R v Fairclough
[2019] ACTSC 215
•19 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fairclough |
Citation: | [2019] ACTSC 215 |
Hearing Date: | 20 May 2019 |
DecisionDate: | 19 August 2019 |
Before: | Burns J |
Decision: | See [52] |
Catchwords: | CRIMINAL LAW – Application to withdraw plea of guilty – whether the plea demonstrated a consciousness of guilt – whether the applicant had a sufficient knowledge of the relevant facts and law – consideration of Gee v Hulbert & Ors [2002] ACTSC 118 |
Legislation Cited: | Bail Act 1992 (ACT) s 49 Drug Misuse and Trafficking Act 1985 (NSW) |
Cases Cited: | Carey v The Queen (1990) 20 NSWLR 292 Caruso v The Queen (1988) 49 SASR 465 Toro-Martinez v The Queen [2000] NSWCCA 216; 114 A Crim R 533 |
Parties: | The Queen (Crown/Respondent) Christian Fairclough (Accused/Applicant) |
Representation: | Counsel A Williamson (Crown/Respondent) J Masters (Accused/Applicant) |
| Solicitors ACT Director of Public Prosecutions (Crown/Respondent) Marjason & Marjason Solicitors (Accused/Applicant) | |
File Number: | SCC 91 of 2016 |
BURNS J:
On 3 May 2016 the applicant was committed for trial on three charges. On 2 June 2016 the Crown lodged an indictment dated 1 June 2016 containing two counts:
Count 1: That on 12 February 2016 he intentionally inflicted grievous bodily harm on Samuel Clements.
Count 2: That on 12 February 2016 he intentionally and unlawfully used against Samuel Clements an offensive weapon likely to endanger human life or cause a person grievous bodily harm, namely a knife.
The applicant was initially scheduled to stand trial in the week commencing 20 March 2017, however the matter was not reached and was adjourned for the trial to commence at a later date. Subsequently, a trial date of 17 July 2017 was fixed. This date was later varied to 18 July 2017. On 18 July 2017 the applicant appeared, represented by counsel, before Murrell CJ. The applicant entered a plea of guilty to Count 2 on the indictment of 1 June 2016, and this plea was accepted by the Crown in full satisfaction of the indictment. Her Honour listed the matter for sentence before Elkaim J on 15 September 2017 and released the applicant on bail.
On 11 September 2017 the applicant’s lawyers sought leave to withdraw from the proceeding, as the applicant had been arrested and remanded in custody in Victoria. The sentence hearing date of 15 September 2017 was vacated, and the matter was adjourned to 23 October 2017 for mention. On that date leave was granted to the Crown to issue a warrant for the arrest of the applicant pursuant to s 49 of the Bail Act 1992 (ACT).
The next date that the proceeding was before the Court was 11 December 2018. The applicant was in custody, and was represented by a lawyer. A fresh sentence date of 8 February 2019 before Elkaim J was fixed. On 30 January 2019 the matter was relisted before Elkaim J. Prior to that date, on 25 January 2019, the applicant’s lawyer filed a notice that he was no longer acting for the applicant, and on 30 January 2019 the applicant appeared before Elkaim J unrepresented. He informed his Honour that he wanted to withdraw his plea of guilty, and was in the process of seeking a new lawyer. The sentence date of 8 February 2019 was vacated, but it remained listed on that date for further directions. On 8 February 2019 the applicant again appeared before Elkaim J, on this occasion represented by a solicitor, Mr H Marjason. His Honour directed that any application on behalf of the applicant to withdraw his plea of guilty was to be filed and served by 7 March 2019.
The application to withdraw the plea of guilty
On 14 March 2019 the applicant’s lawyers filed an application in proceeding seeking an order that he be granted leave to withdraw his plea of guilty, to enter pleas of not guilty to all charges, and for the charges to be listed for trial. The grounds on which he seeks those orders, as set out in the application are:
1.The [applicant] was not fit to plead at the time in [sic] which he did.
2.The [applicant] had always intended to plead not guilty and initially entered not guilty pleas to the charges.
3.The [applicant] felt he was pressured into entering the pleas [sic] of guilty.
4.It was not until the day of the trial that he was asked and entered a plea of guilty contrary to what he initially instructed on legal advice.
5.The [applicant] has a strong defence to the charges.
6.If the Court finds against the [applicant], in relation to withdrawing his guilty pleas [sic], it will result in a miscarriage of justice.
7.The [applicant] did not have a genuine consciousness of guilt when the plea was entered and never has.
