R v Barke - [2012] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARKE
[2012] SASCFC 57
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Peek)
22 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
Appeal against conviction and sentence – the appellant was initially charged with trafficking in a controlled drug, contrary to s 32(2)(a) of the Controlled Substances Act 1984 (SA) – after negotiations between the appellant’s solicitor and a solicitor employed by the DPP, the appellant agreed to plead guilty to the offence of supplying a controlled drug, contrary to s 33I of the Controlled Substances Act 1984 (SA) – when sentenced, the appellant did not have a copy of the Information and mistakenly pleaded guilty to the charge of possessing a controlled drug, intending to supply that drug to another person, contrary to s 33I(b) of the Controlled Substances Act 1984 (SA).
The issue on appeal was whether there had been a miscarriage of justice – whether the appellant intended to admit he was guilty of the offence pleaded to.
Held: Appeals allowed.
Controlled Substances Act 1984 (SA) s 32(2)(a), s 33I(1), s 33I(1)(b), referred to.
The Queen v Pugh (2005) 158 A Crim R 302; R v Brooks (2007) 96 SASR 78, considered.

R v BARKE
[2012] SASCFC 57
Court of Criminal Appeal: Doyle CJ, Nyland and Peek JJ

DOYLE CJ (ex tempore): This is an appeal against conviction and against sentence. Permission to appeal has been granted by a single judge.
Mr Barke was charged with the offence of trafficking in a controlled drug, contrary to s 32(2)(a) of the Controlled Substances Act 1984 (SA) (CSA).
While the matter was before the Magistrates Court, negotiations took place between the solicitor for Mr Barke and a solicitor employed by the Director of Public Prosecutions. As a result of those negotiations, no evidence was tendered on the charge referred to. Instead, Mr Barke pleaded guilty to a charge of possessing a controlled drug, intending to supply that drug to another person, contrary to s 33I(1)(b) of the CSA. When he pleaded guilty, neither he nor his solicitor had a copy of the Information setting out this charge.
The course of negotiations between Mr Barke’s solicitor and the solicitor for the DPP are outlined in an affidavit sworn by the solicitor for Mr Barke, which affidavit the court received for the purposes of the appeal.
There is no dispute about what is stated in the affidavit. I am satisfied, and the DPP does not dispute, that when Mr Barke entered his plea of guilty both he and his solicitor genuinely believed that the substitute charge to which he was pleading guilty was a charge of supplying a controlled drug, contrary to s 33I(1) of the CSA and not a charge of possession for the purposes of…

Grounds of appeal

[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.

Continue reading R v Barke

Details

AGLC: R v Barke [2012] SASCFC 57
Case: [2012] SASCFC 57
Decision Date: 22 May 2012

CaseChat Overview and Summary

The appeal concerned a conviction and sentence imposed on the appellant, R v Barke, in the Supreme Court of South Australia. The appellant had initially been charged with trafficking in a controlled drug. Following discussions between his solicitor and the Director of Public Prosecutions, the appellant agreed to plead guilty to the lesser offence of supplying a controlled drug. However, at the sentencing hearing, the appellant mistakenly pleaded guilty to possessing a controlled drug with the intention of supplying it to another person, an offence under s 33I(b) of the Controlled Substances Act 1984 (SA), rather than the agreed offence of supplying.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether this discrepancy constituted a miscarriage of justice. Specifically, the court was required to determine whether the appellant had genuinely intended to admit guilt to the offence to which he actually pleaded.

The court reasoned that a miscarriage of justice had occurred because the appellant's plea of guilty was not to the offence he intended to admit. The mistake arose from the appellant not having a copy of the Information at the time of pleading, leading him to plead to a charge different from the one agreed upon during negotiations. The legal principle applied was that a plea of guilty must represent a genuine admission of guilt to the specific offence charged; a plea entered under a fundamental misunderstanding of the charge, even if unintended by the parties involved in the negotiations, could vitiate the conviction.

Consequently, the Full Court allowed the appeal, quashed the conviction and sentence, and remitted the matter for a new trial.

Orders