R v KCH - [2001] NSWCCA 273

No judgment structure available for this case.

Reported Decision:
124 A Crim R 233

New South Wales

Court of Criminal Appeal

CITATION: Regina v KCH [2001] NSWCCA 273 revised - 6/14/2002

FILE NUMBER(S): CCA 60410/99

HEARING DATE(S): 16/07/01, 20/08/01,21/08/01

JUDGMENT DATE:
19 September 2001

PARTIES :

Regina v KCH

JUDGMENT OF: Ipp AJA at 1; Hulme J at 118; Sperling J at 177

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0149

LOWER COURT JUDICIAL
OFFICER : Karpin DCJ

COUNSEL : T A Game SC/M A Marty (Appellant)
M C Grogan (Crown)

SOLICITORS: D Humphreys (Appellant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - Withdrawal of guilty plea - miscarriage of justice - inappropriate advice - improper pressure - legal representatives told appellant of alleged comments of trial judge as to his likelihood of being convicted - whether it is sufficient for the pressure to be one of a number of factors leading to the decision to plead guilty - tactical advantage in pleading guilty - duty of legal representatives not to bring improper pressure on clients to plead guilty. - CRIMINAL LAW - Sentence - miscarriage of justice - failure of counsel to obtain instructions as to factual basis of matter to be argued on sentence. D

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED:
Liberti (1991) 55 A Crim R 120
Boag (1994) 73 A Crim R 35
R v Wilkes [2001] NSWCCA 97
Meissner v The Queen (1995) 184 CLR 132
Maxwell v The Queen (1996) 184 CLR 501
Kouroumalos [2000] NSWCCA 453
Whitehead [2000] NSWCCA 400
Favero [1999] NSWCCA 320
Ganderton (Unreported, NSWCCA, 17 September 1998)
Wilde v The Queen (1988) 164 CLR 365
R v Turner [1970] 2 QB 321
The Queen v Pinhassovitch (Unreported, Supreme Court of Victoria, CCA, 7 February 1994)
R v Boyd [2000] NSWCCA 110
R v Inns (1974) 60 Cr App R 231
Rosenberg v Percival (2001) 75 ALJR 734
Chappel v Hart (1998) 195 CLR 232
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Ross (Unreported, CCA, 20 April 1994)
R v Murphy (1965) VR 187
R v Davies (Unreported, CCA, 16 December 1993)
R v Cincotta (Unreported, CCA, 1 November1995)
R v Hura [2001] NSWCCA 61
R v Toro-Martinez [2000] NSWCCA 216
R v Chiron (1980) 1 NSWLR 218

DECISION: By Majority (1) Appeal upheld (2) Allow appellant to withdraw his guilty plea (3) Conviction set aside (4) New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60419/99

IPP AJA

HULME J

SPERLING J

REGINA v KCH

Facts:
The appellant stood trial in the District Court on one count of sexual intercourse with S, a child under ten years and on an alternative count of aggravated indecent assault on the same child. After the first day of the trial and prior to the conclusion of the Crown case, the appellant changed his plea to the alternative count from not guilty to guilty, this was accepted by the Crown in satisfaction of the indictment. The appellant was sentenced to 6 ½ years imprisonment for the alternative charge, he appeals against the conviction and sentence.

The appeal against conviction arises on the ground that acceptance of the guilty plea amounted a miscarriage of justice. It was alleged by the appellant that he received inappropriate advice from his legal representatives in relation to his guilty plea and that the decision to change his plea was influenced by improper pressure. The appellant asserted that he was told by his legal representatives that the trial judge had expressed the view that it was possible that he would be convicted on the more serious charge and that he would probably be convicted on the alternative charge and hence should plead guilty to the alternative charge. It was these alleged comments by the trial judge that were said to constitute improper pressure.

The appeal against sentence arises on three grounds, Firstly, that the trial judge erred in sentencing the appellant on the basis that the charge on which he was convicted was a representative count. Secondly, it was argued that the sentence was manifestly excessive. Thirdly, leave was granted to argue that the sentence miscarried due to the failure of counsel to obtain instructions as to the factual basis of the guilty plea.

Meissner v The Queen

(ii) Relevance of the strengths and weaknesses of the respective cases

Wilde v The Queen

R v Turner

R v Wilkes

While there were a number of opposing versions as to what the appellant was told about the judge’s views the evidence did not establish on the balance of probabilities that the appellant was told of the judge’s view before he decided to plead guilty. It is, however, clear that the appellant did become aware of the judge’s supposed views when written instructions as to the change of plea were read to the appellant. Upon becoming aware of the judge’s supposed views the appellant was influenced in maintaining his guilty plea and as a consequence the plea was procured by improper pressure and a miscarriage of justice occurred.

(4) Per Ipp AJA, Sperling J agreeing

Legal practitioners owe a duty to the court not to bring improper pressure on clients to plead guilty, this will be breached where a practitioner deliberately or negligently gives a client false information as to the trial judges’ view or opinion. This duty is part of the general duty not to corrupt the administration of justice which is derived from the public interest in ensuring the administration of justice is not subverted.

The Appellant’s decision to plead guilty occurred prior to his counsel seeing the trial judge and was an exercise of free choice. While the alleged comments by the trial judge were calculated to influence a person who was undecided or having second thoughts, the Appellant was not in that position. The alleged comments did not in fact operate as any inducement, which led to the appellant pleading guilty, that decision had already been freely made.

No miscarriage of justice arises on the basis of the communication to the Appellant of the views expressed, or purportedly expressed, by the trial judge. Such representations by judicial officers should not be treated any differently to other representations and a miscarriage will only arise in circumstances improper pressure or a lack of free choice can be properly inferred.

Cases cited:
Liberti (1991) 55 A Crim R 120
Boag (1994) 73 A Crim R 35
R v Wilkes [2001] NSWCCA 97
Meissner v The Queen (1995) 184 CLR 132
Maxwell v The Queen (1996) 184 CLR 501
Kouroumalos [2000] NSWCCA 320
Whitehead [2000] NSWCCA 400
Ganderton (unreported, NSWCCA, 17 September 1998)
Wilde v The Queen (1988) 164 CLR 365
R v Turner [1970] 2 QB 321
The Queen v Pinhassovitch (unreported, Supreme Court of Victoria, CCA 7 February 1994)
R v Boyd [2000] NSWCCA 110
R v Inns (1974) 60 Cr App R 231
Rosenberg v Percival (2001) 75 ALJR 734; [2001] HCA 18
Chappel v Hart (1998) 195 CLR 232
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Ross unreported(, CCA, 20 April 1994)
R v Murphy (1965) VR 187
R v Davies (unreported, CCA, 16 December 1993)
R v Cincotta (unreported, CCA, 1 November 1995)
R v Hura [2001] NSWCCA 61
R v Toro-Martinez [2000] NSWCCA 216
R v Chiron (1980) 1 NSWLR 218

ORDERS

1. Appeal upheld.
2. Allow appellant to withdraw his guilty plea.
3. Conviction set aside.
4. New trial ordered.

60419/99

IPP AJA

HULME J

SPERLING J

REGINA v KCH

JUDGMENT

:

2 On 2 June 1999 the appellant stood trial in the District Court in Bathurst on one count of sexual intercourse with S, a child under the age of ten years, and on an alternative count of aggravated indecent assault involving the same child. On 3 June 1999, prior to the conclusion of the Crown case, the appellant changed his plea to the alternative count from not guilty to guilty. The Crown accepted his plea and the appellant was duly convicted on the alternative count. A sentence of 6½ years imprisonment was imposed. The appellant now appeals against the conviction and sentence.

3 The appellant appeals against the conviction on the ground that his plea of guilty was entered in circumstances giving rise to a miscarriage of justice under s 6 of the Criminal Appeal Act 1912. The appellant seeks orders that the conviction be set aside and he be given leave to withdraw his plea of guilty.

4 In written submissions filed on the appellant’s behalf it was contended that the appellant was inappropriately advised by his legal representatives in relation to his guilty plea and, further, the conduct of the appellant’s case at trial was incompetent. It was said that the appellant was wrongly advised that he was in serious jeopardy of being convicted of the more serious offence and he was not adequately advised that his plea of guilty constituted an acceptance of guilt on his part. Further, it was submitted that the incompetent conduct of the defence contributed to his perception of the difficulties with his case which led to his decision to plead guilty.

