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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CaseChat Overview and Summary
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.
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