Maxwell v The Queen
[1995] HCATrans 326
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S61 of 1995
B e t w e e n -
BRIAN WILLIAM MAXWELL
Appellant
and
THE QUEEN
Respondent
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 1995, AT 10.16 AM
Copyright in the High Court of Australia
MR T.A. GAME: If the Court pleases , I appear for the appellant. (instructed by T. Murphy, Legal Aid Commission of New South Wales)
MR R.N. HOWIE, QC: If the Court pleases, I appear with my learned friend, MR P.G. BERMAN, for the respondent Crown. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))
DAWSON J: Yes, Mr Game.
MR GAME: If the Court pleases, I hand up my outline of argument.
DAWSON J: You might just give us few moments to glance through that. Yes, Mr Game.
MR GAME: If the Court pleases. I propose to commence by taking the Court to the history of precisely what occurred after the plea was taken. Firstly, at page 3 of the appeal book - - -
DAWSON J: We have read the appeal book.
MR GAME: I will do it fairly briefly, but I will just take the Court through what took place because it is of some importance to identify precisely what stage of the proceedings it was that his Honour purported to reject the plea because, on my argument, a series of events had occurred which were of such consequence that it had gone beyond any question of rejecting the plea as such.
DAWSON J: Yes.
MR GAME: And those stages were that there had been an indictment for murder under section 19A, an acceptance of a plea under section 24 to manslaughter, the acceptance ‑ ‑ ‑
DAWSON J: Section 24 of the - - -?
MR GAME: Of the Crimes Act. Diminished responsibility is provided for by the ‑ ‑ ‑
TOOHEY J: Just before you leave section 24, Mr Game, what do you mean “acceptance of a plea”?
MR GAME: The Crown accepted, pursuant to section 394A of the Crimes Act, being the critical provision in this case, provides:
Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.
TOOHEY J: That suggests that chronologically the prisoner pleads and then the Crown elects to accept the plea. Is that the way in which it happens?
MR GAME: Yes. The charge was laid under section 19A of the Crimes Act for murder ‑ murder which is defined in section 18 ‑ and then section 23A is a statutorily created basis for a verdict for manslaughter under section 24, naturally enough for a form of voluntary manslaughter, all involuntary manslaughters being common law alternatives which could be found under section 24 but not by virtue of any statutory provisions, but simply because they are common law alternatives, for example, unlawful and dangerous act manslaughter or manslaughter by gross criminal negligence.
Once the plea was accepted, the plea which was accepted was to an offence under section 24, although it was made plain enough that the basis of the acceptance was that this was a case of diminished responsibility. The judge then received evidence ‑ ‑ ‑
TOOHEY J: I am sorry to interrupt you again, but section 24 is really a penalty provision, is it not?
MR GAME: So is section 19A, but section 24 is the provision which a person who is indicted for manslaughter, the indictment will say section 24.
TOOHEY J: But is there not a section which substantively creates the offence of manslaughter, even if it is a residual sort of provision?
MR GAME: No, your Honour. Section 18(1)(b), I beg your pardon, yes. Section 18(1)(b), but the indictment would read section 24 just as in an indictment for murder would read section 19A.
TOOHEY J: But that still carries you back to common law, section 18(1)(b), does it not?
MR GAME: The reason is that the New South Wales Crimes Act is not a codification; it is substantially a common law based statutory provision, the same as, for example, the South Australian Criminal Consolidation Act.
TOOHEY J: Well, that would not be true, would it, of murder; I mean, murder presumably has to be found within section 18(1)(a), but then any other unlawful homicide, I take it you are saying, has to be picked up according to the common law.
MR GAME: Yes, your Honour.
DAWSON J: Except that you find diminished responsibility defined.
MR GAME: Yes, and you find provocation defined under section 22, so as I understand it, all species of voluntary manslaughter are statutorily provided for and all species of involuntary manslaughters are to be found at the common law.
DAWSON J: Yes.
MR GAME: I should also mention the allocutus was not read and the reading of the allocutus in New South Wales occurs in some circumstances, but not in others, and it is certainly not regarded as an essential step in the procedure, although in other States it is and in code States it is referred to but again it is not essential.
Now the evidence was received, and that is on pages 3 and 4, and then counsel addressed on sentence. In my submission, the fact that counsel addressed on ‑ ‑ ‑
DAWSON J: Had the accused been arraigned at this stage?
MR GAME: Well the accused was arraigned on page 3 and he pleaded not guilty to murder, but guilty to manslaughter.
DAWSON J: The Crown announced that they accepted the plea to manslaughter on the basis of diminished responsibility.
MR GAME: Yes, that is true, but the words were never said, “You have been found guilty by your own confession. Is there anything that you wish to say?” But that is really, in the context of abolition of writs of error and so forth, an empty formality in practical terms.
TOOHEY J: Except that the record would have to show something.
MR GAME: The record does not show anything other than the plea was entered. This is on page 2:
Not guilty of murder but guilty of manslaughter ‑ Accepted by Crown in full satisfaction of indictment.
DAWSON J: This is probably going ahead, but where does the conviction take place, if there is a conviction?
MR GAME: In my submission, at the very latest, the conviction occurred on page 11, when his Honour said:
I will remand the prisoner in custody until Friday 29 October for sentence.
There are cases which would suggest that events which had occurred previously were such that a conviction had already occurred, for example, the judge receiving submissions on sentence. The Queensland case of Collins suggests that receiving submissions on sentence itself would amount to the judge’s acceptance of the plea, and there are some suggestions in Griffiths’ Case that even possibly an earlier stage. But certainly, on my argument, and on the authority of Griffiths, which I will come to in just one moment, when the judge said, “I will remand the prisoner for sentence”, he had been convicted.
DAWSON J: This procedure is something I am unfamiliar with, because my memory ‑ this really has to go back a little distance ‑ suggests that it was always said, “You have been found guilty”, or, “You have pleaded guilty to” whatever it is and, without recording the precise form of words, “Is there anything you wish to say in relation to sentence?” That is not said in New South Wales.
MR GAME: Sometimes it is said ‑ ‑ ‑
DAWSON J: That is what you call the allocatur?
MR GAME: Yes, your Honour. In South Australia it is always read immediately after the plea and before any evidence.
DAWSON J: Unless it has changed in Victoria it is always read there, too.
MR GAME: And it is always read after the jury’s verdict.
DAWSON J: In New South Wales?
MR GAME: In South Australia. In New South Wales some judges have it read after the verdict; some judges do not. The significance of the allocutus, historically, was that it enabled a prisoner to seek benefit of clergy or seek writs of error, which have been abolished by the Criminal Appeal Act. It is very much misunderstood because it is treated as being an invitation to lead evidence on sentence.
TOOHEY J: Is that not the point at which the antecedents report is ordinarily handed up? Again I am delving back into my recollection.