5 During the course of oral argument it was further submitted on the appellant’s behalf that his legal representatives had put improper pressure on him to plead guilty and he had been influenced by that improper pressure to plead guilty. According to the appellant, the improper pressure resulted from certain advice he was given by his counsel, Mr Ian Byrne, and his solicitor, Mr Grahame Billing, as to what the trial judge, Karpin DCJ, had allegedly told Mr Byrne in the course of a discussion between her Honour, Mr Byrne and the Crown prosecutor, Mr Lerve.

6 Although his evidence was not always constant on this issue, the appellant asserted that he was told by Mr Byrne and Mr Billing that Karpin DCJ had said to Mr Byrne in effect that it was possible that he would be convicted on the first and more serious charge and would certainly (or probably) be convicted on the alternative charge; hence, they said, he should plead guilty to the alternative charge. This advice, the appellant asserted, constituted improper pressure and caused him to plead guilty.

7 Initially, the appellant appealed against sentence on two grounds. Firstly, he contended that Karpin DCJ erred in sentencing him on the basis that the count on which he was convicted was a representative count. Secondly, he contended that the sentence imposed was manifestly excessive. Later, in the course of argument, the appellant was given leave to add a ground to the effect that the sentence miscarried by reason of the failure of his counsel to obtain his instructions with respect to the factual basis of the guilty plea and to put his case fully in regard to sentence.

8 Affidavits were filed by Mr Byrne, Mr Billing, Mr Lerve (counsel who represented the Crown at the trial) and Mr Kotarski (a friend of the appellant) dealing with the advice Mr Byrne and Mr Billing allegedly gave to the appellant concerning the judge’s views. Additionally, leave was given for the appellant, Mr Byrne, Mr Billing and Mr Kotarski to give oral evidence before this Court on the issues so raised. They were called to testify and were cross-examined.

9 I would emphasise at the outset that no witness testified that Karpin DCJ said the words allegedly attributed to her. On the contrary, the testimony of Mr Lerve and Mr Byrne is that, prior to the appellant’s plea of guilty being entered to the alternative charge, her Honour did not comment at all on the possibility of the appellant being found guilty on either charge. Accordingly, the appeal must be dealt with on the basis that her Honour did not say that which, according to the appellant, Mr Billing and Mr Byrne told him she had said.

10 The principal witness against the appellant at the trial was the complainant, the appellant’s step-daughter, then a seven year old child. The complainant lived in the same house as her mother, the appellant and her younger sister. In her bedroom there was a bunk bed. The complainant slept on the top bunk and her sister slept below.

11 The complainant testified that on the night of 17 April 1998 the appellant came into her room, climbed onto the top bunk, pulled down the sheet cover, pulled down his and the complainant’s pants, and put his penis into her vagina. This hurt the complainant and she screamed. She told the appellant to stop. He eventually did so and fell asleep beside the child. The complainant said that after the assault upon her she felt “sticky stuff” around her vagina. Later her mother came into the room. The appellant was asleep still naked from the waist down. The complainant’s mother hit the appellant on his naked bottom and ordered him back to their bed. The appellant pulled up his pants and left the room arguing with the mother.

12 According to the complainant, she then went into the lounge room and told her mother what had happened. The next day the complainant saw her aunt, Mrs Worthington, and told her about the things the appellant had done. Mrs Worthington communicated with the police and this led to the complainant speaking to a police officer.

13 In cross-examination the complainant in effect testified that she had been anally penetrated and the appellant had not penetrated her vagina. The evidence revealed that when speaking of what had occurred to Mrs Worthington, the police and Mr Goodwin, a family friend, the complainant had asserted that she had been anally penetrated.

14 Medical evidence was led to the effect that no abnormality of the perianal region was detected. The tissue closing off the vaginal orifice appeared normal and intact. According to the medical evidence some anal dilation and tearing caused by an insertion of an erect penis into the anus could be expected, but this would depend upon the extent of penetration. There might not be physical damage if penetration had occurred on a regular basis.

15 In her testimony, the complainant’s mother initially asserted that the complainant had told her that the appellant had done nothing to her. The Crown was then given leave to cross-examine the mother. It transpired that she had made a statement to the police in which she said that she had seen the appellant lying next to the complainant in the bunk bed with his track suit pants down and around his knees. According to the statement, when she asked the complainant whether the appellant had done anything to her, the complainant said, “Yeah, he pushed against me”. Also according to the statement, the complainant told her mother that on the evening in question:

“Daddy got something hard and greasy and pushed against me hard and then I got all wet”.

16 Mrs Worthington testified that the complainant told her that the appellant had come into the room, pulled his pants and her pants down, and “put his private parts into where she does a poo and with that she pointed with her finger around to her bottom”.

17 Mr Goodwin testified that he had spoken to the complainant who told him that the appellant had done a “naughty thing” to her. In cross-examination, Mr Goodwin said that he had asked the complainant why she had told him what she had said at her aunt’s house. The complainant replied then that she said those things because she was scared and the appellant “didn’t do it”, and he “didn’t stick his thing in me”. At a later stage, however, she told Mr Goodwin that the appellant “did try and do things to me”. Towards the end of the cross-examination, a statement Mr Goodwin had signed was put to him in an attempt to refute the testimony he had given. It was then revealed that he could not read and the appellant had written the statement and given it to him to sign. At this stage the lunch adjournment was taken. By about 2.45 pm, when the trial resumed, the appellant had decided to plead guilty.

18 It is to be noted that, at the time of the appellant’s plea, the Crown, to the appellant’s knowledge, had available to it forensic evidence that there were semen stains on the bedclothes that were on the complainant’s bed on the night in question. But for the appellant’s plea, this evidence would have been led.

19 On the main charge of sexual intercourse with a child under the age of ten years, the critical question for the jury was whether they believed her testimony beyond reasonable doubt in preference to that of the appellant. The main point in the appellant’s favour was the complainant’s uncertainty as to whether the penetration had been anal or vaginal. In this regard, Karpin DCJ, in the course of her sentencing remarks, said that the complainant “was a very persuasive witness”.

20 Mr Byrne testified that the evidence of the complainant’s mother was “just dreadful in terms of [the appellant’s] case”. He was supported in this by the finding of Karpin DCJ who regarded the written statement made by the complainant’s mother as true and considered it to be highly corroborative of the complainant’s evidence. Mr Byrne said that the evidence of Mrs Worthington, who testified next, was “forceful, very much to the point” but worse was to come for the appellant when, late on the morning of 4 June 1999, Mr Goodwin produced a statement contrary to the Crown’s case and it emerged that he could not read and the appellant had written out the statement. By then, according to Mr Byrne, it was obvious that the case was “going … badly”. The transcript of the evidence bears out Mr Byrne’s testimony in this respect.

21 Additionally, Mr Byrne had misgivings as to the reliability of the appellant as a witness. The appellant had given Mr Byrne differing sets of instructions on relevant issues and on 3 June 1999, when the court adjourned before lunch, no decision had been made as to whether he should be called to testify.

22 On the alternative charge, the Crown case was very strong indeed. The evidence was that the appellant had been lying next to the complainant in the narrow bunk bed, naked from the waist down. There were semen stains on the bedclothes. The appellant did not dispute any of these matters. His explanation for the semen stains was that they were caused by sexual intercourse he had had with his wife some 15 to 20 minutes before coming to lie next to the complainant. In addition, the appellant had told Mr Byrne that he could understand the complainant’s statement that she had felt his penis pushing against her. This led Mr Byrne to believe that the appellant conceded that his penis had been erect at the time.

23 Prior to the hearing of the appeal, when written submissions were filed, the arguments based on allegedly inappropriate advice and negligent conduct of the defence formed the main plank of the appellant’s appeal against conviction. Later, the appellant’s argument focused on the argument that the plea had been entered as a result of improper pressure, and no further submissions were made in regard to the first-mentioned grounds. Given the relative strengths of the respective arguments that is readily comprehensible. I shall, nevertheless, deal briefly with the arguments made in the written submissions concerning inappropriate advice and negligence in the conduct of the defence.

24 The imprudent or inappropriate advice was said to be that the appellant was in serious jeopardy of being convicted of the more serious offence in circumstances where there were fundamental difficulties with that count. Mr Game SC, senior counsel for the appellant, pointed out that the Crown had opened to the jury in relation to the first count on the basis that the complainant’s vagina had been penetrated. As the Crown conceded at the trial, however, there was uncertainty and doubt as to whether the complainant was alleging vaginal or anal penetration.

25 Karpin DCJ, in her remarks on sentence, observed that there was a strong inference that the “penetration of which the complainant spoke was more likely attempted anal penetration”.

