Lawson v Clarke - [2024] WASC 459

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LAWSON -v- CLARKE [2024] WASC 459
CORAM:   ARCHER J
HEARD:   27 NOVEMBER 2024
DELIVERED          :   9 DECEMBER 2024
FILE NO/S:   SJA 1058 of 2024
BETWEEN:   SHAUN PHILLIP LAWSON
Appellant
AND
LACHLAN CLARKE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L KEANE
File Number            :   RO 1137/24

Catchwords:

Appeal against conviction following plea of guilty - Accused pleaded guilty because he believed that the sentence would be concurrent - Real question of guilt - Miscarriage of justice

Legislation:

Nil

Result:

Appeal against conviction allowed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T Wilker

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

C v WA Police [2024] WASC 79
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Shepherd v The State of Western Australia [No 2] [2023] WASCA 159
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Tsang v Francis [2021] WASCA 131

ARCHER J:

Introduction

The appellant Mr Lawson was charged with six offences alleged to have been committed on 11 February 2024. On 5 August 2024, Mr Lawson pleaded guilty to five of those charges and the sixth charge was withdrawn.
The learned magistrate imposed a global fine in relation to four of the charges. She imposed a term of imprisonment of 4 months in relation to the fifth charge, a charge of driving while under suspension. She ordered that that term of imprisonment be cumulative on the term that he was then serving. She ordered that Mr Lawson be eligible for parole.
Mr Lawson was represented in the Magistrates Court proceedings. He is now unrepresented. He seeks leave to appeal against his conviction on the charge of driving under suspension and against the sentence. He claims that he had entered into a plea deal, and was told by his lawyer that, if he pleaded guilty, any sentence of imprisonment would be made concurrent with the sentence he was then serving. He claims that, had he known that the sentence would be made cumulative, he would not have pleaded guilty. Mr Lawson further asserts he had a defence to the charge because he drove in a situation of emergency. He says that he was a passenger in a car when the driver suffered a serious medical event. He says he took over the driving and drove to a service station and ensured that an ambulance was called.
For the reasons that follow, I would allow the appeal against conviction. As will be seen, this is not due to any error by the learned magistrate.
Mr Lawson also seeks leave to appeal against the sentence. As I would allow the appeal against conviction, it is unnecessary to consider this.
The single issue on his appeal against conviction is: should Mr Lawson be permitted to withdraw his plea of guilty? If the answer is 'yes', the conviction should be set aside and an order made that the case be dealt with again in the Magistrates Court.
The legal principles to be applied to appeals against convictions in the Magistrates Court are well settled.[1]
[1] See Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [41] ‑ [43], [46] ‑ [52].

Should Mr Lawson be permitted to withdraw his plea of guilty?

Grounds of appeal

Mr Lawson's grounds for his conviction appeal are to the following effect:
1.A plea deal was not upheld.
2.He agreed to plead guilty because his lawyer told him that any prison sentence imposed would be concurrent.
3.He had a triable defence of emergency.

Legal framework

Setting aside a conviction after a plea of guilty

The legal principles to be applied to an appeal seeking to quash a conviction made following a plea of guilty are well settled.[2] The principles relevant to this appeal may be summarised as follows.
[2] See Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] ‑ [107] and Shepherdv The State of Western Australia [No 2] [2023] WASCA 159 [90] ‑ [94].
Before an appellate court will set aside a conviction entered after a plea of guilty, the appellant must establish that there has been a miscarriage of justice.[3] The circumstances in which a miscarriage of justice may occur are not closed. However, they include where the guilty plea was obtained by improper inducement, fraud, or intimidation.[4]
[3] Snook [102].
[4] Shepherd [90] ‑ [91].
The appellant bears an onus to show why he or she should be permitted to change a plea. This is not easy to do. There is a strong public interest in the finality of proceedings. For this reason, a court will approach an appeal on this ground with 'caution, bordering on circumspection'.[5]
[5] Snook [103] ‑ [104], Shepherd [92].
Where it is shown there has been a miscarriage of justice, this, and only this,[6] will outweigh the strong public interest in the finality of proceedings.
[6] Snook [102].
In Shepherd, the appellant claimed, among other things, that her lawyer told her that she did not have any real prospect of acquittal at trial, and that she would be sentenced to a suspended term of imprisonment if she pleaded guilty. She argued that the advice amounted to an improper inducement to plead guilty.[7]
[7] Shepherd [91].
The Court of Appeal found that it was open to the appellant's lawyer to assess the case against her as an overwhelming one, and that she was told this. It found, however, that her lawyer did not tell her that she would receive a suspended sentence, or even that that was likely. It further found that she had not pleaded guilty due to a misunderstanding of the likely sentence. The Court also rejected her claims that her lawyer had improperly pressured her. It found that she had voluntarily pleaded guilty to obtain the best possible outcome. It said that the material before the Court did not raise any real question as to her guilt.[8] The Court concluded that she had not established that her plea of guilty was induced, in that it was not made in the exercise of her free will.[9]
[8] Shepherd [110].
[9] Shepherd [111].
It was unnecessary for the Court in Shepherd to determine whether, if she had pleaded guilty because she had been told or believed (incorrectly) that she would receive a suspended sentence, this would inevitably mean that her plea was not made in the exercise of her free will, causing a miscarriage of justice.
In any event, each case will turn on its own facts. The issue will always be whether the appellant has established that a miscarriage of justice occurred.

