LT v Police - [2024] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
LT v POLICE
[2024] SASC 105
Judgment of the Honourable Justice McDonald
20 August 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - CHILDREN - CRIMINAL CAPACITY
The appellant, a youth aged 13 years old, entered pleas of guilty to several counts of breaching bail on 4 January and 5 April 2023 in the Youth Court sitting at Port Augusta. On both occasions, the Magistrate declined to record convictions, instead issuing the appellant a $10 fine on 4 January 2023 along with the relevant levies and prosecution costs, and issuing no further penalty on 5 April 2023 taking into account time spent by the appellant in detention as at that date.
The appellant appeals the sentences imposed by the Magistrate on six grounds:
1.A miscarriage of justice was occasioned by the Magistrate failing to discharge the Court’s obligations pursuant to s 8 of the Youth Court Act 1993 (SA) and s 30(1) of the Young Offenders Act 1993 (SA) on 4 January 2023;
2.A miscarriage of justice was occasioned by the Magistrate failing to discharge the Court’s obligation pursuant to s 8 of the Youth Court Act 1993 and s 30(1) of the Young Offenders Act 1993 on any hearing date including but not limited to 5 April 2023 in relation to four breaching bail charges to which the appellant was sentenced on 5 April 2023;
3.The interests of justice require that the plea entered on 4 January 2023 to one count of breaching bail be set aside;
4.The Magistrate erred in imposing a sentence on 4 January 2023 which was manifestly excessive;
5.The interests of justice require that the pleas entered on 5 April 2023, to four counts of breaching bail, be set aside, and;

6. The Magistrate erred in imposing a sentence on 5 April 2023 which was manifestly excessive.
The appellant’s contentions are founded in a complaint that the Magistrate failed to have appropriate regard to the appellant’s age, the doctrine of doli incapax, and the obligations of the Court arising from s 8 of the Youth Court Act 1993 (SA) and s 30(1) of the Young Offenders Act1993 (SA).
The respondent conceded grounds 1, 3, and 4 of the appeal as relating to the hearing of 4 January 2023, however maintained its opposition to grounds 2, 5 and 6, which related to the hearing of 4 April 2023.
Held, allowing the appeal in respect of grounds 1, 3 and 4 and dismissing grounds 2, 5 and 6.
1.The respondent’s concession of grounds 1, 3 and 4 is an appropriate one. There is nothing in the transcript of the hearing of 4 January 2023 that suggests that the appellant had received legal advice, understood the nature of the proceedings and the charges against him, or that the Magistrate was satisfied that the presumption of doli incapax had been displaced.
2.The circumstances of the 5 April 2023 hearing are much different. A review of the transcript of this hearing, and the hearings which preceded it, do not suggest that the appellant’s pleas of guilty were occasioned by confusion, inducement, or equivocality. By this date, it is clear that the appellant had received legal advice and understood the nature of the charges against him. Further, the sentence imposed on this date was not manifestly excessive.

Youth Court Act 1993 (SA) S 8; Young Offenders Act 1993 (SA) SS 3(1), 5, 30(1); Sentencing Act 2017 (SA) S 23(2)(c), referred to.
BDO v The Queen (2023) 301 A Crim R 447; Campbell v The Queen [2018] NSWCCA 87; Green v Police (SA) (1999) 29 MVR 554; Groom v Police (No 2) (2013) 115 SASR 446; Maxwell v The Queen (1995) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132; O'Toole v Arnold (1982) 61 FLR 372; P v Police [2003] SASC 198; R v Barnes (1971) 55 Crim App R 100; R v HJS (2020) 137 SASR 280; R v Hura (2001) 121 A Crim R 472; R v Inns (1974) 60 Crim App R 231; R v M (1977) 16 SASR 589; R v Stewart [2010] SASCFC 72; R v W [2010] QChC 2; RP v The Queen (2016) 259 CLR 641; Tsavalas v Police (2016) 76 MVR 298, considered.

LT v POLICE
[2024] SASC 105
Appeal to a single Judge
McDONALD J.

This is an appeal against the decision of a Magistrate to accept the guilty pleas of a youth (‘the appellant’) on 4 January 2023 and 5 April 2023, and against the sentences imposed on those occasions. The grounds of appeal are:
1.A miscarriage of justice was occasioned by the Magistrate failing to discharge the Court’s obligations pursuant to s 8 of the Youth Court Act 1993 (SA) (‘the YCA’) and s 30(1) of the Young Offenders Act 1993 (SA) (‘the YOA’) on 4 January 2023.
2.A miscarriage of justice was occasioned by the Magistrate failing to discharge the Court’s obligations pursuant to s 8 of the YCA and s 30(1) of the YOA on any hearing date including but not limited to 5 April 2023, in relation to four breaching bail charges for which the appellant was sentenced on 5 April 2023.
3.The interests of justice require that the plea entered on 4 January 2023, to one count of breaching bail be set aside.
4.The Magistrate erred in imposing a sentence on 4 January 2023 which was manifestly excessive.
