Stropin v The Queen - [2021] SASCA 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STROPIN v THE QUEEN
[2021] SASCA 50
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 June 2021

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Appeal against conviction.
The applicant was charged with two counts of possessing child exploitation material contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The offending related to material that was located on the applicant’s mobile phone while he was on parole.
The applicant pleaded guilty to both counts and was committed for sentence in the District Court.
Shortly thereafter, he sought to withdraw his guilty pleas pursuant to s 119 of the Criminal Procedure Act 1929 (SA). The basis of the application was that, having viewed the material, the applicant’s solicitor considered that the material may not satisfy the charges.
The application was heard before a District Court Judge. The Judge viewed the material and concluded that in relation to at least some of the material, there was no arguable defence to the charges. The application was refused and the applicant was convicted.
The applicant appeals against his conviction on the basis that the Judge erred in refusing permission for him to change his plea from guilty to not guilty.
Held (by the Court), granting permission to appeal and dismissing the appeal:
1. The Judge applied the correct test in determining whether there was an arguable defence.
2. This was the exercise of a wide discretion and the applicant has not pointed to any material error, in fact or law, to show that the exercise of the discretion has miscarried.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a); Criminal Procedure Act 1921 (SA) s 119; Sentencing Act 2017 (SA) s 40(3)(a), referred to.
R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; R v Liberti (1991) 55 A Crim R 120; Meissner v The Queen (1995) 184 CLR 132; R v Clayton (1984) 35 SASR 232; Hinton v O’Dea (1977) 16 SASR 234; R v Stropin [2020] SADC 57; R v HJS [2020] SASC 142; House v The King (1936) 55 CLR 499; Jamieson v The Queen [2017] VSCA 140; R v Lobban (2001) 80 SASR 550, considered.

STROPIN v THE QUEEN
[2021] SASCA 50

Court of Appeal - Criminal: Kelly P, Doyle and Bleby JJA
THE COURT:
Introduction

The applicant, Steven Simon Stropin, was charged with two counts of possessing child exploitation material (‘CEM’) contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The offending related to CEM that was located on the applicant’s mobile phone, which was seized by police on 3 December 2018 when the applicant was on parole for previous offending of the same nature.
Count 1 related to a compilation file that was located on the applicant’s phone, which depicted children who appeared to be under the age of 14 years old. This constituted an aggravated offence. The second count related to seven images depicting children who appeared to be under the age of 17 years.
The applicant plead guilty to both counts on 7 January 2020 and was committed for sentence. Shortly thereafter, he sought to withdraw his guilty pleas. This application was refused by a Judge and the applicant was convicted and sentenced on 1 July 2020.
The applicant now appeals against his convictions on one ground. It is contended that the Judge erred in refusing permission for the applicant to change his plea from guilty to not guilty pursuant to s 119 of the Criminal Procedure Act 1921 (SA) (‘Criminal Procedure Act’).
On 29 January 2021, a Judge of this Court referred the application to appeal against conviction to the Court of Appeal for hearing and determination.
Procedural history of the matter
Given the appeal ground advanced, it is necessary to set out the history of the matter and how it proceeded through the lower courts.
The matter first came before the Magistrates Court on 10 December 2019, when the applicant was unrepresented. It was adjourned to 19 March 2020 to allow for a preliminary brief to be filed and/or charge determination to be made.
The matter was brought back before the Magistrates Court on 7 January 2020. The applicant was represented. He pleaded guilty to both counts of possessing CEM and was committed for sentence in the District Court on 6 March 2020. He was entitled to a sentencing discount of up to 40 per cent pursuant to s 40(3)(a) of the Sentencing Act 2017 (SA), as it then was. At the time that the applicant pleaded guilty, the brief of evidence relating to the charges had not been received. It was later received on 18 February 2020.
On 26 February 2020, the applicant filed an application in the District Court seeking permission to withdraw his guilty pleas pursuant to s 119 of the Criminal Procedure Act. The basis of the application was that the applicant had been advised that the images may not satisfy the charges.
On 6 March 2020, the matter was listed for Arraignment in the District Court. At the hearing, the respondent opposed the applicant’s application in the absence of sworn evidence and a basis supporting the application. This led to the matter being set down for argument.
