Wong v Director of Public Prosecutions

Background

1. Before assessing the bases of this application it is necessary to outline the background of Mr Daghagheleh and the circumstances of the offence of which he has been convicted. In doing so I note that only a limited amount of evidentiary material was placed before the Court. The following is taken from an affidavit of Mr Daghagheleh and the documents that were supplied by the parties.
2. Mr Daghagheleh was born in Iran in 1987 and was 25 years of age at the time of the offence. Mr Daghagheleh is an Ahwaz asylum seeker who fled to Australia in 2009. After spending 16 months in detention centres he was granted a community placement. He appears to have been living in Sydney with two of his siblings from some time in 2011 to the time of the offence.
3. On 31 December 2012, Mr Daghagheleh attended a nightclub on Oxford Street with a friend he knew as 'Abdellah'. According to his affidavit sworn 18 February 2016, prior to heading into the city, he received a phone call from his mother in Iran. She told him that she was undergoing chemotherapy for breast cancer and had already had one of her breasts removed. Mr Daghagheleh states that he was upset especially as three of his siblings had died within a six year period, some in tragic circumstances. Further, as a result of his own traumatic experiences connected with fleeing persecution in his home country, his mental state at that time was "very poor".
4. On the night of the offence, Mr Daghagheleh and Abdellah attended the Colombian nightclub on Oxford Street in Sydney, where they spent the evening drinking and dancing. Mr Daghagheleh drank heavily. Between 9.30 and 1am he consumed upwards of 16 drinks
5. According to the police facts, at some point, a female patron of the nightclub notified a security guard that she had been accosted in the women's bathroom by an unknown male. She described an incident in which a man pushed her into a stall and grabbed her buttocks before laughing and saying she had a "nice arse". The complainant proceeded to describe the offender to the security guard. In an attempt to locate the offender, it appears that the security guard looked over CCTV footage of the nightclub to identify someone who matched the complainant's description. The security guard identified Mr Daghagheleh. The police facts do not suggest that the incident in the bathroom was recorded or witnessed by anyone other than the complainant and the offender.
6. According to Mr Daghagheleh's affidavit, at approximately 1am, he and Abdellah were approached by "about five or six security guards" and escorted out of the nightclub's premises. Mr Daghagheleh states that Abdellah's "english was much better than mine, and he translated what the security guards were saying to me".
7. The police were called. Mr Daghagheleh was arrested and taken to the Surry Hills Police Station. In his affidavit Mr Daghagheleh states that he was not interviewed for approximately three hours until 4.00am or 5.00am in the morning. He states that he had an Arabic interpreter but did not know he was entitled to a lawyer. The interview lasted for 10 to 15 minutes. He said that he was still drunk at the time. He recalled that he told the police that he was upset about his mother's diagnosis.
8. The police facts record that Mr Daghagheleh was advised of his rights via the telephone interpreter service but that the interview could not commence until an interpreter arrived. In the meantime the complainant had attended the police station and signed a statement. According to the police facts once the interpreter arrived Mr Daghagheleh agreed to be interviewed and the interview was recorded. They note that "during the interview the Accused denied any knowledge of wrong doing and kept stating that he was drunk and that he had family issues that were concerning him".
9. The complainant's statement, the recording of the interview and the transcript of the interview were not made available to the Court on this application.
10. Following the interview with the police Mr Daghagheleh was charged and released.

Proceedings in the Local Court.

1. Mr Daghagheleh attended the Local Court a number of times between his initial court date on 13 January 2013 and when he was convicted on 27 February 2013. It appears that a number of adjournments were made to give him time to engage an interpreter and seek legal advice.
2. On 14 February 2013 Mr Daghagheleh met with a Legal Aid solicitor and an interpreter. Mr Daghagheleh states that he was told by this solicitor that the charge he faced was "high and difficult" and that he would receive a discount in his sentence if he pleaded guilty. He states that he did not want to plead guilty and no inquiries were made by his solicitor about what happened on the night of the offence or whether he was in fact guilty. Mr Daghagheleh states that he was given a form by the solicitor which he signed. He further stated: "I didn't really understand what the form was precisely for, and what the consequences would be if I signed it. I signed it however because I wanted the situation to go away. I thought if I signed it, I would not be put in jail. I now understand the this form meant had agreed to plead guilty"
3. The form is headed "Instructions to plead guilty". It is typed and then signed by Mr Daghagheleh and co-signed by a Legal Aid solicitor and an interpreter. It records his instructions to plead guilty to a charge of assault with act of indecency, his understanding of the maximum penalty, and his acknowledgement of the risk that he may be jailed or be subject to alternative sentencing options such as home detention, suspended sentence and community service. At the bottom of the form beneath the signatures the following words appear in handwriting:
4. "I'd like my solicitor to ask the Court to not to convict me. I may be placed on a bond."
5. On 14 February 2013 Mr Daghagheleh's plea of guilty was entered and the matter was adjourned to 27 February 2013.
6. On 27 February 2013, Mr Daghagheleh attended the Downing Centre Local Court. He was convicted and sentenced.
7. The material tendered on sentence included a typed letter signed by Mr Daghagheleh. The letter refers to his background and concern about the health of his mother. It includes the following:
8. "At the moment I am waiting for my Australian visa which depends on the judge's respon[ce] at court. I am aware that I am guilty and did wrong thing because I was very upset when I heard about my mother's cancer but I really do not remember anything."
9. There was also a tendered a one page presentence report which included the statement that Mr Daghagheleh had "expressed remorse for his behaviour and explained that he drank to excess after learning that his mother was to undergo surgery."
10. In addition there was tendered a character reference from a caseworker with the Australian Red Cross Society, Marlon Dimaano. Mr Dimaano stated that he had been working with Mr Daghagheleh for approximately seven months. Mr Dimaano's reference stated, inter alia:
11. "Mr Daghagheleh has advised me of his charges before the court and the circumstances that lead to this. Mr Daghagheleh has expressed remorse over the actions he has undertaken as associated with his charge."
12. As noted Mr Daghagheleh was convicted and ordered to enter into a bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for two years and pay a fine of $500.
13. In his affidavit, Mr Daghagheleh states that upon hearing the Presiding Magistrate read out the facts of the offence he felt "embarrassed" and found the proceeding "intimidating". He said that after he left Court he tore up all of his papers concerning the charges "because I was so embarrassed'.
14. Mr Daghagheleh also stated that "at no point during the whole police and court process, including on this day in Court, did I understand what I had been charged with".
15. On or about 27 February 2013 a solicitor from the Legal Aid Commission wrote to Mr Daghagheleh. This letter informed him of his right to appeal his sentence and the timeframe in which he would be able to do so. Mr Daghagheleh stated that he was unable to understand the contents of the letter and "embarrassed and scared" by the Court processes he had experienced only days earlier. He said he tore up the letter and threw it away.
16. In his affidavit, Mr Daghagheleh states that sometimes afterwards he received a warning letter from the Department of Immigration and Citizenship advising him that the Minister had decided not to revoke his "community detention placement". However on 10 October 2014 he was taken into custody and informed his "community detention placement" had been cancelled. He has been detained at Villawood Immigration Detention Centre ever since. This application was lodged on or about 20 June 2016.
17. Submissions
18. Applicant's submissions
19. In his submissions dated 20 June 2016, the solicitor for the applicant, Pierre Hawach, contends that the conviction and the sentence imposed upon Mr Daghagheleh give rise to an appearance of a doubt or a question as to both his guilt and whether his personal circumstances were given adequate consideration at the time he was sentenced.
20. On the matter of Mr Daghagheleh's conviction, Mr Hawach points to three primary grounds upon which the appearance of doubt appears to emanate: the absence of any positive identification of Mr Daghagheleh as the offender by the complainant herself; the discrepancies between the description of the offender provided by the complainant to the security guard and the appearance of Mr Daghagheleh on the night the offence took place; and, the inability of Mr Daghagheleh to recall the incident that constituted the offence.
21. The culmination of these circumstances, Mr Hawach submits, raises a doubt or question as to Mr Daghagheleh's guilt. Referring to the discussion of Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Holland") at [5] to [8] concerning the purpose of Part 7 as well as the test applicable to deciding whether to exercise the discretion to refer a matter for rehearing or inquiry, Mr Hawach contends that the material before the Court on this application is sufficient to cause the person considering the matter, in this case myself, "unease or a sense of disquiet" in allowing the conviction to stand (Holland at [6]). He contends that this sense of unease or disquiet arises notwithstanding the absence of any 'fresh' or new evidence before the Court on this application.