5.The interests of justice require that the pleas entered on 5 April 2023 to four counts of breaching bail be set aside.
6.The Magistrate erred in imposing a sentence on 5 April 2023 which was manifestly excessive.
Although there are six grounds of appeal, they are all founded in a complaint that the Magistrate failed to have proper regard to the appellant’s age, the doctrine of doli incapax and the obligations that arose under s 8 of the YCA and s 30 of the YOA.
A preliminary issue – the appellant’s age
At the time of the proceedings before the Magistrate, the appellant’s date of birth was unknown. It was variously stated to be 28 December 2009, 28 December 2010 and 28 December 2011.
Subsequent to those proceedings, the respondent was able to obtain a Northern Territory birth certificate issued in the name of the appellant. There is now no dispute that the appellant’s date of birth is 28 December 2009, and that he was 13 years old at the time of the relevant hearings. This is consistent with the age that his solicitor said he was during submissions before the Magistrate.
The charges
The appellant was charged with breaching bail on 28 October 2022. The allegation was that he had associated with another nominated youth, which was in contravention of one of the conditions of a bail agreement that he was subject to. The matter came before the Magistrate on 4 January 2023, at which time a plea of guilty was taken through the appellant’s solicitor. No conviction was recorded and the appellant was fined $10. A victim’s of crime levy of $100 along with costs of $150 was also ordered.
On 5 April 2023, the youth appeared before the same Magistrate. On this occasion he was charged with having breached his bail conditions on 1 February 2023, 9 February 2023 (2 counts) and 13 February 2023. Each of the breaches involved the appellant failing to adhere to a curfew and/or being present in the CBD of Port Augusta, which was contrary to his bail conditions. Pleas of guilty were taken through the appellant’s solicitor. It would appear that, by this time, the appellant had spent some time in custody in relation to these charges. Having regard to the time in custody, the Magistrate dismissed the charges utilising s 23(2)(c) of the Sentencing Act 2017 (SA).[1]
[1] The Magistrate did not refer to s 23(2)(c). He used the words “without conviction no further penalty, time served”. It is inferred from that that s 23(2)(c) was the power that was utilised.
Statutory regime
The YCA and the YOA together provide the statutory framework for the disposition of criminal matters involving children in South Australia. Within this framework there is an emphasis on rehabilitating a youth into a “useful member of the community” and on the youth securing “proper realisation of their potential”.[2] Of note, s 3(2)(a) of the YOA expressly recognises that “a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law”, no doubt as part of the process of rehabilitation. The statutory regime places a particular emphasis on the need to ensure that a youth has an understanding of the process that they are engaged in.
[2] Young Offenders Act 1993 (SA) s 3(1).
Section 8 of the YCA imposes an obligation on the Court to ensure that “as far as practicable, that parties to proceedings before the Court understand the nature and the purpose of those proceedings”. It should be noted that this obligation applies across the Youth Court jurisdictions and may arise in a variety of different types of proceedings; for example, in adoption or in guardianship proceedings relating to a child said to be at risk.
Section 8 of the YCA would appear to operate in all circumstances when a youth is before the Youth Court, and applies irrespective of the involvement of a solicitor or counsel. That is not to say that what might be required of a judicial officer would necessarily be the same irrespective of whether the youth is represented, and the obligation may be more readily satisfied in circumstances in which the youth has a lawyer.
Section 30 of the YOA imposes a similar but more comprehensive obligation. It hones the general duty to the specific circumstances of a youth facing criminal proceedings. It reads:
30—Court to explain proceedings etc
(1)A court before which criminal proceedings are brought against a youth must satisfy itself that the youth understands the nature of those proceedings.
(2)If the youth is not represented by counsel or solicitor, the court—
(a) must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and
(b) must provide the youth with a written statement in the prescribed form of the youth’s rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance.
(3)If a youth is sentenced to a fine or ordered to make any other payment of money, the court must give the youth a notice stating in simple language the amount the youth must pay and the time and place at which payment is to be, or may be, made.
(4)Non-compliance with this section does not invalidate a judgment or order of the court.
Section 30 of the YOA expressly provides for a differential approach depending on whether or not the youth is represented.
The obligations created by these sections are clearly directed towards a youth being provided with a proper understanding of their position before the Court, the options open to them, and an ability to meaningfully engage in the court processes.
Doli incapax
The appellant was a youth to whom the doctrine of doli incapax had application. Doli incapax is a doctrine concerning the legal capacity of a child to commit a criminal offence.
As the appellant was aged 13 at the time of his offending, he was entitled to the benefit of the doctrine of doli incapax in the proceedings that are the subject of this appeal.
In South Australia, no child under the age of 10 years can commit an offence.[3] For children aged 10 to 13 years, the common law doctrine of doli incapax, as modified by statute, operates as a presumption that the child lacks capacity to form the mens rea and cannot therefore commit an offence.[4] This presumption can be rebutted by the prosecution calling evidence to prove beyond reasonable doubt that the child, at the time of engaging in the relevant conduct, knew that the conduct was seriously wrong as a matter of morality, or according to the ordinary principles of reasonable people (not merely that the conduct was naughty or mischievous).[5]
[3]     Young Offenders Act 1993 (SA) s 5.
