11 The learned Judge either did not realize or ignored the fact that the applicant's version of the events was inconsistent with his plea of guilty. For a person to be guilty of a crime as an aider or abettor it is essential that he knew that the principal offender was committing or about to commit the crime with which he is charged. Blackmore v Linton [1961] VicRp 63; [1961] VR 374 at 377; R v Arnol [1980] Tas R 222 at 228-230; R. v Harding [1976] VicRp 11; [1976] VR 129 at 139, 145 and 160; Thomas v Lindop [1951] All ER 966 at 988; Smith v The Queen, CCA unreported 4/1979 per Nettlefold J at pp 28-33; Bradley v Lowe, Cox J, unreported 84/1982 at p3. The applicant's version of the facts as stated to the court demonstrated guilt as an accessory after the fact but not as a principal.

12 It is clear law that in the usual case of a conflict between facts asserted by the Crown and others asserted by the prisoner, following the making of a plea of guilty, if the disputed facts are material to the appropriate sentence to be imposed, evidence should be required by the judge to enable him to resolve the conflict (and see s386(10) of the Criminal Code). That is not however an appropriate course where the conflict goes to the guilt of the prisoner of the crime charged, for a plea of guilty stands for what it is, a confession of the crime charged and its essential elements.

13 The proper course to be adopted in cases such as this, is for the judge to inform the accused or his counsel that his factual assertions are inconsistent with his plea of guilty and that he should either apply to change his plea to one of not guilty or, if he wishes to adhere to his plea, he should clearly understand that any assertions inconsistent with an admission of guilt will be ignored. If the accused thereupon applies to change his plea leave will normally, but not necessarily, be given. If he persists with his plea of guilty he will rarely have a valid complaint to make subsequently. In this case no mention of such matters was made by the learned judge.

14 It was pointed out by Nettlefold J in Tracey v The Queen, CCA, unreported 38/1987 at pp2 and 3 that:

"It has been said that it requires a very strong case and exceptional circumstances before the court will interfere with a conviction on a plea of guilty. Normally, the court will not interfere where the accused has been represented by counsel. To hold the contrary would open the flood gates to appeals on the ground that persons were given advice which turned out unproductive of results for them (Pilkington v The Queen [1955] Tas SR 144 citing R v Lucas (1908) 1 Crim App R 61)".

15 See also Ansell v The Queen [1966] Tas SR 8 per Gibson J at p9. But not withstanding such statements, s402 (1) of the Criminal Code provides that an appeal shall be allowed if the court "is of opinion ... that on any ground whatsoever there was a miscarriage of justice ...". In Tracey v The Queen (supra) Nettlefold J went on to cite Gibson J in Ansell v The Queen (supra) as follows:

"But if the appellant can satisfy the court that he had been the victim of a miscarriage of Justice in any other way he is entitled to succeed on his appeal (Reg v Murphy [1965] VicRp 26; [1965] VR 187)".

"That passage is a recognition of the basic truth emphasised by Sholl J in Reg v Murphy (supra) that we cannot substitute for the plain and broad words of the statute granting the right of appeal a gloss from the cases; the text must have precedence over the gloss. (See also Vella (1984) 14 A Crim R 90 at 92; Chiton [1989] 1 NSWLR 218; Schneider No 1 (1981) 4 A Crim R 94). In Vella's case the court said:

'It is probably a mistake to attempt to define the circumstances in which such an appeal will be allowed, for it must be allowed whenever there has been a miscarriage of justice.'

In truth, what the cases do is to provide wise guidance, but not binding rules' as to how what is essentially in the nature of discretionary jurisdiction should be exercised. But, of course, once what appears to the court to be a sufficient ground of appeal emerges there is a mandatory obligation to allow the appeal once the opinion is formed that there was a miscarriage of justice.

The cases make it clear that it is for the applicant to persuade the court that he should be allowed to continue to agitate issues prima facie set at rest by his own plea of guilty (R v Stewart [1960] VicRp 16; [1960] VR 106 at 110; Murphy at p191; Vella (supra) at p95). The burden of showing a miscarriage of justice is a heavy one. Necessarily the occasions on which an appeal will be allowed where there has been a plea of guilty will be very rare (Vella at pp 92 and 95)".

16 The grounds of appeal are:

"1 That upon the admitted facts the Applicant could not in law have been convicted of the crime charged.

1A. That the learned trial Judge erred in that he failed to direct or advise that a plea of not guilty be entered.

2 That the Applicant did not appreciate the nature of the crime charged."

17 Grounds 1 and 2 appear to have been drawn from the following passage in the judgment of Avory J in R v Forde [1923] 2 KB 400 at p403: -

"A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged".

18 Cases were cited to this court as authority for the proposition that the learned Judge should have himself directed that a plea of not guilty be entered in place of the plea of guilty. There are a number of Queensland cases to this effect, In Murphy (1979) 1 A Crim R 398 circumstances occurred before a magistrate which caused Lucas J, with whom the other members of the Court of Criminal Appeal agreed, to say at p400:

"In my opinion, at that point the magistrate should have appreciated that she was not in fact admitting the elements of the offence with which she had been charged, and in accordance with the well settled procedure should at that point have vacated the plea of guilty and directed that the plea of not guilty be entered ... I am of the opinion that the magistrate was bound not to accept the plea of guilty given and to have directed a plea of not guilty to be entered in its place. In my opinion, therefore, the appeal should be allowed and the conviction should be quashed ...".

19 In R v The Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213 Andrews J, with whom the other members of the Full Court agreed, said at pp220 and 222:

"Once that occurred he was seen to have a defence, a plea of not guilty should have been recorded and the matter should then have gone to evidence ... He should in all the circumstances have been taken to be pleading not guilty".

20 In Bick v Morelli Ex parte Morelli; [1969] Qd R 94 at 98 Hart J said:

"It should be vacated immediately if anything arises during the hearing to cast doubt on the guilt of the accused".

21 In Cummins v Sharman; Ex parte Sharman, an unreported Queensland case (4574) cited in R v The Justices at Cloncurry; Ex parte Ryan (supra), Dunn J said that the magistrate had been in error in failing "to give Sharman an opportunity of changing his plea", which statement does not go as far as the others to which I have referred. In the same case, however, Hoare J said that "the plea of guilty was so qualified that the Magistrate lacked jurisdiction to convict and should have refused to do so". Hoare J also said:

"There are many reasons why a perfectly normal and rational person will prefer to plead guilty to some charge (for example some traffic. offences) rather than plead not guilty. Where there has been an intentional decision in this respect, generally speaking, an Appeal Court would refuse to interfere even though, for example, it was shown by indisputable proof that the defendant was not in fact guilty".

These comments should probably be interpreted as applying to a situation where the plea of guilty was not qualified by anything said by the accused to the court of first instance.

22 In R v Tatnell [1962] Qd R 11, Hanger J (with whom Mansfeld CJ agreed) referred to R v Golathan (1915) 11 CAR 79, R v Ingleson [1915] 1 KB 512 and R v Durham Quarter Sessions; Ex parte Virgo [1952] 2 QB 1 and said at p14:

"These cases seem to me ample authority for a proposition that, though the prisoner has in fact announced a plea of guilty to a charge, yet where he makes statements, at the time or before sentence, which show that his plea was intended to be an admission only of facts which would not be sufficient to substantiate the offence charged, or that he alleges facts which would amount to a defence to the charge, then in these circumstances he should be treated as pleading 'not guilty'."

23 This case was referred to by Gibbs J in R v Jerome & McMahon [1964] Qd R 595 at p603 with apparent approval. Gibbs J went on:

"It seems to me that it is in the interests of justice that where a prisoner in the one breath pleads guilty and makes it clear that he in fact denies the existence of a vital element of the offence charged against him the Judge should have power to direct a plea of not guilty to be entered notwithstanding that the accused, whether it be through lack of appreciation of the significance of what was going on, through sheer contumaciousness, or through a desire to achieve some technical advantage, adheres to his wish to enter a plea of guilty."

24 The power of a court to convert a plea of guilty into one of not guilty, without giving the accused the choice of whether he wishes to do so, appears to have been assumed in R v Durham Quarter Sessions; Ex parte Virgo [1952] 2 QB 1 in which a defendant pleaded guilty to a charge of stealing a bicycle but, after the prosecuting solicitor stated the facts, he was asked whether he had anything to say and he gave a version of facts consistent with innocence. The Justices thereupon sentenced him to six months imprisonment. On appeal Lord Goddard CJ, with whom the other members of the court agreed, said at p7:

"The present is not a case of a prisoner who has unequivocally pleaded guilty and then appeals on the ground that his plea was a mistake; it is a case in which the prisoner at the trial said: 'Guilty, but' and added a rider to his plea of guilty which showed that he was really pleading not guilty, and which ought to be interpreted by the court as a plea of not guilty.

