R v Patrech

[2024] NSWDC 686

District Court

New South Wales

Medium Neutral Citation:

R v Patrech [2024] NSWDC 686

Hearing dates:

11, 13 November 2024

Date of orders:

13 November 2024

Decision date:

13 November 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [47]-[48], [54]-[55].

Catchwords:

CRIME – APPEAL FROM LOCAL COURT – Appellant went to Local Court to seek an adjournment because of revocation of legal aid – Local Court did not want to grant an adjournment – Prosecutor believed case settled, but Appellant always sought an order under the Mental Health Legislation – Even after Local Court recorded a conviction and made an Apprehended Personal Violence Order Appellant continued to seek orders under Mental Health Legislation – “Advice” given by Local Court was incorrect – Denial of procedural fairness – Convictions set aside – Orders made under Mental Health Legislation.

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 14 and 19.

Legal Aid Commission Act 1979 s 57.

Crimes Act 1900, s 556A.

Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 12.

Cases Cited:

White v R [2022] NSWCCA 241 at [58], [62] – [63].

Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37 at [15] – [19].

R v Murphy [1965] VR 187 at 191.

R v Sagiv (1986) 22 A Crim R 73 at 80.

R v Concotta (NSWCCA, 1 November 1995, unreported).

R v McLean [2001] NSWCCA 58.

R v Van [2002] NSWCCA 148.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Appellant – Adam Patrech
Crown – R (NSW)

Representation:

Counsel:
Appellant – Mr Warr, T.
Crown – Mr Betts, L. (Sol. Ad.)

Solicitors:
Appellant – Legal Aid
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s):

2022/00380160; 2023/00248540

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

11 August 2023

Before:

Magistrate Barko

Judgment

1. HIS HONOUR: This is an appeal from a decision of Magistrate Barko sitting in the Downing Centre Local Court on Friday, 11 August 2023. The grounds given in the Notice of Appeal are these:

"I am appealing the above conviction/order because I am not guilty.

I am appealing the above sentence because the penalty is too severe.

I am appealing the above because I contest the Apprehended Violence Order made in these proceedings."

2. As anyone who has dealt with these matters knows, there is a formulaic Notice of Appeal form and the grounds of the appeal are usually indicated by merely ticking which ground of appeal the appellant relies upon. In the present case, all the grounds provided in the form have been ticked.

3. Counsel for the appellant has identified the relief sought in this fashion:

"(a) The pleas of guilty to two offences of intimidation (sequences 3 and 4) entered on 11 August 2023 be traversed and the convictions set aside.

(b) The discharge of the offences under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 [‘Mental Health Act’] and an order that the appellant be placed under the care of Dr Dennis Shum with a treatment plan of fortnightly counselling sessions and compliance with the medication determined by Dr Shum for a period of 12 months.

(c) The personal violence order made by Magistrate Barko on 11 August 2023 for a period of two years with conditions 1, 2 and 9, remain."

4. Originally the appellant was charged with two offences of stalking or intimidating with intent to cause fear of physical or mental harm (domestic). He entered pleas of not guilty to those charges and the proceedings were eventually listed for hearing before the Downing Centre Local Court on 11 August 2023. The date of the first offence alleged was 14 December 2022 and the date of the second offence alleged was 22 October 2020.

5. Doing the best I can on the evidence available to me, a dispute arose between the complainant, Shane Kelly, who had been married to Ms Jo‑Ann Beames. Up until the end of 2015 the appellant was practising as a psychologist. He stopped practising in December 2015. He had been treating Ms Beames until he reported himself to AHPRA.

6. In an email that the appellant sent to the Local Court on 11 August 2023 at 8.17am, the appellant said this:

"I have asked from the outset for this matter to be deemed a personal violence and not a domestic violence matter and was assured by Constable Hindmarsh around 1 July that this was the case. I then ceased pursuing witness statements and evidence proving no relationship between Ms Beames and I - which is supported by Constable Hindmarsh's statement on page 13, paragraph 17 of the brief stating she could find no evidence of a romantic link between us. However, in recent days, Prosecutor Eisen has indicated that I am still being charged with the offences and the PV offences are a backup.

I had asked for PV offences to be indicated so that Mr Kelly and I could attempt to resolve the issue of the allegation of an affair in a closed forum via shuttle virtual mediation so that we would not meet as neither of us has a desire to meet the other one. His allegations are key in my Psychology Registration application and were entered there by me as a self‑referral as I had an affidavit by Kelly stating sexual liaisons with a patient which I made a mandatory self‑report about. Somehow that was accepted by AHPRA as if it was a proven fact."

7. The allegations of intimidation occurred because of phone calls made by the appellant to Mr Kelly and perhaps vice versa. After the appellant and Ms Beames became flatmates, it would appear in or around May 2020, the appellant wished it to be known that there was no sexual relationship whatever between himself and Ms Beames either before the end of 2015 or at any time thereafter.

