Bray v Police - [2005] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRAY v POLICE
Judgment of The Honourable Justice Gray
22 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
Appeal against conviction and sentence - appellant pleaded guilty before Magistrate to two counts of assault - appellant convicted - compensation order made - appeal lodged out of time - extension of time in which to appeal sought.
Discussion of principles regarding withdrawal of guilty pleas - consideration of absence of legal representation for an accused in criminal proceedings - consideration of appeal against penalty.
Application for extension of time to appeal refused.
Criminal Law Consolidation Act 1935 (SA) s 39(1), referred to.
Meissner v The Queen (1995) 184 CLR 132; Marchando (2000) 110 A Crim R 337; Cooling v Steel (1971) 2 SASR 249; Platcher v Joseph [2004] FCAFC 68; MacPherson v The Queen (1981) 147 CLR 512; R v Grey [2001] SASC 428; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

BRAY v POLICE
[2005] SASC 270
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction and sentence.
Lawrence Howard Bray, the appellant, was charged that on 14 June 2004 at Hayborough he assaulted Jean Pearce contrary to section 39(1) of the Criminal Law Consolidation Act 1935 (SA). He was further charged that on the same date and place he assaulted David Pearce contrary to the same section.
The matters first came before the Magistrates Court on 1 November 2004. On that occasion the hearing was adjourned for a pre-trial conference. On 8 December 2004, at the pre-trial conference, as recorded on the court file, Mr Bray was told that it was in his interests to obtain legal advice. It was also noted that Mr Bray admitted to kicking David Pearce but that he claimed to have acted in self-defence. Prosecution statements were provided to Mr Bray. A trial date was set.
On 9 February 2005 the matter came on for trial. An affidavit of the police prosecutor, Peter John Fuss, sets out what occurred:
Prior to the trial being called on, I had discussions with the appellant, the appellant’s wife and an acquaintance of the appellant. During these discussions the appellant indicated that he wished to plead guilty to the charges. I advised the appellant that if he entered guilty pleas the respondent would seek convictions for the offences and ask for compensation in the amount of $378.00 for damage to the victim’s glasses and witness fees for attending for the trial this date [sic]. The appellant advised me that he agreed with this proposition to resolve the matter.
The matter was then called on. I advised His Honour that there had been discussions with the appellant, and on the basis of those discussions I understood that the appellant wished to enter a guilty plea.
His Honour then advised the appellant of the serious nature of the offence and queried whether the appellant wished the matter be adjourned so that he could seek legal advice.
I recall that whilst we were still in the courtroom, the appellant had further discussions with his acquaintance regarding his intention to plead guilty to the charge. I advised the appellant and the acquaintance that the matter could be adjourned for the purpose of attaining legal representation if he wished.
The appellant then advised His Honour that he wished to have the matter finalised and would plead guilty that day.
The charges were read and the appellant entered guilty pleas to both counts.
Following Mr Bray’s pleas of guilty, the prosecutor made submissions outlining the police allegations. The respondent summarised those allegations in the following terms.
…[O]n 14 June 2004, the first victim, Mrs Jean Pearce, arrived home after a weekend away. Mrs Pearce’s house on Sinclair Street, Hayborough was for sale and had been open for inspection that weekend. …On arriving home, it was alleged that Mrs Pearce saw a sign attached to a street sign directly outside her house saying, “For sale, 26 Tolmer Ct - Open any time.” The second victim, Mr David Pearce, who is the husband of the first victim, moved the sign to the end of their block on Tolmer Court.
About ten minutes later, … Mr and Mrs Pearce heard loud knocking at their front door. Mrs Pearce opened the door and saw an angry looking man. [The man was Mr Bray]. The man asked Mrs Pearce if her husband was home. Mr Pearce came to the front door to see who was there. [Mr Bray] came inside the house and began pointing his finger at Mr Pearce’s face and standing very close to him. …[Mr Bray] was talking about the for sale sign that Mr Pearce had moved and said words to the effect of, “I’ll put my sign up again. It’s council land and if you take the fucking thing down, I’ll come and smash every one of your windows and watch out for your car as well.” While he was saying these things, [Mr Bray] was walking backwards towards the front door.
Once [Mr Bray] was outside, he punched Mr Pearce repeatedly about the head. Mr Pearce’s glasses were knocked off and damaged. Mr Pearce defended himself by putting his hands up to his face. As Mr Pearce was defending himself, [Mr Bray] began to kick Mr Pearce in the legs. While this was happening, it was alleged that [Mr Bray] said words to the effect of, “You old bastard. I don’t care how old you are. I will smash every window in the house.” Mrs Pearce tried to stand between Mr Pearce and [Mr Bray]. She was punched in the right shoulder. Mr Pearce told Mrs Pearce to go inside the house and call the police. [Mr Bray] left soon after.
Police attended and subsequently interviewed [Mr Bray]. [He] denied saying what was alleged. He denied hitting Mrs Pearce. [Mr Bray] said that Mr Pearce came at him with his fists swinging and that he slapped Mr Pearce. He said that was the only incidence of contact. He said that he was kicking and swinging only because Mr Pearce was coming at him.
The magistrate convicted Mr Bray. He then made the following remarks:
Mr Bray, we will note that you have apologised to Mr and Mrs Pearce and that you were apologetic for what happened on the day in question. I gather that they have accepted your apology and they have also accepted what the prosecutor said to day is correct, that you are unlikely to do this sort of thing again.
It is unfortunate that the event occurred at all but we cannot change the past events.
