Lawson v The State of Western Australia [No 2]
[2019] WASCA 95
•2 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAWSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 95
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 19 JUNE 2019
DELIVERED : 19 JUNE 2019
PUBLISHED : 2 JULY 2019
FILE NO/S: CACR 21 of 2019
BETWEEN: SHAUN PHILLIP LAWSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 213 of 2015
Catchwords:
Criminal law - Appeals - Appeal against conviction following plea of guilty - Whether miscarriage of justice
Legislation:
Nil
Result:
Application for leave to appeal on each ground refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
REASONS OF THE COURT:
The appellant seeks leave to appeal, and an extension of time to appeal, his conviction on a charge of dangerous driving occasioning grievous bodily harm. He was convicted upon his plea of guilty.
On 19 June 2019, we dismissed the application for leave to appeal and the appeal, saying we would publish our reasons later. These are our reasons.
It is convenient to outline the background, before coming to the grounds of appeal.
Background
On 25 November 2015, the appellant pleaded guilty in the Supreme Court to an offence of armed robbery. The appellant was represented by counsel. In the course of counsel's plea in mitigation it emerged that the appellant was also facing approximately 32 summary offences pending in the Magistrates Court.[1] Counsel invited the judge to consider a conditional suspended term of imprisonment.[2] In the course of exchange with counsel, the judge indicated that the presence of a substantial number of pending charges may present an obstacle to the imposition of a conditional suspended term of imprisonment.[3]
[1] ts 8.
[2] ts 8 - 11.
[3] ts 9 - 11.
Following submissions from the State, the judge indicated to the appellant's counsel that the court could adjourn to permit the appellant to consider whether he wished to consider using the procedure in s 32 of the Sentencing Act 1995 (WA) to plead guilty to the summary offences and have them dealt with at the same time as he was sentenced for the offence of armed robbery.[4] The judge emphasised that whether the appellant wished to do so was his choice.[5] Counsel for the appellant took up the judge's invitation.
[4] ts 14 - 17.
[5] ts 15, 17.
In the course of the exchange with the bench, counsel for the appellant indicated that the appellant had instructed him that he wished to change his plea on the count of dangerous driving causing grievous bodily harm to a plea of guilty.[6] The judge observed that that indication was on the transcript for the purposes of s 9AA of the Sentencing Act.[7]
[6] ts 16.
[7] ts 16.
The appellant evidently subsequently decided to invoke s 32 of the Sentencing Act to request the judge to deal with the summary offences.
On 28 January 2016, the matter came back before the sentencing judge. The appellant was again represented by counsel. Counsel confirmed that there was no reason why the appellant could not plead to the s 32 charges.[8] The appellant then proceeded to plead guilty to each of the s 32 charges.[9] In the course of pleading guilty to the offence of dangerous driving occasioning grievous bodily harm, the appellant said as follows:[10]
I have to say I'm guilty. I take responsibility, but I'm - I must say that it was an accident. It was an accident and I'm sorry.
[8] ts 22.
[9] ts 22 - 29.
[10] ts 28.
The judge indicated to the appellant's counsel that this appeared to be a plea of guilty coupled with some material, by implication an expression of remorse, to which counsel would later refer. The appellant's counsel agreed with this.[11]
[11] ts 28.
Before counsel commenced the plea in mitigation, the judge raised some matters creating impediments to completion of the sentencing process on that day. In the course of doing so, the judge indicated that he had received the prosecution brief concerning the offence of dangerous driving occasioning grievous bodily harm.[12] The judge observed that that offence loomed large in terms of the ultimate disposition of the matter.[13] The appellant's counsel confirmed that he had seen the brief on the dangerous driving occasioning grievous bodily harm offence,[14] and that after counsel had examined the witness statements, the appellant had instructed that he would plead guilty to the charge.[15]
[12] ts 29.
[13] ts 29.
[14] ts 29.
[15] ts 30.
The matter was adjourned to a later date.
On 1 March 2016, the appellant appeared before Corboy J for sentencing. At the sentencing hearing, the prosecutor recited the facts of the 33 summary offences to which the appellant had pleaded guilty.[16] Counsel for the appellant did not dispute the facts as read by the prosecutor.[17] In relation to the charge of dangerous driving occasioning grievous bodily harm, the prosecutor recited the following facts:[18]
At about 2.35 pm on Thursday 12 June 2014, the offender drove a Ford Falcon sedan registered number A63590 in a southerly direction in [sic] Indian Ocean Drive in the shire of (indistinct).
