Kanakaradnam v R

[2018] NSWCCA 282

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kanakaradnam v R [2018] NSWCCA 282
Hearing dates:	16 November 2018, 19 November 2018
Date of orders:	07 December 2018
Decision date:	07 December 2018
Before:	Simpson AJA at [1] Johnson J at [3] N Adams J at [116]
Decision:	Application for an extension of time within which to seek leave to appeal refused.
Catchwords:	CRIMINAL LAW – application for extension of time to appeal against conviction – offences of aggravated indecent assault – circumstance of aggravation that complainant had a cognitive impairment – applicant pleaded guilty to offences in District Court – whether there has been a miscarriage of justice – principles to be applied on application for leave to withdraw pleas of guilty – integrity of pleas of guilty – evidence given by applicant and applicant’s former legal representatives at hearing in Court of Criminal Appeal – factual findings made – applicant’s pleas of guilty entered freely and voluntarily and with full knowledge of elements of offences – no miscarriage of justice – not in interests of justice to grant extension of time – application for extension of time refused
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Geggo v R [2013] NSWCCA 7 Kennedy v R [2017] NSWCCA 193 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khamis v R [2014] NSWCCA 152 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129
Texts Cited:	---
Category:	Principal judgment
Parties:	Rasakumar Kanakaradnam (Applicant) Regina (Respondent)
Representation:	Counsel: Mr GD Wendler (Applicant) Mr B Hatfield (Respondent)   Solicitors: Michael Vassili Barristers & Solicitors Pty Limited (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/350843
Publication restriction:	---
Decision under appeal	Court or tribunal: Penrith District Court Jurisdiction: --- Citation: --- Date of Decision: 9 June 2016 Before: Acting Judge Madgwick QC File Number(s): 2013/350843

Judgment

1. SIMPSON AJA: I have read in draft the judgment of Johnson J and also the additional observations of N Adams J. I agree with the order proposed by Johnson J, for the reasons given by him. In reaching this conclusion I have considered the evidence given by various witnesses in the proceedings in this Court. I agree with the assessment of Johnson J of the relative credibility of the witnesses. The evidence satisfies me that the applicant was competently advised and represented throughout the proceedings and that his pleas of guilty were entered out of a realistic assessment of the prosecution case, and, accordingly, were a genuine acknowledgment of guilt.

2. I also agree with the additional observations of N Adams J.

3. JOHNSON J: By application filed on 23 August 2018, the Applicant, Rasakumar Kanakaradnam, seeks an extension of time to bring an application for leave to appeal against conviction for offences of aggravated indecent assault in respect of which he was sentenced at the Penrith District Court on 9 June 2016.

The Offences and Sentences

4. On 16 September 2015, the Applicant pleaded guilty to two offences of aggravated indecent assault contrary to s.61M(1) Crimes Act 1900 for which the maximum penalty was seven years’ imprisonment with a standard non-parole period of five years.

5. The s.61M(1) offences for which the Applicant was sentenced each alleged that, on 1 November 2013 at Richmond, he assaulted “Mary” (not her real name) and committed an act of indecency upon her in circumstances of aggravation, namely that “Mary” had a cognitive impairment. The real name of the victim is not used in this judgment in recognition of her entitlement not to be identified: s.578A Crimes Act 1900.

6. The Applicant requested the sentencing Court to take into account, by way of a Form 1, when passing sentence for the second s.61M(1) offence, an offence of stealing from the person under s.94 Crimes Act 1900 which (if prosecuted separately) is punishable by imprisonment for 14 years.

7. On 9 June 2016, Acting Judge Madgwick QC imposed the following sentences:

1. on Count 1, imprisonment for six months commencing on 5 April 2016;

2. on Count 2, imprisonment for three years commencing on 5 April 2016 with a non-parole period of 18 months commencing on 5 April 2016 and expiring on 4 October 2017, with a balance of term of 18 months commencing on 5 October 2017 and expiring on 4 April 2019.

The Sole Ground of Appeal

8. By Notice filed on 23 August 2018, the Applicant relies upon a single ground of appeal which contends that, in all the circumstances, there has been occasioned to the Applicant a miscarriage of justice, in that he did not appreciate or understand the nature of the offences charged against him, he did not voluntarily admit or plead guilty to the offences charged and was not in fact guilty of the offences to which he pleaded guilty on 16 September 2015.

Application for Extension of Time

9. In support of the application for an extension of time, the Applicant relies upon the affidavit of Nicholas Blaker sworn 22 August 2018. This affidavit recounts the protracted history of the litigation in this Court since the Applicant filed a Notice of Intention to Appeal on 10 June 2016.

10. By the time the present application was filed on 23 August 2018, the Applicant’s non-parole period had long expired and he was being held in immigration detention.

11. The Crown opposes a grant of an extension of time to appeal, contending that the application is devoid of merit in any event.

12. Section 5(1) Criminal Appeal Act 1912 permits a convicted person to appeal against conviction. Section 10(1)(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time.

13. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614 [32], French CJ, Hayne, Bell and Keane JJ referred to provisions allowing extension of time to appeal against conviction and sentence:

“These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding.”

14. Earlier in Kentwell v The Queen, their Honours said at 613 [29] (footnotes omitted):

“The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides. For example, witnesses may no longer be available and exhibits may have been lost or destroyed. Re-opening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence again.”

15. Relevant to the determination of the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at 614 [33].

16. The interests of justice test to be applied on the present application for extension of time focuses attention upon the merit of the application itself, against the background of pleas of guilty entered by the Applicant more than three years ago where the victim of the offence was a young woman with a cognitive impairment.

Principles To Be Applied On Application For Leave To Appeal Against Conviction Following A Plea Of Guilty

17. In the case of an appeal against conviction following a plea of guilty, the ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at 188 [20].

18. In R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170, the Court said at 312-313 [32]-[35]:

“32    This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.

33    The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].

34    The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].

35    A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds 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, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46.”

19. The decision of Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 has been applied regularly by this Court in decisions where application is made to go behind a plea of guilty entered at first instance: R v Thalari; Khamis v R [2014] NSWCCA 152 at [57]-[59]; Kennedy v R [2017] NSWCCA 193 at [45]. Howie J said in Wong v Director of Public Prosecutions (NSW) at 45-46 [33]-[39]:

“33    A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea ‘is not in truth guilty of the offence’: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

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.

