Director of Public Prosecutions v Khsheibon (Ruling)
[2017] VCC 2070
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-00350
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIRYIS KHSHEIBON |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November; 1,13 December 2017 | |
DATE OF RULING: | 21 December 2017 | |
CASE MAY BE CITED AS: | DPP v Khsheibon (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2070 | |
REASONS FOR RULING
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Subject:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Kilduff | Stary Norton Halphen |
| For the Defendant | Ms R. Champion | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for change of plea by the Applicant Jiryis Khsheibon, in relation to an indictment containing four charges: making a threat to kill; causing injury intentionally; and two charges of possessing a drug of dependence.
Procedural history
The procedural history is as follows.
On 23 March 2016, the Applicant was charged and remanded in custody. On 17 June 2016, at a Committal Case Conference, the matter was listed for a contested committal hearing to take place on 19 October 2016. The committal did not proceed on 19 October 2016 and was adjourned for a further contested committal hearing on 24 February 2017.
On 24 February 2017, the matter resolved without witnesses being cross-examined. The Applicant entered a plea of guilty to the following charges: making a threat to kill; causing injury intentionally; possessing a drug of dependence (methylamphetamine); and possessing a drug of dependence (heroin). As part of the negotiated resolution, other charges were withdrawn. An application for bail was made before the committal magistrate and bail was granted. The matter was listed for a plea hearing in the County Court on 21 June 2017.
On 21 June 2017, the Applicant failed to appear. A warrant was issued. The Applicant was arrested on the same day and brought before the judge who was to hear the plea. Ultimately, the case was adjourned for mention on 21 August 2017 in order to fix a new plea date. The Applicant was remanded in custody and was not arraigned on the plea indictment.
On 21 August 2017, the matter was fixed for plea on 14 September 2017.
On 14 September 2017, a plea hearing commenced before His Honour Judge Taft. The Applicant was arraigned and pleaded not guilty. As a result, the Applicant’s counsel, Mr Polak, asked if he could approach the dock. Following what His Honour described as an ‘extended conversation’ with Mr Polak, His Honour was told that the Applicant intended to plead guilty to the charges on the indictment.[1] However, His Honour was still concerned and had the matter stood down in order for the Applicant to have further discussions with his counsel.
[1] Plea transcript 1-2.
Following a short adjournment, his Honour asked Mr Polak if the Applicant had been taken through the prosecution opening. Mr Polak replied ‘many times’, however informed His Honour that the Applicant did not agree with all the facts in the opening.[2] The Applicant was arraigned again and pleaded guilty to the four charges on the indictment and admitted his prior convictions.
[2] Plea transcript 2-3.
As the prosecution opening was being read in open court, the Applicant interjected from the dock by saying ‘it’s all lies’.[3] The matter was further stood down. Upon resuming in the afternoon, counsel for the Applicant asked if the matter could proceed the next day. Counsel informed His Honour that there were further matters to discuss with the Applicant before the plea could proceed.
[3] Plea transcript 6.
The following morning, 15 September 2017, the matter came back before His Honour. Mr Polak informed His Honour that he and his instructor had had further discussions with the Applicant on 14 and 15 September and told His Honour that the matter was in a position to proceed.[4]
[4] Plea transcript 13.
The prosecutor commenced reading the remainder of the prosecution opening in open court. During the course of the plea, a psychological report prepared by Mr Jeffrey Cummins was tendered together with a neuropsychological report which had been prepared by Dr Linda Borg at an earlier time for an unrelated matter. Further submissions were made on behalf of the Applicant and the matter was adjourned for sentence.
On 19 September 2017, the matter came before His Honour for sentence. At the commencement of the hearing, the Applicant again interjected from the dock indicating that he had pleaded guilty when he did not intend to. After allowing the Applicant to speak from the dock His Honour decided to adjourn the matter till the next day in order for Mr Polak and his instructor to seek further instructions.
On 20 September 2017, the Applicant’s solicitor Mr Reynolds, appeared and advised the court that his instructions to act on behalf of the Applicant had been withdrawn and he sought leave to withdraw from the matter. His Honour granted leave and excused Mr Reynolds. A representative from newly appointed solicitors also appeared at the hearing indicating that they were now acting on behalf of the Applicant. After making orders for the filing of any affidavits in support of an application for change of plea, His Honour adjourned the matter for a change of plea application to be heard on 30 November 2017.
