Robert John Feeney v The Queen
[2014] ACTCA 1
•10 February 2014
ROBERT JOHN FEENEY v THE QUEEN
[2014] ACTCA 1 (10 February 2014)
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against refusal of stay and granting of leave to Crown to withdraw acceptance of guilty plea – appeal from discretionary decision – no error shown – appeal dismissed.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – Pleas – appeal against refusal of stay and granting of leave to Crown to withdraw acceptance of guilty plea – no requirement that plea bargain was entered into by Crown by mistake or error before leave can be given to Crown to withdraw from plea bargain – prejudice claimed by accused – accused given leave to withdraw his plea of guilty – no unfair prejudice shown – appeal dismissed.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – operation of Magistrates Court Act 1930 (ACT), s 90A – when accused should personally enter plea – effect if plea of guilty only advised to court by counsel – operation of Magistrates Court Act 1930 (ACT), s 143 – effect of dismissal of charge when no evidence offered by prosecutor.
Magistrates Court Act 1930 (ACT) ss 90A, 143
Crimes Act 1900 (NSW) s 394A
Criminal Procedure Act 1986 (NSW) s 153
House v the King (1936) 55 CLR 499
Jago v District Court (New South Wales) (1989) 168 CLR 23
Maxwell v The Queen (1996) 184 CLR 501
R v Beeby (1999) 104 A Crim R 142
R vBWM (1997) 91 A Crim R 260
R v Filimoehala (2003) 138 A Crim R 299
The Queen v Robert John Feeney [2012] ACTSC 153
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 49 of 2012
No. SCC 308 of 2009
Judge: Penfold and North JJ, Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 10 February 2014
IN THE SUPREME COURT OF THE )
) No. ACTCA 49 of 2012
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 308 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
ROBERT JOHN FEENEY Appellant
AND:
THE QUEEN Respondent
ORDER
Judge: Penfold and North JJ, Nield AJ
Date: 10 February 2014
Place: Canberra
THE COURT ORDERS THAT:
Order 2 made by Burns J is varied so that instead of “his plea of guilty” it refers to “any plea of guilty previously entered”.
Order 3 made by Burns J is varied so that instead of “the plea of guilty to receiving stolen goods” it refers to “any plea of guilty previously entered to receiving stolen property”.
Except as provided by Orders 1 and 2 above, the appeal is dismissed and the orders made by Burns J are confirmed.
IN THE SUPREME COURT OF THE )
) No. ACTCA 49 of 2012
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 308 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
ROBERT JOHN FEENEY Appellant
AND:
THE QUEEN Respondent
REASONS FOR JUDGMENT
THE COURT:
Introduction
Robert Feeney has appealed, by leave given on 21 November 2012, against an order of the Supreme Court refusing his application for a stay of proceedings brought against him by ex officio indictment in the Supreme Court alleging an offence of aggravated robbery.
Background
The background to this appeal is described in the judgment appealed from (The Queen v Robert John Feeney [2012] ACTSC 153) as follows:
1.On 13 August 2009 the applicant, Robert John Feeney, appeared before a magistrate in the ACT Magistrates Court charged with an offence of aggravated robbery. On that date the Director of Public Prosecutions (the DPP) proferred a fresh charge of receiving stolen property, to which the applicant entered a plea of guilty. The DPP then offered no evidence on the aggravated robbery charge, which the learned magistrate then dismissed. The applicant did not consent to the jurisdiction of the ACT Magistrates Court, and he was committed for sentence to this Court.
2.On or about 29 June 2010 the DPP filed an ex-officio indictment against the applicant in this Court charging him with an offence of aggravated robbery. The offence charged in this indictment is in substantially the same form as the charge upon which the DPP offered no evidence in the ACT Magistrates Court in August 2009. It is common ground that each refers to the same incident.
The present application
3.The applicant seeks an order that the proceedings on the indictment of 29 June 2010 be permanently stayed as an abuse of process. The DPP seeks a grant of leave to proceed on the ex-officio indictment and for leave to be granted for the DPP to withdraw its acceptance of a plea of guilty to the charge of receiving stolen property “in full satisfaction of the charge of aggravated robbery”.
