R v Tailford

1. [1]

   HIS HONOUR: Darryle Lee Tailford is accused of the murder of Richard (or Ricky) Eggins. The Indictment (Exhibit A in the proceedings) is, unusually nowadays, in a form which charges both the murder and, in the alternative, manslaughter.

2. [2]

   The accused pleads not guilty to the charge of murder and guilty to the charge of manslaughter. The Crown does not accept the plea of guilty to manslaughter in full satisfaction of the indictment.

3. [3]

   The accused asks the Court to leave only the charge of murder to the jury and, if there be a verdict of not guilty to that charge, for the Court to deal with the manslaughter on the basis of the plea of guilty. The Crown joins in that application.

4. [4]

   The Crown, helpfully, provided the Court with a reference to the Criminal Trial Courts Bench Book [1] (hereinafter “the bench book”) and the judgment of Cogswell SC DCJ [2] on the practice in Australia and elsewhere.

5. [5]

   On reading the bench book and the judgment of his Honour I was satisfied that I could adopt the practice urged by both senior counsel for the accused and counsel for the Crown. I reserved reasons for judgment. These are the reasons.

6. [6]

   More usually, an indictment for murder charges only the murder (and any other separate charges) and does not charge manslaughter. Manslaughter is left, in those circumstances, as an alternative verdict available to the jury pursuant to the common law and s 153 of the Criminal Procedure Act 1986 (NSW). Murder is charged pursuant to s 18(1)(a) of the Crimes Act 1900 (NSW). The practice sought by the accused is not without complications.

7. [7]

   The provisions of s 18 of the Crimes Act describe murder and specify that every punishable homicide, other than murder as defined, shall be taken to be manslaughter. [3]

8. [8]

   As already stated, ordinarily, manslaughter is not separately charged and the crime of manslaughter does not require separate charging, when murder has been charged. Where an accused has been charged with murder, the jury has the capacity, if they were to return a verdict of not guilty to murder, of returning a verdict of guilty to manslaughter. This is a consequence of the history that an unlawful killing was a felony at common law and, it is said, murder and manslaughter are each a description of the one felony at common law. [4]

9. [9]

   Trial judges have traditionally referred to the availability of manslaughter, on an indictment alleging murder, as the “statutory alternative”. This terminology was reflective of the express legislative provision in s 23(2) of the Crimes Act, which was later repealed by the promulgation of the Crimes (Homicide) Amendment Act 1982 (NSW). The provisions of s 23 of the Crimes Act now only deal, relevantly, with manslaughter as a result of provocation.

10. [10]

    Nevertheless, as a result of the operation of the common law, manslaughter is, subject to factual context, an available alternative to murder, when an indictment for murder is presented.

11. [11]

    The Crown and Mr Wilson SC, who appears for the accused, rely on the provisions of s 153 of the Criminal Procedure Act. The difficulty with the operation of s 153 of the Criminal Procedure Act, in the circumstances before the Court, is that the provisions of s 153 expressly apply to a situation where an accused has been arraigned on an indictment for an offence and can lawfully be convicted on the indictment of some other offence, which has not been charged on the indictment. In these proceedings, the other offence is charged on the indictment.

12. [12]

    As a consequence, s 153 of the Criminal Procedure Act does not strictly apply. Further the foregoing is complicated by the provisions of s 154 of the Criminal Procedure Act.

13. [13]

    The provisions of ss 153 and 154 of the Criminal Procedure Act are in the following terms:

14. [14]

    The terms of ss 153 and 154 of the Criminal Procedure Act were, historically, enacted in the Crimes Act. They formed the provisions of ss 394A and 395 of the Crimes Act and were, for obvious reasons, moved into the Criminal Procedure Act. They are the subject of early consideration. [5]

15. [15]

    As a consequence of the operation of s 154 of the Criminal Procedure Act, once an accused person, arraigned on an indictment, pleads “not guilty”, in this case to a murder, the Court is required to order a jury for trial accordingly. This has been done.

16. [16]

    A jury has been ordered for the charge of murder contained on the Indictment. The difficulty is the application before the Court seeks to have the Court deal with the murder and leave to a point in time after a possible verdict of not guilty, for the Court to deal, separately, with the plea of guilty to manslaughter.