Summary of offending
The prosecution opening as presented at the plea by the prosecutor may be summarised as follows.
On Saturday evening, 19 March 2016, the victim was working as a street sex worker in St Kilda. At approximately 6:30am on 20 March 2016, the victim was approached by the Applicant. After discussing the victim’s fees, the Applicant and the victim came to an agreement for oral and vaginal intercourse for $100. The victim and the Applicant travelled via taxi to the Applicant’s apartment in Windsor. CCTV captured the victim and the Applicant travelling to the applicant’s floor at 7:06am. The Applicant asked the victim if she used drugs, to which she replied that she was a long-time heroin user. The Applicant indicated to her that he had marijuana, ice and heroin in the apartment. The Applicant collected a box next to his television and proceeded to remove bags containing drugs.
The Applicant proceeded to smoke ice in front of the victim and showed her how to use it. She told the Applicant she had never used ice before. The victim asked him if she could have some heroin. The Applicant provided her with the drug and a syringe. Both also proceeded to use cannabis. After consuming the heroin and smoking cannabis, the Applicant asked the victim if she wanted to ‘do the job’. They removed their clothes and the victim performed oral sex on the applicant for 10 minutes before they both engaged in penile-vaginal intercourse for 20 minutes. The Applicant offered the victim more heroin and she again used a syringe to inject herself. She then got dressed before asking the Applicant for the $100.
The Applicant initially replied that the money was in his trousers which were on the floor. The victim repeatedly asked him where it was and if she was going to get it. After another 10 to 15 minutes she again asked him for the money. By this stage it was about 3:30 or 4:00pm. The Applicant suggested that he had already given her the money and suddenly became agitated and angry.
The victim suggested that the Applicant had cheated her and again asked him for the money, at which point, he shoved her to the floor. The Applicant was angry and as she tried to stand he again pushed her down. The victim told the Applicant to calm down and not use any more ice. He ignored her and returned to the lounge room and began smoking more.
The Applicant then began accusing the victim of stealing his drugs and his money. The victim did not know what he was talking about, pointing to the drugs on the table and noting that he had not paid her. The victim states that the Applicant then appeared to snap. He came up very close to her, removed a black band from her hair and threw it on the floor. When the victim leaned down to pick up the black band, he grabbed her by the hair dragging her across the floor. He told her to stop screaming or he would hurt her even more. He dragged her into the lounge room where she remained on the floor crying. He then stripped the victim naked taking all her clothes. He repeatedly asked her where his drugs and money were. She reminded him of the initial agreement, however he told her he didn’t remember saying that and punched her in the mouth with his left hand. He then punched her twice in the forehead followed by a further two punches to the left eye. The victim, in shock, fell to the floor.
The Applicant told the victim to stop crying and threatened to choke her if she didn’t stop. He lowered himself in front of the victim who was still sitting on the floor. He proceeded to choke her around the neck. She struggled to breathe, telling him to let go and that he was hurting her. After a short while, he reached for a plastic shopping bag and placed it over the victim’s head and continued to choke her. Following a further two to three minutes, he let her go. He placed the victim’s hands behind her back and bound them with a leather belt before picking up a piece of wood with nails sticking out at one end. The piece of wood was apparently a table leg from a dismantled table in the flat.
The victim asked the Applicant what she had done to deserve this. In response the Applicant repeatedly asked her where his money and drugs were. The Applicant motioned to hit her with the piece of wood, telling her that if she didn’t tell the truth he would make her miserable and she wouldn’t be alive at the end of the day. When she again told him that she didn’t take the drugs, he struck her to the head with the piece of wood. He struck her again with the wood once to her chin and once near her eye. He hit her three consecutive times to the left shoulder and once to the left forearm. By this stage it was nearly 7:00pm and the victim wondered if she was ever going to be able to leave, or if she would be killed. The Applicant again asked questions and struck her over the back until she provided the answers he wanted. Ultimately, the victim relented, and in an attempt to stop the assault she said that she took his drugs, smoked them, and that there was nothing left. This enraged the Applicant and he repeatedly hit her.
