Kim v R

Facts

1. The facts of the applicant's offence were set out in a document tendered without objection before the primary judge. The document was headed "Agreed Statement of Facts". The following has been drawn from it.
2. The victim of the offence, Mr Ananh Songvilay, was on the dance floor at the Verandah Bar in Elizabeth Street, Sydney at about 2.40am on Sunday 9 December 2012. A man called Joseph Shin (who was sentenced at the same time as the applicant) approached him from behind, grabbed his shoulder causing him to turn around and then punched him in the face. This caused Mr Songvilay to fall to the ground. It was part of the agreed facts that this assault was unprovoked.
3. The applicant, who had been standing about five metres away, saw this and immediately walked over and kicked Mr Songvilay in the face as he was lying on the ground. The applicant then punched him three times to the face. Mr Songvilay was unconscious at the time he did so.
4. The applicant was dragged away by security guards who detained him. An ambulance was called and Mr Songvilay was taken to hospital. Police attended and arrested the applicant. He told them, "I kicked a guy in the head".
5. The applicant participated in a recorded interview at a police station. He was asked to explain what had happened and he said, "I saw a fight and then a guy on the floor. I kicked him in the head". He was asked how hard he kicked the victim and he said, "Like a soccer ball". He also admitted leaning down and punching the victim and when asked how hard he replied, "As hard as I could". When asked why he had assaulted the victim he said, "I thought it would get attention. I might look cool". The agreed facts included that this assault was unprovoked.
6. The applicant also told police that at the same time that he was assaulting Mr Songvilay there were other people kicking him.
7. The applicant told police that he had been drinking and that his level of intoxication at the time of the incident was "high".
8. Mr Songvilay sustained a number of injuries. They included bruising to his cheek and around his right eye; swollen eyes and lips; the loss of several teeth; a fracture to the inner wall of his eye socket; a fracture of the bone around two missing teeth; and a tooth pushed back into the jaw with a fracture to the surrounding bone in the lower jaw. The opinion of a dental surgeon was that due to the severity of the trauma, Mr Songvilay will likely have long term dental problems such as fracture of teeth, root canal therapy and temporal mandibular disorder.

The CCTV footage

1. During the course of the hearing of the application, senior counsel for the applicant played the CCTV footage of the incident in question. Prior to it being played he referred to the applicant's admission that others were involved in striking the victim and said "we would argue that the CCTV footage tends to suggest exactly the opposite". This was said to be relevant to the quality of the advice the applicant was given by his solicitor. The Court viewed the footage both in real time and in slow motion. I have viewed it again a number of times in chambers. For my part, the vision is so poor in depicting what occurred after the initial punch by Mr Shin when the victim went to the ground that nothing useful can be drawn from it; it certainly does not "suggest exactly the opposite" of what the applicant admitted in his police interview.

