James Karoly v Ak Brown & David Noel Wilson Sca [1988] ACTSC 28 (23 May 1988)

SUPREME COURT OF THE ACT

JAMES KAROLY v A.K. BROWN & DAVID NOEL WILSON
S.C.A. Nos. 56,60-62 of 1987
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Appeal - two convictions for common assault - one conviction for contravention of domestic violence protection order - one conviction for wilful damage - appellant unrepresented by counsel when as defendant in Magistrates Court pleaded guilty.

Appeal - assault charges indictable but triable summarily - defendant's consent needed before charge dealt with summarily - consent not obtained - similar situation regarding charage of wilful damage under s.90 of Tele- communications Act - consent also not obtained.

Appeal - conviction and sentence for contravention of domestic violence protection order - offence punishable on summary conviction - whether Magistrate should have rejected plea of guilty.

Crimes Act 1900 (N.S.W) s.476

Paul Raymond Grevell (1982) 6 ACrimR 78 (Court of Criminal

Appeal, Queensland)

Baker v. Thorpe (1985) 62 ACTR 1

Naumce Petreski v. Peter Jesse Cargill (unreported, Full Court of the Federal Court of Australia, 9 December 1987)

Laurence Lamond Cooper (1984) 12 ACrimR 127

Cooling v. Steel (1971) 2 SASR 249 at p.250

R v. Murphy 1965 VR 187 (Supreme Court of Victoria, Full Court)

HEARING

CANBERRA
23:5:1988

ORDER

The appeals against the two convictions under s.61 of the Crimes Act 1900 (N.S.W.) and the conviction under s.90 of the Telecommunications Act 1975 be allowed, the conviction in each case be quashed and the information in each case be dismissed.

The appeal against the conviction under s.27 of the Domestic Violence Order 1986 be dismissed and the conviction confirmed. The matter be remitted to the Magistrates Court for sentence.

The respondent pay the appellant's costs of the successful appeals against conviction.

There be no order as to the appellant's costs in respect of the unsuccessful appeal against conviction.

DECISION

These are appeals heard together by consent against
convictions in the Canberra Magistrates Court on 11 August 1987. The appellant was sentenced to a term of 18 months imprisonment on a charge of common assault under s.61 of the Crimes Act 1900 (N.S.W.). The conduct that gave rise to that charge occurred on 8 October 1986. He was sentenced on a further charge of common assault to a term of 18 months imprisonment cumulative on the first sentence. He was sentenced to a term of four months imprisonment, concurrent with the other sentences of imprisonment, on a charge of contravening a protection order under s.27 of the Domestic Violence Ordinance 1986. He was further convicted on a charge of wilful damage under s.90 of the Telecommunications Act 1975, no penalty being imposed but the appellant being ordered to pay compensation of $35 over a period of two years. The conduct giving rise to the three latter charges occurred on 29 July 1987.

2. To each of the charges the appellant pleaded or purported to plead guilty before the Magistrate. At the time of the plea he was unrepresented by counsel, although he had had legal representation and advice up until the day before.

3. Each of the charges under s.61 of the Crimes Act was indictable but triable summarily under s.477 of the Act. However, s.477(6)(c) requires the consent of the defendant before the charge may be disposed of summarily. It is conceded by the respondent prosecution that consent was not obtained from the appellant who was the defendant before the Magistrates Court. Such consent must be obtained before the Magistrates Court has jurisdiction to hear and determine the charges summarily. Accordingly the appeals against conviction on the charges under s.61 of the Crimes Act must succeed, and the informations will be dismissed.

4. As to the charge under s.90 of the Telecommunications Act 1975, a similar situation exists. Under s.102(2) of that Act, a court of summary jurisdiction may hear and determine an offence punishable by imprisonment for a period exceeding six months under the Act if the court is satisfied that it is appropriate to do so and the defendant and the prosecutor consent. Again it is common ground that the consent neither of the defendant nor of the prosecutor was obtained before the Magistrate determined the proceedings in respect of the charge under s.90 of the Act and accordingly the Magistrate lacked jurisdiction to proceed summarily. That conviction also will be quashed and the information dismissed.

