Norvenska v Director of Public Prosecutions (Cth)

[2007] NSWCCA 158

New South Wales
Court of Criminal Appeal

CITATION:	Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
HEARING DATE(S):	6 June 2007
JUDGMENT DATE:	14 June 2007
JUDGMENT OF:	Basten JA at 1; Grove J at 41; Howie J at 42
DECISION:	1. Extend the time for filing the application for leave to appeal by 28 days; 2. Grant leave to appeal under s 5F of the Criminal Appeal Act; 3. Dismiss the appeal.
CATCHWORDS:	APPEAL – from interlocutory judgment – appeal under s 5F Criminal Appeal Act 1912 (NSW) - appeal by way of rehearing - CRIMINAL APPEAL - application to withdraw guilty plea – application before conviction - accused legally represented - misunderstanding of charge - principle of restraint
LEGISLATION CITED:	Courts Legislation Amendment Act 2000 (NSW), Sch 3 [1] Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5F, 6
CASES CITED:	Alexandroaia (1995) 81 A Crim R 286 Allesch v Maunz (2000) 203 CLR 172 BWM (1997) 91 A Crim R 260 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 CDJ v VAJ (1998) 197 CLR 172 Hura (2001) 121 A Crim R 472 House v The King (1936) 55 CLR 499 Liberti (1991) 55 A Crim R 120 Macleod v The Queen (2003) 214 CLR 230 Maxwell v The Queen (1995) 184 CLR 501 Peters v The Queen (1998) 192 CLR 493 Proudman v Dayman (1941) 67 CLR 536 R v Forde [1923] 2 KB 400 R v Hawker [2005] NSWCCA 118 R v Middap (1989) 43 A Crim R 362 R v Murphy [1965] VR 187 R v Parkes [2004] NSWCCA 377 Regina v Almirol [2006] NSWSC 898 Wilkes (2001) 122 A Crim R 310 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37
PARTIES:	Peter Klause Norvenska - Appellant Director of Public Prosecutions (Cth) - Respondent
FILE NUMBER(S):	CCA 2007/1071
COUNSEL:	T. Game SC - Appellant M. Buscombe - Respondent
SOLICITORS:	Steve O'Connor, Legal Aid Commission of New South Wales - Appellant Commonwealth Director of Public Prosecutions - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0924
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	9 March 2007

CCA 2007/1071
DC 05/11/0924

BASTEN JA
GROVE J
HOWIE J

14 June 2007

NORVENSKA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

The Applicant, Peter Klaus Norvenska, was the manager of a medical practice in Sydney. Between 1 January 1997 and 28 February 1998, he altered Medicare assignment forms in order to claim higher benefits from the Health Insurance Commission. He was charged with defrauding a public authority under the Commonwealth, pursuant to s 29D Crimes Act 1914 (Cth).

At the commencement of the trial on 27 March 2006, the Applicant was represented and pleaded not guilty. Two days later the proceedings were adjourned due to the service of additional material by the prosecution. An additional witness statement was subsequently served on the Applicant in support of the prosecution’s case. On the morning that the proceedings were to recommence, the Applicant had a meeting with his legal counsel, after which he changed his plea to guilty. Prior to the hearing on sentence, the Applicant indicated to his counsel that he wished to change his plea. The Applicant’s counsel withdrew. On 4 August, a notice of motion was filed seeking leave to withdraw the plea of guilty. On 20 October 2006 the motion was heard by Finnane DCJ, who refused the application.

The Applicant sought an extension of time in which to appeal from the refusal of leave to withdraw his plea of guilty. Before the Court of Criminal Appeal, the application for extension of time was heard concurrently with the application for leave to appeal and the substantive appeal.

The central issue on appeal was whether the Applicant had received inadequate legal advice as to the element of intention in the offence, with the result that his plea of guilty had been entered on the basis of a misunderstanding of the offence.

