R v Scuteri - [2017] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SCUTERI
[2017] SADC 126
Decision of His Honour Judge Chivell
17 November 2017
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Application to withdraw two pleas of guilty.
Applicant pleaded guilty on morning of trial to one count of trafficking in a controlled drug and one count of manufacturing a controlled drug for sale. Applicant asserted that he misunderstood nature of his pleas.
Held: Advice given and procedure adopted by trial counsel was appropriate in the circumstances. Not established that applicant misunderstood nature of his pleas. Application dismissed.
Controlled Substances Act 1984 (SA) s 4, s 32(5); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1; R v Liberti (1991) 55 A Crim R 120; R v Clayton (1984) 35 SASR 232; R v Brooks (2007) 96 SASR 478; R v Pugh (2005) 158 A Crim R 302; R v Forde [1923] 2 KB 400; R v Brooks and Childs (2006) 95 SASR 369; Meissner v The Queen (1995) 184 CLR 132; Wilkes (2001) 122 A Crim R 310, referred to.

R v SCUTERI
[2017] SADC 126
The factual background

Stefan Scuteri (‘the applicant’) applies to withdraw guilty pleas entered before me on 14 February 2017, the date on which he appeared for trial on one count of trafficking in a controlled drug and one count of manufacturing a controlled drug for sale. The information reads as follows:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act 1984).
Particulars of Offence
Bruno Scuteri and Stefan Scuteri on the 30^th day of May 2013 at Ferryden Park, knowingly trafficked in a controlled drug, namely methylamphetamine.
Second Count
Statement of Offence
Manufacture a Controlled Drug for Sale. (Section 33(3) of the Controlled Substances Act 1984).
Particulars of Offence
Bruno Scuteri, Stefan Scuteri and Rosanna Leuzzi on the 2^nd day of July 2013 at Ferryden Park, knowingly manufactured a controlled drug, namely methylamphetamine with the intention of selling it.
The trial commenced, without a jury, at 10 a.m. At that time, Mr Barklay, counsel for Bruno Scuteri (the applicant’s brother), indicated that his client would plead guilty to the alternative charge of manufacture a controlled drug.
Each of the three accused was then arraigned. The applicant and Bruno Scuteri both pleaded not guilty to count 1. The applicant additionally pleaded not guilty to count 2. Rosanna Leuzzi, who was not charged on count 1, pleaded guilty to manufacture a controlled drug. Bruno Scuteri was not arraigned on count 2.
Mr Steven Apps, counsel for the applicant, requested some time to speak with the applicant and his father, referring to ‘certain other discussions that are occurring’.[1]
[1] Transcript 14 February 2017, p 2.
The trial resumed after lunch, at which time I was informed that the Director would accept pleas, by Bruno Scuteri and Leuzzi, to manufacture a controlled drug in satisfaction of the information as it pertained to the respective accused. The Director’s acceptance of those pleas was conditional upon the applicant pleading guilty as charged.
Those pleas were taken and the allocutus was administered to the applicant and Bruno Scuteri. Each accused was remanded for submissions before me on 4 April 2017.
After several adjournments, the matter came on before me on 22 May 2017 for sentencing submissions. At the outset, Mr Twiggs, who then appeared for the applicant, informed the court of a ‘difference’ in his instructions. He said:
I’ve just discovered something, your Honour would have noted Mr Apps was counsel for Mr Scuteri. I was ready to give submissions, but there is a difference in what Mr Apps has told me and I only discovered it 30 seconds ago, in relation to the charges. It involves the manufacturing charge. My belief - obviously wrong - was that it was a manufacturing for own use. I have got instructions from Mr Scuteri in relation to that, but my understanding is he pled guilty to manufacturing for sale and I haven’t got any instructions on that point. I can’t say any more. That’s my mistake. It’s an honest one because I was just talking to Mr Martin.[2]
[2] Transcript 22 May 2017, p 3.
With the consent of all counsel, I proceeded to hear submissions on behalf of Bruno Scuteri and Ms Leuzzi. Submissions for the applicant were adjourned to 7 June 2017.
On that date, Mr Twiggs applied for, and was granted, permission to withdraw from the file on the basis that he had received instructions from the applicant that he was not guilty of the charges. The matter was adjourned for a directions hearing on 26 June 2017.