The applicant's affidavit

1. An affidavit sworn by the applicant on 17 December 2014 was the primary evidentiary basis for the ground of appeal against conviction asserting that acceptance of his plea of guilty gave rise to a miscarriage of justice.
2. In that affidavit the applicant said that he first retained Martin Ricci, Solicitor, in late December 2012 or early January 2013. Mr Ricci came to act for Joseph Shin as well. The applicant claimed that he thought they were both charged with the same offence. He said he received a copy of the brief of evidence which included CCTV footage from Mr Ricci in late March or early April 2013. He only read about five pages of the brief because it made him depressed. He did not watch the CCTV footage.
3. In a conference with Mr Ricci on or about 23 August 2013 he was told, "We have to plead guilty to the charge of 'recklessly causing grievous bodily harm in company' because of what you said to the police in the interview". Mr Ricci gave him a draft statement of facts and said something to the effect that he would try and have some aspects of it removed. The applicant claimed that he was never "one hundred per cent sure of what was going on" but he "accepted Mr Ricci's advice without question".
4. The applicant claimed that Mr Ricci did not discuss with him or provide advice on what "in company" meant or what "recklessly causing grievous bodily harm" meant. He claims that they also did not discuss the offence to which Mr Shin was pleading guilty. He claimed that he thought the "in company" aspect of the charge he faced was a reference to him being in company with Mr Shin; he did not appreciate that it meant in company with other people. He said that he was never advised what "grievous bodily harm" and "actual bodily harm" meant and he did not know that in pleading guilty he would be admitting to having caused all of the serious injuries sustained by the victim with other unknown people.
5. The applicant also claimed that he was never advised that he had an option to plead not guilty. He was advised to plead guilty and he agreed to do that.
6. The applicant attended the Downing Centre Local Court on 27 August 2013. Mr Ricci represented both him and Mr Shin. The applicant recalled the magistrate reading out the charge and Mr Ricci entering the plea of guilty for him to the charge of recklessly inflicting grievous bodily harm in company. (Presumably he heard the different charge read out to which Shin pleaded guilty.)
7. The applicant said that during one of the occasions that the matter was mentioned in the District Court after he was committed for sentence, he learnt that Mr Shin was to be sentenced for assault occasioning actual bodily harm. He said he did not understand why he was to be sentenced for a less serious charge as he had believed that they were both charged with causing the same injuries to the victim in the company of each other. However, he did not ask Mr Ricci about this as he trusted that he was doing everything which was in his interest.
8. The applicant recounted some aspects of the progress of the proceedings which are not presently relevant. Ultimately, Mr Eric Oates of counsel was briefed by Mr Ricci to appear for the applicant and Mr Shin at the sentence hearing.
9. On 9 May 2014 the applicant had a conference with Mr Oates in his chambers prior to court. He said there was no discussion about the agreed statement of facts and nor was he asked to sign it. There was no discussion as to whether he adhered to his plea of guilty or what that meant. He said he was advised not to give evidence.
10. The applicant claimed that it was only after he was sentenced that he understood that it was on the basis that he had acted "in company" with unknown people and that together they had caused grievous bodily harm.

Cross-examination of the applicant

1. The applicant agreed that prior to being sentenced he had achieved his Higher School Certificate and was undertaking study for a Diploma of Commerce at university.
2. A continuing theme throughout the cross-examination of the applicant was his asserted inability to recall. He claimed an inability to recall aspects of the events concerning the assault upon Mr Songvilay and his participation in an interview with police. He could not even remember that Mr Shin was the first person to strike Mr Songvilay; although he "believed" he was involved in the assault. When certain passages of the interview were read to him he claimed that he still could not recall.
3. Despite his poor recollection, he was able to deny that others were kicking Mr Songvilay as he was kicking and punching him. He was also adamant that he did not know and had never met Mr Songvilay. The Pre-Sentence Report records that he said that "the victim of the offence was known to him as they had been co-workers" but he claimed "that's not true".
4. The applicant was then asked about whether he had told Mr Tim Watson-Munro, the author of a psychological report that was tendered at the sentencing hearing, that he had a problem with the victim concerning a girl. At first he referred to his poor memory because "I've just been trying to forget about it", but when further pressed he agreed that the victim was known to him. He agreed that when he told police the contrary he had lied.
5. The applicant claimed that he did not know what a "custodial sentence" was. He was asked about having signed instructions to Mr Ricci on 27 August 2013 confirming his plea of guilty which included, "I understand that the sentence I will receive for these matters will be a custodial sentence". He claimed that he signed the document without having read it and reiterated, "I didn't even know what a 'custodial sentence' was". I note that he referred elsewhere in his evidence to conversations with Mr Ricci about the prospects of going to gaol. He contradicted his earlier evidence when he said that he remembered Mr Ricci's clerk telling him in a telephone conversation that "you are likely to face a custodial sentence".
6. The applicant was asked about having a conference with Mr Oates on the morning of the sentence hearing. It was suggested that Mr Oates had said that "the fact that you had assaulted the victim while there were other people also assaulting him was one of the matters the court would take into account" and he agreed. But then, somewhat curiously, he said that he found out after he went to gaol that Mr Oates was not actually representing him on that day.

