R v Rap No. DCCRM-02-736
[2004] SADC 61
•16 April 2004
R v RAP
[2004] SADC 61Judge Bishop
Criminal
RAP (“the applicant”) has made application for his pleas of guilty to four counts of unlawful sexual intercourse be vacated. To understand the application, it is necessary to relate the protracted historical background.
Background
On 14 February 2002, the applicant was arrested by police officers and charged with four offences of sexual intercourse with his three year old daughter on four separate occasions between 26 April 2001 and 15 July 2001: contrary to section 49(1) of the Criminal Law Consolidation Act, 1935. On 15 February 2002, when he was represented by Mr John Kyrimis, a legal practitioner, the applicant appeared before the Mount Gambier Magistrates Court and it was ordered that he answer the charges on 9 May 2002, that a bail enquiry report be prepared and that he be remanded in custody. On 22 February 2001, the bail enquiry report was received; bail was opposed and refused. On 4 April 2002, there was a further remand and it was noted that, “(It is unlikely that the charges will be answered on 9/5/02 as further decs still to be obtained and pros. is seeking advice from DPP)”. On 9 May 2002, Mr Kyrimis acknowledged the receipt of further declarations and the prosecution confirmed that all declarations had been filed. On 17 May 2002, Mr Kyrimis again appeared for the applicant and there was a further remand to 9 July 2002, “to answer charge”. On 9 July 2002, when the applicant was represented by Mr Herman Bersee, a legal practitioner, Mr Bersee conceded that there was a case to answer, the applicant pleaded guilty “to all counts” and was committed to this court sitting in Mount Gambier on 4 November 2002 for sentence.
When the case was first called on before me on 4 November 2002 in Mount Gambier “for mention only”, Mr Kyrimis appeared for the applicant who was not present. Mr Kyrimis explained that the applicant was then in Adelaide attending an appointment to obtain a psychiatric report which was to be presented for sentencing purposes. Mr Kyrimis confirmed that pleas had been entered in the Magistrates Court and indicated that there may also be a plea to a matter then in the Magistrates Court. Anticipating that the psychiatric report may not be received “during the lifetime of this circuit”, Mr Kyrimis said that it may be necessary for him to come to Adelaide, “to get rid of the matter. I think I would like to see it disposed of before the end of the year.” On 7 November 2002, when the case was again ‘mentioned’, Mr Kyrimis said, in the presence of the applicant, that the psychiatric report was still awaited. That remained the position on 18 November 2002, when Mr Kyrimis told the court,
“I am not in a position to proceed with submissions today. The report that I am seeking is not available. These are serious matters. [The applicant] has pleaded guilty in the Magistrates Court to four counts of unlawful sexual intercourse. I think it is a matter where the court will want to look at a report of a psychiatric nature, given the matters raised in the declarations.
I am seeking the matter be remanded for sometime to enable that to take place. That can be remanded to a date in Adelaide, if that is suitable to your Honour. I have spoken to my client about that and he understands what is going on. He is obviously wanting me to do a complete job rather than a rush job. It is not a case where his immediate liberty is at stake. It is a position where he will do some time in custody, I won’t shy away from that. I don’t think it will present a problem. Perhaps the allocutus can be read to keep the matter moving.”
At Mr Kyrimis’ request, the allocutus was administered. I then expressed concern at inconsistencies which appeared in records of interview between police and the mother [J] of the child who was the subject of these offences. Mr Christopher Weir, counsel for the Crown, indicated that he shared those concerns and would have further discussions with Mr Kyrimis as to the factual basis in relation to each offence. Mr Weir also indicated that, “an issue concerning s.23 of the Criminal Law (Sentencing) Act ... might be something that the Crown could consider in the interim.” Mr Kyrimis said that he was aware of that provision which, he thought, was “an issue that probably does need to be addressed in one way or another.”
Pursuant to section 23(2) of the 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. Section 23 provides that where the Supreme Court is satisfied, upon medical reports, that a defendant is incapable of controlling his sexual instincts, that court may declare accordingly and direct that the defendant be detained in custody until further order.
