Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donohoe v R [2012] NSWCCA 176 Hearing dates: 04/06/2012 Decision date: 23 August 2012 Before: McClellan CJ at CL at [1] Garling J at [2] Adamson J at [121] Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) Set aside the order of the District Court of NSW (McLoughlin DCJ) dated 28 October 2011. (4) In lieu thereof, grant leave to the applicant to withdraw his plea of guilty entered on 2 May 2011 to the offence. Catchwords: CRIMINAL LAW - preliminary issue, application for extension of time for leave to appeal on basis of incorrect advice - not opposed by Crown - application granted and time extended - primary issue, application for leave to appeal pursuant to Criminal Appeal Act 1912 s 5F - offence of break and enter and sexual intercourse without consent - Crown's case circumstantial - applicant entered plea of guilty - relied on advice from solicitor and counsel that tendency evidence would be admitted - whether error in District Court decision - central question is admissibility of the tendency evidence - unlikely evidence would have been admitted - satisfied advice affected applicant's plea - error with respect to view of admissibility of evidence and with respect to view that advice was appropriate - whether plea should be allowed to be withdrawn - consideration of facts, context of circumstances - no genuine consciousness of guilt - appellant ought to have been allowed to withdraw plea - application allowed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262 House v The King [1936] HCA 40; (1936) 55 CLR 499 Pfenning v R [1995] HCA 7; (1995) 182 CLR 461 R v Davies (1993) 19 MVR 481 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v Fletcher [2005] NSWCCA 338; (2005) A Crim R 308 R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 R v Hura [2001] NSWCCA 61; 121 A Crim R 472 R v Liberti (1991) 55 A Crim R 120 R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 R v O'Keefe [2009] NSWCCA 121 R v RM [2005] NSWCCA 413 R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310 Category: Procedural and other rulings Parties: Stuart James Donohoe (Appellant) The Crown (Respondent) Representation: Counsel: A Evers (Applicant) N Noman (Crown) Solicitors: M Giles (Applicant) Director of Public Prosecution (Crown) File Number(s): 2010/269989 Publication restriction: Publication restriction removed. Decision under appeal Date of Decision: 28 October 2011 Before: McLoughlin DCJ File Number(s): 2010/269989 Judgment 1McCLELLAN CJ at CL: I agree with Garling J. 2GARLING J: Stuart James Donohoe, the applicant, seeks an extension of time within which he ought be permitted to apply for leave to appeal against a decision of the District Court of NSW (McLoughlin DCJ) of 28 October 2011. 3The applicant had applied to the District Court by Notice of Motion dated 25 August 2011, for an order that he be granted leave to withdraw his plea of guilty to an offence against s 112(2) of the Crimes Act 1900, namely that: "On 18 February 2010, at Bonny Hills in the State of New South Wales, in circumstances of aggravation, did break and enter the dwelling house of Jane Churcher at 1004 Ocean Drive, Bonny Hills, and therein did have sexual intercourse with Jane Churcher without the consent of Jane Churcher and knowing that she was not consenting." 4The application to withdraw the guilty plea was heard on 9 September 2011, when the applicant gave evidence, as did his former solicitor, Mr Stephen Wright. The hearing was completed on 13 October 2011, when counsel made submissions. 5On 28 October 2011, McLoughlin DCJ delivered judgment. In that judgment he dismissed the motion and declined to grant leave to the applicant to withdraw his plea of guilty. That decision is the subject of this appeal. 6The substantive application before this Court is brought pursuant to the provisions of s 5F of the Criminal Appeal Act 1912. 7In the absence of leave being granted to adduce fresh, additional or substituted evidence, an appeal under s 5F, including an application for leave to appeal, falls to be determined on the evidence given in the proceedings below: s 5F(4). That is the position in this application. Proceedings in the Court of Criminal Appeal 8The application was heard by the Court of Criminal Appeal on 4 June 2012, at the conclusion of which, judgment was reserved. 9On 4 July 2012, the Court made the orders which are set out at the end of this judgment. I indicated then that it would publish its reasons as soon as was practicable. 10On 6 July 2012, the Supreme Court granted bail to the applicant. The grant of bail was a conditional one that required the applicant to appear in the District Court in August 2012, when the matter was next listed. It is unnecessary to record all of the conditions. 11These are my reasons for joining in with the making of the orders of the Court on 4 July 2012. Extension of time within which to lodge an application for leave to appeal 12The applicant was obliged to seek leave to appeal by 11 November 2011. In fact, the application for leave to appeal was lodged on 22 December 2011. The reason proffered on behalf of the applicant, was that he had been given incorrect advice that it was inappropriate to appeal until after his sentenced had been imposed. He also supports this application by reference to the difficulties in providing instructions to his solicitors having regard to his being in custody on the North Coast. 