State of Western Australia v Landers
[2000] WASCA 125
•11 MAY 2000
THE STATE OF WESTERN AUSTRALIA -v- LANDERS [2000] WASCA 125
| (2000) 22 WAR 278 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 125 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:124/1999 | 15 MARCH 2000 | |
| Coram: | KENNEDY J WHEELER J MILLER J | 11/05/00 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA KATHERINE ELIZABETH LANDERS |
Catchwords: | Criminal law and procedure Justices Expedited committal of accused pleading guilty to indictable offence Failure of Magistrate to advise defendant in accordance with Justices Act 1902, s 100(1) Requirement of Act mandatory Order for committal quashed |
Legislation: | Criminal Code, s 378, s 391, s 393, s 574 Justices Act 1902, s 98, s 100, s 101 Justices (Forms) Regulations 1982 |
Case References: | Cain v Glass (No 2) (1985) 3 NSWLR 230 Carter v Evans (No 2) (1990) 3 WAR 94 Cooling v Steel [1971] 2 SASR 249 House v R (1936) 55 CLR 499 Jones v Holmwood [1974] WAR 33 Jones v Moffatt, unreported; SCt of WA; Library No 990196; 31 March 1999 Margetson v R [1980] WAR 135 Norbis v Norbis (1986) 65 ALR 12 R v Liberti (1991) 55 A Crim R 120 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Tihanyi v The Queen [1999] WASCA 226 Re Boothman; Ex parte Landers [1999] WASC 169 Craig v State of South Australia (1995) 184 CLR 163 Lim v Bateman [1999] WASCA 305 Maxwell v The Queen (1996) 184 CLR 501 R v Popovic [1964] Qd R 561 R v Wong (1995) 16 WAR 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- LANDERS [2000] WASCA 125 CORAM : KENNEDY J
- WHEELER J
MILLER J
- Appellant
AND
KATHERINE ELIZABETH LANDERS
Respondent
Catchwords:
Criminal law and procedure - Justices - Expedited committal of accused pleading guilty to indictable offence - Failure of Magistrate to advise defendant in accordance with Justices Act 1902, s 100(1) - Requirement of Act mandatory - Order for committal quashed
Legislation:
Criminal Code, s 378, s 391, s 393, s 574
Justices Act 1902, s 98, s 100, s 101
Justices (Forms) Regulations 1982
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr R E Cock QC & Mr M Mischin
Respondent : Mr S A Walker
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : McDonald & Sutherland
Case(s) referred to in judgment(s):
Cain v Glass (No 2) (1985) 3 NSWLR 230
Carter v Evans (No 2) (1990) 3 WAR 94
Cooling v Steel [1971] 2 SASR 249
House v R (1936) 55 CLR 499
Jones v Holmwood [1974] WAR 33
Jones v Moffatt, unreported; SCt of WA; Library No 990196; 31 March 1999
Margetson v R [1980] WAR 135
Norbis v Norbis (1986) 65 ALR 12
R v Liberti (1991) 55 A Crim R 120
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Tihanyi v The Queen [1999] WASCA 226
Case(s) also cited:
Re Boothman; Ex parte Landers [1999] WASC 169
Craig v State of South Australia (1995) 184 CLR 163
Lim v Bateman [1999] WASCA 305
Maxwell v The Queen (1996) 184 CLR 501
R v Popovic [1964] Qd R 561
R v Wong (1995) 16 WAR 219
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Miller J. For the reasons which his Honour gives, I agree that this appeal should be dismissed.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I am in agreement with them, and wish to add some brief further observations.
3 There are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.
4 In Cooling v Steel [1971] 2 SASR 249, Wells J noted (at 250) that:
"It is imperative … that courts of summary jurisdiction should follow practices that will avoid the possibility that a party … should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him".
5 The guidelines for dealing with unrepresented defendants, which his Honour derived from that general expression of principle, have been followed in many jurisdictions, including Western Australia (eg Jones v Holmwood [1974] WAR 33).
6 The danger that an accused person will not understand proceedings or will, for some other reason, fail to "give a good account" of him or herself is obviously most pronounced in those cases where the person is unrepresented. However, counsel, and particularly duty counsel, in Courts of Petty Sessions are often faced with inadequate time to consult with clients, and with clients who, because of anxiety about the imminent proceedings, or for other reasons are unable to give instructions with the detail and conciseness that would assist counsel in representing them appropriately.
