R v Small (No.1)
[2009] QDC 319
•1 September 2009 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Small (No.1) [2009] QDC 319
PARTIES:
R
V
JUSTIN GARY SMALL
FILE NO/S:
Indictment No. 1918 of 2009
DIVISION:
Trial
PROCEEDING:
Application to direct the entry of a plea of not guilty
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
1 September 2009 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
31 August 2009
JUDGE:
Irwin DCJ
ORDER:
I direct a plea of not guilty be entered.
CATCHWORDS:
CRIMINAL LAW – Pleas – application to change – whether miscarriage of justice
Boag (1994) 73 A Crim R 35, cited
Borsa v R [2003] WASCA 254, cited
Harman v Ayling, unreported, S Ct of WA; Library No. 960 486; 26 August 1996, cited
Liberti (1991) 55 A Crim R 128, cited
Meissner v The Queen (1995) 184 CLR 132, cited
R v Carkett [2008] QCA 143, applied
R v GV [2006] QCA 394, distinguished
R v Hardy [2009] QDC 142, applied
R v Hura (2001) 121 A Crim R 472, cited
R v McGuire & Porter (No. 2) [2000] QCA 40, cited
R v Moxam [2000] QSC 152, applied
R v Mundraby [2004] QCA 493, applied
R v Popovic [1964] Qd R 561, cited
R v Toro-Martinez (2000) 114 A Crim R 533, cited
COUNSEL:
M.R. Byrne for the Crown
A.C. Smith for the defendant
SOLICITORS:
Director of Public Prosecutions (Queensland) for the Crown
Richard Gray and Associates for the defendant
Justin Gary Small is charged with three offences that are alleged to have occurred on 26 January 2009 at Brisbane.
Count 1 alleges that he unlawfully assaulted Ms H and did her bodily harm and that he was armed with an offensive weapon. Count 2 alleges that he unlawfully and indecently assaulted Ms Y, and Count 3 alleges that he wilfully and unlawfully damaged a motor vehicle.
He was arraigned on this indictment for the first time at the commencement of the trial before me yesterday. At this time, he pleaded not guilty to Counts 1 and 2, that is to say, the charges of assault occasioning bodily harm whilst armed and sexual assault, but he entered a plea of guilty to the charge of wilful damage. A jury was then empanelled.
Mr Smith of counsel, who appears for the accused, made an application following the empanelment and before the opening of the Crown case for this Court to exercise its discretionary power to direct the entry of a plea of not guilty notwithstanding that the accused had pleaded guilty when arraigned before me.
As Mullins J observed in R v Moxam [2000] QSC 12 the existence of this power was recognised in R v Popovic [1964] 1 Qd R 561, and the test to be applied is whether letting the plea stand would produce a miscarriage of justice: Boag (1994) 73 A Crim R 35; Meissner v The Queen (1995) 184 CLR 132, 157; R v McGuire & Porter (No. 2) [2000] QCA 40 at [32] and [74]; R v Carkett [2008] QCA 143 at [22]‑[26].
It is not in issue on this application that the accused has the onus of proving on the balance of probabilities that he should be permitted to change his plea, that is, to show that a miscarriage of justice has occurred or would occur if he is not allowed to withdraw his plea.
To place this application in context, after the jury was empanelled, I advised them at about 10.17 a.m. that they could separate because I was attending a funeral in the morning and this would be followed by legal argument, which would occupy the balance of the day. When I resumed Court at 2.03 p.m. Mr Smith sought to vacate the plea, explaining to me the reasons in support of the application.
He had said to me after the empanelment of the jury and before I adjourned the Court at 10.23 a.m. that he had not had much of an opportunity to discuss the matter with his client, who had arrived from North Queensland. He said that he had literally had about five minutes to discuss the matter with his client before Court had commenced.
Mr Smith’s submission in support of this application was in these terms, as appears from the transcript 1-7, “My client when he entered that plea the wilful damage charge, did not have a consciousness of guilt … and on my instructions he never turned his mind – there was no deliberate wilful act to, as it were, pop the windscreen or the window. My instructions are that he certainly concedes and he always conceded throwing the bat towards the complainant, but, effectively, said his instructions are that it might have been damaged as a result of that but he had not adverted his mind to actually doing that.”
Mr Smith continued at transcript 1-10, “On the facts that I have now been instructed and consistent with, effectively, consistent with what he has already said to the police he has never adverted his mind to damaging an item of property such as the driver side window of the car. I had had five minutes discussion with him outside the Court prior to that in which I understood he was going to plead not guilty to the charges although it is fair to say – and I think I can say this, your Honour – that he indicated to me then that it might have occurred in the course of throwing the bat having got the bat off her and throwing it back and leaving the scene. It is possible but he doesn’t know. It is possible that action may have caused damage to the windscreen but he never turned his mind to that and this isn’t just merely reckless indifference he did never think, ‘Well, if I do this, even recklessly, it could smash the screen.’ We’re not even at that point, we’re at a point where merely he is throwing the bat away, getting out of the scene and cannot say that that action, in fact, caused the windscreen to break but thinks that might be the only explanation why it did break.”
Mr Smith, particularly, relied on the case of Carkett to which I have referred at paragraphs [24] and [25], with reference to which he said at transcript 1‑11, “But effectively at 25 of the decision the Court of Appeal went on to point out the three well-recognised circumstances in which a plea of guilty will be set aside being where the applicant did not understand the nature of the charge or did not intend to admit guilt, that is, the consciousness of guilt aspect on the admitted facts an applicant could not, in law, be guilty of the offence – and I think the last one is not relevant, the plea being obtained improperly. Those first two, in my submission, are relevant in that there is no evidence before the Court other than the fact of the broken window and the assertion by the Crown witness – I think it is [H] – that my client broke the windscreen, that is, the window rather. That is the only evidence before the Court.”
As will become apparent, the reference to a conviction being set aside if it did not otherwise reflect consciousness of guilt is, in fact, made in paragraph [26] and I will return to this point.
Mr Byrne, who appears to prosecute, submits that any propositions derived from Carkett that the categories to which Mr Smith referred are exhaustive, cannot stand against the decision of the High Court of Australia in Meissner. He submitted that I should be loath to accede to the application, which is made in circumstances where the plea was entered by an adult who was charged in mid‑February, committed for trial on 24 June 2009, and it was indicated after some hesitation and some degree of thought against the background of two pleas of not guilty to the other charges.
For completeness, I note that the accused was charged on 18 February 2009. Mr Byrne emphasised that there was no prerequisite that the plea has to be entered for reason of consciousness of guilt. He submitted that a lack of consciousness of guilt is only one factor to consider. He suggested that the other categories in Carkett did not apply in this case.
Mr Smith referred me to a number of other authorities that I have read and some of which I will discuss in the course of this decision.
After taking instructions, Mr Smith advised that he would not seek to call the accused as a witness on the application but rely on the submission and the other materials before me such as witness statements, the record of interview with his client and the committal transcript. Therefore, there is no oral or affidavit evidence placed before me in support of this application.
On the basis of the material, the Crown case is that H and Y met the accused in the early hours of 26 January 2009 in a street at West End in Brisbane. He accepted an invitation to travel with them to H’s home to have a drink.
Later at that house, he and H had consensual sex for a few minutes before she told him to stop. He did this and walked out of her room. He then walked into the room where Y was sleeping and lay on top of her over the sheets and suggested they have sex. She told him to get off which he did. This is the basis of the sexual assault charge.
He returned to H’s room and lay on top of her. She again told him to get off and get out of her house. He verbally abused her. She grabbed the piece of wood, which has been variously described as a bat or a pick handle, and followed him as he walked to the doorway.
He turned and grabbed the wood and pulled it away from her, causing her to fall. He then struck her about six times with it, causing pain, swelling, bruises and welts. This is the basis of the charge of assault occasioning bodily harm.
H says that she saw him walk over to her car which was parked in the street and to smash the driver’s side window with the piece of wood, after which he dropped it and ran. This is the basis of the wilful damage charge.
Y, in addition to giving evidence about what occurred in the room where she was sleeping, said that she heard strikes on flesh and breaking glass but did not witness these incidents. Shortly afterwards, she found H lying on the road.
The accused, when interviewed about these matters, said that he commenced to leave the house after H told him to. He walked out into the street and H followed him. It was in the street that she hit him on a number of occasions with the piece of wood which, as I have said, has sometimes been described as a bat or a baseball bat.
He was able to take the wood from her and hit her on two occasions about the legs. On some occasions in the interview he mentioned that he was defending himself against her.
In relation to the incident involving Y, he said that H had told him to go into Y’s room after they had completed their act of sexual intercourse. He went into the room and lay on the bed beside her and placed one arm over her and spoke to her, saying words to the effect that H had sent him into the bedroom.
She indicated to him that she wasn’t interested in any sexual activity and he got up and left and went to H’s room again, after which the events occurred which led him to leave the house.
The accused was asked about the wilful damage allegation on a number of occasions in the record of interview which was held on 5 February 2009, 10 days after the incident.
During argument, I have been specifically referred to pages 48 and 49. At the bottom of page 48, Constable Bakker reads a portion of H’s statement to the accused, which includes the allegation that he smashed the driver’s side window with the piece of wood and then dropped the piece of wood and started running down the street.
The accused replied, “No, I – I have – didn’t touch her car with the wood. Um – after her hitting me and me throwing the wood on the ground I turned around and ran. That is what I did.” He was asked, “Was there any damage to the car at all?” and he responded, “Not when I’d left.” He also said, “I didn’t touch her – her car with it. The last thing I did was throw the wood back at her on the ground and that is when I turned around by that time. I started to run down the road before.”
I was also referred to page 89 of the two‑hour record of interview, where he said, “All I did was threw the bat back down at her, turn around and ran.” He was asked, “Did you hear breaking glass at any stage?” and he responded in the negative. Therefore he denied touching her car and said there was no damage to her car when he left. There are a number of other passages about the damage to the vehicle and any knowledge he had of it in the record of interview.
For example, at page 53, he was asked, “But you don’t agree that you smashed the driver’s side window?” He responded, “I never. I didn’t.” At page 9, he said he threw the bat and ran down the road. At page 20 he also said, “I swung the next one and let the bat go and turned around and ran.”
At page 35, he said he threw the stick to the ground – “It was just thrown on to the roadway.” At page 38, he said that he threw the baton down. At page 48, he said, “It hit the cement or bitumen.” At page 51, he said that he threw it at her on the ground. He did not try to hit her directly. He repeated that he threw it at the ground. And at page 32, he said it hit the road.
After he had been charged, he saw Constable Bakker some days later and said that perhaps the aluminium baseball bat could have bounced from the bitumen when he threw it down and bounced back up to smash the car window. This was a purely speculative observation and I do not regard it an admission by him that this, in fact, happened.
At the committal proceedings on 24 June 2009, when he was represented by Mr Gray of his current firm of solicitors, not only was H’s statement tendered, but she was cross‑examined about the alleged wilful damage incident. At page 1-16 of the transcript of the committal, she told Mr Gray, “After he beat me and smashed my window and the door of the car he dropped it and then ran down the street.”
Mr Gray asked her, “And you say you actually saw him smash the car or-----”. She interjected by saying, “Absolutely.” Mr Gray went on to finish the question by saying, “-----smash the window” and she replied, “Yes.”
Accordingly it must have been clear to the accused when he attended Court yesterday that what was alleged against him is that while he held the piece of wood, however it be described, he smashed the window of her car and then dropped it and ran.
This would have been the situation when he was arraigned on the wilful damage charge yesterday. I was looking directly at him at the time. When the charge was read to him, he hesitated for a short time as if thinking about the proposition and then responded with the word “Guilty”. This was a plea that Mr Smith has said took him by surprise and it is the plea which is now sought to be vacated.