17. [17]

    As earlier stated, there are complications. If, as is stated in Downs, [6] murder and manslaughter are each a description of the one felony at common law, there may be issues associated with autrefois acquit. Having been acquitted of the felony of murder, without dealing with manslaughter, how does the Court then, subsequently, deal with the same felony in so far as it alleges manslaughter.

18. [18]

    In relation to alternative charges, generally, there is authority on the issue. That authority discloses a divergence of practice between New South Wales and Victoria. The New South Wales practice follows the practice adopted in England, which is to the effect that the only count that goes to the jury is the count for which the accused has pleaded not guilty.

19. [19]

    It is necessary to discuss the circumstances that may arise in practice. If there is a single count on an indictment, leaving aside murder for the time being, and an accused pleads not guilty to that count but guilty to a lesser offence that the jury could lawfully return on the indictment, two situations arise.

20. [20]

    First, the Crown may accept the plea of guilty to the lesser offence, treating the accused as having been acquitted on the count on the indictment and having pleaded to the lesser offence. That practice applies to murder and manslaughter as well. [7]

21. [21]

    On the other hand, if the Crown does not accept the plea to the lesser offence in full satisfaction of the indictment then, ordinarily, the plea to the lesser offence is treated as having been withdrawn and the trial continues on the count on the indictment, leaving to the jury both the charge that has been preferred and the lawfully available alternative which the jury could return. [8]

22. [22]

    Hazeltine, supra, was a situation where the accused, who was charged on indictment with wounding with intent to cause grievous bodily harm; pleaded not guilty to that offence but, in accordance with an alternative available under the UK statute, pleaded guilty to unlawful wounding. The Crown refused to accept the plea in full satisfaction or in satisfaction of the indictment. When the jury returned a verdict of not guilty, the UK Court of Appeal held that the earlier guilty plea to the lesser offence had been deemed to be withdrawn and the verdict amounted to an acquittal on both offences.

23. [23]

    Nevertheless, in that circumstance, each offence was separate. The wounding with intent to cause grievous bodily harm was an offence under s 18 of the Offences against the Person Act 1861 (UK) and the lesser offence was an offence under s 20 of that same statute. The lesser offence was a misdemeanour and the offence under s 18 of the Offences against the Person Act was a felony.

24. [24]

    In the course of the Court’s judgment, Salmon LJ, referring to s 39(1) of the Criminal Justice Administration Act 1914 (UK), which allowed a plea to a lesser charge, said:

25. [25]

    The UK Court of Appeal went on to distinguish the judgment in R v Cole [9] as a case concerning a situation where there were two counts on the indictment, one charging a serious offence and, in the alternative, one charging a lesser offence. The Court confirmed that the procedure outlined in Cole was the proper procedure to be followed in those circumstances.

26. [26]

    The judgment to which Salmon LJ referred, Cole, [10] concerned an indictment in which the accused was charged, together with three other persons, alleging conspiracy, armed robbery and receiving. The accused pleaded not guilty to conspiracy and armed robbery, but guilty to receiving. The accused, having pleaded to receiving, submitted that, having pleaded guilty to the alternative count, that plea must stand and he could not be tried for either the conspiracy or the armed robbery on the basis of autrefois convict.

27. [27]

    The trial judge ruled that he should stand trial on the count of armed robbery and ordered that a plea of not guilty be entered to the count of receiving. The jury was unable to agree on their verdict and a new trial was ordered.

28. [28]

    There was a second trial at which the same events occurred, including the failure to be able to reach a verdict. A third trial occurred and the trial judge ordered the count of receiving to be severed and the jury found the defendant guilty of armed robbery. The appeal argued that the conviction for armed robbery could not stand because of the effect of the plea of guilty to the count of receiving.

29. [29]

    The UK Court of Criminal Appeal, consisting of Lord Parker CJ and Marshall and Widgery JJ, dismissed the appeal on two bases. First, the Court held that the plea of guilty to the lesser offence did not constitute a conviction until that conviction was recorded, usually when sentence has been passed. [11] Further, in that respect, it held that the judge had a discretion to refuse to accept the plea of guilty to the lesser charge. [12] As a consequence the defendant had been properly tried and convicted on the more serious count of armed robbery.

