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November 2015

Cases

• Excessive intervention in the proceedings by the sentencing judge – Ellis v The Queen [2015] NSWCCA 262
• What amounts to an "early plea" of guilty – Villalon v The Queen [2015] NSWCCA 229

CASES

Updated 30 November 2015

Excessive intervention in the proceedings by the sentencing judge

Appeal – conduct of judge – sentencing – procedural fairness - questioning by judge – whether questioning of witness by judge led to a miscarriage of justice

Ellis v The Queen [2015] NSWCCA 262 – 13 August 2015 Court of Criminal Appeal – Bathurst CJ, Hulme, Garling JJ

The appellant pleaded guilty to an offence of manufacturing a large commercial quantity of ecstasy (MDA). The appellant gave evidence during the sentencing proceedings and during that evidence, the judge intervened to question the appellant. The appellant was asked to identify a co-offender in a photograph that was shown to him. The appellant refused saying that he feared for himself and his family. The sentencing judge subsequently questioned and criticised the appellant and also his solicitor. The appellant withdrew from giving evidence.

As a result of the questioning by the judge, a number of findings that were adverse to the appellant were made, including that there was an absence of evidence from the appellant on certain issues.

The appellant sought leave to appeal on the basis that he had been denied procedural fairness because of the interventions of the judge.

The Court noted in its headnote to the judgment a clear summary of the role of the sentencing judge in such proceedings:

It is not the function of a judge to perform an inquisitorial role, as distinct from adjudicating on issues raised by the parties. There are a number of risks to a fair trial which may occur as a result of excessive intrusion by a trial judge, including the inability of a judge who has descended into the arena to properly assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The ultimate question will be whether the intervention was unjustifiable and resulted in a miscarriage of justice. A miscarriage of justice will occur where the conduct of the judge prevents a party from properly presenting his or her case: see [57], [65].

In this case, it was found that the sentencing judge made a number of interventions in the proceedings which were unwarranted. It was found that those interventions did deprive the appellant of an opportunity to properly present his case. That led to a miscarriage of justice occurring in the proceedings.

Result: The appeal was upheld and the case remitted back to the District Court to be re-heard by another judge.

Comment: In the case of Ellis, the Court of Criminal Appeal has re-enforced the role of the judge in court proceedings. The case also provides a useful reminder to advocates who appear in court proceedings that they should not allow the judge to run the hearing. It is not the judge's role. Some legitimate questioning of the witnesses and the parties by the judge to clarify some issue is of course permissible and often necessary. However, if a judge appears to take over the proceedings or even one aspect of it to the detriment of one party, the advocate is perfectly entitled to remind the judge of his or her role in the proceedings.

What amounts to an "early plea" of guilty

Appeal – sentencing — discount for guilty plea — whether offer to plead guilty to manslaughter indicated at earliest reasonable opportunity — no circumstances eroding utilitarian value of guilty plea — offer to plead guilty made during committal proceedings — sentencing judge erred in discounting head sentence by 20% rather than 25%

Villalon v The Queen [2015] NSWCCA 229 – 26 August 2015 Court of Criminal Appeal – Gleeson JA, Adams, Fagan JJ

The appellant offered to plead guilty to manslaughter during the committal proceedings. The Crown did not accept that offer but at trial, the appellant was acquitted of murder and found guilty of manslaughter. The plea was based on substantial impairment by an abnormality of the mind.

During the sentencing proceedings, the judge provided a discount of 20% rather than the more usual 25% which is provided for an early plea of guilty. The appellant complained on appeal that the finding of a discount of only 20% was erroneous.

The Court noted that there was no entitlement to receive a discount of 25% for a plea of guilty. However, if it is asserted that such a discount is available from the facts, it is necessary for the judge to make some finding as to why it has not been applied. In this case, the Court found that the sentencing judge must have misunderstood the facts. No reason was provided as to why 20% rather than 25% had been applied. The Court found that, in all relative terms, the appellant had offered a plea at the earliest opportunity. The plea was offered in the committal proceedings after an opinion was received from a forensic psychiatrist with regard to the appellant's state of mind at the time of the alleged offence.

Result: The appeal was upheld. The appellant was resentenced.

Comment: The case of Villalon emphasises the need for a judge to make findings of fact to support aspects of the sentencing judgment. In this case, it was necessary to make a finding as to why a 20% discount had been applied rather than another discount. Again, there is a role for the advocate. If a discount of 25% is to be sought during the proceedings, it should be supported by facts that make it clear that the finding is an available one in all the circumstances. A mere assertion of the availability of the discount will rarely meet that test. As the Court in that case noted, there is no entitlement to such a finding.

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