26 The indictment alleged merely that on or about 17 April 1998 the appellant had sexual intercourse with the complainant, she then being under the age of ten years, namely six years. Whether the uncertainty as to whether there had been vaginal penetration or anal penetration would have inevitably resulted in a verdict of acquittal on the first count is open to question. In her remarks on sentence, Karpin DCJ expressed the opinion that the appellant “stood in real jeopardy of being found guilty by the jury on the primary count in the indictment”. I have referred to the factors that supported the Crown case. These would have led any competent counsel to conclude that there was a real prospect of the appellant being found guilty of the main count.

27 In my view, in advising the appellant that he was in jeopardy of being found guilty of the main charge and that there was a strong probability of him being found guilty of the alternative charge, Mr Byrne was fulfilling his duty to his client and giving him sensible and proper advice.

28 The appellant’s written argument further criticised the way in which the complainant was cross-examined. It was submitted:

“there was no real testing of the complainant’s account and, further, it was not suggested that her evidence was untrue. In addition, it does not appear that the appellant’s version of events was ever put to the complainant”.

29 Generally, I consider that there is no substance in the criticisms made of the way in which Mr Byrne conducted the appellant’s defence.

30 Accordingly, I would not uphold the arguments advanced on the appellant’s behalf directed to these matters.

31 The starting point in the inquiry is to acknowledge the circumspection or restraint with which an appellate court is required to approach an appeal grounded on the proposition that a plea of guilty which led to the conviction should be withdrawn. As Kirby P observed in Liberti (1991) 55 A Crim R 120 at 122:

O’Neill

Sagiv

Boag

R v Wilkes

32 An appellant will nevertheless be permitted to withdraw a plea of guilty where a miscarriage of justice would otherwise result. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.

33 A valid plea of guilty is one that is entered in the exercise of a free choice: Meissner v The Queen (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ. The plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v TheQueen (1996) 184 CLR 501 at 511.

34 There have been several expressions of the requirements which have to be met before a court will allow a guilty plea brought about by imprudent and inappropriate advice given by the convicted person’s legal representatives to be withdrawn. In R v Wilkes Wood CJ at CL with whom Giles JA and Simpson J agreed said that an argument of this kind would hinge upon three considerations:

“(a) whether the advice given to the appellant was or was not imprudent and inappropriate;

(b) whether his plea was or was not attributable to a consciousness of guilt; and

(c) whether the material before this Court shows that there is or is not a real question about his guilt”.

Kouroumalos

Whitehead

Favero

Ganderton

35 The advice concerning the judge’s views (that was allegedly given to the appellant in the present case) was of a different character to that considered in the cases referred to in the preceding paragraph. It is one thing to give careless and wrong advice about an accused person’s prospects of success in the trial. It is another to advise that person, incorrectly, that the judge is of the opinion that he may be found guilty on the more serious charge and is likely to be found guilty on the lesser charge.

36 The effect of advice as to the prospects of a defendant being found guilty, given by a person cloaked with the full power of judicial office, who is presumed to have deep knowledge and understanding of the law and to be entirely neutral, is incalculable. For an accused person, whose liberty is in immediate jeopardy, advice from such a source would carry immeasurable weight and would be very difficult to resist. The ordinary consequence will be that such advice will be regarded as having overborne the free will of the defendant and the integrity of the plea of guilty will be regarded as irretrievably tainted.

37 In my opinion, a guilty plea so brought about is an irregularity or flaw in the conduct of the trial so fundamental that it goes to the root of the proceedings and, of itself, will amount to a substantial miscarriage of justice. In such a case the appellate court is not required to determine if a conviction would have been inevitable and the relative strengths and weaknesses of the prosecution and defence cases become irrelevant: Wilde v TheQueen (1988) 164 CLR 365 at 373. See in this regard R v Turner [1970] 2 QB 321 where a similar situation arose and Lord Parker CJ in giving the judgment of the court said at 326:

“[Although the appellant] was warned that the choice was his, once he felt that this was an intimation emanating from the judge, it is really idle in the opinion of this court to think that he really had a free choice in the matter”.

38 Accordingly, cases such as R v Wilkes are distinguishable and are not presently of application. In my opinion, if it is found that the decision to plead guilty was materially influenced by incorrect advice that the judge had expressed views of the kind alleged in this case, improper pressure is established and a finding of a miscarriage of justice must inevitably be made.

39 A different conclusion appears to have been reached in The Queen v Pinhassovitch (unreported, Supreme Court of Victoria, CCA 7 February 1994), although the facts of the case may be distinguishable. With respect, however, if Pinhassovitch is to be regarded as being on all fours with the present case, I would not follow it.

40 I should also mention R v Boyd [2000] NSWCCA 110. In this case the trial judge was asked by the Crown Prosecutor in open court but in the absence of the jury what course he would adopt in regard to sentencing the accused. The judge said that if the accused had prior convictions, were he to be convicted he would “certainly go to gaol on a full time basis”. His Honour went on to say:

“If there is a plea forthwith, I would consider a penalty short of a full-time custodial sentence”.

41 Powell JA (with whom Hulme and Dowd JJ agreed) described the trial judge’s observation as “unfortunate” but did not regard the statement in the particular circumstances as being undue pressure. Hulme J agreed with Powell JA and remarked that even if he were persuaded that the appellant’s plea of guilty was entered otherwise than through a consciousness of guilt, it did not follow that the appeal should be allowed and the appellant permitted to withdraw his plea. Six years had elapsed since the appellant’s plea and as his Honour put it “the reason for the delay will have been the actions of the appellant consciously engaged in for the benefits he saw himself likely to derive from the course he adopted”.

42 In my opinion, R v Boyd is to be distinguished from the present case. There is a significant difference between an accused person being told that the judge, at the parties’ request, had expressed an opinion as to the prospects of a gaol sentence should the appellant be convicted, and an accused person being told that the judge had advised that he might be found guilty on one charge and would probably be found guilty on another.

43 In any event, it seems to me, the ruling authority on the issue is Meissner v The Queen and to the extent that other authorities are inconsistent therewith they are not to be followed. In that case Brennan, Toohey and McHugh JJ at 142 approved the following principle stated by Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233:

“The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the court attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea …”

44 Their Honours went on at 142 to say:

“If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice.”

45 The essential question that falls to be decided, therefore, is whether the appellant was informed, as he alleged, that Karpin DCJ had expressed an opinion to Mr Byrne as to his prospects of being found guilty of the offences of which he was charged.

46 At about 11.30 am on 3 June 1999 there was a short adjournment of the criminal trial during which Mr Byrne informed the appellant that in his opinion the trial was going very badly. The appellant agreed that this was so. Mr Byrne then informed the appellant that the Crown had offered a plea to the lesser charge.

47 At the luncheon adjournment Mr Byrne informed the appellant that the evidence since morning tea had led to the appellant’s position becoming worse, and the appellant did not disagree with that view. Mr Byrne told the appellant that in his view the Crown had established all that was necessary for the appellant to be convicted of indecent assault.

48 Mr Billing also told the appellant that the trial was not going well and he should carefully consider his position. The appellant told his lawyers that he would speak with his family during lunch about pleading guilty and he would let them know his decision when he returned to court.

49 At that stage, the appellant was reluctant to plead guilty.

50 The crucial area of dispute is what happened after lunch and the stage at which the appellant was told of the judge’s views. It has been difficult to make firm factual findings on these matters. One of the problems is that witnesses were not cross-examined on some significant issues and Mr Lerve was not cross-examined at all.

51 There were two opposing versions as to the circumstances in which the appellant was given the relevant information by Mr Byrne and Mr Billing. One version was propounded by the appellant and supported largely by Mr Billing (and, to a degree, by Mr Kotarski). The other version was that of Mr Byrne, supported in a material respect by Mr Lerve.

The Billing Version

52 Essentially, the appellant and Mr Billing testified that, after lunch, the appellant remained undecided as to whether he should plead guilty. Mr Byrne then remarked that he ought to speak to the Crown Prosecutor and see the judge to inform her that the appellant had not made a decision. With that, Mr Byrne departed to see the judge. Thus, according to the appellant and Mr Billing, Mr Byrne left to see the judge at a stage when the appellant had not decided to plead guilty.

53 There were several internal inconsistencies in the appellant’s evidence, generally. He shifted ground whenever he thought it to his benefit to do so. I do not regard him as a credible witness. There is therefore little point in recording his testimony on this issue, and I shall not do so.