30. [30]

    More importantly for present purposes, the UK Court of Criminal Appeal discussed the practice of accepting a plea of guilty to an alternative count in circumstances where the Crown did not accept that plea in substitution for the charge for the more serious count. This was the procedure expressly approved by Salmon LJ to which earlier reference has been made at paragraph 24 of these reasons. In that discussion, Lord Parker CJ, on behalf of the Court, said:

31. [31]

    The practice in Victoria is different from that in England and Wales and is best illustrated by the judgment of the Full Court of the Supreme Court of Victoria in R v Broadbent. [14] There is also a further judgment of the Victorian Court of Appeal in DPP v Collins. [15]

32. [32]

    In Collins, Winneke P, addressed the practice in relation to alternative counts, each of which were the subject of a count on an indictment. The charges in Collins both related to a drug of dependence, methamphetamine, with one charge being for trafficking under s 71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic) and the other charge being for possession under s 73(1)(c) of the same statute.

33. [33]

    The accused entered a plea of not guilty to the more serious offence of trafficking and guilty to the offence of possession and the trial judge charged the jury only with the trafficking offence. The trafficking offence was based upon that which, in New South Wales, would be called deemed supply, which in Victoria is referred to as “possession for sale” and extends the meaning of supply and/or trafficking. The trial judge sentenced the offender on the more serious offence and adjourned the less serious offence for a period of 12 months without conviction on the basis that there was a formal bond.

34. [34]

    The appeal before the Victoria Court of Appeal was a Crown appeal on the basis of manifest inadequacy. It related to the sentence imposed for the trafficking offence.

35. [35]

    In the course of the appeal, the offender submitted that the conviction in relation to the trafficking offence was a nullity because of the conviction for the possession offence and the doctrine of autrefois convict. In the course of its reasons for judgment the Victorian Court of Appeal [16] approved the comments in a previous judgment in R v Weeding. [17] The Court [18] there said:

36. [36]

    The trial judge had made it clear, during the course of the trial, that the jury was charged with the more serious offence and did not need to return, or was not capable of returning, a verdict on the lesser charge.

37. [37]

    The Victorian Court of Appeal purported to rely upon the judgment of O’Bryan J in Broadbent, to which earlier reference has been made. However, properly understood, the judgment in Broadbent makes it clear that, where the situation arises of a plea of guilty to a lesser offence, not accepted in full satisfaction of the more serious offence, “the Court should not record a conviction of guilty of the lesser offence”. [19]

38. [38]

    Apparently, in Collins, supra, the Court took that to mean that the plea of guilty could not be received and, as a consequence, that lesser charge could not be dealt with otherwise than by the jury charged to decide the more serious offence. Yet, a plea of guilty is not the recording of a conviction. The recording of a conviction occurs, both in practice and in law, after entry of the verdict and is usually part of the sentencing process.

39. [39]

    It is accurate, as described in Broadbent, and as confirmed in Collins, to say that there are inconveniences associated with separating the charges in the way suggested by counsel in the case now before the Court. But the doctrine of autrefois convict relies on the entry of a conviction; not the plea of guilty.

40. [40]

    If the judgment of the Full Court of the Victorian Supreme Court had been confined to that which has already been recited, there would be no inconsistency, necessarily, between the Victorian approach and that already recited in relation to the United Kingdom.

41. [41]

    However, the Full Court of the Victorian Court of Appeal continued to state that the practice outlined in Broadbent, and not the practice referred to in England and Wales, ought to be followed. The only qualification to that proposition is that at one stage the practice is referred to as “preferable”, rather than necessary.

42. [42]

    The Full Court of the Victorian Court of Appeal noted the different practice in South Australia, which followed the practice in England and Wales. [20] It also referred to the practice in Queensland, which preferred the practice adopted in Broadbent, but did not lay down general rules of practice. [21]

43. [43]

    The Victorian Court of Appeal did not discuss the practice or any judgment in New South Wales. Ordinarily, a trial judge in New South Wales should not depart from a judgment of the Victorian Court of Appeal on an issue that relates to the operation of the common law of Australia, unless it is plainly wrong. [22]

44. [44]

    However, the effect of the judgments in Broadbent and Collins is not to lay down principles of common law applicable to Australia. Rather, it sets out a preferred practice in Victoria that, in its terms, differs from the practice in South Australia, but accords with the practice in Queensland. Further, it differs from the practice in England and Wales.

