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 Prosecution to applying to amend the Information to include a further offence. Notwithstanding the grant of the application to adjourn for a day, later on that same morning of 27 July 2009, the defendant returned to court and upon being re-arraigned pleaded guilty to the two offences. The matter was then adjourned for sentencing submissions.
On 6 July 2010, before the sentencing submissions, the defendant made application to withdraw his guilty pleas. Following a hearing in this Court before Herriman DCJ that application was refused on 13 September 2010. In his Reasons Herriman DCJ, found that the defendant had freely and voluntarily confessed to his offending out of a consciousness of guilt. (see R v S [2010] SADC (Unreported, Herriman DCJ, 13 September 2010)).
On 14 December 2010, armed with a psychological report from a Mr Stephen Dunstone, the defendant made a further application to Herriman DCJ to “reopen or reconsider” the original application. His Honour refused to entertain this second application.
The defendant appealed on the grounds that His Honour, Judge Herriman erred, first in finding that he entered his plea freely and voluntarily and out of a consciousness of guilt, and second by not entertaining the second application. On 10 May 2011 the Court of Criminal Appeal dismissed the first aspect of the appeal but held that the Judge erred in not entertaining the second application. In particular, Justice Kourakis, with whom Justices David and Sulan agreed, held that the application was interlocutory in nature and so the dismissal of the first was not final and did not bar the making of another. His Honour, Justice Kourakis said that Judge Herriman could only have refused the second application, if, after conducting a hearing, he found that the application constituted an abuse of process. Justice Kourakis then considered this “second application” and concluded that it was bound to fail. Therefore on 10 May 2011 the Court of Criminal Appeal dismissed the appeal in its entirety (see R v S, RP [2011] SASCFC 42).
Undeterred, on 16 May 2011, the defendant made, what amounts to a third application, to withdraw his guilty pleas.
By Application dated 24 May 2011, the Director of Public Prosecutions applied to have this last application dismissed as an abuse of process. I heard argument on 23 June 2011.
Legal Principles
The District Court, clearly, has power to prevent an abuse of its processes. (see Rona v District Court of SA (1995) 63 SASR 223 per King CJ at 226).
An expression of the underlying principle is to be found in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (1992) 174 CLR 509 at 520:
As Lord Scarman said in R v Sang [1980] AC 402 at 455, every court is ‘in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 in a passage which Mason CJ quoted in Jago (at 30). The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.
The circumstances in which abuse can arise are not constrained or confined. As Lord Diplock said in the House of Lords decision of Hunter v Chief Constable of West Midlands [1982] AC 529 at 536.
It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.
(see also Jago v District Court New South Wales [1989] 168 CLR 23 per Brennan J at 47).
The category of abuse claimed in this matter, is the relitigation of an interlocutory application which has been dismissed at first instance and on appeal and in respect of which there is no new material evidence.
Repeated interlocutory applications will be refused by a Court, in the exercise of its power to prevent abuses of its processes, if there is no significant new material justifying fresh consideration. (see Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104 per Doyle CJ at [53] - [71]).
The onus of satisfying the Court that there is an abuse of process lies upon the person bringing the application. (see Williams v Spautz (supra) per Mason CJ, Dawson, Toohey, McHugh JJ at 529).
The merit of the application, said to constitute an abuse of process, is of relevance to any decision to dismiss it as an abuse. The principles relevant to applications to withdraw a guilty plea have been canvassed in the Judgment of Herriman DCJ (supra) at p. 7. Repeating them is unnecessary. In the context of this abuse application, the following overlapping considerations pertinent to weighing the merit of any application to withdraw a guilty plea, have application.
·Is there new material or evidence in prospect, in the challenged application, which would be sufficient to justify the Court reconsidering the matter? (see Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [10]); and
·Does the challenged application have a real prospect of success or is it “foredoomed to fail”? (see Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). To use the words of Homes J with whom McMurdo P and Muir J agreed, in R v Noyes [2005] 1 QdR 169 at [24]:
It seems to me that in considering whether the continuation of prosecution is an abuse of process it must be relevant to consider, at least whether the prosecution has a real prospect of success. That is not to say that fine balancing exercises must be entertained; but plainly in considering whether proceedings would be oppressive it is relevant to consider whether they are viable.
·Finally, for the Court to dismiss the application as an abuse of process, it needs to be satisfied, as is required in any application to withdraw a plea of guilty, that such a refusal will not result in a miscarriage of justice. (see R v Boag [1994] 73 A Crim R 35 at 37; see also R v Clayton (1984) 35 SASR 232 per Wells J at 234).
