Tasmania v Whitton-Lowe
[2021] TASSC 43
•7 September 2021
[2021] TASSC 43
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Whitton-Lowe [2021] TASSC 43
PARTIES: STATE OF TASMANIA
v
WHITTON-LOWE, Liam Kerry
FILE NO: 48/2021
DELIVERED ON: 7 September 2021
DELIVERED AT: Hobart
HEARING DATE: 22 June, 20 July 2021
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Procedure – Pleas – General pleas – Plea of guilty – Withdrawal and restoration of plea – After committal for sentence on plea of guilty.
Criminal Code 1924 (Tas), ss 7, 331B, 331C, 345, 356, 420, 421A.
Justices Act1959 (Tas), ss 27, 32, 47, 48, 55, 56, 58, 59, 60.
Neasey v Strickland (1995) 5 Tas R 228; Austin v Cochrane (1998) 7 Tas R 344; Pearce v The Queen (1998) 194 CLR 610; R v D'Orta-Ekenaike [1998] 2 VR 140; Tasmania v Chatters (No 2) [2017] TASSC 74, referred to.
Aust Dig Criminal Law [3091]
REPRESENTATION:
Counsel:
State: A Chisholm
Defendant: C Tregurtha
Solicitors:
State: Director of Public Prosecutions
Defendant: Matthew Verney Lawyers
Judgment Number: [2021] TASSC 43
Number of paragraphs: 20
Serial No 43/2021
File No 48/2021
STATE OF TASMANIA v LIAM KERRY WHITTON-LOWE
REASONS FOR RULING BRETT J
7 September 2021
On 24 November 2020, the defendant appeared before Magistrate Topfer in the Magistrates Court at Burnie on a complaint charging him with two counts of assault contrary to the Criminal Code. He was unrepresented, and had not sought legal advice prior to the appearance. This was his first appearance in respect of the complaint.
It is clear from the audio record of the proceedings which has been provided to me, that the magistrate read both charges to the defendant, explained to him that they were both indictable offences which would have to be dealt with by a judge and could not be dealt with by her, and explained to him that he was entitled to an adjournment so that he could get legal advice if he wanted to do so. The defendant said that he just wanted to plead guilty to both charges. The magistrate again explained that she could not deal with the sentencing and he would have to be referred to a judge for that purpose. She went through the particulars of the charges and confirmed with him that he wanted to plead guilty. The defendant said that he did, and subsequently signed an endorsement of those pleas on the record of proceedings sheet. The magistrate then committed the defendant to this Court for sentence.
Subsequently, the defendant obtained legal advice and representation. He no longer wishes to be held to his pleas of guilty. To the extent that it is necessary to do so, he seeks leave to withdraw each plea and plead not guilty to the charge in question.
The prosecution submits that the defendant is bound by the pleas of guilty. In particular, it is submitted that, having regard to the provisions of s 331C of the Code, this Court should treat the pleas of guilty entered before the magistrate as if the defendant had appeared and entered those pleas in the Supreme Court to the same charges contained in an indictment. The prosecutor submits that, accordingly, the defendant can only withdraw the pleas if granted leave to do so pursuant to s 356 of the Code. It is further submitted that this Court should refuse leave.
This argument raises for consideration the following issues:
(a)The significance and legal status of a plea of guilty to an indictable charge entered before a magistrate prior to committal to this Court. In particular, whether leave is required before such a plea can be withdrawn.
(b)If leave is required, whether that leave should be granted in this case.
