Double Jeopardy and Successive Prosecutions Based on the Same Prohibited Conduct: Equivalence of Approaches to Determining the Same Offence Dilemma in Comparative Perspective

Abstract

Post-acquittal retrials for substantially the same offence are possible in jurisdictions that have provided statutory modifications to the common law double jeopardy principle. The pleas in bar of prosecution, autrefois acquit (previously acquitted) and autrefois convict (previously convicted), are predicated on a final verdict of acquittal or conviction by a court of competent criminal jurisdiction for substantially the same offence. Differentiating similarities between the increasing volume of overlapping offences is the most litigated aspect of the double jeopardy principle. Seminal common law jurisdictions have adopted variations of the same elements approach that examines whether two or more offences arising out of the same prohibited conduct are the same based on an assessment of whether there is an element in one offence not in the comparable offence. Through doctrinal analysis of superior court jurisprudence in the Unites States, England and Wales, Canada, Australia and New Zealand, this article evaluates judicial formulations for determining the sameness of offences in comparative perspective. While the analysis is intrinsic to each jurisdiction, judicial formulations may nonetheless shed light on similar issues coming before courts of criminal justice in cognate jurisdictions.

Introduction

Determining the sameness of offences is fundamental to and is the most litigated aspect of the common law double jeopardy principle, which proscribes successive prosecutions and multiple punishments for substantially the same offence. This is predicated on a final judgement on the merits by a court of competent criminal jurisdiction. Superior court jurisprudence emanating from seminal common law jurisdictions suggests that judicial determinations of the same offence, or prohibited conduct, is predicated on whether there are additional and distinguishing elements between comparable offences. In this regard, judicial assessments must strike a fair and proportionate balance between the public interest in ensuring that all relevant evidence is considered by the court (jury), while concomitantly safeguarding the same accused from having to rebut the same factual allegations in successive prosecutions.

Through doctrinal analysis of superior court jurisprudence in the United States, England and Wales, Canada, Australia and New Zealand, the purpose of this article is to evaluate judicial interpretative analyses for determining the identity of offences, and differentiating between offences, in comparative perspective through the lens of the double jeopardy principle. The various approaches for distinguishing between offences are not generally unique to each jurisdiction and it is useful to examine how cognate jurisdictions resolve the problematic issue of determining sameness of offences. While the analysis provided and solutions propounded through judicial formulations hold their own intrinsic values, they may shed light on similar matters that arise in cognate jurisdictions.

Double Jeopardy and the Same Offence Dilemma

Substantive criminal law definitions, which vary considerably between national criminal justice systems, are pivotal to the construction of criminal liability based on prohibited conduct (acts or omissions) and elements of offences. ¹ The significant increase in the volume of statutory offences in recent decades compounds procedural dilemmas wherein the definition, scope and application of offences will undoubtedly determine the seriousness of the prohibited conduct for which the accused is prosecuted, acquitted, or convicted and punished. Moreover, the proliferation of overlapping and related statutory offences conceivably empowers prosecutors to indict accused persons for several offences based on the same prohibited conduct. ²

The prohibition on double jeopardy is a fundamental principle of criminal law and procedure in criminal justice systems concerned with safeguarding fundamental rights. In common law adversarial jurisdictions the prohibition is expressed by the pleas in bar of prosecution autrefois acquit (previously acquitted) and autrefois convict (previously convicted) that ensures legal certainty and finality in criminal proceedings. ³ The prohibition is founded on the broader principle of res judicata and the pleas in bar may be available to the accused where successive prosecutions are based on the same offence or prohibited conduct. ⁴ The pleas in bar are not applicable where the original trial court lacked appropriate jurisdiction such as the summary prosecution of an indictable offence, ⁵ invalid procedures ⁶ or coram non judice. Trial judges will normally rule as a preliminary issue whether the pleas in bar are substantiated, and if the court so finds, the prosecution should be estopped.

The complexity of the principle was aptly described as ‘a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator’, ⁷ which is evident in procedural issues including the attachment of jeopardy to the original trial, verdict finality and instances where the former prosecution has not proceeded to verdict such as where the prosecution enter a nolle prosequi, or a mistrial has been declared. The most contentious issue of the prohibition is determining whether successive prosecutions, or multiple punishments, ⁸ are for the substantially same offence. The dilemma is compounded where prohibited conduct might constitute multiple statutory or common law offences.

In jurisdictions that have modified the common law double jeopardy principle based on prescribed statutory exceptions, post-acquittal retrials are possible for substantially the same offence based on new and compelling evidence, or tainted acquittal exceptions. ⁹ Statutory exceptions to the common law principle and consequential same offence dilemma have increased the propensity for post-acquittal retrials. ¹⁰ The various approaches to determining the sameness of offences is key to whether the autrefois pleas in bar are applicable, and the superior courts in seminal common law jurisdictions have grappled with this problematic issue, which is the most litigated aspect of the double jeopardy principle.

The United States

The common law double jeopardy principle has been enshrined as a constitutional right by virtue of the Fifth Amendment to the Constitution of the United States and therefore accused persons have been afforded a higher level of protection in that jurisdiction. ¹¹ Voluminous jurisprudence emanating from the Supreme Court underscores the complexity of judicial determinations on whether offences are substantially the same. Judicial formulations have fluctuated between the ‘same evidence’, ‘same elements’, ‘same conduct’ and ‘same transaction’ approaches, neither of which effectively prevents the prosecution from reintroducing the same evidence (based on the same facts) in successive prosecutions.

