Tasmania v Chatters (No 2) - [2017] TASSC 74

[2017] TASSC 74

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Chatters (No 2) [2017] TASSC 74

PARTIES:  STATE OF TASMANIA
  v
  CHATTERS, Heath Lance

FILE NO:  375/2015
DELIVERED ON:  16 August 2017 (Parties Only)
DELIVERED AT:  Hobart
HEARING DATES:  15, 17 May, 1, 13, 19, 20, 23 June 2017
JUDGMENT OF:  Brett J

CATCHWORDS

Criminal Law – Procedure – Pleas – General pleas – Plea of guilty – Withdrawal and restoration of plea – Generally – Whether further application for leave to withdraw plea of guilty after determination of first application is an abuse of process.

Criminal Code 1924 (Tas), s 356.
Marlow v The Queen [1990] Tas R 1; Meissner v The Queen (1995) 184 CLR 132; Wong v The Director of Public Prosecutions [2005] NSWSC 129, 155 A Crim R 37; R v Pugh [2005] SASC 427, 158 A Crim R 302; Thalari v The Queen [2009] NSWCCA 170, 75 NSWLR 307; Loury v The Queen [2010] NSWCCA 158; R v S, RP [2011] SASCFC 42; Bajramovic v Calubaquib [2015] NSWCA 139, 71 MVR 15; Weston (a pseudonym) v The Queen [2015] VSCA 354, cited.
R v Plummer [2000] NSWCCA 363; R v Wilkinson (2009) 195 A Crim R 20; Ritchie v The Queen [2017] NSWCCA 21, referred to.
Aust Dig Criminal Law [3091]

REPRESENTATION:

Counsel:

State: M Wilson
Accused: G A Richardson

Solicitors:

State: Director of Public Prosecutions
Accused: G A Richardson

Judgment Number: [2017] TASSC 74

Number of paragraphs: 87

Serial No 74/2017
File No 375/2015

STATE OF TASMANIA v HEATH LANCE CHATTERS (No 2)

REASONS FOR JUDGMENT BRETT J

16 August 2017

On 30 August 2016, Mr Chatters pleaded guilty before another judge to the crimes of armed robbery, assault and rape. He subsequently applied for leave to withdraw those pleas and enter pleas of not guilty in their place, pursuant to s 356 of the Criminal Code. The application was heard and refused by a second judge. When the matter came before me for the purpose of sentencing, Mr Chatters again asserted his innocence in respect of all charges, and made assertions of fact inconsistent with the allegations made by the State. He subsequently made a further application for leave to withdraw the pleas of guilty.
The proceedings described above raise the following issues for determination by me:
(a)Whether I have jurisdiction to determine the fresh application for leave to withdraw the pleas of guilty and, if so, the relevance, if any, of the determination of the earlier application by another judge.
(b)If I have jurisdiction to determine the application, whether leave should be granted for the withdrawal of the pleas.
(c)If leave is not granted, then it is necessary to determine the factual basis of sentencing, given the dispute which has arisen as to that question.
It was agreed by both parties that I would hear all of the evidence relevant to each issue in the same hearing and determine each of the said issues on the basis of that evidence.

History of the proceedings

The crimes to which these proceedings relate are alleged to have been committed at Devonport on 25 September 2015. The allegation is that, on that day, Mr Chatters committed an armed robbery of a service station at Formby Road, Devonport. It is alleged that after stealing money during the course of the robbery, he forced the female service station attendant, who was alone at the service station, into his car, drove around Devonport for a period of time, and then took her to a cabin in a caravan park in East Devonport where, after some hours, he sexually assaulted and raped her. The events in question came to an end when, during the course of the alleged rape, police, who had been searching for the service station attendant, forced their way into the cabin, freed the attendant and arrested Mr Chatters. Mr Chatters has not applied for bail and has been held in custody since that time.
On 26 September 2015, Mr Chatters consulted a solicitor, Kirsten Abercromby, who was then employed by a firm of lawyers in Devonport. The initial consultation concerned Mr Chatters' response to a police request for an interview. Thereafter, Ms Abercromby continued to act for Mr Chatters in respect of the charges against him.
On 31 May 2016, the State filed an indictment against Mr Chatters alleging the following crimes:
Count 1     Armed robbery
Count 2     Abduction
Count 3     Assault (by deprivation of liberty)
Count 4     Assault (by dragging the attendant to the bedroom and pushing her onto a bed)
Count 5     Indecent assault
Count 6     Rape
In June 2016, Ms Abercromby formed the view that she did not have sufficient experience to deal with the case by herself. She passed carriage of Mr Chatters' case to a more experienced and senior criminal lawyer in the firm, Evan Hughes.
Over the following weeks, Mr Hughes had a number of conversations with Mr Chatters, and entered into negotiations with the prosecution. The negotiations resulted in an agreement that the accused would enter pleas of guilty to certain counts, and the State would accept those pleas in full satisfaction of the indictment.
On 30 August 2016, at Burnie, Mr Chatters appeared before Estcourt J. He was represented by Ms Abercromby. Before Mr Chatters was brought into court, counsel informed his Honour of the existence and terms of the plea agreement. Mr Chatters was then brought into court and arraigned on the indictment. He pleaded guilty to the charges of armed robbery, the two counts of assault and rape. He pleaded not guilty to the counts alleging abduction and indecent assault. In accordance with the agreement, Crown counsel informed the judge that the plea of guilty to assault by deprivation of liberty was accepted as an alternative to the charge of abduction, and that a nolle prosequi would be filed in respect of the charge of indecent assault. That nolle was subsequently filed.
The case was adjourned to 5 September 2016 for sentencing submissions. On that day, Mr Hughes, who appeared for Mr Chatters, informed his Honour that Mr Chatters wished to apply for leave to withdraw the pleas of guilty. He requested and was granted an adjournment to enable Mr Chatters to seek advice from another lawyer.
Thereafter, according to a chronology provided to me during the course of submissions, there seems to have been a number of short hearings before various judges dealing with procedural questions concerning Mr Chatters' application for leave to withdraw the pleas. Mr Chatters was also making ongoing attempts to seek alternative legal representation.
The matter next came before Estcourt J in a substantive way on 10 February 2017. Mr Chatters was unrepresented. He confirmed his wish to withdraw his pleas of guilty and substitute pleas of not guilty in respect of all charges against him. There was a lengthy exchange with his Honour, during which Mr Chatters asserted his innocence in respect of the charges, and claimed that his lawyer had not permitted him to present this information at earlier hearings. His claim of innocence was based on an assertion that the service station attendant went with him willingly, for the purpose of obtaining drugs for their joint use. He claimed that everything that happened afterwards was consensual. It was clearly implicit in this assertion that the service station attendant consented to the act of sexual intercourse. At the conclusion of this exchange, his Honour adjourned the proceedings to enable Mr Chatters to pursue his application for leave to withdraw the pleas of guilty before another judge.
On 15 March 2017, after a number of further mentions, Porter AJ heard the application for leave to withdraw the pleas of guilty. Mr Chatters was again unrepresented at that hearing. I have not been provided with a transcript of these proceedings but I have been informed that his Honour heard evidence from Mr Hughes, Ms Abercromby and Mr Chatters.
On 30 March 2017, Porter AJ dismissed the application and indicated that written reasons would follow. Those reasons were provided to the parties on 3 April 2017.
The matter first came before me on 1 May 2017. The purpose of that hearing was to conduct sentencing proceedings consequent upon Mr Chatters' pleas of guilty. Mr Chatters was unrepresented but an adjournment was granted, for the purpose of enabling him to seek legal representation.
The sentencing proceedings resumed on 10 May 2017. Mr Chatters was again unrepresented. The prosecution stated the alleged facts, consistent with the allegations described above. Mr Chatters was then invited to address the Court by way of a plea in mitigation. He said, "I would like to challenge the facts the prosecutor has put forward." When asked what he did not agree with, he said, "I did not rob anyone and I did not rape anyone." He claimed that his pleas had been taken under duress. After a further exchange with Mr Chatters, I formed the view that whilst his plea of guilty amounted to an admission of the essential elements of each crime, there was clearly considerable dispute in relation to the wider circumstances surrounding each crime. I concluded that it would be necessary to hear evidence from the prosecution and the defence in order to resolve this dispute. The potential for such evidence, including evidence from the complainant, raised the question of whether Mr Chatters would need to be represented for the purpose of cross-examination, having regard to the Evidence (Children and Special Witnesses) Act 2001, s 8A. The matter was adjourned until later in the day to allow notice to be given to the Legal Aid Commission of the prospect of an order that Mr Chatters be provided with legal aid for the purpose of such cross-examination. When counsel from the Legal Aid Commission appeared on the adjourned hearing, I was informed that it was likely that a limited grant of legal aid would be made for that purpose. The proceedings were then adjourned to 15 May 2017 to facilitate that representation.
On the resumed hearing, Mr Richardson appeared and indicated that he was now instructed by Mr Chatters to appear generally on his behalf in the proceedings. He then made the further application for leave to withdraw the pleas of guilty, and substitute pleas of not guilty. As noted above, it was agreed that I would determine the relevant questions at the conclusion of the evidence in respect of all issues. I have heard evidence presented by the prosecution, from the complainant, a police officer who was involved in the entry into the cabin and the arrest of Mr Chatters, and the lawyers who represented Mr Chatters at the time of the entry of the pleas of guilty, Mr Hughes and Ms Abercromby. I also heard evidence from Mr Chatters, and a support counsellor from Risdon Prison, who has been dealing with Mr Chatters.

