R v Kite - [2011] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KITE
[2011] SADC 51
Reasons for Decision of His Honour Judge Rice
14 April 2011
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Defendant pleaded not guilty initially - after detailed advice and time to consider, she signed instructions that she intended to plead guilty notwithstanding a possible defence - after plea of guilty, the defendant reflected that there was a possible view of the facts on which a jury might acquit.
Held: no miscarriage of justice - application dismissed.
R v Pugh (2005) 158 A Crim R 302; R v Brooks (2007) 96 SASR 478; R v Clayton (1984) 35 SASR 232; R v Hura (2001) 121 A Crim R 472; R v Walkuski [2007] SADC 121, considered.

R v KITE
[2011] SADC 51
Introduction

This is an application by the defendant to withdraw her plea of guilty to the offence of aggravated robbery. She pleaded guilty to that offence on 23 August 2010.
The basis for the application is that, following wrong advice, she was misinformed and misunderstood the strength of the prosecution case and felt pressured to plead guilty even though she was not guilty. I return to this topic in more detail below.
Facts and history of the proceedings
Prosecution case
The defendant was charged with the offence of aggravated robbery. It was alleged against her that, at about 4.27 a.m. on Tuesday, 16 February 2010 at North Adelaide, she threatened to use force against the victim to commit theft of $650.00 from K-Food Express. It was alleged that the offending was aggravated by the use of two offensive weapons, a pair of scissors and a blood-filled syringe. She is alleged to have said to the victim, “I am sorry to do this to you brother, but I need the cash, give me all your money.” It was at that stage that she took the two offensive weapons from her pocket and pointed them towards the victim.
The K-Food Express convenience store is at 55a O’Connell Street, North Adelaide. The offender fled down O’Connell Street and got into the front passenger seat of an idling car waiting on the south side of Archer Street, facing west, about 20 metres from the O’Connell Street intersection. The victim described the car as a gold coloured 1980s Holden Commodore Station Wagon with shiny wheel covers.
The victim described the offender as a female, Aboriginal, with light brown skin, 20-21 years old. She was about 170 centimetres tall and skinny build. She was wearing a grey hooded top.
The CCTV footage of the robbery obtained from the K-Food Express was viewed by an officer from the Adelaide CIB on 16 February 2010. He recognised the offender as this defendant. It was also viewed by an officer from Eastern Adelaide CIB who also recognised the defendant. Both officers had had dealings with the defendant and a man with whom she was keeping company, Kevin Hartill. As it transpired, the defendant was wanted in relation to a Parole Board Warrant issued on 15 February 2010.
On 17 February 2010, Hartill attended the Norwood Police Station to sign a bail card as part of a bail agreement on another matter. He was accompanied by the defendant. She was then arrested on the Parole Board Warrant.
A search of the defendant’s handbag revealed a pair of scissors (blue handle) plus a number of syringes and needles. No syringe was filled with blood (or the like), but one had what appeared to be a little blood (or the like) in the cap and base of the syringe.
The victim was shown a group of photographs (that included the defendant) as part of a photographic identification. The declaration of the police officer who showed the victim the photographs, Senior Constable Roberts, asserts that the victim made a positive identification of the accused. The victim’s statement on this topic supports that result, although the separate statement relating to the conversation at the time of the process, is less certain. Upon being shown the photographs, the victim is recorded as saying, “Could be No 4. I remember her eyes.” (That was a photograph of the defendant.) The victim then signed the statement apparently on the basis that it was the person involved in the matter under investigation. There is sufficient uncertainty on the statements for this not to be regarded by me as a positive identification.
Committal and District Court appearances
The defendant was committed to appear in the District Court on 5 July 2010. At first appearance, the arraignment was deferred because of the late provision of additional statements. Mr Bowen appeared for her on that occasion. Mr Bowen was then working for Mr R. Colthorpe.
On 19 July 2010 she was arraigned for the first time and pleaded not guilty. Again Mr Bowen was acting for her. A directions hearing for 19 August 2010 was fixed.
On 19 August 2010, Mr Colthorpe, who then appeared for the defendant, asked that the matter be put into the arraignment list. The date of 23 August 2010 was then fixed.
On 23 August 2010, the defendant appeared before me and pleaded guilty to aggravated robbery. Mr Bowen again appeared for her and 13 October 2010 was set for submissions.
On 13 October 2010, Ms Leonardos appeared for the defendant. The instructions of the previous solicitor had been terminated. Ms Leonardos asked the matter be adjourned to enable a psychological report to be prepared for the purposes of sentence. The date of 7 December 2010 was fixed for submissions.
On 7 December 2010, Mr Graham, from Vadasz Lawyers, appeared for the defendant. Mr Graham advised that the defendant wanted to vacate her plea of guilty because of incorrect advice and “almost an inducement…to plead guilty.” The matter was adjourned for mention on 16 December 2010 on which date it was confirmed that the application would proceed. I ordered that the application and affidavits in support be filed by 21 December 2010.
The matter was then adjourned to 14 January 2011 to ensure that the parties were ready, and 28 January 2011 was set for evidence and submissions. Evidence and submissions were taken on that day and 11 February 2011. I then reserved my decision.
The written application
For the sake of completeness, I reproduce the defendant’s application:
1.This is an application to withdraw a guilty plea.
2.The Applicant, Diana Alisha Kite, was charged on District Court Information dated 5 July 2010 with one count of aggravated robbery.
3.At arraignment on 19 July 2010, the Applicant was arraigned and pleaded not guilty.
4.At a Directions Hearing on 19 August 2010 Counsel for the Applicant indicated that the matter be resolved by way of guilty plea.
5.On 23 August 2010 the Applicant was arraigned and entered a plea of guilty.
6.The basis for the application is as follows:
i.     Prior to the Directions Hearing on 19 August 2010, the Applicant was visited by her Solicitor, Gerry Bowen in the cells of the Sir Samuel Way Building.
ii.    During that meeting the Applicant was given advice concerning the charge.
iii.     The Applicant understood the effect of the advice to be that she would be better off to plead guilty.
iv.     The Applicant understood the advice to mean that she would be found guilty at Trial.
v.    The Applicant felt like she had no choice but to plead guilty.
vi.     The guilty plea was made as a result of the Applicant’s understanding of this advice.
vii.    The Applicant denies the offence.
Again for the sake of completeness, I reproduce the defendant’s affidavit in support:
1.I am the Applicant herein.
2.Prior to instructing Vadasz Lawyers, I had instructed Colthorpe Lawyers to act for me in relation to the charge of aggravated robbery (the current charge).
3.Prior to my first arraignment for the current charge, I was visited in the Adelaide Women’s Prison by Ross Colthorpe.
4.On that occasion Mr Colthorpe showed me CCTV footage of the robbery, witness statements, photos of exhibits and a copy of the photo ID pack.
5.I was told that the witness to the robbery had picked a photograph of me from the photo ID pack.
6.At my first arraignment on 19 July 2010 I pleaded not guilty.
7.Prior to my Directions Hearing on 19 August 2010, I was visited in the basement cells of the Sir Samuel Way building by Mr Gerry Bowen.
8.Mr Bowen told me that I needed to make up my mind that day whether I would plead guilty or not.
9.He told me I would get a 25% discount on my sentence.
10.He mentioned to me that I had been found guilty of something similar before and asked me whether I thought I would be found guilty again.
11.Mr Bowen mentioned the various pieces of evidence against me.
12.At this stage I felt that I would be better off pleading guilty regardless of whether I was guilty of the charge or not.
13.I felt that I would be better off pleading guilty because I was given the impression that I would be found guilty after Trial anyway and get a longer sentence.
14.I cannot remember whether I signed any instructions or not.
15.I felt pressured to plead guilty on that occasion.
16.After receiving advice from Gerry Bowen on that occasion I felt certain that I would be found guilty.
17.At the Directions Hearing the Court was told that I would be changing my plea to guilty and the matter was listed for arraignment.
18.I cannot remember whether anyone saw me prior to my second arraignment on 23 August 2010.
19.I pleaded guilty at my arraignment.
20.At the time I pleaded guilty I had been in custody for some months.
21.I am not guilty of the offence of aggravated robbery.
22.I know the facts deposed herein to be of my own knowledge and belief except where otherwise appears.
The defendant waived legal professional privilege to enable her original solicitors to discuss her instructions.
Legal principles that apply
The ultimate question to be answered is whether there would be a miscarriage of justice if the plea was allowed to stand: R v Pugh[1], R v Brooks[2]. The defendant bears the onus of demonstrating to the Court that a miscarriage of justice would result if the plea could not be withdrawn: R v Clayton[3].
[1] (2005) 158 A Crim R 302 (at paras 32-33)
[2] (2007) 96 SASR 478 (at para 6)
[3] (1984) 35 SASR 232 at 234, per Wells J
In R v Hura[4], Spigelman CJ listed some of the factors which may require a trial Judge to allow a defendant to withdraw a plea. Those factors were:
•where the defendant did not appreciate the nature of the charge to which the plea was entered;
•where the plea was not a free and voluntary confession;
•where the plea was not really attributable to a genuine consciousness of guilt;
•where there was mistake or other circumstances affecting the integrity of the plea as an admission of guilt;
•where the plea was induced by threats or other impropriety when the defendant would not otherwise have pleaded guilty;
•where the plea is not unequivocal or made in circumstances suggesting it is not a true admission of guilt; and
•where the defendant who entered the plea was not in full possession of all of the facts and did not entertain a genuine consciousness of guilt.
[4] (2001) 121 A Crim R 472 at 478
I repeat what I said on this topic in R v Walkuski[5]:
[5] [2007] SADC 121 (at paras 6-8)
From this list it can be seen that there are essentially two broad categories of factors which may be cited by a defendant in an application to withdraw a plea of guilty. They are:
•fundamental error on the part of the defendant as to the nature of the plea entered, the charges faced or the circumstances of the case; and
•an absence of genuine consciousness of guilt. This factor was described as relevant but not decisive by Doyle CJ in Pugh (at [40]).
Doyle CJ stated in Pugh and reiterated in Brooks that a defendant may be held to a guilty plea where that plea is made ‘upon grounds that extend beyond that person’s belief in his guilt’. This simply acknowledges that there may be any number of reasons for which a defendant may enter a plea of guilty to an offence. So long as the defendant understands the nature of the charges and the plea, is not placed under any improper pressure etc, and the plea is entered out of a genuine consciousness of guilt, it does not matter what other factors may have influenced the defendant to enter a guilty plea.
In summarising the application to withdraw a guilty plea in Brooks, Doyle CJ stated (at [84]):
This is nothing more than a case of an accused person who has pleaded guilty, but on reflection has realised that there is a possible view of the facts on which a jury might acquit. But that cannot detract from the effect of the admission of guilt, having regard to the circumstances under which that admission was made.
This is consistent with Maxwell v The Queen (1995-6) 184 CLR 501 in which Dawson and McHugh JJ stated that a plea of guilty constitutes an admission by the defendant of all elements of the offence.
Evidence in support of the application
Leaving to one side other background matters, the defendant acknowledged that, at the time of her arrest for this matter, she was in a relationship with Kevin Hartill.
She said that, at one stage after the proceedings commenced, Mr Colthorpe came to see her (T7):
A.He showed me the evidence and just the impression I got, because I asked him if I should plead guilty or not guilty, and he said that if I plead guilty I would get a discount off my sentence, because I was scared that they wouldn’t give me it because I’d done something like this before.
Q.Can you remember what evidence Mr Colthorpe showed you in prison.
A.Just the CCTV footage and pictures of a pair of scissors that were in my handbag and a syringe.
Q.Did he tell you whether you should plead guilty or you shouldn’t.
A.He didn’t actually tell me to plead guilty or not guilty, he just said that with the evidence that they had I would be better off pleading guilty because I would get a discount on my sentence.
She said she pleaded not guilty because she was not guilty.
She also said that Mr Bowen came to see her and said this (T8):
A.He came downstairs to see me and said ‘Look you’ve got to make up your mind today whether you’re pleading guilty or not guilty’ and I don’t think ten minutes was enough time for me ‘to make up your mind and that’s your decision’. I said ‘If I plead guilty what will happen?’ He said ‘If you plead guilty you’ll get a 25% discount’ and I wanted to plead not guilty. I wanted to go to trial. When he said ‘If you plead not guilty and get found guilty you’ll get a top sentence of seven years with a bottom sentence of four years’ and I’m young I don’t want to be in gaol for that long, I just thought I would be better off pleading guilty and just getting it out of the way.
Q.Did Mr Bowen go through the evidence with you at that meeting.
A.No.
Q.Did you feel that you would be better off pleading guilty regardless of whether you were guilty or not.
A.Yes.
Q.Did you feel pressured during that meeting.
A.Yes.
Q.Why was that.
A.Because I didn’t have much time, like he came downstairs and said ‘You have to make your mind up now’ and it was just all too much at one time.
Q.Can you remember signing any instructions.
A.I think I can, yeah.
In cross-examination, she said Mr Colthorpe came to see her in gaol, showed her most of the evidence gathered against her and said that he needed her instructions on the plea and was prepared to act for her if the matter went to trial. There was no need for a decision at that moment but one would be needed at or by arraignment.
She acknowledged she pleaded not guilty and, when the matter next came on for a directions hearing, that was adjourned by Mr Colthorpe to enable counsel to attend to list the matter for trial. She then said that she was aware the matter was going back into an arraignment list, but did not agree that was because she had indicated she intended to plead guilty.
Before that next arraignment, she agreed that Mr Bowen came to see her in the cells of the Sir Samuel Way Building. She was saying that, prior to that visit, she had not told Mr Colthorpe she wanted to plead guilty. She said she felt pressured by Mr Bowen and was not given enough time to make up her mind about the plea.
I think the effect of her evidence was that, after meetings with Mr Bowen and/or Mr Colthorpe, she thought there was strong evidence against her and they thought she would be found guilty and it would be better for her to plead guilty and receive a significant discount. She appeared to be saying she accepted that advice even though she was not guilty.
The defendant was confronted with her signed instructions as part of what appears to be a pro forma document. That document, on Colthorpe Lawyers letterhead, as signed, was as follows:
INSTRUCTIONS ON CHANGE OF PLEA
I   Diana Kite    desire to plead guilty to the
charge/s of   Aggravated Robbery
1.Although I have been advised that I am under no obligation in law to plead guilty and that I am entitled to enter a plea of not guilty, thereby insisting that the police/Crown prove my guilt beyond reasonable doubt upon a trial.
2.I have given a statement to my solicitor who has advised me that, on the basis of my statement, I may have a defence to the charge.
3.Although I may have a defence to the charge, after taking advice and having regard to the weight, nature and quality of the evidence against me I instruct my solicitors COLTHORPE LAWYERS that I wish to plead guilty to the charge.
4.I understand that by pleading guilty to the charge, I may lose all of my rights to appeal against conviction on the charge.
5.I instruct my solicitor to attend at the hearing of the charge (or arrange counsel to attend on my behalf) to intimate that I wish to plead guilty to the charge and address the court in mitigation of penalty.
6.I confirm that I have been advised as to the possible penalty on a plea of guilty and in particular as to the risk of imprisonment.
7.I confirm this document has been read through and explained to me prior to signing.
Signed:D.A. Kite  Date:     23-8-10
She said she read and understood the document. Then she was asked (T15):
Q.In summary it indicates you entered your guilty plea of your own free will.
A.No, I did not do it after all of my free will. After everything they had told me and advised me on and the pressure, the impression they were giving me it would be better off for me to plead guilty and not take it to trial, because the evidence they had against me was strong, which now I find it’s not very good at all; that is why I pleaded guilty because my lawyers gave me the impression that I would be better to plead guilty.
In answer to questions put by me she said, following the more recent advice, she takes the view that the evidence is not as strong as she was led to believe. That is why she has changed her mind and wants to plead not guilty (T16).
The defendant acknowledged she was not advised to plead guilty. She agreed the various options were laid out for her to decide which she wanted to take and she decided to plead guilty because she would get less time inside (T18). She also agreed that she was not pressured by time (by one of her earlier lawyers) and that she had a lot of time to think about her plea (T19).

After the defendant completed her evidence, a question arose as to whether her counsel, Mr Graham, could continue to act. The core of the problem was that in her evidence the defendant said that, once the (real) strength of the prosecution case was explained to her, she gave instructions that she wanted to change her plea. However, Mr Graham informed me (having obtained a waiver of legal professional privilege) that at their first meeting, before the evidence was discussed, she indicated she wanted to changer her plea. That would be contrary to her evidence.
After an adjournment, Mr Graham decided he could continue to act and filed an affidavit that included these paragraphs:
3. On 24 September 2010 I visited Ms Kite in the Adelaide Women’s Prison.
4. I was the first Solicitor from my Firm to take instructions from Ms Kite.
5.I have an independent recollection of Ms Kite complaining during that visit that she felt pressured by her previous Solicitors to plead guilty.
6.I have an independent recollection of Ms Kite instructing me that she wished to withdraw her guilty plea.
7.On that occasion I advised Ms Kite that attempting to withdraw a guilty plea had important consequences and that we needed to have in our possession all of the materials before we gave her any advice concerning withdrawal of her guilty plea.
Upon the resumption of the case on 11 February 2011, the prosecution called both Mr Bowen and Mr Colthorpe (their affidavits having been tendered at an earlier time).
Mr Colthorpe said that he saw the defendant in the Adelaide Women’s Prison at some stage before her first arraignment on 9 July 2010. He said that he went through the evidence with her, both the favourable and unfavourable. He told her that he was not sure that the jury would convict her. The potential was there for the evidence to be tested. She wanted to know about the penalty if she went to trial and was found guilty, as compared with pleading guilty. He did not tell her what to plead and advised her that her plea was her decision. Indeed, she wanted to make the decision on that occasion, but Mr Colthorpe told her he wanted her to think about her options and could contact him if necessary. No contact was forthcoming.
Mr Colthorpe said that, prior to the directions hearing after arraignment, he saw Ms Kite in the cells. She said she wanted to plead guilty. When the directions hearing was called on, Mr Colthorpe indicated to the Court that the matter could go back into the arraignment list. When next she was arraigned, before me, she pleaded guilty.
Mr Bowen said he took the written instructions (reproduced above) prior to Ms Kite’s plea on 23 August 2010. Mr Bowen had been told by Mr Colthorpe that Ms Kite intended to plead guilty (after Mr Colthorpe obtained those oral instructions at the directions hearing). Mr Bowen said he spent about 15 minutes with her. He also told her it was her decision. No advice was given about the likelihood of being found guilty. He took her through the document “Instructions on Change of Plea”, explained the points in lay language and considered that she understood the document. She did ask what was likely to happen to her should she take one line or the other (T10, 12). She was told a plea of guilty may attract a discount of up to 25 per cent.
Findings and discussion
I am quite satisfied that Ms Kite knew the nature of the charge and well understood the strength of the case against her and that it had its strong points and its weaknesses. She was specifically advised about that. She was given ample time to consider what her plea was going to be. She was not pressured by time or by either of her advisers. She was advised that her plea was her decision. She was not told to plead one way or the other. The options were explained to her to enable her to make the decision.
Clearly, one of the aspects of her situation with which she was concerned was the length of time she was going to spend in gaol if convicted after a trial, as compared with after a plea of guilty. That consideration had an added dimension for her because a conviction would breach her parole concerning, in part, an attempted robbery and an aggravated robbery. She was concerned to minimise her gaol time.
I am satisfied from her evidence, that of Mr Bowen’s and her signed instructions headed “Instructions on Change of Plea”, that she knew she could defend the charge but decided she would change her plea to one of guilty. Notwithstanding weaknesses in the case against her, she decided to plead guilty because she knew she was guilty and that was the best means of keeping the penalty to a minimum. There was no misunderstanding on her part as to the strength of the case against her. If there are any significant differences between the evidence of the defendant and Mr Colthorpe and Mr Bowen, I prefer the evidence of the latter two.
This case falls into that category of case referred to by Doyle CJ in Brooks quoted above:
This is nothing more than a case of an accused person who has pleaded guilty, but on reflection has realised that there is a possible view of the facts on which a jury might acquit. But that cannot detract from the effect of the admission of guilt, having regard to the circumstances under which that admission was made.
For the purposes of this case, it does not matter whether the “possible view of the facts on which a jury might acquit” occurred to her unaided or after advice. She should not be permitted to change her plea in all the circumstances of this case. I am satisfied that there has not been a miscarriage of justice.
The application is dismissed.