Dean v R [2019] NSWCCA 27
Dean v R [2019] NSWCCA 27 · Read the judgment on AustLII
Catchwords: Disputed facts – Where plea to offence where element is disputed
What happens when everybody agrees that an offence has occurred, but they don’t agree about the specific elements (as distinct from the surrounding, inessential, facts)? If your answer is ‘a disputed facts hearing’, then the CCA has determined that you are wrong; following this decision it appears that the only solution is a trial.
The applicant pleaded guilty to seven offences variously to do with using a carriage service to threaten to kill his estranged wife, and his possession near her house of a loaded rifle and ammunition, apparently in furtherance of the threat; he had learned that she had entered into a relationship with a friend of his during their marriage. Importantly, one of the charges – the most serious one – alleged a breach of s33B(1)(a) of the Crimes Act of possessing an offensive weapon (the rifle) with intent to commit an indictable offence. The indictment itself did not specify the indictable offence alleged. Having originally been charged with attempted murder, it would appear that the parties had negotiated the charge down to the s33B(1)(a) charge, but had been unable to agree what the indictable offence should be. In other words, they agreed the offence had been committed, they just differed about how.
At sentence, the judge was asked to determine a preliminary issue, being what indictable offence the applicant had intended with his possession of the rifle: the Crown alleged it was with the intention of killing his wife, whereas he maintained it was merely with the intention of intimidating her. That question was determined adversely to the offender, and he was sentenced to 13 years with a non-parole period of 8 years and 6 months. He appealed, initially simply alleging (amongst other things) that the sentencing judge erred by finding that his intention in possessing the firearm was with intent to kill. During the hearing he amended his appeal to appeal against his actual conviction on that most serious count. In allowing him to amend his Notice of Appeal, the Court (Fullerton J, Hoeben CJ at CL and R A Hulme J agreeing) held that the sentencing judge’s approach to, and determination of, the issue was productive of procedural and substantive unfairness (at [14]).
The Court held that a fact essential to the charge should have been (but was not) particularised in the indictment (at [19]). The effect of the Crown framing the relevant count without averring the indictable offence was to deny the applicant to litigate, to the full extent, the factual matters inherent in the elements of the offence to which the plea of guilty constituted an admission. That opportunity was further curtailed because of the way that the proceedings were conducted (at [21]) – that is, the two-step process.
Here, one of the problems was that the decision of the offender’s intent was dealt with in at the preliminary hearing, held after the plea, but before the sentencing hearing. Further evidence then emerged during the sentencing hearing – by which point the sentencing judge had already found beyond reasonable doubt that the offender had intended to kill his wife – which would have been relevant to the issue of intent. In particular, a psychologist report which included the offender’s assertion that he did not believe the rifle was loaded (though it was), and did not intend to physically harm his wife. Had the issue of the intended indictable offence been determined at the same time as this evidence was considered, then that evidence about intent would have been available to the judge, potentially raising a reasonable doubt as to the applicant’s intent (at [23]).
The consequence was that the conviction on the most serious offence was set aside and the matter remitted to the District Court. There, the Court observed, it would be for the Crown to decide whether it again averred intent to kill as the indictable offence – but if it did so, then it seemed inevitable that the matter would result in a trial.
In daily practice, this is likely to cause some practical problems. A plea of guilty is of course a plea to the essential elements, and a defendant may maintain a plea of guilty despite disputing facts which are not essential to the offence. But where the parties agree that the offence has occurred but differ as to their versions about the elements (as distinct from the surrounding facts), the only resolution is a trial – albeit one suspects that the trial might be shorter than otherwise, and potentially judge alone. That notwithstanding, in the era of ‘Early Appropriate Guilty Plea’ amendments which place non-discretionary statutory restrictions on discounts, in the future that decision could be a particularly stark one for defendants.