R v MacDONALD

[2000] NSWCCA 1

Reported Decision: 110 A Crim R 238

New South Wales

Court of Criminal Appeal

CITATION:	R v MacDONALD [2000] NSWCCA 1
FILE NUMBER(S):	CCA 60179/99
HEARING DATE(S):	17 December 1999
JUDGMENT DATE:	3 February 2000
PARTIES :	Regina v Peter Graeme MacDONALD
JUDGMENT OF:	Bell J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL :	Mr M Marien (Crown) Mr C Craigie (Appellant)
SOLICITORS:	SE O'Connor (Crown) TA Murphy (Appellant)
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Jurisdiction to deal with related offences (Criminal Procedure Act 1986 ((NSW) s 37 (old s 35)) - whether plea of guilty on arraignment constitutes 'conclusion of the trial of an accused person for an indictable offence'
LEGISLATION CITED:	Criminal Procedure Act 1986 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Crimes Legislation Amendment (Sentencing) Act 1999 Crimes Act 1900 Criminal Procedure Legislation (Amendment) Act 1990
CASES CITED:	Basarabas v The Queen (1982) 144 DLR (3d) 115 Regina v Faderman (1850) 1 Den C.C. 565, 169 ER 375
DECISION:	See para 26

IN THE COURT OF

CRIMINAL APPEAL

60179/99

BELL J

Thursday, 3 February 2000

REGINA v Peter Graeme MacDONALD

JUDGMENT

1 BELL J: On 15 December 1999 I made orders quashing the appellant’s convictions and sentences on each of four charges which had been dealt with in the District Court pursuant to Pt 10 of the Criminal Procedure Act 1986 (“the Act”) as it then stood. The appeal was brought under ss 5AD and 5AA of the Criminal Appeal Act 1912 which, relevantly, provide that the power of the Court of Criminal Appeal to hear and determine appeals in respect of convictions (and sentences) imposed pursuant to the exercise of jurisdiction under Pt 10 of the Act is to be exercised by a single judge as the Chief Justice may direct.

2    I now give my reasons for making those orders.

3 On 8 March 1999 the appellant appeared for trial in the District Court sitting at Broken Hill. He was jointly arraigned with Anthony Craig Boston upon an indictment charging him with the supply of a prohibited drug (methylamphetamine) being not less than the commercial quantity of the same contrary to ss 25(2) and 29 of the Drug Misuse and Trafficking Act 1985. The appellant pleaded guilty upon his arraignment. The proceedings were stood over to 9 March 1999 for submissions on sentence.

4 During the course of the sentence proceedings the court was invited to deal with certain outstanding offences with which the appellant had been charged at the time of his arrest. There was discussion as to the appropriate mechanism by which these matters might be disposed of. Ultimately it appears that the four matters were dealt with pursuant to the provisions of Pt 10 of the Act. Mr Craigie, who appeared on behalf of the appellant, contended that the court did not have jurisdiction so to do.

5 It is to be noted that the Act has been amended by the Crimes Legislation Amendment (Sentencing) Act 1999. The provisions governing the circumstances in which back-up and related offences may be dealt with by the Supreme and District Courts are now contained in Pt 2 Div 4 of the Act.

6    The appellant and his co-accused were arrested on 28 July 1998 in a room at the Crystal Motel, Broken Hill. A quantity of methylamphetamine was located by police during a search of the room. The police also searched a Ford Falcon sedan which was parked outside the motel room. A quantity of .22 calibre ammunition and a .22 calibre rifle was located during the search of the vehicle. The vehicle was registered in the appellant’s name.

7    The appellant was charged with a number of offences (in addition to the charge of supply of a commercial quantity of methylamphetamine) as follows:

(1) possess firearm without licence contrary to s 7(1) of the Firearms Act 1996;
(2) fail to take precaution to ensure safekeeping of firearm contrary to s 39(1) of the Firearms Act 1996;
(3) possess ammunition without licence contrary to s 65(3) of the Firearms Act 1996;
(4) fail to pay for accommodation supplied at inn contrary to s 9 of the Innkeepers Act 1968.

8 Offence (1) above may be dealt with summarily or on indictment. It is an offence listed in Table 2 of Pt 9A of the Act and, as such, is to be dealt with summarily unless the prosecuting authority elects otherwise. If dealt with summarily it carries a maximum penalty of two years imprisonment and/or a fine of 50 penalty units. The matters referred to in (2), (3) and (4) are summary offences within the meaning of the Act. As at 8 March 1999 all four charges were pending in the Local Court at Broken Hill. No issue has been taken but that each constituted a “related offence” within the meaning of s 34(1) (now s 35(1)) of the Act.

9    The transcript of the sentence proceedings suggests that there was some confusion in the minds of the legal representatives of both the Crown and the appellant as to the mechanism by which these outstanding charges might be dealt with by the sentencing judge in the District Court. Thus, at the outset of proceedings on 9 March the Crown Prosecutor is recorded as saying:

“My friend has just told me something. I don’t think he has any objection to me relaying what it was. He has indicated that his client may wish to ask your Honour to take into account certain summary matters. That is to say he proposes to plead guilty to a number of offences with which he is charged” (T2).

