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Supreme Court 5 August 2020

Application of Marcus Uusimaki pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2020] NSWSC 1019

Domestic & family violencePublic order & justice offences
CRIMINAL LAW LEAVE REFUSED TO VACATE THE PLEA QUESTION OF ADEQUACY OF LEGAL ADVICE

Citation: Application of Marcus Uusimaki pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 1019
Court: Supreme Court of New South Wales
Date: 5 August 2020
Judge(s): Wilson J

Background

The applicant was convicted of breaching an apprehended personal violence order (APVO) following a guilty plea entered in the Sutherland Local Court in January 2019. The APVO had been made in October 2018 and restrained him from assaulting, threatening, harassing, stalking, intimidating, or contacting the protected person. The breach arose from a series of telephone calls to her workplace and a subsequent visit to the premises.

The applicant sought to vacate his guilty plea at the Local Court, contending that he had pleaded guilty due to pressure from his Legal Aid solicitor, who had told him he would remain in custody until April if he contested the charge. That application was refused, and a subsequent conviction appeal to the District Court was also dismissed.

The applicant then brought proceedings in the Supreme Court under Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into his conviction. Under that regime, the Court may refer a matter for inquiry if the information provided raises a doubt or question about the conviction.

  • Whether the applicant's guilty plea was vitiated by inadequate or improper legal advice received while he was in custody.
  • Whether previous determinations by the Local Court and District Court were procedurally or substantively flawed.
  • Whether the evidence submitted by the applicant raised a doubt or question about his conviction, sufficient to warrant an inquiry under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Whether the applicant's mental health could have materially affected his understanding of the legal advice given or his capacity to decide how to proceed.

Decision

Wilson J examined the circumstances in which the guilty plea was entered. The applicant's core complaint was that his Legal Aid solicitor had advised him that pleading not guilty would mean remaining in custody until a trial date in April 2019. Her Honour accepted that this information, concerning the likely delay before trial, was accurate advice rather than improper pressure. The fact that accurate information about the consequences of contesting a charge may have influenced the applicant's decision did not, without more, undermine the validity of the plea.

Her Honour also considered the strength of the underlying prosecution case. The applicant's own account of events revealed that he had telephoned the gymnasium repeatedly, used a silent number to ensure his call was answered, and then attended the premises in person. The Court found that those facts, taken together with evidence that the applicant had continued to monitor the protected person's social media activity, pointed to his knowledge that she worked at that gymnasium. No aspect of the material submitted by the applicant gave rise to a doubt about the conviction itself.

On the question of mental health, the applicant's representatives raised his diagnosed bipolar disorder as a potentially relevant factor. However, Her Honour noted that the evidence on this point was uncertain. The applicant had in fact told the District Court that he did not have any mental illness. On that incomplete and contradictory evidence, the Court could not conclude that any mental health condition had materially affected his understanding of the advice he received or his ability to make decisions about his case. There was also no established basis for thinking that a referral under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) had been a realistic prospect.

Wilson J ultimately concluded that the material submitted by the applicant did not raise a doubt or question over the conviction, and the application was refused.

Orders Made

  • Application refused.

Key Takeaways

  • Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), the threshold for the Supreme Court to order an inquiry is that the information submitted must raise a doubt or question about the conviction; a bare assertion of innocence or dissatisfaction with earlier proceedings does not satisfy that threshold.
  • Accurate advice from a solicitor about the likely consequences of contesting a charge, including the prospect of remaining in custody pending trial, does not of itself constitute improper pressure that vitiates a guilty plea.
  • Where a defendant's own account of the events underlying a charge is consistent with the elements of the offence, that account will weigh against a finding that the conviction is in doubt.
  • Conflicting and incomplete evidence about a mental health condition, including the defendant's own denial of any illness in prior proceedings, will not be sufficient to establish that the condition materially affected the defendant's capacity to receive and act on legal advice.
  • No error was established in the prior refusal by the Local Court to vacate the plea or in the District Court's dismissal of the conviction appeal, and those earlier determinations were treated as properly made.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, Division 3
- Crimes Act 1914 (Cth), s 20(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Charlesworth v R [2009] NSWCCA 27; (2009) 193 A Crim R 300
- Khamis v R [2014] NSWCCA 152
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- R v ARG (Court of Criminal Appeal (NSW), 2 August 1983, unrep)
- R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep)
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Murphy [1965] VR 187
- R v O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59
- R v Parkes [2004] NSWCCA 377
- R v Sagiv (1986) 22 A Crim R 73
- R v SL [2004] NSWCCA 397
- Regina v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383