R v Cave - [2011] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CAVE
[2011] SADC 47
Reasons for Ruling of His Honour Judge Stretton
8 April 2011
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The accused pled guilty to persistent sexual exploitation of C1, a child, together with other sexual offending against other complainants. He did so as part of a plea bargain with the prosecution whereby certain counts would be withdrawn, which occurred. When C1 read his victim impact statement which described how the offending had affected his life, the accused did not accept what was said and became upset that C1 had not included all the ‘positive’ things the accused had done for C1. The accused applied to withdraw his plea of guilty on the basis that he was in fact not guilty, had pled guilty only as a matter of convenience, and was upset that the victim had excluded the positives from his victim impact statement. The accused’s lawyers gave evidence that the accused had maintained his innocence to them.
Held: A withdrawal of a guilty plea will be permitted where a miscarriage of justice would otherwise occur. The law recognises that an accused is entitled to plead guilty even when he asserts innocence. Where a plea is entered in those circumstances it will not amount to a miscarriage of justice if it was made in full appreciation of the charges and in full knowledge of the consequences of the plea; and was not as a result of any improper inducement or unfair pressure. Asserted innocence and annoyance at the contents of a Victim’s Impact Statement does not amount to a miscarriage of justice in this case. Application to withdraw plea refused.
R v Brooks (2006) 95 SASR 369; R v Hura (2001) 121 A Crim R 472 ; R v Ferrer-Esis (1991) 55 A Crim R 231 ; R v Symons (1988) 143 LSJS 463; R v Balogh (1977) 16 SASR 326; Rainbird v Samuels (1972) 4 SASR 187; R v Murphy (1965) VR 187; Maxwell v The Queen (1996) 184 CLR 501; R v Davies (1993) 19 MVR 481; R v Boag (1994) 73 A Crim R 35; Meissiner v The Queen (1985) 184 CLR 132; Liberti v R (1991) 55 A Crim R 120; R v Pugh (2005) 158 A Crim R 302, considered.

R v CAVE
[2011] SADC 47
Introduction

This is an application by the accused Phillip Cave, to withdraw a plea of guilty.
Following negotiations between the prosecution and the defence, on the day of his trial for 12 counts of sexual offending against four complainants the accused entered the plea of guilty to five counts and in light of that plea the prosecution withdrew the remaining seven counts.
Some time later, subsequent to the allocutus, several adjournments, victim impact statements being read and a psychological report being obtained, an application has been made to withdraw the plea of guilty to count one of the charges to which the accused pled.
The charges
The accused is charged on information with one count of persistent sexual exploitation of a person I will describe as C1. It is alleged that between January 1980 and June 1986, the accused committed a number of acts of sexual exploitation of C1, a person of under the age of 17. Fifteen acts of intercourse or indecent assault are particularised. It is this plea he now seeks to withdraw.
The accused was also charged with six individual offences against C1, one of indecent assault and five of unlawful sexual intercourse over a similar period.
The accused was also charged with two counts of unlawful sexual intercourse with a person I will call C2, between 1982 and 1985.
The accused was charged with two counts of indecent assault against a person I will call C3 between 1982 and 1986 and one count of indecent assault against a person I will call C4, between 1984 and 1986.
Each of the complainants was a male between the ages of 12 and 17 at the relevant time.
The course of proceedings to date
Counts one to seven concerning C1 came to light in the following way. C1’s treating doctor/counsellor referred the matter to police. As a result police contacted C1 in October 1997. As a result of this contact, C1 detailed his allegations to police. The police also obtained a “recent complaint” statement from C1’s then de-facto. At that time no charges could be laid concerning any alleged offences prior to 1982, in light of legislation in force at that time.
Further statements were taken from the C1, but during the course of ongoing investigations he moved interstate and the investigations were unable to be completed.
In light of all of these circumstances, no charges were laid at that time.
In mid to late 2005 more allegations were received by police about the accused. An investigation was recommenced into the accused’s alleged offending. In January 2006, police obtained a detailed statement from C2 concerning the allegations that form counts 8 and 9 in the information.
Police also obtained statements from C3 and C4 concerning the allegations that form counts 10 and 12 in the said information.
Police then took further statements from C1 in June 2006. In March 2008 C1 accompanied police to various locations in Adelaide identifying premises relevant to his allegations.
Police submitted an apprehension report in relation to these matters in June 2008, however the accused was not interviewed by police as his solicitor indicated he did not wish to answer questions nor did he wish to hear allegations concerning these matters[1].
[1] See the declaration of Detective Brevet Sergeant Wilkinson dated 26 September 2009.
