R v S, RP - [2011] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, RP
[2011] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Kourakis)
10 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
Appeal against convictions after guilty plea - appellant contends that his trial counsel coerced him to plead - appellant applied to withdraw pleas - first application refused - second application determined without being heard in court - whether finding of Judge that pleas not entered under duress of trial counsel affected by error - whether District Court failed to exercise jurisdiction in refusing second application.
Held: appeal dismissed - Judge did not err in finding that appellant entered guilty plea voluntarily - District Court failed to exercise jurisdiction or failed to accord procedural fairness in dismissing second application - second application without substance and bound to fail - convictions founded on guilty pleas not a miscarriage of justice.
Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37, applied.
R v Hura (2001) 121 A Crim R 472, considered.

R v S, RP
[2011] SASCFC 42
Court of Criminal Appeal: Sulan, David and Kourakis JJ

SULAN J: I agree with Kourakis J. I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Kourakis J.
KOURAKIS J: This is an appeal against convictions which were made on the appellant’s pleas of guilty to two counts of unlawful sexual intercourse. The appellant contends that it would be a miscarriage of justice to allow the convictions to stand on two grounds. First, he contends that his trial counsel coerced him to plead guilty. A Judge of the District Court conducted a hearing on the appellant’s application to withdraw his pleas and was not persuaded that the appellant was pressured to plead guilty. Indeed, the Judge found that the appellant voluntarily confessed his wrong doing out of a consciousness of guilt. For the reasons I will shortly give the appellant has not shown that that conclusion is attended by error.
Second, the appellant contends that the District Court wrongly failed to exercise its jurisdiction to hear a second application to withdraw the guilty plea which was made after the dismissal of his first application. I accept that the District Court wrongly failed to exercise its jurisdiction, or, alternatively, failed to accord the appellant procedural fairness before dismissing the second application. The application was never called on in court or chambers because the Judge of the District Court who had heard the first application informed the Registrar that he declined to exercise his discretion to re-open the first application. Applications to withdraw a plea of guilty are interlocutory in nature and the dismissal of an application does not…

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 S, RP

Details

AGLC: R v S, RP [2011] SASCFC 42
Case: [2011] SASCFC 42
Decision Date: 10 May 2011

CaseChat Overview and Summary

The appeal concerned convictions recorded against the appellant, R, following guilty pleas entered in the District Court. The appellant contended that his trial counsel had coerced him into pleading guilty and sought to withdraw his pleas. The central dispute revolved around whether the appellant's guilty pleas were entered voluntarily and whether the District Court had erred in its handling of his applications to withdraw those pleas. The appeal was heard by Sulan, David, and Kourakis JJ.

The legal issues before the appellate court were twofold: first, whether the trial judge erred in finding that the appellant's guilty pleas were not entered under duress from his trial counsel; and second, whether the District Court failed to exercise its jurisdiction or accord procedural fairness in dismissing the appellant's second application to withdraw his pleas without a hearing.

The court found that the trial judge did not err in concluding that the appellant entered his guilty pleas voluntarily. However, the court determined that the District Court had failed to exercise its jurisdiction or accord procedural fairness by dismissing the second application to withdraw the pleas without hearing the appellant. Despite this procedural failing, the court held that the second application was without substance and bound to fail, and therefore, the convictions founded on the guilty pleas did not constitute a miscarriage of justice. The evidence of a Dr. D, whose opinions were considered by the court, was found to carry little weight due to his advocacy for the appellant, which disqualified his opinions from serious consideration.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if D’s opinions on the nature of the admissions and on guilt of the offences themselves were admissible, the evidence of D carries little weight. The evidence of his advocacy of the appellant’s cause, which advocacy is apparent in the report itself, disqualifies D’s opinions from serious consideration. The second application was bound to fail.Conclusion There has been no miscarriage of justice. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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