R v Collins; Ex parte Attorney-General

[1994] QCA 467

IN THE COURT OF APPEAL [1994] QCA 467

SUPREME COURT OF QUEENSLAND	C.A. No. 376 of 1994
Brisbane
BeforeFitzgerald P. McPherson J.A. Lee J.
[Re: Collins]

IN RE: NIGEL JAMES COLLINS

REFERENCE BY ATTORNEY-GENERAL
UNDER S. 669A OF THE CRIMINAL CODE

Fitzgerald P McPherson JA Lee J

Judgment delivered 04/11/1994

Joint reasons for judgment delivered by McPherson JA and Lee J; separate concurring reasons of Fitzgerald P

ANSWER THE QUESTIONS IN THE CASE STATED AS FOLLOWS:

1.WAS THE TRIAL JUDGE CORRECT IN RULING THAT A COUNT OF ARSON WAS NOT ABLE TO BE JOINED WITH COUNTS OF BREAKING, ENTERING AND STEALING, AND (IN THE ALTERNATIVE) RECEIVING?

NO.

2.WAS THE TRIAL JUDGE CORRECT IN RULING THAT WHEN AN ACCUSED WHO IS INDICTED UPON BREAKING, ENTERING AND STEALING, ALTERNATIVELY RECEIVING, PLEADS GUILTY TO RECEIVING, THE CROWN CANNOT PROCEED TO TRIAL ON THE BREAKING, ENTERING AND STEALING (WHERE THE CROWN DOES NOT ACCEPT THE PLEA IN THE ALTERNATIVE COUNT IN FULL DISCHARGE OF THE INDICTMENT)?

NO.
CATCHWORDS:CRIMINAL LAW - joinder - break-in of premises - arson

- receiving alleged in the alternative - whether counts of arson and receiving properly joined - whether "founded on the same facts" - whether part of a "series of offences" - whether sufficient nexus between offences - improper joinder - defective indictment - whether proper for trial Judge to quash on own motion - proper procedure discussed

CRIMINAL LAW - when conviction results - meaning of term "conviction" - procedure to be adopted when Crown refuses to accept guilty plea to alternative count in discharge of indictment - function of trial Judge - whether legitimate to intervene in prosecution.

Criminal Code, ss. 548, 567(2), 596

Counsel:  M Byrne QC for the applicant

S Herbert QC, appearing amicus curiae for the accused

Solicitors:  Director of Prosecutions for the applicant

Legal Aid Office for the accused

Hearing date: 28 October 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 04/11/1994

The questions referred to this Court and the circumstances

giving rise to the reference are set out in the reasons for

decision of McPherson J.A. and Lee J.

Question 1 concerns the joinder of the three charges in the one indictment. The trial judge does not seem to have exercised a discretion under s. 597A of the Criminal Code, but to have held

that joinder was prohibited under sub-s. 567(1).

Joinder of the second and third charges was expressly authorised

by sub-s. 568(4). And it is beyond argument that joinder of the first and second charges was authorised by sub-s. 567(2). On

the received view of that provision, the first and second

charges were both "founded on the same facts" and "form part of ... a series of offences committed in the prosecution of a single purpose". These phrases are discussed in many authorities, a number of which are referred to by McPherson J.A. and Lee J. There is no point in discussing them in connection with the joinder of the first and second charges.

If there was a defect in the indictment, it must have arisen

from the joinder of the first and third charges. If the joinder of these charges was permissible, that joinder must be authorised by sub-s. 567(2), and justifiable even if the second charge had not been included in the indictment.

In order to determine whether the first and third charges were

"founded on the same facts", it is helpful to identify the "facts" on which each of those charges was "founded", and which, if any, of the facts were the foundation of both charges.

The first charge, but not the third charge, required proof that

the warehouse was set on fire and how that was done, but the
remainder of the facts were material to both charges; i.e.
(a)on the evening of 13 June 1993 or the early morning of the

next day, a building at Caboolture was broken into;

(b)property was stolen from the building at that time, including

money from a safe in the building, a shotgun, and
jewellery;

(c)the safe, which had been broken into, remained on the

premises together with three padlocks which had secured it

until they were each broken;

(d)four days later, a police agent purchased a shotgun from the

accused;

(e)the next day the agent purchased jewellery from the accused;

(f)both the shotgun and jewellery had been stolen from the

warehouse;

(g)when the purchase of the jewellery was being discussed, the

accused said that it took a long time to get the safe open.

