Shepherd v The State of Western Australia [No 2]
[2023] WASCA 159
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHEPHERD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 159
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 13 JUNE 2023
DELIVERED : 13 NOVEMBER 2023
FILE NO/S: CACR 104 of 2022
BETWEEN: LEANN NICOLE SHEPHERD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 2051 of 2020
Catchwords:
Criminal law - Appeal against conviction - Where appellant claims she was assured she would receive a suspended sentence if she pleaded guilty - Where appellant claims her lawyer did not adequately prepare her defence - Where appellant claims her lawyer's assessment of strength of prosecution case was incorrect - Whether plea of guilty induced - Whether miscarriage of justice established
Legislation:
Nil
Result:
Extension of time to appeal refused
Leave to adduce additional evidence refused
Leave to appeal on both grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | J Whalley SC & K C Cook |
Solicitors:
| Appellant | : | Sklarz Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Borsa v R [2003] WASCA 254
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Larsen v The State of Western Australia [2019] WASCA 181
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
MMC v The State of Western Australia [2018] WASCA 52
R v Murphy [1965] VR 187
Rofail v The State of Western Australia [2019] WASCA 166
Shepherd v The State of Western Australia [2023] WASCA 17
Snook v The State of Western Australia [No 2] [2015] WASCA 29
JUDGMENT OF THE COURT:
The appellant was convicted on her plea of guilty of one count of possession of a prohibited drug, namely a trafficable quantity of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1982 (WA). On 29 July 2022, she was sentenced to 4 years' immediate imprisonment, with an order that she be eligible for parole. An application for leave to appeal against that sentence was refused.[1] The appellant now seeks leave to appeal against her conviction.
[1] See Shepherd v The State of Western Australia [2023] WASCA 17.
The two grounds of appeal essentially raise the same issue, namely whether the appellant's plea of guilty was obtained by improper inducement and 'flagrant incompetence' on the part of her counsel and, consequentially, whether there has been a miscarriage of justice.
In support of her grounds, the appellant applied to adduce additional evidence on the appeal. She filed affidavits from herself, David Stanford, and Margaret Shepherd. The appellant and Mr Stanford gave evidence at the hearing of the appeal and were cross‑examined.
The respondent also sought leave to adduce additional evidence on the appeal and filed an affidavit from Tony Hager, counsel who represented the appellant in the court below. Mr Hager was also called at the hearing of the appeal and was cross‑examined.
The appellant's case on appeal depends critically on the credibility of her evidence that she was pressured by her lawyer to plead guilty and induced to do so on an assurance from him that, if she pleaded guilty, she would receive a suspended sentence. The appellant was not a credible witness. Her evidence was inconsistent in important respects and generally implausible. We do not accept the appellant's evidence on the critical facts in issue. In the circumstances the appellant has failed to demonstrate that there has been a miscarriage of justice.
For the following reasons, leave to appeal should be refused on both grounds, and the appeal dismissed.
Background
On 12 March 2019, the appellant was driving on Tonkin Highway, when she was stopped by police. The car belonged to the appellant's sister, Michelle Anderson, who was sitting in the passenger seat. A friend of the appellant, Amelia Kreinbihl, was in the rear.[2]
[2] ts 488.
The vehicle and the three women were searched. Ms Anderson voluntarily disclosed to a police officer that she had a package in her bra. The package was wrapped in a blue Chux dishcloth and contained 55.1 g of methylamphetamine. Ms Anderson was charged with possession of a trafficable quantity of methylamphetamine, with intent to sell or supply it to another. The appellant was not charged at that time.[3]
[3] ts 488.
In early 2020, following legal advice, Ms Anderson approached police about providing a statement against others involved in the possession of the drugs. On 24 April 2020, Ms Anderson signed a witness statement, implicating the appellant and Ms Kreinbihl. Ms Anderson stated that the package containing the drugs had been obtained by Ms Kreinbihl at the home of her ex‑partner and given to the appellant, who had placed it into her own bra. Ms Anderson stated that when the police vehicle approached the appellant's car, the appellant pulled the package out of her bra and placed it into a compartment between the seats. In a moment of panic, Ms Anderson grabbed the package and hid it in her own bra. Ms Anderson said that she did not know what was contained in the package but realised that something was going on and was trying to protect her sister (the appellant). She suspected that the package contained cannabis.[4]
[4] Statement of Michelle Kym Anderson sworn 24 April 2020, pages 1 - 13.
Ms Anderson said that she was later spoken to by both the appellant and Ms Kreinbihl. Ms Kreinbihl told her to 'keep her fucking mouth shut' and words to the effect 'dogs get put in boots'. The appellant told her that she (Ms Anderson) would not go to gaol, as she had no record. The appellant also told Ms Anderson what story to make up as to how she came into possession of the package.[5]
[5] Statement of Michelle Kym Anderson sworn 24 April 2020, pages 8 - 12.
Sometime later, when Ms Anderson had ceased contact with the appellant and had received legal advice, she decided to disclose the truth as to what had occurred, and this led to the making of her statement on 24 April 2020.
Procedural history
On 1 May 2020, the appellant was charged with possession of a trafficable quantity of methylamphetamine with intent to sell or supply in relation to the 55.1 g of methylamphetamine that had been located on Ms Anderson on 12 March 2019. Ms Kreinbihl was also jointly charged with the same offence.
Ms Anderson pleaded guilty and on 23 November 2020 she was sentenced to 12 months' imprisonment, conditionally suspended for a period of 12 months. The factual basis on which she was sentenced reflected the contents of her statement. That sentence also reflected substantial discounts for past and future promised cooperation. The future cooperation consisted of an undertaking to give evidence in accordance with her statement at the trial of the appellant and Ms Kreinbihl.
On 2 June 2020, the appellant entered a plea of not guilty. On 6 December 2021, she was granted legal aid, and Mr Hager was appointed as her lawyer. She maintained her plea of not guilty and the matter was listed for trial. The trial was originally listed to start on 18 May 2022. However, Mr Hager contracted COVID‑19 and was required to isolate. This resulted in the trial being adjourned to 24 May 2022.[6]
[6] ts 90 - 92.
Prior to the trial, the prosecution filed an application giving notice of an intention to adduce propensity evidence, pursuant to s 31A of the Evidence Act 1906 (WA). This application related to text messages received or sent by the appellant which were said to show that the appellant had been engaged in drug dealing. The text messages will be referred to in more detail later in these reasons. The s 31A application was listed to be heard on 24 May 2022, with the jury trial to start the following day.[7]
[7] ts 91 - 92.
