Mao v Director of Public Prosecutions (NSW)

[2016] NSWSC 946

Supreme Court

New South Wales

Medium Neutral Citation:

Mao v DPP (NSW) [2016] NSWSC 946

Hearing dates:

8 June 2016

Date of orders:

08 July 2016

Decision date:

08 July 2016

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The appeal is dismissed.

 

(2) The decision of Magistrate Barko dated 23 November 2015 is affirmed.

 

(3) The summons dated 16 December 2015 is dismissed.

 (4) The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

Catchwords:

APPEAL – Local Court – criminal proceedings – interlocutory decision – refusal to grant leave to withdraw pleas of guilty – Magistrate did not err in considering no evidence to support pleas – appeal dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Grant v Local Court of New South Wales [2015] NSWSC 356
Ishac v R [2011] NSWCCA 117
Meissner v R [1995] HCA 41; 184 CLR 132
Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37
R v Boag (1994) 73 A Crim R 35
R v Davies (1993) 19 MVR 481
R v Hura [2001] NSWCCA 61; 121 A Crim R 472
R v Khan [2002] NSWCCA 521
R v Kouroumalos [2000] NSWCCA 453
R v Liberti (1991) 55 A Crim R 120
R v Parkes [2004] NSWCCA 377
R v Sagiv (1986) 22 A Crim R 73
R v Sewell [2001] NSWCCA 299
R v Van [2002] NSWCCA 148; 129 A Crim R 229
Rotner v R [2011] NSWCCA 207

Category:

Principal judgment

Parties:

Wenju Mao (Plaintiff)
Director of Public Prosecutions (NSW) (Defendant)

Representation:

Counsel:
A Parsons (Plaintiff)
JE Davidson (Defendant)

  Solicitors:
Ren Zhou Lawyers (Plaintiff)
Solicitor for Public Prosecutions (Defendant)

File Number(s):

2015/368910

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

2 December 2015

Before:

Michael Barko LCM

File Number(s):

2015/82618 – H 57861077

Judgment

1. HER HONOUR: This is an appeal from an interlocutory decision of the Local Court to refuse to grant leave to withdraw a plea of guilty pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

2. By summons filed 16 December 2015, the plaintiff seeks, firstly, an order that leave be granted to appeal from the whole of the decision below; secondly, an order in the nature of certiorari setting aside the decision of Magistrate Barko dated 23 November 2015 in refusing the application made by the plaintiff; thirdly, an order that the Local Court be directed to deal with the plaintiff’s application according to law; and fourthly, an order that leave be granted to the parties to approach the Court to complete any orders that are necessary to have the matter determined.

3. The plaintiff is Wenju Mao, who was the defendant in the Local Court proceedings. The defendant is the Director of Public Prosecutions (NSW) (“DPP”). The matter was prosecuted by the NSW Police in the Local Court. On 30 March 2016, the DPP took over as defendant in the appeal pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). The plaintiff relied upon the affidavit of his solicitor, Ren Zhou dated 2 May 2016. On 7 June 2016, a joint tender bundle was filed.

4. On 23 November 2015, his Honour Magistrate Barko (“the Magistrate”) dismissed the plaintiff’s application for leave to withdraw his plea of guilty.

Ground of appeal

5. The plaintiff appeals the whole of the decision of the Magistrate on the ground that the Magistrate made an error of law in that he did not grant leave to withdraw pleas of guilty in respect of charge sequence numbers 2 to 7, 9, 12, 13, 14, 16, 18 and 19 (“the 13 charges”) when there was no evidence available to convict the plaintiff.

Relevantly, s 53 of the Crimes (Appeal and Review) Act reads:

“53 Appeals requiring leave

…

(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.

…”

6. Under s 55(3) of the Crimes (Appeal and Review) Act, an appeal under s 53(3)(b) may be determined by setting aside the order and making such order as this Court sees fit, or by dismissing the appeal.

7. Insofar as appeals under s 53(3)(b) of the Crimes (Appeal and Review) Act against refusals to grant leave to change a plea are concerned, in Grant v Local Court of New South Wales [2015] NSWSC 356 (“Grant”), Johnson J stated (at [37]):

“It is for the Plaintiff to demonstrate error of law before either of the forms of relief sought may be granted in this case. This Court is not undertaking a rehearing of the application for leave to withdraw the plea of guilty.”