Adducing evidence in an appeal

Mr Lawson seeks leave to adduce evidence in the appeal. The respondent contends that leave should not be granted as the evidence does not demonstrate that there was a miscarriage of justice.[10] However, the respondent properly concedes that if the evidence is relevant to, and probative of, whether there was a miscarriage of justice, then leave should be granted.[11]
[10] Respondent's Outline of Submissions filed 20 November 2024 (Respondent's Submissions) [18].
[11] ts 74. And see Tsang v Francis [2021] WASCA 131 [90] ‑ [93].
The evidence Mr Lawson sought to adduce was:
1.five statutory declarations made by Mr Lawson on 13 November 2024 (and filed the same day) that outline his version of why he was driving at the time of the alleged offence and what he says his lawyer told him about the plea deal and what his sentence would be;
2.CCTV and police BodyCam footage recording the events at the service station; and
3.a file note written by his lawyer which relates to the alleged plea deal.
The evidence is relevant to what Mr Lawson was told by his lawyer, why he pleaded guilty, and the events at the service station. Given Mr Lawson's grounds of appeal, the evidence is probative of whether there was a miscarriage of justice. I would give leave to adduce this evidence.

Why did Mr Lawson plead guilty?

The evidence

The evidence establishes that the lawyer acting for Mr Lawson in the Magistrates Court negotiated a deal with the police. The deal was that a weapons charge would be dropped if Mr Lawson pleaded guilty to the other charges. Further, the police would not oppose any prison sentence being made concurrent with the term of imprisonment Mr Lawson was then serving. This much is not controversial.
However, in ground 5 of his appeal grounds, Mr Lawson goes further. He claims that his lawyer told him that any sentence imposed would be made concurrent with the term he was then serving. He asserts he agreed to plead guilty for that reason.[12]
[12] Appellant's minute of proposed amended grounds of appeal filed 22 October 2024 (Appellant's Grounds) [5].
On 16 October 2024, Mr Lawson filed, among other things, a document styled as an affidavit. The affidavit was accepted by her Honour Justice Strk in a directions hearing as representing his written submissions.[13]
[13] ts 34 ‑ 35.
In that document, Mr Lawson asserted:[14]
The Appellant signed the plea deal after [being] given instructions and advice that any sentence (if any) would run concurrent, and had the Appellant been made aware that there was any possibility of further imprisonment he would not have signed the plea deal, maintained his initial not guilty pleas and taken the matters to trial, as it was already in the pipeline. The court date was brought up early, as part of the deal, in order to finalise the matter.
[14] Document styled as an affidavit page 2 [5].
One of Mr Lawson's statutory declarations refers to the alleged plea deal and what he claimed to have been told by his lawyer. In particular, he declared:[15]
The appellant was advised, via face to face visit, that the deal was 'Plead guilty to everything else', 'they will drop the other charge', sentence will run 'concurrent' ^S88 to the current term of imprisonment and 'police won't oppose'.
[15] See the Statutory Declaration that begins 'The Appellant was advised …' and which is page 3 of the bundle of documents filed 13 November 2024. Some formatting and punctuation have been changed.
The notation 'S88' appears to be a reference to s 88 of the Sentencing Act 1995 (WA). Section 88 relevantly provides that an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving, unless the court orders otherwise.
In other statutory declarations, he refers to the alleged plea deal as the 'faulty plea deal'. He declared that he had changed his plea from 'not guilty' to 'guilty' because he was induced to do so by the 'faulty plea deal'.[16] In other words, his evidence is that he pleaded guilty because he was told and believed that any prison sentence would be concurrent.[17]
[16] See the Statutory Declaration that begins 'On 11^th February 2024 …' and which is page 1 of the bundle of documents filed 13 November 2024. See also the Statutory Declaration that begins 'The application to adduce evidence …' and which is page 5 of the bundle of documents filed 13 November 2024.