An information and summons alleging the said offences was executed on 27 May 2009 and the accused was brought before the Adelaide Magistrate’s Court on 11 August 2009. The court file indicates that the accused was represented by a solicitor at that time. The accused then appeared before the Adelaide Magistrate’s Court on 6 October 2009 represented by his current solicitor, Mr Love, when the matter was adjourned. He again appeared at the Adelaide Magistrate’s Court on 15 December 2009, again represented by Mr Love. The case was adjourned for a case conference. The accused again appeared on 15 January 2010 represented by Mr Love. It was adjourned to a committal hearing in the Adelaide Magistrate’s Court scheduled for 5 March 2010.
On that date the accused was again represented by Mr. Love and a committal hearing took place. The declarations including the declarations of C1 containing the allegations had been supplied to the accused. He pled not guilty before the Magistrate’s Court on the day of his committal.
On 5 March 2010 the accused was committed for trial to the District Court.
The matter came before the District Court on 6 April 2010. On that day the accused pled not guilty and the record shows that he signed each page of the information. The information particularised the charges in some detail. The accused was again represented by Mr Love on that occasion.
On 18 May 2010 the matter was listed for trial to commence on 11 October 2010. The accused was again represented by Mr Love
The plea of guilty
The matter then came before this court for trial on 11 October 2010. On that day, Mr Stewart of counsel appeared on the instructions of Mr Love for the accused. He indicated that the accused would plead guilty to counts 1, 9, 10, 11 and 12 in the information, and that on that basis the Director of Public Prosecutions would enter nolle prosequi’s on the other counts. Counsel for the Director of Public Prosecutions confirmed that agreement. Mr Stewart informed the court that his client had seen the particulars in the information and had specifically instructed his solicitor Mr Love in relation to each of those particulars.
The accused then entered his plea to count one in the information. The clerk of arraigns then asked the accused whether in relation to count one he admitted the particulars alleging the 15 acts of sexual offending ‘a’ through to ‘o’ particularised in count one of the information dated 6 April 2010. That count related to offending concerning C1. The accused replied that he did admit those particulars.
The accused then entered pleas of guilty to counts 9, 10, 11 and 12 in the information. Those counts related to offending concerning C2, C3 and C4. That having occurred, the DPP entered a nolle prosequi to counts 2, 3, 4, 5, 6, 7 and 8 in that information. Counts 2 to 7 concerned C1, and count 8 concerned C2.
On the basis of the forgoing, no trial took place on 11 October 2010. The alloctus was administered, an antecedent report tendered and with the consent of all parties, the matter was listed for submissions in mitigation on Friday, 5 November 2010.
On 5 November 2010, counsel for the accused applied to adjourn submissions to a later date. The application was made on the basis that a further information alleging subsequent sexual offending had been committed to the court and counsel wished the matters to be dealt with together. The information to which he had pled dealt with offending between 1980 and 1986. The further information dealt with unrelated alleged offending against other complainants in the 1990’s. I will refer to those matters as ‘the alleged 1990’s offending’. To that end, counsel requested that both matters be dealt with by way of submissions on Friday, 17 December 2010.
The effect of counsel’s submissions was that a plea of guilty was being negotiated in relation to that other matter, but a little further time would be needed in that respect. In particular, counsel for the accused told the court that there would be “no issue of a not guilty plea” to that other matter[2]. On that day the court adjourned at 9.48am, directing that the accused remain in the cells at court for the rest of the day to enable the accused’s legal representatives to speak and finalise any further instructions they may require.
[2] Transcript of proceedings 5 November 2010, page 3.
The matter was then adjourned, being called on again on Monday 20 December 2010. Contrary to indications, the other information concerning the alleged 1990’s offending had not resolved. The accused entered a plea of guilty to counts one and two of that other information, but not guilty to ten other counts of alleged sexual offending against a number of complainants. That information was adjourned to a directions hearing to allocate a trial date.
On that basis, counsel applied for the current matter to be adjourned in its entirety to abide the outcome of the other trial, so that the accused could be sentenced for all matters which he pleaded guilty to, together with any he was convicted by the jury of, at one time.
I was concerned at the lengthy and open ended time frame that this might represent, in relation to the current information which had fully resolved. There was no connection between the two informations. They deal with different complainants in different decades. Counsel for the DPP emphasised that the lack of finality for the victims was a concern and that C1 had attended court that morning wishing to read aloud his victim impact statement. Counsel for the DPP submitted that;
That has caused significant stress and trauma on him, preparing for this process, my understanding is the preparation of the other victim impact statements by the other victims has also similarly been a very intense process, so in terms of their current state, that is how I would summarize where they are at. Obviously they would very much prefer that these matters that have resolved proceed now as opposed to wait the outcome of the other unrelated information.
Counsel for the DPP concluded by saying that the victims had a strong preference that the matter proceed that day.
Upon consideration, I determined that the information that had fully resolved should proceed that day, rather than be adjourned off for an extended and uncertain period to await the outcome of the other unrelated matter which had yet to be listed for trial.
