Hikala v Constable Elliott; Treloar v Constable Elliott
[2016] NSWSC 81
•17 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: Hikala v Constable Elliott; Treloar v Constable Elliott [2016] NSWSC 81 Hearing dates: 16 February 2016 Decision date: 17 February 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 55(3)(a) of the Crimes (Appeal and Review Act) 2001, the orders of the Second Defendant refusing the applications of Mr Hikala and Ms Treloar to cross-examine a witness be set aside.
(2) Pursuant to s 55(3)(a) of the Crimes (Appeal and Review Act) 2001, the orders of the Second Defendant refusing the applications of Mr Hikala and Ms Treloar to vacate his or her plea of guilty be set aside.
(3) The matters of Mr Hikala and Ms Treloar are to be remitted to the Local Court, constituted other than by Brown LCM or Knight LCM, to be determined according to law.
(4) Each party to pay their own costs.Catchwords: CIVIL LAW – Crimes (Appeal and Review) Act 2001 (NSW) – appeal against interlocutory decisions of Local Court – applications to withdraw pleas of guilty – cross-examination on affidavits of prosecution witnesses refused – consent orders made setting aside orders of Local Court Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) Cases Cited: R v Boag (1994) 73 A Crim R 35
Wong v DPP [2005] NSWSC 129; (2005) 155 A Crim R 37Category: Principal judgment Parties: Kayla Treloar (Plaintiff)
Tony Hikala (Plaintiff)
Constable Michael Elliott (First Defendant)
Local Court of New South Wales (Second Defendant)Representation: Counsel:
Solicitors:
G Lewer (Plaintiff)
B K Baker (First Defendant)
Blair Criminal Lawyers (Plaintiff Treloar)
O’Brien Solicitors (Plaintiff Hikala)
Crown Solicitor’s Office (First and Second Defendants)
File Number(s): 2015/183741; 2015/184154 Decision under appeal
- Court or tribunal:
- Local Court of New South Wales
- Date of Decision:
- 5 May 2015
- Before:
- Brown LCM, Knight LCM
- File Number(s):
- 2014/210825; 2014/198653
Judgment
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This is an application for leave to appeal brought pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) by each of the plaintiffs, Mr Tony Hikala and Ms Kayla Treloar. It came before me as a consent matter in the Duty List. The first defendant accepts that the appeal must be allowed, and ancillary orders made. For the following reasons, I accept the joint submission of the parties that the orders sought are appropriate.
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The background of the matter is as follows.
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On 5 July 2014, Ms Treloar was charged with one count of assault, three counts of affray, and one count of offensive language. On the same date, Mr Hikala was charged with one count of affray and one count of assault.
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On 5 February 2015, each of them, whilst represented by a solicitor, entered pleas to some of the charges brought against them. Other charges were withdrawn.
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On 5 May 2015, each of the plaintiffs applied to withdraw the pleas of guilty that had previously been entered. By that stage, each was represented by a new solicitor. The basis of each application was the proposition that each plaintiff had been pressured into pleading guilty by his or her previous solicitor.
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The matter came before Brown LCM (the first Magistrate). Affidavits were read of the plaintiffs, and also of their previous solicitors. The latter affidavits denied that the plaintiffs had been so pressured. Thereafter, the new solicitors for the plaintiffs separately applied to cross-examine the former solicitors on their affidavits. After hearing submissions, the learned Magistrate refused the application, and remarked that such matters are “normally dealt with by way of affidavit alone”. Amongst other reasons given for the rulings, it was said that the Local Court is not the proper forum for determination of questions of alleged unprofessional conduct; that cross-examination would cause the hearing of the matter to become unduly lengthy; and that principles of construction of a contract in civil proceedings have a role to play when a person has provided written instructions to enter a plea of guilty.
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In short, his Honour determined that the central issue should be determined on documents alone.
