Tasmania v Chatters
[2017] TASSC 73
•3 April 2017 (Parties Only)
[2017] TASSC 73
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Chatters [2017] TASSC 73
PARTIES: STATE OF TASMANIA
v
CHATTERS, Heath Lance
FILE NO: 375/2015
DELIVERED ON: 3 April 2017 (Parties Only)
DELIVERED AT: Burnie
HEARING DATES: 15, 16, 23, 30 March 2017
JUDGMENT OF: Porter AJ
CATCHWORDS:
Criminal Law – Procedure – Pleas – General pleas – Plea of guilty – Withdrawal and restoration of plea – Generally – Withdrawal of unequivocal pleas of guilty entered when represented by counsel – Principles to be applied.
R v Gomez [2007] ACTCA 21; Thalari v The Queen [2009] NSWCCA 170, 75 NSWLR 307, applied.
Day v Police [2005] SASC 200, 92 SASR 1; R v Buchanan [2016] QCA 33, considered.
Aust Dig Criminal Law [3091]
REPRESENTATION:
Counsel:
Crown: M Wilson
Applicant: In person
Solicitors:
Crown: Director of Public Prosecutions
Applicant: N/A
Judgment Number: [2017] TASSC 73
Number of paragraphs: 56
Serial No 73/2017
File No 375/2015
TASMANIA v HEATH LANCE CHATTERS
REASONS FOR JUDGMENT PORTER AJ
3 April 2017
Introduction
This is an application under s 356(a) of the Criminal Code for leave to withdraw, before sentence, pleas of guilty, and to plead not guilty. Mr Chatters appeared in this Court on 30 August 2016 before Estcourt J, and was represented by counsel. He pleaded to an indictment containing six counts, but with the third count as an alternative to the second. The pleas were as follows:
1 Armed robbery – guilty.
2 Abduction – not guilty.
3 Assault by deprivation of liberty (alternatively to count to 2) – guilty.
4 Assault – guilty.
5 Indecent assault – not guilty.
6 Rape – guilty.
The Crown accepted the plea of guilty to the alternative third count, and later entered a nolle prosequi in respect of the fifth count. All charges arose out of a series of events on 25 September 2015. The basic allegations are that Mr Chatters went to a service station in Devonport close to 10pm where, armed with a knife, he robbed a female attendant of about $200. He then forced her into his car and drove to a caravan park cabin. He took her inside. Some time later he grabbed her by the hair and dragged her to a bedroom and pushed her onto the bed, where he had vaginal sexual intercourse with her without her consent. Before leaving the service station, the complainant had activated her duress alarm. Police found Mr Chatters' vehicle at the caravan park and forced an entry into the cabin, disrupting the sexual assault. The complainant ran to officers crying out for help.
After the pleas were entered, the matter was adjourned to 5 September 2016 to enable the facts to be stated and submissions in mitigation to be made. On that day, counsel told the sentencing judge that some difficulties had arisen, and sought an adjournment, indicating that advice by another lawyer may be the solution. Since that time there have been a number of mentions and directions hearings, in the more recent of which Mr Chatters has been unrepresented. An application for leave to withdraw the pleas was spoken of, but it was not until 10 February 2017 that it was made by Mr Chatters orally. Mr Chatters was unrepresented before me.
I heard evidence from Mr Chatters. The Crown tendered affidavits of two lawyers who acted for Mr Chatters, Ms Kirsten Abercromby and Mr Evan Hughes. They are from the one firm; Ms Abercromby acted first before handing the file to Mr Hughes. Both gave evidence. I have a recording of the Supreme Court proceedings when the pleas were entered. It was agreed that, if I decided it was necessary as a matter of law, I may have regard to the Crown papers filed on 2 June 2016, and to a written statement of Mr Chatters (exhibit D1), in which he sets out his version of the events the subject of the charges. He wanted me to know what he had to say about the Crown case. D1 was initially taken in on a confidential basis.
