DT v Tabet
[2014] WASC 244
•24 JUNE 2014
DT -v- TABET [2014] WASC 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 244 | |
| Case No: | SJA:1108/2013 | 24 JUNE 2014 | |
| Coram: | ALLANSON J | 24/06/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DT BENJAMIN NASSIF TABET |
Catchwords: | Criminal law Appeal against conviction Setting aside plea of guilty Whether miscarriage of justice demonstrated Did not understand charge or intend to admit guilty Mental illness Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 8, s 9(1) Criminal Procedure Act 2004 (WA), s 59(2), s 129(2) Criminal Procedure Rules 2005 (WA), r 58, r 65 Restraining Orders Act 1997 (WA), s 20(1), s 30A, s 30C, s 30C(4), s 30C(5), s 61(2a), s 62, s 62(1)(d) |
Case References: | Glover v Reyne [2001] WASCA 305 Green v The Queen [2001] WASCA 162 Lance v Weston [2014] WASCA 62 Vella v The State of Western Australia [2006] WASCA 129 Vulin v Kirkman [2012] WASC 331 Windie v The State of Western Australia [2012] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
Prosecution Notice number PE 12624 in the Magistrates Court of Western Australia at Perth
- Appellant
AND
BENJAMIN NASSIF TABET
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K M TAVENER
File No : PE 12624 of 2013
Catchwords:
Criminal law - Appeal against conviction - Setting aside plea of guilty - Whether miscarriage of justice demonstrated - Did not understand charge or intend to admit guilty - Mental illness - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1)
Criminal Procedure Act 2004 (WA), s 59(2), s 129(2)
Criminal Procedure Rules 2005 (WA), r 58, r 65
Restraining Orders Act 1997 (WA), s 20(1), s 30A, s 30C, s 30C(4), s 30C(5), s 61(2a), s 62, s 62(1)(d)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr O J Paxman
Respondent : Mr J D Berson
Solicitors:
Appellant : Paxman and Paxman Barristers & Solicitors
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Glover v Reyne [2001] WASCA 305
Green v The Queen [2001] WASCA 162
Lance v Weston [2014] WASCA 62
Vella v The State of Western Australia [2006] WASCA 129
Vulin v Kirkman [2012] WASC 331
Windie v The State of Western Australia [2012] WASCA 61
- ALLANSON J:
(This decision was delivered orally and has been edited from the transcript)
1 On 9 March 2013 the appellant, DT, pleaded guilty to one charge of breaching a police order pursuant to s 61(2a) of the Restraining Orders Act 1997 (WA). The police order had been made and served on the appellant at about 2.10 am on 9 March 2013, following a domestic incident between herself and her brother. The statement of material facts contains no detail about that incident.
2 The order was expressed to be made for the benefit of the appellant's brother. The restraints imposed on the appellant included binding her not to enter or remain upon, a specified address, or to be within 50 m of the nearest external boundary of those premises. The appellant lives there, as does her brother. According to the statement of material facts the appellant returned to her house at about 6.00 am and was sitting in her car in the driveway when she was arrested. She told the police she had nowhere to go.
3 The appellant was represented by a duty lawyer when she appeared in the Magistrates Court later the same morning and pleaded guilty. The magistrate sentenced her by imposing a conditional release order for a period of six months. He also made a suspended conviction order. The appellant now wishes to appeal her conviction and the notice of appeal, after amendment, contains two grounds:
(1) the plea of guilty was not voluntarily entered; and
(2) the plea of guilty was not entered in consciousness of guilt.
4 Within the terms of s 8 of the Criminal Appeals Act 2004 (WA) I will take those grounds as, in effect, alleging that there has been a miscarriage of justice for those particular reasons.
5 Leave to appeal is required on each ground of appeal: Criminal Appeals Act s 9(1). Leave to appeal on a ground must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.
6 On 30 October 2013, Hall J ordered that the application for leave is to be heard at the same time as the appeal. The notice of appeal was filed about five months out of time and an extension of time is needed. On many occasions this court has stressed the importance of complying with time limits. An applicant who seeks a favourable exercise of the court's discretion to extend the time limit needs to give a cogent explanation for the delay.
