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Court of Criminal Appeal 6 March 2003

REGINA v FILIMOEHALA

[2003] NSWCCA 37

Also reported as 138 A Crim R 299
Assault & violence
APPEAL AGAINST INTERLOCUTORY JUDGMENT DUTY OF THE PROSECUTION TO THE COURT PREJUDICE TO THE ACCUSED ADDUCTION ADDITIONAL EVIDENCE.

Citation: Regina v Filimoehala [2003] NSWCCA 37
Court: New South Wales Court of Criminal Appeal
Date: 6 March 2003
Judge(s): Mason P, Dowd J, Smart AJ

Background

The accused had been arraigned in the District Court on a charge of maliciously inflicting grievous bodily harm with intent (s 33, Crimes Act 1900), with an alternative charge of maliciously inflicting grievous bodily harm (s 35). Following a pre-arranged agreement between counsel, the accused pleaded not guilty to the primary charge and guilty to the alternative. The Crown accepted that plea in full satisfaction of the indictment, and the matter was stood over for sentencing.

More than a year later, the Crown moved by notice of motion to withdraw its acceptance of the guilty plea. The primary judge, Black DCJ, granted leave to the Crown to do so. The accused then sought leave to appeal against that interlocutory order under s 5F of the Criminal Appeal Act 1912.

The case arose from a serious violent incident in Ballina in November 1999. The principal victim, Kevin Ellis, had no involvement in any prior altercation that evening. He suffered a fractured skull, fractured cheek bone, fractured jaw, fractured ribs, significant internal bleeding, and apparently permanent injuries including substantial hearing loss and nerve damage, after being attacked without provocation.

  • Whether leave to appeal against an interlocutory judgment under s 5F of the Criminal Appeal Act 1912 should be granted to the accused
  • Whether the Crown should have been permitted to withdraw its acceptance of the accused's guilty plea to the lesser charge
  • Whether the primary judge erred in the procedure or reasoning used to grant the Crown leave to withdraw
  • Whether additional evidence (the Crown brief of evidence and an affidavit) should be admitted on the appeal under s 5F(4)
  • Whether the severity of the charges and the strength of the Crown case justified departure from the plea arrangement

Decision

The Court of Criminal Appeal granted the accused leave to appeal but ultimately dismissed the appeal, concluding that the decision made by Black DCJ was correct even though his Honour's approach to the matter contained error. The court acknowledged that the Crown bears a duty to the court and that withdrawing an accepted plea is a serious step requiring careful scrutiny, particularly having regard to any prejudice caused to the accused.

Smart AJ (with whom Mason P and Dowd J agreed) examined in detail whether the Crown had demonstrated sufficient grounds for withdrawing acceptance of the plea. His Honour found that the seriousness of the allegations and the severity of the injuries suffered by the principal victim rendered it inappropriate for the Crown to proceed only on the lesser charge of maliciously inflicting grievous bodily harm. The Crown case, on the available materials, appeared to be one of considerable strength.

The court also grappled with a procedural question about the admissibility of additional evidence on the interlocutory appeal. Smart AJ was of the view that the statement of Detective Sergeant Taylor, which had been relied upon below, was of insufficient basis on which to act. However, the court granted the Crown leave to rely on an affidavit from Mr Clark and the attached Crown brief of evidence, which together covered the essential factual matters. The accused elected not to tender any responsive evidence once that material was admitted.

Ultimately, while error was identified in how the court below dealt with the matter, the outcome was confirmed as correct. Allowing the Crown to proceed on the more serious charge was justified by the strength of the evidence and the gravity of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Crown's withdrawal of an accepted guilty plea is a serious step, and the court will scrutinise both the grounds advanced and any prejudice to the accused before permitting it.
  • Even where procedural error is identified in a primary judge's reasoning on an interlocutory application, the Court of Criminal Appeal may nonetheless dismiss an appeal if the outcome reached was correct.
  • Under s 5F(4) of the Criminal Appeal Act 1912, an interlocutory appeal is ordinarily determined on the evidence given below, but the court retains a discretion to grant leave to adduce fresh, additional, or substituted evidence where the interests of justice require it.
  • The gravity of the alleged offending and the apparent strength of the Crown case were treated as relevant considerations in assessing whether leave to withdraw an accepted plea should have been granted.
  • Refusing leave to appeal under s 5F does not foreclose a further appeal following conviction on the relevant matter, as expressly preserved by s 5F(6) of the Act.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), ss 33, 35
- Evidence Act 1995 (NSW)

Cases:
- Beeby (1999) 104 ACrimR 142
- Boag (1994) 73 ACrimR 35
- BWM (1997) 91 ACrimR 260
- Gallagher (1986) 160 CLR 392
- Lawless (1979) 142 CLR 659
- Mickelberg (1989) 167 CLR 259