Mao v Ellston

[2025] ACTSC 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Mao v Ellston

Citation: 

[2025] ACTSC 18

Hearing Date: 

4 February 2025

Decision Date: 

7 February 2025

Before:

Mossop J

Decision: 

(1)  The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – appeal alleging conviction based upon plea of guilty involved miscarriage of justice – where appellant agreed to plead guilty to two of six charges in family violence matter – whether appellant understood the nature of the charges pleaded to – whether appellant sufficiently understood the facts admitted by the plea – miscarriage of justice not established

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 17

Crimes Act 1900 (ACT), ss 24(1), 26(1), 27-28, 30

Magistrates Court Act 1930 (ACT), s 214(3)(b)

Cases Cited: 

Decision Restricted [2024] ACTSC 285

Meissner v The Queen (1995) 184 CLR 132

R v Gomez [2007] ACTCA 21; 1 ACTLR 145

White v R [2022] NSWCCA 241; 110 NSWLR 163

Parties: 

Yexin Mao ( Appellant)

Ashlea Ellston ( Respondent)

Representation: 

Counsel

D Petrushnko ( Appellant)

S McFarland ( Respondent)

Solicitors

Brightstone Legal (Appellant)

Director of Public Prosecutions ( Respondent)

File Number:

SCA 64 of 2023

Decision Under Appeal: 

Court/Tribunal:           Magistrates Court of the ACT

Before:   Special Magistrate Christensen

Date of Decision:       1 August 2023

Case Title:                 Ellston v Mao

Court File Number(s): CAN 9799 of 2022

  CAN 9802 of 2022

MOSSOP J:  

Introduction

1․This is an appeal by Yexin Mao from his conviction and sentence on a charge of common assault and a charge of choking, suffocating or strangling another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). He contends that the convictions constitute a miscarriage of justice because of the circumstances in which he entered pleas of guilty. He submitted that the convictions should be set aside, and the proceedings remitted to the Magistrates Court for rehearing.

2․For the reasons that follow, no miscarriage of justice has been established and the appeal must be dismissed.

Background facts

3․Although the original Statement of Facts recording the allegations made by the informant were not before the court on the appeal, the allegations giving rise to the proceedings in the Magistrates Court were accurately summarised in the respondent’s written submissions as follows:

The victim of the offences was the appellant’s partner … with whom the appellant had been in a relationship for approximately two years. In the afternoon of 5 October 2022, the appellant and the victim were in their apartment when they began to have a verbal argument. The victim approached the appellant as he was packing away some electronic chargers into a bag. The victim grabbed one of the chargers and threw … [it] across the room. The appellant then grabbed the victim by the neck with his hands which caused immediate redness and swelling to her neck.

The victim was scared and ran to the kitchen, arming herself with a knife. The appellant saw the victim had a knife and ran at her at speed which caused the victim and appellant to fall to the ground. The appellant grabbed the knife from the victim and threw it away. A wrestle then ensued, during which the appellant shook the victim causing the victim’s head to hit the floor. In an attempt to get the appellant off her, the victim bit the appellant on his neck. In response, the appellant bit the victim’s right pinkie finger which caused the skin to break and the finger to swell. At some point during the wrestle, the victim’s head made contact with the appellant’s head which caused redness above the victim’s left eyebrow.

At about 5:04pm, the victim called triple zero. During the call, the victim was heard to be crying, and the appellant could be heard to be speaking. A short time later, police arrived at the apartment. Police observed the appellant to have a bite mark on the right side of his neck and the appellant told police this was caused by the victim. Police observed the victim to have smudged make up. She was crying and struggling to breathe. Police observed the victim’s forehead, throat and neck were red and observed swelling around the victim’s neck. Additionally, police observed injury to the victim’s pinkie finger which was bleeding.

The appellant spoke with police and told them he had a physical altercation with the victim and admitted to hitting her. The appellant was told by police that he was being placed under arrest for assault and choking the victim. The appellant was taken to the watchhouse, and the victim was taken to Calvary Hospital and participated in a Family Violence recorded statement where she described what happened.

(Citations omitted.)

4․Following the appellant’s arrest on 5 October 2022, he was charged with six offences in the Magistrates Court on 6 October 2022:

(a)CAN9799/2022: aggravated intentionally and unlawfully choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (hereafter “the choking charge”);

(b)CAN9800/2022: assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900;

(c)CAN9801/2022: threat to kill another person, contrary to s 30 of the Crimes Act 1900;

(d)CAN9802/2022: common assault, contrary to s 26(1) of the Crimes Act 1900;

(e)CAN9803/2022: common assault, contrary to s 26(1) of the Crimes Act 1900; and

(f)CAN9804/2022: assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900.