7 In the present case, particularly having regard to the evidence of the appellant's health, I have considered the merits of the application and determined whether an extension of time should be granted in light of that consideration. Since the appeal was lodged, the hearing has been further delayed (at the request of the appellant) to enable the appellant's solicitors to obtain medical evidence to put before the court and also to obtain a report from the duty lawyer who represented the appellant on the occasion when she pleaded guilty. I will return to the effect of this evidence.
8 The categories of cases where a plea of guilty will be set aside are not closed. There are, however, three well recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty:
(1) where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
(2) if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
(3) where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like: Vella v The State of Western Australia [2006] WASCA 129 [26]; Windie v The State of Western Australia [2012] WASCA 61 [31]; Lance v Weston [2014] WASCA 62 [38].
The two grounds of appeal rely upon the first of these circumstances.
9 To make out her appeal, the appellant must show that there is a miscarriage of justice in allowing her plea to stand. The court approaches such an appeal with caution and the appellant must establish the circumstances on which she relies to establish a miscarriage of justice on the balance of probabilities: Green v The Queen [2001] WASCA 162 [100]; Glover v Reyne [2001] WASCA 305 [57]; Vulin v Kirkman [2012] WASC 331 [23].
10 The importance of a plea of guilty being an unequivocal and true admission of guilt is emphasised by s 59(2) of the Criminal Procedure Act 2004 (WA) by which:
(2) Before requiring the accused to plead guilty to the charge, the court must -
(a) be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b) be satisfied the accused understands the charge and the purpose of the proceedings.
(a) the accused is represented by a legal practitioner; or
(b) if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
12 Here the accused was represented.
13 There is little evidence before me to enable me to make the findings necessary to determine an appeal on the grounds which have been brought forward. But there is, in my opinion, enough.
14 Rule 65 of the Criminal Procedure Rules 2005 (WA) prescribes the documents that must be lodged to commence an appeal. The appellant lodged a copy of the prosecution notice and a copy of the statement of material facts. Rule 65 of the Criminal Procedure Rules also requires the appellant to lodge a copy of the primary court's transcript. The audio recording for that day in the East Perth court is not available. In those circumstances the definition of 'primary court's transcript', in r 58 of the Criminal Procedure Rules, provides an alternative:
If there is no electronic recording of the proceedings that can be transcribed -
(i) the notes made by the judicial officer who presided at the proceedings; and
(ii) one or more affidavits of people who were present at the proceedings about what happened in the proceedings are defined as being the primary court's transcript.
15 The appellant has not provided any notes made by the judicial officer, save for the notation of the plea and penalties that appear on the prosecution notice. In a court such as the East Perth court, it is possible that there were no other notes.
16 The appellant has filed two affidavits which she made on 10 September 2013 and 24 October 2013 in which she states that she does not recall what happened in the proceedings. In submissions, the appellant asked the court to accept, in the absence of transcript or any evidence that s 59(2) of the Criminal Procedure Act was complied with, that a miscarriage of justice cannot be excluded. I would not readily take that step, where the appellant was represented at the hearing and where the notes of the duty lawyer who appeared for her suggest that proper care was taken in obtaining instructions in entering a plea. It is not, however, necessary for me to reach a concluded view about whether s 59(2) of the Criminal Procedure Act was complied with due to the view I take of the medical evidence.
17 In her affidavits the appellant says:
(1) She has been diagnosed with Obsessive Compulsive Disorder and takes medication to control that condition.
(2) When served with the police order, she left without taking her medication with her and she cannot remember everything that happened after she left the house.
(3) At the time of her arrest she could not understand why the police officer was arresting her and she was extremely anxious.
(4) She did not understand what happened when she was taken to the watch-house and although she recalls having a short conversation with a woman, presumably the duty lawyer, she did not understand what the woman was saying at all.
(5) She did not appeal earlier because she is unfamiliar with the justice system and after the arrest her obsessive compulsive behaviours worsened. She was not in a state to talk about her situation. She was also unable to obtain transcript.
