R v Stevens - [2011] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEVENS
[2011] SASC 69
Reasons for Ruling of The Honourable Justice Kelly
29 April 2011
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Applicant entered plea of guilty on morning of trial – applicant later dismissed counsel and made an application to withdraw his guilty plea – consideration of the principles governing the exercise of discretion to withdraw a guilty plea.
Held: applicant understood factual and legal issues on which he entered plea of guilty – no miscarriage of justice – application refused.
R v Pugh (2005) 158 A Crim R 302; R v Hura (2001) 121 A Crim R 472; R v Liberti (1991) 55 A Crim R 120, discussed.
R v Brooks (2007) 96 SASR 478; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Chiron [1980] 1 NSWLR 218; R v Murphy [1965] VR 187; R v Sagiv (1986) 22 A Crim R 73; R v Cincotta (unreported, Court of Criminal Appeal, NSW, Hunt CJ, Grove and Allen JJ, 1 November 1995); Maxwell v The Queen (1995) 184 CLR 501; R v Davies (1993) 19 MVR 481; R v Ganderton (unreported, Court of Criminal Appeal, NSW, Sully, Sperling and James JJ, 17 September 1998); R v Favero [1999] NSWCCA 320, considered.

R v STEVENS
[2011] SASC 69
Criminal:
KELLY J.

The applicant Warren Craig Stevens was charged with the attempted murder of Robert Staehr. He was also charged in the alternative with causing serious harm with intent to cause serious harm to Mr Staehr.
On the morning his trial was due to commence the applicant entered a plea of guilty to the charge of aggravated causing serious harm with intent to cause serious harm and the Director of Public Prosecutions then entered a nolle prosequi on the attempted murder charge.
After the allocutus was read the applicant’s then counsel, Mr Healy, requested a six week adjournment in order to obtain medical and other reports and to present submissions on sentence. The applicant was then remanded in custody until 7 December 2010 for further consideration.
On 29 November 2010 the matter was listed at the request of Mr Healy who indicated in his client’s absence that he would not be able to obtain a presentence report by 7 December but would be able to do so by 15 December. He requested an adjournment accordingly. The matter was then adjourned until 21 December 2010 for submissions.
On Friday 17 December 2010 the matter was again called on and Mr Healy advised that both he and his instructing solicitor, Mr Dibden had ceased to act for the applicant in light of the fact that their instructions had been formally withdrawn by him.
On that day the applicant who was thereafter unrepresented said:
Well, firstly I would like to say that I very much like Tim Dibden and Nicholas Healy and unfortunately, although I have a social connection with them, I was ready and I thought my barrister then was going to be ready one year ago for trial. Unfortunately the prosecution, adjournment after adjournment after adjournment, I’ve been sitting waiting for a trial and Nicholas Healy was the only barrister to be available and under duress I felt compelled to plead guilty to the lesser charge of causing serious injury with intent to have the attempted murder charge dropped. I really did feel pressured into it and I went into shock pretty much as soon as I was told I had one hour and 10 minutes to make a decision on whether I wanted to go to trial and I may not have any legal representation.
The matter was then adjourned to enable the applicant to seek legal advice in relation to his proposed application to withdraw the plea of guilty.
On 24 January 2011 the applicant’s current solicitor Ms Demertzis appeared on behalf of the applicant and advised the Court that there would be a formal application to strike out the applicant’s plea.
In due course that occurred. The application is supported by an affidavit of the applicant sworn on 11 February 2011 and an affidavit of Karen Marie Olsson sworn on 30 March 2011. The prosecution opposed the application and tendered affidavits from the applicant’s former solicitor Timothy Dibden sworn on 30 March 2011 and his former counsel Nicholas Healy sworn on 17 March 2011. Annexed to the affidavit of Mr Healy was a statement signed by the applicant containing his instructions to his counsel and solicitor to enter a plea of guilty to the charge of causing serious harm with intent to cause serious harm. That document bears the date Monday 8 November 2010.
The Instructions of 8 November 2010
The document signed by the applicant is a detailed one. In it the applicant acknowledges that:
·He has been charged with a count of attempted murder and the alternative of causing serious harm with intent to cause serious harm to Mr Staehr.
·The Director of Public Prosecutions offer to enter a nolle prosequi on the major charge of attempted murder conditional on the applicant pleading guilty to the alternative charge.
·At the time of the incident giving rise to the charges he was intoxicated. (The document sets out the result of a toxicology test on a sample of blood taken from the applicant at about 8 pm, some five hours after the alleged incident.)
·He is aware of the contents of Mr Staehr’s (the victim) statement and of the important features of that statement which are set out in the document.
The applicant then acknowledges in summary form the content of his previous instructions to his lawyers about his version of the events giving rise to the charges. There follows a summary of the important features of nine independent witness statements. Those statements are important as they are from independent witnesses who observed the course of events in which the applicant was involved and they are, in important respects, in conflict with the applicant’s instructions to his lawyers about what happened. The document concludes with a statement which is important in the context of this application. It is set out below:
I recognize that the versions of events as described by the independent witnesses above conflicts with my instructions. Furthermore I am also aware that given my level of intoxication at the time I may have been confused with events as they transpired. The Crowns case that there were two separate incidents, the first involving Robert punching me and the second with me alighting from the vehicle with a knife in my hand would likely be accepted by a Jury given the independence of the civilian witnesses and the detail they describe.
To that end I have instructed my counsel Nicholas Healy that I wish to accept the offer put by the DPP and enter a plea of guilty to the alternative charge of causing serious harm with intention to cause serious harm. I am aware in doing so I forgo my opportunity to put my side of the story before the court, or indeed be found innocent of both offences as charged. I am aware that should I maintain my plea of not guilty there is a risk that I will be convicted of attempted murder. If I was to be acquitted of attempted murder based on my counsel’s advice I believe there would be a good chance of being found guilty of the alternative charge. If that were the case I would not be entitled to any discount for an early plea of guilty.
I have been fully advised of all my options and the risks attached to each by my counsel and solicitor. I have given careful thought to their advice and instruct that I wish to enter a plea of guilty to the charge of Cause Serious Harm with Intent to Cause Serious Harm.
I mention two other features about the document now which are important in the context of this application. The document is signed and witnessed on each page. There is an amendment at page three in handwriting and initialled by the applicant.
The applicant, Mr Dibden, and Mr Healy each gave evidence and were cross‑examined on the contents of their affidavits.
The Relevant Principles
Before turning to the evidence it is useful to remind myself of the principles which govern an application by a convicted person to set aside a plea of guilty. The relevant principles were discussed by the Full Court in R v Pugh[1] and R v Brooks.[2]
[1] R v Pugh (2005) 158 A Crim R 302.
[2] R v Brooks (2007) 96 SASR 478.
The important issue on an application of this nature is whether there has been a miscarriage of justice.
Some of the circumstances in which a miscarriage of justice has occurred were summarised by Spigelman CJ in R v Hura:[3]
·where the appellant “did not appreciate the nature of the charge to which the plea was entered”;[4]
·where the plea was not “a free and voluntary confession”;[5]
·the “plea was not really attributable to a genuine consciousness of guilt”;[6]
·where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt";[7]
·where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt";[8]
·the "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt";[9]
·if "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt".[10]
[3]    R v Hura (2001) 121 A Crim R 472 at 478.
[4]    R v Ferrer-Esis (1991) 55 A Crim R 231 at 233.
[5]    R v Chiron [1980] 1 NSWLR 218 at 220 D - E.
[6]    R v Murphy [1965] VR 187 at 191.
[7]    R v Sagiv (1986) 22 A Crim R 73 at 80.
[8]    R v Cincotta (unreported, Court of Criminal Appeal, NSW, Hunt CJ, Grove and Allen JJ, 1 November 1995).
[9]    Maxwell v The Queen (1995) 184 CLR 501 at 511; 186 - 187.
[10] R v Davies (1993) 19 MVR 481; see also R v Ganderton (unreported, Court of Criminal Appeal, NSW, Sully, Sperling and James JJ, 17 September 1998) and R v Favero [1999] NSWCCA 320.
In R v Liberti[11] Kirby P said:
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; Sagiv (1986) 22 A Crim R 73 at 81.
[11] R v Liberti (1991) 55 A Crim R 120 at 122.