Background

8. These facts are not in dispute. On 18 March 2015, the plaintiff was arrested by Police at his residential premises and was transported to Redfern Police Station where he was taken into custody. He declined to be interviewed and was ultimately released on conditional bail.

9. The Police alleged that the plaintiff was connected to a criminal syndicate that conducted identity fraud.

10. On or about 19 March 2015, the proceedings were commenced by the Police filing and serving a total of 19 Court Attendance Notices naming the plaintiff as the offender. The charges set out in sequences numbered 1 and 8 allege contraventions of s 192K of the Crimes Act 1900 (NSW), sequences numbered 14, 18 and 19 allege contraventions of s 192E(1)(a) of the Crimes Act and the remaining 14 sequences allege contraventions of s 192E(1)(b) of the Crimes Act. I will set out the details of the charges later in this judgment.

11. On 20 April 2015, these proceedings came before the Downing Centre Local Court. The plaintiff appeared in person and was represented by Mr Phillip Green, solicitor. Pleas of “not guilty” were entered to all of the 19 charges and the proceedings were adjourned to enable the Police to serve upon the plaintiff a copy of their brief of evidence.

12. On 1 June 2015, the proceedings were next before the Local Court. On that occasion, Mr John Nathan, solicitor, appeared as agent for Mr Green on behalf of the plaintiff. By this time only a partial brief of evidence had been served upon the plaintiff. The Magistrate fixed the matter for hearing on 27 July 2015. The Magistrate ordered that the balance of the brief of evidence be served not less than 14 days prior to the hearing. The Court also ordered a Mandarin interpreter to assist the plaintiff at the hearing.

13. At some point after 1 June 2015, Mr Nathan was retained by the plaintiff as his legal representative.

14. On 27 July 2015, the proceedings came on for hearing before Magistrate Barko. Mr Nathan appeared for the plaintiff who was assisted on the day by a Mandarin interpreter. Sgt Stromquist appeared as Police prosecutor. When the matter was first mentioned Mr Nathan indicated that he wished to make an application that all of the charges be dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The Magistrate refused the application.

15. After the Magistrate refused the plaintiff’s s 32 application, Mr Nathan entered pleas of “guilty” to all 19 charges and made some preliminary submissions on penalty. The Magistrate recorded the pleas of guilty to all charges and adjourned the proceedings part heard for sentence on 17 September 2015.

16. On 17 September 2015, Sgt Alzaim appeared as Police prosecutor. The Court had received from Community Corrections a pre-sentence report of Ms Vivien Weir, Senior Community Corrections Officer, dated 16 September 2015. The Court also received a letter dated 17 September 2015 from the plaintiff stating that he was unfit to attend Court on the day, enclosing a medical certificate to that effect. He also stated that he had “disengaged” Mr Nathan. As a matter of courtesy Mr Nathan appeared and sought an adjournment of the plaintiff’s sentencing and he was granted leave to withdraw. The Magistrate adjourned the proceedings for sentence, part heard, to 29 September 2015.

17. On 29 September 2015, Sgt Coombs appeared as Police prosecutor. Mr Parsons of counsel appeared for the plaintiff. When the matter was mentioned Mr Parsons indicated that the plaintiff sought the Court’s leave to change the plaintiff’s pleas of guilty to not guilty in respect of the 13 charges (“the application”). The plaintiff relied on his affidavit sworn 24 September 2015. The application was adjourned to 23 November 2015 and the Magistrate ordered that any further evidence or written submissions were to be filed and served by 20 November 2015. He also ordered that the plaintiff and any of his witnesses in support of the application be available for cross examination.

18. On 23 November 2015, Sgt Gorman appeared as Police prosecutor and Mr Parsons again appeared for the plaintiff. The plaintiff relied on his affidavit sworn 24 September 2015. The Police prosecutor relied on the statement of police facts. The Magistrate heard oral evidence from the plaintiff, the former Mandarin interpreter, Mr Au, and the plaintiff’s former solicitor, Mr Nathan. Mr Parsons also provided the Magistrate with written submissions.

