Attorney General's reference under s 693A of the Criminal Code [2002] WASCA 242
| (2002) 26 WAR 197 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 242 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:85/2002 | 6 AUGUST 2002 | |
| Coram: | MALCOLM CJ WALLWORK J FITZGERALD AJ | 30/08/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Question answered in the negative | ||
| 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
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…
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- [2002] WASCA 242
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CaseChat Overview and Summary
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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Legal Principle Established
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