Moore-McQuillan v Police No. Scgrg-97-240 Judgment No. S6535

[1998] SASC 6535

MOORE-MCQUILLAN v POLICE

Magistrates Appeal
Duggan J

The appellant pleaded guilty in the Adelaide Magistrates Court to three counts of failing to comply with a restraining order, a further count of assaulting a police officer in the execution of his duty and a count of resisting the same police officer in the execution of his duty.   It was alleged by the prosecution that the last two offences were committed when the police visited the appellant’s home in order to speak to him about allegations of failing to comply with the restraining order.

Despite the fact that the appellant pleaded guilty to all offences, the appeal is against both conviction and sentence.   Appellate courts exercise considerable caution before allowing an appeal against conviction in those cases where the appellant has pleaded guilty before the trial court.  I respectfully adopt the comments of Lee J in R v Enright [1990] 1 Qd R 563 at 568:

“...whilst the court can entertain an appeal against a conviction upon a plea of guilty, it has been held that it is only in very exceptional circumstances that it will do so, such as where the guilty plea was induced by a material mistake, or upon the admitted facts the person could not have been convicted of the crime charged: R v Stewart [1960] VR 106. In R v Murphy [1965] VR 187 however, Scholl J said at 190 that whilst most of the cases fell within the above principles, the overriding consideration was whether there had been a miscarriage of justice.”

(See also R v Lars & Ors (1994) 73 A Crim R 91 at 109).

It is convenient to deal first with the appeal in so far as it relates to the convictions on the counts of breaching the restraining order.  Section 99C of the Summary Procedure Act 1921 lays down the procedure for confirming restraining orders made ex parte.   The relevant parts of the section provide as follows:

“(1)A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.

(2)A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case -

......... (a)     the Court must summon the defendant to appear before         the Court to show cause why the order should not be        confirmed; and

......... (b)    the order is not effective after the conclusion of the      hearing to which the defendant is summoned unless -

......... (i)     the defendant does not appear at that hearing in   obedience to the summons; or

......... (ii)    the Court, having considered the evidence of the   defendant and any other evidence adduced by the             defendant, confirms the order.

(3)... The Court may make an order under subsection (2) on the basis of evidence received in the form of an  affidavit  but, in that case -

......... (a)     the deponent must, if the defendant so requires, appear          personally at the proceedings for confirmation of the    order to give oral evidence of the matters referred to in     the affidavit; and

......... (b)    if the deponent does not appear personally to give         evidence in pursuance of such a requirement, the Court       may not rely on the evidence contained in the affidavit for   the purpose of confirming the order.”

Section 99(1) provides that a court cannot make a restraining order unless:

“(a).. there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and

(b).... the Court is satisfied that the making of the order is appropriate in the circumstances.”

A restraining order was made against the appellant at an ex parte hearing on 21st September 1995.  The appellant was served with the order and a confirmation hearing was fixed for 10th October 1995 before a magistrate who was not the magistrate who eventually sentenced the appellant on the matters which are the subject of this appeal.  The first magistrate purported to confirm the order.  In another appeal brought by the appellant I held that the procedure prescribed by s99C had not been followed and that the restraining order had not been properly confirmed.  (JN S6215 delivered 24th June 1997)

The pleas of guilty which were entered on behalf of the appellant to the counts alleging breaches of the restraining order were made on the understanding that the restraining order had been properly confirmed.  In my view this was a misapprehension.   Part of the reasoning for holding that the original order had not been validly confirmed was that the learned magistrate who dealt with the matter at that stage had not considered the evidence as he was required to do pursuant to s99C(2)(b)(ii) of the Summary Procedure Act.  The section provides that unless this is done the order is not effective.  It follows that it could not have been breached on the occasions alleged in the charges.  This is not a situation where an order is valid until set aside.  As I have pointed out, the legislation itself provides that the order is ineffective unless the prescribed procedure has been followed.

It follows that as the appellant could not in law have been convicted of the alleged breaches of the restraining order the convictions for those offences must be set aside.  (R v Kardogeros (1990) 1 VR 269 at 273).

The appeal against the convictions on the charges of assault police and resisting police stands on a different footing.   The fact that the appellant was not guilty of the charges which the police were investigating is not fatal to a successful prosecution for assaulting police and resisting police.   On the information before me the police officers were acting in the course of their lawful duty.   (cf  Normandale v Rankine (1972) 4 SASR 205 at 210).

However the appellant’s case is that his legal advisers put pressure on him to plead guilty to all the offences alleged in the complaint and that he did not intend to plead guilty to the two charges relating to the police.

