R v Carey
[2013] SADC 173
•19 December 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAREY
[2013] SADC 173
Reasons for Ruling of His Honour Judge Lovell
19 December 2013
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Application to withdraw plea of guilty.
R v Clayton (1984) 35 SASR 232; R v Liberti (1991) 55 A Crim R 120; R v Sagiv (1986) 22 A Crim R; R v Pugh [2005] SASC 427; Meissner v The Queen (1995) 184 CLR 132; R v Pugh [2005] SASC 427, considered.
R v CAREY
[2013] SADC 173Overview
Mr Carey pleaded guilty before me to one count of Aggravated Possessing Child Pornography.
He has applied to set the plea aside alleging that to allow it to stand would lead to a miscarriage of justice.
Background
On 23 July 2011, Detective Brevet Sergeant Simpson attended Mr Carey’s premises. During the course of discussions Mr Carey mentioned that he may have accidentally downloaded some illicit images. Detective Brevet Sergeant Simpson seized a computer, a Samsung tablet and some documentation.
On 29 July 2011, Detective Brevet Sergeant re-attended Mr Carey’s residence and arrested him for the offence of Aggravated Possessing Child Pornography.
The matter proceeded by way of committal proceedings in the Magistrates Court. The learned Magistrate committed the matter to the District Court for trial.
On 4 March 2013, before me, Mr Carey entered a plea of guilty to the charges. The allocutus was delivered.
On 7 May 2013, Mr Bleechmore, now counsel for Mr Carey, indicated that an application was to be made for him to change his plea. The application to change the plea was made on 3 June 2013.
Change of plea application
Ms Lewis, at the time of the plea, was Mr Carey’s solicitor. Mr Heffernan was his counsel. Mr Bleechmore is his counsel on this application.
I received as evidence on the application the following affidavits:
1Phillip Carey sworn 29 May 2013;
2Ralph Bleechmore sworn 29 May 2013;
3Ms Lewis sworn 20 August 2013; and
4Mr Heffernan sworn 19 August 2013.
No-one was required for cross-examination.
Legal principles
Mr Carey is charged with Aggravated Possessing Child Pornography under s 63A(1)(a) of the Criminal Law Consolidation Act 1935. The circumstance of aggravation alleged is that Mr Carey knew the victim was, at the time of the offence, under the age of 14 years.
Section 63A relevantly states:
(1) A person who—
(a)is in possession of child pornography knowing of its pornographic nature; or
(b)intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
….
(2) It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
Child pornography is defined in s 62 of the Criminal Law Consolidation Act. Relevantly it states:-
(a) that—
(i)describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii) consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
(b) that is intended or apparently intended—
(i) to excite or gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty.
The elements of the offence are:
1 The material (the subject of the charge) must fall within the definition of child pornography;
2 The accused must be in possession of it; and
3 The accused must know of its pornographic nature (by definition the aspects of the material by reason of which it is pornographic).
By his plea, Mr Carey has acknowledged all three elements. The application to set aside the plea is based around the first element.
For the purpose of this application, the only argument before me was whether the images located on Mr Carey’s computer could themselves fall within the statutory definition of ‘child pornography’. Clearly, much consideration was given by Mr Carey and his legal advisers to the question of possession before trial, but that question did not form part of this application.
It was accepted that the images fall within the terms of ss (a)(ii). It was also common ground that the argument revolved around whether the images fell within ss (b)(i).
Where there has been a plea of guilty on arraignment before a judge, it is clear that an application may be made to withdraw the plea at any time before sentence.[1] A plea of guilty is an admission by the accused of all of the elements of the offence.
[1] R v Clayton (1984) 35 SASR 232.
The applicant bears the onus of demonstrating that a miscarriage of justice has occurred, and an application to withdraw a plea must be viewed with caution. There is high public interest in the finality of legal proceedings and the law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as a cogent admission of guilt.[2]
[2] R v Liberti (1991) 55 A Crim R 120; R v Sagiv (1986) 22 A Crim R at 80.
A miscarriage of justice can take many forms.[3]
[3] R v Pugh [2005] SASC 427.
A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
A person may plead guilty, and be held to that plea, although the plea is made upon grounds that extend beyond that person’s belief in his guilt.[4]
[4] Meissner v The Queen (1995) 184 CLR 132.