Same Elements (Evidence)

The same evidence approach examines whether evidence adduced in successive prosecutions would sustain a conviction under the first indictment, and then whether the same evidence would support a conviction in both prosecutions. If the evidence required to support a conviction for an offence also would have supported a conviction for a separate and distinct offence, then double jeopardy exists.

In Blockburger v United States, ¹² the Supreme Court curtailed broad prosecutorial discretion then in existence based on the proliferation of overlapping and related offences. The indictment contained two distinct statutory offences, the sale of drugs not being in their original package, and the sale of the drugs in default of a written order (prescription) of the purchaser. Section 1 of the Harrison Narcotic Act 1914 created the offence of selling any of the forbidden drugs except in or from the original stamped package, and section 2 created the offence of selling such drugs not in pursuance of a written order of the person to whom the drug is sold as required by the statute. While the statute created two distinct offences there was one sale and the contested issue was if both statutory provisions being violated by the same legislation, the defendant committed two offences or only one. Sutherland J. reiterated the applicable rule where the same act or transaction constitutes a violation of two distinct statutory provisions, the approach to be applied is whether each provision requires proof of an additional fact which the other does not. Prohibited conduct may constitute offences defined by two statutory provisions and if each provision requires proof of an additional fact which the other does not, an acquittal or conviction under either provision does not exempt the defendant from prosecution and punishment under the other provision. ¹³ The approach to determining the sameness of offences adopted in Blockburger necessitates judicial assessments of the elements of each offence as they are delineated by the relevant statute, notwithstanding the actual evidence that will be adduced. This approach requires the prosecution to establish that each offence contains at least one mutually exclusive defining element, and if one offence is fully subsumed by another offence, typically in the case of lesser included offences, then offences are differentiated. ¹⁴

Blockburger concerns statutory definitions that delineate elements of offences as stated by the Court in Iannelli v United States, ¹⁵ ‘[i]f each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes…’ ¹⁶ Even though offences may overlap, each offence must contain an element which the other does not to successfully raise the pleas in bar. While this approach creates a presumption of legislative intent, it was not designed to contravene such intent. ¹⁷

Blockburger was applied in Brown v Ohio ¹⁸ where the Supreme Court concluded that an acquittal on a greater or lesser included offence prevents a successive prosecution on the other offence. In that case, prosecution and punishment for the offence of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent violated the double jeopardy principle. Powell J. opined that courts are prohibited from imposing cumulative punishments for two offences in a single prosecution; likewise, prosecutors are prohibited from striving to achieve the same result in successive prosecutions. ¹⁹

The decisive question under Blockburger is whether each statutory provision requires proof of an additional fact which the other does not, compared to the statutory elements of the offences under consideration. In Illinois v Vitale, ²⁰ having cited the Blockburger same elements approach, White J. opined that if a subsequent prosecution for manslaughter seeks to establish a failure by the defendant to slow and avoid an incident as the reckless act necessary to prove manslaughter, the defendant could plead double jeopardy. ²¹ Following this decision, the Supreme Court was inclined to look outside the Blockburger criteria and considered the evidence necessary to prove the offences in successive prosecutions. If offences are not the same based on a strict application of Blockburger, but the evidence necessary to prove the offence in the original prosecution is the same evidence adduced in a subsequent prosecution, then the subsequent prosecution should be estopped. Illinois v Vitale was approved by a narrow majority in Grady v Corbin ²² which concerned vehicular homicide wherein the Court adopted a different approach. Brennan J. opined that technical comparisons between elements of offences under the Blockburger approach does not adequately safeguard against successive prosecutions. The facts of Grady v Corbin evidence the limitations of Blockburger. ²³ Brennan J. stated that if Blockburger constituted the entire analyses of similarities between offences then the defendant could be prosecuted in four consecutive trials, namely failing to keep right of the median, driving while intoxicated, assault and homicide. Successive prosecutions would enhance the presentation of evidence, opportunity to reassess witnesses that gave the most convincing testimony and documentary evidence that had the greatest impact, and efficacy of opening and closing arguments that evidently persuaded the jurors. ²⁴ The defendant would be required to vigorously contest and endure each prosecution or alternatively plead guilty to avoid the repeated ordeal and expense of successive prosecutions. ²⁵ Brennan J. referred to Vitale, and reiterated that double jeopardy prohibits successive prosecutions wherein the prosecution seek to establish an essential element of an offence in a subsequent prosecution, which would prove conduct that constitutes an offence for which the defendant has already been prosecuted culminating in an acquittal or conviction. Judicial assessments should critically examine what prohibited conduct the prosecution will prove, not the evidence the prosecution will adduce to prove that conduct. The prosecution cannot circumvent the double jeopardy prohibition by reworking evidence adduced in successive prosecutions to facilitate proving the same prohibited conduct. ²⁶ This approach was referred to as the same evidence approach, to prevent a second trial based on the same conduct as that which had been tried at the first trial. Following Grady v Corbin, the prosecution had to satisfy not only the Blockburger criteria, but also a same conduct approach for successive prosecutions based on the same offence. ²⁷ The application of Grady was not without controversy. ²⁸

