Rotner v R

Court of Criminal Appeal (NSW)|2011-08-05|Before: McClellan CJ, Simpson J, Fullerton J, Clellan CJ

Judgment 1McCLELLAN CJ at CL : I agree with Simpson J 2SIMPSON J : This is an application, pursuant to s 5F(3) of the Criminal Appeal Act 1912, for leave to appeal against an order of Judge Knox in the District Court made 15 June 2011, refusing an application by the applicant for leave to withdraw a plea of guilty entered by him to a charge of wounding with intent to cause grievous bodily harm (a charge brought under s 33(1)(a) of the Crimes Act 1900). 3The grounds of the proposed appeal are specified as: "1. His Honour erred in failing to apply the principles bearing on the application to withdraw the plea of guilty. 2. His Honour erred in refusing to permit the applicant to rely on material tendered on the application in respect of the strength of the prosecution case against the applicant."

The background 4The events giving rise to the charge against the applicant occurred on 10 April 2010. It is alleged by the prosecution that, in the early hours of that day (a Saturday), in an intoxicated state, the applicant encountered a Mr Jonathan Devery and Mr Devery's girlfriend (Ms Melissa Sanders). The first encounter occurred at a service station in Bondi Road, Bondi. Mr Devery and Ms Sanders had begun to walk to their home in Penkivil Street, Bondi from the service station, where they had purchased food. While they were still in the service station premises a motor vehicle, driven by the applicant, drove into the premises. It was very noisy. The applicant alighted from the vehicle, and spoke abusively to Mr Devery and Ms Sanders. Mr Devery's account of this incident is as follows. The applicant said: "What the fuck are you looking at cunt." and "What the fuck are you looking at. I will kill you cunt ... I'll will [sic] hurt you. I will fuck you up ..." Ms Sanders said: "Your car is shit, you are a dick fuck off leave us alone." Mr Devery said: "I have had good night fuck off and leave us alone." The applicant asked where they lived, and said to Ms Sanders: "Fuck off, slut." 5There then ensued some physical altercation, in which Ms Sanders grabbed the applicant around the chin, the applicant pushed her to the chest, Mr Devery stepped forward and told the applicant not to touch her again or he (Mr Devery) would push him back. The applicant again asked where they lived, to which Ms Sanders replied "Penkivil Street". The applicant said that he lived in the same street and would be waiting for them with some mates and: "I will kill. You are a dead cunt." 6The applicant returned to his vehicle and drove off into Bondi Road. Mr Devery and Ms Sanders continued to make their way home. The applicant returned to his home (in Penkivil Street) and obtained a knife from the kitchen. Mr Devery and Ms Sanders continued to make their way home, walking in the middle of the road. The applicant, accompanied by another man and a woman, jumped out from behind a car. He was holding the knife in his hand. He shouted: "I'll stab you and I'll kill you." 7Mr Devery told Ms Sanders to run to their apartment block and open the door. Ms Sanders attempted to do so, shouting at the applicant to "Leave him (Mr Devery) alone". 8Mr Devery began to back away. The applicant shouted: "I am going to knife you." He began to wave the knife around in the air, and then lunged towards Mr Devery with the knife at his chest and head areas. Mr Devery slipped backwards and fell onto the road, raised himself and began to run for the apartment block. Ms Sanders was having difficulty scanning her security card. The applicant approached and said: "I have got you now. You are dead." 9The applicant approached Mr Devery, waving the knife, striking him across his neck and chest. Mr Devery forced the applicant to the ground and punched him in the head. He (Mr Devery) was on top of the applicant. 10Another man (Bradley Roland) pulled Mr Devery off the applicant, and held him for a short time. The applicant rose, still holding the knife. At some stage during this part of the events, the applicant used the knife to stab Mr Devery in the right shoulder. 11The applicant was arrested at 3.35 am and taken to Bondi Police Station where he was charged. There is evidence that he participated in a lengthy (604 questions) interview, but this was not before the District Court nor before this Court. 12On 14 April (Wednesday) Bradley Roland was arrested in relation to the attack. He participated in a lengthy interview that was electronically recorded. In the interview (to which it will be necessary to return) he gave a comprehensive account of the events of the early morning of 10 April, heavily implicating the applicant as the aggressor and the attacker. His account was largely consistent with the account given in statements by Mr Devery and Ms Sanders, although, as may be expected in the circumstances, there were some divergences and discrepancies. 13After the interview, Mr Roland was released without charge. 14The charge against the applicant was first listed at Central Local Court on 25 May 2010. The applicant was granted legal aid in respect of the charge. Initially, and up to the time he was committed for trial the applicant's matter was assigned to Ms Louise Sutherland, a solicitor employed by the Legal Aid Commission. On 24 May 2010, the Legal Aid Commission received a copy of the police brief. That brief did not include the video recording or the transcript of the interview with Mr Roland. It did include copies of witness statements made by Mr Devery and Ms Sanders. There was also (whether included in the initial brief or not is not clear) closed circuit television footage of the initial encounter at the service station. 