13The Crown does not oppose the application for an extension of time. In the particular circumstances of this case, the application should be granted and time should be extended to enable the applicant to seek leave to appeal. Procedural history 14The offence with which the applicant was charged is alleged to have occurred on 18 February 2010. Police spoke to the applicant in the course of that day, but he was not arrested at that time. 15About six months later, the police received results of a DNA analysis from the Division of Analytical Laboratories. On 13 August 2010, the applicant was arrested and charged with the offence upon which he was later indicted. He has been in custody since that time. 16The applicant's trial was listed for hearing on 2 May 2011, at Port Macquarie District Court. 17On that day the applicant was arraigned before Freeman DCJ, and upon arraignment, entered a plea of guilty. 18At the request of counsel for the applicant, without opposition from the Crown, the matter was stood over to 3 May 2011. 19On 3 May 2011, the Court was informed that as a Statement of Agreed Facts had still not been prepared and agreed to, it was necessary that the matter be stood over to the following day. 20On 4 May 2011, proceedings on sentence commenced in front of Freeman DCJ. A Statement of Agreed Facts and the applicant's criminal history record were tendered. An application was made by counsel for the applicant for the matter to be adjourned to a later time for sentence so as to enable the applicant to obtain a pre-sentence report from the Probation & Parole Service, and also a psychiatric report from Justice Health. The matter was adjourned to the sittings of the District Court at Port Macquarie, which were due to commence on 18 July 2011. 21A pre-sentence report dated 4 July 2011 was prepared by the Probation & Parole Service as was a report from Justice Health (Dr D Greenberg) dated 24 June 2011. 22The applicant appeared for sentence on 18 July 2011. At that point in time, an application to withdraw his plea of guilty was foreshadowed, and his then solicitor and counsel withdrew from the matter. 23On 26 August 2011, a notice of motion was placed before the Court seeking that leave be granted to allow the applicant to withdraw his plea of guilty. 24After the notice of motion was filed, it was adjourned until 9 September 2011 for hearing. On 9 September 2011 McLoughlin DCJ heard the matter and at the request of the parties, adjourned the matter to 13 October 2011 for the conclusion of oral submissions by counsel for the parties. Judgment 25On 28 October 2011, McLoughlin DCJ delivered judgment orally. 26McLoughlin DCJ was satisfied of the following matters: (a)the applicant had signed the Agreed Statement of Facts; (b)the applicant had made admissions to a Probation & Parole officer; (c)the applicant received advice from both his solicitor, Mr Wright, and his counsel, Mr Barnett, which was not erroneous, nor was it such as would affect the integrity of the plea of guilty; (d)the advice he had received about tendency evidence was that it may well be admitted, and if it was admitted, that the Crown case against him was thereby strengthened and enhanced; (e)the applicant knew the facts to which he was pleading guilty; (f)the applicant knew and understood the offence to which he was pleading guilty and the nature and effect of it; (g)the applicant had a reasonable period of time between receiving advice from his solicitor and counsel, and when he gave instructions to them to enter a plea of guilty. 27In finding these matters, his Honour rejected, in large part, the evidence of the applicant to the contrary. It seems that on all matters of contest between the applicant and his former solicitor, Mr Wright, his Honour has accepted the evidence of Mr Wright. 28Having found the facts to which attention has been drawn, his Honour considered a question of law which was whether particular evidence referred to in the judgment as the tendency evidence, would or would not have been admitted at the trial of the applicant. It is convenient to note here, at the outset, that before the District Court the Crown sought to tender this evidence on the basis that it was either or both tendency evidence or coincidence evidence. It will be easier to refer to this disputed evidence as "tendency evidence", but both bases for the admission need to be kept in mind. 29The question arose for his Honour's consideration because as the evidence of Mr Wright disclosed, it was Mr Wright's opinion that unless the Crown succeeded in having the tendency evidence admitted, there "...wasn't a great deal at all ..." of evidence in the Crown brief capable of establishing the applicant's guilt of the offence charged. During submissions in the District Court, the Crown accepted, without making any formal concessions, that without the tendency evidence, the Crown case was a weak one. 30It was also important because of the content of the legal advice given to the applicant, and upon which he relied when entering his plea of guilty. 31The Crown's case against the applicant was a circumstantial one. The complainant had not identified the applicant and there was no factual material that directly implicated the applicant as being the offender, nor was there any compelling evidence which placed the applicant at the scene of the crime. He did not know the complainant, and there was no apparent motive for the applicant to commit the offence. 