DPP v Collins [2004] VSCA 179

Court of Appeal (Vic)|2004-10-12|Before: WARREN, C.J., WINNEKE, P. and ORMISTON, J.A.

CRIMINAL LAW - Crown Appeal - "Trafficking" in amphetamines - 12 months - Appeal dismissed.

CRIMINAL LAW - Autrefois convict - Presentment alleging greater and lesser offences arising out of same circumstances - Whether accused's plea of guilty to lesser offence bars trial for greater offence.

Ms. Kay Robertson, Solicitor for Public Prosecutions

The circumstances and conduct of the proceeding below were unusual for the reasons explained by the learned President and which I have had the benefit of considering in draft form. Whilst the trial judge was in error in dealing with the respondent on count 3 there was no bar to the trial of the respondent on count 2. Further, there was no challenge by the respondent to the conviction on count 3. I agree with the reasons of the President that the appeal should be dismissed.

On 9 June 2004, the respondent Brett Andrew Collins ("the respondent") was presented in the County Court at Melbourne on three counts alleging:

(1) Possessing money which is the proceeds of crime (known as "money laundering") contrary to s.122 Confiscation Act 1997.

(2) Trafficking in a drug of dependence (methylamphetamine) on 10 October 2002, contrary to s.71AC of the Drugs Poisons & Controlled Substances Act 1981.

(3) Possessing a drug of dependence (methylamphetamine) on 10 October 2002, contrary to s.73(1)(c) of the Drugs Poisons & Controlled Substances Act 1981.

Upon application made prior to arraignment, the trial judge "stayed" the prosecution of count 1. This order was made on 9 June 2004, and the further proceedings adjourned until the following day.

On 10 June, the respondent was arraigned in the presence of the jury. He pleaded "not guilty" to the count of "trafficking" alleged in count 2, but "guilty" to the count of "possession" alleged in count 3. A jury was then empanelled, and the respondent put in their charge on count 2; that is the count to which he had pleaded "not guilty". The transcript of proceedings does not clearly reveal what occurred with respect to count 3; that is, the count of "possession" to which the respondent

had pleaded "guilty". (I will return to that matter hereafter.) Nevertheless, the Judge's Associate recorded the respective pleas on the Presentment, but - so far as the matters in issue in this appeal are concerned - nothing of any significance turns upon that[1].

In order to better understand the events which had occurred at the outset of the trial, and to put in perspective the arguments addressed to this Court on the Director's appeal, it is desirable to summarize the evidence which the Crown led at the trial.

The respondent at all material times lived in Wodonga where he was the proprietor of a tattoo and body piercing business. Early in the morning of 10 October 2002, police attended at his residential premises in Wodonga with a warrant. In the bedroom they located a safe in a wardrobe. It was opened; and inside police found 67.9 grams of 70% pure methylamphetamine; cash amounting to $18,350; a self-loading 9 mm pistol, with holster, 3 magazines and ammunition. In a shed at the rear of the garden there was a work bench with a false cavity inside. In that cavity, police found $29,850 cash. The evidence indicated that the amphetamine, if sold in bulk , would be worth some $12,000; and $79,000 if "cut" to "street level" traffickable proportions.

The prosecution had no other evidence of movement of the drugs by the respondent, but relied upon the above facts in inviting the jury to infer that the respondent was, on 10 October 2002, guilty of trafficking in the drug of dependence either in its "common law" meaning or in its extended statutory meaning of "possession for sale"[2]. The prosecution evidence thus comprised material from the police officers who searched the premises and found the items to which I have referred. Evidence was given that those items, and other parts of the premises, were photographed. The photographs were before the jury.

The respondent gave evidence and called evidence from one of his friends. The respondent's evidence was that he had come by the drugs and other articles found in the safe innocently; and that the money was the product of cash deals in car trading and from rented property. The drugs, guns and ammunition had been in his safe for 15 months and had belonged to a deceased friend from whose premises he had removed the drugs to save the friend's mother and children from embarrassment. One other witness was called to confirm the thrust of the respondent's evidence.