8. When the appellant came to the Local Court on 11 August 2023, he did so with the intention of seeking an adjournment. Exhibit A is a series of emails which ends with a lengthy email from the appellant addressed to the Local Court on 11 August 2023 at 8.17am which was also sent to police officers involved with the appellant's case, to complaints with Legal Aid about grants of Legal Aid, and to various solicitors with whom the appellant had had contact. The email opens with a statement that the appellant wished to make an adjournment application to pursue his application to Legal Aid. It then continues in this fashion:

"Please note I had a barrister lined up since January, but because [he] did not get the brief until July and wasn't able to access recordings due to paperwork repeatedly going missing [when] allegedly sent by police (the last parcel was delivered to the Downing Centre Court as my address), he passed the case back to Legal Aid indicating he could not possibly prepare in the short time left.

When I was contacted by the next Legal Aid solicitor (name redacted), I passed on the documents I provided him (including the 58 page brief) as well as statements made by Sergeant Aaron van Schaik in Coffs Harbour to have me scheduled under the Mental Health Act, he stated I should undergo an assessment under section 14 of the Mental Health Act and also opined that I was 'unhinged'.

I have asked Legal Aid to fund assessments but, as I am currently unrepresented, I cannot self‑refer and all of Legal Aid's grant money that had been allocated to the matter and which [the barrister] had believed would fund subpoenas is currently frozen and awaiting a decision from Legal Aid which I am appealing to the Legal Aid Review Committee (LARC) as I am still on the [roll] of local lawyers and wanted that to be taken into consideration whilst awaiting for a new solicitor to be appointed who can make the appropriate referrals.

Regardless, my primary defence is, and always has been that the intention of contact with Shane Kelly was not to scare him into not contacting police but to dare him to do so, or to sue me, or both. I now have the ability to appear in court in an open forum and face my accuser who has publicly vilified me for years. I did not even learn about his accusations of an affair with his then wife until she contacted me in December 2018 - three full years after I had last seen her and had voluntarily withdrawn my registration of 16 years standing to attend to a very bitter family law separation involving children, property and a partnership business with my ex‑wife [name redacted] who is also duly accredited in clinical psychology and was a family lawyer for many years.

[My wife's] family lawyer was [name redacted] who Shane Kelly also states he went to for advice in mid‑2016. That date is important as I ceased as a psychologist in December 2015 and commenced relocating to Melbourne from 23 January 2016, fully residing there from March 2016. Mr Kelly … states that his ex‑wife Ms Beames has been having an affair with me as her psychologist in June 2016 and that this 'fact' led to his marital breakdown. That allegation is hotly disputed and contemporaneous medical records indicate that he had reported that his 'marriage was on the rocks' prior to when Ms Beames ever met me."

9. On his way to Court on 11 August 2023, the appellant was seeking an adjournment to obtain or reobtain Legal Aid to obtain evidence to support an order under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and if the prosecution were to continue to press allegations of domestic violence, rather than personal violence, to contest that but he was no longer in a position to do so because of his understanding that that had been conceded by the prosecution.

10. It is clear from the transcript that the learned Magistrate was not inclined to grant any adjournment. When his Honour called the matter, the appellant was not then in court. His email of 11 August 2023 sent at 8.15am said that he was about to leave his father's house at Morisset in the Lower Hunter Valley which was some two hours drive from Sydney. He apologised in advance in case he were to be late which he obviously was.

11. The appellant himself appeared before the Magistrate late. Of course, the transcript does not tell us when, but the appearance before him is noted at page 3 line 11 of the transcript. The appellant, commencing at line 36 on page 3 of the transcript, made a discursive opening, if that be the appropriate word, as to the difficulties he had encountered and various allegations that were made against him and insults made against him or adverse comments made about his mental health.

12. At page 7 line 10, the appellant said that he wanted a solicitor to represent him and the learned Magistrate said this. "You've had eight months." That no doubt refers to the time since the commencement of the proceedings which were first returnable before the Local Court on 21 December 2022 and the fact that he the appellant was appearing before his Honour on 11 August 2023. There was then a discussion about when the appellant lost his legal representation, and the appellant told his Honour that he had been advised by the lawyer with whom he had last spoke that he should make an application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to which I shall refer hereafter merely as ‘s 14’.

13. The transcript then continues:

"HIS HONOUR: I have no issue with anybody making an application under the mental health provisions. What I have an issue with is if it means delaying a hearing for another six or eight months…

ACCUSED: No, I, exactly and I, I asked Legal Aid.

HIS HONOUR: Most of the time when it comes to somebody telling me they want to make an application under the mental health provisions is I require them to reconsider their pleas as to whether it's guilty or not guilty and if it's still not guilty, then I'm reluctant to grant an application to deal with the matter under the mental health provisions because it means the matter may be adjourned for another 12 months.

