DURAND v Police - [2022] SASC 123

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
DURAND v POLICE
[2022] SASC 123
Judgment of the Honourable Auxiliary Justice Parker
1 November 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
MAGISTRATES - HEARING - PLEA - GUILTY PLEA - WHERE ACCUSED UNREPRESENTED
The appellant pleaded guilty to one count of aggravated assault and consented to the confirmation of an interim intervention order at first appearance at the Magistrates Court while unrepresented.
The appellant seeks an order that both the guilty plea and the consent to the confirmation of the interim intervention order be set aside. The appellant argues that she was not given an opportunity to obtain legal representation, that she was induced to enter a plea of guilty and to consent to the confirmation of the interim intervention order because of representations made by the prosecutor, that a miscarriage of justice occurred because the appellant, as an unrepresented defendant, did not receive proper assistance from the Magistrate, and that a miscarriage of justice occurred because the appellant disclosed a defence during submissions in mitigation of penalty which indicated that she did not understand the nature of the charge against her.
The respondent contends that the appellant did not produce any evidence that she was not given an opportunity to obtain legal advice or that her actions were induced by the representations of the prosecutor. Further, there was no reason for the Magistrate to believe that the appellant was not exercising her free choice or that she did not fully understand the proceedings. Finally, even if self-defence had been raised, taking into account the circumstances of the case, it was open and reasonable for the Magistrate to convict and sentence the appellant on the basis of her guilty plea.
Held:
1. The appeal against conviction on the charge of aggravated assault is dismissed.
2. The appeal against confirmation of the interim intervention order is dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 20(2), 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 7(1)(a), 8(1), 8(2), referred to.
Cooling v Steel (1971) 2 SASR 249; R v Forde [1923] 2 KB 400; Tsavalas v Police [2016] SASC 103; R v Pugh (2005) 158 A Crim R 302; R v Young [1982] Vic SC 482, (Court of Criminal Appeal of Victoria, Starke, Crockett and O’Bryan JJ, 2 December 1982); Meissner v The Queen (1995) 184 CLR 132; R v Stewart [2010] SASCFC 72; Bollen v Police [2022] SASC 82; R v Wilkes (2001) 122 A Crim R 310; R v Abusafiah (1991) 24 NSWLR 531; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; R v McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620, considered.

DURAND v POLICE
[2022] SASC 123
Magistrates Appeal
PARKER AJ:
Introduction

The appellant seeks an order that her plea of guilty to one count of aggravated assault and also her consent to the confirmation of an interim intervention order be set aside. She seeks that both matters be remitted to the Magistrates Court for further determination by a different Magistrate.
The appellant was charged with one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Two circumstances of aggravation were initially alleged. They were, first, that the victim of the offence was the spouse of the appellant and, secondly, that the appellant had used or threatened to use an offensive weapon (i.e. a knife) when committing the alleged assault. The second ground of aggravation was withdrawn by the prosecution in the circumstances described below.
The amended grounds of appeal
The plea of guilty and the consent to the confirmation of the interim intervention order occurred in the Magistrates Court on 12 April 2022. However, a notice of appeal was not filed until 24 June 2022. Thus, the appeal was lodged substantially out of time and an extension of time is required. The appellant also seeks leave to amend the grounds of appeal. The respondent does not oppose either the extension of time or the proposed amendment to the grounds of appeal.
The appellant was not legally represented when she appeared on 12 April 2022. It was only when she consulted a family lawyer that she became aware of the possibility of an appeal. I have also been informed that as the files for the prosecution and for the intervention order were held under different names (i.e. her maiden name and her married name) there was some delay in obtaining a certificate of record from the Magistrates Court. In light of these matters, and as neither course is opposed by the respondent, I grant an extension of time and permission to amend the notice of appeal.
The amended grounds of appeal are as follows:
3.1…
3.2the appellant was unrepresented at the hearing and was not given an opportunity to obtain legal advice or representation.
3.3the appellant was induced to enter a plea of guilty and to consent to the confirmation of the interim intervention order by reason of representations made by the prosecutor.
3.4a miscarriage of justice occurred as the appellant entered a plea of guilty and consented to the final intervention order without the proper assistance from the Magistrate owed to her as an unrepresented defendant.
3.5a miscarriage of justice occurred as, in the course of her submissions in mitigation of penalty, the appellant disclosed a defence to the charge, thus indicating that she did not understand the nature of the charge against her.
The appellant’s affidavit
The appellant has deposed that prior to attending the Magistrates Court on 12 April 2022, she had had a discussion with the police prosecutor. As a result, she understood that the charge of assault would be withdrawn. For that reason, she did not seek legal advice. At the hearing, she was not entirely sure what was happening. When she was asked what her plea was to the charge, she was confused. She looked over to the prosecutor who was nodding. She has deposed that this “made me feel as though I should say guilty”. The prosecutor continued to nod after she pleaded guilty. The appellant has further deposed that she only really came to understand what had happened after she started speaking with her family lawyer.