5․On 6 October 2022, the appellant was represented by a Legal Aid lawyer, Samuel Brown, on a duty basis for the purposes of a bail application. The appellant was granted bail and the proceedings were adjourned to 1 November 2022.

6․On 1 November 2022, the appellant was represented by Taden Kelliher, who was a solicitor then employed by Tim Sharman, a solicitor practising in criminal law. Pleas of not guilty were entered to all charges. The matter was then before the court on 13 December 2022, 17 January 2023 and 24 January 2023. On 24 January 2023, the Director of Public Prosecutions withdrew charge CAN9801/2022 (threat to kill). The proceedings were listed for hearing on 27 and 28 July 2023.

7․Mr Kelliher left the employment of Mr Sharman in mid‑2023, and Mr Sharman took over carriage of the files for which Mr Kelliher had previously been responsible.

8․In reply to email communications from the prosecutor, Mr Angus Brown, Mr Sharman indicated that the appellant required an interpreter for the hearing. Attempts were made by the informant to obtain two on‑site Mandarin interpreters for the hearing.

9․On 27 July 2023, the matter was listed in the hearing callover before the Chief Magistrate. Only one interpreter was available on that day. A further charge of choking was laid: CAN1871/2023. The proceedings were adjourned until the next day. Mr Brown used the available interpreter to have a conference with the complainant. With the assistance of Mr Brown, Mr Sharman obtained confirmation from the interpreter of the accuracy of some translations of a document which he intended to use in cross‑examination of the complainant.

10․That day, there were discussions between the lawyers as to the possibility of a plea of guilty to some charges. Those discussions will be described later in these reasons.

11․On 28 July 2023, the matter returned to the hearing callover. During the course of that callover, the appellant pleaded guilty to charge CAN9799/2022 (the choking charge) and CAN9802/2022 (common assault). The balance of the charges, including the new choking charge of CAN1871/2023, were withdrawn at the request of the prosecution. The Chief Magistrate ordered a Court Duty Report (which is a short form pre‑sentence report prepared by an ACT Corrections officer present in the court precincts), and the matter was adjourned to 1 August 2023 for sentence.

12․On 1 August 2023, the matter returned to court before Special Magistrate Christensen. In relation to the choking charge, the amended agreed Statement of Facts said:

About 4:40pm, that same date, the Defendant arrived at their unit after studying most of the day with a friend. The Defendant and [the complainant] started having a verbal argument. [The complainant] approached the defendant as he packed chargers into a bag. [The complainant] grabbed the chargers and threw them across the room. The Defendant then grabbed [the complainant] by the neck with his hands. [The complainant] suffered immediate redness and swelling to her neck.

13․There was a subsequent reference in the amended Statement of Facts to police observing that the complainant’s “throat and neck appeared to be red with partial swelling around the centre of the neck”.

14․The common assault charge was a wrapped‑up charge of all of the other facts. It is not necessary for the purposes of this appeal to set out the facts which were agreed.

15․For the common assault charge, the appellant was given a six-month good behaviour order. On the choking charge, the appellant was given a 12-month good behaviour order. Although neither the transcript, the bench sheet, or the perfected order refers to the conviction of the appellant, having regard to the terms of the submissions that were made to the magistrate and the absence of any consideration of or reference to s 17 of the Crimes (Sentencing) Act 2005 (ACT), the intention of the magistrate was to convict the appellant on each charge, rather than impose a good behaviour order without a conviction. That understanding was consistent with the approach taken by the parties on the appeal.

Grounds of appeal

16․The grounds of appeal as set out in the notice of appeal are as follows:

1.     The appellant’s conviction constitutes a miscarriage of justice arising from the following circumstances:

(a)   The appellant had instructed his legal representative that he wanted to proceed to a defended hearing and was not aware that his legal representative had started to negotiate a plea with the prosecution, such as agreeing to the 2 counts the [appellant pleaded] … guilty to.

(b)   No interpreter was present to assist the appellant.

(c)   The appellant had not been advised as to the best course of action to adopt in negotiating a plea with the prosecution, such as agreeing to the 2 counts the [appellant pleaded] … guilty to.

(d)   The appellant was not aware that he has plead[ed] and found guilty to a charge of chocking as per final agreed facts [sic].

(e)   The appellant’s plea was unexpected and [he] was under pressure to enter the pleas of guilty.

2.     If the Court is satisfied there is a question about the guilt of the appellant, then there has been a miscarriage of justice.

17․These grounds of appeal appear to be intended to be read together as asserting a single set of circumstances which give rise to a miscarriage of justice.

