New South Wales Court of Criminal Appeal CITATION : Regina v SL [2004] NSWCCA 397 revised - 23/11/2004 HEARING DATE(S) : 3 & 4 November 2004 JUDGMENT DATE : 23 November 2004 JUDGMENT OF : Giles JA at 1; Buddin J at 64; Smart AJ at 65 DECISION : Appeal dismissed. CATCHWORDS : Pleas of guilty - conviction - appeal on ground pleas were entered in circumstances of miscarriage of justice - appellant's evidence that pleas entered because of representations that he would not be gaoled and would be released to be with his children, and under pressure from his barrister and solicitor's clerk that he had to plead guilty if he wanted to see his children again - evidence not accepted - made informed choice in order to avoid risk of lengthy imprisonment on many more serious charges - submissions that was improper pressure in barrister approaching Crown Prosecutor about a plea without instructions, in the manner of advising that the offer was in the appellant's interests and in seeking written instructions when the offer was initially rejected - submissions not supported by evidence the matters relied on affected appellant's conduct - in any event no improper pressure - pleas not because of the matters relied on - free choice made by appellant in his own interests - no miscarriage of justice - not necessary to consider whether there was a real question to be tried. D Meissner v The Queen (1994) 184 CLR 132; R v Cincotta, CCA, 1 November 1995; R v Chiron (1980) 1 NSWLR 218; R v Davies (1993) 19 MVR 481; R v Hura (2001) 121 A Crim R 427; R v Ferrer-Esis (1991) 55 A Crim R 231; CASES CITED : R v Khan [2002] NSWCCA 521; R v Maxwell (1995) 184 CLR 501; R v Murphy (1965) VR 187; R v O'Neill (1979) 2 NSWLR 582; R v Sagiv (1986) A Crim R 73; R v Toro-Martinez (2000) 114 A Crim R 533; R v Wilkes [2001] NSWCCA 97. PARTIES : Regina v SL FILE NUMBER(S) : CCA 2004/1946 COUNSEL : A W Street SC - Applicant E Wilkins - Crown SOLICITORS : P Livers - Applicant S Kavanagh, Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0202 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 2004/1946 DC 03/11/0202 GILES JA BUDDIN J SMART AJ Tuesday 23 November 2004 Regina v SL Judgment NOTE : Pursuant to s 291 of the Criminal Procedure Act 1986, the proceedings were held in camera. The trial judge ordered that no person publish any material that would identify the complainant. 1 GILES JA: The appellant was charged with a number of offences alleged to have been committed upon the complainant. At the trial the Crown accepted his pleas of guilty to two charges of incest in discharge of the indictment. The appellant was convicted; he has yet to be sentenced. This is an appeal against conviction on the ground that the pleas - " … were entered in circumstances amounting to a miscarriage of justice within the meaning of section 6 of the Criminal Appeal Act 1912 (NSW) in that the appellant's pleas were not free, voluntary and pursuant to a genuine consciousness of guilt." Events to the trial 2 The appellant was arrested on 6 August 2002 and charged with the offences. On 7 August 2002 he was granted bail. The appellant was of Tongan background. On 26 August 2002 his special category visa for New Zealand citizens was cancelled on the grounds of character, and on 17 March 2003 he was detained at the Villawood Detention Centre. He remained in detention at Villawood until his trial and thereafter. At the time of the trial there was pending in the Federal Magistrates Court an appeal against his detention. 3 The charges in the indictment dated 3 April 2003 were contained in fourteen counts, in summary three counts of aggravated sexual intercourse without consent, alternatively incest, between 30 December 1992 and 1 February 1993, 1 March 1993 and 1 April 1993 and 1 June 1993 and 1 August 1993; six counts of sexual intercourse without consent, alternatively incest, between 31 January 1993 and 1 March 1993 (two counts), 1 March 1993 and 30 April 1993, 1 November 1994 and 1 January 1995, 31 December 1994 and 1 February 1995 and 1 February 1995 and 1 April 1995; one count of abduction with intent to carnally know between 31 January 1993 and 1 March 1993; three counts of assault occasioning actual bodily harm between 1 February 1993 and 1 April 1993, 31 July 1993 and 1 September 1993 and 31 December 1993 and 1 February 1994; and one count of common assault between 1 July 1995 and 1 October 1995. 4 The incest charges were in the terms that the appellant "had carnal knowledge of his sister [name] she then being above the age of 16 years". Section 78A of the Crimes Act 1900 relevantly provided - "Whosoever, being a male has carnal knowledge of a female of or above the age of 16 years who is his … sister … (whether in any such case the relationship is of half or full blood, or is or is not traced through lawful wedlock) shall be liable to imprisonment … ". 