7 It was against this background that the procedure known as the "fast-track committal" came to be incorporated into the Justices Act 1902. Such a procedure has real potential advantages: both for the community, in decreasing the costs and improving the efficiency of the administration
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of justice; and for the accused person in giving the opportunity for an early indication of remorse so as to mitigate sentence, and in ensuring that whatever sentence must be served, is imposed as speedily as possible so that the person can then turn his or her attention to rehabilitation and reintegration into the community. However, the procedure carries with it certain real potential disadvantages to an accused. A plea of not guilty at that early opportunity may, at least in the absence of any explanation, be seen as indicating an attitude less remorseful than that of a person who pleads guilty at the first opportunity, while a plea of guilty, once entered, can be altered only exceptionally: Tihanyi v The Queen [1999] WASCA 226.
8 The nature of the jurisdiction in which the plea may be entered pursuant to s 101 of the Justices Act, and the potential seriousness of the consequences of entering a plea, are reasons suggesting the legislative intention was that justices or a magistrate should not be able to accept a plea of any kind - that is should lack jurisdiction to accept it - unless they had first informed the defendant, as that section requires, that he or she was not required to plead.
9 I would add that I am not persuaded that the general principle that superior courts should only intervene in "committal proceedings" in exceptional or special cases, as enunciated in Carter v Evans (No 2) (1990) 3 WAR 94 per Wallace J at 98-9 and Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235 per Kirby P is one which can be applied unmodified to the procedure created by s 101 of the Justices Act. The committal proceedings referred to in each of those cases were the traditional committal proceedings in which witnesses - sometimes very many witnesses - would be called in order to demonstrate to a magistrate that there was a prima facie case against an accused person. The interruption of those proceedings was likely to cause hardship to witnesses, to delay the proceedings so as potentially to result in injustice due to loss of evidence or fading of memory, to increase costs substantially, and to distract attention from the ultimate issues for determination.
10 By contrast, s 101 provides a simple procedure in which the decision to commit is effectively made by the defendant him or herself by the entering of a plea of guilty. While the result of such a procedure may be the committal of the defendant to a court of competent jurisdiction for sentence, it is very different from the "committal proceeding" as traditionally understood. In my view, a discretion to intervene, or refrain from intervening, in a procedure of this kind should be exercised by
(Page 5)
having regard to the sorts of considerations referred to by Templeman and Miller JJ in this case.
11 MILLER J: This is an appeal from the decision of Templeman J making an order absolute for a writ of certiorari to quash an order for committal of the respondent for sentence under s 101(1)(ii) of the Justices Act 1902 ("the Act"). The grounds of appeal are in the following terms:
"1. His Honour erred in law in holding that the failure of the learned Magistrate to inform the defendant, pursuant to Section 101(1)(a) Justices Act 1902, that she was not required to plead to the charges was an essential condition of the Learned Magistrate's jurisdiction to commit the defendant for sentence.
2. His Honour erred in law in failing to have regard to the fact that there was no misunderstanding of the defendant's rights nor the consequences of her plea, and accordingly erred in the exercise of his discretion to grant this relief when there were no sufficient circumstances warranting intervention."
12 The respondent had been charged in the Court of Petty Sessions at Kalgoorlie with two matters. One was a charge of stealing a motor vehicle contrary to s 378 of the Criminal Code and the other a charge of armed robbery in company, contrary to s 391 and s 393 of the Criminal Code. Although the charge of stealing a motor vehicle may have been dealt with summarily, the two charges were materially connected and the charge of armed robbery in company could not be dealt with summarily. Accordingly, the provisions of s 100 of the Act applied, and the Magistrate was required to adjourn the complaints, following which the prosecution was obliged to file with the Clerk of Petty Sessions and serve on the respondent certain materials. The provisions of s 100(1)(d), (e) and (f) list those materials as follows:
"(d) a statement of the material facts relevant to the charge;
(e) a copy of -
(i) any statement signed by the defendant;
(ii) any record of interview with the defendant (signed or unsigned by the defendant); or
(Page 6)
- (iii) the substance of anything said by the defendant to a member of the Police Force that is material to the charge,
in the possession of the prosecution; and
- (f) notice of any tape or videotape recording of conversations between the defendant and a person in authority in the possession of the prosecution."
13 The prosecution duly filed and served the statement of material facts and gave notice that there was a videotaped record of conversations between the respondent and investigating officers.
