R v S, RP - [2011] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, RP
[2011] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Kourakis)
10 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
Appeal against convictions after guilty plea - appellant contends that his trial counsel coerced him to plead - appellant applied to withdraw pleas - first application refused - second application determined without being heard in court - whether finding of Judge that pleas not entered under duress of trial counsel affected by error - whether District Court failed to exercise jurisdiction in refusing second application.
Held: appeal dismissed - Judge did not err in finding that appellant entered guilty plea voluntarily - District Court failed to exercise jurisdiction or failed to accord procedural fairness in dismissing second application - second application without substance and bound to fail - convictions founded on guilty pleas not a miscarriage of justice.
Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37, applied.
R v Hura (2001) 121 A Crim R 472, considered.

R v S, RP
[2011] SASCFC 42
Court of Criminal Appeal: Sulan, David and Kourakis JJ

SULAN J: I agree with Kourakis J. I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Kourakis J.
KOURAKIS J: This is an appeal against convictions which were made on the appellant’s pleas of guilty to two counts of unlawful sexual intercourse. The appellant contends that it would be a miscarriage of justice to allow the convictions to stand on two grounds. First, he contends that his trial counsel coerced him to plead guilty. A Judge of the District Court conducted a hearing on the appellant’s application to withdraw his pleas and was not persuaded that the appellant was pressured to plead guilty. Indeed, the Judge found that the appellant voluntarily confessed his wrong doing out of a consciousness of guilt. For the reasons I will shortly give the appellant has not shown that that conclusion is attended by error.
Second, the appellant contends that the District Court wrongly failed to exercise its jurisdiction to hear a second application to withdraw the guilty plea which was made after the dismissal of his first application. I accept that the District Court wrongly failed to exercise its jurisdiction, or, alternatively, failed to accord the appellant procedural fairness before dismissing the second application. The application was never called on in court or chambers because the Judge of the District Court who had heard the first application informed the Registrar that he declined to exercise his discretion to re-open the first application. Applications to withdraw a plea of guilty are interlocutory in nature and the dismissal of an application does not set the guilty plea in stone; absent any abuse of process subsequent applications must be heard and determined on their merits. However, the appellant’s subsequent application was without any substance and was bound to fail because the psychologist’s report on which it relied was inadmissible opinion evidence. Even if it were admissible its probative value was slight. The report does not show that there has been a miscarriage of justice. I expand my reasons for so concluding below.
No Duress
The appellant’s daughters were born on 31 July 2001 and 6 June 2003, shortly after he commenced a relationship with their mother Ms G. The prosecution alleged that in 2006 and 2007, in conversations with childcare workers, the children disclosed sexual assaults committed on them by the appellant. Those disclosures were communicated to Ms G in November 2007. Police commenced an investigation in January 2008. The children were interviewed in February and early March 2008. The appellant was arrested on 15 March 2008.
The prosecution case included letters written by the appellant to the children and their mother (the letters) in which the appellant appeared to confess his guilt. The letters were written by the appellant in May 2008 but sent shortly before the appellant’s arraignment in the District Court in August 2008. The trial was set down for 27 July 2009. An officer of the Director of Public Prosecutions had intimated before the trial date that only one of the children would be called.
The appellant was arraigned in the District Court on an information charging him that between August 2005 and March 2008 he had unlawful sexual intercourse with each of his daughters, who at the time were both under the age of twelve years. Shortly thereafter the information was set down for trial on 27 July 2009.
On the first day of the trial both the prosecuting counsel and the appellant’s counsel, K, joined in an application to stand the matter over to the following morning because of late disclosure of recently obtained evidential material by the office of the prosecutor. That material comprised: text messages sent by the appellant to the complainant’s mother, a statement from a relative of Ms G to whom the appellant had allegedly admitted a sexual assault on one of the children, and further statements of one of the children made in the course of preparing for the trial. The prosecutor also informed K that she intended to lay a further count for an additional offence.
The trial judge adjourned the trial to 10.00am the following morning. However, the matter was called back on at 11.30am on the same day when K informed the trial judge that the appellant would plead guilty. The appellant was again arraigned and he pleaded guilty to both counts. The allocutus was read. The appellant’s counsel informed the Court that a psychological report on the appellant would be obtained. The matter was then adjourned to 15 September at 9.30am for submissions.
On 4 September 2009 the matter was called on at the request of the appellant. The appellant’s solicitor, W, appeared and informed the court that he and K could no longer act. W sought, and was granted, permission to withdraw. The date for submissions was vacated. The appellant informed the Court that he had instructed another solicitor and that “[w]ith total respect and humility, [he would] like to ask for a trial by judges”. When the trial judge explained to the appellant that he would have to make an application to change his plea and, that it would most likely be opposed by the prosecution the appellant replied:
With due respect and humility yet again, I was given six minutes to make a decision without being able to make a phone call to anyone.
The appellant was, however, complementary of W praising him as “exceptional”. The matter was adjourned to 15 September at 9.30am for mention and directions only.
On 6 July 2010 the appellant filed an application to withdraw his pleas supported by an affidavit sworn on 25 June 2010. The application was heard on 6 August 2010. The appellant, K, and W gave evidence.
The appellant accepted that he wrote the letters to the children and their mother. The letters were received as exhibits A1, A2 and R4. R4 was an expansive letter to Ms G attempting to explain events which had led to the commission of what was described as “the event”. R4 enclosed the documents A1 and A2 referring to them as “something that may help the children in their recovery” and an “apology letter” respectively. A2 was a letter of apology to Ms G. A1 was in the form of a series of questions obtained by the appellant from a website, apparently designed to help victims of sexual abuse, and answers given to those questions by the appellant. The appellant testified that he felt under pressure when he wrote the letters because he was involved in litigation over his mother’s estate. He also testified that he wrote the letters “to protect [his] family” and because he “didn’t want them to go through this process”.
In the “recovery” document (A1) which was addressed to the children, the appellant claimed to be writing to “help you with recovering from my stupidity”. He also wrote “I am really sorry for what I have done” and, “I never will [do those things to you again]”. He offered as the reason for his conduct that he “went a little crazy”. The appellant promised “I never will [hurt you again]”. He later explained that he knew how the children felt because “[i]t happened to [him] a long time ago and it really hurt [him] and upset [him] so very much.”
In the letter of apology to Ms G (A2) the appellant admitted “[t]he behaviour the children experienced by me is not acceptable or excusable behaviour”. Directing himself to the children he wrote “I know that Mummy and the both of you will get through this for what I have done to hurt you. … I have gone to get help knowing that I will never do this to anyone else.”
In the letter (R4) the appellant undertook “[not to] deny [his] actions” and continued:
I hated living a double life it should never have happened. … At this age there is a chance that they will forget the event if it neither is nor relived again and again.
The letter goes on to describe attempts by the appellant to warn the children about the danger of abuse by adults. However, the appellant wrote that he warned the children in order to “fix the screw up [he] had done” and that he had always known that “[his] one stupid act would come [sic] eventually come out”.
In his evidence in chief the appellant agreed that the letters “appear to be something of a confession”. He explained that they were written during the committal proceedings in the hope that the children would be spared the experience of the criminal proceedings. The appellant was then asked whether he changed his mind about that. The appellant replied: “yes, I did”.
In cross examination the appellant claimed that the letters were intended to prevent psychological damage to the children and to maintain their future relationship by obviating the need for them to “relive events which had never occurred again and again”. He explained that by writing the letter he hoped to avoid a trial. His evidence continued:
Q.     So you mean that you wrote that letter to avoid the trial later on.
A.    That is correct.
Q.    Because you knew it would be taken as an admission to the crime.
A.    I believed it could be interpreted as that I had disclosed some information.
Q.    Were you intending to plead guilty at the time you wrote that letter.
A.    No.
Q.    So you were going to write the letter and then still go to trial and plead not guilty.
A.That is correct, if I had to, I wanted the truth to be told in its entirety, not the lies I have seen so far.
It is hardly surprising that the Judge had difficulty understanding the effect of that evidence. The Judge asked the appellant whether the contents of the letter were a lie. The appellant answered no. The Judge asked whether therefore the contents of the letter were the truth. The appellant answered “yes … I was trying to protect my family” and he continued:
I wrote the letter when I was under duress and stress and I was also going through another trial in the Supreme Court, my mum’s estate, at the time.
When asked again whether the contents were true he answered “I wrote a letter based on protecting my family”. When the Judge pointed out that that answer did not address the question the appellant replied:
The letter is not in relation to the charges, your Honour, therefore it would be no.
The appellant then claimed that the letter related to “conversations [he] had with [his] children about appropriate and inappropriate behaviour”.
The appellant testified that he was introduced to K in May 2009 and found him intimidatory, confrontational and very aggressive. According to the appellant, at a conference held shortly before the trial date, K told him, in an over bearing manner, that he would, on the strength of the letters and other evidence, inevitably be found guilty. The appellant further alleged that K threatened that the likely penalty, if he were found guilty after a trial, was 11 years, but that on a guilty plea the penalty would be three years. The appellant testified that a friend and psychologist, D, was also present for part of that conference.
The appellant testified that he had a further conference with his counsel shortly after the adjournment on the first day of trial. According to the appellant, K informed him that the prosecution were considering charging a further offence. The appellant gave evidence that K:
… told me that I can have three years or 11 years, he could see the writing on the wall, and that I had better take a plea now. I wasn’t allowed to make a phone call, I was given about six minutes, I had to make a decision now.
He continued that he was “told that [he] would be charged with a further charge and that [he] could have basically a lot more time, sentenced time”. The appellant testified that the conference took about eight minutes and that a letter of instruction for him to sign was already drafted on the computer.
The appellant agreed that he had coffee with W immediately after entering his guilty plea. In evidence in chief all he said of that conversation was that W had described him as a brave man for pleading guilty. The appellant claimed that he told W, on the following day that he did not want to continue with the plea. In cross examination the appellant testified that he told W when having coffee, that he did not wish to continue with his plea of guilty and claimed that he had repeated that view on the following days. The appellant insisted that he had told W that he wished to change his plea before 25 August and that he had pleaded guilty against his will.
The appellant did not call D on the application.
Affidavits sworn by K and W and were received in evidence. K deposed that he conferred with the appellant on 26 June 2009. W and a psychologist, D, who had been introduced as a friend of the appellant, was also present. A further conference was held with the appellant and W on 9 July 2009. K deposed that after the trial was adjourned he the appellant, and W went to his chambers. K and W discussed the morning’s events with the appellant in the chamber’s conference room. K informed the appellant of the prosecutor’s intention to lay a further charge if the trial proceeded, but not if the appellant pleaded guilty to the existing counts. In the course of that discussion the appellant instructed K and W that he would plead guilty to the existing charges. K deposed that he advised the appellant to think carefully about the change of instruction and then left him in the conference room with W.
K deposed that he retired to his room where he typed a letter of instruction which set out the advice he had given about the letters sent to the victims and their mother and about the prosecutor’s intention to lay a further charge. The letter advised the appellant that if he were to plead guilty he would receive a sentence of imprisonment but that the sentence may be less than it would otherwise be, even if he were to enter a plea of guilty at that late stage. The letter of instruction concluded as follows:
I instruct my legal representatives that I do wish/do not wish to plead guilty to two Counts of Unlawful Sexual Intercourse on a Person under 12.
I have been advised that if I enter pleas of guilty, all elements of the charges will be made out without the necessity of the Prosecution calling any evidence.
I make this decision of my own free will.
The letter of instruction was received into evidence. The words “do not wish” are struck out in pen and initialled by the appellant. The words “I do wish” are circled. The letter is signed by the appellant.
K denied that he made the particular threats and comments alleged by the appellant. W, in his affidavit, also denied those allegations.
W deposed that he and the appellant conferred with K and D on 26 June 2009. There was a further conference with K on 9 July 2009. W deposed that on the day of trial, when the appellant signed the instructions that he would plead guilty; he did not appear to be under duress and that he appeared to sign it “of his own free will”.
W also deposed that he had coffee with the appellant shortly after the plea of guilty was entered. W deposed that the appellant did not complain to him that he had been coerced when they had coffee on that day. Nor did the appellant complain in the following weeks when he had discussed obtaining a report from a psychologist for the purpose of sentencing submissions. According to W the appellant first complained in a telephone conversation on 25 August 2009.
When called to give evidence, K testified that he had asked D to leave the meeting of 26 June because D was argumentative over the question of the legal admissibility of the expert evidence he had suggested should be obtained. K also gave evidence that he had asked the appellant to provide written instructions, paragraph by paragraph, on the contents of the letters he had sent.