Mr Pearce has sustained damage to his glasses in the sum of $378 and I gather that you are not able to pay that amount along with any fine that might be imposed so I do think that the best way that your apology can be given practical effect is by you paying that amount of compensation to Mr Pearce. I think it would be a wrong application of principles if the court then were to go about imposing a financial penalty on you but I do think you ought to pay the court witness fees so what I am going to order is that you be convicted for both these counts but without further penalty.
I order that you pay the witness expenses, which total $52.
I also order, pursuant to Section 53 of the Criminal Law (Sentencing) Act, that you pay compensation in the sum of $378 to the Registrar of this court for transmission to Mr Pearce.
I waive the court fees and the prosecution fee. The levy is $140.
Following Mr Bray’s pleas of guilty, the magistrate recorded convictions on both counts. By those pleas, Mr Bray made a confession of the elements of each offence. In Meissner v The Queen,[1] Dawson J observed:[2]
The entry of a plea of guilty … 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.
[1] (1995) 184 CLR 132.
[2] (1995) 184 CLR 132 at 157 (footnotes omitted).
In Marchando,[3] the New South Wales Court of Criminal Appeal summarised the general principles related to the withdrawal of guilty pleas:[4]
The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599 … Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable: Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: Davies (1993) 19 MVR 481.
[3] (2000) 110 A Crim R 337.
[4] (2000) 110 A Crim R 337 at 338.
Mr Bray entered his pleas of guilty following the magistrate’s invitation to seek an adjournment to obtain legal advice. The police prosecutor reinforced this suggestion before Mr Bray entered his pleas.
The Appeal
Mr Bray appeared in person. Most of his submissions, both written and oral, recounted alleged circumstances that he claimed demonstrated that he was not guilty of the offences of which he had been convicted. He sought to tender statements from third persons about prior incidents. These were said to provide evidence of similar conduct on the part of the other parties involved in the incidents that led to his convictions.
To set aside convictions following pleas of guilty is a very serious matter. To do so erodes the principle of finality to litigation. Such an order would necessarily mean that the proceedings would need to be remitted for trial. Mr Bray has not put before this Court evidence that would justify such a course.
Mr Bray relied principally on two matters. Apart from asserting that he was not guilty of the offences, Mr Bray sought to tender two witness statements. This evidence was not fresh. The evidence addressed matters that had occurred prior to the time of Mr Bray’s pleas. In any event, the evidence is, at best, of little if any relevance. The evidence relates to prior incidents involving the Pearces and third parties. The other argument advanced by Mr Bray was that neither of the Pearces suffered any personal injury and as a result, there could be no assault. This submission misconceives the legal position.
When pressed to identify the grounds on which he should be permitted to appeal against conviction notwithstanding his pleas, Mr Bray claimed that the prosecutor had pressured him into pleading guilty. No adequate particularity, by way of affidavit or otherwise, was provided to support this serious allegation. Mr Bray appeared to be content to leave the matter at assertions made during the course of oral submissions. The unanswered affidavit of the prosecutor outlined the events that occurred.
There is nothing to suggest that Mr Bray did not appreciate the nature of the charges. He was advised to seek legal advice. The evidence suggests he intended to plead guilty. There was a body of evidence that would have supported a conviction to each charge. There is nothing to suggest any real risk of a miscarriage of justice.
Before this Court, Mr Bray complained that he had been disadvantaged through the lack of legal representation. It is well settled that if a court is considering ordering imprisonment, the court should so advise the defendant and give him an opportunity of seeking legal advice.[5] The relevant principles relating to dealing with unrepresented litigants are summarised in Platcher v Joseph.[6] That Court referred to a decision of the High Court, MacPherson v The Queen,[7] where Brennan J made the following observations:[8]
The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused’s case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. … What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.
[5] Cooling v Steel (1971) 2 SASR 249.
[6] [2004] FCAFC 68 at [104].
[7] (1981) 147 CLR 512.
[8] (1981) 147 CLR 512 at 546-547.
Mr Bray was permitted the opportunity to seek legal advice. He was informed that the hearing could be adjourned so that he could obtain legal representation. As such, the magistrate did all that was required to ensure that Mr Bray received fair treatment. As earlier observed, according to the police prosecutor, Mr Bray declined the invitation. If an accused elects to proceed without representation, as Mr Bray did, the trial or hearing can proceed without the accused being represented. As Lander J observed in R vGrey:[9]
In some circumstances, a party waives a right to have legal representation. Sometimes that is done expressly, sometimes it may be inferred. Where a party has expressly renounced the right to be represented and where that renunciation has not been brought about by collateral pressures, then a trial can proceed without that person being represented. In other cases it may be inferred because a party has not retained a legal representative, that party has also renounced a right to be represented.
[9] [2001] SASC 428 at [11].
In the circumstances it is not appropriate to grant leave to Mr Bray to withdraw his guilty pleas. There is no substance to his complaints. No basis has been established to justify a setting aside of the convictions.
Sentence
Mr Bray sought to challenge the penalty imposed by the magistrate. That penalty was at the lower end of the scale for the offending and was well within the discretion of the magistrate. No error of sentencing principle has been identified by Mr Bray. It has not been shown that the magistrate had regard to any irrelevant material or that he failed to consider any material circumstance.[10] The complaints concerning sentence are of no substance.
[10] House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321.
Application for Extension of Time
Mr Bray sought an extension of time within which to appeal. He claimed that he was not aware that an appeal was available, that he did not expect to be convicted and that he did not realise he was in a “third world country”.
If there were merit in the appeal an order granting an extension of time would be appropriate. As Mr Bray was unrepresented, counsel for the Crown did not oppose this approach. However, it was submitted that as the appeal had no prospects of success, an extension should not be granted.
Conclusion
This is a case where there is no substance to any of the proposed grounds of appeal. In the circumstances an order extending time should be refused. Were an extension granted, it would be appropriate to dismiss the appeal.