[4]     R v M (1977) 16 SASR 589 at 590.
[5]     RP v The Queen (2016) 259 CLR 641 at [9].
Regardless of how obviously wrong the act or acts constituting the conduct may be, the presumption cannot be rebutted merely as an inference arising from carrying out that act or those acts.[6] Equally, proof that a child is of “normal” mental capacity for their age will be of itself insufficient to prove their capacity to know or understand that conduct is morally wrong by the standard of reasonable adults.[7]
[6] Ibid.
[7] BDO v The Queen (2023) 301 A Crim R 447 at [23].
The rationale underpinning the presumption is that it is presumed that a child under the age of 14 is not sufficiently intellectually or morally developed to appreciate the difference between right and wrong, and consequently lacks the capacity for criminal responsibility.[8]
[8] RP v The Queen (2016) 259 CLR 641 at [8].
It is clear that had the appellant pleaded not guilty to the charges that he faced, it would have been necessary for the prosecution to lead evidence capable of displacing the presumption in order to prove the offences.
Circumstances in which an appeal against conviction will be allowed following a plea of guilty
A guilty plea is an admission to all of the essential elements of the charge.[9] The 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 the exercise of free choice in the interests of the person entering a plea.[10] A plea of guilty must be unequivocal and made in circumstances suggesting that it is a true admission of guilt.[11]
[9] Tsavalas v Police (2016) 76 MVR 298 at [13] citing Meissner v The Queen (1995) 184 CLR 132; Groom v Police (No 2) (2013) 115 SASR 446; Green v Police (SA) (1999) 29 MVR 554 at [26]; R v Stewart [2010] SASCFC 72 at [45] (Doyle CJ, David and Peek JJ agreeing).
[10] Meissner v The Queen (1995) 184 CLR 132 at 141 (Brennan, Toohey and McHugh JJ).
[11] Maxwell v The Queen (1995) 184 CLR 501 at 511.
An appellate court will only intervene where it is satisfied that a miscarriage of justice has occurred. Whilst the existence of a miscarriage of justice is the ultimate test, there are a number of circumstances that may be relevant.
The circumstances in which a court may set aside a conviction after a guilty plea may include:[12]
a)where the defendant pleads guilty without appreciating the nature of the charges and facts alleged against them and not intending to admit guilt; or where there was a material mistake that affected the integrity of the plea as an admission of guilt.
b)where the admitted facts did not amount to proof of the offence alleged.
c)where the plea was not an exercise of the free choice of the defendant because of undue pressure, threat or inducement.
d)where the plea was based on an imprudent or inappropriate advice.
[12] Tsavalas v Police (2016) 76 MVR 298 at [15]; R v Hura (2001) 121 A Crim R 472 at 478.
A further relevant consideration is whether, on the material before the Court, there is a real question about the guilt of the defendant.[13]
[13] Tsavalas v Police (2016) 76 MVR 298 at [15].
The Courts will approach appeals to set aside a plea or pleas of guilty “with caution, bordering on circumspection”.[14] It is well established that there is a high public interest in the finality of legal proceedings, resulting in the Courts being cautious to set aside a guilty plea on appeal.
[14] Groom v Police (No 2) (2013) 115 SASR 446 at [5]; R v Liberti (1991) 55 A Crim R 120 at 122.
As a matter of logic, the further progressed the matter the more reluctant the Court should be to interfere with a plea. It is one thing to apply to vacate a plea the day after it was made, perhaps in haste or in the heat of the moment. It is another to attempt to vacate a plea at a point in time after which the defendant has been sentenced and has filed an appeal. As Doyle J explained R v HJS:[15]
… considering whether it is appropriate to exercise the Court’s discretion at first instance to permit a defendant to withdraw or change his plea, much may depend upon the timing of the application. While any application to withdraw or change an apparently informed and deliberate plea of guilty should be approached with some caution, the public interest in the finality of litigation is less of a concern when the Court has not yet acted upon the plea in any significant way. …
(Footnotes omitted)
[15] (2020) 137 SASR 280 at [78].
The Court nevertheless has power to permit a defendant to withdraw his or her plea of guilty, both prior to a conviction being entered and upon an appeal against conviction. The test on an appeal against conviction is whether the circumstances in which the plea was entered involved a miscarriage of justice.[16] The appellant bears the onus of establishing such a miscarriage.
[16] Meissner v The Queen (1995) 184 CLR 132 at 141-142 (Brennan, Toohey and McHugh JJ), at 157 (Dawson J).
In the case of a guilty plea entered by a person who would have the benefit of the presumption of doli incapax in a contested matter, a guilty plea also represents an admission that the defendant knew that the offending pleaded to was seriously wrong in the relevant sense.[17]
[17] Campbell v The Queen [2018] NSWCCA 87 at [21]-[23].
