Liu v Director of Public Prosecutions (NSW)

Case •

[2024] NSWSC 382

•

12 April 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382
Hearing dates: 12 and 18 March 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction:Common Law
Before: Chen J
Decision:

(1)   Extend the time for the plaintiff to file the summons in this Court until 29 July 2023.

(2)   In relation to grounds 1-4 and, to the extent required, in relation to ground 5, refuse leave to appeal.

(3)   Order the appeal, and the amended summons filed 4 March 2024, be dismissed.

(4)   Make no order as to costs with the intent that each party is to bear his or its own costs.

(5)   Grant the defendant liberty to seek an order that the plaintiff pay its costs of the proceedings in this Court, such liberty to be exercised by notice in writing to my Associate within seven days, with a view to directions being made in chambers and the question being determined on the papers.

Catchwords:

CRIME – appeal and review – appeal from Local Court to Supreme Court – where appeal directed towards decision of Local Court magistrate to refuse leave to withdraw guilty pleas – whether plaintiff has been “convicted” by the Local Court for the purposes of ss 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff is a person against whom an interlocutory order has been made in relation to summary proceedings and can only proceed under s 53(3)(b), requiring a “question of law alone” and leave of the Supreme Court – no “question of law” arising – no basis to grant leave – leave to appeal refused – conviction appeal pursuant to ss 52(1) or 53(1) – prosecution proceeding on agreed basis – no “question of law” arising – no basis to grant leave – leave to appeal refused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Supreme Court Act 1970 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472

Attorney-General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Corcoran v Far [2020] NSWCA 140

Director of Public Prosecutions (NSW) v Illawarra

Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34

Ferella v Chief Commissioner of State Revenue (NSW) (2014) 96 ATR 875; [2014] NSWCA 378

Fordham v Fordyce (2007) 154 LGERA 49; [2007] NSWCA 129

Grant v Local Court of New South Wales [2015] NSWSC 356

Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44

Hill v King (1993) 31 NSWLR 654

Hopgood v R [2019] NSWCCA 246

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

JP v Director of Public Prosecutions (NSW) (2015) 256 A Crim R 447; [2015] NSWSC 1669

Koschier v R [2024] NSWCCA 24

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Meagher v Stephenson (1993) 30 NSWLR 736

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9

Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

R v Filimoehala (2003) 138 A Crim R 299; [2003] NSWCCA 37

R v GAT [2024] NSWCCA 32

R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272

R v PL (2009) 261 ALR 365; [2009] NSWCCA 256

R v Sewell [2001] NSWCCA 299

R v XHR [2012] NSWCCA 247

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185

Sayer-Jones v Director of Public Prosecutions (Supreme Court (NSW), Wilson J, 14 May 2019, unrep)

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Selkirk v Director of Public Prosecutions [2020] NSWSC 1590

Strbak v Newton [1989] NSWCA 202

Styles v Rowley [2023] NSWSC 1053

Sydney Trains v Batshon [2021] NSWCA 143

Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40

White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241

Williams v The Queen (1986) 161 CLR 278

Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129

Category:Principal judgment
Parties: Ziyi Liu (plaintiff)
Director of Public Prosecutions (NSW) (first defendant)
Local Court of NSW (second defendant)
Representation:

Counsel:
M Kalyk (plaintiff)
C Gleeson SC (first defendant)

Solicitors:
Murphy’s Lawyers (plaintiff)
Solicitor for Public Prosecutions (NSW) (first defendant)
File Number(s): 2023/00240771
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Local Court of NSW
Jurisdiction:
Criminal
Citation:

N/A

Date of Decision:
24 March 2023
Before:
Brender LCM
File Number(s):
2020/00262691

JUDGMENT

Introduction

  1. On 9 September 2020, Ziyi Liu (‘the plaintiff’) was charged with 22 offences that arise out of events that occurred at Star City Casino between 5 August and 9 September 2020. Essentially, the prosecution case was that the plaintiff, and two others who were dealers at that casino, engaged in cheating while playing the game Baccarat. Put very simply, that cheating involved what was described as a Baccarat collusion scam whereby the dealer would look at, and memorise, a number of cards and convey them to the plaintiff, who would bet heavily on what was said to be a corrupted hand.

  2. The plaintiff, by amended summons filed 4 March 2024, seeks to appeal as of right, or by leave to appeal, pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (the ‘CAR Act’), essentially two decisions of a Local Court Magistrate. Grounds 1-4 of the amended summons are directed to a challenge to the decision of the Magistrate to refuse the plaintiff leave to withdraw pleas of guilty and ground 5 is directed to challenging his conviction on sequence 5 – being the offence, provided by s 351A of the Crimes Act 1900 (NSW), of recruiting others to assist in carrying out criminal activity, being dishonestly obtaining financial advantage.

  3. The plaintiff tendered a court book (exhibit A) and it is convenient to refer to the page numbers in that exhibit as CB 1 etc. when referring to the judgments of the Magistrate and particular parts of those judgments.

  4. The Director of Public Prosecutions (NSW) (‘the defendant’) is the only active defendant in the proceedings.

Background

  1. I will set out the background facts across nine parts: first, the charges against the plaintiff in the Court Attendance Notice; secondly, the circumstances of the offending; thirdly, the making of pleas of guilty and the ‘plea deal’; fourthly, the procedural history and developments following the initial hearing; fifthly, the plaintiff’s application for leave to withdraw the guilty pleas; sixthly, the decision of the Magistrate refusing the plaintiff leave to withdraw the guilty pleas; seventhly, the continuation of the hearing in relation to the contested charges; eighthly, the judgment delivered on 5 May 2023; and, finally, the judgment delivered on 30 June 2023.

The charges: the Court Attendance Notice

  1. On 9 September 2020, the plaintiff was charged with 22 offences by Court Attendance Notice. By way of summary:

  1. There were 19 charges alleging that the plaintiff, contrary to s 192E(1)(b) of the Crimes Act, dishonestly obtained financial advantage, or caused disadvantage, by deception. Specifically, the offending was alleged to involve the plaintiff “cheating at the star Casino whilst playing Baccarat” and thereby dishonestly obtaining financial advantage. The offending was alleged to have occurred in the period 5 August 2020 to 9 September 2020. The financial advantage alleged to have been obtained by the plaintiff was substantial: $530,850.00. These were sequences 1-3 inclusive and 6-21 inclusive.

  2. There was one charge alleging that the plaintiff, contrary to s 93T(1) of the Crimes Act, in the period between 14 August 2020 and 9 September 2020, participated in a criminal group that defrauded the Star Casino by cheating at Baccarat. This was sequence 4.

  3. There was one charge alleging that the plaintiff, contrary to s 351A(1) of the Crimes Act, in the period 1 December 2019 to 1 March 2020, recruited others to assist in carrying out a criminal activity – namely, dishonestly obtaining financial advantage etc. This was sequence 5.

  4. There was one charge alleging that the plaintiff, contrary to s 93T(1A) of the Crimes Act, knowingly participated in a criminal group, in the period between 1 August 2020 and 9 September 2020, by directing the activities of the group, knowing or being reckless as to whether that participation contributed to the occurrence of criminal activity. This was sequence 22.

The circumstances of the offending

  1. In relation to the fraud offences for which there were pleas of guilty, the essential allegation was that the plaintiff cheated whilst playing Baccarat by placing a number of bets based upon an identified card sequence that had been conveyed to him by a dealer (named Alex). In relation to the offence of recruiting another to assist in carrying out a criminal activity (sequence 5), the essential allegation was that the plaintiff had recruited a dealer (named Andy) to carry out or assist in carrying out the betting scam. (There is an issue between the parties about the extent to which the plaintiff put in issue elements of this offence, to which it will be necessary to return later).

