The State of Western Australia v C P S
[2021] WADC 112
•22 NOVEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: ALBANY
CITATION: THE STATE OF WESTERN AUSTRALIA -v- C P S [2021] WADC 112
CORAM: STAUDE DCJ
HEARD: 15 NOVEMBER 2021
DELIVERED : Ex tempore
PUBLISHED : 22 NOVEMBER 2021
FILE NO/S: IND ALB 27 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
C P S
Catchwords:
Criminal law - Application to set aside convictions entered on pleas of guilty - Whether inherent jurisdiction to set aside convictions should be exercised - Whether miscarriage of justice if convictions not set aside - Turns on own facts
Legislation:
Nil
Result:
Application to set aside convictions dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr G Huggins |
| Accused | : | Ms L Boston |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | CWS Lawyers |
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19
Meissner v The Queen (1995) HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia (No. 2) [2015] WASCA 29
The State of Western Australia v Williams [2018] WADC 68
STAUDE DCJ:
These reasons for decision were given ex tempore on 15 November 2021. The transcript has been edited to anonymise the accused and to correct grammatical and syntactical errors and infelicities.
Introduction
CPS stands convicted of four counts of sexual offending against a child of or over the age of 16 years who was then in his care, supervision or authority. He is before the court for sentence having entered pleas of guilty when he was arraigned on 7 September 2021. Judgments of conviction were entered on that occasion.
CPS now applies for the convictions to be set aside and pleas of not guilty entered. He invokes the court's inherent jurisdiction at common law to set aside the convictions on the basis that if they are not set aside, he will suffer a miscarriage of justice. A miscarriage of justice in this context means the risk that an innocent person will be wrongly convicted and punished.
Counts 1, 3 and 4 are of sexual penetration and count 2 is a charge of indecent dealing. Count 1 is alleged to have been committed on or about 12 March 2016, counts 2 and 3 on an occasion between 14 July 2016 and 15 July 2017, and count 4 within the same period.
Factual background
CPS's sister, EG, and her husband were foster parents to a number of children who were placed with them by the Department of Communities. CPS and his wife were approved as interim carers on 3 December 2012 to provide short-term care for EG's foster children. They were approved as significant other carers on 4 April 2014 and on that date, they were specifically approved to care for the complainant.
CPS and his wife provided what is described in the brief as 'short breaks care' to the complainant between 4 April 2014 and 22 May 2019. A table annexed to a letter from the Department of Communities to Albany Police dated 6 April 2021 shows that the complainant was in the care of CPS and his wife for short periods in March 2016, January 2017, February 2017, March 2017 and April 2017.
It is not in issue that CPS was in the position of an approved carer throughout the period of alleged offending when the complainant was aged 16 or 17 years. In that period, he was aged 30 - 32 years. It otherwise appears from the complainant's statement and CPS's police interview that the two had regular contact by reason of CPS's relationship with his sister. The complainant referred to CPS as her uncle.
Statement of material facts
The State's case is that on the occasion of count 1, CPS, while staying at the home of his sister, had penile-vaginal sex with the complainant. She was aged 15 years and 8 months. On the complainant's account, that incident was the start of a sexual relationship with CPS that led to their having sexual intercourse on about 50 occasions up to her 18th birthday, the relationship continuing beyond that time until early 2020.
It is alleged that counts 2 and 3 were committed when the complainant was aged 17. She obtained her learner's permit on 8 July 2016, about a week before her 17th birthday. It is alleged that about six months after she obtained her learner's permit, while taking her for a driving lesson in his wife's Ford Focus sedan, CPS told the complainant to pull over onto a dirt track. At that time, they were driving towards Bayonet Head. It is alleged that the two got out of the car and walked somewhere into the bushland, where they engaged in sexual activity.
Count 4 relates to an incident that is said to have occurred at around the time of the incident the subjects of count 2 and count 3, when the complainant and CPS were again together in the Ford Focus sedan. The vehicle was parked in an area behind the Coles supermarket in Orana. The two had sexual intercourse whilst in the car.
It is also alleged that CPS and the complainant exchanged nude photographs of themselves.