In United States v Dixon, ²⁹ the Supreme Court returned to Blockburger clarifying the same elements/evidence approach, and by a narrow majority overruled the same conduct approach adopted in Grady v Corbin, concluding that double jeopardy proscribes successive prosecutions where the offences in both sets of prosecutions fail the same elements assessment that was articulated in Blockburger. ³⁰ Scalia J. reaffirmed the double jeopardy principle applies if offences for which the defendant is prosecuted and punished cannot survive the Blockburger criteria, which examines whether each offence contains an element not contained in the other offence and if not, they are deemed the same offence. Scalia J. opined that while the prosecution of the offences would be prohibited by the Grady same conduct approach, Grady should be overruled because that approach contradicted previous judgements and caused uncertainty concerning judicial interpretations of the same offence. ³¹ Grady was overruled on the basis that it has merely served to produce confusion and furthermore that it was deficient in terms of constitutional and historical pedigree. ³² The Court emphasised that it would not be constrained to follow previous decisions that are unworkable or badly reasoned. Notwithstanding this development, Dixon has been criticised for undermining the essence of the double jeopardy principle as the application of the same elements approach is more favourable to prosecutorial strategies for a successive prosecution. ³³

Same Transaction

The Supreme Court has considered other approaches including collateral estoppel, which prevents the same parties from relitigating factual issues previously determined by final judgement. In Ashe v Swenson, ³⁴ the prosecution was collaterally estopped from prosecuting a defendant for robbing one of six men at a poker game when a jury had already acquitted him of robbing another one of the same six men. While successive prosecutions might have been permitted under Blockburger (because two prosecutions would have been based on different victims), the prosecution was not permitted to effectively rehearse its case and secure a conviction following an acquittal for substantially the same offence.

The same transaction approach stipulates that where two or more offences are part of the same criminal transaction and no human act or agency (such as medical negligence) separates the offences, they are deemed the same offence. The same transaction assessment requires the prosecution to combine all offences committed during a single criminal transaction that share a common factual basis and display a common objective or intent. Determining the sameness of offences was reformulated by the Supreme Court in Ashe v Swenson, ³⁵ adopting the same transaction instead of same evidence approach. ³⁶ Brennan J. opposed the Blockburger same elements assessment instead enunciating the same transaction approaches because Blockburger, instead of safeguarding, effectively annuls the double jeopardy principle. Thus, if a single criminal episode involves several distinct victims, under the same evidence assessment successive prosecutions are permissible for separate to each offence committed against a distinct victim. Whereas the same evidence approach may permit successive prosecutions where a single transaction is divisible into chronologically discrete offences and a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. ³⁷ Brennan J. opined that the double jeopardy safeguard requires the prosecution to combine all the offences based on a single criminal act, occurrence, episode or transaction at one trial. The same transaction approach enforces the rationale of the double jeopardy principle in addition to complying with the generally accepted rule of criminal procedure that the consolidation in one prosecution of all the issues arising out of a single transaction or occurrence best promotes justice, economy and convenience. ³⁸ In contrast to the same evidence approach which allows the same elements/evidence to be admitted in a second criminal trial, the same transaction approach prevents repetitive litigation over the same factual connections. ³⁹ This approach is more beneficial to accused persons raising the pleas in bar of a successive prosecution. However, the major criticism of the same transaction approach is that it prevents more than one prosecution where the accused is alleged to have committed a series of criminal acts during a criminal transaction.

Dual Sovereignty

Criminal transgressions might constitute offences against more than one sovereign prosecutorial authority within the same jurisdiction. ⁴⁰ The double jeopardy clause of the Fifth Amendment is applicable to state laws by virtue of the Fourteenth Amendment, ⁴¹ and the same offence dilemma is compounded by the state-federal prosecutorial jurisdictions. ⁴² The doctrine of dual sovereignty permits successive prosecutions for the same offence by federal and state law, ⁴³ and state prosecution following federal prosecution. ⁴⁴ Due process rights are undermined with the prospects of multiple prosecutions for substantially the same offences by different sovereigns. ⁴⁵ Reconciling state and federal substantive criminal law and concurrent prosecutorial jurisdictions adds complexity to determinations of the same offence. ⁴⁶

In Gamble v United States, ⁴⁷ the Supreme Court considered whether the dual-sovereignty undermines the prohibition on double jeopardy, and the contentious issue was whether the separate sovereigns exception to the prohibition should be annulled. In a 7-2 majority decision the Court declined to overturn the dual-sovereignty doctrine, and clarified that the doctrine is not an exception to the prohibition against double jeopardy, but rather is a corollary to the wording of the Fifth Amendment constitutional guarantee, which is a prohibition against defendants being ‘twice put in jeopardy … for the same offence’. ⁴⁸ The majority reasoned that offences are determined by law, and laws are determined by a sovereign authority, therefore the laws of two sovereigns, federal and state, created distinct and separate offences. The Court rejected the defendant's argument that the incorporation of the prohibition on double jeopardy against states eroded the theoretical foundation of the dual sovereignty doctrine. In a robust dissenting judgement, Justice Ruth Bader Ginsburg opined that the prohibition on double jeopardy should proscribe ‘successive prosecutions for the same offense by parts of the whole USA’ ⁴⁹ and that the separate sovereigns doctrine is based upon a mere ‘metaphysical subtlety’. ⁵⁰ Likewise, Justice Gorsuch reminded the Court that the doctrine of ‘separate sovereigns’ is not incorporated in the Fifth Amendment and therefore violates the very essence of the prohibition on double jeopardy. ⁵¹ Gamble was approved in Denezpi v United States, ⁵² wherein the Supreme Court held that the Fifth Amendment constitutional guarantee against double jeopardy does not bar successive prosecutions of distinct offences, even if those offences are prosecuted by a single sovereign.

