Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Senior v R [2017] NSWCCA 220 Hearing dates: 4 September 2017 Date of orders: 04 September 2017 Decision date: 11 September 2017 Before: Basten JA at [1]; McCallum J at [41]; Wilson J at [42] Decision: Refuse the applicant leave to appeal against conviction. Catchwords: CRIME – appeal – application for leave to appeal convictions for dangerous driving – convictions based on guilty pleas – whether pleas attributable to genuine consciousness of guilt – whether pleas entered without full understanding of consequences – whether miscarriage of justice CRIME – appeal – challenge to conviction based on guilty pleas – whether advice of applicant's legal representative to enter guilty pleas was imprudent and inappropriate – whether incompetence of counsel resulted in miscarriage of justice Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: R v Birks (1990) 19 NSWLR 677 Ignjatic (1993) 68 A Crim R 333 Liberti (1991) 55 A Crim R 120 McLean v R [2001] NSWCCA 58; 121 A Crim R 484 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 R v Murphy [1965] VR 187 Reg v Chiron [1980] 1 NSWLR 218 Regina v SL [2004] NSWCCA 397 Wilkes v R [2001] NSWCCA 97; 122 A Crim R 310 Category: Principal judgment Parties: Jason Neville Senior (Applicant) Regina (Respondent) Representation: Counsel: Dr S Baron Levi (Applicant) Mr E Balodis (Respondent) Solicitors: Rivera Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2005/71390 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 April 2016 Before: Robison DCJ File Number(s): 2005/7139 Judgment 1. BASTEN JA: On 8 July 2004 a semi-trailer driven by the applicant, Jason Neville Senior, collided with a motor vehicle on the Pacific Highway near Nerong, south of Bulahdelah. On 8 May 2006 the applicant was arraigned on an indictment containing two charges of driving a vehicle in a manner dangerous to another person and occasioning grievous bodily harm. He entered pleas of guilty in open court on both counts. The matter was adjourned for sentence, but from 1 September 2006 the applicant failed to appear in court. He was eventually arrested on a bench warrant on 25 February 2016. On 15 April 2016 he appeared before Robison DCJ in the District Court and was sentenced on each count to imprisonment for 3 years 9 months, with a non-parole period of 2 years and 3 months for each offence. 2. There is no challenge to the calculation of the sentences; rather, the two grounds of appeal contained in a notice of appeal filed on 5 May 2017 challenged his conviction on each count. The grounds read as follows: "(1) The Appellant's plea of guilty is not attributable to a genuine consciousness of guilt and was entered without a full understanding by the Appellant of the implications and consequences of his doing so. (2) Alternatively, the advice of the Appellant's legal representative to enter the plea was imprudent and inappropriate." 1. The proposed grounds depended primarily on questions of fact and did not involve questions of law alone. Accordingly, leave was required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). 2. At the conclusion of the hearing on 4 September 2017 the Court refused the applicant leave to appeal against his convictions. Factual background 1. The facts of the collision may be sufficiently identified by reference to the statement of facts relied upon at the sentencing hearing. The accident occurred at 11pm on Thursday, 8 July 2004 whilst the applicant was driving a prime mover and trailer loaded with 18 pallets of ceramic tiles weighing 24 tonnes north on the Pacific Highway. The Highway at the point of the collision had one lane in either direction, separated by a double unbroken line as the north bound lane curved to the left. In negotiating the left hand bend, the applicant allowed his vehicle to cross to the incorrect side of the road as a result of which a station wagon being driven by Mr Hong collided with the trailer with sufficient force that the station wagon rolled once before coming to rest on its wheels. Four pallets of tiles were dislodged from the applicant's load and hit the station wagon. 2. A passenger in Mr Hong's car, Ms Zhou, stated that the truck stopped further up the road but no one got out of the truck and it then drove away. 3. Queensland police spoke to the applicant the following day and inspected the truck, from which four pallets of tiles were missing. The applicant denied being in the Nerong area at the time of the collision and had falsified his logbook records to indicate that he was not there. The records conflicted with Safe-T-Cam and mobile phone records obtained by the police. The applicant also told the police that the missing pallets had been stolen off the truck in Sydney. 4. The applicant was charged with a number of offences, including negligent driving occasioning grievous bodily harm with respect to the injuries occasioned to both Mr Hong and Ms Zhou; driving an unsafely loaded vehicle causing personal injury; failing to stop after an accident causing injury and failing to give particulars to an injured person. On 21 September 2005 he appeared at Newcastle Local Court and was committed for trial. He was arraigned before the District Court on 20 October 2005 and entered pleas of not guilty. On several occasions thereafter, he failed to appear, although he kept in touch with his solicitor, Mr Kiely. When he appeared on 8 May 2006, he changed his plea to guilty on two counts of dangerous driving occasioning grievous bodily harm. The matter was adjourned for sentence to 3 August 2006. 