[17] See also his grounds of appeal and written submissions.
Prior to the hearing of the appeal, the respondent's solicitors were asked if they wished to cross‑examine Mr Lawson. They advised they did not.[18]
[18] Email from State Solicitor's Office to the Court on 25 November 2024.
The file note written by Mr Lawson's lawyer[19] appears to record that it was made in a visit to Mr Lawson in prison on 29 July 2024. The note relevantly says:
Withdrawal of weapons charge. Plead guilty to remaining four. Dealt with by fines or prison. If prison, argue for concurrent with current sentence - totality principle [illegible] same [illegible] of offending. Police won't oppose.
[19] Annexure to Affidavit of Mr Lawson filed 3 October 2024.
The respondent asserts that the file note does not support Mr Lawson's claim that he was induced to plead guilty on the basis that he would receive a concurrent sentence. The respondent says that, '[t]o the contrary, the File Note provides positive evidence that the Appellant was informed that the matter may be dealt with by fines "or prison" '.[20]
[20] Respondent's Submissions [28].
Mr Lawson's lawyer was not called, by either side, to give evidence as to what the illegible portion was or to explain what the note meant. More importantly, Mr Lawson's lawyer was not called to address Mr Lawson's claim that he was advised that any prison sentence would be concurrent. No evidence was adduced to explain why the lawyer was not called.[21]
[21] Plainly, by his allegations in the appeal, Mr Lawson had waived legal professional privilege.
The transcript of the sentencing hearing supports that, at the very least, Mr Lawson believed that the sentence would be concurrent, and believed that this had been agreed by the magistrate and the prosecution. After hearing submissions from both sides, the learned magistrate commenced her sentencing remarks. This is what occurred:[22]
[22] Transcript of the sentencing in the Magistrates Court on 5 August 2024 (Sentencing Transcript) pages 9 ‑ 10.
HER HONOUR: All right. So, Mr Lawson, your driving record is appalling. Six driving while suspended matters just from last year. Then at the end of January, 31 January, in the Mandurah Manager of Magistrates Court, you're told you're given a suspended sentence, including for driving while suspended. And then less than two weeks later you're driving again. That's extra time. That is most definitely extra time.
ACCUSED: Concurrent, Ma'am? It will be concurrent?
HER HONOUR: I take into account you've pleaded guilty.
ACCUSED: It will be concurrent?
HER HONOUR: No. It's extra added on top.
ACCUSED: Right (indistinct)
HER HONOUR: It's appalling.
ACCUSED: Can I say something?
HER HONOUR: No. I will take into account that you spent two months in custody, I will take into account the plea of guilty. And on the other matters, or the pleas of guilty - - -
ACCUSED: That wasn't the deal, Ma'am. You made a deal with the prosecution (indistinct) liability. Like, because - - -
HER HONOUR: Mute, please. So on all of the other charges to which there were pleas of guilty, there will be a global fine. So that's on the four charges. Possession of the plates, possession of the methylamphetamine, driving with false plates, unlicensed vehicle. There's a global fine of $1000 and costs of $141.50. There's an order for destruction of the methylamphetamine, order for forfeiture of the plates. And then in relation to the driving while suspended, the record being appalling in only the last 12, 18 months.
This is the seventh in less than 18 months. So with that in mind, there's a term of imprisonment, taking into account the two months in custody, of four months imprisonment. So that's taking into account the time in custody, as well as the plea of guilty. There's really nothing else in Mr Lawson's favour. That's four months cumulative on the term that he is currently serving. And he is made eligible for parole. That completes this matter. Thank you.
Before discussing the evidence, I record that Mr Lawson's lawyer has not had the opportunity to comment on Mr Lawson's allegations. My conclusions are based solely on the evidence the parties elected to adduce and the respondent's election not to cross‑examine Mr Lawson. They are made solely for the purpose of determining Mr Lawson's appeal on the evidence before me and do not represent any adverse findings against his lawyer.

