Gavin WILLIAMS v The Queen
[2011] ACTCA 24
•10 November 2011
GAVIN WILLIAMS v THE QUEEN
[2011] ACTCA 24 (10 November 2011)
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – appeal against conviction on plea of guilty – no grounds on which to permit plea of guilty to be withdrawn – appeal dismissed.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – appeal against conviction – adjournment refused by trial judge – no error in refusing adjournment – appeal dismissed.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – appeal against sentence – appeal against sentence withdrawn – appeal dismissed.
Crimes (Sentence Administration) Act 2005 (ACT)
Meissner v The Queen (1995) 184 CLR 132
R v Gomez (2007) 1 ACTLR 145
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 32 of 2009
No. SCC 107 of 2008
No. SCC 169 of 2008
Judges: Refshauge, Penfold and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 10 November 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2009
) No. SCC 107 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 169 of 2008
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GAVIN WILLIAMS
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge, Penfold and Lander JJ
Date: 10 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2009
) No. SCC 107 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 169 of 2008
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GAVIN WILLIAMS
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Lander JJ
Date: 10 November 2011
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE AND LANDER JJ:
On 15 October 2009, the appellant was convicted on his own plea of guilty of one charge of assault on a Mr Gardner, and one charge of contravening a protection order.
The appellant’s plea to the two charges was accepted by the respondent in satisfaction of an indictment that included a second count of assault on Mr Gardner.
The following day, the court ordered that the appellant be released immediately on the following conditions:
(a) the offender sign an undertaking to comply with the conditions of this order;
(b) the offender be of good behaviour for a period of 12 months;
(c) the offender comply with the offender’s good behaviour obligations including, the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005;
(d) the offender is to perform 120 hours of community service in respect of each count to be completed in a period of 12 months from today;
(e) the offender is to present himself to Corrective Services within 7 days;
(f) the good behaviour order will include a probation order, to present himself to the probation officer within 7 days of today.
The appellant has appealed against both the convictions and the decision to release him on conditions. The grounds of appeal are:
The defendant was denied legal representation.
The defendant was denied an adjournment to allow the assignment of fresh representation.
The appellant represented himself at the hearing of the appeal.
Although the grounds of appeal do not suggest so, the appellant said during the hearing that his Notice of Appeal should be understood to mean both an appeal against conviction and in the alternative an appeal against sentence. Later, when he was told the Court could increase the sentence, he withdrew his claim that he was appealing against sentence.
For the reasons that follow, the appeal must be dismissed.
Facts
The case statements showed that Mr Gardner was in a de facto relationship with Ms Famke, who is the mother of the appellant’s son and who was previously in a similar relationship with the appellant.
On 30 August 2007, the appellant attended at Mr Gardner’s place of business and asked to see him. Mr Gardner asked the appellant to leave the premises. After the appellant had made reference to his former partner’s relationship with him, the appellant punched Mr Gardner in the head with his right fist. He continued to punch Mr Gardner causing Mr Gardner’s glasses to fall to the ground. A man who had been sitting nearby stood up and placed himself between the appellant and Mr Gardner.
On the same day Mr Gardner obtained a protection order in respect of the appellant. This protection order was served on the appellant by a police officer on 1 September 2007 at about 7:50am.
Later on 1 September, Mr Gardner and Ms Famke attended the Canberra Centre in Civic. They separated briefly in order to attend to different errands. While they were apart Ms Famke was approached by the appellant. The appellant asked Ms Famke where his child was. He began to abuse her. Ms Famke decided to attend a police station. She called Mr Gardner and told him to meet her at the police station.
Mr Gardner arrived at the police station before Ms Famke. As Ms Famke approached the door to the police station, the appellant walked past her through the doors into the reception area where Mr Gardner was standing on his own. Mr Gardner took two steps backwards and raised both his hands with his palms outwards in a defensive or submissive gesture, whereupon the appellant punched him on the left side of the face with his right hand.