England and Wales

In the seminal House of Lords judgement in Connelly v DPP, ⁵³ their Lordships determined that the double jeopardy principle only applied to multiple prosecutions for an identical offence. Their Lordships also propounded a broader principle whereby courts of criminal justice possess the inherent power to estop a prosecution for the same prohibited conduct in circumstances where the prosecution would be unjust or oppressive. The principle enunciated in Connelly stipulates that prosecutions which violate objective standards of fairness and hampered defence rights should be stayed as abuse of process. ⁵⁴ While the House of Lords opined that a second prosecution could proceed in ‘special circumstances’, their Lordships did not elaborate on the meaning of this phrase. Presumably, this exception would include change of consequences (element of a separate and distinguishable offence) arising from the prohibited conduct such as the death of the victim of a serious assault, or in cases where new and compelling evidence against the accused person based on statutory exceptions to the common law principle.

In Connelly, the appellant was charged on two indictments, one charging murder, the second with aggravated robbery, both offences arising from the same prohibited conduct. ⁵⁵ The defendant's murder conviction was overturned by the Court of Appeal, and he was subsequently convicted of aggravated robbery. The prosecution adduced the same evidence as had been presented at the trial for murder. The appeal against conviction was based on whether a plea of autrefois acquit should be allowed because the issue as to whether the defendant participated in the robbery had been decided in his favour by the Court of Appeal on the murder prosecution arising from the same factual situation. Both the Court of Appeal and the House of Lords dismissed the appeal. On the trial for murder, the defendant could not legally have been convicted of robbery. The evidence required to prove the robbery offence would have been insufficient to secure a conviction for murder or manslaughter. Lord Morris set out the principles governing the pleas in bar, autrefois acquit and autrefois convict, ⁵⁶ and opined that it is immaterial in judicial considerations of the sameness of offences whether facts under examination or witnesses are the same in subsequent prosecutions. ⁵⁷ An offence for which the accused could have been convicted in the former prosecution concerns jury decisions to acquit on the compound offence and instead convict of a lesser-included offence, the most common example being a conviction for manslaughter as an alternative to a murder indictment. Lord Morris opined that judicial assessments should not focus on the prohibited conduct but instead should be concerned with offences. Moreover, judicial assessments determining the sameness of offences should examine ‘whether such proof as is necessary to convict of the second offence would establish guilt of the first offence for which on the first prosecution there could be a conviction’. ⁵⁸ Lord Devlin approved of Lord Morris's judgement in the following terms:

For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same criminal offence as that with which he is then charged. The word “offence” embraces both the facts which constitute the crime and the legal characteristics which make it an offence…[This] extends the doctrine to cover offences which are in effect the same or substantially the same… [This] refer[s] to the legal characteristics of an offence and not the facts on which it is based…legal characteristics are precise things and are either the same or not. ⁵⁹

Connelly was applied in R v Z ⁶⁰ concerning the admissibility of evidence of similar facts in a prosecution where the accused had been acquitted of a similar offence. The House of Lords concluded that the double jeopardy principle did not bar the admission of such evidence, however trial judges must exercise their discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude unfair evidence that would compromise the fairness of the trial. Lord Hobhouse opined that similar facts may be admissible since they are relevant to the proof of the defendant's guilt. While evidence relating to one incident taken in isolation may be unconvincing to prove guilt beyond reasonable doubt, when substantially the same evidence is given of several similar incidents, the evidence of the defendant's guilt may be convincing.

Whereas Connelly was concerned with a previous acquittal, R v Beedie ⁶¹ concerned a previous conviction. On appeal against a subsequent prosecution for manslaughter following conviction for a regulatory offence concerning the poor maintenance of a gas fire, the Court of Appeal applied the principles established in Connelly and determined that the applicability of the pleas in bar should be conditional on a narrowly defined assessment of offences and applied only where the same offence, both in fact and law, formed the basis of both prosecutions. ⁶²

Beedie was applied in R v Phipps (James Michael) ⁶³ wherein the Court of Appeal considered whether a prosecution for dangerous driving following a conviction and sentence for driving with excess alcohol where both offences arose out of substantially the same facts was an abuse of process. In allowing the appeal, the Court held that the second prosecution arose out of substantially the same facts and that there were no exceptional circumstances justifying the second prosecution. The trial judge should have stayed the second proceedings as an abuse of process. The Court noted that previous authorities have not considered the meaning of the same, or substantially the same facts, and concluded that successive prosecutions should not be permitted except in special or exceptional circumstances arising out of the same ‘incident’. The Court emphasised that the prosecution should determine at the outset, or before the conclusion of the first prosecution, the offences that should be prosecuted arising out of the ‘same incident’ (equating the same, or substantially the same facts, with ‘incident’). ⁶⁴ This suggests an interpretative approach similar to the same criminal transaction assessment for determining the sameness of (or differentiating between) offences in successive prosecutions for more serious offences (on an ascending scale of gravity) following a previous conviction (and presumably a previous acquittal), which may be estopped as abuse of process as opposed to the pleas in bar.

