Macfarlane v The Queen
[2022] SASCA 46
•19 May 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MACFARLANE v THE QUEEN
[2022] SASCA 46
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
19 May 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
The appellant pleaded guilty on 10 August 2018 to one count of aggravated committing theft using force, contrary s 137 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of theft, contrary to s 134 of the CLCA.
On 27 October 2021, the appellant sought to appeal against his conviction on the basis that he had obtained evidence that he was mentally incompetent to commit the offences and not fit to instruct counsel or plead guilty. By way of amended Notice of Appeal dated 16 December 2021, the appellant also sought to adduce further evidence on appeal to demonstrate a miscarriage of justice had occurred such that his convictions should be set aside, and a retrial ordered.
The respondent did not oppose the Court receiving the further evidence nor the orders that the appeal be allowed, the convictions set aside, and the appellant be remitted to the District Court for a new trial.
Held, (the Court) granting permission to appeal and allowing the appeal:
1.The further evidence is cogent and would likely have had an important bearing on the result at first instance. The further evidence is admitted.
2.The further evidence supports the conclusion that there has been a miscarriage of justice.
3.The appeal against conviction is allowed and the convictions entered on 10 August 2018 and the sentence imposed on 20 November 2018 are set aside.
4.The defendant is remitted to the District Court for a new trial.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 134, 137, 269; Criminal Procedure Act 1921 (SA) ss 157, 158, 166; Evidence Act 1929 (SA) s 34; Mental Health Act 2009 (SA), referred to.
R v Frantzis (1996) 66 SASR 558, applied.
Ansell v The Queen [1966] Tas SR 8; Borsa v The Queen [2003] WASCA 254; Clone v Players (2018) 264 CLR 165; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Director of Public Prosecutions v Bhagwan [1972] AC 60; Fuller v R [2021] NSWCCA 194; In Re Van Beelen (1974) 9 SASR 163; Kanakaradnam v R [2018] NSWCCA 282; Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132; Owners of “Ship Kobe Maru” v Empire Shipping (1994) 181 CLR 404; PT Bayan v BCBC Singapore (2015) 258 CLR 1; R v Boag (1994) 73 A Crim R 35; R v C, J [2015] SASCFC 100; R v Carkeet [2009] 1 Qd R 190; R v Caruso (1988) 49 SASR 465; R v Chiron [1980] 1 NSWLR 218; R v Clayton (1984) 35 SASR 232; R v Day (2002) 82 SASR 85; R v Dorning (1981) 27 SASR 481; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Forde [1923] 2 KB 400; R v Hamnett (2018) 132 SASR 155; R v Howes (1971) 2 SASR 293; R v Kardogeros [1991] 1 VR 269; R v Keogh (No 2) (2014) 121 SASR 307; R v Knudson [2021] QCA 267; R v Liberti (1991) 55 A Crim R 120; R v Massey (1994) 62 SASR 481; R v Middap (1989) 43 A Crim R 362; R v Murphy [1965] VR 187; R v Parkes [2004] NSWCCA 377; R v Roach (1990) 54 SASR 491; R v Romeo (1987) 45 SASR 212; R v Sagiv (1986) 22 A Crim R 73; R v Sewell [2001] NSWCCA 299; R v Sleiman (No 1) (1993) 113 FLR 30; R v Smith (1987) 44 SASR 587; R v Vella (1984) 14 A Crim R 90; R v Wade [2012] 2 Qd R 31; R v Webb and Hay (1992) 64 A Crim R 38; Ratten v The Queen (1974) 131 CLR 510; Salmon v Chute (1994) 115 FLR 176; Stanton v Dawson (1987) 31 A Crim R 104; Stefanski v The State of Western Australia [2022] WASCA 5; Treacy v Director of Public Prosecutions [1971] AC 537; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37, considered.
MACFARLANE v THE QUEEN
[2022] SASCA 46Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA
LIVESEY P:
Introduction
The two issues arising on this appeal concern:
1.Whether this Court should receive further evidence pursuant to s 166 of the Criminal Procedure Act 1921 (SA) (the CPA); and
2.The approach to be taken to an appeal against convictions entered on charges to which the appellant pleaded guilty.
After considering all of the available evidence, the Director of Public Prosecutions did not oppose this Court receiving the further evidence, nor did he oppose orders that the appeal be allowed and that the appellant be remitted to the District Court for a new trial.
The Court regarded these concessions as appropriate. On 23 March 2022, this Court granted permission to appeal and made the following orders:
1.The further evidence be admitted.
2.The appeal against conviction is allowed and the convictions entered on 10 August 2018 and the sentence imposed on 20 November 2018 are set aside.
3.The defendant is remitted to the District Court for a new trial.
These are my reasons for those orders.
The offences and the offending
On 10 August 2018, the appellant pleaded guilty at the answer charge hearing to the following:
1.One count of aggravated committing theft using force, previously known as armed robbery, contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), the maximum penalty for which is life imprisonment; and
2.One count of theft, contrary to s 134 of the CLCA, the maximum penalty for which is imprisonment for 10 years.
