Police v Donnelly
[2023] ACTMC 14
•9 June 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Donnelly |
Citation: | [2023] ACTMC 14 |
Hearing Dates: | 6 April 2023 and 24 May 2023 |
DecisionDate: | 9 June 2023 |
Before: | Magistrate Temby |
Decision: | See [48] |
Catchwords: | CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – considerations bearing upon “interests of justice” test |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 R v Boyle [2012] ACTSC 69 R v Cringle [2011] ACTSC 27 R v Fairclough [2019] ACTSC 215 R v Mambor [2010] ACTSC 30 R v Sinclair [2012] ACTSC 64 The Queen v Francisco Javier Gomez (2007) 1 ACTLR 145 White v R [2022] NSWCCA 241 |
Parties: | Oliver Masters ( Informant) Brandon Donnelly ( Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions ( Informant) Self-represented ( Defendant) |
File Numbers: | CC 4410-4412 of 2021 CC 8433–8435, 8437, 8440 of 2021 CC 8442–8446 of 2021 CC 9181 of 2021 CC 7293 of 2022 |
MAGISTRATE TEMBY
Introduction
The Defendant has brought a plea traversal application with respect to 14 offences to which he has entered a plea of guilty. There are two groups of offences.
First Group of Offences
The first group of offences (charges CC2021/4410, CC2021/4411 and CC2021/4412) (First Group) arise from conduct engaged in by the Defendant on 26 February 2021. The facts relevant to the First Group of offences are set out in a Statement of Facts which was admitted into evidence at the hearing of the Defendant’s plea traversal application on 24 May 2023 as Exhibit 4. The key facts are:
(a)police were driving an unmarked police vehicle on Bowen Drive, a road in Barton, in the ACT;
(b)a car, an Audi A3, driven by a male driver, passed the police at a speed greater than the posted speed limit of 60 km/h. Police estimated the vehicle to be travelling at 70 to 80 km/h;
(c)police followed the car onto Parkes Way, a road in Russell and Acton and, through the activation of their emergency lights and sirens, caused the driver to stop the car;
(d)police identified the driver as the Defendant; and
(e)police conducted a number of checks, which revealed that:
(i)the Defendant did not hold an ACT driver licence;
(ii)the Defendant’s learner’s driver licence had been suspended and the Defendant had not reapplied for a driver licence; and
(iii)the car was unregistered and uninsured (it had not been registered since 2 January 2021).
These facts support the charges brought against the Defendant in the First Group of offences for:
(a)an offence against s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) – driving a motor vehicle on a road or road related area in circumstances where the Defendant was not the holder of an Australian driver licence that authorised the Defendant to drive a motor vehicle (charge CC2021/4410);
(b)an offence against s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) – using an unregistered registrable vehicle (defined to include any motor vehicle except a light rail vehicle) on a road or road related area (charge CC2021/4411); and
(c)an offence against s 289(1) of the Motor Accident Injuries Act 2019 (ACT) – using an uninsured motor vehicle on a road or road related area.
Second Group of Offences
The second group of offences (charges CC2021/8433 – 8435; CC2021/8437; CC2021/8440; and CC2021/8442 – 8446 and CC2021/9181) (Second Group) arise from conduct engaged in by the Defendant on 12 August 2021. The facts relevant to the Second Group are set out in a Statement of Facts which was admitted into evidence at the hearing of the Defendant’s plea traversal application on 24 May 2023 as Exhibit 5. The key facts are:
(a)the Defendant’s NSW driver licence was suspended on 1 May 2020 and cancelled on 2 August 2020;
(b)at approximately 10:23pm on 12 August 2021, police observed an Audi A3 travelling on Ginninderra Drive in Latham in the ACT. They observed a car crossing the incorrect side of a roundabout intersection between Ginninderra Drive and Florey Drive and turn right into Florey Drive, rather than driving clockwise around the roundabout;
(c)police followed the vehicle on Lhotsky Street, Cartwright Street and MacIntyre Place in Charnwood. The driver turned the car’s headlights off for a short time when the car was on Cartwright Street;
(d)on MacIntyre Place, the police activated their emergency lights, signalling for the driver to stop, however the vehicle proceeded to the end of MacIntyre Place before conducting a U-turn and proceeding back onto Cartwright Street. The vehicle travelled for approximately 300 metres before stopping;
(e)police got out of their vehicle and approached the vehicle. They saw a man whom they later identified as the Defendant, as the driver and only occupant;
(f)police feared the Defendant might drive away, so they placed a tyre deflation device under the right rear side tyre;
(g)Senior Constable McCarthy spoke to the Defendant:
