Leave to appealentry of plea on solicitor's advice
Judgment (7 paragraphs)
[1]
Judgment ON APPLICATION
By his Notice of Motion filed on 13 March 2020, the applicant seeks the following relief which was amended by consent at the hearing on 1 June 2020:
1. Pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 ("the Appeal Act"), leave to appeal be granted.
2. Leave be granted to the appellant to change his plea to not guilty.
3. The conviction ordered by the Local Court of NSW on 30 October 2019 be set aside.
4. Pursuant to s 20(1)(c) of the Appeal Act, the proceedings be remitted to the Local Court of NSW for hearing.
The applicant relied on an affidavit sworn by himself on 21 February 2020, in which was exhibited a number of documents in a folder marked exhibit "DJF-1". Those exhibits will be referred to by their tab numbers, 1.1 to 1.21.
In his affidavit, the applicant deposed to his family background, and to the circumstances concerning an incident in the early hours of 21 June 2019 when he was working as a security officer at the Harlequin Inn Hotel in Pyrmont. In the course of his employment he was required to remove a patron from those premises. After a number of punches were thrown at him by the inebriated patron, he threw a punch at the patron, causing that person to fall to the ground.
After the patron was removed, the applicant completed an entry in the daily running sheet/incident log, which outlined that he punched the patron in self‑defence.
Sometime after the patron was removed, he returned to the premises armed with an iron bar. Police attended and spoke, inter alia, to the applicant, who provided a handwritten statement to the police officer in his notebook.
The applicant deposed that shortly before 22 July 2019 he received a telephone call from the investigating police officer asking him to attend the police station to talk about the events that occurred on the night of 21 June 2019. The applicant agreed and attended the police station on 22 July 2019. He did not seek legal advice, as he believed he would be asked questions about the conduct of the patron, and he did not believe that he had done anything wrong. Upon arrival at the police station, the applicant was informed that he was going to be charged with assault, and was asked to participate in an electronically recorded interview.
The ERISP became Ex DJF 1.4. In the interview which lasted for some 50 minutes, the applicant set out in detail what he did, consistent with his stated belief at the time that he was acting in self‑defence.
Following the ERISP interview, the applicant was not charged, however, he sought legal advice from Ms T Cameron, solicitor. He met her on 26 July 2019 for approximately 30 minutes and gave her a copy of the disc which contained his ERISP interview. She did not play the recording during that meeting. By letter dated 26 July 2019, Ms Armstrong wrote to the applicant, noting that he had yet to be charged. She confirmed his instructions to enter a plea of not guilty to a charge of common assault, with a view to raising self‑defence at the defendant's hearing. The letter went on to state that when he had been served with the brief of evidence, she would discuss it with him and provide advice about the strengths and weaknesses of the prosecution case. It foreshadowed that the solicitors would also discuss whether he should maintain his plea of not guilty or consider entering a plea of guilty, based on the evidence that was served.
The letter then asked the applicant to provide character references and enclosed a fees agreement.
On 16 August 2019 the applicant deposed that Ms Cameron advised him that she would arrange with the police to see the CCTV footage from the hotel and that there was no need for him to be present. At that time, a Court Attendance Notice and a Facts Sheet (Ex DJF 1.19) had been served by the police. The facts contained the following, after setting out some detail of the conduct of the patron:
"The Victim stood his ground for approximately four (4) seconds with his hand down by his side no longer making a threat of himself. The accused, without warning, launched forward with a closed right fist striking the victim to the head with significant force, knocking the victim to the ground."
By email dated 20 August 2019, the applicant attached a document setting out matters he believed to be inaccurate in the facts sheet (Ex DJF 1.10). That document set out in detail the various interactions between the patron and the applicant in the course of the applicant endeavouring to eject the patron from the premises on the basis that he was intoxicated, using obscene language and smoking in the premises when not permitted to do so.