At 1.24 am on 12 December 2017, the complainant in respect of the first charge, an 81-year-old man, was sitting at a table using his computer outside a café on Rundle Street. The appellant approached him, grabbed his coffee cup and threw it onto the table. The appellant picked a beer bottle up from the table and aimed it at the head of the complainant before smashing it onto the ground. The appellant then leaned over the table and punched the complainant in the left eye with his clenched right fist. The appellant fled the scene, taking with him the complainant’s backpack. The complainant was left injured and bleeding. This conduct comprises the first count.
At 1.30 am, a security officer working in Rundle Mall saw the appellant carrying two backpacks. He suspected that one of them had been stolen. He approached the appellant who became abusive and then ran into Gawler Place. Eventually, the appellant was located at the War Memorial on North Terrace. He was found to be in possession of a hooded jacket belonging to the security guard. This conduct comprises the second count.
When interviewed by police, the appellant said that he took the complainant’s bag because he believed it belonged to his girlfriend. He admitted assaulting the complainant because he believed him to be a paedophile as a result of seeing his spirit. When interviewed by forensic psychologist, Dr Benjamin Stewart, the appellant said that he took the bag because he believed the elderly complainant to be a paedophile who had taken the bag from a child. The appellant denied punching the complainant and he also denied threatening him with a beer bottle.
The circumstances of the offender
After outlining the circumstances of the offending in his sentencing remarks, the sentencing Judge said that it was concerning that the appellant continued to fabricate transparent justifications for his offending.
The sentencing Judge reviewed the appellant’s personal circumstances. These included that he had started smoking cannabis at the age of thirteen. His schooling was characterised by “absence and disengagement”. He left school midway through year 10 and worked, intermittently, in carpentry and furniture removal.
The appellant had been diagnosed with a psychiatric disorder involving significant psychosis. One of the appellant’s treating psychiatrists, Dr Craig Raeside, diagnosed chronic schizophrenia for which there had been numerous hospitalisations due to psychotic episodes. The appellant was noted to experience grandiose delusions which include the belief that he is on a mission from God to get Adelaide running the way it is supposed to and that his family had been landlords of Adelaide for the last 700 years. The appellant told a forensic psychologist that he owned and ran international businesses including a business which has diamond mines located beneath North Terrace and the Yatala Labour Prison.
The sentencing Judge noted that the appellant had expressed a desire to cease taking his prescribed anti-psychotic medication. The appellant had shown little insight into his condition and repeatedly denied having any mental disorder. The appellant’s psychotic condition was exacerbated by the use of illicit drugs including methamphetamine and cannabis. The appellant had also used Valium, heroin, ecstasy and LSD.
The appellant was noted to have an extensive criminal history which included violent offending as well as dishonesty and drug-related offending.
The sentence and the Criminal Law (High Risk Offenders) Act 2015 (SA)
On 20 November 2018, the sentencing Judge imposed a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA) of four years, reduced by 30 per cent on account of the appellant’s guilty pleas, being a sentence of two years, nine months, two weeks and five days’ imprisonment. A non-parole period of two years was fixed.
After sentence, the appellant was sentenced to a further period of imprisonment of four months and one week, cumulative on his existing sentence, for offending which occurred whilst in custody.
On 8 February 2021, before the expiry of the appellant’s term of imprisonment, the Attorney-General applied to the Supreme Court for an Extended Supervision Order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HROA).
That application came before the Supreme Court on 5 February 2021. The Court made an Interim Supervision Order as well as an order for the preparation of a psychiatric report pursuant to s 7 of the HROA. Before that report was produced, the appellant was remanded in custody by the Parole Board of South Australia for having breached conditions of the Interim Supervision Order.
On 26 May 2021, the Supreme Court considered the report of Dr Paul Furst, psychiatrist, dated 27 April 2021 and ordered a further report from Dr Furst to address specific questions. On 25 June 2021, the Supreme Court received Dr Furst’s further report dated 24 June 2021. On that day, the Court made an Interim Detention Order pursuant to s 18(4) of the HROA.
However, on 18 December 2021, the Attorney-General withdrew the application for an Extended Supervision Order and the Supreme Court dismissed that application and refused to make a Continuing Detention Order.
Though the appellant was released from custody, he was detained pursuant to the Mental Health Act 2009 (SA) pursuant to an order which remains in place until September 2022.
The psychiatric evidence
The history set out in the psychological report of Dr Stewart dated 31 October 2018 has already been mentioned. In the course of that report, the psychologist expressed the view that it was possible that the appellant harboured a delusional belief. However, the psychologist expressed the opinion that it was more likely that this was a fabricated justification given to minimise his offending. On this basis, the psychologist did not support a mental incompetence defence.
On the question of the appellant’s fitness to plead, the psychologist expressed the view that the appellant was able to demonstrate an adequate understanding of the charges and evidence, together with the implications of pleading guilty. This was so notwithstanding that the appellant also told the psychologist that he had “fired his lawyer in the previous week” because “his lawyer was working with corrupt custodial staff to rob him, due to the numerous adjournments which had occurred”.
In the course of his psychiatric report dated 27 April 2021, Dr Furst disagreed with the psychologist’s opinions:
In fact, Mr MacFarlane appears to have little understanding of his legal status, he is unable to engage in logical conversation and I believe he is mentally unfit to instruct counsel and will be unable to follow the course of evidence or proceedings.