On the complainant's account, she told a friend, TH, about her relationship with CPS in January 2020. A couple of months later, she told TH that she had ended the relationship. TH was a close friend of EG and in about December 2020, TH told EG what the complainant had told her. It appears to be common ground that at the beginning of February 2021, EG told CPS that she was going to advise the department that the complainant had made up the allegations.
Admissions
On 6 February 2021, before any formal complaint had been made to the police or the department, CPS and his wife attended the Albany Police Station. CPS said that he had been the victim of rape. He said that he had had a sexual relationship with the complainant that commenced in 2016 when she was 16. He said that the complainant used threats to make him sleep with her on multiple occasions over two years.
The following day, 7 February 2021, CPS was interviewed by detectives at the Albany Police Station. According to the statement of Detective Senior Constable Christopher Bell, CPS was not arrested, but was given the same rights as an arrested suspect, and an audio visually recorded interview was conducted.
In the interview, after being cautioned and acknowledging that the interview could be played in court, CPS told the police, among other things, but relevantly:
1.He was approved as a respite carer to look after children who were in the care of his sister and her husband when they were away (ts 6). He took the complainant for driving lessons. His sister would ask him to help out by taking the kids to appointments and picking them up (ts 28).
2.The complainant had raped him while he was looking after her and other children at his sister's house (ts 5). He was asleep on a mattress in the loungeroom when he awoke to sharp stinging pains in his penis and found the complainant on top of him trying to have sex with him (ts 6). He thought his penis was in her vagina (ts 11). He pushed her off straightaway. He had an erection (ts 13). This incident occurred the night before his son's third birthday which was on 13 March (ts 7). He thought the complainant was 15 or 16 (ts 32 - ts 33).
3.On the day after that incident, the complainant told him that if he did not have sex with her again she would tell the Department of Child Protection and they would take his son away from him. He was shocked and scared (ts 13). She said she loved him and wanted to be with him. He told her she was a cruel person (ts 32).
4.He tried to distance himself from the complainant as much as he could but she would write letters to him all the time.
5.The next occasion that he remembered was taking her for a driving lesson in a Ford Focus sedan (ts 15). He took her to the Coles Orana carpark to practise parking (ts 20). She parked the car behind the loading bay. They had sex in the passenger seat, the complainant on top of him. He ejaculated. He said that when he was having sex with her he felt like he wanted to kill himself (ts 16). Sex with the complainant was never physically enjoyable (ts 7). He thought she was about 17 (ts 33).
6.There was an incident at a farmhouse in Narrikup when CPS came inside to find the complainant naked on the dining table. She told him to have sex with her which he did. They were interrupted when his young nephew came in. He had an erection but was not physically attracted to the complainant. He admitted grabbing her breast (ts 17 - ts 19). He thought she was about 17 (ts 33).
7.There was another incident when he was taking the complainant to work at Whale World in his Pajero vehicle. The complainant asked him to turn into an access road just past the shooting range on Frenchman Bay Road. They were in the back of the vehicle. The complainant put his penis in her mouth, it became erect, they then had sex to ejaculation (ts 22).
8.There was another incident when they were camping at Black Creek. CPS's wife was not present. The complainant said that she was going to come into his swag and to be prepared for her. When she came and tried to unzip it, he started yelling at her and told her to go away. She ran off. His son was in the swag and he could hear other people's voices (ts 37).
9.There were other occasions that he could not remember. He thought there were 5 - 10. He could not remember the last time he had sex with the complainant. He thought probably 2019 (ts 24).
10.When the relationship ended the complainant sent him emails and messages. She sent pictures of herself to him. He sent pictures to her of his private parts on five or six occasions. He deleted the emails received and sent so his wife would not see them (ts 25 ‑ ts 26).
11.He thought that by sending photographs of his genitals the complainant would get some enjoyment and that would be enough for her (ts 37).
12.He did not enjoy sex with the complainant. It hurt. It was never pleasant. He was threatened by her saying that she would speak to EG or her husband.
