R v Hee Lon Tan

[1998] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 287 of 1995

THE QUEEN

v

HEE LON TAN

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JUDGES:	BROOKING, TADGELL and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 1998
DATE OF JUDGMENT:	19 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 23

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Criminal law - Earlier plea of guilty - Withdrawn by leave - Appropriate direction on significance of plea.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Young and	Solicitor to Commonwealth
Mrs. J. Morrish	DPP
For the Applicant	Mr. D. Gurvich	Haines & Polites

BROOKING, J.A. (delivering the judgment of the Court):

1. This is an application for leave to appeal against convictions sustained in the County Court at Melbourne on 3 October 1995 on counts of being knowingly concerned in the importation of 12.57 kilograms of pure heroin and conspiracy to traffic in heroin.

2. The Crown concedes that ground 3(iii) of the grounds of appeal as amended is made out. That ground complains of the judge's failure to direct the jury adequately about the use they could make of the applicant's earlier plea of guilty to a count of being knowingly concerned in importation, which differed from the count on which he was convicted only by alleging a narrower range of dates.

3. The applicant had pleaded guilty in August 1994 but had been allowed to withdraw that plea in October 1994.

4. The applicant gave evidence on his trial that his former plea, which had been proved in the course of the case for the prosecution, was the result of pressure from his counsel and solicitor and his belief that he would not be given legal aid unless he pleaded guilty; that his counsel had told him that if he pleaded guilty he would get a one-third discount; and that he had told his counsel that he would plead not guilty. He was cross-examined about his former plea and the Crown relied on that plea in its final address.

5. The only direction of law given by the trial judge in his charge concerning the matter was one whereby, having referred to the fact of the earlier plea of guilty, he said:

   "Where a person pleads guilty in the County Court the effect of that plea is that it operates as an admission by the accused of the allegations of fact and law necessary to constitute the offence charged, but not of all that is contained in the brief of the prosecutor."

6. Much later in the charge, in the course of summarising the evidence, the judge reminded the jury of the applicant's explanation of his former plea, but his Honour failed to give the jury any direction of the kind said by this Court to be necessary in an appropriate case in R. v. D'Orta Ekanaike [1998] 2 V.R. 140. The Crown, as we have said, concedes that, in view of this, ground 3(iii) is made out. No exception was taken to the charge in respect of the direction given about the plea, and that direction seems indeed to have been shaped in discussion with counsel before the charge. But it is accepted by the Crown that the failure to give a direction in accordance with D'Orta Ekanaike is in the circumstances of this trial a fatal flaw and that a re-trial must be ordered. Counsel for the applicant accepts that, notwithstanding the existence of other grounds of appeal, an order for a re- trial is appropriate.

7. Accordingly the application for leave to appeal against conviction is granted, the appeal is treated as instituted and heard instanter and allowed. The convictions and sentences thereon are quashed and the applicant is remanded in custody for re- trial.