Tsavalas v Police
[2016] SASC 103
•8 July 2016
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 103Magistrates Appeal
DOYLE J:
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.
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.
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.
After some further short exchanges in relation to matters relevant to penalty, the Magistrate delivered ex tempore sentencing remarks. The Magistrate indicated that the appellant would be given credit for his pleas of guilty. In respect of the breach of bail, the Magistrate ordered that a conviction be recorded and that the appellant do 40 hours of community service. In respect of the illegal use of a motor vehicle, having noted the uncommon circumstances that the vehicle belonged to his mother and that his use involved failing to return it in contravention of a condition that he do so within two days, the Magistrate concluded that there was good reason to suspend the period of imprisonment he intended to impose.
The Magistrate ordered that there be a conviction recorded and a sentence of imprisonment of six months, suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for 12 months. The Magistrate also ordered that there be a disqualification of the appellant’s driver’s licence for a period of 12 months. This licence disqualification was a mandatory penalty for the illegal use of a motor vehicle offence under s 86A(2) of the Criminal Law Consolidation Act.
Legal principles
In the ordinary course, a plea of guilty is an admission of all of the essential elements of the charge.[1] It is sometimes described as the most cogent admission of guilt that can be made, its significance resting in part upon the high public interest in the finality of legal proceedings.[2] It follows that a court will ordinarily 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 by the person entering the plea.[3]
[1] Meissner v The Queen (1995) 184 CLR 132; Groom v Police (No 2) (2013) 115 SASR 446; Green v Police (1999) 108 A Crim R 246 at [26].
[2] R v Sagiv (1986) 22 A Crim R 73 at 81.
[3] Meissner v The Queen (1995) 184 CLR 132 at 141.
The Court nevertheless has power to permit a defendant to withdraw his or her plea of guilty, both prior to a conviction being entered and also upon an appeal against conviction. The test on an appeal against conviction is whether the circumstances in which the plea was entered involved a miscarriage of justice.[4] The appellant bears the onus of establishing such miscarriage.
[4] Meissner v The Queen (1995) 184 CLR 132 at 141-142, 157.
While a miscarriage of justice remains the ultimate test, there are a number of circumstances which the authorities recognise will be relevant. These include:[5]
· Whether the plea reflects a consciousness of guilt.
· Whether there is a real question as to the guilt of the appellant.
· Whether the plea was based on imprudent or inappropriate advice.
· Whether the defendant lacked an appreciation of the nature of the charges, or the facts alleged against him.
· Whether the plea was the result of a free choice on the part of the defendant, and not the product of his will being overborne by inappropriate pressure or threats.
[5] Meissner v The Queen (1995) 184 CLR 132; R v Pugh (2005) 158 A Crim R 302 at [36]-[41]; R v Stevens [2011] SASC 69 at [14]-[19].
None of these matters is necessarily decisive in a particular case. The law recognises that a person may plead guilty, and be held to that plea, even though it was entered for reasons that extend beyond a person’s belief in their guilt. There is not necessarily a miscarriage of justice in a court acting on a plea which does not reflect a consciousness of guilt, or even in circumstances where the person entering the plea is not in truth guilty of the offence.[6]
[6] R v Pugh (2005) 158 A Crim R 3012 at [37]-[38], [40]; Meissner v The Queen (1995) 184 CLR 132 at 157.
The relevance of the above considerations means that it will be appropriate to inquire into the circumstances in which the impugned plea of guilt was entered, and hence the integrity of that plea. However, it does not follow that a court will readily conclude that a miscarriage has occurred. To the contrary, given the high public interest in the finality of legal proceedings, the courts have generally approached attempts on appeal to set aside a guilty plea with “caution bordering on circumspection”. [7]
[7] R v Liberti (1991) 55 A Crim R 120 at 122.
The appeal
In this case the appellant makes five overlapping complaints in his grounds of appeal. He relies upon their combined effect in support of his ultimate contention that there has been a miscarriage of justice.
1. The Magistrate unduly pressured him to enter guilty pleas when he intended to contest the charges.
2. The guilty pleas were not entered as a matter of free choice.
3. The facts alleged by the appellant were inconsistent with a plea of guilty.
4. The Magistrate failed to advise the appellant to seek legal representation before finalising the matter.
5. The Magistrate failed to advise the appellant in relation to the penalties for the illegal use of a motor vehicle offence, and in particular the risk of a sentence of imprisonment and mandatory 12 months licence disqualification.
