Cavuoto v Department of Transport, Energy and Infrastructure

[2008] SASC 163

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CAVUOTO v DEPARTMENT OF TRANSPORT, ENERGY AND INFRASTRUCTURE

[2008] SASC 163

Judgment of The Honourable Justice White (ex tempore)

12 June 2008

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES

Appeal against conviction following pleas of guilty - whether pleas of guilty entered voluntarily as an exercise of free choice - whether there has been a miscarriage of justice - whether extension of time to appeal should be granted.

Held:  appeal allowed - pleas of guilty entered when appellant was unrepresented and in a state of confusion - appellant suffering mental illness at the time the pleas were entered - respondent concedes that the integrity of the appellant's pleas is questionable - miscarriage of justice has occurred - extension of time to appeal granted.

Passenger Transport Act 1994 (SA) s 57; Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 (SA) reg 10, referred to.
R v Pugh (2005) 158 A Crim R 302; R v Brooks (2007) 96 SASR 478, applied.
Meissner v The Queen (1995) 184 CLR 13; Hinton v O'Dea (1977) 16 SASR 234; Salter v Seebohn (1972) SASR 192, considered.

CAVUOTO v DEPARTMENT OF TRANSPORT, ENERGY AND INFRASTRUCTURE
[2008] SASC 163

Magistrates Appeal (ex tempore)

1. WHITE J: The appellant pleaded guilty in the Magistrates Court on 16 May 2007 to two offences. Both offences were alleged to have been committed while the appellant was travelling on a train between Mile End and Adelaide. They were failing to comply with a request to state his name and address, contrary to s 57(2)(a) of the Passenger Transport Act1994 (SA) and using offensive language on a passenger vehicle, contrary to reg 10(4)(b) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 (SA).

2. By reason of the appellant’s pleas of guilty to these offences, the prosecution withdrew a third charge that the appellant had boarded a train without immediately purchasing a ticket, contrary to reg 4(3) of the same regulations.

3. The magistrate imposed a single penalty for the two offences, being a fine of $225 in addition to court and associated costs.  The appellant now appeals against his convictions for those two offences. 

4. The appellant’s appeal to this Court was not commenced until 30 April 2008, almost 12 months after the convictions in the Magistrates Court.  The time within which an appeal should be commenced is 21 days.  Accordingly, the appellant needs a substantial extension of time within which to commence his appeal.  The respondent concedes that an extension of time should be granted.  The respondent accepts that the appellant’s mental state and his financial circumstances since 16 May 2007 provide an adequate explanation for the appeal not having been commenced until recently.  The respondent also accepts that there are real issues about the integrity of the appellant’s guilty pleas which make it appropriate for the extension of time to be granted and for the appeal to be allowed.

5. The circumstances in which it is appropriate to allow an appeal against a conviction following a defendant’s plea of guilty are rare.  The relevant principles were reviewed by the Chief Justice in R v Pugh[1] and in R v Brooks.[2]  It is not necessary presently to repeat those principles.  The ultimate test is whether there has been a miscarriage of justice.

   [1] [2005] SASC 427; (2005) 158 A Crim R 302.

   [2] [2007] SASC 35; (2007) 96 SASR 478.

6. In determining whether or not there has been a miscarriage of justice, the Court takes into account whether or not the plea of guilty was entered voluntarily and as a result of an exercise of free choice.  Pleas of guilty should be entered without any influence upon the freedom of the defendant’s own mind to choose the plea which he will make.  See Meissner v The Queen;[3] Hinton v O’Dea;[4] and Salter v Seebohn.[5]

   [3] (1995) 184 CLR 13.

   [4] (1977) 16 SASR 234.

   [5] (1972) 4 SASR 192.

7. The appellant contends that he entered guilty pleas to the charges of the two offences outlined above at a time when he was unrepresented, in circumstances of distress and confusion and in circumstances in which he was suffering from a mental illness.  The evidence before this Court about the appellant’s mental illness is sparse.  However the prosecutor’s affidavit provides evidence that the appellant may have felt some pressure to enter the pleas.  The affidavit indicates that the guilty pleas were entered as part of a plea bargain.  As part of that plea bargain, the third charge alleging that the appellant had boarded a train without immediately purchasing a ticket was withdrawn.

8. The appellant had attended court on 16 May 2007 intending to plead not guilty to all three charges.  Before the matter was called on, the appellant rejected a plea bargain proposed by the prosecution.  He said that he intended to plead not guilty to all three counts and wished to have them heard and determined finally that same day.  That course was not possible.  That was confirmed by the magistrate when the matter was called on.  It seems that when the appellant learnt that the matter would have to be referred to a pre-trial conference before any trial listing, he became confused.  In that state of confusion he participated, at the suggestion of the magistrate, for a second time in a conference with the prosecutor.  This time he agreed to the prosecution proposal for the resolution of the matters which he had previously rejected.  As I have said, the respondent accepts that arising out of those circumstances there are real issues about the integrity of the appellant’s pleas of guilty.  The respondent concedes that a miscarriage of justice has occurred and that the appeal should be allowed.

9. Given the respondent’s concession, it is not necessary to analyse the circumstances which occurred in the Magistrates Court on 16 May 2007 in detail.  On the basis of the prosecutor’s affidavit and the concession by the respondent, I am satisfied that there are real issues about whether the pleas of guilty were entered in the exercise of a free choice.  I accept that despite the care taken by the magistrate to see that the appellant did understand the nature and effect of the pleas, he may not have done so. 

10. Accordingly, and, as I say, relying very much upon the concessions of the respondent, I am satisfied that a miscarriage of justice has occurred and that it is appropriate for an extension of time to be granted and for the appeal to be allowed.

1. The orders of the court are:

   1. The appellant is granted an extension of time to 30 April 2008 in which to commence his appeal.

   2. The appeal is allowed.

   3. The orders that the magistrate made on 16 May 2007 are set aside.

   4.The matter is remitted to the Magistrates Court for hearing before another magistrate.