Committal and arraignment
CPS was charged later the same day. He made his first appearance in the Albany Magistrates Court on 18 February 2021 represented by Ms Sherrington. Protective bail conditions were imposed, and a suppression order was made with respect to his identity. At a further hearing on 13 May 2021, CPS was committed for trial. At the first trial listing hearing in this court on 7 September 2021, Ms Sherrington informed the court as follows:
Your Honour, the matter was listed for a trial listing hearing. Overnight I've received instructions that [CPS] will plead guilty to the matters as indicted. So perhaps if he could be arraigned according to the indictment?
CPS was subsequently formally arraigned and entered pleas of guilty to each count. Judgments of conviction were recorded and the matter was then adjourned to this day for sentence. CPS has now changed lawyers. By application dated 8 November 2021, he applies for an order that the convictions entered on 7 September 2021 be set aside in the interest of justice.
CPS's affidavit
CPS has sworn an affidavit in support of the application in which he asserts that he was pressured into pleading guilty to the offences and is not guilty of any of the four counts.
He said that he was never provided with proper legal advice and that he never received a copy of the prosecution brief. His instructions were never taken as to the complainant's statement or other statements. His lawyer never met him face-to-face and did not take proper instructions except in respect of count 1 which he always maintained was an unwilled act. CPS stated that he was advised that he had no defence to counts 2 and 3, even though he had told his lawyer that no sexual acts occurred at Bayonet Head.
His instructions were not taken as to when the act alleged in count 4 took place and, specifically, he was not advised that he could not be found guilty unless the State proved that the complainant was under the age of 18 years when it happened. CPS stated that he was advised to maintain his not guilty pleas up until 3 September 2021. He was told late that day for the first time that he would be convicted because the complainant's statement corroborated what he said in his police interview, that the evidence was too strong and that it would be expensive.
He said he was advised on that day to seek a plea deal, and on 6 September advised that the plea offer was rejected, at which time he said that his lawyer strongly advised him to change his pleas to guilty. CPS stated that he does not accept that the Coles incident, the subject of count 4, occurred when the complainant was 17. He stated that it occurred in November 2017 when she was 18 years old. CPS in his affidavit admitted that he received a copy of the prosecution notice and a copy of the statement of material facts.
He stated that he was given an estimate of legal fees for the matter if it went to trial. He stated that he was not told what a committal hearing was. He stated that Ms Sherrington spoke to him on 18 February 2021 and told him that the matter was adjourned for disclosure, that she had to look at the brief of evidence, and that she would come down to Albany a couple of days before the next court appearance and meet with him about the brief. That meeting never occurred.
He said Ms Sherrington told him she would write to the Director of Public Prosecutions (DPP) about there not being enough evidence. According to his affidavit, CPS recalls on that occasion talking to Ms Sherrington about what was in the statement of material facts and that he told Ms Sherrington that:
1.The complainant's account with respect to count 1 was untrue, he did not consent to sex, he did not put his penis inside her.
2.In relation to counts 2 and 3, that there was never an incident that occurred down a dirt track in Bayonet Head and that he had never been to that place with the complainant.
3.In relation to count 4, that he did have sex with the complainant behind the Coles supermarket in Orana when he was giving her a driving lesson, but he did not discuss with Ms Sherrington how old the complainant was at that time.
CPS stated that he was informed by Ms Sherrington prior to the committal mention that she was unable to travel to Albany for medical reasons. She told him that another lawyer could fly to Albany if he wished. Alternatively, she would appear by telephone. CPS responded by saying that he did not see the need for anyone to fly down for the hearing. He paid a sum of money on account of costs on 11 May 2021.
On 12 May 2021 he received an email from Ms Sherrington advising that the prosecution had a prima facie case, but that 'the standard of proof was higher at trial where the evidence could be tested'. Ms Sherrington said:
My advice is that tomorrow we allow the matter to proceed to the next stage, then we can go through the evidence together and commence some meaningful discussions with the DPP rather than the police. This will streamline the matter and be the most cost-effective without causing any detriment to your case.
Are you happy for me to do that tomorrow?