14 The matter came on again in the Court of Petty Sessions at Kalgoorlie on 20 October 1998. It appears that on that day a co-accused of the respondent was first dealt with and committed for sentence. What then happened was recorded in the transcript in the following way:
"Court Orderly: Matter called.
Mr Keeley: Yes, sir, it's a similar situation, a remand to probably the same date would be convenient in the Supreme Court, all matters with a PSR.
His Worship: Yes, thank you. Is your name Katherine Elizabeth Landers?
Miss Landers: Yes, sir.
His Worship: You're charged that on the 8th of October 1998 at Maylands you stole a Ford Fairmont Sedan valued at $5000.00 the property of Dale Smith, contrary to Section 378 of Criminal Code. How do you plead to that charge?
Miss Landers: Guilty.
His Worship: And on the 10th of October 1998 at Kambalda you stole from Noel Adams trading as the Kambalda Liquor Store with actual violence, $900.00 the property of Noel Adams trading as the Kambalda Liquor Store, and at the time you were armed with a dangerous weapon, a knife, and you were in company of others contrary to Section 391 and 393 of the Criminal Code. How do you plead to that charge?
(Page 7)
- Miss Landers: Pardon sir?
Mr Keeley: Sir, could I, sorry sir, I just think we might have forgotten. Take a seat.
His Worship: You are also charged that on the 10th October 1998 at Kambalda you stole from Noel Adams trading as Kambalda Liquor Store, $900.00 the property of Noel Adams trading as Kambalda Liquor Store and at the time you were armed with a dangerous weapon, a knife …
Miss Landers: Sir, I wasn't armed with it.
Mr Keeley: Sir, look we better stand this down, I better have another talk I think.
His Worship: Explain the nature of acting (inaudible). Miss Landers: I'll stand the matter down so that Mr Keeley can have a further talk with you and explain what's going on. Yes, thank you.
Court Orderly: Matter recalled.
Mr Keeley: Yes, I think we are all clear now.
His Worship: Are you Katherine Elizabeth Landers?
Miss Landers: Yes, sir.
His Worship: You are charged that on the 10th of October 1998 at Kambalda you stole from Noel Adams trading as Kambalda Liquor Store with actual violence, the sum of $900.00 the property of Noel Adams and at the time you are armed with a dangerous weapon, a knife, and you were in company of others contrary to Section 391 and 393 of the Criminal Code. How do you plead to that charge?
Miss Landers: Guilty.
His Worship: And all these other matters Mr Keeley?
Mr Keeley: Sir, they should all be remanded to the Supreme Court at the same time. It will save doing a Section 32 notice at a later stage.
…
(Page 8)
- His Worship: Yes, thank you. Miss Landers you are remanded on the substantive change of armed robbery that is dangerous weapon, being a knife, and in company of others to the Perth sessions of the Supreme Court commencing on the 1st December 1998 for your sentence. A pre-sentence report is ordered. The remand is on a 30 day cycle.
Likewise you on the other charges that you're facing to which you have pleaded guilty. Those are all remanded to the Supreme Court at Perth the 1st day of December 1998 a pre-sentence report ordered, the remand is in custody, thank you."
15 Under the provisions of s 101 of the Act the learned Magistrate was directed to first tell the respondent that she was not required to plead to the charge and then to give her the opportunity to plead. The section is in the following terms:
"(1) Following the service by the prosecution of the material referred to in section 100(1), the justices shall -
(a) tell the defendant he or she is not required to plead to the charge; and
(b) give the defendant the opportunity to plead to the charge.
(2) If the defendant pleads guilty to the charge, the justices shall, without convicting the defendant, commit the defendant to a court of competent jurisdiction for sentence."
16 It was the learned Magistrate's failure to comply with the provisions of s 101(1) of the Act which led Templeman J to conclude that there had been an excess of jurisdiction by the Magistrate, in consequence of which the order for committal was quashed. The conclusion reached by his Honour was as follows:
"The question is whether, as a matter of construction, the requirement on the justices to tell the defendant that he or she is not required to plead to the charge is an essential requirement, or whether it is merely, in substance, an administrative matter.
(Page 9)
- It seems to me, although I can see that the matter is eminently arguable, that the requirement is an essential one. Section 101 permits a defendant to have the proceedings expedited if the various matters referred to in s 100 are complied with.