On that date, the applicant appeared represented by Mr Marshall, who confirmed that there would be an application to withdraw the applicant’s pleas to both counts.
I ultimately heard submissions on the application on 26 October 2017.
The legal background
A plea of guilty ought, in the normal course, be treated as final. This is for two reasons: first, there is a clear public interest in maintaining the finality of legal proceedings and, secondly, a plea of guilty is taken to be a public admission of the essential elements of the offence.[3]
[3] R v Liberti (1991) 55 A Crim R 120.
Nonetheless, there remains a discretion for a judge to allow an accused person to withdraw a plea of guilty where he or she can demonstrate that allowing the plea to stand would result in a miscarriage of justice.[4] As the decision is a discretionary one, there are no firm rules as to when it will be appropriate to allow an application. As Wells J observed in Clayton, the discretion is not to be exercised ‘by the examination of lines of authority and the drawing of subtle distinctions. It is to be decided according to common sense, standards of fairness, and sound practice.’[5]
[4] See, e.g., R v Clayton (1984) 35 SASR 232; R v Brooks (2007) 96 SASR 478; R v Pugh (2005) 158 A Crim R 302.
[5] Ibid at 233.
Similarly, Doyle CJ emphasised in Pugh and Brooks that the ‘formalistic approach’ expounded in R v Forde,[6] which sought to narrowly circumscribe the circumstances in which a plea may be withdrawn, should be eschewed in favour of an examination of whether there has been a miscarriage of justice.[7] Although the Chief Justice’s remarks were made in the context of a consideration of an appeal, there is authority to the effect that first instance judges ought adopt the same approach.[8]
[6] [1923] 2 KB 400.
[7] Pugh at [33]-[41]; Brooks (Debelle and White JJ agreeing).
[8] R v Brooks and Childs (2006) 95 SASR 369, [41] and upheld on appeal: R v Brooks (2007) 96 SASR 478.
As Doyle CJ held in Pugh, the question whether a plea of guilty evinces a consciousness of guilt is not determinative of an application to withdraw a plea, although it is, of course, a relevant factor in the exercise of the discretion.[9] That is, a plea may be allowed to stand even where the making of the plea is not motivated by a consciousness of guilt. As Dawson J observed in Meissner v The Queen, there are myriad reasons why someone might plead guilty, even where the plea is not motivated by a consciousness of guilt:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.[10]
(My emphasis)
[9] Pugh at [40].
[10] (1995) 184 CLR 132 at 157 (Dawson J).
It is also apparent that mere persuasion, argument or advice to plead guilty is not sufficient to establish that a miscarriage of justice has occurred. Indeed, it is perfectly common and appropriate that counsel, and especially experienced counsel, will give robust advice to clients about their chances of success at trial, the benefits of a guilty plea (even one entered at a late stage) and so forth. As Brennan, Toohey and McHugh JJ observed in Meissner:
Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.[11]
[11] At 143.
The relevant factors
Mr Algie SC, counsel for the applicant, referred to the following factors which he argued, taken together, were sufficient to justify an exercise of the discretion:
1.That the applicant maintained pleas of not guilty until the day of trial;
2.That the prosecution case was weak;
3.That the applicant did not intend to plead guilty to the offences as charged;
4.That something must have ‘gone wrong’ in the meetings with Mr Apps for the applicant to change his pleas.
The applicant maintained his pleas of not guilty
This factor can be dealt with shortly. It is not uncommon for a plea of guilty to be taken on the day of trial. Few accused persons plead guilty at the very first available opportunity. The fact that the applicant maintained his innocence until the trial was due to commence in no way suggests that a miscarriage of justice would result from allowing his pleas to stand.
The supposed weakness of the prosecution case
Before analysing the submissions of counsel, I will briefly outline the prosecution case.
Count 1
As to count 1, the prosecution alleged that on 30 May 2013 the applicant possessed 2.87 grams of methylamphetamine, intending to sell at least some of it.
This charge arises out of a police search of a silver Holden the applicant was driving. During that search, police located a black laptop bag containing the subject methylamphetamine, together with associated paraphernalia including a set of electronic scales. Police had earlier observed the applicant putting a similar black bag into the boot of that car.
A subsequent search of the house at 2 Sassafras Drive, Highbury, where the prosecution alleged the applicant was living, revealed further drug paraphernalia including a number of small press-seal plastic bags.