(i)he asked the Defendant why he took so long to stop the vehicle – the Defendant stated that he didn’t want to stop on MacIntyre Place and didn’t want to wake people up;
(ii)he asked the Defendant if there was a reason he turned off the vehicle’s headlights on Cartwright Street – the Defendant said that he always turns off his lights when he gets close to home;
(iii)he asked the Defendant where he lived – the Defendant refused to state where he lived; and
(iv)he asked the Defendant to produce his driver licence – the Defendant replied, “licence for what?”. Senior Constable McCarthy explained that he required a driver licence and the Defendant replied, “what’s a licence?”;
(h)Senior Constable McCarthy attempted to subject the Defendant to a roadside alcohol screening test, however the Defendant did not consent;
(i)the Defendant then began winding up his window. Constable Bigmore, another police officer present, opened the driver’s door because he believed that the Defendant was refusing a roadside alcohol screening test and feared that he may attempt to drive away. The Defendant attempted to close the door, however Constable Bigmore took hold of him, directing him not to drive away and to exit the vehicle;
(j)at 10.27pm, Senior Constable McCarthy arrested the Defendant for failing to provide a roadside alcohol screening test. The Defendant resisted both police officers, holding onto the steering wheel to prevent them from removing him from the vehicle. Constable Bigmore gave the Defendant several directions to exit the vehicle;
(k)the police officers ultimately managed to remove the Defendant from the car, albeit that the Defendant continued to resist them once outside the car. The Defendant attempted to take Senior Constable McCarthy’s firearm and Constable Bigmore’s taser. He ripped the taser from Constable Bigmore’s vest;
(l)the Defendant then adopted a “fighting stance”, clenched his fists and swung his arms. He struggled with the police officers, knocking Senior Constable McCarthy in the mouth (causing his lip to bleed) and straining Constable Bigmore’s ring finger on his left hand;
(m)fearing that they might be injured, Senior Constable McCarthy drew and aimed his Conducted Energy Weapon (CEW) at the Defendant, warning him that he would be subject to the CEW if he didn’t stop resisting police. The Defendant continued to resist, and Senior Constable McCarthy deployed the CEW on the Defendant. This caused the Defendant to momentarily stop resisting and the police placed the Defendant on the ground. The Defendant ripped Constable Bigmore’s jacket, causing his rank epaulette and holder to rip off;
(n)Constable Bigmore attempted to handcuff the Defendant, however he clenched his fists and placed his arms against his body. Constable Bigmore directed the Defendant several times to place his hands behind his back, however he refused. Senior Constable McCarthy applied the CEW on the Defendant again, which allowed Constable Bigmore to handcuff the Defendant;
(o)at the Watch House, Protective Services Officer Grieves advised the Defendant that he needed to ask him some questions in relation to COVID-19. The Defendant twice refused to answer any questions;
(p)Protective Services Officer Grieves twice asked the Defendant to wear a mask and he refused;
(q)Protected Services Officer Grieves attempted to close the cage door of the police vehicle, however the Defendant kicked the door towards Protective Services Officer Grieves, which caused his middle finger on his right hand to hyper extend, resulting in significant pain. The door also connected with the back of Protective Services Officer Grieves’ right arm, causing significant and immediate pain and bruising to the area;
(r)Protective Services Officer Grieves and Protective Services Officer Nihill attempted to remove the Defendant from the police vehicle, however the Defendant resisted by placing his legs on either side of the cage door. Ultimately, the police officers were able to extract the Defendant from the cage, however the Defendant continued to resist the police officers. Additional police officers joined Protective Services Officers Grieves and Nihill and assisted them to place the Defendant in a cell at the ACT watch house, despite his resistance;
(s)police conducted a number of checks, which revealed that:
(i)the driver of the car was the Defendant;
(ii)the licence plates that were on the Defendant’s car were last registered to a Holden Astra; and
(iii)the registration for the vehicle expired on 2 January 2021;
(t)during the various incidents, Senior Constable McCarthy and Constable Bigmore were dressed in full AFP uniform, with full accoutrements, and Protective Services Officers Grieves and Nihill were in full AFP uniform. None of the police officers gave permission for the Defendant to assault them; and
(u)all the roads the Defendant drove on were roads or road related areas as defined in the road transport legislation and were open to and used by the public.