The Court, in granting the extension of time, granting leave to appeal and dismissing the appeal, held:

(per Basten JA, Grove and Howie JJ agreeing)

1. As counsel for the Director did not address the delay in filing the notice of motion and did not seek to resist a grant of leave, the extension of time and leave to appeal were granted: [10]

2. An appeal against an interlocutory judgment, pursuant to s 5F Criminal Appeal Act 1912 (NSW), is an appeal by way of rehearing and additional evidence may only be adduced with leave: [12]

Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission (2000) 203 CLR 194 applied; Alexandroaia (1995) 81 A Crim R 286; BWM (1997) 91 A Crim R 260 considered.

3. Where the accused is represented, a guilty plea may be withdrawn if it can be established that he or she was inappropriately advised and did not appreciate the nature of the charge or did not intend to admit guilt: [27]. The Applicant did not establish that he had received inappropriate legal advice or that he misunderstood the elements of the offence. Accordingly, the appeal should be dismissed: [39]

Maxwell v The Queen (1995) 184 CLR 501; R v Forde [1923] 2 KB 400; R v Murphy [1965] VR 187; Hura (2001) 121 A Crim R 472 at [32] and [33]; Wilkes (2001) 122 A Crim R 310; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 applied.

CCA 2007/1071
DC 05/11/0924

BASTEN JA
GROVE J
HOWIE J

14 June 2007

NORVENSKA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Judgment

1 BASTEN JA: On 27 March 2006 the applicant was put on trial before Finnane DCJ in the District Court on an indictment containing one charge. The charge alleged that the applicant -

“Between about 1 January 1997 and about 28 February 1998 at Sydney in the State of New South Wales did defraud a public authority under the Commonwealth, namely the Health Insurance Commission (commonly known as ‘Medicare’), by dishonest means that is, causing claims for assigned benefits to be submitted to and paid by Medicare in the names of medical practitioners who did not claim those benefits.”

2 The applicant entered a plea of not guilty and a trial commenced before a jury, which was ultimately discharged without delivering a verdict, on 29 March 2006. The proceedings were then adjourned to Monday, 3 April 2006. Late in the last week of March, the prosecution served a statement by a Ms Julieanne Hammill, a former Medicare investigator, who had taken steps to investigate a complaint in relation to the alleged alteration of items entered by a doctor on Medicare assignment forms at a location known as City Doctor’s Practice, at 70 Pitt Street, Sydney. The applicant was the manager of the medical practice. The thrust of Ms Hammill’s evidence was that she had met the applicant on 7 August 1997 to discuss changes in the itemised consultations billed through the practice. Her report of the meeting stated that the applicant “agreed that there appeared to a rather large anomaly between the number of hours the Doctor worked and the number of Item 54 consultations claimed”.

3 It will be necessary to return to the significance of this evidence in relation to the charge laid against the applicant, and in the context of other evidence.

4 Counsel then appearing for the applicant, Mr Maurice Gelbert, having received the statement of Ms Hammill took the view that it was new material “of particular significance” to the applicant’s case. He tried to contact the applicant over the weekend, but was unable to speak to him about the material until the applicant arrived in his chambers on the morning of Monday, 3 April. What transpired on that morning became the centre of attention later in the proceedings. Put shortly, following a conference with counsel and a telephone conversation with his solicitor, the applicant attended Court around midday and entered a plea of guilty. The trial judge stood the matter over for sentence to Friday, 19 May 2006 and directed that a pre-sentence report be obtained. Bail was continued.

5 In an affidavit dated 21 July 2006, the applicant stated that he had a further meeting with Mr Gelbert “a few weeks later” (that is a few weeks after Monday, 3 April) at which he stated that he would be changing his plea. The date of that meeting was not identified, but it is common ground that the meeting took place. On 17 May 2006 Mr Gelbert appeared before the trial judge and was granted leave to withdraw. On 22 May other counsel appeared for the applicant and advised the Court that he wished to seek leave to withdraw his plea of guilty. Finnane DCJ gave directions for the filing of a notice of motion and affidavit by 21 July 2006 and listed the motion for hearing on 4 August 2006. The application was eventually heard on 20 October 2006.

