Wayne Robert Korber and Ruth Marian McAvaney v Daniel Peter Bailey No. SCGRG 94/567 Judgment No. 4602 Number of Pages 7 Criminal Law and Procedure

[1994] SASC 4602

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - suspended sentences - revocation of - Crown appeal against failure to revoke suspended sentences on application to enforce breached bonds - appellant failed to perform community service required by bonds - observations as to the proper grounds for excusing a breach of a bond supporting a suspended sentence - circumstances warranted refusal to revoke the suspensions, but appellant should be required to complete the community service he originally undertook to perform - the mere estreatment of one of the bonds by the magistrate not adequate - appeal allowed - as that bond expired appellant to enter a further bond requiring him to perform the community service originally undertook to perform. Criminal Law (Sentencing)Act, 1988ss 58, 38. SA Police v Bowden (Olsson J, l0 May 1994, unreported, available on SCALE); The Queen v Walker (1981) 27 SASR 315 and Ienco v Kraft
(1990) 155 LSJS 332, applied.

HRNG ADELAIDE, 18 May 1994 #DATE 10:6:1994

Counsel for appellants:     Ms M Clements

Solicitors for appellants:    Crown solicitor

Counsel for respondent:     Mr S C Ey

Solicitors for respondent:    Mangan Ey and Associates Pty Ltd

ORDER
Appeal allowed.

JUDGE1 OLSSON J These proceedings seek the setting aside of convictions recorded in the Magistrates Court, consequent upon pleas of guilty originally entered by the applicant; and the remission of the relevant complaint for a trial upon the merits before a stipendiary magistrate.

2. If he is to obtain the relief sought the applicant must surmount two successive obstacles.

3. First, his notice of appeal is long out of time; and he requires an extension of time within which to prosecute it. Second, if that extension is granted, he must establish a proper basis upon which his convictions and the penalty and licence disqualification flowing from them may properly be set aside.

4. The relevant facts and circumstances giving rise to these proceedings may be summarized as under:- During the evening of 14 June 1992 police attended at house premises at Happy Valley, in relation to a domestic dispute. They there found the present applicant in course of an altercation with his de facto wife. On appearance, he seemed to be moderately affected by alcohol. His eyes were said to have been red and watery and his face was flushed. Police officers who attended claim to have detected a strong smell of liquor about his person. He asserted to them, on their arrival, that his de facto wife had kicked him in the testicles whilst he was attempting to remove some of his personal effects from the premises and leave.

5. A clear dispute exists as to what transpired after the arrival of the police.

6. On the applicant's version a police officer went into the premises, brought out a bag containing the applicant's clothing and told him that the best thing that he could do was to leave. According to the applicant, he told a police officer that he was contemplating taking his car from the premises, but that he was not certain that he should drive, because he had been drinking. He requested a breath test to check his condition, so as to ensure that he would not be committing an offence by driving. The police officer declined, saying that this could only be done if he had committed an offence. The request and refusal, it is said, occurred several times, following which the police officer checked his licence and registration, went back inside the house, got the car keys, gave them to the applicant and told him to go. He says that he complied, and that the police followed him in the patrol car. Shortly afterwards they pulled him over, alleged that he had failed to indicate a turn (when that was not, he said, the case) and submitted him to an indicative breath test. That produced a positive result. A breath analysis was later conducted and produced a result of 0.141%. A blood test was later taken, which, presumably, confirmed that reading.

7. By way of contrast it is alleged by the respondent that a police officer had cautioned the applicant against driving, because of his apparent state of intoxication. It is said that, upon his doing so, the applicant argued with him and demanded an alcotest to prove that he was under the limit. The officer contends that he declined that request as being contrary to police policy and again cautioned him against driving. After renewed demands for an alcotest (which were also refused) and renewed warnings that he was clearly over the limit and ought not to drive, the police officers returned to their vehicle and observed the applicant drive away in his vehicle. They followed. When he failed to indicate (a factual situation which the applicant denies) the police pulled the applicant over and administered the alcotest and the subsequent breath analysis.

8. In his draft affidavit, which was placed before me by consent, the relevant police officer does not now recall having obtained and given the car keys to the applicant, although he concedes that it is possible that he may have done so.

9. What is, of course, disturbing about the police version of events is that knowing, as they obviously did, that it was probable that the applicant was appreciably affected by alcohol, they not only refused to permit his condition to be checked (which, had they done so, would almost certainly resulted in him not driving at all) but also: - probably did obtain and give him the car keys, realizing that he intended to drive; and then - passively allowed him to drive his vehicle and simply awaited an excuse to make him submit to a breath test so as to found a basis of charging him. Prima facie, if that be the true situation (and there seems to have been substantial ground for contending that 4 it was), they virtually instigated the commission of the offence which was committed.