Where the consequences of the prohibited conduct have changed with the result that a successive prosecution may proceed for the more serious offence, the pleas in bar would be unavailable to the accused. This aspect of the double jeopardy principle is exemplified by earlier superior court judgements. In R v Thomas, ⁶⁵ the Court of Appeal concluded that where a defendant had been convicted of wounding with intent to murder and the person wounded subsequently died of the wounds inflicted, a plea of autrefois acquit could not be raised against a subsequent indictment for murder, as in these circumstances the defendant is not being twice tried before a court of criminal jurisdiction for the same offence. In R v Tonks, ⁶⁶ Lord Reading LCJ delivering the judgement of the Court of Appeal held that a defendant could be indicted for manslaughter of a child where death has occurred after the conviction of the same defendant for the lesser offence of wilful neglect of a child, as the defendant in these circumstances would not be prosecuted for the same offence. There is a separate and distinct offence that may be prosecuted. This procedure is logical to the extent that where the circumstances have substantially changed and the prohibited conduct was the legal and factual cause of the more serious offence, there should be no legal impediment against a prosecution for the more serious offence based on the same factual circumstances. This approach is predicated on the same elements approach for determining the sameness of offences that will not necessarily prevent the evidence adduced at the original criminal trial from also being tendered at a subsequent trial for an offence based on the same prohibited conduct. In an earlier judgement on the issue, R v Ollis, ⁶⁷ evidence adduced for the original prosecution was also entered at a subsequent prosecution of the same defendant, and the issue for the Court of Crown Cases Reserved was whether this evidence should have been admitted at the second trial. Grantham J. opined that the appropriate approach is whether the original offence prosecuted is the same as the subsequent offence, or whether the evidence necessary to support a subsequent offence was sufficient for a conviction on the original offence. Otherwise, the evidence adduced on the original prosecution could be proffered against the same defendant in a subsequent prosecution for a different offence. ⁶⁸

The issue of multiple offences based on the same prohibited conduct being prosecuted in the same prosecution was further developed by the Court of Appeal in R v Hamer (Kaleb). ⁶⁹ The defendant pleaded guilty to two offences based on the same criminal transaction, being possession of a knife, and being in breach of a knife crime prevention order (KCPO). The Court had to consider the circumstances wherein the accused could be prosecuted for two offences arising out of the same prohibited conduct. The issue centred on whether the defendant could be convicted and punished for two alterative offences (rule against duplicity). ⁷⁰ The Court dismissed the appeal against conviction, and determined that the while two offences were based on the same course of prohibited conduct, both offences were sufficiently differentiated to be prosecuted. ⁷¹ The first offence concerned a substantive criminal act, whereas the second offence concerned the non-compliance with court orders previously imposed on the defendant. While both offences contained similar elements there were differences including the nature of defences with different burdens of proof. The defendant had accordingly committed both offences based on the same prohibited conduct. Both offences were legally different which suggests the application of the same elements approach to determining the sameness of offences. ⁷² The Court did note that there will be circumstances wherein prohibited conduct would entail the commission of one offence, as opposed to both offences (based on the same prohibited conduct). The judgement is illustrative of likely future directions of judicial interpretative analysis and application of the same offence criterion of the double jeopardy principle.

Canada

The principle enunciated by the Supreme Court of Canada in R v Kienapple ⁷³ prohibits multiple convictions for a single criminal act (presumably this approach includes omission liability), which is applicable where offences do not relate to different prohibited conduct, but instead describe separate ways of committing the same prohibited act. The defendant was prosecuted for two offences relating to a single act of unlawful sexual intercourse, namely rape and unlawful carnal knowledge of a female under 14 years of age and was convicted of both offences. The Court overturned the conviction for unlawful sexual intercourse concluding that a defendant cannot be convicted of two offences where both offences were based on substantially the same facts. Laskin J. opined that if the ‘same or substantially the same elements’ constitute an offence prosecuted in a subsequent prosecution the double jeopardy principle applies. ⁷⁴

Kienapple prohibits successive prosecutions or punishments for more than one offence arising from the same set of facts. Where a criminal transaction gives rise to two or more offences with substantially the same elements and the defendant is convicted of more than one of those offences, the defendant should be convicted of only the most serious of the offences. ⁷⁵ In R v Van Rassel, ⁷⁶ the Supreme Court reiterated the rationale for the Kienapple principle which is founded on the broader principle of res judicata and arises when two offences are based on the same prohibited conduct ‘where there is no additional and distinguishing element contained in the offences that goes to guilt’. ⁷⁷

Kienapple is not applicable to offences involving different victims, in accordance with the stipulation that offences must be the same both in law and in fact. In R v Prince, ⁷⁸ the Supreme Court reaffirmed and further clarified the application of Kienapple concluding that there must be a sufficient factual and legal nexus between the two offences. ⁷⁹ A legal nexus between the offences exists if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the application of Kienapple. The defendant stabbed the victim who was six months pregnant, and several days later the victim gave birth to a child who lived for nineteen minutes and then died. The prosecution argued that the cause of death was directly connected to the stabbing. The defendant was convicted and sentenced for assault causing bodily harm to the victim, the mother of the deceased new-born. Subsequently, the defendant was charged with manslaughter in the deceased new-born. The Court concluded that Kienapple did not prohibit the subsequent prosecution for manslaughter. Dickson C.J. opined that the principle requires a relationship of sufficient proximity between the facts and the offences in multiple prosecutions. The relationship of proximity between the offences considers elements that are substantially the same as, or adequately corresponds to, an element in the other offence for which the defendant has been convicted. The application of Kienapple is conditional upon the requirement of sufficient proximity between offences that will only be satisfied if there is no additional and distinguishing element in the comparable offence. If offences are of unequal gravity, then Kienapple may prohibit a subsequent prosecution for a lesser offence, notwithstanding the additional elements in the greater compound offence provided there are no differentiating (additional) elements in the lesser offence. ⁸⁰

