Thatcher v The State of Western Australia
[2017] WADC 35
•17 MARCH 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THATCHER -v- THE STATE OF WESTERN AUSTRALIA [2017] WADC 35
CORAM: GOETZE DCJ
HEARD: 3 & 17 MARCH 2017
DELIVERED : 17 MARCH 2017
FILE NO/S: IND 1971 of 2015
BETWEEN: KIRK ANTHONY THATCHER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application to change plea - Turns on own facts
Legislation:
Criminal Code
Criminal Investigation Act 2006
Result:
Application dismissed
Representation:
Counsel:
Applicant: Mr K G Robson
Respondent: Ms E J Noonan
Solicitors:
Applicant: Gibbs Legal
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Birch v The State of Western Australia [2017] WASCA 19
Glover v Reyne [2001] WASCA 305
Horsman v Bishop [2000] WASCA 316
Lim v Bateman [2001] WASCA 307
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 29
GOETZE DCJ:
Introduction
By indictment dated 12 May 2016, the applicant is charged with two counts.
The first is that, on 20 May 2015 at Lathlain, he obstructed a public officer engaged in the performance of his functions as a police officer.
The second is that, on the same date and at the same place, the applicant, knowing that a quantity of methylamphetamine might be required in evidence upon the prosecution of him, wilfully destroyed the same with intent thereby to prevent it from being used as evidence in that prosecution.
On 18 December 2015, the applicant pleaded guilty to each of the two abovementioned charges in the Perth Magistrates Court and was committed to the District Court for sentence.
On 19 May 2016, the applicant was arraigned in the District Court and pleaded guilty to each of the abovementioned charges with judgments of conviction then being entered against him. He was remanded for sentence on 16 August. This was adjourned to 6 October and then further adjourned to 20 October, before this application to change his pleas was filed on 10 November 2012.
The application to change the pleas came on for hearing on Thursday, 2 March and was adjourned until 17 March 2017.
The State opposes the application to change the pleas.
History
Between 26 May 2015 and 18 December 2015, the applicant appeared in the Perth Magistrates Court in relation to the two offences, together with a further three charges, being possession of a prohibited drug with intent to sell or supply it, possession of stolen or unlawfully obtained property and the possession of cannabis. From 30 June 2015, the applicant was represented by counsel, who remained his counsel up to and including both the time when he was arraigned and when he pleaded guilty in the District Court as set out above, and then, on 6 October 2016 when his present solicitor was also present.
Prior to the pleas on 19 May 2016, there were negotiations between the parties with the result that, on 12 May 2016, counsel for the applicant advised prosecutors that agreement could be reached on the basis that:
1.the applicant would plead guilty to the two charges in the present indictment;
2.the charge of possession of prohibited drugs with intent to sell or supply would be downgraded to one of simple possession; and
3.the charge of possession of stolen or unlawfully obtained property would be remitted to the Magistrates Court and dealt with there, together with the possession of cannabis charge which had always remained in the Magistrates Court.
There then followed the attendance in the District Court on 19 May 2016 and the pleas of guilty to the two charges on the indictment.
The applicant's present counsel has, quite properly, conceded that the possession of prohibited drugs with intent charge had no prospect of conviction, such that it was not surprising that it was remitted to the Magistrates Court. The end result is, in terms of negotiations, that there was no benefit to the applicant by reason of his pleas.
The charges of simple possession of prohibited drugs, possession of stolen or unlawfully obtained property and possession of cannabis are to be dealt with after the two indictable matters are disposed of. They were last listed on 3 March and adjourned to later today, at 2.15 pm.
The applicant was also charged with an alleged offence against s 304 of the Criminal Code, which he believed related to grievous bodily harm. This was not the subject of any negotiations at all between the State and defence. The State simply formed the view that there were no reasonable prospects of conviction on that offence. This belief was communicated to the court and to the defence on 28 June 2016. The charge was discontinued on 30 June 2016.
The State and defence cases
The State case is that the applicant was apprehended for lawful reasons. The police believed they had reason to search the applicant, at which point, he became highly agitated and obstructed their search attempt and in the course of his apprehension, he swallowed some small clipseal bags containing prohibited drugs.
