Rerekura v The State of Western Australia
[2019] WADC 16
•7 FEBRUARY 2019
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| IN CRIMINAL | ||
| CITATION | : | REREKURA -v- THE STATE OF WESTERN AUSTRALIA [2019] WADC 16 |
| CORAM | : LONSDALE DCJ | ||
| HEARD | : 22 FEBRUARY 2019 | ||
| DELIVERED | : 7 FEBRUARY 2019 | ||
| FILE NO/S |
| ||
| BETWEEN | : STEVEN REREKURA |
AND
THE STATE OF WESTERN AUSTRALIA
Catchwords:
Application for change of plea - Plea of guilty entered in the Magistrates Court -
Application allowed
Legislation:
Criminal Code
(WA), s 1(1), s 51(1), s 301(2)(b), s 304(2)(b), s 304(3) s 99(5)(a)(i), s 99(5)(a)(ii), s 99(5)(b)
Result:
Application allowed
[2019] WADC 16
Representation:
Counsel:
| Accused | : | Mr H Glenister |
Respondent : Mr D Harrop
Solicitors:
| Accused | : | Cathal Smith Legal Pty Ltd |
Respondent : State Director of Public Prosecutions
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19
Brown v Blake [2000] WASCA 132
Lim v Bateman [2001] WASCA 307
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Penny v The State of Western Australia [2016] WASCA 52
R v Liberti [1991] 55 A Crim R 120
Scatchard v The Queen (1987) 27 A Crim R 136
Snook (No 2) v The State of Western Australia [2015] WASCA 29
Stapleton v The Queen (1952) 86 CLR 358
Turner v The State of Western Australia [2015] WASC 490
Windie v The State of Western Australia [2012] WASCA 61
[2019] WADC 16
LONSDALE DCJ
LONSDALE DCJ
On 23 July 2018 the accused pleaded guilty in the Magistrates Court to doing an unlawful act with intent to harm Matthew Noel Smith contrary to s 304(2)(b) of the Criminal Code (WA) (the Code) arising out of an incident on the evening of Friday, 13 April 2018 outside the Augusta Hotel.
Section 304(2)(b) of the Code reads:
(2) If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which —
…
(b)
the life, health or safety of any person is or is likely to be endangered.
The person is guilty of a crime and is liable to imprisonment for
20 years.
The accused appeared before me in this court on 27 September 2018 to be arraigned. The accused declined to plead guilty and informed the court that he intended to make an application to change his plea on the basis that he had not been properly advised by his then solicitor as to the elements of the offence.
The State opposes the change of plea application.
The statement of material facts
The statement of material facts prepared by police and relied on by the State reads as follows:
At about 9.55 pm on Friday the 13th of April 2018 the accused was in the Augusta Hotel. Following an incident (charge preferred) the accused has walked out of the bar into a covered area outside the hotel.
The victim has walked outside and began verbal communication with the accused. The accused has grabbed the victim by his shirt and dragged him behind a concrete pillar where it can be seen on CCTV the victim's head is struck numerous times causing his head to hit the pillar.
The victim has fallen into a garden bed and stood himself up. The victim was unsteady on his feet and continued to motion to the accused, with open hands, as to why he was being treated that way.
[2019] WADC 16
LONSDALE DCJ
The accused has approached the victim, at this time the victim has both arms folded across his chest. The accused has struck the victim with his right hand, connecting with the victims left face/head.
The victim, having no ability to defend himself, has fallen backward, hitting the back of his head on a brick garden bed wall.
The victim has lost consciousness for about 45 seconds before being helped up by witnesses.
The entire incident has been captured on CCTV.
The victim was admitted overnight to hospital is [is][sic]still receiving treatment for injuries sustained.
On Friday the 6th July 2018 the accused was arrested and conveyed to Canning Vale Police Station. The accused gave a 'no comment' electronic record of interview where no admissions were made.
It is relevant that the heading section of the statement of material facts refers to s 304(2)(b) of the Code and also contains a brief description of the offence which includes the words 'intent to harm'.
The State alleges that the actus reus is the striking of the victim with the accused's right hand, causing the victim to fall and hit his head on a brick garden wall and lose consciousness for about 45 seconds.
Evidence before this court on the application for a change of plea
At the hearing of the application before me, the accused tendered an affidavit dated 2 October 2018 in support of his application. The affidavit details his dealings with solicitor Richard Lawson who appeared for him in the Magistrates Court when he pleaded guilty.
The relevant parts of the affidavit read as follows:
…
7. A few days [after being charged], I attended at Mr Lawson's offices in Perth. I was in his office for about an hour, but we spent equal time talking about my charges and my son's charges. In relation to my charges, Mr Lawson had received the statements of material facts from the police which we went through together. He had not received or reviewed the CCTV. Mr Lawson had to look up the more serious of the offences in the Criminal Code. He told me words to the effect that I had been charged with 'grievous bodily harm with intent to cause injury', that 'I didn't have much of a defence' and that 'I would be better off pleading guilty'. Mr Lawson did not go through the elements of the offence with me.
[2019] WADC 16
LONSDALE DCJ
The accused deposed that he later terminated his relationship with Mr Lawson and obtained advice from another practitioner.[1]
[1] Accused's affidavit, par 10.The accused gave oral evidence at the hearing before me on 21 January 2019. The accused testified that, at the time he entered his plea, he had been told by Mr Lawson that he 'did not have much of a defence'. He said that, at the time the plea was entered, he had thought that the element of 'intent' was established by him having hit the victim. I will return to consider the accused's evidence in detail later in my reasons.
Statutory basis of the application and s 99 of the Criminal Procedure Act
2004
The accused's application is that this court should now enter a plea of not guilty on his behalf.
The accused's application is made under s 99(5)(a)(i) or, in the alternative, s 99(5)(b) of the Criminal Procedure Act 2004 (WA) (CPA) which provide as follows.
(5) Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(a) having considered - (i) the material served on the accused under
section 35 or 95; …
the court is satisfied that the accused could not have or
may not have committed the offence charged; or
(b) having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
For present purposes, the relevant parts of s 35 of the CPA provide
as follows:
Initial disclosure by prosecutor
…
[2019] WADC 16
LONSDALE DCJ
(4) When or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with the following —
(a) a written statement of the material facts of each such charge; (b) an approved notice of the existence or non-existence, as the case may be, of any confessional material of the accused that is relevant to each such charge; (c) an approved notice that the accused does or does not have a criminal record, as the case may be; (d) any document that is prescribed. … (7) An approved notice advising an accused of the existence of any confessional material of the accused must also advise the accused of the effect of subsection (11). (8) An approved notice advising an accused that the accused does have a criminal record must also advise the accused of the effects of subsections (11) and (12) and section 168. (9) The material referred to in this section must be served before or at the time of the accused's first appearance in the court in relation to the prosecution notice unless it is impracticable to do so.
The relevant parts of s 95 of the CPA provide:
Disclosure by prosecutor
…
(5)
Within the prescribed period after an accused is committed for sentence on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a) a statement of the material facts of the charge; (b)
any confessional material of the accused that is relevant to the charge;
(c) a copy of the accused's criminal record;
[2019] WADC 16
LONSDALE DCJ
(d) a copy of the certificate given to the officer under section 45; (e) any other document that is prescribed.
It is common ground that the State had complied with its disclosure obligations under the CPA by serving both the prosecution notice and statement of material facts on the accused. There was no other disclosure available at the time the plea of guilty was entered in the Magistrates Court.
In order for the accused to be guilty of the instant offence, he must have had an intent to harm the victim in one of the ways listed in s 304(3) of the Code.
The accused submits that there is a reasonable argument that the intent element is not unequivocally made out on the statement of material facts. Consequently, the accused submits that the court should be satisfied that the accused 'may not' have committed the offence charged within the meaning of s 99(5)(a)(i) of the CPA.
Alternatively, the accused submits that, on the evidence led at the hearing of the application, the accused had a material misunderstanding as to the elements of the charge: s 99(5)(b) of the CPA.
The accused may not have committed the offence – first limb of s 99(5)
The accused does not deny that he struck the victim. He denies however that he did so with an intent to harm him. The accused submits that the statement of material facts discloses competing inferences as to whether he may have had the requisite intent. Consequently, it is submitted that this court should conclude that he 'may not' have committed the offence.
The accused concedes that it is certainly possible to draw an inference that he had the necessary intent but submits that one could also draw an inference that the accused had an intent to merely hurt the victim.
An intent to hurt is a different intent to the one which the State is required to prove, namely an intent to cause bodily harm.
The term 'intent to harm' is defined in s 304(3) of the Code which
provides:
[2019] WADC 16
LONSDALE DCJ
304. Act or omission causing bodily harm or danger
… (3) For the purposes of subsection (2) an intent to harm is an intent
to -
(a) unlawfully cause bodily harm to any person; or (b) unlawfully endanger the life, health or safety of, any person; or (c) induce any person to deliver property to another person; or (d) gain a benefit, pecuniary or otherwise, for any person; or (e) cause a detriment, pecuniary or otherwise, to any person; or (f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or (g) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
It is common ground that in this instance the State relies on an intent to cause bodily harm rather than one of the other types of intent listed in s 304(3).
'Bodily harm' is defined in s 1(1) of the Code as 'any bodily injury which interferes with health and comfort'.
The word 'injury' is not defined in the Code so in order to determine the meaning of the phrase 'bodily injury' it is necessary to resort to ordinary principles of statutory interpretation.
The Shorter Oxford English Dictionary defines 'injury' to include
'hurt or loss caused to or sustained by a person … harm, detriment;
damages, especially to the body; an instance of this'.
In Brown v Blake [2000] WASCA 132, Heenan J considered the meaning of the word 'injury' within the context of a charge of assault occasioning bodily harm. His Honour observed that the dictionary definition of injury was 'not so specific as to relieve this court of deciding what the word means'. His Honour then referred to what
[2019] WADC 16
LONSDALE DCJ
Burt CJ said in Scatchard v The Queen (1987) 27 A Crim R 136 at 137 where the word 'hurt' was contrasted with the word 'injury':
… When used as a noun the word 'hurt' is synonymous with injury, and
when used as a verb its primary meaning is to cause bodily injury to or to inflict injury upon. But when used to describe pain, and in this case
this was the sense in which Johns was using the word – 'it was hurting my neck' – I do not think that the word necessarily carries with it the
meaning that a bodily injury was being or had been done to the neck. In other words, while bodily injury can cause the sensation of pain, a sensation of pain does not of itself and without more require one to say that there has been a bodily injury.
…
It is not necessary for the purposes of this appeal to attempt a definition of 'bodily injury'. It is, I think, enough to say that to apply force to another which 'hurts' in the sense of producing a sensation of pain is not of itself and without more to do that person a 'bodily injury' and without such an injury the sensation of pain cannot of itself and without more satisfy the definition of 'bodily harm'.
Brown v Blake concerned acts of punching to the face, the pulling of hair and kicking to the stomach. The pain inflicted on the victim as a consequence of these acts was held not to amount to bodily injury because Heenan J considered that 'injury' meant 'something in the nature of damage to bone, muscle, tendon, ski, organ or any part of which the human body is constructed.
It is common ground that the accused's punch caused the victim to fall and be rendered unconscious and that he suffered an injury amounting to bodily harm. It is disputed however that the accused had an intent to cause bodily harm.
The materials listed at s 99(5)(a)(i) to (ii) of the CPA are the only materials which the court can consider in deciding whether it is satisfied that the accused may not have committed the charge within the meaning of the first limb of s 99(5).
This was explained in Birch v The State of Western Australia
[2017] WASCA 19 by Buss P [101]:
In my opinion, the specified information in s 99(5)(a) constitutes the whole of the information which the court is to consider and take into account in deciding whether it is satisfied that the accused could not have or may not have committed the offence charged. The court must consider and take into account the specified information and may not
[2019] WADC 16
LONSDALE DCJ
consider or take into account any other information. In that respect, s 99(5)(a) is to be compared to and contrasted with s 99(5)(b). By s 99(5)(b), the court must consider (and, necessarily, take into account) 'any evidence the court decides to admit' in deciding whether the court is satisfied that 'the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings'.
Mitchell JA explained the operation of the section in this way
[240]:
Section 99(5)(a) refers to the court being 'satisfied that the accused could not have or may not have committed the offence charged', 'having considered' specified material. The nature of the material which the court must consider is dealt with below. By contrast, s 99(5)(b) refers to the court being satisfied that the plea was made under a material misunderstanding, 'having considered any evidence the court decides to admit'. The inference arising from this contrast is that evidence is not admissible for the purposes of the court considering whether it is satisfied of any of the matters referred to in s 99(5)(a) of the CPA.
In the present case, the only material to be considered is the statement of material facts, the contents of which are not disputed by the accused.
The mere fact that the victim in fact suffered bodily harm does not point unequivocally to the accused having an intent to cause bodily harm. The accused submits that one inference is that the accused intended only to hurt him, the bodily harm being an unintended consequence of the act of striking him. Consequently, the accused submits that the court should be satisfied that the accused 'may not' have committed the offence because the intent element is not unequivocally established.
The issue of whether the accused had a subjective intent to cause 'bodily harm' (as opposed to a subjective intent to merely cause the victim a level of hurt or discomfort) cannot be informed merely by the result of that act, ie: that the victim was rendered unconscious.
The accused submits that what is required is an unequivocal statement that the accused had the relevant intent.
The State concedes that an assertion that the accused had the intent to cause harm is not set out in the body of the statement of material facts. However, the State submits that the question of intent (which is entirely subjective) is a matter of inference to be drawn from all of the
[2019] WADC 16
LONSDALE DCJ
circumstances outlined in the statement of material facts. See: Penny v
The State of Western Australia [2016] WASCA 52.
The question of an accused's intent is not to be presumed. In Stapleton v The Queen (1952) 86 CLR 358, the court said at (365):
The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self evident proposition of fact or it produces an illegitimate transfer of the burden of proof of a real issue of intent to the person denying the allegation.
However, what was said in Stapleton v The Queen should not be taken to mean that a court cannot draw an inference as to intent if the circumstances permit that inference to be drawn.
In my view it is unnecessary for the statement of material facts to specify that an accused person had the requisite intent because the question of intent is almost always established as a matter of inference to be drawn from other facts.
The greater the likelihood that the accused's act would have resulted in bodily injury, the easier it is to draw an inference that the accused had the requisite intent. The fact that the victim in this case did suffer a significant injury (which was clearly a foreseeable consequence of the accused's act), strongly tends to support an inference that the accused had the necessary intent to cause bodily harm.
The accused's act in punching the victim is not the only relevant circumstance. The statement of material facts refers to the accused having pushed the victim behind a pillar and the victim being repeatedly bashed by others shortly after being pushed by the accused. Also, the statement of material facts contains the detail that the victim had adopted a passive stance prior to the accused striking him and rendering him unconscious.
Having regard to these details, only one inference on the question
of intent is, in my view, reasonably open – that is, that when the
accused struck the victim, he did so intending to cause him bodily harm. Consequently I am not satisfied on the basis of the statement of material facts that the accused 'may not' have committed the offence.
The basis for the accused's application under the first limb of s 99(5)(a) is not made out.
[2019] WADC 16
LONSDALE DCJ
The accused may have had a material understanding as to one of the
elements of a charge – second limb of s 99(5)
The second ground of the application is made under s 99(5)(b) of the CPA on the basis that the accused had a material misunderstanding as to one of the elements of the charge.
The inherent jurisdiction of the court to enter a plea of not guilty
There is a third basis (not raised by counsel for the accused) which
gives the court a discretion to reverse the guilty plea – namely the
inherent jurisdiction of the court.
I propose to deal with these two bases together as they require me to consider evidence bearing upon the accused's understanding of the charge at the time he pleaded guilty.
This includes the evidence of the accused in his affidavit and from his sworn testimony at the hearing before me. It also includes the evidence given before me by Mr Lawson, the accused's solicitor at the time the plea was entered in the Magistrates Court.
Principles to be applied
Whether or not a decision to reverse a plea is being considered under the second limb of s 99(5) of the CPA or under the inherent jurisdiction of the court, I must have regard to any evidence bearing upon the accused's understanding of the elements of the charge as well as other evidence bearing upon the question of miscarriage of justice: Snook (No 2) v The State of Western Australia [2015] WASCA 29 [103], [105]; Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510, 511; Windie v The State of Western Australia [2012] WASCA 61. In Windie the court said [19]:
It is clear from the language of the subsection that a court considering whether to enter a plea of not guilty may, as his Honour did in this case, have regard to material other than the statement of material facts. The onus is on the applicant to establish that the plea in the lower court was entered as a result of a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
The onus is on the accused under the second limb of s 99(5) to prove on the balance of probabilities that the plea in the lower court was as a result of a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
[2019] WADC 16
LONSDALE DCJ
If the application is made on the basis of the inherent jurisdiction of the court, the onus is on the accused to show why he should be permitted to change his plea. This is not easy for an accused to do when he has legal representation at the time the plea is entered: Snook [103] (Hall J, Buss & Mazza JJA agreeing).
It is not sufficient for an accused to attribute a plea of guilty to bad or inadequate advice. In Snook [108] the court said:
The appellant's pleas of guilty to both charges on 22 March 2013 were unequivocal. The appellant's lawyer confirmed, in her presence, that she understood the charges, admitted the elements and was aware of the consequences of entering the pleas. The fact that the proceedings were then adjourned to enable the appellant to obtain an independent report from her psychologist further confirms that she understood that she was pleading guilty and intended to do so.
Nor is it sufficient to demonstrate that an accused may not have committed the offence in question: Birch [177] (Mazza JA).
It is also not sufficient if the accused did not appreciate the seriousness of the offence or the penalty: Turner v The State of Western Australia [2015] WASC 490 [34].
The decision to set aside a plea should be exercised with caution. In R v Liberti [1991] 55 A Crim R 120, 122 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.
The evidence
I turn now to consider the evidence before me on the application.
The accused's affidavit was tendered through the accused who gave evidence affirming its truth. The accused was then asked questions from counsel to illicit some further explanation about the circumstance of his decision to plead guilty:[2]
[2] ts 11.
[2019] WADC 16
LONSDALE DCJ
GLENISTER, MR: All right. Mr Rerekura, in your affidavit at paragraph 8 in the last sentence you state that:
Mr Lawson did not break down the elements of the offence.
? --- That is correct.
Did he provide you with any explanation about the intention element of the offence? --- Not to my knowledge, no.
What was your understanding of that element at the time, the intent to harm as set out in the statement of material facts and the prosecution notice, what was your understanding of the concept of 'intent to harm'? - -- That I had actually hit the person.
Okay. So when you entered your plea in the Magistrates Court you understood 'intent to harm' to mean that you'd hit the person? --- Yes.
Right. So you didn't understand any more than that? --- No.
Right. When you met Mr Lawson in his office which you stated that you did in paragraph 7 of your affidavit, did he discuss multiple options with you how to proceed with your charge? --- Guilty or not guilty were the two options I was given.
So there were no further options? --- Not that I can remember, no.
I then asked some questions of the accused:[3]
[3] ts 12 - 15.LONSDALE DCJ: All right. Well, I have some questions.
Mr Rerekura, when - what date was the telephone call with Mr Lawson? --- I can't remember but I - just looking at my statement thing here, and it says 6 July when I was arrested by the police officers from Canning Vale.
All right. And when did you speak to Mr Lawson in person? --- A few days after that.
And where did that take place? --- In his office on Hay Street.
And as best you can recall what did he tell you about the charge? --- He said I had two charges. One was more severe than the other. And
he had to go and grab a book to refer to the other charge which was –
I think it was, to my knowledge, intent to cause bodily harm.
Yes? --- And the other one was a common assault.
…
[2019] WADC 16
LONSDALE DCJ
LONSDALE DCJ: All right. And what advice, if any, did he give you about what you should do? --- He said I didn't have much of a defence and I'm probably better off to give a guilty plea and the courts would probably be more lenient on me.
And did he explain the concept of intent to you? --- No, not to my knowledge, your Honour.
All right. So did he provide you with any written advice? --- No.
Did you ever receive any letters from him? --- No.
The accused was then cross-examined by the State prosecutor. Relevant portions of the cross-examination appear below:
HARROP, MR: When did they give you the statement of material facts? --- I think they gave it to Richard. Actually they've given me a lot of papers, I'm just not sure if they gave me this one as well but, yeah.
But you saw this document before you met with Mr Lawson, didn't you? --- Yes, I think I did.
…
HARROP, MR: Do you recognise this document, Mr Rerekura? ---
Yes.
And that's the statement of material facts in relation to this charge? ---
Yes.
And you'll see there are some handwritten notations on it? --- Yes.
And if I was to say to you they were made by Mr Lawson, would you accept that? --- Yes.
And that's in fact when he went through the statement of material facts with you in his office on 13 July? --- Yes.
He's underlined the word, 'Communication', on the third line down and written the word, 'Abuse', above it, you see that? --- Yes.
…
HARROP, MR: And that's because you told him that your view was it wasn't verbal communication, but it was abuse? --- Yes.
And similarly, he's done that further down the page, about five lines down? --- Yes.
[2019] WADC 16
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Otherwise there's a single cross next to the word, 'Hit the pillar'? ---
Yes.And that's because you told him that you weren't sure that the head hit the pillar? --- Yes.
…
HARROP, MR: He advised you that if you pleaded guilty on the fast track you might then receive a sentence that allowed you to remain in Australia? --- I don't recall that. He may have but I don't recall that.
Now, you've said in your affidavit that Mr Lawson words [sic] to the effect that you were charged with grievous bodily harm with intent to cause injury. That's what you recall him saying? --- Yes.
Could it be that he said, 'You're lucky it wasn't grievous bodily harm because it would have been more serious'? --- I don't recall that.
And you said he had to - he went and got a book, the Criminal Code - -
-? - - - Yes.
- - - to talk about the offence and as he did that he showed you the book,
didn't he? - - - He didn't show me the book he just read from the book.
Yes. The offence provision from the book he read to you? - - - Yes.
…
LONSDALE DCJ: Yes. I just have a few more questions and I'll give both counsel an opportunity to ask some further questions.
Mr Rerekura, what do you understand now about the element of the offence which requires the prosecution to prove that you had an intent to harm? - - - That I committed an act and that that act endangered the victim as to his - his life, his safety and his health and that my act was intentionally to cause grievous bodily harm.
Right. And what did you understand about that at the time that you entered the plea of guilty in the Magistrates Court? - - - Because I hit him I hurt him.
Evidence of Richard James Lawson
I was informed by counsel for both the accused and the State that the accused had waived legal professional privilege in order to permit Mr Lawson to give evidence of his dealings with him. Mr Lawson did not swear an affidavit in advance of the proceedings. The only documentation Mr Lawson had apparently retained on his file was a statement of material facts containing some brief notations.
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LONSDALE DCJ
Mr Lawson gave evidence that he was a legal practitioner who was admitted in the year 2000.