The facts outlined above support the charges brought against the Defendant in the Second Group of offences for:
(a)three offences against s 26A of the Crimes Act 1900 (ACT) – assault of frontline community service providers, being the assaults of Constable Bigmore, Senior Constable McCarthy and Protective Services Officer Grieves on 12 August 2021 (charges CC2021/8433 – 8435);
(b)an offence against s 361(1) of the Criminal Code 2002 (ACT) – resist Territory public official, namely Constable Bigmore, Senior Constable McCarthy and Protective Services Officer Grieves on 12 August 2021, in the exercise of their functions as public officials (charge CC2021/8437);
(c)an offence against s 22C(1)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – refuse to undergo an alcohol screening test (charge CC2021/8440);
(d)an offence against s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) – unlicensed driver (charge CC2021/8442);
(e)an offence against s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) – use unregistered, registrable, vehicle (charge CC2021/8443);
(f)an offence against s 289(1) of the Motor Accident Injuries Act 2019 (ACT) – use uninsured motor vehicle (charge CC2021/8444);
(g)an offence against s 6(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) – negligent driving (charge CC2021/8445);
(h)an offence against s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT) – possess false registration plates, calculated to deceive (charge CC2021/8446); and
(i)an offence against s 116(3) of the Crimes Act 1900 (ACT) – damage property not exceeding $5,000, being an AFP issued high visibility jacket belonging to the AFP (charge CC2021/9181).
Pleas
In relation to the First Group of offences:
(a)The Defendant plead guilty on 16 December 2021; and
(b)the Defendant confirmed his plea of guilty on 19 December 2022.
In relation to the Second Group of offences:
(a)the Defendant indicated a plea of guilty on 17 December 2021;
(b)the Defendant plead guilty on 28 January 2022; and
(c)the Defendant confirmed his plea of guilty on 19 December 2022.
The Defendant now seeks to withdraw his guilty pleas for each of the First and Second Group of offences.
Hearing of the Defendant’s plea traversal application
The Defendant’s plea traversal application was listed for hearing on 6 April 2023 before me. It commenced on that date and continued on 24 May 2023.
The Defendant represented himself and the Prosecution was represented by Mr Leggett of the DPP.
On the first day of hearing, the parties made submissions. I accepted some of the Defendant’s submissions as his evidence in support of his application.
On the second day of hearing, the Defendant was cross-examined by Mr Leggett under oath and Mr Leggett made further submissions. The Defendant confirmed that there were no additional submissions he wished to make.
The following documents were tendered in evidence:
(a)an email sent by the Defendant to an Associate of Magistrate Taylor on 10 February 2023 (admitted as Exhibit 1);
(b)a “Conditional Acceptance” document filed by the Defendant (admitted as Exhibit 2);
(c)a Pre-Sentence Report dated 2 March 2022, which was prepared in relation to the First and Second Group of offences (admitted as Exhibit 3);
(d)a Statement of Facts for the First Group of offences (admitted as Exhibit 4); and
(e)a Statement of Facts for the Second Group of offences (admitted as Exhibit 5).
Documentary evidence
The Defendant’s email to Magistrate Taylor’s Associate sets out the basis for the Defendant’s plea traversal application. The Defendant stated in the email that:
(a)he wished to contest the assault charges brought against him and suggested that he was assaulted by the relevant police officers and that his actions were in self-defence;
(b)he wished to contest the allegations that:
(i)he drove the wrong way around a roundabout;
(ii)he adopted a fighting stance and had swinging arms – he suggested that he simply tried to push the police officers off him after he had been assaulted by them; and
(iii)he attempted to grab a senior constable’s gun and attempted to take a taser from another officer;
(c)the police stole the key to his car; and
(d)the Canberra Times defamed him.
Between the first and second hearing days, the Defendant filed a document titled “Conditional Acceptance”. It was the subject of discussion at a mention of the matter on 24 April 2023.
In summary, the Conditional Acceptance document stated that:
(a)the Defendant would conditionally accept the charges brought against him (which I took to mean that he would discontinue his plea traversal application), by acting “as the assumed trustee” if he was paid compensation in the amount of $775,900 “for each day … that I am forced to act as the trustee. If am to be treated as the assumed trustee, I will need to have made for me a full unrestricted and unregulated class C, R driver’s license which holds private, non-corporate, non-commercial status to prevent harassment as well as any potential future assault or illegal kidnappings and unlawful deprivations from public policy enforcers (police officers)”;
(b)if the offer was refused, the Defendant would seek to raise a number of issues, in particular:
(i)”Do you wish to make claim to the assumption that the all-uppercase text on the charge sheet is true and correct English?”;
(ii)“In relation to the charge sheet would you like me to ask if you are in fact passing-off something which it is not? Which then falls under the act of uttering or tendering a counterfeit as well as knowingly possessing false documents.”; and
(iii)“Do you wish to admit your deceptive conduct?”.
