R v HJS - [2020] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HJS
[2020] SASC 142
Judgment of The Honourable Justice Doyle
7 August 2020
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
The accused is charged with murder. Upon his first arraignment in this Court, an issue arose as to the status of his plea of guilty to manslaughter in the Magistrates Court.
Manslaughter had been charged as an express alternative to murder on the Information filed in the Magistrates Court. Upon the accused pleading not guilty to murder, but guilty to manslaughter, the prosecutor indicated that the Director of Public Prosecutions did not accept this plea in satisfaction of the Information and the matter was committed to the Supreme Court.
There is a dispute as to the basis upon which the matter was committed. The prosecution position is that the accused is bound by his plea of guilty to manslaughter in the Magistrates Court. On the prosecution approach, by reason of the plea of guilty (and committal for sentence) on the charge of manslaughter, the accused will only be put in the charge of the jury on the charge of murder, and not manslaughter.
The defendant contests this analysis and approach. He contends that his plea of guilty to manslaughter, not having been accepted by the prosecution, falls away and is of no legal status (regardless of any evidential status that it might have). He contends that this is so despite the inclusion of manslaughter as an express alternative on the Magistrates Court Information, and indeed goes further and contends that the Director was not entitled to charge it as an express alternative and that the Information is void, and a legal nullity, to that extent. As such, the defendant contends that there was no basis for him to be committed for sentence on the charge of manslaughter. He contends that he should be arraigned on murder, and upon his plea of not guilty, he should be put in the charge of the jury on the charges of both murder and manslaughter.
In the alternative to the above, the defendant contends that he should be granted permission to change his plea under s 119(1) of the Criminal Procedure Act 1921 (SA).
Per Doyle J:
1.     Discussion of the practices and implications associated with the charging, and pleading guilty to, alternative offences.
2.      There is no legal impediment to the prosecution charging manslaughter as an express alternative to murder.
3.      In circumstances where the defendant first enters a plea of guilty to an expressly charged alternative offence in the Magistrates Court, then the defendant should be committed for sentence on that offence. That plea should remain on the file rather than being treated as having been withdrawn or as a legal nullity.
4. The defendant has established that it is in the interests of justice that he be permitted under s 119(1) to change his plea to the charge of manslaughter despite having been committed for sentence on that charge.
Criminal Law Consolidation Act 1935 (SA) ss 11, 13, 20(3), 24(1), 25; Criminal Procedure Act 1921 (SA) ss 113, 119, 133; Director of Public Prosecutions Act 1991 (SA) s 7(1)(a); Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) , referred to.
Attorney-General v Kitchen (1989) 51 SASR 54; Attorney-General’s reference under s 693A of the Criminal Code (2002) 26 WAR 197; Director of Public Prosecutions v Collins (2004) 10 VR 1; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; James v The Queen (2014) 253 CLR 475; Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132; Pearce v The Queen (1988) 194 CLR 610; Perejmibida v Skelcher (2002) 127 A Crim R 549; R v Ballam (2016) 126 SASR 189; R v Bebbington (1978) 67 Cr App R 285; R v Brady & Smythe (2005) 92 SASR 135; R v Broadbent [1964] VR 733; R v Brooks (2006) 95 SASR 369; R v Cole [1965] 2 QB 388; R v Collins; ex parte Attorney-General [1996] 1 Qd R 631; R v Downs (1985) 3 NSWLR 312; R v F, KV [2019] SADC 53; R v Hazeltine [1967] 2 QB 857; R v Holder [2018] SASC 168; R v Murphy (1988) 52 SASR 186; R v Pearce [2019] SASC 33; R v Pugh (2005) 158 A Crim R 302; R v Saunders [1988] AC 148; R v Zampogna (2003) 85 SASR 56; Ryan v The Queen (1967) 121 CLR 205; Tsavalas v Police [2016] SASC 103, considered.

R v HJS
[2020] SASC 142
Criminal

DOYLE J: The accused (HJS) is charged with murder. Upon his first arraignment in this Court, an issue arose as to the status of his plea of guilty to manslaughter in the Magistrates Court.
Manslaughter had been charged as an express alternative to murder on the Information filed in the Magistrates Court. Upon the accused pleading not guilty to murder, but guilty to manslaughter, the prosecutor indicated that the Director of Public Prosecutions did not accept this plea in satisfaction of the Information and the matter was committed to the Supreme Court.
There is a dispute as to the basis upon which the matter was committed. While the transcript records merely a general statement that the Magistrate committed the defendant to trial in the Supreme Court, the paperwork emanating from the Magistrates Court states that he was committed for trial on the charge of murder, and committed for sentence on the charge of manslaughter.
The Information filed in this Court alleges only murder. There is no express alternative of manslaughter. The prosecution position is that the accused is bound by his plea of guilty to manslaughter in the Magistrates Court. It contends that having been committed for sentence, that plea does not immediately crystallise into a conviction, but rather sits on the court record awaiting the outcome of the trial in relation to murder. If the accused is convicted of murder, then the plea of guilty to manslaughter will become redundant and fall away. If, on the other hand, the accused is acquitted of murder, then the trial judge will at that point enter a conviction on the basis of the plea of guilty to manslaughter and proceed to sentence the accused for manslaughter. On the prosecution approach, by reason of the plea of guilty (and committal for sentence) on the charge of manslaughter, the accused will only be put in the charge of the jury on the charge of murder, and not manslaughter.
The defendant contests this analysis and approach. He contends that his plea of guilty to manslaughter, not having been accepted by the prosecution, falls away and is of no legal status (regardless of any evidential status that it might have). He contends that this is so despite the inclusion of manslaughter as an express alternative on the Magistrates Court Information, and indeed goes further and contends that the Director was not entitled to charge it as an express alternative and that the Information is void, and a legal nullity, to that extent. As such, the defendant contends that there was no basis for him to be committed for sentence on the charge of manslaughter. He contends that he should be arraigned on murder, and upon his plea of not guilty, he should be put in the charge of the jury on the charges of both murder and manslaughter.
