R v Simmons
[2017] SASCFC 49
•19 May 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v SIMMONS
[2017] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Lovell)
19 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for permission to appeal against conviction after pleas of guilty.
The applicant pleaded guilty to two charges of dishonestly dealing with documents (contrary to s 140(4) of the Criminal Law Consolidation Act 1935). Sentencing was adjourned for about six months to enable the applicant to raise funds to make full restitution. Shortly before the adjourned date for sentencing, the applicant applied to the sentencing Judge to set aside the pleas on the basis that he had been pressured by his counsel into entering them. The sentencing Judge held a substantial evidentiary hearing and ultimately dismissed that application. His Honour gave cogent and comprehensive reasons for doing so.
The applicant applied for permission to appeal against this decision, and his convictions, to the Court of Criminal Appeal. The permission Judge, Doyle J, heard full argument. He ultimately found that it was not reasonably arguable that the sentencing Judge erred in refusing to set aside the pleas of guilty and dismissed the application. His Honour gave cogent and comprehensive reasons for doing so.
The applicant then required that the application for permission to appeal be referred for determination by the Full Court pursuant to s 48(4) of the Supreme Court Act 1935.
Discussion of procedural matters in connection with available approaches of the Court of Criminal Appeal to the matter of permission to appeal in a case of this type.
Held (per Peek, Parker & Lovell JJ) (refusing permission to appeal):
(1) If an application for permission to appeal is referred to the Full Court pursuant to s 48(4) of the Supreme Court Act 1935 and rule 120(4) of the Supreme Court Criminal Rules 2014, the Full Court may choose to make a limiting order that the hearing in the first instance will be limited to the question of whether permission to appeal should be granted and not include arguments as to the ultimate success of the proposed grounds of appeal. The Court here made a limiting order, heard full argument by the parties on the question of permission to appeal and reserved judgment on that issue.
(2) Such a limiting order was here appropriate having regard to the following combination of circumstances: the provision by the primary Judge of cogent and comprehensive reasons for his decision to refuse the application to set aside the pleas; and the provision by the permission Judge of cogent and comprehensive reasons for his decision to refuse permission to appeal; and the obvious lack of merit in the material provided by the applicant to this Court prior to the hearing of this application; and the obvious merit in the material provided by the respondent to this Court (and to the applicant) prior to the hearing of this application.
(3) While the present application is not an appeal against the decision of the permission Judge and this Court must itself determine the application, that is not to say that the Court can have no regard to the reasons of the permission Judge.
(4) The Court determines that the application is not reasonably arguable and finds itself in full agreement with the reasons of the permission Judge. It would be both pointless and time wasting to attempt to improve upon them and it is appropriate to adopt them.
Criminal Law Consolidation Act 1935 s 140; Supreme Court Act 1935 s 48; Supreme Court Criminal Rules 2014 r 120, referred to.
Coulter v The Queen (1988) 164 CLR 350, discussed.
Meissner v The Queen (1995) 184 CLR 132; Tsvalas v The Police [2016] SASC 103; R v Pugh (2005) 158 A Crim R 302; R v Stewart [2010] SASCFC 72; R v Brooks (2007) 96 SASR 478; R v Dorning (1981) 27 SASR 481; R v Kikidis (2012) 112 SASR 148, considered.
R v SIMMONS
[2017] SASCFC 49Court of Criminal Appeal: Peek, Parker and Lovell JJ
THE COURT.
Application for permission to appeal against conviction after pleas of guilty.
Introduction and overview
This is an application by Mr John Bradley Simmons (the applicant) for permission to appeal against his conviction of two charges of dishonestly dealing with documents contrary to s 140(4) of the Criminal Law Consolidation Act 1935. The applicant was convicted upon his pleas of guilty before District Court Judge Rice on 5 June 2015 and seeks to have those pleas set aside.
The applicant has since been sentenced to two years imprisonment which was suspended. In his remarks on sentencing on 13 July 2016, Judge Rice provided the following short overview of proceedings up to that time.
These matters have a long and complex history before the courts. The charges were first before this court about three years ago. You pleaded not guilty on 9 September 2013. You have had a number of solicitors act on your behalf. Negotiations with the prosecution were undertaken and became quite protracted. A trial date for 22 September 2014 was fixed. That date was vacated and another fixed for 6 July 2015.
For the purposes of the proposed trial, you had Mr Richards then acting for you. Prior to the second trial date, I was advised that the matter had resolved and that you were prepared to plead guilty to the two counts referred to earlier being different to the charge upon which you were committed for trial and two earlier charges in this court.
You pleaded guilty on 5 June 2015, over a year ago. Quite sensibly and appropriately, you had been advised that restitution would benefit you in the sentencing process. I gave you time to make that restitution but that, for a number of reasons, was not able to be achieved at that time. The proceedings took a turn for the worse when you terminated your instructions to Mr Richards. You filed documentation indicating that you were wanting to change your pleas to ‘not guilty’.
It is a complex matter to change your pleas when you have had representation and the Legal Services Commission assisted by asking Mr Deegan to act for you. Unhappily for the court, you terminated Mr Deegan’s instructions after a short time. Your application to withdraw your pleas of guilty came on for hearing on 19 February and 22 February this year. You were unrepresented. I dismissed your application. The question of restitution was again canvassed. After some submissions I determined that the amount of restitution should be $40,000. This is a topic to which I will return.
I have spent some time giving a brief history of this matter because it is relevant to whether you should be given any discount for your pleas of guilty. I do not accept that you should be given any discount for your pleas of guilty. You still maintain that you are not guilty. Your pleas of guilty have not saved any court time, in fact, you have wasted a lot of court time. I also do not accept that you are in any way contrite for your actions.
Luckily for everyone, you instructed Mr Graham to act for you for the purposes of submissions. I will come to those submissions, including compensation or restitution, shortly.
I need to say something about the facts of the case.
The victim in this case, Mr Hentschke, engaged you to source a Toyota RAV 4 for him to purchase. You claimed that you were able to have people buy through you at a discounted price. You claimed in this instance that you were able to source such a vehicle through Victorian dealerships. You used false documents to initially secure a deposit of $3,500 from the victim and later what was the purported balance of $31,043.41 also from the victim.
You produced to the victim a contract of sale purporting to be the purchase in the name of the victim. That was not a contract of sale by the dealership and you had falsified it to make it appear to be a genuine purchase. By that means, you secured the deposit of $3,500 from the victim.
As for count 2, you claimed to the victim that there were problems with the delivery of the RAV 4 that was the subject of the sale and the deposit that had been paid. You told him that Toyota public relations were now involved and that Dwyers Toyota, Bairnsdale, Victoria was in control of the deal. You then produced to the victim another false contract of sale, this one in the name of Dwyers Toyota and sought the balance of the purchase price of $31,043.41. This amount took into account the previous payment of the deposit.
You produced a document showing the RAV 4 had been paid for. That document was false and you knew it. In fact, the victim’s money had gone towards the payment of other debts of yours with the dealership. In the end, the victim did not get his car and had paid the deposit and balance as requested by you.
This is not the first time that you have been before the court for an offence of dishonesty, although the other matter is not prior offending. On 18 June 2015, you were dealt with in the Holden Hill Magistrates Court for deception to benefit yourself. The offence having been committed in November of 2011. You were convicted and placed upon a 12 month good behaviour bond to come up for sentence if called upon.
Compensation of $5,840 was paid. Apparently four counts were reduced to one count on full facts. I have received a document which was the factual basis on which the court assessed penalty. That offence and the two with which I must deal reflect that you are a fraudster, conman and liar. Not only is there a need for general deterrence, but a personal deterrent to encourage you not to defraud anyone else. As I indicated a little earlier this morning, I would not trust anything you say.
I return to the topic of restitution. As mentioned, I determined that if there was to be full restitution or compensation, the amount of $40,000 would be appropriate and that amount included some expenses of the victim. The victim has already received $34,336.37 from you but, as I understand it, the money came from your father’s superannuation. The Sheriff presently holds the balance for the victim, namely $5,663.63. I order that that amount be paid to the victim without delay.
I therefore proceed on the basis that full compensation has been made. I do note from the victim impact statement that this whole matter has been very stressful for the victim and his family. Submissions were made on your behalf that the transactions concerned were an unmitigated disaster for you financially. I find myself not able to make any finding about that. …
A short summary of relevant facts
As at April 2010, Mr Hentschke (the victim herein and sometimes referred to as the complainant) was working with the applicant’s father and had been told by him that the applicant was an independent vehicle broker. In April 2010, Mr Henschke told the applicant’s father that he wished to purchase a Toyota Rav 4 cylinder Cruiser-L vehicle. A few days later, he received a phone call from the applicant, who stated that he could not get a 4 cylinder Cruiser-L model but he could get a 6 cylinder ZR6 model which had a minor scratch, at a price of $35,000.00. This was considerably less than the retail price then generally being quoted for that type of vehicle.
Mr Hentschke later telephoned the applicant and agreed to purchase the vehicle at that price. He was later told by the applicant that he had placed a deposit of $3,500 on the vehicle and, on 20 April 2010, Mr Henschke electronically transferred $3,500 to a bank account of the applicant at his request.
The firm of Nunawading Toyota & Eastside Mitsubishi (Nunawading Toyota) was a Toyota dealership with which the applicant had previously had various dealings. The applicant sent to Mr Henschke what purported to be a Nunawading Toyota contract of sale document dated 20 April 2010 (exhibit MH-1) to the complainant. It stated that the buyers were Mark and Caroline Hentschke and it purported to relate to a Toyota Rav 4 with a balance payable of $31,043.41.
It was to be the prosecution case that this was not a genuine document in that the applicant had amended a Nunawading Toyota contract of sale document by inserting the Hentschke’s names and address so as to falsely convey the impression that a particular Rav 4 would be sold to the complainant for the balance of $31,043.41.[1] This document was to later form the basis of count 1 to which the applicant later pleaded guilty.
[1] The prosecution evidence included that the applicant had been involved with obtaining quotes about and purchasing vehicles from Nunawading Toyota prior to 20 April 2010 and had been able to obtain an original document from Nunawading Toyota and alter it in the manner stated above.
The history of what then occurred over the period from 20 April 2010 to July 2010 is very long and convoluted. It includes communications between the applicant and Mr Hentschke; communications between Mr Hentschke and Toyota dealerships; and numerous communications and dealings between the applicant and various vehicle dealerships and financial institutions about proposed deals and financial arrangements concerning Mr Hentschke’s matter and various other motor vehicles.
For present purposes, it is sufficient to refer to the overview given by Judge Rice and to note that the prosecution outline of argument provided on this application accurately summarised the prosecution case thus:
Re Count 1: the complainant wanted to buy a RAV4. Mr Simmons agreed to act as a broker. There is no dispute about this. The complainant was in possession of a document (MH1) purporting to be a contract of sale for a new car from Nunawading Toyota. The document is dated 20 April 2010. The complainant’s name and address are on the document. The complainant paid $3,500 on 20/4/10 into the bank account of the applicant. A bank record confirms this payment. Nunawading have no record of the complainant’s name. The complainant did not receive a vehicle. …
Re Count 2: As a result of assurances from the applicant to the complainant that the sale price was in fact the same as had previously been agreed and that the dealership was going to accept some of the losses, the complainant deposited $31,043.41 into the bank account of Dwyers Toyota by cheque.
The complainant was in possession of a document (MH3) purporting to be an invoice from Dywers Toyota in relation to a Toyota which was to be sold for $58,836.78. The invoice is dated 21 May 2010. The document in the possession of the complainant (MH3) and addressed to him contained details of a vehicle with a change over price of $58,836.78. It was provided by the applicant. The prosecution case was that it was not a matter of happenstance that this was the exact same purchase price that Dwyers had given the applicant for a Toyota Hilux. The applicant therefore used the falsified document for the purpose of deceiving Mr Henschke that the RAV4 was available. As a result of that document money was paid by the complainant to his detriment. As a result of that money being paid into Dwyers Toyota account the applicant was able to use that deposit to convince Dwyers Toyota to release the Toyota Hilux to him …
We add that later on 8 July 2010 the applicant presented the complainant with a cheque dated that day in the amount of $43,000.00 to repay or compensate Mr Hentschke. The cheque was deposited but was dishonoured on presentation.
On 19 November 2010, the applicant was interviewed by police. He gave a version of events which, on the prosecution case, was quite inconsistent with genuine documentation and the contents of prosecution witness statements.
Proceedings in the District Court from 9 September 2013 to sentencing on 13 July 2016
On 9 September 2013, the applicant was first arraigned on an Information which charged two counts of deception (the original Information) to which he pleaded not guilty. Between 9 September 2013 and 2 June 2015, there were numerous court appearances at which he was represented by various lawyers or was unrepresented. We have seen all of the transcript but it is unnecessary to attempt to summarise these matters here beyond referring to the overview given by Judge Rice reproduced above.
The entering of the pleas of guilty to the new Information
On 2 June 2015, the applicant, represented by Mr Richards, appeared before District Court Judge Rice at a directions hearings (referred to as ‘a special directions hearing’). The prosecutor, Ms Smith, stated as follows:
We say that the matter is quite a strong prosecution case and should be capable of resolution. I have put two proposals to my friend. The first proposal to resolve this matter your Honour will see that the accused is charged with two counts of deception, we would be prepared to accept a plea to one count of deception which covers the entire sum of, you will see count 1 relates to $3, 500, a deposit, and count 2 relates to approximately $31,000. So, the one count, if the accused were to plead guilty, would cover the entire sum of money.
With respect to the issue of suspension, we say this matter warrants a custodial sentence but the issue of suspension, we say, would largely turn on whether the accused was able to compensate the complainant for the sum of money that we allege is the basis for the deception.
The accused doesn't have a lengthy history. He has a relevant history. He has recently pleaded guilty in the Holden Hill Magistrates Court to one count of deception, originally there were four counts. That matter resolved on the basis, as I understand it, of a plea of guilty to one count of deception. He is yet to be sentenced for that matter.
…
The other option that I raised with my friend this morning is that alternatively the accused may be prepared to plead guilty to two counts of dishonestly dealing with documents. That would relate to what we say was a false document, namely a faulty Nunawadding contract. We would allege that on 20 April 2010 the accused used the document that was false, namely a Nunawading Toyota contract, knowing it to be false and intending to deceive the complainant, by that standing a benefit for himself. That would relate to the $3,500.
Secondly, dishonestly dealing with documents on 21 May 2010 the accused used a document that was false, namely a Dwyer’s Toyota invoice knowing it to be false and intending to deceive the complainant and by that means to cause a detriment to the complainant. So, that is the other option.
I should say this that dishonestly dealing with documents attracts the same penalty as deception, which is 10 years.
In any event, if this matter is to proceed to trial we will be relying upon what we say is evidence of false documents to make out the deception charges. So, it is something that we would be proposing to lead at trial in any event but it is another option if the accused were prepared to plead guilty to two counts of dishonestly dealing with documents, we would be prepared to accept pleas to that.
Once again the issue of suspension would turn on whether he was able to pay compensation to the victim in this matter. Your Honour will see that he has made certain admissions during his record of interview. I have summarised that in the recommendation as to category. There is a lot of documentation.
We would say that if a trial can be avoided he would be entitled to some discount given that I expect that this trial will take the full five days given the volume of material, contracts, invoices, the correspondence between the accused and the various car dealerships and the accused and the complainant. There is quite a lot of material that would have to go before the jury. So, there certainly would be utilitarian benefits in resolving this matter. I would accept that Mr Simmons would be entitled to some discount for that reason.
Mr Richards indicated that he needed some time to discuss these matters with the applicant and the matter was remanded to 5 June 2015 for Mr Richards to take further instructions.
On 5 June 2015, the applicant, again represented by Mr Richards, appeared before District Court Judge Rice. The prosecution presented a new Information dated 5 June 2015 (the new Information), the two counts of which were as follows:
First Count
Statement of Offence
Dishonestly Dealing with Documents. (Section 140(4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
John Bradley Simmons on the 20th day of April 2010 at Adelaide and other places, used a document that was false, namely a Nunawading Toyota Contract of Sale, knowing it to be false and intending to deceive Mark Rodney Hentschke, and by that means to cause detriment to Mark Rodney Hentschke.
Second Count
Statement of Offence
Dishonestly Dealing with Documents. (Ibid).
Particulars of Offence
John Bradley Simmons on the 21st day of May 2010 at Adelaide and other places, used a document that was false, namely a Dwyers Toyota Invoice, knowing it to be false and intending to deceive Mark Rodney Hentschke, and by that means to cause detriment to Mark Rodney Hentschke.
The prosecutor, Ms Smith, stated as follows:
MS SMITH: We did have a good result. This matter is resolved. The accused is going to plead guilty to two counts on a fresh information, which I now put before your Honour, and I ask that this information dated 5 June 2015 charging two counts of dishonestly dealing with documents replace the information currently before the court dated 22 July 2013 charging two counts of deception. I have the original and a copy for your Honour and a copy has been provided to my friend.
To be clear, before pleas are entered, your Honour will see that both counts allege a detriment to the victim, Mark Hentschke. Count 1 relates to a deposit of $3,500 paid by Mr Hentschke and the document concerned is a Nunawading Toyota contract of sale. Count 2 involves a detriment to Mr Hentschke in the amount of $31,043.41 and the document concerned was a false Dwyers Toyota invoice.
There were other documents that were falsified but we are relying upon those two documents as set out in the particulars of counts 1 and 2 as actually causing a detriment to the victim, Mr Hentschke.
The accused can now be arraigned, he will be pleading guilty. The allocutus can be administered. I understand that my friend will be seeking a rather lengthy adjournment, effectively a s 19B application. One of the reasons being to enable the accused to attempt to pay restitution to the victim in this matter.
I am not opposed to that adjournment and, indeed, as I said on a previous occasion, I think that’s an important matter for the purposes of sentencing as to whether or not we would be seeking an immediate custodial or a suspended sentence bond.
Mr Richards then confirmed that that was the position. The applicant was then arraigned on the new Information and pleaded guilty to both count 1 and count 2. The allocutus was given. A nolle prosequi was later entered on the old Information. Ms Smith raised the matter of the antecedent report and the following dialogue occurred:
MR RICHARDS: The Holden Hill matter is due for submissions on 18 June 2015.
HIS HONOUR: You can assure me that restitution has been made?
MR RICHARDS: It has, I have a reference number in respect of that. It was made in two or three lots but I have a bank reference. I can really only give an undertaking from the bar table and provide this reference which I assume is for the balance of restitution, the sum of $3,389, and I’m instructed that was paid last week.
PRISONER: This week, it hasn’t cleared yet.
MR RICHARDS: Your Honour has just heard my instructions. The reference number was 283820X770938.
HIS HONOUR: So it’s a payment by cheque and that has yet to be cleared?
PRISONER: Sorry, the payment was by electronic transfer but because I bank from an alternate bank to the party involved, it states that there’s a brief period before it will be cleared to the other party.
HIS HONOUR: All right, thank you.
It can be seen that the applicant was following the proceedings and was not shy to interject.Mr Richards then stated:
MR RICHARDS: The plea’s entered on the basis that he was effectively robbing Peter to pay Paul and the ultimate goal was not that there would be any loss but that became unstuck as a result of moneys going elsewhere in other deals he was involved with in other time.