At about 7:45pm, the victim went to stand and as a result the Applicant got up, grabbed her and pushed her back to the floor. He told her that he would pay his mates to go to a service station, fill up a container with petrol, return to the flat and pour petrol over her. He said he would give each of his friends a lighter and they would set her alight. He said if that didn’t work and the victim was still alive, he would call every male he knew and pay them to come to St Kilda. He would tell them where the victim was and what she looked like and that they would rob and gang rape her.
After telling her this, the Applicant got up and went to the toilet. As soon as he closed the door the victim got off the floor, put her clothes on, ran to the front door and exited the building. The CCTV depicts the victim leaving at 8:03pm.
At 8.10pm, the victim arrived at the St Kilda Crisis Centre to make a complaint. Staff at the centre immediately observed blood on the victim’s face along with a cut above her eye, bruising to her eye socket and a bloodshot eye. She was shaking badly.
The victim was ultimately transported by ambulance to hospital where an examination revealed that she had suffered multiple instances of blunt trauma around the head and neck area. Her head and neck had numerous bruises, lacerations, abrasions and swelling. She had abrasions and bruising to her left upper arm and shoulder blade. Her front and back shoulder areas and arms had multiple abrasions, scratches and bruises, along with a puncture wound. She had extensive bruising and swelling to the back of her left hand and abrasions to her right knee and one to her left thigh.
On 23 March 2016, police executed a search warrant at the Applicant’s apartment, where he was arrested. During the search, police located a wooden furniture leg with blood at one end, and various drug substances. Subsequent analysis confirmed that the blood on the end of the piece of wood matched the victim’s DNA.
Evidence on the change of plea application
The Applicant swore an affidavit in support of his application to change his plea.[5] In that affidavit the Applicant stated that he pleaded guilty to the charges on the indictment after receiving legal advice from his barrister, Mr Ian Polak and his solicitor, Mr Kieran Reynolds. He stated that he had always maintained his innocence in the matter and didn’t understand what he was doing when he entered his plea of guilty. He stated that his barrister said to him that he had no option but to plead guilty. He said that at the arraignment on 14 September 2017 when asked how he pleaded, he said not guilty because ‘I do not believe I am guilty of the charges’.
[5] Ex D3.
Further in the affidavit, the Applicant stated that after the matter was stood down following the arraignment, his barrister Mr Polak came and spoke with him in the cells. He said that Mr Polak told him that he would get time served. Once the matter returned to court the Applicant pleaded guilty to the charges on the indictment. As the prosecutor read the summary in open court the applicant states that he said ‘it’s all lies’ because he did not agree with what the prosecutor was saying. The case was stood down again. Mr Reynolds came to court and together with Mr Polak they further spoke with the Applicant. He states that Mr Reynolds provided him with a document which he maintains he did not read and simply signed. He states he was put under a lot of pressure.
The affidavit confirms that the next day, 15 September 2017, the matter was brought back before the judge and the prosecutor read the opening. A plea in mitigation was conducted.
On 30 November 2017, the Applicant gave evidence on this application. In examination in chief he confirmed that the contents of his affidavit were true and correct.
The Applicant restated in evidence that his barrister told him that he had no option but to plead guilty and that he would get timed served. He stated that ‘that’s what he (the barrister) advised me to do’.[6]
[6] T17.
In cross-examination the Applicant stated that his barrister said to him that if he pleaded guilty he would get time served and if he pleaded not guilty he would get more time.[7] He said that he believed he was not guilty.[8] He confirmed that he did tell his lawyers that he hit the victim with his hands and that he ‘hit her to give the money back, not with the wooden leg. She fell in the wooden leg’. However when it was put to him that his solicitor would give evidence and say that the Applicant had instructed him that he had hit her with the wooden leg, he replied ‘I did hit her with it, but she was holding the plate first and after, the wooden leg’.[9]
[7] T25.
[8] T27.
[9] T29.
During cross examination, the Applicant vacillated from saying he had hit her with the wooden leg to saying he’d only hit her with his hand: ‘it’s slapping like that… Once or twice but she was going crazy she hit me with the plate on my head first, and after, with that wooden leg’.[10]
[10] T 30.
