R v S, RP - [2011] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, RP
[2011] SADC 171
Reasons for Decision of His Honour Judge David Smith
4 November 2011
CRIMINAL LAW
Practice and Procedure - pleas of guilty entered on eve of trial - application to withdraw pleas - two previous such applications dismissed - prosecution applied to dismiss third application as an abuse of process - discussion of principles applicable to applications to dismiss for abuse of process - discussion of circumstances in which multiple interlocutory applications will be regarded as an abuse.
Held: Application to withdraw guilty pleas dismissed as an abuse of process on the basis that there was no significant new material justifying the Court entertaining the further application.
Criminal Law Consolidation Act 1935 s 49(1), referred to.
R v S [2010] SADC (Unreported) Herriman DCJ, 13 September 2010; R v S, RP [2011] SASCFC 42; Rona v District Court of SA (1995) 63 SASR 223; Hunter v Chief Constable of West Midlands [1982] AC 529; Williams v Spautz (1992) 174 CLR 509; Jago v District Court of New South Wales [1989] 168 CLR 23; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; Walton v Gardiner (1993) 177 CLR 378; R v Noyes [2005] 1 QdR 169; R v Boag [1994] 73 A Crim R 35; R v Clayton (1984) 35 SASR 232, considered.

R v S, RP
[2011] SADC 171
Introduction

In this matter the Director of Public Prosecutions, by application dated 24 May 2011, applies to have the defendant’s third application to withdraw his guilty pleas dismissed as an abuse of process.
History
The defendant is charged on an Information dated 12 August 2008 with:
First Count
Unlawful Sexual Intercourse with a Person under 12. (section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
R P S between the 1^st day of August 2005 and the 6^th day of March 2008 at Cowandilla, had sexual intercourse with A M G S, a person under the age of 12 years, by causing her to perform an act of fellatio upon him.
Second Count
Unlawful Sexual Intercourse with a Person under 12. (Ibid).
Particulars of Offence
R P S between the 1^st day of August 2005 and the 6^th day of March 2008 at Cowandilla, had sexual intercourse with N R G S, a person under the age of 12 years, by causing her to perform an act of fellatio upon him.
The alleged victims are the defendant’s daughters.
When first arraigned in this Court on 18 August 2008, the defendant pleaded not guilty to both charges. The trial was fixed for 27 July 2009. The commencement of the trial was adjourned for a day because there was late disclosure by the Prosecution of some material information and further there was consideration being given by the…

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] SADC 171
Case: [2011] SADC 171
Decision Date: 4 November 2011

CaseChat Overview and Summary

In the District Court of South Australia, the defendant, S, RP, faces charges of unlawful sexual intercourse with two of his daughters. S had initially pleaded not guilty but changed his plea to guilty on the eve of the trial. The Director of Public Prosecutions now seeks to have S's third application to withdraw his guilty pleas dismissed as an abuse of process. The court must consider the principles applicable to applications to dismiss for abuse of process and whether the circumstances justify regarding multiple interlocutory applications as an abuse.

The court found that the defendant's third application to withdraw his guilty pleas was an abuse of process. The court found that the defendant had previously pleaded guilty freely and voluntarily, a finding confirmed by two courts. The "new" psychiatric and psychological evidence did not establish a reasonable prospect that the defendant's apparently free and voluntary confession of guilt could not be relied upon. The court was not satisfied that the defendant's third application had a real prospect of success or was not "foredoomed to fail." Therefore, the court dismissed the application as an abuse of process. The court also invited further submissions before making any order prohibiting the defendant from making further applications.

Orders