R v Hura - [2001] NSWCCA 61

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v HURA [2001] NSWCCA 61

FILE NUMBER(S):
60403/00

HEARING DATE(S): 27/02/01

JUDGMENT DATE: 16/03/2001

PARTIES:
Regina
Darren Tahu Hura

JUDGMENT OF: Spigelman CJ Simpson J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/0244

LOWER COURT JUDICIAL OFFICER: Graham DCJ

COUNSEL:
In person (Appellant)
L M B Lampratti (Respondent)

SOLICITORS:
In person (Appellant)
S E O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW - withdrawal of guilty plea - s91 Criminal Procedure Act 1986 - finding of guilty made - no jurisdiction to allow withdrawal of plea
MISCARRIAGE OF JUSTICE - whether acceptance of guilty plea constituted miscarriage of justice - no miscarriage of justice

LEGISLATION CITED:
Crimes Act 1900
Crimes Legislation Amendment (Procedure) Act 1997
Criminal Procedure Act 1986

DECISION:
Appeal dismissed.

JUDGMENT:

- 3 -

IN THE COURT OF
CRIMINAL APPEAL
60403/00
SPIGELMAN CJ
SIMPSON J
CARRUTHERS AJ
Friday 16 March 2001

REGINA v Darren Tahu HURA
Daren Tahu Hura (the Appellant) was indicted on five counts before the District Court. The Appellant plead guilty to the first count which was assault occasioning bodily harm to his de facto wife. The remaining four counts were assault occasioning actually bodily harm to his son, an act of indecency, and two charges of sexual intercourse without consent. The Appellant pleaded not guilty to each of these four counts.
During the course of the Crown evidence, the Appellant changed his plea such that he plead guilty to all five counts on the indictment. Pursuant to s399A of the Crimes Act 1900 (now s91 of the Criminal Procedure Act 1986) the Appellant was rearraigned and he pleaded guilty to all counts. The judge accepted all of the pleas of guilty and discharged the jury accordingly. The judge proceeded with a hearing on sentence. That hearing was adjourned until a later date.
At the further proceedings on sentence, the Appellant indicated that he wished to withdraw his plea of guilty in relation to the last four counts on the original indictment. Graham DCJ determined that by virtue of s91(2) of the Criminal Procedure Act, he had no jurisdiction to allow a withdrawal of the guilty pleas. The Appellant appeals this decision and also alleges a miscarriage of justice by virtue of his entering the guilty pleas.
Held
per Spigelman CJ, Simpson J and Carruthers AJ agreeing.
Jurisdiction of District Court
The word “finding” in s91(2) should not be given an overly technical meaning. His Honour’s acts in accepting the pleas of guilty, discharging the jury and commenting that there was no longer a need for a trial and that the pleas were “all that the law requires in order to establish his guilt” were sufficient to constitute a “finding” in the relevant sense. His Honour was correct to determine that he had no jurisdiction to entertain the application for withdrawal of the guilty pleas.
Maxwell v The Queen (1995) 184 CLR 501; Griffith v The Queen (1977) 137 CLR 293 discussed.

Miscarriage of Justice
The plea represented a genuine recognition of guilt. No miscarriage of justice has occurred.
R v Torro-Martinez (2000) NSWCCA 216; R v Davies, NSWCCA, 16 December 1993 (unreported) referred to.
Orders
Appeal dismissed.

