NGUYEN v Police - [2007] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NGUYEN v POLICE
[2007] SASC 190
Judgment of The Honourable Justice Layton
25 May 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE - PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
The appellant, who was unrepresented, pleaded guilty in the Magistrates Court to having driven a motor vehicle under the influence of a drug, contrary to s 47 of the Road Traffic Act 1961 (SA) - appellant not of an English-speaking background - appealed against the conviction and sentence on grounds relating to the circumstances in which the plea was entered - Held: the appellant did not intend to plead guilty to the charge - extension of time granted - appeal allowed - complaint remitted to Magistrates Court for rehearing.
Road Traffic Act 1961 (SA) s 47; Supreme Court Civil Rules 2006 (SA) r 283; r 290, referred to.
Cooling v Steel (1971) 2 SASR 249; The King v Forde [1923] 2 KB 400; Liberti (1991) 55 A Crim R 120, applied.
Collie v Police [2002] SASC 109; Irving v French (1979) 21 SASR 437; Marie v Police (2003) 231 LSJS 399; Police v Warren [2000] SASC 285, considered.

NGUYEN v POLICE
[2007] SASC 190
LAYTON J.
Introduction

This is an appeal against conviction and sentence. On 30 December 2004, the appellant was charged with driving while he was so much under the influence of a drug as to be incapable of exercising effective control of a motor vehicle, contrary to s 47 of the Road Traffic Act 1961 (SA) (“the Act”). The alleged offending occurred on 24 August 2004 on Grand Junction Road at Gepps Cross, and other locations.
On 29 January 2007, the appellant pleaded guilty in the Holden Hill Magistrates Court. The appellant was unrepresented. He was convicted and fined $700 plus court fees and a levy. The appellant was also disqualified from driving for a period of 12 months commencing from 17 February 2007.
Grounds of Appeal
The grounds of appeal are:
1. The Appellant denies that he was driving under the influence.
2.The Appellant did not have an interpreter provided for him. The Appellant is Vietnamese and hence could not fully comprehend what was occurring.
3.The Appellant was advised that there was a Summons against him the weekend before this matter was heard in the Magistrates Court, and only picked up the Summons on the Sunday before the matter was heard in the Magistrates Court.
4.The Appellant was unrepresented, and was not allowed an adjournment to obtain such legal advice.
5.The Appellant advised the Sherriff [sic] on the day of the proceedings that he intended to plead not guilty to the charge.
The appellant seeks the following orders:
1. That the sentence made on 29 January 2007 be set aside;
2. That there be a stay on the Appellant’s disqualification of licence.
Extension of Time
The order of the Magistrate was made on 29 January 2007. The Notice of Appeal was received on 21 February 2007. Rule 283 of the Supreme Court Civil Rules 2006 (SA) provides that an appeal must be instituted within 21 days of the judgment appealed against. The appellant’s failure to appeal within the prescribed time limit means that he lost his right of appeal. However, I note that the appeal is only two days out of time.
Rule 290 of the Supreme Court Civil Rules 2006, allows the Court to extend time in which to lodge an appeal. The power to extend time is discretionary. It is for the appellant to justify the Court’s exercising the discretion in his favour. The relevant principles to be applied in considering an application to extend time were summarised by Gray J in Warren.[1]
[1] Police v Warren [2000] SASC 285.
Although it was not articulated in this manner, I understood the appellant to rely on the following grounds for an extension of time:
1.     The Appellant was unrepresented at the time of conviction and sentence.
2. He deposes that he was informed by the Holden Hill Magistrates Court that the period for appeal was 28 days.
3.He only became aware of the time limit for appeal after he saw his solicitor about two weeks later when the time limit was about to expire.
4.     The Appellant was granted funding to pursue an Appeal in January 2007.
5.     The appeal was only 2 days out of time.
6.     The appeal has merit and the discretion should be exercised in order to do justice.
In this case, I will examine the merits of the appeal before ruling on whether an extension of time should be granted.
Personal circumstances of the appellant
The appellant is a 49-year-old man, who was born in Vietnam. In 1982 he came to Australia as a refugee, and has lived in Adelaide since then. He worked as a refrigeration mechanic in Vietnam, and after completing a TAFE course has worked for various Adelaide companies as a refrigeration mechanic and as an Air Conditioner Technician for the past 20 years. He is currently employed, and has held that position since 2000.
The appellant is currently married but separated. He has two children, a son aged 22, and a daughter aged 18.
Circumstances of the offence
The circumstances relating to the offence as submitted to the Magistrate are set out in the affidavit of Matthew Keenan, the police prosecutor, sworn 26 March 2007 (Exhibit R2). Mr Keenan deposes the following:
·At about 5:25pm on 24 August 2004, on Grand Junction Road, Gepps Cross, police on uniform mobile patrol observed a motor vehicle on the side of the road. Police, acting on information received, interviewed the driver and reported him for driving while under the influence of a drug.
