Judicial Committee of the Privy Council
| Author | J A Coutts |
| DOI | 10.1177/002201839305700207 |
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
THE
MEANING OF AUTREFOIS
CONVICf
Richards v R
The
appellant's reliance on the doctrine of double jeopardy and his plea
of autrefois convict in Richards v R [1992] 3 WLR 928; [1992] 4 All
ER
807 raised the question of what is to be proved in order to establish the
earlier 'conviction' before it can found a plea in bar. The appellant was
charged with murder. Both counsel invited the judge to see them in his
room and, on his agreeing, they indicated that the defendant was willing
to plead to manslaughter and that the prosecution would accept that plea.
The
judge agreed and this was announced in court, whereupon the
defendant's counsel ('ironically, in the light of later events', as Lord Bridge
remarked) obtained an adjournment in order to call character evidence in
mitigation. This interval was utilised by the
Dl'P
of Jamaica, who is
empowered by statute to discontinue any prosecution at any time before
judgment, and who on this occasion considered that the plea of guilty of
manslaughter ought not to have been accepted, to decide that the
proceedings should be discontinued so that the defendant might be charged
with murder on a fresh indictment. At the adjourned hearing, therefore,
the
OPP
entered a nolle prosequi, in the exercise of his statutory power,
and the fresh indictment charging murder was preferred, with a result that
might be thought to vindicate the OPP's judgment, namely that the
defendant was convicted and sentenced to death. His appeal to the Court
of Appeal was on the ground that the English common law doctrine of
autrefois convict was enshrined in s 20(8) of the Jamaican Constitution
and that his second trial and conviction and sentence were in breach of his
constitutional rights. That appeal was dismissed and the further appeal to
the Privy Council relied exclusively on the submission that the court's
rejection of his claim to rely on the plea in bar was erroneous, for it was
admitted that the constitution enshrined the common law doctrine and (on
the
other
side) that the facts on which the second conviction was founded
could not be questioned.
The net question raised before the Board was whether the plea can be
sustained by evidence of anything less than that the offence with which
the defendant stands charged had already been the subject of a 'complete
adjudication' against him by a court of competent jurisdiction. The question
meant, in particular: is it necessary to establish not only the determination
of his guilt, by a decision of the court or by a jury or by the entry of his
plea of guilty, but also the final disposal of the case bythe court by passing
sentence or making some other ordersuch as an order of absolute discharge
(see per Lord Bridge, at p 931E). The appellant submitted that all that is
necessary is that he should establish that the court before whom he
appeared on the earlier occasion decided his guilt.
If
this were so, then
178
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