The guilty pleas

  1. The matter was listed for hearing in the Local Court on 4 August 2022 before Magistrate Brender. At the commencement, the plaintiff and the prosecution sought a short adjournment so as to continue “negotiations” in order “to try to resolve the fraud charges, the 19 of them”, which was duly granted by the Magistrate. As noted above, the “fraud” charges were sequences 1-3 inclusive and 6-21 inclusive.

  2. When the matter resumed, the position that was initially reached was that three sequences were to proceed to a contested hearing – namely, sequences 4, 5 and 22. Then, following a further exchange between the Magistrate, counsel for the plaintiff and the prosecution, the plaintiff indicated a plea of guilty would be entered to sequence 4, with the Magistrate indicating that he was “inclined to accept the plea”. The Magistrate was advised that sequences 5 and 22 were “for hearing”, that the prosecution were “seeking a plea to sequences 1, 2, 6, 7 and 8”, with the remainder – except for sequence 20, which was to be withdrawn – to be placed on a Form 1.

  3. In relation to sequence 4, the following should be noted. The hearing was conducted, essentially on the basis that “evidence” would be adduced dealing with “participation … [and] direction, of the criminal group” and that sequences 4 and 22 would be “alternatives”. Counsel for the plaintiff then indicated that the plaintiff would “enter a plea to sequence 4 and apparently, if in the hearing, the prosecution satisfies [the Court] about sequence 5 they will then seek to withdraw sequence 4…”. The position appeared to have been reached is that, in connection with the remaining charges, it was only possible to have convictions in connection with sequences 4 and 5 or 22 and 5. It was foreshadowed, notwithstanding that a plea of guilty was made to sequence 4, that the plaintiff may seek to have the Magistrate “reverse that acceptance of the plea on (4) and dismiss it”.

  4. Following on from the above, and given the dispute between the parties that has arisen in connection with ground 5 of the amended summons, it is important to note the following statement by counsel for the plaintiff that identified the basis upon which the offence of recruiting a person to engage in a criminal activity contrary to s 351A of the Crimes Act was to be contested by the plaintiff:

Can I tell your Honour what the dispute is? The dispute is, so that your Honour understands the context, the prosecution case is that we, the [plaintiff] recruited two dealers who worked at the casino into a corrupt betting arrangement. We say it’s quite the opposite; they, those two dealers, invited us into the scheme. Unguided – when I say us, the singular person.

  1. The hearing in relation to sequences 5 and 22 commenced. The officer in charge was called to give evidence, as were the two dealers involved in the offending. Each of them were cross-examined by counsel for the plaintiff.

  2. It is convenient to also address some other references to the way in which the plaintiff confined the issues in dispute before the Magistrate. The defendant drew attention to three other exchanges that were argued to confirm that the only issue in connection with this offence raised by the plaintiff was that the recruitment was not undertaken by the plaintiff, but by the dealers. That was said to be confirmed by the following further exchanges:

  1. The first was on 4 August 2022, after the prosecutor had adduced evidence from a dealer (described in evidence as “Alex”) that, in effect, the plaintiff was betting upon an outcome that he was aware of given the sequence of cards that had come out, the prosecutor sought to have Alex address what was shown in CCTV footage – in particular, as the prosecutor described, to “explain what he’s doing, essentially”. The Magistrate then directed a question to counsel for the plaintiff – namely: “is this in contest that that’s what they were doing? The dealers?”, to which counsel for the plaintiff responded: “Your Honour, that’s not part of our contest”.

  2. The second was on 24 March 2023, when the prosecutor sought to play CCTV footage (which, according to the transcript, was in connection with sequence 1), which apparently suggests “manipulation of the cards” that was referred to in evidence by the witnesses as well as, on 7 September 2020, showing the movements of the plaintiff. There was then the following exchange:

HIS HONOUR: I’m just not sure what the point of watching this is, at the moment. Unless you tell me what I’m watching.

PROSECUTOR: Yes, your Honour.

HIS HONOUR: Or there’s some agreement about what they say.

PROSECUTOR: Your Honour, this is - -

COUNSEL FOR THE PLAINTIFF: Also isn’t the sole issue for you to determine whether there was a directing or recruiting by my client of the relevant people? I don’t know how showing CCTV footage is going to advance that issue.

PROSECUTOR: Your Honour, this footage is about to show the sequence of cards coming out. They were peeked.

COUNSEL FOR THE PLAINTIFF: On the plea it’s been admitted. Apparently.

  1. The third was also on 24 March 2023, when the prosecutor sought to play CCTV footage in order to demonstrate when the dealer was using his mobile telephone, when the plaintiff was using his mobile telephone and then “going to the table that the dealer was at and then placing the bets”. The Magistrate enquired whether “there can be some agreement about what these (sic) this shows in terms of the timing”, such that if the offence and their time are agreed then the Magistrate did not “have to discern them… off the video”. At that point, counsel for the plaintiff said:

Sure, your Honour, can I just ask though the relevance. I still don’t understand, if the sole issue in dispute is whether – who is doing the recruiting, and who is doing the directing, why do we need this? I don’t understand.

  1. It is, I consider, important to note that there was no suggestion in the conduct of the hearing that the plaintiff was conducting – or wished to conduct – the defence to the charge on a basis other than what was indicated on 4 August 2022. On the contrary, on 24 March 2023, counsel for the plaintiff repeatedly confirmed the charge was being defended solely based on that identified issue.

  2. The prosecution case then was essentially completed, although it was expected that video footage would be played and tendered on a subsequent occasion.

  3. The hearing of the charges did not complete on 4 August 2022, and the hearing of sequences 5 and 22 was stood over to 21 October 2022.

The procedural history: the developments following the hearing

  1. The hearing in connection with sequences 5 and 22 that was scheduled to resume on 21 October 2022 did not proceed. It appears that the hearing “was vacated so that [the plaintiff] could make a plea traversal application”. The matter was then stood over until 28 October 2022. On that day, “it was stood over for the actual plea traversal hearing on 23 February [2023]”.

  2. As it happens, however, that hearing did not proceed because the plaintiff withdrew the plea traversal application. Given those developments, the hearing for sequences 5 and 22 was listed for finalisation on 24 March 2023.

The hearing on 24 March 2023: the application for leave to withdraw the pleas of guilty

  1. On 24 March 2023, the plaintiff made an application “to change the pleas from guilty to not guilty”. Although it appears that the prosecution was given a “few” days’ notice of the plaintiff’s intent to pursue the application, the Court was not.

  2. The plaintiff, in support of that application, read two affidavits: one from the plaintiff, affirmed 19 October 2022; and one from his solicitor, Abdul Tlais, sworn 15 February 2023. The prosecution called some short evidence from the officer in charge. The plaintiff and the prosecution made oral submissions.

  3. The Magistrate then delivered essentially ex tempore reasons refusing the application for the plaintiff to withdraw his pleas.

The decision of the Magistrate refusing leave to withdraw the pleas

  1. Although it will be necessary, in order to deal with grounds 1-4 raised in the amended summons, to return to some of the detail of the Magistrate’s reasons, it is sufficient for present purposes to note the following summary of the key conclusions reached in connection with the application for leave to withdraw the pleas of guilty:

  1. The Magistrate noted that there was “an agreed fact that there were extensive negotiations on the day of the hearing leading to the entry of the pleas” (CB 196.42).

  2. The Magistrate held that the decision in White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241 (‘White’), relied upon by the plaintiff, established that the “proper test to be applied where an accused seeks leave to withdraw a guilty [plea] prior to conviction is whether the interests of justice require that course to be taken” (CB 196.45). The Magistrate also noted that the decision in White at [65] provided a “non-exhaustive list of factors which effect the interests of justice” (CB 197.4).

  3. Applying the “broad interests of justice test”, the Magistrate made the following findings:

  1. there “was a formality in the plea by having the barrister stand up and enter that plea in Court with [the plaintiff] present” (CB 199.2);

  2. there “was a delay between the entry of the plea and the application for its withdrawal” (CB 199.4);

  3. there is “possible prejudice to the Crown in the sense that the two witnesses who have already given evidence are going to have to be recalled and their level of cooperation is not guaranteed”, albeit that the Magistrate considered this a “somewhat weak factor” because there was no particular evidence about this, merely that it was “certainly undesirable to be having witnesses recalled and giving evidence on a second occasion in the same case” (CB 199.5-199.10);

  4. the nature and extent of the legal advice “is against the application”. There was “lengthy and comprehensive advice” according to the plaintiff’s former solicitor, and there was no cross-examination of the solicitor nor any suggestion that “full and frank and fearless advice was not given or that it was wrong, or misconceived and the barrister was not called either or had any criticism put to him and his notes were not provided” (CB 199.15);

  1. the onus is upon the plaintiff “to demonstrate that something happened in the process of giving the advice and obtaining the plea that it is in the interests of justice to permit its withdrawal” (CB 199.17);

  2. the offending and charges, and likely consequence, were serious and although the Magistrate had “not given that any real consideration it does seem like a serious case” (CB 199.23);

  3. the Magistrate did not think there was “impropriety [or] any imprudent or inappropriate advice” (CB 199.27);

  4. in relation to whether there was a “real question about the guilt, I accept there might be a question, it might be a real question. I cannot embark on that with the material that I have” (and later stated that he was not able to “make a finding about how strong that real question is”: CB 199.37) and in this respect noted that all “that was really put was that some of the advice may have been overstated in that one or perhaps three of the occasions in which the CCTV footage captured what happened involved the cards being visible so that presumably in many of the cases that level of evidence is not available” (CB 199.27-199.37); and

  5. there had been some delay, albeit delay for which the plaintiff was not responsible, but that if the “pleas are withdrawn, there will then be a further serious delay while more court time is taken. I do not think that is in the interests of justice” (CB 199.40-199.46).

  1. The Magistrate then concluded that “[o]n balance, in all the circumstances, I do not think the interests of justice require this plea, or permit this plea to be withdrawn. I DECLINE THE APPLICATION. PLEA TRAVERSAL REFUSED” (CB 199.48-199.50).

The continuation of the hearing

  1. Following the Magistrate refusing the plaintiff leave to withdraw his plea, the hearing continued.

  2. The hearing involved some extracts of the CCTV footage being played – the plaintiff submitted that it was “not clear if those parts were in fact tendered” (plaintiff’s submissions at [53]) and agreed facts being tendered. In relation to the CCTV footage played, this led to the exchanges whereby the plaintiff’s counsel queried the relevance of showing the footage given the narrowing of issues that had been made (those specific exchanges are referred to in [13(2)]-[13(3)], above).

  3. The plaintiff and the prosecution made closing submissions.

  4. It appears that, during the course of submissions, the Magistrate expressed a concern about the effect of the plea of guilty to sequence 4 and whether the effect of that plea might be to foreclose the plaintiff submitting that the prosecution could not make out the offence under s 93T(1) of the Crimes Act (sequence 4) or the offence contrary to s 93T(1A) of the Crimes Act (sequence 22) – essentially because both offences involved a “criminal group”, and there was a plea of guilty in relation to sequence 4 that contained that element. In a nutshell, the argument that the plaintiff sought to run is that the plaintiff did not, by his conduct, participate in a criminal group nor did he institute it and, in any event, whatever the plaintiff participated in was not a criminal group within the definition.

  5. The Magistrate indicated that he had not appreciated that when the plaintiff made the application to withdraw the plea to sequence 4 (T 220.20). The Magistrate also indicated during an exchange with counsel, that the issues in connection with sequence 4 were “completely different” and involved “different issues” to the other sequences the subject of the guilty pleas. The Magistrate indicated to counsel for the plaintiff that the argument then being advanced was not raised, a matter that was accepted by counsel who indicated that this was his “fault” and that he did not “elaborate…on all my grounds”, expressing the view that he did not consider it “appropriate to do so”.

  6. The Magistrate then indicated that he was proposing to “rehear the point about 4”.

  7. Following submissions, the Magistrate granted the plaintiff leave to withdraw the plea to sequence 4 and provided short reasons for doing so (CB 225.36-226.33). Put simply, the Magistrate held that there were “serious legal arguments” about whether what occurred would “involve a criminal group, or the obtaining of benefits from the relevant conduct within the definition” and, given the prosecution accepted that they would not have “run the case any differently”, then that matter “tips the balance of the factors in White towards permitting the withdrawal of the plea, because I think it is possible that it was entered by reason of imprudent advice. Yes, there is a real question about guilt on that matter, because in a question of law, there is no prejudice to the Crown” (CB 226.21).

The judgment delivered on 5 May 2023

  1. The Magistrate delivered a judgment on 5 May 2023 dealing with the “charges which were defended and which are for decision relat[ing] to participating in recruiting and directing a criminal group” (CB 255.32). Although not expressed in terms as relating to sequences 4 and 22, these reasons deal with those offences.

  2. The Magistrate “dismiss[ed] the charges on the basis that there was no evidence at all of there being a criminal group” (CB 258.35). The Magistrate did not, however, deal with sequence 5 in those reasons.

  3. That is apparent from the reasons themselves, although there is some other evidence to the effect that the Magistrate indicated, following delivery of these reasons, that he had “overlooked” making a decision in relation to sequence 5 (affidavit of Bryan Wrench affirmed 8 February 2024, pars 7-8). It is apparent, however, that Mr Wrench was not present when the reasons were delivered, but a solicitor in his office was and her evidence was that, despite the transcript, this is what occurred (affidavit of Sophie Newham affirmed 6 February 2024, pars 5-7). The defendant did not contest this matter and, as I have said, the reasons themselves indicate that the Magistrate did not deal with sequence 5.

The judgment delivered on 30 June 2023

  1. The Magistrate delivered a judgment on 30 June 2023 in connection with sequence 5, finding the plaintiff guilty of that offence (CB 262.26). This finding is the subject of challenge by ground 5 of the amended summons, and the detail of the Magistrate’s reasons on this sequence is dealt with further as part of the consideration of that ground of appeal.

  2. Having found that offence proven, the Magistrate raised the matters that were on the Form 1. The Magistrate indicated that his understanding was that, unless the plaintiff signed the form, it could not be taken into account on sentence. When the Magistrate indicated to counsel for the plaintiff that the plaintiff had “refused to sign” the form, counsel contested that, indicating that “what happened [on] the last occasion is, prior to the traversal or, I think it was just an oversight prior to the traversal”.

  3. The Magistrate also indicated that if the plaintiff did not sign the form, then, as there was “no plea, and unless they’re withdrawn, they’ll have to be heard”. Counsel for the plaintiff indicated that he could not give “an answer right now. It’s not a simple question… There might be complexities”, without elaborating on what they were or might be, and it was also suggested that there might be “prejudice in proceeding”, albeit that the suggested prejudice was not then identified.

The plaintiff’s appeal: the CAR Act and judicial review

Introduction

  1. The plaintiff, by grounds 1-4, seeks to challenge the decision of the Magistrate to refuse him leave to withdraw the guilty pleas and, by ground 5, the finding of guilt in connection with sequence 5.

