R v Mc Cormack - [2009] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MC CORMACK
[2009] SADC 131
Reasons for Ruling of His Honour Judge Millsteed
25 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Application by defendant to withdraw plea of guilty to offence of taking part in the manufacture of methylamphetamine - defendant contends that he is not guilty of the charge and that he entered his plea due to threats from persons involved in the commission of the offence - defendant further contends that he will suffer financial loss due to proceedings commenced under the Criminal Assets Confiscation Act - application refused.
Controlled Substances Act 1984 s 32 (1)(b); Criminal Law Confiscation Act 2005 s 24, s 74; Correctional Services Act 1982 s 37A, referred to.
Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; Meissner v The Queen (1994-1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Clayton (1984) 35 SASR 232; R v Pugh (2005) 158 A Crim R 302; R v Brooks and Childs (2006) 95 SASR 369; R v Liberti (1991) 55 A Crim R 120; R v Brooks (2007) 96 SASR 478; R v Boag (1994) 73 A Crim R 35; Venning v Police (2001) 216 LSJS 338, considered.

R v MC CORMACK
[2009] SADC 131
Introduction

The defendant, Mark Mc Cormack, pleaded guilty to taking part in the manufacture of methylamphetamine, contrary to s 32 (1) (b) of the Controlled Substances Act 1984 but now applies to withdraw his plea on the following grounds:
·That the plea was not entered out of a consciousness of guilt but due to threats from persons who were involved in the commission of the offence.
·That he is not guilty of the charge.
·That he will suffer a financial loss due to proceedings commenced under the Criminal Assets Confiscation Act 2005 (SA) (“the CAC Act”).
The Director of Public Prosecutions (“the DPP”) has opposed the application.
Factual background
The defendant was the registered proprietor of a residential property at 1 Solandra Court, Modbury North. He purchased the property in 2005 with a substantial loan obtained from St George Bank and lived there with his partner, Sally Hill and his children. It is the case for the prosecution that a few months before the defendant’s arrest, Ms Hill and the children temporarily moved into premises at Oakden. The defendant continued residing at 1 Solandra Court and, with other persons, set up a ‘clandestine methylamphetamine laboratory’ inside the house.
On 22 June 2006 police conducted a covert surveillance on an associate of the defendant, George Hawea. Hawea was observed to catch the Sealink ferry from Kangaroo Island to Cape Jervis and then drive to the defendant’s premises at 1 Solandra Court, arriving there at about 5.30 pm. He parked his car in the street and then entered the house.
At about 6 pm police officers attended the premises. An extension of the…

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 Mc Cormack

Details

AGLC: R v Mc Cormack [2009] SADC 131
Case: [2009] SADC 131
Decision Date: 25 November 2009

CaseChat Overview and Summary

The case of R v Mc Cormack involved a defendant seeking to withdraw his plea of guilty to a charge of participating in the manufacture of methylamphetamine. The application was made in the context of a dispute over the defendant's innocence and his contention that he entered the plea due to threats from individuals involved in the offence. Additionally, the defendant argued that he would suffer financial loss as a result of proceedings initiated under the Criminal Assets Confiscation Act. The court was tasked with determining the validity of the defendant's grounds for withdrawal of his plea and the potential impact of the confiscation proceedings.

The primary legal issue before the court was whether the defendant's application to withdraw his guilty plea was justified. This required an examination of the defendant's assertions that he was not guilty of the charge and that his plea was the result of duress or coercion. The court also needed to consider the impact of the confiscation proceedings on the defendant's financial situation and whether these proceedings should influence the decision on the plea withdrawal. The court's analysis needed to balance the defendant's right to challenge his conviction against the principles of finality and the public interest in the expeditious resolution of criminal cases.

In assessing the defendant's application, the court examined the evidence and circumstances surrounding the plea and the alleged threats. The court found that the defendant had not provided sufficient evidence to substantiate his claims of duress or coercion, and therefore, the application to withdraw the plea was not well founded. The court also noted that the confiscation proceedings were separate from the criminal case and did not warrant interference with the plea withdrawal decision. Consequently, the court dismissed the defendant's application to withdraw his guilty plea. The court's decision upheld the integrity of the plea process and maintained the finality of the criminal proceedings.

Orders