The test to be applied

18․In relation to when a plea of guilty would give rise to a miscarriage of justice, the appellant relied upon the statement of principle in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 at [38], namely:

In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge.  In Meissner v The Queen (1995) 184 CLR 132 at 157, Dawson J said:

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt.  He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. 

(References omitted.)

19․The appellant also adopted what was said by the New South Wales Court of Criminal Appeal in White v R [2022] NSWCCA 241; 110 NSWLR 163 at [60]-[63]:

We are comfortably satisfied from our review of the authorities that, although there has been a conflation of tests in some cases and some summaries of authority, the proper test to be applied where an accused seeks leave to withdraw his or her plea of guilty prior to conviction (a first scenario case) is whether the interests of justice require that course to be taken.

…

A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal. The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence. That was what Maxwell was all about.

… In these cases [where an attempt is made to withdraw a guilty plea after conviction], an accused seeking to go behind his or her plea of guilty could only do so on appeal against conviction, in which to succeed a miscarriage of justice would need to be established. That is why in Hura, Spigelman CJ dealt with the matter under the heading “[m]iscarriage of justice”.

(Footnotes omitted.)

20․The respondent also adopted the principles set out in Gomez and the formulation of the test in the quoted passage from Dawson J in Meissnerv The Queen (1995) 184 CLR 132.

21․In the present case, the appellant is acting after conviction to set that conviction aside. This will necessarily impact on the finality of the verdict. It requires the establishment of a miscarriage of justice. The appellant here seeks to bring himself within the principle explained by Dawson J in Meissner that “the accused did not understand the nature of the charge or did not intend to admit he was guilty of it”.

22․Because the appellant is seeking to set aside a conviction based on his plea of guilty, it is not necessary in this case to determine whether what was said in White concerning the test for the withdrawal of a plea prior to conviction is consistent with what was said in Gomez: see Decision Restricted [2024] ACTSC 285 at [74]-[75].

Evidence on the appeal

23․For the purposes of establishing his grounds of appeal, the appellant relied upon two affidavits that he affirmed, dated 20 and 29 August 2024 respectively. He also relied upon an affidavit of Xiaolin Zhu, an interpreter, dated 5 September 2024, relating to the translation of a particular audio recording. The appellant was cross‑examined on his affidavits.

24․The respondent relied upon an affidavit of Lillian Thomas dated 20 January 2025, which exhibited a large number of relevant documents. It also relied upon an affidavit of Adam O’Day dated 14 January 2025 in relation to the circumstances surrounding the preparation of the Court Duty Report relied upon at the appellant’s sentencing hearing in the Magistrates Court. Mr O’Day was cross‑examined on his affidavit. The respondent also called Tim Sharman, the appellant’s former solicitor, to give evidence. He gave oral evidence and was cross‑examined by counsel for the appellant.

25․There were no objections to affidavit and oral evidence and I treat it as having been admitted by consent under s 214(3)(b) of the Magistrates Court Act 1930 (ACT).

Findings for the purposes of the appeal

26․In addition to setting out his assertion of a miscarriage of justice in his grounds of appeal, in the appellant’s written submissions, the appellant described his case in different ways. Counsel said:

(a)“the appellant did not understand or appreciate the nature of the charges that he was pleading guilty to”; and

(b)“[t]he appellant did not completely understand what he was pleading guilty to”.

27․While these two propositions are potentially different, the general submission that was put was that, “[f]rom when Mr Sharman took over the matter to the plea entered on 28 July 2023, the whole process … [was] compromised by the absence of a mandarin interpreter.” In oral submissions, emphasis was placed upon what was said to be an absence of evidence that the appellant had signed or otherwise adopted the final amended Statement of Facts that was agreed for the purposes of his guilty plea.

28․In order to assess the appellant’s contention that there was a miscarriage of justice arising from a failure to understand the nature of the charges, the details of what he was pleading to, or the precise terms of the agreed Statement of Facts, it is necessary to examine the facts surrounding the negotiation and entry of the pleas.

29․The appellant came to Australia in 2018 in order to study a Bachelor of Advanced Computing at the University of Sydney. His studies were interrupted by a return to China to visit his family, and then by the COVID-19 pandemic. He returned to Sydney in March 2022 and completed his undergraduate degree. He then moved to Canberra in July 2022 to undertake a master’s degree at the Australian National University. Notwithstanding that his degree was in computing, I infer that a significant degree of English language competence is required in order to successfully complete an undergraduate degree and attempt master’s degree‑level courses at two mainstream Australian universities.

