Director of Public Prosecutions v Black

[2021] VCC 247

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01550

JOHN BLACK	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2020 & 12 February 2021
DATE OF RULING:	12 March 2021
CASE MAY BE CITED AS:	DPP v Black
MEDIUM NEUTRAL CITATION:	[2021] VCC 247

CHANGE OF PLEA APPLICATION
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Subject:  Criminal law
Catchwords:   Change of plea
Legislation Cited:       Drugs Poisons & Controlled Substances Act 1981 s 72A
Cases Cited:  R v Bui [2005] VSA 300; R v Nguyen; DPP reference
(No 1 of 2004) Vic (2005) VR 299; Weston v The Queen
  [2015] VSCA 354; DPP v Karoumi [2016] VCC 2106;
  R v Garlick (No 2) (2007) 15 VR 388; R v McKittrick
  [2008] VSCA 69; DPP Reference (No 1 of 2004) (Vic)
(2005) 12 VR 299

Ruling:  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. Terry	James Dowsley & Associates
For the Respondent	Mr J. Goetz	Office of Public Prosecutions

HIS HONOUR:

Introduction

1This is an application for change of plea by the applicant, John Black, in relation to a charge of cultivating a commercial quantity of cannabis.  On 27 February 2020 Mr Black was arraigned on Indictment Number K10752263 and entered a plea of guilty to a single charge of cultivating a narcotic plant (commercial quantity) contrary to s 72A of the Drugs, Poisons and Controlled Substance Act 1981.  He now seeks to change his plea to one of not guilty.

2Mr Black was legally represented at the time of the arraignment, but he appeared without representation on the date initially listed for his plea hearing, being 14 September 2020.  The matter was adjourned to 20 November 2020.  On that date orders were made adjourning the present application to 12 February 2021, and directing Mr Black to file and serve any affidavit material on which he intended to rely on or before 18 December 2020.

The evidence

3Mr Black affirmed an affidavit on 15 December 2020 which was tendered during the application.[1]  The substance of this affidavit was as follows:

·Prior to contacting his present solicitors Mr Black had been represented by another solicitor, Mr Brian Cash. 

·Mr Cash appeared on his behalf during the arraignment on 27 February 2020 where the plea of guilty was entered and the matter adjourned for a plea hearing.  That hearing was subsequently adjourned.

·He initially contacted Mr Ben Handley at his current solicitors on 14 September 2020 to seek further legal advice.  The plea hearing was further adjourned to enable Mr Black to seek new legal representation and further advice.

·On 6 November 2020 Mr Black instructed his solicitors that he did not intend to cultivate a commercial quantity of cannabis and wished to change his plea.

·On 17 November 2020 Mr Black conferred with Mr Terry, his present counsel, and again instructed counsel that he wished to change his plea and proceed with the present application.

·On 20 November 2020 Mr Terry appeared on behalf of Mr Black before this court and the change of plea application was adjourned to 12 February 2021.

[1]        Exhibit A

4Mr Black’s affidavit set out the following matters in support of his application:

“I sought new legal representation and further advice because I felt Mr Cash failed to provide me with adequate legal advice and he would not follow my instructions.

Mr Cash never explained to me the elements of the offences which the prosecution had to prove beyond reasonable doubt.

Despite asking on many occasions, Mr Cash never explained to me what amounts to a ‘commercial quantity’.  Mr Cash would always respond with ‘I will find out for you,’ but never would answer the question. I was often kept in the dark like this and was not periodically informed or updated what was happening with my matter.  I was repeatedly told by Mr Cash to ‘leave it with me, I am working on it.’

Most importantly, Mr Cash failed to convey to me the consequences of pleading guilty – that is, that a mandatory term of imprisonment would result from a plea of guilty.

On the day of the arraignment, 27th February 2020, I was not prepared to enter a plea of guilty and I did not understand the meaning of the arraignment fully.

Mr Cash had not discussed with me the purpose of the Court listing and I was of the belief that the matter would be adjourned as it had been done on the previous occasions.

Whilst in the Court room and immediately before the arraignment, Mr Cash instructed to me ‘Just plead guilty.  Trust me.  I’ll get you out of this.  You can change it whenever you want.’

