Special Bulletin 1 — October 2002

This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book

R v Radic [2001] NSWCCA 174

Necessity to carefully comply with s 51A of the Justices Act 1902 (NSW)

 

The recent judgment of the Court of Criminal Appeal in R v Radic demonstrates the necessity for strict compliance with the provisions of s 51A(1) of the Justices Act 1902 (NSW) when an accused person is committed by the Local Court to the Supreme Court or the District Court for sentence in relation to an indictable offence. The appellant pleaded guilty in the Local Court to a charge of break, enter and steal pursuant to s 112(1) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court. The particulars of the charge specified the theft of property to the value of $38,100, being jewellery and $1500 in cash. When the matter came before the sentencing judge, the appellant denied stealing the items particularised but admitted stealing an electric drill to the value of $40, which had never been particularised. With the consent of the parties, the sentencing judge then heard evidence to resolve this issue. The Court of Criminal Appeal held that this was an inappropriate course.

The following principles (inter alia) may be deduced from the judgment —

1. 

The Local Court should not accept a plea of guilty unless the defendant admits all matters which are of the essence of the charge. If there is a dispute as to whether certain particulars in the charge as framed constitute an essential part of the alleged offence, such dispute should be resolved by the Local Court. This is necessary to ensure that the committing magistrate and the parties are ad idem as to the matters to which the plea constitutes an admission. If there is a lack of consensus in this regard, the magistrate should reject the plea of guilty (see: s 51A(1)(a)), and the matter would then continue as if the plea had not been made (see: s 51A(1)(b)).

2. 

If the plea of guilty is accepted and the defendant is committed for sentence to the Supreme Court or the District Court, and a dispute then arises as to the ingredients of the charge to which the person pleaded guilty, there are two courses available to the judge before whom the matter comes for sentence. The judge may refuse to accept the plea and remit the matter to the Local Court. Alternatively, the judge may, in an appropriate case, refuse to accept the plea of guilty, direct that a plea of not guilty be entered and then make orders as to the future conduct of the matter in the court to which the matter was remitted. Section 51A(1) makes no provision for the judge to conduct an inquiry to resolve disputes of this nature.