R v Lomax
[2019] SADC 68
•29 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LOMAX
[2019] SADC 68
Reasons for Decision of Her Honour Judge Schammer
29 May 2019
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The accused was charged with two counts of trafficking in a controlled drug.
At arraignment, he entered pleas of not guilty to both counts and the action was listed for trial.
At court, shortly prior to a Directions Hearing on 17 October 2018, the accused conferred with his solicitor with respect to an offer of resolution that had been conveyed by the prosecution. The prosecution had advised that they would agree to a plea of guilty on both counts on the Information on an agreed factual basis that some of the drugs found in the accused’s possession were for personal use, but that a small amount of the methylamphetamine (being the subject of count 1) and a small amount of the cannabis (being the subject of count 2) were destined for sale. The precise words used by the accused’s solicitor during this conversation with the accused are the subject of dispute.
The accused subsequently signed a copy of the Information indicating his intention to plead guilty to both counts. He claims he did so because he understood, having regard to the words used by his solicitor in the conversation, that he was not pleading guilty, in each instance, to the offence of trafficking, but rather to the lesser offence of possession of a controlled drug.
On 15 November 2018 the accused attended at his solicitor’s offence and informed him that he wished to change his plea of guilty to both counts to a plea of not guilty.
On 3 March 2019 the accused filed an application seeking permission to withdraw his guilty pleas on both counts, as, inter alia, the pleas had resulted from a mistake, misunderstanding or misapprehension on his part and that it would result in a miscarriage of justice if the pleas were allowed to stand.
Held:
1. At the time the accused entered guilty pleas to both counts on the Information he misunderstood the effect of agreeing to the proposal as put by the prosecution, and mistakenly believed that he was pleading guilty, in each instance, to the lesser count of possession of a controlled drug.
2. The Court exercises its discretion to permit the accused to withdraw his guilty plea to both counts.
Controlled Substances Act 1984 (SA) s 32(3), 32(5), referred to.
Meissner v The Queen (1995) 184 CLR 132; R v Sagiv (1986) 22 A Crim R 73; R v Davies (1993) 19 MVR 481; R v Clayton (1984) 35 SASR 232, discussed.
R v Liberti (1991) 55 A Crim R 120; R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; R v Simmons [2017] SASCFC 49; Weston (a pseudonym) v The Queen [2015] VSCA 354; R v Chiron [1980] 1 NSWLR 218, considered.
R v LOMAX
[2019] SADC 68Background
Kevin John Lomax (the accused) was charged on Information for arraignment on 6 July 2018 with two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (CSA). The particulars of these offences read as follows:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984)
Particulars of Offence
Kevin John Lomax on the 16th day of December 2017 at Hackham, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid)
Particulars of Offence
Kevin John Lomax on the 16th day of December 2017 at Hackham, trafficked in a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
At all material times prior to 17 October 2018, the accused maintained that the drugs found in his possession on 16 December 2017 were intended for his own personal use and that he did not intend to sell any of them.
At a Directions Hearing on 17 October 2018, the accused entered a plea of guilty to both counts on the Information.
He did so shortly after having a conversation at court with his solicitor, Mr Carlin, as to the contents of a proposal put forward by the prosecution to resolve the action (‘the conversation’).
Mr Carlin did not make notes of the conversation. There is a dispute as to the precise words used by Mr Carlin during the conversation.
Prior to entering his guilty pleas, the accused marked and signed a copy of the Information with the words ‘I wish to plead guilty 17/10/18 K J Lomax’. He did not otherwise provide detailed written instructions with respect to the pleas.
Mr Carlin recalls that during the conversation he informed the accused that the prosecution had agreed to a resolution of the action on the basis of a plea of guilty to both counts on an agreed factual basis that ‘some of the methylamphetamine and cannabis were for personal use and that a small amount was destined for sale’.
The accused’s recollection of the conversation was that Mr Carlin informed him that the matter could be resolved ‘on the basis of possession’, with ‘perhaps’ or ‘maybe’ some intent to sell some of the drugs.
The accused claims that by the words used by Mr Carlin in the conversation he understood that he was in fact entering pleas of guilty, with respect to each count, to the lesser offence of possession of a controlled drug.