On 24 May 2022, the appellant was represented by Mr Hager. He indicated to the presiding judge, Stewart DCJ, that if the appellant was re‑arraigned, he expected she would enter a plea of guilty to the charge. Counsel stated that he had had an opportunity to confer with his client. The count relating to the appellant was then put to her and she entered a plea of guilty. The trial judge asked Mr Hager whether that plea was in accordance with his instructions, and he confirmed that it was. The trial judge then entered a judgment of conviction.[8]
[8] ts 96 - 97.
The prosecutor stated that he had spoken to Mr Hager regarding bail and that the State did not oppose bail, bearing in mind that the appellant was the primary carer for her mother and five children. The prosecutor stated that there was no opposition to bail being granted in order 'to allow Ms Shepherd to get her affairs in order'. Mr Hager then sought a pre‑sentence report for the purposes of sentencing, which was listed to take place on 29 July 2022.[9]
[9] ts 97 - 98.
The trial judge then addressed the appellant in the following terms:[10]
So stand up, Ms Shepherd. What's going to happen is that I'm going to sentence you on 29 July. And in the meantime I'm going to call for a written pre-sentence report. And as Mr Hager has said, you have to get your affairs - or [the prosecutor] said, I'm going to give you time to get your affairs in order. Okay?
All right. So I'll renew bail on the same terms as previously. You'll come back before me at 10 o'clock on 29 July. And make sure that you make contact with Community Corrections so that we can get the written pre‑sentence report done in good time.
Do you have any questions about any of that?
[THE APPELLANT]: No, your Honour.
[10] ts 99 - 100.
The trial of Ms Kreinbihl proceeded before Stewart DCJ and a jury. Ms Anderson gave evidence at the trial consistent with her witness statement. The State's case against Ms Kreinbihl also included text messages between her and the appellant. These text messages were relied upon as evidence of ongoing drug dealing by the appellant and Ms Kreinbihl. Ms Kreinbihl gave evidence in her own defence admitting that the messages, at least in part, used code words such as 'bread' and 'milk' to refer to money and drugs, respectively. However, Ms Kreinbihl maintained that the references to 'milk' were references to cannabis and not methylamphetamine.[11]
[11] ts 315 - 320, 328, 343.
Ms Kreinbihl was convicted of possession of the methylamphetamine with intent to sell or supply. Her sentencing was also listed to take place on 29 July 2022.[12]
[12] ts 447, 452.
On 29 July 2022, the appellant and Ms Kreinbihl appeared before Stewart DCJ for sentencing. The appellant was represented by Mr Hager. The appellant was sentenced to 4 years' immediate imprisonment and Ms Kreinbihl was sentenced to 4 years 5 months' immediate imprisonment. The difference is accounted for by the fact that Ms Kreinbihl went to trial and the appellant received a 10% discount for her late plea of guilty.[13]
[13] ts 486 - 501.
The grounds of appeal
The grounds of appeal are as follows:[14]
1.The appellant's conviction based on her plea of guilty, be set aside, due to there being a miscarriage of justice caused by that plea being obtained by improper inducement.
2.There has been a substantial miscarriage of justice due to 'flagrant incompetence' of counsel with respect to:
a)His erroneous advice which induced and pressured the appellant's change of plea to guilty, and
b)His pressuring of the appellant into pleading guilty, which was not attributable to a genuine consciousness of guilt.
[14] WAB 6.
At the hearing of the appeal, counsel for the appellant conceded (with respect, correctly) that both grounds depended upon acceptance of the appellant's evidence that she was induced to enter her plea of guilty. The reference in ground 2 to 'flagrant incompetence' was accepted as being a particular of what the appellant says was the inducement.[15]
[15] Appeal ts 154 - 156, 159 - 160 (especially appeal ts 155).
The additional evidence on the appeal
The appellant filed an application for leave to adduce additional evidence on the appeal. That application sought leave to adduce the affidavits of the appellant, Mr Stanford, and the appellant's mother, Mrs Margaret Shepherd. The appellant and Mr Stanford gave oral evidence at the appeal and were cross‑examined. Mrs Margaret Shepherd was unwell and unable to give oral evidence. The respondent did not object to the tender of her affidavit, but reserved the right to make submissions as to the weight that should be given to it.
The respondent filed an application for leave to adduce additional evidence in the form of an affidavit of Mr Hager. Mr Hager was called at the hearing of the appeal and cross‑examined.
A summary of the additional evidence is as follows.
The appellant
In her affidavit the appellant states that in the weeks leading up to 24 May 2022, she felt that she was not being represented competently by Mr Hager. She started losing confidence in him because they had only had about 30 minutes of personal attendances and about 30 minutes of telephone calls. She states that she wrote about 40 emails to Mr Hager, consistently maintaining her innocence, but only received 10 short replies and 'no real legal advice'. At all times, she maintained her plea of not guilty and understood that she was proceeding to trial.[16]
[16] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [13].
On 21 April 2022, the appellant sent an email to Mr Hager in which she stated, 'I am worried that you don't believe me and [are] not going to fight for me in my trial … I just need reassurance that you are going to do your best to help me'. Mr Hager responded by email on 27 April 2022, stating that trial preparation was continuing. On 10 May 2022, Mr Hager sent a further email, stating that the first day of the trial would be consumed with legal arguments but that there would be an opportunity at that time to meet and discuss the matter. He advised that the trial was 'fully prepared and ready to go'.[17]
[17] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [14] - [16].
The appellant states that on 16 May 2022, Mr Hager telephoned her and said words to the effect that if she pleaded guilty and gave evidence against her co‑accused, Ms Kreinbihl, she would receive a suspended sentence. The appellant replied by saying that she was innocent and had nothing to write a statement about against Ms Kreinbihl, as she did not 'have a clue' what Ms Anderson had done. Mr Hager responded by saying that, in that case, he would see her at trial. The telephone call was no more than 10 minutes long.[18]
[18] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [18].
The appellant states that she was very concerned that her interests were not being properly represented and that this caused her to write an email directly to the associate to Stewart DCJ on 18 May 2022 in which she said that she did not feel that Mr Hager was representing her adequately and that she was not guilty of the charge.[19]
[19] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [20].
At a directions hearing on 18 May 2022, Stewart DCJ raised the email referred to in the previous paragraph with Mr Hager, who said that he had spoken to the appellant the day before and would speak to her again.[20]
[20] ts 93 - 94.
The appellant states that she had a conversation with Mr Hager on 17 May 2022, but it was only for three minutes to tell her that he remained in COVID‑19 isolation and would not be present in person in court the following day. She states that when he telephoned her after court on 18 May 2022, he 'only wanted to know about the letter [she] sent to the judge and nothing about [her] case'.[21]
[21] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [23].
The appellant states that on 24 May 2022, she was driven to court by Mr Stanford. She arrived at the District Court at around 8.30 am and surrendered to the detention centre. She was released at around 11.00 am and was informed that the trial judge was not available until later that day.[22]
[22] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [24] - [26].
The appellant states that she then met with Mr Hager in an interview room (the first meeting). She says that at that meeting, Mr Hager told her that she would be found guilty if she proceeded to trial because of three significant pieces of evidence, namely the propensity evidence, the appellant's DNA on the wrapping of the drugs, and Ms Anderson's evidence.[23]
[23] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [27] - [28].
The appellant says that she responded to Mr Hager by saying that she was not guilty and had a defence to all of the allegations. She says that she referred Mr Hager to her diary of daily commitments and said that it was impossible for her to have the time to be dealing drugs. She also said that the police had searched her house and found nothing.[24]
[24] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [29].
The appellant states that during the first meeting Mr Hager told her that if she pleaded guilty she would receive a sentence of 18 months' imprisonment and, with mitigating factors, she 'should get a suspended sentence'. She says that Mr Hager said this was the best chance for her to immediately get back to her family. She says that Mr Hager said that if she did not plead guilty and went to trial, she would go to gaol for 5 years. She says that when told this she was shocked, panic‑stricken and distressed, and started crying and shaking uncontrollably.[25]
[25] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [32] - [33].
The appellant states that Mr Hager told her that she had 10 minutes to think about it because he had to advise the prosecutor and the judge of her decision before lunch, as the jury panel were ready to start the trial. She says she asked for at least 30 minutes to consider this 'new advice', but Mr Hager told her that she only had 10 minutes.[26]
[26] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [34].
The appellant states that she urgently left the office and took the lift downstairs to talk to Mr Stanford, who was waiting on the ground floor. She says that she told Mr Stanford, 'I don't know why he wants me to plead guilty when I am innocent'. She was still very distressed and asked Mr Stanford to join her in going back upstairs to speak with Mr Hager.[27]
[27] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [35] - [36].
The appellant states that she and Mr Stanford met with Mr Hager again (the second meeting) and that she repeated that she was innocent and was not prepared to plead guilty. She said that Mr Hager interrupted her and said that he had done hundreds of these cases before, and that the jury would find her guilty. He said that she would be imprisoned for 5 years, and that if she proceeded with the trial, she would not get any discount or reduction in her sentence. He told her that if she changed her plea, she would get a good discount on her sentence and would 'be likely looking at 18 months' imprisonment', but with the strong mitigating factor of her family's dependence on her, there was a very good chance she would get that sentence suspended or even receive a non‑custodial order. He told her that he would push for a suspended sentence and get her bail until her actual sentencing date. She says that Mr Hager reassured her that it was unlikely that she would get an immediate imprisonment term, and that he could make all this happen for her if she pleaded guilty.[28]
[28] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [38].
The appellant states that she responded to Mr Hager by saying that she was not in possession of the drugs, knew nothing about the allegations of drug dealing, and wanted to plead not guilty. She states that Mr Hager replied that because she was in the car with the others, she had joint possession of the drugs, and said that she had a few minutes to make a decision.[29]
[29] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [39].
The appellant states that she felt very confused and distressed at Mr Hager's change of attitude towards her and her 'defence of innocence'. She felt that Mr Hager was no longer listening to her instructions and felt induced and pressured into pleading guilty within the very short time available. She states that she changed her plea to guilty in reliance on Mr Hager's advice that she would be given a suspended sentence or receive a non‑custodial order, thus allowing her to return to her family and continue caring for her mother and children. She states that she relied on this advice even though she still believed she was innocent and wanted to maintain her plea of not guilty. She says that at the time, she was aware that her sister and co‑accused, Ms Anderson, had received a suspended 12‑month term of imprisonment.[30]
[30] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [40] - [42].
The appellant refers to various emails she sent to Mr Hager in which she maintained her innocence. She states that Mr Hager did not go through her instructions in the emails and did not prepare a proof of her evidence. She says that at no stage did Mr Hager ask for details of her defence. She says that there were many matters that she raised that would have assisted Mr Hager in cross‑examining the prosecution witnesses, but she believes that the matter was not properly prepared.[31]
[31] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [49].
The appellant states that when she pleaded guilty, it was simply a matter of saying a word that she did not really believe, but she felt that it was the only course for her to follow.[32]
[32] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [53].
As regards the State's allegation that the appellant's DNA was found in a mixed profile on the blue Chux dishcloth that was wrapped around the clipseal bag of drugs, her position is that this is because, prior to leaving her home in Bunbury, Ms Anderson had accidentally broken her bra clip. The appellant lent Ms Anderson one of her spare bras. She states that Mr Stanford was a witness to this event.[33]
[33] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [59].
As regards the text messages, the appellant states that Ms Anderson and Ms Anderson's boyfriend often used the appellant's mobile telephone without her permission. She believes that one of the texts referring to 'HWs' and 'HBs' can be explained on this basis and has nothing to do with her. She states that other references to 'milk', 'bread', 'hamburgers' and 'cool drinks' are not codes for drugs or money but to her buying bulk foods because there were up to 10 people living in her house.[34]
[34] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [60].
The appellant states that Ms Anderson could have been cross‑examined on the basis that she was mentally unwell and motivated by jealousy. She states that Ms Anderson's claim that the appellant had placed the package into the glovebox of the car is not true because it would have been impossible for her to have reached the glovebox while driving and wearing a seatbelt.[35]
[35] Affidavit of Leann Nicole Shepherd sworn 12 October 2022 [61] - [62].
At the appeal hearing the appellant gave additional oral evidence. She said that she had never seen or read a statement of material facts. She accepted that she had received a copy of the prosecution brief on 8 November 2021, but said that she was not aware of the contents of it. She handed the brief to Mr Hager when he was appointed as her lawyer. She said that she told Mr Hager about the explanation for the DNA (the broken bra) at a meeting in April 2022. She said that she told him about Ms Anderson's mental health problems in a phone call in February 2022 and again at the April meeting. She said that she did not understand what the s 31A hearing was about and did not go through the text messages with Mr Hager at the time. She has looked at the messages since then and has explanations for them. Essentially those explanations are that the references in the messages are to food that she was buying in bulk and cooking for the many people who lived in her house and for friends.[36]
Cross‑examination
[36] Appeal ts 38 - 43.