Two police officers were standing behind a glass window. They intervened and separated the parties.
The altercation was captured on CCTV.
The appellant admitted to police officers that he had struck Mr Gardner and that he was aware that a protection order was currently in force. He was charged with two counts of assault and one count of contravening a protection order.
On 23 September 2009, Mr S Jackson, the solicitor who had been acting for the appellant, filed a withdrawal notice in relation to his representation of the appellant.
The matter was listed before a Judge of this Court for trial on 15 October 2009. When the matter was called on, a barrister, Mr T Crispin, appeared on behalf of the appellant. He informed the Judge that about four weeks before the hearing his instructing solicitor Mr Jackson had informed him that he would be withdrawing from the matter and that, accordingly, Mr Crispin’s instructions were terminated.
The appellant informed the Judge that he had been told by Mr Jackson that he was organising for a replacement solicitor. The appellant sought an adjournment of the trial so that he could obtain representation.
The Judge was not satisfied that an adjournment would lead to representation for the appellant. He formed this view on the basis that the previous solicitor had withdrawn and that this withdrawal meant that legal aid had been terminated.
As the trial Judge noted, there was nothing before him to suggest that the appellant was likely to receive legal aid if he had made a further application for it, or that he was entitled to any other form of legal assistance.
After the Judge announced his refusal to grant an adjournment of the trial, the appellant sought a short adjournment to speak to a member of his family. The Judge adjourned the proceeding for a short time and, when it resumed, the prosecutor informed the Judge that the appellant would plead guilty to counts 1 and 3, and that those pleas would be accepted in full satisfaction of the indictment.
The prosecutor said:
Your Honour, if I could assist at this stage seeing as he’s [the appellant] unrepresented. And I must take this opportunity to thank Mr Crispin for giving independent legal advice … to Mr Williams and I understand on his advice Mr Williams is prepared to plead guilty to the first count, which is the assault on 30 August 2007, and also to the third count, which is on 1 September 2007. He breached the protection order.
After a short exchange between the Judge and the prosecutor, the appellant was asked whether he understood that he was pleading guilty to counts 1 and 3, and that that would be in full satisfaction of the indictment. The appellant said, “Yes, I do, your Honour.”
The appellant was arraigned upon the two counts and pleaded guilty. After the pleas were entered, the prosecutor tendered the two case statements relevant to the separate convictions. Both case statements contained material that had been redacted. The prosecutor also sought to tender the appellant’s criminal history. The Judge asked whether the appellant had seen that history, and the appellant asked to be allowed to speak to Mr Crispin who was in court. He did so, and then acknowledged the correctness of the criminal record.
The Judge then adjourned the proceeding to the next day to allow a Pre-Sentence Report to be obtained.
The following day Mr Gardner was called to give evidence. He was cross-examined by the appellant.
During his cross-examination, the appellant asked Mr Gardner whether he had been hurt as a result of any altercation between him and the appellant. Mr Gardner said he had been. It was put to Mr Gardner that he had informed the police that the appellant was a “wimp”, and that in fact he was unhurt. Mr Gardner was not cross-examined as to whether or not the assault or the breach ever occurred.
Consideration of submissions
The two events occurred more than two years before the trial commenced.
The count of assault involved quite straightforward allegations, although the second charge to which the appellant pleaded guilty was not of assault but of contravening a protection order.
It is impossible to see what the appellant’s defence might have been and, indeed, he did not proffer a defence, but instead pleaded guilty to the two counts.
The sentence that was imposed upon him was, in the circumstances, merciful. The Judge could well have imposed a sentence of imprisonment in respect of the first count. The second count to which the appellant pleaded was an aggravating circumstance of the first count because it occurred very shortly after a protection order had been served upon the appellant.
The appellant pleaded guilty to the charges. If he had been represented it is unlikely that a lawyer would have advised him otherwise.
It is also unlikely that even with the assistance of a legal practitioner the sentence imposed would have been more favourable.
