R v Catanzariti
[2014] ACTSC 109
•21 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CATANZARITI | |
Medium Neutral Citation: | [2014] ACTSC 109 | |
Hearing Date: | 21 February 2014 | |
DecisionDate: | 21 February 2014 | |
Reasons Date: | 29 May 2014 | |
Before: | Penfold J | |
Category: | Judgment | |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – pleas of guilty to four sexual offences – disputed facts hearing listed – application for leave to withdraw pleas of guilty – accused denying commission of acts constituting offences – circumstances in which plea of guilty may be withdrawn – whether pleas of guilty should be accepted – effect of disputed facts hearing if accused held to guilty pleas – disputed facts hearing would need to determine whether offences committed at all – disputed facts hearing in such circumstances similar to judge-alone trial but without scope for acquittal – judge-alone trials not available for sexual offences – not a satisfactory basis for disputed facts hearing – pleas of guilty rejected – matters referred to central listing for early trial. | |
Legislation cited: | Supreme Court Act 1933 (ACT), s 68B and Schedule 2 | |
Cases cited: | Lim v Bateman (2001) 125 A Crim R 101 Maxwell v The Queen (1996) 184 CLR 501 R v Gomez [2007] ACTCA 21 | |
Decision: | 1. The accused’s pleas of guilty to the following charges are rejected: (a) sexual intercourse without consent; (b) attempted sexual intercourse without consent; (c) assault with intent to commit act of indecency; (d) assault with intent to commit act of indecency. 2. A trial of the specified charges is to be included in the Pilot Central Criminal Listing. | |
Parties: | The Queen (Crown) Anthony Catanzariti (Accused) | |
File Number(s): | SCC 208 of 2012 | |
Introduction
On 20 July 2012, Anthony Catanzariti was charged with nine offences arising out of an incident in July 2012. He pleaded not guilty, but on 14 October 2013, after many months, many appearances, difficulties in arrangements for him to be represented, and negotiations with the prosecution, he entered pleas of guilty to eight charges, being:
(a) one of unlawful confinement;
(b) two of assault occasioning actual bodily harm;
(c) one of threatening to inflict grievous bodily harm;
(d) two of assault with intent to commit an act of indecency;
(e) one of sexual intercourse without consent; and
(f) one of attempted sexual intercourse without consent.
The matter was adjourned for sentence, but when the sentence hearing began on 16 December 2013, it became apparent that a disputed facts hearing would be needed before the sentencing hearing could usefully proceed. The hearing was listed for three days in April 2014.
On 3 February 2014, counsel for Mr Catanzariti indicated that his client disputed the central facts of the four sexual assault charges (Counts 3, 4, 5 and 6 on the indictment), and wished to make an application to withdraw his pleas of guilty. The application was subsequently filed, and the hearing of the application began on 12 February 2014. The grounds of the application were as follows:
i.To require the pleas of guilty to stand in the circumstances would result in a miscarriage of justice to the Applicant.
ii.That the pleas of guilty were not made unequivocally and were not true admissions of guilt.
iii.If the pleas of guilty are not withdrawn then the integrity of the legal process of this Honourable Court will be undermined.
The pleas of guilty
An affidavit was provided by Mr Catanzariti’s solicitor, Craig Lynch. Mr Lynch outlined the circumstances in which the guilty pleas were entered:
5.On 29 August 2013, in conference at the Alexander Maconochie Centre (“the jail”) with Mr Ray Livingston, instructions were taken from the Applicant to the effect that he disputed his guilt to Counts 3, 4, 5, and 6.
6.On 19 September 2013, the Applicant’s matter was listed in this Honourable Court for Directions. Mr Livingston, who appeared on behalf of the Applicant, advised me that prior to the matter being called on he had a brief conversation with the Applicant during which the Applicant advised that notwithstanding his previous instructions concerning the charges which he intended to plead not guilty to, he would plead guilty to all charges preferred against him if the charge of aggravating [sic] burglary preferred against his girlfriend, Ms Sharni Woods was discontinued.
7.On 24 September 2013, in conference at the jail with myself and Mr Livingston, the Applicant confirmed his instructions as set out in the paragraph above. He also requested that Mr Livingston approach the prosecution and request that the number of charges of sexual assault be reduced. He further indicated that he would agree to plead guilty to the best deal that could be negotiated for him if the charge against his girlfriend was discontinued. At no time during the conference did the Applicant assert that he had committed the acts alleged by the prosecution that comprised the sexual assault charges or any of them.