5. On 3 August 2006 the matter was adjourned for sentence on 1 September 2006, on which date he sought to withdraw his plea and proceed to trial. Thereafter he failed to appear at court hearings and a bench warrant was issued for his arrest. 6. The warrant was executed on 25 February 2016 when, whilst driving from Victoria to Queensland, he was stopped for a traffic offence in New South Wales and arrested. 7. On 15 April 2016 the applicant appeared for sentence represented by a solicitor, Mr Evan Corcoran and counsel, Mr John Fraser. Subsequently, the applicant obtained new solicitors and new counsel who prepared the notice of appeal and appeared in this Court. Evidence as to entering pleas 1. The evidence relied upon by the applicant in this Court consisted of an affidavit apparently prepared in draft form and provided to the Crown Prosecutor six days before the hearing. It was not provided to the Court until after the hearing commenced. 2. The applicant gave evidence that he had a number of meetings with lawyers before he entered pleas on 8 May 2006. He stated that he intended to plead not guilty at all stages, "because I didn't know that any accident had happened that night until I was later told that there had been an accident. I didn't know at the time of the accident that any pallets had fallen off my truck or that the accident had occurred. I didn't know how the pallets had come off my truck and even to this day I don't know how they actually came off." [1] 3. The critical passage in relation to the entry of the pleas was in the following terms: [2] "I remember when I agreed to change my plea. It was during a meeting with [Mr Kiely] in the Legal Aid room at the court house at Newcastle on one of the days my matters were in court. … I remember that during this meeting with [Mr Kiely] he and I were going through the Police Facts Sheet. I remember that we had a conversation which was along these lines: He said: 'You still want to plead not guilty to the three charges and you still disagree with these facts?' I said: 'That's right. I don't agree with these facts. They've never been right because that's not what happened. I didn't know the pallets had come off, I didn't know there was an accident and I wasn't driving dangerously. … I could plead guilty to the unsafe loading charge given they were my pallets, but I'm not pleading guilty to dangerous driving.' He said: 'The best thing to do is to plead guilty and fight the facts. There would still be a trial.' I said: 'Okay'." 1. The applicant apparently believes that he went before a magistrate and entered pleas of guilty. That cannot be right; as noted above, the only pleas were entered in the District Court, upon arraignment on two charges (not three) of dangerous driving. The applicant thought that the "magistrate" had asked him why he had changed his plea and said he was told by the magistrate "that I had to find new representation." [3] He also claimed that the prosecution required an adjournment to "make some enquiries in relation to one of the prosecution witness's statements." The purpose of this evidence appears to have been to explain why he later failed to attend court. He may have been confused as to an earlier event; the transcript of the hearing on 8 May 2006 indicated that the pleas were taken and that counsel appearing for him asked that the matter go over for the purpose of preparing a pre-sentence report. 2. The Director read an affidavit prepared by Mr Kiely, also dated 1 September 2017. With respect to the conversation set out above, Mr Kiely stated: [4] "In respect to paragraph 11 I say that there were meetings at the Court House. I cannot say whether Mr Senior's instructions to change his pleas were taken there or at the Legal Aid office nearby to the Court House. I have no recollection about discussing disputing the facts but I could have told him that he could do so if he accepted he was guilty but wanted to contest some of the facts if they could not be agreed with the DPP." 1. With respect to the advice given, although Mr Kiely had no access to a file from 2006, he had some recollection of the matter, which he set out: [5] "I recall that Mr Senior had been charged with some dangerous driving matters arising out of an impact between his truck and a vehicle on the Pacific Highway near Bulahdelah. It was alleged Mr Senior's truck had crossed to the incorrect side of the road, impacting a car driving in the opposite direction. The other vehicle was carrying overseas tourists, who were injured and taken to hospital. It was alleged Mr Senior did not stop and was arrested after he arrived in Brisbane. Part of the load on the truck had become dislodged. I remember there was an issue as to the number of pallets of tiles loaded compared to those on the truck when it reached Brisbane, taking into account those that had fallen from the truck at the time of the collision. I recall Senior instructing me that he thought someone had stolen some of the load before at some stage during the journey. I recall the brief contained various pieces of evidence whereby Mr Senior's journey from Sydney to Brisbane was tracked by police, including safety cameras and telephone records. I recall these indicated Mr Senior had stopped somewhere on the mid-North coast. I also recall there was an issue about Mr Senior's route between leaving the place where he loaded the [tiles] and heading towards Brisbane. …" Mr Kiely also recalled briefing then public defender, Mr Terry Golding. He recalled Mr Golding's view that a jury would be likely to convict. He then conferred with the applicant and received instructions to enter pleas of guilty. 