Supreme Court New South Wales Medium Neutral Citation: Application of Marcus Uusimaki pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 1019 Hearing dates: On the papers Date of orders: 5 August 2020 Decision date: 05 August 2020 Jurisdiction: Common Law Before: Wilson J Decision: (1) Application refused Catchwords: CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act – conviction following a plea of guilty to breach apprehended personal violence order – plea entered in Local Court after receiving legal advice – leave refused to vacate the plea – conviction appeal to District Court dismissed – question of adequacy of legal advice – question of propriety of previous determinations by courts – whether evidence submitted by applicant leads to a doubt or question concerning conviction Legislation Cited: Crimes Act 1914 (Cth) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: 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 Category: Principal judgment Parties: Marcus Uusimaki (Applicant) Attorney General for New South Wales (Respondent) Representation: Counsel: I Fraser (Respondent) Solicitors: VRT Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2019/00340458 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 5 February 2019 Before: Bugden LCM File Number(s): 2018/00376787 Judgment 1. HER HONOUR: This judgment deals with an application made by Marcus Uusimaki ("the applicant") pursuant to Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") for an inquiry into his conviction for a domestic violence offence. The History of the Matter 1. The background to this application is in proceedings brought against the applicant in October 2018 for an offence of using a carriage service to menace or harass, contrary to s 20(1)(a) of the Crimes Act 1914 (Cth). The applicant was found guilty of that offence with no conviction recorded against him. As a corollary of those proceedings, an apprehended personal violence order ("APVO") was imposed upon him. The order was made for the protection of a woman to whom I shall refer as Ms A, and restrained the applicant from assaulting, threatening, harassing, stalking, or intimidating Ms A, damaging her property, or approaching or contacting her. The order was current and enforceable from 11 October 2018 to 10 October 2020. (It was later extended.) 2. Some weeks after those proceedings concluded, on the evening of 6 December 2018, Ms A was at her workplace, a gymnasium in Rockdale, where she worked as a receptionist. In that capacity, she answered an incoming telephone call from a male caller who inquired whether he was recorded as banned at the gymnasium, as a consequence of having been banned from gymnasiums operated by the company that operated the Rockdale business. The caller gave his name as Marcus Uusimaki. Realising who the caller was, Ms A took note of the incoming telephone number and then ended the call. 3. She received a further 28 calls at the gymnasium from that same number. She did not answer any of the calls. 4. When a call from a silent number was received, Ms A answered it. The male caller asked why Ms A had hung up on him, and asked if she had a problem with his name. Ms A recognised the caller as the applicant, and again hung up the telephone. 5. About an hour later the applicant arrived at the gymnasium and, entering the front doors to the premises, walked straight towards Ms A, who was at the reception desk. She immediately shouted at him to get away from her, telling him, "you aren't allowed anywhere near me". Other staff heard the commotion and came to the reception area. The applicant began to turn away. A staff member escorted him out and he left the gymnasium. Ms A telephoned the police. The applicant also telephoned police. 6. On arriving, the police officers spoke to Ms A and then went in search of the applicant, whom they found several hundred metres along the road. He was observed to be crying, shaking, and obviously distressed. He was arrested for breaching the APVO. 7. The applicant was interviewed by police, and gave an account of making a number of telephone calls to gymnasiums in Parramatta and Bankstown to find out if a ban imposed on him by the Alexandria branch of Crunch Fitness gymnasiums applied at all Crunch Fitness branches. He was told that he was not banned at either Parramatta or Bankstown. 8. When he telephoned the gymnasium at Rockdale to make the same inquiry he said that he spoke to a girl with a pleasant voice who was "kind" and "flirty". He thought she sounded like someone he would like to speak to again but, when he gave his name, she hung up on him. The applicant told the officers that he telephoned the gym another eight or nine times, eventually disguising his telephone number to ensure that his call was answered. When he asked the girl why she had hung up on him, she again hung up. He decided to attend the gymnasium, arriving there at about 9pm. 9. On entering the gym he thought it looked nice and welcoming, and stood for some seconds. He said that he then saw Ms A, whom he recognised. She began to shout at him, so he turned to leave. A staff member walked him out to the driveway. He decided to telephone the police as he thought he might be in trouble. 10. The applicant was charged with breaching the APVO and refused bail by police. 11. On 7 December 2018, the applicant appeared before the Sutherland Local Court from custody with respect to the charge. The applicant was represented by a Duty Solicitor from the Legal Aid Commission. The court was told that the applicant wished to defend the charge, and proceedings were adjourned to 14 January 2019 for the service of a brief. An application for bail was made, but refused. 12. In the course of the bail application the applicant's solicitor submitted that the contact with Ms A had been unintentional, as the applicant had been unaware that she worked at the particular gymnasium. The applicant told the court, through his solicitor, that he had gone to the gym only to investigate membership of it, and had turned to leave immediately after he saw Ms A. The court was told that the applicant had a mental illness, having been diagnosed with Bipolar Disorder. 13. When the order refusing bail was announced, the transcript records the applicant as interjecting: "Oh my God. Can I please talk? I had no idea she was there." 1. He made some further comments before being returned to custody. 2. On 14 January 2019, the applicant was again before the Local Court at Sutherland, from custody. Although there is no transcript available, the Bench Sheets from the day record that the applicant, who was again legally represented, at least for a short period, entered a plea of guilty. The court's record was endorsed by the presiding Magistrate as "g now". It is not clear from the court's record whether the applicant was present in the court room when the plea was entered; the Bench Sheets refer to the applicant as "i/c", which ordinarily means in and from custody, and "N/A – PM", which I take to mean "no appearance in the afternoon". 3. A copy of the file notes made by the various solicitors who acted for the applicant at Sutherland Local Court, provided as an annexure to the affidavit of Christina Vassiliou, sworn on 19 February 2020, suggests that the applicant withdrew his instructions to the Legal Aid Commission on 14 January 2019, having previously told Ms Vassiliou that he wished to plead guilty and to act for himself. 4. The matter was adjourned for sentence to 22 January 2019, with a duty sentencing assessment report ordered. The Police Statement of Facts was not tendered; the Bench Sheets record there being "an issue". 5. On the next date the applicant appeared in person off bail. There is nothing in the court documents provided to this Court to establish when or by which court bail was granted, but the applicant asserts that it was on 14 January 2019. The transcript of the mention of the matter records some discussion between the applicant, the prosecutor, and the Bench directed to determining what plea had been entered and by whom. The applicant told the Magistrate that he had represented himself. He said: "[…] I represented myself and I pleaded guilty out of fear, I am not guilty, I do not want to plead guilty. I pled guilty because she advised me if I pled not guilty I would have to remain in gaol till April for trial and I just wanted to, I could not handle it in gaol." 1. The Magistrate took this as an application for reversal of plea, and explained the process for hearing it to the applicant. The applicant told the court: "I have evidence that the allegations are false but I did go to the gym but I did not know she was there. There is no evidence saying I could have known she was there." 1. He continued in an unfocused way to refer to an incident the previous day when he had emerged from his home to see Ms A there, which he said was "not a coincidence". He insisted that he was not stalking her and hadn't "followed her at the gym", interjecting repeatedly as the magistrate and prosecutor discussed administrative matters. 2. The application to vacate the plea of guilty was heard on 5 February 2019 before Magistrate Bugden at Sutherland Local Court. Although, at the applicant's request, the Legal Aid Commission had arranged for a male barrister to represent him, the applicant told the court he preferred to act for himself. He declined to seek the adjournment he had been advised to request. He said that he was not guilty, telling the court: "Well, I was told to – I was pressured to plead guilty when I was in custody because, you know, my Legal Aid told me if I plead not guilty I'll have to wait till April in gaol for trial, I was getting told all these things like, "You just need – if you want to get out you got to plead guilty, you can't, you can't" – I pled guilty – I pled not guilty when I first got arrested cause I wasn't - I didn't mean – what happened happened, and then when I was in remand they were just telling me, "If you want to go home you've got to plead guilty. You plead not" – my Legal Aid lawyer, she was telling me, "You won't be – you won't be eligible for bail or anything like that," you know, "You could face up to two years," it's very – scaring me, and she's, like, saying to me, "You need to plead guilty if you want to leave," so I was like, "Hey, I just want to – I want to go home, like, I've never been in trouble before and" – so yeah, I, I pled guilty on the day and I – but for some, some reason I got bail, which was surprising to me, the judge gave me bail. I asked – I said, "I just want to go home," like, "Can't handle this," and, and she gave me bail and – but yeah, I didn't do it, but I pled guilty because I got told, "If you want to go home you've got to plead guilty, you've just got to accept it, even though you haven't done anything" you know? I didn't know she was at the – I didn't – I swear to God, it was a crazy tragedy what happened, it was a tragedy what happened that day, it was-- HIS HONOUR: Sorry, what are you swearing to God? That it was crazy? ACCUSED: It was a crazy incident what happened, it was a shock, it was the most bizarre coincidence, it was – I have evidence to show, you know, it's not, it's not really a coincidence for me, I live in the area, I saw her at my station, like, two weeks ago-- […]". 1. No evidence was presented in support of the application. 2. Having heard from the applicant, the Magistrate refused the application. The matter then proceeded to sentence, despite the applicant's protests as to his innocence, and the unfairness of not permitting him to withdraw his plea of guilty. The applicant was convicted of the offence of contravening an apprehended personal violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). A community corrections order for a period of 12 months, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was imposed upon him. 3. An application for leave to appeal against conviction was filed by the applicant on 8 February 2019. In it, the applicant said: "I originally pleaded not guilty, in jail I was pressured & advised I must plead guilty to leave jail. My legal aid lawyer I feel was not on my side. She did not like that I was charged for breaching AVO on a girl. She said I would be in jail until trial in April if I pleaded not guilty. I was pressured to finalise the matter in jail." 1. The appeal was listed for call-over before the District Court at Sydney on 25 March 2019 before her Honour Judge Syme. In unresponsive answers to questions from her Honour that were intended to facilitate the listing of the appeal, the applicant said: "I basically was arrested at the gym and I didn't know she was there and I was taken to gaol and then I was told by everyone when I was in there you've got to plead guilty if you want to get out and I was freaking out and then […] But all I want really is like I didn't do it you know, I didn't – I swear to God I didn't know she was there […] And I would just like to not have a criminal record and then I can just – I'm going to move states, like I'm going to move back to Perth." 