10 The Crown Prosecutor’s reference to asking the sentencing judge to take summary matters into account might have been thought to be a reference to the procedure provided under s 21 of the Act (now s 161) which permits the court, if it thinks fit, to take into account all or any offences set out in a document filed in the court. The document is to be in the form prescribed. The Criminal Procedure Regulation 1995 makes provision for the form of the document. It is therein described as a Form 1. Prior to the enactment of the Criminal Procedure Act provision was made in s 447B of the Crimes Act 1900 (now repealed) for a person found guilty of an offence charged on indictment (not punishable by penal servitude for life) to ask the court to take into account any or all offences specified in a list set out in a document filed in court. That document was to be in or to the effect of the form contained in the Ninth Schedule to the Crimes Act 1900. This explains the continuing tendency for practitioners to refer to the procedure under s 21 as “dealing with matters on a schedule”. The procedure under s 21 permits the court to take the offences set out in the document into account in passing sentence for the offence prosecuted on indictment for which the prisoner has been found guilty. The sentence imposed in respect of the indictable offence may be greater than would have been appropriate had it stood alone. However, it may not exceed the maximum sentence available in respect of the indictable offence (s 21(3)) (now s 161(3)). No conviction is recorded in respect of an offence specified in the Form 1 document and taken into account pursuant to s 21 of the Act.

11 The sentencing judge sought to clarify upon what basis he was being invited to deal with the four outstanding matters. He asked if the Crown was seeking to proceed by way of a schedule. The Crown Prosecutor submitted that there were two options available and he then referred the court to s 34 (now s 35) of the Act. He indicated that it was the Crown’s preference for the matters to be dealt with in accordance with the provisions of Pt 10 of the Act. The appellant’s counsel asked for the matters to be put on a schedule. The Crown Prosecutor expressed his concern as to any disposition of the matters in accordance with s 21 of the Act in this way:

“I think I would be opposed to the form 1 document because the record would, at a later time, be meaningless, four further counts taken into account behind a drugs matter might suggest that they were in some way supply or possession of a drug. I think I would probably be in a position to uplift the informations, that is to say the charge sheets which would be pending before the Local Court here at Broken Hill, and place them before your Honour” (T3).

12 The submission that the appellant’s record would be meaningless should the s 21 procedure be adopted seems to me to be somewhat misconceived. Had the four offences been taken into account pursuant to s 21 of the Act the appellant’s record would reflect that fact. There could be no warrant for any presumption that the charges listed on the Form 1 document were matters related to the possession or supply of prohibited drugs. The nature of the matters taken into account pursuant to s 21 of the Act is a matter of record. Section 23(7) (now s 163(7)) allows proof that an offence was taken into account under s 21 in the same manner as the decision in respect of which it was taken into account.

13 In the event, the transcript of the proceedings shows that the appellant’s counsel thereafter consented to the matters being dealt with in accordance with the procedure contained in Pt 10 of the Act. Part 10 was inserted into the Act by the Criminal Procedure Legislation (Amendment) Act 1990. Provision was made under that Part for both “back-up offences” and “related offences” to be dealt with in the Supreme or District Court in certain circumstances. Back-up and related offences are summary offences or indictable offences which are capable of being dealt with summarily by a Local Court in accordance with Pt 9A of the Act. Back-up offences are offences which are to be prosecuted upon the same facts as the indictable offence and all the elements of which are common to the indictable offence (s 34). Related offences are offences which arise from substantially the same circumstances as those from which the indictable offence arose but do not include back-up offences (s 34).

14 Under s 34A (now s 36) provision is made on committal for trial of a person charged with an indictable offence for the prosecuting authority to inform that court of whether the accused has been charged with any back-up or related offence and, in the event that he or she has been so charged, to produce to the court a certificate specifying each charge. It is to be noted that a reading of the transcript of the proceedings does not suggest that a s 34A certificate was before the sentencing court. Rather, it appears that during the course of proceedings on 9 March 1999 the Crown Prosecutor (or some person acting at his direction) uplifted the original charge sheets in respect of the four offences from the Registry of the Local Court and that these were then tendered (as Exhibits 13A-D) in the sentence proceedings before the District Court.

15    At the conclusion of the proceedings on 9 March 1999 the sentencing judge purported to record convictions in respect of each of the four charges and to impose sentences as follows:

Offence (1) - a fixed term of six months imprisonment to commence on 28/10/2000 and to expire on 27/4/2001;
Offence (2) - a fixed term of three months imprisonment to commence on 28/4/2001 and to expire on 27/7/2001;
Offence (3) - fined $500 and allowed 28 days to pay;
Offence (4) - fined $55 and allowed 28 days to pay.

16    The fixed term sentences imposed were, as to offence (1), cumulative upon the minimum term of two years and three months imprisonment imposed with respect to the supply drug conviction and, as to offence (2), cumulative upon the sentence imposed in respect of offence (1).

17 The appellant submitted that the accumulation breached the limitations imposed upon the sentencer by s 444(4)(a) of the Crimes Act 1900. Section 36(3) (now s 38(3)) provides that in sentencing a person in respect of a back-up or related offence the court is subject to the same restrictions as a Local Court constituted by a magistrate. The Crown conceded that the sentence imposed in respect of offence (2) contravened the provisions of s 444(4)(a) of the Crimes Act 1900. In the light of the view I took as to the challenge to the appellant’s convictions it was not necessary to deal further with this aspect.

18 Section 35 of the Act (now s 37), relevantly, provides:

“(1) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court:
(b) may deal with any … related offence with which the accused person has been charged in accordance with this Part.”

19 In the instant case the appellant was committed for trial on the charge of supply of not less than the commercial quantity of a prohibited drug. Upon his arraignment he entered a plea of guilty. Mr Craigie submitted that the proceedings thereafter were not proceedings “at the conclusion of the trial of an accused person for an indictable offence” within the meaning of s 35. The Crown did not seek to contend the contrary. In written submissions the Crown put it this way:

“The Crown concedes that in the absence of concluded ‘trial’ proceedings his Honour was without jurisdiction to dispose of the summary offences pursuant to Part 10 of the Act.
It is apparent from the provisions of Part 10 of the Act that that Part applies only to the disposition in the District Court of outstanding summary matters (being either ‘back up offences’ or ‘related offences’) following the conclusion of contested ‘trial’ proceedings. Such a construction is made plain by the terms of s 36 of the Act and also by the Attorney’s Second Reading Speech introducing Part 10 of the Act …”.

20 Section 36 (now s 38) provides that the court is to deal with the related offence without a jury “on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section” (it is to be noted that both the prosecutor and the accused may, by leave, adduce additional evidence in relation to the related offence).

21 Generally, it was the Crown’s submission that the terms of s 36 make plain that the purpose of the Pt 10 procedure was to admit of the efficient disposition of back-up and related offences where the facts necessary for determination have been canvassed at trial.

22 The Act does not define “trial” either for the purposes of Pt 10 or otherwise. In written submissions the Crown drew attention to a number of provisions which it was said evidenced a distinction maintained throughout the Act between “trial proceedings” and “sentence proceedings”; see s 7 (now s 40) and s 31 (now s 15).

23 At common law there seems to have been some doubt as to the point of commencement of a criminal (jury) trial. The authorities in this regard were reviewed by the Canadian Supreme Court in Basarabas v The Queen (1982) 144 DLR (3d) 115. The court there concluded that the weight of authority supported the view that a trial commences when the accused is placed in the charge of the jury (at 124). As the court noted, the time of commencement of a trial will vary according to the language of any relevant statute governing trial proceedings. In New South Wales the Act makes provision for trial by judge alone. That procedure was introduced into the Act at the same time as Part 10. In trials conducted before a judge alone plainly enough no question of the accused being placed in the charge of a jury arises. Further, s 19 (now s 56) confers jurisdiction on the court with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned but before the jury is empanelled. Sub-section (3) provides that the proceedings (prior to the empanelment of the jury) are part of the trial of the accused. These provisions are inconsistent with a view that in New South Wales a criminal trial begins when the accused is placed in the charge of the jury.

24 I note that the contention that at common law a criminal trial begins as soon as the accused is called upon to plead was rejected by the court in Regina v Faderman (1850) 1 Den C.C. 565, 169 ER 375. In the course of argument in that case Baron Parke observed at 567 (ER 376) that “[p]roperly, there is no trial till issue is joined”. An accused by his or her plea of not guilty joined issue with the Crown. An accused who entered a plea of guilty upon arraignment thereby confessed his or her guilt and was liable to be sentenced upon the same; see Kenny’s Outlines of Criminal Law (edited by JWC Turner, 19th ed, Cambridge University Press, 1966, at 602 and following).

25 Section 395 of the Crimes Act 1900 applied as at the date of the appellant’s sentencing. The Crimes Act provision has since been repealed and a provision in identical terms has been inserted into the Act (s 88). The section provides that if a person arraigned upon indictment pleads “not guilty” thereto he or she is deemed to have put himself or herself “on the country for trial” and the court shall order a jury for his or her trial accordingly. This is consistent with the view expressed in Faderman that the trial does not commence as soon as the accused is called upon to plead but only upon him or her entering a plea of not guilty (or some time thereafter).

26 In this case the appellant pleaded guilty upon his arraignment. It is not necessary to explore what might be embraced by the submission that the Part 10 procedure is only available at the conclusion of ‘contested trial proceedings’. I consider that the subject proceedings did not take place at the conclusion of a trial within the meaning of s 35 and, accordingly, that the court did not have jurisdiction to deal with the four offences pursuant to Pt 10 of the Act. In a case where an accused pleads guilty upon arraignment the provisions of Pt 10 (now Pt 2 Div 4) do not apply and the court does not have the jurisdiction to deal with back-up and related offences other than by means of taking such offences into account on a Form 1 pursuant to s 21(now s 161) of the Act.

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