The charges

19. It is convenient that I now set out the charges against the plaintiff. According to the Police facts sheet, the plaintiff was allegedly involved in a criminal syndicate that obtained the details of members of the community and fraudulently altered their details to procure credit cards from financial institutions. The facts sheet alleges that the plaintiff applied for, activated and used two credit cards using false identity documents. The plaintiff was linked to the online applications via his name and internet ‘Cookies’ address.

20. Offence 1 alleges that on 24 September 2014, the plaintiff applied for a credit card (“CC1”). On 17 October 2014, the plaintiff attended a Westpac Bank branch to collect and activate CC1 using fraudulently altered identification documents. Offence 8 alleges that on 13 October 2014, the plaintiff applied for a credit card (“CC2”). On 24 October 2014, he attended a different Westpac Bank branch to collect and activate CC2 using identity documents that did not belong to him. Both of these occasions were captured on CCTV. Offences 2 to 7 allege that between 17 October 2014 and 22 October 2014 the plaintiff made a number of transactions using CC1 at various ATMs, withdrawing in total a sum of $11,050. Offences 9 to 19 allege that between 24 October 2014 and 31 October 2014, the plaintiff used CC2 to withdraw cash from various ATMs and to purchase luxury goods from retail stores. The total value of cash and goods acquired using CC2 was the sum of $12,769. The Magistrate noted (at J [15]) that the only photographic evidence implicating the defendant related to the charges to which he maintained pleas of guilty, ie, Charges 1, 8, 10, 11, 15 and 17. There is no photographic evidence identifying the plaintiff as the person using the cards in respect of the 13 charges that are the subject of this appeal.

The law

21. The relevant law in relation to entering and withdrawing guilty pleas is contained in ss 193 and 207 of the Criminal Procedure Act 1986 (NSW). Section 193 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.”

22. Section 207 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.”

The Magistrate’s decision

23. After setting out the procedural history and the details of the application, the Magistrate set out the relevant legislation. There is no dispute that the plaintiff was entitled to bring the application as the Magistrate had accepted the plaintiff’s pleas of guilty for the 19 charges before him on 27 July 2015.

24. At paragraphs [22] to [28] of the Magistrate’s reasons, his Honour set out the relevant case law in relation to changing pleas from guilty to not guilty. I will set out the relevant case law later in this judgment, but for present purposes it is important to note that the Magistrate referred to the following passage from R v Boag (1994) 73 A Crim R 35 (“Boag”) per Hunt CJ at CL (with McInerney and James JJ agreeing) (at 36):

“In stating the test to be applied in determining whether the applicant should be permitted to withdraw his plea of guilty, the judge correctly said that such a course should be allowed where it has been shown that a miscarriage of justice has occurred. The judge also correctly said that the applicant bore the onus of showing the existence of that miscarriage.”

25. The parties in this appeal agree that Boag is authority for the proposition that the plaintiff’s task in his application to the Magistrate to change his pleas from guilty to not guilty was to demonstrate that a miscarriage of justice had occurred.

Evidence given in the Local Court

26. The plaintiff, his interpreter, Mr Au, and his solicitor, Mr Nathan, each gave evidence and were cross examined at the hearing.

27. The Magistrate set out the evidence upon which the plaintiff relied in support of his application. It is as follows. The plaintiff admits he committed the offences in Charges 1 and 8. With respect to Charges 2 to 7, the plaintiff says he has “no recollection” of obtaining any funds from an ATM in the manner alleged in the statement of facts (Aff, [7]) and that after he obtained CC1, he “handed it to another male outside the bank. That male person was one of the persons in charge of the criminal operation.” (Aff, [8].) He states that he has “no recollection” of obtaining the cash from the ATMs and carrying out the transactions at the retail stores as alleged in charges, 9, 12, 13, 14, 16, 18 and 19. The plaintiff stated he was only shown five photographs by the police concerning five of the alleged 19 offences when he was arrested and that he had difficulty reading the facts sheet (J [31]; Aff, [16]-[17]).

28. The plaintiff’s evidence is that on 20 April 2015, at his first court appearance, he instructed Mr Green, solicitor, to mention the matters. No brief of evidence had been served and he did not discuss the issue of how he would plead with Mr Green. On 1 June 2015, the plaintiff met Mr Nathan, whom he subsequently retained as his legal representative. The plaintiff said that he recalled that he had a telephone conversation that morning with Mr Nathan, in which Mr Nathan referred to the fact that the plaintiff had admitted to doing “some of the things” and referred the plaintiff to Dr Diment, psychologist, for an application under the mental health law. On 27 July 2015, the plaintiff recalled being in court when this application was refused and that he told Mr Nathan he wished to plead guilty “but not to all, it’s not all”. He says that he intended to instruct Mr Nathan that he had not committed all of the offences and was only guilty of some. He says he did not have the assistance of the interpreter at this time (J [32]-[34]; Aff, [18]-[31]).

29. The defendant subsequently instructed Mr Parsons of counsel and, through a different interpreter, prepared and swore his affidavit (J [35]; Aff, [34]-[36]).

The plaintiff

30. In his oral evidence, the plaintiff maintained that he instructed his solicitor that he was not guilty of all of the offences. When asked by the Magistrate about the use of the phrase “no recollection” in his affidavit, the Magistrate observed that the plaintiff “appeared somewhat confused with my questioning but ultimately stated that he did not attend the three stores the subject of the charges set out in sequences numbered 14, 18 and 19.” (J [36].) The Magistrate made a finding that the plaintiff was not credible when using the phrase “no recollection”. The Magistrate also said that the plaintiff’s credibility was affected by his failure to say anything about giving the second credit card to someone who could have committed the offences in relation to that card as well as his failure to explain how he came to commit the offences he has maintained pleas of guilty to and how the other offences may have been committed by someone else (J [40]).

Mr Au

31. Mr Au, the interpreter, assisted the plaintiff during his initial conversations with Mr Green and Mr Nathan, solicitors. In his oral evidence he recalled that the plaintiff said he was involved in some of the charges but not all, although he did not overhear any discussion between the plaintiff and the solicitors concerning pleas of guilty or not guilty. The Magistrate considered the interpreter’s evidence in this respect to be “somewhat vague” (J [42]).

The plaintiff’s former solicitor

32. So far as Mr Nathan’s oral evidence is concerned, the Magistrate observed the following:

“He was adamant that his instructions had always been to enter pleas of guilty to all charges and that the instructions were given both by the Defendant himself and through the Interpreter. He denied that the Defendant has said that he would only plead guilty to some of the charges and stated that he would never have entered pleas [of] guilty to such offences unless he had the defendant’s instruction.”

(J [39].)

33. With respect to Mr Nathan’s credibility, the Magistrate recorded:

“There was no uncertainty or hesitation in the evidence given by or the presentation of Mr Nathan. He was adamant that he had received instructions from the Defendant to enter pleas of guilty to all charges. He is an experienced criminal practitioner who became somewhat indignant when it was suggested to him that he had entered pleas of guilty to charges without instruction. Mr Nathan presented in the most credible and reliable fashion compared to the other witnesses.”

(J [43].)

34. The Magistrate made a finding that the plaintiff had in fact instructed Mr Nathan to enter pleas of guilty to all of the 19 charges (J [44]). His Honour then set out the matters in favour of and the matters unfavourable to granting leave to the plaintiff to change his pleas from guilty to not guilty (J [45] & [46]). Relevantly, the Magistrate considered the following matters which “tend not to favour such leave being granted”:

“(j) When interviewed by Ms Vivien Weir, Senior Community Corrections Officer, prior to 16 September 2015 the Defendant is recorded as stating to Ms Weir that he “did not dispute the Police facts” and that he “was very sorry for what he had done”;

(k) When interviewed by Mr Diment for the purpose of his section 32 application the Defendant did not deny that he committed all of the offences and simply stated that “he felt very sorry about what he had done” and that “when I look back on it all now of course I regret about doing harm to society. Am going to pay this back too. In the end I only got about $1k and I have informed the Solicitor about this.”

…”

(J [46].)

35. The Magistrate concluded as follows:

“DETERMINATION:

47. I am satisfied that when the Defendant provided Mr Nathan with instructions to enter pleas of guilty to all charges he did so by reason of his consciousness of guilt understanding the nature of the charges brought against him and the quantity of the money and goods obtained. There is no suggestion by the Defendant that he was unduly influenced to enter the pleas of guilty. I infer that it was when the Defendant became aware of the “weaknesses” in the Police case as to identification evidence that he instructed Mr Parsons to seek to have his pleas of guilty reversed. I am satisfied that the Defendant's pleas of guilty were a true admission of guilt.