Dickson C.J. reiterated that the double jeopardy principle would be inapplicable to offences relating to different victims. The principle does not prohibit multiple prosecutions and punishments for offences where differentiating elements incorporate injury or death of two different victims. Moreover, the majority judgement in Kienapple referred to the death of a victim of violent crime as a ‘new relevant element’, ⁸¹ which implies the consequence of prohibited conduct is an element that could differentiate between separate and distinct offences concerning a single unlawful act (presumably this approach is equally applicable to omission liability).

In Kienapple, the Court was concerned with a single act which gave rise to two different offences and concluded that multiple convictions could not be supported for the same prohibited conduct or for the same cause or matter or where the same or substantially the same elements constituted two different offences. Furthermore, in R v Loyer and Blouin, ⁸² the Court stated that Kienapple did not automatically apply where the accused, charged with two offences with common elements, pleads guilty to the less serious offence. In such a case the plea should be paused pending the trial of the more serious offence. If the accused is convicted, the plea of guilty to the less serious offence should be struck out and an acquittal entered. If there is a plea of guilty to the more serious offence, an acquittal should be entered on the less serious offence.

In R v Sheppe, ⁸³ the appellant and another, Beeman, were jointly charged unlawfully conspiring together to traffic in heroin. The appellant was also charged in a second count for unlawfully trafficking in heroin. Beeman was also charged with unlawful possession of a narcotic and was acquitted under the Kienapple principle, but the acquittal was set aside on appeal by the British Columbia Court of Appeal and a new trial was ordered. Both defendants unsuccessfully appealed their conviction for conspiracy. The appeal against conviction of trafficking was held up pending the disposition of the prosecution's appeal against Beeman's acquittal of the possession offence. The Court of Appeal rejected the application of the Kienapple principle in quashing Beeman's acquittal and affirmed the appellant's conviction of trafficking. Beeman's appeal on the possession conviction was dismissed as moot when the prosecution announced that it did not intend to proceed with the new trial that had been ordered by the Court of Appeal. The Court granted leave to appeal the trafficking conviction to enable the defendant to raise the Kienapple principle in respect thereof. On appeal, the Supreme Court held that the two convictions were not based on the same or substantially the same elements to establish criminal liability. The trafficking offence had no element of culpability that was in any way common with the conspiracy offence that depended on proof of a prior illegal agreement and was independent of the trafficking offence. ⁸⁴

Dual Sovereignty

The applicability of federal and state offences to the same prohibited conduct has been confirmed by the Supreme Court where offences created by state legislation are of a different character, albeit concerning similar conduct, to those enacted by the federal Criminal Code. ⁸⁵ The increased propensity for successive prosecutions and multiple punishments for offences under federal and state statutory provisions requires a careful balancing of rights so as not to undermine the principle against double jeopardy. ⁸⁶ Arguably the pleas in bar should be equally applicable to prosecutions of federal and state offences based on the same prohibited conduct. ⁸⁷

Australia

In Pearce v The Queen, ⁸⁸ the High Court of Australia per Kirby J. concluded that judicial assessments should invoke the same approach as that invoked in seminal common law jurisdictions, notably England and Wales, and the United States. Determinations of the same or substantially the same offence approach requires defendants to establish the essential elements of offences claimed to be duplicated in successive prosecutions. Elements of offences with separate and distinctive features (normally of aggravation) to statutory delineations of offences result in differentiation between offences which is legally significant. Prosecutions regarding such different offences do not violate the prohibition on double jeopardy because while the defendant is in jeopardy of conviction and punishment, the defendant is not placed in double jeopardy as the offences are legally differentiated. ⁸⁹ However, in R v Carroll, ⁹⁰ the High Court unanimously upheld the decision by a Queensland Court of Appeal to stay an indictment for perjury as the indictment was found to negate the defendant's previous acquittal for murder in violation of the double jeopardy principle.

Defining elements of comparable offences are relevant in determining the sameness of offences for the purposes of the double jeopardy principle, not the surrounding facts or indeed the evidence adduced during the original prosecution. Nonetheless, in Rogers v The Queen, ⁹¹ the High Court concluded that if the autrefois pleas in bar are not available to the accused, a second prosecution may be stayed by the trial court as an abuse of process. There is no legal impediment per se against tendering the same evidence in successive prosecutions against the same defendant provided the offences are legally and factually separate and differentiated.

Dual Sovereignty

Judicial precedent suggests that successive prosecutions for substantially the same offence by federal and state jurisdictions will be estopped. In Gould v Sin On Le, ⁹² the defendant was convicted of ‘unlawfully having opium in possession’ contrary to the Customs Act 1901 however, the conviction was overturned after the defendant had served seven days imprisonment. A subsequent federal prosecution for the same offence was prohibited, however, a prosecution was commenced for an offence under state legislation, and the defendant was convicted of being ‘found in the unlawful possession of opium’. On appeal, the High Court held that both offences were substantially the same, consequently the accused could raise the federal prosecution as a plea in bar of the state prosecution.