Factual findings

The respondent asserts that, while the file note records that Mr Lawson's lawyer proposed to argue for a concurrent sentence and the police would not oppose that, 'there is simply no evidence of any type of statement or promise that the result of these submissions would guarantee the imposition of a concurrent sentence'.[23]
[23] Respondent's Submissions [29].
I do not accept this. In his statutory declaration, Mr Lawson said that he was told the 'sentence will run "concurrent" to the current term of imprisonment'. This is evidence.
The respondent further submits:[24]
The statements that the Appellant was induced to plead guilty by the promise of a concurrent sentence is inconsistent with the contemporaneous documentary evidence. Given the documentary evidence was recorded by the Appellant's counsel, an objective party with a duty to the court and his client, this evidence should be preferred.
[24] Respondent's Submissions [31].
I do not accept this submission.
First, and most importantly, the respondent declined the opportunity to cross‑examine Mr Lawson. As a result, the evidence in his statutory declarations is unchallenged.
Second, the respondent asks, in effect, that I prefer the evidence of Mr Lawson's lawyer because he is an objective party with a duty to the court and his client. However, that 'evidence' is limited to a file note. Mr Lawson's lawyer was not called to give evidence.
I accept that a lawyer reading the file note as a whole (and ignoring the illegible portions) would likely interpret the file note as recording that Mr Lawson's lawyer would submit to the magistrate that any prison term should be made concurrent, and the police would not submit that it should be cumulative. However, the phrase 'sentence will run concurrent' does not fit with that interpretation. In the absence of an explanation from Mr Lawson's lawyer, I do not consider that the file note is sufficient to require me to reject the unchallenged evidence of Mr Lawson.
The respondent also submits:[25]
The statements that the Appellant was induced to plead guilty … [are] inconsistent with the substance of the Appellant's own statutory declaration, which refers to s 88 of the Sentencing Act 1995 (WA) and notes that 'Police won't oppose', with the necessary implication that Police were unable to agree to the concurrency of the sentence and that it was ultimately a matter for the Court. That is, the statutory declaration accurately records the substance of the plea deal.
[25] Respondent's Submissions [31].
I accept that Mr Lawson's statutory declaration did appear to place importance on the fact that the police would not oppose a concurrent sentence. Had the statutory declaration been written by a lawyer, it might have been thought that the statement that he was told the 'sentence will run concurrent' was a typographical error. I also accept that Mr Lawson is familiar with the criminal justice process, and has experience with pleading guilty and being sentenced. However, it was plainly not a typographical error. It reflected what he had asserted in his ground of appeal and written submissions.
I do not accept that it can be inferred from the statutory declaration that Mr Lawson understood that the sentencing outcome was ultimately a matter for the court. His outburst to the magistrate is inconsistent with that. In addressing the magistrate, he said 'You made a deal with the prosecution'.[26] Further, and in any event, he has declared in a statutory declaration that he was told the sentence would be concurrent, and the respondent did not seek to cross‑examine him.
[26] Sentencing Transcript page 10.

In my view, the evidence adduced in this appeal establishes that Mr Lawson believed that, if he pleaded guilty, the sentence would be concurrent.
I accept that, as a matter of commonsense, a claim to have been told by a lawyer that a particular sentencing outcome would follow a plea of guilty would be viewed with a great deal of scepticism.
I further accept that, in his statutory declaration, Mr Lawson did not identify the precise words spoken to him by his lawyer or detail the surrounding circumstances.
However, I accept Mr Lawson's evidence for the following reasons.
1.First, Mr Lawson has declared in a statutory declaration that that is what he was told. The respondent did not seek to cross‑examine him.
2.Second, his immediate outburst on being told the sentence would be cumulative supports his evidence. His evidence that he understood that the sentence would be concurrent is plainly not a recent invention. Given his outburst, I do not consider his evidence to be implausible.
3.Third, Mr Lawson's lawyer was not called to contradict Mr Lawson's evidence, and there is no evidence that he was unable to be called.

The evidence also establishes that Mr Lawson changed his 'not guilty' plea to a 'guilty' plea because he believed that the sentence would be concurrent.
1.First, Mr Lawson declared in a statutory declaration, in effect, that he changed his plea because he was told that the sentence would be concurrent. The respondent did not seek to cross‑examine him.
2.Second, his immediate outburst on being told the sentence would be cumulative shows the importance to him of the sentence being made concurrent.
3.Third, on 14 June 2024, Mr Lawson pleaded not guilty to the charges and a trial date in September 2024 was set. The file note appears to have been made on 29 July 2024. The sentencing transcript (of 5 August 2024) indicates that Mr Lawson's lawyer applied to have the matter called on early so that the pleas of guilty could be entered.[27] This sequence of events supports his evidence as to why he changed his plea.
[27] Sentencing Transcript page 2.
This is not a case of an accused pleading guilty because he hoped that a particular outcome might follow. On the evidence before me, this is a case of an accused pleading guilty because he was certain that a particular outcome would follow.

Did Mr Lawson have a defence?

