Piras v The Queen

Case [2006] NSWCCA 396

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Augusto Piras v Regina [2006]  NSWCCA 396

FILE NUMBER(S):
2006/1379

HEARING DATE(S):               5 December 2006

DECISION DATE:     13/12/2006

PARTIES:
Augusto Piras
Regina

JUDGMENT OF:       Sully J Howie J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          06/11/0022

LOWER COURT JUDICIAL OFFICER:     Williams DCJ

COUNSEL:
J. Dwyer - Crown
A. Howen - Applicant

SOLICITORS:
S. Kavanagh - Crown
Anderson Lawyers - Applicant

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

DECISION:
Applicant granted such extension of time as may be necessary in order to permit of his making the application which he lodged pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) on 14 June 2006 and subsequently amended
Leave to appeal refused and application for such leave dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1379

SULLY J
HOWIE J
HALL J

13 December 2006

Augusto PIRAS  v  REGINA

Judgment

SULLY J:

Introduction

  1. Before the Court is an application, brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW), of Mr. Augusto Piras, (“the applicant”). The applicant applies for leave to appeal against an interlocutory judgment of his Honour Judge Williams of the District Court. The nature of that judgment and the background to it are as follows.

  2. On 4 December 2002 the applicant was arrested and was charged with having supplied a commercial quantity of heroin. On 11 February 2004 he was committed for trial upon that charge. Committed with him for trial was one David Hampson. In due course the joint trial of the applicant and Mr. Hampson was fixed to commence on 15 June 2004.

  3. The joint trial duly commenced on that date. The presiding Judge was his Honour Judge Goldring. The applicant was then represented by Mr. David Price of counsel instructed by M/s Janet Leary. The applicant pleaded not guilty and a voir dire was thereupon commenced for the purpose of testing the admissibility in the Crown case of the contents of a number of video tapes which recorded certain aspects of surveillance operations that had been carried out in connection with the applicant and with Mr. Hampson.

  4. The playing of the surveillance tapes occupied some eight Court sitting days. Judge Goldring was moved to comment that in his Honour’s opinion, and based upon what his Honour made of the contents of the tapes, the Crown might well have difficulty in proving that the dealings which were shown in the tapes as having taken place between the applicant and his co-accused had involved a commercial quantity of heroin. His Honour’s observation led to a course of plea bargaining between the Crown and the accused’s then legal representative.

  5. The up-shot of that plea bargaining was that on 24 June 2004 the applicant pleaded guilty to having knowingly taken part in the supply of heroin. That plea having been taken, the applicant’s matter was stood over to 20 August 2004 for sentence; and a pre-sentence report was…

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Piras v The Queen [2006] NSWCCA 396
Case
[2006] NSWCCA 396
Decision Date

CaseChat Overview and Summary

In the matter of Piras v The Queen, the Court was asked to consider an application for an extension of time in relation to an appeal against conviction and sentence. The applicant, Augusto Piras, sought to appeal against a decision made by Judge Williams, who had convicted him of participating in the supply of heroin and sentenced him to a term of imprisonment. Piras argued that he had a reasonable apprehension of bias on the part of Judge Williams, and that he had been denied procedural fairness in the sentencing process. The Court was tasked with determining whether the application for an extension of time should be granted, and whether leave to appeal should be granted.

The Court considered the arguments put forward by both the applicant and the Crown. The applicant argued that there were discrepancies in the agreed statement of facts and the pre-sentence report, and that these discrepancies demonstrated that he had been pressured into accepting the facts. The Crown argued that the discrepancies were not significant, and that the applicant's admissions against interest were clear and unambiguous. The Court also considered the applicant's arguments regarding bias and procedural fairness.

The Court found that the application for an extension of time should be granted, as the applicant had established that he had a reasonable apprehension of bias on the part of Judge Williams. However, the Court found that the applicant had not established that he had been denied procedural fairness in the sentencing process. The Court also found that the applicant had not established that the ultimate judgment was tainted by bias or procedural unfairness. The Court held that the applicant had not demonstrated that there was good cause for a grant of leave to appeal.