In any event, the appellant’s appeal is, in effect, an application to withdraw his pleas to the first and third counts on the indictment.
The effect of a plea of guilty is to acknowledge all of the elements of the offence with which the party pleading is charged, “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”: Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J.
As such, the Court will only permit a plea to be withdrawn if the Court is satisfied that a miscarriage of justice has occurred: see R v Gomez (2007) 1 ACTLR 145 at 152.
On this appeal, the appellant did not seek to tender any evidence in support of the submissions that he made. Accordingly, his submissions were without any factual basis.
He said that he did not know until he arrived at the court that Mr Jackson would not be acting for him or that in fact Mr Jackson was overseas at the time.
The transcript shows that he told the Judge that Mr Jackson was overseas, but the appellant said on the appeal that he was told that by Mr Crispin during the hearing.
He said that he thought the Judge would give him an adjournment so that he could be represented by a lawyer during his trial. He said that he was surprised when the application for the adjournment was refused.
He spoke to his mother about what he should do, and his mother advised him to plead not guilty, although he failed to follow that advice and instead entered his pleas.
He said that he received no advice from Mr Crispin.
He said the entry of his pleas was unintentional and that the transcript showed that even after he entered his pleas he was still maintaining his innocence.
As we have said, there is no factual basis for the submissions which were put and, if anything, some of the submissions appear to be inconsistent with the transcript.
As noted above, the appellant sought to have the matter adjourned so that he could speak to a member of his family. During the short adjournment allowed by the Judge, the appellant spoke with the prosecutor and secured the withdrawal of the second count in consideration of his pleading to the first and third counts. He also obtained the prosecutor’s agreement to the redaction of parts of the two case statements.
Moreover, the prosecutor advised the Judge that the pleas were being entered on the advice of Mr Crispin, a statement which the appellant did not correct or refute at the time.
During his submissions to this Court, the appellant admitted that he had in effect contravened the protection order.
In relation to the charge of assault, the appellant said that both he and Mr Gardner traded blows. That statement was inconsistent with the case statement that he allowed to go before the Judge.
The appellant said that he was intimidated by the Judge and that the Judge would not allow him an adjournment and insisted that the matter go on. There is nothing in the transcript that would support such a submission. The transcript shows that the Judge endeavoured to ascertain whether the appellant was entitled or might be entitled to legal assistance and, when he satisfied himself that the appellant was not entitled to such assistance, he refused the adjournment.
The appellant’s contention that his cross-examination of Mr Gardner indicated that he was continuing to maintain his innocence even after he pleaded cannot be accepted. Cross-examination of Mr Gardner assumed that there had been an assault because the appellant put to Mr Gardner that he suffered no injury, not that he was not assaulted.
The appellant put his arguments to the Court clearly and forcefully. He is obviously an intelligent man, and his conduct in the Court was such that it is impossible to think that he might have been intimidated or overborne in the trial process.
There is no evidence that the appellant was subject to any form of duress or intimidation at the time that the plea was entered. An application for an adjournment had been refused, but in the circumstances that ruling was appropriate. The appellant could have proceeded to represent himself, but instead he chose to plead guilty.
There is nothing in our opinion that would justify this Court allowing the appeal for the purpose of setting aside the appellant’s pleas.
As we have said, at one stage the appellant indicated that his Notice of Appeal ought to be understood as being an appeal against sentence.
Having regard to the case statements, which were not refuted at the trial, and the appellant’s criminal history, which is unfortunately reasonably extensive, the appellant was very lucky to escape with the sentence that he did.
When he was told by the Court that the members of the Court thought the sentence was lenient, and that the Court had power to increase the sentence, he withdrew any suggestion that he should be understood to be appealing against sentence.
If he had maintained an appeal against sentence, it would have been dismissed, and the Court would have considered increasing the sentence.
The appeal should be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Justice Refshauge and Justice Lander.