It is relevant, however, that the formulation of Brennan, Toohey and McHugh JJ in Meissner v The Queen refers to circumstances in which a defendant who has entered a plea “is of full age”. [18] In R v W,[19] Newton DCJ of the Childrens Court of Queensland, reflected on the inclusion of those words in the High Court’s test and observed that he was aware of no authority that dealt with the issue “of whether a different approach was justified in relation to a child who has legal capacity to decide how to plead to a criminal offence, but is still regarded with some tenderness by relevant legislation”.[20]
[18] (1995) 184 CLR 132 at 141.
[19] [2010] QChC 2.
[20] Ibid at [32].
Newton DCJ however suggested that the appropriate approach would be that, in the case of a child, the caution or circumspection that is normally applied in determining whether to permit the withdrawal of a plea “should not be applied with full vigour”,[21] and thereby give effect, in a generalised way to a defendant’s youth.
[21] Ibid at [34].
I respectfully agree with such an approach.
4 January 2023
The hearing of 4 January 2023 was the first mention of the charge and took place between 11.01am and 11.07am (a period of about six minutes). It commenced with the appellant’s solicitor indicating that she did not have the relevant paperwork. She explained the position to the Magistrate:[22]
I believe this is a breach of bail matter. We don’t have paperwork; however, I believe it is making contact with [JA]. I believe that will be a guilty plea. If I could just quickly double check. Thank you, your Honour, that will be a guilty plea.
[22] 4 January 2023 T2.
The plea was then taken through the solicitor.
In his written submissions, counsel for the appellant succinctly summarised the deficiencies in the manner in which the proceedings unfolded:[23]
At this stage, it can be observed, that the time taken to obtain instructions, clearly under time and resource pressure, were unlikely to be sufficient to explain the concept of doli incapax and explain the precise nature of the allegations against the appellant to him. As this occurred within the court, this could not have been anything other than starkly obvious to the Magistrate. It should be noted that at no time before the plea was taken through counsel, was any effort made on the part of the Magistrate to explain to the youth, consistent with the obligation imposed by s 8 of the YCA, the nature and purpose of the proceedings. The circumstances in which the plea was entered could not, sensibly, be suggested to allow for any satisfaction, on the part of the Magistrate, which could be said to rise to the level required by s 30(1) of the YOA. …
[23] FDN 21, Written Submissions of Appellant at [34].

Given the lawyer did not have “the paperwork” (likely the Information and factual allegations) it is difficult to conclude that the appellant knew and understood the facts alleged against him.
The Magistrate then indicated that he had read the youth’s antecedent record and the facts of charge and asked the youth to come forward. There was then an exchange between the Magistrate and youth which I set out in full:[24]
[24] 4 January 2023 T2-3.
HIS HONOUR:    Okay. [LT], can you just come forward. You know the bail agreement that you were put on, it says that you can’t do certain things. Do you agree? Do you understand that? And you were found with [JA], yeah, and you knew you weren’t supposed to be with him. Were you under a bit of pressure to be with him? Is that the gang, or what? Yeah? Can you - you have a tongue in your head? Can you talk? Say yes?
YOUTH:Yes.
HIS HONOUR:    Yes, okay. Now, the court expects you to comply with the conditions of bail, otherwise you get put in detention. Do you understand that? Do you know what detention is? Gaol, okay. You go to gaol. The only reason that you’re given bail is to avoid being held pending the outcome of proceedings. And so you agreed to do the things or not to do the things that are set out in the bail agreement.
So if you are found to not be complying with your bail, the police will arrest you, take you to the police station, get your mum involved, get the courts involved, all this unnecessary effort. You don’t want to be put through that, do you? No. So let’s just bring all this to an end. On this occasion it’ll simply be a without conviction and a fine of $10, okay. So in future all you’ve got to do is comply with your bail, and nobody will bother you. Okay. Do you understand that? Can you say yes?
YOUTH:Yes.
HIS HONOUR:    Yes, okay. Thank you.
Rather than demonstrating that the youth had a proper understanding of his position, this exchange suggests the opposite. On two occasions the appellant had to be prompted to acknowledge what was being said to him. Within those exchanges the youth was encouraged to agree with what was being put to him. The appellant’s responses were so minimal that he was effectively unresponsive.
Immediately after this exchange, and without giving the appellant’s solicitor the opportunity of making any submissions, the Magistrate dealt with the matter without conviction and with a $10 fine.
Concession by the respondent
In light of what transpired on 4 January 2023, the respondent acknowledges and concedes that in all of the circumstances, there is a risk of a miscarriage of justice. It is a concession well-made and I agree with the respondent’s assessment. The appellant was very young, both at the time of the commission of the offence, and at the time of the hearing. There is nothing in the transcript to suggest that the appellant received any legal advice. In fact, it would appear to the contrary. There was no meaningful engagement between the Magistrate and the appellant from which the Magistrate could have been satisfied that he understood the proceedings. Finally, given that there were no submissions on penalty, it cannot be said that the Magistrate was satisfied on the basis of anything that the solicitor said, of the youth’s understanding of the charge or the proceedings that were taking place.