In Pugh[12] Doyle CJ summarised the principles in this way:
[12] R v Pugh (2005) 158 A Crim R 302 at [32] – [33] and [35] - [40].
The powers of the Court are found in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The relevant part of that provision is the power of the Court to allow the appeal if there has been a miscarriage of justice.
Early case law, reflecting a formalistic approach, is reflected in the following often cited passage from R v Forde [1923] 2 KB 400 at 403:
A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged. (footnotes omitted)
Later cases emphasise that the issue is whether there has been a miscarriage of justice, and while the principles stated in Forde will cover many cases, those principles are not to be substituted for the statutory jurisdiction: see R v Murphy [1965] VR 187 at 188 Herring CJ and Adam J, at 190 Sholl J; Meissner at 141-142; 313-314 Brennan, Toohey, McHugh JJ and at 157; 327 Dawson J.
…
There are four matters of particular relevance to this case that need to be borne in mind.
The first is that a plea of guilty is an admission by the accused of all of the elements of the offence: Maxwell at 510; 185-186, Dawson and McHugh JJ.
The second is contained in the following observations by Brennan, Toohey and McHugh JJ in Meissner at 141; 313:
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 exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."
(Footnotes omitted.) See also Deane J at 148-149; 319-320.
The third is contained in the observations made by Dawson J in Meissner at 157; 326-327 that are set out earlier in these reasons. That is, a person may plead guilty, and be held to that plea, although the plea is made "upon grounds that extend beyond that person's belief in his guilt".
The fourth matter is that the passage from Wilkes on which Mr Whitington relies (it is set out earlier in these reasons) identifies considerations that were considered appropriate to the circumstances of that case, that is, an appeal against a conviction arising from a plea of guilty based on the advice of counsel as to the prospects of successfully defending a charge. But those considerations are not definitive and exhaustive criteria for cases of this kind. In R v Hura (2001) 121 A Crim R 472 at [33]-[34] Spigelman CJ lists a number of circumstances that have been identified by the Court of Criminal Appeal of New South Wales as providing a basis for the Court to set a conviction aside. They are not limited to the circumstances identified in Wilkes.
I respectfully agree with Hulme J (dissenting) in R v KCH (2001) 124 A Crim R 233 that the ultimate test is whether there has been a miscarriage of justice, and that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside: at [163]. The presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive.
With these principles in mind I turn to examine the evidence about the circumstances in which the present application was made.
The Evidence
The applicant has, in effect, claimed that he was directed by his lawyers to enter a plea of guilty against his expressed wish to proceed to trial. When he was asked about the instructions he signed on 8 November 2010 he said he did not read the document, in fact he refused to read the document even though both his lawyers advised him of the importance of reading the document right through. He said he was mentally not in a position to do anything that day as he was very upset and emotional at the time. He denied that he was ever given a summary of the prosecution evidence prior to 8 November 2010 and says that 8 November 2010 was the first time he saw the document which he later signed.
In examination in chief the applicant said that the first time he had met Mr Healy to discuss the charges was on 8 November 2010. Later he conceded that he had met Mr Healy and Mr Dibden prior to that date but there was only chit-chat about social matters and they discussed tips for the Melbourne Cup. He agreed that his friend Ms Karen Olsson attended for at least part of the meeting on 8 November 2010. She was there as a friend and for no other purpose. The applicant maintained that he had spent not much more than an hour with both Mr Healy and Mr Dibden on 8 November. He said the first time he saw the document, which he signed later that day, was when he came back from lunch and the document had been prepared for his signature. He said he signed it under duress. He did not understand the charge of causing serious harm with intent or the severity of it. He said he could not get an answer from his counsel about what sort of penalty was involved:
QWhat did you understand would happen if you were to plead guilty to that particular charge.
AI had absolutely no idea. I was trying to find out what sort of penalty, but Mr Healy, he inferred that I might get off with something as little as some home detention and a suspended sentence. But he really – I felt that he was avoiding being clear with me with what the penalty could be for that. So I didn’t have much idea at all. The only thing clear I got from him was the words ‘a fair whack’ which I now know is a fair bit of time, but I didn’t really understand what ‘a fair whack’ meant.
The applicant agreed that he had a break at one point when he left the office. He said he wanted to discuss the suggested plea with his correctional services officer, however when he could not see him, he went to a chemist and bought some diazepam which he took, apparently in larger quantities than prescribed. He said by the time he arrived back at the offices of Mr Healy and Mr Dibden he was still crying and shaking. In fact he was crying so much he could not read the document as he signed it. However he maintained that he had refused to read the document in any event. When he was asked about the amendments that appear on page three initialled by him he agreed that he did correct the document at that point where he felt it did not accurately record what he had said. He only had a quick flick of those first two pages and he did not read the last pages of the document.
At times the applicant’s evidence was confusing and he appeared to be saying at one point that he does not even now agree with the summary of what he said at page three of the document.
In cross‑examination the applicant denied that, at the earlier meetings, in particular one of the meetings on 4 November 2010, there had been any discussion about his case. He said the only thing Mr Healy was interested in on that day was the Melbourne Cup and which horse the applicant thought would win. At a subsequent meeting Mr Healy said he still had not had time to read the brief.
He denied that he was ever warned by either Mr Dibden or Mr Healy that he was at any risk of conviction on the attempted murder charge. In fact he said Mr Healy had told him that the prosecution did not “even have an inkling of a chance of pinning the attempted murder charge on me”. Later, he agreed that Mr Healy had said words to the effect that he was a little concerned about the statements of the independent witnesses and it was not looking too good in a lot of instances for him.
The applicant said he knew all about plea bargains but he was not interested in one and the only thing he ever agreed to plead to was using excessive force to defend himself. He acknowledged in cross‑examination that Mr Dibden and Mr Healy told him at least twice that the decision whether or not to enter the plea to the lesser charge was one for him to make on his own, and he also acknowledged that his friend Ms Olsson had told him it was his decision to make himself.
He claimed that Mr Healy said to him on 8 November that he would not represent him at the trial and legal aid would not give him another lawyer if he decided to go to trial.
He denied that his change of heart had anything to do with the fact that his bail was revoked after the entry of the plea, even though he acknowledged he was distressed about bail being revoked.
Mr Healy and Mr Dibden
Both Mr Healy and Mr Dibden gave evidence about their dealings with the applicant. It is not necessary to go into every detail about the evidence given by these witnesses except to say that in several material respects their evidence differs from the applicant’s account. Specifically Mr Healy estimated that in all he spent between four to five hours with the applicant on 8 November 2010. Mr Dibden was not as clear as Mr Healy about that but his evidence was that they spent several hours with the applicant on 8 November 2010, including a break over the lunch hour.

Mr Healy described the applicant as emotional and generally nervous and agreed that at times he did become teary. He said however that, generally speaking, the applicant is a nervous person and he was not markedly different on that day from the way he had presented earlier.
Both Mr Dibden and Mr Healy denied that the applicant had ever refused to read the document or that he had ever said he would refuse to read the document. In fact Mr Dibden said he appeared to read the document and then to sign it.
Mr Healy said that the applicant had a copy of the document he signed or a variation of that in the form of the summaries of each of the independent witnesses, prior to being asked to sign the document. Neither of the lawyers were 100 per cent sure about whether the applicant received that document on 4 November or on the morning of 8 November 2010. Mr Healy confirmed that he went through the pros and cons of the offer which had been made by the Director of Public Prosecutions to enter a nolle prosequi in exchange for the plea to the alternative charge. He made it clear to the applicant that it was his decision and not the decision of either Mr Healy or Mr Dibden. Mr Healy denied that he ever told the applicant that he would not represent him if he went to trial. Mr Healy said he was there throughout the time that the applicant read the instructions and he was present when he signed them. In cross‑examination Mr Healy reiterated that he would not have allowed the applicant to sign the document without reading it. He said he did have a discussion with the applicant about the penalty and said to him that although he could not guarantee what the sentence would be, the applicant could expect to have to do some gaol time.
The day after the instructions had been signed Mr Healy said he met the applicant outside the Sturt Street courts before going into court that day. At no stage did the applicant indicate any change of heart about his plea. Mr Healy’s evidence also differed from the applicant as to what was said to the applicant before the entry of the plea concerning bail. He warned him given the seriousness of the matter there was a real possibility that the Court would revoke bail, however he did advise him that the Director would not be opposing continuation of bail until sentence.