The accused maintains that as at 16 December 2017 he had no intention to sell any of the drugs found in his possession.
He seeks permission to withdraw his guilty pleas on the basis that there would be a miscarriage of justice if the pleas of guilty stand.
The Application
By application dated 3 March 2019, the accused seeks the following orders:
1That he be allowed to withdraw his guilty pleas entered in this matter; and
2That he be re-arraigned and the matter listed for trial.
The application is based on four separate grounds, namely:
1The guilty pleas resulted from a mistake, misunderstanding or misapprehension on behalf of the accused;
2When entering his guilty pleas, the accused did not intend to admit that he had an intention to sell any of the controlled drugs at the time of his possession of them, rather he thought that he was admitting if, and only if, he was requested by someone, he may have sold that person some of the drugs the subject of the charges;
3The facts intended to be admitted by the accused are insufficient to constitute a charge of trafficking in a controlled drug as he lacked the requisite intention to sell the drugs; and
4The accused intends to assert a positive defence that he was in possession of the controlled drugs for his own personal use.
The application was heard before me on 6 May 2019.
The accused gave evidence in support of his application and tendered an affidavit sworn by him on 30 January 2019. By para.14 of his affidavit the accused waived privilege as to the instructions he gave Mr Carlin and the advice he received from Mr Carlin with respect to the charges.
The prosecution called evidence from Mr Carlin and tendered an affidavit sworn by him on 15 April 2019. Mr Carlin’s evidence was heard before that of the accused for practical purposes.
Legal Principles
In the usual course, a plea of guilty is to be treated as final. A guilty plea is generally taken to be a public admission to all of the elements of the offence. Further, there is a clear public interest in maintaining the finality of legal proceedings.[1]
[1] R v Liberti (1991) 55 A Crim R 120.
However, there remains a discretion for a judge to allow an accused person to withdraw a guilty plea where he or she can demonstrate that allowing the plea to stand would result in a miscarriage of justice.[2]
[2] R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478.
The accused bears the onus of establishing that a miscarriage of justice would occur if the guilty pleas are allowed to stand.[3]
[3] R v Pugh [2005] SASC 427 at [196].
As outlined by Doyle CJ in R v Brooks,[4] there are no firm rules as to when it will be appropriate to allow such an application and the approach to be taken by the court is dependent upon the circumstances of the particular case.
[4] R v Brooks (2007) 96 SASR 478.
Doyle CJ identified matters which may inform the court in its exercise of the discretion, but would not necessarily be determinative; namely if an accused misunderstood the nature of the charge against them; or the accused did not understand the basis of the prosecution case or the significance of their plea; if there was inducement or pressure placed on the accused to plead guilty; if the accused had received erroneous or inadequate advice; or if the facts could not sustain a conviction.[5]
[5] R v Brooks (2007) 96 SASR 478 at [69]-[71].
As to the latter, in considering whether the pleas might be withdrawn, while the merits of the prosecution case are a relevant consideration, even if there are some real questions about a defendant’s guilt, it is not necessarily determinative of the matter.[6]
[6] R v Simmons [2017] SASCFC 49 at [34].
Adequacy of the advice given to an accused is but one factor to consider in whether there has been a miscarriage of justice. In doing so, a Court must have regard not only to the specific advice given to an accused but also the overall advice and its effect upon an accused at the time he makes a decision.
Heightened emotional states or lack of understanding, robust advice or tension within the room in respect of which advice is being given will not, separately of themselves, be sufficient.[7]
[7] Weston (a pseudonym) v The Queen [2015] VSCA 354; R v Simmons [2017] SASCFC 49 and R v Chiron [1980] 1 NSWLR 218.
Further, the presence or absence of a consciousness of guilt may, or may not be, decisive. It will not be relevant if the accused has entered a plea of guilty in the exercise of a free choice, in the accused’s interests, and in the context of the accused understanding the nature and strength of the case against them.[8] As outlined in Meissner v The Queen,[9] a person may be held to their guilty plea, even though it was made upon grounds extending beyond that person’s belief in their guilt.