32With respect to the tendency evidence, the trial Judge, in his judgment, addressed the legal test for the admissibility of the evidence, and made reference to some of the relevant authorities on that question. His Honour noted that counsel for the applicant submitted that the evidence would not have been admitted at trial. He rejected that view and said: "I am of the view there may well be an argument that it should not be admitted, however I would not determine that it would not have been admitted on that day, nor at present. Mr Evers also submits that there would be no risk of the discount being reduced because of the testing of the tendency evidence on a voir dire. Again, this is a matter of discretion for the trial judge and, if the evidence was tested by the cross-examination of complainants and that evidence allowed, there would be a real risk of a discount being diminished because of that effect." 33His Honour returned to this subject later in his judgment and said this: "The complaint [the applicant] makes through Mr Evers and in his evidence is that the advice given was in fact wrong. That the tendency evidence would not have been admitted and should witnesses have been challenged in the voir dire, there would have been no reduction to the percentage discount. I do not find either of those matters. It may be that the evidence could have been excluded and it may well have been preferable that the voir dire was taken, if it could have been done on the papers. However if it was not to be done on the papers, there was a real risk of the discount being reduced because of the complainants being required to give evidence and relive their ordeal." 34His Honour concluded that on the factual material before him, and in light of his conclusion about the possible admission of the tendency evidence, the applicant had not established any basis for the withdrawal of his plea. 35His Honour noted these matters immediately prior to announcing his conclusion: "I am not satisfied on balance that the applicant has demonstrated that the advice given by Mr Barnett and Mr Wright was such that it affects the integrity of the plea. The applicant knew the facts to which he was pleading guilty. He knew the offence, he knew that without the tendency evidence, there was a strong defence case. He had been told that the tendency evidence may well be admitted and if so, the Crown case was strengthened and enhanced." Test to be applied under s 5F 36The decision below was one which involved a weighing up of a number of factual and other circumstances, an evaluation of them and the state of mind of the applicant at the time the plea was entered, and ultimately the exercise of a discretion as to whether or not leave ought be granted to the applicant to withdrawn his plea. 37This Court ought not interfere with such a decision, unless it is satisfied, in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499, that the exercise of the discretion by the trial judge has miscarried. Grounds of appeal 38The applicant advances four grounds of appeal. They are: (1)His Honour erred in assessing the admissibility of the tendency evidence sought to be relied on by the Crown at the trial when considering whether to grant the relief sought by the applicant. (2)His Honour erred in failing to consider the evidence to be led at trial in assessing the appropriateness of the advice provided to the appellant by his legal representatives. (3)His Honour erred in failing to make findings as to what advice was provided to Mr Donohoe and what effect that advice had on Mr Donohoe's decision to enter a guilty plea. (4)His Honour erred in refusing to grant leave to withdraw the guilty plea. 39In support of each of these grounds, which it will be necessary to analyse, the applicant submitted that his Honour should have, but did not, address three matters in considering whether or not to grant the application, namely: (a)was the legal advice given imprudent and inappropriate; (b)was the plea of guilty attributable to a consciousness of guilt; (c)was there a real question about the guilt of the applicant; see R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310 per Wood CJ at CL at [20]. 40Spigelman CJ in R v Hura [2001] NSWCCA 61; 121 A Crim R 472 at [33], cited with approval, this passage of Badgery-Parker J in R v Davies (1993) 19 MVR 481: "If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial." 41But in considering an application of this kind, a Court of Criminal Appeal must exercise circumspection. In R v Liberti (1991) 55 A Crim R 120, Kirby P observed at [122]: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea, with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts, is normally to be take be admission by that person of the necessary ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; Sagiv at 81." A Central Question 42Here, the principal submission which is made, and which is central to each ground of appeal, is whether the legal advice that the applicant received about the admissibility of the tendency evidence was correct or not. 43In order to understand whether the legal advice was correct, it is necessary to examine the basis upon which the Crown asserted that the tendency evidence was admissible, and to reach a conclusion about the fate of the evidence if it was tendered. 