4.The basis for the applicant’s application is an assertion that he reached an agreement with the DPP in 2009 that he would plead guilty to the charge of receiving stolen property if the DPP withdrew the charge of aggravated robbery. He submits that to allow the DPP to effectively reinstate the charge of aggravated robbery after he has entered a plea of guilty to the receiving charge (albeit that he has not been sentenced with respect to that charge) constitutes an abuse of this Court’s processes.
5.The DPP submits that the evidence available to it strongly supports, and has always supported, the applicant being charged with aggravated robbery.
It seemed to be conceded during the appeal hearing, although only on the basis of advice from the bar table rather than evidence or court documents, that Mr Feeney had never formally entered a plea of guilty to the charge of receiving stolen property. Rather, his solicitor had in the Magistrates Court indicated that he would be pleading guilty, and he was committed to the Supreme Court to be dealt with in accordance with s 90A(8) to (13) of the Magistrates Court Act 1930 (ACT).
The orders made by Burns J were as follows:
1.The application for a stay in proceedings is refused.
2.The accused is granted leave to withdraw his plea of guilty to the charge of receiving stolen property.
3.The Crown is granted leave to withdraw its acceptance of the plea of guilty to receiving stolen goods in satisfaction of all offences arising out of the aggravated robbery which occurred on 9 August 2008.
Appeal grounds
The original notice of appeal set out 15 grounds of appeal. Counsel for Mr Feeney advised that only two were to be relied on at the hearing, as follows:
(i)The Learned trial judge erred in law in finding that the Director of Public Prosecutions should be permitted to withdraw from a plea bargain agreement properly entered into in circumstances where there was no evidence that it was entered into by mistake or error.
(ii)The Learned trial judge erred in law in finding that any prejudice that the appellant may have suffered as a result of entering into the plea bargain agreement with the Director of Public Prosecutions could be remedied by granting him leave to withdraw his plea to the charge of receiving stolen property.
The nature of the appeal
It is undisputed that the decision to stay a prosecution as an abuse of process is a discretionary decision (Jago v District Court (New South Wales) (1989) 168 CLR 23). As such, an appeal from a refusal to make a stay order falls under the requirements set out in House v The King (1936) 55 CLR 499 (House). In the circumstances, it may be useful to spell out those requirements.
First, the question is not whether the Court of Appeal would have exercised the discretion differently, but whether Burns J has made a relevant kind of error in his exercise of the discretion. Those errors were described in House at 505:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Has error been shown?
Factual error
First, there appears to have been a misunderstanding in the proceeding before Burns J about whether Mr Feeney had ever effectively entered a plea of guilty (see [6] above). To that extent, there was a mistake in the submission summarised by Burns J at [4] as:
that to allow the DPP to effectively reinstate the charge of aggravated robbery after [Mr Feeney] has entered a plea of guilty to the receiving charge (albeit that he has not been sentenced with respect to that charge) constitutes an abuse of this Court’s processes.
Thus, it may be that his Honour considered the matter on a mistaken view of that particular factual question. However, any such mistaken understanding on the part of Burns J would have operated in Mr Feeney’s favour rather than the reverse.
First appeal ground (ground (ii))
In written submissions made in support of the claim that it was an error on his Honour’s part to permit the Crown to withdraw from the plea bargain “where there was no evidence that it was entered into by mistake or error”, counsel did not refer to any legal basis for the proposition that evidence of mistake or error in entering into the plea bargain was necessary before the Crown could be given leave to withdraw from such a bargain. Rather, counsel simply argued that the Crown should not have been permitted to withdraw from the plea bargain without providing an explanation for wishing to do so.
Burns J said at [22] that “There is no suggestion that the Crown seeks to bring the charge of aggravated robbery for an improper purpose.” At the appeal hearing, counsel for Mr Feeney confirmed that no improper purpose was alleged, while reiterating his submission that it would nevertheless be an abuse of process for the Crown to proceed against Mr Feeney on the charge of aggravated robbery.
In Maxwell v The Queen (1996) 184 CLR 501 (Maxwell), the High Court considered the question whether, where a prosecutor has accepted a plea of guilty to a lesser offence than the one originally charged, the prosecutor may, before conviction, withdraw acceptance of that plea. The case arose in New South Wales, where the Crown’s capacity to accept a plea to a lesser offence than that charged was dealt with by s 394A of the Crimes Act 1900 (NSW) (now s 153 of the Criminal Procedure Act 1986 (NSW)). That section (to which there is no equivalent in ACT legislation) did not deal with the scope for withdrawing acceptance of a plea originally accepted under the section, but in Maxwell the High Court (Dawson, Gaudron, McHugh and Gummow JJ) held that the acceptance of such a plea could be withdrawn, with the leave of the court and before conviction. Dawson and McHugh JJ said at 515:
As we have said, the prosecution did not seek before McInerney J to withdraw its election to accept the accused’s plea of guilty, but as the matter must go back to the trial judge, it is desirable that we express our agreement with the view taken in the Court of Criminal Appeal that the prosecution is entitled, before sentence, to withdraw its acceptance of a plea of guilty made pursuant to s 394A. That section does not deny such a course and it is inappropriate to regard the prosecution as bound by its election if the interests of justice require its withdrawal. An accused may with leave withdraw a plea of guilty at any time before sentence or other disposal of the case and there is no reason why the prosecution should be placed in a lesser position with regard to its acceptance of a plea. That means, however, that before the prosecution may withdraw its acceptance it must obtain the leave of the court. Obviously that is in the interests of justice because an accused may, in reliance upon the prosecution’s acceptance of his plea, have taken a course which would prejudice him — by making admissions, for example — should the acceptance be withdrawn. In those circumstances, leave should be refused. (citations omitted)
Toohey J at 526 said:
As to the first question — can the prosecution withdraw the acceptance of a plea after a plea has been accepted? — I respectfully agree with Gleeson CJ that “principles applicable to the law of contract are not an appropriate context in which to examine the position of the parties”.
Nevertheless, I would not answer that question simply in the affirmative because such an answer suggests some arbitrary right in the Crown so to do. An accused may only withdraw a plea of guilty with the leave of the court. Equally, in my view, having accepted a plea of guilty to a lesser offence the Crown may not withdraw that acceptance without the leave of the court. In effect the focus then shifts to the judge who may permit withdrawal in circumstances where the interests of justice warrant a rejection of the plea.
Gaudron and Gummow JJ said at 536:
There is nothing in s 394A of the Act to suggest that acceptance of a plea cannot be withdrawn. And subject to two minor qualifications, there is no legal principle which requires that that be so. The first qualification is that there may be circumstances in which it is no longer possible for there to be a fair trial of the charge in the indictment as, for example, if witnesses are no longer available. That consideration requires that acceptance should be withdrawn only by leave of the court. The second qualification involves other and broader considerations of fairness. For example, there may have been admissions which would not have been made had it been thought that the matter might proceed to trial. Those broader considerations require that it be open to a court to refuse leave to a prosecutor to withdraw his or her acceptance of a plea under s 394A of the Act, unless there are good and substantial reasons for allowing that course.
Gaudron and Gummow JJ identified, as reasons why such withdrawal should require the leave of the court:
(a)that circumstances may have changed since the plea of guilty was accepted such that a fair trial on the original charge is no longer possible, for instance if relevant witnesses are no longer available; and
(b)that there may be some other unfairness to the accused in allowing the acceptance of the plea to be withdrawn, for instance if the accused has made admissions in connection with the plea that could be used against him in a trial.
