Brown v The Queen - [2008] NTSC 14

Brown v The Queen [2008] NTSC 14
PARTIES:BROWN, Leigh Francis
v

THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING GENERAL JURISDICTION
FILE NO:20702873
DELIVERED:  28 MARCH 2008
HEARING DATES:  25 & 28 MARCH 2008
JUDGMENT OF:  ANGEL J
REPRESENTATION:
Counsel:
Applicant:C McDonald QC
Respondent:  M Thomas & E Farquhar
Solicitors:
Applicant:Robert Welfare
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ang200803
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Brown v The Queen [2008] NTSC 14

No. 20702873
BETWEEN:

LEIGH FRANCIS BROWN

Applicant

AND:

THE QUEEN

Respondent

CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 28 March 2008)

This is an oral application for leave to withdraw a plea of guilty to a charge of aggravated unlawful assault contrary to s 188(1) and (2)(a) Criminal Code (NT) entered by the applicant upon his arraignment before Eames AJ on 20 November 2007.
The history of the matter is as follows.
On 16 July 2007 the Crown filed and served an indictment charging the applicant with aggravated unlawful assault the circumstance of aggravation alleged being that the victim suffered serious harm contrary to s 181 Criminal Code (NT). A five day trial was listed to commence on 19 November 2007.
On 29 October 2007 the trial date of 19 November 2007 was confirmed before Riley J.
On 9 November 2007 Mr Read then counsel for the applicant indicated to Eames AJ that the matter may be disposed of by way of a plea, a plea on disputed facts or a trial. The matter was listed for further mention on 13 November 2007.
On 13 November 2007 Mr Tippett QC then counsel for the applicant indicated to Eames AJ that there was no need for a trial but the matter would proceed as a plea on disputed facts. It was listed for hearing on 20 and 21 November 2007.
On 20 November 2007 the applicant was arraigned on a fresh indictment of that date charging the applicant that on 14 January 2007 at Adelaide River in the Northern Territory of Australia he unlawfully assaulted Dale John Smith aggravated by the circumstance that Dale John Smith suffered harm contrary to s 188 (1) and (2)(a) Criminal Code (NT). To that charge the applicant pleaded guilty. The Crown facts were read to the court and formally admitted by Mr Tippett QC on behalf of the applicant. A victim impact statement, the applicant’s prior criminal history and certain photographs were tendered in evidence on the plea. Submissions were heard and character references tendered to the court on behalf of the applicant. At the conclusion of the hearing the matter was adjourned to 28 November 2007 for sentence.
On 28 November 2007 Mr Tippett QC and Mr Read sought and were granted leave to withdraw from the record their instructions having been withdrawn.
As is apparent from the transcript of proceedings on 28 November 2007, Eames AJ, having apparently read the evidence given at earlier committal proceedings, questioned the unrepresented applicant on matters beyond the agreed Crown facts which were the basis of the plea taken on 20 November. In the course of the exchange between Eames AJ and the unrepresented applicant the applicant said he wanted to plead not guilty and strongly contested certain allegations that apparently arose from evidence of the victim given at the committal. Additionally Eames AJ referred to the applicant’s demeanour before him and made adverse reference to the applicant’s lack of remorse, matters to which the applicant had no proper chance to respond.
In the course of the hearing of 28 November 2007 the following exchange took place :
HIS HONOUR:
“As I’m presently minded, the findings of fact I’m likely to make are the ones that I’ve described to you. In other words, that you were provoked but it was not intentionally so. But the remarks that you heard were such as to understandably cause you to be very upset because had they been in those terms and directed to your grandson, they would be very upsetting to anyone, all right? But I’m not going to make a finding unless you want to argue to the contrary, that Mr Smith intentionally did so and intentionally used the language that you’ve described.
Now, that’s important for a few reasons, Mr Brown. One is, as I said to your counsel on the last occasion, you’ve shown absolutely no remorse for what you’ve done to Mr Smith and that’s a very important consideration when it comes to sentencing.
And I’m wanting to point out to you, because I know that you and Mr Smith live very close to each other, that whatever be my sentence that I hand out, you’re going to have to go on living close together. And it seems to me you have never allowed for the possibility that you might have got it a bit wrong. That being so, you’ve maintained your rage, as it were, since that time.
