DPP v Ferguson [2004] VSC 261

Supreme Court of Victoria|2004-07-29|Before: SMITH J

CRIMINAL LAW - Plea of guilty to presentment while jury in charge of earlier presentment relating to the same matters - Whether second presentment and plea a nullity - Whether jurisdiction in trial court to consider whether a nullity - What constitutes acceptance by the court of plea of guilty - Consequences of such acceptance. JUDICIAL REVIEW - Application to review decisions of judge of County Court as to validity of presentment and plea of guilty.

The Director of Public Prosecutions, by originating motion issued under Order 56, seeks orders in the nature of or to bring up and quash a ruling made by a judge of the County Court that Presentment L0 2205527.1 was an nullity and remitting that presentment to the County Court for determination according to law.

On 20 September 1999, Presentment L02205527 was filed in the County Court presenting Robert Braid Ferguson on 19 counts of indecent assault upon persons aged under 16 years. They comprised the following:

(a) Counts 1 to 4 concerned D. F. and calendar years 1976, 1977, and 1978 and 1979;

(b) Count 5 also concerned D. F. and related to 1979 and concerned an occasion other than that referred to in count 4;

(c) Count 6 concerned SLM and a period between 1 June 1980 and 30 June 1980;

(d) Counts 7 to 19 concerned JNS -

* Count 7 and 8 alleged 2 occasions of indecent assault between 1 July 1987 and 31 July 1987 of indecent assault,

* Counts 9, 10 and 11 alleged 3 occasions of indecent assault between 1 January 1988 and 31 December 1988,

* Count 12 alleged indecent assault between 1 January 1989 and 31 December 1989,

* Counts 13, 14, 15 and 16 alleged four occasions of indecent assault between 1 January 1990 and 31 December 1990, and

* Counts 17 and 18 and 19 alleged indecent assault on different occasions between 1 June 1991 and for August 1991.

A jury trial commenced on Presentment LO 2205527 on 21 July 2003. The jury was discharged without verdict on 28 July 2003 after a juror observed Ferguson and his brother making lewd comments to a woman outside court.

A second trial commenced on 22 September 2003. On 24 September 2003, after negotiations between Ferguson and the Crown, Ferguson agreed to plead guilty to a new presentment. He was arraigned on a "filed over" presentment L0 2205527.1. He pleaded guilty to all counts in the presentment. They comprised:

(a) Count 1 - a representative count of indecent assault upon DF for the period 1 January 1976 to 31 December 1979;

(b) Count 2 - a rolled up count of indecent assault upon DF for the period 1 January 1979 to 31 December 1979;

(c) Count 3 - a single incident count of indecent assault upon SLM between 1 June 1980 and 30 June 1980;

(d) Count 4 - a representative count of indecent assault on JNS for the period 1 July 1987 to 4 August 1991;

(e) Count 5 - a rolled up count of indecent assault upon JNS for the period 1 June 1991 to 4 August 1991.

The arraignment on the new presentment and the entry of the plea of guilty took place in the absence of the jury. The allocutus[1] was then put to Ferguson and he was remanded for plea and sentence. The jury was subsequently brought into court and, in the presence of Ferguson, discharged.

At the hearing of his plea on sentence on 3 November 2003, Ferguson sought leave to change his plea and his then counsel withdrew. Her Honour adjourned Ferguson's application to 15 December 2003 to enable him to obtain representation. On 15 December 2003, a solicitor advocate appeared for Ferguson and made submissions on the change of plea application. Her Honour reserved her decision. On 18 December 2003 she gave her decision refusing the application and listed the plea for hearing on 4 February 2004.

At the plea hearing on 4 February 2004, counsel briefed for Ferguson raised and argued an issue concerning alleged procedural irregularity in the discharge of the jury which was said to affect the validity of the second presentment and the plea made to it. Counsel for the prosecution disputed this argument and raised a question whether Her Honour had jurisdiction to consider the validity of the second presentment in circumstances where Ferguson had already pleaded to it. Counsel argued that that was an issue for the Court of Appeal. This question of jurisdiction was one that counsel for the prosecution was not in a position to fully develop and the course was adopted of deferring that issue pending the ruling on the validity issues. Submissions were then put on the validity issues.

The matter was then adjourned to 17 February 2004. On the adjourned date, Her Honour ruled that the second presentment was a nullity. If correct, the result of the ruling was that Ferguson was returned to the position of having pleaded not guilty to the first presentment and a trial would take place on that presentment.

In her ruling, her Honour stated that the application by the prisoner was to have his plea of guilty against the second presentment set aside on the basis of procedural irregularity.

