New South Wales Court of Criminal Appeal R v Hawker [2005] NSWCCA 118 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1/4/05 JUDGMENT DATE: 18 April 2005 JUDGMENT OF: Grove J at 1; Howie J at 2; Hall J at 23 DECISION: 1. Allow the appeal and quash the conviction; 2. Order new trial CATCHWORDS: Criminal Law - Appeal against conviction after plea of guilty - appellant's legal representative misunderstood the elements of the offence charged - appellant pleaded guilty on advice that his version of events amounted to an admission of guilt - erroneous legal advice - plea of guilty not an admission of the elements of the offence - plea of guilty set aside and conviction quashed LEGISLATION CITED: Crimes Act 1900 - ss 59, 61, 111(2) R v Ganderton (NSWCCA, unreported, 17 September 1998) CASES CITED: Meissner v The Queen (1995) 184 CLR 132 Regina v Shane Richard Arthur Hawker PARTIES: FILE NUMBER(S): CCA 2004/2896 CCAP P. Barrett - Crown COUNSEL: B. Rigg - Appellant S. Kavanagh - Crown SOLICITORS: B.Duchen - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0301 LOWER COURT JUDICIAL OFFICER: Patten DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2896 CCAP GROVE J HOWIE J HALL J MONDAY 18 APRIL 2005 REGINA v SHANE RICHARD ARTHUR HAWKER Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: On 1 April 2005 the Court made orders allowing the appeal in this matter, quashing the conviction and ordering a new trial. These are the reasons for my joining in the orders made by the Court. 3 The appellant, Shane Hawker, pleaded guilty in the Local Court to a charge alleging in substance that on 22 October 2002 he entered a dwelling house with intent to commit a serious indictable offence, being to assault occasioning actual bodily harm, in circumstances of aggravation in that he was in company with Michael Hawker. This is an offence contrary to s 111(2) of the Crimes Act. The appellant was committed to the District Court for sentence and on 23 October 2003 adhered to his guilty plea before Judge Patten. As a consequence the appellant was sentenced to imprisonment for 2 years to be served by way of periodic detention. There was a non-parole period specified of 18 months. 4 Notwithstanding that the appellant has effectively pleaded guilty twice to the offence, once before the Local Court and again in the District Court, he appealed against his conviction on the basis, firstly, that the Judge ought not to have accepted his plea and, secondly, that his conviction constitutes a miscarriage of justice. The appellant also sought leave to appeal against the severity of the sentence if he were unsuccessful in persuading this Court to allow him to go behind his plea of guilty. 5 There was tendered before Judge Patten a statement of facts that can be briefly summarised as follows. At about 11.30 am on 27 October 2002, a Sunday, the appellant, his brother Nathan, his father and another unidentified male went to a unit block where the alleged victims of the offence were living. The father was armed with a hammer. By reason of the noise being made by attempts to rouse the persons in the unit where the victims resided, the neighbours opened their door and an argument occurred between them and one or more of the appellant's group. As a result of the banging to the unit door and the argument in the lobby, one of the residents of the unit, a man named Hassan, opened the unit's door. The four males including the appellant pushed their way through the partially open door into the unit. As they did this Hassan was punched and, having fallen to the floor, was kicked by one or more of the group. 6 Another resident, a man named Merrin, went to the assistance of Hassan but was pushed to the floor. The third resident, Marsh, then emerged from a bedroom. He was confronted by Nathan Hawker, who by then had the hammer. The appellant's father rushed at Marsh and tackled him to the ground. Nathan Hawker then struck him twice to the back of the head causing him to lose consciousness. He was then kicked twice by the appellant's father. The four males left the unit saying words to the effect that this had been a warning. Marsh received lacerations to the back of the head, one of which required sutures, and bruising and tenderness to his chest area. 7 Marsh complained to police on 1 November 2002 but it was not until April 2004 that the appellant's father and brother were arrested. The appellant was arrested on 4 May 2004. He participated in an interview with police in which he admitted having been at the premises with his father, brother and a third person. He said that he spoke to his father earlier that day and his father told him that he had wanted to obtain the return of a CD player and some CD's, which belonged to the appellant's sister, from Marsh. The appellant told police: …..I said, "Well, yeah, come round and pick me up, I'll come round and just sort of", so he don't, there's, cause I know that they're, to put it bluntly, pieces of shit, and I don't want my father walking into a house where he's gunna get sort of jumped on soon as he walks in. And so, I said, "Look, I'll come round and I can stand there and, so they're not gunna jump all over you, and ask for the stuff back" and that's what happened. 