The plea of guilty
Section 7 of the Code provides that, except as otherwise provided, proceedings in the Supreme Court against any person for a crime shall be initiated by indictment. There are two ways in which a person can be brought before the Supreme Court for the purpose of such proceedings. Firstly, if an indictment has been filed by a private person with leave of the Supreme Court under s 420, or an ex officio indictment by a Crown Law officer under s 421, then the accused can be brought before the Court in one of the ways prescribed in s 421A. The second, and most common way in which an accused comes before the Supreme Court for the purpose of proceedings commenced by indictment, is upon committal by a magistrate for trial or sentence. This process occurs when a person is charged by police on complaint with a crime and the person is then brought before justices by summons or warrant pursuant to ss 27 and 32 of the Justices Act 1959. The procedure thereafter is prescribed by Div 2 of Pt VII of the Justices Act. Section 55 provides that, at the first appearance, if the person is not represented by a lawyer, the magistrate must:
"(a)cause the charge to be read to the person or explain to the person, in simple terms, the offence with which the person is charged; and
(b)explain to the person his or her rights and duties under this Act in respect of the charge; and
(c)invite the person to enter a plea to the charge."
By s 55(3), a defendant charged with an indictable offence attending before the court for the first time in respect of that offence, may plead to the offence. Whether or not a plea is entered on the first appearance, the accused must eventually plead to the charge in accordance with that provision: s 58. Section 59 sets out the pleas available to the defendant. These include a plea of guilty to the offence. By s 59(4), if the defendant pleads guilty, the complaint is to be endorsed to that effect, and the endorsement signed by the defendant.
By s 60, the magistrate must commit the defendant to the Supreme Court for sentence if he has pleaded guilty to the indictable offence with which he was charged "or to another indictable offence of which he or she might be convicted on the indictment for the offence charged". Section 331B of the Code provides that, at the first appearance before the Supreme Court of a defendant committed on a plea of guilty entered before justices, the Court is to list the defendant for sentencing on a day fixed by the Court. Section 331C provides as follows:
"If a defendant is committed, by justices in accordance with the Justices Act 1959, to the Supreme Court for sentence, the Supreme Court has jurisdiction over the defendant as if the defendant had appeared and entered the plea to an indictment for the offence in respect of which he or she was committed."
The effect of this section is critical to the assessment of the legal effect of the plea of guilty before the magistrate. Without it, it is strongly arguable that the only effect of the plea is as an admission of guilt, which is an administrative trigger for committal to the Supreme Court for sentence, but otherwise does not bind the defendant as a determination of guilt, in the same way as a plea of guilty to the indictment. The administrative and non-adjudicative nature of the committal process where a plea of not guilty has been entered was discussed by Zeeman J in Neasey v Strickland (1995) 5 Tas R 228. Further, in the absence of s 331C, and having regard to the provisions of s 7 of the Code, it must be the case that the Supreme Court would not have jurisdiction to sentence the defendant unless and until the defendant had been arraigned upon an indictment and had pleaded guilty to it.
In general terms, the binding nature of a plea of guilty arises from its function as one of the means of determining guilt, and thereby subjecting the defendant to punishment. An unequivocal plea of guilty will constitute "a formal confession of the existence of every ingredient necessary to constitute the offence": R v D'Orta-Ekenaike [1998] 2 VR 140. The formality and effect of a binding plea of guilty is inconsistent with the administrative and non-adjudicative nature of committal proceedings, the purpose of which is to bring the accused before the Supreme Court for the purpose of proceedings commenced by indictment. This certainly seems to be the way in which pleas of guilty in committal proceedings are regarded in some other Australian jurisdictions. For example, in Victoria in D'Orta-Ekenaike, Winneke P made this observation as to the significance of a plea of guilty before justices in that jurisdiction:
"In the State of Victoria the situation has always been, as I understand it, that a plea of guilty entered at the Magistrates' Court can be changed on arraignment, but the accused is aware from the moment he enters that plea that it is likely to have evidential consequences at the trial. Such is the consequence of the caution administered to him at the time when he enters the plea: reg 1002 of the Magistrates' Court General Regulations. As the Full Court of this State said in Broadbent's case at 736:
'When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, ss. 47 and 48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him.'
So far as I am aware, although the nature of the caution has changed, the consequences of the plea have not."
