R v Begg No. DCCRM-97-525 Judgment No. D3798

[1998] SADC 3989

R v BEGG

CRIMINAL
JUDGE RUSSELL

The defendant and his girlfriend, Sharon Marie Murphy, were jointly charged on the information of the Director of Public Prosecutions filed in the Criminal Registry of this Court on 7 January 1998 on two counts of knowingly having amphetamine, a drug of dependence, in their possession for the purpose of selling it to another person.

On the first count the offence was alleged to have been committed at Torrens Park, where they were living, on 21 April 1997.  On the second count the offence was alleged to have been committed at Cumberland Park, where they were living, on 28 September 1997.

It is relevant to notice that both defendants were originally charged with having committed the offence charged in the first count on an information filed on 11 July 1997 and both defendants pleaded not guilty before His Honour Judge Lee on 29 July 1997.

At a status conference held on 11 September 1997 I directed that the matter be set down for trial on 10 November 1997.

Upon a further charge being laid on an information in the Magistrates Court in respect of the subject matter of the second count on the information now before the Court, the trial date on the first information was vacated on 20 October 1997.

It appears from the depositions that as a result of information received, police attended at the residential address of the two accused at Torrens Park on 21 April 1997.  Both defendants and two other persons, John Strachan and Celia Stewart, were present in the house.

A small amount of white powder, believed to be amphetamine, was located in a plastic bag on the kitchen bench in the house.

Ms Murphy identified that as being her property.

Later during the search, a black and white chequered vinyl toilet bag was located on a chair in the lounge.  That bag was identified as belonging to the defendant Begg.  Begg told Detective Holmes that he had a small bag of amphetamine in the toilet bag.

As appears from the transcript of the conversation which was being recorded on an audio tape Detective Holmes said -

‘Alright, I have just removed a large plastic bag, glad bag er, which contains er, I guess three, four separate packages of what appears to be white powder.  Also located in another bag ah, inside the bag, ah inside the black and white chequered bag it’s er contains a quantity of white powder.  There’s another smaller bag er, which is sorter of rolled up, also located in this er, in this vinyl bag.  OK Daniel, Daniel, want you to come here mate, look, at this stage, alright, I am arresting you for possession of Amphetamine for sale OK.’

Upon analysis Mr Pigou, an analyst appointed under the provisions of the Controlled Substances Act 1984, the white powder which weighed 132.69 grams was found by Mr Pigou to contain 11.53 grams of pure amphetamine.

Bearing in mind the deeming provisions of ss(3) of s32 of the Controlled Substances Act and assuming all other elements of the offence charged on the first count are proved, the quantity of amphetamine is such that the onus of proving that the amphetamine was not in his possession for the purpose of selling it to another person would lie on the defendant Begg.

Indeed, in my opinion, the crown’s case against the defendant Begg on the first count is a very strong one, subject, of course, to the defendant’s ability to prove that he did not have the amphetamine in his possession, or part of it, for the purpose of selling it to another person.

In my opinion, the strength of the crown’s case on the depositions is made even stronger by the submissions made by Mr Fardone on 16 March 1998 after his client had pleaded guilty.

So far as is relevant, the transcript records his submissions as follow -

‘MR FARDONE:     I am seeking a remand for approximately four weeks to obtain a psychiatric report from Dr Richard Gorton, in relation to the defendant’s addiction to drugs, namely amphetamine, although in although in the past he has used cannabis, in fact, some cannabis was found in his possession on the occasion that the police attended and found the amphetamine in the house.  He has been addicted for three years.

......... He is 40 years of age and when I do eventually give submissions, those submissions will be on the basis that this defendant is an addict, a regular user of amphetamine and an occasional user of cannabis, and that he has only sold the drugs occasionally to close friends and supplied to close friends and also his partner, Sharon Murphy, who has been living with the defendant for several years, and that there was no desire for financial gain in having the amphetamine in his possession.  It was, basically, as I said, to sell occasionally to friends, to be in a position to purchase amphetamine for himself and to supply his girlfriend.

HIS HONOUR:         In other words, he supplies for financial gain.

MR FARDONE:       From that point of view.