48. The Defendant has failed to satisfy me that there would be a miscarriage of justice should he not be permitted to change his pleas of guilty to the nominated charges.”

36. The main issue raised in this appeal is whether the Magistrate misunderstood the law in relation to the withdrawal of a guilty plea. It is convenient that I now refer to the relevant law.

Relevant case law

37. The Magistrate referred to extracts from the following cases: Boag at 36; R v Liberti (1991) 55 A Crim R 120 at 122 (“Liberti”); Meissner v R [1995] HCA 41; 184 CLR 132 at 157 (“Meissner”); R v Hura [2001] NSWCCA 61; 121 A Crim R 472 at [32] (“Hura”) and Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37 at [15], [16], [19] and [40] (“Wong”).

38. In the parties’ submissions they referred to a number of cases, some concerning applications to withdraw a plea after it is entered but before conviction and some on appeal after both conviction and sentence. In the present case, the plaintiff’s pleas of guilty had been entered but he had not yet been sentenced. In R v Parkes [2004] NSWCCA 377, Hodgson JA noted (at [49]) that “while more caution might be required where leave to withdraw a plea is sought after conviction and sentence, the principles that apply where the application is made before conviction and sentence are to similar effect”.

39. In R v Van [2002] NSWCCA 148; 129 A Crim R 229, James J (Hodgson JA and Kirby J agreeing) set out the relevant principles in relation to an appeal where an accused seeks to withdraw a plea. At [48] to [50] James J stated:

“[48] What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed: see Boag (1994) 73 A Crim R 35; Meissner (1995) 184 CLR 132; 80 A Crim R 308; Maxwell (1995) 184 CLR 501; 87 A Crim R 180; Ross (unreported, Court of Criminal Appeal, NSW, 20 February 1994); Liberti (1991) 55 A Crim R 120 and the cases referred to by Spigelman CJ in Hura (2001) 121 A Crim R 472 at 477-478 [32]-[33]. The principles have been conveniently summarised in the applicant's submissions taken from Hura as follows:

“• Where the appellant ‘did not appreciate the nature of the charge to which the plea was entered’: Ferrer-Esis (1991) 55 A Crim R 231 at 233.

• Where the plea was not ‘a free and voluntary confession’: Chiron [1980] 1 NSWLR 218 at 220D-E.

• The ‘plea was not really attributable to a genuine consciousness of guilt’: Murphy [1965] VR 187 at 191.

• Where there was ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’: Sagiv (at 80).

• Where the ‘plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’: Concotta (unreported, Court of Criminal Appeal, NSW, 1 November 1995).

• The ‘plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt’: Maxwell (at 511).

• If ‘the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt’: Davies (unreported, Court of Criminal Appeal, NSW, No 60418 of 1992, 16 December 1993); see also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320.”

[49] To the cases cited should be added reference to Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Wilkes (2001) 122 A Crim R 310 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; McLean (2001) 121 A Crim R 484 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of injustice; KCH (2001) 124 A Crim R 233 involving improper pressure by counsel and Bercheru [2001] NSWCCA 102 and Toro-Martinez (2000) 114 A Crim R 533.

[50] In Liberti (at 122), Kirby P referred to the Court's approach to a proposed change of plea or to an asserted want of understanding of what was involved in a plea of guilty as with “caution bordering on circumspection”, since such a plea in law is an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made: see Lee J in Sagiv. In Meissner, Brennan, Toohey and McHugh JJ said (at 141; 313):

“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the Court does act on such a plea, even if the person entering it is not indeed guilty of the offence.””

40. In Wong, after setting out [32] to [33] from Hura, Howie J stated:

“[16] The authorities referred to in the above passage show that the issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea of guilty to convict and sentence the defendant. I simply do not comprehend how a court can resolve that issue or determine that question without evidence from the person who entered the plea of guilty. It may well be the case that evidence from the legal representatives who acted for the defendant at the time the plea was entered might need to be placed before the court.”

41. The defendant also referred to Grant in which Johnson J at [36] similarly set out a summary of “well settled” principles governing an application to withdraw a plea of guilty.

