Ayala v Poole
[2016] ACTSC 63
•21 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ayala v Poole |
Citation: | [2016] ACTSC 63 |
Hearing Date: | 21 March 2016 |
DecisionDate: | 21 March 2016 |
Before: | Walmsley AJ |
Decision: | 1. The application and appeal is dismissed. 2. The convictions and sentences of the Magistrates Court are confirmed. 3. Jarome Ayala is directed to report to ACT Corrective Services at Eclipse House, 197 London Circuit, Canberra City by 4:30pm on 22 March 2016. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against conviction – common assault – Mackenzie friend – whether the appellant ought to be permitted to withdraw pleas of guilty – no miscarriage of justice – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), s 26 Human Rights Act 2004 (ACT), s 22 Legal Aid Act 1977 (ACT), s 92 |
Cases Cited: | Meissner v The Queen (1995) 184 CLR 132 Norveska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 R v Gomez [2007] ACTCA 21; 1 ACTR 145 |
Parties: | Jarome Ayala (Appellant) Sylvia Rachel Poole (Respondent) |
Representation: | Counsel Mr J Ayala (Self-represented) assisted by Mr D Emmerson (Appellant) Mr K Lee (Respondent) |
| Solicitors Jarome Ayala (Self-represented) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 13 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 2 February 2015 Case Title: Poole v Ayala File Numbers: CC 14/11582 and CC 14/11583 |
WALMSLEY AJ:
In this appeal, the issue is whether the appellant ought to be permitted to withdraw his pleas of guilty to two counts of common assault.
On 26 November 2014, in the ACT Magistrates Court, the appellant pleaded guilty to two counts of common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). He was sentenced on 2 February 2015. The Magistrate recorded convictions and imposed sentences based on, among other things, an amended statement of agreed facts.
The appellant appealed against his convictions. He told me that he had no desire to appeal against severity and that he would undergo the remainder of his sentence if I dismissed his application. He gave notice that he proposed to adduce further evidence, including witness statements, affidavits and photographs.
The appellant’s grounds of appeal were stated as follows:
That the appellant is not guilty and wishes to reverse his plea of guilt, and that he was compelled to enter a plea of guilt whilst under extreme duress in exchange for a reduction in the severity of mildly higher charges of which he is also not guilty.
According to the amended statement of facts, on 25 June 2014, the victim, who had been in a relationship with the appellant, told him that she was leaving him. They argued and he seized her upper arms and squeezed them, lifted her up, threw her on a bed and placed a knee on her chest, causing her to lose her breath. Those facts are said to constitute the first assault.
On 28 June 2014, the victim and the appellant argued again. He called her a “piece of shit” and a “gold digger bitch”. She picked up some empty bottles and coffee mugs and threw them on the floor. She then, according to the amended statement of facts, continued to move furniture and break other items. The appellant rang police and asked them to attend, calling the victim a “psychopath” and a “crazy bitch”.
While the victim was standing in the kitchen, the appellant pushed her to the ground and grabbed her around the neck with both hands. She tried to kick him and push him away, but he grabbed her neck again. When the police attended, they observed the appellant to be heavily intoxicated and the victim to be crying and shaken, but polite and cooperative.
The victim was reluctant to tell the police what happened, but she agreed that she had broken the bottles. Later, she told police that she had wanted to end their relationship because of the appellant’s heavy drinking. The victim was taken from the home by police and later seen by a medical practitioner, who observed bruising under her arms.
The appellant, having seen his partner being removed from the home by police, was somewhat astonished when, in the early hours of the morning, police arrived to arrest and charge him. He was then charged with two counts of assault occasioning actual bodily harm.
On 18 July 2014, the Crown filed a prosecution election form pursuant to s 374 of the Crimes Act. In that form, the Crown elected to have the case heard summarily in the Magistrates Court; the maximum penalty for each offence being two – rather than five – years’ imprisonment.
It is not in dispute that, when the appellant was charged, he was granted legal aid and represented by Ms Hayunga, an experienced employee of the Legal Aid Commission. Ultimately, after negotiations with Ms Hayunga, the Crown withdrew the two charges of assault occasioning bodily harm and the appellant pleaded guilty to two charges of common assault.
The Magistrates Court ordered a Pre-Sentence Report (PSR) and a Court Alcohol and Drug Assessment Service Report (CADAS Report). The appellant was interviewed for both. The author of the PSR, dated 23 January 2015, noted that the appellant agreed with the statement of facts.
The authors of the CADAS Report made a number of observations based, apparently, on what the appellant had told them. As the Crown does not rely upon the contents of that report for the purposes of this appeal, it is unnecessary to refer further to it.