In the alternative to the above, the defendant contends that if the prosecution analysis and approach is sound, then he entered his plea of guilty to manslaughter following advice from his senior counsel which was premised upon a different understanding as to the implications of that plea, and that he should be granted permission to change his plea under s 119(1) of the Criminal Procedure Act 1921 (SA).
Background
HJS, along with two other accused (EN and SN), was charged with various offences pursuant to an Information dated 13 March 2020 and filed by the Director of Public Prosecutions in the Magistrates Court (the MC Information). The MC Information contained four counts, all of which were said to arise out of an altercation, or series of altercations, that occurred at an Elizabeth Grove address on 5 February 2019.
· Count 1 charged all three accused with assaulting DS, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The alleged offending was aggravated on the basis that it involved the use (or threatened use) of offensive weapons and was committed in company.
· Count 2 charged HJS and SN with causing harm to DS, intending to cause her harm, contrary to s 24(1) of the CLCA. The alleged offending was again aggravated, on the same basis.
· Count 3 charged HJS and EN with the murder of NL, contrary to s 11 of the CLCA.
· Count 4 charged HJS and EN with having unlawfully killed NL, contrary to s 13 of the CLCA.
By way of a general overview of the factual context for these charges, the prosecution case is that at the time of the alleged offending HJS was in a relationship with SN. EN is SN’s brother. All three were residing together at the Elizabeth Grove address where the alleged offending took place. Both EN and the deceased (NL) had previously been in relationships with DS, and indeed she had given birth to children by both men. There was a history of tension between EN and the deceased.
The prosecution case is that in the lead-up to the alleged offending on 5 February 2019, EN became aware that DS and the deceased were spending time together. This led to EN threatening the deceased in various phone and Facebook messages exchanged between him and DS. In the messages that they exchanged during the day of 5 February 2019, DS and EN arranged for DS and the deceased to attend EN’s address at Elizabeth Grove.
It is alleged that the deceased and DS, together with two other women, subsequently arrived by car at that address. EN, SN and HJS all emerged from the house at that address. EN and the deceased immediately engaged in a fist fight in the front yard, which progressed to the carport. DS was holding a pole and briefly entered the front yard on two occasions, but otherwise remained on the footpath. SN entered the carport and is alleged to have hit the deceased with a bat.
The deceased soon emerged from the carport, apparently retreating down the driveway towards the road, but was followed by EN and SN. It is alleged that at that point, HJS exited the front door of the house holding a wooden paddle and a knife, and approached and attacked the deceased with both weapons. The prosecution case is that the fatal stab wound to the deceased was inflicted during this attack. It is this attack that founds the charge of murder against HJS.
It is further alleged that whilst the deceased was retreating to the road following this attack, DS (who was still on the footpath) was assaulted by all three accused (with both HJS and SN using weapons). This attack is the foundation for the charge of aggravated assault of DS.
It is further alleged that following an altercation between SN and DS, both HJS and EN further attacked DS. This attack is the foundation for the charge of aggravated cause harm with intent to cause harm to DS.
Finally, it is alleged that HJS and EN then chased the deceased over the road before proceeding to punch and kick him. The deceased collapsed on the side of the road. He was later transported to hospital by ambulance, but died shortly after arrival.
The prosecution case is that the deceased’s cause of death was a stab wound to the back of the right chest, which penetrated his right lung inducing cardiovascular and respiratory collapse.
The committal proceedings in the Magistrates Court
On 24 March 2020, there was an answer charge hearing in the Magistrates Court. Each of the defendants was represented.
Counsel for HJS indicated that his client would be entering a plea of not guilty to counts 1, 2 and 3 on the MC Information, and guilty to count 4 on that Information. The Magistrate enquired of the prosecutor whether that plea was “to be accepted in satisfaction or not?” The prosecutor responded “no, it’s not your Honour. 4 is an alternative to 3 but it is not accepted by the prosecution. If that can be recorded.”
After counsel for the other accused indicated that their clients would be pleading not guilty to all of the charges against them, the accused had the charges read to them. As foreshadowed, all of the accused pleaded not guilty to each of the offences against them, save that HJS (having pleaded not guilty to counts 1 to 3) pleaded guilty to the count 4 allegation of manslaughter. Following those pleas, the Magistrate said:
Very well. We will note that the plea from [HJS] to count 4 is not accepted in satisfaction of the Information and the defendants will be committed to trial to the Supreme Court sitting in Adelaide on 15 June [2020] at 10 a.m.
The Magistrate then addressed some other matters not presently relevant.
While the Magistrate did not make any express reference to HJS being committed for sentence on the manslaughter matter, the certificate of record from the Magistrates Court states that as the outcome of the hearing on 24 March 2020. Further, and consistently with this, the Magistrates Court subsequently issued a “committal for sentence” form in respect of the count 4 charge of manslaughter against HJS, and “committal for trial” forms in respect of the balance of the charges against HJS and the other accused.
Arraignment in the Supreme Court
The Director of Public Prosecutions filed an Information in the Supreme Court on 22 May 2020 (the SC Information). The SC Information involved some changes to, and reordering of, the charges against the three accused. It contained the following counts:
·    Count 1 charged HJS with the murder of NL.
·    Count 2 charged all three accused with aggravated assault of DS.
·    Count 3 charged HJS and SN with aggravated causing harm with intent to cause harm to DS.
·    Count 4 charged HJS and EN with aggravated causing harm with intent to cause harm to NL.
It can thus be seen that counts 2 and 3 of the SC Information replicated counts 1 and 2 of the MC Information. Count 4 was a fresh charge against HJS and EN arising out of the final attack upon the deceased after they had chased him over the road. The SC Information did not include any charge of murder or manslaughter against EN. As for the charge of murder against HJS, this became count 1 on the SC Information (having been count 3 on the MC Information). The SC Information does not include any express alternative charge of manslaughter against HJS.
