R v Taufahema

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

THE QUEEN  APPLICANT

AND

MOTEKIAI TAUFAHEMA  RESPONDENT

The Queen v Taufahema [2007] HCA 11
21 March 2007
S142/2006

ORDER

1.Special leave to appeal granted.

2.Appeal allowed.

3.Set aside the order of the New South Wales Court of Criminal Appeal made on 8 May 2006 entering a verdict of acquittal and in its place order that there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation

N R Cowdery QC with D M L Woodburne and J A Girdham for the applicant (instructed by Solicitor for Public Prosecutions (New South Wales))

T A Game SC with G A Bashir for the respondent (instructed by Legal Aid Commission of New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Taufahema

Criminal law – Joint criminal enterprise – Extended common purpose – Respondent alleged to be party to a joint criminal enterprise – Respondent convicted of murder – Appeal against conviction allowed on the ground of a wrong direction on a question of law – Conviction quashed and verdict of acquittal entered.

Criminal law and procedure – Retrial – Whether the verdict of acquittal should be set aside and a new trial ordered – Whether retrial can be ordered where the classification of the joint criminal enterprise differs from that presented at the first trial – Whether difference of classification constitutes a new case not made at the first trial – Meaning of "new case" – Whether retrial appropriate where case at trial adopted by prosecution for tactical reasons – Whether granting retrial on a "new case" is consistent with even-handed disposition of criminal appeals.

Courts – Court of Criminal Appeal – Criminal Appeal Act 1912 (NSW), s 8(1) – Discretion of Court of Criminal Appeal to order new trial upon successful appeal against conviction – Circumstances to be taken into account.

Courts – High Court of Australia – Practice and procedure – Special leave to appeal – Application by Crown for special leave to appeal against a verdict of acquittal entered by a Court of Criminal Appeal – Circumstances to be taken into account.

Words and phrases – "new case", "foundational crime", "extended common purpose".

Crimes Act 1900 (NSW), ss 18, 33B, 546C.
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8(1).

1. GLEESON CJ AND CALLINAN J.   Following a trial in the Supreme Court of New South Wales before Sully J and a jury, the respondent was convicted of the murder of Senior Constable Glenn McEnallay.  He was sentenced to imprisonment for 23 years, with a non-parole period of 16 years.  He appealed against his conviction.  The Court of Criminal Appeal (Beazley JA, Adams and Howie JJ) allowed the appeal and quashed the conviction[1].  The Court of Criminal Appeal declined to order a new trial, and entered a verdict of acquittal.  That aspect of the orders of the Court of Criminal Appeal is the subject of the present application.  The applicant does not challenge the quashing of the conviction, but contends that there should be a new trial.  Although it is submitted that the Court of Criminal Appeal erred in declining to order a new trial, the argument now advanced by the applicant in support of such an order was not put to that Court, and the applicant has made it clear that, at a new trial, the case against the respondent would differ in certain respects from the case argued at the original trial and in the Court of Criminal Appeal.

   [1]Taufahemav The Queen (2006) 162 A Crim R 152.

   The death of Senior Constable McEnallay

2. Senior Constable McEnallay was shot and killed by Sione Penisini, who was convicted of murder following a plea of guilty.  The charge against the respondent was based upon his alleged complicity in the conduct of Sione Penisini.  The relevant legal principles, which are not in dispute, will be identified below.  First it is necessary to state, in summary form, the circumstances said to have given rise to such complicity. 

3. At about 5.30 pm on 27 March 2002, two police officers, who were off duty, saw a green Holden car travelling at excessive speed in a Sydney suburban area.  They noted the registration number.  They reported what they had seen to Senior Constable McEnallay, a highway patrol officer who was in the vicinity.  He made radio enquiries, and learned that the vehicle had been reported stolen some months earlier.  Soon afterwards, he saw the vehicle.  In it there were four men.  Senior Constable McEnallay called for assistance, and drove up behind the vehicle.  The vehicle increased speed, and he pursued.  The pursuit was brief.  The Holden collided with an obstacle on the road and stopped.  Sione Penisini, one of the passengers, left the vehicle with a loaded revolver in his hand, and fired a number of shots into the police car from close range, mortally wounding Senior Constable McEnallay.  The four men, each armed with a revolver, ran away.  They were chased by police officers who had arrived at the scene shortly after the shooting of Senior Constable McEnallay.  Three of the men (including the respondent) were captured immediately.  One was arrested some days later.

4. Apart from Sione Penisini, the other three men in the Holden were the respondent, who was the driver, the respondent's brother, John Taufahema, and Meli Lagi.  All four men were on parole at the time of the incident.  That was a matter of significance in the prosecution case.  Apart from the weapons which each man carried when running away from the police, the police found, in or near the Holden, two pairs of gloves and a hockey mask.  In outlining the prosecution case for the purpose of a pre-trial ruling on evidence, the prosecutor said:

   "It is the Crown case that the motive for the shooting and the motive for attempting to escape from the pursuing police ... was the fact that each of them was on parole; that each of them was in possession of a firearm, in a reported stolen vehicle, which firearm was loaded and also found in the vehicle was a mask and gloves of the type that would readily be used to effect disguise for the purpose of carrying out crime of some sort."

5. The prosecution case was that the four men all understood that, if apprehended, they would have been found to be in breach of their parole conditions, and would have been returned to prison to complete their sentences in custody.  The respondent was charged with, and convicted of, unauthorised possession of a Smith and Wesson .357 revolver.  That conviction is not the subject of this application.  He was also charged with, and convicted of, murder. 

   Criminal complicity

6. The murder charge against the respondent was based on secondary liability. The principal offender was Sione Penisini. Under s 18 of the Crimes Act 1900 (NSW) ("the Crimes Act"), Sione Penisini was guilty of murder because it was his act which caused the death of the police officer, and that act was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Since he fired at Senior Constable McEnallay from close range, there was a compelling inference that he acted with intent to kill or inflict grievous bodily harm. The principle of secondary liability of present relevance was stated by Brennan CJ, Deane, Dawson, Toohey and Gummow JJ in McAuliffe v The Queen[2]:

   "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design.  Such a venture may be described as a joint criminal enterprise.  Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.  The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party:  in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission.  But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

   Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose.  Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture.  However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."

   [2](1995) 183 CLR 108 at 113-114.

7. The principle referred to in the second of the above paragraphs is sometimes described as "extended common purpose"[3].  In Clayton v The Queen[4], the majority gave the following example:

   "If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight."[5]

   [3]Clayton v The Queen (2006) 231 ALR 500 at 504 [14].

   [4](2006) 231 ALR 500 at 504-505 [17].

   [5]See also Gillard v The Queen (2003) 219 CLR 1; Chang Wing-Siu v The Queen [1985] AC 168; Hui Chi-ming v The Queen [1992] 1 AC 34; R v Powell [1999] 1 AC 1.

8. If the alleged common criminal design, or the joint criminal enterprise, in this case had been the shooting of Senior Constable McEnallay, the case would have been one of common purpose of the kind described in the first of the two paragraphs from McAuliffe quoted above.  A case of extended common purpose is one that alleges that the shooting occurred as an incident in the pursuit of some different criminal enterprise, but was foreseen by the respondent as a possibility, the respondent's culpability lying in the participation in the enterprise with such foresight.

9. The total time that elapsed between the first observation of Senior Constable McEnallay by the four men in the Holden and the fatal shooting was less than one minute.  According to the applicant, it was probably closer to 20 seconds.  The prosecution set out to satisfy the jury, first, that the respondent was a party to a criminal enterprise and, secondly, that the nature of the enterprise was such that the respondent could and did foresee the shooting as a possible outcome of the pursuit of the enterprise.  Bearing in mind the sequence of events and the time frame, the development of a plausible case of extended common purpose was not without its problems.  If four criminals, suddenly confronted by a police officer, flee, it is not self-evident that they are doing so in pursuance of an understanding or arrangement to flee.  It is at least possible that they have decided individually that flight is a good idea.  One thing, however, is clear.  It was not the prosecution case at trial, or in the Court of Criminal Appeal, that the joint criminal enterprise which formed the foundation of the respondent's secondary liability for murder extended in time beyond the period between the first observation of the victim by the four men in the Holden and the shooting of the victim by Sione Penisini.  Specifically, it was not the prosecution case at trial that this was, to take up an expression used in the applicant's submissions in this Court, "an armed robbery gone awry".  An armed robbery is a joint criminal enterprise, and often it would be plausible to suggest that one of the participants foresaw the possibility that another participant would make hostile and fatal use of a weapon.  At trial, the prosecution did not attempt to prove that the four men were on their way to commit an armed robbery.  In the course of a pre-trial argument about the admissibility of certain evidence, Sully J remarked that the evidence about the way in which the men were equipped indicated that they "were obviously up to no good and the odds are they were going to commit a robbery".  However, he went on to disclaim any suggestion that such a case could be left to the jury, and the prosecutor did not seek to make out such a case.  Being "up to no good" is not a sufficiently particular description of a joint criminal enterprise.  Suspicion that the men were "going to commit a robbery" is one thing; proof is another.  The prosecution did not invite the jurors to find that this was a case of "an armed robbery gone awry", and Sully J did not direct them that it was open to make such a finding.

10. The specification of the joint criminal enterprise for the application of the principles of criminal complicity inevitably influenced the course of the trial.  It was central to the trial judge's decision to admit certain evidence; it explained certain features of the conduct of the defence case; and it determined the way in which the prosecution case was left to the jury.

    The course of the trial

11. Before the respondent was arraigned, there was argument, and a ruling by the trial judge, about the admissibility of evidence that all four occupants of the Holden were on parole. Reference has been made earlier to the prosecution submission about the motive of the men in avoiding arrest. The prosecution argued that the evidence was relevant to motive, and that, in applying s 137 of the Evidence Act 1995 (NSW), Sully J should accept that the probative value of the evidence outweighed the danger of unfair prejudice. Sully J, ruling that the evidence was admissible, said:

    "The Crown contends that that evidence is admissible, in particular against the accused at his trial, for the reason that it shows that he, the accused, had a strong motive to adhere, individually, to a joint criminal enterprise, namely, the avoidance by all or any of the four men of their lawful apprehension by the police, the shooting of Constable McEnallay having been an incident of the carrying out of that enterprise."