HIS HONOUR: With the same dealership?
MR RICHARDS: That dealer and two other dealerships. He had others in the past that had not been problematic. There were three deals going at the one time, two went south and he was robbing Peter as it were to pay Paul on the two that went south intending to get moneys back.
There was no displeasure, dissension or uncertainty whatever manifested by the applicant.
On the above basis, the matter was further adjourned until 11 September 2015 for mention only. On that date, the applicant appeared represented by a solicitor. The court was informed that he had saved $7,369 towards the amount of compensation, and that his new employer had indicated that after he had completed three months’ work (which would expire on 17 November 2015) the employer would lend him the remaining money that was required to pay compensation. The matter was listed for sentencing submissions on 11 December 2015 by which time it was expected that restitution would have been completed.
However, on 5 November 2015 the matter was called at the applicant’s request. The applicant appeared unrepresented and stated that he wished to terminate the services of his solicitor, Mr Richards. The applicant further stated that his employment had been terminated and that his former employer was no longer willing to lend him money to compensate the complainant.
It was at this time that the applicant first asserted to the court that he had been “basically forced” by Mr Richards to plead guilty and stated that he wished to have his pleas of guilty set aside. He further said that Mr Richards had told him that if he pleaded guilty, no conviction would be recorded: “… I was instructed [by Mr Richards] if I pled guilty to those, no conviction would be recorded. That was his direction to me was to plead them and move on with my life …”.
There is considerable force in the prosecution contention in this Court that the applicant only raised this complaint with the court some five months after he had entered his pleas of guilty; and importantly, only when it had become apparent to him that his loss of employment made it impossible to pay the agreed restitution, which in turn made it much less likely that he would receive a suspended sentence rather than a custodial sentence.
A number of hearings followed, culminating in a hearing on 12 February 2016 before His Honour Judge Rice. At that hearing the applicant terminated the services of his then latest solicitor, Mr Deegan, and indicated that he would be representing himself at the hearing to vacate his plea, which had been listed for 19 February 2016.
The hearing before Judge Rice of the application to set aside the pleas
The applicant waived legal professional privilege at the hearing before Judge Rice of the application to set aside the pleas commencing on 19 February 2016. In cross-examination of the applicant, prosecution counsel tendered an email from him to Mr Richards dated 3 June 2015 (2:09pm) which stated in part:
Adam,
As my legal representation I give the specific instructions in relation to the deception matter being heard in the district court.
1. I plead guilt to 2 counts of dishonest dealings with documents.
I plead guilt to this, I never intended to decieve any party. I suffered loss from the first sale and admit funds may have been applied bg DWYERS group for the difference. Because I conducted 3 deals at the same time all of them resulting in a loss I believed I could cover. I failed to do so. My business practice was poor and I accept that.
2. I recognise that I am liable to restitute the victim for the financial loss. I seek a period to a maximum of 6 months to complete this restitution.
I express remorse and sincerely apologise to the victim for the loss.
I would be prepared to enter an undertaking with the court in relation to my behaviour. I would agree to not act as a car dealer licenced or unlicenced. I will not act as a middle man or alternative. That I will seek financial counseling to prevent any further issues.
I understand a sentence is std terms but would ask it be suspended with a good behaviour bond.
Thank you
John
Cross-examination on this email included the following passage:
Q You gave him specific instructions as per what is contained in your email?
A I gave him those specific instructions.
QAnd at para.1 you wrote that you would be pleading guilty to two counts of dishonest dealings with documents; correct?
A Correct.
Q And that was your decision to plead to those two offences, wasn’t it Mr Simmons?
A No.
Q Whose decision was it?
AAdam told me I had already pleaded guilty in my record of interview with the police and I couldn’t go back because that was the document you were alleging.
Q That’s not true, is it?
AYes, that’s true; that’s the phone conversation at 11 o’clock that morning in the parklands in Virginia.
Q It was your decision to plead guilty to the two counts, wasn’t it?
A No.
Q Are you suggesting that you were forced?
AAdam Richards told me I had already pleaded guilty in my record of interview. Adam Richards told me the documents that were there would already prove my guilt and I had no defence. Adam Richards also told me I had robbed Peter to pay Paul and that’s how I achieved this, that’s the same explanation you got in court, in his words.
QBut you knew, didn’t you Mr Simmons, it was still your choice whether or not to plead guilty?
ANo, because Adam told me I had pled guilt in a record of interview, that I could not go back.
QBut that was just simply your lawyer giving you sound legal advice about the strength of the case against you, was it?
A No, that was Adams’s instruction, was that I had pled guilt.
QYou accept you wrote in this email to Mr Richards that these were your specific instructions?
AAdam Richards, when I spoke to him, told me that I needed to formulate an email for him, that the instructions we had had over the phone, in the context of that conversation, were not good enough. Adam told me what to write so he could put the case forward to the court.
Q And you agreed with that, didn’t you?
A He was my legal counsel.
QAnd you were prepared to plead guilty based upon the legal advice that you had received?
A I was being pressured into making a plea.
HIS HONOUR
QBut you knew it was your decision, didn’t you? It wasn’t Mr Richards’s decision? You were seeking his advice and that’s why you were using him for that purpose?
AMr Richards told me I had already made an admission of guilt in that record of interview, that I had already pleaded guilty and that I could not go back. That was his specific instructions.
QYou understand there is a difference between a solicitor advising you, possibly in strong terms, that you should plead guilty, and him telling you, unequivocally, that you had to plead guilty. You know there is a difference between those two things?
AAdam Richards told me unequivocally that I had already pleaded guilt, that I had robbed Peter to pay Paul.
Q So, that was his assessment?
A That was his instruction, sorry.
Q They weren’t his instructions; that was his assessment of the situation, is that right?
A No.
Q Not right?
A No.
Q Not right?
A No.
Q You say he told you to plead guilty?
AAdam Richards told me to maintain the plea of guilty I had because I had to plead guilty because I had done it in the record of interview. He told me I had robbed Peter to pay Paul and he told me on numerous occasions I had pled guilty.
Q On the material presented to him?
A Correct.
Q You accepted that?
AI was confused and I expressed my confusion at the time. I vented that I was confused and frustrated.
CROSS-EXAMINATION
QIt’s true that you had heard and considered what had been said by the prosecution in court, yes?
A Yes.