1. The applicant appeared distressed and agitated in court and asked the court to hear the matter. Her Honour indicated that she would endeavour to hear the application for leave to appeal that day if possible. As her Honour addressed administrative questions to facilitate that outcome, the applicant addressed a stream of comments to the Bench. At one point he said: "I've so much evidence to show I didn't do it, that she's lying, like why would she not call the police if I called the gym before I went […]." 1. The matter was stood down so that necessary documentation could be obtained and to allow the Crown to ready the matter. The court arranged for a solicitor from the Legal Aid Commission to speak with the applicant and assist him. It appears from the transcript of proceedings on 25 March 2019 that the applicant told the solicitor that his principal concern was the conviction entered against him. He later told the court that he wanted to be an Uber driver, but wasn't sure he could if he had a criminal record. 2. Her Honour returned to the application later in the day and heard evidence and submissions. 3. The applicant did not tender any evidence in support of his application. He gave a discursive account of events, telling the court, in effect that, Rockdale being only five train stations from where he lived, he had gone to the gym where Ms A worked by chance, without knowing that she had worked there. He claimed to have seen her at his train station only a matter of weeks after he was released from prison. He also began describing the contents of Ms A's Facebook entries, prompting the presiding judge to ask the applicant if he had accessed those pages. The applicant responded that: "It's public like if she's public like you just type her name up, you can see what she writes the first thing "I'm the human version of a tornado, I have 10 out of 10 destruction for everything in my life". 1. Her Honour stopped the applicant, telling him that he should not access Ms A's internet presence. It became clear from the applicant's responses that he had searched for Ms A via the internet, and had accessed her entries on Facebook. With the applicant insisting that accessing Ms A's Facebook pages was not a breach of the APVO, there followed a rather rambling account from him of events connected with the applicant's interest in Ms A, including the following: "[…] so I called up Rockdale and this girl answered, and I say "hey my name's Marcus, I just want to know if I can join. I was previously at Alexandria and apparently I'm banned from all UFC gyms apparently". And so she goes, "Oh, all good honey, just tell me your last name, I'll get you searched up." And then I said, "My last name's Uusimaki," and then she's hung up the phone immediately. And I was like, in shock, I was like, why did you just hang up, is she – does she – I – the first thought, honestly, I thought she was thinking I'm joking about my name because my name's Uusimaki, I thought she thought I was playing a joke on her. So, I rang back, no answer for like, two minutes. I rang back a third time, there was no answer. I rang a total of six more times, and she finally answered on like, the fifth call after about an hour, and I just – she answered and goes, "Hello, UFC Gym." I said, "Hey look, this is Marcus, is there something wrong with my name, why are you hanging up?" And then she just hung up again. And I said, you know, I'm just going to go down there, and I'm going to just go down there and find out why she's hanging up on my call, who is this person and I'm quite upset. Also, because the way we were talking it was a very nice conversation at the start, I was upset why she was hanging up. So I went down there and I found the gym and I saw a bunch of people out the front, and then I walked towards the steps and I look inside it, and the chick's like there." 1. He described his encounter with Ms A as "a big mistake, a tragedy" that "anyone with a brain" could see had been an accidental contact. 2. Having heard the applicant at length, the court concluded that there was no proper basis upon which to quash the applicant's conviction, and turned to consider whether the sentence imposed should be quashed. Her Honour was aware from the material before her that the applicant had had mental health issues in the past and was concerned to ensure that he had access to assistance. 3. Ultimately, the community corrections order imposed upon the applicant in the Local Court was set aside and, in lieu, her Honour imposed a conditional release order for a period of 10 months from 25 March 2019. 4. On it becoming clear to the applicant that the conviction against him had not been set aside he said: "A conviction is going to make me feel pretty bad honestly, I didn't want this and I don't know how I'm going to handle, handle it, that's going to affect me in what I do." 1. The applicant asked the court if Uber would be able to see that he had a conviction. The Legislative Scheme 1. Division 3 of Part 7 of the CAR Act provides for an application to be made by a convicted person for an inquiry into conviction or sentence: s 78. 2. Section 79 provides for the consideration of such applications, in the following (relevant) terms: 79 Consideration of applications (1) After considering an application under section 78 or on its own motion— (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if— (a) it appears that the matter— (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. 1. The statutory provisions provide a mechanism for administrative review where there is a basis to conclude that a conviction or sentence may have been entered contrary to proper principles. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA observed, at [52]: "History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible." 1. The principles to be applied in determining an application pursuant to s 78 were also considered by Johnson J in Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (commencing at [4]) and are as follows: 1. The court performs an administrative act in determining such an application (at [5]); 2. Determination of an application under s 78 is not intended to provide an additional avenue of appeal after the usual avenues have been exhausted (at [9]); 3. The jurisdiction exercised under Division 3 of Part 7 of the CAR Act is an administrative function which may be activated when the criminal justice system has run its course, frequently because additional evidence has come to light which may raise a doubt or question as to guilt or sentence (at [10]); 4. The powers available under s 79 are limited to the direction of an inquiry, or referral of the case to the Court of Criminal Appeal, there being no power to quash a conviction or sentence (at [10]); and 5. The nature of the jurisdiction under Part 7 allows for flexibility in the material which may be placed before the court relevant to an application (at [11]). The Application 1. In a document filed in the Registry of this Court on 30 October 2019 (with supplementary material filed over a number of months until May 2020) the applicant set out at length his account of events and of court appearances, asking the Court to set aside his conviction with respect to this matter. In his application he said: "I never got to defend this matter and I really hope this can be brought to the court. I'm so devastated I have a conviction for this. This is the only thing on my criminal record. I just hope that i can have this heard and have a chance to defend this matter in court. I also will present the sentence I recieved [sic] in November 22 where i was not convicted for the first offence when recieving [sic] the avo as i wouId like to have the same iI [sic] lawyer. I have never been in trouble and I got myself into this I feel I will have to do this in my own if I'm to defend it again. And I'm going to present all my evidence. I hope this can be heard and I can have just my chance to defend it." 1. It is not entirely clear what, if anything, the applicant asks the Court to do with respect to the finding of guilt for the offence of using a carriage service to menace or harass, since no conviction was recorded. I have treated the reference to that matter as relevant background to the application relating to the breach APVO offence. 2. Accompanying the applicant's initial written application is an (apparently incomplete) Vodafone call charge record relating to mobile telephone service 0451***242 from 1 December 2018 to 11 December 2018; a typed document of uncertain origin listing a series of times and telephone numbers; what appear to be records relating to the use of a Visa card between 29 December [presumably 2017] and 16 October (no year noted); a statement by Ms A relating to the breach APVO proceedings dated 6 December 2018; a statement from a staff member of the gymnasium at which Ms A worked; and a copy of the conditional release order entered by the applicant, without conviction, on 22 November 2018, with respect to the offence of use carriage service to menace or harass. 3. The Vodafone records do not give the name of the account holder, or any information by which the codes referred to in the records can be understood. The applicant has supplied the records as those of the mobile telephone service he was using as at 6 December 2018, and pointed to calls to a number he says is that of the Rockdale gymnasium. By handwritten annotations, he has highlighted seven entries with the event type "MOC", which refer to a transmission between the service number and the number 61295***411 on 6 December 2018: at 19:01:47, 19:04:02, 19:04:28, 19:07:56, 19:09:14, 19:13:42, 19:19:31, and, at 20:05:28, another "MOC" event between the service number and 000. In between the highlighted MOC entries are numerous other events with other codes to categorise or describe the event, the interpretation of which is obscure. 4. The list of times and telephone numbers sets out "11 calls made", without reference to a date or originating telephone service number. Of the 11 calls, 7 are to the number 0295***411. The times of the calls are given, in receding order, as: 20:19, 20:13, 20:09, 20:07, 20:04, 20:04, 20:01. 5. The Visa statements which, like the telephone material, contain no identifying details for the account holder, have been endorsed by the applicant to highlight payment entries relevant to various gymnasiums. They are: 2 Jan 2018 EFTPOS UFC GYM ALEXANDRIA 70.00 8 Jun VISA DEBIT HARDCORE GYM CARLTON 15.00 5 Jul VISA DEBIT HARDCORE GYM CARLTON 15.00 6 Jul VISA DEBIT HARDCORE GYM CARLTON 15.00 20 Jul VISA DEBIT HARDCORE GYM CARLTON 15.00 31 Aug VISA DEBIT HARDCORE GYM CARLTON 10.00 5 Oct VISA DEBIT HARDCORE GYM CARLTON 10.00 12 Oct VISA DEBIT HARDCORE GYM CARLTON 15.00 18 Oct VISA DEBIT HARDCORE GYM CARLTON 15.00 5 Nov VISA DEBIT HARDCORE GYM CARLTON 15.00 7 Nov VISA DEBIT HARDCORE GYM CARLTON 10.00 9 Nov VISA DEBIT HARDCORE GYM CARLTON 15.00 21 Nov VISA DEBIT HARDCORE GYM CARLTON 15.00 [1] 23 Nov VISA DEBIT HARDCORE GYM CARLTON 10.00 30 Nov VISA DEBIT HARDCORE GYM CARLTON 15.00. 1. Ms A's statement was made to police at St George Police Station on 6 December 2018. In it, she gave her age as 18 years and said that, although she did not know the applicant, she received a "request" from him through Facebook Messenger in August 2018. After that, Ms A stated that she received hundreds of written and voice messages from the applicant over about two months, using 10 different false names and accounts, most employing a variant of his first name. When Ms A did not respond, the messages from the applicant became aggressive and threatening, and Ms A complained to police, leading to the proceedings against the applicant for using a carriage service to menace, and the imposition upon him of the APVO for Ms A's protection. 2. Ms A stated that, in some of those hundreds of messages, the applicant sometimes referred to the fact that she worked at the Rockdale gymnasium. By reference to the period of Ms A's employment there, the relevant messages must have been among those sent in the period immediately before the applicant was charged. 3. Ms A said that, at about 8pm on 6 December 2018 she answered a telephone call at her workplace, giving her first name as part of her greeting. A male caller told her about an altercation he had had with a staff member at a Crunch Fitness gym, inquiring whether there was an issue with him at the Rockdale branch. Ms A asked for the caller's name so that she could check records. When the applicant gave his name, Ms A recognised it immediately, from the previous APVO court proceedings in which she was involved. She stated: "I completely freaked out and told him to never call the gym again, never to come to the gum [sic – gym] and that he was band [sic] and if he came within 400 metres of the gym, police would be called. I then hung up the phone. Marcus called back a total of 28 times, I know this as I recognised the number that was calling as his was the same number as the one I answered when I spoke to Marcus initially." 1. Ms A said that, about an hour later, the applicant walked in the door of the gymnasium. 2. Another employee at the gymnasium also made a statement. He had been conducting a class at the time of the applicant's arrival there, and became aware of a problem only when he saw a group of people milling about at the entrance to the gym, with another staff member pointing out "the guy […] that's been hassling [Ms A]". He spoke to the applicant and asked him what was going on. The applicant responded: "I did not know she was here, I can't handle this, the police are going to arrest me". 1. On 3 March 2020 further evidence and accompanying submissions were filed by the applicant. The evidence consisted of an affidavit from Christina Vassiliou sworn on 19 February 2020, which referred to and produced a copy of the file held by the Legal Aid Commission relevant to the proceedings against the applicant in late 2018 and early 2019 before Sutherland Local Court. 2. Ms Vassiliou deposed that she saw the applicant on 7 December 2018 when interviewing persons in custody who might require her assistance with a bail application. She took instructions from the applicant and, acting on those instructions, entered a plea of not guilty on the applicant's behalf to the charge of breach APVO, and made a bail application for him. 3. After the applicant was remanded in custody, Ms Vassiliou had a conference with him using an audio-visual link ("AVL"), on 21 December 2018. She made comprehensive file notes of the conference (and all subsequent dealings with the applicant). The applicant told her that he "wanted to plead guilty to get out of jail but say I'm not guilty". Ms Vassiliou warned the applicant that "it doesn't work like that" and explained the procedure. The applicant said he just wanted to get out and asked if he would get time served. She arranged to have another conference with him once the police brief of evidence was available. 4. On 9 January 2019, having mailed a copy of the brief to the applicant, Ms Vassiliou had another AVL conference with the applicant. As the brief had not reached the applicant, she read out salient parts of the evidence to him, advised him of the elements of the offence, the strengths and weaknesses of the police and his own cases, and told him the maximum penalty. The applicant told Ms Vassiliou that he had only telephoned the gym seven times and asked her to subpoena his telephone records. Ms Vassiliou said that could be done in readiness for any hearing. The applicant insisted that his attendance at the gym was coincidental. 5. Ms Vassiliou outlined the options as to a plea, and the possible consequences of pleading guilty and not guilty. She suggested a likely hearing date on a plea of not guilty would be April 2019, based on her knowledge of the listings at Sutherland Local Court. She advised him that, if he chose to enter a plea of guilty, he could not change his plea later. He told her that "people in custody" had told him he should plead guilty, and he could get a maximum of 6 months. Although Ms Vassiliou cautioned the applicant about comparing his matter to those of others, he told her: "'I want to plead guilty to get the matter dealt with and be released as soon as possible. I can't wait.' He told me that 'I want to speak to the magistrate and say sorry […] I want to say sorry to her' (the PINOP) [2] ". 1. Having received those instructions, and to assist with the efficient hearing of the plea, Ms Vassiliou contacted the Registry at Sutherland Local Court and advised the court that she anticipated a plea of guilty would be entered by the applicant to the charge, and noted that he would then be in breach of the release order imposed upon him by the District Court on 22 November 2018, suggesting that it would be prudent to call for those papers. 2. The following day the applicant contacted the office of the Legal Aid Commission and left a message for Ms Vassiliou, saying he "definitely does not want you to represent him" and was insistent on acting for himself. 3. On 14 January 2019, when the matter was again before the Local Court, Ms Vassiliou spoke to a colleague who was appearing at Sutherland Local Court as Duty Solicitor that day, and outlined the circumstances relating to the applicant's case. Mr Gaudiello spoke with the applicant at court and confirmed with him that he did not want the Legal Aid Commission to represent him. Mr Gaudiello subsequently sought and obtained the leave of the court to withdraw from the matter, after which the applicant represented himself. 4. Ms Vassiliou deposed that, later, after having been released from custody, the applicant contacted her office and sought to have the grant of aid to him reinstated. Ms Vassiliou referred him to the Managing Lawyer of the office at which she worked, providing her supervisor with a thorough note of the background to the matter. Aid was reinstated, on the basis that the matter would be assigned to a male private practitioner, Mr Buckman. All of Ms Vassiliou's detailed notes are annexed to her affidavit. 5. The submissions from the applicant that accompanied Ms Vassiliou's affidavit were loquacious and disputed much of her account and file entries. The applicant asserted that Ms Vassiliou told him he would be in jail until trial and: "I was completely under the impression from her words and advice that I would have more chance of getting home and escaping the danger and trauma I was facing in jail by pleading guilty […] she had no belief in my innocence and I feel she didn't want to do her best to help me in the situation, which completely pushed me into having to lose her as my lawyer." 1. The applicant says in his submissions that he entered the plea of guilty himself on 14 January 2019 and was granted bail by the Local Court pending sentence. Despite his asserted reason for the plea of guilty being a desire to be released from prison, the applicant says he did not tell the magistrate who granted him bail that he was not guilty "because I didn't dare to interrupt her". 2. The applicant contends that his plea of guilty does not reflect a true consciousness of guilt and: "Had I never been thrown into jail without any evidence what so ever of me knowingly committing the offence I would have never ever ever plead guilty to the facts. I plead guilty because my life was in the most hardest situation I have ever face whilst being on this earth. It was he [sic] most intense time of my life. I was 21 years old and I could not cope with the pressure and the fear I was dealing with. I regret tho [sic] however I could not handle it and I believe I should have taken the pain in a more braver way and kept my plea to not guilty and maintained my innocence." 1. He complains that the only way he was able to receive bail was by entering the plea of guilty himself and that, had he continued to be legally represented, he would have been left in custody. 2. The applicant added to those submissions by further emails to the Registry of the Court, on 4 March 2020, and on 11 March 2020, in which he returned to the subject of the quality of the legal advice given to him, asserting that the Duty Solicitor did not ever tell him that he could make a further bail application and, to the contrary, told him: "[…] it looked bad for me the situation I was in and that I would be facing up to 2 years for a breach avo putting me in some considerable amount of panick [sic] and shock and fear for my life". 1. He said: "It was clear to me at that moment the quickest way I could get out of danger I was in was to plead guilty". 1. On 24 April 2020, further lengthy submissions were filed on behalf of the applicant, by Mr Vizzone, solicitor. By reference to Ms Vassiliou's file notes, Mr Vizzone submits that Ms Vassiliou advised the applicant that he was likely to receive a full-time custodial sentence for the offence, and failed to advise him of further options with respect to bail after the Local Court refused the applicant bail and, further, failed to explore the applicant's mental health issues. Mr Vizzone contends that Ms Vassiliou's conduct added to the pressure on the applicant to enter a plea of guilty, compounded by the actions of Mr Gaudiello in withdrawing from the matter on 14 January 2019. 2. It is argued that the "failures" of the Legal Aid Commission lawyers "materially affected the Applicant's decision making". 3. As to the hearing of the application to vacate the plea, Mr Vizzone contends that the magistrate who heard the application wrongly understood that there was to be evidence from Mr Gaudiello as to the circumstances in which the plea was entered, and "did not allow" the applicant to give evidence on that subject, thus determining the matter on an incorrect basis. 4. Mr Vizzone is also critical of the way in which the matter was dealt with in the District Court, pointing to comments from the presiding judge concerning the severity appeal made prior to determining the application for leave to appeal against conviction, and the failure of the court to provide reasons for the decision to refuse the application. It is argued that the District Court also considered the application on the mistaken premise that the applicant had entered a plea of guilty when represented by Mr Gaudiello. 5. The applicant's submission is that he was "let down" by his legal representatives who gave him incorrect advice. This added to the stressful situation that a young man "suffering some mental illness conditions" was placed in by the criminal justice system, and led to him entering a plea of guilty that did not reflect consciousness of guilt. Thereafter, the applicant was denied a fair hearing in both the Local and District Courts by judicial officers who gave scant attention to the law or the facts. 6. It is submitted that the applicant has demonstrated that "there is serious question as to his innocence [presumably meaning his guilt]". Determination 1. Much of the material submitted by the applicant, including the submissions filed on his behalf by his legal representative, are directed to establishing the inadequacy of the legal representation provided to the applicant, and the unfairness of the way in which his applications to vacate his plea were treated by the courts. 2. It is important, however, to focus on the statutory regime under which the application is made, and the power which this Court exercises. A direction for an inquiry into an applicant's guilt, or a referral to the Court of Criminal Appeal, can only be given "if it appears that there is a doubt or question as to the accused person's guilt". That test is directed to whether the verdict, or in this case the plea, is properly supported by evidence, or whether there is some matter that could call the integrity of the plea and thus the validity of the conviction into question. 3. On the whole of the evidence I cannot reach that conclusion. 4. There are a number of important features that lead me to that view. The Plea of Guilty 1. Significantly, the applicant entered a plea of guilty to the charge. He entered that plea himself, voluntarily, having received appropriate legal advice from Ms Vassiliou, and after being given an opportunity to further discuss the matter with another lawyer, Mr Gaudiello, on 14 January 2019, an opportunity he did not take up. 2. The evidence establishes that the applicant entered that plea having weighed up the options he had, and after making a decision that his best interests were served by a plea of guilty. That is, the applicant decided that the best outcome for him was to be obtained by entering a plea of guilty, and having the matter quickly disposed of; as opposed to entering a plea of not guilty, and waiting some months for the determination of the charge, with an uncertain outcome. 3. Whilst criticisms may be made of the legal advice given to the applicant, I would not endorse them. On the basis of Ms Vassiliou's affidavit and her comprehensive file notes, the applicant received appropriate advice as to the charge against him, the evidence, and his options with respect to it. Importantly, he was cautioned against entering a plea of convenience, being advised that there was little scope for changing a plea of guilty once it had been entered. 4. I do not accept the applicant's assertion that his then legal representative advised him that he would receive a custodial penalty; that is not borne out by Ms Vassiliou's evidence or her file notes. The advice as to penalty was sensibly cautious – that, on a plea of guilty, time served might be deemed an adequate penalty by the sentencing court, but that no particular outcome could be guaranteed. It would have been foolish to give the applicant any other advice, since no particular outcome can ever be guaranteed. Ms Vassiliou's advice on the question of penalty could not reasonably be interpreted as indicating that the applicant was certain to receive a custodial sentence, and certainly not one of two years duration. 5. There is no evidence that a further bail application was discussed between Ms Vassiliou and the applicant, either following the refusal of bail, or during the AVL conferences, and I accept that the applicant was frightened by the prospect of spending further time in prison awaiting the determination of the charges. However, in the circumstances of this matter his fear of prison is not sufficient to call into question the integrity of the plea, or the conviction recorded against the applicant. 6. The applicant asserts that he had understood from his solicitor that he was facing a custodial sentence if convicted of the offence: entering a plea of guilty rather than defending the matter is inconsistent with that asserted belief. Also inconsistent with his assertions as to his motivation in entering a plea are statements made by the applicant to Ms Vassiliou of receiving advice to plead guilty from persons at the gaol in which he was detained as a means of finalising the matter and being released from gaol. 7. His plea is a significant matter. The plea of guilty was entered by the applicant after he had received correct legal advice as to the elements of the offence, the evidence against him, the strengths and weaknesses of the respective cases to be advanced, the available options as to a plea, and the possible outcomes that could follow the chosen course. The decision was the applicant's to make, and he made it, exercising a choice that he believed would lead to the best outcome for him. 8. That he later regretted his choice does not of itself vitiate the integrity of his plea of guilty. 9. The principles to be applied in considering an application for leave to withdraw a plea of guilty are relevant. Ordinarily, a court is entitled to accept, and act upon, a plea of guilty entered by an accused person as a free choice made in his or her interests. The plea itself constitutes an admission of the elements of the offence, and is considered a cogent admission of guilt: R v SL [2004] NSWCCA 397; Charlesworth v R [2009] NSWCCA 27; (2009) 193 A Crim R 300. 10. Whilst a court has the discretion to permit an individual to withdraw a plea at any time prior to the imposition of sentence, the onus is on the applicant to demonstrate that leave should be granted. That burden is a heavy one, since applications to vacate a plea of guilty are to be approached with caution: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence": Kirby J in R v Liberti (1991) 55 A Crim R 120 at 122. 1. See also R v ARG (Court of Criminal Appeal (NSW), 2 August 1983, unrep); R v O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; R v Sagiv (1986) 22 A Crim R 73 at 81; and R v Parkes [2004] NSWCCA 377. 2. In advancing an application for leave to vacate a plea of guilty, the onus is on the applicant to establish that a miscarriage of justice occurred, such that the plea should not be permitted to stand as an admission of the commission of the offence. 3. Over the years, a number of circumstances have been found to amount to miscarriage of justice. While they are conveniently summarized by Spigelman CJ in Regina v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472, and cited in Khamis v R [2014] NSWCCA 152, they are not exhaustive. Such circumstances have been held to include: * where the applicant did not understand the nature of the charge: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; * where there was a mistake or other circumstances affecting the integrity of the plea: R v Sagiv (1986) 22 A Crim R 73 at 80; * where the plea could not be regarded as a free and voluntary confession of the offence; * where the plea was induced by threats or other impropriety: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep). * where the plea was not attributable to a genuine consciousness of guilt: R v Murphy [1965] VR 187 at 191; and * where the plea was not made in circumstances indicative of a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. 1. The applicant contends that his plea is not indicative of a true admission of guilt, but there is unchallenged evidence that undermines that contention. Ms Vassiliou deposed that the applicant told her that he wanted to "speak to the magistrate and say sorry", and that "I want to say sorry to [Ms A]". His stated wish to apologise to Ms A and to the court is consistent with a consciousness of guilt. 2. Whilst heavy criticisms are made by the applicant of the Local Court magistrate and the District Court judge who heard the respective applications concerning the integrity of his plea of guilty, applying the law to the evidence, there is no real basis upon which to conclude that either application should have been successful. 3. There were irregularities in the way in which the applicant's case was dealt with in the Local and District Courts, and those irregularities could leave the applicant feeling that he had not been heard by the courts. That is to be regretted. However, in my opinion, the applicant could not, on the material available to him during the course of the Local and District Court proceedings, have discharged the heavy onus of establishing that his plea of guilty, voluntarily entered, had led to a miscarriage of justice. 4. I do not accept the submission that the applicant was so poorly advised by legal representatives in the Local Court that he was in some way forced or coerced into entering a plea of guilty to avoid lengthy incarceration, or did so under a mistaken belief as to the nature of the proceedings. On the contrary, Ms Vassiliou's evidence shows that she provided appropriate legal advice concerning the nature of the charge, the evidence available relevant to it, the maximum penalty, and the choices open to the applicant. She did not, it seems, further discuss bail with the applicant, but her instructions were terminated at an early stage of the proceedings and, even if she had advised the applicant of the possibility of applying to this Court for bail, there would inevitably have been a delay in any application being heard, leading to continued detention in the interim. That was the very outcome that the applicant was determined to avoid. 5. In my conclusion, the applicant entered a plea of guilty, having received appropriate legal advice and, apparently, having accepted further "advice" from prisoners and prison officers as to the best course to take. His assertions to Ms Vassiliou that he wanted to "apologise" to the court and to Ms A suggest that the plea can be regarded as an acknowledgment of guilt. 6. Having reached that conclusion, it is now necessary to consider the "new" evidence presented by the applicant to determine whether that evidence is such as to cast doubt over the propriety of the conviction entered against the applicant. Other Evidence in Support of the Application 1. The only relevant new evidence that was not before either the Local or District Courts, and which is relied upon to satisfy the test at s 79 of the CAR Act, is the material filed in support of the present application. 2. The Visa records as to gym attendances, inferentially those of the applicant for 2018, do not advance the applicant's case. They show that the applicant last attended a gymnasium at Alexandria on 2 January, presumably 2018. Inferentially, he was banned from attending Crunch Fitness gyms from that date. Thereafter, he was a reasonably regular attendant at a gymnasium in Carlton, about 20 minutes travel from his home in Marrickville. There is no evidence to establish why the applicant formed an interest in changing the gymnasium he had been attending throughout 2018, and no satisfactory evidence to explain his choice of the gym at Rockdale. The applicant was living at the time at Marrickville, and there would certainly have been a gymnasium closer to his home than the Rockdale gym. A gymnasium at Rockdale is not an obvious choice for a person living in Marrickville. 3. The telephone records are of most significance. If they are accepted as the call records for the telephone service that the applicant used on 6 December 2018, and it is accepted that the number asserted by the applicant to be that of the Rockdale gymnasium is the correct number, they appear to show that the accused made only seven calls on the evening of 6 December 2018, rather than the 28 Ms A complained of. For present purposes, I accept those premises, and set aside my concerns as to the absence of evidence to establish the meaning of the codes used in the records, and thus the inability to fully to comprehend the records. 4. Had there been a defended hearing, or were there to be one, this evidence could have been put to Ms A, as relevant to her credit. It is capable of casting real doubt upon the reliability of her assertion that 28 calls were received from the number she believed to have been them. 5. However, the precise number of calls made to the gymnasium were not central to the prosecution case; or to the applicant's proposed defence, being his knowledge of whether or not Ms A worked at the gymnasium. 6. With respect to that issue, what is of most relevance is that the applicant made more than one or two calls to the gymnasium. 7. Common sense suggests that an individual would not persist in repeatedly telephoning a business from which he believed he may have been banned, after the business ended his first, and even second, telephone call peremptorily. 8. To persist in making seven calls, and then to attend the business, points to a motivation other than a mere inquiry as to a banning order. The persistence of the applicant in repeatedly telephoning the gymnasium, whether he did so 7 times or 28 times, does not cast doubt on the prosecution case, or greatly advance that of the applicant. 9. As I understand the prosecution case against the applicant, it is the attendance at the gymnasium that was relied upon as the act which breached the APVO; the preceding telephone calls simply set the scene, providing context for what followed. 10. There is no doubt that the applicant attended the gymnasium that evening after making a number of telephone calls; he does not dispute that. His motivation in so doing is explained on the prosecution case; the applicant's account of his purpose in attending does not to my mind raise a doubt about that aspect of the matter. In her statement, Ms A said that the applicant had commented to her about her workplace in some of the hundreds of messages he had sent to her prior to being charged with using a carriage service to menace. That evidence, if accepted, would establish the applicant's knowledge. So too would her statement that she told the applicant not to come near the gym or police would be called before hanging up the telephone on 6 December 2018. 11. Supportive of a conclusion that the applicant was aware that Ms A worked at the Rockdale gymnasium, and went there to see her, are other pieces of circumstantial evidence. 12. On the applicant's own account, he had been banned from gymnasia operated by Crunch Fitness. In such circumstances, it is difficult to understand why he would attend a Crunch Fitness gym located at some distance from his home, after a receptionist had repeatedly terminated his calls to it, and when he had been regularly attending another gymnasium since early 2018. 13. That he maintained an active interest in Ms A at a time well after the Local Court proceedings is evident on his own statements during the District Court proceedings, to the effect that he had searched for, read, and could even quote Ms A's Facebook posts. It is immaterial if that was a breach of the APVO or not; the relevance of the applicant's assertion is that he continued to monitor Ms A online, pointing to a continuing interest in her that could readily have manifested in a visit to her place of work. 14. These features in my opinion point to the applicant's knowledge of Ms A's place of work at the time of his attendance there. Nothing advanced by him leads me to doubt that. Mental Health 1. The only other matter raised by the applicant is his mental health; Mr Vizzone refers to the applicant's mental health as a feature relevant to the determination of the present application. The difficulty with that is that there is no real evidence about that aspect of the matter. Ms Vassiliou made a note of the applicant saying he was "Bi-polar", and there is a suggestion in the police documents prepared for the Local Court that the applicant suffered from an obsessive compulsive disorder. The applicant told the District Court that he did not have any mental illness. 2. On that uncertain evidence, I cannot conclude that the applicant had any illness that could have materially affected his understanding of the legal advice given to him, or his capacity to determine the course he should take. Nor is it established that there was a realistic prospect of the dismissal of the charge pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Conclusion 1. I do not conclude that the information submitted by the applicant is such as to raise a doubt or question over his conviction. Orders 1. The order of the Court is: 1. Application refused. ********** Endnotes 1. The day is cut off in the Court's copy of the transaction record, but the entry appears under others for "21 Nov". 2. Person in need of protection. 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: 05 August 2020