GILLESPIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 149 (19 June 2013)

GILLESPIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 149 (19 June 2013) - WASCA 2013 case summary — Zoe

[148]

In my opinion an offender is only 'convicted' of committing the offence in the circumstances of aggravation, within the meaning of s 7(3)(a), if (in a jury trial), the jury convicts the offender of committing the offence in the circumstances of aggravation.

That was the conclusion reached by McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Wade v The Queen [45].

In my opinion, when a circumstance of aggravation is pleaded in the indictment the trial judge must obtain the verdict of the jury in relation to that circumstance of aggravation, otherwise, the offender would not, by force of s 7(3)(a) of the Sentencing Act 1995, be liable to the greater statutory penalty.

In The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, Murray J held that when an accused pleaded guilty to the offence of robbery, denying a pleaded circumstance of aggravation, the alleged disputed circumstance of aggravation was to be tried by him, rather than by a jury. (Compare the practice in South Australia, as to which see R v Hietanen (1989) 51 SASR 510, 514.) The appeal against the sentence imposed by his Honour did not raise any issue as to whether the disputed circumstance of aggravation was to be tried by the judge or by the jury; see Majok v The State of Western Australia [2006] WASCA 140.

In The State of Western Australia v Majok, Murray J expressed the obiter opinion that, in the event of a plea of not guilty, a pleaded circumstance of aggravation gives rise to a power, on the part of a trial judge, to seek a special verdict under s 642 of the Criminal Code (substantially the predecessor to s 113(2) of the Criminal Procedure Act 2004), and that only if and when the trial judge exercised that power did the jury have any role to play in determining whether the pleaded circumstance of aggravation had been established. I have, with respect, come to a different conclusion, as is set out earlier in these reasons. I note that the decision in Wade v The Queen was not cited to his Honour.

In my view neither the applicable statutory provisions nor any rule of criminal law or procedure precludes the taking of a jury's verdict, first, on the charge including the pleaded circumstance(s) of aggravation. For these reasons, I am not satisfied that the course adopted by the trial judge, albeit unconventional, involved any error of law. Accordingly, I would dismiss the appeal [128] - [139].

[165]

GABRIEL, MR: My concern is that if the allegation of being armed is a particular of law included in the indictment, I think that my client cannot plead to that particular other than by denying it in a relevant sense. However, if it's a particular of fact said to aggravate the circumstances of an aggravated robbery, then it can be dealt with on the basis of a disputed fact type situation. I'm really in the state's hands. As I said to the state, it's really how they prepare the indictment at the end of the day. I certainly would have - - -

JENKINS J: Well, I understand that the offence is robbery.

GABRIEL, MR: Yes.

JENKINS J: And that the allegation of being armed is a circumstance of aggravation which affects the question of sentence.

GABRIEL, MR: Yes.

JENKINS, J: Now, looked at that way, I can't see why a judge can't decide that on sentence after a plea of guilty to robbery.

GABRIEL, MR: Yes. The aggravated robbery in company as well.

JENKINS, J: Well, yes, but he would plead guilty to robbery and then not guilty to whatever circumstances of aggravation were alleged - if he wanted to plead not guilty or guilty to others, if that was his wish, but I know that there are contrary views.

GABRIEL, MR: As I say, it really is in the state's hand. I concur with your Honour. If it's pleaded as an aggravated robbery with a particular of fact being that he was armed at the time, then that particular of fact is a matter of dispute that can be tried. If it's pleaded as aggravated armed robbery as a particular of law, then I think there's a difficulty arising. It's really a matter for the state though.

JENKINS J: But if it's pleaded as an element of the offence, then he has to plead not guilty to the offence.

GABRIEL, MR: Yes.

JENKINS J: Whereas I think, arguably, if it's pleaded as a circumstance of aggravation, it can be decided by the judge.

GABRIEL, MR: If it's an aggravating circumstance, factually, then the onus is borne by the state to prove it. It's a matter of disputed facts.

JENKINS J: Yes.

GABRIEL, MR: So I don't have a difficulty with that. I have no difficulty with the general concept of how this matter should proceed.

