Case: Green v United States [1957] USSC 146 ; 355 US 184 (1957)
Outcome: distinguished
Gould addresses an argument relied on by ASIC before the Tribunal and accepted by it, namely, that because it was Mr Gould who chose to apply to the Tribunal for review of the Board's decision, ASIC should not be prevented from re-agitating the charges rejected by the Board. Mr Gould submits that the Tribunal should have followed the approach of the United States Supreme Court in Green v United States [1957] USSC 146 ; 355 US 184 (1957). In that case, the defendant faced alternative charges of first and second degree murder. The jury returned a verdict of guilty on the charge of second degree murder and did not return a verdict on the first charge. The defendant successfully appealed and the Court of Appeal ordered a retrial. At the retrial, the defendant was again charged with first degree murder. The trial judge ruled that the rule against double jeopardy did not apply. The defendant was convicted of first degree murder. He appealed. The opinion of the Supreme Court was given by Black J who said at 187-188: ... The State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty. Later, at 193, Black J stated: Whatever may be said for the notion of continuing jeopardy with regard to an offense when a defendant has been convicted of that offense and has secured reversal of the conviction by appeal, here, Green was not convicted of first degree murder, and that offense was not involved in his appeal. If Green had only appealed his conviction of arson and that conviction had been set aside, surely no one would claim that he could have been tried a second time for the first degree murder by reasoning that his initial jeopardy on that charge continued until every offense alleged in the indictment had been finally adjudicated. Reduced to plain terms, the Government contends that, in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defence of former jeopardy not only on that offense, but also on a different offense for which he was not convicted and which was not involved in his appeal. Or, stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years' imprisonment. As the Court of Appeal said in its first opinion in this case, a defendant faced with such a 'choice' takes a 'desperate chance' in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Mr Gould had no finding against him before the Board on Contentions 2.1, 6.5, 6.6 and 6.7A, and should not, according to his submission, be put in jeopardy on those charges in his application for review to the Tribunal. ASIC submits that there was no oppressive conduct or unfair dealing by it in relation to Contentions 2.1, 6.5, 6.6 and 6.7A. ASIC relies on a point made by the Tribunal in rejecting Mr Gould's interlocutory application, namely, that situation before the Tribunal was materially different from that which had been before the Board. Before the Board, the application to amend was made at the end of a proceeding. Before the Tribunal, ASIC was giving notice through its SOFAC of allegations at the outset of a new proceeding. The United States case of Green v United States is distinguishable. The primary objective of the sanctions for which s 1292(2) provided was to protect the public where a person was shown not to be a fit and proper person to remain registered as a liquidator and as such to perform the duties of a liquidator or administrator. The criminal sanction for first degree murder is quite different in that the right of the accused to be treated fairly assumes the greatest importance. In the case of the disciplinary proceedings against Mr Gould, the protection of public was the dominant consideration. This factor also tells against other submissions made by Mr Gould, such as his submission asserting delay and oppression. Question 24 (set out at [260] above) should be answered "no".