- 23 -

IN THE COURT OF
CRIMINAL APPEAL
60403/00
SPIGELMAN CJ
SIMPSON J
CARRUTHERS AJ
Friday 16 March 2001

REGINA v Darren Tahu HURA
JUDGMENT

SPIGELMAN CJ: The Appellant faced five charges before the District Court relating to incidents that occurred at his family home at North Parramatta on 14 June 1999.
The first count in the indictment asserted that he had assaulted Ms Quire Menzies, his de facto wife, occasioning actual bodily harm to her. To this charge he pleaded guilty from the outset and never changed his plea.
With respect to the other four charges he initially pleaded not guilty. He changed his plea to guilty in the course of the trial but subsequently sought to resile from the guilty plea. The four charges were alleged to have occurred on 14 June 1999 at North Parramatta. They included a charge alleging assault occasioning actual bodily harm to his son Joshua; a charge alleging an act of indecency towards his de facto by unzipping his pants and urinating on her; and two charges of sexual intercourse without consent by requiring her to perform fellatio and by penile vaginal penetration, in each case in circumstances of aggravation by reason of threatening her with actual bodily harm.
When first called upon to do so, the Appellant pleaded not guilty to each of these four counts. On 15 February 2000 the Crown opened and the complainant was called. She gave evidence concerning the alleged offences. It appears that her evidence was substantially complete. The Crown Prosecutor asked for a short adjournment to have a conference with a medical witness who had just arrived, before completing examination in chief of the complainant.
During the course of this adjournment the Appellant indicated to his legal representatives that he wished to change his plea. His Honour adjourned the matter so that full instructions could be given. After the adjournment, counsel for the Appellant indicated that the instructions had been confirmed. His Honour’s attention was directed to the provisions of s399A of the Crimes Act 1900, which has now been re-enacted as s91 of the Criminal Procedure Act 1986 and which I will hereinafter set out.
His Honour indicated that s399A did apply in the circumstances before him. His Honour proceeded to have the accused rearraigned and the indictment read to him. The Appellant pleaded guilty to the further four counts. The following then occurred in the absence of the jury:
“HIS HONOUR:    ‘Is there any reason why I should not accept the plea in those circumstances?’
BOYD:    ‘Not that I can put.’
CROWN PROSECUTOR:                   ‘No your Honour.’
HIS HONOUR: ‘In those circumstances I am satisfied that the Court should accept those pleas of guilty and I propose to discharge the jury under s399A of the Crimes Act.’ “
The jury was then recalled and his Honour explained to them what had happened. In the course of his remarks to the jury his Honour said:
“The charges from 2-5 have been read to him again and he has now pleaded guilty in respect of each of those charges. So it follows that for all of the charges on the indictment the accused has now pleaded guilty. That means that there is no longer any need either for a trial or for a jury.”
His Honour also said:
“The accused has now formally and publicly admitted his guilt in respect of each of those charges and that is all that the law requires in order to establish his guilt because I have accepted those pleas. It follows that the court is obliged to discharge the jury. There is, in any event, nothing left for you to decide.”
His Honour proceeded on that same day with a hearing on sentence. A criminal history in both New Zealand and Australia was tendered. Furthermore, a Statement of Facts was tendered which related to a prior occasion on which he had assaulted his de facto. Counsel for the Appellant indicated that an adjournment was needed to obtain a pre-sentence report and, perhaps, some expert evidence on the Appellant’s alcoholism. The matter was set down for further hearing on sentence.
When the proceedings on sentence recommenced on 30 March 2000 counsel appearing for the Appellant indicated that he had received instructions that morning from the prisoner that he wished to change his plea. Withdrawal of the plea related only to Counts 2-5 of the original indictment. The legal representatives of the Appellant were given leave to withdraw.
Jurisdiction of District Court
When the matter returned before his Honour Judge Graham on 16 June 2000, a preliminary issue arose as to whether or not his Honour had any jurisdiction to continue to hear the matter by reason of the application of s91 of the Criminal Procedure Act 1986. That section relevantly provides:
“91(1) If an accused person pleads ‘guilty’ to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence.
(2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly.”
The issue was whether, by reason of s91(2), his Honour could take any steps once there has been a deemed jury verdict. The case for the Appellant before his Honour was that s91(2) had not come into effect because nowhere in the transcript was there an express finding in the terms of the final clause of s91(1) i.e. “… to find the accused person guilty of the offence”. I quoted the transcript above. As there appears, his Honour expressly referred to the court ‘accepting the plea’ and to ‘discharging the jury’, but there are no words, in terms, stating that the accused was ‘found’ to be guilty.
It is authoritatively established that once the jury has returned a verdict the trial judge has no discretion to permit the accused to withdraw a plea of guilty. (See R v Chiron (1980) 1 NSWLR 218 at 226-227). The contrary was not argued before his Honour or in this Court.