On 16 March 2020, the applicant filed an affidavit sworn on 10 March 2020 in support of the application. In that affidavit, the applicant deposed of a number of matters, which were conveniently summarised by the respondent in written submissions on the permission application:
·at [5]-[7], the Applicant knew that if he pleaded guilty to the charges early, he would be entitled to the maximum discount of up to 40% under the Sentencing Act 2017;
·at [8], and as clarified during the Argument on 16 April 2020 at tx 3, the Applicant was informed that upon entering a guilty plea, his counsel would not have access to the CEM to provide advice on;
·at [9], the Applicant did not think the images were of young children as he had not actively searched for those types of pictures. However, police informed him that they believed the pictures to be CEM, so the Applicant wanted to obtain the best discount he could on the sentence imposed upon him;
·at [11]-[12], following the entering of the Applicant’s guilty pleas, the Applicant’s counsel, viewed the CEM found in the possession of the [applicant] and advised Applicant that the images were not obviously of young people, but the question of their age would be one that needed to be decided by a judge or jury; and
·at [13], the Applicant informed his counsel that he did not actively search for underage children and he did not believe the images were of underage children as they came from legal websites. The Applicant instructed his counsel to make the application.
The application was argued on 16 April 2020 before a District Court Judge. The applicant relied solely on his affidavit and no further evidence was provided in support of the application. The applicant stated that he was ‘keenly aware that the maximum available discount in sentence would be decreased to at least 30% if not 20% if he did wait’ for the evidence to be disclosed.
Counsel went on to state that he did not wish to make any submissions about the quality of the evidence against the applicant. However, he qualified that submission by adding that this is not a case where the images that allegedly comprise CEM are clearly of children. He stated that ‘they are not young children that there is no obvious defence to’.
Consequent on the argument which took place on 16 April 2020, correspondence between the Judge’s chambers and both parties ensued on the topic of whether there was any evidence from the applicant’s solicitor about the circumstances in which the applicant had decided to plead guilty. By an email dated 21 April 2020, the applicant’s solicitor advised the Judge’s chambers that he had advised the applicant that his (the solicitor’s) assessment of the materials was that ‘this was not a case of where the images were clearly of children’.
By email on 22 April 2020, the solicitor then acting sent a further email advising the Court that, after obtaining the advice of Senior Counsel, he would not be filing an affidavit to depose to that advice.
Therefore, by email on 27 April 2020, the Judge, through his chambers, advised the parties that he intended to view the materials. Neither party objected to that course.
On 8 May 2020 the Judge, again through his chambers, advised the parties that he had completed viewing the material and invited the parties to make any further submissions as appropriate before the Judge delivered a ruling.
Counsel for the applicant informed the Judge’s chambers that he had no further submissions to make but referred the Judge to a portion of the transcript from the earlier argument where counsel for the respondent had stated that there was potentially an issuable question to be tried.
The transcript to which the Judge was referred is set out below:
I stated this to my friend: for the purposes of this argument, your Honour can accept that there are those issues. My friend's submissions about those matters - and it is identified in my written submissions - is whether there is an issuable question to be tried. I think for the purposes of this argument your Honour can accept that. You can accept that there is an issuable question potentially. However, in my respectful submission, the prosecution say it is not determinative of this particular application.
On 15 May 2020, the matter came on again before the Judge for the delivery of the ruling. Prior to delivering the ruling, the following exchange occurred between the Judge and the applicant’s solicitor:
HIS HONOUR:    … as I understand the [applicant’s] argument, there's a potential defence in that the video and the images in question are not child exploitation material, that's what it comes down to.
[SOLICITOR]:     Yes, that's my advice to Mr Stropin.
HIS HONOUR:    Yes. That's the only ground upon which the application is made?
[SOLICITOR]:     Yes. There's always a concern in matters like this that you receive instructions that the material is not child exploitation material and when it's viewed, there's very different views that are put forward. That's why the application was made.
After some further discussion, the Judge delivered the ruling and handed down his reasons. The application was refused.
The Judge’s reasons for refusing the application
In considering the application, the Judge acknowledged that there are no binding authorities as to the interpretation of s 119 of the Criminal Procedure Act. His Honour turned to commonly cited authorities[1] which outline the general principles in relation to guilty pleas and the test to be applied when determining whether a guilty plea will be treated as final. There was no dispute that the Judge correctly summarised the common law principles applicable to an application to withdraw a plea of guilty.
[1] R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; R v Liberti (1991) 55 A Crim R 120; Meissner v The Queen (1995) 184 CLR 132; R v Clayton (1984) 35 SASR 232; Hinton v O’Dea (1977) 16 SASR 234.
After summarising the relevant principles, the Judge turned to the procedural history of the matter. This included various emails which had been exchanged between chambers and the parties as to whether there would be any further material tendered on the circumstances in which the applicant had entered his plea and on the issue as to the nature of the materials and whether or not they contained images which were clearly of children. The Judge then said:
It is clear from the authorities to which I have referred above, that there a number of factors to take into account, the most fundamental of which is whether there has been a miscarriage of justice.
Along with the applicant’s affidavit, his Honour then considered two affidavits sworn by Detective Brevet Sergeant Manson on 19 July 2019 and 28 November 2019, respectively. In those affidavits, Detective Manson deposed that he reviewed and categorised the images and video files located on the applicant’s mobile phone according to the ‘Oliver scale’. His opinion was that of the 11 videos, one was in category 4 and involved a child under the age of 14 years. In relation to the images, he expressed the view that four were of category 1, two of category 2 and one of category 4, and that they all involved a child under the age of 17 years. He also deposed that when he attended the Department of Corrections at Elizabeth on 3 December 2020, the applicant told him that he only looked up legal pornography sites.
Based on the material before him, his Honour stated that it was apparent that:
i.The defendant did not consider that he had images of underage girls on his mobile telephone. That is an irrelevant consideration. Either the images were or were not of females under 17 and/or 14 as the case may be;
ii.He had not been shown the specific images the police allege were of young girls at the time of instructing his solicitor that he would enter guilty pleas to the two counts. Accepting that is the case, nonetheless the images were on his telephone and there is no suggestion someone else had downloaded them or that he was unaware of them;
iii.It was not until after his solicitor had seen the materials that his solicitor told him that the images were not obviously of young girls and that the question as to the age of the girls would need to be decided by a judge or jury; and
iv.The application for permission to change his plea was filed on 26 February 2020, shortly prior to the Arraignment in this Court.
Overall, in accordance with submissions by the parties, his Honour considered whether there was an ‘issuable question’ to be tried. He approached the question by considering if there was an arguable defence. He did not consider the strength of the argument, only whether it was arguable.
With respect to the issuable question, his Honour concluded as follows.[2]
[44]I approach the “issuable question” by considering if, having viewed the images and the video, there is an arguable defence. I approach that question objectively and not by reference to any standard other than it is arguable. In particular, I do not consider the strength of the argument, only whether it is arguable.
[45]Having viewed the video and images in question, I consider that at least in relation to some of the images there is no arguable defence that they do not describe or depict a child under, or apparently under, the age of 17 years engaging in sexual activity or consists of, or contains, the image (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in production of which such a child has been or appears to have been involved and is of a pornographic nature.
[46]As to the video, it is a compilation of video clips which are obviously category 4 images however again, in my view there is no arguable defence that the video does not describe or depict a child under, or apparently under, the age of 17 years engaging in sexual activity or consists of, or contains, the image (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in production of which such a child has been or appears to have been involved and is of a pornographic nature. Further, I consider that at least in one case the child in question is under the age of 14 years.
[2] R v Stropin [2020] SADC 57 at [44]-[46].
Therefore, the application was refused.
We turn now to consider the sole ground of appeal advanced by the applicant.
Arguments on appeal
In argument on appeal, counsel for the applicant relied on three different aspects of the Judge’s reasons to submit that the Judge did not apply the correct test when determining whether permission should be granted pursuant to s 119 of the Criminal Procedure Act.
It was submitted that firstly, the Judge erred in his approach to determining the issuable question. Secondly, the Judge denied the applicant procedural fairness by not alerting the applicant to the view which he took of the material, and in not inviting further submissions as to how his view related to the consideration of the issuable question. Thirdly, the Judge treated the issuable question as determinative of the application, without addressing the relevance of the issue of consciousness of guilt and whether the plea entered was an informed plea to the consideration of whether there had been a miscarriage of justice.
Before turning to the applicant’s arguments, it is important to address the relevant principles which apply.