In written submissions, counsel for Mr Feeney argued that Maxwell “concerned the binding effect of section 394A of the New South Wales Crimes Act 1900”, and accordingly “does not support [Burns J’s] conclusion”. While it is true that the original acceptance of the plea of guilty to manslaughter in Maxwell was authorised by s 394A of the NSW Act, that section did not deal with the Crown’s capacity to withdraw its acceptance of such a plea, and one of the two questions considered by the Court of Criminal Appeal and then the High Court was:
Can the prosecution withdraw the acceptance of a plea after a plea has been accepted?
None of the members of the High Court suggested that the conclusions about the prosecution’s capacity to withdraw acceptance were inferred from the contents of s 394A (except to the extent that their Honours noted that s 394A did not deal with the question); rather, they considered the question as a question of principle rather than a question of statutory interpretation. The proposition that the High Court’s approach in Maxwell depended on the content of s 394A was considered and rejected by the NSW Court of Criminal Appeal in R v Beeby (1999) 104 A Crim R 142 (Beeby) at [12], Dunford J with whom Powell JA and Dowd J relevantly agreed).
In R vBWM (1997) 91 A Crim R 260 (BWM) (which concerned the same murder charge that had been the subject of Maxwell), the New South Wales Court of Appeal (Gleeson CJ, Hunt CJ at CL, Hidden J) considered the High Court’s judgment in Maxwell, and concluded that, having regard to that judgment, leave could be granted to the Crown to withdraw an acceptance of a plea of guilty “where it is in the interests of justice that the Crown be permitted to do so” (at 263). The Court rejected the proposition that because the High Court in Maxwell had drawn an analogy between the granting of leave to an accused person to withdraw a plea of guilty and the granting of leave to the Crown to withdraw acceptance of such a plea, the granting of leave to the Crown should also be restricted by the requirement imposed on the accused to establish that a miscarriage of justice has occurred.
That is, leave may be granted to the Crown to withdraw acceptance of a plea of guilty if it is in the interests of justice to grant such leave. Unfairness to the accused would in general be a basis for a court to find that granting leave would not be in the interests of justice.
In BWM, it emerged that the initial acceptance of the plea of guilty had resulted from an error by the Crown prosecutor about the expertise of the medical profession in relation to the defence of diminished responsibility. Hunt CJ at CL said at 267:
The interests of justice, however, are not served by punishing the Crown for a misconception from which its prosecutor suffered in common with many others. This is not a disciplinary body which deals with the competence of Crown prosecutors. The arguments of the applicant before this Court are more than faintly redolent of his unsuccessful argument before this Court on the previous occasion, that the Crown had made itself a bargain from which it could not withdraw. It is necessarily implicit in the two joint judgments in the High Court upholding the Crown’s right (after obtaining leave) to withdraw its acceptance of the plea that that argument was also rejected in that Court; it is expressly rejected in the remaining judgment, in which Toohey J agreed with the other members of the Court in upholding that right.
It would not be acceptable to the community on behalf of which the Crown prosecutes that a person charged with murder should be sentenced only for the substantially less serious offence of manslaughter where there remains outstanding the disputed but unresolved issues of fact which bear directly upon his guilt or otherwise of the more serious crime. In those circumstances, I would refuse leave to the applicant to appeal against the decision of Adams AJ.
See also Beeby at [15].
In written submissions counsel also mentioned a number of other decisions (some of them mentioned by Burns J in his decision) in which a court stayed or refused to stay a prosecution that the Crown had sought to pursue after some kind of agreement or understanding that it would not do so. Counsel did not submit, however, that any of these decisions purported to identify further restrictions on the prosecution’s capacity to withdraw from a plea bargain beyond those identified in Maxwell. For that reason, it is unnecessary to canvass those decisions in this judgement.
In argument, counsel enlarged on this appeal ground by submitting that Burns J should not have granted leave to the Crown to withdraw its acceptance of Mr Feeney’s plea without hearing an explanation for the change of mind. Counsel did not provide any authority for this proposition.
