Phan v DAVIES - [2007] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PHAN -v- DAVIES [2007] WASC 202

CORAM: BEECH J

HEARD: 2 & 17 AUGUST 2007

DELIVERED : 5 SEPTEMBER 2007

FILE NO/S: SJA 1035 of 2007

BETWEEN: DAN THANH PHAN
Appellant
AND
IVAN EDWARD DAVIES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M WHEELER
File No  :PE 8347 of 2005, PE 8348 of 2005, PE 8349 of 2005

Catchwords:

Criminal law - Appeal and application for leave to appeal - Convictions based on pleas of guilty - Whether miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr C S Bydder

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ciorra v Cole [2004] VSC 416; (2004) 150 A Crim R 189
Kahatapitye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542
Meissner v The Queen (1995) 184 CLR 132
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998)
R v Brooks [2007] SASC 35; (2007) 96 SASR 478
Truscott v The State of Western Australia [2007] WASCA 62
Vella v The State of Western Australia [2006] WASCA 129

BEECH J:

Introduction

On 10 May 2006 the appellant was convicted in the Magistrates Court on his plea of guilty on three traffic charges.
The three charges related to events on 14 January 2004 on Stirling Highway, Mosman Park. The appellant was convicted of:
(a)failing to stop after a traffic accident causing injury, contrary to s 54(1) of the Road Traffic Act 1974 (WA) (RT Act);
(b)failing to report an accident whereby an injury was caused to another person, contrary to s 55(1) of the RT Act; and
(c)dangerous driving, contrary to s 61(1) of the RT Act.
On 3 May 2007 the appellant filed a notice of appeal and application for leave to appeal against these convictions. Thus, the appellant requires an extension (of almost 11 months) of the time for commencing his appeal: Criminal Appeals Act 2004 (WA) s 10(3).
On 7 June 2007, Blaxell J ordered that the application for an extension of time, the application for leave and the appeal were all to be heard together.
The appeal notice states the ground of appeal as being that the appellant was not driving and was a passenger, and that his guilty pleas were 'forced'.

Summary

The first limb of the ground of appeal asserts his innocence of the charges to which he pleaded guilty; the second limb goes to the circumstances in which he entered his pleas of guilty.
The second limb ‑ that his pleas of guilty were 'forced' ‑ fails because it is not established by the evidence. As will be explained in more detail later in these reasons, the appellant's evidence respecting the circumstances in which he pleaded guilty to the three charges provides no support for a conclusion that his pleas were forced. Rather, the effect of his evidence is that he chose to enter pleas of guilty in the light of advice he received from his lawyer. There is a conflict in the evidence as to what advice he was given, with which I will deal later in these reasons, but that does not affect the point for present purposes.
The first limb of the ground of appeal invites attention to the guilt or innocence of the appellant of the charges to which he pleaded guilty. But that issue is, in a real sense, (subject to an exception referred to later in these reasons) foreclosed by a plea of guilty by an accused, at least so long as the plea is the result of an exercise of free choice by the accused: R v Brooks [2007] SASC 35; (2007) 96 SASR 478 [72]; Meissner v The Queen (1995) 184 CLR 132.
In Meissner (in a passage cited with approval and applied in Vella v The State of Western Australia [2006] WASCA 129 [29]) Dawson J said:
a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred (157).
See also Meissner 141 (Brennan, Toohey and McHugh JJ) and Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154 [55]. Thus, standing alone, innocence of a charge is not a ground of appeal against a conviction following a plea of guilty.
In Vella [26] Steytler P (with whom Wheeler and Buss JJA agreed) summarised the circumstances in which a plea of guilty will be set aside upon an appeal. It is not an easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. To succeed, the appellant must show there has been a miscarriage of justice. (See, in this regard, s 8(1)(b) and s 8(2) of the Criminal Appeals Act). There are three well recognised categories of cases in which appellate courts have been prepared to set aside pleas of guilty: first, cases in which the appellant did not understand the nature of the charge or intend to admit guilt; second, cases where upon the admitted facts the appellant could not in law have been guilty of the offence; and, third, cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed.
The fact that, following legal advice, the appellant received a higher sentence than had been anticipated does not give rise to a miscarriage of justice: Vella [28].
For the reasons explained below, in my opinion this case is not within any of the three well recognised categories in which pleas of guilty have been set aside, and the circumstances of the case do not otherwise give rise to a miscarriage of justice.
The appellant's ground of appeal, and his submissions in support of his appeal, do not suggest that the case falls within the first or second categories set out above. The claim, in the ground of appeal, that the plea of guilty was 'forced' is of a character which, if established, would, in all likelihood, fall within the third category and which invites attention to the evidence as to the circumstances in which the pleas of guilty were entered.

