Director of Public Prosecutions (SA) v District Court of South Australia and Lawrie

[2005] SASC 260

Supreme Court of South Australia

(Civil: Application for Judicial Review)

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DISTRICT COURT OF SOUTH AUSTRALIA AND LAWRIE

Judgment of The Honourable Justice Layton (ex tempore)

11 July 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA

ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - ORDERS TO QUASH DECISION

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY

Application for judicial review - orders sought in the nature of certiorari quashing an order of a District Court Judge allowing the second defendant to withdraw pleas of guilty - second defendant pleaded guilty to one count of fraudulent conversion and one count of larceny as bailee before a Magistrate - second defendant remanded to District Court for sentencing - whether withdrawal of guilty pleas a matter of right pursuant to s 111 of Summary Procedure Act upon being remanded for sentence pursuant to s 19(5) of Criminal Law (Sentencing) Act - no power of District Court Judge to allow withdrawal of pleas as of right, only upon the exercise of judicial discretion - onus of persuasion on defendant - whether procedural fairness accorded - application allowed - orders permitting withdrawal of plea and an order for a fresh information are quashed - matter remitted to the District Court.

Criminal Law (Sentencing) Act 1988 (SA) s 19(5); Summary Procedure Act 1921 (SA) s 111, s 105; Supreme Court Rules 1987 r 98, referred to.
Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; Craig v The State of South Australia (1994) 184 CLR 163; Eate v Police [2004] SASC 340; J v Lieschke (1987) 162 CLR 447; Kioa v West (1985) 159 CLR 550; R v Roach (1990) 54 SASR 491; R v Clayton (1984) 35 SASR 232; Worthington Eyre v The District Court of South Australia (1997) 193 LSJS 198, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DISTRICT COURT OF SOUTH AUSTRALIA AND LAWRIE
[2005] SASC 260

1. LAYTON J: This is an application for Judicial Review pursuant to Rule 98 of the Supreme Court Rules. I gave liberty to the plaintiff to amend the orders sought. The orders now sought are as follows:

   1An order in the nature of certiorari to quash an order dated 2 May 2005 of a Judge of the District Court allowing the second defendant to change his pleas of guilty entered in the Magistrates Court of South Australia on 15 February 2005.

   2An order remitting the matter to the District Court to be dealt with according to law.

2. The essential facts, which are uncontested, are set out in an affidavit of Domenico Petraccaro sworn herein on 30 May 2005.

3. On 2 February 2005, the second defendant pleaded guilty in the Adelaide Magistrates Court to one count of fraudulent conversion and a second count of larceny as a bailee, both being minor indictable offences.  Those pleas of guilty were entered on the second day of the trial. The second defendant was represented by counsel, at the time when the pleas were entered, and was remanded for submissions on sentence to 18 April 2005.

4. On 18 April 2005, the Magistrate further remanded the second defendant to the District Court for sentence on 2 May 2005 pursuant to s 19 of the Criminal Law (Sentencing) Act1988 (SA). The Magistrate purported to do this pursuant to s 19(4) (see the Certificate of Record Exhibit DP 2 to the affidavit of Domenico Petraccaro) when clearly it should have been s 19(5) which provides:

   19(5)If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before the District Court.

5. On 2 May 2005, the second defendant appeared before a District Court Judge for submissions on sentence. At the hearing, the second defendant, through his counsel, indicated that he wished to withdraw his two pleas of guilty and submitted that he could do so pursuant to section 111 of the Summary Procedure Act 1921 (SA).

6. At that point, the following exchange took place between the Judge and counsel:

   HER HONOUR: …There is no doubt he can change his plea, we will have him re-arraigned. So you are formally withdrawing?

   MR DEVOLLE: Yes.

   HER HONOUR: Mind you, that leaves the outstanding issue of the director’s information. I think at this stage I will allow you to withdraw the plea and the director will want to lay a fresh information.

   MR ALESSANDRINI: My instructions are that the defendant is not able to withdraw a plea as of right.

   HER HONOUR: Well I’m going to, whether it’s out of right or out of discretion, Mr Alessandrini, so don’t waste your words.