QIt’s true, isn’t it, that you had heard and considered what had been said by your lawyer, Adam Richards, both in and out of court, yes?
A Yes.
QYou had also considered what his Honour Judge Rice had said during the hearing, correct?
A Correct.
QIsn’t it true that after having considered what everyone had said about the matter, that it was you who made the final decision to plead guilty to those two charges?
AAs I’ve stated before, I was forced by Adam to enter that plea because I had made an admission. I had maintained an innocent, or not guilty plea since I was charged in 2012. Do you not think it’s strange?
HIS HONOUR
QNot in the slightest, Mr Simmons. From someone in my position, I can tell you people change their pleas regularly from one of not guilty to guilty, so there’s nothing unusual about someone changing their instructions, I can tell you.
CROSS-EXAMINATION
Q You accepted that those pleas of guilty were made voluntarily by you?
AAs I’ve stated before, Adam had given me specific instructions. I was forced into making that admission.
Prosecution counsel also cross-examined the applicant concerning his claim which he had made before Judge Rice on 5 November 2015 that “… I was instructed [by Mr Richards] if I pled guilty to those, no conviction would be recorded. …”:
Q Can you repeat that? What do you say Mr Richards said to you?
AAdam Richards said to me that if full restitution was made before a trial date, that no conviction would be recorded if full restitution was made.
Q. You say that is the advice Mr Richards gave you?
AThat was part of our conversation prior to the document being shown to him where I had stamped as ‘Paid’.
Q When did this conversation occur?
A It was one of the first conversations I had with Adam about this matter.
QSo it wasn’t a conversation that had occurred following that court hearing where the prosecution raised the possibility of pleading guilty to two counts of dishonestly dealing with documents?
A I’m not sure if it was between those two or just prior to.
QBut following that court appearance when the prosecution put an offer that they would accept pleas of guilty to two counts of dishonestly dealing with documents, Adam Richards never said anything about escaping a conviction if you made full restitution?
AHe said to me he was going to put forth a discussion with you regarding back to the original offer that was put on the table. He said to me that he would have negotiations with you because it had been granted by the court.
QYou were present in court when the prosecution made it quite clear that a term of imprisonment was appropriate for this matter and suspension would hinge upon whether you could make restitution. There was no mention of whether or not a conviction would be recorded, was there?
A No.
QThe truth is there was never any discussion with Mr Richards about no conviction being recorded if you were to make full restitution?
ASame question. I had spoken to Adam Richards and sought the advice I’ve explained by answer to you numerous times.
The last passage in the cross-examination of the applicant to which we will refer is the following:
HIS HONOUR
QDo you say the only reason you pleaded guilty was because Adam Richards told you to?
A That’s exactly what I’m saying.
Q That’s all I need to know.
CROSS-EXAMINATION
QYour evidence is that’s the only reason you pleaded guilty, because Adam Richards told you to do so?
A My evidence is that he used documents with different dates.
QCould you answer the question: is your evidence today the only reason you pleaded guilty was because Adam Richards told you to do so?
A No.
Q That’s not your evidence?
A That’s not my only evidence.
Q Why else would you plead guilty?
AI pled guilty because of what Adam put before me was his instructions that I had made an admission which he couldn’t understand the charges he was putting before me because he didn’t understand the dates.
QYour evidence is that your decision to plead guilty is solely related to what your lawyer had said?
A Yes.
Q There were no other reasons why you chose to plead guilty?
A Other than the external threats and pressure I was receiving at the time.
Mr Richards gave evidence including the following salient passage:
QDid you say to Mr Simmons, at any stage, that if he pleaded guilty he would avoid being sentenced?
ANo because that’s absurd but I may well have said to him that I thought that if he entered pleas that his prospects of a non-custodial sentence were significantly enhanced.
QAnd do you recall saying to Mr Simmons at any stage that if he pleaded guilty to the charges, the two counts, that no conviction would be recorded?
A No.
Q So you never said that to Mr Simmons?
ANo, I know that there was an email him, whether it’s one I’ve read today, it may well be but there was some point, I think we – I’ve read something in which that opinion was expressed, it may have been the DPP, a copy of the affidavit in this matter which I read before coming into court for the first time today. But with respect that result would have been astronomically unlikely and I would never give a client that sort of advice on a matter of this seriousness. And the other matter is on the issue of imprisonment alone while I would say to a client that his prospects of avoiding it might well be good if he took a particular course, again I would never say to a client that that was guaranteed because I’ve learnt over the years that nothing is guaranteed in a courtroom and everything turns on the facts of every case. It’s not for counsel to make promises.
QDid you force Mr Simmons to plead guilty to the two counts of dishonestly dealing with documents?
A No.
QIn your opinion were you in any way imprudent in advising Mr Simmons in respect of his guilty pleas?
AWell I’m guaranteed to say no I wasn’t, but can I qualify the answer I said before ‘No’. I would never force a client to plead guilty but on many an occasion I’ve been very blunt in my assessment of matters and I’ve been blunt in my advice about matters. I would be very surprised if on my reading of the materials now and as it has refreshed my memory if my advice wasn’t quite blunt but I never force anyone and I’m always scrupulous in ensuring that clients are aware that those matters have to be their own choice, even when I’m putting forward in a fairly agricultural manner, if I could put -
HIS HONOUR
Q Or robust?
A Robust, thank you, your Honour, a much preferable term.
CROSS-EXAMINATION
QIn your view, did you in any way conduct yourself inappropriately in providing Mr Simmons legal advice about these charges and his pleas?
AAgain I’m going to say, of course, that I didn’t in this matter and that’s not for me to judge but I always try to act in a way consistent with my client’s best interests. That’s what informs all of the decisions I make when I practice. And to some extent the devil takes what the devil wants but my job is to represent my client, and I attempt to do so.
QTo the best of your recollection when you were communicating with Mr Simmons about this matter and more particularly in relation to the fresh information and the two charges of dishonestly dealing with documents, did he appear to understand the nature of the charges to which he was pleading guilty?
AI can only say yes in the sense that if I thought that he didn’t appear to then I would have taken very obvious steps to ensure that in my opinion he did. So I could only say that he did appear so, but having said that, he always presented as very much an aggrieved party in terms of the times that I took instructions from him and the initial instructions that I took and right through proceedings and the flavour of that appears in any event on his correspondence.
At the conclusion of the evidence of Mr Richards the matter was adjourned for closing addresses. After those lengthy addresses, Judge Rice delivered an ex tempore decision dismissing the application to set aside the pleas.