1. So far as his appearance for sentencing in April 2016 was concerned, the applicant noted in his affidavit that he was represented by a private barrister from Queensland (Mr Fraser) and continued: [6] "I said to him something along the lines of, 'they said they'd fight the facts. I wasn't driving dangerously, I had no idea that my pallets had come off or that there was an accident' and he said to me something along the lines of 'I'll play the facts down and we'll see how it goes.' I first spoke to this barrister about 10 minutes before my sentence hearing." 1. On 22 August 2017 the Director had obtained an affidavit from the solicitor, Mr Evan Corcoran, with respect to the events of 15 April 2016. Mr Corcoran stated that he attended the Newcastle District Court cells with Mr Fraser to confer with the applicant. He stated that he "read the contents of the indictment and the schedule of facts to Mr Jason Senior and both the indictment and strength of the Crown case was explained to Mr Senior by Mr Fraser". [7] The affidavit continued: "4. Mr Senior was advised by me that he did not have to plead guilty or accept the facts as put forward by the Crown for the purpose of his sentence and could contest either the indictment or the schedule of facts if he chose to do so. 5. Mr Senior did express to me verbally that he wanted the matter dealt with immediately and I then said to him that I would need instructions from him and that if he wished to plead guilty to the indictment, then I requested that he read the indictment and indicate on the face of it in writing that he wished to plead guilty which he did in my presence. 6. I then gave to Mr Senior the schedule of facts and I asked him to read each and every page of the schedule of fact and if he was in agreement with the facts as contained within the schedule of fact, then to sign each and every page of the schedule of fact to indicate that he had read and understood the facts which would be presented by the Crown and he indicated he did not wish to contest the facts or the indictment and wanted the matter dealt with by way of a sentence." 1. Mr Corcoran annexed to his affidavit a copy of the indictment, at the foot of which appeared the statement, "I Jason Senior wish [sic] guilty to above charge", followed by his signature. Mr Corcoran also annexed a copy of the statement of facts initialled on each page by the applicant. 2. In oral evidence Mr Corcoran stated that he and Mr Fraser had conferred with the applicant for approximately one hour before the hearing. 3. Mr Corcoran also annexed to his affidavit two handwritten letters from the applicant, one being a short covering letter addressed to the principal of Mr Corcoran's practice. To the one page covering note a lengthy handwritten document was attached which was proffered as a document which might be handed to the court. The covering letter also stated: "I would like to get this over & done with I think. If you feel I'm better of[f] just being sentenced on the 17th of April then I would like to just go with that or if you can get lesser charges that would be even better." 1. The lengthy letter contained a personal history of the applicant which, if accepted without the applicant entering the witness box, might have contained some material relevant to his subjective circumstances. It contained a statement accepting that the accident was "caused from part of my load falling from my trailer", but also stated that "at no point do I accept any part of myself [driving] in a [dangerous manner], nor would I ever not stop at an accident or help anyone who was hurt". Ground 1 – challenge to pleas 1. It was common ground that the principles relevant to the setting aside on appeal of a conviction based on a plea are stated in Meissner v The Queen. [8] The issue arose in Meissner because the offender had been charged with attempting to pervert the course of justice by offering an inducement to a third person to plead guilty to a charge. In order to determine whether an inducement to plead guilty necessarily supported such a charge, the joint reasons of Brennan, Toohey and McHugh JJ explained: [9] "A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. … If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice." 1. To similar effect, Dawson J stated: [10] "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. … For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud." 1. The applicant's submissions turned upon the proposition that his plea was "not attributable to a genuine consciousness of guilt", a phrase used by Giles JA in Regina v SL. [11] In the course of a brief concurring judgment in R v Murphy, [12] Sholl J stated: "If I thought she was probably innocent, and that she pleaded guilty without reference to any consciousness of guilt, but because of a muddled idea that she would thereby keep the child, I should consider her conviction a miscarriage of justice such as this Court should correct by ordering a retrial. But after a careful examination of the depositions and the exhibits, and a full consideration of her evidence before this Court, I am not satisfied that she did not plead guilty partly if not wholly through a consciousness of guilt." 