Turner v The State of Western Australia
[2015] WASC 490
•14 DECEMBER 2015
TURNER -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 490
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 490 | |
| Case No: | INS:212/2015 | 14 DECEMBER 2015 | |
| Coram: | HALL J | 14/12/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LUKE ANDREW TURNER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application to change plea Plea of guilty entered in Magistrates Court and accused committed for sentence Application under s 99(5) Criminal Procedure Act 2004 (WA) for court to enter plea of not guilty on behalf of the accused Whether relevant that applicant claims that prosecution evidence is disputed Whether plea of guilty entered under misunderstanding of the charge, the plea or the purpose of the proceedings |
Legislation: | Criminal Procedure Act 2004 (WA), s 99 |
Case References: | Liberti (1991) 55 A Crim R 120 Maxwell v The Queen (1995) 184 CLR 501 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 Webster v The Queen [2013] WASC 73 Wilhelm v The Queen [2013] WASCA 188 Windie v The State of Western Australia [2012] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application to change plea - Plea of guilty entered in Magistrates Court and accused committed for sentence - Application under s 99(5) Criminal Procedure Act 2004 (WA) for court to enter plea of not guilty on behalf of the accused - Whether relevant that applicant claims that prosecution evidence is disputed - Whether plea of guilty entered under misunderstanding of the charge, the plea or the purpose of the proceedings
Legislation:
Criminal Procedure Act 2004 (WA), s 99
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Ms J T Fisher
Respondent : Mr J C Whalley
Solicitors:
Applicant : Justine Fisher Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Liberti (1991) 55 A Crim R 120
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Webster v The Queen [No 2] [2013] WASC 73
Wilhelm v The State of Western Australia [2013] WASCA 188
Windie v The State of Western Australia [2012] WASCA 61
- HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript).
1 This is an application by the accused, Luke Andrew Turner, under s 99(5) of the Criminal Procedure Act 2004 (WA) for the court to enter a plea of not guilty on his behalf, in circumstances where he pleaded guilty in the Stirling Gardens Magistrates Court on 12 August 2015 and was committed to this court for sentence.
Background
2 The applicant is charged on an indictment dated 29 September this year, that on 5 March this year he wilfully and unlawfully destroyed a motor vehicle by fire, contrary to s 444(1)(a) of the Criminal Code (WA).
3 The prosecution case is that on 5 March 2015, the applicant went to a unit in Orelia and argued with his partner, Rebecca Palmer. Ms Palmer's white Toyota Corolla vehicle was parked in a parking bay outside the unit. Sometime that evening, following the argument, the applicant is alleged to have gone outside, smashed windows of the car, and placed a rag in to the neck of the fuel tank. It is alleged that he then set fire to the car. The fire destroyed the vehicle. The applicant was arrested later that night, but he did not participate in an interview.
4 The prosecution brief includes statements from Ms Palmer, and from a neighbour, Mr Brendon McQuilty. Ms Palmer states that, following the argument, she saw the applicant near her car and heard him threaten to blow it up. She ran away and shortly after heard an explosion. She returned to see her car on fire, but did not see the applicant at that time. Mr McQuilty states that he saw the applicant smash the windows of the car with a rock. He then saw the applicant set light to a towel that had been placed in to the fuel tank entry neck. The car was ablaze within seconds.
5 After his arrest the applicant first appeared in the Rockingham Magistrates Court on 6 March 2015 and was remanded in custody. He subsequently appeared a further eight times in the Magistrates Court, the last six of which were in the Stirling Gardens Magistrates Court. On 22 July an application for bail was made, and an order for a home detention suitability report was made. At that time the applicant was represented by an experienced lawyer. For reasons that are not entirely clear, the report was obtained but bail was refused on 5 August. The applicant was still represented by the same lawyer at that time.
The plea in the Magistrates Court
6 On 12 August, the applicant again appeared in the Stirling Gardens Magistrates Court, but this time he was unrepresented. The applicant asked whether bail could be considered. His Honour Magistrate Gething said he could order an updated report and list the matter for a bail application in two weeks.
7 The following exchange then occurred:
The accused: 'I think we're just jacking the system off a little bit there, waiting that long. Look, how about we just deal with it. Are you going to deal with it today? If I plead guilty to it, will you deal with it right this second?'
His Honour, 'Whether or not you plead guilty is a totally different issue to bail. And it probably lessens your chances of getting bail, because I have to look at the prospects – strength of '
The accused: 'Yes, but if I plead guilty to it, will you deal with it now?'
His Honour: In terms of a bail application, if you make the bail application I will deal with it.'
