Criminal Law - Appeal and new trial - Appeal against conviction recorded on guilty plea - Particular cases - Plea must be unequivocal - Assertions inconsistent with guilt made during sentencing hearing.

Marlow v R [1990] TASSC 7; [1990] Tas R 1; Maxwell v R (1996) 184 CLR 501 at 511, followed.

Judgment Number: [2010] TASSC 47

1 The applicant, having pleaded guilty to two charges of breaching family violence orders, was convicted and sentenced to a wholly suspended term of two months' imprisonment. He has filed a notice to review this outcome on the ground that the learned magistrate erred in accepting his plea of guilty to one of the charges as he, by his counsel, had made assertions that were inconsistent with his guilt of the assault which was the subject of that charge.

2 The following is the background to the charges. On 26 May 2008, a family violence order was made against the applicant that included an order that he not enter premises where the complainant, Carol Beechey, was residing. The complainant was his wife and the mother of his four children.

3 On 26 September 2008, when returning children to the complainant's residence, the applicant entered the residence and placed some of the children's belongings inside. With respect to this incident, a complaint (the first complaint) was issued against the applicant charging him with breaching the family violence order by entering the premises.

4 On 12 December 2008, the family violence order against the applicant was replaced by an order in much the same terms as that of 26 May 2008, it included an order that the applicant not directly or indirectly threaten, harass, abuse or assault the complainant.

5 Prior to Christmas 2008, the applicant and the complainant jointly purchased an LCD TV as a Christmas present for some or all of their children. It was arranged that the applicant and the complainant, together with others, would attend the home of the complainant's parents to open presents on Christmas day. The applicant and the complainant attended on that day and after the opening of presents, one of their children wanted to take the LCD TV with her as she left with the applicant. The complainant was not happy about this. The applicant picked up the box containing the LCD TV and, as he carried it from the house, the box came into contact with the complainant who fell and dislocated a shoulder.

6 In respect of the above incident the applicant was charged with assault and breaching the family violence order. The charges as detailed in the complaint (the second complaint) were:

"CHARGE: Common assault.

BREACH OF: Section 35(1) Police Offences Act, 1935.

PARTICULARS: You are charged with on the 25th December, 2008 at Cygnet in Tasmania, unlawfully assaulting Carol Maree BEECHEY by pushing her forcefully with a large box causing her to fall to the ground.

AND FURTHER: 2 -

CHARGE: Breach of Family Violence Order

BREACH OF: Section 35(1) of the Family Violence Act, 2004

PARTICULARS: On the 12th December, 2008 in the Court of Petty Sessions held at Hobart on complaint number 150188/08 an order was made for a Family Violence Order upon the hearing of an application pursuant to Section 15 of this Act, which included in that order the following;

not directly or indirectly threaten, harass, abuse or assault Carol Maree BEECHEY;

Such order having effect as of the 12th December, 2008 and in force on the 25th December, 2008 you are now charged that on the 25th December, 2008 at Cygnet in Tasmania you contravened the said order, in that you assaulted Carol Maree BEECHEY by pushing her forcefully with a large box causing her to fall to the ground."

7 Following a series of adjourned hearings before the court of petty sessions the applicant pleaded to the second complaint before Magistrate C P Webster on 5 November 2009. Before the applicant's plea was taken, the charge of breaching the family violence order was amended by deleting the word "forcefully" from the particulars. The applicant pleaded guilty to that amended charge and not guilty to the charge of assault. The prosecution tendered no evidence on the charge of assault and it was dismissed. No doubt the prosecutor took this course in relation to the assault charge as, consistent with the principles enunciated in Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249 and Strachan v Brown [2000] TASSC 142; (2000) 9 Tas R 291, a charge should be dismissed if its elements are wholly included within another charge for which the offender is convicted. All the elements of the assault charge were included within the second charge of breaching a family violence order. On 19 July 2010, the applicant pleaded guilty, before the same magistrate, to the earlier charge of breaching a family violence order contained in the first complaint.

8 The learned magistrate heard submissions with respect to the sentencing of the applicant on each of these charges on 6 August 2010. In the course of the submissions of the applicant's counsel, Ms Siejka, the following exchange took place:

"HIS HONOUR: So your client's pleaded guilty to the assault so he obviously -

MS SIEJKA: Well, your Honour, it's not an assault it's a breach of the Family Violence Order, two counts of breach.

HIS HONOUR: Well, yes, but it was an assault wasn't it.

MS SIEJKA: Furthermore -

HIS HONOUR: It was a breach by an assault.

MS SIEJKA: Well in relation to Christmas Day.

HIS HONOUR: Yes.

MS SIEJKA: Now my instructions in relation to that -

HIS HONOUR: That's really the only one I'm worried about.

MS SIEJKA: - in relation to that matter that there was an arrangement, as I say the facts state that, that there was an arrangement that he attend the complainant's family home on Christmas Day. Now that was in breach of the order in itself although both parties came to that arrangement at Positive Solutions and had that agreement. Now in relation to this assault issue it's my client's instructions that this was a childish argument between the parties resulting in him wishing to remove the TV which was a mutual gift for the child and it was simply inadvertent of moving the TV out the door that the complainant's been injured and it's unfortunate. Clearly the client has regret that that's what resulted in a caring - however there was no intention on his part, and that's not alleged in the facts, that he intended this injury or action to occur, it was simply inadvertent."

9 The sole basis for the second charge of breaching a family violence order, which was the subject of the above exchange, was the allegation that the applicant had assaulted the complainant by pushing her with the box. The mental element that must be established in order to convict an offender of assault by the application of force is either that the offender intentionally applied force to the complainant, or that the offender foresaw the likelihood that he or she might do so and proceeded regardless of that consequence; Wilkinson v R 43/1985, Nettlefold J, at 4, and Vallance v R [1961] HCA 42; (1961) 108 CLR 56. Adopting and adapting the words of Neasey J, agreed with by Underwood and Crawford JJ, as they then were, in R v Bennett [1990] Tas R 72, at 81, what the prosecution must prove is actual intent to apply force or subjective recklessness. Negligence, falling short of recklessness, is insufficient; Vallance (supra), Kitto J at 64.

10 From what Ms Siejka said to the learned magistrate, it was clear that the applicant denied intending to apply force to the complainant, and it was unclear whether her categorisation of the applicant's conduct as "simply inadvertent" meant no more than that he had failed to pay attention or had been negligent, or whether her categorisation could be elevated to an acknowledgment that the applicant had been reckless. Unless it was the latter, the applicant was not guilty. Although the applicant's mental state was crucial to the question of his guilt, and of importance in relation to his moral culpability for sentencing purposes, the learned magistrate either did not appreciate, or ignored the uncertainty created by Ms Siejka's categorisation of the applicant's conduct as "simply inadvertent". This uncertainty was not revisited in the course of the sentencing hearing and his Honour sentenced the applicant without mentioning that the assault that was the basis for the second charge was inadvertent, or otherwise addressing the applicant's mental state at that time.

11 When it became clear in the course of the sentencing hearing that, on one view, Ms Siejka was asserting that in relation to the second charge the applicant had a mental state that was inconsistent with his plea of guilty, the proper course for the learned magistrate to have taken was to inform Ms Siejka of the inconsistency. A plea of guilty must be unequivocal, Maxwell v R (1996) 184 CLR 501 at 511. Having pointed out the inconsistency, his Honour should have invited Ms Siejka to apply to change the applicant's plea to the second charge, or confirm either that he had intended to apply the force that was the subject of the charge or had done so recklessly, see Marlow v R [1990] TASSC 7; [1990] Tas R 1, Crawford J, as he then was, at 4, agreed with by Green CJ and Underwood J, as he then was. In failing to identify and resolve this uncertainty the learned magistrate erred.

12 Subject to hearing from the parties about the consequential orders I should make, I will allow the appeal, quash the applicant's conviction and sentence and order that the complaints be reheard.