A plea of guilty – the statutory scheme

The entry of a plea of guilty to a charge contained in an indictment occurs as part of a formal trial process established by the Code. Section 351 provides for an arraignment of an accused person on the indictment. In particular, the section provides that when the accused is to be tried, "he shall be brought to the bar of the court and informed of the crime charged against him as set forth in the indictment and … he shall be then called upon to plead." By s 351(6), the trial is deemed to begin when the accused is so called upon to plead.
Section 353 provides that if an indictment is not quashed, the accused person must plead and/or demur to the indictment. The pleas that may be entered are listed in s 355 and include a plea "that he is guilty of the crime charged on indictment". The effect of a plea, other than a plea of guilty or a plea to the jurisdiction of the court, for example, a plea of not guilty, is that the accused person is deemed to have demanded that the issues raised be tried by jury, and he is thereby entitled to have them tried accordingly (s 361).
It can be seen, therefore, that a formal plea of guilty at arraignment is one of the only two ways that guilt can be established, and the presumption of innocence hence displaced, in respect of a charge on indictment. All of this is, of course, well known, but I have set out the significance of a formal plea of guilty at arraignment, because it provides the statutory context for what follows.
Once the guilt of the accused person has been established by plea of guilty, he will proceed to sentence and be liable for punishment, unless there is interference with that process pursuant to the relevant statutory provisions. Apart from appeal, there are two statutory ways in which the process of punishment upon a plea of guilty can be discontinued. One is the arrest of judgment on the ground that the indictment does not disclose a crime or that any other substantial defect appears on the face of the record (s 385). The other is if the accused person, before sentence, obtains the leave of a judge to withdraw the plea of guilty and substitute a plea of not guilty.

The effect of the earlier determination of the application for leave to withdraw the pleas of guilty

The right of an accused person to withdraw a plea of guilty and substitute a plea of not guilty in respect of a crime charged on indictment is established by s 356 of the Code. That section, as far as relevant, is as follows:
"356 Withdrawal of pleas
An accused person may, by leave of the judge, at any time —
(a) before sentence, withdraw a plea of guilty and plead not guilty; …".
The prosecution accepts the following:
(a)That upon the application for leave being made to me, I am vested with jurisdiction to determine same.
(b) The exercise of that jurisdiction is by way of an unfettered discretion.
(c)The earlier decision of Porter AJ was interlocutory in nature. Hence, the decision is not "per se binding" on me. In particular, no issue of res judicata or issue estoppel arises.
However, the prosecution argues that, having regard to the fact that an identical application was recently determined by another judge, I should, in the exercise of my discretion, refuse the application unless there has been a material change in circumstances, or new material not considered by Porter AJ has become available.
In Wong v The Director of Public Prosecutions [2005] NSWSC 129, 155 A Crim R 37, Howie J dealt with an application made to a second magistrate for leave to withdraw a plea of guilty, after a similar application had been rejected by another magistrate. The second magistrate had refused to hear the application on the basis that the decision had been made by the first magistrate. His Honour concluded that:
(a)An application to permit a defendant to withdraw a plea of guilty was interlocutory in nature. Accordingly, there was nothing to prevent a further application being made, but a rule of practice, applicable in civil proceedings, to the effect that a second court is entitled to refuse to entertain an application for an interlocutory order already determined by another court, unless there was significant new material justifying the court exercising its discretion afresh, was applicable.
(b)However, the second magistrate was vested with jurisdiction to determine the application and was not entitled to refuse to do so. It amounted to an error of law to so refuse.
(c)The second magistrate was, accordingly, required to consider the application. However, he might have adequately done so by considering whether the second application involved the presentation of fresh evidence or was reliant on a change in circumstances, and reject the application if not so satisfied.
A similar view was taken by the Court of Criminal Appeal in R v S, RP [2011] SASCFC 42. The court was dealing with a case in which a judge of the District Court had refused to entertain a further application for leave to withdraw pleas of guilty, after an initial application had been dismissed by another judge. Although the appeal against the decision of the second judge was dismissed on the basis that the second application was bound to fail in any event and, accordingly, there had been no miscarriage of justice, Kourakis J (as he then was), with whom the other members of the court agreed, said at [46]:
"Notwithstanding the form in which the application was drawn, it was in substance an application to withdraw the guilty pleas. An application to withdraw a guilty plea is interlocutory in nature. Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37. The earlier decision of the Judge not to allow the plea to be withdrawn was not a final order and did not preclude the hearing of a further application. This was not a matter that was governed by the discretion to allow a hearing to be reopened or to vacate a ruling earlier made. The appellant was entitled as of right to have the second application heard, and determined, unless it was an abuse of process. Moreover, the appellant was entitled to procedural fairness on the hearing of the application, both as to its merits and on any preliminary issue, like abuse of process. Procedural fairness was not accorded by disposing of the matter in chambers without hearing submissions."
The issue of whether an attempt to relitigate an interlocutory question already decided, might amount to an abuse of process was considered by the Court of Appeal of the Supreme Court of New South Wales in Bajramovic v Calubaquib [2015] NSWCA 139, 71 MVR 15. That case concerned an application for leave to commence an action for damages which was out of time. Emmett JA, with whom the other members of the court agreed, said, at [40]-[41]:
"Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.
It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained. Citing Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139."
Having considered these authorities, I am satisfied that the following principles are relevant to this application:
(a)The accused is entitled to make a second application. Having done so, the Court is vested with jurisdiction to determine that application, and must provide due process and natural justice in doing so.
(b)The Court is entitled to consider whether or not it would be an abuse of process for the accused to relitigate an application already determined and to take that question into account in the determination of the application.
(c)The overriding principles are that the Court must do whatever the interests of justice require in the particular circumstances of the case. In some circumstances, an attempt to relitigate proceedings where there has been no change in circumstances, and no further material is available, might amount to an abuse of process. However, that consideration is no more than a rule of practice. In the circumstances of an attempt by an accused person to withdraw a plea of guilty and substitute a plea of not guilty in respect of serious criminal charges with the potential upon conviction of the infliction of severe punishment, the Court should be loath to refuse to entertain the application on its merits solely on the basis of a determination that the second application amounts to an abuse of process.

