Director of Public Prosecutions v Wentworth

[1996] QCA 333

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4118 of 1996

Brisbane

[DPP v. Wentworth]

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)

Appellant

AND:

MARK TIMOTHY WENTWORTH

Respondent

Fitzgerald P.
Davies J.A.

Thomas J.

Judgment delivered 10/09/1996

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS:	INDICTMENT - stay of criminal proceedings - balancing interests - agreement by Crown Law Officer to enter nolle prosequi on certain counts in the indictment if respondent pleaded guilty to certain counts - respondent pleaded guilty and matter adjourned for sentence - subsequent attempt by Crown to enter new indictment.
Counsel:	Mr. P. Rutledge for the appellant Mr. R. Mulholland Q.C., with him Ms. J. Dick for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant J. A. Sherwood & Co. for the respondent
Hearing Date:	2 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4118 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
Thomas J.

[DPP v. Wentworth]

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)

Appellant

AND:

MARK TIMOTHY WENTWORTH

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 10th day of September 1996

On 11 April this year the appellant presented an indictment charging the respondent with

the following offences:

1.       That on the 3rd day of April 1995 at Eight Mile Plains he, with intent to do some grievous bodily harm, unlawfully applied to the person of Judith Mary Reddrop an explosive substance namely petrol;

2.       That on the 3rd day of April 1995 at Eight Mile Plains he, with intent to do some grievous bodily harm, unlawfully applied to the person of Michael David Lindsay Wood an explosive substance namely petrol;

3.       That on the 3rd day of April 1995 at Eight Mile Plains he broke and entered the dwelling house of one Michael David Lindsay Wood in the night-time with intent to commit an indictable offence therein;

4.       That between the 3rd day of April 1995 and 19 April 1995 at Brisbane he attempted, by threatening one Judith Mary Reddrop with detriment if charges against him, Mark Timothy Wentworth, were not discontinued, to pervert the course of justice upon the prosecution of him, Mark Timothy Wentworth, on charges of attempted murder and burglary;

5.       That between the 3rd day of April 1995 and 19 April 1995 at Brisbane he attempted by threatening one Judith Mary Reddrop with detriment if charges were not preferred against one Graham White, to pervert the course of justice upon the prosecution of one charge of burglary.

On 3 May a judge of the Trial Division of this Court ordered that proceedings on the

indictment be stayed. This is an appeal from that part of his Honour's order staying counts 4

and 5. A brief history of this matter is as follows.

There had been an indictment dated 18 September 1995, signed by a Crown Law Officer,

charging the respondent with 13 offences of which those set out above were counts 2, 5, 7, 11

and 12. In late February or early March this year a Crown Law Officer, following discussion

with the female complainant, informed the respondent's counsel that the Crown would be

prepared to accept guilty pleas on counts 2, 5, 7, 11 and 12 in full discharge of the indictment.

That offer was not accepted.

On 6 March 1996 counsel for the respondent was informed by another Crown Law

Officer that the Crown would accept pleas to counts 2 and 5 on the indictment dated 18

September 1995 in full discharge of that indictment. These corresponded with counts 1 and 2

set out above from the further indictment later presented on 11 April. The respondent indicated

that he was prepared to plead guilty to those counts and the Crown Law Officer informed the

respondent's counsel that a nolle prosequi would be entered in respect of the remaining counts

on the original indictment. That indictment was duly presented on 11 March 1996. The

respondent was arraigned and pleaded guilty to counts 2 and 5 and the appellant entered nolle

prosequis in respect of the remaining counts. The learned Judge before whom the respondent

was arraigned then caused the respondent to be asked whether he had anything to say why

sentences should not be passed upon him and then, at the request of the respondent's counsel,

adjourned the matter for sentence to enable a psychiatric report to be obtained with respect to the
respondent.

Apparently the decision of the second Crown Law Officer to accept pleas to counts 2

and 5 and to enter nolle prosequis in respect of the others was made in ignorance of that of the

offer of the first Crown Law Officer to accept pleas of guilty to counts 2, 5, 7, 11 and 12 on the

original indictment. The result was the presentation of the indictment of 11 April proceedings

on which were stayed although it is not clear why the offences (2 and 5 on the original indictment

and 1 and 2 on the further indictment) to which the respondent had pleaded guilty on 11 March

were again included.

