Ingle v Lusted
[2008] TASSC 54
•15 September 2008
[2008] TASSC 54
CITATION: Ingle v Lusted [2008] TASSC 54
PARTIES: INGLE, James
v
LUSTED, Gary (Sgt)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 6/2008
DELIVERED ON: 15 September 2008
DELIVERED AT: Hobart
HEARING DATE: 19 June 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Asserted "unwitting" error of magistrate.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s14(2).
Justices Act 1959 (Tas), ss107, 110(2)(a).
Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117; Chapman v Flemming [1960] Tas SR 1, referred to.
Aust Dig Magistrates [270]
REPRESENTATION:
Counsel:
Appellant: R Foon
Respondent: J Ransom
Solicitors:
Appellant: Douglas & Collins
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 54
Number of paragraphs: 23
Serial No 54/2008
File No 6/2008
JAMES INGLE v SGT GARY LUSTED
REASONS FOR JUDGMENT TENNENT J
15 September 2008
On complaint number 34639/07 dated 10 May 2007, James Ingle was charged with one count of "Fail Breath Analysis", asserted to be a breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s14(2). The particulars of the charge were as follows:
"You are charged with on the 5th April, 2007 at Deloraine in Tasmania, having been directed by a Police Officer in accordance with Subsection (4) of Section 10 of the Road Safety (Alcohol and Drugs) Act, 1970 to submit to a breath analysis, you failed without reasonable excuse to submit to a breath analysis in accordance with the directions of an approved operator."
Mr Ingle appeared before a magistrate on five occasions thereafter in relation to the matter. On all except the first, the court record shows he was represented by a lawyer. On the last appearance on 6 December 2007, a plea of guilty was recorded and Mr Ingle was convicted and fined $1,500. He was also disqualified from driving for a period of two years and six months.
On 7 January 2008, Mr Ingle sought a review of the order of the learned magistrate. No issue was taken with the late filing of that notice, and in fact the hearing of the review proceeded on the basis of an amended notice filed by Mr Ingle's solicitors on 16 June 2008. The grounds of the review were as follows:
"1The learned magistrate erred in convicting the applicant in the circumstances where the applicant's counsel entered a plea of guilty to a charge she did not have instructions to enter, such error leading to a miscarriage of justice in that:
a The plea was not entered in a consciousness of guilt and the applicant maintains his innocence; and
b That the applicant's instructions to Counsel to enter a plea of guilty to a different offence were a product of Counsel's wrong/negligent advice and inducement and were not as a result of a consciousness of guilt.
And the applicant seeks leave to change his plea to one of not guilty".
At the commencement of the hearing, the court was advised that the documents to which it should have regard were:
- the notice to review filed 16 June 2008;
- the affidavit of Mr Ingle sworn 6 May 2008;
-the affidavit of the police prosecutor in the lower court, Trudy Margaret Lusted, sworn 28 May 2008;
- the court copy of complaint number 34639/07, on the back of which is the court record;
- a copy of the learned magistrate's notes of the proceedings on 6 December 2007; and
- a copy of Mr Ingle's prior convictions before the court.
Mr Ingle gave evidence and was cross-examined. During the course of his cross-examination, two documents were tendered by the State. These were a police bail notice dated 5 April 2007 and a letter dated 15 December 2007 written by lawyer, Ms Angela Heath, to Mr Ingle. Ms Heath was the lawyer who represented Mr Ingle on 6 December 2007. Neither Ms Heath nor Constable Lusted gave oral evidence at the hearing.
Jurisdiction of the Court to entertain this review
The Justices Act 1959, s107, provides for a person aggrieved by a decision of a magistrate to seek to review that magistrate's decision. The notice to review must set out the grounds of the review and they are to allege an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law, or that the justices had no jurisdiction to make the relevant order. There is no suggestion in this matter that the learned magistrate had no jurisdiction to make the orders he did. There is also no suggestion on this review that the learned magistrate made any error of law or fact on the material put before him. The submission of Mr Ingle's counsel is that, had the learned magistrate been aware of what Mr Ingle says transpired between he and his counsel, he would not have accepted the plea of guilty entered. In doing so, the learned magistrate, it is said, made an "unwitting" error of fact and law. Mr Ingle contends that he instructed his lawyer to plead guilty, believing that he was pleading guilty to a charge of refusing a blood test, a different charge from that appearing on the complaint. He did so having accepted her advice that he would be found guilty of that amended charge and that she could get him a restricted licence. He thought that when the plea was actually entered, it was to the charge of refusing a blood test.