The argument put for the prisoner was in essence that the filing of a fresh presentment on 24 September 2003 prior to dealing with the earlier presentment , which was at that time still in charge of the jury, was irregular and a nullity and, as a result, all that flowed from it was a nullity including the plea of guilty that was entered against it. It was put that the second presentment was a nullity because it was filed after the trial had commenced and before the jury had been discharged in relation to the first presentment, which was still alive. It was submitted that a presentment concerning the one accused and covering the same facts and circumstances could not proceed at the same time. Therefore, it was said, the first presentment had to be finalised before the second presentment was filed. It was put that the course that should have been adopted was that of discharging the jury and then the filing over of a fresh plea presentment.

Counsel for the prosecution argued before her Honour that there was no procedural irregularity and that the fresh presentment was a good one and, upon filing, operated as a stay of the first presentment.

Her Honour noted that there appeared to be no authorities directly in point but that the defence relied particularly on a Victorian Full Court decision of R v Paprounas.[2] In that case, the accused had pleaded not guilty before the jury and been placed in its charge. At a late stage in the trial, when the accused was giving evidence, his counsel indicated to the trial judge that he wished to be re-arraigned and to change his plea to guilty. The accused was then re-arraigned in the presence of the jury on the same presentment and pleaded guilty to the charge contained in it. The learned trial judge then informed the jury, before whom the plea had been made, that there would be no verdict for it to enter and that he would discharge them without verdict. This he proceeded to do. The Full Court held that because the accused had been placed in charge of the jury, it was the tribunal that had the authority to determine guilt or innocence and that as long as the accused remained in its charge he could only be convicted or acquitted by its verdict. It held that the trial accordingly had not concluded according to law and that the course adopted by the learned judge of purporting to convict the applicant by accepting his plea and then discharging the jury and imposing his sentence constituted a grave irregularity and that the course followed had the result that there was no lawful conviction of the accused.

Her Honour noted that Ferguson had pleaded guilty in the absence of the jury to a fresh presentment which was filed over at a time when the jury was still in charge of the earlier presentment to which he had pleaded not guilty. Counsel for Ferguson argued that notwithstanding the different circumstances, the principle should be applied that the first presentment before the jury must be dealt with either by verdict or discharge and before any plea could be taken to another presentment. The nullity point was restated as whether it was lawful for the DPP to file over a fresh presentment covering the same accused and the same facts and circumstances at a time when the jury was still in charge of the original presentment which had not been discharged or moved to verdict.

Her Honour concluded that it was incumbent upon the Crown to seek the discharge of the jury prior to filing the second plea presentment which covered the same facts and circumstances and contained one count that was exactly the same. She expressed the view that once that had been done, the filing of the new presentment would have stayed the first presentment and the plea could have been properly taken to that new presentment. I note that her Honour took the view that the Crown could not have properly pleaded the accused person in front of the jury because the presentment was essentially different in its construction and nature. Her view was that while the first presentment was alive, the Crown could not lay a fresh presentment and herein lay the irregularity. Her Honour, therefore, accepted the submission that the solution would have been, at the time, the discharge of the jury followed by the filing of a fresh presentment.

The validity question having been determined adversely to the prosecution, submissions were then heard on the jurisdictional question previously raised by counsel for the prosecution. It appears from the transcript that the matter had to be considered under circumstances of some pressure. In the course of counsel's submissions reference was made to two cases in particular, namely, Maxwell v The Queen[3] and R v Clarke[4]. Counsel for the prosecution submitted to her Honour that there had been an acceptance of the plea of guilty and that amounted to a final determination of guilt and was the equivalent of a conviction. He further submitted that, that having occurred, it was not open to her Honour to investigate the validity of the presentment and plea made to it. Counsel for Ferguson argued, by reference to the power of the trial judge to reject a plea and the power to give leave to withdraw the plea of guilty, that jurisdiction remained. At the conclusion of submissions, her Honour ruled that she did have jurisdiction to make the ruling that she had made on the validity of the second presentment and that the consequence was that the matter had to proceed to trial on the first presentment on 19 counts. The reasons are brief. Her Honour stated:

"As I indicated to you both, I had given this matter consideration over the break and I had looked at Clarke's case and taken into account the preliminary matters that were raised, which, in effect, are perhaps those that have been amplified today. My view has not changed. In my view, I am in a position to make the ruling that I have done ..."[5]

The issues in this proceeding - preliminary and substantive

The first issue to consider is a preliminary issue. It arises from the fact that the originating motion was issued after the 60 day time limit prescribed for proceedings issued under Order 56. Accordingly, the plaintiff cannot proceed without an extension of time. He must demonstrate special circumstances before an extension can be granted.[6] He seeks that extension.

