Coleman v Police - [2020] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COLEMAN v POLICE
[2020] SASC 66
Judgment of The Honourable Justice Nicholson
30 April 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
A Magistrate convicted the appellant of the offences of assault and theft upon his pleas of guilty. The appellant’s solicitor withdrew from the file just before the appellant’s pleas were entered. The appellant indicated to the Magistrate in open court that he wanted to plead to the charges and “get it over and done with”. The Magistrate heard brief submissions from the appellant relevant to sentence, and sentenced him to five months imprisonment for the assault charge.
The appellant appeals against the convictions on the ground that his lack of legal representation when he entered the guilty pleas amounted to a miscarriage of justice.
Held:
1. There was no miscarriage of justice in the appellant’s pleas of guilt due to his lack of legal representation.
2. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20, s 134, s 269, referred to.
Tsavalas v Police [2016] SASC 103, applied.
Bray v Police [2005] SASC 270; R v Grey [2001] SASC 428; R v Inns (1974) 60 Cr App R 231; Meissner v R (1995) 184 CLR 132, considered.

COLEMAN v POLICE
[2020] SASC 66
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

The appellant, Jerome Coleman, appeals against his convictions for the offences of assault[1] and theft,[2] and the imposition of an intervention order prohibiting him from contacting a former partner, MR, except for telephone contact or text contact for the purpose of child access arrangements. Each of the assault and theft charges was laid by the prosecution in its basic or non-aggravated form.
[1] Contrary to subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to subsection 134 of the Criminal Law Consolidation Act 1935 (SA).
On 11 December 2019, a Magistrate sentenced the appellant to imprisonment for five months, backdated to 3 October 2019 for the assault charge. That sentence has now expired. The appellant was convicted on the theft charge with no further penalty. The initial grounds of appeal were:
1. that the appellant had not been represented;
2. that there had been a report ordered under section 269 of the Criminal Law Consolidation Act 1935 (SA) in relation to other matters before the Court but not received such that the issue of the appellant’s fitness to plead had not been established when he was sentenced for the present matters; and
3. in subsequent conversations with the appellant it was discovered that the appellant did not appear to understand to what offence he had pleaded.
Grounds 2 and 3 were later abandoned by the appellant.[3]
[3] The section 269 report has now been provided in the other matters and offers no support to an argument that the appellant was not fit to plead or instruct.
The notice of appeal was filed eight days out of time, but the respondent has indicated that there has been no prejudice caused by the delay and that it did not wish to be heard on the question of whether an extension of time should be granted.
Background
The appellant is a 26-year-old Aboriginal man who was charged with two separate instances of offending. The first occurred on 20 April 2019, when the appellant assaulted his ex-partner by punching her three or four times in the face with a closed fist and throwing a shoe at her. The victim and the appellant had previously been in a relationship for about two months. The second incident occurred on 28 May 2019, when the appellant stole $42 from a person using a poker machine. The victim, who was not known to the appellant, had been playing the machine but left it for a brief period after placing a “reserved” sign on the machine to ensure no one else would use it. When the victim returned, she observed the appellant using her machine by pressing the “cash out” button and obtaining $42 in cash, before leaving the hotel.
Magistrates Court proceedings
On 11 December 2019, the appellant appeared in the Magistrates Court, represented by a solicitor from the Aboriginal Legal Rights Movement. The appellant had appeared before the court on at least four previous occasions with respect to these charges but the matter had not been progressed. On each of these occasions the appellant had been represented by different solicitors from the Aboriginal Legal Rights Movement and had the opportunity to obtain legal advice. The appellant was not in custody on these charges on 11 December 2019, but was in custody on other matters.
During the hearing, the appellant’s solicitor withdrew from the file after the appellant indicated to the Magistrate in open court that he wanted to plead to the charges and “get it over and done with”.[4] The appellant insisted that he wanted the matter dealt with that day. The Magistrate informed the appellant that he “might receive a term of imprisonment” and that she was “likely, potentially to impose a period of imprisonment as a penalty” for the charges.[5] The appellant pleaded guilty to the two offences. With the consent of the appellant, an intervention order was also imposed to protect the appellant’s ex-partner, the victim of the assault offending. The Magistrate heard brief submissions from the appellant relevant to sentence, and sentenced him as earlier explained.
[4] Magistrates Court Transcript p. 3, 6 and 7.
[5] Magistrates Court Transcript p. 5-6.
The appeal
The single ground of appeal on which the appellant now relies is that the appellant was not represented in the Magistrates Court and that his pleas of guilt therefore should not have been accepted by the Magistrate. The appellant also contends that he was misled by the Magistrate about the consequences that would flow from the pleas and that the Magistrate induced the appellant to plead to the charges at the hearing on 11 December 2019.
