criminal-law trial double-jeopardy prosecution res-judicata
Can a prosecutor hold back charges so they can try again?
<p>Assume I was alleged to have been involved in a bank robbery gone wrong - guns were fired, people were killed and injured, some robbers were arrested at the scene, some escaped etc.</p>
<p>Obviously, there are a plethora of charges available to the prosecutor: murder, manslaughter, grievous bodily harm, assault, aggravated robbery, conspiracy, deprivation of liberty, resisting arrest, offensive language etc.</p>
<p>Can the prosecutor charge me with some, run the case to its conclusion and then, win or lose, charge me with others. Rinse and repeat.</p>
<p>In a civil trial, this would not be permissible due to the principle of <a href="https://en.wikipedia.org/wiki/Res_judicata" rel="noreferrer">res judicata</a> which requires a plaintiff to bring all of their claims against a specific defendant arising from a single event at one or forgo them. You can't sue someone for breach of contract, lose and then go again for negligence - you have to bring all your causes of action at once. Is there a similar principle in criminal law?</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p>For a particular sovereign in the United States, the criminal law test for this is from <a href="https://www.law.cornell.edu/supremecourt/text/284/299" rel="noreferrer">Blockburger v. United States</a> (emphasis mine)</p>
<blockquote>
<p>12
Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: 'A single act may be an offense against two statutes; and <strong>if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.</strong>' Compare Albrecht v. United States, 273 U. S. 1, 11, 12, 47 S. Ct. 250, 71 L. Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.</p>
</blockquote>
<p>What this says in more plain language is that a person can be prosecuted under two different statutes for the same logical act as long as there is at least one fact that has to be proven for each count which doesn't have to be proven for the other count. This does mean, for example, that a person could not be prosecuted for aggravated assault, acquitted and then later prosecuted for simple assault on the same facts if there aren't any facts required for simple assault that aren't required for aggravated assault.</p>
<p>For the example in the question, this does seem to mean that if, for example, a robber was first prosecuted for murder, and then later separately prosecuted for carjacking after the murder, this would not be double jeopardy.  I would guess in practice that courts wouldn't appreciate this kind of game-playing since it wastes the court's time as well to adjudicate two trials when there could just be one, but I don't know if there's a hard rule against it.  Blockburger was actually arguing that multiple convictions from one trial should be overturned because some of them relied on the same facts as another.  In this case SCOTUS ruled against Blockburger, but on the basis that the facts did not overlap, not that the legal basis of the argument was unsound.</p>
<p>I noted in the beginning that this applies to particular sovereigns, which in terms of US law means either a state or the US Federal Government.  Under the dual sovereignty doctrine (e.g. <a href="https://www.oyez.org/cases/2018/17-646" rel="noreferrer">Gamble v United States</a>), if the same set of facts of a case constitute both a state crime and a federal crime, or the also likely case that a federal crime requires all the facts of a state crime plus a few more, both the relevant state government and the Federal government can prosecute the person under their own statutes.  This would technically also apply if two states wanted to prosecute someone, although it's unlikely that there is any way to have the exact same set of facts break two different state's laws since state laws generally can only cover actions taken inside the state or affecting that state in particular.</p>

<p><a href="/questions/tagged/new-zealand" class="post-tag" title="show questions tagged &#39;new-zealand&#39;" rel="tag">new-zealand</a></p>
<p>This has been codified, and case law has provided some nuances. A great overview of it is given by Jeremy Finn and Don Mathias in &quot;<em>Criminal Procedure in New Zealand</em>&quot; which is helping me to write this answer.</p>
<blockquote>
<p>Can the prosecutor charge me with some, run the case to its conclusion and then, win or lose, charge me with others. Rinse and repeat.</p>
</blockquote>
<h2>No if the prosecutor lost</h2>
<p>i.e. there was an acquittal. <a href="https://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360095.html" rel="noreferrer">Section 47</a> of the Criminal Procedure Act 2011:</p>
<blockquote>
<p><strong>Previous acquittal</strong></p>
<p>If a plea of previous acquittal is entered in relation to a charge,
the court must dismiss the charge under section 147 if the court is
satisfied that the defendant has been acquitted of—</p>
<p>(a) the same offence as the offence currently charged, arising from
the same facts; or</p>
<p>(b) any other offence arising from those facts.</p>
</blockquote>
<p>However, the definition of &quot;acquittal&quot; for the purposes of this rule has been debated. Examples of what <em>may</em> not constitute an acquittal here are:</p>
<ul>
<li>the statement of acquittal (by the judge or the jury) was erroneous</li>
<li>the previous proceeding was terminated in a manner that allows the prosecution to start afresh, for example:
<ul>
<li>the jury failed to agree on a verdict</li>
<li>the charge was withdrawn with the leave of the court</li>
<li>the charges were dismissed on the basis that they are a nullity because the defendant would not be at risk of a valid conviction</li>
</ul>
</li>
<li>a dismissal of charge under <a href="https://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360237.html" rel="noreferrer">s 147</a> <em>before trial</em> — even though subsection (6) explicitly names that an acquittal: in <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2008/558.html" rel="noreferrer"><em>R v Taylor</em> [2008] NZCA 558</a>, the Court of Appeal held that a discharge under the predecessor of s 147, <a href="https://www.legislation.govt.nz/act/public/1961/0043/83.0/DLM331477.html" rel="noreferrer">s 347 of the Crimes Act 1961</a>, before trial was not an &quot;acquittal&quot; for the purposes of this topic because in pre-trial proceedings the defendant is not in &quot;jeopardy of conviction&quot;.</li>
</ul>
<h2>Possibly Yes if the prosecutor won</h2>
<p>Where the defendant has already been convicted, <a href="https://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360094.html" rel="noreferrer">section 46</a> allows to start a new case if the new charge is &quot;a more serious offence arising from the same facts&quot; and &quot;the evidence of the more serious offence was not readily available&quot; when the original charges were laid.</p>
<p>Again, there are nuances. Here they are around what constitutes &quot;the same facts&quot;. Relevant cases are <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2016/166.html" rel="noreferrer"><em>Rangitonga v Parker</em> [2016] NZCA 166</a> and <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2017/492.html" rel="noreferrer"><em>Filitonga v R</em> [2017] NZCA 492</a>.</p>