The circumstances surrounding the entering of the pleas of guilty

It is convenient to begin by identifying the matters which are common ground.
The appellant was represented by a legal practitioner when he pleaded guilty on 10 May 2006. She acted for the appellant in relation to these matters for some months up to and including May 2006.
Prior to 10 May 2006 the appellant had appeared in court and pleaded not guilty to the three charges and the matter had been set down for trial. The substance of the appellant's intended defence was that the incident in question had not occurred on Stirling Highway, Mosman Park, but rather on West Coast Highway (in City Beach or Swanbourne) and that the appellant had not been the driver of the car.
Not long before the hearing on 10 May 2006 the legal practitioner acting for the appellant received, by way of prosecution disclosure, a number of prosecution witness statements and other evidentiary material.
On 9 May 2006, the day before the hearing in front of the Magistrate, the appellant met with his lawyer and discussed the disclosed prosecution material, and the case generally. That such discussions occurred is common ground. It is also common ground that the appellant's lawyer advised him that the material received meant that he had been identified as the driver in the Mosman Park incident and that he did not appear to have a defence. However, there was a direct conflict between the evidence of the appellant, on the one hand, and his former legal practitioner on the other hand, as to the substance of the discussions they had in the light of that advice. I will return to that conflict later in these reasons.
On the date of the driving the subject of these charges, namely 14 January 2004, the appellant had a motor vehicle driver's licence. However, by the time the matter came before the Magistrate in May 2006, the appellant did not then have a current driver's licence. That is because it had expired and not been renewed some six months earlier.
On 31 October 2005 the Director General gave notice that, pursuant to s 48(1)(c) of the RT Act, he refused to renew the appellant's driver's licence on the ground that the Director General had reason to believe that the appellant suffered from a mental disorder or physical disability that was likely to impair his ability to control a motor vehicle.
It is common ground between the witnesses that the appellant and his legal practitioner had discussed, prior to 10 May 2006, the steps to be taken in order for the appellant to obtain a renewed driver's licence. However, the witness's evidence conflicted as to the substance and content of those discussions, in particular as to whether the solicitor advised the appellant that pleading guilty to the three traffic charges on 10 May 2006 would assist in obtaining a renewed driver's licence.
A transcript of the hearing before the Magistrate on 10 May 2006 was before me in the present appeal. In various significant respects, referred to further below, the appellant denied, in the course of his evidence, the accuracy of the transcript. He said that, to the best of his recollection, various exchanges recorded on the transcript did not occur. The transcript was certified as required by s 50A of the Evidence Act 1906 (WA) and so, by operation of that section, was admissible as evidence of the contents of the recording of proceedings before the Magistrate.
I have listened to the tape of the proceedings before the Magistrate on 10 May 2006. With the exception of a handful of individual words (immaterial to the issues), I accept the accuracy of the transcript of those proceedings.
Salient features of what occurred before the Magistrate, as revealed by the transcript, include the following.
At the outset, the appellant's legal practitioner explained that the appellant was changing his plea to a plea of guilty. She referred to the appellant having had difficulties with memory matters arising from a head injury received in a serious motor vehicle accident. She stated that the appellant had, until the day before the hearing, insisted that the accident had occurred on a different road when he had been a passenger with a friend who was driving. She explained that when she went through the prosecution disclosure material with him, he 'realised he'd got the date and time wrong and agreed to enter a plea of guilty' (ts 2; see also ts 6).
Each charge was individually put to the appellant and the appellant pleaded guilty to each of them. In each case, the charge made reference to the events having occurred at Mosman Park.
In the course of the hearing before the Magistrate, notwithstanding that he was represented by a legal practitioner, the appellant spoke on his own behalf to the court on several occasions. Immediately before he entered his plea of guilty to the third charge put to him, being the charge of dangerous driving, the appellant gave an account of what, in part, had occurred, saying:
I actually stopped the car and asked a man how … another guy is but he refused to answer my question. Didn't want to give me a go to saying anything or talk or anything (ts 4; see also ts 6 and 7).