Ms Hayunga represented the appellant when he formally entered pleas of guilty and during his sentence. She tendered, on his behalf, a letter from a Mr T Reid, a friend of the appellant, as to his character and made submissions as to mitigation.
On each count, the appellant was convicted and sentenced to six months’ imprisonment: three months’ to be served by way of periodic detention and the balance to be suspended on his entering into a Good Behaviour Order for a period of one year. The terms of imprisonment were ordered to be served concurrently. The appellant has served part of his sentence. The sentence was stayed when he lodged his appeal.
The appellant was not represented by a solicitor or barrister on this appeal. He did not, apparently, qualify for legal aid, so I permitted his good friend Mr Emmerson – a former paralegal – to assist him, in effect, as a Mackenzie friend. Mr Emmerson has a Bachelor of Legal and Justice Studies, a course designed for paralegals, from Southern Cross University. His degree included a study of criminal law and legal process.
The appellant filed a number of affidavits, as well as some written submissions. Mr Emmerson made oral submissions on his behalf and has provided me, today, with an additional written submission. The Crown, represented by Mr Lee, called Ms Hayunga, tendered some documents and made some written and oral submissions.
I granted the appellant leave to call additional evidence which was not before the Magistrate. However, in the end, there was very little new material before me, other than an affidavit sworn by the appellant.
In a filed document, titled ‘Notice of Reason for Appeal’, the appellant stated, among other things:
I only pleaded guilty because I was advised whilst under huge duress, by persons I considered to be of authority, that it was in my interest to do so. These persons included my Legal Aid representing solicitor on, as I understood it at the time, the advice of the DPP.
Prior to this notice, I maintained my innocence at all times, and wished this innocence demonstrated, however had endured several days being locked up, experienced the sale of my family home and through that, any safe base to return to for safety, as well as the geographical break up of my family, and an enforced bail order, all of which combined left me homeless whilst facing two charges of assault occasioning bodily harm, of which I was innocent, at which my Legal Aid solicitor seemed unconvinced of their ability to adequately defend me.
I endured three months of extreme worry and stress before I was told by my Legal Aid solicitor of the offer by the DPP, that these charges of assault occasioning actual bodily harm could be reduced to two charges of common assault, if, and only if, I pleaded guilty to the latter. My Legal Aid solicitor advised me that I may be better off to plead guilty to these charges, even though I am innocent. I genuinely felt that doing so was the best option for all concerned, and a non-aggressive option that was the correct thing to do for our community.
This is the second time this has happened to me in my life; on both occasions I am innocent of the crimes alleged. Indeed, on both occasions I was the victim of violent domestic crime, and on both occasions it was I who called the police to assist, however both times was charged and held, and later on given an ‘opportunity’ to escape more serious charges if, and only if, I pleaded guilty to lesser charges.
On the first occasion, this offer came after I had been held for three weeks without conviction. I now realise the misery I have caused myself by agreeing to these pleas of guilt, when I really just wanted to stop further damage being caused around me, and to me, and to prevent any further trouble, both to myself and to others.
However, having been sentenced with periodic detention, I have been shocked by the results of my actions in pleading guilty, which I thought would be a placatory and tolerant way to live through a difficult moment. Because of this, and with the help of friends, I have been pushed to realise that I was not powerless to appeal my sentence, and moved to do so, the best I can.
I therefore enter this appeal to the Supreme Court to hear the circumstances of my case, and to retract my plea of guilt, which I consider at the time I was advised to make by people more knowledgeable than myself. I, of course, realise that reversing my plea will require a retrial at the expense of the time of the court and the public purse, however, as there was no real actual trial in the first place I am advised by friends in the community, considering the horrors I have endured, that this appeal is not only valid but in the interests of justice and thus, in the interests of all in our community. “(Numbering removed)”
In the appellant’s affidavit, he said that he was innocent of the assaults and only agreed to plead guilty because Ms Hayunga did not seem confident of winning. He said that he had given her no authority to approach the Office of the Director of Public Prosecutions (DPP) with an offer to plead guilty.
The appellant tendered evidence of an interview with his sister in which certain things were said about his character. He also tendered a letter from Mr Reid saying similar things. However, when the Crown indicated that it would call evidence of bad character, he withdrew all of the character evidence, including a number of paragraphs in his own affidavit in which he had asserted that he has never been violent to females. In the affidavit, as read, he said, among other things:
I did not actually make the final decision to enter a plea of guilty until I was sitting in the courtroom with Ms Hyunga [sic] in the short moments awaiting the trial and she asked me how I was going to plead. I wasn't sure and in the very brief exchange of words I stated to Ms Hyunga [sic] that I didn't want to have to plead guilty because I was innocent. To this her reply included words very close to "The court may not see it that way." It was only at that moment in this hushed and very brief conversation that I, saying to Ms Hyunga [sic] words very close to, "Well, if you think it's going to be easier and will save a lot of stress", agreed to plead guilty to what I understood to be the DPP offer to reduce the charges from two counts of assault occasioning harm, to one count of common assault.