Counsel who appeared for the Appellant before his Honour submitted that the occasion for the application of s91(2), which was conceded to have the same effect as the common law position to which I have referred, had not arisen. Section 91(2) commences with the words “The finding has effect …”. The reference to “the finding” is a reference to the final clause of s91(1) i.e. “to find the accused person guilty of the offence”. The submission below, and in this Court, was that as there had been no such “finding”, s91(2) did not operate.
His Honour concluded:
“It seems to me, in the present case, that there was not only an acceptance of a plea but that the court had acted upon it so as to constitute an implicit finding of guilt. That occurred in two ways. In the first place by taking the next step under s91, having formally accepted the plea, of discharging the jury and secondly, by then proceeding to commence the sentencing hearing. The first of those events is antecedent to the finding of guilt, in the language of the section, though it seems that, conceptually, they are simply two parallel consequences which flow from the court’s acceptance of the plea of guilty. There arises, at that point, a duty to do two things, not necessarily sequentially. Although, for reasons of constitutional propriety and in recognition of the importance of the jury system, no doubt the ordinary form of procedure would be to discharge the jury and then to return a formal finding of guilt, but, in the ultimate analysis, the two events are concurrent rather than sequential upon each other.
In other words, once the pleas of guilty are accepted and the next step taken under s91, then it seems to me implicit in the discharge of the jury that there was also a finding of guilt. That is confirmed and perhaps independently supported by the conduct of the court thereafter in proceeding to consideration of the question of sentence.” (114-115)
His Honour went on to hold that he had no jurisdiction to entertain the accused’s notice of motion to set aside or withdraw his plea of guilty. His Honour went on to “for more abundant caution”, as he expressed it, to make an express finding of guilt in relation to these matters.
In reaching this decision his Honour relied on the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1995) 184 CLR 501 at 509 where their Honours said:
“Thus whilst a plea of guilty is a confession of guilt, it does not itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, and the determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.”
Their Honours also said at 507:
“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict plea.
…
The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter.”
Their Honours went on to refer with approval to a passage in the judgment of Gibbs J in the Supreme Court of Queensland in R v Jerome & McMahon [1964]Qd R 595 at 604. With respect to the facts in that case, Gibbs J said:
“In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisance; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused person.”
The passage in the reasons of Gibbs J which states that “perhaps” a sufficient step would be taken if a court adjourned proceedings to enable information relevant only to the question of sentence to be obtained, is directly pertinent to the present case.
In Maxwell Dawson and McHugh JJ referred to the reasoning of the majority of the court in Griffiths v The Queen (1977) 137 CLR 293 and in particularly to the judgment of Aickin J in that case. In Griffiths at 335-336 Aickin J said:
“It was argued for the applicant that, before there was a conviction, the trial judge must use some express words to indicate the situation, such as ‘I convict the accused’. I can see no reason why conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective.”
In Griffiths itself, reliance was placed on the fact that not only had the applicant in that case adhered to his plea of guilty, but the trial judge had accepted the plea and went on to hear evidence in relation to determination of sentence.
In Maxwell, Gaudron and Gummow JJ also referred with approval to the passage of Gibbs J in Jerome & McMahon and to the majority judgments in Griffiths v The Queen. Their Honours said:
“The nature of the exercise involved in the rejection of a plea and then the grant of leave to withdraw a plea is such, in our view, that it must be concluded that conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question.”
In Maxwell the court was concerned with the issue of what constitutes a “conviction” for the purposes of autrefois acquit and autrefois convict. A number of authorities indicate that the word “conviction” takes its colour from its context. (See eg Director of Public Prosecutions v McCoid [1988] VR 982 at 987; Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 at 265.
In the present case the Court is concerned with what constitutes a ‘finding’ to the effect that an accused person is “guilty of the offence”. Authorities on the word “conviction” are helpful but not determinative in this regard.
In the Second Reading Speech for the Crimes Legislation Amendment (Procedure) Act which introduced s399A into the Crimes Act 1900, the Minister said:
“(s399A) amends a somewhat formal procedure. Currently once the accused is placed in the charge of the jury only the jury may bring down a verdict and thereby end a trial. Accordingly if the accused changes his or her plea from not guilty to guilty during the course of the trial, the accused must be rearraigned and plead guilty before the jury. The judge thereupon directs the jury to bring down a verdict of guilty. This procedure is rather time wasting and, no doubt, sometimes a little confusing for jurors. The amendment vests a power in the judge to accept a plea of guilty in the course of the proceedings without the involvement of the jury. The judge can discharge the jury from giving a verdict and find the accused guilty. It is important to note that the finding of a judge will have the same effect as if it were the verdict of the jury.”
