18 Their Honours also said at 507:
"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. 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 plea.
…
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."
19 Their Honours went on to refer with approval to a passage in the judgment of Gibbs J in the Supreme Court of Queensland in R v Jerome & McMahon [1964]Qd R 595 at 604. With respect to the facts in that case, Gibbs J 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 recognisance; 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 person."
20 The passage in the reasons of Gibbs J which states that "perhaps" a sufficient step would be taken if a court adjourned proceedings to enable information relevant only to the question of sentence to be obtained, is directly pertinent to the present case.
21 In Maxwell Dawson and McHugh JJ referred to the reasoning of the majority of the court in Griffiths v The Queen (1977) 137 CLR 293 and in particularly to the judgment of Aickin J in that case. In Griffiths at 335-336 Aickin J said:
"It was argued for the applicant that, before there was a conviction, the trial judge must use some express words to indicate the situation, such as 'I convict the accused'. I can see no reason why conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective."
22 In Griffiths itself, reliance was placed on the fact that not only had the applicant in that case adhered to his plea of guilty, but the trial judge had accepted the plea and went on to hear evidence in relation to determination of sentence.
23 In Maxwell, Gaudron and Gummow JJ also referred with approval to the passage of Gibbs J in Jerome & McMahon and to the majority judgments in Griffiths v The Queen. Their Honours said:
"The nature of the exercise involved in the rejection of a plea and then 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."
24 In Maxwell the court was concerned with the issue of what constitutes a "conviction" for the purposes of autrefois acquit and autrefois convict. A number of authorities indicate that the word "conviction" takes its colour from its context. (See eg Director of Public Prosecutions v McCoid [1988] VR 982 at 987; Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 at 265.
25 In the present case the Court is concerned with what constitutes a 'finding' to the effect that an accused person is "guilty of the offence". Authorities on the word "conviction" are helpful but not determinative in this regard.
26 In the Second Reading Speech for the Crimes Legislation Amendment (Procedure) Act which introduced s399A into the Crimes Act 1900, the Minister said:
"(s399A) amends a somewhat formal procedure. Currently once the accused is placed in the charge of the jury only the jury may bring down a verdict and thereby end a trial. Accordingly if the accused changes his or her plea from not guilty to guilty during the course of the trial, the accused must be rearraigned and plead guilty before the jury. The judge thereupon directs the jury to bring down a verdict of guilty. This procedure is rather time wasting and, no doubt, sometimes a little confusing for jurors. The amendment vests a power in the judge to accept a plea of guilty in the course of the proceedings without the involvement of the jury. The judge can discharge the jury from giving a verdict and find the accused guilty. It is important to note that the finding of a judge will have the same effect as if it were the verdict of the jury."
27 The difficulties to which the Minister referred had been highlighted in this Court's decision in R v Ross, NSWCCA, 20 April 1994 (unreported).
28 The objective of the legislation was to avoid an excessively formal procedure that was devoid of substance. In such a context, the words "to find the accused person guilty of the offence" should not be given an overly technical meaning. It is sufficient if, in substance, there has been a finding of the relevant character. There does not, in my opinion, have to be a finding to this effect in express terms.
29 The crucial decision for the Court under s91(1) is the decision of the Court to 'accept the plea'. Once an act of acceptance has occurred - as happened in this case in express terms - the statutory formulation states that "the court is to discharge the jury … and to find the accused person guilty …". The mandatory terms of this provision also suggest that no express advertence is required. Once the Court has formulated an act of acceptance, the obligation is to perform the other two steps. In this formulation the word "and" means "and" not "or" or "each". Both steps are obliged to be taken. They are, as his Honour put it "concurrent" rather than "sequential".
30 In his remarks to the jury, following upon his Honour's express acceptance of the plea, his Honour said "there is no longer any need either for a trial or for a jury". The reference to the absence of the need for a jury may be seen as referable to that part of s91(1) which refers to the discharge of the jury. However, the express reference to the fact that there was now no longer a need for a trial of any character, is a clear indication that the trial judge had made a finding of guilt. To similar effect is his Honour's reference to the fact of the admission of guilt as "all that the law requires in order to establish his guilt". These two references, together with the formal commencement of proceedings on sentence, constitute "an unequivocal indication" that the accused had been found guilty - to adopt the terminology of Aiken J in Griffiths supra at 336, applied by Gaudron and Gummow JJ in Maxwell at 531-532.
31 In my opinion his Honour made a finding of guilt. His Honour was correct to conclude that, as a result of the application of s91(2), he had no jurisdiction to entertain the application for withdrawal of the plea.