At the first arraignment hearing in this Court, the issues outlined at the commencement of these reasons emerged. Having taken pleas of not guilty from the various accused in relation to counts 2, 3 and 4, I listed the matter for argument in relation to the status of HJS’s plea of guilty in the Magistrates Court to the charge of manslaughter, and the implications of this for the trial of the charges against him.
Plea of guilty to an alternative or lesser offence
Where a defendant is charged with an offence (the primary offence), he may plead not guilty of that offence but guilty of any alternative or lesser offence of which he might be found guilty on the relevant Information (the alternative offence).[1] And that is so regardless of whether or not that alternative offence is expressly charged as a separate count on the Information.
[1] Subject to any statutory qualification, such as that identified by the Court in R v Muldoon (2015) 123 SASR 1 at [39] in relation to the ability to plead to alternative offences under s 25 of the CLCA in the Magistrates Court.
Upon a defendant entering a plea of guilty to the alternative offence, it is a matter for the prosecution to determine whether or not that plea is accepted in satisfaction of the primary offence charged on the Information. There is no role for the court in reviewing or overruling the prosecution’s determination to accept or reject the plea of guilty.[2]
[2] Maxwell v The Queen (1996) 184 CLR 501 at 513-514 (subject only to the need to prevent an abuse of process); R v Collins; ex parte Attorney-General [1996] 1 Qd R 631 at 639; Attorney-General’s reference under s 693A of theCriminal Code (2002) 26 WAR 197 at [11]-[12].
If the prosecution accepts the plea of guilty to the alternative offence, then the defendant will be convicted of that offence, and the conviction operates as an acquittal of the primary offence.[3]
[3] See s 133 of the Criminal Procedure Act 1921 (SA).
If the prosecution does not accept the plea of guilty to the alternative offence in satisfaction of the primary offence, then the procedure that follows may depend upon whether or not the alternative offence has been expressly charged on the Information.
The first procedure
Where the defendant pleads guilty to an alternative offence that has not been expressly charged on the Information, but that plea is not accepted by the prosecution in satisfaction of the primary offence, then the plea of guilty to the implicit alternative offence is deemed to have been withdrawn. In this situation, the trial proceeds in relation to the primary offence, although the trier of fact (where so directed) is entitled to return a verdict of guilty to any available alternative offence in the event of an acquittal on the primary offence.
Authority for this first procedure in the situation of a plea of guilty to an implicit alternative offence may be found in R v Hazeltine.[4] In this jurisdiction there is authority in R v Zampogna.[5]
[4] R v Hazeltine [1967] 2 QB 857.
[5] R v Zampogna (2003) 85 SASR 56 at [15]; see also R v Ballam (2016) 126 SASR 189 at [34]-[41].
The reason the rejected guilty plea is deemed to have been withdrawn is that in cases where there is only one count on the Information, there is only one count in respect of which the defendant can be put in the charge of the jury for determination. And there can be only one effective plea to that count.[6]
[6] R v Hazeltine [1967] 2 QB 857 at 861-862.
It follows from the rejection of the plea of guilty to the alternative offence, and it having been deemed to have been withdrawn, that it is of no legal effect. It may be described as a legal nullity.[7]
[7] R v Hazeltine [1967] 2 QB 857 at 862.
However, the plea may nevertheless have an evidential effect. It is an admission of the matters which are inherent in it.[8] Whilst not conclusive, it is evidence against the defendant, the significance of which, like any other admission, will depend upon the other evidence at trial. It may be relied upon by the prosecution as evidence of an admission of the matters inherent in the plea in proof of the primary offence. Further, in the event that the trier of fact were to acquit the defendant of the primary offence, and in considering its verdict in relation to the alternative offence, the trier of fact may act upon the plea as establishing all of the elements of the alternative offence. In other words, the plea may, for practical purposes, be conclusive of the accused’s guilt of that alternative offence.
[8] R v Zampogna (2003) 85 SASR 56 at [15]; R v Hazeltine [1967] 2 QB 857 at 862.
The second procedure
A different procedure may be available where the plea of guilty is to an alternative offence that is expressly charged on the Information. The difficulty that arises from the inability to have more than one effective plea to a single charged count does not arise in this situation.
In this situation, if the plea of guilty to the alternative offence is not accepted in satisfaction of the primary offence, then the plea may nevertheless be recorded by the court (or “remain on the file”),[9] rather than being treated as having been withdrawn or as a legal nullity.
[9] R v Cole [1965] 2 QB 388; R v Hazeltine [1967] 2 QB 857 at 862.

However, the allocutus is not administered at that point in time, and the court does not otherwise at that point proceed to sentence on that alternative offence. As such, the plea does not at that point mature or crystallise into a conviction for the alternative offence. As Roberts-Smith J explained in Perejmibida v Skelcher:[10]
A plea of guilty and a conviction in consequence of that plea are two separate steps in criminal procedure. A clear and unambiguous plea of guilty is an admission of all the facts essential to prove the charge: O’Neill [1979] 2 NSWLR 582; Sagiv (1986) 22 A Crim R 73 at 81. Such a plea however, admits no more than the essential ingredients of the offence: Di Camillo v Wilcox [1964] WAR 44; Slater v Marshall [1965] WAR 222.
A plea of guilty does not by itself amount to a conviction. It is no more than a formal admission by the defendant. It is an admission which neither the Crown nor the court is obliged to accept. Conviction is the act of the court not that of the defendant: R v Collins; Ex parte Attorney General [1996] 1 Qd R 631. There is no conviction until there is an acceptance of the plea amounting to a determination of guilt by the court: Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180. The judge or magistrate must take some further step, either by formal announcement of a conviction or indirectly, by words or conduct, such as proceeding to deal with the issue of sentence: Griffiths (1977) 137 CLR 293; Cole [1965] 2 QB 388. It is not correct to say that a defendant has not been convicted until sentenced – a conviction is a finding of guilt by a court and if not announced expressly, such a finding will ordinarily be implicit in the court embarking upon the sentencing process: R v Robertson and Golder [1987] QB 920.