In that case, his Honour was concerned with the admissibility of the plea entered at the committal stage as an admission of guilt during a subsequent trial of the charge on indictment. He noted that in some other States such a plea can only be withdrawn with leave of the court. However, in such a case, the argument then arises as to whether the plea, if withdrawn, remains admissible as evidence of guilt. His Honour proceeded on the basis that the plea could be withdrawn at the election of the accused, but may have evidentiary consequences because of its status as a formal admission of all of the elements of the offence.
If it is the case that a plea of guilty before the magistrate is binding for the purpose of the determination of guilt, then an important practical consequence may be its effect in other cases on the right of the prosecution to present an indictment containing more serious charges after committal for sentence. If the effect of s 331C is that the Supreme Court is to proceed for all purposes as if the defendant had pleaded guilty to those charges on indictment, then it is arguable that the prosecution should be regarded as having accepted the pleas in satisfaction of the complaint as if it were an indictment, and the judge should then proceed to conviction and sentence on the basis of those charges. This may well preclude further and more serious charges arising from the same conduct: Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ at 616, 688. Although a plea of guilty to a charge will not amount to a determination of guilt until it has been accepted by the prosecution and the court, that acceptance can be implied where the accused has pleaded guilty to the charges levelled against him or her by the indictment, rather than an alternative charge. Hence, a plea to charges on complaint, regarded for all purposes as a plea as if those charges were contained in an indictment, would logically have that effect. However, in my experience, as a matter of practice in this jurisdiction, more serious charges are frequently brought on indictment after committal for sentence upon a plea of guilty before the magistrate to a complaint charging lesser or different offences. Clearly, this occurs as a result of review by the Director of Public Prosecutions following committal. This practice would seem to be in direct conflict with the position taken by prosecuting counsel in this case, a position persisted with despite the inconsistency being pointed out to counsel during the hearing. In any event, I am not aware of this issue having been previously argued, and it was not fully argued in this case, and hence ought not be determined by me. I simply make a point which would seem to be a logical consequence of the ruling which is sought by the prosecution in these proceedings.
Notwithstanding these observations, the fact remains that upon a plea of guilty in the Magistrates Court, the defendant is committed to the Supreme Court for sentence, not for trial. Section 331C resolves any doubt about the jurisdiction of the Supreme Court to deal with the defendant for that purpose without an indictment, but I am not sure that it goes as far as the prosecution contends in this case. In particular, I doubt that its effect is that the Court is bound to regard the plea for all purposes as if it had been entered on an indictment. In view of the decision I have reached on the question of leave, it is not necessary to resolve this issue. On the assumption that leave is required to permit the defendant to withdraw the plea entered in the Magistrates Court, I will treat the question as a matter of discretion, apply the usual principles applicable to the exercise of that discretion, but take into account that the plea was entered, not on a formal arraignment under an indictment, but in the less formal context of administrative proceedings in the Magistrates Court.
Finally, I should deal with the defendant's counsel's submission that the plea of guilty should not be regarded as binding because the magistrate failed to comply with the requirements of s 55(1) of the Justices Act by:
(a)reading the charges together and taking pleas across both matters at the same time, in breach of s 55(1)(a), and
(b)not explaining to the defendant that in the event that he exercised his right to an adjournment, he would be entitled to the rights and duties conferred by s 56 of the Justices Act. I note that s 56 provides for disclosure of documents and other information in the possession of the police, during the adjournment.
I do not regard either submission as providing a basis to set aside the plea or otherwise regard it as non-binding. In my view, there was substantial compliance by the magistrate with the requirements of s 55. As to the first matter, it was made clear to the defendant that he was facing two charges; the particulars of both were read to him more than once, and there can be no real doubt from his responses that he indicated his intention to plead guilty to each charge. With respect to the second matter, it is certainly the case that the magistrate was required to explain to the defendant his rights and duties under the Act in respect of the charge. This probably includes explaining his right to disclosure. However, I think that the magistrate's explanation of his rights and duties, which included his capacity to seek legal advice and his right to an adjournment, constituted substantial compliance with the requirements of s 55. Even if it did not, it is obvious that the defendant was wanting to plead guilty in order to have the matter disposed of before the magistrate, and any further explanation in relation to the question of disclosure would not have affected his attitude. Neither matter provides a substantial reason for regarding the plea as non-binding.