45. [45]

    In New South Wales, there is authority on the issue, [23] binding on the Court as presently constituted. Thompson, supra, related to a charge and backup charge of assault with intent to rape (as it was then called) and common assault. Again, there was a plea of guilty to the lesser offence and a plea of not guilty to the more serious offence. The trial judge followed the practice outlined by the UK Court of Appeal in Hazeltine, supra, and Cole, supra.

46. [46]

    The Court of Criminal Appeal [24] described the practice of the accused allowing a plea of guilty to stand, notwithstanding that when proffered it was rejected at the commencement of the trial, to be “relatively rare”. [25] The Court of Criminal Appeal remarked that the practice recited in Hazeltine, supra, and derived from Cole, supra, was “an adequate basis for dealing with what could probably be regarded as the relatively rare circumstance in which counsel for an accused allows a plea of guilty to stand notwithstanding that when proffered it is rejected at the commencement of the trial.” [26]

47. [47]

    As a consequence of that determination by the Court of Criminal Appeal in Thompson, supra, the Court as presently constituted is bound to take the view that the practice adopted in Hazeltine and deriving from Cole and applied in the United Kingdom and, it seems, South Australia, is an appropriate practice in New South Wales, albeit rarely utilised.

48. [48]

    The reason it is rarely utilised is that when the plea of guilty is proffered to the lesser charge and rejected by the Crown as satisfying the charge on the more serious offence, it is deemed to have been withdrawn, unless some express adherence or application to adhere to it is made.

49. [49]

    There are two other issues that were not addressed by counsel and seem to arise as a result, not of the practice in general, but at least on the practice as it applies to murder and manslaughter.

50. [50]

    The foregoing practice, adopted by the Court in these proceedings, applies to charges on an indictment. Most often the charge of manslaughter is not preferred on the indictment. The charge of murder is preferred and the verdict of manslaughter is available to the jury as a result of the operation of statute and/or common law. [27]

51. [51]

    As a consequence, s 153 of the Criminal Procedure Act applies and allows the accused to plead guilty to manslaughter. That may, or may not, be accepted by the Crown in full satisfaction of the indictment. If the situation is that a plea to manslaughter is accepted in full satisfaction of the Indictment, then the verdict of guilty to manslaughter is entered and sentencing occurs as a result.

52. [52]

    Further, the verdict of not guilty of murder is entered or the charge of murder is withdrawn by the Crown. [28] The comments in Hazeltine and Cole, and the judgment in Thompson, do not deal with statutory or common law alternatives that have not been charged.

53. [53]

    There is in that latter circumstance only one charge on the indictment. The charge for the statutory or common law alternative has not been preferred and the rationale for the practice relating to a situation where the Crown does not accept the plea in full satisfaction of the indictment does not seem to apply where there is no charge before the Court.

54. [54]

    The provisions of s 154 of the Criminal Procedure Act add to that complication. Once an accused pleads not guilty to the only relevant charge on the indictment, s 154 of the Criminal Procedure Act requires the Court to order a jury for trial accordingly, assuming the plea to the available lesser offence is not accepted.

55. [55]

    On the trial, relevantly, for murder, the jury is then able to return a verdict of manslaughter and the plea to manslaughter is or can be evidence of the admission of the minimum elements necessary for the offence. [29]

56. [56]

    Evidence of the plea can be adduced in the trial on murder to establish admissions as to, for example, a deliberate act causing death by the accused, leaving the only issue on the charge of murder to be the possession by the accused, at the time the act was performed, of the requisite intention or state of mind, including reckless indifference.

57. [57]

    There are two further issues, one of which was the subject of comment in Cole but which causes some care to be taken at the time that the verdict is given by the jury; and the second relates to the circumstance that murder and manslaughter are, under the common law, the one felony.

