The Queen v Gahani

CITATION:The Queen v Gahani [2020] NTCCA 12
PARTIES:THE QUEEN

v
GAHANI, Tatenda

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  RESERVATION OF A QUESTION OF LAW by the SUPREME COURT exercising Territory jurisdiction
FILE NO:CCA 11 of 2020 (21900849)
DELIVERED:  13 November 2020
HEARING DATE:  7 September 2020
JUDGMENT OF:  Grant CJ, Southwood & Kelly JJ
CATCHWORDS:

CRIMINAL PROCEDURE – Admissibility of admissions
Whether evidence of a plea of guilty entered during the course of committal proceedings is admissible at trial as an admission by the accused – Offence punishable by life imprisonment – Evidence inadmissible.
Criminal Code 1983 (NT) s 408
Evidence (National Uniform Legislation) Act 2011 (NT) s 87, s 90, s 138
Local Court (Criminal Procedure) Act 1928 (NT) s 109, s 110, s 134, s 141, s 142

Em v The Queen (2007) 232 CLR 67, Keighran v Lowndes & Anor (unreported, NTCA, 22 May 1997), Maxwell v The Queen (1996) 194 CLR 501, Parker v Comptroller-General of Customs (2009) 83 ALJR 494, Reg v Bamford [1972] 2 NSWLR 261, R v Broadbent [1964] VR 733, R v D [1999] VSCA 148, R v D’Orta-Ekenaike [1998] 2 VR 140, R v Radic [2001] NSWCCA 174, R v Rimmer [1972] 1 WLR 268, The Queen v Rustum [2005] VSCA 142, referred to.
REPRESENTATION:
Counsel:
Crown:M Nathan SC with S Lapinski
Accused:S Robson SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Direct brief
Judgment category classification: B
Number of pages: 36

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Gahani [2020] NTCCA 12
CCA 11 of 2020 (21900849)
BETWEEN:

THE QUEEN

AND:

TATENDA GAHANI

CORAM: GRANT CJ, SOUTHWOOD & KELLY JJ

REASONS FOR JUDGMENT

(Delivered 13 November 2020)

THE COURT:

The following question of law has been reserved for the consideration by the Court of Criminal Appeal pursuant to s 408 of the Criminal Code 1983 (NT):
Is evidence of the entry by the accused of a plea of guilty to the charge of sexual intercourse without consent, which was entered during the course of committal proceedings on 9 August 2019, admissible at trial as an admission by the accused?
The facts and circumstances on which the question arises
The accused was charged by Information for an Indictable Offence taken on 7 January 2019 with the offence of having sexual intercourse with the complainant without her consent, knowing or being reckless as to the complainant’s lack of consent, contrary to s 192(3) of the Criminal Code. During the course of the committal proceedings conducted on 9 August 2019 the accused pleaded guilty to that charge in the following manner and circumstances:
MR DOOLEY:   I understand your Honour may have taken on the matter of Gahani.
HIS HONOUR:   Yes.
MR BETTS:   Betts appearing on behalf of Mr Gahani. He’s present in the court, your Honour.
HIS HONOUR:   Thank you.
MR DOOLEY:   And Dooley for the prosecution, your Honour.
This was originally listed as a part oral committal today with three witnesses for cross-examination, but we’re now proceeding by way of a hand up committal.
So I’ll read the charge to Mr Gahani - - -
HIS HONOUR:   Yes.
MR DOOLEY: - - -and start from there.
Sorry, your Honour, I’ll just indicate that with the date - - -
HIS HONOUR:   Yes.
MR DOOLEY:   - - -it will become on 28 January 2018 for (inaudible).
HIS HONOUR:   I’ll amend that.
MR DOOLEY:   Thank you.
[CHARGES READ BY MR DOOLEY]
MR DOOLEY:   That’s the charge.
HIS HONOUR:   Thank you.
MR DOOLEY:   Take a seat.
In support of that charge, your Honour, I seek to enter the original brief. This brief contains, your Honour, amongst other things, both a recording and also a transcript of the extensive complainant forensic interview done by the complainant, Ms Gahani, which contains a clear allegations of non-consensual penile/vaginal intercourse together, your Honour, with several other civilian and police statements. I’m not sure if your Honour wishes me to take you through them?
HIS HONOUR:   I’ve read her statement.
MR DOOLEY:   Yes.
HIS HONOUR:   I don’t know that you need to point to other matters, do you?
MR DOOLEY:   I don’t believe I do, your Honour, but I just thought I’d leave that up to your Honour, but if your Honour’s - -
HIS HONOUR:   No.
MR DOOLEY:   At this point, I seek to tender that brief.
HIS HONOUR:   Yes. There was mention of CCTV footage, that’s not part of the brief?
MR DOOLEY:   It is, your Honour, but it doesn’t disclose anything of great (inaudible).
HIS HONOUR:   Yes, but that’s in there?
MR DOOLEY:   Yeah there are just there labelled. I profess your Honour I haven’t watched it.
HIS HONOUR:   Well clearly I haven’t as well.
MR DOOLEY:   There’s CCTV footage, your Honour, from inside and outside of the Juicy Bar.
HIS HONOUR:   Yes.
MR DOOLEY:   Efforts were made to obtain CCTV footage from the Convention Centre - - -
HIS HONOUR: Yes.
MR DOOLEY:   - - -and the immediate area outside but because of the lapse of time before the complaint was made, that wasn’t able to be produced.
HIS HONOUR:   Yes there’s a mention that they only keep them for 3 months.
MR DOOLEY:   Yes.
HIS HONOUR:   Yes. All right.
Mr Betts any submissions regarding sufficient evidence?
MR BETTS:   No, your Honour.
HIS HONOUR:   On the material that’s on the brief, I find that there’s sufficient evidence to place the defendant on his trial for the charge on the information. Yes, what’s the date?
MR BETTS:   Mr Gahani, first of all your Honour, Mr Gahani wishes to be committed for sentence.
HIS HONOUR:   Right.
MR BETTS:   And to enter a plea today - - -
HIS HONOUR:   Does he?
MR BETTS:   - - -to the charge.
HIS HONOUR:   All right, thank you. If the charge could be read again.
MR DOOLEY:   Stand again Mr Gahani. This time I’ll ask for your plea.
[CHARGES READ BY MR DOOLEY]
MR DOOLEY:   How do you plead to that charge: guilty or not guilty?
THE DEFENDANT:   Guilty.
MR DOOLEY:   Thank you. You can take a seat.
HIS HONOUR:   All right.
MR BETTS:   And the date would be 18 September.
MR DOOLEY:   Suitable for the Crown, your Honour.
HIS HONOUR:   September you said?
MR BETTS:   Yes.
HIS HONOUR:   At 8:45?
MR BETTS:   Yes, your Honour.
MR DOOLEY:   Yes, your Honour.
MR BETTS:   And as per the practice direction, your Honour, I would seek to have Mr Gahani excused. He will need to attend the court at some point to sign bail, subject to that being granted today.
HIS HONOUR:   All right. Now Mr Gahani is on bail and in fact there’s a compliance report here, which I’ll publish - - -
MR BETTS:   Thank you, your Honour.
HIS HONOUR:   - - -dated 7 August. The conditions of Mr Gahani’s bail are quite extensive.
Mr Dooley, are you consenting to bail on the same terms and conditions?
MR DOOLEY:   Yes I am, your Honour. Save for my learned friend will inform me of one or two minor amendments - - -
HIS HONOUR:   Yes.
MR DOOLEY:   - - - to Mr Gahani to attend in Darwin for purposes of further training in his job.
HIS HONOUR:   Okay.
MR DOOLEY:   But I’ll leave that to my learned friend, he’s got those details.
HIS HONOUR:   Yes.
MR BETTS:   Yes, your Honour, there’s a training course that Mr Gahani is booked to attend between 19 and 29 August. So in relation to that, I seek a variation to condition 4.
HIS HONOUR:   Well condition – yes go on.
MR BETTS:   That on 19 and 26 August - - -
HIS HONOUR:   Yes.
MR BETTS:   - - -Mr Gahani report to the Palmerston Police Station. Between 8 am and 4 pm.
HIS HONOUR:   Okay.
MR DOOLEY:   No objection.
HIS HONOUR:   And that’s the only variation?
MR BETTS:   Yes, your Honour.
HIS HONOUR:   The bail that I have in front of me was entered by Mr Gahani on 9 May, that is the same bail.
MR BETTS:   Yes it is, your Honour.
HIS HONOUR:   Yes, thank you.