At the end of the hearing, I adjourned the matter to 23 March 2017. I needed to consider the extent to which I should have regard to the Crown case, and to D1. On 23 March, I said that I had reached the view that I could properly have regard to both. On 30 March I dismissed the application, and said I would later publish my reasons. These are those reasons. In reaching the conclusion that the application should be dismissed, I made due allowance for the fact that Mr Chatters was unrepresented, although I note that he had advice from a senior Legal Aid lawyer about how he should approach this application. He also had access to another Legal Aid lawyer during the hearing. As questions of credibility were involved in resolving the matter, I kept in mind the risk of "unconscious" bias, given that Ms Abercromby and Mr Hughes are criminal lawyers who frequently appear in this jurisdiction.
The law
As was pointed out in R v Gomez [2007] ACTCA 21 at [36], the circumstances in which accused persons have been permitted to withdraw pleas of guilty, and in which judges have not accepted such pleas, are so various that it is not surprising that many formulations of a supposed test have been stated. As described in that case, the test is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn. See also Lawson v The Queen [2011] NSWCCA 44, Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, R v Stevens [2011] SASC 69, Weston v The Queen [2015] VSCA 354. Put another way, the essential question is whether the plea of guilty is attended by such unfairness as to warrant a new trial: R v Chiron [1980] 1 NSWLR 218 at 241, R v Gadaloff [1999] QCA 286 at [47].
The primary concern is with factors that may affect the integrity of the plea. The types of cases which would involve a miscarriage of justice, and which are discussed in the authorities, include:
· the accused did not appreciate the nature of the charges;
· the accused did not intend to admit guilt;
· where the admitted facts do not make out the charge;
· where an accused is induced by threats or other improper conduct to plead guilty, or is led by imprudent and inappropriate legal advice to do so.
It has been said that there must be some identifiable factor that indicates the plea was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: Lawson v The Queen (above) at [33]. As to the expression "a genuine consciousness of guilt", the court in Gomez, (Gray, Madgwick and Cowdroy JJ), first set out a passage of the judgment of Dawson J in Meissner v The Queen (1995) 184 CLR 132 at 157:
"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."
Thus, a plea, even if made solely for pragmatic reasons, and only in the hope of gaining a significant sentencing discount, can, nonetheless, be regarded as a valid and binding admission of guilt: Kumar v The Queen [2013] VSCA 297 at [14]. In Gomez, their Honours at par [39] went on to say that the phrase "consciousness of guilt" must be read with some care; it must be understood as meaning a voluntary and otherwise tolerable acceptance of guilt.
Later the court said:
"43 It is generally understood that a plea of guilty is a serious matter that normally has consequences, sufficing to dispose of the question of guilt. When an accused person voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, it will be an unusual case in which a judge will consider permitting its withdrawal.
44 In such a case, if there is no real question to be tried, in the sense of no fairly arguable reason to doubt the prosecution case, then, notwithstanding any less than wholly desirable circumstances surrounding the decision to plead guilty, there will be no miscarriage of justice if leave is not given to withdraw the plea."
There is a suggestion that before a judge will entertain an application to withdraw a freely made admission of guilt on the basis that it was motivated by the hope or expectation of technical advantage, the judge would need to be persuaded by evidence that the accused did not intend by the plea to accept guilt for an offence of which be believed himself to be guilty: Kumar v The Queen [2014] VSCA 102 per Nettle and Redlich JJA; Almond AJA at [17]; Weston v The Queen (above) per Redlich JA at [109]. However, this was doubted by the other two members of the court in Weston; Whelan and Kaye JJA, as being inconsistent with 10 cited authorities, along with the statements in Meissner that I have set out above. I respectfully agree.
Lastly, as Kirby P put it in R v Liberti (1991) 55 A Crim R 120 at 122, 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 also Thalari v The Queen [2009] NSWCCA 170, 75 NSWLR 307 at [33].
Of course, it is for Mr Chatters to demonstrate proper grounds, and he must persuade me that leave should be granted. A "good and substantial reason" must be established for a court to grant leave: Thalari (above) at [33].
A short history
The following outline is not contentious. On the evening of 25 September 2015, Mr Chatters was arrested in the caravan park cabin. The complainant was still in the room when police arrived. Mr Chatters was taken to the Devonport Police Station. Police contacted Ms Abercromby who agreed to give advice to Mr Chatters. She appeared for him in an out of hours session in the Magistrates Court.
In the few weeks after his arrest, Mr Chatters instructed Ms Abercromby that he wanted to plead not guilty. Ms Abercromby was concerned about Mr Chatters' mental health, and after some effort, obtained legal aid for a psychiatric report. It was arranged that Dr Ian Sale see Mr Chatters, and Dr Sale provided a report dated 30 May 2016. At some point in this period, pleas of not guilty were entered in the Magistrates Court, pending receipt of the report. The purposes in seeking the report were to investigate Mr Chatters' fitness to plead and a possible defence under s 16 of the Criminal Code. After Dr Sale's report was received, Ms Abercromby asked Mr Hughes, her supervisor in the firm, to take over the file as she found Mr Chatters to be a difficult person to deal with.
Dr Sale's report details Mr Chatters' background and detail given to him by Mr Chatters about the relevant events. Dr Sale noted a long history of alcohol and substance use, mainly alcohol and cannabis. Mr Chatters revealed that on the day of the alleged offending, he had used excessive amounts of Lyrica and alcohol. (Lyrica is pregabalin, which is mainly used for the treatment of epilepsy and neuropathic pain.) Dr Sale found no evidence of any specific psychiatric disorder, and no support for a s 16 defence. He noted that Mr Chatters' long history of offending and his dislocated background suggested the likelihood of an Antisocial Personality Disorder complicated by substance and alcohol abuse.
As to the offending, Dr Sale noted that in apparent contradiction to what his instructions had been to his lawyers, Mr Chatters advised that he had not previously met the complainant. Mr Chatters essentially denied any wrongdoing. Dr Sale noted Mr Chatters' recall of events tended to be patchy, and said that the consumption of an unknown quantity of Lyrica, another prescribed analgesic, and alcohol "may … contribute to Mr Chatters' patchy recall and perhaps even misinterpretation of further events during that day". Later in the report Dr Sale repeats that the consumption of the medications and alcohol may have caused a state similar to intoxication and thereby had an effect on Mr Chatters' recall of the events, and may have caused him to misinterpret things.
Armed with Dr Sale's report and the Crown papers, Mr Hughes started on a series of discussions with Mr Chatters at the holding cells at the Supreme Court in Burnie, in the Launceston reception prison, and by telephone from Mr Hughes' office to Risdon Prison. Mr Hughes estimates that he spent in excess of five hours discussing the case with Mr Chatters. Mr Chatters has not disputed that there were a number of discussions. It is the content of those discussions that is in dispute, a point to which I will return.
On 12 August 2016, Mr Hughes wrote to the office of the Director of Public Prosecutions putting a without prejudice proposal to resolve the charges on the indictment. That proposal involved pleas of guilty to count 1, count 3 in satisfaction of count 2, and count 6, the proposal being that counts 4 and 5 not be proceeded with. On 15 August 2016 Mr Hughes wrote to Mr Chatters at Risdon Prison, confirming the "instructions as per our telephone attendance of the 12th August with respect to the indictment". Mr Hughes told Mr Chatters he had written to the DPP's office putting forward the position with the hope of resolving it, and would advise of the outcome in due course. The DPP did not accept the proposal. A counter proposal was made in terms of the course which was ultimately adopted. Mr Hughes' evidence is that he spoke to Mr Chatters about that counter proposal, and was instructed to accept it.
The matter was next before this Court on 30 August 2016. Mr Hughes was on leave and arranged for Ms Abercromby to appear for Mr Chatters. She saw him in the cells beforehand. There does not seem to be any real dispute about much of what happened during that meeting, but it is Mr Chatters' motivation and state of mind which is the issue. Mr Chatters told her he thought that the complainant's statement had been doctored, a statement he had made to Ms Abercromby much earlier. As a result, Ms Abercromby used her mobile phone to ring Mr Hughes on his mobile phone, and had her phone in loud speaker mode. Mr Hughes was at that time in a supermarket.
During the conversation, Mr Chatters said that he may be going to change his pleas. Versions of the conversation differ slightly but the essential thrust is that Mr Hughes reinforced that his advice was to plead as had been arranged. It is common ground that Mr Chatters then said that he was only joking. However, his demeanour at that time was a matter of dispute. Ms Abercromby says that when that comment was made, Mr Chatters winked at her. This is denied. But it does seem implicit in his evidence that he confirmed he understood the advice, and agreed that the arranged pleas be entered.