I cannot discern any basis upon which it could be contended that

the first and third charges were not "founded on the same

facts". The authorities give no support to a proposition that

such a conclusion results from the circumstance that an

additional fact had to be proved to establish the first charge.

The second question concerns the effect of a plea of guilty.

1.A plea of guilty is a formal admission by the accused of the

facts essential to the charge.

2.There is power to permit the accused to change his or her

plea.

3.Unless and until that occurs:

(a)the jury is entitled to act upon the plea in arriving at its

verdict on that charge and any other charge before it

on which those facts are material; and

(b)the court is entitled to accept the plea, either expressly or

by recording a conviction, administering the allocutus

(Code, s. 648), or some other overt and unequivocal

manifestation of acceptance.

Ordinarily, the court postpones acceptance of a guilty plea

until the prosecution has indicated its acceptance.

As McPherson J.A. and Lee J. point out, "conviction" is not a

word of invariable meaning, and it is perhaps insufficient to state that, until acceptance of the plea by the court, there is no conviction. By that is meant that there is no judgment of the court on the charge against the accused to which he or she

has pleaded guilty. In such circumstances, there is no

objection to the prosecution proceeding with, and obtaining the jury's verdict on, other charges which have been properly joined

as well as the charge to which the accused has pleaded guilty. The court then proceeds to judgment in accordance with those verdicts.

McPherson J.A. and Lee J. refer to a number of authorities which

support these propositions, especially Griffiths v. R. (1977)
137 C.L.R. 293 and R. v. Broadbent (1964) V.R. 733.
Their Honours also note that, when an accused pleads guilty to

one or some, but not all, charges properly joined in an indictment, the court, while not then accepting the plea, may

take the jury's verdict only on the other charges: cf. R. v. Murphy (1988) 52 S.A.S.R. 186. While I am disinclined to state

a general rule, I do not dissent from the proposition that it will often be preferable to take the jury's verdict on all charges.

The questions asked seem to me unsatisfactory. Section 669A of

the Code permits a point of law to be referred to this Court for

its consideration and opinion. Although both questions assume

points of law of general application, the answer to the first

especially is dependent on the particular circumstances. And the second requires expansion, again to take account of the

circumstances; i.e., the court's acceptance or otherwise of the

guilty plea.

I would answer the questions asked as follows:

1.No, in the circumstances of this matter.

2.No, if the court had not accepted the guilty plea.

JUDGMENT OF McPHERSON JA AND LEE J

Judgment delivered 04/11/1994

This is a reference by the Attorney-General under s. 669A

of the Criminal Code.

On 15 August 1994 the accused, Nigel James Collins, was

brought on for trial in the District Court at Brisbane before

his Honour Judge Botting and a jury on an indictment containing three counts. Count one charged arson of a building, count two

charged breaking, entering and stealing in relation to the same building, and count three charged, as an alternative to count

two, receiving property stolen from the building.

The Crown alleges that on the evening of 13 June 1993, or early the next morning, a warehouse in Caboolture was broken into and that property, including money, a shotgun and

jewellery, was stolen from it. The money was contained in a

safe within the warehouse. The safe was secured by means of three padlocks, all of which were broken to gain access to its

contents. At about the time of the break in, the warehouse was set on fire. Investigations revealed that there was a burnt trail in the carpet from the area of the safe towards the front

entrance of the building. Petrol was detected amongst the burnt areas. Obviously it is the Crown's contention that the arsonist and the thief are one and the same person.

Four days after the fire, a police agent purchased from the accused the shotgun stolen during the break in. The following day the stolen jewellery was also purchased. During the course of the second transaction, the agent, by means of a tape recorder concealed on his person, is said to have recorded certain admissions from the accused which would place him at the scene of the crimes, the subject of counts one and two, at the relevant time. In particular, it is alleged that the accused made some reference to the difficulty he encountered in opening the safe.

When the accused was arraigned, he pleaded not guilty to counts one and two but pleaded guilty to the alternative count, count three. The Crown Prosecutor immediately informed the trial Judge that the Crown did not accept the accused's plea on

count three in discharge of the indictment and, in particular, in discharge of count two. The accused was then placed in the

charge of the jury on counts one and two.