On 15 June 2004, the jury convicted the respondent of the trafficking alleged in count 2. A plea was made on his behalf on 18 June 2004, during the course of which evidence was called from the respondent's father, from one Monique Turtell (a senior employee in the respondent's business), and from a friend of the respondent and his wife. Counsel for the respondent made it clear to the judge that he was not objecting to the making of an order for confiscating the drugs and the firearms, and indicated that he would desire that his Honour deal with the respondent - in addition to the count on which he had been convicted - for summary fire-arm offences with which the respondent had been charged arising out of the same facts. His Honour agreed to do this in accordance with s.359AA Crimes Act 1958. However, his Honour declined to accede to the Crown's application for forfeiture of the moneys found at the premises on the basis that the Crown could not satisfy him to the relevant standard that those moneys were "tainted property".

His Honour sentenced the respondent on 18 June 2004. He concluded that it was reasonably clear that the respondent was not trafficking at "street level", but he rejected the respondent's evidence (consistently with the jury's verdict) that he had come into the possession of the drugs fortuitously; and concluded that he was involved in distribution commercially, but could "say no more than that". He took the view that the respondent's previous convictions were not "of great significance"; and accepted the evidence given on plea that the respondent was a good father and family man and a contributor to his local community. However, as his Honour pointed out, trafficking in drugs was "destructive of the community"; so that the respondent was "helping" that community on the one hand, yet "destroying it with the other". The respondent's motivation for involving himself was, in his Honour's view, greed. His Honour said that he intended to set an actual period of imprisonment to be served immediately, but that it would be moderated because of the fine which he intended to impose. Ultimately he imposed a sentence of 12 months' imprisonment, a fine of $10,000 and directed that 8 months of the prison sentence be suspended for a period of three years. In respect of the charge on count 3, his Honour said:

"Count 3 is adjourned without conviction for a period of 12 months. It is necessary that you enter into a formal bond. It was really difficult for me to dispose of that charge in any other way. It will not be necessary for you to appear on the return date unless you are called upon to do so. I will have you sign that bond in a few moments."

"I ask you to sign this bond in relation to count 3. It is, I hope, only a formality, but it is the only way in which I can dispose of the matter without recording a conviction."

The Director has appealed against the sentence imposed on count 2 on the grounds that it is manifestly inadequate. The particulars of such inadequacy recite the failure of the sentence to reflect the gravity of the offence; the failure to take proper account of the need for general deterrence; giving too much weight to factors of mitigation and the failure to denounce the respondent's behaviour which the judge had described as involvement "at a higher level in the commercial activity of trading in amphetamines" to generate money for himself.

Mr. Holdenson, who appeared for the respondent on the appeal, adopted what seemed to me to be a somewhat unusual course. He made a preliminary submission calculated to "undercut" the Crown's appeal by contending that the verdict recorded by the jury on count 2 was a nullity because the respondent had already been convicted of the lesser offence of "possession" alleged in count 3, which depended for its proof upon the possession of the very same quantity of drug as underpinned the "deemed" trafficking which was the subject of count 2. The consequence for which he contended flowed, it was submitted, from the respondent's plea of guilty to count 3, and the judge's completion of the conviction on that count by his Honour's inferred remand of his client for sentence on the count. Mr. Holdenson relied upon the authorities of R. v. Weeding[3], Reardon v. Baker[4] and R. v. Glaister[5] for his proposition that the trial on count 2 was accordingly "barred" by the prior conviction on count 3, and that the Director was - accordingly - disentitled from appealing against the sentence imposed on count 2.

In Weeding's case the accused had been presented for trial on five counts involving injurious assaults on two female victims, K. & L. Counts 4 and 5 alleged, respectively, "unlawfully and maliciously causing grievous bodily harm to L. with intent to do grievous bodily harm"; and "assault on L. occasioning actual bodily harm". Both counts were left to the jury which convicted on each. These charges arose from the same assault on L.; and the trial judge stated a case for the opinion of the Full Court, asking (inter alia):

"As to counts ... 4 and 5,was my conviction on both counts correct?"

At page 301, the Court (Herring, C.J., O'Bryan and Dean, JJ.) expressed the view that the test for the application of the doctrine of autrefois convict "is not simply whether the facts relied upon are the same, but whether the accused has been convicted of an offence which is the same or practically the same as that with which he is secondly charged." (my emphasis). The Court added:

"We are not prepared to say that the offence under s.17 of causing grievous bodily harm with the necessary intent imports an assault ... . But, in this particular case, assault was the basis of the charge against the accused and ... it would be contrary to the principle of the common law and very unfair to the accused to have recorded against him a verdict of guilty in respect of the same assault both for assault occasioning actual bodily harm and for unlawfully and maliciously causing grievous bodily harm ... ."