Turning to the substantive relief sought, the originating motion identifies the following ground:

"The Second Defendant erred in law by ruling that Presentment L02205527.1 upon which the First Defendant had been arraigned and had pleaded guilty was a nullity."

In support of this ground , the plaintiff relies on two arguments:

* that the learned judge had no jurisdiction to determine whether or not the presentment was a nullity;

* that the learned judge erred in law in ruling that there was an irregularity in the course adopted and that the second presentment was a nullity.

Under Order 56, the plaintiff must establish special circumstances justifying an extension of time. Counsel for the plaintiff, the Director of Public Prosecutions, submitted that the following constituted the "special circumstances":

* the proceedings were commenced a matter of days after the time limit had expired -- approximately 10 days,

* a significant part of the delay was caused by delay in obtaining in the transcript of her Honour's ruling,

* it was a matter of considerable public interest that the matter be resolved.

I accept the submissions of counsel for Ferguson that there were delays on the part of the Director of Public Prosecutions that could have been avoided and the first two points relied upon by the Director do not constitute special circumstances. On the evidence, he had decided on the day of the ruling, 17 February 2004, to bring proceedings to review it. Notwithstanding a delay in the release of the transcript of the ruling, the necessary papers could have been prepared pending receipt of the transcript.

To my mind, however, special circumstances do exist in this case. They arise from the fact that significant doubt attaches to the position taken by her Honour on the question of jurisdiction and the alleged error of law. If her Honour did not have jurisdiction to consider the validity of the second presentment, and that was a matter to raise on appeal to the Court of Appeal, a trial on the first presentment should not take place pending an appeal. Further, if there was no irregularity or invalidity, the plea should proceed and no trial should occur on the first presentment. On the other hand, if I were not to grant an extension of time to enable these issues to be resolved, a trial would proceed on the first presentment in circumstances of great uncertainty. This is not in the public interest or the interest of the individuals involved. The issues raised need to be reviewed and resolved before any further steps are taken on the first presentment. I, therefore, consider that special circumstances have been shown. I turn to the two issues raised.

Counsel for the Director submitted that the trial process had concluded prior to the issues being raised. Counsel argued that this flowed from the acceptance of the plea to the new presentment, the remanding of Ferguson in custody for plea and sentence and the later entertaining, and refusing, of an application to withdraw the pleas of guilty. He submitted that her Honour had no jurisdiction to consider the validity of those steps. Counsel submitted that the only course open to the learned trial judge was to hear the plea on sentence and sentence Ferguson. If there was any fundamental irregularity in the proceedings relating to the new presentment, that was a matter to be considered by the Court of Appeal in the event of an appeal, not by her Honour.

Counsel for Ferguson submitted that her Honour retained the power to consider the alleged irregularities and the validity of the presentment and plea until sentence was passed.

In support of his submission, counsel for the Director relied upon the Court of Appeal decision in R v Clarke.[7] In that case, the trial proceeded to jury verdict. The jury found the accused guilty on seven counts and not guilty on two counts. After receiving the verdicts of the jury, the learned trial judge discharged the jury. The case was then adjourned for plea and sentence. On the following day, his Honour told counsel that there was an irregularity in that during the deliberations the jurors had separated but had not been sworn prior to their separation in accordance with s 50(2) of the Juries Act 2000. His Honour did not proceed further with the trial and reserved a question of law for the Court of Appeal as to whether the trial judge, once aware that the jury verdicts were invalid as a result of the jury not having been sworn in accordance with that section, had "the power to regard the verdicts and the trial as being a nullity and proceed with a re-trial?" The Court of Appeal, expressed dissatisfaction with the question that had been stated and the matter ultimately proceeded before it on the basis of an application for leave to appeal against conviction by the accused. The Court of Appeal, following R v Taylor[8], ruled that the irregularity that had occurred was a fundamental irregularity which could not be cured. It expressed the view that if the irregularity had come to the trial judge's attention prior to verdict, the trial judge would have had the authority to consider whether the irregularity was such as to deny the accused a proper trial and would have had the power to discharge the jury if he concluded that it had. Where, however, an irregularity becomes known to the judge after verdict and before completion of the trial process, the only course open to the trial judge is to complete the trial. If an appeal was instituted, then the trial judge could include in his or her report to the Court of Appeal an opinion about the irregularity and the matter could be considered by the Court of Appeal. The Court of Appeal ruled that the irregularity was fundamental and went to the root of the proceedings such that the accused did not have a proper trial according to the law and, therefore, the application should succeed and the appeal should be allowed.

Of course the present case differs from R v Clarke, in that a jury verdict was not obtained. Rather, Ferguson pleaded guilty to the second presentment. The issue is to be resolved by considering whether there had there been a final determination of guilt which amounted to a conviction[9] before her Honour was asked to consider the validity of the presentment and plea. On the authorities, the answer to this question turns on whether the plea of guilty had been unequivocally accepted by her Honour.