The police prosecutor’s affidavit
The deponent stated that he was a sergeant of police and the senior supervising prosecutor responsible for adjudication of charges in the local area. As a result of the allegation relating to the domestic incident involving the appellant, the investigating police applied for an intervention order. That application was listed for hearing on 12 April 2022. The application was supported by an affidavit signed by the husband of the appellant.
The prosecutor stated that prior to the first hearing date for the intervention order, he had received a telephone call from the appellant. He explained the process to her and what she should expect during the hearings. He said that the hearing in April related to the intervention order but the hearing relating to the substantive offence would be in May 2022.
The prosecutor stated that he had advised the appellant that she had the right to seek independent legal advice. The appellant stated that she had answered questions during the record of interview with police and that she had admitted “some” of what was alleged against her. She indicated that she was very keen to have all matters resolved as quickly as possible.
The prosecutor further stated that he could request that the hearing of the assault charge in May be brought forward so that it was heard with the intervention order application in April 2022. He informed the appellant that the prosecution had no objection to the adjournment of the intervention order application so that it was heard concurrently with the substantive matter in May 2022. That would enable her to obtain legal advice.
As the appellant was extremely keen to have all matters finalised as quickly as possible, the prosecutor stated that he agreed to present to the Court those facts that were most favourable to her and only what she had admitted in the record of interview. He also agreed to make minimal sentencing submissions. On the day of the hearing the appellant was accompanied by her father. The prosecutor spoke to her in front of her father and confirmed that she wanted to resolve all matters that day and not seek an adjournment. He informed the appellant of the possible effect of a conviction on travel and business. He also informed her that her legal representative would assist her in not gaining a conviction. However, she was insistent on the matter being finished without any fuss.
Based on the request by the appellant, the prosecutor deposed that he asked the Court to call on the substantive matter. He also deposed that the Magistrate confirmed with the appellant that she wished to finalise the matter on the first appearance and that she did not want an adjournment.
The prosecutor has stated that at no time was the appellant enticed or coerced either by him or by the Magistrate into entering a plea on 12 April 2022. In his opinion, the Magistrate made it clear that an adjournment would be granted and that the prosecution would not object to an adjournment. However, it was very much the appellant and her father that had pressed for an early and quiet resolution to the matters.
The prosecutor stated that he proceeded to honour his agreement with the appellant and presented the facts based on her version of events. As the appellant was not represented, he did not press for a conviction.
The prosecutor asserted that he went to great lengths to explain the issues regarding conviction and “without conviction”. He asserted that he was confident that the appellant was fully aware of the nature of her plea. He further stated that from his perception the appellant was at no time confused. In his view, she was focussed on getting the matter dealt with quickly and quietly.
The proceedings before the Magistrate
At the commencement of proceedings, the prosecutor sought leave to amend the information by deleting the reference to an offensive weapon. The prosecutor then informed the Court that he understood that the appellant intended to enter a plea of guilty on an agreed factual basis. The Magistrate confirmed with the appellant that this was her expectation of what was to occur.
After the amended charge was read, the appellant was asked whether she pleaded guilty or not guilty. There was a pause of four seconds before she responded.[1] The prosecutor then briefly stated the allegations. In the course of doing so, he referred to a “common sense resolution” of the matter on the basis that the allegation that a knife had been used in the assault was not being pursued.
[1] From 1m 47s to 1m 51s on the tape recording of the proceedings.
In response to a question from the Magistrate, the appellant stated that she agreed with the facts alleged by the prosecutor. The Magistrate directed several further questions to the appellant. She stated that her estranged husband had approached her with a raised voice saying that he would not agree with her proposals for a financial settlement. She placed her hands on either side of his face in frustration as he was not listening to her. The appellant also said that her husband was a fit man who was considerably stronger than her who had a personality that could be very intimidating. However, she spontaneously acknowledged that she had done the wrong thing by touching him.
A conviction was not recorded, nor was any penalty imposed. The Magistrate questioned the appellant as to whether her financial circumstances were such that he might exercise the discretion to waive court fees. The appellant indicated that she did not seek a favourable exercise of that discretion. Thus, the appellant was required to pay court fees, a prosecution fee and the victims of crime levy. As previously noted, the interim intervention order in favour of the appellant’s estranged husband was also confirmed albeit on the basis that the appellant made no admissions.
Sentencing remarks
The Magistrate noted that the appellant had pleaded guilty at absolutely the first available opportunity. His Honour noted that the offence had occurred when the appellant and her husband were apparently discussing their financial arrangements. She became frustrated at not having her side of things and her ideas directly addressed by him. The Magistrate then noted:
You put both of your hands either side of his face, I take it in the gesture of frustration and to try and bring his attention and forcibly direct him to respond to what you were saying.