The Court went on to conclude that the fact that it was convenient to try the accused on a multi-count presentment should not be allowed to operate to his prejudice; and that whether he was tried on separate presentments or one, the result should be the same. The Court concluded (at 305):

"... in all cases in which two counts are charged in a presentment, if conviction on one count would afford the accused a plea in bar of further proceedings on the other, and if the jury returns against the accused a verdict of guilty of the major offence, the trial judge should discharge the jury from returning a verdict on the lesser crime. Otherwise the accused would be put at a disadvantage by being tried on the one presentment with the two counts instead of separate presentments." [6]

These principles were applied by J.H. Phillips, J. in Reardon v. Baker[7]. That was a case where the accused had been tried in the Magistrates' Court on counts of "trafficking" in heroin contrary to s.71 of the Drugs Poisons & Controlled Substances Act 1981; and possession of heroin contrary to s.73 of the Act. As in the instant case, the charge of "trafficking" was based on the very same quantity of drugs which had been found in the accused's possession. The informations for the two offences had been heard together, and the Magistrate had convicted the accused. The "trafficking" conviction was founded upon the extended definition of "trafficking"; namely "possession for sale". The question was whether the principles stated in Weeding applied to summary proceedings in the Magistrates' Court. J.H Phillips, J. said (at pp. 898-9):

"Plainly enough, possession for sale of heroin at Pascoe Vale on 24 January 1984 was the essential basis of the charge of trafficking against the applicant ... . I have come to conclude, therefore, that a conviction for possession of the same drug and on the same date is offensive to the common law principle. In the circumstances of the conviction for trafficking having been confirmed in this court, the conviction of the applicant for possession of a drug of dependence contrary to s.72(1) [sic] of the Act is quashed, and the sentence of one month's imprisonment imposed upon her for that offence is set aside."

Similar views to those expressed by J.H Phillips, J. were expressed by this Court in R. v. Glaister[8]; but in respect of "trafficking by manufacture". In my own judgment in Glaister (at 166), I was at pains to point out that the "trafficking" alleged was found by the judge to be based on the possession by the applicant of a quantity of pure amphetamine which had been found at the applicant's premises and which was in

his possession for the purposes of sale. Accordingly, it was able to be said that both convictions derived from the same set of facts so as to make it unfair to the applicant to "have imposed upon him an additional penalty in respect of the possession count when, on any view, the possession arose solely as a consequence of the trafficking alleged in count 1"[9]. In that case it was neither submitted to, nor suggested by the Court, that the conviction on the lesser count should be quashed.

As I have said, Mr. Holdenson relied upon these authorities to support his proposition that the respondent, having been "convicted" on count 3 ("possession"), could not lawfully be convicted on count 2. It is a submission which, as I have noted, is a somewhat curious one to make in opposition to a Crown appeal against the sentence imposed on count 2, when no application has been made to challenge that conviction. When asked about this, his response to the Court was, as I understood it, that such a challenge would "bear no fruit" for the respondent because it would result in a re-trial of count 2 leaving the respondent at risk of a higher sentence If I am right in understanding that this was his submission, I have some difficulty in comprehending it, because the primary submission was that the "conviction" on count 3 would entitle the respondent to plead in bar to any subsequent prosecution on count 2. In any event, it seems to me that this type of collateral attack on the jury's verdict on count 2 is an inappropriate method of challenging the Crown appeal upon the sentence or that count. So long as the conviction and sentence remain, it seems to me that the Crown is entitled to challenge the adequacy of the sentence.

It may well be that, in given circumstances, a conviction on a lesser offence will create a bar to subsequent prosecution on a more serious offence. This will occur where the subsequent and more serious offence amounts to an aggravated form of the earlier offence, but relies for its proof on the same evidential facts. That result is to be implied from the decision in Weeding (supra). It is consistent with the views expressed by Dawson, J. in Saraswati v. R.[10], and also with those expressed by Gleeson, C.J. in R. v. Dodd & Dodd[11]. It may be open to be contended that the statutory form of "trafficking" (namely "possession for sale") was simply an aggravated form of the offence of "possession" and relied for its proof upon the same facts. But that will not assist the respondent in this case unless it can be demonstrated that the conviction on count 3 was recorded before the conviction on count 2.