Counsel for the Director submitted that the relevant principles concerning acceptance of a plea of guilty were discussed in Maxwell v The Queen.[10] In that case, Maxwell was charged with the murder of his wife. He pleaded not guilty to the charge of murder but guilty to manslaughter on the basis of diminished responsibility.[11] The prosecution accepted the plea of guilty in satisfaction of the indictment.[12] Material was then placed before the Court for the purpose of sentencing. It included psychiatric material which raised doubts as to whether the situation was properly one of diminished responsibility. The judge raised concerns about whether he could accept the plea when he was not satisfied that the defence of diminished responsibility was made out on the material before him. At the subsequent hearing before his Honour, counsel for the prosecution did not withdraw his election to accept the plea but submitted that the judge should reject it. His Honour concluded that he did have power to reject the plea and did so. The matter then proceeded on the basis that the orders made by the judge were interlocutory. An appeal was brought to the Court of Criminal Appeal. The trial judge certified two questions for consideration as follows:

"1. Can the prosecution withdraw the acceptance of a plea after a plea has been accepted? 2. Has a trial Judge, when a plea has been accepted by the Crown in full satisfaction of an indictment, any power to reject the plea?"

The Court of Criminal Appeal answered both questions in the affirmative. The matter was then taken on appeal to the High Court. For the appellant it was put that the trial judge could not reject the appellant's plea of guilty to manslaughter because he had already been convicted of that charge. A majority of the High Court held that the prosecutor could, with leave of the Court and before conviction withdraw acceptance of a plea and that a trial judge had no power to review the prosecution's acceptance of a plea of guilty save to prevent an abuse of process. In their reasons, their Honours discussed the issue of what constitutes a conviction when an accused pleads guilty. Their Honours differed somewhat in their discussion of the issue.

Dawson and McHugh JJ, in considering the question, stated that there is "no single, comprehensive answer" to the question of what amounts to a conviction. Much depends on the context in which the question is asked. Their Honours stated that in the context in which the question arose in that case, in particular that of autrefois convict, a plea of guilty is insufficient of itself to constitute a conviction. After referring to older authorities[13] their Honours commented:

"Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea. In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court[14], a plea of guilty is not in the ordinary course of events accepted until sentence is passed on the accused."

After noting the right of any accused to be permitted to change his plea to not guilty at any time before sentence or final disposition, their Honours commented that:

" ... an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to 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, save in unusual circumstances such as occurred in Griffiths v The Queen where the accused, who pleaded guilty, was remanded for sentence in twelve months on condition that he entered into a good behaviour bond for that period."[15]

Their Honours indicated that bearing in mind the underlying rationale of autrefois convict of preventing duplication of punishment, finality of adjudication was essential for the doctrine to apply.

Their Honours stated that in the circumstances of that case, the learned trial judge had not, by remanding the appellant for sentence, accepted the plea in any way which amounted to a determination of guilt and hence a judgment of the Court. They commented that there were no unusual features which would displace the ordinary consequence that a determination of guilt upon a plea of guilty would take place only upon sentence being passed - something that had not occurred in that case. As a result, their Honours expressed the view that the appellant was not precluded from seeking leave to change his plea. He had not, however, sought to do so. They then stated that, while there was no conviction standing in the way of a rejection of the plea by the Court, his Honour did not in the circumstance of the case, however, have the power to do so. After noting that the trial judge had a discretion to intervene to prevent an abuse of process, their Honours concluded that he did not have a discretion to intervene in other circumstances where upon the plea being accepted by the prosecution, the diminished responsibility of the accused was no longer an issue and the judge was required to approach the task of sentencing the accused accordingly. They commented that his Honour's views as to the sufficiency of the material to establish diminished responsibility was no more relevant than the view of a trial judge who disagrees with the verdict of a jury. It remained open to the prosecution, on the proposed re-hearing to withdraw its acceptance of the plea. They stated that an accused may with leave withdraw a plea of guilty at any time before sentence or other disposal of the case and there is no reason why the prosecution should be placed in a lesser position. It would require the leave of the Court, however.

Toohey J, also expressed the view that a plea of guilty does not of its own force constitute a conviction and that there must be some act on the part of the Court to indicate a determination of the question of guilt.[16] His Honour commented that there are several ways in which a Court may show acceptance of a guilty plea:[17]

"The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction.[18] Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier[19]. The allocutus was not given here. There may also be implied acceptance, for instance, by proceeding to pass sentence[20] or by calling for the record from the gaol recorder[21]."