Evidence for the Crown

1. The Crown read an affidavit affirmed by Mr Ricci. Mr Oates of counsel was called to give oral evidence.

Mr Ricci's evidence

1. Mr Ricci has been a solicitor practicing almost exclusively in criminal law for over 20 years. He assumed carriage of the applicant's matter in early January 2013. He said that at the outset he explained to the applicant each element of the offence of recklessly causing grievous bodily harm in company. Specifically, he explained what "grievous bodily harm" was. He explained that the "in company" element was made out by the admission to police by the applicant that "whilst he was assaulting the victim, he observed other unknown people kicking the victim". It was his view that there was an implied "common purpose" to cause harm to the victim.
2. Mr Ricci said that he explained to the applicant that "recklessness" according to the common law required foresight of the possibility of grievous bodily harm resulting from the assault. (That was in accordance with Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 but s 35 of the Crimes Act was amended with effect from 21 June 2012 as a result of that decision so as to only require (for the purpose of the offence in question) foresight of causing actual bodily harm.)
3. Mr Ricci said that he had several conversations with the applicant throughout the proceedings concerning the nature and effect of the admissions he had made to the police as set out in the police statement of facts. That statement of facts set out in summary form a description of the serious injuries the victim sustained and included the applicant's admission to police that there were other people assaulting the victim at the same time as the applicant was.
4. Mr Ricci assessed the applicant as an intelligent young man. He claimed that the applicant reassured him on numerous occasions that he understood the charge he was facing; its seriousness; and that he was facing an almost certain custodial sentence.
5. The applicant was provided with a copy of the brief of evidence on 20 May 2013. It included DVDs containing CCTV footage from the Verandah Bar. Mr Ricci said that the applicant subsequently confirmed that he had read the brief and viewed the footage. He recalled the applicant remarking that he found it "very hard to watch" because he was so embarrassed about his behavior.
6. Mr Ricci had a conference with the applicant on 27 August 2013 in which he was instructed to confirm the plea of guilty. Annexed to Mr Ricci's affidavit were the applicant's signed instructions bearing that date. They included that "the consequences and ramifications of these instructions have been explained to me by … Martin Ricci"; that the applicant had "carefully considered all of [his] alternatives"; and that he had discussed the matter with friends and "comprehensively with Martin Ricci". He also stated that he understood that he would receive a custodial sentence.
7. The matter was first listed in the District Court before the Chief Judge on 6 September 2013. The plea of guilty was confirmed and the matter was stood over for sentence on 29 November 2013. There followed a series of applications to vacate hearing dates until ultimately the matter came before North DCJ on 9 May 2014. The delays were explained on the bases of the applicant being tardy in providing funds for his representation and the need to obtain a psychological report.
8. In the weeks leading up to 9 May 2014 the applicant was assisted by a law clerk employed by Mr Ricci to gather references and to prepare an "apology letter to the judge". The law clerk attended upon counsel in a conference with the applicant on the morning before he appeared before North DCJ. Mr Ricci claimed (from having been informed by his clerk) that counsel discussed with the applicant that he had pleaded guilty to a charge of recklessly causing grievous bodily harm and that he was highly likely to receive a custodial sentence. As Mr Shin was present at the same conference, it is reasonable to infer that counsel spoke about his, lesser, charge of assault occasioning actual bodily harm.
9. In cross-examination, senior counsel for the applicant took Mr Ricci through a legal analysis of what must be established to prove that an offence was committed "in company". (The questions were quite obviously derived from the judgment of Macfarlan JA in Markou v R [2012] NSWCCA 64; 221 A Crim R 48 at [24]-[25].) Mr Ricci's responses indicated that he had a correct understanding of the concept. He did not provide the applicant with a technical legal analysis of it but said "I think he understood quite clearly what [in] company meant".