The respondent contends that the ground of appeal as formulated is not a proper ground of appeal and should be struck out. The respondent submits that a defendant is entitled to be represented; and is entitled to not be represented. When the appellant’s legal representative withdrew, the Magistrate was careful to ensure that the appellant fully understood what he was doing before she would take his pleas. The respondent maintains that in electing not to retain a legal representative after his counsel withdrew from his file, it can be inferred that the appellant renounced his right to be represented.[6]
[6] Bray v Police [2005] SASC 270 at [16]; R v Grey [2001] SASC 428 at [11].
Further, it is clear from the transcript in the Magistrates Court that the appellant himself introduced the idea of pleading guilty on 11 December 2019.[7] The respondent also contends that there was no inducement by the Magistrate, and that the appellant pleaded with a clearly expressed consciousness of guilt.
[7] Magistrates Court Transcript p. 2-3.
Consideration
A conviction will be overturned on appeal where the circumstances in which the plea of guilt was entered involved a miscarriage of justice. The appellant must bear the onus of establishing a miscarriage of justice.[8]
[8] Tsavalas v Police [2016] SASC 103 at [14].
Tsavalas v Police[9] concerned an appeal against conviction where the unrepresented appellant pleaded guilty to the offences of contravening a term of a bail agreement and illegal use of a motor vehicle.
[9] [2016] SASC 103.
Doyle J found that the combination of circumstances in that case warranted a conclusion that there had been a miscarriage of justice. The appellant: had been unrepresented and had not obtained any legal advice prior to the hearing; had a potential defence on the facts to the charge of illegal use of a motor vehicle; intended to plead not guilty and (at least in relation to the breach of bail) informed the Magistrate of this position at the start of the hearing; had a relatively limited command of the English language; was addressed in very blunt and direct terms by the Magistrate which, bearing in mind the authority those observations by the Magistrate likely carried, left the appellant feeling unable to explain his factual “defence”; and did not appreciate, and did not have explained to him, the potentially serious consequences of a conviction for the offence of illegal use of a motor vehicle, including not only a term of imprisonment but also a mandatory licence disqualification for 12 months.[10]
[10] Tsavalas v Police [2016] SASC 103 at [45].
In the present case, the relevant exchanges between the Magistrate and appellant included the following:[11]
[11] Magistrates Court Transcript p. 2-8.
HER HONOUR:         Perhaps we can ask [the appellant]. [Appellant] these matters have been going on for a long time
DEFENDANT:           Yes, what matters are they.
HER HONOUR:         So, these are a charge of assault where the alleged victim is [MR].
DEFENDANT:           Is that a basic assault?
HER HONOUR:         Yes, [MR] is the victim.
DEFENDANT:           Can I just plead to that today and get it over and done with, if you can sort it out today.
HER HONOUR:   Just hang on, there is a theft charge for the 28 May and that is taking some cash from [MP].
DEFENDANT:     Yeah, I’ll plead to those charges.
…
HER HONOUR:   [Appellant] there are some options today… .
DEFENDANT:     Can you just sentence me and get it over and done with, please.
HER HONOUR:   Just understand this [appellant], just because you want to finalise it and finish it doesn’t always mean that is the best option for you. The reality is this, firstly you have to understand what the charge is, you have to understand it carries a maximum penalty for assault of two years imprisonment and you have to agree with the allegations that you punched [MR].
DEFENDANT:     I did do it, I plead guilty to it.
HER HONOUR:   If it is that you want to resolve it today the reality is that I am likely, potentially to impose a period of imprisonment as a penalty and that you will get an intervention order as part of your sentence.
DEFENDANT:     Yes. What is that.
…
HER HONOUR:   [Counsel], I am proposing that if [appellant] wants to resolve these matters to resolve them, he knows that he is going to get a period of imprisonment, he knows there is going to be an intervention order. The terms or the conditions we are just going to see if we make a phone call, but it might be non-contact which would mean the only contact you can have with her is through solicitor or police or including text messages or emailing just about access to the child, that would be it.
DEFENDANT:     Yes.
[COUNSEL]:I will be withdrawing from the file if that is the route that is taken.
HER HONOUR:   So, [appellant], [counsel] says that she is not able to help you if you are going to plead guilty which means you are going to have to do it on your own.
DEFENDANT:     Yes, I just want to plead guilty, I just put my hand up for what I have done. I just want to get it over and done with.
…
HER HONOUR: [Appellant], you indicated that you want to finalise these matters and you want to plead guilty. Your lawyer who was previously on the file … tells me that you in other matters are being assessed as to whether you are fit to plead, whether you understand the charges against you.
DEFENDANT:     Yes.
HER HONOUR:   Whether you understand what you were doing at the time.
