R v Favero

[1999] NSWCCA 320

CITATION:	Regina v William Vincenzo Favero [1999] NSWCCA 320 revised - 19/10/99
FILE NUMBER(S):	CCA 60197/99
HEARING DATE(S):	11 October 1999
JUDGMENT DATE:	11 October 1999
PARTIES :	Regina William Vincenzo Favero
JUDGMENT OF:	Sully J at 1; Hidden J at 23; Greg James J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0175
LOWER COURT JUDICIAL OFFICER:	Nield DCJ

COUNSEL:	C. K. Maxwell QC - Crown D. A. Buchanan SC - Applicant
SOLICITORS:	S. E. O'Connor - Crown John Bettens & Co. - Applicant
CATCHWORDS:	CRIMINAL LAW - application to withdraw pleas of guilty - ground of application, failure of legal representatives to advise of available defences - principles applicable; LEGAL PROFESSION - direct access of client to barrister - observations as to undesirability of this practice
ACTS CITED:	Criminal Appeal Act Drug Misuse and Trafficking Act
CASES CITED:	R v Ganderton, unreported CCA, 17/9/98 R v Davies, unreported CCA, 16/12/93 R v Liberti, (1991) 55 A Crim R
DECISION:	Leave to appeal granted; orders made by Nield DCJ on 1/3/99 refusing leave to withdraw applicant's pleas of guilty and dismissing his notice of motion seeking such leave vacated; leave granted to applicant to withdraw his pleas of guilty entered on 22/5/99 in the District Court; matter remitted to the District Court of NSW for trial according to law.

IN THE COURT OF
CRIMINAL APPEAL

60197/99

SULLY J
HIDDEN J GREG JAMES J

Monday 11 October 1999

REGINA v William Vincenzo FAVERO

JUDGMENT

1 SULLY J:: Before the Court is an application brought pursuant to s 5F of the Criminal Appeal Act by Mr William Vincenzo Favero as applicant. 2 The point of the application, put simply, is to obtain for Mr Favero leave to withdraw two pleas of guilty that he has entered in the District Court. 3 The material facts can be stated shortly and as follows: on 31 March 1998 the applicant was involved in a motor vehicle accident. Police officers attended the scene of the accident and conducted the normal enquiries. The enquiries disclosed that the applicant was in possession of a significant quantity of amphetamine. 4 In an item which has been described as a "bum bag" he had a small amount of amphetamine in the order of some half dozen or so grams. A search of the boot of the vehicle which the applicant had been driving disclosed a canvas sporting-type bag within which were a number of containers each of which held a quantity of what proved upon analysis to be amphetamine, the total quantity thus found in the applicant's possession being, broadly speaking, in the order of some six kilograms. 5 The applicant was invited to account for his possession of that material. So far as concerns the material in the bum bag, he asserted that it was for his own use and for no other purpose. So far as concerns the very large quantity of the material in the boot of the car, the applicant gave to the police, eventually, a rather rambling explanation which involved the proposition that he had been maintaining custody of the material on behalf of somebody else unidentified except by the rather indistinct description of "Sam" who was said to come from Lebanon. 6 The thrust of what the applicant said eventually to the police was to the effect that he had been apprehensive that if he left the large quantity of amphetamine in his premises unattended somebody might steal it, thus causing him to have not inconsiderable difficulties with "Sam" from Lebanon. And so, it was said by the applicant, he had loaded the material into his motor vehicle in order to ensure that he could keep his eye on it constantly until such time as he could hand it over to "Sam" from Lebanon. Quite where, when and in what particular circumstances that transaction was to come to fruition, various accounts given by the applicant as events developed never quite explained. 7 In due course the applicant was charged with two contraventions of the Drug Misuse and Trafficking Act. Put very simply, he was charged upon both such matters with a supply of a prohibited drug. In due course he was committed for trial on what is conventionally prescribed as a paper committal; and in due course he appeared in the District Court, and before Karpin DCJ, represented by Mr Thomas of counsel. 8 In what appears to have been a fairly abbreviated, not to say peremptory, proceeding pleas were taken from the applicant; and by his then counsel he pleaded guilty to both charges. Subsequently his legal representation changed, and he received advice, the thrust of which was that on the known facts there were at least arguable defences available to him in respect of both of the charges upon which he had been committed for sentence following his pleas of guilty. 9 Fortified by that advice, the applicant moved in the District Court, and before Nield DCJ, for leave, in effect, to vacate his pleas of guilty and to have his matters remitted for trial before a Judge and jury in the District Court. In a judgment delivered on 1 March last Nield DCJ refused those applications. 10 The reasons published by his Honour are lengthy and detailed. They make various findings of fact of which it is sufficient for present purposes to say that in my opinion they were findings entirely open to his Honour upon the evidence before him. 11 Many of the practical problems with which his Honour had to grapple in connection with the application before him, and indeed the matter with which this Court has thus far had to grapple in connection with the present application, arise by reason of the nature of the representation available to the applicant at the time he entered his pleas of guilty before Karpin DCJ. 12 In that connection Nield DCJ made these observations in a context in which his Honour had indicated a disposition to accept certain evidence given by Mr Thomas, the applicant's counsel, at the time his pleas were entered.

"However, although I accept Mr Thomas' evidence I do not approve of his conferring with the applicant without a witness being present or of his failing to obtain written confirmation of instructions given to him by the applicant. As I said during submissions this case is a glaring example of why a barrister should not accept instructions directly from a client notwithstanding what the Bar Association rules provide but why a barrister should not confer with a client without an instructing solicitor or the solicitor's clerk being present and why a barrister should obtain written confirmation of a client's instructions before putting the instructions into effect."