The events in Court on 30 August 2016 when the pleas were entered, are shown by a combination of the Court video recording and a transcript of proceedings as further explained by Ms Abercromby's unchallenged evidence. When the proposed course in relation to the indictment was outlined to Estcourt J in Mr Chatters' absence, his Honour suggested that it was best if Ms Abercromby stand next to Mr Chatters and prompt him as to each plea. During the time the pleas were taken Mr Chatters was in the dock with Ms Abercromby on the other side of the rail. The video shows them both looking at a document, presumably the indictment. The following is what happened.
Count 1When asked to plead, Ms Abercromby said to Mr Chatters words to the effect of, "under the agreement this is a plea of guilty". Mr Chatters then said, "I'd say guilty".
Count 2"Not guilty".
Count 3Mr Chatters – "Is that guilty?"
Ms Abercromby – "That's a guilty".
Mr Chatters – "Yep, guilty".
Count 4Mr Chatters – "Not guilty".
Ms Abercromby then asked his Honour for a moment. She spoke to Crown counsel in order to confirm her understanding of the arrangement, and then spoke to Mr Chatters along the same lines as she had in relation to the first count. She asked his Honour if the count would be put again, and it was.
Mr Chatters – "Guilty".
Count 5 "Not guilty".
Count 6 "Guilty".
It can be seen that although Mr Chatters had to be guided through the process, in particular in relation to the plea to count 4, there is no question of an equivocal, ambiguous or qualified plea of guilty: see Marlow v The Queen [1990] Tas R 1 at 13-14. I make this point because at one point in his argument, Mr Chatters put the proposition that his pleas were equivocal.
The applicant's case
The factual basis for the application is best explained by setting out parts of Mr Chatters' evidence-in-chief:
"Well initially from the start I always wanted to plead not guilty to all charges. I instructed Evan Hughes and Kirsten Abercromby of that. I maintained that view throughout twelve months or longer and the whole time and every time I came up to court rather than entering a plea Mr Hughes would stand up and get the matter stood down even if I instructed him that I wanted to plead not guilty and he'd get it stood down and then come back to me n slowly over time he just kept talking to me n saying listen you have to plead guilty you have to do this my – his advice was to plead guilty all this stuff he said for whatever reason they'll just find you guilty anyway.
…
I kept sayin I didn't want to [plead guilty]. I wanted to plead not guilty because there was things that happened that negated the robbery. … I explained to Evan my defence of what happened and he never really listened.
…
During that time, I was down (indistinct word). I'd been suffering an infection; I had cellulitis, blood poisoning, and ended up in hospital on a drip getting treated. That makes you dizzy and confused and stuff, …
…
He'd offered me a plea deal with the prosecution, and initially I say 'no, I didn't want to do it', and he said 'I couldn't do that; I had to look at it and accept it'. And it – it just wore me down, and he kept saying things like 'you're guilty, just plead guilty, you done it, just say you done it, do this, do that'. Every time I said I wanted to plead not guilty, or I wanted to argue certain facts in the case.
…
[On 30 August 2016] I was just – this – this is all the stuff that was running through me mind. Pretty confused. With Evan – offering sentence ranges and he was really trying to scare me into [pleading] and saying if you don't plead guilty they'll find you guilty, you'll get 14 years or something like that, and they won't do this, they won't do that. If you plead guilty he said, accept a plea deal, this will happen, this will happen. It was just – I was pretty confused and then with the infection. I didn't really know what to do. I had a lawyer who wasn't listening to me."
This basis for the application was explained and enlarged on during later evidence and argument, as follows:
· Mr Hughes would not let him "present a statement of facts" with his explanation of events, saying "No, I don't want to hear it." Mr Hughes would not listen to anything he "had to say or [his] statement of events". He was never allowed to argue any facts of his case, and had not been allowed to present any to Mr Hughes.
· Mr Hughes kept telling him that what he was saying was "pure fantasy".
· Mr Hughes did not verify anything he did actually say to him, such as that he had an accident in a car which was why he had gone to the service station, and that his father and brother were due at the cabin later that evening.
· Mr Hughes did not give him a copy of Dr Sale's report, but only read parts of it to him. "I believe that Sale's report was held from me so that [Mr Hughes] could use it for this purpose, to try and discredit me."
· Mr Chatters "threw in" the plea of not guilty in the middle of things because he was confused. This confusion was compounded by his infection.