The applicant said to police that he did not know the bag was in the car, and that he did not know there was methylamphetamine in the car.
The applicant now admits possession of the methylamphetamine in the laptop bag.[12] The only question for a potential trial, therefore, is whether, with the aid of the statutory presumption, the prosecution could establish an intention to sell some of the methylamphetamine.
Count 2
[12] Affidavit of Stefan Scuteri, [27]-[28].
As to count 2, the prosecution alleged that the applicant took part in the process of manufacturing methylamphetamine, by providing hypophosphorous acid, a precursor chemical, for use in the manufacturing process. The prosecution further alleged that it was intended that the applicant would receive some of the product, some of which he would sell.
On 2 July 2013, the applicant was stopped while driving a white Fiat at the intersection of Loddon Street and Kinross Street, in Ferryden Park. The prosecution alleged that the applicant was turning the Fiat onto Loddon Street at the time it was stopped.
The Fiat was searched. In the passenger foot well, police found a bottle marked as containing ‘Dettol’ hand sanitiser but which actually contained 15 ml of hypophosphorous acid.
Police later searched the house at 10 Loddon Street, Ferryden Park. Emmanuel Tiburzi (a co-accused) and Leuzzi were in the house at the time. In the garage, police found equipment consistent with a clandestine laboratory used for the production of methylamphetamine, as well as a number of precursors, including hypophosphorous acid. The material and equipment found at the Ferryden Park house, together with the hypophosphorous acid found in the Fiat, were sufficient to manufacture approximately four grams of methylamphetamine.
A DNA profile was taken from a glove found in the garage. It was analysed and found to support the hypothesis that the applicant was a contributor, with a statistical weighting of 890 in favour (considered ‘strong support’). Tiburzi and Leuzzi were also found to be contributors, with statistical weightings in favour of 17 billion and 1800 respectively (considered ‘extremely strong’ and ‘very strong’ support, respectively).[13] This is consistent with the prosecution case that Tiburzi and Leuzzi were the primary ‘cooks’ of the operation.
[13] Declaration of Sandra Lee Goldup dated 10 February 2014.
I turn now to the applicant’s submission. It is clear that Mr Apps was of the view that it was a strong case. He said in his affidavit:
As best as I remember, I had at all relevant times informed Scuteri that I thought that the prosecution case was potentially quite strong … there were several aspects about the proposed evidence that caused me disquiet.[14]
[14] Affidavit of Steven Apps sworn 19.10.17, [16].
This is supported to some extent by the instructions annexed to the applicant’s affidavit. There, the applicant acknowledged:
I have asked Mr Apps of his assessment of the case against me.
He has told me that the prosecution case against me is very strong and that I run a very real risk of being convicted on all counts.
He said that although that advice seems severe, he is obliged to express his true opinion.[15]
[15] Affidavit of Stefan Scuteri sworn 9.8.17, Exhibit SS-2, p 2.
However, the applicant said in his affidavit that he had been led to believe that the case against him was weak. This appears to have been based on a preliminary view expressed by the applicant’s previous counsel, prior to the making of a no case to answer submission in the Magistrates Court (which submission was rejected).[16] There is no suggestion in any of the material before me that Mr Apps told the applicant he believed the case was weak.
[16] Affidavit of Stefan Scuteri, [49].
I accept Mr Apps’ evidence that he had, prior to 13 February 2017, warned the applicant about the strength of the prosecution case. Consequently, I reject the applicant’s evidence that Mr Apps had told him that the prosecution case was weak.
Of particular importance in this case was the potential for cross-examination of the applicant by counsel for Bruno Scuteri as to the applicant’s prior convictions for similar drug offending. Such cross-examination was foreshadowed by Mr Barklay at least as early as 13 February 2017, and was clearly at the forefront of Mr Apps’ mind when he met with the applicant on that date. So much is apparent from Mr Apps’ affidavit:
I told [the applicant] that Mr Heath Barklay, counsel for Bruno [Scuteri], had informed me that if during the course of his evidence Scuteri alleged that Bruno had given him the black bag to put in the car on 30 May, he, Mr Barklay, would wish to cross-examine Scuteri about his prior convictions for drug offences …
I said that if Scuteri were cross-examined about his prior convictions, a jury may take a dim view of him, notwithstanding any direction that a Trial Judge may give them on that subject. Scuteri acknowledged this.
On 14 February 2017, on the morning of trial, I again asked Scuteri whether he wished to proceed to trial … it was now certain, if indeed it had not been before, that the prosecution would proceed to trial if Scuteri did not plead guilty as charged, in which case it was possible that he would be cross-examined about his prior convictions during the course of evidence. I think that I reminded Scuteri of these issues at the time, because it was a matter of particular concern to me.[17]
(My emphasis)
[17] Affidavit of Steven Apps, [17]-[19].
The applicant acknowledged this in his instructions to Mr Apps on the same date:
Mr Apps said that apart from the evidence that the DPP will lead against me at trial, there is a risk that the case against me could be made even worse.
Mr Barklay told Mr Apps that, if, for example, I were to say in evidence that on the 30^th May Bruno gave me the black bag to put in the car, he, Mr Barklay, would apply to cross examine me about my prior convictions relating to drugs.
I can readily understand that if that were to happen my position would be made even worse.[18]
[18] Affidavit of Stefan Scuteri, Exhibit SS-2, p 2.
It appears from Mr Apps’ affidavit that he first raised with the applicant the prospect of such cross-examination on 13 February 2017.[19] It was likely one of the most significant factors behind Mr Apps’ assessment of the prosecution case as ‘strong’, and it may have been one of the primary motivations for the change in Mr Apps’ assessment of the applicant’s chances of success at trial, to the extent that such a change occurred.
[19] Affidavit of Steven Apps, [17].
Of course, the applicant would only be cross-examined in the event that he elected to give evidence. However, it was likely that he would have done so, given that the quantity of methylamphetamine was a trafficable quantity,[20] and therefore that the presumption of commerciality applied.[21] Had the applicant elected to not give evidence, he would have had real difficulty rebutting the presumption.
[20] Controlled Substances Act 1984 (SA) s 4 (definition of ‘trafficable quantity’); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1.
[21] Controlled Substances Act 1984 (SA) s 32(5).
Furthermore, had the applicant elected to give evidence, he would likely have been cross-examined by the prosecutor as to the statements he made to police on 30 May 2013. It is likely that this would have further impaired his credibility, especially in light of his previous convictions. It would therefore have been difficult for him to rebut the presumption.
The prosecution case was a strong circumstantial case. The applicant’s position was made worse by the likelihood of cross-examination about his prior convictions. It follows that Mr Apps’ advice as to the strength of the prosecution case was not wrong or imprudent.
Whether the applicant intended to plead guilty as charged
Much was made in submissions for the applicant about his evidence that he did not know that he would be pleading guilty to the offences as charged. The applicant said he thought he would plead guilty to possession of a controlled drug, a lesser alternative offence, on the basis that the laptop bag (and, by extension, the drugs contained within it) were his, but that they were for his own personal use. In his affidavit, the applicant stated:
When I told [Mr Apps] I wanted to plead Guilty I did not realise the basis of the two (2) different charges in the case. When I told Mr Apps I was guilty I was under the impression that I was pleading guilty to the possession of methamphetamine on 30 March 2013. I did not realise that I was pleading guilty to trafficking methamphetamine. I thought that I was pleading guilty to possessing methamphetamine for my own personal use.[22]
[22] Affidavit of Stefan Scuteri, [70].

It is significant that, at all times, the applicant instructed Mr Apps that the laptop bag and its contents belonged to Bruno Scuteri.[23] At no stage did the applicant tell Mr Apps that the bag was his, or that the drugs were his.[24] In fact, he denied any and all involvement with the drugs (although that was, he conceded, a lie).[25] There was, therefore, no basis upon which the applicant could have pleaded guilty to the lesser offence of possession of a controlled drug.
[23] Affidavit of Stefan Scuteri, [57]. See also Exhibit SS-1 to the same, p 13.
[24] Affidavit of Steven Apps, [14].
[25] Transcript 26 October 2017, p 5.
Furthermore, there is significant evidence that Mr Apps frequently reminded the applicant that his two options were to plead guilty as charged, or proceed to trial. So much is clear even from the applicant’s affidavit:
I also thought that I should enter pleas of guilty to all of the charges because this is what Mr Apps and my Dad told me.
