R v O'Loughlin - [2008] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v O'LOUGHLIN
[2008] SADC 76
Reasons for Ruling of His Honour Judge Barrett
19 June 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
The applicant sought to withdraw his guilty plea in the Magistrates Court as of right long after his first arraignment in the District Court - allocutus overlooked and not administered - meaning of allocutus. Held: A guilty plea may only be withdrawn without leave before allocutas or before the court has taken action indicating it is proceeding towards sentence.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
The applicant denied the victim was a "family member" pursuant to s 39(1) of the Criminal Law Consoldiation Act - discussion of factors indicating the victim was his de facto wife. Held: the victim was a family member.
Criminal Law Consolidation Act 1935 s 39(1); Summary Procedure Act 1921 s 111; Family Relationships Act 1975 s 11A, referred to.
R v Wilson (Unreported, District Court of South Australia, 4 November 1992, D2670); R v Meo (Unreported, District Court of South Australia, 9 September 1993, D2891); R v Shillingsworth (1985) 1 QdR 537; R v Rear [1965] 2 QB 290; R v Selita (2004) 149 ACrimR 243; Griffiths v The Queen (1997) 137 CLR 293; R v Jerome and McMahon [1964] QdR 595, considered.

R v O'LOUGHLIN
[2008] SADC 76

This case concerns an application for the withdrawal of a guilty plea.
On 30 October 2006, Mr O’Loughlin pleaded guilty in the Mount Gambier Magistrates Court to a charge of assault on a family member. He was committed to this court for sentence. On 5 February 2008, his Counsel, Mr Vadasz, made application to have the guilty plea withdrawn. The principal issues for determination are:
1.Whether, as he claims, the applicant can withdraw his guilty plea without the leave of the court.
2.If the applicant does require the leave of the court, should that leave be granted.
For reasons that will become clear, I will deal with only the first application in these reasons, and also deliver a ruling on one other topic.
Mr O’Loughlin’s application evolved over time. I set out the background of the application.
Background – Magistrates Court
In a Magistrate’s Court Information dated 17 May 2006, the applicant was charged with two counts as follows:
1.On 29 June 2005 at Parafield Gardens in the said state assaulted Diane Taylor, a family member of the applicant – s 39(1) of the Criminal Law Consolidation Act.
2.On 29 June 2005 at Parafield Gardens in the said state had vaginal sexual intercourse with Diane Taylor without her consent – s 48 of the Criminal Law Consolidation Act.
The applicant was arrested on 6 July 2006. The 13 month delay between the alleged offence and the applicant’s arrest had, I am told, nothing to do with the applicant. He was kept in custody for a few days then released on bail. He was represented by a solicitor in the Magistrates Court at his committal on 30 October 2006, and on occasions before that. On 30 October 2006, he pleaded guilty to the assault charge and not guilty to the rape charge. He was committed to the District Court for sentence on the former and for trial on the latter.
Background – District Court
It is necessary to set out the court appointments which followed. On 4 December 2006, the applicant was arraigned in this court and pleaded not guilty to rape. As is customary, the matter was referred to a directions hearing. No mention was made by anyone of the assault charge. No allocutus was administered. The applicant was in court on that day and was represented by Mr Vadasz.
Because he lived in Mount Gambier, the applicant was excused from attendance at the first directions hearing. That occurred on 18 January 2007 and was further adjourned for reasons associated with the rape charge. No mention was made of the assault charge.
The same happened at the second directions hearing on 15 February 2007. The final directions hearing was on 29 March 2007 when the trial date was set for the rape charge. At each of these directions hearings, the applicant was excused from attending. He was represented by either Mr Vadasz or practitioners from his firm. On each occasion, no mention was made of the assault charge. Most particularly, no allocutus was ever given on that charge. The trial began on the appointed date of 19 November 2007. On 28 November 2007, the jury returned a verdict of not guilty on the rape charge.