MR BETTS:   And your Honour will see that on that date it was varied also for Mr Gahani to travel to Darwin, but he wasn’t required to report in Darwin on that occasion. It was simply suspended. Given the brevity of that trip, your Honour, it’s a bit longer.
HIS HONOUR:   All right.
Mr Gahani will be released on bail on the same terms and conditions as the bail that he entered on 9 May and the bail that he’s been observing, with the exception that condition number 4 will read, “The defendant will report to the officer-in-charge, Alice Springs Police Station every Monday between the hours or 8 am and 4 pm, except on Monday 19 August 2019 and Monday 26 August 2019 when he will report to the officer-in-charge Palmerston Police Station urging the same hours.
Now Mr Gahani is excused if legally represented on 18 September 2019.
MR BETTS:   Please the court.
HIS HONOUR:   Is there anything further?
MR DOOLEY:   Not in this matter.
MR BETTS:   No, your Honour.
HIS HONOUR:   All right, thank you. And I’ve noted clearly on the file that he entered a plea of guilty.
MR BETTS:   Thank you, your Honour.
HIS HONOUR:   And he’s committed for sentence. Thank you.
MR DOOLEY:   The court pleases.
As is apparent from the transcript of the proceedings, the accused was committed for sentence to the Supreme Court on 18 September 2019. The matter first came before the Supreme Court at the Criminal Call Over conducted on 18 September 2019. The matter was adjourned on that occasion, and on three further occasions. Those adjournments were to allow the parties to agree the facts on which the accused would be sentenced.
On 27 November 2019, the matter came back before the Court at the Criminal Call Over, at which time the accused’s then legal representative advised the Registrar that the parties could not agree facts and the accused now intended to plead not guilty. The matter was listed for trial. On 23 March 2020, the matter came before a Judge for the first pre-trial hearing. The Court was not at that time apprised of the purported entry of the guilty plea in the Local Court, and the trial was confirmed to commence on 10 August 2020.
On 29 July 2020, the accused’s then legal representative served a notice on the office of the Director of Public Prosecutions purporting to withdraw the accused’s guilty plea pursuant to s 141 of the Local Court (Criminal Procedure) Act 1928 (NT), which provides (emphasis added):
Withdrawal of plea and substitution of plea of not guilty
(1) When a defendant has been committed or granted bail to appear for sentence, the defendant may, nevertheless, by notice in writing to the Director of Public Prosecutions, not less than 7 clear days before the day of the first sitting of the Supreme Court at which the defendant is to appear, withdraw the defendant's plea of guilty and substitute therefor a plea of not guilty: Provided that in such case the Supreme Court may adjourn or postpone the trial to such day as the Court thinks proper.
(2) Thereupon the defendant:
(a) if committed to appear for sentence, shall be deemed to have been committed for trial and the warrant of committal shall be construed accordingly; or
(b) if granted bail to appear for sentence, shall be deemed to have been granted bail to appear for trial, and any bail undertaking or condition by whomsoever entered into in connection with the grant of bail, shall be construed accordingly.
(3) Upon receipt of a notice under this section it shall be the duty of the Director of Public Prosecutions to cause the notice to be delivered to the proper officer mentioned in section 139.
(4) At the trial of any person who has, under this section, substituted a plea of not guilty, the fact that he had pleaded guilty to the charge on which he is being tried shall not be put in evidence, nor be made the subject of any comment by the prosecution.
The Crown initially formed the view that the notice did not satisfy the legislative requirement that it be served not less than seven clear days before the day of the first sitting of the Supreme Court at which the accused was to appear.
On 29 July 2020, the Crown made application for the accused to be brought before the Court for sentence pursuant to s 142 of the Local Court (Criminal Procedure) Act, which provides:
Supreme Court to sentence accordingly unless plea withdrawn
Subject to section 141, upon the appearance for sentence of a defendant committed or granted bail to appear for sentence, the Supreme Court may pass sentence or otherwise deal with the defendant as if he had been arraigned and had pleaded guilty in the Supreme Court, and all the same consequences shall ensue as if he had been so arraigned and had so pleaded guilty: Provided that if, for any reason, it appears to the Supreme Court that the plea of guilty should be withdrawn, the presiding Supreme Court Judge may advise the person to withdraw that plea, and, if the plea be thereupon withdrawn, the defendant shall be deemed to have been committed for trial, and may forthwith, or after adjournment, and notwithstanding that no information has been filed in the Supreme Court, be arraigned, and the case shall proceed in the usual course.
Shortly before that application came on for hearing, the parties came jointly to the conclusion that the accused could not be bound to the guilty plea as the charge was one carrying a penalty of life imprisonment. That was because s 109 of the Local Court (Criminal Procedure) Act provides (emphasis added):
Procedure on completion of the evidence for the prosecution
(1) When all the evidence offered upon the part of the prosecution has been taken, the Court must consider whether it is sufficient to put the defendant on trial for any indictable offence.
(2) If the Court is of the opinion that the evidence is not so sufficient, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) If the Court is of opinion that the evidence is so sufficient, the Court may:
(a) if the charge is one that may be heard and determined summarily under Division 2 – proceed in the manner directed and under the provisions in that behalf contained in Division 2; or