With reference to Meissner, there are two passages which are regularly cited in Queensland decisions. The first is from the joint judgment of Brennan, Toohey and McHugh JJ at page 141 as follows:
“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does not act on such a plea even if the person entering it is not in truth guilty of the offence.”
The second passage is from the judgment of Dawson J, whose dissent as to the outcome does not affect the following statement of principle at page 157:
“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. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or fraud.”
In Carkett, at paragraph [22], Fraser JA, with whom Keane and Holmes JJA agreed, said about the passage of the joint judgment in Meissner:
“It is usually very difficult for an appellant to establish any miscarriage of justice in a conviction consequent upon the appellant’s plea of guilty.”
He also stated in paragraph [23], “That passage occurs in the course of a discussion about the question whether conduct designed to intimidate an accused person to plead guilty necessarily constitutes an attempt by the intimidator to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged. The Court was not there considering the issue that arises in this case which is whether or not a person who had entered a plea of guilty in the exercise of a free choice nevertheless might establish that the conviction later should be set aside on the basis that it constituted a miscarriage of justice.”
At paragraph [24] his Honour said, “When a person of full age and apparently sound mind and understanding enters a plea of guilty in open Court in the exercise of a free choice, the circumstances in which that person might establish a miscarriage of justice resulting from a plea must be rare indeed. As the above quote from Meissner indicates, it is not sufficient to point to evidence that establishes that the person is in truth not guilty of the offence.”
His Honour then cited the following passage from Borsa v R [2003] WASCA 254 at paragraph [20], “It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances. Before an appellate Court will set aside a conviction of that kind, the appellant must show there has been a miscarriage of justice. In Harman, Parker J, at 5, after acknowledging that the circumstances which will amount to a miscarriage of justice can never be exhaustively identified, said that there were three well-recognised circumstances in which a plea of guilty will be set aside. The first is when the appellant did not understand the nature of the charge or did not intend to admit guilt; the second is if, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; the third is where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.”
The categories that Mr Smith has referred to in his argument in support of this application appear to have been derived from that passage. I have not, in quoting the passage, cited the case references in support of the various propositions but I note that the reference to Harman is to Harman v Ayling, an unreported decision of the Supreme Court of Western Australia in 1996. I also note that the third category of whether the guilty plea was obtained by an improper inducement, fraud or intimidation and the like is stated with reference to the decision in Meissner.
The issue in Carkett was whether to set aside the applicant’s plea of guilty in circumstances where the Crown, on appeal, conceded that the applicant was not the perpetrator of the offence because another person had subsequently pleaded guilty to it based on the same facts.
Fraser JA said at paragraph [26] of the decision, “This proposed appeal does not fall within one of those three categories of cases, but as is mentioned in that passage those categories cannot be regarded as exhausting the jurisdiction. The cases concerning the question whether a conviction may be set aside on the basis of evidence to the effect that the plea of guilty was not in fact a free and voluntary plea or otherwise did not reflect a consciousness of guilt cannot be regarded as comprehending all possible examples of a miscarriage of justice where the conviction was referrable to a voluntary plea of guilty of an offence known to law.”
The proposition that a basis for setting aside a conviction is that it did not reflect a consciousness of guilt, is with reference to R v Toro-Martinez (2000) 114 A Crim R 533 at 537-538, a decision of the New South Wales Court of Criminal Appeal.
Therefore, in my view, the Queensland Court of Appeal in Carkett identified that Meissner was concerned with a different issue and concluded that in determining whether there has been a miscarriage of justice justifying the setting aside of a plea of guilty, the Court is entitled to consider whether it reflects a consciousness of guilt.
In R v Mundraby [2004] QCA 493, McPherson JA, with whom Jerrard JA and Mackenzie J agreed, took a similar view at paragraph [11] when he said, “No doubt the circumstances capable of amounting to a miscarriage of justice in this context are not to be restricted or circumscribed; but it has been held that they must be such as to indicate that the plea of guilty is regarded as a full confession in open court after being formally arraigned or charged with the offence. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently sound mind and understanding provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.”
