R v England (No 2) No. DCCRM-99-619

R v ENGLAND (No. 2)
[2000] SADC 149
Judge Bishop
Criminal
Reasons (ex tempore) for ruling

In the Elizabeth Magistrates’ Court on 30 June 1999, the accused, Mark Anthony England, was committed to this court for trial upon an information which alleged his commission of 14 offences. Upon his arraignment before Judge Herriman on 2 August 1999, the accused pleaded not guilty to each of 15 counts of the information upon which he was then presented; that is, seven counts of burglary, five counts of rape, one court of robbery, one count of indecent assault and one count of robbery with violence. He was remanded for a directions hearing.
Directions hearings were subsequently held on 1 September 1999, 14 October 1999, 4 November 1999 and 11 November 1999. On 11 November 1999, the Director of Public Prosecutions filed two fresh informations, one alleging 11 offences and the other alleging four offences, thereby splitting the 15 offences alleged in the original information, which had been filed on 2 August 1999.
On 10 January 2000, the accused was presented for trial upon the information of 11 November 1999, which alleged his commission of 11 offences; that is, four counts of burglary, one count of robbery, five counts of digital rape and one count of procuring an act of gross indecency, those offences having allegedly been committed by the accused in five separate incidents at Salisbury and Salisbury Downs, during about eight weeks in November and December 1998.
Upon his arraignment upon that information before me on 10 January 2000, the accused pleaded not guilty to each of the 11 alleged offences. Through his then counsel, Mr Michael Ward, the accused made application for separate trials of those offences alleged in each of the five incidents. He also applied for the exclusion, at those trials, of evidence concerning an incident which occurred in October 1992 at Torrensville. Those applications, which were opposed by Mr McEwen, counsel for the Crown, were then heard, that is, on 10 January 2000. In published reasons for rulings delivered on 27 January 2000, I that day ruled that joint trial be held in relation to counts 1 to 10 (inclusive) of that information, that separate trial be held in relation to count 11 and that evidence concerning the 1992 incident not be adduced in either trial.
On 17 January 2000, Mr Jensen, counsel for the Crown, confirmed that a trial date had been fixed for 8 May 2000. Liberty was granted to counsel to attend before me in chambers in relation to any further pre-trial matters. On 6 March 2000, I vacated the trial date of 13 April 2000, which had been fixed by Judge Allan on 2 February 2000, in relation to count 11 of the information.
When the matter was next before me on 3 May 2000, Mr Millsteed QC and Ms Woithe appeared for the Crown and Mr Boylan for the accused. Mr Millsteed indicated that, on trial of the accused upon counts 1 to 10 (inclusive), the Crown would be seeking to present evidence relating to an alleged burglary, which is the subject of count 3 of the second information filed on 11 November 1999. He apologised for the delay in raising that issue, saying that Mr McEwen had not previously turned his mind to it. At Mr Millsteed’s request, I expressed tentative clarification of certain aspects of the rulings which I had given on 27 January 2000. (I say ‘tentative’ because Mr Boylan had not been heard upon those aspects.) Mr Boylan requested that these further matters be dealt with on Monday 8 May 2000, before empanelment of a jury.
When the matter resumed at 2.28pm on 8 May 2000, Mr Boylan indicated that, “This matter has resolved”; that a new information had that day been laid which alleged 12 offences – that is, five counts of burglary, two counts of indecent assault, four counts of rape and one count of break, enter and larceny; and that the accused would plead guilty to those 12 alleged offences. Mr Millsteed indicated that, upon those pleas being entered, the Crown would enter a nolle prosequi in relation to each of the three earlier informations. Thereupon the accused was arraigned upon the new information, he pleaded guilty to those 12 offences and the Crown entered nolle prosequis in relation to the other three informations. The allocutus was then administered to the accused. Upon Mr Boylan’s application, the accused was remanded until 19 June 2000, for the purpose of obtaining some medical information which he wished to present.
On 19 June 2000, Mr Boylan indicated that there was a delay in obtaining that medical information. By consent, the matter was further remanded until presentation of medical reports and my availability after returning from leave in November 2000.