Indian Ocean Drive at this location is a rural area. The road is subject to a speed limited [sic] of 110 kilometres per hour and has one lane travelling south and one lane travelling north. The weather on this day was fine and the visibility was good. The alignment or [sic] the road at this section is an s-bend configuration with the lanes separated by double white lines. As the offender entered this section of the road at speed he failed to slow down sufficiently to negotiate the right hand bend and subsequently left the road and drove [onto] the left hand gravel shoulder before losing control and crossing into the north bound lane.
As he travelled into the north bound lane his vehicle collided head on with a car being driven by Ms Wellington who was then driving the car as part of her work; that was travelling in the north bound lane. As a result of the collision, Ms Wellington suffered grievous bodily harm. Now, I've amended the statement of material facts to read that she sustained multiple bone fractures with chest pains, chronic pain and chronic pelvis pain, and non-union of the bones.
Now, I have had the opportunity to speak to Ms Wellington today, your Honour, and she has advised me that as a result of that collision she has thus far had three surgeries in 18 months and has two further surgeries to go. She has an ankle reconstruction; her left humerus requires further work; she is on constant painkillers and has nerve damage. So that's an update on Ms Wellington's injuries.
[16] ts 38 - 47.
[17] ts 47.
[18] ts 44 - 45.
On 1 March 2016, Corboy J placed the appellant on a 12-month pre‑sentence order (PSO). The appellant appeared at PSO review hearings on 29 April 2016, 29 August 2016, 7 October 2016, 8 November 2016 and 20 December 2016.
On 1 March 2016, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years in respect of two of the charges on the notice under s 32 of the Sentencing Act.
At the PSO review hearing on 20 December 2016, the appellant was remanded in custody for the preparation of a further report, having been remanded in custody in relation to other matters on 7 December 2016.
On 2 March 2017, Corboy J sentenced the appellant to a total effective sentence of 4 years 9 months' immediate imprisonment. His Honour ordered that the term of 4 years 9 months commence on 2 March 2017. A parole eligibility order was made.
On 2 March 2017, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years 6 months in respect of the same two charges on which his Honour had imposed the total effective period of disqualification of 3 years on 1 March 2016.
On 31 July 2018, this court upheld the appellant's appeal against sentence in relation to the motor driver's licence disqualification imposed on 2 March 2017. Otherwise, the sentence appeal was dismissed.[19]
[19] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [10], [139].
The appellant subsequently sought to appeal his conviction. On 19 October 2018, this court dismissed the appellant's application for leave to appeal against his conviction on the charge of armed robbery.[20]
[20] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [2].
As already noted, the appellant was legally represented at the hearing at which he pleaded guilty to the offence of armed robbery. He was also legally represented when his counsel made a plea in mitigation on his behalf, when the pre-sentence order was made, when the sentencing judge imposed sentences on 2 March 2017, and in his sentencing appeal. He was not legally represented for his armed robbery conviction appeal. Nor is he legally represented in this appeal.
Grounds of appeal
While the appellant's case, as filed, contains five grounds, the appellant has filed an application by which he proposes to appeal his conviction on the charge of dangerous driving occasioning grievous bodily harm (the Dangerous Driving Charge) on 10 grounds, the first five of which are the existing grounds. We will deal with all 10 grounds. In substance, those grounds are as follows:
(1)At the time the appellant pleaded guilty to the charge, he was in a state of delirium.
(2)The appellant pleaded guilty to the charge because of pressure and intimidation by the authorities.
(3)The driving which occasioned grievous bodily harm was an unwilled act for the purposes of s 23A of the Code. Alternatively, the grievous bodily harm caused to Ms Wellington was an accident for the purposes of s 23B of the Code.
(4)The defence of mistake of fact under s 24 of the Code operates to relieve the appellant of criminal responsibility.
(5)The quality of the road at the time of the accident, including the gravel, was a factor contributing to the cause of the accident.
(6)If the charge had been taken to trial and the appellant found guilty of it, the verdict would have been unreasonable or could not have been supported by the evidence.
(7)In light of fresh evidence, if the charge were taken to trial and the evidence heard by the jury, the jury would either lessen the charge to negligence or acquit the appellant.
(8)If the charge were taken to trial and the appellant found guilty of it, the fact-finder would have made a wrong decision on multiple questions of law.
(9)The appellant should be allowed to change his plea of guilty to the charge to not guilty, having regard to (1) his previous plea of not guilty in the Magistrates Court and (2) the merit of his grounds of appeal.
(10)The sentence of 18 months' immediate imprisonment imposed on the appellant in respect of the charge, as well as the suspension of his driver's licence for 3 years, occasioned a miscarriage of justice.
The appellant commenced his appeal almost 3 years out of time. His application for an extension of time was referred to the hearing of the appeal.[21]
[21] Order of Mazza JA on 16 April 2019.
Appeals against conviction following a plea of guilty: general principles
The principles concerning an appeal against a conviction entered after a plea of guilty are well established. The following principles were outlined in Lawson v The State of Western Australia [No 2]:[22]
[22] Lawson [No 2] [17] - [19].