We think that the court of summary Jurisdiction here ought to have entered a plea of not guilty, and then the case could have been tried".

With respect I consider it more accurate to say that the plea was in fact unequivocal and not one falling within the meaning of the expression a "Guilty, but" plea.

25 The difference between an equivocal and unequivocal plea of guilty was made clear in P. Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751. In that case there was an appeal from a conviction based on a plea of guilty made in an inferior court. O'Connor J, with whom the other members of the Divisional Court agreed, drew a clear distinction between a situation where a defendant pleads guilty but in the same breath qualifies that plea (for example, on a charge of handling stolen property a plea of "guilty but I did not know it was stolen", and a situation where there is an unequivocal plea of guilty, but something is said by or on behalf of the defendant sometime later, for example, during the plea in mitigation which is in conflict with the guilty plea. An equivocal plea of guilty is in reality not an admission of guilt at all. It is the well recognised "guilty but" plea consistent with innocence. But an unequivocal plea of guilty is what it appears to be and it is accepted by the court, which then proceeds to hear matters relevant to the matter of sentencing. O'Connor J said at p755:

"Once an unequivocal plea of guilty has been made, then the position is entirely different. From this stage forward until sentence has been passed the court has power to permit the plea of guilty to be changed to one of not guilty, but the exercise of this power is entirely a matter of discretion."

26 A case of an unequivocal plea of guilty later followed by a statement made by the prisoner in his plea in mitigation of sentence, which contained an assertion which was inconsistent with guilt, was The King v Ingleson [1915] 1 KB 512 in which Lord Coleridge J, on behalf of the Court of Criminal Appeal, held that the recorder's duty was to explain to the prisoner that his proper course was to plead not guilty and to have that plea entered. The prisoner was unrepresented.

27 A case of an equivocal plea was Rex v Martin (1904) 21 WN (NSW) 233 where the Judge suggested that a plea of not guilty should be entered but the accused declined the suggestion and insisted on pleading guilty. On appeal Owen J gave the judgment of the court in the course of which he said at p235:

"It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance".

That passage suggests that there is a power to direct a plea of not guilty to be entered in the particular circumstances mentioned.

28 Chambers J in R v Taylor [1969] Tas SR 1 said at p5 that he had no quarrel with R v Martin, but he did not think it applicable to the situation with which he was confronted. Taylor was indicted with infanticide and pleaded guilty. Chambers J questioned whether the three month old baby allegedly killed by the accused was a "newly born" child, as was required for infanticide. His Honour said at p7 that he would advise the accused to change her plea to not guilty. If she refused and persisted with her plea of guilty, "then I will formally indicate that I cannot accept the plea, that I do not intend to proceed to judgment and that the accused will forthwith be discharged so far as this particular indictment is concerned". He did not assert that he could force entry of a plea of not guilty against the wishes of the accused.

29 It is not necessary to decide whether or not a court has a power to direct a plea of not guilty, contrary to the wishes of the prisoner, following a plea of guilty. In this case the applicant was represented by counsel, and all that was necessary was for the learned Judge to say to counsel what I have stated should have been said. There are however, a number of authorities which support the view that there is no power to direct a change of plea. In Di Camillo v Wilcox [1964] WAR 44 the defendant pleaded guilty and in the plea in mitigation he, apparently unrepresented, gave a version of the facts possibly inconsistent with guilt. Hale J at p46 said that:

" ... a clear and unambiguous plea of guilty is an admission of all the facts essential to that of fence, and in law the magistrate is justified in convicting on that admission. The purpose of hearing a statement of the facts of the case after a plea of guilty is to assist in arriving at the appropriate penalty. If that statement indicates that the accused might not in truth be guilty it would be proper that he should be invited to withdraw his plea of guilty and instead to plead not guilty".

30 In Wilson v McCormack [1968] Tas SR 55 Chambers J held that a magistrate had no power to act contrary to the wishes of defendants by vacating pleas of guilty which they had made and which had been accepted by the court. He went on at p59:

"Circumstances may arise where it is the duty of a court to advise a defendant to change his plea from one of guilty to one of not guilty, eg, where the evidence indicates that no offence was committed. However, that was not this case ... In any event it is doubtful whether the learned magistrate could have gone any further than to advise a change of plea: R v Inglis [1917] VicLawRp 99; [1917] VLR 672."

See also Barry v Wright, Neasey J, unreported 89/1969 at p5.

31 The Criminal Court undoubtedly has a discretion whether to allow a change of plea on application made by the accused. Section 356 of the Criminal Code provides that an accused person may, by leave of the judge, at any time before sentence, withdraw a plea of guilty and plead not guilty.

32 In McNally (1954) 38 Cr App R 90 at p93, the Lord Chief Justice took the opportunity of stating:

" ... perfectly firmly what is the position with regard to a prisoner who desires to change his plea. If a prisoner has pleaded Guilty in circumstances from which the court can see that there is no question of mistake, the court is not bound to allow a prisoner to withdraw his plea. If certain grounds are shown or the court can see that there are sound grounds as for instance, where a prisoner has pleaded Guilty to a charge of receiving stolen goods and then says: 'I pleaded guilty and I received them, but I did not know they were stolen', then it becomes entirely a matter of discretion for the learned judge The Court desires to say this: The question whether a plea is to be withdrawn or not is entirely a matter for the learned judge. The Judge is not bound to allow it to be withdrawn. If he came to the conclusion that there was a question of mistake or misunderstanding or that it would be desirable on any ground that the prisoner should be allowed to join issue, no doubt he would allow him to do it".

See also Sagiv (1986) 22 A Crim R 73 at pp80 and 81; S v Manchester City Recorder [1969] 3 All ER 1230 at p1248 per Lord Upjohn.

33 The passage I have cited from the Lord Chief Justice's judgment presupposes an application by the prisoner to change his plea and deals with matters relevant to the exercise of the discretion of the judge when considering the application. In this case there was no application to change the plea and I will refer to two authorities where the duties of the judge in such circumstances were considered. In R v Inglis [1917] VicLawRp 99; [1917] VLR 672 at 675 Madden CJ said that a judge can advise the prisoner to withdraw his plea, but cannot compel him to do so. If he will not withdraw his plea, then it must be considered final. The Chief Justice continued:

"It is a matter of interest for every Judge who tries a prisoner to be as nearly sure as human prevision can make him that the prisoner shall fully understand the offence with which he is charged, and that he may not by mere accident or ignorance plead guilty to an offence of which, on investigation by a constituted tribunal, he might be acquitted".

34 After citing this passage, Hale J in Thomason v Martin [1964] WAR 136 said at p142:

" ... Hood and Cussen JJ, spoke to the same effect, and it is axiomatic that every court should to the best of its ability see that no man is convicted on a confession of guilt if there appears to be a defence worthy of investigation. On the other hand where a man of normal faculties hears a charge clearly read, and then pleads guilty, there must be a strong presumption that he has understood the charge and that he is in fact guilty: but I would not readily presume that he would be aware of a special statutory defence to the charge.

Clearly no rigid rules can be formulated, and every Judge and magistrate must exercise his discretion in each individual case as to whether any inquiry should be made from, or explanation given to, any individual accused, but in the present case I think that something more was called for than the mere acceptance of a plea of guilty".

35 There can be no doubt that the effect of an unequivocal plea of guilty is "a solemn confession of the ingredients of the crime" (R v Tonks [1963] VicRp 19; [1963] VR 121 at p127) and "an admission of all the facts essential to the offence" (Di Camillo v Wilcox [1964] WAR 44 at p46). But where events occur after the making of the plea and prior to the imposition of sentence, which should bring to the notice of the judge that the prisoner may not in fact intend to admit to all the essential ingredients of the crime, it is the duty of the judge to make inquiries and if necessary, to give advice, so as to ensure that the prisoner correctly understands the position, including the effect of the plea of guilty as an admission of all the essential ingredients of the crime if it is to remain and his right to seek, and perhaps the desirability of seeking, the exercise of the court's discretion to allow a change of plea. Because no such inquiries were made, and no such advice was given, there was a miscarriage of justice in this case. I do not say that in every case where facts are asserted on behalf of a prisoner which are inconsistent with the confession of guilt, the judge is obliged to allow a change of plea if an application is made. It is conceivable that it may appear that comprehensive and correct advice was given to the prisoner before he decided to plead guilty, or that he fully understood his position when he decided to plead guilty, and that in the particular circumstances of the case leave to change the plea should not be given. Each case will depend on its own circumstances.