54 According to Mr Billing, when Mr Byrne returned from seeing the judge, he said words to the effect:

“The Crown Prosecutor and I have just been speaking with the judge and she is genuinely concerned about you and does not want to have to convict you on the more serious charge if the jury finds you guilty on that charge. If this happens she will have to sentence you accordingly. She thinks that because of the way the evidence came out and particularly [the appellant’s wife’s] evidence that the jury may have formed a view about you which could put you at risk of being convicted of the more serious charge and she thinks the jury will probably on the evidence find you guilty of the less serious offence”.

55 Mr Byrne suggested that the appellant discuss what he had been told with his family. This occurred and, thereafter, the appellant told Mr Billing and Mr Byrne that he had decided to plead guilty.

56 A file note made by Mr Billing for 3 June 1999 was in evidence. This read:

“On second day of trial (see file note) offer by Crown to accept plea on secondary indictment indecent assault[. J]udge strongly recommended [the appellant] take this course as likely could be convicted on more serious charge …”

57 Mr Kotarski testified that at lunch on 3 June 1999, he spoke to the appellant about whether he should plead guilty. The appellant had not yet made a decision. He told Mr Kotarski that his lawyers had spoken to the judge who advised them that he should plead guilty to the lesser charge.

The Byrne Version

58 Mr Byrne testified that at the end of the luncheon adjournment the appellant had still not made a decision and needed more time. A message was sent to Karpin DC and further time was granted.

59 According to Mr Byrne, at about 2.45 pm on 3 June 1999, the appellant told Mr Billing in Mr Byrne’s presence that he had decided to plead guilty to the charge of indecent assault. These instructions were entirely unconditional. Mr Byrne then suggested to Mr Billing that he obtain written instructions concerning the plea of guilty.

60 Mr Byrne and Mr Lerve thereupon attended upon Karpin DCJ. They informed her of the plea and she said that if the jury had found the appellant guilty of the sexual intercourse charge she would have to have taken a very serious view of it. Mr Byrne asked Karpin DCJ permission to tell the appellant what she had said and she agreed. She said she would herself say something to the appellant when the court resumed.

61 At first Mr Byrne said that he was uncertain why he made that inquiry of the learned judge but, at a later stage in his evidence, he said:

“Well, [the appellant] had a difficulty in acknowledging the situation in which he was and in which I perceived to have been anyway. I had already told him that if he were convicted of the more serious charge that he could expect a substantial sentence. He knew that. I had told him that. That he would get a lesser sentence, of course, if he were convicted of the lesser charge. I believe that my purpose in wanting [the appellant] to know what the judge said was to make him feel more comfortable about the decision he had made …”

62 Mr Byrne’s account of what occurred after lunch had not always been the same. When Mr Byrne was cross-examined, he accepted that four days earlier (that is, four days before he testified) he had told Mr Game that he had gone to see Karpin DCJ for the purpose of getting more time pending the obtaining of instructions on the plea of guilty. In other words, his statement to Mr Game was entirely consistent with the evidence of the appellant and Mr Billing.

63 Further, Mr Byrne accepted that, four days earlier, he had told Mr Game that Karpin DCJ said to him that if the appellant was found guilty of the main charge:

“She would have to take a very serious view of it”.

had been

64 Mr Byrne said that after re-reading the transcript of the evidence given at the trial (and, in particular, the remarks that Karpin DCJ had made in the course of sentencing the appellant) he had concluded that the information he had so given Mr Game was wrong.

65 An affidavit by Mr Lerve, the Crown Prosecutor, was filed. According to this affidavit, at about 2.00 pm on 3 June 1999, Mr Byrne spoke to Mr Lerve and said that the appellant would be pleading to the alternate count. It was then agreed between Mr Lerve and Mr Byrne that they should attend upon Karpin DCJ in chambers and inform her Honour of what was to take place. The affidavit by Mr Lerve proceeded:

“My recollection is that Mr Byrne said to her Honour, in my presence and hearing, words to the effect of ‘My client will be pleading to the alternative count’. It is my recollection that prior [sic] [counsel] saying those words, her Honour had said nothing more to either Mr Byrne or myself other than words to the effect of, ‘Good afternoon gentleman’, or some similar type of greeting”.

As I have mentioned, Mr Lerve was not cross-examined.

66 Once the appellant had decided to plead guilty, Mr Byrne suggested to Mr Billing that he obtain written instructions from the appellant. Mr Billing then wrote out a form of written instructions and read the words to the appellant as he wrote them.

67 The appellant signed the instructions which were as follows:

“I confirm my instructions as at 2.45 pm today to plead guilty to the lesser charge of indecent assault in making that decision I have had regard to the view expressed by the judge that there is a distinct possibility that I may be convicted of the more serious charge the probability that I will be convicted of the lesser charge. I have taken into account the additional gaol term I would face if convicted of the more serious charge and the lesser term I can expect to receive on pleading guilty to the lesser charge now while the offer is available. I have also taken into account my own assessment of the way the evidence in the case is going and the probability that the jury will convict me of the lesser charge and the distinct possibility that I could be convicted of the more serious charge.

”

68 Mr Byrne was not able to remember when he first read the written instructions. He did say, however, that it would not have been long after they were signed. My impression of the general tenor of Mr Byrne’s evidence was that he had read the instructions by the end of 4 June 1999.

69 Mr Byrne said that when he read the instructions he was surprised that it recorded that the appellant had had regard to what the judge had said. He was surprised because, according to him, the appellant had made up his mind to plead guilty before the written instructions were signed and the instructions recorded that in making the decision to plead guilty, the appellant had had regard to the views expressed by the judge. Mr Byrne accepted that the instructions were false in that respect.

70 Mr Byrne initially said that the false statement in the instructions caused him some concern. Later, he said that it did not. In any event, he took no steps to remedy the position.

71 After the written instructions had been signed, the court reassembled, the appellant was eventually reindicted, a plea of not guilty was entered to the first count and a plea of guilty was entered to the alternative count. Mr Lerve then accepted that plea of guilty in full discharge of the indictment presented against the appellant.

72 The judge was formally informed in open court that the appellant was to plead guilty to the alternate count. She then said:

“Well, I can only say this to you, that I regard that as a wise decision in view of the way in which the Crown evidence has emerged in this trial and you no doubt appreciate that in pleading guilty to the alternate charge and indeed in entering a plea of guilty even at this late stage the Court is bound to give you some mitigation of the penalty which would otherwise be imposed upon you were the jury to have returned a verdict of guilty in respect of certainly the first count but even of the second count”.

73 According to the appellant, at the very moment he decided to plead guilty, he decided, also, that he would appeal. He said that he thought, by pleading guilty, he would “protect” the defence evidence. He said:

“I felt that if the trial had have continued the way it was going more evidence would have been damaged or wouldn’t have been brought out in the way that I felt it should have been …”

74 According to the appellant, immediately after pleading guilty, while he was in the holding cell, he maintained that he was innocent. The appellant asked Mr Byrne there and then about an appeal and was told “you can also appeal, … there is no time limit”.

75 According to both Mr Byrne and Mr Billing, there was some discussion between the appellant and Mr Byrne before he was sentenced concerning a possible appeal. They both said, however, that it was not made clear whether the appeal that the appellant had in mind concerned conviction or sentence. They understood him to be referring to a possible appeal against sentence should that turn out to be higher than expected.

76 According to Mr Byrne, at some period after the appellant was convicted and before he was sentenced he, Mr Byrne, was told by Mr Billing that the appellant had changed his mind about pleading guilty and that later that he had changed his mind back again.

Factual findings as to what the appellant was told concerning the judge’s views

77 I have already expressed the view that the appellant was not a reliable witness.

78 Mr Billing’s note of 3 June 1999 tells against his general accuracy as an observer. Understandably, he had some difficulty recalling with accuracy precisely what had occurred. Nevertheless, I thought he was an honest witness.

79 I had some difficulties with Mr Byrne’s evidence. I was particularly concerned with the changes in his testimony after he first spoke to Mr Game. I thought he had a tendency to reconstruct what had occurred. I was not satisfied that his testimony was generally reliable, in the sense of being accurate.

80 A crucial area for resolution is whether the written instructions accurately reflected what had occurred. That is, did Mr Byrne report the judge’s views to Mr Billing and the appellant before the appellant decided to plead guilty, or thereafter. Mr Billing was not pressed by the Crown as to whether he was correct in saying that the reason for Mr Byrne seeing the judge was to obtain more time to enable the appellant to decide whether to plead guilty. On the other hand, Mr Game did not cross-examine Mr Byrne directly as to his evidence that he saw the judge to tell her that the appellant had decided to plead guilty.