(b) unless the defendant is charged with an offence punishable by imprisonment for life, ask the defendant whether the defendant wishes to plead to the charge as provided in Division 3, and proceed as thereby directed; or
(c) proceed with the examination as provided in the next succeeding sections.
On the Crown’s concession that the accused was not bound to the guilty plea, the Court confirmed that the trial was to commence on 10 August 2020.
On 6 August 2020, which was one clear business day before the trial was scheduled to commence, the Crown advised of its intention to adduce evidence of the accused’s entry of the guilty plea as an admission against interest. As a consequence, the accused’s then legal representative, who had also appeared for the accused at the committal proceedings, was forced to cease to act for the accused. That consequence followed from the fact that the accused required separate legal advice concerning the admissibility of that evidence, and that the determination of any objection to admissibility would involve a consideration of the circumstances in which the guilty plea had been entered. As a further consequence of the Crown’s untimely indication, the trial dates were vacated.
The accused engaged a new legal representative who subsequently advised the Court that the defence objected to the receipt at trial of evidence of the guilty plea. The accused contends that the evidence is inadmissible by operation of s 90 and/or s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“the ENULA”).
On 20 August 2020, the Supreme Court took evidence from the accused and the accused’s former legal representative about the circumstances in which the plea of guilty was entered.
The accused gave evidence to the effect that he had entered the plea of guilty in the Local Court in order to save his brother, who is the complainant’s father, and members of his brother’s family, the ordeal of giving evidence about highly sensitive matters. If that explanation was to be accepted, while the plea was entered in accordance with the accused’s wishes and instructions at the time, and in full knowledge of the consequence that he would be sentenced to a lengthy period of imprisonment, it did not constitute a true acceptance that he had committed all the essential elements or ingredients of the offence.
The accused’s former legal representative gave evidence to the effect that from the time he first took instructions on 19 February 2019, the accused had maintained that the sexual intercourse had taken place but that it was consensual in nature. They remained his instructions until he met with the accused at court on the morning of the committal proceedings, at which time the accused advised that he did not want to put his brother and family through the ordeal of giving evidence and that he wished to plead guilty. At the time the plea was entered, the accused’s former legal representative was not aware of the provisions of s 109(3)(b) of the Local Court (Criminal Procedure) Act in relation to offences punishable by imprisonment for life. Thereafter, the matter was listed for trial when agreement could not be reached with the Crown concerning the facts attending the act of sexual intercourse.
The legislative scheme
The history of the legislative scheme relating to committal for trial was traced by the Court of Appeal in Keighran v Lowndes & Anor.[1] The earlier United Kingdom statute dealing with committal proceedings[2] was adopted in the Australian colonies, including South Australia, and those statutes remained in place following Federation. They did not make provision for entry of a plea at committal stage, and the plea could not be entered until arraignment in the court of trial. So far as is relevant for these purposes, the legislation did permit an accused to make “answer” (as opposed to a plea) to the charge after receipt of the prosecution evidence in the committal proceedings, but only after being cautioned that anything said in answer would be taken down in writing and might be given in evidence against the accused at trial. Thereafter, the accused was committed for trial if the justice or justices were of the opinion that the evidence was sufficient to warrant that course.
In 1921, the South Australian Parliament repealed the existing statute providing for committal procedures and enacted a Justices Act, the provisions of which were later copied in the Justices Ordinance 1928 (NT), which became the Justices Act (NT) on self-government and was renamed the Local Court (Criminal Procedure) Act in 2016.
The general legislative intention and purpose underlying s 109(3) of the Local Court (Criminal Procedure) Act is utilitarian in nature. If the justice (now the Local Court) forms the view that the prosecution evidence is sufficient to put the defendant on trial for any indictable offence, the provision allows the matter to be dealt with in one of three ways. First, where the indictable offence is one which may be determined summarily, the accused may be dealt with under Division 2. Second, where the accused enters a plea of guilty he or she may be committed for sentence in the Supreme Court in accordance with Division 3. In either case, the procedure obviates any need to proceed with the third possible course, which is a preliminary examination under Division 1 involving the accused’s right to answer the charge, to give evidence and to call other witnesses. While the utilitarian value of the procedure has diminished in more recent times with the introduction of “hand-up” committals, that was not the ordinary practice at the time the provisions were enacted.
The legislative intention and purpose underlying the exclusion from that procedure of offences punishable by imprisonment for life is perhaps less clear. As originally enacted, s 109(3)(b) provided that the justice may:
unless the defendant is charged with a capital offence, or with manslaughter, ask the defendant whether he wishes to plead to the charge as provided in Division 3 of this Part, and proceed as thereby directed;

