Piepkorn v Police No. Scciv-04-242

PIEPKORN v POLICE
[2004] SASC 137
Magistrates Appeal: Criminal

ANDERSON J: In this matter the appellant has appealed following a conviction recorded against her in the Mount Barker Magistrates Court on 22 January 2004.
The appellant had been charged with failing to give way to an oncoming vehicle and turning right contrary to Rule 72(5)(b) of the Australian Road Rules. The charge arose from an accident which occurred on 1 September 2003 at the intersection of Burnside Road and Mine Flat Road, Strathalbyn. Prior to the trial the appellant had indicated that she intended pleading not guilty but on the morning of the trial she pleaded guilty before the Magistrate at Mount Barker. The appellant was convicted and fined $45.
The appeal to this Court is against both the conviction and the sentence imposed by the Magistrate.
The appellant says that she was coerced and intimidated by the police officers into entering her plea of guilty. The police officers involved include the officer who went to the scene of the accident Constable Bowden and Sergeant Illingworth the prosecutor on the actual day the matter was listed for hearing.
The appellant gave evidence before me as to her version of what happened at the relevant time and then the two police officers gave evidence. Sergeant Illingworth had filed two affidavits in relation to this matter and because the appellant represented herself I put to her the main details set out in those affidavits. Essentially, the appellant agreed with the affidavits of Sergeant Illingworth. The appellant claimed that two photographs were not taken soon after the accident, as Constable Bowden said, but were taken at a later time and that the tracks shown on the dirt road were tracks left by another vehicle at another time and were not related to the accident.
Sergeant Illingworth had said in his affidavit words to the effect:
“The court has to make a determination of fact, what do you think they will believe when they see these photos? Isn’t it possible that you might have been on the wrong side of the road, just a little bit, given that there are no lines marked?”
The appellant agreed that Sergeant Illingworth did say that, or something like it, and she agreed finally that she did say that she might have been a little bit over the middle of the road.
There was then a discussion between Sergeant Illingworth and the appellant and she alleges that he said “you go into court and plead guilty and I’ll make it so you don’t get a conviction”. The appellant said that at that time she was nearly crying with pain from a headache and she could not argue the point anymore and agreed to plead guilty.
Sergeant Illingworth denied that version of events and gave what seems to me to be a perfectly logical explanation of what he said at the time. He said that a conversation relating to the recording of a conviction did take place. He indicated that there were a number of sentencing options that were available to the Magistrate. He discussed these options with her. He said he could not and did not give her any assurance as to what the Magistrate might do. He did not know this particular Magistrate. He agreed that he did say that one of the possibilities was that there might be a penalty imposed without a conviction being recorded. I find that this is the most likely version of the disputed facts.
Going back to the scene of the accident, the appellant alleges that Constable Bowden approached the appellant and accused her of being drunk. He denied this. He said he asked both the appellant and the driver of the other vehicle involved in the accident to take an alcotest which he was required to do and that both tests indicated a zero reading. I find that Constable Bowden is telling the truth.
The circumstances of the accident itself are conveniently summarised in the affidavit of Sergeant Illingworth dated 17 March 2004. His affidavit indicated that what he said to the Magistrate in describing the circumstances of the accident was to the effect of:
“Your Honour, at about 3.45pm on Monday 1 September 2003, police attended at the intersection of Burnside Road and Mine Flat Road, Strathalbyn in relation to a motor vehicle collision. Upon arrival at the scene, police observed two vehicles, a red Holden Kingswood sedan registration (SA) SGC-348 and a blue Ford Falcon station wagon registration (SA) VKY-096, wedged together at the north eastern edge of the intersection. From the position of the vehicles and the skid marks, it was obvious that the driver of the Holden Kingswood (the defendant) was travelling south west on Burnside Road when she cut the corner and failed to give way to an oncoming vehicle, namely the blue Ford Falcon, while attempting to turn right into Mine Flat Road. Burnside Road and Mine Flat Road form a T junction, where Burnside Road is the continuing road and Mine Flat Road is the ending road. There are no signs erected at the junction. Both drivers were interviewed at the scene and details obtained for a vehicle collision report. The driver of the blue Ford Falcon, Ms Vonnie van Oevelen, stated she was travelling in the opposite direction to the defendant. As she approached the junction of Mine Flat Road and Burnside Road, having just come over the crest of the hill on Burnside Road, she saw the defendant’s vehicle coming towards her in the middle of Burnside Road. Ms van Oevelen started to slow down and stuck to the far left side of the road, applied her brakes, but was unable to avoid