Was the respondent entitled to a plea in bar on count 2

The question thus arises whether such conviction as was imposed upon count 3 preceded the conviction recorded upon count 2 so as to be capable of operating as a bar to the conviction on the latter count. Mr. Holdenson submitted that the respondent was "convicted " at the "commencement" of the trial because the judge had accepted his plea of "guilty" and "adjourned" the matter for sentence. If, however, this is the true interpretation of the events which occurred at trial, it apparently went unappreciated by the judge, and experienced prosecutor and defence counsel, because - as I have already noted - the respondent was put in charge of the jury on count 2, and the trial proceeded for some 2-3 days.

In order that the respondent's arguments can be appreciated, it is necessary to further refer to the events at trial[12]. In the course of opening the Crown case on count 2, the prosecutor told the jury that the Crown case on that count would depend upon the jury's satisfaction (founded upon inference based on the items found in the house) that the respondent possessed the amphetamine for sale. In the course of outlining these matters, the prosecutor said:

"There is another significant factor in this case because you have heard the accused man plead guilty to the count of possession of methylamphetamine ... . Now that is a formal admission that he makes in your presence. It is still incumbent upon you, because he's in your charge, to come back with a verdict on that ... count too, but you can accept that, as a matter of law, ... a plea of guilty is a complete and utter admission of all ... the facts and ... law necessary to prove that offence."

"The jury does not have to return a verdict on that count."

Following the prosecutor's opening the judge told the jury that the issue to be determined by them was:

"Whether you are satisfied beyond reasonable doubt that the accused had this drug in his possession for the purpose of sale, which is the form of trafficking alleged in this case."

In further discussion between judge and counsel before any evidence was led, the following exchange occurred:

Defence counsel: "... There is only one other matter that we desire to raise ..., it's in relation to what [the prosecutor] said in relation to verdicts."

Defence counsel: "Verdicts, and in relation to possession."

H.H.: "I thought I had corrected him in running on that."

Defence counsel: "Your Honour did take it part of the way with respect. If for example there was a not guilty verdict in relation to traffick, then of course there would have to be a verdict, as we perceive it, in relation to the possession."

Defence counsel: "Well, the way it was put, as I understand it, [the prosecutor] indicated that there was a situation where there would have to be a verdict, and your Honour then challenged him about that ..."

H.H.: "The verdict will be guilty or not guilty on the charge of trafficking. The jury won't have to return any verdict on the count of possession,"

Defence counsel: "So long as that is clear, your Honour."

Thereafter, the evidence was called on 10, 11 June 2004 and counsel addressed on that date. His Honour then adjourned the proceedings to 15 June when he charged the jury. The only reference in the charge to count 3 was a reference to the fact that the respondent had pleaded guilty to it in the jury's presence, and that the jury could use that as an admission that he was "in possession" of the drugs on 10 October 2002, which was an element of the offence of trafficking. In any event, on 15 June, the jury convicted the respondent on count 2, and he was remanded on bail for sentencing on 18 June. In the course of the plea hearing, the respondent's counsel asked the judge:

"... in relation to the count ... to which there was a plea of guilty ... as to where it's at now ...".

His Honour said he would ask the prosecutor. The following exchange occurred:

H.H.: "What are you going to do about that, Mr. [Prosecutor]?"

Prosecutor: "He's made an admission to that, but I'd ask your Honour not to enter a verdict in relation to that because the substantive offence is the trafficking, and that's just an alternative count really ..."

H.H.: "There's a section of the Sentencing Act under which I can dismiss it."

Prosecutor: "Yes, you can . With respect, its not necessary to do that because there is no verdict taken in relation to it, ... he simply made an admission ..."

Prosecutor: "He did. He did - but - and your Honour must've interrupted me when I was addressing the jury, because I always had the view that, even if a person pleaded guilty before the jury, they were in the jury's charge, and the jury has to return the verdict in relation to it even though they pleaded guilty; but no verdict has been taken now in relation to that, and we don't ask for a verdict to be taken because he has been found guilty of that count [semble, count 2] and that was the primary count; the possession would have been an alternative and we don't seek a verdict on that; its covered by the count of trafficking, and I'd ask your Honour not to dismiss that matter because I don't know what's going to happen in the future; if there were an appeal for example, and there was a re-trial of this matter, then the Crown would want to again have the possession count on the presentment, have them both there, and so therefore I would ask your Honour not to - enter a verdict of not guilty on the record ..."

