R v Richards - [2014] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2014] SADC 43
Judgment of His Honour Judge Slattery
19 March 2014
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The applicant sought to set aside guilty plea to aggravated communicating with a child for a prurient purpose on the grounds, inter alia, that he entered the plea due to the failure of his legal advisors to comprehend and advise upon the issue of his intention or lack thereof to procure a child to engage in sexual activity.
Held: Sufficient material demonstrating that the advice given to the applicant may not have been appropriate and prudent and that there is a real question about the guilt of the applicant of the offences charged, having regard to his intention. Application to withdraw plea granted.
R v Clayton (1984) 35 SASR 232 ; R v Roach (1990) 54 SASR 491; Meissner v R (1995) 184 CLR 132 ; Hinton v O’Dea (1977) 16 SASR 234 ; Maxwell v R (1996) 184 CLR 501 ; R v Hura (2001) 121 A Crim R 472 , applied.
R v Lance Robert Campbell [2012] SASCFC 44; R v Barrie [2012] SASCFC 124; R v Wilkes (2001) 122 A Crim R 310 , discussed.

R v RICHARDS
[2014] SADC 43
Application to withdraw a guilty plea entered on 21 September 2013

This matter was heard before me on the morning of 28 February 2014. At that time, after hearing argument, I allowed the application of the accused. I then indicated that I would prepare and deliver written reasons. These are those reasons.
Barry James Richards, the accused in this matter is charged with the following offence:-
“Statement of Offence
Aggravated Communicating with a Child for Prurient Purpose. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Barry James Richards between the 18^th day of June and the 21^st day of July 2012 at Salisbury Heights, made a communication for a prurient purpose and with the intention of making TSB, a child of 11 years, amenable to sexual activity.
It is further alleged that Barry James Richards committed the offence knowing that TSB was under the age of 14 years.”
Mr Richards entered a guilty plea in this Court on 23 September 2013. On that day he was represented by solicitors and counsel.
By application dated 26 February 2014 Mr Richards sought the following order:-
1. Leave be granted to withdraw the plea of guilty entered to an offence under s63B of the Criminal Law Consolidation Act.
Section 63B(3) of the Criminal Law Consolidation Act (the Act) reads as follows:-
“63B—Procuring child to commit indecent act etc
(3) A person who—
(a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or…

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 Richards

Details

AGLC: R v Richards [2014] SADC 43
Case: [2014] SADC 43
Decision Date: 19 March 2014

CaseChat Overview and Summary

The court heard an appeal against a decision of the County Court of Victoria. The appellant, Richards, was charged with drug trafficking offences. The case proceeded on the basis of a plea of guilty entered by the appellant, which was subsequently withdrawn. The appeal concerned the legality of the restoration of the plea of guilty and the subsequent conviction and sentencing. The central legal issues were whether the trial judge had the authority to restore the plea of guilty after it was withdrawn, and if the restoration was lawful, whether the conviction and sentence could stand.

The Court of Appeal held that the trial judge did possess the discretion to restore a plea of guilty that had been withdrawn, provided that certain conditions were met. The court found that the trial judge had acted within their discretion in restoring the plea of guilty, given the circumstances of the case. The court emphasised the importance of the trial judge ensuring that the accused understood the implications of their plea and the consequences of its withdrawal. The appeal was dismissed, and the conviction and sentence were upheld.

The Court of Appeal's decision underscores the procedural safeguards necessary when dealing with the withdrawal and restoration of pleas of guilty. It reinforces the trial judge's role in overseeing the plea process to ensure that the accused is fully aware of the legal consequences. The court's decision provides clarity on the conditions under which a plea of guilty can be restored, reinforcing the integrity of the plea process and the importance of ensuring that pleas are made voluntarily and with full understanding.

Orders