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Court of Criminal Appeal 11 November 2010

JSM v R

[2010] NSWCCA 255

Public order & justice offences
CRIMINAL LAW APPEAL CRIMINAL LAW

Citation: JSM v R [2010] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 11 November 2010
Judge(s): McClellan CJ at CL; Hoeben J; Johnson J

Background

The applicant was charged in July 2007 with serious offences including soliciting to murder, making a false accusation, drug supply, firearm possession, and possession of ammunition. Over the following two years, his legal representatives and the Director of Public Prosecutions engaged in protracted charge negotiations, during which the applicant provided an induced statement to police and indicated his willingness to give evidence against co-accused.

By October 2009, the Crown had written to the applicant's solicitor accepting a proposed guilty plea arrangement on specified charges, conditional on the applicant giving evidence against a co-accused. The applicant indicated his acceptance, but no arraignment followed. The Crown ultimately filed an indictment on the original charges rather than proceeding on the negotiated basis.

The applicant sought leave to appeal against interlocutory orders made by Berman DCJ in the District Court, arguing that the prosecution should be stayed as an abuse of process, and that the indictment had been presented out of time.

  • Whether the Crown's conduct in abandoning a negotiated plea agreement constituted an abuse of process that should prevent the prosecution from continuing
  • Whether an indictment presented after the court-ordered deadline was valid, having regard to the operation of s 129(4) of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge erred in focusing on the Crown's power to discontinue proceedings rather than on the court's broader power to prevent injustice

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. McClellan CJ at CL, with whom Hoeben J and Johnson J agreed, found that Berman DCJ had not erred in refusing to stay the prosecution.

On the abuse of process ground, the Court accepted that negotiations had occurred and that the Crown had written in terms that could be read as acceptance of the applicant's proposed plea. However, the Court found that the Crown had not entered into a binding agreement that it was legally obliged to honour. No arraignment had taken place and no guilty plea had actually been entered. The Court noted that even if an agreement had been reached, the applicant had not yet fulfilled the formal steps required to complete it.

On the question of the late indictment, the Court found that s 129(4) of the Criminal Procedure Act 1986 operated to preserve the validity of the trial notwithstanding the indictment having been filed outside the time ordered by the court. The statutory provision was determinative on that point, and the trial was permitted to proceed.

The Court also rejected the submission that Berman DCJ had improperly focused on the Crown's power to discontinue proceedings. His Honour had in fact considered whether allowing the prosecution to continue would constitute an abuse of process, which was the correct ultimate question. No error in that analysis was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A Crown letter indicating acceptance of a proposed plea arrangement does not necessarily create a binding agreement enforceable against the prosecution where the accused has not yet been formally arraigned and no guilty plea has been entered.
  • Under s 129(4) of the Criminal Procedure Act 1986 (NSW), the failure to file an indictment within a court-ordered time limit does not necessarily invalidate the trial; the statutory provision can operate to preserve the proceedings.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the ultimate question in a plea negotiation dispute is whether continuing the prosecution would constitute an abuse of process, not simply whether the Crown had the power to discontinue.
  • No abuse of process was established on these facts, despite the protracted negotiations, the provision of an induced statement, and the Crown's apparent earlier acceptance of the plea proposal.
  • Where an accused has taken all available steps to fulfil their side of a negotiated arrangement but no formal steps have been completed, that circumstance may be relevant to an abuse of process argument but is not automatically determinative in the accused's favour.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Procedure Act 1986 (NSW), s 129(4); s 68; Division 3, Part 3

Cases:
- R v M [2010] NSWDC 200