R v Cook [2005] ACTSC 114 (22 November 2005)

Last Updated: 30 November 2005

R v JAMES HOWARD COOK [2005] ACTSC 114 (22 November 2005)

CRIMINAL LAW- murder- rejection of plea of guilty to manslaughter- whether Crown needs leave to withdraw acceptance of plea of guilty in full discharge of the indictment.

Evidence Act 1995 (Cwth), ss 191, 192

Supreme Court Rules, O 80 r 27

No SCC 99 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 22 November 2005

IN THE SUPREME COURT OF THE )

) No SCC 99 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

JAMES HOWARD COOK

ORDER

Judge: Crispin J

Date: 22 November 2005

Place: Canberra

THE COURT FINDS THAT:

1. the parties have leave to make applications under Order 80 rule 27 of the Supreme Court Rules for leave under s 191 of the Evidence Act 1995 (Cwth) and the Crown has leave to similarly apply for leave to withdraw its acceptance of the plea. In each case the application should be supported by an affidavit setting out the facts and circumstances upon which the party intends to rely in support of any such application.

1. 1. On 1 February 2005 the accused was arraigned before Gray J on a single count of murder. He entered a plea of not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment. A pre-sentence report was ordered and the matter was adjourned for sentencing.

2. The proceedings were then listed before Higgins CJ on 22 April 2005. A statement of agreed facts was tendered and other evidence, including the pre-sentence report previously ordered, was adduced. When his Honour raised some concern as to the adequacy of the agreed facts, Mr Refshauge SC, the Director of Public Prosecutions, and Mr Salmon QC who appeared for the accused, sought a short adjournment and subsequently read onto the record a statement of further agreed facts. However, after a lengthy debate with the Director, his Honour rejected the plea, finding, in essence, that the agreed facts did not support the proffered plea of manslaughter.

3. The matter was then listed for trial by judge alone on 28 November 2005 after Higgins CJ disqualified himself from further hearing the matter.

4. The parties now seek rulings on the following issues:

° whether the Crown is entitled to seek a verdict on the charge of murder without obtaining leave to withdraw its acceptance of the plea to manslaughter in full discharge of the indictment;

° if not, whether leave should be granted; and

° if so, whether an order should be made staying any further proceedings in respect of the charge of murder.

5. There can be no doubt that the Crown would have needed leave to withdraw its acceptance of the plea had the issue arisen at any time prior to his Honour's decision to reject it. The decisive question now is whether the rejection of the plea, ipso facto, discharges the Crown from its previous commitment and effectively reinstates its entitlement to seek a verdict on the more serious charge or charges in the indictment.

6. The Director argued that, whilst acceptance of a lesser charge in full satisfaction of the indictment should not be seen as a mere contract between the parties, the position was analogous to that which arose when there had been a failure of consideration for a contract or, alternatively, performance of the contract had been frustrated due to refusal of some indispensable statutory approval for the performance of what had been agreed. In either event, each party was restored to his or her original position as if the agreement had never been made.

7. However, neither analogy is wholly satisfactory. As the Director rightly pointed out, questions of public policy are involved. Legal proceedings are, of course, subject to the control and direction of the Court and a party will not normally be permitted to substantially change its position without leave. Nor would the parties be restored, ipso facto, to their original positions. The Crown has not wholly lost the benefit of the plea. There is no reason to suppose that evidence of the accused's plea of guilty to manslaughter could not be given at his subsequent trial for that offence or even, subject to any discretionary considerations, at a subsequent trial for murder. Conversely, the position of the accused has been prejudiced, not only by the admissions implicit in the plea of guilty to manslaughter, but by steps taken in reliance upon the fact that, the plea having been accepted in full discharge of the indictment, he was no longer at risk of being prosecuted for murder. Secure in that knowledge, he consented to agreed facts being put before the court and made further significant admissions in discussing the incident in question with the Probation and Parole officer responsible for preparing a pre sentence report. The accused also proceeded to call witnesses to give evidence on his behalf at the sentencing proceedings prior to the rejection of the plea. It is true that there is ample power to exclude evidence of subsequent admissions on grounds of unfairness, but the fact that the accused would be reliant upon the subsequent exercise of judicial discretion to ameliorate consequential unfairness demonstrates that he was not, ipso facto, restored to his previous position by the rejection of the plea.

