R v PAKISTAN [2001] NSWCCA 49

New South Wales Court of Criminal Appeal

CITATION : R v PAKISTAN [2001] NSWCCA 49 FILE NUMBER(S) : CCA 60280/00 HEARING DATE(S) : 28/02/2001 JUDGMENT DATE : 28 February 2001

PARTIES : REGINA v Nissan PAKISTAN JUDGMENT OF : Heydon JA at 38; Barr J at 2; Smart AJ at 39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/71/0091 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : Crown: E Wilkins Applicant: In Person SOLICITORS : Crown: SE O'Connor CATCHWORDS : Criminal Law - appeal after plea of guilty - whether plea entered under improper pressure from legal advisers R v Boag (1993) 73 A Crim R 35 CASES CITED: R v Chiron (1980) 1 NSWLR 218 R v Ferrer-Esis (1991) 55 A Crim R 21 R v Lars, Da Silva & Kalanderian (1994) 73 A Crim R 91 DECISION : Leave to appeal against conviction refused.

IN THE COURT OF CRIMINAL APPEAL 60280/00

HEYDON JA BARR J SMART AJ

Wednesday, 28 February 2001 REGINA v Nissan PAKISTAN JUDGMENT

1 HEYDON JA: I would ask Justice Barr to deliver the first judgment. 2 BARR J: The applicant, Nissan Pakistan, seeks leave to appeal against convictions and sentences entered in the District Court. On 7 February 2000 he pleaded not guilty before a jury to one count that on 24 July 1999 at Lavington he had sexual intercourse with Kristy Lee O'Connor without her consent, knowing that she was not consenting and that at the time of the commission of the offence he maliciously inflicted actual bodily harm upon her and to one count that at the same time and place he had sexual intercourse with Miss O'Connor without her consent knowing that she was not consenting. 3 The trial began and on the third day the applicant, through his counsel, asked to be arraigned again. When that was done he pleaded guilty to both charges. The jury were invited to return a verdict in view of the change of plea but were unable to reach a unanimous decision. Accordingly, the trial judge, Judge Gibson QC, discharged the jury and convicted the applicant of both offences. 4 On 18 February 2000 his Honour imposed on the first count a term of imprisonment of five years comprising a minimum term of one year nine months and an additional term of three years three months. On the second count his Honour imposed a concurrent fixed term of one year six months. His Honour recommended the deportation of the applicant, who was a native and resident of New Guinea. 5 The applicant draws the attention of the Court to the circumstances in which he changed his pleas. 6 The Court will go behind a plea of guilty and hear an appeal against a conviction where there may have been a miscarriage of justice: R v Chiron (1980) 1 NSWLR 218. The applicant bears the onus of showing that he should have leave to argue the appeal: R v Boag (1993) 73 A Crim R 35, R v Ferrer-Esis (1991) 55 A Crim R 21. 7 The principles which govern the grant of leave to appeal against a conviction following a plea of guilty are the same as those which govern the grant of leave by the court at first instance to withdraw a plea of guilty. Leave will readily be granted where there has been a mistake or other circumstance affecting the integrity of a plea of guilty as an admission of guilt. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is entitled to exercise its discretion against the grant of leave. 8 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 as the most cogent admission of guilt that can be made: R v Lars, Da Silva & Kalanderian (1994) 73 A Crim R 91 at 109. 9 By common consent it was the effect of communications that took place between the applicant and his legal advisers on the third day of the trial that gave rise to his changes of plea. By that time the complainant had given evidence which may be summarised thus. She lived in Albury and met the applicant at an hotel in June 1999. They played pool together and had drinks. He accompanied her home and she invited him in. They had more to drink and played music. There was only one bed in the premises and when the complainant went to bed she permitted the applicant to use it as well. However, she kissed him good night and made clear by her conduct that she was not interested in sexual relations. 10 After that she and the applicant saw each other from time to time. They also spoke on the telephone. He invited her out but she declined his invitation. 11 On the evening of Friday 23 July 1999 the complainant declined an invitation to go out with the applicant. She spent the evening with a girlfriend at home and eventually went to bed. Her night clothes included a pair of red boxer shorts. At 6.40 am the applicant telephoned her house and asked whether the complainant would come and collect him and whether he might stay at her premises. She declined the invitation to collect him but said that he might come and stay. He arrived there at about 7.40 am. The complainant let him in. She got into bed because she wanted to continue sleeping. He got into bed with her and put his arm around her. She told him to go away if he were going to behave in that manner. The applicant responded by pushing and then punching the complainant. A violent struggle ensued during which he tried to get the better of her and she tried to fend him off. Her face and chest were badly bruised. She was calling for him to stop, banging on the wall and calling for help. Eventually the complainant ran out of strength and decided that the best way to cope with the circumstances was to pretend that she was dead. After that the applicant twice had penile-vaginal sexual intercourse with her and ejaculated. During the attack the boxer shorts were ripped. 12 A neighbour heard the complainant's screams and calls for help and telephoned the police. Police officers arrived at the complainant's flat during or immediately after the applicant's second act of sexual intercourse. They noticed that his face was scratched. They noticed that the complainant was dishevelled and had blood on her face. She made immediate complaint of rape and the police arrested and removed the applicant. 