There is no suggestion in Maxwell or BWM (or in Beeby, where the trial judge referred to the plea having been entered on a “mistaken factual basis”) that establishing that a plea was initially accepted by mistake or in error is a necessary part of the Crown application for leave to withdraw such acceptance. At the appeal hearing, however, counsel for Mr Feeney handed up the decision of the NSW Court of Criminal Appeal in R v Filimoehala (2003) 138 A Crim R 299 (Filimoehala), and drew attention to comments of Dowd J (with which Mason P and Smart AJ agreed). In that case the Crown, despite its initial agreement to a plea of guilty to a charge of maliciously inflicting grievous bodily harm, had formed the view that the accused should in fact be tried for maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. Dowd J’s comments were to the effect that the evidence relied on by the Crown in initially accepting a plea to a lesser charge, and in deciding to seek leave to withdraw that plea, should have been before the judge who initially heard the application for leave to withdraw the acceptance of the plea. His Honour said at [36]-[38]:
36The evidence now being before this Court the grounds of appeal relating to the admissibility of the statement of facts is not now a matter on which this court has to decide. It is, however, clearly desirable on an application in the circumstances such as this application that the Crown place before a District Court evidence setting out the reasons for the acceptance of a plea and the material such as the statements upon which the Crown had relied.
37Cumbersome though this procedure may be, there is clearly an interest in the community in the acceptance of pleas, after negotiations have taken place for the acceptance of a plea, unless the interests of justice otherwise dictate.
38Although the statement of facts which was admitted did not purport to be proof of the matters contained within it and it purported to only outline the case for the Crown the seriousness of an issue such as the withdrawal of acceptance of a plea warrants proper evidence being placed before a court when a motion to allow withdrawal of that acceptance is to be heard. The evidence placed before Black DCJ was clearly insufficient.
It may be relevant that in Filimoehala the Crown’s intention was to upgrade the charge to one which simply added an extra element to the elements of the original alternative charge, as well as a significantly higher penalty. In the current case, the charge to which a plea was originally accepted, although arising out of the same incident, involved quite different conduct and quite a different role for Mr Feeney in the overall incident. In a case of the latter kind, there may be less need for the court to consider the detail of the evidence available to the Crown in determining whether the interests of justice require the Crown’s revised approach.
No doubt it is the case that in seeking leave to withdraw an acceptance of a plea, the Crown will often be well served by providing an explanation for its actions. Any such explanation would be taken into account by a court in considering whether it is in the interests of justice to permit the Crown to withdraw its acceptance or whether the accused would be unfairly prejudiced if the Crown is given the necessary leave. In particular, this may be vital if there is any accusation of impropriety on the part of the Crown.
However, Filimoehala does not seem to us to be authority for counsel’s proposition that the provision of such an explanation is a pre-requisite to the granting of leave to the Crown to withdraw its acceptance of a plea, and no supporting argument of principle was made. In our view, the considerations already identified in Maxwell and BWM as relevant to whether leave to withdraw acceptance should be granted are more than adequate to require or permit consideration of the Crown’s reasons for its actions should those be relevant to the questions of the interests of justice or unfair prejudice to the accused. Indeed, in argument, counsel for Mr Feeney effectively conceded that the only significance of calling for an explanation for the Crown’s position was to enable submissions to be made about whether the interests of justice required the Crown to be given leave.
Unless there is reason to suspect impropriety on the part of the Crown, the provision of an explanation for its actions may have no particular significance, in that an explanation that reflects well on the Crown will not justify a grant of leave if the interests of justice do not otherwise require it, and an explanation that is embarrassing to the Crown (without indicating impropriety) will not justify a refusal of leave if the interests of justice do require leave to be given.
In fact, in the course of argument on the hearing of the appeal it was indicated that prosecutors had come to the conclusion that not only was there evidence of Mr Feeney’s commission of the aggravated robbery but there was no evidence to support the charge of receiving to which he had indicated a willingness to plead. If on consideration of the evidence that conclusion had been accepted by a court, then the court might have had to refuse to accept the plea irrespective of the views of the Crown. Such an outcome would not in our view have lent any support to Mr Feeney’s claim that the Crown should not be able to proceed with the more serious charge against him.
