On 24/8/20, the appellant Ms Li was convicted in the Local Court of 3 offences.
One of the offences was that of fail to appear at Court on 4 February 2020.
The other 2 offences arose out of a relationship which existed at one time between the appellant and a man named Norman Reid. The first of those offences relates to an alleged assault on Mr Reid's wife on 11/11/18, when the appellant allegedly attended the residence of Mr Reid and his wife, and assaulted Mrs Reid when she opened the door. The second offence is alleged to have occurred on 14/2/19, when the appellant was at Mr Reid's residence, and Mrs Reid (who it appears was not living at that address at that time) attended the address. On this occasion it is alleged that the appellant breached an Apprehended Domestic Violence Order that was in place, which had been granted after the alleged assault of 11/11/18.
On 24/8/20, the appellant was represented by a solicitor, who entered pleas of guilty on her behalf to all 3 offences. The magistrate imposed a conviction in each case and a fine for 2 of the offences.
On 17/9/20, a Notice of Appeal to this Court was filed on her behalf, which asserted that the appellant is not guilty of the offences and also that the penalties imposed in each case are too severe.
However on 22/10/20, a Notice of Motion was filed, seeking leave to withdraw the appellant's previous pleas of guilty, and orders setting aside the convictions and remitting the charges to the Local Court for re-determination.
The appellant has sworn an affidavit in which she says that from the beginning of the matters, her intention was to plead not guilty.
In relation to the charge of assault said to have occurred on 11/11/18, I note that the appellant was not charged until 7/10/19. That charge first came before the Local Court on 22/11/19, when a Registrar granted "leave to file unserved CAN" and directed that an arrest warrant was to issue. The proceedings on the assault charge next came before the Local Court on 4/2/20, when the record notes "warrant executed", and that there was no appearance by the Appellant at 12.50pm. The Magistrate then proceeded under s196 of the Criminal Procedure Act 1986 in the absence of the appellant and recorded a conviction for the assault and made an Apprehended Domestic Violence Order.
Ten days later, on 14/2/20, it is alleged that the appellant committed the offence of knowingly breaching the AVO made on 4/2/20. It appears that the appellant was arrested on 14/2/20 on that charge and remained in custody until she came before the Local Court the next day - 15/2/20. On that day, when the charge of contravene AVO came before the Local Court, the appellant, who appeared by AVL, was granted bail.
The proceedings for both the assault and the contravene AVO charges next came before the Local Court on 19/2/20. On that day, the record notes that the appellant was represented by a legal practitioner. On that date, the conviction on the assault charge was annulled and a date set, with an estimate of 3hrs, for the hearing of both charges on 16/6/20, and orders were made for a brief to be served 28 days before the hearing.
It appears however that the hearing did not occur on 16/6/20 - probably due to COVID-related listing problems. However, on 29/6/20, the proceedings were relisted, and a new hearing date set for 24/8/20. On each occasion, a request for an interpreter was made.
On 24/8/20, the Court record notes that the appellant appeared in person, represented by a solicitor, and that pleas of guilty were entered in relation to both charges, as well as for a charge of failure to appear on 4/2/20.
[2]
Evidence of the Appellant's former solicitor
The Appellant's former solicitor gave evidence in the proceedings before me, and maintained that when he entered the pleas of guilty, he was acting on instructions from the appellant to do so.
He produced three file notes. The first file note was one that he said he made on 9/8/20, when the appellant met with him at his home office.
In that file note the solicitor records that he gave advice to the appellant about the pleas of guilty. The terms of the file note make it clear that what was discussed on that occasion was an incident when the appellant was at the house of Mr Reid, when Mrs Reid (who was the person protected by the ADVO) arrived at the home. While there is no mention of the date of this event in the file note, the description of events discussed in the file note makes it obvious that it is the incident of 14/2/20 which is being referred to.
The Facts sheet relating to that matter alleges that on that occasion the appellant attended the home address of Mr Reid. The clear implication in that fact sheet is that at that time, Mrs Reid was not living at that address, but came to visit Mr Reid "to check if (he) had been taking his pain medication".
The file note made by the solicitor, apparently on 9/8/20, proceeds however on the mistaken basis that at the relevant time (14/2/20), Mrs Reid was living at that house. As I have said, the clear implication in the Facts sheet is however that she was not living there, but was only visiting Mr Reid. The terms of the ADVO, which are recited in the Facts Sheet, do not include a condition that the appellant not attend the home of Mr Reid, but merely that she not (inter alia) assault, threaten, harass etc or approach Mrs Reid.
It appears that the advice given by the solicitor, as recorded in his file note, was to the effect that the appellant had no defence to the charge of breaching the ADVO on 14/2/20 because she should not have been at that house, and therefore that any assault on her by Mrs Reid was not unlawful, as she was entitled to remove the appellant from the house. The file note records at various points that the solicitor told the appellant that she "should not have been at the victim's house" and that it was "the house where the victim lived".
As I have said, based on the evidence before me, this involves a misunderstanding of the police allegation.
