Grant v Local Court of New South Wales and Anor

1. [1]

   JOHNSON J: By Further Amended Summons (constituted by Supplementary Notice filed on 5 February 2015), the Plaintiff, Deborah Grant, seeks to challenge a decision made in the Casino Local Court on 20 August 2014 refusing leave to withdraw a plea of guilty to a charge of common assault contrary to s.61 Crimes Act 1900.

2. [2]

   The Plaintiff seeks leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 or, in the alternative, prerogative relief in the nature of certiorari under s.69 Supreme Court Act 1970. Both avenues are limited to questions of law alone.

3. [3]

   The First Defendant, the Local Court of NSW, filed a submitting appearance in the proceedings. The Second Defendant, the Director of Public Prosecutions (NSW), appeared in the proceedings to contest the claim for relief.

Grounds of Appeal

1. [4]

   The Plaintiff relies on the following grounds of appeal:

Factual Background

1. [5]

   On 7 December 2012, the Plaintiff was convicted in this Court of hinder investigation of a serious indictable offence contrary to s.315(1)(b) Crimes Act 1900. She was sentenced by Bellew J to 12 months’ imprisonment wholly suspended on the condition that she enter into a good behaviour bond pursuant to s.12 Crimes (Sentencing Procedure) Act 1999: R v Grant [2012] NSWSC 1491.

2. [6]

   On 7 October 2013, the Plaintiff was charged with common assault of her ex-partner contrary to s.61 Crimes Act 1900.

3. [7]

   On 23 October 2013, the Plaintiff appeared before the Casino Local Court represented by Ms Claire Hilton who entered a plea of not guilty to the charge. The matter was stood over for hearing on 23 January 2014.

4. [8]

   On 23 January 2014, the Plaintiff, represented by Mr Philip Crick, entered a plea of guilty to the charge and the matter was stood over for sentence.

5. [9]

   In accordance with usual practice, the breach proceedings before Bellew J were to be determined first: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 388 [28].

6. [10]

   On 18 June 2014, the Plaintiff was called up before Bellew J for breach of the s.12 bond. During the course of the Plaintiff's evidence under cross-examination, she provided an account of the incident giving rise to the charge of common assault, which appeared to call into question her plea of guilty. As a result, Bellew J adjourned the hearing to allow the Plaintiff to obtain further legal advice as to the course that she wished to take in relation to the charge before the Local Court.

7. [11]

   On 20 August 2014, the Plaintiff applied unsuccessfully for leave to withdraw her guilty plea before Magistrate Heilpern in the Casino Local Court. It is this decision which is the subject of the present appeal.

The Application for Leave to Withdraw the Plea of Guilty before the Local Court

1. [12]

   Before moving to the grounds of appeal, it is appropriate to set out parts of the reasons of the Magistrate declining to grant the Plaintiff leave to withdraw her plea of guilty. In doing so, it should be kept in mind that the judgment constitutes an ex tempore decision delivered at the conclusion of an interlocutory hearing in the Local Court. Further reference will be made to this aspect in determining the second ground of appeal.

2. [13]

   Placed before the Magistrate on the application to withdraw the plea were an affidavit of the Plaintiff sworn 9 July 2014 and an affidavit of Mr Crick sworn 7 August 2014. No oral evidence was given on the application. The matter proceeded by way of submissions by reference to the documentary material.

3. [14]

   His Honour commenced his decision by noting that the leading authority was the judgment of Howie J in Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; 155 A Crim R 37 (“Wong”).

4. [15]

   Referring to the decision in Wong, the learned Magistrate noted that the onus lay upon the Plaintiff to establish that leave to withdraw the plea should be allowed, and that what must be shown is “a good and substantial reason on the balance of probabilities for varying a plea”. His Honour observed that “such matters ought be dealt with with a caution bordering on circumspection”.

5. [16]

   The learned Magistrate continued (T2.20, 20 August 2014):

6. [17]

   The learned Magistrate then continued (T2.42, 20 August 2014):

7. [18]

   His Honour then proceeded in the following way (T3.13, 20 August 2014):

8. [19]

   His Honour then turned to the stated basis of the application (T3.47, 20 August 2014):

9. [20]

   His Honour referred to the context in which the issue had emerged before the Supreme Court (T4.7, 20 August 2014):

10. [21]

    His Honour then concluded the judgment in the following way (T4.15, 20 August 2014):

Ground 1 - Alleged Failure to Apply Correct Legal Principles

1. [22]

   The basis of the Plaintiff's application before the Local Court to withdraw her plea of guilty was an assertion that she had pleaded guilty to the common assault charge because she feared that if her daughters were called to give evidence to support her case, that she committed the assault in self-defence, they would be in danger of harm at the hands of her ex-partner.