CPS responded to the effect that this sounded like the best option. At that stage, however, he had not been through the brief. Subsequently, the committal hearing occurred, and a few days later further funds were paid on account of costs. CPS said he communicated with Ms Sherrington on 13 August 2021 via telephone. He said:
Ms Sherrington advised me that the matter that should proceed would be the first charge and that would come down to my consent, which wasn't given. Ms Sherrington did briefly mention a need to advise me about sentencing discounts for early pleas, but I would need to plead guilty for that to happen. We also spoke about my financial difficulties and Ms Sherrington said they could put a payment plan in place if I needed it. Ms Sherrington mentioned a directions hearing to try to get my recorded interview excluded and getting medical evidence about a male getting and maintaining an erection without wanting to, and she wanted to push for a judge alone trial as they would be more impartial. She mentioned that lesser charges may be offered by the prosecution.
CPS had a further conversation with Ms Sherrington on 3 September 2021. He stated:
In this call Ms Sherrington said that she had received the indictment, that she could try to have my recording dismissed at a directions hearing, but there would be additional costs. In the event Ms Sherrington said I could be convicted on [the complainant's] word alone. Ms Sherrington told me that she thought a jury would find me guilty on all four charges.
She said we should try to do a deal with the DPP and try to reduce the four charges to two by pleading guilty to the two remaining charges. She said she would make application on my behalf to have my sentence suspended or made out in the form of community service if I plead guilty to two charges. If I went to trial and was convicted, a harsher sentence would be imposed, and I would have to serve time.
CPS stated that he then responded by SMS:
We spoke last night. So everything is out on the table now. After thinking about things, I think it would be in everyone's best interests if we tried to make a deal.
CPS said that Ms Sherrington never told him that he should not plead guilty if he was not guilty and never told him what the maximum sentence would be or that he could have time to think about his position.
On 6 September 2021, Ms Sherrington sent CPS an email attaching the indictment and a draft of submission to the DPP and sought his instructions to send it. CPS stated that he did not understand the draft letter and did not know what to do. So he sent Ms Sherrington an SMS that day, asking her about counts 3 and 4, stating:
Sorry, Naomi. I thought we were going to try for a lesser charge on counts 3 & 4.
Ms Sherrington responded by SMS the same day, stating that as there was no lesser charge available on the evidence and that as the complainant's statement corroborated what he said to the police, she could only seek a reduction in the number of charges. CPS stated that Ms Sherrington advised by SMS:
If there was a viable defence to run at trial, I would advise you of it. I don't think there is. Unfortunately, after reviewing the evidence, my view is that a jury would convict you. I'm sorry. I know this is difficult, but I do need your firm instructions on whether or not to send the submission.
CPS stated that he felt pressured by his lawyer to respond. He told her that he needed to talk to his wife. Later that day, he sent a text message:
I'm curious as to why no one has spoken to Nathan who I confided in when it happened and Cody who was sharing the same bedroom as her.
Later that day, Ms Sherrington sent CPS a text, saying that the prosecution had not accepted her submission and intended to proceed to trial. Subsequently, there was an email exchange, including advice by Ms Sherrington in the following terms (CPS affidavit [50]):
With respect to your matters, I thought it prudent to confirm in writing our phone conversations and text message exchanges so as to consolidate all advice. There are currently four counts on the indictment and the evidence the prosecution has is as follows:
•Your recorded statement under caution to police. You were provided your right to silence and cautioned appropriately, making this recording admissible for the jury to hear;
• The statement of the complainant, which corroborates all of what you have said to the police.
The prosecution case is very strong. It includes recorded admissions, confessions, statements against interest by you, which are then corroborated by the statement of the complainant. As discussed, the defence of unwilled act might be available for count 1, on the mattress while you were asleep. This would require expert medical evidence, which would be tested at trial.
With respect to counts 2, 3 and 4, your instructions raise the offence of duress. It is our view that even if your friend Nathan corroborated your version in court, the defence of duress would not be accepted by a jury as there were other options open to you to overcome her threat other than to continue a sexual relationship with the complainant.