On 26 June 2000, the matter was again called on before me, because the television station, Channel 9, had applied for access to the transcript of suppressed submissions made before Judge Allan on 31 January 2000, when unsuccessful application for bail was made on behalf of the accused. In applying for adjournment of that application, Mr Boylan said,
“Mr Rofe spoke to me last week about a certain matter. I have not taken instructions on it. But I inform your Honour that it is a possibility, as a result of that conversation, that there may be an application to change the plea. I can say nothing further than that. I have not had the opportunity to speak either to my solicitor or to him to speak to my client about that matter.”
The application was adjourned to enable Mr Boylan to obtain instructions.
On 19 July 2000, there was received in the court the purported application of the Director (dated 17 July 2000), pursuant to section 23 of the Criminal Law (Sentencing) Act 1988, that the accused be remanded to appear for sentence before the Supreme Court. By letter to my associate (dated 19 July 2000), the accused’s solicitors asked that the matter be listed, to enable the accused to make application “for a change of pleas”.
Upon receipt of those two applications, the matter was called on before me on 25 July 2000. Upon Mr Rofe indicating that his (purported) application was being pursued, I indicated that I did not think that application could be entertained so long as the application of the accused to change his pleas was afoot. I also indicated that, although I did not know the basis of the accused’s application, if that basis could affect my impartiality as the trial judge, then I would be disinclined to entertain that application. In those circumstances, I said,
“Although I am on leave, I am within the jurisdiction except for three weeks in September. If, having obtained further instructions, Mr Boylan, you wish to have the matter brought on for a determination as to who should hear the application, I don’t mind coming in for that purpose, and it could well be that, as happened in the Thompson case [that was a case to which I had referred], it should be referred to somebody other than the trial judge.”
I returned from leave on 30 October 2000. Not having heard from the parties, the matter was called on before me on 21 November 2000, when the two applications were listed for hearing before me on 8 December 2000 (that is, today). On 5 December 2000, the accused’s formal application was filed in the court. In that application, the accused sought two orders; first, that he be permitted to withdraw his pleas of guilty; and, secondly, that the application of the Director, that the applicant be remanded to appear for sentence before the Supreme Court, be permanently stayed. The grounds upon which those orders were sought were as follows:
“1(i)The applicant’s pleas of guilty were entered as a result of pressure from his father.
(ii)The pleas were entered as a result of an improper inducement from the prosecution.
2(i)The applicant’s pleas of guilty were entered after the prosecution had agreed that the applicant should receive “significant credit” for those pleas. The prosecution application pursuant to s.23 of the Sentencing Act is inconsistent with that agreement.”
In support of that application, affidavits of the accused (sworn on 3 December 2000) and his father, Mr Devito (sworn on 5 December 2000) were filed. Those affidavits were here received without objection. In his affidavit, the accused deposed to the reasons for which he had entered his pleas of guilty when first arraigned on the new information on the afternoon of 8 May 2000. Those reasons included, first, that he had that day spoken with, obtained and accepted the advice of his father that he should agree with the proposal which had then been presented to the accused by the Crown (the proposal was that, upon the accused pleading guilty to the 12 offences alleged in the new information, several other charges would be dropped by the Crown and the Crown would not oppose the accused being given credit for entering his pleas on 8 May 2000); and secondly, that, had the accused (and his father) been aware that the Crown would make the (purported) application which has now been made, pursuant to section 23 of the Sentencing Act, the accused would not have then pleaded guilty.
In his affidavit, the accused also deposed that, when he spoke with his father on 8 May 2000, his father was very distressed; that he told his father that he did not agree with facts deposed to in the witness statements; that time was limited and he was feeling very pressured to make a decision; that he believed that, had he had more time to discuss the matter with his father, he would not have decided to plead guilty; that being of Italian descent, his father’s “directions” (as he termed them) have weighed heavily in his decision-making throughout his life; that, for that reason, he relied heavily on his father’s “directions” and words (to the effect) “plead guilty and get it out of the way, you will get time taken off”, even though he did not agree with facts in the witness statements; and that, up to the time of pleading guilty, it had been his intention and unwavering instruction, to his legal representatives, to pursue not guilty pleas in relation to all outstanding charges against him.
In his affidavit, Mr Devito deposed to having advised his son that he would be better off were he to plead guilty, irrespective of whether he was guilty or not guilty, in that he could obtain a reduced sentence, the Crown’s representatives having advised that the Crown would not oppose credit being given for pleas of guilty. Mr Devito also deposed that, in agreeing to plead guilty, his son had told him that he had not “done all those things”; that while he was very forceful with his son in appealing to his emotions, he believed that he was acting in his son’s best interests at the time; and that, had the Crown mentioned that application might be made, pursuant to section 23, he would not have impressed his view upon his son to plead to the Crown’s proposal.