The appellant accepted that she had not been in paid employment since 2015. She had been the carer for her mother and received a carer's pension. She also has a legally blind and autistic son who she cared for.[37]
[37] Appeal ts 47 - 50.
In a pre-sentence report prepared for the purposes of sentencing, the appellant was reported as having initially said that she had never used methylamphetamine, or at least had only used the drug recreationally. The report states that the appellant subsequently made a telephone call to the author and said that she had been untruthful during the report interview, admitting that she was using methylamphetamine almost every day leading up to the incident in March 2019.
When the pre-sentence report was put to the appellant, she accepted that she had telephoned the author of the report and said that she had been untruthful in the interview. However, she denied saying that she had been using methylamphetamine almost every day leading up to the incident. She said that she was only using 'every now and then', 'maybe once a week' and 'probably about a point' each week. One of the people she sourced drugs from was Ms Kreinbihl. She accepted that she had used methylamphetamine after her arrest, but said that it was only twice. She said that she attended a rehabilitation centre on 13 June 2021 because she was volunteering and not for her own treatment. She accepted that she had been convicted of driving whilst affected by a prescribed illicit substance on 13 December 2020, though she denied taking any drugs.[38]
[38] Appeal ts 51 - 54.
The appellant said that on the day of the incident she had agreed to help Ms Kreinbihl move some of her things from the home of Ms Kreinbihl's ex‑partner in Bunbury to her new home in Perth. She said that Ms Anderson was with them because Ms Anderson went everywhere with her. Despite the long trip and her caring duties, she said that she did not think to ask Mr Stanford if he could assist Ms Kreinbihl.[39]
[39] Appeal ts 55 - 58.
As regards the broken bra, the appellant said that she obtained the replacement from her bedroom. It was not freshly laundered; it was a bra that she had bought on sale and tried on but found that it was a bit too big and that she did not like it. She did not take it back to the store because it had been 'on clearance' and there was 'no return'. She agreed that she put the bra away in her drawer, though she never intended to wear it.[40]
[40] Appeal ts 58 - 59.
As regards the text messages, the appellant said that she did not know about the content of the messages prior to the State's application to adduce them, and that Mr Hager had not gone through them with her. She said that she had not discussed the messages with Mr Stanford prior to entering her plea of guilty and, as far as she was aware, Mr Stanford was not aware of them at the time of the second meeting with Mr Hager.[41]
[41] Appeal ts 85.
The appellant said that references in the text messages to 'HB' and 'hamburgers' were references to pre-cooked hamburgers that she purchased in bulk and provided to friends. She said she heated the hamburgers in a microwave oven and kept them in sandwich bags for friends to collect. Text messages requesting hamburgers, including on Christmas day and late in the evening, were from such friends. She denied knowing that 'HB' is used as an abbreviation for 'half-ball'. She said sometimes she delivered hamburgers to those who requested them. She did not think of telling these people to go to a fast‑food outlet, because they had no money and relied on her.[42]
[42] Appeal ts 61 - 65.
The appellant's evidence that she was a hamburger supplier to her friends - plainly intended to explain away the inference arising from the text messages - was quite implausible. One example of the implausibility and the fictitious nature of the appellant's evidence before the court will suffice. The appellant suggested that she cooked hamburgers for one of her friends so that the friend could take them to the friend's son at school for lunch. One such explanation was given for a text message on 28 December 2018.[43] Another such explanation was given for 17 January 2019.[44] It was put to the appellant, and the appellant conceded, that the son was not going to school on 17 January - it was the school holidays.[45]
[43] Appeal ts 64 - 65.
[44] Appeal ts 68 - 69.
[45] Appeal ts 69.
The appellant stuck to her innocent explanation for the text messages despite the implausibility of her evidence being obvious from the cross‑examination.[46]
[46] Appeal ts 60 - 97.
In another message a friend asked for a favour with a hamburger because she was 'hungry' and had no 'wrapping paper'. The appellant explained this on the basis that it was her mother's birthday and the friend had promised to bring wrapping paper so that the appellant could wrap a present. A reference to 'ID' in the same message was said to be a reference to a photocopy of the driver's licence of the friend. The appellant said that the friend was applying to rent a house and the appellant was assisting her with the paperwork. When the friend could not come until after 6.00 pm, the appellant gave her mother some of her presents, but there were others she still wanted to wrap.[47]
[47] Appeal ts 78 - 79.
When asked whether she had considered obtaining an affidavit from one named friend who had sent messages asking for hamburgers, the appellant said that she did not know where that friend was. When told that the friend had been sentenced to 4 years' imprisonment for dealing methylamphetamine, the appellant conceded that she had seen the friend in Bandyup prison. She said that she did not speak to the friend and that they had ceased contact some time earlier.[48]
[48] Appeal ts 86.
With respect to other messages in which there is reference to getting a 'HW' and the cost of an 'HB', the appellant said that although these messages were on her telephone, they did not relate to her. She said that her sister, Ms Anderson, used her telephone at this time to make and receive messages from her partner. She accepted that 'HW' was a reference to a 'half-weight'. When asked how the partner would know that Ms Anderson had the telephone when sending a request for a 'HW', the appellant suggested that the partner may have rung first on the telephone and spoken to Ms Anderson.[49]
[49] Appeal ts 87 - 88.
Another series of messages related to a person named Amy and included requests for bread and milk. One such request was at 12.40 am. The appellant said that she would quite often get bread and milk for Amy. On one occasion, Amy requested 'as much bread as you have got' and a litre of milk. There was later an exchange about how many 'slices' the appellant had and whether Amy needed more. When it was put to the appellant that this was a reference to cash, the appellant denied it.[50]
[50] Appeal ts 89 - 93.
On other occasions, including once at 12.17 am, the appellant had asked whether Amy needed any milk, without there being a request. The appellant said that she did this because Amy would often run out of milk and need it for breakfast. When asked why she did not tell her friend to go to the 24‑hour service station, the appellant said that the service station was a lot further away.[51]
[51] Appeal ts 96 - 97.
Returning to the pre-sentence report, the appellant accepted that she had lied to the author of the pre‑sentence report when she said she had not used methylamphetamine since she was 18 years old. She said she did not lie deliberately but panicked because she had just found out what she had pleaded guilty to. She said that she was not someone who liked to lie and that was why she had telephoned to make a correction.[52]
[52] Appeal ts 102.
The appellant was asked whether Mr Hager had told her she would definitely get a suspended sentence. She said that '[h]e said [she] would get a suspended sentence. He said with the reduction because [she] pled guilty and because of mitigating factors, that it would be - the sentence would be around 18 to 24 months. And because of parole and the mitigating factors that it would be a suspended sentence'. She said that Mr Hager promised her that she would be getting a suspended sentence, and that she believed him. She disagreed with the proposition that, when interviewed for the pre‑sentence report, she had accepted responsibility for her part in possessing the drugs. She accepted that, at the second meeting with Mr Hager, where Mr Stanford was present, she had indicated that she would plead guilty.[53]
[53]Appeal ts 102 - 104.
The appellant was asked how she spent the time between the second meeting and entering her plea of guilty. The appellant said that she went and had a sleep in the car. She was tired, went and sat in the car and 'just had a sleep' for a while. The appellant said that Mr Stanford was with her while she had the sleep in the car.[54]
[54] Appeal ts 104.
The appellant said that there were mistakes in her affidavit. Where she stated in the affidavit that Mr Hager told her that she 'should' get a suspended sentence and that 'there was a very good chance' that she would, these were incorrect and Mr Hager actually told her that she 'would' definitely get a suspended sentence.[55]
[55] Appeal ts 105 - 106.
On 27 July 2022, after pleading guilty, the appellant sent a letter to the sentencing judge in which she stated 'the hardest thing I will ever have to do is say goodbye to my mum on Friday as it probably will be the last time I see her as she can't travel due to her disabilities' and 'I am willing to do anything to stay with my family'. When it was put to her that this showed that she knew she would not receive a suspended sentence, the appellant said that though she had believed Mr Hager when he told her that she would receive a suspended sentence, she had lost faith in him in the lead up to the sentencing.[56]
[56] Appeal ts 107.
The appellant said that it was only on the day of her sentencing that she realised she was going to gaol. She said that she was completely shocked because she thought she might still get a suspended sentence but was told by Mr Hager she was not going to get one. She said that Mr Hager told her it was too late to raise it with the judge because she had already pleaded guilty.[57]
David Stanford
[57] Appeal ts 110 - 111.
In his affidavit, Mr Stanford states that when he arrived at the appellant's house on 12 March 2019, Ms Anderson was present. He says the clip‑on hook on Ms Anderson's bra strap broke, and that he saw the appellant go to her bedroom and take a bra out of her drawer and give it to Ms Anderson as a replacement. He says he excused himself to give Ms Anderson some privacy and, when he returned, he saw that Ms Anderson had placed the broken bra into the rubbish bin.[58]
[58] Affidavit of David Anthoney Stanford sworn 7 October 2022 [3] - [6].
Mr Stanford states that on 24 May 2022, he drove the appellant to court. He says he waited downstairs and that sometime later, when the appellant came downstairs, she was distressed and said to him that Mr Hager had told her to plead guilty or she was going to gaol for 5 years, and that she had 10 minutes to make a decision. He says that the appellant was crying and shaking.[59]
[59] Affidavit of David Anthoney Stanford sworn 7 October 2022 [12], [16].
Mr Stanford states that he went upstairs with the appellant because she asked him for support. He says that the appellant spoke to Mr Hager in a shaky voice and said, 'I can't understand why you want me to plead guilty when I am innocent'. He said that Mr Hager responded by saying he had done hundreds of these cases, and the jury would find the appellant guilty and that she would be imprisoned for 5 years. He says that Mr Hager said that if the appellant pleaded guilty, she would get a reduction and not go to gaol. For pleading guilty she would be looking at 18 months' imprisonment,[60] but with mitigating factors of her mother and children 'there was a very good chance of a suspended sentence or an order and he would be pushing for that in sentencing'.[61]
[60] In examination-in-chief, Mr Stanford said the appellant would be looking at '18 to 24 months', see appeal ts 117.
[61] Affidavit of David Anthoney Stanford sworn 7 October 2022 [17] - [18].
Mr Stanford states that he told Mr Hager that the 'so-called' coded language in the texts was in fact references to milk, cool drink and hamburgers and that they had receipts for the hamburgers. Mr Hager said that the jury would not see it like that.[62]
[62] Affidavit of David Anthoney Stanford sworn 7 October 2022 [22].
Mr Stanford states that Mr Hager gave the appellant 10 minutes to make a decision and said that the appellant's best chance to return to her family was to plead guilty and get a reduced sentence. He says that the meeting went for about 10 minutes and that the appellant 'stood there physically distraught'.[63]
Cross‑examination
[63] Affidavit of David Anthoney Stanford sworn 7 October 2022 [23] - [24].
In cross‑examination, Mr Stanford said that, during the appellant's second meeting with Mr Hager, prior to her pleading guilty, Mr Hager had said that if the appellant went to trial, she would be looking at 5 years' imprisonment and that if she changed her plea to guilty, 'she might get a suspended sentence' (emphasis added). He did not recall the exact phrasing used by Mr Hager. He later accepted, when shown his affidavit, that the phrasing was that the appellant 'had a very good chance' of a suspended sentence.[64]
[64] Appeal ts 117 - 118.
Mr Stanford accepted that, before he attended the meeting with Mr Hager, he and the appellant had discussed the text messages about 'milk' and 'hamburgers'. He also agreed that those text messages were discussed in the meeting with Mr Hager that he attended. He says that he had gone with the appellant on occasions to collect milkshake toppings and hamburgers in packages of 50 from a bulk food and beverage distributor.[65]
[65] Appeal ts 118 - 119.
Mr Stanford said that between the meeting with Mr Hager at which he was present and the appellant returning to enter her plea of guilty, he and the appellant sat in her car in the car park. He accepted that the appellant was stressed and anxious and did not go to sleep.[66]
[66] Appeal ts 120.
It was put to Mr Stanford that at no time during the meeting that he attended did Mr Hager suggest to the appellant that if she pleaded guilty, she might get a suspended sentence. He disagreed and said that Mr Hager did make that suggestion. When it was put to Mr Stanford that what Mr Hager in fact said was that the best-case scenario was that the appellant would get a sentence that would result in her serving 18 ‑ 24 months in gaol before she became eligible for parole, Mr Stanford disagreed.[67]
Margaret Shepherd
[67] Appeal ts 120 - 121.
Mrs Margaret Shepherd is the appellant's mother. In her affidavit, she states that on 12 March 2019, the appellant picked up Ms Anderson in the morning, and both drove back to her house. She says that when the appellant and Ms Anderson were getting ready to leave for Perth, Ms Anderson's bra strap broke. Ms Anderson went to Mrs Shepherd's bedroom and told her that the appellant had given her one of her bras.[68]
Tony Hager
[68] Affidavit of Margaret Shepherd sworn 7 October 2022 [4].
In his affidavit, Mr Hager states that on 4 February 2022, he had a telephone conference with the appellant, during the course of which he explained to her the charge and the factual allegations. He says that he explained to the appellant that the evidence against her was strong, and that on conviction it was inevitable that she would receive a term of immediate imprisonment, but that it was open to her to plead guilty and receive a discounted sentence.[69]
[69] Affidavit of Tony Hager sworn 28 February 2023 [16].
Mr Hager states that he recalls the appellant being upset during the telephone conference. He recalls her telling him that Ms Anderson received a suspended sentence on a plea bargain. He explained to the appellant that such a sentence would only have been imposed due to Ms Anderson's limited role and her undertaking to provide a statement and give evidence against her co‑accused.[70]
[70] Affidavit of Tony Hager sworn 28 February 2023 [17].
Mr Hager states that on 9 May 2022, he received an application from the State seeking to lead evidence of text messages between the appellant and her co‑accused. He indicated that the application was opposed at a directions hearing on 12 May 2022. On the morning of 16 May 2022, he had a telephone conference with the appellant, during which he put to her what he perceived to be an overwhelming case against her. He recalls explaining to the appellant the inevitability of her conviction and a sentence of imprisonment. He says that he recalls the appellant made it clear that she did not wish to cooperate with the State by providing a statement. At the conclusion of the conversation, he recalls the appellant, who was very emotional, saying, 'I don't know what to do, I can't go to gaol, not guilty'.[71]
[71] Affidavit of Tony Hager sworn 28 February 2023 [27], [29], [33].
Mr Hager states that on 24 May 2022, he met with the appellant at court on two occasions. The first meeting took place around 10.45 am and lasted approximately 15 minutes. He says that, during that meeting, he explained the following to the appellant:[72]
[72] Affidavit of Tony Hager sworn 28 February 2023 [39] - [40].
(1)The likely reception into evidence and probative value of the text messages.
(2)The overwhelming prosecution case against her, having regard to the text messages, DNA evidence, and direct evidence of Ms Anderson.
(3)That there was some utility in her pleading guilty and providing an explanation for her offending, which would result in some reduction to a sentence of immediate imprisonment.
(4)If a conviction was recorded either after trial or on a plea of guilty, there was no circumstances in which the appellant would be sentenced to a suspended term of imprisonment.
(5)If a conviction was recorded, the likely sentence would be between 3 and 5 years' immediate imprisonment, with eligibility for parole, and the non‑parole period would be between 18 and 30 months, depending on the sentence imposed.
(6)If the appellant were to plead guilty, she would be sentenced at a later date.
(7)Mr Hager would have a discussion with the prosecutor to ensure he was not opposed to bail prior to the sentencing date.
(8)If the appellant were to proceed with her trial, the trial would start the following day.
(9)If the appellant were to proceed to trial and decide to give evidence, she would be cross‑examined on the text messages.
Mr Hager states that during the first meeting, the appellant became very emotional. He was of the view that she needed a short break to make a decision and suggested she go for a walk to clear her head and return with a final view. About five minutes after the appellant left, he received a text message from her, which read, 'If I plead guilty today I won't go to gaol today will I'. He responded, 'No'. He says that the appellant immediately replied, 'I'm coming back to cu now … can you please try to make sentencing for in July'.[73]
[73] Affidavit of Tony Hager sworn 28 February 2023 [41], [43].
Mr Hager states that soon after the text exchange, he had a second meeting with the appellant, at which Mr Stanford was also present. During the second meeting, he explained to the appellant that if she were to plead guilty, she would almost certainly remain on bail prior to her sentencing. The length of the sentence would likely be 3 ‑ 5 years' immediate imprisonment, with release on parole after 18 and 30 months of the sentence. He says that he explained to the appellant that she would not receive a suspended sentence in any circumstances if she was convicted. If she was to plead guilty, it would be preferable to inform the State before the application concerning the text messages was dealt with in the afternoon and before the jury was empanelled the following day.[74]
[74] Affidavit of Tony Hager sworn 28 February 2023 [45].
Mr Hager states that, at the conclusion of the second meeting, the appellant decided to enter a plea of guilty, and that she said so in clear words to him. He says he made clear to the appellant that she would be accepting the amended statement of material facts dated 10 February 2021. He says that he has a firm recollection of the appellant emotionally nodding in response. He did not ask the appellant to sign the bottom of the amended statement of material facts, which he accepts was a mistake and something he should have insisted on. He says that the appellant's instructions that she would plead guilty were clear and left him in no doubt as to her intentions.[75]
[75] Affidavit of Tony Hager sworn 28 February 2023 [46] - [47].
At the conclusion of the second meeting, Mr Hager says that he told the appellant to return to court in the afternoon at 2.15 pm. He told her that she would be arraigned and could enter her plea of guilty at that time. He explained that he would seek an adjournment to allow the preparation of a pre‑sentence report. He states that he did not advise the appellant that she would receive a suspended sentence if she pleaded guilty. He says that he did not pressure or bully the appellant during the meeting.[76]
Cross‑examination
[76] Affidavit of Tony Hager sworn 28 February 2023 [48].
In cross-examination Mr Hager said that he went through the text messages with the appellant after he received the s 31A application. He also went through the messages with the appellant when they spoke at court on 24 May 2022. He recalled speaking to her about text messages that contained references to 'HWs', 'HBs', 'hamburgers', and 'milk'. He said that the appellant told him that she had cooked hamburgers. He said that his advice to the appellant was that it would be difficult for the jury to accept that these were innocent references, particularly bearing in mind the reference to 'HWs' and the regularity of the references to 'hamburgers'.[77]
[77] Appeal ts 133 - 134.
Mr Hager accepted that when he had earlier called the prosecutor asking what the State's position would be if the appellant was to follow the same path as Ms Anderson, he was endeavouring to explore the possibility of a suspended sentence for the appellant. When asked whether he changed his advice when he spoke to the appellant on 24 May 2022, Mr Hager said that his advice was consistent that it was an overwhelming prosecution case against the appellant. He accepted that after he explained the strength of the case, the appellant was initially still saying that she intended to plead not guilty. He recalled telling the appellant that if she ran her trial, and if the trial proceeded, she would be convicted.[78]
[78] Appeal ts 135, 139 - 140.
It was put to Mr Hager that he did not go through the matters thoroughly in the very short period of the first meeting. He said that he went through the matters in a concise but sufficient way to explain the situation to the appellant. He disagreed that he induced the appellant by saying that if she continued the case, she would be convicted and sentenced to 5 years' imprisonment. Mr Hager said that he told her that immediate imprisonment was inevitable, and that 3 ‑ 5 years was the range, with parole eligibility.[79]
[79] Appeal ts 141.