The Pre-Sentence Report identifies that the Defendant denied having a history of alcohol misuse or drug use, and said that he does not consume alcohol. The Defendant reported having no issues in relation to his physical health, but experiences some anxiety (undiagnosed). ACT Health advised that they did not have any records in relation to the Defendant. The Defendant reported that he worked as a bar attendant and that he is financially stable with no significant debts.
The Pre-Sentence Report contains a section which sets out the Defendant’s attitude towards his offences. I have set out that section of the report below.
During the discussion about the offender’s attitude to offences, the offender provided inadequate responses, therefore, his capacity to process his criminal actions appears to be questionable. The offender stated he has read the AFP Statement of Facts, however, was unable to agree or disagree with the Statements as he believes them to be fiction. He further provided such comments or words to the effect:
He was unsure if the Police Officers [referred to AFP Statement of Facts] were “correct Police Officers”
As per the AFP Statement of Facts, he was travelling in a car “on my way to somewhere and was interrupted” [by Police Officers]
He stated he was not driving because “driving” means getting paid for it
He stated that a car is not a motor vehicle
He believes people do not need a licence to operate a car but should not operate a car if they “do not trust they are capable” of doing so
The offender stated “there is no Law” and there is no need for the Law
The offender does not believe his actions placed the community at risk.
Overall, the offender failed to take any responsibility for his criminal actions, provided no insight into his offending behaviour, demonstrated no victim empathy and did not recognise his actions to be unlawful in nature. Furthermore, in relation to the offences Assault Frontline Community Service Provider, the offender blamed the Police Officers for the assault, the offender stated the Police used a taser on him which he referred to as “an attempted murder”.
I have summarised the relevant Statements of Facts earlier in these reasons.
Defendant’s position
At the hearing of the plea traversal application, the Defendant said that he did not want to make any claims in relation to the issues identified in the “Conditional Acceptance” document. He said that he was just asking questions.
He also accepted that the statements referred to in the Pre-Sentence Report are not part of his present application. I note in this respect that, while the comments the Defendant made to the authors of the Pre-Sentence Report were made after he entered his pleas of guilty (on 16 December 2021 and 28 January 2022), the Defendant confirmed his pleas of guilty on 19 December 2022, which was well after the date of the Pre-Sentence Report (2 March 2022).
The Defendant’s position, then, is set out in his email of 10 February 2023 and in his statements at the hearing of the application.
At the hearing, his position in relation to:
(a)the First Group of offences was that:
(i)he felt an element of guilt when he pleaded guilty, however he did not know then what he knows now; and
(ii)he wants to question the authority of the police to pull him over. He said that he hasn’t taken legal advice in relation to this position; and
(b)the Second Group of offences was that:
(i)he entered a plea of guilty because of a restriction of knowledge. He didn’t really know what he wanted to do. He stated that he believes that Legal Aid advised him to plead guilty when he saw them at court, but his memory is a bit ‘foggy’; and
(ii)he now considers that his reaction after he was pulled over by the police was an act of self-defence and that, after reflecting on what happened, he has changed his decision in terms of his guilty plea.
The Defendant’s evidence under cross-examination was, relevantly, that:
(a)he received assistance from the Aboriginal Legal Service (ALS) in relation to both groups of offences before pleading guilty;
(b)in relation to the First Group of offences, the Defendant:
(i)described the assistance as informal because he didn’t lodge a legal assistance request and only spoke to someone over the phone; and
(ii)initially said that he couldn’t say what the advice was about, however he subsequently accepted that he did discuss the charges with ALS, that they provided advice about the charges, and that their advice was to plead guilty. He said that the advice had nothing to do with the authority of the police to pull him over;
(c)in relation to the Second Group of offences, the Defendant:
(i)said that ALS’ advice was to plead guilty;
(ii)said that ALS also provided him with representation;
(iii)accepted that the charges to which the Defendant pleaded guilty were the result of an agreement reached between the Prosecution and ALS, which resulted in the Prosecution withdrawing other charges;
(iv)accepted that he agreed to the plea agreement, that he had read the Statement of Facts and agreed to the Statement of Facts being tendered;
(v)stated that he provided his agreement with respect to the contents of the Statement of Facts because he hated coming into court and wanted to get it over and done with; and
(vi)stated that he doesn’t agree with what is set out in the Statement of Facts, having reflected on its subsequently;
(d)he does not accept that he was “driving” a “motor vehicle” or a “car” when he was pulled over by police - my impression of the Defendant was not that he did not understand what either a “motor vehicle” or a “car” is, but rather that his answers were evasive in this respect. He ultimately conceded that he was in a “private conveyance” and had caused it to move before police approached him;
(e)he had said previously that he was in a self-driving car. He said that it could have been;
(f)he said that people only “drive” cars to monetarise their actions;
(g)he did not understand Mr Leggett’s question as to whether the Defendant was making any claim he could in the hope that he could withdraw his plea and avoid being sentenced again, my impression of the Defendant was that he did understand the question and that he was being deliberately evasive.