Further, I have concluded that it is appropriate that I should entertain the fresh application for leave to withdraw the pleas of guilty on its merits. I am of this view for the following reasons:
(a)There seems to me to be little cogent reason for not entertaining the application on its merits. The principal rationale for the rule of practice which discourages the re-agitation of interlocutory applications, unless there has been a change of circumstances, is essentially one of utility. In the vast majority of cases, sentencing will be undertaken by the judge who deals with and dismisses the application. For various reasons, in this particular case, because of circumstances which were not brought about by the accused, that has not occurred. The application has now been made to a second judge who was not privy to, and who has not had the benefit of the evidence presented to the first judge. A further application made to the same judge who has dealt with the original application might be easily and summarily disposed of if it is clear that nothing has changed. However, that is not the case in these proceedings. The fact that the consideration of this application is taking place in somewhat unusual circumstances suggests that there is no real potential for a determination by me of the second application on the merits to "open the floodgates" in terms of similar applications in other cases. Hence, I do not believe that questions of utility deserve any significant weight in the context of this case.
(b)Having regard to the fact that I did not hear the evidence or the arguments presented to Porter AJ, it could not possibly amount to a proper exercise of my discretion to determine this application by simply refusing to consider the evidence presented to me. Of course, having heard the evidence, I must, as part of my determination of the application, consider whether it would amount to an abuse of process to make a different decision, but this must occur in the context of an exercise of discretion based on all relevant considerations.
(c)In any event, I am satisfied that there are, at least, two circumstances which have materially altered the situation since the matter was determined by Porter AJ. Firstly, Mr Chatters now has legal representation, whereas he was not represented during the first proceedings. Secondly, in sentencing submissions before me on 10 May 2017, the prosecution gave forewarning, for the first time as far as I can determine, that upon conviction, the State will consider the possibility of an application under s 19 of the Sentencing Act 1997, that Mr Chatters be declared to be a dangerous criminal. The fact that the conviction of the accused for the crimes under consideration may enliven the Court's jurisdiction under that section, and the active consideration by the prosecution in respect of the prospect of seeking such a declaration, may be a cogent consideration in respect of the exercise of discretion to grant leave to withdraw the pleas of guilty. This is not a matter which, as far as I am aware, was the subject of agitation before Porter AJ, nor had it been a matter which was raised prior to the sentencing proceedings before me on 10 May 2017.
The cogency of that consideration arises in these circumstances. As I will discuss in more detail later in these reasons, the principal contention of the prosecution is that Mr Chatters entered the pleas of guilty deliberately and voluntarily, after receiving legal advice as to his prospects of success, and taking into account the potential sentence that might be imposed on a plea of guilty compared to that which might flow after a finding of guilt after a plea of not guilty. As will be discussed, the evidence of Mr Hughes was that his advice to Mr Chatters included his view that Mr Chatters would have a legitimate expectation of receiving a significant discount on sentence for pleading guilty, as much as one third of the sentence. There was no suggestion that Mr Chatters was advised that conviction for any of these crimes might, both theoretically and as a matter of practical reality, lead to the potential of a dangerous criminal declaration with the consequence of indefinite imprisonment.
As I will ultimately conclude, the prospect of that declaration, and the fact that it has only arisen in the consciousness of the prosecution and the accused since the pleas were entered, will not have a significant bearing on the outcome of the application for leave to withdraw the pleas. However, it is a matter not considered by Porter AJ, and the fact that it has now been raised by the prosecution amounts to a new circumstance. It also supports the need for the careful consideration of the application in the interests of justice, given the potential ramifications to the accused, if he is not granted leave to withdraw the pleas of guilty.
These considerations satisfy me that it is appropriate to determine this application on the merits arising from the evidence presented to me and that the application and its consideration does not amount to an abuse of process.

Applicable principles relating to the exercise of discretion

The approach to be taken in respect of the exercise of discretion relating to the grant of leave to withdraw a plea of guilty is well settled and has been judicially expressed on many occasions. The fundamental proposition is set out in the following passage from the joint judgment of Brennan J (as he then was) Toohey and McHugh JJ in Meissner The Queen (1995) 184 CLR 132 at 141:
"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence." [Footnote omitted.]
In the same case, Dawson J emphasised that a person will be held to an unequivocal plea of guilty unless that person establishes that to do so would constitute a miscarriage of justice. His Honour said, 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. 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." [Footnote omitted.]
The comments set out above were expressed as dicta, but have been adopted and applied by courts, including intermediate courts of appeal in most jurisdictions in Australia. In Tasmania, the most recent decision of the Court of Criminal Appeal dealing with this question is Marlow v The Queen [1990] Tas R 1, which was obviously decided before Meissner. Nothing said in Marlow is inconsistent with the dicta expressed in Meissner.
The focus, therefore, is on the question of whether acting on the plea of guilty would amount to a miscarriage of justice. In respect of this question, the actual guilt or innocence of the accused person is of little importance. The fundamental focus of the inquiry is on the integrity of the plea and, in particular, whether the accused person did not intend by the plea to admit guilt. This does not necessarily equate to a genuine belief by the accused person in his own guilt. A person is entitled to admit guilt without such a belief, and may be legitimately motivated to do so by other reasons, including a belief that defending the case is futile because of the strength of the prosecution case, or that he may gain some advantage in sentencing. (Meissner; Thalari v The Queen [2009] NSWCCA 170, 75 NSWLR 307; Ritchie v The Queen [2017] NSWCCA 21.)
Finally, the cases make it clear that the onus of demonstrating that leave should be granted lies upon the accused. (Ritchie; R v Wilkinson (2009) 195 A Crim R 20.) The point was succinctly made by Whelan and Kaye JJA in Weston (a pseudonym) v The Queen [2015] VSCA 354 at [120]:
"The test, whether a trial judge should grant leave for an accused to change his or her plea from guilty to not guilty, is whether a miscarriage of justice would ensue if such leave were denied to the applicant. In determining that question, the judge has a discretion which must be exercised judicially in the circumstances: Middap (1989) 43 A Crim R 362, 364 (Crockett, O'Bryan and Gray JJ). In order to enliven the discretion, the applicant must establish sufficient circumstances that would justify the exercise of the discretion in his or her favour."

How the decision to plead guilty came about

Mr Chatters

Mr Chatters' fundamental position, as revealed by his evidence before me, is that he is not guilty of any of the charges, has always believed that he is not guilty of the charges, and has always instructed his legal advisors, both before and after the entry of the pleas of guilty, that that is the case. His evidence in relation to the events upon which the charges were based was that he had gone to the service station for the purpose of rectifying a leak which had developed in the radiator of his motor vehicle. While he was there, he commenced a polite conversation with the complainant, during which she offered to give him money from the cash register of the business, and then agreed to go with him so that they could both purchase drugs from a source known to her, which they would then use together. She took money from the cash register and gave it to him and then willingly left the service station with him in his motor vehicle. She went with him willingly to the caravan park and, at a later time in the night, engaged in sexual intercourse with him consensually. He provided innocent explanations for apparently incriminating aspects of the evidence, including CCTV footage in which he appears to be holding a knife whilst interacting with the complainant in the service station office, and pulls a hood over his head when he goes behind the service counter with her. He said that he had the knife in his hand incidentally to his work on his motor vehicle, and pulled the hood over his head at the suggestion of the complainant.
Mr Chatters' evidence was that when he first spoke to Ms Abercromby, he told her that he wanted to plead not guilty. These were also his instructions when he was first introduced to Mr Hughes a couple of months later. He also provided both lawyers with the exculpatory version of events set out above. He said that Ms Abercromby advised him simply that if what he was saying was true, then he would be found not guilty of the charges. However, Mr Hughes' advice was that he should do a "plea deal" because he would not be believed and was "talking pure fantasy". Mr Hughes explained to him that he, as counsel, would be brutal to witnesses, and that it would go harder on Mr Chatters if he was found guilty. Mr Hughes continually told him that he should plead guilty.
Mr Chatters said little in his evidence about the negotiations with the State, or the agreement that Mr Hughes entered into on his behalf. His explanation for actually entering the pleas of guilty in the proceedings before Estcourt J is that he had been worn down by Mr Hughes constantly refusing to listen to his claims of innocence, continually telling him to plead guilty, and telling him that he would not be believed if the matter went to court. He had developed an illness and this had reduced his ability to resist the pressure coming from Mr Hughes. He said that he had never agreed with the plea deal, and eventually entered the pleas of guilty because Mr Hughes "kept threatening me … with fourteen year sentence if I didn't plead guilty".
In cross-examination, Mr Chatters made some further claims:
(a)That at the time he pleaded guilty he had not been presented with all the information, including the CCTV footage. I infer from this claim that he took the view that the CCTV footage assisted his case.
(b)That he had been told by Mr Hughes that if he disagreed with the wording of the charges (which I take to be the particulars), he "could not be made to plead guilty or be held to those pleas".
(c)That he had told Mr Hughes on a number of occasions that he wanted a different lawyer, in fact, Mr Richardson, but Mr Hughes would not contact him.
(d)That Mr Hughes told him that if he pleaded not guilty he would be facing 14 or 16 years' imprisonment, but if he pleaded guilty, the sentence would come down under eight years.

Ms Abercromby

Ms Abercromby confirmed that shortly after she commenced to act for Mr Chatters, he instructed her to enter pleas of not guilty to all charges. However, he did not provide her with a detailed version of the relevant events, except that he alleged that police had "doctored" the complainant's statement, the complainant had entered the vehicle with him willingly, and that he knew the complainant from previous associations with her. Ms Abercromby, concerned about Mr Chatters' mental health, arranged to obtain a report from a psychiatrist, Dr Ian Sale. Dr Sale's report concluded that Mr Chatters suffered from no abnormality of the mind. Ms Abercromby then decided that she did not have sufficient experience to represent Mr Chatters herself and referred the matter to Mr Hughes. She then had minimal involvement in the matter until her appearance at the arraignment on 30 August 2016. I will return to her evidence concerning the events of that day shortly.

Mr Hughes

Mr Hughes testified that before he commenced to take instructions from Mr Chatters, he was in possession of Dr Sale's report. That report opined that Mr Chatters was not suffering from mental illness at the time of the relevant events, nor as at the date of the report. The report also noted that Mr Chatters' recall of the relevant events was patchy, and this may have been related to the fact that he was using excessive amounts of alcohol and drugs at the relevant time. Dr Sale considered that Mr Chatters may have misinterpreted various aspects of those events.
Mr Hughes confirmed that, with the exception of some material not relevant for present purposes, he had provided Mr Chatters with a full set of Crown papers and provided full and detailed advice to him concerning the elements of each charge. He did not give Mr Chatters a copy of the CCTV footage, but arranged for Mr Chatters to view it. Mr Hughes had a number of discussions with Mr Chatters, during the course of which he took instructions. Mr Chatters varied his instructions over time but his primary position was that he was not guilty of the relevant crimes because he had at all times acted with the consent of the complainant. However, after provision of Crown papers and showing Mr Chatters the CCTV footage, Mr Hughes pointed out a number of discrepancies between Mr Chatters' version and other evidence, as well as a number of improbable aspects of his version, having regard to the surrounding circumstances. Mr Hughes' evidence was, that upon being confronted with these inconsistencies and improbabilities, Mr Chatters accepted that his recollection of the night may be confused and incorrect, particularly having regard to the effects of the alcohol and substances he had consumed that night. He further instructed Mr Hughes that he had experienced "blackouts" with respect to the night in question, and this may also account for the discrepancy between his recollection and other evidence. Ultimately, he instructed Mr Hughes that he was prepared to accept that his recollection was incorrect in certain respects and accepted his guilt in respect of the armed robbery, assault by deprivation of liberty, rape and the associated assault. He instructed Mr Hughes to attempt to negotiate a resolution of the case with the prosecution.
Mr Hughes then entered into correspondence with the office of the Director of Public Prosecutions. The correspondence was placed in evidence and was not the subject of dispute by Mr Chatters.
Negotiations commenced with a letter from Mr Hughes to the DPP dated 12 August 2016. The proposal contained in that letter, consistent with Mr Hughes' description of the instructions given to him by Mr Chatters, was that Mr Chatters would plead guilty to the crimes of armed robbery, assault by deprivation of liberty (as an alternative to the charge of abduction) and rape. The concessions sought from the DPP were that the prosecution accept the plea of guilty to assault in satisfaction of the charge of abduction, and further that the allegations of assault and indecent assault not be the subject of separate crimes but could be presented as circumstances of aggravation concerning the count of rape. On 15 August 2016, Mr Hughes sent a letter to Mr Chatters confirming that he had made that proposal to the DPP and confirming the particulars of it. In the end, as a result of further negotiation, the matter was resolved in principle, in accordance with the pleas which were actually entered by Mr Chatters on 30 August 2016.

The events of 30 August 2016

Mr Hughes arranged for Ms Abercromby to appear at the arraignment hearing, as he was on leave at that time. The arrangement was that upon the pleas being entered, an application would be made for the sentencing hearing to be adjourned until after Mr Hughes had returned from leave.
It is common ground that Ms Abercromby had a meeting with Mr Chatters in the cells at the Burnie Supreme Court prior to the hearing. Her evidence is that during the course of that meeting, Mr Chatters again indicated to her that he thought the complainant's statement had been "doctored". She immediately telephoned Mr Hughes, with Mr Chatters present, placing the phone on loud speaker so that both were privy to the conversation with Mr Hughes.
Mr Chatters' version of the phone call is that the call was made because he had aired his concerns to Ms Abercromby while they were going through paperwork prior to the hearing. When he spoke to Mr Hughes, he told him that he wanted to change his pleas to not guilty and that he did not "want to go through with this". Mr Hughes replied by saying, "No, that's not the arrangement we made", and telling him that he could not change the arrangement at this point. Mr Chatters says that he attempted to assert this position to Mr Hughes on a number of occasions but Mr Hughes resisted these assertions, reminding him about the weakness of his case. Mr Chatters disputed that he spoke to Mr Hughes in a joking manner during the conversation, but confirmed that Mr Hughes had joked with him by claiming that Mr Chatters had almost given Mr Hughes "a heart attack". Mr Chatters also said that when he raised specific difficulties with the particulars of some of the allegations, Mr Hughes indicated to him that the question of particulars could be sorted out later. Mr Chatters agreed however that, in the end, he confirmed that he would proceed with the agreement. He said he did so because he was feeling ill and was worn down by the pressure applied by Mr Hughes.

Mr Hughes' version of this telephone call is that he was at the supermarket, on leave, when he took the call. Mr Chatters began the conversation by raising issues relating to the particulars alleged in the indictment in respect of each charge. Mr Hughes confirmed that particulars could be discussed at a later time, and joked about being in the supermarket. Mr Chatters did say words to the effect that he was going to change his pleas, but almost immediately laughed and said he was only joking and was not being serious. Mr Hughes agrees that, at that time, he joked with Mr Chatters by reference to "a heart attack". Mr Hughes was satisfied that the conversation ended with Mr Chatters confirming that he would proceed in accordance with the negotiated arrangement.
Ms Abercromby's version of these events corroborates Mr Hughes'. In particular, during the exchange in which Mr Chatters raised the possibility of changing his pleas and then immediately indicated that he was joking, Mr Chatters winked at her and was grinning.
What took place during the arraignment hearing is transcribed and I also have had the benefit of viewing a visual and audio recording of those proceedings. The transcript reveals that in a conversation between counsel and the sentencing judge prior to the hearing, in Mr Chatters' absence, the judge was apprised of the likely course of the proceedings, and the pleas which it was anticipated would be entered. It was his Honour's suggestion at that point that Ms Abercromby should stand next to Mr Chatters while the pleas were put to him, so that she could be in a position to advise him on what plea was to be entered to which charge, given the complexity of the agreement.
The indictment was put to Mr Chatters as soon as he was brought into court. It is worthwhile setting out the full transcript of the proceedings. It is obvious from the visual and audio recording that Mr Chatters' responses were, at times, given after he had had a short discussion with Ms Abercromby:
"ASSOCIATE: Mr Chatters, you stand with one count of, that of the first count of armed robbery.
ACCUSED: Yes.
ASSOCIATE: In that you, at Devonport in Tasmania on the 25^th day of September 2015 at the time of stealing cash to an approximate value of two hundred and one dollars and ninety cents, threatened to use violence to [complainant] in order to obtain that thing or in order to prevent or overcome resistance to her stealing of that thing by saying the words, 'Do as you're told or I'll slit your throat, right?' At the time of committing the said robbery you were armed with a dangerous weapon, namely a knife. What say you, are you guilty or not guilty?
MS ABERCROMBY: (indistinct words)
ACCUSED: Yeah, I'd say guilty.
HIS HONOUR: Thank you.
ASSOCIATE: You are charged with a second count, that of abduction, in that you at Devonport in Tasmania on the 25^th day of September 2015 took away and/or detained [complainant] against her will with intent that said [complainant] have sexual intercourse with you. What say you, are you guilty or not guilty?
ACCUSED: Not guilty.
ASSOCIATE: You are charged with a third count, that of assault, in that you at east Devonport in Tasmania on the 25^th day of September 2015, unlawfully assaulted [complainant] by depriving her of her liberty. What say you, are you guilty or not guilty?
ACCUSED: Is that guilty?
MS ABERCROMBY: That's a guilty, yes.
ACCUSED: Yep, guilty.
ASSOCIATE: You are charged with a fourth count, that of assault in that you at east Devonport in Tasmania on the 25^th day of September 2015 unlawfully assaulted [complainant] by pulling her by her hair and dragging her to the bedroom and pushing her on to a bed. What say you, are you guilty or not guilty?
ACCUSED: Not guilty.
MS ABERCROMBY: (indistinct words) if I could just have a moment, your Honour. Sorry, your Honour, if I could ask if that charge be put again please.
HIS HONOUR: Yes.
ASSOCIATE: You are charged with a fourth count, that of assault, in that you at east Devonport in Tasmania on the 25^th day of September 2015 unlawfully assaulted [complainant] by pushing [sic] her by the hair and dragging her to a bedroom and pushing her on to a bed. What say you, are you guilty or not guilty?
ACCUSED: Guilty.
ASSOCIATE: You are charged with a fifth count, that of indecent assault, in that you at east Devonport in Tasmania on the 25^th day of September 2015 unlawfully and indecently assaulted [complainant] by kissing her on the lips, neck and breasts and touching her vagina with your hand. What say you, are you guilty or not guilty?
ACCUSED: Not guilty.
ASSOCIATE: You are charged with a sixth count, that of rape, in that you at east Devonport in Tasmania on the 25^th day of September 2015 had unlawful vaginal sexual intercourse with [complainant] without her consent. What say you, are you guilty or not guilty?
ASSOCIATE: Yes, guilty.
HIS HONOUR: Right, thank you. You can sit down, Mr Chatters, and I will just record what I have noted, that is, plea of guilty to Count 1, charge of armed robbery , plea of not guilty to abduction, Count 2, Count 3, pled guilty to assault, Count 4, a plea of guilty to assault, Count 5, plea of not guilty to indecent assault and Count 6, plea of guilty to rape. All right, thank you.
MS WILSON: Thank you, I formally indicate that the Crown accepts those pleas in satisfaction of the indictment, well, in relation to where there is an alternative and we undertake to file a nolle prosequi in relation to the indecent assault.
HIS HONOUR: Thank you."
In his evidence before me, Mr Chatters explained his decision to enter pleas of guilty during the hearing as follows:
"He (Mr Hughes) would compare robbery to rape, saying that I'll get essentially the same sentence for both of them and that by pleading guilty I'll get a third off and then 'cause I had the blood condition I'll get another year off and he was talking between six and eight – a year so he talked the sentence rates down basically to the same sentence as what you'd get for one robbery, one serious robbery – I didn't know what to do, I just wanted it over with, I was tired of it, I was being told that – that there was no point in pleading not guilty, I'd be slaughtered in the media anyway, and then when I went up to do the pleas, yeah, I just – I threw in the not guilty thing just to show that I was in two minds, I wasn't – I wasn't agreeing with what was going on and that was may – my way of demonstrating it, yeah, that's – that's what I did, …".
He made further allegations in cross-examination, including that he had had facts withheld from him by Mr Hughes. He reaffirmed that he had been threatened by Mr Hughes and explained this as follows:
"… he threatened me to the point where he made me believe that if I pleaded guilty I'd get that lesser sentence down under eight years, seven years, and that if I pleaded not guilty, I was going to get fourteen or sixteen years, and I'd be slaughtered in the media, no one would believe my story anyway, no one – that's that I was told."
Mr Chatters also claimed that he felt he "… had no say in the matter really and from my experience if I stand up in the middle of the court room and say something I'm told to be quiet and sit down, 'cause that's what your lawyer's there for, to speak for you …". When challenged in cross-examination about the fact that he did enter a plea of not guilty to one charge when the plea was intended to be guilty, and then changed the plea to guilty after advice (count 4), he reaffirmed that he had deliberately entered the not guilty plea in an attempt to communicate his concerns about the agreement reached between his lawyer and the DPP.

The application to withdraw the pleas of guilty

After the pleas had been entered, Ms Abercromby applied for and was granted an adjournment of the sentencing proceedings to 5 September 2016. It was anticipated that Mr Hughes would then be in a position to appear for Mr Chatters and make a plea in mitigation.
It is common ground that Mr Chatters instructed Mr Hughes that he wished to change his pleas to not guilty in a conference between them on 5 September, prior to the sentencing proceedings. According to Mr Chatters, the situation arose in the context of Mr Chatters disputing the Crown statement of facts to the point where he was disputing criminal responsibility for the matters to which he had pleaded guilty. When Mr Hughes told him that he was bound by his pleas, Mr Chatters expressed surprise on the basis that Mr Hughes had told him that he could challenge the details of the allegations at a later point. This version of the conversation is not substantially different from the version provided by Mr Hughes, except that Mr Hughes says that Mr Chatters said to him that he had "been thinking" and "12 years was just too much" and that he "might as well just take it on".
Mr Chatters' counsel placed in evidence a record of contact between therapeutic services in the prison and Mr Chatters during the relevant period. The following entries have some relevance to this case:
12/8/2016"Inmate discussed next Court appearance. Inmate still maintains he will enter a plea of NG but will probably sack his current lawyer as he feels that he is not doing what is required for him."
1/9/16There is a detailed discussion concerning certain therapeutic matters. However there is no reference by Mr Chatters to what had taken place in court on 30 August, or his intention to change his pleas.
13/9/2016"Inmate also discussed the legal system and the impact on himself and other inmates. Inmate spoke of the games he was part of with his lawyer and the Prosecution, the deals that had been made. Inmate now adamant that he will enter plea of NG as 'I'm sick and tired of playing their games'."

Discussion

Where there is a conflict between the evidence of Mr Hughes and Ms Abercromby on the one hand, and Mr Chatters on the other, I accept the evidence of Mr Hughes and Ms Abercromby. Their evidence was given with obvious care, and was generally consistent with objective facts and probabilities. Mr Chatters, on the other hand, gave evidence which was confused and in many respects improbable. He was unimpressive as a witness. I will deal with specific difficulties with various aspects of his evidence from time to time throughout the balance of these reasons.
In any event, at least in respect of the historical account of their dealings, much of the difference between them is attributable to emphasis and interpretation. However, a significant difference between Mr Hughes and Mr Chatters concerns Mr Chatters' recall of the events of the night of the alleged crimes. Mr Hughes' evidence is that Mr Chatters accepted, after being confronted with the physical evidence, that he had gaps in his memory of the night and also that his memory may have been affected by the substances consumed by him. In his evidence before me, Mr Chatters did not deny being affected by drugs and alcohol, and conceded in respect of his recollection of the night that "Later in the evening I felt a bit hazy, that was about all. Earlier in the night I was okay." He disputed, however, that he did not have a recollection of the events relevant to the crimes.
In my view, it is highly probable that Mr Chatters does, in fact, have gaps in his memory in respect of the night in question and has reconstructed his version of those events. Whilst that would not necessarily bear on the question of whether he did in fact accept his guilt by pleading guilty to the charges, it is consistent with the conversation that Mr Hughes said that he had with him during the course of taking instructions. I concluded that it was more probable than not that Mr Chatters had, in fact, conceded to Mr Hughes gaps in his memory and the possibility of an innocent reconstruction of certain crucial events, but is no longer prepared to make that concession.
Having considered all of the evidence, I am satisfied that Mr Chatters consciously and deliberately pleaded guilty to the charges of armed robbery, assault (by deprivation of liberty), assault (by application of force) and rape. I am satisfied that when he did so, he realised and understood that, by pleading guilty, he was admitting to the Court, criminal responsibility for those charges, and that that admission was inconsistent with the initial instructions he had provided to Ms Abercromby and Mr Hughes. At the very least, he appreciated that the pleas of guilty were inconsistent with the claim that the complainant had given him money from the till, had gone with him willingly in the car, and had consented to have sexual intercourse with him.
My conclusion so expressed arises in large part from my satisfaction that, until the point where he entered the pleas in the arraignment hearing, Mr Chatters had been deliberately weighing up his options in an effort to determine the course of action most favourable to him. In this respect, he was on the horns of a dilemma. On the one hand, I have no doubt that he was keen to persist with his claim that the complainant had, in fact, acted consensually. He clearly understood that he would not incur criminal liability if that were accepted to be the case. His understanding about that is clear from his statement to me at the outset of the sentencing proceedings when he responded to the Crown facts by saying: "I did not rob anyone and I did not rape anyone." It is clear also from his initial instructions to the lawyers that he wanted to plead not guilty and his general claims of innocence, that he understands, and has always understood, that his claims of consent by the complainant are inconsistent with guilt. On the other hand, his then counsel, on his own version, had given him strong advice about the likely outcome of a trial, the potential sentence after a finding of guilt and the very significant discount that would available to him upon a plea of guilty. I am satisfied that Mr Chatters understood his options and was still weighing up the relative consequences of pleading guilty or not guilty at the time that spoke to Mr Hughes on the telephone from the cells before the arraignment hearing. In my view, it is highly probable that, during that conversation, he was attempting to canvas the possibility and extent to which he would be able to put his version that the complainant had consented to what took place, while still obtaining the benefits of a plea of guilty. This conclusion is consistent with the common evidence that the conversation included a discussion about the particulars of the charges and whether he would be bound by them. It is clear that he raised the possibility of changing his pleas. He may well have been uncertain about whether to proceed with the agreement, and was mooting the possibility of reneging on the agreement. This would be consistent with doing so in a light hearted and uncommitted manner. I accept Ms Abercromby's evidence that when Mr Chatters raised with Mr Hughes the possibility that he might change his pleas to not guilty, he did so in a tentative and light hearted way and grinned and winked at her when he made that comment.
Having accepted that Mr Chatters felt that he was on the horns of a dilemma, and was still weighing up his options during the course of the telephone conversation, it is also clear to me that by the end of that conversation, he had made the decision that he would proceed with the agreement. His evidence before me was notable because of his failure to refer, to any significant extent, to his involvement in the negotiations which took place between the DPP and Mr Hughes. However, it is clear that Mr Chatters was well aware that an agreement had been reached, and that that was the purpose of the arraignment hearing. He can have been in no doubt about that. Mr Hughes had clearly expressed the opening offer in the letter sent to Mr Chatters on 19 August. Mr Chatters' version of the conversation between him and Mr Hughes on 30 August indicated that he realised that an agreement had been reached, albeit that he was considering not going ahead with it. He said that during the conversation, he had told Mr Hughes that he did not "want to go through with this." "This" must be a clear reference to the plea arrangement. In his answer to his counsel concerning his conduct during the arraignment hearing, and in particular in a reference to the plea of not guilty to count 4, which subsequently changed to guilty, he said:
"I threw in the not guilty thing just to show that I was in two minds, I wasn't – I wasn't agreeing with what was going on and that was may – my way of demonstrating it, yeah, that's – that's what I did …".
I have no doubt that Mr Chatters was initially in two minds, but I am also completely satisfied that he had resolved that dilemma by the time he went into court by choosing to enter the pleas of guilty. I am satisfied that the entry of the plea of not guilty to count 4 arose solely from confusion. In any event, by entering that plea, albeit mistakenly, he has demonstrated that he had the capacity to enter such a plea to that or any other charge if he wished to do so. I do not accept his evidence that he felt overborne and pressured, and felt he had no choice but to take the course which he did. He could easily have said "Not Guilty" at any stage during the arraignment, and, in fact, did so on more than one occasion. I am satisfied that he deliberately chose to plead guilty to the relevant charges because he wanted to obtain the benefits which he believed would flow from a plea of guilty. He may well have harboured an incorrect and irrational hope that he could somehow still be sentenced on a basis consistent with his assertions of consent on the part of the complainant, but ultimately, he understood that by pleading guilty, he was admitting guilt, and that this was inconsistent with his claims of consent on the part of the complainant. This must be the case because he would not have been toying with the prospect of pleading not guilty otherwise. Further, I am satisfied that Mr Hughes had explained the elements of the various crimes to him. While he may have believed that he could still dispute particulars after a plea of guilty, I have no doubt that he well understood that this would not extend to the fundamental question of the complainant's consent.
There is nothing in the record of the arraignment proceedings that would suggest that these were anything other than unequivocal pleas of guilty. Accordingly, they amounted to "a solemn confession of the ingredients of the crime" R v Tonks [1963] VR 121 at 127. The difference between an equivocal and an unequivocal plea of guilty was explained by Crawford J (as he then was) in Marlow:
"The difference between an equivocal and unequivocal plea of guilty was made clear in P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751, [1978] RTR 302. In that case there was an appeal from a conviction based on a plea of guilty made in an inferior court. O'Connor J, with whom the other members of the Divisional Court agreed, drew a clear distinction between a situation where a defendant pleads guilty but in the same breath qualifies that plea (for example, on a charge of handling stolen property a plea of 'guilty but I did not know it was stolen'), and a situation where there is an unequivocal plea of guilty, but something is said by or on behalf of the defendant sometime later, for example, during the plea in mitigation which is in conflict with the guilty plea. An equivocal plea of guilty is in reality not an admission of guilt at all. It is the well recognised 'guilty but' plea consistent with innocence. But an unequivocal plea of guilty is what it appears to be and it is accepted by the court, which then proceeds to hear matters relevant to the matter of sentencing."
The one aspect which Mr Chatters claims reveals the equivocal nature of the pleas entered by him on that day, is the entry of the plea of not guilty to count 4, which he claimed was intended to reveal the equivocal nature of his response to the charges. However, there is no reasonable basis upon which the events relevant to the plea on count 4 can be accepted as demonstrating equivocation. He entered the plea of not guilty, counsel then discussed the matter with him for a period of time and requested that the charge be put again, the charges were read again in full to the accused and he then clearly and unequivocally entered the plea of guilty. Rather than indicate equivocation, these circumstances demonstrate the deliberate nature of his choice to enter the plea of guilty. He had already entered a plea of not guilty, but in a calm and deliberate way, after discussion with counsel, entered the contrary plea. In my view, there can be no clearer manifestation of the state of mind which I have concluded Mr Chatters had reached by this point, that is, that he had decided, despite his earlier reservations, to proceed in accordance with the plea agreement.

The fact that Mr Chatters wished to advance the claim that the complainant co-operated with him by handing him money and consented to getting in the car and having sex with him, is not necessarily determinative that he held a genuine belief that this was the true situation. In fact, having heard evidence from the complainant and from Mr Chatters with respect to these events, I am satisfied that this is not the case, and he has reconstructed, perhaps deliberately, the events of the night to suit his own purposes. I am at least satisfied that he did concede to Mr Hughes, when confronted with the prosecution evidence, that he did have gaps in his memory. In any event, a decision to admit guilt, despite a genuine belief that he is innocent of the charges, in order to obtain an advantage in sentencing, will not necessarily lead to a conclusion that to act on the pleas will result in a miscarriage of justice. This is consistent with the obiter comments of Dawson J in Meissner (above), and has been restated in many cases since. In Wong v Director of Public Prosecutions (above) Howie J said at [35]-[38]:
"If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff's antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.
If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell [[2001] NSWCCA 299] at [34].
But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.
An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison [2003] QCA 125; (2003) 138 A Crim R 378 at 384 under the heading 'I am not guilty but I'll plead guilty'. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged."
These views were endorsed by the New South Wales Court of Criminal Appeal in Thalari v (above) at [35]:
"A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds 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, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46."
In Loury v The Queen [2010] NSWCCA 158, Whealey J, with whom Hodgson JA and Kirby J agreed, said at [99]:
"What also emerges from the authorities is that a plea of guilty may be entered for reasons other than a belief in one's own guilt. As noted by Dawson J in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, the accused person's exercise of free choice may 'extend beyond that person's belief in his guilt' and includes situations such as the avoidance of worry or inconvenience, the protection of one's family and even 'the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty' (at 157)."
Decisions of courts in other States have expressed similar views. See, for example, Weston (a pseudonym) v The Queen (above); R v Pugh [2005] SASC 427, 158 A Crim R 302.
Ultimately, the onus is on Mr Chatters to demonstrate that a miscarriage of justice will result if he is held to his plea of guilty. His argument is that there will be a miscarriage of justice because his plea of guilty was not attributable to a consciousness of guilt, but rather it resulted from undue pressure from his lawyers and from his confusion about the process. Having considered all of the evidence, I do not accept these claims. The advice given by Mr Hughes, both as to Mr Chatters' prospects of success, and the potential for a significant discount on sentence upon a plea of guilty, was reasonable and justified. It is clear to me that Mr Chatters, in a considered way, heeded that advice, weighed up his options, and then made a conscious and deliberate decision to admit guilt. I am satisfied that he understood that the pleas were inconsistent with his claims concerning the consent of the complainant. The established law confirms that a formal admission of guilt made in such circumstances will bind an accused person and he cannot thereafter simply change his mind and decide that he will avail himself of the benefit of a trial.

A further consideration – the potential for the accused to be declared a dangerous criminal

When this matter first came before me on 10 May 2017, after the facts asserted by the prosecution as the basis for sentencing had been stated, counsel for the Crown gave forewarning that the Crown "would like to consider making a dangerous criminal application under s 19". Counsel indicated that she was raising this because she wanted to "flag that upon conviction, I would ask for a forensic mental health report so that the Crown can consider its position in relation to that".
At the time that these comments were made, Mr Chatters was not represented by counsel. The matter was not adverted to again during the course of the subsequent proceedings. As far as I can ascertain, this was the first time that the Crown had indicated its interest in a declaration that Mr Chatters be declared a dangerous criminal.
Although my understanding of the practice before this Court is that orders for declaration of an offender as a dangerous criminal under s 19 are normally made on the application of the prosecution, such an application is not necessary to enliven the Court's discretion to make such an order. The terms of s 19 provide that the judge "before whom an offender is convicted or brought up for sentence after being convicted, may declare the offender to be a dangerous criminal" if certain matters are established and the judge "is of the opinion that the declaration is warranted for the protection of the public". The pre-conditions for making such a declaration, in addition to the judge's opinion, are that the crime for which the offender is convicted involves violence or an element of violence, the offender has apparently attained the age of 17 years, and the offender has at least one previous conviction for a crime involving violence or an element of violence. Having regard to the circumstances of the crimes to which Mr Chatters has pleaded guilty, and his record of prior convictions provided to me during the course of the sentencing proceedings, it would seem likely that these three pre-conditions can be established. I deliberately express no view about the fourth requirement, the judge's opinion.
The effect of such a declaration is that irrespective of the sentence imposed on Mr Chatters for the crimes to which he has pleaded guilty, he would not become eligible for release from custody until the declaration is discharged. The practical effect of such a declaration is detention for an indefinite period.
There is no suggestion in the evidence that Mr Chatters was advised of, or aware of, the prospect of such a declaration when he made the decision to enter the pleas of guilty. Given my finding that he was motivated to enter the pleas because of advice concerning his prospects of success if the matter went to trial, and the likely benefit to him in sentencing if he entered the pleas of guilty, it must, at least, be a reasonable possibility that, had he been aware of the risk of a dangerous criminal declaration, he would not have chosen to enter the pleas of guilty. He did not expressly say this in his evidence, but the matter was not raised with him. This may simply be because he was not represented when the prosecution made the said comment, and the matter was not again referred to. The question arises, however, as to whether this circumstance, in itself, is sufficient to give rise to a miscarriage of justice, if leave to withdraw the pleas is not granted.
In Pugh, the Court of Criminal Appeal in South Australia considered an appeal against convictions which had flowed from pleas of guilty. The grounds of appeal included that the pleas had not been entered with a consciousness of guilt, and had been entered upon the incorrect advice of counsel, which included incorrect advice which had a significant impact in terms of the anticipated sentence. The court concluded that the pleas had been entered consciously and deliberately as an admission of guilt, and although the decision to admit guilt was motivated in part by incorrect advice, it could not be said that there had been a miscarriage of justice. Doyle CJ said at [69]:
"I consider that the plea of guilty was entered by Mr Pugh in the exercise of a free choice. He decided to plead guilty weighing up, in broad terms, his prospects of success and the expected sentence. His expectations as to the sentence were defeated, because of Mr Ibbotson's mistake. But that does not mean that the decision to plead guilty was not made in the exercise of a free choice. I acknowledge that it was not a fully informed choice, and that it was made in part on a mistaken basis, but that is something that will arise from time to time when a decision is made to plead guilty on the basis of advice given during the course of a trial. There was no improper inducement held out to Mr Pugh."

Bleby J put the matter this way at [92]-[95]:
"In making his decision to plead guilty on count 4 the appellant had an expectation of a sentence in a particular range. He believed that the trial Judge had indicated the likelihood of a sentence in that range. He complains that the sentence imposed was beyond that range, and that if he knew that he would receive the sentence which in fact he received, he would not have pleaded guilty.
The appellant was put under no pressure by Mr Ibbotson. In fact, Mr Ibbotson left him to think about the position for ten minutes. Once the prosecution had raised the possibility of withdrawal of counts 5 and 6 and of the appellant pleading to count 4, it was the appellant who said that he would entertain the plea if the sentence was suitable to him. He knew that by pleading guilty he would be admitting the facts on which the charge was based and the inferences to be drawn from those facts. Mr Ibbotson had told him that the circumstantial case against him on count 4 was strong.
It is clear that the appellant had a choice – to admit his guilt in the expectation of a particular sentence or to maintain his defence in the hope of an acquittal, but in the knowledge that:
· The success of his defence to count 4 would turn largely on his evidence being accepted against what he had been advised was a very strong circumstantial case against him; and
· If his defence failed, and if he were convicted on counts 5 and 6 as well, the sentence could well be significantly greater.
He may well have had a motive for taking the course he did, but it was his decision. There was no fraud or duress which induced his decision. He had an indication from his counsel of what the likely sentence would be, based on a discussion of the circumstances of the case with the Judge and the prosecutor, a discussion to which the appellant had not been a party, and the precise nature of which he must have been unaware. It was the appellant's choice to plead guilty knowing all the circumstances to which I have just referred. Having made that choice, the appellant then sat down with his counsel and, as this Court has now found, instructed him to make formal admissions of fact designed to indicate the extent of the appellant's involvement in the offending the subject of count 4."
A similar view was taken by the Court of Criminal Appeal for New South Wales in R v Plummer [2000] NSWCCA 363 in circumstances in which the accused had entered a plea of guilty on the basis of an expectation of a sentence, the length of which had been underestimated by the accused's legal advisor.
In this case, Mr Hughes agreed that he had advised Mr Chatters that he could expect a significant discount in sentence for a plea of guilty. This was reasonable advice in the circumstances, particularly given the fact that a plea of guilty which did not involve a contest of the factual basis of sentence could well avoid the need for the complainant to give evidence. The fact that the conviction for those charges might also enliven the discretion vested in the sentencing judge to make a dangerous criminal declaration does not affect the accuracy of the advice concerning the potential discount. However, it obviously leaves out of account a significant consequence flowing from the pleas of guilty. Having said that, there is no certainty that such a declaration will be made. Even if it is, the only consequence is that the reasons which motivated Mr Chatters to admit his guilt may not have been accurate. However, this consideration is not a matter that affects the question of his criminal responsibility. It relates only to the question of what punishment could be expected to flow from the pleas of guilty. This consideration is relevant to Mr Chatters' motive for deciding to admit his guilt without a trial, but does not affect the integrity of the pleas as a true admission of guilt. At the end of the day, notwithstanding that the advice given to Mr Chatters may have been flawed in this one particular respect, it does not change the reality that Mr Chatters, for whatever reason, made a conscious, deliberate and informed decision to admit his guilt to these charges through pleas of guilty. He did so without any guarantee as to sentence. The advice confirmed that, even with a discount, he could expect a significant sentence of imprisonment upon conviction. None of these considerations change the underlying reality that he clearly understood that by entering a plea of guilty, he was admitting his guilt to the crimes concerned, and, with that knowledge, he took that course.

Conclusion with respect to the application for leave to withdraw the pleas of guilty

It is consistent with the interests of justice that an accused person be bound by a plea so entered. As I have discussed earlier in these reasons, the plea of guilty is part of the trial process. The importance of the presumption of innocence demands that it only be displaced after guilt has been established in accordance with the due process of law. There are two ways in which this can occur, by formal admission by way of a plea of guilty, or after a plea of not guilty by acceptance by a jury of proof beyond reasonable doubt. The integrity of either method is of fundamental importance, and hence that question is central to the enquiry as to whether there has been a miscarriage of justice. In the case of a plea of guilty, it is only if there will be a miscarriage of justice that leave should be given to withdraw the plea. However, it is crucial to the proper operation of the system of criminal justice that applies in this State, and a consequence of the importance of the presumption of innocence, that once the presumption has been properly displaced, in accordance with due process of law, that guilt be regarded as having been established. Hence, if a person deliberately and knowingly admits guilt by a plea of guilty, then it is correct that that admission should be regarded as finally determining the question of guilt. That must be the case irrespective of the person's motive for taking that course.
I am satisfied that that is what occurred in this case. Mr Chatters freely, deliberately and unequivocally admitted his guilt. He may have been motivated by a belief that such an admission was in his best interests, but the motive is irrelevant. It follows that I am not satisfied that Mr Chatters has demonstrated that a refusal to grant leave to withdraw the pleas of guilty will result in a miscarriage of justice. Accordingly, leave to do so is refused. He will be sentenced in accordance with the pleas.

The factual basis of the sentence

As noted above, the agreed position of the parties was that if the application for leave to withdraw the pleas of guilty was refused, then I would then determine the factual basis of sentencing, having regard to the evidence heard by me during the course of the hearing.
In some respects, and despite Mr Chatters' evidence as to the circumstances of the relevant events, there can be little issue as to the factual basis of sentencing, having regard to his pleas of guilty. Those pleas constitute an admission of the essential ingredients of each crime. Mr Chatters' claims with respect to the attitude of the complainant and, in particular, her connivance with him concerning the money from the till, her willingness to go with him in the car, and her consent to sexual intercourse, are directly inconsistent with those admissions and, accordingly, must be ignored. In any event, having heard the evidence presented by the prosecution, including the evidence of the complainant, and Mr Chatters' evidence concerning those events, I am satisfied beyond reasonable doubt that the complainant, has given a substantially accurate account of the events in question. Accordingly, I will proceed to sentence in accordance with her version of events which, in essence, is as stated by Crown counsel during the course of the sentencing proceedings.