On your instructions, we sent a submission to the DPP to discontinue counts 1 and 2, on a plea to counts 3 and 4. This submission has been rejected. The prosecution is proceeding to trial on all four charges. Please advise whether you wish to proceed with listing the matter for trial, whether you wish to enter pleas of guilty to the charges.
CPS responded by email:
If I plead guilty does that mean I will be sentenced tomorrow as well?
He was then advised that sentencing would be on a later date. He then emailed Ms Sherrington:
And if we proceed to trial? It wouldn't matter either way would it? I'd be found guilty of all 4 charges regardless.
Ms Sherrington's response by email was:
The evidence of the prosecution is very strong, and the likelihood of the jury finding you had a lawful defence such as duress is, in our view, minimal.
The prosecution are asking for an early listing of this trial - they are seeking that the trial date be a priority 3 trial on 20 September 2021 or a priority 2 trial on 1 November 2021.
CPS responded by email:
Ok. So I guess we go in with a guilty plea and get it over and done with. Do you know what kind of sentence these charges carry? Would there be any kind of leniency for a clean record or anything like? What about character references for her and myself?
What is the difference between priority 3 and priority 2 listings?
Ms Sherrington responded that the counts carried terms of imprisonment and the question for the court would be whether the sentences be served in a correctional facility or in the community pursuant to a suspended or partially suspended imprisonment order. That would be an argument that she would make on his behalf, noting prior good character and the fact that the offences would not have come to light but for him attending at the police station. Character references would be useful, as would a psychological report, if he was being treated for any mental health concerns. CPS responded that he was not, and in a subsequent email he said:
Does it matter if I plead guilty or go to trial? The references will still be able to be used in either case? I don't see any reason to go to trial apart from attacking her credibility which I don't see will do me a great deal.
Ms Sherrington responded with advice that character references were not usually used at trial, but were considered at sentence. She said the only reason to go to trial was if they thought that the prosecution could not prove the charges beyond a reasonable doubt.
In a further email later that evening, CPS wrote:
Okay. Thank you, Ms Sherrington.
I don't really see any point in going ahead to trial. I'm pretty sure I will plead guilty tomorrow. 15th of November will give me time to see family and friends that I need to. My uncle had a stroke and is suffering from bowel cancer in Bunbury so that will give me some time to go and see him before sentencing. What will happen tomorrow? Is it the same as the previous court appearances? I won't be held in custody, will I?
CPS subsequently confirmed that he would plead guilty, and he did so when arraigned on 7 September 2021. CPS stated in his affidavit that he was advised to plead guilty shortly before his District Court appearance. This was 'an about face' to his lawyer's previous advice. He said that he was told that no jury would believe him. He said that he had paid for his lawyer's legal opinion and had to take it on board. He said he was not told that he could take more time to consider and go through everything with her, including the brief.
He said he felt improperly pressured to enter pleas of guilty, even though his instructions had not changed. He was not told that he should only plead guilty if he was guilty. He said that he did not understand that he would have to adopt the conduct laid out in the charges as being the truth. He said it was not true.
CPS said in the affidavit that he was not told that if he pleaded guilty he would still be looking at a significant term of imprisonment. He was not told about the sex offender register or victim compensation. His affidavit concludes:
The reason I pleaded guilty to the four counts on the indictment is because Ms Sherrington said I don't have a choice because even if I go to trial a jury will convict me, the evidence is too strong against me, it would be expensive and as we were already having trouble paying her fees I could not afford to go to trial, and it was the best chance of leniency. I felt pressured to plead guilty to offences I did not commit.
Principles
The inherent jurisdiction of the court to set aside a judgment of conviction based on a plea of guilty and to allow a plea of not guilty is well established. The court is not functus until sentencing has been completed. The inherent jurisdiction was acknowledged by Mazza and Mitchell JJA in Birch v The State of Western Australia [2017] WASCA 19, Mazza JA [170] - [177], [213]; Mitchell JA [255].
In The State of Western Australia v Williams [2018] WADC 68, Sleight CJDC dealt with the issue of the court's inherent jurisdiction to set aside a plea of guilty after a judgment of conviction has been entered, but before sentence, holding that there was an inherent jurisdiction that was not fettered by the Criminal Procedure Act2004 (WA).