Associate:
Date: 10 November 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2009
) No. SCC 107 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 169 of 2008
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GAVIN WILLIAMS
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Lander JJ
Date: 10 November 2011
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
Introduction
The appellant Gavin Williams was charged with two counts of assault and one of contravening a protection order, and pleaded not guilty to all charges. On the day set down for his trial to begin, he pleaded guilty to one of the assault charges and the charge of contravening a protection order, which pleas were accepted in full satisfaction of the indictment. He was sentenced the next day, being ordered to sign an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months and to perform 120 hours of community service in respect of each count within that period of 12 months.
Mr Williams now appeals against his conviction and sentence.
The facts
The incidents giving rise to the charges occurred in 2007, more than two years before the appellant’s trial was to commence.
The complainant in relation to all the offences was a Mr Gardner, who was at the time in a de facto relationship with a woman, Ms Famke, who had previously been in a similar relationship with the appellant and is the mother of the appellant’s daughter. On 30 August 2007, the appellant went to Mr Gardner’s workplace to see him. Mr Gardner asked him to leave, but the appellant punched him several times, and Mr Gardner’s glasses fell off. The appellant and Mr Gardner were separated by another man who was nearby. On the same day, Mr Gardner obtained a protection order requiring the appellant, among other things, not to be within 100 metres of Mr Gardner except at court.
The protection order was served on the appellant early in the morning of 1 September 2007. Later that day, Mr Gardner and Ms Famke went shopping in Civic. Mr Gardner left Ms Famke briefly and she was approached by the appellant, who wanted to know where his daughter was. The appellant became abusive and Ms Famke decided to go to the nearby City Police Station. She phoned Mr Gardner and asked him to meet her there.
Mr Gardner reached the police station first. As Ms Famke approached the door, the appellant walked past her into the reception area where Mr Gardner was waiting. Mr Gardner stepped back as the appellant approached him and raised his hands, with palms upwards. The appellant punched Mr Gardner on the left side of his face. Two police officers who observed the incident intervened and separated Mr Gardner and the appellant, who admitted striking Mr Gardner and also said that he knew that a protection order was in force. The incident was recorded on CCTV.
The trial
The appellant’s trial was set down for 15 October 2009.
On 23 September 2009, the solicitor on record, Simon Jackson, filed a notice of withdrawal in relation to his representation of the appellant.
On the morning of the trial, Tim Crispin of counsel appeared. Mr Crispin told the court:
(a) that he had been briefed to appear for the appellant; and
(b) that about four weeks earlier his instructing solicitor, Mr Jackson, had told him that he would be withdrawing from the matter and that Mr Crispin’s instructions were terminated.
The appellant told the court:
(a) that Mr Jackson was then overseas;
(b) that Mr Jackson had told him that he would organise for a replacement solicitor; and
(c) that he sought an adjournment of the trial in order to organise legal representation.
The trial judge formed the view that the withdrawal of the appellant’s solicitor had terminated the appellant’s grant of legal aid. The appellant repeatedly referred to a forthcoming tribunal consideration of his grant of legal aid, but it appeared that this related to legal aid for a matter in the Family Court. No submissions were made to the effect that the appellant was likely to receive a further grant of legal aid for the criminal matter. On the basis that granting an adjournment would not result in the appellant obtaining legal aid, his Honour refused the application for an adjournment to allow further legal representation to be sought, and indicated that the trial would proceed with the appellant unrepresented. His Honour then adjourned for five minutes to allow the appellant to talk to Mr Crispin.
When the trial resumed, the appellant said that Mr Crispin was not in a position to represent him that day. The trial judge indicated that he would empanel a jury, but before he was arraigned the appellant sought a further short adjournment, to enable him to speak to a member of his family about the possibility of pleading to one of the charges.
After this adjournment, the prosecutor explained that an agreement had been reached, and the trial judge confirmed that the appellant understood what he had agreed to, in the following exchanges:
MR SAHU KHAN: Your Honour, if I could assist at this stage seeing that he’s unrepresented. And I must take this opportunity to thank Mr Crispin for giving independent legal advice … to Mr Williams and I understand on his advice Mr Williams is prepared to plead guilty to the first count, which is the assault on 30 August 2007, and also to the third count which is on 1 September 2007. He breached the protection order.