[8] R v Brooks (2007) 96 SASR 478 at [80].
[9] (1995) 184 CLR 132; per Dawson J at 157.
In R v Sagiv,[10] the NSW Court of Appeal said that the question of whether a miscarriage of justice would occur was inextricably linked to the integrity of the plea. Lee J found ‘that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave’.[11] Where however the person is in possession of all of the facts and intending to plead guilty, Lee J considered the plea to be the most cogent admission of guilt that could be made.
[10] (1986) 22 A Crim R 73.
[11] (1986) 22 A Crim R 73 at 80.
This decision was referred to with approval in R v Davies wherein Badgery-Parker J, with whom Wood J and Matthews J agreed said:[12]
If the integrity of the plea is bona fide questioned because it appears that the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J, “an issuable question of guilt” – to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.
[12] (1993) 19 MVR 481 at 485.
As observed by Wells J in R v Clayton, the discretion is not to be exercised ‘by the examination of lines of authority and the drawing of subtle distinctions. It is to be decided according to common sense, standards of fairness, and sound practice.’[13]
[13] (1984) 35 SASR 232 at 233.
The prosecution case against the accused
In opposition to the application the prosecutor submitted that there was a strong case against the accused.
The case is a circumstantial case.
On 16 December 2017 police attended at the accused’s address at Hackham and conducted a search of the property under the authority of a warrant issued under the Controlled Substances Act 1984 (CSA). The accused was at the home, as was his partner. Another female was observed to be exiting the property.
As officers entered the property, the accused was observed in the rear yard, running, holding a black nylon bag, which he then threw on the ground. The bag was later retrieved by police and found to contain two glass ice pipes, $930 in cash, three small plastic tubs each containing a substance suspected to be methamphetamine, electronic scales, a large quantity of unused plastic ziplock bags and pieces of bark.
The substances in the three plastic tubs weighed 6.22 g and contained methylamphetamine (count 1).
In a set of drawers in a bedroom police found a plastic shopping bag containing dried cannabis. A small metal tin on a coffee table in the lounge room also contained dried cannabis. A brass pipe was found in a hand bag on the couch in the living room.
Two large bags containing cannabis were found in a freezer drawer in the kitchen (count 2). The material in one bag was slightly mouldy and damp and comprised female cannabis plant material and some cannabis leaf material weighing 899 g. The material in the second bag comprised moist, decomposing female cannabis plant material and some cannabis leaf material and weighed 990 g.
The accused’s partner was searched and found to have in her possession a small plastic bag containing ‘ice’ and a pipe. She was issued with an expiation notice.
The female observed by police to be leaving the accused’s property was searched and found to have in her possession a glass ice pipe and a small snap seal bag containing a white crystalline substance. She was also issued with an expiation notice.
For the purposes of s 32(5) of the CSA, a ‘traffickable’ quantity of a mixed substance containing methylamphetamine is 2 g or more, and a traffickable quantity of cannabis is 250 g.
The accused does not dispute that on 16 December 2017 he was in possession of the methylamphetamine being the subject of count 1 (6.22 g), the cannabis being the subject of count 2 (1.96 kg), cash in the sum of $930, scales and unused resealable bags.[14]
[14] Exhibit P1 at [4]; T 19.13-19.
Pursuant to s 32(5) of the CSA, if it is proved that the accused had possession of a traffickable quantity of a controlled drug, absent proof to the contrary, it is presumed he had the relevant intention concerning the sale of the drug necessary to constitute the offence.
As such, the accused bears the onus of establishing on the balance of probabilities, as to each count, that he was in possession of the drugs for a purpose other than to sell any of them.
The accused gave evidence that he had been unemployed since 1994 and at the date of the offending was in receipt of Centrelink benefits of $550 per fortnight.[15]
[15] T 30.22-31.
He gave evidence that he had been a user of methylamphetamine since 1999[16] and was using anywhere up to 3.5 g of methylamphetamine on a weekly basis as at 17 October 2017.[17]
[16] T 20.14-15.
[17] T 26.3.
He was asked if he was using about the same amount of methylamphetamine as at 16 December 2017 and he said ‘possibly, more’.[18]
[18] T 26.24-25.