Evidence of Eric Oates

1. Mr Oates' direct involvement with the applicant was limited to his conference on the morning of 9 May 2014 and subsequent appearance before North DCJ. He described the applicant as "aware, articulate and attentive". He said that he had some typed notes of the submissions he intended to make on sentence which he supplemented with handwritten notations made during the conference. These included against typed notes referring to "actual violence" and "in company" as being potential aggravating factors (per s 21A(2) of the Crimes (Sentencing Procedure) Act), the handwritten note "but none really as offends De Simoni" (a reference to The Queen v De Simoni [1981] HCA 31; 147 CLR 383). From this Mr Oates considered that he believed he did discuss the "in company" aspect of the charge with the applicant.
2. In cross-examination, Mr Oates said, "I can't imagine I didn't discuss with [the applicant] the nature of the act and the fact that it was committed in company as being a reason for my assessment that he would probably be imprisoned". He did not, however, discuss what the prosecution were required to prove in respect of the essential elements of the charge, particularly, being "in company".

The applicant's police interview

1. The Crown relied upon certain responses given by the applicant in his police interview as (a) confirming that the "in company" element of the charge was well-founded in the applicant's own account; and (b) supporting the prudence of the advice given by Mr Ricci. His answers included the following (commencing with his answer to question 30): "(W)hat I saw was just a um, just a lot of heads turning and then I looked and then um, there was just a fistfight. The guy was on the floor. Um, couple of Asian were around him and, yes, everyone was looking and, you know, I thought … some attention, pretty much. So I thought I'd just, just join. Q31 Could you just, sorry, just explain that last bit you said to me then. A. Um, thought I just um, wanted some attention. Q. 32 You wanted some attention? A. Yeah. Q33 What do you mean by that? A. Um, I thought it'd be cool to sort of, you know, get in a fight, you know, just with everyone watching me and um, I just thought it'd be cool, be a good idea, you know, just with everyone watching me, just, yeah. Q34 And what do you think would happen if people saw you in that fight? A. Um, people maybe think I'm cool. Q35 Yeah? A. Maybe um, you know, they see me, they're like, Oh, that guy got in a fight, you know, or maybe, I don't know, have some respect, I guess. Q36 Mmm. Um, you said ah, can you describe who was involved in this fight - - - A. Um - - - Q37 - - - when you first saw it break out? A. There was a girl who was screaming. Um, all I remember was, I don't know, I think, I just remember bunch of guys just kicking the guy on the floor. … Q41 … Ok, and you saw him on the floor. What was happening when he was on the floor? A. Um, he was getting kicked. Q42 Yeah. How many people were kicking? A. I'm not too sure. Maybe four people, five people. Q43 Could you describe any of those people who were kicking him?A. Um, one guy was tall. I don't know. I only saw a tall guy and a girl, They were screaming. Q44 Were all of these people Asian appearance? A. Yeah. Q45 Ok. You said they were kicking a guy on the floor. Can, could you tell me what this guy on the floor was doing? A. No, he was just getting kicked. … Q51 Yeah, ok. So he's on the floor. Um, a male who you can't describe any further um, he's been kicked by ah, another, a number of other people. Just describe exactly what you've done then. A. Um, well, I see, I seen the fight break out and I don't know what came over me but I was drunk, I was a bit angry at the events that happened that night … and then um, just the, just the fight broke out and then I went over and then, 'cause everyone was watching and … I just looked at him and then kicked him in the head. … Q69 Ok. Were, just describe what he, how he was positioned as he lay there? … A. He was um, laying like this and I was here and his face was here and then I looked down at him and then he seen, 'cause he was getting kicked as well and then that's when I, I kicked him. (Emphasis added)

Pre-Sentence Report

1. The Pre-Sentence Report tendered in the sentence hearing included that the applicant "disagreed with the Statement of Facts in two respects". The "two respects" concerned whether he knew the victim and the degree of his (the applicant's) level of intoxication. He did not express any disagreement with the "agreed fact" that "whilst he was assaulting the victim, he observed other unknown people kicking the victim".

Submissions

1. In written submissions to this Court prepared by junior counsel for the applicant it was contended that the failure of the applicant's lawyers to explain to him the nature of the offence meant that he did not understand what it was that he was pleading guilty to. The plea was entered on his behalf by his lawyers without them ever having obtained instructions from him detailing his version of events or an explanation for what he said in his police interview. It was submitted that it was clear from the applicant's affidavit evidence that he did not understand what he was pleading guilty to and therefore could not have entertained a genuine consciousness of guilt.
2. It was submitted that there were triable issues with respect to causation and particularly whether or not the victim received the injuries which are said to amount to grievous bodily harm as a result of being punched to the ground by Shin or whether it was as a result of Shin kicking the victim once he was on the ground or as a result of the assault by unknown offenders. (This submission was abandoned at the hearing.)
3. It was submitted that there was a further triable issue as to whether the applicant was "in company" with unknown persons and acted in concert with them. That is, whether there was an unspoken understanding or an arrangement amounting to an agreement between strangers to commit the offence.
4. In oral submissions, the issue was confined to the adequacy and correctness of the advice given by Mr Ricci concerning the "in company" element. Specifically, it was contended that there should have been advice given that there "could be an issue" about the Crown's ability to prove this element. Senior counsel argued that R v Markou, supra, at [24]-[25], [28] and [33]-[34] set out the principles that should have been the subject of discussion and advice to the applicant.
5. It was submitted that there was a potential issue about this because the applicant had not said in his police interview that his reason for being in the fight was to participate in the "clobbering" of the victim. It was not enough that the applicant had joined in the assault; his position was that he involved himself for his own personal reasons. Cited as an example was his response to Q30 which included the admission that he participated because he wanted "some attention".
6. A submission was also made that the CCTV footage showed that the applicant was "inaccurate" when he said that other people were involved in the assault after Shin had left. The medical evidence was said to support this proposition.
7. Senior counsel for the Crown submitted that the advice provided to the applicant by Mr Ricci was entirely correct and appropriate and the plea was entered with full knowledge of the elements of the offence. The facts to which the applicant had agreed in his police interview were that the applicant's friend, Shin, first punched the victim who fell to the floor and the applicant and other people then joined in to assault him further. An implicit common purpose was clearly established. The applicant told the author of the Pre-Sentence Report that he agreed with such an account which was set out in the "Agreed Statement of Facts".
8. It was submitted for the Crown that Mr Ricci's evidence should be preferred to that of the applicant. The applicant's evidence was described as "unbelievable"; he was not making a genuine effort to answer questions in cross-examination. His claims of having difficulties in recalling matters and to having not understood matters were inconsistent with a person of the applicant's education and linguistic abilities.

Principles applicable to an appeal against conviction after a plea of guilty

1. There are many judgments of this Court in which the principles applicable to an appeal against conviction following a plea of guilty have been collected: see, for example, R v Liberti (1991) 55 A Crim R 120 at 121-2; R v Toro-Martinez [2000] NSWCCA 216; 114 A Crim R 533 at [21]-[27]; R v Hura [2001] NSWCCA 61; 121 A Crim R 472 at [32]-[33]; R v Van [2002] NSWCCA 148; 129 A Crim R 229 at [48]-[50]; Lawson v R [2011] NSWCCA 44 at [32]-[36]; Khamis v R [2014] NSWCCA 152 at [57]-[59].
2. The starting point is that an asserted want of understanding of what was involved in a plea of guilty is approached with "caution bordering on circumspection" given that a plea is an admission of all of the legal ingredients of an offence and is the most cogent admission of guilt that can be made: R v Sagiv (1986) 22 A Crim R 73; and R v Liberti, supra.
3. It is necessary for the applicant to establish that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157. Without being exhaustive, that may be shown in circumstances where: ● the applicant did not appreciate the nature of the charge to which the plea was entered: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; R v Iral [1999] NSWCCA 368; Meissner v The Queen, supra, at 157. ● the applicant was not in possession of all of the facts and the plea was not attributable to a genuine consciousness or recognition of guilt: R v Murphy [1965] VR 187 at 191; R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep); R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998; unrep); and R v Favero [1999] NSWCCA 320. ● there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt: R v Sagiv, supra; or where ● the advice of the applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118.
4. Hoeben CJ at CL observed in Khamis v R, supra, at [59] that "any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. Ordinarily, this task is not an investigation of the applicant's guilt or innocence; rather it is an examination of the integrity of the plea of guilty itself".