[10] Perejmibida v Skelcher (2002) 127 A Crim R 549 at [26]-[27].
As the plea of guilty to the alternative offence has not at that point matured into a conviction, there is no scope for the doctrine of autrefois convict to prevent the trial proceeding in respect of the primary offence charged.
Rather, the matter proceeds to trial on the primary offence, with the defendant placed in the charge of the jury on only the primary offence. The plea of guilty to the alternative offence may be relied upon by the trier of fact for whatever evidential value it might have in respect of proof of the primary offence, but it otherwise remains on the file awaiting the outcome of the trial on the primary offence.
If the trier of fact finds the defendant guilty of the primary offence, then the defendant will be convicted and sentenced for that offence only. The plea of guilty to the alternative offence will have no work to do. The defendant cannot be sentenced for the alternative offence because to do so would offend the principle of double jeopardy.[11]
[11] R v Murphy (1988) 52 SASR 186; Pearce v The Queen (1998) 194 CLR 610.
However, if the trier of fact acquits the defendant of the primary offence, then the court will proceed to administer the allocutus and sentence the defendant on the alternative offence. It is only at this point of the court acting upon the plea of guilty to the alternative offence, and unequivocally embarking upon the process of sentencing, that the earlier plea of guilty to the alternative offence crystallises into a conviction.
There is authority for this second procedure in the situation of an expressly charged alternative offence in R v Cole[12] (and in the reasons of the Court in R v Hazeltine[13] distinguishing that case on the basis that the alternative offence was not in the latter case charged expressly on the Information). In this jurisdiction, there is authority in R v Murphy.[14] In that case, White J said:[15]
[12] R v Cole [1965] 2 QB 388; applied in R v Bebbington (1978) 67 Cr App R 285.
[13] R v Hazeltine [1967] 2 QB 857.
[14] R v Murphy (1988) 52 SASR 186 at 189 (White J), 194 (Cox J) and 203 (Perry J); see also R v Brady & Smythe (2005) 92 SASR 135 at [38]; R v F, KV [2019] SADC 53 at [16]-[18].
[15] R v Murphy (1988) 52 SASR 186 at 189.
With respect, I agree that the correct procedure is that set out in J F Archbold, Pleading Evidence and Practice in Criminal Cases (42nd ed, 1985), p 267, par 4-61 which reads:
"Where, for example, two offences, one serious, the other less serious are alleged in separate counts in the indictment a different procedure must be followed: R v Cole [1965] 2 QB 388; and see R v Hazeltine [1967] 2 QB 857 applied in R v Thompson [1980] Crim LR 188.
In Cole (supra) the defendant pleaded not guilty to a count alleging conspiracy to rob, not guilty to count two which alleged robbery with violence but guilty to count three which alleged he received part of the proceeds of the robbery. On the appeal, the court was invited to lay down what the proper practice is in such circumstances. Lord Parker CJ said (at 394; 203-204):
′... in the ordinary case, a judge should allow the plea of guilty to stand. In those circumstances, the defendant will be put in charge of the jury only on the serious charge, in this case the armed robbery. If he is acquitted of the armed robbery, then he can be sentenced on the count to which he has pleaded guilty. If on the other hand he is convicted of the armed robbery, then the proper course for the judge is to allow the count to which he pleaded guilty to remain on the file and not to proceed to sentence him.′
A plea of guilty ranks as a conviction not when it is recorded but when the defendant is sentenced: Cole.
Cole was considered in R v Bebbington (1978) 67 Cr App R 285, CA, where B had pleaded 'guilty' to possessing a stated amount of cannabis but 'not guilty' to possessing the same cannabis with intent to supply. Following his conviction for the latter offence he was sentenced to four years' imprisonment and a concurrent period of 18 months in respect of the count to which he had pleaded guilty. On the appeal it was held, applying Cole, that no separate sentence should have been passed on the possession count.
Both in Cole and in Bebbington (supra), the count to which the accused pleaded guilty was alternative to the count upon which he was tried."
See also the extensive discussion of the topic of greater and lesser charges when the greater charge has the same elements as the lesser charge but a further element, in R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219. It would, in my opinion, be an abuse of the process of the court if the appellant were allowed in the circumstances of this case to circumvent his plea of guilty on a charge which had been stood over pending the trial on the greater count by the device of insisting upon a direction on indecent assault in the hope that that course would prevent the judge from doing what he would normally do after an acquittal for rape, namely, proceed to sentence on the charge stood over.
Issues arising
Having identified these two procedures that may be followed when there is a plea of guilty to an alternative offence that is not accepted by the prosecution, two interrelated issues arise. The first is whether there is any principle which prevents the prosecution charging manslaughter as an express alternative to murder. The second is whether the prosecution’s decision to charge an express alternative requires that the second procedure be followed.
The defendant in this case contends that the prosecution was not entitled to charge manslaughter as an express alternative, and that count 4 of the MC Information, and hence also the plea of guilty to that count, were void.
The prosecution, on the other hand, contends that it was entitled to charge manslaughter as an express alternative, and that having done so, and a plea of guilty having been entered but not accepted by the prosecution, the Court must follow the second procedure.
Manslaughter as an expressly charged alternative to murder
In relation to the first issue, it is for the prosecution to determine the charges to be laid,[16] including whether or not to include a count expressly charging an available alternative offence, as opposed to relying upon it as an implicit alternative.
[16] Pursuant to the Director’s power under s 7(1)(a) of the Director of Public Prosecutions Act 1991 (SA); see Maxwell v The Queen (1996) 184 CLR 501 at 513-514, 534.
It is also a well accepted corollary of this that the court does not have any role in determining the charges to be laid, including the extent to which any available alternatives appear as separate counts on the Information. That said, the court does retain an important role in determining which (if any) of any implicit alternatives should be the subject of direction and hence left to the jury for its consideration and verdict. While the submissions of the parties will be relevant in this regard, they will not necessarily be determinative of whether an alternative offence should be left to a jury. The trial judge must ultimately do whatever is necessary in this respect to ensure a fair trial.[17]
[17] James v The Queen (2014) 253 CLR 475 at [38].