On 18 November 2002 the case was remanded to Adelaide for submissions on a date to be fixed after a psychiatric report or reports had been obtained by Mr Kyrimis. There was a lengthy delay in that report being obtained. After enquiry by the court, Mr Kyrimis wrote to the court on 2 June 2003,
“There has [sic] been considerable difficulties in obtaining a psychiatric report for my client. However, I have made arrangements for a psychiatrist to see my client in the Mount Gambier Gaol in the week commencing 16th June 2003. He will then require a further two weeks to prepare and supply the report.
As a result the earliest time that I could make sentencing submissions would be in the week commencing 7th July 2003. I request therefore that this matter be set down for sentencing submissions to be heard at some date after the 7th July 2003.”
Upon receipt of that letter, I directed that the case be listed for submissions on 15 July 2003.
On 15 July 2003, Ms Emily Telfer appeared for the Crown and Mr Kyrimis for the applicant. There were received, by consent, an antecedent report relating to the applicant, a purported victim impact statement prepared by a psychologist (who had been assisting the victim of these offences) and a psychiatric report upon the applicant which was obtained by Mr Kyrimis from Dr Nambiar and dated 4 July 2003. Ms Telfer then raised the question of section 23, which had been mentioned by Mr Weir in Mount Gambier. She asked me to consider remanding the applicant to appear for sentence before the Supreme Court, pursuant to section 23 of the Sentencing Act, in reliance upon matters appearing in the applicant’s antecedent report and Dr Nambiar’s report, which had not specifically addressed that section. After discussion with counsel about the emerging position and the then recent decision of Perry J in R v Wood [2003] SASC 213 (reasons for decision published on 10 July 2003, in a case which I had previously referred to the Supreme Court pursuant to section 23), the matter was remanded until 22 August 2003, to give counsel further time to consider the position.
On 22 August 2003, the matter was again called on “for mention only”. Ms Ferris appeared for the applicant, who had been excused from attending. Further information relating to his antecedents had previously been provided by the Crown to his solicitor, Mr Kyrimis. Ms Ferris indicated that a further report from Dr Nambiar would be available at the end of September 2003. (The applicant was then being held in the Mount Gambier Gaol, where Dr Nambiar was to visit him early in September 2003.) For the Crown, Ms Telfer indicated that, upon perusal of material received from interstate concerning the applicant’s antecedents, the question of a section 23 remand to the Supreme Court would be pursued. Ms Ferris also indicated that, on instructions of the applicant’s solicitor, Mr Nicholas Vadasz would be appearing as counsel. The matter was further remanded to a date to be fixed in mid-November 2003, after the supplementary medical material had been obtained and my return from leave.
On 20 November 2003, when the matter was again called on, Ms Telfer appeared for the Crown and Mr Vadasz for the applicant, who again was not present. Ms Telfer confirmed that the Crown would be asking me to consider remanding the applicant to the Supreme Court pursuant to section 23. Mr Vadasz indicated that such a proposal would be opposed. Upon the applicant then being brought into court, I informed him of what had been said in his absence and of the Crown’s proposal. I also told him,
“If I do not accede to [the proposal], then of course we’ll have to fix another date convenient to Mr Vadasz and the Crown for the submissions to be heard; so the process is, most unfortunately for you, taking a long time. I think it must now be a year since I first met you on circuit down in Mt Gambier. Of course, much of this year has been devoted to awaiting the psychiatric reports or report which had to be obtained on your behalf; we now have that and now we are moving on to the next stage. I apologise that it is taking so long but it is beyond my control in that regard. I’ve tried to ensure we get to it as soon as possible.”
The matter was remanded to 11 December 2003, allowing an hour for submissions upon the Crown’s proposal. However, because of the unavailability then of Mr Vadasz, the matter could not resume until 2 February 2004.
On 2 February 2004, Ms Telfer, Mr Vadasz and the applicant attended. Dr Nambiar’s second report of 10 October 2003 had been forwarded to the court in November 2003. Ms Telfer had also forwarded a document entitled “References to evidence in support of charges”. The two records of interview between J and the police (based upon what she had written in her diary) indicated inconsistencies, discrepancies and retractions in what she had said occurred in the commission of these four offences. Notwithstanding those inconsistencies, discrepancies and retractions, Ms. Telfer submitted that the applicant had pleaded guilty to these offences. Upon my enquiring as to the basis upon which the applicant should be sentenced, Ms Telfer replied (T6), “on the basis that he tried to put his penis in, there wasn’t full penetration, but there was penetration.” I remarked (T14),
“This is a very serious matter and it seems to me that if I am to entertain a reference under s. 23, the basis on which it is to be considered should well and truly be established before I do so. At the moment it seems to me it has not been established ... it could be that the form of the charges as admitted to is deficient but with discussions there might be some possibility of agreement on something, I don’t know.”