Representations were accordingly made to the Director of Public Prosecutions (DPP). The response, by email dated 11 October 2013, was that the DPP would abandon the charge against Ms Woods, and the equivalent charge against Mr Catanzariti, that the eight sexual offences that had been considered in the course of the proceedings had already been reduced to four, and that the number of other charges to proceed had also already been halved. The implication was that the DPP was not prepared to abandon any more of the charges.
Three days later, on 14 October 2013, Mr Catanzariti pleaded guilty to the remaining eight charges.
Mr Lynch further deposed:
11.On 16 December 2013, Mr Livingston and I saw the Applicant in conference in the cells at the ACT Supreme Court. During that conference a statement of facts in respect of the charges that the Applicant had entered pleas of guilty to was read to him. When the facts alleged with regard to Counts 3, 4, 5, and 6 were read to him, the Applicant responded by saying words to the effect “that’s bullshit, I didn’t do that”.
I note that Mr Catanzariti’s rejection of the facts of the four sexual offences did not involve subtleties such as whether he had had the state of mind necessary to establish the offence concerned (for instance, whether he had known or been reckless about the complainant’s lack of consent), but consisted of an unqualified denial of the acts constituting the offences. A denial of the physical element of an offence is in my view harder to dismiss as self-deceiving sophistry than would be, for instance, a quibbling about the existence of the necessary mental element for the offence or the availability of a “defence” such as self-defence or claim of right.
Application for leave to withdraw pleas
The application was, as noted, initially identified as an application for leave to withdraw pleas of guilty, and some consideration was given to the criteria for the giving of such leave, being in general terms that leave should be given if holding the accused to his pleas would result in a miscarriage of justice; R v Gomez [2007] ACTCA 21 (Gomez). The circumstances in which a miscarriage of justice might result were identified in Meissner v The Queen (1995) 184 CLR 132 at 157 (Dawson J), as follows:
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. [citations omitted]
In Loury v The Queen [2010] NSWCCA 158, the Court of Criminal Appeal (Whealy J, with whom Hodgson JA and Kirby J agreed) summarised the principles relating to withdrawal of a plea:
97. The principles of law relevant to this appeal are not in dispute and were not contested by counsel. The Court has power to hear an appeal notwithstanding that the appellant pleaded guilty before the sentencing court. It will allow the appeal where a miscarriage of justice may have occurred (R v Chiron [1980] 1 NSWLR 218).
98. In determining whether a miscarriage of justice has occurred, Giles JA (with whom Hislop J and Rothman J concurred) examined the circumstances where a plea has been entered in R v Rae (No 2) (2005) 157 A Crim R 182. The ultimate question was not, his Honour stated, the guilt or innocence of the accused person, but rather the integrity of the plea itself (at 188). As Giles JA notes in the later judgment of Sabapathy v The Queen [2008] NSWCCA 82 at [14], there will be no miscarriage of justice where the court acts upon a plea of guilty “entered in the exercise of a free choice in what the accused believes to be his interests at the time” and “where there is a genuine consciousness of guilt”. Similarly, Hulme J stated in Woods v The Queen (2008) 184 A Crim R 108 at 116, not only must it be shown that the person entering the plea did not entertain a “genuine consciousness of guilt” but also that there must be “some factor demonstrated going to the integrity of the plea.”
99. What also emerges from the authorities is that a plea of guilty may be entered for reasons other than a belief in one’s own guilt. As noted by Dawson J in Meissner v The Queen (1995) 184 CLR 132, the accused person’s exercise of free choice may “extend beyond that person’s belief in his guilt” and includes situations such as the avoidance of worry or inconvenience, the protection of one’s family and even “the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty” (at 157). However, as Howie J made clear in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [33], there will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage, despite maintaining one’s innocence, so long as the plea was entered in the exercise of a person’s free choice or in his or her own interests.
100.In Hura v The Queen (2001) 121 A Crim R 472, Spigelman CJ sets out a number of circumstances in which the court has set aside a conviction following a plea of guilty. These include the appellant’s lack of appreciation of the nature of the charge for which he has entered the plea, the appellant not being in possession of all the facts, and the appellant not entertaining a genuine consciousness of guilt when entering the plea. It extends to situations where the plea has been induced by threats or impropriety when the applicant would not otherwise have pleaded guilty (at 478). Added to these circumstances are a number of further examples provided by Grove J in Sauer v The Queen [2006] NSWCCA 81 at [8]. In that case questions arose regarding the quality and propriety of legal advice leading to the entering of a guilty plea (R v Wilkes (2001) 122 A Crim R 310; R v KCH (2001) 124 A Crim R 233).
Whether pleas should be rejected
However, in the course of argument I became concerned that the question in this case was not confined to whether Mr Catanzariti had established grounds on which I should allow him to withdraw his pleas of guilty but extended to the question whether, in the light of the material then before me, I should in fact refuse to accept, or should set aside, his pleas of guilty. The question whether a judge is obliged to reject a plea of guilty appears to raise slightly different considerations from those relevant in determining whether leave should be granted to withdraw a plea that has been accepted.
Both issues were considered by the New South Wales Court of Criminal Appeal in Norvenska v Director of Public Prosecutions(Cth) [2007] NSWCCA 158 (Norvenska) at [21] to [27] (cited in Gomez), as follows:
21A plea of guilty to a criminal charge is undoubtedly a serious matter. Nowadays it is accepted as a basic requirement of a fair system of criminal justice that, at least in serious cases, and wherever reasonably practicable, an accused person should have access to legal advice before entering a plea. Nevertheless, the bulk of cases are dealt with on a plea of guilty and it is likely that the system would cease to operate in a timely fashion, were that to change. No doubt many people plead guilty without legal advice.
22Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client’s best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.
23It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant “did not appreciate the nature of the charge or did not intend to admit he was guilty of it”: see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption.
24The circumstances in which a plea of guilty may be withdrawn were considered in Maxwell v The Queen (1995) 184 CLR 501, but in a context where the primary issue was the right of the trial judge to reject a plea to a lesser offence than that charged. At 510-511, Dawson and McHugh JJ stated:
“An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however 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. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.”
25Read in context, it may be seen that these principles were expressed in relation to the power of the trial judge to reject a plea, rather than as to the circumstances in which an accused may withdraw a plea. The latter point was more directly addressed in the joint judgment of Gaudron and Gummow JJ at 531, in the following terms:
“There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.”
26As may be seen from the summary of cases set out by Spigelman CJ in Hura (2001) 121 A Crim R 472 at [32] and [33] and Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [15], these principles have been stated from time to time in differing language. However, it is not necessary to address the variations in expression. Many of the cases involved an appeal from conviction based on a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea. In principle, no stricter test should be applied to an application before conviction: see R v Middap (1989) 43 A Crim R 362 at 364 (CCA, Vic) and R v Parkes [2004] NSWCCA 377 at [49] (Hodgson JA).
27It is also common to note the “principles of restraint” identified by Kirby P (Grove and Newman JJ agreeing) in Liberti (1991) 55 A Crim R 120 at 122:
“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 … .”
In some circumstances, the circumspection may be based upon a concern that changes in plea may involve an attempt to manipulate the system to delay a feared conviction and sentence. However, no such issue arose in the present case and the matter should be approached on the basis that if the trial judge should have been satisfied by the applicant that he had been inappropriately advised and did not understand the charge, a miscarriage might well eventuate from an insistence on adherence to the plea.
As noted, the comments in Maxwell v The Queen (1996) 184 CLR 501 were made in the context of consideration of the power of a trial judge to refuse a plea to a lesser charge, but I do not understand them to be limited to such circumstances to the extent that they require the plea to be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt (see for instance Lim v Bateman (2001) 125 A Crim R 101 at [39] to [41]).
An unintended consequence?
In Norvenska at [27] the Court referred to the possibility that an attempt to withdraw pleas of guilty might be made in an attempt to manipulate the system to delay the finalisation of the matter. I have no reason to believe that any such desire was behind the application in this case, or that counsel in pursuing the application did anything other than give effect to his client’s instructions.
However, I was influenced in this case by what would have been one of the consequences of requiring Mr Catanzariti’s pleas to stand despite him indicating to his counsel that “I didn’t do that”. That consequence was that the disputed facts hearing would have had to be conducted on the basis that Mr Catanzariti disputed the central facts of the four charges. That is, the proceedings set down as a disputed facts hearing would have involved not just the determination of matters of detail that might affect Mr Catanzariti’s sentencing but primarily the determination of whether the Crown could establish the elements of the offences concerned.