The difficulties to which the Minister referred had been highlighted in this Court’s decision in R v Ross, NSWCCA, 20 April 1994 (unreported).
The objective of the legislation was to avoid an excessively formal procedure that was devoid of substance. In such a context, the words “to find the accused person guilty of the offence” should not be given an overly technical meaning. It is sufficient if, in substance, there has been a finding of the relevant character. There does not, in my opinion, have to be a finding to this effect in express terms.
The crucial decision for the Court under s91(1) is the decision of the Court to ‘accept the plea’. Once an act of acceptance has occurred - as happened in this case in express terms - the statutory formulation states that “the court is to discharge the jury … and to find the accused person guilty …”. The mandatory terms of this provision also suggest that no express advertence is required. Once the Court has formulated an act of acceptance, the obligation is to perform the other two steps. In this formulation the word “and” means “and” not “or” or “each”. Both steps are obliged to be taken. They are, as his Honour put it “concurrent” rather than “sequential”.
In his remarks to the jury, following upon his Honour’s express acceptance of the plea, his Honour said “there is no longer any need either for a trial or for a jury”. The reference to the absence of the need for a jury may be seen as referable to that part of s91(1) which refers to the discharge of the jury. However, the express reference to the fact that there was now no longer a need for a trial of any character, is a clear indication that the trial judge had made a finding of guilt. To similar effect is his Honour’s reference to the fact of the admission of guilt as “all that the law requires in order to establish his guilt”. These two references, together with the formal commencement of proceedings on sentence, constitute “an unequivocal indication” that the accused had been found guilty - to adopt the terminology of Aiken J in Griffiths supra at 336, applied by Gaudron and Gummow JJ in Maxwell at 531-532.
In my opinion his Honour made a finding of guilt. His Honour was correct to conclude that, as a result of the application of s91(2), he had no jurisdiction to entertain the application for withdrawal of the plea.
Miscarriage of justice
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 ACrimR 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 ACrimR 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 R v Davies (supra) 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 issue is whether or not the material before this Court suggests anything of this character.
The Appellant’s Case
The Appellant advanced two reasons for his plea of guilty. The first can be quickly disposed of. He suggested that he was influenced by his legal representatives’ indications that he would receive a discount on the sentence that would otherwise be imposed if he pleaded guilty. The solicitor who represented him at the trial gave evidence. She said that she would have advised the Appellant, as a matter of standard procedure, that a plea of guilty would result in the Court showing some leniency.
This is entirely proper and accurate advice. It is advice that the Court encourages legal representatives of accused persons to give. Nothing in the Appellant’s version of the way in which this advice was conveyed would suggest that there was any element of pressure on the part of his legal representatives, or any other aspect of their conduct in this regard, which could induce a person who genuinely believed that he or she was not guilty of an offence to plead guilty.
The second reason given for the change of plea was expressed by the Appellant in terms of his response to the evidence that his de facto gave against him in Court. It was in the immediate wake of her giving the substantive evidence of the events in June 1999, establishing each of the five counts, that he gave instructions to change his plea.
In his affidavit he indicated that the complainant had visited him in prison on the Friday before the trial. In successive paragraphs of this affidavit he gave two versions of this conversation.
He first said that she said to him: “Don’t worry darling I will tell the Court the truth that I lied in my statement.” This being a reference to her police statement which, if she retracted, would have favoured the accused at the trial.
In the next paragraph of his statement he says that what she said to him was:
“Darling I will tell the truth to the Court when I give evidence next week.
This statement does not necessarily assist the Appellant.
On the basis of these statements he formed an impression, according to his affidavit that the complainant would tell what he asserted to be “the truth”.
In this Court the Appellant maintained his innocence of the four charges. His solicitor at the trial gave evidence and she affirmed that he had asserted his innocence until the point of time during the trial that he instructed her and his counsel to change his plea. This was an instruction which he gave to her in writing. She confirmed that he was very distressed at the time that he gave these instructions.
In his affidavit the Appellant said:
“I entered the plea of guilty at court after Ms Menzies gave her evidence because I was shell shocked. I could not believe that she had not told the truth in the witness box. I called my solicitor over and I said:
‘Just pull the pin.’
I was shattered and I could not believe what was happening. I was not thinking clearly or logically. I was shocked that Ms Menzies could be railroaded into telling lies the way she did. At the time I thought that if I plead guilty the children would not be taken away from Ms Menzies.