Toohey J went on to refer to the views of Aickin J in Griffiths v The Queen[22] that the remanding of an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty because the step of remanding could not be taken without there having been a conviction. His Honour also noted that there may be a conviction when the Judge enters upon a consideration of what should be done in relation to sentencing, for example, by hearing evidence relevant to the sentencing[23] or even perhaps by adjourning the proceedings to enable information relevant only to sentencing to be obtained[24]. His Honour also noted the view of Jacobs J in Griffiths v The Queen that there was a conviction when the verdict or plea was recorded[25] but that the absence of a formal record is not determinative. I note that in citing the view of Aickin J in Griffiths that the remanding of an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty, Toohey J recorded that that proposition had been followed in Director of Public Prosecutions v McCoid[26] by the Full Court of this State. This decision does not appear to have been cited in the other reasons for judgment in Maxwell.

In a joint judgment, Gaudron and Gummow JJ also expressed the view that a plea of guilty does not of its own force constitute a conviction and that for that to occur there must be some act on the part of the Court to indicate a determination of the question of guilt.[27] After stating that imposition of a sentence will clearly amount to an indication of determination of guilt, reference was made to the position in the United Kingdom which was seen by their Honours to be not entirely satisfactory that there was no conviction until final adjudication by sentence. They noted[28] that that approach was inconsistent with the observations of Barwick CJ, Jacobs and Aickin JJ in Griffiths v The Queen. Their Honours referred specifically also to Aickin J's view that the step of remanding the accused for sentence was "an unequivocal indication that the accused had been found guilty". Their Honours commented:

"Ordinarily, that will be so. However there may be circumstances which indicate that the remand is provisional, in the sense that it will be treated as if it were a remand for sentence, rather than a general remand, if the plea is accepted and the accused convicted."[29]

Gaudron and Gummow JJ went on to say that in the matter before them, there was nothing in the case other than the remand order to indicate that there had been a determination of guilt. Further there were two matters indicating the contrary. One was that for there to be a determination of guilt it was necessary for it to be accepted that the appellant intentionally shot his wife. The other was that, at the conclusion of submissions, his Honour announced that he would "consider the matter". He did not say that he would consider the sentence to be imposed. In those circumstances their Honours regarded the remand for sentence as provisional and, therefore, the appellant had not been convicted.[30]

Reference should also be made to the above mentioned decision of the Full Court of the Supreme Court of Victoria in DPP v McCoid[31]. That case concerned, inter alia, the application of the Crimes (Confiscation of Profits) Act 1986 and the requirement that applications under that Act be made within six months after conviction. The Full Court held that conviction occurred when a plea of guilty was accepted and that that occurred in that instance where the accused was remanded for plea and sentence and not when he was sentenced. The Court relied upon Griffiths v R[32] in particular the judgment of Aickin J and Jacobs J. Aickin J's view was accepted by Young CJ in McCoid who stated:

"What needs to be emphasised in that passage is that the remanding of an accused person for sentence, whether in custody or on bail, is an unequivocal indication that the accused has been found guilty."

The present case differs from Maxwell in that the allocutus was given, and given prior to the discharge of the jury and the raising of the nullity issue. Only Toohey J touched on its significance in Maxwell.

The allocutus was given following the plea of guilty to each count. Her Honour's Associate followed the usual course of putting a prior conviction to Ferguson which he acknowledged. He was then asked for, and gave, his name, age, date of birth, occupation and address. The Associate then said:

"Robert Braid Ferguson, you have pleaded guilty to three counts of indecent assault on a girl under 16 and two counts of indecent assault on a person under 16. Do you know of any reason or have anything to say why this honourable court should not pass sentence upon you according to law?"

His counsel then responded and there was then a discussion about arrangements for the plea and Ferguson was remanded into custody for sentencing.

The allocutus has an ancient history. That history is referred to in R v Rear[33]. It appears that it was a procedure that originally applied when the punishment for felony was death and forfeiture and the rights of the prisoner were extremely limited. The allocutus gave the prisoner the opportunity of "pleading his clergy" - claiming the benefit of clergy - or moving on other grounds in arrest of judgment.[34] If the prisoner successfully claimed the benefit of clergy, the matter was dealt with by the ecclesiastical courts. If the allocutus was not put or the Court failed to give effect to proper grounds put forward at that time in arrest of judgment, the prisoner could, in the past, by way of writ of error bring application to the Queen's Bench Division. That right has long since been abolished and replaced by a right of appeal. I note that the Court of Criminal Appeal in Rear v R went on to consider what consequences if any there were where the allocutus is not administered. It declined, however, to rule on whether in that situation the matter must be returned to the trial court for the putting of the question and re-sentencing.[35]

In Rear v R, the Court of Criminal Appeal went on to question whether the allocutus served any useful purpose[36]. It appears, however, that the procedure in England was for the allocutus to be put after the plea on sentence had been made and immediately before sentence was passed. The Court of Criminal Appeal suggested that the allocutus either be abolished or all accused be given the opportunity to speak after his or her counsel whatever the offence charged.

