Citation: R v Hart (No 4) [2016] NSWSC 958
Court: Supreme Court of New South Wales
Date: 6 July 2016
Judge: Campbell J
Background
The accused was charged with murder on indictment. At arraignment, in the presence of the jury, the accused entered a plea of guilty to manslaughter rather than to the murder charged. Manslaughter had not been pleaded as an alternative count on the indictment.
The Crown declined to accept the plea to the lesser offence. This gave rise to a procedural question that Campbell J had raised the previous week: given that the accused had entered a plea to manslaughter in open court, was it still open to the accused to ask the jury to return a verdict of not guilty to murder, and by implication, also not guilty to manslaughter?
Counsel for the accused and for the Crown addressed the question by reference to s 153 of the Criminal Procedure Act 1986 (NSW) and supporting case law.
Legal Issues
- Where an accused pleads guilty to a lesser offence not charged on the indictment and the Crown declines to accept that plea, does the plea operate to withdraw the trial from the jury on the charged count?
- Is a verdict of "not guilty" on the indicted charge still available to the accused after such a plea?
- What is the evidentiary status of a guilty plea to a lesser offence made in open court in the presence of the jury?
Decision
Campbell J accepted the submission put by counsel for the accused. Once the Crown elects not to accept a plea of guilty to a lesser offence, at least where that lesser offence is not charged as an alternative count on the indictment, the plea uttered in the jury's presence is treated as having been withdrawn. The trial then continues on the count as laid in the indictment, and a verdict of not guilty remains available to the accused.
However, the court also held that the guilty plea to manslaughter, having been made in open court before the jury, is admissible against the accused as an admission. The jury may take that admission into account when determining what verdict to return on the murder count.
The judgment draws on the Victorian Full Court's decision in R v Broadbent [1964] VR 333 as informing the proper construction of s 153, even though that decision predates the NSW provision.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 153 of the Criminal Procedure Act 1986 (NSW), where an accused pleads guilty to a lesser offence not charged as an alternative count and the Crown refuses to accept that plea, the plea is treated as withdrawn and the trial proceeds on the indicted count.
- A verdict of "not guilty" on the charged count remains available to the accused after such a rejected plea, meaning the accused retains the full benefit of the jury's consideration.
- Despite being treated as withdrawn for the purpose of the trial's continuation, a guilty plea to a lesser offence made in open court before the jury constitutes an admission and is admissible in evidence.
- The jury may have regard to that admission when deliberating on the proper verdict, so the plea carries real evidentiary weight even though it does not resolve the proceedings.
- R v Broadbent [1964] VR 333, a decision of the Full Court of the Supreme Court of Victoria, informed the court's construction of s 153, illustrating the potential relevance of Victorian authority to equivalent NSW procedural provisions.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 153
Cases
- R v Broadbent [1964] VR 333 (Full Court, Supreme Court of Victoria)