  2. The amended summons fails to set out the precise basis for the appeal to this Court in relation to each of the grounds, other than by indicating that to “the extent that the appeal involves a question of fact or a question of mixed law and fact, leave be granted to appeal pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW)” (amended summons, relief claimed, par 2).

  3. From the written submissions filed, in connection with grounds 1-4, the appeal is brought pursuant to s 52(1) and 53(1) of the CAR Act or, as a fall-back, s 53(3) of the CAR Act (plaintiff’s submissions at [72]). In connection with ground 5, the plaintiff submitted that the appeal is brought pursuant to s 53(1) of the CAR Act (plaintiff’s submissions at [71]) but, from later submissions, it is apparent that the plaintiff pursues this ground of appeal pursuant to s 52(1) of the CAR Act.

  4. The plaintiff concurrently seeks judicial review under s 69 of the Supreme Court Act 1970 (NSW) directed to the first four grounds of appeal.

  5. I will set out the relevant statutory provisions from the CAR Act, and thereafter address a threshold issue that arises in connection with their engagement in the present case.

The CAR Act

  1. Section 52 of the CAR Act provides:

Appeals as of right

(1)  Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

(2)  An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

  1. By its terms, s 52(1) confers an appeal as of right upon a person convicted or sentenced and, relevant to what was argued here, permits an appeal “against the conviction… but only on a ground that involves a question of law alone”.

  2. Section 53 of the CAR Act provides:

Appeals requiring leave

(1)  Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves—

(a)  a question of fact, or

(b)  a question of mixed law and fact,

but only by leave of the Supreme Court.

(2)  Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

(3)  Any person against whom—

(a)  an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(b)  an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

(4)  An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.

  1. By its terms, s 53(1) imposes three restrictions on any appeal to this Court involving a question of fact or a question of mixed law and fact – first, the person must be convicted or sentenced by the Local Court; secondly, the appeal is against the conviction or sentence and limited to a ground that involves “a question of fact” or “a question of mixed law and fact”; and, thirdly, any appeal is by way of leave of the Court.

  2. Section 53(3)(b) of the CAR Act limits any appeal from an interlocutory order made by the Local Court in summary proceedings. In relation to appeals against orders of that kind, any appeal is only on a ground “that involves a question of law alone” and only by leave of the Court.

  3. The powers of the Court when determining an appeal against conviction are set out in s 55(1) of the CAR Act. In connection with any appeal against an interlocutory order (s 53(3)(b)), the powers of the Court are set out in s 55(3) of the CAR Act.

  4. As is apparent from the terms of ss 52(1) and 53(1), a – but not the sole – precondition to any appeal or any appeal by leave, is the requirement that the person “has been convicted”. Absent satisfaction of that precondition, the plaintiff’s appeal rights would be confined to those under s 53(3)(b).

  5. In relation to whether the plaintiff had been convicted in the Local Court following the pleas of guilty, the plaintiff (at least on appeal) adopted the position that he had been convicted, whereas the defendant argued that he had not been. I will next address this issue.

Whether the plaintiff was convicted

Introduction

  1. I have earlier set out the factual background in connection with the plaintiff’s pleas of guilty: see [8]-[10], above.

  2. Briefly, by way of summary, the pleas of guilty were made on 4 August 2022 in the following circumstances. At that time, the plaintiff was represented by counsel and, after requesting the Magistrate provide the plaintiff and the prosecution time to engage in “negotiations” in connection with what were described as “the fraud charges”, counsel later announced agreement to enter pleas of guilty to sequences 1, 2, 6, 7 and 8 and sequences 3, 9-19 inclusive and 21 would be placed upon a Form 1 in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  3. Neither party identified any relevant statutory provisions requiring consideration in the assessment of whether the plaintiff had been convicted for the purposes of ss 52(1) and 53(1) of the CAR Act. For completeness, I would merely observe that the term “conviction” is not defined in the CAR Act, albeit that it is given a specific meaning in the context of an application or an appeal in relation to proceedings under the Children (Criminal Proceedings) Act 1987 (NSW): s 3(2) of the CAR Act.

  4. The term “conviction” has no fixed meaning: the “question of what amounts to a conviction admits of no single, comprehensive answer” and the answer to the question is necessarily context, statutory and factual dependent: Maxwell v The Queen (1996) 184 CLR 501, 507; [1996] HCA 46 (‘Maxwell’). In Maxwell, it was observed (at 507) that:

[o]n the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.

  1. The plaintiff and defendant accepted that a plea of guilty, without more, did not amount to a conviction and, further, that in the present case, whether the plaintiff has been convicted or not is a question of fact and ultimately turns upon whether the Magistrate has acted consistently with there being a conviction: see Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 at [26] (‘Selkirk’), citing Griffiths v The Queen (1977) 137 CLR 293, 301 and 335; [1977] HCA 44 and Sayer-Jones v Director of Public Prosecutions (Supreme Court (NSW), Wilson J, 14 May 2019, unrep). Consistent with this analysis, in Maxwell, Toohey J observed that at common law, “conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination” and that there were “a number of ways in which a court may show acceptance of a guilty plea”, including by the judge “expressly indicat[ing] that the accused was convicted before making any order in relation to that conviction” or that there may be “implied acceptance, for instance, by proceeding to pass sentence”: at 520-521. 

Discussion and consideration

  1. The plaintiff submitted that there was “an ambiguity as to whether or not the applicant has been ‘convicted’ on the sequences he pleaded guilty to” (plaintiff’s submissions at [72]). Nevertheless, the plaintiff submitted that he “should be understood to have been ‘convicted’… in circumstances where they have been accepted by the Court” (plaintiff’s submissions at [74]). This was said to follow, the plaintiff argued, because the plea had been “accepted by the Court in the sense of rendering them final” (plaintiff’s submissions at [75]). The plaintiff submitted that, in the present case, the Magistrate “made plain that he has accepted the pleas of guilty and that he will proceed to sentence based on the pleas of guilty” (plaintiff’s submissions at [76]).

  2. It follows, upon the plaintiff’s argument, that the plaintiff’s entitlement to appeal to this Court is within s 52(1) of the CAR Act and addresses the first precondition to it – namely, that the plaintiff has been “convicted… by the Local Court” and, subject to satisfaction of the other two pre-conditions, an appeal will lie to this Court as of right. That finding – viz., that he has been “convicted” – would also entitle the plaintiff, subject to leave of the Court, to appeal against the conviction on a ground that involved a question of fact or a question of mixed law and fact: ss 53(1)(a) and (b) of the CAR Act.

  3. It is, in my view, important to note the stance adopted by the plaintiff in this Court in connection with this issue, is inconsistent with the stance that was adopted in the Local Court: at no point in connection with the application for leave to withdraw the pleas of guilty did the plaintiff suggest that he had been convicted. In fact, he adopted the contrary position – namely, that he had not been convicted. Further, again inconsistently with the position adopted on this issue by the plaintiff, a number of the written submissions in this Court were to the effect that the plaintiff had not been convicted. For example:

  1. The plaintiff submitted that the appeal to this Court was from a decision of a Magistrate refusing an application “prior to convictions having been entered to traverse [the plaintiff’s] pleas of guilty” (plaintiff’s submissions at [1]);

  2. The plaintiff submitted – both before the Magistrate and in this Court – that the “law applicable to an application to traverse a plea of guilty prior to conviction” was covered by the decision in White (plaintiff’s submissions at [9]); and

  3. The plaintiff submitted that the decision in White emphasised “a different approach to applications to traverse pleas of guilty when the application is made after a conviction is entered and when the application is made prior to conviction being entered” (plaintiff’s submissions at [22]).