The court record indicates that the appellant appeared before the learned magistrate appealed from, Mr Harris SM, on 4th March 1996.   He was represented by his solicitor, Mr Fletcher, and pleaded guilty to all five counts.  The prosecutor then recited the facts including those in relation to the assault and resist police charges.   The facts were admitted on the appellant’s behalf.  He was then remanded in custody to 8th March 1996 to enable a pre-sentence report to be presented orally.   The report was presented on that date and the appellant was further remanded to enable a psychiatric report to be prepared.

The appellant next appeared before Mr Harris on 22nd March 1996.   The psychiatrist’s report was tendered and in it the psychiatrist stated that the accused denied assaulting the police officer on the occasion alleged in the complaint.   The learned magistrate then drew defence counsel’s attention to the comment in the report.  The transcript records the events which took place as follows:

“HIS HONOUR:.......... In the light of the contents of that report, do you have any instructions to withdraw the pleas of guilty entered to these charges on the 4 March?

MR FLETCHER: No.  I do not.

DEFENDANT INDICATES HE WISHES TO SPEAK TO HIS COUNSEL
ADJOURNED TO ENABLE MR FLETCHER TO TAKE INSTRUCTIONS
COURT RESUMES

HIS HONOUR:............ Now, you have had the opportunity to take further instructions.  What are those instructions?

MR FLETCHER: I have taken written instructions to the effect I’m not to make an application to withdraw the pleas previously entered.

SUBMISSIONS BY MR FLETCHER
SUBMISSIONS BY APP FORD”

The learned magistrate then proceeded to sentence the appellant.  He recorded convictions on all counts and imposed one penalty for the five offences.   The appellant was sentenced to imprisonment for three months and two weeks which was suspended upon him entering into a bond to be of good behaviour for three years.

On the hearing of the appeal Mr Fletcher was called by the respondent to give evidence after the appellant waived legal privilege.   He said that prior to 4th March 1996 he took instructions from the appellant in relation to the matters which are the subject of the appeal as well as various other charges which had been laid against the appellant, including charges that he had defrauded the Workcover Corporation and other alleged breaches of restraint orders.  The facts of the incidents were discussed and the appellant said he intended to plead guilty to the five charges, but not guilty to a charge alleging he had breached a restraint order on 22nd September 1995.   Mr Fletcher said he advised the appellant carefully with respect to these charges and that the appellant signed a document which contained these instructions.   The document was tendered. (R2)  Mr Fletcher said that the appellant pleaded guilty to the five charges on 4th March 1996 and the prosecutor read out the facts alleged by him.  Mr Fletcher said that the information he had been given by the appellant concerning the incident which led to the charges of assault and resist police enabled him to admit the facts alleged by the prosecution.  Mr Fletcher was again present when the oral pre-sentence report was given on 5th March 1996.

Mr Fletcher said he spoke again with the appellant on 13th March 1996.  Mr Kane, a barrister, attended on this occasion.  Mr Kane was briefed to act for the appellant in relation to the Workcover matters.  The appellant told both these advisers that he wanted the Workcover matters and the other charges, including the five charges now under consideration, dealt with at the one time.  He was told that this was not possible.  At the appellant’s request Mr Fletcher also made enquiries to see if any of the police charges would be dropped if the appellant pleaded guilty to some of the Workcover charges.   The police refused this request.  Mr Fletcher denied the appellant’s suggestion on the hearing of the appeal that he advised the appellant that the police charges would be resolved if he pleaded guilty to the Workcover charges. 

According to Mr Fletcher’s evidence the appellant signed written instructions (R4) to the effect that he wished to plead guilty to the Workcover charges.  At the appellant’s request the following sentence was placed in the instructions:

“Further to the above I wish the restraint order charges that I have entered pleas of not guilty be withdrawn.” (sic)

(It seems that these are charges other than the five matters with which I am concerned.)

Mr Fletcher said that when the matter was called on before Mr Harris on 22nd March 1996 he spoke to the appellant before going into court.  He drew the appellant’s attention to the statement in the psychiatric report that the appellant denied assaulting the police officer and the appellant said he wanted the matter to proceed.   Mr Fletcher said that the appellant then signed written instructions for Mr Fletcher to make submissions as to penalty on the charges before Mr Harris.

