Piras v The Queen - [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

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.
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.
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.
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.
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 requested.
There was a subsequent change in legal representation. Mr. David Price was replaced as counsel by Mr. Alexander Howen of counsel. M/s Leary ceased to act as instructing solicitor.
There ensued, after a number of adjournments of the proceedings on sentence, the giving by the applicant to Mr. Howen of instructions to make an application to change his plea from the plea of guilty to a plea of not guilty. Those instructions were given on 18 May 2005.
That application came on for hearing on 16 March 2006 before his Honour Judge Williams. Mr. Howen appeared for the applicant. The hearing occupied 16, 17 and 21 March; 7 April; and 12 May. On 18 May 2006 his Honour delivered a reserved judgment. His Honour refused an application, which had been made on 12 May, to reverse the applicant’s plea of guilty and made certain ancillary orders, the detail of which is not at present relevant. It is against that refusal to permit a change of plea that the applicant seeks leave to appeal.
The original application for leave to appeal was filed on 14 June 2006. It notified the following intended grounds of appeal:
“1.Bias shown by Williams DCJ throughout hearing of matter.
2.That his Honour failed to disqualify himself on the application of Augusto Piras.
3.His Honour erred in failing to apply the authorities relevant to the application of the reversal of plea.
4.The Appellant reserves his position to add to or amend the grounds of appeal in the event that Legal Aid is granted.”
There was filed with that section 5F application an application for extension of time. That application is signed by the applicant and it states as follows the reasons why the section 5F application had not been lodged within the prescribed time:
“I had Legal Aid granted to me for the matter in the District Court.
I have had to make an application for the grant of Legal Aid for this appeal.
As yet The Legal Aid commission has not made a decision.”
An amended section 5F application was subsequently lodged. Its purpose was to amplify the notified grounds of appeal. That was effected by adding to the existing ground 3 the following additional grounds:
“3aHis Honour erred in finding that there was no evidence that suggested there is a real question about the guilt of the appellant.
3bHis Honour’s finding that the appellant did not have a valid reason to reverse his plea of guilty could not be reasonably arrived at on the evidence.
3cHis Honour erred in making adverse findings of credit about the appellant by failing to take into account the evidence relevant to the credit of Mr. Price and Ms Leary. His Honour erred in failing to assess the credit of Mr. Price and Ms Leary.
3dHis Honour erred in failing to apply Jones v Dunkel to draw an adverse inference from the failure of the Crown to call the Crown Prosecutor who appeared before Judge Goldring, Mr. Bill Carney.
3eHis Honour erred in failing to find there had been a miscarriage of justice by reason of the incompetence of the appellant’s counsel.”
It will be convenient to deal in due course: first, with Ground 3 and its sub-grounds 3a through 3e; and secondly, Grounds 1 and 2. Before doing that, it is convenient to canvass some relevant matters of legal principle.
Relevant Legal Principles
The first principle which needs to be kept carefully in mind in the present case is that it is the applicant who bears throughout the burden of establishing on the probabilities a case that is appropriate to attract a grant of leave to appeal.
The second principle which needs to be borne carefully in mind is that the judgment against which the applicant now seeks leave to appeal was a discretionary judgment. That consideration brings into play principles which are usually explained by reference to the following passage taken from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 449 at 504, 505:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that , if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
That the foregoing principles do in fact apply to an application of the present kind is established clearly by the decision of this Court, (Herron ACJ, Sugarman and Nagle JJ), in R v Foley [1963] NSWR 1270. The joint judgment of the Court quotes the material in the above extract from House v The King, and says at 1271(50) – 1272(5), omitting references to authorities:
“There seems little doubt that a plea of guilty may be withdrawn with leave of the court at any time before sentence, but once sentence has been pronounced the plea cannot then be withdrawn. ………………… Whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the court and, of course, it goes without saying that this discretion will not be over-ruled by the Court of Criminal Appeal unless it is clear that the judge was ‘demonstrably wrong’ ……………..”