The accused: 'No, not the bail. Not the'
His Honour: 'But'
The accused: 'Sorry. Sorry, your Honour. Not the bail application. Will you deal with sentencing now?'
His Honour: 'I can’t deal with sentencing because you will have to go to a Supreme Court judge. What I can tell you is that if you plead guilty today I can get you in before – my earliest date is 2 October. So I can get you in – sentenced by a judge on 2 October.'
The accused: 'Yes. Right. Let’s just do that.'
His Honour: 'Okay. So'
The accused: 'Yes. That's good.'
His Honour: You would like to plead guilty to the two charges and through to a sentencing hearing?'
The accused: 'That’s correct.'
His Honour: 'Okay.'
The accused: Would that – would – that would be criminal damage by fire and possession of meth. Yes?'
His Honour: 'Yes.'
The accused: 'Yes' (ts 3).
8 The charge was then read to the accused and he pleaded guilty. There is a second charge that has not been committed to this court, dealing with possession of drugs, which remains, I understand, in the Magistrates Court. The magistrate then ordered a pre-sentence report. The applicant said he would not cooperate with the report writer. The following exchange then occurred:
The accused: 'Look, at the end of the day I didn't do this, but Rebecca said I did. So I'm just going guilty. So it doesn't matter about pre-sentence reports or nothing. If she said I did, I did it. So'
His Honour: 'Well, that places me in a tricky situation, Mr Turner, because I can't accept a plea if you're telling me you didn't do it.'
The accused: 'Well, I did do it. So guilty.'
His Honour: 'Okay. So you're – that's the basis on which I’m going to take you forward. That your plea in relation – that your plea in relation to this one is guilty. Are you 100 per cent happy with that?'
The accused: 'That's 110 per cent. Yes' (ts 6).
Proceedings on 2 October 2015
9 When the applicant appeared in this court on 2 October 2015, he was again unrepresented. Martino J urged him to get a lawyer. The applicant said he did not want a lawyer and that he just wanted the matter dealt with. He said he had had the prosecution brief for a couple of months. When shown the indictment he confirmed that the charge was as he expected it to be. He referred to the time he had spent in custody and his desire to give his family a release date. He said, 'I've done the crime.'
10 Martino J questioned the applicant as to his understanding of the charge. Whilst he did not appreciate that wilful and unlawful damage by fire was the same thing as arson, he said that he understood that the charge was that he 'lit the car on fire.' He referred to there being another side to the story and to documents that he wanted to provide to the court. He did hand those documents to the court and they were relevant to remorse and efforts at rehabilitation. They included a long handwritten letter which was signed by the applicant and in which he confirmed his guilt. In particular, on the last page of that letter he states:
I am guilty. I am so very sorry and ashamed of my actions that night. I never intended to damage anything, or be confrontational with Bec or the police attending that night, but in my altered state of mind, after receiving and absorbing the facts of that day, I imploded.
11 In submissions on this application it is said that this letter was written for the applicant by a friend and that he did not read it. That, however, does not accord with the applicant having urged Martino J to read the letter. There was nothing to suggest that the applicant was not aware of the contents. Indeed, to the contrary.
12 Martino J was concerned that the applicant was unrepresented and whether he understood the seriousness of the charge. As the indictment was dated 29 September, his Honour was also concerned that the applicant had not had sufficient time to consider his position, bearing in mind r 16(1) of the Criminal Procedure Rules 2000 (WA). Accordingly, he adjourned the matter until 27 October. On that date the applicant was represented by Ms Fisher, who also appears for him today. She advised the court that she had received instructions to apply for a change of plea, and that she expected to receive a grant of legal aid for that purpose shortly. Martino J made programming orders requiring that the application, and the supporting affidavit, be filed by 17 November. The matter was later set down for a hearing today.
Evidence on this application
13 The applicant has sworn an affidavit dated 17 November 2015, in which he states:
6. I advised his Honour Magistrate Gething that I wanted to plead guilty to the charge. I did so in light of my bail having been refused on 5 August 2015. Although I did not commit the offence, I mistakenly thought that I would spend less time in custody if I pleaded guilty to the charge. As my bail had been refused, I did not want to wait for a trial date to be listed.
7. I did not understand the consequences of my plea of guilty and the seriousness of the charge of criminal damage by fire. I have since received detailed legal advice concerning the consequences of the plea of guilty, and the likely outcome.
14 He goes on in that affidavit to dispute the contents of Ms Palmer and Mr McQuilty's statements. I will return to that issue shortly.
