Tamayo-Del-Solar v Director of Public Prosecutions
[2025] ACTSC 120
•28 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Tamayo-Del-Solar v DPP |
Citation: | [2025] ACTSC 120 |
Hearing Date: | 3 March 2025 |
Decision Date: | 28 March 2025 |
Before: | McWilliam J |
Decision: | (1) The application filed 22 November 2024, seeking leave to withdraw the pleas of guilty to Counts 1, 4 and 5 on the indictment dated 17 August 2023, is dismissed. (2) The matter is listed in the registrar’s list on 2 April 2025 at 9:30am for further directions to take a date for sentencing, including the question of whether a contested facts hearing is required. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to withdraw guilty plea to 3 counts of an act of indecency – underlying circumstances surrounding the plea – whether miscarriage of justice would result if plea not withdrawn – where facts supporting counts not agreed at the time pleas entered – where applicant later denies conduct constituting acts of indecency – where applicant had sufficient opportunity to consider charges – no miscarriage of justice found |
Cases Cited: | Decision Restricted [2024] ACTSC 285 Keenan v The Queen [2020] VSCA 105 Meissner v The Queen (1995) 184 CLR 132 Norvenska v DPP (Cth) [2007] NSWCCA 158 R v Gomez [2007] ACTCA 21; 1 ACTLR 145 White v The King [2022] NSWCCA 241 |
Parties: | Director of Public Prosecutions (Respondent) Augusto Ricardo Tamayo-Del-Solar ( Defendant/Applicant) |
Representation: | Counsel T Hickey ( Prosecution) J Masters ( Defendant) |
| Solicitors ACT Director of Public Prosecutions InPrivate Law ( Defendant) | |
File Number: | SCC 175, 176 of 2023 |
McWilliam J:
1․The applicant has pleaded guilty to Counts 1, 4 and 5 on an indictment dated 17 August 2023 (indictment). Those counts are as follows, with names anonymised:
(a)That between 6 and 9 May 2022, he committed an act of indecency on a person under the age of 16 years, namely “NF”.
(b)That between 8 May 2022 and 1 January 2023, he committed an act of indecency on a person under the age of 16 years, namely “NT”.
(c)That on 6 January 2023, he committed an act of indecency on a person under the age of 16 years, namely “NT”.
Facts alleged in case statement
2․The facts alleged in the case statement in respect of Counts 1, 4 and 5 of the indictment were as follows:
(a)During the relevant period, when the applicant and NF were alone in an elevator, the applicant rubbed NF’s breasts and drew in circles on her breasts.
(b)During the relevant period, at NT’s home, the applicant rubbed NT’s labia and vagina on top of her clothing.
(c)On the relevant date, in a medical waiting room, the applicant rubbed the buttocks of NT on top of her clothing.
3․Together with the fact that NF and NT were both under 16 at the time specified in the charge itself, this conduct constitutes the essential ingredients or elements of the three offences to which the applicant pleaded guilty on 28 March 2024.
Application in proceeding
4․By application filed 22 November 2024, the applicant has sought to withdraw his guilty pleas.
5․The basis for the application is that the interests of justice require that course to be taken, with the applicant relying on a distinction made in White v The King [2022] NSWCCA 241 (White) at [60] between an application to withdraw a guilty plea made before sentence, and one made after sentence (that is, an appeal from conviction notwithstanding a plea of guilty).
6․Alternatively, the applicant contends that there would be a miscarriage of justice if the applicant were not allowed to withdraw his guilty pleas. That alternative relies on the test articulated in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 (Gomez) at [38]-[40].
7․The basis for the applicant arguing that leave to withdraw the pleas is in the interests of justice is:
(a)At the time the pleas were entered, there were no agreed facts as to each count.
(b)There is a real question about the applicant’s guilt in respect of the pleas which have been entered.
(c)The applicant now wishes to defend the charges against him.
(d)It would be manifestly unfair to hold the applicant to his pleas where he did not agree the facts, did not have legal advice in relation to the facts before entering his guilty plea, and entered a plea in circumstances where he did not have a genuine consciousness of guilt.
8․The application was contested. The prosecution argued that the applicant understood the charges and the conduct that he was pleading to at the time the pleas were entered. All that had occurred was that the applicant had changed his mind. In those circumstances, there will be no miscarriage of justice in holding the applicant to his pleas.
Applicable principles
9․The applicable principles are those set out in Gomez at [38]-[42] (emphasis added):
38. In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge. In Meissner v The Queen (1995) 184 CLR 132 at 157, Dawson J said:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. (References omitted.)
39. Conformably with Dawson J’s analysis which, with respect, is in our opinion unimpeachable, expressions suggesting that a plea may be withdrawn where there is not a "consciousness of guilt", e.g. Marchando (2000) 110 A Crim R 337 at [4], must be read with some care: that phrase must be understood as meaning a voluntary and otherwise tolerable acceptance of guilt.
40. In general, the legal principles have been recently usefully summarised by the NSW Court of Criminal Appeal in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [21]-[27]. We reproduce what Basten JA, Grove and Howie JJ said in Appendix A.
41. Consistently with principle, it is not in every case that it must be shown that the accused has a fairly arguable defence or that there is a "real question" of his guilt to be tried. Two examples will make this point. Firstly, if a plea is shown not to have been made voluntarily then, without more, there would be a miscarriage of justice if the plea were permitted to stand. Secondly, if an accused who has pleaded guilty nevertheless asserts a version of the facts quite inconsistent with guilt before the sentencing judge, the plea should not be accepted, because the integrity of the legal process will have been undermined. In both examples, the necessity for integrity of the process compels the result even if the case for the Crown is otherwise overwhelming.
42. There may be other cases where the judge considers that, although the actual integrity of the plea is not compromised, nevertheless there are some unsatisfactory features of it and there is also such a potential for reasonable doubt to be held about the truth or validity of the prosecution case that it would affirmatively be against the interests of justice to require the plea to stand. That is to say, there would be a miscarriage of justice unless the judge intervened. It is in such cases that it is convenient to see the test as having a twofold character.
10․Gomez refers at [40] to an extract from Norvenska v DPP (Cth) [2007] NSWCCA 158 (Norvenska) being found in Appendix A. Appendix A constitutes [21]-[27] of that authority (emphasis added):
APPENDIX A
Extract from Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 15821. A plea of guilty to a criminal charge is undoubtedly a serious matter. Nowadays it is accepted as a basic requirement of a fair system of criminal justice that, at least in serious cases, and wherever reasonably practicable, an accused person should have access to legal advice before entering a plea. Nevertheless, the bulk of cases are dealt with on a plea of guilty and it is likely that the system would cease to operate in a timely fashion, were that to change. No doubt many people plead guilty without legal advice.
22. Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client’s best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.
23. It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant "did not appreciate the nature of the charge or did not intend to admit he was guilty of it": see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption.
24. The circumstances in which a plea of guilty may be withdrawn were considered in Maxwell v The Queen (1995) 184 CLR 501, but in a context where the primary issue was the right of the trial judge to reject a plea to a lesser offence than that charged. At 510-511, Dawson and McHugh JJ stated:
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.
25. Read in context, it may be seen that these principles were expressed in relation to the power of the trial judge to reject a plea, rather than as to the circumstances in which an accused may withdraw a plea. The latter point was more directly addressed in the joint judgment of Gaudron and Gummow JJ at 531, in the following terms:
There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.
26. ... these principles have been stated from time to time in differing language. However, it is not necessary to address the variations in expression. Many of the cases involved an appeal from conviction based on a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea. In principle, no stricter test should be applied to an application before conviction: see R v Middap (1989) 43 A Crim R 362 at 364 (CCA, Vic) and R v Parkes [2004] NSWCCA 377 at [49] (Hodgson JA).