On 22 August 2019, Ms Cameron advised by email that she had viewed the CCTV footage with the investigating police officer and set out her advice. She noted that the patron had resisted the applicant's efforts to make him leave the premises and prior to the applicant punching the patron, the patron had assaulted him. However, she saw some difficulties in raising self-defence as follows:
"4 While a Magistrate may find you not guilty, there is a significant possibility that they would find you guilty. The penalty after being found guilty is more likely to be harsher;
5 A Magistrate may find you not guilty and accept our argument, in combination with [the patron's] previous actions of pushing you and attempting to strike you, as well as anything which was said, that you were indeed acting in self‑defence when you struck him;
6 However, I'm of the view it is more likely that the Magistrate will find that either what you did was excessive self-defence, or that, technically it was not in self-defence and amounted to an assault;
7 This is because, in the 3-4 seconds prior to the punch, [the patron] is standing in front of you with his hands by his side. While it is clear something is being said, it does not appear it is with the same level of aggression as shown earlier."
Ms Cameron went on to advise that the applicant should consider giving evidence if he entered a plea of not guilty. She then advised as follows:
"9 … my advice is that you give thought to whether you may wish to enter a plea of guilty common assault, on amended facts. If you choose this course, I think it is likely that the court will deal with you by way of a non-conviction Conditional Release Order (a non-conviction bond).
10 There would still be a 'finding of guilt'. However, I think this route is mostly likely to give you the best chance of obtaining your main goal, being remaining conviction free.
11 I'm of the view that there is at least a 50/50 chance that a plea of not guilty will result in you being found guilty. Without the discount for your plea of guilty, as well as remorse etc, your chances of avoiding a conviction are less.
Please let me know whether you'd like to come in to discuss the above as well as how you wish to proceed."
Ms Cameron went on to state that if the applicant wished to plead guilty, she suggested she negotiate with police to amend the facts.
On 27 August 2019 the solicitor sent the applicant the proposed facts, to which he agreed on 29 August 2019.
On 27 August 2019 Ms Cameron wrote to the police confirming a plea of guilty would be entered to the offence of common assault on 25 September 2019 and sought amendments to the police facts as previously advised.
On 25 September 2019 a plea of guilty was entered to the charge of common assault and the matter was adjourned to allow police to consider the representations made on behalf of the applicant to amend the facts. The matter was adjourned to 30 October 2019 for sentence.
The applicant deposed that when he met Ms Cameron on 27 August 2019 to discuss the advice she had provided in her email of 22 August 2019, they met for 30 minutes and did not view the CCTV footage together, nor did they listen to or discuss the audio recording of the ERISP interview. Ms Cameron did not ask him for the incident log and he did not give that to her.
The applicant deposed that during that meeting Ms Cameron advised him as follows:
"I believe there will be a 50% chance of being found guilty if we run the case of self-defence. If you plead guilty to the charge, I estimate the chances of receiving a non-conviction to the charge will be 90%."
The applicant deposed that he decided to accept Ms Cameron's advice as he was scared of losing his employment and source of income.
On 30 October 2019 the applicant attended with his father at the Downing Centre Local Court. During the morning, Ms Cameron advised him that the police had included most of the amendments to the facts that she had proposed. It included an amendment to the paragraph set out in [10] above, as follows:
"The victim stood his ground for approximately 3 seconds with his hands down by his side. The accused stepped forward with a closed right fist striking the victim to the head, knocking the victim to the ground."
The facts included a statement which had previously been included, "the accused made further admissions to the assault but claimed that it was in self‑defence".
Ms Cameron advised the applicant that he could reject the amendments or go with them, but if he did not accept them, the case may drag on for months.
The applicant deposed that he felt extremely rushed and pressured, but did not say anything to the solicitor about that. He deposed,
"Instead, feeling extremely stressed, I told Cameron that we would proceed on that day and she wrote a statement on the charge sheet which I then signed and dated."
The charge sheet became Ex DJF-1.19.
The applicant also relied on an affidavit of Mr Andrew Herring, solicitor, sworn on 13 March 2020. Mr Herring deposed that he was accredited by the NSW Law Society as a specialist in advocacy in 2008, and had maintained that accreditation, and further, that the opinions he expressed were wholly or substantially based on his specialised knowledge held as a result of his experience as a solicitor. The Crown objected to the whole of Mr Herring's affidavit on the basis that it was not certified as expert evidence pursuant to s 177 of the Evidence Act 1995, nor was there any acknowledgement of the expert witness Code of Conduct contained in the District Court Rules.
The Crown further submitted that the evidence should be excluded pursuant to s 135 or s 137 of the Evidence Act 1995.
The Crown submitted that Mr Herring's affidavit highlighted the competing duties he had to his client and to the court. His evidence was inadmissible as to the key issue here, namely, the integrity of the plea of guilty entered by the applicant and whether any miscarriage of justice had occurred. The Crown referred to authorities to the effect that when relied upon, lack of care of a legal adviser in entering a plea must be established to a high degree, namely, must involve either impropriety or incompetence. The affidavit, however, was couched in terms of what the Crown characterised as "an artificial scale of due care and attention required".
The Crown submitted that the applicant here had sought, by entering his plea of guilty, to avoid a conviction. This undermined the utility of any expert opinion as to what his solicitor did or did not do. The Crown relied on O'Brien v Gillespie & Ors (1997) 41 NSWLR 549 to submit that the evidence should be excluded pursuant to s 135 of the Evidence Act, either pursuant to s 135(b) as being misleading or confusing because it applied the wrong test, or pursuant to s 135(c) as being a waste of time.
The applicant submitted that compliance with the expert witness code does not apply here and that a certificate under s 177 is a mechanism, not a prerequisite for admissibility. As a solicitor, Mr Herring's paramount duty is to the court, which must override his duty to his client. Moreover, he did not express any opinion as to the ultimate issue, but rather, relevantly set out steps that were available for the applicant's former solicitor to take, which it would be submitted she should have taken. In those circumstances, the evidence should not be excluded pursuant to s 135 or s 137.
I provisionally allowed the applicant to adduce the evidence in Mr Herring's affidavit, subject to having the opportunity to peruse the authorities relied on by the Crown. Having done so, I accept the submissions made on behalf of the applicant, that compliance with the expert witness Code of Conduct does not determine admissibility of the expert's evidence, and that a certificate pursuant to s 177 is not a prerequisite to admissibility. Part 31 r 23 of the Uniform Civil Procedure Rules provides that an expert's report may not be admitted in evidence and that oral evidence may not be received from an expert witness in the absence of acknowledgement by the witness of the Code of Conduct. However, the requirement is discretionary, "unless the court otherwise orders". That discretion must be exercised judicially, however, it is not necessary to demonstrate "exceptional circumstances". Here, where Mr Herring is an officer of the court and an accredited specialist, there is no conflict between his duty to the court and his duty to his client, the applicant. I further find that s 177 of the Evidence Act 1995 merely provides a mechanism for adducing expert evidence by way of a certificate. By virtue of s 177(5) an opposing party may require the expert to be called to give evidence and be cross-examined.
In O'Brien v Gillespie, supra, relied on by the Crown, Levine J held that evidence of a solicitor, relied on by the plaintiff in a claim against her former solicitors, providing evidence on the question of the existence of a retainer and secondly, the existence of a duty of care owed by those solicitors, was inadmissible pursuant to s 79 of the Evidence Act. His Honour referred to the judgment of Deane J in Hawkins v Clayton (1988) 164 CLR 359 at 579, and to a decision of Hodgson J in Rabelais Pty Limited v Cameron, unreported 8 February 1993, in which evidence of the same kind was admitted. In that case, Hodgson J had referred to the judgment of Priestley JA in ULV Pty Limited v Scott (1990)19 NSWLR 190, where his Honour said:
" … an expert witness who is a doctor (or a solicitor) may be qualified to give an opinion as to what a reasonably competent careful doctor (or solicitor) would do in specified circumstances. Whether or not the court accepts this opinion, and whether or not it regards this as the appropriate measure of the duty, will be a matter for the Court."
Further, the Crown has conceded that evidence may be adduced as to the ultimate issue pursuant to s 80 of the Evidence Act 1995.
I find that Mr Herring's evidence is given applying his specialised knowledge as a solicitor and an accredited specialist solicitor in advocacy. I further find that the opinion is based wholly or substantially on his specialised knowledge and is therefore admissible pursuant to s 79 of the Evidence Act 1995 - see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.
In his affidavit, Mr Herring set out what Ms Cameron should have done to properly advise the applicant regarding his prospects of successfully raising self-defence to the charge of common assault. In Mr Herring's opinion, three pieces of evidence were critical to an evaluation of the applicant's prospects of raising self-defence and therefore the advice, namely:
"(a) The ERISP conducted by police on 22 July 2019.
(b) The available CCTV footage of the incident, and
(c) The incident log prepared by the applicant on the evening of the incident."
Mr Herring deposed that Ms Cameron did not review the ERISP interview which was 50 minutes duration. She did review the CCTV footage, but did so in the absence of the applicant. In his ERISP interview, the applicant had explained that the available CCTV footage did not show the conduct of the parties immediately prior to the alleged assault. Ms Cameron provided her advice absent any explanation from the applicant as to what is shown on the CCTV footage. It was Mr Herring's opinion that she was not able to properly advise the applicant about the effect that this footage would have had in the determination of his guilt for the offence charged. This meant that the applicant's solicitor was not in a position to properly advise him in relation to the prospects of successfully raising self-defence and she failed to properly do so. Mr Herring went on to opine that, in his opinion, the applicant had good prospects of successfully defending the charge on the basis that he was acting in self-defence.
Mr Herring was not required for cross-examination.
The applicant was required for cross-examination and he confirmed that he first met Ms Cameron on 21 July 2019 at a time when he had not been charged, but knew that it was likely that he would be charged with assault. He was shown the copy of the Court Attendance Notice, which he signed on 30 October 2019, with his written instructions to his solicitor to proceed with the plea of guilty. The document was tendered as Ex A, but was, in any event, in evidence as Ex DJF-1.19. The applicant conceded that he understood by signing the document of his own free will, he understood the options then available to him.
Having received the Court Attendance Notice on 16 August 2019, the applicant conceded that he was advised by his solicitor after she had viewed the CCTV footage. It was put to him that she had stated that he had an 80 to 90% chance of non-conviction if he pleaded guilty to the charge. He disagreed saying it was his belief that he was told 90%.
The applicant conceded that he was concerned at that time, having just commenced his employment with Colonial First State in July 2019, what impact a conviction may have on that employment. He also conceded that he signed Ex A because he believed at the time that by entering a plea of guilty he had better odds at receiving a non-conviction, it would be quicker and cheaper if he entered a plea of guilty.
In re-examination the applicant gave evidence that he relied on Ms Cameron's advice contained in her email dated 22 August 2019, to change his instructions to defend the charge, relying on a defence of self-defence, to a plea of guilty because of the high percentage of him obtaining a penalty involving a non-conviction order if he entered a plea of guilty.
[2]
The Crown case
The Crown relied on an affidavit of Ms Trudie Cameron, affirmed on 16 April 2020. Ms Cameron deposed that she agreed with the content of the applicant's affidavit from [22] to [48] inclusive, however, she set out matters where she disagreed with the content, or included further relevant material.
Ms Cameron deposed as to the first conference she held with the applicant on 26 July 2019 and confirmed that she was instructed on that occasion that the applicant wished to plead not guilty and raise self-defence.
Ms Cameron did not agree that she advised the applicant that if he were to plead guilty to the charge, her estimate of his chances of receiving a non‑conviction for the charge would be 90%. She advised the applicant that if he chose to plead guilty and the police agreed to amend the facts as they were requested, it was her view that a conditional release order without conviction was the likely outcome. When asked to give a percentage likelihood, she had said, "80 to 90% before warning him that there were no guarantees".
Ms Cameron deposed that she explained to the applicant that the CCTV footage did not entirely accord with his instructions, that the victim had tried to hit him and that in response he had leaned forward and punched the patron. She explained that after watching the footage she was not entirely confident that self-defence would be raised successfully.
Ms Cameron deposed that she explained that raising self-defence may be successful, however, her advice was that his prospects of successfully defending the matter were no better than "50/50".
Ms Cameron deposed that she explained various penalties that may be available to the applicant and that an assault involving a punch to the head was a serious example of violence, which is usually treated seriously by the courts. In the circumstances, she deposed that she advised that he had a good chance of receiving a conditional release order and she disagreed that she advised him he had good prospects of achieving a s 10 bond.
Ms Cameron also deposed that she could recall advising the applicant that he could think about her advice before making a decision, as court was not until 25 September 2019. The applicant had indicated that he thought it was better to plead guilty and aim for a non-conviction, and provided those instructions.
Ms Cameron set out in some detail what occurred on 30 October 2019 at the Local Court. She explained to the applicant that his options were to proceed to sentence that day on the amended facts, seek a short adjournment to consider his position, or indicate the facts were not agreed, at which time the court would likely set the matter down for a contested facts hearing. She agreed, having gone through the amended facts, that she said words to the effect of, "this is about as good as you're going to get", however, she qualified that by saying "today". Ms Cameron deposed that she reiterated advice previously given to the applicant in conference as to the seriousness of the assault, and further deposed that she was instructed that the applicant wished to proceed to sentence and that he stated he "wanted to get it over with".
Ms Cameron attached what she described as "non-exhaustive notes" of the conferences of 26 July and 27 August 2019, and further deposed that at no time did the applicant tell her that he had prepared an incident log at the time of the incident. She did not depose that she had, at any time, viewed the applicant's ERISP or obtained a transcript of it. She was not required for cross-examination.
[3]
The applicant's submissions
Learned Counsel for the applicant provided a written outline of submissions which set out relevant principles to be applied in determining whether the court should allow a plea of guilty to be withdrawn and conviction set aside. In Wong v DPP (NSW) (2005) 155 A Crim R 37, Howie J had stated that:
"The issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea to convict and sentence the defendant."
In Maxwell v R (1996) 184 CLR 501, Dawson and McHugh JJ said:
"The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage."
It is clear that the categories of cases in which leave will be granted to withdraw a plea of guilty are not fixed or closed - see Turner v Wheeler [2016] NSWSC 345 per Campbell J at [26].
The applicant submitted that Ms Cameron did not await receipt of the brief of evidence to advise the applicant on prospects of successfully defending the charge. Had she done so, and undertaken the assessment that Mr Herring had opined was required, her advice would have been the same as the opinion of Mr Herring, namely, that the applicant had good prospects of successfully defending the charge on the basis that he was acting in self‑defence, if given the opportunity to do so.
The applicant submitted that Ms Cameron's advice appeared to be based primarily upon the period of time between the last physical act of the patron and the blow being struck by the applicant, of approximately four seconds. It was therefore significant that she did not at any stage review this footage with the benefit of concurrent instructions from the applicant. The applicant's explanation for what occurred, and what is shown on the CCTV footage, was set out in the ERISP interview (see Q's 52, 56, 78, 79 and the answers thereto).
It was submitted that in the absence of these crucial instructions, Ms Cameron proceeded to advise the applicant on his likelihood of success. It was clear that a key factor in deciding what plea to enter for the applicant was the likelihood of conviction and the impact that that would have upon his recently obtained employment. Further, the applicant explained that it was because of the solicitor advising him that his prospects of obtaining a conditional release order without conviction were 80 to 90%, before warning him that there were no guarantees, that he instructed her to enter his plea of guilty. That plea, it was submitted, was entered in circumstances where he was given incomplete and therefore mistaken advice. The plea was therefore not entered as a true consciousness of guilt, rather, it was entered upon an incorrect assessment of the appellant's prospects of defending the charge as against avoiding a conviction via a plea of guilty. In those circumstances it would be a miscarriage of justice to allow the conviction to stand.