As support for the proposition as to the nature of the error, counsel for the applicant took the Court to a decision of the Full Court of the Supreme Court of Queensland in Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117. In that case, two young men pleaded guilty to an aggravated assault on a female. They were unrepresented, they had been influenced by the investigating police officers not to have a lawyer, not to call family and to plead guilty, and they had no idea what the elements of the offence to which they pleaded were. They had kissed a girl and thought that was what gave rise to the charge. They did not realise it was alleged they had done so without her consent. The police magistrate made no enquiry but simply accepted the plea. Evidence existed in the form of photographs which quite clearly showed no offence had been committed.
The head note in the report records the following:
"(1) That before the Full Court has jurisdiction to entertain an appeal under s209 of The Justices Acts there must be a prima facie case of error or mistake in law or fact on the part of the stipendiary magistrate, and that such error or mistake can be an unwitting error or mistake.
Bick v Morelli; ex parte Morelli [1969] Qd R 94, applied.
(2) That it was an 'error or mistake', even though unwittingly made on the part of the stipendiary magistrate, to accept a plea of guilty and to record a conviction when no offence had in fact been committed."
Hoare J said at 143:
"In Bick v Morelli, ex parte Morelli [1969] Qd R 94 it was held that the error or mistake can be an unwitting error or mistake. I respectfully agree with that approach. Surely the primary consideration is whether there has been an 'error or mistake'. If there has been an 'error or mistake', the appellate court has jurisdiction to entertain the appeal. Whether it exercises it is another matter.
It is true that in many, if not most, instances of pleas of guilty there is an absence of sufficient proof of the matters complained of, or the court is faced with the formidable practical objection that a defendant of mature age and judgment should not be permitted to reopen the matter. However to approach the primary problem of jurisdiction in this way is to confuse what is really a comparatively simple issue. I am well satisfied that the court does in fact have jurisdiction in cases where there has been a plea of guilty by mistake under such circumstances that it would constitute an injustice for the conviction (following the plea of guilty) to stand but no doubt in many instances, for various reasons, it will not exercise its powers.
As I have already indicated, it must be appreciated that for the court to have jurisdiction under s 209 of The Justices Acts, there must be an 'error or mistake' on the part of the magistrate in the sense indicated above. Any error or mistake on the part of the person convicted does not open the door to the operation of the section.
If a magistrate convicts a person accused of an offence following a plea of guilty and it appears that he was in fact not guilty then, prima facie, the act of the magistrate in recording a conviction against a man who is in fact not guilty would usually involve an 'error or mistake'. In such cases there would be an appeal open under s 209 of The Justices Act.
On the other hand there will be circumstances where there would be no injustice in allowing the conviction to stand even though it appeared that the defendant was not guilty.
Thus it seems to me that the most useful key to the problem of convictions following a plea of guilty, is to determine whether or not the person convicted has suffered an injustice as a result of the conviction. If he has suffered an injustice the court can rectify the injustice. An 'error or mistake' by the magistrate which in fact causes no injustice in the circumstances would not justify the court in setting aside the conviction."
In Chapman v Flemming [1960] Tas SR 1, Crawford J dealt with a motion to review a conviction following a plea of guilty. He found that a statement of the accused put before the learned magistrate did not amount to an unequivocal confession and that the accused did not understand the legal ingredients of the offence to which he pleaded. In those circumstances the motion was allowed.
There can perhaps be no doubt that there are circumstances where a plea entered should not have been accepted and that, in doing so, a magistrate may be seen to have erred. What then were the circumstances surrounding the plea in this case?
Circumstances surrounding the plea
Mr Ingle in his affidavit said at pars6 – 13:
"6I was charged with fail a breath analysis contrary to s14 (2) of the Road Safety (Alcohol and Drugs) Act. I engaged Ms Angela Heath of Grant Tucker Barrister and Solicitors. On my second appearance I entered a plea of not guilty through my counsel. After two further appearances it was set down for hearing on 6 December, 2007 at Westbury.
