R v Campbell - [2012] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAMPBELL
[2012] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice David)
30 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Appeal by defendant against conviction and sentence - defendant pleaded guilty to the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA) - sentenced to a head sentence of four years and six months of imprisonment with a non-parole period of two years and three months - on appeal, defendant sought to withdraw his plea of guilty and to have the charged offence tried before a judge and jury - where defendant asserts that he was denied the opportunity of contesting the charge on the basis that he had acted in self-defence - whether the defendant should be granted leave to withdraw his plea - whether there was fresh evidence that demonstrated that the victim had lied in his victim impact statement causing the sentencing Judge to be misled.
Held: Appeals against conviction and sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15(1), s 23(3), referred to.
R v Pugh (2005) 158 A Crim R 302; R v Collis (1989) 43 A Crim R 371; R v Liberti (1991) 55 A Crim R 120; R v Moxham (2000) 112 A Crim R 142; R v Clayton (1984) 35 SASR 232; R v Roach (1990) 54 SASR 491; Hinton v O’Dea (1977) 16 SASR 234; Meissner v The Queen (1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Hura (2001) 121 A Crim R 472; R v Harkin (2011) 109 SASR 334; R v Perdikoyiannis [2011] SASCFC 82; R v Willetts [2009] NSWSC 1201; Barlow v The Queen (2008) 184 A Crim R 187; Lovell v The Queen [2006] NSWCCA 222; R v Elmir [2003] NSWCCA 192; Director of Public Prosecutions v Whiteside (2000) 114 A Crim R 234, considered.

R v CAMPBELL
[2012] SASCFC 44
Court of Criminal Appeal Gray, Anderson and David JJ
GRAY J.

On 28 June 2010, Lance Robert Campbell, the defendant and appellant, pleaded guilty to the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). On this appeal, he seeks to withdraw his plea of guilty and to have the charged offence tried before a judge and jury. The defendant asserts that he was denied the opportunity of contesting the charge on the basis that he had acted in self-defence.
On 8 December 2010, following his plea and the making of submissions, the defendant was sentenced in the District Court to a head sentence of four years and six months imprisonment. In arriving at the head sentence, the District Court Judge made a reduction of 18 months on account of the defendant’s plea of guilty, contrition and remorse. The Judge fixed a non-parole period of two years and three months. The sentence was ordered to have commenced on 22 October 2010 – the date on which the defendant was taken into custody. The defendant appeals against this sentence
It was the prosecution case that on 7 November 2009, the defendant was at home when he was made aware that someone had sent a friend of his 15 year old daughter an inappropriate text message. He obtained the number of the telephone from which the message had been sent and then left his home, believing the person was nearby.
The defendant and the victim met in the street. There was no evidence that the defendant and the victim were engaged in a heated discussion or that there was any threatening exchange of words. Any discussion between the defendant and the victim prior to the assault was minimal. Immediately prior to the assault the defendant called the number from his telephone. The victim’s telephone rang and the victim answered the telephone. The defendant then immediately punched the victim to the head, a result of which he fell to the road and hit his head, rendering him unconscious. No witness referred to the victim making any gesture or movement towards the defendant prior to being struck.
The victim, a 26 year old man with a partner and three young children, suffered as a result of the assault a severe traumatic brain injury and head and facial fractures. He was admitted to the Royal Adelaide Hospital where a CT head scan revealed significant abnormalities, including a left subdural haemorrhage causing internal pressure on brain structures, a frontal subarachnoid haemorrhage – being a thin layer of blood spreading widely over the brain’s surface – and bilateral frontal and left temple lobe contusions. These injuries were consistent with bruising of the cerebral cortex. He sustained fractures of the left mastoid and the left maxillary sinus as a result of which air bubbles penetrated into the skull. He also sustained a nasal bone fracture.
Later that night the defendant was arrested and interviewed by police. In the course of the interview the defendant made no reference to hitting the victim in self-defence or to the victim making any gesture or movement towards him prior to the defendant striking the victim. The defendant had several opportunities to raise this issue throughout the interview in answer to direct questions. During the course of the interview, the following interchanges occurred:
Q     Um, tell me what happened tonight.
AWell uh, the young lady came down and said uh, she’s being getting sent messages on her phone. And she’s a friend of my daughter’s. So um, I put the number in my phone, I walked down the road and she said I was the bloke that drove a, Ford GT or something like that. So I went down the road to chat to this bloke basically about um, sending the message to her. But um, I've rang the phone ‘cos I didn’t really know the bloke, so I rang the number on the phone, and the he answered the phone, sorta obviously it was him, so I hit him once and that’s it.
…
QOkay. So, what happened when you rang the number.
AHe answered the phone and I realised it was him. So, I whacked him once and that’s it.
QWhere was he when you rang the number.
A     Um, right in front of me on Lock Street, Lock Crescent.
…
Q     … did you hear his phone ring.
A     Yeah.
Q     And, okay. Did he say who he was.
A     Um, no. He just said hello and I realised it was him, so.
Q     Oh ok. Did you have any conversation with him.
A     No.
Q     Nope. So, so what did you do then. You said you hit him.
A.    Yep.
…
Q     …basically turned around and decked him…
A     Yep.
It was the prosecution case that the defendant’s interview evidenced the defendant exacting revenge or inflicting punishment upon the victim once he confirmed that the victim had the telephone that had been sending the inappropriate text messages.
The defendant’s record of interview was entirely consistent with the versions provided by the witnesses in relation to the circumstances surrounding the striking of the victim.
The only evidence before the Court to support the assertion that the defendant had acted in self-defence is contained in a hand-written declaration by the defendant of 7 November 2011. In this declaration the defendant stated, inter alia, that:
…I could see [the victim’s] car which was pointed out to me. As C and I were walking towards [the victim’s] car someone grabbed my shoulder. [The victim] said he had just come from my house and he knew who I was I said sorry mate, I don’t know you. I had never saw or met [the victim] before. I dialled the phone number from [J’s] phone messages. [The victim’s] phone started ringing which he answered. I said to [the victim] you’re the one who’s been harassing [J] all day and night. There were words exchanged between [the victim] and myself about harassing [J] and the text messages. [The victim] stepped forward ready to hit me. I reacted by defending myself and hit [the victim] once (closed fist) with my left hand. [The victim] fell and hit his head on the road. …
…
…I was protecting a child and defended myself.
On the hearing of the appeal, counsel for the defendant acknowledged that there was no deposition or any other witness statement that provided any evidence to support the defendant’s assertion that he had acted in self-defence. J, the girl who complained to the defendant about the unwelcome text messages and who gave the telephone number to the defendant, provided the following description of the incident:
I followed [the defendant] as far as his front door and then watched him walk up the street to my house. I saw [the victim] come up behind [the defendant] and walk until he was standing in the street with [the defendant] outside my house.
I saw [the defendant] using his mobile phone. I then saw [the victim] pick up his mobile phone. I then saw [the defendant] punch [the victim] to the face with his left fist. [The victim] then fell to the floor and [the defendant] then rolled him on his side and walked back towards me and told me to “get back inside”. I went inside [the defendant’s] house and sat in the lounge room.
C, the brother of J, described the incident as follows:
When [J] told [the defendant] about the messages he went outside. I followed him out and saw [the defendant] walk down the road from his house to our house. [The victim] was walking behind [the defendant] in the same direction. They both walked up the street and stopped outside of our house.
[The defendant] was talking to two (2) girls from up the street and then [the victim] walked up and stopped. [The defendant] then used his phone and [the victim] answered his shortly after. When [the victim] answered his phone, [the defendant] turned around and saw him. [The defendant] then [hit the victim] to the face with a left hook. He used a clenched fist and hit [the victim] to the right side of his mouth. [The victim] fell over straight away and was knocked out.