The corresponding provision in s 134(1) of the Justices Ordinance provided:
Unless the defendant is charged with a capital offence or with manslaughter, the Justice may, when all the evidence offered upon the part of the prosecution has been heard, and if he thinks fit, ask the defendant whether he wishes to plead to the charge.
At the time of commencement of the Justices Ordinance 1928 (NT), the Northern Territory was a Commonwealth territory but the criminal law that continued to apply was the Criminal Law Consolidation Act 1876 (SA), as amended from time to time for the Northern Territory. There were only two capital offences created by that legislation: murder (including petit treason) and “piracy and attempt to murder”. In 1968, the Northern Territory Legislative Council abolished the death penalty for the old offence of “piracy and attempted murder”, and substituted in lieu imprisonment for life with hard labour. In 1973, the Northern Territory Legislative Council passed the Criminal Law Consolidation Ordinance 1973 (NT), which removed the death penalty for the offence of murder and provided instead for “imprisonment for life with hard labour, which sentence cannot be mitigated or varied by the court”. After that time, no capital crimes remained on the Northern Territory’s statute book. However, ss 109(3)(b) and 134 of the Justices Ordinance were still cast in the same terms, with the anomalous result that, if read literally, a plea could be entered under those provisions for the crime of murder but not for the crime of manslaughter. Section 134 of the Justices Ordinance was subsequently and consequently amended with the passage of the Justices Ordinance 1974 to provide:
Unless the defendant is charged with an offence punishable upon conviction by imprisonment for life, the Justice may, when all the evidence offered upon the part of the prosecution has been heard, and if he thinks fit, ask the defendant whether he wishes to plead to the charge.
There was at that time no corresponding amendment to s 109(3)(b) of the Justices Ordinance. That gave rise to a disjunct between the two provisions, as although s 109(3)(b) governed a justice’s function of taking a plea in accordance with Division 3, it was still cast in terms of a “capital offence”. That remained the case until 1 April 2011, with the commencement of the Justice Legislation Amendment (Committals Reform) Act 2010 which amended s 109(3)(b) of the Justices Act to its current form.
Whatever the subjective intention may have been, the effect of the amendments in 1974 and 2011 was to extend the preclusion imposed by ss 109(3)(b) and 134 of the Local Court (Criminal Procedure) Act beyond what were formerly capital crimes to any “offence punishable upon conviction by imprisonment for life”. Although it is only murder which must be punished by imprisonment for life, any offence with a maximum penalty of life imprisonment is punishable by imprisonment for life. Neither party put any contrary submission during hearing of this reference.
The consequence is that there is no provision for the entry of a guilty plea to the most serious categories of offence at the committal stage. Although the statutory language provides that the Local Court “may” ask the accused whether he or she wishes to plead to the charge, the effect of the language is to preclude the Court from taking a plea in circumstances where the accused is charged with an offence punishable by imprisonment for life. That conclusion is reinforced by the language of s 134(1) of the Local Court (Criminal Procedure) Act, which now provides (emphasis added):
If section 109(3)(b) permits, the Court may ask the defendant whether the defendant wishes to plead to the charge.
The purpose of the provision would appear to be protective. That is, for the most serious of offences a plea may not be entered before arraignment in the court of trial and consideration of the presentment by that court. In that way, the superior court maintains sole oversight over any formal confession. That protection was no doubt considered necessary in circumstances where committal proceedings were conducted by a single justice without qualifications in law. Although the force of that rationale diminished as committal proceedings came to be conducted by a professional and qualified magistracy, it has been maintained and extended by the legislature over a series of amendments to the legislation governing the committal processes.[3]
That protective operation recognises that the provision for the entry of a plea of guilty at committal stage is not a mere procedural step[4], and that by doing so an accused is admitting all the essential elements of the offence[5] and relinquishing his or her right to a trial. For those reasons, the legislature has seen fit to preclude the abandonment of those rights at committal stage by accused persons who are charged with the most serious offences in the criminal catalogue.
The legislative scheme also has protective operation even in circumstances where a plea of guilty may be entered and recorded at committal stage. Section 141 of the Local Court (Criminal Procedure) Act allows the withdrawal of a guilty plea made at committal stage, subject to formal conditions. Once a plea has been withdrawn in accordance with that procedure, s 141(4) of the Local Court (Criminal Procedure) Act expressly precludes the admission of evidence of the earlier plea of guilty and of any comment by the prosecution on the matter.
There is then a further protection available to an accused who has not withdrawn a plea of guilty pursuant to s 141 of the Local Court (Criminal Procedure) Act, or who has failed to comply with the formal requirements and/or the time limit for doing so, but nevertheless wishes to withdraw the plea. Section 142 of the Local Court (Criminal Procedure) Act provides that “if, for any reason, it appears to the Supreme Court that the plea of guilty should be withdrawn, the presiding Supreme Court Judge may advise the person to withdraw that plea”. Although the provision remains couched in the somewhat archaic language of the early 20^th century, its operation extends to circumstances in which an accused advises the Court that he or she wishes to withdraw the plea of guilty and the Court determines there is sufficient reason to permit that course. In other words, the power is not one which may be exercised only on initiation by the presiding Judge.
That provision recognises the duty of the Court to obtain a true and unequivocal plea of guilty. The circumstances in which a plea will be permitted to be withdrawn will include where it has been entered by reason of ignorance, fear, duress, mistake or the desire to gain a technical advantage[6]; where it is a mere plea of convenience; where the accused could not in law be convicted on the admitted facts; where the offence is time-barred; and where the charge gives rise to issues of duplicity. Where a plea is withdrawn under that provision, “the defendant shall be deemed to have been committed for trial, and may forthwith … be arraigned, and the case shall proceed in the usual course”.
The necessary implication in those words is that evidence of the earlier plea of guilty is not to be admitted at the subsequent trial, or to be the subject of any comment by the prosecution on the matter.[7] Even if that preclusion is not necessarily implied, the practical effect of a withdrawal of a plea for good reason is that evidence of the plea will not be admitted. It would be anomalous if the Crown was precluded from calling evidence of the earlier plea of guilty where the plea is withdrawn without reason, but was able to do so where the withdrawal is made with the imprimatur of the Court.
The position advanced by the Crown during the course of oral submissions was that s 109(3)(b) of the Local Court (Criminal Procedure) Act only precludes the entry of a plea of guilty to an offence punishable by life imprisonment when determining whether to proceed by way of committal for sentence as provided in Division 3. The submission follows that the preclusion has no application to the conduct of an examination under Division 1, and therefore imposes no general preclusion on an accused making an admission of guilt, or giving an indication that a plea of guilty will be entered, during the committal process. The import of that submission is that the plea in this case, or at least the admission of guilt, was regularly entered or made. The Crown also made the allied submission that in this particular case the plea was not one entered in conformance with s 109(3)(b) of the Local Court (Criminal Procedure) Act. The import of that submission would appear to be that the preclusion on the entry of a plea of guilty to an offence punishable by life imprisonment did not have operation in the particular circumstances of this case. Those submissions should be rejected.
As the transcript extracted above shows, the matter proceeded by way of a “hand-up” committal. That term, as commonly understood and as used by the prosecutor on that occasion, refers to a procedure by which the prosecution evidence is adduced in the form of “handed-up witness statements” admitted as the evidence-in-chief of the witnesses as if they had appeared before the court and given evidence orally[8], and by which there is no cross-examination on those statements[9]. After the prosecutor had tendered the prosecution brief containing the handed-up statements and other evidence, the presiding judge asked defence counsel whether he wished to make any submissions regarding the sufficiency of the evidence. Defence counsel indicated that he did not wish to make any submissions on that issue.