8 On a number of occasions during the interview the appellant told police that the events were "all blurry" to him, but in effect the appellant's version was that there was an argument between his group and the persons from the unit in the lobby and that "a scuffle erupted that spilled into the house". The appellant became involved in wrestling with two other persons. He denied that his group pushed their way into the unit or that any person was carrying a hammer. He told police that he understood that Marsh had a knife and was struck by his brother while Marsh was struggling with his father. The appellant said that, when he went to the unit, he did not believe that there would be any confrontation but that they went in a group because he knew that the people in the unit "ran in gangs" and he thought that Marsh would be more likely to hand over the property if there were four of them asking for it. 9 The appellant gave evidence before Judge Patten. He said that he had been told that there had been a party at his sister's place some weeks before the incident giving rise to the offence. Some males, who had attended the party, had been asked to leave but they returned later with other persons and in effect invaded the party taking his sister's CD player and some CDs as they left. One of these persons was alleged to be Marsh. The appellant said that his father had confronted Marsh and asked for the return of the property taken and Marsh said that he needed two weeks to locate the property. The appellant confirmed that the account he had given to the police in the interview was true. He also gave evidence that he had only heard about the use of a hammer some time after the incident and was unaware of the presence of a hammer at the unit. The Crown did not cross-examine the appellant. 10 Nathan Hawker, the appellant's brother, also gave evidence before Judge Patten. His account was that he had seen Marsh with a knife in his hand and was struggling with his father. He said that he struck at him with a hammer so that he would release the knife and they could leave the unit unharmed. He said that he picked up the hammer in the unit when he saw it on the floor, and before that time he had been unaware of the presence of a hammer. In cross-examination he denied that any person in his group brought a hammer to the unit. He said that he did not believe that there would be "a blue" at the unit when he went there. 11 During the course of the submissions by the solicitor appearing for the appellant to Judge Patten the following was said (obvious errors corrected and my underlining): In relation to the recorded interviews with both of the young men your Honour they are both, I would submit, quite clear that their intention in going there on that morning was to retrieve the sister's property. Now how that was to be gone about, obviously, they gave no detail other than the fact there is some mention made that it was in the hope that, by going there with some four, the property would simply be returned and that would be the end of it. Certainly both of them say that there was no actual plan to physically engage or use violence. Obviously that is what happened and that's why they pleaded guilty to these offences but, in relation to whether or not there was any planning, I would submit that it was very rudimentary at best and that when the planning scenario got to the stage where the property was not given as requested it does appear to have been little, if any, plan or routine that was to be followed. 12 There was no consideration given during the hearing of the sentencing proceedings to the fact that, on the face of it, the evidence given by the appellant was inconsistent with the plea of guilty. The offence charged had as one of its elements that the appellant intended, at the time he entered the premises, to commit a serious indictable offence. The serious indictable offence specified in the charge was an assault occasioning actual bodily harm. In order to prove that offence the prosecution would only be required to show that the accused intended to assault the victim, the infliction of actual bodily harm merely being a result of the intentional assault. 13 However, an intention merely to assault a person was not itself a sufficient intention to prove this element of the offence charged because an assault simpliciter is not a "serious indictable offence" for the purposes of an offence under s 111. A "serious indictable offence" is defined by s 4 as "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more". An assault under s 61 of the Crimes Act, that is an assault where no injury is caused, carries a maximum penalty of imprisonment for 2 years and, obviously, does not fall within the definition of "a serious indictable offence". 14 It follows that in order to make out the offence charged the Crown had to prove that the appellant had an intention when he entered the unit, not just to assault a person or persons then present, but to assault a person or persons at the unit and thereby inflict actual bodily harm. The offence was not made out by a finding that the appellant had intentionally assaulted some person present and had thereby inflicted actual bodily harm upon him. Such a finding would have made the appellant liable for conviction of an offence under s 59 of the Crimes Act but not the offence with which he was charged and to which he pleaded guilty. 15 There might be little difficulty in inferring from the evidence given by the applicant on the sentencing proceedings and the account that he had given in the record of interview that he intended simply by his presence at the unit to assault some person or persons by putting them in fear of immediate violence had they not complied with the father's request. The fact that the appellant thought that four persons might be needed to persuade the residents to hand over the property, suggests that he believed that his presence with his companions would intimidate the residents into complying with his father's demands. I am not suggesting that this is the only available inference arising from the version of the facts proffered by the appellant, but it is one that could have been found by the sentencing judge. But such a finding would not without more have proved the element of the charge that he was intending to commit an assault occasioning actual bodily harm. 16 The question that arises on the appeal is whether the conviction of the appellant consequent to his plea of guilty gave rise to a miscarriage of justice. Although, there is a separate ground of appeal that his Honour should have rejected the plea, it seems to me that this is simply one aspect of the general complaint made about the conviction based upon the plea of guilty. It is unnecessary for present purposes to review the circumstances in which a court will allow a plea of guilty to be withdrawn but it is clear that, if an accused person enters a plea of guilty in such circumstances that it appears that he was not in possession of all the facts and did not entertain a genuine consciousness of guilt, the plea cannot be allowed to stand: R v Ganderton (NSWCCA, unreported, 17 September 1998). If the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it, then a miscarriage of justice will arise if the court acts upon that plea: Meissner v The Queen (1995) 184 CLR 132 per Dawson J at 157. 