DPP v Collins - [2004] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 183 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
BRETT ANDREW COLLINS

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JUDGES:	WARREN, C.J., WINNEKE, P. and ORMISTON, J.A.
WHERE HELD:	HORSHAM
DATE OF HEARING:	23 August 2004
DATE OF JUDGMENT:	12 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 179

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CRIMINAL LAW – Crown Appeal – “Trafficking” in amphetamines – 12 months – Appeal dismissed.

CRIMINAL LAW – Autrefois convict – Presentment alleging greater and lesser offences arising out of same circumstances – Whether accused’s plea of guilty to lesser offence bars trial for greater offence.

CRIMINAL LAW – Arraignment – Practice and procedure – Procedure to be followed where plea of not guilty entered to more serious offence, but guilty to lesser offence – Practice to be followed where Crown not prepared to accept plea of guilty in satisfaction of presentment – R. v. Broadbent [1964] V.R. 733 followed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. C.G. Hillman, S.C. and Ms. E.J. Gardner	Ms. Kay Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr. O.P. Holdenson, Q.C.	Kerry R. Clancy

WARREN, C.J.:

The circumstances and conduct of the proceeding below were unusual for the reasons explained by the learned President and which I have had the benefit of considering in draft form. Whilst the trial judge was in error in dealing with the respondent on count 3 there was no bar to the trial of the respondent on count 2. Further, there was no challenge by the respondent to the conviction on count 3. I agree with the reasons of the President that the appeal should be dismissed.

WINNEKE, P.

On 9 June 2004, the respondent Brett Andrew Collins (“the respondent”) was presented in the County Court at Melbourne on three counts alleging:

(1)Possessing money which is the proceeds of crime (known as “money laundering”) contrary to s.122 Confiscation Act 1997.
(2)Trafficking in a drug of dependence (methylamphetamine) on 10 October 2002, contrary to s.71AC of the Drugs Poisons & Controlled Substances Act 1981.
(3)Possessing a drug of dependence (methylamphetamine) on 10 October 2002, contrary to s.73(1)(c) of the Drugs Poisons & Controlled Substances Act 1981.

Upon application made prior to arraignment, the trial judge “stayed” the prosecution of count 1. This order was made on 9 June 2004, and the further proceedings adjourned until the following day.

On 10 June, the respondent was arraigned in the presence of the jury. He pleaded “not guilty” to the count of ”trafficking” alleged in count 2, but “guilty” to the count of “possession” alleged in count 3. A jury was then empanelled, and the respondent put in their charge on count 2; that is the count to which he had pleaded “not guilty”. The transcript of proceedings does not clearly reveal what occurred with respect to count 3; that is, the count of “possession” to which the respondent

had pleaded “guilty”. (I will return to that matter hereafter.) Nevertheless, the Judge’s Associate recorded the respective pleas on…

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.

Continue reading DPP v Collins

Details

AGLC: Director of Public Prosecutions v Collins [2004] VSCA 179
Case: [2004] VSCA 179
Decision Date: 12 October 2004

CaseChat Overview and Summary

The case of DPP v Collins was heard by the Victorian Court of Appeal, involving the defendant Collins who was charged with trafficking in amphetamines. The Crown sought to appeal against the 12-month sentence imposed on Collins, contending that it was too lenient. The central legal issue revolved around whether Collins' previous guilty plea to a lesser charge precluded him from being tried for a more serious charge arising from the same circumstances. Additionally, the court had to consider the appropriate procedure when a defendant pleads not guilty to a more serious offence but admits guilt to a lesser offence, particularly when the Crown is unwilling to accept the guilty plea as a resolution.

The court examined the principle of autrefois convict, which prevents a person from being tried again for the same offence after having been acquitted or convicted. However, this principle does not apply to lesser included offences. The court followed the precedent set in R v Broadbent, which provides guidance on the procedure to be followed when a defendant pleads not guilty to a more serious charge but admits guilt to a lesser offence, and when the Crown refuses to accept the plea. The court concluded that Collins' plea of guilty to the lesser offence did not bar the trial for the more serious offence as they were not the same offence. The court also held that the trial judge should have allowed Collins to plead guilty to the lesser offence, but the error did not result in a miscarriage of justice.

The appeal was dismissed, and the 12-month sentence remained in place. The court acknowledged that the sentence was on the lower end of the spectrum for such offences, but it was not so manifestly inadequate as to warrant intervention. The court did not find that the trial judge had erred in principle or made a significant error in the exercise of discretion. Therefore, the sentence was affirmed, and Collins' conviction and sentence were upheld.

Orders