R v Noel John LAWSON
[2009] NSWDC 81
•8 May 2009
CITATION: R v Noel John LAWSON [2009] NSWDC 81
JUDGMENT DATE:
8 May 2009JURISDICTION: Criminal JUDGMENT OF: Bennett SC DCJ DECISION: 1. The application to withdraw the pleas of guilty entered to the three counts on the indictment upon which the applicant was arraigned on 24 April 2008 is refused.
2. The additional offences included in the Form 1 signed by the applicant and on behalf of the Director of Public Prosecutions, shall be taken into account upon the determination of sentence for the principal offence, count 1 in the indictment.CATCHWORDS: CRIMINAL LAW - procedure - pleas - general pleas - plea of guilty - withdrawal and restoration of plea - generally LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Listening Devices Act 1984CASES CITED: Johnston v R [2009] NSWCCA 82
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
R v Abbruzzese [2006] NSWCCA 207
R v Stephen John Rae (No 2) [2005] NSWCCA 380
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37PARTIES: The Crown (Respondent)
Noel John Lawson (Applicant)FILE NUMBER(S): 2007 / 00011479 COUNSEL: D Degnan (Respondent)
P Paish (Applicant)SOLICITORS: Director of Public Prosecutions (Respondent)
Kiki Kyriacou Lawyers (Applicant)
IN THE DISTRICT COURT
OF NEW SOUTH WALES
Bennett SC DCJ
8 May 2009
R v Noel John LAWSON
2007 / 00011479
JUDGMENT
APPLICATION TO WITHDRAW PLEAS OF GUILTY
Introduction
1 Noel John Lawson seeks leave to withdraw pleas of guilty entered before me upon arraignment in the District Court of New South Wales on 24 April 2008, and to withdraw his acknowledgement of guilt in respect of two additional offences that he asked to be taken into account on sentence.
The History of the Proceedings
First Count2 The applicant first appeared before me for trial on Tuesday 22 April 2008 upon an indictment charging him with eight offences in the following terms,
- On 4 September 2005 at Cartwright in State of New South Wales, being armed with an offensive weapon, namely a knife, did rob Chris Minett of heroin, the property of Chris Minett.
On 8 September 2005 at Cartwright in the State of New South Wales, did enter upon land occupied in connection with a building, namely at 24 Woolnough Place, with intent to commit an indictable offence, namely intimidation, upon that land.
On 8 September 2005 at Cartwright in the State of New South Wales, while in the company of another person did detain Ben Randall without his consent and with intent to obtain an advantage, namely gain entry to unit 8/24 Woolnough Place.
On 8 September 2005 at Cartwright in the State of New South Wales, did intimidate Rhonda Rumble with intent to cause her to fear physical or mental harm.
On 8 September 2005 at Cartwright in the State of New South Wales, did maliciously damage the property of another, namely a window of unit 8/24 Woolnough Place.
Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely maliciously inflict grievous bodily harm upon Chris Minett with intent to do grievous bodily harm.
Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely maliciously inflict grievous bodily harm upon Rhonda Rumble with intent to do grievous bodily harm.
Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did an act, namely conspire with others to dissuade Christ Minett and Rhonda Rumble from giving evidence in his court proceedings, with intent thereby to pervert the course of justice.
3 There was an appearance on behalf of the Commissioner of Police seeking orders to protect the identity of an undercover operative used in the course of the investigation. The Crown and the applicant did not object to the orders sought. I reviewed the Notice of Motion and the evidence in support and was persuaded that the orders were appropriate. This decision does not impact upon the question I am now required to answer.
4 Upon arraignment the applicant pleaded not guilty and there followed an application for the rejection of evidence. The application was in two respects. The first related to a recording and the transcript of the recording of a conversation captured covertly on 6 December 2006 under the authority of a warrant issued pursuant to the Listening Devices Act 1984, since repealed. The other was in respect of conversations between alleged co-offenders in which the applicant was not a participant.
5 The selection of a jury was deferred until I heard argument upon these questions, after which the proceedings were adjourned to the following day so that I might review the documents exhibited and to allow the applicant’s counsel to further develop his submissions.