The Law
The Court has a discretion to allow a plea of guilty to be withdrawn. The onus is on the Defendant to persuade the Court to exercise that discretion, as outlined in White v R [2022] NSWCCA 241 (White) at [68].
However, the test to be applied in deciding whether to exercise the discretion is not entirely clear. The Prosecution submitted that I should follow the NSW Court of Criminal Appeal decision in White, which concluded that the “interests of justice” test should be adopted in relation to an application to withdraw a plea prior to conviction. The Prosecution submitted that I should not follow the “miscarriage of justice” test adopted in the ACT Court of Appeal decision of The Queen v Francisco Javier Gomez (2007) 1 ACTLR 145 (Gomez).
White
The NSW Court of Criminal Appeal in White comprehensively analysed the leading plea traversal cases before concluding that:
(a)a defendant seeking to withdraw a guilty plea after conviction must demonstrate a ‘miscarriage of justice’ has occurred (at [58]). As the Court noted, that is because there are a limited number of bases upon which the appeal court may allow an appeal (under s 6 of the Criminal Appeal Act 1992 (NSW) in NSW), and only one of those would be applicable in circumstances where the court at first instance has convicted the Defendant based on a guilty plea, being that there was a miscarriage of justice; and
(b)a defendant seeking to withdraw a guilty plea before conviction must demonstrate that the ‘interests of justice’ require it (at [59]-[62]). As the Court noted at [59], there is no statutory test which is applicable in this scenario. Further, the Court noted, at [62]:
A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal. The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea …
Relevantly, I note that the bases for an appeal from a conviction in the ACT, under s 37O(2)(a) of the Supreme Court Act 1933 (ACT), are similar to the bases for an appeal under s 6 of the Criminal Appeal Act 1992 (NSW). Paragraph 37O(2)(a) provides three bases upon which an appeal from a conviction may be allowed, two involving errors in the verdict (of the jury) or judgment (of the court) and the third being, relevantly, ‘on any other ground there was a miscarriage of justice’.
At [64], the NSW Court of Criminal Appeal discussed the key difference between the ‘interests of justice’ and ‘miscarriage of justice’ tests, stating that:
… A positive conclusion on the balance of probabilities that there would be a miscarriage of justice if a plea was not permitted to be withdrawn is, no doubt, the paradigm case where it will be in the interests of justice to permit withdrawal of a plea. But equally, it may also be in the interests of justice to permit a plea to be withdrawn if there is a risk of a miscarriage of justice, provided that the risk is a real and not fanciful one.
At [65], the NSW Court of Criminal Appeal set out a list of considerations relevant to the ‘interests of justice test’. The Court stated that:
The interests of justice test is broader and may focus on matters going beyond the integrity of the plea, although that will very often be the focal point of the inquiry. A non-exhaustive list of factors affecting the interests of justice will include:
· the circumstances in which the plea was given;
· the nature and formality of the plea, involving as it does the admission of all the formal elements of the offence;
· the importance of the role of trial by jury in the criminal justice system;
· the time between the entry of the plea and the application for its withdrawal;
· any prejudice to the Crown that might arise from the withdrawal of the plea;
· the complexity of the elements of the charged offence;
· whether all of the relevant facts upon which the Crown intended to rely were fully known to the accused;
· the nature and extent of legal advice received by the accused before entering the plea;
· the seriousness of the alleged offending and thus the likely consequences in terms of penalty;
· the subjective circumstances of the accused;
· any intellectual or cognitive impairment suffered by the accused, notwithstanding their fitness to plead;
· any reason to suppose that “the accused [was] not thoroughly aware of what he [or she was] doing”;
· any extraneous factors that bore upon the making of the plea at the time it was made, including inducement by threats, fraud or other impropriety;
· whether the accused has been persuaded to enter a plea by reason of imprudent and inappropriate advice tendered by his or her legal representatives;
· any explanation that has been proffered by the accused for the application to withdraw their guilty plea;
· any consequences to victims, witnesses or third parties that might arise from the withdrawal of the plea; and
· whether, on the material before the Court, there is a real question about the accused’s guilt to the charge in respect of which the plea has been entered.