H.H.: "No. What I was suggesting was that it be dismissed, but I can understand why you might not want that to happen ... I am not sure what else I can do with it at the moment."

Defence counsel: "I don't quite know what the Crown urge your Honour to do with regard to that."

H.H.: "Possibly I could adjourn it for a period which would - "

H.H.: "Outside the appeal period. And then without him having again to attend - there will be no further order. It will still be on his criminal history but as a matter that did not result in the imposition of any penalties ..."

The discussions between the Judge and counsel, to which I have referred in paragraphs [18]-[19] suggest that counsel were of the view that the count of "possession" should have been before the jury; and that the jury should either return a verdict on that count, or be discharged from doing so, depending upon the verdict they returned on count 2. The judge, however, took a different view; namely that the respondent was not in the jury's charge on count 3; and no verdict needed to be taken from them on that count. In the events that happened (namely the jury's verdict of "guilty" on the more serious charge alleged in count 2), a problem arose because the judge believed that he was obliged to give effect to the respondent's plea on count 3 by imposing a sentence in order to "clear the Presentment". That much seems clear from the judge's remark to the respondent (to which reference has been made in [10]):

"It was really difficult for me to dispose of that charge in any other way."[13]

The problem which arose resulted from a departure from the rules of criminal practice and procedure in circumstances where the accused had pleaded "not guilty" to the more serious offence, but "guilty" to the lesser offence. The seeds of the problem would seem to have their source in the different practices which are followed in England and some States of Australia (to which I will refer hereafter); but on any view it was not appropriate - once the jury had convicted the respondent on the more serious charge alleged in count 2 - to proceed to "deal with him" on the lesser offence charged in count 3 [14]. Notwithstanding that his Honour had released the respondent on a "non-conviction" bond, it is arguable that the court had made a final determination of guilt on that count by proceeding to judgment[15]. However, even if it is accepted that the judge, by dealing with the respondent in this way, had "determined his guilt", that determination did not, and could not, afford to the respondent a plea of autrefois convict to the charge on count 2 because the conviction on that count preceded any determination of guilt on count 3. Similar circumstances to those raised in this appeal arose in R. v. Tonks & Goss (supra) where the accused had pleaded not guilty to robbery but guilty, respectively, to receiving and larceny. The Crown, not being prepared to accept the pleas to the lesser offences, proceeded on the count of robbery; and the jury convicted both accused of that offence. Questions were reserved by the judge for the consideration of the Full Court as to the impact of the "guilty pleas" upon the capacity of the judge to impose sentences for the robbery count. The Full Court posed the problem in this way (at 123):

"Does then a plea of guilty by Tonks to receiving, or a similar plea by Goss to larceny ... constitute in either case, without more, some impediment in the way of putting the accused in charge of a jury on the count of robbery, and his being found guilty thereon?"

The only impediment suggested was autrefois convict. After reviewing the authorities the court concluded that the pleas of guilty could not give rise to such an impediment because a plea of guilty, of itself, did not constitute a conviction. Their Honours said (at 127-8):

"In our opinion [a plea of guilty] amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court, or the arm of the court charged with deciding the guilt of the accused ...; but there must be at least a determination of guilt before there can be a conviction. There can, accordingly, be no conviction on a count to which an accused pleads guilty until by some act on the part of the court, it has indicated a determination on the question of guilt. And if there can be no conviction till then, neither can there be a successful plea of autrefois convict."

These principles were endorsed by Dawson and McHugh, JJ. in Maxwell v. R.[16]. Their Honours[17] said (at 509):

"A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. It is difficult to envisage when either of those courses would constitute a final determination and so amount to a conviction ..."

Their Honours also referred to the recent decision of the Privy Council in Richards v. The Queen[18] where their Lordships had observed that the underlying rationale of autrefois convict is to prevent double punishment and that for the doctrine to have any application, finality of adjudication is essential. Indeed their Lordships said (at 226-7):

"The need for finality of adjudication by the court whose decision is relied on to found a plea of autrefis convict is even more clearly apparent where the defendant has pleaded guilty. Not only may the defendant be permitted ... to change that plea at any time before sentence, but where a plea of guilty to a lesser offence than that charged has initially been accepted by the prosecutor with the approval of the court, there can ... be no finality in that `acceptance' until sentence is passed." [19]

So, in this case, it seems to me that the judge, in putting the jury in charge of the prisoner solely on count 2, was doing no more than provisionally putting count 3 to one side to abide the outcome of the trial on count 2. Even if he was intending, at that time, to deal with the respondent on count 3, he had made no determination of guilt.