The application is supported by an affidavit of Mr Marjason, sworn 8 March 2019. The affidavit is relatively short, and I will set out the salient paragraphs:
Background of Instructions
2. I received a telephone call from Christian Fairclough’s father, Linden Fairclough (‘Linden’), in or around late December 2018. Linden provided me with a background of Christian’s matter.
3. Christian was committed for trial on 9 May 2016 on the following charges:
a) Intentionally inflict grievous bodily harm;
b) Use of offensive weapon likely to endanger human life or cause a person grievous bodily harm;
c) Intentionally wound.
4. On 1 February 2019, I sent an email to the ODPP advising them I had taken instructions from Christian and requested, inter alia, they provided me with a copy of the statement of facts and Christian has instructed that he wants to withdraw his pleas of guilty in relation to all charges against him.
5. On 7 February 2019, I met with Christian at the AMC prison. He signed an authority to release his file from Mr Paul Edmonds, solicitor. He notified me that he had contacted Mr Edmonds and advised that he had ceased his retainer with Mr Edmonds.
6. On 8 February 2019, I appeared before Elkaim J. I advised the court that I had now been instructed and foreshadowed that an application to withdraw Christian’s plea of guilty will be made. The matter was adjourned and put into the Registrars list on 14 March 2019 in order to seek a hearing date of the application.
Pleas of Guilty
7. Christian advised me that he originally entered not guilty pleas and maintained those pleas up until the morning of the trial. On the morning of the trial, through his solicitor and Counsel, he entered guilty pleas.
8. At the time the pleas were entered, Christian has instructed me that he was suffering from multiple mental health issues and he was not fit to plead.
9. I am instructed that Christian always wanted to maintain his pleas of not guilty but felt pressured and changed his plea.
Progressing the matter
10. I have since been served with a brief of evidence in the matter and I have briefed Counsel.
11. Upon having a conference with Christian, I have formed the opinion that Christian has a defence of self-defence to charges. His version of the facts are that he was set upon when he arrived at premises for a drug transaction and his life was threatened. He reacted to the threat in self defence and it was that reaction which the Crown relies upon for the offence.
12. Christian has expressed to me that at no point were the guilty pleas attributable to any genuine consciousness of guilt and maintains his innocence.
13. Christian would like to vigorously defend all charges.
Leaving aside, for one moment, the adequacy of the contents of this affidavit, the consistent reference to the applicant by his first name is to be deprecated. Affidavits filed in this Court, particularly in criminal proceedings, should be formal documents, befitting the solemn and formal nature of the proceeding. Reference to a client by their first name will rarely be appropriate.
The Evidence
The apparent inadequacy of the affidavit sworn by Mr Marjason was cured by the applicant giving evidence at the hearing of the application. In his evidence, he described the events which formed the basis of the charge against him in terms which clearly suggested that he acted in self-defence at the time that he stabbed the complainant. His evidence was generally consistent with his description of events given to police in a recorded interview on 12 February 2016. The applicant gave evidence that he was initially represented by a legal practitioner, but he “wasn’t happy with some things that had happened”, and so he spoke to a solicitor in Adelaide who told him to dispense with the services of his legal practitioner. The applicant later identified this solicitor in Adelaide as George Mancini, a lawyer who has subsequently had his name removed from the roll of legal practitioners. Unsurprisingly, Mr Mancini was not called by the applicant to give evidence.
The applicant said that Mr Mancini was to represent him at his trial, but had not had an opportunity to properly prepare the matter. In part, the applicant said, this was because he, the applicant, was unwell at that time, had been seeing a psychologist or psychiatrist and had been admitted to a hospital psychiatric ward. The applicant adduced no evidence in support of these assertions.
The applicant stated that Mr Mancini wrote to the Court seeking an adjournment of the trial, explaining that he had only just been instructed and that the applicant was unwell. The applicant said this was refused, so that he urgently travelled to Canberra and appeared before a judge to explain the problems he had with his previous lawyer and his health problems. He said that the judge he appeared before told him that he would have to represent himself. The Court’s record shows that on 13 July 2017 the applicant appeared unrepresented before Murrell CJ, effectively seeking to vacate the trial date. He referred to problems with his previous lawyers, mental health issues, and his “grave financial situation.” The Court’s record shows that her Honour then read to the applicant part of an affidavit filed by the applicant’s former lawyers as part of their application to withdraw as the lawyers on the record, including correspondence on 8 May (presumably 2017) in which the applicant had withdrawn his instructions, and correspondence on 21 June in which the former lawyer advised the applicant that the grant of legal aid had been terminated. The trial date of Monday, 17 July 2017 was confirmed.