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner [v The Queen [1995] HCA 41; (1995) 184 CLR 132], a person may plead guilty 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 or she 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 of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred.
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.
(footnotes omitted)
Applications in the appeal
The appellant has filed 16 applications in the appeal, which may be summarised as follows:
(1)An application to adduce additional evidence filed 5 March 2019, comprising an undated letter from Main Roads WA to the appellant 'detailing the safety record of Indian Ocean Drive and the measures that have been taken to make this road safer'.
(2)An application for the appeal to be heard on an expedited basis, filed 5 March 2019.
(3)An application to adduce additional evidence filed 2 April 2019, including: (1) a 'verification of employment 2010'; (2) a factsheet relating to delirium; and (3) a factsheet relating to 'AU 2000 Ford Fairmont safety features'.
(4)An application to adduce additional evidence filed 4 April 2019, including: (1) 'prison participation certificates since 6 December 2016'; (2) two character references; and (3) a letter from the Department of Transport dated 20 March 2017.
(5)An application to adduce additional evidence filed 4 April 2019, including a 'complaint to HADSCO about Frankland Unit'.
(6)An application to adduce additional evidence filed 4 April 2019, comprising a letter from the Office of the Director of Public Prosecutions (the DPP) dated 27 March 2019.
(7)An application to adduce additional evidence filed 4 April 2019, including 'Legal Aid documents + complaint by myself to Legal Aid'.
(8)An application to adduce additional evidence filed 5 April 2019, comprising a letter from the Department of Corrective Services dated 5 April 2019 'confirming I am still waiting for surgery post car accident'.
(9)An application to adduce additional evidence filed 5 April 2019, comprising 'additional information on the facts of psychosis'.
(10)An application to adduce additional evidence filed 11 April 2019, comprising an 'accident impact statement' drafted by the appellant.
(11)An application to 'not be misunderstood with my tone in court', filed 11 April 2019.
(12)An application to adduce additional evidence filed 12 April 2019, comprising 'letters from Legal Aid since 19 March 2019 (my last court date)'.
(13)An application to adduce additional evidence filed 30 April 2019, comprising a 'letter from Legal Aid excluding me from contact'.
(14)An application to adduce additional evidence filed 11 May 2019, comprising '(one of) my financial obligations/debts in the community'.
(15)An application to adduce additional evidence filed 5 June 2019, comprising '8 examples of jobs available requiring Unrestricted C Class valid driver's licence'.
(16)An application to adduce additional evidence filed 5 June 2019, comprising 'evidence of undertaking surgery on 27 May 2019, 5 years after the crash/accident'.
The hearing on 19 June 2019 was directed to the question of whether the appellant should be granted leave to appeal on any or all of his five existing grounds of appeal and five additional proposed grounds of appeal. In determining that question, we took into account all of the appellant's applications, to the extent that they bear, or may bear, upon the merits of any ground or proposed ground. In particular, we took into account all of the proposed additional evidence insofar as it is capable of bearing upon the merits of any ground or proposed ground.
It is convenient to begin by explaining, in broad summary, why the grounds of appeal and proposed grounds of appeal lack any merit.
General observations as to why none of the grounds has merit
The principles outlined at [23] demonstrate that a person who appeals a conviction based on a plea of guilty faces a high hurdle. The challenges faced by the appellant in this case are reinforced when regard is had to the circumstances in which, and period over which, his plea of guilty was foreshadowed, entered and maintained. On 25 November 2015, the appellant's counsel indicated that the appellant intended to plead guilty to the Dangerous Driving Charge.[23] Subsequently, the appellant's solicitors caused a s 32 request to be made for charges including the Dangerous Driving Charge, indicating an ongoing intention on the part of the appellant to plead guilty to that charge. On 28 January 2016, the appellant entered a plea of guilty to the charge. In doing so, he said he took responsibility for the accident and was sorry for it.[24] At the sentencing hearing on 1 March 2016, the appellant's plea of guilty was maintained.
[23] ts 16.
[24] ts 28.
Thus for a period of more than three months, during the whole of which the appellant was legally represented, the appellant acted in a manner indicating, and consistent with, an intention to plead guilty to the Dangerous Driving Charge.
Grounds 1 and 2 seek to rely, respectively, upon the first and third well‑recognised categories of circumstances in which courts have set aside pleas of guilty, as set out in [23] above. However, as explained in more detail below, the appellant has not adduced evidence that is reasonably capable of establishing that he did not understand the nature of the charge or intend to admit guilt, or of establishing that his guilty plea was obtained by improper inducement or intimidation.