The ruling of Judge Rice in refusing the application to set aside the pleas
In delivering his decision, Judge Rice referred to the circumstances leading up to the entry of the pleas of guilty on 5 June 2015 and then continued:
He now seeks to withdraw those pleas of guilty. At the time of and leading up to those pleas of guilty, Mr Simmons had Mr Richards acting for him. I note that for the purposes of this application that Mr Simmons has waived legal professional privilege and Mr Richards’ file has been supplied to and remained in the custody of the court. It is clear from the material provided for the purposes of the hearing of this application that Mr Simmons sought advice from Mr Richards and provided him with certain instructions. It is also clear from Mr Richards’ evidence that he had read the committal papers and a plea, as eventuated, was, in his view, appropriate. He took the view, having regard to all of that material, that it would be prudent and appropriate to advise his client to plead guilty.
The applicant, in essence, advances two grounds upon which he seeks to have these pleas withdrawn. Although the terminology might differ a little bit, basically he says that he was forced into, or directed into, those pleas by Mr Richards. The second basis, in combination with the first, is that he was pressured and/or felt threatened by the man who was the alleged victim and that that contributed to his decision to plead guilty. Mr Simmons gave evidence of those things. He called his father to substantiate the threats that had been made to his father and, indeed, to himself and called Mr Richards to say, supposedly on his case, that he had forced the applicant, or directed the applicant, to plead guilty.
In reaching a decision about this case, I have been guided by the principles referred to in Ms Smith’s outline of submissions but particularly I have been guided by the principles referred to in para 7 of that outline from the case of Hinton v O’Dea and to the High Court authority of Meissner v The Queen referred to in paras 8 and 9 of her outline.
It is clear that the obligation in such an application rests with the applicant, Mr Simmons. I can assure both parties that I have indeed kept an open mind about what is the appropriate course to take. In my view here, the applicant has failed to discharge the onus that rests upon him. I reject his evidence that he was told or instructed to plead guilty by Mr Richards.
I can accept that Mr Richards may have given I think what he referred to as ‘advice in agricultural terms’ or, to adopt my wording, he may have given robust advice, but he did not, in my view, overstep the limits of giving advice with telling the defendant that he had to plead guilty when he had a different view himself as a lawyer about guilt.
I accept that there may have been some measure of pressure from the alleged victim that he wanted his money back and, indeed, that would not be surprising, but that did not affect, in my view, the safety of the plea and was not, in my view, operative so far as any plea of guilty is concerned. It is clear from the documentation supplied during the course of last Friday’s hearing that Mr Simmons appreciated the nature of the charges against him, the strength of the charges against him and he decided, in the exercise of his free choice, to plead guilty.
With respect to the enumerated matters upon which Ms Smith addressed me this afternoon, I accept that there is a strong case against the accused, having reviewed previously, and today, the evidence against Mr Simmons. I accept and find that there was no imprudence in the advice. In my view, there was a plea that flowed from a consciousness of guilt and, finally, there were pleas that flowed from a proper understanding of the legal ingredients of the offences with which Mr Simmons was charged. In my view, as I think I have indicated already, this application has not been made out and it is dismissed.
It is to be noted that the Judge specifically rejected the evidence of the applicant and accepted that of Mr Richards on what was the critical issue. There is no doubt that that course was open to his Honour on the material before him and, having regard to all of the material before us, we in no way disagree with that finding as to credibility.
The application for permission to appeal against conviction before the single Justice on 16 January 2017
We have regard to the transcript of the lengthy submissions of both parties on the permission application on 16 January 2017, at the conclusion of which Doyle J reserved judgment to 19 January 2017. A great deal of material was placed before his Honour and it is clear from the transcript of the submissions and the terms of his judgment that he had regard to all of that material.
The ruling of Justice Doyle
After referring to the entry of the pleas of guilty to the charges on 5 June 2015, his Honour stated:
The applicant subsequently applied to withdraw his pleas of guilty. This application was heard by Judge Rice on 19 and 22 February 2016.
Judge Rice declined the application and so the pleas and convictions remain in place.
In sentencing the defendant more recently Judge Rice described the facts underpinning the offending. It is not necessary, for present purposes, for me to repeat that summary.
The applicant now seeks leave to appeal against his conviction. In order to succeed in this application the applicant must establish that it is reasonably arguable that Judge Rice erred in declining his application to withdraw his pleas of guilty.
The relevant principles governing such an application are well-known and do not require repetition. The principles are set out in Meissner v The Queen (1995) 184 CLR 132 and were recently summarised by me in Tsvalas v The Police [2016] SASC 103 at [15] and [16].
Whilst there are various relevant considerations, the ultimate test remains one of the defendant establishing that the circumstances in which the plea was entered involved a miscarriage of justice.
Those relevant considerations (importantly, none of which are necessarily decisive) include the following:
1. Whether the plea reflects a consciousness of guilt.
2. Whether there is a real question as to the guilt of the defendant.
3. Whether the plea was based upon imprudment or inappropriate advice.
4. Whether the defendant lacked an appreciation of the nature of the charges or the facts alleged against him.
5. Whether the plea was a result of a free choice on the part of the defendant and not the product of his will being overborne by inappropriate pressure or threats.
In dismissing the defendant’s application to withdraw his pleas, Judge Rice referred to the defendant having advanced two grounds for his application. First, he was forced into or directed into those pleas by his then lawyer Mr Richards and, secondly, that in combination with the first matter, he was pressured or felt threatened by a man who was the alleged victim and contributed to his decision to plead guilty.
Over the two-day hearing Judge Rice received documentary evidence and heard oral evidence (including from the defendant, his father (to whom threats were also apparently made) and Mr Richards)). His Honour also heard submissions from Mr Simmons, and Ms Smith for the prosecution.
In relation to the first ground, Judge Rice accepted that Mr Richards gave advice in “agricultural” terms or to use his Honour’s language “robust” terms, but found Mr Richards did not overstep the limits of giving advice.
In relation to the second ground, Judge Rice accepted that there may have been some measure of pressure from the alleged victim that he wanted his money back, but found that this did not affect the safety of the pleas of guilty in the sense that they were not operative so far as the pleas of guilty were concerned.
To the contrary, the Judge held that it was clear from the evidence that the defendant appreciated the nature of the charge against him, the strength of the charges against him and decided, in the exercise of his free choice, to plead guilty.
The Judge also held that in light of the matters put by Ms Smith in her address by way of summary of the intended prosecution case had the matter progressed to trial, there was a strong case against the defendant. The Judge accepted that the advice given by Mr Richards was not imprudent, that the defendant had a proper understanding of the legal ingredients of the offence of which he was charged, and that the plea followed from a consciousness of guilt.