22. The submissions on behalf of Mr Daghagheleh also seek to address two potential barriers that may cause the Court to refuse to consider the application by exercising its discretion under s 79(3) of the Act. First, that Mr Daghagheleh pleaded guilty in the Local Court and second, that Mr Daghagheleh did not exercise his right to appeal the decision of the Local Court despite being advised by Legal Aid NSW of this option. In addressing both of these points, Mr Hawach emphasises the difficulties Mr Daghagheleh experienced, both linguistically and culturally, in navigating and understanding the legal process he found himself the centre of.
23. While maintaining his submission that there is an appearance of doubt as to Mr Daghagheleh's guilt, Mr Hawach also contends that the severity of the sentence raises a question as to whether the mitigating circumstances of Mr Daghagheleh's personal history were adequately taken into account by the sentencing court. In support of this submission, Mr Hawach points to the traumatic events Mr Daghagheleh has experienced, including those which led him to drink in excess on the evening of the offence.
24. Attorney General's submissions
25. The submissions filed on behalf of the Attorney General, drew attention to the lack of "fresh evidence" and "new material" provided on the application, the voluntary nature of Mr Daghagheleh's guilty plea and the tendering of documents on sentence which indicated Mr Daghagheleh's remorse. They accept that the events that transpired and resulted in Mr Daghagheleh's conviction were unfortunate but contended that they do not raise the appearance of a doubt or question as to his guilt necessary to warrant action being taken under s 79(1).
26. In particular the submissions concede that the evidence relating to the identification of Mr Daghagheleh by the security guard reviewing CCTV footage is concerning. However, they contend that there is no material supporting the existence of some alleged discrepancy between the description proffered by the complainant of the man who accosted her and the appearance of Mr Daghagheleh on the night of the offence.
27. The balance of the Attorney-General's submissions are directed to the circumstances in which Mr Daghagheleh voluntarily pleaded guilty and expressed remorse prior to his sentencing. First, it is noted that on the day that Mr Daghagheleh provided signed instructions that he wanted to enter a plea of guilty, he was represented by a Legal Aid NSW solicitor and assisted by an interpreter to understand the implications of his plea.
28. Second, the Attorney-General's submissions emphasise Mr Daghagheleh's acceptance of his wrong-doing and responsibility for the offence on a number of occasions, including in the letter dated 25 February 2013, the Probation and Parole Officer's report and the testimonial statement provided by the Red Cross caseworker. It is contended that these documents evidence that Mr Daghagheleh accepts responsibility for the incident that took place on 31 December 2012. It is submitted that, despite some irregularities in the process by which Mr Daghagheleh was identified, there cannot be said to be the appearance of a doubt or question as to Mr Daghagheleh's guilt in circumstances where he has voluntarily entered a guilty plea and expressed remorse.
29. In relation to sentence imposed on Mr Daghagheleh it is submitted that was well within the range of the available sentencing options. Nevertheless, it is conceded that there are "some strong subjective circumstances that the court should have taken into account on sentence", namely, his background and his mother's illness.
30. Applicant's Submissions in Reply
31. Submissions in reply on behalf of Mr Daghagheleh were filed on or about 25 October 2016. They were unsigned. Those submissions disputed that the application primarily relates to the circumstances surrounding Mr Daghagheleh's instructions to plead guilty or appeal his conviction but instead "concern… the existence of sufficient doubt or question as to Mr Daghagheleh's guilt". The balance of the submissions reiterates the points previously made about the weakness of the evidence identifying Mr Daghagheleh as the person responsible for the indecent assault.
32. In addition the submissions contend that any interpreting assistance that Abdellah may have provided to Mr Daghagheleh on the evening of the offence would not have informed him of the nature of the allegation especially as he was affected by alcohol. They also contend that the instructions given by Mr Daghagheleh to his solicitor were not a confession of guilt in that they also state that he cannot remember anything. In those circumstances it is contended that "[i[f the Applicant cannot remember anything, then he is unable to make a proper admission of guilt". They also note that the transcript of the hearing of 27 February 2013 does not record Mr Daghagheleh being asked whether he was guilty "or understands what guilt is".
33. Applicant's Further Submissions
34. Even though the various submissions referred to the contents of a number of the documents and asserted they were annexed to the submissions they were not. Accordingly the Court requested they be provided. It became apparent that Mr Daghagheleh's solicitors had not received copies of the probation and parole report or the reference from the Red Cross caseworker referred to above (at [20] and [21]). They were provided and Mr Daghagheleh was given the opportunity to file further submissions in respect of those documents.
35. Further submissions were filed on or about 15 December 2016. It was contended that the documents "cannot be determined to evidence a proper admission of guilt". They note that they only refer to his remorse and that "it is possible that the Applicant was expressing remorse over drinking to excess, rather than assaulting the victim". They also note that there is "no evidence" that either the character reference to or the presentence report was ever read back to Mr Daghagheleh via an interpreter and otherwise note his complaints about the interpreter. The submissions also reiterate that the transcript of 27 February 2016 records that neither the presiding magistrate nor Mr Daghagheleh's solicitor "questioned whether the Applicant was actually guilty of the offence".
36. Section 79(3): Special Factors or Special Circumstances
37. On one view of s 79 in circumstances where s 79(3)(a)(iii) is engaged it is first necessary to address whether there are "special factors or special circumstances" that would warrant the Court considering the application. It suffices to state that, if that is the proper construction of s 79(3), then I am so satisfied in that, even though Mr Daghagheleh received a non custodial sentence, it appears that the result of the conviction has been to cause him to be detained for over two years and may result in his deportation. The incurring of such a disproportionate sanction as a result of the challenged conviction can constitute "special factors or special circumstances" even if they are imposed by law, specifically federal migration laws.
38. The Conviction
39. The starting point in considering Mr Daghagheleh's conviction is to note the material that has not been provided. The Court was not provided with the victim's statement noted in the police facts, any statement from the security guard who received the victim's identification or the transcript or recording of the interview with Mr Daghagheleh. It is not clear whether or not any of that material was in the possession of the Legal Aid Commission when it acted for Mr Daghagheleh. Further the Court was also not provided with any statement from Mr Daghagheleh's solicitor, the interpreter, the author of the probation and parole report or the Red Cross caseworker. It was also not provided with the transcript of the hearing in the Local Court on 14 February 2013 when Mr Daghagheleh entered his plea of guilty.
40. All of this material was of potential significance to the application. As this involves an administrative process there is no legal or evidentiary onus on either party. Nevertheless the absence of this material may mean that it is that much harder for Mr Daghagheleh to persuade the Court of the requisite doubt about his conviction.
41. As noted Mr Daghagheleh contends that his conviction was attended with the requisite doubt because the material that is available was not capable of demonstrating that he was the person who indecently assaulted the complainant. Allied with this is a contention, or at least an implication, that Mr Daghagheleh's solicitor was not in possession of sufficient material to suggest that he was the perpetrator so as to advise or at least allow him to plead guilty. These submissions assume that the totality of the material available to the prosecution and known to Mr Daghagheleh's solicitor suggesting that Mr Daghagheleh was the perpetrator was the police facts. This is far from clear especially when the contents of the complainant's statement are not known. For example even if the complainant did not positively identify Mr Daghagheleh herself (eg outside the night club when the police arrived) she may have provided a description of the offender to the security guard that enabled him to properly identify Mr Daghagheleh as the offender.
42. It is not necessary to advance this further because, contrary to the submissions of Mr Daghagheleh, the fact of his plea and a consideration of whether he can withdraw it are crucial to the outcome of this application. Absent a statutory provision to the contrary, Mr Daghagheleh's plea of guilty constitutes a binding admission that he was the offender. In this context the binding effect of his plea can only be undone if Mr Daghagheleh brings himself within the limited circumstances that enable someone to withdraw the plea. This can be tested by considering what would occur if the Court granted his application and referred the "whole [of his] case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912" (s 79(1)(b)). In any such appeal the threshold question would be whether Mr Daghagheleh could withdraw his plea.
43. In Application of Nardelli [2006] NSWSC 967 Johnson J at [16] to [18] discusses that circumstance as follows:
44. "16 Where an appeal against conviction follows a plea of guilty, it is necessary for an appellant to demonstrate that he did not appreciate the nature of the charge to which the plea was entered, that the plea was not a free and voluntary confession, that the plea was not really attributable to a genuine consciousness of guilt, that there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt, that the plea was induced by threats or other impropriety, that the plea was not made in circumstances suggesting that it was a true admission of guilt or that, at the time the plea was entered, the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt: R v Van (2002) 129 A Crim 229 at 238-239 (paragraphs 48-50).
45. 17 A Court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Meissner at 141; Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 at 45 [33]. A person may plead guilty upon grounds which extend beyond that person's belief in his guilt including 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: Meissner at 157.
46. 18 A person seeking to withdraw a plea of guilty bears the onus of proof upon the application and must establish "a good and substantial reason for the court taking that course": R v Sewell [2001] NSWCCA 299 at paragraph 39; Wong v Director of Public Prosecutions at 46 [39]."
47. In Wong v Director of Public Prosecutions at [35] to [36] Howie J's analysed the circumstances in which a person who received legal advice prior to pleading guilty may be permitted to withdraw their plea:
48. "If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff's antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.
49. If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. 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 the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests." (emphasis added)
50. I have summarised Mr Daghagheleh's affidavit above. He contends that his plea was entered without him being apprised of the nature of the conduct that he was accused of. Despite his affidavit I consider that the material does not raise a doubt about his conviction in that I do not consider that there is the requisite doubt that his plea of guilty was not "entered in the exercise of a free choice" in Mr Daghagheleh's "own interests".
51. As noted early on the morning of 1 January 2013 Mr Daghagheleh was interviewed at the police station with an interpreter present. By that time he had been in the police station for a number of hours. The effect of alcohol would have been diminishing. By the time of the interview the police had obtained a statement from the complainant. It is inconceivable that in that interview that the police did not apprise Mr Daghagheleh of the allegation against him.
52. It is true that the written instructions dated 14 February 2013 do not record any acknowledgement by Mr Daghagheleh of the factual allegations against him. However the handwritten annotation to the document strongly suggests that Mr Daghagheleh signed the document completely cognisant of what he was agreeing to and having considered the possible consequences for him if he pleaded guilty. His solicitor took care to ensure his instructions were recorded. In those circumstances it is implausible that his solicitor would have breached her professional obligations by not satisfying herself that Mr Daghagheleh understood the allegations against him.
53. This is confirmed by the terms of the probation and parole report and the reference letter from the Red Cross Caseworker. There is no plausible reason why Mr Dimaano would falsely record that Mr Daghagheleh advised him of the "charges before the court and the circumstances that lead to this".
54. In the end result Mr Daghagheleh would have been apprised of the allegations against him early on the morning of 1 January 2013. Thereafter each of the written instructions to plead guilty dated 14 February 2013, his letter of 25 February 2013, the probation and parole report and Mr Dimaano's letter suggest that on multiple occasions he affirmed his intention to plead guilty. At the very least the circumstances of the completion of the instructions to plead guilty and the terms of Mr Dimaano's letter suggest he did so knowing the nature of the allegations against him. The contrary conclusion involves the police inexplicably failing to advise him of the allegations against him, his solicitor breaching her professional obligations in circumstances where she otherwise took care to record his instructions and his caseworker providing a false letter to the Court.
55. I do not consider that there is a doubt about whether Mr Daghagheleh's "plea of guilty was entered in the exercise of a free choice" in his interests. It follows that it does not appear to the Court that there is any doubt about his conviction.
56. The Sentence
57. As noted, on behalf of Mr Daghagheleh it is contended that the sentence imposed was too severe in that it failed to give adequate consideration to the relevant mitigating factors, namely, Mr Daghagheleh's background and history and the news he received from his mother on the evening the offence took place. I do not agree. The presiding Magistrate explicitly addressed Mr Daghagheleh's background, stating: "I have heard about the circumstances of your background. You and your family have clearly suffered difficult times and tragedy" (T 27/2/13).
58. Otherwise, this sentence is well within the range permissible by the Local Court for the relevant category of offence. The offence would nevertheless have been a great affront to the complainant's bodily autonomy in a space she would have understood to have afforded her some safety and privacy. It is not in dispute that Mr Daghagheleh was intoxicated at the time of the offence. While his very understandable distress at the news of the mother may have caused him great concern, it was open to the Magistrate to consider that his consumption of alcohol as a result of his distress about his mother did not substantially mitigate his actions.
59. There is no prospect of the sentence imposed on Mr Daghagheleh being interfered with on appeal. This aspect of Mr Daghagheleh's application does not raise the necessary sense of unease or disquiet required for the Court to exercise the discretion to take action under s 79(1) of the Act.
60. Conclusion
61. As it does not "appear" that there is the requisite doubt about either the conviction or the sentence, the application of Foad Daghagheleh of 20 June 2016 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) must be refused.

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