R v Barke
[2012] SASCFC 57
•22 May 2012
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 57Court 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 supply. In the circumstances the charge to which he thought he was pleading guilty was a less serious charge.
Stated so briefly, it might seem unlikely that this could have happened, but when one has regard to the facts giving rise to the charge and to the course of negotiations between the DPP and the solicitor, and the fact that when the plea of guilty was entered neither Mr Barke nor his solicitor had a copy of the substitute charge, one can understand how the mistake came about.
As it happens the mistake was not detected. Subsequently Mr Barke was committed for sentence in the District Court. Sentencing submissions were made to a District Court Judge. An examination of submissions on sentence indicates that once again counsel for Mr Barke and counsel for the DPP were at cross‑purposes, and the Judge did not detect the confusion. There is no reason why the Judge should have detected it.
When the matter came before a Judge of this Court on the application for permission to appeal against sentence, the Judge in question had detected the problem and raised it with the parties. As a result of that an application was made for an extension of time and for permission to appeal against conviction.
The circumstances in which a court can allow an appeal against conviction recorded after a plea of guilty to the charge were summarised by me in The Queen v Pugh [2005] SASC 427; (2005) 158 A Crim R 302. I refer to my reasons at [32]-[41]. The ultimate question is whether there has been a miscarriage of justice. A well-established category of that kind has been identified as one in which the person charged did not appreciate the nature of the charge or did not intend that he admit he was guilty of it. I refer also to my reasons in the R v Brooks [2007] SASC 35; (2007) 96 SASR 78 at [68]-[83].
Because a plea of guilty is an admission of all essential elements of an offence, this ground will rarely be made out. But this is one of those rare cases in which I am satisfied Mr Barke did not intend to plead guilty to the charge to which he pleaded guilty, and am satisfied that the solicitor and counsel for the DPP, and the solicitor and counsel for Mr Barke were at cross-purposes.
Accordingly the appeal should be allowed. The conviction should be set aside and the matter should be remitted to the District Court. In the District Court Mr Barke can make application for permission to withdraw his plea of guilty, and if permission is granted, he can then be charged with the offence of supply, if the DPP wishes, or he can plead not guilty to the charge of possession for supply and the matter can take its course.
In the circumstances there is no need to say anything about the sentence, particularly bearing in mind that that was imposed for an offence for which Mr Barke does not admit. For those reasons I would allow the appeal and make the orders indicated.
NYLAND J: I agree with the reasons of the Chief Justice and the orders he proposes.
PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.
DOYLE CJ: The orders of the Court are as follows:
1.That the appeal be allowed.
2. That the conviction recorded in the District Court be set aside.
3. That the matter be remitted to the District Court.
4. That Mr Barke be remanded to appear before the District Court on Monday, 4 June 2012 at 10 am
5. That Mr Barke be released on bail, conditions of the bail being that he not leave the State; that he reside at 12 Pelsaert Avenue Fairview Park, South Australia, 5126.
6. That he forfeit the sum of $1,000 if he fails to comply with any term or condition of the bail agreement.
I direct that the bail agreement be entered into before the Clerk of Arraigns.
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