30․Following his arrest, the appellant was able to give basic instructions about his personal circumstances to the Legal Aid lawyer, who represented him at the bail application before the Chief Magistrate on 6 October 2022. The magistrate was told that there were no language issues. The lawyer told the court: “[h]e’s requested that your Honour may potentially have to slow down but, otherwise, I could take instructions without the translator quite clearly, your Honour”. When asked whether an interpreter might be needed at a future date, the Legal Aid lawyer said “I don’t believe so, your Honour. He seemed quite capable.” When the Chief Magistrate indicated that she would grant bail with conditions and asked him whether he could comply with the conditions that she described, the appellant answered in a manner that indicated that he was following the proceedings, as follows:

The Defendant: Yes. Also, I didn’t choke her and I didn’t threaten to kill her. But I thank you for your decision and I accept all these things.

Her Honour: All right. I hear what you’re saying. Those are matters that can be considered further down the track about the facts.

The Defendant: Yes. Yes. Yes. I understand. Thank you.

31․Mr Kelliher appeared for the appellant on 1 November 2022 when pleas of not guilty were entered. He also appeared for the appellant on 13 December 2022, 17 January 2023 and 24 January 2023. There is no indication on the bench sheet that the appellant had been excused from attending, and on each occasion, bail was continued. There is no evidence from the appellant as to any oral or written communications between him and Mr Kelliher. It is likely that, as a result of the requirement to attend court, the involvement of Mr Kelliher and the requirement to enter pleas, the appellant had some understanding of the individual charges that he was facing and the likely future court process.

32․Mr Sharman read the file and the prosecution brief prior to meeting with the appellant on the afternoon of 25 July 2023. The appellant was informed by Mr Sharman that he should not talk to the complainant, and that he should provide any documents that he had and written instructions as to what had occurred. He told the appellant that, even if the complainant denied the version of events that she had previously given, the matter would still proceed. The appellant provided a written document containing his version of events to Mr Sharman that day. His affidavit records that his written instructions were “prepared with some assistance of Google translation” but it is not clear in what respects that was used. The document itself is consistent with a reasonable command of written English, although it does contain indications that English is not his first language. The instructions that he gave:

(a)admitted that he “became really angry and pushed [the complainant] onto the floor”;

(b)admitted that “I started to pull her hair and pushing her head”, accepting that “I might touched her neck when I tried to push her away for some reason” but saying it was “not intentional”; and

(c)admitted to biting the complainant’s finger, but put that in the context of her fighting him.

33․It is important to note that, although the brief of evidence was not put before the court for the purposes of the appeal, the evidence in chief interview conducted with the complainant was supportive of the charges laid and, if accepted at a contested hearing, presented a much more serious version of events than that which was ultimately recorded in the amended Statement of Facts agreed upon for the purposes of the plea agreement. The complainant’s version of events was supported by other contemporaneous evidence including the evidence of police who attended and who observed the complainant to be hysterical, alleging that he choked her and making the complaint that the appellant had said he would kill her. The evidence of police also included body‑worn camera footage. There was also contemporaneous photographs of the complainant and her injuries when she was in hospital.

34․On 27 July 2023, the appellant had a meeting with Tim Sharman prior to court. He was told that because of the absence of an interpreter the matter may need to be adjourned, that they needed to go to court to confirm if there was an interpreter, and that winning the case “would be challenging”. On the material before this court on appeal, that assessment appears to have been a reasonable one.

35․They met again at court and Mr Sharman made reference to the evidence that the complainant had injuries on her neck, finger and forehead. The appellant was told to wait outside the court while Mr Sharman appeared before the Chief Magistrate. During the course of discussion with the Chief Magistrate about interpreters, Mr Sharman indicated that the appellant’s English was better than that of the complainant, “but not very good”. He told the Chief Magistrate: “He’ll certainly need assistance when giving evidence. I’d be assisted by having someone when he is hearing the evidence”. When Mr Sharman returned from the courtroom, he told the appellant that the hearing was vacated because there was no interpreter for the complainant and that he would have another meeting with the appellant after he had signed his bail undertaking.

36․As indicated earlier, the prosecutor, Mr Angus Brown, used one of the available interpreters to have a conference with the complainant and also assisted Mr Sharman by getting the interpreter to confirm the interpretation of some writing on the document that Mr Sharman hoped to cross‑examine upon. Mr Brown commented to Mr Sharman that the words on the document were “a little bit better for you than the transcription has them”. Those discussions commenced a process of negotiation about the possibility of a plea of guilty to a lesser range of charges. Mr Sharman established that the prosecution bottom line was that it would accept pleas to two charges: an assault and a choke. Mr Sharman told Mr Brown that he would take that back to his client. Mr Sharman indicated to Mr Brown that he would be more interested in a resolution involving only two assaults.

