R v Guariglia
[2011] HCATrans 162
[2011] HCATrans 162
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M3 of 2011
B e t w e e n -
THE QUEEN
Applicant
and
GEOFFREY GUARIGLIA
Respondent
Application for special leave to appeal
FRENCH CJ
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 10 JUNE 2011, AT 10.58 AM
Copyright in the High Court of Australia
MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the applicant. (instructed by Solicitor for Public Prosecutions (Vic))
MR L.C. CARTER: May it please the Court, I appear with my learned friend, MR R.F. EDNEY, for the respondent. (instructed by Doogue & O’Brien)
FRENCH CJ: Yes, Mr Silbert.
MR SILBERT: If the Court pleases. This application raises for consideration the question of case management in a criminal context such that it was considered by this Court in Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 in a civil context. It raises, it is submitted, the legitimate question of judges controlling criminal lists throughout Australia and it raises for consideration conflicting authorities in relation to whether pleas of guilty, entered after what one might usually call encouragement by a judge, are voluntary pleas so entered.
CRENNAN J: Justice Nettle reconciled the authorities, did he not?
MR SILBERT: He attempted to, your Honour. He attempted to. The submission in relation to that is that Acting Justice of Appeal Ross reconciled them more satisfactorily than Justice Nettle. The justification attempted by Justice Nettle, it is submitted, did not effectively reconcile them to the extent that they now sit together and can be regarded as reconciled. The conflict between R v Turner in the United Kingdom [1970] QB 321 and R vKCH (2001) 124 A Crim R 233, it is submitted, sit in contrast to the Victorian authorities of Pinhassovitch and Holden.
Indeed, there is an authority cited in the judgment of Justice Ross of Pugh in the Supreme Court of South Australia and it is submitted that those cases, notwithstanding Justice Nettle’s attempt to reconcile them, are not reconcilable as they exist. Part of the difficulty in relation to those cases is the adoption of sentencing pleas for discount mandated in every Australian jurisdiction now where there is a mandated discount for a plea of guilty which did not exist in that form at the time of the earlier authorities, as well as sentence indications, which have now found favour in a number of Australian jurisdictions, in particular in Victoria under the Criminal Procedure Act 2007 to 2009.
So that as a practical proposition judges controlling criminal lists daily express views to litigants as to the strength or otherwise of the Crown case and express – well more than views. They advise litigants as to the legal obligation to provide discounts for pleas of guilty.
CRENNAN J: They are taking a much more active role than once they did is what you are saying?
MR SILBERT: That is what I am saying, your Honour, and, in my submission, it highlights the divergence in the authorities as they exist at the present time. It is submitted that on that basis alone and looking at the criteria referred to under section 35A of the Judiciary Act there is a point of general principle that requires some adjudication in relation to the propriety or otherwise of the court management of the criminal list, which would have been regarded as unacceptable, prior to the advancement of this criminal legislation.
CRENNAN J: In that context I think Acting Justice Ross relied on the fact that the approach in Turner’s Case has been modified in R v Goodyear [2005] 1 WLR 2532.
MR SILBERT: Yes, he did, your Honour, and it is submitted that even that approach has been overtaken in Australia by the advancement of legislation in relation to discounts for pleas of guilty and in relation to sentence indication. So even the situation as it is advanced post Turner in the United Kingdom, it is submitted, has been overtaken completely in most Australian jurisdictions at this point in time. It is submitted that effectively what it does really raise is the propriety of a judge acting as her Honour the trial judge acted in this case.
Now, it is probably not necessary to take your Honours to it. The factual matrix is really summarised by Justice Ross at application book page 297 between lines 10 and 40 where his Honour really effectively sets out the factual situation that pertained in this case. He referred, between lines 10 and 40 of application book page 297, to:
the totality of her Honour’s remarks;
(ii)after the judge made her remarks the matter was adjourned for three days so the applicant could properly consider his position and to enable plea negotiations to take place. During those three days the applicant conferred with his counsel on three separate occasions and then signed a document confirming his instructions to plead guilty;
(iii)the applicant’s guilty plea represented his part of a plea bargain with the prosecution.