Your husband is, as you have described to me, and I accept, a large, physically capable man who would not have been in any way particularly intimidated by your action.
Whilst that does not make it anything other than an assault it does bear in my view on the penalty.
The Magistrate further noted that what had occurred seemed to be an expression of the appellant’s frustration. His Honour also noted that the appellant had not been arrested. The Magistrate stated that the appellant did not have any prior convictions. His Honour then observed:
… given the fact that this seems to have been an ongoing issue with your husband, over some period of time, if you were the sort of person that were inclined to resort to violence when you didn’t get your own way, we would have seen you by now and the fact that we haven’t militates in favour of me proceeding without a conviction.
The Magistrate went on to explain his reasons for proceeding without imposing any penalty. His Honour did not refer to the intervention order and nor did he explain the basis upon which he had confirmed the interim order other than to observe that “the intervention order no doubt will mean that the chance of this happening again are hopefully nil”.
The appellant’s submissions
The appellant’s counsel focussed his submissions on what were described as two well-established common law species of miscarriage of justice that have been recognised where an appellant seeks to set aside a plea of guilty. The appellant contends that, first, the Magistrate was derelict in his obligations to an unrepresented litigant in that his Honour failed to comply with the obligations stated by Wells J in Cooling v Steel.[2]Secondly, the appellant contends that she did not appreciate the nature of the charge against her.[3]
[2] (1971) 2 SASR 249.
[3] R v Forde [1923] 2 KB 400.
In Cooling v Steel, Wells J stated that where a defendant enters a plea of guilty, before the Court proceeds with the matter, the defendant should be informed of the seriousness of the charge and the penalties that may be imposed. It should also be made clear that the defendant may put matters in mitigation and may call witnesses or produce other relevant material for the consideration of the Court. If, after hearing the defendant, there are relevant areas that he or she has not covered, they should be invited to do so.
The appellant also notes that in Tsavalas v Police, Doyle J observed that while Cooling v Steel provides guidance, what is appropriate and necessary must be assessed having regard to the practical realities associated with the caseload faced by magistrates and the circumstances of the particular case.[4]
[4] [2016] SASC 103.
The appellant observes that the Magistrate did not inquire as to whether she had sought any legal advice or intended to do so. This was the first error made by the Magistrate. It was necessary for his Honour to ensure that the decisions made by the appellant were informed and made with an understanding of the consequences that might follow. It must be recognised that the appellant was being asked to admit guilt to an offence of domestic violence, that being a particularly serious mode of offending that carried with it the possibility of imprisonment and many social stigmas, and may also have an effect on other court proceedings that may follow the breakdown of her marriage. It is incorrect to suggest that this was a minor offence and that the consequences of her guilty plea were negligible even though the penalty imposed by the Magistrate could be merciful. This was not a decision that an unrepresented and uninformed party should have made without careful consideration and, ideally, rigorous legal advice.
The appellant submits that the significant pause after she was asked to enter a plea is indicative of the foreign nature of the proceedings to her and perhaps also some hesitation about committing to the answer that was being asked of her. The pause provided the Magistrate with the opportunity to discharge his obligation to the appellant and inquire as to her understanding of the proceedings and what advice, if any, she had received. The appellant submits that this was the second occasion that the Magistrate erred.
Following the plea of guilty, the prosecutor informed the Court of the alleged facts. The appellant contends that the reference by the prosecutor to a “common sense resolution” may have induced an unrepresented and inexperienced party to adopt a course that they may not otherwise have taken. A person unfamiliar with a courtroom might accept a “common sense resolution” proposed by someone experienced in that environment without fully appreciating its nature. Moreover, a “common sense resolution” from the perspective of a police prosecutor might not be a “common sense resolution” if the party was represented. The appellant submits that this was the third occasion that the Magistrate should have intervened to protect the unrepresented party.
After explaining that the allegation that a weapon had been used was not being proceeded with, and that the police had not been called immediately after the incident, the prosecutor conceded that there were “lots of issues for prosecution in determining where the truth lies between these two stories”. The appellant submits that at this point the plea was apparently also being entered without the prosecution being satisfied to the requisite standard as to their own case. This was the fourth point at which the Magistrate should have discharged his obligation to the appellant.
The appellant submits that when she was invited to make submissions in mitigation of penalty, this took place by way of leading questions put to her by the Magistrate. She was not given the freedom to put her own version of events freely and without influence. However, notwithstanding the nature of the questioning by the Magistrate, the appellant disclosed facts that were not consistent with her plea of guilty. The appellant stated that she put her hands on the face of the complainant as he was “coming towards me with his voice raised” and that “he is much bigger and stronger than me” and can be “quite intimidating”. The appellant submits that this gives rise to the possibility of self-defence. Thus, the appellant submits that the Magistrate was required to strike out the plea and encourage the appellant to seek legal advice as she had disclosed a defence to the charge. The appellant contends that this was the fifth and most stark example of the Magistrate failing to protect an unrepresented defendant and thereby causing a miscarriage of justice.