13 The applicant was formally interviewed by police officers and admitted having had sexual intercourse and then having had a fight with the complainant. He admitted hitting her. 14 Evidence of all these matters had been given by the middle of the morning of the third day of the trial. The Crown case was that the red boxer shorts had been torn by the applicant during his attack on the complainant. The defence case was that sexual intercourse was consensual and that the complainant had not been wearing that garment at any relevant time. The Crown tendered a certificate from an analyst the effect of which was that a portion of material removed from the red boxer shorts bore semen. Defence counsel objected to the tender of the certificate, which apparently came as something of a surprise, and asked for the trial judge to grant a short adjournment so that the matter could be considered. 15 The conversation the subject of dispute in this application took place during that adjournment. 16 The applicant's case had been foreshadowed during the cross-examination of the complainant. The court knew if the applicant gave evidence he would say that he had had consensual intercourse and had ejaculated. There was nothing he could do to change that. Although there was no indication that the certificate would prove that the semen on the shorts was the applicant's it did give strong support to the complainant's version of events. The complainant was also supported by the unchallengeable evidence about her own injuries and to the efforts she had made to call for help and by what she said to the police when they arrived. It was supported by evidence of scratches on the applicant's face and by the presence of the applicant himself and no other man when the police came. The evidence of the certificate made a strong case substantially stronger. It is not difficult to understand why his counsel and solicitor considered it appropriate to give the applicant the opportunity of reconsidering his earlier instructions. 17 Mr Christopher Charles Halburd was the applicant's solicitor throughout the preparation for the trial, the trial and the sentencing proceedings. Mr Halburd has sworn two affidavits which have been read in this application and has not been cross-examined. 18 According to Mr Halburd he had a conference with the applicant on 20 November 1999 and some signed instructions were brought into existence. The document, which is an annexure to the affidavit of Mr Halburd of 21 February 2001 bears a date 20 October 1999, and I take it that the reference to "November" is an error. The document appears to be in Mr Halburd's handwriting and says this: ON A PLEA OF NOT GUILTY I have been informed by Mr George Ritchie, Public Defender and by Mr Chris Halburd, Solicitor that if I were to plead guilty to these charges or either of them then that would be a matter that the Judge would have to take into account when passing sentence on me and would normally result in a lesser penalty being imposed than if the matters proceed to a trial. I wish to plead not guilty to both charges which were read in full to me yesterday. 19 The document bears a notation to the effect that the contents were read to the applicant by Mr Clement Chikalli in the Pidgin English language. 20 There was a conference between Mr Halburd and the applicant in January 2000 at the Correctional Centre at Junee where the applicant was being held. 21 On 7 February 2000, the first day of the trial, a further document was brought into existence following a conference between Mr Halburd and the applicant. Mr Stanley Tandawai, the applicant's cousin, was also present. The text is as follows - I Nissan Pakistan remember telling my Solicitor Chris Halburd when I saw him at Junee gaol in early January that on the night that Kristy says I raped her I did not have sex with her. I told Mr Halburd that because someone at gaol told me it would be better for me. It was not true I did have sex with Kristy. She agreed to have sex with me and then we had a fight which caused the injuries and the police being called. I am aware that I could object to the conversation that I had with the police on the morning of the 24th July 1999 going before the jury. The advantage of it going before the jury or not going before the jury have been explained to me. Similarly the disadvantages of each approach have been explained. I want the conversation to go before the jury because it is what happened although I did get some of the words wrong in my answers. During this conference my cousin Stanley Tandawai has interpreted and also interpreted this document before I signed it. 22 The document bears the signature of the applicant. 23 During the conference on the third day of the trial Mr Halburd and Mr Ritchie and Mr Tandawai were again present with the applicant. As before, Mr Halburd brought a document into existence in his own handwriting and it was signed by the applicant. The contents are as follows: I Nissan Pakistan instruct my legal representatives that I wish to change my plea from not guilty to guilty in respect of the following charges:- (i) That on the 24th of July 1999 I did have sexual intercourse with Kristy O'Connor without the consent of Kristy O'Connor knowing she was not consenting and at the time of committing the offence I did maliciously inflict actual bodily harm on Kristy O'Connor. (ii) On the 24th July 1999 I did have sexual intercourse with Kristy O'Connor without the consent of Kristy O'Connor knowing she was not consenting. Present in this conference apart from myself are G Ritchie (Counsel), C Halburd (Solicitor) and Stanley Tandawai who is interpreting as we go along. Stanley is my cousin. I am aware that I can continue with my trial before the jury. I am aware that at approximately 11 o'clock today the ninth day of February 2000 an analysis certificate was handed to the Crown which indicated that semen was found on red boxer shorts. These red boxer