6 On 23 April 2008 counsel informed me that he had received fresh instructions as a result of which he had put an offer to the Crown Prosecutor, who in turn was awaiting instructions from the Director of Public Prosecutions. I stood the matter down. Counsel also informed me that there were discussions continuing as to the terms of a statement of facts upon which the applicant would be sentenced. When the matter was mentioned later in the morning counsel informed me that the Crown would accept pleas of guilty to three counts, with two further counts to be included in a Form 1 to be dealt with pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. Remaining charges were to be abandoned.
7 Thus, from the original indictment counts 3, 6 and 7 were presented as counts 1, 2 and 3 in the fresh indictment, and counts 2 and 4 were included as additional offences to be taken into account on the Form 1. Counts 1, 5 and 8 from the original indictment were abandoned.
8 To allow time to the parties to settle the documents the proceedings were adjourned to the following day. On 24 April 2008 the applicant was re-arraigned upon a fresh indictment and pleaded guilty to the following charges,
On 8 September 2005 at Cartwright in the State of New South Wales, while in the company of another person did detain Ben Randall without his consent and with intent to obtain an advantage, namely gain entry to unit 8/24 Woolnough Place.
Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely maliciously inflict grievous bodily harm upon Chris Minett with intent to do grievous bodily harm.
Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely maliciously inflict grievous bodily harm upon Rhonda Rumble with intent to do grievous bodily harm.
9 I then addressed the applicant; he confirmed his wish to have taken into account on sentence an offence on 8 September 2005 of entering 24 Woolnough Place, Cartwright with intent to commit the indictable offence of intimidation contrary to s 114(1)(d) Crimes Act 1900, and an offence on the same date of and at the same place of intimidation of Rhonda Rumble with intent to cause her to fear physical or mental harm contrary to s 545AB Crimes Act. He admitted his guilt in respect of each of these additional offences.
10 A statement of agreed facts was tendered and marked Exhibit A. Counsel sought a lengthy adjournment for the preparation of reports to be tendered in the sentence proceedings. The hearing on sentence was appointed to 25 July 2008.
11 When the matter resumed counsel informed me that he and his instructing solicitor were in conflict with the applicant such that they could no longer appear and sought leave to withdraw. The Crown conceded that in the circumstances there could be no other course. Leave was given and the matter adjourned to 29 July 2008 for other representatives to assume responsibility for the proceedings.
12 On 29 July 2008 another solicitor appeared, and informed the court that he had only been recently retained and needed time to speak with the applicant. He asked that the matter be adjourned to 11 September 2008 for sentencing proceedings, and in the mean time, the court would be informed if there was to be an application for leave to withdraw the pleas of guilty. If so, a notice of motion with the orders sought was to be filed before 11 September 2008. If the matter was to proceed otherwise, the court was to be informed so that the proceedings on sentence might resume.
13 On 5 September 2008 the matter was brought before me with the applicant’s present counsel appearing. The applicant was not present. I was advised that the applicant had given instructions that he wished to withdraw his pleas of guilty. Counsel had with him a form of Notice of Motion, and an affidavit prepared in the name of the applicant but unsworn. I gave leave for the Notice of Motion to be filed, and for the affidavit to be filed once it was sworn or affirmed.
14 The matter was adjourned for hearing on 11 September 2008, but was reappointed to the 14 November 2008. On that day some of the evidence upon which the parties intend to rely was tendered. This included evidence from the applicant who adopted his affidavit, sworn on 10 September 2008. Evidence was also to be provided by the applicant’s former counsel and solicitor, but there were questions regarding the privilege attaching to the communications between them, resolved when the applicant entered the witness box and expressly waived legal professional privilege, which I have taken to include client legal privilege under the Evidence Act 1995. Thereupon, affidavits prepared by the applicant’s former counsel and solicitor were delivered into the hands of the Crown who in turn made them available to the applicant’s present representatives. The matter was stood down to allow counsel time to consider the documents, but when it resumed shortly before 1.00pm counsel asked for the matter to be adjourned so that he might have time to consider and take instructions in light of the depth of detail in the material. The proceedings were adjourned to 25 November 2008 for the cross examination of the witnesses, including the applicant.