   MR ALESSANDRINI:  I don’t have specific instructions in relation to the reasons for the director’s position, if the director may be given an opportunity to possibly make submissions upon the-

   HER HONOUR: You can make submissions the next time around when it’s time to lay the information, but as of today’s date, I’m going to give the accused the opportunity to withdraw his plea, but you will need to lay a fresh information in any event. Two weeks Mr Alessandrini.

   ADJOURNED 10:44 A.M TO TUESDAY, 17 MAY 2005 AT 10 A.M.[1]

   [1] Transcript, dated Monday 2 May 2005 at p 3 lines 2-25.

7. On 17 May 2005, the matter was listed before another District Court Judge who further adjourned the matter to allow this application for judicial review to be taken out before this Court.

8. At the hearing before me, counsel for the second defendant indicated that he did not oppose the orders being sought by the plaintiff, being the DPP. Counsel for the DPP contended first, that the District Court Judge was acting beyond power, in that the District Court does not have jurisdiction, pursuant to s 111 of the Summary Procedure Act, to permit the second defendant to change his pleas as a matter of right, upon being remanded for sentence pursuant to s 19(5) of the Criminal Law (Sentencing) Act. 

9. Second, it was contended that the second defendant was not entitled, as a matter of right, to change his pleas. It could only be withdrawn upon the exercise of judicial discretion after consideration of relevant principles.

10. Third, it was argued that there was a denial of procedural fairness by the Judge in refusing to hear the then counsel for the DPP in relation to the second defendant’s application to withdraw his pleas. It was argued that the denial of procedural fairness to allow the DPP to be heard was a jurisdictional error in its own right without specific evidence of prejudice or “practical effect”. A further alternative argument was that as a consequence of the denial of procedural fairness, the Judge fell into further jurisdictional error, in that there was no material or information before her Honour upon which she could exercise any discretion to permit the withdrawal of the pleas.

    As to the first argument, s 111 of the Summary Procedure Act provides as follows:

    111—Change of plea following committal for sentence

    (1)     A person who has been committed to a superior court for sentence may, on appearing before that court, withdraw the admission of guilt and plead not guilty to the charge.

    (2)     In such a case, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.

    (3)     The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.

11. As is apparent from the provisions of that section, this only applies when a person has been “committed” to the Supreme Court for sentence and not when a person has been “remanded” for sentence. To put the contention another way, a “remanding” for sentence pursuant to s 19(5) of the Criminal Law (Sentencing) Act is not “committed” for sentence pursuant to s 105 of the Summary Procedure Act. This same distinction was made in the case of Worthington Eyre v The District Court of South Australia[2].

    [2] (1997) 193 LSJS 198.

12. Therefore it is quite apparent that s 111 of the Summary Procedure Act does not empower a District Court judge to permit a withdrawal of the pleas as of right, as a consequence of a person being remanded to the District Court for sentence pursuant to s 19 of the Criminal Law (Sentencing) Act.

13. As to the second argument, the authorities appear to indicate that a withdrawal of a plea is an exercise of judicial discretion having regard to a number of principles.

14. In the case of The Queen v Clayton[3], the facts concerned an unrepresented accused charged with assault with intent to rape.  He pleaded guilty to the charge and was remanded for sentence.  Subsequently, counsel acting on his behalf sought leave to withdraw the plea of guilty and substituted with a plea of not guilty. 

    [3] (1984) 35 SASR 232 at 234.

15. Wells J, at p 234, adverted to the "onus of persuasion" and stated the following:

    There are several important decisions regulating the exercise by a trial Judge of his power to permit the withdrawal of a plea of guilty; it is unnecessary to cite or re-examine them. They deal with the onus of persuasion, and the matters relevant to the exercise of such a power…there is every reason why an informed and deliberate plea should be treated as final, and that after such entry of such a plea, the prisoner should face the necessity of persuading a trial judge that, in effect, a miscarriage of justice would result if he were bound by his plea. But that rule, I repeat, rests upon an informed and deliberate plea, and not on a plea based, possibly, on an amorphous and uncritical understanding.