ACCUSED: Yeah …

HIS HONOUR: If I had a plea of guilty on the basis of new [sic] understanding the nature and elements of the charges, and you accept effectively criminal responsibility for them, then we can record the plea of guilty and we can come back and make an application under the mental health provisions.

ACCUSED: Okay. 'Cause I thought, what, what I was told was that it gets diverted out of the criminal system into ..

HIS HONOUR: It does.

ACCUSED: And under this, I, see, I don't know about section, I used to think about section 32. …

HIS HONOUR: The other option I have under section 19 of the new Act is to have you taken against your will into custody to be assessed by a mental health facility.

ACCUSED: Mm-hmm.

HIS HONOUR: .. to determine whether or not you're a mentally ill person. ..

ACCUSED: Yeah and I, I've had that done.

HIS HONOUR: … or a mentally disordered person and if determined not so, to bring you back to court or if you're determined to be so, to hold you against your will under the mental health provisions.

ACCUSED: Yeah.

HIS HONOUR: So I've got a number of options."

14. Why it were necessary for the learned Magistrate to refer to s 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 might be seen as being intimidatory, but may just be part of an attempt by his Honour to dissuade the appellant from making an application under s 14.

15. At page 11 there was reference to the appellant’s making an application to have the matter transferred to this Court if he elected to have trial by jury. His Honour suggested that he would give the appellant some advice about that "after morning tea." That issue was then pursued for a while before the short adjournment was taken. The short adjournment was taken at page 13 line 22 of the transcript. A little earlier in the transcript, the Magistrate pointed out that he would return from the short adjournment after 20 or 25 minutes and he then indicated that he would return to the Bench at ten past 12.

16. At 12.40pm the appellant sent an email to [email protected] and to the lawyers he had earlier emailed on that morning. The email said this:

"Dear all, I am having to make a guilty plea to the charges now and seek a section 14 supervision under the Mental Health Act. The Magistrate indicated that he would accept that and not sentence me to a term of imprisonment. The prosecutor seeking input from Coffs Harbour Police. Can Legal Aid fund that assessment by a psychologist and refer me that way as it is not appropriate for a self‑referral in this case, I have been told. There are no Bar Association people here. Can I discuss it with Legal Aid duty solicitor? I have been served [with] another AVO. This one APVO but it states that I am in a relationship with the PINOP's ex‑wife which is false and would make it an ADVO.

What should I do."

17. Very shortly after the short adjournment the prosecutor told his Honour this:

"Prosecutor: I was just approached possibly with a plea offer. If the matter could stand, I just need to make inquiries in relation to, or to get some instructions in relation to that plea offer. My office is in Coffs...

His Honour: Have you got any criminal history there?

Prosecutor: Yeah.

His Honour: Bail report?

Prosecutor: Yes.

Accused: Does that, does that..

His Honour: One of two things is going to happen. I'm not going to send you to gaol, that's the first thing, on what I've read thus far.

Accused: That's, that's all I'm worried about. I..

His Honour: The second thing is I'm more concerned about your wellbeing.

Accused: And I'm happy to do assessments and take, and I'll do all that. And I'm trying to get assessed but Legal Aid won't, I can't refer myself if I'm nuts. That's what they said.

His Honour: I've read the last very detailed email you sent with the...(not transcribable)...

Accused: Sorry about that. That's, that's..

His Honour: That's all right.

Accused: That's part of the trauma. That does that.

His Honour: I've got nothing better in life to do than read those emails.

Accused: You're not the only one, your Honour.

His Honour: We'll just skip that for the moment and we'll take a deep breath. We'll have a talk about it. We'll see where we're going with it. At face value seems like, and I say face value because you're innocent, as you know, until you're found guilty beyond reasonable doubt - but at face value seems like a pretty strong prosecution case. There's more to it than that. So take a deep breath. Have a chat with the prosecutor and we'll come back to it. She's got all the discs there I can see.

Prosecutor: Got all the discs there. I'm just getting your Honour the updated bail report."

18. Of course, his Honour's calling for the updated criminal history and a bail report are things that he would need if the matter were the subject of a guilty plea. It appears that his Honour was anticipating from what was said by the prosecutor that the matter would settle and then he would be called upon to sentence. No doubt the assurance by his Honour what he would not be imposing a prison sentence did much to persuade the appellant to consider the proposed settlement that had been referred to by the prosecutor.

19. The matter was stood in the list at transcript page 17, line 8. Then when the transcript returns to this matter there was a discussion essentially between his Honour and the prosecutor in which the prosecutor asked whether he could use his mobile telephone at the Bar table to send a text message, probably to the police in Coffs Harbour who were in charge of the matter. Another matter was then interposed. The prosecutor then pointed out that there was a court appointed questioner present in court during the morning. There then was a lengthy chat between his Honour and the court appointed questioner. At page 21, line 21 another matter was interposed. The transcript then recommences thus:

"Prosecutor: Thank you for your time, your Honour. I understand this matter is resolved. The defendant approached me and offered to plead guilty to sequence 1 and sequence 4.