15 On 25 November 2008 the applicant gave evidence confirming his waiver of privilege before me on the earlier occasion. His said that he had all times maintained that he is not guilty of these offences and made this clear to his counsel. Notwithstanding this, he said that after my ruling that the covert recording of the conversation was to be admitted into evidence, and when he received advice that he had no chance of successfully defending the trial and would be looking at a lengthy period in custody, he did not know what to think. He feared that he would be sentenced for 10 years or more should he maintain his pleas of not guilty, and then decided that he should negotiate for a better outcome.
16 Evidence was then led from Mr Price, the applicant’s counsel when he pleaded guilty.
17 From that date the proceedings were adjourned to resume on 27 January 2009 when the cross examination of Mr Price resumed. Evidence was then led from Mr Price’s instructing solicitor, Ms McGowan.
18 From that date the matter was adjourned to a date to be fixed for judgement.
The Evidence
19 In addition to the indictment to which the applicant pleaded guilty, the Form 1, and the Notice of Motion in which the orders sought are expressed, I have the following evidence:
· Affidavit sworn by the applicant on 10 September 2008;
· Exhibit A is the statement of agreed facts tendered initially on 24 April 2008 after the applicant pleaded guilty;
· Exhibit B is the exhibits tendered on the voir dire, comprising the transcript of the covertly recorded conversation at Parklea gaol on 6 December 2006, transcript of an interview between police and the co-accused Renee Murphy, and transcripts of telephone intercepts on 24, 25, 26, and 28 November 2006, and 4, 5, and 6 December 2006;
· Exhibit C is the transcript of proceedings on 22 April 2008;
· Exhibit 1 is the transcript of a covertly recorded conversation of 25 November 2006 between Under Cover Operative Sean and Renee Murphy;
· Exhibit 2 is a transcript of a captured telephone conversation on 6 December 2006 at 11:11:33;
· Exhibit 3 is notes made by Ms McGowan said to be on conference with the applicant;
· Affidavit sworn by David Geoffrey Price on 24 October 2008;
· Affidavit sworn by Frances McGowan on 14 November 2008;
· The evidence from the applicant on 14 November 2008 expressly waiving privilege, which did not proceed beyond confirming his affidavit and the expression of waiver, whereupon his evidence was suspended and the matter adjourned;
· The evidence from the applicant on 25 November 2008;
· The evidence from Mr Price on 25 November 2008 and 27 January 2009; and
· The evidence from Ms McGowan on 27 January 2009.
The Circumstances Leading to the Pleas of Guilty
20 The following analysis includes reference to the exchanges in court as well as the evidence tendered. Throughout the proceedings, except when mentioned on 5 September 2008, the applicant was of course present, and from his position in the dock was exposed to all that was said by counsel, the Crown, and from the bench. The mention of the proceedings on 5 September 2008 was to inform the court that the applicant confirmed his intention to seek to withdraw his pleas of guilty.
21 There was no Crown Case Statement from which to glean the parameters of what was to be alleged against the applicant at trial, but with the particulars of the charges and the benefit of the submissions of counsel in the initial stages of the proceedings, an understanding of the essence of the prosecution case may be ascertained.
22 It is apparent from the construct of the charges in the original indictment that the Crown was to allege that the applicant engaged upon connected episodes of misconduct over the period commencing on 4 September 2005 and concluding on 30 October 2006. Count 1 alleged that on 4 September 2005 he robbed a man named Minett of heroin whilst armed with a knife; counts 2 through 5 alleged that on 8 September 2005 he sought to intimidate the victim Minett and Rhonda Rumble, a witness; count 7 alleged that between 30 October 2006 and 8 December 2006 he conspired with his former girl friend, Renee Murphy, to maliciously inflict grievous bodily harm upon Rumble; and count 8 alleged that between those dates he conspired with others to dissuade Minett and Rumble from giving evidence.