Dr Furst explained that the appellant’s mental illness had proved intractable notwithstanding the prescription of high doses of clozapine, and it was likely that he would require a minimum of two years in hospital with a graduated release plan. Dr Furst expressed the opinion that without this level of intervention the appellant’s prognosis was extremely poor.
In his later report dated 24 June 2021, Dr Furst recorded a number of other delusional statements made by the appellant. These included that he lived in a house with an underground Lamborghini shop and that he did not have to pay rent because he was helping the owner by building computers all through it. The appellant explained that he and his mates had built a tunnel which was different to the O-Bahn tunnel which ran from his shop underneath the city. He said that this and other tunnels were all dirty and full of paedophiles, before explaining that when he saw the old man sitting with a purple bag he became “pissed off” because the old man had taken the bag from a schoolgirl. The appellant told Dr Furst he knocked over a coffee cup but denied assaulting that man.
The appellant told Dr Furst that he took the bag “to save the girl” because he “just sensed” that the girl had been in danger.
As for his interaction with the security guard, the appellant explained that he walked to Rundle Mall because previously he had “opened up a diamond mine on North Terrace in conjunction with the Lamborghini shop”. He said that he took the jacket because it had been left there for him by his workmate.
The appellant told Dr Furst that he pleaded guilty because he had been back and forth eight times to the Magistrates Court and twice to the Sir Samuel Way building and that his lawyer kept getting bribe money “by the screws to keep going to the courts”. Nonetheless, he told Dr Furst that he was making a lot of money running his business from his cell in B-Division at the Yatala Labour Prison.
Dr Furst expressed the opinion that the appellant was not fit to instruct counsel, not fit to stand trial and, at the time of his offending, was mentally incompetent. In the opinion of Dr Furst, the appellant’s offending “was most likely to have been driven by his florid and chronic psychosis that was at that time untreated”.
In a supplementary report dated 13 December 2021, Dr Furst acknowledged that the appellant had a basic understanding concerning his Court matter but, ultimately, he did not believe that the appellant could “truly give rational instructions”.
In a psychiatric report dated 25 October 2021, Dr Raeside reviewed Dr Furst’s April and June 2021 reports and supported a mental incompetence defence in respect of the charges the subject of this appeal. Dr Raeside explained that though the appellant has an extensive history of illicit drug use, there is no suggestion that he was simply labouring under a drug-induced psychosis but that there had been amphetamine-related exacerbation of psychosis at times. Importantly, the appellant remains psychotic with expansive delusional beliefs even during prolonged periods of incarceration and hospitalisation when it could be presumed that he was free of illicit drugs.
Mr Timothy Blake, a barrister and solicitor with the Legal Services Commission, explained in an affidavit the circumstances in which these reports came into existence.
Further evidence under s 166(c) of the Criminal Procedure Act 1921 (SA)
Pursuant to s 166(c) of the CPA the Court of Appeal “may, if it thinks it necessary or expedient in the interests of justice” receive “the evidence, if tendered, of any witness”. Section 166 was formerly s 359 of the CLCA.
The authorities show that the Court has tended to exercise the power to receive evidence on appeal in limited circumstances.[1] As the Full Court explained in In Re Van Beelen:[2]
Where evidence is proffered to the Court of Criminal Appeal pursuant to paragraph (c) of s. 352 - whether it is technically “fresh evidence”, in the sense in which that expression is customarily employed on appeals, or whether it is evidence that was not called at the trial but is not, stricto sensu, fresh - the Court will hold itself to be ultimately governed in its determination of the application by the answer it gives to the question: Does the Court “think that the verdict should be set aside” on the ground that “there was a miscarriage of justice”? In answering the question, the Court will be largely guided by working rules developed for use in the ordinary and general run of cases, but will not be deterred, by the apparent limits of those rules, from treating the passage in s. 353 “... or that on any ground there was a miscarriage of justice ...” as embodying the cardinal principle.
[1] As to the difference between fresh and new evidence, see for example Fuller v R [2021] NSWCCA 194, [43]-[49] (Johnson J, with whom Price and Davies JJ agreed).
[2] InRe Van Beelen (1974) 9 SASR 163, 183 (Walters, Wells and Jacobs JJ).
The “working rules” mentioned in this passage include the following:[3]
1.whether the evidence would have been admissible at trial, even if “it goes only to credit [and] could have been called to rebut a witness’s denial … pursuant to ss 26, 28 or 29 of the Evidence Act 1929”;
2.whether the evidence is of “substantial importance … cogency and plausibility as well as relevancy … remove the certainty of the prisoner’s guilt”;
3.whether or not “a deliberate choice was made by the defence not to call the evidence… especially where substantial forensic or tactical advantages were obtained”; and
4.whether the admission of the evidence is necessary to avoid a miscarriage of justice:[4]
If the accused person was precluded from presenting the evidence or from becoming aware of it or of its significance, because he was unfairly taken by surprise, or because the prosecution (or some person for whose actions the prosecution bears the responsibility) were guilty of fraud or malpractice, he has suffered a miscarriage of justice because he had been deprived of the fair trial that is his right. Similarly, where the accused was not aware of the evidence before or at the trial, and could not, by the exercise of reasonable diligence, have become aware of it, he has been deprived of a fair trial, not by the misfeasance of the opposition, but by the fall of events for which he cannot reasonably be held responsible; in such a case the powerful reasons of policy in favour of maintaining the inviolability of a jury's verdict cannot prevail over the fundamental dictates of fairness. In every such case the conclusion that there was a miscarriage of justice follows directly from the adjudication that the accused was deprived of the right to a fair trial.