81 But for the affidavit of Mr Lerve, I would have preferred Mr Billing’s testimony to that of Mr Byrne. That is because of my general views as to their reliability as witnesses and also because of the specific terms of the written instructions. But Mr Lerve’s uncontested testimony was that he and Mr Byrne saw the judge to tell her that the appellant was pleading guilty. That is powerful support for Mr Byrne.

82 In the end I am not persuaded on a balance of probabilities that the appellant was told of the judge’s views before he decided to plead guilty.

83 Nevertheless, it is quite plain in my view that at least when the written instructions were read out to the appellant by Mr Billing, the appellant was informed of the judge’s supposed views as recorded therein.

84 On the evidence before the Court I am not able to come to a conclusion as to whether Mr Byrne incorrectly reported the judge as expressing the views set out in the written instructions or whether Mr Billing was responsible for the incorrect record of the instructions. In any event a decision on this issue is not relevant to the resolution of this appeal.

85 Mr Byrne said that the Crown first offered the plea at about 11.30 am on 3 June 1999. Mr Lerve said that he first offered the plea prior to the jury being empanelled on 2 June 1999. Accepting Mr Byrne’s evidence that he told the appellant of the plea at about 11.30 am on 3 June 1999, it is clear that for about three hours the appellant resisted the idea of pleading guilty. Both Mr Byrne and Mr Billing had given him strong advice that his case was going badly, and he was of the same view. Nevertheless, throughout this period he was reluctant to plead.

86 I have referred to Mr Byrne’s evidence that the appellant had difficulty in acknowledging the situation which he was in and the fact that Mr Byrne’s purpose in wanting the appellant to know what the judge said was “to make him feel more comfortable about the decision he had made …”.

87 Mr Billing accepted that the news of the judge’s views was an important factor in persuading the appellant to plead. The appellant, himself, when asked in cross-examination, what effect the judge’s views had on his decision to plead guilty he said, “I think that virtually swung it that way”.

88 I appreciate that I have not found that the advice as to the judge’s views brought about the appellant’s decision to plead guilty, but it is a very easy step in the light of all the evidence to find that the report as to the judge’s views must have been important in persuading the appellant to maintain his decision until the plea of guilty was entered. In my opinion, that is what occurred.

89 The issue can be approached in another way. In Rosenberg v Percival (2001) 75 ALJR 734; [2001] HCA 18, McHugh J at para 44 observed:

“Courts frequently make findings as to states of mind based on nothing more than the objective facts and probabilities of the case. But usually such findings refer to the mental state that simultaneously accompanied some act or omission of a person. … The very doing of the act or the omitting to do the act, when considered in its context, generally throws much light on the mental state of the person concerned”.

90 The state of mind that I am now dealing with is that of the appellant when deciding to maintain his decision to plead guilty from the time he was told of the views expressed by Karpin DCJ until he entered his plea. It was of course open to him to change his mind. He did not do so and eventually he caused his plea to be entered. On the objective facts and probabilities of the case, I conclude that the information given to him as to the views allegedly expressed by Karpin DCJ influenced him in maintaining his decision to plead guilty to the lesser charge.

91 There were several causes for the appellant’s decision to plead guilty to the lesser charge and to maintain that decison until the plea was entered. One of these was his fear that he might be found guilty on the more serious charge. Another was that if he pleaded guilty he was likely to receive some discount. Yet another was that in some misguided way he thought he could ‘protect” the witnesses who were to testify on his behalf by not having them testify before a judge whom he believed to be hostile and in a case where the evidence that had been led had gone against him.

92 These were tactical reasons. They have to be seen in context. The appellant fully understood that, by pleading guilty, he was announcing to the world at large that he was indeed guilty. I do not accept that once he decided to plead guilty he attached any conditions to his plea. The plea was made unconditionally, with full knowledge of what it entailed. It was made knowingly and deliberately, after weighing up all the known relevant circumstances.

93 I appreciate that in Maxwell v TheQueen Dawson and McHugh JJ said at 511 that even the “desire to gain a technical advantage” may result in a plea of guilty not being an admission of guilt. With respect, however, I do not understand a “technical advantage” to apply to or include the situation where an accused person, without any undue or improper pressure, freely and voluntarily makes a decision to plead guilty to one offence, not because he believes that he is guilty, but because he thinks that this is a good way of avoiding the risk of being found guilty of other offences, or of receiving a reduced sentence, or of protecting his evidence with a view to bringing an appeal at a later stage.

94 As long as the decision to plead guilty was made freely and voluntarily, the decision stands. This is the necessary corollary of the principle laid down in Maxwell v TheQueen at 511 that if the plea of guilty is genuine, and the accused person knows what he is doing, he may, for “whatever reason” insist on pleading guilty.

95 It follows, therefore, that the sole argument on which the appellant may rely is that, despite the other reasons that operated on his mind, the advice given to him as to the opinions expressed by Karpin DCJ procured his plea by improper pressure and thereby resulted in an absence of a free choice on his part. In essence this is a question of causation.

96 Although this question arises in the course of criminal proceedings, it is not the usual kind of causation question well-known to the criminal law, that is, whether the Crown has proved beyond reasonable doubt that a particular act led to a particular result.

97 In Chappel v Hart (1998) 195 CLR 232 Gaudron J at 238 said:

“Questions of causation are not answered in a legal vacuum. Rather, they are answered in a legal framework in which they arise.”

98 The legal framework derives from the very question of causation that arises. In the light of my findings, the relevant circumstances must be taken to be as follows. Firstly, there were several factors that initially caused the appellant to decide to plead guilty. Secondly, those factors did not include the information about the views allegedly expressed by Karpin DCJ. Thirdly, the appellant maintained that decision because of all those factors, plus the information about her Honour’s views. The question then is: in these circumstances, was the entering of the plea procured by improper pressure?

99 But I think there is more to say on the score of the legal framework in which the question falls to be answered.

100 The law regards the need for a plea of guilty to be freely and voluntarily made as a fundamental element of the administration of justice. Thus, as Brennan, Toohey and McHugh JJ said in Meissner v The Queen (at 142):

actus reus

101 It follows that legal practitioners who represent accused persons owe a duty to the court not to bring improper pressure to bear on their clients to plead guilty. In particular, that duty would be breached by a practitioner deliberately or negligently giving the client false information that the trial judge had expressed a particular opinion as to the prospects of the client being found guilty. Such a duty is part of the general duty not to corrupt the administration of justice which in turn is derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest or negligent practices.

102 Thus, part of the relevant legal framework is that false advice by an accused person’s lawyer that the trial judge had expressed views about that person’s prospects of being found guilty may constitute a breach of duty on the part of the lawyer and amount to improper pressure.

103 In these circumstances, it is appropriate to regard a decision to enter a plea of guilty as having been procured by improper pressure when such advice materially contributes to the maintenance (until the plea is entered) of an earlier decision to plead guilty. In my view, the advice will be regarded as having materially contributed to the maintenance of the decision if it was likely to influence the client in acting in the way that he or she in fact did act (cf Chappel v Hart per Gaudron J at 238 to 239, per McHugh J at 244 to 245, per Kirby J at 268 et seq).

104 I have concluded that the statement made to the appellant as to the views allegedly expressed by Karpin DCJ influenced him in maintaining his decision to plead guilty to the lesser charge.

105 In my opinion, the consequence is that the plea was procured by improper pressure of a most serious kind and was not made with a free choice. The fact that other reasons also contributed to that decision does not detract from this conclusion.

106 I have concluded that, in the circumstances, it follows inevitably that a miscarriage of justice has occurred, and whether there might be a real question about the appellant’s guilt is irrelevant.

107 Accordingly, I would uphold the appeal against conviction, allow the appellant to withdraw his guilty plea, set aside the conviction, and order a new trial.

108 In the light of my conclusions in regard to the appeal against conviction it is not strictly necessary for me to deal with the appeal against sentence. In case the matter should be taken further I shall express my views briefly in regard to the sentence appeal.

109 In my opinion, it was open to Karpin DCJ on the evidence to sentence the appellant on the basis that the indecent assault was but one of a series of like incidents. It was also open to her Honour on the evidence to sentence him on the basis that the indecent assault involved ejaculation on his part.

110 In arguing that the sentence was manifestly excessive, Mr Game drew attention to the fact that Karpin DCJ had accorded the appellant what she described as “a limited amount of mitigation of penalty” by reason of his plea of guilty. Her Honour said that this followed because of the lateness of the plea. In my view, this approach was entirely justified and there is nothing in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 to the contrary.