23 It was to be alleged that after the robbery offence the applicant embarked upon the intimidation of the witnesses, and was thereafter denied bail. Then a man named Best was approached to interfere with the witnesses, but he brought the matter to the attention of the police and an undercover operative using the name Sean was introduced as a person who would do so. The undercover operative met with Murphy and the applicant on 6 December 2006 in Parklea gaol where the applicant was held. Their conversation was covertly recorded.
24 On 22 April 2008, when the matter commenced before me, Murphy had already pleaded guilty to charges against her for the role she played; she was to be called as a witness in the Crown case.
25 Initially the applicant challenged the admission of the both the recording of the conversation captured on 6 December 2006 during the meeting between the applicant, Murphy, and the undercover operative, and the transcript of that recording for use as an aide memoire. The premise offered was that the recording was mostly, if not entirely, indecipherable when played, and it therefore had no probative value. It followed that the purported transcript, which could be no more than and aide memoire even if the recording could be used, should not be put before the jury.
26 The tape was played in open court. A significant proportion of what was recorded could be heard and understood.
27 Counsel for the applicant and I differed as to the quality of the electronic recording. I took issue with the response from counsel after my comment upon the quality of the recording played in court. The exchange appears at pages 9 and 10 of the transcript (emphasis added),
CD PLAYED TO COURT
HIS HONOUR: Is there anything in the balance of that that’s of any moment. There’s nothing, the transcript doesn’t seem to indicate on the last page anything of moment.
CROWN PROSECUTOR: No.
HIS HONOUR: I’ll take the morning tea adjournment now and we’ll resume in 20 minutes.
PRICE: Is your Honour going to deal with that other matter or is your Honour going to deal with this matter.
HIS HONOUR: I’ll hear - I’ll continue with this I think and see what you want to say about it. I must say Mr Price I heard some - what appears to be fairly incriminating remarks from V3 who is said to be your client.
HIS HONOUR: Well okay, don’t - just a minute, I wasn’t misrepresenting to you what I heard , I’ve marked on the transcript those utterances that I heard V3 of attributed to V3. There is some that is indistinct but there is material there indicating that your client, if he is V3, was discussing with V2 the bashing of these people and putting them in hospital.PRICE: Your Honour must be the Six Million Dollar Man your Honour because I couldn’t hear anything other than one word every 500.
28 I found no difficulty hearing significant portions of what was attributed to the applicant. I expressed the view that the utterances heard were incriminating. Counsel’s response as to my capacity to hear what was played was in my opinion inappropriate.
29 At page 10 line 39 before taking the morning adjournment, I added,
Well I’ll hear what your argument is later but I can tell you that I had no difficulty hearing some incriminating remarks falling from the person identified as V3 on the tape, with or without the transcript. So you are aware of what impression the evidence has made upon me, you’ll be able to craft your submissions accordingly, …
30 Thereafter, counsel refined his challenge the to the transcript only, and did not press for the rejection of the electronic recording, from which the jury could assess for themselves what was said in that conversation. However, it remained that not all of the electronic recording could be deciphered, including some of the conversation that had been transcribed. It was appropriate therefore to allow the parties time to identify those passages which could not be understood and have the purported transcript of those parts of the conversations excised from the typewritten document.
31 In the course of argument counsel also made the point that the conversation as it appears in the transcript left a question about whether there was evidence of an agreement sufficient to found the charges of conspiracy. These submissions appear at pages 12 and 13 of the transcript of 22 April 2008. This point was again raised at page 30 when counsel made submissions against the admission of conversations between the alleged co-offenders. Counsel made submissions in terms that none of the evidence had relevance to a fact in issue in the trial, because the conversation recorded covertly on 6 December 2006 and the conversations captured in the telephone calls could not have established an agreement or conspiracy to commit a crime, and extended no further than to discussions in which the prospect of such activity was contemplated.