At the time I agreed to this I was under the impression, due to information previously provided by Ms Hyunga [sic], that in a worst case scenario the higher charges could mean I would face a gaol term of up to ten years, for a crime I had not committed. It was my understanding that this sentence would begin immediately after the trial hearing.
This all terrified me a great deal, and I was under a great deal of duress from both this as well as from other sources in the few short moments before the trial hearing began, and had been for many months leading up to it.
I did not realise that I had actually agreed to plead guilty to two counts of common assault until the end of the sentencing hearing on the 2nd of February 2015 when the Magistrate made her final comments and sentenced me.
Because I would like this affidavit to give a detailed explanation of how I have come to be in this situation, and the events leading to it it's necessarily quite lengthy, and for ease of reading headings are used to break up the text. “(Numbering removed)”
The appellant asserted that the victim had previously broken things. He led me to understand that, on 28 June 2014, when she began smashing things, he became concerned for her safety. He had taken hold of her on one occasion because he was afraid she would slip and hurt herself on broken glass.
The appellant, in his affidavit, said nothing about the first alleged assault. In the application before me, he presented no evidence denying or seeking to qualify the description of it in the amended statement of facts. When this was, today, put to the appellant, Mr Emmerson, in effect, took responsibility for that, because he was the author of the affidavit. However, the appellant insisted when giving evidence that he was innocent of that offence too.
I accept Mr Emmerson’s explanation for why the assault was not specifically referred to in the affidavit. He is not a legal practitioner and would not understand the significance of its omission.
According to the appellant, on the occasion of the second assault, police came to the home and arrested the victim. He had been surprised when police arrived the next morning to arrest him since, as he saw it, he was the innocent party. He said that police must have been motivated to charge him because of his prior record for domestic violence offences.
The appellant said that he had consistently maintained to Ms Hayunga that he was innocent of the offences. Initially, he was told that the worst case scenario would be up to 10 years’ imprisonment, with five years for each offence. He said that he had told her that he was very anxious to ensure that the victim did not get into any trouble.
Although the appellant would have preferred to have spoken to Ms Hayunga by telephone in the lead up to the trial, she had communicated with him by email. However, he never said that he lacked appropriate opportunities to speak to her. In submissions, Mr Emmerson suggested that, given that there were important matters to discuss, Ms Hayunga should have taken the trouble to find the appellant so as to ensure that he received important emails.
The appellant said that, as a bail condition, he agreed to stop drinking while waiting for these matters to get on for trial. He found that very difficult, especially with the stress which came on shortly before the hearing date. He said that, at that time, he was in a constant state of panic and suffered from symptoms of Obsessive Compulsive Disorder (OCD) and Post-Traumatic Stress Disorder (PTSD).
As I understood his evidence, the appellant’s parents had recently separated. He had nowhere to live except with the complainant. He felt that he should not be a further burden by engaging a defended hearing.
He appreciated, ultimately, that he might have to accuse the victim of assaulting him. She had been worried about the case and had urged him to get it over with as soon as possible. As the trial date approached, he said that he became more anxious about the fact that he might be imprisoned.
Even during negotiations, the appellant thought that he was pleading guilty to only one count of common assault. He said in his affidavit that:
I did not read the attachments to the emails that Helen sent. Using my phone to receive them, and in the stressed state I was in, I did not even realise there were attachments there. It was just too hard for me. I was in such a state that just opening her email made me feel physically sick and increased my anxiety to the point that I had actual chest pains.
Living with OCD I do not always think clearly, but I have learnt to make decisions, and try to appear as though I function semi-well even when actually I am far from doing so. I do not think I was fit to make that decision in the morning of the trial.
After I agreed to plead guilty, I found that I had absolutely no say in anything at all. Not only did I have to wait another two months until sentencing and actually become free of bail conditions, the matter went ahead without any input from me at all, or for me to have any opportunity to do anything, and I was shocked to see the DPP solicitor add new completely uncorroborated statements as to what had happened, never before presented, and in my opinion quite untrue, at the sentencing hearing. “(Numbering removed)”
The appellant attended his interview for the PSR. However, he does not recall any discussion about the statement of facts or being shown it. He said:
I am certain if he did show me the AFP statement of facts I did not read it, I would never of knowingly signed anything to agree to those incorrect statements it contains.