It can be seen from this summary that the Judge addressed each of the relevant considerations that I have mentioned earlier in these reasons. The Judge’s findings were against the defendant in respect of each of those matters. In those circumstances, it was not surprising that the Judge concluded that the application to withdraw the pleas of guilty should be dismissed. Certainly the Judge’s reasons do not disclose error in his Honour’s approach or outcome.
In the applicant’s proposed amended grounds of appeal dated 22 December 2016, supported by a summary of argument dated 19 December 2016, the defendant relies upon four grounds of appeal, expanded upon in the summary of argument.
The first two grounds of appeal relate to the first and second counts, respectively, and raise some six alleged errors of fact. Properly understood they are not allegations that Judge Rice made factual errors but, rather, that the prosecution case, including the statement of Mark Hentschke, upon which the prosecution proposed to rely at trial, was predicated upon errors of fact.
While the matters relied upon by the applicant do raise some potential discrepancies in the detail of the matters that were advanced as supporting the prosecution case, I am not satisfied that the matters relied upon are of sufficient moment or cogency, either individually or collectively, to warrant a conclusion that there was a real question as to the defendant's guilt, let alone that the Judge’s discretion to decline to permit the defendant to withdraw his pleas of guilty miscarried.
For the reasons advanced by Ms Smith, both at first instance and in her submissions before me on this appeal, there was material upon which the charges were able to be sustained. In this context, it must be remembered that on an application such as the present, there is no requirement for the prosecution to establish the guilt of the defendant in the sense of there being evidence upon which the charges have been made good. The basis for the convictions was of course not the evidence, but the pleas of guilty.
In considering whether the pleas might be withdrawn, while the merits of the prosecution case are a relevant consideration, even if there are some real questions about the defendant’s guilt, that is not necessarily determinative of the matter.
In circumstances where, as Judge Rice found, various other considerations pointed towards the appropriateness of upholding the pleas of guilty and consequential convictions, I do not consider that the factual issues relied upon the defendant in his proposed grounds of appeal one and two provide an arguable basis for contending that Judge Rice erred in refusing the defendant permission to withdraw his pleas of guilty.
Proposed ground of appeal No 3 is difficult to understand. It appears to challenge the material relied upon by Mr Richards in giving the robust advice that he gave. Again, in my view, the challenge rather misses the point, or at least, misunderstands the nature of the inquiry on an application to withdraw a plea of guilty.
To the extent the defendant’s challenge goes as far as challenging Judge Rice’s finding that his plea was based upon advice from Mr Richards, as opposed to for example, an instruction or direction from Mr Richards, or challenges the prudence or competence of Mr Richards’s advice, I am not satisfied that there are arguable grounds for success in that challenge.
Finally, in relation to the proposed ground of appeal No 4, the defendant contends that his pleas were the result of harassment and threats by others. The Judge expressly considered and rejected a contention to this effect at first instance. While the judge focused upon the pressure and threats said to have emanated from the victim, Mr Hentschke, I do not think that the material raised before me as to threats from other named individuals advances the matter. I do not think they provide an arguable basis for challenging the judge’s conclusion that the pleas of guilty emanated from the advice given and the consciousness of guilt and an informed and free choice to plead guilty.
For all of these reasons I do not consider that the applicant’s challenge to Judge Rice’s refusal to permit his pleas of guilty is reasonably arguable.
His Honour then formally dismissed the application for permission to appeal.
The process of reference to the Full Court to determine an application for permission to appeal
We briefly refer to the process of reference to the Full Court to determine an application for permission to appeal. The Supreme Court Act 1935, s 48(3) and (4) relevantly provide as follows:
(3)Subject to subsection (4) and to the rules of court, where any Act provides that 1 or more of the following powers relating to appeals are exercisable by the Full Court, the power may, instead, be exercised by any judge of the Supreme Court in the same manner as the Full Court and subject to the same provisions:
(a) the power to give permission to appeal;
…
(4)If a judge refuses an application by an appellant to exercise any power of a kind referred to in subsection (3) in his or her favour, the appellant is entitled to have the application determined by the Full Court.
Rule 120(4) of the Supreme Court Criminal Rules 2014 provides as follows:
(4)Unless the Court otherwise orders, when an application for permission to appeal or for an extension of time to appeal is referred to the Full Court in accordance with this rule, it will be heard at the same time as the merits of the appeal.
The effect of Rule 120(4) is that the default position is that the Full Court will hear both the argument concerning permission to appeal and the argument concerning the merits of the proposed grounds of appeal at the same time. However, that is subject to this Court making a different order. In the present case, this Court at the beginning of the hearing made an order that “this hearing to be held on Friday, 21 April 2017 will be limited to the question of whether permission to appeal should be granted on any of the proposed grounds of appeal”. It is worthwhile setting out why this course was taken here.
In Coulter v The Queen,[2] the High Court had occasion to consider the validity of a previous South Australian leave to appeal regime in which the Rules provided that, following a refusal of leave by the single Justice, an application for the Full Court to consider the application was to be made by written application accompanied by a written summary of argument complying with the requirements of the rules; the Full Court would then determine such application on the papers unless the Court determined to order oral argument.
[2] (1988) 164 CLR 350.
The majority of the High Court found the Rules to be valid. In the course of the majority judgment, Mason CJ, Wilson and Brennan JJ stated:
The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation: Collins v The Queen (1975) 133 CLR 120, at p 122. It is a preliminary procedure recognized by the legislature as a means of enabling the Court to control in some measure the volume of appellate work requiring its attention. Oral argument is a valuable aid to adjudication in some cases but an application may be so patently meritorious or unmeritorious that oral argument would be an unnecessary occupation of the Court’s time. (Emphasis added)
In similar vein, the minority judgment, Deane and Gaudron JJ stated:
The requirement that leave or special leave be obtained before an appeal will lie is a necessary control device in certain areas of the administration of justice (eg appeals to a second appellate court) in this country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before the particular court. It also represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to a second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice. In these circumstances, it is neither surprising nor regrettable that the application for leave or special leave to appeal has, in this country, become a generally accepted and standard part of ordinary curial procedures. In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing. (Emphasis added)
In the present case, the appellate proceedings in this Court involved several preliminary appearances of the applicant before different Justices. The substantial proceedings were heard by Doyle J on 16 and 19 January 2017. These were followed by this Full Court hearing on 21 April 2017 when judgment was reserved.[3]
[3] The Full Court coram was originally Bampton, Parker and Lovell JJ for the original scheduled hearing on 13 April 2017 but on that day the applicant applied for an adjournment and the coram for the re-scheduled hearing on 21 April 2017 was Peek, Parker and Lovell JJ (Bampton J having other previous commitments).