In the absence of the jury, legal argument then ensued which resulted in two rulings favourable to the accused. Both subjects dealt with by the rulings were initially raised by the trial Judge but his Honour's observations were soon adopted by

counsel for the accused. The first ruling was that the joinder of the arson count, with the alternative receiving count was not permitted by s. 567(2) of the Code, and that the indictment was

therefore bad. The second was that in view of the accused's

plea of guilty to count three on the indictment, the Crown was

barred from proceeding to trial in respect of count two. It is

in respect of both of these matters that the reference is made.

As a result of his Honour's rulings, the Crown Prosecutor sought to have the trial on count one adjourned, but, when unsuccessful, entered a nolle prosequi in respect of counts one and two. The jury were then discharged and the accused was called upon and sentenced with respect to count three.

The questions referred under s. 669A are:

1.Was the trial Judge correct in ruling that a count of arson

was not able to be joined with counts of breaking, entering
and stealing, and (in the alternative) receiving?

2.Was the trial Judge correct in ruling that when an accused who

is indicted upon breaking, entering and stealing,

alternatively receiving, pleads guilty to receiving, the Crown cannot proceed to trial on the breaking, entering and

stealing (where the Crown does not accept the plea in the
alternative count in full discharge of the indictment)?
The words in brackets denote some formal amendments

suggested by senior counsel for the accused, who appeared amicus curiae at the hearing of the reference. They were not demurred

to by senior counsel for the applicant and it is convenient to

proceed on the basis that they are accepted.

Question One - Joinder

Section 567(1) sets up a general prohibition in relation to the joinder of multiple counts in the one indictment. Section 567(2), however, sets up an exception. Relevantly, it provides that multiple counts may be joined on the one indictment if they:

"are founded on the same facts or are, or form part, of a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose."

It has long been accepted that the basic criteria for the

joinder of counts under sub-s. (2) is the existence of some

connection or nexus between them, each limb of the sub-section being illustrative of the circumstances giving rise to that

nexus: Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29, 39; R. v. Kray [1970] 1 Q.B. 125, 130-1; R. v. Clayton-

Wright [1948] 2 All.E.R. 763, 765; R. v. Cranston [1988] 1 Qd.R.

159, 164. In defining in broad terms what connection is

sufficient for this purpose, an examination of the cases demonstrates that an appropriately liberal reading be given to

the text of the section, consistent with its underlying policy.

That policy, it was stated in Kray, is to enable the joinder of
charges which may be "properly and conveniently" dealt with

together: 131; see also Ludlow, 38. It is obviously desirable

both in the interests of the due and expedient administration of

criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single

and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s. 597A.

If nothing else, consistency in decision making would dictate

that the one tribunal resolve such questions, little being

gained from a fragmented approach. The simple means which the

legislature has provided for giving effect to this policy is to

allow the joinder of multiple counts in the one indictment in an appropriate case "so that the whole of the facts can be adjudicated upon by one jury": R. v. Bellman [1989] A.C. 836, 850. Indeed so extensively has this policy been recognised,

that the Courts have laid down the general rule that matters

which can be joined without prejudice to the accused ought generally to be: Connelly v. Director of Public Prosecutions

[1964] A.C. 1254; R v. Bargenquast (1981) 5 A.Crim.R. 126.

The counts in the present indictment plainly display the requisite nexus. If nothing else, all of the offences charged had their genesis in the events of 13 June 1993 and in that

sense attract the operation of the first limb of the sub- section. For offences to be "founded on the same facts" they must have a "common factual origin": R. v. Barrell and Wilson (1979) 69 Cr.App.R. 250; Bellman, 850; Cranston, 162. But that

is a phrase which is not to be narrowly construed. In

particular, it is not necessary for the offences to have arisen

contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time,

place or circumstance, to common events.

Moreover, the admissibility of the accused's recent

possession of the stolen items on the charges of arson and

breaking, entering and stealing, as a circumstance tending to

connect him with the scene of those crimes (R v. Loughlin (1951) 35 Cr.App.R. 69), establishes them as part of a series of offences as that phrase is understood. It is both the fact of that possession and the circumstances attending its acquisition

that provides the necessary link. The mere fact that the counts

are mutually exclusive in the sense that they are based on contradictory explanations as to the circumstances surrounding the offences is not to the point: R. v. Bellman. It is the

existence of some common link between them that justifies the

joinder.

