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Court of Criminal Appeal 30 June 2004

Regina v Holton

[2004] NSWCCA 214

HomicideTheft & propertyTraffic & driving
CRIMINAL LAW AND PROCEDURE PLEA OF GUILTY TO ONE COUNT WHETHER COURT RECORD PERFECTED SENTENCE CROWN APPEAL ASSERTING INADEQUACY

Citation: Regina v Holton [2004] NSWCCA 214
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2004
Judges: Grove J, Hulme J, Smart AJ

Background

The appellant was driving a stolen vehicle and attempted to flee pursuing police. A highway patrol officer, acting under authorisation, deployed road spikes while standing on foot. The appellant drove into the officer and killed him.

The Crown presented an indictment containing two counts: murder, and aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900. The counts were not charged in the alternative. At an arraignment appearance before Barr J, the appellant pleaded guilty to the dangerous driving count. Barr J endorsed the back of the indictment and orally expressed conviction, but no formal court record was perfected. The Crown indicated it intended to proceed to trial on the murder count, and no objection was raised at that time.

The relevance of s 52AA(6) of the Crimes Act, which prevents "double jeopardy" by prohibiting convictions for both murder and aggravated dangerous driving causing death arising from substantially the same facts, was not appreciated by anyone present. Once it was raised, the appellant moved to quash the murder count, and the Crown moved to vacate the "order for conviction" on the dangerous driving count. The allocated trial judge (who had not presided at the arraignment) dismissed the appellant's motion and granted the Crown's. The appellant was subsequently tried and convicted of murder and sentenced to 16 years imprisonment with a 12-year non-parole period. Both the appellant and the Crown appealed.

  • Whether what occurred before Barr J at arraignment constituted a final conviction for the purposes of s 52AA(6), such that the double jeopardy provision barred the subsequent murder trial.
  • Whether the trial judge had jurisdiction to vacate the order for conviction made by Barr J at the arraignment.
  • Whether a misdirection during jury deliberations, in which the judge used the phrase "a real and substantial probability or likelihood that death might be caused" rather than "would be caused," amounted to a miscarriage of justice on the murder conviction.
  • Whether the sentence of 16 years imprisonment with a 12-year non-parole period was manifestly inadequate (Crown appeal).

Decision

Conviction on the dangerous driving count: was it final?

Grove J and Smart AJ held that what occurred before Barr J did not amount to a conviction of a final character. Because nobody at the time appreciated the operation of s 52AA(6), and because Barr J simultaneously confirmed the murder trial was to proceed, the acceptance of the guilty plea could only be treated as provisional pending sentence or other disposal. The trial judge's order "vacating" that earlier step involved recognition of its non-final character, not the reversal of a completed conviction. Section 52AA(6) therefore did not operate to bar the murder trial.

Hulme J reached the same result by a different path. His Honour held that the conviction before Barr J was not provisional in any general sense, but that it had never been perfected because it was not entered on the court record by proper endorsement. Because the order was unperfected, the trial judge retained power to reopen and vacate it. The legal effect was to treat the order as though it had never occurred.

Jury direction on reckless indifference to human life

The Court unanimously held that the trial judge's use of "might be caused" rather than "would be caused" on one occasion did not produce a miscarriage of justice. A correct direction had been given repeatedly and in writing throughout the trial. No one present during the trial had identified the expression as problematic at the time. The Court applied Rule 4 of the Criminal Appeal Rules and the proviso to s 6 of the Criminal Appeal Act, treating the departure as an irregularity that did not affect the verdict.

Crown appeal against sentence

Grove J and Smart AJ, forming the majority, described the sentence of 16 years with a 12-year non-parole period as very lenient but concluded it did not cross the threshold of manifest inadequacy in the particular circumstances of the case. Hulme J dissented, finding the sentence manifestly inadequate and that a sentence of 20 years with a 15-year non-parole period ought to have been imposed. The Crown appeal was dismissed by majority.

Orders Made

  • Appeal against conviction dismissed.
  • Crown appeal against sentence dismissed (by majority).

Key Takeaways

  • A guilty plea accepted at arraignment does not automatically constitute a final conviction for the purposes of the double jeopardy provision in s 52AA(6) of the Crimes Act 1900, particularly where the proceedings as a whole are inconsistent with finality.
  • Grove J and Smart AJ confirmed that the acceptance of a guilty plea remains provisional pending sentence or other disposal where context makes a final conviction inconsistent with the surrounding circumstances.
  • Hulme J confirmed an alternative route to the same outcome: an order for conviction that has not been perfected by entry on the court record can be reopened and vacated by a subsequent judge, treating the order as if it had never occurred.
  • A single erroneous jury direction will not constitute a miscarriage of justice where correct directions have been given repeatedly and in writing, and no party raised the error during the trial. The proviso to s 6 of the Criminal Appeal Act and Rule 4 of the Criminal Appeal Rules may apply in such circumstances.
  • In Crown appeals against sentence, a finding that a sentence is "very lenient" does not automatically satisfy the threshold of manifest inadequacy required to justify appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52AA(6)
- Criminal Appeal Act (NSW), s 6
- Criminal Appeal Rules, Rule 4

Cases
- Maxwell v The Queen (1995) 184 CLR 501
- Griffiths v The Queen (1977) 137 CLR 293
- Veen v R (No 2) (1987-88) 164 CLR 465
- Wong v The Queen (2001) 207 CLR 584
- Ryan v The Queen (2001) 206 CLR 267
- Boughey v The Queen (1986) 161 CLR 10
- Gilbert v The Queen (2000) 201 CLR 414
- Everett v The Queen (1994) 181 CLR 295
- Wilde v The Queen (1987) 164 CLR 365
- Quartermaine v The Queen (1980) 143 CLR 595
- R v De Simoni (1980-81) 147 CLR 383
- Della Patrona v DPP (No 2) (1995) 38 NSWLR 257
- AG's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146
- DPP v Helou [2003] NSWCA 301
- R v Ainsworth (1994) 76 A Crim R 127
- S v Recorder of Manchester [1971] AC 481
- Cmr for Railways (NSW) v Cavanough (1935) 53 CLR 220
- Various other cases cited in the judgment