While the categories are not closed, the circumstances in which a miscarriage of justice will justify the setting aside of a plea of guilty are generally:
1.Where the accused did not understand the nature of the charge or did not intend to admit guilt.
2.Where on the admitted facts the accused could not in law have been guilty of the offence.
3Where the plea of guilty was obtained by improper inducement, fraud, intimidation, and the like.
These are not the only circumstances that might justify a change of plea. A change of plea should be permitted by the court whenever not to do so would result in a miscarriage of justice: Snook v The State of Western Australia (No. 2) [2015] WASCA 29 [103].
A person charged with an offence is free to plead guilty or not guilty to the charge, whether or not the person is in truth guilty or not guilty. The 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 the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the person entering it is not in truth guilty of an offence: Meissner v The Queen (1995) HCA 41; (1995) 184 CLR 132, 141.
A person may plead guilty upon grounds which extend beyond that person's belief in his or her own guilt. As Dawson J pointed out in Meissner, a person may plead guilty 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 or she would if convicted after a plea of not guilty (157). The entry of a plea of guilty on grounds such as these nevertheless constitutes an admission of all of the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside unless it can be shown that a miscarriage of justice has occurred or will result if the conviction is not set aside.
Attempts to change a plea are approached by the courts with caution bordering on circumspection. See Liberti v The Queen (1991) 55 A Crim R 120; Snook [104]. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to being an admission by the person of the necessary ingredients of the offence. It is, therefore, not easy to persuade a court to set aside a plea of guilty on the basis of a possible miscarriage of justice and that is particularly so when CPS has had the benefit of legal advice, as CPS has had in this case.
The thrust of CPS's submission is that he was pressured into entering pleas of guilty by his lawyer, who did not give him full advice and did not give him sufficient time to consider his position. CPS maintains that he is not guilty of count 1, because he was not the perpetrator, but rather the victim of a sexual penetration without consent offence committed by the complainant, it being an unwilled act on his part; that he was not guilty of counts 2 and 3 because he never committed the acts alleged; and that he is not guilty of count 4 because the complainant was at the time 18 years of age and, therefore, not a child.
I have been attentive to the submissions made by counsel on CPS's behalf. I appreciate that criticism can be made of the conduct of CPS's lawyer in as much as no opportunity was taken before accepting his instructions to indicate to the court that he would plead guilty to the charges on indictment before a face-to-face meeting in which CPS had an opportunity to go through the prosecution brief, including the complainant's statement, with his lawyer.
And I accept also that the advice of Ms Sherrington that duress was not a viable defence did not respect CPS's instructions that the acts alleged in counts 2 and 3 did not occur, and that with respect to count 4, while the act was admitted, it was denied that the complainant was a child.
However, having considered these submissions and the affidavit of CPS, I am satisfied that he did understand the nature of the charges to which he entered pleas of guilty. There is no question that he intended to admit guilt.
His correspondence with Ms Sherrington at the time prior to the arraignment on 7 September 2021 discloses a clear understanding of what he was charged with. The correspondence also shows that CPS took time to make a decision to plead guilty. Indeed, there is nothing in the affidavit that suggests that CPS did not understand the nature of the charges. Nor does the affidavit depose to any real ambivalence in his decision to plead guilty, particularly when regard is given to the terms of the email exchanges on 6 and 7 September 2021, prior to the arraignment.
In CPS's message to Ms Sherrington on the eve of the trial listing hearing he said he saw no point in going to trial and was pretty sure that he would plead guilty. The following morning he confirmed by email that he would plead guilty.
It is not argued that on the statement of material facts CPS could not in law have been guilty. The possibility that he may not have committed the pleaded offences is not in itself a reason to set aside the convictions.
CPS is not pointing to any improper inducement, fraud or intimidation that might be seen to vitiate his pleas.
That he was advised that he was likely to be found guilty is not remarkable in circumstances where he had admitted to the police numerous occasions of sexual activity with the complainant when she was age 16 or 17 years of age and when she was under his care. It was reasonable of Ms Sherrington to advise him that the jury was likely to convict him of count 1, given his admission and notwithstanding his assertion that the complainant was the perpetrator of an offence against him.
