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Endnotes

^[1] In R v Moore [1999] 3 NZLR 385 there are reported both a High Court ruling, at a second trial, rejecting an application for severance of proceedings against an alleged party to the same murder from Moore's charge of conspiracy to pervert the course of justice, and also the Court of Appeal's judgment allowing Moore's appeal from a subsequent conviction and granting him severance. His conspiracy conviction and second appeal against sentence followed.

^[2] R v Moore (17 September 1999) unreported, High Court, Palmerston North Registry, T31/99, 3_5, Doogue J.

^[3] R v Moore (23 November 1999) unreported, Court of Appeal, CA399/99.

^[4] One-third of seven years: Criminal Justice Act 1985, s 89(3).

^[5] Criminal Justice Act 1985, ss 89(1), 80(1)(a), 89(2).

^[6] Green v United States (1957) 355 US 184, 187_188, per Black J.

^[7] Martin Friedland Double Jeopardy (1969) 4.

^[8] Law Commission for England and Wales Double Jeopardy: Consultation Paper 156 (HMSO, London, 1999) 30 [Double Jeopardy].

^[9] For the prohibition of double punishment for one offence, see the Crimes Act 1961, s 10(4).

^[10] See the discussion in paras 101_102.

^[11] For this reason we have not thought it appropriate to adopt the proposal of the Law Commission for England and Wales that, subject to certain conditions, the High Court should be able to quash an acquittal on the grounds of new evidence: Double Jeopardy, above n 8, 39. The Home Affairs Committee of the House of Commons conducted an inquiry into those proposals and expressed general support for them in its Third Report, Session 1999_2000, which may be found at: http://www.publications.parliament.uk/pa/cm 199900/cmselect/cmhaff/190/19002.htm.

^[12] See the discussion in paras 83_87 and 101_105.

^[13] Criminal Procedure and Investigations Act 1996 (UK), ss 54_57.

^[14] This means the offence of perverting the course of justice, under the Criminal Justice and Public Order Act 1994 (UK), s 51(1) (intimidation etc of witnesses, juries and others) or an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under the Perjury Act 1911 (UK), s 1: Criminal Procedure and Investigations Act 1996 (UK), s 54(6).

^[15] Criminal Procedure and Investigations Act 1996 (UK), s 54(1).

^[16] Criminal Procedure and Investigations Act 1996 (UK), s 54(2), (3) and (5).

^[17] Double Jeopardy, above n 8, 10_11.

^[18] The Law Commission for England and Wales questions the requirement that a person must have been convicted of an administration of justice offence. The Commission notes that the requirement means that an acquittal could not be reopened if the author of the interference were dead, overseas or had not been identified or apprehended. The Commission was of the view that the High Court should be satisfied that an offence had been committed. It was noted that the High Court is not a worse fact-finder than a jury and such a reform would make the procedure much easier without being unfair to the accused. The Commission stated that if it was thought necessary to retain the requirement for a conviction then, in their view, the requirement could be retained subject to certain exceptions where it is impossible to try the person alleged to have committed the administration of justice offence.

^[19] New Zealand Bill of Rights Act 1990, s 26; L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 (HL).

^[20] General Comment 13/21, para 19.

^[21] Double Jeopardy, above n 8, 18.

^[22] The concept of fundamental defect is seen in Article 4 of Protocol 7 to the European Convention on Human Rights, to which a number of signatories to the ICCPR (although not New Zealand) are parties. The Convention provides by Article 4:

(1)No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

(2) The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

The Law Commission for England and Wales has noted that Article 4(1):

"... embodies the principle of double jeopardy as it applies to the unilateral action of a prosecuting authority or private prosecutor. But Article 4(2) permits a case to be "reopened", in accordance with the provisions of domestic law, if there is "evidence of new or newly discovered facts", or if there has been "a fundamental defect in the previous proceedings": Double Jeopardy, above n 8, 19.

^[23] R v Davis [1982] 1 NZLR 584, 589, (CA) per Cooke J.

^[24] Arnold v NatWest Bank Plc [1991] 2 AC 93 (HL).