The appellant has not established that, in the absence of evidence that the plea bargain was entered into by the Crown by mistake or error, it was an error of law for Burns J to permit the Crown to withdraw from the plea bargain. This appeal ground therefore fails.
Second appeal ground (ground (iii))
This appeal ground refers to the prejudice that Mr Feeney “may have suffered as a result of entering into the plea bargain agreement”; this was the particular prejudice sought to be addressed by Burns J in giving leave to Mr Feeney to withdraw his guilty plea, but in considering the Crown’s application the relevant prejudice would seem to be that resulting to Mr Feeney from his Honour’s grant of leave to the Crown to withdraw from the plea bargain.
In relation to this appeal ground, counsel sought to establish that Mr Feeney would be prejudiced by the Crown’s withdrawal of its acceptance of his plea of guilty to the receiving charge, and that such prejudice was not remedied by granting Mr Feeney leave to withdraw that plea.
Counsel for Mr Feeney submitted that if Burns J’s orders stood, Mr Feeney would be prejudiced in that he had lost the benefit of the plea agreement and would have to defend the charge of aggravated robbery. This was a correct statement of Mr Feeney’s position, that he would have lost a benefit that he was hoping to retain, but does not seem to describe the kind of unfairness to the accused with which the High Court was concerned in Maxwell.
On the basis that no plea of guilty had ever been entered by Mr Feeney, there had been no partial performance of the agreement such as might have been relied on to found an argument that the Crown should not be permitted to withdraw from the agreement after Mr Feeney had performed his side of it. However, we can see no basis in this case, even if the plea had in fact been entered, for finding that Mr Feeney would suffer unfair prejudice if the Crown were given leave to withdraw its acceptance of the plea.
Counsel for the Crown, in written submissions, said:
the only possible prejudice [to Mr Feeney] was remedied by his Honour’s order in permitting the accused to withdraw his plea of guilty to the charge of receiving stolen property. Clearly the fact of the entry of such plea by itself is not a matter on which the Crown could possibly rely to his prejudice in any proceedings on the ex officio indictment for aggravated robbery.
This statement refers only to the Crown relying on Mr Feeney’s plea of guilty “by itself”, and stops short of providing an assurance that nothing that has happened between Mr Feeney and the Crown, since the Crown indicated its intention to accept the plea to receiving and not to proceed with the charge of aggravated robbery, could unfairly prejudice Mr Feeney in his trial for aggravated robbery. Counsel for Mr Feeney, while expressing his gratitude for the Crown’s assurance, did not seek to identify any other fact or circumstance not covered by that assurance that might unfairly prejudice Mr Feeney. In any case, if such a fact or circumstance did come to light before or during any trial of Mr Feeney on the aggravated robbery charge, it would presumably provide the basis for an application on behalf of Mr Feeney for orders to address that prejudice (for instance by excluding certain evidence) or even a further application for a stay of the proceeding.
The only other prejudice apparently risked by Mr Feeney from the granting of leave to the Crown to withdraw its acceptance of his plea of guilty to receiving was whatever consequences might have flowed from the entry of that plea, presumably being that at some stage after the aggravated robbery matter was disposed of, the Crown could have sought to have Mr Feeney sentenced on the basis of that plea. Since it seems that Mr Feeney had not in fact entered a plea, this does not seem to have been a real risk. Even if Mr Feeney had in fact done something of legal effect in the Magistrates Court, any Supreme Court sentencing process would have begun with the question whether he adhered to the plea of guilty entered in the Magistrates Court, at which point he could presumably have indicated that he did not adhere to that plea. Given the uncertainties mentioned at [6] above and at [45] and [47] below, we consider that Burns J’s approach of granting Mr Feeney leave to withdraw his plea of guilty was a sensible way of ensuring that no possible prejudice could flow from whatever Mr Feeney had in fact done in relation to pleading guilty to receiving.