The appellant said that he was shocked and disgusted when he read the report. He denies blaming the victim. It was only when he was discussing an appeal with the Legal Aid Commission that he learnt that he had signed something attached to the amended agreed statement of facts. He said that, if he did sign it, he did not see the statement and was not shown it by his Legal Aid representative. He said that when, at a later date, he saw the Australian Federal Police Statement of Facts at Mr Emmerson’s house, it was completely foreign to him.
The appellant said that he and the victim have reconciled since the events which gave rise to these proceedings. In oral evidence, he said that he could recognise his handwriting, or at least his signature, on the instruction sheet attached to the amended statement of facts but could not recall seeing the handwriting above it – which was the handwriting of Ms Hayunga. He did not understand that, by attaching his signature below, the words had the effect that he was agreeing to plead guilty to the two charges as described in the amended document.
In cross-examination, the appellant said that he had completed Year 12 at school and that he had no difficulties reading. He was able to read the words on the instruction sheet. He had been to court on a number of occasions and entered pleas of guilty in matters other than this one.
The appellant was taken through an email chain leading to his pleas of guilty for these offences. One email referred to two assaults being pleaded to. He said that he had not read that until after he had been found guilty of both offences. He maintained that he had not read the amended statement of facts. He denied that, when asked by the Magistrate as to whether he pleaded guilty to the second charge, he said that he was guilty. He also denied asking his solicitor “what was that all about” when asked about the second charge. He said:
I felt defeated and felt hopeless, so I can hardly even talk.
The appellant accepted the amended statement of facts had been tendered to the Magistrate, but maintained that, had he read it, he would have objected to it. He said that he had not had time to read anything. He could not explain why the PSR said that he had agreed with the amended statement of facts, but could not remember saying to Ms Hayunga that the report was wrong. He said that he might have been drinking heavily when the two assaults had occurred, or the two alleged assaults, as he would put it.
The appellant was cross-examined about three other convictions on his record. In his amended affidavit he swore that he had never physically assaulted any female person. He withdrew that piece of evidence when it was pointed out to him that it could expose him to proof by the Crown of other assaults on females. The Crown put that to him in cross-examination, as it was entitled to do so.
It was put to the appellant that, in 2009, he had pleaded guilty to two common assaults and one offence of possessing an offensive weapon with intent. He agreed that those three offences had occurred in connection with a previous partner. He said that he had been under pressure when he agreed to plead guilty to those offences. He had actually been innocent but had agreed to plead guilty because it was the only way he would get out of custody. He said, in relation to those offences:
If I read [the statement of facts] ... I didn’t take it in.
The appellant was sentenced to six months’ imprisonment, wholly suspended, for those offences. The assaults were committed on his ex-girlfriend and her nephew during an altercation. The appellant said that his girlfriend had stabbed him in the back with a fork. The offence of possessing an offensive weapon with intent concerned the appellant keeping a knife next to him because of his fear that a man who was interested in his girlfriend was on his way to kill him. The appellant noted that it was he who called the police. He conceded that he was intoxicated when the police arrived. In fact, he said that he was still drunk when he was being interviewed by police.
On 23 October 2015, the appellant filed an application under s 22(2)(h)(i) of the Human Rights Act 2004 (ACT) (Human Rights Act). Today, Mr Emmerson has advised me that this section, which protects the right to silence, is being relied upon in these proceedings. I understand Mr Emmerson to have agreed, in argument, that the Human Rights Act says no more about the right to silence than the common law, and has no other relevance to this appeal.
Ms Hayunga was called by the Crown. Given the nature of the application, I considered the appellant to have waived legal professional privilege. Accordingly, Ms Hayunga was at liberty to disclose communications between her and the appellant: s 92 Legal Aid Act 1977 (ACT).
Ms Hayunga told me that she had been employed by the Legal Aid Commission for 29 years. Of those 29 years, she spent 17 doing criminal work. When the appellant was charged, she was the duty solicitor and was allocated the file. She met the appellant at Court with Mr Emmerson.
Pleas of guilty were entered by the appellant at the second Court appearance; that is, on 22 July 2014. The case was set down for case management on 2 September 2014. On that day, the matter was listed for hearing on 26 November 2014. Bail was continued on both counts. Either on that day or a few days later, the appellant’s bail conditions were varied.
In the days leading up to the hearing, Ms Hayunga discussed the charges with the appellant. When asked about the appellant’s “level of comprehension when discussing the charges”, she gave evidence that:
That’s a difficult question to answer, but I was not myself concerned that Mr Ayala was not following or understanding the nature of the proceedings, or the court procedures involved.