6 On 9 March 2007 his Honour delivered judgment rejecting the application: Judgment at [27].

7 On 27 April 2007 the applicant filed a notice seeking an extension of time within which to appeal from the refusal of leave to withdraw his plea of guilty. It is that application, an application for leave to appeal and the substantive question raised by the appeal, which are now before the Court.

Jurisdiction

8 There was a degree of uncertainty as to whether a conviction was entered on the plea of guilty. The transcript does not record that the applicant was convicted, nor was there any evidence that his conviction was noted on the back of the indictment. Had he been convicted, his right of appeal (subject to the extension of time) would have arisen under s 5 of the Criminal Appeal Act 1912 (NSW) and the exercise of this Court’s jurisdiction would be governed by s 6. If, on the other hand, the application was as stated in the notice of motion, an interlocutory application to withdraw a plea, the present appeal would be against an interlocutory judgment, pursuant to s 5F of the Criminal Appeal Act. As the trial judge appears to have proceeded on the motion on the basis that no conviction had been recorded, and as the parties are content to adopt the same course, the matter should be dealt with by this Court on the basis that it is an appeal against the refusal by the trial judge to exercise the discretionary power to grant leave to withdraw a plea.

9 At the hearing on 20 October 2006, the applicant relied upon his own evidence as to what had occurred on the morning of 3 April. The Director relied on affidavits supplied by the applicant’s former counsel (Mr Gelbert), his former solicitor (Mr Gregory Meakin) and a junior solicitor working with Mr Meakin (Mr David O’Connor); it was Mr O’Connor who bore the principal responsibility for preparation of the case with counsel and who attended the meeting in counsel’s chambers on the morning of 3 April. There was also an affidavit from Ms Drennan, then a solicitor with the Commonwealth Director of Public Prosecutions, Sydney office, who had the conduct and carriage of the matter on behalf of the Director. Apart from Ms Drennan, each of the witnesses gave oral evidence, as did another barrister, Ms Elizabeth Cohen. Ms Cohen gave evidence of a conversation with the applicant late on the afternoon of 3 April 2006.

10 In addition to the requirement for an extension of time within which to file the application, the applicant required leave to appeal: Criminal Appeal Act s 5F(3)(a). Counsel for the Director did not address the delay (which was in any event less than an additional 28 days) and did not seek to resist a grant of leave. Accordingly, the application should be considered on the basis that both orders should be made.

11 Section 5F(4) provides that an appeal under that section is to be determined on the evidence given in the proceedings to which the appeal relates, unless, by leave, fresh, additional or substituted evidence is adduced. Such provisions have, in cases involving civil jurisdiction, been relied upon in support of the conclusion that the nature of the appeal is by way of rehearing: see, eg, CDJ v VAJ (1998) 197 CLR 172 at [95]-[101] and Allesch v Maunz (2000) 203 CLR 172 at [22]. As Mr Game SC for the applicant noted, there is a suggestion in the judgment of Hunt CJ at CL in BWM (1997) 91 A Crim R 260 at 265-267, that an appeal pursuant to s 5F “is not by way of rehearing”: at p 265. However, neither Gleeson CJ nor Hidden J joined in his Honour’s comments in that respect. Hunt CJ at CL referred (at p 267) to Alexandroaia (1995) 81 A Crim R 286 at 290, as authority that an appeal pursuant to s 5F was not by way of rehearing. However, the discussion in Alexandroaia at p 290 is to the effect that an exercise of discretion is only reviewable on the grounds identified in House v The King (1936) 55 CLR 499 at 504-505. As Gleeson CJ noted in BWM, at p 261, that is not the same question. What Hunt CJ at CL appears to have meant by an appeal “by way of rehearing” is to be understood by reference to his summary of the applicant’s argument in BWM that “an appeal pursuant to s 5F is by way of rehearing, and that it is for this Court to determine for itself whether the Crown should have leave to withdraw its acceptance of the plea, without first concerning itself with the issue as to whether error had been demonstrated …”: pp 264-5.

12 His Honour also relied, by way of comparison with the terms of s 5F, on the express reference to a “rehearing” in s 5AA(3) of the Criminal Appeal Act. That subsection was repealed by the Courts Legislation Amendment Act 2000 (NSW), Schedule 3, [1]. The explanatory note to the amendment stated that it “removes the requirement that any such appeal is to be by way of a rehearing of the original evidence”. This, however, is not standard use of the terminology. As explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]-[14]:

“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of a hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.”

Accordingly, adopting the orthodox use of the terminology, an appeal pursuant to s 5F is an appeal by way of rehearing.

13 Such a description of the nature of the appeal does not provide a full indication of the powers of the Court and the limitations on those powers. In an appeal under s 5F, unlike an appeal against conviction following a jury trial, this Court may have the benefit of reasons given by the trial judge, as it did in this case. On the other hand, it does not have the benefit of having seen the witnesses give evidence and respond to cross-examination, which constrains the ability of the Court to interfere with findings as to credibility. In the present case, a significant feature of the applicant’s case for withdrawal of his plea was that he had been subjected to inappropriate pressure to change his plea to guilty, on the morning of 3 April. In his affidavit, he asserted that counsel had told him that he had to plead guilty, that his lawyers were shouting at him and that they would not defend him. These allegations were denied by each of the lawyers and his Honour concluded that no undue pressure had been placed upon him. That factual finding was, understandably, not challenged on appeal.

Inadequate or inappropriate legal advice

14 The focus of the challenge on the appeal was that the applicant had been given inadequate legal advice as to the critical element of intention in relation to the charge, with the result that he had entered a plea on the basis of a misunderstanding as to the law. This issue was not addressed, it was contended, in his Honour’s judgment.

15 At the hearing before Finnane DCJ, counsel then appearing for the applicant put the matter in the following terms (Tcpt, 20/10/06, p 50):

“At the end of the day, the question is whether or not you are satisfied that he didn’t understand that his knowledge or intention or the dishonest intent was an element of the offence, and as he has said, all he thought he had to do was fill out the documents and that was enough, that it was more or less an offence of absolute liability.
… There’s no discussion or no evidence that it was explained to him that what he was pleading guilty to was knowing that or that he had to have a dishonest intention, he had to know that it was dishonest to alter the statements.”

16 The reasons given by the trial judge for rejecting the application to withdraw the plea were not expansive, nor did they need to be. They dealt in substance with three issues raised on behalf of the applicant, which were whether he understood the charge to which he was pleading, whether undue pressure was placed on him to plead guilty and whether the failure to allow a further change of plea would result in a possible miscarriage of justice. As already noted, he rejected the claim of undue pressure as not having been established on the facts. In relation to the third element, he considered that there was no possible miscarriage of justice because the prosecution case was “overwhelming”: Judgment at [27]. This conclusion may be put to one side for the present.

17 In relation to the advice given, the trial judge accepted the evidence of Mr Gelbert: Judgment at [16]. He then stated at [17]:

“Mr Gelbert gave advice that the applicant should consider pleading guilty because, in his opinion, he was likely to be convicted, since he had filled in all the incorrect forms and he knew that to do so was wrong.”

He also stated that the applicant “made the choice [to plead] after appropriate advice”: at [19].

18 A two page document was prepared on 3 April 2006, headed “Instructions”. The document constituted an acknowledgment by the applicant that he had conferred with Mr Gelbert and Mr O’Connor, that he had received advice as to a plea of guilty and as to the consequences of such a plea on sentence.