Course of Trial
During the trial the applicant gave evidence naturally focused on the rape charge. So far as the assault allegation was concerned, he agreed that he had assaulted Ms Taylor and that he had been in a sexual relationship with her. He said that the assault occurred on 26, not 29 June 2005. He had pleaded guilty to the offence having occurred on 29 June. He gave a slightly different version of the facts of the assault than that given by Ms Taylor. I will refer to those differences later. He asserted that his guilty plea to the assault had been entered without adverting to the date on which it was alleged to have occurred. The prosecutor at trial sought to cross-examine the applicant on the circumstances of his plea. The object of the questions was aimed at demonstrating that the applicant had acknowledged by his plea that he had assaulted Ms Taylor on the night of the alleged rape. That would have contradicted his evidence that no violence at all occurred on the night of the alleged rape. His counsel, Mr Vadasz, objected to that cross-examination and I upheld the objection, largely because I regarded the circumstances of the plea as a collateral issue likely to distract the jury from the issue of the rape. It might have involved an inquiry into what legal advice had been given and that may have lead to collateral issues of credit. I mention two other aspects of the trial. Extensive cross-examination of Ms Taylor was directed to establishing that she was at times suicidal and caused herself harm. At a stage in her evidence it looked likely that she would refuse to continue giving evidence. However, she did complete it. The other aspect is that, in my view, the jury might well have had a reasonable doubt about whether she suffered violence on the day alleged by her, viz 29 June, rather than 26 June. For reasons that I need not go into this was a case where the date was critical and I instructed the jury accordingly.
After the Trial
At the end of the trial, after the verdict of not guilty to the rape charge was returned, the question of the assault arose. Due to time constraints it was necessary to adjourn that matter. Mr Vadasz raised two questions:
The first question was that of changing the date of the assault on the Magistrates Court information from 29 June to 26 June.
The second question related to whether Ms Taylor was in fact a family member of the applicant as alleged in the information. Mr Vadasz said he needed to “look at” that question. Nothing was said about a dispute on the facts and nothing was said about withdrawing the plea. The matter was adjourned to 7 December 2007. The applicant was excused from attendance. The object of the adjournment was to fix a further date for submissions on penalty before the end of the year. The prosecutor tendered the antecedent report and Mr Vadasz said its contents were “generally admitted”.
On 7 December 2007, the prosecutor sought to amend the Information to change the date. Mr Vadasz raised the question of remitting the matter to the Mount Gambier Magistrates Court to be dealt with there, although he did not make a specific application in that regard. He foreshadowed that there would be a dispute about whether Ms Taylor was a family member. The matter was adjourned until 13 December 2007 for argument on that topic. The applicant was excused from attendance on that occasion. There was no suggestion of evidence being given on that topic. There was only ever going to be a legal argument based on the evidence at the rape trial.
On 13 December 2007, Mr Vadasz made no application to have the matter remitted to Mount Gambier because he said he had no instructions on that point. The accused lives in the South East of the state. Ms Taylor lives in Adelaide and the assault was committed in Adelaide where they both then lived. He made submissions on the topic of whether Ms Taylor should be regarded as a family member. Mr Vadasz indicated that he did not wish to call evidence on that topic, but wanted me to rule on it relying on the evidence from the trial. I will deliver that ruling later in these reasons. The Victim Impact Statement had been given to Mr Vadasz and he said that, while he had no instructions on it, he did not think there was really anything he could say about it. I indicated that on the adjourned date, I would rule on the “family member” point, hear submissions on penalty, and I would try to sentence on the same day. There was no suggestion by Mr Vadasz that the matter should proceed in any other way. The matter was adjourned until 20 December 2007. I prepared draft sentencing remarks which included a finding that I was satisfied that Ms Taylor was a family member.
On 20 December 2007, there was no appearance by the applicant. Mr Vadasz said that he had left a message for the instructing solicitors about the adjourned date, but had not followed it up. He said the solicitors had not contacted the applicant to advise him of the hearing date. Mr Vadasz said that he was prepared to make the submissions on penalty that day, based upon instructions he had received from the applicant up to the end of the trial, but of course he could not make those submissions in the absence of the applicant. There was no suggestion that the matter would not have proceeded to submissions on penalty and, if possible, sentence on that day, had it not been for the absence of the applicant. Because I was satisfied it was not the fault of the applicant that he was not present, I did not issue a warrant for his arrest. I put the matter off until 14 January 2008.
