R v Matthews
[2019] SADC 57
•10 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MATTHEWS
[2019] SADC 57
Reasons for Decision of His Honour Judge Slattery
10 May 2019
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The accused was charged with four serious offences of a sexual nature. At arraignment, he entered pleas of not guilty. On 11 January 2018 he conferred for the first time with his new solicitors and counsel. At that time, the prosecution had put a proposal for settlement of a plea to the three lesser counts that would be accepted in full satisfaction of the four counts. The other count was the most serious charge on the information.
On 11 January the solicitors obtained written instructions to accept the offer. On 15 January, the accused entered pleas of guilt to the three counts.
The time period particularised for counts 1 and 2 disclosed that at the relevant time the accused was between 10 and 14 years of age. For count 4, he was in his early 20's. At the time that the solicitors took instructions for the guilty plea of the accused on counts 1 and 2, no advice was given about the principle of doli incapax.
In support of his application, the accused gave evidence that on 11 January 2018 his judgment was overborne by the conduct of his solicitors and counsel. That contention was denied by counsel who also referred to the written record of instructions from the accused.
Held:
1. On counts 1 and 2: at the time that the accused gave instructions, he did not do so in a fully informed way because he was not aware of the existence of the principle of doli incapax nor had he been informed of the burden required to be discharged by the prosecution arising under it. Permission is granted to the accused to withdraw his guilty plea on counts 1 and 2.
2. At the time that the accused gave instructions, he did so in the absence of the advice that should have been given to him about counts 1 and 2. He was not given the opportunity to give instructions about count 4 in the context of a fully informed decision on counts 1 and 2. In those particular circumstances, the Court exercises its discretion to permit the accused to withdraw his guilty plea to count 4.
3. The action is listed for arraignment for trial on Wednesday 15 May 2019.
Criminal Law Consolidation Act 1935 s 56, referred to.
Field and Anor v Gent (1966) SASR 122; R v M (1977) 16 SASR 589; C v Director of Public Prosecutions [1996] 1 AC 1; R v Johnson [2015] SASCFC 170, discussed.
R v Pugh [2005] SASC 427; Hinton v O’Dea (1977) 16 SASR 234; R v Brooks (2007) 96 SASR 478; Western (a pseudonym) v The Queen [2015] VSCA 354; R v Simmons [2017] SASCFC 49; R v Chiron [1980] 1 NSWLR 218, considered.
R v MATTHEWS
[2019] SADC 57
Frederick Barry Matthews was charged on Information for arraignment on 16 February 2015 with three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (CLCA) and one count of persistent sexual exploitation of a child contrary to s 50(1) CLCA. The particulars of these offences read as follows:-
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Frederick Barry Matthews between the 31st day of July 1960 and the 30th day of July 1962 at North Adelaide, indecently assaulted SL by inserting his fingers into her vagina.
Second Count
Statement of Offence
Indecent Assault. (Ibid)
Particulars of Offence
Frederick Barry Matthews between the 27th day of August 1960 and the 26th day of August 1961 at North Adelaide, indecently assaulted CAL by touching her vagina.
Third Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Frederick Barry Matthews between the 25th day of November 1965 and the 24th day of November 1967 at Moonta and other places, over a period of not less than three days, committed more than one act of sexual exploitation of CAL, a child under the age of 17 years.
Fourth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Frederick Barry Matthews between the 27th day of August 1970 and the 26th day of August 1971 at Hectorville, indecently assaulted CAL by inserting his fingers into her vagina.
From the time of his arraignment, Mr Matthews pleaded not guilty to these charges. On 15 January 2018, he entered a plea of guilty to counts 1, 2 and 4 on the Information which the Prosecution accepted in full satisfaction of all of the counts of the Information. I then entered a nolle prosequi in relation to count 3. On 15 January 2018, Mr Matthews was represented by counsel. When Mr Matthews entered his pleas, his counsel stood at the dock and gave advice to him in relation to the entry of his pleas of guilty.
Prior to 15 January 2018, there had been an earlier appearance before the Court on 11 January 2018. This was a directions hearing and at that hearing, Mr Matthews’ counsel indicated that the matter was the subject of a potential resolution, that Mr Matthews’ solicitors had just been briefed on the matter and that they needed more time to speak with their client. Time was then made available for solicitors and counsel to confer with Mr Matthews to obtain the necessary instructions.
By application dated 14 December 2018, Mr Matthews seeks the following orders:-
1. Leave to be granted to withdraw guilty pleas entered on 15 January 2018.
Mr Matthews gave evidence in support of his application. In response, the Prosecution called evidence from Mr Matthews’ counsel who was acting at the time of the entry of his pleas of guilty.
The application of Mr Matthews has two bases: the first, that the Court should accept the evidence of Mr Matthews that his will was overborne at the time he gave signed written instructions to his solicitors and counsel such that, in effect, he was “bullied” into agreeing to enter his pleas of guilty. The second, that at the time Mr Matthews is alleged to have committed the offences in relation to counts 1 and 2, he was 14 years or under and therefore was doli incapax so that a rebuttable presumption which is required to be discharged by the Prosecution arose in his favour. It follows that in relation to the plea of guilty entered on count 4, there is only one basis of application, namely that the will of Mr Matthews was overborne.
In his evidence, Mr Matthews explained that he has difficulty reading and understanding what he has been told. He said at the time he signed the written instructions of the solicitor, he did not have his glasses, he could not read and did not necessarily understand what he was being told. He said that the documents were “shoved in front of him” and a demand was made for him to sign them. He was told continually “…sign it, sign it, sign it…” He said his counsel and his solicitor stood over him and made sure he signed the document of instructions and then his guilty pleas were entered in the Court. It was only when he spoke to the psychologist Dr Lim that he said he did not think he was guilty even though he had entered pleas of guilty. It was at her suggestion that he took moves to withdraw his guilty pleas. In cross examination, he said he was told by his solicitors and counsel that he would get a lighter sentence if he pleaded guilty and it was then that his solicitors and counsel demanded that he sign the written instructions to enter the pleas of guilty.
Mr Matthews also said nobody gave any explanation to him about the principles of doli incapax; nothing was said to him about that topic. In the end, just to get rid of his solicitors and counsel, he told them he was guilty. He said at the time he signed the written instructions they were standing over him and he felt pressured to sign it because they kept telling him that he was going to get a lighter sentence.
Mr Matthews was cross examined on a number of issues which are not necessarily relevant to this application in relation to counts 1 and 2. Mr Matthews only gave very general evidence in relation to the issues arising on count 4, he said he had not made any particular admissions to the Police in relation to count 4. The position is different in relation to counts 1 and 2. As will be seen, I have treated count 4 differently from counts 1 and 2.
The Prosecution called in evidence counsel who appeared for Mr Matthews at the time his guilty pleas were entered. He gave evidence about attending the cells with his instructing solicitor to obtain instructions from Mr Matthews. Those instructions were obtained on 11 January 2018 and were in writing. They were obtained following a proposal put by the Prosecution that if Mr Matthews was to plead guilty to counts 1, 2 and 4 then count 3, the much more serious count, would be withdrawn. It was on that basis that counsel and solicitors attended upon Mr Matthews in the cells on that day, he having been brought from the Mount Gambier Prison. Counsel gave evidence about the advice he gave on counts 1 and 2 and said that in relation to count 4, Mr Matthews was equivocal in relation to the allegation. He gave advice based upon the whole of the circumstances then confronting Mr Matthews, particularly the case to be put by the Prosecution in relation to counts 1 and 2. He said no pressure was put upon Mr Matthews, no threats were held out to him and he spoke to him in a normal tone. He told Mr Matthews that if he was not happy to enter his pleas, he was well within his rights to proceed to trial and he could contest the charges. Mr Matthews was told that if the matter went to trial, it was very likely that the Prosecution would also proceed with count 3. As he was giving advice, the instructing solicitor was taking notes. Those notes eventually became the written instructions to the solicitors and counsel dated 11 January 2018. That document is Exhibit D2 before the Court. With appropriate redactions, it reads as follows:-
I have been given advice in relation to these charges. Present have been (my) barrister and (my) solicitor.
Signature of Mr Matthews.
The DPP has offered to withdraw count 3 which is persistent sexual exploitation of… For this to happen I must plead guilty to the other three counts.
Signature of Mr Matthews.
By pleading guilty I accept the facts they have made. In short it is…
This will be as a background to the other offending in…
Signature of Mr Matthews.
By pleading guilty, I cannot later say I did not do it.
Signature of Mr Matthews.
In relation to penalty there has been no offer by the DPP. It is difficult to give a proper advice as to two of the counts were as a juvenile.
However I have received advice that I will receive less by pleading guilty than I would if I was to be found guilty after pleading not guilty.
Signature of Mr Matthews.
Having said that I understanding that it is my right to plead not guilty and fully test the Prosecution witnesses BUT I want to plead guilty to the three charges.
Signature of Mr Matthews.
Whilst my lawyers have given me advice I agree they have left it to me if I am guilty or not guilty. I have decided to plead guilty and this is my decision and my decision alone.
Signature of Mr Matthews.
Second signature of Mr Matthews.
Signature of the solicitor.
Counsel was then asked whether there were any discussions about Mr Matthews’ age in the advice about counts 1 and 2. He said there were some discussions about his age given he was still a young boy at the time of the alleged offences. The position was different on count 4 because at that time he was in his mid-twenties. Counsel said there was always an issue about whether Mr Matthews was to be sentenced as a juvenile with respect to counts 1 and 2 and as an adult under count 4. That was an issue which was discussed and a matter that was further to be pursued by the solicitor.
In cross examination, counsel was asked whether he had any discussions with Mr Matthews about his criminal capacity at the time, he being potentially under the age of 14 years for counts 1 and 2. Counsel said he could not recall having any such discussion about criminal capacity. Counsel was then asked whether he could recall whether Mr Matthews read the document. He said he could not recall whether he actually read the document himself but he was taken through it and he was given the opportunity to sign various paragraphs. It was made clear to him that he could always plead not guilty if that was his wish.
I refer again to the Information for arraignment on 16 February 2016. On count 1, the applicant is charged with indecent assault of a female between 31 July 1960 and 30 July 1962. On 31 July 1960, Mr Matthews was 12 years and 8 months of age. Under the second count, Mr Matthews was charged with indecent assault of a female in the period between 27 August 1960 and 26 August 1961. It is not in contest that on 26 August 1961 he was 13 years and 8 months. On 30 July 1962 he was 14 years and 8 months. He contends he was under the age of 14 years when the offending is alleged to have occurred under counts 1 and 2. It cannot be known whether that is the case and for the purposes of the application, it is appropriate that I proceed on the basis that Mr Matthews was under the age of 14 years at the time when counts 1 and 2 are alleged to have occurred. I consider that is an appropriate assumption to make bearing in mind that he only turned 14 years of age in December 1961.
In Field and Anor v Gent,[1] Mulligan J held as follows:-
…a person under the age of 10 years cannot commit an offence: s 5 of the Young Offenders Act 1993 (SA). At common law as modified by s 5, there is the presumption that a person between the ages of 10 years and 14 years is doli incapax, lacking capacity to commit an offence. This presumption is rebuttable upon proof not only of the actus reus and any necessary mens rea, but also that the person had sufficient capacity namely knowledge that he or she was, according to the principles of ordinary people, doing wrong: R v M (1977) 16 SASR 589; C v Director of Public Prosecutions [1996] AC 1.
[1] (1996) 67 SASR 122 at 128.
Mulligan J explained that the policy of the law as revealed by the presumption was to protect young children from the rigour of the criminal law in certain circumstances. As a result, it is necessary for the Prosecution to rebut the presumption of doli incapax in relation to a child. On the question of the discharge of that presumption, in R v Johnson,[2] Peek J (with whose judgment Sulan and Stanley JJ agreed) said at [87]-[92] as follows:-
[2] [2015] SASCFC 170 at [88].
The law as to doli incapax
In South Australia between 1941, when the common law was displaced by statute, and 1972, when an amendment to the Juvenile Courts Act 1971 (SA) raised the age to ten, the age of criminal responsibility of a child was eight years. Before 1941 the common law position was that a child below the age of seven could not be guilty of a felony. A child over 14 was fully responsible for committing a felony. Accordingly, in the years 1963 to 1966, a child between the age of eight and 14 was presumed to be doli incapax but the Crown could rebut the presumption.
In The Queen v M, this Court considered the test to be applied when considering rebuttal of the presumption by the prosecution. Bray CJ (with whom Bright J concurred) held that in order to prove that a child between the ages of seven and 14 was not doli incapax, the prosecution had to prove that at the relevant time, the child knew the act was wrong according to the ordinary principles of reasonable or ordinary men. Sangster J considered that the test was whether the prosecution had proved that at the time the alleged act was committed the child knew the act was wrong. Thus, the Court did not consider that the test required the Crown to prove that the child knew the act was “seriously wrong”, holding that the authorities which suggested this really involved nothing more than a question of emphasis.
In R v Whitty, Harper J adopted the test framed by Bray CJ and said:
It seems to me that this test is helpful in deciding whether a child between the ages of 10 and 14 knew what she was doing was wrong. If a child is capable of understanding that the act in question is such as in any well ordered society it would subject the offender to punishment, then in my opinion the child has the requisite degree of understanding.
Later in C v Director of Public Prosecutions, Lord Lowry, speaking for the House of Lords, summarised the doctrine of doli incapax as being that a child is presumed not to know the difference between right and wrong and therefore to be incapable of committing a crime because of lack of mens rea; and that “wrong” means gravely wrong, seriously wrong, evil or morally wrong. His Lordship referred to the judgment of Woolf LJ in IPH v Chief Constable of South Wales where it was held that that before a child under the age of 14 could be found guilty of a criminal charge, there had to be evidence before the court which satisfied it that the child appreciated what was being done was “seriously wrong and went beyond mere naughtiness or childish mischief”.
In C v Director of Public Prosecutions, Lord Lowry considered that the phrase “seriously wrong” is conceptually obscure but when the phrase is contrasted with “merely naughty or mischievous”, its meaning is reasonably clear. His Lordship identified two requirements for rebutting the presumption. The first is that the prosecution must prove that the child did the act charged and that when doing that act, he knew that it was a wrong act, as distinct from an act of mere naughtiness or childish mischief; proof to the criminal standard is required. His Lordship referred to the formulation adopted by Lord Parker CJ in B v R, referred to in both The Queen v M and R v Whitty, to the effect that “guilty knowledge must be proved and any evidence to that effect must be clear and beyond all possibility of doubt”.
The second requirement identified by Lord Lowry is that evidence limited to the mere proof of the doing of the act charged, however horrifying or objectively wrong that act may be, is insufficient to prove the child's guilty knowledge. His Lordship observed that the cases seem to show, predictably enough, that the older the child is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge and that, in that context, surrounding circumstances are relevant (citations omitted).
Peek J concluded at [98] that in order for the child of 10 years of age to have a requisite state of mind necessary to rebut the presumption of doli incapax, the jury have to be satisfied beyond reasonable doubt that the child knew that his action was wrong in the sense that it attracted criminal responsibility and that he would understand that he was subject to punishment for the act with which he was charged.
The evidence before me is that no separate advice was given to Mr Matthews on the principle of doli incapax, the burden upon the Prosecution to rebut the presumption of doli incapax and the necessity for the jury to be satisfied beyond reasonable doubt that Mr Matthews knew that his act was wrong in the sense that it attracted criminal responsibility and that he understood he was subject to punishment for the act (with which he is now charged). In my opinion, in the absence of that advice, and based upon the presumption in relation to age of Mr Matthews as I have set out above, I accept the submissions of Mr Matthews that it would be a miscarriage of justice to allow the guilty pleas to counts 1 and 2 to remain.
This miscarriage of justice arises out of the lawyers’ failure to inform Mr Matthews of the presumption of doli incapax and the burden upon the prosecution as a result. When he gave his instructions to the lawyers, Mr Matthews did not have advice on this principle so that he did not make his decision and give his instructions in a fully informed way. That is sufficient reason to find that a miscarriage of justice has occurred and the Court’s discretion ought to be exercised in his favour. Mr Matthews should have permission to withdraw his pleas on counts 1 and 2 on the Information.
However, that is not to say and must not be understood to say that there is any other basis upon which he should be given permission to withdraw his pleas of guilt or that there is any basis to suggest that the prosecution may not be in a position to discharge the presumption. Mr Foundas made forceful and cogent submissions on this point that have very obvious weight, but they do not here inform my primary task of the exercise of my discretion. I will address the question of the factual matters upon which Mr Matthews gave evidence when I consider Count 4.
I turn then to count 4. The principles in relation to an application for leave from the Court to withdraw a guilty plea are well settled. These principles may be summarised as follows:-
1. The accused bears the onus of showing that being held to a guilty plea will result in a miscarriage of justice to the accused;[3]
2. An informed guilty plea which results from a conscious decision by an accused to enter a plea of guilty in the usual course should be treated as final and generally will only be upset if a Court is satisfied that some miscarriage of justice has occurred;[4]
3. Generally, a guilty plea will be seen to be an admission to all of the elements of the offence and so a Court will not usually lightly interfere with a guilty plea, however, the Court has a residual discretion to prevent all forms of miscarriage of justice;[5]
4. Each case turns on its own peculiar facts. A Court will accept that from time to time mistakes will be made by counsel in giving advice to an accused person but that of itself would not establish a miscarriage of justice if the accused person is bound to that guilty plea.[6] It is insufficient only that for there to be different advice based upon the same fact. Merely because fresh counsel take an entirely different view of the potential of the Prosecution case or the defences of an accused does not necessarily mean that there will be a miscarriage of justice;[7]
5. The Court is able to have an overview of the adequacy of advice given to an accused. In doing so, a Court must have regard not only to the specific advice given to an accused but also in relation to the overall advice and its effect upon an accused at the time he makes a decision to follow that advice and enter a plea of guilty. It is well settled that merely because counsel does not discuss a particular defence does not mean that an accused will be entitled to an order for the withdrawal of a guilty plea entered in the exercise of free choice understanding the nature of the case against the accused;[8]
6. 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.[9] All of these decisions recognise that for an accused person, the choice to be made is whether to proceed to trial or to accept a penalty based upon a guilty plea. All manner of considerations will come into the mind of an accused person and all of those separately or in combination will produce a number of ordinary human reactions including fear, tension and in the end, the pressure that comes on any person who is required to make a decision. That is why those matters, of themselves, will not be sufficient generally to justify the exercise of the Court’s discretion. They are all part of the usual human experience.
[3] R v Pugh [2005] SASC 427 at [196].
[4] Pugh at [195].
[5] Hinton v O’Dea (1977) 16 SASR 234 at 235.
[6] Pugh at [39].
[7] Pugh at [48].
[8] R v Brooks (2007) 96 SASR 478.
[9] Western (a pseudonym) v The Queen [2015] VSCA 354; R v Simmons [2017] SASCFC 49 and R v Chiron [1980] 1 NSWLR 218.
In his submissions, Mr Lloyd conceded that I was unlikely to allow the plea in relation to count 4 to be withdrawn.[10] It is not necessary here to develop the reasons why Mr Lloyd made that concession. As a result, no further submissions were made on the point by the Prosecution.
[10] T36.24.
This concession by Mr Lloyd does not relieve me of the necessity to consider and exercise my discretion here. The circumstances are obviously different for count 4 than counts 1 and 2. On this count, the question of balance of relevant considerations largely (but not completely) turns upon factual matters.
I have earlier summarised the evidence of Mr Matthews. He intended to persuade me that he was overborne in his judgment, did not understand what was happening and agreed to plead guilty “just to get rid of the lawyers.” He also said that he was labouring under a difficulty of not having his glasses.
The evidence of counsel is that at the time advice was given to Mr Matthews of the benefit of an early guilty plea, of the issues which confronted him and the offer of the Director, no pressure was put upon him. There were no occasion(s) that Mr Matthews was told to sign anything. It was entirely a matter for him.
In my opinion, even if I was to prefer the evidence of counsel over the evidence of Mr Matthews, that is not the end of the matter in relation to this count.
I consider that there are other matters that are required to be weighed in the balance of the exercise of my discretion. I have already found that Mr Matthews should have leave to withdraw his guilty pleas in relation to counts 1 and 2. That exercise of my discretion turned largely upon the fact that Mr Matthews was not advised in relation to the principle of doli incapax and the rebuttable presumption that is required to be discharged by the Prosecution. I have earlier set out the content of the written instructions of the solicitor for Mr Matthew. The question of the age of Mr Matthews was only raised in the context of sentencing. According to that record, it was not raised in the context of the entry of pleas of guilty to the charges that Mr Matthews faced. Mr Matthews therefore has not received advice in a complete sense. This is because he has not received advice concerning his plea to count 4 in the context of the appropriate advice that he should have received in relation to counts 1 and 2. That factual circumstance removes this matter from the factual circumstances that were applicable in relation to the authorities applicable such as Western, Simmons and Chiron.
This is not failure to discuss a particular defence to a charge, it is a situation where advice should have been given in relation to the principle of doli incapax, the requirement for the Prosecution to discharge the presumption and any advice that may follow in relation to the capacity of the Prosecution to discharge that presumption. In the negotiation, each of counts 1, 2 and 4 were connected as a group, there was no separation in relation to them and the advice to Mr Matthews in relation to them was given without any separate consideration and advice upon the particular counts. Mr Matthews’ attempted to satisfy me in his evidence that he was, as it were, overborne in the exercise of his judgment at the time he gave instructions. In the view I have formed, I do not need to decide that issue.
I consider that having regard to the way that each of counts 1, 2 and 4 were dealt with together and advice was received on them together, an occasion of unfairness arises in relation to Mr Matthews, in relation to count 4. A miscarriage of justice arises as a result because of a failure to separately advise Mr Matthews in relation to count 4 and because count 4 was dealt with homogenously with counts 1 and 2 in respect of which separate advice should have been given. Put another way, Mr Matthews had to be given the opportunity to give instructions in relation to count 4 based upon the whole of the advice that should have been given to him in relation to counts 1 and 2. He was not given that opportunity. In those particular unique circumstances, which removes this case from the scope of the authorities applicable on the withdrawal of guilty pleas, I consider that there has been a miscarriage of justice such that Mr Matthews should be given leave to withdraw his guilty plea in relation to count 4 as well.
My orders are as follows:-
1. Leave to the accused Mr Matthews to withdraw his guilty pleas in relation to counts 1, 2 and 4 entered in this Court on 15 January 2018;
2. This matter be listed for arraignment for trial on Wednesday 15 May 2019;
3. Liberty to apply.
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