As to count 1, being the obstruction charge, it is alleged by the applicant that he was on bail and there was no valid warrant for his arrest. He was not advised by the police officer that that officer was about to remove his belt or the reason therefor. Further, the search was conducted on a public road and generally, the Criminal Investigation Act 2006 had not been followed. The submission is that this may afford a defence given the objection as to the manner and location of where the applicant was being searched.
As to count 2, the defence case is that the applicant was not seeking to destroy evidence but rather, seeking to end his life, such that after his arrest, the paramedic asked the applicant as to the quantity of drugs ingested by him, to which he responded:
I don't care, let me die.
Further, a short time later at Royal Perth Hospital, he refused to answer the same question.
From the brief, it can be seen that the applicant was placed into an induced coma for four days as there was a risk of death without treatment.
There is therefore some support for the applicant that he was attempting suicide by the ingestion of drugs rather than, knowingly and wilfully destroying evidence with intent as alleged in count 2 of the indictment.
However, it has not been suggested that, on the admitted facts of his case, the applicant could not, in law, be guilty of the two offences.
The common law power to set aside a plea of guilty
It is agreed between the parties that there is nothing in s 99 of the Criminal Procedure Act 2004 which abrogates the court's inherent jurisdiction to set aside a plea of guilty on the basis of a miscarriage of justice: Birch v The State of Western Australia [2017] WASCA 19 [213], [254].
However, before there can be a change of plea, the court must be satisfied that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ), and 157 (Dawson J).
Legal principles as to change of plea
From Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] (Hall J), there are three well recognized grounds for allowing a change of plea:
1.where the applicant did not understand the charge or did not intend to plead guilty;
2.where on the admitted facts, the applicant could not in law be guilty of the offence; and
3.where the plea of guilty has been obtained by inducement, fraud or intimidation.
The following principles can also be extracted from the reasons of Hall J in Snook:
1.The three abovementioned circumstances are not the only circumstances that might justify a change of plea. What is required is that without such change, there would be a miscarriage of justice.
2.The onus is on the applicant to show why the change should be permitted. This is no easy thing to do. Indeed, the courts should approach such applications with caution bordering on circumspection by reason of the strong public interest in the finality of proceedings and this, all the more so, when the applicant has had the benefit of legal advice before pleading guilty.
3.An assertion that there is an arguable defence does not provide a basis for suggesting that there has been a miscarriage of justice.
4.An accused may enter a plea of guilty for reasons other than a belief as to guilt (including, in the present case, a desire to 'get it over and done with'). The entry of such a plea is valid and a conviction based upon it will not be set aside, unless it can be shown that a miscarriage of justice has occurred.
There is no closed list of circumstances which may be relevant but, it will certainly be necessary to demonstrate that there is a triable issue masked by the plea of guilty and that there is some reason to suppose that the plea was not a true plea. In Horsman v Bishop [2000] WASCA 316 (23 October 2000), Murray J said [5]:
The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge that, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an Applicant may insist upon pleading guilty. (Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ, at 510-11.
In the normal course, where a person is represented by counsel, the court is generally entitled to rely upon counsel having explained to an alleged offender the legal and factual matters necessary to allow that person to make an unequivocal plea of guilty – Lim v Bateman [2001] WASCA 307 [41].
The burden of proof is upon the applicant to satisfy the court on the balance of probabilities that the conviction should be set aside: Glover v Reyne [2001] WASCA 305.
The evidence of the applicant
The applicant relies upon his affidavit sworn 10 November 2016 in support of the application deposing that:
1.He had been in custody for approximately eight months when he entered his pleas of guilty.
2.At that time, he was depressed and, to some extent, he had given up on life. He wanted to plead guilty to 'get it over and done with so I did not disclose to [his lawyer] that I had not intended to destroy the evidence but rather I was attempting to take my own life'.
3.'I don't know why but I also did not want to talk about my suicide attempt to [his lawyer] so I did not tell her that this was the real reason that I ingested the drugs that I had on me'.
4.'I know I wasn't thinking clearly at that time and I just thought that these charges were the least of my worries as I was very concerned about the upcoming trial for the GBH charge' ie the alleged s 304 offence.
5.'After the GBH charge was discontinued by the prosecution I realised that I had made a mistake in not being forthcoming with information to [my lawyer] and giving up on the court process'.