While dealing with Foley, it is relevant and useful to observe that in that case the Court upheld an appeal against conviction following a plea of guilty; but did so upon the basis, among others, that the Court of Criminal Appeal was now “…….. in a much better position to weigh up the facts relating to the exercise of discretion ……” than was the primary Judge. The Court proceeded:
“upon the question of a defence on the merits the Court had placed before it two affidavits of prospective witnesses, and on the question of the bona fides of the application to withdraw the plea it has the benefit of an affidavit by a solicitor of this Court. In regard to the former matter and having regard particularly to the evidence which has been placed before it on affidavit, it is of the opinion that there is in this case a defence which is other than frivolous or without merit nor is it an attempt to raise a mere technicality.” [1273(35) – (45)]
I draw attention to this particular paragraph in Foley because it is clear authority in this Court for the proposition that the present applicant, in seeking to persuade Judge Williams to permit him to reverse his plea of guilty, both could and should have stated clearly and frankly the substance of his proposed defence were he permitted to reverse his plea; and both could and should have put forward at least some evidence, independent of his own evidence, and which, if accepted, would have justified a finding that the application to reverse the plea of guilty was a bone fide application.
It is appropriate to advert, finally, to the following statements of principle taken from the judgment of Ipp AJA, Sperling J concurring and Hulme J dissenting but not in connection with the present point, in Reg v KCH [2001] NSWCCA 273:
“Improper pressure as the basis of overturning the guilty plea: the legal principles
31           The starting point in the inquiry is to acknowledge the circumspection or restraint with which an appellate court is required to approach an appeal grounded on the proposition that a plea of guilty which led to the conviction should be withdrawn. As Kirby P observed in Liberti (1991) 55 A Crim R 120 at 122:
“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: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”
See also Boag (1994) 73 A Crim R 35 and R v Wilkes [2001] NSWCCA 97.
32           An appellant will nevertheless be permitted to withdraw a plea of guilty where a miscarriage of justice would otherwise result. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.
33           A valid plea of guilty is one that is entered in the exercise of a free choice: Meissner v The Queen (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ. The plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501 at 511.
34           There have been several expressions of the requirements which have to be met before a court will allow a guilty plea brought about by imprudent and inappropriate advice given by the convicted person’s legal representatives to be withdrawn. In R v Wilkes Wood CJ at CL with whom Giles JA and Simpson J agreed said that an argument of this kind would hinge upon three considerations:
“(a)        whether the advice given to the appellant was or was not imprudent and inappropriate;
(b)          whether his plea was or was not attributable to a consciousness of guilt; and
(c)          whether the material before this Court shows that there is or is not a real question about his guilt.”
See also Kouroumalos [2002] NSWCCA 453; Whitehead [2000] NSWCCA 400; Favero [1999] NSWCCA 320; Ganderton (unreported, NSWCCA, 17 September 1998).”
Ground 3 and its Sub-Grounds 3a – 3e Inclusive
As to Ground 3 itself, I do not agree that Judge Williams failed “to apply the authorities relevant to the application of the reversal of plea”. It is true that his Honour did not pose for himself the three questions to which reference is made by Ipp AJA in his Honour’s paragraph 34: or more precisely, his Honour did not pose those three questions in the precise terms stated in that paragraph 34.
It seems to me, however, that his Honour did in fact deal with the substance of the matters to which those three questions pertain.
At page 15 of his Honour’s reasons the following is stated:
“In a serious criminal matter a barrister has a duty to his client to fully explain all the ramifications of the trial process. This must include telling an accused of the very real advantages to him if he pleads guilty. Indeed if counsel did not explain pleading guilty to a client he could well be professionally negligent. There is nothing wrong with counsel raising that topic with an accused and indeed it would be his duty to continue to raise it especially if his perception of the likely outcome for the accused seemed to be getting worse as time went by. I see nothing wrong with counsel setting out the situation to his client forcefully, if that becomes necessary, because his duty at all times is to obtain the best result for his client having regard to the facts. Such conduct on the part of counsel could not be regarded as a threat or amount to some other impropriety.”
I would say three things about what is there stated by his Honour. First, what is there said by his Honour, whatever else might be said about it, seems to me to address quite clearly the question whether the advice given to the applicant had been either or both imprudent and inappropriate. Secondly, I would add after the words “having regard to the facts” some such words as “………….. and due regard being had to counsel’s own professional obligations and responsibilities”. Subject to that addition I would respectfully agree with the general purport of what is stated by his Honour in the quoted paragraph. Thirdly, those observations of his Honour were not made in, so to speak, some kind of conceptual vacuum. His Honour had earlier observed, at page 9 of his reasons, and in my respectful opinion correctly so, that:
“What is of relevance is what happened in the days immediately leading up to the plea occurring. Mr. Piras had eight days of sitting and watching the video evidence unfold in which to consider his position. He wasn’t rushed from conference to court and a plea immediately entered. Despite that eight days and the almost two years that have elapsed since the plea was entered, nothing has been put before the court to explain or negative the evidence contained in the video material.”
