R v Kilby

Legislation Cited: Crimes Act 1900 (NSW), 18(1)(a)
Criminal Procedure Act 1986 (NSW), 95(4), 101(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW), 25D(2)(a)

Cases Cited: Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960

Category: Procedural rulings

Parties: Rex (Crown)
Roger James Kilby (Applicant)

Representation: Counsel:
J Stanhope (Crown)
N Broadbent SC (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (NSW/ACT) (Applicant)

File Number(s): 2023/00081902

Publication restriction: Nil

JUDGMENT

1. On 12 March 2023, Mr Roger Kilby (“the applicant”) was charged with murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Crimes Act”).

2. On 21 February 2025, the matter came before the Local Court at Parkes. On that date, the Magistrate committed the matter to the Supreme Court of New South Wales for sentence.

3. The applicant moves on an Amended Notice of Motion, dated 18 June 2025, seeking to return the proceedings to the Local Court at Dubbo for a further committal hearing pursuant to s 101(1)(c) of the Criminal Procedure Act 1986 (NSW) (“CPA”). The section provides:

101 Higher court may refer accused person back to Magistrate

(1) A Judge of the District Court or the Supreme Court before whom an accused person is brought under section 97 (6) may order that the committal proceedings be continued before a Magistrate if—

…

(c) for any other reason, the Judge thinks fit to do so.

(2) On the resumption of the committal proceedings, the proceedings continue as if the person had not pleaded guilty.

4. The applicant submitted that some uncertainty attaches to whether the Magistrate ascertained if the applicant was pleading guilty to the offence specified on the charge certificate as mandated by s 95(4) of the CPA. Accordingly, a question arises as to whether a plea was “entered” and “accepted” by the Magistrate for the purpose of s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

5. The applicant relied upon an affidavit of his solicitor, Ms Al Majed, affirmed on 29 May 2025. Annexed to the affidavit was a “Transcript of Audio Recording of Committal at Parkes Local Court on 21 February 2025” which was not objected to by the Crown.

6. The applicant appeared via audio visual link. Ms Al Majed was appearing on behalf of the applicant also via audio visual link. It was noted that the proceedings were hindered by technological difficulties with the audio visual link system.

7. The Magistrate enquired whether the matter was to be committed for trial or for sentence. Due to the technological difficulties, no response by Ms Al Majed was transcribed. However, the Director of Public Prosecutions solicitor responded that the matter is to be committed for sentence. Immediately following, Ms Al Majed is heard to say: “Sentence – ”.

8. The case conference certificate was handed up to the Magistrate.

9. The transcript reveals that the following conversation took place between the Magistrate and the applicant:

“HIS HONOUR: Alright, sir. I have just been told that this is to be committed for sentence to the Supreme Court at Sydney. Just going through this. The brief of evidence has obviously been served and we have the charge certificate and the case conference certificate. That meets the requirement of the Act. Sir, I commit you for sentence to the Supreme Court at Sydney on 4 April 2025 or such other time or place that the Court or criminal listings director may point. In terms of bail, bail is not applied for to be refused. By AVL on the first appearance in the Supreme Court, is that correct?”

10. Notwithstanding that there was a clear understanding between the parties that the matter was to proceed as a plea of guilty and committal for sentence, the applicant submitted that intention alone does not comply with s 95(4) of the CPA, nor does it enliven the discount under s 25D(2)(a) of the CSPA.

11. An intention to enter a plea of guilty is not sufficient to fulfil the legislative requirements. However, in this case what transpired was not limited to an intention to plead guilty. The Magistrate ascertained that there was a plea of guilty by asking whether the matter was to be committed for trial or sentence. The response that it was to be committed for sentence was a sufficient answer to the question, in the circumstances of this case, where the applicant was represented by a very competent solicitor and the difficulty appeared to have arisen as a result of technological malfunction. Furthermore, there was only one charge the subject of the proceedings and therefore, no confusion as to the charge that was being committed for sentence.

12. The Crown accepted that s 95(4) imposes a duty upon a Magistrate which must be complied with and submitted that while the Magistrate could certainly have done more to demonstrate compliance with s 95(4), in the circumstances of this case there was sufficient compliance.

13. The Crown accepts that the applicant’s plea of guilty was accepted by the Magistrate in the Local Court, and the applicant is entitled to a discount of 25% on the sentence that would otherwise be imposed: s 25D(2)(a) of CSPA. Accordingly, the Crown submitted that the application to remit the matter to the Local Court jurisdiction should be refused and the sentencing hearing on 7 July 2025 be confirmed.

14. I agree with the Crown’s position. Rigorous compliance with the relevant legislation is essential in order to ensure that fairness and justice is provided to an accused person. In Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960 I made the following remarks at [27]-[29]:

“Before I make the necessary orders, it is important to note that committal for trial to the District Court impacts upon the sentencing discount available to an offender on sentence. The application of the discounts is mandatory and there are no relevant exceptions in this case.

Under s 25A(2) of the CSPA, a court must not apply any other discount for the utilitarian value of a guilty plea other than the discount provided for by Division 8.

The failure to undertake the inquiry required under s 95(4) of the CPA potentially deprived the plaintiff of a 25% discount for an early plea of guilty, as the discount available is mandatorily reduced by s 25D(2)(b) of the CSPA once the matter is committed to the District Court for trial.” (Emphasis added.)

15. While I understand the applicant’s concern, giving rise to the application, I am comfortably of the view that the application should be dismissed. In the circumstances of this case, the Magistrate made an enquiry about the disposition of the matter. Both parties responded that the matter was to be committed for sentence. The Magistrate, therefore, ascertained whether or not the accused person pleads guilty to the offence and accepted the plea of guilty by committing the matter for sentence.

16. This case involved one charge. In a case involving multiple charges, for instance, it will be incumbent upon the Magistrate to enquire in respect of each charge as to whether the accused person pleads guilty or not guilty to satisfy the requirement of s 95(4) of the CPA. In those circumstances the Magistrate is required to accept the plea in relation to each charge either expressly or inferentially but in a way that clearly establishes that the requirements of s 25D(2)(a) have been fulfilled.

17. Compliance with the legislative regime is not onerous and avoids the more cumbersome and time-consuming alternative of having matters remitted to the Local Court for a further committal hearing.

18. In the circumstances of this case, I am not persuaded that such a course is necessary. I accept that the Magistrate ascertained whether the applicant was pleading guilty or not guilty to the offence and am satisfied that the Magistrate accepted the plea of guilty by committing the matter for sentence.

19. Accordingly, I make the following order:

20. Dismiss the Notice of Motion and confirm the listing of the matter for sentence at the Supreme Court in Orange on 7 July 2025.

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