32 Counsel also challenged the evidence of telephone conversations between the proposed witness Murphy and the man Best, as inadmissible hearsay evidence of conversations in which the applicant was not a participant. As the argument evolved the Crown made clear that it tendered the evidence of these telephone calls as evidence of what was communicated between the participants acting in combination for the unlawful purposes alleged by the Crown. It appears that counsel initially misunderstood the relevance of this evidence, until my attempt to crystallise the point at page 32 of the transcript where the following appears,
PRICE: I see the - I understand where the Crown’s coming from now, I wasn’t so clear on the way that she wanted to lead it or the argument, it’s crystallised more in my mind now, I’d ask your Honour that at least I consider that overnight and have another look at the material again in that regard and I--HIS HONOUR: --that’s presented, yes. They’re not offered as to the truth of the representations but as to the fact of the conversations. In any event what I’ll do I’ll read, I’ll take these and start reading now, that’ll leave you - I’ll return the electronic recording which is exhibit voir dire 1 so that that part of your work can get underway. There should be sufficient for you - well I’d better read this material to indicate what my view is about it tomorrow morning so that the Crown will be in a position to open. I’ve got to say on what’s been said to me so far and having not read the material I need to read the material. But assuming that it records discussions between these people developing the - well evolving towards the discussion that took place at Parklea Gaol which is the essence of the conspiracy allege. I can’t see how these telephone calls would not be admissible as to the fact of the conversations as part of the actus of the--
33 The hearing was adjourned to the following day to allow counsel to review his submissions, and for both counsel to identify the portions of the conversation of 6 December 2006 that could properly be presented to the jury in the electronic format and the typewritten aide memoir.
34 The argument on 22 April 2008 extended over some time, and as noted earlier, it was in front of the applicant as he sat in the dock. Unless he could not hear what was being said because of some impediment, of which I have no evidence, he could not be under any misunderstanding about the essence of the challenges that were being mounted. The same observation must be made in respect of the recorded conversation that was played in court. The applicant was present and must have heard those parts of the conversation that were discernible when the recording was played.
35 Significantly, it was quite apparent that the opportunity counsel had to listen to the recorded conversation of 6 December 2006 before it was played in open court in the presence of the applicant, was upon equipment from which he had been unable to hear what was said. The Crown Prosecutor had similar difficulty it would appear, because she initially made the concession that the recording was of poor quality. When called upon for her submissions she abandoned that concession and argued in support of the quality of the recording as it was played in court.
36 It is a reasonable inference to draw that until 22 April 2008 it was anticipated that the Crown would not have available a recording of the conversation of sufficient quality to allow that evidence to be presented to the jury. Had the application to reject that recording been successful, the Crown case would have depended upon the telephone conversations, and the evidence of the witnesses speaking from their memory of what was said by the applicant without the benefit of the recording to support the reliability of that evidence. With the recording, the opportunities for the applicant to challenge by a denial or qualification what he was captured saying were diminished. He must have been aware of this by the end of the proceedings on that day.
37 According to the transcript of the conversation on 6 December 2006, contact between the applicant and the undercover operative was shortly after 8.22am. The transcript identifies as V1 Renee Murphy, as V2 the undercover police operative Sean, and as V3 the applicant. There is no challenge to what has been attributed to the participants in this conversation.
38 The applicant can be heard instructing the undercover operative that he would rather the witnesses not turn up at court, and that they should be reminded that one of them risks finding himself in trouble over drugs (p 9). He spoke of the witness being weak (pp 9 and 10). He said that he wanted to let this person know that he was not "fucking around" and that if he came to court he would be "fucked up for ever" (p 10). He agreed that if something were to be done it must be before he was released; he spoke of his new barrister who was in the process of reviewing the brief, and said he wanted to speak with him to see what he thought. He was concerned that the undercover operative not be arrested over this, and he spoke of not knowing whether there were 24-hour cameras "down in there watching" (pp 11 and 12). The undercover operative said not to worry about him, to which the applicant said, "Yeah sweet. Look its totally fuckin … mate, either way, I don't care which way it rolls … it's totally up to your fuckin self bro you know what I mean." (p 12).
