Draper v Police - [2005] SASC 495

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DRAPER v POLICE
Judgment of The Honourable Justice Gray
22 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
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 and sentence - appellant pleaded guilty before Magistrate to offence of assault and of failure to comply with a term or condition of a bail agreement - appellant convicted - appeal lodged to set aside the convictions and sentence - consideration of principles regarding withdrawal of guilty pleas - consideration of appeal against sentence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 39(1), referred to.
Meissner v The Queen (1995) CLR 132; The Queen v Marchando (2000) 110 A Crim R 337; R v Pugh [2005] SASC 427; Collis & Collis v The Queen (1989) 43 A Crim R 371; R v Liberti (1991) 55 A Crim R 120; R v Moxham (2000) 112 A Crim R 142; R v Clayton (1984) 35 SASR 232; R v Roach (1990) 54 SASR 491; Dinsdale v R (2000) 202 CLR 321, considered.

DRAPER v POLICE
[2005] SASC 495
Magistrates Appeal
GRAY J

This is an appeal against conviction and sentence.
Vicki Ann Draper, the appellant, was charged that on 15 September 2005 at MacDonald Park she assaulted Barbara Draper contrary to section 39(1) of the Criminal Law Consolidation Act 1935 (SA). She was further charged that on 19 November 2005 at Elizabeth without reasonable excuse she failed to comply with a term or condition of the bail agreement that she entered into on 14 July 2004.
The matters first came before the Magistrates Court on 16 September 2005. The events giving rise to the assault had occurred on the previous day. On 16 September 2005 the appellant appeared and was represented by a solicitor. The charges were read and the appellant entered a plea of guilty to each count.
Following the entry of the pleas, the police prosecutor then outlined the prosecution version of events relying on the police apprehension report. The prosecutor informed the court as follows:
I then read the facts of the matter to the court. Although I now cannot recall word for word what submissions I made, my submissions were almost verbatim to the victim’s version of the narrative of the Police Apprehension Report and were to the effect of:
Count 1
“Your Honour, the victim in this matter is Barbara Draper, she alleges that between 1.30pm. & 8.30p.m. [sic] on Thursday, 15^th September 2005 she and her husband were at their home address when their daughter, the accused verbally threatened them and was verbally abusive to them. The accused is alleged to have said to victim’s husband, “Do you want to die?”
From about 5.30p.m. until the arrival of police, she was continually being abusive and making threats. The accused allegedly stated that she knows a 12 year old who can round up 12 people and get them to hurt us and won’t even go to gaol because she is a minor. She further stated that they were going to get hurt and fuck them. During the rest of the night the accused kept yelling, saying that they have fucked up and will pay. She stated that they were going to be blown to bits. The accused called out her mother’s name and stated that she was going to be raped because she was a cunt. The victim heard the accused say that she was going to ‘bump’ her father off because she knows the system and what she can get away with.
Later, at about 7.45 p.m. she was yelling still and stated that they were only alive because the accused was allowing us to be alive. The accused further stated that if they made one phone call they wouldn’t be alive very long. She said that her parents had to help her with her welfare and that if they didn’t she will murder them and she won’t do much time because she will plead herself insane. The accused kept making similar threats until arrival of police.
The victim is scared because the accused kept repeating them and the victim believes that she is capable of hurting her and her husband. The victim stated that every time she made a comment about hurting them she really thought she meant it and she was very loud, abusive and acting in a really threatening manner”
Count 2
“Your Honour, on 16 May 2004 the accused as arrested for certain matters. One condition of her bail agreement, entered into at the Magistrates Court sitting at Elizabeth and she to reside at the Wellington Caravan Park.
On 14 July 2004 the accused attended at the Magistrates Court at Elizabeth and sought a variation to that condition which was refused. Subsequent inquiries at the caravan park by Police on 11 November 2004 revealed that she had left the caravan park and her whereabouts were unknown.”
The prosecutor advised the magistrate that the appellant had a prior offending history. He recounted the details as follows:
I then advised Her Honour that the appellant had relevant prior offending history, and I read the relevant prior offences to the court.
I advised Her Honour that on 30 September 2004 in the Magistrates Court at Adelaide the appellant was convicted of giving a false name and address. For this offending the appellant was fined $100.00. I made no further submissions with respect to penalty.
The appellant’s counsel then made submissions as to penalty.
The magistrate provided the following sentencing remarks:
I take into account the fact that you have pleaded guilty to these charges. The most important of those is the one of assaulting your mother. It appears there was a crisis situation that arose yesterday involving a lot of threats and the assault on your mother. Thankfully there was no actual physical violence but that does not minimise the charge at all. The breach of bail fades into insignificance in comparison.
I note that you have been living with your parents for several months. You have a baby, now 2 months old. You have been subject to domestic violence and now you are split up from your partner hopefully that may stop. Your children need care and attention. They need to get that in a stable situation with you behaving appropriately.