5. That leaves the conviction and sentence under s.27 of the Domestic Violence Ordinance 1986. The maximum penalty provided for is a fine of $500 or a term of imprisonment for six months or both. There is no question that that was an offence punishable on summary conviction: Crimes Act 1900 (N.S.W.) s.476.

6. The main question raised in the appeal is that the Magistrate should not have proceeded to conviction on the plea of guilty or, put another way, should have rejected the plea of guilty. An ancillary submission was that before requiring the appellant to plead guilty or not guilty to the charge, the Magistrate should have taken a number of preliminary steps.

7. Reference was made to cases in a number of other places where a plea of guilty has been set aside on an appeal from a conviction. For instance, a court of criminal appeal will set aside a plea of guilty where it is satisfied that there has been a miscarriage of justice, but when it does so it does not sit to determine the question of guilt or innocence: Paul Raymond Grevell (1982) 6 ACrimR 78 (Court of Criminal Appeal, Queensland).

8. In any event, this is not a court of criminal appeal. The nature of an appeal to the Supreme Court from a Magistrates Court is governed by the provisions of the Magistrates Court Ordinance 1930 and is by now well settled: see Baker v. Thorpe (1985) 62 ACTR 1, Naumce Petreski v. Peter Jesse Cargill (unreported, Full Court of the Federal Court of Australia, 9 December 1987). The appeal is in the nature of a re-hearing and the Supreme Court shall, pursuant to s.214(2) of the Magistrates Court Ordinance 1930, have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact. This may mean that when a plea of guilty is challenged on appeal from a conviction, the Supreme Court should endeavour to place itself in the same position in which the Magistrate would have been if there had been an application to withdraw the plea before conviction. In the circumstances of the present appeal I do not think it is necessary to decide this precise point.

9. There is authority to support the proposition that a court hearing an appeal from a Magistrates Court has the power to set aside a plea of guilty. The cases were surveyed by Muirhead J. in the Northern Territory Supreme Court sitting on an appeal against a conviction by a magistrate in Laurence Lamond Cooper (1984) 12 ACrimR 127. In the event his Honour concluded that the facts were such that the plea should not be set aside for the reason that his Honour was not convinced that the conviction was wrong. In his judgment his Honour remarked that a plea of guilty might be disregarded on an appeal against conviction in certain cases including those where the appellate court is not satisfied that an unrepresented defendant had sufficient understanding of the issues involved or the jeopardy he was in to properly consider or understand the consequences of a plea of guilty. His Honour referred with approval to a lengthy passage from the judgment of Wells J. in Cooling v. Steel (1971) 2 SASR 249 at p 250 in which a number of preliminary steps were suggested before an unrepresented defendant was to be convicted on a plea of guilty.

10. However, as the nature of the appeal depends upon the local statutory provisions, judicial decisions elsewhere may or may not be of much assistance, depending upon the similarity or otherwise of the legislation. In any event, the power to set aside a conviction after a plea of guilty is, as a matter of principle, to be exercised sparingly: R v. Murphy 1965 VR 187 (Supreme Court of Victoria, Full Court).

11. At the hearing of the appeal before me, the appellant was permitted, by consent and pursuant to s.214(3) and (4) of the Magistrates Court Ordinance, to rely on an affidavit sworn by him on 17 May 1988 which set out a number of facts not put before the Magistrate. Some of the facts relate to the three charges which I have already indicated must be dismissed. In relation to the charge under s.27 of the Domestic Violence Ordinance 1986, the appellant says that he decided to plead guilty because he did not want the victim to get into trouble with the police and so that she would not have to give evidence, evidence which he claims she told him would have been exculpatory and would have been to the effect that she had made false allegations of assault against him. He also says in his affidavit that he was confused when he pleaded guilty, that he had trouble following the proceedings and then when he heard the facts alleged in the Magistrates Court he thought it was too late to change his plea to a plea of not guilty. It was also submitted on behalf of the appellant in the appeal that the inference should be drawn from the appellant's affidavit, although he did not expressly say so, that he did not realise the seriousness of the allegations against him when he pleaded guilty, nor was he aware of the possible penalties. He said that on the day before his appearance in the Magistrates Court he told his solicitor that he wished to plead guilty to all charges, although he had not committed any of the offences. When confronted with those instructions the solicitor, not without justification, explained that she would be unable to act for the appellant on such a basis and withdrew from the case.

