Monday, June 27, 2011

Special leave watch: R v Guariglia

I've previously blogged about R v Guariglia [2010] VSCA 343, critical of the majority's decision to allow the appeal and its reasoning. It seems that the DPP was also unhappy with the decision, as the Crown recently sought special leave to appeal the decision (transcript here). Regretably, the High Court knocked back the application, holding that it was not a suitable vehicle and there were insufficient prospects of success.

On reading the transcript, there don't appear to be many indications of what the High Court thinks about the general issues in the case. The questions that were asked involved:
  • an indication of scepticism about any practice of the judge referring to the strength of Crown case;
  • a recognition that the issue relates to the free choice of plea;
  • an inquiry whether this was a test case;
  • an inquiry about the current status of the accused and whether he was serving time on other matters.
I must say that the DPP's argument that this was all about case management in criminal trials is a bit of a reach. I suspect that it was necessary to formulate the case that way in order to meet the general importance requirement for special leave. It did, however, invite the view that the trial judge's purpose was to pressure the accused to plead guilty, so as to get rid of the proceeding. And that view of the trial judge's actions plays into the position taken by the majority from the Court of Appeal that judicial statements about discounts on a guilty plea and the strength of the Crown case deprive a person of a free choice of plea.

Encouraging guilty pleas certainly is a way to economically resolve the business of the court and, to that extent, could be part of good case management. But where do you draw the line between proper case management and improper pressure to forfeit the right to put the prosecution to its proof? The difficulties I see with Guariglia are not the sort of "big picture" issues that would attract special leave. Instead, they relate to the court's presumption that the plea was involuntary despite the evidence that the accused was represented by competent counsel and was well able to protect his interests (as shown in his insistence that the Crown drop forfeiture proceedings against his car in exchange for the plea of guilty).

The long term effect of Guariglia are hard to predict. If the County Court adopts a cautious approach to the issues raised by the case, then judicial statements about the guilty plea discount will disappear from case management hearings, along with any preliminary thoughts about the strength of the Crown case. An intermediate step would be to continue to refer to guilty plea discounts, but omit any statements about the Crown case. In each case, the combined effect of the Court of Appeal's decision and the refusal of special leave will likely leave County Court judges more cautious about making any statements that might sway the accused's decisions regarding the plea.

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