HIS HONOUR: Yes.
MR SAHU KHAN: And on that basis, once Mr Williams confirms that he is pleading to counts one and three, the Crown will accept that in full satisfaction of the indictment, your Honour.
HIS HONOUR: Yes, well, shouldn’t Mr Williams then be arraigned in respect of only counts one and three?
MR SAHU KHAN: Thank you, your Honour.
HIS HONOUR: And then you will indicate that the Crown will not proceed further in respect of the second count on the indictment.
MR SAHU KHAN: That is right, your Honour, thank you.
HIS HONOUR: Do you understand all of that Mr Williams?
THE ACCUSED: Yes, I do, your Honour.
The appellant was arraigned on counts one and three in the indictment and pleaded guilty to both counts. The prosecutor tendered two case statements, from which some material had been crossed out, apparently as a result of the discussions about the pleas of guilty. The prosecutor tendered the appellant’s criminal history. Before admitting it into evidence, the trial judge asked the appellant whether he had seen it, and allowed the appellant to speak to Mr Crispin, who was still in court, about the document. After speaking to Mr Crispin, the appellant acknowledged that the criminal record was correct and it was received in evidence. The trial judge then convicted the appellant on two counts, and indicated his sentencing intentions. He adjourned the matter until the following day in the hope that a brief pre-sentence report could be obtained.
When the matter resumed the next morning, Mr Gardner gave an oral victim impact statement, and was cross-examined by the appellant as follows:
THE PRISONER: Yes. Were you hurt during any of these altercations that are alleged?
HIS HONOUR: To which you’ve pleaded guilty.
THE WITNESS: Yes, I was hurt. You hit me around the head and my ear was thick. I had a red head for days. I was bruised.
THE PRISONER: Isn’t it true that you told the court that you were unharmed and that you thought – I don’t know what the word was that you expressed about me, that I was a wimp?---No, that’s not the case.
Do you know the word you used?---I don’t – I don’t know what you’re talking about.
It’s in your statement, Mr Gardener?---I don’t know what you’re talking about.
You informed the police that I was a wimp and that you were unhurt?---I informed the police that you were a wimp?
Yes?---Why then would I take out a personal protection order against you?
Exactly. Is it possible - - -
HIS HONOUR: Okay, Mr Williams, that’s enough. You are rapidly approaching a stage when you are demonstrating that what I proposed to do yesterday is not appropriate.
The appellant was then sentenced as described at [59] above.
The appeal
Grounds of appeal
Although the appeal is expressed to be from both conviction and sentence, the grounds of appeal do not appear to relate to the sentence. The grounds are:
The [appellant] was denied legal representation.
The [appellant] was denied an adjournment to allow the assignment of fresh representation.
Appeal against conviction
The appellant represented himself on the appeal.
The appellant’s submissions included assertions of fact that were in some respects inconsistent with the material set out in the appeal papers, in particular the transcript of the hearing before the trial judge. Despite this, the appellant did not tender any evidence in support of those submissions.
The appellant’s appeal is, in effect, an application to withdraw his pleas of guilty to the first and third counts on the indictment. His argument appears to be that the conduct of the hearing, including what he sees as a denial of legal representation, took him by surprise and resulted in him entering pleas of guilty despite his intention to maintain his innocence.
As noted in the joint judgment at [35] above, the effect of a plea of guilty to a charge is to acknowledge all the elements of the offence charged. In Meissner v The Queen (1995) 184 CLR 132 (Meissner), Dawson J said at 157:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless 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.
In R v Gomez (2007) 1 ACTLR 145 the ACT Court of Appeal (Gray, Madgwick and Cowdroy JJ) referred to Meissner and said at [38]:
In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge.