When asked whether he told his barrister that he had assaulted her, causing her injury, he stated that ‘she must have fallen down, or when I slapped her, you know, and I – you know, something must happen after she hit me with the plate and I would do that’.[11]
[11] T 38.
The Applicant agreed with the prosecutor that he had been to court about 55 times and that he had approximately 114 prior convictions or findings of guilt. He agreed that he had, on occasions, pleaded not guilty and had run a trial in the County Court on two occasions in 2004 and 2005.[12]
[12] T 41-42.
The Applicant was asked about the document headed ‘Jiryis Khsheibon - Signed Instruction’[13] dated 15 September 2017 which bears his signature. The document provides detail of the discussions held between the Applicant, Mr Reynolds and Mr Polak on 14 and 15 September 2017. The Applicant agreed that Mr Reynolds said to him not to sign the document or ask any questions until he (Mr Reynolds) had read it to him first. However, the Applicant later said that he couldn’t remember if he had had it read to him.[14] The document states inter alia that: ‘I have not been pressured or coerced and confirm my existing instructions to plead to the charges on the indictment’. More specifically, the document states:
[13] Ex D2.
[14] T 61-62.
(i) If I plead guilty to the charge on the indictment I will receive the benefit of a discount on sentence.
(ii) That the charge of (a) make a threat to kill carries a maximum penalty of 10 years imprisonment (b) intentionally cause injury carries a maximum penalty of 10 years imprisonment and (c) possessing a drug of dependence carries a maximum penalty of 12 months imprisonment.
(iii) I have been advised that I should expect a significant term of imprisonment even if I were to plead guilty to the charges.
(iv) That the sentence imposed by the court on a plea may exceed the 424 days of pre-sentence detention and I may still be required to serve a further significant period of imprisonment.
(v) Lengthy terms of imprisonment with non-parole terms or Community Correction Orders are regularly imposed by the courts for charges of threat to kill and intentionally cause injury.
(vi) Having taken all this information into account and having had sufficient time to consider the matter, I authorise my solicitors to plead guilty to the charges contained on the indictment and accept the facts outlined in the Amended Summary of Prosecution Opening.
In re-examination the Applicant reiterated that, even though he said he was guilty to the charges, he believed that he was not guilty.[15]
[15] T 72.
The next witness to give evidence was Kieran Reynolds, the Applicant’s solicitor.
Mr Reynolds outlined the chronology of the matter and the professional relationship he had with the Applicant. Much of his evidence was focused on what occurred on the days of the plea, that is, 14 and 15 September 2017. He outlined that he and Mr Polak spoke to the Applicant in the cells after the Applicant had indicated before the judge that he did not agree with what was being read out in the prosecution opening.
In the afternoon of 14 September 2017, Mr Reynolds together with Mr Polak took the Applicant through the prosecution opening where he indicated which parts of the opening he agreed with and which parts he did not agree with.[16] Various paragraphs on the document are ticked indicating agreement with those paragraphs, whilst others have handwritten comments as a result of the discussions between the Applicant, Mr Reynolds and Mr Polak. Next to some paragraphs of the prosecution opening, words have been written such as ‘not possible’, ‘possible’ and ‘don’t recall’. In evidence, Mr Reynolds agreed that these words reflect the responses by the Applicant when he was taken through the prosecution opening.
[16] Ex P1.
Mr Reynolds said that he wanted the Applicant to consider his instructions overnight and would not take any instructions at that point in time. He also stated to the Applicant that if he was to proceed with the plea then he would ask him to sign a written instruction. Mr Reynolds also conveyed to the Applicant that he had three options: pleading guilty; a contested plea; or that the Applicant would change his plea and thereby run a trial.[17]
[17] T 94.
Mr Reynolds also stated that in the course of that discussion, he had conveyed to the Applicant that the case was a serious one and that it was likely that a significant term of imprisonment would be imposed. It was also conveyed to the applicant that the pre-sentence detention would not be sufficient to cover the sentence which was likely to be imposed.