  1. I do not accept the plaintiff’s submissions. In my view, the plaintiff was not convicted for the purposes of ss 52 and 53 of the CAR Act. My reasons for that finding are as follows.

  2. First, the plaintiff accepted that the Magistrate did not, in terms, convict the plaintiff or make an order directing entry of the convictions for the offences following the guilty pleas. Nor did the plaintiff identify any “order” of the Local Court, to that substantive effect, made against him.

  3. Secondly, as I have earlier noted, and inconsistently with what was argued by the plaintiff in this Court, the plaintiff approached the application for leave to withdraw his pleas of guilty before the Magistrate on the basis that he was not convicted. So too did the Magistrate. Thus, when making the application, the plaintiff made reference to the “law applicable to an application to traverse a plea of guilty prior to conviction” – said to be reflected in the decision in White – and, consistent with that stance, there was no suggestion by the plaintiff, in and during the course of submissions before the Magistrate, that he had been convicted: the entire argument merely rested upon the fact that the matter had “resolved by way of a plea of guilty to some charges particularly the fraud charges on the CAN”. I consider the way in which the matter was approached by the plaintiff, the prosecution and the Court to significantly undercut any suggestion that the plaintiff was convicted. In my view, it demonstrates that the parties and the Court accepted that the plaintiff had not been convicted following his plea.

  4. In this last respect, it should be noted that there was no suggestion that the approach adopted by the plaintiff through his counsel (or his legal representatives more generally) before the Magistrate was the product of error or inadvertence as opposed to a considered forensic stance.

  1. Thirdly, when dealing with the application for leave to withdraw the guilty plea in connection with sequence 4, again the plaintiff adopted the position that he had not been convicted (as did the prosecution and the Court) and, consistent with that approach, gave consideration to the law applicable to an application to traverse a plea of guilty made prior to conviction as set out in White – and, as earlier noted, the Magistrate granted leave to the plaintiff to withdraw the guilty plea. Again, I consider this to reinforce the acceptance by the parties and the Court that the plaintiff was not convicted.

  2. Fourthly, unlike sequence 5, there had not been a contested hearing and a finding that an offence had been proven. In that situation, one can readily arrive at the conclusion that an accused has been convicted, which were the circumstances in Selkirk.

  3. Fifthly, whilst the Magistrate did indicate that the plaintiff would be sentenced following the hearing, I do not regard that matter, in context – particularly the context of the substantive application to withdraw the guilty pleas – as decisive or to tell against the conclusion that I have reached. I would add that the plaintiff did not, specifically, draw attention to any remarks of the Magistrate in this respect. However, as it was anticipated that the hearing in connection with all offences would be completed at any resumed hearing, the Magistrate raised on 4 August 2022 whether “I should get a sentencing report” – but it is not altogether clear that that occurred because, later, all that the transcript records is the following:

HIS HONOUR: All right, well look, this is a bit of a mess here but THAT IS PART HEARD, THAT IS THE SENTENCING REPORT, BAIL TO CONTINUE, TRANSCRIPT. ALSO A TRANSCRIPT OF THAT SENTENCING, AND AN INTERPRETER.

  1. Sixthly, to the extent that statutory provisions deal with the effect of a guilty plea, they do not dictate, in my view, a contrary conclusion. (It should be added that none of these provisions to which reference will be made were drawn to the attention of the Magistrate in the course of, or indeed at any time after, the application to withdraw the guilty pleas).

  2. The relevant statutory provisions that deal with the making of a guilty plea are contained in the Criminal Procedure Act 1986 (NSW) (‘the CPA’). Chapter 4 of the CPA deals with ‘Summary procedure’ and the provisions within it apply to proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily: s 170(1) of the CPA. Chapter 4, Part 2 of the CPA deals with trial procedures, and applies to proceedings before the Local Court: s 170(2A)(a).

  3. Section 193 of the CPA deals with the procedure if an offence is admitted. That section provides:

193 Procedure if offence admitted

(1)  If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly.

(2)  This section does not apply if the court does not accept the accused person’s guilty plea.

  1. In relation to s 193(1), this section says nothing about the timing of the entry of that conviction or the making of “an order…against” a person, and neither the plaintiff nor defendant submitted that it did. Thus, there is no statutory provision that, in effect, results in (or deems) a conviction being entered forthwith following a person pleading guilty to an offence.

  2. It is, for completeness, worth observing that at no point did the plaintiff refer the Magistrate to s 207 of the CPA – a section that confers a power to set aside a conviction or order before sentence. That section provides:

207 Power to set aside conviction or order before sentence

(1)  An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.

(2)  The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.

  1. Of course, that this provision was not referred to is consistent with the approach taken in the Local Court – namely, that there had not been a conviction.

  2. It follows that, the plaintiff not having been convicted of the offences the subject of the guilty pleas, any appeal to this Court arising from the Magistrate’s refusal to grant leave to withdraw the guilty pleas is only pursuant to s 53(3)(b) of the CAR Act.

Characterisation of the order refusing leave to withdraw the guilty pleas

  1. In relation to an appeal under s 53(3)(b) of the CAR Act, the plaintiff had a “threshold” submission: the plaintiff submitted that there were “various authorities” where, in effect, it had been “assumed” that an appeal “in relation to a refusal of an application to withdraw a plea was an appeal pursuant to s 53(3)(b) of the CAR Act” (plaintiff’s submissions at [73]). The plaintiff’s submissions referred, in this respect, to the decisions in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 (‘Wong’) and Grant v Local Court of New South Wales [2015] NSWSC 356 (‘Grant’).

  2. The overall intent of this submission was not altogether clear, particularly as the plaintiff did not seek to argue that the decision refusing him leave to withdraw the guilty pleas was “final”. Logically – the submissions did not elaborate upon this matter – only two possible consequences would seem to follow from the plaintiff’s submission: the first is that, the point having been apparently assumed by these authorities, it falls upon this Court to undertake the task of characterising the nature of the order made by the Magistrate in connection with this issue from first principles; the second is that, if the conclusion is contrary to the “various authorities”, then the plaintiff would not be within s 53(3)(b) of the CAR Act and, given the conclusion that I have reached in connection with the appeals under ss 52(1) and 53(1), no appeal would lie to this Court (by leave or otherwise) for grounds 1-4 under the CAR Act.

  3. I am unable to accept the plaintiff’s submission on this topic. In my view, contrary to what was submitted, the decision to refuse an application to withdraw a plea is interlocutory and has been held as such by decisions of this Court and also by the Court of Criminal Appeal.

  4. Thus, in Wong, Howie J held that where a Magistrate refuses an application by an accused for leave to withdraw a guilty plea, the order refusing the leave sought was interlocutory and an appeal to this Court in respect of that order was within s 53(3) of the CAR Act: at [1]. The fact that, later, Howie J noted (at [10]) that there was “no dispute… that an application to permit a defendant to withdraw a plea of guilty was interlocutory in nature” does not detract from that earlier holding, in my view. Further, that was also the approach adopted by Johnson J in Grant, where his Honour held that, citing the decision in Wong, an “application to permit a person to withdraw a plea of guilty is interlocutory in nature” (at [49]). Separately, I would simply add that applications made to withdraw pleas are treated as, and have been held to be, interlocutory orders: R v Sewell [2001] NSWCCA 299 at [3]; R v Filimoehala (2003) 138 A Crim R 299; [2003] NSWCCA 37 at [34].

  5. Thus, I consider that the plaintiff’s appeal to this Court in connection with grounds 1-4 is within, and only within, s 53(3)(b) of the CAR Act. As I have already noted, that provision confines the appeal against the order to one “that involves a question of law alone” and, further, only by leave of the Court.