When Mr Harris raised the statement in the psychiatric report Mr Fletcher said he again took instructions from the appellant. He gave evidence that the appellant at first said he was not guilty of the assault and resist police charges.  Mr Fletcher said, however, that according to his recollection the appellant changed his mind again (as he said he had done in relation to other charges on various occasions) and said that he did not want his solicitor to make an application to withdraw the pleas to the charges.  Mr Fletcher said that it was his recollection that he prepared written instructions for the appellant to sign so as to withdraw the pleas of guilty and when the appellant changed his mind, Mr Fletcher inserted the word “not” in front of the words “to make an application to the court to withdraw my pleas” and made another consequential amendment later in the document.   The appellant then signed the final instructions.   In their final form they read as follows:

“I Mark Moore-McQuillan instruct my solicitor not to make an application to the court to withdraw my pleas of guilty to charges of assault police and resist arrest as well as plea of guilty entered to the breach of restraint order by means of sending letters alleged.

22.3.96”

They then went back into court and Mr Fletcher announced in the presence of the appellant that the appellant did not wish to withdraw his pleas of guilty.

The appellant gave evidence before me.  He said that on 28th February 1996 he appeared before Justice Prior on a bail application.  Mr Jones, a partner of Mr Fletcher, represented him.  According to the appellant Mr Jones told him to plead guilty to the matters which had been listed before Mr Harris because he would not receive a custodial sentence and could then assist in preparing the defence in relation to the Workcover charges.  The appellant also claimed that Mr Jones told him that the prosecution would drop the assault and resist police charges if he pleaded guilty to the breaches of the restraint order.  However, in another part of his evidence, the appellant said he was unaware of the assault and resist police charges at this stage.

I do not accept the appellant’s evidence on this issue.  Mr Jones was called to give evidence by the respondent.  I have no doubt as to his truthfulness and the accuracy of his evidence.  He told the appellant that he could not give any opinion as to what penalty Mr Harris would impose.  According to Mr Jones the appellant asked if the police charges could be brought forward so that he could plead guilty to them.  Mr Jones then pointed out to him that this would involve accepting the allegations made by the prosecution.  He denied telling the appellant to plead guilty.

The appellant denied giving instructions to Mr Fletcher to plead guilty to the breach of restraint charges and the charges of assault and resist police.  He denied that his initials were placed on the written instructions to this effect.  (Exhibit R2).  I reject his evidence and accept that of Mr Fletcher.  I have no doubt that the appellant initialled the instructions and intended to convey that he wished to plead guilty.  Nor have I any doubt that the appellant placed his initials on the written instructions to Mr Fletcher to make submissions as to penalty on the assault and resist charges when Mr Fletcher spoke to him on 22nd March 1996 before going to court.   I accept that the appellant initialled these instructions (R1) in the manner deposed to by Mr Fletcher.

The appellant went on to describe what he said took place before Mr Harris on 4th March 1996.  He said he thought he was going to plead guilty to the three breach of restraint order charges.   He said he suffers from deafness in one ear and he is unable to say how many pleas of guilty he entered.  He said he does not know whether the charges of assault police and resist police were read out, although he formed the view at one stage that he was pleading guilty to too many charges.  He said he advised the court there were too many charges.  He said that the prosecution allegations were not given to the court.  He said he has no memory of his lawyer admitting any facts put to the court by the prosecution.

I reject the appellant’s version of these events.  I am quite satisfied on the evidence that the five charges were read out, that the appellant understood them and that he entered pleas of guilty to all charges intending to do so.  I also find that the prosecution allegations were given to the court and that they were admitted in the presence and hearing of the appellant.  He may well have some problem with his hearing, but it was not evident in the proceedings before me that it occasioned him any difficulty in following the proceedings and I am quite satisfied that he heard all charges being read out at the hearing before Mr Harris.

According to the appellant he spoke to Mr Fletcher in the cells after Mr Harris had permitted the solicitor to take further instructions on 22nd March 1996 and Mr Fletcher told him that he could not change his plea to not guilty.  I do not accept that these were the appellant’s final instructions and I accept Mr Fletcher’s evidence concerning this incident and the circumstances in which the appellant initialled the written instructions. ( R5).

The appellant may well have changed his mind from time to time when giving instructions in this matter.  However I am convinced that his final instructions were to plead guilty to the charges which are the subject of this appeal and that he was under no misunderstanding as to their nature or what was involved in entering the pleas.  In my view the circumstances do not disclose a miscarriage of justice.  Accordingly no case has been  made out for interfering with the convictions recorded on the charges of assault police and resist police.

The appeal against the convictions on the charges of breaching the restraint order will be allowed and those convictions will be set aside.  The appeal against the convictions for assaulting police and resisting police will be dismissed.  The global penalty will be set aside and I will hear submissions on the penalty to be imposed in relation to the offences of assaulting police and resisting police.