27. It is also common to note the "principles of restraint" identified by Kirby P (Grove and Newman JJ agreeing) 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 ... .
In some circumstances, the circumspection may be based upon a concern that changes in plea may involve an attempt to manipulate the system to delay a feared conviction and sentence. However, no such issue arose in the present case and the matter should be approached on the basis that if the trial judge should have been satisfied by the applicant that he had been inappropriately advised and did not understand the charge, a miscarriage might well eventuate from an insistence on adherence to the plea.
11․The words emphasised in the extracts from Gomez and Norvenska are the matters that govern the assessment of the present application.
12․The applicant sought to rely upon appellate authority in New South Wales, which suggested a different test applicable in cases where the application to withdraw a plea of guilty was made prior to conviction and sentence. In White the NSW Court of Criminal Appeal stated at [60]-[62] (citations omitted):
60. We are comfortably satisfied from our review of the authorities that, although there has been a conflation of tests in some cases and some summaries of authority, the proper test to be applied where an accused seeks leave to withdraw his or her plea of guilty prior to conviction (a first scenario case) is whether the interests of justice require that course to be taken.
61. The judgments of at least Toohey J and Gaudron and Gummow JJ in Maxwell support this conclusion and, even if strictly dicta, are “seriously considered” in the sense referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. It follows that the decisions in Boag, Wong and Garcia-Godos must be regarded as wrongly decided and should not be followed in a case where an application is made for leave to withdraw a plea of guilty before conviction.
62. A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal. The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence. That was what Maxwell was all about.
13․There is a detailed discussion of the current state of the law in various jurisdictions in Decision Restricted [2024] ACTSC 285 (Decision Restricted) at [67]-[75]. White has not been considered at appellate level in this jurisdiction. The circumstances in Gomez fell within the case of an application to withdraw a guilty plea before any sentence had been passed and are therefore directly on point with the current case. It need hardly be said that single judges of this Court are bound by the appellate authority in the Territory even if it appears that the jurisprudence is evolving in other jurisdictions. However, even in Gomez the figurative door appears to have been left open by the language used in [42] (the words are emphasised in the extract above). The Court of Appeal there treated a specific kind of circumstance as being affirmatively “against the interests of justice”, immediately followed by a rephrasing, that “there would be a miscarriage of justice unless the judge intervened”.
14․Nevertheless, when that passage is read in the context of the foregoing paragraphs extracted above, what was said by the Court of Appeal at [42] is not sufficient to re-characterise the test and, as concluded by Baker J recently in Decision Restricted at [74], the applicable test remains that outlined in Gomez above.
15․Applying those authorities, the Court considers all the circumstances in which the plea was made. This includes whether the person was legally represented, the advice they were given, whether there was a mistake of fact or misunderstanding of the law, or whether there was some other factor establishing a miscarriage of justice, such as intimidation, duress or fraud. If the applicant understood the nature of the charge and intended to admit guilt (for whatever legitimate reason), he will be taken to have admitted the necessary legal ingredients or elements of the offence.
16․Relevantly for the circumstances of this case (discussed below), the reference in Gomez to a “voluntary and otherwise tolerable acceptance of guilt” is significant because it directs attention to the heart of the court’s consideration when dealing with an application to withdraw a guilty plea. As the extract from Meissner v The Queen (1995) 184 CLR 132 quoted in Gomez at [38] makes clear, there are many reasons why a person may enter a plea of guilty without believing that they are guilty (either in fact or at law). However, the task is ordinarily not directed to whether the person believes they are in fact guilty of the charge at the time of entering a plea. It is more concerned with whether the applicant made a voluntary and properly informed decision when deciding to accept guilt for the offence.
