Mayen v Ryan (No 2)
[2014] ACTSC 33
•5 March 2014
REBECCA ADHIEU MAYEN v TIMOTHY JAMES RYAN (NO 2)
[2014] ACTSC 33 (5 March 2014)
APPEAL AND NEW TRIAL – Appeal and New Trial – Interpreters – The defendant must understand the language of the proceedings in order to receive a fair trial – An interpreter may be required to be provided where the accused cannot adequately understand the language of the proceedings – The requirement of an interpreter being provided applies to sentencing proceedings – Courts have a degree of responsibility to ensure the defendant understands the language of the proceedings – Duty of the courts exists even where counsel waives the need for an interpreter – Failure to provide an interpreter amounted to a miscarriage of the sentencing proceedings – Appeal ground upheld.
APPEAL AND NEW TRIAL – Appeal and New Trial – Pleas – Defendant must personally enter plea – Magistrates Court must comply with Magistrates Court Act 1930 (ACT), s 113 – Failure to do so justified an interference by the Supreme Court – Appeal ground upheld.
APPEAL AND NEW TRIAL – Appeal and New Trial – Excessive or Inadequate Sentence – Whether sentence is manifestly excessive – Whether there was a lack of due regard to the Crimes (Sentencing) Act 2005 (ACT) – Sentence imposed within appropriate range – Sentence not manifestly excessive – Appeal ground not made out.
INTERPRETATION – General Rules of Construction of Instruments – Interpretation of Magistrates Court Act 1930 (ACT) – Statute intends that the defendant is required to enter pleas herself – Appeal ground upheld.
Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 33(1)(m), 102
Justices Act 1886 (Qld), s 145
Magistrates Court Act 1930 (ACT), ss 53, 113, 208(1)(d), 209(1), Pt 3.10, Div 3.10.2
Magistrates Court Practice Direction No 2 of 2007, “A” List Procedures
Sir James Fitzjames Stephen in History of the Criminal Law in England (Macmillan & Co, 1883) vol 1, 275
S Mitchell and P J Richardson Archbold Criminal Pleading Evidence and Practice (42nd ed, 1985)
A B v The Queen (1999) 198 CLR 111
Commissioner of Police Service (Qld) v Magistrate Spencer [2013] QSC 202
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Daly v Barlow [1969] Qd R 237
Ebatarinja v Deland (1998) 194 CLR 444
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Gower v Ross [1959] SASR 278
House v King (1936) 55 CLR 499
Jones v Morley (1981) 29 SASR 57
Kunnath v The State (1994) 98 Cr App R 455
Latter v Davis (1992) 7 WAR 72
Lawrence v The King [1933] AC 699
Lowe v Maher [1990] Tas R 199
Lumby v Cooper [2008] ACTSC 53
Mayen v Ryan [2013] ACTSC 172
Munday v Gill (1930) 44 CLR 38
Murray v Northcott [1990] WAR 219
R vBegum (1991) 93 Cr App R 96
R v Bennett; Ex parte Katelaris (1988) 88 FCR 329
R v Duffield (1992) 28 NSWLR 638
R v Ellis (1973) 57 Cr App R 571
R v Johnson (1987) 25 A Crim R 433
R v Jones (1998) 72 SASR 281
R v Lars (aka Larsson) (1994) 73 A Crim R 91
R v Lee Kun [1916] 1 KB 337
R v Mokbel (2010) 30 VR 115
R v Vernell [1953] VLR 590
R v Wakefield Justices, Ex parte Butterworth [1970] 1 All ER 1181
R v Williams [1978] 1 QB 373
Rowen v Strophair (1966) 61 QJPR 33
Sesar v Haymon (1987) 50 NTR 1
Stefani v John [1948] 1 KB 158
The Queen v C V [2013] ACTCA 22
Todhunter v Zacka; ex parte Zacka [1965] Qd R 515
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 58 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 5 March 2014
IN THE SUPREME COURT OF THE )
) No. SCA 58 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:REBECCA ADHIEU MAYEN
Appellant
AND:TIMOTHY JAMES RYAN
Respondent
ORDER
Judge: Refshauge J
Date: 5 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The conviction and sentence of the Magistrates Court made on 13 January 2011 be set aside.
In lieu, the charge of assault occasioning actual bodily harm on 18 April 2010 be dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
The appellant, Rebecca Adhieu Mayen, was born in Sudan and came to Australia as a refugee in 2005.
On 18 April 2010, she approached another member of the Sudanese community, the complainant, who was standing in the street with two very young children in a pram.
Ms Mayen had a shoe raised above her head and swung it at the complainant. She then took the complainant’s hand, thrust the complainant’s thumb in her mouth and bit it with force, causing the skin to break. She then pulled at the complainant’s necklace, causing it to break and injuring the complainant.
The appellant was offered the opportunity to be interviewed by police on 15 June 2010 and participated in an interview the next day. A Sudanese interpreter was used during that interview.
Ms Mayen was then charged with assault occasioning actual bodily harm and appeared in Court. She initially pleaded not guilty, but, on 13 January 2011, a guilty plea was entered. She was convicted and the Court made a Good Behaviour Order, with a surety in the sum of $1,000.
Ms Mayen wished to appeal against the sentence, but did not commence proceedings within the twenty-eight days specified in s 208(1)(d) and s 209(1) of the Magistrates Court Act 1930 (ACT).