As far as counts 2 and 3 are concerned, CPS, while he did not confess to sexual acts with the complainant at a place near Bayonet Head in the Ford Focus sedan, did give a detailed account of another incident of a similar kind, where he pulled off the road on the way to Whale World and engaged in sexual activity with the complainant in the back of the Pajero vehicle that he had at the time. In relation to count 4, CPS made an admission in his police interview that he thought the complainant was 17 at the relevant time.
CPS's admissions would have made the complainant's evidence highly credible in respect of the instances that she described. The contention (made in his police interview) that on all occasions he was acting under some form of duress, being threatened with exposure if he did not participate in sexual activity with the complainant, was untenable and it would appear that CPS himself had relinquished that position by the time he came to plead guilty.
But it was certainly the basis upon which he complained to the police that acts had occurred for which he was not responsible and which would otherwise constitute offences by him. The facts would not have satisfied the legal requirements of a defence of duress, as Ms Sherrington advised, and I consider that her advice in that respect was given in the interests of completeness, having regard to the position that CPS had previously taken in his police interview.
As for the issue as to whether there were acts as alleged in counts 3 and 4 that occurred at a place near Bayonet Head, this is simply a matter of fact. CPS can be taken to have understood the allegations and to have elected to plead guilty to them, notwithstanding that he did not accept that such an incident occurred.
While CPS did not confer face-to-face with Ms Sherrington, it is clear from the correspondence annexed to his affidavit that he was advised in respect of his position and in respect of the options that he had. It may not have been the most fulsome advice that he might have received, but he had the option of obtaining further advice, or asking further questions. There is nothing in the affidavit which suggests that CPS lacked an appreciation of the position in which he was put by reason of being charged with these matters.
He was at liberty to reject the advice that he was given by his lawyer to obtain other advice if he saw fit. It is clear from the correspondence that Ms Sherrington left it up to CPS to make the decision whether to plead guilty. Given the admissions he had made in his interview with the police, the case against him was very strong, if not overwhelming. I am not satisfied that CPS lacked appropriate legal advice to the extent that it created pressure upon him to enter pleas of guilty that were not entered in the free exercise of his will.
To the contrary I am satisfied that his lawyer gave advice from time to time that permitted CPS to make his own decision as to his eventual plea. There was nothing said or intimated in her advice that could reasonably be construed as pressuring him to plead guilty. Indeed, no pressure has be shown to have been brought to bear on CPS to plead guilty. The email exchanges between him and his lawyer show that he was advised as to his position. Instructions were sought whenever the need arose.
I am satisfied that he understood the charges on the indictment and he was aware, having been given a copy of the document by the police, of what the statement of material facts contained. The email correspondence shows that CPS was very much alive to the choices that he had. He indeed acknowledged having taken time to consider his position. He did not in any way signal to Ms Sherrington that he was placed under pressure by reason of lack of time.
I am not satisfied that financial pressure compelled the entry of the guilty pleas, or that it would in any event be capable of vitiating those pleas so as to render the conviction a miscarriage of justice.
On the materials before me, CPS made compromising admissions of sexual activity with the complainant when she was aged 16 or 17 years. Whilst under caution, he admitted to a number of occasions of sexual activity with her. Two of them corresponded in detail to the complainant's subsequent account: the first incident, the subject of count 1, and the third incident, the subject of count 4. The incident the subject of counts 2 and 3 was described by the complainant as having occurred near Bayonet Head when the two had been travelling in CPS's Ford Focus sedan. It is similar in some respects to the account given by CPS of an occasion when he pulled into an access road off Frenchman Bay Road and had sex with the complainant. On his own admission, there were occasions of sexual activity he could not remember.
There is, in my considered view, no hint of any potential for a miscarriage of justice if the court were not to disturb the convictions. In my opinion, the circumstances in which the exercise of the court's inherent power can be exercised have not been shown to exist in this case, and accordingly I dismiss the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude
22 NOVEMBER 2021
0
4
1