DEFENDANT:     Yes, I understand that.
HER HONOUR:   In relation to these matters is there any enquiry that should be undertaken as to whether-.
DEFENDANT:     No, I just want to get them over and done with and finalised.
HER HONOUR:   But can I be assured that you understand the process, you understand the charge of assault.
DEFENDANT:     Yes.
HER HONOUR: And the allegations that you have punched [MR] several times.
DEFENDANT:     Yes, I understand that, I plead guilty to that.
It is clear from the above that the appellant understood the charges to which he was pleading. His question “is that a basic assault” is somewhat telling. Following further questioning by the Magistrate, he understood that the assault charge concerned the punching of his ex-partner, MR, and that the theft charge concerned the taking of cash from the operator of the poker machine. The appellant volunteered his wish to plead to the charges. The Magistrate explained the seriousness of the offences to the appellant, including the maximum penalties, and reiterated that if the appellant was is in any doubt, he was not to enter the pleas.[12]
[12] Magistrates Court Transcript p. 8.
Her Honour also stated at the hearing that:
[I]t might be that if he [the appellant] pleads guilty to the assault, he is going to receive an immediate term of imprisonment, but it might be that that can start from the date he went into custody… so, it could commence from the 3 October and it might be that there will be a potion towards this matter and the remaining time in custody will be for his major indictable.[13]
Counsel for the appellant has argued that this last sentence gave the appellant the impression that any sentence imposed would require him to spend appreciably less time in custody than in fact turned out to be the case.
[13] Magistrates Court Transcript p. 4.
However, when the Magistrate’s statement is considered together with the other statements made by the Magistrate at the hearing, including the Magistrate’s reminder to the appellant that the maximum penalty for the assault charge is two years imprisonment, and that she was likely to impose a period of imprisonment, the appellant should have realised that he might well be sentenced to a period of imprisonment greater than the period of time between 3 October 2019 (when he was first taken into custody) and 11 December 2019 (the day of sentence).
Further, when the Magistrate reminded the appellant of the maximum penalty of two years imprisonment which the assault charge carries, the appellant immediately responded, “I did do it, I plead guilty to it”.[14] It is apparent that as well as wanting to get the matter “over and done with”, the appellant also wished to take responsibility for what he had done: “Yes, I just want to plead guilty, I just put my hand up for what I have done.”[15]
[14] Magistrates Court Transcript p. 6.
[15] Magistrates Court Transcript p. 7.
Counsel for the appellant submitted that the Magistrate induced the appellant to enter into a plea for the charges. When considering inducement, the basic principle is as stated in R v Inns[16] and applied in Meissner v R:[17]
The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea…
[16] (1974) 60 Cr App R 231 at 233.
[17] (1995) 184 CLR 132 at 141-142 (per Brennan, Toohey and McHugh JJ).
Where a plea of guilty is entered in purported exercise of a free choice to serve the person’s own interests, but the plea has been procured by pressure and threats, then there is a miscarriage of justice because the court has been falsely led to dispense with a trial on the faith of a defective plea. However, in this case, I am satisfied that the appellant entered his pleas voluntarily, free of any pressure or threat. The appellant has failed to demonstrate that there was any miscarriage of justice in this respect.
The appellant was legally representated over several months prior to the hearing before the Magistrate. He had been afforded and had accepted an opportunity to receive legal advice.[18] The appellant was likewise entitled to proceed unrepresented, and the withdrawal of legal representation before the appellant entered his pleas is not, in isolation, a ground which can justify appellate interference.
[18] Tsavalas v Police [2016] SASC 103 at [32].
There has been no miscarriage of justice in the appellant’s pleas of guilt due to his lack of legal representation. I make this finding due to the following features present in this case:
1. the appellant volunteered, and introduced to the proceedings, that he wanted to plead guilty to the charges;
2. the evidence does not support the contention that the appellant was misled by the Magistrate, nor that he misheard what he was told, in relation to the probable consequences of his guilty pleas; and
3. the evidence shows that the appellant was free to make a choice concerning his pleas to the charges and that he was expressly warned by the Magistrate that if he was in any doubt, he should not enter a plea. He freely chose to enter pleas of guilty for each charge nonetheless.
I have dealt with appellant counsel’s contentions at some length. However, no evidence, by affidavit or otherwise, was adduced from the appellant as to the fact that he was misled into pleading guilty by an inducement offered by the Magistrate nor as to the nature of any defence he proposed to pursue with respect to either charge should he be allowed to withdraw his pleas. This lack of direct evidence meant that the matter could only be determined on the basis of the court record and the affidavit evidence of the appellant’s former legal representative and of the prosecution. None of this lent any support to the appellant’s contentions.
Conclusion
There has been no miscarriage of justice and I dismiss the appeal.