His Honour had before him, and seems to me to have taken into account in the present context, the contents of written instructions given by the applicant to his counsel on 21 June 2004 and an agreed statement of facts actually signed by the applicant himself and witnessed by his solicitor. It will be necessary to say presently something more particular about the contents of those documents. It suffices to say for the moment that it is, in my opinion, crystal clear that his Honour considered whether there was any substance to an allegation that the advice which had led to the execution of those documents “was or was not imprudent and inappropriate”.
His Honour’s approach to the question whether the applicant’s plea of guilty “was or was not attributable to a consciousness of guilt” is strongly criticised in the submissions now put for the applicant. Once again, it will be necessary to say later herein something more particular about that aspect of the present application. The point to be made at the moment is that it is completely clear from a reading of his Honour’s published reasons that his Honour embarks, on page 12 of those reasons, upon an extensive canvass of the issue of “consciousness of guilt”. It is, in my opinion, equally clear that his Honour applied his mind specifically to the question whether the materials before his Honour showed “that there is or is not a real question about (the applicant’s) guilt”.
In my opinion Ground 3 has not been made good.
As to Ground 3a, his Honour was of the opinion, which I respectfully share, that certain answers given by the applicant in cross-examination on 7 April 2006 had real bearing upon this topic. The relevant evidence is as follows:
“Q.         Why were you at Hampson’s premises?
A.           Every time I went to Hampson’s premises, I never went there to supply drugs.
Q.           Why did you go there?
HOWEN:              Your Honour at this stage I object to it. Any answer to this question could lead to my client incriminating himself and he has a right to avoid self incrimination and it’s a matter for Mr. Piras of course but as his lawyer, I do need to intervene on that basis and it’s a matter for Mr. Piras.
HIS HONOUR:     Q.           Well Mr. Piras you don’t have to answer any question if you think it might provide evidence of you committing an offence, do you understand that?
A.           Yes.
Q.           SMITH                  Why did you go to Hampson’s premises?
A.           Well I ask your Honour to be excused to answer that question.
HIS HONOUR:     Yes okay.
SMITH: Q.           Do you agree that times that you attended Mr. Hampson’s premises, you counted large sums of money?
HOWEN:              Your Honour I object to that. I don’t know whether my learned friend has actually been through the exercise of looking at the tapes but there is no proper basis for that question I submit, having been through the tapes extensively myself, it cannot be put as a proposition. If it’s based on the tapes, it can’t be put as a proposition. If it’s not based on the tapes, it still needs to have a basis.
SMITH: I press the question.
HIS HONOUR:     Yes I’ll allow it.
SMITH: Q.           Mr. Piras do you agree that at times when you attended Mr. Hampson’s premises, you counted large sums of money?
A.           I ask your Honour to be excused to answer that question.
HIS HONOUR:     Yes.
SMITH                  Q            Will you agree Mr. Piras that during a period in late 2002 you used money given to you by David Hampson to obtain heroin for Mr. Hampson?
A.           I ask your Honour to be excused to answer this question.
HIS HONOUR:     Yes.
SMITH                  Q,           Would you agree with me Mr. Piras that during that period you purchased heroin for Mr. Hampson and delivered it to him?
A.           I ask your Honour to be excused to answer this question.
HIS HONOUR:     Yes.
SMITH: Q.           Would you agree with me Mr. Piras that during early December 2002 at the request of David Hampson you obtained and delivered a quantity of heroin to him?
A.           No.
Q.           I suggest to you that the real reason behind this application is that you don’t want to be deported, isn’t that the case?
A.           The reason of this application is because I didn’t commit what I been accused of.”

Of that evidence his Honour made these observations:
“Of course a person is entitled to decline to answer any question on the grounds that the answer might provide evidence of a criminal offence. However in an application such as this it is not, in my view, a sufficient approach to simply say in effect that “I am not guilty and wish to put the Crown to proof”. The applicant needs to establish that there is a real question about his guilt. That has just not occurred in this case. Indeed, for the purposes of this application only, I would have thought that the court could regard Mr. Piras declining to answer the Crown’s questions as some evidence of a lack of an innocent explanation for his behaviour depicted on the video tapes.”
In my respectful opinion these conclusions were amply open to his Honour.
His Honour went on to advert to the detail of some further evidence, the purpose of which seemed to be a suggestion that evidence which had been obtained as a result of the execution of a search warrant at the applicant’s place of residence should have been excluded because of some supposed defect in the execution of the warrant. His Honour observed in that connection:
“No attempt has been made to provide any evidence as to either the validity of the search warrant, the method of its execution or as to why the evidence gained as a result should, in the exercise of the court’s discretion, be excluded.”