19 The document referred to the applicant’s practice of changing the Medicare forms to ascribe a different item number because he had been advised that “the doctors were allocating the wrong item numbers to the service hence undercharging Medicare”. He also agreed that, during the period referred to in the indictment, the practice was running on an overdraft which was at all times near the limit. He further stated that in altering the vouchers, he adopted no “particular system” but that the alterations were done “on an ad hoc basis”. The document continued:

“I realize that my actions were without any particular foundation as to how to make the alterations. Even though I felt I was justified in doing what I did I realize that my actions were dishonest in that I was unable to justify the particular entitlement to the $133,563.35. Accordingly I admit my guilt to defraud the HIC (Medicare) by dishonest means.

During my conference with Maurice Gelbert he has strongly advised me that he feels that I have no prospects of success at trial. He advised me to plead guilty.”

20 In the course of the appeal, Mr Game SC sought to establish either that the document (and other evidence) demonstrated that wrong advice had been given, or that the advice had been misunderstood. Before considering those contentions, it is convenient to identify briefly the legal principles relevant to the determination of the application.

Legal principles: withdrawal of plea

21 A plea of guilty to a criminal charge is undoubtedly a serious matter. Nowadays it is accepted as a basic requirement of a fair system of criminal justice that, at least in serious cases, and wherever reasonably practicable, an accused person should have access to legal advice before entering a plea. Nevertheless, the bulk of cases are dealt with on a plea of guilty and it is likely that the system would cease to operate in a timely fashion, were that to change. No doubt many people plead guilty without legal advice.

22 Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client’s best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.

23 It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant “did not appreciate the nature of the charge or did not intend to admit he was guilty of it”: see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption.

24 The circumstances in which a plea of guilty may be withdrawn were considered in Maxwell v The Queen (1995) 184 CLR 501, but in a context where the primary issue was the right of the trial judge to reject a plea to a lesser offence than that charged. At 510-511, Dawson and McHugh JJ stated:

“An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.”

25 Read in context, it may be seen that these principles were expressed in relation to the power of the trial judge to reject a plea, rather than as to the circumstances in which an accused may withdraw a plea. The latter point was more directly addressed in the joint judgment of Gaudron and Gummow JJ at 531, in the following terms:

“There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.”

26 As may be seen from the summary of cases set out by Spigelman CJ in Hura (2001) 121 A Crim R 472 at [32] and [33] and Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [15], these principles have been stated from time to time in differing language. However, it is not necessary to address the variations in expression. Many of the cases involved an appeal from conviction based on a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea. In principle, no stricter test should be applied to an application before conviction: see R v Middap (1989) 43 A Crim R 362 at 364 (CCA, Vic) and R v Parkes [2004] NSWCCA 377 at [49] (Hodgson JA).

27 It is also common to note the “principles of restraint” identified by Kirby P (Grove and Newman JJ agreeing) in Liberti (1991) 55 A Crim R 120 at 122:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence … .”

In some circumstances, the circumspection may be based upon a concern that changes in plea may involve an attempt to manipulate the system to delay a feared conviction and sentence. However, no such issue arose in the present case and the matter should be approached on the basis that if the trial judge should have been satisfied by the applicant that he had been inappropriately advised and did not understand the charge, a miscarriage might well eventuate from an insistence on adherence to the plea.

28 A case in which a change of plea should have been allowed, as held by this Court, was Wilkes (2001) 122 A Crim R 310. In that case the appellant had pleaded guilty in the course of his trial, following the advice of counsel. The advice was given following what was seen to be damning evidence by the accused’s brother, stating that he had seen the accused hitting the deceased with a wooden paling. In summarising the circumstances, Wood CJ at CL, with whom Giles JA and Simpson J agreed stated at [35]:

“In his second affidavit, counsel [for the accused at the trial] said that upon reflection, he had become concerned that he had not given the appellant any real choice as to whether he should plead or not, and that the appellant had not given him any instructions acknowledging that he had committed the offence. Moreover, it had occurred to him that there were a number of matters he could have put to [the brother] in cross-examination … . He added that there was also an opportunity, which he now saw, for cross-examination the various civilian eyewitnesses, some of whose recollections may have been affected by the alcohol that they, and others present at the caravan park, appear to have been consuming that day.”

