Dwyer v R.

A plea of autrefois convict is confined to a later charge alleging the same offence in fact and law. It does not extend to a different offence founded on substantially the same facts.

However, a second prosecution should ordinarily be stayed as an abuse of process where it is founded on the same or substantially the same facts as proceedings already concluded. The prosecutor must, by the conclusion of the first proceedings, bring charges or take offences into consideration so as to capture the offender’s known culpability. A later prosecution is permissible only where special or exceptional circumstances make it just.

The relevant factual basis includes admissions on which the defendant was actually sentenced, not merely the terms of the original charge.

Dwyer v R concerned two prosecutions arising from heroin dealing in Honiton. In the first proceedings, the appellant pleaded guilty to possession of heroin with intent to supply and related simple-possession offences. At sentence, he publicly admitted regular dealing over approximately six months to fund his and his partner’s addiction. The Recorder imposed a suspended sentence with a drug rehabilitation requirement.

After further telephone and automatic-number-plate-recognition evidence was obtained, the appellant was charged with conspiracy to supply heroin over substantially the same six-month period. HHJ Cottle rejected his plea of autrefois convict and his application to stay the indictment. The appellant then pleaded guilty and Butterfield J sentenced him to four years’ imprisonment.

The central issue was whether the later conspiracy indictment was oppressive because it was founded on substantially the same facts as those on which the appellant had already been sentenced.

1. Appeal allowed. The court quashed the conviction for conspiracy to supply heroin. The later indictment should have been stayed as an abuse of process.

2. The plea of autrefois convict was unavailable. Following Beedie [1997] 2 CR App R 167 and Connelly v DPP [1964] AC 1254, the plea applies only where the later indictment charges the same offence in fact and law. Possession with intent to supply and conspiracy to supply were distinct offences.

3. Nevertheless, the court had a discretionary power to stay a second prosecution. A later prosecution founded on the same or substantially the same facts as concluded proceedings is ordinarily oppressive unless special or exceptional circumstances justify it. The relevant question is the state of affairs known to the prosecutor when the first proceedings were concluded, rather than only what was known when they were commenced.

4. The appellant had been sentenced on the factual basis of his public admissions of regular dealing over six months. Those admissions went far beyond the single count but were properly capable of informing the assessment of his culpability for possession with intent to supply. What mattered for the abuse analysis was that the Recorder had actually sentenced him on that basis.

5. The prosecution’s ultimately accepted case was that the appellant received about 0.410kg of heroin in 29 deliveries during the same period. That did not allege a materially different role, quantity, value, or period of dealing from that already admitted and taken into account at sentence. The assertion made below that he had received almost daily deliveries, totalling about 2.5kg, was unsupported by evidence and had misled the earlier judges. The exceptional leniency of the first sentence was not a special circumstance permitting the prosecution a further opportunity to prosecute.

• Court of Appeal (Criminal Division): Allowed the appeal, held that the conspiracy indictment was an abuse of process, and quashed the conviction.

• Exeter Crown Court: On 11 February 2011, HHJ Cottle rejected the plea of autrefois convict and refused to stay the conspiracy indictment. Following a guilty plea, Butterfield J sentenced the appellant on 29 July 2011 to four years’ imprisonment.

• Exeter Crown Court: On 12 March 2010, Miss Recorder Munro QC sentenced the appellant for possession with intent to supply heroin and related possession offences, imposing a suspended sentence and a drug rehabilitation requirement.