39 There was conversation about the prospects of successfully defending the trial and the need for a plan B which the applicant described in the following way, "Plan B is I'll have this cunt fucked up badly. If he turns up at court the cunt coz he’s just a fucking weak cunt. I’ll send some fuckin cunt round." (p 14). At page 15 the applicant spoke of giving the witness a hotshot of heroin. At page 19 he said, "Somehow this cunt’s gonna go.”
40 At page 21 he said, "I reckon he's gotta be flogged now bro, flogged before we even get to court just to let the cunt know if he goes to court the cunt next time it's for ever bro goneski, iced for ever.” He spoke of wanting this before the 17th, and when asked how bad he wanted them "banged up ", he said, "Oh smash the cunts up much as you fuckin and want bro. It won't take much to fuck this dickhead up. He’ll ’crumple like a fuckin deck of cards bro. Give him a good touch up bro, give the cunt a good touch up, bro. You know."
41 When asked whether he wanted one or both of these witnesses dealt with he said at page 21, "Depends how you get ‘em, mate, if you get ‘em both at the same time, who gives a fuck."
42 When asked whether he wanted them in hospital he said at page 22, "Yeah, that's the fuckin go. I’d put the cunt fuckin in hospital, fuckin hard… and the good thing about this cunt bro him and being a fuckin dealer bro is it could have come from anywhere …"
43 In the exchange thereafter the applicant expressed concern about the proposed victim learning that he instigated the contact, and there followed discussion about the difficulty in proving the connection to him. The applicant spoke of the witness signing his own death warrant if he went to court, the breaking of his bones, his weakness, and that if it was his choice he would put “Glad” bags on both of their heads, but that he should be just flogged and have his jaw and collarbone and a few other things broken. There was discussion about injury to be caused to the female witness, so that both end up in the casualty ward. The reference to “Glad” bags is, I accept, a reference to plastic disposable garbage bags.
44 These words attributed to the applicant were clearly within the hearing of where he sat in the dock as the recording was played.
45 When the court resumed on 23 April 2008, counsel for the applicant, in his presence, announced the following,
Your Honour there’s been some developments overnight and I’ve just received firm instructions this morning from my client as a result an offer has been put to the Crown, the Crown needs, whilst I understand is favourable, needs to get some instructions. As I understand it and not meaning to speak for the Crown but there’s an appointment at 10.30 to do so.
46 The appointment was with the Director of Public Prosecutions. I stood the matter down until 11.30am. The transcript records that counsel referred to issues in an agreed statement of facts, with the suggestion that the matter continue the following day to allow the parties to resolve those questions. The transcript also records that after this I allowed counsel to speak with his client before he was removed to the cells.
47 When the matter was mentioned later that morning counsel announced, again in the presence of the applicant,
…, the matter’s been shortened your Honour, there’s an agreement between the accused and the Crown now to plead to three substantive offences, have two others taken on a form and three will be no billed. What I would ask your Honour is your Honour to stand it over until tomorrow to give us some time bearing in mind there’s been a few different sets of facts floating around and the indictment’s changed and so forth to come to an agreed statement of facts and we should be able to present that to your Honour and not take too much of your Honour’s time in the morning, very, very short.
48 I stood the matter over to the following morning at 10.00am for arraignment upon the fresh indictment, which had not yet been prepared. The transcript of 24 April 2008 records counsel informing the court that the statement of facts was yet to be agreed, and I stood the matter down until later in the morning. Upon resumption the applicant was arraigned upon the fresh indictment, pleaded guilty to all three counts, and confirmed that he wanted the two additional offences to be taken into account on sentence.
49 The agreed statement of facts was tendered and marked Exhibit A.
50 In my opinion, if the evidence presented to me at that point was to be accepted beyond reasonable doubt, the Crown had a formidable case to present at trial, including the evidence of the initial offence that ultimately led to the efforts to curtail the subsequent prosecution, the evidence of the woman Murphy with whom the applicant pursued that course, the electronic product of the conversation between the under cover operative and Renee Murphy on 25 November 2006, the electronic product harvested from the monitoring of the conversation on 6 December 2006 between the undercover operative, Murphy, and the applicant, and the earlier telephone conversations.