Now that I’m thinking clearly and I realise that Ms Menzies lied in court because she was scared of losing her children, but they would probably not be taken away from her I want to prove my innocence. I only pleaded guilty because I was very upset and because I was told by my representatives that if I did not I would lose the discount on my sentence. This is the reason I asked this honourable court to allow me to change my plea to Not Guilty.”
On 15 February 2000 the complainant was called to give evidence before lunch. During that period she gave evidence only about the first count, namely the count to which the Appellant had always pleaded guilty and from which plea he has never resiled.
It was after lunch when the complainant returned to the witness box that she gave evidence about the four counts to which, at that point, he had pleaded not guilty.
The plea occurred immediately after Ms Menzies had given the substance of her evidence in chief which, if it had been accepted by the jury, would have led to the conviction of the Appellant on all charges. The Appellant contends that he had an expectation at the time that Ms Menzies would not give such evidence and that the shock of listening to her actual evidence was such that he agreed to enter a plea notwithstanding a continuing belief in his innocence.
If that evidence were accepted by this Court then in accordance with the appropriate tests to which I have referred above, there would have been sufficient doubt as to the bona fide nature of the plea for this Court to allow the appeal and direct a new trial be held. In my view this evidence should be rejected. I am quite satisfied that the plea did represent a genuine consciousness of guilt on the part of the Appellant as at the time it was entered.
In his affidavit the Appellant said:
“During the luncheon break my father’s partner Karen Tiki (I think that is what her surname is) overheard a conversation between the Prosecution and Ms Menzies. They were standing outside the court when the court adjourned for lunch and my mother told me that Quire Menzies said to her that the Prosecutor said:
‘If you don’t give the same evidence that you made in your statement we will have to have you psychologically assessed.’
I am aware that Ms Menzies was terrified of losing her children. I believed that the pressure placed on her by the Prosecution induced her to lie to the court. Ms Menzies said to me on several occasions:
‘I am terrified that DOCS will take my children away from me. I can’t let them do that.’ “
In an affidavit filed in these proceedings the Crown Prosecutor said:
“I deny that I ever said this or anything like this to Ms Menzies. I deny attempting in any way to influence the evidence Ms Menzies gave in the matter.”
An officer of the Department of Community Services said in her affidavit:
“I note in particular the claims of the appellant in the affidavit and submissions in which it is alleged that DOCS officers made certain statements to Ms Menzies to the effect that if Ms Menzies dropped the charges against the appellant the Department would take her children away from her. In response, I deny that I ever told Ms Menzies what evidence she would give in court or whether she should continue to press the charges against the appellant. My recollection is that I said to Ms Menzies words to the effect that if she decides to continue to live with the appellant the Department would have to intervene because of the concerns the Department had for the welfare of the children.”
I note that the alleged conversation during the luncheon adjournment was said to be overheard by a person described as the Appellant’s father’s partner. That person has not given any evidence in this regard.
The denials of the Crown prosecutor and of the DOCS officer should be accepted. No such threat or inducement was proffered to Ms Menzies.
Ms Menzies gave evidence in this Court and was cross-examined by the Appellant himself, he having been denied legal aid. In her affidavit she affirmed that the evidence that she gave in the District Court was true. She denied that, on the occasion that she visited him in prison just before the trial, she had said: “Don’t worry darling I will tell the court the truth that I lied in my statement”. She also denied that the Prosecutor had said anything to her to the effect that: “If you don’t give the same evidence that you made in your statement we will have to have you psychologically assessed”. She said in her statement that representatives of the Department of Community Services did tell her that if she continued to live with the Appellant or drop the charges against him they would remove her children from her care. She added: “However, the pressure from the Department did not induce me to tell lies to the court. My evidence to the court was the truth”.
The complainant referred to an affectionate letter she had written to the Appellant (and on which he had relied) in which she said:
“Well darling I still love you I always will and yes we miss you heaps but I don’t want to feel like you are going to blame me for what happened. I don’t know how long you’ve got but I’m sorry I didn’t help you but there was a reason for me not to tell them what you would have wanted me to do.”
In his affidavit, the Appellant suggested that she could not tell what he called “the truth” because of the threat to her having her children taken away. However the passage is entirely equivocal in this respect.
However, Ms Menzies said in her affidavit:
“I meant by this statement that there was a reason why I did not lie to the court as the appellant requested.”
I accept this evidence.