MR GAME: That is certainly the case in certain jurisdictions. In my own experience in South Australia it was certainly the case that the allocutus, as I said, was read straight after the plea was taken.
McHUGH J: But it has to be in South Australia because the writ of error has never been abolished in South Australia.
MR GAME: I am sorry, your Honour, that may be the reason why that was an invariable practice.
McHUGH J: Yes.
MR GAME: It would certainly not be true to say that it is regarded as an essential practice in New South Wales. Chief Justice Barwick, in fact, referred to the informality with which sentence proceedings took place in New South Wales in his judgment in Griffiths’ Case. There are cases - and I will not read from them - for example, Shillingsworth and Rear, which are on my supplementary list of authorities, which suggest that the allocutus, itself, is not an essential part of the procedure.
DAWSON J: But you could only perceive to consider sentence on the basis there was a conviction, could you not?
MR GAME: Naturally, your Honour, yes.
McHUGH J: Your submissions, your outline, seem to throw all the weight of the argument on the fact that you say that the appellant was convicted, but conviction itself has no legal consequences except as a step to judgment. In other words, conviction, or verdict may make you liable to the judgment but it, itself, creates no res judicata or no issue estoppel, does it? It is the judgment, and in the criminal field, it is the sentence which is the judgment. In the old days of attaint it was upon the sentence that the person became attainted, not upon conviction for murder, for example.
MR GAME: Your Honour, the conviction must have consequences, otherwise it is an empty formality to speak of their ‑ ‑ ‑
McHUGH J: It certainly has consequences because, once you are convicted, you then become liable for the sentence and for the penalties. One cannot change a plea after sentence but you can after conviction. Even when somebody is remanded for sentence, in the discretion of the judge the plea can be changed.
MR GAME: Your Honour, it is necessary, in my submission, to identify with absolute precision what those circumstances might be. The cases very narrowly construe what those circumstances are. They are really about cases where subsequent events have demonstrated that the plea which was itself the basis for the confession was either a plea which did not demonstrate truly an acceptance of guilt or that on the admitted facts there could not be a conviction.
So that something has occurred which has undermined the basis for the conviction. But, in any case, the cases about setting aside pleas after conviction but before sentence are cases which predate the Criminal Appeal Act and, in my submission, have to be viewed in that context.
The conviction itself in these circumstances becomes the source of the liability and any complaint that the appellant has about the conviction must be taken to the Court of Criminal Appeal where there are larger powers, obviously, powers to set aside convictions in any circumstances where a miscarriage of justice has been demonstrated. But in my submission, you cannot translate those sorts of circumstances onto a case such as this when what one is talking about is not setting aside the plea but, in effect, quashing the conviction, allowing the Crown to withdraw its acceptance of the plea and then allowing the Crown to proceed on an indictment for murder.
In a sense, to speak of it in terms of allowing the.....terms of rejecting the plea is to take it in reverse order. It is not a question of rejecting the plea at all. What occurs is, the judge makes, in short terms, a series of judgments which, effectively, make that original plea of no moment other than the admission which it contains as to the elements of manslaughter which the Crown could tender against the defendant at a trial, for example, could tender against the defendant at a trial if the defendant raised an issue of involuntariness.
So the plea would continue to have significance as an admission, but what the defendant loses and what is so critical about this is what the defendant loses by these series of events is that the Crown is free to proceed with a charge for murder.
TOOHEY J: Yes, but that might highlight the particular situation, but if you can get away from that situation for a moment to just a standard one in which a person pleads guilty to the charge and the judge hearing the plea in mitigation has doubts about the validity of the plea, or that the accused necessarily understood the plea, do you say that in those circumstances the judge cannot reject the plea and direct the Crown to proceed as on a plea of not guilty?
MR GAME: Your Honour, in my submission, it depends at what stage of the proceedings that actually occurred, but if, for example, an intellectually disabled defendant had pleaded guilty and then was giving evidence and said, “Well, I’m not guilty. I didn’t do this crime”, then it would seem a strange result if the judge could not set aside the plea then, but at that point, it may be that there has been no conviction; that would be my first point, but the second point is: what has happened there is that the prisoner’s evidence has shown that the confession - if there was a conviction, which was the basis of the conviction, was not a confession made in consciousness or with an intention.
TOOHEY J: That may well be, but as Justice McHugh pointed out to you, the thrust of your submission seems to be directed at the consequences of the conviction. If that is so, does that principle apply right across the board, including the situation which I just put to you, or do you want to introduce some qualification, or there is an acceptance by the Crown of some lesser charge? It seems to me, in a way, you are turning it on its head a bit.
MR GAME: Yes. Your Honour, it is not the only thrust of my argument but it is the commencing point in a sense because, on my argument, it is of great importance to identify, and it may be of great importance for cases such as this to identify at what stage of the proceedings it is that circumstances such as this are occurring.
TOOHEY J: But do you not want to say as part of your case that it was simply not within the power of the trial judge to do anything once the plea had been entered?
MR GAME: It is part of my argument that it is no part that the judge has - and I thought that I made that clear in the subsequent page, page 2, that once the plea has been accepted the judge has no power to reject the plea if what is being rejected is the rejection upon a particular basis which is that the person should be charged with a more serious offence.
McHUGH J: What about this illustration which is not unknown in the criminal courts: a person pleads guilty to an offence; the judge remands the person for sentence and the judge then, upon a closer examination of the facts, comes to the conclusion that there was no offence in point of law. Now, in those circumstances must the judge then proceed to sentence the person on the plea or has he got the right to allow it, to advise and inform the accused of his right to withdraw the plea?
MR GAME: I would have to argue that the judge in those circumstances had no power to allow the plea to be set aside.
McHUGH J: And this principle would apply in magistrates’ courts, and particularly in some classes of offence, in what used to be suspected persons’ offences, people would sometimes plead guilty in circumstances which did not constitute the offence.
MR GAME: Quite, your Honour, but in my submission, as I said before, you cannot simply transpose those kinds of circumstances on to cases such as this because what is demonstrated in that case by subsequent events is that the plea and the facts that were tendered did not demonstrate the liability which was asserted. Your Honour, there is a problem with the example that you gave because the plea itself in many circumstances will cure any defect in the evidence which the Crown leads. Normally, it would not be appropriate for a judge to then embark upon an investigation of the facts to see whether or not the accused is actually guilty on the facts.
McHUGH J: Two areas where it would appear from time to time are cases of larceny where the property had been abandoned and cases, in New South Wales, of a person being reasonably suspected of being involved in whatever is the charge. In both sets of cases, people with obviously guilty intentions would plead guilty to an offence where the actus reus had not been established.
DAWSON J: But we are not really talking about changing a plea here, are we? We are talking about a situation in which the Crown has agreed to charge a person in a particular way and to accept a plea and it now seeks to withdraw from the bargain which it has made, or whether the judge can force the Crown to do so.
