Gee v Hulbert & Ors [2002] ACTSC 118

1. This is an appeal from four matters decided on 16 April 2002 by Magistrate Somes in the ACT Magistrates Court.

2. On that date, convictions were recorded and penalties imposed in respect of the following matters (I omit references to court costs and levies):

* (CC 2001/11089) That he ... on 14 December 2001 did assault Anna Morant. Convicted. Sentenced to 26 periods of periodic detention.

* (CC 2001/11090) That he ... on 14 December 2001, did wilfully and unlawfully damage property, to wit, one recycling wheelie bin, belonging to the Territory. Convicted. Recognisance $2,000 for three years, 12 months supervision.

* (CC 2001/11091) That he ... on 14 December 2001, did intentionally and without lawful excuse, damage property, to wit, a timber paling fence, belonging to Stanley John Fox. Convicted. Discharged on entering bond on case CC 2001/11090.

* (CC 2002/1476) That he ... on 16 January 2002 ... did contravene [an interim restraining] order. Convicted. Discharged on entering bond on CC 2001/11090.

3. A notice of appeal was filed on 7 May 2002. It sought that the "sentence" be set aside in each matter. The effect of the filing of the notice of appeal was to stay "the enforcement or execution of the conviction, order, sentence or penalty appealed from ..." (s 216 Magistrates Court Act 1930 (ACT)).

4. On 31 July 2002, leave to amend the notice of appeal was granted so as to seek the setting aside of the pleas of guilty entered in the Magistrates Court, quashing of the orders made and substitution of pleas of not guilty with consequential orders either remitting the matters for hearing in the Magistrates Court, rehearing the matters in this Court or, as a last resort, substituting a "fair and appropriate penalty".

"1. The sentence is manifestly excessive and incorporates a conditional recognizance release in combination with a periodic detention order.

2. The Pre-sentence Report seen by Magistrate Somes had serious deficiencies. Particular note is made in regard to the Report writer's view of Mr Gee's compliance with court orders and requests to attend for interviews.

3. Magistrate Somes took little regard to [sic] fact that the appellant has not been convicted of any other offences over a seven year period.

4. Magistrate Somes did not accept the appellant's submissions on why Periodic Detention should not be granted.

5. The integrity of the Appellant's pleas to charges CC01/11089, CC01/11090, CC01/11091, and CC02/1476 as admissions of guilt was affected by the circumstances of the Appellant's appearances and legal representation before the Magistrates Court, and specifically the lack of legal advice concerning -

5.1 the Appellant's state of mind when damage was caused to the fence and wheelie bin;

5.2 the Appellant's potential defence to the charge of common assault arising from the preservation of the Appellant's possession of his property; and

5.3 the circumstances of the allegations said to contravene a restraining order."

6. In support of those amended grounds, particularly ground 5, the appellant deposed in his affidavit of 30 July 2002 as follows:

"3. I was represented by solicitor, Daryl [sic] Perkins in connection with the matters before the ACT Magistrates Court. On the occasions when Daryl Perkins appeared before the Magistrates Court on my behalf, I met him outside the Courtrooms. I have never been to Daryl Perkins' Office. On one occasion, Daryl Perkins met me outside the Courtroom and said to me words to the effect, "Well, what do you want to do?". I repled [sic], "Whatever is the easiest. I just want to get this over and done with"

4. In early May 2002, I spoke with a barrister, Judith Keys concerning an appeal against my convictions on 16 April 2002. I advised Miss Keys, among other things, that I wished to change my plea of guilty to not guilty for the following reasons:

4.1 I did not intentionally damage the fence paling or the wheelie bin on 14 December 2001;

4.2 The alleged assault of Ms Morant on 14 December 2001 involved the `defence' or the preservation of my possession of my car;

4.3 I dispute the allegations said to contravene an interim restraining order in which Miss Karen Priest was the applicant."

7. In a further affidavit of 15 October 2002, he expanded on that account, deposing:

"2. On 13 December 2001, I resided at 12 Riley Close, Ngunnawal with Ms Anna Morant. At that time, I owned (being paid off by car loan) a white Ford Capri sedan (ACT registration YFQ 833). That evening, Anna and I attended a Christmas party at Sails Restaurant at Belconnen. We intended to drink alcohol at the party, so we left my car at our place at Ngunnawal, and caught a taxi to Sails.