Grounds 3, 4 and 5 assert, in effect, that the appellant was not, or may not have been, guilty of the Dangerous Driving Charge. It is clear from the principles set out in [23] above that, even if the appellant were to establish that, in fact, he was not guilty of the offence, that, in itself, would be insufficient to demonstrate a miscarriage of justice arising from his conviction. In any event, as explained below, the appellant has fallen well short of demonstrating that he was not guilty of the offence of dangerous driving occasioning grievous bodily harm.
Grounds 6 - 10 do not impugn the appellant's plea of guilty or the conviction that was recorded following that plea. Rather, these grounds appear to be consequential upon the matters asserted in grounds 1 ‑ 5. The appellant did not advance any submissions specifically relating to grounds 6 ‑ 10. Consequently, nothing more need be said about them.
We turn now to deal individually with grounds 1 ‑ 5 in turn.
Ground 1: delirium when pleading guilty
Ground 1: evidence
The appellant seeks leave to adduce additional evidence in relation to the delirium he says he was experiencing when he pleaded guilty. That additional evidence comprises:
(1)a complaint to the Health and Disability Services Complaints Office (the Complaints Office) concerning the medication he was prescribed while in Graylands Hospital, and the responses he received from the Complaints Office and representatives of Graylands Hospital in relation to that complaint;[25]
(2)a factsheet relating to psychosis obtained from SANE Australia;[26] and
(3)a factsheet relating to delirium obtained from healthdirect Australia.[27]
[25] Application to adduce evidence of complaint to the Complaints Office about Frankland Unit, filed 4 April 2019.
[26] Application to adduce evidence on the facts of psychosis, filed 5 April 2019.
[27] Application to adduce evidence on the facts of delirium, filed 2 April 2019.
By a complaint form signed and dated 29 October 2018, the appellant gave an outline of his complaint to the Complaints Office in the following terms:
I have had a long history with 'Voluntary' Mental Health Services dated back to 2001. 10 years ago, I was a patient at the Alma Street Centre in Fremantle WA. I was a voluntary patient. The doctor prescribed me a medication called (Quetiapine). Another name for this is 'Seraquel'. I suffered an allergic reaction to this medication, whilst a patient at Alma Street. The doctors took me off it. The allergic reaction was described as one of 'Delirium'. I cannot remember what happened. All I remember was waking up in the locked ward of Alma Street. I remember blacking out in front of my visitors, soon after taking the Quetiapine. I was told I was 'in a fit'.
On 14 August 2014, I was taken from Perth Courthouse to the Frankland Centre at Graylands Hospital. On a Court hospital order. I was given that exact same medication (Quetiapine) by the doctor. If I did not take it, I would be treated as 'refusing' medication/treatment, which I did not need because I was hoping to achieve bail. I tried to tell staff that I could not take it. I was allergic to it. I was transferred from there to Hakea Prison. My prescribed medication from Frankland followed me there. It was ordered as part of my bail conditions [that I] was to comply with all orders from Mental Health Services. I still have ringing in my ears and slurred speech. I have been off it now for 2 years.
The appellant then expressed his desired outcomes as follows:
1)I would like a written apology and/or explanation from the Frankland Centre about why they did not check my file history and why they prescribed that medication to me. I could have died. I still am suffering effects from taking it for so long. It was ordered I was to comply with all treatments.
2)I would like to not have to take my claim for Medical Negligence to [the] Courts. I would be open for some sort of Settlement.
By an undated letter, the Complaints Office confirmed receipt of the appellant's complaint and, among other things, advised that a Case Manager would contact him to discuss the next stage of the process.
By a second letter, dated 5 December 2018, the Complaints Office advised the appellant of the following:
Thank you for your complaint to the [Complaints Office], received 7 November 2018, regarding your treatment at Graylands Hospital in August 2014.
I understand from Ms Mphangela Mtonga, the Case Manager who has assessed your complaint, that you have not yet lodged a complaint with Graylands Hospital. [The Complaints Office] generally requires you to raise the matter directly with the service provider in the first instance to allow them the opportunity to respond to the concerns raised in your complaint. In many cases this can lead to the quick resolution of complaints.
I note that Ms Mtonga spoke with you on 30 November 2018 and informed you that [the Complaints Office] would refer your complaint to Graylands Hospital so they could respond to you directly in the first instance. In this regard, I confirm that your complaint has been sent to Graylands Hospital.
Please allow Graylands Hospital up to 30 working days to respond to your complaint. Once you have had the opportunity to consider the response, if your concerns have not been addressed, you are welcome to contact [the Complaints Office] for further assistance.
By letter dated 10 December 2018, a representative of Graylands Hospital informed the appellant that a detailed response to his complaint should be forthcoming by 17 January 2018. That deadline was then extended to 31 January 2018.
