R v Rap No. DCCRM-02-736 - [2004] SADC 61

R v RAP
[2004] SADC 61
Judge 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…

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.

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Details

Case: [2004] SADC 61
Decision Date: 16 April 2004

CaseChat Overview and Summary

The applicant, RAP, has applied for his pleas of guilty to four counts of unlawful sexual intercourse to be vacated. The applicant had pleaded guilty in the Magistrates Court to four counts of sexual intercourse with his three year old daughter, contrary to section 49(1) of the Criminal Law Consolidation Act, 1935. The applicant sought to vacate his pleas on the grounds that they were not in accordance with the legal advice given to him, that there was not a strong Crown case, that he was suffering from depression at the relevant time, and that the documentary evidence supplied by the prosecution did not disclose a case to answer. The Crown opposed the application. The primary legal issue was whether the applicant should be permitted to vacate his pleas of guilty. The court considered the circumstances in which the applicant had pleaded guilty, including that he had acted against the consistent legal advice of his solicitor, that he had been suffering from depression, and that he had been threatened and abused by prisoners in gaol. The court found that the applicant had made an informed and deliberate decision to plead guilty, but that the combination of factors at the time led him to enter pleas of guilty against legal advice. The court concluded that the applicant had 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. The court granted the application and vacated the applicant's pleas of guilty.

Orders