The requirement for leave

  1. Despite the requirement for leave in connection with any appeal under s 53 of the CAR Act, the plaintiff’s written submissions did not address this requirement, except for a general submission about leave to appeal involving mixed questions of law and fact or questions of fact and a brief reference to one matter in the plaintiff’s written reply submissions. Nor were they addressed in oral submissions. Rather, the grounds relied upon to support a grant of leave appear in the amended summons. Those grounds were generally expressed and did not distinguish between the grounds of appeal directed to the refusal of leave to withdraw the guilty pleas (grounds 1-4) and the ground directed to the plaintiff’s conviction for the offence under s 351A of the Crimes Act (ground 5).

  2. Four matters were raised to support a grant of leave – as follows: first, by reason of the “procedural and practical uncertainty” as to how the trial is to be completed, uncertainty that is said to derive from the fact that a number of the offences were placed onto a Form 1 (amended summons, par 11); secondly, it is said that the Magistrate “considered that it was appropriate and desirable that the convictions be appealed at the present stage” (amended summons, par 12); thirdly, it is said that the NSW Police “did not express any opposition to the desirability of an appeal against the convictions”; and, fourthly, absent the plaintiff being sentenced, the District Court “does not have jurisdiction to entertain an appeal in the present case” (amended summons, par 14).

  3. In relation to the requirement for leave, the relevant principles that govern the question of leave are well-established. The defendant submitted that leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12]. Although these were civil matters, the plaintiff did not contest their application in the present case.

  4. In Koschier v R [2024] NSWCCA 24 at [47] (‘Koschier’), it was noted that various tests have been formulated for the grant of leave to appeal in the context of interlocutory decisions in criminal proceedings (some citations omitted):

In DAO at [76], Allsop P spoke of the need for “demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice” (emphasis added). The then President also added that “leave can be refused even if an error of principle has been disclosed”. Other judges have spoken of the need to show “an error of principle apt to cause irregularity or injustice” (emphasis added)…

  1. It is also important to note the following further matters. The first is that, as emphasised in Koschier at [51], grounds of appeal that complain about the weight that was (or was not) given to a matter are

unlikely to attract the grant of leave to appeal. So also, criticism of the application of a correctly identified principle to the facts is unlikely to attract a grant of leave to appeal from an interlocutory decision unless it can be shown to have resulted in a reasonably clear injustice going beyond something that is merely arguable.

  1. The second is that the granting of leave is certainly not a mere formality, and the non-opposition to the grant of leave “does not mean that leave to appeal will necessarily be granted”: Koschier at [54].

  2. In my view, as I explain in what follows, the grounds identified as supporting the grant of leave, as set out in the amended summons, do not justify a grant of leave to appeal. Leave is therefore refused in connection with each ground so far as reliance is placed upon s 53(1) (ground 5) or s 53(3)(b) (grounds 1-4).

  3. The plaintiff’s first argument was that there was a measure of uncertainty that had arisen given that 13 charges were placed upon a Form 1 – which had yet to be signed. The Magistrate noted that the form had not been signed and when this was drawn to the attention of counsel for the plaintiff, the exchange (referred to at [35], above) took place. Put simply, the view expressed by the Magistrate, and confirmed by the prosecution, was that unless the plaintiff signed the Form 1, it cannot be taken into account on sentence with the consequence that those offences would “have to be heard”. The plaintiff’s counsel contested the notion that the plaintiff had “refused to sign it”, and suggested that the failure to sign the form “was just an oversight prior to the traversal”. In my view, the procedural uncertainty only arises from the plaintiff’s reluctance to indicate whether he wished to adhere to the position in connection with the Form 1 offences, or not. The Magistrate, in effect, left the position open, and for the election of the plaintiff. In my view, that is not any material procedural uncertainty, and it is not a factor that in my view justifies a grant of leave. Further, nothing was advanced to explain the materiality of that factor to any of the specific grounds of appeal. Whilst it forms a narrow part of ground 5, nothing was identified in connection with grounds 1-4.

  4. The plaintiff next argued that the Magistrate expressed a view about the utility of the appeal, as did the police prosecutor, and that supported a grant of leave. The plaintiff did not identify the basis upon which either of these views could be or should be considered by this Court on the question of leave. It is not altogether easy to accept that these “views” are relevant, just as much as “views”, by one or either of them, voiced against the grant of leave would be relevant. Ultimately, although I have considered the view of the Magistrate, I am not prepared to attach any significant weight to it. That is particularly the case where, in connection with ground 5, the view was no more than a remark that, in effect, the plaintiff should simply “throw that in” to any appeal. Further, I do not accept that the Magistrate thought an appeal was “appropriate”: it was the plaintiff’s counsel who communicated to the Magistrate that the plaintiff would be appealing the decision refusing to grant leave to withdraw the guilty pleas. In my view, on its own, or in conjunction with any of the other matters raised by the plaintiff, the “view” of the Magistrate does not justify a grant of leave.

  5. Further, the amended summons noted that the District Court “does not have jurisdiction to entertain an appeal…as there has been no sentence in relation to the convictions the subject of the appeal”. This statement does not accurately reflect the terms of s 11 (and 18) of the CAR Act. The plaintiff’s right to appeal to that Court turns upon his conviction or upon sentence. Once that happens, the plaintiff’s appeal rights crystallise. I therefore do not consider that the issue of the plaintiff’s rights of appeal to the District Court, as framed in the amended summons, justifies a grant of leave. Separately, the fact that there is, in connection with interlocutory orders, a circumscribed right of appeal only by leave does not, in and of itself, justify a grant of leave.

  6. Here, nothing was put by the plaintiff to suggest that there was any issue of principle, questions of general public importance or that there was an injustice going beyond being merely arguable, in line with the authorities referred to and discussed in [78]-[81], above. In relation to that last matter, to the extent that may be implicit in the plaintiff’s submissions, as I later explain, I do not consider that the Magistrate was in error in any of the ways argued by the plaintiff. Further, again as I later explain when dealing with ground 5, the way the hearing in connection with sequence 5 was conducted does not support a grant of leave. Additionally, in connection with some of the fallback arguments raised in connection with ground 5, I have concluded that, in substance, these raise no more than issues of fact and that characterisation provides a separate, and further, reason why leave is refused in connection with those matters.

A question of law alone

  1. The plaintiff’s appeal – whether pursuant to ss 52(1) and 53(1) (for ground 5) or s 53(3)(b) of the CAR Act (for grounds 1-4) – is against the conviction or order “but only on a ground that involves a question of law alone”. The defendant argued, in relation to each of the “questions of law alone” identified in the plaintiff’s written submissions directed to all grounds, that in substance they were not questions of that kind, but were, at best, questions of mixed law and fact. Given that contest, and the need for there to be a question of law alone in order for this Court to be seized of jurisdiction, it is necessary to address this pre-condition.

  2. In relation to a question of law alone, as that phrase appears in the above sections, the following five matters warrant emphasis. First, a mixed question of fact and law does not fall within the description of “question of law alone” (Attorney-General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; R v XHR [2012] NSWCCA 247 at [23] (‘XHR’)), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue (NSW) (2014) 96 ATR 875; [2014] NSWCA 378 at [6] (‘Ferella’); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (‘Schwartz’). Thus, if, upon proper analysis, the question is not one of law, “linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law”: Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97 at [53]; see also Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527. Thirdly, “the formulation ‘a question of law alone’ is more restrictive than the formulation ‘a question of law’. Furthermore, the terminology ‘question of law’ is not equivalent to ‘error of law’”: R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 at [74] (‘JS’); XHR at [21]. Fourthly, the grounds of appeal are required to explicitly identify – or as it is sometimes said identify “with precision” – the question of law raised: Part 51B, r 8 of the Supreme Court Rules 1970 (NSW) (‘SCR’); JS at [75]; Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Fifthly, the appeal against the conviction is confined to a ground that involves a question of law alone.