By a letter that appears undated in the documents before the court, the 'detailed response' foreshadowed in earlier letters was given to the appellant. The letter appears in the following terms:
Thank you for sharing your health care experience with the Frankland Centre via the [Complaints Office] on the 3 December 2018. It is important that we get feedback about our service, so I appreciate that you took the time and effort to write to us. I would like to sincerely apologise for the delay in providing a response and appreciate your patience in waiting for our letter.
In your feedback you raised a number of concerns:
1.You were given the medication Quetiapine while an inpatient at the Frankland Centre in 2014, despite your medical record indicated [sic] that you were allergic to this medication.
2.You felt that you were unable to refuse treatment which included Quetiapine because you were hoping to get bail.
3.Through your feedback you request an apology, explanation and state that you would be open to a financial settlement.
The Acting Service Manager for the State Forensic Mental Health Service (SFMHS) which includes the Frankland Centre investigated your concerns based on the information provided and a thorough review of your medical records from your admission in 2014.
1.You were given the medication Quetiapine while an inpatient at the Frankland Centre in 2014; despite your medical record indicating that you were allergic to this medication.
Your records state that on 14 August 2014 you were admitted to the Frankland Centre from Perth Magistrates Court. During your admission you were initially treated with Risperidone, Agomelatine, Clonazepam and Haloperidol. The investigation found that on the 29 October 2014 your treating doctor recorded that she had a meeting with you and during the meeting you described feeling anxious, wound up regarding your upcoming court case, you felt monitored and described your mood as low. You asked for more sleeping medication such as Quetiapine as you didn't believe that your current medication (Agomelatine) was helping you. Following this meeting the Agomelatine and Risperidone tablets were stopped and a low dose of Quetiapine (200 mg) was commenced for anxiety management. I acknowledge that your medical records clearly identify that you had an adverse reaction to both Quetiapine and Palperidone in the past however the pharmacist recorded on your medication chart that you were to be monitored for delirium due to your past experience with this medication. You remained on this medication until your discharge to prison on 5 November 2014.
Clinicians may decide to prescribe Quetiapine to aid sleep when benzodiazepines are deemed to be unsuitable, for example in the context of dependence. Your case notes and the medication chart indicate that the potential for adverse reaction is noted however consideration is given to the low dose prescribed (200 mg - maximum dose is 1000 mg) and nursing staff were directed to observe for delirium or other signs of altered mental state. A review of your notes did not identify any concerns from nursing staff regarding symptoms of delirium. On behalf of the service, I would like to apologise for any distress this experience has caused you.
2.You felt that you were unable to refuse treatment which included Quetiapine because you were hoping to get bail.
I am very sorry you felt this way during your stay at the Frankland Centre. The medical team at the Frankland Centre focus on the mental health care and treatment of patients and do not comment on legal matters such as awarding of bail. I understand, from reviewing your records and the court report provided by the medical team to the Magistrate presiding over your charges, that you were accepting and compliant with all treatment offered to you and that you showed sustained improvement in your mental health. The report recommends that you were fit to plead. With your consent it is not unreasonable to retrial medications at low doses where benefits are considered to outweigh risks, particularly in circumstances where an adverse reaction is not an allergic reaction.
3.Through your feedback you request an apology, explanation and state that you would be open to a financial settlement.
On behalf of the SFMHS I would like to express my regret that the health care that was provided to you did not meet your expectations. I apologise for any additional distress this has caused you. As a government health service provider, we cannot offer any legal advice in relation to your eligibility for compensation or offer any monetary settlements. If you would like to pursue a claim of medical negligence you will need to complete a Compensation Application Form.
The factsheets in relation to psychosis and delirium need not be outlined.
The appellant also seeks leave to adduce an 'accident impact statement'.[28] This comprises a letter from the appellant to the court, in which he states, relevantly:
On top of all of this the courts were seeking progress to be made with the charges. If it could be imagine [sic] the stress I was under during this whole period of time. As well as suffering vfrom [sic] delirium because of being prescribed medication I am allergic to following my arrest in August 2014. I am also still suffering effects from this even after being off it now for 2 & a half years.
Ground 1: appellant's submissions
[28] Application to adduce evidence of 'accident impact statement', filed 11 April 2019.
The appellant submits that he was suffering from delirium in the period between his arrest on 14 August 2014 and his sentencing before Corboy J on 2 March 2017.[29] He submits that, for the whole of this period, he was not mentally capable of making his own choices, much less give instructions to his defence counsel, and that he was unable to interact with others due to thought and speech impairment.[30] He further submits that he should not have been placed before the Supreme Court for the offences.[31] As a result of his delirium, he submits he did not understand the nature of the Dangerous Driving Charge and did not intend to plead guilty.[32]
[29] Appellant's ground 1 submissions [2].