36 For the reasons I have stated, grounds 1 and 1A of the notice of appeal were made out and because the learned judge did not make inquiries and ensure that the applicant correctly understood his position as far as his plea of guilty and the disputed facts were concerned, there was a miscarriage of justice.

37 In coming to my opinion in this case I have ignored the evidence which was presented to this Court. On the basis of what occurred in the court below the applicant was entitled to succeed because of a miscarriage of justice on the face of the proceedings. It was not necessary or in the interests of justice, that evidence be given of communications which passed between the applicant and his legal representative, nor that such evidence be subjected to cross-examination. However because of the way in which the appeal was conducted, and because of ground 2, such evidence was given. It strengthened my view that the appeal should succeed and I will refer to it.

38 Affidavits of the applicant and of Mr Stephenson who was his solicitor and counsel when he pleaded guilty, were read and both deponents were cross-examined. The evidence established that initially the applicant gave his solicitor false instructions that he had had nothing whatever to do with the crime and that he had witnesses who would support an alibi that he was at a house in High Street, Launceston at the time of its commission. Three days before the trial however, he realised that he would have considerable difficulty in maintaining that alibi and he asked Mr Stephenson for advice about changing to a defence that he was present at the scene of the crime, but did not know that Tanner was going to commit it. Because of ethical considerations Mr Stephenson indicated that the applicant would need to engage another counsel if he took that course. He also told the applicant why he thought that such a defence would probably fail on the facts, inter alia, because a false notice of alibi had already been given to the Crown. On the day before the due commencement of the trial, and at the courthouse before his plea was taken, he told Mr Stephenson of the version of the facts concerning the crime which was stated to the court by Mr Stephenson following the plea of guilty. He said to Mr Stephenson that he wished to plead guilty, but at the same time he gave instructions that the court should be told that he had not known that Tony Tanner intended to commit the crime on the day in question, and that he had driven Tanner to the scene "to have a look". He told Mr Stephenson that he wanted to get the matter over and done with "because it had been hanging around for so long". Mr Stephenson's evidence was that he advised the applicant "that the plea in mitigation virtually amounted to a defence", "that the facts in mitigation were tantamount to a defence", and:

"I expressed my concern that the Applicant's instructions could almost amount to a defence to the charge, particularly that he was saying that he did not know the crime was to be committed that day. I can recall at one stage saying that I could make a fool of myself if I presented those facts to the Court on a plea of guilty. I was concerned that the plea was inconsistent with the facts I was being instructed to put".

39 From the evidence of Mr Stephenson it can be seen that the applicant was not advised that the facts he was asserting, if sufficiently established to the satisfaction of a jury, would have enabled him to successfully defend the charge. Mr Stephenson told him only that the facts "virtually amounted to a defence", that they were "tantamount to a defence" and that they "could almost amount to a defence to the charge". Mr Stephenson agreed that he did not go on to explain to the applicant what he meant, he did not explain to him the ingredients of the crime of stealing or the basis upon which he would be guilty of stealing and he did not give the applicant any advice explaining that on those facts he would have been guilty of being an accessory after the fact but not as a principal of the crime. In his affidavit the applicant stated that he pleaded guilty to the charge of stealing because:

"I thought that being in the carpark and driving Tanner away made me guilty even though I thought that he was not going to try and steal any money at that time and that I had no idea he would even think about doing it then".

40 More appropriate advice from his counsel would have been that his factual version amounted to a defence, that if he wished to assert those facts he should plead not guilty, and that if he insisted on pleading guilty those facts could not be stated to the court in mitigation of penalty or, if they were stated, he should expect that the learned judge would ignore them. No such advice was given by counsel and the factual conflict passed by the learned judge without such matters being made clear to the applicant.

41 It is not necessary to consider ground 2. In a case where it should not have been apparent to the Judge that the prisoner did not intend to admit to all the essential ingredients of the crime charged, but following sentence the prisoner appealed against his conviction it might be appropriate for this court to make a decision, after hearing evidence, whether or not the prisoner appreciated the nature, that is the essential elements, of the crime charged when he made his plea. This is not such a case.

42 For the above reasons I agreed that insofar as leave to appeal was required it should have been granted and the appeal should have been allowed.