O'Dowd v Police No. Scgrg-98-637 Judgment No. S6827

[1998] SASC 6827

O’DOWD v POLICE
[1998] SASC S6827

Magistrates Appeal

Debelle J

1. This is an appeal against sentence.  As will be seen, the appellant seeks to withdraw a plea of guilty and change it to a plea of not guilty.  The appeal is well out of time. The appellant has, therefore, lost his right of appeal: R v Lesser (1939) 27 Cr. App. R. 69; R v Trotter (1979) 22 SASR 64 at 65. The appellant must, therefore, obtain an extension of time within which to appeal. I will hereafter refer to the appellant as “the applicant”.

2. In 1996, the applicant was charged with creating a false belief that an offence had been committed, contrary to s62a(1) of the Summary Offences Act, 1953.  The offence arose out of telephone calls made by the applicant on 21 June 1996 at Keswick. 

3. The matter came on for hearing in the Adelaide Magistrates Court on 5 March 1997.  The applicant was represented.  He pleaded guilty.  The magistrate did not record a conviction but ordered that the applicant pay the costs incurred by the police in investigating the false complaint ($198) and witness fees ($182).  The magistrate gave the applicant 12 months in which to pay the total sum of $380.

4. On 5 May 1998, the applicant appealed against the sentence.  The appeal was almost 14 months out of time.  The applicant’s ground of appeal was that the decision was incorrect “due to medical matters and other issues”.  The appeal came on for hearing before Lander J on 3 June 1998.  Leave was given to the applicant to amend his Notice of Appeal.  The applicant’s case was not properly prepared.  Lander J adjourned the appeal to the July sittings. 

5. The amended grounds of appeal were in the following terms:

1...... That prima facie a miscarriage of justice has occurred by reason of the applicant’s former solicitors having not taken proper instructions to enable them to properly ascertain the defence and by virtue of them acting contrary to the applicant’s instructions.

1. That had the learned magistrate been aware that the applicant’s instructions were at all times that he was not guilty of the offences charged, the learned magistrate could never have accepted the plea of guilty.

1. That the applicant’s former solicitors erred in exercising undue pressure to force the applicant to plead guilty contrary to his wishes.

I interpolate that the magistrate did not record a conviction.  Thus, the appeal is, in truth, an application to withdraw the plea of guilty.  The applicant does not appeal against the other orders made by the magistrate.

1. The grounds on which the applicant applied for an extension of time were:

1. That, in all the circumstances, it is in the interests of justice that an extension of time be granted.

1. That a reason for not lodging an appeal within time relates to the existence of a persistent medical condition requiring frequent hospitalisation and long periods of recuperation.

1. That the applicant was dissuaded from lodging an appeal by virtue of the very fact of his plea of guilty which was improperly obtained.

The Application for Extension of Time

1. The applicant has been guilty of gross delay in instituting this appeal.  It is almost 14 months late.  The Court has a discretion to extend the time within which to appeal if it thinks it is just to do so: Rule 3.04(d).  The principles to be applied when dealing with an application for an extension of time within which to appeal are well settled.  Generally speaking, the Court will refuse to grant the application except in a case where, on the merits, the appeal would be likely to succeed or where, through exceptional circumstances or some untoward vicissitude, the applicant has been prevented from applying his mind to the appeal: see R v Balchin (1974) 9 SASR 64; R v Trotter (supra); R v Armstrong (1983) 35 SASR 356 at 367. So in R v Trotter (supra) at 65 Walters J said:

   “In dealing with the application, court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice.  And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted.”

These principles were not qualified by the decision of the High Court in Jackamarra v Krakouer (1998) 153 ALR 276.

1. In making this application, the applicant seeks an indulgence of the court.  He must, therefore, bring forward material to show why the appeal was not instituted within the time prescribed and the reasons why, notwithstanding the failure to observe those time limits, the time should be extended: R v Foster (1996) 187 LSJS 135 at 138.

2. I will examine first the reasons for the long delay in instituting the appeal and then turn to the merits of the matter.

The Reasons for Delay

1. The applicant has sworn an affidavit in which he says that for the past three and a half years he has suffered from an infected ulcer to one leg which has required continuous medical treatment.  He says that, on occasions, he must attend hospital two or three times in a week, and that he has been admitted from time to time for treatment.  He was admitted to hospital for about two weeks shortly after 5 March 1997.   He says that he overlooked instituting an appeal because he was preoccupied with his medical problems.  The applicant adds that he was also dissuaded from instituting an appeal because he believed that he had little prospects of success because of his plea of guilty. 

2. The applicant says that his views changed after speaking to solicitors in Brisbane who, he says, advised him that his former solicitor, Mr Sloan, had acted improperly, and that he had a“viable” grounds of appeal.  He says that, at that time, he was about to be admitted to hospital again.  He then spent about one and a half weeks in hospital and was bed-ridden for about another two months.  It was not until about mid-March 1998 that he became more mobile.  In addition, he is employed as a fund raiser for charity.  He says that his duties preoccupied him in a way which prevented him from giving full attention to institution the appeal.

