100% inspired by Yakuza Lost Judgement.

Bob is accused of assaulting Alice at X o'clock, with video evidence. It goes to trial, and Bob is successfully convicted.

Later on, strong evidence comes up of Bob committing the murder of Mark at X o'clock. (e.g. security camera footage + DNA evidence).

How can this be handled? Will Bob's original sentence (for assaulting Alice) have to be overturned before he can be tried for the murdering of Mark? Can someone in jail even be tried for something else while they're already in jail?

P.S.: For the original context: Alice was in cahoots with Bob. Alice said Bob did the crime, and Bob admitted to it. Furthermore, Bob was trying to make a mockery of the justice system by showing how, even though he obviously committed the murder of Mark, he would just stay in for short sentence over the fake assault of Alice.


2 Answers 2


Bob will be convicted if he is found guilty beyond reasonable doubt.

Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder.

His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case.

Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder.

Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe.


The second charge/conviction would not be precluded, but the evidence that comes out could help the accused establish that the first was a wrongful conviction.

One could apply for review as a wrongful conviction

If the Crown introduces evidence at the second trial that clearly establishes innocence for the first conviction, there is path for review by the Minister of Justice as a wrongful conviction. The new evidence would very likely meet the threshold for being "new and significant" in that it was not before the court in the first trial and would have affected the verdict if it had been.

Autrefois convict does not apply

The second prosecution would only be precluded if the second charged offence was for the very same "delict."

For example, if A is involved in a scheme to get someone's money, and A is convicted of conspiracy to defraud, A could not be later (or at the same time even) be convicted of conspiracy to steal based on those very same acts.

However, the principle of autrefois convict does not prevent a charge or conviction of a completely different offence, with different elements or different facts. For example, if A was convicted of assaulting B, that does not preclude a later conviction for theft from B, even if that theft happened at the same time. Likewise, a conviction of an assault of B does not preclude a conviction of an assault of C.

These principles are explained in Kienapple v. R., [1975] 1 S.C.R. 729.

Issue estoppel does not apply

Regarding the risk of inconsistent verdicts, there is a principle of issue estoppel in Canadian criminal law. If an issue was decided in the accused's favour in a first trial that resulted in acquittal, the Crown is forever bound to that fact. See R. v. Mahalingan, 2008 SCC 63:

[22] ... issues which were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel.

[23] It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies.

In the circumstance you describe, the accused was not acquitted in the first trial, so the form of issue estoppel developed so far in Canadian law would not be available.

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