  3. As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v The Queen (1986) 161 CLR 278, 287:

… there is “a question of law alone” if the question of law can be stated and considered separately from the facts with which it may be connected in a given case.

  1. The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction “on a ground that involves a question of law alone”. That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome “in the sense that it could have affected the outcome”: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41]; Styles v Rowley [2023] NSWSC 1053 at [50]-[51]; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction “involves” the question of law alone.

Judicial review of the decision to refuse leave to withdraw the guilty plea

  1. The plaintiff also sought judicial review of the decision of the Magistrate refusing leave to withdraw the guilty plea. It is necessary to address whether, given the rights of appeal conferred upon a person such as the plaintiff by reason of the CAR Act, the plaintiff is permitted to pursue that collateral challenge.

  2. Before dealing with this issue, it should be noted that the amended summons contained no clear or precise identification of the grounds of review relied upon (or to differentiate between grounds relevant to any appeal and those relevant to an application for judicial review), nor did the amended summons identify the nature of the prerogative relief sought – the only order sought was that the decision be “set aside”. Given the conclusion I have reached, it is unnecessary to dwell upon or address the extent to which the amended summons was non-compliant with r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW).

  1. Given the prosecution was conducted on the basis earlier described, then it follows that the prosecution was relieved from proving the other elements of the offence, and the Magistrate was entitled to proceed on the basis that those elements were established. The plaintiff is bound by the conduct of his counsel in deciding what issues to contest: Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9]. It is not now open to the plaintiff to adopt an inconsistent position, or to recast the defence case, with a view to challenging the Magistrate’s acceptance of this particular element.

  2. It follows, in my view, that no question of law alone arises and no appeal lies as of right under s 52(1) of the CAR Act. Further, to the extent that the appeal is by leave, that leave is refused (in addition to the other matters dealt with earlier in these reasons) given the way the matter was conducted in the Local Court.

  3. Secondly, it is far from clear that the Magistrate used the Form 1 (which was not in evidence, nor was it marked for identification) in the way suggested by the plaintiff. A fair reading of the reasons, in my view, does not support the Magistrate using the Form 1 in the way argued. Rather, consistent with what the defendant argued, I consider that what the Magistrate was doing was describing the combination of factors that undercut the plaintiff’s attempted reliance upon the dishonesty proof element, contrary to the way that the plaintiff’s counsel had narrowed the issues. Thus, when the Magistrate is referring to the indications of guilt, the Magistrate is referring to the fraud offences: in light of the way the plaintiff ran the case, the plaintiff did not put the existence of the conduct giving rise to those offences in issue (being, in effect, the third element of the offence: see [182], above). What the Magistrate was emphasising not only in that part of the reasons relied upon by the plaintiff to demonstrate error but, critically, in the reasons of the Magistrate at CB 262.3-262.25, was that the prosecution was conducted in a particular way, that included acceptance of the elements in the fraud offences:

The elements of the offences, including dishonesty, have been admitted… The statement by counsel in Court that the [plaintiff] has accepted his guilt on the elements of the charges and the way in which the prosecution conducted its case thereafter prevents the [plaintiff] from submitting that there was no dishonesty. The dishonesty was accepted. The hearing proceeded on that basis…

  1. Thirdly, I accept, as the defendant also submitted, that putting to one side the fact that the plaintiff’s counsel narrowed the issues in the way earlier identified, the underlying facts in the dishonest scheme were established by the unchallenged evidence of Andy. The defendant pointed out that the evidence of Andy, which was accepted by the Magistrate, was that the plaintiff approached Andy to engage in the scheme where Andy would look and communicate the card sequence to the plaintiff, who would then bet on the hand in which those cards were displayed; that Andy went to the plaintiff’s house and the plaintiff showed him how to perform “the trick” and that he visited the plaintiff’s house to demonstrate how he was progressing with “the trick” and imperceptibly looking at the cards (training that the Magistrate found occurred “for months”: CB 261.44). The Magistrate found that training a dealer “for months to peak at cards and communicate them to a gambler and paying for the information…does not appear honest. I infer it was done to get a financial advantage in the… context of betting cards at a casino” (CB 261.44). Thus, as the defendant submitted, the underlying facts concerning the dishonest scheme were made out by the unchallenged evidence (and findings based upon that evidence) of Andy. Those findings, I would add, were not the subject of challenge by the plaintiff.

  2. In those circumstances, even if, contrary to my finding, the Form 1 was actually used, its use was (as the defendant submitted) immaterial and no error of law, or question of law alone, arises. It follows that no appeal lies under s 52(1) of the CAR Act.

  3. It follows, given my findings, that any appeal by leave pursuant to s 53(1) of the CAR Act, raising the substantially same issue, could not succeed. In those circumstances, together with an absence of any separate basis to grant leave, I refuse leave to appeal.

The challenge in relation to s 351A: the “criminal activity argument”

Introduction

  1. This part of the ground is what I have earlier described as the plaintiff’s “criminal activity argument”.

  2. From the plaintiff’s written submissions, the plaintiff’s complaint was that the Magistrate “erred in failing to appreciate the different kinds of intention and thus failed to deal with the question of whether what the [plaintiff] engaged Andy to do in fact amounted to a serious indictable offence” (plaintiff’s submissions at [136]). The argument was that the plaintiff recruited Andy to engage in an activity – provide him with a sequence of cards – “which could never in fact have amounted to the conduct alleged” (plaintiff’s submissions at [134]). That was said to follow because, as argued during submissions, whilst the dealer may be communicating cards to a player, and communicating cards to the player was cheating and not in accordance with the rules, that did not mean “that it was cheating that obtained the financial advantage” (T67.35). It followed that, notwithstanding the plaintiff accepted that there had been deception and dishonesty, there was no basis upon which the Magistrate could conclude that the plaintiff obtained a financial advantage with the consequence that there was not a “criminal activity” within ss 351A(1) and (3) of the Crimes Act.

  3. Before dealing with this argument, the following should be noted. Accepting that the ground of appeal is as framed in the plaintiff’s written submissions (see [172], above where it is set out), and not as it appears in the amended summons, in my view, that ground of appeal does not involve an appeal “against the conviction…but only on a ground that involves a question of law alone” within s 52(1). That is because the “question” is merely a broad question about the construction and operation of the section without any identifiable link to any consequential question or errors that are said to arise or could arise. It bears that character because there is no doubt that an element of the offence is that the criminal activity constitutes a serious indictable offence. Both parties accepted this, as did the Magistrate. It also bears that character because, given the way the case was conducted, no issue about that element arises.

  4. In my view, that is sufficient to dismiss the ground inasmuch as it seeks to invoke s 52(1) of the CAR Act. It was not suggested that, somehow, the broad “question” in the written submissions was otherwise within s 53(1) of the CAR Act.

  5. As I have noted, the substance of the plaintiff’s argument differed from the way the ground of appeal was framed in the written submissions. It was to the effect that, notwithstanding that there was cheating and dishonesty, there was no basis to find that the plaintiff obtained any financial advantage so as to constitute fraud and thus a criminal activity.

