Groom v Police (No 2) - [2013] SASC 50

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GROOM v POLICE (No 2)
[2013] SASC 50
Judgment of The Honourable Justice Sulan (ex tempore)
26 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
Appeal against conviction - appellant pleaded guilty to two counts of failing to comply with a bail agreement and one count of contravening a term of an intervention order - at the time of his pleas, the appellant was unrepresented and in custody - the Magistrate gave the appellant three options: be remanded in custody, remain in custody while a home detention report was prepared, or plead guilty to the charges - the Magistrate indicated that if the appellant pleaded guilty he would regard time spend in custody as a sufficient penalty - whether the appellant should be permitted to withdraw his pleas of guilty.
Held: A plea of guilty will be withdrawn if the defendant establishes that a miscarriage of justice has occurred - the circumstances of each case must be considered - the fact a trial judge has made an indication as to potential sentences upon a guilty plea will not be sufficient of itself to establish a miscarriage - the respondent rightly conceded that in the circumstances a miscarriage of justice had occurred - appeal allowed and matter remitted for trial before another Magistrate.
Magistrates Court Act 1991 (SA) s 42, referred to.
Green v Police (1999) 108 A Crim R 246; Meissner v The Queen (1995) 184 CLR 132; R v Liberti (1991) 55 A Crim R 120; v Boag (1994) 73 A Crim R 35; R v Wilkes (2001) 122 A Crim R 310; R v Wilkes (2001) 122 A Crim R 310; R v Collis (1989) 32 A Crim R 371; R v Clayton (1984) 35 SASR 233; R v Boyd [2000] NSWCCA 110; R v Pugh (2005) 158 A Crim R 302, considered.

