Soteriou v Police No. Scgrg-00-288

SOTERIOU v POLICE
[2000] SASC 256

Magistrates Appeal

1................ DUGGAN J....... The appellant pleaded guilty in the Adelaide Magistrates Court to an offence of driving a motor vehicle while there was present in her blood the prescribed concentration of alcohol. The concentration alleged in the complaint was .125 grams per 100 millilitres of blood. The appellant was fined the sum of $650 and disqualified from holding or obtaining a driver’s licence for a period of six months. She now appeals against conviction.

The charge was laid following an accident which took place in the city in the early hours of 20 January 1999. The appellant was travelling in a vehicle with two friends, one of whom was Fiona Shaw. Two other cars were damaged as a result of the accident.
Police officers attended the scene of the accident and made enquiries as to who was the driver of the vehicle in which the appellant was travelling. The appellant told the police officers that she was the driver of the vehicle. She explained in evidence given on the hearing of this appeal that her admission to the police that she was the driver was untrue. She said she made the false statement to protect Fiona Shaw who was the driver. She explained that Fiona Shaw did not have her P plates displayed on the vehicle and would have lost her licence. Ms Shaw is a single mother and the appellant was concerned that if she lost her licence she would not be able to provide transport for her four year old son. The appellant underwent a breath analysis test shortly after the accident when the reading referred to above was recorded.
I permitted fresh evidence to be called at the hearing of the appeal and, after some of that evidence had been called and the respondent had made certain enquiries, it was conceded by the respondent that the appellant was not the driver of the vehicle at the relevant time.
The circumstances in which a conviction consequent upon a plea of guilty can be quashed are discussed below. However, before addressing this issue, it is appropriate to refer to evidence given at the hearing of the appeal relating to the circumstances in which the plea of guilty was entered.
The appellant and her sister were called to give evidence by the appellant’s counsel. He also called Fiona Shaw’s mother. The respondent called the solicitor who acted for the appellant in the Magistrates Court.
The appellant gave evidence concerning the circumstances of the accident and her false statement to the police when she admitted she was the driver of the vehicle. Shortly after the accident she told her sister what had happened and, on the day of the accident, her sister went to police headquarters in Angas Street with the intention of reporting the fact that her sister was not the driver of the vehicle. One of the officers on duty told her that the police officers who attended the accident had not returned to the police station. She then left the police station without taking the matter any further.
Approximately two weeks later the appellant was served with the complaint and summons for the drink driving offence. She spoke to her sister who mentioned the matter to the sister’s lawyer who was attending to some matters on behalf of the sister at the time.
The appellant’s sister said in evidence that she spoke to her solicitor about the matter on the telephone. According to her evidence, the solicitor told her that if the appellant were to go back on what she said to the police “she would be perjuring herself and it could lead into imprisonment for her”. The appellant’s sister repeated this to the appellant.
According to the appellant, she also spoke to the solicitor on the telephone. According to her version he told her that she would be better off getting a six month suspension and a fine “and not perjuring myself and going to jail”.
About two or three weeks after this telephone conversation the appellant spoke to the solicitor in his office. She said he repeated the effect of the advice he had given her over the telephone. She gave him further details of the matter, including the fact that there were two other cars involved in the accident.
The appellant said that when she was given this advice she did not think in her own mind she had a choice in the matter. There is some doubt on the evidence as to whether she went and saw the solicitor again before the sentencing hearing or whether she simply spoke to him on the day of the hearing. The evidence renders it more likely that there was no other interview in the solicitor’s office. However, the appellant said that she gave the solicitor a version which she had discussed with Fiona Shaw, namely, that before they got into the car Ms Shaw told her that she was feeling unwell and it was decided that the appellant would drive the car. This was the version which the solicitor presented to the court.
The appellant stated in evidence that Fiona Shaw agreed to pay the costs of the solicitor and meet the demands of the insurance companies in respect of the damage to the other cars. However, there was evidence that Ms Shaw had failed since then to keep up the payments.
The solicitor conceded in his evidence that he had a poor recollection of these events. He said that if he did take notes of his conversations with the appellant, those notes are no longer on his file. He did not take signed instructions from the appellant. He confirmed that the appellant’s solicitor telephoned him about the appellant after the summons had been served. He could not remember whether the appellant’s sister provided him with the details of the matter or whether the appellant was the first to explain what had happened when she saw him in his office.