The evidence discloses that during those three days the prosecution gave away a number of counts on the numerous presentments that had been preferred against the accused and that as part of that there was a negotiation for the prosecution:
to drop two counts of armed robbery. The applicant [insisted on obtaining] a significant benefit –
by way of the prosecution giving away a forfeiture application in respect of a motor vehicle, an expensive motor vehicle, so that that could be provided for his mother. Lastly, his Honour notes the experienced criminal background of the applicant. So the submission essentially is that the conclusion of fact drawn by his Honour Justice Nettle was not open on the evidence. This is not a case where it is a finding of a judge at first instance. This Court is in as good a position as the intermediate court to reach a finding of fact on the evidence and it is submitted that the facts point very strongly to the conclusion that the plea of guilty entered was a voluntary plea entered after full consideration and full advice obtained by the accused.
FRENCH CJ: This was a case in which the judge had also expressed a view about the strength of the prosecution case?
MR SILBERT: Correct, your Honour.
FRENCH CJ: That is a little more than saying you will get a discount if you plead guilty.
MR SILBERT: Yes, it is and the applicant, as I say, refers to the legislation that relates to sentence indications as well in relation to that. But in relation to the point that your Honour the Chief Justice makes, judges managing criminal lists frequently make reference to the strength of the prosecution case with a view to managing their lists.
FRENCH CJ: That is not the reason for making a reference to the strength of the prosecution case, if any such reference should ever be made.
MR SILBERT: Well, whether it should or should not be made, your Honour, is a policy matter of judges managing criminal lists, whether the strength of the prosecution case should be referred to or not.
CRENNAN J: You cannot forget, though, that at issue here is the exercise of free choice in relation to a change of plea.
MR SILBERT: Yes, your Honour, absolutely. In my submission, that militates a finding of fact that it was not a plea voluntarily entered, given that there was ample indication and ample evidence of free choice over a period of three days. In our submission, that raises an important policy consideration in relation to the management of criminal lists and, as I say,
raises for consideration the matters referred to in 35A in relation to special ‑ ‑ ‑
CRENNAN J: But it may be the other matters you raise are not so much indicators of free choice, but they are reasons other than the promise of a substantial discount. Now, it may be only necessary for it to be shown that the substantial discount was a material factor in relation to the change of plea. In other words, it may not be enough to point to the other factors to which you have taken us.
MR SILBERT: My only response to that, your Honour, is that the answer to that is not known and it could well assist in the management of criminal cases if there was a definite answer as to whether it was enough or was not enough and what the parameters of a judge’s legitimate control were. This case, in our submission, raises for consideration as to exactly what the parameters, what the legitimate parameters are ‑ ‑ ‑
CRENNAN J: Your recurrent references to case management and what is done now in trials, compared with what was once done and so on, suggests this is something of a test case.
MR SILBERT: It may well be a test case, your Honour, in a criminal context. Remarks have been made in a number of civil cases as to case management and, in our submission, it may well be a test case given the conflicting authority and given the fact that there has been no firm pronouncement as to where the parameters lie. I am happy to make the submission that it is a test case because it would then provide guidance to judges throughout the country as to what is permissible and what is not permissible.
CRENNAN J: Would you be giving an undertaking to pay the costs, whatever the event?
MR SILBERT: Yes, your Honour.
CRENNAN J: Thank you.
MR SILBERT: I think I have probably articulated the basis of the application sufficiently for your Honours, unless there is something further.
FRENCH CJ: Thank you, Mr Silbert. Yes, Mr Carter.
MR CARTER: Your Honours, in our respectful submission, special leave should be refused for the reasons we identify in the written submissions which I will seek to supplement briefly and hopefully responsively to some of the questions asked, particularly by your Honour Justice Crennan. The first point, your Honours, is that there is, in our submission, no reason to doubt the majority in the court below were correct. The applicant, therefore, did not have any prospect of success on appeal. Justices Nettle and Hansen came to the same conclusion that the respondent’s guilty plea was procured by improper pressure by the trial judge, which had a material effect on his decision to change his plea.