18 Specifically, the appellant says that she never intended to plead guilty to the offence, does not remember pleading guilty, and had no idea what was happening around her: [22] and [23] of her affidavit dated 24 October 2014. The solicitor for the appellant, Mr Paxman, has also filed an affidavit to which he has attached a short report made by Ms Kaya Gooding, who appeared for the appellant as duty counsel on her plea, and two letters from Dr John Perica, a consultant psychiatrist. I will have regard to this material because it has been presented in this way without objection and I am conscious of the delays that have already occurred. Legal practitioners acting in appeals should not, however, overlook the need to put evidence before the court in proper form. Preferably, that material should have been supported by affidavits by the authors of the reports.
19 Ms Gooding sets out her recollection of events on 9 March 2013 with the benefit of notes that she made contemporaneously. Relevantly she states:
(1) She advised the appellant that the Saturday sitting of the Magistrates Court in East Perth was primarily concerned with the issue of bail and may not deal with the charge.
(2) She discussed the charge with the appellant. Her practice was to read through the statement of material facts with the client first.
(3) The appellant described the incident as a family argument and expressed surprise that her brother had called the police.
(4) The appellant instructed her that she had returned to the house because she had nowhere else to go and thought they could resolve the issue.
20 The appellant did not tell Ms Gooding that she had to return home to obtain medication and described the incident as a stupid mistake. Ms Gooding advised the appellant that she could plead guilty or plead not guilty or seek an adjournment and apply for bail. She advised her of the elements of the offence and the penalties associated with it if she did plead guilty and told her that the likely penalty was a conditional release order or a fine. The appellant instructed her that she wanted to plead guilty. Ms Gooding recorded the instructions that she took for a plea in mitigation. She also discussed the availability of a spent conviction order and her practice of attempting to ascertain the position of the prosecution, and whether an adjournment would be required to obtain further supporting material.
21 On 26 June 2013 the appellant contacted Ms Gooding again regarding a possible appeal. On that occasion, the appellant said that her brother had tricked her by inviting her back to the house and then calling the police. The clear effect of the report of Ms Gooding is that she believed that the appellant understood the charge and the effect of her plea.
22 In allowing the appeal I wish to make it clear that nothing which I say is intended in any way to be critical of Ms Gooding or the way in which she conducted herself.
23 In the earlier and longer of his reports (dated 12 June 2014), Dr Perica states that the appellant has been under his care since December 2009 for the treatment of a long-standing and severe Obsessive Compulsive Disorder with associated features of anxiety. She has been suffering from that condition for at least 10 years. She has been treated with a number of different anti-depressant medications, combined with psychological interventions, but treatment has not been entirely successful.
24 Dr Perica has formed an opinion based on having read the statement of material facts, the appellant's affidavit (he does not say which one, although the two of them vary very little) and having spoken to the appellant. In his opinion, the appellant's mental functioning 'was compromised' at the time she committed the offence and more importantly, for the purposes of the appeal, at the time she appeared before the magistrate.
25 He says that it is not uncommon for people who suffer from an obsessive compulsive disorder to dissociate and to struggle with short term memory and impaired judgment. They may engage in behaviours that are totally out of character for them. In particular he refers to 'impaired judgment when external life events heighten their premorbid levels of anxiety. For a young woman who attends church weekly, the contact with police and the stress of the disagreement with her brother would have been clearly overwhelming'.
26 Dr Perica also says that he is 'very mindful of the potential adverse effect that a criminal conviction could have on the appellant's immediate and long-term mental health problems'. That factor, in itself, would not give rise to a miscarriage of justice, although it may bear on any later decisions about further action to be taken in this case.
27 In his second report, a letter dated 19 June 2014, Dr Perica refers to the statement made by Ms Gooding about her recollection of events on 9 March 2013. Dr Perica says that Ms Gooding's outline of events 'only further confirms my assessment that [the appellant] was of unstable mind, agitated and demonstrated impaired judgment on the day of her hearing before the court' and 'reflects [the appellant's] poor understanding and comprehension of the circumstances which she found herself to be in'.
28 Those comments, I must say, I found to be of no assistance without considerably more explanation than the letter of 19 June 2014 offers. There is nothing on the face of what Ms Gooding wrote that appears to support those conclusions.