3. During the evening at the party at Sails (about 9-9.30pm), Ms Morant spoke to me and said words to the effect, "I'm leaving. I'm gonna go and stay with Karen at her place for the night". Anna then left.

4. I left Sails at about 11.30pm. I wanted to see if Anna had gone to Karen's place and if she wanted to come home that evening (seeing it wasn't all that late). Rather than catch two taxies, I walked from Sails to Karen's place at Beddome Place, Florey, and after I had found out what was happening, I intended to then catch a taxi from Florey to Ngunnawal. But when I got to Karen's place in Beddome Cres [sic], Florey, I was surprised to see my car parked in the driveway. I was extremely puzzled and concerned about this because Anna was unlicenced [sic] and it took me by surprise.

5. I knocked on the front door, saying "What is my car doing here?" I said this loudly a number of times. I don't remember who answered the door and I don't remember anyone answering my question. I saw Anna - she was standing in the loungroom [sic]. I said to Anna, "Give me the fuckin car keys". She replied, "No. I don't want to give you the keys", and seemed to look at her handbag which was on the floor. I then looked at Anna's handbag and saw my car keys which were easily visible inside. I then picked up the handbag, pulled it quickly away from Anna, and moved toward the front door. Either the shoulder strap of the handbag was caught around Anna's leg or arm, or she lunged after me - anyway, she fell as I was moving away from her with the handbag. I turned and looked at Anna briefly, I took my car keys out of her handbag, put the handbag on the sofa and left the premises. I got into my car and reversed out of the driveway. I drove to the end of the street (cul-de-sac). It then occurred to me that I had been drinking alcohol and was in no fit state to drive, even after walking from Sails to Florey. Anna seemed relatively sober (she had to go to work the next day and had left the party early) and I hadn't asked Anna if she wanted to come home with me. I turned around and drove back into the driveway at Karen's place. The driveway is angled and dark because it is surrounded with thick shrubs, and there were two wheelie bins which were placed in the middle of the driveway about 3 or 4 feet short of the fence at the end of the driveway. I intended to stop about 3 feet from the fence at the end of the driveway, but I did not see the wheelie bins (which were about 3 to 4 feet before the fence) and the front of my car hit one of the wheelie bins knocking it over. I reversed away from the wheelie bin and sounded the horn. Anna came out and approached the passenger side of the car. I said, "Are you coming home". She said "Yeah" and I said, "Well get in the car". Anna said "I don't want to because you're pissed and angry". I said, "Well get in and drive. I can't drive, I'll drive through the fence". Anna said, "Wait till I get my stuff". I got out of the car and Anna went back inside the house. Anna then made several trips into the house, bringing out bags and things. She seemed to be taking a long time. She then said she had forgotten her toothbrush and returned inside. Then she said she had forgotten her mobile. I got frustrated and bored with Anna saying she was coming and then taking a long time to get all her things in the car. It did not occur to me that she was just "stalling" until I saw a police van approaching. I got the keys out of my car and I then walked to Florey shops intending to call a cab. On the way to Florey shops, I thought about the police arriving, and I decided to return and find out what was happening. I walked back to Karen's place in Beddome Cres and I was then arrested by the police and taken to the watchhouse.