The prosecutor stated the detailed facts relied upon by the prosecution. In summary, the prosecutor said that on Stirling Highway in Mosman Park the appellant drove his vehicle through an area where road works were being done. Signs said to travel at 40 km per hour. He drove much faster than that, causing a worker to attempt to avoid being hit by the appellant's car. The worker's foot collided with the appellant's car, causing minor injury. At the end of the works section the appellant was stopped by a supervisor, and spoke to the supervisor.
In response, the appellant's lawyer stated that the facts were admitted except as regards the circumstances when the appellant was stopped at the end of the roads work section after the vehicle that the appellant was driving had hit the road worker's foot.
Finally, in the course of the plea in mitigation, the appellant's lawyer informed the Magistrate that since October or November 2005 the appellant had not had a driver's licence so that there was no utility in imposing any suspension of his licence in respect of the dangerous driving charge.
The Magistrate imposed a fine of $300 for the dangerous driving charge, $75 for the failing to stop charge and $50 for the charge of failing to report the accident. In each case costs of $100.70 were ordered to be paid by the appellant.
In several important respects the appellant denied the accuracy of the transcript of proceedings before the Magistrate. He denied that the Magistrate had said that the charges related to events occurring in Mosman Park. He also denied that he had said anything to the Magistrate. Rather, he said, he left it to his lawyer to do the talking.
I do not doubt the appellant's genuineness in giving his evidence. His evidence is, however, in these respects, inconsistent with the record of proceedings before the Magistrate on 10 May 2006.
On 10 May 2006 I find that the appellant understood the substance of the charges which he faced and to which he pleaded guilty. He understood that the charges related to events said to have occurred in Mosman Park. Indeed, he admitted as much in the course of cross‑examination in his evidence before me.
The appellant spoke on his own behalf, on several occasions, in the course of the proceedings before the Magistrate. Taking into account all of the exchanges that occurred before the Magistrate it seems to me to be apparent that the appellant understood the substance of what was being said by the Magistrate and by his counsel. I so find notwithstanding the appellant's evident difficulties with the English language.
I turn to resolving relevant conflicts in the evidence of the appellant and his former lawyer. In doing so, I take into account that the appellant repeatedly acknowledged, in the course of his evidence before me, that his memory was not good.
In his evidence before me the appellant said that, in his discussions with his lawyer, right up to the day on which he pleaded guilty, he had maintained that he was not guilty, that the incident had not occurred at Mosman Park but on West Coast Highway, and that he had not been the driver. In her evidence, the appellant's former lawyer denied that this was so. Rather, she said that, while that had been the appellant's position until their meeting the day before the hearing, once she had had gone through the prosecution material and discussed the prospects and options with him, the appellant instructed her that he would plead guilty.
I accept the evidence of the appellant's former lawyer in this respect. It is supported by what the appellant himself said before the Magistrate, which involved an acceptance that he was the driver.
The appellant also said, in his evidence before me, that his lawyer advised him that the sooner he pleaded guilty to these charges the sooner he could get his driver's licence back and that, because he really needed to get his licence back, he pleaded guilty on that basis. He complains that he still does not have his licence back.
The appellant's lawyer denied that she gave the appellant any advice to this effect. On the contrary, she said that she told him that these charges would not have an impact on his licence because he did not have a licence and that after these charges had been finalised an application could be made to the State Administrative Tribunal to review the decision of the Director General to refuse to renew the appellant's driver's licence.
I do not accept that the appellant's solicitor gave him advice to the effect that the sooner that he pleaded guilty to these charges the sooner he would get his licence back or that if he pleaded guilty he would get his licence back. Such advice would have made little sense from a legal perspective in that there is no obvious connection between the resolution of the traffic charges and the prospects of success of an application to review the refusal to renew under s 48(1)(c) of the RT Act.
The appellant's lawyer's advice to him may, however, have created an impression on his part that he needed to have the traffic charges disposed of before progress could be made in taking steps to attempt to obtain a renewed driver's licence. However, the receipt of advice creating such an impression would not give rise to any miscarriage of justice in the convictions of the appellant upon his pleas of guilty.
There is nothing in the evidence of the appellant to support a conclusion that his pleas of guilty were, in any sense, 'forced'.

