Kumar v The Queen

[2015] HCATrans 336

[2015] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M106 of 2015

B e t w e e n -

VINOD JOHNNY KUMAR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 11.38 AM

Copyright in the High Court of Australia

MR C.B. BOYCE, SC:   If the Court pleases, I appear on behalf of the applicant, with my learned friend, MR P.S. KILDUFF.  (instructed by Stary Norton Halphen)

MS N. ROGERS, SC:   If the Court pleases, I appear with my learned friend, MR B.L. SONNET.  (instructed by Director of Public Prosecutions (Vic))

KEANE J:   Mr Boyce.

MR BOYCE:   Your Honours, the point of principle at stake in this application is that in application, if not in form, there is a yawning disjunction that exists between the reason why the rule against allowing a change of plea exists, and the substance of the test that governs that rule’s application – in short compass, the reason why one cannot as of right change one’s plea from guilty to not guilty is the need to preserve finality, and yet the test employed by the courts for determining whether such a change of plea ought be permitted, as we see from the judgment of the court below, does not concern itself with finality.  It concerns itself solely with the state of mind of the plea maker and the objective question as to whether on the facts the plea maker might be guilty or could be guilty of the charge alleged.

Thus, as the law currently stands, and as was applied here, if the accused fails to establish that his plea is, as it were, if I can use this term, invalid, that is, fails to establish that it was affected by duress, fraud, intimidation or if the alleged facts could not sustain the plea, this accused will fail to discharge the onus requiring a change of plea and he or she will have failed to establish a miscarriage of justice without considerations of finality, and that is to say the existence of the rule in the first place even needing to be considered.

Thus, it is that in this case where an accused makes what one might term a non‑vitiating error of his own making, as the learned judge at first instance described it here, that that error was as follows, as the judge found, that he had pleaded guilty on the basis of an error of his own making that he would receive something in the order of one to two years when as we know somewhat later he received – it was a colossal error; he received 18 years.

Where he realises this error soon after or relatively promptly after arraignment and seeks to correct it prior to a submission being made on the plea and certainly prior to sentence, he is held to the error solely on the basis of an analysis of his state of mind at the time of making the plea and no one is asked whether or not the alteration of the plea would cause any prejudice to the Crown, no one is asked whether or not the change of the plea would cause any administrative inconvenience ‑ ‑ ‑

KEANE J:   One difficulty which arises on this submission, which is that the plea of guilty was mistaken, is that pointed out by the Court of Appeal at paragraph 18 at pages 59 to 60 of the application book, which is that there has never been a suggestion that the plea was erroneous in the sense that your client was actually innocent.

MR BOYCE:   This is not a point of error and we need a point of principle, but we do take issue with that statement.  The evidence before Judge Sexton, as summarised in her Honour’s conclusions, was that he pleaded solely for the pragmatic purpose of obtaining a more lenient sentence, but he had done nothing wrong, but more importantly, once this point was pointed out at first instance by the Court of Appeal, he filed an affidavit denying the offences.

Now, one would have thought that evidence in and of itself was capable of grounding the very inference that your Honour speaks about, or the very factual conclusion of which your Honour speaks.  If that was the only point, we would have perhaps some difficulties given their Honours’ findings of fact below, but the point – this is why we suggest, with respect, this case is a good vehicle, because the evidence before her Honour given by the applicant was not to concede that he had done anything wrong; in fact, he positively denied it before the Court of Appeal.  The findings of fact made by her Honour at first instance were that the plea was not vitiated in the normal way in which that is described and found in cases such as Maxwell and Meissner.

But what we find here is that the dicta – or what guides courts in determining whether or not to allow the plea of guilty to be changed or not is the application of the dicta of this Court in Meissner and Maxwell, both of which are not cases concerning changes of plea, might I add?  I think Maxwell is about traversal of plea and Meissner is about the inducement of a plea of guilty and whether or not that might be an attempt to pervert the course of justice.  But we find these dicta have been called into a different question, a question, I might add if I may, your Honours, this Court has not determined or made any findings about or considered in any detail; namely, the law that concerns changes of plea, with the net result ‑ ‑ ‑

KEANE J:   If one looks at page 68 of the application book, paragraph 1.1 of your summary of argument, the proposition you are advancing is this, that:

a defendant who has pleaded guilty possess a prima facie right to change his or her plea to one of not guilty prior to sentence being imposed?

MR BOYCE:   Your Honour, I confess that is perhaps a little strident.

GORDON J:   What is the principle?  If that is the principle, you have got two problems.  It is prima facie, so it is automatic, and secondly, you shift the onus to the Crown.

MR BOYCE:   Indeed.

GORDON J:   So what is it?

MR BOYCE:   The common – on reflection, the point of principle is that courts at least take into account finality and prejudice in determining whether or not a plea may be permitted to change.

GORDON J:   What does that mean?

MR BOYCE:   It means in practical terms in this case when Mr Kilduff made his submissions before Judge Sexton to the effect that the discretion should be exercised in his client’s favour for the reasons that he gave, one further question – or two further questions would be asked.  The Crown would asked to stand up ‑ is there any prejudice to you in this occurring, and the judge would take that into account.  It may make no difference in the result, but that is the sole question that would be asked.  Is there any prejudice?

As the law currently stands, in application of the test, by dint of the dicta in Maxwell and Meissner, one need not ask that question, in fact because the inquiry centres solely upon the state of mind – or mainly on the state of mind of the accused person.  All it would take in this case would have meant standing the Crown up and saying, okay, Mr Kumar has pleaded guilty at arraignment, he has clearly made a mistake, it is self‑induced, he has not been induced to make a mistake by his legal representatives but he had the view in his head that he was going to get one to two years, he sees the error of his ways, he would like to change his plea; is there any prejudice to that?  That question is not asked.