The applicant testified that he then engaged another lawyer, who in turn briefed counsel, Ms T Warrick. The Court’s record reveals that on 14 July 2017 a lawyer, Mr P Edmonds, appeared for the applicant before Murrell CJ. He told her Honour that late on 13 July 2017 he had received a grant of legal aid to appear for the applicant. Her Honour pushed back the date for commencement of the trial to 18 July 2017.
The applicant said that after he was granted legal aid “[i]t took me two or three days to scrape together what paperwork I could”, and then he had a meeting with Ms Warrick. The applicant said that at the time of that first meeting with Ms Warrick, she did not have all of the brief of evidence. He told Ms Warrick that “what happened was extremely unfair and that I wanted to fight it all the way.” He told Ms Warrick that he wanted to plead not guilty.
Ms Warrick, according to the applicant, told him that she could not win the case. She said “[l]ook, I’ve looked through it and I just - I’m telling you straight out I can’t win.” The applicant said to her “[l]ook, I don’t agree with you. My Adelaide lawyer doesn’t think that either. I’ve had a few other lawyers look at it.” The applicant said that Ms Warrick repeated her belief that she could not win. Ms Warrick told him that the victim had sustained too many stab wounds, and that a jury would likely find that he had acted in excess of what was required for self-defence. The applicant testified that he did not feel confident with Ms Warrick. They then telephoned the applicant’s father and Mr Mancini in Adelaide, and Ms Warrick repeated her advice to them. The applicant said that he then spoke privately to his father and to Mr Mancini; Mr Mancini said that the applicant would not be allowed to leave Canberra before the trial, and gave him advice:
What we’re going to have to do is – they’re just not going to let you out of it… It’s not fair, but you’re going to have to put in a guilty plea and then we’ll withdraw it as soon as you get back here because they’re going to give you time to – for sentencing.
The applicant testified that he “had bad PTSD” and was “hurt, angry, confused [and] distressed.” He believed he had no choice but to do as Mr Mancini suggested. The applicant maintained that he had acted in self-defence when he stabbed the complainant.
In cross-examination, the applicant agreed that he had seen Ms Warrick on three occasions before he entered his pleas of guilty, but said “we didn’t have a proper talk until the end.” He agreed that he told Ms Warrick “everything that happened,” and that she had given him advice. He agreed that he had told police that after the stabbing, the complainant had chased him from the unit to his car, and was banging on the window of the car with a knife as the applicant drove off. He denied that Ms Warrick had told him that forensic evidence showed a heavy blood trail from the point where the complainant was stabbed to the point where he collapsed, but no blood trail leading to where the applicant had parked his car.
It was put to the applicant that Ms Warrick suggested that he think it over during the weekend, but the applicant denied this, saying that Ms Warrick “didn’t have all the evidence” at that time. In a further conference on Monday 17 July 2017, Ms Warrick repeated her advice that he had stabbed the complainant too many times, and repeated her opinion that she could not win the case. The applicant said he told Ms Warrick that he disagreed, as did Mr Mancini. The applicant said that it was after this meeting that he had the telephone conversation with Mr Mancini about pleading guilty: see [13] above.
In cross-examination, the applicant agreed that at the time he pleaded guilty he knew the nature of the charge against him, and he was aware of the Crown allegations (although he did not agree with them).
The respondent called Ms Warrick to give evidence on the application. Ms Warrick practises as a barrister in the ACT and is also a part-time member of the ACT Civil and Administrative Tribunal. Her recollection of detail concerning her interactions with the applicant was hampered by the fact that she no longer had her notes of her conferences with him, but she was nevertheless able to recall some significant matters. Ms Warrick said that she met with the applicant on the afternoon of Friday 14 July 2017, and Monday 17 July 2017, as well as the morning of 18 July 2017. The conference on the Friday extended over approximately four hours. Ms Warrick had most of the brief of evidence, but was missing the transcript of the police interview which she did not receive until the following Monday. She believed that most of the conference was taken up by the applicant telling her his version of events. She agreed that she gave the applicant frank advice that a jury might find that his actions were “not proportionate” and that he had acted in excess of what would be permissible self-defence. She also discussed with him problems where his version of events differed from the Crown case, including the lack of forensic evidence to support the applicant’s assertion that the complainant had chased him from the unit with a knife after the stabbing. Notwithstanding these matters, Ms Warrick said that the applicant instructed her that he wanted to defend the charges. When asked what she said to the applicant regarding her willingness to act on his instructions, Ms Warrick replied:
---That’s my job. What I usually say to clients is that that’s how I make money and if we were going to run that trial, obviously I will make more money than if I’m just at arraignment. So I probably would have said something along those lines to him that that’s how I make my money, but having said that to him, in my opinion, he was likely to lose, which I certainly did say to him, he said he wanted to run the trial and I said, ‘I act on instructions and we’ll run the trial.’
