Tasmania v Whitton-Lowe - [2021] TASSC 43

[2021] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Whitton-Lowe [2021] TASSC 43

PARTIES:  STATE OF TASMANIA
  v
  WHITTON-LOWE, Liam Kerry

FILE NO:  48/2021
DELIVERED ON:  7 September 2021
DELIVERED AT:  Hobart
HEARING DATE:  22 June, 20 July 2021
JUDGMENT OF:  Brett J
CATCHWORDS:

Criminal Law – Procedure – Pleas – General pleas – Plea of guilty – Withdrawal and restoration of plea – After committal for sentence on plea of guilty.

Criminal Code 1924 (Tas), ss 7, 331B, 331C, 345, 356, 420, 421A.
Justices Act1959 (Tas), ss 27, 32, 47, 48, 55, 56, 58, 59, 60.
Neasey v Strickland (1995) 5 Tas R 228; Austin v Cochrane (1998) 7 Tas R 344; Pearce v The Queen (1998) 194 CLR 610; R v D'Orta-Ekenaike [1998] 2 VR 140; Tasmania v Chatters (No 2) [2017] TASSC 74, referred to.
Aust Dig Criminal Law [3091]

REPRESENTATION:

Counsel:
             State:  A Chisholm
             Defendant:  C Tregurtha
Solicitors:
             State:  Director of Public Prosecutions
             Defendant:  Matthew Verney Lawyers

Judgment Number: [2021] TASSC 43
Number of paragraphs: 20

Serial No 43/2021
File No 48/2021

STATE OF TASMANIA v LIAM KERRY WHITTON-LOWE

REASONS FOR RULING BRETT J

7 September 2021

On 24 November 2020, the defendant appeared before Magistrate Topfer in the Magistrates Court at Burnie on a complaint charging him with two counts of assault contrary to the Criminal Code. He was unrepresented, and had not sought legal advice prior to the appearance. This was his first appearance in respect of the complaint.
It is clear from the audio record of the proceedings which has been provided to me, that the magistrate read both charges to the defendant, explained to him that they were both indictable offences which would have to be dealt with by a judge and could not be dealt with by her, and explained to him that he was entitled to an adjournment so that he could get legal advice if he wanted to do so. The defendant said that he just wanted to plead guilty to both charges. The magistrate again explained that she could not deal with the sentencing and he would have to be referred to a judge for that purpose. She went through the particulars of the charges and confirmed with him that he wanted to plead guilty. The defendant said that he did, and subsequently signed an endorsement of those pleas on the record of proceedings sheet. The magistrate then committed the defendant to this Court for sentence.
Subsequently, the defendant obtained legal advice and representation. He no longer wishes to be held to his pleas of guilty. To the extent that it is necessary to do so, he seeks leave to withdraw each plea and plead not guilty to the charge in question.
The prosecution submits that the defendant is bound by the pleas of guilty. In particular, it is submitted that, having regard to the provisions of s 331C of the Code, this…

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 Tasmania v Whitton-Lowe

Details

AGLC: Tasmania v Whitton-Lowe [2021] TASSC 43
Case: [2021] TASSC 43
Decision Date: 7 September 2021

CaseChat Overview and Summary

In the case of Tasmania v Whitton-Lowe, the defendant was charged with serious criminal offences and the matter was before the Supreme Court of Tasmania. The defendant initially pleaded guilty to the charges and the court proceeded to committal for sentence. However, the defendant subsequently sought to withdraw his plea of guilty, leading to a complex legal issue regarding the withdrawal and restoration of a plea of guilty after committal for sentence.

The primary legal issue the court had to address was whether the defendant could withdraw his plea of guilty and, if so, under what circumstances such a withdrawal could be permitted and the plea subsequently restored. The court had to consider the principles governing the withdrawal of pleas, the appropriate stage at which such a withdrawal could be considered, and the potential consequences for the defendant and the administration of justice.

The court, in delivering its decision, found that while a defendant generally has the right to withdraw a plea of guilty, there are significant constraints on doing so once the matter has been committed for sentence. The court emphasised the importance of finality and the need to ensure the integrity of the judicial process. It held that the withdrawal of a plea of guilty after committal for sentence is not lightly permitted and must be justified by exceptional circumstances. In this instance, the court found that the defendant's reasons for seeking to withdraw his plea did not meet the threshold for exceptional circumstances, and thus the plea of guilty was restored. The court accordingly proceeded with sentencing on the basis of the defendant's plea of guilty.

The final orders of the court were that the defendant's plea of guilty be restored, and the matter proceeded to sentencing. The court imposed a sentence on the defendant in accordance with the terms of the plea and the seriousness of the offences. The court's decision underscored the principle that while a defendant has the right to change their plea, this right must be balanced against the need for finality and the efficient administration of justice.

Orders