Citation: Regina v SL [2004] NSWCCA 397 revised - 23/11/2004
Court: NSW Court of Criminal Appeal
Date: 23 November 2004
Judge(s): Giles JA; Buddin J; Smart AJ
Background
The appellant, a man of Tongan background held in immigration detention at Villawood Detention Centre, faced a fourteen-count indictment in the District Court. The charges included aggravated sexual intercourse without consent, sexual intercourse without consent, abduction with intent to carnally know, assault offences, and incest. The Crown accepted pleas of guilty to two incest counts in full discharge of the indictment, and the appellant was convicted. Sentencing had not yet occurred at the time of this appeal.
The appellant maintained that, prior to entering his pleas on the second day of trial, he had been told by his barrister and a solicitor's clerk that he would not be imprisoned and would be "back out with his kids" if he pleaded guilty. He also alleged that he was told he had to plead guilty if he wanted to see his children again. He claimed he had protested his innocence throughout.
His barrister and the solicitor's clerk gave a substantially different account of the cell conferences. The barrister had approached the Crown Prosecutor about a plea deal the afternoon before the pleas were entered, without having first obtained instructions from the appellant to do so.
Legal Issues
- Whether the guilty pleas were entered in circumstances amounting to a miscarriage of justice, on the basis that they were not free, voluntary, and made pursuant to a genuine consciousness of guilt.
- Whether the barrister's conduct, including approaching the Crown without instructions, advising the appellant that the plea offer was in his interests, and seeking written instructions after the appellant initially declined, constituted improper pressure vitiating the pleas.
- Whether it was necessary, in the circumstances, to consider whether there was a real question about the appellant's guilt as a further precondition to allowing the appeal.
Decision
The Court rejected the appellant's account of what occurred in the cell conferences. His evidence that he was promised he would not be imprisoned, and that he was told he must plead guilty to see his children, was not accepted. The Court found that the appellant had made an informed choice to plead guilty in order to avoid the significant risk of lengthy imprisonment if convicted on the far more serious charges remaining in the indictment.
On the question of the barrister's conduct, the Court found that the matters relied upon by the appellant did not, on the evidence, affect his decision to plead guilty. The Court also found that, in any event, the conduct complained of did not constitute improper pressure. Approaching the Crown Prosecutor about a possible plea arrangement, advising the client that the offer was in his interests, and seeking written instructions when the client initially declined were not actions that rendered the pleas involuntary.
The Court concluded that the pleas were the product of a free choice made by the appellant in his own interests. No miscarriage of justice was established. Because that threshold finding was not made out, the Court held it was unnecessary to proceed to the further question of whether there was a real question about the appellant's guilt, noting that such a question only arises once circumstances of miscarriage of justice have first been demonstrated.
Orders Made
- Appeal dismissed.
Key Takeaways
- A plea of guilty will not be set aside on the ground of miscarriage of justice where the appellate court is satisfied the accused made a free and informed choice, even if the accused alleges that representations were made by legal representatives about likely sentencing outcomes.
- Where an accused elects to plead guilty to lesser charges to avoid the risk of conviction on more serious charges carrying substantially higher maximum penalties, that pragmatic calculation does not of itself render the pleas involuntary.
- A barrister's approach to the Crown Prosecutor about a plea arrangement without prior instructions, combined with advice to the client that the offer was in his interests and a request for written instructions after initial refusal, did not amount to improper pressure in the circumstances of this case.
- The Court of Criminal Appeal confirmed that the question of whether there is a real question about guilt is a further, separate consideration that only becomes relevant once circumstances amounting to a miscarriage of justice have first been established.
- In dismissing the appeal, the Court declined to admit late-tendered documents concerning the DNA evidence and a birth certificate, finding those materials were tendered only to address the "real question of guilt" consideration, which had not been reached.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 291
- Crimes Act 1900 (NSW), s 78A
Cases:
- Meissner v The Queen (1994) 184 CLR 132
- R v Maxwell (1995) 184 CLR 501
- R v Hura (2001) 121 A Crim R 427
- R v Toro-Martinez (2000) 114 A Crim R 533
- R v Khan [2002] NSWCCA 521
- R v Wilkes [2001] NSWCCA 97
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Sagiv (1986) A Crim R 73
- R v O'Neill (1979) 2 NSWLR 582
- R v Chiron (1980) 1 NSWLR 218
- R v Murphy (1965) VR 187
- R v Davies (1993) 19 MVR 481
- R v Cincotta, CCA, 1 November 1995