AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 11 March 1999

R v Beeby

[1999] NSWCCA 30

Also reported as 104 A Crim R 142
Drugs
CRMINAL LAW COSTS

Citation: R v Beeby [1999] NSWCCA 30
Court: New South Wales Court of Criminal Appeal
Date: 11 March 1999
Judges: Powell JA, Dunford J, Dowd J

Background

The accused was charged in the District Court with two offences under the Drug Misuse and Trafficking Act 1985: deemed supply of cannabis leaf and cultivation of prohibited plants. Before arraignment, a two-day voir dire was held to determine the admissibility of alleged admissions made to police, with the trial judge ruling the evidence admissible.

Following the voir dire, negotiations occurred between the parties. The Crown presented a revised indictment charging cultivation of twenty cannabis plants (representing the estimated harvest found in a locked room, plus three plants found in a fern house). The accused was arraigned and pleaded guilty. An agreed statement of facts was tendered, character references were given, and the matter was adjourned for sentencing.

Shortly before sentencing, the Crown filed a notice of motion seeking leave to withdraw its acceptance of the plea and to present a fresh indictment. The trial judge granted that leave. A subsequent application for costs by the accused resulted in a certificate under the Suitors' Fund Act 1951, but a stay of proceedings pending payment of those costs was refused. Both rulings were challenged by the accused on appeal.

  • Whether the Crown should have been granted leave to withdraw its acceptance of the accused's guilty plea
  • Whether the trial judge had power to order the Crown to pay the accused's costs in connection with the withdrawn plea
  • Whether the trial judge erred in refusing to stay proceedings on any fresh indictment pending payment of those costs

Decision

On the question of withdrawing the plea, the Court confirmed (following Maxwell v The Queen) that the trial judge had no power to reject the plea. The only available mechanism was leave to withdraw the Crown's acceptance of the plea, which is what the trial judge granted. The Court found no error of law or mistake of principle in the exercise of that discretion, and leave to appeal on that ground was granted but the appeal dismissed.

On the costs question, Dunford J examined the principles established in Moseley (1992) 28 NSWLR 735. That case held that in criminal proceedings the general power to adjourn or make orders on terms under the District Court Act 1973 does not extend to ordering a party to pay the costs occasioned by an adjournment. The same limitation applies to the grant of leave to withdraw acceptance of a plea.

Because no undertaking to pay costs had been sought from the Crown at the time of the application, and because no jurisdiction existed to make a costs order as such or as a condition of the grant of leave, the trial judge had no power to stay proceedings until costs were paid. The refusal of the stay therefore disclosed no error.

Powell JA and Dowd J agreed with Dunford J's proposed orders. Powell JA expressed a reservation about one aspect of Dunford J's reasoning, specifically the suggestion that parties would be bound on any retrial by the voir dire ruling, noting that the High Court's decision in Rogers v The Queen may not necessarily support that proposition. However, as this point was unnecessary for the disposition of the appeals, no concluded view was expressed.

Orders Made

  • Leave to appeal granted on both applications
  • Both appeals dismissed

Key Takeaways

  • Following Maxwell v The Queen (1996) 184 CLR 501, a trial judge has no power to reject a plea of guilty; the only available mechanism is to grant the Crown leave to withdraw its acceptance of the plea, which remains a discretionary decision.
  • An appeal against such a discretionary ruling will not succeed unless the applicant establishes an error of law or a mistake of principle in the exercise of the discretion.
  • Under the principles in Moseley (1992) 28 NSWLR 735, courts in criminal proceedings have no general power to order a party to pay costs, whether as a standalone order or as a condition attached to a grant of leave to withdraw acceptance of a plea.
  • Where no undertaking to pay costs was sought from the Crown before leave was granted, a stay of proceedings pending cost payment was unavailable, and refusal of such a stay discloses no error.
  • The Court of Criminal Appeal left open the question of whether, on a retrial, the parties would be bound by a voir dire admissibility ruling from a prior proceeding, noting that Rogers v The Queen (1994) 181 CLR 251 may not unambiguously support that position.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 25(2), 29
- Criminal Appeal Act 1912 (NSW), s 5F
- Suitors' Fund Act 1951 (NSW)
- District Court Act 1973 (NSW), s 6

Cases
- Maxwell v The Queen (1996) 184 CLR 501
- R v BWM (1997) 91 A Crim R 260
- Moseley (1992) 28 NSWLR 735; 65 A Crim R 452
- Rogers v The Queen (1994) 181 CLR 251
- R v Matovski (1989) 15 NSWLR 720
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Seebag (unreported, CCA, 16 February 1993)