I will impose a conviction. Pursuant to S.18A there is to be a global penalty. You are to enter into a bond to be of good behaviour for 18 months in the sum of $150. It is a condition of the bond that you come before the court for sentence if you fail to comply with the conditions of this bond. You are to be under the supervision of an officer of the Department of Community Corrections and obey the lawful directions of that officer. You are to report within 2 working days to the Elizabeth office of the Department of Community Corrections. It is a condition of the bond that you are not to contact or attend at your parents’ home address except for an attendance in the company of a police patrol at a time convenient to the parties, particularly the police patrol, in order for you to arrange for the collection of your personal property and to get your children. It is a further condition of the bond that you are to participate in any counselling or other programmes considered appropriate to your particular circumstances.
The appellant’s grounds of appeal are in the following terms:
I was cohurst [sic] into entering a guilty plea or I would have been remanded in custody. My paramount concern are my children + they needed me in their care. I feel that I have been victimised by my parents as my father was attempting to steel [sic] my children from me. I believe that this is a domestic violence situation and I would like to be given a chance to here [sic] my case before the courts, and to have the conviction reduced or set aside
Shortly before the hearing of the appeal an amended notice was filed in which the allegation of coercion was abandoned.
Applicable Principles
Pleas of guilty made following the taking of legal advice by the appellant are a confession of the elements of each offence. In Meissner,[1] Dawson J observed:[2]
The entry of a plea of guilty … constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
[1] Meissner v The Queen (1995) 184 CLR 132.
[2] Meissner v The Queen (1995) 184 CLR 132 at 157 (footnotes omitted).
In Marchando,[3] the New South Wales Court of Criminal Appeal summarised the general principles relating to the withdrawal of guilty pleas:[4]
The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: Griffiths (1977) 137 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599 … Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable: Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown – the onus lying on the applicant – that the plea was not really attributable to a consciousness of guilt: Davies (1993) 19 MVR 481.
[3] Marchando (2000) 110 A Crim R 337.
[4] Marchando (2000) 110 A Crim R 337 at 338.
The Full Court gave particular attention to the principles governing the withdrawal of a guilty plea in Pugh.[5]In discussing the relevant principles Doyle CJ observed:[6]
[5] R v Pugh [2005] SASC 427 at [32]-[41] (Doyle CJ), [97]-[121], Bleby J and [191]-[203] (Gray J).
[6] R v Pugh [2005] SASC 427 at [32]-[33].
The powers of the Court are found in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The relevant part of that provision is the power of the Court to allow the appeal if there has been a miscarriage of justice.
Early case law, reflecting a formalistic approach, is reflected in the following often cited passage from The King v Forde [1923] 2 KB 400 at 403:
“A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charge.” (footnotes omitted)
Later cases emphasise that the issue is whether there has been a miscarriage of justice, and while the principles stated in Forde will cover many cases, those principles are not to be substituted for the statutory jurisdiction.
I further observed:[7]
As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred.
The onus is on the appellant to establish that to hold a person to a plea of guilty would result in a miscarriage of justice.[8] The courts adopt a cautious approach to allowing a change of plea. This approach recognises the public interest in the finality of proceedings and the fact that a plea based on legal advice is ordinarily regarded as an unequivocal and informed admission of the elements of the offence charged.[9]
…
Where a plea has been entered following legal advice, a withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement and there exists a substantial issue to be tried.
[7] R v Pugh [2005] SASC 427 at [195]-[196], [198].
[8] Collis & Collis v The Queen (1989) 43 A Crim R 371.
[9] See R v Liberti (1991) 55 A Crim R 120 at 122; R Moxham (2000) 112 A Crim R 142 at 144; R v Clayton (1984) 35 SASR 232 at 234 and R v Roach (1990) 54 SASR 491 at 494.
The Appeal
The appellant appeared in person. Most of her submissions, both written and oral, recounted alleged circumstances that she claimed demonstrated that she was not guilty of the offences of which she had been convicted.
The appellant asserted from the bar table that the pleas of guilty were made because of her desire to be released from custody so she could attend urgently to the collection of her young children. However this is no more than an assertion. The appeal was adjourned to allow the appellant to file any further material in support od her allegations. In particular her attention was drawn to the need for an affidavit from her solicitor as well from herself. No affidavits have been forthcoming.
To set aside convictions following pleas of guilty is a very serious matter. To do so erodes the principle of finality to litigation. Such an order would necessarily mean that the proceedings would need to be remitted for trial. The appellant has not put before this Court evidence that would justify such a course.
There is nothing to suggest that the appellant did not appreciate the nature of the charges. The appellant was legally represented and entered her pleas of guilty following the taking of legal advice. She did not object to the version of facts put before the court by the prosecution.
The affidavit from the prosecutor rejects any suggestion of inappropriate conduct by the police or by the magistrate. The abandonment of the allegation of coercion confirms the propriety of the actions of all those involved.
In the circumstances it is not appropriate to permit the appellant to withdraw her pleas of guilty. There is no substance to her complaints that would justify such a course. No basis has been established to justify the setting aside of the convictions.
Sentence
The appellant sought to challenge the penalty imposed by the magistrate. That penalty was at the lower end of the scale for the offending and was well within the discretion of the magistrate. No error of sentencing principle has been identified by the appellant. It has not been shown that the magistrate had regard to any irrelevant material or that she failed to consider any material circumstance.[10] The complaints concerning sentence are of no substance.
[10] Dinsdale v R (2000) 202 CLR 321.
Conclusion
This appeal is dismissed.