New Zealand

The New Zealand Court of Appeal has adumbrated the approach determining the sameness of offences concerning the prohibition on double jeopardy is to focus on the similarity between offences, rather than whether multiple offences are based on the same facts. ⁹³ Whereas a narrow same elements approach may facilitate successive prosecutions, a broader same facts assessment ensures compliance with the double jeopardy principle. ⁹⁴

Judicial determinations of offences permitting successive prosecutions include: operation of a business engaged in providing passenger services differentiated from driving a vehicle in a passenger service; ⁹⁵ sexual conduct with consent induced by threats (Crimes Act 1961, s 129A(1)) differentiated from compelling the provision of commercial sexual services (Prostitution Reform Act 2003, s 16); ⁹⁶ presenting a firearm without lawful excuse differentiated from assault with a weapon; ⁹⁷ driving with excess blood alcohol differentiated from driving while under the influence of drink or drugs; ⁹⁸ assault with a weapon different differentiated from assault with intent to commit sexual violation; ⁹⁹ causing death by reckless driving differentiated from causing death while driving with excess blood alcohol ¹⁰⁰ and incitement to resist the police differentiated from the offence of sedition. ¹⁰¹ These cases indicate a proclivity towards permitting successive prosecutions based on the same prohibited conduct.

A sufficient identity between offences was found in cases involving various offences: wounding with intent to injure and assault using a knife; ¹⁰² riotous assembly and riotous damage charges supported by essentially similar evidence; ¹⁰³ possession of cannabis and possession of cannabis for sale. ¹⁰⁴ These examples of judicial interpretative analyses of the sameness of offences are illustrative of the types of offences that are likely to overlap and therefore prohibit successive prosecutions.

The outcome of judicial assessments of the same offence prohibiting successive prosecutions are relatively fewer compared with determinations permitting successive prosecutions. Notably, these cases were decided under sections 357 to 360 of the Crimes Act 1961, ¹⁰⁵ however, sections 46 and 47 of the Criminal Procedure Act 2011 replaced ss 358 (pleas of previous acquittal and conviction) and 359 (second accusation) of the 1961 Act as the statutory formulation of the pleas in bar. It remains to be seen whether the new statutory provisions will be interpreted along the same lines as previous decisions where a preponderance of offences were deemed separate and distinct to permit successive prosecutions.

Continuing Offences

Successive prosecutions for continuing offences do not constitute multiple convictions for substantially the same offence where the successive prosecution and conviction relates to a continuation of the offence beyond the period of the original conviction. ¹⁰⁶ Jurisprudence emanating from the Supreme Court of Canada neatly and effectively illustrates the dilemma concerning ongoing offences.

The degree of factual similarities between offences was exemplified by the Supreme Court of Canada judgement in Côté v The Queen, ¹⁰⁷ which involved two offences that would typically invoke the pleas in bar. ¹⁰⁸ Two years after a robbery conviction the defendant was found in possession of the same property that formed the basis of the conviction. The defendant had concealed the stolen property before the commencement of the custodial sentence, and contended this was a case of continued possession of property resulting from a robbery. This assertion was rejected by the Court because the unlawful possession was sufficiently removed in time and circumstance from the original theft to convict the defendant of both offences. ¹⁰⁹ A minority concluded that the intervening conviction separated the theft offence from the subsequent unlawful possession offence because a defendant could not be judicially sanctioned to continually engage in prohibited conduct. ¹¹⁰

In a similar vein the Supreme Court judgement in R v Prince ¹¹¹ further illustrates the complexity of differentiating between offences based on developments from the original offence. The defendant stabbed the victim, a pregnant woman, in the abdomen with the result that she gave premature birth several days later. The infant died shortly thereafter. On a prosecution of attempted murder of the mother of the child, the defendant was acquitted of the substantive offence (murder) and instead convicted of causing serious bodily harm. He was subsequently prosecuted for manslaughter relating to the infant's death. The Supreme Court of Canada rejected the plea of autrefois acquit. Dickson C.J. stated the double jeopardy principle was not applicable to the prosecution of offences where the prosecutions relate to separate victims. Causing severe injury and death are separate and distinct offences containing elements defining the parameters of causing serious injury and death, respectively. Dickson C.J. considered the broader purpose and functions of the criminal law to protect society and multiple victims of crime, such as a defendant being criminally liable for multiple injuries and death caused by throwing a bomb (or discharging a noxious thing) into a packed theatre, or a negligent driver who injured or killed multiple victims. ¹¹² Although the nature of the offences at issue, which in this case involved serious personal violence, might have influenced the Court's rejection of the defendant's autrefois plea in bar, it is notable that the Court dealt with the differentiating elements of comparable offences and concluded that engaging in prohibited conduct might constitute the commission of multiple offences that could be prosecuted in one indictment or in separate indictments. The Court reaffirmed the application of the double jeopardy principle is conditional upon a factual and legal nexus differentiating between comparable offences.

Analysis

The prohibition on double jeopardy is a complex aspect of criminal procedure, the application of which raises procedural dilemmas for courts of justice, prosecutors and defendants alike. Determining the sameness of offences is the most litigated aspect of the principle. Resolving the problematic issues of similarity between offences in successive prosecutions entails judicial assessments of statutory or common law elements between the offences under consideration in the context of the relevant evidence establishing the facts and evidence. Double jeopardy issues that arise in seminal common law jurisdictions are not generally unique to those jurisdictions and it is beneficial to evaluate how cognate jurisdictions deal with the same offence dilemma. While judicial formulations for determining the sameness of offences hold their own intrinsic values, they may inform judicial interpretative analysis differentiating between comparable offences in cognate jurisdictions.

