Moukachar v Police - [2013] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOUKACHAR v POLICE
[2013] SASC 71
Judgment of The Honourable Justice Gray
16 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - GENERALLY
Appeal against conviction - defendant and appellant pleaded guilty to assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) - defendant appeared at trial unrepresented and ex custody - defendant was in custody pursuant to an arrest warrant issued when he failed to attend court on a prior date - the defendant understood that he could either plead not guilty and remain in custody, or plead guilty and be released from custody - whether appellant was induced to enter guilty plea.
Held: Appeal allowed - conviction and sentence set aside - defendant given leave to withdraw guilty plea - matter remitted to the Magistrates Court for rehearing - defendant did not exercise free will in entering guilty plea.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
Meissner v The Queen (1995) 184 CLR 132; The Queen v Shannon (1979) 21 SASR 442; Groom v Police (No 2) [2013] SASC 50, considered.

MOUKACHAR v POLICE
[2013] SASC 71
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Jack Moukachar, was charged on complaint that on 9 April 2012 at Manningham he committed the offence of assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA). Following the defendant’s plea of guilty in the Magistrates Court, he was convicted and released on an 18 month good behaviour bond. In the event of a breach of the bond, the defendant was liable to be brought back to court and sentenced for the offence.
The defendant appeared in person both before the Magistrate and before this Court on the appeal. The defendant submitted that he had entered his plea of guilty under the inducement that if he did so he would be released from custody. The defendant maintains that he was not guilty of the offence. He seeks a setting aside of the conviction and sentence, and leave to withdraw his plea of guilty. Counsel appearing for the police accepted that, in the circumstances that had occurred, the appeal should be allowed.
On 23 July 2012, the first return date on the complaint, the defendant attended and the matter was remanded for pre-trial conference. On 30 August 2012, the defendant attended and the pre-trial conference was adjourned part-heard. On 22 October 2012, the defendant attended. A note appearing on the court file in the hand of the presiding Magistrate reads, “NB very long attempt made to resolve. Def will not accept guilty”. The matter was set for a one day trial on 10 December 2012.
On 10 December 2012, the trial did not proceed. The court record discloses that the defendant left a telephone message that morning indicating that he had a toothache, would not be able to attend and sought an adjournment. The Magistrate was not satisfied that there was a sufficient reason to adjourn and to relist the trial. A warrant was issued for the arrest of the defendant with an endorsement that he was excluded from bail.
On the following day, 11 December 2012, the defendant appeared in court ex custody without representation. On this occasion, he entered a plea of guilty.
An affidavit of the police prosecutor, filed in this Court, deposed to the following facts relating to the defendant’s plea of guilty:
In the lead up to the trial I tried negotiating a plea on agreed facts between the parties. The appellant would not enter a plea of guilty on any version and remained adamant that he was not guilty. The appellant requested that the prosecution withdraw the charge. I advised the appellant that the prosecution would be proceeding.
On Friday 7 December 2012 I made a telephone call to the appellant to confirm that this matter was still proceeding to trial on Monday 10 December 2012 and whether any witnesses could be agreed. The appellant indicated to me that he may not be able to attend trial on 10 December 2012 because he was feeling unwell and had a toothache. I informed the appellant that it was important that he attend his trial on Monday. I warned him that a toothache may not be accepted for not attending his trial and advised that he attend. I recommended that if the appellant was not better by Monday to contact the Holden Hill Magistrates Court and inform the Registry in writing of his intentions and his inability to attend on Monday. During this conversation, the appellant stated that he was maintaining his not guilty plea.
On 10 December 2012 I appeared before His Honour Mr Chin SM in the Magistrates Court at Holden Hill. The appellant was not in attendance. On this date I had arranged for 2 police witnesses and 2 civilian witnesses to be present to provide oral evidence as no evidence could be agreed between the parties.
I recall that the Court had received a phone call from the appellant that morning indicating that he was unable to attend due to a tooth ache and sought an adjournment.
I advised His Honour about the telephone conversation I had with the appellant on 7 December 2012 (paragraph 5 refers).
His Honour was not satisfied that the appellant had provided sufficient reasons to justify an adjournment and the relisting of the trial. I recall that His Honour said words to the effect that having a toothache was not an acceptable reason for not attending a trial. His Honour issued a warrant for the appellant’s arrest.
On 11 December 2012 I was in the Magistrates Court at Holden Hill appearing on a separate matter, when I was advised that the appellant had been arrested on warrant and was in court applying for bail. The appellant appeared unrepresented before His Honour Mr Sprod SM, and I appeared for Police.