In effect, the proposed disputed facts hearing would become a judge-alone trial, albeit without scope for an acquittal if the Crown failed to establish the elements. If at such a hearing I found that facts sufficient to make out a charge had been proved beyond reasonable doubt, I would record a conviction based on the plea, and sentence accordingly. If those facts had not been established, I would at that point have had to refuse to accept the plea; as noted, there could be no acquittal, and the charge could either proceed to trial or be abandoned by the prosecution. I imagine that the prosecution would think carefully about pursuing a charge after a judge had heard all the relevant evidence and rejected the pleas of guilty on the basis that the offences were not established beyond reasonable doubt by that evidence.
Furthermore, to the extent that the disputed facts hearing would have been run as, in effect, a judge‑alone trial (albeit without the possibility of an acquittal as such) there was also the concern that judge‑alone trials for sexual offences are no longer available in the ACT (Supreme Court Act 1933 (ACT), s 68B and Schedule 2). Conducting a process similar in so many respects to a judge-alone trial (and likely to have similar although not identical consequences), in circumstances where a judge‑alone trial as such would not be permitted, seemed liable to set an undesirable precedent.
It seems most likely that that the prospect of, in effect, a judge-alone trial on the sexual offences was an unintended and possibly unrecognised consequence of the various instructions apparently given by Mr Catanzariti to his counsel. Certainly I have no reason to believe that this was Mr Catanzariti’s original intention in pleading guilty, then seeking a disputed facts hearing, then putting the actual commission of the offences in issue.
An alternative approach to this problem might have been to rule that the disputed facts hearing could not extend to the facts alleged to establish each element of the offence concerned. However, this would have meant that Mr Catanzariti’s pleas as such (the articulation of the word “guilty” at each relevant point) were the only basis for accepting that those elements of the offence had been established, and that these would have had to be relied on despite his subsequent claims that he had not done the relevant acts. It would also presumably have required me to set aside any doubts about those elements raised by the evidence that I did hear. This did not seem to be either a satisfactory basis on which to conduct a disputed facts hearing or a satisfactory basis on which to sentence a person for serious offences.
Conclusions
The circumstances in which Mr Catanzariti agreed to enter the pleas of guilty can be summarised as follows:
(a) he offered to plead guilty to various charges in the hope of persuading the prosecutors to withdraw a related charge of aggravated burglary against his girlfriend, but also on the basis that a further attempt was to be made to negotiate a reduction in the number of the charges to which he would have to plead;
(b) when the negotiations were successful in relation to Mr Catanzariti’s girlfriend but not in relation to a reduction in his own charges, Mr Catanzariti agreed to plead to all the relevant charges, and did so; but
(c) when his lawyers received the draft statement of facts and began to read it to Mr Catanzariti, it quickly became apparent that he disputed the core allegations underpinning the charges concerned.
That is, it seemed that Mr Catanzariti had entered his pleas in the context of partially successful negotiations with the prosecution about what charges would proceed, but without focusing on the fact that at some point he would need to agree at least to a statement of facts that described the relevant events sufficiently to establish the elements of the offences concerned. The fact that he had not been taken through the draft statement of facts before the pleas were entered was unsurprising, given that the statement was only prepared after the pleas were made. No doubt Mr Catanzariti had previously had access to the prosecution case statement, but no trial date had been set and there was no basis on which I could have found that he had discussed that statement with his lawyers, or received detailed advice about its contents, beyond what was necessary for any advice he received about the benefits of an early plea of guilty. Nor was there any basis for assuming that Mr Catanzariti was either an enthusiastic or even particularly competent reader. Counsel for Mr Catanzariti indicated in submissions that over time he had found it quite difficult to obtain instructions from his client, and this appeared consistent with the difficult progress of the matter as outlined at [1] above.
In these circumstances, I could not be satisfied that Mr Catanzariti’s pleas of guilty were genuine or unequivocal. Having come to that conclusion, it did not seem necessary to pursue the separate question (to the extent that it raised different issues) whether Mr Catanzariti had established that there would be a miscarriage of justice if he were not permitted to withdraw his plea, although his assertion that he hadn’t done the relevant things certainly suggested the absence of a genuine consciousness of guilt.
Since it was clear that no unequivocal pleas of guilty would be forthcoming at that point, I rejected Mr Catanzariti’s pleas of guilty to the charges of sexual intercourse without consent and attempted sexual intercourse without consent, and to both charges of assault with intent to commit an act of indecency, and ordered that a trial on the relevant charges be included in the forthcoming Pilot Central Criminal Listing.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Associate:
Date:
Representation: | Counsel: Ms S McMurray (Crown) Mr R Livingston (Accused) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Craig Lynch & Associates (Accused) |
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