R v Richards
[2014] SADC 43
•19 March 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2014] SADC 43
Judgment of His Honour Judge Slattery
19 March 2014
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The applicant sought to set aside guilty plea to aggravated communicating with a child for a prurient purpose on the grounds, inter alia, that he entered the plea due to the failure of his legal advisors to comprehend and advise upon the issue of his intention or lack thereof to procure a child to engage in sexual activity.
Held: Sufficient material demonstrating that the advice given to the applicant may not have been appropriate and prudent and that there is a real question about the guilt of the applicant of the offences charged, having regard to his intention. Application to withdraw plea granted.
R v Clayton (1984) 35 SASR 232 ; R v Roach (1990) 54 SASR 491; Meissner v R (1995) 184 CLR 132 ; Hinton v O’Dea (1977) 16 SASR 234 ; Maxwell v R (1996) 184 CLR 501 ; R v Hura (2001) 121 A Crim R 472 , applied.
R v Lance Robert Campbell [2012] SASCFC 44; R v Barrie [2012] SASCFC 124; R v Wilkes (2001) 122 A Crim R 310 , discussed.
R v RICHARDS
[2014] SADC 43Application to withdraw a guilty plea entered on 21 September 2013
This matter was heard before me on the morning of 28 February 2014. At that time, after hearing argument, I allowed the application of the accused. I then indicated that I would prepare and deliver written reasons. These are those reasons.
Barry James Richards, the accused in this matter is charged with the following offence:-
“Statement of Offence
Aggravated Communicating with a Child for Prurient Purpose. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Barry James Richards between the 18th day of June and the 21st day of July 2012 at Salisbury Heights, made a communication for a prurient purpose and with the intention of making TSB, a child of 11 years, amenable to sexual activity.
It is further alleged that Barry James Richards committed the offence knowing that TSB was under the age of 14 years.”
Mr Richards entered a guilty plea in this Court on 23 September 2013. On that day he was represented by solicitors and counsel.
By application dated 26 February 2014 Mr Richards sought the following order:-
1. Leave be granted to withdraw the plea of guilty entered to an offence under s63B of the Criminal Law Consolidation Act.
Section 63B(3) of the Criminal Law Consolidation Act (the Act) reads as follows:-
“63B—Procuring child to commit indecent act etc
(3) A person who—
(a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.”
A review of that provision discloses that it is necessary in the prosecution of an offence under this subsection for the prosecution to prove that the accused Mr Richards has made a communication with a child with the intention to procure the child to engage in sexual activity. There is no doubt that TSB is a child who was 11 years of age at the time of the offence and she is therefore under the prescribed age. There is also no doubt on the material before me that through the medium of Facebook, Mr Richards had a communication with the child. The question was whether there was through that communication or on any other basis any sufficient evidence to prove beyond reasonable doubt that the accused had an intention of procuring the child to engage in or to submit to a sexual activity.
Sexual activity is not defined in s62 of the Act. Here it is accepted that the accused made the suggestion over the Facebook exchanges that he should meet with the child for the purposes of a cuddle and kissing. It is also accepted that this activity constitutes a sexual activity.
In R v Barrie [2012] SASCFC 124, the Court of Criminal Appeal said that under s63B(3)(a) the offence was made out by proving a communication by the accused with the requisite intention. In the proof of the integers of the offence, it is essential for the prosecution to prove the intention of the accused to procure the child to engage in or submit to a sexual activity.
In support of the application, the accused swore and filed an affidavit dated 20 February 2014. The accused is now 47 years of age, he lives with his partner and five children. He informs the Court that he was involved in a motor vehicle accident in 2008 in which he suffered a broken pelvis and fractures in both legs as well as a head injury. As a result of these fractures, his range of movement is very limited. There has been further surgery as a result of the accident including gastro-intestinal surgery from which he continues to suffer difficulties.
The accused informed the Court of the manner in which he obtained a Facebook page; that he began communicating on the Facebook page with the complainant child who accepted him as a friend request on her Facebook page; and the communications on that page that occurred after that time. It was clear that the child at all material times was 11 years of age. She represented herself on the Facebook page as being 13 years old.
On the accused’s Facebook page, he said that he was 19 years of age. This information was contained in a profile on that Facebook page. In the course of the communications with the child, the accused continued to represent himself as being 19 years of age. He says that he did this in order to maintain the contact. Implicitly it is quite obvious that he knew that if he had disclosed his true age to the complainant child the Facebook conversation would have ended.
There are a number of conversations recorded between the accused and the child. I have seen them reproduced in the police files. In his affidavit the accused says that he assumed that the child was 17 years. He said that he mistakenly believed that a person had to be 17 years to open a Facebook account. There is no basis set out in the affidavit for this mistaken belief. He knew that the child went to Craigmore High School and for that purpose he assumed that she must have been 17 years of age or more. No basis is set out in the affidavit as to why that conclusion is made. He assumed that she would not be a child of 11, 12 or 13 years of age if she attended high school. Again the accused does not say why he made this assumption rather than the opposite conclusion: the child was generally accurately recounting her age.
The accused admitted using language that he thought was used by children in their exchanges over the Facebook pages. He admits that he suggested to the child that they meet for a kiss and cuddle. This is a sexual activity which is the bases of the charge under s63B(3)(a) of the Act.
In his affidavit, the accused says that in his view at the time, these conversations were light-hearted conversations with no real substance and he saw no harm in agreeing to a suggestion by the child that they meet at a Blue Light Disco or at a particular skate park. He says that he is unable to drive a car and it would not have been easy for him to have gone to the places suggested by the child. He also says that it would be fanciful for him to believe that a young person would be physically attracted to him. He would have had to disclose his full age which was not 19 years and he assumed that the child would have run away once she had seen him.
The accused also says in his affidavit that he never intended to meet the child face-to-face. He says that as a father he has nothing more than a paternal affection for children nor did he harbour any sexual feelings or thoughts in relation to the child.
In relation to the entry of the guilty plea, he said that on 23 September 2013 he entered a guilty plea to a charge under s63B(3)(a) of the Act as a result of advice given to him at that time by his counsel.
He says that he always maintained in the instructions that he gave to his legal advisers that he never intended to meet the child. He says that he told his counsel of that fact. After telling his counsel that fact, his counsel advised him that he had no defence and on the facts a jury would return a verdict of guilty. It appears from this account that counsel did not give consideration to the question of the proof of intention at that time. There is no affidavit from counsel but the prosecution raised no criticism in this regard. The accused was not cross examined on his affidavit.
In paragraph 8 of the affidavit aforesaid, the accused said the following:-
“[8] …my plea of guilty was entered solely because of that advice. As I had no intention to meet (the child) at all it follows that I had no intention to have any physical encounter with her. From the advice I have received from alternative legal counsel, I now regard the advice given to me by my former counsel to have been incorrect and imprudent and that my plea was not one attributable to a genuine consciousness of guilt.
[9] As a result of this I wish to set aside my plea of guilty to committing any offence under s63B(3)(a) of the Criminal Law Consolidation Act.”
It appears to be the case that no separate consideration was given to the integers of the offence charged at the time the advice was given and it may well be the case that counsel then considered the inference case to be sufficiently strong and he based his advice on that fact. But that is not an answer in these circumstances because the evidence is clear that in one way or another, the accused made it very plain to his legal advisors that he challenged the assertion that he had the requisite intention. In those circumstances the advice to the accused needed to be tempered with further advice about the right of the accused to put that issue to jury. On the evidence before me, this does not seem to have occurred.
In a later paragraph of the affidavit, the accused deposes to the fact that his alternative counsel, Ms Stokes, has given him advice that the conversations on Facebook with the child could be construed as a breach of s63 of the Act, namely the production or dissemination of child pornography. I am informed during argument that the Director does not accept this alternate plea.
Withdrawal of a guilty plea
The principles applicable to a decision in this matter are now well settled by a series of decisions of the High Court and of the Court of Criminal Appeal of South Australia. Those decisions are referred to in the decision of the Court of Criminal Appeal in R v Lance Robert Campbell [2012] SASCFC 44. The principles may be summarised as follows:-
1. An informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred;[1]
[1] R v Pugh (2005) 158 A Crim R 302.
2. The onus is on the defendant to establish that to hold a person to a plea of guilty would result in a miscarriage of justice;[2]
[2] R v Collis (1989) 43 A Crim R 371.
3. The Courts will always adopt a cautious approach to allow a change of plea recognising the public interest in the finality of proceedings and also recognising that a plea which is based on legal advice would ordinarily be regarded as an unequivocal and informed admission of the elements of the offence.[3] In this context, it is recognised that 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. That is because a person may plead guilty upon grounds that extend beyond the person’s belief in his guilt and those reasons may include the avoidance of worry, inconvenience, expense, the avoidance of publicity, the protection of family and friends or the hope of obtaining more lenient sentence;[4]
[3] R v Laiberti (1991) 55 A Crim R 120; R v Clayton (1984) 35 SASR 232 at 234; R v Roach (1990) 54 SASR 491 at 494.
[4] Meissner v R (1995) 184 CLR 132 per Dawson J at 157.
4. It will be necessary to establish to the satisfaction of the Court that the making of the plea has been induced by a material mistake and that, in effect, the material mistake constitutes a miscarriage of justice. Any guilty plea would normally bind an accused but that presumption rests upon what may be described as an informed and deliberate plea, not a plea based on an amorphous and uncritical understanding;[5]
[5] Hinton v O’Dea (1977) 16 SASR 234 at 235 per Jacobs J and R v Clayton (supra) at 234 per Wells J.
5. There is an assumption underlying the fact of the guilty plea that the plea of guilty is made by the person in possession of all relevant facts and therefore it is an admission by that person of the necessary legal ingredients of the offence;[6]
6. A plea of guilty may be made by an accused person as a matter of free choice and, where a plea has not been made in circumstances of a free choice the Court will be misled; the denial to the Court of the knowledge of the true circumstances of the plea means that there is a risk of adverse interference with the proper administration of criminal justice;[7]
7. On the question of consciousness of guilt, a plea of guilty must be unequivocal but not made in circumstances suggesting that it is not a true admission of guilt and those circumstances will include “ignorance, fear… or mistake…”;[8]
8. A new trial ought to be ordered where the accused enters a plea of guilty but was not at that time in possession of all relevant facts and did not entertain a genuine consciousness of guilt;[9] and
9. The question of the consideration of the Court on an application for withdrawal of the guilty plea “hinges” upon the following considerations:-[10]
· Whether the advice given to the appellant was or was not imprudent and inappropriate;
· Whether his plea was or was not attributable to a consciousness of guilt; and
· Whether the material before this Court shows that there is or is not a real question about his guilt.
[6] R v Liberti (supra) at 122 per Kirby P; R v O’Neill [1979] 2 NSWLR 582; R v Sagiv (1986) 22 A Crim R 73 at 81.
[7] Meissner v R (Supra) at page 143-144.
[8] Maxwell v R (1996) 184 CLR 501 at 511 per Dawson and McHugh JJ.
[9] R v Hura (2001) 121 A Crim R 472 at 478.
[10] R v Wilkes (2001) 122 A Crim R 310 at [20].
At the hearing of this application, the Director, represented by Ms Burrows, suggested that the Director did not have any submissions to make on the application. I did not accept that submission. I questioned Ms Burrows about the three matters that fell from Wood J in the Wilkes decision. Ms Burrows indicated that there was a real question as to whether the advice given to the accused was or was not imprudent and inappropriate. On the question of consciousness of guilt, Ms Burrows submitted that the question of consciousness of guilt was bound together with the question of intention as prescribed in s63B(3)(a) of the Act and in the absence of the intention, there was a question of the attribution of consciousness of guilt. Finally, Ms Burrows indicated that there was some information to suggest that there is a real question about guilt and therefore the question of the proper administration of justice including notions of fairness arise.
Ms Stokes relied upon the authorities as I have summarised them above. She emphasised that where there was no intention to have any physical encounter as set out by the accused in his affidavit, then the aspect of intention for the purposes of s63B(3)(a) could not be made out. She emphasised that from the outset, the accused had informed his legal advisors of the absence of any intention on his part to meet and that he was simply involved in “cyber chat”. Ms Stokes properly conceded that in the police interviews, there were inconsistent answers given by the accused on this question. Those inconsistent answers on the one hand suggested that he had no intention to meet the child but on closer questioning he did indicate that there may have been some attempt on his part to meet the child but with a clear acknowledgment that his presentation as a 43 year old man to a child of either 17 (or as was the case 11 years old) would result in the child leaving off the encounter. However, importantly here is the failure by the legal advisors to comprehend and advise upon the issue of intention according to what was being communicated to them by the accused. This was the defining feature of the case.
Decision
Although I have some misgivings in relation to the version of events put forward by the accused in his affidavit when compared with the depositions and the police interview, there is sufficient material before me to satisfy me that the advice given to the accused may not have been appropriate and prudent and that there is a real question about the guilt of the accused of the offences charged, having regard to his stated position in relation to his intention. In my opinion, this type of matter turns upon a decision by the jury as to whether it does or does or does not accept the evidence of proof led by the prosecution of the accused’s intention or whether it is or is not in a position to make a finding concerning the intention of the accused. It is not a question of whether or not, as a matter of fact, the jury accepts the version of events put forward by an accused. The burden of proof falls upon the prosecution. In those circumstances the aspect of intention becomes paramount in light of the other evidence that is available. It follows that where there is doubt about the appropriateness of the advice given to the accused about that essential matter then the benefit of that doubt should be given to the accused. In the view that I have formed there is sufficient to show that the accused was imprudently advised on this essential matter because the focus of the advice was too narrow. In light of the evidence, it is not possible to conclude that the plea was attributable to a consciousness of guilt because the accused says he always maintained that he did not have the requisite intention. There is sufficient material before the Court to suggest that there is a real question about the guilt of the accused and that will be a jury question.
It is necessary for the matter to proceed to a trial and for the evidence to be then properly ventilated in Court before a jury. The plea of guilty was entered solely based upon the advice that the accused received. There does not seem to have been any assessment by the advisor about the question of intention. There is sufficient evidence before me to suggest that the accused informed his advisor that he had no intention of meeting the child and therefore procuring the child to engage in or submit to a sexual activity of kissing and cuddling. I am satisfied that there is a risk of adverse interference with the course of criminal justice. In my opinion, the principles associated with the due administration of justice require that the accused be given leave to withdraw his plea of guilt and for the matter to proceed to trial before a jury.
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