During the course of sentencing submissions, the Court accepted the defendant’s tender of a psychological report from Jack White. In that report, Dr White expressed the view that the defendant’s intellectual ability was in the low to average range with an IQ of between 80 and 90. His personality profile was described as emotionally unstable. A diagnosis was made of the following DSM-IV – alcohol abuse, cannabis dependence, amphetamine abuse, anxiety disorder, post-traumatic stress disorder, adjustment disorder with depressed mood, anti-social personality disorder and a borderline personality disorder. Dr White made four rehabilitation recommendations – mental health treatment, drug and alcohol treatment, anger management programme and assertiveness training programme. In respect of the offence of recklessly causing harm, Dr White took a history in the following terms from the defendant:
[The defendant] said that his motivation for the assault was that he perceived that the victim had been sending inappropriate sexual text messages to a friend of his daughters, who had become upset and distressed by the messages. It was indicated the female was 14 years of age and that the alleged sender (the victim) was aged 26 years. [The defendant] said he had been given the child’s phone, and when he went to investigate the situation, rang the number that had been sending the messages, and the victim [the victim] answered the call. [The defendant] realised in retrospect that his behaviour was inappropriate.
When making sentencing submissions, on 22 October 2010, counsel for the defendant outlined the incident as follows:
My client got the number that the texts were coming from and put it into his own phone. He then left the house with this young girl’s brother. He walked out onto the street and has seen the victim by his car, which was about one house away from J’s house. My client dialled the number, the victim’s phone rang, he answered it, and by this time my client instructs that he and the victim were standing next to each other. My client has punched the victim once with his left fist to his face, which has caused him to fall to the ground. My client rolled him on his side, saw that he was breathing and left the scene.
It is against the background of the above matters that the defendant seeks to withdraw his plea of guilty. The substance of his claim is that he entered his plea as a result of inadequate legal advice. He asserted that his solicitor advised that he had no alternative but to plead guilty. In his supporting declaration, the defendant asserts that he informed his solicitor on the occasion of his first court appearance that he wished to plead self-defence. This was the first occasion on which he had met the solicitor. At the time of the next court hearing, the defendant had a further conversation with the solicitor. In his declaration he states:
… [My lawyer] had advised me to plea guilty because I was looking at up to six years imprisonment and if I plea [sic] self defence there will be a trial where I could most definitely [sic] be sentenced longer that six years. I could not believe or understand pleading guilty at all but thought my lawyer knew what she was doing and had my best interests in this case. I went with my lawyers advice. …
The defendant then recounted a third meeting with his solicitor at her office, when he claims that he went through a full account of what had occurred, in particular claiming “[the victim] stepped forward ready to hit me. I reacted by defending myself and hit [the victim] once (closed fist) with my left hand.”
As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred. In the discussion of the law that follows I have drawn on my reasons in Pugh.[1]
[1] R v Pugh (2005) 158 A Crim R 302.
The onus is on the defendant to establish that to hold a person to a plea of guilty would result in a miscarriage of justice.[2] The courts adopt a cautious approach to allowing a change of plea. This approach recognises the public interest in the finality of proceedings and the fact that a plea based on legal advice is ordinarily regarded as an unequivocal and informed admission of the elements of the offence charged.[3]
[2] R v Collis (1989) 43 A Crim R 371.
[3] See R v Liberti (1991) 55 A Crim R 120, 122; R v Moxham (2000) 112 A Crim R 142, 144; R v Clayton (1984) 35 SASR 232, 234; R v Roach (1990) 54 SASR 491, 494.
The topic of withdrawals of pleas was discussed in Hinton v O’Dea where Jacobs J observed:[4]
[I]t is, I think, also clearly established that a Court will not lightly set aside a conviction founded on a plea of guilty. Speaking generally, it will only do so where it has been established to the satisfaction of the Court that the making of the plea has been induced by a material mistake … or by some improper threat or promise on the part of a police officer or other person in authority, and that but for the inducement the plea would not have been made.
In Clayton, Wells J commented:[5]
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. But that rule, I repeat, rests upon an informed and deliberate plea, and not on a plea based, possibly, on an amorphous and uncritical understanding.
[4] Hinton v O’Dea (1977) 16 SASR 234, 235.
[5] R v Clayton (1984) 35 SASR 233, 234.
A similar approach has been taken in other States, as observed by Kirby P, as he then was, in Liberti:[6]
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.
[6] Liberti v The Queen (1991) 55 A Crim R 120, 122.
Where a plea has been entered following legal advice, a withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement and there exists a substantial issue to be tried.
In Meissner,[7] the members of the High Court considered the circumstances in which a guilty plea could be withdrawn. The members of the Court concluded that a plea of guilty or not guilty must be made by an accused person as a matter of free choice. Where the court acts on the assumption that a plea of guilty has been freely made and that is not in fact the case, the court will be misled. Where the court has been denied knowledge of the true circumstances of the plea there is a risk of adverse interference with the proper administration of criminal justice. It was further held that where the means used to influence the plea of a defendant are improper and result in the removal of the element of free choice, such conduct has the tendency to pervert the course of justice.
Brennan, Toohey and McHugh JJ observed:[8]
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person's legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other hand, to pay the accused's legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused's freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution. When the offer of assistance is actuated by several purposes, one of which is to protect the interests of the accused, liability must depend on whether or not the latter purpose was the real purpose that actuated the offer.
Deane J considered that:[9]
The proper administration of criminal justice is, to no small extent, dependent upon the ability of courts to proceed on the basis that a plea of guilty or not guilty, with all that it entails, is made by an accused in the exercise of his or her own free choice. To endeavour, by intimidation, inducement or other means, to overbear the free choice of a person to plead not guilty and thereby bring about a tainted plea of guilty is clearly to attempt to pervert the course of justice in the sense of attempting adversely to interfere with the proper administration of justice. And that is so even in a case where the person whose free will is sought to be overborne is, or is thought to be, guilty [cf R v Kellett [1976] QB 372 at 388]. Obviously, in such a case, circumstances may arise in which the borderline between what constitutes legitimate persuasion of an accused person to plead guilty and what constitutes the offence of attempting to pervert the course of justice will be difficult to discern. When those circumstances arise, the relationship between the parties and an overall perception of real criminality are likely to be of particular significance. Thus, for example, a degree of pressure which would be quite legitimate if exerted by an accused's own lawyer acting solely in the accused's interests [eg in a “plea bargaining” or “sentence indication” situation] may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own.
Dawson J commented:[10]
The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. 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.
[7]    Meissner v The Queen (1995) 184 CLR 132.
[8]    Meissner v The Queen (1995) 184 CLR 132, 143-144.
[9]    Meissner v The Queen (1995) 184 CLR 132, 148-149. (footnotes included in text).
[10] Meissner v The Queen (1995) 184 CLR 132, 157.

An important although not critical consideration is whether the plea was attributable to a consciousness of guilt.
In Maxwell,[11] Dawson and McHugh JJ observed:[12]
The plea of guilty must … be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.
[11] Maxwell v The Queen (1996) 184 CLR 501.
[12] Maxwell v The Queen (1996) 184 CLR 501, 511.
If the person who enters the plea was not at the time in possession of all the relevant facts and did not entertain a genuine consciousness of guilt, the plea may be set aside and a new trial ordered.[13]
[13] R v Hura (2001) 121 A Crim R 472, 478.
In Wilkes,[14] the New South Wales Court of Criminal Appeal confirmed that attempts to withdraw a guilty plea on appeal should be approached with caution. However, it was noted that a refusal to allow the withdrawal of the plea may amount to a miscarriage of justice where: the defendant did not appreciate the nature of the plea; there was no evidence upon which the defendant could be convicted; the defendant did not intend to admit guilt; or the plea had been induced by fraud or other impropriety.
[14] R v Wilkes (2001) 122 A Crim R 310.
Having reviewed the authorities and acknowledged the importance of the principle of finality, Wood CJ, with whom Giles JA and Simpson J agreed, allowed the withdrawal of a plea, set aside the conviction and remitted the matter for re-trial.[15] Wood CJ observed that the appeal “hinged” upon the following considerations: [16]
-whether the advice given to the appellant was or was not imprudent and inappropriate;
-whether his plea was or was not attributable to a consciousness of guilt; and
-whether the material before this Court shows that there is or is not a real question about his guilt.