The appellant notes that in R v Forde, Avory J held that following a plea of guilty an appeal against conviction can only be entertained if it appears that either the appellant did not appreciate the nature of the charge or did not intend to admit guilt, or if the admitted facts could not in law have led to a conviction of the offence charged. In R v Pugh, Doyle CJ made clear that the statutory appellate jurisdiction expands rather than limits the grounds referred to by Avory J in Forde.[5] In some instances a miscarriage of justice involving a blend of two distinct limbs identified in Forde may occur. Thus, for example, a person may not appreciate the nature of the charge as they are not aware that they have a defence and therefore cannot be convicted. The appellant submits that this is an example of such a case.
[5] R v Pugh (2005) 158 A Crim R 302 at [32]-[33].
The appellant was charged with aggravated assault. So as to appreciate the nature of that charge she needed to have at least a working knowledge of the elements of that charge, at least in general terms. However, it is apparent from the submissions in mitigation of penalty that she was not aware that an assault can only be established where the physical contact occurred without lawful excuse. Self-defence is one such lawful excuse. On the facts disclosed by the appellant, which were not challenged by either the Magistrate or the prosecutor, there was a verbal dispute between the complainant and the appellant about money. The complainant came towards the appellant with a raised voice. He is much bigger and hence can be intimidating to her. She placed her hands on his face. While the degree of force was not specified, it can be inferred from the prosecutor’s submissions that no injuries were caused. The appellant therefore submits that proportionality issues do not appear to arise on the available information.
The appellant further submits that it is not the role of these proceedings to determine conclusively the guilt or innocence of the appellant. It is sufficient that the appellant unknowingly raised a defence to the charge during her submissions in mitigation of penalty and thereby betrayed her misunderstanding of the offence to which she had pleaded guilty. The acceptance of her plea in these circumstances resulted in a miscarriage of justice. For that reason, the plea should be set aside and the matter remitted to the Magistrates Court for rehearing.
The appellant submits that similar issues arise in relation to the intervention order. The Court was required to be satisfied on the balance of probabilities that without intervention the appellant was likely to commit acts of abuse in the future.
The intervention order was entered without admission to the facts. It appears that the police relied upon the action of the appellant in placing her hands on the face of the protected person to justify the intervention order. The appellant has no criminal history. It also appears that her relationship with the protected person has come to an end. There is no basis for a reasonable apprehension that there will be a future act of abuse without the intervention of the Court. The appellant did not understand the nature of this order and should never have agreed to it. The confirmation of the order should be set aside and the matter remitted back to the Magistrates Court for rehearing.
The respondent’s submissions
The respondent alleges that the appellant’s estranged husband contacted the police on 17 March 2022 and reported that during the course of a verbal confrontation the previous day at the family home he had been punched twice in the face by the appellant who had also pulled a knife on him. He had then moved out of the family home. At that time he requested that no action be taken by the police. However, on 24 March 2022, he again contacted the police and alleged that the appellant had attended at his rental property twice the previous day and refused to leave on the second occasion until he telephoned the police.
On 28 March 2022, the appellant was interviewed by the police. She admitted arguing with her estranged husband on 16 March 2022. She stated that she had approached him and grabbed either side of his face in frustration. She admitted picking up a knife before putting it down. She also alleged that her husband had pushed her up against a wall and that he was physically much bigger and stronger than she was. She was reported by the police for aggravated assault and served with the interim intervention order.
The facts put to the Court by the police prosecutor were entirely consistent with the appellant’s record of interview but significantly different from the facts as alleged by her husband. The respondent submits that the burden of persuading the Court that a miscarriage of justice has occurred is a heavy burden that lies on the appellant.[6] There is a public interest in the finality of legal proceedings and for that reason an appeal against a conviction or a plea of guilty should be approached with caution.[7] Where a plea of guilty has been entered in the exercise of a free choice by, and in the interests of, the person entering the plea, it is unlikely that a miscarriage of justice would occur if a court has acted on such a plea.[8] It is not in the public interest to allow a plea of guilty to be set aside because of second thoughts or late regrets.[9]
[6]     R v Young [1982] Vic SC 482, (Court of Criminal Appeal of Victoria, Starke, Crockett and O’Bryan JJ, 2 December 1982).
[7]     Tsavalas v Police [2016] SASC 103 at [13]-[17].
[8]     Meissner v The Queen (1995) 184 CLR 132 at 141.
[9]     R v Stewart [2010] SASCFC 72, Doyle CJ with David and Peek JJ agreeing at [44].
The respondent submits that the appellant has not produced any evidence to indicate that she was not afforded an opportunity to obtain legal advice. To the contrary, there is positive evidence from the affidavit of the police prosecutor that he had told the appellant of her right to obtain legal advice on two occasions, those being on the telephone and then immediately prior to the hearing on 12 April 2022. Thus, the respondent submits that ground 3.2 must fail.