·Witness one stated that at about 5:20pm that day, the appellant was driving his motor vehicle in an easterly direction along Grand Junction Road, Gepps Cross, when he observed the appellant’s car. He stated that the car was being driven on the wrong side of the road on Days Road, Regency Park, and was swerving across the road, straddling across both lanes, and that it collided with a road sign on Grand Junction Road, narrowly missing a bus stop and Stobie poll.
·Witness two stated that at about 5:15pm that day, she observed the appellant’s car drifting across from the right lane to the left without indicating, causing a motorcyclist to take evasive action to avoid collision. She stated that she observed the car being driven in an easterly direction along Grand Junction Road, Gepps Cross, by a person, now known to be the appellant. Further, she stated that the car was then driven in the left-hand lane, before it hit the left side kerb, mounting the kerb and then hitting a road sign.
·Witness two indicated to the respondent to stop driving. He then pulled over. Witness two then went to the driver’s side door and observed that the appellant had his head slumped against the door. She stated that the appellant looked “out of it”, and that his eyes were not focussed, and that he did not respond to any questions.
·Police witness one, Constable Fraser, stated that at about 5:25pm that day, he observed the appellant’s car on the footpath on the northern side of Grand Junction Road, Gepps Cross. He then had a conversation with the appellant, who told him that he was the driver of the car.
·Police observed that the appellant had slurred speech, red watery eyes, difficulty in standing without losing his balance, leaning on the bonnet of his motor vehicle and then sliding off the side of the bonnet, difficulty in concentrating with conversation and stated that he had consumed some Valium prior to driving. The appellant later denied that in interview.
·Police asked the appellant whether he had consumed any alcohol and he denied any alcohol consumption. Constable Fraser then had a conversation with the appellant following the caution. At the end of the caution, the appellant was reported for driving a motor vehicle while under the influence of a drug.
·Police witness two, Constable Greenland, stated that on 24 August 2004 she was on uniform patrol with Constable Fraser. She attended the scene with Constable Fraser and collected statements from witnesses one and two.
Hearing before the Magistrate
On the hearing of the appeal the appellant was represented by Mr Angelino, and Mr Grant appeared on behalf of the respondent. However, as I mentioned earlier, the appellant was unrepresented at the hearing before the Magistrate. As is often the case in the Magistrates Court, the matter was heard in a busy general list, and was one of many matters heard in that list.
Matthew Keenan deposes the following in relation to the hearing before the Magistrate:
·The charges were read and the appellant entered a plea of guilty.
·He cannot specifically recall whether the Magistrate warned the appellant as to the nature of the charges, of his right to obtain legal advice, or whether he provided the appellant the opportunity to have an adjournment to do so. However, he deposes that he has appeared before that Magistrate on many occasions, and that based on this experience it was the Magistrate’s usual practice to warn unrepresented litigants of their right to obtain legal representation and of the nature of the charges before the court.
·He cannot recall there being any confusion about what plea the appellant would enter. As far as he could recall, the charge was read and the appellant simply entered his plea of guilty.
·He read the facts of the matter to the court. Although he cannot recall the exact words, they were based upon the police apprehension report.
·He advised the Magistrate that the appellant did not have any relevant prior offending history. Apart from that, he did not make any further submissions in relation to sentence.
·He cannot recall what, if anything, the appellant submitted to the court, and he cannot recall whether the Magistrate asked the appellant any questions.
·He cannot recall the appellant having any difficulty understanding the English language. He deposes that if there had been such an indication, his usual practice would have been to ask for the matter to be adjourned and for an interpreter to be arranged for the next hearing. As a consequence, he does not believe that the appellant had difficulty with the English language. He also notes that there was no indication of such difficulties in the apprehension report or the police prosecution brief.
·The Magistrate sentenced the appellant, ordering the penalties as outlined above.
·He cannot recall all of what the Magistrate said during sentencing, but he does recall the Magistrate indicating that the drug the appellant had taken should state on the packet or label that driving is not advised due to the effects of those drugs, and that it is dangerous to do so. Further, he can recall the Magistrate stating words to the effect that the appellant was lucky not to injure himself or others in the circumstances.
The appeal
At the hearing before me, an affidavit of the appellant sworn on 2 April 2007 was tendered and marked Exhibit A1. The appellant deposed to the following matters:
·On 24 August 2004 when he was pulled over by the police, he explained he was under considerable stress because of his mother's serious illness; that he had experienced trouble sleeping and his doctor had prescribed Valium to enable him to sleep. He was asked to show his driver's licence the following day.