7I arrived at Court on 6 December, 2007 early so Ms Heath could take instructions for the hearing. She initially advised that we had won the case as they could not prove beyond reasonable doubt I had failed the breath test. However, approximately twenty-five minutes later she told me they were going to change the charge to refuse a blood test.
8She told me that if the charge was changed to refuse a blood test I would be found guilty and it was better for me to plead guilty to it. I told her I was not guilty and she again said that if I took the charge to a hearing I would lose. She then told me that if I pleaded guilty she would get me a restricted licence. I then agreed to enter a plea of guilty to refusing a blood test.
9When my matter was called my solicitor entered a plea of guilty on my behalf. I thought I was entering a plea of guilty to refusing a blood test. The facts for the prosecutor were read and my solicitor did a plea in mitigation for me. I was then convicted and fined $1,500.00 and ordered to pay Victims of Crime Compensation Levies of $20.00 and costs of $30.00 within six months and disqualified from driving for thirty months and it was ordered that I not be granted a restricted licence.
10My solicitor failed to advise me that prosecution were out of time to change the complaint from one of fail breath analysis to refuse a blood test. Had I been so advised I would have not agreed to plead guilty to refusing a blood test in order to get a restricted licence, and would have maintained my plea of not guilty on failing a breath test.
11My solicitor failed to advise me that because of my prior convictions I was ineligible for a restricted licence. She also failed to advise me that a plea of guilty to either failing a breath analysis or refusing a blood test would have meant I was barred from being granted a restricted licence. Had I been so advised I would have not agreed to plead guilty to refusing a blood test.
12At all times after my discussion with my solicitor I believed I was, and had entered a plea of guilty to refuse a blood test. It was not until I received the fine notice I saw that I had been convicted of failing a breath test.
13Had I been advised of either my ineligibility for a restricted licence or the fact prosecution could not file a new charge I would not have agreed to plead guilty to refuse a blood test and would have maintained my plea of not guilty to fail a breath analysis and taken the matter to hearing. I did not fail a breath analysis and I do not believe if I had registered a reading it would have been in excess of 0.05."
The court record endorsed on the back of the complaint discloses that a plea of not guilty was entered on 12 July 2007 and that the matter was listed for hearing on 6 December 2007. There was no audio recording of the proceedings before the learned magistrate on that day. The learned magistrate's notes are brief. They contain nothing to indicate there was any discussion about a possible amendment to the complaint or any actual application to do so.
Mr Ingle's evidence-in-chief in this Court was brief and extended only to correcting a matter in par7 of his affidavit. He had there said that Ms Heath had told him that "they were going to change the charge to refuse blood test." He said in evidence that what he meant was she told him they did change the charge. When cross-examined, Mr Ingle told the Court that, when he met Ms Heath at the court on 6 December 2007, she took him into a room off the court and showed him a law book. She then told him that "they" had to prove without reasonable doubt that he had failed the breath analysis, and she did not believe they could. He then went outside and she, Ms Heath, came out about 15 to 20 minutes later. She then told him that the charge had been changed from failing the breath analysis to refusing a blood test.
As I earlier indicated, neither Ms Heath nor Ms Lusted gave evidence. However, in the course of his cross-examination, Mr Ingle conceded he had received the letter written by Ms Heath to him dated 15 December 2007. It read as follows:
"We refer to the above and confirm the writer's appearance on your behalf in the Westbury Court of Petty Sessions on 6 December 2007.
As you are aware, you entered a plea of guilty to the Charge of Fail Breath Analysis, on the basis that you:
a Did not complete the Breath Analysis test and
b That you withdrew your consent for blood to be taken, resulting in it not being able to be taken.
c That you withdrew that consent after only 1 attempt by a nurse, which cannot be considered reasonable in all the circumstances.
d That there was no defence under subsection (2A) of section 14 of the Road Safety (Alcohol & Drugs Act), due to the reasons above.
In Mitigation, I drew the Magistrate's attention to the circumstances surrounding the offence and why this consent was withdrawn. I also explained your situation, both personal and the nature of your work. I drew attention to the fact that you would not be eligible for a restricted license and that you understood you would be facing a term of disqualification, which you would suffer the full deterrent effect of.