MR GAME: Yes, the point I was attempting to make was that in the examples that Justice McHugh gave, they are examples about where a plea or the facts with the benefit of hindsight do not ground the conviction, whereas here, one is talking about really a series of events which you come at from the position of the person in this case ‑ ‑ ‑
McHUGH J: But, is not the judge saying in this case, “These facts don’t constitute manslaughter, they constitute murder, prima facie and, therefore, I am not going to sentence this accused on the basis of manslaughter when it seems to me, in my mind as a matter of law, it’s murder”? It is not really a matter of law, I suppose.
MR GAME: Your Honour, once you are into that area, then that really demonstrates the flaw of the whole proposition that the judge can enter into this process because that happens every day of the week. I mean, cases like De Simoni are just one of a myriad examples of cases where the crime charged is substantially less than the criminality establishes. Now, nobody would dispute that the appellant in this case was guilty of manslaughter at least. In fact, if the relatives of the deceased in a case such as this brought a Compensation to Relatives action in the Supreme Court, it would not be necessary for them to allege a tort that was anything more than a tort that established an assault and battery or whatever. It would not be necessary to establish anything at any higher level than grounded liability.
The very proposition that a person is really guilty of a more serious offence ‑ and that is what this comes down to is the judge is really saying, “This person is really guilty of murder and I’m going to do something which prevents you, regardless of the attitude of the Crown”, which was that the Crown went along with it in this case for particular reasons, but Brown is a case where the Crown did not go along with it and the Court of Criminal Appeal said, “Well, the Crown doesn’t have to go along with it and the judge can’t stay an indictment and force a charge for a more serious offence”. In my submission, as soon as you get into that area, it demonstrates that the Court has no role in ‑ ‑ ‑
McHUGH J:But why? I mean your argument seems to take the view that the judge is some cypher,the referee, dealing with the dispute between the Crown and the accused. In one sense that is true, but in another sense the judge is there to protect the public interest, and particularly in this day and age when there is a lot of criticism of pleas being taken in respect of offences which are much graver, then there is the subject of the indictment.
MR GAME: Your Honour, one might ask rhetorically, how does a judge ever approach that problem and that, in my submission, the judgment of the Court of Criminal Appeal demonstrates - and I am really jumping ahead of myself by a long way now, but I will come to this straight away now - the serious problems that this throws up.
McHUGH J:I know. That is the reason why a judge would rarely want to intervene, but this judge, on the facts, thought that this was a case of cold‑blooded murder, as opposed to manslaughter under diminished responsibility. That being so, surely it is a strange result if the judge has really got to accept the plea of manslaughter, particularly when the Crown wants to withdraw its agreement.
MR GAME: Well, your Honour, in my submission, firstly I was going to take the Court’s attention to that part of the Court of Criminal Appeal’s judgment where it says that if the judge conscientiously cannot accept the plea - and in my submission, there are serious problems with that, but I will just come back to the approach which the trial judge took in this case - the trial judge took the view that on the view that he took it was not manslaughter, it was murder, but the approach he took to this question, in my submission, was wholly erroneous, because he thought that it rested with him to be satisfied, on the balance of probabilities, that a case of diminished responsibility was established, and that is really the reasoning, and the whole of the reasoning, which leads him to the conclusion that he cannot sentence.
TOOHEY J: Because the argument against you, put at its largest, I suppose, does not really turn on section 394A at all; it would apply to any situation in which a person pleaded guilty to a charge and the judge thought that the circumstances warranted a more serious charge.
MR GAME: Yes. In my submission, once you ‑ ‑ ‑
TOOHEY J: There is no particular reason for singling out section 394A as the touchstone of where this principle operates.
MR GAME: Precisely. If you accept the principle which the Court of Criminal Appeal enunciated, which is that if a judge cannot conscientiously accept the facts and that it is for the judge to determine, at the top of page 82:
the onus of proving facts which make out a case of diminished responsibility -
which, in my submission, is erroneous, just as the trial judge’s approach to that question was erroneous because the plea established the liability for manslaughter and, if there was a conviction - and in my submission there was - then the conviction became the source of the liability. In a sense that misunderstands the sentencing process. If one accepts this argument which really is at the heart of the judgment of the Court of Criminal Appeal that judges do not have to agree with the verdict - sorry, if:
a judge can be forced to sentence an offender on a factual basis which the judge cannot conscientiously accept -
the bottom of page 81. As your Honour Justice Toohey points out, if you accept that, then we are not talking about section 394A at all. We are talking about every case, cases such as Brown, for example, where the judge stayed the proceedings because he thought that a more serious offence had been established.
Indeed, it is hard to see why a judge should - and how would a judge go about exercising his or her mind as to whether or not they could accept conscientiously the basis. I mean, what if in this case the defence and the prosecution had handed up a short statement of facts saying, “This offence was committed under diminished responsibility. The defendant was suffering from depression at the time. The facts are that he went to the preschool and shot his wife”, full stop.
DAWSON J: Indeed, it could really even follow a verdict of a jury if the conviction does not matter in these circumstances. The judge could say, “Well, look, I just can’t accept that. He shouldn’t be convicted of the lesser offence but the other. I can’t sentence him”.
MR GAME: Quite. What if, for example, in this case there had been a very weak case of diminished responsibility but quite a good case on involuntariness, and the Crown and the defence had agreed to accept a plea to manslaughter and the judge then said, “Well, I can’t find diminished responsibility”. Can the judge then enter into the process of reasoning which in effect throws away the very basis of the verdict?
TOOHEY J: I suppose there are things that the trial judge can do which stop short of refusing to accept the plea. The trial judge can express concern and maybe invite the Crown to consider its position, but that does not amount to an exercise of power, really.
MR GAME: Yes.
DAWSON J: Really what you are saying is ‑ perhaps it is not if you tell me it is not, but ‑ “Look, whatever justification there can be for this course, it can’t be any difficulty in sentencing. A judge just has to cope with that difficulty in many situations, and that is no basis on which you can say that he can take the course which he took here”.
MR GAME: Yes.
DAWSON J: And then the next step is to say. “And what the judge was doing here was exercising, in effect, a prosecutorial function, and that is not the function of a judge”. You may, as Justice Toohey said, try to influence the prosecutor, but ultimately, at common law and certainly under section 394A, that function is vested in the prosecution and the prosecution alone.
MR GAME: Yes. In my submission, he was making two mistakes. First of all, he was treating his position as being analogous to that of the jury and saying, “I the jury could not find this person guilty of manslaughter by diminished responsibility on this evidence”, and then from that step putting himself in the prosecutorial position. So, in my submission, there are two essential errors in the reasoning of the sentencing judge. If I could just take the Court to some aspects of the judgment which demonstrate the first of that. At page 13 of the appeal book, line 25:
they have to realise ‑
this is the doctors ‑
where their role finishes and where the jury’s role commences.