shorts have a ripped crotch. The Complainant alleging that I ripped the crotch out of them. When I spoke to the police and when I spoke to my legal representatives I told them that she was not wearing red boxer shorts that night. That I didn't rip them. I told them that she was wearing underpants or panties and that I asked her to take them off and she did. When I told the police and my legal representatives the above I was lying. I acknowledge that Kristy O'Connor told the truth when she gave evidence. I did hop in her bed and I tried to touch her and she told me to stop. I persisted and she told me "if you're going to be like that you can piss off". She continued to fight me off and then I started punching her. I punched her about the face the neck the chest and body area. She tried to protect herself and scratched my face. I ripped the crotch out of her red boxer shorts. After a while she stopped resisting and I pulled her legs apart and put my penis in her vagina. I had intercourse and after a little while I ejaculated. I moved her to another position and continued having intercourse. There was a knock on the door and the police had arrived. I am aware that by changing my plea to guilty the Judge will have no alternative other than to impose a lengthy gaol sentence on me. I enter this plea of guilty of my own free will. Stanley has been with me throughout the conference and I understand the consequence of entering the plea. I repeat that what I initially told my legal representatives was a lie and that Kristy O'Connor is telling the truth. 24 There were subsequent conferences between Mr Halburd and the applicant during submissions on sentence on 10 February 2000 and on 18 February. On the latter day the applicant indicated a desire to change his plea on each count to one of not guilty. Mr Halburd arranged for the applicant to be interviewed by another barrister, Mr Blackman. As it turns out, an affidavit of Mr Blackman read to this Court and the evidence of the applicant himself shed no light on what was said at that conference. However, following the conference, the applicant was content to proceed to sentence, having Mr Halburd continue to represent him in the proceedings. 25 The complaint that the applicant makes is as follows. He says first that his understanding of English was not good and that during the conference on 9 February, instead of calling his interpreter to come to the interview room, his solicitor called in his cousin, Mr Tandawai, who was only eighteen years of age, to interpret. Mr Tandawai knew nothing about the court system and was too young to say anything. He says that Mr Ritchie told him that he had to plead guilty because the evidence was strong. He says that Mr Ritchie said that if the applicant did not plead guilty the jury would find him guilty and he would be sentenced to fifteen to twenty years' imprisonment. He says that Mr Ritchie pointed out that there had been no other man in the complainant's premises at the relevant time, that it was the third day of the trial and that there was nothing that Mr Ritchie could do to help him. Therefore he had to plead guilty. Mr Ritchie said that the evidence showed that the boxer shorts were torn, so the applicant would have to say something about that. The applicant said five times that he did not want to plead guilty. At that Mr Ritchie repeated everything that he had already said and that the applicant would have to say something before he and Mr Halburd left the room. Mr Ritchie said that if the applicant pleaded guilty he would tell them - which I take to mean the prosecution - to drop one charge. He repeated that he could do nothing further for the applicant and that the jury would find him guilty. The applicant was crying and again and again told Mr Ritchie that he did not want to plead guilty for a crime that he had not committed. He was again told he would have to say something before Mr Ritchie and Mr Halburd left the room. Eventually he decided to plead guilty but that was a result of all the forceful words which had gone before. 26 The applicant gave evidence before this Court and made reference to the pressure that he felt during the interview with Mr Ritchie and Mr Halburd. He was asked to say what it was that caused that pressure and said that it was Mr Ritchie's statement to the effect that the jury would find him guilty, that the evidence was very strong, and that the jury would not believe him. Further, that if the jury found him guilty he would get a longer sentence and that there was no more that Mr Ritchie could do for him. 27 Two of Mr Ritchie's affidavits were read in the application, dated respectively 19 and 28 February 2001, and he attended to be cross-examined. He denied in terms most of the words put into his mouth by the applicant. Of the catalogue of complaints made by the applicant about what Mr Ritchie said and did, Mr Ritchie said that during the conference he raised the topic that the applicant was the only man present when the police came and that something would have to be said about the torn boxer shorts. Mr Ritchie denied telling the applicant he had to plead guilty. He denied telling him that the jury would find him guilty and he denied telling him that he could not help him or that there was nothing further he could do. He denied saying that he would get the prosecution to drop one of the charges. He denied saying if the applicant did not plead guilty he would be sentenced to prison for fifteen to twenty years. 28 He did say that the Crown case was a strong one, however, and that the jury might well find the applicant guilty. He denied that the applicant was crying during the interview. He denied that he required an answer before he and his solicitor left the room and asserted that he and his solicitor left the room having spoken to the applicant in order to allow the applicant to speak to his cousin and consider the matters that Mr Ritchie had raised for his consideration. 29 In view of the documents which the applicant has conceded he signed, particularly the one signed on 9 February 2000, his understanding of spoken and written English is a matter of some importance. During cross-examination in this application the documents were severally put before the applicant. He admitted that they bore his signature. He admitted much of the contents of them. When parts of the document which he might reasonably have thought were damaging to his case were drawn to his attention, however, he claimed not to understand the contents. This was particularly so with the contents of the document in which he acknowledged that he had not been telling the truth and stated his desire to change his pleas to guilty. 30 I listened carefully to the applicant and observed him as he gave evidence in this Court and it seemed to me that he understood the questions that he was being asked. Many of the questions were answered simply 'yes' or 'no' but he was very selective about which he answered 'yes' and which he answered 'no'. It seemed to me that he was inclined to answer 'yes' to questions the factual contents of which were irresistible or perhaps not damaging to his case and 'no' to questions the contents of which he might have thought would hurt his case. I thought he approached the questions with some care. Some of them he answered at considerable length. He also addressed the Court and, for a few minutes, cross-examined Mr Ritchie. His English was by no means perfect but I think that it was reasonably fluent and, to me, it showed a capacity to express complex thoughts. 31 The interview with the police to which I have made short reference is a substantial document. There were five hundred and thirty questions and answers. During many of the answers the applicant gave a detailed explanation of what happened on one occasion or another. Throughout the transcript of the interview there appears to me to be good evidence that the applicant understood well questions which were put to him in the English language. During that interview, which lasted well over an hour, there was no interpreter present and no family member to assist the applicant in his understanding of the English used by the interrogating police officer. 32 Speaking of the applicant's understanding of English Mr Halburd said this in his affidavit of 21 February 2001: I have spoken to the appellant on numerous occasion both with and without interpreters. I also viewed various parts of the video tape of his record of interview with the police. Whilst, in fairness to him, it was necessary for the appellant to have an interpreter available at the trial due to the speed and complexity of that process, I formed the view that he generally had a fairly good understanding of the English language and was able to seek clarification of things that he did not understand. 33 Mr Halburd goes on to say Mr Tandawai spoke the Enga dialect of Papua New Guinea, apparently a rare dialect, spoken by the applicant. 34 In my opinion the court can accept and act upon the opinion of Mr Halburd about the ability of the applicant to understand spoken English. It coincides with the opinion that I have formed. 35 Mr Halburd's documents show that the applicant's case, a difficult one, was dealt with carefully, indeed meticulously. I think it quite unlikely that Mr Ritchie would have said the things attributed to him by the applicant. I think it quite unlikely he would have said anything that could be understood as meaning that if convicted the applicant would be sentenced to imprisonment for fifteen to twenty years, that the jury would find him guilty, and that he had to plead guilty. Mr Ritchie is a barrister of long experience in criminal cases. He told the court, and I accept, that he had a practised way of dealing with conferences of this kind, conferences in which it is necessary, because of the apparent strength of the Crown case, to ensure that an accused person understands the choices and the circumstances and the consequences that he faces. Mr Ritchie called it a "patter." One can understand that he would have a standard way of dealing with such things. I accept his denials and I prefer his and Mr Halburd's evidence to that of the applicant. I think that the applicant was less than frank with the court particularly with regard to his asserted understanding of spoken English. 36 During his cross-examination by the Crown prosecutor he answered questions instantly and fluently, I thought. Some minutes ago this was pointed out to him and he was asked whether he had had any difficulty understanding the questions he had so readily answered and he said that he had had difficulty. In view of the facts that he never hesitated and never asked for explanation I do not accept that statement. I think that his understanding was far better than he would have the Court believe. 37 One can easily accept that a conference of the kind at which the applicant, Mr Ritchie and Mr Halburd and the applicant's cousin were present was not an easy one for the applicant. It was a conference at which there would have been anxiety and tension. It is easy to accept that the decision which the applicant made in due course was one made in some agony of mind. Even so I do not think that anything improper happened at the conference. I do not think that he failed to understand anything of significance, spoken or written. I think that the applicant pleaded guilty because he believed he was guilty and that he would probably be found guilty if he continued on before the jury but that pleas of guilty might bring him a lesser sentence. I do not think that the circumstances in which the applicant changed his pleas amounted to a miscarriage of justice. I do not think that there was any mistake. I do not think anything happened affecting the integrity of the applicant's pleas of guilty. I would refuse leave to appeal against the conviction. 38 HEYDON JA: I agree. 39 SMART AJ: I also agree. 40 HEYDON JA: Accordingly leave to appeal is refused. **********