The Magistrate made the comment that he accepted all of the comments made in mitigation by me and he sentenced you as follows:
1 He convicted you of the charge
2 He fined you $1500, as well as ordering you pay costs and levies in the amount of $50, a total of $1550
3 He disqualified you from driving for 2 years and 6 months.
I understand that you were devastated by this result and further understand from our subsequent telephone conversations that you wish to lodge an appeal because you believe that in retrospect, entering a plea of guilty was not the right thing to do.
I wish you all the best in doing this and hope that you receive an outcome that you will be happy with.
I thank you for your instructions, please find enclosed a note of my professional costs."
There is no reference to any alteration to the charge against Mr Ingle. Two other matters arise in relation to this assertion by Mr Ingle that Ms Heath had told him the charge had been altered. Firstly, the complaint could not simply be amended by the prosecutor. It could only have been amended upon an application to the learned magistrate. There is no indication at all in either the court record or the notes of the learned magistrate that such an application was ever made. Secondly, even if there had been such an application, it is perhaps doubtful it would have succeeded. More than 6 months had by then elapsed since the incident and there would have been argument about the nature of the amendment.
In his affidavit, Mr Ingle said he instructed Ms Heath to plead guilty to the charge of refusing a blood test. He had no memory of a charge being read. There is no evidence as to whether it was or not. Ms Heath entered the plea on his behalf. Mr Ingle was asked if he had read the affidavit of the prosecutor, Ms Lusted. He said he had not, and was given it to read. Counsel for the State then read out the facts attached to Ms Lusted's affidavit which she said were read in court. Mr Ingle acknowledged he had read that document before, but he could not remember if the facts were read in court. He in fact disputed that they were. This was in the context that Ms Lusted's evidence that she had read the facts to the court was not challenged.
Counsel for the State questioned Mr Ingle about whether he disputed any aspect of those facts. He identified three matters that he disputed. The first was the roadside reading of .12. He said it was .11. The second was the number of breath tests administered at the police station. The facts say three but Mr Ingle said it was five. The third matter was that Mr Ingle said he offered to take a blood test after the police officers conducting the breath analysis began arguing. It was not the case that he was asked if he would submit to it. Notwithstanding these disputed facts, there is no indication in the notes of the learned magistrate, nor Ms Heath's letter, that there was any dispute as to facts raised.
Counsel for the State also cross-examined Mr Ingle about the issue of any restricted licence. Mr Ingle told the Court Ms Heath had told him he would get a restricted licence if convicted of either failing a breath analysis or refusing a blood test. His evidence suggested it was not a case of her having advised he could apply, but that he would be successful in getting one. He was, as part of this cross-examination, questioned about whether Ms Heath knew of his prior convictions. He said:
"She was aware of it, she'd already got the documents from the … ."
When pressed as to whether he had discussed these documents with her, he could not remember.
Mr Ingle recalled Ms Heath presenting a plea in mitigation on his behalf and outlining the circumstances of the offence and his personal circumstances. It was put to him Ms Heath, during that plea, referred to the fact that he would be ineligible for a restricted licence. He initially said he could not remember her saying that but later denied that she did.
Counsel for the State continued his cross-examination of Mr Ingle by questioning him about certain steps he had taken after his appearance in court on 6 December 2007. The exchange which occurred was as follows:
"And do you agree you had a telephone conversation with Miss Heath at approximately 4.30pm on the 6th of December? You rang her up? ….. Yes, I rang her up.
And you indicated that you were devastated about it, that you had called Legal Aid who'd told you the prosecution could not change the charge? (Phone ringing) ….. Could you say that again, please?
Yes, do you agree that you'd taken legal advice from the Legal Aid Commission prior to calling Miss Heath at 4.30? ….. Yes, yes I did.
And you articulated what you'd been told, that they'd told you that a charge couldn't have been changed? ….. They did tell me that.
I want to suggest she said in the course of that conversation the charge hadn't been amended or changed? Do you agree with that? ….. I don't under - could you say that again?
Well she told you when she was speaking to you at 4.30pm on the 6th of December about this matter that the charge had not been amended? ….. Hadn't been amended, why was it changed from, why did she tell it had been changed from failing a breath analysis to refusing a blood test?
