R v Boyle
[2012] ACTSC 69
•May 11, 2012
R v MICHAEL SHANE BOYLE
[2012] ACTSC 69 (11 May 2012)
CRIMINAL LAW – application to withdraw plea of guilty – further evidence put before the Court – no grounds supporting withdrawal of plea satisfied – the application is refused
Hura (2001) 121 A Crim R 472
R v Chiron [1980] 1 NSWLR 218
No. SCC 153 of 2010
Judge: Burns J
Supreme Court of the ACT
Date: 11 May 2012
IN THE SUPREME COURT OF THE )
) No. SCC 153 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
MICHAEL SHANE BOYLE
REASONS FOR DECISION
Judge: Burns J
Date: 11 May 2012
Place: Canberra
On 15 February 2011 the accused was arraigned on an indictment dated 30 June 2010 containing five counts of aiding and abetting Nu-Steel Homes ACT Pty Ltd, by deception, obtaining a financial advantage. To each count he entered a plea of not guilty. The trial of these charges was listed to commence on 5 December 2011. Subsequently, that date was varied to 6 December 2011.
On 6 December 2011 the accused was arraigned on a further indictment dated 6 December 2011 in substitution for the earlier indictment. This indictment contained three counts of aiding and abetting Nu-Steel Homes ACT Pty Ltd, by deception, dishonestly obtaining a financial advantage. To each of these charges he entered pleas of guilty. He also requested I take into account two further charges of obtaining a financial advantage by deception contained in a List of Additional Offences. At the request of his counsel, Mr Sabharwal, I spoke directly to the accused at the time of his arraignment and confirmed that he understood the charges and was entering his pleas of his own free will. The matter was adjourned for sentence on 27 January 2012.
On 15 December 2011 the matter came before Refshauge J who granted Legal Aid ACT leave to withdraw as the accused’s solicitors on the record, and directed that if the accused proposed to seek leave to withdraw his pleas he was to file and serve an application by 20 January 2012 together with any affidavits upon which he proposed to rely.
On 27 January 2012 the accused again appeared before me represented by Mr Sabharwal. The accused did not apply for leave to withdraw his pleas, and withdrew an affidavit sworn by him on 20 January 2012, apparently intended to support an application for leave to withdraw his guilty pleas. I will refer in greater detail to the content of that affidavit later in these reasons. The matter was further adjourned to 16 March 2012 for sentence.
On 16 March the accused’s lawyers were granted leave to withdraw from the matter as the accused wished to pursue his application to withdraw his guilty pleas. The matter was adjourned to 30 March 2012 for hearing of the accused’s application to withdraw his guilty pleas.
On 30 March I heard the accused’s application and refused leave to withdraw his pleas. I indicated that I would publish reasons at a later time. These are those reasons.
The accused swore an affidavit on 20 January 2012 which he relied upon in the application. The affidavit is in the following terms:
1. On the 6th December 2011, I appeared before Justice Burns and entered a plea of guilty to the charges in relation to this matter.
2. At the time I believed that the prosecution had a compelling case against me. The root of the charges was that Nusteel Homes, of which I was the sole director, had no builders licence. The prosecution offered that if I were to plead guilty to the charges, they would withdraw 2 of the charges and not press for a custodial sentence. I agreed, I had little documentary evidence to support me.
3. On the 15th December 2011, I appeared before Justice Refshauge and advised that I wished to change my plea of guilty to one of not guilty. I was directed to file an affidavit to this effect on or before 20th January 2012. I acted for myself on that day.
4. The reason for my change of plea was that I had discovered new and vital documents of evidence that go a long way to showing my innocence of the charges. Copies of these documents are attached.
5. These documents show that I had taken the necessary steps in the application for a builders licence.
6. I had introduced the nominated builder Mr Brendan Wilson, referred to in these documents, to both Mr Vlandis and Mr McCrae at the time. Mr Vlandis and Mr McCrae were informed that the contracts that were in place with Nusteel Homes were in need of amendment to accommodate Mr Wilson as the new nominated builder.
During the hearing of the application the accused withdrew the suggestion contained in the third sentence of paragraph 2 of his affidavit.
