AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 2 March 2021

R v Tailford

[2021] NSWSC 248

Homicide
CRIMINAL PROCEDURE INDICTMENT MURDER AND MANSLAUGHTER ON INDICTMENT MANSLAUGHTER AS ALTERNATIVE CROWN CONSENT TO COURSE AVAILABLE BUT INCONVENIENT

Citation: R v Tailford [2021] NSWSC 248
Court: Supreme Court of New South Wales
Date: 2 March 2021
Judge: Rothman J

Background

The accused was charged on indictment with the murder of another man. Unusually, the indictment was drafted to charge both murder and, in the alternative, manslaughter. The accused pleaded not guilty to murder but guilty to manslaughter.

The Crown did not accept the guilty plea to manslaughter as full satisfaction of the indictment. Instead, both the accused and the Crown jointly applied for a particular procedural course: that only the murder charge be left to the jury, and that if the jury returned a not guilty verdict on murder, the judge would then deal separately with the guilty plea to manslaughter.

Rothman J reserved reasons after adopting this procedure, and the judgment sets out the legal basis for that decision.

  • Whether a court can, on a murder indictment that expressly charges manslaughter in the alternative, leave only the murder count to the jury and reserve the guilty plea to manslaughter for the judge to deal with afterward.
  • Whether sections 153 and 154 of the Criminal Procedure Act 1986 (NSW) applied to this procedural course, given that manslaughter was expressly charged on the indictment rather than being an uncharged alternative.
  • Whether concerns about autrefois acquit (the double jeopardy rule preventing a second trial for the same offence after acquittal) created an obstacle to this approach.
  • How New South Wales practice on this question differs from Victorian practice.

Decision

Rothman J confirmed that the procedural course sought by both parties was available, though not without complications. The more common practice in NSW is to charge only murder on an indictment, with manslaughter available as an alternative verdict under the common law and section 153 of the Criminal Procedure Act. Section 153 strictly applies where the alternative offence is not charged on the indictment. Here, because manslaughter was expressly charged, section 153 did not apply directly, creating a technical difficulty.

The court identified a further complication arising from the common law principle, confirmed in R v Downs (1985), that murder and manslaughter are each a description of the one felony at common law. This raised the question of whether, if a jury acquitted on murder without manslaughter being considered, a subsequent court dealing with the manslaughter plea might face an autrefois acquit argument. The judge noted that the procedure adopted in this case allowed that issue to be avoided.

In examining how courts in other jurisdictions have handled analogous situations, Rothman J drew on English authorities including R v Hazeltine [1967] and R v Cole [1965], and South Australian authority in R v Murphy (1988). The consistent NSW and English approach is that only the count to which the accused has pleaded not guilty goes to the jury. If the Crown does not accept a guilty plea to a lesser offence as full satisfaction of the indictment, that plea is ordinarily treated as withdrawn and the trial proceeds with both the charged offence and available alternatives left to the jury.

The Victorian approach differs: courts there have taken the view that all alternative counts, whether pleaded to or not, should go to the jury. Rothman J noted this divergence but confirmed that the NSW practice, consistent with English and South Australian authority, supported the procedure the parties sought. The court therefore acceded to the joint application.

Orders Made

• The Court adopted and implemented the practice and procedure for which the parties applied, and shall enter verdicts in the manner described in paragraphs (x) and (xi) of paragraph [67].

Key Takeaways

  • In NSW, where an accused pleads not guilty to murder but guilty to manslaughter on an indictment that expressly charges both, the court can leave only the murder count to the jury and reserve the manslaughter guilty plea for the judge to deal with if there is a not guilty verdict on murder, provided both parties consent.
  • Section 153 of the Criminal Procedure Act 1986 (NSW) does not strictly apply in this situation because it is confined to alternative offences that are not expressly charged on the indictment; the court's power to adopt this procedure derives from the common law and established NSW practice.
  • Structuring the procedure in this way can avoid potential autrefois acquit complications that would otherwise arise from the principle that murder and manslaughter are descriptions of the one common law felony.
  • NSW practice on alternative pleas follows the English approach rather than the Victorian approach: in Victoria, all alternative counts, including those to which a guilty plea has been entered, go to the jury; NSW does not follow that course.
  • Where the Crown does not accept a guilty plea to a lesser offence in full satisfaction of the indictment, the default position in NSW is that the lesser plea is treated as withdrawn and the jury considers both the charged offence and any available alternatives.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 23(2), 370, 394A, 395
- Criminal Procedure Act 1986 (NSW), ss 153, 154
- Criminal Justice Administration Act 1914 (UK), s 39(1)
- Criminal Law Amendment Act 1883 (NSW), s 316
- Offences against the Person Act 1861 (UK), s 18

Cases:
- R v Downs (1985) 3 NSWLR 312
- R v Hazeltine [1967] 2 QB 857
- R v Cole [1965] 2 QB 388
- Gilham v The Queen (2007) 73 NSWLR 308; [2007] NSWCCA 323
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- R v Murphy (1988) 52 SASR 186
- R v Nigel Collins (1994) 76 A Crim R 204
- R v Orlowsky [2008] NSWDC 368
- R v Thompson (Court of Criminal Appeal, 24 June 1976, unrep)
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- R v Jones [1918] 1 KB 416
- R v Archbold (1890) 6 WN(NSW) 104
- R v Hass [1972] 1 NSWLR 589