12. As the prosecution case was opened to the jury (although not as the case was finally left to the jury) it was in one respect different from the case as understood by Sully J in his pre-trial ruling on evidence.  In his opening, the prosecutor said: 

    "It is the Crown case that the accused was a party to a joint criminal enterprise that involved the use of a firearm by Sione Penisini; that that joint criminal enterprise was to use a firearm to prevent their lawful arrest, and detention by police ... [i]n this case Constable McEnallay, and it is contemplated during the course of that use of a firearm by this accused, that is his contemplation of the use of the firearm by Sione Penisini involved the possibility that there might be death or a serious injury occasioned.  It is in that way that the Crown says that this accused is also guilty of murder, notwithstanding that he didn't fire any shots at all."

13. That way of putting the case did not necessarily involve extended common purpose.  Sione Penisini fired at Senior Constable McEnallay from close range.  If there had been a joint criminal enterprise to use a firearm, that is to say, a concerted plan, to which the respondent was a party, to use a firearm to prevent arrest, in the circumstances it is difficult to imagine what kind of use might have been in prospect other than the use that in fact occurred.  If there had been a joint plan, to which the respondent was a party, to use a firearm to prevent arrest, and the way in which the men intended to avoid arrest was that one of them would get out of the car and shoot at the police officer, then no extension of ordinary principles of common purpose would be necessary in order to make the respondent liable for culpable homicide.  There was, however, no direct evidence of any such joint plan.  It is not clear that it should have been inferred.  In any event, as the trial progressed, the case altered.  The alleged joint criminal enterprise to use a firearm to prevent arrest became, as foreshadowed by Sully J in his pre-trial ruling, simply a joint enterprise to evade arrest, and the conduct of Sione Penisini became, not conduct to which the respondent had agreed and which he had planned, but merely conduct which he foresaw as a possibility.  Such a case may have been easier to prove factually.  The prosecutor said he acted on "the KISS principle ..., that is keeping it simple".  Plainly, it was a tactical decision, calculated to narrow the area of possible doubt, and therefore to make the prosecution case easier to establish.

14. Two points should be noted.  First, in the present application the prosecution does not seek to put, or to be given another opportunity to put, a case of the kind opened and later withdrawn:  a case that there was an agreement (in the sense explained in McAuliffe), to which the respondent was a party, that Sione Penisini would get out of the car and shoot the police officer.  A case of murder on that basis would be straightforward legally, although factually difficult, but it is no longer the prosecution case, and ceased to be so during the trial.  Secondly, the case the prosecution now seeks to make (extended common purpose founded on a joint criminal enterprise of armed robbery, of which the shooting was a foreseen incident) was never put at any stage of the trial.

15. Although, and perhaps because, the prosecution did not undertake the task of proving that the four men in the Holden were on their way to an armed robbery, the defence called evidence to show that three of the men, but not the respondent, were planning a robbery, or a series of robberies, in Melbourne.  This, presumably, was to explain the contents of the vehicle, in a manner that exculpated the respondent.  The respondent gave evidence about how he came to be driving the car, and about his movements on the day in question.  Then the defence called a witness, Manuel Cackau, who said that he was to be the fourth man in the planned robberies.  The plan, he said, was that he, Sione Penisini, John Taufahema and Meli Lagi, would drive to Melbourne.  The jury might well have regarded the evidence of the respondent and Manuel Cackau as implausible, but in the way the case was finally left to them that hardly mattered.  In cross-examining the respondent, the Crown prosecutor did not put it to him that he was intending to participate in an armed robbery.  The prosecutor put to the respondent that, being on parole, he knew that if he was caught with a gun he was in trouble.

16. At the close of the evidence, and before final addresses, there was discussion, in the absence of the jury, about the way the case would be left to the jury.  Some of that is presently irrelevant.  What is of importance is the way in which the joint criminal enterprise relied upon by the prosecution was refined and defined.  This was reflected in the prosecutor's address and in the trial judge's summing-up.

17. In his address to the jury, the prosecutor said:

    "Here, the Crown says that there was a joint criminal enterprise to escape from lawful apprehension or detection by the men in the car; and the Crown says that in the course of carrying out that escape, one of them, Sione Penisini, shot at the policeman deliberately and fired those shots in such a way that they caused fatal wounds that he so unfortunately suffered.  He did so whilst participating, the Crown says, in a joint criminal enterprise that all four men had embarked upon ... and were continuing upon at the time he fired the shots.

    ...

    For this accused to be guilty, the Crown says that he had to be participating in a joint criminal enterprise, namely, one of escaping jointly with the others or commonly with the others, from lawful apprehension by the police; that when he did so, he contemplated that a firearm might be used in some way to effect their escape; and that with that knowledge he contemplated a risk that death or serious injury might be caused, even unintentionally, by one of the participants; and that having contemplated that risk, he is guilty of the murder if one of the participants in the joint criminal enterprise caused the death of someone."

18. The expression "even unintentionally" appears to invite error, but that is beside the present point.  Between the opening and closing addresses of the prosecutor the alleged joint criminal enterprise had been watered down, to the tactical advantage of the prosecution.  No longer did the prosecution need to establish a joint plan to shoot Constable McEnallay.  There was now said to be merely a joint enterprise to escape from lawful apprehension by the police.  The respondent was said to have contemplated that a firearm might be used in some way to effect the escape.  The jurors were told that this was enough to convict the respondent of murder.

19. The trial judge gave the jury both written and oral directions as to the principles of criminal complicity and the application of those principles to the case.  In his written directions he said:

    "The simplest approach is to ask whether the Crown has satisfied you beyond reasonable doubt:

    1.that the actions of the four men who were travelling in the [Holden] then being driven by the accused, give rise to an inference that they had reached [an] agreement or understanding that all four of them would jointly evade lawful apprehension by [Senior Constable McEnallay]; and

    2.that the accused then knew that there was at least one loaded revolver then being carried in the vehicle; and

    3.that the accused realised that, in the circumstances and the atmosphere then obtaining, there was a risk that any one of the men in the [Holden] might fire that weapon at the police officer; and that in such an event there was a real risk that the police officer might be killed or at least seriously injured; and

    4.that such risks crystallised in the shooting in fact by Penisini of the police officer.

    If you are so satisfied beyond reasonable doubt, then this accused is as responsible as Penisini for the death of that police officer."

20. On that way of putting the case against the respondent, the joint enterprise was identified as evasion of lawful apprehension by Senior Constable McEnallay.  It was not necessary for the prosecution to establish any agreement to shoot (or shoot at, if in the circumstances of this case there is a difference) the police officer.  All that was necessary was for the respondent to realise that there was a risk that, in carrying out the agreement to evade apprehension, one of the other men in the car might shoot at the police officer.  There remained, of course, the factual question:  if four men, suddenly confronted by a police officer, try to get away, what is it that demonstrates that they have agreed to do so?  Agreement is the key to this form of secondary liability.  Without that, the case fails.

21. There was a legal problem with the way the case was left to the jury. Evading apprehension by a police officer is not itself a crime. There are certain crimes that a person might commit in the course of evading apprehension. Section 33 of the Crimes Act makes it an offence maliciously to shoot at any person with intent to resist lawful apprehension. Section 33B makes it an offence to use, or attempt to use, or threaten to use an offensive weapon with intent to prevent or hinder lawful apprehension. There are other cognate offences, one of which was raised in argument in the Court of Criminal Appeal. The way in which the prosecution originally put its case identified a joint enterprise which, if it existed, was criminal. However, it may have been harder to establish factually. Ultimately, the enterprise relied on was expressed in a way that was open to legal criticism. Trial counsel for the respondent complained about this change in the prosecution case, but to no avail.

22. The jury convicted, and there is no reason to doubt that they followed what the trial judge described as the simplest approach to their task.

    The decision of the Court of Criminal Appeal

23. The only ground of appeal to the Court of Criminal Appeal that is of present relevance was that the trial judge misdirected the jury on joint criminal enterprise and common purpose.  It was submitted, among other things, that the "foundational crime" put to the jury was "not open as a matter of law".

24. In the course of written and oral argument in the Court of Criminal Appeal the prosecution did not seek to maintain that evading lawful apprehension is itself necessarily a crime, but argued that Sully J had in mind the offence created by s 546C of the Crimes Act, that is, resisting or hindering a member of the police force in the execution of his duty. In Leonard v Morris[6], Bray CJ said of the corresponding South Australian provision that hindering involves any form of interference or obstruction which makes the duty of a police officer substantially more difficult of performance.  He did not define resisting.

    [6](1975) 10 SASR 528 at 530-532.

25. Adams J, with whom Beazley JA and Howie J agreed, said:

    "The Crown contended in this Court that the foundational crime was that created by s 546C of the Crimes Act 1900. Whilst not resiling, in terms, from the case put below, that the foundational offence was evading arrest, the Crown prosecutor in this Court contended that another available offence was that of hindering the officer in the execution of his duty. One major obstacle in the way of this submission is that such a case was not put at trial.

    It was submitted that the word 'hinder' is a word of ordinary parlance without any special meaning and that its usual definition (for example, that in the Shorter Oxford English Dictionary) is 'to keep back, delay, impede, obstruct, prevent'.  By not stopping the [Holden] when Senior Constable McEnallay signalled that he should do so by operating the siren and the flashing lights on his vehicle, it is submitted that the [respondent] sought to delay or impede an impending lawful arrest.  (I interpolate that, the officer undoubtedly wished the vehicle to heed the signals and stop but whether he was then intending to arrest anybody is uncertain.)  The Crown also contends, relying on the fact that all four offenders fled the scene, that they had agreed that they would run away from the officer and that the agreement to run away was an agreement to 'hinder' in the sense, again, of delaying or impeding and hopefully preventing  their arrest.  The researches of counsel did not produce any authority stating or approving such a wide use of 'hinder'.  If correct, it would mean, for example, that an offender in Sydney who heard that a warrant for his arrest had been issued in Perth and left his place of residence to hide from the police would be guilty of an offence where the effective changing of his address was, in fact, to delay, impede or prevent it.  (I mention that – as appears from the trial judge's directions extracted below – the Crown case at trial was not merely that the occupants of the car agreed to evade the officer, but that they had agreed to avoid arrest.  There was no evidence, as stated above, that the officer was intending to arrest anyone when he was killed.)

    In Leonard v Morris ... Bray CJ ... described the actus reus of the offence established by section 546C as 'any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance'. This passage was adopted as correct by Sully J in Worsley v Aitken & Anor ...  Worsley, it was alleged, took hold of the police officer's jacket when the officer was endeavouring to assist another officer then in the course of arresting another person during a melee, saying to the officer 'leave him alone, he's done nothing'.  The officer desisted from his attempt to assist with the arrest of the suspect and pushed Worsley away before returning to his task.  Of course, Sully J was there considering an actual physical interference by the accused person with the arrest which the officer was about to effect.  That is not the use of hinder upon which the Crown relies in this case.