Accordingly, question one should be answered: No.

Before turning from this topic it is desirable to make some

comment on the course adopted by his Honour in the present case.
Generally speaking, the proper remedy for an accused who
alleges improper joinder and wishes to challenge the form of the
indictment is to move the Court before pleading for the

indictment to be quashed on the ground of formal defect: s. 596;

R v. Pugh [1971] Qd.R. 249. If the challenge is made out, the

indictment is either amended or withdrawn: see eg. R v.

Fitzgerald and Thomas [1936] Q.W.N. 41. If such a motion is not

made and the matter proceeds to trial, this Court will not upset the conviction unless it can be demonstrated that a substantial

miscarriage of justice has resulted: R v. Crozier [1929] Q.W.N. 31. In the present case the ruling of course resulted from the

Court's own motion, but whether that is a practice to be

condoned is, in our opinion, open to serious doubt. The existence of a clear statutory procedure to be adopted by an accused aggrieved by an improper joinder and the prevailing attitude in this Court, persuade us that any such practice should be discouraged. There may be many reasons why the accused may not wish to take the point at trial and as a general rule where an accused is represented by competent counsel, a trial Judge should not interfere with that decision unless of

the clear opinion that proceeding in the vein proposed would

inflict substantial prejudice on the accused.

Question Two - Conviction

The basis of his Honour's second ruling appears to be that permitting the Crown to proceed to trial in relation to count two would have placed the accused in jeopardy of being convicted on both the principal and alternative counts. No doubt if that were correct, then the ruling would be unchallengeable. The flaw in reasoning, though lies in the implicit acceptance of the

proposition that the accused had been convicted by his plea

alone. That error was, in turn, precipitated by a misconception as to the effect of s. 648 of the Code which, whilst requiring that an accused who pleads guilty be called upon, provides that

a failure to do so does not invalidate the judgment. In

context, the judgment clearly means the sentence.

A plea of guilty amounts to no more than a formal admission

by the accused of the facts essential to the charge to which the

plea relates: R v. Tonks and Gross [1963] V.R. 121, 127; Di

Camillo v. Wilcox [1964] W.A.R. 44, 46; Slater v. Marshall

[1965] W.A.R. 222, 228-30. It dispenses with the need for the

Crown to prove the facts alleged in the presentment: R. v.

Broadbent [1964] V.R. 733, 735. But a plea of guilty does not

of itself result in a conviction. It is no more than an admission which neither the Crown nor the Court is obliged to accept: Griffiths v. The Queen (1976-77) 137 C.L.R. 293, 302, 334; R. v. Jerome and McMahon [1964] Qd.R. 595, 603; R. v. Tonks

and Gross, 127; R. v. Cole [1965] 2 Q.B. 388, 394-5. Indeed if the law were otherwise, there would be no power in the Court to

permit an accused person to change his or her plea should the

circumstances require it: Griffiths v. The Queen, 334; R. v. Jerome and McMahon, 603; R. v. Cole, 394. Central to the

resolution of question 2 of the case stated, therefore, is the
question of when a conviction results.

Although the meaning of the expression "conviction" may be coloured somewhat by its context: R. Tonks and Gross, 127; Cobiac v. Liddy (1969) 119 C.L.R. 257, 270, our Code does not purport to define it in specific terms. There is therefore no

reason to doubt that when used in the Code the expression was

intended to convey its accepted common law meaning.

Conviction is the act of the Court, not of the accused.

For this reason, it has been accepted in this State that a

conviction occurs only upon some intimation by the Court that it accepts the plea as its determination of guilt and, in effect, adopts it as its verdict. This is surely right. In the normal course, that intimation would be evidenced by the administration of the allocutus: see s. 648 of the Code, and R. v. Schillingsworth [1985] 1 Qd.R. 537, 534. But as s. 648 itself

recognises, a failure to administer the allocutus does not invalidate the judgment. A fortiori its administration is not necessary to perfect the conviction. All that is required for that to occur is some unequivocal and overt expression of

acceptance by the Court of the plea as its determination of guilt; how that acceptance is manifested is immaterial:

Griffiths v. The Queen, 302, 335-6; R v. Jerome and McMahon,

604. Other methods may include an express statement by the

Court or proceeding to hear submissions on sentence.