I responded to Mr Cash that ‘I do not want to plead guilty.  I am not guilty of the commercial one.’  To which, Mr Cash responded and instructed ‘Just do it.’

I felt pressured and coerced into it, purely to speed up the process.  As a result I eventually mumbled to the court that I plead guilty.

My plea was not offered freely at the arraignment on 27th February 2020.”[2]

[2]        Exhibit A at paras [8] to [17]

5Mr Black was briefly cross-examined at the hearing on 12 February 2021.  He agreed that he had met his former solicitor, Mr Cash, approximately two years ago and further agreed that he had initially faced four charges that were then reduced to two.  He had not read any affidavit material provided in opposition to his application.[3]

[3]        See Exhibit 1, affidavit of Caitlin Elizabeth Howard sworn 1 February 2021

6When cross-examined about his concerns about the commercial quantity of plants, he was taken to his record of interview taken on the day of his arrest on 2 March 2019, but did not recall questions concerning the weight of the cannabis plants rather than the number.[4]

[4]        Record of Interview 2 March 2019, question 113

7Mr Black maintained in cross-examination that Mr Cash had given him no real legal advice and he was unhappy with him.  He denied being informed of the matters set out in the prosecution opening stating that the weight of the cannabis cultivated by him was 103.8 kilograms.

8There was no affidavit filed in support of Mr Black by his former solicitor Mr Cash, nor any other evidence tendered on his behalf, save for the transcript of directions hearings, including 27 February 2020.

The Applicant’s argument

9Mr Terry, who appeared on behalf of Mr Black submitted that the application to change the plea should be granted as Mr Black was not adequately advised by his former solicitor, nor did he have an awareness of the elements necessary to establish his guilt of the relevant charge.  In particular he disputed any intention to cultivate the cannabis in a commercial quantity.  Mr Terry further submitted that it would not have been sufficient for the prosecution to prove what Mr Black should have known, rather proof of the intention to cultivate a commercial quantity is required.[5]

[5]        R v Bui [2005] VSA 300; R v Nguyen; DPP reference (No 1 of 2004) Vic (2005) VR 299

10Mr Terry further submitted that there exists “an issuable question” of Mr Black’s guilt, therefore the plea of guilty entered by him did not represent a genuine admission of all elements of the change as the applicant was unaware at the time he entered the plea as to what the elements of the charge were.

11Further, given his lack of knowledge as to the elements, the applicant could not be said to have intended to admit that he was guilty of a charge of cultivation of a commercial quantity of a narcotic plant.

12Finally, Mr Terry submitted that the evidence of Mr Black on affidavit and in cross-examination demonstrated some degree of pressure exerted upon him by his previous legal representative immediately prior to the arraignment which had the effect of improperly inducing him to enter a plea of guilty.  In those circumstances the plea was not offered with a consciousness of guilt.

The Respondent’s argument

13Mr Goetz, who appeared on behalf of the Director of Public Prosecutions opposed the change of plea application.  He referred me to the authorities of Weston v The Queen[6] and DPP v Karoumi.[7]  On the basis of those authorities Mr Geotz submitted the application must fail.

[6] [2015] VSCA 354

[7] [2016] VCC 2106

14Mr Goetz tendered into evidence the affidavit of Caitlin Elizabeth Howard sworn 1 February 2021.[8]  Ms Howard’s detailed affidavit set out the details of the correspondence, both by email and in telephone conversations with Mr Black’s former solicitor Mr Cash on numerous occasions between July 2019 and early September 2020.  Her affidavit makes reference to the arraignment on 27 February 2020 as follows:

“On 27 February 2020 the matter was heard for a mention before the Honourable Judge Doyle and the Accused was arraigned.  The matter was adjourned to 31 March 2020 for a plea hearing.  Prior to the matter being called, John Goetz (counsel for the prosecution) and myself had a conference with Mr Cash in the County Court.  Mr Goetz explained both the provisions of the Sentencing Act 1991 and the Drugs, Poisons and Controlled Substances Act 1981 and reiterated that the term of imprisonment was the only option available to the Court.

