Protection against double jeopardy can be given by statute and by common law. Statutory protection can exist in the form of provisions for pleas of previous conviction or previous acquittal, and by a right not to be tried or punished for an offence for which a final conviction or acquittal has been entered. Common law protection can take the form of a stay of proceedings to prevent abuse of process, or in the sentencing process by the avoidance of double punishment, or in the plea of autrefois convict to the extent that it has not been replaced by legislation.
Statutory rules concerning the plea of previous conviction can be difficult to interpret and apply. Such difficulties in New Zealand law are surveyed in Mitchell v Police [2023] NZSC 104 (11 August 2023). The relevant provision here is s 46(1)(b) of the Criminal Procedure Act 2011.
The issue is quite simple, as is the Court’s application of its interpretation of the legislation: [2], [68]-[69]. Arriving at the correct interpretation of the legislation was not entirely straightforward, and the Court noted at [63] that there is “some opacity” in the drafting of s 46(1). The phrase “arising from the same facts” marks a change from the previous legislative focus on the elements of the charges, in favour of placing the facts as central to the inquiry. And here, it is “substantial” similarity that is required: in s 46(1)(b), “those facts” means substantially those facts, and what is required is substantial similarity in the acts that make the charges punishable.
So, Mr Mitchell’s charges referred to common acts (driving, with some alcohol in his breath: [67]) and to facts that made each charge punishable (having a breath alcohol level in excess of the legal limit, and having any alcohol in his system in breach of his zero alcohol licence). Those punishable facts were different for each charge, and there was nothing unlawful in his being convicted on each [69].
Substantial sameness does not include single acts that have several victims ([64] and footnote 90). But it probably includes facts which are accompanied by different mental elements ([64] footnote 89, but Ellen France J had some reservations about this [78]).
Section 46(1) has changed the law by reforming the very narrow approach to the availability of the plea of previous conviction that some authorities had applied: [62], [46]. This means that, for example, the following charges (in Hickson, referred to at [46]) would now be held to arise from substantially the same facts: (a) selling liquor in licensed premises when such premises were directed to be closed; (b) exposing liquor for sale in such premises during such a period; and (c) opening such premises for the sale of liquor during such a period.
The Court in Mitchell uses that example to illustrate the former law’s rejection of the plea of previous conviction where a “subtle difference” between the elements of the offences could be discerned [45]. Again, referring at [47] to Brightwell, the offences of presenting a firearm without lawful and sufficient purpose, and by (substantially) the same act threatening to do grievous bodily harm, were a further illustration of the subtle difference that would no longer be recognised. Pursuant to Mitchell, the approach would now be to ask whether the punishable act for each offence is substantially the same, the answer for Hickson and Brightwell being yes it was in those cases.
Ellen France J, concurring but for slightly different reasons, thought it is questionable whether s 46 places a controlling role upon the facts [76]. The point here is that the elements of the offences will “in most cases” (see footnote [94]) assist in defining the necessary facts for the purposes of s 46. She also had reservations about the use of the concept of common punishable act [77].
And, I add for law students to consider: When are the punishable acts “substantially” the same for each offence? If the difference between exposing liquor for sale and selling that liquor is too subtle to exclude the plea of previous conviction (Hickson as reviewed in Mitchell), why isn't the difference between having alcohol in the breath when driving and having excess alcohol in the breath on that occasion too subtle to exclude the plea? Will the rejection of the search for subtle differences in the elements of the offences lead to a search for subtle differences in the punishable acts for each, as grounds for rejecting the plea of previous conviction? And would that be objectionable? Has the precedent value of future cases on this topic been reduced by the mandated emphasis on facts, and, if so, is that consistent with the rule of law?