[30] Appellant's ground 1 submissions [4] - [5].
[31] Appellant's ground 1 submissions [5].
[32] Appeal ts 17 - 18, 24.
The appellant submits that he was not responsible for his state of delirium because the only reason he was in it was because he was prescribed medication to which he was allergic at the Frankland Centre following his arrest. He says he did what he was told to do and complied with all orders from mental health care staff, both in prison and in the community.[33]
[33] Appellant's ground 1 submissions [7].
The appellant submits that the fact that he did not raise the issue of delirium with his counsel when pleading guilty reinforces that he was suffering from it.[34] He further submits that he can prove that he was suffering from delirium if the court requires it, and says this warrants more weight than what the court has previously applied to it.[35] He relies on the evidence contained in the applications outlined at [33] above.[36] He also asserts that he is currently suing the Frankland Centre.[37]
Ground 1: disposition
[34] Appellant's ground 1 submissions [1].
[35] Appellant's ground 1 submissions [9], [13].
[36] Appellant's ground 1 submissions [12], [14] - [15].
[37] Appellant's ground 1 submissions [10] - [11].
The appellant's claim that he was suffering delirium over a period of more than 2 1/2 years leading up to and encompassing his sentencing hearing is mere assertion. Assertions made in submissions are not evidence. Nor are assertions made in letters of complaint. The appellant's assertions, even if made on oath, are not themselves admissible evidence on a topic of expert medical opinion. The appellant's asserted delirium is not supported by any medical or other expert opinion.
Consequently, there is no evidentiary foundation for the appellant's assertion that he did not understand the nature of the Dangerous Driving Charge and did not intend to plead guilty to it.
For these reasons, ground 1 is without merit.
Ground 2: plea of guilty due to pressure and intimidation by authorities
Ground 2: evidence
The appellant seeks leave to adduce additional evidence in relation to a complaint he made in February 2019 to Legal Aid about the conduct of his defence counsel, Mr Senaratne, in or around the time he pleaded guilty to the Dangerous Driving Charge in the Supreme Court.[38]
[38] Application to adduce evidence of Legal Aid documents and complaint made to Legal Aid, filed 4 April 2019.
By letter dated 15 February 2019, the appellant made a complaint to Legal Aid, which, relevantly, contained the following:
I hade [sic] already pleaded not guilty to the charge of dangerous driving causing GBH
It was set down for a committal mention at a later date
The prosecution asked for some time to gather there [sic] case against me.
Somewhere along the line that did not happen
I was still suffering from delirium during this whole period
[Mr Senaratne] called me to his office on St Georges Terrace to show me some paperwork.
I gather the DPP had contacted him to give these statements to him
I was fooled into changing my plea of not guilty to guilty (original emphasis removed)
The letter also made other complaints, including as to Mr Senaratne's decision to cease acting for the appellant, but those other complaints are not relevant to this appeal.
By letter dated 11 March 2019, an officer of Legal Aid responded to the appellant's complaint. Relevantly, the officer stated:
Having reviewed your files, I note numerous extensive letters of advice from Mr Senaratne and Ms Shepherd outlining advice about your charges to you. As you indicated in your letter, I understand you had a meeting with Mr Senaratne prior to instructing you would plead guilty to the charge of … dangerous driving causing bodily harm. I understand that Mr Senaratne discussed with you the weight of the evidence against you for the charge. That evidence included a reading from a sample of your blood indicating the presence of amphetamine and statements from civilian witnesses regarding your manner of driving. There was also a critical piece of evidence; a statement from an off-duty police officer who witnessed your manner of driving before the accident, measured the speed at which you were driving and attended the scene of the crash. Having considered the evidence against you and Mr Senaratne's advice, you instructed that you would plead guilty and you subsequently entered that plea in court. I therefore cannot accept your suggestion that you were fooled into pleading guilty.
Ground 2: submissions
The appellant submits that, at some point in 2015 after he had pleaded not guilty, he was called by his Legal Aid representative and told to come in and see him in person. The appellant says he was shown a witness statement by a police officer. He says he felt intimidated by the statement and judged by his representative.[39]
[39] Appellant's ground 2 submissions [1] - [5].
The appellant submits that, when he was in Graylands Hospital, a representative of Legal Aid visited him and told him that '[the DPP] are not your friends', at a time when negotiations were taking place between the DPP and his representative.[40]
[40] Appellant's ground 2 submissions [6].
The appellant submits that, at some later point in 2015, he was again called by his Legal Aid representative and told to come in and see him in person. He says he was shown another witness statement. He says he was not advised as to available defences, that he felt he was being judged by the representative, and that he was advised that his grant of aid only covered pleas of guilty. The appellant submits that on that day he was required to sign his consent to change his plea to guilty.[41]
[41] Appellant's ground 2 submissions [7] - [10].