With those principles in mind, I now turn to the Prosecution’s abuse application and in particular the evidence.
Evidence
In the defendant’s application dated 6 July 2010, (“the first application”), the defendant’s evidence, in summary, was that he had been subjected to improper inducements by his counsel and that his pleas of guilty were neither voluntary nor arising from a consciousness of guilt (see application 6 July 2010: affidavit of defendant sworn 25 June 2010 and sworn evidence 6 August 2010 before Herriman DCJ). There was no other evidence proffered.
After the dismissal of the first application by Herriman DCJ in this Court on 13 September 2010, but before the appeal, the defendant sought to reopen the application before Herriman DCJ and, to that end, on 14 December 2010, made an application entitled Addendum Application to Withdraw Guilty Plea (“the second application”). The only further evidence proffered was a report of the psychologist, Mr Stephen Dunstone dated 11 December 2010. That psychological report was criticised by the Court of Criminal Appeal. In particular, His Honour, Justice Kourakis concluded that whatever the cogency of the opinion set out in the report, it was not underpinned by the necessary factual evidence from the defendant. (see R v S, RP (supra) per Kourakis J at [44] – [49]).
On 16 May 2011, six days after the adverse decision of the Court of Criminal Appeal, the defendant made yet another application (“the third application”). He again pleaded that the guilty pleas were neither free nor voluntary and were not made out of a consciousness of guilt. His affidavit in support:
·invoked his earlier affidavit which was sworn on 24 June 2010 in support of the first application;
·invoked the sworn evidence given by him before Herriman DCJ in this Court on 6 August 2010; and
·exhibited three psychological reports, the first from Ms Katherine Hawkins, dated 19 November 2009; the second from Dr Jack White, dated 6 June 2011; and the third from Mr Richard J Balfour, dated 21 June 2011.
In the course of the submissions on 23 June 2011, the defendant, by his counsel, produced and tendered by consent two psychiatric reports: the first from Dr Narain Nambiar, dated 26 April 2010; and the second from Dr Craig W S Raeside, dated 28 June 2010.
The two psychiatric reports had been in the defendant’s possession at the time of the hearing before Herriman DCJ and the appeal, but were not produced.
Such is the evidence which I accept is before me on this application. I accept also, as evidence, the step by step disposition of this proceeding.
The Prosecution’s contention in summary is that, the current application duplicates the previous two applications. It contends that despite the newly arrived psychological and psychiatric evidence, there is no significant new or fresh evidence to justify the Court’s consideration. The Defence response is that there is new significant material in the form of psychiatric and psychological evidence which would justify the Court entertaining the current application.
Conclusion
It can be seen that, in resisting the Prosecution’s application, the defendant has relied upon his previous discredited affidavit and oral evidence, but has supplemented that with the “new” psychological and psychiatric evidence embodied in the reports I have particularised above.
The starting place for the consideration of this abuse application must be an acceptance of the findings of Herriman DCJ in this Court, as confirmed by the Court of Criminal Appeal, namely that the defendant freely and voluntarily pleaded guilty on 27 July 2009. Putting aside the “new” psychiatric and psychological evidence, the defendant’s affidavit evidence, in support of the third application, merely repeats and invokes what has been rejected. There is nothing new or fresh in this repeated evidence which would justify any reconsideration. As I have made clear, it does not matter that the defendant’s applications are interlocutory in nature and not final. A relitigation of this third application would be an abuse if the only evidence offered was a mere repeating of that which has already been rejected by this Court and the Court of Criminal Appeal. However, if the “new” psychiatric and psychological evidence, established as a reasonable prospect, that by reason of some identifiable psychiatric or psychological fragility, the defendant’s apparently free and voluntary confession of guilt, should not be relied upon, then permitting a change of plea would be justified to ensure the prevention of a miscarriage of justice.
The Prosecution bears the onus, and so for it to succeed, it must show that the so called “new” psychological and psychiatric evidence does not raise as a reasonable prospect, that the defendant’s apparently free and voluntary confession of guilt cannot be relied upon. Or, to use the words of Homes J in R v Noyes (supra) at [24], the Prosecution must satisfy the Court that the defendant’s third application to withdraw his guilty pleas has no “real prospect of success” or is not “viable”.
I start with the psychiatric evidence which is not strictly “new”.
