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[1996] HCA 46
High Court of Australia
1996-03-15
Gummow JJ, McInerney J, McHugh JJ
Original judgment source is linked above.
High Court of Australia Dawson, Toohey, Gaudron, McHugh and Gummow JJ Maxwell v The Queen (FC 96/006) [1996] HCA 46
The appellant was charged with the murder of his wife. On 25 October 1993, before McInerney J in the Supreme Court of New South Wales, he pleaded not guilty to the charge of murder but guilty of manslaughter. The prosecution accepted that plea in satisfaction of the indictment as it was entitled to do under s 394A of the Crimes Act 1900 NSW. That section provides:
Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned. The prosecution accepted the plea upon the basis of the appellant's diminished responsibility. Diminished responsibility reduces murder to manslaughter under s 23A of the Crimes Act which relevantly provides:
(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.
(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.
(3) A person who but for subsection (1) would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
The appellant having pleaded guilty, the prosecution placed certain material before McInerney J for the purpose of enabling him to pass sentence upon the appellant. That material included reports from a psychiatrist, Dr Shand, dated 12 October 1993 and 19 October 1993 respectively. In the first of those reports, Dr Shand does not appear to have expressed any view upon the availability to the appellant of the defence of diminished responsibility. However, in the later report he said:
In the light of the information available, including Dr Strum's [the appellant's psychiatrist] detailed and thorough report, and particularly in view of the history from the accused, whose description denies premeditation and generally attributes the killing to accident, I consider that the M'Naghten Rules do not apply. However, as stated in my previous report, the defence of Diminished Responsibility does apply, in view of the abnormal state of mind at the time of the homicide, and for some considerable time before. If the accused did pull the trigger resulting in the death of his wife, I would still consider that Diminished Responsibility applies.
Counsel for the appellant tendered the report of Dr Strum, dated 6 October 1993, which contained the conclusions:
Regarding the question of psychiatric defences, clearly Mr Maxwell was not psychotic and [M'Naghten's] rule does not apply. Automatism is also unavailable. The memory gaps are explained by his heightened emotions. This leaves diminished responsibility and I believe Mr Maxwell does have such a defence available to him. Both counsel for the appellant and the prosecutor addressed the court in relation to sentence. McInerney J indicated he would consider the matter and remanded the appellant in custody until 29 October 1993 for sentence.
On 29 October 1993, McInerney J delivered a judgment in which he said:
The medical testimony in this case I believe raises clearly the question when diminished responsibility is a consideration what is the respective role of the medical experts and the role of the tribunal of fact, be it a jury of twelve or, as in this case, a judge. He concluded: The tribunal of fact in this case has been deprived of the opportunity to determine two of the important matters in this case, namely did the abnormality of mind impair the accused's responsibility for his act, and secondly was that impairment substantial? In my view it is not for the psychiatrists to make that statement as proof; it is a matter for the tribunal of fact having regard to the psychiatric opinions and having regard to the material and circumstances as to this crime established before it.
In the circumstances therefore I have considerable doubt about whether I can accept the plea of not guilty to murder but guilty to manslaughter on the basis of diminished responsibility, and I wish to hear submissions from the Crown and the defence on the question of whether in the circumstances I am entitled to reject this plea. In any event, assuming I find I was not so entitled, I would require proof by the accused on the balance of probabilities of those matters he intends to rely on, and when I say proof I mean proper legal proof sufficient to enable the psychiatrists in question to express an opinion on the question.
The hearing was adjourned and resumed on 10 December 1993.
Upon the resumed hearing the prosecutor tendered a further report dated 2 November 1993 from Dr Shand which he said he made "as the result of finding and reading the Brief of Evidence which had become separated from the main file and therefore was previously unread". In the further report Dr Shand expressed the following conclusion:
From the information now available to me, I consider that the accused was not suffering from a significant degree of psychiatric disorder, sufficient to diminish his responsibility, for killing his wife, whatever may have been previous nervous disorder, referred to by Dr Strum. From the accumulated information the accused suffers from a long standing personality disorder. The prosecutor then submitted that McInerney J should reject the appellant's plea of guilty "in the light of the further evidence from Dr Shand". The prosecutor did not, however, seek to withdraw from his election to accept the appellant's plea. Counsel for the appellant submitted that the judge had no power to reject the appellant's plea. The judge concluded that he had power to do so and did so. However, he certified that his judgment or order was a proper one for determination on appeal and the appellant appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 NSW.
Somewhat unusually, since the appeal was against the order made by him rejecting the appellant's plea, McInerney J formulated two questions for the consideration of the Court of Criminal Appeal. They were:
The Court of Criminal Appeal, in dismissing the appeal, answered both questions in the affirmative.
Thus the Court of Criminal Appeal held that McInerney J had the power to reject the appellant's plea. It also held that the prosecution was entitled to withdraw its acceptance of the plea of guilty just as the appellant would have been entitled, with the leave of the court, to withdraw the plea. It is from the decision of the Court of Criminal Appeal that the appellant appeals to this Court.
The appellant's argument is that McInerney J was in no position to reject his plea of guilty to manslaughter because he had already been convicted of that charge. Further, the appellant contends that any attempt by the prosecution to proceed with the charge of murder would be successfully met with a plea of autrefois convict because of his conviction for manslaughter [17] . That argument must fail if the appellant was never convicted of manslaughter.
The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked [1] . On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur [2] :
The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court. (Emphasis added.) The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter [3] . 1. See Cobiac v Liddy (1969) 119 CLR 257 at 271. 2. (1844) 7 Man & G 481 at 504 [135 ER 193 at 202]. 3. See Wemyss v Hopkins (1875) LR 10 QB 378 at 381.
The older authorities have been collected in a number of cases and no point is to be served by rehearsing them here [4] . In R v Tonks the Victorian Full Court said [5] :
The review of the authorities which we have made satisfies us that a plea of guilty does not of its own force constitute a conviction. In our opinion it 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. It may be that even a determination of guilt will not in all cases amount to a "conviction", for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment [6] ; but there must at least be 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 of the question of guilt. And if there can be no conviction till then, neither can there be a successful plea of autrefois convict. 1. See R v Tonks [1963] VR 121; Cobiac v Liddy (1969) 119 CLR 257 at 271-273; Griffiths v The Queen (1977) 137 CLR 293; Richards v The Queen [1993] AC 217. 2. R v Tonks [1963] VR 121 at 127-128. 3. See Burgess v Boetefeur (1844) 7 Man & G 481 [135 ER 193] and Hale's Pleas of the Crown, vol 1, p 686.
That passage was regarded as correctly stating the law by Gibbs J in the Supreme Court of Queensland in R v Jerome and McMahon [7] where he said:
In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons. 1. [1964] Qd R 595 at 604.
And that view was implicitly (explicitly in the case of Aickin J [8] ) adopted by a majority of this Court in Griffiths v The Queen [9] . 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 [10] , a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [11] :
It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. For that reason, it seems to us that the hesitancy displayed by Gibbs J, when he said in the passage cited above from R v Jerome and McMahon that a determination of guilt may "even perhaps" be made "by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained", was justified. 1. See Griffiths v The Queen (1977) 137 CLR 293 at 313-314. 2. [1971] AC 481 at 488.
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, 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.
In a recent decision, Richards v The Queen [12] , the Privy Council observed that the underlying rationale of autrefois convict is to prevent duplication of punishment and that, for the application of the doctrine, finality of adjudication is essential. They went on to say [13] :
The need for finality of adjudication by the court whose decision is relied on to found a plea of autrefois convict is even more clearly apparent where a defendant has pleaded guilty. Not only may the defendant be permitted, in the discretion of the court, to change that plea at any time before sentence, but, when 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, it appears to their Lordships, be no finality in that "acceptance" until sentence is passed. 1. [1993] AC 217. 2. Richards v The Queen [1993] AC 217 at 226-227.
That passage reflects a remark of Lord Reid in S v Recorder of Manchester [14] that "[i]t all depends upon whether the plea of guilty was unequivocal and finally accepted or was equivocal and only accepted provisionally". Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter. With respect, that seems to us to be a better way of viewing the process than that suggested by Aickin J in Griffiths v The Queen [15] , namely, that although a remand for sentence might amount to a conviction, a change of plea operates to set aside the conviction.
In the present case it is clear that McInerney J did not purport to dispose of the matter before him by accepting the appellant's plea of guilty, other than for the purpose of embarking upon the sentencing process. By remanding the appellant for sentence he did not accept the plea in any way which amounted to a determination of guilt and, hence, a judgment of the court. There were no unusual features in the course adopted by the judge which would displace the ordinary consequence that a determination of guilt upon a plea of guilty would take place only upon sentence being passed upon the appellant. That did not occur in this case.
This means that the appellant was not precluded from seeking leave of the court to change his plea should he have wished to do so. But he did not wish to do so. The rejection of the plea by the court is another matter. True it is that no conviction stood in the way, but in our view McInerney J had no power to take such a course.
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise [16] .
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered [17] . But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin [18] where the trial judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said [19] :
It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance. 1. See Hawkins, Pleas of the Crown, 8th ed (1824), vol 2, p 466; R v Jerome and McMahon [1964] Qd R 595; P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751; (1978) 67 Cr App R 305; R v Clayton (1984) 35 SASR 232; Marlow v The Queen [1990] Tas R 1. It would seem that the references in Griffiths v The Queen (1977) 137 CLR 293 (at 302, per Barwick CJ; at 317, per Jacobs J; at 334, per Aickin J) to the fact that a court is not obliged to accept a plea of guilty envisage these circumstances. 2. (1904) 21 WN (NSW) 233. 3. R v Martin (1904) 21 WN (NSW) 233 at 235.
In this case, however, the appellant pleaded not guilty to murder, which was the offence with which he was charged, but guilty of manslaughter, an offence with which he was not charged. That course was sanctioned by s 394A of the Crimes Act and, the prosecutor having elected to accept the plea of guilty, there was no basis upon which the plea could be treated otherwise than as if the accused had been charged with manslaughter and had pleaded guilty to that charge. Of course, had the prosecutor elected not to accept the plea of guilty of manslaughter, the trial of the accused for murder would have proceeded. The practical effect of the prosecutor's acceptance of the plea of guilty to manslaughter was that he led no evidence upon the charge of murder in the indictment.
In England it appears to have been thought at one time that a trial judge had a discretion to refuse to allow the acceptance by the prosecution, in satisfaction of the indictment, of a plea of guilty to a lesser offence than that charged [20] . But that view is no longer held. In R v Coward [21] Lawton LJ, delivering the judgment of the Court of Appeal, said:
It is for prosecuting counsel to make up their own minds what pleas to accept. If the judge does not approve, he can say so in open court, and then the prosecution will have to decide what course to take. And in R v Jenkins [22] it was indicated that the Court of Appeal had accepted for some time as proper the approach outlined in a document headed "Guidance to Prosecution Counsel" issued by the Bar Committee of the Senate of the four Inns of Court and the Bar. That document reiterated that it was the responsibility of counsel to decide whether to offer any evidence against the accused and whether to accept any pleas tendered by him. It was also said that in reaching a decision counsel may invite the trial judge to assist him but is never under a duty to do so. 1. See R v Soanes [1948] 1 All ER 289; (1948) 32 Cr App R 136; R v Broad (1978) 68 Cr App R 281 at 284. 2. (1979) 70 Cr App R 70 at 76. 3. (1986) 83 Cr App R 152 at 154.
Archbold [23] sets out the Farquharson Committee Report, 1986, in which it is said:
In accepting a plea of guilty to a lesser offence or offences Counsel for the Prosecution is in reality making a decision to offer no evidence on a particular charge. It follows in our opinion that if Counsel is entitled to decide whether he should offer no evidence on the Indictment as a whole, as we think he is, then correspondingly, it must be for him to decide whether or not to proceed on a particular count in an Indictment. The Report goes on to add certain qualifications which do not, however, affect the basic principle expressed in that passage. 1. Criminal Pleading, Evidence and Practice (1995), vol 1, par 4-77.
It would thus appear that in England the position is now as it always has been in this country. Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial [24] . Reliance was placed by the respondent upon the Canadian case of R v Naraindeen [25] in which the Court of Appeal for Ontario held that a trial judge could refuse to accept an accused's plea of guilty of a lesser offence in satisfaction of a charge of a more serious offence brought against him. However, s 606(4) of the Canadian Criminal Code is in a form different from that of s 394A of the Crimes Act and provides that "the court may, with the consent of the prosecutor" accept such a plea. Moreover, the court in reaching its conclusion placed reliance upon the earlier English decisions which have never reflected the practice in this country and do not now reflect the practice in England.
In R v Brown [26] the New South Wales Court of Criminal Appeal pointed out that a court may, in some circumstances, where the prosecution charges an offence to which the accused is prepared to plead guilty but which is less serious than the evidence indicates, regard it as an abuse of process. They added [27] :
However, with respect to the learned judge in the present case, we are unable to accept the proposition which led him to his decision [to stay proceedings], that is to say, that where the Crown elects to present a lesser charge notwithstanding that uncontested evidence establishes the commission of a more serious offence, that necessarily involves an abuse of the process of the Court. In R v Brown the indictment charged the accused with the offence to which he was prepared to plead guilty and the trial judge was not invited to approve anything. But s 394A of the Crimes Act expressly gives the Crown the right to elect to accept a plea of guilty to a lesser offence than that charged in the indictment and there is no reason to think that a court has the power to supervise the making of that election or to intervene, save to prevent an abuse of process, any more than it has where the accused pleads guilty to a lesser offence which is charged in the indictment. The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the court. Indeed, the court would seldom have the knowledge of the strengths and weaknesses of the case on each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect, as in many others, "is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system" [28] . 1. (1989) 17 NSWLR 472. 2. R v Brown (1989) 17 NSWLR 472 at 479-480. 3. R v Apostilides (1984) 154 CLR 563 at 575.
In R v Brown [29] the Court of Criminal Appeal recognised the substantial practical limitations upon the power of the courts to control the exercise by prosecuting authorities - in that case the Director of Public Prosecutions - of their discretion in such matters as the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge. The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.
In this case, McInerney J did not purport to act to save the Court from an abuse of its process. He rejected the appellant's plea of guilty in the exercise of a discretion which he believed he had but which, in our view, he did not have. Moreover, he appears to have done so in the belief that, notwithstanding the acceptance of the plea of guilty to manslaughter upon the basis of diminished responsibility, it was the duty of the prosecution to establish to his satisfaction that the accused was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts. 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. Whether McInerney J himself thought that the material placed before him was insufficient to establish diminished responsibility was no more relevant than is the view of a trial judge who disagrees with the verdict of a jury but is nevertheless required to sentence upon the basis of that verdict. In R v De Simoni [30] Gibbs CJ pointed out that a sentencing judge may be required by reason of the charge selected by the prosecution to take an artificially restricted view of the facts. He said:
This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty. In sentencing the accused, McInerney J was required to proceed upon the basis that, in killing his wife, the accused's mental responsibility for his acts was substantially impaired by reason of an abnormality of mind, notwithstanding any reservations which he may have entertained had the matter been one for his decision. 1. (1981) 147 CLR 383 at 392.
As we have said, the prosecution did not seek before McInerney J to withdraw its election to accept the accused's plea of guilty, but as the matter must go back to the trial judge, it is desirable that we express our agreement with the view taken in the Court of Criminal Appeal that the prosecution is entitled, before sentence, to withdraw its acceptance of a plea of guilty made pursuant to s 394A. That section does not deny such a course and it is inappropriate to regard the prosecution as bound by its election if the interests of justice require its withdrawal [31] . 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 with regard to its acceptance of a plea. That means, however, that before the prosecution may withdraw its acceptance it must obtain the leave of the court. Obviously that is in the interests of justice because an accused may, in reliance upon the prosecution's acceptance of his plea, have taken a course which would prejudice him - by making admissions, for example - should the acceptance be withdrawn. In those circumstances, leave should be refused.
For these reasons we would allow the appeal. In doing so it is convenient to answer the questions formulated by McInerney J, that being the course taken by the Court of Criminal Appeal. We would answer the first question: Yes, but only with the leave of the court. We would answer the second question: No, unless it is not a genuine plea. We would set aside the order made by McInerney J and remit the matter to him to proceed in accordance with the reasons of this Court.
The appellant was indicted on a charge of murdering his wife. They were separated and had been involved in proceedings in the Family Court over custody of their child.
Section 18(1)(a) of the Crimes Act 1900 NSW (the Act) identifies the circumstances in which murder "shall be taken to have been committed". By s 18(1)(b), "Every other punishable homicide shall be taken to be manslaughter". The punishment for murder is penal servitude for life (s 19A). The punishment for manslaughter is variable, ranging from penal servitude for twenty-five years to discharging the jury from giving any verdict (s 24). Section 23A, which was introduced in 1974, provides for a conviction of manslaughter instead of murder where, at the time of the acts or omissions causing the death, the accused was suffering from such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions, in other words the defence of diminished responsibility. The section casts the onus upon the accused to prove that, by virtue of the provision, he is not liable to be convicted of murder (s 23A(2)).
The appellant indicated to the Crown that he would plead guilty to manslaughter. When he was arraigned before McInerney J in the Supreme Court of New South Wales on 25 October 1993, he pleaded "Not guilty to murder but guilty to manslaughter". The Crown informed his Honour that it accepted the plea to manslaughter "on the basis of diminished responsibility in full satisfaction of the indictment". The Crown's acceptance of the plea was done pursuant to s 394A of the Act which reads:
Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.
McInerney J then received evidence for the purpose of determining the sentence to be imposed on the appellant. The Crown's evidence included a summary of facts, records of interview, witness statements and photographs. It also contained a report dated 12 October 1993 from a psychiatrist, Dr Shand, and an addendum to the report, dated 19 October 1993. On the appellant's behalf there was a report dated 6 October 1993 from another psychiatrist, Dr Strum, and a bundle of references. Both psychiatrists expressed views consistent with diminished responsibility in terms of s 23A of the Act. For this reason the Crown decided to accept the plea of guilty to the lesser offence.
After hearing submissions from counsel on the matter of sentence, his Honour said:
I will consider this matter. I will remand the prisoner in custody until Friday 29 October for sentence.
When the hearing resumed on 29 October McInerney J spoke at length of the reservations he had as to whether the circumstances of the case, as they emerged from the evidence tendered, truly warranted a finding of diminished responsibility. In particular, he expressed serious reservations about the conclusions reached by the psychiatrists. These, his Honour said, were largely based on the appellant's history which in significant respects was not verified. He said:
It is not necessary for me to go into the history obtained by both doctors on which they sought to establish that the accused was suffering from diminished responsibility, but suffice it to say not only is it unsworn testimony, and in that sense is not evidence before me, but in many respects it is contradictory and in my view most unsatisfactory. McInerney J continued: In the circumstances therefore I have considerable doubt about whether I can accept the plea of not guilty to murder but guilty to manslaughter on the basis of diminished responsibility, and I wish to hear submissions from the Crown and the defence on the question of whether in the circumstances I am entitled to reject this plea. In any event, assuming I find I was not so entitled, I would require proof by the accused on the balance of probabilities of those matters he intends to rely on, and when I say proof I mean proper legal proof sufficient to enable the psychiatrists in question to express an opinion on the question.
The Crown suggested that in the circumstances it might be better to call the psychiatrists to give evidence. Counsel for the appellant objected, saying: "I want to make clear my position right now, and it is our submission that your Honour does not have the right to reject the plea." McInerney J said that he would want to hear argument on that point. Counsel added that although the judge had spoken of the tribunal of fact, at this point his Honour was no longer a tribunal of fact but was "now in the sentencing stage". To that his Honour responded:
I did not convict him on the last occasion. Mr Williams [counsel for the appellant], if you can convince me of that then I will accept it, but I want some authority on it. The appellant was again remanded in custody, this time to a date to be fixed.
On 2 November 1993, before the hearing had resumed, Dr Shand issued a further report. His reason for doing so was that he had located the "Brief of Evidence" which had been separated from the "main file" at the time he prepared his earlier report and addendum. In his latest report Dr Shand concluded that the appellant "was not suffering from a significant degree of psychiatric disorder, sufficient to diminish his responsibility, for killing his wife".
On 10 December 1993 the hearing resumed. Dr Shand's report of 2 November 1993 was admitted into evidence. McInerney J said that two questions had arisen, the first, whether the Crown could withdraw its acceptance of the plea of guilty to manslaughter and, the second, whether a trial judge had power to reject a plea once accepted by the Crown. His Honour did not express a view on the first question as it had not been argued. On the second question, he said:
I am of the opinion that in appropriate circumstances, however, where the Crown accepts a plea to a lesser charge pursuant to s 394 of the Crimes Act, the Court has the power to reject such a plea if the Court is satisfied the Crown's decision to accept such a plea is not justified on the evidence tendered before it. His Honour then, for the reason he had expressed earlier, formally rejected the plea of manslaughter and stood the matter over for a hearing in the Court of Criminal Appeal of two questions:
The matter came before the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 NSW which permits an appeal against an interlocutory judgment or order in the circumstances there mentioned. The Court answered each of the questions framed by McInerney J in the affirmative, "relating them, of course, to the facts and circumstances of the case" [32] , and accordingly dismissed the appeal.
Gleeson CJ, with whom Hunt CJ at CL and Badgery-Parker J agreed, said that the appellant had not been "formally convicted of manslaughter, or acquitted of murder" [33] . His Honour did not elaborate this conclusion. But he said that "where the Crown elects to accept a plea of guilty under s 394A of the Crimes Act 1900, the trial judge has a residual discretion to reject the plea where the interests of justice so require" [34] . He also rejected the argument that by acceptance of the plea "the Crown had made itself party to a bargain from which it could not withdraw" [35] .
There is an underlying question as to whether it is crucial to the appellant's argument that he had been convicted of the offence of manslaughter before McInerney J held that he had power to reject the plea of guilty to that offence and proceeded to exercise the power. But it is easier to deal with that matter after a consideration of whether the appellant was in truth convicted of manslaughter.
That question, in the present case, is not one of statutory construction. The Act does not use the term "convicted" in any relevant context. And the Act does not prescribe an allocutus whereby an accused pleads guilty or the jury returns a verdict of guilty and the accused is asked whether he has anything to say why sentence should not be passed upon him [36] .
The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court. However, in Cobiac v Liddy [38] , Windeyer J said that if "more strictly legal sense" meant use by lawyers: "I think the opposite of what he said is more accurate." In the same case McTiernan J said of "conviction" [39] : [It] may mean a mere determination of guilt or a finding of guilt plus a judgment on the finding. The meaning of "conviction" generally depends on determining the sense in which it is used in the statute under consideration [40] . For example, where "conviction" is used in the statutory context of sentencing guidelines, it clearly refers to the determination of guilt alone [41] . While in the present case an understanding of conviction or convicted is to be considered in the general context of the Act, there is nothing in the Act relevantly to suggest that the common law understanding of these terms has been displaced [42] . 1. (1844) 7 Man & G 481 at 504 [135 ER 193 at 202]. 2. (1969) 119 CLR 257 at 271. 3. Cobiac (1969) 119 CLR 257 at 267. See also S v Recorder of Manchester [1971] AC 481 at 489, per Lord Reid; at 502, per Lord Morris of Borth-y-Gest; at 506, per Lord Upjohn. 4. Burgess v Boetefeur (1844) 7 Man & G 481 at 504 [135 ER 193 at 202]; S v Recorder of Manchester [1971] AC 481 at 489, per Lord Reid; at 502, per Lord Morris; at 506, per Lord Upjohn; Director of Public Prosecutions v McCoid [1988] VR 982 at 988; R v Collins (1994) 76 A Crim R 204 at 210; Della Patrona v Director of Public Prosecutions [No 2] (1995) 38 NSWLR 257 at 263-266, per Kirby P (Priestley and Meagher JJA agreeing). 5. Cobiac v Liddy (1969) 119 CLR 257; R v Allinson (1987) 49 NTR 38 at 42. 6. In Frodsham v O'Gorman [1979] 1 NSWLR 683, the meaning of "conviction" in the context of the Crimes Act 1900 NSW was considered from the common law position. The same approach was taken in relation to the Queensland Criminal Code: R v Collins (1994) 76 A Crim R 204 at 210.
It is important not to lose sight of the purpose for which the inquiry is being pursued in the present case. It is not because the result will determine the operation of some statutory provision. Rather it is to look at the situation which arose here and, in the light of what took place, to determine the extent of the trial judge's power to reject the plea of guilty to manslaughter.
In R v Tonks [43] , the Full Court of Victoria held that "[a] conviction is a determination of guilt" but that a plea of guilty was not in itself a conviction as there had to be some act on the part of the court to indicate a determination of the question of guilt. This was followed by Gibbs J in R v Jerome and McMahon [44] . In Cobiac v Liddy [45] , Windeyer J examined the cases, statutes and writings and concluded that there is a distinction between conviction and judgment. In Griffiths v The Queen [46] , Jacobs J and Aickin J differentiated between conviction and judgment, holding that the former preceded the latter. Judgment may arise from the recording of the conviction or from the passing of sentence. The same view was also taken in Frodsham v O'Gorman [47] , Director of Public Prosecutions v McCoid [48] and Della Patrona v Director of Public Prosecutions [No 2] [49] . Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.
There are a number of ways in which a court may show acceptance of a guilty plea. The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction [50] . Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier [51] . The allocutus was not given here. There may also be implied acceptance, for instance, by proceeding to pass sentence [52] , or by calling for the record from the gaol recorder [53] . In Griffiths v The Queen [54] , Aickin J held 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. In the present case, the appellant was remanded for sentence on 25 October 1993 and so, on Aickin J's view, there was already a conviction. There may be a conviction when the judge enters into a consideration of what should be done in relation to sentencing, for example, by hearing evidence relevant to sentencing [55] , or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentencing to be obtained [56] .
In Griffiths v The Queen, Jacobs J held that, whether a conviction arose from a jury verdict or a plea of guilty, there was a conviction when the verdict or plea was recorded [57] . In the present case, the plea of guilty was not formally recorded. The only relevant record in the appeal book is an endorsement by the judge's associate against "Plea" as follows:
Not guilty of murder but guilty of manslaughter - accepted by Crown in full satisfaction of indictment. The absence of a formal record is not determinative [58] as that is a purely administrative act [59] and court practice is not consistent [60] . 1. Griffiths v The Queen (1977) 137 CLR 293 at 313. 2. R v Roberts-Smith (1977) 16 SASR 147 at 149; Della Patrona v Director of Public Prosecutions [No 2] (1995) 38 NSWLR 257 at 265, per Kirby P (Priestley and Meagher JJA agreeing). The state of the record was ignored in Frodsham v O'Gorman [1979] 1 NSWLR 683 at 688. See also R v Manchester Justices; Ex parte Lever [1937] 2 KB 96; R v Campbell; Ex parte Hoy [1953] 1 QB 585. 3. S v Recorder of Manchester [1971] AC 481 at 505, per Lord Upjohn. 4. Della Patrona v Director of Public Prosecutions [No 2] (1995) 38 NSWLR 257 at 265.
The weight of authority suggests that when, on 25 October 1993, the appellant pleaded guilty to manslaughter, the Crown announced its acceptance of the plea, and McInerney J remanded the appellant for sentence after receiving evidence and hearing submissions on that matter, the appellant may, at least for some purposes, be taken to have been convicted of the offence of manslaughter. In a passage to which reference has been made, Gleeson CJ said that the appellant had not been " formally convicted of manslaughter" (emphasis added). Whether or not the distinction is crucial depends upon the circumstances in which the point arises for consideration. For instance, it may prove important when a plea of autrefois convict is in issue but not when the question is whether a person has been "convicted on indictment" for the purposes of an appeal under s 5 of the Criminal Appeal Act. Here it arises in relation to the power of the court to reject the plea of guilty to manslaughter which had been accepted by the Crown. As will appear, since sentence had not been passed upon the appellant that power existed.
As mentioned earlier in this judgment, there is a question as to whether any power in McInerney J to reject the plea of guilty to manslaughter depends upon whether or not the appellant had been, before any exercise of such a power, convicted of the offence.
The court has the power to allow a plea of guilty to be withdrawn at any time before sentence [61] . This is so even where the jury has formally returned a guilty verdict by direction following a change of plea by the accused [62] . A defective plea of guilty may be withdrawn and a conviction set aside [63] on various grounds [64] . This is part of the inherent jurisdiction of courts to see that justice is done [65] and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other vitiating factor. To this end the court may refuse to accept a guilty plea [66] or direct that a not guilty plea be entered [67] .
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 [68] . In that situation the change of plea sets aside the conviction [69] . 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 [70] .
However, it is one thing to say that the court may permit an accused to withdraw a plea of guilty in the various circumstances mentioned. It is another to say that the court may reject a plea of guilty to a lesser offence pursuant to s 394A of the Act when the accused wishes to maintain that plea. The interests of the accused, which feature in the decisions mentioned earlier, do not then provide a basis for rejecting the plea. Where then does any power to reject the plea reside? Is it part of some general rule that in all circumstances the court may reject a plea of guilty before sentence? If it is part of such a rule, it must be on the basis that the interests of justice so require. The matter was put this way by Gleeson CJ [71] :
[W]here the Crown elects to accept a plea of guilty under s 394A of the Crimes Act 1900, the trial judge has a residual discretion to reject the plea. It is impossible to define the circumstances in which it is appropriate for such discretion to be exercised more closely than by saying it is to be exercised where the interests of justice so require. 1. R v Maxwell (1994) 34 NSWLR 606 at 614.
In the view of the Court of Criminal Appeal, one instance of where the interests of justice so require is where a trial judge has "come to the conclusion that he could not, consistently with his duty, proceed to sentence the appellant on the basis of diminished responsibility" [72] . The Court recognised that it is often the case that a judge may have to sentence a person convicted following a jury trial when the judge has a different view of the facts to the jury. And the Court accepted that if the matter had gone to trial and the plea of diminished responsibility had the support of a jury's verdict, the position would have been different. "Judges do not have to agree with the verdict of a jury before they can conscientiously sentence an offender." [73]
As I read Gleeson CJ's judgment, he distinguished those situations in which there is a verdict of a jury and sentence is to be passed from the present case where McInerney J found himself unable to accept the facts put forward on behalf of the appellant to make out a case of diminished responsibility justifying a verdict of manslaughter rather than murder. On that footing, arguably, it is hard to differentiate a situation in which there is a plea of guilty to a charge and the judge forms the view on the facts presented that the accused is guilty of a more serious offence. There is a distinction however and it was seen as crucial by the Court of Appeal for Ontario in R v Naraindeen [74] . It was put this way by Morden ACJ, delivering the judgment of the Court [75] :
I accept that the prosecutor has primary responsibility for the enforcement of the criminal law This responsibility carries with it the power to decide whether or not to charge an accused and what charge or charges to lay. It includes the power to withdraw charges before the commencement of the trial. However, once the prosecutor has seen fit to bring the proceeding before a court, the accused has pleaded, and what is sought involves something more than merely not proceeding with a charge but, rather, the acquittal of the accused on the charge that brought him or her before the court, the court has a legitimate role to play in the decision made. 1. (1990) 75 OR (2d) 120; 80 CR (3d) 66. 2. R v Naraindeen (1990) 75 OR(2d) 120 at 126-127; 80 CR (3d) 66 at 72.
The Court of Appeal for Ontario was dealing with a situation in which an accused pleaded not guilty to a charge of assault involving a weapon but guilty to a charge of simple assault. Section 606(4) of the Criminal Code Can provided that in such circumstances the court may, with the consent of the prosecutor, accept a plea of guilty to an offence other than that charged. In the passage just quoted the Court was considering the circumstances in which a trial judge might refuse to accept the plea [76] .
In R v Brown [77] the Court of Criminal Appeal held that while there may be circumstances in which it would be an abuse of process for the prosecution to charge an offender with a less serious offence than that which he has actually committed, the court has no power to compel the bringing of any particular charge. In the course of its judgment the Court rejected an argument that the power of a trial judge to stay criminal proceedings on the ground that they constitute an abuse of process exists only for the purpose of preventing unfairness or oppression to an accused. But the Court left open the question which must be answered here, namely, whether the trial judge may reject a plea of guilty to a lesser offence.
While the court cannot insist that the Crown proceed with a particular charge, there are circumstances in which it is empowered to reject a plea of guilty where the consequence is to acquit the accused of a more serious charge on which he or she was indicted. The court's power to act in the interests of justice permits it to go that far. It is true that the Crown may elect to call no evidence on the more serious charge or it may enter a nolle prosequi. In that event the court can do little more than suggest that careful consideration should be given to the course the Crown proposes to adopt. However in R v Ferguson; Ex parte Attorney-General (Q) [78] the Queensland Court of Criminal Appeal held that the court has an exceptional power to refuse to return an indictment to enable a nolle prosequi to be endorsed if that would result in an abuse of process.
There is no inconsistency involved; rather, recognition is accorded to the respective roles of the Crown and the court and the boundaries of those roles [79] . As Gleeson CJ observed in the present case [80] .
Questions of this kind, and of the kind considered in R v Brown, arise at the margin between executive and judicial power. They are ordinarily resolved in a practical way. The question here is whether that power is exhausted once the court has accepted a plea of guilty to a lesser offence, though sentence has not been passed. Once it is accepted that the interests of justice are not confined to the interests of the accused but include the legitimate interests of the Crown acting on behalf of the community [81] , the fact that the accused is awaiting sentence following a plea of guilty does not mean that the judge has no further function to perform so far as the plea is concerned. The authorities to which I have referred make it clear that the judge may permit the accused to withdraw a plea of guilty at any time before sentence. The principle that allows such a course, namely the interests of justice, permits the judge to reject a plea under s 394A until sentence has been passed. Section 394A is a procedural provision, designed to enable an accused, with the concurrence of the Crown, to plead guilty to a lesser offence. But the section falls far short of conferring a statutory right on an accused to insist that the guilty plea must be accepted, whatever the circumstances. As the Privy Council observed in Richards v The Queen [82] : [W]hen 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. 1. See Jago v District Court (NSW) (1989) 168 CLR 23 at 39, per Brennan J. 2. R v Maxwell (1994) 34 NSWLR 606 at 608. 3. Barton v The Queen (1980) 147 CLR 75 at 101; Pfennig v The Queen (1995) 182 CLR 461 at 507. 4. [1993] AC 217 at 226-227.
While Gleeson CJ spoke of a "residual discretion" in the trial judge to reject the lesser plea, it seems to me preferable to emphasise the existence of a power, to be exercised when the interests of justice so require. But it follows that the Court of Criminal Appeal was correct in answering the second question in the affirmative.
As to the first question - can the prosecution withdraw the acceptance of a plea after a plea has been accepted? - I respectfully agree with Gleeson CJ that "principles applicable to the law of contract are not an appropriate context in which to examine the position of the parties" [83] .
Nevertheless, I would not answer that question simply in the affirmative because such an answer suggests some arbitrary right in the Crown so to do. An accused may only withdraw a plea of guilty with the leave of the court. Equally, in my view, having accepted a plea of guilty to a lesser offence the Crown may not withdraw that acceptance without the leave of the court. In effect the focus then shifts to the judge who may permit withdrawal in circumstances where the interests of justice warrant a rejection of the plea.
The questions asked of the Court of Criminal Appeal should be answered:
Since these answers largely accord with the conclusions of the Court of Criminal Appeal, it is appropriate that the appeal be dismissed.
Brian William Maxwell (the appellant) was indicted before McInerney J in the Supreme Court of New South Wales on a charge that, on 24 August 1992, he murdered his wife, Marilyn Patricia Maxwell. He pleaded not guilty of murder but guilty of manslaughter.
The appellant's plea was accepted by the prosecutor in satisfaction of the indictment on the basis that he, the appellant, was entitled to rely on the defence of diminished responsibility under s 23A of the Crimes Act 1900 NSW (the Act). That section relevantly provides:
(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.
(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.
(3) A person who but for subsection (1) would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
The prosecutor's authority to accept the plea is to be found in s 394A of the Act. That section provides:
Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.
Upon his acceptance of the plea, the prosecutor informed McInerney J that it was not in dispute that the appellant intentionally shot his wife. Evidence was tendered by the prosecutor as to the circumstances of the shooting and the events which led to it. He also tendered a report from Dr Shand, a consulting psychiatrist, together with an addendum to that report in which Dr Shand expressed the view that the appellant "suffered from depression with suicidal and likely homicidal ideation for a considerable time prior to 24/8/92" and that he was entitled to rely on the defence of diminished responsibility. Dr Shand's view was based, in large measure, on the history set out in a psychiatric report prepared for the defence by Dr Strum.
Evidence was also tendered on behalf of the appellant, including the report from Dr Strum. In that report Dr Strum set out, amongst other things, various symptoms and aspects of the appellant's behaviour as conveyed to him by the appellant's mother. He also observed that Dr Doust - apparently, the appellant's treating doctor - had said that the appellant was emotionally distressed and had noted that there was a possibility that he might develop anxiety depression. Dr Strum expressed the view that "[a]t the time of the killing [the appellant] was suffering from an abnormality of mind induced by illness, that is, a major depressive episode which substantially impaired his mental responsibility for his actions".
In his report, Dr Strum noted that, for depression to end in violence, it is necessary for some circumstance "to set the chain in motion". He considered that, in the appellant's case, that circumstance was the receipt of a letter from his estranged wife, the victim of the tragic shooting, informing him that their son had to undergo a hip operation. Dr Strum believed that the appellant had received this letter "a few days before the fatal shooting". However, he did indicate that there is sometimes a "time interval between the provocation and the end result" and that that is accounted for "by the phenomenon of rumination which keeps the situation alive".
At the conclusion of the evidence, McInerney J announced that he would consider the matter and remanded the appellant in custody for sentence. When it was next listed, his Honour indicated that he was troubled by some aspects of the case, including that the psychiatrists had not referred to some matters which he regarded as important and that the facts on which they relied had not been established before him. One matter which he regarded as important was the date of the appellant's receipt of the letter informing him of the need for his son's operation. On one view of the evidence, the letter might have been received some six or seven weeks before the shooting.
His Honour also expressed the view that notwithstanding the plea, it was for the court, as the tribunal of fact, and not for the psychiatrists, to determine whether there was substantial impairment of responsibility for the purposes of s 23A of the Act. He added that if he was not entitled to reject the plea, he required "proof by the accused on the balance of probabilities of those matters he intends to rely on". Thereafter, his Honour adjourned the matter to enable submissions to be made on the question whether, in the circumstances, he was entitled to reject the plea of guilty.
Submissions were put to his Honour on 10 December 1993, by which time Dr Shand had discovered certain documents that he had not previously read. On the basis of the material in those documents, Dr Shand prepared a further report expressing the view that the appellant "was not suffering from a significant degree of psychiatric disorder, sufficient to diminish his responsibility, for killing his wife". The prosecutor submitted that his Honour could and should reject the plea. Counsel for the appellant submitted that the appellant had already been convicted of manslaughter and, thus, could not be required to stand trial for murder. Alternatively, it was argued by the appellant's counsel that rejection of the plea would amount to the usurpation of the prosecutorial function. McInerney J upheld the submissions of the prosecutor and rejected the plea of guilty of manslaughter on the basis that, if he were to proceed to sentence without regard to Dr Shand's changed opinion, "it would make [his] sentencing options intolerable and certainly not in the interests of the administration of justice".
The prosecutor did not at any stage seek leave to withdraw his acceptance of the plea and McInerney J declined to express any view as to his ability to do so. This notwithstanding, his Honour referred the following questions for the consideration of the Court of Criminal Appeal:
The matter was heard in the Court of Appeal by way of an appeal by the appellant who sought, inter alia, a negative answer to the questions posed by McInerney J. The Court of Criminal Appeal answered both questions in the affirmative, holding in relation to the second question that it was "unacceptable that a judge can be forced to sentence an offender on a factual basis which the judge cannot conscientiously accept" [84] . The appellant now appeals to this Court.
A conviction for a lesser offence than that contained in an indictment, as permitted by s 394A of the Act, necessarily involves an acquittal on the offence charged in that indictment. Accordingly, if the appellant was convicted of manslaughter when remanded in custody for sentence, he can rely on autrefois acquit and cannot now be required to stand trial for murder. It is, thus, convenient to first consider whether the appellant was convicted of manslaughter.
There has been no conclusive determination by this Court as to what, in the case of a plea of guilty, constitutes a conviction for the purposes of autrefois acquit and autrefois convict. The question was considered by the Full Court of the Supreme Court of Victoria in R v Tonks [85] and also by Gibbs J in R v Jerome and McMahon [86] . The reasoning in those cases relied heavily on the power of a court to permit an accused person to withdraw a plea of guilty and the power to reject a plea, albeit, as this case shows, that there are questions as to the precise circumstances in which that latter course is open. On the basis of those powers, it was held in Tonks that "a plea of guilty does not of its own force constitute a conviction" [87] and that for there to be a conviction there must be "some act on the part of the court [by which] it has indicated a determination of the question of guilt" [88] . That statement was treated as correct by Gibbs J in Jerome and McMahon [89] .
Clearly, imposition of a sentence will amount to an indication that there has been a determination of guilt. Although it has not always been so [90] , the present position in the United Kingdom appears to be that there is no conviction until final adjudication by sentence [91] . That approach has the advantage that the question whether there has been a conviction is capable of simple and certain answer. However, that approach is not satisfactory if submissions have to be put to the Court with respect to sentence before there has been a determination of guilt. Particularly is that so if the accused can be required to stand trial on a more serious charge than that to which he or she has pleaded guilty.
Quite apart from the difficulties which would make conviction depend on imposition of a sentence, that approach is inconsistent with observations in the separate judgments of Barwick CJ, Jacobs and Aickin JJ in Griffiths v The Queen [92] . The question in that case was whether, for the purposes of s 5D of the Criminal Appeal Act 1912 NSW, a sentence had been pronounced when it was ordered, following a plea of guilty, that the accused be remanded for sentence on condition that he enter into a good behaviour bond. "Sentence" was defined in s 2 of that Act to include "any order made on conviction with reference to the person convicted, or his property "
In Griffiths, Murphy J held that no sentence had been pronounced without considering whether there had been a conviction [93] , while Stephen J held that there had been a conviction without indicating why that was so [94] . However, Barwick CJ expressed the view that there is a conviction on a plea of guilty when the plea is accepted, allowing that acceptance is implicit in an indication that the plea is to be acted upon or that the court is "proceeding on the footing that the accused is convicted" [95] . That is very similar to the approach taken in Tonks which was expressly adopted by Aickin J [96] . On the other hand, Jacobs J was of the view that, in the ordinary case, where there is a confession of guilt after arraignment, conviction occurs when the confession is recorded [97] . In reaching that conclusion, his Honour expressed the view that a court's power to allow a guilty plea to be withdrawn is merely an aspect of its power to amend the record [98] .
There can be no doubt as to the power of a court to amend its record. Even so, there are difficulties with the approach taken by Jacobs J in Griffiths. There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law [99] , inability to obtain legal representation [100] or if the interests of justice otherwise require [101] . And although his Honour did not advert to the power to reject a plea, that too is a power which involves something more than the alteration of the record. In general terms and leaving aside a plea to a lesser charge, the power to reject a plea is a power which is exercised where the plea is equivocal or does not constitute a confession of guilt (for example, if it is accompanied by a statement which indicates that the accused denies or does not admit some element of the offence charged [102] ) or, for some other reason, there are grounds for thinking that the accused is not criminally responsible for the offence to which he or she has pleaded guilty.
The nature of the exercise involved in the rejection of a plea and in the grant of leave to withdraw a plea is such, in our view, that it must be concluded that conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question. As was pointed out in Jerome and McMahon, that may appear, for example, by the court's "imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained" [103] .
In Griffiths, Barwick CJ and Aickin J each accepted that what occurred in that case amounted to a conviction. Aickin J considered that the step of remanding the accused for sentence was "an unequivocal indication" that the accused had been found guilty because that step could not be taken without there being a conviction [104] . 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.
Apart from the order that the appellant be remanded in custody for sentence, there is nothing in the present case to indicate that there had been a determination of guilt. Indeed, there are two matters which indicate the contrary. First, for there to have been a determination of guilt it was necessary for it to be accepted that the appellant intentionally shot his wife. This was clearly appreciated by counsel and, although detailed submissions were put to McInerney J as to when that intention was formed, his Honour expressed no concluded view on the issue. The second is that, at the conclusion of submissions, his Honour announced that he would "consider the matter", not that he would consider the sentence to be imposed. In these circumstances, the remand for sentence is, in our view, to be treated as provisional in the sense indicated and not as involving a determination of guilt. It follows that the appellant has not been convicted of manslaughter.
May a court reject a plea which has been accepted under s 394A of the Act?
The Court of Criminal Appeal held that there was power to reject a plea accepted by a prosecutor under s 394A largely by reference to the position in the United Kingdom and Canada. The position in the United Kingdom is not entirely clear. Certainly there have been recent cases in which a plea has been rejected, although they are, in the main, cases in which the prosecution sought the court's approval of its acceptance of the lesser plea [105] . There are statements in those cases to the effect that the power to reject a plea is not confined to cases in which approval is sought [106] , often with reference to R v Soanes [107] , an earlier case in which the trial judge rejected a plea of infanticide previously accepted by the prosecutor and the accused stood trial for murder. More recently, it appears to have been accepted [108] that the position is as stated by the Farquharson Committee [109] , namely, that, as the prosecution retains the right to decide whether or not to offer evidence, there is no necessity to seek the court's approval for the acceptance of a plea to a lesser charge. And that approach may require reconsideration of the statement in Soanes that "it must always be in the discretion of the judge whether he will allow [the plea to a lesser offence] to be accepted" [110] .
The Canadian position is somewhat clearer in that there is statutory provision allowing that "the court may, with the consent of the prosecutor, accept [a] plea of guilty" [111] to a lesser charge than that contained in the indictment. Not surprisingly, it was held by the Court of Appeal for Ontario in R v Naraindeen [112] that the court has power to reject a plea accepted by the prosecutor. Even so, it appears from that case that the opposite approach may have been taken by some judges in Alberta [113] .