It is clear to me that, not only did the Magistrate fail to discharge his obligations in accordance with s 8 of the YCA and s 30(1) of the YOA, but there was no basis on which he could be satisfied that the youth knew that the conduct was seriously wrong as a matter of morality or according to the ordinary principles of reasonable people.[25]
[25] RP v The Queen (2016) 259 CLR 641 at [11]-[12].
In P v Police, Gray J made the following apposite observation: [26]
It is important for the court to be patient when dealing with young offenders. If a defendant is without legal representation, the court needs to ensure that they understand the sentencing powers available to the magistrate and the possible outcome of the sentencing process. Expediency in handling a busy list cannot justify any departure from the statutory requirements. These requirements represent the minimum standards that must be observed.
[26] [2003] SASC 198 at [23].
Whilst the appellant was represented on this occasion, the circumstances were such that the Magistrate could have no confidence that the appellant understood the nature of the process that he was engaged in.
It is not in the interests of justice to allow the plea to stand.
Events leading up to 5 April 2023
The events leading up to and occurring on 5 April 2023 are not so straightforward, and the issues are more nuanced.
The youth first appeared before the same Magistrate in relation to one of the breach bail charges on 8 March 2023. Nothing of any moment occurred on that occasion other than the solicitor appearing for the appellant (the same solicitor who appeared on 4 January 2023) advised the Magistrate that the youth was not her client and the solicitor who usually acted for him had arranged to have his other outstanding charges listed together on 22 March 2023. She indicated that it was anticipated that most of the youth’s remaining charges would resolve on that day.
In addressing the appellant’s solicitor, the Magistrate summarised the proposal for advancing the matter and said “So, all matters are now listed on 22 March and it’s expected that most of them will resolve on that date”[27] (emphasis added).
[27] 8 March 2023 T2.
The Magistrate then addressed the appellant’s mother and said:[28]
Thank you for coming and supporting [the appellant]. It’s important that the family comes together on these occasions, so thank you for coming. … And on the next occasion, 22 March, we will try and wrap them up, okay?
[28] Ibid.
On that basis, the matter before the Court was listed along with the other files on 22 March 2023.
On 22 March 2023, the youth appeared represented by his usual solicitor. In addition to the breaches of bail, there were outstanding charges of unlawful possession and possessing an article in suspicious circumstances.
At the outset of the hearing, the appellant’s solicitor advised the Magistrate that the appellant was 13 years of age “and perhaps younger at the date of some of these offences. As such, we are raising doli”. The following exchange then took place:[29]
[29] 22 March 2023 T2-3.
HIS HONOUR:    Is he disputing the breaches of bail on the basis of doli?
MS JOHNSTON-BORRETT:   Yes, your Honour, at this stage.
HIS HONOUR:    Right. Well, good luck.
MS JOHNSTON-BORRETT:   Thank you, your Honour. We will be seeking a slightly longer than normal adjournment to allow time for my office to obtain his certificate of birth. It appears that prosecution, Youth Justice and my office all have different dates of birth, and we would be hoping to get some documentation to put the correct date of birth on record.
HIS HONOUR:    All right, well, all of this stems from, let’s have a look, February, that’s three of the files are February. So, the only two that aren’t breaches of bail are unlawful possession and possess article to commit offence. What is the unlawfully in possession of, allegedly?
APP TAYLOR:    A mountain bike.
HIS HONOUR:    A mountain bike, and the article that he’s possessing in suspicious circumstances?
APP TAYLOR:    A torch.
HIS HONOUR:    And this is all in the middle of the night, is it?
APP TAYLOR:    Yes, this is at night, yes.
HIS HONOUR:    In breach of a curfew, no doubt. Well, all I can do is express the court’s view that these matters should be dealt with expeditiously, rather than perhaps purely in accordance with legal doctrine, and it may well be that it’s in the interests of the young man for them to be resolved by simply admitting the elements and having it referred to family conference. Otherwise, he and his mother will be coming back where whilst we argue esoteric points of law.
At the end of the hearing the Magistrate came back to the topic of doli incapax and said:[30]
HIS HONOUR: All right, 5 April, 9.30. Doli has been raised, but the court has indicated a wish that the matters be resolved by family conference, if possible.
[30] 22 March 2023 T4.
The appropriateness of the approach adopted by the Magistrate
Regardless of the disposition of this appeal, there are some observations to be made about the approach that the Magistrate took in relation to the appellant’s solicitor raising the issue of doli incapax.
