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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coleman v Police

Details

AGLC: Coleman v Police [2020] SASC 66
Case: [2020] SASC 66
Decision Date: 30 April 2020

CaseChat Overview and Summary

In Coleman v Police, the appellant, a 26-year-old Aboriginal man, appealed against his conviction and sentence in the Magistrates Court of South Australia. The appellant had been charged with two separate instances of offending: assaulting his ex-partner and stealing money from a poker machine. The appeal centred on the appellant's claims that his pleas of guilty should not have been accepted by the Magistrate as he was not represented by legal counsel at the time, and that he was misled by the Magistrate about the consequences of his pleas. The Supreme Court of South Australia was tasked with determining whether there had been a miscarriage of justice in the acceptance of the appellant's pleas.

The court examined the legal principles surrounding the acceptance of pleas in the absence of legal representation and whether there had been a miscarriage of justice. The appellant bore the onus of proving a miscarriage of justice, which would necessitate overturning the conviction. The court considered the appellant's contentions against the court record and affidavit evidence from the appellant's former legal representative and the prosecution. The court found that the appellant had introduced the idea of pleading guilty himself, and that there was no evidence of inducement by the Magistrate. Moreover, the appellant had demonstrated a clear consciousness of guilt.

After a thorough analysis of the arguments, the Supreme Court of South Australia concluded that there had been no miscarriage of justice in the acceptance of the appellant's pleas. The court found that the appellant had not been misled by the Magistrate and that the pleas were entered with a clear understanding of the consequences. The appeal was dismissed, and the conviction and sentence remained intact.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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 timeDEFENDANT: 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.