Tsavalas v Police

Case [2016] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TSAVALAS v POLICE

[2016] SASC 103

Judgment of The Honourable Justice Doyle

8 July 2016

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA

A Magistrate convicted the appellant, upon his plea of guilty, of the offence of illegal use of a motor vehicle. The appellant appealed against this conviction on a number of grounds which in essence were that the circumstances in which he entered his guilty plea were such that there had been a miscarriage of justice. 

Held (per Doyle J), allowing the appeal:

1.       The combination of circumstances that existed when the appellant entered into his guilty plea warrant a conclusion that there was a miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 86A, referred to.
Cooling v Steel (1971) 2 SASR 249, discussed.

TSAVALAS v POLICE
[2016] SASC 103

Magistrates Appeal

DOYLE J:

  1. The appellant was convicted, upon his pleas of guilty, of the offences of contravening a term of a bail agreement and illegal use of a motor vehicle. 

  2. In this appeal against conviction, the appellant relies upon five grounds of appeal which are in essence a complaint that the circumstances in which he entered the guilty pleas were such that there has been a miscarriage of justice.

  3. On the hearing of the appeal, the appellant withdrew his challenge to his conviction for the breach of bail offence, acknowledging the lack of any defence to that charge.  The appeal was maintained in respect of his conviction for illegal use of a motor vehicle.

    Background

  4. As to count 1, the breach of bail contrary to s 17 of the Bail Act 1985 (SA), it was alleged that on 6 January 2016 the appellant attended 13 Mortimer Road, Berri, being the home of his mother, in breach of his bail agreement.

  5. As to count 2, the illegal use of a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA), it was alleged that the appellant, between 6 and 10 February 2016, used a motor vehicle without first obtaining the consent of its owner, his mother.

  6. The appellant attended a pre-trial conference before a Magistrate on 4 April 2016.  He was unrepresented.  The Magistrate asked the appellant whether he was ready to proceed with the pre-trial conference.  The appellant said that he was.  The Magistrate invited the appellant to take a seat at the bar table next to the prosecutor.  The Magistrate inquired “you’re not getting [a] lawyer?” and the appellant responded “no your Honour.”  The Magistrate asked whether the appellant knew how a pre-trial conference worked, and the appellant said “yes sir. Yes, I hope I do yes.”

  7. The Magistrate then said:

    Basically I am going to hear allegations from the prosecution, I am going to hear from you as to what basis you’re defending the charge.  I will give an indication to both of you as to what I think…

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Tsavalas v Police [2016] SASC 103
Case
[2016] SASC 103
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CaseChat Overview and Summary

In Tsavalas v Police, the appellant appealed against his conviction for illegal use of a motor vehicle and breach of bail, arguing that the guilty plea entered at a pre-trial conference should not be given effect. The appellant, who was unrepresented and had a limited command of English, had initially intended to plead not guilty but changed his plea to guilty during the hearing. The appeal centred on whether the appellant’s guilty plea should stand, given the circumstances under which it was made.

The court needed to determine whether the appellant's guilty plea was made in circumstances that warranted a conclusion of a miscarriage of justice. Specifically, it had to consider whether the appellant fully appreciated the seriousness and consequences of his plea, and whether he was afforded an opportunity to reflect or seek legal advice before changing his plea. The court also had to assess whether the appellant's version of events, if accepted, could provide a defence to the charge of illegal use of a motor vehicle.

The court concluded that the appellant's guilty plea should not be given effect because there was a significant risk that it was entered under pressure without a full appreciation of the consequences. The appellant's limited command of English, the blunt manner in which he was addressed by the Magistrate, and the lack of an opportunity to reflect or seek legal advice before changing his plea all contributed to this conclusion. The court found that the appellant would not have pleaded guilty if he had known about the potential licence disqualification.

Accordingly, the appeal was allowed in respect of the offence of illegal use of a motor vehicle, and the appellant's conviction on that count was quashed. The court did not address the breach of bail charge, as the appellant had withdrawn his appeal in relation to that offence.