If I could just at that point pick up your Honour Justice Crennan’s observation. It is exactly right that it need not be the sole cause. His Honour Justice Nettle who did, as I will come to, convincingly reconcile the authorities, stated at application book 294, paragraph 40:
I do not overlook that the applicant had the benefit of defence counsel’s considered and detailed advice –
and that there was a bargain, et cetera. But it was the material contribution of the conducts of the judge on the evidence that led his Honour to conclude – paragraph 42 at the foot of 294:
the applicant’s plea of guilty was procured by improper pressure, which had a material effect on his decision to change his plea –
Your Honours, Justice Hansen, it should be said, at paragraph 46 application book 296 agreed:
with the conclusions of Nettle JA stated at [42] above, generally with his reasons, and with the orders that he proposes. I add only that, given the conclusion in the present case is clear on the facts, I express no view on such differences as there may be between –
the other authorities. Just as a matter of interest, your Honours, Justice Hansen was also a member of the court in Holden, one of the authorities that the Crown would have that there is some tension with. Your Honours, when regard is had to the evidence relied upon by the now respondent below, the majority’s conclusion was inevitable. The facts of this case are extreme and are diluted, with respect, by the applicant under the cloak of the case management submission.
Your Honours, may I just briefly take you to the remarks made by the trial judge. They are set out in full by his Honour Justice Nettle at application book 282. Her Honour, after the second discharge of the jury, directed herself at times to the accused, stated that it was in her opinion a very strong case supported by good witnesses, said that she wanted the parties to talk, said that if the now respondent pleaded guilty he would get a substantial discount and that inducement was repeated. She stated at 282 in the final sentence while it is his right to stand trial:
it’s your client who is going to be doing the time not me -
and stated at 283 that:
it’s in his personal interest to think hard, and perhaps the Crown can think also with some negotiations –
Her Honour at 283 referred to the fact that she had holidays in three weeks and having been informed of the medical problems faced by the respondent stated at about line 27 on 283:
I’m not trying to intrude into your health, but what I think - and it’s hard, Mr Williams, for your client. I’ve sprung this on him but I think he’s entitled obviously to have medical help. But I think also he’s got to bite the bullet and think about all of this. If he decides to go to trial, of course he can.
But I think . . . there’s a resolution, however it comes about, everyone’s stress levels will go down –
Your Honours, these unquestionably on our research of the authorities are an extreme set of facts. It is necessary to pause there and have regard to an important body of jurisprudence set out impeccably by his Honour Justice Nettle, none of which the Crown have impugned in writing or orally. Can I take your Honours to page 292 of the application book. Having, in our submission, reconciled any tension in the authorities, his Honour states at 292, paragraph 36:
So to say is not to suggest that it is necessarily wrong for a trial judge to encourage discussions between the Crown and an accused. Depending on what is said, it may present as entirely neutral. That was the case in Holden. But, generally speaking, it is not the function of a trial judge to express views about the strength of the Crown case (except to the extent that is necessary to determine a no‑case submission), still less to do so for the apparent purpose of persuading an accused of the advantages of pleading guilty. Moreover –
and I emphasise this, your Honours –
according to long standing authority in this State, it is improper for a judge to couple the expression of such an opinion with an intimation to the accused that a plea of guilty will lead to a more lenient sentence than would be imposed on conviction following a contested trial.
Now then, your Honours, at 293 his Honour refers to R v Gray [1977] VR 225, the New South Wales Court of Criminal Appeal decision in R v Lawrence (1980) 32 ALR 72, to the judgment of Chief Justice Andrews in the Queensland Court in R v Harman and also at paragraph 38 and footnote 18 and it is a quote, Chief Justice King’s judgment in R v Shannon [1979] - I think it is, in fact, 21 SASR at 449.
The law in Australia, your Honours - and your Honours would perhaps recall that R v Gray, but for different reasons, was approved by this Court in Siganto - is that it is improper for a judge to induce a guilty plea. All of the jurisprudence that his Honour Justice Nettle identifies and there is no attack made on it by the Crown at 293, holds that. True it is that that has arisen in the context of courts grappling with initially well is it appropriate to discount for guilty pleas at all because one of the concerns was judges were not to be involved in it and what that authority establishes is of course it is appropriate, provided that there is no issue, subject to specific legislative exception of the judge being involved in it.