5 The relevant maximum penalties of imprisonment were - Aggravated sexual intercourse without consent: 20 years. Sexual intercourse without consent: 14 years. Abduction with intent to carnally know: 14 years. Incest: 8 years. Assault occasioning actual bodily harm: 5 years Common assault: 2 years. 6 Following his arrest the appellant engaged solicitors. He instructed the solicitors that he was not guilty of any of the charges and wished to defend them. 7 The appellant's trial was listed for 23 June 2003. His solicitors briefed Mr Mitchell Paish of counsel to appear at the trial. 8 Mr Paish saw the appellant at Villawood on 12 June 2003, accompanied by Ms George from the solicitors. The complainant had given birth to two children by the appellant. The appellant acknowledged paternity; his position was that he had had an ongoing consensual relationship with the complainant. His instructions were to defend the charges. A letter written by Mr Paish to the Legal Aid Commission following the conference included - "[The appellant] does not deny a relationship with the complainant but does deny that she is his sister and that he assaulted or had sexual intercourse with her against her will." 9 By 2003 the appellant and the complainant were on bad terms. There had been Family Court proceedings between them. The appellant told Mr Paish that an expert DNA report in those proceedings established that he and the complainant were not brother and sister. Mr Paish advised that a number of subpoenas should be issued, including a subpoena to produce Family Court documents which would bring production of the DNA report. 10 Mr Paish again saw the appellant at Villawood on 20 June 2003. The appellant's instructions remained the same. The trial begins 11 The first day of the trial was devoted to other matters As a result of one of them, the appellant's bail was revoked. Mr Paish had the opportunity to see the subpoenaed material, including the DNA report. It did not establish that the appellant and the complainant were not brother and sister. On the contrary, the expert considered that it was "practically proven" that they were biological brother and sister. 12 The trial itself commenced on 24 June 2003. Mr Paish appeared for the appellant, instructed by Ms George. The appellant was arraigned and pleaded not guilty to all charges. The complainant gave evidence referable to counts 1 to 3 in the indictment. The trial was then adjourned to the next day, 25 June 2003. 13 On the afternoon of 24 June 2003 Mr Paish discussed with the Crown Prosecutor the possibility of the appellant pleading guilty to two incest counts on the indictment and the remaining charges being dropped. The Crown Prosecutor indicated that such an arrangement would be acceptable to the Crown. Mr Paish did not on that day discuss such a matter with the appellant. 14 The appellant was kept overnight at Surry Hills Police Station. He said that he did not get any sleep, any food or a shower, and that he was tired and frustrated the next day. The conferences in the cells 15 Mr Paish was unable to see the appellant early on 25 June 2003. He asked the judge for half an hour. He saw the appellant in the cells in the Downing Centre, accompanied by Mr Hussain Abou-Ghaida, a clerk from the solicitors who was instructing in place of Ms George. After half an hour they returned to court to ask the judge for more time, Mr Paish saying, "There's been a number of things that I have had to canvass with the accused. It's been a fairly confronting process". The judge gave until 11.30. Mr Paish and Mr Abou-Ghaida again saw the appellant in the cells. The accounts of the conferences in the cells diverged. 16 The thrust of the appellant's account of the conferences in the cells was that Mr Paish and Mr Abou-Ghaida told him that if he pleaded guilty to two counts of incest he would not be gaoled and would be "back out with my kids", and that he had to plead guilty if he wanted to see his children again. He said that he protested his innocence, became angry and upset, and refused to plead guilty. 17 I do not accept the appellant's account of the conferences where it conflicted with that of Mr Paish and Mr Abou-Ghaida. Mr Paish agreed that the appellant's children were "at the forefront of his mind in relation to what he would do", saying that the appellant consistently said that he loved his children and wanted to see them. But he and Mr Abou-Ghaida denied saying that the appellant would not be gaoled if he pleaded guilty, or that pleading guilty would mean that he would be reunited with his children. 18 At the end of the conferences the appellant's instructions remained that he wished to defend all the charges, but not in the circumstances described by the appellant. What happened was as follows. 