29 The only other evidence supporting the two grounds of appeal is the statement by the appellant in her affidavits that she does not remember anything about the hearing, and by implication, that she did not understand the proceedings or intend to admit guilt. Were it not for the medical evidence, the natural caution which the court would exercise in dealing with an appeal of this nature would render such evidence of little or no value. But in light of the medical evidence I have taken it into account.
30 Before dealing with the submissions that have been made, I will briefly outline the legislation creating the offence.
31 The Restraining Orders Act provides for the making of police orders. They are of limited duration and made in circumstances when a police officer reasonably believes the case is urgent and reasonably believes that making a police order is necessary to ensure the safety of a person from family or domestic violence: s 20(1) and s 30A.
32 Section 30B of the Restraining Orders Act sets out matters to be considered by a police officer in deciding whether to make an order. They include the need to ensure that a person is protected from acts of family and domestic violence, but also the accommodation needs of the person involved and any hardship that may be caused if the order is made. Section 30C of the Restraining Orders Act sets out the restraints that may be imposed. In particular, under s 30C(4) of the Restraining Orders Act a police officer may restrain a person from entering or remaining in a place, or restrict a person's access to a place, even if the person has a legal or equitable right to be at the place.
33 A police officer making a police order is to ensure that the order made is as least restrictive of the personal rights and liberties of the person to be bound by the order as possible while still ensuring that the person for whose benefit the order is made is protected from acts of abuse: s 30C(5).
34 There is no evidence before me about what led the police officer who issued the order to consider it necessary to exclude a young woman from her own home in the middle of the night, nor whether the officer was aware that the appellant suffered from an anxiety disorder and required medication which she had not taken with her.
35 The appellant's case on appeal is that the evidence of Dr Perica establishes that she did not appreciate the nature of the charge to which she pleaded guilty, did not intend to plead guilty, was not capable of instructing counsel, and pleaded guilty in circumstances where the plea was not a true admission of guilt. That, in my opinion, overstates the effect of his evidence.
36 But if I accept Dr Perica's opinion that the appellant was of unstable mind and suffering from impaired judgment at the time of her court hearing, then I can feel no satisfaction that the plea was indeed a true and unequivocal admission of guilt. The evidence of Dr Perica is inherently limited. He apparently did not see the appellant or speak to her about these events at or about the time they occurred. Further, as the respondent has submitted, he does not directly address whether the appellant was incapable of understanding the nature of the charge, or the effect of her plea.
37 Despite those limitations I accept the substance of his opinion. Critically, in my opinion, Dr Perica has been treating the appellant for four and a half years. At the time of writing his report he was seeing the appellant fortnightly. His view is that at the time she pleaded she was of unstable mind and suffering from impaired judgment. I am satisfied that there was a miscarriage of justice in proceeding to a conviction on a plea that has been made in these circumstances.
38 The appellant has also submitted that the police order was arguably invalid. That is not a matter that I can determine in this appeal. The relevance of the submission is that, save for a possible defence of unsoundness of mind or a defence under s 62(1)(d) of the Restraining Orders Act, there may otherwise be no defence to the charge with which the appellant was charged. In particular the offence has no element of acting 'without reasonable cause'. If, however, there is a proper basis to challenge the police order, the appellant may have an arguable defence should the matter proceed to trial.
39 It is not for this court to now decide whether that defence would be upheld. If it is arguable then in my opinion the court should not decline to allow the appeal on the basis that there is no substantial miscarriage of justice. The appellant may also have a defence of emergency under s 62 of the Restraining Orders Act, but the evidence now available is insufficient to enable me to form a concluded view regarding that defence.
40 For these reasons I am satisfied that leave to appeal should be granted and the appeal upheld. The appellant needs an extension of time. Although the explanation for the delay might not, in other circumstances, be sufficient, when I take into account the evidence regarding the appellant's anxiety disorder I am satisfied that the interests of justice warrant the grant of an extension. That is, after all, the reason why the power is there.
41 The time within which to commence the appeal is extended to the date the notice of appeal was filed. The appellant is granted leave to appeal on the two grounds in the amended notice, and the appeal is upheld. The conviction is set aside. In light of the medical evidence, I have misgivings about whether the charge should proceed but that is a decision to be made by others who may be aware of material that I do not know about. Those are my reasons for upholding the appeal.
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