DURAND v Police - [2022] SASC 123

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
DURAND v POLICE
[2022] SASC 123
Judgment of the Honourable Auxiliary Justice Parker
1 November 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
MAGISTRATES - HEARING - PLEA - GUILTY PLEA - WHERE ACCUSED UNREPRESENTED
The appellant pleaded guilty to one count of aggravated assault and consented to the confirmation of an interim intervention order at first appearance at the Magistrates Court while unrepresented.
The appellant seeks an order that both the guilty plea and the consent to the confirmation of the interim intervention order be set aside. The appellant argues that she was not given an opportunity to obtain legal representation, that she was induced to enter a plea of guilty and to consent to the confirmation of the interim intervention order because of representations made by the prosecutor, that a miscarriage of justice occurred because the appellant, as an unrepresented defendant, did not receive proper assistance from the Magistrate, and that a miscarriage of justice occurred because the appellant disclosed a defence during submissions in mitigation of penalty which indicated that she did not understand the nature of the charge against her.
The respondent contends that the appellant did not produce any evidence that she was not given an opportunity to obtain legal advice or that her actions were induced by the representations of the prosecutor. Further, there was no reason for the Magistrate to believe that the appellant was not exercising her free choice or that she did not fully understand the proceedings. Finally, even if self-defence had been raised, taking into account the circumstances of the case, it was open and reasonable for the Magistrate to convict and sentence the appellant on the basis of her guilty plea.
Held:
1. The appeal against conviction on the charge of aggravated assault is dismissed.
2. The appeal against confirmation of the interim intervention order is dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 20(2), 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 7(1)(a), 8(1), 8(2), referred to.
Cooling v Steel (1971) 2 SASR 249; R v Forde [1923] 2 KB 400; Tsavalas v Police [2016] SASC 103; R v Pugh (2005) 158 A Crim R 302; R v Young [1982] Vic SC 482, (Court of Criminal Appeal of Victoria, Starke, Crockett and O’Bryan JJ, 2 December 1982); Meissner v The Queen (1995) 184 CLR 132; R v Stewart [2010] SASCFC 72; Bollen v Police [2022] SASC 82; R v Wilkes (2001) 122 A Crim R 310; R v Abusafiah (1991) 24 NSWLR 531; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; R v McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DURAND v Police [2022] SASC 123
Case: [2022] SASC 123
Decision Date: 1 November 2022

CaseChat Overview and Summary

In the case of Durand v Police, the appellant, represented pro se, appealed against her conviction for aggravated assault and the confirmation of an interim intervention order. The case was heard in the Supreme Court of South Australia. The appellant argued that there had been a miscarriage of justice in the Magistrates Court due to procedural errors and the alleged lack of full knowledge of the facts at the time she entered her guilty plea. The court was required to determine whether the Magistrates Court erred in confirming the interim intervention order and whether there had been a miscarriage of justice that warranted setting aside the guilty plea and ordering a new trial.

The court found that the Magistrate had not erred in confirming the interim intervention order, as there was no miscarriage of justice or other error. The court emphasised that the plea of guilty should be treated with finality and that appeals seeking to set aside a guilty plea should be approached with great care. The court held that the integrity of the plea of guilty is questioned only if there are circumstances indicating that the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if there is a real question about the guilt of the accused. In this case, the court found that there was no such evidence, and the appeal was dismissed on both the conviction and the confirmation of the interim intervention order.

The court concluded that there was no miscarriage of justice in the proceedings of the Magistrates Court and dismissed the appeal. The conviction for aggravated assault and the confirmation of the interim intervention order were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the context of the ongoing dispute between the appellant and her estranged husband concerning their financial affairs, her plea of guilty to aggravated assault (albeit without conviction or penalty), and the fact that the making of the intervention order was part of the agreed outcome between the appellant and the police, I do not consider that the Magistrate erred by confirming the interim intervention order. I find that there was no miscarriage of justice or other error.Conclusion I dismiss the appeal against conviction on the charge of aggravated assault. I also dismiss the appeal against confirmation of the interim intervention order.

Ratio Decidendi

Legal Principle Established

For these reasons, the respondent submits that in all the circumstances there has been no miscarriage of justice and the appeal should be dismissed. Consideration The affidavit of the police prosecutor also referred to matters that allegedly occurred subsequent to the two decisions that are under appeal. I can only have regard to the facts as they stood when the matter came before the Magistrate. The additional material was not relevant to the appeal and should not have been included in the affidavit. Doyle CJ stated in R v Stewart, with David and Peek JJ agreeing, that a court must approach appeals where an appellant seeks that a plea of guilty be set aside with great care.[16] His Honour also added that it is not in the public interest to allow such a plea to be set aside because of second thoughts or late regrets. The ultimate question is whether there has been a miscarriage of justice.[17] The earlier more formalistic approach applied in R v Forde[18] no longer prevails.[19] [16] [2010] SASCFC 72 at [44].[17] Ibid at [42].[18] [1923] 2 KB 400 at 403. [19] R v Stewart [2010] SASCFC 72 at [42]. In R v Stewart, Doyle CJ adopted with approval[20] a passage from the judgment of Wood CJ at CL in R v Wilkes[21] where his Honour had adopted observations made by Badgery-Parker J in an unreported decision. Badgery-Parker J had stated:The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts … and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea ‘was not really attributable to a genuine consciousness of guilt’: per Scholl J in Murphy. If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Justice Scholl ‘an issuable question of guilt’ – to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial. [20] Ibid at [45].[21] (2001) 122 A Crim R 310 at [16]. A passage from the judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen is also of direct relevance to this appeal.[22] In that case their Honours stated:A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. [22] (1995) 184 CLR 132 at 141.