One frequently sees in cases of this kind that shortly after an a suspect is detained, he or she will be interviewed by police officers, who will form a view as to that person's guilt and will say at the conclusion of the interview, "You will be charged with such-and-such an offence." I am not in any way being critical of police officers for taking that view or adopting those procedures. That is their job. The police officers will then tell the accused person that he or she is to appear, after quite a short interval, before a Justice by whom the matter will be dealt with. The accused person then appears before the justice.
In those circumstances it seems to me that even when an accused person is legally represented, there may well be a feeling of inevitability about the conviction on the relevant charge in the mind of that person, coupled with a desire to get the matter over with as quickly as possible, and therefore to plead guilty.
It seems to me that the requirement to tell a defendant that he or she is not required to plead to the charge in those circumstances is essential because it requires someone in very great authority in the overall scheme of things - that is, the presiding Justice or the stipendiary Magistrate - to make it plain to the defendant that he or she is not required to plead. It seems to me that that is a very important safeguard because it may well inform a defendant, perhaps for the first time (and indeed, for the last time) that there is no inevitability about the outcome of the proceedings: and that if there is a defence, then the defendant will be given an opportunity to put that defence before a court of competent jurisdiction in due course.
In those circumstances it seems to me that this is not merely an administrative requirement which does not matter. It is, I think, a fundamental and essential requirement if the expedited procedure is to be followed."
17 Templeman J accepted that there existed a discretion whether or not to quash the committal and concluded:
(Page 10)
- "This is a difficult question because it is to a certain extent bound up with the first limb of the application. There is certainly an inference from the transcript of the hearing on 20 October that Ms Landers' counsel advised her to plead guilty. I stress that as purely an inference which I draw from the way in which the matter unfolded.
It is of course said that the materials which had been provided by the prosecution were deficient because they failed to make reference to a valid defence. Accepting that to be the case for the purpose of the argument, one could see that in those circumstances Ms Landers might well have been advised to plead guilty. Had the materials not been deficient, the advice might well have been different.
It is quite impossible to go into that in any detail or even at all. However, I am troubled by the existence of those circumstances and for those reasons, I have come to the conclusion that I should exercise my discretion and quash the order for committal on the basis that there was non-compliance with the provision of s 101(1)(a) of the Justices Act. There was therefore an excess of jurisdiction by the stipendiary Magistrate and in the exercise of my discretion, I should grant the relief sought."
18 The Director of Public Prosecutions argued before this Court that the learned trial Judge erred in holding that the failure of the learned Magistrate to inform the respondent pursuant to s 101(1)(a) of the Act, that she was not required to plead to the charges, was an essential condition of the learned Magistrate's jurisdiction to commit the respondent for sentence. He submitted that the learned trial Judge's interpretation of s 101(1) was not supported within the existing statutory scheme under Part V of the Act, arguing that the section is procedural only and not a condition of a Magistrate's jurisdiction to commit a respondent to a higher court. Reliance was placed upon the decision of Wallace J in Carter v Evans (No 2) (1990) 3 WAR 94. In that case it was held that although the effect of the terminology used in s 101A and Schedule IX of the Act (as it then appeared) was that a defendant must be advised in person of his rights, if an election was made pursuant to s 101B of the Act to have a preliminary hearing without the defendant being so advised, that election was not a nullity. Wallace J (at 96 - 97) set out what had occurred:
"After a number of appearances before the Court of Petty Sessions and after amendment to the charges which had initially
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- been preferred against the appellant Connell alone, Connell elected for a preliminary hearing of the charges against him. He was represented by experienced counsel. It appears, however, that s 101A of the Act was not complied with and the Ninth Schedule thereof was not read to Connell.
…
The construction argument which Connell puts is that because the provisions of s 101A and Sch IX of the Justices Act were not strictly complied with, his election is a nullity. Thus, if successful, it would mean that the matter would be returned to the Court of Petty Sessions for compliance with s 101A of the Act to be met. This would enable further argument in respect of particulars to ensue."
