Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lawton v R [2012] NSWCCA 16 Hearing dates: 6 February 2012 Decision date: 06 February 2012 Before: Basten JA at 1; RS Hulme J at 23; Schmidt J at 24 Decision: 1. Grant, to the extent necessary, leave to appeal. 2. Allow the appeal. 3. Grant leave to withdraw the plea of guilty entered by the appellant on 17 March 2011 in the District Court in response to the indictment in relation to the offence allegedly committed on 31 October 2009. 4. Set aside the conviction and sentence based on that plea. 5. Remit the matter to the District Court to be further dealt with according to law. 6. In relation to bail granted by the Supreme Court on 21 October 2011, add a condition 13 as follows: "The Court notes that these conditions of bail may appropriately be varied by a judge of the District Court pursuant to s 44(6) of the Bail Act 1978 (NSW)." Otherwise the conditions of bail imposed on 21 October 2011 continue. Catchwords: APPEAL - criminal - withdrawal of plea - adequacy of evidence regarding legal advice - prosecutor's duty in accepting that plea - followed incorrect legal advice CRIMINAL LAW - appeal - conviction based on plea of guilty - recklessly cause grievous bodily harm, Crimes Act 1900 (NSW), s 35(2) - application to withdraw plea of guilty on basis of incorrect legal advice - whether miscarriage of justice - considerations when defence lawyer has acted incompetently Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: Blackwell v Regina [2011] NSWCCA 93 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Hawker [2005] NSWCCA 118 R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 Category: Principal judgment Parties: Beau Lawton - Applicant Regina - Respondent Representation: Counsel: Mr N Moir - Applicant Ms J Girdham - Respondent Solicitors: Morelaw Solicitors - Applicant S Kavanagh, Solicitor of Public Prosecutions - Respondent File Number(s): CCA 2009/245424 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-03-22 00:00:00 Before: Hock DCJ File Number(s): DC 2009/245424 Judgment 1BASTEN JA : On 6 February 2012 this Court granted leave to appeal, to the extent that was necessary, allowed the appeal, granted leave to the applicant to withdraw his plea of guilty, set aside the conviction and sentence imposed in the District Court and remitted the matter for further hearing according to law. That occurred in circumstances where counsel for the Director conceded that the applicant did not appreciate the nature of the charge and did not intend to admit guilt of the charge in pleading guilty to an offence under s 35(2) of the Crimes Act 1900 (NSW). I joined in those orders of the Court, though in circumstances which, for the reasons set out below, were far from satisfactory. 2On 17 March 2011 the Director of Public Prosecutions charged the applicant that he "did recklessly cause grievous bodily harm to Thomas Biviano", contrary to s 35(2) of the Crimes Act . The charge reflected the words of the section. 3The alleged offence arose out of an incident which occurred at the rear of the Bi-Lo supermarket at Maitland, in the early hours of 31 October 2009. The applicant was engaged in a fight with another man when Mr Biviano stepped between them and told them to desist. (Where there was conflicting evidence, neutral language will be used, to avoid suggesting an unintended preference in these reasons.) The following statement appears in the judgment of Hock DCJ in sentencing the applicant on 22 March 2011 (pp 1-2): "As is often the case with incidents of this kind, there are different versions of what happened next. However, the weight of the evidence is that the offender delivered a right-handed punch to the left side of Mr Biviano's face with such force that Mr Biviano fell to the ground without being able to break his fall. Mr Solbrandt's evidence is that the victim was not looking at or facing the offender at the time. Mr Biviano's head hit the concrete path with a loud thud. Mr Solbrandt went to his aid and could not get a response from him. Mr Biviano had blood coming out of his nose and mouth. There was a bleeding wound at the back of his head. He was making snoring noises and convulsing." 4On 17 March 2011, the applicant pleaded guilty to the count set out above and asked that a further offence of affray be taken into account. The applicant was convicted on his plea and sentenced to a non-parole period of three years nine months, with an additional term of two years and six months, to date from 22 March 2011. 5The history of the matter prior to the sentencing appears from a description given by the prosecutor during the hearing on 17 March 2011 (Tcpt, p 2(40)): "The offender ... was charged on 2 November 2009 with this offence and the matter was committed for trial on 4 August 2010. He was arraigned on 2 September last year with a trial date being set, being 8 November. That was vacated subsequently for the offender to raise funds to instruct counsel. And then a new trial date of 14 February 2011 was set and a plea was entered on 3 February 2011 at the Newcastle District Court and that was ... to the wrong section, however, he was committed for trial in relation to the correct section." 