Pursuant to section 23(2) of the Criminal Law (Sentencing) Act, where a defendant is convicted by the District Court of an offence to which that section applies, the court may, “if of the opinion that the powers under this section should be exercised in relation to the defendant”, remand the defendant to appear for sentence before the Supreme Court. (The offences of rape and indecent assault, to which the accused has here pleaded guilty, are offences to which section 23 applies.) Under that section, before determining sentence the Supreme Court may direct that enquiry and report be made to the court by at least two legally qualified medical practitioners as to whether the defendant is incapable of controlling his sexual instincts. Upon the receipt of those reports (if positive) and upon being satisfied that the defendant is so incapable, the court may declare accordingly and direct that the defendant be detained in custody until further order; that is, in addition to, or instead of, imposing a sentence of imprisonment for the offence or offences (see subsection (6)). Upon being detained under section 23, the defendant cannot be released until the order is discharged in accordance with that section.
I have this morning heard oral submissions, from both Mr Boylan, for the accused, and Mr Rofe, the Director. I thank them both for their written outlines of submissions which, as I have indicated, although received somewhat late, I have had a chance to consider. Upon the material presented, I am satisfied that, on 8 May 2000, the accused entered pleas of guilty to the 12 offences alleged in the new information for the reasons to which he has deposed, namely, because of the advice which he that day obtained from his father (which advice was based upon the indication that the Crown would drop several other charges and would not oppose him being given credit for pleading guilty) and because he was not then aware that the Crown would subsequently make the purported application pursuant to section 23 of the Sentencing Act. Had it not been for the combination of those reasons, I am satisfied that the accused would not then have pleaded guilty to those 12 offences.
In these circumstances, the question which arises is: should the accused now be permitted to withdraw his pleas of guilty in respect of the new information and return to his initial pleas of not guilty, that is, upon the informations previously presented? In considering this question in R v Donna Marie Thompson (1994) 175 LSJS 85, I referred to relevant legal authorities, which shall not be again recited (many of them have here been referred to by counsel), beyond making these observations:
·that, in the exercise of a judicial discretion, the court is empowered to permit the withdrawal of a plea of guilty before sentence, for sufficient reason (McNicholl v Tothill (1988) 47 SASR 134, at 135);
·that an informed and deliberate plea of guilty should be regarded as final, unless the defendant can persuade the judge that a miscarriage of justice would result if he were bound by his plea (R v Clayton (1984) 35 SASR 232, at 234) or that, in the interests of justice, he should not be bound by his considered plea entered after legal advice (Attorney-General v Kitchen and Roberts (1989) 51 SASR 54, at 55) or that it would be desirable, on any ground, that he should be allowed to join issue (R v Roach (1990) 159 LSJS 105).
In this case, I am satisfied that, in pleading guilty on 8 May 2000, the accused made a deliberate and considered decision, upon both legal and paternal advice. In making that decision, however, he had not been informed of the purported application which has subsequently been made by the Director. In that respect, I do not consider that his decision can or should be regarded as an informed decision. Indeed, upon the material presented, I am satisfied that, were the accused to have then been informed or made aware of this prospective, purported application, he would have pleaded not guilty to the 12 offences alleged in the new information.
For these reasons, which I regard as “sufficient”, I am satisfied that the accused has discharged the persuasive burden of proving that, in a sound exercise of discretion and in the interests of justice, he should not be bound by his pleas of guilty entered on 8 May 2000 after legal and paternal advice that day received. Accordingly, the accused will be permitted to withdraw his pleas of guilty.
This decision makes it unnecessary to consider the Director’s purported application pursuant to section 23 of the Sentencing Act. However, were that to be required, to my mind the following much cited passage of Lord Cairns LC in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, at 448 (to which I have recently had occasion to refer in a civil case of estoppel by conduct) is also here apposite:
“if parties who have entered into definite and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”
(My emphasis.)
Were the purported application not to be temporarily stayed, pending the trial or trials of the accused for all of the relevant offences with which he has been charged, then, in my view, an abuse of judicial process would occur. Accordingly, I order that the purported application be temporarily stayed (cf. R v Mohi [2000] SASC 384).

[2000] SADC 149

8 December 2000