    The description of the actus reus of this offence given by Bray CJ in Leonard v Morris has been regarded, in my experience, as applicable in this State for decades and I would not be prepared to extend the offence any further by a wider use of the word 'hinder' than that which it has hitherto been understood to have.  I am of the view that the actus reus of the offence created by s 546C is indeed that ascribed to it by Bray CJ in Leonard v Morris.  It follows that the foundational offence upon which the Crown relied did not exist.  In the circumstances, this conclusion is fatal to the correctness of the conviction.  It is important, I think, to point out that it was not – at least, ultimately, for good reason I think – the Crown case that the [respondent] had a common purpose with Penisini to use a gun to threaten or attack Senior Constable McEnallay in order to evade or avoid arrest.  There was simply no evidentiary basis for such a case, as the prosecutor at trial conceded.  The highest point at which the Crown could aim was that the [respondent] foresaw the possibility that Penisini might use his weapon against the officer (though, on my view, this must be mere speculation).  There was no evidence that could justify the conclusion that the [respondent] agreed with Penisini that he should use the gun to threaten, let alone shoot at the police officer or that he encouraged him to do so."

26. On the question whether there should be an order for a new trial, Adams J said:

    "I propose that the conviction be quashed.  In my view, there is no evidentiary basis for a conclusion that the [respondent] was party to an agreement that all four men would attempt to evade the police officer, as distinct from having made a decision that he would attempt to do so and knew that the others would do the same.  Nor was there a basis for concluding that he adverted to the possibility that one of the others might use a gun in the course of evading the officer.  The case proposed in this Court by the Crown, namely that there was an agreement to hinder the officer in the execution of his duty, was not put at trial and this Court should not order a new trial to permit such a different case to be put:  R v Chekeri ... More fundamentally, the hindering identified – the running away – is not hindering within the meaning of s 546C of the Act. There is thus no foundational offence or joint criminal enterprise upon which the Crown can rely for the purpose of establishing the culpability of the [respondent] for the (conceded) unintentional consequence of shooting the police officer. As the [respondent] could not be convicted of murder or manslaughter on the cases as formulated by the Crown both at trial and in this Court, it seems to me that it is not appropriate to order a new trial."

27. By the conclusion of argument in the Court of Criminal Appeal, the prosecution, at various stages of the proceedings, had identified the joint criminal enterprise, participation in which resulted in the respondent's complicity in the crime of murder, in three different ways.  First, the joint enterprise (or common criminal design) was said to be using a firearm to avoid arrest and detention.  That would have involved an agreement that a firearm would be used to avoid arrest.  This was abandoned during the trial.  Secondly, as the case was left to the jury, the joint enterprise was said to be to evade lawful apprehension.  Thirdly, in the Court of Criminal Appeal, the joint enterprise was said to be hindering or resisting a police officer in the execution of his duty. 

28. It was suggested in argument in this Court that the Court of Criminal Appeal misapplied legal principle by requiring for extended common purpose in a murder case, not merely an agreement to commit what was called the foundational offence, but also an agreement to the act causing the death of the victim.  No such error appears from the reasons of Adams J.  His reasoning, as would be expected, responded to the case as put to the Court of Criminal Appeal.  He merely pointed out, with justification, that, for the attempted evasion of apprehension which was said to constitute the joint criminal enterprise which was the "foundational offence", there had to be an agreement (in the sense explained in McAuliffe) and not merely four men all attempting to get away from the police officer.  Adams J did not suggest that, on the case as finally put by the prosecution, it would have been necessary to show, in addition to a "foundational" joint criminal enterprise, an agreement to the shooting.

29. The applicant's primary submission is that there should be a new trial so as to enable the prosecution to put, and a jury to consider, a case that this was "an armed robbery gone awry".  On such a case, which was not put at trial or in the Court of Criminal Appeal, the relevant joint criminal enterprise, to which the respondent was a party, was armed robbery, and the respondent's secondary liability for the murder of Senior Constable McEnallay arose from his continuing participation in that enterprise with the foresight of the possibility that another person might be assaulted with intention to kill or cause really serious injury to that person.

30. If that had been the prosecution case at the trial before Sully J, the course of the trial would almost certainly have been different.  The question of the admissibility of the evidence that the respondent and the other men in the Holden were all men with criminal convictions who were on parole at the time of their observation by Senior Constable McEnallay would have taken on a different complexion.  It was obviously to the advantage of the prosecution to have that evidence, but the basis upon which Sully J decided to admit the evidence would not apply.  Secondly, the conduct of the defence case would probably have been different.  It is hardly likely that the defence would have called Manuel Cackau as a witness.  Thirdly, the relationship between the "foundational crime" and the allegedly foreseen shooting of a third party would have borne a different aspect.

31. Where a case of murder is based upon the form of culpability described as "extended common purpose", the identification of the joint criminal enterprise, participation in which results in the accused's secondary liability, is an important particular of the case which the accused must meet.  That is not to say that the prosecution must be able to identify the joint criminal enterprise with complete specificity.  However, the judge and the jury must know enough about the enterprise to enable a decision to be made, first, as to whether it is criminal, and, secondly, as to whether the shooting was within the scope of the common purpose reflected in that joint criminal enterprise in that it was foreseen as a possible incident of the enterprise as explained in cases such as McAuliffe and Clayton.  The judge must know enough about the enterprise to rule on questions of admissibility of evidence.  Counsel for the accused must know enough about the enterprise to decide how to conduct the defence case.  That is why, in the proceedings before Sully J, so much attention was devoted, before and during the trial, to the formulation of this aspect of the prosecution case.  The function of particulars in criminal proceedings was explained in Johnson v Miller[7], Giorgianni v The Queen[8], and Stanton v Abernathy[9].  If to do so is not inconsistent with the interests of justice, particulars may be amended during the course of a criminal trial, as they were in the present case.  The joint criminal enterprise that was left to the jury for consideration at the end of the trial was different from that opened by the prosecution.  The joint criminal enterprise put in argument in the Court of Criminal Appeal was different again.  As has been explained, by the end of argument in the Court of Criminal Appeal, the prosecution at various stages of the proceedings had particularised the "foundational crime" said to be the source of the respondent's secondary liability for murder in three different ways.  Yet those three different particulars had one thing in common:  the focus of attention was the conduct of the four men in the Holden during the very brief time between their first observation of Senior Constable McEnallay and the shooting of Senior Constable McEnallay by Sione Penisini, and their desire to evade apprehension by him.  It was this that made admissible the evidence that they were all on parole at the time.  That was said to be the motive for their joint plan to avoid apprehension, and the existence of that alleged joint plan was what was said to produce the consequence that, when one of the men, in the course of attempting to avoid apprehension, shot and killed the police officer, they were all guilty of homicide.

    [7](1937) 59 CLR 467 at 489.

    [8](1985) 156 CLR 473 at 497.

    [9](1990) 19 NSWLR 656.

    The application for special leave to appeal

32. In R v Benz[10], this Court discussed the considerations relevant to the exercise of its power to grant special leave to appeal from a decision of a Court of Criminal Appeal which has quashed a conviction and entered a verdict of acquittal.  An example of the exercise of that power is R v Rogerson[11].  As Mason CJ explained in Benz[12], while there is a reluctance to grant special leave to appeal against an acquittal by an intermediate appellate court, sometimes expressed by reference to the need to show "very exceptional circumstances"[13], the considerations of double jeopardy that would apply to an attempt to appeal from a verdict of acquittal by a jury are not the same as those that apply when a convicted person has initiated the appellate process, which includes the possibility of a decision by a final court of appeal.  If an intermediate court of appeal, whose jurisdiction has been invoked by a convicted person, makes an error in that person's favour, the possibility remains of correction of that error within the appellate process itself.  This will be of special importance if the error is of such a kind as is likely to affect the general administration of the criminal law, as in the case of an erroneous decision on a point of law or procedure of general application.  It may also be of significance where correction of error is necessary to ensure the due administration of justice in the individual case[14].  It is, however, unnecessary to pursue the question of the kind of error by a Court of Criminal Appeal that will justify intervention by this Court even in the case of an acquittal.  It is unnecessary because, in this case, the Court of Criminal Appeal made no error.  Its reasons for decision, which were addressed to the arguments that were put to it, were correct.  The applicant for special leave to appeal to this Court contends that the order of the Court of Criminal Appeal, by entering an acquittal and failing to order a new trial, was wrong, not because of any error in the reasoning of the Court of Criminal Appeal on the arguments put to it, but because, for a reason not advanced to or considered by the Court of Criminal Appeal, there should have been an order for a new trial.  In brief, the purpose of the application for special leave to appeal is to have this Court, in the exercise of its appellate jurisdiction, vary the orders made by the Court of Criminal Appeal in allowing the appeal to that Court, and order that there be a new trial for a reason not previously argued.

    [10](1989) 168 CLR 110.

    [11](1992) 174 CLR 268.

    [12](1989) 168 CLR 110 at 111-113.

    [13]R v Lee (1950) 82 CLR 133 at 138.

    [14]R v Benz (1989) 168 CLR 110 at 113-114.

33. In Eastman v The Queen[15] this Court rejected the idea that a court exercising criminal appellate jurisdiction has an obligation, of its own motion, to examine the material before it in search of any possible miscarriage of justice, regardless of the way in which the case has been put to it.  In the present case, the Court of Criminal Appeal was not obliged, of its own motion, to consider whether there might have been a way of putting the case against the present respondent, even though not advanced at trial or before the Court of Criminal Appeal, which, if accepted by a jury, would have warranted his conviction for culpable homicide, whether murder or manslaughter.  The failure of the Court of Criminal Appeal to undertake such a course was not an error, and does not constitute a precedent that, in the general interests of the administration of justice, requires correction.

    [15](2000) 203 CLR 1.

34. Let it be supposed, however, contrary to the fact, that, at some stage before final orders had been made by the Court of Criminal Appeal, the present applicant had approached that Court to have the matter listed for further argument, and had submitted that, if the appeal were allowed, there should be an order for a new trial in order to enable the prosecution to put against the accused a case of culpable homicide, based on extended common purpose, in which the relevant joint criminal enterprise was an armed robbery.  Unless it can be shown that the Court of Criminal Appeal's proper response to such an application would have been to hear the argument, agree with it, and order a new trial then the present application to this Court must fail.  Even if that could be shown, there would be a further question relating to the limitations on the circumstances in which this Court will allow an appeal on a ground not taken at trial or in an intermediate appellate court[16].  If, however, that could not be shown, it would be unnecessary to examine that further question.

    [16]See, for example, Crampton v The Queen (2000) 206 CLR 161.