Although Soanes has been followed in Australia [114] , it is doubtful whether it is consistent with principle for a court to reject a plea accepted by a prosecutor under s 394A of the Act. However, before turning to any consideration of principle, it is convenient to note that, although the question has been framed in terms of the rejection of a plea under s 394A, the real question is whether, notwithstanding a prosecutor's acceptance of a plea under that section, a court may either require an accused person to stand trial on the more serious offence charged in the indictment or, if the prosecutor declines to offer evidence, refuse to act on the plea. Framed in that way, the question largely answers itself.
There can be no doubt as to the power of the Attorney-General and the Director of Public Prosecutions [115] to enter a nolle prosequi or of a prosecutor to refuse to offer evidence with respect to an offence charged. It follows from the existence of those powers that a court cannot require there to be a trial on a more serious charge than that to which a plea has been accepted under s 394A of the Act if, in the exercise of their respective powers, the Attorney-General, the Director of Public Prosecutions or a prosecutor declines to proceed. And, in our view, it follows from the nature of those powers that, only in limited circumstances, can a court reject such a plea. And that is so even if, as here, the prosecutor invites or acquiesces in its rejection.
The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as "the prosecutorial discretion" [116] . In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts [117] . That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute [118] , such as that conferred on a prosecutor by s 394A of the Act.
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute [119] , to enter a nolle prosequi [120] , to proceed ex officio [121] , whether or not to present evidence [122] and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted [123] . The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what [124] .
A decision by a prosecutor to accept a plea to a lesser charge, as permitted by s 394A of the Act, is a decision not to proceed, or, more precisely, not to present evidence on the more serious charge in the indictment and, at the same time, a decision as to the charge which is to proceed. It is insusceptible of judicial review. Subject to two qualifications, judicial review is precisely what is involved in a court's rejection of a plea which has been accepted under s 394A of the Act. And that is so whether or not the prosecutor invites or acquiesces in its rejection. Indeed, it may be that the impartiality of the judicial process is brought more directly into question by a decision at the behest or with the consent of a prosecutor that a plea previously accepted by the prosecutor should be rejected.
The first qualification to what has been said as to the rejection of a plea accepted by a prosecutor under s 394A is that it is a different question entirely whether the plea amounts to a confession of guilt or, for some other reason, there is reason to think the accused is not guilty of the offence to which the plea has been offered. In such circumstances, it is always open to a court to reject a plea. And that must be so whether the offence is the offence charged in the indictment or a lesser offence to which a plea has been accepted under s 394A of the Act.
The second qualification is that, of necessity, a court always retains power to prevent abuse of its process, including its criminal process [125] . It is conceivable that, in some circumstances, it might be an abuse of process for a court to proceed on a plea accepted by a prosecutor under s 394A of the Act [126] . Should a question arise in that regard, it will also be separate and distinct from the question whether the plea should be rejected.
It follows from the nature of a criminal trial, in which the prosecution bears the onus of proving guilt beyond reasonable doubt, that it cannot be an abuse of process to proceed on a lesser charge, whether by acceptance of a plea under s 394A of the Act or otherwise, merely because there is evidence which, if accepted, would sustain a conviction for a more serious offence. Similarly, it cannot be an abuse of process to proceed on a manslaughter charge if there is evidence which, if accepted, would support a finding of diminished responsibility in accordance with s 23A of the Act.
The psychiatric evidence in this case was far from satisfactory. Even so it was capable of supporting a finding of diminished responsibility under s 23A of the Act. And there was no suggestion that it was open to McInerney J to reject the appellant's plea on the basis that it was equivocal or that there was some reason to doubt that he was guilty of the offence of manslaughter. Accordingly there was no basis for his Honour's rejection of the plea. In particular, it was not open to his Honour to reject the plea because he was not satisfied that the appellant's responsibility for the shooting of his wife was substantially impaired - a course which necessarily involved an impermissible review of the prosecutor's decision under s 394A of the Act.
Moreover, it was not open to McInerney J to reject the appellant's plea of guilty to manslaughter on the grounds suggested by the Court of Criminal Appeal, namely that it required him to sentence the appellant on a basis which he could not conscientiously accept. That, too, involves a review of the prosecutor's decision. Moreover, courts are required to sentence on the basis of jury verdicts with which they may or may not agree and, abuse of process aside, there is no reason in law or logic why it cannot be done in a case where the prosecutor has accepted a plea to a lesser charge as permitted by s 394A of the Act.
May a prosecutor withdraw acceptance of a plea to a lesser charge once accepted under s 394A of the Act?
Strictly, the question whether a prosecutor may withdraw acceptance of a plea to a lesser charge once accepted under s 394A of the Act has not yet arisen. It is, however, a question that is almost certain to arise. It was dealt with by the Court of Criminal Appeal [127] and it is convenient that it be dealt with by this Court.
There is nothing in s 394A of the Act to suggest that acceptance of a plea cannot be withdrawn. And subject to two minor qualifications, there is no legal principle which requires that that be so. The first qualification is that there may be circumstances in which it is no longer possible for there to be a fair trial of the charge in the indictment as, for example, if witnesses are no longer available. That consideration requires that acceptance should be withdrawn only by leave of the court. The second qualification involves other and broader considerations of fairness. For example, there may have been admissions which would not have been made had it been thought that the matter might proceed to trial. Those broader considerations require that it be open to a court to refuse leave to a prosecutor to withdraw his or her acceptance of a plea under s 394A of the Act, unless there are good and substantial reasons for allowing that course.
The questions which were framed by McInerney J and considered by the Court of Appeal in that Court's reasons for dismissing the appellant's appeal should be answered as follows:
Question 2: "Yes, but, abuse of process aside, not if it involves a review of the prosecutor's decision under s 394A of the Act".
It should be ordered that the decision of McInerney J rejecting the appellant's plea of guilty be set aside and that the matter be remitted to him for hearing and determination in accordance with these reasons.
Maxwell
The Queen
(1969) 119 CLR 257
(1977) 137 CLR 293
(1984) 35 SASR 232
(1980) 147 CLR 75
(1989) 17 NSWLR 472
(1984) 154 CLR 563
(1981) 147 CLR 383
(1994) 34 NSWLR 606
(1995) 38 NSWLR 257
(1977) 16 SASR 147
(1984) 35 SASR 508
(1989) 51 SASR 54
(1989) 168 CLR 23
(1995) 182 CLR 461
(1990) 54 SASR 491
(1991) 55 SASR 199
(1992) 28 NSWLR 593
(1988) 83 ALR 523
(1981) 151 CLR 170
(1992) 174 CLR 509
(1995) 184 CLR 19
(1993) 177 CLR 378