The circumstances of the entering of the pleas do not give rise to miscarriage of justice

In the light of these findings, I find that the guilty pleas in this case were not obtained by improper inducement, fraud or intimidation or anything of that character. Rather, the appellant made a decision, based upon his own assessment of his best interests, taking into account the legal advice which he had obtained. In so doing, the appellant understood the nature of the charges which he faced and intended to admit his guilt in respect of them.
Indeed, even had I accepted the appellant's evidence in its entirety, I would have come to the same conclusions as are set out in the preceding paragraph of these reasons. On the appellant's evidence, he understood the charges, believed he was not guilty of them but decided to plead guilty because (he believed) it would help him get his licence back more quickly. Applying the principles referred to earlier in these reasons, no miscarriage of justice is occasioned by the entry of the plea of guilty in those circumstances.
For those reasons, this case does not fall within the first or third of the three categories of circumstances referred to in [10] of these reasons.
It was not suggested by the appellant that the case fell within the second category, namely where upon the admitted facts the appellant could not in law have been guilty of the offence.
However, the respondent properly raised an error in respect of one of the three charges. I will deal with that issue below.
I find that there is nothing in the circumstances in which the pleas of guilty were entered which gives rise to a miscarriage of justice.

The effect of the erroneous reference to section 55

One of the charges of which the appellant was convicted (PE 8348 of 2005) was in terms that he failed to report an accident whereby an injury was caused to another person, contrary to s 55(1) of the RT Act. The reference to s 55 in the charge was an error. Section 56(1) should have been referred to.
Section 55 creates an offence of failing to report an accident whereby damage to property is caused; s 56 creates the offence of failing to report an accident whereby an injury is caused to another person. The charge, as read to the appellant, related to an accident whereby injury was caused to another person, not damage to property. That is also what the facts stated by the prosecutor (and accepted by the appellant's counsel before the Magistrate) related to. This was evidently understood by the appellant, as appears from his comments at pages 4 and 6 of the transcript of proceedings before the Magistrate.

The respondent made submissions to the effect that if amendment of the complaint were needed, the Supreme Court has power under s 14 of the Criminal Appeal Act to allow an amendment of the complaint and should do so in this case. Consideration of that submission would give rise to a question whether the power to amend the complaint endures after a conviction has been recorded. However I do not consider that any amendment of the complaint is required.
The elements of the offence committed by contravening s 56 were all stated in the complaint. These were that:
(a)the appellant was the driver of a vehicle;
(b)in the course of his using the vehicle on a road, an accident occurred;
(c)by the accident, bodily injury was caused to a person;
(d)he did not report the accident forthwith to the officer in charge of the nearest police station; and
(e)he was not disabled by personal injury from doing so.
The numeration of the section of the statute against which the offence is committed is not an element of the offence. See, for example, Ciorra v Cole [2004] VSC 416; (2004) 150 A Crim R 189 [44] ‑ [60].
The error in the numeration of the section in the complaint is and was evident on any reasonable reading of the charge and gave rise to no confusion or prejudice; cf, in a slightly different context, Kahatapitye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542 [9]; Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998). The offence to which the appellant pleaded guilty and of which he was convicted was, unambiguously in my opinion, an offence against s 56 of the RT Act.
No complaint is made, by way of ground of appeal or submission, by the appellant as regards the erroneous numeration of the section against which this charge was committed. The error does not, in my opinion, give rise to a miscarriage of justice in the appellant's conviction for that offence.

Conclusion

The appellant requires an extension of almost 11 months of the time for commencing his appeal. The appellant did not provide any explanation, in his evidence or submissions, for that delay. In circumstances where there is substantial and unexplained delay then, absent exceptional circumstances, an extension of time will not be granted unless it is shown that there will be a miscarriage of justice if the extension is not granted: Truscott v The State of Western Australia [2007] WASCA 62 [1].
For the reasons given, it has not been shown that any miscarriage of justice is occasioned by the conviction of the appellant for the three traffic charges to which he pleaded guilty on 10 May 2006. Accordingly, the application for an extension of time must be refused.