The respondent also submits that the appellant has not produced any evidence to show that she was “induced” by the prosecutor to enter a guilty plea. The appellant has not made clear what the inducement is alleged to have been, nor is it clear what “representations” are alleged to have been made. Thus, ground 3.3 must fail.
The respondent submits that the Magistrate took the necessary steps to ensure that the appellant was exercising her own free choice and was fully appraised of the situation when she entered a plea of guilty. The prosecutor informed the Court that there was an agreed factual basis and that a guilty plea was to be entered. The Magistrate then asked the appellant if she agreed to that and understood that to be the position. She agreed. The respondent submits that there was nothing in this exchange that should have alerted the Magistrate that the appellant was not in any way of sound mind or had misunderstood the proceedings or that she was not exercising her own free choice in her own best interests. In this context, the respondent refers to the observations made by the High Court in Meissner v The Queen.[10] The factual basis for the charge outlined by the prosecutor was accepted by the appellant without objection. The Magistrate asked her if she agreed. She not only agreed but stated that it was the wrong thing to do. The respondent submits that by confirming with the appellant that she agreed with what was about to happen and also agreed with the factual basis that was put to the Court, the Magistrate had discharged his obligation to ensure that the appellant understood what was taking place consistently with the reasoning in Cooling v Steel. The respondent submits that the disclosure by the appellant upon questioning by the Magistrate that her husband was physically bigger than her, that he was intimidating in nature, and that he had raised his voice prior to the assault, may or may not have enlivened a potential defence of self-defence so as to require the intervention of the Magistrate. What is necessary and appropriate must be assessed having regard not only to the practical realities associated with the caseload faced by magistrates, but also the circumstances of the particular case.[11] The Magistrate had been informed that:
·The matter had resolved on an agreed factual basis;
·The appellant had wanted the proceedings finalised quickly and the aggravated assault matter had been called on early expressly for that purpose; and
·The appellant had put her hands on the face of the complainant in frustration and that she knew that it was the wrong thing to do.
[10] (1995) 184 CLR 132, Brennan, Toohey and McHugh JJ at 141.
[11] Tsavalas v Police [2016] SASC 103 at [34].
Even if the Magistrate had become concerned that a potential defence had been raised, it was open and reasonable for him to convict and sentence the appellant on the agreed basis taking into account the matters referred to in the previous paragraph. As the High Court stated in Meissner, “There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence”.[12] The respondent submits that a person may plead guilty to an offence which they are not guilty of for many reasons, including where it is convenient to do so in order to have a matter finalised as quickly as possible.
[12] (1995) 184 CLR 132 at 141.
The respondent submits that this case is similar to Bollen v Police.[13] In that matter, the appellant had pleaded guilty to a breach of a condition of a bail agreement. He had stated to the Magistrate that he wished to plead guilty notwithstanding that he denied the offending and that he was under duress. Kimber J dismissed the appeal after observing that the “principal question is whether there is a reasonable apprehension that justice miscarried in the court below”.[14]
[13] [2022] SASC 82.
[14] Ibid at [22].
Whether or not there has been a miscarriage of justice turns on the particular circumstances and whether the plea was entered as a result of a general choice on the part of the appellant.[15] In this case, it is important to take into account the overall effect of the decision by the Magistrate, i.e.:
·The appellant was sentenced entirely on the basis of her own admissions to police. Those facts deviated substantially from the more serious allegations made to police by her estranged husband;
·No conviction was recorded against the appellant;
·The appellant did not receive any penalty from the offending; and
·The intervention order was confirmed without any admission of wrongdoing.
[15] R v Pugh (2005) 158 A Crim R 302, Doyle CJ at 319.
For these reasons, the respondent submits that in all the circumstances there has been no miscarriage of justice and the appeal should be dismissed.
Consideration
The affidavit of the police prosecutor also referred to matters that allegedly occurred subsequent to the two decisions that are under appeal. I can only have regard to the facts as they stood when the matter came before the Magistrate. The additional material was not relevant to the appeal and should not have been included in the affidavit.
Doyle CJ stated in R v Stewart, with David and Peek JJ agreeing, that a court must approach appeals where an appellant seeks that a plea of guilty be set aside with great care.[16] His Honour also added that it is not in the public interest to allow such a plea to be set aside because of second thoughts or late regrets. The ultimate question is whether there has been a miscarriage of justice.[17] The earlier more formalistic approach applied in R v Forde[18] no longer prevails.[19]
[16] [2010] SASCFC 72 at [44].
[17] Ibid at [42].
[18] [1923] 2 KB 400 at 403.
[19] R v Stewart [2010] SASCFC 72 at [42].
