R v Bartel
[2000] VSCA 92
•18 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 192 of 1998
| THE QUEEN |
| v |
| PAUL ANTHONY BARTEL |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 May 2000 | |
DATE OF JUDGMENT: | 18 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 92 | |
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Criminal Law – Appeal against conviction – Applicant had pleaded guilty in the County Court and later sought leave to withdraw that plea – Leave refused by County Court judge – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | In person |
PHILLIPS, C.J.:
Mr Bartel, as is the custom when a person is unrepresented by counsel, as you are, I will be speaking directly to you and I will be speaking on behalf of the Court. Understand?
APPLICANT:
Yes.
PHILLIPS, C.J.:
In these matters you were charged with two charges of making threats to kill police officers at the Shepparton County Court, and on 23 March 1998 you pleaded not guilty to the first charge on the charge sheet, which we call count 1, and guilty to the second charge on the charge sheet, which we call count 2. As a result of your plea of not guilty to count 1, the judge ordered that a verdict of not guilty be entered on the court record as to that count. A barrister called Mr Cordy addressed the judge on your behalf as to count 1, and at the conclusion of his remarks the judge adjourned the matter and remanded you in custody to have a psychiatric examination. An appointment was made for you to see a psychiatrist, a Mr Lester Walton, and Mr Walton did meet with you on 15 April but no examination took place because you told Mr Walton that you wanted to withdraw your plea of guilty.
In due course, back you came to the County Court and you were there on 2 June 1998 and again on 10 June 1998. In those proceedings, which were to decide if the judge would give you leave to withdraw your plea of guilty, you gave sworn evidence and were cross-examined, and so did Mr Cordy and so did the lady who was instructing Mr Cordy as a solicitor, Ms Stagg, and you had counsel there yourself, a Mr Maguire.
I am not going to go into the very considerable background to those proceedings, except it is important, because of what you said to the Court today, to mention that in 1997 a man named Browne made certain allegations against you, and it was arranged that he would have a tape-recorder secreted on him and he had a conversation with you. You later said to your solicitors, because the conversation was tape-recorded, that it was wrong for anyone to consider that you were actually making threats to kill in the conversation. What you were really talking about, you said, was a computer game.
When you gave your evidence in June, this is the substance of what you told the judge in the County Court. You said that on the day you pleaded guilty you had been represented at the Shepparton court by Mr Cordy, who was instructed by Ms Stagg. You said that they gave you advice, as to count 2, that the Crown case was a particularly strong one and you should plead guilty, but you said you did not accept that advice and you signed a piece of paper stating that you did not accept that advice. You told the judge that you informed these lawyers that you wanted to wait for a document that you were seeking to obtain and which you were expecting to have fairly soon, and that you told them that this document would assist you in your defence. You told the judge that, notwithstanding that, Mr Cordy persisted with his advice that you should plead guilty and he told you that there was a 95% chance you would be immediately released by the judge if you did plead guilty, on the basis of time that you had served. You told the judge there was never any mention of any possibility being raised by Mr Cordy that you might have to spend more time in custody pending a psychiatric report. You told the judge that you were subject to pressure from your lawyers and that eventually, against your will, you agreed to accept the plea negotiated - bargain, if you like, by which you were to plead guilty to count 2. You also told the judge that, although you did that, you believed your plea of guilty then made would not prevent you from re-opening the case later on, and that you always intended to do that when this document you thought was important would come to hand. You told the judge that you had that document, together with other documents. You presented them to the court and they were labelled Exhibit A. You told the judge that you were not guilty of the offence that you pleaded guilty to and that, on the contrary, you believed you had a good defence to that charge.
Mr Cordy came to the court as well and he gave evidence, as you had done, and so did Ms Stagg, and she had much the same account to tell to the judge as Mr Cordy had. What they told the judge was that they had had a conference, they said of about two hours, with you at the Shepparton court.
APPLICANT:
Fifteen minutes, Your Honour.
PHILLIPS, C.J.:
That was your account. They claimed two hours - right? And they accepted that prior to the conference, however long it was, it had been your intention to plead not guilty to both charges. They said that in the course of the conversation between you and them the tape-recording of the conversation between you and Browne was played and that you admitted it was your voice on the tape, but you said, "That discussion relates to a computer game". Mr Cordy told the judge that he informed you your defence was hopeless and he told the judge that the two of you discussed various options open to you and the strength of the Crown case. He accepted that he had told you there was a good chance of a "time served" sentence if you pleaded guilty, but he claimed to the judge that he gave you no guarantee of that, and that he had said to you that the Crown had said to him that they would be asking for a psychiatric report and so there was a possibility, if the court agreed, you might be kept in custody pending the psychiatric report. Mr Cordy also told the judge that because you had been what he called difficult, he had thought it prudent to obtain a written acknowledgment that you were going to plead guilty and that he got you to sign a document acknowledging that you would plead guilty. That document could not be produced to the court; no one seemed to be able to find it. But Mr Cordy denied that any pressure had been applied to you to plead guilty to the charge, and he said to the judge it was against his financial interests and also those of Ms Stagg if that course was followed because it would only be a short proceeding. But, he said, they thought it was in the best interests of you.