It necessarily follows, in my view, that - although the judge was wrong to proceed to impose a punishment on count 3 (possession) - the fact that he had done so did not impact upon, nor render a nullity, the verdict of guilty (and, thus, the conviction) which had already been recorded on count 2.

Appropriate Procedure where accused pleads guilty to lesser offence

As previously noted, it seems to me that the problem which the judge created for himself arose from the procedure adopted at the outset of the trial. When, after arraignment, the prosecutor was not prepared to accept the plea to the lesser offence in satisfaction of the whole presentment, the judge removed the charge on count 3 from the jury's consideration, and the trial proceeded solely on count 2. In adopting this procedure, the judge appeared to be departing from the practice suggested by the Full Court in R. v. Broadbent[20] where Sir Norman O'Bryan, speaking for the Court, said:

"Where a man is charged with two offences arising out of the same set of facts, one of a more serious nature than the other, and the two offences are charged in the alternative [in that case it was rape and carnal knowledge], if the prisoner pleads not guilty to the more serious charge, but guilty to the lesser offence, the Crown may or may not decide to proceed with the more serious offence. If it does so, it generally says words to this effect: `The Crown does not accept his plea of guilty.' In that case the court should not record a conviction of guilty of the lesser offence. The result of so doing might be to afford the accused of a defence of autrefois convict of the major charge. The most convenient way to deal with the matter is to allow the whole trial to go forward, that is, the trial on both counts. The jury can be told, whether the prisoner does or does not withdraw his plea of guilty to the lesser offence, that having heard him say in effect in open court that he is guilty of the lesser offence, they can use that admission against him when considering what the proper verdict should be. That is, if they find him guilty of the more grave charge, there is no necessity for them to consider the lesser charge, but if they find him not guilty of the more grave charge, they may, in considering his guilt of the lesser charge, take into account his plea of guilty. If the court does otherwise and withdraws the lesser charge from the jury and proceeds only with the major offence, it might be supposed that the court had in some way accepted the plea of guilty, and so afforded the accused an answer by way of autrefois convict to the major charge."

So far as this Court is aware, the practice and procedure identified by the Full Court in Broadbent remains the appropriate procedure in this State[21]. Sir Norman O'Bryan's remarks to the effect that the Court should not record "a conviction of guilty of the lesser offence", upon the plea of guilty, would seem to me to have been made ex majore cautela, and possibly influenced by the decision of the Court, in the preceding year, in R. v. Tonks & Goss (supra). In removing count 3 from the jury's consideration in this case and putting it to one side, it does not seem to me that his Honour was - for the reasons which I have identified - courting the risk of a successful plea in bar to the charge alleged in count 2. Indeed the practice in England has been, at least since R. v. Cole (supra) in 1965, to remove from the consideration of the jury a charge of a lesser offence to which the accused had pleaded guilty. In that case the accused had been charged with conspiracy to rob Barclay's Bank, armed robbery and receiving some of the moneys stolen. The accused pleaded not guilty to the first two counts, but guilty to the third count (receiving). Ultimately the accused was convicted of armed robbery. On appeal, it was contended on behalf of the accused that, once the plea of guilty to receiving had been recorded, it ranked as a conviction and the accused could not be tried on the armed robbery count to which "receiving" was an alternative. Lord Parker, C.J., speaking on behalf of the Court of Criminal Appeal, rejected the contention. His Lordship said:

"It is clear that it [that is the conviction for `receiving'] does not occur at the time of the recording [of the plea] because otherwise it would be impossible for a judge to allow a plea to be changed, as is perfectly possible up to sentence ... . In the judgment of the court it only ranks as a conviction when the defendant is sentenced."

