The submissions on behalf of the appellant
49 The ultimate question is in the terms of s 6 of the Criminal Appeal Act 1912, whether there was a miscarriage of justice: see R v Murphy (1965) VR 187; R v Chiron (1980) 1 NSWLR 218; R v Davies (1993) 19 MVR 481; R v Khan [2002] NSWCCA 521.
50 In R v Hura it was said that a number of circumstances had been identified when a conviction may be set aside notwithstanding a plea of guilty. Statements of the circumstances included that the appellant 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); that the plea was not a free and voluntary confession (R v Chiron at 220); that the plea was not attributable to a genuine consciousness of guilt (R v Murphy at 191); that the plea was induced by threats or other impropriety where the appellant would not otherwise have pleaded guilty, so that the plea was not really attributable to a genuine consciousness of guilt (R v Cincotta, CCA, 1 November 1995); that the plea was equivocal and made in circumstances suggesting that it was not a true admission of guilt (R v Maxwell (1995) 184 CLR 501 at 511); and that the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt (R v Davies at 485). These are instances of where a miscarriage of justice may be found, not exhaustive statements of the test for miscarriage of justice.
51 The plea itself is a cogent admission of the ingredients of the charge (R v O'Neill (1979) 2 NSWLR 582; R v Sagiv (1986) A Crim R 73; R v Davies), and as was said by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1994) 184 CLR 132 at 141 -
"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."
52 Counsel for the appellant submitted that the miscarriage of justice lay in improper pressure upon the appellant, constituted by Mr Paish negotiating a "deal" with the Crown Prosecutor without instructions and presenting the deal to the appellant, then seeking more time from the judge despite current instructions to defend the charges, and then persisting in urging the deal upon the appellant with reference to the list of witnesses and finally by calling upon him to sign the instructions document. Added to this, it was said, was improper pressure by telling the appellant that the DNA report showed that he and the complainant were brother and sister, when the report was not admissible in its then form and had not been read closely or confirmed by expert advice. It was said that the appellant was misled in this respect.
53 The submissions effectively abandoned the appellant's own explanation for his pleas, and did not have the benefit of evidence from the appellant that he felt under pressure because the deal had been negotiated without his instructions, because more time had been sought, because of the list of witnesses and the instructions document, or because of what he was told about the DNA report. The appellant said nothing about concern over pre-negotiation of a deal. His account of going to and from court was not accurate, but he did not say that it caused him to feel under pressure whereby he pleaded guilty. He denied that he was shown the list of witnesses and the instructions document, and denied any reference to DNA evidence.
54 I do not consider that, in the manner and circumstances in which they occurred, there was anything improper in Mr Paish's discussions with the Crown Prosecutor on the afternoon of 24 June 2003. When Mr Paish saw the appellant in the cells he did not present to him a concluded deal, but a preparedness of the Crown to agree in a course which was to the appellant's benefit and of which the appellant could take advantage if he wished. It was a matter for the appellant's decision and instructions.
55 It was appropriate for Mr Paish to ensure, by the list of witnesses and otherwise, that the appellant knew the force of the evidence to be presented in the Crown case, and knew that as a result of the appellant's earlier instructions the Crown had been alerted to the DNA report and could call the expert to give evidence adverse to him. It was put to Mr Paish that his conduct in these respects put pressure on the appellant to plead guilty. Mr Paish did not agree, saying that he raised matters for the appellant's consideration, and wanted to make sure that the appellant "knew the pros and cons". In my opinion, Mr Paish would have been open to criticism if he had not tried to make sure that the reasons for his advice were explained and understood.
56 Mr Paish's explanation of a perceived need to seek written instructions that, notwithstanding his advice, the charges should be defended was understandable and should be accepted; there was nothing improper in his seeking the written instructions.
57 The significance of the DNA report did not lie in any representation of its then admissibility or unchallengeable conclusiveness; neither representation was made. The DNA report did say that, in the expert's opinion, it was practically proven that the appellant and the claimant were brother and sister, and the subpoena raised the prospect that the Crown, now alerted to it, would call DNA evidence adverse to the appellant. That would have been the time for challenge. It was quite appropriate for Mr Paish to take the DNA report into account in the advice he gave to the appellant, advice not founded solely on the DNA report - the evidence of the mother and father would itself have been telling. So far as the reference to the DNA report influenced the appellant, I do not think he was wrongly advised or subjected to improper pressure.
58 I do not think that the appellant pleaded guilty because of the matters to which his counsel referred. He exercised a free choice in his own interests, and I repeat my acceptance of Mr Paish's observation that the appellant was a fairly strong-willed person and not someone who would be pressured into anything; to this may be added the observation that Mr Paish was "dealing with someone who was pretty clear-minded and determined". In my opinion, it has not been shown that there was a miscarriage of justice in the court acting upon the appellant's plea.