His Honour: Just bear with me for a sec. Oh, right, it's at the front.

Prosecutor: They're simply listed as personal violence offences instead of domestic violence offence.

His Honour: Thanks, I can see that.

Prosecutor: So he offered to plead guilty to sequence 3 and for on the basis of sequence 1 and 2 are withdrawn.

His Honour: Thanks.

Prosecutor: I have instructions to accept that plea offer on the basis that the Court and the defendant accepts a personal violence order in conditions 1, 2 and 9 for a period of two years.

His Honour: Thank you.

Prosecutor: There were also, there will also be agreed facts that the defendant proposed to me. I have a signed copy once those pleas are entered.

His Honour: Thank you. Do you have bail history there? Bail report?

Prosecutor: Yes, I'll tender that. And upon those pleas being formally entered I will tender the agreed facts.

His Honour: Thanks. The application proceedings final orders.

Prosecutor: One, two and nine, two years.

His Honour: Same terms as the provisional?

Prosecutor: Yes, thank you. And to clarify, that's a personal violence order.

His Honour: Yep.

Prosecutor: Thank you.

His Honour: I see: what I'll do is in respect of the domestic violence allegation the application is withdrawn and dismissed in respect of a personal violence order (a), (b), (c) in sequence 9 or order 9. 100 metres.

Prosecutor: Thank you."

20. Thereafter follows some discussion about details to be inserted in the APVO. At page 22, line 41 the prosecutor told his Honour that: "Just to confirm, the defendant has entered pleas in relation to sequence 3 and 4." For that his Honour thanked the prosecutor.

21. By this stage his Honour had not asked the accused whether he had in fact pleaded guilty. There had been up until this time no recording, no admission in court formally by the accused that he was guilty of the offences, however clearly he was present throughout and was able to understand what was going on.

22. At page 24, line 8, the accused starts to make a submission. Again, it is lengthy but towards its end it again refers to s 14. The first part of the accused's submission essentially states that what was happening on that morning, 21 August 2023, is what he originally sought on 21 December 2022 when the matter first came before the Court. The appellant then asked that the matter should be taken as a plea of guilty at the first available opportunity, that is after the police dropped the ADVO charges and merely relied on the APVO charges. The appellant goes on to say this, commencing at the foot of page 24 of the transcript, line 45:

"So I'm exhausting all fora so that finally I can put this to, to the plea for clemency under the - that's a big - before I can do that, I have to make sure I've exhausted every fora and tried everywhere possible. The only thing I haven't done is a civil case against people because I don't have the money to do that or the resources to do that, but what I've done is - I said I'm willing to face these allegations against me in a Court of law, and I came here today with that, and I said that, as long as they withdraw those things about saying that I was having a relationship with my client or hypnotised people in therapy. That's if that was the case, I should be prosecuted. I just can't, I can't plead that because that's on, people read that. It's on the record, the public record now and people read that, not just about me but about other people and that's to me that's ethically and morally inexcusable.

So, and because that is about my mental health as well, and I'm admitting that there are mental health issues and my psychologist has already - I've written to her and got agreement for her to make, she'll see me to make sure that at least either her or my psychiatrist Dr Simon (?) Melvin (?), or my victims' counsellor Finn in Redfern, that, that at least once a week for these next two years I'm seeing one person on that for, for, for a section 14 mental health care plan if people would consider that.

And I've got some kind of I've got some other notes which are..(not transcribable)...because I didn't expect I'd have to put these things in today. The advice I got was to go along and ask for a section 57 [adjournment] and get competent representation. And I think everyone would agree that I'm not competent representation.

So if I could pass up that application or if, if, if your Honour could check the file and see if there was an application to the Local Court made on the 9th, sorry 3 August by email. In there it asks that we change the DVO to a PVO and it asks that I be deemed competent to do this. Like, and I guess in a way I am today. And that - yeah, so, so all that. And then I said the grounds for application and then, I, then I explained everything I've just said. But I put, I put it in a sworn statement, I suppose, in the Court saying that this is what I've been doing....since day 1 because, and I know, I know this looks bad for me reputationally but, hey, I understand all that. But I don't want to ever be caught out in a lie, your Honour. I might choose to do things and say things that, that people think, Adam, that's not appropriate or you shouldn't do that. I understand that by not ever lying. I'm not trying to obfuscate or make these stories up after the fact because I'm intelligent and educated. This is how I've had to live my life for eight years, since some various things happened back in 2015. And I continue to try to clear my name, probably not the best way."

23. That speech continues for a little while but then it was interrupted by his Honour asking the appellant to identify who his treating doctors were. He then refers to Dr Shum, a psychiatrist in East Melbourne whom he was seeing about three times each month. He then referred to Kris Morris, a psychologist in Coffs Harbour who I understand to be a female psychologist, and the victim of crime counsellor Mr Finn Callanan, who is the gentleman from Redfern and was a crime counsellor, social worker and counsellor.