35. If an application of the kind supposed had been made to the Court of Criminal Appeal, that Court would have had to consider the nature of its power, upon allowing an appeal, to order a new trial. The source of that power is s 8(1) of the Criminal Appeal Act 1912 (NSW) which provides that on an appeal against conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. As Dawson J pointed out in King v The Queen[17], that section confers a broad discretion, and the discretion is to be exercised in accordance with settled principles.  Dawson J said[18]:

    "It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective.  In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial."

    [17](1986) 161 CLR 423 at 433.

    [18](1986) 161 CLR 423 at 433.

36. In support of the proposition in the second sentence of that paragraph, Dawson J referred to what was said by Dixon J in R v Wilkes[19].  What, in the context, is meant by "a new case"?  Plainly, it does not mean a different charge.  Subject to certain rules of preclusion, or to considerations of oppression, if the prosecuting authorities fail to establish that an accused person committed one offence they may later charge him or her with another offence.  In such circumstances, there is no new trial in other than a colloquial sense.  There is a further and different trial.  In the context of a new trial for the same offence, the reference to a "new case" must be to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence.

    [19](1948) 77 CLR 511 at 518.

37. It may be asked why "the Crown should not be given an opportunity to make a new case which was not made at the first trial".  If the prosecuting authorities at trial fail to satisfy the jury of their case, as particularised, then that is the end of the matter.  As a general rule, the jury's acquittal prevents a further attempt to prove the same offence.  The prosecution cannot bring the same charge again, relying on new evidence, or new arguments.  If, however, there is a conviction at trial, but the conviction is quashed on appeal, and there is an evidentiary basis for a possible "new case", can the Court of Criminal Appeal order that the prosecution may attempt, at a new trial, to make out a new case?  The considerations identified in Crampton v The Queen[20] as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also.  In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter.  It is the executive branch of government that decides whether to prosecute, and what charges to lay.  A trial is fought as a contest between the executive government and a citizen.  The judge presides neutrally over that contest.  Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.  The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence.

    [20](2000) 206 CLR 161 at 172-173 [15]-[20].

38. The decision by trial counsel for the prosecution in the present case concerning the identification of the relevant joint criminal enterprise was a considered decision, with plain tactical implications.  They included the admissibility of the evidence that the four men in the car were all on parole, and the ease or difficulty of proof of the alleged enterprise.  The case which the applicant now seeks an opportunity to make at a new trial is a new case within the principles earlier stated.  It is a case based on a radically different particularisation of the joint criminal enterprise fundamental to the respondent's alleged secondary liability for the killing of Senior Constable McEnallay.  The Court of Criminal Appeal should have refused an order for a new trial on that basis, if an attempt had been made to raise the argument.  That being so, the present application to this Court should fail.

39. Two further matters may be noted.  First, it is far from clear that the case which the prosecution now seeks to put, and which was not put at trial, is of substantial plausibility.  It is one thing to say that the four men in the Holden were up to no good and that it looks as though they were equipped for crime, probably an armed robbery.  It does not follow that the evidence justifies a conclusion, beyond reasonable doubt, that at the time Senior Constable McEnallay came upon them they had embarked upon such a criminal enterprise.  That may help to explain why this new way of putting the prosecution case was discarded in the first place.  It is consistent with Sully J's original reaction to the case.  We do not know, and cannot know, why the "armed robbery gone awry" theory did not appeal to counsel for the prosecution at trial.  We do not know what was in counsel's brief.  However, from such as we know, his decision not to follow that line of argument was understandable.  This leads to the second matter.  Suppose the respondent's appeal to the Court of Criminal Appeal had failed.  Suppose his conviction of murder had been upheld, and he had sought special leave to appeal to this Court.  Suppose he attempted to advance an argument that had not been put by his counsel at trial or in the Court of Criminal Appeal.  He would have had to show exceptional circumstances to be allowed to put the argument.  If it appeared that the argument had not been put in the courts below for a tactical reason, his prospects of being allowed to raise it in this Court for the first time would have been negligible.  It would be anomalous if the prosecution were in a different position.  The adversarial system has its advantages, and disadvantages, but it should work in a fashion that is even-handed.

    Conclusion

40. Special leave to appeal should be refused.

    GUMMOW, HAYNE, HEYDON AND CRENNAN JJ.

    The background

41. The procedural background.  The relevant background can be stated briefly.  Motekiai Taufahema ("the accused") was convicted by a jury after a trial in the Supreme Court of New South Wales of murdering Senior Constable Glenn McEnallay.  He was also convicted of unlawful possession of a Smith and Wesson .357 revolver.  The Court of Criminal Appeal allowed an appeal against the murder conviction, and ordered an acquittal rather than a new trial.  The prosecution seeks special leave to appeal against that order. 

42. The factual background.  There was evidence before the jury capable of supporting the following factual conclusions.  Senior Constable McEnallay died seven days after being shot by Sione Penisini.  Penisini was one of four men in a car which had been observed driving at excessive speed and erratically in other ways.  Earlier in the day Penisini had telephoned the accused and his brother, John Taufahema.  The latter two then travelled by train from Punchbowl to Blacktown.  At Blacktown Station they met Meli Lagi.  The three men went by taxi to Penisini's house, picked him up, and collected a car from a friend of Penisini.  All four men were on parole.  The car had been reported to the police as having been stolen.  Although the accused was not licensed to drive, he drove the car to his house.  He then drove the car until it came under the observation of Senior Constable McEnallay, who had been alerted by other police officers to the fact that the car had been seen being driven erratically on the way to the accused's house. 

43. The following events then took place in no more than a minute before Senior Constable McEnallay was shot.  The car containing the four men was pursued by and fled from Senior Constable McEnallay, struck a gutter, and stopped.  Senior Constable McEnallay summoned aid.  The four men leaped from the car.  Penisini fired five shots into the windscreen of the police car, four of which hit Senior Constable McEnallay, and one of which caused head wounds from the effects of which he later died. 

44. The four men, each carrying a loaded gun, which had been stolen two weeks earlier, ran away, but were pursued by police officers who had responded to Senior Constable McEnallay's call for aid.  Penisini and John Taufahema were soon arrested after attempting to "car-jack" a passing vehicle.  The accused was also soon arrested after being seen hiding the gun he was carrying behind some flowerpots in a garden (a matter about which he later lied to the police).  The fact that the accused was in possession of the gun is no longer in dispute; his conviction on that charge was not in issue.  Lagi was arrested some days later.  The police found in the car a hockey mask and a pair of gloves, and when they apprehended Penisini and John Taufahema they found nearby a second pair of gloves, a pair of sunglasses and a pouch of ammunition.  They also found loose bullets near the car driven by the accused. 

45. A primary claim which the accused made in an interview with the police and in his evidence at the trial was that he had no knowledge that there were any loaded firearms or other incriminating items in the car, and that he only came to possess a gun when Penisini threw him one after firing the shots.  He also called a witness, Manuel Cackau, whose evidence, on the accused's argument, tended to suggest that while Cackau and the other three men planned to travel to Melbourne in order to commit robberies, the accused was not party to that agreement. 

46. The prosecution case at the trial.  The prosecution put its case in two ways at the trial.  It opened the case to the jury by saying that the accused was party to a joint criminal enterprise, namely one involving the use of a firearm to prevent the lawful arrest of the men in the car by the police.  But the prosecution case by the end of the trial as put by prosecution counsel to the jury and as explained in the trial judge's summing up was that there was a joint enterprise to evade arrest, involving the shooting of a police officer as a foreseen possibility. 

    Ground 2.4

47. Ground 2.4 of the applicant's draft Notice of Appeal was:  "The Court of Criminal Appeal erred in refusing to order a re-trial and entering a verdict of acquittal in the circumstances of the present case." 

48. The Court of Criminal Appeal's conclusions.  The key elements of the position arrived at by the end of the Court of Criminal Appeal's judgment were as follows.

    (a)It was necessary to allow the accused's appeal to the Court of Criminal Appeal because the directions of the trial judge were erroneous in relation to the foresight necessary if the accused were to be convicted of murder.  In substance, counsel for the prosecution conceded that in the Court of Criminal Appeal[21].

    [21]Taufahema v The Queen (2006) 162 A Crim R 152 at 165 [38].

    (b)It was also necessary to allow the appeal for another reason.  The prosecution case was left to the jury as depending on an agreement to commit a particular "foundational crime" in the course of which another crime had been committed which had been within the contemplation of the accused[22].  The difficulty identified by the Court of Criminal Appeal was that while the "foundational crime" relied on at the trial was a "crime of avoiding lawful arrest", that was in truth no crime[23].  A further difficulty arose out of an attempt to sidestep this difficulty by relying on an alternative candidate for the "foundational crime", advanced, according to the Court of Criminal Appeal, only in that Court[24], namely hindering a police officer in the execution of his duty.  The Court of Criminal Appeal concluded that the evidence was incapable of supporting the view that any agreement to commit that crime had been made[25].  In this Court the Director of Public Prosecutions did not quarrel with the Court of Criminal Appeal's reasoning in those respects.  

    [22]Whether this part of the criminal law is usefully to be analysed by reference to "foundational crimes" is a matter which arose in argument.  It did not form any part of the proposed grounds of appeal and in view of the brevity of the argument on the point, and the fact that it is not decisive of the outcome of this case, nothing more is said about it.  But see Gillard v The Queen (2003) 219 CLR 1 at 39 [124] per Hayne J (second sentence).

    [23]Taufahema v The Queen (2006) 162 A Crim R 152 at 160-161 [20]-[23] and 162 [27].

    [24]Taufahema v The Queen (2006) 162 A Crim R 152 at 161 [24].

    [25]Taufahema v The Queen (2006) 162 A Crim R 152 at 161-162 [24]-[27].

    (c)The Court of Criminal Appeal also found other flaws in the trial judge's directions:  they did not sufficiently distinguish between separate decisions by each of the four men in the car to escape and an agreement between them to do so[26].  In this Court the Director of Public Prosecutions did not quarrel with the Court of Criminal Appeal's reasoning in these respects either.

    [26]Taufahema v The Queen (2006) 162 A Crim R 152 at 163 [30].

    (d)Since the summing up rested on a "wrong decision" of a "question of law" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), and since no question of the proviso to that sub-section being applied could arise, the Court of Criminal Appeal was obliged to allow the appeal[27]. 

    (e)Section 6(2) of the Criminal Appeal Act provides:

    "Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered."

    Among the "special provisions" is s 8(1) which provides:

    "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."

    Thus a final question was left – whether the Court of Criminal Appeal should order an acquittal or a new trial.  To that question little attention was directed in argument before the Court of Criminal Appeal, and the ground on which the prosecution now says that a new trial should have been ordered, instead of the acquittal which the Court of Criminal Appeal actually ordered, was not raised with the Court of Criminal Appeal. 