Ms Hayunga said that she had dealt with a number of people over the years that had had difficulty comprehending charges. Had she thought that the appellant could not understand the charges against him, or was mentally ill, she would have taken a “particular course” or action, depending on the nature and extent of the situation. She had previously represented the appellant and was aware that he had a history of depression and anxiety and had some physical problems.
Ms Hayunga said that she had received a number of representations from the DPP about the appellant’s case. The day before the hearing, she had received two emails offering to drop the assault occasioning charges and substituting them with charges of common assault. One of the emails had indicated that, among other things, the prosecutor would not object to the tendering of photographs of a broken beer bottle and damage to the victim’s property, and that she could not withdraw the charge of assault – which was the grabbing of the arm that caused the bruising – but that any other injuries suffered by the victim would not be relied upon.
The emails indicated that the prosecutor would accept pleas of guilty for the common assault charge, in full satisfaction of the matter, and would withdraw the two counts of assault occasioning if guilty pleas were entered. It is noted that her actual words were:
She will accept pleas of guilty for the common assault charge in full satisfaction of the matter and will withdraw the two counts of AOABH if guilty pleas are entered.
The reference to “the” common assault charge – singular – is, I think, what has given rise to some problems of comprehension in this case.
Later that day, a further email was sent, in which it was said:
As per our brief conversation in court today, I have requested two replacement common assault charges. They are particularised as the grabbing of both the victims arms and pinning her down on the bed with his knee and the second assault is the grabbing of the throat.
I am meeting with the victim in the morning prior to the hearing so if you can get any instructions in relation to these reps please let me know as soon as you can.
Ms Hayunga sent the emails to the appellant, with the amended statement of facts which accompanied them, or one of them, asking him to consider them:
... for discussion in the morning.
Ms Hayunga asked to meet the appellant the next morning at 9:15am. Her recollection was that, prior to receiving the emails from the DPP, there had been an offer to plead guilty to one count of common assault. She had sent an email to the appellant on 25 November at 9.21 am, containing an attachment, stating:
Please see the email below from the prosecutor.
Ms Hayunga said:
I cannot immediately recall any proposal from the DPP to drop the two charges of assault occasioning actual bodily harm and replace them with one charge of common assault. She may have raised this in the course of discussion in September regarding your bail conditions.
My advice is that the proposal is certainly worth considering.
Although you have always maintained that you restrained Judy only while she was smashing bottles and crockery – and did so to prevent her from assaulting you, injuring herself and destroying/damaging more property – there is no guarantee of course that the magistrate will make that finding after a hearing.
If you were to take up the offer, the charge is much less serious and you would be entitled to a discount on penalty for an early plea of guilty.
If you wish, I can ask the prosecutor to send me a draft statement of facts so you can consider what would then be alleged. It would also be useful for you to look through the brief of evidence again, whatever you decide to do.
On 25 November at 10:12am, the appellant responded:
Helen I am very bad with understanding those terms that the dpp [sic] explained in that msg [sic]. But if they are offering me to plead guilty for a common assault, to drop everything else. Then yes I think that is the better way to go. Although I will always maintain my innocence I just want this to be over and if u [sic] think that that is better, than I will take that offer. As long as they don’t trick me when I’m in court and go back on the offer. I don’t really know how it works. But I just want the easier option. My depression and anxiety go through the roof when I have to go to court so if we can resolve it tomorrow by my admission of guilt to a common assault then that sounds good to me. And I would prefer that. Even though I am innocent. Please let me know if I am understanding it rightly [sic]. Thanks so much Helen and have a great day.
Ms Hayunga saw the appellant on the morning of the hearing. He was quite anxious, but this was not unusual in family violence cases. She asked the Magistrate for some time and the matters were stood down. She sat in the foyer of the Court with the appellant, and they looked at the amended statement of facts. At her request, he wrote on the front of that document:
I, Jerome Ayala, instruct Legal Aid ACT that I will plead guilty to the fresh charges of common assault on these facts, as amended.
The appellant’s signature was placed below.
During Ms Hayunga’s evidence-in-chief, the appellant was shown the signed amended statement of facts. He said that he could not recall seeing it but agreed that the signature on it was his. Ms Hayunga told me that the appellant had an opportunity to ask her questions before he entered a plea of guilty. She recalled that he wanted the matter resolved. She had a clear recollection that the appellant was stressed by the proceedings and not up to a contested hearing. He and the victim were still together and he wanted to remain with her.
Ms Hayunga told the appellant that the maximum penalty for each assault occasioning was five years, but the Crown could elect to reduce the maximum to two years to have them dealt with summarily. The Crown, in fact, had exercised that option, with the effect that the maximum penalty for each was two years’ imprisonment. Even assuming 100 per cent accumulation, the total period of potential imprisonment had been four years.
