The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered . But otherwise an accused may insist upon pleading guilty."
45 These principles surrounding acceptance or rejection of a plea of guilty, apply in the Local Court under s.193(2) Criminal Procedure Act 1986. It has been said that, where the accused person's version of the facts is inconsistent with the plea of guilty, the court should give the defence an opportunity to withdraw the plea and, if that does not occur and the accused person insists upon pleading guilty, the court should ignore the accused person's version: R v Martin (1904) 4 SR(NSW) 720; Marlow v R [1990] 1 Tas SR 1; Blazevski v Judges of the District Court (NSW Court of Appeal, 10 November 1992, BC9101492) (1992) 62 ALD 197 at 208-209, 212-213.
46 Where a Magistrate determines under s.193(2) not to accept the accused person's guilty plea on the first return date, a plea of not guilty ought be entered and the court must set the date, time and place for the hearing and determination of the matter: s.190(1) Criminal Procedure Act 1986.
47 It will be apparent that none of these statutory or common law principles were applied by the Second Defendant in the present case. Both the transcript of the proceedings and the record of the Local Court disclose a plea of guilty being entered which, although criticised by her Honour, was not rejected or withdrawn by leave. By that plea, the First Defendant admitted the essential elements of the offence, including negligence. Yet the Second Defendant dismissed the charge. Clear error of law is revealed in these circumstances.
48 If the view is taken that her Honour, without recording such an order, rejected the plea of guilty, a further question arises. Her Honour took the view that the Statement of Facts and the statement of Mr Lade did not disclose negligence. Reference was made to the doctrine of res ipsa loquitur having no application.
49 Her Honour's earlier exchange with the prosecutor concerning the suggested lack of factual information in the material is difficult to understand given the contents of the Statement of Facts which I have summarised earlier in this judgment. If her Honour was to reach the point of considering the sufficiency of the evidence by reference to the element of negligence, then the question involved consideration of inferences available from the undisputed facts. There was a very clear inference available that the First Defendant had not acted in accordance with the standards of the ordinary prudent driver in that he failed to keep a proper lookout and failed to pay proper attention so that he did not see the oncoming bicycle (which had the right of way) with which he collided whilst doing a right-hand turn.
50 If the matter had proceeded to a defended hearing, arguments may have been advanced concerning the visibility of the bicycle, although I note that Mr Lade's statement recorded that he had reflective shoes, a front light mounted on his bike and a red flashing light on the rear and that the lights were working at the time of the collision. However, the Second Defendant had before her the admission of negligence conveyed by the plea of guilty, together with a very strong inference of negligence arising from the Statement of Facts.
51 In this Court, both counsel submitted that the Second Defendant concluded (although this was not stated expressly) that there was no prima facie case of negligence. In doing so, I am satisfied that a clear error of law was committed both by disregarding the plea of guilty, and failing to apply the appropriate legal test to reach the necessary conclusion by reference to inferences arising from the evidence placed before the Local Court.
52 Further, I am satisfied that the Second Defendant has failed to comply with statutory procedures in the Criminal Procedure Act 1986 and denied the prosecutor procedural fairness by declining to adjourn the proceedings.
53 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA, Cole AJA) observed at [64], in the context of a claim of denial of procedural fairness by a refusal to adjourn criminal proceedings:
"The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at ALR 343 'it is important to remember that the relevant duty of [the court] is to ensure that a party is given a reasonable opportunity to present his case'. In our opinion, the claimant was not given that reasonable opportunity."
54 In Blazevski v Judges of the District Court, Kirby P (as his Honour then was) said at 200:
"Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have been taken by the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused."
55 If the Second Defendant rejected the plea of guilty, the Court ought to have proceeded to set the date, time and place for the hearing and determination of the matter: s.190(1). Thereafter, a Magistrate would determine the matter after hearing the accused person, prosecutor, witnesses and evidence in accordance with s.202 Criminal Procedure Act 1986. That did not occur in this case. It is no answer to this conclusion to assert that the prosecutor had an opportunity to place before the Second Defendant on 23 January 2008 the Statement of Facts and the statement of Mr Lade.
56 Leaving aside, for the moment, the fact that a plea of guilty had been entered and that the evidence before the Local Court was supportive of the guilt of the First Defendant, if the matter was not to proceed to finality pursuant to the plea of guilty that day, the prosecutor was entitled to have the proceedings adjourned so that the witnesses could be called, and submissions made, in light of the evidence adduced at the hearing. In accordance with the principle referred to in Nitiva v Director of Public Prosecutions, the duty of the Court was to ensure that the prosecutor be given a reasonable opportunity to present the prosecution case. In my view, the Second Defendant deprived the prosecutor of such a reasonable opportunity in this case. To force the prosecutor to proceed on the first return date, in the circumstances of this case, gave rise to an injustice and denial of procedural fairness: Underhill v Murden (2007) 173 A Crim R 336 at 339 [11], 342 [25].
57 The course adopted by the Second Defendant did not afford a hearing according to law to the prosecutor in accordance with s.202 Criminal Procedure Act 1986. In Director of Public Prosecutions v Wunderwald, error of law was found where the presiding Magistrate (the same Magistrate as in this case) part way through the prosecution case, in effect determined that no further witnesses would assist the prosecution case and the hearing was brought to a peremptory conclusion. In the course of granting relief, Sully J said at [21]:
"Having regard to the sequence of events as I have described it, it is, I think, relevant to observe at once, and with all proper respect to her Worship, that it was not for her Worship, in effect, to take over herself the conduct of the prosecution case, and, in effect, peremptorily to close off the calling by the prosecutor of any evidence that the prosecutor considered to be potentially relevant to the making out of the charge. Her Worship's duty was to hear fairly, and to judge according to law, such evidence as either party to the proceedings before her Worship might wish to adduce."
58 Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R (2006) 162 A Crim R 88 at [138]-[140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.
59 Finally, I accept that error of law has been demonstrated by the failure of the Second Defendant to give reasons as required by law for dismissing the charge. In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, it was observed, at 408 [19], that one of the conventional functions of the requirement to give reasons relates to the appellate process. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the Bench and counsel during submissions to ascertain a Magistrate's reasons for determination.
60 It might be said that it is clear enough that the Second Defendant reached an immovable view that, despite the plea of guilty and the contents of the Statement of Facts and Mr Lade's statement, there was no evidence of negligence revealed. If, however, her Honour had determined to dismiss the charge, the law required the expression of reasons. Although this error is not decisive, it constitutes the final step in a series of errors which I am satisfied occurred in this case.