Ms Warrick said that she spent the weekend preparing for the trial. She had a further conference with the applicant on Monday, 17 July 2017. When he arrived at the conference the applicant still wanted to plead not guilty. Ms Warrick said that the applicant wanted her to speak to a friend of his, a lawyer named George. There can be no doubt that this was Mr Mancini. They called Mr Mancini and she repeated her advice to him. She recalled that Mr Mancini was not a specialist criminal lawyer “but that he didn’t see any problem with the logic of my advice and that… perhaps Mr Fairclough needed to listen to my advice”. Ms Warrick recalled that they then rang the applicant’s father, and she told him of her advice and her reasons for giving the advice. The applicant’s father said that he thought that what the applicant had done was reasonable and proportionate, and that is what he (the father) would have done in the circumstances.
Ms Warrick said that the conference on the Monday went for at least a couple of hours. During the conference, and after the applicant had spoken to Mr Mancini and his father, the applicant instructed Ms Warrick that he now wanted to plead guilty. Ms Warrick testified that she was “a bit surprised” that the applicant had changed his mind, but “it was also the only sensible thing to do”. The applicant provided signed written instructions to enter a plea of guilty. Ms Warrick’s instructing solicitor negotiated an agreement whereby the Crown accepted the plea of guilty to the charge of intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm (Count 2), with the Crown not proceeding on Count 1. This was clearly to the applicant’s advantage, as the charge in Count 2 carried a maximum penalty of 10 years’ imprisonment, whereas the charge in Count 1 carried a maximum penalty of 25 years’ imprisonment. Ms Warrick believed that she explained this to the applicant, and advised him that there may be a discount on sentence available if he pleaded guilty. She advised the applicant that if the trial proceeded and he was convicted, he could expect a sentence of about four years’ imprisonment.
Ms Warrick produced the written instructions signed by the applicant. In those instructions he states that he pleads guilty to Count 2, he admits the prosecution facts, and he understands that he will receive a sentence of imprisonment.
In cross-examination, Ms Warrick stated that although she did not receive a copy of the applicant’s record of interview with police until Monday, 17 July 2017, the version of events he gave to her on Friday, 14 July 2017 was “fairly similar” to that he gave to police.
Ms Warrick testified that her advice to the applicant was not based solely on the number of stab wounds inflicted on the applicant. She said that it was also based on his description of the events and the actual blows. She agreed that they had discussed the number of blows he delivered, but the other part of the conversation was that the applicant had said words to the effect of “I wasn’t going to stop until he stopped moving”. This was not challenged by the applicant.
Ms Warrick said that she was not privy to the negotiations between the Crown and her instructing solicitor, but she understood that it was accepted that the applicant would plead guilty to Count 2 on the facts as the Crown had prepared them, but the applicant would be “permitted to put excessive self-defence as a submission on sentence”. She was unable to say whether the Crown accepted the proposition that the applicant had been acting in self-defence, albeit excessive, at the time he stabbed the complainant.
Ms Warrick explained that a mental health report had been requested after the applicant entered his plea of guilty because he had told her that he had PTSD as a result of being stabbed or assaulted in Adelaide, and that he suffered from anxiety and chronic fatigue. She agreed that the applicant appeared stressed on Friday, 14 July 2017 and Tuesday, 18 July 2017. She was unable to recall his presentation on Monday, 17 July 2017.
Consideration
The law regarding the circumstances in which an accused person should be permitted to withdraw a plea of guilty is well settled, albeit that it has been expressed slightly differently in some of the cases. In R v Gomez [2007] ACTCA 21; 1 ACTLR 145 (Gomez), this Court (Gray, Madgwick and Cowdroy JJ) set out the relevant principles, at [38]:
In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge. In Meissner v The Queen (1995) 184 CLR 132 at 157, Dawson J said:
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.
The Court went on to observe that some cases had suggested that a plea may be withdrawn where there is not a “consciousness of guilt”, but this “must be understood as meaning a voluntary and otherwise tolerable acceptance of guilt” (at [39]). The Court went on to say, at [43]:
It is generally understood that a plea of guilty is a serious matter that normally has consequences, sufficing to dispose of the question of guilt. When an accused person voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, it will be an unusual case in which a judge will consider permitting its withdrawal.