In my respectful opinion these conclusions, also, were amply open to his Honour.
All of that being so, I am of the opinion that Ground 3a has not been made good.
As to Ground 3b, what has been said earlier in connection with Ground 3a is, in my view, equally applicable to Ground 3b. In addition, it was relevant for his Honour to have regard to the contents of the written instructions given by the applicant to his counsel on 21 June 2004. Those written instructions were in the following terms:
“1.          I have been charged with supplying a commercial quantity of heroin between 17 November and 5 December 2002. The allegation contends that during this period I was a person who regularly supplied/sold (1 ounce) packages of heroin (for money in the vicinity of $10,000.00 per ounce) to a person David HAMPSON, who then broke that heroin down into smaller packages (0.1 gram and 0.2 gram deals) and on sold them.
2.            I am aware that the Crown Prosecutor will now accept a plea of guilty to a charge of Supply Heroin (simplicita) in full satisfaction of the indictment and will withdraw the commercial quantity aspect of the indictment and (sic) as originally charged.
3.            I have been informed by MY barrister that:-

after viewing crown surveillance tape evidence depicting both myself, David Hampson and others; and
in the knowledge that a witness Ms K. MULLER will give evidence against me; combined with the money found in my possession at the time of my arrest; and
in the knowledge that there was 22 grams of heroin found in the possession of Mr. Hampson at the time of his arrest.
I am likely to be convicted of supplying a prohibited drug (heroin).
4.            Despite having this explained to me by my barrister, I maintain my innocence and I therefore instruct my solicitor Mrs Janet Leary and my Barrister Mr. David Price to defend the charge against me by putting the Crown to strict proof in their attempt to prove their case against me.
5.            It has been explained to me by my Barrister that if I am found guilty at trial then I will lose any benefit (reduction of penalty) of leniency that may have been afforded to me by entering a plea of guilty and I am if convicted I am likely to receive a substantially more lengthy term of imprisonment had I not entered a plea of guilty at this time to a reduced charge.
6.            In the full knowledge of these facts I maintain my innocence to the charge against me”

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 FACTS
CHARGED 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 Offence
Regarding 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.”
The letter dated 3 October 2004 is a lengthy one and it is not practicable to quote it here in its entirety. Suffice it to say that I have read and considered the contents of the letter and I am of the opinion that those contents amply warrant the inferences which his Honour drew from that letter. In my opinion it was well open to his Honour to find that the appellant did not have a valid reason to reverse his plea of guilty.
Ground 3b has not been, in my opinion, made good.
As to Ground 3c, I am of the opinion that a simple and fair reading of the whole of his Honour’s reasons cannot support this ground. His Honour saw and heard the applicant and did not accept the substance of the applicant’s evidence where it differed from the evidence of Mr. Price and M/s Leary. It seems to me to be plain from a reading of his Honour’s reasons that his Honour did assess the credit of Mr. Price and of M/s Leary and found them to be both truthful and reliable witnesses in connection with the matters of substance of which they respectively gave evidence.
In my opinion Ground 3c has not been made good.
As to Ground 3d, the short answer seems to me to be that those then representing the applicant both could and should have subpoenaed the Crown Prosecutor to attend the hearing before Judge Williams. The Crown Prosecutor having come to Court in answer to such a subpoena, it would have been proper for those then representing the applicant to have requested formally and in open Court that the Crown call the witness. Had the Crown refused to do so, then those representing the applicant could have called the witness and, if necessary, have applied for the witness to be cross-examined pursuant to section 38 of the Evidence Act 1995 (NSW). It is not controversial that none of those steps was taken. That being so, I do not agree that the primary Judge was obliged to draw the suggested inference.
In my opinion Ground 3d has not been made good.
As to Ground 3e, the real issue was not incompetence; the real issue tendered by the applicant was improper pressure. His Honour, having seen and heard the relevant witnesses, was not prepared to find that there had been any such improper pressure. I am unpersuaded that such a finding was not reasonably open to his Honour.
Before leaving the question of alleged incompetence, it is useful to note the following observations made by his Honour in his reasons:
“Counsel for Mr. Piras on this application has in my view approached this application from an incorrect point of view. A large amount of his cross examination of Mr. Price and Ms Leary was directed to their lack of preparation for the trial and what might be regarded as their incompetence. Whether or not the trial was properly prepared is not to the point in considering a plea entered after eight days of a voir dire during which the significant part of the Crown case was exposed. What is of relevance is what happened in the days immediately leading up to the plea occurring. Mr. Piras had eight days of sitting and watching the video evidence unfold in which to consider his position. He wasn’t rushed from conference to court and a plea immediately entered. Despite that eight days and the almost two years that have elapsed since the plea was entered, nothing has been put before the court to explain or negative the evidence contained in the video material.”