  6. In relation to this argument, the submissions of the plaintiff did not identify the question of law alone. To the extent the plaintiff argued that there was an error of construction (plaintiff’s submissions at [131]), I do not accept that submission. No question of construction arises. In my view, essentially as the defendant submitted, at its highest, what is sought to be argued by the plaintiff involves a mixed question of law and fact because it involves an assessment of the facts (PL at [26]): whether the conduct of Andy was such that financial advantage was obtained.

  7. It follows, therefore, that there is no appeal as of right under s 52(1) of the CAR Act and that any appeal to this Court is by leave only under s 53(1). In my view, leave should be refused for the following reasons.

  8. First, there is no reasonably arguable basis to uphold this ground given the way the matter was conducted in the Court below. Once it is accepted that the contest was narrowed in the way identified by the plaintiff’s counsel, the plaintiff’s conviction does not involve the substance of the “question”, or any question like it.

  9. Secondly, I accept, as the defendant submitted, the plaintiff did not identify any issue of principle or question of general public importance or even an injustice which is reasonably clear to justify a grant of leave. (It is unnecessary to deal with the defendant’s submission that was to the effect that it would be open to the plaintiff, following sentence, to appeal to the District Court on the basis of a full rehearing pursuant to ss 11 and 18 of the CAR Act (defendant’s submissions at [21]), and I express no view about the correctness of it).

  10. The plaintiff also sought to argue “whether as a question of mixed fact and law or fact” whether the conviction could be established by the Crown and, in this respect, the plaintiff’s argument appeared to involve two separate contentions, none of which appeared as a ground in the amended summons nor were they given any prominence in the written submissions. The first was that Andy’s “evidence” was that the conduct he engaged in was not in order to cheat, “but for reasons of superstition” – a submission that presumably was advanced to secure a factual finding to that effect or to undercut the finding made that the conduct was, in effect, cheating. The second was that, given the rules of Baccarat – which, it should be observed, were not in evidence – Andy’s evidence was “entirely consistent” with his activities being undertaken “for reasons of superstition rather than obtaining the particularised financial advantage” (plaintiff’s submissions at [138] and [139]).

  11. These submissions were not developed by any oral submissions. The appeal to this Court does not involve a rehearing but, in the present situation, is confined to an appeal against the conviction on a ground that involves a question of fact or a question of mixed law and fact, but only by leave: ss 53(1)(a) and (b) of the CAR Act.

  12. No submissions were directed to explaining how this involved a question of mixed law and fact. In my view, each argument could only involve issues of fact.

  13. The plaintiff’s first contention seeks, in effect, a favourable factual finding – that Andy was communicating the card sequence to the plaintiff for superstitious reasons only. However, no attempt was made to challenge the correctness of any of the other findings made by the Magistrate to the contrary effect (for example, those findings set out in the reasons of the Magistrate extracted at [184], above) nor did the plaintiff attempt to identify why, and if so in what way, those findings were erroneous of themselves, or as a step towards identifying a question of fact within s 53(1).

  14. The plaintiff’s second contention relates, in part, to the rules of Baccarat. Those rules were not in evidence (see the explanation for this at CB 262.7, referred to in [194], above). The plaintiff argued that, accepting that to be so, there was some reference to them on the Police Facts Sheet (which were not suggested to be in evidence) and also that the Court could take judicial notice of them “to some extent” (plaintiff’s submissions at [137]). Quite how this material could be used in the way suggested was not developed during submissions. I do not accept these arguments. The plaintiff also had a fallback argument – namely, if the rules could not be used, then the position is that the prosecution could not establish its case because the rules were essential to it. I do not accept this submission because the case was simply not conducted on this basis, as I have earlier explained (again, see the explanation for this referred to in [194], above). Further, the Magistrate drew the inference – which has not been, at least directly, challenged – that the plaintiff’s involvement in the scheme was “done to get a financial advantage in the context of betting cards at a casino” (CB 261.47).

  15. The plaintiff’s submissions for these last two arguments did not address why leave should be given in connection with these matters of fact. None of the accepted factors for a grant of leave, as set out earlier in these reasons, are present, in my view, and leave is refused. I would also add the following. As was noted by Beech-Jones J in JP v Director of Public Prosecutions (NSW) (2015) 256 A Crim R 447; [2015] NSWSC 1669 at [49], the structure of the CAR Act is such that appeals extending to matters of fact are conferred upon persons convicted in the Local Court to the District Court and “that that form of appeal is the primary means by which matters of fact said to affect a conviction are to be agitated”. It was, at least in part, a consequence of the existence of that right of appeal that Beech-Jones J considered the grant of leave in relation to a question of fact should be expected to be a “comparatively rare event”. These matters reinforce, in my view, why leave must be refused in relation to these matters.

  16. For those reasons, I dismiss this ground of appeal.

An extension of time

  1. The plaintiff sought an order “extending the time for instituting the present appeal pursuant to r 51B.6(2)(a) and/or r 51.5(5)” of the SCR.

  2. Neither party made any submissions about this matter. Some would have been useful.

  3. An appeal to this Court under Part 5 of the CAR Act is required to be instituted within 28 days after the material date: Pt 51B, r 6(1), SCR. The time fixed by this rule may be extended by the Court at any time: Pt 51B, r 6(2)(a). A summons for leave to appeal must be filed within 28 days after the material date: Pt 51B, r 5(3). The time fixed by this rule may be extended by the Court at any time: Pt 51B, r 5(5).

  4. The summons in this Court was filed on 28 July 2023. The material dates are the date that the Magistrate refused the plaintiff leave to withdraw his guilty pleas (being 24 March 2023) and the date the Magistrate delivered his reasons in connection with sequence 5 (being 30 June 2023: Pt 51B, r 3). The appeal in connection with sequence 5 was commenced within the time required, whereas the appeal in connection with the decision refusing the plaintiff leave to withdraw his guilty pleas is some three months out of time.

  5. Given there was no suggestion of any particular prejudice arising, I propose to grant the plaintiff an order extending time.

Costs

  1. The plaintiff, in the amended summons, specifically alleged that “an order for costs is not appropriate in the proceedings” and, consistent with this, the written submissions filed did not, in the event that the plaintiff was successful, seek an order for costs nor did the plaintiff accept that, in the event that the plaintiff was unsuccessful, a costs order should be made against him. Notwithstanding these matters, in the written submissions filed in reply, the plaintiff adopted a different position, seeking an order for costs (plaintiff’s reply submissions at [44]). The plaintiff did not address the change of position (other than, perhaps, suggesting that the original position was taken because it may have been anticipated that the appeal somehow or in some unspecified way involved a “consent” position: plaintiff’s reply submissions at [44]), or indeed make any oral submissions about costs.

  2. The defendant’s submissions did not address the question of costs.

  3. In those circumstances, I do not propose to make any order for costs in favour of the defendant, but will grant the defendant liberty to apply to vary that order to seek an order for costs.

Orders

  1. For the above reasons, I make the following orders:

  1. Extend the time for the plaintiff to file the summons in this Court until 29 July 2023.

  2. In relation to grounds 1-4 and, to the extent required, in relation to ground 5, refuse leave to appeal.

  3. Order the appeal, and the amended summons filed 4 March 2024, be dismissed.

  4. Make no order as to costs with the intent that each party is to bear his or its own costs.

  5. Grant the defendant liberty to seek an order that the plaintiff pay its costs of the proceedings in this Court, such liberty to be exercised by notice in writing to my Associate within seven days, with a view to directions being made in chambers and the question being determined on the papers.

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Decision last updated: 12 April 2024

Most Recent Citation
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Cases Cited

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Statutory Material Cited

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Heyward v Bishop [2015] ACTCA 58
Heyward v Bishop [2015] ACTCA 58
Attorney-General for the State of New South Wales v X [2000] NSWCA 199