10. On 13 August 1992 the applicant was charged with an offence against sections 47a and 47b of the Road Traffic Act, 1961 ("the Act") and failing to indicate, contrary to section 74 of the Act. He says that he then consulted a solicitor (Mr Stephen Mathwin) and sought advice from him.

11. The applicant says that he was told by Mathwin that, if he pleaded not guilty, significant costs would be incurred. When asked what were his chances of acquittal, Mathwin is said to have told the applicant "The bottom line is that you drove a motor vehicle with that alcohol in your system" and that "You have about a 30% chance or a slim chance". The applicant says that it was never made clear to him what the nature of any defence would be and that he did not ever appreciate that, if his version of events was substantially accepted, the evidence of the blood alcohol concentration might be excluded, by virtue of the conduct of the police officers - quite apart from the disputed issue as to whether he had committed the offence of failing to indicate, relied on by the police as justifying the requirement to "blow". That was, he says, first explained to him when he recently saw his present solicitor.

12. On the applicant's narrative, having been told of the "slim chance" and the potential cost he concluded that he had no practical choice other than to plead guilty. He accordingly entered pleas of guilty to both counts on 5 November 1992, when a young female solicitor (apparently instructed by Mathwin) appeared and made submissions in mitigation on his behalf. He was fined $600 plus court fees and costs and was disqualified from holding or obtaining a driver's licence for 8 calendar months.

13. It appears that, during the period of disqualification, the applicant was detected by police driving a motor vehicle whilst under disqualification. He was then charged with that offence.

14. It is the applicant's assertion that, upon consulting his present solicitor in relation to the lastmentioned prosecution, he was first advised that, if his version of the factual circumstances related to the PCA offence had been put forward and substantially accepted, then, in all likelihood, the evidence of breath analysis would have been rejected and he would have been acquitted. Against that background the present notice of appeal and application for extension of time was lodged on 18 February 1994.

15. Mr Kourakis, of counsel for the applicant, argued that these proceedings were not simply opportunistic and an attempt to avoid the consequences of the drive whilst disqualified offence. Indeed, he said, it was arguable that such offence may still have been committed, even if the present application and the desired appeal are successful and the ultimate result of a trial is in the applicant's favour. They were, he said, very much the direct product of proper advice only recently having been tendered to and understood by the applicant, given a careful consideration, by the applicant's present legal advisor, of all of the circumstances.

16. In my view the application for extension of time is so inextricably linked to the basis of proposed appeal that the two issues may conveniently be considered together.

17. Various expressions have, over time, been employed in the published authorities bearing on the proper basis of approach to appeals seeking to set aside convictions resulting from a plea of guilty.

18. At one stage it was suggested that the circumstances in which a court will allow an appeal against a conviction arising from a guilty plea must be exceptional (Bull v Deed (1968) 16 SASR 236, Gower v Ross (1959) SASR 278). However, I agree with Mr Kourakis that, in more recent times, a less stringent test has been applied.

19. Certainly an appeal following such a plea is not to be upheld for the asking. It will only be allowed in cases in which the justice of the case clearly indicates the propriety of so doing. As was indicated by White J in Attorney-General v Kitchen and Roberts (1989) 51 SASR 54, a balancing of policy considerations is necessarily involved. On the one hand the paramount consideration must always be the interests of justice. However, on the other, care must be exercised to guard against manipulation of the court system, forum shopping and other abuses of process. A plea of guilty in open court is, after all, a solemn acknowledgment of guilt. Clearly a proposed appellant must make out a compelling case for relief after a plea has been entered and penalty imposed, especially when that occurs following (and upon) the advice of a competent and experienced legal practitioner.

