Citation: Regina v Ress [2000] NSWCCA 224
Court: Court of Criminal Appeal, New South Wales
Date: 6 June 2000
Judge(s): Giles JA, Grove J, Greg James J
Background
The appellant faced charges in the Parramatta District Court arising from a serious driving incident, including three counts of dangerous driving causing death, two counts of dangerous driving causing grievous bodily harm, and one count of wanton driving causing bodily harm. The trial commenced before Judge Nield and a jury. On the third day, and in the jury's absence, the appellant indicated a willingness to plead guilty to six of the seven counts on the indictment. The Crown withdrew the remaining count.
The trial judge accepted those pleas following an established common law procedure, without either party's counsel drawing attention to the relevant statutory provision then in force under section 399A of the Crimes Act (later replaced by section 91 of the Criminal Procedure Act). The matter was set to proceed to sentencing.
Before sentence was imposed, the appellant filed a motion seeking leave to withdraw the guilty pleas. Evidence was taken on the motion, but again the statutory provision was not brought to the judge's attention. Judge Nield refused leave after delivering a judgment that included findings of fact. The appellant then filed an appeal in the Court of Criminal Appeal, framed as an appeal against conviction, though several grounds appeared directed at the correctness of the refusal to allow the pleas to be withdrawn.
Legal Issues
- Whether a valid appeal against conviction lay in circumstances where pleas of guilty had been entered mid-trial without adherence to the applicable statutory procedure.
- Whether the Court of Criminal Appeal could properly examine the grounds of appeal given the procedural irregularities at first instance, including findings of fact made by the trial judge on contested evidence.
- How to preserve the rights of both the appellant and the Crown in light of the procedural missteps below.
Decision
The Court identified significant procedural complications arising from how the matter had unfolded below. The trial judge had made findings of fact on the contested evidence when refusing leave to withdraw the pleas. If the Court of Criminal Appeal were simply to review that evidence, difficulties arose as to what weight could be given to those factual findings, and the Crown would be unable to adduce its own evidence in response.
Sentencing had not yet occurred, which meant the conviction had not been fully finalised in the ordinary sense. The Court noted that the preferable course was to return the matter to the District Court for completion of proceedings, so that the appellant's rights would be restored to the position they would have occupied had the procedural misstep not occurred.
Counsel for the appellant, having taken instructions, confirmed that the appellant consented to withdrawing the appeal, on the basis that this would preserve all rights available to both parties going forward. The Court emphasised that granting leave to withdraw was not intended to prejudice either the appellant or the Crown in relation to any rights arising from the proceedings below.
Orders Made
- Leave granted to the appellant to withdraw the appeal.
Key Takeaways
- Where guilty pleas are entered mid-trial without adherence to the applicable statutory procedure, the resulting procedural irregularity can undermine any subsequent appeal framed as an appeal against conviction.
- Under section 399A of the Crimes Act (and its successor, section 91 of the Criminal Procedure Act), a specific statutory procedure governs the acceptance of mid-trial guilty pleas, and failure to follow it creates significant procedural difficulties for any later challenge.
- Factual findings made by a trial judge on a motion to withdraw guilty pleas sit awkwardly before an appellate court: the Court of Criminal Appeal cannot simply adopt those findings, and the Crown's ability to adduce its own evidence is constrained if the matter is resolved on the record below.
- Returning a matter to the District Court for completion of proceedings, rather than resolving it on appeal, can be the appropriate mechanism to restore the parties to their proper procedural footing.
- An appeal may be premature where sentencing has not yet occurred and where the more appropriate forum for resolving the contested issue is the originating court.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 399A (since repealed)
- Criminal Procedure Act (NSW), s 91
Cases:
- R v Ross, Court of Criminal Appeal, unreported, 20 April 1994