17․That is not to say that a person’s belief is irrelevant. There are, for example, cases where legal advice as to the law has led a person to take a particular view about their guilt and, as it transpires, the advice is mistaken. Rather, it is to explain that to establish a miscarriage of justice such as to warrant a grant of leave to withdraw a guilty plea, it is not enough for a person to come to court after entering their plea or pleas and to give evidence in the witness box that they do not believe they are guilty of the allegations as charged. That is because the justice system tolerates people who accept responsibility and guilt for conduct that they do not believe occurred. What it does not tolerate is holding people to a plea of guilty when circumstances come to light that affected their understanding of the charges and/or the voluntariness of their choice.
The circumstances of the applicant – is there any circumstance that points to a miscarriage of justice here?
18․As will be explained, the circumstances in their entirety do not give rise to any miscarriage of justice here.
Factual circumstances leading to the pleas of guilty
19․There was evidence before the court from both the applicant and his previous legal adviser. The applicant’s initial recollection of events was set out in an affidavit. However, when piecing his evidence together with what he said under cross-examination, the transcripts, and the evidence of his former solicitor (who was not required for cross-examination), it is apparent that the applicant’s recollection of what occurred as set out in the affidavit is unreliable.
20․I find the following facts established:
(a)The applicant had legal representation, including counsel’s involvement, from November 2023.
(b)The applicant’s legal representatives explained the allegations in the Crown case statement “in detail”, as well as the evidence to be led in support of it, to the applicant on 20 March 2024.
(c)The applicant’s legal representatives provided advice on 20 March 2024 that the case against the applicant in respect of the charges was strong, having regard to certain tendency evidence, CCTV footage and pictures taken from the surgery where NT alleged the conduct constituting Count 5 occurred.
(d)The legal advice given was to the effect that the applicant should consider instructing them to attempt to resolve the matter by way of a negotiated plea.
(e)The applicant’s legal representatives received those instructions on 20 March 2024.
(f)On 25 March 2024, the applicant attended court for the hearing of a number of interlocutory proceedings. His legal representatives again explained the Crown case statement and the evidence, including CCTV and tendency evidence, in detail.
(g)The court adjourned so that the applicant and his legal counsel could review the relevant CCTV footage relied upon by the prosecution and confer. The transcript indicates an adjournment of approximately 40 minutes.
(h)On the same day, upon advice consistent with that provided on 20 March 2024, the applicant instructed his lawyers to negotiate a resolution. This position was then communicated to the court. There were a number of pre-trial applications that had been scheduled to occur on 25 March 2024, and those applications were adjourned for three days to enable negotiations to occur.
(i)On 28 March 2024, the matter returned to court for the hearing of the interlocutory applications. Again, the applicant was legally represented by both solicitor and counsel. The hearing included an application by the prosecution to lead tendency evidence. The proposed tendency evidence was a matter about which the applicant had been previously advised. It was considered highly likely to be admissible in the proceeding against the applicant and weighed heavily in the minds of the legal representatives when advising the applicant about the strength of the prosecution case.
(j)Shortly before the hearing commenced, the applicant instructed his legal representatives to offer to plead guilty to Counts 1, 4 and 5 on the indictment in full satisfaction of the allegations made.
(k)The prosecution accepted the offer, and the applicant was arraigned on 28 March 2024. At that time, he pleaded guilty to Counts 1, 4 and 5 of the indictment.
(l)The pleas were expressly in contemplation of the parties negotiating the agreed statement of facts after the pleas had been entered.
21․The applicant believed that he was held in the cells for many hours before pleading guilty and that it was after 5:00pm when he made the decision. The suggestion appeared to be that a lengthy period in the cells somehow affected the applicant’s decision-making capacity and willingness to plead. He said it was a stressful day, and he felt very rushed. However, the applicant’s recollection is inconsistent with the transcript records on 25 March and 28 March 2024. On 25 March 2024, the applicant had given his instructions to plead by 10:35am, as that was when counsel for the applicant informed the court that the matter had resolved. Similarly on 28 March 2024, the arraignment was listed to commence at 2:15pm (as recorded at the conclusion of the transcript on 25 March 2024). The applicant pleaded guilty when the matter commenced at 2:39pm that day. That is why I am not satisfied that the applicant’s evidence on that point is reliable.
Did the applicant lack legal representation or was he given inappropriate advice?
22․Having reviewed the evidence as to what occurred, it is clear that the applicant was legally represented at all material times and had sufficient opportunity to consider his position without suffering undue pressure arising from time constraints. A number of days passed between the initial legal advice given and the applicant’s decision to plead. This included sufficient opportunity for quiet reflection on the advice given, away from lawyers and the pressure of the courtroom.
23․The applicant said that he agreed to plead guilty because he believed the advice from his solicitor that the Crown case was extremely strong. He now believes that the case was not as “clear and watertight” as his previous lawyers claimed. There were inconsistencies between statements of the complainants and their mother.
24․I do not accept that the advice given as to the strength of the case was inappropriate. In any event, even strong advice to plead guilty does not undermine the plea. As stated in Keenan v The Queen [2020] VSCA 105 (Keenan) at [52]:
52. A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends or in the hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown. Advice, even strong advice to plead guilty, does not undermine the plea. 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.
25․Keenan has been cited recently in this jurisdiction in Decision Restricted at [79]. The applicant here sought to draw parallels with the circumstances in Decision Restricted, where Baker J accepted at [85] that the applicant’s understanding of his plea was not sufficient to amount to a voluntary and otherwise tolerable acceptance of guilt. The applicant relied on the fact that the applicant in Decision Restricted also did not sign any statement of agreed facts prior to entering a plea of guilty, and further, that he was told that the statement of agreed facts could be negotiated after the plea was entered.
26․However, while it may be good practice to agree the facts prior to a plea being entered, or to at least have the person sign a document as to the elements that they understand will be essential to retain in any future statement of agreed facts, it is not a necessary pre-requisite before a plea may be voluntarily made. The facts of Decision Restricted involved the applicant pleading to assault occasioning actual bodily harm, when what he believed he was admitting to was facts that only amounted to common assault. The court accepted (at [83]-[84]) that when advice was given about negotiating the agreed facts, it should have been made clear to the applicant that whatever facts were ultimately agreed, they would need to retain an acknowledgment that the applicant inflicted actual bodily harm because that was an element of the offence charged. Instead, the applicant was advised that there was minimal difference between the two charges (Decision Restricted at [84]).
27․The applicant here is not in the same position. His understanding of the elements for which he was accepting responsibility was not mistaken. That matter is taken up in the consideration that follows next.
Did the applicant understand the nature of the charges to which he was pleading guilty?
28․Under cross-examination, the applicant accepted that his legal representatives had explained the prosecution case to him. That involved three allegations that the complainants had made about three separate acts of indecency. The allegations were that one occurred in a lift at a religious or cultural event, one occurred at the house of NF and NT, and one occurred at a podiatrist clinic. The applicant accepted those three alleged incidents were explained to him.
29․There does appear to have been a strategy to either attempt to roll the conduct up into one count instead of three, or to pick one of the counts (the conduct at the podiatrist clinic) and plead to that. However, the applicant was told by his lawyers on 28 March 2024 that the prosecution had rejected that attempt and that he would be required to plead to the three counts. The applicant knew that if he wanted to resolve the matter, he would need to plead to the three counts.
30․The applicant accepted that he told his lawyer to tell the prosecutor that he would plead to the three charges. He also accepted that he did so knowing that the three incidents were what he was pleading guilty to. The applicant had earlier accepted that he understood the three allegations made in the Crown case statement, a document which was substantively the same as the initial police statement of facts. A comparison of the two documents shows that the only differences were immaterial, in that the stills of the CCTV footage and footnotes were deleted.
31․The applicant said his understanding was that “I could still defend myself in some way of the charges”. The applicant explained that there were statements about violence, pushing and shoving that he did not accept. He said that in hindsight, the charges were totally exaggerated.