19 The conclusion reached by Wallace J (at 98) was:
"Hence, the plaintiff Connell's construction argument. He has already elected a preliminary hearing. Mr Miller has stressed the mandatory nature of the language used in s 101A of the Act. When the relevant provisions thereof are placed under close analysis, however, it becomes apparent that the terminology used is in the form necessary to advise a defendant, in person, of his rights. That becomes clear when one reads s 101A(1)(a)(i) and (ii). Turning to the provisions of the Ninth Schedule, the content of Pt A and the last sentence of Pt B confirms the view which I have just expressed. Part C places this opinion beyond contention. The hearing is adjourned to enable the prosecution to make available to the defendant copies of written statements of its witnesses in accordance with s 69(2) of the Act. With these copies of written statements will be given a copy of any document or other exhibit intended to be produced by the prosecution at the trial by those witnesses. Section 69(3)(d) and (g) makes it clear that the presentation of such a statement is subject to the objection of other parties to the tender thereof. The last paragraph of Pt C commences with the words: 'If you … elect not to have a preliminary hearing you will be required to plead to the charge …' That provision, in my opinion, further confirms the view expressed above."
(Page 12)
20 The decision of Wallace J was given in the face of what his Honour termed the mandatory provisions of s 101A of the Act, which was then in the following terms:
"101A. (1) Where a person is charged before justices with an indictable offence -
(a) when he is first brought before the justices, the justices -
(i) shall read and explain to him the offence with which he is charged;
(ii) shall address him in the form of words prescribed in Part A of the Ninth Schedule to this Act, or in words to the like effect; and
(iii) shall, where the charge may be dealt with summarily at the election of the defendant, address him in the form of words prescribed in Part B of the Ninth Schedule to this Act, or in words to the like effect, and, if he so wishes, shall adjourn the proceedings in accordance with the provisions of this Act;"
(Page 13)
- charges. As the respondent was represented by counsel, it can be assumed that the learned Magistrate considered it unnecessary to read the charges and explain to the respondent the meaning of them. Under the provisions of s 98(3), the learned Magistrate was obliged to tell the respondent that she was not required to plead and was required to cause her to be given a notice in the prescribed form, explaining the procedures in Part V of the Act. Again, these precise steps do not appear to have been followed, but it is clear that the respondent was represented by counsel, and in these circumstances the strict formalities seem to be dispensed with. In any event, the provisions of s 100 were clearly complied with and pursuant to s 98 of the Act, a form 10 issued pursuant to the Justices (Forms) Regulations 1982 was given to the respondent. That form informed her that she had been charged with an indictable offence and proceeded to set out what would occur before the charge against her was dealt with. Relevantly, it stipulated what would occur before she next appeared in Petty Sessions in the following terms:
"Before you are given the opportunity in the court of petty sessions to plead to the charge against you, the prosecution will give you -
• a document stating the facts of the case against you in connection with the charge,
• a copy of any statement made by you to the police and signed by you,
• a copy of any interview with the police that was written down and signed by you,
• notice about any tape or videotape of any interview of you by the police,
• a written version of anything you said to the police that the police think is relevant to the charge.
You should read all the papers that the prosecution give you.
When you next come before the court after getting the papers from the prosecution, the magistrate will ask you if you want to plead to the charge. You do not have to, but if you want to, you can plead guilty or plead not guilty.
(Page 14)
- If you plead guilty the charge will be sent to either the Supreme Court or the District Court together with a copy of the papers that the prosecution gave you.
If you plead not guilty or if you do not plead, you have a right to have a preliminary hearing of the charge in the court of petty sessions. The attached notice is about preliminary hearings and you should read that.
PLEAS OF GUILTY
By law a court can take into account a plea of guilty and the stage when a person pleads guilty and may impose a lesser sentence accordingly."
22 The Director argued that the respondent, having been in receipt of this material, could have been left in no doubt that when she next appeared before the Court of Petty Sessions she was not required to plead and did not need to be so told by the learned Magistrate. This (it was argued) supported the submission that the provisions of s 101(1)(a) were procedural only.
23 The Director also made reference to the fact that the learned trial Judge considered the election by the respondent to plead guilty to be something which it would be difficult to change. His Honour said:
"In the present case it seems to me that the election by an accused does have consequences. If a defendant pleads guilty to a charge, then the consequence is that in due course that defendant will appear before the appropriate court - in the present case, the Supreme Court - for sentencing. There is no opportunity, it seems, as the law presently stands, for a defendant who has pleaded guilty in the circumstances of this case to change his or her plea. I am told that that is a matter which is to be considered by the Court of Criminal Appeal on 3 September but I must deal with the case on the law as it stands today."
24 The law has been clarified since the decision of the learned trial Judge, the decision in Tihanyi v The Queen [1999] WASCA 226, holding that there is an inherent discretion on the Court to permit a change of plea of guilty to a plea of not guilty even though an accused person may have pleaded guilty below and repeated that plea in the District Court or the
(Page 15)
- Supreme Court. Malcolm CJ summarised the position (at [10]) as follows:
"I specifically agree with the analysis by Murray J of the provisions of s 618 of the Code and the existence of an inherent discretion in the Court to permit a change of plea of guilty to a plea of not guilty, even though the accused may have pleaded guilty below and repeated that plea in the District Court or the Supreme Court. I reach that conclusion for the reasons stated by Lucas J in R v Popovic [1964] Qd R 561 at 567, with whom Hanger and Wanstall JJ agreed. In particular, I agree that a person in respect of whom a plea is entered by force of a statutory provision and deemed to have been actually pleaded should be in no different position from a person who actually made a plea to the same effect. The inherent jurisdiction of the Court to allow a change of plea in the exercise of discretion according to the principles at common law was recognised by Wickham J in Margetson v R [1980] WAR 135 at 139 140, with whom Lavan SPJ and Jones J agreed."
26 The Director argued that whilst courts have a discretion to allow a change of plea to not guilty, this is a power to be exercised with caution and in the absence of any misunderstanding by the respondent of her rights or the consequences of her plea, the learned trial Judge should have exercised his discretion so as not to intervene in the matter. Reliance was placed upon R v Liberti (1991) 55 A Crim R 120 where Kirby P (at 122) said:
(Page 16)
- "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81."
27 Finally, it was submitted by the Director that even if this Court concluded that the learned Magistrate had acted in excess of jurisdiction, the inherent jurisdiction of the court of arraignment and its powers pursuant to s 618 of the Criminal Code are sufficient to address any issues relating to any change of plea by a defendant who has pleaded guilty before a Court of Petty Sessions. The learned trial Judge should therefore has exercised his discretion so as not to intervene in committal proceedings by the issue of the writ of certiorari.
28 The respondent argued that the learned trial Judge was entirely correct in holding that the failure of the learned Magistrate to inform the respondent that she was not required to plead to the charges was an essential condition of the existence of jurisdiction to commit her for sentence. It was argued that the requirements imposed upon the prosecution under s 101 of the Act should be strictly construed, reliance being placed upon the observations of Wickham J in Margetson v R [1980] WAR 135 at 137 that such provisions are "remarkable" and "a fundamental departure from legal principles evolved over centuries". Counsel for the respondent sought to distinguish the decision in Carter v Evans (supra), contending that Part C of the Ninth Schedule, which was then under consideration, contained no advice that there was no requirement to plead, and summarised in detail the preparations for and conduct of a preliminary hearing, advising the defendant that if he elected not to have a preliminary hearing he would be required to plead to the charge. Reliance was also placed upon Jones v Moffatt, unreported; SCt of WA; Library No 990196; 31 March 1999, where McKechnie J followed a line of established cases to the effect that where there has been a failure to elect for trial either on indictment or summarily (Criminal Code, s 574), there is an irregularity which makes a purported assumption of jurisdiction by a Court of Petty Sessions to try a defendant invalid and the proceedings thereafter a nullity. The provisions of s 574 of the Code and s 98 and s 99 of the Act were said by his Honour to be "no mere
(Page 17)
- formality … (which) must be complied with strictly", with the result that failure by a Court of Petty Sessions to follow the procedure will always result in quashing of the conviction or setting aside of an acquittal.
29 Counsel for the respondent argued that although the respondent may now seek to be permitted to change her plea, the discretion in that regard will only be exceptionally exercised, as was made clear by Murray J in Tihanyi (supra) at 20. In relation to the question of discretion, counsel for the respondent argued that the learned trial Judge made reference to all relevant and proper considerations, and urged this Court to be slow to interfere with the learned trial Judge's exercise of discretion in that regard. Counsel also contended that this case could not be said to be one in which there were grounds upon which the learned trial Judge should in the exercise of his discretion have withheld the grant of prerogative relief. Reference was made to TheKing v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, where (in reference to the question of relief by way of writ of mandamus) the Court said:
"The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
- What was put by counsel for the respondent was that it could not be said in the instant case that there was a "more convenient and satisfactory remedy", the question of the respondent's ability to change her plea being very much at large and governed by the strictures expressed in Tihanyi (supra), in particular by Murray J at 20.