His Lordship noted that the court had been invited to specify what was the proper practice in cases where the accused had pleaded not guilty to the more serious offence or offences, but guilty to the lesser offence. He said (at 394-5):

"It is merely sufficient to say that in the ordinary case, a judge should allow the plea of guilty to stand. In those circumstances a defendant will only be put in charge of the jury on the serious charge, in this case the armed robbery. If he is acquitted of the armed robbery, then he can be sentenced on the count to which he has pleaded guilty. If, on the other hand, he is convicted of the armed robbery then the proper course for the judge is to allow the count to which he has pleaded guilty to remain on the file and not to proceed to sentence him."

This practice has been endorsed in England in other cases. It applies, however, only to indictments containing multiple counts and where the prisoner pleads "not guilty" to the count alleging a more serious offence but guilty to a separate count alleging a less serious offence[22]. It is apparent from the reasoning of the courts in each of these cases that the plea of guilty to the lesser charge cannot preclude the jury from determining the guilt of the accused on the more serious charge in circumstances where the Crown is not prepared to accept the plea of guilty to the lesser offence in satisfaction of the indictment. The reasoning proceeds on the basis that before the plea of guilty to the lesser charge can mature into a conviction, so as to bar the trial on the more serious charge, there must be an unequivocal acceptance of the plea by the court; and that such a plea will only mature into a conviction by sentence.

In this case, the judge did not follow the practice laid down in Broadbent (supra), nor that laid down in Cole (supra). The prosecutor was correct to assert that, once the respondent had been convicted on count 2, no further action was necessary in respect of count 3. However, the fact that his Honour proceeded to deal with the respondent on count 3 cannot, for the reasons which I have already given, lead to the conclusion that the respondent had been "convicted" on count 3 either at the time when he pleaded to count 2, or at the time when the jury convicted him on that count. At neither of those times had there been any unequivocal acceptance by the court of the plea of guilty to count 3. There was, therefore, no bar to the respondent's conviction on count 2. The conviction on that count is not a "nullity" as Mr. Holdenson contends; nor is there any reason why the Crown cannot appeal against the sentence which his Honour imposed in respect of it.

It is not clear to me, from such researches as I have been able to make, whether judges in this State follow the procedure outlined in Broadbent or the procedure followed in England where an accused person pleads not guilty to a more serious charge, but guilty to a lesser offence charged in a separate count on the same presentment. So far as I am aware, the practice outlined in Broadbent has not been criticized by any later judgment of the Court of Criminal Appeal in this State, nor by any judgment of this Court. I can see no good reason why it should not continue to be followed. It is a practice which will probably be of more relevance to County Court judges who frequently encounter presentments containing multiple counts some of which are lesser offences to more serious charges alleged in the same presentment. I note that the very experienced Editor (the former Judge Mullaly, Q.C.) of Victorian Trial Manual, Vol.2, para 15.602 endorses the practice approved by Broadbent; namely that:

"... the trial proceeds on all counts, and the jury may act on the guilty plea so far as it relates to any count on the presentment."

It seems to me, if I might say so, a very efficient method of clearing the presentment, and more likely to eliminate the type of problem which arose in this case. Nevertheless, for the sake of completeness, I should mention that it appears that, in South Australia, the English practice established in R. v. Cole (supra) is recommended[23]. On the other hand, it would seem that the practice suggested in Broadbent is preferred in Queensland. In R. v. Nigel Collins[24], McPherson, J.A. and Lee, J., having referred to the practice followed in England and South Australia, on the one hand, and the practice identified in Broadbent, said that they regarded the latter as "the more sensible" because it seemed:

"consistent with the policy behind the initial joinder that the jury should have before it and be able to adjudicate upon all matters relevant to the case, bearing in mind always its entitlement to use the accused's admission and attach such weight to it as it thinks fit.

Fitzgerald, P., who agreed with McPherson, J.A. and Lee. J., said (at 206) that whilst he was "disinclined to state a general rule [of practice]", he did not "dissent from the proposition that it will often be preferable to take the jury's verdict on all charges". It seems to me that, in the circumstances which existed in this case, it is preferable that the practice stated in Broadbent should be followed, and that the judge allow the trial to proceed on the whole presentment, whether or not the accused adheres to or seeks to change his plea to the lesser count.

What I have said so far, although a lengthy preamble to a consideration of the matters in issue on this appeal, demonstrates my view that there is no impediment to the Crown's appeal against what it contends to be the manifest inadequacy of the sentence on count 2.