Mr Hager recalled the appellant saying that she had to be with her family and that she could not go to gaol. He recalled the appellant asking why she could not get a suspended sentence like Ms Anderson. He did not recall the appellant protesting her innocence as she left the first meeting. He accepted that after the first meeting, he told the appellant to go off to clear her head, and that she later returned with Mr Stanford. He did not recall the appellant saying that she was innocent and not prepared to plead guilty. He accepted that the appellant's change of plea instructions to him was at the second meeting. He did not recall asking the appellant to indorse the statement of material facts. He said he did not ask the appellant to sign the indictment with a note of her intention to change her plea.[80]
[80] Appeal ts 143 - 146, 151.
Relevant legal principles
While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts have been prepared to set aside pleas of guilty:[81]
(1)Where the appellant did not understand the nature of the charge or intend to admit guilt.
(2)Where, upon the admitted facts, the appellant could not in law have been guilty of the offence.
(3)Where the guilty plea has been obtained by improper inducement, fraud, or intimidation.
[81] Borsa v R [2003] WASCA 254 [20].
In this case, the appellant contends that her case falls within the third category on the basis, effectively, that the integrity of her guilty plea was impugned by incorrect legal advice that she did not have any real prospect of acquittal at trial, and that she would be sentenced to a suspended term of imprisonment if she pleaded guilty. The appellant maintains that the advice was not only wrong but that it amounted to an improper inducement to plead guilty.
A court will act on a guilty plea when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, if the plea is entered in the exercise of a free choice. It is no easy matter for an appellant to persuade a court to set aside a conviction based on a guilty plea. Such attempts are approached with caution, bordering on circumspection. There is a strong public interest in the finality of proceedings, and a plea of guilty is taken to be an admission by a person of the necessary ingredients of the offence.[82]
[82] Larsen v The State of Western Australia [2019] WASCA 181 [45]; Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [115] ‑ [116] (Buss P), [171] ‑ [175] (Mazza JA), [255] ‑ [256] (Mitchell JA); Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] ‑ [104]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [153] ‑ [156].
It is open to an accused person to plead guilty on grounds which extend beyond the person's belief in his guilt. For example, a person may accept that on the available evidence there is a strong likelihood of conviction and that their best prospect of a reduced sentence is to plead guilty. Where a guilty plea is entered for reasons other than consciousness of guilt, it nevertheless constitutes an admission of all the elements of the offence and will not be set aside unless it can be shown that a miscarriage of justice occurred.[83]
[83] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [18]; MMC v The State of Western Australia [2018] WASCA 52 [69]; Rofail v The State of Western Australia [2019] WASCA 166 [18].
Ordinarily, an appellant's failure to appreciate the penalties available to a sentencing judge upon a guilty plea does not give rise to a miscarriage of justice that warrants setting aside a plea of guilty. In R vMurphy,[84] Herring CJ and Adam J said:
Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied.
[84] R vMurphy [1965] VR 187, 189.
In Murphy, the appellant pleaded guilty after being advised that she had little or no prospect of avoiding conviction. She was advised that if she pleaded guilty, she would not be sent to prison, whereas if she was sent to prison after being convicted at trial, she would probably lose custody of her child. This advice was described as being unduly pessimistic regarding the consequences of standing trial and unduly optimistic regarding the sentence if she pleaded guilty. Herring CJ and Adam J held that appellate intervention was not warranted in the absence of fraud, duress, or the like.[85] Sholl J would have held that a miscarriage of justice had occurred '[i]f I thought she was probably innocent, and that she pleaded guilty without reference to any consciousness of guilt, but because of a muddled idea that she would thereby keep the child'.[86]
[85] Murphy (189).
[86] Murphy (191).
In Gibson v The State of Western Australia, a conviction following a plea of guilty was set aside because the appellant had a flawed understanding of the alternatives available to him in circumstances where that understanding was crucially important. The appellant in that case had a cognitive impairment and limited understanding of English. He wrongly believed that he had only two options, being to plead guilty to a lesser charge and receive a short sentence, or to be found guilty after trial and receive a longer sentence. He did not appreciate that it was open to him to contest his guilt, with a possibility that he would be acquitted after trial. In Gibson, the central issue to be determined was whether the appellant entered his plea of guilty voluntarily; that is, in the exercise of a free choice, with sufficient understanding of the nature of the plea of guilty and the implications of that plea.
Appellant's submissions
The appellant submits that her plea of guilty was obtained by improper inducement on 24 May 2022. It is contended that that inducement was on the part of Mr Hager and was constituted by:[87]
(1)last‑minute advice to plead guilty in circumstances where the appellant had consistently maintained her innocence since the time she was charged;
(2)requiring the appellant to provide an answer as to whether she would change her plea in an unreasonably short period of time;
(3)insistence that the appellant provide instructions as to the plea in circumstances where she was in an emotionally distressed state;
(4)a misrepresentation to the appellant that if she proceeded to trial she would be found guilty and would receive a sentence of 5 years' imprisonment;
(5)a misrepresentation to the appellant that she 'could get' a suspended sentence if she pleaded guilty;
(6)telling the appellant that the judge and the prosecutor were awaiting her decision, thereby giving the impression that a change of plea was expected and that she should comply; and
(7)advice as to the strength of the prosecution case, which is said to be incompetent and wrong, in that the proposed defence witnesses and the appellant's protestations of innocence were wrongly ignored and/or rejected.
[87] Appellant's submissions [20].
The appellant submits that the fact that she did not assert her innocence between her plea of guilty and her sentencing is not dissimilar to Gibson, where the appellant did not protest his innocence during the same period. The fact that the appellant made statements to the pre‑sentence report author that indicated an acceptance of her guilt is said to be explained by the appellant taking on 'a persona of a convicted person' and thereby doing what was necessary to obtain a suspended sentence.[88]
[88] Appellant's submissions [27] - [28].
The appellant also submits that the fact that Mr Hager did not obtain unequivocal written instructions as to the appellant's change of plea supports a conclusion that the plea was not unequivocal or voluntary.[89]
[89] Appellant's submissions [30].