On 15 September 2017, Mr Reynolds and Mr Polak saw the Applicant in the cells before his appearance in court for about 45 minutes to an hour. Mr Reynolds states that he took the applicant through the ‘written instructions’ document. Mr Reynolds stated that the Applicant said to him ‘I’ll sign it, I’ll sign it’, however Mr Reynolds responded that he didn’t want the Applicant to sign the document immediately, rather Mr Reynolds wanted to read it to him first and then allow the Applicant to ask any questions in relation to it.[18] Mr Reynolds stated that the Applicant did ask questions and recalls the Applicant asking what the phrase ‘significant’ means in relation to expecting a significant term of imprisonment. Mr Reynolds said that he explained to the Applicant that the time served would not be sufficient and that any head sentence may well be in excess of the 424 days the Applicant had already served. Following further questions and discussion about the document, Mr Reynolds agreed that he told the Applicant that it was a document confirming that he wanted to plead guilty.[19] The Applicant signed the document and instructed Mr Reynolds to proceed with the plea.
[18] T 101.
[19] T 104.
I note that although the document was signed after the Applicant had entered his plea of guilty, the document states ‘I have not been pressured or coerced and confirm my existing instructions to plead to the charges on the indictment’.
The next witness to give evidence was Ian Polak, the Applicant’s barrister.
Mr Polak had acted for the Applicant since the late 1990s or early 2000s, firstly, as a solicitor and then later as a barrister when Mr Polak had come to the Bar. Mr Polak stated that the Applicant had no difficulty in understanding advice and that, in his view, he believed the Applicant was ‘quite wise about legal processes and so forth’.[20]
[20] T151-152.
For the purposes of the change of plea application, Mr Polak provided a summary of his evidence which was tendered.[21] The document states that on 14 September 2017 he had discussed the Summary of Prosecution Opening with the Applicant. He states that in relation to the incident, the Applicant had admitted the elements making out the offences, although did not accept parts of the prosecution summary. When asked about that in evidence and what that passage meant, his answer was that the Applicant had told him that ‘he made the threats and that he had assaulted her’.[22] Later in evidence, Mr Polak confirmed that the Applicant instructed him (it seems on a number of occasions) that he ‘agreed to the basic elements of the offences he was pleading guilty to’ but he ‘at no stage agreed with everything the complainant had said’. [23] In other words, the Applicant agreed he was guilty in relation to the elements of the charges but disputed the details.
[21] Ex P4.
[22] T 179.
[23] T 255.
Mr Polak gave evidence that after taking the Applicant through the summary, he believed that he still wanted to plead guilty to the charges. Mr Polak was asked further about his belief that the Applicant wanted to plead guilty. Mr Polak stated in evidence that the Applicant ‘made instructions to us that he committed the offences, made instructions to the psychologist that he committed the offences’.[24]
[24] T180.
The reference to the psychologist is a reference to a report of Mr Jeffrey Cummins that was tendered on the plea, dated 21 August 2017. As far as is relevant on this application, the report states:
· He acknowledged he was pleading guilty to very serious charges;[25]
[25] Paragraph [19].
· He acknowledged he was at risk of being required to serve a sentence of significant duration;[26]
· Throughout the interview he expressed frustration about being back in custody and about the risk of receiving a lengthy jail sentence;[27] and
· Although he acknowledged he was now pleading guilty to very serious charges, in my opinion he did not have an accurate appraisal of his history of violent offending or of the extent of his criminal record.[28]
[26] Paragraph [20].
[27] Paragraph [21].
[28] Paragraph [22].
Mr Polak had prepared a written ‘Plea Summary’ which was tendered on the plea and on this application.[29] Mr Polak recalls that on the morning of 14 September 2017 he had made some handwritten notes on his version of the Plea Summary. The outline commences by stating that the Applicant ‘has limited recollection of the events that he agrees occurred on 19 March 2016’. The document goes on to list the matters which the Applicant did not have a recollection of including: stripping the victim naked (believing they were both naked or in underwear most of the day); choking the victim; putting a plastic bag over her head; and binding the victim’s hands. Against the last three of those matters Mr Polak has included a handwritten note which says ‘doesn’t think happened’.
[29] Ex P5.
The document then states that the Applicant does recall: scuffling over the chair leg and hitting Ms Baker; continuously asking her to return his money; and threatening her in the hope that she would return the disputed money. After the entry in relation to the scuffling over the chair leg, Mr Polak has added the handwritten note ‘hit her with leg’. When asked in evidence what was meant by that handwritten note, Mr Polak said ‘it just specifies what he told us’.[30]
[30] T 186.