Both Doctors Nambiar and Raeside were asked to investigate not only the defendant’s general mental health but in particular, his mental fitness at the time he pleaded guilty to the charges. Although both medical practitioners unearthed a rich history of mental health difficulties, neither found evidence of any mental impairment or other psychiatric disorder, which would have rendered the defendant unfit to plead at the time he pleaded guilty. (see Dr Raeside at 12; Dr Nambiar at 9 and 10).
Dr Raeside was provided with and expressed his views about the clearly incriminatory contents of the letters which the defendant forwarded to his daughters and to their mother in July, 2008. (see Exhibits A1, A2, and R4 in trial before Herriman DCJ). Dr Raeside did not ascribe to these letters any significance other than that they were indicative of an awareness on the part of the defendant of what he had done, the consequences thereof, and the legal ramifications. (see at pp 9, 10).
This topic of the state of mind of the defendant at the time of writing and forwarding the letters, whilst relevant to the question of guilt, is not, strictly speaking, relevant to the issue here.
Accordingly both the psychiatric reports are unhelpful in the sense that they do not raise any matters which in turn raise a question mark over the defendant’s pleas of guilty. It is not surprising that they were not produced in either the hearing in this Court before Herriman DCJ or the appeal.
The criteria for fitness to stand trial (see s 269H of the Criminal Law Consolidation Act) is not exhaustive of the matters which might render a plea of guilty unsafe. Accordingly, the two psychiatric reports do not resolve the matter. I now turn to the three psychological reports.
The report of Ms Katherine Hawkins, dated 19 November 2009, was provided to the defendant’s then solicitors in response to a request that she provide “… a general psychological assessment … to assist the Court during sentencing …” (see p.1). She interviewed the defendant on 19 August 2009 – approximately three weeks after he had pleaded guilty.
As to the general psychological assessment, Ms Hawkins found no evidence of the defendant suffering from a psychotic illness. She said that his presentation “… may be consistent with some of the characteristics of narcissistic personality disorder and generalised anxiety disorder …” (see report at p.13). The information provided to her by the defendant as to the offending was somewhat ambiguous. In some places his responses admitted the charged offending and then in others it appeared that he was admitting some unspecified inappropriate sexual touching of the children in the course of giving them sexual instruction. At one stage he told Ms Hawkins that the children’s mother participated in this form of instruction and indeed instigated it. (see report at pp 11, 13 and 14).
Ms Hawkins did not suggest that the defendant suffered with any condition or illness which might undermine the integrity of his pleas. Certainly her brief was not directed to any such topic. Her report proceeded on the basis that the defendant had freely pleaded guilty and so it was focussed upon sentencing considerations from her discipline’s point of view.
Dr Jack White interviewed the defendant on 24 May 2011 and his opinion is embodied in his report of 6 June 2011. He concluded that the defendant answered the diagnostic criteria for an Adjustment Disorder With Anxiety (see report at p.17). He said, in particular, that the defendant reacted to being charged with “… a very reactive Adjustment Disorder With Depressed Mood” (see report at p.18).
Dr White was asked by the defendant’s then solicitors for his opinion of the defendant’s state of mind when he wrote the incriminating letters to his daughters and their mother in July 2008. Dr White’s answer appears to be that the letters should not be interpreted as admissions of guilt by the defendant, and he offered an unconvincing explanation of why he thought so. (see report at p.18). The explanation is not only at odds with what is manifestly obvious from a perusal of the letters, but also is at odds with the views of both Dr Raeside, (see pp 9, 10), and Mr R Balfour (see p.7).
On the more pertinent question of the defendant’s state of mind when he changed his pleas to guilty, Dr White concluded as follows:
From a psychological perspective, it is possible that Mr [S’s] decision-making at the time he decided to change his plea from “not guilty” to “guilty” was influenced by his depressed state, and his lack of assertiveness where he perceived his legal advisors were advising him to plead “guilty”. In the relatively short period of 90 minutes he was required to take into account the consequences of a “guilty plea” with its inevitable prison sentence, loss of liberty, loss of friends and loss of family.
Alternatively, Mr [S’s] psychological make-up was such that he needed to be seen in a positive light, and realised that in order to uphold his reputation he could not possibly plead “guilty”. In this context, Mr [S] provided a Mittyesque justification to his circumstances in order to avoid having to deal directly with the consequences of the situation.
(See report at pp 19, 20).

The above “psychological perspective” follows on from Dr White canvassing in summary form his view of the evidence of the defendant, the barrister Kane, and the solicitor, Wabnitz as to what happened on or about 27 July 2009. (see report at p.19).