15At a relatively early stage, solicitors employed by the Legal Aid Commission made representations, on behalf of the applicant, to the Director of Public Prosecutions ("DPP") enquiring whether he would accept a plea of guilty to a lesser charge. That approach was refused. 16At some stage, a trial date was fixed for 11 April 2011. Early in 2011, after the applicant had been committed for trial, the matter was assigned to another solicitor in the employ of the Legal Aid Commission, Ms Joanne Harris. On or about 3 March 2011, the DPP provided Ms Harris with the video recording of the relevant interview. The content of the interview disturbed her. 17Ms Harris had a number of conferences with the applicant, including one on 8 March 2011. At this time, she understood his instructions to be that he had no recollection of the actual altercation, and no recollection of his role in the events; his only recollection was of the actions of Mr Devery. Ms Harris confirmed with the applicant that the transcript of Mr Roland's interview had previously been read to the applicant. (The applicant had told her that he had difficulties reading.) She then played the video recording to him. She discussed with him the implications of Mr Roland's account, and advised the applicant that, if that account were accepted by a jury, his "options had significantly narrowed". She understood the applicant to instruct her (as she understood he had instructed Ms Sutherland) that he conceded wounding Mr Devery, although he had not intended to do so. (AB 340) This was notwithstanding that he professed to have no recollection; his concession was based upon an acceptance that "nonetheless, he must have been responsible for the wounding". Ms Harris formed the professional view that the only defence available on the instructions she had was to put the Crown to proof in relation to issues of intent. She considered the statements of the Crown witnesses to be "largely consistent" with one another. She did not consider a "mental health defence". She did not give consideration to a defence of self defence. This was because all accounts consistently indicated that the applicant was the aggressor. 18Ms Harris had a further conversation with the applicant in which she advised him of what she perceived to be the strength of the prosecution case. Shortly after that she and the applicant were joined by counsel who had been briefed. At some stage the applicant's mother also joined the conference. 19Ms Harris then gave the applicant advice concerning the maximum applicable penalty for the offence (imprisonment for 25 years), the prescribed non-parole period (7 years), and the availability of a reduction in sentence by reason of a plea of guilty, and gave the applicant "pragmatic" advice as to why he might choose to take that course. She prepared written instructions that she read to the applicant and invited him to sign, to enter a plea of guilty. The applicant signed the document the following day, in the company of another person she understood to have been a work colleague. The written instructions contained a reference to advice given to the applicant by Ms Harris that the prosecution case was "overwhelming" and that he would, in all likelihood, be convicted if the matter proceeded to trial. 20Accordingly, on 11 March 2011, a plea of guilty was entered on the applicant's behalf. 21On 20 April 2011, an application was filed by the applicant's present solicitors on his behalf, seeking leave to withdraw the plea of guilty, and an order that the matter proceed to trial "by a single judge without jury" pursuant to s 132A(1) of the Criminal Procedure Act 1986. Only the first of these orders was pursued. On the same day, the applicant's present solicitors wrote to the DPP; inter alia, they asserted that the applicant had been "frightened" by his legal advisors into pleading guilty. The letter, relevantly, read: "According to my instructions, Mr Rotner was frightened into pleading guilty by his legal advisor, in circumstances where a view had been formed of the evidence, which was entirely at odds with my view, and further, where alternative defences available to my client, including a possible mental health defence, was not canvassed with him. Finally, Mr Rotner clearly lacked consciousness of guilt, in that he could not remember the salient events which are alleged constitute the actus reus ." 22The application came before Knox DCJ, commencing on 14 June 2011. The evidence before the court included: correspondence between the various legal representatives and the DPP; two affidavits sworn by the applicant, on 22 April 2011 and 10 June 2011 respectively, the first of which annexed a neuropsychological assessment made in February 2011, when the applicant was aged 24, and after the charge. It also contained a good deal of argumentative material, as well as references to competing advice given to the applicant by Ms Harris and by his present solicitor. To the second affidavit was annexed a significant quantity of medical material, primarily concerning the applicant's level of intellectual functioning, consisting of historical material dating back to 1993, when he was a child; an affidavit sworn by Kelly Chau, which is immaterial to the present application;