[3] InRe Van Beelen (1974) 9 SASR 163, 183-184 (Walters, Wells and Jacobs JJ).
[4] InRe Van Beelen (1974) 9 SASR 163, 183-184 (Walters, Wells and Jacobs JJ).
As can be seen, the Court has generally considered whether the evidence could not have been obtained “by the exercise of reasonable diligence” for use at the trial and, if given, would probably have an important though not necessarily decisive influence on the result.[5]
[5] R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ); cf Ali (A Pseudonym) v The Queen [2021] SASCA 142, [14]-[15] (Livesey P and David JA), a case where the newly changed diagnosis did not materially affect the basis on which sentence was passed.
In R v Smith, King CJ emphasised that the power to receive fresh or further evidence would be exercised where the evidence would put the offending “in a new light” and explain “the full extent and implications of the appellant’s condition of health which existed at the time of sentence”.[6]
[6] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).
In R v Keogh (No 2), the Court of Criminal Appeal reviewed what were described as the requirements for admitting fresh evidence at common law.[7] It described the two ways in which there had been a degree of flexibility when applying these requirements “at least insofar as the criminal law is concerned”.[8] The first of these was as to whether the evidence was “fresh” in the sense that it could not have been adduced earlier with reasonable diligence, and the second was where even if the evidence is “not strictly fresh” it nonetheless “establishes that there has been a miscarriage of justice”.[9]
[7] R v Keogh (No 2) (2014) 121 SASR 307, [102] (Gray, Sulan and Nicholson JJ).
[8] R v Keogh (No 2) (2014) 121 SASR 307, [99] (Gray, Sulan and Nicholson JJ).
[9] R v Keogh (No 2) (2014) 121 SASR 307, [100] (Gray, Sulan and Nicholson JJ), citing Ratten v The Queen (1974) 131 CLR 510.
Given the circumstances of the offending and the statements made by the appellant afterwards which were considered by the sentencing Judge, it is perhaps surprising that the full impact of the appellant’s schizophrenia was not fully considered by his legal representatives.[10] Nonetheless, the psychological report provided some support for the approach taken.
[10] In Hall v The Queen (2020) 136 SASR 535, [12] the Court explained, “Counsel has a heavy responsibility, and an associated independent discretion, when taking instructions and representing clients who may be affected by mental impairment … There is no suggestion that these responsibilities were not fully and appropriately observed in this case” (Kelly, Livesey and Bleby JJ).
Ultimately, however, the further evidence now cogently puts into issue questions about whether the appellant was not only unfit to instruct, plead or stand trial, but was mentally incompetent at the time of his offending. There can be no suggestion that this issue was left aside for tactical reasons; at worst for the appellant, he entered guilty pleas because he wanted expedition. The full extent and implications of the appellant’s mental ill-health were not properly understood at the times he pleaded guilty and was sentenced.
For the purposes of determining whether to admit this evidence, it is sufficient to conclude that this evidence is both cogent and would likely have had an important bearing on the result. As counsel for the appellant pointed out, at the least this evidence would have provided the Court with a proper basis for ordering an investigation into the appellant’s mental competence pursuant to s 269 of the CLCA.[11]
[11] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148.
In the circumstances, and as the Director conceded, it is appropriate that this Court receive the evidence concerning the psychiatric opinions already mentioned, together with the lawyer’s affidavit explaining the circumstances in which that evidence was obtained.
Entertaining an appeal following guilty pleas
Counsel for the Director accepted that the appellant’s case was based on s 157(1)(a)(ii) of the CPA:
Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
…
(ii) the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal;
The Court must proceed under s 158(1)(c) of the CPA:
The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
…
(c) on any ground there was a miscarriage of justice.
In this case no issue was raised against the grant of permission to appeal. Permission was sought in the appeal notice as the appeal was not framed as one “involving a question of law alone”, see s 157(1)(a)(i) of the CPA.