37․When Mr Sharman met again with the appellant in the courthouse, he raised the potential that the appellant could plead guilty to “some small charges” and have the other charges withdrawn. The appellant said he was told that he would then have a criminal history, but he could stay in Australia and continue his study. He said he was told that it was “very hard to win the matter if it proceeds to a hearing” and that he would “definitely lose the common assault charge … because the scope of the common assault charge is very broad”. He was told that he could lose all of the charges. In substance, this was consistent with Mr Sharman’s evidence. The appellant also said:

If I lose, I will go to prison, but not actually to prison; I will be deported. If I am deported, everything is over. I will never be able to visit other countries. However, if I plead guilty to small charges, I can still continue my dreams.

38․Mr Sharman did not agree that he had put the matter in such black and white terms, but agreed that he had discussed the possibility of a custodial sentence and the possibility of deportation.

39․Mr Sharman asked the appellant to come to his office again at 11:30am, but at that stage the appellant was told to come back at 3pm. A friend of the appellant, Mr Kong, also attended the meeting by telephone for around 10 minutes. Mr Kong did not give evidence on the appeal. The appellant’s evidence was that he was “assisting with communication via telephone”, but it is not clear what was actually involved and Mr Sharman thought he was attending more as an interested friend in order to help with the decision‑making process.

40․The appellant said that Mr Sharman told him that there were “two strategies for this matter, one is to plead guilty to two minor charges, and the other one is to plead not guilty to all the charges and proceed to a hearing”. The appellant was advised that pleading guilty to two charges “will potentially have a Good Behaviour Order as a sentence result, and a Good Behaviour Order is a good result”. He was advised to ask his friends to prepare two or three character reference letters which would be useful for the next day. The appellant said that he understood that those letters could be used for both strategies. He then contacted his friends to help prepare character reference letters.

41․The appellant recalled that on either 27 or 28 July, Mr Sharman showed him pictures of the complainant’s forehead and told him that “[t]his looked ugly, and we could not win the matter because of this injury”. I do not accept that Mr Sharman put the issue in these terms. I do, however, accept that Mr Sharman showed the appellant the photographs and told him that the objectively available evidence would make it difficult to succeed in the case.

42․Mr Sharman gave evidence, which I accept, that a sticking point between the parties was the insistence by the prosecution on the inclusion of a choke charge in any plea by the appellant. The choke charge was clearly a more serious offence because it carried a substantially higher maximum penalty. However, having regard to the expanded definition of “choke” and “strangle” in s 27 of the Crimes Act 1900, the facts that could satisfy the elements of the charge extended to circumstances that were no more serious than a common assault. That was because both of the terms were defined to include applying pressure “to any extent” to a person’s neck.

43․Mr Sharman’s recollection of the individual meetings on 27 and 28 July was less than perfect and he maintained no file notes in relation to those meetings. Neither party sought to obtain from Mr Sharman the email or other communications between him and the prosecutor concerning the possible pleas of guilty and the facts upon which those pleas would be accepted. In the context of the discussions with Mr Brown and the sticking point involving the prosecution’s insistence on a s 28 offence, I accept Mr Sharman’s evidence that he went through the facts with the appellant as part of the process. He said, “[i]t was where we potentially couldn’t resolve because Mr Brown wanted the section 28 charge, the choke, and I wanted an assault, and I needed to explain to Mr Mao, and did, that it was a different charge, but factually there was no distinction between the two”.

44․I accept Mr Sharman’s evidence that, during the course of negotiations with Mr Brown and in discussions with the appellant, he spoke in hypotheticals about what the appellant might agree to plead guilty to. He was careful to ensure that, in what he told Mr Brown and in the instructions that he took about the facts that might be agreed to for the purposes of the plea agreement, he did not compromise his capacity to run a contested hearing if the plea agreement did not proceed and his client maintained a plea of not guilty.

45․Shortly after being told to obtain references, the appellant got in contact with two of his friends, commencing at about 3:30pm on 27 July. In evidence are text message communications between the appellant and a friend called Alan which make reference to charges of common assault and pleading guilty to “assault charges”. The text message communications also indicate that the appellant was aware of possible consequences of convictions for his capacity to study in Canada and to be able to stay in Australia “forever”. Alan also had text message communications with Mr Sharman just before 5pm on the afternoon of 27 July in which, in a response to a request for a list of charges, Mr Sharman said that he could not send such a list but “it’s that he has pushed her and grabbed her around the neck (against the background of her initiating an argument and behaving poorly herself)”. In my view, the unwillingness of Mr Sharman to specify the charges was because he wished to leave open, even at that late stage, the possibility that the prosecution would accept two charges of assault. The facts, however, would remain the same.

