Citation: Regina v Kenneth Ian O'Meara [2003] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 5 September 2003
Judge(s): Meagher JA, Sully J, Smart AJ
Background
The appellant faced four charges in the District Court of contravening section 29B of the Crimes Act 1914 (Cth), a Commonwealth criminal law. He pleaded not guilty and a jury trial commenced. Partway through the trial, he indicated through his counsel that he wished to change his pleas.
With the jury absent, the trial judge re-indicted the appellant and took fresh pleas of guilty to all four counts. The judge then formally recorded convictions, returned the jury, explained what had occurred, and discharged it. Penalties were subsequently imposed, though those penalties were not challenged in this appeal.
The appellant sought to have the convictions quashed on the ground that the procedure adopted was constitutionally invalid. The challenge turned entirely on section 80 of the Commonwealth Constitution.
Legal Issues
- Whether the mid-trial procedure of re-indicting the appellant and accepting his guilty pleas, rather than directing a jury verdict, infringed section 80 of the Commonwealth Constitution, which requires that trials on indictment for Commonwealth offences be conducted by jury.
- Whether any such constitutional error, if established, would have resulted in a miscarriage of justice warranting the quashing of the convictions.
Decision
Sully J delivered the primary judgment, with Meagher JA and Smart AJ agreeing. The Court held that the constitutional point was without substance and could be resolved without entering complex constitutional questions.
Sully J reasoned that, at the point the appellant changed his pleas, two proceedings were effectively running concurrently: a part-heard jury trial and a new proceeding initiated by the re-indictment. Because the appellant was entitled to a jury trial for as long as he maintained his not guilty pleas, and that entitlement was never disturbed or denied, there was no infraction of section 80. The section was satisfied by the jury trial that proceeded up to the point the pleas changed.
Even if that analysis were wrong, Sully J held that this was precisely the kind of case where the court should avoid elevating mere technicalities over the interests of justice, drawing on the reasoning of Mahoney JA in Regina v Ross. On the facts, there was simply no miscarriage of justice.
Smart AJ added that the established practice in New South Wales in this situation had long been either to direct the jury to enter a particular verdict (following Regina v Hayes) or to discharge the jury, re-indict the accused, and take a fresh plea. Both approaches were treated as constitutionally and procedurally sound.
Orders Made
- Appeal dismissed.
Key Takeaways
- Section 80 of the Commonwealth Constitution is satisfied where an accused person is afforded a jury trial while maintaining a plea of not guilty; the constitutional guarantee is not breached when the accused voluntarily changes that plea during trial.
- Re-indicting an accused and taking a fresh guilty plea after jury discharge is an established and accepted practice in New South Wales for Commonwealth offences, confirmed here as raising no constitutional difficulty.
- Two accepted procedures exist when an accused changes a plea mid-trial: directing the jury to enter a verdict consistent with the changed plea (following Regina v Hayes) or discharging the jury, re-indicting, and taking a fresh plea.
- In dismissing the appeal, the Court of Criminal Appeal endorsed the principle from Regina v Ross that courts should avoid treating procedural technicalities as grounds for quashing convictions where no miscarriage of justice has occurred.
- No miscarriage of justice arose on the facts: the appellant was at all times entitled to continue his jury trial, and voluntarily chose not to do so.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), section 29B
- Judiciary Act (Cth), sections 68(1) and 68(2)
- Commonwealth Constitution, section 80
Cases:
- Regina v Ross, unreported, NSWCCA, 20 April 1994
- Regina v Hayes (1951) 1 KB 29