In his oral submissions, learned counsel rehearsed those submissions and highlighted those parts of the ERISP interview which were helpful to discern the prospects of the applicant succeeding on a defence of self-defence. Ms Cameron had taken no instructions as to what had happened off-screen, namely, what the CCTV did not show. Nor had she gone through the ERISP interview with the applicant. It was submitted that the error in her advice was therefore a failure to look at the matter in complete context of all of the evidence. No attempt was made by the solicitor to understand what was in the applicant's mind at the time, which was relevant to an assessment of self‑defence. Rather, the solicitor was focussed on the three to four seconds where the patron had his hands down, prior to which, the applicant punched the patron in the head. It was submitted that had she acted in the manner outlined by Mr Herring, it may well have been that her advice would have been different. Further, from the outset, the applicant had instructed her to enter a plea of not guilty and raise self-defence. There was no evidence that she had taken instructions on the mental element involved in raising that defence.
Learned Counsel highlighted the solicitor's email of 22 August 2019, in which she stated there was a "significant possibility that he would be found guilty". It was submitted that advice was mistaken, and had Ms Cameron taken the steps set out above, she would not have given that advice. In those circumstances, a miscarriage of justice had occurred. Ms Cameron's advice was flawed and the applicant's plea of guilty was entered on a mistaken belief. As the applicant had said in re-examination, her advice had a significant effect on his decision to enter a plea of guilty.
[4]
The Crown submissions
The Crown also relied on a thorough detailed written outline of submissions, which set out the principles of law governing an application to reverse a plea of guilty. The principles were conveniently summarised in Kanakaradnam v R [2018] NSWCCA 282 at [17] - [19] by Johnson J (with whom Simpson AJA and M Adams J agreed). Those principles include that the ultimate question for the court is whether it has been demonstrated that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea. The onus is on the applicant to establish a good and substantial reason for the granting of leave, and such an application is to be approached by the court with caution, bordering on circumspection. Further, simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty, even if others might disagree with that advice. The focus in such a case is whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interest. In Wong v DPP, supra, it was held that a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it (at [37]).
The Crown highlighted the evidence as to the advice given by Ms Cameron to the applicant and the fact that she emphasised that there were no guarantees of a non-conviction following a plea of guilty due to the nature of the assault. Further, the applicant had time to think about his instructions before he made a decision and was advised that Ms Cameron would seek to negotiate the facts. The Crown relied on the circumstances in which Ms Cameron gave the applicant advice at court on 30 October 2019 and he gave her written instructions to proceed to enter the plea of guilty, and had acknowledged that he wanted to "get it over with".
The Crown submitted that this is not a case where the applicant was coerced by his lawyer or wrongly advised. Rather, the applicant simply wanted to get it over and was hoping he would be dealt with without the court proceeding to a conviction. He knew there were no guarantees that that would happen. Having been convicted, it was submitted that the applicant now regrets taking the course he did and the fact that he maintains his innocence to the offence does not found a good and substantial reason for granting the application. The Crown submitted that what occurred does not amount to a miscarriage of justice in the circumstances and the application must be refused.
In his oral submissions the Crown referred to Ex DJF-1.9, which set out the facts sheet inaccuracies compiled by the applicant which put Ms Cameron on notice of all of the matters upon which the applicant relied. It was submitted that she was virtually in the same position had she attended to the three matters highlighted by Mr Herring as omissions in her preparation prior to advising the applicant. It was submitted she therefore had a solid legal basis to provide the advice she provided on 22 August 2019.
It was submitted that the fact that Ms Cameron did not view the CCTV footage with the applicant does not demonstrate incompetence by the solicitor. It was clear that the applicant wanted to avoid a conviction and that he made an informed choice to enter a plea of guilty as the shortest, cheapest and best route for him to obtain a non-conviction order. The applicant had not submitted that the advice given to him was incorrect, and therefore the integrity of the plea was not undermined. The Crown submitted that the applicant had not established a mistake in the provision of legal advice and had certainly not established a miscarriage of justice. Further, the Crown emphasised the need for the approach to such applications as being cautious, and the need for finality in litigation.