The appeal is brought solely on the basis that the sentence imposed on that count (namely 12 months, suspended as to 8 months, together with a fine of $10,000) is manifestly inadequate. It must be remembered that the "trafficking" alleged was confined to the one day; namely 10 October 2002. It depended, for its proof, upon the fact that the drugs, which were found in the respondent's possession on that day, were in his possession "for sale". In that sense, the judge was bound to deal with the respondent on the basis that any trafficking in the relatively small quantity of drugs found in his possession, had been "nipped in the bud". Thus, there had been

no impact upon the community as a consequence of the "trafficking" alleged and proven. Although, in my view, the penalty imposed was low, it cannot be said, having regard to the principles of "double jeopardy" which this Court must take into account on an appeal of this nature[25], to be so low as to warrant interference by this Court on a Director's appeal pursuant to s.567A of the Crimes Act. I would, accordingly, dismiss the appeal.

I agree with the judgment of the President and further with his observations as to the correct procedure to be adopted by trial judges when an accused seeks to plead guilty to an alternative or included offence, whether or not appearing on the presentment. I would add that I do not believe that any of the references to R. v. Cole[26] in the judgments of two members of the majority and the dissenting judge in Maxwell v. The Queen[27] reflects approval of the practice adopted in England and described in the former case. If, in the exercise of the prosecutor's discretion described in Maxwell, the plea of guilty is not accepted in satisfaction of the presentment, then the prosecution is electing to lead evidence on the more serious count and necessarily on any other relevant alternative or included charges.[28]

[1] R. v. Hodgkinson [1954] VicLawRp 23; [1954] V.L.R. 140; R. v. Tonks & Goss [1963] VicRp 19; [1963] V.R. 121.

[2] S.70(1) of the Drugs Poisons & Controlled Substances Act 1981.

[6] See also R. v. Tonks & Goss, supra at 123.

[8] (1997) 92 A.Crim.R.161, at 164-5 per Hedigan, A.J.A.

[11] (1991) 56 A.Crim.R. 451 at 453-6; Court of Appeal (NSW). See also R. v. Worland [1964] VicRp 75; [1964] V.R. 607 at 609, per Monahan, J.. Monahan, J. applied the principles expressed in R. v. Miles (1890) 24 Q.B.D. 423 at 431 per Hawkins, J., which, in turn, were relied upon by the Full Court in Weeding (supra at 301-2). The principles derive from those applied in R. v. Elrington [1861] EngR 901; (1861) 1 B.& S. 688 at 696 per Cockburn, C.J.; see also Connelly v. D.P.P. [1964] A.C. 1254 at 1315 ff. per Lord Morris of Borth-y-Gest.

[12] The Court did not have, on the hearing of the appeal, the transcript of the trial which bore upon these matters. It called for, and was given, the transcript of the prosecutor's opening remarks, and the judge's charge to the jury.

[13] It would seem that the judge was of the view that, by imposing a "non-conviction bond", he was not determining the guilt of the respondent on count 3. If that was his view, it would seem to me that he was in error. (See authorities referred to hereunder.)

[15] Cf. Maxwell v. R. (1996) 184 C.L.R. 501 at 508-9 per Dawson and McHugh, JJ.; R. v. Jerome & McMahon [1964] Qd.R. 595 at 604 per Gibbs, J.

[17] After referring to Tonks & Goss (supra), R. v. Jerome & McMahon [1964] Qd. R. 595 at 604, per Gibbs, J. and Griffiths v. R. [1977] HCA 44; (1977) 137 C.L.R. 293 at 313-4, 335.

[19] See also R. v. Cole [1965] 2 Q.B. 388 at 394-5.

[21] cf. Freckleton, Criminal Law Investigation & Procedure, Victoria, Vol. 2.12.12.20.

[22] R. v. Hazeltine [1967] 2 Q.B. 857 at 861-2; and R. v. Bebbington (1978) 67 Cr.App.R. 285 at 286-7 (a case involving facts and charges similar to those of this case).

[23] See R. v. Murphy (1988) 52 S.A.S.R. 186 at 189 per White, J.

[27] (1996) 184 C.L.R. 501, per Gaudron and Gummow, JJ. at 530 and 532 and per Toohey, J. at 524.

[28] If the prosecution accepts a plea to an unrelated count, then it should file over a new presentment making no reference to the count in respect of which a plea has been accepted. That count will then ordinarily be quite irrelevant to the trial which will follow thereafter.

At a glance

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Judgment (115 paragraphs)

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