JENKINS J: What I will do is I will adjourn it for a status conference, and I think the state has to perhaps look at the issue more carefully and make sure that the correct approach is taken when the matter comes for the status conference, so it can either be listed for a jury trial, a short trial, or - - -

ANDRETICH, MS: I hear what your Honour's saying. I think the point my learned friend is making is probably a valid point, that what brings it into the jurisdiction, as your Honour is aware, of this court is the fact that it's an armed robbery as opposed to a robbery.

JENKINS J: I see, yes.

ANDRETICH, MS: And in those circumstances there is a differing view, and I think perhaps if we do go through to a status conference, then perhaps we can liaise with the court ahead of time if it can be dealt with by way of a one-day trial of the issues; if not, set it for trial, if that's what the state determines need be done.

JENKINS J: And I think even some judges take differing views, but that's another issue.

ANDRETICH, MS: Yes.

JENKINS J: It's a pity that the Code or the Criminal Procedure Act doesn't just say - - -

ANDRETICH, MS: No, it doesn't.

JENKINS J: - - - how circumstances of aggravation can be tried.

ANDRETICH, MS: Also logistically within our office I think the other matters can't really be sentenced on, your Honour, until this is resolved.

JENKINS J: No.

ANDRETICH, MS: Because it was a string of offences and I think that needs to be taken into account (ts 4 - 6).

[170]

JENKINS J: Thank you, Mr Gabriel. Please take a seat, Mr Gabriel. Now, we have an - actually, you can probably remain standing because we have an indictment dated 28 June. I understand the proposal is that he be arraigned on the indictment. From what I read, in respect of count 2, it is asked that the circumstances of aggravation be put separately and he will plead guilty to being armed and in company but not guilty to the bodily harm, is that - - -

GABRIEL, HR: No.

JENKINS J: No.

GABRIEL, MR: Can I just put it on record.

JENKINS J: Yes.

GABRIEL, MR: Look, the various allegations in the materials before the court that have been filed by the officer from the state are largely non contentious. We have pleaded to the prosecution notice. The only issue on the prosecution notice was the pleading of the particulars of law and in relation to the robbery matters to count 2 from the Como incident issues arise as to whether my client was aware of anyone being armed and whether he was aware that bodily harm was caused. It was reasonably foreseeable on my instructions and he understands that, that the allegation is that he was armed and that he used the weapon that he had armed himself with to cause bodily harm. He disputes being armed. He disputed causing the bodily harm and he denies knowing that anyone had armed themselves. There was a pair of secateurs that were picked up.

There was a further statement available from the complainant. The position we take at this end of the bar table is that if your Honour is content to take a plea with those provisos, we would be happy with a trial of issues about the matter. We are not going to be happy about it - it's embarrassing and unfortunate. Our account is there were others involved in the incident. They have not been charged. Another person was present. He was charged with some related offending and has been dealt with as a sentenced prisoner but he has appealed against the orders that were made in relation to sentence. We can see this is going to take perhaps a day of the court's time to resolve.

JENKINS J: What pleas do you think Mr Gillespie will enter in respect of count 2?

GABRIEL, Mr: I think it will be a plea of guilty but it was a dispute as to the issues that I've raised with your Honour.

JENKINS J: So there is really no need to put the separate allegations to him.

GABRIEL, Mr: No; issues of fact that will be disputed.

JENKINS J: He will plead guilty to the offence as charged but seek a trial of the issues of fact.

GABRIEL, Mr: We would suggest that if your Honour is content with that course I've suggested. We don't want to see at this end of the bar table a plea of not guilty being directed by the court with a jury trial which could take two days, I would have thought - at least.

JENKINS J: I had a look at it after I received the correspondence. I agree it's not altogether clear, but I have to say I came to the view that if someone does not perhaps, Mr Gillespie, you can take a seat whilst we discuss this issue. The way, I think, the word 'offence' is defined - I can't now - I've printed off the relevant provisions, but, of course, didn't bring them into court with me, did I. But the way the word 'offence' is defined, I think, in the Sentencing Act - 'offence' means any offence under a written law - maybe it was in the Criminal Code - it's unfortunate because now I can't find the provision which determined it, but what I came down to was that a circumstance of aggravation is an allegation of fact which renders someone liable to punishment and that an accused is entitled to a trial by jury in respect to any such matter.