While conceding that the prosecution generally has a discretion as to the inclusion of an express alternative on an Information, counsel for the defendant nevertheless contends that this discretion does not extend to the express charging of manslaughter as an alternative to murder, as occurred here on the MC Information. This was said to follow from the unique relationship between murder and manslaughter, and in particular the fact that the two are not derived from separate felonies, but rather were historically but two descriptions or manifestations of the one felony, namely unlawful homicide.
I accept the premise of the defendant’s contentions, namely that the historical derivations of murder and manslaughter lie in one felony,[18] and indeed that the uniqueness of the relationship between them continues to have implications for the operation of these offences.[19]
[18] James v The Queen (2014) 253 CLR 475 at [17]-[19].
[19] As seen, for example, in the context of the High Court’s consideration of the implications for a murder conviction of a misdirection (or failure to direct) in relation to manslaughter in Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 219 CLR 1, which implications were held not to extend to other primary and alternative offences in James v The Queen (2014) 253 CLR 475.
However, I do not think that these considerations are necessarily determinative of modern charging practices, or otherwise operate to preclude the prosecution from charging manslaughter as an express alternative.
So far as I am aware, the practice in this jurisdiction has been to charge only murder, with manslaughter left to be addressed as an implicit alternative. This practice is supported by authority,[20] and is consistent with the statement in Archbold, Criminal Pleading, Evidence and Practice that “[i]t is not desirable to abandon the long-established practice of indicting only for murder in cases where manslaughter would, or may, be left to the jury.”[21]
[20] R v Downs (1985) 3 NSWLR 312 at 329-330, citing Ryan v The Queen (1967) 121 CLR 205 at 209.
[21] Archbold, Criminal Pleading, Evidence and Practice, 2019 edition, at [4-529].
In support of this statement, the authors of Archbold rely upon R v Saunders.[22] In that case, Lord Ackner said:[23]
Reg. v. Collison is not an authority for the proposition contended for by Mr. Townend that where there is a possibility on a count of murder of a jury returning a verdict of manslaughter, the indictment should contain two counts. Not only would this be contrary to long established practice, but I wholly agree with the observation of Lawton L.J. when giving the judgment of the court in the instant appeal that this would tend to confuse the jury. Moreover, such a course would not deal with the case, which is not uncommon, in which the possibility of a verdict of manslaughter only becomes apparent during the course of the trial. There is the further important point that there are cases in which the prosecution, on the basis of the evidence which they propose to present, consider that the only true verdict is that of murder. To include a separate count of manslaughter could well lead to the suggestion by the defence that since the prosecution have charged manslaughter, manslaughter must on the facts be an acceptable alternative.
[22] R v Saunders [1988] AC 148.
[23] R v Saunders [1988] AC 148 at 162-163.
Whilst discouraging the charging of manslaughter as an express alternative, Lord Ackner did not suggest there was any legal impediment to this being done. Indeed, his Lordship’s observations implicitly assume that it would be a legally permissible course.
In support of expressly charging an alternative offence such as manslaughter that would otherwise be available as an implicit alternative, the prosecution contends that there may be some advantage in it doing so: for example, to ensure that the defendant has fair notice of the prosecution position that the alternative offence may be available to the trier of fact; or to serve as a reminder and opportunity for the defendant to consider pleading guilty to the alternative offence at an early stage so as to secure an appropriate sentencing discount if he is not ultimately convicted of the primary offence. While an early guilty plea to an implicit alternative which is deemed to have been withdrawn (in accordance with the first procedure) may be effective in this respect, the existence of an express alternative may assist in making the position more clear.
Whilst I do not consider these to be convincing reasons for charging manslaughter as an express alternative to murder, and would not wish to encourage this practice, I am not persuaded that there is any legal impediment to the prosecution proceeding in this way. I thus do not accept the submission of the defendant in this case that the inclusion of manslaughter as an express alternative offence on the MC Information rendered it void or a legal nullity.
Determining the procedure to apply
In a case where the alternative offence is not expressly charged, I can see no basis for departing from the first procedure that I have outlined.
However, an issue which arises is whether, in a case such as the present where the alternative offence is expressly charged, the Court must – as the prosecution contends – proceed in accordance with the second procedure, or whether there is some ability or discretion on the part of the Court to nevertheless adopt the first procedure.
As Judge Muscat recently pointed out in his helpful consideration of the topic in R v F, KV,[24] Vanstone J proceeded in accordance with the first procedure in R v Holder[25] in a situation involving a plea of guilty to an expressly charged alternative; and I did likewise in R v Pearce.[26]
[24] R v F, KV [2019] SADC 53 at [16].
[25] R v Holder [2018] SASC 169 at [4].
[26] R v Pearce [2019] SASC 33 at [8].
In R v Holder, the defendant was charged with the primary offence of attempted murder (count 1), and an express alternative of attempted aggravated causing serious harm with intent to cause serious harm (count 2). He pleaded not guilty to count 1, but guilty to count 2. After noting that the plea of guilty to the alternative offence was not accepted by the prosecution in satisfaction of the primary charge, and that the defendant had elected for trial by judge alone, Vanstone J proceeded on the basis that the plea of guilty to the alternative offence was deemed to have been withdrawn, and that the defendant stood trial on both charges. In holding that it was appropriate to proceed in this way, her Honour cited R v Zampogna,[27] albeit without adverting to either the potentially significant difference that the alternative offence in that case had not been expressly charged on the Information, or the approval of the second procedure by the Court in R v Murphy.[28]
[27] R v Zampogna (2003) 85 SASR 56.
[28] R v Murphy (1988) 52 SASR 186.
In R v Pearce, the defendant was charged with the primary offence of attempted murder, and an express alternative of aggravated endangering life. Again, the defendant had elected to proceed with trial by judge alone, and pleaded not guilty to the primary offence but guilty to the express alternative. With the acquiescence of the parties in that case, I followed the procedure adopted by Vanstone J in R v Holder.