In O’Toole v Arnold,[31] Muirhead ACJ was required to consider whether the common law requirement for proof that a child under 14 has sufficient capacity to know that what he was doing was wrong applied in the Northern Territory. The matter involved a 14-year old boy who had been convicted by a Magistrate of unlawful possession of a bicycle. During the course of the trial counsel for the youth raised the issue of what was effectively doli incapax. After he convicted the youth, the Magistrate made some further observations:[32]
I will say it because it concerns me with the Children’s Court, and I might be wrong, and no doubt one day the Supreme Court will tell me whether I am right or wrong, but the function of the Children’s Court is to do the best for the child. I would have thought that technical defences in Children’s Court are not doing the best for the child. When they sit in the back of the court, they hear what is being said and some of them must get the idea that they can beat the system, all well and good. But I must say it troubles me. Just from my experience I just wonder whether it is in the best interests to have technical matters.
[31] (1982) 61 FLR 372.
[32] Ibid at 374.
There are clearly some parallels between these observations and the views expressed by the Magistrate who presided over the appellant’s proceedings.
In O’Toole, Muirhead ACJ addressed the comments made by the Magistrate. His Honour said:[33]
I can only stress that the magistrate was required by law to be satisfied beyond reasonable doubt that the child’s knowledge or understanding of the wrongfulness of the possession had been proved. There was nothing technical about it. It was an essential ingredient.
I can understand the magistrate’s concern, sitting in that jurisdiction, to ensure that children in trouble are assisted, that worrying trends are corrected and that legalism is kept to a minimum. The modern approach to juvenile courts fosters this approach, but the right of a child to expect the same strict degree of proof and the same careful weighing of law and evidence before conviction must, of course, be recognized and guarded.
[33] Ibid.
In the appellant’s case, there was a proper basis for the appellant’s solicitor to raise the issue of doli incapax. The appellant was only 13 years old. It must be assumed that the solicitor raised it on the basis that she was of the view that it was, at least potentially, a live issue. Having been met with that response from the Magistrate, the solicitor was left in an invidious position. To push ahead and agitate the issue to the obvious displeasure of the Magistrate, or to fall into line and adopt the more pragmatic approach than the Magistrate appeared to be agitating for. The difficulty with the situation that presented to the solicitor was no doubt compounded by the fact that the hearing was taking place in a regional court, with a resident Magistrate, before whom the solicitor would be required to regularly appear.
It was the appellant’s submission that it will never be known how much the Magistrate’s response impacted, even at a subconscious level, on the position taken and advice given, by the solicitor which resulted in the applicant entering pleas of guilty on the next occasion the matter came before the Court.
5 April 2023
The matter next came before the same Magistrate on 5 April 2023. The appellant was represented by the same solicitor who appeared before him on 22 May 2023. At the outset of proceedings, the solicitor advised the Magistrate that there were five files before the Court; three of which had been resolved with the remaining two partly resolved. In the context of dealing with the breach bail charges, the Magistrate asked about the nature of the breaches. The solicitor responded:[34]
They’re curfew and CBD breaches, your Honour. Some of them are half an hour after curfew and Mr Taylor is making his way home. Then others are that he is out late at night with friends in places he, perhaps, should not be. He understands the importance of the CBD condition. It appears that there may have been some confusion initially, but Mr Taylor is well aware of those conditions now and understands that he should not have been in the CBD at the time.
[34] 5 April 2023 T3.
The appellant’s solicitor then advised the Magistrate that the appellant was only 13 or perhaps 12 for some of the offending, but that he had chosen to deal with the outstanding charges so he could go back to school without anything pending in Court.
At the suggestion of the appellant’s solicitor, the Magistrate dealt with the breach of bail charges without conviction and with no further penalty on the basis of time that he had already served in custody.
Does the entry and the acceptance by the Magistrate of the guilty pleas amount to a miscarriage of justice?
Failure to waive privilege
There is a fundamental difficulty for the appellant in succeeding in this appeal, in that he has not waived privilege so as to allow this Court to assess the adequacy of the advice that he received, or to know whether his solicitor acted in accordance with his instructions. Nor has he adduced evidence that would permit this Court insight into his understanding of the legal proceedings that he participated in. For reasons that will become apparent, that is particularly problematic in circumstances in which there appears to have been no time constraints imposed on the appellant in making the decision about whether or not to plead guilty.
It follows that in order to establish that a miscarriage of justice has occurred, the appellant is reliant on the events that occurred in Court, for which there is a transcript.
4 January 2023 and 8 March 2023 hearings
It was the appellant’s submission that the events that transpired on 22 March and 5 April 2023 did not occur in a vacuum, but against a backdrop of what had occurred on 4 January and 8 March 2023. During the appellant’s encounter with the Magistrate on 4 January 2023, the Magistrate had not effectively engaged with the appellant however, importantly, had raised the issue of a sentence of detention in saying “Now, the court expects you to comply with the conditions of bail, otherwise you get put in detention. Do you understand that? Do you know what detention is? Gaol, okay. You go to gaol”.[35] It was submitted that this exhortation would have had a particularly significant impact on a young indigenous man.
[35] 4 January 2023 T2.
Had the impugned guilty pleas occurred immediately after such an exchange, there would be considerable force in the appellant’s argument. However, there were a number of months and other court appearances between the two occasions. During the intervening period, the appellant had access to a solicitor and was legally represented at each court appearance. In those circumstances and absent any evidence from the appellant, there is a limit as to how much weight can be placed on what occurred on 4 January 2023, when considering the events of 5 April 2023. I accept, however, that it is part of the factual matrix that should be taken into account.
