R v Milton - [2009] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILTON
[2009] SASC 44
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
26 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Appeal - application for extension of time within which to seek permission to appeal against convictions - on 9 June 1989 applicant pleaded guilty to two counts of threatening life and one count of common assault - applicant sentenced to a suspended term of imprisonment - extension of time refused by Judge of Supreme Court - application renewed to a Full Court - whether a miscarriage of justice occurred - whether appeal would have any prospects of success.
Held: application for extension of time refused.
R v Parenzee (2007) 101 SASR 456; R v Collis (1989) 43 A Crim R 371; R v Liberti (1991) 55 A Crim R 120; R v Moxham (2000) 112 A Crim R 142; R v Clayton (1984) 35 SASR 232; R v Roach (1990) 54 SASR 491; Hinton v O’Dea (1977) 16 SASR 234; R v Brooks (2006) 95 SASR 369; R v Pugh (2005) 158 A Crim R 302; R v Frantzis (1996) 66 SASR 558; Meissner v The Queen (1994-1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Murphy [1965] VR 187; R v Day (2002) 82 SASR 85; Day v Police (2005) 92 SASR 1, considered.

R v MILTON
[2009] SASC 44
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
THE COURT

This is an application for an extension of time in which to seek permission to appeal against convictions recorded two decades ago.
Introduction
On 8 December 2008, an extension of time was refused by a Judge of this Court. The learned Judge observed:
Mr Milton, I have given you plenty of opportunity to explain the background to me and I want you to understand that I am not here to give any opinion on the dispute that you have had, I am here simply to see whether the leave of the court should be granted to allow you to proceed with this matter and I regret to say that there is no possibility of that happening. I have read through your reasons in the document that you have provided to the court and there is no legal basis upon which I can extend time within which to appeal, so the application for an extension of time within which to appeal will be refused on the basis that the documents before me disclose no basis upon which the court could interfere with the sentence which was imposed.
Mr Milton has renewed the application before this court. The application is many years out of time.
Mr Milton was charged on Information with two counts of threatening life and one count of common assault. On 9 June 1989 Mr Milton pleaded guilty to each charge in the Supreme Court. Mr Milton was represented by counsel at the time of entering his pleas. There is no suggestion that he did not have sufficient opportunity to consult with counsel about the pleas.
During sentencing submissions a psychiatric report from Dr Czechowicz dated 7 June 1989 provided to Mr Milton’s solicitors was tendered. Dr Czechowicz outlined the history provided by Mr Milton:
Mr Milton told me that he was in gaol because he was harassed and that the events occurred because the Guardianship Board, an oppressive organisation, had been unreasonably pressing him to manage his mother’s estate, something which Mr Milton and his mother did not agree with. He said that matters which bought [sic] it to a head was a letter from the Guardianship Board which advised him of the need for an appraisal of his property by the Public Trustee. He said that the letter suggested that the house should be sold or rented on his mother’s behalf. He said that this upset him quite a lot and that he rode his bicycle to Stirling on the day in question.
He said he obtained the information where the magistrate lived from his contacts, through having acted in the past as a bailiff and debt collector. He said he made sure to check the correct place of residence from two sources. He said he got there late in the afternoon and waited till the magistrate came home. He watched him park his car and then accosted him in a very dark garden path. He said “I was a bit upset, I abused him, I pushed him twice and then after the initial outburst we settled down to a rational discussion. The whole incident took six or seven minutes. The magistrate’s daughter came out and interupted [sic] during the course of the discussion.”
He said that after this brief encounter he left and returned home and then went to work as usual on the next day and was picked up by the Police on the day following, which was a Wednesday and essentially spent the rest of the time at the Adelaide Remand Centre.
I questioned him specifically about whether he intended to harm or kill the magistrate. He said that he had made a threat to kill him if the house was sold and he said that this threat was no longer valid because last Friday the Guardianship Board had decided in his favour not to sell the house and allow him to stay there.
He said that he felt he was being detained unreasonably because he did not have any record of previous aggressive outbursts but that he only reacted in this way because he was being oppressed by an arm of government which he distrusted.
Mr Milton was sentenced to imprisonment for 12 months on each count of threatening life, to be served concurrently. On the count of assault he was imprisoned for six months cumulative on the concurrent 12-monthF sentences. This resulted in a head sentence of 18 months. A non‑parole period of nine months was fixed. The sentences were suspended on Mr Milton entering into a supervised good behaviour bond with conditions relating to treatment and not having contact with the victims of his conduct.
Following sentencing, Mr Milton was asked by the sentencing Judge whether there was anything else that he wished to ask the Judge to “try and sort out”. Mr Milton responded:
Well, no, I’m really appreciative of your efforts and discretions on both sides. I think I’ve been extraordinarily fairly dealt with. I didn’t expect it to be this prompt, to be free as soon as I’m obviously going to be and I’m very appreciative of the court to give me the opportunity and certainly don’t intend to let the court down.
The Application for Permission
The test for a grant of permission to appeal is whether the matters sought to be agitated by an applicant are reasonably arguable. Permission to appeal will not usually be granted if a ground is not reasonably arguable or if it lacks substance. The central issue is whether a proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission to appeal.[1]
[1] R v Parenzee (2007) 101 SASR 456 at [22].
The onus is on an applicant to establish that to hold the person to a plea of guilty would result in a miscarriage of justice.[2] The courts adopt a cautious approach to allowing a change of plea. This approach recognises the public interest in the finality of proceedings and the fact that a plea based on legal advice is ordinarily regarded as an unequivocal and informed admission of the elements of the offence charged.[3]
[2] R v Collis (1989) 43 A Crim R 371.
[3] See R v Liberti (1991) 55 A Crim R 120 at 122; R v Moxham (2000) 112 A Crim R 142 at 144; R v Clayton (1984) 35 SASR 232 at 234 and R v Roach (1990) 54 SASR 491 at 494.
Courts have taken the view that a conviction founded on a plea of guilty should not be lightly set aside.[4] In Liberti, Kirby J identified the policy reasons underlying this view: [5]
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.
[4] Hinton v O’Dea (1977) 16 SASR 234 at 235; R v Clayton (1984) 35 SASR 232 at 234.
[5] R v Liberti (1991) 55 A Crim R 120 at 122.
Relevant Principles
It is helpful to record a number of relevant principles arising from the authorities.
As a general rule, an informed and deliberate plea of guilty should be treated as final unless an appellant can establish that a miscarriage of justice has occurred.[6]
[6] R v Brooks (2006) 95 SASR 369; R v Pugh (2005) 158 A Crim R 302 at [195] – [203]; R v Frantzis (1996) 66 SASR 558.
In Meissner[7] the members of the High Court considered the circumstances in which a guilty plea could be withdrawn. The Court concluded that a plea of guilty or not guilty must be made by an accused as a matter of free choice. Where the court acts on the assumption that a plea of guilty has been freely made and that is not in fact the case, the court will be misled. Where the court has been denied knowledge of the true circumstances of the plea there is a risk of adverse interference with the proper administration of criminal justice. It was further held that where the means used to influence the plea of an accused are improper, and result in the removal of the element of free choice, such conduct has the tendency to pervert the course of justice. Brennan, Toohey and McHugh JJ observed:[8]
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person's legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other hand, to pay the accused's legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused's freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution. When the offer of assistance is actuated by several purposes, one of which is to protect the interests of the accused, liability must depend on whether or not the latter purpose was the real purpose that actuated the offer.
Deane J considered that:[9]
The proper administration of criminal justice is, to no small extent, dependent upon the ability of courts to proceed on the basis that a plea of guilty or not guilty, with all that it entails, is made by an accused in the exercise of his or her own free choice. To endeavour, by intimidation, inducement or other means, to overbear the free choice of a person to plead not guilty and thereby bring about a tainted plea of guilty is clearly to attempt to pervert the course of justice in the sense of attempting adversely to interfere with the proper administration of justice. And that is so even in a case where the person whose free will is sought to be overborne is, or is thought to be, guilty [cf R v Kellett [1976] QB 372 at 388]. Obviously, in such a case, circumstances may arise in which the borderline between what constitutes legitimate persuasion of an accused person to plead guilty and what constitutes the offence of attempting to pervert the course of justice will be difficult to discern. When those circumstances arise, the relationship between the parties and an overall perception of real criminality are likely to be of particular significance. Thus, for example, a degree of pressure which would be quite legitimate if exerted by an accused's own lawyer acting solely in the accused's interests (eg in a “plea bargaining” or “sentence indication” situation) may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own.