44The Crown served requisite notices under the Evidence Act 1995 which indicated that it proposed to rely upon either s 97 (tendency evidence) or s 98 (coincidence evidence) or both, in order to tender evidence of facts which underlay two previous convictions of the appellant. The conduct occurred in 2002 and 2006, as a result of which the appellant was sentenced for offences relating to his unauthorised entry into premises of female victims, whom he sexually or indecently assaulted. 45It was said by the Crown that the evidence was being tendered to prove in respect of the 2010 offence, that the applicant had a tendency to act in a particular way, namely to break into the complainant's house at night and have non-consensual sexual intercourse with her whilst she is in bed asleep. 46The last, and most specific of the notices, which was dated 20 April 2011, from the Crown about the tendency and coincidence evidence, was referred to at length in the appellant's submissions. It provided the following particulars of the relevant conduct: (1)On each occasion there was a breaking. (2)On each occasion the breaking occurred after midnight and before sunrise. (3)Each of the dwellings broken into was within walking distance of the accused's then place of residence. (4)On each occasion there was an element of stealth in the breaking in as much as none of the sleeping occupants of the dwelling was awakened. (5)The accused prepared for his exit by opening necessary doors. (6)The accused without waking any person in the dwelling (by stealth) entered the sleeping complainant's bedroom. (7)In relation to the current incident and the 2005 incident the accused undressed. (8)On each occasion the accused attacked the complainant whilst she was asleep in her bed in her own home. (9)On each occasion the touching of the complainant by the accused is what awakens her. (10)Nothing is stolen. (11)No violence beyond the touching complained of occurs in each incident. (12)When the accused is discovered, he does not threaten the complainant, but rather leaves via the prepared route. (13)The victim is not acquainted with the accused. 47Section 97 of the Evidence Act forbids the admission of tendency evidence unless "... the Court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 48Section 98 of the Evidence Act, which deals with coincidence evidence, has a similar restriction on its admissibility. 49Thus, whether the evidence in question amounts either to tendency or coincidence evidence, the Court has to be satisfied that the evidence has significant probative value. In the context of the charge in this case, the evidence could only have significant probative value, if it was capable of identifying the applicant as the person responsible for the offence. 50Because the tendency evidence was being relied upon by the Crown to establish the identity of the attacker as being the applicant, in determining whether the evidence, in fact, had significant probative value, it was necessary for McLoughlin DCJ to keep in mind what this Court said in R v O'Keefe [2009] NSWCCA 121 at [59]: "... If the tendency identified stood alone in identifying the [applicant] as the offender ... it would have to be sufficiently peculiar or singular to amount to what has been described as a 'hallmark' or 'signature' of the [applicant] such that it would offend common sense to exclude it." per Howie J (McColl JA and Grove J agreeing). 51In assessing the evidence as tendency evidence, a trial Judge is engaged in a multi-step process. The first step is to determine the relevance of the evidence: s 56 Evidence Act (Cth). The next step is that an assessment needs to be made of the extent to which the evidence in question has the capacity to rationally affect the probability of the existence of the fact in issue. The third step, assuming the evidence has the requisite capacity, is for the trial judge to make a further assessment, and prediction of the probative value that the jury might ascribe to the evidence. This step assumes that the jury will accept the evidence: DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262 at [56] per Whealy JA; R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 at [33]. 52There is then a further step, which is required by s 101(2) of the Evidence Act, namely that the evidence cannot be used unless "... the probative value of evidence substantially outweighs any prejudicial effect it may have on the defendant" R v Ellis [2003] NSWCCA 319; 58 NSWLR 700. 53The test to be applied is whether the admission of the evidence involves a risk of an unfair trial: R v RM [2005] NSWCCA 413; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [58]. As McHugh J said in Pfenning v R [1995] HCA 7; (1995) 182 CLR 461 at [40]: "The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adding all relevant evidence of guilt must have priority over the risk of an unfair trial". 54It is only after an assessment has been made by a trial Judge of each of these matters and in accordance with the appropriate legal principle, that tendency evidence can be, or be said to be, admitted. 55It is obvious that in order to undertake such an assessment that two factors must be kept in mind. The first is that the precise identification of the fact in issue is ordinarily integral to the process. Unless the trial Judge knows what the fact in issue is, it is not feasible to make the necessary assessments: R v Fletcher [2005] NSWCCA 338; (2005) A Crim R 308 per Simpson J. 56The second matter which must be kept in mind is that the more general the tendency evidence relied upon is, then the less likely it is to have sufficient probative value to outweigh the prejudicial effect arising from tendency and coincidence evidence generally: R v O'Keefe at [60] per Howie J (McColl JA and Grove J agreeing). 