And then at page 18 ‑ question of diminished responsibility ‑ lines 10 to 25:
it is a question of fact to be determined by the tribunal of fact.....It involves a value judgment by the jury representing the community, or by a judge where there is no jury, not a finding of medical fact.
And then at the bottom of page 22:
In any event, assuming I find I was not so entitled, I would require proof by the accused on the balance of probabilities of those matters he intends to rely on ‑
In my submission that is simply not correct. In fact, proving the factual basis by strict proof of a case of diminished responsibility is, from practical purposes, an immensely difficult task because you have to ‑ in this case it was obvious that the prosecution and defence intended it to be done informally; they tendered medical reports that contained history.
DAWSON J: All this was being done in a plea in mitigation of sentence, that is all.
MR GAME: Yes, exactly. It is absolutely critical to distinguish one from the other and this judgment which was delivered, which I have just been reading from, on 29 October, which was the first event in the undoing of all that occurred, really demonstrated that the judge had not correctly appreciated the task that he was now embarked upon.
DAWSON J: The task is no different, is it, from a situation where the accused was charged with manslaughter on the basis of diminished responsibility and pleaded guilty, and you then enter upon questions of mitigation of sentence, and it is not suggested, is it - you would not be suggesting it, but is it suggested in that situation the judge could say, “Well, I refuse to accept the plea of guilty. You must charge him with something else”?
MR GAME: Quite, but in my submission, the significance of section 394A is that it puts the Crown in exactly the same position.
TOOHEY J: There may be, even on your argument, some residual power in the trial judge where the judge is satisfied that there has been an abuse of process in some way, and I shall not even attempt to define it or suggest that it is applicable here, but there may be some sort of power, I do not know, but that is not the situation you are talking about here.
MR GAME: No. I would not question in the context of the arguments I am putting in this Court in relation to this argument the power of a judge to stay an indictment in very special circumstances where ‑ ‑ ‑
TOOHEY J: But we are really talking in that area about the judge staying it on his or her own initiative rather than in the ordinary case where an application for a stay is made by an accused, but that is probably something of a red herring.
MR GAME: Yes. “We are going to plead guilty, but we’re not going to tell you anything about the case and we’re not going to present any evidence”. What is the judge to do then? That error which the judge then made, in my submission, led him into the process - sorry, there is just one other thing that I wanted to refer to. His Honour said at the top of page 13, line 5, “I did not convict him on the last occasion”. In my submission, on the authority of Griffiths, that was clearly wrong.
The proceedings were then stood over until 10 December. On 10 December, at this time, the Crown was armed with another medical report from Dr Shand and, again, another way of testing the arguments in this case is to ask what would have happened if the judge had said nothing but the Crown had turned up on 10 December with a medical report from Dr Shand and said, “We wish to withdraw our acceptance”?
TOOHEY J: That is another point, is it not?
MR GAME: Yes.
DAWSON J: If the accused can withdraw his plea, why cannot the Crown withdraw its acceptance? It is one thing to have the judge entering into this area of debate, but why cannot the Crown? There is no binding contract, is there?
GUMMOW J: There are two questions, one of which, in fact, may be moot, because, in fact, the Crown urged the judge to do what he did. You say the Crown could not do that.
MR GAME: Yes. In my submission ‑ ‑ ‑
GUMMOW J: It was not the judge acting alone; it was the judge acting in response to a submission and eventually was made.
MR GAME: That is true, your Honour. Nevertheless, the question of the Crown - as I said before, what the judge really did here, on my submission, is quash the conviction then allowed the Crown to withdraw its acceptance of the plea. In my submission, say, for example, the Crown had indicted for manslaughter, could the Crown then have entered a nolle prosequi because between conviction and sentence they had been armed with a medical report from Dr Shand, and could they have then indicted ‑ ‑ ‑
DAWSON J: I am not sure they cannot.
MR GAME: In my submission, there is a Privy Council decision of Richards which has its own particular aspects but which says that they can, but in my submission ‑ ‑ ‑
DAWSON J: I had an idea, and you will have to correct me, that you could enter a xxxx nolle right up to the stage of judgment.
MR GAME: I think that is correct, your Honour. The question that would then arise is whether or not the Crown would be embarking on a very risky course because the question would then be whether or not the Crown was free to - in any way, an entering into a nolle would not be a plea in bar so that that would not give rise to a plea in bar in relation to manslaughter. But the question would arise as to whether or not the person was entitled to plead autrefois convict in relation to the murder - the conviction, if there had been a conviction in relation to the manslaughter, and in my submission there would.
The words in section 394A - if I could just take the Court back to section 394A:
the Crown may elect to accept such plea of guilty or may require the trial to proceed -
My argument is that once the Crown has elected to accept the plea, the Crown, in these circumstances, stands in the same position as if they had indicted for the lesser offence, so that no question of withdrawal of election can arise.
TOOHEY J: Are you really talking about withdrawal of election? The argument seems to me to move between the power of the judge to alter the plea - or perhaps that is rather loose language - to reject the plea that has been entered and what the Crown might be able to do. If you look at section 394A, it might be said that because on the entering of such a plea the Crown may elect to accept the plea or require the trial to proceed, suggests that at least at the point of plea having been made there is no conviction by virtue of that fact alone, something else has to happen. You say it did happen by reason of the Crown’s acceptance of the plea. But, it is the power of the Court, is it not, that we are primarily concerned with?
MR GAME: Yes, your Honour.
TOOHEY J: What you say about that, I take it, is that once the plea has been entered, and in terms of section 394, accepted by the Crown where relevant, that is the end of the matter - at least, subject to the possible power of the court to set aside the charge where it is not persuaded that the accused has properly understood the charge or there is some other vitiating factor.
MR GAME: Yes.
TOOHEY J: But your argument is the judge has no power to reject the plea to enable the Crown to proceed against the accused by the more serious charge. How do you enunciate that as a principle?
MR GAME: If your Honours look at the appeal book at page 40 it may help enunciate that by seeing what the judge actually said, identifying the error in that and then drawing the principle from that. What he said was:
At this stage, I do not wish to express any view on the power of a prosecutor to seek to withdraw the acceptance of a plea, in the absence of considered argument on the matter. I am of the opinion that in appropriate circumstances, however, where the Crown accepts a plea to a lesser charge pursuant to s 394A of the Crimes Act, the Court has the power to reject such a plea if the Court is satisfied the Crown’s decision to accept such a plea is not justified -
Now, I have already said that that very approach misunderstands precisely what occurred, but just taking those words as they stand, the proposition would be that it is no part of the Court to determine whether or not the Crown’s acceptance of the plea was justified, and that the Court has no power to reject a plea on such a basis. That is why I say it is so important to identify both what the basis of rejection is and the time at which it occurs when one considers and identifies the powers of the Court in these circumstances.
DAWSON J: One should not speak of the rejection of the plea in isolation because that is not just what was sought to be done. What was sought to be done was to force the Crown, conduce the Crown, to proffer another charge other than the one which they had eventually proffered.