12. I have approached the affidavit of the appellant with considerable scepticism, particularly since the victim was not called to support him. On the other hand, there was no application on the part of the respondent prosecution to call the victim in order to contradict him. I think that for the purposes of the appeal, I have to accept what he says in the affidavit at its face value.

13. But this does not necessarily mean that the appeal must succeed. There is much to be said for the view that any court should follow the procedures advocated by Wells J. and Muirhead J. before convicting an unrepresented person on a plea of guilty. That is not to say, however, that a court which does not follow those procedures has fallen into error.

14. Moreover, on the appellant's own account set out in his affidavit, he is guilty of a breach of the order under the Domestic Violence Ordinance 1986. The terms of that order were as follows:

"The Court orders that for the period of 12
months:

1. the respondent not engage in the following
conduct:

(a) Assaulting the applicant within the
meaning of Section 61 of the Crimes Act
1900.

2. The respondent comply with the following
prohibitations (sic.) and conditions:

Subject to the conditions (if any) specified
in Part B of this Order the respondent is
prohibited for a period of 12 months from
being on premises on which the spouse of the
respondent resides, namely, at 10 Cassina
Street, O'Connor, ACT.

3. The respondent is prohibited for a period of
12 months from being on the following
premises, namely 2 Brigalow Street, O'Connor,
ACT being premises frequented by the spouse
of the respondent.

4. The respondent is prohibited for a period of
12 months from approaching within the
distance of 100 metres of the spouse of the
respondent.

5. The respondent is prohibited from contact-
ing, harassing, threatening or intimidating
or from causing another person to contact,
harass, threaten or intimidate the spouse of
the respondent."

15. According to the appellant's own account in his affidavit, he was in breach of the prohibition against being on premises in which his wife resided and in further breach of the prohibition against approaching within a distance of 100 metres of his wife. He denied that he was guilty of assaulting her.

16. It is trite law that a defendant who pleads guilty to a charge contained in an information or an indictment is taken to admit each of the essential ingredients of the charge but not necessarily to all of the facts as may be alleged by the prosecution. It is by no means uncommon for a defendant who has pleaded guilty to go on to challenge facts alleged by the prosecution and for those facts to be determined by the court as part of the sentencing process. Had the Magistrate been appraised on the material in the defendant's affidavit that is the course which he should have adopted. The defendant admits he was in breach of the domestic violence order by being at the victim's home but he denies that he assaulted her. If the defendant had raised that issue before the Magistrate, he would of course not have been entitled to be found not guilty, but it is at least possible that a sentence less severe than four months imprisonment would have been imposed.

17. It was submitted on behalf of the appellant that as he was charged with the assault of the victim on 29 July 1987 he could not be convicted of a further offence which had as one of its elements that same assault. The submission raises the principle against double jeopardy, that is to say that a person cannot be convicted twice for one offence. Technically that principle is put in issue during the course of a criminal trial by the plea of autrefois convict. However, the principle cannot apply without a conviction. The conviction for assault on 27 July 1987 cannot stand for reasons to which I have made reference. Nor is the principle of autrefois acquit applicable, because the accused has not been acquitted on the charge of assault. The conviction on that charge is to be regarded simply as a nullity on the ground of lack of jurisdiction.

18. The court is then left with the unsatisfactory situation where the plea of guilty and the conviction for breach of the domestic violence order remain, but there is an unresolved issue as to the facts upon which the sentence for breach of the domestic violence order should be based. In this situation I think that it is not appropriate for this Court to try to determine the facts and that the Court should exercise the power to take the unusual course of remitting the matter to the Magistrates Court to determine the facts appropriate for sentencing and then to sentence the appellant according to law.

19. The appeals against the two convictions under s.61 of the Crimes Act 1900 (N.S.W.) and the conviction under s.90 of the Telecommunications Act 1975 are allowed, the conviction in each case is quashed and the information in each case dismissed. The appeal against the conviction under s.27 of the Domestic Violence Order 1986 is dismissed and the conviction confirmed. The matter is remitted to the Magistrates Court for sentence.

20. Unless the parties wish to be heard I propose to order the respondent to pay the appellant's costs of the successful appeals against conviction and to make no order as to the appellant's costs in respect of the unsuccessful appeal against conviction.