    [27]Section 6(1) provides:

    "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

49. The fundamental issue.  One of the key "circumstances" referred to in s 8(1), and one of the key factors in assessing whether a new trial is an adequate remedy, is "the public interest in the due prosecution and conviction of offenders"[28].   It is in "the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury."[29]  This passage highlights two points about the present case. 

    [28]R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ.

    [29]Reid v The Queen [1980] AC 343 at 349 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel.

50. First, there is no doubt that Senior Constable McEnallay was murdered; almost all murders are very serious crimes, and murders of police officers while carrying out their duties are no exception to that generalisation. 

51. Secondly, whether or not one chooses to call the errors identified by the Court of Criminal Appeal "blunders", they were certainly "technical", and they were errors by the trial judge rather than by the prosecution.  For it was the trial judge rather than the prosecution who bore primary responsibility for the circumstances which led the Court of Criminal Appeal to allow the appeal[30].  Apart from the errors in summing up criticised by the Court of Criminal Appeal, it was by reason of the trial judge's influence, in a long debate with counsel for the prosecution after the evidence had closed but before final addresses, that the prosecution ended up not pressing its original case as opened to the jury, instead relying only on a case turning on a "foundational crime" of evading lawful apprehension which does not exist.  The fact is that the trial which took place was a flawed one.  The question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal – that is, an order terminating the possibility of any investigation by a jury, in an unflawed fashion, of the accused's role in the circumstances leading to Senior Constable McEnallay's death.  An order for acquittal conflicts with "the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision."[31]  In Reid v The Queen[32] the Privy Council approved the following statement of the Full Court of Hong Kong[33]:

    "It is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a Jury, and not left as something which must remain undecided by reason of a defect in legal machinery."

    The reference to "complainant" is to be explained by the fact that that case was one in which a doctor allegedly raped a patient.  It is not only those who live to complain about crime whose interests are relevant, but also the relatives and friends of those who do not.  The Full Court of Hong Kong described the case before it as one "of peculiar heinousness", and so is this case.  The question, then, is whether there is some good reason for not allowing a jury to decide whether the prosecution can prove its case, and for allowing the matter to remain undecided because of the defects in the first trial.

    [30]cf R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ (pointing to investigative failures by the authorities and "inappropriate and unfair" conduct by the prosecution at the trial).

    [31]R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ.

    [32][1980] AC 343 at 350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel.

    [33]Ng Yuk Kin v The Crown (1955) 39 HKLR 49 at 60 per Gould, Gregg and Wicks JJ.

52. Insufficiency of evidence at one trial does not justify an order for a second trial.  In Gerakiteys v The Queen[34], Gibbs CJ, when considering what was a sound exercise of the power of a court of criminal appeal to order a new trial, said:

    "It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction[35]."

    That proposition rests in part on the idea that if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial; and in part on the idea that a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first[36].

    [34](1984) 153 CLR 317 at 321. See also at 322 per Murphy J, 331 per Deane J.

    [35]See Reid v The Queen [1980] AC 343 at 349-350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel; and see also R v Wilkes (1948) 77 CLR 511 at 518 per Dixon J and Andrews v The Queen (1968) 126 CLR 198 at 211 per Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ.

    [36]Reid v The Queen [1980] AC 343 at 349-350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel.

53. That proposition does not apply in relation to either of the ways in which the prosecution case was put at this trial.  That is partly because the prosecution does not propose to rely on any of these ways at the second trial which it is seeking.  It is partly because the appeal did not succeed by reason of evidentiary insufficiency, but by reason of the fact that the foundational crime relied on was not a crime, and by reason of deficiencies in the summing up.  The accused's notice of appeal in the Court of Criminal Appeal did not contend that the jury's verdict was unreasonable or could not be supported having regard to the evidence.   

54. The case to be advanced at the second trial.  The question whether there should have been an order for a new trial must be approached in the light of the way in which the prosecution wishes to conduct the second trial.  It desires to contend that the accused and the other three men in the car were engaged in a joint criminal enterprise of armed robbery, and that shooting another person was foreseen as a possible incident of that enterprise.  The issue is whether, had the Court of Criminal Appeal been informed of that desire, it ought to have ordered a new trial.  That the prosecution should have raised this point for the first time in this Court is regrettable, but there is no absolute bar to accused persons doing this[37], and there can be no absolute bar to the prosecution doing so as well.

    [37]Crampton v The Queen (2000) 206 CLR 161.

55. Immaterial factors.  Among the factors which conventionally point against orders for new trials are some which were not relied on and do not arise here.  One is whether a significant part of a sentence has been served[38]:  here only a relatively small part of a very long sentence of 23 years imprisonment with a 16 year non-parole period has been served.  Another is the expense and length of a second trial[39]:  here the first trial took 15 days, but this was not disproportionate to its importance.  Another is the length of time between the alleged offence and the new trial[40]:  here it is not so great as to prejudice the accused.  Another is whether a successful appellant to the Court of Criminal Appeal has been released from custody[41]:  here the accused remained in custody after the Court of Criminal Appeal's order for acquittal, serving his sentence on the conviction for unlawful possession of a firearm.  Other factors are relevant, but it is not said that they are here decisive, for example the fact that a trial is an ordeal for accused persons (and, it may be added, for witnesses and others affected by the prosecution and the events giving rise to it).  Whether accused persons should have to undergo that ordeal for a second time, through no fault of their own, depends upon whether the interests of justice require it[42].

    [38]Jiminez v The Queen (1992) 173 CLR 572 at 590 per McHugh J.

    [39]Reid v The Queen [1980] AC 343 at 350.

    [40]Parker v The Queen (1997) 186 CLR 494 at 520 per Dawson, Toohey and McHugh JJ. See also R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ; Reid v The Queen [1980] AC 343 at 350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel.

    [41]Everett v The Queen (1994) 181 CLR 295 at 302 per Brennan, Deane, Dawson and Gaudron JJ quoted discussion of a similar point in R v Wilton (1981) 28 SASR 362 at 367-368 per King CJ.

    [42]Reid v The Queen [1980] AC 343 at 350.

56. It is desirable to concentrate on the grounds said to justify the refusal of special leave to appeal.  They are five in number.  They may be analysed under the heads of prosecution tactics, departure from well-considered earlier tactics, no opportunity to make a new case, an implausible case and parity of treatment for prosecution and defence.

57. Prosecution tactics.  Counsel for the accused relied heavily on the contention that it was in effect oppressive for the prosecution, having failed to achieve success in the way it ran the first trial, to try to achieve success in a second trial, particularly since the point on which it seeks to have a second trial was not raised before its special leave application to this Court.  If that contention were sound, the prosecution could never raise a fresh point in this Court, and there could never be an appeal in this Court against an order of acquittal made by a court of criminal appeal.  Yet the prosecution can raise fresh points in this Court, just as accused persons can, and there can be successful appeals in this Court against orders of acquittal made by intermediate courts of appeal, unusual though they may be.  At other points of his argument, counsel for the accused did correctly concede that the Court of Criminal Appeal had discretionary power to order a new trial in the present circumstances, however difficult the decision whether to do so or not.  It follows that since the Court of Criminal Appeal was not asked to exercise its discretion on the basis now relied on, this Court may examine what that Court should have done if it had been asked to exercise it on that basis.  That makes it necessary to examine whether the particular circumstances render it wrong to grant this particular special leave application and allow the appeal. 

58. Departure from well-considered earlier tactics.  A related submission turned on the proposition that it is common for appellate courts to conclude that no miscarriage of justice arises where an error of the trial judge is not complained of by counsel appearing for the accused in a criminal trial, or counsel otherwise conducts the trial in a particular way.  However, it does not follow that counsel for the prosecution is debarred from requesting a new trial to be conducted on a different basis from an earlier trial in which a conviction was obtained and then set aside on appeal, merely because the basis on which the earlier trial was conducted appears to have been a carefully considered one.  That may be a relevant factor, but it is to be taken into account with all other relevant factors, one of which is how different the new basis is from the old, and in what ways. 

59. No opportunity to make a new case.  A third ground said to justify the refusal of special leave to appeal was also pressed strongly by counsel for the accused.  It relies on Dawson J's statement in King v The Queen[43], which the prosecution did not dispute, that "the Crown should not be given an opportunity to make a new case which was not made at the first trial".  It reasons that a "new case" is to be assessed by reference to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it.  The reasoning draws an analogy with the restrictions on an accused person taking a new point in a criminal appeal.  It states that the decision of counsel for the prosecution at the trial to identify the joint criminal enterprise as he did was a considered decision, with plain tactical implications, two of which were the admissibility of the evidence that the four men in the car were all on parole, and the ease or difficulty of proof of the alleged enterprise.  The case intended for the second trial is a "new case" because it is a case based on a radically different particularisation of the joint criminal enterprise. 

    [43](1986) 161 CLR 423 at 433.

60. The authorities on whether appellate courts should order a new trial or an acquittal offer very little explicit exposition of what is meant, conceptually, by a "new case which was not made at the first trial".  However, the way the authorities have been decided tends to show that the "new case" test is not easy for accused persons to satisfy.  It is proposed to examine four of those authorities. 

61. The authorities commonly cite[44] Dixon J's judgment in R v Wilkes[45].  R v Wilkes was a case in which a man and his wife were charged with three offences:  the manslaughter of one Mrs Boulton; conspiracy with Boulton and one Mr Prior to procure the unlawful miscarriage of Boulton; and conspiracy with Prior to defeat the course of public justice.  Prior was given a pardon, and was the main prosecution witness.  Dixon J said that the prosecution "presented a case ... depending upon the view that the prisoners and [Prior] had been engaged in a series of steps directed to procuring the abortion of a pregnant woman, and that in the attempt to procure the abortion they, or one or more of them, had killed her and then had attempted to conceal their crime by telling a lying story accounting for the body."[46]  Below that "case" will be called "the initial case".  The jury acquitted on the first two counts but convicted on the third.  The Court of Criminal Appeal of South Australia allowed an appeal in the following words[47]:

    "In the light of the seeming inconsistency of the verdicts, the absence of corroboration of Prior, and the criticisms we have made of the learned judge's directions, we cannot feel satisfied that the verdicts have been reached upon proper grounds.  We do not think that this is a case in which we should order a new trial.  There was, of course, evidence upon which a jury properly directed could have found the appellants guilty on the third count, and in ordinary circumstances it would have been proper to order a new trial.  The present case is, however, complicated by the verdict on the first and second counts.  We have no power to set aside a judgment of acquittal following a verdict of not guilty, and, consequently, we cannot order a new trial on all three counts.  If we had the power we would do so ...  On a new trial confined to the third count, Prior's story will have to be told again at length, in order to make it intelligible.  In directing the jury afresh, the presiding judge must warn the jury against the danger of acting on his evidence.  It will also be necessary[[48]] to tell them that, as between the Crown and the accused, it has been conclusively established that they did not kill Mrs Boulton and, further, that they did not conspire with Prior and Mrs Boulton to procure her miscarriage.  With these directions, doubt will immediately arise as to Prior's story, and the judge is likely to feel that he ought to advise the jury not to convict."

