Disputes about relevance and fairness can arise over whether an accused should be able to inform the jury that he was acquitted at an earlier trial if the prosecution now seeks to use some of the evidence from that earlier trial in its present case. This problem can arise even if the two trials concern different allegations.
Yesterday, the High Court of Australia considered an example of this in Washer v Western Australia [2007] HCA 48 (8 November 2007). I say “an example” because there is no general rule that applies: in some cases an accused will be allowed to insist that the jury be told that he was acquitted at an earlier trial when some evidence adduced at it is now produced by the prosecution. In other cases, it will not be appropriate to inform the jury of the earlier verdict. The critical point is, what is the relevance of the earlier acquittal? What fact in issue in the present trial does the earlier acquittal make more probable?
Sometimes, the reason for the earlier acquittal will be clear. This could occur if that trial involved a dispute over one fact, as long as the only reason for the verdict must have been a reasonable doubt as to proof of that fact. But it is likely to more frequently to be the case that the reasons for the earlier acquittal could be various, as occurred in Washer. It will be difficult to establish relevance in the present case if there could be more than one reason for the earlier acquittal.
In Washer, the prosecution adduced evidence that the accused had previously been dealing in methylamphetamine (as it is called in the relevant jurisdiction), in order to prove that he was, on this present occasion, also intending to deal in that drug. The sole relevance of this evidence was to establish his intent. However, that evidence had been presented at a trial where the accused was alleged to have conspired with two others (not involved in the present trial) to sell or supply the drug over a period extending over a year, and he was acquitted on that charge. The present charge was conspiring to possess, for sale or supply, another amount of the drug, over a period of two weeks. These two weeks were in the early part of the year with which the former trial had been concerned.
There could be a number of reasons for the earlier acquittal. These were pointed out in the joint judgment of the majority, Gleeson CJ, Heydon and Crennan JJ (Hayne J concurring) at para 28:
“It is impossible to know why the jury at the earlier trial acquitted the appellant of conspiring with [the other two] to supply drugs to third parties. They may have doubted that the conversations between the appellant and [the other two] related to drugs. They may have doubted that the conversations showed more than that the appellant was in the business of dealing in drugs on his own account. They may have concluded positively that the appellant was a legitimate businessman. It is not possible to tell; and it could not be suggested that the jury at the [present] trial … should have been invited to re-examine the conduct of the earlier trial in order to reach their own conclusion about what the jury at the earlier trial must have decided.”
And,
“41 … Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement (not related to the [present matter]) with [the other two], that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the [present] prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told. If the jury had been told that the earlier acquittal established that the appellant was not a drug dealer, or that he was not talking about drugs in his conversations with [the other two], that would have been untrue. If the trial judge had told the jury they must give the appellant the full benefit of his acquittal without further explanation, that would have been mischievous.”
Kirby J dissented in his reasons, but agreed in the dismissal of the appeal as a result of applying the proviso. Kirby J held that fairness required the accused, in the particular circumstances of the present matter, to be permitted to inform the jury of the earlier acquittal. The risk of impugning the earlier verdict was significant (para 91):
“ … If the conversations with [the other two] were designed to prove that Mr Washer "is not talking about ... anything innocent", was the appellant not entitled to have the second jury informed that, notwithstanding any conclusion that they might otherwise reach about such evidence, an earlier jury had, in fact, found the appellant not guilty of the offence with which he was then charged? And that this jury finding was to be treated as a finding that he was innocent and given full effect by the second jury?”
Although Kirby J found there to have been an error of law in the trial, namely the ruling that the jury should not be told of the earlier acquittal, this did not amount to a substantial miscarriage of justice in the present circumstances, because the other evidence of intention here was strong. Accordingly, he applied the proviso, upheld the conviction, and, with the other judges, dismissed the appeal.
The result is that impugning the earlier acquittal does not occur if the acquittal might be inconsistent with the use now made of the evidence; what is required for impugning is that there must be such an inconsistency.
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