· In a discussion with Mr Hughes about two weeks before the pleas were entered, Mr Chatters was disputing the facts that made out the charges, and Mr Hughes said, "Don't worry about that, we'll nut that out later".
· He pleaded guilty because he was very confused about the advice he was getting.
The last point seems to be a reference to an assertion he makes that Ms Abercromby said to him that if his version of events were accepted, "the charges would dramatically change at trial, or be dropped altogether". He suggested in his evidence that this was said on more than one occasion. As to Mr Chatters' version of events relating to the charges, as noted earlier, I received in evidence a handwritten statement from him; D1. He said he wrote it out before the pleas were entered. He was going to give it to Mr Hughes but said that Mr Hughes was not interested in even hearing a verbal account, let alone anything in writing.
The Crown's evidence
The salient parts of Mr Hughes' lengthy affidavit are as follows. Mr Hughes supplied to Mr Chatters all the Crown papers, with the exception of a medical report concerning the complainant. He withheld it as it contained vaginal diagrams and his experience was that "these documents are occasionally stolen from prisoners and 'trafficked' within the gaol". He did not give to Mr Chatters Dr Sale's report but read it through to him and explained its content, meaning and effect. On that occasion, Mr Chatters acknowledged that he had gaps in his memory, and that parts of the night "were a blank". Mr Hughes obtained CCTV footage from the service station and showed Mr Chatters what he thought to be the relevant parts.
Mr Hughes estimates that he spent in excess of five hours discussing the case with Mr Chatters. He says they developed a good rapport, and joked and laughed from time to time. In his affidavit, Mr Hughes set out a number of matters told to him by Mr Chatters about the complainant's conduct, the essence of which was that the complainant was a party to the robbery and willingly went with him to the caravan park, and the sexual intercourse was consensual. Mr Hughes says that Mr Chatters seemed more interested in how long he might receive by way of a term of imprisonment when making his decision as to how to manage his case, rather than the likelihood of acquittal in a trial.
Mr Hughes says that on at least three occasions, he gave advice as to the elements of each charge. That included a detailed explanation of the concept of consent under the Code, and the notion of 'free agreement'; an explanation that Mr Chatters remembers being given. Mr Hughes satisfied himself that Mr Chatters understood what was involved as far as the elements of each crime were concerned, particularly on 12 August when he received final instructions to put the plea proposal to the DPP's office.
Mr Hughes explained in detail on a number of occasions, the way in which the Crown case would be presented at trial. He described it as being comprised of "book-ends", the first being the surveillance footage which shows Mr Chatters pulling his garment hood over his head, and brandishing a knife. It shows the complainant leaving with Mr Chatters still holding the knife. The second "book-end" was the finding by police of the complainant in a very distressed state, and her statements immediately made to officers by her. Mr Hughes' advice was that given the strength of the prosecution case, the strongest mitigating factor available was to save the complainant from giving evidence; "this would have an impact on any eventual sentence, providing him with a significant discount".
When Mr Hughes received a telephone call in the supermarket from Ms Abercromby on 30 August 2016, as referred to earlier, Mr Chatters said that he was going "to change his plea" and plead not guilty. He asked Mr Chatters whether he realised that they had put a proposal to the Crown which had been accepted and he was about to appear in court. Mr Chatters laughed and said that he was "only joking" and not being serious. He said to Mr Chatters words to the effect that he should not mess with him like that, that he was giving him a heart attack and that it was not a nice thing to happen given that he was on leave and in the supermarket. All of this suggested to Mr Hughes that not only had Mr Chatters understood the charges, understood the case and understood his pleas, but was comfortable enough with the situation to joke about changing the arrangement when he had no intention to.
On 5 September 2016, Mr Hughes saw Mr Chatters in preparation for the plea hearing that day. Mr Hughes became concerned when discussing the comments on passing sentence relating to a prior conviction of Mr Chatters in November 2002. Mr Chatters asserted that he was not guilty, or at least not responsible for a number of the material facts set out in the comments. When questioned about this, Mr Chatters told Mr Hughes that he had been tricked into pleading guilty. When going through the Crown statement of facts with Mr Chatters, he repeated some of the original instructions given about the complainant's behaviour. Those instructions had been given before the CCTV evidence was available. Mr Hughes reminded him that he may have some difficulty recalling some of the events, given his own statements to Mr Hughes, and his use of substances on the night. He told Mr Chatters that a plea of guilty required an acceptance of the material facts that made up the charge, and that if he was now changing his instructions, there might be difficulty representing him.