6The document headed notice of appeal and application for leave to appeal was filed on 12 September 2011. In circumstances which will be outlined below, the prosecution responded to the application for leave to appeal expeditiously and, on 21 October 2011, the Director's attitude having been indicated to the Court, the applicant was granted bail. 7The basis of the appeal was that the plea was entered "on the misapprehension that the conduct amounted to an offence under s 35(2) of the Crimes Act"; that the applicant "never intended to signify guilt under s 35(2) of the Crimes Act " , and that the conviction is "a miscarriage of justice". 8Although the applicant was described in the notice of appeal as "appellant", that was not strictly correct. What in effect the applicant sought to do was to withdraw his plea of guilty on the basis that it had been entered under a misapprehension. That required, in part, a factual inquiry as to the circumstances under which the plea was entered. Accordingly, the challenge to the conviction not being based on a ground "which involves a question of law alone", leave is required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). 9The factual circumstances on which the applicant relied are revealed with a brevity which can best be described as contemptuous. First, his affidavit dated 13 September 2011 stated: "1. On the 17 th of March 2011, I received advices from Christopher O'Brien to offer a plea of guilty to the indictment on evidence that I was to give that I impulsively struck the victim to the head on one occasion. 2. To my mind, I accept that it was an impulsive punch of a person entering my field of vision whilst fighting with another person. 3. At no time did I contemplate or foresee that that one punch would cause any really serious injury." 10The affidavit was sworn before Christopher O'Brien, solicitor. On the same date, Christopher O'Brien of Maitland Road, Mayfield, swore an affidavit which, as read before this Court, stated: "On the 17 th of March 2011, I provided Beau Lawton with advices that on his evidence and on his instructions as stated in his affidavit of the 13 th of September 2011 that the offence of Recklessly Inflict Grievous Bodily Harm could be found proved at law." 11Mr O'Brien did not condescend in his affidavit to set out his involvement with the case, his experience with criminal law, his instructions, nor when he ceased to act. (Indeed, remarkably, he lodged the appeal on behalf of the applicant.) He did not state whether he had read the whole of the transcript of the interview with the applicant undertaken on 2 November 2009. There was no attempt to explain what he understood to be the elements of the offence and what precise advice had been given to the applicant. The fact that he witnessed the applicant's affidavit and the common language in both, bearing the flavour of legal drafting, suggest that the applicant obtained no independent legal advice before seeking to withdraw his plea. The applicant did not state what other legal advice he may have obtained, prior to or after his committal, nor whether he ever spoke to counsel, as appears to have been his intention at the time of the adjournment application in late 2010. 12Mr O'Brien appeared for the applicant before the sentencing judge on 17 March 2011. He led the applicant through some brief evidence, none of which was controversial. The only part which was relevant for present purposes was the following (Tcpt, p 11): "Q. Is it your evidence that up until today you did not know the extent of the injuries that were [sic] caused? A. Yes. Q. Do you accept that within the fight it was one of your punches that connected with this victim? A. I do now realise that it was one of my punches." 13The applicant was later recalled to repeat his acceptance that the critical punch was his. The following exchange also occurred with the sentencing judge (Tcpt, p 14): "O'BRIEN: ... This good Samaritan has been struck by a loose punch and the result is shocking; that is to say, your Honour, that the effect was the grievous bodily harm which has been identified. This was not an intentional act towards this victim. It was a reckless act. It is in the context of what happened, your Honour, the Crown could not properly say that it was the punch that caused that injury. It's a possibility that it was the ground that caused that injury. HER HONOUR: He only hit the ground because he was punched. That's unfortunately the almost inevitable consequence of a strong punch from a young man and the courts see it all the time. O'BRIEN: Yes, your Honour. I will leave that as it is, your Honour. It is within a long authority of decisions, your Honour, that supports the contention that he is involved in an unlawful act and anything that happens as a consequence, your Honour, he is guilty of. He is guilty of that act, your Honour, and he has pled to that today." 14On the basis of the view expressed by the sentencing judge, in the course of her interjection set out above, it would have been open to a court to convict. The view expressed by the solicitor for the applicant in the following passage, after accepting her Honour's interjection, was so imprecise as to be misleading. One question raised by this application might have been whether there would have been a miscarriage of justice if the plea was given on the basis of legally inaccurate advice, but in circumstances where legally accurate advice could well have supported the same conclusion. The issue was not raised. Whether the applicant was advised (or has since been advised) as to the risk of a more severe sentence if he pleaded not guilty and was convicted was also not explored. 