    [44]Thus Dawson J did so in King v The Queen (1986) 161 CLR 423 at 433, McHugh J did so in Jiminez v The Queen (1992) 173 CLR 572 at 590, and Kirby J did so in Parker v The Queen (1997) 186 CLR 494 at 539.

    [45](1948) 77 CLR 511 at 518.

    [46]R v Wilkes (1948) 77 CLR 511 at 517.

    [47]R v Wilkes (1948) 77 CLR 511 at 513-514.

    [48]Dixon J questioned whether it would be necessary to tell the jury these things, while accepting their correctness:  R v Wilkes (1948) 77 CLR 511 at 518.

62. Dixon J said[49]:

    "On the case made for the Crown it was difficult for the jury to convict on the third count consistently with their acquittal on the first two counts.  Logical possibilities have been suggested as to the manner in which the jury might have arrived at the result.  It is suggested that they might have failed to believe substantial parts of the story to which the accomplice deposed and have combined the rest with part of the account given by the accused, which they may have been inclined to accept.  The suggestion is that in some such way the jury may have supposed that the attempted abortion which caused the deceased's death was carried out, not by the accused, but by an unnamed and unknown person who would be a fifth actor in the drama."

    [49]R v Wilkes (1948) 77 CLR 511 at 517.

63. Dixon J then continued[50]:

    "It must be conceded of course that, as logical possibilities, such hypotheses are conceivable.  But the case made for the Crown did not contemplate any such supposition, and it would in my opinion be entirely unsatisfactory to leave a verdict of guilty on the third count standing on the assumption that the jury took such a view.  It is a view which is contrary to all the probabilities ... and it is contrary to the substance of the case presented to them by the learned judge in his summing up, and, as I have no doubt, by the Crown.  To set aside a verdict of such a description is an ordinary example of the proper use of the power conferred upon the Court of Criminal Appeal.  It is an exercise of the discretion of the court from whose order we ought not to grant special leave to appeal."

    In this passage Dixon J was making it plain that he saw the conclusion of the court below as defensible by reason of inconsistency in the verdicts.  To allow an appeal on that ground is to set aside the jury verdict as unreasonable; it is to say that, accepting the acquittals on the first two counts, and the jury's view of the evidence as reflected in the acquittals, as correct, the remaining evidence was insufficient to justify a conviction on the third count.  That is an application of the proposition referred to above, that where a criminal appeal succeeds on the ground that the evidence at the trial is insufficient to justify a conviction, it is against principle to order a new trial.  That point was made by Dixon J when he turned specifically to the new trial issue[51]:

    "After quashing the conviction, the Supreme Court went on to say that they would not order a new trial, and their Honours gave a number of reasons why they would not order a new trial.  Again, I think that it was for them to decide in the exercise of their discretion whether they would or would not order a new trial.  I myself most certainly would have come to the same conclusion, namely, that in the circumstances a new trial should not be granted.  I would have done so because it would necessitate the presentation by the Crown either of the case on which the accused had substantially been acquitted or of a new case which had not been made at the first trial, a case moreover which, I should have thought, was highly improbable and a desertion of the assumptions which the jury's previous verdict seems to require."

    By "the case on which the accused had substantially been acquitted" Dixon J meant what was called above "the initial case".  By the "new case" Dixon J meant the "logical possibilities" involving a "fifth actor in the drama" as the person responsible for the attempted abortion.  So viewed, R v Wilkes is remote from the present circumstances.  There is here no inconsistency of verdicts.  The accused here has not been acquitted by a jury, substantially or at all, in relation to any charge.  Neither the jury nor the Court of Criminal Appeal has made any factual finding in favour of the accused; the Court of Criminal Appeal has merely found errors in the summing up and legal errors about the foundational crime.  And the "new case" here is not one which depends on merely "logical possibilities" or "conceivable hypotheses" which postulate some new crime committed by a "fifth actor".  It cannot be said that the "new case" here is either highly improbable or one which deserts the assumptions which the jury's verdict requires.

    [50]R v Wilkes (1948) 77 CLR 511 at 517-518.

    [51]R v Wilkes (1948) 77 CLR 511 at 518.

64. A second case discussing the principle that the Crown should not be given an opportunity to make a new case which was not made at the first trial is King v The Queen[52].  In that case Dawson J (Gibbs CJ, Wilson and Brennan JJ concurring) stated that principle and said it would have applied in circumstances similar to those discussed by Dixon J in R v Wilkes involving inconsistent verdicts[53].  In King v The Queen, King and Matthews were charged with murdering King's wife.  King was convicted but Matthews was acquitted.  The Court of Criminal Appeal of New South Wales directed a new trial.  King sought special leave to appeal on the ground that an acquittal should have been ordered.  Dawson J said[54]:

    "If the verdict against King in this case was inconsistent with the verdict in favour of Matthews, then the Crown could properly succeed against King upon a retrial only by putting a new case.  It certainly ought not be allowed to proceed in any retrial upon a basis inconsistent with the jury's verdict of acquittal of Matthews."

    However, he concluded that the two verdicts given by the jury were not inconsistent, and the new trial order stood.  There is no difficulty arising from inconsistency of verdicts in the present application for special leave to appeal. 

    [52](1986) 161 CLR 423.

    [53](1986) 161 CLR 423 at 433.

    [54](1986) 161 CLR 423 at 433.

65. Jiminez v The Queen[55] is a third example of a case discussing this principle, with it being decided not to order a new trial because, to use the words of the only judge who relied on this point, McHugh J, "a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial."[56]  That was a case in which the prosecution contended at the trial that the accused could be convicted of causing death by driving in a manner dangerous to the public by reason of having gone to sleep.  On appeal the prosecution conceded that that approach was erroneous in law.  McHugh J concluded[57]:

    "Having regard to the concession which the Crown made in this Court, the only case which the Crown could put against the applicant was that he was guilty of driving in a manner dangerous to the public because he knew or ought to have known that there was a real risk that he would fall asleep.  But that case was never put to the jury."

    He then said[58]:

    "[T]he case for the Crown at the trial was so radically different from the only case which could be put on the concessions of the Crown in this Court that there has been no trial according to law."

    The latter case was a "new case".  Thus the initial case in Jiminez v The Queen turned on events after going to sleep, the other on events before.  The two cases dealt with events different in time, place and quality.  Plainly the difference between the two "cases" under consideration in Jiminez v The Queen is of a quite different kind from the two "cases" in the present application for special leave to appeal.

    [55](1992) 173 CLR 572.

    [56](1992) 173 CLR 572 at 590.

    [57](1992) 173 CLR 572 at 589.

    [58](1992) 173 CLR 572 at 590.

66. Finally, in Parker v The Queen[59] Dawson, Toohey and McHugh JJ refused to order a new trial to enable the prosecution to present a fresh case which would require "a substantial amendment to the indictment", including a change in the persons from whom the property allegedly was stolen.  Here no amendment to the indictment is called for. 

    [59](1997) 186 CLR 494 at 520.

148. I acknowledge the force of the foregoing submissions.  They were advanced with the usual skill and fairness of the Director of Public Prosecutions for New South Wales.  However, I must now state the considerations that lead me to reject them.  I do so acknowledging, as Latham CJ did in Wilkes[145], that decisions on such matters will sometimes involve relatively small matters of difference – nowhere more so than where the legal issue that is addressed is whether this Court should grant or refuse special leave to appeal to challenge an order of acquittal in a criminal case.

     [145](1948) 77 CLR 511 at 514-515.

     Special leave to appeal should be refused

149. Discretionary order:  no error: Because, under the Constitution, this Court's appellate jurisdiction is only enlivened by a demonstration of error, it is important to start with a recognition (which the applicant did not contest) that the Court of Criminal Appeal enjoyed the undoubted power and discretion to enter an order of acquittal in the respondent's appeal to it. Indeed, the premises upon which the prosecution argued its case in the intermediate court (now abandoned) ensured that the entry of an acquittal was strongly supportable, if not ultimately inevitable.

150. For this Court to interfere with an order of such a discretionary kind, the applicant must not only secure special leave to appeal, itself "exceptional" or "very exceptional" where an order of acquittal has been made by the State's most senior judges[146].  It must do so in a case where what is demonstrated is not, as such, that the Court of Criminal Appeal erred in deciding the appeal before it on the basis then propounded, but that, retrospectively, for new grounds submitted for the first time in this Court, error can be shown on quite a new and different footing. 

     [146]Wilkes (1948) 77 CLR 511 at 516-517; Benz (1989) 168 CLR 110 at 111‑112, 119‑120, 127‑128, 146. See also R v Lee (1950) 82 CLR 133 at 138; R v Glennon (1992) 173 CLR 592 at 595, 617, 618; R v Rogerson (1992) 174 CLR 268 at 289, 290-292, 311-312.

151. In Crampton v The Queen[147], following observations in the earlier decision in Gipp v The Queen[148], this Court held that such a new ground could be raised (and was not incompatible with the Court's constitutional function as an appellate court of error).  However, it also emphasised that special leave to appeal on such new ground would be granted only in "exceptional circumstances"[149].  In a sense, this is a manifestation of the deep‑rooted principle of the law against double jeopardy in its various forms[150].

     [147](2000) 206 CLR 161.

     [148](1998) 194 CLR 106 at 154-155 [138].

     [149](2000) 206 CLR 161 at 173-174 [20]-[21], 206-207 [122], 216‑217 [156], 219 [165]; cf Giannarelli v The Queen (1983) 154 CLR 212 at 221.

     [150]Everett (1994) 181 CLR 295 at 305. See also Pearce v The Queen (1998) 194 CLR 610 at 636 [90] citing Green v United States 355 US 184 at 187‑188 (1957); R v Tait and Bartley (1979) 24 ALR 473 at 476-477.