I further consider that Mr Lawson may have had a defence of emergency available to him.[28]
[28] As to which, see C v WA Police [2024] WASC 79 (Tottle J) [29] ‑ [44].
The objective evidence from the CCTV and police BodyCam footage shows the following.
1.Mr Lawson drove the car into the service station and parked it right next to the shop. He was in the driver's seat and there was a woman in the passenger seat.
2.He spoke to the woman for a short time before getting out and leaving the view of the CCTV. From what followed, it is reasonable to infer that they were discussing her health.
3.When he returned to the car, he paced around, speaking to the woman on several occasions. He was plainly agitated.
4.The woman appeared to become unconscious. He and another person pulled her out of the car.
5.Later, an ambulance arrived and treated the woman. She appeared to be very unwell.
6.Later, police arrived. In the statement of facts read to the magistrate, it was said that the police initially attended the service station for another matter.[29]
7.The police searched the car and spoke to Mr Lawson on several occasions. Mr Lawson's behaviour was erratic. At times, he was calm and polite. At other times, he was abusive and occasionally screaming. He demonstrated significant concern and anxiety about the woman's condition and whether she was getting the care she needed.
8.In one exchange, a police officer asked Mr Lawson how he had gotten to the service station, and Mr Lawson said, 'she drove here'. Another officer asked, 'is that what the cameras are going to show?' and Mr Lawson said 'yeah, why's that?'
9.The woman was taken away in the ambulance.
[29] Sentencing Transcript page 6.
The respondent accepts that the evidence proves that the woman needed medical attention. However, it submits that[30]
the materials filed by the Appellant are insufficient to establish that there was a real possibility the Appellant may have established the subjective and objective elements of the defence of emergency, including because:
(a)The Appellant's evidence that he took control of the vehicle in circumstances where he was previously a passenger is inconsistent with the evidence that the Appellant gave on the day …. [In the BodyCam footage] a police officer asks the Appellant how he got to the location and he responds 'she drove here'. Another police officer asks 'is that what the cameras are going to show' and the Appellant confirms 'yeah, why's that?'.
(b)The Appellant has not adduced any evidence as to how or when he took control of the vehicle.
(c)The Appellant has not adduced any evidence which may demonstrate that he needed to drive to the 7-Eleven. In Axon_Body_3_Video_2024-02-11_1939_X60J11227 from timestamp 28:18, in the context of the Appellant having said that the ambulance was not called quickly enough, a police officer says 'you've got a phone in the car though'. The Appellant responds 'yeah, I didn't know that, I didn't know what was going on'. Accordingly, it appears the Appellant had a phone and could have called an ambulance to a different location.
[30] Respondent's Submissions [42].
I accept that it appears Mr Lawson's statement to the police that the woman 'drove here' was (assuming 'here' meant the service station) demonstrably inaccurate. However, given the obvious emergency and his agitated demeanour at the time, I would infer he was not thinking clearly. Further, even if it was a deliberate lie, it is explicable on the basis that he knew he was not permitted to drive. It is not inconsistent with him deciding to drive when a medical emergency arose.
I accept that Mr Lawson has not adduced any evidence as to how or when he took control of the vehicle. However, he has declared that he had been a passenger in the car, and only took over the driving because of the medical situation. The respondent did not seek to cross‑examine him. As his evidence was not challenged, I accept it. Given the objective evidence, it is not inherently implausible.
Finally, I do not accept that the evidence as to the phone casts doubt on Mr Lawson's version. Mr Lawson told the police that no one would call an ambulance, and he had to 'go off his head' to get someone to call an ambulance. It was in that context that the exchange about the phone occurred. Mr Lawson's response 'yeah, I didn't know that' most likely meant, despite the 'yeah', that he did not know there was a phone in the car. There is no evidence that the phone in the car was his (or otherwise accessible to him) or that it was operative. Nor did the respondent seek to cross‑examine Mr Lawson to, among other things, ask if he knew there was a phone in the car. Further, as I have already noted, I would infer he was not thinking clearly at the time.
In my view, there is a real question about his guilt.

Conclusion

I am satisfied that Mr Lawson believed, from what he was told by his lawyer, that any prison sentence would be concurrent with his existing sentence. I am satisfied that Mr Lawson pleaded guilty for that reason. I am further satisfied that there is a real question about his guilt.
Having made those findings, I am satisfied that a miscarriage of justice occurred.

Sentence appeal

As I have allowed the appeal against conviction, it is unnecessary to consider the sentence appeal.

Conclusion

For these reasons, I would:
1.grant leave to adduce the evidence and leave to appeal;
2.allow the appeal against conviction; and
3.set aside the conviction and sentence and remit the charge to the Magistrates Court to be dealt with.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
9 DECEMBER 2024