·He attended the Port Adelaide police station the following day and produced his driver's licence.
·He was not served with a summons. He was contacted by police by telephone five months later in January 2007. He understood that he had to go to the Court at Port Adelaide regarding a traffic offence. He was telephoned again on 24 January 2007 and told by the police to pick up a Summons from the Port Adelaide police station.
·He was unable to attend the Port Adelaide police station until Sunday 28 January 2007 and learnt for the first time that he was to be at the Holden Hill Magistrates Court the next day at 10am.
·The police officer at the counter advised him to go to court early to talk to the duty solicitor to assist him.
·On Monday 29 January 2007, he attended the Holden Hill Magistrates Court, looked for a duty solicitor but could not find one. It was the first time he had been inside the Magistrates Court.
·He sat outside waiting for the court sheriff to call out his name. The court sheriff asked whether he was pleading guilty or not guilty and he said "not guilty".
·He entered the courtroom and the matter was called on.
·He says the Magistrate read something out to him that he did not understand properly and asked him whether he was aware of the seriousness of the charge.
·The Magistrate asked him about the Valium tablets. He said he told the Magistrate that he did take Valium tablets but that he had taken them the night before, that he did not feel under the influence and any effects would have worn off by then.
·He says the Magistrate asked him whether his doctor had warned him not to take Valium whilst driving.
·He said he told the Magistrate that "if you say that this anti-depressant tablet is a drug than I did take the tablets but I wasn't driving under the influence". He deposed that he was confused by the Magistrate’s reference to a drug which he thought of as being heroin or ecstasy.
·He deposed that the Magistrate asked him what sort of job he did and whether he required his own transport. He said he told the Magistrate he needed a car for work and the Magistrate told him that he would give the appellant time to arrange matters.
·He deposed that the prosecutor then read out the offence and that after the prosecutor spoke the Magistrate sentenced him to disqualification of licence for 12 months from 17 February 2007 with fines and other fees totalling $859.
·He said he was later given a pamphlet by the Sheriff called the Alcohol Interlock Scheme.
·The appellant deposes that he was unable to understand parts of the proceedings as the language in the court was too formal to understand. He said he found the experience intimidating. He says he was not asked at any time whether he wished to obtain legal advice or to have the matter adjourned to enable him to seek such advice. He deposed that he believes he is not guilty of the offence for which he is sentenced.
Counsel for the appellant, Mr Grant, sought and obtained the right to cross-examine the appellant on his affidavit. He was assisted by an interpreter. The appellant was asked questions in English, and answered in English, but when he was unsure as to the meaning of a question he requested interpretation. The appellant’s evidence may be summarised as follows:
·Although he can understand “normal conversation”, he does not understand “formal language and technical language”. He also said that he can read English.
·When asked about the telephone call from the police about his need to attend the Port Adelaide Magistrates Court (paragraph [8] of his affidavit), he said he did not understand all of what was said, but he did understand that he had to go to Port Adelaide for the court case.
·In relation to paragraph [10] of his affidavit, where the appellant deposes that he was given some advice about seeing a duty solicitor, the appellant said that he understood this advice and as a consequence looked for a duty solicitor when he went to court.
·The appellant repeated in evidence that when the sheriff asked him whether he was pleading guilty or not guilty, he responded “not guilty”. He said he told the sheriff he was entering such a plea “because I am not guilty”. The appellant gave evidence that he knows the difference between “guilty” and “not guilty”, and therefore knew the difference between saying guilty or not guilty when asked to plead to a charge.
·The appellant stated that he felt very nervous and scared on the day he attended court, and that he had never been under any particular form of pressure like that before.
·When asked about his appearance before the Magistrate, the appellant said that he could recall something being read out to him and the Magistrate asking him whether he was aware of the seriousness of the charge. He said that the Magistrate did not ask him whether he wished to obtain advice from a lawyer and that the Magistrate did not offer him the opportunity for an adjournment to see a lawyer.
·Mr Grant suggested the appellant never said to the Magistrate, “if you say that this anti-depressant tablet [Valium] is a drug then I did take the tablets but I wasn’t driving under the influence.” (Paragraph [15] of his affidavit) The appellant maintained in cross-examination that he said those exact words. It was further suggested that the appellant never told the Magistrate that he wasn’t driving under the influence, as he deposes in paragraph [15] of his affidavit. The appellant stressed that he did state that to the Magistrate.
·The appellant said that he pleaded “guilty on the valium tablet”, meaning that he was pleading guilty to taking a valium tablet the night before he drove. However, he denied that he pleaded guilty to the charge of driving under the influence. As a consequence, he said that he went on to tell the Magistrate that he wasn’t driving under the influence.
