Decision
39In my opinion, the most significant question raised in this application is whether, on the facts as found by the primary judge, there was an error of law in his determination that a guilty plea had been entered.
40This question calls for consideration of the effect of ss 192 and 193 of the CP Act , which applied to the proceedings brought against Mrs Collier in the Local Court:
192 Procedures where both parties present
(1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter.
(2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty.
(3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing.
193 Procedure if offence admitted
(1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly.
(2) This section does not apply if the court does not accept the accused person's guilty plea.
41These sections must be read with the definition of "accused person" in s 3 of the CP Act :
accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person.
42Also relevant are provisions dealing with the commencement of summary proceedings. Section 172 of the CP Act provides that proceedings are commenced by the issue of a Court Attendance Notice, and s 177 provides for the service of such notices. Section 175 provides for the form of such notice:
175 Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.
(2) The rules may prescribe one or more forms of court attendance notice.
(3) A court attendance notice must do the following:
(a) describe the offence,
(b) briefly state the particulars of the alleged offence,
(c) contain the name of the prosecutor,
(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,
(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.
(4) The rules may prescribe additional matters to be included in court attendance notices.
(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
43A previous section to somewhat similar effect to s 192 was s 78 of the Justices Act 1902:
78 Defendant to plead
(1) Where the defendant appears at the hearing and has been provided with a written copy of any charges against the defendant, the substance of the information or complaint shall be stated to the defendant, and he or she shall be asked if he or she has any cause to show why he or she should not be convicted or why an order should not be made against the defendant, as the case may be.
(2) If he or she thereupon admits the truth of the information or complaint and shows no sufficient cause why he or she should not be convicted or why an order should not be made against him or her then the Justice or Justices present at the hearing shall convict him or her or make an order against him or her accordingly.
(3) If he or she does not admit the truth of the information or complaint then the said Justice or Justices shall proceed to hear the prosecutor or complainant and the witnesses whom he or she examines and such other evidence as he or she adduces in support of the information or complaint and to hear the defendant and the witnesses whom he or she examines and such other evidence as he or she adduces in his or her defence.
44The effect of that provision was considered in Ex parte Dunn (1904) 21 WN(NSW) 152. In that case, the applicant before the Supreme Court had been charged upon an information with an offence under the Games, Wagers and Betting Houses Act 1902. At the hearing before a magistrate, the applicant was not present but was represented by counsel. The information was not read nor its substance stated in court, but the clerk asked the applicant's counsel "What is the plea?", and counsel replied "not guilty". The magistrate found the offence proved. The applicant sought prohibition, inter alia on the ground that the substance of the charge had not been stated as required by s 78 of the Justices Act . The Full Court dismissed the application. Darley CJ gave the leading judgment, in which he said:
With regard to the second ground it appears that the defendant did not appear in person, but by counsel, as he has a right to do. The defendant not being present in person, his counsel, who was doubtless in possession of the information and summons, was called upon to plead, and he pleaded "Not guilty." It is now complained that the substance of the charge was not stated in Court under s. 78 of the Justices Act. It may be that that section does contemplate cases where a defendant is represented by counsel as well as those in which he is personally present, but it appears to me that if counsel appears, it is his duty, if he has any doubt as to the nature of the charge, to ask that it may be stated, or that the information be read. If instead of doing so he pleads when called upon it seems to me that he waives his right to have the substance of the information stated to him. It would be a mere waste of time. In my opinion, therefore, there is nothing in that point.
45Another case of some relevance is R v Paauwe [1971] 2 NSWLR 235. In that case, the appellant was charged before a magistrate with indictable offences, pleaded guilty to them and was committed for sentence. At Quarter Sessions, without the appellant being formally charged, his counsel stated that he appeared for the appellant and that the appellant adhered to his pleas. The appellant was convicted and sentenced. The Court of Criminal Appeal dismissed the appeal, holding that it was not necessary that the appellant be re-charged before Quarter Sessions. At 238, the court (Manning JA, Lee and Slattery JJ) said this:
It is well settled that where a proceeding for a non-indictable offence is instituted by summons, the accused is not required to appear in person and counsel or solicitor may appear for him and plead guilty or not guilty: Ex parte Hughes; Re Moulden (1946) 47 S.R.(N.S.W.) 91; 63 W.N. 293; R v Thompson [1909] 2 K.B. 614 and Ex parte Dunn (1904) 4 S.R. (N.S.W.) 486; 21 W.N. 152. But where the information results in a charge being laid, it is the invariable practice, when the accused is before the magistrate, that the proceedings should commence with the accused being charged. Once charged, his counsel or attorney in his presence, may answer for him: Justices Act , s. 70(3); R v Salisbury and Amesbury Justices; Ex parte Greatbatch (1954) 2 Q.B. 142, at p.147 per Godard L.J.