In my view therefore (again based on the evidence before me) - the advice given by the former solicitor about the alleged offence of 14/2/20, appears to be based on an assumption that is wrong. If indeed the appellant was invited into Mr Reid's home by him, and if indeed (as the Statement of Facts suggests) Mrs Reid was not living there at the time, then Mrs Reid would have had no entitlement to use force to remove the appellant from the house, at least without being requested to do so by Mr Reid.
In my opinion therefore, there is evidence suggesting that the appellant may have received incorrect advice about whether she had a possible defence to the charge of 14/2/20. This problem is compounded also by the fact that when the former solicitor gave this advice, there was no Mandarin interpreter present to assist.
Furthermore, the file note by the solicitor of 9/8/20 contains no mention of any advice given to the appellant in relation to the other 2 offences for which she was sentenced after pleas of guilty on 24/8/20.
As earlier noted, those offences were - an alleged assault on 11/11/18, and a charge of failure to appear at court on 4/2/20. As I have just noted, the file note of 9/8/20 makes no mention at all of any advice given about these 2 charges.
On the other hand, the affidavit and evidence of the appellant was to the effect that she had always maintained an intention to plead not guilty to all charges.
The appellant does however acknowledge in her affidavit that on 24/8/20 when she attended Court, she was told by the solicitor that "we are pleading guilty" and that thereafter she sat behind the solicitor while he spoke to the Court, and presumably, entered the pleas of guilty. There is also the fact that in an email dated 9/9/20 which the appellant sent to her solicitor she said "I still do not understand why you told me to plead guilty…"
However, and notwithstanding these actions, what is clear from the appellant's evidence is that although she acquiesced in her lawyer's actions in entering pleas of guilty that day, this occurred in circumstances where she was crying and felt overwhelmed. The evidence supports the conclusion also that there was no Mandarin interpreter present when the solicitor spoke to the appellant before Court, or when he entered the pleas of guilty in Court.
The appellant's claim that she never, prior to 24/8/20, gave instructions to the solicitor to enter pleas of guilty is given support by other evidence. Firstly, there is the agreed fact that no interpreter was present on 9/8/20 or before or in court on 24/8/20. Secondly there is the fact that on 19/8/20, the appellant sent an email to the solicitor which attached some photos of injuries she said she suffered on the day of the first incident (11/11/18). Thirdly, there is the email she sent to the solicitor on 9/9/20, in which she stated (in effect) "I still do not understand why you told me to plead guilty on 24/8/20 - 10 seconds before we went into the Court room" and in which she also said "I did not do it" and "I sent you the pics - Why didn't you let me defend myself and ask that woman and Norman to prove it in the court?"
In response, The Solicitor sent an email which said "You are forgetting what you told me. You admitted that you did it in self defence. You did not understand then and you still do not understand you were in their property illegally and refused to leave. I have had enough of trying to explain it time and time again to you. Stop contacting me."
This email appears to continue the solicitor's misunderstanding that the house in which the alleged breach of the ADVO occurred was at that time "their property" (ie the joint property of Mr Reid and Mrs Reid) - which is not supported by my reading of the Police Statement of Facts.
[3]
Legal principles
The legal principles to be applied where an accused person seeks to withdraw a plea of guilty have been discussed in a number of cases. In R v Van [2002] NSWCCA 148, James J referred to some of those principles in a summary form, as including the following:-
1. where the plea was not a "free and voluntary confession";
2. where the plea was not really attributable to a genuine consciousness of guilt;
3. where there was some mistake or other circumstance affecting the integrity of the plea as an admission of guilt.
In Ishac v R [2011] NSWCCA 117, McColl JA said at [30] - "the question in a case where the applicant seeks to challenge a conviction following a plea of guilty is not guilt or innocence as such, but the integrity of the plea." See also R v Kouroumalos [2000] NSWCCA 453.
[4]
Determination
The evidence placed before me is insufficient to enable a firm conclusion to be reached about the relative strength of any defence that the appellant might seek to rely on.
However, in my view, the appellant has demonstrated that there is a real question about the integrity of the pleas of guilty that were entered on her behalf in the Local Court. I am satisfied on the balance of probabilities that the pleas of guilty were not a "free and voluntary confession" that were "really attributable to a genuine consciousness of guilt". Furthermore, I am satisfied that there was probably a mistake or oversight affecting the advice given to the appellant by her then solicitor, in relation to the nature of the prosecution case concerning the allegation of 14/2/20, and in failing to give any detailed advice about the alleged offences of 11/11/18 and of 4/2/20.
I grant leave pursuant to s.12(1) of the Crimes (Appeal and Review) Act 2001, to bring the appeals against convictions recorded in the Local Court.
I note that both parties submitted that if I reached the conclusion that it was appropriate to set aside the convictions, then I should remit the matters for re-hearing in the Local Court. I am satisfied that that is the appropriate course.
Accordingly, pursuant to s.20(1)(c) - I set aside the convictions and penalties imposed, and I remit the proceedings to the Local Court for redetermination.
The matters are adjourned to the Penrith Local Court on 1 December 2020 for mention.
[5]
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Decision last updated: 24 November 2020