I thought the way to resolve that if an accused did not admit a circumstance of aggressive [sic aggravation] was simply for the defence and the prosecution to agree that the matter could be tried by judge alone and then the judge would hold - - -

GABRIEL, MR: I have no difficulty with that approach. My position is that if there is an additional penalty following on from the matter of aggravation, then that is a pleading of law that causes difficulties. So if your Honour wishes to direct a plea of not guilty to take the position that it can be dealt with as a trial by judge alone, I would not seek to be further heard.

I have explained to my client that there is an arguable proposition that he is entitled to a trial by jury. His instructions are that as consistent with what has occurred from the outset when he was approached by the police. He does not wish to cause any inconvenience of any relevant nature. He has always acknowledged involvement in what has occurred and has given a clear and cogent account of events subsequent to being first confronted with the matter.

He was cooperative with the police. He gave them a statement that could have been used against the principal offenders, those who initiated this unfortunate sequence of very serious offending. He absolutely understands that, but he does not wish to see - and for the purposes of otherwise putting it on record, we have always maintained that this honourable court would have more than sufficient sentencing powers with the charges that we see would be available and open.

If there was a need for an issue to resolve the role of various participants in the matters, that may change the position on sentence in some respects, but it could be dealt with as a trial of issues. The maximum penalties for burglaries on dwellings in circumstance of aggravation are condign. The increase that is associated with an armed robbery, whilst having a jurisdictional issue for this court, we are not a person who fortunately is so bad that he is going to attract the maximum penalties. He is still capable of and is indeed showing considerable propensity and capacity for rehabilitation.

JENKINS J: Just let me try and work out how I got to this view again.

GABRIEL, MR: I don't know if my learned friend - I appreciate my learned friend is only acting on instructions from Mr Nicholls. I was going to suggest if there is a need for the court to be properly assisted, your Honour could request submissions. We could set a date provisionally to move things ahead and my learned friend, Mr Nicholls, and I could assist the court with some clarification so that everyone is clear on the issue.

As I say, this was the reason, in effective terms, why my client wasn't dealt with the co-accused as I would understand it. We have always had a problem about this first incident.

JENKINS J: You see, I think it came down to this. In section 7 of the - look, I follow the reasoning that a circumstance of aggravation was not a separate offence and therefore the provisions in the Criminal Procedure Act which say that if someone pleads not guilty to a charge, which is basically an offence, then you have a trial; so that didn't seem to include a circumstance of aggravation attached to an offence, but then when I looked at section 7 of the Sentencing Act it says this, subsection (2):

[176]

That is the distinction. I could have a trial of the issues if, say, he pleaded not guilty - start again. If he pleaded guilty to the offence but did not admit those circumstances of aggravation, then a judge could hold a trial of the issues in respect of whether the aggravating factors existed and sentence whether the trial judge came to the view they did or did not, but he would not be liable to the greater punishment that is provided for under the statute if he had been convicted of the offence with those circumstances of aggravation. Is counsel following?

GABRIEL, Mr: I'm at ad idem with your Honour.

JENKINS J: That is one version, but basically the state would then have to be happy for the matter to proceed without him being liable to the greater punishment provided for; so the maximum penalty would be different. On the other hand, if the state wants to have him sentenced on the basis that he is liable to the greater statutory penalty, then he has to be charged and convicted of committing the offence in those circumstances, so that would seem to me then, he can't be convicted in those circumstances either - well, unless he either pleads guilty with the circumstances of aggravation, or is found guilty by a jury, or he consents to trial by judge alone on those issues.

GABRIEL, Mr: Yes.

JENKINS J: Dr Barber, do you follow that?

BARBER, DR: From the state's perspective, your Honour, the state is seeking to pursue those issues of fact for the purpose of a greater penalty if they are established.

JENKINS J: But it's a question of whether you want simply a greater penalty because they are established as a matter of fact on a trial of the issues, or whether you want him liable to the maximum penalty of life imprisonment as opposed to 14 years. Do you see the distinction?

BARBER, DR: Yes, your Honour.

JENKINS J: I mean, really - well, it's a matter for the state, I suppose.

GABRIEL, Mr: May I just approach my client? I just need to talk to him very briefly.

JENKINS J: Yes.

BARBER, DR: The instructions I have, your Honour, are that the matter can be dealt with, and I accept what your Honour says about this issue, but still it can be dealt with by way of a trial of the issues.

JENKINS J: Well, I'm just not quite sure. I mean section 7 subsection (3) (a) is explicit: 'An offender is not liable to the greatest statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.'

BARBER, DR: Yes.

JENKINS J: Now, if he was to plead guilty to the offence as charged, we could have a trial of the issues, but that doesn't really seem to make sense if he doesn't in fact admit the circumstances.

BARBER, DR: Yes, I understand, your Honour.

JENKINS J: If he doesn't admit to the circumstances, he has to plead not guilty. I mean if he is only disputing - say in respect of the issue of whether it was committed in circumstances of aggravation that he was armed, now if the only issue is as to who was holding the weapon, then he could plead guilty to the offence in those circumstances of aggravation and we could have a trial of the issue as to who was holding the weapon, but if he says no-one had a weapon, he can't plead guilty to the circumstance of aggravation; he would have to plead not guilty and there would have to be a proper determination as to whether he should be convicted of committing the offence in the circumstance of being armed.

BARBER, DR: Yes, your Honour.

JENKINS J: Counsel is saying, 'Yes, yes,' but I'm really not sure that they understand the points I'm trying to make. Do the parties need some time to consider the position?

GABRIEL, MR: I am mainly concerned for my learned friend who is acting on the brief, but I absolutely understand what your Honour is saying in relation to section 7 subsection (2) that if as a matter of law the state wishes to establish the higher sentencing, then there has to be a trial.

If the state is happy to take a plea to a lesser charge but to argue particulars of fact that would be aggravating factors for what I think is section 8 of the Sentencing Act where the onus is borne by the state to prove aggravating factors, just as defence has to establish mitigating factors, then that would be a different issue; it would be a trial of issues.

JENKINS J: Yes.

GABRIEL, MR: And I have just confirmed with my client, because I said to him my thoughts on this are such your Honour has now effectively indicated that is how you see the law, and I have confirmed with him he does not with [sic wish] to inconvenience a jury. If there is a need for a trial of issues to advance this matter on the basis that the state want to prove, as a matter of law, he is guilty of all those matters in aggravation so that the record would show that he was a party to the matters or was a principal offender in relation to those matters, then there can be a trial by judge alone; so that I think assists us one way or the other.

The position I see is that that may well be, as your Honour has indicated at the outset, a way of just avoiding these issues. I don't know whether the state wants to have a trial with a jury and all that involves, but that's a matter for the state.

JENKINS J: I would then perhaps suggest that he be arraigned. If, as per your instructions, he pleads guilty to the offence simplicita or only with one circumstance of aggravation, then the state will then have to advise me whether it pursues those or whether it accepts the plea in satisfaction of the charge.

GABRIEL, MR: Just so it's clear for my client, with the greatest respect to him, he is not a very sophisticated person at times, it's a situation of he accepts it was a robbery and it was aggravated by being in company.

JENKINS J: Dr Barber, do you wish to obtain some further instructions before I proceed to arraign the accused?

BARBER, DR: I think that may be the preferable course, your Honour, in the circumstances where - I'm not sure that the file manager's understanding is as you have indicated this morning.

JENKINS J: I don't think the file manager had considered section 7 subsection (2) of the Sentencing Act, and it seems to me that that really is the nub of it.

BARBER, DR: In those circumstances, your Honour, perhaps it would be appropriate for me to seek an adjournment of these matters, although I appreciate that there have been a number of adjournments in the past (ts 21 - 27).

[182]

JENKINS J: That's right, and that's what I have said, and he makes the distinction, a helpful one, between aggravating factors, which are matters of fact which the judge can take into account or can determine, and circumstances of aggravation, which only a jury can determine, but there would be one step on from there, wouldn't there, to say that the accused can elect to have a judge alone try the circumstances of aggravation?

NICHOLLS, MR: Yes.

JENKINS J: And, as I understand it, that is what is going to be proposed here if he pleads not guilty to the circumstances of aggravation. Mr Gabriel?

GABRIEL, Mr: I had understood the state would make the application. I have sent correspondence and indicated that we would consent to it.

JENKINS J: All right.

GABRIEL, Mr: I have also adverted my learned friend to the case of Edwards from last year, of Heenan J - I apologise, I don't have the citation or a copy available suggesting that there may be some difficulties with that application.

JENKINS J: And why would that be?

GABRIEL, MR: To some level the issues here are going to be matters of what was reasonable in the circumstances, and the issues might well just be purely matters that would normally be left for a jury. I don't have the provisions in front of me. I apologise, your Honour.

NICHOLLS, Mr: What we really need to know, your Honour, is whether or not the accused consents to the procedure of trial by judge alone in those circumstances.

GABRIEL, Mr: We have indicated previously that if the state makes the application we don't want to be heard. I have pointed out to my learned friend that we think that there may be some difficulties, but that's a matter for the state. I'm not instructed to make an application, and I haven't done that.

JENKINS J: So you weren't proposing to make the application.

GABRIEL, Mr: I haven't done an affidavit, and I can see some issues in the legislation, but it's a matter for the state and the court.

JENKINS J: But if the state makes the application, you would consent to it? Let's get down to tin tacks.

GABRIEL, Mr: I would have to advise my client carefully, but I think he would say that we wouldn't want to be heard.

JENKINS J: You might have to go further than that I think if an application is made.

GABRIEL, Mr: Sorry, I apologise.

JENKINS J: You would have to make a decision as to whether you object to it or not.

GABRIEL, Mr: The legislation does require that the accused has to consent to an application by the state.

JENKINS J: We're getting ahead of ourselves I suppose. I didn't think there was any issue about that.

GABRIEL, Mr: No, there's no issue in a relevant sense (ts 21 - 22).

[189]

JENKINS J: Take a seat, Mr Gillespie. We have then pleas of not guilty to counts 2 and count 7. What is the state's application in respect of those counts? I suspect, looking at the provisions about trial by judge alone - not that I suspect, I say it more strongly than that - I think it is appropriate in the circumstances that the state, if it wishes to make an application for trial by judge alone, that it does so in writing, supported by an affidavit, for the same of formality.

NICHOLLS, Mr: I am inclined to pursue that application, your Honour, but I will only pursue it if the accused consents to the procedure, and I seem to have some different answers in that regard. I think on Thursday it was stated that it would be consented to. I just want that position to be unequivocal before I make that application.

GABRIEL, Mr: May I approach my client?

JENKINS J: I think that it's a decision best made out of court rather than in the heat of the battle, so I will leave it for the parties to liaise about that. What I will direct, Mr Nicholls, is that if the state intends to make an application that it file it within the next fortnight, it will then be listed and it should come back before me for determination seeing I'm familiar with the issues. Otherwise I would put Mr Gillespie off to a status conference, sooner rather than later, so that trial dates can be set. Any opposition to that proposal, Mr Nicholls?

NICHOLLS, Mr: No, your Honour. I don't know how long my learned friend requires to take instructions from his client as to the trial by judge alone issue, but if it is a no, then certainly the state would be in a position to list for a jury trial today.

JENKINS J: We could list it provisionally today.

GABRIEL, Mr: Can I just say is all I'm looking for is the materials. My client will consent. My only concern is whether there is a proper basis for the application as an officer of the court. That's the issue. As I say, my client's position is he should be able to see the supporting materials and to assess the affidavit that has to be filed under the Criminal Procedure Regulations (ts 29 - 30).

[193]

MURRAY J: Mr Gabriel will confirm, but as I understand it, Mr Gabriel, from the note that was made for me of previous proceedings, is that the accused would plead guilty - at the moment he's pleaded to count 2.

GABRIEL, MR: Yes, sir.

MURRAY J: That's right. He would plead guilty to the robbery and that he was in company but he would deny the circumstances of aggravation that he was armed with the secateurs and that he did bodily harm to Ms L.

GABRIEL, MR: Yes, your Honour.

MURRAY J: Okay. Now, what's the state's position then in relation to that, Ms Mattocks?

MATTOCKS, MS: Your Honour, I understand it is being looked at, the options of that proceeding. It's anticipated that the disputes will take two days to hear at a jury trial, your Honour. I understand that's the preferred cause of action.

MURRAY J: So you are not proposing to abandon - you are not instructed that the prosecution will abandon those allegations in relation to count 2?

MATTOCKS, MS: No, your Honour, the dispute will have to proceed to a trial as far as the state is concerned.

MURRAY J: So you want a trial of that issue.

MATTOCKS, MS: Yes.

MURRAY J: All right. It won't be a jury trial.

GABRIEL, MR: Might I assist?

MURRAY J: Yes, Mr Gabriel.

GABRIEL, MR: Her Honour, Jenkins J, looked very carefully at this issue and we certainly don't want to cause any inconvenience to the state, the courts or the community, but her Honour took the decided view that because those allegations were particularised on the indictment then the matter would require, if sentence was to be passed under the Sentencing Act, I think section 7, it would have to involve a trial.

The proposition we put to the state was that we could have those particulars excluded from the indictment and that the issues of fact, ie the involvement of the weapon and my client's alleged use of it, could be resolved for sentencing purposes as a hearing of issues without the need for a jury. Now, I understand the state considered that position very carefully, and in light of her Honour's ruling have determined at this stage at least, unfortunately as far as we are concerned, it's entirely within their parameters, to do so it needs a jury trial.

MURRAY J: It's a situation that has arisen before. The relevant decision is one of mind [sic mine], a case called Majok [2005] WASC 13. It went to the Court of Appeal in relation to sentences I passed but not in relation to this point. The reasons that I gave then dealt with exactly this situation where there is a plea to the robbery, a conviction can be recorded then in relation to the robbery, and the question which arises in relation to the circumstances of aggravation is a question relevant to the sentencing framework within which the court is to pass sentence.

At least relevantly in a robbery situation as you understand, the relevant sentencing framework can be affected, not by the addition of doing bodily harm but being armed. It's that circumstance of aggravation which takes the maximum penalty to life imprisonment. So they are questions which don't arise except if you are convicted of the offence. Now, if you are pleading not guilty and you go to trial, you go to trial for the robbery and they would prove the robbery and if you are convicted by the jury then the jury would be asked questions about and make separate findings about the circumstances of aggravation.

But the jury trial only gets to deal with the circumstances of aggravation because it is dealing with the question of the guilt or innocence of the robbery. If there is no issue about the guilt or innocence of the robbery, the proper course, if you want the trial of issues to take place, is to plead guilty to the robbery, deny the circumstances of aggravation that you wish to contest.

Evidence, if it's thought to be sufficiently important to proper sentencing for the case can then be led and the court can make a finding about the existence or otherwise of the circumstance of aggravation, depending upon whether the judge is satisfied of it beyond reasonable doubt necessarily because it is a circumstance of aggravation. So that's the process and if on the day you plead guilty to the robbery and admit one circumstance of aggravation and deny the other two, there would be no empanelment of a jury.

GABRIEL, MR: I'm obliged for your Honour's assistance in that regard.

MURRAY J: So what should I do? Send it off to the 10th on the basis that you might take that course, I suppose.

GABRIEL, MR: We have already indicated willingness to take that course.

MURRAY J: Yes.

GABRIEL, MR: I apologise to the court, I can't recall whether that case was cited in the previous discussions involving her Honour and I don't know whether it's been brought to my learned friend Mr Nicholls', who is the file manager, attention. We didn't seek to be heard in relation to the issue. It was an issue that her Honour raised, sought assistance from counsel as to and in the circumstances it was the direction previously made. If your Honour wishes to make a direction that the matter proceed as a trial of issues without a jury - - -

MURRAY J: I think there's no problem, and I would certainly propose to just send everything off to the 10th and then he can be arraigned and enter his pleas, but as to whether or not a jury is to be summoned for that date, it would be important, I think, to know in advance rather than to trouble these people, what course the defence proposed to take.