^[25] In R v Davis, above n 23, 589, Cooke J said "on the pragmatic ground that it introduces unwanted complications and is not really needed to do justice, we would favour following Humphrys in New Zealand and treating issue estoppel as having no place in our criminal law".

^[26] Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 (PC) [Sambasivam].

^[27] R v Davis, above n 23, 591.

^[28] See paras 91_100 below.

^[29] Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL).

^[30] Double Jeopardy, above n 8, 71_72. However, in affirming that a court has power to strike out a proceeding that seeks to mount a collateral attack upon a final determination if the relitigation would be unfair to a party or bring the administration of justice into disrepute, the majority decision of the House of Lords in Arthur JS Hall & Co v Simons, 20 July 2000, has diminished that uncertainty and brought English criminal law closely in line with New Zealand authority.

^[31] R v Davis, above n 23, 589; Bryant v Collector of Customs [1984] 1 NZLR 280 (CA); Ferris v Police [1985] 1 NZLR 314 (HC).

^[32] Bryant v Collector of Customs, above n 31; R v Roberts (1992) 10 CRNZ 172, 176_177 (CA); R v Wilson [1997] 2 NZLR 161, 167 (CA).

^[33] Hunter v Chief Constable of West Midlands Police, above n 29, 545. The test was laid down by Earl Cairns LC in Phosphate Sewage Co Ltd v Molleson (1894) 4 App Cas 801, 814 (HL). See paras 101_104 for further discussion of fresh evidence requirement.

^[34] Connelly v DPP [1964] AC 1254, 1347 (HL). The `general rule' enunciated by Lord Devlin has become known as the rule in Connelly.

^[35] R v Davis, above n 23, 589.

^[36] R v Arbuckle (2 March 2000) unreported, Court of Appeal, CA 526/99.

^[37] Sambasivam, above n 26, 478.

^[38] Counsel's argument had been directed only to weight and not to admissibility.

^[39] Sambasivam, above n 26, 479.

^[40] R v Roberts, above n 32.

^[41] R v Davis, above n 23, headnote.

^[42] R v Davis, above n 23, 592.

^[43] R v Davis, above n 23, 588.

^[44] R v Davis, above n 23, 592.

^[45] R v Wilson, above n 32.

^[46] R v Wilson, above n 32, 167.

^[47] R v Wilson, above n 32, 165.

^[48] R v Wilson, above n 32, 165.

^[49] R v Ollis [1900] 2 QB 758.

^[50] R v Ollis, above n 49, 764.

^[51] R v Ollis, above n 49, 776.

^[52] R v Ollis, above n 49, 778.

^[53] DPP v Humphrys [1977] AC 1 (HL).

^[54] DPP v Humphrys, above n 53, 40_41.

^[55] Which Lord Hailsham said was in some ways analogous to issue estoppel.

^[56] DPP v Humphrys, above n 53, 41.

^[57] R v Moore, above n 1, 397.

^[58] R v Moore, above n 1, 398.

^[59] DPP v Humphrys, above n 53, 26.

^[60] DPP v Humphrys, above n 53, 41.

^[61] R v Z [2000] 3 WLR 117 (HL) [R v Z (HL)].

^[62] R v Z [2000] Crim LR 293 (CA) (Transcript: Smith Bernal) [R v Z (CA) Smith Bernal Transcript]

^[63] Standing by itself the evidence in the case on which he had been convicted was not enough to satisfy the test for admission of similar fact evidence.

^[64] R v Z (CA) Smith Bernal Transcript, above n 62, 3_4.

^[65] R v Z (CA) Smith Bernal Transcript, above n 62, 13.

^[66] R v Z (HL), above n 61, 130.

^[67] R v Z (HL), above n 61, 135. But see R v ARP [2000] 2 LCR 119 (Supreme Court of Canada) to the contrary.

^[68] Double Jeopardy, above n 8, 82.

^[69] See Hui Chi-ming v R [1992] 1 AC 34 (PC).

^[70] R v Humphrys, above n 53, 40.