(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
19 May 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
The appellant pleaded guilty on 10 August 2018 to one count of aggravated committing theft using force, contrary s 137 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of theft, contrary to s 134 of the CLCA.
On 27 October 2021, the appellant sought to appeal against his conviction on the basis that he had obtained evidence that he was mentally incompetent to commit the offences and not fit to instruct counsel or plead guilty. By way of amended Notice of Appeal dated 16 December 2021, the appellant also sought to adduce further evidence on appeal to demonstrate a miscarriage of justice had occurred such that his convictions should be set aside, and a retrial ordered.
The respondent did not oppose the Court receiving the further evidence nor the orders that the appeal be allowed, the convictions set aside, and the appellant be remitted to the District Court for a new trial.
Held, (the Court) granting permission to appeal and allowing the appeal:
1.The further evidence is cogent and would likely have had an important bearing on the result at first instance. The further evidence is admitted.
2.The further evidence supports the conclusion that there has been a miscarriage of justice.
3.The appeal against conviction is allowed and the convictions entered on 10 August 2018 and the sentence imposed on 20 November 2018 are set aside.
4.The defendant is remitted to the District Court for a new trial.
[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
Macfarlane v The Queen [2022] SASCA 46
Case
[2022] SASCA 46
Decision Date
CaseChat Overview and Summary
The appeal concerned Mr Macfarlane, the appellant, who sought to appeal his conviction recorded on a guilty plea. The Director of Public Prosecutions conceded that a miscarriage of justice had occurred. The Court of Appeal of South Australia granted permission to appeal and allowed the appeal.
The central legal issue before the court was whether a miscarriage of justice had occurred, warranting the setting aside of the conviction entered on a guilty plea. This involved considering the admissibility and impact of further evidence, particularly psychiatric and psychological reports, on the appellant's fitness to plead and the validity of his guilty plea.
The Court reasoned that the further evidence, including reports from Dr Stewart and Dr Furst, was cogent and would likely have had an important bearing on the result at first instance. Dr Furst's reports indicated that the appellant suffered from a severe mental illness, was unable to engage in logical conversation, and was unfit to instruct counsel or follow proceedings. This contrasted with an earlier report by Dr Stewart, which, while noting possible delusional beliefs, ultimately did not support a mental incompetence defence. The Court found that this further evidence supported the conclusion that a miscarriage of justice had occurred.
Consequently, the Court allowed the appeal, set aside the conviction and sentence, and remitted the appellant to the District Court for a new trial.
Orders
Orders of the court
Held, (the Court) granting permission to appeal and allowing the appeal:
1. The further evidence is cogent and would likely have had an important bearing on the result at first instance. The further evidence is admitted.
2. The further evidence supports the conclusion that there has been a miscarriage of justice.
3. The appeal against conviction is allowed and the convictions entered on 10 August 2018 and the sentence imposed on 20 November 2018 are set aside.
4. The defendant is remitted to the District Court for a new trial.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Though the appellant was released from custody, he was detained pursuant to the Mental Health Act 2009 (SA) pursuant to an order which remains in place until September 2022. The psychiatric evidence The history set out in the psychological report of Dr Stewart dated 31 October 2018 has already been mentioned. In the course of that report, the psychologist expressed the view that it was possible that the appellant harboured a delusional belief. However, the psychologist expressed the opinion that it was more likely that this was a fabricated justification given to minimise his offending. On this basis, the psychologist did not support a mental incompetence defence. On the question of the appellant’s fitness to plead, the psychologist expressed the view that the appellant was able to demonstrate an adequate understanding of the charges and evidence, together with the implications of pleading guilty. This was so notwithstanding that the appellant also told the psychologist that he had “fired his lawyer in the previous week” because “his lawyer was working with corrupt custodial staff to rob him, due to the numerous adjournments which had occurred”. In the course of his psychiatric report dated 27 April 2021, Dr Furst disagreed with the psychologist’s opinions: In fact, Mr MacFarlane appears to have little understanding of his legal status, he is unable to engage in logical conversation and I believe he is mentally unfit to instruct counsel and will be unable to follow the course of evidence or proceedings. Dr Furst explained that the appellant’s mental illness had proved intractable notwithstanding the prescription of high doses of clozapine, and it was likely that he would require a minimum of two years in hospital with a graduated release plan. Dr Furst expressed the opinion that without this level of intervention the appellant’s prognosis was extremely poor. In his later report dated 24 June 2021, Dr Furst recorded a number of other delusional statements made by the appellant. These included that he lived in a house with an underground Lamborghini shop and that he did not have to pay rent because he was helping the owner by building computers all through it. The appellant explained that he and his mates had built a tunnel which was different to the O-Bahn tunnel which ran from his shop underneath the city. He said that this and other tunnels were all dirty and full of paedophiles, before explaining that when he saw the old man sitting with a purple bag he became “pissed off” because the old man had taken the bag from a schoolgirl. The appellant told Dr Furst he knocked over a coffee cup but denied assaulting that man. The appellant told Dr Furst that he took the bag “to save the girl” because he “just sensed” that the girl had been in danger. As for his interaction with the security guard, the appellant explained that he walked to Rundle Mall because previously he had “opened up a diamond mine on North Terrace in conjunction with the Lamborghini shop”. He said that he took the jacket because it had been left there for him by his workmate.
Decision
Reasons for decision
The further evidence supports the conclusion, and the Director’s concession, that there has been a miscarriage of justice. Conclusion For these reasons I joined in the making of the orders by which the appeal was allowed on 23 March 2022.LOVELL AND BLEBY JJA: On 23 March 2022, we agreed with the orders made. We have had the opportunity to read the draft reasons of President Livesey. Leave to adduce further evidence and permission to appeal were conceded. If the guilty plea was not set aside, there would be a miscarriage of justice. We prefer to await full argument before deciding the issue of the test to be applied on an appeal where permission to appeal is sought to set aside a guilty plea.