58. [58]

    The first aspect relates to the fact that it is said that murder and manslaughter represent the one offence of homicide, yet, the one offence has been charged in alternative ways. That circumstance is the opposite of duplicity, but there is significant authority that each count on an indictment is as if it were a separate indictment and must represent a separate offence. It is certainly a separate indictment for the purpose of evidence and judgment. There is also authority that, at least as a matter of preference or practice, an indictment for murder or manslaughter should not contain other charges. [30]

59. [59]

    Notwithstanding the authority on the proposition that each count on an indictment is to charge a separate offence, given that this Indictment charges murder and, in the alternative, charges manslaughter, there is no irregularity. It would be very different if the manslaughter charge was not, expressly, charged in the alternative.

60. [60]

    The second aspect relates to the difficulties associated with taking the verdict. As has been made clear earlier in these reasons, ordinarily an indictment charges murder and the jury, charged with determining murder, has available to it the alternative charge of manslaughter. Where, as here, the Indictment charges both murder and, in the alternative, manslaughter; and manslaughter is not before the jury; care must be taken to ensure that the Court does not contravene the principles associated with autrefois acquit or autrefois convict.

61. [61]

    While it is an unusual process, currently a judge presiding over a jury trial is not required or bound to receive the verdict that is delivered. The judge can require the jury to reconsider. [31] The capacity, to send a jury back to consider further the verdict they have indicated, applies even where the verdict first indicated is a verdict of not guilty. [32]

62. [62]

    Moreover, the verdict delivered by a jury may be rectified by the jury, even after entry, and, under the common law, a judgment could be arrested. [33]

63. [63]

    Returning to the issue of the kind of counts on an indictment, it must be recalled that from a very early time there was provision that, other than in capital counts, any number of distinct offences of the same kind could be charged. This was confined, on a statutory basis to three, but the confinement was not a limitation on the common law rule that any number of distinct offences could be charged. Rather, the confinement was a restriction on the prosecutor being called upon to elect which of the felonies would be the subject of trial. Those provisions were contained, initially, in s 316 of the Criminal Law Amendment Act 1883 (NSW) and, latterly in s 370 of the Crimes Act. [34]

64. [64]

    As has been already mentioned, there are issues, particularly because the offence of murder and manslaughter are the same common law offence, associated with autrefois convict and/or autrefois acquit. But, as the foregoing summary in Cole [35] makes clear, the issue of autrefois convict and/or autrefois acquit arise only on entry of the judgment.

65. [65]

    Further, as earlier stated, when a verdict is delivered, the verdict is not, of itself, enforceable and could be altered either by requiring the jury to reconsider or by the arrest of judgment or rectification of verdict. Nevertheless, care must be taken when the verdict is delivered to ensure that the verdict is not entered prior to dealing with the plea of guilty on the alternative count. While I doubt that, in any practical sense, any technical inappropriateness in the order in which the verdicts would be entered would give rise to the doctrine of autrefois acquit, it is a matter that, if it be possible, should be avoided.

Conclusion

1. [66]

   I accept that the foregoing analysis of the difficulties associated with the procedure for which both the Crown and the accused have advocated and which was adopted by the Court is probably an over complication of that which otherwise is a relatively simple proposition. Nevertheless, there are inconveniences associated with the proposition adopted by the Court on the submission of both the Crown and counsel for the accused.

2. [67]

   From the foregoing analysis, a number of issues of principle arise:

3. [68]

   While the foregoing statement of principle and/or practice arising from an assessment of the issues arising from the application of the Crown and the accused is implementing a practice that may be overly careful, it is a practice that, in relation to the last few steps, would plainly avoid any issue associated with autrefois acquit. It has to be said, that there are significant inconveniences associated with the practice for which the Crown and the accused agitated in this trial. Nevertheless, it is a practice that accords with authority in New South Wales, South Australia and England and Wales. It is contrary to the practice adopted, it seems, in Victoria and Queensland.

4. [69]

   For the foregoing reasons, the Court adopted and implemented the practice and procedure for which the parties in these proceedings applied and, in particular, shall enter verdicts in the manner described in [67] (x) and (xi).