<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></p>
<p>In general, trying again for an offence on a new indictment from the same set of facts is an abuse of process under the terms of  <em>Connelly v DPP</em> [1964] AC 1254 (HL).  To quote from Lord Diplock's judgment in that case:</p>
<blockquote>
<p>As a general rule a
judge should stay an indictment (that is, order that it remain on the
file not to be proceeded with) when he is satisfied that the charges
therein are founded on the same facts as the charges in a previous
indictment on which the accused has been tried, or form or are a part
of a series of offences of the same or a similar character as the
offences charged in the previous indictment. He will do this because
as a general rule it is oppressive to an accused for the prosecution
not to use rule  where it can properly be used. But a second trial
on the same or similar facts is not always and necessarily oppressive,
and there may in a particular case be special circumstances which make
it just and convenient in that case.</p>
</blockquote>
<p><a href="https://www.cps.gov.uk/legal-guidance/abuse-process" rel="noreferrer">The practical application of this rule is clarified by guidance from the Crown Prosecution Service</a>:</p>
<blockquote>
<p>Generally, [a defendant] cannot be tried therefore for a crime in respect of
which he has previously been acquitted or convicted or in respect of
which he could on some previous indictment have been lawfully
convicted. However, for the ordering of a re-trial for a number of
limited serious offences, where new and compelling evidence comes to
light, under Part 10 Criminal Justice Act 2003[...]</p>
<p>For the [<em>Connelly</em> rule] to apply, the offence charged in the second indictment
must have been committed at the time of the first charge, e.g. a
conviction or acquittal for assault will not bar a charge of murder if
the assaulted person later dies. In all cases, the earlier
adjudication must have been upon guilt or innocence resulting from
valid process (and by a court of competent jurisdiction).</p>
</blockquote>

<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a></p>
<h2>Possibly</h2>
<p>The leading authority on this is in Commonwealth criminal law, in <em>Benbrika (Ruling No 3)</em> [2011] VSC 342, the Victorian Supreme Court (State Supreme Courts in Australia have Commonwealth jurisdiction as well as Federal courts) ordered a permanent stay on the prosecution.</p>
<p>In 2009 Benbrika and three others who had been convicted in 2008 on terrorism charges were indicted on the additional charge of conspiring to do an act in preparation for, or planning, a terrorist act (<em>Criminal Code</em> (Cth) ss 11.5 and 101.6). The accused applied for a permanent stay on a number of grounds and were successful on the basis that the trial was so significantly oppressive that it amounted to an abuse of process.</p>
<p>T Forrest J said at [9]:</p>
<blockquote>
<p>The point at which a proposed trial becomes incurably oppressive at its root level is necessarily a question of fact and degree. Ultimately it requires an intuitive assessment of the combination of circumstances on both sides of the balancing process. If the point is reached, then it is the trial judge's duty to stay the trial permanently ...</p>
</blockquote>
<p>The matters his Honour took into account in <em>Benbrika 3</em> were: the avoidable nature of the second trial (which is at the heart of the OP), the financial cost to the community, the poor circumstances in which the defendants were remanded for the first trial, the overlap of evidence and the low level of additional unpunished criminality.</p>
<p>As a matter of law, an oppressive trial must be permanently stayed. Whether a particular trial is oppressive is a matter of fact.</p>
