Kim Hollingsworth v Bushby (RSPCA)
[2014] NSWDC 101
•16 May 2014
District Court
New South Wales
Medium Neutral Citation: Kim Hollingsworth v Bushby (RSPCA) [2014] NSWDC 101 Hearing dates: 14 - 16 May 2014 Decision date: 16 May 2014 Before: Neilson DCJ Decision: Application refused.
Catchwords: Application seeking leave to withdraw pleas of guilty entered in Local Court - Pleas entered and matter adjourned - Application made in Local Court to traverse pleas refused - Leave refused
Applicant alleged counsel for prosecution induced entry of pleas by promise of return of horses the subject of the proceedings - Alleged inducement relayed by acquaintance of applicant - Conflict of evidence as to what, if anything, was said between counsel and acquaintance - Evidence of acquaintance inconsistent with court transcripts - Counsel indicated on the record that an order would be sought limiting the number of horses kept by applicant - No protestation made by applicant - Evidence of counsel preferred
Purported failure of prosecution to obtain advice from prescribed authorities before commencing prosecution - not raised in Local Court, therefore not available on appeal
Whether insufficient time to fully comprehend charges - Applicant asserted "charges were frequently withdrawn" - Amendments to charges reduced factual matters required to be considered - Applicant had in excess of 6 months to consider charges - Applicant had benefit of Court Attendance Notices and prosecution opening - No protestation made - Transcript and proceedings below indicate applicant understood charges
Whether insufficient time to consider evidence - Applicant had been served with prosecution statements prior to hearing - Applicant utilised opportunities to call evidence, cross-examine and re-examine - No disadvantage
Documents of applicant "stolen" during Local Court proceedings - Electronic copies available - No complaint of disadvantage - No application for adjournment
Asserted affliction of mental illness during Local Court proceedings - Mental status examination did not disclose impairment of factors relevant to conducting litigation - Generally PTSD, anxiety and depression do not affect a person's ability to prosecute or defend a case - Evidence that applicant's presentation in District Court the same as in Local CourtLegislation Cited: Prevention of Cruelty to Animals Act 1979
Rural Lands Protection Act 1998Cases Cited: Meissner v The Queen (1995) 184 CLR 132
R v Hura [2001] NSWCCA 61
R v Kouroumalos [2000] NSWCCA 453
R v Rae (No 2) [2005] NSWCA 380; 157 A Crim R 182
R v Wilkinson (No 4) [2009] NSWSC 323Category: Principal judgment Parties: Kim Hollingsworth
RSPCA Inspector Gillian BushbyRepresentation: Counsel:
In person (Applicant)
Mr Sutherland SC (Respondent)
Solicitors:
In person (Applicant)
Hunt & Hunt (Respondent)
File Number(s): 2012/300709 Publication restriction: No
Judgment
HIS HONOUR: Before me at the present time is an application to withdraw pleas of guilty entered by the applicant to certain charges which she faced in the Local Court. The applicant entered pleas of guilty on 17 April 2013. As a consequence of those pleas the applicant appeared for sentence before Magistrate Miszalski in the Central Local Court on 29 July 2013. On that day the applicant sought leave from the learned magistrate to withdraw her pleas of guilty. That application was refused. His Honour then proceeded to sentence the applicant.
The applicant subsequently filed notices of appeal to this Court. The matter that is currently before me comes before me irregularly. The notices of appeal that were filed were appeals against the severity of sentence. In the Local Court the applicant had faced 11 charges. Each charge was commenced by a separate Court Attendance Notice. The applicant filed notices of appeal in respect of the first seven charges, those appeals being, as I have said, against the severity of sentence. With the consent of the respondent I have granted leave to the applicant to bring an appeal against the severity of sentence in respect of the remaining four convictions.
However the applicant seeks leave to appeal against her conviction in respect of each of the 11 charges, essentially on the basis that she should be permitted to withdraw the pleas of guilty which she entered in the Local Court. The matter is before me irregularly because no formal application for leave to appeal has been filed nor has any notice of appeal against any conviction been filed. However I proceed on the basis, and the respondent has not objected to this course, as if there had been a motion filed seeking leave to appeal against conviction and seeking leave to withdraw the pleas of guilty.
The applicant was not legally represented in the Local Court nor has she been legally represented in this Court. To understand the nature of the application it is necessary to look at the course of the proceedings below and in this Court. The prosecutor is RSPCA Inspector Gillian Bushby an employee of the Royal Society for the Prevention of Cruelty to Animals. Each of the 11 charges has been laid pursuant to the Prevention of Cruelty to Animals Act 1979.
The applicant can be described in short terms as a lover of horses who describes herself as a "rescuer" of horses which have been abandoned by their true owners or were otherwise in danger. The applicant was the owner of three properties. I use the past tense only because I do not formally know the current position, although I expect she still is the owner of the three properties to which I shall refer. The first property is described as 85 Lisa Road, Wilton. I know from exhibit 6 in the court below that the approximate size of that property is five hectares or 12.5 acres. The second property has been described as 350 Werombi Street, Cobbitty but I do not know the size of that property. The third property has been described as 95 Tilba Road Mulgoa and according to exhibit 6 in the court below the size of that property is approximately 80 hectares or 200 acres.
The applicant kept horses on each of those three properties. Charges numbered 1, 4, 7 and 9 refer to horses on the property at Wilton. Charges numbered 2, 5 and 8 referred to horses kept on the property at Cobbitty and charges numbered 3, 6, 8 and 11 refer to horses kept on the property at Mulgoa. The first eight charges were of offences contrary to s 5(3)(c) of Prevention of Cruelty to Animals Act 1979, that is, they were charges that the applicant, being a person in charge of an animal, failed to provide the animal with veterinary treatment. Charges numbered 9, 10 and 11 were offences contrary to s 8(1) of the same Act of failing to provide proper and sufficient food to certain horses resulting in a very poor body condition.
The applicant was served with the Court Attendance Notices on 13 September 2012. They were filed on the following day, 14 September 2012, in the Local Court at Campbelltown. They were first returnable before that court on 2 October 2012. It appears that they were before the Local Court at Campbelltown on probably that date as well as on 29 October 2012, 27 November 2012 and 17 December 2012 when the charges were set down for hearing on 8 April 2013 with an estimate of four days. The hearing was to be held in the Downing Centre Local Court because of the expected length of the hearing. The matter was also before the Local Court on 18 March 2013 but I do not know whether that was in the Local Court at Campbelltown or the Downing Centre Local Court. In any event the hearing dates were confirmed on that day.
The hearing of the charges commenced before Magistrate Miszalski in the Downing Centre Local Court on Monday 8 April 2013. The prosecutor was represented by Mr Porter of counsel. The hearing continued on Tuesday 9th, Wednesday 10th and Thursday 11 April 2013. The hearing was not completed on that day. The matter did not proceed on Friday 12 April 2013 but recommenced before Magistrate Miszalski on Monday 15 April 2013. On that day the evidence was concluded and counsel for the prosecutor commenced to address the court. The proceedings were adjourned to Wednesday 17 April when Mr Porter handed up to the court written submissions, a copy of which were provided to the applicant. She was given time to read those written submissions. Mr Porter finished his oral submissions on p 8 of the transcript of 17 April 2013 and the applicant then commenced to address the court.
The transcript records that his Honour took a short adjournment at p 20. That adjournment appears to have been to permit the applicant to finish reading Mr Porter's submissions and to "absorb" them. The first part of the applicant's submissions has not been recorded because, according to the transcript, the recording equipment had not been turned on. During the applicant's oral submissions, his Honour engaged in the Socratic method with the applicant. On p 21 of the transcript of 17 April 2013 commencing at line 11 his Honour said this:
"You see, wise counsel would have probably said to you, bearing in mind what's happened to you with this group of people and the effect that it's had on you, perhaps the wise thing would be to plead guilty and say, look there's a good reason for everything falling apart."
The words "this group of people" referred to a number of people whom the applicant described as the Facebook Hate Group, some of whom from time to time, at least, occupied the gallery of the Local Court. After further interchanges with the applicant, his Honour is recorded on p 22 as saying this:
"I'll say it once again, the wise counsel would have probably said to you, 'Look, we can put up a case that there's probably something that we could put to the Court to say, well look there's some extenuating circumstances just for this short period of time when you were being harassed by these other people, everything fell off. The wheels fell off everything.'"
The first line of the applicant's response to that was this:
"Well, that's, that's basically what I've been trying to say."
At the foot of that page of the transcript the applicant is recorded as saying this:
"Well, so I guess I felt like I wasn't - I felt I wasn't guilty because of all of that, that happened. That's what I felt. Because, this has never happened to me before in my life. I mean, the amount of money I spent - I plough all my money in those horses. So, do I continue or I change a plea, or I don't know what to do?"
The transcript then continues thus:
"HIS HONOUR: I can't give you advice. You can consider your position if you want to. Your own expert, in effect, summarises it fairly well. You've got too many horses, particularly at this stage, particularly when everything was going wrong.
ACCUSED: Yeah."
There was then a further interchange between the magistrate, Mr Porter and the applicant and the applicant was given a further short adjournment which is set out on p 24, line 27 of that day's transcript.
When his Honour returned to the Bench, Mr Porter advised the court that Ms Hollingsworth had informed him that she had seen the duty barrister at the Downing Centre. After further interchange his Honour asked the applicant to tell him what had happened. This interchange then occurred:
"ACCUSED: Okay. I would like to plead guilty now. I'd like to change my plea, and that's after speaking to the duty barrister because he explained some matters to me about having a reasonable excuse, I think was the term, for what occurred during that period of time which...
PORTER: An explanation she said to me, your Honour. Guilty with an explanation, which is a common term that you'll hear people coming to Court here.
ACCUSED: Yeah. And that prior, prior to I think all the evidence is in and I think everyone understands...what happened throughout that period of time...and now it's clear, so I've pleaded guilty. And so I'd just like to take in - that into consideration. Phil Wallis so I spoke with Phil Wallis and he...and I just said when I went outside during the break, I just said, 'There's gotta be a solicitor here somewhere.' And I happened to approach him and he said, 'Yes, I'm a barrister.' And then I said, 'Would you mind if I had a quick word with you?' And so he explained the concept of pleading guilty, because I was opposed to it, because I and then I spoke with him and then he explained that you can, you can, you can recognise that things occurred during that period of time, and that the...there were extenuating circumstances."
At the top of p 28 the learned magistrate inquired again of the applicant whether she decided to change her pleas and she replied that she had. After further interchanges between the Bench, Mr Porter and the applicant, his Honour then set the matter down for sentence on 3 June 2013 having ordered the preparation of a Pre-Sentence Report.
On 3 June 2013 there was a no Pre-Sentence Report available and the matter was then adjourned to Monday 29 July 2013. On that occasion Mr Porter was not available and he was replaced by the general counsel for the RSPCA, Mr Clachers. There was then again no Pre-Sentence Report available because, in essence, the applicant had not cooperated with what was then called the Probation and Parole Service. On p 8 of the transcript of that day, his Honour recorded what was said in a document prepared by the Probation and Parole Service. It is this"
"She claimed that the Court had not advised her of her guilt in these matters, additionally she repeatedly advised that this service needed to understand her legal and personal predicament. Ms Hollingsworth refused to appreciate or accept the role of the service in the matter.
During the above telephone discussions, Ms Hollingsworth consistently presented as defiant and over entitled regarding her perceived circumstances. It is considered that a comprehensive psychological assessment may further assist the Court given Ms Hollingsworth's presentation."
Shortly before his Honour quoted what had been said by the Probation and Parole Service, the applicant had stated this to the court:
"I cannot stand here and say I am guilty when I am not guilty and I knew in my heart I wasn't guilty, right I did not do this to my horses."
Shortly thereafter, and before his Honour read from the Probation and Parole document, Mr Clachers had complained, and I use that word not in any pejorative sense, that if there was to be an application to withdraw the pleas of guilty, it ought be made on a proper basis. His Honour then indicated that he would leave the Bench in order that Mr Clachers and the applicant could have a discussion and for Mr Clachers to advise the applicant what might be involved in seeking to withdraw her pleas of guilty, especially in light of the fact that the learned magistrate had heard the prosecution case and the defence case and then "at the very end" she had obtained some advice from a duty barrister. His Honour also expressed the view that it had been abundantly clear to him that the change of plea made by the applicant had been done "voluntarily." After a short adjournment Mr Clachers advised the court that the applicant indicated that she wished to persist with her application to withdraw her pleas of guilty. The applicant herself said this:
"I would like my horses, that's the most important thing, and I would like - I have to plead not guilty I'm sorry I have to."
After a further interchange between the applicant and the learned magistrate in which Mr Clachers participated peripherally, his Honour then in essence ruled on the application. The following interchange occurred:
"HIS HONOUR: Okay. Well how it works is this, you are unrepresented and I have lent over backwards to assist you in that regard. If you were represented your lawyer would lead you through your evidence and your lawyer would assist you. Your lawyer would have probably put a lid on the evidence that you were giving because it just went on and on, on tangents, a lot of it was so irrelevant. This aspect of what the prosecutor is talking about where there's what's called a traversal of the plea, that is a withdrawal of your plea of guilty. I am not going to allow you to do that, you gave evidence, you presented a case and at the end of that case of yours I gave you some time, you got some advice, you got some advice from a duty barrister and in effect what I recall you telling me was that you were going to be pleading guilty and that you would be in effect seeking a particular result, the result would be in effect a s 10 dismissal with or without a bond as far as the Court's concerned. It's been adjourned a couple of times so that we could get a pre-sentence report and anything else, I've asked you to do certain things as far as getting your father perhaps involved or your vet involved...
"ACCUSED: The vet was involved.
HIS HONOUR: Sorry.
ACCUSED: The vet was involved.
HIS HONOUR: Yes.
ACCUSED: I couldn't involve my father.
HIS HONOUR: Yes okay well I won't allow you to traverse your...plea. That's the matter in for sentence today.
ACCUSED: So what do I do now?
HIS HONOUR: Sit down.
ACCUSED: Okay."
The matter then proceeded on the basis of a sentencing hearing and his Honour gave his reasons for sentence commencing at p 35, line 30 of the transcript of 29 July 2013.
Notwithstanding her having made an application to the Local Court to withdraw her pleas of guilty and having that application refused, the only formal notices of appeal that the applicant filed were pleas against the severity of sentence.
The appeals were first listed before his Honour Judge Berman on 2 October 2013. His Honour granted leave to the applicant to amend her notice of appeal to appeal against the severity of the penalty in respect of Court Attendance Notices numbered 8, 9, 10 and 11 and to seek leave to appeal against a conviction entered against her following her pleas of guilty. The applicant was ordered to file and serve all affidavits and material in support of her application for leave to appeal within 28 days. His Honour also ordered that the transcripts of the hearing in the Local Court be prepared and provided to the parties when they became available. His Honour then listed the application for leave to appeal for mention on 20 November 2013. The applicant did not comply with the orders about amending her notices of appeal nor did she comply with the orders to file and serve any evidence upon which she wished to rely within 28 days.
The matter came before the Acting Deputy Registrar on 20 November 2013 in conformity with his Honour's orders. The Acting Deputy Registrar extended the time for the applicant to file further evidence in support of her applications to 22 January 2014, and ordered that the matter be listed for call over on 29 January 2014.
On 22 January the applicant handed to Mr Clachers a handwritten document, saying words to the effect that those were the grounds of her appeal. The handwritten document is annexure D to the affidavit of Mr Porter, sworn on 9 May 2014. That document is this:
"I require more time as I have not yet obtained a copy of the transcript to address errors of law or errors of fact.
I am, however, prepared to offer the following in support of my application to be granted leave to appeal.
Orr v Holmes (1948). In the interests of justice, further evidence should be heard as it was unavailable at the time of the hearing. I mentioned this on my day of sentencing, and New South Wales Police have now arrested and charged the ringleader of the Facebook Hate Group that terrorised me and my horses causing this chaos.
In light of the above, further evidence, I honestly and reasonably believed that my purchasing proper and sufficient food for my horses and placing it before them in their paddocks/bowls to eat, that they would be eating it. With the chaos created by the Facebook Hate Group's interference, I have evidence now that supports my allegations that the horse feed was being stolen from my horses' mouths at feed time.
Further evidence of one of my horses post mortems should be heard as it is fresh evidence of wormer resistance and a chronic, imperceptible condition which accounted for fluctuating body condition. The veterinary conclusion was I neither neglected nor starved this horse. This horse was subject of a court order and RSPCA - NSW intended to prosecute me for his poor body condition and worms.
R v Bailiff (2011). In the interests of justice, my pre-existing PTSD (from serving with the NSW Police) should have been given more consideration. At the time of the alleged offences I was mentally impaired by the horrific behaviour of the Facebook Hate Group. After the NSW Police Force traumatised me, my horses were what rejuvenated my life. They are more than "just horses", and in over a decade of horse rescue I never had any problems until this Facebook Hate Group terrorised and stalked me. Horse welfare activities and necessities were unfairly delayed by their violent, criminal behaviour, which compounds my trauma and impacted on horse care.
It is in the public interest that "victims" of Facebook hate groups, who are severely impacted by criminal violence, are not prosecuted, convicted and punished. Indeed, the courts must begin to demonstrate zero tolerance of such vigilantes who use beloved horses of "victims" to inflict pain upon them. The court should demonstrate to the public that had harassing, stalking and terrorising a person using Facebook as a means to collude and commit criminal activity will not be accepted in society - especially when the intended goal is "jail" (quote from Facebook Hate Group) for the traumatised victim.
RSPCA NSW (in light of NSW Police charging Facebook Hate Group individuals) must, in the public interest, be put on notice not to collude with or put on their payroll members of such Facebook hate groups, as it is a serious conflict of interest and such behaviour impacts severely on the "victim" or "defendant", further increasing mental impairment."
I should point out that the last two matters referred to in that list are matters not for any court, but for Parliament. In the respondent's submission, the handwritten document handed to the prosecutor on 20 November 2013 is important for what it does not say.
The matter again came before the Acting Deputy Registrar on 29 January 2014. The applicant consented to the following orders:
"1. That the appellant file and serve all submissions in support of her application for leave to appeal by 27 November 2014;
2. That the respondent file and serve submissions in reply by 26 March 2014;
3. That the application for leave to appeal be listed for hearing on 3 April 2014."
The estimate of time given for the hearing was "three hours". The applicant did not comply with the first order made by the Acting Deputy Registrar and, accordingly, the respondent was unable to comply with the order concerning it.
On 3 April 2014 the matter came before his Honour the Chief Judge, Blanch J. The matter was adjourned on that day. His Honour set the matter down for hearing on 14 May 2014 and directed that the matter must proceed on that day. His Honour placed a two hour estimate for the change of plea application and the appeal hearing. That was overly optimistic.
The matter came before me on 14 May 2014 and the evidence took two days. Today is the third day of the hearing of part only of the application, the application for leave to withdraw the pleas of guilty.
On 3 April, the applicant handed up to the court and gave to the respondent written submissions, which have been marked "2" for identification. Annexed to that document was a statutory declaration of Ms Melissa Plunkett, made on 28 March 2014, and a very short report, indeed it might be described as a certificate, of Dr Parvesh Kapoor, bearing date 28 March 2014. Significantly, the applicant did not prepare any affidavit or statutory declaration herself.
When the matter came before me, the respondent objected to the applicant's giving oral evidence because the respondent had no notice of what she might say and therefore had no notice of what evidence it ought adduce against what she might say and, furthermore, the applicant, according to the respondent, might raise extraneous or tangential matters, which was clearly what she did in the Local Court. Because of the applicant's failure to comply with orders that were made earlier in this Court, her oral application to give oral evidence was refused.
LEGAL PRINCIPLES
On this application I have been referred to a number of authorities. They include Meissner v The Queen (1995) 184 CLR 132, R v Kouroumalos [2000] NSWCCA 453, R v Hura [2001] NSWCCA 61, R v Wilkinson(No 4) [2009] NSWSC 323, and R v Rae (No 2) [2005] NSWCA 380; 157 A Crim R 182.
The summary of the law contained in R v Wilkinson (No 4) made by Johnson J commencing at [42] is particularly helpful but the principles have been more recently and more authoritatively stated in R v Rae (No 2) by the Court of Criminal Appeal. The principal judgment of the court was given by Giles JA with whom Hislop and Rothman JJ concurred. His Honour said this:
"21 It is important to appreciate that the question in cases such as the present is not guilt or innocence as such, but the integrity of the plea of guilty. As was said by Howie J in Wong v Director of Public Prosecutions [2005] NSWSC1299 at [33]-
'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 residing 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 said the following at 157 (footnotes omitted):
"It is true that a person may plead guilty upon grounds which extend beyond the 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 into that upon the basis 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 nor 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 forward."'
22 The circumstances in which a miscarriage of justice may be found have been variously expressed, but an exhaustive recitation of instances is not possible. I avenge to repeat what I said, with the agreement of Buddin J and Smart AJ, in R v SL at [50] - [51] -
'50 In R v Hura it was said that a number of circumstances had been identified when a conviction may be set aside notwithstanding a plea of guilty. Statements of the circumstances included that the appellant did not appreciate the nature of the charge to which the plea was entered (R v Ferrer: Esis (1991) 55 Australian Criminal Reports 231 at 233); that the plea was not a free and voluntarily confession (R v Chiron at 220); that the plea was not attributable to a genuine consciousness of guilt (R v Murphy at 191); that the plea was induced by threats or other impropriety where the appellant would not otherwise had pleaded guilty, so that the plea was not really attributable to a genuine consciousness of guilt (R v Cincotta, CCA 1 November 1995); that the plea was equivocal and made in circumstances suggesting that it was not a true admission of guilt (R v Maxwell (1995) 184 CLR501 at 511); and that the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt (R v Davies at 485). These instances of where a miscarriage of justice may be found, not exhausted statements of the test for miscarriage of justice.
51 The plea itself is a cogent admission of the ingredients of the charge (R v O'Neill (1979) 2 NSWLR582; R v Sagiv (1986) Australian Criminal Reports 73; R v Davies), and was said by Brennan, Toohey and McHugh JJ Meissner v The Queen at 141-
"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court doesn't act on such a plea, even if the person entering it is not in truth guilty of the offence."'
23 An accused person may plead guilty and be held to his plea, although asserting his innocence. That is made clear in passages in Meissner v The Queen...earlier noted. If the accused person is advised to plead guilty, despite his assertion of innocence, because of a perceived advantage, and he accepts the advice, the focus will be on whether he exercised a free choice in what he believed to be in his interests at the time. As was said by Howie J in Wong v DPP at [37]:
'37 But if the plaintiff by taking the advice proffered to him, enter the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interest 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.'
24 Underlying this is that our legal system is adversarial, in criminal litigation as well as civil litigation. With the qualification in the event of flagrant incompetence (R v Birks (1991) 19 NSW 677), as a general rule an accused person is bound by the way his legal representatives have conducted the litigation, as to the admission of evidence, cross-examination, jury directions and why they are tactical decisions [see for example R v Suresh [1998] HCA 23;(1998) 153 ALR 145; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124). Rarely will it be held that a miscarriage of justice lies in the accused's forensic choice, 'consciously elected with a prospect of perceived advantage, but the peril of risks to the accused' (R v Suresh [55] per Purvy J). So also a forensic choice to plead guilty, considered by the accused to be in his interests, will not give rise to a miscarriage of justice unless it is established that it was entered in circumstances of the kind instanced above."
It is important also to bear in mind what fell from Johnson J in R v Wilkinson (No 4) at [43]:
"43 The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 at 536-537 [16]- [23]. The Applicant 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 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]."
THE APPELLANT'S GROUNDS
The applicant's submissions, MFI 2, sets out the various tests cited by Spigelman CJ in R v Hura and makes submissions in respect of each of them but often repeats what was said about some earlier ground. The "submissions" also contain allegations of fact. Doing the best I can I have distilled seven separate grounds on which the applicant bases her current application.
FIRST GROUND - POINT NOT TAKEN BELOW
The first is the failure by the prosecutor to comply with the provisions of s 8(4) of the Prevention of Cruelty to Animals Act 1979. As I have already stated, there were only three charges under s 8(1) of that Act and a failure to comply with s 8(4) is completely irrelevant to the first eight charges, all of which were made under s 5(3)(c) of the Act. Section 8(4) is in the following terms:
"Before commencing proceedings for an offence against subsection (1) in respect of a stock animal depastured on rateable land (within the meaning of the Local Land Services Act 2013), the prosecution must obtain advice from the Local Land Services and the Department about the state of the animal (if practicable) and the appropriate care for it."
That is the current provision in the Act although I note that s 8 was amended by Act No 51 of 2013 which received the Royal Assent on 1 July 2013 and commenced on 1 January 2014. As I understand it, the only difference is to the description of the relevant legislation and the description of the appropriate department. According to Mr Porter's affidavit the relevant provision of the subsection at the time was this:
"Before commencing proceedings for an offence against subsection (1) in respect of a stock animal depastured on rateable land (within the meaning of the Rural Lands Protection Act 1998) the prosecution must obtain advice from a livestock health and pest authority and the department about the state of the animal (if practicable) and the appropriate care for it."
It appears from what was said in the proceedings before me that at the time the appropriate department was the Department of Primary Industries.
According to Mr Porter's affidavit s 8(4) was only referable to charge number 11. That is in respect of the land at Mulgoa because the lands at Wilton and Cobbitty were not "rateable" within the meaning of the Rural Lands Protection Act 1998. A failure, therefore, to comply with s 8(4) is relevant only to one of eleven charges. Furthermore, it must be borne in mind what was said by Giles JA in [24] of R v Rae (No 2) which I have already quoted. Our legal system is adversarial. That applies to criminal litigation as well as civil litigation. The point now raised by the applicant was never raised in the court below. If she can raise it in this Court she could have raised it in the court below but did not. If she had raised it in the court below the prosecution could have sought leave under subsection 8(5). That subsection is this:
"The prosecution may, with the leave of the Court granted in such circumstances as the Court considers just, commence or continue proceedings for an offence against subsection (1), despite having failed to comply with subsection (4)."
The words "commence or continue proceedings" indicate that proceedings commenced contrary to the provisions of s 8(4) are not a nullity and if the applicant took the point that there had been no advice obtained from the appropriate department or "a livestock health and pest authority" then the prosecutor in the court below, the current respondent, could have sought leave from the Local Court. The current applicant not having the point in the court below is in my view unable to raise it in this Court and in any event it only affects one of the 11 charges. It is not any ground at all in which to grant leave to set aside the pleas of guilty. It could only be applicable to one of those pleas but it in any event it is not, in my view, available.
SECOND GROUND - INSUFFICIENT TIME TO COMPREHEND THE CHARGES
The second ground of appeal which I distil from the applicant's written submissions is that she had been granted insufficient time to fully comprehend all the charges against her. In stating that, the applicant goes on to point out that, "charges were withdrawn frequently", which is patently untrue. Three of the charges were amended during the course of the hearing before the Local Court. The fourth charge was amended to refer not to 17 horses but to 11 horses. The fifth charge was amended to refer to seven horses rather than eight horses and the sixth charge was amended to refer to 13 horses instead of 15 horses. Nothing turns upon the amendments other than it may have made it easier for the applicant to deal with the case because it reduced the number of factual matters to be considered. The suggestion that the applicant did not understand the charges or fully comprehend them is, with the utmost respect to her, risible.
Firstly, she was served with the 11 Court Attendance Notices on 13 September 2012. The Court Attendance Notices specify in respect of each charge, a time and date of an offence, the place of the offence and then give short particulars of the offence. For example, the first charge is that between 18 June and 18 July 2012 at 85 Lisa Road, Wilton, the accused did fail to provide veterinary treatment to 12 horses, all being severely underweight and in poor condition. The second charge provides the same particulars but in respect of three horses at the property at Cobbity during the same period. The third charge is the same but in respect of 11 horses at the property at Mulgoa during the same period. The fourth charge is that between 18 June and 18 July 2012 at 85 Lisa Road, Wilton, the accused did fail to provide veterinary treatment to 17 (later amended to 11) horses for significant intestinal worm burdens. The fifth charges is the same but in respect of the property at Cobbity in respect of 8 (later amended to 7) horses. The sixth charge is the same but in respect of initially 15 (later amended to 13) horses at Mulgoa. The remaining charges are again are of greater specificity in that they refer to specific horses for certain specified injuries for which the horses required treatment. For example, the seventh charge is that between 13 July and 18 July 2012 at the property at Wilton, the accused did fail to provide veterinary treatment to a thoroughbred mare named, "Flame", for a wound on her left shoulder. The eighth charge was that between 13 June and 18 July 2012, at Mulgoa, the accused did fail to provide veterinary treatment to a bay standardbred gelding, "Harry", for a swollen sheath. The ninth charge was a charge under s 8(1) in respect of Flame at the Wilton property. The tenth charge is again under s 8(1) in respect of a standard red mare, "Sally", at the Cobbity property and the eleventh charge is in respect of four named horses at the Mulgoa property, again pursuant to s 8(1). The charges are easily understood especially by a lady with a keen interest in horses.
The applicant had between 13 September 2012 and 8 April 2013, a period of well over six months, to consider the nature of the charges offered against her. In addition, the first part of the first day was taken up by an opening address by counsel for the prosecution The opening is of great utility to me, no doubt it was to the learned magistrate, and would also have been to the applicant.
Paragraph 15 of Mr Porter's affidavit, contains this matter:
"At no time during the summary proceedings did the applicant raise an issue that she did not understand the case against her or that she needed more time. The transcript reflects that. The first time I became aware of such an issue was in the morning of Thursday, 3 April 2014 when this matter was before the Chief Judge of the District Court and the applicant's submissions were handed to Mr Clachers and Blanch J. No issue was raised at the Local Court sentence proceedings on either 3 June 2013 or 29 July 2013, that the applicant did not understand the case against her."
I am not at this time considering the grounds that the applicant did not understand the case against her but rather to understand the charges against her. It is abundantly clear from looking at the transcript as a whole and for the whole of the proceedings both in the Local Court and in this Court, that the applicant well understood the nature of the charges against her. It was drawn to her attention in Mr Porter's opening that these were crimes of strict liability and that it was not necessary for the prosecution to prove any relevant guilty mind, meaning that the facts were as alleged and her knowledge of the facts and her intentions were irrelevant unless she could raise a defence of an honest and reasonable mistake. However the evidence clearly rebutted an honest and reasonable mistake because the applicant had had brought to her attention by RSPCA inspectors, their concerns about the horses antecedent to the charges being laid and antecedent to the alleged failures of the applicant to provide veterinary treatment and/or adequate or sufficient food. I cannot accept at all that the applicant did not understand, that is fully comprehend, all the charges against her.
THIRD GROUND - FAILURE TO UNDERSTAND THE CHARGES
The third ground of appeal that I can distil from the applicant's written submissions is somewhat the same. It is that prior to entering her pleas of guilty, the charges were never properly put to the applicant. However, again, there were the Court Attendance Notices, the opening by Mr Porter and there was no protestation at any time by the applicant that she did not understand the charges, did not comprehend them or that she did not have an opportunity of responding to them in any formal sense. This ground is without any merit whatever.
FOURTH GROUND - "STOLEN" DOCUMENTS
The fourth ground that I can distil is that certain of the documents which the applicant had, had been, "stolen", from her on the first day of the hearing. However, at no time did the applicant apply for an adjournment because she had missing documents. There was an interchange about these stolen documents on the 8 April 2013 between the learned magistrate and the applicant. However, at p 21, line 42 the applicant said this:
"I've still got copies of the, my laptop though".
In other words some physical documents may have been taken from the applicant but she still had electronic access to them. That ground is without any foundation. If the applicant had been disadvantaged by having hard copies of her documents stolen she could have applied for an adjournment and no doubt the learned magistrate would have granted it. However, she did not.
The fifth ground which I can distil is the principal ground agitated before me and I shall turn to the remaining two grounds which I have distilled.
SIXTH GROUND - APPELLANT'S MENTAL ILLNESS
The sixth ground that I have distilled is that the applicant was afflicted by mental illness. Exhibit A2 is Dr Kapoor's certificate which I earlier mentioned and that says this:
"This is to certify that Kim Hollingsworth has been my patient for many years and suffers from PTSD [Post-traumatic stress disorder] anxiety and depression [.] From 2012 till now she has had a few flare-ups of above symptoms which has [sic] affected her ability to function and face court proceedings [.] During said period she had to witness two autopsies on horses which has had significant impact on her."
In quoting the document which was handed to the respondent's legal representatives on 20 November 2013 I quoted what the applicant maintained about her pre-existing post-traumatic stress disorder from her alleged service with the NSW Police although the applicant told me from the Bar table that she had not been a police constable as such but had only attended the police academy.
The applicant tendered on this application documents produced on subpoena by Ms K Alex a consulting psychologist who calls herself a doctor but there is no evidence that she has that qualification. It appears that Ms Alex first saw the applicant on or about 28 September 2012 on referral from Dr S Kazmi who worked at Dr Kapoor's practice. The records of Ms Alex contain a general practitioner's mental health treatment plan which details a mental status examination. The following conditions have all been said to be normal: appearance and general behaviour, thinking, perception, cognition, attention/concentration, memory, insight, orientation, affect, appetite, judgment and speech. The conditions said to be other than normal were her mood, her sleep, her motivation/energy, and physical and emotional symptoms of anxiety. All of the factors relevant to conducting litigation or to defending proceedings in the Local Court were normal, that is, thinking, cognition, attention and concentration, memory, insight and judgment.
The DASS test was administered by Ms Alex on 28 September 2012. That gave extremely severe scores for depression, anxiety and stress. Another such test was administered on 11 January 2013 and again the applicant was rated as being having extremely severe depression, anxiety and stress, however the level of depression fell significantly from 42 to 32. The level of anxiety increased slightly from 34 to 36 and the level of stress showed no change at all. Overall there was some amelioration of her condition between 28 September 2012 and 11 January 2013 when the current charges were pending before the Local Court at Campbelltown.
Notes made by Ms Alex indicate that the applicant went to her on 11 January 2013 complaining of being very sick and unwell because of severe tension headaches leading to excruciating migraines. There was a complaint of the "trauma of the court cases" of apprehended violence orders having been served against her and of three of the horses having been stolen in one week. Then there were complaints made against the Facebook Hate Group and the RSPCA.
Furthermore, conditions such as post-traumatic stress disorder and anxiety and depression do not in general affect a person's ability to become involved in litigation, to prosecute a claim or to defend a case. The cases are legion in which former members of the NSW Police come before this Court, seeking hurt on duty pensions for post-traumatic stress disorder and other psychiatric conditions, and are quite capable of giving detailed and lengthy evidence about the history and what has occurred to them over periods of say 20 or 30 years. Cases in which plaintiffs seek damages for personal injury often suffer from psychiatric illness resulting from physical injuries and sometimes merely for what was once termed nervous shock and now might be described as mental harm. The general experience of the courts is that a condition such as PTSD does not interfere with the ability of a person to prosecute or defend a case.
SEVENTH GROUND - INSUFFICIENT TIME TO CONSIDER THE EVIDENCE
The seventh and final ground that I have distilled from the applicant's written submissions is that she had insufficient time to consider the evidence. This again appears to me to be without any foundation whatever. The applicant admitted that she had been served with all the statements upon which the prosecution was relying prior to the hearing actually commencing. That can be found on p 38, line 1 of the transcript of evidence given on 8 April 2013.
To assist the applicant learned counsel for the prosecution prepared an alphabetical list of horses and placed beside the name of each horse the number of the charge relating to the horse, numbering being by quoting the number of the Court Attendance Notice, the 11 Court Attendance Notices each being numbered 1 to 11. That was given to the applicant on 8 April 2013 as can be seen on p 39, line 46 of the transcript of that day. In the respondent's case evidence was given by RSPCA Inspector Gillian Bushby, the prosecutor, by a number of veterinarians, a number of whom arrogated to themselves impermissibly the title of Doctor, but only had bachelor degrees or masters degrees, no doubt believing that they ought to be in the same category as medical practitioners, a pretension often affected by dentists these days but which pretensions are to be decried. If we follow that path all legal practitioners will want to describe themselves as doctors. Evidence was also given by an equine nutritionist and by RSPCA Inspector Deborah Roden whom the applicant did not cross-examine.
The applicant gave evidence as did Mr Stephen Alex McClintock a veterinarian and evidence was also adduced from a number of lay witnesses, Mr Arron Culicam, Mr Glen Moore, Ms Melissa Plunkett, Ms Amanda McCauley, Mr Daryl New and Mr Jeffrey Rapley. As I earlier mentioned the applicant closed the defence case on 16 April 2013, the close of that case being shown on p 87, line 36 of the transcript of that day.
There is no suggestion that the applicant was in any way disadvantaged in either cross-examining the prosecution witnesses or in calling evidence in her own case. For example the applicant commenced to cross-examine the first witness for the prosecution, Inspector Bushby on p 4 of the transcript of 9 April 2013 and evidence in re-examination only commenced at p 64 of the transcript on that day. Therefore one can see that there was a lengthy cross-examination of Inspector Bushby. The next witness was a veterinarian Ms Sarah Ann Matthews. Her cross-examination commenced at p 72 of the transcript of 9 April 2013 and the witness withdrew at the end of that day at p 90 of the transcript. The next witness called was another veterinarian Kristi Julia Goldman and her cross-examination commenced at p 19 of the transcript of 10 April 2013 and her re-examination commenced on p 55 of the transcript that day. In other words she gave lengthy evidence in cross-examination. The next witness in the prosecution case was Ms Penelope Jane Trevor Jones the equine nutritionist. The cross-examination of her commenced on p 66 of the transcript of the 10 April 2013 and re-examination was short and commenced on p 79 of the transcript of that day. The next witness was an expert veterinarian Dr Elizabeth Tee and her cross-examination commenced on p 84 of the transcript of 10 April 2013 and her re-examination commenced on p 100 of the transcript of that day. The next witness called was Mr McClintock in the defence case. There is nothing in the transcripts at all to suggest that the applicant was in any way inhibited in presenting evidence or cross-examining witnesses. It will also be recalled that in the middle of the case there was a "long weekend" and a three day break including Friday 12 April 2013. I am not persuaded at all that the applicant had insufficient time to consider the evidence.
SIXTH GROUND - FURTHER OBSERVATION
Before turning to the principal ground alleged by the applicant I should add to my observations on what I have referred to as the sixth ground, mental illness, the sworn evidence of Mr Porter that the presentation of the applicant before the magistrate was exactly the same as her presentation before me as the applicant was cross-examining Mr Porter in the witness box. The applicant said otherwise but from the Bar table not the witness box. As I told her I cannot accept what she says from the Bar table as evidence of any fact.
FIFTH (PRINCIPAL) GROUND - FALSE INDUCEMENT BY COUNSEL
The fifth ground of appeal which I distilled from the applicant's written submissions is, as I have mentioned, what I consider to be the principal ground of the application. It is set out in the written submissions in this form:
"Glen Porter, counsel for the prosecution, directly went out of his way to influence and induce me to enter a guilty plea. Attached and marked 'Annexure A' is a statutory declaration made by Melissa Plunkett. In the statutory declaration, Ms Plunkett accused Mr Porter of stating that the seized horses would be returned to me if I pleaded guilty. Furthermore, Ms Plunkett accused Mr Porter of insisting multiple times that she 'needed' to advise me to plead guilty. It is the appellant's submission that Mr Porter acted inappropriately and unethically and knowingly did so, because Ms Plunkett stated towards the end of this conversation that Mr Porter said, 'I shouldn't even be advising you'. It is the appellant's submission, but for Ms Plunkett's advice, I would never have entered a guilty plea. The inducement of having my seized horses returned influenced my decision to plead guilty. This was a misrepresentation by [the] prosecution in order to secure a guilty plea in a case that shouldn't have never proceeded. Based upon the above submissions, it must be found that the plea entered by the appellant was not a free and voluntary confession."
The statutory declaration of Ms Plunkett became exhibit A1. The substance of the document is this:
"I attended Kim Hollingsworth's Court case in April 2013 every day. On the last day, the magistrate said some words and the case was adjourned. Kim was frantic and disorientated.
She said:
'What is he saying? But I'm not guilty'.
Glen Porter, the RSPCA barrister, approached Kim and he said, 'You talk to her' to me. Kim was talking to Glen More and Jennifer Marshall.
Glen Porter, the RSPCA barrister, said inside the Courtroom corridor [the aisle] to me (or words to the effect):
Glen Porter: 'You need to advise Kim that it's in her best interest to change her plea. Basically the magistrate has, in not so many words, found her guilty beyond reasonable doubt and he's doing her a huge favour by allowing her to change her plea this late in [the] hearing. It's not that we believe she is guilty, but there was [sic] extenuating circumstances that led to the seizure of the horses. And we're just trying to help Kim - and the outcome will be better if she changes her plea."
I said:
'If Kim changes her plea, what will happen to the horses, will you keep them, or will they be returned to Kim? Because the horses are her main concern and she won't change her plea unless they are going to be returned.'
Glen Porter said:
'They will be returned to Kim'.
I said:
'Even if she pleads guilty?'
Glen Porter said:
'They had always planned to return them to her, but she needs your help to advise her'.
I said this before:
'Kim has always maintained her innocence. Her main concern has always been to get her horses back. I then spoke to Kim outside the Courtroom on the chairs down to the right and something.
After the change of plea, Glen Porter then motioned me with his hand and I stepped outside with him. During our conversation he said words to the effect:
Glen Porter - 'Kim seems to listen to you and you seem to be knowledgeable and have your head firmly on your shoulders. You need to help her.'
He then outlined steps Kim needs to take legally. Towards the end of the conversation, Glen Porter said, 'I shouldn't even be advising you'."
Ms Plunkett made it clear that the conversation between her and Mr Porter was not overheard by the applicant. She then went outside and advised the applicant that her horses would be returned to her if she pleaded guilty. Either before or after that advice by Ms Plunkett the applicant approached the duty barrister, Mr Phillip Wallis and took advice from him. She then returned to the court and I have already quoted what happened in court when the applicant told the Magistrate that she wished to enter pleas of guilty to the 11 charges that had been brought against her.
There are a number of difficulties with this scenario as painted by Ms Plunkett. The first is that she did not tell the applicant that Mr Porter had told Ms Plunkett that if the applicant pleaded guilty the horses would be returned to her. Ms Plunkett's evidence is that she merely advised the applicant that if she pleaded guilty the horses would be returned to her. Her evidence is that she did not tell the applicant what Mr Porter allegedly told her until some three weeks later, that is after the entry of pleas of guilty but before the sentencing hearing, at a time when Ms Plunkett was explaining to the applicant what she needed to do about obtaining a Pre-Sentence Report from the then Probation and Parole Service.
The other difficulty for the current applicant is that she took advice from the duty barrister of which she told the magistrate and she has not complained that the advice given to her by the duty barrister was erroneous or that she did not rely upon it. At one stage the respondent was concerned that the applicant may try to support her case to have her pleas reversed by alleging that the advice given to her by the duty barrister was erroneous. Paragraph 48 to 50 of Mr Porter's affidavit are these:
"48. On 29 January 2014 prior to this matter being mentioned before the Registrar, outside the Court, I said words to the following to Ms Hollingsworth, in the presence of Mr Clachers, 'If you are going to suggest that you received improper advice from the duty barrister when you entered your guilty plea, would you be prepared to authorise the prosecution to speak to the barrister so as he can present an affidavit or some type of evidence about the matter to the Court?' She said, 'What does that mean?' I said words to the effect of 'What occurred between you and he [sic] is legally privileged but if you say he gave you wrong advice the prosecution would seek to obtain evidence from him. But to do that you would need to waive privilege. I suggest you get some legal advice as to what that means. Can you do that and advise Mr Clachers?' She said words to the effect of, 'I will see if I have time, this is all about the Facebook group, they're responsible for all this.' The applicant was then handed a document as to the waiver of privilege. I cannot recall if I or Mr Clachers handed it her.
49. Upon mentioning the matter in Court I repeated this conversation to the Registrar with a request that the applicant notify the prosecution if she would waive privilege.
50. I have been told by Mr Clachers that as of this date [9 May 2014] she has not provided anything further in this regard."
Annexure J1 to Mr Porter's affidavit is a document headed 'Waiver of Privilege' and was prepared to be executed by the applicant and explicitly waived legal professional and client professional privilege on advice given to her or matters discussed in confidence with Mr Philip Wallis, barrister, on 17 April 2013 and authorised Mr Wallis to disclose such advice to the RSPCA NSW or its lawyers. However, the privilege was never waived but it is not part of the applicant's case that the advice given to her by Mr Wallis was erroneous.
The real matter of contention is whether any of what Melissa Plunkett said was said to her by Mr Porter was actually said. Paragraph 32 of Mr Porter's affidavit is this:
"The contents of this document [Melissa Plunkett's statutory declaration] insofar as they attribute any words to me are denied and are mistakes and/or fabrications. This document appears to have been written by the applicant. I say that on the basis of comparing it with annexure A and B."
The statutory declaration was in fact written by the applicant who took it as dictation from Melissa Plunkett, Melissa Plunkett being unable to write because of cat bite affecting her thumb. Initially Melissa Plunkett said she had written the document herself but resiled from that in cross-examination. However, that is of no moment; it may have only been an inadvertent slip. She clearly adopted it by signing the document. Mr Porter's affidavit continues thus:
"33. Plunkett was as witness for the applicant. Information was provided to me during the course of this matter but Plunkett had prior adverse dealings with the RSPCA in respect to animals and in addition, the applicant had provided Mr Clachers with a draft statement that Plunkett had prepared and which accused the RSPCA generally as targeting her and harassing her. [This was annexure H to Mr Porter's affidavit and became exhibit A5 before me]
34. In addition, I had also been briefed by Mr Clachers with copies of complaints concerning matters of animal cruelty made in respect of Plunkett. [Annexure I to Mr Porter's affidavit]
35. On these bases alone it is fanciful to suggest that I would have even contemplated having such a conversation with Plunkett. In addition, to further illustrate the ridiculous nature of this claim,
(a) Plunkett was in the company of, on this particular day at least, a person named Jenni Marshall whom I had prosecuted previously in the Local Court for offences relating to breaches of the Act in relation to horses. Those matters were proved beyond reasonable doubt. (I do not deny that at times during the course of the proceedings Plunkett may have been present or overheard conversations between myself and Mr Clachers with the applicant at various locations both inside and outside the courtroom. Furthermore, Plunkett may also have overheard an exchange between Marshall and myself whereby Marshall advised me that she had complained about her Honour, Magistrate Stapleton, and various staff at Hornsby Local Court who heard the matter in which she was prosecuted and found guilty).
(b) Plunkett was a self -styled 'animal rescuer' who was quite irrational in her attitude towards the RSPCA. A couple of times during the course of the hearing, possibly even on the final day, she had approached me outside and possibly inside the Court and spoke with me about the 'philosophy' of rescuers and, essentially, how they, rescuers including the applicant, 'knew better'.
(c) Plunkett was a participant in a face book campaign dedicated to protesting at the RSPCA in regards to the seizure of the applicant's horses so that they would not be 'killed' or 'murdered' by the RSPCA. She on an occasion mentioned that the Animal Welfare League had a 'no kill' policy. There is no policy to euthanize any animal at the RSPCA except on proper veterinary and behavioural grounds and advice. I can say this on the basis of having previously obtained these instructions both from the Chief Inspector and the Chief Executive Officer both directly and via the General Counsel in other matters where animals have been seized pursuant to s 24J of the Act. This was a matter I had stated on the record in previous proceedings involving other defendants. This fact was conveyed to Plunkett at one time. Plunkett was consistent in her statements to me and Mr Clachers on occasions saying words to the effect 'The applicant has done nothing wrong and should be given her horses back.' The 'face book hate group' are responsible for all of this".
Mr Porter has been practising as a barrister in this State for almost 11 years. In the past he served for 16 years as a member of the NSW Police. He only takes instructions in the criminal jurisdiction. He is currently on the prosecution panels of both the Office of the Director of Public Prosecutions, RSPCA NSW, NSW Food Authority and Roads and Maritime Services NSW and Transport NSW. In his affidavit he tells me that he has had extensive experience dealing with self-represented defendants/accused/offenders. He denies the private conversation alleged by Ms Plunkett. I found Ms Plunkett to be an assertive witness but assertive to the point of truculence. I found Mr Porter to be a calm and collected witness who went out of his way to be accommodating and respectful to the applicant. He was also prone to make very proper concessions. The attitude of Ms Plunkett to cross-examination was to fence with counsel. I prefer the evidence of Mr Porter, I have no hesitation accepting it.
Furthermore, the position taken by Ms Plunkett, that is, what she says Mr Porter said, is completely inconsistent with what happened in court as recorded in the transcripts. After the applicant had reversed her pleas the following exchange occurred commencing at p 28 of the transcript of 17 April 2013:
"PORTER: I'm going to say - what - I'm going to suggest something, your Honour. This is not - hasn't been a simple matter, and there's, I think there's a fair bit at stake in relation to animal welfare, and also in respect of the defendant. As I discussed this with her this morning to forewarn her of what I was going to be suggesting to your Honour, and it is this: I've got a couple of submissions, so if I could just - if your Honour could just bear with me for a minute.
First of all, there is no submission whatsoever that any type of condign punishment should be inflicted on her.
HIS HONOUR: Any?
PORTER: No serious punishment should be inflicted on her. But the prosecution is of the view that a presentence report should be obtained for this reason. I understand there's been some mental health issues, with, I think she mentioned post traumatic stress...
ACCUSED: That was with the New South Wales Police.
PORTER: and she's mentioned depression and I submit that Probation might be able to provide her with some assistance in that regard. The second part of my submission is this, your Honour.
HIS HONOUR: Yes.
PORTER: (1) There's horses still in the custody of the RSPCA. (2) She's still in possession of a large number of horses. What I said to her, is this: "Is that what the prosecution would like to do is to have a joint report prepared by Dr Goldman in connection with Dr McClintock so that the Court can properly be appraised of how many animals she can reasonably be expected to care for. Because, ultimately, when your Honour deals with this, the prosecution is going to be making a submission along those lines that it shouldn't just be, she can have as many as she wants. Because we're going to end up back where we were.
So the prosecution says that the Court should be properly appraised by both her own vet, who has knowledge of her own practices, who has been to her properties, in conjunction with Dr Goldman. And also having regard to the reports of Dr Trevor-Jones as well. It may very well be that the pasture has improved since then but that's something that can be addressed. But, because ultimately, the prosecution will be submitting that there should be a limit and there's orders that the Court can make pursuant to s31 of the Act, your Honour, which I will ultimately asking your Honour to do. But, I'll just be arbitrarily picking a number out of the air without any real regard for what's reasonable or what's unreasonable. So that's the second part.
HIS HONOUR: Yes.
PORTER: And also, that would then impact on what happens with the 11 horses that remain in the custody of the RSPCA as to ultimately what's to become of those animals as well. So that's what I'm suggesting, your Honour, that..."
His Honour then interrupted and commenced a conversation with the applicant as to her father's involvement. Her father had previously owned thoroughbred race horses.
Background can be found in exhibit 6 in the Local Court, a report of Dr Trevor-Jones. On p 5 she sets out a table and said this:
"Based on the above table the stocking rate should be no more than one horse per 6.25 hectares. On the day of inspection more than 30 horses were either inspected or observed giving a stocking rate of one horse per 2.7 hectares."
That was in respect of the property at Mulgoa. The property at Wilton, as I have mentioned, is only 5 hectares and at the time that it was inspected by Dr Trevor-Jones it carried 26 horses and if the same ratio applied to that property there ought only to have been one. All told at some time the applicant had a herd of approximately 100 horses of which 11 had been seized by the RSPCA. One of those horses gave birth to a foal whilst in the custody of the RSPCA. Eventually, at the end of the sentencing hearing the learned magistrate made an order under s 31 for the disposal of all horses over and above the number of 20. One can see, therefore, the significance of the prosecution to the applicant and the unlikelihood, given of what actually occurred, that the horses that had been seized would be returned to her.
Mr Porter placed on the record of the court that there would be some order sought limiting the number of horses that she would be able to keep and which would directly affect what had happened to the 11 horses that had been seized by the RSPCA. At no stage on that day or on the day of sentencing, 29 July 2013, did the applicant protest that she had been induced to plead guilty because of a promise made by Mr Porter or an inducement made by Mr Porter to Ms Plunkett that had been communicated by Ms Plunkett to the applicant between 17 April 2013 and 29 July 2013.
In his affidavit Mr Porter went on to say this:
"42. In relation to the suggestion by both Plunkett and the applicant that there was any suggestion or subtle hint, even remotely, that there was any offer to return any horses in the custody of the RSPCA is ludicrous and a fabrication. Firstly I was aware that a further six horses had been seized from the applicant and were the subject of fresh criminal proceedings. Secondly, I had no instructions and hence no authority to offer to return any horses to the applicant. Thirdly, the expert evidence in the hearing, especially from Dr Trevor-Jones and the applicant's own expert, Dr McClintock, was decisive that the applicant had too many horses.
43. To further exemplify the absurdity of the proposition that there was any offer to return any horses in the custody of the RSPCA, I was aware that as of the last day of hearing the RSPCA had incurred veterinary, boarding, transportation and feeding costs for the seized animals of an amount approaching $100,000. For Plunkett to say that I said, 'They had always planned to return them to her, that she needs your help to advise her' is firstly a fabrication and secondly nonsensical in its content. For Plunkett to further say that I said to her, 'Kim needs to listen to you and you seem to be knowledgeable and have your head firmly on your shoulders' is even more so.
44. The applicant had approached Mr Clachers and myself outside Court on the morning of 17 April 2013 before the Magistrate came on the bench. She said words to the effect of, 'If I get found guilty what will happen to my horses that you have [that] I want them back?' I said words to the effect of, 'Our position is that if you are found guilty we will ask for an adjournment and we will be seeking some expert evidence as to your ability to care for any horses because there's just too many. I've got no idea how many you could have, it might be 30 it might be less. Dr Goldman will do it for us and McClintock can be involved if you like'. (Mr Clachers and I had already discussed and considered this issue, so convinced was I that the prosecution had proved its case beyond reasonable doubt)."
Mr Porter then went on in his affidavit to refer to what is shown in the transcript which I have already quoted.
In par 45 of his affidavit, Mr Porter said this:
"To further illustrate the fanciful nature of the suggestion that I would be a party to simply returning the applicant's horses is that I sought that the 11 horses in the custody of the RSPCA, and subject to the Court attendance notices in the matters before the Court, be actually forfeited to the RSPCA pursuant to s 31 subsection (4) of the Act. These proceedings were dealt with in the Campbelltown Local Court on 29 October 2012 and 27 November 2012, when they were adjourned together with the substantive proceedings to the Downing Centre Local Court."
In other words, the prosecution had already sought forfeiture orders and the applicant must herself have been aware that that was the position of the prosecution.
So compelling was the evidence of Mr Porter that the applicant herself adopted in submissions an alternative view that she may have been misled by the advice given to her by Ms Plunkett on 17 April 2013, it not being then disclosed to her that the alleged source of the suggestion that her horses would be returned to her was Mr Porter. The problem with that is that it is not the subject of the written submissions, nor is there any evidence from the applicant to support it and it faces the final difficulty that the applicant sought advice about pleading guilty from the duty barrister, obtained it and has not said that the advice given to her was erroneous. One would have expected a lay person to be more reliant upon the advice of a duty barrister than a fellow horse enthusiast with no qualifications in law.
I therefore cannot accede to the proposition that Mr Porter acted unethically or improperly or that there was any inducement given to the applicant to enter a plea of guilty or any misrepresentation by any person on behalf of the prosecution. Everything in my view points to the fact that the prosecution case was very strong. In essence the applicant's expert, Mr McClintock had agreed with the evidence of the veterinarians called by the prosecution. The written submissions prepared by Mr Porter were a succinct and almost overwhelming summary of that evidence, and faced with the inevitable, the applicant decided to change her pleas in order to get a better result when the matter came to sentencing. After all, there was the prospect of there being a s 10 dismissal in which case certain orders that were sought by the prosecution and eventually made could not be made because making the orders was dependent on there being a conviction recorded.
APPLICATION REFUSED
It is of no moment as a matter of law that the applicant may still perceive herself as being not guilty. She pleaded guilty to seek a better outcome for herself, if possible, namely a s 10 dismissal, when, to use biblical terminology that has passed into common parlance, "the writing was on the wall". The application made by the applicant for leave to withdraw her pleas of guilty is accordingly refused.
Do you wish to proceed with the appeals against the sentences passed, Ms Hollingsworth?
APPLICANT: Yes.
HIS HONOUR: What do you want to say?
APPLICANT: What do I want to say?
HIS HONOUR: Yes. Why are the penalties too severe?
APPLICANT: Because I want my horses back.
[FURTHER DISCUSSIONS AS TO THE NATURE OF A SEVERITY APPEAL]
HIS HONOUR: The formal order is the severity appeal is set down for hearing on Friday 20 June 2014. You will need to find out whether we are sitting at Darlinghurst or in the Downing Centre.
ADJOURNED TO FRIDAY 20 JUNE 2014
Decision last updated: 18 July 2014
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