In R v Stewart, Doyle CJ adopted with approval[20] a passage from the judgment of Wood CJ at CL in R v Wilkes[21] where his Honour had adopted observations made by Badgery-Parker J in an unreported decision. Badgery-Parker J had stated:
The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts … and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea ‘was not really attributable to a genuine consciousness of guilt’: per Scholl J in Murphy. If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Justice Scholl ‘an issuable question of guilt’ – to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.
[20] Ibid at [45].
[21] (2001) 122 A Crim R 310 at [16].
A passage from the judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen is also of direct relevance to this appeal.[22] In that case their Honours stated:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
[22] (1995) 184 CLR 132 at 141.
Before applying the principles set out in those authorities, it is necessary to consider the appellant’s contentions based upon the principles set out by Wells J in Cooling v Steel. The appellant contends that the Magistrate failed to adhere to the Cooling v Steel principles in five respects. However, those submissions must be considered in the particular context of the matter before the Magistrate.
The prosecutor informed the Court that the assault charge was to proceed on the basis of a plea of guilty to agreed facts. The prosecutor sought leave to withdraw the allegation that a weapon had been used in the assault. At that point, the Magistrate questioned the appellant as to whether she agreed that the matter was to be dealt with that day by her entering a guilty plea. She informed the Magistrate without hesitation that she agreed with this approach. Although the appellant was not legally represented, the effect was to inform the Magistrate that the parties had negotiated to reach a mutually acceptable position. The decision of the prosecution to withdraw the allegation that a weapon had been used was favourable to the appellant. If she were to have been found guilty of an assault involving the use of a weapon, that would have been more likely to have resulted in the imposition of a conviction and a not insignificant penalty.
The comment by the prosecutor that the police were uncertain as to their own case might explain the willingness of the prosecution to reach agreement with the appellant and to withdraw the allegation relating to the weapon. Be that as it may, the fact is that the prosecutor relied entirely upon the appellant’s version of the facts and, when asked by the Magistrate, she specifically acknowledged that those facts were correct.
I have listened to the recording of the proceedings on numerous occasions (there being no transcript available) and, leaving aside the pause for four seconds when the appellant was asked to enter a plea, I hold no doubt that her oral presentation was not such as to alert the Magistrate that she did not freely and knowingly agree to the matter being resolved in the manner proposed by the prosecutor in his opening submissions. Apart from that brief pause, she responded clearly and without hesitation to the questions asked by the Magistrate.
I reject the contention on behalf of the appellant that the reference by the prosecutor to a “common sense resolution” should have alerted the Magistrate that the appellant may have been induced to adopt a course that was not in her best interests. The prosecutor’s comment was consistent with the undisputed desire of the appellant to have the matter resolved as quickly as possible. It was also consistent with the decision of the prosecution not to proceed with the allegation relating to use of a weapon and to rely solely on the appellant’s version of the facts. Moreover, the impugned phrase was also consistent with the observation by the Magistrate that the alleged assault was at the very lowest end of the scale of seriousness.
For the preceding reasons, I reject the contention on behalf of the appellant that the Magistrate erred in failing to enquire as to whether she intended to seek legal advice and by failing to explain to her the potential consequences of a guilty plea. In the particular circumstances, the Magistrate was entitled to accept that the appellant had been able to conduct negotiations with the police that had resulted in the matter being presented to the Court at an early date and with the prosecution not pressing for a conviction.
The further issue is whether the delay of four seconds between the appellant being asked to enter a plea and her response should have caused the Magistrate to enquire as to her understanding of the proceedings.
After the prosecutor explained to the Court that the matter was to be resolved by a plea on the basis of agreed facts, the Magistrate asked the appellant whether that was what she expected to occur. She replied “Yes”. The prosecutor then outlined the relevant facts which were based entirely on the appellant’s version of events. He made it clear that the prosecution was not seeking a conviction. Following that submission, the Magistrate asked the appellant if the facts outlined by the prosecutor were correct. Once again, she stated “Yes”. After she had entered the guilty plea, the appellant specifically acknowledged that placing her hands on her estranged husband’s face was the “wrong thing to do”. The prosecutor expressly stated that he was not seeking that the appellant be convicted but, of course, the question of penalty was a matter for his Honour.
The appellant stated in her affidavit that during the four-second pause before she admitted her guilt, the prosecutor was nodding. This made her feel as though she should say guilty. The Magistrate had asked the appellant “Do you plead guilty or not guilty?” The appellant does not explain in her affidavit why or how the action of the prosecutor in nodding influenced her as to which of those two choices she should adopt. For that reason, combined with her immediate and express agreement less than a minute earlier to the proposed resolution as explained to the Court by the prosecutor, I am not persuaded that the Magistrate erred by not enquiring with the appellant as to her understanding of the proceedings.