19 Mr Paish went through the charges with the appellant and told him the maximum penalties for the offences He advised the appellant that the Crown was prepared to accept pleas of guilty to two incest charges and to drop the other charges on the indictment. He told the appellant that he had seen the DNA report from the Family Court proceedings, and that contrary to what he has been told it showed by DNA analysis that the appellant and the complainant were brother and sister. Mr Paish made known that he was concerned not only that what the appellant had told him about the DNA report was wrong, but that by subpoenaing it he had caused the DNA report to be brought to the attention of the Crown who might call the expert to give the adverse DNA evidence. Mr Paish had seen the DPP solicitor going through the Family Court documents on 24 June 2003. 20 The appellant said that he did not know at the time that he and the complainant were brother and sister. Mr Paish told him that there were Crown witnesses who would give evidence that he did know. 21 The conference was at times heated. The appellant became angry, and Mr Abou-Ghaida said that he was "screaming, swearing, hitting on the glass and Mr Paish must have got a bit angry as well … ". Mr Paish advised the appellant to plead guilty to the two charges, saying that he could not guarantee that the appellant would not go to gaol but the appellant would receive at most a sentence of imprisonment for 12 months. He said that if the appellant was convicted on all charges on the indictment he faced a sentence of imprisonment with a non-parole period of about 15 years. 22 The first conference was interrupted when Mr Paish and Mr Abou-Ghaida went back to court to ask for more time. The appellant remained in the cells. 23 On returning, Mr Paish showed the appellant a list he had written out of the witnesses whose evidence would support that the appellant knew that the complainant was his sister. Two of the witnesses would say that they were the mother and father of both the appellant and the complainant. Mr Paish repeated his advice. The appellant said that he was prepared to plead guilty if the complainant was also charged with incest. Mr Paish replied that he could not control who was charged. The appellant said that he would not accept the offer. 24 Mr Paish then wrote out instructions for the appellant to sign and showed the document to the appellant. The appellant said words to the effect, "I'm not signing anything". The instructions document read - "Instructions I hereby acknowledge to my barrister and solicitor that I've been advised that the Crown is prepared to withdraw all the counts on the current indictment which include aggravated rape, abduction and assault if I were to plead guilty to two counts of incest. I have been advised that if I am found guilty of the counts in the indictment of aggravated rape, rape, abduction and assault I would face a prison sentence with a non-parole period of about 15 years. I have been advised that if I pleaded guilty to two counts of incest I could face at most a prison sentence of about 12 months; I have been shown the DNA report of Dr Peter Gunn dated the 10/11/98 and have read the results. I direct my barrister to oppose the admission DNA evidence. [sic] I have been advised by my barrister to accept the Crown offer but I do not wish to do so. I wish to stand my trial on these matters. I would be prepared to plead to two counts of incest if the complainant [name] was also charged with the same. My barrister has advised me this will not occur. Dated 25/06/03 Signed " 25 Mr Abou-Ghaida was not a solicitor. It was suggested that the reference to a solicitor in the instructions document was intended to add weight to Mr Paish's advice. He said, and I accept, that it was a standard expression and was incorrect but not deliberate. 26 Mr Paish said that the appellant indicated that he had been kept in the police station and it was unsatisfactory, but that the appellant "spoke coherently and was not overly distressed". 27 A number of matters cause me to prefer the evidence of Mr Paish and Mr Abou-Ghadia to that of the appellant in relation to these conferences, apart from the views formed on seeing and hearing the three of them give evidence. 28 The appellant was incorrect as to the number of times he was seen in the cells and was in court, although of itself that is not critical. He denied that there was reference to the DNA report or DNA evidence, that he was shown the list of witnesses, and that the instructions document was written out and shown to him, but those events are entirely believable. Mr Abou-Ghaida took notes at the conferences, although the appellant denied seeing him do so, which supported the broadly consistent accounts of the conferences which he and Mr Paish gave. 29 It is improbable that Mr Paish would have told the appellant that he would not go to gaol. It is not credible that he would have told the appellant that he would be back with his children: the appellant was under detention