… When I asked why I was entering a plea of guilty to manufacturing Mr Apps said words to the effect that I am either guilty of everything or I am not.[26]
(My emphasis)
[26] Affidavit of Stefan Scuteri, [70]-[71].
In cross-examination while giving evidence in support of his application, the applicant said:[27]
[27] Transcript 26 October 2017, p 19-20.
Q.When [Mr Apps] read [the handwritten instructions] back you understood, didn't you, that firstly you were going to plead guilty at that time.
A.Yes.
Q.And you understood that 'guilty' means guilty as charged.
A.What I understood it meant - 'guilty' meant was that I was guilty for all offences and that I couldn't just say I was not guilty for this - guilty for that and not guilty for this. Therefore, if I plead guilty it was to all charges.
Q.All charges on the information.
A.Yeah.
…
Q.So you understood pleading guilty meant pleading guilty to those charges.
A.Yes.
(My emphasis)
Discussing the potential for Bruno Scuteri to assume responsibility for the laptop bag, Mr Apps said in his affidavit:
When the suggestions [sic] was made that Bruno would, or might, accept responsibility, I could only respond that the prosecution alleged that Scuteri himself was the principal offender, and the prosecution required him to plead guilty as charged, or go to trial.[28]
(My emphasis)
[28] Affidavit of Stephen Apps, [15].
The handwritten instructions prepared by Mr Apps contain more references to the applicant pleading guilty as charged:
Mr Apps said that, whatever Bruno may say, the DPP, presumably on information from the police, alleged that I was the main offender.
He repeated that the DPP expressed an opinion that I may get not less than 6 yrs [sic] head sentence if I pleaded guilty as charged … Over the course of the morning [Mr Apps] repeated – time and time again – that only I could know whether I am guilty as charged, and that the decision whether I pleaded guilty or not guilty was my decision and my decision alone. Mr Apps would not tell me what I should do in this respect.
…
[Mr Apps] then spoke with me. He said that there was no opportunity to plead to a lesser charge.
…
Mr Apps finally came out and said that I should decide one way or the other, but he repeated, yet again, that the decision as to whether I plead guilty or not guilty is mine alone. Mr Apps could not tell me what I should do.
I have decided to plead guilty to both charges.
The DPP has apparently amended ct 2. When I spoke to Mr Apps outside his Chambers I initially said that I was not manufacturing for sale. Mr Apps said that if I was not [manufacturing for sale] it was open to me to plead Not Guilty. Since that exchange, I have decided to plead guilty as charged.
(My emphasis)
I note in passing the first sentence of the last paragraph, to the effect that the prosecution had amended the second count. No such amendment was made or discussed in court. That is perhaps a reference to the prosecution’s indication that it would accept a plea to count 2 in relation to Bruno Scuteri and Leuzzi. In any event, nothing turns on it.
The applicant was arraigned twice on the day of trial – and presumably also on previous occasions – on the charges to which he ultimately pleaded guilty. The names of the charges and the particulars, which were twice read to the applicant, quite clearly state the offences and nature of the conduct to which they relate. It defies credibility to suggest that the applicant could have proceeded throughout these proceedings, spanning several years and multiple trial listings, and not be aware, at least in a general sense, of the elements of the offences with which he was charged. It is, as Doyle CJ observed in Brooks, not ‘a case in which [the applicant] did not understand the basis of the prosecution case against [him] (although [he] might not have understood all of the details).’[29]
[29] R v Brooks (2007) 96 SASR 478, [70].
Indeed, the applicant admitted in cross-examination that he was aware that a charge of trafficking in a controlled drug involved an aspect of commerciality, and that, when he was arraigned for the second time on 14 February 2017, he knew that he would plead guilty to both offences as charged:[30]
[30] Transcript 26 October 2017, p 21-3.
Q.You knew that 'trafficking' means an offence involving selling drugs.
A.Well, yes, and I also thought that it could be assumed when in possession - that the police would assume that you were trafficking.
Q.When you were arrested for trafficking in a controlled drug you knew that what that meant was that the prosecution and police were saying that you were intending on selling the drugs you had on you.
A.Yes, assuming.
Q.That's what you understood the police were saying.
A.Yes.
Q.Because you had been convicted of trafficking previously.
A.Yes.
Q.And on that occasion you told the judge through your counsel that you were selling to your friends and supplying to them as well.
A.Yes.
