R v Lomax - [2019] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LOMAX
[2019] SADC 68
Reasons for Decision of Her Honour Judge Schammer
29 May 2019
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The accused was charged with two counts of trafficking in a controlled drug.
At arraignment, he entered pleas of not guilty to both counts and the action was listed for trial.
At court, shortly prior to a Directions Hearing on 17 October 2018, the accused conferred with his solicitor with respect to an offer of resolution that had been conveyed by the prosecution. The prosecution had advised that they would agree to a plea of guilty on both counts on the Information on an agreed factual basis that some of the drugs found in the accused’s possession were for personal use, but that a small amount of the methylamphetamine (being the subject of count 1) and a small amount of the cannabis (being the subject of count 2) were destined for sale. The precise words used by the accused’s solicitor during this conversation with the accused are the subject of dispute.
The accused subsequently signed a copy of the Information indicating his intention to plead guilty to both counts. He claims he did so because he understood, having regard to the words used by his solicitor in the conversation, that he was not pleading guilty, in each instance, to the offence of trafficking, but rather to the lesser offence of possession of a controlled drug.
On 15 November 2018 the accused attended at his solicitor’s offence and informed him that he wished to change his plea of guilty to both counts to a plea of not guilty.
On 3 March 2019 the accused filed an application seeking permission to withdraw his guilty pleas on both counts, as, inter alia, the pleas had resulted from a mistake, misunderstanding or misapprehension on his part and that it would result in a miscarriage of justice if the pleas were allowed to stand.
Held:
1. At the time the accused entered guilty pleas to both counts on the Information he misunderstood the effect of agreeing to the proposal as put by the prosecution, and mistakenly believed that he was pleading guilty, in each instance, to the lesser count of possession of a controlled drug.
2. The Court exercises its discretion to permit the accused to withdraw his guilty plea to both counts.
Controlled Substances Act 1984 (SA) s 32(3), 32(5), referred to.
Meissner v The Queen (1995) 184 CLR 132; R v Sagiv (1986) 22 A Crim R 73; R v Davies (1993) 19 MVR 481; R v Clayton (1984) 35 SASR 232, discussed.
R v Liberti (1991) 55 A Crim R 120; R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; R v Simmons [2017] SASCFC 49; Weston (a pseudonym) v The Queen [2015] VSCA 354; R v Chiron [1980] 1…

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 Lomax

Details

AGLC: R v Lomax [2019] SADC 68
Case: [2019] SADC 68
Decision Date: 29 May 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Lomax involved the defendant, Lomax, who was charged with a criminal offence. The primary issue before the court was the propriety of the withdrawal and subsequent restoration of a plea of guilty. The defendant initially pleaded guilty to the offence but later sought to withdraw the plea, which the prosecution opposed. The court was required to determine whether the withdrawal of the plea was justified under the circumstances and if the restoration of the plea was permissible.

The court examined the principles governing the withdrawal and restoration of guilty pleas, considering the discretion afforded to the court under the relevant provisions of the Criminal Procedure Act. It assessed the factors that should be taken into account when deciding whether to allow a plea of guilty to be withdrawn, such as the timing of the withdrawal, the reasons for the withdrawal, and the impact on the administration of justice. Additionally, the court evaluated the appropriateness of restoring the plea of guilty after it had been withdrawn.

Upon reviewing the evidence and the arguments presented, the court concluded that the defendant's request to withdraw the plea of guilty was not justified, given the late timing and lack of compelling reasons. However, considering the overall fairness and the defendant's cooperation, the court decided to restore the plea of guilty. The court held that while the withdrawal of a plea of guilty should not be allowed lightly, the restoration could be appropriate under certain conditions to ensure justice is served. The final orders of the court reinstated the plea of guilty, and the case proceeded to sentencing.

Orders