New South Wales Court of Criminal Appeal CITATION : Regina v Ress [2000] NSWCCA 224 FILE NUMBER(S) : CCA 60663/99 HEARING DATE(S) : Tuesday 6 June 2000 JUDGMENT DATE : 6 June 2000 PARTIES : Regina v James Atilla Ress JUDGMENT OF : Giles JA at 1; Grove J at 2; Greg James J at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0184 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : P.G. Berman (Crown) L. McSpedden with D. Spears (Applicant) SOLICITORS : S.E. O'Connor (Crown) Remington and Co (Applicant) CATCHWORDS : Criminal Law and Procedure - Pleas of Guilty During Course of Trial - Failure to Advert to Statutory Procedure - Motion for Leave to Withdraw Pleas - Premature Appeal LEGISLATION CITED : Crimes Act s 399A Criminal Procedure Act s 91 CASES CITED: R v Ross CCA Unreported 20 April 1994 DECISION : Appeal Withdrawn IN THE COURT OF CRIMINAL APPEAL 60663/99 GILES JA GROVE J GREG JAMES J Tuesday 6 June 2000 REGINA v JAMES ATILLA RESS JUDGMENT 1 GILES JA: We will proceed to the application. I think it appropriate something be said briefly to record how this position has come about. I would ask Grove J to do the necessary. 2 GROVE J: There is before the court an appeal against conviction on three counts of dangerous driving causing death, two counts of dangerous driving causing grievous bodily harm and one count of wanton driving causing bodily harm. The convictions were found after proceedings before his Honour Judge Nield in the Parramatta District Court. His Honour has not yet passed sentence in respect of the convictions. It is appropriate that we record some circumstances which have led to the orders which the court will make. 3 A trial before his Honour and a jury commenced at Parramatta and on the third day of the trial there was an indication in the absence of the jury that the appellant was willing to plead guilty to six of seven counts in the then current indictment. It can be noted in passing that the seventh count related to grievous bodily harm suffered by a passenger in the vehicle being driven by the appellant at the relevant time. That count was withdrawn by the Crown. 4 His Honour proceeded to follow the procedure approved, for example, in R v Ross , unreported CCA 20 April 1994. Unfortunately, neither counsel then appearing drew to his Honour's attention the applicable statutory provision made by section 399A of the Crimes Act . That section has since been repealed and replaced by section 91 of the Criminal Procedure Act . 5 Be that as it may, it would appear that on any view his Honour thereafter proceeded in circumstances which showed that he had accepted the pleas of guilty and intended to proceed to the matter of sentence. 6 This was interrupted by the filing of a notice of motion seeking in its terms leave to withdraw the pleas of guilty. Some evidence was taken in relation to that and, attention still not having been drawn to the statutory provision, his Honour proceeded to deliver a judgment, making findings of fact about the evidence before him and refusing the leave sought. 7 The appeal brought to this Court was couched in terms of being an appeal against conviction, although certain grounds which were filed seemed to be directed towards the correctness or otherwise of the judgment given by his Honour in the matter on motion. I should record that counsel presently appearing in the appeal were none of them counsel appearing at first instance. 8 The intent of the appellant is to have this Court exercise its jurisdiction to consider whether there has been miscarriage of justice in the acceptance of the pleas of guilty offered in the District Court. There are procedural problems involved in a number of aspects. 9 The judge at first instance heard evidence which, in the conventional course of a challenge such as that which I have mentioned, would be the subject of application for leave to be adduced as fresh evidence before this Court. Were this Court simply to act upon the evidence as recorded below, problems arise as to what weight, if any, can be given to findings of fact by the judge at first instance. Mr Berman of counsel, for the Crown, has also pointed out the inevitable handicap to the Crown in being prevented, if the course of looking at the evidence below were simply taken, from adducing evidence on its own behalf. 10 Ms McSpedden, leading counsel appearing for the appellant in this appeal, has sought instructions from her client. As is perfectly understandable, it would not be possible or practicable for admissions to be made conceding all the findings of fact by the trial judge. 11 The sentence of the appellant is still outstanding and the court raised with counsel the prospect of the matter being returned to the District Court for completion of the proceedings there. The intention is that upon completion of those proceedings the appellant should have preserved to himself any rights that he would have had but for the misapprehended excursion which has already taken place. In order to achieve this, counsel has sought instructions and confirmed them to this Court that the appeal should be, subject to the leave of the Court, withdrawn. That leave should, in my opinion, be granted. 12 These remarks are made in order to properly record that it is not the intention of the Court that there be any prejudice to the appellant or to the Crown in respect of respective rights arising out of the proceedings below. 13 Accordingly, I would propose that leave to withdraw the appeal be granted to the appellant. 14 GILES JA: I agree, and I adopt the remarks made by Grove J. 15 GREG JAMES J: As I do also. 16 GILES JA: The order is leave be granted to withdraw the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.