1. That language is capable of being misunderstood; it does not refer to the need for a subjective belief of the applicant that he was guilty of the offence. By contrast, the joint reasons of Herring CJ and Adam J were expressed in terms consistent with the later judgments in Meissner: [13] "It is not suggested by this ground that the applicant was not perfectly well aware that by pleading guilty she was admitting and intending to admit her guilt of the offences charged. All that can be said is that the advice given to her by her counsel was unduly pessimistic as to the consequences of her standing her trial, and unduly optimistic regarding the sentence upon her pleading guilty. These may provide the motives for the course she took, but that is all. Although in this ground she alleges that she was unduly influenced by her counsel, it is made clear enough from the evidence which we heard from her counsel and indeed from herself, that the decision to plead guilty was her own decision, taken after consultation, it seems, with her husband. The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence perhaps of fraud, duress or the like, which is not suggested, cannot, we think, on any recognised principle afford ground for relief in this Court." 1. In any event, there is no purpose in combing through decisions on particular facts which pre-dated Meissner. It should, however, be noted that, if in 2016 the applicant had sought to withdraw the pleas entered in 2006 his application would have warranted careful scrutiny. As explained by Kirby P in Liberti, "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." [14] 2. A person who, when facing a possible custodial sentence, fails to answer to bail and remains at large for almost a decade before being arrested will not easily be allowed the benefit of facing a trial where prosecution witnesses may no longer be available and where memories will have faded. Had he sought to change his pleas in 2016, no doubt he would have been given firm advice in that regard by counsel then appearing for him. However, as the evidence set out above reveals, there was no suggestion at that stage that he wished to withdraw his pleas; rather, his own evidence was to the contrary. 3. At its highest, the applicant's evidence was that he did not personally believe he had been guilty of dangerous driving. It is not necessary to determine whether the evidence to that effect should be accepted as truthful. The falsification of the log book suggests it would not necessarily be accepted. The other evidence simply does not provide a basis for demonstrating a miscarriage of justice, allowing his convictions to be set aside. There was no evidence that he did not understand the nature of the charge; the fact was that he entered pleas in open court in circumstances where there can be no doubt that he intended to plead guilty; the evidence, as assessed by counsel and solicitors acting for him at various stages, was well capable of supporting a verdict, so that it certainly could not be said that he could not in law have been guilty of the offence. He gave no evidence of any improper inducement, fraud, pressure or threats which led to his entry of the pleas. 4. It follows that there was no substance to the first ground of appeal. It is appropriate to add that the written submissions filed on behalf of the applicant on 5 May 2017 were prepared before the preparation of any evidence to support the grounds. They made no attempt to demonstrate a factual basis for the ground. Ground 2 – incompetence of counsel 1. There are undoubtedly circumstances, as noted above, where a plea may be wrongly entered, thus giving rise to a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act. For example, an incorrect ruling on a question as to the admissibility of evidence by the trial judge, leading to a change of plea from not guilty to guilty may involve a miscarriage of justice. [15] It is possible that a plea based on wrong legal advice may lead to a similar result. However, as in the case of alleged incompetent representation at trial which is said to have led to a miscarriage of justice, an appeal court will be slow to second-guess an advice on plea which involves evaluative judgment and forensic strategy. 2. The notice of appeal alleged that the advice to enter the pleas was "imprudent and inappropriate." The written submissions added the epithet "wrong". 