Citation: R v Johann Saafi [2024] NSWDC 197
Court: District Court of New South Wales
Date: 29 May 2024
Judge: Grant DCJ
Background
The accused stood trial alongside four co-accused on a four-count indictment arising from events on 1 June 2021. When arraigned before the jury panel on 26 April 2024, he pleaded not guilty to Count 1 (break and enter with assault in special aggravating circumstances) but pleaded guilty to Counts 2, 3 and 4, which included aggravated kidnapping, destroying evidence by fire, and intentional property damage by fire.
Count 2 alleged that the accused, in company with others, detained the complainant without consent with intent to hold him to ransom, with actual bodily harm occasioned at Revesby. As the trial proceeded, however, the evidence indicated the assault had occurred at Bringelly rather than Revesby. The Crown conceded that directed verdicts of not guilty should be entered against the co-accused on the aggravated and specially aggravated versions of Count 2, leaving the jury to consider only the basic offence under s 86(1) of the Crimes Act 1900 (NSW) in respect of those co-accused.
On 28 May 2024, the jury returned not guilty verdicts on Count 1 for all accused and guilty verdicts on the basic kidnapping offence for the four co-accused. The accused then applied to withdraw (traverse) his guilty plea to Count 2, noting the disparity between his position and that of his co-accused.
Legal Issues
- Whether the court retained jurisdiction to entertain an application to withdraw a guilty plea entered in the presence of a jury, under s 157 of the Criminal Procedure Act 1986 (NSW).
- Whether the trial judge's directions to the jury, including a statement that the accused would be sentenced on Count 2, constituted a "finding of guilt" sufficient to render the court functus (meaning its authority over that matter was exhausted).
- Whether the reasoning in R v Hura [2001] NSWCCA 61 and Regina v Boag (1994) 73 A Crim R 35 supported the application.
Decision
Grant DCJ held that the court had no jurisdiction to entertain the application to withdraw the guilty plea. Section 157 of the Criminal Procedure Act provides that where an accused pleads guilty after being given into the charge of a jury and the court accepts the plea, the court is to discharge the jury from giving a verdict and find the accused guilty. That finding has the same effect as a jury verdict.
The judge found that his directions to the jury during the summing up on 22 May 2024 constituted an unequivocal finding of guilt within the meaning of s 157. In those directions, he told the jury that the accused had pleaded guilty to Count 2 and that the jury need not consider him on that count, adding that "at some stage he will be sentenced by me in relation to that conduct." Those words eliminated any need for a trial on Counts 2, 3 and 4 and constituted a clear finding of guilt, even without the use of express words such as "I convict."
The accused's counsel relied on R v Hura for the proposition that the judge had not yet formally made a finding of guilt or commenced sentence proceedings and therefore remained un-functus. Grant DCJ rejected that reading. Considered in full, Hura confirms that no formal or express words are required; it is sufficient that the judge's conduct and words are, in substance, consistent only with a finding of guilt. The directions given to the jury satisfied that threshold.
The decision in Boag was distinguished on the basis that the plea in that case was entered before a judge rather than a jury, so s 157 had no application there. The judge acknowledged the accused may feel a degree of unfairness given the directed verdicts afforded to his co-accused, but the statutory position left no room for the exercise of any residual discretion.
Orders Made
• Pursuant to s 157, the court finds that it has no jurisdiction to entertain the application for the withdrawal of the guilty plea to Count 2.
Key Takeaways
- Under s 157 of the Criminal Procedure Act 1986 (NSW), once an accused pleads guilty after being given into the charge of a jury and the court accepts that plea, the resulting finding of guilt has the same effect as a jury verdict and the court loses jurisdiction to entertain any application to withdraw it.
- A formal finding of guilt does not require express words such as "I convict." Directions to the jury that the accused need not be considered on a count because he has pleaded guilty, combined with a statement that he will be sentenced on that conduct, are sufficient to constitute a finding in the relevant sense.
- R v Hura [2001] NSWCCA 61 confirms that s 157 (and its predecessor s 91) should not be given an overly technical meaning: what matters is whether, in substance, a finding of guilt has been made.
- The distinction between pleas entered before a jury and pleas entered before a judge alone is material. Regina v Boag (1994) 73 A Crim R 35, which concerned a plea before a judge, has no direct application where s 157 is engaged.
- Perceived unfairness arising from different outcomes for co-accused does not restore jurisdiction once the statutory conditions under s 157 have been met.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86(1), (2), (3)
- Criminal Procedure Act 1986 (NSW), ss 133, 157
Cases
- Griffiths v The Queen (1977) 237 CLR 293
- Maxwell v The Queen (1995) 184 CLR 501
- R v Hura [2001] NSWCCA 61
- Regina v Timothy Ian Boag (1994) 73 A Crim R 35