15 The prosecution has filed affidavits from a police officer and a paralegal, which annex recordings and details regarding telephone calls made by the applicant from prison. Amongst the calls are two made on 12 August, in which the applicant tells Ms Palmer and her mother that he is pleading guilty to the charge because he does not want to wait until March for a trial.
16 I have also received the following further evidence on this application:
(1) the letter that was written by the applicant and handed to Martino J on 2 October;
(2) the prosecution brief, including the statement of material facts;
(3) the committal report;
(4) the applicant's WA and New South Wales criminal records; and
(5) the transcripts of the hearings in the Stirling Gardens Magistrates Court on 12 August, and in this court on 2 October and 27 October.
Relevant law
17 Section 99 of the Criminal Procedure Act provides for circumstances such as this, where an applicant has entered a plea of guilty in the Magistrates Court, been committed for sentence, and then seeks that the superior court enter a plea of not guilty on his behalf:
Unconvicted accused committed for sentence, procedure on
(1) This section applies if -
(a) an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b) the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c) the accused is subsequently charged with the charge in an indictment.
(2) The accused must be required to plead to the charge in the indictment in the same manner as other accused.
(3) If the accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.
(4) If the accused does not plead guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must order the prosecutor to state aloud the material facts of the charge and -
(a) if it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under section 35 at the time the accused pleaded guilty to the offence charged in the lower court, must enter a plea of guilty on behalf of the accused; or
(b) if it is not so satisfied, must enter a plea of not guilty on behalf of the accused,
and deal with the accused according to law.
(5) Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(a) having considered -
(i) the material served on the accused under section 35 or 95; and
(ii) the facts stated by the prosecutor under section 129,
the court is satisfied that the accused could not have or may not have committed the offence charged; or
(b) having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
(6) If under this section a superior court enters a plea of not guilty on behalf of an accused, the prosecutor must lodge and serve the material referred to in section 95(6) within such period as the court orders.
(7) A plea entered by a court under this section on behalf of an accused has the same effect as if it had been actually pleaded.
18 The courts approach attempts to change a plea with caution bordering on circumspection: Liberti (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence: Webster v The Queen [No 2] [2013] WASC 73 [28].
19 What is required for a plea to be valid is that it is based on an understanding of what is alleged in the charge and an acceptance of responsibility. The plea must be clear and unequivocal - not accompanied by any reservation or dispute as to any essential element of the charge: Webster [30], and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510 - 511.
20 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. 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 [1995] HCA 41; (1995) 184 CLR 132 [157] (Dawson J) and Wilhelm v The State of Western Australia [2013] WASCA 188, [51] (Mazza JA).
21 In Windie v The State of Western Australia [2012] WASCA 61, the appellant also pleaded guilty in the Magistrates Court and then subsequently sought to change his plea in the District Court. The appellant in that case said that he entered his guilty plea after being refused bail and because he wanted to get the matter over with. He said that he was angry at the time and did not understand the seriousness of the charge. He said that he was hoping for a fine and to be released from custody. His application was refused in the District Court and his appeal against that decision was dismissed.
The application
22 The present application is made pursuant to s 99(5). In that regard, the applicant relies on both limbs of that subsection, that is s 99(5)(a) and s 99(5)(b).
23 Sub-section 99(5)(a) provides that the court may enter a plea of not guilty on behalf of an accused if, having considered the material served by the prosecution pursuant to s 35 and s 95, and any facts stated by the prosecutor under s 129, the court is satisfied that the accused could not have, or may not have, committed the offence charged. It is submitted on behalf of the applicant that the matters that are referred to in that subsection are not exclusive and that I can, and should, take in to account the matters raised by the applicant in his affidavit of 17 November. In particular, that he claims not to have committed the offence and that he disputes the statements of Ms Palmer and Mr McQuilty.
24 Sub-section 99(5)(a) requires the court to take into account the materials specified in that subsection. The objective is to determine whether there is any deficiency in the prosecution case. The suggestion that the applicant's affidavit can also be taken in to account assumes that what the section is designed to do is to ensure that a person is not convicted if he or she has an arguable defence. That appears to be contrary to the underlying purpose of that section, and indeed to the broader general principles that apply to changes of plea. The existence of a possible defence has long been considered to be irrelevant as to whether a plea of guilty has been properly entered. A plea of guilty is taken to be an acceptance, not only of the elements of the offence, but that no defence that could be raised is relied on. It would be very easy to change a plea of guilty if all that an applicant had to do was to subsequently claim that he or she had an arguable defence or disputed the prosecution evidence.