In Cooling v Steel, Wells J stated that a magistrate should “be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty”.[23] His Honour went on to state that if the court considers that the plea of guilty should not have been entered, the defendant should be asked whether he or she adheres to their explanation and, if they do, a plea of not guilty should be recorded. The same point was made in the passage from the judgment of Badgery-Parker J that I have set out above at [48]. Moreover, the fundamental question is whether a miscarriage of justice has occurred.
[23] (1971) 2 SASR 249 at 251.
Thus, a question arises as to whether the Magistrate should have inquired as to whether the assault charge might be defended on the basis of self-defence when the appellant informed the Court that her husband had approached her with a raised voice, was intimidating and was physically much stronger than her. The question might also have arisen as to whether the appellant’s action in placing her hands on the sides of her husband’s face while saying “listen to me” lay within the limits of what would generally be accepted in the community as normal incidents of social interaction or community life.
I stress that it is not my role in this appeal to determine whether either of those defences could be made out on the facts. The question is whether, after conducting an independent review, I consider that the circumstances were such that the appellant may possibly have had available to her a defence to the charge of assault such that the plea of guilty should not have been accepted without closer adherence to the Cooling v Steel principles.
The appellant provided the information to the Court about the circumstances in which she placed her hands on her husband’s face, his personality and his strength in response to questions asked by the Magistrate. Those questions were clearly intended to establish the gravity of the appellant’s conduct for sentencing purposes. To that end, the Magistrate had asked questions that were clearly directed at establishing whether the appellant’s husband was vulnerable in any way. However, it does not matter why the information was sought or provided. The issue is whether it was sufficient to raise a reasonable possibility of a defence to the assault charge.
The appellant explained her actions on the basis that she was endeavouring to get her husband to listen to what she was saying about a financial settlement. Her explanation was that she was frustrated that he was not listening or responding to her. She placed her hands on his face to reinforce her plea that he should take notice of what she was saying. Having listened to the recording multiple times, I do not consider that the appellant was in any way suggesting that she acted out of fear or to protect herself. To the contrary, as she very specifically said, she was acting in frustration because she was not being listened to. Most importantly, she did not suggest that her actions were intended to stop him from assaulting her. Accordingly, having independently reviewed the evidence and proceedings, I do not consider that there was a reasonable possibility that a defence of self-defence arose on the facts presented by the appellant to the Magistrate. I reject the contention that the Magistrate erred by not pursuing that issue and determining whether the plea of guilty should be set aside.
The further question is whether the action of the appellant in placing her hands on the sides of her husband’s face was conduct that lay within the limits of what would generally be accepted in the community as normal incidents of social interaction, i.e., did her conduct fall within the defence provided in s 20(2) of the CLCA? If that defence arose on the evidence, it would have been necessary for it to be disproved by the prosecution.[24] The Magistrate observed that the conduct of the appellant was at the very lowest end of the scale of conduct that would amount to an assault. I agree with that observation.
[24] R v Abusafiah (1991) 24 NSWLR 531 at 541.
The appellant was unrepresented and would presumably not have been aware of the defence in s 20(2) but acknowledged that her conduct amounted to doing the “wrong thing”.
Whether or not the action of placing one’s hands on the face of another would be generally accepted in the community as a normal incident of social interaction depends very much upon the context in which that action occurs. In this case all that is known about the context is that the conduct occurred during the course of a seemingly heated discussion about financial interests between an estranged couple. I strongly doubt that in this context such conduct would generally be accepted in the community as a normal incident of social interaction although that is not a question that I need to decide in this appeal.
The fact that the appellant chose to plead guilty on the basis of agreed facts limited the information supplied to the Magistrate. Much of the information about context came in response to the questions asked by his Honour for sentencing purposes. There was nothing in those answers, nor in the prosecution submissions, to alert his Honour to the possibility that the defence in s 20(2) may have been available to the appellant. I am satisfied that the Magistrate did not err in failing to determine whether the plea of guilty should be set aside due to the potential availability of the defence in s 20(2) of the CLCA.
I am satisfied that the appellant’s acknowledgment that her conduct constituted doing the “wrong thing” was indicative of a genuine consciousness of guilt in the sense referred to by Badgery-Parker J in the passage quoted at [48].
On one view, the early resolution of the matter on the basis of agreed facts with the prosecution withdrawing the allegation relating to the weapon and not pressing for a conviction might be regarded as an inducement to enter a guilty plea. However, even if that view is adopted, as the High Court held in Meissner, an inducement to plead guilty may be offered simply to assist the person charged to make a free choice in their own interests. Here, the appellant entered her plea in the exercise of a free choice to secure a speedy resolution and did not dispute in any respect the matters put to the Court by the prosecution. In these circumstances, I do not consider that a miscarriage of justice has occurred.
For the several reasons set out above, I dismiss the appeal against the acceptance and recording of the plea of guilty to the charge of aggravated assault.
I turn to the appeal against the confirmation of the interim intervention order. That order was confirmed “without admission to the facts”.