The preponderance of judicial formulations in seminal common law jurisdictions have adopted variations of the same elements approach that potentially broadens prosecutorial discretion in successive prosecutions based on the same prohibited conduct. This approach is contrasted with the same transaction judicial assessment that demands prosecutorial efficiency (albeit functions as an impediment against post-acquittal retrials for compound and lesser-included offences). The same transaction approach had been invoked by the superior courts in the United States and while the Supreme Court has reinstated the same elements approach which originated in Blockburger, conceivably state jurisdictions could invoke the same transaction approach, albeit this is likely to be reversed on appeal to the Supreme Court. Likewise, in Canada and Australia wherein federal and state laws are applicable, there is potential for further complexity between judicial interpretative analyses by federal and state courts restricting the autrefois pleas in bar to successive prosecutions.

Variations in terminology between same prohibited conduct, act, offence, transaction, evidence, facts, are invariably used in judicial assessments differentiating between comparable offences leads to uncertainty. Nonetheless, the same elements approach does seem to accord with a narrow interpretation of criminal law statutes, ¹¹³ which serves to avoid the dangers of judicial innovation ¹¹⁴ that might undermine the rationale of the double jeopardy principle.

The prolific overlapping of ever increasing voluminous offences underscores judicial assessments of whether parliament intended to provide multiple statutory provisions criminalising substantially the same prohibited conduct. ¹¹⁵ This is compounded by the ever-increasing volume of offences created by secondary legislation often accompanied by significant punishments. ¹¹⁶ If parliament had intended (presumably inadvertently) to create multiple offences criminalising substantially the same prohibited conduct, the pleas in bar would be available to prevent successive prosecutions and multiple punishments. Conversely, if parliament intended that multiple offences in question were separate and distinct, concerned with similar types of wrongdoing, the accused will (presumably) not be permitted to raise the pleas in bar.

Whether judicial interpretations of the same offence have sufficient latitude to grant or refuse applications for successive prosecutions raises a potential constitutional issue regarding the extent to which courts of competent criminal jurisdiction are bound by parliamentary intent even where multiple offences are substantially the same. Clear legislative intent and statutory drafting should unambiguously determine the purpose and scope of offences according with the principle of legality. In the absence of national criminal codes consolidating offences, a uniform approach to differentiating between the definition of offences and amendments thereto should be adopted in accordance with the principles of legality and legal certainty. Regard for the principled approach to structural uniformity in statutory definitions, layout of offences and avoidance of replicating already existing offences are fundamental to ensuring consistent construction and application in accordance with the principles of legality and legal certainty.

The applicability of the pleas in bar is dependent upon successive prosecutions arising from the same facts encompassing the prohibited conduct as the original prosecution in that prosecutions must be based on the same incidence of the offence. A sufficient degree of proximity is required between the facts and elements of offences that form the basis of successive prosecutions. If an accused is prosecuted for an offence arising from multiple incidences of the same offence, each incidence could be prosecuted separately under the same elements approach, based on a factual and legal nexus between offences that is consistent with the correspondence principle in the construction of criminal liability. ¹¹⁷ The same transaction approach would require the prosecution to include every variation of offences in one indictment for one prosecution of the prohibited conduct. If the accused was previously prosecuted on a material fact of the offence and acquitted of that material fact, generally any subsequent prosecution based on that material fact would be prohibited.

Conclusion

Legislators cannot foresee every possible variation of offences and devolve a measure of discretion to prosecutors when framing indictments considering new or novel variations of an offence. Likewise, judicial discretion is pivotal to differentiating between offences or determining whether offences are substantially the same. Offences defined by statute necessarily operate on an abstract level incorporating a general categorisation of the foreseeable variations of offences having clearly defined elements. The ever increasing proliferation of new offences with concomitant distinctions between the prohibited conduct and the elements of offences engenders procedural dilemmas in that a prohibited act or omission might satisfy the elements of multiple offences. Diverse approaches to judicial determinations of the prohibited conduct-offence dilemma create the potential for successive prosecutions and multiple punishments for substantially the same offence. The qualifier ‘substantially’ permits minor variations in the verbal formulae in the elements of offences under comparison, and (presumably) minor differences in statutory language creating such offences would not be determinative of the issue.

In jurisdictions where post-acquittal retrials are possible, based on prescribed statutory exceptions to the common law double jeopardy principle, the facts combined with new evidence constituting separate and distinct elements are invoked to present separate and distinct offence theories in successive prosecutions. The potential for prohibited conduct to correspond with the elements of multiple offences necessitates the exercise of due diligence by prosecutors and judiciary (as final arbitrators) when balancing the public interest in the prosecution of serious offences with the rationale of the prohibition on double jeopardy. Judicial formulations and interpretations of the same elements approach (interchanging between the prohibited conduct and offences) should, in theory, result in predictability and consistency in the application of substantive criminal law and the construction of criminal liability. Substantive analysis of offences requires judicial guidance and consistency of application to determine the propriety of successive prosecutions (including post-acquittal retrials) and multiple punishments for substantially the same offence.