Reintroducing evidence after a plea of guilty

Izzo [2001] WACIC 4

Background

The victim applied for compensation in respect to incidents that occurred on three different dates:

1. Offence that occurred on 6 January 2018
2. Offence that occurred on 7 January 2018
3. Alleged offence which   occurred   on   6 December   2017 (incidents)

The victim and the offender had known each other for a period of about 8 years and had been involved in a sexual relationship.

The victim had terminated the relationship, but the offender had repeatedly contacted and communicated with the victim by way of telephone calls, social media, and text messaging. He threatened to harm and injure the victim, her family, and her friends if she did not continue the relationship. The offender refused to accept that the relationship had been terminated.

On 6 January 2018, the offender met with the victim in Ellenbrook, and he told her that he had a gun. He opened the boot of his car and showed her what she believed to be the handle of a rifle.

On the 7^th of January 2018, the offender drove to the victim’s home and had in his possession a folding pocketknife. He knocked repeatedly on the rear garage, front door, and window shutters, she refused to let him inside telling him she was scared. The offender, in anger, punched the window security shutters near the front door causing them to be dented. He threatened to jump the rear fence and force his way into the house.

Police were called and arrested the offender and found the pocketknife nearby.

The offender pled guilty to:

1. threats to endanger or harm any person and pursues another to intimidate;
2. stalking in a manner reasonably expected to intimidate and does intimidate;
3. threats to injure, endanger or harm any person; and
4. being in possession of an article with intent to cause fear that someone will be injured or disabled

The above was contained in, and the offender pled guilty to, a Statement of Material Facts (SMF). This is a prosecution document that is issued to an accused at the time of being charged with an offence.

On 6 December 2017, the offender came to the home of the victim whilst drunk. He then threatened to kill the victim, a third party and then turn the gun on himself. He refused to leave the home of the victim and told her that he would organise for her to be tortured by having 20 men rape and then kill her.

Order

The victim was compensated by way of the following orders:

1. $47,420 made up of damages as follows:

• $20,000 for psychological injuries;
• $20,000 to loss of earning capacity;
• $5,000.00 to future treatment; and
• $2,740 to medical reports.

2. The sum of $47,420 was apportioned as follows:

• $31,614 to the proved offences
• $15,806 to the alleged offences

3. pursuant to section 45(1)(b) of the Act limited recovery from the offender to the sum of $30,000 under Part 6 of the Act.

It was presumably order 3 that caused the offender to request reasons from the Assessor.

Discussion

The important aspect of the case was that the offender had made submissions to the Assessor following a notice issued by the Assessor pursuant to section 19 of the Act, advising him of the applicant’s application in relation to the proved offences and inviting submissions.

The offender provided submissions that included his version of the incidents. These were predictably exculpatory, and the question was whether the Assessor could take notice of these.

The short answer was “no” because they went beyond the facts contained in the SMF to which the offender pled guilty. The Assessor stated that she was bound by Underwood v Underwood [2018] WADC 13 [53 to 63] and held that “Where the facts set out in the SMF and the offender’s submissions differed, I must accept the facts as pleaded in the SMF. Accordingly, despite the detail provided in the offender’s submissions, I placed no weight on the offender’s version of events as contained in those submissions.”

The Underwood decision has complexities of its own and draws upon the decision of Bennett v The State of Western Australia [2012] WASCA 70. Both cases dealt exclusively with the issue of whether the offender can introduce evidence beyond the material facts to which the offender pled guilty. Neither was a case in which the victim sought to introduce such evidence. Strangely, the Court in the Underwood matter then went into this latter issue and said that as a matter of procedural fairness the victim could not go beyond the material facts to which the offender pled guilty. This is a somewhat unusual position to adopt since the victim is not party to such a guilty plea. It is a fundamental rule of procedural fairness that both parties be heard.

However, the Court in the Underwood case enunciated seven principles guiding the admission of evidence beyond those contained in the guilty plea. These can be summarised as follows:

1. the offender cannot re-litigate the facts which led to the proved offence
2. a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence
3. a plea of guilty necessarily means that all relevant defences have been conceded as not applying
4. a claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence
5. where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the only reliable guide to that issue will usually be the facts admitted for the purposes of sentence
6. a plea of guilty does not constitute an admission of all the facts stated in the State’s witness statements, or otherwise contained in the brief (nor visa versa)
7. both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.