On 28 February 2020 I spoke with Mr Cash via telephone.  He advised that he may wish to question the botanist attached to the matter, further suggesting that the plea may be contested.  When probed further, Mr Cash identified that the reason he wished to cross-examine the botanist was so that he could determine the street value of the crops.”[9]

[8]        Exhibit 1

[9]        Exhibit 1, paras [20] to [21]

15The substance of the material to which I have referred from Ms Howard’s affidavit is supported by a letter exhibited to her affidavit and sent to Mr Cash on 2 March 2020.[10]  That letter also exhibits the transcript of the hearing before His Honour Judge Doyle on 27 February 2020 when the plea of guilty was entered.[11]

[10]        Exhibit CEH-3 to Exhibit 1

[11]        Exhibit B

The legal principles

16The Court of Appeal in Weston set out a number of principles relevant to applications of this nature:

“1.  The basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.

2. The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made.  Its significance rest in part upon the high public interest in the finality of legal proceedings.

3.  To permit the withdrawal of a plea of guilty before conviction or the overturing of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the applicant were to be held to his plea.

4.  The applicant seeking to question the integrity of the plea, whether before or after conviction bears the onus of establishing such miscarriage.

5.  To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea.  Some or more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.

6.  It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise.  The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.

7.  A claim whether before or after conviction that the circumstances exist which affect the integrity of the plea process must be approached with caution.

17The Court of Appeal in Weston stated further principles concerning the integrity of a plea challenged before conviction and sentence:

8.  Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar.  Where the applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding the circumstance established that affects the integrity of the plea.

9.  Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant established that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.”[12]

[12]        Weston v  The Queen [2015] VSCA 354 at [109]

Analysis

18From the principles enunciated in Weston and applied in  Karoumi I must only grant leave to change the plea previously entered to one of not guilty if the applicant establishes that there has been a miscarriage of justice which amounts to an “issuable question of guilt” and the existence of some circumstance which affects the integrity of the plea so that it would be unjust to hold Mr Black to his plea of guilty.

19

The single charge to which Mr Black has pleaded guilty requires proof beyond reasonable doubt of three elements:

 

i)    That he intentionally cultivated a plant;

 

ii)   That the plant he cultivated was a narcotic plant, Cannabis L;

 

iii)  That he intentionally cultivated not less than a commercial quantity of that

      

plant, being in this case a relevant weight in excess of 25 kilograms.

20There seems to be little issue in relation to the first two elements of the charge to which Mr Black has entered plea of guilty.  The question of intention is said to cast doubt upon the plea of guilty and raise “an issuable question of guilt”.  Mr Black maintains in his affidavit that he was never informed of the elements required to be proved by the prosecution and challenged the issue of whether he had cultivated a commercial quantity of cannabis. 

21The transcript from the directions hearing held on 27 February 2020 before Mr Black was arraigned sets out in my view a quite extraordinary exchange between Mr Cash and the court.  Quite properly the court wished to know whether Mr Black was going to plead guilty to the charge of cultivation of a commercial quantity of cannabis or not.  To this direct question Mr Cash replies, “I’m happy to be arraigned today but I would be – I want to pre-warn the court that I may have to make an application on another day.”[13]  This follows a lengthy discussion in which Mr Cash queried with His Honour the basis on which Mr Black was being charged with the commercial quantity offence:

[13]        Exhibit B, Transcript (“T”) 4, Line (“L”) 4-6

“MR CASH:Mr Black is charged with cultivating 21 cannabis plants.

HIS HONOUR:  It’s a commercial quantity, is that right?

MR GOETZ:It is, Your Honour.

MR CASH:I’m staggered by that, Your Honour.  It may be the interesting thing out of that, I might say, but those 21 plants wet weighed 95 kilos.

HIS HONOUR:  Right.

MR CASH:So six plants would weigh 25 kilos so if I have six plants I can be charged with having a commercial quantity of cannabis?

HIS HONOUR:  Yes, it gets you to the weight on that analysis.

MR CASH:With a maximum penalty of 25 years.  I must say, I will be looking over – and I’ve got someone checking this out, looking – this will only encourage my friend to take possibly a certain attitude ultimately, or the DPP I don’t know.”[14]

[14]        Exhibit B, T 2, L 20 to T 3, L 5

22I am satisfied that on 27 February 2020, the date of the plea of guilty being entered, there was as a matter or probability an absence of accurate legal advice given to the applicant as to the elements of the offence.  Exhibit B demonstrates significant confusion in the mind of Mr Black’s then solicitor as to what constituted a commercial quantity.  I accept Mr Black’s evidence on that issue.