Determination

1. The applicant's evidence was not such as to engender confidence that it could be accepted in preference to that of Mr Ricci as to what passed between them in terms of advice as to the applicant's plea. His claimed inability to recall many matters was uninspiring. His changing version about whether he knew the victim, and his claim that he did not know what a custodial sentence was, did not promote confidence in his veracity either. And his denial that others were kicking the victim as he was kicking and punching him flew in the face of his admission to the police that this in fact occurred.
2. The applicant claimed that Mr Ricci never explained what "grievous bodily harm" and "in company" meant which I find difficult to believe. He said that he wanted to find out what they meant by "Googling" them but when the first website he was directed to did not provide the answer he just gave up. He did not claim that he ever asked Mr Ricci to explain the terms.
3. The Court was taken to Markou v R, supra, for the purpose of providing a succinct summary of the meaning of "in company" as an element of a criminal offence. Mr Ricci indicated a confident and correct understanding of the principles. And, in my view, the element was clearly established in the applicant's version of events in the passages of his police interview quoted above (at [43]).
4. The submission of senior counsel for the applicant that the advice given by Mr Ricci was deficient in not referring to there being a potential issue about the Crown's ability to prove the "in company" element cannot be accepted. The submission was more concerned with the applicant having personal reasons for involving himself in the assault upon the victim which is irrelevant. The fact is, on his own admission, others were assaulting the victim and he joined in. No more was required. Any challenge to the Crown's ability to prove the element would have been futile, given that the applicant did not indicate to Mr Ricci at any stage that he resiled from what he had admitted.
5. The applicant has failed to establish that when he pleaded guilty, and adhered to his plea of guilty, he did not appreciate the nature of the charge; that he was not in possession of all of the relevant facts; that his plea was not attributable to a recognition of guilt; that there was something that adversely affected the integrity of the plea; or that the advice of his solicitor was in any relevant way at fault.
6. I would grant leave to appeal but only because the matter was fully argued; it was devoid of merit. I would otherwise dismiss the appeal.

Orders

1. I propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal dismissed.
2. BEECH-JONES J: Subject to what follows I agree with the reasons and orders proposed by R A Hulme J.
3. The written submissions filed on behalf of the applicant contended that his conviction amounts to a miscarriage of justice because he entered a plea of guilty to the offence of recklessly causing grievous bodily harm in company without him having provided his version of events to his legal representatives and without him having a proper understanding as to what "grievous bodily harm" or "in company" meant.
4. The evidence of the applicant's former solicitor, Mr Ricci, was to the effect that he discussed the version of the events given by the applicant to the police with the applicant in several conversations and that he explained the concept of grievous bodily harm to him. He also stated that he explained to the applicant that the "in company" element was made out by the applicant's admissions to the police which were to the effect that he "join[ed]" other persons in kicking the victim while he was on the ground. Having had the opportunity to view both the applicant and Mr Ricci give evidence and to consider their evidence having regard to the "contemporary materials, objectively established facts and the apparent logic of events" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ) I have no hesitation in accepting Mr Ricci's evidence to the extent that it conflicts with the evidence of the applicant.
5. Otherwise I agree with RA Hulme J that Mr Ricci was correct in his assessment that the "in company" element was made out by the applicant's admissions to the police in his interview and that Mr Ricci correctly understood the effect of the discussion of that element in Markou v R [2012] NSWCCA 64; 221 A Crim R 48 at [24] to [25]. Further my viewing of the CCTV footage of the incident does not suggest that the events in the nightclub did not transpire in the manner told by the applicant to the police and nothing in that footage warranted any reappraisal by Mr Ricci of the advice he gave to the applicant.
6. It follows that there is no basis for impugning the advice given to the applicant that lead to his entry of a plea of guilty and nor is there any basis for impugning that plea. No miscarriage of justice was occasioned by the applicant's conviction.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2015