MR GAME: Quite. That is not what happened in substance at all. What happened in substance followed on from what the prosecutor said at page 30, which:
I submit your Honour should reject the plea and order a trial for murder proceed.
That is what was really happening.
DAWSON J: Well, he should now be charged with murder?
MR GAME: Yes.
DAWSON J: Which he had ceased to be charged with in the sense that that had disappeared.
MR GAME: Yes. There is no point or substance in trying to take the argument away from the substance of the issue, which is that which your Honour Justice Dawson has identified.
DAWSON J: I mean, the extent to which the prosecution has control of the matter, that is control of the prosecution process, is demonstrated by the fact that a nolle can be entered after verdict and before judgment which is a horrifying thought to me because, it really means the Crown in that situation - there are some curbs on it, are there not, but the Crown in that situation can say, “We don’t like the verdict, and we’ll have another go.” It demonstrates the extent to which the Crown does have control of the prosecution process.
MR GAME: One would have to say subject, of course, to the circumspection which the Court would view the Crown recommencing such procedure.
DAWSON J: Questions of abuse of process may arise, but, theoretically, that can happen.
MR GAME: Yes. Just coming back to the matter that your Honour Justice Toohey was raising. The argument does shift a little but I accept that ultimately the question that has to be addressed in this case is a question about the power of the court and not any other question. That is the substance of the issue addressed by this case.
TOOHEY J: Because if the Court has the power and exercises it, it seems tolerably clear, I think, that the Court could not then do anything more. It could not say to the Crown, “You must indict; you must proceed” and the Crown might decide not to proceed.
MR GAME: Your Honour, in my submission, the very notion of a Mexican stand‑off demonstrates the fallacy in the judgment of the Court of Criminal Appeal and particularly at the bottom of page 86 over to page 87, the idea of a stalemate. One is entitled to ask ‑ in fact, it is essential to ask ‑ what would be the result of the stalemate? Where would this stalemate take you? And, if the answer to that question ‑ ‑ ‑
DAWSON J: To Parliament, as someone would suggests.
MR GAME: But, if the result of that stalemate is not that the Court can insist on a more serious charge, then the answer to the question must be that the Court does not have the power which it has been suggested that it does have.
TOOHEY J: I am not sure that that is right. I do not know that that follows inexorably. It is conceivable that the Court has the power, exercises it and that, thereafter, it is a matter for the Crown and it may be, of course, that in those circumstances, you would end up in the same position again. What you say points up the difficulty in holding that the Court has power but, in a sense, it is an independent argument as to whether the Court has the power or not.
MR GAME: I suppose a better way of putting it would be to say one is entitled to ask what would happen and then ‑ ‑ ‑
DAWSON J: But, the answer would be that the Crown would enter a nolle on the murder charge that still existed and simply charge him with manslaughter. And then the judge, presumably, would do nothing.
TOOHEY J: If it was the same trial judge, you might be in some difficulty.
DAWSON J: I do not know that it is being suggested. If it is, it is a suggestion fraught with difficulties. Other than in a situation of section 394A where there is just one charge and the accused pleads guilty, the judge can say, “Well, I refuse to accept that. I think he should have been charged with something else”.
MR GAME: Yes, but one must really approach this on the assumption, for the purposes of the argument, that the rejection of the plea is an end point; that it is not some sort of interim stage in the process where people will go away and get further evidence and so forth. It is an end point which allows the Crown to proceed on the charge of murder. It is not as it the judge would change his mind on the basis of the material that has been put before him.
DAWSON J: No, but you were asking what would happen if there were a stalemate and the Crown did not agree with the judge’s view that the plea should not be accepted, and I am saying the Crown could control the situation in the manner I have suggested, and that demonstrates that the questions of prosecution are for the prosecutor, not the judge.
TOOHEY J: Wwhat in fact happened here, Mr Game? When his Honour decided to reject the plea ‑ ‑ ‑
MR GAME: And then there was an appeal straight away, so yes ‑ ‑ ‑
TOOHEY J: That is all his Honour said, was it, that he was of the opinion that the court had power to reject the plea under section 394A? He did not say anything as to what the Crown ought to do in those circumstances?
MR GAME: No, that is true, but then he posed the two questions which appear on page 4.
TOOHEY J: But the matter was then on its way to the Court of Criminal Appeal.
MR GAME: Now this really brings one to the ultimate aspect of reasoning of the Court of Criminal Appeal, which I have already touched on, which is that passage appearing at pages 81 through to 82, which is the idea that a judge who concludes that he cannot find a factual basis that he can conscientiously accept. I have already mentioned that there was an error made by both the trial judge and the Court of Criminal Appeal as to what the role of the court actually was in sentencing; that is my first point about that. My second point is that to countenance this is to countenance an unacceptable approach of trial and sentencing courts to the task of sentencing.
I have not taken the Court to any of the authorities to which I have referred in any detail, but those are my submissions, if the Court pleases.
McHUGH J:Can I ask you this question, Mr Game. Supposing this judge had died during the period of the remand for sentence. Would not the situation be that a fresh indictment would have had to have been tendered before a new judge and that the accused could not have pleaded autrefois convict?
MR GAME: In my submission, there is only one Australian case which I know of that really is of any assistance in this problem, and it is a decision of Justice Gibbs when he was on the Queensland Supreme Court called Reg v Jerome (1964) Qd R. In this case it was decided that there had been no conviction because the court had not done some act indicating a determination on the question of guilt, but it seems to have been assumed that had there been a conviction by some act of the court, then such a plea could be raised.
In my submission, the English cases which suggest that there must be sentence or judgment should not be followed, and that once there is a - in a way, this case supports my argument because the various assumptions that had there been some act of the court demonstrating a conviction ‑ ‑ ‑
GUMMOW J: The crucial passage is at 604 by the look of it.
MR GAME: Yes:
or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained.
So on the authority of that case, then a plea of autrefois acquit could be raised. There is a Privy Council decision called Reg v Richards which ‑ ‑ ‑
McHUGH J: I notice that Mr Justice Gibbs relied on Sheridan and Grant, both of which were overruled by the Privy Council in Richards.
MR GAME: Yes. In my submission, Grant is good law and the Privy Council’s decision in Richards v The Queen is not, but in any ‑ ‑ ‑
McHUGH J: Yes, I can understand you to be compelled to make that submission.
MR GAME: I had, not defensively, but I had not intended to take the Court into too much detail in relation to this area, but in relation to Richards v The Queen, one can only be startled at the outcome of the case and the result which actually occurred. The prosecution entered a nolle prosequi to manslaughter which they accepted, indicted for murder. He was convicted of murder and sentenced to death. The reasoning of the Privy Council in Richards v The Queen required them to reject Sheridan and Grant. Grant is a case which would, if it were rightly decided, clearly favour the arguments which I have put to the Court. There are certain aspects of the decision in Richards v The Queen ‑ ‑ ‑
McHUGH J: Do you say that Richards is wrong?