He said that his client had given him clear instructions that he wished to plead guilty.[4] He gave evidence that his recollection was that the accused had been charged with threatening to endanger life contrary to s 301(2)(b) of the Code.
[4] ts 23 - 26.An extract of his cross-examination includes the following
exchange:[5]
[5] ts 23 - 25. 6 ts 23 - 25.
GLENISTER, MR: Mr Lawson, so you met up with Mr Rerekura in your office to give him legal advice on these charges? - - -Yes.
All right. Was that the only occasion on which you gave him legal advice on these charges or - - - ? - - - No.
No? - - - No. He called up earlier and he said, 'I think the police want to search my house'.
Yes? - - - And I - - -
But with - was the actual charge itself discussed in that conversation? -
- - No.
No? - - - No.
So it's fair to say the only legal advice he received was at your office during that consultation on 13 July? - - - Yes. You could say formal - - -
Yes? - - - legal advice, yes.
All right. So how familiar are you with the charge that Mr Rerekura was facing? - - - Which one?
The one before this court, the one contrary to section 304 of the
Criminal Code? - - - 304.An act with intent to harm as a result of which - - -? - - - Yes. It's not a charge that one sees frequently - well, I haven't. But I've had another client with it in the past.
So is it fair to say that you're not very familiar with this charge? - - -
I am familiar with the charge.
[2019] WADC 16
LONSDALE DCJ
Well, in your examination-in-chief you misstated both the section and the - what the actual charge is. You - - -? - - - Well - - -
- - - stated that it was 301(2)(b) and you said that it's threat's to endanger the life, health or safety of another? - - - Yes, I - I don't have it in front of me.
…
GLENISTER, MR: Well, Mr Lawson, it's actually an act which - - - ?
- - - An act, yes.
- - - not a threat and it's also with intent to harm? - - - Yes. Sorry,
I didn't - - -So did you break down the elements of the offence for Mr Rerekura? - - - Yes, I told - I printed it off and I went through the offence. I said, 'This is what the offence entails', and then I went to the punishment of the offence.
And how - how - how did you describe the concept of intention to him?
- - - Well, in terms of his conduct on the day.
Okay? - - - I said, 'You can infer intent from what you're doing here.
You wanted to hurt this guy'.Sure. So you said that - your advice was that his intention was to hurt the victim? - - - No, I said, 'Your intention from what I'm reading here and from what they say in the statement of material facts is that you wanted to hurt him'. Yeah.
So did you take him to the provision in section 304(3) which defines intent to harm for the purposes? - - - I - I can't remember, sorry.
So is it fair to say that you didn't take him to that provision? - - - No,
I can't remember.So if you can't remember this question might be redundant but did you tell him that an intent to harm is defined as an intent to unlawfully cause bodily harm to any person? - - - I think there was some discussion about the bodily harm because also what I said was that if his injuries didn't stabilise, the bodily harm could be going up to grievous bodily harm if he received permanent injury to health.
Sure? - - - I told him that.
But that's the objective element of the offence not the subjective one which is of course - - -? - - -Yeah, I - - -
- - - what is required by the intention element? - - - Yes, but I - I think I talked about intention here, about those two - especially those two
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offences, the one he was on and the grievous bodily harm one that he
may have faced.Well, you just told me that you told him that your intent was to hurt the guy. Surely that's not enough to be an intention to cause bodily harm? - - - Yes. I - well, depending on the injury.
Well, precisely, Mr Lawson? - - - Yes.
His intention had to be to cause a bodily injury - - -? - - -That's right.
- - - to the victim not merely to hurt him? - - - Well, okay. Bodily
injury. I stand corrected.
…
So I - I just wanted to distinguish between 'hurt' and 'bodily harm' on the one hand. Are you confident that you distinguished between the two of them in your consultation with - - -? - - - Yes.
- - - Mr Rerekura? - - - I - I really can't tell you specifically, I believe I did talk to him about that because I was more concerned about the - the injuries of the victim.