On 14 January 2008, the applicant did not appear at the appointed time of 9:30am. Mr Vadasz told me that the applicant had been notified of the hearing date. I issued a warrant for his arrest. The court adjourned before 10am. As it transpired, the solicitors had advised the applicant of the appointed date, but not the appointed time. He arrived at 10am. By then, counsel had left and the court could not be reconvened until 10:30am. The Victim Impact Statement was read out in court. The prosecutor sought to amend the date on the Information and suggested it might be appropriate to re-arraign the applicant on the amended Information. I asked Mr Vadasz what I should do procedurally. He said this:
Mr O’Loughlin maintains, on his evidence, that he assaulted her, and that amounts to a common assault. If Your Honour wishes to amend the Information, which is a Magistrates Court Information, to read the date that accords with the evidence, then I have no comment. If Your Honour wishes to re-arraign him, I would advise Mr O’Loughlin to plead not guilty.
Further, he said:
… to make it very clear, there is no dispute with respect that there were acts constituting an assault, but there is a dispute as to the particulars, namely she was a family member.
Mr Vadasz reiterated what he had said on 13 December 2007, namely that he did not seek to call his client to give evidence about the “family member” point. In that respect he was waiting for my ruling. I indicated I would simply amend the particulars of the Information to change the date to conform with the evidence given by the applicant at his trial and I did not have him re-arraigned. Ms Pfitzner for the prosecution tendered a letter from the Department of Correctional Services about the few days that Mr O’Loughlin had spent in custody and Mr Vadasz then resumed his submissions on penalty. He began by asking me to take into account the early plea of guilty to the assault. There then followed the first articulation of any dispute about the facts of the assault itself.
It must be said however that during the trial there was a difference between the applicant and Ms Taylor about details of the actual assault. In the end I do not think those differences are important. The differences drawn to my attention were as follows:
1)Ms Taylor said that she was grabbed by the applicant in the lounge room and swung around so that she hit a table which caused a laceration near her anus. The applicant gave evidence that he pushed her and, as a result, she came into contact with a table presumably resulting in that injury.
2)Ms Taylor said that the applicant punched her 20 times in the vagina. The applicant said it was not as many as 20 times, although he did not nominate how many times it was. He said he did not punch her in the vagina but in the upper body and also in the stomach. A doctor gave evidence at the trial of substantial bruising around Ms Taylor’s vagina.
In my view the slight difference between the two accounts is immaterial. The common ground is that there was punching in the lower body that lead to bruising around the vagina. I mention that so-called dispute because that topic arose at the hearing on 4 February 2008 and took on greater significance. It became the given reason for the proposed withdrawal of the guilty plea. The allotted time ran out on 14 January 2008 and the matter was further adjourned until 4 February 2008. The expectation was that the submissions on penalty would continue. There was no suggestion of a withdrawal of the guilty plea and no suggestion that the accused wished to give evidence on any disputed facts hearing.
When the matter resumed on 4 February 2008, Mr Vadasz said that he would need an adjournment of some minutes to obtain some materials he was expecting from his instructing solicitors. I said I would grant that adjournment, but before that happened, the prosecutor, Ms Pfitzner, enquired what exactly defence counsel proposed doing that day. It appears that she had been told that there might be an application to withdraw the plea and she had come prepared to meet that application. That was the first suggestion I had heard of a withdrawal of the plea. Mr Vadasz said that at that stage he did not have instructions to withdraw the plea, but he wanted to look at the documents coming from his instructors. He said he expected that one of them would be an affidavit which would explain the factual basis upon which the applicant entered his plea of guilty in the Magistrates Court. He reiterated that the applicant did not resile from what he had said in his evidence in the rape trial, and he did not resile from his guilt of the assault, but there was apparently a factual dispute that had to be resolved.
Mr Vadasz was then given permission to leave the court to obtain the material that he was waiting on. When he returned, he made an oral application to withdraw the guilty plea. He said he would not be putting before the court any materials in support of that application. On the other hand, he wanted to call the applicant there and then to give evidence on a disputed facts hearing. Quite reasonably, the prosecutor (who was not counsel at the trial) objected to that course because she had not prepared to cross-examine the applicant. She had come prepared to respond to submissions in mitigation of penalty and, if necessary, to put legal argument in support of an application to withdraw the plea. In any event there was insufficient time for such a hearing. The one and a half hours set aside for the hearing was drawing to a close and so it was decided that both parties would put their arguments on the topic of whether the applicant had a right to withdraw his guilty plea without leave of the court. There was no time to deal with the separate issue of whether leave should be granted if leave was required. That has been put off for another time.
May a defendant withdraw his guilty plea without leave?
I deal now with the submissions made by each party on the question of whether the applicant requires leave of the court to withdraw his guilty plea entered in the Magistrates Court. Does he require leave, as the prosecution contends he does, or may he withdraw his plea as of right as he contends?