Now, I confess, your Honours are quite correct, I have put the special leave question rather more stridently in the submissions and I do not resile from it, but I do not need to go that far.

KEANE J:   So what is there about what you are putting to us that would not mean that any accused who pleads guilty and does not like the sentence gets to have another go?

MR BOYCE:   Any accused at present who does not like a sentence gets to have another go in an intermediate appellate court – gets to attempt to have another go.

KEANE J:   On grounds that we all understand.

MR BOYCE:   On grounds that we all understand.

KEANE J:   But on your approach, he does not need to establish any of those grounds.

MR BOYCE:   No, with respect, they would all remain.  But my question, what is at least wrong with the court saying, and in addition is there any prejudice?  It may make no difference in the end in a case many years after sentence where there is clear prejudice and where the accused may not be able to establish that the plea is vitiated, one would assume they are on a hiding to nothing.  But in a case like this where the plea has not even begun and he has made ‑ ‑ ‑

GORDON J:   So on your proposal or proposition, you would have someone in the middle of, what, a sentencing hearing suddenly say, “I don’t like the way the wind is blowing.  I want to change my plea”?

MR BOYCE:   Well, they can do that now.  They can do that now.

GORDON J:   But on your test, there is nothing stopping that happening, there is no limit.

MR BOYCE:   They could do it now.  They may or may not succeed.

GORDON J:   But what is the criteria on your proposition other than ‑ ‑ ‑

MR BOYCE:   The criteria would remain exactly the same, but for the fact that the court would also consider whether there is prejudice.  That is all we ask in addition.  At the moment the application of the test is solely concerned with the state of mind of the plea maker and, in our submission, it would probably make no difference in end results.  It is simply another factual consideration to take into account.  But not taking it into account in a case like this, in our respectful submission, produces results that would seem, with respect, to the layperson manifestly unjust.  A person has made an error.  He is human.  He made an error.  It is often said to err is to be human or to be human is to err.

But he is held to that error.  He is held to it at a very early time because he cannot overcome the hurdle that is set up by means of his state of mind without the other side being asked, “Well, is there any problem with this”, and in circumstances where if he was to change he would be prima facie handing the Crown a rather, one would have thought, compelling piece of evidence, namely, a confession.  That is all we ask.  I know, your Honours, that it is put a little more stridently in the documents, but ultimately that is our case.

KEANE J:   Why is not the sort of proposition you are putting to us precisely the sort of thing that is a matter for the legislature rather than the Court?  If there is to be this change to the level of solemnity and finality involved in a voluntary plea of guilty, why is that not something which is properly and exclusively a matter for the legislature rather than the Court?

MR BOYCE:   With great respect, your Honour, may I draw issue with your Honour’s foundational premise?  There ought be no change to the solemnity or formality of the proceeding.  All we are asking for is one further matter be taken into account.  It will make very little difference – first things first – it may be that the Crown says, “Well, there is no prejudice, but there is no difference in result”.  It may be, depending on the nature of the error, like here, an error of his own making in respect of a person who presumably is from another country – it may be the judge decides differently, but as the law currently stands the judge cannot even take it into account and in this case the other side was not even asked.

So with the greatest respect, your Honour, I draw back from the foundational premise upon which your Honour’s question to me was based.  There ought be no difference to the solemnity and, indeed, the solemnity would serve the added purpose of providing the – or adding to the cogency of the evidence that would handed to the Crown if and when it decided to lead that evidence against the accused on a trial.  If I can answer your Honour this way as well, this is a matter, one would have thought, has certainly been governed by the common law for some time.  The test has always been miscarriage of justice which one would have thought at first blush is an open‑ended formulation, but in its application certainly, as here and throughout Australia, it focuses upon the state of mind of the accused.

If the accused cannot satisfy those conditions that are set out in Meissner and Maxwell and so forth, then he or she fails and no question is asked of the Crown.  So, in response to your Honour’s observation, we would contend that there would be very little difference in the way in which – but the proceeding would be, with respect, much fairer; much fairer, all things being considered.

So that is the point of principle that we contend for.  It is common to the way in which we have put it in our submissions.  There need not be a prima facie right to accept the argument that we put.  The onus could still remain on the accused.  We submit, with respect, this is a very good vehicle

to consider it.  It is not a plea entered after sentence.  It is not a plea entered even after plea submissions.  It is an attempt to change after arraignment prior to plea, and when one goes to her Honour’s findings of fact about the state of mind of the accused which one can find at application book 25 to 26, paragraphs 53 to 55 or thereabouts, it is made abundantly clear that her Honour found that this man had:

pleaded guilty in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  He fully understood the nature of the charges, and intended to admit he was guilty of them, even if he believed he was not.

GORDON J:   It was a mistake of his own making.

MR BOYCE:   Exactly.  We accept that, but people will make mistakes.  People will make mistakes and it seems – I will not repeat it; your Honours know the point I make.  What we are contending for will not make such a change.  It is a good vehicle.  The yawning gap between the error – her Honour found was in the accused’s mind.  One or two years and the sentence he ultimately received is immense.

So, for those reasons, your Honours, we consider – or we submit, with respect, there is a point of principle this Court has not in depth – or considered a change of plea case.  Whatever your Honours would have to say, that would hold true, I would have thought, throughout this jurisdiction, or the jurisdictions, and this case is a good vehicle for consideration of the point.  I do not think there is anything further I can usefully add.

KEANE J:   Thank you, Mr Boyce.  We need not trouble you, Mr Rogers.

The decision of the Court of Appeal was clearly correct.  Special leave is refused.

AT 11.56 AM THE MATTER WAS CONCLUDED