R v Worthington-Eyre No. DCCRM-96-947 Judgment No. D3578

[1997] SADC 3578

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Lee

Hearing

03/03/97.

Catchwords

CRIMINAL LAW Change of plea - defendant pleaded guilty to minor indictable offences - Magistrate remanded defendant to District Court for sentence under s19(5) of Criminal Law (Sentencing) Act 1988 - no preliminary examination - application to change plea as of right under s111(1) of Summary Procedure Act 1921 - held that operation of section 111(1) limited to committal for sentence upon plea of guilty at preliminary examination.

Materials Considered

• R v Clayton (1984) 35 SASR 232;
• Attorney-General v Kitchen &; Roberts (1989) 51 SASR 54;
• R v Roach (1990) 54 SASR 491, referred to.

Representation

Appellant R:
Counsel: MR S SMART - Solicitors: DIRECTOR OF PUBLIC PROSECUTION (STATE)

Respondent GARY PHILIP WORTHINGTON-EYRE:
Counsel: MR D PETRACCARO - Solicitors: CALDICOTT &; CO

DCCRM-96-947

Judgment No. D3578

11 March 1997

(Criminal)

Judge Lee

Criminal

R V GARY WORTHINGTON-EYRE

RULING OF HIS HONOUR JUDGE LEE

This is an application by the defendant to change pleas of guilty.His counsel contends that s111(1) of the Summary Procedure Act 1921 entitles him to do so as of right.At this stage, the Court has not been asked to exercise its discretionary power to permit a change of plea in accordance with the principles laid down in R v Clayton (1984) 35 SASR 232, Attorney-General v Kitchen and Roberts (1989) 51 SASR 54, and R v Roach (1990) 54 SASR 491.

The relevant background is as follows.The information in the Magistrates Court charged the defendant with 158 counts of false pretences and fraudulent conversion.According to the classifications in s5 of the Summary Procedure Act, the offences are minor indictable.

On 12 July 1996, the defendant entered pleas of guilty in the Magistrates Court to 23 of the counts.He was represented by counsel.The court was told that a list of other offences to be taken into consideration would be prepared and addressed at the next hearing.

On 7 August 1996, having expressed the opinion that the possible penalty would be beyond his jurisdiction, the Magistrate remanded the defendant for sentence in this Court.He did so in exercise of his powers under s19(5) of the Criminal Law (Sentencing) Act 1988.

The defendant's first appearance in this Court was on 9 September 1996.At a subsequent status conference on 9 October 1996, a disputed facts hearing was set for 21 January 1997.The disputed facts hearing did not proceed on that date, because the defendant's counsel indicated that his client wished to change his pleas.

Part 5 of the Summary Procedure Act governs the procedure for dealing with indictable offences in the Magistrates Court.A person charged with a minor indictable offence, who elects in accordance with the rules for trial in a superior court and enters a plea of guilty at the preliminary examination, will be committed to a superior court for sentence (ssl03(3) and 105(1) and (2)). Rule 21.04 of the Magistrates Court Rules provides that, unless an election has been made, the prosecution, upon the request of the defence or direction of the Court, must provide the defence with a summary of the evidence in support of each charge.Rule 21.07 provides that an election must be made within 14 days of the delivery of the summary of evidence, or where no summary has been requested or directed, not later than six weeks after the defendant's first appearance before the Court.

The defendant did not elect for trial in a superior court pursuant to the rules.Rather, as I have said, the Magistrate exercised his power under s19(5) of the Criminal Law (Sentencing) Act 1988.In the result, the Magistrates Court did not proceed with a preliminary examination, pleas of guilty were not entered at a preliminary examination, and the defendant was not committed for sentence at a preliminary examination.

Section 111 of the Summary Procedure Act is in these terms:

(1) A person who has been committed to a superior court for sentence may, on appearing before that court, withdraw the admission of guilt and plead not guilty to the charge.

(2) In such a case, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.

(3) The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.

When considered in the context of the scheme of Part 5 of the Summary Procedure Act, the operation of s111 (1) is limited in my view to a committal for sentence upon a plea of guilty at a preliminary examination.All other changes of plea must be by leave in accordance with well settled principles.I do not agree with counsel for the defendant that the liberal interpretation of the provision required by s22 of the Acts Interpretation Act 1915 entitles a defendant who has been remanded for sentence under s19(5) of the Criminal Law(Sentencing) Act 1988 to change his plea as of right.

My conclusion is re-enforced by an examination of the immediate predecessor of s111, namely s141 of the Justices Act 192 1. Part V of the Justices Act, which included s141, was repealed and replaced in 1991 (Act No 72 of 199 1).The introductory words of s141 - "When a defendant has been committed or admitted to bail as aforesaid" - refer back to the requirement of s136(1)(a) that a defendant be committed for sentence upon entry of a plea of guilty at a preliminary examination.So there was a clear link between a committal for sentence at a preliminary examination and the right to change a plea without leave.If, in 1991, Parliament intended to break the link and to extend the right to withdraw a plea of guilty without leave, one would expect to find a clear expression of that intent in the replacement provision.

It must follow that the leave of the Court is required.If so advised, the defendant should file a written application specifying the grounds and an affidavit or affidavits in support.I consider that this is a case where affidavit evidence should be put before the Court, although I recognise that there is no inflexible rule: Attorney-General v Kitchen at 57 and 65.If, as appears to be the case, the defendant contends that there was a misunderstanding between him and his solicitor or counsel, it may be that the Court will need to hear oral evidence as well.I would expect that the Court will need also to be satisfied that there is an arguable defence in fact or law to the charges: R v Roach at 495 and 496.

Iremit the matter to a status conference to be held on Wednesday 2nd April at 9.20 am.I direct that any application and supporting affidavit or affidavits be filed and served in the meantime.