I begin by stating what I see to be the relevant factual basis upon which the ruling must be made.
On the charge of assault the applicant was committed to this court for sentence. He had pleaded guilty as charged in the Magistrates Court. On the rape charge he was committed for trial. On his arraignment in this court on 6 December 2006 he pleaded not guilty to the rape charge and the assault charge was overlooked. There appears to be no reference to the assault charge in the transcript of the hearing on that day. Certainly no allocutus was given. The only discussion that day concerned the rape charge. There is no suggestion that there would have been any demur if the presiding judge had, on the arraignment, administered the allocutus in relation to the assault. Many judges simply have the allocutus administered when there has been a guilty plea in the Magistrates Court and a committal for sentence. Others arraign the defendant even if there has been a guilty plea in the Magistrates Court and then, upon a guilty plea, administer the allocutus.
There is every reason to think that if the applicant had been arraigned on the assault charge he would have pleaded guilty. It was not until much later at trial that there was any suggestion about a dispute about the date of the offence. The defendant gave evidence at the trial that he had not thought about the date when he pleaded guilty, notwithstanding that he was represented at the time. The dispute about the assault being on a family member did not arise until after the trial. The dispute about the factual basis of the plea did not arise until during the trial, but that would not affect the plea. On Mr Vadasz’s account he did not have any instructions to withdraw the guilty plea until part way through the hearing on 4 February 2008.
The only legislative provision concerning procedure in the District Court upon a committal for sentence appears in s 111 of the Summary Procedure Act 1921. It reads as follows:
s 111(1) A person who has been committed to a superior court for sentence, may, on appearing before that court, withdraw the admission of guilt and plead not guilty to the charge.
(2) In such a case, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.
(3) The change of plea must not be made the subject of any comment to the jury at a subsequent trial on the charge.
The prosecutor submitted that sub-sections (1) and (2) appear to be concerned with the occasion when the defendant first appears in the superior court.
Ms Pfitzner submitted that s 111 does not give an unlimited automatic right to withdraw the plea at any time in a superior court. She submitted that the section should be read as restricting the exercise of that right to the first appearance in the superior court. She referred to the decision of His Honour Judge Wilson in the matter of R v Wilson, unreported judgment delivered on 4 November 1992 (judgment number D2670). In that case His Honour determined that s 111(1) permitted someone committed for sentence to withdraw the plea of guilty without leave. His Honour noted that the section was not there concerned with the circumstances in which the court may grant leave to withdraw a plea of guilty. His Honour reasoned that if that was the situation contemplated by the section one might expect the wording to be “may … be permitted to withdraw the admission of guilt” or “may … by leave of the court withdraw the admission of guilt” (see page 2.8). In the absence of such words there appears to be an unconditional right in a defendant to withdraw a guilty plea. His Honour did not say anything about whether that right may be exercised after the first appearance by the applicant in court or whether the right no longer existed after the administration of the allocutus.

Ms Pfitzner for the prosecution then referred to an unreported decision of His Honour Judge Lunn in R v Meo delivered on 9 September 1993 (judgment number D2891) referred to on page 75312 of Judge Lunn’s book). That decision is authority for the proposition that leave to withdraw the plea is required once the allocutus has been administered. That decision has the effect of rebutting the proposition that the right to withdraw a plea without the leave of the court may be exercised at any time. Ms Pfitzner submitted that the right may only be exercised at the first appearance and then only before the allocutus is administered. In the present case of course, the allocutus was never administered so Ms Pfitzner turned to the significance of the allocutus. She submitted that if I am against her submission that the right cannot be exercised any time after the first appearance in the superior court then I should not hold that the right only ceases to be operative upon the administration of the allocutus. Ms Pfitzner suggested that in this case, while the allocutus has not been administered, the sentencing submissions are clearly underway. The failure to administer the allocutus was just an oversight. In those circumstances the failure to administer the allocutus is immaterial. Ms Pfitzner took me to cases dealing with the significant of the allocutus. The first was R v Shillingsworth (1985) 1 QdR 537. In that case, Williams J (at page 543) said of the allocutus:
The administering of the allocutus constitutes an acceptance by the court of the jury’s verdict of guilty or the accused’s plea of guilty (as the case may be) and thereafter the matter before the court is one of sentence. … In other words the accused person stands before the court to be sentenced once the court has accepted the guilty verdict or plea by administering the allocutus.