46In the present case, if on the facts as found by the primary judge there was never an occasion when the substance of the six charges was stated by the court to Mrs Collier or to a legal practitioner representing her, and if it is the case that in those circumstances there was no plea of guilty that could support her conviction and sentence, then in my opinion there would be an error of law that could justify certiorari.
47The primary judge's acceptance of Mr Collier's evidence as to the circumstances in which he sent the email of 14 July 2009 means that the email could not amount to a plea of guilty by Mrs Collier (even if it could otherwise do so). None of the exchanges in court, prior to 7 April 2010, could amount to a plea of guilty; and in my opinion it is clearly implicit in the primary judge's account of what happened on each of these occasions that there was no occasion when the substance of the charges was stated by the court.
48As regards the hearing on 7 April 2010, the primary judge described that occasion as follows:
11 On that day Mr Madden appeared for her. He is from the Legal Aid office. He told the court he was instructed to enter a plea of guilty. The transcript shows that he then handed up some documents concerning medical problems which Mrs Collier had. [Although I note that in her address to me last week Mrs Collier told me that he had no such documents to hand up, that is what the transcript shows.] Mrs Collier told me that she was there that day and that Mr Madden did appear for her but that he did not do what she had asked him to do. However, the record, that is the transcript, shows there was a discussion about when the pleas had been entered and then there were addresses which were not transcribed and then the Magistrate found her guilty of all matters and imposed penalties for all matters.
49Again, in my opinion it is implicit in that account that the substance of the charge was not stated by the court, at least unless the calling of the matter could be considered as in the circumstances amounting to such a statement. I note that the part of the transcript that was before the primary judge, and is before the Court, suggests that Mr Madden's statement about entering a plea was in response to the calling of the matter, and that nothing was said as to what the charges were; although, unless this was a finding of the primary judge, it may be that any error based on this would not be on the face of the record . Alternatively, it might be said that the failure of the primary judge to address the question as to the stating of the charges would be an error of law on the face of the record. In any event, having regard to my view that this is implied by the judgment itself, it is not necessary to pursue this.
50In my opinion, it can confidently be inferred by this Court, as it could have been by the primary judge and by Magistrate Stevenson, that Mr Madden had been provided with copies of the Court Attendance Notices and the police facts, so that he was well aware of the terms of the charges. In my opinion, in those circumstances, his statement to the court that he was instructed to enter a plea of guilty would unequivocally convey to the court that Mrs Collier did plead guilty to those charges, in a way that was valid and sufficient, at least unless s 192 prevented this. In my opinion, it is clear from the definition of "accused person" in the CP Act , as well as from Dunn and Paauwe , that a plea can be entered by a legal practitioner. If it were the case that Mr Madden acted contrary to his instructions from Mrs Collier or misunderstood those instructions, this would not affect the validity of the plea, but at best support an application to withdraw it.
51Dunn lends support to the proposition that the stating of the charge to the accused person, or at least to a legal practitioner appearing for the accused person, can be waived. Of course, that was a case in which counsel pleaded "not guilty"; but I do not think that this would justify a different result. If the statement of the charge is a condition precedent to the validity of one plea, I think it must be a condition precedent to the validity of the other, and to the validity of consequent proceedings also. The legislation in that case was in somewhat different terms from s 192 of the CP Act ; but again I do not think it is sufficiently different to justify a different result.
52I am not sure, however, whether a procedure required by a statute can simply be "waived". I think the more appropriate enquiry is whether or not s 192(2) of the CP Act is prescribing something that must occur before the power (and perhaps obligation) to convict can be exercised, and/or whether or not it was a purpose of the legislation that an act done in breach of the provision should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [41], [91]-[93].
53It seems clear that the purpose of s 192(2) is to ensure that, to the knowledge of the court, an accused person adequately understands what it is to which he/she is to plead guilty or not guilty, and understands that his/her response will count as such a plea.
54But for the definition of "accused person" in s 3, one would read s 192(2) as requiring that the stating of the offence charged be to the accused person himself/herself; and one might then quite readily consider that this requirement was appropriately selected by the legislature as something that had to happen, in order to ensure, to the knowledge of the court, that the accused person does understand these things. One might then find that the purpose of the provision was to invalidate purported pleas of guilty entered into in the absence of such statements. This appears to have been the position in the United Kingdom under statutory provisions there, which do require the stating of the charge to the accused person himself/herself: R v Wakefield Justices, ex parte Butterworth [1970] 1 All ER 1181.