The Court concluded that the application for leave to appeal should be refused, and that the application for an extension of time should be granted. The Court ordered that the applicant be granted such extension of time as may be necessary in order to permit of his making the application which he lodged pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) on 14 June 2006 and subsequently amended. The Court also ordered that leave to appeal be refused and that the application for such leave be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

His Honour was entitled, further, to take into account the agreed statement of facts which the applicant undoubtedly signed prior to the formal entering of his plea of guilty. That document reads:“R v PIRAS – AGREED STATEMENT OF FACTSCHARGED WITH: 1 Count of knowingly take part in the supply of Heroin.On or about 18 November 2002 the offender Augusto Piras was contacted by the co-accused, Mr. David Hampson who renewed an old acquaintance with him.Mr. Hampson told the offender that a person who had been supplying him with heroin was no longer able to do so and asked the offender to assist him in sourcing a new supply of heroin for him.At this time the offender was using heroin from time to time with his Defacto partner Ms Roberta Egan, who was suffering from terminal cancer. Ms Roberta Egan was present when the offender was arrested at his apartment in Bondi but has since passed away.After initially refusing to assist Hampson, the offender eventually agreed to assist him by contacting some people and sourcing some heroin on his behalf.During the period between 22 November 2002 and 3 December 2002 the offender used money given to him by David Hampson to purchase 2 grams of heroin on behalf of Mr. Hampson for an amount of $800.00 which he delivered to Mr. Hampson.Furthermore, in early December 2002 at the request of David Hampson, the offender sourced and delivered 28 grams of heroin to Hampson, using $9,000.00 given to him by Hampson.During this period and as a result of these two transactions, the offender received approximately $600.00 in cash payments for himself for sourcing and delivering the heroin to Hampson.The offender also kept a small amount of the drug on each occasion for his personal use.” In addition to the foregoing documents, his Honour had before him in evidence a pre-sentence report dated 20 August 2004. That report contains the following material:”Attitude to the OffenceRegarding the offence, Mr. Piras agreed with police facts and expressed regret in relation to his involvement in this matter. He was candid about his reasons for becoming involved in the offence and attributed his behaviour to his own, and his partner’s heroin addiction (at) the time. He reported that his partner used heroin for pain relief during her terminal illness, and that he was also using heroin as a way of coping with his own emotional stress. Mr. Piras indicated that he spent the profit he made from the offence to fund both his own and his partner’s addiction. He also indicated that some of the money was spent on general living expenses and medical bills.” These were, on their face, clear-cut admissions against interest made by the applicant. His Honour was entitled, in my respectful opinion, to have regard to them accordingly. The submissions of the Crown in connection with the present application put, and in my opinion correctly, that some of the things said on that occasion to the probation officer who was preparing the pre-sentence report do not appear in the statement of facts signed by the applicant. The Crown submits, and I agree, that it is open reasonably to infer that the reason for the discrepancy is that the applicant was telling the truth to the probation officer and was doing in that connection more than simply regurgitating agreed facts which he had been improperly pressured into accepting. Further and finally, his Honour made the following findings:“I found Mr. Piras to be an unconvincing witness and his affidavit contains many areas of exaggeration. It seems to me that the real reason for wanting to reverse his plea lies in the fact that he is now an illegal non-citizen and that there are realistic prospects that if convicted, whether or not he receives a prison sentence, he would be deported. He was taken into immigration detention at court on 20 August 2004 and is currently on a criminal justice visa. His concerns about this situation were forcefully expressed in his letter of 3 October 2004, which I have referred to above.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J (dissent)
I am, in the end result, unpersuaded that his Honour’s ultimate judgment was so tainted. It seems to me that a fair reading of the judgment shows that his Honour’s process of reasoning is, with respect, both careful and logical. The essential findings of fact made by his Honour were, in my view, reasonably open to be made by his Honour. It does not seem to me that a reasonably informed and fair-minded person would see the ultimate judgment as being little if anything more than a well crafted vindication of pre-judgment. To put the point another way, I am unpersuaded that there is available a reasonable inference that the final decision of his Honour as expressed in his published reasons shows that those reasons are not the result of an impartial and unprejudiced assessment of relevant considerations. In my opinion the applicant has not established Grounds 1 and 2.Conclusions and Orders In my opinion no good cause has been shown for a grant of leave to appeal against the decision of Judge Williams. I am, therefore, of the opinion that the Court should order:[1]that the applicant be granted such extension of time as may be necessary in order to permit of his making the application which he lodged pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) on 14 June 2006 and subsequently amended;[2]that leave to appeal be refused and that the application for such leave be dismissed. HOWIE J: I agree with Sully J. HALL J: I agree with Sully J.

Ratio Decidendi

Legal Principle Established

Established by:

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