23Ultimately the determining issue in this application is whether the applicant has demonstrated that there is an issuable question of guilt.  Mr Terry referred me to R v Bui[15] and R v Nguyen[16] as authority that proof of intention is required.  He further referred to R v Garlick (No 2)[17] and R v McKittrick[18] in support of the proposition that such intention must be to cultivate at least the specified quantity of or weight of plants in order to satisfy proof of the requisite intention.

[15] [2005] VSCA 300

[16]        DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299

[17] (2007) 15 VR 388

[18] [2008] VSCA 69

24In Nguyen which concerned charges of trafficking the court stated:

“… While ss.71 and 71AA require proof of an intention to commit the physical act of trafficking which is charged, and knowledge of the nature and quantity of the substance the subject of trafficking, belief falling short of actual knowledge of the facts should be capable of sustaining an inference of intention; as too should proof that the act in question is done in circumstances which make it appear beyond reasonable doubt that the accused is aware of the likelihood of the facts (in the sense of being aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug).  In each case, however, assuming an absence of relevant admissions, the existence of the requisite intention would be a question of fact to be decided by the jury as a matter of inference on the basis of all the facts and circumstances.”[19]

[19]        DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299 at [15]

25In Bui, a case concerning cultivation of 158 cannabis plants at a residential house, a conviction was challenged on appeal largely on the basis that no direction on intention had been given to the jury.  The court noted that the only substantial issue was whether the appellant had been one of the persons involved in the cultivation and in those circumstances no direction as to intention needed to be given.  The court acknowledged that in a prosecution for cultivating a commercial quantity of cannabis:

“… the Crown must prove beyond reasonable doubt that the accused knew or believed that the plants the subject of cultivation were cannabis and that the number of plants was not less than 100.

I also agree with Eames, JA that the intent to cultivate cannabis plants in not less than a commercial quantity may be proved as a matter of inference from proof that the accused did the physical act or acts alleged, and the circumstances in which it or they were done, recognising, however, that it remains in each case a question for the jury whether the circumstances are sufficient to establish the requisite knowledge or belief.  Just as in a case of trafficking in a commercial quantity of a prohibited substance, so too in a case of cultivating a commercial quantity of cannabis, it may not always be enough to prove intent that an accused believed or was aware that there was a significant or real chance that his conduct involved a commercial quantity; although it usually will be.”[20]

[20]        R v Bui [2005] VSCA 300 per Nettle JA at [63] to [64]

26Later in that judgment His Honour noted:

“Upon reviewing the evidence in this case, it appears to me that the jury could not have doubted that the applicant knew or believed that there was a significant or real chance that there were more than 100 plants under cultivation.  The still photographs which were in evidence convey a powerful impression of the operation, and the video tape of the crime scene puts beyond doubt that anyone who went into the garage and the bedroom (as on the applicant’s own admission he did) had to have seen a veritable forest of large cannabis plants and potted seedlings, apparently numbering well in excess of 100, systematically arranged among the hydroponic apparatus which Eames, JA has described.  In the face of the evidence, it is fanciful to suppose that someone who went into those places might not have believed that there was a significant or real chance that the number of plants exceeded 100, and in this case there is no reason why that should not be regarded as sufficient to found an inference of intent.”[21]

[21] Ibid at [72]

27The evidence in the present case available to the Crown indicates that the weight of the cannabis cultivated by Mr Black was more than four times by weight, the threshold for a commercial quantity.  There is no submission on behalf of Mr Black that anyone other than himself was involved in the cultivation of these cannabis plants.  To suggest that the question of intent to cultivate a commercial quantity would amount to a triable issue in this is ultimately fanciful.  Mr Black has not satisfied me that there would be a miscarriage of justice if he were held to his plea.

28I am satisfied that Mr Black in all probability was induced to enter a plea of guilty in order to gain some technical advantage.  Nevertheless the strength of the prosecution case seems to me to be overwhelming and I am not satisfied that at the time of entering his guilty plea he did not believe, at the time of his offending, there was a significant or real chance that the cannabis cultivated by him, weighing in excess of 100 kilograms, involved a commercial quantity.

29The application must be rejected.

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