On 14 August 2013, however, I gave Ms Mayen leave to appeal: Mayen v Ryan [2013] ACTSC 172.
THE NOTICE OF APPEAL
Ms Mayen’s Notice of Appeal set out the following grounds:
1.That the Magistrate erred in failing to ensure that the appellant had a fair trial with due regard to her difficulty understanding the sentencing remarks of the [M]agistrate.
2.That the Magistrate erred by failing to ensure that:
(a)The appellant ought to have been provided an interpreter so she could understand what the Magistrate had said to her in her sentencing remarks.
3.That the Magistrate erred by convicting the appellant with[out] due regard to the Crimes (Sentencing) Act 2005, the appellant and the matters alleged against her.
Prior to the hearing, I raised with the parties the question of whether there had been compliance with s 113 of the Magistrates Court Act 1930 (ACT). As a result, Ms Mayen applied for and was granted leave to amend the grounds of appeal to add the following ground:
4.The learned Magistrate recorded a plea to the charge without requiring the appellant personally to plead to the charge.
It was clear, however, that the plea of guilty was not being traversed. The orders sought were
1.That the conviction on 13 January 2013 be set aside and that this matter be remitted to the Magistrates Court for sentence according to law.
2.Any other order this Honourable Court thinks fit.
JURISDICTION
This Court has power, under Pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court; Div 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.
The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence, if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal, rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
In this case, both specific error and manifest excess have, in effect, been argued.
THE FACTS
Ms Mayen knew of the complainant when both were in Sudan, as they apparently lived in nearby villages. They met again and had some contact in a refugee camp where they would meet when collecting water. The complainant came to Australia in 2006, the year after Ms Mayen. She was sponsored by her husband, who lived in Canberra.
They both met again in Canberra and Ms Mayen lent the complainant some household items. The complainant was apparently slow in returning them and the relationship turned sour. Indeed, it became quite nasty – including, Ms Mayen alleges, acts of violence on her, such as when the complainant entered Ms Mayen’s house in the company of other women and beat her.
Ms Mayen was prevailed upon not to report the matter to police, but to attempt a resolution within the community. The President and former President of the Sudanese-Australian Community Association Inc in the ACT reported that a committee of elders was formed to try and resolve the issues between the two women. Ms Mayen agreed to attempt to resolve the dispute by mediation, but the complainant and her friends declined to take part.
The committee attempted to persuade the complainant to participate in a mediation, but to no avail.
Ms Mayen appears to have been subject to ongoing communications from the complainant and her friends which was said to amount to bullying. It also appears that, on the day in question, there was further violence and bullying, and Ms Mayen had had enough.
She approached the complainant with the shoe raised in her hand and she started to hit out at the complainant, who raised her left hand to stop Ms Mayen from striking her. The complainant managed to knock the shoe out of Ms Mayen’s hand and, at this time, Ms Mayen grabbed the complainant’s left wrist, pulled the complainant’s hand towards her mouth, forced the complainant’s thumb inside it and bit hard on it, causing the skin to break. The complainant pushed Ms Mayen away and pulled her thumb out of her mouth. Her thumb was bleeding and the complainant could see bite marks on it.
As the complainant attempted to step backwards away from Ms Mayen, Ms Mayen grabbed the complainant’s shirt and took hold of two gold necklaces around the complainant’s neck, pulling them down so that they hurt her neck and broke. The complainant saw that she was bleeding from the neck. She stepped backwards and fell to her right knee, causing her some pain in that knee. Ms Mayen, who still had hold of the complainant’s shirt, fell on top of her. A number of people came over, and separated Ms Mayen and the complainant.
The complainant later went to the Belconnen Medical Centre, where she was treated for her injuries and, on the following Thursday, went to Belconnen Police Station, where she made a statement and police photographed her injuries.
On 22 May 2010, Ms Mayen attended Belconnen Police Station. She was offered the opportunity to make a statement or participate in an interview but declined to do so, deciding to obtain legal advice. As noted above (at [4]), police attended at Ms Mayen’s home where, with an interpreter, she did take part in an interview with police.
A summons, dated 6 October 2010, was issued, charging Ms Mayen with assaulting the complainant on 18 April 2010 and occasioning her actual bodily harm. It was not explained why it took so long to have the summons issued.
THE PROCEEDINGS
After receiving the summons to appear on 9 December 2010, Ms Mayen sought, and was granted, legal aid. Her allocated solicitor at Legal Aid ACT was unable to appear for her on the first return date of the summons.
Arrangements were made for another solicitor from Legal Aid ACT to appear on that day, but it appears that the solicitor could not make contact with Ms Mayen at court and she appeared for herself. She had been accompanied by another person. She is said to have entered a plea of not guilty. She must have done so herself. Her companion, apparently later at Court, abused the other Legal Aid solicitor for not appearing for Ms Mayen.
That caused some concern for her solicitor and he wrote to Ms Mayen advising of what he described as two “disturbing” aspects, because it was said that the abuse of the other solicitor was “not appropriate”, but more importantly that the plea was inappropriate since Ms Mayen had provided written instructions that admitted the offence.