Before addressing these grounds directly, I mention that the appellant filed an affidavit on this appeal providing some background and context to the hearing at which he pleaded guilty, and his appeal. I received this affidavit without objection, and there was no application to cross-examine the appellant.
The appellant is 47 years of age and single. In his affidavit, the appellant explained that he has limited literacy skills, and has difficulty in doing paperwork and in understanding legal concepts and language. He has had employment from time to time since completing his schooling, with his most recent work being as a self-employed scrap metal collector. In recent times there has not been much work available for him, although he is continuing to look.
The appellant explained that he attended Court unrepresented because he did not understand the seriousness of the allegations against him, and did not know that he might be eligible for legal aid. He had not received any legal advice in relation to the charges prior to attending Court on 4 April 2016.
The appellant said that he intended to plead not guilty to both charges when he attended Court. Indeed, he thought the charges would be withdrawn because he considered they were inaccurate and based on a misunderstanding, perhaps as a result of his mother developing a mental health problem. He explained that the car in question belonged to his mother and that he had borrowed it with her permission while his car was being worked on by a mechanic. He said that his mother was aware that his car would take a few weeks to fix and denied that there was any condition that he return the car by 8 January 2016. He added that despite his bail conditions at the time, he had at his mother’s invitation been staying with her prior to her lending him the car, and that he had assisted her with her affairs and driven her around in the car because she did not drive. He said that his mother did not use the car unless he drove it for her.
The appellant then addressed in his affidavit what occurred at the hearing on 4 April 2016. He said that he was handed some statements by the prosecutor which he had not previously received or read. He then described the exchange with the Magistrate in which he agreed that he had been on his mother’s property. According to the appellant, the Magistrate then said words to the effect of “well therefore you are guilty of the charges” and “encouraged” him to admit his guilt. The appellant added “I tried to explain that there was more to the story but somehow ended up pleading guilty to the charges. I was scared and confused and do not really understand how this happened.” The appellant later added “I felt pressured to plead guilty in circumstances where it was never my intention to do so and where I did not understand the harsh consequences of doing so.”
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.
In considering the Magistrate’s failure to give the appellant any indication of the potential consequences of his decision to shift from his originally stated position of not guilty, to a plea of guilty, the observations of Wells J in Cooling v Steel[8] are pertinent:
When the [unrepresented] defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. …
Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. …
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed and R v Maitland, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[8] Cooling v Steel (1971) 2 SASR 249 at 250-251.
These observations have been applied, or cited with approval, in a number of more recent cases.[9]
[9] For example, Scott v Police [2015] SASC 103 at [21]-[23]; Svilans v Police [2014] SASC 173 at [15]; Chadha v Police [2012] SASC 181 at [8]; Thomas v Police (2010) 55 MVR 76; [2010] SASC 18 at [12]-[14]; Jaworski v Police (2009) 265 LSJS 254; [2009] SASC 284 at [15]-[17].
In Jaworski v Police,[10] Sulan J emphasised that in cases where penalties may be ordered (in that case forfeiture of property), a defendant should be informed of the serious consequences that may follow upon a plea of guilty, and should be given the opportunity to consider whether to obtain legal representation in the circumstances. In Svilans v Police,[11] Kourakis CJ observed that the obligation of a court to inform an unrepresented defendant of the consequences of a guilty plea in the course of proceedings is well established. His Honour explained that the purpose of giving such a warning is to ensure that an unrepresented defendant has an opportunity to make informed decisions about the course of the proceedings, and in that way to avoid a miscarriage of justice.
[10] Jaworski v Police (2009) 265 LSJS 254; [2009] SASC 284 at [17].
[11] Svilans v Police [2014] SASC 173 at [15].
Other authorities have emphasised the desirability of, if not the need to, inform unrepresented defendants of the potential for a disqualification of their driver’s licence, albeit generally in the slightly different context of ensuring fairness in the sentencing process.[12]
[12] Thomas v Police (2010) 55 MVR 76; [2010] SASC 18 at [12]-[14], and the authorities referred to therein.
While Cooling v Steel provides guidance as to what is expected of a Magistrate, it is difficult to generalise. What is appropriate and necessary must be assessed having regard not only to the practical realities associated with the case load faced by Magistrates, but also the circumstances of the particular case.[13]
[13] Ivanoff v Linnane (1979) 20 SASR 279.