42. In Wong, Howie J, on the question of whether an accused must in truth be guilty of the offence to which he or she has pleaded, stated:

“[33] A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea “is not in truth guilty of the offence”: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

“It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.””

43. In R v Sagiv (1986) 22 A Crim R 73, Lee J (McInerney and Campbell JJ agreeing), after citing a number of cases involving withdrawals of a plea of guilty, made the following observations at 80-81:

“The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.

It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence… and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposition of the proceedings.”

44. In Rotner v R [2011] NSWCCA 207 (“Rotner”) Simpson J (McClellan CJ at CL and Fullerton J agreeing) said at [49]:

“There are, in fact, two components to the test so stated – first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an “issuable” question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that create a doubt about his guilt, as well as circumstances that raise a doubt about his own perception.

45. In R v Sewell [2001] NSWCCA 299, Smart AJ (Heydon JA and Simpson J agreeing) at [39] stated:

“An accused seeking leave to withdraw a plea of guilty prior to conviction must establish a good and substantial reason for the Court taking that course. The cases reveal many specific examples of when an accused is permitted to withdraw his plea of guilty prior to conviction and I have mentioned some of them. The categories are not closed. The general statement that an accused must show that a miscarriage of justice will occur if he is not given leave to withdraw his plea of guilty or that an accused must show that it is in the interests of justice that leave be granted provide a useful principle against which to evaluate new categories or new factual situations.”

46. In Ishac v R [2011] NSWCCA 117, McColl JA (RS Hulme and Hislop JJ agreeing) stated at [30]:

“Any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. The question in a case where the applicant seeks to challenge a conviction following a plea of guilty is not guilt or innocence as such, but the integrity of the plea.”

47. The defendant submitted that the formulation of what must be shown in order for leave to be granted was stated in R v Kouroumalos [2000] NSWCCA 453 where Wood CJ at CL (Studdert and Whealy JJ agreeing) at [19] said:

“What is required for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question.”

48. This approach was endorsed by the Court of Criminal Appeal in Rotner by Simpson J at [47].

49. In R v Khan [2002] NSWCCA 521, Giles JA (Sully and Dowd JJ agreeing) at [28] stated:

“Putting aside cases where on the admitted facts the accused could not in law have been convicted of the offence charged, R v Davies also shows that the fact the accused can point to some doubt about his guilt, absent the plea of guilty, does not mean that leave to withdraw the plea will be granted.”

50. For completeness, the Magistrate also referred to the following passage from Wong at [40]:

“Nor would the fact that the plaintiff’s present legal representatives have instructions inconsistent with the plea of guilty be a reason to permit the withdrawal of the plea. If by his submission to the first Magistrate that he was not able to “put to the Court a plea of guilty” the plaintiff’s solicitor meant that he could not represent the plaintiff on a plea of guilty because of his instructions that the plaintiff was not guilty, the submission was with respect without foundation. It should be clear from what I have written above, that there is no difficulty, either ethically or otherwise, with a solicitor appearing for a defendant on a plea of guilty notwithstanding that the person has given instructions denying guilt. If it were otherwise, the defendant could avoid the consequences of a plea of guilty simply by changing legal representatives. Meissner makes it quite clear that there is nothing necessarily inconsistent in the fact that a person pleads guilty and yet asserts that he is innocent of the crime charged.”

51. Finally, in Sagiv, Lee J observed at 82:

“Where a person, having pleaded guilty, goes into the witness-box and seeks to put forward a version which ameliorates the effect of the charge from the point of view of criminality, it is always for the judge to evaluate that testimony and he may either reject it or accept it. There is no compulsion upon him to accept an assertion as to fact and allow a plea to be withdrawn merely because it can be said that that fact, if established, would result in an acquittal.”

Submissions

Plaintiff’s submissions

52. Counsel for the plaintiff submitted that the circumstances warranting the exercise of the discretion in favour of permitting a change of plea (constituting a miscarriage of justice) include an absence of evidence sufficient to convict the plaintiff and the Magistrate did not consider whether there was an absence of evidence sufficient to convict the plaintiff. The plaintiff referred to the following passage in Boag where Hunt CJ at CL (with McInerney and James JJ agreeing) stated at 37:

“A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty…

As Badgery-Parker J said in Davies [(unreported, Court of Criminal Appeal, NSW, 16 December 1993)] (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt… The requirement that a miscarriage of justice be demonstrated before leave is granted to withdraw a plea is well settled in the authorities to which I have referred.” (My emphasis added.)