Mr. Rutledge for the appellant conceded that the learned primary Judge had power to stay

the second indictment as he did but submitted that his Honour wrongly exercised his discretion

to do so in respect of counts 4 and 5 of that indictment (counts 11 and 12 on the original

indictment). He submitted that whether the appellant, having obtained pleas of guilty to counts

corresponding to counts 1 and 2 above on the basis that counts corresponding to counts 3, 4 and

5 above would not be pursued, should now be permitted to pursue those counts 4 and 5 depended

on whether it was in the interests of justice to allow that to occur; that that question involved

balancing the interests of the community represented by the Crown, on the one hand, against

fairness to the accused on the other; and that the balance in the present case was in favour of

permitting the appellant to proceed to prosecute counts 3, 4 and 5. The learned primary Judge

also considered the question as one involving a balancing of interests and that appears plainly to
be correct[1].

[1]          Walton v. Gardiner (1993) 177 C.L.R. 378 at 395-6; and c.f. Maxwell v. R. (1996) 135

The appellant commonly and quite properly gives consideration to whether all the charges

initially preferred against an accused should be prosecuted and in the process accepts pleas of

guilty to some and does not proceed on others or accepts a plea to a lesser offence than that

charged. That process is one which is plainly in the public interest. However in the course of

that process views may differ as to which charges warrant prosecution as this case illustrates;

one Crown Law Officer thought it appropriate, if the respondent pleaded guilty to five counts

in the earlier indictment, to enter nolle prosequis in respect of the remainder whereas a second

Crown Law Officer thought it appropriate if the respondent pleaded guilty to only two such

counts to enter nolle prosequis in respect of the remainder. It is true that the second was unaware

of the decision made by the first but it is not suggested that he did not reach a considered view

or, indeed, that his view was wrong. The appellant's submission went no further than that the

second Officer was mistaken in not adverting to, or not coming to the same conclusion as the

decision made by the first.

That process would be put at risk if, merely because one opinion is preferred to another,

the appellant could depart from a decision made after it had been conveyed to an accused and he

or she had acted on it by pleading guilty. No additional factor was relied on to demonstrate any

public interest in now proceeding in accordance with the opinion of the first Crown Law Officer,
other than the general public interest in the conviction of those guilty of crimes.

Moreover there can be no doubt that to allow counts 4 and 5 to proceed would place the

respondent in jeopardy of a higher sentence than he now faces. The evidence reveals nothing of

a disturbing character in relation to the second prosecutor's decision on which the respondent

acted. No attempt was made to suggest for example that the Crown case on each or any of the

various charges was particularly strong, or that any special factor exists over and above the fact

that two prosecutors hold different opinions over the desirability of the arrangement, and that the

second prosecutor failed to consult with the complainant before making the arrangement. It is

not irrelevant to note the circumstance that the setting aside of the arrangement, and the taking

of further steps suggested by the Crown to nullify the pleas followed presumably by trials on

counts 1, 2, 4 and 5 would be likely to involve him, or the community if he is receiving Legal

Aid, in further expense.

It is unnecessary to consider whether, if that occurred, the respondent, notwithstanding

the allocutus, could now withdraw his pleas[2] or, if he could, whether admissions implied in those

[2]            As to which see Maxwell supra at 6-7, 14, 15, 17; Re Shillingsworth [1985] 1 Qd.R. 537

pleas could nevertheless be used against him. The factors already referred to demonstrate that

the public interest in this case is in preventing the appellant from departing from the course

which he has taken.

In our view therefore the appellant has failed to show that the learned primary Judge was

wrong and the appeal should therefore be dismissed.

A.L.R. 1 as to granting leave to the prosecution to withdraw acceptance of a plea of guilty.

at 543; Collins (1994) 76 A.Crim.R. 204 at 210; R. v. Phillips and Lawrence [1967] Qd.R. 237 at 288-9.