There are some particular features of this case that in my view called for a different, or more cautious, approach by the Magistrate. The defendant was unrepresented. He initially indicated an intention to plead not guilty, at least in respect of the breach of bail offence. Even on the prosecution case, this was an unusual example of the offence of illegal use a motor vehicle, involving a mother permitting her son to use her vehicle, but him then breaching a temporal condition on that use. The defendant, unrepresented as he was, quite reasonably came to the view that this was not a particularly serious matter. The defendant was also unaware of the mandatory licence disqualification that would follow from a finding of guilt in respect of this offence.
In the above combination of circumstances, it would in my view have been appropriate for the Magistrate, when it became apparent that the appellant was considering changing his position to one of guilty, to inform him of the potential consequences of a plea of guilty to the charge of illegal use of a motor vehicle (and in particular the mandatory licence disqualification), and to give him an opportunity to reflect on his proposed course and to seek some legal advice if he wanted to.
In my view, the above circumstances make this case distinguishable from one in which the defendant’s expectation as to the penalty has merely been exceeded.[14] They involved a more general unfairness to the appellant. The significance of this unfairness needs to be considered in light of the additional considerations raised under grounds of appeal 1 and 2.
[14] Green v Police (1999) 108 A Crim R 246 at [19]-[22], [28].
In grounds 1 and 2, the appellant alleges that he was unduly pressured by the Magistrate and that his guilty pleas were not the product of a free choice.
In developing this submission, the appellant’s counsel focused upon the exchange that occurred between the Magistrate and the appellant to the following effect:
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.
The appellant’s counsel contended that the Magistrate in effect told the appellant that he was guilty, and that he did so with the authority and imprimatur that his position as Magistrate carried. He said that this was reflected in the appellant forming the view that he “had to” plead guilty. The appellant’s counsel said that the Magistrate should have made further attempts to ascertain what the appellant’s intended defence was, and that had he done so then this would have resulted in some consideration of the significance of the appellant’s denial that there was any condition upon his use of the motor vehicle. Alternatively, upon it becoming apparent that the appellant had changed his mind and was intending now to plead guilty, the Magistrate should have at that point given the appellant some indication of the potential implications of this change of mind, and urged him to seek legal advice. The appellant’s counsel contended that the net effect of the Magistrate’s conduct was that the appellant was denied an opportunity to explain his version of events, and in particular the absence of any condition on his use of the vehicle, or at least that he was pressured into not raising this.
On reading the transcript of the hearing on 4 April 2016, including the particular exchange set out above, it is apparent that the Magistrate spoke bluntly and directly to the defendant. Often such an approach will be appropriate, if not necessary, in order to get to the substance of individual matters in an efficient way, and to deal with the heavy case load that Magistrates are generally confronted with.
Further, I do not accept that the Magistrate in this particular case went as far as advising or encouraging, let alone telling, the appellant that he was guilty. While the statement by the Magistrate “so count 2 you’re guilty” does not carry a question mark in the transcript, it appears from what follows that it was more in the nature of a question, or at least a seeking of confirmation, rather than a statement (let alone advice or encouragement) from the Magistrate that the appellant was in fact guilty. The fact the appellant responded by saying “correct”, and that the Magistrate followed with a (further) question supports this construction of what transpired.
But that is not to say that the content and tone of what the Magistrate said, both in this passage and more generally, had no influence upon the appellant. It is relevant that the Magistrate’s statements were made with the authority and imprimatur of judicial office. Further, it is apparent (both from a reading of the transcript and from the affidavit of the appellant) that the overall exchange between the Magistrate, prosecutor and appellant did result in the appellant deciding to change his position from an intention to plead not guilty to a plea of guilty. It may be that this was in part a result of some factual difficulties with the appellant’s position being exposed by the prosecutor and the Magistrate. However, I consider there is a risk that it was at least in part a result of the appellant, as he deposes to in his affidavit, feeling unable to explain his position and feeling pressured into entering a plea of guilty.
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.
In so concluding, I do not overlook the ordinary significance of a plea of guilty, given its status as an admission of the elements of the offence in question and the public interest in finality. There is good reason for the courts generally adopting a cautious approach in considering appeals against convictions based upon pleas of guilty. However, as I have said, the combination of circumstances that existed in this case in my view warrant a conclusion that there was a miscarriage of justice.
It is therefore appropriate that I allow the appeal in respect of count 2 (illegal use of a motor vehicle), set aside the conviction and sentence imposed in respect of this count, and remit the matter to the Magistrates Court for further consideration.
17
12
1