When asked how he was able to fund his addiction, the accused said that he purchased methylamphetamine on credit. He said he came into an inheritance from his mother’s estate in April 2018 in the sum of $52,000, of which he had to pay out $26,000 which he owed for methylamphetamine.[19]
[19] T 31.23-25; T 26.4-17.
As to the methylamphetamine the subject of count 1, he gave evidence that he had purchased it in two lots, each at a cost of $1,000.[20]
[20] T 29.18-20.
He said he had borrowed $3,000 from a friend, Craig Bruce, who was aware the inheritance was coming. He said he spent $2,000 of that money on methylamphetamine and he was going to use the other $1,000 to buy Christmas presents. He explained that the $930 cash was what was left of that $1,000 and that he had put the cash in the black bag (which he described as a ‘black case’) when he had changed clothes shortly before the police had arrived and he had taken it out of his pockets [21]
[21] T 31.2-7, T 31.32-32.3
The accused said the cannabis being the subject of count 2 was given to him by two people about a month or two before.[22]
[22] T 29.30-36.
It was the prosecution case that the accused’s admitted methylamphetamine habit was being funded by his sale of controlled drugs. It was submitted that the combined effect of the circumstantial evidence was such that the accused could not satisfy a jury that it was more likely than not that he had all of the drugs in his possession for a purpose other than sale.
Procedural History
Mr Carlin was retained by the accused to act on his behalf with respect to the charges on the Information from, at least, early April 2018.
At para.4 of his affidavit Mr Carlin deposed that on 3 April 2018 he provided the accused with the prosecution’s documentary evidence including the Information, Allegations, Antecedent History and all declarations.
The accused entered pleas of not guilty to both counts at a committal hearing in the Magistrates Court at Adelaide on 17 May 2018.
The accused was arraigned on 6 July 2018, at which time he again entered pleas of not guilty to both counts. In response to questioning by the presiding judge at that time, the prosecutor stated that the action was capable of resolution, there had been some negotiations and that ‘the prosecution may accept a plea to supply subject to the factual basis and instructions from the director’.
The action was listed for a First Directions Hearing/Callover on 12 September 2018. Both the accused and Mr Carlin attended that hearing. At that time, the hearing was adjourned to enable the accused to obtain legal aid funding.
Mr Carlin informed the court that he had had no contact with the accused since the matter had last been in court (in other words, since the date of arraignment) up until that morning, although he had written to the accused and tried to telephone him.
There is no dispute that at all times prior to 17 October 2018 the accused maintained that his intention was not to sell any of the drugs found in his possession on 16 December 2017 and the drugs were for his personal use.
Mr Carlin’s evidence
Mr Carlin gave evidence, which evidence I accept, that he had no contact with the accused from 12 September 2018, up until he saw the accused at court just prior to the Directions Hearing on 17 October 2018.[23]
[23] Exhibit P1 at [8]; T 3.38-4.4.
In his evidence-in-chief Mr Carlin gave the following evidence as to the conversation he had with the accused on 17 October 2018 namely:[24]
[24] T 3.34-4.22.
QDo you have a clear recollection today of the exact conversation that you had with Mr Lomax that day.
A I do have a recollection.
Q Do you recall what was said to Mr Lomax.
AMy position was difficult because the previous time the matter was in court I hadn’t had any discussion with Mr Lomax leading up until the day of court. Similarly, was the situation this time, that I had no contact with Mr Lomax up until the morning of court and then I put to him what the discussions had been between myself and the director with an agreed factual basis that some was for personal use and a small amount was destined for sale and I gave Mr Lomax an opportunity to consider that and when I returned he told me that that’s what he wanted to do, he wanted to plead guilty on that basis.
QPrior to that day of 17 October 2018 did you have any other conversation with Mr Lomax either in writing or in person about the factual basis.
ADuring the committal process my instructions from Mr Lomax was always maintain a not guilty plea and that was done right through the committal process. Then after the committal process I wrote to Mr Lomax on 19 May outlining the position that whilst confirming his not guilty instructions that it was still worth pursuing a possession charge, and that’s the way it was left. (my emphasis)
At paras.8 and 9 of his affidavit Mr Carlin deposed:
8. I had no contact with Mr Lomax up until Count (sic) on the 17 October 2018 when prior to the matter being called on, I indicated to him that the matter could be resolved with a plea to both counts on an agreed factual basis that:
“Some of the Methylamphetamine and Cannabis were for person use and a small amount was destined for sale.”
9. Mr Lomax without hesitation indicated to me that he “agreed” and I invited him to write in his own handwriting his willingness to plead guilty to both counts on the bottom of the Information…
In cross-examination Mr Carlin explained that on 17 October 2018 he arrived at court, booked in with the sheriff’s officer and was outside the court room, when he recognised and approached the accused, and had the conversation with him.
When asked if he could recall the exact words he used in that conversation, Mr Carlin said:[25]
AThere weren’t a lot of words mentioned. I explained to him again for the third time what the agreed factual basis was and the traffickable quantity that was concerned.
QGive you state that you recall the exact words, can you tell the court the exact words that were used during that conversation.
AI’m only human, I didn’t take handwritten notes for every word that was said. It was a position where there was an offer to resolve the matter, I reinforced that, re-affirmed the offer to resolve it was still there if he wanted to. When I explained what the agreed factual basis was, there was a small amount for personal use and a small amount destined for sale, he accepted that. (my emphasis)
[25] T 6.25-38.
Mr Carlin did not accept that he was, in effect, paraphrasing the conversation and went on to give the following evidence of what he said:[26]
A‘Good to see you, Mr Lomax. I haven’t seen you for a while. The matter is in court in 10 minutes, the offer is still on the table that if you accept that some was for personal use and a small amount was destined for sale, the director would accept that. The difficulty, Mr Lomax, is that you’re over three times the commercial quantity of methylamphetamine and over the cannabis. The decision is completely up to you, Mr Lomax. I’ll leave you to think about it’. They were, to my recollection, the words that I used.
Q Did he respond to that in any way.
AI said ‘Listen Mr Lomax, the decision is entirely yours. I’ll leave you for a couple of minutes to think about it.’ My memory is upon returning he said ‘Yes, I’ll do it’, I said ‘Alright, well you sign the information’ and I provided him a copy of the information and then I observed him write ‘I wish to plead guilty’ dated 17 October 2018 and signed it in his own handwriting.
[26] T 7.9-26.
Mr Carlin said he did not feel rushed[27] and estimated the conversation, from start to finish, took no more than 10 minutes.[28]
[27] T 5.29.
[28] T 5.34-36.
He explained that during the conversation he had not discussed with the accused the elements of the offence, or the likely or maximum penalties, but that he had done so previously.[29]
[29] T 10.15-17; T 12.1-15.
He said he did not discuss with him the percentage discount a guilty plea at that stage would attract, but recalled that after he had asked the accused to think about the decision, but before he signed the Information, he ‘would have made him aware of the discounts of a guilty plea’.[30]
[30] T 10.30-33.
Mr Carlin gave evidence that he saw the accused read the contents of the Information before endorsing it with the words outlined at para 6.[31]
[31] T 16.27-33.
Mr Carlin gave evidence that he was confident he had previously discussed with the accused the agreed factual basis as proposed by the prosecution, although he could not recall when that was, and could not identify the occasion by reference to any correspondence or file notes. As to when he may have done so he referred to the letter of 19 May 2018 (a copy of which was not before the court) and said:[32]
You alluded to earlier in your question, the letter that I sent to him about the possibility of exploring a resolution, so we’d had a conversation about the director’s offer to resolve the matter.
[32] T 13.22-25.
He believed any such discussion had been after the committal date.[33] He said it may have been when the accused attended court and had not applied for funding (i.e. on 12 September 2018).[34]
[33] T 14.3-5.
[34] T 14.12-19.
Mr Carlin said (of the agreed factual position):[35]
My recollection is it wasn’t the first time that I’d put to Lomax what the director’s position was but I accept that I hadn’t had any communication with him since October (sic), since the matter was last in court, but I’m confident that I discussed what the director’s position was with Mr Lomax prior to 17 October.
[35] T 14.29-34.
Mr Carlin agreed it was possible that during the conversation he had not expressly used the word ‘trafficking’ but denied that it was possible that he had said that a small amount of each drug was ‘possibly’ or ‘potentially’ or ‘maybe’ for sale. He said the words he used were ‘some of the methylamphetamine and cannabis were for personal use and a small amount was destined for sale.’[36]
[36] T 12.22-13.4.
He denied that he could have used the word ‘possession’ during the conversation, or that there had been a discussion with the accused as to whether it could have all just been possession.[37]
[37] T 18.15.26.
Mr Carlin did not think the accused’s decision to plead guilty was unusual and said:[38]
No, not given the facts of the case, no. The money was difficult to explain. I’d asked Mr Lomax to provide me with stat decs from the persons who he had said that had given him the $900 and they were never forthcoming.
[38] T 16.18-21.
He agreed that from time to time when a client was entering pleas they may look at him for support, but did not recall the accused doing so at the time he entered his guilty pleas, albeit he agreed it could have happened.[39] He denied having a conversation with the accused after he had entered his pleas whereby the accused had said words to the effect of ‘what the eff, I thought it was going to be possession’, but recalled discussing with him the need to get reports from DASSA as to his rehabilitation.[40]
[39] T 17.2-17.
[40] T 17.18-34.
Mr Carlin said the accused attended at his office of his own volition, without an appointment, on 15 November 2018 and advised him he wished to change his pleas to not guilty.[41] He said he used the following words:[42]
“I’ve been to rehab, I was speaking to some people there and I should never entered a guilty plea to trafficking. It was all for personal use”.
[41] T 18.27-38.
[42] T 19.2-5.
In his affidavit, he deposed:[43]
I had no contact with Mr Lomax until 15 November 2019 (sic) when he attended my office and told me that he:
“Had been to rehab and he wanted to change both pleas of guilty to not guilty”.
[43] Exhibit P1 at [10].
The accused’s evidence
The accused gave evidence that he was a methylamphetamine addict as at the date of the offending, that he continued to use methylamphetamine after his arrest, and that he had taken methylamphetamine on 17 October 2018 prior to attending court [44]
[44] T 21.20-24; 24.1-2; T 25.33-26.30.
He also claimed to use cannabis on a daily basis as at the date of the offending.[45]
[45] T 30.14-15.
He recalled attending court that day and the contents of the conversation he had with Mr Carlin.[46]
[46] T 21.25-22.2.
In evidence, he described that conversation in the following terms:[47]
He informed me the matter could possibly be resolved with possession and perhaps some intent to sell. (my emphasis)
[47] T 22.5-6.
He agreed with a proposition put to him by his counsel that Mr Carlin may have alternatively used the words ‘maybe some intent to sell’.[48]
[48] T 22.10-12.
In his affidavit, the accused described the words used during the conversation in slightly different terms namely:[49]
Outside of the Courtroom but in the Court building, I had a conversation with Mr Carlin regarding how the matter was to proceed. I do not recall the exact words of the conversation, but they were along the following lines:
Mr Carlin said: Prosecution are willing to resolve this matter on the basis of possession with some intent to sell some of the drugs.
I said: Can’t it all be just possession?
Mr Carlin said: No. Possession with some intent to sell is all that they will come down to.
I said:Well if that is all that they will come down to, that’s what I will have to take.
[49] Exhibit D2 at [5].
The accused gave evidence that he thought the charges had been downgraded from trafficking to possession, and as such he agreed to plead guilty.[50] He explained that as to the issue of some or maybe an intent to sell, that this was something that would be discussed later.[51]
[50] T 22.14-16.
[51] T 22.17-20.
The accused agreed with a proposition put to him by his counsel that his judgment may have been clouded that day due to his methylamphetamine use.[52]
[52] T 24.4-6.
As to what he thought was occurring he said:[53]
[53] T 24.10-22.
A I thought the charges had been downgraded to possession.
Q What gave you that idea, do you know.
ABecause there was no mention of the word ‘trafficking’ at all that morning and when he just totally said ‘for personal use’ so.
Q Sorry, did he say just the words ‘for personal use’ did he.
ANo, he said, as far as I recall, he said ‘personal use with some intent to sell a little of it’.
Q What did you understand those words ‘some intent to sell a little bit to mean’.
A Not trafficking, possession, yeah, I didn’t think it would be trafficking at all.
He went on to say that his intention was to use the drugs himself, ‘to pig out, indulge himself’, but if the opportunity had arisen he possibly may have sold some of them.[54]
[54] T 24.27-38.
In his affidavit, the accused stated:[55]
I thought that what I was admitting to was the following:
(a) I was in possession of the drugs;
(b) I intended to consume the drugs myself; I did not have any positive intention to sell any of the drugs;
(c) However, if – and only if – somebody asked me if they could buy some off me, it was a possibility that I would have sold them some drugs.
[55] Exhibit D2 at [10].
He said he did not know what document he had signed in court prior to entering his guilty pleas and he did not read the document.[56]
[56] T 22.29-34.
The accused acknowledged that when he spoke to Mr Carlin at court on 17 October 2017 about the agreed factual basis as proposed by the prosecution, this was not the first time he had spoken to Mr Carlin about that, although he could not recall when it was that this had been discussed earlier.[57]
[57] T 21.4-13.
The accused said that when the charges were read to him, immediately before entering his guilty pleas, he was confused, so he looked towards Mr Carlin and that he nodded his head towards him. He said that after entering his pleas he had spoken to Mr Carlin and asked why the charges of trafficking had been read to him, as he thought they had been downgraded to possession and that he had said that that was what the prosecution would come down to, and that he needed to do something about his drug habit.[58]
[58] T 23.1-16.
The accused gave evidence that he had entered detox with DASSA on 5 November 2018 and that as a result, he started thinking much clearer, and realised what he had done, namely pleaded guilty to the wrong charge.[59]
[59] T 20-38.
In cross-examination, the accused acknowledged that as at 17 October 2018 he thought ‘trafficking’ meant ‘selling drugs’.[60]
[60] T 28.5-7.
He disagreed with a proposition put to him that on 17 October 2018, as he had in 2008 when he was sentenced for an earlier charge of selling methylamphetamine, that he intended to plead guilty to the charge on the basis that he used methylamphetamine himself, but that he would have sold some of it for profit over and above recovering his outlay for the purchase of the drug.[61]
[61] T 28.8-29.3.
Discussion/Findings
Unfortunately, Mr Carlin did not make notes of the conversation, nor did the accused sign detailed instructions confirming he understood the basis upon which he was pleading guilty to both counts.
Although Mr Carlin maintained, with some force, that he recalled the exact words he used in the conversation, namely ‘some of the methylamphetamine and cannabis were for personal use and a small amount was destined for sale’,[62] I note that he also described that conversation as comprising the words ‘a small amount for personal use and a small amount destined for sale’.[63]
[62] Exhibit P1 at [8]; T 4.6-8; T 6.7-9; T 7.11-13; T 9.1-4; T 13.3-4.
[63] T 6.37-38.
In his affidavit, the accused acknowledged he could not recall the exact words used in the conversation and what he deposed to at para.5 of his affidavit makes no reference to the use, by Mr Carlin, of the words ‘perhaps some intent to sell’ or ‘maybe some intent to sell’.
I consider it unlikely, given the passage of time (and in the case of the accused, his earlier consumption of methylamphetamine), that either Mr Carlin or the accused have a precisely accurate recollection of the exact words used during the conversation.
Although four grounds are listed in the application, the primary ground upon which the accused relies is that he misunderstood that he was entering a plea of guilty to trafficking in each drug and that he thought he was, instead, pleading to downgraded charges of possession. He said he did so because he recalled Mr Carlin using the word ‘possession’ during the conversation, but not the word ‘trafficking’. He said he had previously written to the accused on 17 May 2018 wherein he had referred to the fact ‘it was still worthy pursuing a possession charge’.
When Mr Carlin described his recollection of the words he used in the conversation, he made no mention of the use of the word ‘trafficking’.
The accused agreed that the conversation he had with Mr Carlin on 17 October 2017 was not the first time he had spoken about the agreed factual basis as put by the prosecution. However, when the evidence is considered in its entirety, and regard is had to the court transcript of what occurred in open court during the various hearings, it is difficult to make any finding as to when and what may have previously been discussed between Mr Carlin and the accused.
As previously outlined, during evidence-in-chief Mr Carlin made no reference as to having previously discussed the agreed factual basis with the accused. Rather, he made reference to the letter of 17 May 2018[64] (the contents of which were not before the court) and the fact that ‘it was still worth pursuing a possession charge, and that’s the way it was left’.[65]
[64] Noting this is prior to arraignment, being the same day as the committal hearing.
[65] T 4.14-22.
In cross-examination Mr Carlin’s evidence was different – namely that he had a distinct recollection of previously discussing the agreed factual basis with the accused, using the terminology ‘for the third time’.[66] He was uncertain when he had previously informed him of the proposal, but eventually said it was likely at the ‘status conference with respect to funding’.
[66] T 6.25-28; T 8.38-39.4.
Again, there were unfortunately no notes of when any such earlier conversations as to any agreed factual basis had occurred and if so what precisely was discussed.
It is of note that the prosecutor informed the judge at arraignment that there was some possibility of the matter resolving on an entirely different basis (subject to instructions), namely ‘the prosecution may accept a plea to supply subject to the factual basis and instructions from the director’. Mr Carlin gave no evidence of ever discussing a potential resolution of the matter, on that basis, with the accused.
There is no dispute that until 17 October 2017 the accused had maintained that all of the drugs were for his personal use. While I accept Mr Carlin’s evidence that he was not rushed in his discussions with the accused on 17 October 2017, the fact is, whatever the contents of the conversation, it was not a lengthy conversation, with nothing discussed as to the elements of the offence, or likely penalties, or maximum available discount, albeit I accept such matters were discussed on, at least, an earlier occasion. As the accused had steadfastly maintained his innocence until that date, the fact he decided to accept the resolution, in a period of no more 10 minutes (maximum), without a more detailed discussion with Mr Carlin as to the merits of his defence, supports the accused’s claim that he did not appreciate the basis upon which he was pleading guilty. This is particularly so given Mr Carlin’s evidence-in-chief as to his limited discussions with the accused leading up to 17 October 2018.
Further, the evidence strongly supports a finding that the accused was a heavy user of, at least, methylamphetamine (and probably cannabis) as at the date of the offending. He was unemployed. The agreed factual basis did not involve any significant concession by the director, particularly in light of what the prosecutor told the court at arraignment in terms of an alternative possible resolution to charges of supply.
While Mr Carlin now recalls the accused reading the Information as he signed it, he cannot know if the accused did, in fact, read it, even if he may have appeared to do so and understand it, and the accused maintains he did not read it.
While the accused had previously been sentenced for an earlier charge of selling methylamphetamine in 2008, this was around 10 years prior to the relevant date. The accused gave evidence he was a heavy methylamphetamine user throughout that period.
The accused approached Mr Carlin of his own volition approximately one month after entering his guilty pleas, being immediately after he had attended detox and claimed to have some clarity of thought, after many years of being affected by drugs, stating his intention to change his pleas to not guilty. This is not a case where the decision to change a plea has come after the accused has met with his solicitor and received advice as to the possible sentencing outcomes in light of the plea but before sentence, or after sentence has been delivered.
While I have reservations as to aspects of the accused’s evidence, having carefully considered all of the evidence, I am satisfied that he misunderstood the basis upon which he was entering his pleas of guilty.
Further, although I agree the prosecution case is a relatively strong case, in the absence of, for example, incriminating telephone intercepts, tick lists and the like, there is a real issue to be tried, namely whether the accused can prove, on the balance of probabilities, he did not intend to sell any of the drugs.
In those circumstances, I find that the accused has established that there would be a miscarriage of justice if the guilty pleas are allowed to stand.
Conclusion
1The accused is allowed to withdraw the guilty pleas he entered to counts 1 and 2 on the Information on 17 October 2017.
2The accused is to be re-arraigned and the matter listed for trial.
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