152. It follows that the case which the applicant now propounds must be thrice exceptional.  It seeks "special" leave which, without more, is exceptional.  It seeks to overturn a judicial order of acquittal, also exceptional.  And it seeks to do so by relying on a ground, and issues, not presented below, which this Court has said will only be permitted in "exceptional circumstances".  Procedurally and substantively, therefore, the applicant must establish a most exceptional case to succeed.  No argument was suggested by the applicant to the effect that insistence on such considerations of exceptionality was inconsistent with this Court's constitutional function or with the statutory provisions for the grant of special leave[151].  On the basis of the established authority of this Court, the foregoing statements of the law mark out the very exceptional relief that the applicant is seeking from the Court.

     [151]cf Rogerson (1992) 174 CLR 268 at 311-312.

153. Statutory power for the order made:  The powers granted to courts of criminal appeal vary, as between different jurisdictions in Australia.  Presumably for this reason, a disparity has been observed in the practice of different courts of criminal appeal in entering verdicts of acquittal upon a demonstration of error in the conduct of criminal trials[152].

     [152]The disparity is noted in Corns, "The discretion of a Court of Appeal to order a new trial or a verdict of acquittal", (2006) 30 Criminal Law Journal 343 at 355.  At common law no power existed to permit the setting aside by a court of a jury verdict of acquittal once entered:  see Everett (1994) 181 CLR 295 at 306.

154. In New South Wales, the language of s 8(1) of the Criminal Appeal Act appears to require the appellate court to reach an affirmative conclusion that a demonstrated miscarriage of justice "can be more adequately remedied by an order for a new trial than by any other order" before a retrial may be ordered (emphasis added).  This language affords some support to the remark of Griffith CJ in 1911, by reference to the then applicable Victorian statute, that the power to grant a new trial, following a successful criminal appeal resulting in the quashing of a conviction, was one to "be used with great caution" and not to "be granted as of course in every case"[153]. 

     [153]Peacock (1911) 13 CLR 619 at 641.

155. The terms of s 8(1) of the Criminal Appeal Act are doubtless also the source of the opinion expressed by Murphy J in King v The Queen, that where a criminal appeal succeeds, and a conviction is quashed, the prosecution bears the onus of demonstrating "that a new trial is the most appropriate remedy"[154].  However that may be, the discretion afforded by the legislation to the Court of Criminal Appeal of the Supreme Court of New South Wales is undoubtedly a very broad one[155]. 

     [154](1986) 161 CLR 423 at 426.

     [155]King (1986) 161 CLR 423 at 433 per Dawson J; cf Gerakiteys v The Queen (1984) 153 CLR 317 at 321.

156. According to conventional principles of appellate review, such a discretionary disposition is not one that this Court would disturb simply because its judges might have reached a different conclusion or because intuitive feelings suggest to them a different outcome in the particular case.  Here, the applicant has not identified any of the well-known bases for disturbance of the discretionary order of the Court of Criminal Appeal[156].  Nor has the applicant suggested that this Court was obliged in law or fact to exercise the discretion in favour of a retrial, still less for a party which did not now challenge the fact that the miscarriage of justice found on appeal was one which the prosecution's own conduct of the trial below had helped to bring about. 

     [156]As stated, for example, in House v The King (1936) 55 CLR 499 at 504‑505 per Dixon, Evatt and McTiernan JJ.

157. Unless, therefore, the retrospective force of the new way that the prosecution wishes now to present the charge of murder against the respondent is sufficient to warrant that course, the conventional approach in this Court to respect discretionary orders made within the power of the court below would ordinarily restrain this Court from granting special leave or disturbing the order made.

158. Rule forbidding a new case:  It is important, in approaching the present application, to appreciate the strength and persistence of this Court's repeated statements that the prosecution should not be given an opportunity to make a new case which it had not made at the first trial. 

159. One of the reasons why the Court of Criminal Appeal entered the verdict of acquittal in the present matter, and not an order for a new trial, was the fact that, as presented to it, the case for the prosecution could not be sustained at any such retrial[157]:

     "As the [respondent] could not be convicted of murder or manslaughter on the cases as formulated by the Crown both at trial and in this Court … it is not appropriate to order a new trial."

     There was no error in this conclusion, given its premises.  To the contrary, it complied with the repeated instruction of this Court.

     [157](2006) 162 A Crim R 152 at 165 [39].

160. Thus, in Jiminez v The Queen[158], McHugh J stated:

     "[T]he sufficiency of evidence to support the charge is not the only factor to be considered.  Other factors lead to the conclusion that, despite there being evidence which, if accepted, would make out a charge of culpable driving, a new trial should not be ordered.  First, as a general rule, a new trial should not be ordered to enable the Crown to make a new case at a second trial.  In the present case, a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial.  …  When all the circumstances are taken into account, the interests of justice do not require that the [accused] should be put to the expense, stress and inconvenience of a new trial so that the Crown can put a case which it did not put at the first trial.  The general rule that a new trial will not be ordered so that the Crown can put a different case at a second trial must prevail."

     [158](1992) 173 CLR 572 at 590-591 (footnote omitted).

161. It should be noted that the application of these remarks has not been confined to cases where, at any second trial, the prosecution might wish to adduce fresh evidence not presented at the first trial.  Whilst that possibility would certainly reinforce the reluctance to order a retrial, it is by no means essential.  What is decisive is the impermissible course of allowing the prosecution, having once failed, to enjoy a further opportunity to succeed on a different case, even within the same evidence.  Essentially, this is what the applicant is now seeking to do in a retrial of the respondent.

162. Rationale for the rule:  The reasons for the reluctance of appellate courts to permit the prosecution a second chance to make its accusation good, are bound up, as the Privy Council put it in Reid[159], with established features of the "common law system of criminal procedure".  Those features are numerous but four of them are immediately applicable.  They are all relevant to the determination that must now be made by this Court.  They are:

     .Under the Australian system of criminal justice the prosecution, whether the Crown or the State[160], is a special party.  By long‑established convention and practice, the prosecution acts as a model litigant, exhibiting fairness in prosecutorial decisions and thereby contributing, with the courts, to the observance of high standards of justice in criminal trials[161];

     .The accusatorial form of criminal prosecution, observed in Australia[162], requires the prosecution to establish the criminal accusations made by it against an accused and to make good the precise offence charged in the indictment.  Ordinarily, it is not for the accused to demonstrate innocence.  If the prosecution, having framed and presented the indictment and the evidence in the way that it selects, fails, it should not normally "have a second chance"[163];

     .Involved in such restrictions is "an aspect of the principle of double jeopardy"[164].  This requires that normally, where a conviction has been quashed as a result of some defect in the prosecution at trial and where to order a retrial would permit the prosecution to make a new or different case before another jury, that facility will be withheld.  Doing so protects the accused, safeguards the court's judicial processes and properly disciplines the prosecution; and

     .A further feature of the common law system is that litigants, as a general rule, are bound by the conduct of trials, as much in criminal as in civil litigation, by their legal representatives[165].  It is this consideration that in criminal appeals has put a limitation on the entitlement of accused persons to blame their trial counsel for what they claim, after conviction, were errors of law, fact, tactics or judgment resulting in a miscarriage of justice[166].  The corollary to this rule is that courts must be cautious in expanding the circumstances in which the prosecution will be permitted to blame its own original trial counsel for what is said to be a miscarriage of justice occasioned by a mistake by the prosecution in presenting the case in a defective way, resulting in an order of acquittal[167].

     [159][1980] AC 343 at 349-350.

     [160]In Western Australia, prosecutions are now brought in the name of the State.  See Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), Pt 8, with operation from 1 January 2004.

     [161]Lawless v The Queen (1979) 142 CLR 659 at 677‑678; Mallard (2005) 224 CLR 125 at 150‑151 [64]-[67].

     [162]RPS v The Queen (2000) 199 CLR 620 at 630 [22].

     [163]Parker (1997) 186 CLR 494 at 539.

     [164]Chekeri (2001) 122 A Crim R 422 at 434 [58].

     [165]See Rondel v Worsley [1969] 1 AC 191 at 241; R v Birks (1990) 19 NSWLR 677 at 683-684; Crampton (2000) 206 CLR 161 at 173 [18], 217-218 [159]-[162].

     [166]Crampton (2000) 206 CLR 161 at 218-219 [163] per Hayne J citing Giannarelli v Wraith (1988) 165 CLR 543 at 555-556. See also TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 79 ALJR 662; 214 ALR 1; Nudd v The Queen (2006) 80 ALJR 614; 225 ALR 161.

     [167]See joint reasons at [37].

163. Burden of criminal prosecution:  In Reid, the Privy Council acknowledged the special burden of repeated criminal prosecutions on an accused[168]:

     "[A]ny criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so."

     [168][1980] AC 343 at 350.

164. In this Court, similar, and still stronger, remarks have been made in many cases, particularly by Deane J.  Thus, in Davern v Messel[169], his Honour said[170]:

     "[W]hat is involved is essentially a choice between two competing points of view in support of each of which decisions and statements of authority can be called in aid.  Ultimately, I have come to the conclusion that the preferable view is that, for the purposes of the application of the relevant principle, an acquittal on the merits includes an acquittal by the order of an appellate court of competent jurisdiction on an appeal instituted by an accused against his conviction.  In reaching that conclusion, I am influenced by what I see as the rationale of the common law principle precluding appeals from acquittals and by the weight, as distinct from quantity, of authority.

     The 'universal maxim of the common law' that no person is to be brought into jeopardy more than once for the same offence … has been correctly described by Black J as 'one of the oldest ideas found in western civilization' with roots running deep into Greek and Roman times:  Bartkus v Illinois[171].  It is reflected in the patristic maxim that 'not even God judges twice for the same act'.  …  In its extended application, it operates to preclude at least some appeals from verdicts of acquittal.  The 'underlying idea' of the rule was said by Black J (Green v United States[172]) to be that 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence' thereby subjecting him to embarrassment, expense, continuing anxiety and insecurity and 'enhancing the possibility that even though innocent he may be found guilty'."

     [169](1984) 155 CLR 21.

     [170](1984) 155 CLR 21 at 67.

     [171]359 US 121 at 151-152 (1959).

     [172]355 US 184 at 187-188 (1957).

165. In his reasons in Davern, Deane J went on to describe the superior position typically enjoyed by the prosecution and the lasting burden which being prosecuted for a criminal offence represents for the accused[173]:

     "[I]n common law countries … both the prosecutor and the court in a criminal case are essentially emanations of the same entity.  Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the State.  It is the State that establishes and maintains the judicial system.  It is the State that brings an accused person before that judicial system on a charge of an offence against the law of the State.  It is in the State's favour that the overwhelming balance of power and resources will ordinarily lie.  If, in that context, a competent court in the State's own system rules that the State's charge should be dismissed and makes an order that the person against whom the State has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge.  Put another way, the citizen who is told by a competent court of the State that the State's proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court's decision."