While R v Holder and R v Pearce are thus both illustrations of the first procedure being followed despite a plea of guilty to an express alternative, they are of limited precedential value in circumstances where neither involved reference to the decision in R v Murphy, or indeed to the potential availability of the second procedure.
Significantly, however, there is interstate authority which provides considered support for the availability of the first procedure in cases where the plea of guilty is to an expressly charged alternative offence.
In Director of Public Prosecutions v Collins[29] the defendant was relevantly charged with the primary offence of trafficking in a drug of dependence (count 2) and an expressly charged alternative offence of possessing a drug of dependence (count 3). The defendant pleaded not guilty to count 2, but guilty to count 3. While it was not entirely clear at the time, it appears that the trial judge followed the second procedure, putting the defendant in the charge of the jury on only the primary offence. While not suggesting that this involved any error on the part of the trial judge, and indeed noting the availability of this second procedure in England and South Australia, the Victorian Court of Appeal (Warren CJ, Winneke P and Ormiston JA) expressed a preference for the first procedure (being the practice that had been endorsed by an earlier decision in Victoria in R v Broadbent[30]).
[29] Director of Public Prosecutions v Collins (2004) 10 VR 1.
[30] R v Broadbent [1964] VR 733.
After referring to the adoption of the first procedure in R v Broadbent,[31] and the adoption of the second procedure in England in R v Cole[32] for cases involving expressly charged alternative offences, Winneke P said:[33]
[31] R v Broadbent [1964] VR 733 at 735-736.
[32] R v Cole [1965] 2 QB 388 at 394-395.
[33] Director of Public Prosecutions v Collins (2004) 10 VR 1 at [27].
It is not clear to me, from such researches as I have been able to make, whether judges in this State follow the procedure outlined in Broadbent or the procedure followed in England where an accused person pleads not guilty to a more serious charge, but guilty to a lesser offence charged in a separate count on the same presentment. So far as I am aware, the practice outlined in Broadbent has not been criticized by any later judgment of the Court of Criminal Appeal in this State, nor by any judgment of this Court. I can see no good reason why it should not continue to be followed. It is a practice which will probably be of more relevance to County Court judges who frequently encounter presentments containing multiple counts some of which are lesser offences to more serious charges alleged in the same presentment. I note that the very experienced editor (the former Judge Mullaly QC) of Victorian Trial Manual, Vol 2, para 15.602 endorses the practice approved by Broadbent; namely that:
… the trial proceeds on all counts, and the jury may act on the guilty plea so far as it relates to any count on the presentment.
It seems to me, if I might say so, a very efficient method of clearing the presentment, and more likely to eliminate the type of problem which arose in this case. Nevertheless, for the sake of completeness, I should mention that it appears that, in South Australia, the English practice established in R v Cole is recommended.[34] On the other hand, it would seem that the practice suggested in Broadbent is preferred in Queensland. In R v Collins[35], McPherson JA and Lee J, having referred to the practice followed in England and South Australia, on the one hand, and the practice identified in Broadbent, said that they regarded the latter as “the more sensible” because it seemed:
… 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.
Fitzgerald P, who agreed with McPherson JA and Lee J, said (at 635) that whilst he was “disinclined to state a general rule [of practice]”, he did not “dissent from the proposition that it will often be preferable to take the jury’s verdict on all charges”. It seems to me that, in the circumstances which existed in this case, it is preferable that the practice stated in Broadbent should be followed, and that the judge allow the trial to proceed on the whole presentment, whether or not the accused adheres to or seeks to change his plea to the lesser count.
[34] See R v Murphy (1988) 52 SASR 186 at 189 per White J.
[35] R v Collins; ex parte Attorney-General [1996] 1 Qd R 631 at 640.

Warren CJ agreed with Winneke P’s reasons. Ormiston JA also agreed with Winneke P, but added the following:[36]
I agree with the judgment of the President and further with his observations as to the correct procedure to be adopted by trial judges when an accused seeks to plead guilty to an alternative or included offence, whether or not appearing on the presentment. I would add that I do not believe that any of the references to R v Cole[37] in the judgments of two members of the majority and the dissenting judge in Maxwell v The Queen[38] reflects approval of the practice adopted in England and described in the former case. If, in the exercise of the prosecutor’s discretion described in Maxwell, the plea of guilty is not accepted in satisfaction of the presentment, then the prosecution is electing to lead evidence on the more serious count and necessarily on any other relevant alternative or included charges.[39]
[36] Director of Public Prosecutions v Collins (2004) 10 VR 1 at [30].
[37] R v Cole [1965] 2 QB 388.
[38] Maxwell v The Queen (1996) 184 CLR 501 per Gaudron and Gummow JJ at 530 and 532 and per Toohey J at 524.
[39] If the prosecution accepts a plea to an unrelated count, then it should file over a new presentment making no reference to the count in respect of which a plea has been accepted. That count will then ordinarily be quite irrelevant to the trial which will follow thereafter.
In my view, where the defendant pleads guilty in a superior court to an expressly charged alternative offence, and the prosecution does not accept that plea in satisfaction of the primary offence, then it is a matter for the Court whether to follow the first or second procedure. Given the endorsement of the second procedure in this jurisdiction in R v Murphy, it seems to me that this will generally be an appropriate and convenient procedure to adopt. Indeed, it would seem to be consistent with the modern trial practice of encouraging the jury to focus upon the matters genuinely in dispute. Having regard to my later observations as to the effect of s 113(2) of the Criminal Procedure Act in respect of guilty pleas in the Magistrates Court, it might also be said that this, at the very least for reasons of consistency, supports the adoption of the second procedure in this jurisdiction in the case of guilty pleas in the superior courts. However, I would stop short of stating that there is a general rule of practice in this State. Certainly, I do not think there is any legal impediment to the Court following the first procedure where it considers it preferable to do so.