a collision. She stated that the front right side of her car collided into the front of the defendant’s car and they came to rest at the north eastern end of the intersection on Burnside Road. Ms van Oevelen incurred about $4,000 of damage to her car, which was written off. The defendant stated that she was travelling south west on Burnside Road at about 50km per hour. According to the defendant, when she went to turn right into Mine Flat Road she diverged (by an undisclosed amount) onto the incorrect side of the road. She braked and a collision resulted. The road was unsealed and wet at the time of the collision. Weather was overcast and raining intermittently and traffic was light. Police photographed the skid marks of the scene which indicated clearly that the defendant’s vehicle was on the wrong side of the road and cutting the corner when the collision occurred.”
As indicated, photographs were taken of the skid marks at the scene although they were disputed by the appellant as to being the skid marks involved in the accident. I am confident and find from the evidence of Constable Bowden that the skid marks were related to the accident. When he arrived at the scene the vehicles were still in the position where they came to rest after impact. The damage caused to the appellant’s motor vehicle is consistent with the version of events set out by the prosecutor at the time of the guilty plea.
The appellant says she pleaded guilty because she was coerced prior to the hearing in Mount Barker, because she had a headache and also because she was wanting to return to look after her sick mother. The appellant is no stranger to legal proceedings. She is an experienced litigant and has conducted litigation on her own behalf including in the District Court, the Supreme Court and the High Court. The appellant told me that with some pride at the hearing of the appeal and had also told the prosecutor of her litigious experience in a conversation that she had with him when he was discussing with her the question of legal representation. I asked her if on the day she pleaded guilty she knew the difference between pleading guilty and not guilty. The appellant said she did. The appellant said that she pleaded guilty under the pressure of the police after they showed her the pictures. The appellant then set about an attempt to show that the pictures were not taken immediately after the accident and did not show the relevant skid marks.
The appellant claims she was intimidated. I do not accept this claim. I find it impossible to believe that she could be intimidated. As I have indicated, she is an experienced litigator and has taken on many complex matters in superior courts representing herself. In short, I reject her evidence that she pleaded guilty because of coercion. I accept the evidence of Sergeant Illingworth as to the circumstances of the discussion that took place before she entered into the courtroom and pleaded guilty. The appellant was experienced enough to know that she could easily have asked for an adjournment had she not been feeling well or if she needed to return to her mother.
I find that it was an afterthought of the appellant to attempt to change her plea probably because she realised that she may have compromised her position in relation to any civil claim by the plea of guilty. That is particularly referred to by Sergeant Illingworth in his affidavit in which he says that on a date shortly after the trial he received a telephone call from the appellant stating that she now thought that she should not have entered a guilty plea as by doing so she felt that she had prejudiced her position in relation to a civil claim. He said that he advised her to seek immediate legal advice.
Significantly, the appellant did not challenge that part of his affidavit in her own evidence and did not seek to cross-examine him in relation to that aspect.
This Court could quash the conviction following the plea of guilty if it were satisfied that the appellant pleaded guilty without appreciating the nature of the charge or if the plea of guilty was procured by pressure and threats such that a miscarriage of justice occurred. See R v Frantzis (1996) 66 SASR 558, Meissner v The Queen (1995) 184 CLR 132, Pallares v Police [1999] SASC 134, Police v Warren [2000] SASC 285 and Soteriou v Police [2000] SASC 256.
In Meissner, Dawson J discusses this principle (at 157):
“It is true that 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. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.”
More recently this principle was also discussed and adopted by Duggan J in Soteriou and by Lander J in Pallares. With respect I also adopt that statement of principle.
I find that the appellant clearly appreciated the nature of the charge and that she intended to plead guilty. The plea was not procured by pressure and threats in my view. I accept the evidence of the police officers and reject the evidence of the appellant.
Assuming that the photographs and the description of the accident available from the prosecution could be proved it was always likely that the appellant would be convicted. In addition, the appellant also admitted being on the wrong side of the road.
In my view, there is no possibility that a miscarriage of justice occurred in this instance.
I likewise reject the appeal in relation to the sentence being manifestly excessive. The sentence of a $45 fine in my view is particularly lenient. Both appeals therefore are dismissed.

[2004] SASC 137

27 May 2004