R v Shane Cringle - [2011] ACTSC 27

R v SHANE CRINGLE
[2011] ACTSC 27 (23 February 2011)

CRIMINAL LAW – application to withdraw plea of guilty – reasons for withdrawal – applicant mistaken as to matters going to mental elements of offence – no appropriate opportunity to consider relevant implications – application made early– outline of arguable case provided – elements of charge not explained – experience from criminal history relevant but not decisive – application granted

Attorney–General v Kitchen and Roberts (1989) 51 SASR 54
R v Gomez [2007] ACTCA 21
R v Roach (1990) 54 SASR 491
Webb & Hay (1992) 64 A Crim R 38

No. SCC 47A of 2010

Judge: Teague AJ
Supreme Court of the ACT

Date: 23 February 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCC 47A of 2010
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

SHANE CRINGLE

ORDER

Judge:  Teague AJ
Date:  23 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

The application is granted.

2.

When an application is made to withdraw a plea of guilty, the judicial response is likely to be sceptical. The consequences of entering a plea of guilty, and of withdrawing it, are always likely to be significant. This is so from a number of viewpoints: the person enforcing the plea; victims; witnesses; and the court. The reasons for the withdrawal need to stand up to close scrutiny.
4.
Four charges were laid against Shane Cringle arising out of events which occurred on 16 December 2009. The events occurred in a suburb of Canberra at or near two properties not far apart. The charges against him were burglary and theft as to the first property, attempted burglary as to the second property and going equipped for theft not specifically linked to either property. On 4 February 2010 in the ACT Magistrates’ Court, Shane Cringle pleaded not guilty to the first two charges and guilty to the third and fourth charges.
On 16 June 2010, Shane Cringle applied to this Court for an order permitting the withdrawal of the two pleas of guilty. The grounds for the application were that at the time he had pleaded guilty he had been mistaken in certain beliefs as to matters going to the elements of the offences charged. What was advanced on his behalf by Mr Davies, his second lawyer, was that he had little recollection of the events, that he was unable to admit to the mental elements of the offences, that at the time of the pleas he erroneously believed that simply as a consequence of the breaking of the window at the second property, he was thereby guilty of the offence of attempted burglary, and that at the time of the pleas he also erroneously believed that being in possession of tools that were capable of being used for breaking into premises he was thereby guilty of going equipped for theft. Those grounds focused on what had passed between Shane Cringle and his first lawyer, Ms Foliaki-Singh, when the two conferred before they went into court on 4 February 2010, when he was called on to announce his plea. Ms Foliaki-Singh subsequently became very ill and her place as Shane Cringle’s lawyer was taken over by Mr Davies.
7.
Initially, I had reservations about granting the application. Eventually, I did so despite two major obstacles, which were made the focus of my attention by Mr Hickey, who for the Crown, opposed the granting of the application to withdraw.
The first was that the application was not supported by an affidavit from Shane Cringle himself. The second was that the outline of the case which Mr Davies planned to put on behalf of Shane Cringle was scarcely compelling.
More than one consideration led to my granting the application. The most important consideration was that I was prepared to accept the difficulties of the position of Ms Foliaki-Singh, at the time when she attended on Shane Cringle shortly prior to his entering his pleas. Put shortly, she acknowledged that, when she spoke to Shane Cringle before he pleaded guilty, she was in a rush, she had limited papers to work on, and she took account of Shane Cringle’s prior experience in circumstances of the kind that led up to her speaking with him to justify not explaining certain matters in greater detail. What she outlined was consistent with Shane Cringle being called on to make a decision to enter pleas of guilty without the benefit of the appropriate opportunity to consider all relevant implications. Clearly, a reasonable opportunity for that consideration should accompany such a decision.
I also treated as a significant matter that Mr Davies, on behalf of Shane Cringle, made the application to me both early, that is well before trial, and promptly after he took over from Ms Foliaki-Singh. That the application was made early rather than late was important for what may sound like a negative reason. It was that I found less guidance than I would have liked as to the approach when dealing with early applications, in so many of the past cases. It appears that the reason for the relative lack of guidance is that most reported cases focus on applications that are made late, that is at or close to trial, when questions of the motivation of the applicant, sometimes linked to the availability of witnesses, are very much more likely to come into play.
Another factor was that Mr Davies was able to provide to me an outline of the arguable case that he proposed to make on behalf of Shane Cringle linked to the evidence available. What Mr Davies provided may not have been particularly compelling, but it was not of such little weight as to be as readily dismissed as Mr Hickey would have had me believe. In these reasons, I do not propose to analyse factors going to weight. In part, that is because such an analysis of the outline is not central to my decision. The position possibly could have been otherwise if more materials warranting a close scrutiny of the evidence had been made available to me. Then again, that is a factor linked to the circumstance that the application had been made early. There is also the consideration that there was always to be a contest as to the other two charges arising from the events on the night of 16 December.