Your Honours, the Crown rely on the dissenting judgment of Acting Justice Ross. His Honour refers to none of that authority. Rather at application book 325, paragraph 140:
As to the statement that the applicant would get a substantial discount if he pleaded guilty, her Honour was simply stating the factual position.
Now that, with respect, whilst correct by reference to the Sentencing Act fundamentally confuses the role of counsel, the terms of the Sentencing Act, with the role of the judge and the strict injunction of the authorities collected impeccably by his Honour Justice Nettle that it is not to be done by the judge in advance of the decision to plead. The problem is compounded, with respect, at paragraph 141 of the judgment and on whom the Crown rely:
As the High Court made clear in Meissner –
(1995) 184 CLR 132 -
an inducement to plead guilty does not necessarily amount to improper pressure and may be offered simply to assist the person charged to make a free choice in that person’s own interests.
Your Honours, Meissner is concerned with the crime of perversion of the course of justice. There is nothing in there that contemplates that a judge can hold out the sort of statements made by her Honour in this case, which I have taken you to, and that ultimately it can be described as the provision of information assisting the person to make a choice in its own interest. So that is the starting point, your Honours. There is a clear finding of improper pressure and that is wholly consistent with binding authority.
Of course, your Honours, the majority’s conclusion did not sit there. The conclusion that there had been a miscarriage of justice was based on the contents of the affidavit material, namely the affidavit of the respondent and his counsel, Mr Williams, which are in the application book at 260 and 264. Critically, as Justice Nettle found, the respondent’s evidence was substantially corroborated by his counsel and his Honour sets out the relevant matters at pages 284 to 286 of the application book. Those matters include at the top of 285 that:
defence counsel deposes that, although the judge prefaced her remarks on 27 May 2008 with the observation that she did not really talk to accused, defence counsel felt that her Honour was clearly directing her remarks to the applicant . . .
the applicant further deposes that, after the judge so advised him, he felt backed into a corner . . . He felt under great pressure and stressed that he could not really see a way out.
Again, at 285, 17:
that evidence is also corroborated by defence counsel’s affidavit of 5 October 2010.
Then a matter of utmost importance to the majority below at 285, paragraph 18, and the matter is returned to by his Honour Justice Nettle at 294, paragraph 41:
the applicant’s written instructions to defence counsel to enter the plea of guilty included this statement –
by the now respondent -
My decision to plead guilty has been made following her Honour Judge Douglas indicating to me that she would give me a ‘substantial discount’ –
Further, your Honours, Justice Nettle referred to the evidence of the respondent that the day after, the very next day after he pleaded guilty:
he telephoned his solicitor on the day following the plea and told her that he did not feel right pleading guilty to crimes which he did not commit. According to him, the solicitor advised him that it was too late to change his plea –
That had a multifaceted submission in this case, your Honours. First, at 287 in paragraph 22 his Honour stated that:
There is no supporting affidavit from the solicitor to that effect. But we were told without objection that the applicant’s affidavit was served on the solicitor in order to enable her to contradict it, and that there had been no response. In those circumstances, and since the respondent did not seek to cross‑examine the applicant on his affidavit, I am disposed to accept what he says.
The second significance, your Honour, recalling that this was an application out of time in relation to conviction, was his Honour’s finding at 279, paragraph 4, at the bottom of the page:
there has been a miscarriage of justice and I am satisfied that, because the applicant was not advised of the possibility of a miscarriage of justice until immediately before he made his application for leave to appeal out of time, the time for making the application for leave to appeal should be extended.
His Honour Justice Ross, who our learned friends would have it came to the correct conclusion, does not refer to the evidence as to the contact with the solicitor at all. The Crown, your Honours, and this really is an insurmountable obstacle, it is submitted, in relation to any question of vehicle, did not seek in the Court of Appeal to cross‑examine the respondent or his counsel on their affidavits and that became intrinsic to the conclusion of the majority.
I have already identified one area where that is so in relation to the call to the solicitor, but if I take your Honours to 294 under the heading “The judge exerted improper pressure” - I do not read it all out, your Honours see it - the final sentence:
In this case, the probability that it was so is borne out by the contents of the applicant’s and defence counsel’s unchallenged affidavits.