That’s not helpful either to you in sentencing or in the long term for your living within the community and in close proximity to Mr Smith who, as you will be aware, has made a victim impact statement saying that he and his family are frightened of you. And that’s a very unsatisfactory situation and especially if it’s something which is built on a misunderstanding on your part to a large or small extent, then it would be very wise if the misunderstanding was removed and you acted in future with that state of belief, not on a mistaken belief. So that’s the first thing I wanted to say.
The second thing I wanted to say was that in the submissions that were put to me it was said that the only remaining symptoms that Mr Smith had were blocked nostril and numbness to the right cheek. When he gave evidence in the committal on 28 June of this year, he described himself as still being unable to eat steak and obviously having some continuing difficulty in his jaw. Now, I don’t know what – and at that time too he appeared to still be suffering some degree of pain. So the symptoms, it seemed to me, might – at least as at June had not subsided and were still continuing, and that was the second factor that I wanted to raise.
Now, I’ll just pause there and I’ll invite you, Mr Brown, if there’s anything you want to say – and you don’t have to say anything if you don’t want to. But if there’s anything you want to say in response to what I’ve just said to you.
MR BROWN: Yes, your Honour. I wish to challenge this case and fight it. I’ve always wanted to do that. I had advice not to do that. Last week when we came here, the agreed upon facts I hadn’t really heard. I don’t agree with those facts and I wish to challenge this matter.
HIS HONOUR: You mean you wish to plead not guilty to the case?
MR BROWN: Yes, your Honour.
HIS HONOUR: You have –––
MR BROWN: And I have stated that basically all the way along. However, I was advised to take the deal, da da da. However, I thought I was agreeing to the fact that I gave him a backhander, which I did. And in last week’s evidence the fact that it came out that I’d king hit this bloke, which I never did. These injuries did not happen at my house. And I think if you’ve read –––
HIS HONOUR: I have read that you behaved – it was put that there was a suggestion that it occurred somewhere else.
MR BROWN: Yes, your Honour.
HIS HONOUR: Well, Mr Brown –––
MR BROWN: That’s not at my suggestion either, your Honour.
HIS HONOUR: Mr Brown, you’ve pleaded guilty and I would not permit you to change your plea of guilty unless I was satisfied that the plea was made in circumstances where it would be unjust to oblige you to stand by the plea which you’ve made.
As you’ve just said, you said that you’d received legal advice prior to your plea of guilty. Whether or not you were unhappy with that advice, you plainly accepted it because you pleaded guilty in front of me.
MR BROWN: Yes.
HIS HONOUR: Mr Brown, it’s a matter for you. I want to say this: if you are now making application to me to change your plea, then I will hear that application and I will deal with it. There is a good deal of law which relates to the question about – that is legal principle as to whether a person who’s pleaded guilty is entitled to change his plea, so it’s not an automatic right.
You have to satisfy me that certain prerequisites have been made. At the moment I don’t see any basis for permitting a change of plea, but that’s a matter which you would have to address.
Plainly, what I’ve said as to the circumstances based on my reading of the transcript below is a matter which, if you’re going to seek to challenge the whole of the evidence and the whole of the plea and the whole of the facts which have been agreed upon as part of the plea, well, I will have to reconsider my position anyway in terms of sentencing even if I don’t permit a change of plea.
Do you follow that? One factor I would have to take into account now in dealing with a plea of guilty was the fact that you have again maintained a position which reflects no remorse whatsoever.
MR BROWN: Your Honour, I wish to challenge the actual facts.
HIS HONOUR: I can see that’s what you’re saying, Mr Brown. Whether you’ll be permitted to do so –––
MR BROWN: And I have done – I have wanted this all the way along.”
At the conclusion of the hearing on 28 November 2007 the matter was adjourned to allow the applicant time to obtain new legal representation.
On 6 December 2007 the applicant appeared by counsel Mr Powell instructed by the applicant’s new solicitor Mr Welfare. Eames AJ directed the applicant to inform the Crown by 4 pm the following day whether the matter was to proceed as an application for leave to withdraw the plea of guilty or as a plea on disputed facts. On 7 December 2007 Mr Powell informed the court that he was still obtaining instructions. On 10 December 2007 the matter was re–listed for hearing on 13 December 2007. The matter came on again before Eames AJ on 13 December when Mr Powell sought and was granted leave to withdraw from the record. Mr Welfare sought and was granted an adjournment in order to brief fresh counsel. The matter was listed for further mention on 31 January 2008.