[15] R v Wilkes (2001) 122 A Crim R 310, [47] – [48].
[16] R v Wilkes (2001) 122 A Crim R 310, [20].
In the within proceeding, counsel for the Director of Public Prosecutions submitted that no proper basis had been established to allow the defendant to withdraw his plea of guilty. The Director submitted that the defendant’s declaration was deficient in a number of respects. Attention was drawn to an affidavit from the defendant’s original solicitor. Relevantly that affidavit set out the following:
I was instructed to act on behalf of [the defendant] on or around the 29^th of December 2009 in relation to a charge of recklessly causing serious harm.
From a note in my file, I can say that when I appeared in the Holden Hill Magistrates Court to receive declarations on the 15^th of April 2011, [the defendant] raised with me that he thought the victim was going to hit him. I advised [the defendant] that given he participated in a record of interview with the police, it would be important for me to read the record of interview and what he told the police when he was arrested. I advised him that his record of interview had been requested and once I was provided with it I would arrange an appointment to take further instructions. …
I appeared on behalf of [the defendant] in the Holden Hill Magistrates Court on the 13^th of May 2010 for the delivery of further declarations. From the note made on my file I can say that I received a copy of [the defendant’s] record of interview to the police.
On that same date I made a note in my file of a conversation I had with [the defendant] at the Holden Hill Magistrates Court. From the note that I made I say that [the defendant] raised with me a defence of self defence on the basis that the victim “went to go at him”. I advised [the defendant] that I would need to read what he said to the police in his record of interview, and what he told them would be important. I also raised with [the defendant] that the witness statements did not refer to the victim making any action to hit [the defendant]. …
In a letter to [the defendant] dated 14^th May 2010 … I provided him with a copy of his record of interview. I highlighted to [the defendant] in that letter what he told the police during his interview, namely that “I rang the number on the phone, and the he answered the telephone, sorta obviously it was him, so I hit him once and that’s it.” I noted that he did not tell the police at any time he was acting in self defence and that he would have difficulty with this defence.
On the 31^st May 2010, I took instructions from [the defendant] in relation to the offending. …
On the 28^th June 2010, I appeared on behalf of [the defendant] in the District Court for arraignment before His Honour Judge Chivell. Prior to [the defendant] appearing in court I had a discussion with him about pleading guilty to the charge given the circumstances in which the offending occurred and for [the defendant] to obtain the maximum discount. Although I did not make any notes of this conversation, I had instructions which [the defendant] signed confirming that he would plead guilty to the charge and that he was aware that he was facing a term of imprisonment which was unlikely to be suspended. …
Sentencing submissions proceed before His Honour Judge Chivell on the 22^nd of October 2010. During submissions I submitted that the reason for [the defendant] hitting the victim was because of the text messages which he saw had been sent from the victim’s phone to his daughter’s friend. …
His Honour revoked [the defendant’s] bail and remanded him in custody until his sentencing on the 8^th of December 2010.
On the 10^th of November 2010 I received a telephone call from [the defendant] and he told me that he wanted to apply for release on Home Detention Bail until his sentencing. I advised him that this was not possible as the Court has a discretion to revoke bail after submissions have been made and before sentence is imposed.
I received a letter from Old Port Chambers dated the 2^nd of August 2011 stating that a letter had been sent to me dated the 28^th day of January 2011 requesting a copy of [the defendant’s] file. I had not received the letter dated 28 January 2011 and the first time I was made aware of the possibility of an appeal was in the letter dated 2 August 2011. Once I received that letter I obtained [the defendant’s] file from storage and wrote to Old Port Chambers on the 17^th of August 2011 advising that [the defendant’s] file was available for collection.