awaiting deportation, and upon deportation would be parted from his children. The cancellation of the appellant's visa was not because of the charges presently in question, so dropping of most of the charges was unlikely to prevent deportation, and Mr Paish's letter to the Legal Aid Commission earlier mentioned said baldly, "If he is acquitted at trial he will be deported". Particularly having seen Mr Abou-Ghaida give evidence, I readily accept his evidence to the effect that, as an unqualified clerk, he would not have held out to the appellant anything about the outcome of the trial or the consequences of a plea, or advised what the appellant should do. The pleas of guilty 30 At about 11.30 the appellant was taken back to court and Mr Paish and Mr Abou-Ghaida returned to court. The jury was brought in. 31 According to the appellant in an affidavit, after he returned to court - "10. As best I recall the charges were read again and I repeated 'not guilty'. Mr Hassan came to the dock area and said words to the effect that if I 'plead guilty all this would go away'. At that moment I looked up and saw [name] (the complainant) sitting in court and she appeared to be smacking her hand. At this stage I was very upset and I took this to mean that she was mistreating the children. I was then taken back to the holding cells of the court. Mr Paish and Hassan [Mr Abou-Ghaida] came to visit me again. As best I recall Mr Hassan said words to the effect 'you told me that you done everything for your kids, why didn't you plead guilty for the sake of the kids?' By this time I was extremely distressed and highly agitated. I was taken back to court and two (2) charges were read out to me and I pleaded guilty. At this time I was also crying. I was then taken downstairs but do not recall seeing Mr Paish and Hassan again." 32 The appellant said that he did not call Mr Abou-Ghaida to the dock, and that Mr Abou-Ghaida came to him when he saw that he was agitated. He said that on return to the cells Mr Paish and Mr Abou-Ghaida were telling him to "just plead guilty we made a deal with the DPP", that Mr Abou-Ghaida said words to the effect "what's best for you a night with the kids or never see them again" and that he "won't do any time". He added that he showed his rosary beads and said, "This is what I believe in, I'm not guilty". He said, "I recall instructing my lawyers to carry on and defend me at my trial". 33 The transcript does not support that the charges were read again and the appellant said that he was not guilty, or that the appellant went back to the cells. Nor do I accept that Mr Abou-Ghaida said to the appellant what the appellant attributed to him or the manner in which the appellant came to plead guilty. 34 According to Mr Abou-Ghaida, he went to the dock when the appellant indicated he wanted to speak to him. The appellant said, "Tell Mitchell I accept the offer". Mr Abou-Ghaida said nothing, and went back to Mr Paish and said, "Guess what. He accepts the offer". Mr Paish went over to the appellant, then returned and said to the Crown Prosecutor, "He accepts the offer". 35 Mr Abou-Ghaida's notes included - "cl Calls me and said tell Mitchell I accept the offer Told Mitchell then he informed HH. Need to adjourn for short time - Facts agreed on. cl accept and a plea of guilty was entered on 2 charges" 36 According to Mr Paish, he saw Mr Abou-Ghaida go to the dock and then return. Mr Abou-Ghaida said to Mr Paish words to the effect, "He accepts the offer". Mr Paish gave the evidence - "I then went to the dock briefly to check that [the appellant] did want to plead guilty to the two incest counts. He confirmed this. [The appellant] was not crying at this time and I did not notice any signs of distress or agitation in him. I then stood with him as he was re-arraigned and indicated to him which charges he should plead not guilty to and which charges he should plead guilty to." 37 The transcript records - "PAISH; Your Honour there has been a further development and I'll make an admission in front of the jury that I was the party seeking the time. It may well be that – could I ask for just a – I've been told something that I need to clarify and it's fairly important. I apologise I'm talking in very vague terms. HIS HONOUR: I will send the jury out Mr Paish and I will adjourn myself for two minutes." 