GABRIEL, MR: I have already indicated the position, your Honour, that we don't wish to be heard.

MURRAY J: Yes.

GABRIEL, MR: We are happy to be dealt with on any basis. We merely wish to refute those issues that have been alleged as aggravating factors.

MURRAY J: Mr Gabriel, I am obliged to you for making the position clear. Ms Mattocks, I think what I should do is adjourn this matter to the 10th on the basis that there will be pleas of guilty entered, but there will in all likelihood in relation to count 2, need to be a trial of issues of fact in relation to the existence or otherwise of the circumstances of aggravation as part of the sentencing process.

MATTOCKS, MS: Yes, your Honour. Just outlining from the history in relation to this matter, her Honour, Jenkins J, indicated that on 4 July 2011 that if the state were to make an application for a trial by judge alone should the accused enter the plea of guilty to the substantive charge and only a couple of the circumstances of aggravation be in dispute then the state was to do so within two weeks of that date.

MURRAY J: I'm afraid in relation to that, you see, I'm taking a different view.

MATTOCKS, MS: Yes, your Honour, I understand, and it's for that - the state decided not to make that application. Your Honour, I understand that Mr Nicholls, the file manager, is aware of your views in relation to whether it's a trial to proceed by way of trial by the issues, circumstances of aggravation, should proceed as a trial of the issues or whether it should proceed to be a jury trial. I understand that there is actually some divergence in the judicial opinions on this point do not, obviously with respect, to honour but there are other opinions and there is - - -

MURRAY J: I'm sure you are right.

MATTOCKS, MS: Yes, your Honour. There are opinions that it's for a jury to determine such matters. It was for that reason that the state thought we will leave it as a matter of course in - - -

MURRAY J: I think for better or worse I have cut the Gordian knot and the order I make is that it will go on to the 10th on the basis that there is a clear understanding that pleas will be entered and that when arraigned the accused would contest those two circumstances of aggravation and if they are to be relied on for sentencing purposes that there will be a trial of that issue (ts 38 - 42).

[230]

It is clear from the portions of transcript which I have set out that from the very first occasion upon which Mr Gillespie appeared in the Supreme Court it was his objective to obtain a trial of the issues which he contested in relation to the charge which became count 2 on the indictment by judge alone, rather than by judge and jury;
Viewed objectively, there was a rational forensic purpose to be served by the achievement of that objective;
At no point in the procedural course which was followed did Mr Gillespie depart in any way from his pursuit of that objective;
It is a fair inference that counsel appearing on his behalf was aware of the divergent views on the procedural question from the time of the first appearance in the Supreme Court, but in any event those divergent views were clearly enunciated in his presence in subsequent hearings before Jenkins J and in the hearing before Murray J on 25 August 2011;
Counsel representing Mr Gillespie expressly consented to the procedural course proposed by Murray J at the hearing on 25 August 2011, and again at the commencement of the trial of the issues later that year;
If, instead of following that course, an application had been made for an order that those issues be tried by a judge alone under s 118 of the Criminal Procedure Act, nothing would have been included in the papers filed in support of such an application which was not already known to Mr Gillespie and his counsel;
All the pre-conditions for the making of such an order had been met, including Mr Gillespie's consent to the making of such an order, and it is accepted that there is 'an irresistible inference' that Murray J considered that it was in the interests of justice for the contentious issues of aggravation to be tried by a judge sitting alone;
If the procedural course propounded by Jenkins J had been followed, there can be no doubt that an order for trial by judge alone would have been made; and
The course followed at trial was exactly the same as the course which would have been followed if an order had been made for trial by judge alone under s 118 of the Criminal Procedure Act.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (451 paragraphs)

GILLESPIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 149 (19 June 2013)

Legislation Cited (8)

Cases Cited (14)