R v Akis Emmanouel Livas
[2013] ACTSC 214
R v AKIS EMMANOUEL LIVAS
[2013] ACTSC 214 (11 October 2013)
CRIMINAL LAW – Jurisdiction, practice and procedure – committal to the Supreme Court – remitted to the Magistrates Court – s 90A of the Magistrates Court Act 1930 (ACT) – requirement to remit the matter to the Magistrates Court – no discretion where requested by the accused
Crimes Act 1900 (ACT) ss 54, 67
Criminal Procedure Act 1986 (NSW) s 104
Justices Act 1902 (NSW) s 51A
Magistrates Court Act 1930 (ACT), s 90A
Court of Petty Sessions Ordinance 1958 (ACT)
R v Bamford [1972] 2 NSWLR 261
R v Gomez (2007) 1 ACTLR 145
R v Labaro [2004] ACTSC 24
R v Linekar [1995] 3 All ER 69
R v Radic (2001) 122 A Crim R 70
EX TEMPORE JUDGMENT
No. SCC 393 of 2010
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 11 October 2013
IN THE SUPREME COURT OF THE )
) No. SCC 393 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AKIS EMMANOUEL LIVAS
Applicant
AND:THE QUEEN
Respondent
ORDER
Judge: Refshauge ACJ
Date: 11 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The matter be remitted to the Magistrates Court for mention to the Magistrates Court on 21 October 2013.
On 8 December 2010, Akis Emmanouel Livas was committed by the Magistrates Court for sentence to this court on a charge under s 54(1) of the Crimes Act 1900 (ACT) that, on 21 October 2010, he had sexual intercourse with a woman without her consent, knowing that she had not consented or being reckless as to whether she had consented.
On committal, Mr Livas was bailed by the Magistrates Court to appear in this Court on 3 February 2011 but he failed to do so. The proceedings were adjourned for a week and a notice sent to the lawyer who acted for Mr Livas in the Magistrates Court, advising of the adjourned date. Mr Livas did not appear on the adjourned date of 10 February 2011. A warrant was issued for his arrest.
For reasons that are not entirely clear, Mr Livas was not arrested until 1 September 2013, when police attended at the address given on the Notice of Continuance of Bail signed by Mr Livas in the Magistrates Court. He appeared before Burns J the next day, and was remanded in custody, when he did not apply for bail. An annotation on the bench sheet recorded that the address where Mr Livas had been living for the past two and a half years was that of his mother, but when police approached her, she denied that he was living there.
On 18 September 2013, Master Mossop granted Mr Livas bail, as he had been offered employment as a truck driver with a design and construction company. In support of the application for bail, an affidavit was sworn by the lawyer for Mr Livas, setting out the usual matters and annexing a statement of the facts said to support the offence.
In brief terms, the annexed statement of facts set out that Mr Livas is alleged to have made arrangements to have visited a sex worker in order to have sexual intercourse. A price was agreed and he is said to have produced an envelope, which he said contained cash for the agreed price. Mr Livas and the sex worker are alleged to have had intercourse but the envelope, which Mr Livas persuaded the sex worker not to open before the intercourse took place, is alleged not to have contained any money but paper folded to appear to be cash.
The affidavit continued that Mr Livas pleaded guilty on 8 December 2010 when he was committed for sentence to this court, and added that the deponent was “instructed that Mr Livas was not legally represented at the time”. In fact, both the Magistrates Court bench sheet and the committal papers showed that he was represented by a lawyer on the date he entered the plea of guilty.
Nevertheless, it is contended that the facts alleged do not support the offence charged, for procuring sexual intercourse by fraud does not amount to having sexual intercourse without consent as consent was given. See R v Linekar [1995] 3 All ER 69. Whether that decision survives the enactment of s 67 of the Crimes Act 1900 is not a matter which I have to decide. Mr Livas contends that it does survive the enactment.
For this reason, he seeks to have the proceedings remitted to the Magistrates Court so that the contested committal proceeding can be conducted. This is provided for by ss 90A(9)-(10) of the Magistrates Court Act 1930 (ACT) which are in the following terms:
(9) The Supreme Court may order that the proceeding before the Magistrates Court where the accused person pleaded guilty be continued at a time and place stated in the order.
(10) The Supreme Court must make an order under subsection (9) if—
(a) it appears to the Supreme Court from the information or evidence given to or before it that the facts in relation to which the accused person was charged before the Magistrates Court do not support the charge to which the accused person pleaded guilty; or
(b) the accused person or a lawyer representing the accused person or informant asks that the order be made.
Section 90A was inserted into the Magistrates Court Act in 1958 by the Court of Petty Sessions Ordinance 1958 (ACT), though as one subsection as follows:
(7.) The Supreme Court shall, where it appears to the Supreme Court from the information or evidence given to or before it that the facts in respect of which the accused person was charged before the Court do not support the charge to which the accused person pleaded guilty or where the accused person or counsel for the Crown requests that an order be made under this sub-section, and may, where for any other reason it sees fit so to do, order that the proceedings before the Court at which the accused pleaded guilty be continued at a time or place specified in the order.
The change to the presently drafted provision was made in 2005, which was said to bring “the language and structure of the subsection into line with current drafting practice”. That may be so. It may, however, give a false impression because of the terms of subs (9) that there is a discretion in the court.
The provision is somewhat unusual, in that, in other jurisdictions (for example the Justices Act 1902 (NSW), s 51A, though now repealed but replaced substantially in the same terms by s 104 of the Criminal Procedure Act 1986 (NSW)), it is only where the information or evidence does not support the charge that the proceedings can be ordered to proceed in the summary court; there is no provision where it must be ordered to proceed in the summary court if requested by the accused, though it must do so if requested by the informant. See R v Bamford [1972] 2 NSWLR 261 and R v Radic (2001) 122 A Crim R 70.
It is clear that where the circumstances set out in s 90A(10) of the Magistrates Court Act exist, this Court has no discretion and must order that the proceedings before the Magistrates Court be continued at the time and place stated in the order. All that is required is that the accused or his or her lawyer or the lawyer representing the informant must ask for the order to be made. The court is then obliged to make the order under subs (9). There is, where there is such a request, no requirement for the court to form a view about whether the information or evidence supports the charge.
There is no question that Mr Livas will then be required to apply to withdraw the plea of guilty as, for example, in R v Gomez (2007) 1 ACTLR 145, and, if granted, to contest the charge.
Section 90A(13) of the Magistrates Court Act provides:
If an order is made by the Supreme Court under subsection (9) that the proceeding before a court where an accused person pleaded guilty be continued at a time and place stated in the order—
(a)the proceeding must be continued in all respects as if the accused person had not pleaded guilty and as if the proceeding had been adjourned by the court to the time and place so stated; and
(b)the Supreme Court may exercise any power that the Magistrates Court might have exercised under division 3.4.3 (Remand) if the order had been an order made by the Magistrates Court adjourning the proceeding to the stated time and place, and that division applies in relation to the accused person.
The position is, therefore, that the proceedings in the Magistrates Court are as if no plea had effectively been taken, as pointed out by Gyles J in R v Labaro [2004] ACTSC 24 at [16].
Accordingly, I having been requested by the accused’s lawyer to remit the matter to the Magistrates Court; as requested I will do so. The order of the court is that the matter be remitted to the Magistrates Court. I will remit the matter for mention to the Magistrates Court on 21 October 2013.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date:
Counsel for the Applicant: Mr P Edmonds
Solicitor for the Applicant: Paul Edmonds & Associates
Counsel for the Respondent: Mr T Murray
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 11 October 2013
Date of judgment: 11 October 2013
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