In his submissions, Mr Masters, who appeared for the applicant, drew my attention to the decision of Higgins J (as his Honour then was) in Gee v Hulbert & Ors [2002] ACTSC 118 (Gee), where his Honour, after referring to a number of previous decisions, said, at [37]:
Thus, the principle is clear. The appellant bears the onus of satisfying me that, if he is not permitted to change his pleas, a substantial miscarriage of justice will have occurred. If there is a real chance that the version of facts given by the prosecution is not genuinely accepted by the appellant and, further, that he has an arguable case to challenge that version so that, if the appellant’s version of the facts was accepted, he would be acquitted, then it would be a miscarriage of justice to deny him that chance.
On its face, this statement by Higgins J appears to suggest that the onus cast on an accused in an application to withdraw a plea of guilty may be satisfied by the accused establishing:
(a) that there is a real chance that the accused did not genuinely accept the prosecution statement of facts; and
(b) the accused asserts a version of the facts which, if believed, would result in his acquittal.
It may well be unnecessary for me to do more than observe that under the proposition as formulated by Higgins J, the applicant would not succeed on the present application. It cannot be said that on the version of events asserted by the applicant, he would be acquitted. The most that can be said is that there is a possibility that a jury may not convict him. On the information before me, it is difficult to describe this as a strong possibility.
I will, however, consider the authorities referred to by Higgins J to determine whether they support the formulation of the principle as enunciated by his Honour. The first case referred to was Liberti v The Queen (1991) 55 A Crim R 120 (Liberti). The accused, Liberti, was charged with two counts of supplying a prohibited drug. He was legally represented in the Local Court of New South Wales, entered pleas of guilty and was committed for sentence to the District Court of New South Wales. In the District Court, he adhered to his pleas of guilty, and he was sentenced to terms of imprisonment. Liberti initially sought leave to appeal those sentences, but subsequently raised in the Court of Criminal Appeal whether the facts as admitted by Liberti at the time of sentencing could sustain the convictions. In that regard, Liberti had consistently maintained that he was minding the drugs in question for a friend, and he intended to return them to that person. At the time that Liberti adhered to his pleas of guilty in the District Court, his lawyer was unaware of the then unreported decision of the New South Wales Court of Criminal Appeal in Carey v The Queen (1990) 20 NSWLR 292 (Carey), a decision handed down on 26 July 1990. The decision in Carey, put very briefly, stands for the proposition that the word “supply” in the relevant offence provisions of the Drug Misuse and Trafficking Act 1985 (NSW) did not encompass “the mere transfer of physical control of the drugs from a person who has had the drugs deposited with him to their owner or to the person reasonably believed to be such” (at 297).
The decision in Liberti turns upon the accused’s lawyer’s misunderstanding of the law, such that Liberti was never advised by his lawyer that if his version of events was accepted by the jury, he would be found not guilty of the charges. It appears likely that the sentencing judge was also unaware of the decision in Carey at the time the accused was sentenced.
The Court of Criminal Appeal in Liberti said with regard to its power to set aside a conviction following a plea of guilty (at 121-122):
This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears:
(a)that the appellant, did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or
(b)that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26.
This formulation of the test appears to have been taken from the judgment of Avory J in R v Forde [1923] 2 KB 400 at 403: see also R v Murphy [1965] VR 187 (Murphy).
It is instructive to consider the decision in Caruso v The Queen (1988) 49 SASR 465 (Caruso). The accused in Caruso pleaded guilty to a charge of aiding and abetting the cultivation of a large crop of cannabis. Caruso was sentenced on the basis of agreed facts contained in a letter written by his solicitor to the Crown Prosecutor. He was sentenced to a term of imprisonment. Later, he sought to appeal his conviction and sought to place before the Court of Criminal Appeal of South Australia a different version of the facts to those placed before the sentencing judge, in which Caruso asserted a much more limited role in the enterprise, which he argued would not be capable of supporting the charge. White J, with whom Legoe J agreed, considered that Caruso had been rightly convicted, even on his revised admissions. Von Doussa J accepted that the Full Court had power to set aside a conviction recorded on a plea of guilty, and (at 489):
A court will entertain an appeal against such a conviction if it appears (a) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (b) that upon the admitted facts that he could not in law have been convicted of the offence charged.
This passage from the judgment of von Doussa J is, of course, in identical terms to that found in Liberti: see [33] above.
In Liberti the appellant could not, as a matter of law, be convicted on the agreed facts, being that he was only minding the drugs with an intention of returning them to their true owner. He was not advised of that fact by his lawyers, who were unaware of the decision in Carey. The position was binary – if the jury accepted Liberti’s evidence, he was not guilty; if the jury did not accept his evidence, he was guilty. In Caruso, the Court of Appeal was not required to consider in depth the second limb of the test formulated by von Doussa J, as the Court was satisfied that the appellant could, as a matter of law, be convicted of the offence based upon his revised asserted facts.
The next decision referred to by Higgins J was R v Davies (1993) 19 MVR 481 (Davies), a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales (Wood, Mathews and Badgery-Parker JJ). The appellant Davies entered a plea of guilty to a charge of culpable driving causing death and was sentenced to imprisonment. At the scene of the accident, which formed the basis of the charge, Davies told a bystander that he had been the driver of his vehicle, but told others that his “mate was driving”. He was heavily intoxicated. In a later record of interview with police he said that he had no recollection of whether or not he was the driver, a position which he thereafter maintained. There was significant eye-witness and circumstantial evidence supporting the proposition that Davies had not been the driver. He nevertheless entered a plea of guilty. On an application for leave to appeal from his conviction, Badgery-Parker J, with whom the other members of the court agreed, said (at 482):
It is clear that this court may grant leave to appeal against a conviction entered pursuant to a plea of guilty. The principle to be applied is the same as that to be applied in a trial court where prior to sentence an accused person seeks leave to withdraw a plea of guilty previously entered. In R v Sagiv (1986) 22 A Crim R 73 at 80-1, Lee J said:
There have been a number of cases in regard to withdrawal of a plea both before conviction, and on appeal and the following have been cited here: R v Foley (1963) 80 WN(NSW) 726; R v Plumber [1902] 2 KB 339; S (an infant) v Manchester City Recorder [1969] 3 All ER 1230; Bone v R [1968] Tas SR (NC 19) 19; James v R [1967] Tas SR (NC 8) 8; Frodsham v O'Gorman [1979] 1 NSWLR 683; R v Murphy [1965] VR 187; R v Forde [1923] 2 KB 400; R v Chiron [1980] 1 NSWLR 218; R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v Durham Quarter Sessions; Ex parte Virgo [1952] 2 QB 1; R v Ingleson [1915] 1 KB 512 and R v Lloyd (1923) 17 Cr App R 184 .
The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.
It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which it is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (Re O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59 and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings [emphasis added].
Badgery-Parker J referred with evident approval to the decision in Murphy, in which Sholl J said:
In the present instance, the applicant's case is that she pleaded guilty because of considerations irrelevant to the actual question of her guilt or innocence, and that she is in fact not guilty. Mr Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, eg a misunderstanding of what she was pleading to or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial [emphasis added].
The issue, Badgery-Parker J said, was not whether the appellant Davies had, by his plea of guilty, lost a chance of acquittal that was reasonably open to him. The question was, his Honour said, as to the circumstances in which the appellant determined to plead guilty and whether they revealed a miscarriage of justice. Davies relied upon two submissions relevant to that question: first, that his will had been overborne by financial and other pressures such that his plea should not be regarded as voluntary, and, secondly, that it would not be fair to hold him to his plea. With regard to this second submission, his Honour said (at 485):
The appellant's submission that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv) and it is not necessarily to be accorded such finality if there are circumstances which indicate that the plea “was not really attributable to a genuine consciousness of guilt” per Sholl J in Murphy, supra. If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J, “an issuable question of guilt” — to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.
Badgery-Parker J, in allowing the appeal and ordering a new trial, observed that Davies’ plea of guilty “was entered on the basis of knowledge of the evidence against him, but not in full knowledge of the facts. Although it was in technical terms an admission of all of the ingredients of the offence, that admission was not based on his own knowledge but upon his appreciation of the evidence against him and in those circumstances, while it manifests a willingness on his part to acknowledge his guilt if his guilt were proved, it cannot be said to reflect any genuine consciousness of guilt on his part”.
The phrase “consciousness of guilt” in this case means an acceptance of guilt based upon an acceptable level of knowledge of the facts alleged in the Crown’s case, understanding of the charges and the relevant law. This is consistent with the decision in Liberti, where the appellant did not have a proper understanding of the law relating to the supply of drugs as it stood at the time he confirmed his pleas of guilty and was sentenced. Similarly, in Caruso, the basis of the appeal against conviction was that the appellant’s counsel had misunderstood the appellant’s instructions as to what he had done, and on the basis of that misunderstanding a plea of guilty had been entered, and, as such, Caruso did not have a sufficient understanding of the relevant law. If his counsel had properly understood his admissions, his counsel would have had to advise Caruso that the facts alleged could not support a plea of guilty. This approach is also consistent with the decision in Davies and in particular to that part of the judgment of Lee J in R v Sagiv (1986) 22 A Crim R 73 quoted with approval by Badgery-Parker J: see [36] above.