Section 119 of the Criminal Procedure Act states:
119—Change of plea following committal for sentence
(1)     A person who has been committed to a superior court for sentence in relation to a charge of an offence may only enter a change of plea in the superior court in relation to that charge with the permission of the court.
(2)     If the superior court gives permission for a change of plea, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.
(3)     The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.
The principles which apply at common law were helpfully summarised in the Judge’s ruling at [15]. For convenience, we reproduce those principles here:
1A plea of guilty involves an admission by a defendant of all the essential elements of the offence;[3]
2Courts approach attempts 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 rests on the public interest in the finality of legal proceedings and 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 all of the necessary legal ingredients of the offence;[4]
3As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred;[5]
4A person may plead guilty and be held to that plea although the plea is made “upon grounds which extend beyond that person’s belief in his guilt”;[6]
5The onus is on the defendant to establish grounds that to hold him or her to their plea of guilty would result in a miscarriage of justice;[7]
6There is every reason why an informed and deliberate guilty plea should be treated as final and that, after entry of such a plea, the defendant should face the necessity of persuading the Court that a miscarriage of justice would result if bound by the plea. That rule however rests upon an informed and deliberate plea, and not on a plea based, possibly, on an amorphous and uncritical understanding;[8]
7A court will not likely set aside a conviction founded on a plea of guilty and in general terms will only do so if it is established to the satisfaction to the court that the making of the plea has been induced by material mistake, or by some improper threat or promise on the part of a police officer or other person in authority and that but for the inducement to plead it would not have been made;[9]
8A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence;[10]
9Whereas the presence or absence of a genuine consciousness of guilt on the part of the defendant is a relevant consideration, the ultimate test is whether there has been a miscarriage of justice.[11]
[3]     R v Pugh [2005] SASC 427, [9] per Doyle CJ; R v Brooks (2007) 96 SASR 478, [68] per Doyle CJ quoting Maxwell v The Queen; (1996) 184 CLR 501, 510 per Dawson and McHugh JJ.
[4]     R v Liberti (1991) 55 A Crim R 120, 122 per Kirby P; R v Pugh [2005] SASC 427, [9] per Doyle CJ.
[5]     R v Pugh [2005] SASC 427, [195] per Gray J.
[6]     Meissner v The Queen (1995) 184 CLR 132, [157] per Dawson J.
[7]     R v Pugh [2005] SASC 427, [196] per Gray J.
[8]     R v Clayton (1984) 35 SASR 232, 234 per Wells J.
[9]     Hinton v O’Dea (1977) 16 SASR 234, 235 per Jacobs J.
[10] Meissner v The Queen (1995) 184 CLR 132, 141, per Brennan, Toohey and McHugh JJ.
[11] R v Pugh [2005] SASC 427, [46], [53] per Doyle CJ.

It is noted that the applicant did not contend that the Judge identified the incorrect principles which apply to the determination of an application under s 119.
While conceding that the general common law principles governing the withdrawal of guilty pleas still apply, the applicant submitted that the enactment of s 119 is a recognition that there are times where it is appropriate for the Court to allow a guilty plea entered into in the Magistrates Court at committal to be withdrawn upon arraignment. However, in light of the enactment of s 119, it was submitted that the general principles should apply equally, if not more liberally in circumstances when the application to withdraw is made early in the proceedings and the plea has not been acted upon in a substantive way.
In support of that submission, counsel for the applicant relied on what fell from Doyle J in R v HJS (‘HJS’):[12]
[77]In the case of an application on appeal to withdraw a plea of guilty following a conviction upon the basis of that plea, the test is whether the circumstances in which the plea was entered involved a miscarriage of justice. By reason of the solemn nature of the acknowledgment of guilt ordinarily inherent in a plea of guilty, and the high public interest in the finality of legal proceedings, the courts have generally approached attempts on appeal to set aside a guilty plea with significant caution.
[78]Similar considerations govern an application at first instance. However, in considering whether it is appropriate to exercise the Court’s discretion at first instance to permit a defendant to withdraw or change his plea, much may depend upon the timing of the application. While any application to withdraw or change an apparently informed and deliberate plea of guilty should be approached with some caution, the public interest in the finality of litigation is less of a concern when the Court has not yet acted upon the plea in any significant way. Indeed, prior to the relatively recent introduction of s 119 of the Criminal Procedure Act, the position had been that a defendant did not require the Court’s permission to change his plea prior to his first arraignment in a superior court.