…
Q.In any event, when you pleaded guilty to the offences on 14 February 2017, you knew you were pleading guilty to trafficking in a controlled drug.
A.Yes.
Q.You heard that read out to you twice that day.
A.Yes.
Q.And you knew that you were pleading guilty to manufacturing a controlled drug for sale.
A.Yes.
Q.Again, that had been read out to you twice.
A.Yes.
Further, the report of Dr Lim which was prepared for sentencing submissions states that:
Mr Scuteri indicated he went back to manufacturing amphetamines for his own personal use together with his brother Bruno in May 2013, shortly after he was convicted of similar drug related offending, because of his ongoing significant drug addiction that had remained unaddressed. Reportedly, the need to continue to maintain his habit on this occasion was compounded by the fact that he no longer had an income from his gelati business. His parents also refused to allow him to return to the family restaurant unless he underwent drug rehabilitation.[31]
[31] Psychological report of Dr Lorraine Lim, provided to the Court via email on 22 May 2017, p 6.
That passage is taken from a section headed ‘Current Drug Trafficking and Manufacturing Offences’. It is followed by a discussion of the applicant’s attitude since his remand in custody following his arrest on these charges.
The applicant gave evidence denying having told Dr Lim that he had returned to manufacturing amphetamines. He said that that was a mistake on Dr Lim’s behalf, and that she must have been referring to the 2011 offences. I do not accept that evidence. It is clear from the context of Dr Lim’s comment that she was not referring to the 2011 offences.
For the above reasons, I am unable to accept the applicant’s evidence in support of his application as truthful. I am not satisfied that the factual basis for the application has been made out.
I have considered the evidence of Mr Twiggs to the effect that the applicant maintained his innocence of the offences charged. The applicant having admitted – by virtue of his pleas – the essential elements of the offences, a later denial of the same elements must be viewed sceptically.
Finally, I note Mr Algie’s submission that the lack of acknowledgement of the factual basis for the pleas demonstrates that the applicant did not intend to plead guilty as charged. This is a case in which there was relatively little scope for argument or negotiation as to the factual basis of the pleas. Implicit in the references to pleading ‘guilty as charged’ is the notion that the plea is entered more or less on the prosecution case. Properly viewed in the context of the handwritten instructions and the situation in which they were made, and against the weight of evidence against such a conclusion, this submission does little to advance the applicant’s case.
Accordingly, I reject the applicant’s evidence that he did not know that he would be pleading guilty to both offences as charged. I reject this evidence because it is inherently unlikely, and because there is significant evidence to suggest that the applicant was well aware, at the very latest by the time he signed the handwritten instructions, that his choices were to plead guilty as charged or proceed to trial.
I find that the applicant was aware of the charges to which he would plead and was substantially aware of the conduct alleged to have constituted those offences. I do not find that his pleas were motivated by a consciousness of guilt. The onus is on the applicant, however, to demonstrate that a miscarriage of justice would occur if the pleas were allowed to stand. I do not accept that he believed that he was innocent of these charges. I reject his evidence about that.
Whether something ‘went wrong’ on 14 February
Mr Algie submitted that the fact that the applicant had, at all previous times, maintained his desire to plead not guilty and go to trial was evidence from which an inference could be drawn that something had gone awry on 14 February 2017. I do not accept that submission. As I have already mentioned, it is not unusual for an accused person to change his or her plea at a late stage.
Mr Algie seemed to imply that the decision was made in a hurry. It was not. It is true that the question of a plea does not seem to have arisen before the adjournment on 14 February 2017. However, the salient issues, namely the strength of the prosecution case and the potential for cross-examination by Mr Barklay, were apparent to the applicant from at least the time he signed the written instructions on 13 February. He had ample time to consider those matters. Even after the issue of a plea was raised, the applicant spent several hours discussing the matter with Mr Apps and with his father.
The present case is also not a case where trial counsel provided some form of definitive advice which was misguided, imprudent or incorrect. In Wilkes, counsel asserted to the appellant that: ‘[you] are going to lose this case’ and that a plea of guilty would ‘definitely save you a couple of years in gaol’.[32] In the case at bar, it is quite obvious from the material to which I have already referred that Mr Apps was at pains to emphasise that the decision on whether to plead guilty was entirely a matter for the applicant. The handwritten instructions specifically state that ‘Mr Apps has made no representations or promises as to what sentence of imprisonment I will receive. That, obviously, is for the trial judge.’ The applicant conceded, in his evidence before me, that:[33]
[32] (2001) 122 A Crim R 310.