55However, in my opinion the definition of "accused person" in s 3 makes an important difference. In the light of that definition, the statement in s 192(2) can be made to a legal practitioner, and the legal practitioner may enter the plea. It is clear that in those circumstances what I have identified as the purpose of s 192(2) could be achieved readily and sometimes much more efficiently in other ways; for example, by the court directing the attention of the legal practitioner to an identified document in which the charge or charges are set out. In a busy Local Court list it may be highly inconvenient that multiple charges be individually stated in court; and the identification of charges could more effectively, as well as more conveniently, be done by drawing attention to an identified document. I think this suggests that, consistently with the purpose of s 192(2), it was not the purpose of the legislation to invalidate pleas or convictions if that section was not complied with.
56One indication in the CP Act suggesting that the formality of stating the charges in court may not be a requirement for the validity of a plea is s 182:
182 Written pleas
(1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned.
(2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.
(3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court:
(a) is not required to attend the Court on that date, and
(b) is taken to have attended the Court on that date.
(4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with.
57This means that, in cases where an accused has not been arrested, there may be a written plea of guilty based on no more than the Court Attendance Notice; in which case, the accused would have no more than the Court Attendance Notice, which an accused to whom s 192(2) applies would also have.
58In my opinion, apart from any effect of s 192, for an effective plea of guilty it must be appropriately conveyed to the court that the accused person (personally or by a legal practitioner) understands what is charged against him/her and unequivocally pleads guilty to that charge: that is, unequivocally acknowledges guilt in such a way as to authorise the court to convict him/her of the particular charge and sentence him/her accordingly. This means that, even if non-compliance with s 192 does not of itself invalidate a guilty plea, such non-compliance may result in invalidity, just because in the circumstances of non-compliance there has not been the necessary unequivocal acknowledgment.
59Having regard to all the considerations set out above, and to the authority of Dunn , which this Court should respect, in my opinion the better view is that the stating by the court of the substance of the offence is not of itself a condition precedent to the validity of a plea of guilty, and it was not the purpose of ss 192 and 193 that the power to convict not arise unless there has been such a stating. However, generally in the case of an unrepresented accused, the considerations set out in the previous paragraph would require that, for validity of a plea, s 192(2) be explicitly followed (and, in the case of multiple charges, that separate pleas be taken to each charge). In the case of a represented accused, the legal representative should as a matter of practice at least have attention drawn to the Court Attendance Notice and the offence stated in the Court Attendance Notice: I am inclined to the view that, at least in the case of a represented accused, this would be a substantial if not exact compliance with s 192(2).
60Accordingly, in my opinion the primary judge did not make an error of law in determining that Mrs Collier had pleaded guilty, because non-compliance with s 192 does not of itself invalidate a guilty plea, and Mr Madden's statement that he was instructed to plead guilty, when Mrs Collier's matter had been identified, was a sufficient unequivocal acknowledgment of guilt, referable to charges well understood by Mr Madden and Mrs Collier. The later reference in the transcript of 7 April to an earlier plea was plainly made with a view to giving Mrs Collier the benefit of greater leniency because of an early plea; and it in no way affected the validity of the plea entered by Mr Madden.
61In my opinion no error of law is shown in the primary judge's refusal of leave to withdraw the guilty plea. His reference to concerns about the integrity of the guilty plea as originally entered referred in my opinion to Mr Collier's email and to suggestions that there had been a plea of guilty at the Downing Centre. In relation to the plea as entered on 7 April 2010, the primary judge expressed no such concern. It was well open to the primary judge to find that the transcripts were relevantly accurate, and to find that Mrs Collier's conduct demonstrated an intention to plead guilty. Having regard to Mrs Collier's various statements going to the merits, which suggested no viable defence, it was well open to him not to be satisfied that there would be any miscarriage of justice if he did not allow her to withdraw the pleas.
62In my opinion Mrs Collier's complaints about procedural fairness have no substance whatsoever. The matters referred to by her do not begin to justify any inference of apprehended or actual bias in either Magistrate Stevenson or the primary judge, or to suggest that she was not given a fair opportunity by the primary judge to present her case.
63The circumstances of the matter being transferred to Mudgee, disclosed by the transcript of 4 February 2010, do not begin to suggest any oppressiveness against Mrs Collier; the meeting in the magistrate's chambers cannot support any inference as to actual or apprehended bias; and the comment by Magistrate Stevenson after the submissions of Mr Madden on 7 April 2010 is no more than an innocuous comment based on her reading of the police facts.
64The material does not support a conclusion that Mrs Collier was not given by the primary judge a fair opportunity to present her case; and the primary judge's offer, at the end of his decision, to consider a sentence appeal shows commendable concern for the interests of Mrs Collier and does not begin to suggest a preconceived mindset.