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.

Law Report - unlawful imprisonment of children

JS v Miller [2012] SC (Bda) 32 App (13 June 2012).

A fourteen year old appealed against the decision of the Family Court. He submitted that (1) the Family Court had no right to sentence him to corrective training; and (2) the Bail Act did not apply to children.
It was held by Kawaley CJ that it was abundantly clear that corrective training is not a sentence that can be passed on a child under the age of 16 and that to have imposed such a sentence was wholly inexplicable and "astonishing" [12]. Furthermore, any sentence of corrective training must specify the maximum period of the sentence [22]. The Bail Act 2005 is intended to apply to children as well as to adults [29].

More generally, sentencing courts must exercise constant care to ensure that no person accused or convicted of a criminal offence is unlawfully detained. If an unlawful sentence is believed by counsel involved in a case to have been imposed, prompt action must be taken to bring the unlawful detention to an end [16].


Comment - in a case where somebody has been unlawfully imprisoned by a court, the "Great Writ" of habeas corpus might be used as a swift remedy to get before the Supreme Court to release a prisoner. Habeas corpus is one of the oldest and most effective remedies for preventing unlawful imprisonment. When the court receives the writ, it will command the production of the prisoner before the court, make inquiries into whether the detention is lawful and, if necessary, order the release of the prisoner. It's not supposed to be used for a criminal appeal but it is probably arguable that it is appropriate when it is claimed that the imprisonment is wholly unlawful, as opposed to merely excessive.