In that case the court held that there was a particular significance in the fact that the allocutus was in fact administered. When administered the defendant was a child and the administration of the allocutus meant, so the court found, that the court was thereby bound to deal with him as a child and could not later determine to deal with him as an adult. Those issues do not arise here. Williams J, however, referred to the English Court of Appeal decisions in R v Rear [1965] 2 QB 290 which documented the history of the allocutus. It originally represented the only opportunity someone convicted of a felony had to raise a point of law upon which he might arrest judgment. That was at a time when an accused was not allowed the benefit of counsel and was not able to give evidence on his own behalf.
The terms of the allocutus once given in courts in South Australia reflect that historic origin:
You have been found guilty by your own confession of [x crime]. Have you anything to say why the sentence of the court should not be passed upon you?
The court in Rear held that, in circumstances such as those obtaining in this case, the allocutus
does not seem to serve any useful purposes today[1].
[1] R v Rear [1965] 2 QB 290 at 295
Further the court observed:
It might be to the public advantage if steps were taken, either to abolish it, or to make it plain that whether in felony or misdemeanor – some misdemeanors are more serious offences than some felonies – the prisoner shall have a right, notwithstanding that counsel has addressed the court in mitigation, to speak again on his own behalf.
That case has a further application to this. In that case the applicant had been convicted in a summary court on his own confession. The court said[2]:
The procedure of a court of summary jurisdiction is regulated by statute which prescribes exactly what cautions and what observations are to be given or made to the prisoner by the court, and the statute makes no provision for anything in the nature of an allocutus.
[2] ibid
That is the position with the Magistrates Court in South Australia.
The court went on:
The jurisdiction of quarter assertions, if magistrates in the exercise of their power commit the prisoner for sentence, is also regulated by statute. It cannot be said that there took place in the court of quarter decisions a trial on indictment in which the common law rule about the allocutus applied. In our opinion there was not in this case any need for the allocutus to be administered. Failure to administer it gives the applicant no right to complain of his sentence.
That too reflects the situation in this case. There was no trial on indictment in the District Court. The guilty plea had been taken in the Magistrates Court and the function of the District Court was to impose penalty.
In R v Selita (2004) 149 ACrimR 243 the South Australian Court of Criminal Appeal held that the failure to administer the allocutus had no effect on the legality of the sentence imposed. Gray J[3] referred to the history of the allocutus and inter alia to the case of Rear. His Honour observed that:
It has been said that the allocutus no longer serves any real purpose[4].
[3] at p 251
[4] R v Selita (2004) 149 ACrimR 243 at 251
However His Honour did not expressly endorse that view, nor did any other member of the court.
It is not apparent to me why the allocutus in its present day terms should be the sole determiner of the point at which a right to withdraw a guilty plea should cease, with leave being required to withdraw it thereafter. Nowadays the allocutus simply says:
… you have been found guilty of the offence of … The court will now hear any evidence and submission about sentence.
In the case of Griffiths v The Queen (1997) 137 CLR 293 the High Court was concerned with the question whether there was a conviction and sentence from which the Attorney-General could appeal and in respect of which the Court of Criminal Appeal had jurisdiction. The court held that there had not been a sentence because the judge had merely adjourned the matter for 12 months to give the applicant an opportunity to demonstrate that he had rehabilitated himself (the so called “Griffiths Remand”). Barwick CJ and Stephen, Jacob and Aikin JJ found however that there had been a conviction by reason of the judge’s manifest acceptance of the guilty plea. There was no mention of an allocutus, but the conduct of the judge in proceeding down the path to sentence amounted to an acceptance of the plea. The court held that while there was a conviction of the applicant the judge had not in fact sentenced him so there was no jurisdiction in the Court of Criminal Appeal to hear the Attorney-General’s purported appeal. Aitkin J said[5]:
It was argued for the applicant that, before there is conviction, the trial judge must use some express words to indicate that situation, such as “I convicted the accused”. I can see no reason why a conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective. If a trial judge imposes a sentence without having uttered some such formula, it would be plain that the accused had been convicted because the pronouncing of the sentence would be inconsistent with any other view.
[5] at p 335
His Honour referred to remarks of Gibbs J (as he then was) sitting in the Supreme Court of Queensland in R v Jerome and McMahon [1964] QldR 595 at 604. His Honour there said that the court might do several things to indicate a determination on the question of guilt.