The legal principles that apply to an application of this kind are clear enough. There is a discretion to permit withdrawal of a plea of guilty. The discretion should be exercised if there would be a miscarriage of justice in the event that the applicant was not permitted to withdraw the plea. During submissions, there was not a great deal of reference to authorities.
Mr Hickey drew my attention to R v Gomez [2007] ACTCA 21. That case is clearly valuable in its statement of the fundamental legal principles. However, it provides only limited assistance in the instant case, because it is, and draws attention to, so many other cases where the application was made late. Given my initial concern as to the absence of any affidavit from Shane Cringle, my attention came to focus particularly on certain South Australian cases, to which I will refer shortly.
What was placed before me as the evidentiary basis for the application included an affidavit sworn by Mr Davies, to which was annexed a police statement of facts, two photos of a broken window, and a pre sentence report. Also included were materials emanating from Ms Foliaki-Singh. I was informed that the unusual nature of the way in which those materials came before me was due to her having become quite seriously ill during 2010. The materials included a short affidavit, a copy of the notes made by her when she spoke with Shane Cringle on 4 February 2010, and a statement prepared jointly by Messrs Hickey and Davies after they had conferred with her. Both accepted that the statement provided detail that was not in the affidavit, but which it was appropriate that I consider.
There was no affidavit from the applicant before me. That circumstance led to Mr Hickey arguing that the materials which were relied on to support the application were inadequate. I would have found that position of considerable weight if I had not had regard to what was said in three South Australian cases: Attorney–General v Kitchen and Roberts (1989) 51 SASR 54; R v Roach (1990) 54 SASR 491; and, Webb & Hay (1992) 64 A Crim R 38. I do not propose to review those cases here, given that the circumstances are necessarily so very different. Those cases do, however, satisfy me that, in appropriate circumstances, the court on an application of this kind, can act on material other than direct evidence from an applicant. Indeed, in many situations, a court not only could, but should, do so to avoid imposing the unfair burden on an applicant of having to potentially submit to cross-examination, which may be particularly unfair in circumstances such as those of an early application. One of the factors to be taken into account, as was the position in Webb & Hay is the position taken by, and hence the reliance that could be placed in, the legal representative of the applicant. Here, I had no reason to consider that Mr Davies was doing otherwise than his duty to both the court and his client, when he outlined the bases upon which a contest as to guilt would justifiably proceed if the pleas were withdrawn.
18.
In my assessment, what was said by Ms Foliaki-Singh as to the circumstances of her attendance on Shane Cringle, before they went into the Magistrates Court on 4 February 2010, was very troubling ,and relative to this application, compelling in occasioning a concern as to unfairness. She states that her attendance on the applicant was “a pretty rushed affair” because the prison van was late. She refers to her having only a copy of the charge sheet and the police statement of facts available to her. She recalls that she summarized most parts of the statement of facts for Shane Cringle rather than reading it to him word for word. She goes on to say that she did not tell him what the elements of each of the offences were and did not ask him specifically whether he admitted each of the elements. The elements of the charge of going equipped for theft are not so easily appreciated as to warrant merely a skimpy explanation, regardless of an applicant’s experience in criminal hearings. The combination of handicaps, and the last deficit in particular, represent the main reason for my granting the application.
20.
She went on to explain why, to a considerable extent, she relied on the circumstance that she had acted for him before and hence was aware of his criminal history. It is clear from some older cases, that the matter of criminal history can be very relevant, particularly on late applications. The greater the experience that an applicant has in attending in court in criminal hearings, the more difficult it will be to show a lack of understanding of the process. But the force of an argument linked to experience may not be as compelling where the offences are of a significantly different nature, or, as here concerning the element of attempt, where one or more elements may call for a reasonably detailed explanation.
For the reasons indicated above, I was well satisfied that I should exercise the available discretion in favour of granting the application to withdraw the pleas of guilty entered on 14 February 2010.

23.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.
Associate:
Date: 23 February 2011

Counsel for the Crown:  Mr T Hickey
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the Defendant:  Mr R Davies
Solicitor for the Defendant: Legal Aid ACT
Date of hearing:  16 December 2010
Date of judgment:  23 February 2011