Mr Vadasz said that the matter was not ready to go to the Supreme Court and that a disputed facts hearing may be necessary. Ms Telfer conceded that the Crown case relied upon the interviews with J and the applicant’s pleas of guilty. She also said (T15),
“There is nothing coming from [the applicant] that suggests he wants to change his mind, despite my friend’s suggestion that he might want to change his mind. ... He was in custody for 5 months before he pleaded guilty in the Magistrates Court. So you can hardly suggest it’s in the rush of trying to get things over with. He had five months to think it through.”
Upon the united request of counsel, the matter was again remanded to enable further instructions to be taken.
On 12 February 2004, in the absence of the applicant, Mr Vadasz indicated that his instructions were to make application to vacate the pleas of guilty. Notice of that application was noted and the formal application awaited.
The application
By application dated 19 February 2004 (five days after the second anniversary of when the applicant was arrested), Mr Kyrimis made application for the applicant that his pleas of guilty be vacated upon the grounds that:
·his pleas of guilty were not in accordance with the legal advice given to the applicant;
·there is not a strong Crown case;
·the applicant was suffering from depression at the relevant time; and
·such further grounds as will be supplied by counsel before the hearing of the application
Grounds orally added on 5 March 2004 included that:
·the documentary evidence supplied by the prosecution in support of the charges did not disclose a case to answer; and
·that documentary material was not adequate to support a conviction on the charges.
In support of the application, affidavits of Mr Kyrimis, Mr Bersee and the applicant were tendered. The applicant also gave oral evidence.
The application (which was opposed by the Crown) was heard on 30 March 2004 and 2 April 2004. Although counsel for the Crown, Ms Sandra McDonald, submitted (T34) that the applicant could be subjected to ‘cross-examination relevant to the issues before the court’, I indicated (T38) that, in the exercise of my discretion (and in application of considerations referred to in DeClercq v The Queen [1969] Can Crim Cases 197; 70 DLR (2nd) 530; and R v Toomey and Frost [1969] Tas SR 99, per Neasey J), cross-examination at large would not be permitted (cf R v Hammond [1941] 3 All ER 318; R v Wright [1969] SASR 256; Wong Kam-Ming v The Queen [1980] AC 247; and MacPherson v The Queen (1981) 147 CLR 512, at 523-524). As a legal practitioner and an employee of Mr Bersee, Mr Kyrimis had the conduct of this matter for the applicant, whom he first saw in February 2002 when the applicant had been charged with these offences. Until early June 2002, Mr Kyrimis had often attended on the applicant, whose instructions were always consistent with pleas of not guilty. At Magistrates Court hearings upon bail, Mr Kyrimis had told the court that the charges would be contested and had submitted that the Crown case was not strong. Consistently, his advice to the applicant had been to that effect. While he advised the applicant as to discount upon pleas of guilty, he did not advise him to enter such pleas. Mr Kyrimis married on 8 June 2002. He was away on his honeymoon on 9 July 2002, when the applicant pleaded guilty to those offences. When he returned to work later in July 2002, Mr Kyrimis was told what had happened. He accepted the applicant’s decision “at face value”. He did not question the applicant as to his reasons for those pleas and did not raise with him any question of withdrawing those pleas.
Mr Bersee appeared for the applicant at the Mount Gambier Magistrates Court on 9 July 2002, in the absence of Mr Kyrimis. He spoke with the applicant and asked him how he wished to plead. The applicant said that he wanted to plead guilty. The applicant did not seek any advice in relation to the allegations. Mr Bersee did not provide him with any specific advice, other than indicate that the charges appeared to be very serious and that he could expect a lengthy term of imprisonment. The applicant said that he just wanted the proceedings finished. He appeared to accept that he would be required to serve a sentence of imprisonment. Mr Bersee did not provide the applicant with advice about the allegations, their evidentiary nature or the legal issues involved. He told the court that the applicant wanted to plead guilty. The applicant did so and was committed to this court for sentence.