The court might do that by imposing a punishment; by discharging a prisoner on his own recognisance; by releasing him on parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained.
So far the discussion has been about the court accepting the plea. The High Court in Griffiths also referred to the defendant in that case “adhering to his guilty plea”. That had been demonstrated by evidence being given in the superior court on the plea and by submissions being made.
These authorities lead me to conclude that before sentence can be imposed in the superior court upon a defendant who has pleaded guilty in the Magistrates Court there must be first an adherence by the defendant to the guilty plea and second an acceptance of that plea by the court. Both may be demonstrated by conduct consistent with those matters. The administering of the allocutus is but one way of demonstrating those two elements. But it is not the only way. The allocutus has the advantage of being a recognised formula. It avoids argument about whether other conduct sufficiently evinces an adherence by a defendant to his plea and an acceptance of that plea by the court.
In this case there could hardly be clearer evidence of those two elements.
Several times the applicant’s counsel said that his client maintained his acknowledgement of guilt. At all times after the jury’s verdict on the rape charge the court indicated that it wished to proceed down the path to sentence.
The above discussion clarifies the meaning of s 111 of the Summary Procedure Act. It reinforces the interpretation of sub-section (1) urged by the prosecutor. As indicated the defendant must do something to indicate his adherence to his plea. Any action taken consistent with adherence to the plea will be sufficient. That first appearance in the superior court is in my view, the last opportunity to demonstrate conduct inconsistent with adherence to the plea. Obviously a withdrawal of the plea would accomplish that. That does not require the leave of the court at that stage. I respectfully agree with the reasoning of His Honour Judge Wilson in R v Wilson that the words of s 111(1) suggest a defendant may unilaterally withdraw his plea of guilty. In the absence of an allocutus, conduct consistent with an adherence by the defendant to his guilty plea and consistent with the court’s acceptance of that plea will mean that thereafter the defendant must seek the court’s leave to withdraw the plea. The court has an inherent jurisdiction to grant leave to avoid injustice.
Conclusion
In the circumstances of this case the applicant must seek the court’s leave to withdraw his guilty plea.
Was the complainant a “family member” of the defendant
The applicant pleaded guilty to the common law offence of assault. Section 39(1) of the Criminal Law Consolidation Act provides for the penalty for that offence. If the victim of the assault was a family member of the offender the maximum penalty for the offence was 3 years imprisonment. “Family member” is defined in sub-section (2) to include a spouse. “Spouse” is defined to include “a person of the opposite sex who is co-habiting with the defendant as the ….. wife de facto of the defendant”. There is no definition to assist in the interpretation of “wife de facto”.
Mr Vadasz pointed out that the 2007 legislation replacing the former laws relating to assault deals with this question differently. Section 5AA(1) provides the description and definition of factors which aggravate an offence. Placitum (g) provides that two aggravating factors are that the victim is a spouse or a domestic partner. Section 5 provides that a “spouse” now means a “married partner” and “domestic partner” means a person so defined in the Family Relationships Act 1975. Section 11A of that Act defines “domestic partner” in the following terms:
A person is, on a certain date, the domestic partner of another person if he or she is, on that date, living with that person in a close personal relationship and –
(a) he or she –
(i) has so lived with that other person continuously for a period of 3 years immediately preceding that date;
or
(ii) has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years …
Mr Vadasz submitted that I should adopt the definition of “domestic partner” as the definition of “de facto spouse”. I do not agree with that submission. I do not think those new definitions assist in interpretation of the term “wife de facto” under the repealed act. There is no precept of statutory construction that a definition in later and different legislation should apply to repealed legislation.
I am left, I think, to have regard to the facts of the case to work out whether in common parlance the applicant and Ms Taylor could have been described as having been in a de facto relationship. I agree with Mr Vadasz’s submission that not every sexual relationship could be regarded as a de facto relationship. On the other hand I do not accept that the fact that the relationship was a “shaky” one as Mr Vadasz put it, and that there were occasional periods of separation, detract from what otherwise might be a de facto relationship.
I refer to four passages of the evidence that the accused gave at his trial which bear on this question. In examination in chief at page 299 the accused gave this evidence:
QYou were living in a relationship together with Ms Taylor. Is that right?
AYes.
QMore or less as husband and wife.
AYes.