Mr Feeney’s disappointment about the re-emergence of the prospect of being tried for aggravated robbery is not prejudice or unfairness of the kind that needs to be considered by a court hearing an application by the Crown for leave to withdraw its acceptance of a plea of guilty. The only possible prejudice to Mr Feeney that has been identified as a consequence of granting such leave to the Crown was adequately addressed by his Honour’s explicit grant of leave to Mr Feeney to withdraw his plea of guilty to receiving. Burns J did not err in his approach to any prejudice possibly to be suffered by Mr Feeney if the Crown was permitted to withdraw its acceptance of his plea of guilty. This appeal ground therefore fails.
Further submission – policy considerations
Finally, counsel made submissions not obviously referable to either appeal ground mentioned above, to the effect that if either party could withdraw from a plea bargain before it was implemented, there would be no utility in making such agreements, at least while the matter was being dealt with in the Magistrates Court. Counsel said this:
the result is either the bargaining process has some force and effect at the Magistrates Court level or it doesn’t.
This appears to overlook two significant facts. First, most agreements of this kind are in fact implemented, such that there is utility in the bargaining process as part of the operations of the criminal justice system, whether or not it provides any benefit in a particular case such as this one. Secondly, for an individual accused, a plea of guilty entered in the Magistrates Court should attract a higher sentencing discount than a plea that is only entered after the matter has been committed to the Supreme Court (subject of course to considerations relating to the timing of relevant negotiations about a plea bargain).
The policy considerations raised by counsel, to the extent that they have any substance at all, do not suggest that the circumstances in which the Crown will be permitted to withdraw from a plea bargain should be any more restricted than they currently are by authorities such as Maxwell and BWM.
Processes for taking pleas of guilty
We note that, contrary to submissions made during the hearing, s 90A of the Magistrates Court Act in fact appears to be engaged by a person actually pleading guilty in the Magistrates Court, and not by a person indicating, either personally or through his legal representatives, an intention to plead guilty at some later point. Section 90A is relevantly as follows:
90A Plea of guilty at committal hearing
...
(3)A person (the accused person) who is before the court charged with an indictable offence may at any stage of the proceeding plead guilty to the charge.
(4)The court may accept or reject the plea but the rejection of the plea at any stage of the proceeding does not prevent the accused person from pleading guilty under this section at a later stage of the proceeding and the court may accept or reject the plea at that later stage.
(5)If the court rejects the plea, the proceeding before the court must continue as if the plea had not been made.
(6)If—
(a)the court accepts the plea; and
(b)any of the following subparagraphs applies to the offence:
(i) the offence is under a law in force in the ACT punishable either on indictment or summary conviction;
(ii)the offence may be dealt with summarily without the accused person’s consent;
(iii)the offence may be dealt with summarily if the accused person consents and the accused person consents to it being dealt with summarily;
(iv)the offence may be dealt with summarily if the prosecutor requests and the prosecutor requests that it be dealt with summarily; and
(c) it appears to the court that it is proper to deal with the case summarily;
the court may, without hearing further evidence, sentence or otherwise deal with the accused person and finally dispose of the charge and all incidental matters.
(7)If—
(a) the court accepts the plea; and
(b) any of the following subparagraphs applies to the offence:
(i) it does not appear to the court that it is proper to deal with the case summarily;
(ii)the offence is punishable only on indictment;
(iii)the offence may be dealt with summarily if the accused person consents, but the accused person does not consent to it being dealt with summarily;
(iv)the offence may be dealt with summarily if the prosecutor requests, but the prosecutor does not request that it be dealt with summarily;
(v)this subsection applies to the accused person under the Crimes Act, section 374 or section 375;
the Magistrates Court must commit the accused person to the sittings of the Supreme Court that the Supreme Court directs and the Supreme Court must deal with the accused person in accordance with subsections (8) to (13).
...
(9)The Supreme Court may order that the proceeding before the Magistrates Court where the accused person pleaded guilty be continued at a time and place stated in the order.
(10)The Supreme Court must make an order under subsection (9) if—
(a) it appears to the Supreme Court from the information or evidence given to or before it that the facts in relation to which the accused person was charged before the Magistrates Court do not support the charge to which the accused person pleaded guilty; or
(b) the accused person or a lawyer representing the accused person or informant asks that the order be made.
(11)Except if an order is made under subsection (9), the Supreme Court has the same powers of sentencing or otherwise dealing with the accused person and of finally disposing of the charge and of all incidental matters as it would have had if the accused person, on arraignment at any sittings of the court, had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Attorney-General of the Commonwealth.
In particular, s 90A does not provide for the plea to be entered in the Supreme Court; s 90A(3) provides for a plea to be made in the Magistrates Court, and for the consequences of such a plea, and s 90A(11) confers on the Supreme Court the same powers of sentencing:
as it would have had if the accused person, on arraignment at any sittings of the court, had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Attorney-General of the Commonwealth.
If, as appears to be the case from submissions made during the appeal hearing, it would be possible as a matter of current practice for a person to be committed to the Supreme Court on an indication from his or her legal representative of an intention to plead guilty, and for the person then to be sentenced in the Supreme Court on an indication also from his or her legal representative of an intention to adhere to that plea of guilty, the court could finalise the sentencing without the accused person ever having personally articulated a plea of guilty. Whether this would affect the validity of the sentencing process is a matter that need not be pursued at this point.
Significance of dismissal in Magistrates Court
There is another interesting aspect of this case which was not raised in argument on appeal nor, apparently, before Burns J. At [1] of his judgment (quoted at [5] above), his Honour referred to the aggravated robbery charge having been dismissed after no evidence was offered. However, his Honour found at [6], in reliance on material filed in support of the various applications, that:
On 13 August 2009 the DPP presented a fresh charge of receiving stolen property in the Magistrates Court, to which the accused entered a plea of guilty. The DPP then withdrew the charge of aggravated robbery;
The Magistrates Court bench sheet for the aggravated robbery charge (CC2009/2989) sets out, for 13 August 2009, shorthand notes that appear to represent “No evidence to offer, therefore dismissed”. This suggests that Burns J was correct in the description of proceedings set out at [1] of his judgment.
Section 143 of the Magistrates Court Act is as follows:
143 Consequences if information dismissed
(1)The court must make an order of dismissal if the court dismisses an information.
(2)The court must give the defendant a certificate of dismissal signed by the adjudicating magistrate or the registrar if the defendant applies for it.
(3)If a certificate of dismissal is produced to a court—
(a) the court must accept it as proof of the matters stated in it if there is no evidence to the contrary; and
(b) it is a bar to any other information or proceeding in any court (other than an appeal) for the same matter against the same party.
If the information in relation to the charge of aggravated robbery was in fact dismissed by the Magistrate without any evidence being offered by the Crown, as distinct from having been withdrawn from the Magistrate by the Crown, and if Mr Feeney had obtained a certificate of dismissal under s 143(2), it seems that the certificate would have been a bar to any further proceedings against him in respect of the aggravated robbery charge.
Conclusions
Mr Feeney has not established either of the appeal grounds argued, nor any other basis on which the decision of Burns J should be overturned.
However, because of the suggestion that Mr Feeney has not in fact entered any plea of guilty to the charge of receiving stolen property, we hesitate to confirm Orders 2 and 3 in their current form, and will accordingly dismiss the appeal, except to the extent necessary:
(a)to vary Order 2 so that instead of “his plea of guilty” it refers to “any plea of guilty previously entered”; and
(b)to vary Order 3 so that instead of “the plea of guilty to receiving stolen goods” it refers to “any plea of guilty previously entered to receiving stolen property”.
I certify that the preceding fifty (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date:
Counsel for the appellant: Mr R Thomas
Solicitor for the appellant: John O’Keefe
Counsel for the respondent: Mr J White
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 9 August 2013
Date of judgment: 10 February 2014
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