30 In my view, the learned trial Judge was correct in concluding that the requirement of the learned Magistrate to inform the respondent on 20 October 1998 that she was not required to plead to the charge and then to give her the opportunity to plead to it was an essential requirement and not one which could be categorised as merely procedural in nature. The
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- mandatory terms of the section and the scheme of the section all favour that conclusion. In my view, the categorisation by Wallace J in Carter v Evans (supra) of mandatory provisions in the language of s 101A of the Act as it then stood as being merely necessary to advise a defendant in person of his rights (by inference purely procedural) should not be followed. The mere fact that a defendant receives a form 10 under the Justices (Forms) Regulations 1982 in which there is contained general advice about the nature of the proceedings which will occur upon appearance pursuant to the provisions of s 101 does not alter the essential requirements of s 101(1)(a). Nor, in my view, does s 101A alter or affect the import of s 101(1)(a). Nor does it matter that the legislature has failed to provide for the consequences of a failure to advise a defendant that he or she is not required to plead. If anything, the failure of the legislature to import any provision in the Act as to what the consequences might be only underlines the fact that the mandatory language used in the section is an essential requirement that goes to jurisdiction, and not merely a procedural one. Although the decision in Tihanyi (supra) now makes it clear that a superior court retains a discretion to allow a defendant to change a plea of guilty entered in a lower court, that cannot be said to be an answer to the essential question of the import of s 101(1)(a). The discretion to allow a change of plea will only be exceptionally exercised, as was made clear by Murray J at 48.
31 The question remains whether, in the exercise of his discretion, the learned trial Judge should have granted the relief sought before him. I am unpersuaded by the appellant's submission that when considering the exercise of discretion to grant relief the learned trial Judge effectively considered the merits of allowing a respondent to change her plea. The learned trial Judge declined to go in any detail into the circumstances in which the respondent had pleaded guilty, pointing out only that an inference could be drawn from the transcript of the proceedings that her counsel had advised her to plead guilty, and concluding that the circumstances in which the respondent may have been advised to plead guilty may in turn have been based upon deficient materials. However, I stress that the learned trial Judge referred only in passing to these factors.
32 The principles which govern interference by an appellate court with the exercise of a discretionary judgment at first instance have been constantly reiterated. They were definitively expressed by the High Court in House v The King (1936) 55 CLR 499 at 504 - 505:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary
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- judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- For further discussion on the terms "discretion" and "principle", see Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 - 519.
33 Although in the present case the learned trial Judge considered the matter without the benefit of the decision of this Court in Tihanyi (supra), I am unpersuaded that this fact alone is a sufficient basis upon which to interfere with the discretion exercised by him. Although there is now an opportunity to change a plea of guilty in the circumstances in which the respondent entered her plea, the discretion to allow a change of plea will be exercised only exceptionally. Although at first glance the respondent's plea appears to have been one entered after legal advice and presumably upon consideration of the merits of so-doing, there are live questions as to the extent to which the respondent was advised by her counsel, and the transcript of the proceedings before the Court of Petty Sessions on 20 October reveals the respondent's own hesitation about pleading to the charge of armed robbery in company. When looking at the matter as it unfolded before the Court of Petty Sessions on 20 October, it is apparent that consideration of the provisions of s 101 of the Act were ignored, probably because the respondent was represented by counsel who simply treated the matter as a continuance of the preceding case in which the co-accused had been dealt with. However, the concerns that the learned trial Judge had about the respondent's knowledge of her rights remain. In any event, it is difficult to see how any of the well-recognised grounds upon which a Judge at first instance may, in his discretion, have withheld the remedy of certiorari, existed. There cannot be said to be a "more
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- convenient and satisfactory remedy" which exists in the present instance, there being no confidence whatever in the proposition that the respondent might successfully change her plea in this Court.
34 In a case in which the transcript reveals that a defendant in Petty Sessions has received and considered carefully legal advice on the ramifications of entering a plea in accord with what is known as the fast-track system, different considerations may apply. That, however, does not, on the face of it, appear to be this case. To the contrary, confusion on the part of the respondent and a deliberate shortcutting by her counsel of the procedures set out in the Act appear to have occurred. In those circumstances, I find it impossible to interfere with the exercise of discretion exercised by the learned trial Judge. For these reasons I would dismiss the appeal.
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