The problems associated with an appeal following a plea of guilty have been considered in a number of cases. As might be expected, the issue has arisen in different contexts. Sometimes the issue on appeal is framed as a question whether the defendant should be permitted to withdraw the guilty plea.[12] In that kind of case it has been explained that this is “no easy matter”:[13]
The appellant bears the onus of persuading this court that, in all the circumstances, it is appropriate to go behind his plea of guilty.[14] It is no easy matter for an appellant to persuade a court to set aside a conviction on a plea of guilty.[15] The entry of a plea of guilty constitutes an admission of all of the elements of the offence and a conviction entered on the basis of such a plea will not be set aside unless it can be shown that a miscarriage of justice has occurred.[16] There are three well recognised circumstances in which a plea of guilty will be set aside: namely, where the appellant did not understand the nature of the charge or did not intend to admit guilt, where upon the admitted facts the appellant could not in law have been guilty of the offence, and where the guilty plea was obtained by improper inducement, fraud or intimidation.[17] However, it should be observed that the court’s jurisdiction on this appeal is not circumscribed other than by the existence of a miscarriage of justice.[18] Whether a miscarriage of justice has occurred depends on an examination of all of the relevant circumstances of the case.[19]
[12] See, eg, R v C, J [2015] SASCFC 100, [57]-[64] (Bampton J, with whom Kourakis CJ and Nicholson J agreed); Stefanski v The State of Western Australia [2022] WASCA 5, [104]-[109] (Buss P). See, eg, Tsavalas v Police [2016] SASC 103 [16] (Doyle J); cf R v HJS (2020) 137 SASR 280 [6], [77] (Doyle J).
[13] R v Knudson [2021] QCA 267, [43] (Kelly J with whom Fraser and Bond JJA agreed).
[14] R v Wade [2012] 2 Qd R 31, [42] (Muir JA with whom Wilson AJA agreed).
[15] Borsa v The Queen [2003] WASCA 254, [20] (Steytler J with whom Murray ACJ and Hasluck J agreed), referred to with apparent approval in R v Carkeet [2009] 1 Qd R 190, 194 [25] (Fraser JA, with whom Keane and Holmes JJA agreed).
[16] Meissner v The Queen (1995) 184 CLR 132, 157 (Dawson J).
[17] Borsa v The Queen [2003] WASCA 254, [20] (Steytler J with whom Murray ACJ and Hasluck J agreed).
[18] R v Carkeet [2009] 1 Qd R 190, [26] (Fraser JA, with whom Keane and Holmes JJA agreed).
[19] R v Carkeet [2009] 1 Qd R 190, 195 (Fraser JA, with whom Keane and Holmes JJA agreed); R v Wade [2012] 2 Qd R 31, [52] (Muir JA with whom Wilson AJA agreed).
In Maxwell v The Queen, Gaudron and Gummow JJ explained that the court will consider:[20]
… the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law[21], inability to obtain legal representation[22] or if the interests of justice otherwise require.[23]
[20] Maxwell v The Queen (1996) 184 CLR 501, 531 (Gaudron and Gummow JJ).
[21] See, eg, Stanton v Dawson (1987) 31 A Crim R 104. See also R v Sagiv (1986) 22 A Crim R 73, 80 (Lee J); R v Roach (1990) 54 SASR 491, 495.
[22] See, eg, R v Clayton (1984) 35 SASR 232; Stanton v Dawson (1987) 31 A Crim R 104.
[23] See, eg, R v Webb and Hay (1992) 64 A Crim R 38. See also R v Middap (1989) 43 A Crim R 362; R v Boag (1994) 73 A Crim R 35, 36-37 (Hunt CJ).
In other cases, the question has simply been framed as whether there has been a miscarriage of justice. Various approaches have been suggested.[24] These include emphasising that the application will be approached “with caution bordering on circumspection”[25], as well as requiring that the appellant “establish a good and substantial reason”,[26] or even “exceptional circumstances”.[27] Ultimately, whilst it is appropriate to emphasise the need for caution given the “high public interest in the finality of legal proceedings”,[28] no test different to the requirements of the section is appropriate. Whatever the terms in which the question is sometimes framed, the relevant statutory appeal provision in this State depends upon a conviction and satisfying one of the limbs of s 158(1) of the CPA. The relevant requirement in this case being: the appellant must establish that there has been a miscarriage of justice.[29]
[24] See generally Kanakaradnam v R [2018] NSWCCA 282, [17]-[18] (Johnson J, with whom Simpson AJA and N Adams J agreed); Fuller v R [2021] NSWCCA 194, [36] (Johnson J, with whom Price and Davies JJ agreed).
[25] R v Liberti (1991) 55 A Crim R 120, 122 (Kirby P, with whom Grove and Newman JJ agreed); R v Parkes [2004] NSWCCA 377, [48] (Hodgson JA, with whom Hulme J and Smart AJ agreed).
[26] R v Sewell [2001] NSWCCA 299, [39] (Smart AJ, with whom Heydon JA and Simpson J agreed); Wong v Director of Public Prosecutions (2005) 155 A Crim R 37, [39] (Howie J).
[27] R v C, J [2015] SASCFC 100, [59] (Bampton J, with whom Kourakis CJ and Nicholson J agreed).
[28] R v Liberti (1991) 55 A Crim R 120, 122 (Kirby P, with whom Grove and Newman JJ agreed). See also D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [34], [45] (Gleeson CJ, Gummow and Heydon JJ); Clone v Players (2018) 264 CLR 165, [56] (Kiefel CJ, Gaegler, Keane, Gordon and Edelman JJ).
[29] Criminal Procedure Act 1921 (SA) s 158(1)(c).