2. [23]

   Mr Bruce SC, for the Plaintiff, submits that the Magistrate applied a "strict interpretation" of Wong at 46 [37] to resolve the Plaintiff's application, without having regard to the general principles of law on the issue referred to in the preceding paragraphs of that judgment.

3. [24]

   Howie J said in Wong at 46 [37]:

4. [25]

   The Plaintiff submits that this was not the issue that the Magistrate had to decide. The issue at hand was, on the Plaintiff's submission, whether the plea of guilty "was not really attributable to a genuine consciousness of guilt" on the basis that it was overborne by a concern for her daughters.

5. [26]

   The Plaintiff submits that on the day she changed her plea to guilty, she was not given appropriate advice from her legal representative, Mr Crick, as to the calling of her daughters to support her claim that she was acting in self-defence, as he made no enquiries of the Plaintiff as to what her defence was.

6. [27]

   The Plaintiff further submits that the affidavits of the Plaintiff and Mr Crick, which were before the Local Court, differed on substantive issues and that his Honour made no definitive findings on the credibility of either the Plaintiff or Mr Crick.

7. [28]

   The Plaintiff submits that there was no evidence before his Honour which contradicted the Plaintiff's affidavit evidence as to her pleading not guilty before the Local Court, and that her daughters were witnesses to the incident. The Plaintiff submits that this evidence was confirmed to a great extent in evidence given on oath before Bellew J in the Supreme Court.

8. [29]

   The Plaintiff takes issue with parts of the Magistrate's remarks, including his Honour's finding that "she did not raise self-defence at any time with her previous legal representative, she did not raise self-defence in her evidence-in-chief before the Supreme Court and the issue with her daughters no longer seems to be playing on her mind" (see [21] above).

9. [30]

   In relation to these remarks, Mr Bruce SC submits that:

10. [31]

    Ms Davidson, counsel for the Second Defendant, submits that the Magistrate's approach to the application was in fact entirely consistent with the general principles governing an application for leave to withdraw a plea of guilty.

11. [32]

    Counsel submits that the Magistrate:

12. [33]

    Ms Davidson submits that the Magistrate's reference to the issue of free choice being the "real test", which the Plaintiff takes issue with, indicates that his Honour was appropriately concerned with the two matters raised by the Plaintiff which could potentially affect the integrity of her plea. That is, the issue of self-defence and the Plaintiff's alleged concern for the safety of her children. Counsel submits that the Magistrate's ultimate concern was, correctly, whether a "good and substantial reason" to allow the Plaintiff to withdraw her plea had been made out.

13. [34]

    In relation to the alleged deficiency of the legal advice provided by Mr Crick, the Second Defendant submits that the totality of the evidence before Magistrate Heilpern on that issue did not raise doubt as to the integrity of the plea.

14. [35]

    In relation to the Plaintiff's submission that she entered the guilty plea out of fear for her daughters' safety, the Second Defendant submits that his Honour did not err in his application of principle. Counsel submitted that it was open to the Local Court to take the view that the evidence did not establish that the Plaintiff held such fear for her daughters' safety as to induce her guilty plea and so as to provide a "good and substantial reason" to allow the plea to be withdrawn.

15. [36]

    The principles governing an application to withdraw a plea of guilty are well settled. In R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20, I summarised those principles as follows at 27-28 [41]-[48]:

16. [37]

    It is for the Plaintiff to demonstrate error of law before either of the forms of relief sought may be granted in this case. This Court is not undertaking a rehearing of the application for leave to withdraw the plea of guilty.

17. [38]

    Ground 1 asserts that the Magistrate applied the wrong principles of law in considering the Plaintiff’s application. I am not persuaded that this is so. His Honour had a clear understanding of the relevant principles with the judgment to Howie J in Wong being of assistance in this case.

18. [39]

    The Plaintiff’s complaint that his Honour erred in the findings challenged at [30] above, does not rise above a claim of factual error. It does not constitute error of law. In any event, his Honour’s focus was upon the circumstances surrounding the entry of the plea of guilty on 23 January 2014. The Plaintiff appreciated what was involved in her plea of guilty. Further, as the Magistrate noted (at [18] above), the Plaintiff conceded on oath that she had hit the Complainant other than in self-defence.