The Judge found that during the conference on 26 June K was firm and that he had sought precise instructions on the letters A1, A2 and R4. The Judge found that the appellant was pressed for meaningful responses and that he failed to give any. However, the Judge was not persuaded that K had acted in an aggressive, bullying or intimidating manner. The Judge found that K did not return to or press the issues arising out of the correspondence in the conference held after the adjournment on the day of the trial. The Judge found that the appellant volunteered that he would plead guilty early on in that conference. The Judge was not satisfied that any undue pressure had been placed on the appellant.
The Judge went further and found that the appellant had pleaded guilty to both counts freely, voluntarily and out of a consciousness of guilt. The Judge found that the appellant did not indicate any desire to reverse his guilty plea until 25 August.
The ultimate findings of fact made by the Judge were plainly open on the evidence. Nonetheless, the appellant complains that the Judge wrongly found certain intermediate facts and that those errors vitiate his ultimate conclusions. I would reject each of those complaints for the following reasons.
The appellant contends that the Judge wrongly took an adverse view of his credit because of the evidence he gave about the psychologist D. The appellant testified that he asked D to attend the conference held on 26 June for support in dealing with K’s aggressive and bullying demeanour. K and W testified that D attended at their request because they wanted D to explain a suggestion, repeatedly made by D to W, that the appellant engage an expert from Sydney to undertake “textual analysis” of the childrens’ statements. Apparently D thought that such an expert report might establish that the children’s evidence was not reliable.
The Judge accepted the evidence of K and W despite the uncertainty as to precisely which one of them had initiated that request. He was entitled to do so and ground 1(b) must therefore, be dismissed.
Ultimately the appellant conceded in his evidence that prior to the conference attended by D on 26 June he had not experienced any bullying behaviour. He must therefore have been mistaken about the reason for asking D to attend.

The appellant contends, in ground 1(a), that the change in the appellant’s testimony may have been the result of innocent confusion over dates. It was open to the Judge to find otherwise. Indeed, the appellant’s initial position was that in the first conference K’s behaviour was not objectionable. It was also his evidence that the conference with D was the second of the conferences he had with K and W. That was also the evidence of K and W. The precise dates of the conferences do not matter. It is the sequence of the conferences which falsifies the appellant’s testimony about the reason he wanted D at the conference. This Court should not interfere with a factual finding so obviously open on the evidence and dependent on the assessment of the appellant’s oral testimony. Ground 1(a) too must therefore fail.
The appellant also complains, in grounds 1(c) and (d), that an observation made by the Judge in [12] of his reasons, that some time after the appellant had written the letters he “changed his mind and decided that he was going to maintain his pleas of not guilty”, discloses a misunderstanding of the evidence.
In my view the letters strongly support the conclusion that the appellant was confessing the charged offences. Indeed, as I earlier observed, the appellant himself testified that the letters had the appearance of a confession, and were intended to spare the children the rigours of a criminal hearing but that he had changed his mind. The appellant’s testimonial insistence that he always intended to plead not guilty is difficult to reconcile with that evidence. The Judge’s observation is, in my view, a fair summary of the appellant’s contradictory evidence on that topic.
The appellant abandoned grounds 1(e) to (j).
Finally, the appellant complains, in ground 2, that there was insufficient evidence to support the Judge’s ultimate finding that the plea was voluntarily made. In my view, the finding of the Judge was not only open but strongly supported by objective evidence.
First, it must have been obvious to the appellant at all times that the natural meaning of his letters to the children and their mother, in the context of the allegations which had been made, were a confession of the offences alleged. It is fanciful to suggest that the statements which I have isolated from the letters refer only to conversations with the children in which the appellant warned them about the danger of abuse by adults. In particular, the reference to the appellant having himself suffered similar harm is inexplicable on that basis.
The strength of the confessional material, and the desire expressed in the letters to save the children from the emotional trauma of giving evidence is a strong objective circumstance from which it can be inferred that the appellant made his solemn forensic confession out of a consciousness of guilt. The appellant himself testified that concern for the children played a part in his change of plea.
The appellant also contends under this ground that the conviction should be set aside because his plea was influenced by knowledge of the prosecutor’s intention to lay a further charge. However, no discrete complaint about that issue was made by the appellant in his testimony. According to the appellant it was the overbearing nature of K’s advice which led to the plea.