38 Mr Abou-Ghaida's evidence was that the appellant was not crying when the charges were read to him in court and the appellant pleaded guilty, and that he saw no sign that the appellant was distressed or agitated at that time. 39 Again, I prefer the evidence of Mr Paish and Mr Abou-Ghaida to that of the appellant. It is not believable that Mr Abou-Ghaida would have taken the initiative of going to the dock to urge the appellant to plead guilty. That the appellant beckoned Mr Abou-Ghaida over to the dock is supported by Mr Abou-Ghaida's notes. It is also supported by the evidence of Ms Natalie Olender, the DPP instructing solicitor at the time. Conviction on the pleas of guilty 40 It may be that the judge did not himself adjourn. The transcript notes a fault in the recording equipment, and resumes at a time when his Honour had been told of a plea of guilty to two of the alternative counts of incest. There was discussion of re-arraignment and identification of the two counts, counts 7 and 13, including Mr Paish saying that when it came to count 13 "the complainant recollects the event as occurring at Cringila which is, indeed, what she deposed in her statement, the accused is adamant it occurred at Maroubra … ". The transcript records - 'HIS HONOUR: And the Crown will accept those pleas in satisfaction of the whole indictment Mr Crown is that the idea? CROWN PROSECUTOR: That's correct." 41 The jury was brought in. The appellant was re-arraigned on all counts. He pleaded not guilty to all charges save for the alternatives of incest in counts 7 and 13. When pleading to count 13 he said "Guilty, but it happened in Maroubra". 42 The Crown Prosecutor said, after the appellant was re-arraigned, "Your Honour the Crown accepts those two pleas as recorded for this charge [sic: discharge] of the indictment". The judge said that he found the appellant guilty of the two charges and discharged the jury from giving verdicts. Events after conviction 43 The appellant was remanded for sentence to 5 September 2003. He was granted bail, but was still in detention at Villawood. The sentencing was adjourned to 7 November 2003 and again to 5 December 2003. On 5 December 2003 an application to withdraw the pleas of guilty was foreshadowed. The application was made on 21 January 2004, but was not maintained when it was appreciated that, the appellant having been convicted upon the pleas, there was no power to give leave to withdraw them (see R v Hura (2001) 121 A Crim R 427). 44 The appellant said in cross-examination that he decided on 25 June 2003, immediately after he had pleaded guilty, that he did not want to maintain the pleas. He said that he saw Mr Paish in the cells after court on that day, that he argued with Mr Paish when he knew he was not going to be released, and that Mr Paish told him he would have to look for a new lawyer. That the appellant saw Mr Paish is contrary to his evidence earlier set out. Mr Paish remained instructed for 7 November 2003, and had a telephone conference with the appellant for that occasion in relation to providing assistance to the authorities. Only shortly before 5 December 2003 did the appellant say he was considering changing his plea. I am satisfied that the appellant was making this evidence up in response to the cross-examination. Why did the appellant plead guilty? 45 With a qualification, until the occasion in the dock the appellant maintained that he was not guilty of any of the charges, including that he was not guilty of the two incest charges. The qualification is that he was prepared to plead guilty to the two incest charges if the complainant was also charged with incest. 46 In the affidavit earlier mentioned the appellant said that the only reason he pleaded guilty "was because I felt that if I did not plead guilty I would not see my children again and that by pleading guilty I would be immediately released as I was concerned that my children were not being properly cared for by [the complainant]". In oral evidence he said that he was agitated and "said what I said so I could see my kids be with my kids". He said there was pressure from Mr Paish and Mr Abou-Ghaida telling him that he had to plead guilty if he wanted to see his children again. 47 I do not accept this explanation. There was no holding out of a non-custodial sentence, and more important no holding out that the appellant would be back with his children. Mr Paish considered that there was a very strong case against the appellant on the incest charges, and was concerned that if the jury accepted that the complainant was the appellant's sister they might accept that the relationship was not consensual and find him guilty on the other charges. He advised that it was in the appellant's best interests to plead guilty to the two incest charges and have the other charges withdrawn. Mr Paish's advice was no doubt forceful, but justifiably so, and I consider Mr Paish was correct when he observed that the appellant "is a fairly strong willed individual and not someone … who would be pressured into anything". 