MR GAME: Yes.
McHUGH J: Well, supposing in a case where the judge dies before sentencing the accused, but after an acceptance of plea of guilty, and no sentence has been passed, what could be done?
MR GAME: He has been convicted.
McHUGH J: He has been convicted, but he has got no sentence. On your view, you could never file another indictment against him, so he could never be sentenced.
MR GAME: I am not sure that that would necessarily follow. I thought that the question was in the context of the more serious charge. Surely the question of sentence would simply be transferred to some other judge to impose sentence.
McHUGH J: A fresh indictment; it is a different court; different judge. That is the point the Privy Council makes makes in Richards’ Case.
MR GAME: But there are plenty of cases where courts have been differently constituted, for example, appeals have been determined. A remarkable example of it was Shepherd, which eventually came to this Court. The court was constituted by three different courts. Surely, in those circumstances the question of sentence could simply be remitted to another Supreme Court judge for the imposition of sentence. But, your Honour, just coming back to Richards ‑ ‑ ‑
GUMMOW J: Well, Richards deals with that, does it not: 226F? It deals with that example Justice McHugh put to you.
MR GAME: Well, unless I had not addressed that particular problem, but could that be ‑ the question, I suppose, is whether or not “the court” must mean the court as constituted by Justice McInerney, or whether it means the Supreme Court and, in my submission, “the court” means the Supreme Court and it is not essential for it to be any particular person occupying that office. But there are some other distinguishing features about Richards. It would appear that if one goes back to ‑ there are statutory differences in relation to the question of a certification of conviction. At page 223 the line of cases which is relied upon - it is of some importance that there is a certificate of conviction containing the substance and effect of the indictment, section 11 of the Criminal Appeal Act.
Perhaps if I could just take the Court to the case of Grant (1936) 2 All ER. In Grant a plea of autre fois convict was accepted because it was found that the magistrate, having remanded the defendant for sentence, had convicted him.
In my submission, as a matter of substance, that decision must be correct. What happened was in subsequent cases, particularly S v The Recorder, they were cases about defendants who sought to withdraw their pleas. It was for reasons which undermined the basis of the plea. In fact, I think S v The Recorder was an example of a disabled defendant who gave evidence impugning the plea. But, in my submission, it was not necessary for those cases - and S v The Recorder did not specifically overrule Grant - to overrule these cases in order to uphold that proposition in S v The Recorder which was that a plea could be withdrawn after conviction and before sentence.
Although the Privy Council said that the English decisions took a wrong turn in Grant, it would be my submission that they were correct in both Grant - in Grant in particular, although Sheridan is a slightly different case.
GUMMOW J: Has there been any academic discussion of Richards?
MR GAME: I am sorry, your Honour, I should say I have not checked to see if there has been any, but there is certainly none referred to in Archbold or any of the readily available references. No, I have not seen any discussion of Richards.
McHUGH J: One thing you have got in your favour in Grant is that the judge who gave the main judgment was Sir Travers Humphreys, and probably no English judge of this century has had as much experience in the criminal field as Sir Travers Humphreys. He was Treasury counsel.
MR GAME: One of the interesting things about Grant and Sheridan is that I think Lord Goddard was in both decisions and Lord Goddard was one of the judges involved with some of the cases involving the power of the judge to reject a plea. Those cases being the other cases I have referred to, Soanes and the others. That is really my response to your Honour Justice McHugh’s question.
McHUGH J: It is a bit ominous though that these cases are reported only in the All England Law Reports and not in the authorised reports which may have a message.
MR GAME: Those are my submissions.
DAWSON J: Just before you sit down, Mr Game, the procedure in England is somewhat freer, is it not, or less formal in the sense that the prosecutor, if he is faced with a situation like this, approaches the judge to ask whether he should or should not accept a plea to a lesser charge, and then generally adopts the view that the judge makes clear to him?
MR GAME: Yes. The recent cases, particularly Jenkins, suggest that the prosecutor need not - it is ultimately a matter for the prosecutor to decide what will take place. But the practice is a practice in which the prosecutor seeks guidance from the judge, so that it is a rather different process. But ultimately it is a matter for the prosecutor to determine. The difficult questions that are thrown up by this case and Brown are not addressed in any of the English cases. In addition, there is a matter which was referred to by Chief Justice Gleeson in Brown which was that the prosecuting authorities in England - sorry, the court itself is involved with the settling of the indictment.
So that there are two aspects to it ‑ and there is a third aspect, of course, which is that there is no statutory ‑ section 394, its statutory equivalent is in different terms and does not speak of the Crown electing to accept the plea. But, in any event, the practice is one which would seem to be that the Crown may approach the judge and seek the judge’s approval but ultimately, it is a matter for the prosecutor to determine.
DAWSON J: And the second thing is, my recollection is that, at least in one State, there is a statutory provision where a judge dies or is incapable of performing his functions, for another judge to perform those functions. Is that so in New South Wales?
MR GAME: I do not know the answer to that question, but I can certainly check and provide that information to the Court.
McHUGH J: According to a tale which may well be apocryphal, Sir Frederick Jordan is alleged to have been told that a judge had just died before taking a jury’s verdict and he consulted his notebooks and he said that another judge could take the verdict of the jury. I do not know whether the tale is apocryphal or not. It is a well repeated tale in New South Wales.
DAWSON J: Statute might be a firmer basis for reaching the conclusion.
GUMMOW J: What orders do you seek from us, Mr Game? It is obscure at the moment, I think. Do you seek the orders from us that the Court of Criminal Appeal should have made under section 5F? And what were they? In other words, do you seek answers to questions from us, questions that were before Justice McInerney?
TOOHEY J: The order you are asking for is at page 94. Is that right?
MR GAME: The order would be that the ‑ ‑ ‑
GUMMOW J: You described it as an interlocutory appeal.
MR GAME: Yes. There has really been no argument at any stage about the jurisdiction of the Court under section 5F, but the order would be an order setting aside the judgment of the Court of Criminal Appeal ‑ ‑ ‑
GUMMOW J: What was the judgment of the Court of Criminal Appeal?
MR GAME: The judgment of the Court of Criminal Appeal ‑ ‑ ‑
GUMMOW J: It seems to appear at page 91. That was that the appeal be dismissed.
MR GAME: Yes: the appeal be upheld, the matter be remitted to the sentencing judge to sentence for the offence of manslaughter. The orders sought in paragraph 8 of the orders sought is maybe not drafted as well as it might be, but it does really indicate the substance of the orders that are sought.
GUMMOW J: Well, do you seek an order from us answering these questions?
MR GAME: Answering the two questions that the judge - - -?
GUMMOW J: Yes, that Justice McInerney certified.
MR GAME: In my submission, it is not necessary to answer the questions. If the Court pleases.