Discussion
The applicant is a man of reasonable intelligence. I find his explanation for how he came to initial the changes to page three of the document, without reading the rest of it including the critically important paragraphs at pages 8 and 9, unconvincing.
The applicant may well have been emotional, if not teary, at the time when he signed the instructions to his lawyers. It was after all, the day before trial and matters were coming to a head. However, I do not accept he did not read the document and that he did not understand the significance of the document when he signed it.
As he himself acknowledged he well understood the nature of a plea bargain. He well knew that the material in the independent witness’ statements undermined to a very significant degree, if not entirely contradicted, his instructions that he was acting in self‑defence at the time when he stabbed Mr Staehr.
The best indicator of why the applicant has changed his mind after entering the plea of guilty on 9 November 2010 is to be found in the following passage from his evidence:
AI was quite distressed because neither Mr Healy nor Mr Dibden had told me that my bail may be revoked. So the only thing I was thinking of in response was ‘No, thank goodness I’m going to have enough time to shoot home and get everything packed up and ready because it looks like I’m going to be going to prison for a while’. If you want to know completely what I thought, on top of that I thought ‘I’m going to be going to prison for a while for defending myself’.
QIsn’t the reason that you want to change your plea now because you didn’t think your bail would be revoked once you pleaded guilty.
ANo, not at all.
It is evident that the applicant was not expecting to have his bail revoked on the day when he entered his plea of guilty. He had been told that the Director of Public Prosecutions did not oppose continuing bail pending submissions on sentence and he was angry with his lawyers. He blamed them for the Court’s decision to revoke bail notwithstanding the attitude of the Director of Public Prosecutions.
The allegations which the applicant has made in this matter concerning the conduct of both Mr Healy and Mr Dibden are serious. If substantiated, they would amount to a very serious breach of the ethical obligations of both lawyers. I have no hesitation in rejecting the claims made by the applicant here. Specifically I reject his evidence that:
·the two lawyers spent less than two hours with him on 8 November 2010;
·that the first occasion when either Mr Dibden or Mr Healy discussed the case with the applicant was 8 November 2010;
·Mr Healy told the applicant he would not represent him if he went to trial and legal aid would not provide him with another lawyer;
·either of the two lawyers placed any inappropriate pressure or persuasion on the applicant to sign the document.
I find that Mr Healy and Mr Dibden between them spent the best part of the working day on 8 November 2010 with the applicant discussing this matter. It may have been less than five hours. It was certainly more than two hours. In addition, I find that the lawyers were anxious that Ms Olsson as the applicant’s friend be able to sit in on their meeting with the applicant. It was Ms Olsson’s decision to leave the meeting. She was not sent away by either Mr Dibden or Mr Healy.
The applicant left the chambers of Mr Healy to consult with another person about the proposal which had been made. He did not return until after lunch.
I find that neither Mr Dibden nor Mr Healy placed any inappropriate pressure or persuasion on the applicant to sign the instructions of 8 November 2010. The applicant read the document and then signed it in the presence of Mr Healy.
The signed document is in itself an indication that Mr Healy and Mr Dibden executed their duties in connection with this matter in a cautious and prudent manner. The applicant signed the document against the background of advice given by both legal advisers and against the background of the material in the independent witness statements. The applicant realised that the evidence of the independent witnesses was damning of his case that Mr Staehr was the aggressor not the applicant.
There is no evidence which suggests that the applicant was given any erroneous advice by either of his legal advisers, either about the prospects in the case or about any of the ancillary matters such as whether he was likely to be given bail and the likely sentence if convicted on either offence.
I find that it is significant that having signed the document on the afternoon of 8 November 2010, the applicant did not have a change of heart the next morning when he met Mr Healy before court and before entering his plea of guilty.
As I have said I consider the real reason why this application has been made lies in the disappointment which the applicant feels about his incarceration forthwith upon the entering of the plea of guilty. He may well be having difficulty coming to terms with the consequences of the plea of guilty.
On an application of this nature the onus rests on the applicant. On the basis of my findings, I can not conclude that there would be any miscarriage of justice if the applicant is not now permitted to withdraw his plea.
For these reasons the application to withdraw the plea of guilty is dismissed.