Dawson J commented:[10]
The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
[7]    Meissner v The Queen (1995) 184 CLR 132.
[8]    Meissner v The Queen (1995) 184 CLR 132 at 143-144.
[9]    Meissner v The Queen (1995) 184 CLR 132 at 148-149. (footnotes included in text).
[10] Meissner v The Queen (1995) 184 CLR 132 at 157. (footnotes omitted)
An important although not critical consideration is whether the plea was attributable to a consciousness of guilt. In Maxwell Dawson and McHugh JJ observed: [11]
The plea of guilty must … be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.
[11] Maxwell v The Queen (1996) 184 CLR 501 at 511.
Where a plea has been entered following legal advice, a withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement and there exists a substantial issue to be tried.
The Application
The powers of the court to allow an appeal are found in section 353(1) of the Criminal Law Consolidation Act 1935 (SA). That section provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The relevance of this subsection is that the Court may allow an appeal in the circumstances set out. The section provides the relevant test. Authorities have discussed the circumstances that may lead to the allowing of an appeal but none of the expressions appearing in those authorities can be substituted for the tests identified in section 353(1).[12]
[12] R v Murphy [1965] VR 187 at 188, 190; Meissner v The Queen (1995) 184 CLR 132 at 141-142, 157; R v Frantzis (1996) 66 SASR 558; R v Day (2002) 82 SASR 85.
Critical to Mr Milton’s application is an examination of his submissions and the proffered material to ascertain whether an appeal, if permission were to be granted, would have any prospect of success. The matters advanced by Mr Milton appear to relate to a perceived grievance that he had and continues to have with the Guardianship Board and Public Trustee. At times his allegations include allegations of misconduct against the South Australia Police. None of the matters identified suggest that any defence to the charges existed.
The allegations appear to conflict with statements made by Mr Milton to the sentencing Court and in the history that he provided to Dr Czechowicz. Generally the submissions advanced by Mr Milton, although possibly providing background to his offending conduct, do not suggest any semblance of a defence.
Further allegations made by Mr Milton relate to his legal representation. The allegations are of a general nature and lack any adequate particularity.
As earlier discussed, where a plea of guilty has been entered after legal advice, the discretion to allow the plea to be withdrawn will only be exercised in favour of the defendant where it can be shown that there was a material mistake, misunderstanding or improper inducement and that there is a substantial issue to be tried which could materially affect the outcome of proceedings.[13]
[13] R v Pugh (2005) 158 A Crim R 302 at [198]; Day v Police (2005) 92 SASR 1.
Nothing in the grounds filed by Mr Milton suggests that, at the time of entering his pleas of guilty, he was under a misapprehension about the nature of the charges or the evidence, that he misunderstood the effect of any legal advice that was given to him or that he entered his plea as a result of an improper inducement which vitiated his free choice to plead guilty.
Nothing in the grounds filed by Mr Milton supports a submission that there would be a miscarriage of justice in requiring the plea to stand. None of the matters raised by Mr Milton in his outline support a submission that there is a serious matter to be tried or that the elements of either of the offences to which he pleaded guilty could not be made out.
Conclusion
On 9 June 1989, almost 20 years ago, the applicant represented by legal counsel, pleaded guilty to the two counts of threatening life and the one count of assault. Through his counsel he acknowledged his guilt. He tendered to the sentencing Judge a psychiatric report that contained a history consistent with and confirming the appropriateness of his pleas. He was sentenced to a suspended term of imprisonment and complied with the terms of his suspended sentence bond. There is nothing in the material placed before the Court by the applicant that would suggest that any appeal, if permission were to be granted, would have any prospect of success. In these circumstances the application to extend time should be refused primarily on the ground that any appeal would have no prospect of success.

This application is refused.