3. The applicant also gave oral evidence.  His affidavit had already been tendered.  He was not cross-examined in respect of his reasons for failing to institute the appeal within time. Nevertheless, I find that the reasons are not compelling. The assertions as to his medical problems are expressed in very vague terms.  No attempt had been made to identify dates.  Even after he had received the advice from the solicitors in Brisbane, the applicant did not act promptly.  He allowed a further eight months to pass. I am not satisfied that either the applicant’s medical problems or his employment are a sufficient reason for his failure to institute the appeal in time.

4. I turn to examine the alternative ground on which the applicant must show, namely, that the appeal would be likely to succeed.

The Merits of the Application

1. A plea of guilty may be withdrawn with the leave of the Court before sentence: R v Clayton (1994) 35 SASR 232; Attorney-General v Kitchen (1989) 51 SASR 54; R v Webb and Hay (1992) 167 LSJS 135. However, it is not possible to withdraw a plea of guilty after sentence: R v Plummer [1902] 2 KB 339; R v McNally (1954) 38 Cr. App. Rep. 90;  R v Foley [1963] NSWR 1270. The only means by which the matter may be re-opened is for the defendant to appeal.

2. It is well settled that this Court has jurisdiction to entertain an appeal against a conviction based on a plea of guilty in a court of summary jurisdiction, where the consequence is a manifest miscarriage of justice.  If the entry of a plea of guilty has been brought about by mistake or misapprehension of the charge, or has been induced by an improper threat or promise on the part of a police officer or other person in authority, and if it appears that, but for that mistake, misapprehension or inducement, the plea would not have been made, and if it also appears that a miscarriage of justice has resulted, then an appellate court has a power, indeed a mandatory obligation, to quash the conviction and the penalty imposed.  Those principles are to be found in Rainbird v Samuels (1972) 4 SASR 187 at 188-189; Hinton v O’Dea (1977) 16 SASR 234 and Bull v Deed noted at 16 SASR 236; and R v Forde [1923] 2 KB 400 at 403. It is appropriate that the same jurisdiction will exist where the applicant has pleaded guilty and a penalty is ordered notwithstanding that a conviction has not been recorded.

3. In order to determine the merits of the application, it is necessary to understand the prosecution case against the applicant.

4. It was alleged that on 21 June 1996 the applicant had made three calls to the police seeking assistance in respect of potential breaches of the peace.  The first was made shortly after 12.00 noon. The applicant had alleged that he feared that he would be assaulted by his flatmate, Mr Freeman, who was leaving the flat.  Police officers went to the flat at Keswick and remained there from 12.15pm to about 1.00pm.  The situation quietened down and the police officers resumed normal patrol duties.  Shortly after 1.00pm, the applicant rang again and asked police officers to return to the flat.  The police officers came back and, shortly after, the situation resolved itself again.  The police officers left.  At about 1.56pm, the applicant again rang the police and said that he had been threatened by Freeman.  Police officers went again to the flat.  When they arrived, the applicant denied telephoning and reporting that he was being threatened.

5. In the course of the application, the applicant gave evidence.  He said that Mr Sloan did not take proper instructions.  He called Mr Sloan as a witness.  The applicant waived privilege in respect of his communications with Mr Sloan.  There are a number of areas where the evidence of Mr Sloan conflicts with that of the applicant.  Mr Sloan gave his evidence in a clear and straightforward manner.  Most of it was supported by objective facts.  I find that he was honest and I accept his evidence.  By contrast, the applicant gave his evidence in a garrulous and unconvincing manner.  His evidence did not have the ring of truth.  Where there is a conflict, I prefer the evidence of Mr Sloan.

6. Mr Sloan stated the effect of his instructions.  His evidence was not effectively challenged in any way by the applicant’s counsel.  I accept his evidence.  The effect of his evidence was that the central issue was that the applicant had not made the third telephone call.

7. I summarise Mr Sloan’s evidence.  On 1 October 1996 Mr Sloan had been instructed by the Legal Services Commission to act for the applicant on a particular matter.  In the course of receiving instructions, the applicant asked Mr Sloan to take over the conduct of his defence to the charge of creating a false belief that an offence had been committed.  That defence was then being handled by another solicitor, Mr Lempens.  The conduct of the applicant’s defence had been assigned to Mr Lempens by the Legal Services Commission.  Mr Sloan properly advised the applicant that he could not act unless the Legal Services Commission reassigned the matter to him.

8. On 16 October 1996 Mr Sloan received a letter from the Legal Services Commission assigning the conduct of the defence to him.  At that stage, the applicant wished to plead not guilty.  He instructed Mr Sloan that he had fallen out with a former flatmate, Mr Freeman.  He was concerned at threats he alleged Freeman was making.  He had made two telephone calls to the police, who had come to the flat in answer to each.  Mr Sloan said his instructions were that the applicant denied making the third call, which gave rise to the alleged offence.  He said that the applicant gave his instructions to him at Mr Sloan’s office.  Although Mr Sloan has no cost entry or other record to reinforce his recollection, I accept his evidence. 