Orders

Orders of the court

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Background

Background to the litigation

On the hearing of the appeal, the appellant withdrew his challenge to his conviction for the breach of bail offence, acknowledging the lack of any defence to that charge. The appeal was maintained in respect of his conviction for illegal use of a motor vehicle.Background As to count 1, the breach of bail contrary to s 17 of the Bail Act 1985 (SA), it was alleged that on 6 January 2016 the appellant attended 13 Mortimer Road, Berri, being the home of his mother, in breach of his bail agreement. As to count 2, the illegal use of a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA), it was alleged that the appellant, between 6 and 10 February 2016, used a motor vehicle without first obtaining the consent of its owner, his mother. The appellant attended a pre-trial conference before a Magistrate on 4 April 2016. He was unrepresented. The Magistrate asked the appellant whether he was ready to proceed with the pre-trial conference. The appellant said that he was. The Magistrate invited the appellant to take a seat at the bar table next to the prosecutor. The Magistrate inquired “you’re not getting [a] lawyer?” and the appellant responded “no your Honour.” The Magistrate asked whether the appellant knew how a pre-trial conference worked, and the appellant said “yes sir. Yes, I hope I do yes.” The Magistrate then said:Basically I am going to hear allegations from the prosecution, I am going to hear from you as to what basis you’re defending the charge. I will give an indication to both of you as to what I think might be the result, if that resolves the matter that’s fine. You can ask me if it’s against you and my comments are not in your favour, you can ask me what the penalties are likely to be if you were to enter a plea of guilty, but if you want to maintain a plea of not guilty the matter will be listed for a trial. The Magistrate inquired whether the appellant understood what this meant, and he said that he did. The Magistrate asked “are you contesting the breach of bail?”, and the appellant responded “yes sir”. The Magistrate called on the prosecutor to read the allegation in respect of the first count, which the prosecutor did (in essentially the terms set out above). The following exchange then occurred:HIS HONOUR: Do you agree or disagree with that?DEFENDANT: Yes sir.HIS HONOUR: Yes sir what?DEFENDANT: I was asked to pick up the car sir.HIS HONOUR: Beg your pardon?DEFENDANT: I needed to pick up the car.HIS HONOUR: The bail agreement says you weren’t supposed to go to your mother’s house.DEFENDANT: I didn’t go to the house I was outside, I was on the road. I did not enter the property.HIS HONOUR: Did he enter the property or did he not enter the property.PROSECUTOR: The mother states she was at home when her son Kristos came to her house, he’s been coming around from time to time and getting things from the shed. He is on a bail agreement at the moment saying he is not to come to my house. This time he came and spoke to me, he told me he needed to take my car. He said he had a new job and he needed it to get there. He said his car was broken so he needed mine. I felt pressured like I had to let him take it. I said he could use it for two days and no more. I said bring it back this Friday. I let him take the keys and he left in the car. The car was a Holden Commodore sedan. It is now the 17 January when she’d given this statement and she hasn’t heard from him or seen her car since.HIS HONOUR: Right. So you must have gone on to the property to get the car?DEFENDANT: Yes.HIS HONOUR: So you did go onto the property?DEFENDANT: Yes I was given approval.HIS HONOUR: No you weren’t given approval because you weren’t supposed to go there in the first place were you?DEFENDANT: Correct.HIS HONOUR: The bail agreement says you can’t go there. So first of all you told me you didn’t go on the property which is a lie, then you tell me you did go onto the property. Now your mother said, she says that you were supposed to bring the car back and you still haven’t.DEFENDANT: The car is back sir.HIS HONOUR: When did you take the car back?DEFENDANT: No, the police picked up the car.HIS HONOUR: Right so you didn’t take it back voluntarily?DEFENDANT: No sir.HIS HONOUR: So count 2 you’re guilty.DEFENDANT: Correct.HIS HONOUR: So you’re pleading guilty to the charges today?DEFENDANT: I have to sir yes.HIS HONOUR: I’ll read the charges. On 6 January of this year at Berri without reasonable excuse you contravened a term or condition of your bail entered into at Berri Police Station on 7 November 2015. Do you plead guilty or not guilty?DEFENDANT: Guilty your Honour.HIS HONOUR: In relation to count 2. Between 6 January 2016 and 10 February 2016 you used a motor vehicle without first obtaining the consent of Stravroula Tsavalas the owner thereof. Do you plead guilty or not guilty?DEFENDANT: I plead guilty.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is not difficult to imagine that an unrepresented litigant, particularly one unfamiliar with legal processes and with a less than perfect command of English, might feel a degree of pressure when challenged in the way the appellant was challenged by the Magistrate, including to the point of being accused by the Magistrate of telling a lie. The appellant was not prevented from mentioning his ‘defence’ that there was no condition attached to his use of the car. However, I accept his evidence that he felt unable in the circumstances to explain his position, or at least felt that the Magistrate was unlikely to be receptive to any attempt by him to do so.Conclusion Drawing the above threads together, it is my view that the combination of circumstances in this case warrant a conclusion that there has been a miscarriage of justice. I refer in particular to the following matters: the appellant was unpresented; he had not obtained any legal advice prior to the hearing; he had a potential defence on the facts to the charge of illegal use of a motor vehicle; he intended to plead not guilty and (at least in relation to the breach of bail) informed the Magistrate of this position at the start of the hearing; he had a relatively limited command of the English language; he was addressed in very blunt and direct terms by the Magistrate which, bearing in mind the authority those observations by the Magistrate likely carried, left the appellant feeling unable to explain his factual ‘defence’; he did not appreciate, and did not have explained to him, the potentially serious consequences of a conviction for the offence of illegal use of a motor vehicle, including not only a term of imprisonment but also a mandatory licence disqualification for 12 months. In my view, this combination of circumstances required, as a matter of fairness, that the appellant be afforded a moment of informed reflection upon it becoming apparent that his position had changed to an intention to plead guilty. Ideally the Magistrate should have made a greater effort earlier in the hearing to ascertain from the appellant the basis for his intended defence of the charge of illegal use of a motor vehicle. But in any event, once it became apparent that the defendant had changed his intention to a plea of guilty, at that point the appellant should have been warned of the potential consequences of a plea of guilty, and given an opportunity to reflect or seek legal advice. On the appellant’s evidence, if he had been informed that he stood to lose his licence, he would not have pleaded guilty. In summary, I consider there is a significant risk that the guilty plea entered by the appellant was entered in circumstances where the appellant lacked a full appreciation of the seriousness and consequences of this step, and was the product of a relatively spontaneous decision made under a degree of pressure (rather than a plea which represented either an informed choice or consciousness of guilt in the sense discussed in the authority). I am satisfied that to allow the guilty plea to stand in respect of the offence of illegal use of a motor vehicle would occasion a miscarriage of justice.