It should be noted that the Court of Criminal Appeal did not consider the question whether the putting of the allocutus might serve the useful purpose of indicating a court's acceptance of the plea. The Queensland Court of Criminal Appeal in R v Shillingsworth[37] has considered that question. It relied on the allocutus for that very purpose. It held that the date of conviction of the applicant in that case was the date when the allocutus was put to him following his plea of guilty. The result was that he had to be sentenced as a child.[38]

I note that the view is expressed in the Victorian Trial Manual that the asking of the question in the allocutus:

"Indicates the Court's acceptance of the jury verdict or the plea of guilty and provides an opportunity for a prisoner to challenge the conviction and move in arrest of judgment:[39] . . . . Unless some relevant matter is raised in response to the allocutus the trial process is at an end and the sentencing process commences."[40]

An issue remains as to how the conclusion that the putting of the allocutus constitutes an acceptance of the plea can be reconciled with the proposition, accepted by both parties in this case, and, I believe properly so, that Ferguson retained the right, subsequently, to seek leave to withdraw his plea. Toohey J specifically addressed this problem. He stated the following:

"The Crown argued that because the Court may allow a plea of guilty to be withdrawn at any point until sentence, there can be no conviction until that point. But there is no necessary inconsistency in finding that a conviction occurs before sentence is passed and holding that there is power to allow a change of plea before sentence is passed.[41] In that situation the change of plea sets aside the conviction.[42] The view has been taken that a conviction on a plea of guilty is to be regarded as provisional in the sense that, until sentence, it is subject to be vacated."[43]

The brevity of the reasons given for the ruling make it difficult to determine whether her Honour based her decision on a particular view of the law or whether she based her decision on a factual analysis of the events that had occurred[44] and came to the conclusion that she had not accepted a plea of guilty at any time prior to the argument being raised as to the validity of the presentment and plea of guilty. It may be said that she was in the best place to say whether the plea of guilty had been accepted by her. This in turn raises a further issue, however, as to whether acceptance of the plea of guilty is to be determined by examining what was said and done by her Honour or by having regard to the judge's subjective state of mind at the relevant times. This in turn may raise issues about the test to be applied in reviewing the decision on the jurisdictional issue. Assuming that acceptance of the plea of guilty is a matter to be determined by objective analysis of the events that occurred, it seems to me difficult to come to any conclusion other than that the action of putting the allocutus followed by the action of refusing bail and remanding for sentence, although done in an informal manner, constituted acceptance by her Honour of the plea of guilty. I have not, however, had the benefit of argument on these points. I have considered inviting further submissions but this would involve further delay and legal costs. In view of the conclusions I have reached on the substantive issue, the practical course is to set out my above conclusions about the legal issues raised by the parties but to express no final view on the jurisdiction question in this particular case. The application is resolved by consideration of the substantive issue, to which I now turn.

Was there a fatal irregularity in the second presentment

It was common ground between the parties that agreement having been reached between the Director of Public Prosecutions and Ferguson to the filing of a fresh presentment to which he would plead guilty, it was proper and necessary to discharge the jury that had been empanelled and was in charge of the first presentment. As to the fate of the first presentment itself, there appear to have been at least two options - an order staying the proceeding or the entry of a nolle prosequi. The argument for Ferguson was, and is, that the first presentment had to be dealt with and the jury discharged prior to the filing of a fresh presentment.

I was referred to a number of authorities but none are directly in point. There is ample authority, however, that there is nothing necessarily unlawful or necessarily improper in itself in the Crown filing two presentments dealing with the same matters. The presentments are not necessarily nullities but, by doing so, the prosecution exposes itself to whatever applications may be required to address the duplication of proceedings.

For example, in R v Grant[45], the accused was charged on a presentment listing 74 counts of theft. He reserved his plea at the committal hearing but subsequently notified the Crown that he was willing to plead guilty to the charges. Subsequently, by arrangement with Grant, the prosecution sought and obtained leave to file over a new presentment against Grant containing two rolled up counts. The first presentment relating to Grant, however, was never cleared. It was neither quashed, stayed or discontinued by way of a nolle prosequi. On the appeal, counsel for Grant raised the possibility with the Court of Appeal that the convictions on the second presentment might be null and void with consequential invalidity of the sentences imposed. At the appeal, counsel for Grant referred to cases such as R v Landy[46] where it had been held that an accused could not be tried in the one trial on two presentments and that if that occurred any conviction that followed was a nullity. In his reasons for judgment in Grant, however, Phillips CJ noted, that it was well established at common law that the existence of one indictment or information was no absolute bar to the filing of a second with respect to the same or similar offences[47]. In the course of his reasons, Phillips CJ noted with approval the course adopted by Ormiston J in Harris[48] of requiring the prosecution before arraignment of the accused to elect which of the two indictments would be proceeded with indicating that he would stay the proceedings on the other permanently to avoid any further doubt or difficulty. Phillips CJ commented that the Court had such power to stay proceedings whenever the justice of the case required it to prevent abuse of its own process. Reference was also made in Grant to R v McNamara[49] where again two presentments existed. In that case the Court of Appeal, comprising Winneke P, Charles JA and Southwell AJA commented:

"The fact is that it was a second presentment to which the applicant pleaded. It is not necessary to pause to consider the status of the first presentment. If its presence on the court file had the capacity to cause unfairness to the applicant, there is an inherent power in the Court to order that it be stayed."[50]

"To put the argument for Grant at its very highest, it might be said, as was said in Storey, that to proceed on the second presentment before the first has been cleared or otherwise disposed of is `irregular and inconvenient' (although in this instance even the latter may be doubted). Here, as indeed in Storey, what was done was done by agreement and, as was accepted in argument, it was done for the advantage of Grant_._ Instead of pleading guilty to a presentment containing 74 counts, Grant pleaded guilty to a presentment containing two counts thereby reducing vastly the sum total of penalties to which he was exposed, theoretically at least, when it came to sentence. The substance of the second presentment reflected the substance of the first, and differed only as to the number of counts; the period during which the thefts occurred and the amount of money involved remained the same in total. It appears that Grant was only too willing to plead guilty to the second presentment instead of the first. That having been the course taken, with the concurrence of both Crown and accused, I see no reason at all to suppose that the failure to clear the first presentment in respect of Grant, or to quash it, or to stay proceedings on it in some way vitiates the convictions that ensued from Grant's plea of guilty to the charges contained in the second presentment. Perhaps it would have been tidier procedurally if when leave was sought and obtained to `file over', the learned Chief Judge had stayed all proceedings against Grant on the first presentment. If it matters, I suppose that Grant might seek and obtain that stay now, but it is difficult to see why a plea of autrefois convict is not now available to him. At all events, no application was made to us for such a stay and it is unnecessary to consider it. The first ground taken by Grant on this application is rejected."[51]

The present case differs from Grant, as was argued for Ferguson, in that in Grant, a jury had not been put in charge of the first presentment insofar as it related to Grant.

While the distinction can be made, it is only of consequence if in some way it can be said that the jury's involvement in the first presentment relevantly connected it to the second presentment. Counsel for Ferguson submitted that the similarities were such between the two presentments that in reality the second presentment was a repeat of the presentment in respect of which the jury had been put in charge. Counsel submitted that it was a device to get around the decision in R v Propounas.[52]

It is true that the second presentment by means of representative and rolled up counts covered the same ground as was covered in the first presentment. In addition one count was repeated. The jury, however, was never put in charge of the second presentment. The second presentment was in fact substantially different. If Ferguson had been tried on it, the conduct of the trial would have been different. If sentenced on it, the sentencing process would also be very different. The DPP was not "trying to get around the decision" in R v Propounas. The second presentment was filed as part of an agreement between the Crown and Ferguson and accepted by Ferguson because it was seen to be to his advantage.

The only way that I can see a connection arising between the jury and the second presentment such that its verdict was required would be if the second presentment was substituted for the first presentment; for the jury might then be said to be in charge of the second presentment. It is clear from Harris and Grant[53], however, that the filing over of a presentment does not result in the second presentment being substituted for the first.

In the end, I am unable to see any basis upon which it might be said that the first presentment had to be disposed of by verdict or discharge of the jury before the DPP could proceed with the second presentment. Consistently with the analysis in Grant, what occurred was done by agreement and done for the advantage of Ferguson. By pleading guilty to a presentment containing far fewer counts, he significantly reduced the sum total of penalties to which he was at least theoretically exposed when it came to being sentenced. It would have been tidier procedurally if, when it was sought to file over the second presentment, an order had been made to stay the proceedings on the first presentment. That could still be done.[54] At some stage, action may have needed to be taken such as the ordering of a stay on the first presentment or the entry of a nolle prosequi. Nonetheless, once the plea of guilty was accepted a plea of autrefois convict would have been available.

Accordingly, the validity of the second presentment was not affected by the existence of the first presentment or by the failure to formalise its non-operation and the discharge of the jury prior to hearing the plea on sentence.