15It appears to be accepted by the parties that the trigger for this application was the delivery of judgment by this Court, some three weeks after the applicant was sentenced, in Blackwell v Regina [2011] NSWCCA 93. In that case, the Court (Beazley JA, James and Hall JJ agreeing) upheld a challenge to a conviction for an offence under s 33 of the Crimes Act where the jury had been directed in relation to the alternative charge under s 35 that the relevant intention was "to cause some physical injury": at [39] and [40]. Beazley JA stated at [66]: "At this point, it is necessary to return to the directions which the trial judge gave as compared to the elements of the offence under s 35(2) as amended. Her Honour directed the jury that ' maliciously' meant ' intending to cause some physical harm' , which was one of the mental states that fell within the meaning of ' maliciously' in the Crimes Act, s 5. 'Recklessness' was another mental state which fell within the statutory meaning of 'maliciously'." 16Beazley JA then noted at [76], that "where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence". The question as whether what was required was foresight of the possibility "of some physical harm" or of "grievous bodily harm": at [80]. Her Honour concluded at [82]: "There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean ' some physical injury' ." 17If Mr O'Brien had taken a different view of the meaning of s 35(2), he did not say so. Indeed, his affidavit was entirely silent as to what view he took. 18There may have been some support for the view that the trial judge in this case had misdirected herself in a manner which might have caused her to impose an inappropriate sentence. In her reasons on sentence she described the outcome in terms which bear some resemblance to her instruction to the jury in Blackwell : at p 6. However, while that material might support a challenge to the sentence, it could not support a challenge to the plea. 19It is well established that the basis upon which an applicant can seek to appeal against a conviction based on a plea of guilty depends upon establishing that there has been a miscarriage of justice for the purposes of the Criminal Appeal Act , s 6(1). Even where an appellate court is satisfied that the defence lawyer at trial has acted incompetently, the court should not intervene unless satisfied that the outcome, namely conviction, was unjust: Nudd v The Queen [2006] HCA 9; 80 ALJR 614. In the judgment of Gleeson CJ in Nudd , there is a clear articulation of the reasons why care must be taken in dealing with an invitation to examine the competence of counsel and the steps taken in the course of the trial. Where, as in the present case, there is only one step which admits of objective assessment, namely the entry of a plea, different considerations may apply. Nevertheless, two points of caution may be noted. 20First, in similar circumstances to the present case in R v Hawker [2005] NSWCCA 118, Howie J (with whom Grove and Hall JJ agreed) undertook a careful assesment of the evidence and the specific elements of the charge, in order to form a view as to whether a miscarriage of justice had occurred. Similarly, in R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310, Wood CJ at CL (with whom Giles JA and Simpson J agreed) also undertook a careful analysis of the circumstances in which the plea was given; the nature of the evidence and cross-examination which may have been available; criticisms which might have been made of the prosecution case as it unfolded and the absence of weighty evidence favouring guilt, such as that which might have been expected from DNA testing of the appellant's clothing. However, the Court was assisted in that regard by an analysis provided by counsel as to the reason why he considered that his advice to the applicant to plead guilty had been erroneous, being the advice described by Wood CJ at CL as coming from "an experienced public defender": at [47]. 21The circumstances of such cases illustrate the hollowness of the claims upon which the present application was made. It is in the public interest that any such application be tested carefully by the Director of Public Prosecutions before it is accepted and the appeal effectively conceded. 22One element of the public interest in such circumstances must be a belief in the unfairness of the conviction of the accused. In the present case, there can be limited confidence in the conviction once the Director has made the concession referred to at the beginning of these reasons. Given the concession, it would require an overwhelming case supporting guilt for this Court to refuse to act upon the joint position of the parties. That is not this case. Accordingly, it was appropriate to make the orders referred to above. 23RS HULME J : I agree with Schmidt J. 24SCHMIDT J : Basten JA has explained the circumstances in which the Court made orders in the applicant's favour on 6 February. These are my reasons for joining in that decision. 25At the hearing the Crown explained that its concession was that the applicant did not appreciate the nature of the charge and did not intend to admit he was guilty of the charge, with the result, as a matter of law, that his misunderstanding of the charge was a sufficient ground for withdrawing his plea and setting aside the conviction. For my part, that concession was understandable in the circumstances which had arisen, with the result, in my view, that the orders made in favour of the applicant had to follow. 