53. The plaintiff submitted that the Magistrate failed to appreciate the relevance of this passage for the purpose of determining the question of whether to grant leave to the plaintiff to change his pleas and in so doing fell into error. According to counsel for the plaintiff, this was a case where there was “no evidence upon which [the plaintiff] could have been convicted” and that this was established by the evidence and the Magistrate’s observations at the hearing. The plaintiff pointed to the lack of photographic evidence of the 13 charges, which was confirmed at the hearing (T22.38-45, 23/11/2015), the plaintiff’s affidavit evidence in which he stated that he had “no recollection” of carrying out the relevant transactions and the fact that, although the Magistrate referred to Boag, his Honour did not refer to the passage “such a miscarriage will be established… if there was no evidence upon which he could have been convicted”. Counsel for the plaintiff submitted that by not taking this passage into account, his Honour erred in his understanding and application of the relevant law.

54. Counsel for the plaintiff referred to the following excerpts from the transcript in the Local Court:

“HIS HONOUR: Sergeant, do you know anything further about the brief?

PROSECUTOR: No, your Honour, no. The only way to find a resolution in respect to that is to call the informant. I have only just come into the brief this morning – into the matter this morning.

HIS HONOUR: Yes, well, they are serious matters, some of which carry on indictment ten year gaol terms, others seven year gaol terms. So it’s certainly something that has to be very closely considered. Do you have any prospects of getting the information here today or no prospects at all?

PROSECUTOR: I could try, your Honour. I give an undertaking to try and get him here today. I don’t even know if he’s on.

...

HIS HONOUR: … So look, what I’ll do, Mr Parson – I’m going to stand this for the moment to allow Sergeant Gorman – who at the moment of course is on the higher ground, I would have thought – to see what enquiries he can make about the other film. And it may well be your client – if he has an opportunity and there is other film, he has an opportunity of seeing it. It may refresh his memory.

…

PARSONS: I just notice there is a schedule of items that were served.

HIS HONOUR: Yes.

PARSONS: Now I note that it doesn’t include any identification evidence from any of the three stores. So his sworn evidence seems to be that he’s categoric that he didn’t commit any of the offences as they apply to the three stores. So there is no identification evidence, whether it be eye witness or even evidence in terms of the transaction taking place from any of the employees of those stores.

HIS HONOUR: Are there statements from them?

PARSONS: No.

HIS HONOUR: At all?

PARSONS: No, there’s none.

HIS HONOUR: That’s what I’m saying. The police couldn’t prove a thing without it.

PARSONS: There’s a DVD and a search conducted at his house. And that appears to be it. The only other things that were forming part of the brief of evidence were the police officer’s statements. I’ll just let my friend confirm what I’m saying.

HIS HONOUR: You see, the informant may well – and this is of course a matter for police if they want to prove it strictly. But the informant may well say, “I got a telephone call from Mr Nathan. He said, ‘Call off the troops, don’t provide any further evidence because I have certain instructions.’” And it may well be that he still had those matters outstanding. I don’t know. Anyway, make those enquiries and see how we go. If it can be taken no further today, then I will hand down a decision at 3.45. If it can be taken down further, we may have to adjourn it. All right. I’ll just stand the matter down in the list til 3.45 and if we can discern these issues earlier, let me know.

MATTER STOOD IN LIST

HIS HONOUR: Yes. Any developments?

PROSECUTOR: There have been, your Honour. I contacted the informant during the lunch adjournment, and he indicated that that was the entirety of the brief, what has been served. And I asked, “Was there any video of the ATMs? And he said, “No.””

(T19.50; T20.1-12; T20.32-36; T21.47-50; T22.1-41, 23/11/15.)

55. Counsel for the plaintiff submitted that this exchange demonstrates that the Magistrate recognised there was an absence of evidence upon which the plaintiff could be convicted.