I have again omitted the case references. The cases cited in support of the proposition that it had been held that the circumstances must be such as to indicate that the plea of guilty was not really attributable to a genuine consciousness of guilt are R v Murphy [1965] VR 187 and Boag.
The way in which this passage is expressed suggests that McPherson JA considered that this proposition is not incompatible with Meissner. He added at paragraph [12]:
“To say that a plea of guilty will be set aside when it is shown that it is ‘not really attributable to a genuine consciousness of guilt’ is to place on the applicant the onus of proving a negative which in practice, can only be discharged by establishing that something other than a consciousness of guilt impelled or induced him to enter that plea; that is to say, by showing some other reason enabling it to be said that the plea is not attributable.”
This is supported by a reference to R v Murphy.
I note that Jerrard JA did observe that there was a difficulty in reconciling this being a circumstance identifying a miscarriage of justice which justifies setting aside a plea with the joint judgment in Meissner. Nonetheless, as his judgment demonstrates, this is a view taken by the New South Wales Court of Appeal in R v Hura [2001] 121 A Crim R 472 at 478. Jerrard JA concluded that Mr Mundraby did not establish that his plea was not really attributable to a genuine consciousness of guilt.
In Mundraby, there is also a reference to what was said by Kirby P in R v Liberti (1991) 55 A Crim R 120 at 121-122 that, notwithstanding a plea of guilty, an appeal would be allowed if it appeared (a) that the appellant did not appreciate the nature of the charge or did not intend to submit that he was guilty of it; or (b) that upon the admitted facts, could not in law have been convicted of the offence charged.
As Mullins J said in R v Moxam [2000] QSC 152 at paragraphs [13] and [14], “Although the authorities exemplify the circumstances in which the requisite miscarriage of justice is likely to be found to enable a change of plea, they are not intended to confine the factual matters relevant to determining whether a miscarriage of justice would occur if the plea were not allowed to be changed. It is convenient when the facts fall within one of the recognised categories for establishing a miscarriage of justice. The existence of those recognised categories does not preclude an accused from establishing the miscarriage of justice by reference to all the facts which have a bearing on the circumstances of the plea and the subject charge. As quoted in Boag, ‘There must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’.”
In that case, her Honour set aside the plea because she was satisfied that the guilty plea at committal was not attributable to a genuine consciousness of guilt. She was also satisfied that there was no consciousness of guilt which dictated his actions after committal which included entering a guilty plea in the Supreme Court.
Her Honour concluded at paragraph [51], “This was not a straightforward application as it did not fit easily into one of the usual categories. On balance, however, there would be a miscarriage of justice if the accused were not allowed to change his plea”, and she therefore directed that a plea of not guilty be entered.
I’ve also been referred to R v Hardy [2009] QDC 142 where Judge Samios said at page 17, “I doubt, based on Jerrard JA’s judgment, that it is not a miscarriage of justice to plead guilty when innocent.” This is a reference to Jerrard JA’s judgment in Mundraby. In that case, Judge Samios was satisfied that when the accused pleaded guilty, it was not a free and voluntary confession, nor was the plea attributable to a genuine consciousness of guilt.
For completeness, I note that R v GV [2006] QCA 394 is really a case about whether the sentencing judge should have exercised his discretion to direct a plea of not guilty being entered when the facts presented raised a complete defence to the charge. I do not regard that case as relevant here.
The authorities indicate that what will be sufficient to discharge the onus will depend on the facts of each case but that it is not contrary to Meissner to vacate a plea of guilty in circumstances in which a court is satisfied that it is not attributable to a genuine consciousness of guilt or, as McPherson JA put it in Mundraby at paragraph [12], if the defendant can establish “that something other than a consciousness of guilt impelled or induced him to enter the plea; that is to say, by showing some other reason enabling it to be said that the plea was not so attributable.”
In this case, it can be said that the accused must have clearly appreciated that the prosecution case is that he committed the wilful damage by smashing the window of the motor vehicle while holding the piece of wood and only dropped it after this, when making his decision to enter a plea of guilty yesterday.