6. I do not recall seeing either Ben Fox or Karen Priest at their place in Beddome Cres at all that evening.

7. On 16 January 2002, I received a telephone call from a person I know to be Anna Morant's supervisor at work. He said, "I've been trying to get Anna on her mobile but it's turned off. Can you tell her to contact me today otherwise she might lose her job". Although Anna and I had decided to split following the events on 13-14 December 2002 [sic], we remained in contact (she had dropped the AVO prohibiting me from contacting her on about 15 December 2001) and she had told me that she was going to visit someone at the Belconnen Remand Centre on 16 January 2002. I drove to the Belconnen Remand Centre and spoke to the receptionist about speaking with a visitor to the Remand Centre, Anna Morant. I waited and the receptionist returned and indicated that Karen Priest did not want to speak with me. I left immediately and returned to my car. As I was driving away, passed the Remand Centre, I saw Anna Morant and Karen Priest walking on the footpath. I pulled the van over to the side of the road (on the opposite side of the street) and called out "Anna". When Anna stopped and faced my car, I yelled out the window, "Your boss rang and said to call him today or you'll lose your job". I then drove off. I recall that I appeared in the ACT Magistrates Court the following day (about 17 January 2002) concerning the AVO taken out to protect Karen Priest, but Ms Priest did not attend and the AVO was dropped. I did not make any telephone calls to Karen Priest on 17 January 2002. It is my understanding that Ms Priest made a complaint to the police on about 18 January about the `incident' on 16 January 2002 as well as alleged telephone calls on 17 January 2002, and the AVOs were then restored. Other than appearing on about 17 January 2002 when the AVO was dropped, I have not defended the Orders because Karen is a friend of Anna's from High School, she is not a friend of mine and therefore I have no intention of approaching or contacting Karen Priest.

8. I was represented by solicitor, Daryl [sic] Perkins in connection with the matters before the ACT Magistrates Court. On the occasions when Daryl Perkins appeared before the Magistrates Court on my behalf, I met him outside the Courtrooms. I have never been to Daryl Perkins' Office. My discussions with Mr Perkins were usually short and to the point. From my perspective, the conduct I was alleged to have done seemed to be minor; also, Anna and I had decided to split following the incident following the party at Sails, and did not want Anna and my splitting up to be complicated by a hearing with Anna being called as a witness; I therefore decided to plead guilty and get on with my life. On one occasion, Daryl Perkins met me outside the Courtroom and said to me words to the effect, "Well, what do you want to do?". I replied, "Whatever is the easiest. I'll plead guilty. I just want to get this over and done with"."

8. It should be emphasised that the matters now raised as possible defences to the matter alleged were not raised by the appellant either with Mr Perkins or the learned Magistrate. Nor is there any suggestion that the appellant was unaware of the facts alleged by the informant, of the Pre-sentence Report of 11 April 2002 or the three page criminal history, all tendered to and taken into account by Magistrate Somes.

9. On that material, there could be no criticism of Mr Perkins in accepting the appellant's instructions to plead guilty to all charges, nor of the learned Magistrate in accepting those pleas.

10. Ms Keys, for the appellant, pointed out, quite correctly, that had the appellant's version of events in respect of the first three charges been accepted, even if only as a reasonable hypothesis, he would have been entitled to an acquittal. It is true that he would have been negligent in causing the property damage complained of, but that would be insufficient for a finding of guilt of those charges. The assault charge would fail unless the prosecution excluded any hypothesis that the appellant's actions in using force in relation to Ms Morant were directed only towards and were perceived by him as reasonably necessary to recover his property. It was common ground that Ms Morant had the appellant's keys and declined to surrender them. The fact, if it be so, that Ms Morant feared that the appellant would drive whilst intoxicated, whilst it was, from her perspective, a good reason to resist giving him his keys, it did not diminish his entitlement, from his perception, to possession of them.

11. The interim restraining order in relation to Ms Priest was in a different situation. It was not disputed that there was an interim restraining order requiring the appellant not to approach within 100 metres of Ms Priest.

12. Ms Priest alleged that on the occasion of the alleged breach, she had been in company with Ms Morant whilst visiting the Belconnen Remand Centre. Ms Morant received a message that the appellant wanted to speak to her. She declined to accept the call. Indeed bail conditions forbade him approaching either of them. They alleged that the appellant drove up to them after they had left the Remand Centre and whilst they were walking on a footpath away from it. The appellant spoke to Ms Morant briefly and drove off. It was not suggested he behaved violently or uttered threats, though Ms Priest feared that he might.

13. The appellant does not disagree with those latter allegations. He says, however, that he was merely relaying an urgent message from Ms Morant's employer.

14. On that basis, it seems to me that whilst he intended no breach of the restraining order, he in fact did commit a breach of it. He had approached within 100 metres of Ms Priest. He was aware that he was doing so. The fact that he did not intend to communicate with her does not, in law, excuse that breach.

15. His Worship accepted there was no violent behaviour involved in the breach of the restraining order and that it was "a little less serious" than other breaches alleged against others from time to time. Had his Worship been aware of and accepted the appellant's reasons for his approach, it would have, perhaps, further supported that conclusion. However, it was a clear breach, even so, of the interim restraining order.

16. Ms Jones, for the respondents, accepted that the appellant's version of the events of 14 December 2001 would, unless rejected, warrant acquittal on each count relating to the events of that day. However, she submitted, to permit a change of plea is a discretionary matter. It should be permitted only to avoid substantial injustice. It is apparent that any disadvantage arising from the acceptance of the pleas was brought by the appellant upon himself. He had access to legal advice and chose not to use it appropriately. Those submissions are clearly correct.

17. The central issue is whether the appellant may or should now be permitted to raise, on appeal, a matter he did not, and once convicted and sentenced, could not, have raised in the Court below.

18. Ms Jones accepted that the Court had power to entertain such an application on appeal notwithstanding that the appellant had brought the situation upon himself, but submitted that it should not accede to it in this case.

19. In Liberti v R (1991) 55 A Crim R 120, the power of a court on appeal to permit a change of plea after conviction on a plea of guilty was considered. The appellant had pleaded guilty, after legal advice, before a Magistrate. He was then committed for sentence to the District Court of New South Wales. On appeal, he claimed the facts he had admitted did not support the convictions despite his plea of guilty. The latter contention was well-founded. So far as the discretion to allow such a change of plea was concerned, Kirby P (Grove and Newman JJ concurring) at 121-2, stated:

"... a court will entertain an appeal against ... a conviction, notwithstanding a guilty plea, if it appears:

(a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or

(b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged ..."

20. That power, his Honour said, at 122, should be exercised with caution:

"This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ..."

21. In the present case, I accept that the only misunderstanding the appellant could be said to have suffered was his perception that the alleged facts, particularly those relating to 14 December 2001, were less serious than the learned Magistrate would take them to be. He, therefore, made a decision not to offer his version of events in the interests of getting the matters "over and done with".

22. Of course, no court, consistently with its duty to do justice, could entertain a plea of guilty on that basis, if the plea of guilty was not supported by the admitted facts.

23. In this case, on the facts conceded by the appellant before the learned Magistrate, he could and, indeed, should, have been convicted. There may have been some argument as to the entitlement of the appellant to obtain recovery of the keys but a pre-emptive shove to get access to Ms Morant's bag could, and probably would, have been seen as the use of unnecessary force.

24. Badgery-Parker J in R v Davies (1993) 19 MVR 481 at 484 (Wood and Mathews JJ agreeing), noted, however, that the categories of cases in which a change of plea will be permitted do not exhaust:

"... the situations in which, a plea of guilty having been recorded, the Court of Criminal Appeal may entertain an appeal against conviction ... [T]he test is whether the circumstances reveal a miscarriage of justice."

Reference was also made to the "integrity of the plea" and whether it appears that the person entering the plea "was not in possession of all the facts and did not entertain a genuine consciousness of guilt" (at 485).

25. Unlike the present case, the appellant in Davies (supra) lacked personal knowledge of the facts constituting the alleged offence.

26. In R v Cincotta (Hunt CJ at CL, Grove and Allen JJ, unreported, 1 November 1995) the appellant sought to change the refusal by the trial judge to permit him to withdraw his guilty pleas.

27. Hunt CJ at CL (Grove and Allen JJ agreeing) stated:

"A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. There must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt." (Footnote omitted)

28. The Court at first instance was unpersuaded that the appellant's plea of guilty was the result of counsel overbearing the appellant's will. The Crown case was strong. It seems that her Honour, the trial judge, took the view that the change of plea application was merely designed to create a more favourable situation by reason of delay. She refused the application. That conclusion was supported on appeal.

29. In R v Favero [1999] NSWCCA 320 (Sully, Hidden and James JJ, unreported, 19 October 1999), Sully J (Hidden and James JJ agreeing) allowed a withdrawal of pleas of guilty, though declined at first instance, where it appeared that the appellant had not been properly advised by his counsel. He had "an arguable case" for acquittal.