     [173](1984) 155 CLR 21 at 67-68.

166. In R v Rogerson[174], Deane J returned to give these words special emphasis in the context of a prosecution application for special leave to appeal to this Court against an acquittal of an accused person:

     "Inevitably, an accused person whose acquittal by a Court of Criminal Appeal is singled out for a comparatively rare grant of special leave to appeal to this Court is likely to feel, with some justification, that he or she has been singled out for adverse treatment."[175]

     The proper place at which a criminal accusation should normally conclude is at the trial[176].  As Deane J pointed out in Jago v District Court (NSW)[177], "where an allegation of serious crime is involved, the burden of criminal proceedings first falls upon an accused at the time when [such an accusation is] threatened.  ...  [L]iberty is either destroyed by imprisonment or compromised by the restraints involved in release upon bail."  Indeed, it remains at peril until final disposition.  Deane J then remarked[178]:

     "In Mills v The Queen[179], Lamer J identified some of the other 'vexations and vicissitudes' of pending criminal proceedings, namely, 'stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction'.  If none but the guilty were accused of crime, the harshness of the burden would be alleviated by the consideration that the accused had brought it upon himself by his criminal conduct and subsequent denial of guilt and by the fact that account could be taken of pre-trial incarceration in the ultimate sentencing process.  In truth, of course, the innocent as well as the guilty are accused of crime and the notions of fairness and decency which sustain our society dictate that an accused is presumed to be innocent unless and until he is convicted.  For a person who is innocent of wrong-doing, the burden involves undeserved mental, social and often financial damage.  And that damage will not be erased by ultimate acquittal.  Life may be resumed but the mental, social and financial scars will ordinarily endure."

     [174](1992) 174 CLR 268 at 291.

     [175]See also Walton v Gardiner (1993) 177 CLR 378 at 396-398 and Gill v Walton (1991) 25 NSWLR 190 at 200, 207, 217.

     [176]Crampton (2000) 206 CLR 161 at 217 [157] per Hayne J.

     [177](1989) 168 CLR 23 at 55.

     [178](1989) 168 CLR 23 at 55.

     [179][1986] 1 SCR 863 at 919-920.

167. As the applicant pointed out, the respondent may not have been released to liberty following the Court of Criminal Appeal's order for his acquittal.  Yet following the order of the Court of Criminal Appeal he was entitled, under ordinary circumstances, to consider that his ordeal on the charge of murdering the deceased police officer was at an end.  Something truly "exceptional" is required for this Court now to revive it.

168. Tactical decisions and even-handedness:  A particular consequence of the "common law system of criminal procedure", and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial.  This reluctance has a very practical foundation.  Such decisions are made in trials on countless occasions every day.  If they were susceptible to being reopened on appeal, few forensic choices could be treated as final.  Trials, and appeals, might never conclude.  For this reason, in very many cases, this Court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons[180].

     [180]Recent examples include Stanoevski (2001) 202 CLR 115 at 121‑122 [21]; TKWJ (2002) 212 CLR 124 at 128 [8], 130‑131 [16]‑[17] per Gleeson CJ; cf at 132‑135 [24]‑[33], 137‑138 [43], 139 [49] per Gaudron J, 157 [102]‑[104] per Hayne J; cf my reasons in Gipp (1998) 194 CLR 106 at 151‑155 [130]‑[138] and Suresh v The Queen (1998) 72 ALJR 769 at 780 [56]‑[58]; 153 ALR 145 at 160-161. See also Birks (1990) 19 NSWLR 677 at 686.

169. There is no reason of principle why the same rule, holding the accused to the tactical decisions of legal representatives, should not apply with equal force to tactical decisions made at trial by prosecuting counsel[181].  Indeed, because defence counsel more frequently have less experience, expertise and resources, any principle of equality would require that the rule holding a party to the tactical choices made by trial representatives should apply with even greater rigour in the case of a prosecutor.  For the present application, this Court should apply the same principle.

     [181]See joint reasons at [37].

170. There can be no doubt that, in this case, the framing of the indictment and the identification of the initial "foundational offence", propounded before the jury by the prosecutor, were carefully considered prosecutorial decisions.  Inferentially, they were taken in a way that it was believed at the time best advanced the prosecution case against the respondent[182].  They were tactical decisions.  Many such decisions are "technical"[183].  The prosecution should be held to them.  If the prosecution is not, it will give rise to a justifiable conclusion that this Court does not hold the scales evenly but applies a different standard and a different rule to accused persons and their legal representatives from that which it applies to the prosecution.  This is not a course that I would adopt.

     [182]See above these reasons at [128]-[134].

     [183]cf majority reasons at [51]. See also joint reasons at [10].

171. The rule holding parties to their trial tactics applies to a decision to alter course during the trial.  In the present case such a decision was reached at the conclusion of the evidence, following the dialogue already described between the prosecutor and the trial judge[184].  A study of the transcript demonstrates that the prosecutor specifically acknowledged that he embraced the suggestion of the trial judge on the basis of what he described as the "KISS principle … that is keeping it simple"[185]. 

     [184]See above these reasons at [129]-[131].

     [185]"KISS" for "Keep It Simple, Stupid", an admonition popularly ascribed to the urging of the wife of United States presidential candidate Hubert Humphrey whose failure to observe it deprived him of success in the election.

172. To reinforce the conclusion that this represented a conscious tactical decision on the part of the prosecutor, the transcript indicates that the prosecutor considered the matter over the luncheon adjournment and then still further overnight. It was only then that the alternative count based on s 33B of the Crimes Act was withdrawn and the prosecutor's first decision to change the expression of the foundational offence for "joint criminal enterprise" was made.  In the course of his closing address on the following day, the prosecutor re‑expressed the prosecution case to assert a joint criminal enterprise involving the respondent of "escaping from lawful apprehension".

173. In this case, it cannot, therefore, be denied that it was for the tactical decision of keeping the prosecution case "simple" that the prosecutor elected to abandon the case as originally presented, on which he had earlier relied for the respondent's conviction.  Instead, the prosecutor repeatedly told the jury that the prosecution case was that there was a joint criminal enterprise to escape and that the respondent was liable for murder as a result of an incident arising from that precise venture.  It is quite wrong to ascribe to the trial judge the primary responsibility for what occurred[186].  He made a suggestion.  But it was embraced and endorsed by the prosecutor after due deliberation.

     [186]cf majority reasons at [51].

174. In these circumstances, the summary in the reasons of the Court of Criminal Appeal concerning the conduct of trial counsel for the applicant was accurate.  So was that Court's description of the still further changes to the formulation of the "foundational offence" by the time the case reached the appeal hearing[187].  Whatever doubts might occasionally arise as to whether the decision of trial counsel for an accused person was truly made for "tactical reasons" (or was simply an ignorant, inexperienced or incompetent choice with which the accused is thereafter to be burdened by the operation of a convenient legal rule), there can be absolutely no doubt in the present proceedings of the conscious election of the prosecutor at the respondent's trial and appeal.  An experienced advocate took considered and deliberate decisions.  At trial, he did so for the self‑proclaimed tactical reason which he graphically described as motivated by "KISS".

     [187](2006) 162 A Crim R 152 at 160-161 [20]-[22], 162 [27].

175. Consistently with this Court's repeated insistence (in much less compelling and considered circumstances) that accused persons are bound by tactical decisions made by their legal representatives, so must be the prosecution with its larger body of experience, expertise and resources.  Any other approach would be lacking in the even-handedness that is the precious hallmark of equal justice as between the prosecution and the accused before our courts.

176. In many courts, of different legal traditions, the prosecution is a special branch of government which enjoys an enhanced professional status akin to the judiciary.  In such countries (as formerly in some of the old police courts in some parts of Australia) the prosecutor has a special and elevated seat in the court, higher than the ordinary Bar table and closer to the judicial bench.  In Australia today, the prosecutor and the representatives of the accused appear at the same table and their equality before the law is enforced by the courts.  We should not now waver and apply a different and unequal rule as to tactical decisions made by a prosecutor from that which we regularly apply to tactical decisions made by the legal representatives of the accused.  Every time in the future that prosecutors argue that the accused cannot rely on a persuasive submission because of tactical decisions taken by their trial counsel, appellate courts will be obliged to remember this case.

177. Other considerations:  There are other relevant considerations mentioned during the argument that can be noted in passing. 

178. The applicant complained that the Court of Criminal Appeal's decision acquitted the respondent of all culpability for the shooting of the deceased police officer and precluded further proceedings in this respect against the respondent. However, it was the prosecution that, at trial, had abandoned the alternative charge against the respondent under s 33B of the Crimes Act.  This resulted in the respondent's being convicted of the firearm offence for which he was sentenced to five years imprisonment.  For his part, the actual perpetrator of the shooting of the police officer, Mr Penisini, pleaded guilty to murder.  In consequence, he received a most substantial sentence of imprisonment for that most grievous crime.  The respondent is still serving his sentence for the firearm offence, as well as for other unrelated offences[188].  He did not walk away scot-free from his involvement.  Nor did the other two offenders. 

     [188]See above at [84]-[85].

179. When, in all of the foregoing circumstances, I ask myself whether the triple requirement of an exceptional case is established to warrant this Court's granting special leave to the applicant to permit the prosecution to re-express its case in a way not advanced at trial or before the Court of Criminal Appeal in order to subject the respondent, although acquitted, to a new trial for murder on a different basis, I reach the conclusion that the request should fail[189].

     [189]See also (2006) 162 A Crim R 152 at 165 [39].

180. I arrive at this conclusion without enthusiasm.  I say this because it is at least arguable that, had the prosecution at the original trial of the respondent formulated its theory of the case as it now propounds it, and presented that theory clearly and simply throughout, the respondent might have been convicted of murder of the deceased police officer on the basis of liability as a secondary offender for an extended common purpose with the actual perpetrator of the fatal shots, Mr Penisini. 

181. Nevertheless, that was not the way the prosecution acted, either at trial or in the intermediate court.  Consistently with long‑established legal principles, often repeated and frequently applied, the prosecution should not at such a late stage have a new and different opportunity to overturn the respondent's acquittal because it has belatedly arrived at a new and different case which it now wants to present before a new and different jury. 

182. The impartial application of basic legal principles is the more important in criminal appeals because the circumstances in which such principles are invoked sometimes make it painful to apply the principles with judicial dispassion and complete even-handedness.  Yet these are the features of the rule of law that is the bedrock of Australia's constitutional government and the best assurance of personal liberties[190].  It is the duty of the courts, including this Court, to give them effect.

     [190]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381 [89]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513 [103].

     Order

183. The application for special leave to appeal should be refused.