My reasons for accepting the evidence of the complainant are, in summary, that I found her to be a truthful and credible witness, her evidence was entirely consistent with the objective probabilities arising from the circumstances, and with other evidence presented by the prosecution, and finally, I reject Mr Chatters' evidence as a truthful and reliable account of the relevant events.
The respective versions of the complainant and Mr Chatters can be easily tested against other evidence. Some aspects of this are as follows:
(a)There is a clear contrast between the respective capacities of each of them to recall the relevant events. The complainant was at work and clearly not affected by alcohol or drugs, certainly during the majority of the said events. The accused, on the other hand, by his own admission, had been consuming alcohol and taking drugs and continued to do so throughout the events in question. It can be inferred that these circumstances had the capacity to impact on Mr Chatters' capacity for recall.
(b)In numerous respects, the CCTV footage is inconsistent with Mr Chatters' version and entirely consistent with the version of the complainant. For example, the complainant said that the robbery took place when Mr Chatters entered the shop, produced a knife and told her to give him all the money she had. She immediately went into the console area to comply with this demand, and he followed her. She handed him some money and they both left. At all times when they were in in the console area, he was standing near her, holding the knife. Mr Chatters' version of these events is that he returned to the shop after fixing his car, to purchase milk and "to talk to someone to find out if they could get drugs". He said that after he entered the shop, he and the complainant engaged in polite conversation for some time. During the course of this conversation, the subject of drugs came up and it was at that point that the complainant offered to get drugs for him. They then discussed using money from the till to purchase the drugs. Mr Chatters confirmed that this conversation had taken place "at the front of the servo", and before they went behind the counter. He said that the conversation took approximately five minutes. He did, at a later point in his evidence, attempt to qualify his version, by saying that this discussion had extended over the whole period that he was in the service station, including when they were behind the counter and afterwards. However, in answer to questions from me, Mr Chatters said that it was his decision to go behind the counter and his purpose was to see if there was enough money to enable the purchase of drugs. Clearly, this could not have occurred until the conversation had developed to the point where agreement to purchase the drugs together had been discussed and confirmed. Mr Chatters also said that he pulled his hood over his head as soon as they moved behind the counter because of a suggestion from the complainant.
The CCTV footage is consistent with the complainant's version and directly inconsistent with Mr Chatters' version. The CCTV footage depicts Mr Chatters entering the shop and immediately confronting the complainant in the front area of the shop. He and the complainant then move to the console area almost immediately, within a second or two of his entry into the shop. Mr Chatters is holding the knife and walks there behind the complainant. As soon as they go behind the counter, Mr Chatters pulls a hood over his head consistent with an attempt to disguise his identity. He is still holding the knife, including to the back of the complainant, as he takes the money and they leave the console area. These observations of the CCTV footage strongly support the complainant's version of these events. Importantly, there is simply no opportunity for the conversation described by Mr Chatters. That conversation could not have taken place in the time depicted in the CCTV footage, at least before they move behind the console where he takes the money.
(c)The significance of this aspect of the CCTV footage extends beyond the events concerning the alleged armed robbery. The conversation during which the complainant, according to Mr Chatters, agrees to take money from the service station, help Mr Chatters buy drugs and then to use those drugs together, is fundamental to the probability of the truth and accuracy of the balance of Mr Chatters version of the events of that night. In particular, the complainant's agreement, as described by Mr Chatters, provides the only logical explanation as to why a worker, coming to the end of her shift, and presumably intending to return home to her partner and children, would agree to go with a man she did not previously know, in his motor vehicle, stay with him for some hours in his cabin at a caravan park, and then initiate and engage in consensual sex with him. It is common ground, at least on the evidence in the hearing before me, that they did not know each other before this night. According to Mr Chatters, the mutual decision to steal money and purchase drugs was not pre-planned. It was a spontaneous agreement reached during the course of the conversation which started with Mr Chatters seeking to purchase milk. There can be no doubt that the complainant was coming to the end of her shift, and would then, in the normal course, have returned home to her partner and children. Whilst the prosecution would argue that the claimed agreement, in these circumstances, is highly improbable in any event, there is no reasonable possibility that Mr Chatters' version as to subsequent events could be accurate without the spontaneous agreement described in his testimony. On Mr Chatters’ version, this agreement could only have been reached during the five minute conversation before he and the complainant go behind the console. The CCTV footage excludes the reasonable possibility that that conversation took place. It follows that the suggestion that the complainant went willingly with the man who has perpetrated the crime upon her, and subsequently initiated and consented to sex with him, must also be far-fetched and fanciful.
(d)There is also significant inconsistency between Mr Chatters' version and the evidence of the police officer, Sergeant Keiselis. Mr Chatters' evidence was that the door of the cabin at the caravan park remained unlocked during the time that the complainant was there. His point is that she could have left at any time. He also said that when police entered the cabin, the complainant screamed at police saying, "Fuck off" in a loud voice. It is submitted that these two matters are consistent with the complainant being with Mr Chatters, and having sex with him consensually.
Sergeant Keiselis' evidence was that he attempted to enter the cabin through the glass door but it was locked. When police smashed the glass and entered the cabin, the complainant was observed to be distressed, dishevelled and said, "Help me, help me." She immediately ran out of the cabin, past police. She also said, "I didn't think anyone was going to come for me."
Again, this evidence is entirely consistent with the evidence of the complainant and directly inconsistent with the evidence of Mr Chatters. Sergeant Keiselis impressed me as giving honest and reliable evidence. His version was not undermined by cross examination. I accept his evidence.
(e)There were other aspects of Mr Chatters' evidence that impacted on his credit. For example during the cross-examination of the complainant, the following exchange occurred;
"Did you tell him you had a partner? … Yes.
Did you tell him that your partner's name was [M]? ... Yes.
Did you tell him that [M] was a good dad to your kids but you didn't particularly like him? … No.
Was it true? … No.
Did he ask you about your children's actual father? … [M] is their father.
Sorry? … [M] is their father.
Were – were you living with somebody who was not their father? … No.
You didn't tell him anything like that? … No, I've been with [M] the whole time.
Okay. You didn't tell him that – that the natural father of your children and you had separated because of unfaithfulness? … No, [M] is the father of my children.
Okay … And we are still together."
In his evidence-in-chief, Mr Chatters said, about this point:
"Okay. Did she suggest to you that she got on or didn't get on with the father of her children? … She said that she didn't really love him, she said he was a good father to the kids but she said she didn't love him, she was still in love with the first bloke that she'd been with, I think it was [E], I think from memory."
In cross-examination, Mr Chatters conceded that he had, on an earlier occasion, made a statement which suggested that the complainant had told him that her current boyfriend was good to her son, as if he was not his natural father. This prior statement, of course, is consistent with the underlying basis of the line of questions put by his counsel to the complainant in cross-examination. Although Mr Chatters attempted to downplay this inconsistency in cross-examination, I gained the clear impression that he had subtly changed his evidence, when he gave evidence-in-chief, in order to conform with the complainant's answers in cross-examination, which informed him, probably for the first time, that her current partner is, in fact, the father of her children.
The subject matter of this evidence itself is of little importance. It is completely understandable that the complainant would have engaged Mr Chatters in conversation, including about personal matters, while she was being held in the cabin, in an attempt to win his trust and avoid any circumstance in which he may become aggressive or violent towards her. The real point here is that he gave evidence under oath in a manner which was clearly inconsistent with an earlier version of the conversation. I gained a firm impression that he was prepared to adjust his evidence to suit the circumstances, and his perception of his own best interests. I concluded that his oath appeared to be of little value to him.
(d)Finally, as already discussed to some extent, the version of the complainant accords with the inherent probability of the surrounding circumstances, whereas Mr Chatters' version does not. I accept that the complainant had never met Mr Chatters before. She was at work, coming to the end of her shift, and intending to return home to her partner and children. It is highly improbable that she would spontaneously agree to give Mr Chatters money from the till of the shop, willingly go with him, without any real knowledge of him or understanding where they were going, and then engage in consensual sexual intercourse with him. It was common ground that the service station had been left open and unattended when they left, and again this is a fact which is consistent with the complainant's version that she was forced to go with him, and inconsistent with Mr Chatters' version. His explanations for matters such as this were fanciful and inherently unbelievable.
I am satisfied beyond reasonable doubt that the complainant has given a substantially accurate version of the events in question. Mr Chatters will be sentenced for the crimes to which he has pleaded guilty, in accordance with the complainant's version of the relevant events. This includes the following:
(a)That Mr Chatters stole money from the service station by threatening the complainant with a knife.
(b)That the complainant was forced to go with Mr Chatters in his motor vehicle against her will.
(c)That Mr Chatters assaulted the complainant by grabbing her by the hair and dragging her to a bedroom of the cabin and pushing her onto the bed.
(d)That Mr Chatters had vaginal sexual intercourse with the complainant without her consent. In particular, he overcame her lack of consent by the combination of the application of physical force and the threat of force as described by the complainant in her evidence.