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Supreme Court 14 July 2025

R v Kilby

[2025] NSWSC 734

Homicide
CRIME NOTICE OF MOTION APPLICATION DISMISSED

Citation: R v Kilby [2025] NSWSC 734
Court: Supreme Court of New South Wales
Date: 14 July 2025
Judge(s): Yehia J

Background

The accused was charged with murder under s 18(1)(a) of the Crimes Act 1900 (NSW) in March 2023. On 21 February 2025, the matter came before the Local Court at Parkes, where it was committed to the Supreme Court for sentence. Both the accused and his solicitor appeared via audio visual link, and the proceedings were hampered by significant technological difficulties with that system.

Following committal, the accused filed an Amended Notice of Motion seeking to have the matter remitted to the Local Court at Dubbo for a further committal hearing. The basis for the application was uncertainty about whether the Magistrate had properly ascertained the accused's plea, as required by s 95(4) of the Criminal Procedure Act 1986 (NSW). This uncertainty had consequences for whether the accused was entitled to the early guilty plea sentencing discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legal Issues

  • Whether the Magistrate sufficiently complied with s 95(4) of the Criminal Procedure Act 1986 (NSW) by ascertaining whether the accused pleaded guilty to the charge on the charge certificate
  • Whether a plea of guilty was "entered" and "accepted" for the purpose of s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), entitling the accused to a 25% sentencing discount
  • Whether the matter should be remitted to the Local Court for a further committal hearing under s 101(1)(c) of the Criminal Procedure Act 1986 (NSW)

Decision

Issue 1: Compliance with s 95(4) and acceptance of the plea

Yehia J accepted that an intention to plead guilty is not, by itself, sufficient to satisfy the legislative requirements (at [10]-[11]). However, her Honour found that what occurred in this case went beyond a mere intention. The Magistrate's enquiry as to whether the matter was to be committed for trial or sentence, and the response from both the Crown and the accused's solicitor that it was to be committed for sentence, constituted sufficient ascertainment of the plea in the circumstances (at [11]).

Her Honour was satisfied that the Magistrate accepted the plea of guilty by committing the matter for sentence (at [15], [18]). Several factors supported this conclusion: the accused was represented by a competent solicitor, the difficulty arose from technological malfunction rather than any ambiguity in intent, and there was only one charge before the court, leaving no room for confusion (at [11]).

Issue 2: Entitlement to the sentencing discount

The Crown accepted, and her Honour agreed, that the accused's plea of guilty was accepted by the Magistrate in the Local Court, with the result that the accused is entitled to a 25% discount on sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [13]).

Issue 3: Remittal to the Local Court

Yehia J dismissed the application to remit the matter (at [15], [18]). Her Honour noted that rigorous compliance with the relevant legislation is essential to fairness and justice, but found that sufficient compliance was established on the facts here. The court also observed that where multiple charges are involved, a Magistrate must enquire as to each charge separately and accept each plea either expressly or inferentially in a way that clearly satisfies s 25D(2)(a), though that was not required on the single-charge facts of this case (at [16]).

Orders Made

  • Notice of Motion dismissed
  • Listing of the matter for sentence at the Supreme Court in Orange on 7 July 2025 confirmed

Key Takeaways

  • Under s 95(4) of the Criminal Procedure Act 1986 (NSW), a Magistrate must positively ascertain whether an accused person pleads guilty to the relevant charge; an intention to plead guilty alone does not satisfy that requirement (at [10]-[11]).
  • Where technological difficulties impede committal proceedings, courts will assess compliance with s 95(4) by reference to the totality of the circumstances, including the presence of experienced legal representation and the absence of any charge-related ambiguity (at [11]).
  • A Magistrate's enquiry as to whether a matter is to be committed for trial or sentence, answered clearly by both parties as "for sentence," can constitute sufficient ascertainment and acceptance of a guilty plea on a single-charge committal (at [15], [18]).
  • In multi-charge committals, the Supreme Court confirmed that a Magistrate must enquire about each charge individually and accept each plea either expressly or inferentially in a manner that clearly satisfies s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [16]).
  • Compliance with the legislative regime governing committal pleas is described as not onerous, and the court noted that proper compliance at the time avoids the more cumbersome outcome of remittal for a further committal hearing (at [17]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), 18(1)(a)
- Criminal Procedure Act 1986 (NSW), 95(4), 101(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW) , 25D(2)(a)

Cases
- Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960