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.[5]
[5] R v Pugh [2005] SASC 427 [198].
The advice given by legal counsel to an accused person is a relevant but not determinative factor on an application of this type.
As the Chief Justice in R v Pugh said:
In the course of criminal proceedings counsel will routinely advise an accused person on many matters, such as the prospects of successfully defending a charge, the conduct of the trial if there is one, the likely sentence should the accused be convicted and other matters.
From time to time mistakes will be made in advising an accused person. Sometimes, on later reflection, it might appear that better advice could have been given. None of these things, of themselves, are indicative of a miscarriage of justice should an accused person be convicted or plead guilty on the basis of advice: see TKWJ v The Queen [2002] HCA 124; (2002) 212 CLR 124 at [16] Gleeson CJ, at [30]-[33] Gaudron J, at [91]-[93] McHugh J, at [110]-[111] Hayne J. They are aspects of our criminal procedures which are inherent in a process in which the accused person is advised by counsel. That is not to deny that on occasions erroneous advice can result in a conviction that amounts to a miscarriage of justice. But to conclude that there is a miscarriage of justice requires more than that mistaken advice has been given which plays a part in the securing of a conviction or in the decision to plead guilty.
Declaration evidence
At the committal, the prosecution tendered the declaration of Detective Brevet Sergeant Simpson stationed at the Sexual Crime Investigation Branch.[6] He was the Detective who conducted the actual search of Mr Carey’s premises on 23 July 2011. The police had attended his premises in relation to his ANCOR obligations. As a result of discussions with police Detective Brevet Sergeant Simpson seized the two computers.
[6] Declaration dated 9 September 2011.
On 29 July 2012, Detective Brevet Sergeant Simpson re-attended the premises and spoke to Mr Carey. After cautioning him the following exchange took place:
Q... the reason I’m here is obviously from our visit on Saturday night, being the 23rd July. You may remember, Britta Rivett and I came to your address and spoke to you in regards to your ANCOR obligations. We had a general chat. At that time you made us aware that you may have accidentally downloaded some illicit images or images you were concerned about, (my underlining) and you showed us a series of photos. I think they were termed Philipe Boy and similar. After that I used my general search warrant and seized your computer, plus your Samsung tablet and some documentation. Do you agree with what I’m saying so far.
AYeah.
As can be seen from this interchange, Mr Carey mentioned to Detective Brevet Sergeant Simpson that he ‘may have accidentally downloaded some illicit images’[7] or images he was ‘concerned about’.
[7] Record of Interview 29 July 2011.
A further declaration of Detective Brevet Sergeant Simpson was also tendered.[8] On Thursday 8 December 2011, he reviewed a number of images that had been retrieved from the seized computers. From a thousand images he selected 686 images which he considered to be inherently pornographic and depicted a child or children under or apparently under the ages of 14 years.
[8] Declaration dated 13 December.
He categorised the images utilizing a five level scale established by the United Kingdom Sentencing Advisory Panel and adopted in the English Case of R v Oliver. All 686 images were categorised as level one of the scale which are ‘images depicting erotic posing with no sexual activity’.
The learned Magistrate who committed Mr Carey for trial in this Court had that information. Whether the learned Magistrate viewed the images is unknown.
The scale adopted by Detective Brevet Sergeant is of course very helpful but not determinative of the question of whether the images fall within the definition of ‘child pornography’. The opinions of police officers such as Detective Brevet Sergeant Simpson are helpful when sentencing but cannot supplant the opinion of a jury or judge as to whether the material meets the definition of ‘child pornography’.
Affidavit evidence
Mr Carey, in his affidavit, deposes only briefly to his discussions with his solicitor and counsel.
About a week before he pleaded guilty he attended at his solicitor’s office for a conference. Also present at the meeting were Mr Heffernan, Ms Lewis and Mr Do (principal of the firm).
Mr Carey said that Mr Heffernan ‘did most of the talking’ and painted a ‘very gloomy picture’. He says he was told that he had ‘no defence’ and that Mr Heffernan agreed with the decision of the Magistrate at the committal hearing that the images found were ‘pornographic’. He accepted that he was told that he would lose a discount if he ‘delayed the plea’.
Mr Carey stated that both his solicitor and counsel told him that he ‘had no chance of acquittal’. Mr Carey said that his personal opinion was that the images were ‘not child pornography’. He accepted the advice of Mr Heffernan and entered a plea of guilty on 4 March 2013.