Okay. Now, you didn't make any file notes, did you, Mr Lawson? - - -
No, I wrote right on the statement of material facts.No. Were any written instructions ever drafted up for Mr Rerekura to sign? - - -No.
Findings of fact on the evidence
My impression of the accused was that he was an honest witness who was doing his best to give accurate evidence. I accept his evidence, that when he entered his plea in the Magistrates Court, he genuinely did not understand that in order to establish the element of intent, the State was required to prove that he had an intent to cause bodily harm which required more than intent to merely hurt him.
The accused did not seek to deny complete responsibility for his conduct. He did not deny hitting the victim and causing him to become unconscious. These were significant admissions against his interest which he could well have chosen to deny on this application. The fact that he was prepared to make these admissions against his interest affirms my impression of him as a truthful witness.
I also accept the accused's evidence that he was unable to recall Mr Lawson having explained the element of intent to him in any detail.
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The accused's evidence was that he thought that the element of intent was established by him having hit the victim. He did not at the time he pleaded guilty understand that something more was required.
In my view, the accused he gave a plausible account of his dealings with Mr Lawson. He identified that he knew Mr Lawson because he had acted for his son in relation to unrelated charges. He was able to give an intelligible account of how he came to speak to him on the occasion of his arrest and then again at his office on 13 July 2018.
It is not surprising in my view that the accused may have misunderstood the elements of the offence and the significance of a guilty plea. The reason why I have come to that conclusion is primarily because of the evidence given by Mr Lawson.
Mr Lawson's evidence revealed that he did not understand the difference between an intent to hurt and an intent to harm. He did not acknowledge that distinction until it was pointed out to him in cross-examination by counsel for the accused.6
Also, Mr Lawson misstated in evidence the section under which the accused had been charged.[7]
[7] ts 23.
By reason of the foregoing I find that there is a real risk that the accused had entered his plea under a material misunderstanding as to one of the essential elements of the offence.
The absence of any written advice from Mr Lawson together with his evidence that he did not discuss alternative charges with the accused tends to support the absence of adequate legal advice on the subject of intent.
I was not impressed by the evidence of Mr Lawson. I do not find that he was being deliberately untruthful but in my view he had approached his task of advising the accused in a somewhat cavalier manner, particularly given the seriousness of the offence.
Mr Lawson agreed in cross-examination that, apart from a few markings on the statement of material facts, he took no notes of his client's instructions nor of the advice provided to the accused. He did not provide any written advice; nor did he obtain any written
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instructions from the accused prior to the accused having entered his plea. A prudent practitioner would have at least taken some notes of the client's instructions, if not written instructions. A prudent practitioner might also be expected to provide his client with some written advice about the elements of the offence.
When a person is represented by counsel, the court is entitled to rely upon counsel having explained to the accused the legal and factual matters necessary to allow an accused to make an unequivocal plea of guilty: Lim v Bateman [2001] WASCA 307 [41].
However, the fact that the accused is represented by experienced counsel is not the end of the matter. If I form the view that, despite counsel's experience, it is likely that the accused was not properly advised then I am not obliged to proceed on the basis that the accused received adequate legal advice no matter how experienced counsel is.
The question of intent is not a straightforward concept and it is incumbent on lawyers to take care in explaining that concept to a client.
Conclusion
I have concluded that, when the accused entered his plea, he did so in circumstances where he had a material misunderstanding as to one of the critical elements of the charge. Consequently, s 99(5)(b) of the CPA permits me to enter a plea of not guilty.
If I am wrong about that, then I have concluded that I can and should exercise the power which resides in me pursuant to the inherent jurisdiction of the court to prevent a miscarriage of justice to reverse the plea of guilty and permit the accused to enter a plea of not guilty.
I will proceed to enter a plea of not guilty on the accused's behalf and remand him to appear at a trial listing hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
Associate to Judge Lonsdale
11 FEBRUARY 2019
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