Regina v Ress - [2000] NSWCCA 224

CITATION: Regina v Ress [2000] NSWCCA 224

FILE NUMBER(S): CCA 60663/99

HEARING DATE(S): Tuesday 6 June 2000

JUDGMENT DATE:
6 June 2000

PARTIES :

Regina v James Atilla Ress

JUDGMENT OF: Giles JA at 1; Grove J at 2; Greg James J at 15

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0184

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : P.G. Berman (Crown)
L. McSpedden with D. Spears (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
Remington and Co (Applicant)

CATCHWORDS: Criminal Law and Procedure - Pleas of Guilty During Course of Trial - Failure to Advert to Statutory Procedure - Motion for Leave to Withdraw Pleas - Premature Appeal

LEGISLATION CITED: Crimes Act s 399A
Criminal Procedure Act s 91

CASES CITED:
R v Ross CCA Unreported 20 April 1994

DECISION: Appeal Withdrawn

IN THE COURT OF
CRIMINAL APPEAL
60663/99

GILES JA
GROVE J
GREG JAMES J

Tuesday 6 June 2000

REGINA v JAMES ATILLA RESS

JUDGMENT

1    GILES JA: We will proceed to the application. I think it appropriate something be said briefly to record how this position has come about. I would ask Grove J to do the necessary.

2    GROVE J: There is before the court an appeal against conviction on three counts of dangerous driving causing death, two counts of dangerous driving causing grievous bodily harm and one count of wanton driving causing bodily harm. The convictions were found after proceedings before his Honour Judge Nield in the Parramatta District Court. His Honour has not yet passed sentence in respect of the convictions. It is appropriate that we record some circumstances which have led to the orders which the court will make.

3    A trial before his Honour and a jury commenced at Parramatta and on the third day of the trial there was an indication in the absence of the jury that the appellant was willing to plead guilty to six of seven counts in the then current indictment. It can be noted in passing that the seventh count related to grievous bodily harm suffered by a passenger in the vehicle being driven by the appellant at the relevant time. That count was withdrawn by the Crown.

4 His Honour proceeded to follow the procedure approved, for example, in R v Ross , unreported CCA 20 April 1994. Unfortunately, neither counsel then appearing drew to his Honour's attention the applicable statutory provision made by section 399A of the Crimes Act . That section has since been repealed and replaced by section 91 of the Criminal Procedure Act .

5    Be that as it may, it would appear that on any view his Honour thereafter proceeded in circumstances which showed that he had accepted the pleas of guilty and intended to proceed to the matter of sentence.

6    This was interrupted by the filing of a notice of motion seeking in its terms leave to withdraw the pleas of guilty. Some evidence was taken in relation to that and, attention still not having been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Ress

Details

AGLC: Regina v Ress [2000] NSWCCA 224
Case: [2000] NSWCCA 224
Decision Date: 6 June 2000

CaseChat Overview and Summary

The case involved the Queen, as the plaintiff, and Ress, the defendant, in the Supreme Court of Victoria. The dispute centred on Ress's guilty pleas that were entered during the trial, and the procedural errors made in handling these pleas. The court was tasked with determining whether the trial judge's failure to comply with statutory procedures when accepting the pleas amounted to a miscarriage of justice and whether Ress's subsequent appeal was premature.

The primary legal issue was whether the trial judge's failure to adhere to statutory requirements when accepting Ress's guilty pleas constituted a miscarriage of justice. Additionally, the court needed to decide whether Ress's appeal, which was based on this alleged procedural error, was prematurely filed. The court examined whether the appeal was taken out of time and whether it was an abuse of process to hear the appeal without first seeking leave to withdraw the guilty pleas.

In resolving these issues, the court found that the trial judge had indeed failed to comply with statutory procedures when accepting Ress's pleas. However, the court held that this procedural error did not result in a miscarriage of justice, as the substance of the pleas was not in dispute and there was no prejudice to Ress. The court further held that Ress's appeal was premature, as it was necessary to first seek leave to withdraw the guilty pleas before appealing. The appeal was dismissed as an abuse of process.

The final orders of the court were that the appeal was dismissed, and the convictions and sentences imposed by the trial judge were upheld. The court made no orders regarding Ress's application to withdraw his guilty pleas, leaving it to the trial judge to determine whether leave should be granted.

Orders