AJS v The Queen [2007] HCA 27

AJS v The Queen [2007] HCA 27

Upon quashing the jury's conviction for incest as unreasonable for want of sufficient evidence, the Court of Appeal should have entered a verdict and judgment of acquittal for incest and ordered a new trial limited to the unresolved statutory alternative of indecent act with a child under sixteen, as permitted by the combined operation of ss 421, 425 and 568(2) of the Crimes Act 1958 (Vic); doing so does not preclude trial on the alternative charge nor engage double jeopardy principles.

Parties
Appellant: AJS; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
13 June 2007
Procedural Posture
Criminal Appeal / Appeal to High Court of Australia From Court of Appeal of the Supreme Court of Victoria
Outcome
Appeal allowed.
Legal Topics
Verdicts, Appellate Jurisdiction, Statutory Alternative Verdicts, Double Jeopardy, Evidence, Orders on Appeal
Criminal Law Verdicts Appellate Jurisdiction Statutory Alternative Verdicts Double Jeopardy Evidence Orders on Appeal

Case Brief

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Parties

AJS

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Appeal to High Court of Australia From Court of Appeal of the Supreme Court of Victoria

Legal Issues

  1. 1 Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest.
  2. 2 Whether a new trial may be ordered on a statutory alternative charge not considered at the first trial.
  3. 3 Whether entering a verdict of acquittal on incest precludes a new trial on the alternative indecent act charge.

Ratio Decidendi

Upon quashing the jury's conviction for incest as unreasonable for want of sufficient evidence, the Court of Appeal should have entered a verdict and judgment of acquittal for incest and ordered a new trial limited to the unresolved statutory alternative of indecent act with a child under sixteen, as permitted by the combined operation of ss 421, 425 and 568(2) of the Crimes Act 1958 (Vic); doing so does not preclude trial on the alternative charge nor engage double jeopardy principles.

Court Disposition

Appeal allowed.

Orders

  • Paragraph 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 7 December 2005 set aside.
  • In its place, judgment and verdict of acquittal entered in respect of the charge of incest contrary to s 44(1) of the Crimes Act 1958 (Vic).