Ms Hayunga wrote down the appellant’s instructions. She did not see anything to suggest that he did not know what he was doing. In advising him, she said that she had regard to the fact that she thought there was a reasonably strong prosecution case. It was not the best case, but it was sufficient for the Magistrate to find the appellant guilty on each count. She also took into account that, to a degree, the outcome would depend on how the witnesses performed.
She discussed this unpredictability factor with the appellant, as well as the lesser penalty that might be imposed if he were to plead guilty to lesser charges. Ms Hayunga had been served by the DPP with the brief of evidence. That brief had included a statement from the victim, who had been subpoenaed. She discussed the brief of evidence with the appellant. Although she could not recall having done so, she had no doubt that she would have discussed the elements that the Crown had to prove on each count with the appellant. The following evidence was given:
Anyway, you certainly led him to understand that there was a reasonable prospect he would be found guilty if he ran the case of assault occasioning because of the bruising in each case? --- Yes, but I think I would have advised him that it was bottom of the scale for that type of offence.
It was a very, very slight injury, slight bodily harm? --- Yes.
But enough? --- Yes.
Approximately 15 minutes after the matter was stood down, the appellant and Ms Hayunga returned to Court. Formal pleas were entered. Ms Hayunga did not feel that they had been under time pressure. She said that, if she had felt it necessary, she would have asked the Magistrate for more time. In answer to a question from me, she said that the identity of the Magistrate was not a consideration in deciding to plead guilty or in advising the appellant to plead guilty. Had the appellant not pleaded guilty, the Magistrate would have heard the case that day. The Magistrate then ordered the preparation of a PSR and a CADAS Report.
In late January 2015, when the reports arrived, Ms Hayunga had further dealings with the appellant. She sent the PSR and CADAS Report on to him for his comments. She did not recall the appellant taking issue with either report, although there might have been an issue taken about the assessment that he was not suitable for community service or periodic detention. When Ms Hayunga appeared at the sentencing hearing, she submitted to the Court that it ought to override the recommendation as to periodic detention. That submission was ultimately accepted.
It was months after the orders were made when Ms Hayunga learned that the appellant wished to withdraw his pleas. She then advised the appellant to lodge an appeal. She did not hear from him again.
Ms Hayunga was extensively and effectively cross-examined by Mr Emmerson. She gave evidence that negotiating with the DPP was a normal practice and could be initiated by an accused or by the DPP. She agreed that the appellant had maintained his innocence throughout, that some people say that they understand things when they really do not, and could not say whether the appellant was in this category or not. She agreed that people with PTSD and OCD could suffer debilitating effects and may self-medicate with alcohol. She understood that the variation of bail conditions, which required the appellant not to consume alcohol, had been harsh because he self-medicated with alcohol.
Ms Hayunga recalled the prosecutor in the Magistrates Court making the offer to reduce the charges but could not recall why that had occurred. She agreed that there was email correspondence the day before the hearing suggesting that the DPP would agree to drop the two main charges and run only one charge of common assault. She did not, however, agree that, from the amended statement of facts, the appellant would not have been able to work out that there were, in fact, two charges, rather than one, being proposed. She said that there are, in fact, two discrete events covered by the amended statement of facts. She was challenged by Mr Emmerson as to how the appellant could have read the amended statement of facts if she was also explaining them to him, but she said that this had occurred on a bench outside while they were waiting to return to Court.
Ms Hayunga agreed that her recollection of that discussion was vague. However, she said that she believed that the appellant had read the document, sat with her and signed it to that effect on the cover sheet. She pointed out that the cover page referred to the two assaults. There was an occasion in the courtroom when the appellant had been asked how he pleaded in relation to each charge. He had said guilty to the first charge and, in the transcript, the word “indistinct” appears for the second. I was told that both Mr Lee and Mr Emmerson had listened to the tape of the proceedings and they told me that nothing at all could be heard from anyone when the appellant was asked how he pleaded to the second charge. That fact was an agreed fact in these proceedings. I was told today, however, that Mr Emmerson had asked the transcribers to listen to the tape and they had given him a report of it.
It appears that the transcribers listened to the tape and said that a sound could be heard after the appellant was asked how he pleaded to the second charge, but the sound was indistinct. That additional information was another agreed fact. The Magistrate has clearly proceeded as if the appellant had said guilty to the second charge.
Ms Hayunga was asked in cross-examination about this exchange. She said that she believed that he had said that he was guilty when asked about the second charge or “something would have happened about that”. When her attention was drawn to the election by the DPP to proceed summarily, she said that she would never have told the appellant that he faced a five year sentence for each charge because the maximum would have been two years for each.