The next decision referred to by Higgins J was R v Cincotta (Unreported, Court of Criminal Appeal of the Supreme Court of New South Wales, Hunt CJ at CL, Grove and Allen JJ, 1 November 1995). The part of the judgment of Hunt CJ at CL quoted by Higgins J is also quoted in the judgment of Spigelman CJ in Toro-Martinez v The Queen [2000] NSWCCA 216; 114 A Crim R 533 (Toro-Martinez), to which I will now turn. It is worthwhile setting out what was said by Spigelman CJ regarding the circumstances in which a miscarriage of justice may arise, at [21]-[25]:
A formulation which has frequently been referred to with approval is that of Sholl J in R v Murphy [1975] VR 187 at 191:
"... for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt ..."
To similar effect are the observations of Lee J (with whom McInerney and Campbell JJ agreed) in R v Sagiv (1986) 22 A Crim R 73 at 80, who applied a test of "mistake or other circumstances affecting the integrity of the plea as an admission of guilt ...".
The significance of this factor is also affirmed in R v Cincotta (Supreme Court of New South Wales, Court of Criminal Appeal, 1 November 1995, unreported) in which Hunt CJ at CL with whom Grove and Allen JJ agreed, said at 1:
"A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. There must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt." (Emphasis added)
To similar effect is the reasoning in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 141 where their Honours said:
"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."
Furthermore, as Dawson and McHugh JJ said in Maxwell v The Queen (1996) 184 CLR 501 at 511:
"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."
The appellant in Toro-Martinez was charged with being knowingly concerned in the importation of a trafficable quantity of cocaine. He pleaded not guilty, and made a preliminary application for a stay of the charge, and in the alternative that certain evidence not be admitted, on the basis of the involvement of undercover police officers in the importation of the cocaine. Following the rejection of that application, he changed his plea to guilty, and was sentenced to a term of imprisonment. He appealed his conviction, alleging that the ruling by the primary judge on the preliminary application was wrong, and that but for that ruling he would have maintained his plea of not guilty. Toro-Martinez’s appeal against conviction was dismissed, as the court was satisfied that there was no real question about the guilt of the appellant.
The next case cited by Higgins J was R v Favero [1999] NSWCCA 320 (Favero), in which the appellant was permitted to withdraw his pleas of guilty in circumstances where he had not been properly advised by his counsel, and where he had an arguable basis for acquittal. The appellant in Favero, in fact, had the same defence available to him that the appellant had in Liberti, but his counsel did not advise him of that defence.
The final case referred to by Higgins J was R v Hura [2001] NSWCCA 61; 121 A Crim R 472 (Hura). The appellant, Hura, was charged with five domestic violence related offences against his de facto partner and his son. He pleaded guilty to Count 1, and he maintained this plea. He initially pleaded not guilty to the remaining four counts. His de facto partner gave evidence at his trial, implicating him in the charged offences. He then changed his pleas to guilty with respect to Counts 2 to 5, and the matter was adjourned for sentencing. When the matter returned to court, the appellant wished to change his pleas back to not guilty for Counts 2 to 5. The primary judge determined that he had no jurisdiction to entertain the application, and convicted the appellant. On appeal, the appellant submitted that there would be a miscarriage of justice if the convictions were not set aside. The appellant submitted that he had been shocked by his de facto partner giving untruthful evidence against him at the trial, and he was not thinking clearly or rationally at the time he gave his lawyers instructions that he wanted to change his pleas. In refusing the appeal, Spigelman CJ, with whom Simpson J and Carruthers AJ agreed, said, at [32]-[33]:
The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in R v Toro-Martinez [2000] NSWCCA 216. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty:
· Where the Appellant "did not appreciate the nature of the charge to which the plea was entered" (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233.
· Where the plea was not "a free and voluntary confession" (R v Chiron (1980) 1 NSWLR 218 at 220 D-E).
· The "plea was not really attributable to a genuine consciousness of guilt" (R v Murphy [1965] VR 187 at 191).
· Where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt"(R v Sagiv (1986) 22 A Crim R 73 at 80).
· Where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ...some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt" (R v Cincotta NSWCCA 1 November 1995 (unreported)).
· The "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt" (Maxwell v The Queen (supra) at 511).
· If "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt" (R v Davies NSWCCA 16 December 1993 (unreported)). See also R v Ganderton NSWCCA 17 September 1998 (unreported) and R v Favero [1999] NSWCCA 320).
Particularly pertinent for the present case is a frequently cited passage in the judgment of Badgery-Parker J in Davies where his Honour said:
"If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial."
The cases cited by Higgins J in Gee do not support the widely framed test suggested by his Honour. Undoubtedly, evidence that an accused person does not and never has accepted their guilt with regard to a charge, despite entering a guilty plea, would be important on any application to withdraw a plea of guilty if accepted. Sometimes, this may come by way of evidence that the accused was unaware of the facts on which the charge is based or did not accept the facts in circumstances where a rejection of the facts of necessity amounts to a rejection of guilt. Not all disputes about the facts alleged by the Crown will evidence a lack of consciousness of guilt; for example, an accused person may plead guilty to a charge of assault occasioning actual bodily harm but still dispute the number of occasions on which he struck the victim, and the extent of the injuries inflicted. The accused may accept that he assaulted the complainant, and thereby caused the complainant actual bodily harm, and enter a plea of guilty but still dispute the precise facts alleged by the Crown. Such a plea is binding, and not to be set aside because the accused disputes the precise nature of his or her acts, so long as he or she acknowledges that they did some act which constitutes the offence. In such a case, it is the responsibility of the sentencing court to determine the factual dispute, by hearing evidence if necessary.
Similarly, an accused charged with assault may assert that their motive for doing the act which constitutes the assault was to protect themselves, but they may also accept that what they did went beyond what was reasonably necessary to achieve that end. A plea of guilty based upon that acceptance demonstrates the required consciousness of guilt to make the plea binding where it is entered with an appropriate level of knowledge of the law concerning self-defence.
In the present case, the applicant has always maintained a version of events to the effect that he stabbed the complainant in order to protect himself from a perceived threat. He was given frank and forthright advice from Ms Warrick to the effect that a jury was likely to conclude, based on his description of his actions to Ms Warrick, that what he had done exceeded what was reasonably necessary in order to protect himself from the perceived threat. Based on the evidence of Ms Warrick, I am satisfied that before he instructed Ms Warrick that he wanted to plead guilty, Ms Warrick gave him an opportunity to consider the matter. She also engaged in telephone conferences with Mr Mancini and the applicant’s father, in which she reiterated her advice to the applicant. Contrary to the evidence of the applicant, I am satisfied that Mr Mancini did not dispute the advice of Ms Warrick, but in fact told the applicant that he should listen to her advice. There can be no suggestion that the applicant’s will was overborne in the process; for one thing, he received support for his position from his father, who did dispute the advice given by Ms Warrick. I am also satisfied that at all times Ms Warrick informed the applicant that she was prepared to appear for him in the trial if he chose to maintain his pleas of not guilty.
I do not accept the applicant’s evidence that Mr Mancini advised him to plead guilty with a view to withdrawing his pleas at a later date. This allegation does not sit well with the evidence of Ms Warrick concerning the telephone conference with Mr Mancini.
Mr Masters made it clear during the hearing of the application that he had no criticism to make of the advice given by Ms Warrick. I will go further and say that her conduct was perfectly consistent with her professional obligations. Counsel has an obligation to give frank advice to their client even when (perhaps particularly when) that advice is likely to be unwelcome.
I am satisfied that the accused instructed Ms Warrick to enter a plea of guilty to the charge after she had provided him with proper and comprehensive advice about the nature of the charge and the law concerning self-defence. It must have been clear to the applicant during the conference with Ms Warrick on the Monday before trial that the Crown’s prospects of negativing self-defence by proving that what he had done was in excess of what was reasonably necessary were very good, bordering upon a certainty. This must have been particularly so after the conference with Mr Mancini, a lawyer the applicant professed to trust. I am satisfied that the applicant accepted that what he had done was in excess of self-defence and that, as such, he was guilty of the offence to which he ultimately pleaded guilty. This was a plea demonstrating a consciousness of guilt, in the sense that it demonstrated an acceptance by the applicant that he was guilty of the offence. The plea was entered by the applicant with sufficient knowledge of the relevant facts and law such that the integrity of the plea is not demonstrated to be impugned.
It is not to the point that the Crown had not indicated its acceptance of the applicant’s version of events, or his professed motive for doing what he did. If the Crown challenges those matters, they will be determined by the sentencing court.
The applicant has not established any reason why he should be permitted to withdraw his plea. The application is dismissed.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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