Mr Hughes' affidavit continues:
"Mr Chatters said that he had 'been thinking' and '12 years was just too much' and that it was not enough of a discount to plead guilty and that he "might as well just take it on" [sic].
All of this evidence about events on 5 September was not challenged in any way in Mr Chatters' cross-examination of Mr Hughes. Mr Chatters cross-examined Mr Hughes at some length, much of the questioning being repetitive and sometimes difficult to follow. Mr Hughes unwaiveringly adhered to his affidavit evidence that he had given detailed advice about the elements of the crimes, about the unlikelihood of Mr Chatters' version raising a reasonable doubt, and about the potential advantage of pleading guilty. Early in the cross-examination Mr Hughes said that he had gone through the evidence with Mr Chatters carefully and properly, Mr Chatters accepted that the case against him was strong, and upon reviewing that evidence and the advice given, Mr Chatters instructed him that he wished to enter pleas of guilty to the charges that the Crown ultimately accepted. Mr Hughes disagreed with Mr Chatters that he had always disputed the charges. He said he went through Mr Chatters' recollection of events "many times", and denied there were times when he put his hands over his ears and said, "I don't want to hear this; this is pure fantasy."
Mr Chatters suggested that at some point before the pleas were entered, Mr Hughes had said that they could "nut out later" the facts that Mr Chatters was disputing. In making this suggestion, Mr Chatters meant all material facts. Mr Hughes accepted that he had made that comment, but said it related to one specific fact that was peripheral, and not to facts relevant to the elements of the crimes. Mr Hughes said he was aware that Mr Chatters had a medical condition, but one which was not a blood infection. He recalled Mr Chatters complaining about the treatment he was receiving in prison for that condition, and advised Mr Chatters about what he could do about it. Mr Hughes said Mr Chatters did not seem confused or dizzy at any time.
Mr Chatters expressly put that he had "never ever admitted any guilt". Mr Hughes replied, "Yes you did. You acknowledged that the charges were made out and that you instructed me to enter your pleas of guilty." Mr Hughes acknowledged that Mr Chatters did not sign anything to that effect, saying, "No you didn't and … that's my fault for perhaps trusting you beyond what I probably should have [indistinct words] … perhaps it's part of the problem with the phone link thing, but I understood you to have come to that – those instructions with the benefit of considerable advice, all of the evidence and respectful [sic] time spent discussing the case with you."
I have already covered relevant aspects of Ms Abercromby's evidence. Additionally, in her affidavit, she says that before she left the cell area to go into court on 30 August 2016, Mr Chatters made some comments to her to the effect that they had met 10 years ago, and that on one evening they had consumed alcohol together to excess. Ms Abercromby says that the first time she met Mr Chatters was on 26 September 2015, and found his statement to be very odd. She chose not to correct him as it was unimportant to her at the time. Mr Chatters did not challenge this evidence.
In her evidence Ms Abercromby said that she understood there was only one occasion on which she was present with Mr Hughes and Mr Chatters together in a room, but she did not recall it; she had no memory of it. Ms Abercromby said that the indictment, as it stood, was slightly confusing to Mr Chatters, something which she found unsurprising. In cross-examination, she said she did not recall telling Mr Chatters what may happen if his version of events was true and accepted. She recalled being asked for a sentence indication if he went to trial and was found guilty. It was put to Ms Abercromby that she had been present with Mr Hughes on a number of occasions during which she was "disagreeing with the wording of the charges".
Ms Abercromby repeated that she was aware of one meeting, but could not recall the detail. She has no memory or recollection at all of being told by Mr Chatters about his skin infection. She did recall a discussion between Mr Chatters and Mr Hughes on the telephone on 30 August 2016, about the possible length of the sentence. She disagreed that her advice was different from Mr Hughes', saying that her advice was certainly to plead not guilty initially because of the time pressure to enter a plea in the Magistrates Court, and because of the possible mental issues.
