R v DIB [2002] NSWSC 934

Reported Decision : (2002) 134 A Crim R 329

New South Wales Supreme Court

CITATION : R v DIB [2002] NSWSC 934 revised - 11/10/2002 FILE NUMBER(S) : SC 70104/01 HEARING DATE(S) : 16-30 September 2002 JUDGMENT DATE : 9 October 2002

PARTIES : Regina Moustapha Dib JUDGMENT OF : Hulme J at 1

Mr P Conlon SC (Crown) COUNSEL : Mr W Terracini SC (Accused) Mr P Newton (Accused) SOLICITORS : SE O'Connor (Crown) TA Murphy (Accused) CATCHWORDS : Criminal Law - abuse of process - plea of guilty to manslaughter DECISION : Plea of guilty to manslaughter not accepted

- 36 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

9 October 2002

70104/01 REGINA v MOUSTAPHA DIB JUDGMENT on whether the Accused's Plea should be accepted. 1 HULMEJ: On Monday 16 September 2002 the above-named Accused was indicted on a charge that he did murder Edward Lee. A jury was empanelled and the trial proceeded until Friday 28 September. At the commencement of that day the Crown Prosecutor informed me that there had been discussion between counsel and asked me to adjourn the proceedings so that he could place a report before the Director of Public Prosecutions concerning the possible acceptance of a plea in the matter. Neither counsel wished to continue with either of 2 part-heard witnesses meanwhile. 2 I acquiesced in this request and stood the matter over until Monday 30 September. Before doing so however, I indicated that I saw some difficulty in sentencing the Accused for manslaughter and made reference to Maxwell v R (1995-96) 184 CLR 501. In his opening the Crown had informed the jury that there would be no issue that Edward Lee was murdered but the Accused had served a Notice of Alibi and that the case would be about proving that it was the Accused who had done the stabbing which resulted in Edward Lee's death. Remarks of Mr Terracini SC who appeared for the Accused, made in the absence of the jury, confirmed that "who did it?" was the pivotal issue. The Crown Prosecutor responded to my remark about difficulty by indicating that provocation would be involved. 3 On Monday 30 September, I was informed that the Director of Public Prosecutions had indicated that if the Accused were re-indicted the Crown would accept a plea to manslaughter on the basis of a loss of self-control. I responded to the effect that I was not conscious of any evidence of provocation. The balance of the morning was spent in the Crown and to a much lesser extent Mr Newton, junior counsel for the Accused trying to persuade me that there was such evidence and that I should accept the plea. 4 At 2 pm I was informed by the Crown Prosecutor and Mr Newton that the jury would have to be discharged. The reason advanced by Mr Newton was that "myself and Mr Terracini (who did not appear that day) now have written instructions that would not allow us to further appear in the matter before the jury. In that event the only consequence would be that the Accused would be representing himself and that is not a situation that your Honour could countenance at this stage." After some further discussion in which I indicated that I was unable to see why counsel could not continue, Mr Newton said that if the trial proceeded he and his leader would be withdrawing and, in effect, that that was that. After some further urging from the Crown I did discharge the jury. 5 Neither I nor counsel adverted to s91 of the Criminal Procedure Act although, given the difficulty counsels' withdrawal must have occasioned the Accused if the trial had continued, it may be that attention to s91 would have made no difference. 6 After some further discussion on the question of whether any plea should be accepted, the Accused was again indicted on the charge that he did murder Edward Lee. He pleaded not guilty to murder but guilty to manslaughter and the Crown Prosecutor said that the Crown would accept that plea in full satisfaction of the indictment. I again indicated that I was not prepared at that stage to accept the plea, reserved my decision on that question and stood the matter over until Wednesday 9 October. It was agreed that there would be submitted a statement recording any facts additional to the evidence I had heard which I would be asked to take into account. On 1 October I received from the Office of the Director of Public Prosecutions a Statement of Agreed Facts. On 3 October there was faxed by counsel who appeared for the Accused a document entitled "FACTS TO BE ASSERTED BY ACCUSED ON PLEA OF GUILTY TO MANSLAUGHTER". I was informed and accept that "The Crown Prosecutor … had indicated that that Crown does not dispute the contents of the document". 7 The question of a judge's powers in respect of the acceptance of a plea were the subject of detailed consideration by the High Court in Maxwell v R (1995-1996) 184 CLR 501. At some stage it will be necessary for me to refer to that case in more detail but it is sufficient for the moment to say that the decision made plain that while a judge is entitled to reject a plea, this can occur in only a limited range of circumstances.