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On the basis of those documents, his Honour did not accept that Mr Hikala had been pressured into pleading guilty, refused the application, and stood his matters over for sentence on a later date. For reasons that I respectfully consider are a little hard to discern, his Honour disqualified himself from hearing further the application of Ms Treloar, and referred it to Knight LCM (the second Magistrate).
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The second Magistrate also rejected an application made on behalf of Ms Treloar that her former solicitor be cross-examined. Amongst the reasons given for that approach were the fact that the first Magistrate had already ruled on the matter, and the fact that the former solicitor had already left the vicinity of the court. Again, her Honour did not accept on the documents that Ms Treloar had been pressured into pleading guilty, refused the application, and stood her matter over for sentence as well.
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Thereafter, the plaintiffs commenced the proceedings that came before me.
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As I have said, the parties were in agreement that each Magistrate had committed a significant error of law.
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Turning to my own opinion, and to state the applicable principle very concisely, a plea of guilty will almost always be permitted to be withdrawn if it is not, in truth, attributable to a genuine consciousness of guilt: see R v Boag (1994) 73 A Crim R 35 at 36. There are many ways in which an absence of that state of mind may be demonstrated; one that is not uncommon, regrettably, is by establishing that a defendant was unduly pressured by his or her lawyer or lawyers into entering the plea.
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Speaking more generally with regard to principle, if there is a dispute about an important question of fact, and contradictory affidavits or written statements are relied upon by the opposing parties, then each party must have the opportunity to cross-examine the deponents that support the case of his or her opponent, except in very unusual circumstances. Our system of justice does not operate by way of determinations of issues of credibility based upon analysis of documents; perhaps that statement applies with even more force to our system of criminal justice.
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Turning specifically to disputed applications to withdraw a plea of guilty, I respectfully think that it is not the case that such matters are commonly dealt with on the papers. To the contrary, my experience is that the resolution of the vast majority of such matters requires the calling of oral evidence, because of the general principle I have set out above.
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As well as that, Howie J spoke in Wong v DPP [2005] NSWSC 129; (2005) 155 A Crim R 37 of the same need when his Honour said at [18]:
But where the resolution of the application depends upon the magistrate forming a view as to the integrity of a plea of guilty as an acknowledgment or confession of guilt, and where that matter can only be resolved by forming a view as to the defendant’s knowledge and understanding of the effect of a plea of guilty or by determining the circumstances in which the plea was given, there is no room for short cuts or informality. There may be cases where the objective facts make it plain that a doubt must arise about the integrity of the plea, but that would be an exceptional state of affairs.
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That case does not support the proposition that the procedure adopted here was correct; indeed, I respectfully think that it is to the contrary.
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Separately, I respectfully consider that the approach to the (objective) task of construing the meaning of a contract in civil proceedings has very little or no role to play in the (subjective) task of determining whether or not a plea of guilty has been entered due to a true conciousness of guilt.
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For those reasons, I accept the joint submissions of the parties that the substantive consent orders sought should be made.
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As for the ancillary orders, I queried at the hearing whether one or both plaintiffs should have their costs, in light of the fact that the prosecutor at first instance arguably failed to assist their Honours to avoid falling into error. Counsel for the plaintiffs, however, made a considered decision not to seek costs, and I do not propose to intervene in that of my own motion.
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Finally, I agree that it is appropriate that a fresh start be made, whereby the matters are remitted to Magistrates other than those who were originally involved.
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I make the following orders by consent:
Pursuant to s 55(3)(a) of the Crimes (Appeal and Review Act) 2001, the orders of the Second Defendant refusing the applications of Mr Hikala and Ms Treloar to cross-examine a witness be set aside.
Pursuant to s 55(3)(a) of the Crimes (Appeal and Review Act) 2001, the orders of the Second Defendant refusing the applications of Mr Hikala and Ms Treloar to vacate his or her plea of guilty be set aside.
The matters of Mr Hikala and Ms Treloar are to be remitted to the Local Court, constituted other than by Brown LCM or Knight LCM, to be determined according to law.
Each party to pay their own costs.
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Decision last updated: 22 February 2016
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