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2
Court of Criminal Appeal 3 February 2000

R v MacDONALD

[2000] NSWCCA 1

Also reported as 110 A Crim R 238
DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE

Citation: R v MacDONALD [2000] NSWCCA 1
Court: New South Wales Court of Criminal Appeal
Date: 3 February 2000
Judge(s): Bell J (single judge, pursuant to ss 5AD and 5AA of the Criminal Appeal Act 1912)

Background

The appellant was charged with supplying a commercial quantity of methylamphetamine, along with four other offences arising from the same arrest: unlicensed possession of a firearm, failure to secure a firearm, unlicensed possession of ammunition, and failing to pay for accommodation at an inn. The four additional charges were pending before the Local Court at Broken Hill when the appellant appeared for trial in the District Court.

On 8 March 1999, the appellant pleaded guilty to the drug supply charge upon arraignment. During the sentencing proceedings the following day, the District Court was asked to deal with the four outstanding matters. There was some confusion between the parties about the correct procedural mechanism. The Crown favoured using Part 10 of the Criminal Procedure Act 1986, which allows superior courts to deal with related offences. The appellant's counsel preferred the offences be taken into account on a Form 1 document under section 21 of the same Act.

The sentencing judge ultimately dealt with all four charges under Part 10 of the Act, recording convictions on each. The appellant challenged that approach on appeal, arguing the District Court had no jurisdiction to proceed under Part 10 in circumstances where he had pleaded guilty on arraignment rather than proceeding to a contested trial.

  • Whether a plea of guilty entered upon arraignment constitutes the "conclusion of the trial of an accused person for an indictable offence" within the meaning of section 35 (formerly section 37) of the Criminal Procedure Act 1986, so as to enliven the District Court's jurisdiction to deal with related offences under Part 10.
  • Whether, absent that jurisdiction, the only available mechanism for dealing with related and back-up offences was the Form 1 procedure under section 21 of the Act.

Decision

Bell J held that the District Court did not have jurisdiction to deal with the four charges under Part 10 of the Act. The critical question was whether the proceedings had reached the "conclusion of the trial" as required by section 35. Her Honour concluded they had not, because a plea of guilty entered upon arraignment does not constitute a trial.

Referring to the 1850 English case of Regina v Faderman, Bell J noted the common law position that there is no trial until issue is joined, which occurs when an accused enters a plea of not guilty. An accused who pleads guilty upon arraignment confesses guilt and becomes liable to be sentenced, but does not undergo a trial in the relevant sense. This was also consistent with section 395 of the Crimes Act 1900 (now section 88 of the Criminal Procedure Act), which provides that a plea of not guilty puts the accused "on the country for trial," implying that the trial process is not engaged by a guilty plea.

Bell J also noted the Act's own provisions, which contemplate that trial proceedings on indictment begin when the indictment is presented and the accused is arraigned, and that pre-empanelment proceedings form part of the trial. However, these provisions did not assist the Crown in this case, as the proceedings concluded at arraignment with a guilty plea rather than continuing to trial.

Accordingly, the convictions and sentences imposed on all four charges under Part 10 were quashed. Bell J confirmed that where an accused pleads guilty upon arraignment, the court's only avenue for dealing with related or back-up offences is to take them into account under section 21 (now section 161) of the Act, with no conviction recorded.

Orders Made

  • The appellant's convictions and sentences on each of the four charges dealt with under Part 10 of the Criminal Procedure Act 1986 were quashed.

Key Takeaways

  • A plea of guilty entered upon arraignment does not constitute the "conclusion of the trial of an accused person for an indictable offence" under section 35 of the Criminal Procedure Act 1986, and therefore does not enliven District Court jurisdiction to deal with related offences under Part 10 (now Part 2, Division 4) of that Act.
  • At common law, a criminal trial does not commence (and therefore cannot conclude) unless the accused enters a plea of not guilty, joining issue with the Crown. A guilty plea upon arraignment bypasses the trial process entirely.
  • Where an accused pleads guilty upon arraignment, the court retains only one mechanism for addressing related or back-up offences: taking them into account on a Form 1 document under section 21 (now section 161) of the Act. No conviction is recorded under that procedure.
  • The Form 1 procedure is not rendered meaningless by the nature of the principal indictable offence. The charges taken into account are a matter of record and can be proved under section 23(7) (now section 163(7)) of the Act.
  • The Court of Criminal Appeal's jurisdiction to hear appeals concerning convictions and sentences imposed under Part 10 is exercisable by a single judge, as the Chief Justice may direct, pursuant to sections 5AD and 5AA of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21, 23, 34, 35, 37, 88, 161, 163, Part 10, Part 2 Division 4
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AD
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29
- Crimes Act 1900 (NSW), ss 395, 447B (repealed)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Criminal Procedure Legislation (Amendment) Act 1990 (NSW)
- Firearms Act 1996 (NSW), ss 7(1), 39(1), 65(3)
- Innkeepers Act 1968 (NSW), s 9
- Criminal Procedure Regulation 1995 (NSW)

Cases:
- Basarabas v The Queen (1982) 144 DLR (3d) 115
- Regina v Faderman (1850) 1 Den CC 565; 169 ER 375