Counsel for Ferguson submitted that the Court's over-riding discretion in these matters should be exercised against the grant of the relief sought. He submitted first that delay and the fragmentation of proceedings were matters of significance to be taken into account. He also submitted that Ferguson could have sought a change of plea on the basis of the irregularity. Finally, counsel submitted that the best way to bring around finality was to deny relief.

In my view while there has been a delay, it is not such as to justify discretionary refusal of the relief sought. As to fragmentation of proceedings, the application does not involve consideration of some interlocutory phase in the proceeding. The decision of her Honour was such as to bring the proceeding to an end. As to whether Ferguson has been denied an opportunity to seek leave to change his plea on the basis of an irregularity, the above analysis would suggest that if any such point had been raised, it could and should have been speedily dealt with by staying the earlier presentment or by the prosecution entering an nolle prosequi. Finally, views may differ as to what course is the best to follow to achieve finality. On balance, it seems to me that to give the relief sought in this proceeding is the best way to achieve finality. True it is that an appeal may be sought from such a decision. On the other hand, if the relief sought is not granted, the wrong presentment would, in my view, be allowed to proceed, one involving the full trial of the 17 counts.

There being no proper discretionary basis for refusing the relief sought, the application should be granted.

I certify that this and the 22 preceding pages are a true copy of the reasons for Judgment of Smith J of the Supreme Court of Victoria delivered on 29 July 2004.

[1] "Robert Braid Ferguson, you have pleaded guilty to three counts of indecent assault on a girl under 16 and two counts of indecent assault on a person under 16. Do you know of any reason or have anything to say why this honourable court should not pass sentence upon you according to law?"

[9] R v Tonks [1963] VicRp 19; [1963] VR 121, at 127-8; Griffiths v R (1976) 293, 335.

[11] S 23 A Crimes Act 1900 (NSW).

[12] S 394 A Crimes Act.

[13] At p 508-9 citing R v Tonks [1963] BR 121; Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, 271 -3; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293; Richards v The Queen [1993] AC 217.

[14] At p 509 referring to Griffiths v The Queen at 313-4.

[16] At 520 citing in particular R v Tonks above.

[18] Citing Griffiths v The Queen, above, per Barwick CJ at 302; R v Gillan [1991] FCA 184; (1991) 54 A. Crim. R. 475, 478.

[19] Citing R v Shillingsworth [1985] 1 Qd R 537, 543; R v Collins (1994) 76 A. Crim. R, 204, 210 and R v Rear [1965] 2 QB 290, 292 as to the history behind the allocutus.

[20] Citing R v Tonks [1963] VicRp 19; [1963] VR 121, 126; R v Jerome McMahon [1964] Qd R 595, 604.

[21] Citing Griffiths v The Queen at 302.

[23] Citing Frodsham v O'Gorman [1979] 1 NSWLR 683 of 688.

[24] Citing R v Jerome & McMahon [1964] Qd R 595, 604.

[27] At 529 citing R v Tonks above and Gibbs J in R v Jerome & McMahon [1964] Qd R 595.

[35] Note in Rear v R, it was held there was no irregularity because the charges were for summary offences not indictable ones and the allocutus was only required in trials on indictment.

[38] He had turned 17 after the acceptance of the plea and before sentencing was complete and by then was no longer a "child" for sentencing purposes.

[39] Citing Taylor (1928) 21 Cr App R20; Hodgkinson [1954] VicLawRp 23; [1954] VLR 140; Gombos [1965] 1 ALL ER 229; Rear (1965) 49 Cr App R 192; Shillingsworth (1985) 15 A Crim R 453.

[41] Citing S v Recorder of Manchester [1971] AC 481, 490.

[42] Citing Griffiths v The Queen, above, at 336 per Aickin J.

[43] Citing R v Phillips and Lawrence [1967] QDR 237, 288 - 9. Adopted in R v Miller [1990] 2 QDR 566, 576; cf Kimmorley v Atherton; ex parte Atherton [1971] QDR 117, 125 per Hanger SPJ, a decision which is at odds with S v Record of Manchester.

[44] I am inclined to the former explanation in view of her Honour's statement after the allocutus was put that it was "a formality" rather suggesting that she had not appreciated its legal significance.

[45] BC 9606720, Vic C of A 12 December 1995; a case not cited to Her Honour.

[47] At 39 referring to a line of authority commencing with the case of Swan and Jefferys (1751) FOST 104 concluding with R v Harris (No.2) [1990] VicRp 27; [1990] VR 305.

[54] Section 4 Crimes (Criminal Trials) Act 1999 which provides for an automatic stay did not come into operation until 1 September 1999 and does not affect this proceeding, Ferguson having been committed for trial on 28 June 1999 - s 33 Crimes (Criminal Trials) Act 1999.

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties

Cases Cited (4)