13   There was a time when best professional practice would have been understood instinctively by those engaged in the profession of the law to proscribe the kind of direct dealing between the barrister and his client which is so significant a feature by the relevant course of events in the present case. 14   The changes that have been made to that long-standing, well-tried, and tested, definition of professional practice cannot of course be ignored. They have professional, and to some extent legislative, sanction. I think the Court would be lacking in the proper performance of its own duty if it did not say, and say plainly, that those departures from prior practice are a sorry interference with proper standards of professional practice, and ought to receive absolutely no encouragement from any Court. For myself, I agree entirely with the substance of the strictures forming part of Nield DCJ's judgment and which I have earlier quoted. 15   One result of that course of professional representation of the present applicant is that a state of affairs has resulted of which, as it seems to me, it cannot be gainsaid that, whatever took place in detail in the exchanges held between the applicant and his then counsel, the applicant had not had any, or any competent, advice that laid out before him, in a way that permitted the taking of proper relevant instructions, the nature and scope of the defences that might be lawfully available to him in connection with charges of the kind that had been preferred against him. 16   What has resulted in the present case seems to be the kind of situation with which this Court had to deal in the matter of Todd Ronald Ganderton, unreported CCA, 17 September 1998. In that matter the majority opinion of the Court, - and in a context substantially the same as that with which the Court is now dealing, - saw as being particularly significant the absence of advice about defences lawfully available. The majority opinion referred to and followed principles enunciated by the Court in Davies, CCA unreported, 16 December 1993. In particular the Court in Ganderton adopted the following statement taken from the judgment in Davies:

"If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."

17   In developing that principle in its application to the given facts of Ganderton the majority opinion has these further observations to make:

"Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possibly mistaken understanding of the facts, as in Davies . It may also arise from a failure on the part of the accused's legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged. Liberti ... was such a case.

It makes no difference in principle that the omission of the legal representative was - as in the present case - to inform the accused of the existence of a possible defence in the strict sense of a defence which the accused has to establish.

If it had been appreciated that the appellant had or might have a defence under s 52A(8), (this being the relevant source of what was alleged in Ganderton to be an arguable defence available to the applicant in that case), a report from an expert would have been obtained and the charge would have been defended. The appellant would have had an arguable case for acquittal.
There was, in these circumstances, no 'genuine consciousness of guilt' when the appellant pleaded guilty to the charges, and there was an 'issuable question of guilt' to be tried. There was, accordingly, a miscarriage of justice, and there must be a new trial."

18   That expression of opinion concluded with an averment by the majority of the Court that the reasoning thus exposed, and the conclusion thus reached, had observed what their Honours described as "caution bordering on circumspection" of the kind appropriate in such a case; and, of course, it clearly is appropriate. 19   I have sought to keep in mind in connection with the present application, somewhat different as it is of course on its own particular facts, the need to observe precisely caution bordering on circumspection in reaching the conclusion that I have reached. I must say frankly that I reached it without any satisfaction at all, in that it seems to me to be ridiculous that a person who is found in open possession of six kilograms of prohibited drugs can in effect meet that situation, straightforward as it is, by a series of forensic stratagems that lead to the kind of situation with which this Court is now called upon to deal. 20   However, that is a view which I hold because of the imperative need, as I see it, for the Court of Criminal Appeal, and indeed all Courts, never to give encouragement to the development and expansion of what an English Judge, in admittedly a different situation, many years ago described as "veils of ingenious suggestion". 21   Be that as it may, the applicant is entitled to have his present application dealt with strictly according to law. Approached in that way, and however reluctant one might be to endorse the conclusion to which a proper application of the law leads, I think that a proper application of the law leads to the necessary success of the present application. 22   I propose the following orders:

1. Leave to appeal be granted.
2. That orders made by Nield DCJ on 1 March 1999 refusing leave to withdraw the applicant's pleas of guilty and dismissing his notice of motion seeking such leave be vacated.
3. Leave be granted to the applicant to withdraw his pleas of guilty entered on 22 May 1998 in the District Court.
4. That the matter be remitted to the District Court of New South Wales for trial according to law.

23   HIDDEN J: I agree with the orders proposed by Sully J for the reasons which his Honour has given. 24   GREG JAMES J: I too agree with the orders proposed and what has fallen from the judge presiding. The test adopted by the learned trial judge for the purpose of ascertaining whether it was proper that he might exercise his discretion to permit the applicant to withdraw his plea was expressed by him as follows:

"I am satisfied that he knew of the facts alleged against him by the Crown before he entered his guilty pleas and his guilty pleas were entered intentionally and deliberately."

25 That test does not precisely accord with the test enunciated in Davies, CCA unreported 16.12.93, Ganderton, CCA unreported 17.9.98 and Liberti, (1991) 55 A Crim R 125. 26 In Liberti Kirby P referred to the circumspection with which an appellate court would approach an application to withdraw a plea of guilty or to go behind it. I have had regard to that circumspection when considering this application. 27 His Honour said:

"An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance."

28   In this matter I am of the view on his Honour's findings that this court could have no confidence that such has occurred and indeed in relation to the defences one could have every confidence it did not so occur. 29   His Honour continued:

"Ultimately the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not in law sustained by the facts."

30   That court can only perform that role when it is in its fact-finding mode. In those circumstances in my view this court should step in and return the applicant to a court of trial which can find the facts appropriately. I agree with the orders proposed.

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