The appellant submits that she has no criminal history and it appears as though her relationship with her estranged husband is at an end. On that basis, she contends that there was no reasonable apprehension that there would be a future act of abuse without the intervention of the Court. She did not understand the nature of the intervention order and should never have agreed to it. For these reasons, the order should be set aside and the matter remitted back to the Magistrates Court.
The respondent contends in its written submissions that the intervention order had been confirmed by consent without any admission of wrongdoing and the appeal should be dismissed.
Section 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides as follows:
There are grounds for issuing an intervention order against a person (the defendant) if––
(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
Section 7(1)(a) provides that an intervention order may be issued for the protection of any person against whom it is suspected the defendant will commit an act of abuse. Section 8(1) specifies that “Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse”. Section 8(2) provides that an act is an “act of abuse” against a person if it results in or is intended to result in, amongst other things, physical injury or emotional or psychological harm.
Thus, before issuing an intervention order, the court must conclude that it is reasonable to suspect that without intervention the defendant will commit an act of abuse against a person and, secondly, that the issuing of an order is appropriate in the circumstances.
During submissions, I observed that s 6 requires that before a court may issue an intervention order it must be satisfied of the matters specified therein and canvassed the possibility that this requirement was a jurisdictional fact. A party cannot concede jurisdiction and the court must always satisfy itself that it has the necessary jurisdiction. On reflection, for the reasons which follow, I have concluded that s 6 does not operate by way of a jurisdictional fact finding.
As Dixon J (as he then was) observed in Parisienne Basket Shoes Pty Ltd v Whyte, a finding that a statute imposes a jurisdictional fact requirement upon an inferior court is so inconvenient that it should not be adopted unless the intention is clearly expressed.[25] The plurality of the High Court in R v McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) suggested that only constitutional facts should be treated as jurisdictional facts, e.g., that there was an interstate industrial dispute.[26] Obviously the facts identified in s 6 are not constitutional facts and nor is an intention that they be treated as jurisdictional facts clearly expressed. Thus, because the facts specified in s 6 are not jurisdictional facts, the Court could be properly satisfied of the matters required under s 6 by way of a concession by a defendant.
[25] (1938) 59 CLR 369 at 391.
[26] (1995) 184 CLR 620, Brennan CJ, Deane and Dawson JJ at 644.
The question is whether, in light of the assault and the ongoing financial dispute, it was reasonable to suspect that the appellant would, without intervention, commit a further act of abuse against her estranged husband. If so, was the issue of an intervention order appropriate in the circumstances? Because of the appellant’s consent to the order, the Magistrate did not specifically address those questions in his reasons or in response to submissions.
The Court was informed by the prosecutor that there were ongoing matters between the appellant and her estranged husband concerning their financial interests. As previously noted, the assault to which the appellant had pleaded guilty, albeit at the very lowest end of the scale of seriousness, had occurred in the context of a discussion about their financial interests. The prosecutor also informed the Court that the making of the intervention order was part of the agreed outcome and the “common sense solution”.
Before confirming the interim intervention order, the Magistrate explained to the appellant the effect of the proposed order. Subsequently, when sentencing for the assault, his Honour noted that the appellant did not have any prior convictions and that “if you were the sort of person that were inclined to resort to violence when you didn’t get your own way, we would have seen you by now”. His Honour concluded with the observation that “the intervention order no doubt will mean that the chance of this happening again are hopefully nil”.
I reject the appellant’s submission that she did not understand the intervention order. Most importantly, she has not made that assertion in her affidavit. When the Magistrate explained the effect of the order to her, she stated without hesitation that she understood. Moreover, the basic effect of such an order is not difficult to understand and the recording of the proceedings indicates that the appellant is articulate.
The appellant consented to the interim intervention order being made final without admission as to the facts. Given that she had admitted to the facts that constituted the elements of the aggravated assault against her estranged husband, the facts that were not admitted could only have been whatever other facts may have been alleged in the affidavit made by the appellant’s husband in support of the application for a final order. That affidavit is not before this Court.
Leaving aside the lack of an admission to any additional facts alleged by her estranged husband, the effect of the appellant’s consent to the making of a final intervention order was to concede that the requirements of s 6 were satisfied. In other words, she conceded that it was reasonable to suspect that she would, without intervention, commit a further act of abuse against her estranged husband, and that the issue of an intervention order was appropriate in the circumstances.
In the context of the ongoing dispute between the appellant and her estranged husband concerning their financial affairs, her plea of guilty to aggravated assault (albeit without conviction or penalty), and the fact that the making of the intervention order was part of the agreed outcome between the appellant and the police, I do not consider that the Magistrate erred by confirming the interim intervention order. I find that there was no miscarriage of justice or other error.
Conclusion
I dismiss the appeal against conviction on the charge of aggravated assault. I also dismiss the appeal against confirmation of the interim intervention order.