Gilham v Regina

(2007) 73 NSWLR 308; [2007] NSWCCA 323

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Double jeopardy
3. › Principle of incontrovertibility
4. › Whether prosecution for murder of parents manifestly inconsistent with prior acquittal of murder of brother and conviction for manslaughter of brother
5. › Whether incontrovertibility principle extends to convictions
6. › Crimes Act 1900 (NSW), ss 23, 394A
1. Criminal Law
2. › Double jeopardy
3. › Jeopardy
4. › Whether accused in jeopardy where plea to lesser charge accepted in full discharge of indictment before empanelment of jury
5. › Whether arraignment or empanelment is point of commencement of trial for double jeopardy purposes
6. › Whether absence of evidence capable of supporting conviction negates jeopardy
1. Criminal Law
2. › Double jeopardy
3. › Acquittal
4. › Whether acceptance of guilty plea to manslaughter in full discharge of murder indictment constitutes acquittal of murder
5. › Crimes Act 1900 (NSW), s 394A
1. Practice and Procedure
2. › Abuse of process
3. › Stay of proceedings
4. › Criminal proceedings
5. › Whether subsequent prosecution for different offence constitutes abuse of process where inconsistent with earlier acquittal and conviction
6. › Balancing public interest in prosecution of serious crime against principles of finality and incontrovertibility

Quick Take

The principle of incontrovertibility of judicial decisions, previously developed in relation to acquittals, extends to convictions. Where the incontrovertibility principle is engaged but the earlier verdicts were entered without a hearing on the merits, the justification for protecting the earlier decision from contradiction is significantly diminished, and the public interest in prosecuting serious crimes (particularly murder) may prevail. For double jeopardy purposes, a trial commences at arraignment, not empanelment. Facts agreed in sentencing proceedings are not protected by the incontrovertibility principle.