57It is necessary to analyse the proposed tendency evidence with these principles in mind. The fact in issue in this case was the identity of the applicant as the offender. The points relied upon by the Crown, which have been set out in [46] above, assuming that they all apply in the index offence, are of some generality. 58For example, the fact that there was a breaking and entering by stealth and without waking any occupants, at a time between midnight and dawn, are facts of such generality that they do not, in my view, demonstrate a tendency or coincidence towards the fact in issue. The fact that the victim is not acquainted with the attacker is itself not at all remarkable. A significant number of offences of the relevant kind occur in circumstances where the offender and the victim are unknown to each other. 59None of the contentions set out in [46] seems to me to fall within the description given by Howie J in O'Keefe. None of these features, either alone or in combination, is peculiar or singular, nor do any of them give rise to what could be described as a "hallmark" or "signature" of an identified individual. 60As well, even if there was some probative value, there is significant prejudicial value in evidence giving rise to two previous convictions being put before a jury which is being asked to consider the guilt of the applicant of a third offence. The fact that a person has previously been convicted of two broadly similar offences is a prejudicial fact to be put before a jury. It may unfairly distract the jury from considering by reference to the relevant onus, the guilt or innocence of the offender of the offence charged on the indictment before them. Ordinarily, for that reason, evidence of previous convictions is not admissible. 61In all of those circumstances, and having regard to the whole of the process that must be undertaken by a trial Judge including the ultimate balancing process, my conclusion is that it is highly unlikely that the evidence sought to be tendered by the Crown would be admitted at any trial of the applicant. 62Such a conclusion is necessarily a predictive one. That is because the exercise contemplated by s 97 (and s 98) of the Evidence Act is a predictive and evaluative one, and is not a scientific one with a clear or rigid answer. On occasions, reasonable minds might differ with respect to admissibility: Fletcher at [35]. 63However, in this case, I do not regard the central question as to admissibility as being finely balanced. On the contrary, for the reasons expressed above, I have concluded that it is highly unlikely that such evidence would be admitted at a trial. 64The trial Judge did not reach a similar conclusion about the admissibility of the evidence. His conclusion was that it could be that the evidence may have been excluded. This expresses as a mere possibility, which I have concluded as being highly unlikely. His Honour fell into error in expressing his conclusion as he did. The Legal Advice 65As has been noted above at [27], McLoughlin DCJ accepted the evidence of Mr Wright, the applicant's solicitor, rather than the evidence of the applicant. No complaints have been, nor can they be, made with respect to this preference. Accordingly, it is necessary to examine Mr Wright's evidence, to identify with some precision what the advice was that was given by Mr Barnett of counsel. It was the principal relevant advice. 66Paragraph 24 of Mr Wright's affidavit of 1 September 2011, referred briefly to Mr Barnett's advice. It said: "The advice from counsel was that 'we could run the voir dere [sic] but if we fail and the evidence is admitted there is a much greater chance of a guilty verdict and you then lose the value of an early plea'. Counsel was merely outlining the worst possible scenario. When the deponent understood those issues he agreed to the facts as presented of his own volition." 67In the course of his evidence, some more details of Mr Barnett's advice were elicited. The evidence appears in a number of separate parts of the transcript. It is appropriate to set out here the relevant parts. At T17.13, (9 September 2011) Mr Wright said: "And we told him that the way the case was going to be presented, particularly if the tendency evidence is admitted, then the case would become difficult for him and it was my advice that as his solicitor, I wouldn't take that risk. And the other thing I advised him as well, was that if that evidence did get admitted, then the trial would begin and he would lose the benefit of a plea, which he understood as well and he conveyed to me his reaction was, well if that evidence is admitted, they weren't his words, but if that gets in, such is life. ..." 