[33] Transcript, 26 October 2017, p 18-19.
Q.On 14 February, I think in the afternoon, having spoken to your father first, you came back to Mr Apps and you said you were going to plead guilty.
A.Yes.
Q.That was a decision that you'd told your father about before you met with Mr Apps.
A.Well, I'd spoken to my father and his advice was, you know, that Mr Apps seems to think it's best to plead guilty and it would be the honourable thing to do and that perhaps I should plead guilty and, you know, take responsibility. At that stage I felt backed into the corner and I didn't feel as though there was anything else I could do, that's what I had to do.
Q.You knew you could have pleaded not guilty didn't you.
A.What I mean by that is I felt as though that was what I had to do to get the best result, I had to plead guilty.
Q.And by that you mean that if you'd pleaded guilty you would have got a lesser sentence.
A.Possibly.
…
Q.You thought [pleading guilty] would be the better option for you.
A.Well, I was made to believe that, yes.
(My emphasis)
The applicant also acknowledged in evidence that he knew the choice to plead guilty was his alone:[34]
[34] Transcript, 26 October 2017, p 16-17.
Q.You agree, don't you, that Mr Apps didn't pressure you into pleading guilty.
A.No, but he did suggest that it was a good idea to.
Q.He gave you advice that you should, but he didn't pressure you into doing it.
A.His words were, the choice was mine and only mine.
Q.You understood what he meant by that.
A.I believe so, yeah.
Q.It was your choice at the end of the day.
A.That's right.
Clearly, there was nothing improper about Mr Apps’ advice.
Mr Algie further submitted that the applicant’s father being involved in the discussions is cause for ‘concern’. The evidence makes plain that the applicant’s father was a significant figure in his life, having provided ‘moral advice’ to the applicant and his brother throughout the proceedings. Moreover, Mr Apps spoke separately with the applicant after speaking to his father, after which he invited the applicant to discuss the matter with his father. The applicant then in fact spent between one and one-and-three-quarter hours discussing the matter with his father. The course adopted by Mr Apps was entirely proper.
Mr Algie questioned ‘what was sought to be achieved’ by the continued discussions with the applicant about resolving the matter. Quite clearly, the gain sought was a potential reduction in sentence for the applicant. Mr Apps was clearly of the opinion that it was a strong case, and there was a significant chance that the applicant would be convicted and, especially given his record, serve a sentence of imprisonment. A plea of guilty would very likely lead to a lesser sentence, a matter which was clearly not lost on the applicant.
I find that there was nothing improper in the procedure adopted by Mr Apps. I further find that there is no basis for an inference that anything had ‘gone wrong’ with the process.
Conclusion
In summary, the applicant pleaded guilty to the two offences knowing, at least in general terms, of the conduct to which he was admitting. He did so in the face of a strong prosecution case, with the intention of securing a reduced sentence. It has not been established that anything improper occurred in the events leading up to, or after, the pleas. The case at bar is, therefore, similar to that before the Court in R v Brooks. The remarks of Doyle CJ in that case are apposite:[35]
In essence this is a case in which Ms Brooks pleaded guilty, knowing the case against her, and realising that it was likely that she would be convicted. Her plea of guilty was influenced by the hope of gaining a reduction in her non-parole period from a plea of guilty. Later, with the benefit of further legal advice, she realised that on one version of the facts, a version she had not previously put forward or raised, there was a possibility that she might be found not guilty. She had not previously been advised on that version of the facts, but nor had she sought advice on it or raised it with counsel at trial. There was no reason for anyone to think that her plea of guilty was entered on this basis.
Reduced to its essentials, Ms Brooks confronted with a powerful prosecution case, pleaded guilty but has subsequently realised that there is a version of the facts which, if accepted by the jury as a reasonable possibility, might have meant that she would not be found guilty. But the fact remains that she pleaded guilty, knowing what she was doing.
[35] (2007) 96 SASR 478, [66]-[67].
Having considered, both separately and in totality, all of the submissions made by Mr Algie, I am of the view that no miscarriage of justice will result if the pleas entered by the applicant are allowed to stand. Accordingly, I dismiss the application.