is to be any form of stay, for a stay on count 10. I have unwittingly misled your Honours. I see that Justice Newman says at page 51 of the appeal book on the first page of his Honour's judgment in the Court of Criminal Appeal, line 40.

The offences with which the appellant was charged were the subject of two indictments presented before his Honour. The first.....consisting of ten counts, the second contained one count.

HAYNE J: The one count was the graft and assault, was it not?

MR HOSKING: I see. Your Honours, in terms of adjustment of any punishment, if there is to be any adjustment, we would submit that the appropriate thing would be to send the matter back to the Court of Criminal Appeal.

KIRBY J: But what if there is to be a stay, or if that issue has to be considered, because it is suggested that it was not considered, or at least considered properly?

MR HOSKING: If your Honours stayed count 10, for example, that would mean, on its face, that there would need to be some adjustment, or consideration of adjustment to the sentence because they were concurrent, and that is why we make the submission that your Honours would send it back to the Court of Criminal Appeal for that purpose, to sentence on 9 counts and not 10.

GUMMOW J: But to the Court of Criminal Appeal? There was some suggestion to the trial judge.

MR HOSKING: It appears to us, your Honour, that as the matter has come from the Court of Criminal Appeal, that it really ought to go back there, in that event.

GUMMOW J: Yes, I would have thought so.

KIRBY J: They might want to send it somewhere - back to the trial judge.

MR HOSKING: They may do, your Honour.

KIRBY J: It is unlikely.

HAYNE J: Again, if I can just follow all the permutations and combinations: if of the view that no stay should have been ordered but of the view that there was an element of double punishment, what do you say we should do?

MR HOSKING: We submit that your Honours would sent it back to the Court of Criminal Appeal with that observation.

KIRBY J: There you would not quash, you would simply - rather you would quash the sentence but you would not provide a stay on the indictment.

MR HOSKING: No, that is right, your Honour.

KIRBY J: You would simply quash the sentence.

MR HOSKING: Quash the sentence.

McHUGH J: I am not sure that you would quash the sentence, would you?

MR HOSKING: Well, I think that there were two sentences, concurrent, albeit, but two sentences.

KIRBY J: You would have to do that in order that it should be reconsidered in the light of the correct principle of manifestly avoiding any reliance on the same facts in respect of the different counts in the indictment and punishing twice in respect of those facts.

KIRBY J: The reason I said we may not have to quash it is simply that you are allowing the appeal sending the matter back to the Court of Criminal Appeal to hear the appeal. The Court of Criminal Appeal would then deal with it itself.

MR HOSKING: As to sentence only.

KIRBY J: As to sentence only.

MR HOSKING: Yes. May it please your Honours.

McHUGH J: Thank you , Mr Hosking. Mr Green.

MR GREEN: Your Honours, if I might, a quick word about the US situation. Our submission there is that while that law and cases might be instructive

, the problem is that, of course, their protection, the US protection against double jeopardy is firmly routed in their Constitution, in the Fifth Amendment.

It refers to double jeopardy attaching to offences, the same offences, not facts or acts or omissions and all the law that has followed, the common law that is referred to United States v Dixon, for instance, is their common law, their cases, their law interpreting the application of that statute.

KIRBY J: The Fifth Amendment uses the word "offence", does it?

MR GREEN: Yes, and there is not one, in United States v Dixon, for instance, when your Honours talk about the common law, English or Australian case cited.

I think we addressed your Honours on our answer to the Crown's submission that the proper test for this Court to uphold or set would be an elemental one. The only additional assistance I could provide in respect of that is contained in the article Punishing Multiple Harms, which I only found in the last couple of days. I think it was cited by your Honour Justice Hayne in Sessions and it is (1992) 17 Volume No 1 University of Queensland Law Journal at 20 and there I regret that I did not make copies of that particular article, but in an article which must be somewhat dated and has, if I might say so with respect, some surprising assertions as to general sentencing principles.

That matter is taken up, particularly at 25 and 26 and is largely laid to rest by the authors as being an inappropriate test, that is that the court or a judge should simply compare the elements, the two offences by virtue of their elements and, indeed, the authors at page 25 would refer to that as a triumph of technicality and formality and they cite on page 26 a Queensland case of Kiripatea (1990) 50 A Crim R 417 and the authors maintain that that case demonstrates that a punishable act - that section 16 of the Code States in talking of acts and omissions is referring to what they maintain are really punishable acts and the authors maintain that that case demonstrates that a punishable act does not necessarily coincide with the totality of elements of the offence defined by the legislature. They say the fact that the physical act is the same is not enough if it is not punishable and it is immaterial whether the other elements are the same or not.

KIRBY J: On the stage 2 that has been referred to, have you got any better formulation than Chief Justice Gleeson ventured in Dodd, "gist and gravamen" and all that sort of stuff - metaphors?

MR GREEN: No, other than the other phrases I referred to.

KIRBY J: Or metaphors?

MR GREEN: Yes, or metaphors. No, we have not.

GUMMOW J: Now that significant passage of Lord Devlin in Connelly at 1339, he is talking about offence, if I can refer this to you, the language of the United States Fifth Amendment. He is talking about the common law doctrine of autrefois and he defines it in terms of offence.

MR GREEN: Yes, and goes on to say, of course:

The word "offence" embraces both the facts which constitute the crime and the legal characteristics - - -

GUMMOW J: Indeed.

MR GREEN: In terms of what we would say his handling of the discretionary power in the court takes it further, in our submission, your Honour, and I have referred to that.

GUMMOW J: Yes, I understand that.

MR GREEN: He talks there in referring to what he calls the general rule, a judge should stay an indictment when he is satisfied that the charges therein are founded on the same facts.

GUMMOW J: I understand that. That is stage 3.

MR GREEN: Yes. The only other reference I wanted to make to your Honours is that contained in the Victorian case of Newman & Turnbull (1997) 1 VR 146 and at 151, from line 40, there, his Honour the President said:

Although it has been said that the application of the principle sometimes requires a sentencing judge to adopt an artificial and, at times, quite unrealistic view of the facts -

and he cites Wylie -

it seems to me that, in a case like the present, the matter is very much in the hands of the Crown. If it desires the judge to have the flexibility, in imposing sentence, of dealing with the offender for aggravating circumstances which in themselves amount to a discrete and serious offence, then it is within the Crown's capacity to shape its presentment accordingly. In this case it chose not to do so.

If there is nothing further, they are my submissions, your Honour.

McHUGH J: Yes, thank you. The Court is indebted to counsel for their assistance and we will reserve our decision in this matter.

Adjourn the Court to Sydney and Melbourne at 9.30 tomorrow morning.

AT 12.40 PM THE MATTER WAS ADJOURNED