·The appellant said that he did not agree with the facts which were read out by the police prosecutor before sentence was imposed, but that the Magistrate never asked him whether he agreed with the facts which were read out.
·He said that he did not think that he would get his licence disqualified, and re-emphasised that he did not know anything about the penalties before he attended court.
Towards the end of the cross-examination, Mr Grant sought to tender a record of the conversation between the police and the appellant at the scene in order to demonstrate the appellant’s English skills. Counsel for the respondent, Mr Angelino, objected to its tender on the basis of relevance and prejudice. Following some discussions, Mr Grant withdrew his application to tender the document. I consider that that was an appropriate course to follow in the circumstances, as it would have resulted in an unprofitable “inquiry within an inquiry”, when I had the opportunity of seeing for myself any difficulties which the appellant had with language.
Power to set aside a conviction following a guilty plea
The Court has power to allow an appeal against a conviction entered as a result of a plea of guilty, but the circumstances in which the Court will do so are limited. As Kirby P observed: [2]
This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all the relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.
[2] Liberti (1991) 55 A Crim R 120, 122 per Kirby P.

These circumstances include where the defendant did not appreciate the nature of the charge, or did not intend to admit guilt, or if upon the admitted facts the defendant could not as a matter of law have been convicted.[3]
[3] The King v Forde [1923] 2 KB 400, 403; Collie v Police [2002] SASC 109, [11] per Doyle CJ.
In Cooling v Steel[4] Wells J stressed the fact that where a defendant is unrepresented, as in this case, the court should give careful attention to the following matters of practice and procedure:
·When the defendant answers to his or her 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. The charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise.[5]
·The defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he [or she] is entitled to legal advice and representation; in particular, that he or she may ask for a reasonable adjournment to seek that advice or representation.[6]
·If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence.[7]
·It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation.[8]
·Before the facts are placed before the court, the defendant should be informed that he [or she] is entitled to dispute or comment upon the facts alleged by the prosecutor. If the defendant proceeds to dispute any of those facts the court should be quick to recognise any denials or explanations that suggest that he or she should not have pleaded guilty. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he or she adheres to their challenge of the material facts or to their explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.[9]
[4] (1971) 2 SASR 249, 250-1.
[5] Ibid, 250.
[6] Ibid, 251.
[7] Cooling v Steel (1971) 2 SASR 249, 251.
[8] Ibid.
[9] Ibid.
In addition, special considerations attach to cases where the defendant is of a non-English speaking background.[10] In circumstances where a person’s understanding of court procedure may be very slight, the court must take great pains to ensure that the defendant understands the implications of everything that is happening. Further, as Wells J observed:[11]
If the court suspects that the defendant has an imperfect understanding of the English language, it should not hesitate to adjourn to enable an interpreter to be obtained, and when one is available it should satisfy itself that the defendant and the interpreter can communicate fluently and efficiently.
[10] Ibid.
[11] Ibid, 252.
In making all of these observations, I bear in mind that Magistrates are under the pressure of a very heavy workload, and that those precautions may occasionally be imperfectly observed when they are busily dispatching their business.[12]
[12] Irving v French (1979) 21 SASR 437, 439 per Walters J.
Conclusion
In this case I was impressed by the evidence given by the appellant and his responses to cross-examination. He gave his evidence in a candid manner and at times indicated when he was uncertain about particular issues. He also conceded in cross-examination that certain things may have been told to him by the Magistrate, but “Probably I don’t understand sir, yes”. However, he maintained that the Magistrate did not indicate to him that he should see a lawyer. He also maintained that at no time did he intend to plead guilty.
I accept that the appellant did not intend to plead guilty to being under the influence of a drug contrary to s 47 of the Act. I can understand that the Magistrate may not have appreciated the lack of true understanding which the appellant had during the unfamiliar and intimidating court procedures. He may have considered his language skills to be greater than they were. He may also have misunderstood the appellant and thought that the appellant in admitting that he had taken the anti-depressant tablet, was in the circumstances admitting the offence.
I consider that this case falls within the circumstance of not intending to admit guilt as discussed in the cases referred to above. As a consequence, I consider that this is one of those rare cases where a successful appeal after a person has pleaded guilty should be allowed. To not grant an extension of time and allow the appeal in this case would result in a miscarriage of justice, and on that basis I make the following orders:
1The time within which the appellant be entitled to appeal be extended to 21 February 2007.
2Appeal allowed.
3The conviction and sentence imposed by the Magistrate be set aside.
4The complaint be remitted to the Magistrates Court for re-hearing.
5In the interests of expediting this matter, the appellant is to appear before the Holden Hill Magistrate’s Court at 10am on Monday 18 June.