25 I accept that the court has a residual discretion to ensure that there is no miscarriage of justice. Accordingly, I could take in to account the contents of the applicant's affidavit in regard to whether he has any defence to the charge, if that was relevant. However, for the reasons that I have given, the fact that the applicant now says that he disputes the statements of prosecution witnesses does not establish that there would be a miscarriage of justice if the plea of guilty was not changed. Furthermore, there is no deficiency apparent in the prosecution brief such as would support a conclusion that the applicant could not have, or may not have, committed the offence. Indeed, the prosecution case appears to be a strong one at face value. In my view, the test in s 99(5)(a) is not met in the circumstances of this case.
26 In regard to the second limb, in order to satisfy s 99(5)(b) the court must be satisfied that the applicant entered his plea of guilty on 12 August under a:
(1) material misunderstanding as to the charge;
(2) material misunderstanding as to the plea; or
(3) material misunderstanding as to the purpose of the proceedings.
27 The fact that the applicant was unrepresented at the time the plea was entered is a relevant consideration. But that fact has to be considered in the context of the history of the proceedings. A person charged with an indictable offence is dealt with under pt 3, div 4, of the Criminal Procedure Act. As soon as practicable after a person's first appearance in the Magistrates Court on such a charge, the court is required to ensure that the person has received a copy of the charge, has had time to consider and receive legal advice about it, and that the person understands the charge and the purpose of the proceedings: s 39. Once the prosecution has served the person with the initial disclosure documents (which includes a statement of material facts: s 35) the Magistrates Court must tell the person that he or she is not required to plead to the charge, but may do so, and must be given an opportunity to do so: s 41. If a person pleads guilty the Magistrates Court must commit the person for sentence to the superior court with the jurisdiction to hear the charge. Because the maximum penalty for an offence of this nature is life imprisonment, the appropriate court is this court.
28 Section 129, which requires that a court be satisfied that an unrepresented person understands the charge at the time of entering a plea does not apply to the Magistrates Court when dealing with an indictable charge which is proceeding to a superior court. That is because of the terms of pt 3, div 4, which require the court to ensure that such an understanding exists at an earlier stage of the proceedings.
29 The onus is on the applicant to establish one of the three relevant types of misunderstanding. See Windie [19].
Findings
30 As to the applicant's understanding of the charge, the evidence is that he had the prosecution brief prior to pleading and appreciated that the charge was one of wilful and unlawful damage by fire. Whilst unrepresented on 12 August, he had previously had the benefit of legal counsel. There is no evidence to suggest that the procedure referred to in pt 3, div 4 of the Criminal Procedure Act was not complied with. Furthermore, the applicant's exchanges with Martino J on 2 October display an understanding of the nature and elements of the charge.
31 The applicant also clearly understood the seriousness of the charge, albeit that he hoped to receive a sentence of about 18 months' imprisonment. However, he expected to receive a sentence of imprisonment, and was seeking the certainty of a release date.
32 As to the applicant's understanding of his plea, there was nothing equivocal about his plea on 12 August. It was a deliberate decision, consciously made. It was not done inadvertently or lightly, as his calls the same day to Ms Palmer and her mother show. Nor was it something he regretted or sought to withdraw on 2 October. Indeed, on that day he remained insistent that he wanted to maintain his plea of guilty. He tendered a signed letter in which he confirmed his guilt.
33 As to the applicant's understanding of the proceedings, he had by 12 August appeared several times in the Magistrates Court on this charge. He sought the opportunity to plead guilty. It was not forced upon him. He clearly understood what was occurring and what would happen as a result. Magistrate Gething explained that to him in simple, easily understood, terms. Furthermore, the applicant is no stranger to the criminal justice system. He has an extensive record which must have involved many appearances in the courts. He is not a person who is ignorant of the meaning and significance of a plea of guilty.
34 The applicant's argument, at best, is that he did not fully appreciate the seriousness of the offence and the likely penalty he might receive. That might be doubted given that he seemed to expect a prison sentence and told Martino J that he had heard that the maximum penalty was life imprisonment. In any event, a misapprehension about the maximum or likely penalty is not a material misunderstanding as to the charge, the plea, or the purpose of the proceedings: See Windie [29].
Conclusion
35 I am not satisfied that, having considered the material relevant to s 99(5)(a), the applicant could not have or may not have committed the offence charged.
36 Further, I am not satisfied that the plea in the Magistrates Court on 12 August was made under a material misunderstanding as to the charge, the plea, or the purpose of the proceedings.
37 To refuse this application will not result in a miscarriage of justice. The application must, therefore, be dismissed.
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