In the applicant’s affidavit of 17 February 2004, upon legal advice obtained from the Legal Aid hotline in Adelaide, when arrested and charged with these offences, he did not answer any questions. He later instructed Mr Kyrimis to act for him. Mr Kyrimis advised him that he should plead not guilty and said that he felt there was insufficient evidence to support the charges. Mr Bersee also advised him to plead not guilty. (In that respect, the applicant is not supported by Mr Bersee’s affidavit.) When he appeared in the Mount Gambier Magistrates Court and the charges were read to him on 9 July 2002, in the presence of Mr Bersee, the applicant decided to plead guilty and did so, against previous legal advice. The reasons for which the applicant then pleaded guilty were because J (his de-facto wife) had told him to plead guilty to protect her, because he felt extremely depressed and was that day confused in court, because the courtroom was full of persons (including J, his mother and parents with children in their arms) and because he had been threatened and abused (verbally and physically) by prisoners in the Mount Gambier Gaol. He also believed that abuse could recur, because a person connected with J’s family was then in custody and causing him problems. He denied the allegations relating to each of the four offences to which he had pleaded guilty.
In giving sworn evidence on the voir dire, the applicant elaborated upon what was contained in his affidavit. He and J had five children, one of whom had previously died. He explained (with my emphasis) the reasons for which, contrary to previous legal advice, he had pleaded guilty on 9 July 2002: (T42-43):
“One, was [J], my partner at the time, hadn’t visited me for the past five months after that stage. She still was after that but she came in and told me straight that the police and the prosecution had spoken to her and told her that if [the applicant] pleads guilty to the full course of USI, he will only get two and a half, at the bottom. Now, [J] came in to tell me that, because she was still part of it at the time, and that can be confirmed by the prison as there is a huge number of phone calls and visits we had. She said to me ‘[the applicant], do it for me and do it for the kids. I don’t want to get in trouble with the police, I don’t want to go to the court’, she said, ‘I don’t want to be a witness. You can’t do that to the kids’. Well, at that stage, after being threatened by X amount of prisoners at the prison, which I can name when I have to, I had had enough, I said ‘All right, I love you so much, I love the kids that much that, yes, I will go up there and plead guilty’ because I knew that Mr Kyrimis had actually taken off. I didn’t know where he was, I didn’t know who was going to represent me. I just went into that court virtually blind, and on that day when I was in there, there was about 20 to 25 people in that courtroom waiting to be seen by the judge, and [J] was there with my mum, there was a huge array of people standing around with their kids in their arms and the madam prosecutor at the time, she turned around and said what I was charged for and started to say what it actually entailed. The judge stopped her and then the charges were read out one by one, you know, one count, then the second count, and I pleaded to each. So, that day was the worst day of my life.”
The applicant said, in evidence, that he did not subsequently discuss with Mr Kyrimis the question of withdrawing his pleas of guilty. He assumed that, once he had pleaded guilty, “that was it” (T45). He had not realised until this year (on 2 February 2004), in this court, that he could make an application to withdraw his pleas of guilty (T45). He said that it had taken him two years to understand what was going on (T59). There were lengthy periods of time when he did not see Mr Kyrimis (T59). He said that he had told Mr Kyrimis that he was not guilty and had explained to him why he had pleaded guilty (T61). He recalled the discussion in court (on 2 February 2004) about section 23 and said (with my emphasis) (T63),
“Now that was a joke. That I really was annoyed with. One minute I got told to plead guilty by the witness that you say is your witness, because youse told her that I would only get two years on the bottom and no such thing as a s.23; I thought, ‘What a joke’. Now you’re trying to slap me with something heavier. Thank you.”
Ms McDonald then asked the applicant (T64),
“Q. Is that the reason why you tried to change your plea.”