At the end of that and argument in the court, the judge gave his reasons, in which he set out the history of the matter and recited the evidence that had been given before him, just as I have done this afternoon. The judge then referred, in coming to his conclusion, to a decision of the Court of Criminal Appeal, which was the predecessor of this Court, in a case of R. v. Middap, which is reported at 43 Australian Criminal Reports 362. Then the judge came to his findings on the matters of fact, and I shall read them out to you. The judge said:
"I can find absolutely no reason to disbelieve Mr Cordy and Ms Stagg in their account of the events relevant to this matter. The flow of events, as related by them, is exactly along the lines I would expect and their account had the ring of truth about it.
I have no reason to believe that Bartel failed to understand the advice that was given. I have every reason to accept that Bartel agreed to the plea bargain presented, ie: Not guilty to Count 1 but guilty to Count 2. (Count 2 based as it was on the tape recorded conversation). Bartel is likely to have agreed to this arrangement in the hope but without guarantee of a "time served" sentence.
Despite the absence of the acknowledgment document referred to, I accept that it contained what Cordy and Stagg say it contained, which would be a natural precaution for them to require. It is hardly conceivable that Cordy and Stagg would go ahead with the plea of guilty in the face of a written and signed document rejecting their advice.
Accordingly, I do not accept Bartel on this. Nor do I accept his allegation of undue pressure nor of misleading advice.
3. In any event I do not consider there is any worthwhile defence to the Crown case on Count 2."
I am interpolating sections of what he said now, Mr Bartel. His Honour went on:
"I read the material contained in Exhibit A which was handed to me by Bartel in the course of the application. I consider there is nothing contained in it that is relevant or useful towards a defence to the charge."
He ended by saying:
"I do not consider it is appropriate to grant Bartels' application to change his plea. I see no danger of a miscarriage of justice thereby occurring."
I should tell you, Mr Bartel, what I have read from the last paragraph is consistent with the case of Middap that the judge had referred to earlier; and, as Mr Coghlan indicated when I asked him that question, there is no doubt that the case of Middap is relevant to the decision in your case here. It sets out principles of law which are to be applied.
APPLICANT:
Yes, Your Honour, but Mr Cordy and that didn't say anything about a psychiatric evaluation. There was no mention of psychiatric evaluation and I was told that I could re-open the case and do whatever I wanted with the case, Your Honour, and that's why I pleaded guilty. I did sign a document paper saying I disagreed with that, and Ms Stagg was talking to me on the way in to the court room and said, "You should plead guilty", and I turned round and said, "You can do what you like". I was under false imprisonment and I shouldn't have been there. What I'm trying to do is clear my name. I can't do anything else, there's black and white paper to prove what I'm talking about, and as you did read through the judge's decisions, he read through the paper work.
PHILLIPS, C.J.:
Thank you. Just take a seat. I have some more to explain to you. You remember I said to you when the case was called on that this is not a re-hearing. We have to examine what happened in the court below and see if error which would justify this Court intervening is disclosed.
Now, as to the facts part of the case, what really happened, the judge in the County Court had the benefit of seeing and hearing the witnesses. He saw you give your evidence, he heard you give your evidence, and the same thing with your lawyers. Now, Mr Bartel, it was for the judge there to decide who he believed and who he did not believe. We do not have that advantage. As it happened - I appreciate you disagree with it - the judge decided to accept the evidence given by your lawyers and he did not accept what you had to say on important points.
The judges have also looked at the ruling the judge gave and I have read a lot of it out today, and we have heard what Mr Coghlan said about it. We are unable to find in that any appealable error. We cannot see that the judge applied the wrong principles of law to the case, he appears to have recited them accurately, and in those circumstances we cannot assist in overturning this decision.
Now, Mr Bartel, I hope you appreciate I have gone, on behalf of the Court, into this in very considerable detail, and I have done that because I do not want, nor do the other judges want, you to go away from this place with a feeling that you have not got a fair go here. Do you understand that?
APPLICANT:
Yes.
PHILLIPS, C.J.:
So that is the decision of the Court. We cannot see any basis on which we could intervene in what Judge Williams did. Do you understand that?
APPLICANT:
Yes. In other words, you're not letting me re-open the case.
PHILLIPS, C.J.:
I shall ask you to acknowledge that you have had a fair go today to tell your side of it. Do you acknowledge that?
APPLICANT:
I acknowledge that, Your Honour, yes, but what about my belongings, Your Honour, what about my stuff that's been destroyed? What about my fruit contracts and three homes I lost? What about the false imprisonment? Justice hasn't been done, Your Honour. I understand what you've said, but justice has not been done.
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