The judgment in the District Court 43In a judgment delivered ex tempore on 15 June 2011, Knox DCJ refused the application for leave to withdraw the plea of guilty. 44In his judgment, Knox DCJ identified nine bases that he said had been advanced for the application. However, it seems to me, on proper analysis there were really only (at most) three bases. They were:

the asserted inadequacy of the legal advice given to the applicant;
that the plea of guilty was entered by the applicant, not out of a recognition of his guilt of the offence, but as a result of pressure, and fear of a possible term of imprisonment of seven years;
that the applicant "may be suffering from some form of mental disability which could affect his understanding of the issues and the advice he was given". 45The complaint about the legal advice given to the applicant had a number of strands. It was said that the applicant was "misadvised" or not properly apprised of all the relevant facts prior to the entry of the plea; that the applicant was not properly advised of weaknesses in the identification evidence; that the advice placed disproportionate weight on the significance of Mr Roland's accounts of the events in this interview; that the inadequacy of the advice was "compounded" by the late service by the prosecution of Mr Roland's interview; and that Ms Harris' advice that the Crown case was "overwhelming" was inappropriate, particularly in that she did not properly advise the applicant in respect of issues of specific intent, or other possible defences, such as self-defence. 46His Honour reviewed the legal authorities to which his attention had been directed. He held: "I am not satisfied on the evidence that the applicant did not appreciate the nature of the charge, nor that he had any other intention other than to admit his guilt. Nor do I think that he could not, in law, have been convicted of the offence as charged. There is no suggestion of involuntary actions by the applicant in the sense that there were inappropriate threats or other impropriety, nor any relevant mistake affecting the integrity of the plea. ... The letter of instructions that he gave and the advice evident from it is unequivocal. I do not regard the evidence as showing that the applicant and his then advisors were not in possession of all the relevant facts ... I do not think that this was a case ... that there was not competent advice given ... (AB 111) ... I am satisfied that [the applicant] entered the plea in the exercise of his free choice, with an accurate appreciation of the nature of the charge and to pursue what he thought were his interests. I do not consider that if the court was to act on the plea entered in this instance that there would be a miscarriage of justice." (AB 114)

The relevant legal principles 47The principles upon which leave will be given to reverse a plea of guilty have been stated in various cases, with only slight variation in formulation, perhaps most succinctly in R v Kouroumalos [2000] NSWCCA 453. At [19] Wood CJ at CL said: "What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question ..." 48That concept goes back at least to R v Murphy [1965] VR 187. In that case, Sholl J said, in a passage that has been widely quoted since: "I should be disposed to agree that if [the applicant] pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial." (p 191) 49There are, in fact, two components to the test so stated - first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an "issuable" question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt, as well as circumstances that raise a doubt about his own perception, at the time he entered the plea, of his guilt. 50It is unnecessary to refer to the statements of principle in the other cases in which the test has been applied. As I have said, they are all essentially similar. What is important, is some elaboration on the circumstances that might justify a conclusion that a plea of guilty was not attributable to a genuine consciousness of guilt. Wood CJ at CL identified some of these circumstances in [16] and [17] of Kouroumalos . At [16] he said: 16. "Before the Court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 at 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1. 17 It might also occur where an accused has entered a plea of guilty after a trial Judge has erroneously decided to admit evidence that would be fatal to the defence, as was the case in Chiron ; or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Murphy ... or where an accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives; Favero [1999] NSWCCA 320 and Whitehead [2000] NSWCCA 400, or by the Court: Davey NSWCCA 3 March 1995." 51Some of these circumstances identified by Wood CJ at CL have specific relevance to the arguments advanced on behalf of the present applicant. The applicant placed particular emphasis on the decision of this Court in R v Davies (1993) 19 MVR 481, to which I will return. 52I turn now to the two pleaded grounds of the application.