The presiding judge then considered and found in accordance with the requirements in s 109(1) and (3) of the Act that there was sufficient evidence to place the accused on trial for the offence charged. It was at that point that the three possible courses under s 109(3) of the Act presented for consideration. The first course of hearing and determining the charge summarily under Division 2 was not available, and cannot be available for an offence attracting a maximum penalty of life imprisonment. The second possible course was to take the accused’s plea of guilty and commit the accused to the Supreme Court for sentence in accordance with Division 3. Although the plea was volunteered rather than entered in response to a request from the presiding judge[10], and although the charge was read by the prosecutor rather than the presiding judge[11], the Local Court effectively and constructively adopted the course prescribed by s 109(3)(b) of the Local Court (Criminal Procedure) Act and committed the accused for sentence. There was thereafter no call or occasion to proceed with the third possible course of conducting an examination under Division 1.[12] Even had the Local Court proceeded down that path, the question of whether a guilty plea is to be entered does not arise in the context of an examination under Division 1, and there is no express or implied power to take a plea in that context.
The following conclusions may be drawn from a consideration of the legislative scheme governing committal procedures as a whole, and from the protective purposes already described above.
First, the scheme does not contemplate the entry of a guilty plea other than in accordance with Division 3. As a consequence, the operation of s 109(3)(b) of the Local Court (Criminal Procedure) Act precludes the Local Court from receiving or recording a plea of guilty to an offence attracting a maximum penalty of life imprisonment at any stage of the committal processes. Were it otherwise, a guilty plea to an offence carrying a maximum penalty of life imprisonment could not be withdrawn in accordance with ss 141 or s 142 of the Act (which have application only to pleas entered in accordance with Division 3), whereas a guilty plea to an offence carrying a lesser penalty could be withdrawn. In addition, evidence of a plea to an offence carrying a lesser penalty could not be adduced at the subsequent trial, whereas evidence of a plea to one of the most serious offences could be adduced by the prosecution. Both results would be anomalous.
Secondly, even where the Local Court does not expressly ask whether an accused charged with an offence carrying a maximum penalty of life imprisonment wishes to plead to the charge, and where, as in this case, the accused volunteers a guilty plea, the failure to do so does not displace the preclusion on entering a plea to an offence punishable by life imprisonment. The Local Court has no power to receive or record that plea.
However, it does not automatically follow from those conclusions that the Crown is precluded from adducing evidence of the plea at trial.
The position in other Australian jurisdictions
It would not appear that the question on reference has previously arisen in the Northern Territory or South Australia under the terms of this legislation. The position adopted in some other Australian jurisdictions is referable primarily to the legislative framework in place in those jurisdictions.
In Victoria, the Crown may lead evidence of a plea of guilty entered at committal stage where that plea is subsequently withdrawn at arraignment. The earliest authority commonly cited for that proposition is R v Broadbent[13], although it would appear that the practice predates that decision. In that matter the accused had pleaded not guilty to a count of rape and guilty to a count of carnal knowledge. During the course of the trial the accused changed his plea on the carnal knowledge charge to not guilty. The trial judge discharged the jury, remanded the accused for trial on the rape charge, and adjourned the further hearing of the carnal knowledge charge to a date to be fixed. The Crown presented both counts at a second trial before a different judge. The accused pleaded not guilty to both counts and was acquitted of rape but convicted of carnal knowledge. The questions before the Full Court were whether both counts were properly presented at his second trial, whether the verdict of guilty of carnal knowledge was properly accepted, and whether the accused stood to be sentenced by the judge who presided over the second trial. However, in the course of reasons, O’Bryan J (with whom the other members of the Court agreed) stated:[14]
When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, s47 and s48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him. In R v Plummer, [1902] 2 KB 339, at pp. 347, 349; [1900-3] All ER Rep 613, it was said that a prisoner may be allowed to withdraw his plea of guilty on an arraignment at any time up to sentence. Our own Crimes Act says nothing as to what is to happen after a plea of guilty has been made by a prisoner on arraignment. The sections of the Crimes Act 1958 dealing with pleas on arraignment are s 390 to s 396. They prescribe what is to happen on a plea of not guilty, but they say nothing as to what is to happen after a plea of guilty.
In this case, when this prisoner before his Honour Judge Woinarski pleaded guilty to the charge of carnal knowledge, that plea was not entered as a matter of record of the court and there was no judgment on that plea. The proper thing for his Honour to have done, when he directed that the jury be discharged without verdict and that there be a new trial on the charge of rape, was to direct a new trial on the whole presentment. He should not have adjourned for further consideration by him the prisoner's plea of guilty of carnal knowledge. R v Hodgkinson, [1954] VLR 140; [1954] ALR 305, is authority for the conclusion that in relation to the charge of carnal knowledge before his Honour Judge Woirnarski there has been no judgment of the court and no conviction of the accused of that offence. What I have said is in complete accord with the decision of our own Full Court in R v Tonks and Goss, [1963] VR 121. If his Honour Judge Woinarski had done what, in my opinion, he should have done, the prisoner could have come before his Honour Judge Gunson as he did. He would have been arraigned again and he would have been free to plead as he did, that is, not guilty to both counts in the presentment. It was then open to the Crown to lead against him as a matter of evidence that he had at an earlier trial pleaded guilty to the second count of carnal knowledge. The jury could have acted on that evidence in considering his guilt of that offence.
The decision in R v Broadbent was subsequently applied by the Victorian Court of Appeal in R v D’Orta-Ekenaike.[15] In that matter, the accused had entered a plea of guilty at committal but changed his plea to not guilty at trial, during which evidence of the early plea of guilty was admitted. The Court of Appeal made reference to a 1990 paper titled “The Committal in Australia” which had been presented to the Australian Institute of Judicial Administration, in which it was stated:
In South Australia and the Northern Territory, the fact that a defendant initially pleaded guilty at a committal hearing is not admissible as evidence at a trial. In New South Wales this prohibition applies if, following a change of plea, the presiding judge has directed that committal proceedings be resumed. If, however, the defendant is presented directly for trial, evidence of a change of plea may be admissible. In the A.C.T., the prosecutor in any case has the power to give in evidence any admission or confession or other statement of the defendant made at any time which by law would be admissible as evidence against that person. In the remaining jurisdictions [including Victoria], the position appears to be that evidence of an earlier plea of guilty is admissible but can be excluded at the discretion of the trial judge, where the perceived effect of this evidence outweighs its probative value.
The reference to the position in South Australia and the Northern Territory would appear to be based on the provision in s 141(4) of the Local Court (Criminal Procedure) Act. The paper also speaks to a time predating the adoption of the uniform evidence legislation. President Winneke (with whom the other members of the Court agreed), went on to state:[16]
In the State of Victoria the situation has always been, as I understand it, that a plea of guilty entered at the Magistrates’ Court can be changed on arraignment, but the accused is aware from the moment he enters that plea that it is likely to have evidential consequences at the trial. Such is the consequence of the caution administered to him at the time when he enters the plea: reg. 1002 of the Magistrates’ Court General Regulations. As the Full Court of this State said in Broadbent's case at 736:
“When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, ss. 47 and 48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him.”
So far as I am aware, although the nature of the caution has changed, the consequences of the plea have not.
It is true that it is still a matter for the trial judge to determine, in the exercise of his discretion, whether evidence of the plea should be admitted on the trial. There is nothing, however, in the circumstances of this case which suggests that the trial judge was in error in exercising his discretion to allow evidence of the lower court plea to be admitted in evidence at the trial. It is true that the evidence was potent, but prejudice is not to be equated with probative value.