The appellant submits that Mr Hager was aware, or should have been aware, that the trial could not take place because:[90]
(1)he had not asked the appellant to expand or provide details of her initial instructions outlined in her emails in April 2022;
(2)he did not obtain a proof of evidence from the appellant or from the witnesses, consistent with her instructions and plea of not guilty;
(3)he did not competently prepare the appellant's case and defence for trial;
(4)he did not obtain the appellant's instructions regarding matters raised in the State's s 31A application;
(5)he had previously endeavoured to avoid a trial, in that in a conversation on 16 May 2022, he had advised the appellant that she would get a suspended sentence if she pleaded guilty and gave evidence against Ms Kreinbihl; and
(6)the appellant's defence case was not, and could not have been, adequately prepared for trial on 24 May 2022 because the matter was not ready to proceed.
[90] Appellant's submissions [31].
Disposition
In order to succeed on this appeal the appellant must establish that she was improperly induced to plead guilty. The elements of the claimed inducement to plead guilty set out at [97] are factual matters in dispute. If the appellant fails to prove those elements (or at least sufficient of them to constitute proof of inducement) her appeal must fail. This requires consideration of the evidence given on the appeal.
The key interactions between the appellant and Mr Hager are the two meetings that occurred on 24 May 2022, prior to the appellant entering her plea of guilty. The appeal depends critically on the court accepting the evidence of the appellant as to what she said occurred at those meetings, what her state of mind was at that time, what she knew about the evidence against her, and whether what occurred amounted to an inducement.
According to the appellant, she was told that she would definitely receive a suspended sentence if she pleaded guilty. That claim is not consistent with either the evidence of Mr Stanford or that of Mr Hager. It is also inherently implausible that Mr Hager would give such advice, as there was no realistic prospect of a suspended sentence, given the nature of the offence and the lateness of the appellant's plea of guilty. The fact that Ms Anderson received a suspended sentence did not support a belief on the part of the appellant that she could receive a similar sentence, given the obvious differences that Ms Anderson had pleaded guilty on the basis that she had limited involvement, had pleaded guilty at an early stage, and had provided significant cooperation to the authorities. In that respect Mr Hager gave evidence, which was unchallenged and should be accepted, that he explained to the appellant the distinguishing features which resulted in Ms Anderson receiving a suspended sentence (see [79] above).
The appellant also claims that she was given limited time to consider a change of plea and that, in any event, some of that time had been consumed by her taking a nap in the car. That evidence is inherently implausible if the appellant was, as she claims, distressed and emotional. It is also inconsistent with the evidence of Mr Stanford.
The appellant claims that no effort was made by Mr Hager to go through the prosecution evidence with her and elicit her response to that evidence. She also claims to be unaware of the details of the text messages prior to 24 May 2022. That evidence is inconsistent with that of Mr Hager, who claims that he did speak to the appellant regarding the evidence and, in particular, the text messages. It is also inconsistent with the evidence of Mr Stanford in that he said that, prior to driving the appellant to court on 24 May 2022, they had a discussion regarding the text messages.
Insofar as the appellant submits that the advice given by Mr Hager as to the strength of the prosecution case was incorrect, it is not necessary for this court to come to a final conclusion as to whether or not the appellant would inevitably have been found guilty on the evidence. It is sufficient that, on the basis of the DNA evidence and the evidence of Ms Anderson, it was well open to Mr Hager to come to the conclusion that the case against the appellant was a strong one. With the addition of the text messages, it was well open for him to come to a conclusion that the case was an overwhelming one.
The appellant's explanations for the DNA evidence and the text messages were highly implausible. It was well open to Mr Hager to conclude that a jury was unlikely to accept the appellant's evidence that references to 'HWs', 'hamburgers' and 'HBs' were not references to quantities of drugs. We are not satisfied that Mr Hager's assessment of the strength of the prosecution case was clearly incorrect, far less that it was incompetent.
The matters we have raised as to the implausibility of and inconsistencies in the appellant's evidence lead inexorably to the conclusion that the appellant was not a credible or reliable witness. It is impossible to accept the truthfulness, accuracy or reliability of what the appellant claims occurred at the crucial meetings. This, as counsel for the appellant correctly conceded in his oral submissions, means that the appeal must fail.[91]
[91] Appeal ts 155.
In contrast to the evidence of the appellant, the evidence of Mr Hager was consistent, plausible, and supported by his contemporaneous notes. We accept Mr Hager's evidence. Whilst it may well have been prudent for Mr Hager to have obtained a written acknowledgement of the appellant's instructions that she wished to change her plea and that she accepted the statement of material facts, that is an error of judgment that Mr Hager readily accepts. It does not cause us to doubt his evidence.
Our conclusions, based on the evidence, are as follows:
(1)Mr Hager did discuss the strength of the case with the appellant, both on 24 May 2022 and in earlier conversations.
(2)Mr Hager's assessment that the case was a strong one, and after notice of the text messages, an overwhelming one, was well open to him and was a view that was conveyed to the appellant.
(3)Mr Hager told the appellant that she would likely receive a sentence of between 3 and 5 years' imprisonment. He did not, at any point, tell her that she was likely to receive a suspended sentence. Far less did he tell her that she would definitely receive such a sentence, as the appellant contends.
(4)Whilst the decision regarding the plea was required to be made within a short timeframe, that was a function of the fact that the trial was due to commence. No doubt the appellant felt under pressure to make a decision, but that was pressure arising from the circumstances and not exerted in any improper way by Mr Hager.
(5)Whilst the appellant may well have continued to express her innocence, her decision to enter a plea of guilty was voluntarily made in the exercise of her free will and with a view to obtaining the best possible outcome for her.
(6)There was no suggestion when the plea was given that it was equivocal or reluctant.
(7)The claim by the appellant that her will was overborne and that she entered the plea of guilty on the basis of a misunderstanding as to the likely consequences is not borne out by her interview with the author of the pre‑sentence report. That report confirms that, at the time of that interview, the appellant accepted her criminal responsibility and was seeking to mitigate it. Her claims that she had taken on the persona of a guilty person are an unconvincing attempt to avoid an inconvenient truth.
(8)The material before this court does not raise any real question regarding the guilt of the appellant.
The appellant has not established that her plea of guilty was induced, in that it was not made in the exercise of her free will. She has fallen well short of establishing that there was a miscarriage of justice.
The grounds of appeal have no reasonable prospect of success.
The appellant filed the notice of appeal approximately four months out of time. The reasons for the delay are claimed difficulties in obtaining all of the relevant materials. The appellant's affidavit does not adequately explain the delay. In those circumstances, an extension should only be granted if it would amount to a miscarriage of justice not to do so. Given the lack of merit of the grounds of appeal, an extension should not be granted.
We would make the following orders:
1.The application for an extension of time to appeal is refused.
2.The application to adduce additional evidence on the appeal is refused.
3.Leave to appeal on both grounds is refused.
4.The appeal against conviction is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
13 NOVEMBER 2023
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