Curiously Mr Carey stated at paragraph 15:
I have a number of other important points; the first being that I agree with the Officer Mr Simpson which is set out in the record of interview of what happened on the Police visit on Friday the 29th July 2011, in particular at page 2, line 21, when the Officer talked at that time “you made us aware that you may have accidentally downloaded some images”. It is true that I raised the question of the Police looking at these images, however I did so upon the state of mind that regarded these images as lawful and not breaching the Criminal Law.
Mr Carey has not accurately recorded that aspect of the interview. I have already set out the passage referred to in the record of interview. What was actually said was, ‘you may have accidentally downloaded some illicit images or images you were concerned about.’ (my underlining)
It is clear from the record of interview that, at that time at least, Mr Carey was concerned that he had images that were possibly ‘illicit’. I am not prepared to accept his assertion that his state of mind was that the images were lawful and not breaching the Criminal Law. Clearly there was at least some doubt in his mind about that.
Mr Carey went on to say that he had ‘some experience of the law’ and that he would ‘never have kept anything on my computer which could have been regarded as unlawful’. Subject to his ‘state of mind’ he did not dispute the prosecution case. For the reasons just set out I am not prepared to accept that assertion.
Mr Carey asserted that one of the factors important in his decision (to make this application) was his reading of police officer Rivett’s statement.[9] He refers to page 2 where she stated ‘these shots (referring to the images) were not pornographic in nature’.
[9] Paragraph 24 Affidavit sworn 29 May 2013.
The statement of police officer Rivett is dated 30 August 2011 and formed part of the material before the Magistrate at committal. Mr Carey does not explain why he did not take this into account before entering his plea.
Further Mr Carey does not refer to the entire passage. The statement reads:
These shots were not pornographic in nature but were provocative by way of poses and partially clad bodies wearing things such as a soccer outfit with no top on and a tuxedo with no shirt on. (my underlining)
The police officer was not proffering an opinion as to whether the images fell within the definition of ‘child pornography’.
I do not accept that his reading of this statement is relevant to the question I have to decide.
Mr Heffernan’s affidavit is more extensive. He met with Mr Carey on a number of occasions and made extensive notes of his attendances.
Mr Heffernan first met Mr Carey at a directions hearing conducted on 5 September 2012. After discussing matters with Mr Carey it was decided that a forensic computing report would be obtained.
Mr Heffernan confirmed that, as a result of his written instructions and his discussion with Mr Carey, he was aware of three issues:
1Whether it could be proved that he downloaded the images;
2Whether he had viewed them; and
3Whether the images were in fact child exploitation materials.
On 4 October 2012, in company with Ms Lewis, Mr Heffernan viewed a selection of the images.
On 8 November 2012, Mr Heffernan attended a conference with Mr Carey and Ms Lewis at the offices of Doconade Lawyers. Mr Heffernan explained to Mr Carey, amongst other matters, why he considered that at least some of the images he had seen ‘could be considered child pornography’ as defined in the Criminal Law Consolidation Act.
Notes made by Mr Heffernan at this meeting were exhibited to his affidavit[10].
[10] TJH 3.
The notes read: ‘TJH has viewed some of the images as not full nudity or sexual acts – but sexual in nature – CLCA – gratifying a sexual interest.’
There was, at this meeting, a discussion about obtaining a ‘forensic computing report’ to answer some of the prosecution allegations.
On 21 February 2013, Mr Heffernan attended another conference with Mr Carey and Ms Lewis at the offices of Doconade Lawyers. A copy of Mr Heffernan’s notes from this attendance, were exhibited to his affidavit.[11]
[11] TJH 4.
A number of issues were discussed. Mr Heffernan noted that he went through the prosecution case in some detail. The information obtained from the ‘defence expert’ would not assist in rebutting some of the prosecution case.
Of particular importance, in relation to this application, is that Mr Heffernan has noted that Mr Carey asked him ‘would any reasonable person regard a single one of these images as pornographic?’
Mr Carey stated to Mr Heffernan that ‘none of the images could satisfy the definition of child pornography’.
Mr Heffernan advised that the question is ‘determined by the Criminal Law Consolidation Act and the definition therein’.
Mr Heffernan agreed that there is a certain amount of discretion but his view is that ‘it will be found to be pornographic’.