9. On the morning of the hearing, the police prosecutor, Sergeant Jakacic, produced some audio tapes which, it was alleged, were tapes of the telephone calls made to the police asking that police officers come to the flat then occupied by the applicant.  Mr Sloan and the applicant listened to those tapes.  Mr Sloan asked the applicant if he was the person speaking in each of three taped conversations.  The tapes were not played in the order of the telephone conversations.  The first tape played recorded the third request for police assistance.  The applicant admitted it was his voice.  The applicant listened to the tape of the other two conversations.  He denied that one of them was his voice.  Mr Sloan then advised the applicant that he did not believe that there was any merit in the defence.  He told him that he would have to inform the Legal Services Commission that he did not believe the applicant had a reasonable defence.  Mr Sloan then telephoned the Legal Services Commission. After that call, he informed the applicant that he could no longer act for him.  He very properly added that he would assist by making submissions on the applicant’s behalf if he decided to plead guilty. 

10. Sergeant Jakacic had informed Mr Sloan that, if the applicant pleaded guilty, he would not be seeking a conviction and that he would not seek any penalty other than payment of the costs incurred by the police and witness fees for witnesses who had come to the court that day.  After some discussion, the applicant said that he was prepared to plead guilty on the basis proposed by the police prosecutor.  Mr Sloan informed him that he could not guarantee that the magistrate would accept the proposal, since it was for the magistrate to determine what penalty would be ordered.  The applicant ultimately instructed Mr Sloan that he wished to plead guilty.  The instruction was reduced to writing and was in these terms:

    “I instruct my solicitor after considering all the advice given by my solicitor as to the prospects of being found not guilty, and notwithstanding that I say I am not guilty of the charge, I instruct you that I wish to plead guilty to the offence given that prosecution will not be seeking that a conviction be recorded against my name, that they will not be seeking any further penalty other than investigation costs of $198 and witness fees of $182 and will support my application for twelve months to pay all costs.  I acknowledge that there will [be] court costs and that ultimately it will be up to the magistrate to impose a penalty as he sees fit.”

The document is signed by the applicant.  The matter was then heard by the magistrate, who made orders which were on the same terms as the police prosecutor had sought.

1. The applicant had sworn an affidavit in which he said that he had not had an opportunity of attending Mr Sloan’s office in order to give him detailed instructions and that Mr Sloan had not taken a formal statement from him.  Mr Sloan admitted that he did not reduce the applicant’s instructions to a formal statement but says that the applicant did come to his office to give him full instructions.  I accept the evidence of Mr Sloan on this topic also.  It is to be noted that Mr Sloan sent a letter to the Legal Services Commission in which he set out his client’s instructions. Other notes and correspondence reinforce the evidence of Mr Sloan.  It is clear that Mr Sloan knew what his client’s instructions were.  I do not accept the applicant’s contention that Mr Sloan had not taken proper instructions.

2. In his evidence the applicant said that he did not deny making the third telephone call to the police and that he had so instructed Mr Sloan.  I do not accept that evidence.  In his affidavit sworn in support of the application for an extension of time in which to appeal, the applicant did not assert that fact.  Furthermore, that evidence is inconsistent with an endorsement made on the rear of the summons on 12 November 1996 by a magistrate which states that the issue is whether the applicant made the third telephone call. The applicant was present when submissions to that effect were made by Mr Sloan.  It is apparent that he did not then or at any later time dispute that Mr Sloan had then correctly stated the issue. In my view, the evidence given by the applicant is an opportunistic attempt by him to prop up his case.

3. In order to succeed on this appeal and be permitted to withdraw his plea of guilty, the applicant must show that it would be a manifest miscarriage of justice.  His defence to the complaint was that he had not made that third telephone call to the police seeking assistance. It is clear that, once the applicant had recognised the voice on the third tape as his own, he had no proper ground to defend the complaint. Although the applicant wished to plead not guilty, it is quite apparent that his defence would have failed.  Mr Sloan gave advice to that effect and that advice was correct.  There is nothing which shows any mistake or misapprehension of the charge which would justify allowing the appeal. It is apparent that there is no manifest miscarriage of justice if this appeal is dismissed and the applicant should not be permitted to withdraw his plea of guilty. 

4. It is apparent that the applicant understood the nature of the alleged offence and the allegations made against him.  Notwithstanding his own belief in his innocence, his decision to plead guilty was an informed decision made on the basis of the advice that he had received and for reasons which were, at bottom founded on considerations of expediency.  In those circumstances, an appeal against conviction cannot succeed unless it can be shown that the applicant was improperly advised: R v Cranssen (1976) 55 CLR 509; Stengle v Walls (unreported, 30 April 1985, Cox J Judgment No S4958).

5. I add that I do not accept the applicant’s contention that Mr Sloan exercised undue pressure on the applicant to plead guilty.  The advice which was given was proper and Mr Sloan behaved commendably in remaining and assisting the applicant to make submissions on a plea of guilty.

6. For all of these reasons, I am not satisfied that it is proper to extend the time within which to appeal.  The application for an extension of time is refused.  The applicant has lost his right of appeal.