As I have mentioned, the hearing on 8 March 2023 was brief. The appellant, however, relies upon the exchanges between the Magistrate and the appellant’s solicitor and his mother, to make the submission that the appellant would have gained the impression that the Magistrate had an expectation or desire to see the matters resolved, and that in turn is likely to have impacted on the decision of the appellant to enter guilty pleas.
Even putting to one side the temporal disconnection between the relevant hearings, that is not an interpretation that is open on the evidence. It was the appellant’s solicitor who raised the issue of the matters resolving. It was the appellant’s solicitor who made the suggestion of listing all of the matters on the one occasion. The Magistrate did no more than summarise the plan that had been advanced and, in the context of thanking the appellant’s mother for attending court, explained to her what the proposal was.
There is nothing that occurred on 8 March 2023 that could be said to have negatively impacted on the events of 5 April 2023.
22 March 2023 hearing
It was the appellant’s submission that the events of 5 April 2023 also needed to be considered against the backdrop of what occurred on 22 March 2023. It was submitted that whilst it was doubtful that the appellant understood exactly what the exchange between his solicitor and the Magistrate meant, it is difficult to imagine that the deprecation of his proposed defence would have left him and/or his solicitor unaffected. At the very least, it was obvious that the Magistrate meant to encourage the appellant to plead guilty, and was dismissive of the attempt by his solicitor to raise doli incapax.
The comments of a judicial officer can be productive of a miscarriage of justice if they have the effect of applying pressure to an accused, either directly or through his legal representatives, to plead guilty.[36] It was submitted that the situation here was all the more acute because the Magistrate was the resident Magistrate in Port Augusta and as such he was, in reality, the only available avenue to try the case. It was further submitted that in that context, it is hardly surprising that the appellant entered guilty pleas to the breach of bail counts when the matter was next listed in front of the same Magistrate.
[36] R v Inns (1974) 60 Cr App R 231 at 233; R v Barnes (1971) 55 Cr App R 100 at 106.
In Groom v Police (No 2),[37] Sulan J allowed an appeal against conviction in circumstances in which he found that the pleas had not been entered in an exercise of the defendant’s genuine free choice. The circumstances in that case were, however, very different.
[37] (2013) 115 SASR 446.
In Groom, the appellant was remanded in custody. When Mr Groom appeared in court, the Magistrate indicated that the appellant had three options: first, to be further remanded in custody; secondly, to remain in custody while a home detention report was prepared; or thirdly, if he could see his way clear, (and it was a matter for him) to plead guilty to the charges. The Magistrate indicated that upon Mr Groom pleading guilty, he would regard the time that he had spent in custody as a sufficient penalty and not impose a further penalty. Unsurprisingly, Mr Groom entered pleas of guilty and was immediately released.
In considering whether the entry of those pleas amounted to a miscarriage of justice, Sulan J observed:[38]
… the circumstances of each case must be considered in determining whether a miscarriage of justice has occurred. In considering the circumstances of each case, a court will have regard to a number of considerations, including whether the plea was a genuine choice of the defendant, whether the plea is attributable to a consciousness of guilt, and whether there exists persuasive evidence of the defendant’s guilt. The fact that a trial judge has made an indication in open court as to potential sentences upon a guilty plea will not be sufficient, of itself, to establish a miscarriage of justice.
[38] Ibid at 450 [14].
Sulan J however found that the Magistrate had effectively given Mr Groom two options: he could remain in custody or he could plead guilty and be released. Mr Groom was unrepresented and at the time that the options were given to him, he had been in custody on the charges for almost three weeks. In those circumstances, Sulan J found that a miscarriage of justice had occurred.

In this case, whilst the Magistrate’s remarks were unfortunate, they did not fall into the same category as those made by the Magistrate in Groom. A further important difference is that the appellant was not required to enter his pleas on the same day that the comments were made, but sometime later, with the benefit of legal advice in the intervening period. Accordingly, whilst the remarks made on 22 March 2023 are a relevant factor to take into account, it cannot be said that they amount to a judicial inducement of the type that may result in a miscarriage of justice.
The aspects of the hearing of 5 April 2023 relied upon by the appellant
There is no evidence about what legal advice the appellant was given prior to 5 April 2023. What is apparent, is that the appellant’s solicitor was alive to the issue of doli incapax and had turned her mind to it. This Court should act on the assumption that the solicitor was cognisant of her duty to her client and the Court, unless there is evidence to the contrary. On that basis, it should be assumed that the solicitor gave her client advice within the range of advice that was appropriate in the circumstances.
It was the appellant’s submission that an examination of the transcript of 5 April 2023 reveals that the pleas were anything but unequivocal. Two particular passages of the transcript were relied upon.