The evidence having failed to establish that the appellant’s legal advisers had pressured him to plead guilty the Judge’s finding was inevitable. In any event, it was strictly unnecessary to make a positive finding to that affect. It was for the appellant to establish a reason, in the interests of justice, why the conviction based on his own plea should be set aside.[1] The appellant failed to discharge that onus.
[1] R v Hura (2001) 121 A Crim R 472.
The Second Application
After the Judge delivered his ruling the appellant filed, on 14 December 2010, another application to withdraw his guilty plea. It was entitled: “Addendum Application to Withdraw Guilty Plea”. By the application the applicant sought to “withdraw” his guilty plea and “to have the application re-opened before the Judge seized of the original application.” The application was supported by a psychologist’s report prepared by D. The report set out some matters of history and the results of certain psychological tests administered by D. D opined that the appellant suffered a major depressive disorder which resulted in a suicide attempt on 22 September 2008. The psychometric testing revealed elevated scores for anxiety related disorders, with obsessive compulsive behaviours, and traumatic stress. There was an elevated score for mania-grandiosity. D diagnosed post traumatic stress disorder and obsessive compulsive disorder. He also diagnosed a personality disorder in the nature of mania-grandiosity. D concluded:
Given the severity of his childhood trauma and his response to it I am of the opinion that [R] has suffered from Post-Traumatic Stress Disorder and still continues to do so. In my opinion [R’s] history of extensive childhood trauma at the hands of his mother and others would predispose him to act impulsively and irrationally in response to perceived threats. This could lead to his inappropriate action to train his daughters to avoid paedophiles using role play which was an impulsive, irrational expression of over-arousal and hyper-vigilance. His Obsessive Compulsive Disorder has been displayed in his intense focus on his strongly held ideas about children and bathroom and bedroom etiquette. Due to his grandiose manic personality disorder he did not consider that these actions were inappropriate given their young age until later. His subsequent letters of apology to them and their mother can be considered as a posttraumatic stress victim’s tendency to apologise to perceived assailants and an acknowledgement of inappropriateness due to his grandiose manic personality disorder.
The second application was never called on in court. It was apparently disposed by of way of a hand written note made by the Judge on a memorandum sent to him by the Criminal Appeals Co-ordinator. The Judge wrote that he was not “prepared to entertain any application to reopen the change of plea application”.
Notwithstanding the form in which the application was drawn, it was in substance an application to withdraw the guilty pleas. An application to withdraw a guilty plea is interlocutory in nature.[2] The earlier decision of the Judge not to allow the plea to be withdrawn was not a final order and did not preclude the hearing of a further application. This was not a matter that was governed by the discretion to allow a hearing to be reopened or to vacate a ruling earlier made. The appellant was entitled as of right to have the second application heard, and determined, unless it was an abuse of process. Moreover, the appellant was entitled to procedural fairness on the hearing of the application, both as to its merits and on any preliminary issue, like abuse of process. Procedural fairness was not accorded by disposing of the matter in chambers without hearing submissions.
[2] Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37.
However, the ultimate question is whether the convictions founded on the appellant’s pleas of guilty are a miscarriage of justice. In my view, having heard the appellant’s counsel on the significance of D’s report, there is no reason to apprehend any miscarriage of justice. D’s report is inadmissible, and poorly reasoned opinion evidence about the ultimate guilt of the appellant based on a psychological assessment of the appellant. It is based on speculation about just what the appellant’s conduct was. The appellant has given no evidence or statement about engaging in “role play”. We are left to speculate about what the role play might have involved. For all anyone knows it might have included offending. The report raises no doubt on the issue of the appellant’s ultimate guilt.
Insofar as D’s report opines that the letters were admissions and were made as apologies to perceived assailants, that was not the appellant’s evidence. The reasons for writing the letters and their weights as admissions is ultimately for the jury and D’s opinion as to how they might be “considered” is irrelevant. Moreover, the diagnosis of grandiose manic disorder casts some doubt on the appellants claim to have been coerced.
Even if D’s opinions on the nature of the admissions and on guilt of the offences themselves were admissible, the evidence of D carries little weight. The evidence of his advocacy of the appellant’s cause, which advocacy is apparent in the report itself, disqualifies D’s opinions from serious consideration. The second application was bound to fail.
Conclusion
There has been no miscarriage of justice. I would dismiss the appeal.