29 After considering other aspects of possible cross-examination, his Honour continued at [39] and [40]:

“It is evident from the terms of the exchange deposed to by counsel that the appellant did not acknowledge his guilt and, if anything, was protesting his innocence. The clear inferences that he was suggesting were that it may well have been his brother John Wilkes and Mr Payne who had been responsible for the killing, that they could be putting their heads together to attribute the blame to him … .
Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as has been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt.”

30 His Honour then considered the suggested forms of challenge to the prosecution witnesses and concluded that, whilst the prosecution case appeared to be relatively strong, it could not be said that “questions of the kind mentioned could not genuinely arise which should be determined by a jury”: at [46]. His Honour continued at [47]:

“This Court should, in my view, be reluctant to dismiss the confession by an experienced public defender that he made a mistake in his assessment of the merits of the case and in the advice given.”

The conviction was set aside and a new trial ordered.

31 More recently this Court upheld an appeal against conviction based on a plea of guilty in circumstances where the appellant pleaded on the basis of advice which was legally erroneous: R v Hawker [2005] NSWCCA 118 (Grove, Howie and Hall JJ). The Court was also referred to Regina v Almirol [2006] NSWSC 898 (James J) in which an application for leave to withdraw a plea was granted, despite the accused receiving proper advice from a solicitor, in the case of an accused who was from the Philippines, whose mother tongue was not English and who was not familiar with the legal system in New South Wales and in respect of a charge of murder as to which he had consistently maintained his innocence of involvement in the actual killing and where the basis of the plea was that “by [his] presence, words and encouragement” he had assisted the man who killed the deceased. Both of these cases turned on their own facts, rather than on any issue of principle.

Application of principles

32 On the appeal, Mr Game SC focused in the evidence of Mr Gelbert and in the statement of instructions which he prepared for the applicant to sign, upon references to a defence of honest and reasonable mistake of fact. Thus, in the instructions the following passage appeared:

“I acknowledge that that statement and the evidence of that witness would have been damning for any defence I proposed to mount about an honest belief that I had the right to alter the forms as I did.”

33 To similar effect, in his affidavit, Mr Gelbert had stated that in conference on 3 April:

“I explained to Mr Norvenska that I thought that this material was potentially damaging and could well serve to suggest that he had [been] put on notice for such improper alterations and that such warning by Ms Hamill [sic] had been ignored. Mr Norvenska in previous instructions had admitted to me that he had solely made out all alterations and accordingly this prior warning would serve to eliminate any defence of honest and reasonable mistake in relation to his present trial.”

This language was, as Mr Game contended, reminiscent of the defence discussed in Proudman v Dayman (1941) 67 CLR 536, as an exculpatory defence to a statutory offence which did not require a specific state of mind as an ingredient of the offence. Such an approach would have been inappropriate in this case, as it was necessary for the prosecution to establish that the applicant had intentionally created a situation in which the Commonwealth was deprived of its money in circumstances where the applicant knew that he had no entitlement to claim that money: see Peters v The Queen (1998) 192 CLR 493 at [30] (Toohey and Gaudron JJ), quoted with approval in Macleod v The Queen (2003) 214 CLR 230 at [35].

34 It was also suggested that, unless Mr Gelbert had misunderstood and misexplained the relevant elements of the offence in this way, he would not have thought the evidence of Ms Hammill to have great significance. He referred to the passage in Mr Gelbert’s evidence where he explained that matter in answer to a question from the trial judge (Tcpt, 20/10/06, p 6):

“HIS HONOUR: And his defence is … that he was doing what he thought he was … entitled to because he was just fixing up a situation where incompetent doctors weren’t charging properly for the amount of time they were spending?
A. Well more so your Honour, he … was proposing to present before the jury that he felt that he had the authority to make the alterations. That was his honest and reasonable belief, whereas apparently the way in which [Hammill] became involved in … the first investigation was that there was supposedly some complaint made by a doctor at the same practice about alterations.”