In any event, he did speak to the appellant in his office. She told him she had falsely admitted to the police that she was the driver. He said in evidence that in his view of the matter this story “didn’t gel for me”. He said he did not believe the appellant when she said she was not the driver. He said:
“I can’t remember, but I would guess I didn’t indicate why she should have a good hard think about her instructions because I certainly remember when I spoke to her for the first time I didn’t want to tell her why she should be having a good hard think about her instructions, because the reason why I was telling her to have a good hard think about her instructions was that frankly I didn’t believe her, and I didn’t want to be rude and say I think you’re a liar, and that’s why perhaps I minced words - maybe like using words to the effect ‘have a good hard think about your instructions’.”
The solicitor said that, from the beginning, he thought the appellant’s claim that she was not the driver was dubious. He explained that there were a number of reasons for this attitude. He said he found it quite incredible that Fiona Shaw was refusing to admit that she was the driver. He said he got the impression that the appellant was motivated by the fact that she might lose her licence. He said that the appellant was a slightly built female and with such a high reading it would be likely that she would have had a more impaired recollection of what had occurred. He also said that he was influenced in disbelieving the appellant’s version by reason of previous dealings with her sister whom he had found to be dishonest. He added that other clients had come to him with stories that they had not been driving at a particular time and attempting to put the blame on someone else.
The solicitor said that he did not discuss with the appellant why he had reservations about her version. He explained the reason for this:
“No, I don’t think I did indicate - in fact I’m certain I didn’t indicate to her what was causing me concern about it. To be completely frank about it, I didn’t believe her. I said I had considerable difficulties with her story and I didn’t want to come out bluntly and say, ‘I don’t believe you, I don’t think you’re telling me the truth’, and I’m constrained to say the reason I went about the first consultation of that matter was that at the time I was acting for her sister. Her sister had matters which appeared at that time to be proceeding to trial, I did not want to offend the family and therefore lose work which I thought was on the way from [the appellant’s sister], to be utterly frank about it. So I don’t remember going - in fact, I would reject the suggestion, if there is a suggestion, that I went into any detail about why I didn’t believe her, or why I was uncomfortable with the story.”
The solicitor conceded that he may not have given any advice to the appellant concerning action which might be taken against her by the insurers if she pleaded guilty to the offence of drink driving.
Appeal courts scrutinise appeals against conviction after a plea of guilty with considerable caution. As Kirby J pointed out in Liberti (1991) 55 A Crim R 120 at 122:
“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”
A number of the relevant cases are discussed by Lander J in R v Frantzis (1996) 66 SASR 558. It is for the appellant to establish a proper reason for setting aside the conviction (Ferrer-Esis (1991) 55 A Crim R 231 at 233). If a defendant pleads guilty without appreciating the nature of the charge or not intending to admit guilt or, upon the admitted facts, the defendant could not have committed the offence charged, the court may quash the conviction. (R v Forde [1923] 2 KB 400 at 403).
However, in deciding whether there has been a miscarriage of justice which warrants a quashing of the conviction, an appeal court is not restricted to the situations referred to in Forde’s case (Boag (1994) 73 A Crim R 35 at 37: R v Frantzis at 573). Many, perhaps most cases, will come within one or other of these categories, but they are not exhaustive of the examples of miscarriage of justice arising from a plea of guilty which will justify intervention by an appeal court (Meissner v The Queen (1995) 184 CLR 132 per Dawson J at 157).
In Meissner’s case the appellant was charged with attempting to pervert the course of justice by improperly endeavouring to influence another person to plead guilty to a charge of making a false declaration. The court defined the elements of the offence of attempting to pervert the course of justice in such a situation. It was held that it was unnecessary for the prosecution to prove that the person who pleaded guilty to the offence was not guilty of that offence.
In the course of their joint judgment Brennan, Toohey and McHugh JJ discussed the consequences of a plea of guilty. They said (p 141):
“Clearly enough, it is not sufficient for the prosecution to prove merely that the conduct of an accused had a tendency to induce a person charged with an offence to plead guilty to that offence. A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233:
........... ‘The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.’
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.”
Their Honours added (p 143):
“It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused’s free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.”
It is apparent that their Honours were of the view that a conviction recorded by a court following a plea of guilty to an offence by a person who had not committed the offence does not, of itself, result in a miscarriage of justice. Previous authorities had held that a miscarriage of justice would arise where the plea of guilty was not attributable to a consciousness of guilt (Boag at 37).
At the same time, however, Meissner’s case must be considered in the context of the issues in that case. The court was called upon to decide the circumstances in which pressure put upon a person by another to plead guilty to a charge will amount to the offence of attempting to pervert the course of justice. Whether or not a miscarriage of justice took place by reason of the plea of guilty was incidental to that principal issue. The court was not required to examine in detail the circumstances in which a court will set aside a conviction recorded following a plea of guilty.
In deciding whether there was a miscarriage of justice in the present case, it is relevant, though not decisive, that the appellant did not commit the offence to which she pleaded guilty. It is also relevant that she did not plead guilty out of a consciousness of guilt. But the matter does not end there. The events which led to the plea of guilty must be considered.
The appellant was concerned about the fact that she did not tell the police the truth. She mentioned this to her sister who went to the police on the day of the accident to tell them the truth. When she was told the investigating officers were not there, her sister left and did not pursue her attempts to speak to the police. However, the appellant’s sister did ring the solicitor and tell him about the matter, including the fact that the appellant was not the driver of the vehicle. According to the appellant’s sister, the solicitor told her that if the appellant went back on her word she would be perjuring herself and she could be imprisoned.
I do not accept that perjury was mentioned by the solicitor. On the other hand, I am satisfied that, as the solicitor himself said, he was quite unimpressed with the assertion that the appellant was not the driver of the car. He said he told the appellant’s sister that the appellant would have to have a “very good think about these instructions”. I am also satisfied that he mentioned the possibility of the appellant being jailed, not for perjury, but for making a false statement. I make this finding despite his assertion that he did not make this comment. I accept the evidence of the appellant and her sister that he mentioned the prospect of jail and that it had a considerable effect on her. Despite this information being passed on to the appellant, she remained of the view that she wished to tell the truth about the matter and say that she was not the driver.
According to the evidence of the solicitor, the appellant told him when she later gave instructions to him in his office that she had falsely stated to the police that she was the driver. The solicitor was still not prepared to believe her. It goes without saying that his belief was irrelevant in the sense that he was required to proceed finally on the basis of his client’s instructions. However it is clear that he felt strongly about the matter. He said that he felt unable to explain his reasons to the appellant for fear of losing legal work from her sister. Instead, he said he “minced words” by telling the appellant to go away and think about the matter.
In these circumstances there was not a full and frank discussion between solicitor and client. The appellant was not adequately advised. There was some confusion in her mind. I accept that the appellant left the solicitor’s office with the impression that the solicitor was telling her she had little option but to plead guilty and that she could not go back on what she had said to the police. I say “impression” because I am not prepared to find that this is how the solicitor put the matter to her. But in the light of his strong view that she was lying and his reticence to explain why he was advising her to think about the matter, I can understand how she formed this impression as to the effect of his advice. She said she felt she was left with no real choice in the matter and decided to change her instructions.
It would appear that what followed was done in haste because of the solicitor’s intended departure for overseas a short time after the plea was entered. It seems that the final instructions were given on the day of the hearing.
In my view, the plea which was entered in these circumstances could not be regarded as being made freely and voluntarily with sufficient knowledge by the appellant to make an informed decision. The appellant is a young woman who had not been in trouble with the law before this incident. She did not commit the offence with which she was charged and it is clear that when she consulted the solicitor her instructions were to that effect. For reasons which appealed to the solicitor and which he did not wish to communicate to the appellant, he did not accept her version as being truthful. I am confident in finding that the solicitor did not intend to pressure the appellant in an improper manner into changing her instructions and that he considered that he was acting in her best interests. However, I have no doubt that she considered herself to be under pressure. I bear in mind that in Meissner’s case it was held that pressure emanating from a legal adviser does not necessarily vitiate the plea. However the appellant was not only under pressure, but there were significant gaps in the advice which she was given. It was in these circumstances that she admitted to an offence which she did not commit.
In my view the exceptional circumstances of this case disclose a miscarriage of justice. The appeal is out of time, but the respondent does not oppose an extension of time if there has been a miscarriage of justice. An extension of time within which to appeal is granted up to the date of the filing of the notice of appeal.

The appeal will be allowed and the conviction and sentence set aside.

[2000] SASC 256

4 September 2000