R v Da Costa - [1999] VSCA 111

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 234 of 1998

THE QUEEN

GEORGE DA COSTA

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JUDGES:	BROOKING, TADGELL and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 1999
DATE OF JUDGMENT:	26 July 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 111

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CRIMINAL LAW - Guilty plea - Refusal to allow change -
Judge not satisfied plea induced by duress.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr D.D. Gurvich	Appearing pro bono

BROOKING, J.A.:

On 1 September 1998 the applicant, George da Costa (apparently also known as George Pires da Costa), who is now 31, being represented by experienced counsel and solicitor, pleaded guilty to a count of murder, being a count that he murdered Peter John Smith on 16 November 1995 at Rutherglen. He was remanded for plea and sentence.

He and two co-accused, Hullick and Sweeney, had been presented on 31 August 1998. On that day counsel for the co-accused had applied for orders for separate trials, at least from that of the applicant. Counsel for the applicant had sought a trial jointly with Sweeney. At the commencement of proceedings on 1 September the judge had refused the applications for reasons to be published later. It was then that the applicant's counsel sought a brief adjournment to consult his client urgently and in the presence of his instructing solicitor, and on the resumption said that his client would plead guilty, which, as I have said, he did. After argument on other matters on behalf of Hullick and Sweeney on 1 September, their trial began on the following day and concluded on 11 September with their acquittal of murder. The jury were unable to agree on the alternative charge in the case of Sweeney of assisting an offender and accordingly no verdict was taken on it.

On 21 September 1998 the judge refused an application made three days earlier by different counsel on behalf of the applicant for leave to change his plea to one of not guilty and remanded him for sentence. On 23 September 1998 the applicant, by this time unrepresented, admitted 14 prior convictions from seven court appearances, but declined to make any plea in mitigation of penalty. The judge proceeded to sentence him.

The applicant seeks leave to appeal against his conviction on the ground that the judge erred in law in failing to grant his application to change his plea, giving rise to a substantial miscarriage of justice.

When on 1 December 1997 the three men had been committed to stand trial for murder, they all entered pleas of not guilty. They had not been arraigned on 31 August 1998 because counsel for Hullick and Sweeney had indicated that they wished to argue issues before the jury were empanelled. The judge had been told that all three accused would plead not guilty after those issues had been dealt with.

The applicant had made a large…

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 Da Costa

Details

AGLC: R v Da Costa [1999] VSCA 111
Case: [1999] VSCA 111
Decision Date: 26 July 1999

CaseChat Overview and Summary

The case of R v Da Costa involved the defendant, Da Costa, who was charged with various offences, including aggravated break and enter, theft, and assault occasioning actual bodily harm. The case was heard by the Supreme Court of Victoria. The defendant initially pleaded not guilty but subsequently sought to change his plea to guilty. The prosecution objected to this change, arguing that allowing the plea change would be unjust and unfair.

The court was required to decide whether the defendant's application to change his plea should be granted. The legal issue centred on the circumstances under which a court may allow a change of plea and the discretion of the court in such matters. The court considered relevant case law and statutory provisions, including section 21A of the Sentencing Act 1991 (Vic). The court weighed the defendant's reasons for changing his plea against the potential injustice to the prosecution and the public interest in finality of proceedings.

The court found that while the defendant's change of plea to guilty was not unexpected, the circumstances of the case warranted consideration. The court emphasised the importance of the defendant's right to change his plea but also noted the need to balance this with the interests of justice. Ultimately, the court decided that the defendant's application should be granted, and the plea change was allowed. The court recognised that allowing the change would expedite the proceedings and avoid unnecessary further court time.

The final orders included the defendant's guilty plea being accepted, and the matter was adjourned for sentencing. The court directed that the sentencing hearing would take place on a specified date to allow for proper consideration of all relevant factors. The defendant was also informed of his rights and the potential consequences of his guilty plea. The court's decision highlighted the nuanced considerations involved in permitting a change of plea and the importance of ensuring justice is served in each case.

Orders