At the time that Coulter was decided in early 1988, there were 15 Justices of the South Australian Supreme Court. In 2017, despite a steady increase of Supreme Court work (particularly in the appellate area) since 1988, there are now only 11 and a half Justices of the South Australian Supreme Court.[4]
[4] Justice Parker was appointed on the basis that his Honour allocates approximately half his judicial time to his duties as Supreme Court Justice and half to his duties as President of SACAT.
More recently, but within the same period during which this unfortunate diminution of the Supreme Court Bench has occurred, there has also been a substantial rise in both the absolute and percentage figures of unrepresented litigants appearing in the Supreme Court. While the judicial expositions concerning the vulnerable position of unrepresented litigants and the substantial duties of the courts toward them are well known, and do not need to be repeated here, it remains permissible to observe that there is another side to the same coin.
Although cynics may assert that lawyers cause complications and delay, the fact is that in almost all trials in which an unrepresented litigant appears the task of the Judge is made much more onerous, and the duration of the trial is significantly lengthened, due to the continual need for the Judge to attempt to explain matters of law and procedure to the unrepresented litigant, and sometimes to adjourn the case on multiple occasions to allow the unrepresented litigant to attend to things that a lawyer would have attended to prior to trial.
Further, and very importantly, a lawyer will almost always perceive the weaknesses of the position of a client far more realistically and clearly than an unrepresented litigant will be able to assess his own position. The present case serves as a rather good illustration. Here, the applicant was clearly advised by Mr Richards’ firm of the very real difficulties he faced. The documents tendered before Judge Rice in exhibit P11 (which comprise part of Mr Richards’ file) reveal comprehensive written analyses by the applicant’s lawyers of the prosecution case and, most importantly, of the applicant’s own various statements (including to the police during his interview and to various of his lawyers). Attention is directed to numerous conflicts between positions taken by the applicant and solid evidence to the contrary; as well as to internal inconsistencies within various statements made by the applicant. Numerous salient questions are raised for consideration by the applicant. There is no doubt that the advice given by Mr Richards to accept the proposal of the prosecution and plead guilty was in the best interest of the applicant.
The applicant did initially take that advice and went on to receive what we consider to be a very merciful disposition by way of a suspended sentence. However, he has also gone on to challenge the decision of Judge Rice in refusing his application to withdraw his plea of guilty and he does not now abide by the later decision of Doyle J that his application for permission to appeal is not reasonably arguable.
Against all of these background circumstances, we revert to the comments concerning unnecessary expenditure of judicial time in the judgments of the High Court in Coulter v The Queen[5] in 1988. That decision, of course, was very nearly 30 years ago and the pressures on judicial time now are very much greater than they were then. It is now ever the more necessary to have a filtering process to minimise the triple expenditure of judicial time spent by three Justices in the Full Court sitting and hearing in full appeals that are clearly hopeless.
[5] (1988) 164 CLR 350.
Of course, one must proceed with great caution. It is no doubt true that cases will be encountered where a litigant asserts a miscarriage of justice but the positive strength of his or her case in that regard may only be divined after a good deal of investigation and consideration; much may depend on the facts of a particular case. However, it is also no doubt true that cases will be encountered where a litigant asserts a miscarriage of justice but the positive weakness, or non-existence, of his or her case in that regard is manifestly apparent to each of the coram of a Full Court which has been tasked to determine an application for permission to appeal, such application having already been refused by a single Justice.
One may add a further factor. The facility (now a requirement) to file an outline of argument well prior to the hearing date can be a very powerful weapon for an applicant or appellant in that the content of the outline may alert the court to a real possibility that the appeal may succeed. However, the other side of the coin is that a consideration of the outlines of both parties (including the authorities referred to) may strongly point to the correctness of the original decision of the trial Judge.
The present case is a good illustration of how these factors may converge in a particular case. Here, such factors included the following. First, Judge Rice gave cogent and comprehensive reasons for his refusal to set aside the pleas of guilty. Secondly, Justice Doyle also gave cogent and comprehensive reasons for his decision to refuse permission to appeal. Thirdly, an independent perusal of the material placed before each of the members of the coram for consideration in preparation for the hearing tended to indicate that there was no reasonably arguable case. Fourthly, the outline of the applicant did not advance the position of the applicant whereas the outline of the respondent contained compelling contentions concerning both the strength of the prosecution case as to guilt of both charges and the weakness (or non-existence) of the applicant’s case for setting aside the pleas of guilty having regard to the relevant authorities to which reference is there properly made.
This combination of factors led this Court to make the above order at the commencement of the hearing. The making of this order in appropriate cases may have the advantage of emphasising the distinction between permission to appeal and argument of an appeal in full and may significantly shorten the argument. If the distinction is made patent, it may be adhered to by an unrepresented litigant as well as by a lawyer.
Finally, it may be observed that when such an order is made, the task of the Full Court will usually remain congruent with the task already performed by the single Justice. While an application of the present type is in no way an appeal against the decision of the single Justice, and this Court must itself determine the application, that is not to say that this Court cannot have regard to the reasons of the single Justice. In some cases where this Court itself determines that the application is not reasonably arguable, the Court may find itself in full agreement with the reasons of the single Justice and be of the view that it would be both pointless and time wasting to attempt to improve upon them. In such circumstances it is not inappropriate for this Court to adopt the reasons of the single Justice.
Disposition of the application
We have had regard to the relevant authorities including those of: Meissner v The Queen;[6] R v Pugh;[7] R v Stewart;[8] R v Brooks;[9] R v Dorning;[10] and R v Kikidis[11] and all of the material before us. Since the applicant was unrepresented the Court was prepared to have regard to a range of material advanced by him that would be broader than that usually permitted. This Court determines that the application for permission to appeal is not reasonably arguable and finds itself in full agreement with the reasons of Doyle J which are extracted above at [34]. It would be both pointless and time wasting to attempt to improve upon them. Accordingly, we adopt them.
[6] (1985) 184 CLR 132.
[7] (2005) 158 A Crim R 302.
[8] [2010] SASCFC 72.
[9] (2007) 96 SASR 478.
[10] (1981) 27 SASR 481.
[11] (2012) 112 SASR 148.
The order of the Court is that the application for permission to appeal is dismissed.
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