The text of the letter of 14 May 2010 from the defendant’s original solicitor to the defendant included the following:
I note that in the interview you said to the police “I rang the number on the phone, and the he answered the phone, sorta obviously it was him, so I hit him once and that’s it.” You do not make any mention during the interview that you hit him in self defence. It would be difficult for you to now raise the defence of self defence when you have not mentioned it in your record of interview just after the alleged assault has occurred. Based on the content of your record of interview, you would need to enter a plea of guilty to the charge.
The Director pointed out that the defendant’s declaration failed to explain the circumstances surrounding the signing by him of the instructions to plead guilty. It was submitted that there was no basis to suggest that any undue pressure had been placed on the defendant to plead guilty. The Director emphasised that in the defendant’s declaration it was acknowledged that the solicitor had highlighted the relevance of a plea of guilty in the sentencing process.
To my mind, it is clear that the defendant made his decision to plead guilty having had advice that there was nothing in his police statement or the witness statements that supported a defence of self-defence. The Director emphasised that the defendant’s declaration provided no explanation as to why he had not, despite repeated opportunities, raised self-defence in his record of interview.
The Director drew attention to the report of the psychologist, Dr White, with particular reference to the passage extracted above. The Director pointed out that the defendant’s declaration provided no explanation for the failure to raise self-defence.
The Director pointed to the lack of detail to be found in the defendant’s declaration as to the victim’s movements immediately prior to the striking. Further, there was no statement by the defendant in his declaration as to the matters to be addressed by reference to section 15(1) of the Criminal Law Consolidation Act 1935 (SA). That subsection provides:
(1)     It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist¹.
Finally, the Director drew the Court’s attention to the defendant’s criminal antecedents. It was submitted that the defendant was not unfamiliar with the procedures and processes of the criminal court.
Counsel for the defendant on the appeal accepted that the defendant’s declaration was deficient in many respects. However it was submitted that notwithstanding these deficiencies, enough had been established for the Court to exercise its discretion and allow the plea of guilty to be withdrawn.
On the material before this Court, I do not consider that the defendant has established that any real question arises about his guilt. His statements in his police record of interview and to the psychologist Dr White give no hint of a defence. As conceded by his counsel, the eye witness statements provide no support at all to a defence. The account set out in the declaration does not accord in a number of respects with the eye witness statements. For these reasons alone, I would not grant leave to allow the defendant to withdraw his plea. There is no real question as to his guilt.
I would reject the criticisms made by the defendant in his declaration and through his counsel to this Court about the adequacy of the solicitor’s advice. To my mind it is clear that the solicitor gave advice having regard to the defendant’s police record of interview and the witness statements. She left the decision as to a plea to the defendant, advising him of the fact that a sentencing court is likely to be more lenient when fixing a sentence in the event of there being a plea of guilty. The defendant’s declaration confirms that he was left to make his decision having regard to all of these factors. No basis has been established to criticise the solicitor’s conduct in the matter. I do not consider that the defendant has established that his plea was not attributable to a consciousness of guilt.
On the appeal against sentence the defendant accepted that the Judge had regard to all relevant material placed before him, did not take into consideration any irrelevant material and applied correct sentencing principles.
The issue sought to be agitated on appeal was that there was fresh evidence which demonstrated that the victim had lied in his victim impact statement, suggesting that the effects of his injuries were more serious than was the case. It was claimed that as a result the sentencing Judge had been misled. Several matters were advanced. It was said that the victim had lied in asserting that he was unable to drive a motor vehicle. It was further alleged that the victim had lied in suggesting that he had lost his job because of his injuries. One further matter was raised concerning a claim in the victim impact statement that his vision had been affected. Again it was suggested that this was a deliberate lie on the part of the victim. When the Court pointed out to the defendant’s counsel that the medical evidence supported the victim’s claim of affected vision, this claim was withdrawn and an apology offered.
The medical evidence, as discussed above, established that the victim sustained a serious brain injury, including haemorrhaging, bruising to the cerebral cortex and frontal lobe damage. The victim underwent a lengthy course of rehabilitation and has been left with permanent deficits. In March 2010, Miranda Jelbart, a rehabilitation physician, reported that the victim was likely to have long-lasting cognitive neuro-behavioural and physical impairments as a result of his injuries. The doctor held significant doubts as to whether the victim would be able to regain capacity to re-enter the workforce on the open job market.