Certainly, if an opinion is based on facts, the expert witness must identify the facts upon which he or she has relied. In this case the facts are fixed. For Dr White’s opinion to be of value for the issue which I have to decide, it had to be predicated upon the facts as found by Herriman DCJ and as left undisturbed by the Court of Criminal Appeal. At the risk of being repetitious, those facts are, in summary, that the defendant was not induced, threatened or subjected to any impropriety or undue pressure at the hands of his legal advisers, and he voluntarily and freely pleaded guilty. A perusal of the analysis of the evidence, conducted by Dr White, as a prelude to his conclusion, (see p.19), reveals that he did not assume those facts but rather postulated his own findings of fact, or more correctly, recited portions of the evidence without conclusion and then applied his psychological assessment of the defendant to that inconclusive summary. Therefore, Dr White’s opinion is unhelpful. He was, clearly, not asked to proceed on the findings of Herriman DCJ.
I turn to the evidence of the psychologist, Mr Richard Balfour. His opinion was sought on the following issues:
·Psychological profile of the defendant;
·The defendant’s mental state at the time he wrote the letters of apology to his daughters and their mother; and
·The defendant’s mental state at the time he was advised by his former barrister, Mr R Kane, to plead guilty to the current offences and whether his plea was reliable?
Mr Balfour interviewed the defendant on 23 May 2011.
As to the defendant’s psychological profile he concluded that, as was commonplace with persons facing serious criminal offences, the defendant had developed an Adjustment Disorder Characterised by Depressive and Anxious Features. (see report at p.6).
Mr Balfour regarded the defendant’s explanation of the incriminating letters as inconsistent and his “strong impression” was that the letters were “legally incriminating”. (see report at p.7).
As to the third matter, Mr Balfour reported as follows:
What was Mr [S’] mental state at the time he was advised by his former barrister, Mr Kane, to plead guilty to the current offences; and was his plead reliable?
Mr [S] was suffering from an Adjustment Disorder characterised by depression and anxiety. There is documented literature which has demonstrated that human decision making capabilities are adversely impacted by high psychological arousal (e.g. anxiety, fear, etc). This principle is known as the Yerkes-Dodson Law.
Mr [S] was feeling very anxious because his legal stressors had been brought to a head by him having to make important legal decisions based on the legal advice which was provided to him regarding his options and the likely outcomes. The range of legal options presented to him were unpalatable because all of the outcomes were aversive and he believed himself innocent. He felt under duress because he believed he was pleading guilty for something he had not done. He would have been suffering from performance anxiety. Performance anxiety can lead to diminished decision making and mental freezes. He would have felt internally conflicted about what was the best option for him. His ability to make confident decisions would clearly have improved if he had been given adequate time to calm down, and to carefully assess the information at hand before making a final decision.
Certainly, if as Mr Balfour reports, notwithstanding the defendant’s own conviction of his innocence and his protestations to his legal advisers, by reason of his fragile psychological condition, he bowed to their undue pressure and in the result pleaded, that would be a clear basis to permit him to change his pleas because they would not have been free and voluntary as required. However, the assumed facts, as I have repeated, are those found by Herriman DCJ. They include that in the barrister’s chambers immediately following the Court attendance of 27 July 2009, in the course of discussing the newly disclosed information, the defendant instructed the barrister and solicitor that he wished to change his pleas. There was, for instance, at that time, no prelude of him being advised to plead guilty. What then followed were steps to facilitate that instruction, including advice that he carefully consider his situation and the completion of the written instructions, (Exhibit R4). Therefore, Mr Balfour’s assumed facts are those which have not been accepted by two Courts in this matter thus far. Clearly, like Dr White, Mr Balfour was not asked to assume the facts as found by Herriman DCJ. However the inevitable consequence is that, for the purpose of the issue I have to decide, his opinion has no probative value.
Final Orders
For the above reasons, the so called “new” psychiatric and psychological evidence does not satisfy me that the defendant’s third application to change his plea is viable or has any prospect of success. In particular, I am satisfied in all the circumstances of this matter, that the defendant’s third application is an abuse of the processes of this Court. I order that it be dismissed.
The Prosecution seeks a further order from me that the defendant be prohibited from making any further such application. There was no specific argument about the Prosecution’s entitlement to such an order at the time of submissions. Before making such a far reaching order I would like to hear further submissions from both counsel.