“A.No, that’s not why I tried to change my plea. I know the truth. You can’t handle the truth. You don’t want the truth. You want me to tell you point-blank? I told his Honour; I made a mistake by pleading guilty because I thought I was protecting [J] from you, Ms Prosecutor, from you from prosecuting her because you told her that. You haven’t charged her, she hasn’t admitted to a crime and she is still running around. You answer me that. You want to go further into this, I will go further into the whole case and I’ll ruin you because you’ve got the evidence there about her. You’ve let her run around Mount Gambier. I get victimised in gaol. What do you want me to do? Say ‘Yes, I did it’ just for the hell to make you happy, which I did, get two and a half on bottom which I was supposed to get down the track. You say ‘We’ll give you a s.23’ and, two years later one month you say ‘Let’s give him 20 years in prison’ now. What do you want me to say? I’m not going to tell you I did it when I didn’t. I’m not going to do that any more. I’ve had it.”
In re-examination, the applicant repeated (T70-71) that he had indicated a desire to revert to his pleas of not guilty after hearing remarks which had been made by me on 2 February 2004, when Mr Vadasz was representing him. He continued (T71),
“it was also the fact that I found out the time I was actually looking at from other people in prison that was coming into prison being sentenced. That scared the hell out of me when I knew I wasn’t guilty. So, yes, I changed because I was promised two and a half on the bottom. That’s why I said ‘Yes’. I didn’t know nothing about s. 23 at the time and I didn’t know I was looking at eight or 10 years on the bottom.”
Other evidence
In the Bail Enquiry Report of 21 February 2002, the Case Management Consultant reported that the applicant did appear depressed and did express fears about threats to his personal safety, mainly related to J’s father. Since then, bail has been consistently refused.
The first psychiatric report of Dr Nambiar (dated 4 July 2003 – about a year after the applicant pleaded guilty to these offences) reported that the applicant’s prison medical file confirmed that anti-depressant medication had been prescribed by the visiting general medical practitioner. Upon interviewing the applicant, Dr Nambiar reported that he had said that he believed J and her father “somehow planned to coerce him into sex offending in order to have him eventually arrested” and he felt they were ganging-up against him. In relation to these offences, Dr Nambiar reported (with my emphasis),
“There appear to be many contradictions and I understand it is not my place to question the facts as this is a matter for the courts. Nonetheless, in listening to your client’s description of what has occurred and comparing this to what has been stated in the witness statements, it would appear that there are a number of discrepancies and that there may well be a degree of dishonesty and deception from both parties, namely your client and that of his defacto and the truth maybe somewhere in between. Nonetheless, your client appears to accept some responsibility and hence plans to plead guilty and yet keeps on referring to being coerced, forced, to behave in this way and also refers to the fact that he feels vulnerable as a result of his chaotic and abusive upbringing.”
Dr Nambiar continued,
Rather than depressive ruminations he appears to have more angry ruminations with the focus of externalising blame. It would appear that he feels he is a victim of some form of bizarre plan to coerce him into offending in order to precipitate his arrest and incarceration .... I am inclined to believe that he has been involved in an abnormal relationship with his de-facto and her family and that although his perception of what has occurred may be somewhat distorted, it is not entirely irrational or psychotic.”
Dr Nambiar thought that the applicant’s depression was more an adjustment to his predicament than a clinical major depression. He also reported that, just before his arrest, the applicant saw his general medical practitioner and was prescribed anti-depressant medication. That medication was recommenced after he was arrested. Dr Nambiar concluded his first report by remarking on ‘an interesting paradox’, that the applicant had chosen to plead guilty and yet, at the same time, denied that he was responsible for his actions. He thought that probably reflected his disturbed personality and distorted concepts of responsibility for his actions.
In his second report of 10 October 2003, Dr Nambiar specifically addressed section 23, at the request of Mr Kyrimis. In his opinion, there was very little to support an argument that the applicant was unable to control his sexual instincts. Regarding these offences, Dr Nambiar reported that the applicant had said that it was J who was sexually abusing their child and that she was purposefully “testing” him all the time. Dr Nambiar continued,
“He virtually indicated that in some distorted form of logic, that J forced him to have sex with his daughter in order to prove his love for J. Further to this, and equally as bizarre, your client claims that he went through the motions of digitally raping his daughter in order to then prove to J that this behaviour did not arouse him and, therefore, disprove her theory.”
He also reported that the applicant claimed “to feel extremely remorseful about his behaviour, ashamed and angry with J and continues to blame J’s father for her behaviour and his poor upbringing for his own behaviour.” Upon these offences, Dr Nambiar concluded,
“Your client has made full and frank admission in regards to his behaviour and as a result has pleaded guilty and is prepared to accept the consequences of his actions in the form of a penalty as it is imposed by the Court.”
