Connelly v DPP

JurisdictionEngland & Wales
CourtCourt of Criminal Appeal
[COURT OF CRIMINAL APPEAL.] REGINA v. CONNELLY. 1963 Sept. 24, 25, 26, 27, 30. Edmund Davies, Lawton and Lyell JJ.

Nemo bis vexare debet - Acquittal by Court of Criminal Appeal - Effect - Indictments for murder and robbery - Trial on murder charge alone - Two defences including alibi - Conviction of non-capital murder - Appeal raising issue on alibi only - Murder conviction quashed on ground of misdirection to jury on alibi issue - Whether tantamount to finding on issue of alibi - Trial on second indictment for robbery - Whether barred by plea of autrefois acquit - “Issue estoppel” - Whether available in English criminal law - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4 (1) (2). - Crime - Evidence - Previous proceedings - Acquittal on murder charge - Trial for robbery - Oral statements attributed to defendant admitted at first trial admissible at second - Whether fact of acquittal admissible in rebuttal - Acquittal by Court of Criminal Appeal. - Crime - Practice - Indictment - Discretion - Judge of opinion that prosecution ought not to proceed - Whether discretion to prevent trial. - Crime - Court of Criminal Appeal - Acquittal, by - Effect - Murder conviction quashed on ground of misdirection to jury on one issue - Whether tantamount to finding of fact on that issue - Trial on further indictment for robbery raising same issue - Whether barred - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4. - Estoppel - Per rem judicatam - Criminal proceedings - “Issue estoppel” - Ingredients - Whether available as plea in bar.

The appellant, C., and three other men were charged on two indictments with murder and robbery with aggravation, arising out of an office robbery in November, 1962, during which an employee was killed. In accordance with practice, the indictment for murder was tried alone, C.'s defence being (a) alibi, and (b) if present, no intent to murder. The jury returned a general verdict of guilty against all four men. At the conclusion of the trial, the judge directed that the indictment for robbery should remain on the file marked “Not to be proceeded with without leave of this court or of the Court of Criminal Appeal.” C. appealed on some 15 grounds, but the sole issue considered by the Court of Criminal Appeal was whether the evidence and the direction to the jury on the question whether or not C. had been present at the scene of the crime were satisfactory. The court concluded that on that issue the jury had been so misdirected that the conviction must be quashed and directed a verdict of acquittal to be entered, as required by section 4 of the Criminal Appeal Act, 1907F1; but the court thereafter granted leave to the Crown to proceed with the prosecution of C. on the second indictment for robbery, and he was detained in custody to await trial. One month later, the matter came before John Stephenson J. when the plea of autrefois acquit was raised on C.'s behalf; the judge directed a jury empanelled to try that issue that the plea had not been established, and a verdict to that effect was returned. The judge was also asked to exercise his discretion to prevent the Crown from proceeding on the second indictment, but held that the only discretion which a judge had in such circumstances was to express an opinion; and he expressed the opinion that it would be wrong for the Crown to proceed. Despite that opinion, the Crown continued with the prosecution; C. was again remanded in custody; and a month later was tried before Nield J. and a jury, convicted on the robbery indictment, and sentenced to 15 years' imprisonment: On appeal against that conviction and sentence:

Held, dismissing the appeal against conviction, (1) that the Court of Criminal Appeal, in directing an acquittal on the murder appeal, had not made any specific finding, express or implied, in the appellant's favour, on the issue of his presence at the crime, but had decided only that by reason of the trial judge's misdirection to the jury on that issue there had been a substantial miscarriage of justice and that, therefore, in compliance with section 4 of the Criminal Appeal Act, 1907, a statutory acquittal must be directed. It followed that as the statutory acquittal on the murder conviction was not an acquittal on any essential question arising also on the indictment for robbery proceedings, the appellant could not rely on the plea of autrefois acquit to bar the proceedings for robbery (post, p. 848).

Cohen v. Bateman (1909) 2 Cr.App.R. 197, C.C.A. and Reg. v. Salvi (1857) 10 Cox C.C. 481n. considered.

Per curiam. The authorities show that the doctrine of autrefois acquit as a plea in bar to subsequent proceedings is not limited to the two cases set out under that heading in Archbold's Criminal Pleading, Evidence and Practice (35th ed. (1962) para. 436), but may extend to cover (a) any offence of which the defendant could properly have been convicted on the trial on the first indictment, and also (b) an offence having the same essential ingredients as that on which he was previously acquitted (post, p. 848).

Rex v. Norton [1910] 2 K.B. 496; 26 T.L.R. 550; 5 Cr.App.R. 65, 197, C.C.A. applied.