Ratio Decidendi

Legal Principle Established

The appellant described becoming upset once the sentence was pronounced, and in particular upon realising it involved a licence disqualification. The appellant explained that he lives in the Riverland, and needs his licence for work and also to drive the considerable distances between properties and towns. He also said that he needs his licence to drive to Adelaide to see his teenage sons. He said that had he known that his licence would be disqualified as a consequence of pleading guilty, he would not have done so at the pre-trial conference. Consideration I commence by observing that the charges and facts alleged against the appellant were relatively simple and of a narrow compass. The appellant does not allege that he was mistaken as to any issue of fact at the time he entered his pleas. Nor is this a case involving any allegation of fresh evidence that the appellant now wishes to rely upon. Turning to the grounds of appeal, I address first ground 3, namely that the facts (at least on the appellant’s version) were inconsistent with the plea of guilty. While some consideration of the merit of the case against the appellant is relevant, it is neither possible nor appropriate to reach any firm conclusion as to the merit of the allegations in the circumstances of an appeal such as the present. As mentioned, the law recognises that guilty pleas may be entered, and appropriately given effect by the Court, for reasons that do not necessarily reflect either a consciousness of guilt on the part of the defendant, or indeed that the defendant is in truth guilty of the charges alleged. The appellant now accepts that he did not have a defence available in respect of the breach of bail charge, and so has withdrawn his appeal in relation to that offence. The position is less clear in relation to the illegal use of a motor vehicle charge. The mother’s version of events is probably capable of sustaining the charge. However, if the appellant’s version of the facts is accepted, then he may well have a defence to the charge. While not decisive or sufficient, it is relevant that there is at least some prospect of a defence succeeding in this matter. In relation to grounds of appeal 4 and 5, the appellant complains that the Magistrate did not advise him to seek legal advice or give him any indication as to the likely penalty before accepting his pleas of guilty. As to the former, the Magistrate did, at the outset of the hearing, query whether the appellant was ready to proceed and to do so without a lawyer. In that sense the appellant was at least given an opportunity to consider whether he wished to proceed without representation. The appellant opted to proceed without representation. This is consistent with the appellant’s affidavit in which he made it plain that he considered whether to get legal representation but opted not to, albeit at least in part because of his limited financial means and his view as to the limited seriousness of the charges he was facing.