34    There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell, above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty ‘within one verbal formula’.

35    If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff’s antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.

36    If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34].

37    But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.

38    An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison (2003) 138 A Crim R 378 at 384 under the heading ‘I am not guilty but I’ll plead guilty’. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.

39    I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, he must establish ‘a good and substantial reason for the Court taking that course’: Sewell at [39]. It goes without saying that the fact that the defendant asserts he is not in truth guilty of the offence is not itself a ‘good and substantial reason’ for allowing the application.”

Facts of Offences for which the Applicant was Sentenced

20. The facts upon which the Applicant was sentenced were agreed and reveal the following.

The Complainant’s Cognitive Impairment

21. The complainant, “Mary”, was born in November 1994 with Down Syndrome. According to a report of Dr Susan Pulman, psychologist, dated 20 January 2015 tendered at the sentencing hearing, individuals with Down Syndrome have some characteristic physical features and some health and developmental challenges as well as some level of intellectual disability. As a result of this condition, “Mary” required special training in living skills and daily supervision of her activities. She had a number of distinctive features in her appearance as a result of the condition. Dr Pulman placed “Mary” in the mild-to-moderate range of intellectual disability.

22. Dr Pulman expressed the opinion that “Mary” satisfied the criteria for a “cognitive impairment” under s.61H(1A) Crimes Act 1900 which states:

“(1A)    For the purposes of this Division, a person has a cognitive impairment if the person has:

(a)    an intellectual disability, or

(b)    a developmental disorder (including an autistic spectrum disorder), or

(c)    a neurological disorder, or

(d)    dementia, or

(e)    a severe mental illness, or

(f)    a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.”

23. Because of “Mary’s” cognitive impairment, the Applicant was charged with, and pleaded guilty to, two counts of aggravated indecent assault under s.61M(1) Crimes Act 1900 with the circumstances of aggravation being that the alleged victim had a cognitive impairment: s.61M(3)(e).

24. To the extent that it may have been relevant, the consent of a person who has a cognitive impairment is not a defence to a charge for an offence under s.61M(1) if (relevantly) the accused person engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment: s.66F(6)(b) Crimes Act 1900. By his pleas of guilty, the Applicant accepted that this statutory defence was not available to him.

25. As at November 2013, “Mary” (then 19 years old) lived with her family in the Richmond area. After leaving school, she obtained employment through an agency which catered to clients with intellectual disabilities and this agency supervised her employment, including her travel to and from the workplace. “Mary” obtained work at a store in western Sydney. “Mary’s” mother would take her to the railway station and observe her purchase a ticket and then board the train.

The Offences on 1 November 2013

26. On the morning of 1 November 2013, “Mary” boarded a train at Richmond and travelled towards Blacktown. At about 9.30 am, the Applicant (then aged 34 years) boarded the same train at Mulgrave. He entered a carriage occupied by “Mary” and sat next to her. At that time, the Applicant and “Mary” were complete strangers.

27. The Applicant held hands with “Mary” and put his other arm around her neck and shoulder area. He kissed her on the lips. “Mary” stated that the Applicant’s beard felt itchy against her skin. The kissing continued for some time.

28. The Applicant then unbuttoned “Mary’s” top and touched her breasts on the outside of her shirt (the first s.61M(1) offence). “Mary” told the Applicant not to do this, but he persisted.

26. The Applicant then undid “Mary’s” pants. He put his hands inside her clothes and underwear and rubbed the outside of her genitalia. The Applicant rubbed hard against “Mary’s” vagina (the second s.61M(1) offence). Whilst doing this, he continued to kiss her on the mouth forcing his tongue into her mouth.

27. I interrupt the narrative of the offences to observe that the Applicant was originally charged with an additional offence of having sexual intercourse with “Mary” without her consent in circumstances of aggravation based upon her cognitive impairment, an offence contrary to s.61J(1) Crimes Act 1900. Following plea negotiations, the Crown did not proceed with this charge which was based upon an allegation that the Applicant had inserted his finger into “Mary’s” vagina. This allegation was not included in the Agreed Facts on sentence as the prosecution for the s.61J(1) offence did not proceed.

28. Returning to the narrative of the offences, “Mary” became upset and started to cry. She stood up and moved to another area of the carriage as she had been taught to do in bad situations. The Applicant followed her to the next location and placed his arm around her neck and shoulders again and began to kiss her, forcing his tongue into her mouth.

29. The Applicant then took “Mary’s” handbag and removed her mobile phone. Whilst in possession of the phone, the Applicant began to look through it for a short period of time before handing it back. In this way, the Applicant obtained “Mary’s” mobile telephone number.

30. Whilst in possession of “Mary’s” bag, the Applicant took approximately $2.50 in change before handing the handbag back to her (the s.94 offence taken into account on a Form 1). The Applicant remained on the train when “Mary” alighted at her stop and went to her work at the store.

31. When she arrived at work, other staff noticed that “Mary” had a red stubble rash on her face. “Mary” asked a fellow employee to come to the toilets with her where she told the work colleague that she had a boyfriend and that she had had her first kiss. She said she had met him on the train and the management of the store were alerted. A supervisor attended and “Mary” told the supervisor and her work colleague that a male had sat next to her and touched her breasts and crotch area and that she did not like him touching her there and had moved away, but he had followed her. “Mary” said that the Applicant had wanted to meet her in the afternoon at Blacktown railway station.

32. The supervisor contacted “Mary’s” mother and arranged to take “Mary” home. During the course of the journey, “Mary’s” mobile phone began to receive calls from an unknown mobile phone number which belonged to the Applicant. “Mary” did not answer these calls.

33. When “Mary” returned home to her mother, the Applicant called “Mary” again. “Mary’s” mother answered and the Applicant arranged to come to Richmond railway station. “Mary’s” mother and the work supervisor waited near Richmond railway station with “Mary”, and at about 3.10 pm, “Mary” observed the Applicant leave the train. The work supervisor telephoned the Applicant’s number and observed him answer the call. In order to identify the Applicant, the work supervisor met the Applicant and they were recorded on CCTV walking around McDonalds at Richmond. “Mary’s” mother took photographs of the Applicant with the work supervisor at that time.

34. The matter was reported to police and “Mary” attended Windsor Police Station and then Penrith JIRT where she was interviewed.