Rex v. Barron [1914] 2 K.B. 570; 30 T.L.R. 422, C.C.A.; and Rex v. Kupferberg (1918) 34 T.L.R. 587; 13 Cr.App.R. 166, C.C.A. considered.

(2) That even if the plea of “issue estoppel” were available in English criminal proceedings, the appellant could not rely on it, for no issue between him and the Crown had been distinctly raised and inevitably decided in the prior proceedings such as to bar trial on the second indictment for robbery which raised the same issue (post, pp. 850, 851).

Per curiam. Although it is not necessary to decide in this case whether the plea in bar of “issue estoppel” is available in English criminal proceedings, it is available in English civil proceedings, and has been so developed as to be available in criminal proceedings in the common law jurisdictions of the Commonwealth of Australia and the United States of America; and it would be deplorable if English law lagged behind in this matter merely because of a strict rule of pleading (post, p. 850).

Reg. v. Ollis [1900] 2 Q.B. 758; 16 T.L.R. 477; 19 Cox C.C. 554; Reg. v. King [1897] 1 Q.B. 214; 13 T.L.R. 27; 18 Cox C.C. 447; Reg. v. Clift (1952) 52 S.R.(N.S.W.) 213; Brown v. Robinson (1960) S.R.(N.S.W.) 297; Mraz v. The Queen (No. 2) (1956) 96 C.L.R. 62; and Harris v. State of Georgia (1941) 17 South Eastern Reporter 563 considered.

(3) That, although the court would interfere to prevent inconsistent verdicts, the appellant's conviction on the robbery indictment was not inconsistent with his acquittal on the murder charge, for the statutory acquittal was not a finding that he had not been proved to have been present at the scene of the crime (post, p. 851).

Rex v. Cooper and Compton (1947) 63 T.L.R. 561; [1947] 2 All E.R. 701; 32 Cr.App.R. 102, C.C.A., distinguished.

(4) That the judge who had tried the issue as to autrefois acquit had correctly held that, despite his opinion that it would be wrong to proceed, he had no discretion to prevent the trial on the second indictment, for a judge is not entitled to refuse the trial of any indictment merely because he thinks that it would be unfair or unjust for a trial to proceed. He can stop proceedings on indictment only in accordance with established principles (post, p. 852).

Reg. v. Middlesex Quarter Sessions (Chairman), Ex parte Director of Public Prosecutions [1952] 2 Q.B. 758; [1952] 2 T.L.R. 135; [1952] 2 All E.R. 312, D.C.; and Reg. v. London (County) Quarter Sessions, Ex parte Downes [1954] 1 Q.B. 1; [1953] 3 W.L.R. 586; 36 Cr.App.R. 188, D.C. followed.

(5) That oral statements attributed to the appellant and used on the first trial were admissible as evidence for the prosecution relevant to the issue of alibi on the second trial, and the trial judge, having admitted them, had correctly refused to allow the appellant to rely on his acquittal on the murder charge and the issue on which he had been acquitted to rebut that evidence (post, pp. 852, 853).

Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458; 66 T.L.R. (Pt. 2) 254, P.C. distinguished.

(6) But, allowing the appeal against sentence, that in view of the appellant's acquittal on the murder charge, the court must, as a matter of law, put out of its mind the fact that during the armed robbery a man had been killed by one of the robbers, and as there was no evidence that the appellant had intended to injure, the sentence passed was in all the circumstances excessive and ought to be reduced from fifteen to ten years.

APPEAL against conviction and sentence.

In February, 1963, four men — Thatcher, Hilton, Kelly, and the present appellant, Charles Connelly — were charged before Roskill J. and a jury with the murder of an employee of the Royal Arsenal Co-operative Society in the course of robbing their depot at Mitcham on the night of November 17, 1962. At the trial, Thatcher, Hilton and Connelly denied that they were present at the scene of the crime, and Connelly further claimed, as an alternative defence, that if he had been present, the evidence did not establish that he had the felonious intent necessary to support a conviction for murder. Kelly admitted that he was at the scene of the crime and that he was a robber, but he denied that he was a murderer. The jury convicted Thatcher of capital murder and the other three men, including Connelly, of non-capital murder.

There had originally been against all four men not only the indictment for murder but also a second indictment for robbery with aggravation. In accordance with the rule of practice, the indictment for murder was tried alone; but at the conclusion of the trial, after the four men had been convicted and sentenced, Roskill J. ordered that the second indictment should remain on the file, marked “Not to be proceeded with without the leave of this court or of the Court of...

To continue reading

Request your trial
16 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT