Attorney General's reference under s 693A of the Criminal Code [2002] WASCA 242

Reported Decision:	(2002) 26 WAR 197
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 242
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:85/2002	Heard:	6 AUGUST 2002
Coram:	MALCOLM CJ WALLWORK J FITZGERALD AJ	Delivered:	30/08/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Question answered in the negative
Category:	A
PDF Version

Catchwords:	Criminal law and procedure Plea of guilty entered to unlawful wounding as an alternative to unlawfully attempting to kill Plea accepted by trial Judge although prosecution declined to accept in satisfaction of the indictment Consideration of lesser offence recorded Whether trial Judge should act on the plea where it is unnecessary to ensure fairness to the accused or prevent an abuse of process
Legislation:	Criminal Code (WA) s 693A
Case References:	Maxwell v The Queen (1995) 184 CLR 501 R v Collins; ex parte Attorney General (1996) 1 Qd R 631 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : Attorney General's reference under s 693A of the Criminal Code [2002] WASCA 242 CORAM : MALCOLM CJ

WALLWORK J

FITZGERALD AJ

HEARD : 6 AUGUST 2002 DELIVERED : 30 AUGUST 2002 FILE NO/S : CCA 85 of 2002 MATTER : Attorney General's reference under s 693A of the Criminal Code EX PARTE

Catchwords:

Criminal law and procedure - Plea of guilty entered to unlawful wounding as an alternative to unlawfully attempting to kill - Plea accepted by trial Judge although prosecution declined to accept in satisfaction of the indictment - Consideration of lesser offence recorded - Whether trial Judge should act on the plea where it is unnecessary to ensure fairness to the accused or prevent an abuse of process

Legislation:

Criminal Code (WA) s 693A

(Page 2)

Result:

Question answered in the negative

Category: A

Representation:

Counsel:

Mr R E Cock QC

Mr M L Tudori

Solicitors:

State Director of Public Prosecutions

Michael Tudori

Case(s) referred to in judgment(s):

Maxwell v The Queen (1995) 184 CLR 501
R v Collins; ex parte Attorney General (1996) 1 Qd R 631

Case(s) also cited:

Nil

(Page 3)

1 JUDGMENT OF THE COURT: On 5 February 2002, Canh Dai Nguyen was arraigned, with thirteen others, on an indictment alleging that he unlawfully attempted to kill Leo Nguyen Le, and alternatively that, with intent to do Leo Nguyen Le some grievous bodily harm, he unlawfully wounded Leo Nguyen Le.

2 The accused pleaded guilty to the alternative count of unlawful wounding with intent to do grievous bodily harm. Although the prosecution declined to accept the accused's plea in satisfaction of the indictment, the trial Judge recorded a conviction and sentenced the accused for that offence.

3 The prosecution does not seek to proceed further against the accused on the indictment, but continues to maintain that the trial Judge should not have convicted the accused on the alternative count when the prosecution declined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WASCA 242
Decision Date: 30 AUGUST 2002

CaseChat Overview and Summary

The case, an attorney general's reference, was heard in the High Court of Australia. The matter was brought before the court for consideration of whether a trial judge should accept a plea of guilty to a lesser offence when the prosecution declines to accept it. The accused had pleaded guilty to the offence of unlawful wounding as an alternative to the more serious charge of unlawfully attempting to kill. The trial judge accepted the plea but did not enter a conviction for the lesser offence as the prosecution would not accept it.

The legal issues before the court were whether the trial judge should proceed with the plea of guilty to the lesser offence when the prosecution declines to accept it, and if this action is necessary to ensure fairness to the accused or to prevent an abuse of process. The court was required to consider the appropriate balance between the rights of the accused and the prosecution's right to determine the charges on which they wish to proceed.

The court found that the trial judge should not act on the plea of guilty to the lesser offence if the prosecution declines to accept it. The court reasoned that this action is not necessary to ensure fairness to the accused or to prevent an abuse of process. The court emphasised that the prosecution has the discretion to determine which charges they wish to proceed with, and this discretion should be respected. The court also noted that allowing the trial judge to act on the plea in such circumstances could lead to an abuse of process by encouraging defendants to plead guilty to lesser offences as a strategic move to avoid the more serious charges.

In conclusion, the High Court answered the question referred to it in the negative. The court held that the trial judge should not act on a plea of guilty to a lesser offence when the prosecution declines to accept it. The court's decision reinforces the importance of respecting the prosecution's discretion in determining the charges on which they wish to proceed.

Orders

Orders of the court

Question answered in the negative

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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