The appellant’s oral submissions canvassed a claim that he was intimidated by the trial judge, his expectation of being represented at trial, and the circumstances in which he entered his pleas of guilty.
Was the appellant intimidated?
The appellant said that he was intimidated by the trial judge. His specific claim of intimidation appeared to relate to the trial judge’s refusal to let him continue cross-examining the complainant after he had given a victim impact statement, which the appellant explained as trying “to bring some facts in the case out”, saying “You can’t look at the case summary from the prosecutor and say this is the case”.
The appellant seems to have missed the point that he had by then pleaded guilty and agreed to the prosecutor’s case statement, with changes apparently negotiated with the prosecutor in the course of agreeing to plead guilty to two charges on the basis that the other charge would be abandoned. In those circumstances, treating the prosecutor’s amended case statement as “the case” is exactly what can be done.
The appellant also seems to have missed the more important point that he cannot rationally claim to have been intimidated into pleading guilty by the trial judge’s approach to the sentencing hearing that took place on the day after the pleas were entered.
The appellant’s expectation of being represented
At the appeal, the appellant said that he thought the trial judge would give him an adjournment so that he could be represented by a lawyer during his trial. He said that he was surprised when the application for the adjournment was refused.
The appellant said at the appeal that he did not know until he arrived at the court that Mr Jackson would not be acting for him or that in fact Mr Jackson was overseas at the time. When it was pointed out to him that the transcript showed that he told the trial judge that Mr Jackson was overseas, the appellant said that he was only told that by Mr Crispin during the hearing.
The appellant’s claim not to know that Mr Jackson would not be acting for him seems to be inconsistent with his statement to the trial judge that he had done nothing in the three weeks since he was notified of Mr Jackson’s withdrawal from his matter. Instead, he said, he had waited to come to court to ask for an adjournment so that the case could be prepared and he could get new representation. He also indicated that there was an outstanding issue in relation to the provision of legal aid, but as noted above, it seemed from comments by the appellant and by Mr Crispin that the appellant’s dealings with the Legal Aid Office related not to the criminal trial but to Family Court proceedings involving some of the same people involved in the criminal matters. The transcript shows that the trial judge was not convinced that there was any scope for the appellant to obtain legal aid representation in the criminal matter.
As noted above, the appellant then sought to have the matter adjourned so that he could speak to a family member. The appellant said at the appeal that he talked to his mother about what he should do, and that she had advised him to plead not guilty, but that he had ignored her advice.
It is apparent that during that adjournment the appellant also talked to the prosecutor, and agreement was reached that he would plead guilty to the first and third counts in full satisfaction of the indictment. The necessary amendments of the two case statements were also negotiated.
The appellant said at the appeal that he was not advised by Mr Crispin at this stage, but the prosecutor’s comments quoted at [71] above referred to Mr Crispin’s involvement in advising the appellant in dealing with the prosecutor, and those comments were not challenged by the appellant at the time.
The circumstances of the pleas of guilty
As mentioned, it seems that the appellant did have legal advice from Mr Crispin before he pleaded guilty, and that the pleas and the contents of the case statements had been negotiated with the prosecutor.
Nor was there anything surprising about the appellant’s pleas of guilty to two of the charges. The allegations were quite straightforward, relating as they did to assaults and a breach of the protection order all of which took place in the presence of witnesses. At the appeal the appellant conceded that he had contravened the protection order, although not without asserting that it was a “technical” breach and that he personally didn’t “agree with the breach”, and then stating that he did not admit to committing the offence. His cross-examination of the complainant Mr Gardner at the sentencing hearing (at [73] above) also seemed to assume that the alleged assaults had taken place, and focused only on the consequences of the assaults and what Mr Gardner had told the police afterwards.
The appellant told the Court of Appeal that his lawyer (presumably his former lawyer, Mr Jackson) had advised him that he had a good defence, but there was no indication of what that defence might have been. On appeal the appellant said that “In the event we [he and Mr Gardner] hit each other”, but there is no reference in the case statements to Mr Gardner engaging with the appellant in respect of either incident, and no possible defence appears from the descriptions of events set out in the case statements (summarised at [62]-[64] above) and agreed to by the appellant when he pleaded guilty.