16. A similar view was expressed by White J. in Attorney – General v Kitchen and Roberts[4] at p 55. White J agreed with the statement of principle of Wells J in the case of Clayton, and endorsed that a “burden of persuasion” rested upon a defendant before a defendant could be allowed to change a plea.  White J further added, at p 57, "a plea of guilty in open court after advice is a solemn acknowledgement of guilt."

    [4] (1989) 51 SASR 54 at 55.

17. Bollen J further stated in Attorney General v Kitchen and Roberts at p 62-3:

    It was, then, common ground before us that a judge of the Central District Criminal Court has power or jurisdiction or the discretion to allow a change of plea. No doubt it is a power, jurisdiction or discretion to be exercised in favour of a change of plea from “guilty” to “not guilty” with caution. A defendant cannot be allowed to change a plea of guilty entered in the presence of his counsel or solicitor just because he wants to change… "sufficient reason", if I may say so, is a much more accurate way of describing the way in which various courts have decided how to exercise this discretion in the past.

18. As to the process which may be followed in relation to an application to withdraw a plea, Legoe J, in the case of R v Roach[5] referred to those circumstances and indicated,

    … the trial judge must determine and isolate the relevant facts to be taken into account in deciding whether to exercise the discretion to allow the withdrawal of the plea of guilty.  This may involve the calling of evidence either by the applicant who has the general onus of establishing the relevant facts for the exercise of the discretion, or such other relevant witness as the applicant may call, for example, the legal representative or adviser at the relevant time.

    [5] (1990) 54 SASR 491 at 494.

19. These cases therefore indicate that there is an “onus of persuasion” cast upon the defendant and that either material and/or submissions are required in order that a court may satisfy itself that it is appropriate to exercise its discretion to grant such a withdrawal in the circumstances.

20. The third argument concerns a denial of procedural fairness in failing to permit the DPP to make any submissions in respect of the application by the second defendant to withdraw the pleas.

21. It is fundamental to procedural fairness that a person be given an opportunity to be heard.  This is clearly articulated in the case of Kioa v West[6] by Mason J at p 584 who described the common law duty to act fairly, in the sense of according procedural fairness.  This was articulated as including the obligation to "fairly listen to both sides".  This clearly was not accorded to the DPP by the Judge.  This denial of procedural fairness by itself, even without any further prejudice or practical effect to the DPP, would arguably be sufficient to warrant an order for certiorari.[7]

    [6] (1985) 159 CLR 550.

    [7] See Kioa v West (1985) 159 CLR 550 at 603-4; J v Lieschke (1987) 162 CLR 447 at 462 per Brennan J.

22. However, there is a further argument that there was a practical effect and prejudice, as well as a jurisdictional error, flowing from the failure to accord procedural fairness. The peremptory and inappropriate refusal of the Judge to entertain submissions sought to be made by the DPP resulted in there being no material before her Honour upon which she could exercise a discretion and that the essential preconditions for withdrawal of the pleas could not have been appropriately entertained. This proposition is articulated in the case of Craig v South Australia[8] where the High Court indicated:

    … Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.

    [8] (1994) 184 CLR 163 at 177.

23. Finally on this point, in the case of Eate v Police[9], White J at p 39 endorsed the proposition that a failure to provide the parties with an opportunity to make oral submissions constitutes, in certain circumstances, a denial of procedural fairness and there are authorities to which he adverts.

    [9] [2004] SASC 340.

    Conclusion

24. For the above reasons, I therefore consider that the decision made by the Judge to permit the withdrawal of the pleas, together with the direction given by the Judge that a fresh information be laid by the DPP, should be quashed.  I also consider that the matter should be remitted back to the District Court.

25. At the time at which the matter comes on for hearing before the District Court submissions may be made by either or both parties, as to whether the application by the second defendant to withdraw his pleas should in turn be remitted back to the Magistrates Court or whether it should remain in the District Court.

26. I therefore make the following orders:

    1an order in the nature of certiorari quashing the order made by the Judge on 2 May 2005 allowing the second defendant to change his pleas previously entered in the Magistrates Court of South Australia on 15 February 2005.

    2an order in the nature of certiorari quashing the direction made by the Judge on 2 May 2005, for the DPP to lay a fresh information in respect of the second defendant.

    3an order remitting the matter to the District Court to be dealt with in accordance with these reasons.