Subsequently, as previously related, the applicant has denied that he committed these offences.
The contentions
For the applicant, Mr Vadasz contended that:
·by pleading guilty on 9 July 2002, when Mr Kyrimis was away on his honeymoon, the applicant acted against the consistent legal advice of his solicitor;
·he pleaded guilty because he was then depressed, because of what J had said to him and because of his treatment by prisoners in gaol;
·his state of mind had a significant effect upon him entering pleas of guilty against legal advice and without discussion with his legal advisers;
·in these circumstances, it is in the interests of justice that the applicant be permitted to change his pleas of guilty to those of not guilty, particularly where, absent guilty pleas, there is not adequate material to find a case to answer; and
·the committal process was a nullity because of the failure to comply with the provisions of section 104(3) of the Summary Procedure Act, which require that statements filed in a Magistrates Court be verified by declarations in the form prescribed by the Magistrates Court Rules.
For the Crown, Ms McDonald contended:
·that the applicant’s pleas of guilty were against legal advice was irrelevant, the issue being whether he had received legal advice, not whether he chose to accept that advice;
·the fact that there was not a strong Crown case was irrelevant;
·that the applicant was suffering from depression at the time of entering his pleas of guilty may be relevant, but there was very little evidence to substantiate that position;
·whether the documentary material did not disclose a case to answer, or was not adequate to support a conviction, was irrelevant; and
·whether the committal was a nullity was irrelevant because the provisions of the Summary Procedure Act had been complied with, particularly section 105(2)(c)(i), which was applicable where a defendant has admitted the charges.
The law
The relevant legal principles are neither complicated nor controversial. The legal authorities to which I referred in R v Donna Marie Thompson (1994) 175 LSJS 85 shall not again be recited, beyond repeating what I said in R v England (No. 2) [2000] SADC 149 (reasons for ruling delivered, but not published, on 8 December 2000 – those reasons can, and shall, now be published):
—that, in the exercise of a judicial discretion, the court is empowered for sufficient reason to permit the withdrawal of a plea of guilty before sentence (McNicholl v Tothill [1988] 47 SASR 134, at 135); and
—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 England’s case (supra), the accused changed his pleas from not guilty of numerous serious offences to guilty after negotiations with the Crown to the effect that the Crown would not proceed with other alleged offences and would not oppose full credit being given for his belated pleas, but the accused was not informed or aware that the Crown would subsequently make ‘purported’ application under section 23. In those circumstances, I permitted the accused to change his pleas of guilty and revert to pleas of not guilty. (I apologise to counsel for not having referred to that decision, the existence of which had been forgotten until formulating these reasons.) As White J observed in Attorney-General v Kitchen and Roberts (supra, at 55), an informed and deliberate plea means a plea entered after legal advice.
The findings
Upon the material presented, I am satisfied that, in pleading guilty on 9 July 2002, the accused made an informed and deliberate decision after having previously received contrary legal advice. When making that decision, however, the applicant was suffering from depression; he had been in gaol for five months; his solicitor (Mr Kyrimis) had gone away on his honeymoon; he was persuaded to plead guilty by what J had told him the police had told her would happen if he pleaded guilty; he had been threatened with violence in gaol; he had not made any admissions to investigating officers; and he was not aware of, nor had he been advised about, the possible applicability to him of section 23. Were it not for the combination of those reasons, I am satisfied that the applicant would have maintained his original pleas of not guilty to these alleged offences.
For these reasons, which I regard as “sufficient”, I am satisfied that the applicant 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 9 July 2002 in the absence of Mr Kyrimis. Accordingly, he will be permitted to vacate or withdraw those pleas of guilty. In the words of White J in Attorney-General v Kitchen and Roberts (supra, at 56), in my view the applicant is entitled to his day in court.
This decision makes it unnecessary to consider the other contentions of counsel. However, I do express the opinion that the procedural requirements of the Summary Procedure Act were here complied with; and that the absence of evidence sufficient to convict a defendant is a circumstance which warrants exercise of the discretion to permit a change of plea (see Marchando (2000) 110 A Crim R 337, at 338).
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