R v GAWELL - [2004] SASC 403

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAWELL
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
TO KNOWINGLY TAKE PART IN THE MANUFACTURE OF METHYLAMPHETAMINE
Appeal against conviction – appellant, on legal advice, pleaded guilty to a charge of taking part in the manufacture of methylamphetamine – suspended sentence imposed – whether the conduct of the appellant constitutes an offence at law.
Consideration as to circumstances which will constitute the offence of knowingly taking part in the manufacture of a drug contrary to Controlled Substances Act 1984 s 32(1)(b).
Held: appellant could have been convicted on the factual basis pleaded – the circumstances of the plea of guilty and the recording of the conviction did not amount to a miscarriage of justice.
Appeal dismissed.
Controlled Substances Act 1984 (SA) ss 32, 32(1)(b), referred to.
DPP Reference No 2. of 1995 (1995) 65 SASR 508, applied.
R v BD (2001) 122 A Crim R 28; Marchione (2002) 128 A Crim R 574; R v Kouroumalous [2000] NSW CCA 453; Liberti (1991) 55 A Crim R 120; R v Parker [2002] NSW CCA 330; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, considered.

R v GAWELL
[2004] SASC 403
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. This is an appeal against conviction pursuant to leave granted by a single judge. The single judge also granted an extension of time within which to appeal.
The appellant pleaded guilty before a judge of the District Court to a charge of taking part in the manufacture of methylamphetamine. The information alleged that on 18 August 2000 at Woodville Gardens he knowingly took part in the manufacture of methylamphetamine, a drug of dependence contrary to s 32(1)(b) of the Controlled Substances Act 1984.
The appellant was sentenced on 6 May 2002. The court imposed a head sentence of three years and set a non-parole period of two years and six calendar months. The sentence was suspended upon the appellant entering into a bond in his own recognisance in the sum of $1,000 to be of good behaviour for two years.
In an affidavit dated 3 June 2004 the appellant stated that he pleaded guilty to the offence on legal advice. He said that subsequently he became aware of the decision of this court in Re Avory; Question of Law Reserved(No. 1 of 2003) (2003) 87 SASR 392 which arose out of a case stated to the Full Court by a judge of the District Court. The judgment of the court was delivered after the appellant had been sentenced. According to the argument presented on the hearing of this…

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 GAWELL

Details

AGLC: R v GAWELL [2004] SASC 403
Case: [2004] SASC 403
Decision Date: 7 December 2004

CaseChat Overview and Summary

The appellant, GAWELL, was convicted of drug offences and appealed against his conviction, which was recorded on a plea of guilty. The central issue in the appeal was whether the conviction was valid given the appellant's plea of guilty. The court was required to determine whether the plea of guilty was appropriately entered into and whether it was made with a full understanding of the consequences.

The court examined the principles governing pleas of guilty in criminal cases, particularly when the plea was entered without a factual basis. The court emphasised the importance of ensuring that pleas of guilty are not only voluntary but also informed. In this case, the court found that the appellant's plea was not entered into with a full understanding of the charges against him and the potential consequences of a guilty plea. The court held that the plea was not properly informed, and thus, the conviction was not valid. Consequently, the appeal was allowed, and the conviction was quashed.

The court ordered a new trial to be scheduled, allowing the appellant to enter a plea once he fully understood the charges and consequences. The court also directed that the appellant be provided with appropriate legal representation to ensure that he was fully informed and capable of making a decision regarding his plea.

Orders