In reply, Counsel for the Applicant submitted that by providing the list of inaccuracies in the police facts, the applicant was not providing instructions to his solicitor, as evidenced in his email dated 20 August 2019.
[5]
Determination
The principles to be applied on an application to reverse a plea of guilty are well settled, however, the categories are not closed, nor could they be. Nor can the matter be determined with the benefit of hindsight. Rather, the ultimate question is whether the applicant has demonstrated, to the required standard, that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea.
In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at [157], Dawson J said:
"An accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily, that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it, or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside."
Here, the following facts are established on the evidence:
1. Following the incident where an inebriated, abusive patron was removed from the hotel premises, the applicant entered details of what had occurred in the incident log, in which he recorded that he had punched the patron in self-defence.
2. Subsequent events involving the patron returning to the premises meant that police attended and took a statement from the applicant.
3. The applicant was subsequently requested by police to attend at a police station to discuss the matter.
4. The applicant attended the police station, believing he was there to provide a statement concerning the patron's conduct and believing he had done nothing wrong.
5. The applicant was advised by police that he was to be charged and requested him to undergo an electronic interview, in which he gave ample information to the police to the effect that he had acted in self‑defence when he punched the patron.
6. The applicant was not charged but sought legal advice. At the first meeting with his solicitor she was instructed that he wished to plead not guilty and to raise a defence of self-defence.
7. Subsequently, the applicant was served with a Court Attendance Notice and a Statement of Facts prepared by the police. Having received those facts, the applicant forwarded to his solicitor a document outlining numerous inaccuracies contained in those facts.
8. His solicitor made arrangements with the police to view the CCTV footage from the hotel, which was incomplete, and advised the applicant that it was unnecessary for him to view it with her.
9. Based on that viewing of the CCTV footage, and without viewing the ERISP, the solicitor proceeded to advise the applicant that she foresaw difficulties in raising self-defence and that there was a significant possibility that he would be found guilty, in which case the penalty was more likely to be "harsher". She advised that there was
"At least a 50/50 chance that a plea of not guilty will result in him being found guilty". Without the discount for your plea of guilty as well as remorse etc, your chances of avoiding a conviction are less."
1. Thereafter, the solicitor sought to negotiate an amended Statement of Facts and was only partly successful in doing so. Relevantly, as set out above, the amendments to the facts did not ameliorate the circumstances in which the applicant struck the patron, nor did it explain what had occurred beforehand, so as to benefit the applicant.
2. That advice was provided on 22 August 2019 and was discussed by the applicant and Ms Cameron on 27 August 2019, when the applicant indicated he would enter a plea of guilty.
3. The plea of guilty was confirmed to police by the letter forwarded by Ms Cameron on 27 August 2019, subject to police agreeing to the amendments proposed.
4. On 25 September 2019 the matter was stood over for hearing on 30 October 2019 in the Local Court, subject to police agreement to the amendments.
5. On 30 October 2019, partial agreement was reached concerning the amendments and the applicant confirmed in writing that he understood the matter could proceed to sentence that day on the facts proposed, or go to a contested facts hearing. He instructed his solicitor in writing to finalise the matters and confirmed that he signed the instructions "on his own free will and that he understood his options and had no further questions".
The application should be approached with caution and circumspection. Having changed his initial instructions to defend the charge on 27 August 2019, the applicant had, not only from that time until 25 September, but up until 30 October 2019, the opportunity to change his instructions back to enter a plea of not guilty to the charge. However, throughout that period he was relying on the advice of Ms Cameron provided by email on 22 August 2019, which was based on her viewing of the CCTV footage.
I accept the evidence of Ms Cameron that in her initial interview with the applicant, she did not ask him about the record of interview. I further accept that she asked the applicant whether the version he gave to police in the interview was in essence the same as the version he had provided to her, and that the applicant had told her it was. I also accept that she advised the applicant that once she had received the brief of evidence she would review it and provide him with further advice about whether he should maintain his plea of not guilty or enter a plea of guilty and/or seek to negotiate the facts. That, however, did not occur, and I find that the advice provided on 22 August 2019 was provided without Ms Cameron listening to the audio recording of the ERISP interview, or obtaining a transcript of it. Nor did she at any time obtain instructions relating to the incident log.
Section 418(1) of the Crimes Act 1900 provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out the circumstances where self-defence is available, and s 419 provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. It is therefore for the Crown to eliminate self‑defence as an issue by proving, beyond reasonable doubt, that the accused's act was not done in self-defence. The Crown may do this by proving, beyond reasonable doubt, either:
1. The accused did not believe at the time of the act that it was necessary to do what he or she did in order to defend himself or herself; or
2. The accused's act was not a reasonable response in the circumstances as he or she perceived them.
In determining the issue of whether the accused personally believed that his or her conduct was necessary for self-defence, the court must consider the circumstances as the accused perceived them to be at the time. If the Crown fails to prove either of the elements set out in (a) or (b) above, it will fail to eliminate self-defence. In determining these issues, the court will have regard to the whole of the circumstances surrounding the alleged conduct and in particular, evidence regarding the accused's belief at the time that it was necessary to do what he did to defend himself and whether the accused's act was a reasonable response in the circumstances as he perceived them. These were critical issues to be considered by the solicitor, having regard to the whole of the available evidence, in advising the applicant.
I reject the submission made by the Crown that having reviewed the facts sheet inaccuracies compiled by the applicant (Ex DJF-1.9), Ms Cameron was "virtually in the same position had she attended to the three matters highlighted by Mr Herring as omissions in her preparation prior to advising the applicant", and therefore she had a "solid legal basis to provide the advice she provided on 22 August 2019". Without a close regard to the applicant's ERISP interview and the explanation he provided to police at that time, supported as it was by the incident log filled out contemporaneously by him, the solicitor was not in a position to provide cogent advice to her client based on all of the readily available evidence.
The advice provided by Ms Cameron on 22 August 2019 was therefore flawed in all of the circumstances because the ERISP interview contained a great deal of detail in the paragraphs referred to above, that would found a defence of self-defence. So too would the incident log which Ms Cameron never had the advantage of seeing, however, she did not discuss its existence with her client.
Without that material, which was readily available, the advice, to the effect that there was a significant possibility that the applicant would be found guilty, and that his prospects of success were no more than "50/50" was therefore seriously flawed in that it was given in the absence of readily available evidence which would suggest otherwise. For example, at Q66 to Q80 of his ERISP, the applicant provides a detailed explanation of his conduct during the confrontation with the patron, including what was occurring during the three to four second period prior to the applicant striking the patron. In so finding, I am not in any way prognosticating the outcome of proceedings if the defence had been raised. However, it means that the advice given, albeit with good intention, was seriously flawed.
Further, the factual issue as to whether the applicant was told his prospects of obtaining a sentence without conviction involved a 90% chance, or a "80 to 90% chance", and that there were "no guarantees", does not ameliorate the flawed advice. Either way, to a lay person those prospects indicated a good chance of obtaining the result he wanted, compared to a significant possibility that he would be found guilty and convicted.
Having regard to the evidence that was available and notwithstanding that the applicant gave his solicitor written instructions, "on his own free will", to enter a plea of guilty, he did so on the basis of advice that was seriously flawed, and remained flawed up until the date of his conviction on 30 October 2019.
For those reasons, I find that in all of the circumstances, a miscarriage of justice will occur if the conviction is allowed to stand. In the interests of justice, I therefore propose to make the orders sought in the applicant's Notice of Motion.
[6]
Orders
I make the following orders:
1. Pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001, I grant leave to the applicant to appeal.
2. Leave is granted to the applicant to change his plea to not guilty.
3. The conviction entered in the Local Court of NSW on 30 October 2019 is set aside.
4. Pursuant to s 20(1)(c) of the Appeal Act, the proceedings are remitted to the Local Court of NSW for hearing.
5. I further direct that the Registrar of the Local Court list the matter for mention only on Monday 22/6/20 at the Downing Centre Local Court at 9.30am.
[7]
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Decision last updated: 05 June 2020