35 At the heart of this contention is the proposition that Mr Gelbert had given advice on the basis of a fundamental error as to the nature of the elements of the charge. An alternative view is that he was seeking to describe, as a practical matter, how the jury would be likely to view the evidence and what they might infer from the evidence likely to have been presented, as to the applicant’s state of mind. The question for the jury would have been whether the conduct of the applicant “was dishonest according to ordinary notions” which are to be decided “by the standards of ordinary, decent people”: Peters, 192 CLR 493 at [18]. The indictment pleaded defrauding Medicare “by dishonest means”. The dishonesty was said to lie in the seeking of benefits in the names of medical practitioners “who did not claim those benefits”. There was evidence that at least one doctor had not claimed such benefits and had not intended to. Ms Hammill’s evidence would suggest that the applicant was aware of that fact and yet continued to make alterations to the Medicare forms for several months after being made aware of that circumstance. There was also evidence of a memorandum circulated by the applicant to the practitioners headed “Future Survival Procedures in the Bulk-Billing Medical Industry”. It set out the financial problem faced by the practice which, it was said, “simply revolves around the basic fact that the income per session per hour is too small”.

36 Further, the relevant context included the fact that his solicitor, Mr Gregory Meakin, had had “numerous conferences, telephone discussions and meetings with [the applicant] and with his previous pro bono counsel, Ms Elizabeth Cohen”: Affidavit, 18 August 2006. Mr Meakin also noted:

“There was a particular conference in my office which lasted for some hours well prior to Counsel being briefed when the ‘defence’ was discussed. All aspects of my client’s instructions were examined in the course of that conference and I formed a view generally as to the prospects of success and the difficulties of the matter particularly – ‘the defence’.

37 Although Mr Gelbert was not the first counsel briefed in the matter he stated in his affidavit that he had been briefed ‘approximately two weeks’ before the commencement of the trial on 27 March 2006 and had ‘had numerous conferences with’ the applicant. Mr Meakin also gave evidence, on which he was not cross-examined, that at the time the plea was being considered, on the morning of 3 April, the following exchange occurred during his telephone conversation with the applicant:

“I recall that I said words to the effect:
‘Peter, you only plead guilty if you accept your [sic] guilty of all the elements of the charge or charges’.
He said words to the effect:-
‘Yes thank you. I understand.’
Throughout the course of this conversation I did not detect any stress or unusual emotion in Mr Norvenska’s voice.”

38 This material gives some context and content to the statement in the signed instructions that the applicant felt he was “justified” in doing what he did, but that he realised that his actions were “dishonest” in that he was “unable to justify the particular entitlement” the subject of the charge. This statement was in accordance with the elements of the charge and, to the extent that he said he signed the document without understanding it or because of pressure applied by his barrister, the trial judge rejected his evidence. It follows that, however the mental element may have been expressed in the evidence, it was a reasonable encapsulation in a phrase of what, as a factual matter, the evidence of the applicant would have had to establish. It said nothing about the legal test or the onus of proof. It was adequately acknowledged by the applicant in writing in appropriate terms, which both explained and justified the plea of guilty.

39 In these circumstances, the applicant has not established that he was ignorant of the elements of the offence nor that Mr Gelbert advised him on a mistaken basis as to the law. In truth, the legal elements were few and straightforward and guilt or innocence would have turned at a trial on the jury’s appreciation of the facts, and particularly the applicant’s state of mind. It has not been established that his Honour was in error in concluding that the applicant made a choice after receiving “appropriate advice” and that he was given “properly considered legal advice” by his lawyers, who “satisfied themselves that he understood this advice”. Accordingly, his Honour did not err in declining to grant leave to withdraw the plea of guilty.

40 The applicant should be granted an extension of time for a further 28 days so that the application was filed in a timely fashion. The applicant should be granted leave under s 5F of the Criminal Appeal Act. However, the appeal should be dismissed.

41 GROVE J: I agree with Basten JA.

42 HOWIE J: I agree with Basten JA.

**********