GROOM v POLICE (No 2)
[2013] SASC 50
Magistrates Appeal: Criminal

SULAN J: The appellant, Stephen Barry Groom, was charged with two counts of failing to comply with a bail agreement. It is alleged that those breaches occurred, first, on 15 November 2012 and, secondly, between 15 and 16 November 2012. He is also charged with, on 15 November 2012, contravening a term of an intervention order.
The matter was listed before a Magistrate on 7 December 2012. At the time, the appellant was in custody. When he appeared in person, the Magistrate indicated that the appellant had three options: first, to be further remanded in custody; secondly, to remain in custody while a home detention report was prepared; or thirdly, if he could see his way clear, (and it was a matter for him) to plead guilty to the charges. The Magistrate indicated that, upon the appellant pleading guilty, he would regard the time that the appellant had spent in custody as a sufficient penalty and not impose a further penalty.
The appellant pleaded guilty to the three charges. The Magistrate indicated that, given time that the appellant had spent in custody, he made no further order. He waived the court fees and released the appellant. The appellant was required to pay levies and the prosecution fee.
Withdrawals of pleas
This Court has jurisdiction to hear an appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against conviction following a guilty plea. In Green v Police Bleby J observed:[1]
Section 42 of the Magistrates Court Act 1991 (SA), provides for an appeal by a party to a criminal action to this Court against a “judgment” given in the action. The recording of a conviction, even on a plea of guilty is, in my opinion, a judgment from which an appeal can be brought…
[1] Green v Police (1999) 108 A Crim R 246, 249.
It is possible for a defendant to withdraw his or her plea of guilty. In considering whether to permit a defendant to change his plea, the Court will approach the application with caution, bordering on circumspection.[2] The approach recognises the public interest in the finality of proceedings and the principle that an informed guilty plea is normally taken to be an admission of the necessary legal ingredients of the offence.[3]
[2] R v Liberti (1991) 55 A Crim R 120, 122.
[3] See R v Liberti (1991) 55 A Crim R 120, 122; R v Boag (1994) 73 A Crim R 35; R v Wilkes (2001) 122 A Crim R 310.
The onus is on the defendant to establish that his or her plea of guilty should be withdrawn.[4]
[4] R v Collis (1989) 43 A Crim R 371; see R v Clayton (1984) 35 SASR 232, 234.
The ultimate question as to whether a plea of guilty will be set aside is whether it can be shown that a miscarriage of justice has occurred. In Meissner v The Queen Dawson J said:[5]
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.
[5] (1995) 184 CLR 132, 157.
The joint judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen observed: [6]
…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. The principle is stated by Lawton LJ in R v Inns:
“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the court attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.”
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice…
[Citations omitted.]
[6] (1995) 184 CLR 132, 141 – 142.
In R v Boyd,[7] in open court following a luncheon adjournment, the prosecutor requested the trial Judge’s opinion as to the prospects of a jail sentence should the defendant be convicted. The Judge said that, if the defendant had prior convictions and were he to be convicted he would “certainly go to jail on a full-time basis”, but that “if there is a plea forthwith, I would consider a penalty short of a full-time custodial sentence.” The NSW Court of Criminal Appeal found that, although the Judge’s remarks were “unfortunate”, the defendant nevertheless appreciated in full that if the trial were to proceed there was a risk he would be convicted and would receive a full time custodial sentence. The defendant had received advice that a guilty plea represented an acknowledgement of the offence. In the circumstances, the plea was regarded as not being induced from undue pressure, but as a voluntary act on the part of the defendant.[8]
[7] [2000] NSWCCA 110.
[8] [2000] NSWCCA 110, [36].
R v Pugh[9] is not directly comparable with the current case. Doyle CJ, Bleby and Gray JJ each described the general principles applicable to applications to withdraw a plea of guilty. The defendant had pleaded guilty to two offences in satisfaction of an information containing additional counts. On appeal, he sought to withdraw both pleas. As to the first offence, he contended that the plea should be withdrawn because it was entered on the basis of his counsel’s incorrect advice that, following a plea of guilty, he could maintain a defence to the charge on appeal. As to the second offence, the defendant sought to withdraw his plea on the basis that his counsel had advised him that the Judge had indicated a sentencing range which would apply on a guilty plea. It was common ground on appeal that the advice had been given, but that the Judge had in fact given no indication of the sentence he would impose.
[9] (2005) 158 A Crim R 302.
Doyle CJ, Bleby and Gray JJ each observed that the relevant question on an application to withdraw a plea is whether there has been a miscarriage of justice.[10] Justice Gray added:[11]
In Meissner v The Queen the members of the High Court further considered the circumstances in which a guilty plea could be withdrawn. The Court concluded that a plea of guilty or not guilty must be made by an accused person as a matter of free choice. Where the court acts on the assumption that a plea of guilty has been freely made and that is not in fact the case, the court will be misled. Where the court has been denied knowledge of the true circumstances of the plea there is a risk of adverse interference with the proper administration of criminal justice. It was further held that where the means used to influence the plea of an accused person are improper, and result in the removal of the element of free choice, such conduct has the tendency to pervert the course of justice.
[Footnote omitted.]
[10] (2005) 158 A Crim R 302, [33] (Doyle CJ); [82] (Bleby J); [195] – [198] (Gray J).
[11] (2005) 158 A Crim R 302, [199].
Both applications to withdraw were refused. As to the second plea, Doyle CJ said:[12]
I consider that the plea of guilty was entered by Mr Pugh in the exercise of a free choice. He decided to plead guilty weighing up, in broad terms, his prospects of success and the expected sentence. His expectations as to the sentence were defeated, because of [his counsel’s] mistake. But that does not mean that the decision to plead guilty was not made in the exercise of a free choice. I acknowledge that it was not a fully informed choice, and that it was made in part on a mistaken basis, but that is something that will arise from time to time and when a decision is made to plead guilty on the basis of advice given during the course of a trial. There was no improper inducement held out to Mr Pugh. If the Judge had in fact expressed the view attributed to him, unlike the Court in Turner, I would not regard that indication as depriving Mr Pugh of a free choice. I recognise that there is a distinction between confident advice from counsel as to the sentence that a judge is likely to impose, and a statement to the accused that the judge has indicated the sentence that the judge is likely to impose. But to my mind, at the end of the day, it remains a question of assessing the circumstances of the particular case, and I am not persuaded that the wrong advice from [his counsel] deprived Mr Pugh of a free choice in the matter.
[12] (2005) 158 A Crim R 302, [69].
Similarly, Bleby J observed:[13]
In this jurisdiction, the question must turn on the particular circumstances and this Court’s assessment as to whether, in all the circumstances, the plea was entered as a result of a genuine choice on the part of the appellant. The advice given in this case about the likely sentence, even though with the apparent backing of the trial Judge, was not advice as to the strength of the prosecution case against the appellant, nor did it have any bearing on the strength of his defence… The advice was given to protect and advance the legitimate interests of the accused, having regard to the threat to those interests by continuing to trial on counts 4, 5 and 6. The appellant was quite capable of and did in fact make his own assessment of his prospects of success on those counts.
[13] (2005) 158 A Crim R 302, [120].
It follows that the circumstances of each case must be considered in determining whether a miscarriage of justice has occurred. In considering the circumstances of each case, a court will have regard to a number of considerations, including whether the plea was a genuine choice of the defendant, whether the plea is attributable to a consciousness of guilt, and whether there exists persuasive evidence of the defendant’s guilt. The fact that a trial Judge has made an indication in open court as to potential sentences upon a guilty plea will not be sufficient, of itself, to establish a miscarriage of justice.
In the present case, the respondent has conceded that the defendant has established a miscarriage of justice. Given the circumstances, that concession was rightly made. The Magistrate gave the defendant effectively two options: he could remain in custody or he could plead guilty and be released. At the time the options were given to him by the Magistrate, the defendant had been in custody on the charges for almost 3 weeks. The defendant was unrepresented. The defendant maintains his innocence to the charges. The defendant’s pleas could not be regarded as genuine choices. There is nothing before this Court which supports a conclusion that the defendant’s pleas were founded on a consciousness of guilt.
The appeal is allowed and the matter is remitted for trial before another Magistrate.