I recall that Mr Sprod SM appeared to read the Magistrates Court file notes. A conversation occurred whereby the defendant stated that he had written to the court explaining why he could not attend trial on 10 December 2012. Magistrate Sprod advised the appellant that a warrant had been issued for his arrest as Magistrate Chin did not find that a toothache was a sufficient reason to miss a trial date.
I recall that Mr Sprod SM said words to the effect that the appellant could either apply for bail, which would have to be considered carefully due to the fact that he had missed the trial date, or he could plead guilty and be placed on a good behaviour bond. Mr Sprod SM indicated that if the appellant pleaded guilty the matter would be finalised and he would not need to come back to court.
After explaining these options, I recall that Mr Sprod SM asked the appellant what he wanted to do. The appellant said he would plead guilty.
A guilty plea was then entered, and I recall that I read the allegations to the court with reference to the police apprehension report. …
In my recollection of this hearing, I would not describe Mr Sprod SM as being intimidating towards the appellant whatsoever. His Honour provided the appellant with his options. He let the appellant make up his own mind about what he wanted to do.
A short time later the appellant attended Holden Hill Police Station and spoke with me. The appellant showed me a piece of paper which had the court fees that he was required to pay for this matter. The appellant asked what the court fees related for. I explained what the fees related to. The appellant became angry and verbally aggressive saying words to the effect of: “is this the way the Police gets a guilty plea? I had no choice. The Magistrate was going to lock me up if I did not plead guilty. “I will fight this all the way to the top.” The appellant then left the station.
The defendant in his notice of appeal advanced the following ground:
Ive Been Attending court proceeding since the case Began. My intention Not to plea Guilty. However ON the day of the trial which set for the following date which the 10 OF december I was very sick. I did Advise the Court OF that. The Following day I was Arrested and Subsequently Brought Before Judge (DY) Sprod. I was Force to plea Guilty Because I was intimidated By MR. Sprod. Plea Guilty or get locked up. FOR 3 months I was Giving the opportunity to defend myself.
On 30 April 2013, the defendant wrote to the Crown Solicitor’s Office:
The Judge asked me about my plea. I said that I was intending to plea not guilty... [the Magistrate] said that if I did plea guilty I will be free wright [sic] away and if I don’t I will be locked up until middle of [illegible].
It is apparent from this letter that the defendant perceived that he had been given two options, namely, to plead guilty and be released from custody, or plead not guilty and remain in custody. On the hearing of the appeal, counsel for the police conceded that this perception was one that was reasonably open to the defendant having regard to the statements made by the Magistrate, and from the further circumstance that the defendant appeared before the Magistrate ex custody.
A defendant should be allowed to exercise a free choice in entering their plea, and a plea may be set aside where it can be shown that a miscarriage of justice has occurred.[1] There must be no suggestion that a court has either offered, or approved of an inducement being offered, prior to the defendant entering their plea.[2] It is for the court to decide whether, and to what extent, leniency is to be extended to a defendant after a plea of guilty is entered.[3]
[1]    Meissner v The Queen (1995) 184 CLR 132, 141-142, 157.
[2]    The Queen v Shannon (1979) 21 SASR 442, 449.
[3]    The Queen v Shannon (1979) 21 SASR 442, 449.
The circumstances in this proceeding are similar to the circumstances in Groom v Police (No 2),[4] where Sulan J held that a defendant’s guilty plea had not been founded on a consciousness of guilt. Sulan J there observed:[5]
The Magistrate gave the defendant effectively two options: he could remain in custody or he could plead guilty and be released. At the time the options were given to him by the Magistrate, the defendant had been in custody on the charges for almost 3 weeks. The defendant was unrepresented. The defendant maintains his innocence to the charges. The defendant's pleas could not be regarded as genuine choices. There is nothing before this Court which supports a conclusion that the defendant's pleas were founded on a consciousness of guilt.
[4] Groom v Police (No 2) [2013] SASC 50.
[5] Groom v Police (No 2) [2013] SASC 50, [15].
When regard is had to the extracted paragraphs of the prosecutor’s affidavit, the following may be concluded. Prior to the entry by the defendant of his plea of guilty, the Magistrate explained to the defendant that he could either apply for bail, appearing as he was ex custody, which would have to be considered carefully due to the fact that he had missed the trial date, or he could plead guilty and be placed on a good behaviour bond, and not be required to come back to court.
Conclusion
The appeal is allowed. The conviction and sentence imposed by the Magistrate are set aside. The defendant is given leave to withdraw his plea of guilty. The matter is remitted to the Magistrates Court for rehearing.