In the course of its reasons, the Court of Appeal also considered the English position in relation to the circumstances in which evidence of a plea of guilty entered in a lower court will be admitted against an accused person at trial. In R v Rimmer[17], the English Court of Criminal Appeal had observed that the occasions on which such evidence was likely to be regarded as admissible would be rare, and involve balancing the probative value of the evidence against the prejudice induced by its admission. The Victorian Court of Appeal attributed that more restrictive approach to the fact that under the statutory provisions then in force in England, a plea of guilty entered before committing justices could only be changed with the leave of those justices. A grant of leave would ordinarily be based on factors militating against the admission of evidence of the plea at trial.
The practice was again affirmed by the Victorian Court of Appeal in The Queen v Rustum.[18] In that case also, the accused had entered pleas of guilty to six counts at committal stage but changed the pleas on five of those counts to not guilty at arraignment. Evidence of the entry of the pleas of guilty at committal stage was admitted at trial. In rejecting an appeal on that ground, Nettle JA (with whom the other members of the Court agreed) stated:[19]
Counsel for the applicant contends that the judge's ruling was inadequate in failing to recognise or deal sufficiently with the prejudice to the applicant of admitting evidence of the earlier plea of guilty to the counts other than count 4. I reject that contention too. Evidence of an earlier plea of guilty is potent evidence of guilt and, as has been said, its potency is not to be equated with prejudice [See R. v. D'Orta-Ekenaike [1998] 2 V.R. 140 at 146, per Winneke, P., and R. v. D. [1999] VSCA 148 at [70], per Chernov, J.A]. Consequently, evidence of an earlier plea of guilty is not normally to be excluded unless it is shown that the plea was involuntary or unintentional or otherwise so affected as not to be reliable. Here, the evidence established no more than that the plea was the result of strong advice of counsel. Strong advice from counsel does not render a plea involuntary or unintentional. Evidence of the earlier plea of guilty to count 4 would have been prejudicial, but the judge guarded against that prejudice by directing the Crown not to mention count 4.
All of these Victorian authorities in relation to the admissibility of a plea of guilty entered at committal stage, including the decision R v D[20] to which reference is made in the passage extracted immediately above, are predicated on the particular features of the Victorian processes. First, a plea is taken at committal stage after all the evidence had been called and after the accused is given statutory warnings about the use which might be made of the response to the charges. The effect of the caution administered before a plea of guilty is entered is that it is available to be used in evidence against the accused at trial, and the accused is aware from the moment the plea is entered that it is likely to have evidential consequences at any subsequent trial. Second, once regularly entered the plea is recorded in writing by the court. Third, although it is open to an accused to alter his or her plea of guilty to one of not guilty at arraignment without any need for leave, there is no statutory preclusion on the Crown adducing evidence of the plea of guilty at committal stage.
To the extent that evidence of a plea of guilty may be received into evidence in New South Wales, that would also seem to be on the basis that an elaborate warning and careful explanation of the consequences of admitting guilt is given to the accused at the conclusion of the Crown case in committal proceedings.[21] During the hearing of this reference this Court has not been directed to any case or statutory provision which demonstrates a practice in any other Australian jurisdiction of admitting evidence of guilty pleas which have been entered at committal stage and subsequently withdrawn.
Under the legislative scheme in force the Northern Territory, there is no statutory provision for warnings to be given at the time the plea is entered[22]; for the reasons already described, no plea to a charge carrying a maximum penalty of life imprisonment may regularly be recorded; and if a plea may be regularly recorded, it may also be withdrawn without prejudice. The contention that the evidence is inadmissible by operation of s 90 and/or s 138 of the ENULA falls to be determined having regard to that statutory framework and the protective purposes of ss 109(3), 134, 141and 142 of the Local Court (Criminal Procedure) Act which have been described above.
The operation of s 138 of the ENULA
Section 138(1) of the ENULA provides:
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The burden is on the party seeking exclusion of the evidence to establish that it was improperly or illegally obtained.[23] Although s 138(2) goes on to pay particular attention to actions of law enforcement officers in relation to confessional evidence, the exclusionary provisions are not limited to evidence obtained in those circumstances. So much is apparent from the fact that the agreed provision applies to civil as well as criminal hearings, and to evidence procured by anyone, not just law enforcement officers. In that latter category of case, the focus of the enquiry into impropriety is whether the conduct in question is inconsistent with the minimum standards which society should expect and require of those entrusted with powers of law enforcement. However, the broader purpose of the provision is to afford courts the power to protect the integrity of their processes from subversion by impropriety or illegality.
The ENULA contains no general or specific definition of "impropriety". The method or conduct by which the evidence has been obtained will be “improper” in the ordinary sense if it is "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".[24] Having made that observation, French CJ went on to state:
Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.
The evidence of the plea in this case was obtained both “improperly” in the relevant sense, and in contravention of those provisions of the Local Court (Criminal Procedure) Act which preclude the Local Court at committal stage from receiving and recording a plea to an offence carrying a maximum penalty of life imprisonment, and from committing the accused for sentence to the Supreme Court on such a plea. There is a clear causal link between that impropriety and contravention and the entry of the guilty plea, and evidence of that entry. The fact that the plea was entered voluntarily was no doubt also causative, but that does not displace the causal nexus between the evidence of that matter and the Local Court’s erroneous entertainment of the plea. As described above, the legislative scheme in relation to pleas on committal is that they may not be made at all in respect of such offences, and where the offence is one to which a plea may be made it may also be withdrawn with effect that the fact that the accused had pleaded guilty shall not be put in evidence, nor be made the subject of any comment by the prosecution.
The impropriety in the present case is illustrated by the fact that if the Local Court had been permitted to receive the plea, it would have been open to the accused to withdraw the plea without prejudice in accordance with the mechanism in s 141 of the Local Court (Criminal Procedure) Act or for good reason pursuant to s 142 of the Local Court (Criminal Procedure) Act. It would be anomalous if evidence of a plea which has been irregularly entered and recorded at committal stage could be led at trial because the procedures and protections prescribed by ss 141 and 142 of the Local Court (Criminal Procedure) Act have no application by reason of that irregularity. Nor does the express preclusion on the admission of evidence of a plea of guilty which has been regularly entered and withdrawn impliedly exclude that protection for pleas of guilty which have been entered irregularly. That syntactical presumption can have no application where the legislative scheme does not permit the entry of a plea, and the evidence of that plea has been obtained as a consequence of that irregularity.
The impropriety in this case lies in the fact that the accused was denied those protections, and the more fundamental protection of maintaining at committal stage his right to trial on an offence carrying a maximum penalty of life imprisonment. This is not to say that there was any intentional impropriety or contravention on the part of either the presiding judge, the prosecutor or defence counsel. The irregularity arose as a result of misunderstanding and oversight, but the authorities make it plain that the operation of s 138(1) of the ENULA is not limited or restricted to deliberate or reckless conduct.
During the course of oral submissions the Crown suggested that even if the entry and recording of the guilty plea was improper or in contravention of the relevant legislation, that formal act could be separated and distinguished from defence counsel’s initial indication that the accused wished to enter a plea and be committed for sentence. Accordingly, even if evidence of the entry of the plea is caught by the exclusionary provisions of s 138(1) of the ENULA, the admission constituted by defence counsel’s representation is not. That submission relies on the fact that s 87 of the ENULA provides that an admission made by a person with authority to do so may be taken as an admission by a party to proceedings; and the proposition that representations more equivocally adverse to an accused’s interest in the outcome of a criminal proceeding are commonly characterised as “admissions” within the meaning of the ENULA.
That submission should be rejected on the basis that defence counsel’s indication that the accused wished to enter a plea and be committed for sentence was inextricably linked with the entry and recording of the plea, and formed part of the relevant impropriety or contravention. At a more general level, indications by defence counsel that an accused intends to enter a plea of guilty are routinely made during the course of preliminary processes in the Local Court, and in the Supreme Court following committal. Those indications are given as part of the case management processes to assist in determining whether a matter should be listed for trial, and to afford an accused the benefit of a reduction in sentence for indicating a plea of guilty at an early stage. An accused is not bound by a conditional indication of that nature, and it has never previously been suggested by the Crown in this jurisdiction that evidence of such an indication may be adduced at trial in the event the charge does not ultimately resolve by way of a guilty plea. That is no doubt because the discretionary considerations which would govern whether evidence of that nature may be adduced by the prosecution would be significantly informed and influenced by the fact that such indications are highly contingent on the final formulation of the charge(s), agreement as to the facts on which the plea will proceed, and the finalisation and confirmation of instructions from the accused.
It falls then to determine whether the desirability of admitting the evidence of the guilty plea at committal stage outweighs the undesirability of admitting the evidence in the way in which it was obtained. Section 138(1) of the ENULA provides a non-exhaustive list of the matters the Court may take into account in making that determination. There can be no doubt that the evidence would have strong probative force and, depending on the jury’s assessment of the accused’s evidence concerning the reasons for the entry of the plea, might be determinative of the accused’s guilt. The offence is no doubt a serious one and attracts a maximum penalty of life imprisonment. As already stated, the impropriety and contravention in this case were not deliberate or reckless on the part of any person involved in the committal processes.
However, those factors militating in favour of admissibility are outweighed by the policy considerations involved and the high level of undesirability of admitting evidence which has been obtained by a breach of committal processes designed to provide an accused with the protections which have been described above. Where the intention of the legislature is to preclude the admission of evidence of a guilty plea entered regularly and subsequently withdrawn, it follows a fortiori that there must be discerned an intention to preclude the admission of evidence of a guilty plea which has been entered irregularly and subsequently withdrawn.
For the reasons given in Em v The Queen[25], that conclusion concerning the application of s 138 of the ENULA makes it unnecessary to consider whether evidence of the guilty plea should be excluded because it would be “unfair” within the meaning of s 90 of the ENULA to use the evidence having regard to the circumstances in which the admission was made.
Answer
The question of law reserved is answered as follows:
Question: Is evidence of the entry by the accused of a plea of guilty to the charge of sexual intercourse without consent, which was entered during the course of committal proceedings on 9 August 2019, admissible at trial as an admission by the accused?
Answer: No.