The appellant submits that, when he was arrested on 13 August 2014, the arresting detectives told him that 'one way or the other they would have' him, that he was 'a fraudulent little c..t' and that he was going to get 10 years in prison.[42] He says that the detectives were laughing between themselves at his genuine shock and that it was unnecessary for them to have pulled guns on him.[43]
[42] Appellant's ground 2 submissions [12] - [14].
[43] Appellant's ground 2 submissions [14] - [15].
Consequently, the appellant submits that the reasons he changed his plea to guilty on the Dangerous Driving Charge were: (1) pressure, (2) intimidation by the arresting detectives, (3) a lack of advice by his Legal Aid representative as to available defences and (4) 'to get it all over with', especially given that a plea of guilty might put him on the fast-track system and attract a suspended sentence.[44]
Ground 2: disposition
[44] Appellant's ground 2 submissions [16]; appeal ts 22 - 23.
The appellant has fallen well short of adducing evidence that is capable of supporting a conclusion that his plea of guilty to the Dangerous Driving Charge was induced by intimidation, improper inducement or inappropriate pressure. The assertions made in his submissions do not constitute evidence. The evidence upon which he proposes to rely is the letters summarised in [48] - [50] above. A complaint made in a letter is not evidence of the truth of matters asserted in the letter. In any event, the matters asserted in the appellant's letter fall well short of establishing that his plea of guilty was caused by intimidation such as would sustain a conclusion that there was a miscarriage of justice.
Ground 2 is without merit.
Grounds 3 and 5: unwilled act, accident, and road quality as a contributing factor
It is convenient to deal with grounds 3 and 5 together, as they evidently overlap. Ground 3 asserts defences of unwilled acts or accident, while ground 5 asserts that the quality of the road was a contributing or intervening factor.
Grounds 3 and 5: evidence
The appellant seeks leave to adduce additional evidence as to the state of the road on which the car accident took place.[45] This evidence comprises a letter from Main Roads WA to the appellant, in the following terms:
[45] Application to adduce evidence of a letter from Main Roads WA to the appellant concerning Indian Ocean Drive, filed 5 March 2019.
Thank you for your letter dated 4 January 2019 regarding the history and safety record of Indian Ocean Drive.
…
Between September 2010 and December 2017, 518 crashes were reported along the entire length of Indian Ocean Drive. Of these, the vast majority occurred between Two Rocks and Lancelin, as a result the State Government has recently undertaken measures to improve road safety on this section of the road.
In November 2017, the Ministers for Road Safety and Transport, along with the Acting Road Safety Commissioner, released the Indian Ocean Drive Safety Review. The review examined the section of road between Two Rocks and Lancelin, analysing in detail recorded crashes and crash risk. As a result of the review there are 29 recommendations classified as immediate, mid-term and long-term all focused on reducing road trauma risk.
Immediate improvements (all completed since November 2017):
•Installation of audible edge and centre line markings for the Two Rocks to Lancelin section;
•A temporary reduction in the speed limit to 100 km/hr between Breakwater Drive and KW Road;
•Centre and edge line maintenance to enhance visibility and reflectivity;
•Installation of advanced guide signs at the end of the current passing lanes;
•Installation of new warning signs;
•Replacement of guide signs, where relevant;
•Vegetation clearing to improve sight lines at intersections;
•A design review of the intersections between Two Rocks and Lancelin (ongoing); and
•Design and development of a one-metre wide, centre line treatment (ongoing).
Mid-term improvements include:
•Increasing the width of the seal for the entire length and providing a one metre wide centre line treatment with audio tactile line marking, this treatment will create a greater distance between opposing traffic, providing additional reaction time if a driver unintentionally drifts across the centre line towards oncoming traffic; and
•An assessment and management of roadside hazards within the clear zone of the road.
The State Government recently committed $20 million for the Wide Centre Line Treatment (WCLT) works mentioned above. The first stage of this widening treatment was undertaken as part of the construction of four new passing lanes between Seabird and Lancelin, which was completed in December 2018. Further widening of the road from the south, including WCLT, commenced in February 2019 and is due for completion in 2020/21.
Ground 3: submissions
The appellant submits that the gravel shoulder on the road was an intervening factor which contributed to him losing control of his vehicle. He further submits that whatever hit his car on the s-bend was entirely and completely beyond his control and was not in any way caused by his manner of driving. He submits that the gravel has now been replaced with tarmac by Main Roads WA, due to the number of accidents that have occurred in the exact same location.[46]
[46] Appellant's ground 3 submissions [1] - [2].
The appellant outlines the facts as he recalls them. He says that he had gone to Geraldton to undertake some training courses for his new job. He decided to return to Perth via Indian Ocean Drive. He set his cruise control at 100 km per hour. While he was on the right-hand bend of the s-bend, he heard a loud 'thud' on the front left-hand side of his car and, around the same time, his back wheels slipped on the gravel shoulder of the road. He then lost control. By the time he tried to correct his car, it was too late. Ms Wellington came around the s-bend in the northbound lane and the cars crashed head-on.[47]
[47] Appellant's ground 3 submissions [1] - [28].
After outlining the facts as stated by the prosecutor at the sentencing hearing (see [12] above), the appellant submits as follows:[48]
(1)His car was a Ford Fairmont 2000 sedan, not a Ford Falcon sedan.
(2)Similarly to Ms Wellington, he was in the area as part of his work.
(3)The term 'at speed' does not denote that he was speeding.
[48] Appellant's ground 3 submissions [28].
The appellant says he refuses to accept that he was driving in a way that was dangerous.[49] He also points to difficulties he has experienced in gathering evidence.
Ground 5: submissions
[49] Appeal ts 19, 26.
The appellant submits that Indian Ocean Drive is a notorious stretch of road; there have been over 500 accidents since its opening. He further submits that (1) the road no longer has gravel shoulders, (2) the s-bend now has more visible warning signs leading up to it and (3) the government has spent over $20 million for the road to be made safer due to the number of accidents that have occurred on it.[50]
Grounds 3 and 5: disposition
[50] Appellant's ground 5 submissions, relying on the letter from Main Roads WA set out at [59] above; appeal ts 26.
As we have already observed, proof by an appellant of innocence of a charge to which the appellant pleaded guilty does not, in itself, establish a miscarriage of justice. In any event, the evidence and submissions of the appellant, outlined above, fall well short of establishing that the appellant is not guilty of the offence of dangerous driving occasioning grievous bodily harm. As already noted, assertions made in letters or in submissions are not evidence.
In any event, even if it were assumed, favourably to the appellant, that the condition of the road contributed to the accident, this would not be inconsistent with the appellant's guilt of the offence of dangerous driving occasioning grievous bodily harm. In this sphere, as in many spheres, the law recognises that a consequence may have more than one cause. Here, the appellant's dangerous driving and the condition of the road may have both contributed, causally, to the accident by which the grievous bodily harm was caused. That is not, however, a defence to a charge of dangerous driving occasioning grievous bodily harm. The offence of dangerous driving occasioning grievous bodily harm is created by s 59 of the Road Traffic Act 1974 (WA). Section 59B(6) relevantly provides that in any proceeding for an offence against s 59 it is a defence for the person charged to prove that the grievous bodily harm occasioned by the incident was not in any way attributable to the manner (which expression includes speed) in which the motor vehicle was driven. The relevant and admissible material before this court does not establish that the appellant had a defence under s 59B(6).
Grounds 3 and 5 are without merit.
Ground 4: honest and reasonable mistake of fact
Ground 4: submissions
The appellant submits that he was not driving in a manner that was dangerous to the public. His submissions focus on the use by the prosecutor of the term 'at speed' in the recitation of the facts at the sentencing hearing. He emphasises that the State did not contend that he was 'speeding' but simply that he was 'driving at speed' through the s‑bend. While he accepts that he failed to negotiate the s-bend and lost control of his vehicle, he says he did not drive in a way that endangered others. He emphasises that the speed limit in the area did not drop from 110 km per hour and that there were no warning signs in place at the time. Consequently he had a mistaken belief that he was driving at a safe speed. While he accepts that he may have been negligent for a split second, he was not driving in a way that was dangerous.[51]
Ground 4: disposition
[51] Appellant's ground 4 submissions; appeal ts 25 - 26.
The matters raised by the appellant under ground 4 fall well short of demonstrating a miscarriage of justice. At their highest, the matters on which the appellant relies demonstrate that, had the appellant pleaded not guilty, there may have been room for argument as to whether he was, or was not, guilty of the Dangerous Driving Charge. Even demonstrating innocence is insufficient to establish a miscarriage of justice. All the more so, simply demonstrating that there was room to raise an arguable defence is no basis to conclude that the conviction, founded on the appellant's plea of guilty, gives rise to a miscarriage of justice.
Ground 4 has no reasonable prospects of succeeding.
Conclusion
For the above reasons, none of the proposed grounds of appeal has any reasonable prospects of success. For these reasons, we refused leave to appeal in respect of each ground of appeal and each proposed ground, and dismissed the appeal.
As already noted, we have taken into account the proposed additional evidence, the subject of the appellant's applications, to the extent it bears on the merits of any ground of appeal or proposed ground of appeal. The applications need not otherwise be dealt with, as they fall away upon the dismissal of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech2 JULY 2019
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