R v Cook [no 2] [2005] ACTSC 124 (1 December 2005)

Last Updated: 7 February 2006

R v JAMES HOWARD COOK [No 2] [2005] ACTSC 124 (1 December 2005)

CRIMINAL LAW- murder- rejection of plea of guilty to manslaughter- application by Crown for leave to withdraw acceptance of plea of guilty in full discharge of the indictment - applications for leave to call evidence contradicting or qualifying agreed facts.

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: 1 December 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: 1 December 2005

Place: Canberra

THE COURT ORDERS THAT:

the Crown be granted leave to withdraw the acceptance of the plea, but only subject to the following conditions:

(i) that the Crown not adduce any evidence of admissions allegedly made by the accused following the Crown's initial acceptance of the plea of guilty; and

(ii) that the Crown not adduce any evidence of, or otherwise seek to rely upon, the disputed passage in the further statement of facts orally communicated to the Court during the sentencing proceedings.

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

4. On 7 November 2005 the parties sought 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. On 22 November 2005 I ruled that the Crown did require leave to withdraw its acceptance of the plea in full discharge of the indictment.

6. I also noted that the parties had previously relied upon agreed statements of facts and pointed out that 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 that s 192 provides that the court may give leave subject to conditions. The Director had previously indicated that almost all of the evidence that the Crown would seek to adduce at trial had been disclosed to counsel for the accused but that the Crown case might differ to some extent from the agreed facts. There had been no indication as to whether the accused might also wish to adduce evidence in contradiction or qualification of such facts. Furthermore, counsel had 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.

7. In the circumstances, I ordered that both 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 that the Crown have leave to similarly apply for leave to withdraw its acceptance of the plea.

8. The accused subsequently applied for leave to adduce evidence to qualify or contradict parts of a further statement of agreed facts that had been orally communicated to the court by the Director with the agreement of the accused. The further statement is set out below with the parts in question in bold type:

The prisoner and the victim fought and during the fight the prisoner gained control of the victim to the extent that the victim was no longer any threat to the prisoner and had stopped struggling. Nevertheless, for a short period of time, about 30 seconds, the prisoner continued to exert pressure on the neck of the victim which pressure ultimately caused the victim's death. Had the prisoner not been intoxicated, which intoxication was self induced, he would have known from the time he gained the control, there was no need to continue to exert the pressure.

9. The Crown also applied for leave to adduce evidence in contradiction or qualification of the words, "about 30 seconds" appearing in this further statement and, in addition, applied for leave to withdraw acceptance of the plea.

10. These applications were listed before me on Friday last and, after hearing further argument from the Director and Mr Salmon, I granted both parties leave to adduce evidence contradicting or qualifying the words "about 30 seconds". I also granted leave for the accused to adduce evidence in contradiction or qualification of the words, "(h)ad the prisoner not been intoxicated ... he would have known from the time he gained the control, there was no need to continue to exert the pressure", but ordered that such leave be subject to the Crown having the right to apply for its revocation should it give rise to some unanticipated prejudice. I indicated that I wished to further consider the submissions made on the question of whether the Crown should have leave to withdraw acceptance of the plea and would give judgment on that question on the following Monday morning.

11. On Monday, I proceeded to grant the Crown leave to withdraw acceptance of the plea on the following conditions:

(i) that the Crown not adduce any evidence of admissions allegedly made by the accused following the Crown's initial acceptance of the plea of guilty; and

(ii) that the Crown not adduce any evidence of, or otherwise seek to rely upon, the disputed passage in the further statement of facts orally communicated to the Court during the sentencing proceedings.

12. I now provide reasons for those decisions.

13. In each case, leave to adduce evidence contradicting or qualifying the agreed statement of facts was granted pursuant to s 192(2) of the Evidence Act which provides that:

Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

14. It may be noted, in considering any application for leave, a court must take into account the matters specifically referred to in that sub section, as well as any other matters that may be relevant in the particular proceeding: see Stanoevski v R (2001) 202 CLR 115 at [41].

15. In the present case, there was ultimately no opposition to leave being granted in the terms that I have mentioned, though Mr Salmon conceded that the accused could not support any application for leave to adduce evidence contradicting or qualifying the words "which intoxication was self induced".

16. In any event, I would have readily concluded that leave should be granted. Whilst there was no explanation as to the circumstances in which this further statement of facts came to be agreed, it was clearly the product of a consultation between counsel during a short adjournment in the sentencing proceedings after Higgins CJ expressed concern about the adequacy of the previously agreed facts to support the charge of manslaughter. Furthermore, the disputed portion of the further statement of facts related to the quantification of what was on any view a very short period of time, apparently a matter of seconds, during the course of a violent incident between two intoxicated men in the early hours of the morning. It may have been understandable that the parties sought to reach agreement on the duration of this period for the purposes of the sentencing proceedings, but there were clearly grounds to suspect that neither the accused nor anyone else would have been able to provide a wholly accurate figure and, once it became clear that the matter would have to proceed to trial, it seemed to me to be appropriate to permit both sides to adduce further evidence as to this issue.