In R v Howes the defendant challenged whether the information upon which he was charged was “good in law”.[30] In the course of its reasons, the Court of Criminal Appeal referred to cases where the later challenge on appeal concerned whether the defendant could in law have been convicted, and it relied on R v Forde.[31] In Forde, the court had put the question as to whether an appeal lay in the following terms:[32]
The first question that arises is whether this Court can entertain the appeal. A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged. The first ground is not open to the appellant, as he was advised by counsel of experience who had given careful consideration to the facts and to the provisions of the amending statute of 1992, but it has been strenuously contended by Mr. Merriman in an able argument that upon the admitted facts the appellant could not in law have been convicted of the indecent assault.
[30] R v Howes (1971) 2 SASR 293.
[31] R v Howes (1971) 2 SASR 293, 306-307 (Hogarth, Walters and Sangster JJ), citing R v Forde [1923] 2 KB 400 (Forde), 403 (Lord Hewart CJ, Avory and Salter JJ); Director of Public Prosecutions v Bhagwan [1972] AC 60; Treacy v Director of Public Prosecutions [1971] AC 537.
[32] R v Forde [1923] 2 KB 400, 403 (Lord Hewart CJ, Avory and Salter JJ).
The approach taken in Forde was later followed by the Court of Criminal Appeal in R v Caruso, where von Doussa J explained:[33]
Under s 352 (which finds its genesis in the Criminal Appeal Act 1907 (UK)) the Full Court has power to set aside a conviction recorded on a plea of guilty; R v Forde [1923] 2 KB 400 at 403, R v Stewart [1960] VR 106 and Gower v Ross (1959) SASR 278. A court will entertain an appeal against such a conviction if it appears (a) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (b) that upon the admitted facts that he could not in law have been convicted of the offence charged. The present applications are based on the second of these grounds.
[33] R v Caruso (1988) 49 SASR 465, 489 (von Doussa J). See also R v Hamnett (2018) 132 SASR 155, [24]-[25] (Kourakis CJ, Stanley and Lovell JJ), and the cases there cited.
Forde has also been followed in Victoria.[34] In R v Murphy, Sholl J did not disagree with the principles in Forde but emphasised that they were not exhaustive:[35]
Most of the reported cases can, it is true, be fitted into the principles formulated in R v Forde. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice. They do not cover, for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats, e.g. of a fellow accused, or of a police officer, to plead guilty where otherwise he would have pleaded not guilty. In such a case there would, in my opinion, be a miscarriage of justice, unless perhaps the case against him were overwhelming, and there should be a new trial.
(citations omitted)
[34] R v Murphy [1965] VR 187 (Murphy).
[35] R v Murphy [1965] VR 187, 190 (Sholl J). See also R v Vella (1984) 14 A Crim R 90; R v Kardogeros [1991] 1 VR 269; R v Sleiman (No 1) (1993) 113 FLR 30.
A similar approach has been taken in New South Wales.[36] Murphy appears to have been applied in Tasmania as well as in the Northern Territory.[37] Murphy was referred to with apparent approval by Dawson J in Meissner v The Queen.[38]
[36] R v Chiron [1980] 1 NSWLR 218; R v Ferrer-Esis (1991) 55 A Crim R 231.
[37] Ansell v The Queen [1966] Tas SR 8; Salmon v Chute (1994) 115 FLR 176.
[38] Meissner v The Queen (1995) 184 CLR 132, 157 (Dawson J).
From time to time, concerns have been expressed about whether an appellant should be permitted to rely on the statutory appeal provisions where the conviction was entered following a guilty plea. For example, in R v Romeo, the appellants pleaded guilty following adverse rulings made on a voir dire in which they had argued that there was a substantive defence of entrapment at common law.[39] As Cox J later explained,[40] he was the trial Judge in Romeo, and he had encouraged the use of the appeal procedure to the Court of Criminal Appeal notwithstanding the pleas of guilty. His Honour did so:[41]
… because it seemed at the time to all concerned that the only alternative was a lengthy and expensive trial (even if the facts were not greatly contested) the result of which would have been a foregone conclusion. However, the procedure was not adopted until the prosecution had made it plain that they would cooperate in it. I certified under s 352 of the Criminal Law Consolidation Act 1935 (SA) that it was a fit case for appeal.
[39] R v Romeo (1987) 45 SASR 212 (Romeo).
[40] R v Frantzis (1996) 66 SASR 558, 559 (Cox J).
[41] R v Frantzis (1996) 66 SASR 558, 559 (Cox J).
In the Court of Criminal Appeal, Johnston J explained:[42]
The Crown accepted that there was a right of appeal against conviction in these circumstances: the judgment of a court in passing a conviction based upon a plea of guilty which plea is made on an erroneous basis that a defence is not open is a judgment which is in error in law within the meaning of s 353(1) of the Criminal Law Consolidation Act 1935, and alternatively it was conceded by the Crown that it may be regarded as a miscarriage of justice. Similarly, the Crown conceded that a ruling that the discretion to exclude evidence will not be exercised may be similarly categorised; for the purposes of the present case the Crown was prepared to concede that it could be so categorised. The question of a right of appeal had been discussed between the appellant and the trial judge before the plea was entered and the plea was entered upon the understanding to which the Crown was a party that the accused would not lose the right of appeal. The following authorities are relevant – Director of Public Prosecutions v Shannon [1975] AC 717; (1974) 59 Cr App R 250; R v Vickers (1975) 61 Cr App R 48; and see J F Archbold, Pleading Evidence and Practice in Criminal Cases (41st Ed 1982), pars 7 to 10.