Counsel for the accused sought an adjournment to obtain further instructions. I granted that request and upon reconvening, counsel for the accused indicated that he had been instructed to appeal my ruling that sentencing submissions on the fully resolved information should proceed. On that basis, counsel for the accused again sought an adjournment. Counsel for the accused also submitted they needed time to obtain a report on the accused. I indicated that I would grant an adjournment for that latter purpose.
Victim impact statements were tendered in relation to each of the complainants in this matter. C1 had attended, and as previously mentioned, strongly wished to read his statement. The contents of that statement have some relevance to this application, as they seemingly form at least part of the basis why the accused now wishes to change his plea. I set those out in full for that reason. I have omitted the names of C1 and his brother.
I am making this statement to inform the court about how this crime has affected me.
My life before you came into it was what I thought you would call normal. I was a pure minded child, with the perfect parents, the perfect innocent mind, until you poisoned me. Because of what you did to me my life still, even now is stressful. I have severe depression and anxiety for which I have to take medication for. Nothing in my life has been easy since you did these things to me. This has been for a long time now and every time when I think my life is going great for a while, it then falls apart. My view of the world has changed many times over the last 28 years, as I had to try to deal with what you did to me. I was angry at the world for a long time because nobody knew my inner pain. When people knew about what you had done to me, it became easier because some of those people accepted, understood and helped me.
Even today, I almost always feel sad, my moods are scattered and all over the place. It’s hard not to stress over even the simplest of things like answering the phone or getting dinner ready. I have tried counselling many times and it’s so hard. Now I just continue to have nightmares, so its hard to sleep, I feel unsafe when I wake up. It has been hard for me to work sometimes, and stay focused on life because most nights I just don’t sleep.
I felt ashamed to tell anyone about what you had done to me. I had anger problems and violently abused people. I felt embarrassed because I thought people would call me gay. Which they did at school, I got teased.
The impact this has had on other people in my life is incredibly high. My mum, my dad, my kids, my partners, my friends, all have been impacted on, because I have been impacted on so greatly because of what you did to me. I have trouble sexually myself and have felt very uncomfortable in relationships.
My two daughters know about the crimes you did to me. They don’t really understand what you did to me. My brother (name given) won’t talk to me. My father knew and his first reaction was that I was gay. We both felt so ashamed. My dad was ashamed of me and I was ashamed too because of what you did. My mother could never deal with the abuse you did to me. When I told her what you had been doing to me, she aged overnight and blamed herself.
I turned to drugs and alcohol and couldn’t control my temper, I lost friends and partners. This crime had a huge impact on my personality, my lifestyle, my character. I’m so shy and find it hard to trust anyone. My life is so uncertain. I am confused and never know how to show emotion. My life felt like it was ripped away. You took my life away. You will never know how many tears I have shed, how many nightmares I have and how much damage you have done with what you did to so many. The hurt. You are evil. I will carry this terrible pain, the horrible memories, they will be in my nightmares forever. All these times I felt disgusted, dirty, scared, hurt, betrayed, lonely and angry.
Now that I have faced you, my life can start afresh, and you will face the consequences of your actions and maybe your life will be hell instead of mine.
The victim impact statements of the other two complainants were also read.
On the application of the accused, submissions were then adjourned to 23 February 2011. Counsel for the accused indicated that he had already made significant progress with detailed written submissions on sentence for the matter.
From the above, it is plain that since August 2009 the accused had been continually legally represented in relation to this information, received the declarations in full, and being committed for trial had given instructions and entered pleas of not guilty on two occasions, prior to changing his plea to guilty in the context of a resolution of the information with the DPP on the day of trial. It is accordingly clear that he would have had a very good understanding of the allegations against him as particularised in both the summary information, the information filed in this court, and fully set out in the declarations served on him over a year earlier.
The matter came back before the court on 23 February 2011 for submissions in mitigation of penalty. At that time counsel for the accused indicated that he was instructed to apply to change the accused’s plea in relation to count one in the information. Count one concerned the persistent sexual exploitation alleged against him concerning C1.
At that time, the accused’s counsel said “It may also extend to the complainant in counts eight and nine”, being C2. At that time, counsel for the accused indicated that he had had only time to go through the apprehension report in relation to C2 and he wanted to go through the actual statements of C2 with the accused. Counsel for the accused indicated that there was “No dispute in relation to counts 10, 11 and 12”.
This change of stance was provisionally surprising, given the lengthy history of the matter.
Counsel for the accused indicated that he had spoken briefly with the accused in relation to a report of a psychologist Mr Fugler, which had apparently been obtained in the meantime, for the purposes of submissions on the plea. He said that “Mr Cave adheres to his instructions to Mr Fugler”, which apparently were that he was not guilty of the offending which comprised count one.
