R v HJS

Case [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…

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R v HJS [2020] SASC 142
Case
[2020] SASC 142
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CaseChat Overview and Summary

In the matter of R v HJS, the defendant sought to withdraw and change his plea from guilty to manslaughter. The case originated from an altercation at an Elizabeth Grove address on 5 February 2019, involving the defendant, along with two other accused, EN and SN, and leading to charges against them. The defendant, HJS, was charged with murder, unlawful killing, and assault. The defendant argued that if the prosecution's analysis was correct, his plea of guilty to manslaughter was based on advice from his senior counsel that was premised on a different understanding of the plea's implications. Consequently, he sought permission to change his plea under s 119(1) of the Criminal Procedure Act 1921 (SA).

The court was required to determine whether it was in the interests of justice for the defendant to be permitted to change his plea from guilty to manslaughter. The court considered the defendant's argument that his plea of guilty was based on advice that was premised on a different understanding of the plea's implications. The court also took into account the prosecution's analysis and approach to the matter. Ultimately, the court concluded that it was in the interests of justice for the defendant to be permitted to change his plea to manslaughter under s 119(1) of the Criminal Procedure Act 1921 (SA).

The court found that the defendant had established that it was in the interests of justice for him to be permitted to change his plea to manslaughter. The court noted that the change of plea must not be made the subject of any comment to the jury at the defendant's trial. The court further noted that the charge of murder on the Information laid in the court carried with it the common law alternative of manslaughter. The court proceeded on the basis that the defendant's plea of guilty to manslaughter in the Magistrates Court had been withdrawn and that he would be arraigned upon the charge of murder. Assuming the defendant pleaded not guilty to the charge, he would 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.

The court granted the defendant permission to change his plea to manslaughter under s 119(1) of the Criminal Procedure Act 1921 (SA). The court further directed that the change of plea must not be made the subject of any comment to the jury at the defendant's trial. The court proceeded on the basis that the defendant's plea of guilty to manslaughter in the Magistrates Court had been withdrawn and that he would be arraigned upon the charge of murder. The court further directed that the charge of murder on the Information laid in the court carried with it the common law alternative of manslaughter.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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