The Crown also called Mr Guy, to whom I have earlier referred, who prepared the PSR. He said that it was his practice to take the client through the agreed facts and that his notes strongly suggest that he had done that with the appellant. He had the original agreed facts document and the amended version in his file. Mr Guy’s notes indicated that the appellant had disagreed with the original version of the statement of facts.
Mr Guy understood the appellant to have agreed with the amended statement of facts. He said that if he had concerns about the appellant’s understanding of the document, he would have asked him more questions about it. However, he had no such concerns. He could not recall there being any indication that the appellant had difficulties comprehending the document. Mr Guy was not of the view that the appellant had just agreed with the amended statement of facts because he did not want to be there.
I accept Mr Guy’s evidence. I am satisfied that, if he had any suggestion from the appellant that he did not agree with the amended statement of facts, he would have noted it.
In submissions, Mr Emmerson said that the appellant maintained that he was under stress at the time he pleaded guilty. He said that the pleas of guilty were entered under duress, in circumstances where the appellant had not read the amended facts document and did not understand he was pleading guilty to two charges. Mr Emmerson said that the appellant was an artistic type who tends to focus on different things from other people, so he is more inclined to sign things without reading them.
Mr Emmerson said that the state of duress was not imposed by a particular person, but from circumstances, including the pending Court proceedings, the appellant’s inability to drink alcohol to help with his PTSD and the appellant’s PTSD itself. He submitted, accordingly, that there had been a miscarriage of justice. He drew my attention to the fact that the appellant had previously been in custody and had thought, on that occasion, that he would need to plead guilty to avoid further custody. The same concern was in the appellant’s mind in this matter.
Mr Emmerson initially submitted that Ms Hayunga’s advice was imprudent and inappropriate. However, I understood him to withdraw from that position to some degree in oral argument. He was critical of the negotiations taking place behind the appellant’s back. However, as I put to him in argument, it is an everyday occurrence for the DPP to offer lesser charges, and this occurs between lawyers and is sometimes initiated by the DPP. It appears that Mr Emmerson was not aware of this fact. Of course, a lawyer must tell a client when negotiations do occur, as Ms Hayunga did in this matter. I am satisfied that Ms Hayunga told the appellant as soon as reasonably possible after the offer had become clear to her.
I do not accept the criticism that Ms Hayunga should have phoned the appellant to make sure that he got her emails. It was also suggested that she was to be criticised for ignoring the appellant’s concern that the DPP might “trick” him and that he was pleading to one count and not two. However, there is no evidence to suggest that Ms Hayunga ignored anything to do with his case. The mere fact that she did not respond specifically to those matters does not suggest that she ignored his concerns.
Ms Hayunga was also criticised for not recognising that the DPP had, to use Mr Emmerson’s words, destroyed much of its case. However, I am satisfied that this suggestion was based on a misunderstanding of the agreement to lay less serious charges. The DPP was merely conceding that it might have problems proving certain injuries had arisen from the alleged assaults, so would accept pleas to lesser charges.
I am of the view that Ms Hayunga’s advice was good and perfectly normal and conventional advice, of the type which lawyers give every day.
I reject the suggestion that police only charged the appellant because of his record. There was no evidence of that and that can only be a matter of speculation. In any event, I am satisfied that there was sufficient evidence available for the Crown to prove both charges.
I have considered the appellant’s submissions but I have come to the view that this application must be dismissed.
There is a single test which applies to all cases where an accused person wishes to withdraw a plea. The question to be asked in such a case is: would there be a miscarriage of justice if the plea were not permitted to be withdrawn? See R v Gomez [2007] ACTCA 21; 1 ACTR 145.
In Meissner v The Queen (1995) 184 CLR 132 (Meissner) at 157, Dawson J said:
… a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. “(footnotes omitted)”
In Norveska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, the Court said at [23] – [24]:
Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client’s best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.
It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant “did not appreciate the nature of the charge or did not intend to admit he was guilty of it": see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption.
I do not consider that there would be any miscarriage of justice in this case if the application were refused. I am firmly of the view that the appellant entered pleas of guilty in full understanding of what he was doing, intending to plead guilty to both charges and having had the benefit of correct and accurate legal advice as to his position.
I observed Ms Hayunga being cross-examined. She made a number of appropriate concessions, did her very best to recall relevant events and had a reasonable good memory of them, although there were many things she clearly could not recall.
I considered also that, in the course of her cross-examination, she showed great sympathy for the appellant and his position. I have no hesitation in accepting her evidence on all significant matters, especially where her evidence differs from that of the appellant.