8. It is true that the few authorities to which I have been referred concerning rejection of pleas of guilty to manslaughter in full discharge of indictments for murder do not avert to any need for the Crown to obtain leave to withdraw its acceptance of such pleas. The Director submitted that this indicated that there was no such requirement. However, no question of the need for leave was raised in any of those cases and it is rarely safe to draw inferences about the state of the law from judicial failures to address issues that had not arisen for determination. Furthermore, each of those cases concerned the rejection of a plea to manslaughter on the ground that, if the relevant act had been committed in the manner alleged by the Crown, it would have constituted murder. In those circumstances, it is entirely understandable that no issue would have been raised about any need for leave to withdraw acceptance of the plea to pursue the charge of murder on the indictment. Indeed, I would have thought leave to do so was implicit in the rejection of the plea on such a ground and that even if, contrary to this view, an explicit grant of leave had been required, the accused would have realised that there was no reasonable likelihood of it being withheld. In any event, I do not think that substantial support for the Director's contention can be drawn from the absence of any reference to the point in those cases.

9. The issue in the present case arises, of course, in a different context; his Honour having found that the facts alleged by the Crown would not support even a conviction for manslaughter. It was not suggested that it was implicit in the rejection of the plea that the Crown should have leave to effectively reinstate the charge of murder.

10. I am told that there is no authority on the question of whether leave is required in these circumstances, perhaps because a finding that the Crown case is insufficient to establish even manslaughter rarely emboldens a prosecutor to try to prove murder. However, I can see no reason, in principle, to suppose that the requirement for leave, that would undoubtedly have applied had the Crown sought leave to withdraw acceptance of a plea earlier, simply ceased to exist once the plea was rejected. Whilst, as I have mentioned, I accept that there may be cases in which leave is implicit in the decision to reject the plea and others in which the grant of leave would be almost inevitable, I find that leave is required.

11. In determining whether leave should be granted it will clearly be necessary to take into account the public interest in the due prosecution of people alleged to have committed serious criminal offences, and in many cases that may prove to be the dominant consideration. However, it should not be assumed that the grant of leave is a mere formality. An application for leave plainly requires the exercise of judicial discretion in the context of all of the facts and circumstances.

12. In the present case, the fact that the parties have previously relied upon agreed statements of facts presents a further complication. It has not been suggested that his Honour's decision provides a basis for any plea of autrefois acquit or that it has given rise to any relevant issue estoppel. However, s 191(2)(b) of the Evidence Act 1995 (Cwth) provides that evidence may not be adduced to contradict or qualify an agreed fact unless the court gives leave, and s 192 provides that leave may be given subject to conditions. The Director indicated that almost all of the evidence that the Crown would seek to adduce at trial had already been disclosed to counsel for the accused but that the Crown case might differ to some extent from the previously agreed facts. There was no indication as to whether the accused might also wish to adduce evidence in contradiction or qualification of such facts. No issue has been raised about whether any further evidence might involve contradicting or qualifying the agreed facts but, from the limited information available to me, I have been unable to discount such a possibility.

13. Counsel have not been heard on whether the Crown might need leave under s 191, whether such leave should be granted, or whether the resolution of these issues might impinge upon the resolution of the issue as to whether leave should be granted for the Crown to withdraw its acceptance of the plea.

14. In the circumstances, I think it is appropriate to merely state my finding that the Crown does require leave to withdraw its acceptance of the plea in full discharge of the indictment, and to grant both parties leave to make such applications under Order 80 rule 27 of the Supreme Court Rules for leave under s 191 of the Evidence Act 1995 (Cwth) and for the Crown leave to similarly apply for leave to withdraw its acceptance of the plea. In each case the application should be supported by an affidavit setting out the facts and circumstances upon which the party intends to rely in support of any such application.

15. I will hear counsel as to any issue as to the time by which such pleadings should be filed and served, and as to the most convenient means of hearing any further argument that may be necessary.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 November 2005

Counsel for the Crown: Mr R Refshauge SC

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr B Salmon QC and Mr J Sabharwal

Solicitor for the accused: Legal Aid Office (ACT)

Date of hearing: 7 November 2005

Date of judgment: 22 November 2005