26In Blackwell it was explained that in the case of a charge of recklessly cause grievous bodily harm, the offender must have foresight that his or her recklessness might cause the victim grievous bodily harm (see at [80]). 27In evidence below was a statement of facts, which was not agreed, in which various accounts of how the victim came to be injured were referred to. Reference was also there made to statements made by the applicant, who claimed not to be sure if it was he who had hit the victim, who had stepped in to stop a fight in which the applicant was involved. There was also a long ERISP given by the applicant, in which various witness statements were put to him and he came to accept that it might have been his punch, which injured the victim. The applicant also gave evidence at the hearing, to which Basten JA has referred, explaining how he had come to realise that it was one of his punches which had connected with the victim. 28The case which was put for the applicant below was that the injuries which the victim had suffered were not the result of an intentional act on his part, but a reckless one and that because he had been involved in an unlawful act, 'anything that happens as a consequence ... he is guilty of'. 29The applicant was recalled to give further evidence after the Crown submitted that the offence fell within the mid-range of seriousness, having regard to the nature of the injuries, the degree of violence and the mental element. 30This was after her Honour raised with the Crown the question of which of the various versions of the events in question in evidence ought to be accepted. That resulted in the applicant being recalled. He then agreed that when initially interviewed, he had denied hitting the victim; that during the course of the lengthy police interview in which he had participated, when statements made by other witnesses were put to him, he had come to accept that it could have been him who hit the victim; and that it was after several months of consideration, that he had told the police that he accepted that it could have been him. 31The Crown then submitted: "Now, the mental element for the plea or for recklessness in relation to this charge is that the offender would realise the particular kind of harm in fact done to the victim might be inflicted yet he went ahead and acted. So, the Crown says the plea should be accepted on the basis that he did intentionally punch the victim, he may not have realised the degree of harm that would be in fact inflicted." 32That submission did not accord with the view expressed in Blackwell at [82]. Further, on the submissions advanced for the applicant, it was because he had been involved in an unlawful act, that 'anything that happens as a consequence ... he is guilty of'. This submission suggested that the legal advice which the applicant was given, which resulted in his plea, was not consistent with the conclusion in Blackwell at [82], that there must be foresight that the offender's recklessness might cause the victim grievous bodily harm. 33Basten JA has criticised the brevity and terms of Mr O'Brien's affidavit as to the advice which he gave the applicant and the instructions which he received, a criticism which I agree is warranted. Nevertheless, it could not be overlooked that Mr O'Brien was not required for cross-examination and that he had explained in his affidavit that he accepted that the advice which he had given the applicant was in error, given the judgment in Blackwell . Given the case advanced below, it could not, in my view, be doubted that this explanation had to be accepted. 34For his part, in his affidavit the applicant explained that he had impulsively hit someone who had entered his field of vision, while he was fighting with another person, but that he did not contemplate or foresee that one punch would cause any really serious injury. As the Crown accepted, whatever view be taken of this explanation, that the applicant would have entered a plea, had he been accurately advised before entering the plea as to the mental element of the offence with which he had been charged, does not follow. 35That the applicant did have foresight at the time of the alleged offence, that his recklessness might cause the victim grievous bodily harm, is disputed in his affidavit. It is also clear that the advice which he received in relation to his guilt of the offence charged, was erroneous, as was the submission advanced for the Crown as to the mental element of the offence. 36As discussed in R v Hawker [2005] NSWCCA 118 , the question on an appeal such as this is whether the conviction of the applicant consequent to his plea of guilty gave rise to a miscarriage of justice (see at [16]). Like in Hawker , in this case it is also clear that the applicant's plea of guilty was not made with full understanding of the nature of the charge and with the intention of admitting all of the elements of the offence, including the necessary intent in relation to the infliction of grievous bodily harm. In those circumstances it was apparent that a miscarriage of justice arose when the trial judge acted upon the plea, in order to convict the applicant. The result was that orders sought had to be made in the applicant's favour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2012