It is relevant to note in connection with the last three sentences in that quoted material that his Honour had earlier referred, (see page 3 of the Reasons), to the following matters, being matters which his Honour Judge Goldring thought fit to place on the Court record in connection with the applicant’s plea of guilty:
“Now, I’m making the following remarks for the benefit of the sentencing judge. Both Mr. Hampson and Mr. Piras have pleaded guilty to the charges that are now before the Court. They were originally charged, both of them, with the offence of supplying a commercial quantity of heroin. There has been a voir dire that’s lasted now for, I think, eight hearing days in the course of which a considerable part of the Crown case has been presented.
In the case of Mr. Piras, I ruled that the evidence was admissible and, in my view, it shows a strong Crown case in respect of the current changes although, in my view, it would have been difficult for a jury properly instructed to have convicted them of the offences of which they were originally charged. That may have been possible but it’s more likely, in my view, that if that matter had proceeded, the trial judge, whether it be me or someone else, would have directed a verdict of not guilty because the evidence did not establish beyond reasonable doubt that there was a commercial quantity of heroin involved.
However, that evidence did disclose that both these offenders were involved in a fairly large-scale operation which involved the selling of heroin. I will say no more about what I saw because I have not seen the agreed facts. But it is important, I think, that what I have said should be before the Court when they come to be sentenced.”
In my opinion Ground 3e has not been made good.
Grounds 1 and 2
The basal question can be stated conveniently in the terms employed by the High Court of Australia in Winningham v The Queen (1995) 69 ALJR 775:
“That test has been expressed in different ways but it requires the question to be asked whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter.”
The general principle thus stated is supplemented, usefully for present purposes, by the following observations in the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 571:
“In the course of an eloquent passage in his judgment in Reg v Watson; Ex parte Armstrong, Jacobs J expressed the view that judicial ‘silence’ is a ’counsel of perfection’ We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular ……….. witnesses could threaten the appearance of impartial justice.”
It thus appears, in my opinion, that the assessment now to be made of the conduct of the hearing before Judge Williams entails necessarily an assessment by this Court of matters of degree. As is so frequently the case in this Court, the Court must do its best to make the necessary assessment having before it only the relevant transcript, and being of necessity unfamiliar otherwise with the actual atmosphere of the hearing.
Those caveats in place, it seems to me that the following propositions can be gleaned fairly from the transcript.
First, his Honour clearly could not see the relevance of much of the questions of the applicant’s counsel, especially during the course of counsel’s cross-examination of Mr. Price and of M/s Leary. His Honour took, obviously, the view that the real issues which he was called upon to decide were few in number and fairly straight-forward in substance. That was, in my opinion, not at all an unreasonable point of view having regard to what has been earlier quoted herein from paragraph 34 of the judgment of Ipp AJA in KCH.
Secondly, his Honour became increasingly impatient with what he saw as a needlessly protracted canvassing of fine details which, as his Honour perceived the relevant issues before him for decision, were simply irrelevant.
Thirdly, that growing impatience, and as I perceive the reality, the growing frustration, of his Honour at his seeming inability to rein in what his Honour saw as peripheral and irrelevant questioning did lead, I think it must be said, to some fairly robust exchanges between his Honour and the applicant’s counsel; and some at least of those exchanges did entail, in my own view, some expressions of exasperation which might fairly be said to have been couched in unfortunately colloquial terms.
Fourthly, my own impression from a bare reading of the transcript, is that the cumulative effect of the foregoing considerations created an unpleasant and rather tense atmosphere in the courtroom. My impression, - but that is all it is, - is that as the hearing ground on its way, day after day for several days, both his Honour and the applicant’s counsel became progressively more exasperated with each other.
It can be allowed at once, with all due respect to all those concerned, that it was unfortunate, to say the very least, that such an atmosphere was permitted to develop. That is not, however, determinative of the particular questions that are now posed for the decision of this Court by Grounds 1 and 2. The essential question for this Court is whether his Honour’s ultimate decision about the application to change the plea manifests a miscarriage of justice because it is tainted by antecedent bias of the kind described in Winningham.
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.

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LAST UPDATED: 13/12/2006