19. [40]

    It was open in law to his Honour to conclude that the Plaintiff had failed to demonstrate good and substantial reasons to allow the plea of guilty to be withdrawn.

20. [41]

    No error of law has been demonstrated in this respect and the first ground of appeal should be rejected.

Ground 2 - Alleged Failure to Give Reasons

1. [42]

   The Plaintiff submits that the Magistrate's reasons for refusing the application for leave to withdraw her guilty plea failed to address the case put forward in the application and, as a result, were inadequate.

2. [43]

   Particular emphasis was placed on the decision in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 (“Elskaf”) in support of the proposition that Magistrates have an obligation to provide adequate reasons for their findings as part of their judicial function.

3. [44]

   The Plaintiff drew the Court's attention to the following statement of Garling J in Elskaf at [58]:

4. [45]

   Ms Davidson submitted that his Honour's reasons for refusing the Plaintiff's applications are not lacking in clarity or sufficiency to warrant interference by this Court.

5. [46]

   The Second Defendant points to the fact that his Honour's remarks constituted an ex tempore decision on an interlocutory matter in a Local Court. This Court was directed to a number of authorities for the proposition that appropriate allowance should be made for the pressures to which Local Court Magistrates are subject (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402; Acuthan v Coates (1986) 6 NSWLR 472; L v Lyons [2002] NSWSC 1199; 56 NSWLR 600).

6. [47]

   In any event, the Second Defendant submits that the Magistrate's reasons were sufficient:

7. [48]

   A failure to give reasons as required by law may itself constitute error of law. In Moloney v Collins [2011] NSWSC 628, I said at [63]-[65] (in the context of a civil hearing in the Local Court):

8. [49]

   An application to permit a person to withdraw a plea of guilty is interlocutory in nature: Wong at 39-40 [10].

9. [50]

   A Magistrate would be entitled to refuse to entertain a further application for an interlocutory order such as this that had already been determined by the Court, unless there was significant new material justifying the Court exercising its discretion afresh on the basis that, without new material, the further application would be fruitless: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440-441; Wong at 39-40 [10]; Director of Public Prosecutions (NSW) v Scheibel [2004] NSWCA 187; 145 A Crim R 576 at 584-585 [51]-[57].

10. [51]

    The decision of the Magistrate in this case involved an ex tempore judgment delivered immediately after the interlocutory hearing at the Casino Local Court. No doubt, the application was one of many matters listed before the Court on that day. Some allowance must be made for ex tempore reasons delivered on an interlocutory issue: Re Don [2006] NSWSC 1125 at [39].

11. [52]

    In considering appeals on sentence where remarks on sentence were delivered ex tempore immediately following the sentencing hearing, the Court of Criminal Appeal has stressed the need for a practical approach to be taken. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175, the Court said at 180-181 [34]-[35]:

12. [53]

    In R v Hamieh [2010] NSWCCA 189, the Court said at [32]:

13. [54]

    It is important to keep statements of this type in mind, in particular when considering submissions that the Magistrate in this case erred in law in failing to give reasons as required by law.

14. [55]

    It is not the duty of a Judge or Magistrate to decide every matter which is raised in argument. The decision of a particular submission may be an essential part of the reasoning towards the Magistrate’s final conclusion. It is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 385-386.

15. [56]

    In my view, reading fairly the entirety of the Magistrate’s reasons, the issues falling for consideration were addressed by his Honour. In particular, I accept the submission of the Second Defendant referred to at [47] above. It has not been demonstrated that the Local Court failed to give reasons as required by law.

16. [57]

    Once again, it is necessary to keep in mind that this is not a rehearing of the application for leave to withdraw the plea of guilty. That application was considered by the Magistrate at Casino Local Court and determined in the manner outlined in this judgment. No error of law has been demonstrated in that respect.

17. [58]

    The Plaintiff has not made good the second ground of appeal.

Conclusion

1. [59]

   The Plaintiff has failed to demonstrate error of law on the part of the Magistrate. Accordingly, the foundation for relief, in each of the alternative ways sought by the Plaintiff, has not been established.

2. [60]

   At the hearing, the Court was informed that the parties had agreed that there should be no order as to costs, whatever the outcome of the proceedings.

3. [61]

   I make the following orders: