R v Hart (No 4)

I wish to record on the transcript that in chambers earlier today, in the presence of Mr Creasey SC, Mr Wilson SC directed me to the provisions of s 153 of the Criminal Procedure Act 1986 (NSW) and to the commentary on that section in the practice edited by R Howie and P Johnson, in answer to my question to him last week about whether, given the plea on arraignment, it was open to the accused to ask the jury for an acquittal of murder and, by implication, also of manslaughter. I am satisfied, having considered the material, that, with respect, Mr Wilson's submission should be accepted.

In particular I have had regard to the decision of the Full Court of the Supreme Court of Victoria in R v Broadbent [1964] VR 333. Having regard to the section and informed by the decision of the Victorian Full Court, I am satisfied that once the Crown elects not to accept the plea of guilty to the lesser offence, at least, where as here, that offence is not pleaded as an alternative count on the indictment, the plea uttered in the presence of the jury is treated as having been withdrawn and the trial continues on the count on the indictment.

I am also satisfied, however, that the plea of guilty to manslaughter made in open court in the presence of the jury is admissible against the accused as an admission to which the jury may have regard against the accused when considering what the proper verdict should be.