District Court New South Wales Medium Neutral Citation: Samantha KNIGHT v R [2012] NSWDC 271 Decision date: 30 October 2012 Before: Cogswell SC DCJ Decision: 1. Leave granted to appeal against conviction. 2. Conviction set aside and matter remitted to Bourke Local Court for redetermination. Catchwords: CRIMINAL LAW - Appeal against conviction recorded on guilty plea - offence of driving while suspended - whether circumstances when plea entered affected integrity of plea as an admission of guilt - busy regional court, brief conversation with lawyer at lunchtime - day after conviction appellant advised lawyer should have entered not guilty plea because driver was her sister. Legislation Cited: Crimes (Appeal and Review) Act 2001 s 12(1), s 20(1)(c). Cases Cited: R v Sagiv (1986) 22 A Crim R 73. Category: Principal judgment Parties: Samantha Knight (Appellant) Regina (Crown) Representation: Counsel: J Thompson (Appellant) Solicitor: I Siriwardana (Crown) File Number(s): DC 2012 / 227127 Judgment 1This is a case where I have to decide whether to set aside a plea of guilty which Samantha Knight entered before a magistrate at the Local Court. 2What happened was this. She was driving her car on 16 June this year when the police stopped her. She was driving while suspended. She had been suspended for not paying a fine. The fine was for speeding and not displaying a P plate. 3Samantha Knight told the policeman it was not her. Frankly and commendably the policeman said he knew it was not her. He had seen a photograph of the driver who was speeding and not displaying her P plate. As it happened, Samantha Knight's sister was in the back of the car at the time. The policeman looked in the back and said "That is the woman." 4A few days later, at the policeman's suggestion, Samantha Knight contacted the State Debt Recovery Office about the fine. She told them what had happened. They said she could drive "in 12 to 24 hours." 5Samantha Knight started driving a couple of days later but on 15 July she was stopped again by the police. They charged her with driving while suspended. She went to court on 6 September 2012. She pleaded guilty and was convicted. She now wants to appeal against that conviction despite pleading guilty. She needs permission from this Court to appeal since she had pleaded guilty and I have to decide whether to allow her to reverse her plea of guilty. 6She was represented by Mr Adam Barnes in the Local Court. The Court was very busy. She had a short conference with him but she did not tell him what had happened a few months earlier. When she got home she had a talk to her grandfather. He correctly said she should not have pleaded guilty. She contacted Mr Barnes again and told him what had happened. 7Mr Barnes supported that account by his client. Samantha Knight has waived the privilege which she has over Mr Barnes's talking about the case. In an affidavit he said how busy the Court was on that day. He was representing about forty clients and the Court sat past 7 o'clock at night. He realised Samantha Knight was pregnant and he gave her priority, having a quick conversation with her at lunchtime. He gave an account of what she had told him and it did not include what had happened a few months before. He gave her some advice and pleaded guilty on her behalf. She was fined and received a twelve month disqualification from driving. 8Significantly in my opinion, the next day (7 September 2012) when he got to work he had a message from Samantha Knight. It read: "Samantha Knight - BKE court yesterday - PG entered - feels should've been PNG - reasons: driver was my sister...Renee Mackellar - I wasn't the driver." 9Mr Barnes contacted his client and she came in a week later. He asked why she gave instructions to plead guilty. She told him she "was confused at court and it all happened too quickly". That account is consistent with how busy the Court was on that day, as described by Mr Barnes. 10Mr J. Thompson of counsel appeared for Ms Knight on this appeal and Ms I. Siriwardana appeared for the respondent, the Director of Public Prosecutions. Mr Thompson provided an affidavit from his client sworn 26 October 2012 and an affidavit from Adam Barnes, her solicitor, sworn 29 October 2012. EXHIBIT #A AFFIDAVIT OF APPELLANT DATED 26/10/12 TENDERED, ADMITTED WITHOUT OBJECTION EXHIBIT #B AFFIDAVIT OF MR BARNES DATED 29/10/12 TENDERED, ADMITTED WITHOUT OBJECTION 11Mr Thompson filed in court an application for leave to appeal and an amended notice to appeal. Ms Knight was examined by Mr Thompson and cross-examined by Ms Siriwardana, but in my opinion the substance of her evidence in the affidavit did not change. Ms Siriwardana very helpfully took me to the relevant case law, including a decision of the New South Wales Court of Criminal Appeal in R v Sagiv (1986) 22 A Crim R 73. In a judgment by Lee J, as his Honour then was, with whom McInerney and Campbell JJ agreed, his Honour said the following at 80: "The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave." 12I accept Samantha Knight's evidence about the circumstances in which she entered the plea, Mr Barnes's account of his conversations with her and the circumstances of the Court. She told him just a week or so after her plea of guilty that she "was confused at court and it all happened too quickly". 13Those circumstances affect the integrity of the plea which Ms Knight has entered as an admission of guilt, and I propose to allow her appeal. 14The formal orders I make are these. Under s 12(1) of the Crimes (Appeal and Review) Act 2001 I grant leave to Samantha Knight to appeal against her conviction. Under s 20(1)(c) I set aside the conviction and I remit the matter to the Local Court at Bourke for redetermination. HIS HONOUR: It says that I may give directions. What I propose to do is to direct a transcript of these proceedings, including my judgment, be taken out and put on the Court file. Are there any directions which either of you suggests I should give? I can't think of any because really it's a matter for the Local Court to redetermine. THOMPSON: I have none your Honour. SIRIWARDANA: For the assistance of the Registry giving it a next court date might assist. DISCUSSION AS TO A SUITABLE DATE 15I list the matter for mention at the Local Court at Bourke on 22 November 2012 and I direct a transcript of these proceedings before me, including my judgment, be taken out and, after revision by me, be placed on the Court file. If possible that transcript should be made available to me before 22 November 2012. SIRIWARDANA: I understand with regards to her licence that a stay was granted. Just for the sake of clarity, is your Honour minded to continue that? HIS HONOUR: By whom and when was the stay granted? SIRIWARDANA: As a result of her lodging the severity appeal initially regards disqualification-- THOMPSON: The records show I think that Ms Knight is under a current suspension that expires on 26 November this year and on that day she'll be able to return to the RTA and regain her licence. I think the affect of-- HIS HONOUR: There's a stay on the disqualification. THOMPSON: Having made the orders your Honour's made there's no disqualification or suspension in place in relation to that particular offence. HIS HONOUR: It sounds as though I don't have to do anything. ********** 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: 13 March 2013