R v James Howard Cook [No 2]

R v JAMES HOWARD COOK [No 2] [2005] ACTSC 124 (1 December 2005)

CRIMINAL LAW- murder- rejection of plea of guilty to manslaughter- application by Crown for leave to withdraw acceptance of plea of guilty in full discharge of the indictment – applications for leave to call evidence contradicting or qualifying agreed facts.

Evidence Act 1995 (Cwth), ss 191, 192
Supreme Court Rules, O 80 r 27

No SCC 99 of 2004

Judge:  Crispin J  
Supreme Court of the ACT
Date:  1 December 2005

IN THE SUPREME COURT OF THE     )
  )          No SCC 99 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

R

v

JAMES HOWARD COOK

ORDER

Judge:  Crispin J
Date:  1 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

the Crown be granted leave to withdraw the acceptance of the plea, but only subject to the following conditions:

(i)        that the Crown not adduce any evidence of admissions allegedly made by the accused following the Crown’s initial acceptance of the plea of guilty; and

(ii)that the Crown not adduce any evidence of, or otherwise seek to rely upon, the disputed passage in the further statement of facts orally communicated  to the Court during the sentencing proceedings.

1. On 1 February 2005 the accused was arraigned before Gray J on a single count of murder.  He entered a plea of not guilty to murder but guilty to manslaughter.  The Crown accepted that plea in full discharge of the indictment.  A pre-sentence report was ordered and the matter was adjourned for sentencing.

1. The proceedings were then listed before Higgins CJ on 22 April 2005.  A statement of agreed facts was tendered and other evidence, including the pre-sentence report previously ordered, was adduced.  When his Honour raised some concern as to the adequacy of the agreed facts, Mr Refshauge SC, the Director of Public Prosecutions, and Mr Salmon QC who appeared for the accused, sought a short adjournment and subsequently read onto the record a statement of further agreed facts.  However, after a lengthy debate with the Director, his Honour rejected the plea, finding, in essence, that the agreed facts did not support the proffered plea of manslaughter.

1. The matter was listed for trial by judge alone on 28 November 2005 after Higgins CJ disqualified himself from further hearing the matter.

1. On 7 November 2005 the parties sought rulings on the following issues:

°   whether the Crown is entitled to seek a verdict on the charge of murder without obtaining leave to withdraw its acceptance of the plea to manslaughter in full discharge of the indictment;

°   if not, whether leave should be granted; and

°   if so, whether an order should be made staying any further proceedings in respect of the charge of murder.

1. On 22 November 2005 I ruled that the Crown did require leave to withdraw its acceptance of the plea in full discharge of the indictment. 

1. I also noted that the parties had previously relied upon agreed statements of facts and pointed out that s 191(2)(b) of the