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Court of Criminal Appeal 18 April 2005

Hawker v R

[2005] NSWCCA 118

Assault & violenceTheft & property
CRIMINAL LAW ERRONEOUS LEGAL ADVICE

Citation: Hawker v R [2005] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 18 April 2005
Judge(s): Grove J, Howie J, Hall J

Background

The appellant pleaded guilty in the Local Court to entering a dwelling house with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm, in company, contrary to s 111(2) of the Crimes Act 1900. He was committed to the District Court for sentencing and adhered to his guilty plea before Judge Patten, receiving a sentence of two years' periodic detention with an 18-month non-parole period.

The alleged offence arose from an incident on 27 October 2002, when the appellant and three family members attended a unit block, ostensibly to retrieve property belonging to his sister. A violent altercation followed, resulting in serious injuries to one resident. Throughout his police interview and his evidence before Judge Patten, the appellant consistently maintained that he had not intended violence and was unaware a family member had brought a hammer to the scene.

The appellant appealed against conviction on two grounds: that the sentencing judge ought not to have accepted the plea, and that the conviction constituted a miscarriage of justice. He also sought leave to appeal against sentence in the alternative.

  • Whether the appellant's guilty plea was entered in a proper understanding of the elements of the offence charged under s 111(2) of the Crimes Act 1900
  • Whether the defence solicitor's misunderstanding of the required mental element (intent versus recklessness) vitiated the plea
  • Whether the conviction constituted a miscarriage of justice such that the Court of Criminal Appeal should intervene

Decision

The Court found that the appellant's solicitor had explained the elements of the offence by reference to recklessness, advising the appellant that it was sufficient if he had contemplated the possibility of violence causing injury. That understanding may have been appropriate for an offence under s 59 of the Crimes Act 1900, but it was incorrect for the charge actually brought under s 111(2), which required proof of a specific intent to commit assault occasioning actual bodily harm.

The appellant had never given instructions that he intended to cause harm when he entered the unit. On the contrary, his consistent account was that he went along to ensure the property request proceeded without incident. The Court noted that a passage from the solicitor's own sentencing submissions plainly revealed the erroneous legal basis on which both the solicitor and the appellant were operating.

Because the plea was not made with a full understanding of the charge, and did not amount to an admission of all the elements of the offence, the Court held that a miscarriage of justice arose when Judge Patten acted upon it to record a conviction. The Crown ultimately conceded the point before the Court of Criminal Appeal. The Court emphasised that neither the apparent strength of the Crown case nor the appellant's possible motivation for appealing (his father had been acquitted) were reasons to uphold the conviction.

Orders Made

  • Appeal allowed and conviction quashed
  • New trial ordered

Key Takeaways

  • A plea of guilty entered on the basis of a misunderstood legal element does not constitute a proper admission of guilt and cannot sustain a conviction.
  • Where a defence solicitor advises a client that an offence can be proved on a lesser mental element (recklessness) than the charge actually requires (specific intent), and the client pleads guilty on that footing, a miscarriage of justice arises.
  • Under s 111(2) of the Crimes Act 1900, the prosecution must establish the specific intent to commit the nominated serious indictable offence; recklessness as to the infliction of injury does not satisfy that element.
  • The apparent strength of the Crown case and the accused's possible collateral motivations for appealing are not factors that can cure a fundamental deficiency in the basis for the plea.
  • The Court of Criminal Appeal confirmed that a conviction recorded following a plea not made in full understanding of the charge must be quashed, even where the accused has adhered to that plea on two separate occasions before two different courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 111(2)

Cases
- R v Ganderton (NSWCCA, unreported, 17 September 1998)
- Meissner v The Queen (1995) 184 CLR 132