Defendant’s submissions

56. Counsel for the defendant submitted that the Magistrate applied well established principles to the facts of the present case on the evidence before him and that the plaintiff has not made out any error of law. While the Magistrate did not specifically refer to the passage in Boag (at 37), counsel for the defendant says that that passage was referred to in the plaintiff’s written submissions handed to the Magistrate (Ex A in this Court). Counsel for the defendant also submitted that the plaintiff made oral submissions to the Magistrate to the effect that references to the plaintiff’s use of the relevant cards in the police facts sheet were based on inferences and that there was no evidence to support such inferences and that the Magistrate’s enquiries to the prosecutor to contact the informant demonstrated his understanding of the plaintiff’s submission.

56. According to counsel for the defendant, the Magistrate’s reasons for decision show his understanding that the critical issue was the integrity of the plaintiff’s plea. The defendant accepted that the integrity of a plea may be challenged, as in R v Davies (1993) 19 MVR 481, where it is entered by a person with “no recollection” of committing the offences, who is not in possession of all the facts and who did not entertain a genuine consciousness of guilt. However, counsel for the defendant submitted that this case is distinguishable from Davies, insofar as the Magistrate made findings that the plaintiff was in possession of the entire brief at the time the pleas were entered and he understood the nature of the charges against him (J [46], [47]). The Magistrate found the plaintiff not to be credible when using the phrase “no recollection” and his Honour accepted Mr Nathan’s evidence that his instructions at all times had been to plead guilty to all charges. The defendant also submitted that the Magistrate had regard to the plaintiff’s interview for the purpose of a pre-sentence report in which he was recorded as stating that he did not dispute the police facts. As well, the psychologist who interviewed him for the purposes of his s 32 application recorded that the plaintiff said he felt sorry about what he had done, that he felt regret and that he would pay back the money he had gained (J [46(j)-(k)]).

57. Counsel for the defendant submitted that the Magistrate found that the plaintiff’s pleas were a true admission of guilt and that the plaintiff had instructed his former solicitor to enter them by reason of his consciousness of guilt (J [47]). While the Magistrate did not make a specific finding that there was no evidence in relation to any of the offences charged in respect of which the plaintiff sought to withdraw his pleas of guilty to the 13 charges, he did not err in law in failing to make such a finding, in light of the other findings he made as to the integrity of the pleas. Counsel for the defendant drew this Court’s attention to the fact that the plaintiff did not put the police brief with which he had been served into evidence to enable the Magistrate to assess its contents.

58. Finally, counsel for the defendant submitted that the Magistrate applied appropriate principles of law in refusing to grant leave to withdraw the plaintiff’s pleas by firstly, making factual findings on the evidence before him and being satisfied on those facts that the pleas were entered with a genuine consciousness of guilt; and secondly, the plaintiff had an understanding of the nature of the charges; and finally, he concluded that there would be no miscarriage were the plaintiff not permitted to withdraw his pleas.

Consideration

60. The majority of cases referred to by the Magistrate and this Court in this judgment on the topic of whether a plea of guilty can be withdrawn emphasise the importance of an assessment of the integrity of the plaintiff’s plea by reference to the circumstances in which it was entered. His Honour had the benefit of submissions from the plaintiff that identified the passage in Boag (at 37) which states that a miscarriage of justice will occur when an accused has entered pleas of guilty in circumstances where there is no evidence upon which the accused could have been convicted. This is the only Court of Criminal Appeal decision drawn to this Court’s attention that states that a miscarriage of justice will occur on this basis. The Magistrate made no such finding in relation to the plaintiff because, as he observed, the plaintiff had made admissions consistent with guilt to both Dr Diment, psychiatrist, for the purposes of his s 32 application, and Ms Weir, Senior Community Corrections Officer, for the purposes of a pre-sentence report, both of which he took into account at [46(j) & (k)] of his reasons. In other words, his Honour was satisfied that there was evidence available in respect of the 13 charges upon which the plaintiff could have been convicted. In these circumstances it would have been contradictory and wrong if his Honour expressed the view that there was no evidence available to convict the plaintiff. In my view, the Magistrate did not make an error of law. The result is that the appeal is dismissed. The decision of Magistrate Barko dated 23 November 2015 is affirmed.

Costs

61. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

The Court orders that:

(1)   The appeal is dismissed.

(2)   The decision of Magistrate Barko dated 23 November 2015 is affirmed.

(3)   The summons dated 16 December 2015 is dismissed.

(4)   The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

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Decision last updated: 08 July 2016