Leave to withdraw the plea of guilty
In Tasmania v Chatters (No 2) [2017] TASSC 74, I set out the principles applicable to an exercise of discretion concerning a grant of leave to withdraw a plea of guilty:
"[31] 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.]
[32] 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.]
…
[34] 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.)"
In this case, the defendant was before a magistrate for the first time, without legal representation, and not having taken any legal advice. Having regard to his evidence, I think it is likely that he had not even seen the complaint at that time, although the charges, without particulars, were set out in a bail document that had been given to him immediately after his arrest and release from custody. The fact that he had not taken legal advice had a number of important implications for his understanding of what he was facing and what he intended to convey by his plea of guilty. Firstly, I accept his evidence that he did not have a sufficient understanding of the indictable nature of the charges, that they were more serious than charges of common assault dealt with before the Magistrates Court, and that sentence could only be imposed by a judge in the Supreme Court. All of this was explained to him by the magistrate, but, as he said in evidence, he had trouble hearing her Honour and, in any event, simply did not understand the significance of what was being said. Secondly, without legal advice, he did not understand that his plea of guilty precluded his capacity to deny criminal responsibility on the basis that any application of force was carried out in lawful self-defence. He had no understanding of the potential, on his plea of guilty, for the Court to resolve the factual basis of sentence in a manner adverse to his assertions as to what happened when the offences were committed, or that his assertions would be inconsistent with his guilty plea.
Accordingly, I am not satisfied that the defendant's pleas of guilty amounted to an unequivocal admission of guilt to the charges he was actually facing. His confusion and mindset in entering the pleas was contributed to by the fact that they were entered before a magistrate on his first appearance. In this sense, the administrative nature of the process is relevant to the exercise of discretion. It is easier for this Court to accept that by entering the pleas, the defendant was not intending to make a formal and unequivocal admission of guilt for the purpose of a determination about that question, and the pleas should not be regarded as such.
There has been discussion in counsel's submissions as to whether it was incumbent on the magistrate to make further enquiry of the defendant, beyond ensuring that the charges were read to him and that he understood the charges. In particular, there was some discussion of the decision of Crawford J (as he then was) in Austin v Cochrane (1998) 7 Tas R 344, when his Honour considered South Australian authorities with respect to the duty of the court with unrepresented defendants, which included enquiry as to facts relevant to any potential defence. I do not think it is necessary for me to make any comment on that question in this case. Firstly, those cases relate to a plea of guilty in the Magistrates Court to summary charges, where it is undoubted that the plea would undoubtedly constitute a basis for the determination of guilt. Given that these were administrative proceedings conducted for the purpose of committing the defendant to the Supreme Court for sentence, even if those cases suggest some obligation to make enquiry on the part of the magistrate where there is a plea of guilty to a summary offence, that, in my view, would not necessarily transpose to a similar obligation in relation to indictable charges. This highlights the distinction to be made between a plea entered on indictment in the Supreme Court and one entered on the complaint in the Magistrates Court.
In his affidavit, the defendant swears to facts which, if true, would provide him with a defence to both charges. In respect of one charge, he asserts that any force used by him, which was significantly less than that particularised in the charge, was used in lawful self-defence. He denies the allegations relevant to the other charge completely. This, in itself, would not be sufficient to overcome the binding effect of an unequivocal admission of guilt in a plea of guilty, but given the circumstances in which those pleas were made, I am satisfied that it will constitute a miscarriage of justice to determine either charge on the basis of those pleas. Accordingly, it is appropriate to grant leave to withdraw the pleas of guilty, and I do so. The accused will be treated as if he had been committed to this Court for trial on both charges, and any further proceedings should be conducted on indictment. I am not intending by this grant of leave to make any decision about the use that can be made of the pleas and the proceedings which led to them as evidence in any subsequent trial. That will be a question for the trial judge.
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