QAs you said that relationship came to an end on 29 June 2005.
AYes
QIn those about 9 or 10 months did you live with her continuously week in week out.
ACould you repeat that please.
QI will. From the time you moved down from Robe and moved in with her until the time you moved out were you living at her house every night of those 10 months.
ANo.
QDid you live at any other places during that time.
AYes.
QIs there a reason for that.
AYes.
QWhat is that reason.
AArguments.
QArguments with Ms Taylor, is that right.
AYes.
Towards the end of examination in chief the accused gave this further evidence about a note he left for Ms Taylor after she had called the police complaining of rape. He was asked to read out the note.
A“Sorry I left you darling, I still love you always – I will always keep in contact with you. Love Chris. Love you. PTO”
QWhen you turn over what does it say.
A“Love you honey. Always will and don’t forget”.
Q“and don’t forget”. Did you write that.
AYes
QDid you leave it on the coffee table.
AYes
QCan you remember at what stage you wrote that; before you went to work or after you told them at work that you wanted some days off, or can’t you remember.
ACan’t really remember when I wrote that.
QWas it on that day though. Did you write it after you had come back from the BP service station.
Not answered.
QIs it something you wrote after the incident at the BP service station or before.
ABe after BP, yes.
QAfter the BP. Who was it addressed to.
ADianne.
QYou said “Sorry I left”. What did you mean.
AWell, I just had enough of it and it was finished.
QEnough of what.
AOur relationship.
QYou say it was finished.
AYes.
QIs that what the note means.
AYes.
In other parts of his testimony which I will not canvas the applicant spoke of his socialising with Ms Taylor in public. They often went out drinking together.
There are then some passages which concern the assault. They suggest that the applicant behaved in a possessive way towards Ms Taylor and assaulted her out of jealousy, believing she had been out on the Saturday night and early Sunday morning with another man and had brought him home to their place. Around dawn Ms Taylor had come back to the house through the back door and there was a man at the front door. The applicant had gone to the front door and told the man to go away. He then turned to Ms Taylor. At page 309 there was this passage:
QThe bloke has gone. You have turned around with Dianne. I’m asking you in your own words, tell the jury what happened next step by step.
AI said to her “Who’s this”. She said “A friend”. I said “What is his name” and didn’t reply. I kept saying “Who is it” “Where did he come from”. I think she said “I was talking to him at the pub”. I said “Where” “Eureka” I said “What is he doing back here”
QDid anything else happen between you and her.
AYes.
QDid you attack her.
AI pushed her, shoved her.
He was cross-examined on that topic at pages 336 to 337.
QYou were concerned weren’t you because on your version Dianne had been out all night with this person.
AI don’t know if she had been out with that person but she was out all night.
QYes, and at least it seemed to you he’d accused been with her around dawn, hadn’t he.
AYes.
QYou weren’t happy about that, were you.
ANo.
QYou were angry with Ms Taylor, weren’t you, when she came home.
AYes.
QYou loved this woman at the time, didn’t you.
AYes.
QThis woman that you loved, you were angry enough to strike her.
AYes.
QWhat did you do before you got to the bedroom, what did you do to her.
AI pushed her over in the lounge.
Those passages of evidence lead me to conclude that the applicant regarded himself as being in a de facto relationship with Ms Taylor and that he had been in that relationship for about 10 months despite occasional separations. In common parlance I think they would be said to have lived in a de facto relationship. They lived together, they went out together. When he left, the applicant saw himself as leaving a relationship, not just an occasional sexual relationship but a domestic, de facto relationship.
In those circumstances I conclude that Ms Taylor was the applicant’s “wife de facto”. As such she was a family member within the meaning of s 39(1).
Leave to withdraw guilty plea not proceeded with
On 28 February 2008 I handed to the parties a draft judgment concluding with paragraph [58]. The matter was then set down for the applicant to make submissions in support of his application to withdraw his guilty plea. The matter was called on for that purpose on 10 April 2008. On that occasion Mr Vadasz announced that he withdrew the application to set aside the guilty plea and he told me that he and the prosecution had agreed upon the factual basis for the offending. I will not here canvas that basis but the parties proceeded to address me on the question of sentence. On 11 April 2008 I sentenced the defendant to imprisonment for 1 year and 6 months with a non-parole period of 1 year. I suspended that sentence upon him entering into a $500 bond to be of good behaviour for 3 years.