I adjourned the matter at 10.16am until shortly after 1pm to allow counsel to get any further instructions needed. When the court reconvened at 1.11pm, counsel for the accused indicated that both he and his instructing solicitors instructions had been terminated. The accused then sought and was granted an adjournment to obtain alternate legal representation.
The matter recommenced on 3 March 2011, on this occasion the accused was represented by Ms Harvey on behalf of Mr Twiggs, his new solicitor. The accused’s counsel was not ready to proceed and the matter was accordingly adjourned to 10 March 2011. On that date counsel again were not ready to proceed, and the matter was further adjourned.
Application to withdraw the plea of guilty
This application proceeded on 30 March 2011. Three affidavits were tendered together with some supporting correspondence. The accused tendered his own affidavit. He said as follows;
1. I am 60 years of age.
2. I am currently in Yatala Labour Prison serving a sentence for sex offences committed in the 1970’s.
3. I am facing charges also from 1980’s and 1990’s, all dealing with indecency offences. I waiver legal professional privilege in relation to charges involving (C1).
4. I am now not sure after having pleaded guilty to so many charges how or when I came to plead guilty to when (C1) is the complainant.
5. I do not know whether I signed any documents, a charge sheet or instructions that I was guilty of any offence dealing with (C1).
6. I was in a state of denial for quite a while and I wanted everything just finished as soon as I could to put this bad and sad chapter behind me.
7. I heard (C1’s) victim impact statement and I was in total non belief of him.
8. These things did not happen to him and I could not sleep that night then finally realised that I cannot admit to crimes that I did not commit.
9. I did not have any visits from any lawyers in between time and the next opportunity that I had was when I went to court and told the court that I could not maintain my plea for (C1) as it had never occurred.
10. The only reason for me for pleading guilty in the first instance was a plea of convenience and then it finally dawned upon me what (C1) was saying and that I had not committed any offences against him at all. I had to voice my innocence.
11. The first person that I was able to speak to about this alleged crime was Mr Fugler when he came and saw me at Yatala Labour Prison.
12. I emphatically denied it to him. Attached is a report of Mr Fugler and marked “PC”
13. I have never provided instructions that I, in fact, did it and how I did it. The furtherest that I went was saying that I would plead guilty to the charge. I now realise that I cannot do that as I did not commit the crime.
14. I have also been visited by Mr James Stewart counsel in relation to the 1990’s offences.
15. Mr Stewart spoke to me about those offences and I denied those offences to him. He never spoke to me about the 1980’s as at that stage he was not dealing with those offences, he was only dealing with the trial matter. There is no doubt if he spoke to me about the 1980’s and in particular (C1), I would have informed him that I was not guilty of it.
16. It is my memory that I never told Mr Mark Love anything about the offences dealing with (C1) and I can be definite on that because those offences never occurred so there was nothing to discuss.
17. In relation to offences dealing with (C1) I can say;
i. I would never have gone to (a place) with just (C1).
ii. At all times there were other people present the majority of the time his brother (person named) was present.
iii. (Person named) was present most of the time when I was in company with (C1).
iv. (Person named) would have been in my company a lot more than (C1) and often by himself as this was not the case in relation to (C1). I am sure (person named) would agree to this.
v. I was rarely in a position or situation to commit the crimes (C1) is alleging I committed.
18. I did not commit the crimes (C1) states I did.

That affidavit was executed on 9 March 2011.
Two further affidavits were tendered. The affidavit of Mark Robert Love, the accused’s former solicitor was tendered. In that affidavit Mr Love states he acted for the accused in respect of 1970’s offences, for which he is currently serving a significant prison sentence for sex offending[3]. Mr Love indicates that on 24 August 2009 he was authorised by the Legal Services Commission to act for the complainant in relation to alleged sexual offending in the 1980’s and 1990’s.
[3] Sentencing remarks of Judge Soulio, 30 April 2008.
On 1 October 2009, Mr Love states he received the information and the apprehension report relating to the matter before me, the 1980’s offending. On 2 October 2009 he spoke to the accused on the phone at Yatala Labour Prison for ten minutes. He read the accused details of the charges and the evidence in support. He says the accused said he knew C1 during the 1980’s but denied the offending. Mr Love says the accused also said he did not know the names of the other complainants and he wished to plead not guilty to all the charges.