On that basis, there was no inherent difficulty in the

course proposed by the Crown at the accused's trial.

The problem which arises on the case stated, of course, is

that the plea was in fact accepted by the Court; the accused was

called on in respect of count three and a conviction for that count resulted. Should the Crown, in those circumstances, attempt to proceed on either or both of counts one or two a real question would arise as to whether such a course amounts to an attack on the findings implicit in the conviction and so constitute an abuse of process: Rogers v. The Queen (High Court, unreported, 28/9/94). But that is not a question which we are called upon to decide. Indeed we were informed by senior counsel for the Crown that no further action would be taken in respect of this accused.

But that does not establish the correctness of his Honour's ruling and it is desirable that some comment be made on the correct practice to be adopted should the matter arise again in the future. Before doing so, however, it is convenient to

dispose of one preliminary matter relied on by his Honour. In

addition to acting on the error referred to, his Honour was seemingly comforted in his ruling by his conclusion that the offences involved were of equal gravity in that the same maximum penalty was provided for each. In his opinion, no useful

purpose could be served by permitting the Crown to proceed

further in respect of count two. Without entering into debate

about the correctness of that conclusion, devoid as it is of any reference to the particular facts of the case, we are of the clear opinion that such a consideration is irrelevant to the application of the principles stated. It is no part of the trial Judge's function to involve himself in the preferment or

prosecution of criminal charges. The wide range of

considerations involved in the exercise of discretions of that kind, some of which are not properly the subject of judicial scrutiny, persuade us that that is essentially an executive and not a judicial function. Save to ensure fairness to the accused or to prevent an abuse of the Court's processes, matters of that kind should generally be left to the discretion of the

prosecuting authorities. Whilst we do not say that there may

never be a case in which the Courts may examine or possibly even interfere with the exercise of that discretion, the frequency of

such occasions must, by necessity, be extremely rare in nature.
Trial Judges should exercise extreme caution in ensuring that

they do not exceed the legitimate bounds of their judicial

office: see R v. Brown (1989) 17 N.S.W.L.R. 472, 479-81.

Returning to the relevant practice, when the Crown
indicates that it will not accept the accused's plea to an

alternate or lesser charge in full discharge of the indictment presented, two courses have been suggested. The first is for

the trial Judge to stand the charge, in respect of which the

plea has been received, down and allow the Crown to proceed to

trial on the other counts in the indictment. The plea having

been noted on the Court file and there, at that time, being no

intimation by the Court as to its acceptance of it, it is

legitimate for the Crown to proceed on the principal count and

have the jury determine the question of the accused's innocence or guilt in relation to it. The accused is then placed in the charge of the jury on that count alone. There being no conviction, no question of autrefois convict arises. Should the jury return a verdict of guilty on the principal count, in the

absence of exceptional circumstances, the trial Judge should act on that verdict and proceed to sentence. The plea of guilty in relation to the lesser or alternative count will then remain on the Court file and no further action will be taken in respect of

it. Alternatively, should the jury return a verdict of not guilty on the principal count, in the absence of some compelling

reason permitting the accused to change his plea, the Court should then adopt it, usually by means of administering the allocutus, so that a conviction in relation to it results: see

generally R. v. Cole, 394; R. v. Murphy (1988) 52 S.A.S.R. 186,

189.

The alternative procedure is set down in the decision of

the Full Court of the Supreme Court of Victoria in R. v.

Broadbent. The course there followed involves permitting the

trial on both the principal and alternative counts to proceed,

the jury being directed as to the use which they may make of the guilty plea in relation to the alternative charge should they

acquit of the principal charge. It was suggested in that case that if the Court were to do otherwise and withdraw the lesser

charge from the jury, it might be supposed that the Court had in some way accepted the plea of guilty and so afford the accused the right to plead autrefois convict to the principal charge.

Although in light of the foregoing it may be doubtful whether this later reason holds true in this State, on balance we consider the second approach to be the more sensible. It would seem consistent with the policy behind the initial joinder that the jury should have before it and be able to adjudicate upon all matters relevant to the case, bearing in mind always its entitlement to use the accused's admission and attach such

weight to it as it thinks fit. The procedure also provides the added attraction that, should the circumstances require it, a special verdict may be obtained under s. 568(4).

It follows from these reasons and from the absolute form in

which question two was cast that it too should be answered: No.