17. The larger passage to which the application by the accused was addressed did not, of course, relate to any facts and circumstances that had existed or any event that had occurred, but rather reflected a conclusion as to what the accused would have "known" if he had not been intoxicated. It seemed likely that his agreement was based, at least in part, upon what he could recall, and both his contemporary perceptions and subsequent recollection of the incident may have been impaired by his intoxication. I also noted that during the course of the sentencing proceedings, his Honour had suggested that it defied belief that the accused may have had a reasonable perception that he was entitled to apply a headlock to the victim in reasonable self defence but that, upon the victim becoming limp, he ought to have known that he was acting in an unlawful and dangerous manner. For the purposes of these applications it was unnecessary to decide whether a court might ultimately be bound to put aside its own misgivings and act upon "agreed facts" that it regarded as being of dubious accuracy. However, having regard to the violent nature of the incident, the fact that the accused was then intoxicated, the subjunctive nature of the "fact" in question, the fact that judicial scepticism had already been expressed about its reliability and its potential importance in the case, I would have readily concluded that leave should be granted to permit the accused to adduce evidence in contradiction or qualification of the issue.

18. Accordingly, the only remaining issue was whether the Crown should be granted leave to withdraw its acceptance of the plea of guilty to manslaughter in full discharge of the indictment. There is little authority on the manner in which this issue should be approached however, in Maxwell v R (1995) 184 CLR 501 at 515 Dawson and McHugh JJ suggested that leave should be refused if the accused, in reliance upon the prosecution's acceptance of his plea, had taken a course that would prejudice him such as by making admissions. In the same case Gaudron and Gummow JJ at 536 said that there were two qualifications to the proposition that a prosecutor may withdraw acceptance of a plea to a lesser charge and explained that:

The second qualification involves other and broader considerations of fairness. For example, there may have been admissions which would not have been made had it been thought that the matter might proceed to trial. Those broader considerations require that it be open to a court to refuse leave to a prosecutor to withdraw his or her acceptance of a plea . . . unless there are good and substantial reasons for allowing that course.

19. The issue subsequently came before the Court of Criminal Appeal in New South Wales in BWM (1997) 91 A Crim R 260 where Hunt CJ noted that in Maxwell the High Court had accepted that leave may be granted to the Crown to withdraw an acceptance of a plea where it is in the interests of justice that it be permitted to do so. His Honour said that the High Court had made it clear that the interests of justice included the legitimate interests of the Crown which prosecutes on behalf of the community, as well as the legitimate interests of the accused. His Honour went on to explain that the legitimate interests of the accused include the prejudice to him by any admissions made, including admissions implicit in the plea itself, which would not have been made if the matter were to go to trial. His Honour added, albeit somewhat cryptically: "The legitimate interests of the Crown include the situation which arises when the facts tendered on the sentencing demonstrate to the judge that the accused was guilty of the more serious offence originally charged".

20. Hunt CJ went on to say that it would not be acceptable to the community, on behalf of which the Crown prosecutes, that a person charged with murder should be sentenced only for the substantially less serious offence of manslaughter where there remains outstanding the disputed but unresolved issues of fact which bear directly upon his guilt or otherwise of the more serious crime. In this case, the Director did not contend that, in making this comment, his Honour had been suggesting that this perception should override all other considerations and I do not understand his Honour to have done so. Any such suggestion would clearly have been contrary to the approach taken by the High Court in Maxwell v R. However, his Honour was clearly anxious to stress that, in determining where the interests of justice may lie, the court must take into account the legitimate interests of the Crown and the community, and those interests include the resolution of disputed issues as to whether the accused person may have been guilty of murder.

21. Acceptance of a plea to manslaughter necessarily means that the Crown forgoes any opportunity to raise such issues. A decision to adopt such a course is obviously taken only because the Crown is satisfied that it is in the public interest to do so. Furthermore, the decision will normally be taken to bind the Crown as well as the accused and he or she will be entitled to act upon the assumption that the more serious charge will no longer be pursued. Hence, applications for leave to with withdraw acceptance of such a plea are comparatively rare. Nonetheless, when such an application is made, the legitimate interests of the community in having such issues resolved must, in my opinion, be balanced against the legitimate interests of the accused in the context of the particular situation that has arisen.

22. As the Director quite properly conceded, the application for leave to withdraw acceptance of the plea in the present case was not prompted by the discovery of some new evidence or the realisation that some aspect of the evidence was of previously unrecognised significance. It was based primarily upon the proposition that the Crown had substantially lost the benefit of the plea.

23. It may be argued, with some justification, that the real quid pro quo for such acceptance is the plea of guilty itself and the benefits directly flowing from the plea, rather than the conviction and sentence subsequently imposed by the court. Furthermore, in the present case the benefits of the plea would not have been wholly lost to the Crown. As mentioned in my earlier judgment in these proceedings, there was no reason to suppose that, in the absence of some ruling based on discretionary grounds, evidence of the plea of guilty to manslaughter could not have been given at the subsequent trial of the accused and the Crown would still have been able to rely substantially upon the agreed statement of facts.

