R v Clothier - [2015] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOTHIER
[2015] SADC 136
Reasons for Decision of The Honourable Justice Lovell
13 October 2015
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Application to withdraw plea of guilty.
Controlled Substances Act 1984 (SA) ss 4(1), 4(4), 4(5), 4(6), 33(3), referred to.
R v Pugh [2005] SASC 427, applied.
R v Clayton (1984) 35 SASR 232; Meissner v The Queen (1995) 184 CLR 132; R v Sagiv (1986) 22 A Crim R 73, discussed.
R v Liberti (1991) 55 A Crim R 120, considered.

R v CLOTHIER
[2015] SADC 136
Overview

Mr Clothier pleaded guilty to one count of manufacturing a controlled drug for sale, namely methylamphetamine, contrary to section 33(3) of the Controlled Substances Act 1984 (SA).
Mr Clothier has applied to set aside the plea on the ground that the guilty plea was unsound in all the circumstances and that a miscarriage of justice would occur if the application were not granted.
Background
On 28 March 2014, police attended Mr Clothier’s premises after receiving information that drug manufacturing had been occurring at the address. During the search, police seized several items which were sent for forensic analysis. Some of the items returned traces of chemical substances associated with the extraction of methylamphetamine from pseudoephedrine.
On the same date, Mr Clothier and his co-offender at the time, Ms Walker were arrested for the offence of manufacturing a controlled drug for sale; namely methylamphetamine.
On 10 July 2014, the matter proceeded by way of no case submissions in the Magistrates Court sitting at Adelaide. On 31 July 2014, the learned Magistrate found that there was a case to answer. Mr Clothier pleaded not guilty and was committed for trial to the District Court.
On 13 October 2014, Mr Clothier pleaded guilty before me sitting in the District Court jurisdiction to the charge. The allocutus was delivered and the Court embarked upon the sentencing process. The matter was adjourned to 25 November 2014 for submissions.
On 27 October 2014, a nolle prosequi was entered as to the charge against the co-accused Ms Walker.
On 2 February 2015, Mr Mancini, now counsel for Mr Clothier, indicated that an application was to be made for him to change his plea. The application to change the plea was made on 25 March 2015.
Affidavit evidence
Mr Clothier, in his affidavit, outlined briefly his discussions with Ms Matson. Mr Clothier stated that Ms Matson “convinced” him that he “had no chance of defending the charge”. He says he was told that he should take the “deal” to get the charge withdrawn from his girlfriend and co-offender, Ms Walker and also to gain the 30 per cent discount on penalty.
Mr Clothier said that his personal opinion was that the evidence did not establish that any manufacturing had taken place. However, he accepted the advice of Ms Matson and entered a plea of guilty on 13 October 2014.
Mr Clothier stated that his plea was not freely and voluntarily made. He pleaded guilty because he was “strongly advised” by Ms Matson and that he felt “pressured into taking her advice”.
However, Mr Clothier stated at paragraph 10:
... That pressure also included the offer that was made by the prosecution to drop the charge against Samantha Walker even though she had not had any involvement with any of the items or any offending whatsoever to do with manufacturing, selling or possessing methamphetamine.
(My underlining)
Mr Clothier also stated at paragraph 4:
The number one reason why I pleaded guilty to the charge was because the prosecution proposed that if I pleaded guilty they would drop the charge against my girlfriend, Samantha Walker ... I pleaded guilty for that reason ... I pleaded guilty so that the prosecution would drop the charge against her and not because I considered I was guilty.
(My underlining)
It is clear from the affidavit that Mr Clothier was concerned about his girlfriend being charged. Mr Clothier asserted that this was the most important factor in his decision to plead guilty to the charge. However, for reasons discussed later, I am not prepared to accept his assertion that his state of mind was such that he felt that he had no choice but to plead guilty to the charge.
Ms Matson, in her affidavit, indicated to Mr Clothier that although he may have an explanation that exculpates him of the charge; the case against him could be strong if the matter proceeded to trial. Ms Matson stated that she discussed the proposal made by the prosecutor about the charge being withdrawn from Ms Walker, as well as the advantages of pleading guilty in terms of receiving a discount in penalty.
She stated that at no stage did she pressure Mr Clothier to plead guilty. In her opinion, Mr Clothier was heavily influenced by the fact that his girlfriend would most likely have the charge withdrawn if he pleaded guilty. To her, the advice about discount in penalty appeared to “crystallise” his decision.
Ms Matson and Mr Clothier agreed in their affidavits that the advice was discussed just prior to the arraignment hearing conducted on 13 October 2014. Ms Matson noted that she went through the prosecution case in some detail. This is supported in the email from Ms Manuel dated 13 October 2014 to Ms Matson which was tendered on the application. Ms Matson said that;
After going through all the evidence prior to the arraignment hearing, he decided he’d plead guilty. The case against him was too strong and he’s unwilling to blame his girlfriend and I doubt he’d get away with that anyway. DPP are likely to withdraw the charge against her now that he has pleaded guilty.
Ms Matson further stated in her affidavit, that she advised Mr Clothier not to make a decision in haste, and that he may need time to consider his position and the offer made by the prosecution. This is consistent with submissions put forward on 13 October 2014 when I had the following exchange with Ms Matson on arraignment:
Ms Matson:I think I understand what’s going on in relation to the co-accused. Mr Clothier is pleading guilty. I understand there might be some scope for the matter to be withdrawn against the co-accused upon a guilty plea being entered by Mr Clothier.
...
Ms Fong:I don’t have those instructions.
...
Ms Matson:In relation to Mr Clothier, I would be asking that he at least be arraigned and the matter be listed for submissions.
His Honour: I’m happy to do that provided – I don’t know what’s going on with the negotiations. Do you want to defer the arraignment for a couple of weeks, do you?
Ms Matson:From Mr Clothier’s point of view, he wouldn’t like any further delays.
...
Ms Fong:I have a note on file which says we’re likely to accept the plea from Mr Clothier in full satisfaction but we will need some final instructions.
(My underlining)
It is noted that the prosecution entered a nolle prosequi on the information in relation to Ms Walker two weeks later, on 27 October 2014.
Of particular importance, in relation to this application, is that Ms Matson continued to act as counsel for Mr Clothier after his plea and appeared on a number of bail hearings. Mr Clothier also provided Ms Matson with instructions about his background and personal circumstances in furtherance of obtaining a psychological report for his manufacturing matter.[1] On 16 December 2014, Mr Clothier met with Dr White for a psychological assessment for the purpose of his sentence. This is all consistent with Mr Clothier persisting with his plea of guilty.
[1] As per the email from Ms Matson dated 26 November 2014 to Ms Manuel (P3); T 73 lines 9-12.
Oral evidence on the application
I do not intend to canvass the evidence given before me in any great detail. As this application progressed it became tolerably clear that there was not much dispute between Mr Clothier and Ms Matson. Indeed during the course of the hearing Mr Mancini specifically agreed that it was not suggested that Ms Matson, with her advice, pressured Mr Clothier. He accepted that Mr Clothier felt pressured rather than Ms Matson pressuring him.
Mr Clothier was not an impressive witness. Certain aspects of his evidence were disingenuous. In his affidavit and more clearly when he gave his evidence Mr Clothier made admissions that he attempted to manufacture methamphetamine at his premises. Given that particular admission, his explanations for his possession of some of the items found at the house were unimpressive to say the least. His reasons for having CCTV installed at his premises and his answers in relation to the “recipe” located by the police were disingenuous.
Unfortunately, Ms Matson did not have her file or notes that she made at the time with her when she gave her evidence. I have taken that factor into account. To date, her file cannot be located, although the general solicitor file was made available. Despite this disadvantage, Ms Matson was a far more impressive witness.
In some respects her evidence was confirmed by subsequent emails and correspondence. Where her evidence conflicts with that of Mr Clothier, I prefer her evidence.
Mr Clothier identified three reasons for his plea of guilty on the morning of 13 October 2014. I accept that all three reasons did, on this occasion, operate on his decision to plead guilty. They did not operate equally.
The first reason related to the Director of Public Prosecutions (“DPP”) offer to drop the charge against his girlfriend if he pleaded guilty to the charge. The second reason related to the advice he was given as to the discount available from sentence for an early plea of guilty. The third reason related to the advice given to him by Ms Matson about his chances of success on a plea of not guilty.
Exactly how the offer from the DPP came to be extracted was a matter of dispute. Mr Clothier gave evidence that it was Ms Matson who communicated that offer to him. Ms Matson, however, gave evidence that it was Mr Clothier who raised it initially and that she spoke to the prosecutor about it and got back to Mr Clothier. Given what Ms Matson said in the open hearing before me on 13 October 2014, and also given what she said in her email of 13 October 2014 (exhibit P1), I prefer her evidence. I think it unlikely that Ms Matson knew about any such proposal before arriving at court. Indeed she said in her evidence it was not of interest to her to have a charge against the co-accused dropped. That it may occur during the course of negotiations with the DPP can be accepted. However, on this occasion it is likely that it was Mr Clothier who raised the issue because of discussions that he had with his girlfriend. Alternatively the DPP may have raised it having had discussions with the co-accused’s legal representative.
In the end, not much turns on this point as the fact remains that the offer was discussed and Mr Clothier embraced the idea. It clearly had an influence on his decision to plead guilty that morning.
It was common ground that Mr Clothier and Ms Matson discussed the discount available to Mr Clothier for an early plea of guilty. Mr Clothier accepted that the discussion occurred and it influenced his decision although he said not to a great degree.
There was a dispute between Mr Clothier and Ms Matson as to how much time was spent discussing Mr Clothier’s prospect of successfully defending this charge. Mr Clothier said it was a very quick discussion; Ms Matson, while not putting a time period on it, said she took Mr Clothier through the declarations. Again I prefer the evidence of Ms Matson. Her evidence was supported by the email which was tendered as exhibit P1. I also accept Ms Matson’s evidence that she advised Mr Clothier that he would need to have an explanation for his possession of the various items located by the police. I accept her evidence that she kept an open mind on whether or not Mr Clothier would be successful in his defence. I find that she did not give advice that he should plead guilty but rather gave more general advice pointing out the strengths and weaknesses of the evidence. It may be that Mr Clothier interpreted her advice as encouraging a guilty plea. Given the strength of the prosecution case some counsel may have given even stronger advice.
Of the factors operating on Mr Clothier at the relevant time the discussion he had with Ms Matson about the evidence was the most minor of the three.
In my view, the DPP case on the question of the manufacture of methylamphetamine was strong. The evidence relating to commerciality was perhaps weaker, but of course the DPP were going to lead evidence relating to his other trafficking charge to assist in proving that element.
What is also important in this case is what occurred after the plea of guilty was entered. Mr Clothier maintained his not guilty plea to the earlier trafficking charge. He clearly gave instructions to Ms Matson regarding his personal circumstances and this information was used to obtain legal aid funding for a psychological report. Mr Clothier saw Dr White who provided a background report for the purpose of sentencing. This occurred in November and December 2014. At that stage, there was no suggestion by Mr Clothier that he was unhappy with his plea of guilty. The matter came on before me on 25 November 2014 and was adjourned awaiting funding for a psychological report. On 2 February 2015 Mr Mancini appeared before me on behalf of Mr Clothier. He advised me that he had only been recently instructed and he made an application on behalf of Mr Clothier to vacate the guilty plea.
Relevant legal principles
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.[2] A plea of guilty is an admission by the accused of all of the elements of the offence.
[2] 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.[3]
[3] R v Liberti (1991) 55 A Crim R 120; R v Sagiv (1986) 22 A Crim R 73 at 80.
A miscarriage of justice can take many forms.[4]
[4] 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.[5]
[5] 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.[6]
[6] 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:[7]
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.
[7] [2005] SASC 427 [51]-[52].
Findings
I find that on the morning of 13 October 2014 Ms Matson consulted with Mr Clothier in the cells before the arraignment. Prior to this meeting she thought he would be pleading not guilty. Mr Clothier was aware that the prosecution may drop and indeed were likely to drop the charge against his girlfriend if he pleaded guilty. Mr Mancini suggested that this was in some way an improper inducement made by the prosecution. I do not agree that there was anything improper about discussions between the prosecution and Ms Matson about that topic.
Mr Clothier wanted the charge against his girlfriend dropped and so he spoke to Ms Matson about his chances of success if a not guilty plea was maintained and what discount he should expect to receive if a guilty plea was entered. That was a perfectly rational approach by Mr Clothier. I prefer Ms Matson’s evidence about what occurred in relation to the discussions about the strength of the prosecution case. I find that she did not strongly advise him to plead guilty but took him through the declarations and discussed with him the case against him. She correctly advised him about the discount available.
Whilst it might be that the tenor of Ms Matson’s advice was that a guilty plea was prudent I find she did not pressure Mr Clothier to plead guilty. On the contrary it is clear from Mr Clothier’s own evidence that he was thinking clearly and asking appropriate questions. There was no mistake in the advice given by Ms Matson in this matter.
Mr Mancini submitted that the plea is unsound because it was not made as a consciousness of guilt. I accept that an important, although not critical consideration is whether the plea was attributable to a consciousness of guilt.[8] However, this is not the only factor to be taken into account. Mr Clothier was given adequate advice by competent counsel. The advice could not be categorised as erroneous or improper. There is no suggestion that Mr Clothier’s will was overborne by the advice given.
[8] R v Pugh [2005] SASC 427 [201].
Further, he made admissions on this application, contrary to his initial stance that he had attempted to manufacture the drug. He said it was unsuccessful.
Mr Clothier was capable of maintaining his not guilty plea in relation to the trafficking charge, which occurred prior to the manufacturing charge.
It is clear that he was influenced by the fact that the charge would be withdrawn from his girlfriend as well as the relevant discount in penalty that might be secured from pleading guilty at an early stage. He decided to plead guilty weighing up these factors against his prospects of success if the matter proceeded to a trial. The prosecution case was reasonably strong. There is no evidence that Mr Clothier did not understand the nature of the charge against him.
The plea of guilty in this matter was entered in open court by Mr Clothier having discussed the relevant matters with his counsel. The plea was entered after legal advice. He understood what he was doing when he pleaded guilty. He would get the appropriate discount on the plea, the charges were likely to be dropped against his girlfriend and his chances of success on a not guilty plea had been discussed with him. In those circumstances he made a free and voluntary choice to plead guilty. He exercised a free choice after having accepted the benefits of pleading guilty.

Mr Clothier did not change his mind immediately. He allowed some months to pass before seeking alternative advice. Instructions were taken by Ms Matson in anticipation of submissions in mitigation of penalty. In that time the charge against his girlfriend was dropped.
I am unable to find in those circumstances that to allow the plea to stand would result in a miscarriage of justice.
Conclusion
In all the circumstances, I find that the plea of guilty was entered by Mr Clothier in the exercise of a free and voluntary choice.
I am not satisfied that should the plea stand, a miscarriage of justice would occur. I would therefore dismiss the application.