On appeal the appellant said that he had not intended to plead guilty and that the transcript of proceedings before the trial judge showed that even after doing so he still maintained his innocence. This submission was made in reliance on the appellant’s cross-examination of Mr Gardner about the incidents that is set out at [73] above. It is notable that the appellant did not challenge Mr Gardner about whether he had actually been hit; this cross-examination gives no support to the appellant’s claim that he maintained his innocence.
The appellant made several references to the trial court’s failure to give him an opportunity “to controvert the plea of guilty”; it is not clear why he expected that, having pleaded guilty, he should then have been invited to challenge the implications of his own pleas.
The appellant also argued as follows:
I cannot explain why I entered pleas of guilty. I spoke from a position of panic and shock. I had great difficulty in understanding my position or my options. The judge was intent upon forcing me to run a trial unrepresented. I felt under great duress to simply minimise the harm that the judge [could] do to me. I was certainly not in any clear thinking state of mind to be able to make a thought out decision. I had thought the process indicated my intent to plead not guilty. The fact that it was not until after Spender J had refused an adjournment that I asked for people’s advice and ultimately entered a guilty plea to two of the charges would surely suggest that Spender J’s refusal of an adjournment might have played a part in unsettling my mind.
My mother was present and in discussions with her she insisted that I pleaded not guilty and fight it. Being intimate with the case and having a more mature appreciation of circumstances than I, I would think that my mother’s advice would have been sound.
...
The fact that I didn’t even follow my mother’s advice by pleading guilty and being - she being the only person who was available to assist me is evidence in my mind that I had something that my state of mind was unsettled. I submit that it was not the facts in the case nor my will to plead one way or another but rather it was severe shock that drove me to plead guilty, shock that seemed to me to be an ordinary procedure to seek an adjournment was not good enough at all for Spender J and a disturbing insecurity and nervousness in being told that I would have to run a trial by myself, a predicament that I am sure we can agree, would un-nerve the best of people.
These submissions are, however, inconsistent with the course of the original proceedings as transcribed and included in the appeal book, and in particular with the evidence quoted at [71] above.
The appellant said that the disappointment of his reasonable expectation of an adjournment put him in a position where a guilty verdict was likely, and submitted:
In that light my pleas of guilty are not admissions of all the elements of the offences but rather the unfelt mumblings of a man defeated, cornered and made powerless.
Was there a miscarriage of justice?
It is apparent from the transcript extracts already quoted in this judgment that the appellant is not intimidated by court proceedings or by the expectations of judges. His request to the trial judge to have his mother as his “McKenzie friend” suggests that the appellant had some previous experience as an unrepresented accused, although he attempted to deny this on appeal:
MR WILLIAMS: ... The respondent says I have a familiarity with the criminal justice system and how it works. I actually don’t. You can’t make inferences of my knowledge about the system just because of a criminal record. Some years ago I had some troubles, but that’s - I’m trying to put that behind me. Now I’m studying at university and at the time of those offences, there were no hearings and no representation, I was simply found guilty on those things without hearings. So - - -
PENFOLD J: And then they were appealed.
MR WILLIAMS: Sorry, no, I appealed this one thing, but anything else on my criminal record, a lot of things, I just simply didn’t attend court. I was young, I had no money, I had no representation at those times, so you can’t say that I have a familiarity with the legal system, that can’t be used as an argument.
PENFOLD J: But sorry, someone knew to appeal the 1997 convictions.
MR WILLIAMS: Which were?
PENFOLD J: Someone did it, assault police, two charges, malicious damage, offensive language.
MR WILLIAMS: I tried.
LANDER J: But there was an appeal.
REFSHAUGE J: At the Sydney District Court.
LANDER J: That’s what the criminal history says.