24. There was then a discussion between his Honour and the appellant as to the cost of treatment and the cost of medication and the nature of medication. There was then a discussion between the appellant and his Honour at his Honour's instigation about the use of medicinal cannabis. His Honour then recommended to the appellant that he continue with his medical treatment, be it for his mental health or physical health.

25. The learned Magistrate then referred to his own mental health and possible diagnoses that may be attributed to him. His Honour then expressed the view that the appellant should think positively rather than negatively about his own health. The transcript then continues thus from page 28, line 37:

"His Honour: But there comes a point in time when you've got to say otherwise if I don't do it I'm going to keep being arrested. I'll be locked up. And notwithstanding my education, my background, my position in life...

Accused: Exactly. Thank you.

His Honour: You won't enjoy gaol.

Accused: No, I haven't. I know that, your Honour, and I appreciate you taking the time to think that way. That's, it's refreshing.

His Honour: No, all good. So this, so what I'll do is this.

IN RESPECT OF THE APPREHENDED DOMESTIC VIOLENCE ORDER CONCERNING SHANE KELLY THAT WILL BE WITHDRAWN AND DISMISSED ON THE BASIS THAT AN APPREHENDED PERSONAL VIOLENCE ORDER MADE CONCERNING THE SAME PROTECTED PERSON WILL BE MADE FOR A PERIOD OF TWO YEARS.

ONE, TWO AND NINE.

You understand those orders?

Accused: I do, your Honour."

26. There was then discussion about reading the terms of the APVO that his Honour had announced. There was then discussion about the courthouse at Coffs Harbour. Then his Honour said this commencing at page 29, line 40:

"IN RESPECT OF THE SEQUENCES 1 AND 2 OF THE CHARGE PROCEEDINGS, CHARGE NUMBER 3012, BOTH OF THOSE CHARGES ARE WITHDRAWN AND DISMISSED.

IN RESPECT OF THE NEW CHARGES 3 AND 4, WHICH EFFECTIVELY MAKE THE MATTERS A PERSONAL MATTER, THE DEFENDANT, YOU ARE CONVICTED, PLACED ON AN UNSUPERVISED COMMUNITY CORRECTIONS ORDER TO BE OF GOOD BEHAVIOUR FOR 12 MONTHS, IT IS A CONDITION OF THAT ORDER THAT YOU COMPLY WITH ANY AVO IN FORCE FOR THE PROTECTION OF SHANE KELLY."

27. Immediately after announcing a conviction and imposing the Community Corrections Orders his Honour said this:

"And I've afforded you, notwithstanding the lateness of the pleas, given all the surrounding circumstances, a 20% discount on sentence. And I won't see you again."

28. The appellant's reply to his Honour's last comment is this:

"No, you won't. Thank you, your Honour. Thank you for your time today and sorry for being late."

29. Although the transcript runs for another half a page the conclusion of the interchange between his Honour and the appellant appears to have been quite cordial. The announcement by his Honour of the recording of a conviction effectively precluded the appellant from obtaining the benefit of an order under s 14. In his written submissions, MFI 1 Mr Warr of counsel referred me to the decision in White v R [2022] NSWCCA 241 at [58], [62] – [63]. However, that is authority for the proposition about where there is an application to withdraw a guilty plea prior to conviction. This is an application to withdraw a guilty plea after conviction.

30. This issue was considered by Howie J in Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37. His Honour commenced his judgment by pointing out that there were before him applications for leave to appeal against the decisions of two magistrates in effect refusing applications made by the plaintiff before his Honour that he should be allowed to withdraw a plea of guilty made earlier by him in the Local Court. His Honour set out the relevant legal principles commencing at [15]. They are these:

“15   There are a number of decisions of the Court of Criminal Appeal that have considered the basis upon which that Court will entertain such an application made by an accused person in indictable proceedings in the District or Supreme Court. The principles laid down in those cases apply equally to an application made by an accused before the District Court and they apply with as much force to an application by a defendant in the Local Court. The relevant principles were summarised in R v Van (2002) NSWCCA 148 as follows:

48   What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner (1995) 184 CLR 132; Regina v. Maxwell (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Libertiv. Regina (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v. Houra[2001] NSWCCA 61 at paras 32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:-

"•   Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' (Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).

•   Where the plea was not 'a free and voluntary confession' (Regina v. Chiron(1980) 1 NSWLR 218 at 220 D-E).

•   The 'plea was not really attributable to a genuine consciousness of guilt' (Regina v. Murphy[1965] VR 187 at 191).

•   Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' (Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80).

•   Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' (Regina v. Concotta (NSWCCA, 1 November 1995, unreported)).

•   The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' (Maxwell v. The Queen (supra) at 511).

•   If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' (Regina v. Davies(NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."

49   To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v. McLean [2001] NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of justice; Regina v. KCH[2001] NSWCCA 273 involving improper pressure by counsel and Regina v. Becheru (CCA, unreported 6 April 2001) and Regina v. Toro-Martinez (2000) 114 A. Crim. R. 533.