Mr Polak also produced a copy of the indictment which had handwriting on the front page just below the Summary of Statement of Offences which states ‘I, Jiryis Khsheibon acknowledge that I desire to plead guilty to the above charges and agree with their constituent elements’.[31] Mr Polak agreed that this was signed by the Applicant on 14 September 2017. He said that he explained the elements to the Applicant on that day and that Applicant, after having explained the elements to him, agreed that he wished to continue to plead guilty.[32]
Legal principles
[31] Ex D1.
[32] T190-191.
The primary consideration in deciding whether to permit the withdrawal of a guilty plea is whether there would be a miscarriage of justice if the applicant were held to their plea.[33] The applicant bears the onus of establishing that a miscarriage of justice would arise if the change of plea were not allowed.[34] Applications to change to a ‘not guilty’ plea are to be approached with caution and leave will only be granted in rare and exceptional circumstances.[35]
[33]R v Middap (1989) 43 A Crim R 362, 364; Weston (a pseudonym) v The Queen, [109], per Redlich JA.
[34]Weston (a pseudonym) v The Queen, [109].
[35]R v Sivov [2008] VSCA 100, [31].
The applicant is required to demonstrate that the plea was not a result of a genuine awareness of guilt and that some circumstances affected the integrity of the plea.[36] The integrity of a guilty plea lies in the status of a plea of guilty as an admission of all of the ingredients of the offence.[37] The public interest in the finality of proceedings, and in upholding a negotiated plea from which the accused has benefited, is powerful.[38]
[36] Maxwell v R (1996) 184 CLR 501, 511 per Dawson and McHugh JJ; Weston (a pseudonym) v The Queen, [108].
[37]R v Liberti (1991) 55 A Crim R 120, 122 per Kirby P; Weston (a pseudonym) v The Queen, [109];
[38] R v Liberti, 122 per Kirby P; R v Holden [2009] VSCA 254, [69] per Neave JA; Weston (a pseudonym) v The Queen [88].
It is common to enquire into the circumstances in which the applicant came to enter a guilty plea, and whether any circumstances exist affecting the integrity of the plea.[39] It is not necessarily an inquiry into the guilt or innocence of the accused, except insofar as evidence that creates doubt as to the accused’s guilt, and as to the accused’s perception of their guilt, goes toward a conclusion that the guilty plea was not attributable to a genuine consciousness of guilt.[40]
[39]Khamis v R [2014] NSWCCA 152, [59], per Hoeben CJ with whom McCallum and Garling JJ agreed; Weston (a pseudonym) v The Queen [92], [96].
[40]Weston (a pseudonym) v The Queen [96].
Where an admission of guilt was freely made, the fact that there may be a technical advantage afforded to the applicant in pleading guilty does not, of itself, affect the integrity of the plea. A person may plead guilty for a range of reasons and on ‘grounds that extend beyond that person’s belief in his guilt’.[41] This is unless it can be shown that in entering a guilty plea, the accused did not intend to accept guilt for an offence of which he or she believed himself or herself to be guilty.[42]
[41]Meissner v R (1995) 184 CLR 132, 157, per Dawson J.
[42]Kumar v The Queen [2014] VSCA 102, [16]; Weston (a pseudonym) v The Queen, [109].
The applicant’s subjective belief in their innocence is a relevant factor, but it is not determinative of the application.[43] An applicant's subjective belief in innocence may bear upon the question whether the guilty plea was not a true admission of guilt,[44] and this is a narrower inquiry than that of consciousness of guilt.[45]
[43]Jamieson v The Queen [2017] VSCA 140.
[44]Jamieson v The Queen, [44], [101].
[45] Ibid, [101].
The applicable legal principles in relation to change of plea applications were recently restated in Weston (a Pseudonym) v The Queen,[46] and summarised by Redlich JA:
[46] [2015] VSCA 354.
1. The 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.
2.The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings.
3.To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the Applicant were to be held to his plea.
4.The Applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage.