MR WILLIAMS: I can’t remember. It might have been a transferral of the matter to Canberra, I can’t remember. I honestly can’t remember, but I’ve never attended court for those matters.
PENFOLD J: And then in 2000, you’re telling us the court made a Mental Health Act order without you being there?
MR WILLIAMS: I don’t know, I can’t remember that.
REFSHAUGE J: And you’ve been in the Armidale District Court.
MR WILLIAMS: Yes, but in and out. I mean, I don’t - - -
REFSHAUGE J: They were pleas of guilty, were they?
MR WILLIAMS: What pleas did I enter? I don’t know.
REFSHAUGE J: Common assault
PENFOLD J: You’ve got it there in front of you, Mr Williams, have you not, at page 49. ...
MR WILLIAMS: Well, whatever the case is, your Honour, I haven’t got a familiarity with the court system. I try my best, as I had come across - because I’m involved in the Family Court and I’ve been in the Family Court for several years, in fact that’s how this incident occurred, was because my daughter had been abducted in breach - - -
REFSHAUGE J: Are you represented in the Family Court?
MR WILLIAMS: I have had representation and I have represented myself in the Family Court.
REFSHAUGE J: So you have some experience.
MR WILLIAMS: I have some experience, but I have never been in a position where a judge would refuse me the opportunity to have representation and no preparation for what is a serious matter. I mean, charges of assault and breach of an order, I don’t want to assault people and I don’t want to breach orders and I try to avoid those situations, and I certainly am prepared to say when I don’t think I’ve done something wrong, that I haven’t done something wrong and put my best foot forward. But I felt like I wasn’t given the opportunity in this instance and it wasn’t any - - -
The appellant’s attempts to put a different complexion on past events by adjusting or obfuscating the facts, or to confuse facts and arguments for his own benefit, as in relation to his legal aid applications (at [69] above) and in relation to the implications of his criminal record (at [99] above), can only be described as manipulative. I am satisfied that the trial judge, while firm and not particularly patient, did not intimidate the appellant into pleading guilty.
Given the nature and circumstances of these offences, it cannot be said that any unfairness was done to the appellant in continuing the hearing despite his lack of legal representation (especially since it is clear that he did receive informal legal advice from counsel before agreeing to plead guilty). Nor is there any basis to suspect that the appellant did not understand the nature of the charges or did not intend to admit he was guilty of them, and there is no basis for suggesting that on the facts admitted by his pleas he could not in law have been guilty of the offences charged. I have already rejected his claim of intimidation, and no claim was made of any improper inducement or fraud (Meissner, quoted at [79] above).
There is accordingly no basis that I can identify on which it could be said that there has been a miscarriage of justice in the appellant’s pleas of guilty having been made and accepted, and his appeal against conviction must be dismissed.
Appeal against sentence
As noted at [75] above, no grounds were specified for the appeal against sentence.
At the appeal hearing, members of the Court commented that the sentence seemed very lenient, having regard to the appellant’s unimpressive criminal record (which included several previous convictions for assault and malicious damage), the nature of the assault, and the fact that the protection order was obtained as a result of the assault and was breached only hours after it had been served on the appellant.
The Court pointed out to the appellant that on a sentence appeal the court could, after warning an appellant, increase the sentence appealed against, and noted the views already expressed by members of the Court that the sentence was very lenient. The appellant responded “So you think I should just think on what’s happened and walk away?”; on receiving confirmation that this was the Court’s view, he indicated that there was nothing further he wished to say.
If the appeal against sentence still stands, then it must be dismissed.
Conclusion
The appeal should be dismissed.
I certify that the preceding paragraphs numbered fifty-nine to one hundred and seven ([59]–[107]) are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Riki Sutherland
Date: 10 November 2011
Counsel for the Appellant: The appellant appeared in person
Solicitor for the Appellant:
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: The Director of Public Prosecutions
Date of hearing: 4 May 2011
Date of judgment: 10 November 2011
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