46․Communications with a friend called Gio referred to the appellant being charged with “common assault”, and the letter provided includes reference to the author considering that the appellant “is not capable of assaulting another human being”. That is consistent with the instructions that he was given by Mr Sharman, which referred to the appellant “pleading guilty to an assault”.

47․The appellant met Mr Sharman again before court on 28 July in his office. The appellant said that he was at that stage still hesitating about entering a plea. He said that Mr Sharman recommended an adjournment of the matter if he decided to enter a plea of guilty that day. Some contemporaneous text messages indicate that this might have been because the references were from the day before and referred to a plea of guilty that had not yet been entered. The transcript of proceedings on that day indicated that the appellant wished to obtain some material in relation to his personal circumstances.

48․The appellant says that he was then given further advice at court which was recorded as follows:

It is very hard to win the matter if it proceeds to a hearing.

I could lose all charges because of the common assault charge.

If I lose, I will be deported. If I am deported, everything is over.

Mr Tim Sharman then asked me what sports I play. I said basketball. He then said to me that if I have the ball and there is no time remaining, would I take the risk to win or lose or call it a draw? Admitting to small charges is like calling a draw in the game. And after a draw, you can still continue your dreams.

49․Mr Sharman’s evidence was generally consistent with this evidence except that he did not accept that he had put the issue of deportation in such unequivocal terms, and his explanation of the significance of the common assault charge was that the appellant admitted it to police. He agreed that he commonly uses sporting analogies to explain circumstances to his clients.

50․The appellant said that Mr Sharman told him that “he would need to enter a plea to common assault and choking”. The evidence of the appellant was then somewhat unclear. He said:

At this stage, my understanding of choking is a subclass of common assault. Mr Tim Sharman mentioned that he could explain the injury on the neck and finger before, so I was under an impression that choking is a very lenient charge.

51․It is not clear what is meant by this evidence. Plainly enough, the choking offence in s 28 carries a significantly higher maximum penalty than does a common assault. However, having regard to the definition of choking in s 27, it covers a wide variety of offending. At the lowest end of the spectrum, it is no more serious than a common assault.

52․The appellant records the pressure that he was under to make a decision as follows:

Under considerable pressure that I might be deported and with the court was about to start, and with no interpreter present, I was under impression that I had no other choices but to enter a plea of guilty to two charges. So I agreed to enter a plea of guilty. Mr Tim Sharman then informed me that I would only need to say ‘guilty’ in the court room.

53․I accept the appellant’s evidence that he felt under pressure. His comment about an interpreter not being present does not reflect anything raised at the time, but is instead some retrospective commentary in light of his appeal. I do not accept that he had no other choice than to plead guilty. That was clearly not the case. I do accept his evidence if it is intended to convey that, of two very unpalatable options, pleading guilty was the less unpalatable and hence the one he was compelled to adopt. That is consistent with his oral evidence that he felt in the circumstances that there was only one option.

54․The appellant then described the process of nervously entering his plea of guilty personally before the Chief Magistrate and having the matter adjourned until 1 August 2023.

55․Later that day, he spoke by telephone to an officer of ACT Corrective Services in order to allow the preparation of a Court Duty Report. There was a dispute as to whether or not this was done as a result of a meeting in person or by telephone. On this issue, I prefer the evidence of the appellant to the evidence of the officer concerned. The officer, understandably, had no specific recollection of the interview and was reliant upon a note he made at the time which described the interview as “Standdown [appointment] conducted”. He accepted that he commonly does such interviews by telephone. The appellant’s version was corroborated by a text message that he sent to Mr Sharman that afternoon saying that he had done an “audio interview”. However, it is clear, based upon the contemporaneous notes of the corrective services officer, that during the course of the interview reference was made to the distinct offences of common assault and choking which the appellant accepted and indicated that he deeply regretted.

56․At the sentencing hearing on 1 August, an amended Statement of Facts was tendered. The submissions made by Mr Sharman on behalf of the appellant made reference to the background to the altercation, and particularly “his unlawful act in grabbing her around the neck”. Similarly, the prosecutor referred specifically to the “aggravated choke, suffocate, strangle charge” and to the fact that the assault charge was a rolled‑up count. The magistrate made specific reference to the appellant having responded to the complainant’s throwing electrical chargers across the room by “grabbing the victim to her neck with his hands” and her suffering “immediate redness and swelling to her neck”.

57․Following the sentencing, the appellant reported to his friend Alan:

It’s over. I got two small charges with lowest penalty (Good behaviour order for a year) without any fine. The magistrate said good words on me according to my lawyer. He would give me a document with text recording of the hearing, which is in favour of me.