35. After 1 November 2013, the Applicant continued to make attempts to contact “Mary” on her mobile phone.

Arrest of the Applicant on 20 November 2013

39. On the morning of 20 November 2013, the Applicant caught the train to Richmond and, upon arrival at the railway station, he again attempted to make contact with “Mary’s” mobile phone which was unanswered. Police attended the area and arrested the Applicant who was in possession of his mobile phone.

40. The Applicant was interviewed with the assistance of an interpreter. He admitted being on the train on 1 November 2013 and going to McDonalds at Richmond that afternoon. However, the Applicant claimed not to have noticed anyone on the train that morning as he was on his phone and “dozing”. He denied touching “Mary” in any way.

41. A sample of the Applicant’s DNA was obtained. An analysis was conducted of “Mary’s” clothing by a biologist at FASS and some male DNA was found inside her bra. This DNA was compared with that of the Applicant. The DNA found inside “Mary’s” bra was found to have the same Y-filer profile as that of the Applicant. The DNA was expected to match all males in the Applicant’s family line and was expected to occur in approximately 1:750 unrelated males in the general population. Because of the amount of female DNA and the complexity of the mixture, no further results could be obtained.

42. As a result of the offences, “Mary” stopped working at the store and she suffered nightmares and remained too scared to utilise public transport alone.

History of Proceedings in the District Court

43. Before turning to the evidence adduced at the hearing in this Court, it is appropriate to set out a brief chronology of the Applicant’s proceedings before the District Court.

44. The Applicant was arrested and charged on 20 November 2013 arising from these events.

45. Following committal for trial from the Local Court, the Applicant was arraigned on 6 February 2015 in the Penrith District Court upon an indictment containing four counts - the s.61J(1) offence, the two s.61M(1) offences and the s.94 offence. Pleas of not guilty were entered on each count.

46. As a result of negotiations undertaken by the Applicant’s legal representatives, he was rearraigned in the Penrith District Court on 16 September 2015 on which occasion the Crown accepted pleas of guilty to the two s.61M(1) offences with the s.94 offence to be taken into account on a Form 1 and with the Crown not proceeding with the s.61J(1) offence.

47. Following other appearances before the District Court on later days, when the Court was informed that the Applicant had been considering an application to reverse his pleas, the Court was informed that the Applicant confirmed his pleas of guilty and proceedings were adjourned again for a psychiatric report to be obtained. A report of Dr Richard Furst, psychiatrist, dated 23 April 2016 was obtained by Legal Aid NSW on behalf of the Applicant.

48. In due course, the Applicant appeared before Acting Judge Madgwick QC at the Penrith District Court on 9 June 2016 with the sentencing hearing proceeding with experienced counsel appearing for the Applicant. His Honour proceeded to sentence the Applicant in ex tempore sentencing remarks delivered at the end of the sentencing hearing.

Evidence Adduced at the Hearing Before this Court

49. The hearing of the application proceeded before this Court on 16 and 19 November 2018.

50. The Applicant relied upon affidavits sworn by him on 20 June 2018 and 16 July 2018. In addition, the Applicant relied upon the affidavit of his solicitor, Malik Hameed, affirmed 11 April 2018.

51. The Crown read a number of affidavits at the hearing:

1. affidavit of Rasan Selliah, solicitor, affirmed 16 October 2018;

2. affidavit of Paul Bodisco, barrister, sworn 7 November 2018;

3. affidavit of Bruce Dallas, solicitor, sworn 5 November 2018;

4. affidavit of Derrick Humphries, solicitor, sworn 1 November 2018;

5. affidavit of James Francis Viney, barrister, sworn 25 October 2018;

6. affidavit of Nicholas Rasanayajam, interpreter, sworn 11 November 2018; and

7. affidavit of Edilbert Naveenan Rajadurai, interpreter, sworn 14 November 2018.

52. The Applicant was cross-examined at the hearing in this Court as was Mr Selliah, Mr Bodisco, Mr Dallas, Mr Humphries and Mr Viney. Mr Rasanayajam and Mr Rajadurai were not required for cross-examination.

53. What follows includes my findings of fact made for the purpose of this application.

54. The evidence includes, to a very large extent, contemporaneous documentation, including written instructions signed by the Applicant at various times for the purpose of the proceedings before the District Court. These contemporaneous signed instructions which were, in each case, taken through a Tamil interpreter, play an important part in the resolution of disputed questions of fact on this application.

55. In addition to the documentary evidence, including the affidavits made by the various witnesses, the Court had an opportunity to observe the Applicant, Mr Selliah, Mr Bodisco, Mr Dallas, Mr Humphries and Mr Viney as each of them gave evidence. The Applicant gave evidence through a Tamil interpreter. Courts have recognised that, where a witness gives evidence through an interpreter, there may be a limited ability of a tribunal of fact to assess demeanour as an aid to fact finding: Geggo v R [2013] NSWCCA 7 at [145]. I have taken this aspect into account.

56. Insofar as there are difficulties with the credibility of aspects of the Applicant’s account, these problems emerge as much from the contrast between his evidence in this Court and the signed instructions and other contemporaneous evidence surrounding events in 2015 and 2016. I formed the view that the evidence of the Applicant should not be accepted on important matters unless corroborated by independent evidence. As will be seen, the independent evidence largely undermined, rather than corroborated, the Applicant’s account.

57. I found each of the other witnesses who gave evidence to be frank and direct witnesses doing their best to give an accurate account of events largely assisted by the substantial contemporaneous documentation relating to the Applicant’s case.

58. As mentioned earlier, the Applicant was arrested and charged with these offences on 20 November 2013. It appears from the evidence that the Applicant’s proceedings moved through the Local Court and into the District Court when he was being represented by Michael Vassili Barristers & Solicitors Pty Limited. According to the evidence, by late August 2015, the Applicant could not afford to pay the fees sought by that firm.

Events in August-September 2015

59. In August 2015, the Applicant contacted Mr Selliah, a solicitor who was born in Sri Lanka and who was fluent in both English and Tamil. Mr Selliah’s practice was primarily in the area of immigration law, although he had some limited criminal law experience.

60. At about this time, Mr Bodisco was contacted by solicitors from the Toongabbie Legal Centre and asked to consider the Applicant’s matter. From time to time, Mr Bodisco assisted persons on a pro bono basis and he agreed to look at the Applicant’s matter on this basis. Mr Bodisco had considerable experience in criminal law matters - some of which he had worked with Mr Selliah as his instructing solicitor. The evidence demonstrated that Mr Selliah obtained the Crown brief in the Applicant’s case which was provided to Mr Bodisco. It was the evidence of Mr Bodisco (which I accept) that he read the brief of evidence and he formed the view that the Crown case against the Applicant was a strong one.

61. On 2 September 2015, a conference proceeded in Mr Bodisco’s Chambers between the Applicant, Mr Selliah and Mr Bodisco. According to Mr Selliah’s file note for that day, the conference lasted about three hours with Mr Selliah acting as interpreter as well for the Applicant in the Tamil language. Mr Bodisco said the conference took about three hours or more (T36, 16 November 2018). The Applicant said that this conference took about one-and-a-half or two hours (T20). I accept the evidence of Mr Selliah and Mr Bodisco that this was an extended conference in the order of three hours.

62. It was the evidence of Mr Bodisco and Mr Selliah (which I accept) that the Applicant was told of the nature of the charges brought against him and the elements of the offences as well as the evidence upon which the Crown was to rely. Mr Bodisco explained the possible outcome of a defended hearing and the consequences of it, together with the possibility of negotiating with the Crown to proceed on lesser charges and matters which could be advanced on the Applicant’s behalf on a plea.

63. According to the evidence of Mr Selliah and Mr Bodisco (which I again accept), the Applicant expressed his willingness to plead guilty and requested his counsel and solicitor to negotiate with the Crown upon the basis that he plead guilty to the lesser charges.

64. The Applicant’s account of the conference on 2 September 2015 asserted that he had been pressured into pleading guilty to some of the charges and was told that if he went to trial on the then current counts, he would be sentenced to 30 years’ imprisonment (T10-11). The Applicant asserted that Mr Bodisco and Mr Selliah did not explain any of the charges to him (T10) and that he was told that if he did not give signed instruction to plead guilty “I will be inside for 30 years” (T13). The Applicant’s account of this conference was denied by Mr Selliah and Mr Bodisco.

65. I do not accept the Applicant’s account of this conference. His account is quite inconsistent with contemporaneous documents and written instructions and has a significant air of implausibility about it. The duration of the conference alone supports the conclusion that there was a substantial discussion of matters including the nature of the charges and the evidence which supported them.

66. I accept that there was discussion concerning the prospect of going to prison with the Applicant being informed of the maximum penalty for the various charges. However, I do not accept the Applicant’s account that there was some assertion that he would be sent to prison for 30 years. My impression of Mr Bodisco and Mr Selliah is that they were careful and conscientious and were sensitive to the Applicant’s difficult background in Sri Lanka and his language difficulties. The advice given to the Applicant at this conference was understandable given the strength of the Crown case against him. I am satisfied that the Applicant understood the nature of the charges brought against him and that he gave instructions at this conference to explore a plea arrangement where he pleaded guilty to the s.61M(1) charges and the s.61J(1) charge was withdrawn.

67. A further matter should be noted at this point. It was the Crown’s intention to rely upon the Applicant’s conduct on 28 August 2013 which gave rise to a plea of guilty by him to common assault, for which he was placed on a six-month good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999 at Blacktown Local Court on 19 November 2013. On the morning of 28 August 2013, a female passenger was waiting at Blacktown railway station for a train when the Applicant (being a complete stranger) approached her and initiated a conversation with her. In the course of the conversation, the Applicant raised his hand and placed his fingers onto the bottom lip of the woman’s face before moving his fingers, stroking her lip piercing. The young woman stepped backwards and the Applicant continued to touch her around the lower lip.

68. A complaint was made to a security guard who escorted the young woman to an area where police were called. She provided a description of the Applicant and police observed him on the platform. The Applicant was identified by the young woman and police placed him under arrest. He was taken to Blacktown Police Station and a Tamil interpreter attended. The Applicant told police that he did touch the young woman’s lip piercing and said he had no bad intentions, but if what he did was wrong, then he was liable for his actions.

69. Although the Crown’s tendency application did not proceed to a contested hearing, the Applicant’s conduct on this occasion (some nine weeks prior to the events of 1 November 2013) did not assist him when it came to an assessment of the strength of the Crown case against him for the present matters.

70. As the Applicant’s legal representatives made clear, the Crown case was a strong one including direct evidence from “Mary”, her early complaint and distress expressed to her work colleagues, the fact that the Applicant had obtained her telephone number and was ringing her soon after the events on the train, and the location of what was said to be the Applicant’s DNA inside her bra.

71. Added to this was the Applicant’s initial complete denial to police that he had any contact at all with another passenger on the train. Although the Applicant’s account changed at a later time when there was a claim of consensual activity, the totality of the evidence was such that this was a strong Crown case of unwanted sexual attention being directed by the Applicant to a complete stranger on a train in the form of a young woman who suffered from, according to the evidence, an observable disability and cognitive impairment.

72. The legal advice directed to the Applicant as to the prospects of conviction, and the advantages of negotiation with the Crown to reduce the charges, was entirely understandable in the circumstances. Although the issue here relates to the integrity of the pleas of guilty (and not whether the Applicant was in fact guilty), this short description of the Crown case serves to explain the advice given to the Applicant and his acceptance of that advice by the giving of instructions to negotiate a plea agreement.

73. On 11 September 2015, the Applicant appeared before his Honour Judge Hanley SC at the Penrith District Court. Mr Bodisco appeared for the Applicant and the Court was informed that negotiations were underway with the Crown. As a result of a conference at Court between Mr Bodisco and the Applicant with the assistance of a Tamil interpreter, the Applicant provided signed instructions to Mr Bodisco to the following effect (Exhibit 1):

“I hereby instruct my lawyers to enter a guilty plea for the two charges pursuant to section 61M(1) of the Crimes Act - aggravated indecent assault - and a further count of steal from the person pursuant to section 94 of the Crimes Act.

I do so voluntarily after having had the elements of the charge explained to me and the consequences of a guilty plea.”

74. It is apparent from the transcript of 11 September 2015 that the Crown had accepted provisionally the defence offer to plead guilty to these matters, with an adjournment being required for the Crown to consult with “Mary’s” mother for the purpose of s.35A Crimes (Sentencing Procedure) Act 1999. The proceedings were adjourned to 16 September 2015.

75. On 16 September 2015, Mr Selliah appeared for and with the Applicant before his Honour Judge Hanley SC. Before attending Court that day, Mr Selliah had obtained a clear understanding from Mr Bodisco as to what was to take place. It is apparent that the Crown had agreed to accept the Applicant’s offer to plead guilty to the two s.61M(1) charges, with the s.94 offence to be placed on a Form 1 and the s.61J(1) charge to be withdrawn. The matter proceeded with the Applicant entering a plea of guilty to the first s.61M(1) offence, when the Crown noted that there was no interpreter at Court. Mr Selliah explained that he could speak Tamil and it was agreed that the matter could proceed without another interpreter being present. The Applicant proceeded with a plea of not guilty to the s.61J(1) charge and a plea of guilty to the second s.61M(1) charge. The Crown indicated that those pleas were accepted in satisfaction of the indictment, with the s.94 matter to be placed on a Form 1. Thereafter, the matter was adjourned to 7 December 2015.

76. Mr Wendler, counsel for the Applicant, submitted in this Court that aspects of the proceedings on 16 September 2015 assisted the present application. He submitted that it was irregular and of concern that the plea was taken from the Applicant on Count 1 without an interpreter being present and with Mr Selliah acting as interpreter, and with Mr Selliah continuing to perform this role thereafter when pleas were taken to the remaining counts.

74. I do not think the Applicant is assisted by these aspects of events on 16 September 2015. By that time, the Applicant had given clear instructions to Mr Bodisco and Mr Selliah to enter pleas of guilty to the two s.61M(1) matters and that is what occurred on that day. Likewise, the Applicant entered a plea of not guilty to the s.61J(1) charge and the Crown did not proceed with that count, consistent with the plea agreement which had been reached.

75. I am well satisfied that the Applicant understood fully what was happening that day and that the pleas were entered against the background of his earlier conferences on 2 and 11 September 2015 with his legal representatives, and the signed instructions which he had given to Mr Bodisco through an interpreter on 11 September 2015. To the extent that the Applicant’s account differs from that of Mr Bodisco and Mr Selliah concerning these events, I reject the Applicant’s account.

76. I should observe, as well, that Mr Bodisco acted for the Applicant on a pro bono basis and that Mr Selliah was apparently paid $1,000.00 only. Mr Bodisco applied himself with diligence to the giving of informed advice to the Applicant as did Mr Selliah, who maintained an interest in the Applicant’s case as he was a fellow member of the Sri Lankan community. No legitimate criticism can be directed to the steps taken by Mr Bodisco and Mr Selliah on behalf of the Applicant.

Events in November-December 2015

80. On 11 November 2015, the Applicant made contact with Mr Bruce Dallas, solicitor with Legal Aid NSW. A conference took place on 11 November 2015 with Mr Dallas using a telephone interpreter. Mr Dallas made a contemporaneous record of that conference. It appears from the conference note that the Applicant expressed concern regarding his pleas of guilty and his belief that the s.61J(1) charge had not, in fact, been withdrawn. Mr Dallas checked with the Crown and confirmed that the s.61J(1) charge had in fact been withdrawn.

81. On 7 December 2015, the matter again came before his Honour Judge Hanley SC at the Penrith District Court. Mr Dallas appeared for the Applicant and informed the Court that the Applicant was giving consideration to making an application for leave to withdraw his pleas of guilty. The matter was left in the list for a period and Mr Rajadurai, the Tamil interpreter, attended Court. A conference proceeded between Mr Dallas and the Applicant using the interpreter which culminated in the Applicant giving signed instructions to the following effect (Exhibit 2):

“I instruct that I will withdraw my application to change my plea and ask that my matter proceed to sentence.”

82. In light of these written instructions, Mr Dallas informed the Court that there would not be an application for leave to withdraw the pleas of guilty. An adjournment was sought to obtain material for the purpose of the sentencing hearing with the proceedings being stood over to 22 March 2016.

83. I accept the evidence of Mr Dallas that he explained to the Applicant the alternative courses which were open to him given his raising of a question about his pleas of guilty. Mr Dallas impressed as a careful solicitor employed by Legal Aid NSW, who performed his professional duties with respect to the Applicant, with diligence and with appropriate regard to ensuring that his client understood the position and gave signed instructions upon which Mr Dallas could then rely. That is what occurred in this case. To the extent that there is any difference between the accounts of Mr Dallas and the Applicant concerning relevant events, I accept the evidence of Mr Dallas without reservation.

Events in February-May 2016

84. In February 2016, Mr Humphries took over carriage of the Applicant’s matter following Mr Dallas’ transfer to a different part of Legal Aid NSW. By that time, arrangements had been made for Dr Furst to interview the Applicant, and he did so on 21 March 2016 with the assistance of a Tamil interpreter.

85. On 9 March 2016, Mr Humphries had a telephone conference with the Applicant using a Tamil interpreter. As confirmed in Mr Humphries’ file note of 9 March 2016, the Applicant confirmed he still wished to plead guilty. Mr Humphries’ file note stated “He [the Applicant] asked if get gaol. I advise likely extremely serious charge”, with this being understandable and realistic advice in the circumstances of the case.

86. Mr Humphries briefed Mr James Viney, an experienced criminal barrister to appear for the Applicant at the sentencing hearing. On 31 May 2016, a conference proceeded in Mr Viney’s Chambers at Parramatta which was attended by the Applicant, Mr Viney, Mr Humphries and a Tamil interpreter. Mr Humphries’ account of that conference is supported by a contemporaneous file note. During the conference, the Applicant was taken through the Agreed Facts for the offences and the report of Dr Furst dated 23 April 2016, and information concerning the Applicant’s background was noted. Mr Wendler relied upon the following aspect of the file note of the conference on 31 May 2016 (page 6):

“[Mr Viney]: Does he have a recollection of what happened in train with young girl?

[The Applicant]: To be honest I can’t recollect. But because of their forcing I accepted [THE?] guilty.”

87. A little later, according to Mr Humphries’ conference note, the following was said (pages 6-7):

“[Mr Viney]: Why can’t he recall what happened on the train?

[The Applicant]: As you said. I didn’t do big harm. I didn’t force her.

[Mr Viney]: We working on basis plead guilty just trying to tidy up whether he got no recollection what happened.

[The Applicant]: Train is public transport. I didn’t remove buttons, remove the pants. I didn’t do it.

[Mr Viney]: He has pleaded guilty, accepts he’s done.

[The Applicant]: Yes I pled I touched the breast and took the money. The Legal Aid solicitor advised me to accept it.”

88. A little later, the conference notes state (page 7):

“[Mr Viney]: He did accept 2 x indecent assault because potential to run more serious charge.

[The Applicant]: Tamil and Legal Aid said if you accept that the police will withdraw it.

[Mr Viney]: And they did. More serious charge withdrawn on basis on pleading guilty to other.

[The Applicant]: Oh. Ok. [smile].”

89. The evidence of Mr Humphries and Mr Viney, supported by the contemporaneous conference notes, reveals a thorough discussion with the Applicant undertaken through a Tamil interpreter concerning the history of his pleas, the facts upon which he was to be sentenced, the contents of Dr Furst’s report and other matters relevant to sentence. Although a part of these conference notes appears to suggest that there was some “forcing” concerning pleas, the evidence does not demonstrate any element of threat or pressure was applied to the Applicant concerning his pleas of guilty. It was the evidence of Mr Humphries that, to the extent that aspects of the conference may have raised an issue about the integrity of the pleas, he was no longer concerned in that respect by the end of the conference (T52).

90. It is not to the point that the Applicant may have felt some situational pressure because of his pleas of guilty, entered in the context of the significant advantage whereby the Crown did not proceed with the major charge. I am well satisfied that the Applicant had explained to him by the various legal representatives who had advised him by then, most recently Mr Humphries and Mr Viney, the effect of his pleas of guilty including the advantages to him in the context of the case which (according to the conference notes), the Applicant well understood and greeted with a smile. Once again, to the extent that there is any material difference between the Applicant’s account of this conference and that of Mr Humphries and Mr Viney, I accept without reservation the evidence of Mr Humphries and Mr Viney.

The Sentencing Hearing on 9 June 2016

91. On 9 June 2016, the sentencing hearing was scheduled to proceed at the Penrith District Court. Prior to the commencement of Court that day, Mr Humphries organised a Tamil telephone interpreter whilst he was at the Courthouse. Mr Humphries booked the interpreter in order to obtain signed instructions from the Applicant that he confirmed his previously entered pleas and that those instructions were fully informed.

92. The Applicant confirmed that he signed the instructions on 9 June 2016 after they had been interpreted to him by the telephone interpreter, Elanko Nathan. The instructions signed by the Applicant stated as follows (Exhibit 3):

“I, Rasakumar Kanakaradnam confirm my previously entered pleas of guilty to 2 x counts of aggravated indecent assault under s61M(l) of the Crimes Act and acknowledge my guilt in relation to 1 count of steal from person under s94 Crimes Act.

I acknowledge the maximum penalty for an offence under s61M(l) is 7 years gaol and that there is a standard non-parole period applicable of 5 years. I understand that the standard non-parole period applies to an offence of the mid-range objective seriousness for offences of its type.

I have had it explained to me that the steal from person charge has been attached to a Form 1 document and will be taken into account when the judge sentences me for the s61M(l) charges.

I have had the facts read to me with the assistance of a Tamil speaking interpreter and I accept the agreed facts. I understand that these are the facts which the judge will sentence me upon.

I am aware that by pleading guilty I will be entitled to receive a discount on my sentence in the range of 10-25% compared to the sentence I would have otherwise received if I had pled not guilty and lost a trial run on the same facts.

I acknowledge that even taking my pleas of guilty into account that I may receive a full time gaol sentence and I have received this advice from my solicitor.

I enter my plea of my own free will, noting that the charges to which I have pled guilty are the result of charge negotiations previously undertaken on my behalf which resulted in the Crown withdrawing a charge of sexual intercourse without consent on the basis of my pleas of guilty to 2 x 61M(1) offences and acknowledging my guilty in relation to lxs94 offence.

I confirm I have had an opportunity to confer with my legal representative and I provide these instructions of my own free will.”

93. The sentencing hearing commenced before Acting Judge Madgwick QC without a Tamil interpreter being present. It is clear from the evidence that Mr Humphries and Mr Viney had fully prepared the matter so that they had instructions from the Applicant on the facts of the offences as well as Dr Furst’s report and the other material to be tendered on sentence.

94. After the Tamil interpreter attended, the Applicant gave Mr Humphries signed instructions to the following effect (Annexure D, Affidavit JF Viney, 25 October 2018):

“I Rasakumar Kanakaradnam instruct my solicitor that I do not wish to give evidence at sentence.

I direct my solicitor to rely on the material contained in the report of Dr Furst, the Pre Sentence Report, STARTS and Toowong Private hospital.

I have discussed giving evidence with my legal representatives and I accept their advise [sic] in relation to not giving evidence.

I do not wish to give evidence or be cross examined by the Crown.”

95. Mr Viney acknowledged that he had proceeded to make submissions on sentence on 9 June 2016 without a Tamil interpreter being present. He explained his reasons for doing so, including a number of comments made by the sentencing Judge during the course of the hearing with respect to sentencing options. In my view, no legitimate criticism can be made of Mr Viney for proceeding to make submissions in the absence of an interpreter. Mr Humphries and Mr Viney were fully instructed with respect to the matter and no further instructions were required from the Applicant on any aspect. Although it would have been preferable that a Tamil interpreter was present to assist the Applicant to follow the proceedings, this was not an essential requirement and certainly did not impact upon the integrity of the Applicant’s pleas of guilty.

96. The affidavit of Mr Rajadurai, the interpreter who attended Court later in the proceedings on 9 June 2016, states that after sentence had been passed, the Applicant told him words to the effect “Please get me out of here! I did not do anything! Get me out of here! I did not do anything!”. To the extent that the Applicant appears to assert in his affidavit that he was saying words to this effect as sentence was being passed, this is not supported by the affidavit of Mr Rajadurai who was not required for cross-examination.

97. With respect to events on 9 June 2016, the Applicant has not demonstrated any feature which assists him in his challenge to the integrity to his pleas of guilty. The Applicant, once again and with the assistance of a Tamil interpreter, provided written instructions to Mr Humphries on the morning on 9 June 2016 which set out comprehensively his instructions to his lawyers and his understanding of what was to occur that day. During the course of the day and after arrival of the Tamil interpreter, the Applicant provided further instructions to the effect that he did not wish to give evidence at the sentencing hearing.

98. The Applicant was well aware of the material to be placed before the sentencing Court and of the arguments which were to be advanced on his behalf. The Applicant’s disappointment that sentences of imprisonment were in fact imposed serves to explain his comment to the interpreter at the conclusion of the proceedings, but this does not operate to assist him in his challenge to the integrity of his pleas.

Summary of Findings of Fact

99. I have made a number of findings along the way when referring to the evidence.

100. Having regard to the totality of the evidence, including the substantial volume of documentary evidence and the oral evidence of the witnesses who were called and cross-examined, I express my findings for the purpose of the application in the following way.

101. It may be accepted that the Applicant entered pleas of not guilty to all four counts on the indictment when arraigned at the Penrith District Court on 6 February 2015.

102. By August 2015, the Applicant was seeking alternative legal representation because of his difficulties in meeting foreshadowed fees for the purpose of his trial. Through contacts in the Sri Lankan community, the Applicant was put in touch with Mr Bodisco and Mr Selliah. The Crown brief of evidence was obtained and considered carefully by Mr Bodisco who gave the Applicant advice at a lengthy conference on 2 September 2015 in the presence of Mr Selliah. The advice of Mr Bodisco explained clearly the nature and elements of the charges brought against the Applicant and the evidence upon which the Crown proposed to rely. The options available to the Applicant were explained in this conference by Mr Bodisco, who had considerable experience in criminal law. The Applicant indicated that he had not had detailed advice of this type in the past and he gave instructions to seek to negotiate a plea agreement with the Crown. No pressure was placed upon the Applicant by Mr Selliah or Mr Bodisco, both of whom acted in a professional, careful and caring way in their dealings with the Applicant.

103. On 11 and 16 September 2015, the Applicant maintained his instructions to negotiate a plea agreement with the Crown, with Mr Bodisco and Mr Selliah being successful in that regard and with the Applicant being well aware of the nature of the charges to which his pleas of guilty were to be entered and the offence to be placed on a Form 1.

104. The Applicant was nervous about the possible outcome of the sentencing proceedings. However, this was not because of any lack of understanding on his part of the charges and the evidence supporting the charges. In November 2015, the Applicant expressed some concern about his pleas to Mr Dallas of Legal Aid NSW, who acted carefully and gave appropriate advice to the Applicant concerning his options, with the Applicant confirming that he wished to maintain his pleas of guilty and not make an application for leave to reverse the pleas. The District Court was so informed by Mr Dallas on 7 December 2015.

105. In and after March 2016, Mr Humphries briefed Mr Viney to appear at the sentencing hearing and both Mr Humphries and Mr Viney conferred with the Applicant using a Tamil interpreter, and took full instructions from him for the purpose of the sentencing hearing. Once again, the Applicant well understood the nature and elements of the charges to which he pleaded guilty and confirmed his understanding that there was an advantage to him in the Crown not proceeding with the most serious charge, the s.61J(1) matter.

106. Mr Viney and Mr Humphries acted for the Applicant at the sentencing hearing on 9 June 2016 and no event that day served to call into question or compromise the integrity of the Applicant’s pleas of guilty, which had been confirmed by then on several occasions in his dealings with different legal representatives.

Determination of the Application

107. After this lengthy narrative, it is appropriate to return to the sole ground of appeal.

108. The onus lies upon the Applicant to establish a good and substantial reason for the Court granting him leave to withdraw his pleas of guilty. As noted in R v Thalari at 312 [33] (at [18] above), an application to withdraw a plea of guilty is to be approached with caution bordering on circumspection. The present application is a good example of the reason why the Court should approach such an application cautiously.

109. The Applicant well understood the elements of the offences to which he pleaded guilty and of the offence which he asked to be taken into account on sentence on a Form 1. Even if it be the case that the Applicant pleaded guilty to these matters upon grounds which extended beyond his belief in his guilt (and I do not so find), this provides no real assistance to him on this application. As was made clear in Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 and Wong v Director of Public Prosecutions (NSW) (see [19] above), the acceptable reasons why a person may plead guilty to offences extend beyond the person’s belief in his guilt, and include the hope of obtaining a more lenient sentence than he would if convicted after trial and the advantage of the Crown not proceeding with a more serious charge. Those features manifest themselves in this case.

110. As this Court has observed, the task of determining whether a miscarriage of justice is established does not ordinarily involve investigation of the person’s guilt or innocence, but rather an examination of the integrity of the plea of guilty itself: R v Rae (No. 2) at 188 [20]. Reference has been made earlier (at [70]-[72] to the strength of the Crown case against the Applicant not for the purpose of investigating the Applicant’s guilt or innocence, but to allow an understanding as to how legal advice was given to the Applicant, and accepted by him, as to the consequences of his pleas of guilty and the advantages to him which included the Crown’s withdrawal of the s.61J(1) charge.

111. The Applicant’s pleas of guilty were entered freely and voluntarily, and were the subject of careful advice from a number of solicitors and barristers whose instructions were confirmed by the Applicant in writing on three different occasions. The pleas were entered with full knowledge of the essential elements of the offences and the charges and the facts upon which the charges were based. To the extent that expediency formed part of the Applicant’s decision to enter the pleas of guilty, this was clearly a decision taken by him in what he perceived to be his own interests by removing the risk of being found guilty of the s.61J(1) charge and to advance his hope of obtaining a more lenient sentence.

112. In my view, the Applicant has fallen well short of demonstrating that a miscarriage of justice will occur if he is not permitted to withdraw his pleas of guilty in this matter. I would reject the sole ground of appeal.

107. As there is no merit in the Applicant’s ground of appeal, no useful purpose would be served in granting an extension of time in this case. It follows that the interests of justice do not require an extension of time for the Applicant to seek leave to appeal against conviction under ss.5(1) and 10(1) Criminal Appeal Act 1912.

108. Since writing this judgment, I have had an opportunity to read the judgment of N Adams J. I agree with the additional observations made by her Honour in that judgment.

109. I propose that the application for an extension of time within which to seek leave to appeal be refused.

110. N ADAMS J: I agree with the reasons of Johnson J and the orders he proposes. The determination of this application for an extension of time to bring an application for leave to appeal against conviction involved making findings of facts based on contested evidence. I have made my own assessment of that evidence and arrived at the same factual findings as Johnson J but I wish to make two additional observations concerning the evidence before the Court on this application.

111. First, I have approached this application on the basis that the task of determining whether a miscarriage of justice occurred turns on an examination of the integrity of the plea of guilty rather than any question of the Applicant’s guilt or innocence. Despite this, I am satisfied that it is appropriate to have regard to the different explanations the Applicant has provided since 2013 of what occurred on the train on 1 November 2013 in assessing his credibility overall. The evidence before this Court discloses that he has given a number of different versions of events.

112. The first version of events the Applicant gave to police (with the aid of an interpreter) was when he was interviewed on 20 November 2013. He admitted being on the train (CCTV footage depicted this to be the case in any event) but claimed not to have noticed anyone on the train as he was “dozing”. He denied touching “Mary” in any way (this version was contained in the agreed facts).

113. A different version of events was provided to Dr Furst. His report dated 23 April 2016 includes the following: “he claimed that he was unable to recollect the offence in question before the court, making it difficult to form any firm conclusions about his motivations for the offending”.

114. A third version of events was provided to Snezana Galea, the Senior Community Corrections Officer who provided the pre-sentence report dated 30 November 2015. She noted the following:

“When discussing the Police Facts, Mr Kanakaradnam initially denied any recollection of the offences. He explained that he was adversely affected by changes to his medication at that time and could not recall anything apart from boarding the train and disembarking at his destination. Subsequently Mr Kanakaradnam said that he recalled only touching the victim on the breast and planning to meet with the victim later that day. When asked to provide an explanation to clarify his earlier claim of no recollection, Mr Kanakaradnam said that he went home, ate and showered and felt well again. Mr Kanakaradnam did not entirely agree with the Police Facts as outlined. He said that he accepts he must have behaved as outlined but did not remember the events entirely, often referring back to a change with his medication. When discussing the impact on the victim, Mr Kanakaradnam said that it was very wrong indeed to violate a woman; more so a woman with a disability”.

121. Two different versions of events were provided to Mr Viney and Mr Humphries in conference on 31 May 2016. Johnson J has extracted the relevant notes from that conference at [86]-[87]. Those conference notes disclose that the Applicant initially told his legal representatives during that conference that he could not recollect what happened on the train with the young girl and later said “I didn’t do big harm. I didn’t force her”.

122. A further version of events was provided in his affidavit to this Court. In that affidavit he stated:

“The victim in this matter is of age. I do not believe that there was an apparent deficiency of mind of the victim at the time of our interaction. I thought that she was the age that she appeared (being over 18 years old) and that my interaction with her was at all times consensual. It was at no time prior to or during the time of my interactions with her that I formed an opinion that she did not have capacity of mind.”

123. These different versions raise doubts as to the Applicant’s credibility and provide a further basis for my concurrence with Johnson J that the Applicant’s evidence ought not be accepted on important matters unless it was corroborated by independent evidence.

124. The second observation I wish to make relates to the relevance to this application of the fact that the Applicant did not have an interpreter in court either when he entered his pleas of guilty on 16 September 2015 or at the beginning of his proceedings on sentence on 9 June 2016.

125. In relation to the entering of the plea on 16 September 2015, I am satisfied that by that stage the Applicant had already given clear written instructions to enter the pleas of guilty. Furthermore, the Applicant subsequently considered traversing his plea but then confirmed in writing his instructions not to do so. Those written instructions were given with the aid of an interpreter. In those circumstances, I am satisfied that subsequent events intervened such that the absence of a court interpreter on 16 September 2015 could not have contributed to any miscarriage of justice in any event.

126. As for the proceedings on sentence on 9 June 2016, the transcript reveals that Madgwick QC ADCJ made the following observations on that day in relation to the late appearance of the interpreter:

“VINEY:   The other complication we have is that he requires a Tamil interpreter

HIS HONOUR:    I know. There is one available for 2, I’m told

VINEY:      I’ll get some instructions after ---

HIS HONOUR:   Is he in court?

VINEY:      Yes your Honour.

HIS HONOUR:   How long has he been in the country?

VINEY:      I think it was 2010, your Honour, that he came.

HIS HONOUR:   But he’s apparently able to speak to [“Mary’s” work supervisor] in McDonald’s, and he’s sufficiently confident of his English to be ringing a non-English speaker on the phone

VINEY:      It’s very limited English, from my experience

HIS HONOUR:   I’m not disputing that he needs an interpreter, but does he need an interpreter while we deal with the matters? First of all, all the material can be formally tendered before me

VINEY:      Yes, your Honour

HIS HONOUR:   Since you are not going to call him -

VINEY:      That was my initial plan, your Honour

HIS HONOUR:    You can call him at 2 o’clock if you want to

VINEY:   I’ll need to speak to him through the interpreter at 2 o’clock……

…

HIS HONOUR:    … my point is this: there is no reason the absence of an interpreter can prevent us getting on a fair distance with the case -

VINEY:      No, that’s right, your Honour.

HIS HONOUR: - before the interpreter turns up. I’ll say not before 11.”

127. The matter was then stood in the list. When the matter came back before his Honour the transcript reflects that the Crown prosecutor commenced the proceedings by noting, “at this stage without the interpreter I’ll just formally hand up the Crown bundle to your Honour”. The documents relied upon by both the Crown and the Applicant were then tendered and some legal principles discussed including the question of whether the offences warranted a period of full-time imprisonment. The matter was then adjourned until after the lunch break.

128. When the interpreter arrived at court during the lunch break the Applicant’s legal representatives were able to confer with the Applicant through the interpreter. At that time signed instructions were obtained from the Applicant, as referred to by Johnson J at [94]. The interpreter was present in court from that time.

129. Complaint was made by the Applicant’s counsel in this Court that the Applicant’s legal representatives should not have proceeded as far as they did in the absence of the interpreter. I agree with Johnson J that although it would have been preferable that a Tamil interpreter was present to assist the Applicant to follow the proceedings, it is difficult to see how this fact impacted upon the integrity of the Applicant’s pleas of guilty. The transcript discloses that, during the time when the Applicant did not have an interpreter, all of the written material was tendered for his Honour to read and some legal submissions made in circumstances where the Applicant’s legal representatives already had the relevant instructions from the Applicant. Accordingly, I am not satisfied that the absence of an interpreter during this time contributed to any miscarriage of justice either.

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Decision last updated: 07 December 2018