On 31 January 2008 Mr McDonald QC appeared for the applicant before His Honour the Chief Justice. The Chief Justice directed the applicant to file and serve any application for leave to withdraw the plea of guilty and any affidavit in support by 15 February 2008. The matter was listed for hearing on 25 March 2008.
No written application for leave was filed nor was any affidavit material filed in compliance with the Chief Justice’s directions.
On 25 March 2008 Mr McDonald QC on behalf of the applicant orally applied for leave to withdraw the plea of guilty. It was submitted that in the circumstances a miscarriage of justice had occurred in that Eames AJ had gone beyond the agreed Crown facts as the basis for the plea, had, it was said, inappropriately asked questions of the applicant when self–represented, had inappropriately referred to the applicant’s demeanour in circumstances where he had no real chance to respond and breached the ideal of open justice in having his associate send an email to the parties’ legal representatives concerning issues said to have been raised by evidence given at the committal but extraneous to the Crown case on the plea.
It was submitted that in light of the exchange at the hearing of 28 November between Eames AJ and the self–represented applicant recited in paragraph [10] above, Eames AJ was duty bound to direct that a plea of not guilty be entered on the record. In support of this contention counsel cited the following passage from the judgment of Dawson and McHugh JJ in Maxwell (1996) 184 CLR 501 at 511:
“If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered”. (Citations omitted).
It is apparent from reading the transcript of 28 November that the self–represented applicant was in substance denying a case put to him by the Judge based upon evidence given at the committal. Whilst it is true the applicant said he intended to plead not guilty all along that statement was made in the context of incriminatory matters not alleged by the Crown on the plea which the Judge was putting to the applicant and which the Judge had gleaned from the committal proceedings. In as much as there may be any ambiguity about the matter, I invited Mr McDonald QC to call his client to give evidence. That invitation was declined.
Prior to the exchange of 28 November there was nothing to suggest to the Judge that the plea of guilty entered on 20 November was other than genuine. On 20 November His Honour accepted that the applicant was criminally responsible for the offence to which he had pleaded guilty. The whole case proceeded on that day on that basis. There was nothing to indicate that the applicant did not appreciate the nature of the charge to which he had entered his plea of guilty. There is no evidence to undermine or contradict the integrity of the plea entered as an admission of guilt. There is no suggestion of erroneous or inadequate advice. There is nothing to suggest that the plea was entered as anything other than an exercise of free choice in the applicant’s interest. There is no real question about the guilt of the applicant. He said to Eames AJ that he had assaulted the victim – “I gave him a backhander”.
Mr McDonald QC submitted that the basis of the application was a miscarriage of justice evident from the transcripts of the hearings of 20 and 28 November 2007 and the email sent by the Judge’s associate to the legal representatives of the parties. Whilst the transcript discloses arguable grounds for the Judge to have disqualified himself from further hearing the matter, there is nothing to suggest a miscarriage of justice would occur if the applicant is held to his plea of guilty and that is the test: R v Brooks (2006) 95 SASR 369 at [41], on appeal (2007) 96 SASR 478 at [84]. In short, there is nothing in the interests of justice to allow a change of plea in the present case. The onus of proof is on the applicant to show that there would be a miscarriage of justice if he is held to his plea. That onus of proof has not been discharged in the present case. As I have said, the applicant declined to give evidence in support of his application.
Although Eames AJ was part–heard in the matter he is no longer available to continue with the matter.
In the circumstances there will be the following orders:
(i)Application for leave to withdraw plea of guilty dismissed.
(ii)Case referred to Criminal Registrar for re–listing for hearing of submissions on the plea.
Some discussion took place as to how the matter should proceed if the applicant’s application were dismissed. It seems to me at the present time that the matter might proceed as follows: The plea of guilty to stand as accepted, the Crown by consent to proceed on the previously agreed Crown facts or if the applicant no longer admits those Crown facts to proceed as on a plea of guilty on disputed facts. Of course it will be a matter for the judge at the renewed hearing as to how the case is conducted hereafter.
I shall hear the parties as to any further orders or matters.
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