SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BROOKS & CHILDS
[2006] SASC 247
Reasons for Ruling of The Honourable Justice Bleby
18 August 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Application to withdraw plea of guilty after verdict of guilty by jury - Jury verdict of guilty by direction - Validity of jury verdict - Verdict of 13 jurors - s 6A(2) Juries Act 1927 (SA) - Whether sentence passed - Whether trial Judge has power to entertain application to withdraw plea after jury verdict - Consideration of principles governing the exercise of discretion - Application refused.
Juries Act 1927 (SA) s 6A; Criminal Law Consolidation Act 1935 (SA) s 352(1); Criminal Procedure Act 1996 (NSW) s 91(1), 91(2); Criminal Law (Sentencing) Act 1988 (SA) s 3, s 9A, s 32(5)(c); Supreme Court Criminal Rules 1992 r 2.01, r 2.02, r 3.01; Supreme Court Act 1935 (SA) s 45(3), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Clouter and Heath (1859) 8 Cox CC 237; R v Hura (2001) 121 A Crim R 472; R v Pugh (2005) 158 A Crim R 302; R v Webb and Hay (1992) 167 LSJS 135; S v Recorder of Manchester [1971] AC 481, applied.
R v Nam and Sansbury [1968] SASR 107, distinguished.
Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; Maxwell v The Queen (1996) 184 CLR 501; McAuliffe v The Queen (1995) 183 CLR 108; McNicholl v Tothill (1988) 47 SASR 134; R v Boag (1994) 73 A Crim R 35; R v Chiron [1980] 1 NSWLR 218; R v Clayton (1984) 35 SASR 232; R v Collis and Collis (1989) 43 A Crim R 371; R v Douglass (2004) 9 VR 355; R v Drew [1985] 1 WLR 914; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Sagiv (1986) 22 A Crim R 73; R v Tonks and Goss [1963] VR 121; R v Vlassakis (2001) 216 LSJS 274; R v Wilkes (2001) 122 A Crim R 310; Winsor v The Queen (1866) LR 1 QB 289, considered.
R v BROOKS & CHILDS
[2006] SASC 247BLEBY J
Background
Vicki Yvonne Brooks and Dennis William Childs were jointly charged with the murder of Robert Keith Andersen. A jury was empanelled for the trial on the afternoon of Monday 10 July 2006. Because the trial was expected to occupy up to five weeks I decided to exercise the power conferred on me by s 6A of the Juries Act 1927 (SA) to empanel one additional juror for the trial.
Both accused were arraigned before the jury and pleaded not guilty. Each accused was separately represented by counsel and the trial proceeded.
On Friday 14 July 2006, following the afternoon break, and without prior warning, Mr Kelly, counsel for Ms Brooks,…
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- AGLC
- R v Brooks and Childs [2006] SASC 247
- Case
- [2006] SASC 247
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge had the power to entertain an application to withdraw a plea of guilty after a jury verdict had been returned. The applicants argued that the trial judge had such power and that the principles governing the exercise of discretion supported the making of the application. The court considered the principles governing the exercise of discretion in such matters, including the timing of the application, the reasons for the delay, and the impact of the application on the administration of justice.
The court held that the trial judge did not have the power to entertain an application to withdraw a plea of guilty after a jury verdict had been returned. The court found that the jury verdict had been properly returned and that the applicants had not established any grounds for the court to interfere with the verdict. The court held that the application was an abuse of process and an interference with the administration of justice. The court refused the application to withdraw the pleas of guilty.
The court ordered that the applicants' pleas of guilty stand and that the trial proceed to the sentencing phase. The court held that the applicants' pleas of guilty were valid and that the jury verdict was valid. The court further held that the trial judge did not have the power to interfere with the verdict of the jury. The applicants' application to withdraw their pleas of guilty was refused, and the trial proceeded to the sentencing phase.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
With those principles in mind, I turn to consider the circumstances in which the present application was made.Consideration of the Application The application was supported by an affidavit of the applicant and of her former counsel. Both were cross examined by Mr Hinton, and there was tendered a statement signed by the applicant and provided to the DPP by her solicitors. In her sworn evidence the applicant verified the truth of the relevant parts of that statement relied on by Mr Hinton and to which reference, in due course, will be made. It is not in dispute that the deceased died following extensive burns as a result of being set alight with the aid of an accelerant in the car park of the Marion Hotel shortly after 2 am on the morning of 26 January 2005. Although there were some eye witnesses to the incident, no-one was able to identify either of the accused as being the person who set fire to the deceased or who was present when that occurred. The case against both accused was circumstantial and was based on an inferred joint criminal enterprise. Mr Kelly had been retained as Ms Brooks’ counsel since shortly after her arrest on the morning of 26 January 2005. The applicant deposed in her affidavit that until Friday 14 July 2006, the day she pleaded guilty, she had instructed Mr Kelly that she was not at the car park of the hotel. She now says that was not true. Mr Kelly spoke to his client about 10 minutes prior to the end of the luncheon adjournment on Friday 14 July 2006. There was some slight difference between him and the applicant as to how the relevant conversation between them arose. Although those differences are probably not material, I prefer the evidence of Mr Kelly as it is more detailed and it accords with what was about to happen in the trial. Mr Kelly was concerned about the evidence of a particular witness due to be called that afternoon. He expressed his concern to the applicant that his instructions disclosed no apparent motive for that witness to tell lies in respect of the applicant’s movements on the night of the murder, and that the evidence of the witness would be likely to be very damaging to the applicant’s defence, meaning, as I understand it, that the evidence would support the prosecution case that Ms Brooks was at the hotel car park. He expressed his view that the evidence to be led by the prosecution “was overwhelming as to establishing her presence at the murder scene”. On her own evidence, the applicant acknowledged that there was “a lot of evidence against me”. Mr Kelly deposed that in the course of that discussion the applicant became tearful and he enquired whether she wanted to discuss a possible change of plea. She said that she did. As the Court was about to resume Mr Kelly told the applicant that he would speak to her further at the next opportunity but before the relevant witness was to be cross examined. The evidence led following the luncheon adjournment had little, if anything, to do with the involvement of the applicant. It concerned the case against the co-accused, Mr Childs.