68At T28.4, Mr Wright gave further evidence on this topic. He said: "Q. And are you able to say what advice he was - he gave Mr Donohoe? A. Yes, Mr Barnett concentrated on three aspects of the case, the fact that the alibi did not exist; that the DNA evidence did not eliminate my client; and that the tendency coincidence evidence, particularly the statements of the previous victims, was very compelling, but 'compelling' may not have been the word he used. Q. But that was the effect of the words he used? A. Mm. Q. So, the effect of what he was saying was the tendency and coincidence evidence would have been admitted in his trial? A. No, no, no, he said that if it did get admitted into his trial then it would represent an overwhelming case. Q. Did Mr Donohoe -- A. Prosecution case. Q. -- ask Mr Barnett, in your presence, what were the prospect of that evidence being admitted into his trial? A. He did. Q. And what was Mr Barnett's response? A. Strong, a strong chance of that material being admitted to the case." 69In light of this evidence, and the content of the advice from Mr Barnett that there was a "strong chance" of the tendency evidence being admitted at a trial, it is unsurprising that the applicant's evidence in his affidavit was: "[31] ... My understanding from what [Mr Barnett] was telling me was that the Judge would be likely to let the prosecution rely on tendency evidence, and that I would likely lose at trial." 70The trial Judge recorded accurately and accepted that Mr Barnett's advice was that there was a strong change of the tendency evidence being admitted. He rejected the submissions of the applicant's counsel that this advice was erroneous, and said: "It may be that the evidence could have been excluded ... I am not satisfied that ... the advice given by Mr Barnett and Mr Wright was such that it affects the integrity of the plea." 71In light of my conclusions, which I have earlier expressed, that it is highly unlikely that the tendency evidence would be admitted, then the advice given by Mr Barnett, which was to the opposite effect, was erroneous and inappropriate. Because that advice was delivered in a way which coupled counsel's view as to the admissibility of the evidence, with his view as to likely consequences if the evidence was admitted, I am satisfied that the erroneous and inappropriate advice must have affected the integrity of the plea of guilty entered by the applicant. Is there an error in McLoughlin DCJ's judgment? 72It is necessary, before this Court interferes with the exercise of a discretion, which undoubtedly McLoughlin DCJ was exercising in this case, for there to be an error identified of the kind described in House v The King. 73His Honour's conclusion was that the evidence may be admitted and that he did not need to determine whether it would or would not be admitted. He also concluded that counsel's advice was appropriate. 74His Honour's conclusion does not seem to have involved a consideration of each of the steps leading to a determination of whether the evidence would be admissible, to which I have earlier referred. This is hardly surprising. The trial Judge was not directly reminded of these steps by counsel. His Honour was not reminded of the requirements of s 101 of the Evidence Act to undertake an ultimate balancing exercise. His Honour was conducting a busy circuit. It is appropriate here to again note that it is counsel's duty to ensure that the presiding judge is provided with all appropriate assistance. 75His Honour did not consider, as a separate issue, whether even if there was a possibility of the tendency evidence being admitted, the provisions of s 101(2) of the Evidence Act, having regard to the fact that the evidence would undoubtedly reveal the previous convictions of the applicant, would have resulted in the balance falling in favour of the applicant and the evidence being excluded, or some other result. 76As I have earlier said, his Honour was in error with respect to his view about the admissibility of the tendency evidence. 77It follows from the conclusion that I have expressed above, that his Honour's conclusion that the advice given by counsel was appropriate, was also in error, and that the erroneous and inappropriate advice affected the integrity of the plea. 78In light of these conclusions, it is appropriate to separately, but briefly, consider each of the grounds of appeal. Ground 1 - Admissibility of the tendency evidence 79The applicant challenges his Honour's conclusion about the admissibility of the tendency evidence. He submits that his Honour erred in concluding, as he did, that it may be that the evidence could have been excluded. 80For the reasons which I have earlier discussed, his Honour's conclusion was in error and it follows that this ground succeeds. Ground 2 -Appropriateness of the legal advice 81Ground 2 asserts error in respect to the conclusion about the appropriateness of the advice provided. 82For the reasons that I have earlier expressed, the legal advice provided to the applicant was not appropriate. 83This Ground succeeds. Ground 3 - Content and effect of Advice 84Ground 3 asserts error in failing to make findings as to what advice was provided to the applicant and what effect that advice had on his decision to enter a guilty plea. 85His Honour identified the advice that was in fact given. He found that he preferred the evidence of Mr Wright as to what had been said and that in substance the advice that he had received about the tendency evidence, was that there was a strong chance that it would be admitted, and if it was admitted, that the Crown case against the applicant was thereby strengthened and enhanced. 86This conclusion as to the content of the advice given to the applicant was one which was open on the evidence, and substantially accorded with the evidence that Mr Wright gave. There is no error demonstrated with respect to the advice, which the trial Judge found. 