32․Giving weight to what the applicant said in cross-examination as well as the evidence of his former lawyer, at the time the applicant entered the pleas of guilty, he understood that he was pleading to three separate counts. The applicant also understood that the essential ingredients of the elements for which he was accepting responsibility were those set out in the Crown case statement, which he had read and had explained to him.
Did the applicant intend to plead guilty to each of the counts that were the subject of a plea?
33․The findings as to the applicant’s understanding of the counts to which he pleaded also establish that the applicant intended to plead guilty to each of the counts that were the subject of a plea. Under cross-examination, the applicant accepted that he voluntarily pleaded guilty to the three charges. He told his lawyer, “Let’s get this over and done.” He did not want to put the complainants in the spotlight or put them through trauma.
On the facts admitted by the plea, could the applicant not in law have been guilty of the offence?
34․No argument was put in support of the application that the applicant could not in law have been guilty of the offence. For completeness, the facts contained in the Crown case statement include the particulars set out at [2] of these reasons. They include the ages of NF and NT and establish that each was under the age of 16 years. It is uncontroversial that a person under the age of 16 cannot consent to the conduct. The remaining ingredients or elements of the offence are that:
(a)The applicant intentionally committed an act on the complainant; and
(b)The act was indecent (according to the standards of morality and decency held by ordinary members of the community).
35․For each of the three counts, the particulars contained in the Crown case statement leave no room for the applicant accidentally touching each of the complainants, and the location of the touching on each of the complainant’s bodies (respectively the breasts, vagina and labia, and buttocks) are inherently sexual parts of the female body.
Was the plea voluntary or was it a product of fear, duress, intimidation of fraud?
36․As seen from the discussion above, the applicant’s reasons for pleading guilty were pragmatic. He did not then, and does not now, believe that he is guilty of the conduct charged. He was feeling tired and frustrated by all the delays. He knew that by pleading, he could move on. He did not want to put the complainants through a trial. He wanted to get the whole process “over and done”. There may also have been some perceived advantage in entering a plea of guilty with a view to obtaining a discount on sentence, but this does not appear to have featured particularly significantly in the applicant’s thinking.
37․The applicant said that he had not realised that he was burying himself. He felt rushed and realised, when thinking about it later on, that the charges he had admitted were going to stay in print. That is not any misunderstanding of the legal effect of the plea itself. What the applicant described in the witness box falls into the category of regret. The applicant is now feeling the full force of what it means to accept responsibility for criminal conduct and the enduring consequences that a plea of guilty may have.
38․However, none of those matters individually or combined establish any circumstances that affect the integrity of the plea here.
Conclusion and orders
39․Taking into account all of the circumstances discussed above, I have found that the applicant was aware of the conduct constituting the elements of each of the three offences of an act of indecency, and that he voluntarily and deliberately pleaded guilty to each of the three counts. Given the strong public interest in the finality of litigation, more is required than that the applicant now disagrees with the advised strength of the case, that he still believes he is not guilty, and that he did not think about the longer term consequences of his decision to plead (including that it will be recorded in print that he did the acts to which he pleaded). The applicant has not demonstrated there would be a miscarriage of justice by requiring the pleas to stand.
40․To the extent that the applicant wishes to delete some of the additional facts from the statement of agreed facts – facts which do not constitute an essential ingredient of the offence – that can still be accommodated. There is scope for the applicant to either request that the additional layers of detail be removed from the statement of agreed facts (it does not appear that any request has yet been made of the prosecution). In the event of non-agreement, the parties can also proceed to a contested facts hearing.
41․For the above reasons, the Court orders as follows:
(1)The application filed 22 November 2024, seeking leave to withdraw the pleas of guilty to Counts 1, 4 and 5 on the indictment dated 17 August 2023, is dismissed.
(2)The matter is listed in the registrar’s list on 2 April 2025 at 9:30am for further directions to take a date for sentencing, including the question of whether a contested facts hearing is required.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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