Discussion
There is no need to attempt to resolve all of the factual disputes. For reasons I will explain, I find Mr Chatters not to be a credible or reliable witness. I find no justification at all for doubting anything that Mr Hughes and Ms Abercromby have said. Their evidence is coherent, and objectively probable. On the issue of the instructions to negotiate pleas with the Crown, Mr Hughes' evidence is substantiated by a letter of confirmation sent to Mr Chatters. I unhesitatingly accept their evidence where it conflicts with that of Mr Chatters.
I find what Mr Chatters generally says about his discussions with Mr Hughes, and about his state of mind at the time of pleading, to be inherently improbable. For instance, in the absence of any relevant history between the two, it makes no sense that Mr Hughes would not listen to him in the ways described, and was intent on using Dr Sale's report to discredit him. More particularly, as to Mr Chatters' credibility and reliability, there are a number of issues that are important to my assessment. The first is his assertion that Mr Hughes at no time allowed him to give his version of the relevant events. At the same time as he persisted with that line throughout the hearing, at one point he said:
"I've got [a statement] written out. I've had it there for months. … I couldn't trust the man. Why would I give it to him? … At the start I did give him material but he didn't follow it up. I gave him the whole statement. I told him everything that happened, but I left probably two details out of it, because I wanted to see if I could trust him."
It is also relevant to note that Mr Chatters' written statement that I have, contains much of the material that Mr Hughes refers to in his affidavit as instructions given to him, and discussed between them.
The next issue concerns the entry of the pleas. At the same time Mr Chatters says he was confused when pleading because of the different advice he was getting, Mr Hughes' attitude, and his asserted illness, there are suggestions in his evidence that he deliberately pleaded guilty as some form of protest or disruption. Early in his evidence-in-chief, he said:
"And then when it got to the pleas, having to plead, and I told [Mr Hughes] I'd never plead guilty to rape and it – it got to one charge and I thought it was the rape charge and I said No, not guilty even against Evan's advice. I didn't want to do it, and that's why I said that in the middle of things and then [Ms Abercromby] leans over to me and says no, no, you have to say guilty to that one. And I just didn't want to do it, I just felt pressured."
Another issue is the reliability of Mr Chatters' recollection. On a number of occasions during his evidence, he fairly clearly suggested that he saw Mr Hughes in the cells on the morning of 30 August 2016. He seems to be confusing this with the morning of 5 September. An illustration is an occasion on which he was talking about Mr Hughes going over the wording that maintains each charge, with him disagreeing. Mr Chatters continued:
"And then he ended up – because I wouldn't agree with what he wanted me to do he said well don't worry about that we'll nut that out later. He said let's just go up and plead now and get that out of the way and then we came up and pleaded and I threw the not guilty in there because I was just confused, I didn't want to do it."
Another instance occurred not long after. In cross-examination, the following exchange occurred:
"And you've just given some evidence about the conversation that was had on the 30th before the pleas were entered but you had indicated under cross-examination that the extent of that conversation insofar as recanting or entering pleas of not guilty was to say maybe I'll change my pleas - ?.....That's on the phone conversation, we'd had conversations actually here on the 30th.
But Mr Hughes wasn't here in person on the 30th of August was he?.....With Kirsten Abercromby. Well it must've been with Kirsten."
There are two further instances of a similar confusion. I do not need to set them out but they appear at pages 96, 115 and 122 of the transcript. A rather stark example underpinning my concerns happened in the course of the application itself. After I reserved my decision on 16 March 2017, as earlier noted I adjourned the matter for mention to 23 March. An outstanding issue was whether or not I referred to the Crown papers and to Mr Chatters' written statement. On that day, among some other requests, Mr Chatters asked whether audio recordings of conversations between Mr Hughes and him were available from the prison. He suggested they would assist his cause. This request has to be viewed in light of the fact that the issue was addressed by Mr Hughes in the last paragraph of his affidavit, and in response to a question asked of him by Mr Chatters in his evidence.
In his affidavit, Mr Hughes says that he attempted to obtain the audio recording from a person in Internal Affairs of Risdon Prison, "but unfortunately legal phone calls between practitioners and clients are not recorded". In Mr Hughes' cross-examination on 15 March, the following exchange occurred:
"QYes, I believe you're a good actor Mr Hughes, but I still know what was said and what wasn't and as to the relevance I suppose that's for the court to decide.