The Crown could have cross‑examined, as they did, for example, in R v Holden [2009] VSCA 254 at paragraphs 47 to 52. Having not done so and lost they should not be granted special leave to have this Court overturn what is a finding of fact made in accordance with principle.
The other important matter, and this was raised by your Honour Justice Crennan, it is clear, in our submission, on an analysis of the reasons of Justice Nettle and Acting Justice Ross that the divergence on the conclusion as to the facts does not tender or properly expose for consideration by this Court any conflict of principle. The majority and the minority in the finish diverge on the facts.
Could I just make that point good, by reference to a couple of passages? First of all, his Honour Justice Nettle at 291 of the application book, having spent – 288 to 291 deal with Pinhassovitch, Holden, the English authority of Turner and KCH in New South Wales - his Honour states at 33 on 291:
I do not construe Pinhassovitch or Holden as dictating that judicial intimations of the kind in question may not ever vitiate a plea, any more than I construe Turner or at least KCH as deciding that judicial intimations of the kind there considered will invariably vitiate a plea. It seems to me that both cases or at least KCH leave open the possibility that, despite the presumed effects of judicial influence, there may be cases where the facts show that an otherwise objectionable judicial intimation does not have a material effect.
The paragraphs that follow, your Honours, back to the finding of fact what one sees, with respect, is an individualised assessment of the evidence. Yes, the remarks by the judges are improper, but it was not enough of its own to lead to miscarriage. That rested upon the evidence, as I have indicated, that was not the subject of cross‑examination in the court below. Justice Ross, the dissenting judge, also accepted at, for example, 305 paragraph 73 that:
Whether or not the decision to plead guilty in a particular case is made as an exercise of free choice is simply a question of fact.
In our respectful submission, given that it is not said that Justice Nettle has fallen into any error and, indeed, no written or oral submission has been made pointing to any error of his Honour Justice Nettle other than the somewhat, with respect, overreaching submission that his Honour was bound to come to a different conclusion on the facts.
The next reason why special leave should be refused, your Honours, if that is not enough, is that it is an application by the Crown. At least historically such applications are granted frugally. There has, as we pointed out, been a very lengthy delay in this matter. Indeed, the Crown has pointed it out as well. It might be said finally that if there is a public interest or points of public interest raised by the case management considerations that they would be better dealt with by a law reform body rather than by this
Court in a case where, as I say, in our respectful submission, the decisions on the facts are in accordance with settled principle and where there is no tension in the finish illuminated by the different approaches to the facts.
FRENCH CJ: What is the position of your client at the moment, Mr Carter? The Court of Appeal in relation to the convictions which they - remanded him in custody, but there were other sentences being served in respect of other matters.
MR CARTER: Yes, but the position is, your Honour, that he remains in custody awaiting the retrials ordered by the Court of Appeal.
FRENCH CJ: But is he otherwise serving time on other matters?
MR CARTER: He has been eligible for parole since late last year. But these retrials ordered by his Honour Justice Nettle are – or the majority, I should say, I am sorry, your Honours - outstanding pending the outcome of this. If the Court pleases.
FRENCH CJ: Thank you, Mr Carter. Yes, Mr Silbert.
MR SILBERT: Only to say, your Honours, that in relation to the facts Justice Ross considered the same material and came to an opposite conclusion. In our submission, that highlights the difficulties thrown up by this case, certainly, the potentiality for it to act as a test case in relation to defining parameters of a trial judge’s permitted interference pre‑trial, in relation to the entry of pleas. If the Court pleases.
FRENCH CJ: In our opinion, having regard to the undisputed factual circumstances of this case, the application is not a suitable vehicle for the grant of special leave. Nor does the Court consider, having regard to the prospects of success of any eventual appeal, that the interests of justice would be served by the grant. Special leave will be refused.
MR CARTER: If the Court pleases. Your Honour, in the application book at 354, paragraph 39, an order was sought in respect of costs which I understand is not opposed.
MR SILBERT: That is correct, your Honour.
FRENCH CJ: Special leave will be refused with costs.
MR CARTER: If the Court pleases.
FRENCH CJ: We will adjourn briefly while the video link is established for the next matter.
AT 11.32 AM THE MATTER WAS CONCLUDED
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