This is a suggestion of deliberate or intentionally causing the damage rather than recklessly causing the damage. He would have known this because it was clearly put to him in the record of interview and evidence was given to this effect by H in the committal proceedings more recently.
However, in the record of interview he consistently denied this, saying that he threw the wood away at the ground. He denied damaging the car and said there was no damage to it when he left the area.
Consistently with this, Mr Smith says that up until five minutes before the trial commenced the accused indicated that it might have occurred in throwing the wood as he left but he did not know, it was something which is possible and to which he never adverted. This is in similarly speculative terms as what the accused is alleged to have said to Constable Bakker after he had been charged about the possibility of the object bouncing form the bitumen to smash the window.
This position is contrary to his having an actual intention to smash the window for the purpose of the element of the charge of wilful damage which requires the Crown to prove beyond reasonable doubt that the damage was, in fact, wilful.
In my view, it is also contrary to the alternative basis on which wilfulness can be established, which requires the accused to have done an act, aware at the time that he did it, that smashing of the car window was a likely consequence. This is because his instructions have been that he has simply not adverted to this.
Although there is no sworn evidence before me on this point, I have no reason to reject what Mr Smith of counsel, an officer of this Court, has said about his instructions. Mr Smith also says that he was only briefed on Thursday. His client has come from North Queensland and, except for literally five minutes before the trial, he did not have an opportunity to speak to him prior to his being arraigned.
Mr Smith’s instructing solicitor is also from a Brisbane law firm. He has not taken any steps to make a pre-trial application under s 590AA of the Criminal Code for the exclusion of the record of interview, with the result that this application is to be made before me during the trial.
In these circumstances, I do not consider that the accused has had the opportunity to have explained to him by his legal representatives the legal implications of the element of wilfulness for the purpose of the wilful damage charge.
In this case, having regard to the propositions advanced by Mr Byrne, it can be said that this was a plea entered in open court by a person who was of full age in the exercise of a free choice. It can also be said that he understood the nature of the charge and intended to admit his guilt. It is not a case where on the admitted facts, that is on the facts alleged by the Crown on the basis of H’s statement and testimony at the committal proceedings, the accused could not in law be guilty of the offence and it was not obtained by improper inducement or intimidation.
While it may be very rare for a person pleading guilty to establish a miscarriage of justice arising from a plea of guilty in these circumstances and it is not sufficient to point to evidence that the person is, in fact, not guilty of the offence, as the cases since Meissner indicate, this is not impossible. This is because the categories for establishing miscarriage of justice in these circumstances are not closed. This, in fact, was recognised by Dawson J in the passage that I have previously quoted from Meissner at 157. As part of that passage, his Honour said, with reference to what must be shown to establish that a miscarriage of justice has occurred, “Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence but the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.”
One of the ways in which an accused may prove that a miscarriage of justice has occurred is to establish some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt.
Despite what has been submitted by Mr Byrne, in circumstances where, from 5 February 2009 in the record of interview to shortly before the accused was called on to plead on 31 August 2009, the accused has consistently maintained an account which is a denial that he wilfully damaged the window, whether intentionally or recklessly, in the sense that he did not advert to any consequences of throwing the piece of wood away, and where I do not consider that he has received legal advice about what is required to be established to prove the requisite element of wilfulness in the charge, I am satisfied that his plea of guilty was solely in recognition that he may have been responsible for the damage and not to be attributable to a genuine consciousness of guilt in the sense of wilfully causing that damage.
I am satisfied that the plea of guilty, upon arraignment, was as a result of his perception that, because it was possible that his action of throwing the wood away may have damaged the car window, this was a sufficient basis for him to be guilty of the offence. Such a perception would be incorrect.
I am therefore satisfied that there was no consciousness of guilt which dictated his plea of guilty on this charge and therefore to adapt what Mullins J said at paragraph [51] in Moxam, this was not a straightforward application as it did not fit easily into one of the usual categories. On balance, however, there would be a miscarriage of justice if the accused were not allowed to change his plea of guilty.
I therefore direct that a plea of not guilty be entered.
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