[42] R v Romeo (1987) 45 SASR 212, 226-227 (Johnston J).
Romeo was later followed in R v Massey.[43] Again, that was a case where the prosecution conceded on appeal that an appeal lay following pleas of guilty.
[43] R v Massey (1994) 62 SASR 481, 482-483 (King CJ, with whom Perry J agreed).
In R vFrantzis, the defendants entered unqualified pleas of guilty following adverse rulings made following a voir dire regarding the propriety of a search. Cox J accepted that there was power to entertain the appeal, but warned that it may not “always [be] available”:[44]
The cases show, as one would expect, that the Full Court has power to set aside a conviction that is entered upon a defendant’s plea of guilty, but that is not to say that this is always available as an alternative appeal procedure to the normal course of a plea of not guilty followed by a trial and a jury verdict and then an appeal against conviction.
[44] R v Frantzis (1996) 66 SASR 558 (Frantzis), 559 (Cox J).
Where, as in the present case, there was no objection taken on appeal by the prosecution, whether as to permission to appeal or the appeal more generally, his Honour preferred not to express any opinion about “the law or the Court’s policy”. Cox J raised the potential for a defendant, who could opt for trial by judge alone, to admit all of the facts pursuant to s 34 of the Evidence Act 1929 (SA), other than those going to any critical admissibility question. Nonetheless, his Honour accepted that the “feasibility or desirability of any such procedure may need to be debated”. Cox J concluded with the warning that it would be unwise for a defendant to “take it for granted” that the appeal procedure was always available.[45]
[45] R v Frantzis (1996) 66 SASR 558, 559-560 (Cox J).
Lander J, with whom Cox and Nyland JJ agreed, undertook an extensive review of the cases. His Honour started with the propositions that pleas of guilty represent an admission of all the essential elements of the charge,[46] and that the conviction is entered on the confession formally entered rather than on the evidence adduced.[47]
[46] Meissner v The Queen (1995) 69 ALJR 693; Maxwell v The Queen (1996) 184 CLR 501.
[47] R v Massey (1994) 62 SASR 481; R v Sagiv (1986) 22 A Crim R 73.
Lander J was concerned that sentence was not passed until a year following the pleas of guilty. Whilst no right of appeal arose before conviction,[48] Lander J criticised the delay of one year until the appeal was commenced because there was no need to wait until sentence.[49] Lander J accepted that there was power to entertain the appeal and that it could be allowed if there had been a miscarriage of justice “unless, as the proviso to the section says, the court considers that no substantial miscarriage of justice has actually occurred”.[50]
[48] See the then s 352(1) of the Criminal Law Consolidation Act 1935 (SA).
[49] R v Frantzis (1996) 66 SASR 558, 564 (Lander J, with whom Cox and Nyland JJ agreed).
[50] R v Frantzis (1996) 66 SASR 558, 565 (Lander J, with whom Cox and Nyland JJ agreed), referring to s 353 of the Criminal Law Consolidation Act 1935 (SA).
In Frantzis, Lander J nonetheless expressed “considerable difficulties about the procedure, which I fear, could bring the administration of justice into disrepute”.[51] His Honour explained why he thought that the administration of justice might be brought into disrepute:[52]
I think that the ordinary citizen would have difficulty in understanding how it is that a person could publicly confess to all the elements of a very serious crime, seek and obtain a reduction in penalty by reason of that confession, but still be permitted to appeal against the conviction. It seems to me that allowing parties to appeal from a conviction entered upon their own public expression of guilt, in circumstances where credit is given for the confession, and where the court in which the conviction is entered and sentence pronounced is not made aware of the party’s intention to dispute the entry of the conviction, is likely to bring the administration of justice into disrepute. The saving in cost may not justify the potential embarrassment to the administration of justice.
[51] R v Frantzis (1996) 66 SASR 558, 574 (Lander J, with whom Cox and Nyland JJ agreed).
[52] R v Frantzis (1996) 66 SASR 558, 574-575 (Lander J, with whom Cox and Nyland JJ agreed).
Lander J concluded with a reference to what were recent amendments to s 352 of the CLCA which permitted appeals in respect of questions arising before or at trial.[53] As mentioned, no question arose in that case concerning permission to appeal under the precursor to s 157 of the CPA.
[53] Now s 157 of the Criminal Procedure Act 1921 (SA).
The views expressed in Frantzis were taken a step further in R v Day, where Perry J held:[54]
The practice of an accused pleading guilty but reserving his or her right to appeal against the conviction following an unfavourable ruling on a voir dire is irregular, and should no longer be permitted.
[54] R v Day (2002) 82 SASR 85, [40] (Perry J).
In that case there was an issue about the failure to record an interview which it was said represented a failure to comply with s 74D of the Summary Offences Act 1953 (SA). The trial judge heard argument on the voir dire and ruled that s 74D did not render the unrecorded conversations inadmissible. The defendant then pleaded guilty, reserving her right to appeal. On appeal, the voir dire ruling was held to be an error and the prosecution should have applied to admit the evidence in the interests of justice under s 74E(1)(b). Like Perry J, Gray J also criticised the approach of pleading guilty on the basis that this was subject to exercising a right of appeal:[55]
The procedures of the court should not be used in this way. Other avenues are available, including the use of the case stated or questions reserved procedures, or if found guilty following trial, through the appellate process.
The Crown took no point that the pleas of guilty were a bar to a grant of leave. The Crown accepted that the applicant had been induced to plead on the understanding that her appeal rights were preserved. The Crown accepted that the procedure followed was inappropriate.
The Crown also accepted that if the applicant could not pursue an appeal then she should be permitted to withdraw her pleas. Those pleas had been induced by a misunderstanding. This is the course that should be followed. The application for leave should be stood over to allow the applicant to make application to withdraw her pleas of guilty. As a consequence of the withdrawal of the pleas the convictions and sentence will be set aside. Once those matters have been addressed the application for leave to appeal should be dismissed.
[55] R v Day (2002) 82 SASR 85, [75]-[77] (Gray J, with whom Wicks J agreed).
This case does not present an opportunity to determine why the practice described in Frantzis and R v Day is irregular and should not be followed. It may be that the issue can be analysed in a number of ways. One way may be through the prism of abuse of process principles. Alternatively, the practice might be seen as representing a circumstance where there is no miscarriage of justice because, despite any adverse and contestable voir dire ruling, the defendant has by the plea of guilty conceded all essential elements, including any element which depended upon what was in contest at the voir dire.[56] As is well-recognised, the conviction is in those circumstances entered on the confession formally entered rather than on the evidence.[57] However, as mentioned, and as in R v Massey and Frantzis, the Director took no issue with permission to appeal or the propriety of the appeal before this Court.
[56] Meissner v The Queen (1995) 184 CLR 132, 157 (Dawson J).
[57] R v Massey (1994) 62 SASR 481; R v Sagiv (1986) 22 A Crim R 73.
Whilst there may well be circumstances where an appeal cannot be entertained following the entry of a guilty plea, it is necessary to consider the circumstances of each case. Those circumstances may well be relevant to whether permission to appeal should be granted. Permission to appeal aside, and as Sholl J explained in Murphy, the categories are not closed by authorities such as Forde. Apart from cases raising the potential for argument about abuse of process and the like, each case will usually depend on whether the requirements of the CPA can be met.
Whilst the authorities may represent an important guide as to the ways in which similar cases have been addressed, the grant of judicial power is generally to be read as broadly as the language of the grant may reasonably bear.[58] It is inappropriate to circumscribe the operation and scope of the statutory appeal provisions by reference to tests that are not mentioned, whether expressly or by necessary implication, in the statute. The question must always ultimately be whether there has been a miscarriage of justice.
[58] Owners of “Ship Kobe Maru” v Empire Shipping (1994) 181 CLR 404, 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); PT Bayan v BCBC Singapore (2015) 258 CLR 1, [29] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
Apart from the concession made that an appeal is available to the appellant, this case bears a superficial similarity to Frantzis because the guilty pleas were entered in circumstances where there had been no issue about the evidence (for example on a voir dire), no issue about whether the evidence was sufficient to support the charges and no issue about whether the charges were good in law. In addition, there was no suggestion made before the sentencing Judge that what was being done was to be made subject to the exercise of any right of appeal, and no agreement to that effect was made with the prosecution.[59]
[59] See R v Frantzis (1996) 66 SASR 558, 574 (Lander J, with whom Cox and Nyland JJ agreed).
Nonetheless, this case is close to the first of the categories described in Forde: it is open to contend that the appellant could not in law appreciate the nature of the charge and could not be taken to intend to admit his guilt because, on the evidence, there are questions about his mental competence and capacity to instruct and his fitness to plead at the time of the pleas, as well as about his mental competence at the time of the alleged offending.[60] Unlike cases such as Stefanski v The State of Western Australia, there is no suggestion that the appellant opted to plead guilty rather than face the risk of indeterminate detention under legislation such as the Mental Health Act2009 (SA) at a time when he was of sound mind.[61]
[60] R v Forde [1923] 2 KB 400, 403 (Lord Hewart CJ, Avory and Salter JJ).
[61] Stefanski v The State of Western Australia [2022] WASCA 5, [164]-[165] (Buss P).
Whilst it might be suggested that there is no need to address these issues where the appellant has already served his sentence, the history of this matter demonstrates that the existence of convictions for serious offending can have an important impact on a defendant long after, and regardless of, the time spent in custody. There is obvious utility in an appeal.
The further evidence supports the conclusion, and the Director’s concession, that there has been a miscarriage of justice.
Conclusion
For these reasons I joined in the making of the orders by which the appeal was allowed on 23 March 2022.
LOVELL AND BLEBY JJA: On 23 March 2022, we agreed with the orders made.
We have had the opportunity to read the draft reasons of President Livesey. Leave to adduce further evidence and permission to appeal were conceded. If the guilty plea was not set aside, there would be a miscarriage of justice.
We prefer to await full argument before deciding the issue of the test to be applied on an appeal where permission to appeal is sought to set aside a guilty plea.
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