Mr Love states he attended the Adelaide Magistrate’s Court on 6 October 2009 and received the declarations in the matter. At a further hearing on 15 January 2010 he appeared at the Adelaide Magistrate’s Court to receive further declarations. He confirms he appeared on 5 March 2010, when the accused appeared and pled not guilty. The matter was committed to the District Court and Mr Love again attended on 6 April 2010, where the accused entered a further plea of not guilty to the District Court information. He again attended on 18 May 2010, when a trial date of 11 October 2010 was listed. Mr Love then addressed the circumstances whereby the accused changed his plea to the matters involving C1. He said as follows;
8. On 4 August 2010 I attended the Adelaide Magistrate’s Court when Mr Cave entered a plea of not guilty to an unrelated charge of indecent assault. The trial proceeded before Mr Field SM. After hearing evidence and submissions His Honour found Mr Cave guilty of the charge. Mr Cave gave evidence denying the commission of the offence. Mr Cave was sentenced to nine months imprisonment cumulative upon the current sentence. Mr Cave’s non parole period was extended by four months. Following the finding of guilt, I immediately attended upon Mr Cave in the Adelaide Magistrate’s Court cells. Mr Cave instructed that he did not wish to proceed to trial in the District Court on 11 October 2010 in relation to the 1980’s matters. Mr Cave’s view was that he would not be believed and defending the matters was futile. He instructed me to obtain the best plea bargain possible.
9. On 20 September 2010, I spoke with Ms Hannah Smith, solicitor at the DPP with conduct of the Cave matter. I advised Ms Smith that Mr Cave wished to resolve the 1980’s matters. Ms Smith advised she would propose a possible resolution.
10. On 29 September 2010, I received a facsimile from Ms Smith, a copy of which is attached here to and marked “MRL1”.
11. On 30 September 2010, I sent correspondence to Mr Cave at the Pt August Prison advising that the prosecutor was prepared to withdraw seven of the charges on the basis that he plead guilty to the remaining five. I requested that Mr Cave contact our office urgently to provide his instructions in relation to the offer.
12. On 7 October 2010, Mr Cave contacted my office and instructed that he wished to finalise the matter in accordance with Ms Smith’s proposed resolution.
13. On 11 October 2010, I attended at the District Court where I had a meeting with Mr James Stewart, barrister. Mr Stewart advised he was prepared to act as counsel for Mr Cave. I provided Mr Stewart with a copy of the District Court information indicating the charges which were to be withdrawn and the charges in respect of which Mr Cave would enter pleas of guilty. Mr Stewart also advised he was prepared to act as counsel for Mr Cave in relation to allegations of sexual misconduct with children in the 1990’s. The 1990’s matters are the subject of legal professional privilege.
14. I was later advised by Mr Stewart that the 1980’s matter was listed for sentencing submissions to take place in the District Court before His Honour Judge Stretton on 23 February 2011. I arranged for a psychologist, Mr Allan Fugler to attend upon Mr Cave with a view to preparing a detailed psychological report.
15. On 22 February 2011, I received via email a copy of the report of Mr Allan Fugler, psychologist, dated 21 February 2011. I immediately faxed a copy of the report to Mr Stewart.
16. On 23 February 2011, I received a telephone call from Mr Stewart advising that there were some issues concerning Mr Cave’s instructions relating to the complainant (C1). At about 11.30am that day I attended the District Court cells where I spoke to Mr Cave. Mr Cave instructed that he wished to make an application to withdraw the plea of guilty to count one relating to the complainant (C1). Mr Cave instructed that he was now thinking more clearly than when he entered the plea of guilty and that he could no longer maintain that plea of guilty relating to the complainant (C1). I advised Mr Cave that in those circumstances it would be appropriate that he instruct new solicitors and counsel. My instructions were then terminated.
Ms Griffith for the DPP sought to cross-examine the accused on his affidavit. By consent Mr Twiggs, counsel for the accused, called the accused who was sworn and gave evidence.
The accused gave evidence that the contents of his affidavit were true. The accused said he had pleaded guilty to a series of earlier offences between 1971 and 1976 before Judge Soulio of this Court, and had on other occasions pleaded guilty to other offences, so he was familiar with the procedure and knew that when he pled guilty he was actually admitting the offence.
The accused was taken through Mr Love’s affidavit and did not disagree with Mr Love’s accounts of their conversations, including that he had been read the charges and the evidence in support of them in relation to C1. He said he had told his solicitor that he knew C1 but had denied the offending to his solicitor. He didn’t disagree that he had denied knowing the other two complainants at all. The accused was also asked and agreed that his solicitor showed him the declarations in the cells at the Adelaide Magistrate’s Court and that it was more than likely that he had a conversation with his solicitor about the details contained in the declarations at that time.
He agreed that he instructed his solicitor that he had changed his mind and did not wish to proceed to trial in the District Court, instructing his solicitor to obtain the best plea bargain possible, as it was a waste of time and futile to try and defend the charges. He said that when he got the letter from his lawyer that some charges were going to be withdrawn and he would plead to others, it did not make any difference to him which of the charges were going to be withdrawn and so long as some were going to be dropped, he intended to plead guilty to the others.