No I will ask you the question again. Do you agree in the conversation at 4.30pm on the 6th of December 2007, that she told you the charge hadn't been amended, do you agree with that or not? ….. No, I am not sure how to answer this, I can't remember that.
Okay.
(Phone ringing)
HER HONOUR: Mr Ingle just turn it off will you, please.
WITNESS: I am not sure I can turn it off.
HER HONOUR: Yes, Mr Ransom?
MR RANSOM: (Resuming) Now you rang her again did you not on the 7th of December the next day? ….. Yes, I remember ringing her.
In fact it would seem that you probably tried–? ...... Yes.
Do you agree that she told you at that point, 'I say you had no defence and we discussed it'? ….. No, I can't remember that conversation.
Did you tell her this,
"Well we need to think of one and appeal."
? ….. Again I can't remember. I am sure I told her I was wanting to appeal.
Yes, okay. Did you say you need to think of a defence and appeal? ….. I can't remember that.
You recall saying that you wanted to appeal? ….. I recall saying that I wanted to appeal it because I thought, obviously that's why I am here now, I thought there was something wrong with –
Right, I understand. And you subsequently did you not spoke to a Terry McGuire also to get some legal advice? ….. Yes."
The submissions by counsel for Mr Ingle were predicated upon an acceptance by the Court of Mr Ingle's evidence as to his dealings with Ms Heath and generally. I should say at the outset that I do not accept his evidence. There are a number of reasons for that. At a general level, Mr Ingle's memory was remarkably clear when it suited him. However, on most matters where there was the possibility of an answer against his interest, his memory failed him. As to his dealings with Ms Heath, the advice said to have been given by Ms Heath was inherently implausible. While there was no evidence as to her level of experience, if Mr Ingle's evidence is accepted, she made numerous basic and significant errors in what she told him. That she gave that advice is completely contrary to the terms of the letter that Mr Ingle acknowledges Ms Heath sent to him shortly after the appearance before the learned magistrate.
Mr Ingle made statements in his evidence contrary to unchallenged evidence of other witnesses. For example, he said the facts for the prosecutor were not read to the court yet he did not challenge Ms Lusted's evidence that they were. Further in his evidence he challenged a number of factual matters in those facts. There was no evidence that, save in the material presented for this review, he at any time earlier raised those factual disputes. In all the circumstances I do not accept that Mr Ingle instructed Ms Heath to plead to a charge of refuse blood, but that he instructed her to plead to the charge on the complaint and was simply unhappy with the result.
While that disposes of the issue of whether Mr Ingle's review might succeed solely as a consequence of asserted ineptitude of his counsel on the plea, his counsel on the review pre-empted an argument from counsel for the State by reference to the Justices Act 1959, s110(2)(a). Counsel for Mr Ingle submitted that a miscarriage of justice had occurred because Mr Ingle had now lost an opportunity to raise a possible issue by way of defence to the fail breath analysis charge. He conceded that there was no guarantee the argument would succeed and that it would be heavily reliant on cross-examination of witnesses at a hearing. The basis of the argument was that, on Mr Ingle's affidavit, there was a disagreement between police officers during the breath analysis process. This might give rise to an inference that the machine was not working properly. As a consequence of the Act, s14(2), the fact that the machine was not functioning properly would afford Mr Ingle a reasonable excuse for having failed a breath analysis.
The Act, s14(2) provides as follows:
"14 (2) Any person who, having been directed under section 10(4) to submit to a breath analysis, fails or refuses, without reasonable excuse, to submit to a breath analysis in accordance with the directions of an approved operator is guilty of an offence."
Counsel for Mr Ingle submitted that by her negligent advice, Ms Heath deprived Mr Ingle of the opportunity of raising this defence. Two matters arise from this submission. Firstly, I do not accept Ms Heath gave Mr Ingle the advice he asserted. Secondly, while Mr Ingle's affidavit gives rise to an inference that the breath analysis machine was not functioning properly, the assertion by him as to what occurred is not consistent with the facts read to the court by the prosecutor which I have already indicated have never apparently been challenged, save in the context of this review. Further, I have also already found that I do not accept Mr Ingle's evidence generally.
In all the circumstances, this review must fail and the notice is dismissed.
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