AWell I did try to obtain the Arunta phone recordings Mr Chatters from the prison, because I was hoping that the prison might actually have an audio recording of you and I talking."
Mr Chatters has had Mr Hughes' affidavit since about 8 March 2017, and he had the transcript of Mr Hughes' evidence of 15 March 2017, on the next day.
Resolution
As things stand, without treating the strength of the Crown case and the viability of Mr Chatters' defence of complicity and consent, as issues as such, I would dismiss the application on the basis that I am not satisfied that a good reason for leave to withdraw the pleas has been made out. I am not satisfied that Mr Chatters pleaded guilty because he was pressured into it in any way, or that any medical condition contributed to the situation. Indeed, I am affirmatively satisfied that his instructions were listened to and understood, and that he was not subjected to any bullying or pressure. Mr Hughes may well have persisted in giving him advice about the wisdom of pleading guilty, but I am quite satisfied that nothing inappropriate or untoward occurred.
Although there is a plea of not guilty to a charge to which a plea of guilty was supposed to be entered, I am not satisfied that Mr Chatters was as confused as he makes out. He did not have a note of the pleas for himself, and seems to have been reliant on Ms Abercromby. A degree of uncertainty would be expected.
To the extent that it is raised, I am not satisfied that the advice given by Mr Hughes was flawed in any way. I am affirmatively satisfied that it was appropriate. It seems to me that given the material in the Crown papers, and given the defence sought to be raised, advice that pleas should be entered as they were, in the hope of securing a reasonable discount for saving the complainant from giving evidence, and possibly for the general utilitarian value of the plea, was sound. It was far from flawed, imprudent or inappropriate. Although it is sufficient if I am not satisfied about Mr Chatters' assertions, I should say that I think the truth of things is as revealed in the statement Mr Hughes says Mr Chatters made on 5 September 2016: that Mr Chatters had been thinking; 12 years was just too much, that it was not enough of a discount for a plea of guilty he "might as well just take it on".
There is some tension between the authorities about the extent of the relevance of the prosecution case, and the viability of a suggested defence. In Ross on Crime, 7th ed, at 1123 [16.215], it is suggested that a common thread through the cases is that whether the accused is in reality guilty or innocent is not an important consideration. In my view, that much must be accepted. However it is clear from Gomez (above) that where an accused voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, if there is no real question to be tried, in the sense of no fairly arguable reason to doubt the prosecution case, then there will be no miscarriage of justice if leave is not given.
In Day v Police [2005] SASC 200, 92 SASR 1, Gray J said at [24] that where a plea has been entered following legal advice, withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement "and there exists a substantial issue to be tried". Block v Police (1994) 177 LSJS 103 per Olsson J was cited as authority for this proposition. In that case "substantial issue" was explained as meaning something that on the face of it, could have had the potential to significantly affect the outcome.
Further although an appeal against conviction where the conviction was on a plea of guilty, the court in R v Buchanan [2016] QCA 33 (McMurdo P, Morrison JA and P Lyons J) embarked on an evaluation of some aspects of the Crown case. Their Honours concluded (among other things) that this showed that the appellant at no stage "had any reasonable prospects of successfully resisting a verdict of guilty, if he went to trial". See also R v Coker [2013] QCA 315 at [33].
If a consideration of the strength of the Crown case and the viability of the proposed defence is relevant beyond assessing the competence and wisdom of legal advice given, I would additionally have to conclude that Mr Chatters had no realistic prospects of acquittal.
Finally, I record the fact that on 23 March 2017, when the matter was listed for mention, (seven days after the hearing finished), Mr Chatters asked that I look at a statement from a named prison "psychiatrist". This person in fact appears to be a counsellor, possibly also a psychologist. No statement then existed, but Mr Chatters said that the person had promised to make one. I pointed out that he had had ample opportunity to prepare for the hearing, which included receiving legal advice. When I pointed out that the hearing had finished, he claimed that he did not understand that, and thought the process was ongoing. I said I would take it that an application to re-open had been made, and that I would allow until 4.00pm on 28 March for a statement form this person to be lodged with the Court. Nothing was received, and nothing had been received when I had a final check made just before 4.00pm on 30 March when I had next listed the matter. At that time, before dismissing the substantive application, I dismissed the application to re-open.
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