16   The authorities referred to in the above passage show that the issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea of guilty to convict and sentence the defendant. I simply do not comprehend how a court can resolve that issue or determine that question without evidence from the person who entered the plea of guilty. It may well be the case that evidence from the legal representatives who acted for the defendant at the time the plea was entered might need to be placed before the court.

17   I understand that there are short cuts undertaken in the Local Court because of the pressure on magistrates to deal with applications expeditiously by reason of the sheer volume of matters that come before them. I also appreciate that a degree of informality must attend upon applications made in the Local Court particularly if those applications are of an interlocutory nature. I imagine that there are few occasions when evidence is required unless one of the parties objects for good reason to the relevant material being given from the bar table. I would assume that there is a degree of co-operation between the prosecution and defence representatives as to the manner in which the magistrate will be informed of the factual basis for the various applications that come before the court. I have no doubt that, generally speaking, justice can be done on the basis that the court assumes the existence of certain facts or by the court relying upon assertions made informally by the legal representative of one side or the other.

18   But where the resolution of the application depends upon the magistrate forming a view as to the integrity of a plea of guilty as an acknowledgment or confession of guilt, and where that matter can only be resolved by forming a view as to the defendant’s knowledge and understanding of the effect of a plea of guilty or by determining the circumstances in which the plea was given, there is no room for short cuts or informality. There may be cases where the objective facts make it plain that a doubt must arise about the integrity of the plea, but that would be an exceptional state of affairs.

19   A plea of guilty is clearly a very significant step in a criminal prosecution. The ramifications arising from the plea are obvious. Yet a court is entitled to rely upon that plea as an acceptance by the defendant of his guilt and to convict and sentence him relying solely upon the plea: Meissner v The Queen at 141. The plea of guilty in the Local Court is so significant that a defendant can only appeal to the District Court against conviction following a plea of guilty with leave: s 12 of the Crimes (Local Courts Appeal and Review) Act. Therefore, if there were any basis upon which the integrity of the plea is seriously called into question or any other reason that would make it unfair for the court to act upon the plea, there would inevitably be a miscarriage of justice by refusing to allow the defendant to withdraw the plea and defend the charge.”

31. In the present case essentially, what is relied upon are the dicta in R v Murphy [1965] VR 187 at 191 and R v Sagiv (1986) 22 A Crim R 73 at 80 and R v Concotta (NSWCCA, 1 November 1995, unreported) and R v McLean [2001] NSWCCA 58. That case was summarised in R v Van and referred to Senior Counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact. Here the advice that was being given was in fact by the learned Magistrate.

32. At no time did the appellant seek to withdraw his application under the Mental Health legislation. It was in essence the last thing that the appellant discussed with the Magistrate before the Magistrate pronounced the conviction and imposed the penalty. The chapeau to s 14(1) is this:

"A magistrate may make an order to dismiss a charge and discharge the defendant-"

33. The recording of a conviction effectively precluded the applicant's desire to be dealt with under s 14. The appellant made it quite clear to his Honour that he wanted to be dealt with under that section. Mr Warr's submissions contained this:

"9. On 11 August 2023 Magistrate Barko 'convicted' the appellant so the 'miscarriage of justice' test would (apply) to a plea traversal.

10. The onus for an applicant to withdraw a plea of guilty rests upon the accused person: White v Regina [2022] NSWCCA 241 at [68]. [Although this is the inappropriate case I accept that the onus on this occasion is certainly upon the current appellant]

11. It is submitted that pleas of guilty were not a free and voluntary confession because of factors affecting their integrity and propriety. This submission is made on the basis of the Local Court transcript in the following circumstances:

(i) The appellant being self-represented following the withdrawal of his solicitor.

(ii) The appellant's stated original intent being to adjourn the hearing in the absence of a legal representative.

(iii) The police having corresponded with the appellant shortly before the hearing indicating sequences 1 and 2 would be withdrawn, causing him to cancel his defence witnesses.

(iv) Following the withdrawal of his legal representative two weeks before the hearing the appellant made contact with Legal Aid to secure representation.

(v) He had experienced difficulties obtaining audio files from within the brief of evidence.

(vi) There had been late service of the police brief of evidence beyond the court mandated timetable.

(vii) He suffers from long and serious mental issue in the form of adult ADHD.

(viii) That certain comments made by Magistrate Barko had indicated a strong desire on his part to have the matter finalised immediately.

(ix) That impact of Barko appearing to prejudge the evidence when he remarked that, 'On face value it seems like a pretty strong prosecution case'.

(x) The impact of the comment by Magistrate Barko regarding an involuntary mental health admission when he said, 'The other option I have under section 19 of the new Act is to have you taken against your will into custody to be assessed by a mental health facility to determine whether or not you're a mentally ill person or a mentally disordered person and if determined not so, to bring you back to court or if you're determined to be so, to hold you against your will under the mental health provisions... so I've got a number of options'.

(xi) The comments made by Magistrate Barko inviting him to plead guilty in order to have the matter finalised under mental health provisions. The specific comments being, 'Most of the time, when it comes to somebody telling me they want to make an application under the mental health provisions is I require them to reconsider their pleas as to whether it's guilty or not guilty. It's still not guilty, then I'm reluctant to grant an application to deal with the matter under the mental health provisions because it means the matter may be adjourned for another 12 months.... If I have a plea of guilty on the basis of you understanding the nature element of the charges, and you accept effectively criminal responsibility for them, then we can record a plea of guilty and we can come back and make an application under the mental health provisions.'

(xii) The comments by Magistrate Barko invited the appellant to plead guilty to gain consideration of dealing with he matter under the available mental health provisions before immediately proceeding to sentence upon the pleas being entered.

(xiii) The fact that by records show no consideration was made whatsoever of dealing with the matter under the available mental health provisions upon the pleas being entered. This is despite Magistrate Barko specifically referring its consideration once pleas were entered."

34. I agree that the appellant was expecting to make an adjournment application in order to obtain representations by a competent lawyer. The appellant in Exhibit A gives, after stating his name at the conclusion of his email, his academic qualifications which are these: BSc (Hons), LLB (Hons), MPsych (Clin), Grad Dip Leg Prac, MBA. Clearly, he has a law degree and has completed a Diploma of Legal Practice which may entitle him to be admitted.

35. He refers in one section of the transcript which I have quoted to being an officer of the Court, but equally he referred to himself as not being the correct person to represent himself. It is a well‑known saying in the law that a lawyer who acts for himself has a fool for a client. He was rightly concerned that because of obvious lack of objectivity he ought to be represented by an independent lawyer. I accept that he was effectively denied that because the learned Magistrate wanted the matter over and done with on 11 August 2023 and did not want to adjourn the matter, for example to allow further legal representation to be obtained or to allow a medical report to be obtained which might entitle the appellant to have the matter dealt with under s 14.

36. As to point 3 I cannot accept that that affected the outcome on 11 August 2023 because it is clear from the material before me that the witnesses that the appellant wanted, were to substantiate that he was not in an intimate or domestic relationship with Ms Beames, but rather they were merely flatmates, and therefore insofar as the informant was concerned there was no either direct or indirect domestic relationship between them.

37. It is true that the appellant suffered from a long and serious mental issue in the form of adult ADHD. The learned Magistrate should have been well aware of that from the email that the appellant had sent to the Court at 8.17am on 11 August 2023, part of Exhibit A.

34. In that email the appellant referred to himself as being a self‑represented litigant who had no capacity to work due to, "Complex PTSD, adult ADHD, and panic disorder". That is confirmed before me by the report of Dr Dennis Shum, consultant psychiatrist, of 27 August 2024, Exhibit C, in which the doctor diagnoses attention deficit hyperactivity disorder (ADHD) and post‑traumatic stress disorder (PTSD) and the need for the appellant to be medicated with Ritalin eight tablets per day and the need for ongoing treatment. A panic attack can sometimes be the result of PTSD.

35. The plaintiff referred to himself on a number of occasions as attempting to make an application for an adjournment under s 57. The Legal Aid Commission Act 1979 s 57 says this:

"Where it appears to a court or tribunal, on any information before it‑‑

(a) that a party to any proceedings before the court or tribunal--

(i) has appealed, in accordance with section 56, to a Legal Aid Review Panel and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Panel and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit."

40. The appellant was entitled to seek an adjournment to have his Legal Aid funding be restored. The Magistrate ought to have considered s 57 of the Legal Aid Commission Act 1979 but did not do so.

41. The ninth point made by Mr Warr in what I have just recently quoted was a complaint about the learned Magistrate appearing to, "Prejudge the evidence" when he remarked that, "On face value it seems like a pretty strong prosecution case." With great respect to Mr Warr, I believe that many magistrates and judges would from time to time make such an observation, albeit, as far as a judge is concerned, not in the presence of a jury.

42. When one reads, as I have, the fact sheet contained in Exhibit 1, the case for making threats to Shane Kelly appears to establish at least a prima facie case. For example, a voicemail message left by the appellant on Mr Kelly's mobile phone lasted one minute and 18 seconds. The fact sheet continues thus:

"During the voicemail the accused calls the victim 'a rapist cunt' over and over again and says, 'We're going out on a boat trip, right. It's a fucking four-day trip. You'll go on a half-day tour you motherfucker. You weak piece of shit cunt, yes pass this on to the police, put me in fucking court motherfucker and put me in gaol and put me in gaol because when I'm in gaol, I'll have other people fucking visiting you, you sick fucking rapist cunt, you gutless piece of shit you fucking cunt'. The accused then goes on to say he is only joking."

The fact sheet then contains an allegation that the complainant felt frightened by what had been said by the appellant.

43. The tenth point made by Mr Warr is that the comment made by Magistrate Barko of his alternatives under the Mental Health legislation may have been made in terrorem. It certainly might be so taken. It does not appear to me to have been necessary, but whether it was to induce the appellant not to make an application under the Mental Health Act or to have the matter dealt with on that day is not clear.

44. Clearly the eleventh point made by Mr Warr is correct. Magistrate Barko trying to make the appellant enter a plea before considering the Mental Health Act which would have negated the effect of entering the plea, and it is completely inappropriate considering the terms of s 14 for the Magistrate to have invited the appellant to plead guilty before he would consider that provision.

45. It is clear also that the appellant was given no opportunity after the Magistrate had been told that the matter was settled to again make an application for an adjournment to seek relief under the Mental Health legislation because the Magistrate did not point out that if s 14 were applied the charges were to be dismissed and not set aside if a conviction had already been recorded.

46. Here the advice given by the learned Magistrate was inappropriate and lead, in my view, to a miscarriage of justice. For those reasons I set aside the convictions recorded and sentence passed by Magistrate Barko sitting in the Downing Centre Local Court on 11 August 2023. The appellant now through his counsel does not seek to set aside the APVO made on 11 August 2023 and that will remain on the record.

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

47. I am satisfied on the evidence of Dr Dennis Shum recorded in Exhibit C that the appellant has made out grounds for his being dealt with under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. In dealing with that issue, I have to bear in mind the matters contained in s 15 of the Act. The first is the nature of the defendant's apparent mental health impairment. I accept that his mental health is impaired by both ADHD suffered as an adult and PTSD.

48. Whilst the threats left by the telephone message might be taken seriously, in all the circumstances of the case and bearing in mind what had passed in the background to the making of the threats, I accept that the circumstances of the alleged offending are not of any great seriousness. Clearly the appellant wanted a showdown with Mr Kelly so that he could prove that he had no unlawful connection with Mr Kelly's former wife either at the time that they were husband and wife or at any time since they become estranged.

Criminal History

49. The appellant's criminal history is before me. That indicates that on or about 18 July 1992 he pleaded guilty to mid-range PCA, for which he was fined $300 and disqualified from driving for three months. On 10 February 1997 the appellant was charged with three counts of assault, an account of malicious damage and a count of unlawful entry. On appeal to this Court sitting at Armidale the charges of assault were dismissed pursuant to s 556A of the Crimes Act 1900, the old equivalent of the modern s 10 of the Crimes (Sentencing Procedure) Act 1999. For malicious damage and unlawful entry, the appellant was fined by the Local Court.

50. On 19 December 2015, the appellant was charged with a number of offences at Coffs Harbour. The first was a common assault for which the Local Court imposed a term of imprisonment of one year suspended pursuant to s 12. On appeal to this Court sitting at Coffs Harbour that was reduced to a fine of $1,000. For intimidation the matter was dealt with under s 10A, as was an allegation of stealing from the person, as was resisting an officer in the execution of his duty and for contravening a prohibition or restriction in an ADVO, the appellant obtained a bond under s 9 to be of good behaviour for a period of two years and also was required to continue certain medical treatment.

51. On 10 October 2019, the appellant was dealt with for contravening a provision of an ADVO for which he was fined $500. On 5 January 2019, the appellant was dealt with at Gosford for stalking or intimidating with intention to cause fear of physical or mental harm. For that the Local Court at Gosford imposed a sentence of imprisonment for 12 months with a non‑parole period of seven months but on appeal to this Court the order was varied, and the Court merely recorded a conviction with no other penalty under s 10A. The inference to be drawn is that whatever the crime was, it was of little moment.

52. Bearing in mind that criminal history I do not believe that it prevents the appellant being dealt with under s 14. A further consideration is whether the defendant has previously been dealt with under s 14 or under s 32 of the former Mental Health Act, that of 1990, but as far as I am aware he has not been dealt with thus far under the Mental Health legislation.

Decision

53. Under s 15(g) I am to consider whether a treatment or support plan has been prepared and there is one before me in the report of Dr Shum. Paragraph (h) requires me to consider whether the defendant is likely to endanger the safety of himself or a victim or any other member of the public. It appears to me that the appellant's bark might be loud, but the bite is probably completely lacking. It is only a verbal "assault", not a physical assault. Therefore, I do not believe that he is likely to endanger the safety of anybody. I can think of no other relevant factors.

54. I therefore conclude that I should grant the appellant the other relief which he seeks. Pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 I dismiss the charges which were sequences 1, 2, 3 and 4 of charge number H91823012.

55. I place the appellant in the care of Dr Dennis Shum on condition that the appellant attend upon that doctor for regular review and counselling at approximately fortnightly intervals and to remain on the medication prescribed by Dr Shum for treatment of his condition.

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Decision last updated: 08 August 2025