Friday, 17 January 2014

Law report - requirement to take a full plea

Cox v the Queen [2014] SC Bda 2 App

The Appellant had been sentenced to a term of imprisonment for a sex offence on the basis of a purported guilty plea in the Magistrates Court. He appealed against his conviction and sentence.

Unfortunately, it appeared that this was based on a mistake. Although the appellant had indicated that he had wished to change his plea from not guilty to guilty, this was not formally accepted by the court. The matter was adjourned and, the next time it came before the court, the court mistakenly proceeded on the basis that he had already pleaded guilty.

Justice Hellman ruled that there had not been any conviction, as the law provides that there can only be a conviction after a plea or finding of guilt (at [21]-[32]). However, he went on to quash the conviction (at [39]). He also ruled that it would not be in the interests of justice to order a re-trial on the basis that he had already spent over a year in prison, the offence was not a particularly serious one, and it would be an ordeal for the 13 year old complainant to have to give evidence again.

Comment - The judge commented that it might appear illogical to quash a conviction that had not actually occurred (at [44]). He also said that he could achieve a similar result by treating it as an application for judicial review and granting public law relief (at [45]).

I think that the judge's indication of a similar result with public law relief points to a solution which would have avoided any logical inconsistency. In my view, the proper analysis is one of an unlawful imprisonment, which could have been dealt with by treating the appeal as an application for habeas corpus or judicial review, and making an order mandating the prisoner's release and a declaration that he had not been convicted.

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