There was discussion about the expert evidence and Mr Carey was advised that the police methodology and findings were ‘essentially sound’.[12]
[12] Affidavit of Mr Heffernan dated 19/8/13 paragraph 18.
At the end of the conference, Mr Carey was left to consider the matter.
The notes of Mr Heffernan indicate that Mr Carey said he would not necessarily maintain his plea of guilty and that he would ‘think about it’ and that he would speak to ‘John Edgington’.[13]
[13] Affidavit of Mr Heffernan dated 19/8/13 ‘TJH4’.
On 26 February 2013 Mr Carey, Mr Heffernan and Ms Lewis again conferred. The question raised at the previous conference about the expert evidence was discussed.
Mr Heffernan, in his affidavit, confirmed that he had indicated to Mr Carey that he would be found guilty if the matter proceeded to trial.[14] His notes indicate that Mr Heffernan was of the view that he had no defence available and that he would be found guilty. His best position was to plead and ‘get credit’.
[14] Affidavit of Mr Heffernan dated 19/8/13 paragraph 21.
It is noted that Mr Carey said that he appreciated Mr Heffernan’s frank advice and he preferred a shovel being called a shovel.
Mr Carey is noted as saying that it was likely that he would accept the advice but would see Ms Lewis the following day.
The final note of Mr Heffernan states, ‘He says he is leaning towards accepting my advice and pleading. He thought he hadn’t committed an offence but understands his view and the legal world’s view are not always consistent.’
On 27 February 2013, Mr Carey gave signed instructions to Ms Lewis that he wished to plead guilty to the charge.
The signed instructions contain the following paragraph: ‘I make this decision after having the opportunity to receive independent legal advice and upon the exercising of my free will’.
Mr Carey entered that plea of guilty before me on 4 March 2013. On that date the matter was adjourned to 7 May 2013 for submissions.
On 7 May 2013, Mr Bleechmore appeared as counsel for Mr Carey. Mr Bleechmore indicated that Mr Carey would be making an application to change his plea.
Ms Lewis, in her affidavit, confirmed that Mr Carey was given opportunities to discuss the merits of the case with Mr Heffernan or herself. She stated that Mr Carey was not pressured to enter a guilty plea.
Submissions
Mr Bleechmore submitted that the images as described by Detective Brevet Sergeant Simpson could not fall within the definition of child pornography. In the alternative, he submitted that Mr Corey’s belief that the images were not ‘child pornography’ was overborne by the ‘strong advice’ given by Mr Heffernan as to the likelihood of a conviction.
Mr Bleechmore viewed the images and went as far as to say that Mr Heffernan’s advice was inadequate, mistaken or incorrect.
I have viewed the images. I consider it was necessary for me to do so to determine the application.
Having viewed the images, I cannot agree with Mr Bleechmore’s description of the advice given by Mr Heffernan. It is certainly open to view at least some of the images in the way Mr Heffernan did. It was certainly open to him to give forthright or robust advice.
I do accept that not all counsel may have given such strong advice. I am prepared to accept for the purpose of this argument that some counsel may possibly have taken a different view. On the prosecution case the images fell within the least serious category.
I do not have to decide the point whether the images or some of them fall within the definition of ‘child pornography’. I accept for the purpose of this argument that Mr Heffernan formed a strong view about the likelihood that the images (or some of them at least) would fall within the definition of ‘child pornography’. I accept that he expressed that view to Mr Carey. I also accept that another counsel may not have formed such a strong view.
However, in my view a properly instructed jury could return a verdict of guilty on the images, or at least some of them, produced by the prosecution. This is a case where the images could amount at law to child pornography.
I accept that Mr Carey had a belief that the images did not amount to child pornography. He raised that issue with Mr Heffernan. As the notes of Mr Heffernan record, Mr Carey expressed the view ‘his view and the legal world’s view are not always consistent’.
There is no suggestion that Mr Heffernan or Ms Lewis overbore his will. Mr Carey clearly understood the issues involved and Mr Heffernan explained to him the definition of child pornography. He required time to think about his position and that he wanted to speak to someone else about it. When spoken to by the police he had at least some misgivings about the nature of the material.
Ms Matteo submitted that the facts reveal no more than a ‘change of heart or a late realisation of regret’ by Mr Carey. While that may be partly correct, he has now received legal advice that suggests his early legal advice was incorrect.