3. In written submissions, counsel for the applicant relied upon two cases to support this ground in principle. In the first, R v McLean, [16] the applicant was successful in an appeal against the severity of a sentence imposed on him in the District Court on one count of conspiracy to import cannabis, for which he was sentenced to 16 years imprisonment with a non-parole period of 11 years. The sentence was set aside, not because the plea of guilty had been wrongly entered, but because the applicant had sought to challenge the quantity of cannabis the subject of the count. There were two importations which were the subject of the count, the first of which had been originally stated to involve 13 tonnes of cannabis, but which had been reduced to 11 tonnes pursuant to an amended statement of facts. The applicant's case was that the amount involved in the first importation did not exceed two tonnes, a matter which he had raised with his counsel but which had not been raised with the prosecution before the sentence was imposed. In upholding the claim that there had been a miscarriage of justice warranting the setting aside of the sentence for that count, Wood CJ at CL [17] applied the principle stated by Gleeson CJ in R v Birks [18] that "flagrant incompetence" of counsel could give rise to a miscarriage of justice. The Chief Judge [19] also referred to a statement by Hunt CJ at CL in Ignjatic: [20] "Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere." 1. In the second case, Wilkes, [21] the applicant had entered a plea of guilty on a count of murder after his brother gave evidence of him striking the deceased. He did so in accordance with advice given by his counsel. However, trial counsel later repented of the advice and the applicant sought leave to withdraw the plea, prior to being sentenced. The refusal of leave to withdraw the plea was upheld by this Court, but the appeal was allowed on a separate ground that the entry of the plea had involved a miscarriage of justice. Wood CJ at CL stated: [22] "In Kouroumalos [23] I also had occasion to consider some of the circumstances in which this Court will go behind a plea of guilty and allow it either to be withdrawn in appropriate circumstances, or to entertain an appeal against conviction where it is too late to withdraw it. Among those circumstances which were identified were those of an accused who is persuaded to enter a plea by reason of the imprudent and inappropriate advice [tendered] by his legal representatives." 1. As to the exchange with counsel, the Chief Judge noted: [24] "It is evident from the terms of the exchange deposed to by counsel that the appellant did not acknowledge his guilt and, if anything, was protesting his innocence. The clear inferences that he was suggesting were that it may well have been his brother John Wilkes and Mr Payne who had been responsible for the killing, that they could be putting their heads together to attribute the blame to him; and/or if he had been involved in the killing, then he did not have any memory of it, due to the effects of the alcohol that he had consumed that day." 1. The reasoning continued: [25] "Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as have been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt." 1. Accepting the principles identified in these cases, the facts outlined above do not remotely establish a miscarriage of justice. At the time the pleas were entered, the applicant was advised of the likelihood that he would be convicted. An experienced public defender, who had had access to the police brief, formed that view. That material is only partly before this Court in the form of the statement of agreed facts. However, there is no basis for concluding that the advice given was wrong, nor that it was imprudent, nor in any other respect "inappropriate". It was not hastily given in the face of adverse evidence at a trial. There is no suggestion that counsel ever reneged on the advice. There is no evidence of improper pressure to accept the advice. 2. So far as the events of 2016 are concerned, there is no evidence that further advice was sought, nor that any particular advice was given as to the strength of the prosecution case. Indeed, it is by no means clear that ground 2 was directed to anything which happened prior to the sentencing in April 2016. The factual basis for ground 2 was totally missing. Conclusions 1. It is not in doubt that a conviction based on a plea of guilty may be set aside on appeal if to allow it to stand would involve a miscarriage of justice, and it may be accepted further that a plea entered on the basis of imprudent and inaccurate legal advice may create a miscarriage, nevertheless the evidence in the present application does not satisfy any standard test for intervention. Accordingly, in the absence of any factual basis for the proposed grounds, the Court refused leave to appeal. 2. McCALLUM J: The reasons stated by Basten JA reflect my reasons for joining in the order made at the hearing. 3. WILSON J: The reasons set out by the Presiding Judge reflect my reasons for joining the order of the Court to refuse leave to appeal. ********** Endnotes 1. Senior affidavit, 1 September 2017, par 6. 2. Senior affidavit, par 11. 3. Senior affidavit, par 12. 4. Kiely affidavit, par 14. 5. Kiely affidavit, par 4. 6. Senior affidavit, par 19. 7. Corcoran affidavit, par 3. 8. (1995) 184 CLR 132; [1995] HCA 41. 9. Meissner at 141-142. 10. Meissner at 157. 11. [2004] NSWCCA 397 at [50]. 12. [1965] VR 187 at 191. 13. Murphy at 189. 14. Liberti (1991) 55 A Crim R 120 at 122 (Kirby P); R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310.at [21]. 15. Reg v Chiron [1980] 1 NSWLR 219. 16. [2001] NSWCCA 58; 121 A Crim R 484 (Wood CJ at CL, Beazley JA and Greg James J agreeing). 17. McLean at [54]. 18. (1990) 19 NSWLR 677 at 685. 19. McLean at [55]. 20. (1993) 68 A Crim R 333 at 336. 21. See fn 14 above. 22. Wilkes at [18]. 23. [2000] NSWCCA 453. 24. Wilkes at [39]. 25. Wilkes at [40]. 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: 11 September 2017