In the course of her oral evidence before the Court, Ms Menzies emphasised on a number of occasions that the Appellant had asked her to give false evidence, which she had not done. She produced to the Court a document, in the handwriting of the Appellant, which the Appellant confirmed to be such, that set out in detail the precise evidence that she should give. The thrust of the evidence was to inculpate him with respect to the first count - being the charge to which he had pleaded guilty, without any question, from the outset - but to withdraw her statements with respect to the other charges and to indicate that the incidents upon which the four charges were based had not in truth occurred. At the foot of this two page detailed statement, drafted by the Appellant to be expressed by the complainant in her own name, the Appellant had written:
“If they ask you anything babe. Just stick to this please and we will be back as a family again soon.”
This document undermines the Appellant’s case. It shows that he sought to induce the complainant to give evidence in his favour in an orchestrated manner, inconsistent with this version being the truth. Its existence explains the basis of his hope or expectation that Ms Menzies may not give evidence in accordance with her original police statement.
The Appellant tendered some documents and directed a number of submissions designed to attack the credit of Ms Menzies. Indeed, at one stage in her cross-examination by him, she admitted that she had lied in the past, although maintaining that she was not lying in any respect relevant to these proceedings.
The Appellant tendered a statement signed by Ms Menzies which constituted a withdrawal of her original complaint to the police in the following terms:
“I Quire Menzies have made a complaint to police relating to an assault and a sexual assault committed upon me by my de facto husband Darren Hura. I now wish to retract my complaint. I will not attend court and give evidence against Darren Hura and I want no further police action taken in this matter.”
This statement was timed and dated 3.00pm 2 July 1999. It is noteworthy that in this statement she does not deny the truth or accuracy of her original allegations, including the allegation of sexual assault. She simply says she wishes to “retract my complaint”.
Some time after this withdrawal of complaint, an officer from the Department of Community Services visited their home. After that visit, the Appellant said in his affidavit, that the complainant told him:
“Darren DOCS have been here and they are going to take my children off me.”
and
“They told me that if I dropped the charges against you they’ll have to take my children away from me because these are very serious charges.”
The Crown tendered a subsequent statement made on 20 July 1999 to the police, also signed by Ms Menzies, where she said:
“On the 16 June 1999 I made a statement to Detective Senior Constable McNabb about a report of a sexual assault upon myself by my husband Darren Hura. About the 6 July 1999 I made a retraction statement to Detective McNabb that I did not wish to proceed with the charges for this matter. I retracted this because I was in fear of my life and the lives of my children.
My husband came back to stay at my house last week. The police have been to see my last week and Darren has told me he seen the police here. Last night (19 July 1999) he came home drunk and he was being verbally abusive to me. He was saying to me not to speak with the police not to go out of the house and that he would be watching me.
This has caused my fears to be worsened about him and I now ask the police to take further action about when he raped me back on the 14 June 1999. I do not with to add or retract from my original statement which I made on 16 June 1999.”
In her evidence in this Court, Ms Menzies confirmed that she made the original retraction statement out of fear and that her first statement to the police was an accurate statement of the truth.
I formed the opinion that her evidence in this respect should be accepted. No doubt, if a trial had occurred, this course of events would have led to cross-examination on credit. It does not however suggest anything which casts even a shadow of doubt on the integrity of the plea.
The Appellant directed a number of other submissions to matters which may have been used by a cross-examiner to test the complainant’s credit. These included a reference in a hospital report to her consent to the oral sex which occurred on the day, contrary to the charge; the absence of any reference by the son in a conversation which occurred the day after the assault to any injury to himself, in contrast with the son pointing out the injury to the mother; and evidence from a third party about the alleged proclivity of the complainant to tell lies. None of this evidence makes me doubt in any respect the accuracy of the account which Ms Menzies has given to this Court.
I accept her evidence that she had not given the Appellant any basis for believing that she would give evidence contrary to her statement. I accept her evidence that he had sought to have her give evidence in a way that would exculpate him from the four charges to which he originally pleaded not guilty.
The Appellant gave the appearance of, and such of his prior history as is before the Court confirms he is, a man who expects that the women in his life will succumb to his will. Perhaps for that reason he harboured some hope, even an expectation, that when it came to the ultimate act of giving evidence in Court, Ms Menzies would fail to tell the truth. When this hope was dashed on the day, he decided to plead guilty in order to obtain such advantage on sentence as he could obtain at that time. No doubt he was upset and agitated, but not to a degree which clouded his judgment in this regard.
In my opinion there is no reason to doubt the integrity of the plea. The plea represented a genuine recognition of guilt. There is no real question about the guilt of the Appellant.
The appeal should be dismissed.
SIMPSON J: I agree with the order proposed by Spigelman CJ and with his reasons therefor.
CARRUTHERS AJ: I agree with the judgment of Spigelman CJ.

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LAST UPDATED: 19/03/2001