Ms Matteo submitted, correctly in my view that, if the matter had gone to a trial the jury themselves would have to assess the images and whether they fall within the definition of ‘child pornography’. Ms Matteo pointed out that the subjects were (1) all young boys; (2) that the photos were devoid of any innocent or legitimate context, but rather they were studio images involving props, costumes and posings; (3) that the electronic names given to the series of photos, such as ‘Filippo Boy Model’, ‘Pedro Model, Shirtless Only’, gave an indication that the objective intent was to apparently gratify a particular sexual interest; (4) in some of the photos, there is a prominence given to the genital area in the pose.
I cannot see that the third point made by Ms Matteo could lead to the inference she suggested. I accept that 1, 2 and 4 combined could possibly lead to that inference being drawn.
Overall she submitted the material showed quite deliberate and unnatural sexual posing on the part of prepubescent boys in a context which had no obvious innocent context but pointed towards the purpose of a particular sexual interest. I accept this interpretation of the photographs would be one for a jury to consider and accept.
Further, Ms Matteo submitted that the affidavit of Mr Heffernan demonstrated that he had given sound but strong advice and that Mr Carey had demonstrated an ability to consider the advice and make up his own mind. There could not be a suggestion that his will was overborne. Ms Matteo emphasised that there is nothing improper about counsel giving robust advice.
Discussion
There was no application for any witness to be cross-examined on their affidavits. I am left with sworn but untested evidence.
For the most part there is little difference between the respective versions of events. I have already discussed parts of Mr Carey’s affidavit.
Mr Carey asserts he was told that he had ‘no defence’ and that Mr Heffernan painted a gloomy picture.
Mr Heffernan agreed that he indicated to Mr Carey that he would be found guilty, and that he had no defence available.
I accept, for the purpose of this application, that Mr Carey may well have interpreted that advice as being ‘strong advice’. However, it is clear from the affidavits that Mr Carey had an opportunity to consider the advice after the last two conferences and make up his own mind. Indeed, it was not until the day after the last conference that he gave signed instructions to his solicitor to plead guilty to the charge.
It is clear that the questions of how to classify the images and whether the images themselves (or some of them) could be categorised as child pornography were discussed.
I accept that Mr Carey raised with Mr Heffernan his view that none of the images could fall within the definition of ‘child pornography’. It is equally clear that Mr Heffernan formed the view that, while there was ‘some discretion’ at least some of the images would be caught by the definition in the Criminal Law Consolidation Act. It is also clear that he expressed that view to Mr Carey.
Mr Bleechmore submitted that the affidavit evidence established that Mr Carey’s belief was that the images did not fall within the definition of child pornography. I accept that submission when confined to his discussions with Mr Heffernan. When he spoke to the police, as previously discussed, he was not so definite. However, the evidence also established that this particular issue was discussed by Mr Carey and Mr Heffernan. Mr Heffernan gave his advice that the images could be considered child pornography within the definition of the Act. Mr Carey clearly acknowledged to Mr Heffernan that his view may be different to the ‘legal world’s view’.
The evidence also establishes that Mr Carey was given the opportunity to consider his position. Indeed, at the end of the conference on 21 February 2013, Mr Carey said that ‘he would think about it’ and speak to ‘John Edgington’. He then received further advice on 26 February 2013 and deferred making a decision. It was the following day that Mr Carey instructed his solicitor that he wished to plead guilty to the charge. It should be noted that Mr Carey also expressed the view that he appreciated Mr Heffernan’s frank advice. He much preferred a ‘shovel be called a shovel’.
It was not until 4 March 2013 that the plea was entered before me.
Conclusion
The prosecution case was strong but I accept not overwhelming. Mr Carey received robust advice about his prospects of success. The advice could not be categorised as wrong, incorrect or imprudent. There was no improper or undesirable pressure. I accept that Mr Carey was influenced by the advice. However, his will was not overborne. He clearly considered the advice over a period of time.
I find that the plea of guilty was entered by Mr Carey in the exercise of a free choice. He decided to plead guilty weighing up in broad terms, his prospects of success against an appropriate discount form sentence for a plea of guilty.
There was in my view, nothing equivocal about the plea.
I am not satisfied that should the plea stand, a miscarriage of justice would occur.
I dismiss the application.