48 The appellant was not in an overly emotional condition when he changed his instructions. I consider the reverse is the position. Mr Paish's opinion that the appellant faced a very strong Crown case on the incest charges can not have been welcome to the appellant. In the conferences he was angry and reacted not entirely rationally to Mr Paish's advice, not being prepared to plead to the two incest charges unless the complainant was also charged with incest: if he was charged, she should also be charged. In my opinion, when he returned to court after further opportunity for reflection he recognised that it was in his interests to plead guilty to the two incest charges, because of the likelihood that he would be found guilty on those charges and the increased risk he would run in relation to the remaining charges. If that risk came home his wish to be with his children would be defeated by a long period of imprisonment, but if he received a short sentence there was at least the possibility that he could avoid deportation. He made an informed choice to plead guilty to the two incest charges, appreciating that he was in peril of conviction and a term of imprisonment, in order to be free from the peril of conviction on the other charges which would have brought very lengthy imprisonment. The submissions on behalf of the appellant 49 The ultimate question is in the terms of s 6 of the Criminal Appeal Act 1912, whether there was a miscarriage of justice: see R v Murphy (1965) VR 187; R v Chiron (1980) 1 NSWLR 218; R v Davies (1993) 19 MVR 481; R v Khan [2002] NSWCCA 521. 50 In R v Hura it was said that a number of circumstances had been identified when a conviction may be set aside notwithstanding a plea of guilty. Statements of the circumstances included that the appellant did not appreciate the nature of the charge to which the plea was entered (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233); that the plea was not a free and voluntary confession (R v Chiron at 220); that the plea was not attributable to a genuine consciousness of guilt (R v Murphy at 191); that the plea was induced by threats or other impropriety where the appellant would not otherwise have pleaded guilty, so that the plea was not really attributable to a genuine consciousness of guilt (R v Cincotta, CCA, 1 November 1995); that the plea was equivocal and made in circumstances suggesting that it was not a true admission of guilt (R v Maxwell (1995) 184 CLR 501 at 511); and that the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt (R v Davies at 485). These are instances of where a miscarriage of justice may be found, not exhaustive statements of the test for miscarriage of justice. 51 The plea itself is a cogent admission of the ingredients of the charge (R v O'Neill (1979) 2 NSWLR 582; R v Sagiv (1986) A Crim R 73; R v Davies), and as was said by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1994) 184 CLR 132 at 141 - "A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence." 52 Counsel for the appellant submitted that the miscarriage of justice lay in improper pressure upon the appellant, constituted by Mr Paish negotiating a "deal" with the Crown Prosecutor without instructions and presenting the deal to the appellant, then seeking more time from the judge despite current instructions to defend the charges, and then persisting in urging the deal upon the appellant with reference to the list of witnesses and finally by calling upon him to sign the instructions document. Added to this, it was said, was improper pressure by telling the appellant that the DNA report showed that he and the complainant were brother and sister, when the report was not admissible in its then form and had not been read closely or confirmed by expert advice. It was said that the appellant was misled in this respect. 53 The submissions effectively abandoned the appellant's own explanation for his pleas, and did not have the benefit of evidence from the appellant that he felt under pressure because the deal had been negotiated without his instructions, because more time had been sought, because of the list of witnesses and the instructions document, or because of what he was told about the DNA report. The appellant said nothing about concern over pre-negotiation of a deal. His account of going to and from court was not accurate, but he did not say that it caused him to feel under pressure whereby he pleaded guilty. He denied that he was shown the list of witnesses and the instructions document, and denied any reference to DNA evidence. 54 I do not consider that, in the manner and circumstances in which they occurred, there was anything improper in Mr Paish's discussions with the Crown Prosecutor on the afternoon of 24 June 2003. When Mr Paish saw the appellant in the cells he did not present to him a concluded deal, but a preparedness of the Crown to agree in a course which was to the appellant's benefit and of which the appellant could take advantage if he wished. It was a matter for the appellant's decision and instructions. 