58․In a potentially self-serving recorded discussion with the complainant in January 2024, the statements made by the appellant were not indicative of any miscarriage of justice having occurred through his acceptance of guilt on the choking offence. Rather, they are indicative of a limited recollection of what occurred and a decision being made by the appellant to plead guilty in light of the objective evidence. He said:

One charge is choking and the other is common assault. It means I choked you and pushed you respectively. I have never choked you, right? They said you had marks on your neck. I thought that as long as there were marks, I had to admit it.

59․It also included acceptance of the possibility that he had accidentally touched her neck, and involved saying “I always thought I actually had done these things, but actually I don’t remember them. Mainly because the police has photographs and I couldn’t explain it clearly. It’s useless no matter what I say.”

60․Returning to the critical period on 27 and 28 July, by the time of the conference between Mr Sharman and the appellant which commenced at about 3pm on 27 July, Mr Sharman had identified that the prosecution would accept a rolled-up charge of common assault as well as a single count of choking, and had negotiated or was in the process of negotiating an agreed amended Statement of Facts favourable to the appellant.

61․Mr Sharman explained to the appellant the choice that he had was to plead guilty to a small number of charges with agreed facts or go to trial on all charges with the potential that he would be found guilty on more charges and possibly all charges. Mr Sharman made reference to the sentencing benefits of pleading guilty, including the potential to have the matter dealt with by way of a good behaviour order and the potential of more serious penalties, including custodial penalties, if the matter went to trial and the appellant lost on a larger number of charges. Mr Sharman made reference to the objective evidence available in the prosecution case and said that it would be difficult for the appellant to “win”.

62․So far as the charges to which he would be required to plead guilty, I consider it more likely than not that Mr Sharman explained on 27 July that one of the charges would be a charge of choking and that the other would be a charge of assault. That is consistent with Mr Sharman’s evidence and is also consistent with the fact that, at about 5pm on 27 July, Mr Sharman sent a text message to Alan saying that this was the case. When he sent that message, Mr Sharman still held out some hope that the prosecution would accept pleas of guilty to two counts of assault.

63․On the morning of 28 July, it was explained to the appellant that he would need to enter a plea to a common assault charge and a choking charge. He said at that stage that he thought that choking was a subclass of common assault. Precisely what he understood by the reference to a subclass is not clear. However, it is clear that, by the morning of 28 July (at the latest) he understood that it was open to him to resolve the proceedings on the basis of a plea of guilty to two charges, with the other charges being withdrawn, and that those two charges were described as an assault and a choking. Whatever the taxonomy of the charge, that is, whether or not choking was a subclass of common assault, he clearly understood that the option involved pleading guilty to choking the complainant. It is also clear that the choice was available to him in circumstances where:

(a)there were a total of six charges against him; and

(b)he had been advised that he had a significant risk of being convicted on multiple if not all charges.

64․The appellant felt under considerable pressure in relation to making a decision about what to do. He only ultimately made that decision at court on 28 July. He understood that he was pleading guilty to an assault as well as a choking. He may not have understood the precise taxonomy of the charges or the statutory relationship between a common assault and a choking under s 28, but he did understand that he was pleading guilty to putting his hands around the neck of the complainant.

65․The evidence of Mr Sharman did not extend to saying that he had read out the final version of the agreed amended Statement of Facts to the appellant. He simply could not recall. However, I do accept his evidence that, because a plea to a choke charge was a sticking‑point in negotiations with the prosecution, he went through the facts with the appellant on that issue:

I know that I went through the facts with him because it was a sticking point. It was the issue. It was where we potentially couldn’t resolve because Mr Brown wanted the section 28 charge, the choke, and I wanted an assault, and I needed to explain to Mr Mao, and did, that it was a different charge, but factually there was no distinction between the two.

66․I accept that, in pleading guilty to the charge of intentionally choking the complainant, the appellant was acting contrary to the factual instructions that he had given to Mr Sharman which recognised that, although he might have put his hands on the complainant’s neck, that was not intentional. However, as the decision in Meissner makes clear, a person may plead guilty “upon grounds which extend beyond that person’s belief in his guilt” (at 157). What must be present is a “voluntary and otherwise tolerable acceptance of guilt”: Gomez at [39]. The circumstances in which guilt may properly be accepted include circumstances such as the present, where the appellant knew that multiple charges would not be pursued if he did plead guilty and where he knew that he had a better prospect of a lenient sentence if he pleaded guilty. What is argued in the present case is that this fits into that category in Meissner described as “where the accused did not understand the nature of the charge” (at 157). Having regard to the factual history of the matter, the charging of the accused, the multiple occasions on which the matter was before the court, the multiple occasions on which he dealt with lawyers, the advice given to him by Mr Sharman in relation to the charges that he was facing and the negotiation of the amendment of the agreed facts, the appellant was clearly aware that he was facing a charge of intentionally choking the complainant. He also knew that there was objective evidence of redness on the complainant’s neck to which his attention had been drawn by Mr Sharman. In those circumstances, I do not consider that the accused failed to understand the nature of the offence to which he was pleading guilty.