The accused agreed he knew he would be admitting the offences he would plead guilty to. He agreed with the transcript of the proceedings on 11 October 2010, that he pled guilty in relation to count one concerning C1, and that he was asked by the clerk of arraigns specifically whether he admitted the particulars in paragraphs ‘a’ through to ‘o’ on the information concerning that charge. He said “I know that I pleaded guilty to it. My intention was to get it over and done with, that’s it”.
I set out some of his evidence at page 19 of the transcript;
AI know that I pleaded guilty to it. My intention was to get it over and done with, that’s it.
QYou knew that when you pleaded guilty to it the court would take that as an admission to the crime and would sentence you to most likely a term of imprisonment for the crime.
AI understand that.
QSo when did you change your mind about pleading guilty.
AWhen I got back to the jail, I changed my mind.
QAre you saying you changed your mind when you got back to the jail that day 11 October.
ANot specifically that day.
QHow long after that day.
AI couldn’t tell you, probably a day or two. Time to think, time to reflect on it.
The accused was then asked, if that was the case why nothing was said when the matter came back to court on 5 November 2010. The accused responded that he still needed to think what he should do. He agreed the matter again came back on 20 December 2010, and that C1 read his victim impact statement on that day. He agreed that he listened to C1 read his victim impact statement out, and that he also didn’t say anything on that occasion about wanting to change his plea. He agreed he had a daily opportunity to ring and discuss the matter with his lawyer. Then he said; [4]
[4] Transcript p.21.
QAccording to you, you had been thinking about this since shortly after 11 October 2010, correct.
AI don’t know. The turning point came that particular day you just mentioned, the last date you mentioned.
QNow is it the case that you listened to (C1) read his victim impact statement and realised just how serious the charges were that you pleaded guilty to.
AI did listen to it and it wasn’t the seriousness of the charges I pleaded to, it was what I pleaded to, the content.
QI think later on you spoke to Mr Fugler, the psychologist, and told him that you didn’t want to admit.
AThat’s right.
QThose things with (C1) didn’t happen.
AThat’s right.
QIt was your intention when you pleaded guilty to the charge involving (C1) to do so because you thought or you were doing it because you were getting a good deal from the prosecution, correct.
AAnd for expediency, yes.
QSo it was for expediency, and you knew that when you said the words ‘guilty’ to the charge you were admitting the truth of the charge.
AI understood that.
Then the accused gave the following evidence[5];
[5] Transcript p.22.
QWhat was it about the victim impact statement that made you change your view about whether you should plead guilty.
AIt was the content of it.
QWhat was it about the content of it.
AIt just - it just wasn’t right, wasn’t true.
QWere there particular things that weren’t true that stick in your mind.
A90% of it, maybe more, I just couldn’t believe it.
QWhere there any parts of it that were true.
AI can’t remember now the exact content of it, but the whole thing was just unreal, it just wasn’t right.
QI have here the victim impact statement that was read. There is nothing in that about the particulars of the crimes.
ANo, just the whole thing, when it was previously read out to me and everything else, I just didn’t believe that (C1) would have said anything like that. That whole concept of that day leading up to that situation.
QI’m just having difficulty understanding why you say it would be untruthfulness of the allegations that hit you when looking at the victim impact statement. There is almost nothing in there as to the detail of the offending, rather there is just a lot in there about how (C1) says it affected him and his family.
ARight.
QSo why is it that that changed your view.
The accused went on to say, essentially, that the victim impact statement made it sound like he had only known C1 for a shorter time when in fact it was a 14 year relationship. The accused said that, in effect, C1 put all the negatives about their relationship in and none of the positive things he had done for C1.
The accused was asked to read the victim impact statement again; [6]
QI pass you the victim impact statement now and you tell me anything in there that you say is untrue. Take your time to read it. Have you had an opportunity to read that now.
AYes. I don’t disagree with any of the effects I had on him, one I do disagree with there is he could have expounded that his brother (person named) doesn’t speak to him. Well I know that’s untrue for a start because some time, I would say 2000 and I cant remember the exact date I had work carried out at a car yard and they were both there doing it in the early 2000’s and I do know that they were quite good friends at the time.
QAnything else.
ANo. As I said I don’t doubt the effects that he is talking about, I don’t doubt any of that, I’m not qualified to even go there.
[6] Transcript p. 23-24.
This evidence was somewhat puzzling. The accused had denied the offending yet said that he did not doubt that he had had all of the effects on C1 that C1 had mentioned. The accused went on to reiterate that nothing at all happened between them. The accused went on to list a number of positive things he said he did for the first complainant[7].
[7] Transcript p. 25.
The accused said that from his contact with C1 over the years, he did not see or hear or observe anything that would explain the very serious and extensive allegations that C1 had made about him, and that the allegations were a complete surprise to him[8].
[8] Transcript p. 25-26.
The accused was asked again by counsel for the DPP why he had sought to change his plea. At page 27-8 he said;
QYou feel that in his victim impact statement (C1) didn’t do the right thing by you and give you any credit for the good things that you have done for him.