Indeed, in the case of a plea of guilty in this Court to an expressly charged alternative of manslaughter that is not accepted by the prosecution, I would be inclined to follow the first procedure. I accept that it would be possible to instruct a jury that they are only required to return a verdict on the charge of murder, and that in the event that they acquit the defendant of murder it will be for the Court to convict and sentence the defendant on his plea of guilty to manslaughter.[40] But in my view, particularly in a case such as the present where there may well be a need to direct the jury as to the requirement that the prosecution exclude the possibility of provocation or self-defence (including excessive self-defence) before there can be a conviction for murder, it will generally be preferable that both murder and manslaughter be left for the jury’s determination. In my view, there is something of an artificiality in requiring a jury to consider whether they are satisfied beyond reasonable doubt that circumstances amounting to manslaughter (by reason of provocation or excessive self-defence) have been excluded, but at the same time not leaving manslaughter as a verdict available to the jury.
[40] This assumes that the Court informing the jury that it will act on the plea of guilty to manslaughter will be sufficient to address the High Court’s concerns in Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 219 CLR 1.
A difficulty arises in the present case, however, because the plea of guilty to the alternative offence of manslaughter was entered in the Magistrates Court rather than in this Court. The prosecution contends that, at least in the case of a plea entered at an answer charge hearing in the Magistrates Court, the second procedure has become legislatively enshrined by the recent amendments to the Criminal Procedure Act,[41] and in particular the introduction of s 113(2) of that Act.
[41] That is, the amendments made by the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA), with a commencement date of 5 March 2018.
Section 113 of the Criminal Procedure Act addresses the procedure to be followed by Magistrates at the answer charge hearing. In particular, s 113(2) provides:
(2)In cases where the defendant appears to answer the charge, the Magistrates Court will proceed as follows:
(a)     the charge will be read and the defendant will be asked how the defendant pleads to it;
(b)     the defendant may then—
(i)      plead guilty; or
(ii)     deny the charge; or
(iii)    assert previous conviction or acquittal of the charge,
and if the defendant refuses or fails to plead to the charge, the defendant will be taken to have denied the charge;
(c)     the Court will then proceed as follows:
(i)if the defendant pleads guilty—the Court may (subject to section 116(1))—
(A)     determine and impose sentence on the defendant; or
(B)     commit the defendant to a superior court for sentence;
(ii)if the defendant denies the charge—subject to subsection (3), the Court will consider the evidence for the purpose of determining whether it is sufficient to put the defendant on trial for an offence;
(iii)if the defendant asserts previous conviction or acquittal, the Court will reserve the questions raised by the plea for consideration by the court of trial and proceed with the committal proceedings as if the defendant had denied the charge.
Assuming an alternative offence has been expressly charged, and upon a plea of not guilty to the primary offence, the alternative offence will be read to the defendant. Under s 113(2)(b) the defendant may then plead guilty or deny the charge.[42] If the defendant denies the charge, then under s 113(2)(c)(ii) the Magistrate must determine whether to commit the defendant for trial on that charge. However, if the defendant pleads guilty, then under s 113(2)(c)(i), the Magistrate may either proceed to sentence the defendant,[43] or commit the defendant to a superior court for sentence. Importantly, s 113(2) does not in its terms confer the Magistrate with any power to commit the defendant for trial on the alternative charged offence where the guilty plea has not been accepted by the prosecution in satisfaction of the primary charged offence. In other words, it appears to dictate that the second procedure be followed rather than leaving the appropriate procedure to be determined according to the practice or discretion of the superior court.
[42] Or assert previous conviction or acquittal of the charge (s 113(2)(b)(iii)).
[43] Subject to s 116(1).
I observe in passing that by committing the matter for sentence on the alternative offence, this does not involve the Magistrate convicting the defendant on their plea. Rather, for the reasons explained earlier, that does not occur until the superior court embarks unequivocally upon the process of sentencing the defendant (for example, by administering the allocutus). As such, I do not accept that the defendant’s committal for sentence on the alternative charge of manslaughter entitles him to enter a plea in bar of autrefois convict in respect of the primary offence of murder.
It might be argued that s 113(2) was not intended to operate in respect of express alternative offences. I accept that in cases where there is a plea of guilty to the primary offence, there will be no occasion for the alternative charge to be read to the defendant under s 113(2). However, I do not accept that it follows from this that the section does not apply in situations where there is a plea of not guilty to the primary offence, with the result that the express alternative offence is read to the defendant.
It might also be argued that while s 113(2) does not expressly confer the Magistrate with power to commit a defendant for trial on an alternative offence to which he had pleaded guilty, it does not preclude the Magistrate doing so. While s 113(2)(c)(i) states that the Magistrate “may” sentence the defendant or commit him to a superior court for sentence, I consider it doubtful that this could be construed as reserving a discretion to the Magistrate to commit the defendant for trial on the alternative offence to which he has pleaded guilty.
Finally, a defendant having been committed for sentence on an alternative offence, I do not think the superior court can simply ignore the basis of that committal and proceed as though the defendant has been committed for trial on that offence. While the committal for sentence serves, for practical purposes, to enliven the superior court’s jurisdiction, it is a jurisdiction to sentence (if and when appropriate) and not to put on trial. For so long as the plea stands, it seems to me that the basis for the committal to the superior court will dictate that course of the proceedings in the superior court.
In summary, it seems to me that in circumstances where the defendant first enters a plea of guilty to an expressly charged alternative offence in the Magistrates Court, then the defendant should be committed for sentence on that offence, in accordance with the second procedure. While I consider this an undesirable course in a case where manslaughter is the alterative offence, this appears to be an unavoidable consequence of the legislative regime in a case where the prosecution elects to charge it as an express alternative, and the defendant pleads guilty to that alternative in the Magistrates Court.
All of that said, even if the defendant would otherwise have been bound by his plea in the Magistrates Court, and hence to the course inherent in the second procedure, this is subject to the defendant being granted permission to change his plea to the alternative offence. In the present case, for the reasons which follow, I consider that it is appropriate to grant the defendant that permission.
Permission for the defendant to change his plea
In the alternative to his contention that the express charge of manslaughter is void (which I have rejected), the defendant seeks permission under s 119(1) of the Criminal Procedure Act to change his plea in relation to the charge of manslaughter.
Section 119 provides as follows:
119—Change of plea following committal for sentence
(1)     A person who has been committed to a superior court for sentence in relation to a charge of an offence may only enter a change of plea in the superior court in relation to that charge with the permission of the court.
(2)     If the superior court gives permission for a change of plea, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.
(3)     The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.
In the case of an application on appeal to withdraw a plea of guilty following a conviction upon the basis of that plea, the test is whether the circumstances in which the plea was entered involved a miscarriage of justice.[44] By reason of the solemn nature of the acknowledgment of guilt ordinarily inherent in a plea of guilty, and the high public interest in the finality of legal proceedings, the courts have generally approached attempts on appeal to set aside a guilty plea with significant caution.
[44] Meissner v The Queen (1995) 184 CLR 132 at 141-142, 157; Tsavalas v Police [2016] SASC 103 at [13]-[17].
Similar considerations govern an application at first instance.[45] However, in considering whether it is appropriate to exercise the Court’s discretion at first instance to permit a defendant to withdraw or change his plea, much may depend upon the timing of the application. While any application to withdraw or change an apparently informed and deliberate plea of guilty should be approached with some caution,[46] the public interest in the finality of litigation is less of a concern when the Court has not yet acted upon the plea in any significant way. Indeed, prior to the relatively recent introduction of s 119 of the Criminal Procedure Act,[47] the position had been that a defendant did not require the Court’s permission to change his plea prior to his first arraignment in a superior court.
[45] R v Brooks (2006) 95 SASR 369 at 382; R v Pugh (2005) 158 A Crim R 302.
[46] Attorney-General v Kitchen (1989) 51 SASR 54.
[47] Through the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA), with a commencement date of 5 March 2018.
While s 119(1) now requires that a defendant who has been committed to a superior court for sentence obtain the permission of that court in order to change his plea in relation to the relevant charge, it also confers an unfettered discretion upon the court to grant that permission. It will be sufficient to obtain this permission that the court is satisfied that it is in the interests of justice that the defendant be permitted to change his plea.
Here the defendant relies upon a combination of circumstances said to justify the Court granting the permission sought.
The first is that the plea of guilty to manslaughter was entered under a misunderstanding as to the implications of that plea. I was informed by senior counsel for the defendant, Mrs Shaw QC, that the plea was entered following discussions with the prosecution that had led her to understand that the plea would not be accepted in satisfaction of the charge of murder. Significantly, she further informed me that she therefore assumed and believed – consistently with her vast experience in representing clients charged with murder – that this would result in the plea being treated as having been withdrawn, and that the defendant would be committed for trial on murder and manslaughter in accordance with the first procedure that I outlined earlier in these reasons. Mrs Shaw informed me that she did not appreciate that the prosecution would contend that because the alternative offence of manslaughter had been expressly charged as an alternative, the defendant should be committed for sentence on that charge in accordance with the second procedure. If she had appreciated that this course would be followed, it would have affected her advice to her client.
I have no hesitation in accepting what Mrs Shaw tells me, and regard it as a significant matter. To the extent that she was labouring under a misapprehension about the procedure that would follow from an unaccepted plea of guilty to manslaughter, it was a reasonable mistake to have made given her experience of the courts in this State routinely adopting the first procedure. She had not previously encountered an express alternative charge of manslaughter and, in my view quite reasonably, did not anticipate that it might dictate a different procedure.
It is true that the misapprehension was not one that involved any mistaken understanding of the substance of the charges or the factual allegations made against the defendant. I also accept that the plea may be construed as reflecting a consciousness of guilt of manslaughter, albeit that there may have been some scope for ambiguity as to the precise basis for that guilt.[48] However, the misapprehension nevertheless went to a fundamental matter, namely the defendant’s ability to have a trial at which any verdict of manslaughter would be a matter for the jury rather than the Court (acting upon a plea that had not been accepted by the prosecution).
[48] On the defendant’s submissions it was on the limited basis of extended joint enterprise rather than any basis that involved an admission that the defendant was causally responsible for acts resulting in the deceased’s unlawful death.
It is also relevant that even if the second procedure was available in this case, it is not clear from the transcript that this is what the prosecution or Magistrate intended would follow. The paperwork emanating from the Magistrates Court reflects the second procedure, but it was not something expressly adverted to during the hearing. As such, it cannot be said that the defendant acquiesced in the second procedure.
Next, the application to change the defendant’s plea was made at the earliest opportunity it could have been made following the realisation by those advising the defendant that the prosecution was contending for the second procedure. It was made prior to the defendant’s first arraignment in this Court, and hence prior to any plea being entered by him in this Court.
Given this early timing of the application to change his plea, granting the permission sought will not occasion any material prejudice to the prosecution, or otherwise interfere with the orderly progress of the proceedings in this Court. It is not suggested that the matter should be remitted to the Magistrates Court under s 119(2) of the Criminal Procedure Act for a preliminary examination of the charge.
In all of the circumstances, I am satisfied that the defendant has established that it is in the interests of justice that he be permitted under s 119(1) to change his plea to the charge of manslaughter despite having been committed for sentence on that charge. By reason of s 119(3), it will follow that the change of plea must not be made the subject of any comment to the jury at the defendant’s trial.
Conclusion and orders
For the reasons set out, I give HJS permission under s 119(1) of the Criminal Procedure Act to change his plea to manslaughter. I will proceed on the basis that his plea of guilty to manslaughter in the Magistrates Court has been withdrawn. I will further proceed upon the basis that the charge of murder on the Information laid in this Court carries with it the common law alternative of manslaughter. I will have HJS arraigned upon that count, and assuming he pleads not guilty to that charge, he will go to trial in the ordinary course with murder as the primary offence but with manslaughter being an available alternative should it arise on the evidence.