87It is also argued under Ground 3, that the trial Judge did not make any finding about what effect the advice had on the applicant's decision to enter a guilty plea. 88However, his Honour did find that the advice was taken into account by the applicant. He concluded that the advice, having regard to the other matters, did not affect the integrity of the plea. This finding, which has been set out at [35] above, demonstrates contrary to the applicant's argument, that in fact the trial Judge did consider the effect of the advice on the entry of the plea. 89I would not uphold Ground 3. Ground 4 - Error in refusing to grant leave to withdraw plea 90Ground 4 raises a question as to whether his Honour was in error in refusing to grant leave to withdraw the guilty plea. 91In light of the fact that I am persuaded that Grounds 1 and 2 should be upheld, and that the errors disclosed go to a central question of a consideration of whether the guilty plea should have been permitted to be withdrawn, it follows that his Honour's exercise of his discretion was erroneous and it is a matter for this Court to exercise the discretion afresh. 92In light of these conclusions, there is no need to further consider this Ground. Should the plea be allowed to be withdrawn? 93In my opinion, for the reasons that I have expressed above, it is highly unlikely that the tendency evidence would be admitted at trial. 94The Crown case at trial, in the absence of that evidence, is properly to be assessed as not a strong case against the applicant. There is undoubtedly a strong case that the complainant was assaulted. The issue is whether the person responsible for that assault was the applicant. The description given by the complainant does not readily fit that of the applicant. There is no other material that independently establishes that the applicant was at the scene of the crime. The DNA evidence is not of sufficient probative value to establish that fact. 95In the course of submissions before McLoughlin DCJ, the solicitor for the Crown informed his Honour that if the tendency evidence was not admitted it would significantly weaken the Crown case, and further, that it was his "feeling" that without that evidence, there would be insufficient evidence to warrant a conviction. He made no formal concession to that effect. 96The tendency evidence was necessary in the Crown's case, to identify the applicant as the person responsible for the assault. If it is not admitted, there is a real prospect that a jury would not be persuaded that the applicant should be convicted. 97Ordinarily, where a person accused of an offence has a reasonably arguable defence or there is some doubt about the strength of the Crown case, the interests of justice would compel a conclusion that the accused person ought have the opportunity to have a trial so as to hear the Crown's case, and hence leave ought be granted to withdraw a plea of guilty to enable a trial to take place. 98However, in this case, telling against the granting of that leave is the fact that the applicant did in fact enter the plea, and did so after signing the Statement of Facts. By signing the Statement of Facts, the applicant was apparently acknowledging the correctness of them. As well, the applicant apparently admitted his guilt when interviewed after his guilty plea. 99The question is therefore whether the plea of guilty is attributable to a consciousness of guilt, or else is a genuine recognition of the applicant's guilt. 100There can be little doubt, as his Honour found, that the applicant knew the elements of the offence to which he was pleading guilty. His Honour concluded, as it was open to him to do, that by signing the Statement of Agreed Facts, the applicant knew of those facts to which he was pleading guilty. 101The applicant's evidence was, in substance, that his plea of guilty was entered out of concern for the consequences of a conviction, and in an attempt to ensure that he had access to a real and identifiable discount for his plea of guilty. He said, in effect, that at no time did he genuinely intend to admit his guilt. He did so simply in recognition of what he thought was the likely outcome. 102Mr Wright, the applicant's former solicitor, confirmed in his evidence the following: (a)that at all times up until after he received advice from counsel, the applicant had maintained to him that he had not committed the offence; (b)the first occasion upon which Mr Wright advised the applicant about the precise nature of the tendency evidence was on 2 May 2011, which was the first day he was brought to court for the purpose of his trial, and the day upon which his plea of guilty was entered; and (c)the applicant was not happy about the advice he was receiving and the course he was taking, and having to inform his mother of that change of plea. 103The Probation and Parole Service Report dated 18 July 2011 included the following: "When questioned in regards to the offences, Mr Donohoe denies some of the agreed Statement of Facts. He admitted to being under the influence of alcohol and cannabis at the time of the offence, however, maintains there was no sexual intent; his initial intention was to break in to steal money. He claims that he plead guilty so as to avoid the victim having to attend court." 104Mr Donohoe stated he was remorseful and empathetic to the victim, citing it as a "spur of the moment act", and was ashamed of his behaviour. 