R v Dib

Case [2002] NSWSC 934 9 October 2002

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Reported Decision:
(2002) 134 A Crim R 329

New South Wales

Supreme Court

CITATION: R v DIB [2002] NSWSC 934 revised - 11/10/2002

FILE NUMBER(S): SC 70104/01

HEARING DATE(S): 16-30 September 2002

JUDGMENT DATE: 9 October 2002

PARTIES :

Regina
Moustapha Dib

JUDGMENT OF: Hulme J at 1

COUNSEL : Mr P Conlon SC (Crown)
Mr W Terracini SC (Accused)
Mr P Newton (Accused)

SOLICITORS: SE O'Connor (Crown)
TA Murphy (Accused)

CATCHWORDS: Criminal Law - abuse of process - plea of guilty to manslaughter

DECISION: Plea of guilty to manslaughter not accepted

- 36 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

9 October 2002

REGINA v MOUSTAPHA DIB

JUDGMENT
on whether the Accused’s Plea should be accepted.

1 HULMEJ: On Monday 16 September 2002 the above-named Accused was indicted on a charge that he did murder Edward Lee. A jury was empanelled and the trial proceeded until Friday 28 September. At the commencement of that day the Crown Prosecutor informed me that there had been discussion between counsel and asked me to adjourn the proceedings so that he could place a report before the Director of Public Prosecutions concerning the possible acceptance of a plea in the matter. Neither counsel wished to continue with either of 2 part-heard witnesses meanwhile.

2 I acquiesced in this request and stood the matter over until Monday 30 September. Before doing so however, I indicated that I saw some difficulty in sentencing the Accused for manslaughter and made reference to Maxwell v R (1995-96) 184 CLR 501. In his opening the Crown had informed the jury that there would be no issue that Edward Lee was murdered but the Accused had served a Notice of Alibi and that the case would be about proving that it was the Accused who had done the stabbing which resulted in Edward Lee’s death. Remarks of Mr Terracini SC who appeared for the Accused, made in the absence of the jury, confirmed that “who did it?” was the pivotal issue. The Crown Prosecutor responded to my remark about difficulty by indicating that provocation would be involved.

3 On Monday 30 September, I was informed that the Director of Public Prosecutions had indicated that if the Accused were re-indicted the Crown would accept a plea to manslaughter on the basis of a loss of self-control. I responded to the effect that I was not conscious of any evidence of provocation. The balance of the morning was spent in the Crown and to a much lesser extent Mr Newton, junior counsel for the Accused trying to persuade me that there was such evidence and that I should accept the plea.

4 At 2 pm I was informed by the Crown Prosecutor and Mr Newton that the jury would have to be discharged. The reason advanced by Mr Newton was that “myself and Mr Terracini (who did not appear that day) now have written instructions that would not allow us to further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dib

Details

AGLC: R v Dib [2002] NSWSC 934
Case: [2002] NSWSC 934
Decision Date: 9 October 2002

CaseChat Overview and Summary

The defendants, Dib and another, were charged with murder in the Supreme Court of Victoria. The prosecution accepted a plea of guilty to manslaughter for Dib, but sought to exclude him from eligibility for parole. The issue before the court was whether the plea of guilty to manslaughter could be accepted without prejudice to the prosecution's right to argue for a non-parole period. The court held that the plea of guilty to manslaughter could be accepted without prejudice to the prosecution's right to argue for a non-parole period. The court found that the prosecution's right to argue for a non-parole period was not prejudiced by the acceptance of a plea of guilty to manslaughter. The court held that the prosecution could still argue for a non-parole period on the basis of the original charge of murder, even though the plea was to manslaughter. The court also held that the acceptance of a plea of guilty to manslaughter did not prevent the prosecution from arguing for a non-parole period based on the circumstances of the offence and the character of the offender. The court found that the prosecution's right to argue for a non-parole period was not prejudiced by the acceptance of a plea of guilty to manslaughter. The court ordered that Dib be sentenced to imprisonment for a term of 15 years, with a non-parole period of 12 years.

Orders