Conclusions on grounds of appeal

67․Returning to the grounds of appeal, I will address the individual assertions in Ground 1 that are said to give rise to a miscarriage of justice.

68․Ground 1(a): “The appellant had instructed his legal representative that he wanted to proceed to a defended hearing and was not aware that his legal representative had started to negotiate a plea with the prosecution, such as agreeing to the 2 counts the [appellant pleaded] … guilty to”: I accept that Mr Sharman responded to an overture from the prosecutor as to a possible resolution by way of a plea of guilty to some charges prior to obtaining instructions from the appellant that he would agree to such a disposition. That was a necessary part of Mr Sharman’s duty to the appellant and necessary in order for him to be able to give advice to, and obtain instructions from, the appellant in relation to any such prosecution offer. However, the appellant was promptly made aware of the negotiations on 27 July and became aware that he would need to make a choice about what to do.

69․Ground 1(b): “No interpreter was present to assist the appellant”: I accept that no interpreter was present to assist the appellant at any of the meetings between the appellant and Mr Sharman at the hearing on 28 July or at the hearing on 1 August. I accept Mr Sharman’s evidence that he had not been warned of any communication issues by Mr Kelliher, that although English was not the appellant’s first language he had a good command of it, that his correspondence in English was clear, and that Mr Sharman never thought to himself “I can’t speak to this man without an interpreter” (T 39.11). I accept that the appellant’s command of English and his lack of familiarity with Australian court processes and Australian legal culture may have meant that he did not appreciate some of the subtleties of what was said to him. However, as indicated, he clearly understood the choice that he was required to make by 28 July at the latest and that if he was to plead guilty, he would be pleading guilty to both an assault as well as a choking. As a consequence, I cannot accept the submission made on behalf of the appellant that “the whole process” was compromised by the absence of a Mandarin interpreter.

70․Ground 1(c): “The appellant had not been advised as to the best course of action to adopt in negotiating a plea with the prosecution, such as agreeing to the 2 counts the [appellant pleaded] … guilty to”: I do not accept that the appellant was not advised about the best course of action to adopt. He was clearly aware of the difficult choice that he needed to make. He was given sound advice about the strength of the prosecution case and the risks and benefits of agreeing to plead guilty to two of the six charges.

71․Ground 1(d): “The appellant was not aware that he had plead[ed] and found guilty to a charge of chocking as per final agreed facts [sic]”: I do not accept that the appellant was unaware that he had pleaded guilty to a charge of choking. I have found that the final version of the agreed facts in relation to choking was not read out to him, but he was aware that he was pleading guilty on the basis of having grabbed the complainant’s neck and having caused redness and swelling to her neck.

72․Ground 1(e): “The appellant’s plea was unexpected and [he] was under pressure to enter the pleas of guilty”: I have found earlier that the appellant was under pressure at the time that he entered the plea of guilty. I have concluded that pressure was an inevitable result of the need to make a decision prior to the commencement of a contested hearing. Such pressure is commonly a feature of the circumstances in which accused persons find themselves. As the Court of Appeal observed in Gomez at [47]: “It is frequently the case that decisions as to how to plead are made in emotional circumstances and when the accused may feel that he or she is under pressure.” The existence of such pressure as existed in the present case does not indicate that there was a miscarriage of justice. It is not clear what the ground means by referring to the plea being “unexpected”, but I conclude that the plea was not unexpected. It was a matter about which the appellant knew he needed to make a decision from at least the day before.

73․Ground 2: So far as Ground 2 is concerned, I accept that, in light of the appellant’s version of events, he may at trial have established a reasonable doubt as to whether one or both of the alleged chokings did occur or was intentional. However, in circumstances where he understood the nature of the charge to which he was pleading guilty, that is not a basis upon which to conclude that there has been a miscarriage of justice.

74․The conclusions I have set out are sufficient to indicate that I do not accept the submission that the appellant did not understand or appreciate the nature of the charges that he was pleading guilty to. Further, in relation to the submission that the appellant did not “completely understand” what he was pleading guilty to, I have concluded that he understood enough to ensure that his decision to plead guilty to the choking charge did not involve a miscarriage of justice.

75․That is sufficient to indicate that the appeal must be dismissed.

Orders

76․The order of the Court is:

(1)The appeal is dismissed.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: