New South Wales District Court CITATION: R v Susan SAMY [2008] NSWDC 377 JUDGMENT DATE: 23 June 2008 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The applicant is granted leave to withdraw her plea of guilty CATCHWORDS: CRIMINAL LAW - application for change of plea - analysis of relevant case law - applicant bears burden of proof - application to be approached cautiously and with circumspection - factual dispute - plea not attributable to a genuine consciousness of guilt Maxwell v The Queen (1996) 184 CLR 501 Regina v Hura (2001) 121 A Crim R 472 CASES CITED: Regina v Liberti (1951) 55 A Crim R 120 Regina v Sagsagiv (1986) 22 A Crim R 73 Regina v Wilkes (2001) 122 A Crim R 310 PARTIES: Regina Susan Samy FILE NUMBER(S): 2007/21/3080 COUNSEL: Ms Orman-Hales (for Ms Samy) SOLICITORS: Mr Cooley for the NSW Office of the Director of Public Proseecutions JUDGMENT 1. The issue in this case is whether I exercise my discretion to set aside a plea of guilty entered by Ms Susan Samy to a charge of malicious wounding. On 11 May 2007 Ms Samy pleaded guilty to a charge that at Yagoona on 6 October 2006 she maliciously wounded Chandra Pal. Ms Samy now asks me through her counsel, Ms Orman-Hales, to set aside that plea of guilty. I have the undoubted discretion to set aside the plea. The question is whether I exercise that discretion or not. 2. The relevant principles are clear. In Regina v Sagsagiv (1986) 22 A Crim R 73 Lee J, as his Honour then was, speaking on behalf of the Court of Criminal Appeal said this: "The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceeding." In Regina v Liberti (1991) 55 A Crim R 120 Kirby J, when his Honour was President of the Court of Appeal, said on behalf of the Court of Criminal Appeal that an application to set aside a plea is approached by the courts: " 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 the relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence." In Regina v Hura (2001) 121 A Crim R 472 Spigelman CJ, delivering the judgment of the Court of Criminal Appeal, noted that successful applications to set aside a plea of guilty were exceptional. Circumstances would normally involve a miscarriage of justice. His Honour identified a number of circumstances where such applications have been granted in the past. Those circumstances include where the plea was not a free and voluntary confession and where the plea was not really attributable to a genuine consciousness of guilt. In Regina v Wilkes (2001) 122 A Crim R 310 the Chief Judge at Common Law, Wood J, speaking on behalf of the Court of Criminal Appeal referred to a passage from the joint judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501. Dawson and McHugh JJ had said as follows: " The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage." 3. In this case Ms Orman-Hales argues on behalf of her client that the plea which was entered was, in the circumstances, not really attributable to a genuine consciousness of guilt. The events of 6 October 2006 may be briefly described. The allegations are that Susan Samy, armed with knives, attacked and wounded a number of people. As a result of those events she was charged with a number of offences. At least one of the offences with which she was originally charged was attempted murder. In addition she was charged with maliciously wounding Chandra Pal with intent to do grievous bodily harm. An alternative charge in respect of Mr Chandra Pal was that of maliciously wounding him. It is to that charge that she pleaded guilty on 11 May 2007. 4. The events of 6 October 2006 are the subject of a number of exhibits which were tendered by Ms Orman-Hales. Amongst the exhibits were three statements by persons who were present, including victims of the alleged assaults. Mr Chandra Pal's statement claims that he saw Susan Samy on the ground with his wife. Susan Samy was holding a knife. He ran to his wife's help and Susan Samy swung the knife at him which cut the inside of his left thumb causing it to bleed. He then pinned her to the ground. 5. Another account is given by Mr Chandra Pal's wife, Saraswati Pal. Ms Saraswati Pal said that Susan Samy was holding a knife which she described as a meat cleaver. Ms Saraswati Pal wrestled her to the ground. Then her husband came and helped her to hold Susan Samy down and to get the knife from her. Ms Saraswati Pal said that she was holding her down on her back and her husband was near her head and their nephew was holding both her legs. 6. The person referred to as the nephew is a man named Rajneel Kumar. In his statement he said that Susan Samy was holding his aunt, Ms Saraswati Pal, and brandishing a butcher's knife towards her. Mr Kumar said he saw Chandra Pal had overpowered Susan Samy and had held her to the ground with the help of his wife. Mr Kumar then grabbed her by the legs and held her down. 7. Another account of events on 6 October 2006 is provided by exhibit 3. Exhibit 3 is a document with the heading "Statement of Agreed Facts, DPP v Susan Samy". It is unsigned. It was tendered in these proceedings by Mr Cooley, who appears for the respondent Director of Public Prosecutions, as the document referred to at relevant times in court as the Agreed Facts. I note, as was drawn to my attention by both counsel, that the document is undated and unsigned. The document records that Mr Chandra Pal ran to help his wife who was on the ground with the offender. The document records that the offender swung the knife at Mr Chandra Pal who suffered a wound to his left thumb. Mr Chandra Pal and his wife, with the help of Rajneel Kumar, then overpowered and subdued the offender and disarmed her. 8. Those accounts are all reasonably consistent in my opinion. They are also consistent with the sequence of events being that Mr Chandra Pal was wounded first and then with the help of the others overpowered and pinned Ms Samy to the ground. However, that version of the sequence of events is challenged in these proceedings which were commenced by a Notice of Motion dated 14 April 2008. They are challenged in the affidavit of Ms Susan Samy sworn on 14 April 2008 and in her evidence which she gave before me today. 9. Her affidavit gives an account of her conversations with her legal practitioner on 11 May 2007, the day that she pleaded guilty. Ms Samy asserts in her affidavit that on that day she told Mr Townsend, who was representing her at the time, that she did not know how Chandra Pal got injured. She told him that by the time Chandra Pal came into the incident she was on her stomach on the ground. She was being held down by Saraswati Pal and Mr Kumar. She says that Mr Townsend advised her that the circumstances could be seen as being reckless. By this I understand that Ms Samy is saying that she was receiving advice from Mr Townsend to the effect that despite what she was telling him the likelihood was that she would be found guilty of maliciously wounding Chandra Pal based upon the legal conception of recklessness. 10. In her affidavit Ms Samy said that she did not understand what Mr Townsend was saying to her but she signed the document. I infer that the document was a form of instructions to plead guilty. Ms Samy elaborated in evidence before me today on the circumstances of her signing those instructions. She said that she signed it blindly without knowing. She said that Mr Townsend kept repeating that the circumstances were consistent with recklessness. She said in her evidence that she was forced to sign the document in that she was told to do it by Mr Townsend. She said she was very nervous and signed blindly without knowing. She said that she knew that she had not hurt Chandra Pal but she signed the document and pleaded guilty because she was told to by Mr Townsend. The account given by her in the affidavit and in court before me is not consistent with Ms Samy being guilty of the offence that she was charged with. It is in fact inconsistent. 11. Ms Samy, it is agreed, shoulders the burden of proof in satisfying me that I ought to set aside her plea of guilty. For the reasons which I have referred to in the authorities, applications such as this must be approached cautiously and even with circumspection. 12. It is of course in Ms Samy's interests to give the account which she gives in the affidavit and in the evidence before me. There is no evidence before me from Mr Townsend. In that sense her account of the conversation with Mr Townsend is uncorroborated. However, that account does secure some support of a transcript of evidence of an appearance in court by Ms Samy some three months after she pleaded guilty. She was back in court, this time at Campbelltown before his Honour Judge Keleman SC. It was Friday 10 August 2007. The matter had evidently been listed for the hearing of the sentence proceedings. The proceedings did not commence for reasons that are not directly relevant. However what is relevant to this application is something that was said to his Honour by Mr Townsend who still appeared for Ms Samy at that stage. Mr Townsend told his Honour that his client "raises a significant and important factual dispute that I had understood had been resolved but in fact, and in absolute fairness to her, she did not tell me about this early on when I first spoke to her. I thought it had been resolved. She is insistent, as is her right, that she would not accept one particular aspect of these facts that is quite important. I am asking for some time to discuss the matter with my friend to see whether or not there would be any chance, or if the Crown would be prepared to amend the facts. And if not it may be a matter that we do need to go into evidence about over this quite important factual dispute." The representative of the prosecution indicated that the issue referred to by Mr Townsend was not conceded and there was then discussion of the need to call evidence. The matter stood in the list whilst Mr Townsend saw his client again. It was adjourned a couple of times and then Mr Townsend returned to his Honour and indicated that " Ms Samy is not going to dispute the facts ." The facts referred to by Mr Townsend are those which are exhibit E before me. 13. The possibility of a dispute over the facts had been anticipated by the representative of the Crown before it was raised by Mr Townsend. The prosecutor said that the case may be one where there may be some dispute and where the parties may need to go into evidence in some aspects. 14. I will now make the following observations and findings. First I do not find Ms Samy was forced to sign the document by Mr Townsend. Such a finding would of course represent serious professional misconduct. The assertion is uncorroborated so far as that particular allegation is concerned and I have not heard any evidence at all from Mr Townsend. 15. Secondly I do find that at the time of signing the instructions to plead guilty Ms Samy was very nervous. Such a finding is consistent with the feelings which anyone would have in Ms Samy's position at such a time. In addition I find that she signed the document without properly turning her mind to the contents of the document and its significance. 16. The findings which I have made about the circumstances in which she signed the document are in my opinion supported by the transcript references which I have already referred to. Although we do not know what the factual dispute was that was being referred to by Mr Townsend and the prosecutor, it is apparent that the question of what facts Ms Samy was prepared to plead guilty to was attended by some doubt. The parties were talking about the need to go into evidence and that circumstance changed when Ms Samy decided to plead guilty. Ms Samy's assertions before me, both in the affidavit and in evidence, and my findings about those assertions are supported by the transcript of what occurred in court on 10 August 2007. When I say supported, they are supported to some extent. Her account is not directly corroborated but her assertion which was made in evidence before me today that she knew she had not hurt Chandra Pal is supported by the discussion about the factual basis of her plea which occurred in court on 10 August 2007. 17. Returning to the principles which I must apply in determining an application such as this I am not satisfied that the plea was unequivocal. Given that the onus is on the applicant, I should perhaps more accurately say that I am satisfied that the plea of guilty was equivocal. It was attended by a degree of uncertainty and by nervousness and preoccupation on the part of Ms Samy. There was still some confusion some months later about the facts that she was prepared to plead guilty to. It is significant in this regard that Exhibit E, the document representing the agreed facts, was not signed by either of the parties. I am satisfied that the circumstances in which instructions were taken and in which the plea was entered in court suggest that it was not a true admission of guilt. That suggestion, as I said, is corroborated to some limited extent by events which occurred in court some months later. Another way of putting this is that the circumstances indicate that the plea of guilty was not really attributable to a genuine consciousness of guilt. 18. In my opinion therefore it is appropriate that the plea be set aside and that Ms Samy be given an opportunity to contest her guilt or otherwise of the offence. I should add that Ms Orman-Hales has convinced me that there is some arguable doubt attending the question of her guilt. There is some confusion over the number of knives and the identification of the knives. There is evidence of a possible source other than the knives of Mr Chandra Pal's wound. Accordingly I propose to allow the application. 19. Accordingly I determine this application by granting to the applicant, Susan Samy, leave to withdraw her plea of guilty entered on 11 May 2007 to the charge that on 6 October 2006 at Yagoona she maliciously wounded Chandra Pal. HIS HONOUR: Anything else? COOLEY: I've had some discussions with my friend and wonder whether the matter might be stood over for mention to fix a trial date at Campbelltown District Court this Friday 27 June. HIS HONOUR: That's the mention date is this Friday? COOLEY: Yes your Honour. HIS HONOUR: Do you agree with that Ms Orman-Hales? ORMAN-HALES: Yes I do. Yes I'd ask that that take place if it's at all possible. HIS HONOUR: In addition I direct that these proceedings, namely the prosecution of Ms Susan Samy, be stood over for directions to this court sitting at Campbelltown this Friday 27 June 2008. Exhibits can stay with the file. HIS HONOUR: Is there anything else? Is bail applied for Ms Orman-Hales? ORMAN-HALES: No your Honour. HIS HONOUR: Bail is not applied for and refused. Does anyone want Ms Samy to be at the directions hearing? ORMAN-HALES: Yes your Honour, just because the issue is she's housed at Mulawa and it would be of assistance so we can just know what date we're working towards. HIS HONOUR: I don't think I need to issue an order under section 77 of the Crimes (Administration of Sentences) Act do I because she's bail refused but I will anyway. ORMAN-HALES: With respect in my submission it seems to be the usual practice that Ms Samy has been brought in under section 77's in the past and I would just like her to be there, only if that's suitable to your Honour. HIS HONOUR: I'll issue the - you don't disagree do you Mr Cooley? COOLEY: No not at all your Honour, if only for abundant caution. HIS HONOUR: Under section 77 of the Crimes (Administration of Sentences Act) 1999 I am satisfied that it is necessary that Ms Susan Samy should attend before the District Court on Friday 27 June 2008 for the purposes of directions being given in her prosecution and that her absence may prejudice her rights. Accordingly I direct by order the Commissioner for Corrective Services to cause Ms Samy to be produced at the District Court at Campbelltown on that day by 10.00 am. ********** 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.