5.To impugn the integrity of the plea, whether before or after conviction, the Applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the Applicant to his plea. Some of the more common examples cited that may justify the conclusion that the Applicant should not be held to his plea are that the Applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.
6.It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.
7.A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution.
The following principles listed by Redlich JA in Weston concern the integrity of a plea challenged before conviction and sentence:
8.Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar. Where the Applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea.
9Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the Applicant to change his plea before conviction and sentence if the Applicant establishes that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.[47]
[47] Ibid.
Principles 8 and 9 are to the advantage of an accused, however have been the subject of some controversy. In a separate judgment, Whelan and Kaye JJA noted their reservations as to the literal correctness of the propositions stated by the Court of Appeal in Kumar:
Insofar as those paragraphs might be read suggesting that a judge must consider whether an applicant is ‘truly guilty’ and whether he ‘believed’ himself to be guilty, that would seem to be inconsistent with a number of the authorities referred to by Redlich JA including Sagiv, Cincotta, Gadaloff, Brooks (adopting Pugh), Stuart, Wong, Woods, Holden and Rotner, and with the High Court’s dicta in Meissner (although not directly applicable to these applications), even if what was said was confined to applications before conviction. Those propositions, on analysis, might also be found to constitute an unwarranted addition to, or qualification upon, the applicable test which is simply whether a miscarriage of justice would occur if a guilty plea was not permitted to be withdrawn.[48]
[48]Western at [128].
In the more recent case of Jamieson v The Queen[49] the Court of Appeal expressed approval in relation to the comments of Whelan and Kaye JJA in Weston concerning the propositions as stated in Kumar:
In our view, neither Kumar nor Weston is to be understood, in respect of a change of plea application made before conviction, as going beyond this: that evidence of an accused’s subjective belief in innocence is capable of bearing upon the question whether a plea of guilty was tainted as not being a true admission; and, where the plea is shown to have been made with a view of obtaining a technical advantage, this may be relevant to a judge’s exercise of discretion on a change of plea application. That approach accords with logic. Of course, consciousness of guilt in the present connection involves a broader enquiry than as to subjective belief in innocence. If it was otherwise, a person pleading guilty though continuing to protest belief in innocence would inevitably succeed on a change of plea application made before conviction; and, consistently with principle, that is not what happens.[50]
Discussion
[49] [2017] VSCA 140.
[50] Ibid at [101].
Mr Kilduff, who appeared on behalf of the Applicant, did not dispute that the primary test is whether there would be a miscarriage of justice if the Applicant was not allowed to withdraw his plea of guilty. Mr Kilduff also submitted that the Applicant was of the view that if he pleaded guilty he would receive time served. In that sense he was relying on the circumstance of pleading guilty to gain a technical advantage when the Applicant did not truly believe he was guilty. These of course are matters which may be taken into account in exercising discretion, however for the reasons that follow I do not accept the Applicant’s evidence in relation to these matters.
Mr Kilduff’s primary submission was that the Applicant did not believe himself to be guilty at the time of the plea, which is reflected by the fact that when he was arraigned the first time on 14 September 2017 he said ‘not guilty’. Based on the unchallenged evidence of Mr Polak and Mr Reynolds I reject this contention.
Ms Champion, who appeared on behalf of the DPP, submitted that in all the circumstances the evidence discloses that the Applicant admits the charges are made out but disputes the detail, including some of the aggravating features. I agree. Mr Polak gave consistent evidence that while the Applicant did not have a recollection of a number of matters that were outlined in the prosecution opening, he did not dispute the elements of the charges. That is, he did not dispute that he caused injury to the victim, he did not dispute that he made threats to kill the victim and he did not dispute possession of drugs. Mr Reynolds also gave evidence that in his view the Applicant understood what he was pleading guilty to and was satisfied that the Applicant had an understanding of the charges, the constituent elements and the potential consequences in terms of sentencing. Consistent with his professional obligations he reconfirmed these matters in a written document that was ultimately signed by the Applicant confirming his original instructions to plead guilty.