[79]While s 119(1) now requires that a defendant who has been committed to a superior court for sentence obtain the permission of that court in order to change his plea in relation to the relevant charge, it also confers an unfettered discretion upon the court to grant that permission. It will be sufficient to obtain this permission that the court is satisfied that it is in the interests of justice that the defendant be permitted to change his plea.
(Citations omitted)
[12] [2020] SASC 142 at [77]-[79].
We would adopt the approach of Doyle J in HJS. Accordingly, we have approached consideration of the issue to be decided here on the basis that s 119 confers a very wide discretion in the Court to permit the withdrawal of a plea in circumstances where it is in the interests of justice to do so.
However, as this is an appeal against the exercise of a discretion, the principles enunciated in House v The King[13] are relevant. Before an appellate court can interfere, there must be an error identified in the Judge’s exercise of discretion. This may include an error of legal principle or fact, or the Judge taking into account irrelevant matters. In summary, it is not enough that we would have adopted a different course of action if in the same position.
[13] (1936) 55 CLR 499 at 504-505.
Therefore, it is necessary for this Court to determine whether there has been any error in the application of the general principles by the Judge, which has resulted in a miscarriage of justice.
Discussion
The applicant contends that the Judge, in determining the issuable question, erred by simply forming his own subjective assessment of the material rather than assessing whether there was an arguable defence.
The applicant also complains that he was not put on notice that the issuable question may be decided against him particularly in light of the prosecution concession made during the course of oral argument quoted at paragraph [19] above. Had defence been put on notice, it was submitted that they could have put forward further arguments to dissuade his Honour from that conclusive view.
As submitted by the respondent, the prosecutor’s concession must be seen in context. The conduct of the applicant’s application to withdraw the plea, up until the Judge’s decision to view the material, was focused on the conflict between the parties as to whether the video and images constituted CEM. By reference to the police’s characterisation of the material, the prosecution clearly disputed the contention that the material was not CEM.
It was in the context of that dispute that the Judge, with the consent of both parties, or at least without objection, decided to view the images himself.
The issue between the parties was the very issue which the Judge had to resolve.
In the course of making submissions about the conflict, and conceding that there was an issuable question potentially, the prosecutor referred the Judge to the general principles which apply to an application to withdraw a plea and referred to the relevant authorities.
It can be seen from the Judge’s reasons that the correct principles were identified before he turned to resolve the only real issue before him, which was whether there was an arguable defence.
After referring to the observations of the Court in Jamieson v The Queen,[14] the Judge then considered whether, having viewed the images, the applicant had an arguable defence. The applicant did not object to that course.
[14] [2017] VSCA 140.
It is implicit that, in the context of the dispute, it was necessary for the Judge to form a view. In that sense, it could be said that in doing so, he formed a subjective view. However, the test he applied was the correct one. Namely, he asked whether, having viewed the images, there was an arguable defence. He did not delve into the issue of the strengths or weaknesses of any defence, only whether, on the material, there was an arguable defence. That was the proper course to take.
We consider it significant that before and after viewing the material, the Judge invited the applicant to make further submissions. The applicant did not. Even after hearing argument, the Judge raised again with the applicant’s solicitor on 15 May 2020, before delivering the ruling, whether there was any other ground on which the application to withdraw the plea had been made. The applicant’s solicitor confirmed that there was not.
In these circumstances, it is not surprising that the focus of the Judge’s reasons was directed towards the resolution of the question as to whether there was a triable issue.
In making the submission that he was denied procedural fairness due to the failure of the Judge to put him on notice as to the issuable question, the applicant relied on what fell from the Court in R v Lobban[15] in the following paragraphs:
[21]There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge.
[22]The same critical question arises in respect of matters of a personal nature put forward by an offender in mitigation of penalty. If issue is taken by the Crown, the offender is on notice that a different view is being put to the judge and that the judge might act on either view. In such circumstances, there is no requirement that a judge give an indication that the matter advanced in mitigation might not be accepted. Once on notice, it is a matter for an offender whether to call evidence to support a particular submission that is in dispute.
[23]Leaving aside matters disputed by the Crown, submissions as to personal matters put in mitigation of penalty stand in a different position from submissions concerning the criminal conduct. The court does not usually have the assistance of verified statements. Pre-sentence reports are largely based upon information from an offender. The Crown is frequently not in a position to challenge particulars of a personal nature advanced in mitigation. As a matter of sentencing practice, generally speaking judges accept personal matters put forward in submissions unless they are inherently implausible or are, to the knowledge of the offender, contradicted by other material before the sentencing judge. Occasionally, the credit of an offender may be so badly tarnished that it will be obvious to the offender that the sentencing judge is unlikely to accept at face value anything that the offender says by way of mitigation. Sentencing proceedings must be both practical and fair. Bearing in mind the many personal matters often advanced in submissions by way of mitigation, the existing practice achieves both objectives.
[24]For these reasons, if a submission as to personal circumstances advanced in mitigation is not disputed by the Crown, or an offender is not on notice by some other means that a submission might not be accepted, in my opinion an offender is ordinarily entitled to assume that a sentencing judge will accept the submission at face value unless the judge indicates otherwise. The unfairness of a judge rejecting such a submission without notice is readily apparent.
[15] (2001) 80 SASR 550.
The difficulty with the applicant’s submission is that it is clear from the transcript of the proceedings that the applicant was on notice as to the very issue he now complains of. It was the only reason that the Judge determined to view the material. Having done so, the applicant twice declined the opportunity to make any further submissions on the topic. For these reasons, we do not consider there is any substance in the applicant’s complaint that the Judge denied him procedural fairness.
Turning now to the applicant’s third complaint, we consider that the reason the Judge did not dwell on the issues whether the applicant had entered an informed plea out of a consciousness of guilt was because it was never raised as an issue before him. Having been specifically asked whether there was any other basis on which the application was brought, besides the conflict in relation to whether there was an issuable question to be tried, the applicant confirmed that there was not.
It is hardly surprising then, that the Judge reached the conclusion that there was no miscarriage of justice. This is even more so when regard is had to the material which was before the Judge which indicates that the guilty plea could be attributable to a consciousness of guilt.
The material before the Judge included the following:
·The Magistrates Court Information and summons, which contained a clear statement of the nature of the charges of possessing CEM.
·Two interviews with the police on 3 December 2018 and 7 August 2019 in the course of which the applicant chose to comment upon the material the subject of the charges.
·The fact that the applicant was himself on parole for the very same offence of which he was charged.
·The fact that the applicant stated, under caution when questioned about the material, that he had believed he had looked up legal sites, knew that his parole condition was not to access ‘child porn’ and that he did not believe that he had been accessing child pornography.
·The fact that he also admitted accessing a number of websites with the title ‘tryteens.com’, ‘motherless.com’ and ‘youngthroats.com’ and told police that the persons depicted in those videos on the websites would usually state what their age was.
·The fact that in a subsequent interview the applicant acknowledged he had searched using words such as ‘school cum compilation’, which returned the result of the video titled ‘lollipop’.
·The fact that, at the conclusion of the final interview, the applicant acknowledged that he looked like he was going to do ‘more time’ and when offered the opportunity to speak to legal services before appearing in court, he replied, ‘there’s no point’.
The Judge was also entitled to take into account the fact that the applicant’s solicitor had declined to submit any affidavit addressing the circumstances in which he had appeared for the applicant when the applicant first entered his plea in the Magistrates Court. There has been no suggestion that the applicant’s solicitor acted contrary to or beyond his instructions, either in having the matter called on for an early plea or at the time when the pleas were entered. In this respect, it is also notable that the applicant took steps to have the matter called on early for the very purpose of entering the pleas in order to ensure he would obtain the maximum discount.
In light of all this material, which includes the applicant’s own admissions and the procedural course the matter took in both Courts below, we consider there was never a real issue that the applicant did not enter guilty pleas on an informed basis after taking legal advice and with a consciousness of guilt on his part. Nor did the applicant’s counsel ever seek to argue to the contrary. This conclusion is reinforced by the fact that, when invited to raise any other ground on which the application was made, other than the issue of whether there was an arguable defence, none was raised.
In these circumstances, we consider it unsurprising that the Judge did not focus on that in his ruling.
Conclusion
We grant permission to appeal. However, as this was the exercise of a wide discretion and as the applicant has not pointed to any material error, in fact or law, to show that the exercise of the discretion has miscarried, we dismiss the appeal.