24. However, as the Director pointed out, in deciding to accept a plea to a lesser charge, the Crown may take into account a range of factors that extend beyond the evidentiary value of the admissions implicit in the plea. Those factors may include the apparent certainty of a conviction and resultant penal sanctions, the expeditious resolution of the matter, the saving of the public expense of a trial and, perhaps, the opportunity of sparing bereaved relatives or other vulnerable witnesses the ordeal of having to give evidence. In some cases the Crown may forego prosecution for the more serious offence charged, notwithstanding a perception that there were reasonable prospects of conviction, because any sentence imposed on the lesser charge would be likely to be adequate for the essential criminality of the conduct and the public interest in securing the other benefits, such as those to which I have referred, outweighs any competing public interest in pursuing the more serious charge. Consequently, there was no basis for any assumption that the initial acceptance of the plea had involved an implicit acknowledgement that there had been no reasonable prospects of obtaining a conviction for murder on the evidence then available or that the Crown had actually obtained all of the anticipated benefits of the plea.

25. Nonetheless, parties are not usually permitted to depart from agreed positions merely because some anticipated benefits of the agreement have not been realised.

26. Furthermore, it can clearly be unfair to an accused to permit the Crown to effectively reinstate a charge of murder when, in reliance upon the acceptance of the plea, he or she has undertaken a course of conduct which would create substantial prejudice in the event that such a course were permitted. In the present case, the accused, in reliance upon the plea, conceded that bail should not be further extended and spent some weeks in custody. He also made substantial admissions and proceeded to adduce evidence, albeit not directly related to the events that led to the death of the deceased, during the course of the sentencing proceedings. Perhaps most significantly, he entered into an agreement for the production of the agreed statement of facts and instructed his counsel to consent to the further statement of agreed facts being communicated to the sentencing judge by the Director in open court.

27. The Director submitted that any prejudice could be substantially cured by the imposition of conditions preventing the Crown from relying upon any admissions he may have made in reliance upon the acceptance of the plea. I accepted that that might go some distance towards ameliorating the prejudice that he would otherwise suffer.

28. However, that was not the only potential source of prejudice. Leave to adduce evidence to contradict or qualify an agreed fact does not deprive the agreement itself of any evidentiary value and it may still prove decisive, save to the extent to which the other evidence may show that the true facts are not as agreed or that the agreement was the product of error or some other factor sufficient to justify a conclusion that the relevant factual issue should not be determined by reference to it. Consequently, if the Crown seeks to rely upon a subsequently disputed portion of an agreed statement of facts, the accused may bear an evidentiary onus in relation to the disputed matters. In the present case, the allegation that, but for his self induced intoxication, the accused would have known that it was unnecessary for him to continue to exert the pressure on the deceased might have proven to be an important issue, not only in relation to the charge of manslaughter, but also in relation to the charge of murder. I must say that I have considerable doubt that the scope of s 191 was ever intended to extend beyond permitting the parties to act upon an agreement as to what facts and circumstances had existed and/or what events had occurred. I doubt that it was ever intended to permit a situation to arise in which a person accused of homicide would become bound by a prior agreement not to dispute subjunctive propositions, such as what he or she might have known or understood if sober. However, I was unaware of any binding authority on this issue and could not wholly discount the possibility that, if the Crown were permitted to rely upon the disputed passage, the accused might have to face a charge of murder handicapped by an evidentiary onus arising from an agreement made with the Crown on the understanding that he was no longer at risk of being prosecuted for that offence. In that event, having regard to the High Court's decision in Maxwell, it would obviously have been inappropriate to grant leave unless there was a clear cut means of protecting the accused from unfair prejudice arising in that manner. On the other hand, it seemed to me that any condition preventing the Crown from relying upon the disputed passage would have to apply to the trial as a whole and if, as a consequence, the Crown lost some advantage it might otherwise have enjoyed in seeking to prove the alternative allegation of manslaughter, then that was a price it might have to pay for the leave it sought.

29. Whilst it is clear that, in addressing an issue of this nature, one must seek to find the course that would best serve the interests of justice, the relevant discretion must be exercised in the context of the particular circumstances that arise for consideration in the case in question. There may be no wholly satisfactory course. It will not always be possible to wind back the clock and substantially restore the parties to the positions they would have enjoyed had the plea to a lesser charge not been accepted, and there may well be cases in which there is no obvious reason to attempt to do so. The best that one may be able to do is to consider the circumstances which led to the making of the application, explore the potential implications for both parties and, if it appears that the accused could be protected from unfair prejudice by procedural and evidentiary rulings, make a judgment as to what would best serve the interests of justice.

30. In the present case, after considering all of the competing considerations I was able to identify, I finally concluded that the director should be granted leave to withdraw the acceptance of the plea, but only subject to the following conditions:

(i) that the Crown not adduce any evidence of admissions allegedly made by the accused following the Crown's initial acceptance of the plea of guilty; and

(ii) that the Crown not adduce any evidence of, or otherwise seek to rely upon, the disputed passage in the further statement of facts orally communicated to the Court during the sentencing proceedings.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 1 December 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: 25 November 2005

Date of judgment: 1 December 2005