MORAN v Police - [2005] SASC 375

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORAN v POLICE
Judgment of The Honourable Justice Duggan
29 September 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against ruling of magistrate to refuse an application by appellant to withdraw a plea of guilty - competency of appeal under Magistrates Court Act 1991 s 42 - whether the ruling was interlocutory and the appeal thereby incompetent - distinction between final and interlocutory judgments - appeal dismissed as incompetent.
Magistrates Court Act 1991 s 42, referred to.
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, applied.
R v Kardogeros [1991] 1 VR 269; Police v Dorizzi (2002) 84 SASR 403, discussed.
R v Sewell [2001] NSWCCA 299; Ming Yuk (Raymond) Wong v DPP [2005] NSWSC 129; R v Filimoehala [2003] NSWCCA 37; R v McQuire & Porter (No 2) [2000] QCA 40, considered.

MORAN v POLICE
[2005] SASC 375
Magistrates Appeal

DUGGAN J. The appellant has filed a notice of appeal against the decision of a magistrate refusing an application by the appellant to withdraw a plea of guilty which the appellant entered to a charge of unlawful wounding. The notice of appeal was filed out of time and the appellant has also applied for an extension of time within which to appeal.
The appellant was charged with a series of offences which relate to his former partner, Ms Pryor. He appeared before the Port Augusta Magistrates Court on various occasions when the matters were adjourned.
On 21 March 2005 he was represented by Mr Weldon, a solicitor, at a mention of the case. There was a further appearance by the appellant on 18 April 2005. Mr Weiss, another solicitor, represented him on this occasion. Mr Weiss intimated to the court that the appellant intended to plead guilty to all charges against him. Mr Weiss then applied for leave to withdraw from the file. Leave was granted. The appellant then pleaded guilty to charges which included the charge of unlawful wounding. The matter was remanded to 31 May 2005 for submissions.
The matter was called on again on 18 May 2005 at the request of Mr Weiss who, presumably, had been retained by the appellant despite his earlier withdrawal from the file. On this occasion Mr Weiss applied on behalf of the appellant to withdraw the plea of guilty to the charge of unlawful wounding. In due course, the magistrate heard submissions on the application and refused leave to withdraw the plea. It is unnecessary for present purposes to refer to the reasons advanced by the appellant in support of the application to withdraw his plea other than to mention that he said he wished to contest the charge and raise self-defence.
After refusing the application the magistrate disqualified himself from further hearing the matter. As yet no sentencing submissions have been made.
When the matter came before me an issue was raised as to the competency of the proposed appeal and I heard argument on that point. The respondent submitted that the ruling on the application to withdraw the appellant’s plea of guilty was interlocutory in nature and not subject to appeal at this stage of the proceedings.
In so far as it is relevant, s 42 of the Magistrates Court Act 1991 (“the Act”) provides:
42. (1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a)An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
It is clear that, if the magistrate’s ruling is interlocutory in nature, the proposed appeal is incompetent.
The distinction between final and interlocutory judgments or orders is not free from difficulty in many cases: Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248. In that case it was necessary to decide whether a refusal to set aside a default judgment was a final or interlocutory order. Gibbs CJ said at 248:
The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439 at p 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423 at p 440.
In Blackstone’s Criminal Practice (11^th ed) (2001) at D10.23 it is said that the effect of a plea of guilty is to release the prosecution from their obligation to prove the case. The accused stands convicted on his own words. The court has a discretion to permit a withdrawal of a plea of guilty, in which event the prosecution must prove its case in the ordinary way. Although a decision on an application of this nature has important implications for both parties in relation to the disposal of the matter, I am of the view that it does not formally dispose of the rights of the parties in the sense discussed by the authorities in this context. The refusal of the application in the present case did not finally dispose of the appellant’s rights; it was a refusal to reverse the consequences of an act of the appellant undertaken earlier in the proceedings.
Furthermore, the discretion to allow a withdrawal of a plea of guilty may be exercised at any time prior to conviction or sentence. The application can be made on more than one occasion. Indeed, in the present case, the court itself could be placed in the position of questioning the appropriateness of maintaining a plea of guilty on this charge in the event that submissions were made which were inconsistent with that plea: R v Kardogeros [1991] 1 VR 269.
In Carr’s case the fact that the disappointed party could apply again for the order previously refused was deemed sufficient to characterise the application as interlocutory in nature. It is not to the point that the subsequent application might fail. Mason J dealt with this aspect when he said at 256:
The question remains whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail. The present case is a striking example. Naturally the Court of Appeal could not be expected to depart from its earlier decision. Consequently a further application to set aside the judgment is of no value to the appellants. In Hewitt (1977) 17 ACTR 1 it was very different.
The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment.
Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or interlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court.
Finally, it is relevant to note that courts in other jurisdictions have treated orders made on applications to withdraw pleas of guilty as interlocutory in nature: R v Sewell [2001] NSWCCA 299 at [3], Ming Yuk (Raymond) Wong v DPP [2005] NSWSC 129 at [10], R v Filimoehala [2003] NSWCCA 37 at [34], R v Mc Quire & Porter (No. 2) [2000] QCA 40 at [21] – [24].
It is apparent that s 42(1a) of the Act restricts rights of appeal to prevent summary proceedings from being fragmented: Police v Dorizzi (2002) 84 SASR 403 at [19]. Fragmentation of the proceedings would occur if appeals could be instituted prior to sentencing against orders made on applications to withdraw pleas of guilty.
In my view the ruling of the magistrate in the present case was interlocutory in nature and the proposed appeal is incompetent.
I allow the application to extend the time within which to appeal. However, the objection to competency is allowed and the appeal is dismissed as incompetent. That is not to say that the appellant is prevented from complaining of the refusal to allow him to withdraw his plea in the event that he is sentenced in respect of this offence and subsequently appeals against sentence.