R v Baehnisch - [2016] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAEHNISCH
[2016] SADC 163
Reasons for Ruling of His Honour Judge Soulio
11 November 2016
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Defendant charged with one count of aggravated indecent assault of a child under 14 years, three counts of unlawful sexual intercourse and one count of aggravated inciting a child to commit an indecent act - defendant pleaded guilty in Magistrates Court and was committed for sentence to this Court - appeared in guilty plea arraignment list - Form 33 provided - defence counsel sought adjournment of four weeks to obtain psychological report - allocatus not administered - new defence counsel indicated application would be made to withdraw guilty plea - defendant contended that he was able to withdraw plea as of right - application refused.
Criminal Law Consolidation Act 1935 Part 8A; Summary Procedure Act 1921 s 111, referred to.
R v O'Loughlin [2008] SADC 76, considered.

R v BAEHNISCH
[2016] SADC 163
Introduction

The defendant, Mr Baehnisch, pleaded guilty in the Magistrates Court on 7 April 2016 to one count of unlawful sexual intercourse, and was committed for sentence to the District Court of South Australia. He first appeared in the District Court on 3 June 2016, and again on 1 July 2016 when counsel withdrew from the file and the defendant’s current counsel appeared. On 5 August 2016 the matter was set for the hearing of an application to withdraw the plea. The defendant contended that he was entitled, pursuant to s 111 of the Summary Procedure Act (SA) 1921 (‘SPA’) to withdraw his guilty plea as of right.
Background
The defendant had originally been charged with one count of aggravated indecent assault of a child under the age of 14 years, three counts of unlawful sexual intercourse and one count of aggravated inciting a child to commit an indecent act committed at Glanville on 18 March 2015.
The defendant engaged counsel and, in turn, counsel engaged in negotiations with counsel for the Director of Public Prosecution (‘DPP’) whilst the matter was in the Magistrates Court committal process. An agreement was reached. A plea of guilty to one count of unlawful sexual intercourse was to be accepted in full satisfaction of the Information. On that basis the defendant pleaded guilty in the Magistrates Court on 7 April 2016, and was committed for sentence to this Court.
On 27 April 2016 counsel for the DPP sent to defence counsel a draft statement of agreed facts for sentencing submission purposes. On 3 May 2016 defence counsel sent an email stating that she had no difficulty with the proposed agreed facts.
The defendant appeared in the guilty plea arraignment list in this Court on 3 June 2016. The arraignment list judge was provided with a Form 33, a document indicating the course that the action would take. A Form 33 is completed by defence counsel on instructions of the defendant. The Form 33 recorded that the matter was proceeding as a guilty plea, that submissions would take half an hour to 45 minutes, and that a “psych report” was being sought which was expected to be available in late June.
On the appearance in this Court on 3 June 2016, counsel for the defendant said:
I filed my Form 33 indicating that I was waiting on a psychiatric report before submissions.
She went on to say:
I am asking for a further four-week adjournment for submissions. I also note that the prosecution have filed an application for enforcement of breached bond. I don't anticipate there is going to be any difficulties. I need to go through that with my client. I ask that that be admitted on the next occasion. (my emphasis)
For reasons which are not apparent, the allocutus was not administered.
As Barrett DCJ observed in R v O'Loughlin the allocutus is only one means by which a defendant makes clear his plea is maintained. The maintenance of a plea must be determined by other means if an allocutus is not administered.[1]
[1] R v O’Loughlin [2008] SADC 76.
Generally speaking, under the new arraignment process it is envisaged that in matters committed to the guilty plea arraignment list, submissions will be made on the day the matter is first listed.
Where a matter cannot proceed to submissions on that first listing, for some reason, such as a decision to obtain a psychological or psychiatric report and where such report is not yet available, the arraignment list judge may set a date for submissions, and await receipt of the report. In the present case the arraignment list judge simply adjourned the matter to another list on 1 July 2016.
On 1 July 2016, former counsel for the defendant sought leave to withdraw. Mr Reeves, who appeared on the present application, appeared for the defendant. He said that he had been instructed to take over the file. He said that a psychological report had been obtained and that “within that report there are some issues that we have to investigate and talk to the prosecution about.”
The arraignment list judge on that occasion, a different judge, noted that the allocutus had not been read and engaged in an exchange regarding the maintenance of the plea. However, I apprehend that that exchange took place as the second arraignment list judge had not had an opportunity to consider the implications of what had occurred on the earlier appearance.
As counsel for the DPP submitted in argument before me, the relevant test remains not whether the allocutus was administered, and not whether a specific judge of this Court became seized of the matter, but rather whether the defendant had engaged in conduct consistent with adherence to the plea that was committed for sentence and whether the court had accepted that plea.
The actions taken on behalf of the defendant by his former counsel in entering into the negotiations resulting in the bulk of the charges being withdrawn, entering the plea in the Magistrates Court and then agreeing the factual basis for the plea indicated that the plea of guilty was carefully considered. Arranging a psychological report for the purposes of being able to address the court in mitigation of penalty further supports the finding that the plea of guilty was to be maintained.
Section 111 SPA provides:
(1)     A person who has been committed to a superior court for sentence may, on appearing before that court, withdraw the admission of guilt and plead not guilty to the charge.
(2)     In such a case, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.
(3)     The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.
As was said in R v O’Loughlin:[2]
The above discussion clarifies the meaning of s 111 of the Summary Procedure Act. It reinforces the interpretation of sub-section (1) urged by the prosecutor. As indicated the defendant must do something to indicate his adherence to his plea. Any action taken consistent with adherence to the plea will be sufficient. That first appearance in the superior court is in my view, the last opportunity to demonstrate conduct inconsistent with adherence to the plea. Obviously a withdrawal of the plea would accomplish that. That does not require the leave of the court at that stage. I respectfully agree with the reasoning of His Honour Judge Wilson in R v Wilson that the words of s 111(1) suggest a defendant may unilaterally withdraw his plea of guilty. In the absence of an allocutus, conduct consistent with an adherence by the defendant to his guilty plea and consistent with the court’s acceptance of that plea will mean that thereafter the defendant must seek the court’s leave to withdraw the plea. The court has an inherent jurisdiction to grant leave to avoid injustice.
[2] R v O’Loughlin [2008] SADC 76 at [48].
The occasion upon which any issue to the contrary might have been raised was on 3 June 2016, the first appearance upon arraignment in this Court. At that time the action taken was to seek an adjournment to await the receipt of the report for the purposes of submissions. There was no suggestion that that report was being sought for the purposes of raising a possible defence pursuant to Part 8A of the Criminal Law Consolidation Act on the basis of mental incompetence, or lack of fitness to plead. Indeed counsel on the present application did not suggest that such a defence was contemplated. It was, on the face of the material before me, part of the usual practice of obtaining a report setting out something of the history and psychological and psychiatric status of the defendant for the purpose of submissions. Former counsel for the defendant said as much. That action was consistent with the maintenance of a plea rather than the opposite, as was the suggestion that the suspended sentence bond, which would have been breached by the offence to which the defendant pleaded guilty, would be admitted on the next occasion, notwithstanding that an opportunity was sought to read through the application with the defendant, and obtain instructions.
The defendant’s actions on 3 June 2016 were consistent only with a maintenance of a guilty plea. The court accepted his plea, albeit without administering the allocutus, by simply adjourning the matter to the next guilty plea arraignment list for submissions.
The defendant is unable to withdraw his plea as of right pursuant to s 111 SPA, and requires leave to withdraw his plea. I will hear the parties as to consequential orders.