DAWSON J: Mr Howie?
MR HOWIE: Thank you, your Honours. I hand up an outline of the submissions on behalf of the respondent.
DAWSON J: You might just give us a minute or two to read these, Mr Howie.
MR HOWIE: Thank you, your Honours.
DAWSON J: Yes, Mr Howie?
MR HOWIE: Thank you. Can I say at the outset that the respondent would say that for the resolution of this matter on the particular facts of this matter it is not necessary to go so far as to determine whether the court has some residual discretion to, as it were, supervise a plea bargain by the prosecution and the accused. What happened in this case - and we say this is crucially important - is that both of the accused and the Crown asked the court to accept the plea on a specific basis, diminished responsibility. Now, a plea of guilty to manslaughter merely, in our submission, accepts that all of the elements of the offence of manslaughter have been made out, and that means simply that there has been an unlawful homicide which is not murder, because that is what section 18(1)(b) says is manslaughter.
Now, there are various ways that manslaughter can be committed or various ways in which the homicide can be unlawful and not be murder. One of them is provocation. One of them is diminished responsibility. One of them is gross criminal negligence. One of them is unlawful and dangerous act. And a finding by a jury of guilty of manslaughter or a plea of guilty to manslaughter does not necessarily determine upon what basis the manslaughter is found or on what basis the judge is to sentence for manslaughter. Now, what his Honour did here was to say, “I’m being asked specifically to sentence this man on the basis of manslaughter based upon diminished responsibility, no other basis.” That was the basis of the plea, that was the basis on which the Crown accepted it.
“Now, there is no reliable evidence before me that there was diminished responsibility, therefore, I cannot sentence on that basis of manslaughter, as that was the whole and sole basis upon which the Crown accepted the plea and on which the plea was given. I reject the plea. The plea is in fact defective, because the plea was based upon a precondition or based upon a circumstance upon which there is no reliable evidence.”
TOOHEY J: Is that the way in which the Court of Criminal Appeal approached the matter, Mr Howie?
MR HOWIE: They went a little bit further, but I think so. What the Court of Criminal Appeal was making clear was that firstly, the judge said that he could not sentence on the evidence before him; not that he could not sentence on the basis of diminished responsibility but on the basis on the evidence before him. Secondly, that the basis upon which he had been asked to sentence him was diminished responsibility. Now, for example, if you go to page 82 of the appeal book, in the judgment of the Court of Criminal Appeal, at about line 5:
On the evidence, a consideration of which was essential for the purposes of sentencing, the judge found himself unable to accept the facts as put forward on behalf of the appellant.
That is, diminished responsibility.
Judge McInerney has made clear his opinion that, consistently with his judicial duty, he cannot (on the present state of the evidence) deal with this as a case of diminished responsibility.
DAWSON J: Why could he not?
MR HOWIE: Because, in his view, the evidence did not amount to diminished responsibility.
DAWSON J: But it does not matter.
MR HOWIE: With great respect, it does.
DAWSON J: I mean, there are very often cases in which the judge completely disagrees with the verdict of a jury ‑ ‑ ‑
MR HOWIE: That is different, because the verdict of the jury does bind the judge because the verdict of the jury is the constitutional decision‑maker on the facts.
DAWSON J: And a plea of guilty.
MR HOWIE: But the plea of guilty does not decide all the facts. The plea of guilty only decides the necessary elements of the offence.
DAWSON J: That may demonstrate that there is some difficulty in the nature of the offence of diminished responsibility but it is a difficulty which the judge has to overcome, surely.
MR HOWIE: No, with great respect, all it meant was that the plea of guilty was to manslaughter. The basis upon that plea was diminished responsibility. That was the factual situation which he was asked to sentence on manslaughter. The Crown accepted it on that basis. On his view, there was no evidence to support manslaughter or the evidence was not reliable enough for him to act on that basis.
DAWSON J: Presumably on the view of the defence that it was sufficient and that was the view that was put to him.
MR HOWIE: But a judge is not bound by a factual basis upon which people want him to sentence.
TOOHEY J: But is that not missing the point though? I mean, the judge rejected the plea; he did not say simply, “I do not have sufficient material to enable me to sentence on the basis of diminished responsibility”. If that is all he had said he could have told the parties to go away and produce some more material.
MR HOWIE: There was a suggestion of that, in fact. Before he ‑ ‑ ‑
TOOHEY J: But he certainly rejected the plea, did he not?
MR HOWIE: Yes, but he rejects the plea because the plea had only been made on one basis, the diminished responsibility.
TOOHEY J: Well that may be, but that is a factual aspect. I just have difficulty with that argument.
MR HOWIE: For example, if the accused had said - and it is very hard to get examples because of the unusual nature of manslaughter and the unusual nature of diminished responsibility, which is a sort of a defence, but when it is pleaded becomes a basis of manslaughter. But say, for example, the accused was going to plead guilty to carnal knowledge of a child and he said, “I plead guilty to carnal knowledge of child on the basis that it was oral intercourse of the child”. The Crown accepted that, but all the evidence which was produced to him, and including the facts, showed anal penetration of the child. Now the judge would be entitled, we would submit, in that situation to say, I cannot sentence on the basis that the parties wish me to sentence because on the material before me that basis is not made out and, therefore, because that was the basis of the plea ‑ ‑ ‑
DAWSON J: It is made out; that is just a fallacy, because the plea of guilty admits the elements of that offence and the elements of that offence are that the accused mind was substantially impaired so that his mental responsibility for the acts remissions was lessened.
MR HOWIE: We would submit that, no, the plea of guilty to manslaughter admits only that there was an unlawful homicide, which was not murder.
TOOHEY J: I would be prepared to follow you down that path, but I am not sure where it takes you because, while I can see that that would be a basis upon which the trial judge might say, “I am not prepared to sentence at the moment unless I have more information”, what happened here was that the plea, itself, was rejected.
MR HOWIE: He did that. There was no more information came forward except a new psychiatric report from the Crown which rejected diminished responsibility. He therefore said, “I reject the plea”, and it would have been ‑ at that stage the Crown had intimated already that it did not want him to go on, and wanted him to reject the plea. That was the only basis upon which he was asked to sentence for manslaughter. In those circumstances, for him to go on and sentence on some other basis would have been quite wrong.
TOOHEY J: Why?
MR HOWIE: He had given the other parties the opportunity to come forward with more material, and even suggested that the psychiatrist be called and be cross‑examined, but none of that came up. He asked for the material that the psychiatrists were using that he did not have - the interview with the mother; the notes from the accused.
TOOHEY J: Yes, I understand all of that, but it seems to me to be two quite different situations: one in which the trial judge says, “There has been a plea of guilty. I am not satisfied as to the factual basis upon which the plea has been entered and I would like more information”, and to say, “I reject the plea because I am not persuaded that the factual basis upon which it has been offered to me has been substantiated”.