AYes, I am saying that, yes.
QThat’s why you changed your mind whether you were going to plead guilty.
AYes.
QBecause you thought that you had done the right thing by pleading guilty and you thought that he had done the wrong thing by not giving you credit for the good things.
AExactly.
The basis of the application
From the foregoing, it is plain that this application rests on an unusual foundation. It is clear from history of the matter that the accused was aware of the charges against him, the particulars of those charges and the evidence that supported them. Whilst he had initially maintained his innocence to all charges to his lawyers, sometime after he was committed for trial and a trial date was set in this court, he was convicted in the Magistrate’s Court of an indecent assault and came to the view that he would not be believed in the matter before this court, and that it would accordingly be futile to defend the matter. On that basis, the accused instructed his lawyers to do the best “plea bargain” they could and he would in any event, therefore plead guilty.
Negotiations ensued between his lawyers and the DPP and as a result agreement was reached that several counts in the information would be withdrawn if he pled guilty to the remaining charges. Those negotiations were concluded shortly before his trial date. On the morning of trial he pled guilty to about half of the charges in the information. Counsel for the accused makes the point that most of the withdrawn counts were, in effect, alternate counts, such that it was not a particularly good deal.
Nonetheless, the deal was done. The accused was prepared to proceed on that basis and the alloctus was given, an antecedent report and other materials were tendered and victim impact statements read. Subsequent to hearing one of the victim impact statements, whilst his affidavit and initial evidence initially seemed to be to the effect that he was concerned that C1 was making allegations that he denied, when he gave evidence it ultimately became clear that the accused is primarily unhappy that C1 had not included what the accused regards as all the positive and good things that the accused did for C1 over their 14 year relationship, and it is primarily for that reason that the accused has decided to apply to withdraw his plea and plead not guilty.
Evidential background and current status of C1
C1 has provided declarations detailing extended contact with the accused over many years. C1 describes the accused performing what is now described as paedophile grooming behaviour, leading to a significant number of indecent assaults and various acts of unlawful sexual intercourse over many years at different places and times, with a degree of ostensibly credible detail.
Whilst the accused has made brief comments in his affidavit that he is not guilty of the offending and that in various respects he had little or no opportunity to commit the offences, he has admitted in evidence to a close 14 year relationship with C1. He knows of no reason why C1 would fabricate such events and allegations.
The court has now been informed that C1 died in mid March 2011. No evidence concerning the circumstances of his death was tendered. Accordingly, I am told if the accused withdraws his plea of guilty then the prosecution will be unable to proceed on counts one to seven in the information concerning C1 as he is, obviously, no longer alive to give evidence.
The principles governing whether a plea of guilty may be withdrawn
It is clear that the applicant bears the onus of establishing a miscarriage of justice. Further, in Liberti v R (1991) 55 A Crim R 120 Kirby P (as he then was) said;
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.
The fundamental principle is that a trial judge on hearing an application to withdraw a plea of guilty should be guided by similar considerations that an appellate court would apply in determining whether a miscarriage of justice would occur if such application were not allowed[9].
[9] R v Brooks (2006) 95 SASR 369 per Bleby, J at 382.
The categories of potential miscarriage of justice are of course never closed, and the authorities contain numerous examples of where appellate courts have pronounced whether or not a miscarriage of justice has been occasioned by a refusal to allow an accused to withdraw their plea of guilty[10].
[10] For example see R v Hura (2001) 121 A Crim R 472 per Spiegleman CJ at 478 et seq where many examples are given.
Many of the authorities simply address the facts pertinent to the case in question, determining whether or not in each case a miscarriage of justice has occurred.
Two themes emerge from a detailed review of the authorities.
Firstly, if the accused enters a plea of guilty on the basis of some mistake, misapprehension or misunderstanding of the nature of the charge to which the plea was entered, or on the basis that some improper or fraudulent inducement influenced him, then a miscarriage of justice would ordinarily be found[11].
[11] R v Ferrer-Esis (1991) 55 A Crim R 231 at 233, R v Symons (1988) 143 LSJS 463, R v Balogh (1977) 16 SASR 326, Rainbird v Samuels (1972) 4 SASR 187.
A second theme relates to whether the plea of guilty is attributable to a genuine consciousness of guilt and whether the plea amounted to an unequivocal admission of guilt[12].
[12] R v Murphy (1965) VR 187 at 191, Maxwell v The Queen (1996) 184 CLR 501 at 511, R v Davies (1993) 19 MVR 481, R v Boag (1994) 73 A Crim R 35.
