Court of Appeal (WA)|2002-08-30|Before: Malcolm CJ

Attorney General's reference under s 693a of the Criminal Code [2002] WASCA 242 (30 August 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : Attorney General's reference under s 693A of the Criminal Code [2002] WASCA 242

MATTER : Attorney General's reference under s 693A of the Criminal Code

Criminal law and procedure - Plea of guilty entered to unlawful wounding as an alternative to unlawfully attempting to kill - Plea accepted by trial Judge although prosecution declined to accept in satisfaction of the indictment - Consideration of lesser offence recorded - Whether trial Judge should act on the plea where it is unnecessary to ensure fairness to the accused or prevent an abuse of process

1 JUDGMENT OF THE COURT: On 5 February 2002, Canh Dai Nguyen was arraigned, with thirteen others, on an indictment alleging that he unlawfully attempted to kill Leo Nguyen Le, and alternatively that, with intent to do Leo Nguyen Le some grievous bodily harm, he unlawfully wounded Leo Nguyen Le.

2 The accused pleaded guilty to the alternative count of unlawful wounding with intent to do grievous bodily harm. Although the prosecution declined to accept the accused's plea in satisfaction of the indictment, the trial Judge recorded a conviction and sentenced the accused for that offence.

3 The prosecution does not seek to proceed further against the accused on the indictment, but continues to maintain that the trial Judge should not have convicted the accused on the alternative count when the prosecution declined to accept his plea of guilty to that count in satisfaction of the indictment.

4 The following question has been referred to this Court under s 693A of the Criminal Code:

"Where an indictment contains two or more counts expressly pleaded in the alternative to one another, should the Court act on a plea of guilty by the accused to an alternative count and preclude the Crown from proceeding to trial on the other count or counts in circumstances where the Crown does not accept the plea of guilty to the alternative count in satisfaction of the indictment and it is unnecessary for the Court to do so to ensure fairness to the accused or to prevent an abuse of the Court's processes?"

5 The course taken by the trial Judge was founded upon his Honour's unexplained conclusion that he was obliged to accept the accused's plea of guilty to the alternative count in the indictment. In the circumstances, that conclusion was incorrect.

6 As was recognised in the joint judgment of Dawson and McHugh JJ in Maxwell v The Queen (1995) 184 CLR 501 at 501 - 511, an accused is entitled to plead guilty to an offence with which he or she is charged and there might be circumstances in which a trial Judge must act upon that plea. However, there is no general principle that requires a trial Judge to act upon a plea of guilty by an accused in all circumstances.

7 Although the question referred was differently formulated, the subject matter of the present reference was considered by the Queensland Court of Appeal in R v Collins; ex parte Attorney General (1996) 1 Qd R 631. It is sufficient for present purposes to refer to a passage from the joint judgment of McPherson JA and Lee J. In Collins, the trial Judge had committed a similar error to the trial Judge in this matter, although for a different reason. As noted, the trial Judge on this occasion considered that he was obliged to accept the accused's guilty plea to the alternative count in the indictment. In Collins, the trial Judge erroneously considered that the accused had been convicted by his plea alone. At page 639 of the joint judgment, McPherson JA and Lee J said:

"It is no part of the trial judge's function to involve himself in the preferment or prosecution of criminal charges. The wide range of considerations involved in the exercise of discretions of that kind, some of which are not properly the subject of judicial scrutiny, persuade us that it is essentially an executive and not a judicial function. Save to ensure fairness to the accused or to prevent an abuse of the court's processes, matters of that kind should generally be left to the discretion of the prosecuting authorities. While we do not say that there may never be a case in which the courts may examine or possibly even interfere with the exercise of that discretion, the frequency of such occasions must, by necessity, be extremely rare in nature. Trial judges should exercise extreme caution in ensuring that they do not exceed the legitimate bounds of their judicial office ..."

8 The joint judgment then went on to examine the alternative courses available "when the Crown indicates that it will not accept the accused's plea to an alternate or lesser charge in full discharge of the indictment presented ...". Both courses involve the accused's trial on the other counts in the indictment and the jury's verdict on those counts.

9 At least so far as presently material, Maxwell is entirely consistent with Collins. In Maxwell, the prosecution elected to accept a plea of guilty to an alternative charge of manslaughter by an accused who had been charged with murder. At page 511, Dawson and McHugh JJ said:

"Of course, had the prosecutor elected not to accept the plea of guilty of manslaughter, the trial of the accused for murder would have proceeded."

10 Gaudron and Gummow JJ, in their joint judgment, said at p 534:

"It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute .., to enter a nolle prosequi .., to proceed ex officio .., whether or not to present evidence .. and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted .. . The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what .. .

A decision by a prosecutor to accept a plea to a lesser charge .. is a decision not to proceed, or, more precisely, not to present evidence on the more serious charge in the indictment and, at the same time, a decision as to the charge which is to proceed. It is insusceptible of judicial review. Subject to two qualifications, judicial review is precisely what is involved in a court's rejection of a plea which has been accepted .. ."

11 The qualifications, which were discussed by their Honours at page 535 are primarily concerned with a court's power to prevent abuse of its process and the protection of the accused if a guilty plea does not amount to a confession of guilt, or for some other reason there is reason to think that the accused is not guilty of the offence to which the plea has been offered.

12 The considerations referred to by Gaudron and Gummow JJ in Maxwell require a conclusion that, subject again to appropriate qualifications, it is impermissible for a court to review and overrule a prosecution decision to reject a guilty plea to a lesser charge when counts are joined in an indictment.

13 In summary, it was for the prosecutor, not the trial Judge, to determine whether the accused's plea of guilty to the alternative count should be accepted or rejected and the trial Judge was neither obliged nor entitled to act on the basis of that plea when it had been rejected by the prosecutor.

14 The question referred should be answered in the negative.

Attorney General's reference under s 693a of the Criminal Code [2002] WASCA 242 (30 August 2002)

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Judgment (23 paragraphs)

Attorney General's reference under s 693a of the Criminal Code [2002] WASCA 242 (30 August 2002)

Cases Cited (2)