I accept that the appellant may now think that he did not plead guilty to two offences, or that he was not guilty. However, a plea of guilty does not require an accused to believe in his guilt: Meissner at 157. I also note that the appellant obtained a benefit from the plea, by obtaining a discount on the sentences imposed on him.
I do not accept the appellant’s evidence that he did not read the amended statement of facts. The statement is, for the most part, consistent with what he told police had happened. I am satisfied that he had ample time to read the amended statement of facts, having been given the opportunity by Ms Hayunga.
The transcript records Ms Hayunga telling the Magistrate that the appellant was, at that time, reading the amended statement of facts. That is not conclusive evidence, but it is consistent with Ms Hayunga’s assertion that the appellant had the opportunity to read the document. I am satisfied that, when he signed the document, the appellant knew full well that he would be bound by his conduct in signing it, and that he was pleading guilty to the two lesser charges – namely, common assault – which were separately described on the outside of that document.
I am satisfied that, having seen him being cross-examined on two separate occasions, the appellant has a very good comprehension of English and is an intelligent man. I have no doubt that he suffers from PTSD and other conditions, and that he consumes alcohol as a way of dealing with his problems. Exhibit 1, tendered today, states that the appellant has a history of depression going back many years. However, as the Crown notes, there is no medical evidence to suggest that his condition has affected the appellant’s comprehension, or that it did so at the time of these events.
I have no doubt that the appellant understood what he was doing when he gave instructions to enter a plea of guilty. I consider that there was no inducement, no intimidation, and no fraud or duress; although I have no doubt that the occasion was extremely stressful for him.
As to the appellant’s allegation that he thought that he was only pleading to one charge, the email from the Crown provided a ground for that belief. However, that confusion was, it seems to me, cleared up, and overwhelmingly so, when the emails are read in context, especially with other contemporaneous documents. They show that the appellant was pleading to two charges.
The transcript indicates that the appellant was asked how he pleaded to the two charges. I have noted the problem with the transcript, but I am satisfied that, had the Magistrate thought that the appellant was not pleading guilty to the second, she would not have proceeded. A plea of guilty to the two offences is recorded in the bench sheets and there were, of course, others in Court to witness the taking of the pleas. There was never any suggestion that the appellant complained to Ms Hayunga or said anything to her about the fact that he did not understand what he was doing at the time. It is also of some significance that he told the author of the PSR, as I am satisfied he did, that he agreed with the facts.
I am further satisfied that there was evidence available to the Crown, on each charge, on which the appellant could have been convicted, had he pleaded not guilty. As to the first alleged assault, there was evidence of an injury to his partner which was observed by police and the police doctor. The second alleged assault was slightly different; there was evidence that both the victim and the appellant had misbehaved. The victim conceded that she had thrown things on the floor and broken them and the appellant conceded that he grabbed her – although he says that it was either in self-defence or to protect her from falling on glass.
Although both the victim and the appellant misbehaved in the course of the second incident, it would have been open to the Court to accept that the appellant had assaulted the victim and that she had received an injury. It is not without significant that the appellant has been charged before, for other offences, and so he would have had a reasonable understanding of court proceedings by the time these charges were laid.
I am satisfied that Ms Hayunga gave the appellant good advice, put him under no particular pressure and was well-prepared to appear for him on a defended basis on both charges, had he decided not to plead guilty. The advice that he might be found guilty was, I consider, correct advice. It was also correct to advise him that he would receive a lesser sentence if he was found guilty on a plea, than after a hearing.
I accept the appellant’s evidence that he intended to plead not guilty right up to the date of the hearing and that he felt under great pressure on the day. However, it is clear to me that he wanted to be reconciled with his partner. She had been summonsed by the Crown as the main witness against him. Ms Hayunga would have had to cross-examine her and put some unpleasant suggestions to her about her credit had the matter proceeded. It was understandable that the appellant would have wanted to avoid the confrontation.
I accept the appellant’s evidence that he had been greatly troubled by not being able to drink for some months, as a result of his bail conditions. I accept that this had the effect that he had, for some time, lacked a form of self-medication to assist with his PTSD.
Dawson J’s explanation as to why some people plead guilty is particularly apt. The appellant wanted to save trouble for himself and his partner. He wanted reconciliation. He wanted to prospect of a more lenient sentence. I am satisfied that he received those benefits. The grounds of appeal have not been made out. I dismiss the application and the appeal and I confirm the convictions and the sentences.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: 26 April 2017 |
I conclude by directing the appellant to report to the intake officer of ACT Corrective Services at Eclipse House, 197 London Circuit, Canberra City by 4:30pm on 22 March 2016.
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