HIS HONOUR:         It is not accurate to say there is no desire for financial gain.

MR FARDONE:       Thank you for the correction.  Not financial gain in the sense of being able to make large profits and purchase items and assets for oneself, that is the distinction I meant to make.  Certainly there was financial gain to purchase more amphetamines for one’s own use.  I beg the court’s indulgence for a remand for that period of time and I ask for bail to continue until the next date, for full submissions and the report to be submitted to your Honour.’

Thereupon, I revoked the defendant’s bail and remanded him in custody to Tuesday 14 April 1998 to hear submissions in mitigation of penalty.

In the meantime an application was made on behalf of the defendant for leave to withdraw the plea of guilty on the following grounds.

‘(a)The Applicant had at all times until the day of trial maintained his plea of not guilty to the charge;

(b)On the morning of trial the Applicant was subject to pressure from his counsel which resulted in his decision to change his plea.  This was also influenced both by the timing of these discussions and by personal considerations relating to the Applicant’s de facto/girlfriend who was then jointly charged with him but against whom the Department (sic) of Public Prosecutions as a result of his change of plea entered a nolle prosequi.

(c)The Applicant genuinely believes he is not guilty of the offence, and maintains that he has a good defence.’

The application was accompanied by an affidavit sworn by Robert Bruce Harrap, the defendant’s present solicitor, sworn on 1 April 1998, the material part of which reads as follows -

‘2..... This office received instructions in the matter confirmed when I was able to see the Applicant at the Adelaide Remand Centre on the 31st day of March 1998.

3...... The Applicant has confirmed instructions to me that he wishes to withdraw the plea of guilty entered in this Court on the 16th day of March 1998 on one count of Possession of Amphetamine for Sale.

4.Based on my instructions and perusal of the file from the Solicitors who had previously been acting for the Applicant it would appear as follows:-

(a)... That the Applicant had from the outset maintained a plea of not guilty to two counts of Possession of Amphetamine for Sale laid against him in the Central District Criminal Court (sic).

(b)... In conference with his solicitor on the weekend before trial listed in the matter the Applicant had maintained that position.

(c)... On the morning of trial the Applicant was unduly influenced by his counsel to change his plea to guilty on count one of the Information as laid.  The Department (sic) of Public Prosecutions entered a nolle prosequi on count two on the Information.  Further and more importantly to the Applicant, the Department (sic) of Public Prosecutions entered a nolle prosequi against his girlfriend Sharon Murphy who was a co-accused in relation to both counts on the original Information.

5.On the instructions provided by the Applicant, he has a defence to the two counts on the original Information.’

Upon the hearing of the application the defendant’s present counsel, Mr Stokes, not only put submissions in support of the application but also called the defendant to give evidence on oath.

The defendant’s explanation for his apparent admission in the course of the search of the bags of amphetamine in the toilet bag were his is that only a small part of that amphetamine was his and that he did not know that the remainder of amphetamine was in the bag, nor can he explain how it came to be in his toilet bag.

His explanation as to why, at the very last minute, he pleaded guilty to both counts on the information is that he was confused and felt under pressure from Mr Fardone to enter a plea of guilty.

Prior to the trial the accused had maintained at all times that he would plead not guilty to both charges and said that at no time prior to attending on the trial date had there been any discussion with Mr Fardone about whether he might plead guilty to one or other or both of the charges.  He said he had never given any consideration to that.

In fact, the defendant said that on the Friday previous to the trial he had spend two hours with Mr Fardone in his office in Gouger Street and at that time there was no discussion about pleading guilty to the charges.

On the day of the trial he said that he met Mr Fardone in his office in Gouger Street and walked down the street with him so that they would arrive together.  He had to wait for a little while whilst Mr Fardone went to the bank.  When the matter was called on before me he heard Mr Fardone ask for an adjournment to obtain some further instructions.

As the transcript of those proceedings shows that application was made at about 10.03 am.  The adjournment was granted.  Eventually at 10.48 am after an amendment was made to the first count the defendant was arraigned and entered a plea of guilty to count one and, upon being arraigned on count two he said ‘not guilty, but guilty of simple possession of amphetamine’.

Upon reflection, my memory of the way in which he entered the plea makes me wonder whether he wholly understood what he was doing.  Indeed, I recall him being prompted by Mr Fardone when entering his plea on the second count.

Counsel for the Director of Public Prosecutions accepted that plea in satisfaction of count two and entered a nolle prosequi in respect of both counts against Ms Murphy.

I should interpolate here that in relation to the second count, as a result of information received, the police attended at 57 Narinna Avenue, Cumberland Park.  The premises were searched and, as a result of that search, they located 3.8 grams of powder which, upon analysis, was found to contain 0.3 grams of amphetamine.

That of course is the subject matter of the second count.

At the end of his submissions in support of the application on 6 April 1998, Mr Stokes asked for an adjournment to enable him to obtain an affidavit from Mr Fardone.

So far as is relevant, the affidavit sworn by Mr Fardone on 9 April 1998 reads as follows -

‘1..... I was the solicitor the applicant DANIEL THOMS BEGG when his matter came on for trial in the Central District Criminal Court (sic) on 14th April 1998.’

I should interpolate here that Mr Fardone must have been mistaken as to the date.  Not only was that date subsequent to the date of his swearing the affidavit, but also his appearance before this Court was on 16 March 1998.

The affidavit continues as follows -

‘2..... The Applicant DANIEL THOMAS BEGG had always maintained pleas of not guilty to the two charges on the original Department (sic) of Public Prosecutions Information.  In my view he had a good and reasonable defence.

3...... There was no discussion with DANIEL THOMAS BEGG about changing his plea to guilty to one or other or both of the charges as laid until about 10 minutes before we were to appear before Judge Russell for trial.

4...... I had seen DANIEL THOMAS BEGG on the Friday before the trial was listed.  I had spent some time with him and endeavoured to discuss with him the coming trial.  Again, there was no discussion about him changing his plea.

5...... Unfortunately on that Friday I must have been coming down with the flu.  It hit hard on that weekend.  By the time the trial was to be heard I was physically and mentally drained and I suspect not thinking as clearly as I should have been or could have been.  I would not have been able to cope with a four day trial.  It was too late to brief other counsel.  I think that the effects of my illness played a part in the pressure that I put on DANIEL THOMAS BEGG to negotiate a change of plea with the Department (sic) of Public Prosecutions counsel on the day of the trial.

6...... The negotiations that took place that morning were undertaken piecemeal and over a comparatively short period of time.  Initially the Department (sic) of Public Prosecutions offered to withdraw charges against the co-accused SHARON MURPHY with respect to Count 1 only and she was to plead to simple possession on Count 2.  That proposal was rejected.  There was then a proposal that DANIEL THOMAS BEGG plead guilty to Count 1 on the Information and both plead guilty to the Possession of Amphetamine for Own Use on Count 2.  That was rejected.  The third offer was that DANIEL THOMAS BEGG plead guilty to Count 1 Possession for Sale and Count 2 Simple Possession and the Department (sic) of Public Prosecutions would enter a nolle prosequi against SHARON MURPHY on both charges.  In hindsight it is possible that DANIEL THOMAS BEGG did not understand all that was going on.  Certainly he was under pressure because he did not want SHARON MURPHY involved in the charges and he was clearly concerned about her well-being.  Effectively, I put him under pressure by emphasising that SHARON MURPHY’S charges would be withdrawn and that she would be free to leave.  But further to that I indicated to him that the Department (sic) of Public Prosecutions would not object to or oppose a suspended sentence for him (which was my understanding of the situation) and they would not object to bail continuing whilst any reports were obtained.  All of those messages I conveyed to him in the course of discussion that morning.  DANIEL THOMAS BEGG kept saying that this should have been discussed with him on the Friday appointment before the trial or even earlier than that.  I remember him saying that it was “too sudden”.  I can remember him saying that he could not think clearly at the time and needed time to think through and discuss the proposal.  In other words some time longer than 10 to 30 minutes.  He kept saying that he thought the trial would go ahead.  He did subsequently sign instructions which I hand wrote and got him to sign which I think he did without reading it through and certainly without having further opportunity to think through what he was signing.’

I must say, at once, that I find it difficult to see how Mr Fardone could express the view, as he does in paragraph 2, that the defendant had a ‘good and reasonable defence’ in the light of what he had to say on 16 March 1998 about the basis upon which his client had pleaded guilty.  As appears above, Mr Fardone’s instructions appeared to be that at least some of the amphetamine possessed by his client was in his possession for the purpose of selling it to another person.  Be that as it may, as appears from the evidence of the defendant upon his application to change his plea to that of not guilty, he felt under pressure when being confronted, at the very last minute, with advice from Mr Fardone that he should change his plea, notwithstanding his constant instructions earlier that he would plead not guilty.

Moreover, on the evidence of the defendant it seems that his defence was that he did not know that the bulk of the amphetamine found in the toilet bag was, in fact, in there.  Furthermore, it seems that there were other people who were in the house and the suggestion is that they were users of amphetamine as well.

I must say that during the course of hearing the evidence of the defendant I entertained some disquiet over his ability to understand questions that were put to him.

I also notice in the transcript of the conversation between the defendant and Detective Holmes at Torrens Park on 21 April 1997, the defendant was going through signs of being under stress.  Early on in the piece Detective Holmes said ‘now if you just sit down, alright, you have gone through a little bit of stress here mate, just sit down and relax’.  Detective Holmes again said ‘OK sit down and relax mate, if anybody, if everybody else relaxes everything will run smoothly OK’.  And later Detective Holmes said ‘yeah, alright, Daniel, Daniel, alright, OK, alright, it’s a bit of a stress for you mate, but just catch your breath OK’.

It is, in my view, not without significance, in discussing whether or not the defendant made an informed decision to plead guilty that Mr Fardone, in his affidavit sworn on the 9th day of April 1998, as appears in paragraph 6 of that affidavit says that the defendant kept saying that this (ie the question as to whether or not he should plead guilty) should have been discussed with him on the Friday appointment before the trial or even earlier than that.  Mr Fardone remembered him saying that it was ‘too sudden’.  He remembered him saying that he could not think clearly at the time and needed time to think through and discuss the proposal.  He kept saying that he thought the trial would go ahead.

And then, Mr Fardone says, that the defendant subsequently signed instructions which he, Mr Fardone, had handwritten and ‘got him to sign which I think he did without reading it through and certainly without having further opportunity to think through what he was signing.’

In Meissner v R (1994-1995) 184 CLR 132 at page 157 Dawson J said -

‘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 R v Forde [1923] 2KB 400 at 403; R v Murphy [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Liberti (1991) 55 A Crim R 120 at 121-122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232-233. 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 Pilkington v The Queen [1955] Tas SR 144; R v Murphy (supra); R v Barnes (1970) 55 Cr App R 100 at 106; R v Inns (1974) 60 Cr App R 231 at 233; R v Chiron (supra).’

In the light of Mr Fardone’s belief that his client had a good defence to the charge together with what appears to be the defence that the defendant has as appears from his evidence before me, namely, that he did not know that the bulk of the amphetamine in his toilet bag was there, it seems to me that the inducement, such as it was, namely that the charges against Ms Murphy would be withdrawn and that he would receive a suspended sentence is capable of being an improper inducement.

Having said that, I have not overlooked the judgment of Brennan J (as he then was) and Toohey and McHugh JJ in Meissner’s case (supra) in which they said at page 143 -

‘It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused’s free choice to plead guilty or not guilty.  Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put.  Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge.  As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.’

In my opinion the last minute bargaining by Mr Fardone with counsel for the Director of Public Prosecutions which led to the proposition being put to the defendant at a time when he knew the Court was waiting and which was quite foreign to his instructions to Mr Fardone and in circumstances in which the defendant understood from the earlier advice given to him by Mr Fardone that he had a good defence, and bearing in mind the defendant’s understandable confusion, and Mr Fardone’s admission that he was physically and mentally drained and that he suspects that he was not thinking clearly and that the effect of his illness played a part in the pressure that he admits he put on the defendant to change his plea, all savour of harassment or other improper pressure.

Furthermore, I refer to the judgment given by Bollen J in Attorney General v Kitchen and Roberts (1989) 51 SASR 54 at pages 63 and 64. At page 63 His Honour referred to two dicta of Wells J in R v Clayton (1984) 35 SASR 232 which read as follows -

‘There is every reason why an informed and deliberate plea should be treated as final, and that, after entry of such a plea, the prisoner should face the necessity of persuading a trial judge that, in effect, a miscarriage of justice would result if he were bound by his plea.’

And Bollen J’s observation -

‘I note the clear idea emerging from these remarks that the trial judge should strive to avoid a possible miscarriage of justice.’

And, further down the page quoting once again from the judgment of Wells J in Clayton’s case -

‘But the matter, does not, I apprehend, rest there.  When the case was called on again, and counsel appeared for the prisoner, and informed the learned trial judge that, on his instructions, the accused appeared to have a defence to the charge, the learned trial Judge should, in my judgment, have allowed a withdrawal of plea, unless other, and grave and weighty, circumstances existed that warranted his refusing the defence application.’

Further down page 64 His Honour, Bollen J said -

‘As I have already suggested the principles in R v Clayton suggest that Judge Kitchen was right to allow the change.  As a matter of impression, one thinks that a change was properly allowed.  There are other statements of judges which support the change of plea allowed here.  In R v McNally [1954] 2 All ER 372; [1954] 1 WLR 933 at 934, Lord Goddard said:

“If the Court came to the conclusion that there was a question of mistake or misunderstanding or that it would be desirable on any ground that the prisoner should be allowed to join issue, no doubt the Court would allow him to do it.”

Of course, “any ground” must mean “any reasonable ground”.  But still what Lord Goddard said is far removed from “very sparingly”.  In R v Turrall [1968] NZLR 312 at 313, Hardie Boys J said’

“This Court should be the fountain of justice and ensure that no man is wrongfully convicted even if it is his own foolish act that has brought the situation about.”

The remarks of Goddard L J and Hardie Boys J were adopted by O’Loughlin J in R v Symons (1988) 143 LSJS 463 at 464. Having referred to those remarks O’Loughlin J said:

“I believe that a judge of this Court has a responsibility that no person forms a mistaken view that, having pleaded guilty to a charge (no matter how serious the charge), he has some measure of leave or licence to change his mind and withdraw his plea.  I refer back to what Lord Justice Goddard said -

‘If there is the slightest doubt that there has been a mistake or misunderstanding, then that doubt should be resolved in favour of the defendant and he should be permitted to withdraw his plea.’

To that I add that if there is the lightest doubt about the propriety of the plea as a matter of law that should be resolved in favour of the defendant.”’

In all the circumstances, I have reached the conclusion that to refuse the application might well lead to a miscarriage of justice being done to the defendant.

The fact of the matter is that at the time Mr Fardone gave his advice to the defendant he was suffering from flu and, as he said he was physically and mentally drained and not thinking as clearly as he should have been or could have been.  He realised at that point in time that he would not have been able to cope with a four day trial and said that it was too late to brief other counsel.

I must say that had I been informed by him that he was too ill to conduct the trial I would have adjourned to enable him to find other counsel to conduct it.

The fact of the matter is that Mr Fardone, on his own evidence, put his own illness and his realisation that he would not be able to cope with a trial above the interests of his own client.

Indeed, in my opinion, the defendant, who at all times before the commencement of the trial believed that he had a good defence and had received no advice to the contrary might well have been confused by the last minute advice given by Mr Fardone and was given little or no time in which to give adequate or proper consideration to the question as to whether he should accept the advice.  Whilst I appreciate the fact that the basis upon which Mr Fardone proposed to make his submissions in mitigation of penalty (as appears at page 3 of these reasons) show, if they be an accurate statement of the facts, that the defendant was guilty as charged, bearing in mind Mr Fardone’s state of health at the trial and the pressure under which the defendant was placed and his confused state of mind, I think it would be dangerous to place too much reliance on Mr Fardone’s submissions.  There is no evidence to show that those submissions are accurate.  Indeed the evidence is to the contrary.

In those circumstances, the order of the Court is that the application be allowed and that the defendant be given leave to withdraw his plea of guilty to both counts 1 and 2 on the information.