Notably however, the affidavit does not assert that the applicant's former counsel did not explain to him the elements of the offence and have him discuss factual matters with her. Further, the affidavit does not assert that his former counsel did not explain the likely consequences of the pleas of guilty to the applicant.
In cross‑examination:
1.When asked if his former counsel provided him with advice about the charges, the applicant said 'I guess so'. However, he could not remember what he discussed with her.
2.He was not confused about his pleas of guilty. He would not say that he obstructed the police officer. He said that there was 'a lot of stuff which needs to be sorted' about that.
3.He did not want to wait. He wanted to 'get it all over and done with' so that 'I didn't have something holding over my back'.
4.He thought he would get a concurrent sentence on the alleged s 304 offence, which at that time, was still live and therefore, he did not want to waste any time going to trial on the present charges.
In re‑examination:
1.He said he did not think he was guilty of the two indictable offences. His lawyer told him that if he pleaded guilty then, she would get the other charges dropped.
2.In answer to leading questions, he said he was in a bad place in terms of his state of mind and did not intend to plead guilty.
However, this claim that he did not intend to plead guilty cannot be accepted. First, it was blatantly lead from him such that it carries little or no weight. Further, it is totally contrary to his other evidence about wanting 'to get it over and done with'.
The advice received by the applicant
When the matter came on for hearing on 2 March 2017, there was no information from the applicant's former counsel as to advice given to him by her. She is not his present counsel. The only information was that set out above in the applicant's affidavit.
The hearing on 2 March was adjourned to enable the applicant's present counsel an opportunity to approach the applicant's former counsel to seek information from her as to what advice may or may not have been given to him in respect of his pleas.
However, the applicant now says he declines to waive privilege and so his former counsel has not been approached to verify his claim that, in effect, he simply advised her that he would plead guilty as charged, without any real advice being provided to him. It seems to me however, that the applicant has already waived privilege in this application and that now, he really has just declined to seek any information from his former counsel. I do not draw any inference adverse to him from this. However, it is simply not known what his former counsel may be able to say.
Analysis
The applicant did not receive any benefit by plea negotiation before pleading guilty to the present two charges. The possession with intent charge seems to have been properly downgraded to a charge of simple possession and the possession of stolen or unlawfully obtained property properly remitted to Magistrates Court where the second possession of unlawful drugs charge had remained. Further, the s 304 charge was discontinued independently of, and after, the two present pleas were entered.
In Snook, Hall J said [106]:
An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].
So what is the miscarriage of justice?
The only reason which might indicate a miscarriage of justice is that the accused simply told his former lawyer that he would plead guilty, without there being any further discussion or advice as to those pleas and the elements of those offences, with those pleas ultimately being entered by him in the presence of counsel. It is not suggested that the applicant did not understand the charges. I have rejected his evidence that he did not intend to plead guilty. It cannot be said that he cannot in law be guilty of the two charges. The pleas were not improperly obtained. Mr Thatcher does not fit within any of the three categories referred to in Hall J in Snook. However, those three categories are not exhaustive.
Had the applicant explained to his former lawyer his reasoning for the pleas then, the pleas may not have been entered by reason that it should have been apparent to the accused and his former lawyer that at least in the case of count 2, the elements of the offence should not have been admitted.
The applicant confirmed in his evidence that he had wanted to 'get it over and done with' and believed that he would get a concurrent sentence on these two charges with the alleged s 304 offence which, as it turned out, was subsequently discontinued for reasons quite independent of his pleas to the present charges.
There is the uncontested affidavit evidence of the applicant that he pleaded guilty without telling his counsel the reason why he was so pleading, and it follows, without telling his counsel, matters which could reveal a defence to these charges but, he went ahead and entered his pleas in any event.
At best, the applicant has an arguable defence.
Throughout all of his court appearances, the applicant was represented by counsel who has not provided any evidence to assist him.
The court can generally rely upon counsel to explain legal and factual matters to an alleged offender. Mr Thatcher's affidavit does not assert that such was not explained to, and discussed with, him by his former counsel. In cross‑examination, he 'guessed' that his former counsel provided him with advice about the charges. His pleas of guilty were unequivocal.
It cannot be shown that a miscarriage of justice has occurred. There is no reason to suppose that the pleas were not true pleas.
Conclusion
I need to approach this application with caution. Mr Thatcher has not satisfied me on the probabilities that his convictions should be set aside.
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