At [70] of White, the NSW Court of Criminal Appeal listed a number of cases where the interests of justice would warrant the withdrawal of a plea of guilty, namely where:
· the nature of the charge to which the plea has been entered is not appreciated;
· the plea is not a “free and voluntary confession”;
· the “plea [is] not really attributable to a genuine consciousness of guilt”;
· there has been a “mistake or other circumstance affecting the integrity of the plea as an admission of guilt”;
· the plea has been “induced by threats or other impropriety” and the defendant would not otherwise have pleaded guilty;
· the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt; and
· “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt”.
Gomez
As the prosecution noted in submissions, in Gomez the ACT Court of Appeal adopted a ‘miscarriage of justice’ test in determining an appeal from a decision of Chief Justice Higgins to accede to the defendant’s application to withdraw his plea of guilty. He had pleaded guilty at the commencement of his trial and the Court had recorded a conviction.
The basis upon which Higgins CJ heard the defendant’s application to withdraw his guilty plea is unclear from the decision of the Court of Appeal. It appears not to have been an appeal for the purposes of s 37O(2)(a) of the Supreme Court Act 1933 (ACT).
I note that, at first instance, Justice Connelly had found that, in circumstances where he had entered a conviction, he did not have jurisdiction to entertain the plea traversal application, but the Court of Appeal found that he did have jurisdiction and remitted the matter to Justice Connelly for consideration. Justice Connelly disqualified himself and the matter was subsequently heard by Chief Justice Higgins, before the matter was again heard by the Court of Appeal, on appeal from Chief Justice Higgins’ decision.
The Court of Appeal held, at [38], that:
In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge. In Meissner v The Queen (1995) 184 CLR 132 at 157, Dawson J said:
… 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 …
It is clear from the above passage that, although the Court of Appeal sought to establish a test to be applied in all cases where a defendant seeks to withdraw a plea of guilty, the decision itself is focused on the circumstance of a defendant seeking to do so after conviction. The Court of Appeal was not called upon to consider the circumstance of a defendant who seeks to withdraw a guilty plea prior to conviction, nor to address any arguments as to whether different tests should apply, as between a defendant who seeks to withdraw a guilty plea prior to conviction, and a defendant who seeks to do so after a conviction is entered. In this respect, I note that:
(a)Gomez itself was a case in which a guilty plea was sought to be withdrawn after conviction, not prior to conviction, even though the decision of Chief Justice Higgins was not one made under s 37O(2)(a) for the purposes of the Supreme Court Act 1933 (ACT); and
(b)the case referred to by the Court of Appeal at [38], Messner v The Queen, involved an appeal against a guilty verdict, not an application to withdraw a guilty plea. Further, the remarks of Dawson J are directed at a circumstance where a conviction has been entered on the basis of a guilty plea, not an application to withdraw a guilty plea prior to conviction.
Other ACT Supreme Court decisions
There are few reported decisions in the ACT with respect to applications made by defendants to withdraw guilty pleas. Most have identified that Gomez sets out the test to be followed, albeit that none have explicitly considered whether the same test should apply to applications brought both prior to and after a conviction.
I note the following decisions concerned plea traversal applications made prior to conviction:
(a)in R v Mambor [2010] ACTSC 30, Higgins CJ stated that the law relevant to acceptance of a change of plea was considered in Gomez and, at [54], noted the ‘miscarriage of justice’ test established by that case;
(b)in R v Cringle [2011] ACTSC 27, Teague AJ stated, at [14], that the legal principles “are clear enough … The discretion should be exercised if there would be a miscarriage of justice in the event that the applicant was not permitted to withdraw the plea”. However, his Honour did note, at [14], that “there was not a great deal of reference to authorities” and, at [15], that, while Gomez was “clearly valuable in its statement of the fundamental legal principles”, “it provides only limited assistance in the instant case, because it is, and draws attention to, so many other cases where the application was made late”;
(c)in R v Boyle [2012] ACTSC 69, Burns J did not refer to Gomez. His Honour focused on whether there was a consciousness of guilt and, in that respect, had regard to a number of salient factors rather than an overarching test;
(d)in R v Sinclair [2012] ACTSC 64, Higgins CJ noted that the parties agreed that the legal principles underlying the grant or refusal of leave to change a plea had been set out in Gomez and Mambor, before stating, at [63], somewhat inconsistently, that: “The fundamental issue is whether it would be contrary to the interests of justice to allow the plea to stand”; and
(e)in R v Fairclough [2019] ACTSC 215, Burns J noted that Gomez sets out the principles to be applied in a plea traversal application, however his Honour’s decision focuses on whether there was a conscious of guilt, and the scope of that concept.
Which test applies in the ACT?
If it were open to me to choose between the test adopted by the Court of Appeal in Gomez and the approach taken by the NSW Court of Criminal Appeal in White, as the Prosecution invited me to do, I would follow White. I agree with the conclusion reached in that case that a distinction is to be drawn between cases where a defendant seeks to withdraw a guilty plea prior to a conviction being entered and a case where the defendant seeks to do so after a conviction is entered. While the reason for the NSW Court of Criminal Appeal drawing a distinction in White was in part based on the legislative requirement for a defendant, on appeal, to demonstrate a miscarriage of justice, the court’s reasoning separately identifies a basis for distinguishing between the two scenarios having regard to the finality which is attendant on a conviction.
However, having regard to the authorities referred to above, it seems to me that the test to be applied in the ACT in deciding a plea traversal application is the “miscarriage of justice” test, regardless of whether the application is brought before, or after, a conviction.
Consideration
The Prosecution’s submissions were premised on the application of the test set out in White applying to the determination of the Defendant’s plea traversal application. While I have found above that I am bound to follow the decision of Gomez, I have addressed the Prosecution’s submissions as they were made. I have taken this course as:
(a)that is how the hearing of the Defendant’s application proceeded; and
(b)the “interests of justice” test is a broader test than the “miscarriage of justice” test, and is therefore an easier test to satisfy, in the sense that a greater range of circumstances may fall within it than would satisfy the miscarriage of justice test.
Had the Defendant satisfied me that his circumstances met the interests of justice test I would have needed to consider whether the Defendant also satisfied the miscarriage of justice test, or whether further submissions were required to address this question. However, for the reasons that follow, I am not satisfied that the interests of justice test is met. Accordingly, I am not satisfied that the narrower miscarriage of justice test is met.
Prosecution’s submissions
The Prosecution’s submissions with respect to each group of offences are that:
(a)none of the charges, or the issues raised by them, are complicated;
(b)all the offences are summary in nature, even though the offences the subject of charges CC2021/8434 and CC2021/8437 might result in imprisonment;
(c)the Defendant has adopted a shifting position - his position has changed from the time he spoke to the authors of the Pre-Sentence Report, to the time when he prepared the “Conditional Acceptance” document, to the position he took at the plea traversal application;
(d)there is no real question as to the Defendant’s guilt for any of the offences;
(e)plea traversal applications should not be liberally granted;
(f)as to the First Group of offences:
(i)pursuant to s 58 of the Road Transport (General) Act 1999 (ACT), a police officer may require production of a driver licence and the police necessarily have the power to pull over a driver;
(ii)the Defendant was represented at the time he entered his pleas of guilty; and
(iii)there would be prejudice if the Defendant was permitted to withdraw his guilty plea, having regard both to the general interest of the Crown in finality and, more specifically, with respect to the need to call witnesses a long time after the events the subject of the offences; and
(g)as to the Second Group of offences:
(i)the Defendant was represented at the time he entered his pleas of guilty;
(ii)the pleas that were entered reflected a negotiated agreement;
(iii)the Defendant was aware of the relevant facts;
(iv)even if the Defendant didn’t agree with the facts set out in the Statement of Facts, he agreed to the negotiated outcome;
(v)there would be the same prejudice as there would be for the First Group of offences, if the Defendant was permitted to withdraw his guilty plea, however there would be additional prejudice arising from the fact that there were victims to these offences; and
(vi)there is no merit in the Defendant’s self-defence claim as he was resisting the lawful actions of police.
Whether it is in the interests of justice to permit the Defendant to withdraw his pleas of guilty
I note, firstly, that the Defendant’s circumstances do not reflect any of the cases that the NSW Court of Criminal Appeal identified in White as being ones where the interests of justice would warrant the withdrawal of a plea of guilty. In particular:
(a)it is not the Defendant’s position that he did not understand the nature of the charges to which he pleaded guilty and there is no evidence before the court that satisfies me that that was the case;
(b)it is not the Defendant’s position that his pleas did not involve a free and voluntary confession. Indeed:
(i)in relation to the First Group of offences, the Defendant says that he felt an element of guilt when he pleaded guilty; and
(ii)I note additionally that, in relation to the Second Group of offences, the Defendant says that he pleaded guilty because he did not like coming to Court and wanted to get it over and done with;
(c)there is no evidence of a mistake or other circumstance affecting the integrity of the pleas;
(d)similarly, there is no evidence that the pleas were induced by threats or other impropriety; and
(e)it is not a case where the pleas are not really attributable to a genuine consciousness of guilt, or that the pleas are not unequivocal. The Defendant was in possession of all relevant facts, he received legal advice, and he acted on that advice. In the case of the Second Group of offences, the Defendant’s pleas resulted in the withdrawal of other charges as part of a plea agreement. The Defendant consented to the plea agreement and consented to the Statement of Facts being tendered.
Second, in terms of the factors set out in White:
(a)as indicated above, the Defendant gave his pleas in circumstances where he was aware of the facts that the Prosecution relied on, the nature of the charges were straightforward (and there is no evidence that the Defendant did not understand them), the Defendant received legal advice (from ALS) that he should plead guilty, he acted on that advice and, in relation to the Second Group of offences, the Defendants’ pleas of guilty were part of a plea agreement which resulted in other charges being withdrawn. The Defendant was represented by ALS on 16 December 2021, when pleas of guilty were entered in relation to the First Group of offences, and on 28 January 2022, when pleas of guilty were entered in relation to the Second Group of offences. I note that he was also represented by ALS on most other occasions that the offences were mentioned in court until September 2022;
(b)in relation to both groups of offences, the evidence is clear that the Defendant made a deliberate and conscious decision to enter pleas of guilty, notwithstanding he didn’t entirely agree with the Statement of Facts in relation to the Second Group of offences;
(c)a considerable period passed between the entry of the pleas in December 2021 and January 2022, and when the Defendant applied to withdraw his pleas on 8 February 2023;
(d)as Mr Leggett submitted, there would be prejudice if the Defendant was permitted to withdraw his guilty plea, having regard both to the general interest of the Crown in finality and the need to call witnesses a long time after the events the subject of the offences, noting as well that there were victims to the Second Group of offences;
(e)the offences are summary offences and not the most serious kinds of offences, albeit that a term of imprisonment cannot be ruled out as a sentencing outcome;
(f)there is no evidence that the Defendant suffered any intellectual or cognitive impairment;
(g)the Defendant’s plea traversal application is not informed by any legal advice and the matters he relies on do not raise any real question about the Defendant’s guilt;
(h)in relation to the First Group of offences:
(i)the Defendant does not say that he had a licence, nor that the car he was driving was registered and/or insured at the relevant time. He wishes to challenge the authority of the police to pull him over;
(ii)Mr Leggett points to s 58 of the Road Transport (General) Act 1999 (ACT), pursuant to which a police officer may require production of a driver licence, a power which Mr Leggett submitted carries with it an implied power to pull a driver over;
(iii)regulation 304 of the Road Transport (Road Rules) Regulation 2017 (ACT) requires a person to obey “any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer”. Further, under s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) it is an offence to fail to comply with a police officer’s request or signal to a driver of a motor vehicle to stop their motor vehicle; and
(iv)it is evident that a police officer has the power to direct a driver, whom the police officer has observed driving over the speed limit, to stop their vehicle, as occurred in relation to the First Group of offences, regardless of whether the driver is ultimately charged with a speeding offence. The Defendant did not give any evidence that he was not speeding as alleged;
(i)in relation to the Second Group of offences, the focus of the Defendant’s application is that, having reflected on what happened, he contends that everything that happened after he was pulled over by the police was out of self-defence. In my view, there is no merit to the Defendant’s claim of self-defence. In particular:
(i)the Defendant did not identify how he considered that his conduct was carried out in self-defence, or provide any evidence as to his state of mind at the time of his conduct; and
(ii)the fact that the self-defence claim was not raised until February 2023 provides a strong indication that the Defendant did not hold the requisite belief that the conduct was necessary, for the purposes of s 42(2) of the Criminal Code 2002 (ACT) at the time the Second Group of offences were committed; and
(j)with respect to the other issues that the Defendant raised:
(i)his contention that he was not driving a motor vehicle was nonsensical;
(ii)the intention he identified in his email of 10 February 2023, to challenge the allegation that he drove the wrong way around a roundabout, was unsupported by any evidence that the Defendant gave at the hearing, as was his allegation that the police stole his car key; and
(iii)the Defendant’s assertion that the Canberra Times defamed him is not relevant to whether he committed the alleged offences.
In all the circumstances, I do not consider that it is in the interests of justice to permit the Defendant to withdraw his pleas of guilty (or any of them).
Whether it would be a miscarriage of justice to hold the Defendant to his pleas of guilty
Noting my conclusion that it is not in the interests of justice to permit the Defendant to withdraw his pleas of guilty, it follows that, adopting the more stringent test adopted in Gomez, I am not satisfied that there would be a miscarriage of justice if the Defendant is not permitted to withdraw his pleas of guilty.
Order
The Defendant’s application to withdraw his pleas of guilty for the First and Second Group of offences is refused.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Mason Britton Date: 19 June 2023 |
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