The first occurred during the appellant’s solicitor’s submissions on penalty, when she put to the Court “[i]t appears that there may have been some confusion initially, but [the appellant] is well aware of those conditions now and understands that he should not have been in the CBD at the time”.[39]
[39] 5 April 2023 T3.
The appellant submitted that whilst it is not clear what the lack of understanding or confusion related to, it was significant that it was present and brought to the attention of the Magistrate. Counsel for the appellant suggested:[40]
If that lack of understand arose either wholly, or in part, because of his age, then this (in combination with other factors) presented a compelling reason why this issue of doli incapax needed to be properly considered through, if necessary, a contested hearing. It was clearly a live issue. This, of itself, is sufficient to render the pleas equivocal.
[40] FDN 21, Written Submissions of Appellant at [55].
I do not accept that submission, as there was no suggestion that the confusion related to the appellant’s age or the appellant’s decision to enter pleas of guilty.
It is necessary to consider the broader context in which the solicitor made the submission that contained the passage relied upon by the appellant. The submission was made as the Magistrate was attempting to ascertain the nature of each of the breach of bail allegations. The Magistrate asked the appellant’s solicitor whether they were all breaches of a curfew, and the solicitor responded:[41]
They’re curfew and CBD breaches, your Honour. Some of them are half an hour after curfew and [the appellant] is making his way home. Then others are that he is out late at night with some friends in places he, perhaps, should not be. He understands the importance of the CBD condition. It appears that there may have been some confusion initially, but [the appellant] is well aware of those conditions now and understands that he should not have been in the CBD at the time.
[41] 5 April 2023 T3.
There was then an exchange between the Magistrate and the solicitor about the appellant’s age.
As is apparent from the entirety of the answer, and the question that it responded to, the confusion that was the subject of the submission was the appellant’s previous confusion about the meaning of his bail conditions, and in particular, the prohibition on entering the CBD of Port Augusta. It was being put to the Court that whatever the situation had previously been, the appellant now fully understood the conditions. There was nothing about that submission that related to doli incapax. This passage does not support any conclusion that either the pleas should have been treated as equivocal by the Magistrate or that this Court should now treat them as anything other than a full admission of guilt.
The second passage relied upon by the appellant occurred during the appellant’s solicitor’s submission as to why the matters were finalising. The solicitor told the Magistrate:[42]
He is quite young, and he’s chosen to deal with these matters today, so that he can go back to school and not have anything pending with the court as much as reasonably possible.
[42] 5 April 2023 T3.
Counsel for the appellant described this submission as “troubling”, on the basis that the charges were not finalising as a product of a clear and unqualified acceptance of his guilt of the offence (or that doli incapax did not apply), but rather so that the appellant could reduce the number of files before the court, and go back to school.
The fact that the appellant’s choice to plead guilty was motivated at least in part by a desire to avoid further disruption to his education, which might encompass some degree of expediency, does nothing to suggest that the pleas were not deliberately and freely made.
As Dawson J observed in Meissner:[43]
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.
[43] Meissner v The Queen (1995) 184 CLR 132 at 157.
Even allowing for some relaxation of approach to factor in the appellant’s status as a youth, the fact that the appellant prioritised the need to put these matters behind him to get back to school, in no way suggests that the pleas were in some way equivocal.
Counsel for the appellant submitted that the fact that there were some matters still before the Court, that were to be contested, meant that the appellant would still be required to attend court. It was suggested that this exposed a flaw in the reasoning of the appellant, that the Magistrate was required to explore. It was also submitted that if the concern was about the appellant missing school, there was another option open to the Magistrate namely, to excuse the appellant from further attendance.
With respect to counsel, these submissions miss the point. It was not a question of the Magistrate conducting some form of enquiry into the appellant’s motivation for pleading guilty, or to explore other options that may avoid the appellant missing school. The role for the Magistrate was to satisfy himself that the youth understood the proceedings and that the pleas being entered were unequivocal. There is nothing in the transcript that supports the submission that the appellant did not understand the nature of the proceeding or that the pleas were equivocal. In the circumstances, given the nature of the offences and the presence of apparently an appropriately instructed solicitor, it was open to the Magistrate to find that the presumption of doli incapax had been rebutted.
The fact that there were charges outstanding that were to be contested in fact works against the appellant’s argument. These charges were adjourned by the Magistrate for further negotiation on the appellant’s application. This cuts across any submission that either counsel or the appellant were improperly influenced to plead guilty to the breach of bail charges by what had occurred on and prior to 5 April 2023, or that there was any confusion or inducement involved in the decision to enter the guilty pleas on that date.
Grounds 2 and 5 have not been established.
Ground 6 – manifest excess
The Magistrate recorded no convictions and imposed no further penalty in relation to these offences. Although this ground was not abandoned, counsel for the appellant chose not to make any substantial submission in support of the ground.
The sentence imposed was not manifestly excessive.
Orders:
1.The appeal is allowed on grounds 1, 2 and 4.
2.The guilty plea entered on 4 January 2023 be set aside and the charge be dismissed.
3.The appeal is dismissed on grounds 2, 5 and 6.