111 In my opinion, having regard to the seriousness of the offence, the sentence imposed was not excessive and was within discretion.

112 I turn now to the ground that the sentence miscarried by reason of the failure of Mr Byrne to obtain the appellant’s instructions with respect to the factual basis of the guilty plea and to put his case fully in regard to sentence.

113 The appellant was in fact sentenced on 11 June 1999. In his evidence, Mr Byrne said that there was no discussion between him and the appellant as to the factual basis upon which the appellant might be sentenced. In particular, there was no discussion between them about the appellant being sentenced on the basis that the charge to which he had pleaded guilty was but one of a multiplicity of incidents of indecent assault. Nor was there any discussion between them about the prospect of him being sentenced on the basis that he had an erect penis at the time he was in bed with the complainant and that he ejaculated at that time.

114 It came as a surprise to Mr Byrne that the appellant in fact was sentenced on the basis that the offence was one of a multiplicity of incidents and that he ejaculated at the time. I have held that findings to this effect were open to her Honour on the evidence. Nevertheless, at the relevant time, Mr Byrne did not think that the first mentioned finding would be made (because her Honour had told the jury that they had to look at the incident as one isolated event) and appears not to have applied his mind to the possibility of the latter finding being made (albeit that the Crown made submissions concerning the relevance of the ejaculation to the sentence that should be imposed).

115 The appellant had not admitted to Mr Byrne that there was more than one incident of the kind which formed the basis of his conviction and had denied that he had ejaculated while in the complainant’s bed. He was entitled to have his version in regard to these issues put to the learned judge. Not only was it not put, but after the Crown had made submissions in regard to sentence, Mr Byrne said:

“There is nothing that could be said in connection with the circumstances of the offences”.

116 In consequence, through no fault of the appellant, Karpin DCJ sentenced him on facts which to the knowledge of his counsel he did not admit.

117 In the circumstances I consider that the sentencing process miscarried and resulted in a miscarriage of justice. Had I not been of the view that the appeal against conviction should succeed, I would have proposed that the appeal against sentence be upheld and the matter be remitted to the District Court for re-sentencing.

118 HULME J: On 2 June 1999 the Appellant was indicted on two counts, one of having sexual intercourse with a girl of 6 years of age and the second, an alternative count, of indecent assault of her. The first charge carried a maximum penalty of 20 years imprisonment, the second of 10 years imprisonment. He pleaded not guilty. On 3 June 1999 the Crown indicated it was willing to accept a plea to the second count in full satisfaction of the indictment and the Appellant decided to accept that offer. He so indicated. He was re-indicted, pleaded not guilty to the first count and guilty to the second and shortly thereafter the jury brought in verdicts in accordance with those pleas.

119 On 11 June Judge Karpin sentenced the Appellant to imprisonment for a minimum term of 4 years and 6 months commencing on 3 June 1999 and an additional term of 2 years.

120 In these proceedings the Appellant appeals against his conviction and seeks to withdraw his plea. There is also an application to appeal against sentence.

121 In support of the conviction and plea claims, it has been submitted that:-

(i) advice to the Appellant to the effect that he was in serious jeopardy of being convicted on the more serious charge was grossly wrong in that there was no realistic prospect of such a conviction,

(ii) the Appellant was not adequately represented at his trial and that the complainant’s account of events was not properly tested in cross-examination,

122 Reliance was also placed on the fact and impact on the Appellant of advice he received as to what the trial judge either had or was reported to have said at about the time of the plea.

123 So far as the first two of these complaints are concerned, I am content to record my agreement with what Ipp AJA has said. I prefer to deal with the other matters in my own words. In summary the evidence concerning them is as follows.

124 According to the Appellant, during the morning of 3 June - the precise time does not matter – his counsel informed him that the Crown had offered to drop the more serious charge if the Appellant pleaded guilty to the charge of indecent assault. The Appellant declined the offer.

125 At around lunch time counsel informed the Appellant that the trial was not going as well as had been expected and that he was becoming worried and the Appellant should think about the earlier offer over lunch. After lunch the Appellant again asserted he wanted to continue with the trial.

126 Later, at a time the Appellant describes as the next break, counsel said to him:-

“I’ve just spoken with the Judge in Chambers and she said to me that she doesn’t want to see you convicted of the more serious charges (sic) and strongly urges you to plead guilty to the lesser charge. She said that when we go back into court she is going to speak to you and urge you to do that.

127 According to the Appellant there was further conversation in the course of which he reiterated that he did not wish to plead guilty and, in the presence of his counsel his solicitor said:-

128 The discussion continued, counsel urging the Appellant to accept the Crown offer saying, inter alia,:-

129 Eventually the Appellant acquiesced saying:-

130 The Appellant’s solicitor requested the Appellant to provide written instructions. According to the Appellant he was going into shock and was so distressed that he could not think clearly nor write properly. His solicitor offered to write out the instructions. He did so and the Appellant signed the document. The instructions were in these terms:-

“I confirm my instructions as at 2.45pm today to plead guilty to the lesser charge of indecent assault in making (sic) that decision I have had regard to the view expressed by the Judge that there is a distinct possibility that I may be convicted of the more serious charge the probability that I will be convicted of the lesser charge.

131 The proceedings then resumed in court. The transcript is somewhat fuller than the Appellant’s account and I quote from it. Her Honour said:-

132 It was then the Appellant was re-indicted and convicted. No one said anything about the Appellant being innocent of both charges.

133 During oral evidence given during the appeal the Appellant acknowledged that it had been made clear to him that ultimately the decision about pleading was a matter for him. He identified a number of factors as having influenced him in his decision. Included in these were that he was unhappy with his legal representatives who had declined to introduce issues the Appellant saw as relevant and who had apparently not committed themselves to calling some witnesses the Appellant wanted on issues of both character and of lack of fear on the part of the complainant. He thought that unless there was a change of direction in the trial or unless his counsel did something of a different nature, the result would be adverse and it was desirable to stop the trial and “protect” some evidence. He thought the lawyers had made a mess of the trial.

134 Other reasons included:-

He thought it was in his interest to plead guilty to the lesser charge;

Because of the way the evidence was going he thought he was in danger of being convicted on the more serious charge which carried a longer gaol term;

As he had been told by his counsel, the trial was not going well;

His own assessment was that probably he would be convicted anyway. (Earlier in his evidence he had disagreed with this proposition.); and

135 The Appellant also said that he pleaded guilty because he was told that without doubt he would be convicted of the lesser charge and was in extreme jeopardy of being convicted of the higher charge as well. This information was largely provided by counsel “but it was backed up by Mr Billing and I do note the comments from the judge.”

136 So far as the reported statements of the judge were concerned, the Appellant said that he was influenced by these “because I felt that the judge had found in favour against me that I was being pre-judged.” (I have quoted the answer as transcribed. It may be that the transcript should have recorded a dash between “me” and “that”.) Asked elsewhere as to the effect of what the judge was reported to have said, the Appellant said, “I think that virtually swung it that way … because I felt that there was no hope.”.

137 The Appellant also said that when pleading guilty before Judge Karpin he did not understand that he was confessing to what was alleged against him. I shall refer further to this topic below.

138 On the hearing of the appeal, in addition to evidence from the Appellant, affidavits of a Mr Kotarski who was a friend or acquaintance and who was at court on the day, Mr Lerve who had been the Crown Prosecutor at the trial and both Mr Byrne and Mr Billing, respectively counsel and solicitor who had appeared for the Appellant were read. All of these persons except the Crown Prosecutor also gave oral evidence and were cross-examined. There were significant differences in the accounts of what occurred.

139 Among the issues which arise are:-

(i) when, relative to the Appellant’s decision to plead, any comments by the judge were made,

(ii) what were their terms, and

140 According to Mr Lerve, counsel attended on Judge Karpin only once and this was after Mr Byrne had said that the Appellant would be taking advantage of the offer to plead to the alternate count. Mr Lerve also said that the subject of sentence was not raised and he was confident that her Honour did not say words to the effect “I strongly recommend Mr Hogg enter a plea of guilty to the lesser charge, as it is likely that he will be convicted of the more serious charge.”

141 Mr Lerve said that he had no memory of Judge Karpin saying words to the effect:-

“There is a distinct possibility that Mr Hogg will be convicted of the more serious charge”, or

142 I should record also that Mr Lerve said that the sittings at which the Appellant was tried were very busy. Among other events 20 trials were disposed of, and he does not have a perfect memory of everything that occurred or that was said in each of the matters.

143 In his affidavit sworn on 19 July Mr Byrne also said that, so far as is presently relevant, he and the Crown Prosecutor attended on her Honour only once and that this was after the Appellant had decided to plead guilty and for the purpose of informing her Honour of the fact. Mr Byrne did acknowledge that in a telephone conference on Monday 16 July with Mr Game who appeared for the Appellant before this Court, he had said that the judge had been seen earlier with a view to obtaining more time for the obtaining of instructions on the issue of the plea but that he had subsequently read the transcript including her Honour’s remarks which I have quoted above and other documents and had been reminded that there had been only the one visit.

144 Mr Byrne said that when he and the Crown Prosecutor attended on her Honour in chambers to inform her of the change of plea -

145 Mr Byrne said that he had informed the Appellant of what the judge had said. In oral evidence Mr Byrne denied that the judge had urged the Appellant to do anything or that the Appellant had been informed to this effect.

146 Mr Byrne also deposed to having asked her Honour for, and been given, permission to pass on what her Honour had said. He was asked why he had sought this permission. At one stage he said that he was uncertain but probably to give the Appellant the feeling that he had made the proper decision. Later, in response to a similar question he said that the Appellant had difficulty in acknowledging the situation he was in or which Mr Byrne perceived him to be in and that he wanted the Appellant to feel more comfortable about the decision he had made.

147 Quite apart from reporting remarks of her Honour, Mr Byrne also provided to the Appellant his own assessment of how the trial was going. This was to the effect that it was going very badly and that the evidence since morning tea on the second day had worsened the Appellant’s position. A consideration of the transcript provides much support for this assessment.

148 Mr Billing said that his recollection was that counsel went to see the Judge only once but Mr Billing placed this visit prior to the Appellant’s decision to plead. Mr Billing’s account of the passing on of the Judge’s opinion was that Mr Byrne said:-

149 On the topic of the written instructions, Mr Billing said that he read this document to the Appellant as it was written and the Appellant appeared to read it before signing. Both Mr Billing and Mr Byrne say that the latter was not present when the document was being written. Mr Billing’s recollection was that Mr Byrne saw it soon after, while Mr Byrne said that he could not say more than that he saw it sometime between its signing and sentence a week later. Mr Byrne was cross-examined on the statement in the document to the effect that in making his decision the Appellant had regard to views of the judge which, according to Mr Byrne, were only expressed after the decision was made and the disparity between his account of what the judge had said and the statement in the document to the effect that the judge had said that there was a probability of the Appellant being convicted of the lesser charge.

150 Mr Byrne said that on reading the document he had been surprised at these matters. At one stage Mr Byrne said that he thought he expressed his surprise to Mr Billing. At another he said that he could not recall saying anything to Mr Billing about the signed instructions.

151 Given the extent of the inconsistency in the above evidence I have not found it easy to decide between the various accounts in relation to many of the issues that arise. However it is necessary, at least in the case of some, to do so. Given the difficulty, it is important to record that as it is the Appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating the fact – Boag (1994) 73 A Crim R 35 at 37 and to the extent to which this depends on the resolution of matters of fact, he bears the onus of establishing the necessary facts – R v Ross (unreported, CCA, 20 April 1994).

152 Firstly, I should say that the Appellant was an unimpressive witness. It is not necessary that I detail all of the factors and evidence which lead me to this conclusion but it may be appropriate to mention one topic. The Appellant gave evidence that he had 2 prior convictions for assault following pleas of guilty. In relation to those charges he had understood that by pleading guilty he was confessing what he had done. Nevertheless he asserted that when pleading guilty before Judge Karpin he did not understand that he was confessing to what was alleged against him. He said that he “was just saying that I was guilty to avoid a higher charge” and that he did not know what the plea involved. Mr Byrne conceded that there was no specific conversation between himself and the Appellant to the effect that by pleading guilty the Appellant was accepting that he was guilty of intending an indecent assault on the complainant.

153 It may not be irrelevant that the Appellant had devoted his time in gaol to researching aspects of the law, including cases on urgings by judges. But be that as it may, the Appellant’s evidence as to his prior pleas of guilty and the undisputed evidence of what had occurred leading to the charges before Judge Karpin lead inescapably to the conclusion that he did understand the principal significance of his plea, viz. that he had indecently assaulted the complainant at least to the extent of climbing into her bunk, pulling down his and her pants and lying against her with his penis adjacent to her genitalia or anus.

154 I am not persuaded that the Appellant’s agreement to plead to the lesser charge was accompanied by a statement to the effect that he was not guilty or that he wanted some notation to that effect made in court. It is in the highest degree improbable that any legal adviser could or would accept instructions to plead guilty accompanied by such a qualification and both the Appellant’s then counsel and solicitor deny that any such qualification was made. The Appellant made no attempt to accompany his plea of guilty by any such statement.

155 I am also not persuaded that counsel saw the Judge or that any purported communication of her Honour’s views occurred prior to the Appellant deciding to plead guilty. Given his change of recollection, one can not place a great deal of weight on Mr Byrne’s evidence in this regard, but the absence of challenge to it means that Mr Lerve’s evidence must be given considerable weight. Mr Billing’s recollection is, of course, to the contrary and on balance, so are the terms of the written instructions to which I have referred. On the other hand, those terms are also explicable on the basis that Mr Billing was concerned to have recorded all of the matters which did or may have operated on the Appellant’s mind that day and argued for the entry of a plea. Mr Byrne gave evidence, which I find easy to accept, that the Appellant seemed disposed to blame everyone else but himself.

156 It is appropriate to record also that the affidavits demonstrate that Mr Billing had a deal of difficulty in arriving at what he regarded as a satisfactory recollection of events. Furthermore, he was shown not to be meticulous in his documentation. Thus an entry in Mr Billing’s “Attendance Report” for costing purposes for 3 June 1999 is in terms:-

“on second day of trial (see file note) offer by Crown to accept plea on secondary indictment indecent assault Judge strongly recommended Kevin take this course as likely could be convicted on more serious charge after lengthy family discussions Kevin decided plead to secondary charge refused bail …” (sic)

157 Clearly the references to “strongly recommended” and “likely” are inconsistent with the tenor of the recollections of Messrs Lerve and Byrne and Mr Billing himself said that they were wrong. Mr Billing gave no satisfactory explanation for the error.

158 Thus I am not persuaded that the Appellant was told anything about views of the trial judge prior to his decision to plead guilty. Indeed, I think the probabilities are that he was not. That is not necessarily the end of the matter and I should therefore address the question of what the Appellant was told as to the judge’s remarks prior to making his plea.

159 Given my views of the Appellant’s credibility, I am not disposed to accept his version of the communications in preference to the accounts of others. Primarily because this accords with the probabilities I accept Mr Billing’s evidence that the terms of the written instructions were at least read to the Appellant. However I am not persuaded that previously her Honour’s views were reported to the Appellant any more strongly than deposed to by Mr Byrne. I acknowledge that, in reaching this view, I am not accepting what Mr Billing has said but I am not persuaded that his recollection was not unduly influenced by the terms of the written instructions. Furthermore, I am not persuaded that Mr Byrne saw the written instructions prior to the plea being entered.

160 Mr Byrne’s account is, of course, not significantly more forceful than her Honour’s remarks recorded on the transcript.

161 I turn to the principles of law which apply in this situation. Firstly, there is no doubt that, notwithstanding the Appellant’s plea, the Court does have power to allow the appeal, set aside the conviction and allow the Appellant to withdraw that plea. The foundation of that power lies in the terms of s6 of the Criminal Appeal Act which, subject to a proviso not presently relevant, requires the Court to allow an appeal if there has been a miscarriage of justice.

162 However it is clear law that a person of sound mind and understanding is entitled to plead guilty if he wishes - see Maxwell v R (1995-1996) 184 CLR 501 at 511 - and “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 into it is not in truth guilty of the offence.” - Meissner v R (1994-1995) 184 CLR 132 at 141. See also at 157 and Maxwell v R (1995-1996) 184 CLR 501 at 511. (Whatever may have been meant by “technical advantage” where used on the last mentioned page, I do not regard it as qualifying the statement I have quoted.)

163 The Court was pressed with statements such as those in R v Murphy (1965) VR 187 at 191, R v Davies (unreported, CCA, 16 December 1993), Boag (1994) 73 A Crim R 35 at 36, R v Cincotta (unreported, CCA, 1 November 1995), R v Ganderton (unreported, CCA, 17 September 1998), R v Hura [2001] NSWCCA 61 and R v Wilkes [2001] NSWCCA 97 to the effect that a plea not attributable to a genuine consciousness of guilt should be set aside. It may well be that reference to a consciousness of guilt was an appropriate test in the circumstances of those cases and obviously any conclusion that a plea was entered in circumstances other than a genuine consciousness of guilt is calculated to inspire questions whether the ingredients essential to its validity and to which the High Court referred in the cases cited were present. However, insofar as the cases to which I have referred suggest that a genuine consciousness of guilt is always necessary, and with due respect to the contrary view expressed in R v Toro-Martinez [2000] NSWCCA 216 at [23-24], those decisions are inconsistent with what was said in the passage from Meissner v R which I have quoted in the immediately preceding paragraph.

164 Thus I do not find it necessary to embark on a consideration of whether the Appellant in fact believed himself guilty of the offence of which he was convicted. The ultimate test is whether there has been a miscarriage of justice - see R v Davies (unreported, CA, 16 December 1993) - but to my mind the issue in this case is whether the Appellant’s plea was “entered in exercise of a free choice in the interests of the” Appellant. The reference to “in the interests” of the person pleading must mean “with a view to those interests” - see e.g. Meissner v R at p143. It is not to the point that the choice to plead may later be thought, on some balancing of the unmeasurable advantages and disadvantages incidental to the plea, to have been unwise or one that is regretted.

165 As in other areas of the law, there are many circumstances which may make a choice one which is not fairly characterised as “free”. Descriptions in Meissner of circumstances which would deny that a choice was free are where it was the result of “pressure and threats” (p142), intimidation or overbearing (p148), improper inducement or fraud (p157), and improper pressure (p159). In R v Chiron (1980) 1 NSWLR 218 at 220, Street CJ regarded a plea as not free and voluntary when it was the result partly of an erroneous decision to admit certain evidence of such significance that the judge referred to it as “sudden death” to the Appellant’s case and his counsel said that he could (only) “try to defend” and partly of such remarks.

166 Cases dealing with out of court confessional statements contain many other references to circumstances where t hey will not be regarded as free and voluntary.

167 On the other hand, it is important to recognise that “pressure” in the above context has its limitations. As was said by Brennan, Toohey and McHugh JJ in Meissner v R, at 143:-

“Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.

168 See also at p149 (per Deane J). And there can be no doubt that persuasion or advice may be expressed in strong terms – see e.g. R v Cincotta (unreported, CCA, 1 November 1995).

169 Upon the findings of fact which I have made there can be no doubt that the Appellant’s decision to plead guilty, made prior to counsel seeing the trial judge was made in the exercise of a free choice. Is it of consequence that what were said to have been views of the judge were then communicated to him? Clearly what was said was of a nature calculated to influence someone who was undecided or having second thoughts but I am not persuaded that the Appellant was in that situation. After lengthy reflection, he had made a decision and he was apparently so far committed to it for the judge to be informed. The Appellant was, of course, still free to change his mind but while I do not say it has never happened, I am not aware of any situation where someone as committed as the Appellant then was has done so. In these circumstances I am not persuaded that the judge’s reported views in fact operated as any inducement leading to the Appellant’s public plea of guilty.

170 In so concluding I do not deny the theoretical possibility that the Judge’s views may have led the Appellant not to reconsider or to change his mind. However he gave no evidence to this effect and it does not seem to me it is a matter which, in the face of his silence on the topic, the Court should assume.

171 Furthermore, I am not persuaded that the expression of a judge’s views or their communication to an accused necessarily means that a decision to plead guilty induced by them is a decision not made in the exercise of a free choice. Whether it is or not in any particular case is simply a question of fact and I am unable to take the view that there is something so commanding in any expression of a judge’s opinion that any decision made thereafter is to be presumed, irrefutably or not, to be made either not in the exercise of freedom of choice or as the result of improper pressure. The law has moved past the development of new legal fictions. Thus, as was the Victorian Court of Criminal Appeal in R v Pinhassovitch (unreported, 7 February 1994), I am unable to accept the view advanced by Lord Parker CJ in R v Turner (1970) 2 QB 321 at 326 which Ipp AJA has quoted.

172 There remains the question whether, irrespective of the actual or proved impact on the Appellant of the reported views of the trial judge, a miscarriage of justice should be held to have occurred simply because prior to the actual entry of the plea either, the judge expressed views which were communicated to the Appellant, or the representation of those views to the Appellant, at least to the extent to which the terms of the written instructions were communicated, was misleading.

173 So far as the first of these matter is concerned while it is clearly preferable that judges keep to their allotted roles, I see no need to engraft on the established principles laid down by the High Court as to when a plea may be, or lead to, a miscarriage of justice yet another to the effect that a miscarriage of justice will have occurred whenever a plea of guilty is entered following the communication to an accused of what are, or are reportedly, the views of the presiding judge as to the wisdom of such a course or as to the likely result of a trial.

174 So far as the misleading representation of the judge’s views is concerned, I see no reason to treat such a communication differently from any other made in circumstances such as to possibly bear on the entry of a plea. If by evidence or inference it is shown that the plea was not made in the exercise of free choice, or was the result of improper pressure, then a miscarriage has occurred. If the misrepresentation was of a nature or made at a time calculated to influence the decision, then inducement will be readily inferred. However, it is clear law that inducement must be shown. Thus in R v Cincotta (unreported, CCA, 1 November 1995) Hunt CJ at CL, with whom Grove and Allen J agreed, said:-

175 On the issue of his conviction, the Appellant has not established that there was any miscarriage of justice and he should not be allowed to withdraw his plea. The appeal against conviction should be dismissed.

176 However, for the reasons given by Ipp AJA, there was a miscarriage of justice in relation to the Appellant’s sentence. In that regard leave to appeal should be given, the appeal upheld, the sentence quashed and the Appellant re-sentenced. Given that there are issues of fact to be resolved on the basis of evidence by the complainant and the Appellant, the matter should be remitted under s12(2) of the Criminal Appeal Act to the District Court for this to occur.

: I agree with Ipp AJA.

**********

Citations

R v KCH [2001] NSWCCA 273

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Statutory Material Cited

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CITATION:	Regina v KCH [2001] NSWCCA 273 revised - 6/14/2002
FILE NUMBER(S):	CCA 60410/99
HEARING DATE(S):	16/07/01, 20/08/01,21/08/01
JUDGMENT DATE:	19 September 2001
PARTIES :	Regina v KCH
JUDGMENT OF:	Ipp AJA at 1; Hulme J at 118; Sperling J at 177

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/61/0149
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ

COUNSEL :	T A Game SC/M A Marty (Appellant) M C Grogan (Crown)
SOLICITORS:	D Humphreys (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - Withdrawal of guilty plea - miscarriage of justice - inappropriate advice - improper pressure - legal representatives told appellant of alleged comments of trial judge as to his likelihood of being convicted - whether it is sufficient for the pressure to be one of a number of factors leading to the decision to plead guilty - tactical advantage in pleading guilty - duty of legal representatives not to bring improper pressure on clients to plead guilty. - CRIMINAL LAW - Sentence - miscarriage of justice - failure of counsel to obtain instructions as to factual basis of matter to be argued on sentence. D
LEGISLATION CITED:	Criminal Appeal Act 1912
CASES CITED:	Liberti (1991) 55 A Crim R 120 Boag (1994) 73 A Crim R 35 R v Wilkes [2001] NSWCCA 97 Meissner v The Queen (1995) 184 CLR 132 Maxwell v The Queen (1996) 184 CLR 501 Kouroumalos [2000] NSWCCA 453 Whitehead [2000] NSWCCA 400 Favero [1999] NSWCCA 320 Ganderton (Unreported, NSWCCA, 17 September 1998) Wilde v The Queen (1988) 164 CLR 365 R v Turner [1970] 2 QB 321 The Queen v Pinhassovitch (Unreported, Supreme Court of Victoria, CCA, 7 February 1994) R v Boyd [2000] NSWCCA 110 R v Inns (1974) 60 Cr App R 231 Rosenberg v Percival (2001) 75 ALJR 734 Chappel v Hart (1998) 195 CLR 232 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Ross (Unreported, CCA, 20 April 1994) R v Murphy (1965) VR 187 R v Davies (Unreported, CCA, 16 December 1993) R v Cincotta (Unreported, CCA, 1 November1995) R v Hura [2001] NSWCCA 61 R v Toro-Martinez [2000] NSWCCA 216 R v Chiron (1980) 1 NSWLR 218
DECISION:	By Majority (1) Appeal upheld (2) Allow appellant to withdraw his guilty plea (3) Conviction set aside (4) New trial ordered.