Most of the authorities pertinent to this second theme don’t contemplate the possibility of the specific situation here, where an accused person makes a conscious choice to plead guilty to an offence which he says he is innocent of, to resolve the matter in an expedient way, secure the withdrawal of some counts in the information, avoid a trial which he is certain he will lose, and no doubt obtain the credit which the law recognises he will be entitled to for his plea of guilty. Whilst some of the authorities appear not to contemplate the possibility that a person protesting their innocence would plead guilty, no authority to which I have been referred indicates that an accused person is prohibited from entering a plea of guilty in such circumstances.

Although the case did not deal with an application to withdraw a plea of guilty, in Meissner v The Queen (1985) 184 CLR 132 the High Court discussed the nature of a plea of guilty and a person’s right to enter such a plea, in the context of whether an appellant could be convicted of attempting to pervert the course of justice by inducing someone to plead guilty. At Page 141 Brennan, Toohey and McHugh JJ said;
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty …….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.
At page 157 Dawson J expounded the rationale for that;
It is true that a person may plead guilty upon grounds that 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 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 improper inducement or by fraud.
These principles were cited with approval by the Court of Criminal Appeal in the cases of R v Pugh (2005) 158 A Crim R 302 and R v Brooks [2007] SASC 35.
Where in the highly unusual circumstances of this case an applicant claims they are not guilty but admits they made a fully conscious decision to plead guilty for reasons of expedience and convenience, notwithstanding that they claim innocence, defining what constitutes a miscarriage of justice is somewhat of a fine exercise.
On the one hand, fundamental to the system of criminal justice is the principal that the innocent are not to be convicted, and that those who assert their innocence are entitled to have their guilt or innocence determined in a trial conducted according to law. On the other hand, it is plain that the law recognises the inalienable right of an accused to determine their own plea, whether that be guilty or not guilty. Both these principles are important.
Further, the law recognises that certainty and finality in litigation is important for all manner of reasons. It assists in achieving timely justice, avoiding incessant delays that might otherwise occur if people are allowed to change their pleas at will, it provides finality and closure for the other stakeholders, in this case the Crown and in particular the alleged victim.
In the final analysis, where an accused claims innocence but decides to admit the offence and plead guilty, whether there is a miscarriage of justice is to be determined by asking two questions. Firstly, was that decision and plea improperly induced in any way, whether by the Crown, an accused’s own lawyers, or a third party, or was it made under a misapprehension as to what was being admitted or what was occurring? If so, there will be a potential miscarriage of justice. And secondly, the question is whether the accused made a fully informed decision to plead guilty appreciating what they were doing, what they were admitting and what the consequences were. If not, again, there will be a potential miscarriage of justice.
On the material before me the accused was not in any way improperly induced to plead guilty, and was fully informed and aware of what he was doing and the consequences, when he did plead. He has simply become annoyed that the victim concerned did not include positives about his relationship with the victim in the victim impact statement.
In these circumstances, it is unlikely that it could ever be appropriate to characterise a plea as amounting to a miscarriage of justice, such as to allow the plea of guilty to be withdrawn. However, if a residual discretion is available to a court to permit the withdrawal of a plea in circumstances where there has been a fully informed decision of a person who asserts their innocence to plead guilty, in the absence of any of the criteria identified by the authorities that would traditionally justify the avoidance of a plea such as, pressure, misrepresentation, mistake and the like, that discretion would have to be exercised where, notwithstanding the above, for some other reason there has been a miscarriage of justice.
Even if there is such a residual discretion, which is theoretically possible in that the categories of potential miscarriage of justice can never be comprehensively predicted and limited, in my view it has not been satisfied in this case.
Mere annoyance at the failure of a victim to be sufficiently positive about the other aspects of their relationship, or the objective failure of the victim to express such views in the victim impact statement, is insufficient, certainly in this case and probably in any case, to found a miscarriage of justice. It may be that in an extreme case, say where a complainant induced an accused to plead guilty by promises of support and the provision of mitigating material to the sentencing judge which the complainant then failed to deliver, such that a person asserting their innocence was induced to plead by empty promises despite their asserted innocence, it might be possible to characterise a subsequent failure to provide such support in all the circumstances as ultimately occasioning a miscarriage of justice. It is not necessary to finally determine whether such circumstances might amount to a miscarriage of justice, as that is not this case.
There is no obligation on a victim to include unrelated “positives” in a victim impact statement. Those positives which the accused believes were omitted can be fully supplemented during the course of the plea by counsel’s submissions. The accused can instruct his counsel as to all or any positives he believes have been omitted by the complainant, and they can be relayed by counsel to the court in submissions.
Accordingly, if there are matters which the accused is concerned were omitted, they can easily be placed before the court. In those circumstances I find there is no miscarriage of justice, even in the sense asserted by the accused. That is particularly so in this case, where the accused accepts that C1 indeed suffered all the effects that C1 records in his victim impact statement.
Conclusion
Accordingly, the application is refused and the accused’s plea of guilty to count one in the information will stand.