______________________________

[1]Keighran v Lowndes & Anor (unreported, NTCA, 22 May 1997).

[2]Indictable Offences Act 1848 (UK).

[3]The distinction between capital and non-capital offences has not been maintained under the South Australian legislation: see Criminal Procedure Act 1921 (SA), s 109.

[4]R v Radic [2001] NSWCCA 174 at [35].

[5]Maxwell v The Queen (1996) 194 CLR 501 at 511.

[6]Maxwell v The Queen (1996) 194 CLR 501 at 511.

[7]See, by way of analogy, the operation given to the words "in all respects as if the appellant had pleaded not guilty" in Reg v Bamford [1972] 2 NSWLR 261 at 264F.

[8]Local Court (Criminal Procedure) Act, ss 100, 105J.

[9]Although leave may be granted to cross-examination a prosecution witness on a handed-up statement (Local Court (Criminal Procedure) Act, ss 105G, 105H), the common usage, and that adopted by the prosecutor in these committal proceedings, is to refer to a process in which leave is granted for the cross-examination of some prosecution witnesses as a "part-oral committal".

[10]Cf Local Court (Criminal Procedure) Act, ss 109(3)(b), 134(1). It is commonplace in committal proceedings that following the tender of the prosecution evidence defence counsel advises whether the accused who wishes to plead guilty. That indication obviates the need for the presiding judge to ask formally whether the accused wishes to plead to the charge as provided in Division 3.

[11]Cf Local Court (Criminal Procedure) Act, s 134(2). Again, it is commonplace in committal proceedings for the prosecutor to read the charge. The other requirement in s 134(2) that the charge be reduced to writing was satisfied by the written Information which had been served and filed, and on which the proceedings were being conducted.

[12]Local Court (Criminal Procedure) Act, ss 134, 135.

[13]R v Broadbent [1964] VR 733.

[14]R v Broadbent [1964] VR 733 at 736-737.

[15]R v D’Orta-Ekenaike [1998] 2 VR 140.

[16]R v D’Orta-Ekenaike [1998] 2 VR 140 at 145-146.

[17]R v Rimmer [1972] 1 WLR 268.

[18]The Queen v Rustum [2005] VSCA 142.

[19]The Queen v Rustum [2005] VSCA 142 at [9].

[20]R v D [1999] VSCA 148 at [70].

[21]See, for example, Reg v Bamford [1972] 2 NSWLR 261 at 264F.

[22]The only provision for warning and explanation is where the Court proceeds with a preliminary examination under Division 1: Local Court (Criminal Procedure) Act, s 110(1).

[23]See, Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28].

[24]See, Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [29].

[25]Em v The Queen (2007) 232 CLR 67 at [109].

[2020] NTCCA 12

13 November 2020

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Statutory Interpretation

Legal Concepts

Charge

Consent

Procedural Fairness

Statutory Construction