I find that when the Applicant entered his plea of guilty, it was entered based on sound legal advice which he understood. I accept the largely unchallenged evidence of Mr Reynolds and Mr Polak that on various occasions during the committal process and in the time leading up to the plea, the Applicant was carefully taken through the elements of the offences and the consequences of pleading guilty to those offences. For example, during the committal process, the Applicant instructed Mr Polak to negotiate the charges, which ultimately resulted in the false imprisonment charge being withdrawn. The Applicant was therefore actively involved in the process. Such involvement is inconsistent with a person who now maintains that he always intended to plead not guilty. Following the negotiations at the committal, the Applicant entered pleas of guilty in the Magistrates’ Court. Further, Mr Reynolds gave evidence that in the time between the committal and the plea the Applicant gave no indication to him that he wanted to plead not guilty.
While I acknowledge that the evidence in relation to the discussions and instructions after the Applicant had entered his plea of guilty are not directly relevant to his state of mind at the time he entered the plea of guilty, it is evidence of the Applicant confirming and maintaining his initial instructions that he wished to plead guilty and that he understood the charges he was pleading guilty to.
While it is clear that the Applicant does not recall all of the details that were presented in the prosecution opening, he has by his own evidence on oath and through his instructions to his solicitor and barrister, admitted the elements of the offences to which he pleaded guilty.
The Applicant has had vast experience with the criminal law. He has on many occasions pleaded guilty to offences and on some occasions has pleaded not guilty to offences. On two occasions he has run a trial in the County Court. Mr Polak gave evidence, and I accept, that the Applicant clearly understands what is meant by pleading guilty to a criminal charge.
While it is not my task to assess the strength of the evidence for the purpose of this application, the authorities indicate that to impugn the integrity of the plea, the Applicant must be able to demonstrate that there is a triable issue in addition to some circumstance which affects the integrity of the plea. In my view there is no triable issue in this case. The Applicant admits that he was present with the victim in his flat and that he assaulted the victim. He also admits the elements of the other charges on the indictment.
Mr Kilduff submitted that the Applicant, when he entered his plea of guilty, did not intend to accept guilt for offences for which he believed himself to be guilty. He submitted the court can allow the Applicant to change his plea if he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage. The Applicant contends for the proposition outlined in Weston that a plea of guilty is not a true admission of guilt if the person did not intend to accept guilt for the offence of which he believed himself to be guilty.
The Applicant gave evidence that he was told by his legal advisers that the time he had already served in custody up until the plea of guilty would be sufficient and that he would be released shortly thereafter. First, I do not accept that either Mr Polak or Mr Reynolds gave the Applicant that advice. Secondly, I am satisfied that even if there was an initial misunderstanding about the length of sentence which may be imposed, once the matter was stood down and the Applicant was taken through the charges and the prosecution opening again, I am satisfied that he fully understood that he was likely to receive a further period of imprisonment.
On this point I note what was said in Kohari v The Queen[51], a conviction appeal following a plea of guilty where The Court stated:
On the other hand, it seems clear that mistaken advice, even rendered incompetently, will be of no avail when seeking to set aside a conviction based upon a plea of guilty if that advice goes only to the sentence likely to be imposed. In such cases, the accused must simply accept that, having retained legal advisers and acted upon their advice, there are strong public policy considerations that require finality in litigation, and that mistaken advice of that kind will be of no avail. Otherwise, the appellate courts might be swamped by attempts on the part of disappointed offenders to be given a second chance to have their cases heard at trial.[52]
[51] [2017] VSCA 33
[52] Ibid at [136].
As noted in Jamieson, it is central to the integrity of a plea that it be made freely, voluntarily, and with appreciation of the elements of the charge to which the plea is being entered.[53] I am satisfied that the Applicant had a true appreciation of the elements of the charges on the indictment to which he pleaded guilty and that his plea was made freely and voluntarily.
Conclusion
[53]Jamieson at [44].
For the above reasons, the Applicant has not established that there would be a miscarriage of justice if he were not allowed to change his plea.
The Applicant's real grievance is that he disputes some of the facts alleged in the prosecution opening (as distinct from the elements of each of the offences). In deciding that there would be no miscarriage of justice if the Applicant were not allowed to change his plea, I am conscious that the Applicant retains the right to contest those facts at a plea hearing. In other words, holding the Applicant to his plea of guilty will not deprive him of the opportunity to fully contest those facts.
The application is dismissed.
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