As a consequence of the slowing of the speed of thought processing and impaired reaction time, the victim was not considered to be medically fit to hold a driver’s licence and his licence was suspended. It was possible that he may, through an Occupational Therapist Driver Assessment, gain a medical clearance to drive. It appears that he had not obtained a driver’s licence at the time of sentencing submissions.
The Court drew these matters to the attention of counsel for the defendant during the course of the appeal and suggested that they were relevant and important matters necessary to be considered when making a submission that the victim had been dishonest. Counsel for the defendant, although appearing to acknowledge this matter, maintained his submission that the victim was a deliberate liar about consequences of his injuries.
To my mind, the submission that the victim was a deliberate liar was without substance. Counsel for the defendant referred to statements made by lay witnesses about observations made of the victim both in Court and out of Court at the time of sentencing. It is asserted that the victim behaved in Court in a manner displaying difficulty in speech and movement which were not evidenced outside Court. Impairment of speech and movement were, on the medical evidence, a consequence of the brain injury. Bearing in mind the atmosphere of a courtroom, it is unsurprising that a person suffering from brain damage may appear to perform poorly. None of the suggested witnesses appear to have had regard to such considerations.
If it be the fact that the victim was driving at about this time, it would appear that he would have been doing so in breach of the law. This may have been as a consequence of irresponsibility arising from his injuries. There was no request by counsel for the defendant to have the victim presented as a witness so that these allegations could be put to him.
Counsel is obliged to take great care before making inappropriate submissions to a court.[17] In the course of making submissions, counsel claimed not to have been aware of medical reports that appeared on the court file available to the sentencing Judge. Counsel did not appear to have carefully considered relevant medical evidence that might explain what was claimed to be embellishments by the victim in the victim impact statement. The circumstances did not allow a full investigation of these concerns and in this circumstance, it is inappropriate to make any further comment.
[17] See Rule 21 of the Australian Solicitors’ Conduct Rules, amended by the Council of the Law Society of South Australia on 12 September 2011 via the inclusion of “SA Specific” Rules, 16A, 16B and 16C.
This is an assault in the nature of a vigilante attack. Courts, including this Court, have treated such conduct as a matter of aggravation.[18] It is relevant to recall that witness depositions established that the victim of the attack had not been responsible for the offensive text messages. It appears that a number of text messages were sent from the victim’s telephone by the victim’s brother who was a school friend of J. He had borrowed the victim’s telephone as his own telephone was inoperative. The victim had sent one text message at the specific request of his brother, which the victim described as containing “nothing bad” and one which the victim assumed J would understand had come from his brother. Had the police been contacted and the proper investigation undertaken, these facts would have been uncovered. Instead as a result of the defendant’s attack, the victim has suffered extensive brain damage leaving permanent disabilities.
[18] R v Harkin (2011) 109 SASR 334, [42] (Gray and Sulan JJ), [92]–[96] (White J); R v Perdikoyiannis [2011] SASCFC 82, [44]; R v Willetts [2009] NSWSC 1201, [13]; Barlow v The Queen (2008) 184 A Crim R 187, [40]; Lovell v The Queen [2006] NSWCCA 222, [70]; R v Elmir [2003] NSWCCA 192, [20]; Director of Public Prosecutions v Whiteside (2000) 114 A Crim R 234.
The defendant’s antecedents, including offences of violence, precluded the otherwise leniency that might be received by a first offender. The defendant’s drug addiction and drug use around the time of the offence may go some way to explaining his behaviour, but they do not provide any excuse. I consider that the sentence imposed was merciful.
Conclusion
I would dismiss both the appeal against conviction and the appeal against sentence.
ANDERSON J. I would dismiss the appeals against both conviction and sentence for the reasons given by Gray J.
DAVID J. I would dismiss the appeals against conviction and sentence. I agree with the reasons of Gray J.