Marie v Police No. Scciv-03-1125

MARIE v POLICE
[2003] SASC 418
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged with having between 27^th October 2000 and 9^th November 2000 received a television set of the value of $199, the property of Target Australia Pty Ltd knowing it to have been stolen, contrary to s 196 of the Criminal Law Consolidation Act 1935. He appeared in the Magistrates Court at Mount Gambier on 10^th May 2001 and pleaded guilty. He was sentenced to imprisonment for two months, which sentence was suspended upon his entering into a bond in the sum of $100 to be of good behaviour for a period of 18 months. He appeals against the conviction.
The case against the appellant is that the television set, which is a hand-held portable television set, was stolen, along with other items, by thieves who broke into the Target store at Mount Gambier during the night of 27^th and 28^th October 2000. Later, police received information and went to the appellant’s house at Mount Gambier and located the television set during the course of searching the premises. The appellant was arrested and interviewed. He told the police that he purchased the television set from a man outside the Mount Gambier Post Office. He said that the man had two such television sets in his backpack. He paid $100 for the television set and thought that the price was fair although about half of its value. He denied that the television set was stolen and declined to answer further questions.
The appellant instructed a solicitor at Mount Gambier. He appeared in the Magistrates Court on five occasions. On 5^th April 2001 he and his solicitor were informed that if the matter was not resolved before the next date for hearing on 10^th May 2001, it must be listed for trial.
When the matter was called on for hearing on that date, the appellant pleaded not guilty to the charge. The solicitor informed the learned Magistrate that he was no longer acting for the appellant. I was informed that the appellant had not met a small financial obligation of $30 under a grant of legal aid. The learned Magistrate refused to again adjourn the matter and the solicitor sought leave to withdraw, which was granted. The appellant was then unrepresented.
After the solicitor withdrew, the appellant pleaded guilty. He was convicted and the sentence was imposed. It is the circumstances in which he changed his plea that are the basis for this appeal.
According to the appellant, the learned Magistrate asked him what he wanted to do about the charge. He said he wanted to plead not guilty. The learned Magistrate asked what was his explanation. The appellant told him that he purchased the television, as alleged, from a man called Ricky. He paid $100 because he thought the television was second-hand. The learned Magistrate asked what was Ricky’s last name. According to the appellant, the learned Magistrate then said that his defence “sounded like the oldest story in the book” and that he should go outside the courtroom and think about it because if he was found guilty he “could get locked up”. The appellant states that he left the courtroom. He did not want to go to prison and when the case was called on again he pleaded guilty. He says that he did not know that he could appeal until recently.
The 10^th May 2001 was a general day for the learned Magistrate at Mount Gambier. 108 cases were listed before him, including the case involving the appellant which was approximately in the middle of the list. I was informed that it is likely that other cases may also have been listed if persons had been arrested during the previous night and during that day. The refusal to again adjourn the matter is difficult to understand. The case was called on in the middle of a long and very busy list and could not proceed as a trial. Also, it is likely that the prosecutor was unable to proceed with a trial.
As is to be expected, the learned Magistrate and the prosecutor do not now remember the appellant or anything about his case. Indeed, the prosecutor, attempted to reconstruct what happened when the appellant appeared before the learned Magistrate and in doing so stated that the solicitor made submissions on behalf of the appellant. Her reconstruction indicates that the matter proceeded as a plea of guilty in an unremarkable manner. I accept that her recollection is incorrect.
After having heard argument, I adjourned the hearing of the appeal and sought a report from the learned Magistrate. There was delay due to his being ill and away on leave. He reported that he had no memory of the matter. He also attempted to reconstruct what occurred. He was provided with a copy of the affidavit of the appellant setting out his version of what happened. He said that it appeared that after the solicitor withdrew, he treated the matter as a pre-trial conference and his procedure in such circumstances usually followed the following pattern:
“h I explain the elements of the offence to the defendant.
hI ask the prosecutor to briefly outline the facts and the defendant’s prior criminal history, if any.
hI explain a potential range of penalties.
hI advise the defendant that there may be a discount for pleading guilty. In some cases I have said that a plea of guilty may help to avoid an immediate custodial sentence. I do not know whether I said that to Mr Marie.”
Following receipt of that report, the appeal was again listed for hearing. The appellant appeared and gave evidence. He said that he pleaded not guilty after the solicitor withdrew and told the learned Magistrate his version of how he came into possession of the television set. He expanded on his version of events by telling the learned Magistrate that he went to Mount Gambier for the weekend. He caught up with one of his friends whose name is “Ricky” who he knew through his sister, although he did not know him well. He showed two television sets to the appellant which he offered to sell for $100 each. He purchased one of them which he said looked second-hand. He said that he told these matters to the learned Magistrate who responded in the way I have earlier related. He said that he did not understand much of what the learned Magistrate said, but he went back into the courtroom and pleaded guilty because he did not want to be sent to gaol. He said that the learned Magistrate did not explain the charge of receiving to him.
According to the appellant, the solicitor did not explain the charge of receiving to him before 10^th May 2001 and he withdrew from the case. He said that it was not until he saw his present solicitor on 2^nd July 2003 that the charge was explained to him. In cross-examination he said that it was not until he swore an affidavit in support of this appeal on 1^st September 2003 that he understood the explanation of his present solicitor of the elements of the crime of receiving.
The appellant said, in evidence, that he was frightened by what the learned Magistrate said to him and pleaded guilty to avoid going to gaol. He said that there were scratches on the television and it looked second-hand, although in good condition. He trusted the man he knew as Ricky because he was known to his sister. He did not have any suspicion that the television set had been stolen.
In essence, the grounds of appeal are that, in the circumstances, the conviction of the appellant for receiving is a miscarriage of justice because the appellant was unrepresented, the learned Magistrate did not give to the appellant the advice which he should have been entitled, the appellant was not guilty of the charge and the plea of guilty should not have been made or accepted.
This appeal could not proceed without an extension of time within which to appeal. The appeal had to be instituted within 14 days of the conviction: R96C.02 of the Supreme Court Rules 1987. The Notice of Appeal was not lodged until 1^st August 2003, nearly two years and three months out of time. The appeal has been lodged because of the conviction for offences under the Social Security Act 1991 (Cth). If the conviction for the offence of receiving stands, the sentence will also remain and the suspension of the sentence may be revoked in consequence of the conviction for the offences under the Social Security Act. These offences were committed over a period of time commencing about five months after the conviction for receiving. The appellant pleaded guilty to those offences and was sentenced to imprisonment, which sentence was also suspended. An application has been lodged seeking revocation of the suspension of the sentence imposed upon the conviction for receiving.
An application for an extension of time where the delay was about two years and six months was considered by Lander J in Yates v Police [2000] SASC 326. He accepted that the power to extend the time within which to appeal is to be found in R 3.04(d) of the Supreme Court Rules but would not be exercised unless the justice of the case so requires. The discretion to extend the time exists for the sole purpose of doing justice. I respectfully agree with those observations. Lander J went on to say that four matters had to be considered before the Court could exercise the discretion; the length of the delay, the explanation for the delay, any prejudice suffered by the other party and whether there are some prospects that the appeal will be successful and in doing so he followed his own decision in Gikas v Police (1999) 202 LSJS 301 and the cases to be referred in his reasons for judgment. In that case he said that it is not the case that any appeal which is likely to succeed must attract an extension of time.
It is convenient to first consider whether there is merit in the appeal.
At the time of his plea of guilty the appellant was aged 22 years. He was educated to Year 11. Having heard him give evidence, I formed the view that he is probably of average intelligence and had little understanding of legal matters and court procedure when he appeared before the learned Magistrate. It was indeed unfortunate that his solicitor saw fit to withdraw from the case at that time. The learned Magistrate was conducting a general court day. The appellant wanted to plead not guilty. As I have said, there was no prospect of the trial proceeding on that day. If the solicitor had remained whilst the plea of not guilty was entered, it is likely that a date for trial would have been fixed and an enquiry by the learned Magistrate into the nature of the defence would not have occurred. The solicitor would not have been required to have given much time to the matter on that occasion and the appellant could have been given further time to meet his obligation under the terms of the grant of legal aid. As has been seen, the appellant was left without legal representation. Upon pleading not guilty, the learned Magistrate decided to make enquiries of him.
Having heard his evidence, I am satisfied that at that time the appellant did not understand the elements of the offence of receiving, particularly the mental element which the prosecution had to prove beyond reasonable doubt, namely that at the time he came into possession of the television set he knew that the television set was stolen. I make these observations based upon his evidence. Whether he is guilty of the charge depends upon all relevant evidence and I do not mean to give any indication about whether I think he did, or did not, commit the offence, only that at the time he was before the learned Magistrate he had a basis for the plea of not guilty.
The obligation of the learned Magistrate at the time he received the plea of not guilty is clear. The matter should have been listed for trial and if there was to be a pre-trial conference, the appellant should have been informed and given the opportunity to prepare for it and to obtain legal representation. As he was suddenly unrepresented, he should not have been required to participate in a pre‑trial conference immediately and to state his defence. The learned Magistrate should have discharged his obligation as discussed by Wells J in Cooling v Steel (1971) 2 SASR 249. In relation to an unrepresented defendant he said at 250-251:
“When the defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. For example, if the charge is receiving stolen property it should be explained (inter alia) that a plea of guilty implies that the defendant was aware that the property was stolen at the time it was received into the defendant’s possession; where the charge is stealing, emphasis could well be placed on the allegation that the property was taken fraudulently or dishonestly with the intention of permanently depriving the owner of the property; where the charge is driving in a manner dangerous to the public, the defendant should be made to understand that the charge alleges that his manner of driving in the circumstances was such that an unwarranted, an unreasonable, risk was created to the life and property of members of the public. When the explanation of the charge has been made, the court should satisfy itself that that explanation has been understood.
Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.” (my emphasis)
I need not mention the other important matters mentioned by Wells J.
Obviously a magistrate should not pass judgment on an explanation given by a defendant. There should be no comment about it and certainly no decisive comment or criticism. On the appellant’s version, the learned Magistrate did not give him the required assistance and the conviction should not stand unless the defence was plainly untenable. If the appellant had told the full story to the learned Magistrate, it could not have been regarded as “the oldest story in the book”. He purchased the television from someone whom he knew but not by his full name. In the course of preparation for trial, he may have been able to ascertain the full name and whereabouts of that person and perhaps assisted the police by disclosing the information. The result of a properly conducted pre-trial conference may have been that the charge was withdrawn.
The learned Magistrate should not have made any pre-judgment about the sentence which could be imposed and certainly not without having adequate information about the circumstances of the offence and the appellant. A sentence of imprisonment for a young man for such a crime could be regarded as excessive and it could not be regarded as inevitable.
Of course, as I have said, the learned Magistrate now has no memory of this matter and it appears that the prosecutor also has no memory. Only the appellant’s version is before the Court on this appeal.
Having seen and heard him give evidence, I have accepted that what he described as having occurred probably did occur, although perhaps not exactly as he has recalled. I do not think that, in all of the circumstances, justice was done. I think it is likely that he was deflected from his course of defending the prosecution case out of fear of going to gaol with the consequence that he may have pleaded guilty to an offence which he did not commit.
I now turn to the other matters to be considered when exercising the discretion to extend the time within which to appeal.
The period of delay is very long. However, I accept the appellant’s evidence that he was not aware that he could appeal against the conviction until he consulted his present solicitor shortly before the Notice of Appeal was lodged. Indeed, it is likely that he did not see any practical need to appeal until he was in breach of the bond and the application to revoke suspension of the sentence had been made. I think the reason for the delay is satisfactorily explained.
The length of the delay causes concern. It is in the interests of the administration of justice that the criminal proceedings should be heard and determined expeditiously and once and for all. I have kept in mind the observations of Lander J in Gikas that if a party could bring an appeal at any time, there would be “procedural anarchy” which would be disruptive to the administration of justice and prejudicial to the prosecuting authorities: 304. They are matters of considerable importance and often, if not usually, carry the day when exercising the discretion. A party would not usually be permitted to appeal after extensive delay merely because overturning a conviction would be desirable because of some life event occurring long after it was imposed. However, the predominant matter is whether there are “substantial grounds for apprehending a miscarriage of justice”: R v Trotter (1979) 22 SASR 64 per Walters J at 65. If they exist, even extensive delay should not be a bar to the exercise of the discretion in favour of the proposed appellant as every opportunity must be given to redress injustice in circumstances where there are substantial grounds for apprehending that it has occurred.
Lastly, I consider any prejudice which may be suffered by the Police in prosecuting the appellant should the appeal be allowed and the matter proceed to trial. It is likely that the prosecution case will proceed only with the evidence of the police officers who found the television set in the possession of the appellant and who questioned him. I do not know if the television set is still available to be admitted into evidence should that course be desirable, but I expect that the police officers and the appellant, will be able to give a reasonably accurate description of it. The real issue at the trial is likely to be the state of mind of the appellant when he came into possession of the television set and although its condition may be relevant to that matter, it will not be conclusive evidence about it. I do not think any apprehended prejudice to the Police should stand in the way of the exercise of the discretion in favour of the appellant to extend the time within which to appeal.
In my view, there are unusual features of this case which justify extending the time within which to appeal. It is reasonable to apprehend that the plea of guilty was not a true admission of the elements of the charge and was induced by the learned Magistrate by the fear of going to gaol if the plea was not entered. The appellant was unrepresented at the time. He had pleaded not guilty and changed his plea after what the learned Magistrate said to him. The appellant did not know that he could appeal and had no practical reason to do so until he was convicted of the social security offences.
I extend the time within which to appeal until and including 1^st August 2003 when the Notice of Appeal was lodged.
I have already expressed my views about the appeal. I appreciate that a person who is not guilty of a charge may choose to plead guilty for a variety of reasons, such as to avoid expense of a trial, publicity or delay or protect someone else and nevertheless the plea must be regarded as an acknowledgement of all of the elements of the charge: Meissner v The Queen (1994-1995) 184 CLR 132, but that is not the position in the present case. The plea was entered in circumstances of ignorance, lack of information from the learned Magistrate and fear of going to gaol for the reasons I have mentioned. The appellant was not given the assistance which should have been given to him as an unrepresented defendant.

The appeal is allowed. I am satisfied that he has discharged the onus which rests upon him. I set aside the conviction and the sentence. I also set aside the plea of guilty and I remit the complaint to the Magistrates Court for hearing by another magistrate.

[2003] SASC 418

19 December 2003