Whether she did enter a plea of not guilty is actually a little unclear. The proceedings were, as is now the practice of the Magistrates Court, initially listed before the Registrar. See Magistrates Court Practice Direction No 2 of 2007, “A” List Procedures, at [3.7]. He noted on the bench sheet that Ms Mayen was to seek legal advice. He also noted, relevantly, that a “Dinkar interpreter may be required”.
In any event, when the matter returned to court on 13 January 2011, a plea of guilty was entered by her counsel, Mr B Liddy. She was not asked personally to enter a plea.
THE SENTENCING PROCEEDINGS
At the outset of the sentencing proceedings, the issue of Ms Mayen’s understanding of the proceedings was raised. The following exchange occurred:
HER HONOUR: Thank you. There is an issue raised on the bench sheet from the last occasion about whether a Dinka interpreter was required.
MR LIDDY: No, your Honour, we can deal with this today. I’ve had extensive discussions with Ms Mayen. If your Honour is of a view that there may be a problem from your perspective I understand that a linguist has been booked for 12 o’clock. But if we proceed, as I think we can, that’ll be stood down.
HER HONOUR: Mr Liddy, if you’re comfortable and you’ve had an opportunity to speak - - -
MR LIDDY: I’m quite comfortable, your Honour.
HER HONOUR: - - - then I’m happy to progress.
Ms Mayen, you’re charged contrary to section 24 of the ACT Crimes Act 1900 that you, in the ACT on 18 April 2010 assaulted Mary Beek and caused her actual bodily harm. Do you enter a plea of guilty or not guilty?
MR LIDDY: She enters a plea of guilty, your Honour.
I assume by “linguist”, Mr Liddy was referring to an interpreter.
In any event, the sentencing proceedings continued. The Statement of Facts was read out by the prosecutor. I have summarised these above (at [16]-[25]).
Mr Liddy then made submissions on sentence. He referred to the background of the case. In particular, he noted that in the civil strife in Sudan, the village in which Ms Mayen was living was attacked in about 2003, and her husband was killed. She fled to a refugee camp in Kenya, some two days walk away.
She remained in the camp until her cousin sponsored her to come to Australia in 2005.
Mr Liddy referred to the history of the relationship of Ms Mayen and the complainant and noted that Ms Mayen had “done everything to try and keep it out of the courts as part of the community wishes, and get it into perspective, but it hasn’t worked.”
He also referred to a “physical altercation” earlier that day between Ms Mayen and the complainant and her husband, in which Ms Mayen had been struck and bullied again inside the Church. As Mr Liddy put it, “it reached the breaking point and [Ms Mayen] reacted”.
He referred to the significant violence experienced by Ms Mayen, “fairly typical problems with refugees who have been through years of violence”, and of the loss she had suffered, in her own family especially, with the loss of her husband and the destruction of her village.
Mr Liddy referred to the attempts to resolve the dispute between Ms Mayen and the complainant, and how they had not worked. He tendered a letter from the President and former President of the Sudanese-Australian Community Association Inc, which made it clear that the complainant had refused to participate in the resolution process within the community.
He noted that Ms Mayen was a young woman, a widow, with three children aged 13, 11 and 8 and, as he described it, “struggling to come to grips with a new life in our country”.
He said that he had explained to Ms Mayen how the matter could be progressed by obtaining a personal protection order from the court and indicated that he was to assist her to apply for such an order after the proceedings.
The prosecutor submitted that the offence was “objectively serious”. He accepted that there were relevant cultural factors. These must, of course, under s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT), be taken into account. He accepted that it was “a sympathetic story”. Although not expressly sought by Mr Liddy, though he did ask her Honour “to deal with [the offence] with some sympathy”, the prosecutor submitted that “dealing with [the offence] by way of section 17 wouldn’t be appropriate”.
Her Honour then referred to “considering a good behaviour order” with one of the “components” to be counselling, inviting submissions from Ms Mayen’s lawyer. Her Honour did not say whether the good behaviour order was to be part of a non-conviction order under s 17 of the Crimes (Sentencing) Act or following a conviction.
Mr Liddy submitted that it was inappropriate to require the counselling to be provided through ACT Corrective Services, saying, “I don’t think that’s appropriate at all”, though he did not explain why not. He also noted that there was some delay in the prosecution, the offence having been committed in April and Ms Mayen only required to appear in court first in December.
He added that there was “something seriously wrong in the way this has been dealt with”. He conceded that there were actual injuries, as referred to by the prosecutor, but noted the time that the dispute had been going on, the ultimately unsuccessful attempts by the community to resolve it, but the lack of co-operation of the complainant and the earlier acknowledgement of home invasion of Ms Mayen’s residence, not reported to police because Ms Mayen was prevailed upon to try and resolve the dispute through the community.
THE SENTENCE
The learned Chief Magistrate then requested Ms Mayen to stand and addressed her directly when imposing sentence.
Her Honour noted the maximum penalty, which made assault occasioning actual bodily harm a serious offence, and noted the injuries which, in her Honour’s view, made the matter “quite a serious incident”, though “[n]ot at the top of the range of assaults by any stretch of the imagination, but also not at the very bottom of the range of assaults”. The range of penalties, of course, was for the offence charged, assault occasioning actual bodily harm, and not for other, even associated offences, such as common assault.
Her Honour referred to the subjective features referred to by Ms Mayen’s lawyer. Her Honour then said:
But it is also concerning because what it tells me is that the problem is not resolved, and one of the purposes of sentencing is to make sure that there is not a recurrence.
Now, I hear what has been said, it is not just you and I can accept that from the Bar table that this is a problem between yourself and this lady and perhaps the broader community that has been going on for a long time, and that the community and yourself have tried to deal with that in other ways. But now you have come into contact with the law and I have to deal with your issue, in accordance with the law.
...
It seems to me that the most important thing that I have to deal with here is a question of deterrence. That is, to make sure you do not deal with issues in this way in the future and to make sure that other people who are involved realise they cannot deal with issues in this way.
Her Honour then proceeded to record a conviction and said, “I feel I have to do that because of the serious nature of the assault” and added, “but you will be dealt with by way of a good behaviour order”. Her Honour imposed a $1,000 security for the good behaviour order. This, her Honour said, was as a deterrent to make sure that Ms Mayen realised she could not deal with the situation in the way she did.
The prosecutor then inquired as to the term of the good behaviour order and her Honour set a period of twelve months.
THE APPEAL
Grounds 1 and 2
The first two grounds of appeal listed above, at [8]), raise the same issue, and can conveniently be dealt with together.
The High Court has set out, in Ebatarinja v Deland (1998) 194 CLR 444, the principle that a fair trial requires the accused to understand the language of the proceedings. The principle was clear and set out at 454; [27]:
If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial
That may require a witness to be provided with an interpreter as in R v Johnson (1987) 25 A Crim R 433 at 435. The interview of an accused by police may also require an interpreter, and failure to provide an adequate one may create problems: R v Lars (aka Larsson) (1994) 73 A Crim R 91 at 115-7.
Two issues arise here: do these principles apply to sentencing proceedings, and what is the effect of an apparent waiver of the requirement for an interpreter by Ms Mayen’s counsel?
As to the first, I am in no doubt. The principles enunciated by the High Court apply to sentencing proceedings.
To test that, I consider the principles in relation to the presence of an accused in criminal proceedings, since the High Court made it clear that the need to understand the proceedings is related to the need for the physical presence of the accused.
In Lawrence v The King [1933] AC 699 at 708, Lord Atkin said:
[A]n essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence.
There were, however, exceptions. In R v Vernell [1953] VLR 590 at 598-600, Smith J said:
As I understand what was said in [Lawrence v The King [1933] AC 699], the exception there suggested is one arising upon the fulfilment of two conditions, namely, (i) that the accused’s conduct is intended to make trial impossible, and (ii) that it does in fact have that effect. The second of these conditions was not expressly stated, but I take it to be implicit in what was said
...
It might be thought that the decision of the Court of Criminal Appeal in R v Hales, [1924] 1 K.B. 602, is an authority against the existence of any such exception; for it was there stated, without any qualification, that the Court has no jurisdiction to pass sentence in respect of a felony in the absence of the prisoner. As the Privy Council in Lawrence’s Case (supra) treated the passing of sentence and the earlier proceedings on a criminal trial as being governed by the same principle in this matter, it might be argued that Hales’ Case (supra) is therefore an authority that in cases of felony the rule is absolute as regards the proceedings before sentence, as well as the passing of sentence. In my view, however, this argument is not well founded. It is true, I think, that since the decision in Lawrence’s Case (supra) it must be taken that the same principle governs both the passing of sentence and the proceedings before sentence. Indeed, though the question whether the prisoner had to be present at the passing of sentence was in early times treated as depending on procedural rules, the fact that general considerations of policy were involved had become recognized long before Lawrence’s Case (supra): see Chitty, Criminal Law (2nd ed), p 695; R v Bithell (1695), 1 Ld, Raym 47; R v Harris and Duke (1697), 1 Ld Raym 267; R v Templeman (1702) 1 Salk 55; Anon, Lofft 400; R v Hann and Price (1765), 3 Burr 1786. But though the same principle governs, it does not follow that it operates in the same way in both cases. The exception which is here in question can operate only where the two conditions already stated are satisfied; and the second of those conditions can never be satisfied in relation to the passing of sentence. It must always be possible for sentence to be passed in the presence of the prisoner, whatever efforts he may make to prevent it. Accordingly, the absolute language used in Hales’ Case (supra) does not appear to me to be in any way inconsistent with the view that the rule in cases of felony is subject to the exception already stated; and this conclusion is supported by the fact that Hales’ Case (supra) was referred to with approval in Lawrence’s Case (supra).
This approach was followed, though, without the inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; [42]. That is to say, an accused must be present when sentence is imposed unless he or she has waived the right to be there.
Accordingly, I am satisfied that the principle enunciated by the High Court in Ebatarinja v Deland applies also to sentencing proceedings.
As to the second question, about waiver, I refer to what the UK Court of Appeal has to say in R v Lee Kun [1916] 1 KB 337 at 342-3 as follows:
The more difficult question arises when an accused foreigner, ignorant of the English language, is defended by counsel and no application is made to the Court for the translation of the evidence. There is no rule of law to be found in the books on the subject, and as a result of inquiry which we have made since the argument, it has become clear that the practice of the Courts in this respect has varied considerably during the last fifty years. It was stated at the bar by counsel for the Crown that the practice has been for the Court not to require the translation of the evidence unless the accused or his counsel applied for it. There is no doubt that this practice has been followed by some judges; whereas other judges have inquired at the outset of the trial whether the accused or his counsel wished the translation to be made, and if the answer was in the negative they have permitted the trial to proceed without having the evidence interpreted to the accused. Again, some judges have always insisted upon the translation except when the accused or his counsel stated that he did not wish it, and other judges have required translation notwithstanding such a statement. The only practice in this respect upon which there has been uniformity is that whenever any desire has been manifested by the accused or his [or her] counsel for the translation it has always been permitted.
We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him [or her] except when he or counsel on his [or her] behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he [or she] is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him [or her] at the trial. To follow this practice may be inconvenient in some cases and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the interests of the accused which has distinguished the administration of justice in our criminal Courts, and therefore it is better to adopt it. No injustice will be caused by permitting the exception above mentioned.
This approach was fully endorsed by the Privy Council in Kunnath v The State (1994) 98 Cr App R 455 at 459-60.
In R vBegum (1991) 93 Cr App R 96, the UK Court of Appeal had to consider a case where the appellant had been charged with murder. She had very little command of English. She was represented by a solicitor and counsel, who had a number of conferences with her, including with an interpreter.
The Court found, however, that the interpreter was not competent in the language spoken by the appellant. The Court said (at 100) that the investigations subsequently made of the competence of the interpreter in the relevant language
led the solicitor, and eventually Lord Gifford whom she instructed, to the conclusion that this appeal should be launched on the basis that when she pleaded guilty to murder the appellant did so without having had explained to her in the language which she could understand the offences as we know them of murder and manslaughter, and the possibilities open to her having regard to all that had happened in her household of defending herself on the basis, for example, that she was not guilty of murder but possibly guilty of manslaughter for the reason that she was provoked by the behaviour of her late husband into doing what she did.
The main ground of appeal is that the purported plea, trial, conviction and sentence were null and void by reason of the various matters recounted in an advice, which Lord Gifford composed with very great care. I have already referred to much of the information contained in that. He therefore invites this Court to say that the trial was a nullity. At the conclusion of argument late last week we indicated here that we had come to the conclusion that the trial was indeed a nullity and that we would give our reasons for that finding today. In this country now there are people who have come to live from many parts of the globe from what was the old Empire and Commonwealth. There are many languages spoken upon our streets. A number of them contain overtones of the dialects in which those languages are spoken, for example in the great Indian subcontinent. No one should minimise the difficulties which sometimes occur in obtaining the services of an interpreter who is fluent not only in the language of the person who has to be interrogated but who also has knowledge of the dialect in which that language is spoken. That is merely an indication of the very great care which must be taken when a person is facing a criminal charge to ensure that he or she fully comprehends not only the nature of the charge, but also the nature of the proceedings which will ensue and of the possible defences which are available having regard to the facts of the case ....
It has been said on a number of occasions here that unless a person fully comprehends the charge which that person faces, the full implications of it and the ways in which a defence may be raised to it, and further is able to give full instructions to solicitor and counsel so that the court can be sure that that person has pleaded with a free and understanding mind, a proper plea has not been tendered to the court. The effect of what has happened in such a situation as that is that no proper trial has taken place. The trial is a nullity. It must be appreciated that the court is very much in the hands of solicitors and counsel when a plea is being tendered to an indictment. The court is entitled to feel confident that before that plea has been tendered solicitors and counsel have satisfied themselves that the person arraigned fully understands what is going on, and that that person has before that time given full and intelligible instructions so that counsel has in the end been able to satisfy himself that the person is able to make a proper plea.
That, of course, was a case where what was at issue was the validity of the plea.
Here, what is at issue is the question of Ms Mayen’s understanding of the proceedings themselves. That is also required. Indeed, as R v Lee Kun makes clear, the court has a degree of responsibility for that, not just counsel. As R v Begum also makes clear, the attitude of counsel and solicitor does not necessarily relieve the court of that duty in order to ensure that a defendant is fully understanding of what takes place in court.
In sentencing proceedings in this jurisdiction, there are further reasons for concern. Ms Mayen was convicted and a Good Behaviour Order made. When such an order is made, s 102 of the Crimes (Sentencing) Act requires the following:
102 Good Behaviour orders—explanation to offenders
(1)The court must ensure that reasonable steps are taken to explain to the offender in general terms (and in language the offender can readily understand)—
(a)the nature and conditions of the good behaviour order; and
(b)the offender’s good behaviour obligations under the Crimes (Sentencing Administration) Act 2005; and
(c)the consequences if the offender breaches the obligations.
...
(2)Failure to comply with this section does not invalidate the good behaviour order.
The legislative intention is clear that an offender is entitled to have the sentence explained to him or her in language that he or she can readily understand. While the failure to do so does not invalidate the sentence, the section sets out the expected standard that should apply.
In my view, the section does not override the common law but complements and supplements it.
Here, it could be said that Ms Mayen’s counsel had waived the need for an interpreter. There were, however, at least three indications that should have put the court on notice that further inquiry may be needed to discharge its duty to be satisfied that the proceedings should continue without an interpreter. The first was the annotation on the bench sheet of the Registrar’s comment. The second was the reference to “a linguist” attending at 12 noon. If arrangements had been made for the attendance of an interpreter, there would have to be good reasons (and not just court convenience) for proceeding in the absence of that person.
Thirdly, the prosecutor, in reading the Statement of Facts, said:
The defendant participated in this digital record of interview at about 2.30 pm on 16 June 2010. A Sudanese interpreter was used for that interview.
In my view, the sentencing proceedings miscarried and grounds 1 and 2 are made out. I shall deal below with the consequences of this finding.
I note for the record that an interpreter was available at all times during the appeal.
Ground 4
Relevant to the issue, however, is the added fourth ground of appeal.
When Ms Mayen was charged by the learned Chief Magistrate, she did not enter the plea of guilty herself; it was entered for her, by her counsel. Quite apart from whether that was a matter of irregularity or invalidity, it deprived the learned Magistrate of the opportunity to assess, to at least some extent, the ability of Ms Mayen to understand English.
This matter was, however, additionally relied upon in the added, fourth, ground of appeal.
It has, of course, always been required that, on arraignment, the accused must enter the plea himself or herself. This was stated unambiguously by Edmund Davies LJ for the UK Court of Appeal in R v Ellis (1973) 57 Cr App R 571 at 573, where his Lordship said that
in the absence of special features of that kind [the accused being deaf or dumb or insane or refusing to plead] he [or she] must be called upon to plead and he [or she] must personally answer to the plea.
Though this principle was moderated in R v Williams [1978] 1 QB 373, the Court there re-iterated (at 378) that a plea of guilty must be entered by the accused “himself”.
The position in summary courts is, it appears to me, to be similar. In R v Wakefield Justices, Ex parte Butterworth [1970] 1 All ER 1181 at 1182, Lord Parker CJ, with whom Willis and Bridge JJ agreed, quashed the conviction entered when the appellant’s solicitor told the court that he pleaded guilty and he was not asked himself.
In R v Duffield (1992) 28 NSWLR 638, Kirby P, with whom Wood and Sharpe JJ agreed, had to deal with a plea entered in committal proceedings. His Honour (at 655) referred to what Sir James Fitzjames Stephen in History of the Criminal Law in England (Macmillan & Co, 1883) vol 1, 275 said, that
by ancient English criminal procedure, at the trial, the plea has to be taken from the accused person ‘orally in open court’.
His Honour considered that this was a desirable course of action in committal proceedings, especially in circumstances where “the plea is proffered following ‘negotiations’ between the prosecutor and those representing the accused”. His Honour continued (at 656):
A public acknowledgement of a plea of guilty from the lips of the accused person may help ensure against later assertions of a lack of understanding, confusion or actual misrepresentation of instructions given to legal representatives.
The matter is not free from direct authority, however, and it appears that the weight of authority requires a plea, especially a plea of guilt, to be entered orally in the Magistrates Court directly by the defendant.
In Sesar v Haymon (1987) 50 NTR 1, Rice J considered an appeal from a court of summary conviction by an appellant who had been found on premises without lawful excuse and was sentenced to one months imprisonment.
One of the grounds of appeal was that the learned Magistrate recorded the plea of guilty “without reading the charge to the appellant and requiring the appellant personally to plead to the charge”. Rice J upheld the appeal.
His Honour acknowledged that counsel could enter a plea for a defendant, by virtue of a provision in the relevant statute that is in similar terms to s 53 of the Magistrates Court Act 1930 (ACT).
That provision is in the following terms:
53 Conduct of case generally
(1)The informant may –
(a)conduct his or her case personally or by a lawyer; and
(b)examine and cross-examine the witnesses giving evidence for or against the informant; and
(c)if the defendant gives any evidence or examines any witness about anything other than general character – call and examine witnesses in reply.
(2)The defendant may –
(a)fully answer and defend personally or by a lawyer; and
(b)give evidence; and
(c)examine and cross-examine the witnesses giving evidence for or against the defendant.
Nevertheless, his Honour held that, because of a further section in relevantly similar terms to s 113 of the Magistrates Court Act, it was mandatory, where the defendant is present, that he or she must be asked personally to plead.
Section 113 is in the following terms:
113 Proceeding at hearing on defendant’s confession
If the defendant is present at the hearing, the substance of the information must be stated to the defendant, and the defendant must be asked if the defendant has any cause to show why the defendant should not be convicted or why an order should not be made against the defendant, and if the defendant has no cause to show, the court may convict the defendant, or make an order against the defendant accordingly.
His Honour continued (at 5):
I think it is timely that this court should lay down an inflexible rule of practice, namely that in courts of summary jurisdiction (just as in the criminal jurisdiction of this court), whether an accused person is represented or not, the charge should be read over to an accused person on every occasion no matter how seemingly trivial the offence, thereby ensuring that there is no question about the plea being clear and unequivocal and emanating from the mouth of the person charged: cf James Ellis (1973) 57 CAR 571 at 573-5, which, although dealing with procedure on arraignment, highlights the views I have sought to express.
Wallace J followed this decision in Murray v Northcott [1990] WAR 219 at 223, noting that this was the approach in other jurisdictions, where the same result had been reached in Gower v Ross [1959] SASR 278 at 282; Rowen v Strophair (1966) 61 QJPR 33. See also Lowe v Maher [1990] Tas R 199 and Latter v Davis (1992) 7 WAR 72.
This approach seems to me to be implicit in the decision in this court in R v Bennett; Ex parte Katelaris (1988) 88 FLR 329 at 345 where Gallop J, often referring to a passage from S Mitchell and P J Richardson, Archbold Criminal Pleading Evidence and Practice (42nd ed, 1985) said
It is quite clear on any reading of the transcript that the [defendant] never pleaded guilty to any offence in a clear and unambiguous way and that the magistrate nevertheless recorded please of guilty to each offence ... At no stage did the [defendant] plead guilty in clear and unambiguous terms.
While the point at issue in that decision was a different one, it seems to me that it supports the authorities to which I have already referred.
In my view the legislation requires the defendant, if present in court, to enter a plea personally. In this case, that was not done, and this deprived the learned Chief Magistrate of the opportunity of hearing some further information from which to discharge the obligation set out in R v Lee Kun and under s 102 of the Crimes (Sentencing) Act of deciding whether the court thinks that it is “fit to permit the omission [of the requirement for an interpreter]”.
The question is as to the consequences of such a failure to take the plea personally from the defendant. Applying Sesar v Haymon, and the other cases following it, would seem to result in the proceedings being held to be a nullity as the jurisdiction of the court had not been enlivened.
That may well apply in other cases. It would especially be applicable where there is any doubt about the genuineness of the plea. Thus, in Murray v Northcott Wallace J noted that “[t]he appellant has sworn that he did not instruct counsel to plead guilty on his behalf”.
In Lowe v Maher, Cox J considered the position where the appellant, apparently, his Honour held, had properly entered a plea of not guilty when originally required to plead but subsequently a plea of guilty was entered by his counsel. Though referring to relevant passages in Sesar v Haymon, his Honour held that there was no basis to set aside the proceedings.
In Queensland, the authority of Rowen v Strophair was doubted in Daly v Barlow [1969] Qd R 237, though the proceedings there were somewhat different, being in an administrative tribunal.
More recently, the issue has been considered by Henry J in Commissioner of Police Service (Qld) v Magistrate Spencer [2013] QSC 202. His Honour had to consider s 145 of the Justices Act 1886 (Qld) which is relevantly in the same terms as s 113 of the Magistrates Court Act.
His Honour considered he was bound by the decision of the Full Court in Todhunter v Zacka; ex parte Zacka [1965] Qd R 515 (Todhunter) where a plea had not been taken in accordance with s 145. The Full Court considered that there had not been a fundamental defect in procedure that was fatal to the validity of the proceedings.
Henry J also noted that Andrews DCJ had distinguished Todhunter in Rowen v Strophair on the basis that Todhunter was dealing with an irregularity in the taking of evidence. His Honour pointed out, however, that, in fact, one of the irregularities was the failure to comply with s 145 itself. That is clear from the grounds of appeal (at 519) and the transcript of the proceedings (at 519-20) recounted by Douglas J.
The Full Court, in Todhunter, distinguished the reasoning of the English Kings Bench Division in Stefani v John [1948] 1 KB 158 where Lord Goddard CJ, with whom Humphreys and Croom-Johnson JJ agreed, held that summary jurisdiction derives from statute and that where the justices did not comply with the statute they have no jurisdiction to adjudicate.
In the Full Court, Hanger J, with whom Sheehy ACJ agreed, preferred the approach of the High Court in Munday v Gill (1930) 44 CLR 38 at 80-1, where Gavan, Duffy and Starke JJ, said
No definite principle can be extracted from these cases. In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere. Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing. The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances.
Henry J referred to Daly v Barlow and added (at [54]):
The remarks of Hoare J ought not be understood as encouraging waiver of compliance with s 145. His Honour was merely explaining that if compliance with s 145 has been waived there is no reason why the non-compliance will of itself render the ensuing proceeding a nullity. However, as was emphasised by the High Court in Munday v Gill, the fact of waiver is not conclusive. Waiver will not eliminate other potential reasons why a conviction in the wake of non-compliance with s 145 may be interfered with. A risk with waiving compliance with s 145 is not that the non-compliance will of itself negate the outcome of the proceeding but that it will obscure some other feature that will.
His Honour then continued (at [55]-[57]):
[55]The mischief which s 145 is most obviously directed at avoiding is wrongful conviction resulting from a misunderstanding of the substance of the charge and whether the defendant intends to plead guilty or not guilty to it. For example, to draw upon Hoare J’s reference to a defendant saying, ‘I know precisely what the charge is’, a defendant may think he or she knows what the charge is, but be wrong. Such misunderstanding may only become known belatedly, if at all. At worst, they may result in a miscarriage of justice with the defendant being wrongly convicted and punished. Even if discovered in the course of the proceeding, in time to stop and start again, such misunderstandings will still result in a waste of court time and resources, which compliance with s 145 would have prevented.
[56]Despite repeated judicial emphasis of the desirability of compliance with s 145, a perception may linger in the busy jurisdiction of the Magistrates Court that time consuming compliance with s 145 is less important where defendants are legally represented because there is little risk of the misunderstanding and associated injustice which s 145 is obviously directed at minimising. However, legal representatives are not immune from misunderstanding and in any event the statutory procedure set out in s 145 does not discern between whether or not a defendant is legally represented. The safest and correct course, even where defendants are legally represented, is to comply with the statutory procedure.
[57]In the present matter his Honour was correct in concluding s 145 had not been complied with but erred in concluding that the non-compliance with s 145 of itself meant the court had no jurisdiction to convict and that its orders were a nullity.
(footnotes omitted)
I note that Henry J made no reference to Sesar v Haymon or the other decisions considering it. Rice J, in Sesar v Haymon, made no direct reference to Todhunter, though he cited the passage from Rowen v Strophair in which Andrews DCJ relied on it to support the approach his Honour took. As Henry J pointed out, that did not correctly apply Todhunter. Ria J did not address that issue but simply relied on what Andrews DCJ had said.
It seems to me that, as a single judge, I should not depart from a decision of an intermediate court of appeal in a case of relevantly uniform legislation unless I am convinced that it is incorrect. See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-2; [135].
Thus, although I find the reasoning of Rice J in Sesar v Haymon sound, I am not so convinced that the Full Court in Todhunter is incorrect such that I should not follow it.
Nevertheless, like Henry J, it seems to me that the Magistrates Court should comply with s 113 of the Magistrates Court Act as construed by Rice J. In this case, I consider that the failure to comply was an irregularity which, when added to my findings on Grounds 1 and 2 justifies interference.
Ground 3
The other ground really amounted to a claim that the sentence imposed was manifestly excessive.
I would not have imposed the same sentence. That, however, is not the relevant test. See House v King (1936) 55 CLR 499 at 505. I must find error, including by inference on the basis that the sentence is manifestly excessive. I could not so find, as it seems to me that the sentence imposed by the learned Chief Magistrate was within appropriate sentencing range.
Conclusion
In my view, grounds one, two and four of the appeal are made out. In the circumstances, the appeal should be upheld.
As a result of my findings on the grounds of the appeal the sentencing discretion is, therefore, enlivened, unless I consider the same sentence should be imposed. See A B v The Queen (1999) 198 CLR 111 at 160; [130]. I do not consider, in the circumstances, that the same sentence should be imposed.
Despite the order sought that the proceedings be remitted to the Magistrates Court, I was invited to re-sentence Ms Mayen and I will do so.
Resentencing
I take into account Ms Mayen’s plea of guilty, though not made at the earliest time. It is clear that cultural factors played a high role in her situation, including her understanding of the law in the new land which she now makes her home, and that this appears to have been relevant to the question of the plea, which would have been entered earlier had there not been a problem with her legal representation.
I take into account the cultural circumstances and antecedents (s 33(1)(m) of the Crimes (Sentencing) Act) and the relationship with the victim which shows a degree of provocation (s 33(1)(q) of the Crimes (Sentencing) Act.
I take into account the fact that she has apparently no prior convictions as no criminal record was tendered. I take into account her personal circumstances, including her history of how she came to be in Australia and her circumstances here. I note that she is 40 years old.
I take into account that she tried, with the help of her community, to resolve the problems she has had with the victim and the inappropriate way in which the victim has responded, both by decisions not to participate in the resolution process but also by continuing the bullying of Ms Mayen.
As required, I take into account Ms Mayen’s age, character and antecedents. “Antecedents” is a wide term, not limited to prior convictions as pointed out by King CJ, with whom Jacobs and Mohr JJ agreed in Jones v Morley (1981) 29 SASR 57 at 63. I have set out much of this above. There is nothing particularly relevant in her health or mental condition, other than the obvious effect of the horrendous war and refugee experiences she has suffered and, more recently, the bullying she has experienced, to which my attention was drawn.
The offence was a serious one; the legislation, which prohibited the offence by s 24 of the Crimes Act 1900 (ACT), provides for a maximum penalty of five years imprisonment. There were two places where Ms Mayen broke the skin of the victim, causing her to bleed. There clearly was some pain caused and the incident took some little time. The learned Chief Magistrate assessed it as “[n]ot at the top of the range of assaults by any stretch of the imagination, but also not the very bottom of the range”; in my view that was a fair assessment. It was, however, not so serious as to prohibit the making of a non-conviction order.
I have also described above (at [36]-[41]) the circumstances under which the offence was committed which, in my view, were extenuating.
I note, also, that the conviction has created difficulty in Ms Mayen obtaining employment. This is a relevant factor, though not the only relevant matter, as noted by Penfold J in Lumby v Cooper [2008] ACTSC 53 at [28]-[38]. In The Queen v C V [2013] ACTCA 22 at [52], the Court of Appeal accepted that the possibility that a conviction may have detrimental effects on an offender’s employment is a relevant matter on sentence, including as to whether to make a non-conviction order.
In the circumstances, I am satisfied that the character, age, antecedents and the extenuating circumstances in which the offence was committed and also her personal circumstances means that, despite the seriousness of the offence, an order under s 17 of the Crimes (Sentencing) Act is appropriate in sentencing Ms Mayen.
While a good behaviour order would ordinarily be appropriate, I note that the good behaviour order made by her Honour expired before the appeal was commenced. There is, accordingly, no need for a good behaviour order. The order to be made, therefore, is under s 17(2)(a) of the Crimes (Sentencing) Act. There seems no occasion to make any ancillary order under s 18 of the Act.
I shall order accordingly.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 March 2014
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Prail Lawyers
Counsel for the Respondent: Ms Melanie Moss
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 23 September 2013
Date of judgment: 5 March 2014
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