105However, Mr Donohoe continued to place the blame for committing the offences on his alcohol, drug and relationship issues. He stated he knew what he was doing "was wrong and did not see it as a sexual act but more as a release from his current situation". 106There is some difficulty with the accuracy of this "admission". The description given by the victim of what in fact was done to her, could not be interpreted as conduct which revealed anything other than a clear sexual intent. The attacker had removed his clothes and was sexually assaulting the victim. It was not a chance encounter. Nor is there any evidence that any attempt was made to steal any money, or that there was money available to be stolen. 107In the report of 24 June 2011 from Justice Health (Professor Greenberg), the following is contained: "With regard to the offences he acknowledges he touched the victim's vagina with his fingers while she was asleep in bed but states that he thought he wasn't doing any harm. He acknowledges that he has previously been convicted of a sexual offence but stated there was no sexual element to this behaviour." 108This description of the criminality involved in the sexual assault is completely at odds with the content of the victim's complaint. The victim complained that she was sexually assaulted by an attacker who, whilst naked, was engaged in oral vaginal intercourse. This was followed by quite a violent struggle during which the attacker continued to attempt to sexually assault her. 109The admissions to the Probation and Parole Service and Justice Health, do not of themselves recount any facts which suggest a familiarity with the Agreed Statement of Facts and the events in question. I do not regard these admissions as being a genuine confession of guilt. They reflect an attempt by the applicant to provide the information that he thought necessary for the purpose of obtaining a favourable report to assist with the sentencing process. 110There is no doubt that the applicant was advised that if he was to enter a plea of guilty, that he might expect a discount on any sentence. Having regard to his previous criminal history, he no doubt well understood this fact. 111In an affidavit sworn as part of his evidence before the District Court, the applicant said this: "I was taken back down to the cells and a short time later Mr Wright came down to speak to me. I said to him 'I am not guilty, why did I do this?' He said, 'It's too late now, it's done'. " 112Mr Wright refuted this evidence in his affidavit, asserting that the applicant had "... agreed to the facts as presented of his own volition". 113The trial Judge accepted the evidence of Mr Wright in preference to that of the applicant. Since I have seen neither Mr Wright nor the applicant give that evidence, there is no basis upon which it can be said that that finding by the trial Judge was erroneous. 114However, it is clear that within a short time after the entry of the plea of guilty, the applicant sought to make contact with alternative legal advisors and when the matter was next before the Court, the applicant's withdrawal of the plea was foreshadowed. In other words, he, at the first available time the matter was next before the Court, indicated that he wished to withdraw his plea, as it did not reflect any consciousness of guilt. 115In assessing whether the applicant's plea reflected a genuine consciousness of guilt, it is necessary to consider the context in which he gave the instructions. What he was being told was that the tendency evidence was likely to be admitted and, as a consequence, he would be convicted. His choice to plead guilty was made immediately after that advice was given and the plea was entered before the Statement of Facts was agreed. 116In those circumstances, I am satisfied that the plea reflected the advice he was given, rather than any genuine consciousness of guilt. His agreement to the Statement of Facts was a step in the process necessary to give effect to his plea. 117Having regard to the evidence which was before the trial Judge, and the circumstances of the advice which he received, I cannot be satisfied that the plea of guilty was in fact entered with any genuine consciousness of guilt. It was entered, so it seems to me, based upon erroneous advice for the purpose of achieving a shorter sentence. 118In all of those circumstances, I am satisfied, in accordance with the authorities, that the advice the applicant received was not appropriate, the entry of the plea of guilty did not reflect a genuine consciousness of guilt, and the applicant ought be permitted to withdraw his plea. Conclusion 119In all of the circumstances, I am of the view that the applicant should have been granted leave to withdraw his plea, and orders should now be made to give effect to that conclusion. Orders 120It was for these reasons that I proposed the making of the following orders, which the Court made on 4 July 2012: (1)Leave to appeal granted. (2)Appeal upheld. (3)Set aside the order of the District Court of NSW (McLoughlin DCJ) dated 28 October 2011. (4)In lieu thereof, grant leave to the applicant to withdraw his plea of guilty entered on 2 May 2011 to the offence. 121ADAMSON J: I agree with Garling J. ********** Amendments 06 July 2015 - Publication restriction removed. 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: 06 July 2015