Attached to this affidavit was a deed dated 18 February 2008 executed by Brendan Wilson and Nu-Steel Homes ACT Pty Ltd in which, inter alia, Brendan Wilson agreed to be the licensed nominee builder for Nu-Steel Homes ACT Pty Ltd in the ACT and NSW. Of course, this deed was executed after the dates of the offences as alleged by the Crown, being dates between September and December 2007. As such, the deed was, if anything, confirmatory of the case against the accused and could not found a belief on the part of the accused that either he or Nu-Steel Homes ACT Pty Ltd held a builders licence at the relevant dates.
Also attached to the affidavit was an application for a “Construction Practitioner Licence” apparently lodged by Nu-Steel Homes ACT Pty Ltd in the ACT. That application is dated 24 February 2008, again well after the offence dates. This application was returned to Nu-Steel Homes ACT Pty Ltd by letter dated 25 February 2008 as the application had been lodged without the required fee.
The accused also relied on two other documents (exhibit 3). The first is a letter dated 31 October 2006 from All In Vogue Constructions essentially setting out the type of work that All In Vogue Constructions undertook. The second is a letter from Nu-Steel Homes ACT Pty Ltd, signed by the accused as director, to Insuranet Insurances, Deakin ACT dated 22 November 2007 in which the accused asserts that All In Vogue Constructions “has contracted with us to undertake all of our construction work in Canberra and the surrounding regions”. The purpose of the letter, presumably, is to arrange for necessary insurances for the projects set out in the letter. The letter does not purport to say that All In Vogue Constructions had agreed to allow the accused or Nu-Steel Homes ACT Pty Ltd to use its building licence number with respect to any of those projects. In addition, in his affidavit the accused does not depose to the existence of a contract with All In Vogue Constructions at the relevant dates, or of any circumstances relevant to a belief on his part that such a contract existed.
In any event, it is irrelevant to the issue of the accused’s guilt with respect to the charges against him whether All In Vogue Constructions had so authorised either the accused or Nu-Steel Homes ACT Pty Ltd. The deceit alleged by the Crown was the accused, on behalf of Nu-Steel Homes ACT Pty Ltd, holding out to the complainants that either he or the company held a builders licence and other necessary requirements for the proposed constructions. The accused has always acknowledged that this was not the case.
In Hura (2001) 121 A Crim R 472, Spigelman CJ set out the principles relevant to this application at [32]:
The relevant authorities have recently been considered in this Court in R v Toro-Martinez (2000) 114 A Crim R 533. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty:
·where the appellant “did not appreciate the nature of the charge to which the plea was entered”: Ferrer-Esis (1991) 55 A Crim R 231 at 233.
·where the plea was not “a free and voluntary confession”: Chiron (at 220 D-E).
·the “plea was not really attributable to a genuine consciousness of guilt”: Murphy [1965] VR 187 at 191.
·where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: Sagiv (1986) 22 A Crim 73 at 80.
·where the “plea was inducted by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt”: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
·the “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”: Maxwell at 511; 186-187.
·if “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt”: Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320.
There can be no question but that the accused appreciated the nature of the charges to which he entered his pleas. This is not a case like R v Chiron [1980] 1 NSWLR 218, where an erroneous decision to admit prejudicial evidence resulted in the accused’s will being overborne. Nor is there any suggestion that the accused’s pleas were entered as a result of threats or other impropriety. I do not accept that the accused’s pleas do not reflect a genuine consciousness of guilt. He has always maintained a version of events inconsistent with innocence, and he was represented by experienced counsel prior to entering his pleas who undoubtedly advised him of the nature of the charges and the absence of any viable defence. The accused’s initial pleas of not guilty and his subsequent attempt to withdraw his guilty pleas reflect the accused’s unwillingness to accept that what he did was a crime.
At the conclusion of the accused’s application I was satisfied that there were no grounds to grant him leave to withdraw his guilty pleas, and accordingly refused the application.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Decision herein of his Honour, Justice Burns.
Associate:
Date: 11 May 2012
Counsel for the applicant: Mr J Sabharwal
Solicitor for the applicant: Rachel Bird & Co
Counsel for the respondent: Mr D Sahu Khan
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 30 March 2012
Date of judgment: 11 May 2012
0
0
0