55 It was appropriate for Mr Paish to ensure, by the list of witnesses and otherwise, that the appellant knew the force of the evidence to be presented in the Crown case, and knew that as a result of the appellant's earlier instructions the Crown had been alerted to the DNA report and could call the expert to give evidence adverse to him. It was put to Mr Paish that his conduct in these respects put pressure on the appellant to plead guilty. Mr Paish did not agree, saying that he raised matters for the appellant's consideration, and wanted to make sure that the appellant "knew the pros and cons". In my opinion, Mr Paish would have been open to criticism if he had not tried to make sure that the reasons for his advice were explained and understood. 56 Mr Paish's explanation of a perceived need to seek written instructions that, notwithstanding his advice, the charges should be defended was understandable and should be accepted; there was nothing improper in his seeking the written instructions. 57 The significance of the DNA report did not lie in any representation of its then admissibility or unchallengeable conclusiveness; neither representation was made. The DNA report did say that, in the expert's opinion, it was practically proven that the appellant and the claimant were brother and sister, and the subpoena raised the prospect that the Crown, now alerted to it, would call DNA evidence adverse to the appellant. That would have been the time for challenge. It was quite appropriate for Mr Paish to take the DNA report into account in the advice he gave to the appellant, advice not founded solely on the DNA report – the evidence of the mother and father would itself have been telling. So far as the reference to the DNA report influenced the appellant, I do not think he was wrongly advised or subjected to improper pressure. 58 I do not think that the appellant pleaded guilty because of the matters to which his counsel referred. He exercised a free choice in his own interests, and I repeat my acceptance of Mr Paish's observation that the appellant was a fairly strong-willed person and not someone who would be pressured into anything; to this may be added the observation that Mr Paish was "dealing with someone who was pretty clear-minded and determined". In my opinion, it has not been shown that there was a miscarriage of justice in the court acting upon the appellant's plea. Other evidence 59 The appellant's counsel tendered in the appeal a report of Dr Brian McDonald and an apparent birth certificate of the appellant. The report had been obtained and provided to the Crown the day before the hearing of the appeal. It suggested that the DNA report was deficient in that it had not allowed for increased sharing of alleles in the Tongan population. The birth certificate was made known to the Crown on the day of the hearing. 60 The Crown objected to the admission of the documents unless it had the opportunity to consider, investigate and meet them. 61 The documents were tendered as going to the third consideration stated by Wood CJ at CL in R v Wilkes [2001] NSWCCA 97 at [20], whether the material before the appellate court showed that there was a real question about the appellant's guilt. The first question is whether circumstances such as those spoken of in R v Hura were present, but even if they were it does not follow that there was a miscarriage of justice. In R v Toro-Martinez (2000) 114 A Crim R 533 it was said at 539 that an appeal against conviction after a plea of guilty will only be permitted if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, and as was said in R v Khan at [27] - "27 The statement of the third consideration by Wood CJ at CL reflects that, even if it be found that the plea was not attributable to a consciousness of guilt, nonetheless leave to withdraw the plea of guilty will be refused if there is not a real question about guilt. Thus in R v Davies (CCA, 16 December 1993, unreported) it was said that leave to withdraw a plea of guilty will be refused if the case against the accused is overwhelming, and in R v Hura (2001) 121 A Crim R 472 it was said that if the person entering the plea of guilty did not entertain a genuine consciousness of guilt then the plea of guilty should be set aside if, but only if, the appellant shows that there is a real question to be tried. The statement of the third consideration followed citation of the passage from R v Hura so stating, and did not endorse a separate ground for withdrawal of a plea of guilty." 62 The documents were marked for identification and the appeal was heard excluding any question of the third consideration. Before the third consideration arises, circumstances of miscarriage of justice must be shown. In the event, in this appeal the consideration does not arise. On the basis they were tendered, the documents are not relevant to the determination of the appeal. 63 In my opinion, the appeal should be dismissed. 64 BUDDIN J: I agree with Giles JA. 65 SMART AJ: I agree with Giles JA. ********** Last Modified: 11/29/2004 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.