17 The appellant has filed an affidavit in support of the present appeal. The following paragraphs concern the appellant's understanding of the nature of the charge when he decided to plead guilty: 7. My understanding of the charge was that it was a home invasion to an extent, not a complete home invasion because of the circumstances surrounding it (the reason we went there) and because there was self defence. 8. Although I accept that the charge I pleaded guilty to has words in it stating that there was an intent, at no stage before pleading guilty was I advised by anyone that I was saying I had any intent in going to the unit. 9. I didn't have any intention in going to or entering the unit other than as I told the police, and told the Sentencing Judge in evidence. This was to request that my sister's property be given back or stand there while my father made such a request. 10. I was not involved in an assault occasioning bodily harm, and never had any intent to commit or be involved in any such assault. 11……… 12. I pleaded guilty because I was told that on what I admitted I would be found guilty of the offence, and I understood that pleading guilty was the only way to avoid a gaol sentence. 13. I never had any discussion with my solicitor about anything called 'elements' of the offence I was charged with or pleaded guilty to. 18 The appellant went on to indicate that he first became aware of the necessity of the Crown to prove a specific intent to inflict injury when he attended the trial of his father for the offence and was informed by the solicitors appearing for his father of that fact. He stated that in pleading guilty he had acted on the advice of his solicitor to the effect that on the version of the facts he gave to police he was guilty of the offence. He did not believe that this advice was wrong until talking to his father's solicitors. 19 The appellant gave evidence before this Court consistent with the affidavit. His cross-examination by the Crown did not touch upon his knowledge of the elements of the offence, his understanding of the need for the Crown to prove an intent to injure, or the basis upon which he pleaded guilty. In particular it was never suggested to the appellant that by his plea of guilty he was admitting that he entered the flat intending to injure any person present. 20 The solicitor who appeared for the appellant in both the Local and District Courts filed an affidavit and gave evidence on behalf of the Crown. He had also appeared for the appellant's brother Nathan. There was some conflict between his evidence and that of the appellant as to what instructions the appellant had given from time to time about his knowledge of the hammer at the unit, but it is unnecessary to pursue this issue or make any findings on that matter one way or the other. The significant part of the solicitor's evidence was that he "explained the elements of the offence regarding the necessary intention in terms of recklessness". It was the solicitor's view that the offence was made out if the appellant contemplated the possibility of violence resulting in some injury during the course of the confrontation at the unit notwithstanding that he may not have intended to cause harm to any person when he entered the unit. The understanding that the offence could be committed recklessly might have been appropriate for an offence under s 59 of the Crimes Act, but it was incorrect in respect of the offence charged. 21 Thus the solicitor never disputed that the appellant was led to believe that he was guilty of the offence charged on his version of the facts that had been proffered to the police in the recorded interview and was given in his evidence to Judge Patten. The appellant never gave any instructions to the solicitor indicating that he had the necessary intent to prove the charge but to the contrary always denied it. It is clear that both the solicitor appearing for the appellant, and hence the appellant himself, misunderstood the nature of the charge in believing that it could be proved on the basis that the appellant acted recklessly in relation to the infliction of injury on any person at the unit. The passage underlined from the submissions of the solicitor on sentence quoted above clearly shows the erroneous view upon which both the solicitor and the appellant acted. 22 In those circumstances it is clear that the appellant's plea of guilty was not made in a full understanding of the nature of the charge and with the intention of admitting all the elements of the offence, including the necessary intent in relation to the infliction of actual bodily harm. In those circumstances a miscarriage of justice arose when Judge Patten acted upon the plea in order to convict the appellant. This Court must, therefore, act to quash that conviction. Ultimately the Crown conceded as much before us. It does not matter that the appellant may have been motivated to appeal because his father was acquitted, or that it was, on the face of the statements tendered before Judge Patten, a strong Crown case. 23 HALL J: I agree with Howie J. ********** 06/05/2005 - Name of Crown Prosecutor amended - Paragraph(s) Nil 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.