Ground 1: application of relevant principles 53By this ground complaint is made about what is said to be the failure of Knox DCJ to apply correctly the principles I have outlined above. In written submissions, senior counsel for the applicant complained that Knox DCJ failed to consider that the integrity of the plea was in doubt on the basis that the plea was not really attributable to a genuine consciousness of guilt. He sought to demonstrate this by a three step process. The steps proposed were (I draw what follows from the written submissions, although in somewhat condensed form):

that Knox DCJ determined the application on the basis that the applicant had no recollection of the critical event;
that his Honour failed to consider whether, if the applicant had no such recollection, the plea of guilty was really attributable to a genuine consciousness of guilt;
that his Honour focused on a different (and wrong) question - whether the decision to plead guilty was made "in the exercise of a free choice, with an accurate appreciation of the nature of the charge and to pursue what he thought were his interests". 54It was argued that the focus upon the exercise of a free choice distracted his Honour's attention from the real question, which was whether the plea of guilty was properly attributable to a genuine consciousness of guilt. 55The submission does not do justice to the reasons given by Knox DCJ. His Honour quoted extensively from the statements of principle contained in various cases, particularly in Lawson v R [2011] NSWCCA 44, which, in turn, quoted from Kouroumalos the passages I have extracted above. Reference was also made to Liberti and R v Sargiv (1986) 22 A Crim R 73. His Honour referred to other authorities, to the same effect. 56He then said: "The relevant authority in Loury [ Loury v R [2010] NSWCCA 158] is that there must be a factor going to the integrity of the plea ... in my view I need to focus on the question of the integrity of the plea set against the background of all the material that I have referred to earlier." 57It is to be remembered that this was a judgment delivered ex tempore . Ex tempore judgments not infrequently lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing. I detect in this ex tempore judgment no failure to appreciate or apply the proper principles. This complaint under ground 1 is unfounded. 58Heavy reliance was placed on the decision of this Court in Davies . This was a case in which the applicant had pleaded guilty to a charge of culpable driving causing death while under the influence of intoxicating liquor. The plea was entered notwithstanding that the applicant had no recollection of whether or not he was the driver of the vehicle. He was convicted and sentenced and appealed, seeking leave to withdraw his plea of guilty. 59The reliance placed upon Davies stemmed from the circumstance that that appellant, like the present applicant, had no recollection of the events giving rise to the charge. However, the crux of the decision was a body of evidence (of which the appellant was at the time of the plea ignorant) calling in question contrary evidence that he had been the driver. Of itself, lack of recollection was not the basis for the decision. In another passage that has been widely quoted, Badgery-Parker J (with whom Wood and Mathews JJ agreed) said: "If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J [in Murphy ], 'an issuable question of guilt' - to put it more simply, there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial." 60The statement of principle in Davies is consistent with all other authorities; the application of those principles in that case depended upon circumstances not presently applicable. There is no body of evidence of which the applicant was ignorant which might call his guilt into question. 61On behalf of the applicant, reliance was also placed upon the criticism of the legal advice given to him. Such a circumstance arose in R v Wilkes [2001] NSWCCA 97, where an accused pleaded guilty during the course of a trial, having heard apparently damning evidence given by a witness who happened to be his brother. His counsel strongly advised him to change his plea and seek to gain what benefit he could from doing so. All of this was done in some haste and under pressure. Subsequently, counsel revised his opinion and advised the appellant that the evidence was not as damning as he had originally thought. Wood CJ at CL again stated the principles, which he described as "settled". At [20], he said: " ... the present appeal hinges upon three considerations: (a) whether the advice given to the appellant was or was not imprudent and inappropriate; (b) whether his plea was or was not attributable to a consciousness of guilt; and (c) whether the material before this Court shows that there is or there is not a real question about his guilt." 62The court accepted that the advice given under pressure to the appellant had been "imprudent" and "inappropriate". It also took into account that the appellant had continued to protest his innocence, and that he had accepted the advice given as being his best way to achieve the minimum sentence possible. 63There is nothing in the present case to suggest that the advice given to the appellant was either imprudent or inappropriate. Ms Harris, in her evidence, gave cogent reasons for the pessimistic view she took of the applicant's prospects of success. In my opinion, her advice was plainly good and correct advice. 64In my opinion this ground of appeal (if leave were granted) should fail.

Ground 2: refusal to permit the applicant to rely on certain material 65Ground 2 is even more difficult for the applicant. It is founded upon an assumption that is not clearly established on the materials before this Court. That assumption is that his Honour rejected evidence tendered on behalf of the applicant. That is why I have quoted above from the transcript of the commencement of the proceedings (see ** above). The applicant's legal representative made reference to "some documents produced on subpoena" but the transcript reveals no attempt to tender those documents at that time; I can find no (and this Court was referred to no) further attempt by the applicant's solicitor to tender that material. I acknowledge that in his judgment, his Honour appears to accept that a tender was made, but that in my opinion, overstates what can be read into the transcript. 66In any event, the ground, even without that preliminary problem, is itself based upon a further misconception. On the hearing of the application in this Court, senior counsel informed the court that the material the subject of ground 2 was the criminal record of Mr Roland, which could, it was asserted, have been used to challenge his credibility, and thereby cast doubt upon the strength of the Crown case. Accordingly, on the hearing of this application, a document purporting to be the criminal record of Mr Roland was received in evidence. Initially, senior counsel described the record as "lengthy", and relied upon it as being of such significance as to be capable of giving rise to an inference that Mr Roland's evidence would or could not be accepted. 67The document runs to three pages. On examination, it is a limited record indeed. It shows that Mr Roland was born in March 1989. In 2005, when he would have been 16 , he was found guilty in the Children's Court of assaulting a police officer in execution of duty, and resisting police officer in execution of duty, and of littering. This entry was repeated twice, giving an impression of a lengthier record than is the fact. Other entries concern warrants, but it is not clear to what they relate. In 2006, also in the Children's Court, Mr Roland was found guilty of assault occasioning actual bodily harm, and this entry, too, was repeated. That is the sum total of offences shown by this document to have been committed by Mr Roland. It is not, in my opinion, a record that could seriously call in question Mr Roland's veracity in his description of events the subject of the charge against the applicant. 68The written submissions went further, however, and asserted that the proposed evidence raised questions concerning "possible inducements to assist the authorities in relation to the applicant". This may seem a little mysterious. However, it will be recalled that, in her affidavit, Ms Georgiou referred to documents produced by the Queensland Commissioner of Police, and observed that she found the results of charges against him in that State "surprising and unusual". 69The only inference that can be drawn from this evidence of Ms Georgiou is a suggestion of gross impropriety on the part of Queensland judicial officers. Ms Georgiou gives not the slightest basis for making such a suggestion. It should not have been made. When taxed with providing an explanation for this evidence, senior counsel abandoned reliance upon it - quite properly so. 70Ground 2 is without foundation. If leave were granted, it should fail. 71Finally, it was put on behalf of the applicant that a possible defence of accident is available. This is a somewhat radical departure from the approach taken by senior counsel's predecessor, who proposed defences of inadequate identification or self-defence. 72A defence of accidental stabbing is entirely inconsistent with the objective evidence. First, by reason of the applicant's professed lack of recollection, he could give no evidence of the circumstances in which the knife penetrated Mr Devery's shoulder. A trial judge would have not the slightest evidentiary basis on which to direct a jury of a possible acquittal on the basis of accident. Second, it hardly sits comfortably with the evidence that, on his first encounter with Mr Devery and Ms Sanders, the applicant was unarmed, but after a confrontation with them (instigated by him) he went to his home, armed himself with a knife, and went out into the street, apparently in their pursuit. In those circumstances a defence of accident would not have the slightest prospect of success. 73There is no error exposed in the judgment of Knox DCJ. Even if some error were identifiable, I would be satisfied, for myself, that the applicant's plea of guilty was entered out of a true appreciation (based on sound legal advice) of the strength of the case against him, and an acceptance of his guilt, established by the overwhelming evidence against him, even in the absence of a recollection of what he did. 74I would refuse leave to appeal. 75FULLERTON J : I agree with Simpson J.

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: 08 September 2011

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