20. A perusal of the authorities suggests that, in general, where a plea has been entered after advice, a defendant will not be allowed to retract that plea unless two broad conditions are satisfied, namely:- (1) That it is shown that the plea was the product of a material mistake, a lack of understanding by the defendant of his legal rights, or an improper threat or inducement of some type; and, equally importantly, (2) That it is made to appear that, if the plea had not been entered, there would have been a substantial issue to have been tried which could, on the face of it, have had the potential to significantly affect the outcome. In the instant case there is no doubt that, on the applicant's own story he not only received legal advice, but also understood the nature of the charges and the fact that his plea admitted his guilt of them. As to this the comments made by Herring CJ and Adam J in their joint judgment in R v Murphy (1965) VR 187 at 189 would appear apposite, in so far as they are applicable to the present circumstances:-
    "It is not suggested by this ground that the applicant
    was not perfectly well aware that by pleading guilty she
    was admitting and intending to admit her guilt of the
    offences charged. All that can be said is that the
    advice given to her by her counsel was unduly
    pessimistic as to the consequences of her standing her
    trial, and unduly optimistic regarding the sentence upon
    her pleading guilty. These may provide the motives for
    the course she took, but that is all. Although in this
    ground she alleges that she was unduly influenced by her
    counsel, it is made clear enough from the evidence which
    we heard from her counsel and indeed from herself, that
    the decision to plead guilty was her own decision, taken
    after consultation, it seems, with her husband. The
    strength of the advice given would appear to be a matter
    between the applicant and her chosen legal
    representative, and in the absence perhaps of fraud,
    duress or the like, which is not suggested, cannot, we
    think, on any recognized principle afford ground for
    relief in this Court. After all, it is the duty of
    counsel to advise his clients of the course which he
    honestly believes in the exercise of his judgment to
    be in their own interests in all the circumstances, and
    it is for his clients to accept or reject that advice
    and, if thought fit, change their counsel. Furthermore,
    there would appear to be the strongest reasons based on
    policy for refusing to allow an appeal from a conviction
    based on a plea of guilty merely because the sentence of
    the Court has turned out to be more severe than an
    accused was led to expect. The proposition that an
    accused, after being awarded an unexpected and unwelcome
    sentence following upon his plea of guilty, may then on
    appeal be given the opportunity of a trial by jury on a
    plea of not guilty with the chance of an acquittal or
    perhaps a lighter sentence if found guilty, needs only
    to be stated to be denied. And this, it would seem, is
    in substance the proposition advanced by this ground of
    appeal."

21. In the instant case it is clear that, as I have pointed out, legal advice was sought and given by an experienced legal practitioner and a decision made by the applicant in light of that advice.

22. The more recent advice has clearly been somewhat more optimistic than that originally tendered by Mr Mathwin. It may well be that the applicant may not have realised, at the time, what was the precise legal foundation of any defence which might have been argued, had he originally pleaded not guilty. Certainly, the detailed police version of what transpired would not have been known to Mr Mathwin. However, the applicant did elect to plead guilty, even to the extent of admitting the factual incident of failing to indicate, which he now says was an offence which he did not commit - an aspect which is (and was) as fundamental to a possible defence as what was asserted to be the inappropriate conduct of the police officers in virtually conniving at (if not directing) him to drive when he did.

23. Given that Mr Kourakis earnestly urges that this is not a mere opportunistic appeal, there is a need carefully to scrutinize the applicant's motives, by virtue of the fact that the event precipitating the application and desired appeal was a prosecution for the later offence of driving whilst disqualified, in breach of the order made on the original convictions. The present situation is, of course, a far cry from that under consideration in Attorney-General v Roberts (supra), where the defendant sought to withdraw his plea prior to actually being sentenced, having been given different advice by another legal practitioner.

24. It follows that the applicant cannot realistically plead mistake, misunderstanding, or improper conduct conducing; and there has now been a very great delay between time of conviction and time of attempted appeal. This matter would not be before the court had it not been for the further alleged unlawful conduct of the applicant.

25. On the application for an extension of time the applicant must both give a plausible reason for the delay and also demonstrate the clear merit of the appeal. (Sadler v Crossman (1988) 142 LSJS 337 at 341.)

26. Because of the lapse of time which has occurred this application must be considered as borderline. However, at the end of the day, it seems to me that, perhaps due to incomplete information, the applicant was badly advised - in the sense that he was not made fully to understand the possible lines of defence available and their consequences. Indeed, on the face of the material before me I am left wondering whether the full implications of even the admitted conduct of the police officers in question was accorded due significance when the original advice was tendered.

27. Be that as it may, the decisive aspect of this matter is that, taken at best from the prosecution viewpoint, there appears to be not insubstantial ground for arguing that the police conduct, on the night, was inappropriate, if not improper. The police suggestion that the applicant was told not to drive does not sit well with the suggestion (and at least the strong possibility) that they both procured the key and also gave it to him, having refused him an alcotest to check his condition. The logical, prima facie, inference is that they were content to allow him to commit a PCA offence and then simply looked for an excuse to require him to blow. At worst, if the applicant's evidence is accepted in substance, the police conduct was deserving of the strongest censure. On either basis it appears to me that the facts give rise to a clear need to consider a possible application of the Bunning v Cross principle.

28. I am therefore driven to the view that the justice of the case demands that the applicant be permitted to have his day in court, even at this late stage.

29. There will be an order that the time within which to appeal be extended to 18 February 1994, to the intent that the notice of appeal herein be deemed validly filed and served within time. The appeal will be allowed, the convictions recorded quashed and the penalty and disqualification set aside. The complaint will be remitted for rehearing by a stipendiary magistrate.