30. If a represented defendant may be relieved from the consequences of inadequate advice, will that apply where the inadequacy results from a defendant's own decision to keep from his counsel facts which he well knew might render it inappropriate to plead guilty?

31. In R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, the appellant sought to withdraw a plea of guilty to a drug importation charge. The trial judge had rejected an application to exclude certain incriminatory evidence. He then changed his plea from not guilty to guilty. It was the latter plea from which he sought leave to resile.

"It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. Nevertheless, other than the judgment of Nagle CJ at CL in Chiron [(1980) 1 NSWLR 218], no decision in this Court has allowed an appeal after a plea of guilty in the case of a mere wrongful admission of evidence which does not impinge on the quality of the plea in any manner."

33. In Toro-Martinez (supra), in contrast with the present case, the appellant did not suggest any positive case to support the view that he was or might be innocent. His case was, merely, that had the evidence he challenged been excluded, the case against him might (or even would) fail.

34. To similar effect was R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472. In that case, the appellant explained his pleas of guilty by reference to legal advice that he would receive a lesser sentence if he did so. He did assert that he was innocent. He expected his de facto wife to support him in that contention. Unfortunately for him, his de facto adhered in evidence to the statement she had made to police and the evidence she had presumably given at committal. The appellant was, therefore, asserting that he pleaded guilty despite a continuing belief in his innocence only because of the shock of this betrayal.

35. Spigelman CJ (Simpson J and Carruthers AJ concurring) said, at 480:

"If that evidence were accepted by this Court then in accordance with the appropriate tests to which I have referred above, there would have been sufficient doubt as to the bona fide nature of the plea for this Court to allow the appeal and direct a new trial be held."

36. However, his Honour was satisfied that the appellant's evidence should be rejected. There was, he considered, no real question about the appellant's guilt (see also, R v Bayliss [2002] NSWCCA 11 (Wood CJ, Sully and Dowd JJ, unreported, 14 February 2002)).

37. Thus, the principle is clear. The appellant bears the onus of satisfying me that, if he is not permitted to change his pleas, a substantial miscarriage of justice will have occurred. If there is a real chance that the version of the facts given by the prosecution is not genuinely accepted by the appellant and, further, that he has an arguable case to challenge that version so that, if the appellant's version of the facts was accepted, he would be acquitted, then it would be a miscarriage of justice to deny him that chance.

38. Of course, that conclusion depends in turn on whether there is any credibility in the appellant's claim that the facts were as he asserted them to be as opposed to the version supported by the prosecution witnesses.

39. The prosecution and the asserted defence cases vary, not so much on the objective indicia, but on the contrary assertions of utterances and actions accompanying the objective or conceded facts. The objective facts are:

* Ms Morant had possession of the appellant's keys and refused to give them back;

* The wheelie bin and fence were damaged by the appellant's driving of his vehicle.

40. There was emphasis, in the Pre-Sentence Report, on the appellant being:

"... quite at ease in minimising the magnitude of the offence whilst appropriating at least some of the blame for the offence on the victim. Mr Gee accepted little responsibility for his actions in this instance and stated that all property damage was extremely minimal whilst he related details of the physical component of the offence as `I only tried to get the car keys off her'."

41. Whilst that assessment does not necessarily contradict the prosecution case, it is consistent with the appellant's current assertions.

42. Certainly, in contrast with Toro-Martinez, despite the clear conclusion that this appellant has only himself to blame for offering, as he claims to have done, false pleas of guilty, I would be left with a feeling of disquiet if his change of plea was to be refused.

43. That comment applies only to the charges relating to the events of 14 December 2001. I am satisfied that there is no real doubt about the guilt of the appellant in respect of the breach of restraining order of 16 January 2002. However, the penalty to be imposed in respect of that offence may have been different had it not been accompanied by findings of guilt in respect of the earlier matters.

44. In the result, therefore, I uphold the appeals against conviction in respect of the first three matters. The convictions and sentences imposed are set aside accordingly. I uphold the appeal against sentence in respect of the fourth matter.

45. I remit all matters to the Magistrates Court to be dealt with according to law.

46. I will hear the parties as to costs and any other consequential orders.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Solicitor for the Respondents: Director of Public Prosecutions