We would submit that what one has to do to prove autrefois convict is to prove a conviction - a final determination - of the matter; and the matter is not finally determined until sentence is passed because at that stage the conviction becomes permanent until set aside by the Court of Criminal Appeal. That is the basis upon which Richards says so, and we would submit that that has to be both practical and good law, and there is nothing in Griffiths which is against that proposition.
Certainly Justice Jacobs, with whom Justice Stephen agreed, and Justice Aickin all accepted that a plea of guilty could be amended, or could be taken back at any time until sentence was passed. So that even when a person who has been remanded for sentence comes back, up until sentence is passed the judge can allow him to change his plea and to, as it were, amend the record or withdraw the conviction that he has entered. It is a frequent occurrence, certainly both in Local Courts and in the District Court as part of the proceedings.
One example which is much like Grant would be in New South Wales, that a magistrate who is dealing with an indictable offence summarily could convict a person under section 476 before sentence though find that he did not have the power to deal with the matter - sorry, had the power to deal with the matter, but found that it was a matter in which, either because of the person’s record or because of other convictions which he did not know about, he was powerless to impose a sentence upon him, then could commit him for trial.
In the same way Grant then would be able to say he has been autrefois because he was convicted by the magistrate even thought not sentenced, therefore he could not stand trial in the District Court but the magistrate would not have the power to impose a sentence upon him because the magistrate’s sentencing powers are limited. That just could not be, we would submit, correct. The answer is because the conviction is not final until sentence is entered and that it has that finality which will allow the plea of autrefois convict to be satisfied.
Just as to the Crown withdrawing acceptance of the plea, we say it would be, as his Honour said really, an affront for the court in this situation to be bound even though it had a psychiatric report now from the psychiatrist relied upon by the Crown, which, for no, it seems, fault in the Crown, was a mistaken view and the Crown was properly led into a mistake, but subject to any question of abuse of process, the Crown should be entitled to seek to have the court allow it to withdraw its plea, just as an accused person can seek to have his or her plea withdrawn or rejected by the judge before the conviction is finally determined by the entrance of sentence.
I do not think there is anything further I wish to say on the matter. If the Court please.
DAWSON J: Thank you Mr Howie. Mr Game.
MR GAME: If the Court pleases. In my submission, the argument that my friend puts about the plea of autre fois convict or acquit not applying until there is final certificate of conviction or some final point beyond the conviction itself, simply cannot be right and if one could take the example given by Justice Toohey, if there were a jury trial in this case, on murder, a verdict of manslaughter, the allocutus was read and then some other event occurred, could the Crown then indict for murder? There surely must be autre fois acquit in relation to the murder at that point. The idea that a conviction has this provisional ‑ ‑ ‑
DAWSON J: There is a distinction between acquittal and conviction, of course.
MR GAME: Yes, your Honour. Yes, there is a distinction but the point is that there will be an autrefois acquit in relation to the murder at that point. There will be an autrefois convict in relation to the manslaughter which can be relied upon as a plea in bar in relation to an indictment for murder.
DAWSON J: Yes.
MR GAME: Now, I will not read from it, but in Chief Justice Barwick’s judgment in Griffiths the acceptance or rejection of a plea by the court is relied upon by him as the very thing that demonstrates that there is a distinction between the entering of a plea and a conviction, but there is no suggestion that once the conviction takes place, whether it be by the remand for sentence or otherwise, that some other event can take place whereby the court or the Crown can go back on the position which it has previously taken. Now, in relation to the whole question of autrefois acquit and convict, I will not repeat my submissions but I rely on the cases to which I referred, both Jerome and Grant, in favour of the reasoning of the Privy Council in Richards.
Now, in relation to the question which your Honour Justice Dawson asked about what would happen if the judge was sentencing this case after a jury verdict and my friend said it may not have got to the jury because the judge said that there was no evidence or it was impossible for him to sentence because he said there was no evidence, what the judge said, and it is critical, in my submission, because it destroys the whole of the Crown’s argument, was the judge said, I cannot find on the balance of probabilities diminished responsibility.
But that was the question which would have been for the jury to decide and that was the issue which was resolved by the plea in this case and its acceptance. The example that your Honour Justice Dawson gave would be rather like the jury coming back with a verdict of manslaughter in a case where only diminished responsibility was left, and then the judge saying, but I cannot find on the balance of probabilities diminished responsibility.
In my submission also, once one accepts that the Crown cannot withdraw its acceptance after conviction, and conviction strictly construed in accordance with Griffiths, then likewise there could be no basis for the judge to reject the plea because it is in contemplation; it is for the very purpose of enabling the withdrawal of the acceptance, freeing up the Crown to proceed on murder.
The critical fallacy, in my submission, in the whole of the argument as put by my friend is encapsulated in those two lines at page 82 of the appeal book when the Chief Justice said:
I regard the acceptance of such a theoretical possibility -
that is in relation to a stalemate -
as preferable to a conclusion that a judge can be required to sentence an offender on the basis of a view of the facts to which the judge cannot, in conscience, subscribe.
He is sentencing for a particular offence, not for a view of the facts. And in any event, the idea that the onus had to be established on the balance of probabilities led both the trial judge and the Court of Criminal Appeal into error.
Dr Strum said that the man suffered from diminished responsibility by reason of a depressive illness. These were, after all, sentence proceedings. Defence counsel said without objection at page 7, line 15:
As to that, we can only submit that either there is diminished responsibility or there is not. Here there is, and then it is a question of what is the appropriate sentence and that is a difficult matter.
And then at page 9, the only submission which the Crown put was in relation to a question about when intent was formed, and then, at page 10, line 50, the Crown Prosecutor pointed out the very inconsistencies which the parties were fully aware of. Now, it is against that background that one has to view what took place subsequently.
That is all that I wish to say in reply, if the Court please
DAWSON J: Thank you, Mr Game.
MR HOWIE: Can I just raise one matter ‑ it is not by argument ‑ it is just I meant to correct something?
DAWSON J: Yes, Mr Howie.
MR HOWIE: Thank you, your Honour. Your Honour Justice Dawson said that a nolle could be entered at any time until judgment or sentence.
DAWSON J: I did not say that with any confidence, but I thought ‑ ‑ ‑
MR HOWIE: Yes, that is the only point I was going to make. I think that it can only be entered until verdict. There is a case called R v Ferguson; Ex parte Attorney General of Queensland (1991) 1 Qd R 35, at 39, that says it is verdict.
DAWSON J: I seem to recall there is other authority but I am not confident.
MR HOWIE: I had a look quickly before I came in this morning. It suddenly dawned on me that it might arise. I could not find anything quickly this morning when I looked in the library. That was the only matter.
DAWSON J: Yes, thank you, Mr Howie. The Court will consider the matter and adjourn until 10.15 am tomorrow morning.
AT 12.36 PM THE MATTER WAS ADJOURNED
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