51 The applicant advances the following facts in his affidavit:
· He was arrested on 8 September 2006 and has remained in custody since that time;
· His matter was listed for trial before me in April 2008, when his legal representatives sought to have excluded the listening device material;
· When I allowed the use of the listening device material his counsel told him he would go down on all charges and would receive a long sentence of imprisonment, whereupon he panicked and told his counsel to negotiate with the Crown;
· Until that ruling, allowing the listening device material to be admitted, he had not been informed that he would lose the trial;
· In light of the sentence of 12 months imprisonment suffered by his co-accused who had pleaded guilty, he was expecting a sentence of imprisonment of no more than 2 years, which he had all but served;
· On or about the morning of 24 April 2008, his counsel told him that he had prepared the “best facts” upon which he would plead guilty, and wrote out instructions for him, which he signed when asked to do so, together with the statement of facts;
· At the time he protested that he did not want to plead guilty to the “detain offence”, and wanted to plead guilty to the conspiracy charge only, to which his counsel said repeatedly not to worry about the charge because it was nothing;
· Whilst always maintaining his innocence to his legal representatives, he acted upon their advice and pleaded guilty without properly considering the offences to which he was pleading guilty, wanting to be released as soon as possible;
· Notwithstanding that he told his counsel of his “dislike” of the facts which he signed, he was not told that he should plead not guilty and proceed to trial, and he was not told that if he did not agree with the facts he need not sign them;
· He was not told of the elements of the conspiracy offence upon which one might be found guilty, and constantly maintained to his legal representatives that he reached no agreement with the undercover operative;
· He has always maintained his innocence, but was cornered into pleading guilty by his counsel who for the first time told him “at the drop of a hat” that he would lose on all charges, whereupon he formed the view that he had no alternative but to accept his advice.· After pleading guilty in circumstances in which he did not have time to fully consider his position, he returned to gaol where he had the opportunity to properly reflect upon his decision;
52 In his evidence on 14 November 2008 the applicant acknowledged his affidavit with specific reference to paragraph 8 in which he claims that he pleaded guilty in anticipation of a sentence of 2 years imprisonment, which he had all but served, instead of 8 to 10 years to which he was exposed for something that he did not do.
53 The applicant resumed his evidence on 25 November 2008 after the Crown presented the affidavit sworn on 24 October 2008 by the applicant’s former counsel, Geoffrey Price, and the affidavit affirmed on 14 November 2008 by his instructing solicitor Francis McGowan.
54 The applicant said that he’d read the affidavit of Mr Price, and was then examined upon its content.
55 The affidavit represents that during 2007 Mr Price was at Parklea gaol with Mr Patrick Conaghan, solicitor, to see another client. He there met the applicant who told him that he was represented by a barrister instructed by Ms McGowan. He asked Mr Price if he would represent him. Mr Price said that he often worked with Ms McGowan and told the applicant that he would speak to her. He did so, and later accepted a brief to appear for the applicant in his trial: Paragraphs [4] – [8]. The applicant acknowledged that they met in these circumstances, but said that he agreed for Mr Price to represent him. The import of his evidence was that he was not the person who initiated the arrangement.
56 Mr Price said that he had a conference with the applicant and Ms McGowan on or about 27 July 2007 at Parklea, during which the applicant pressed his dissatisfaction with his then representatives who he believed were not acting in his best interests. He said to Mr Price that he should not have been in custody for these matters: Paragraph [9]. The applicant acknowledged this conference, and confirmed that he was unhappy with the people then representing him and that he told Mr Price he was innocent.
57 Mr Price said that there were several delays in the matter from the service of additional listening device material and decisions by the Crown to proceed on fresh charges against the applicant and his brother, Gary Lawson. The Crown’s intention to prosecute them jointly was resisted, and ultimately the Crown decided not to follow that course: Paragraph [10]. The applicant agreed with that history.
58 Mr Price said that the applicant telephoned him directly on several occasions complaining about Ms McGowan, whereupon he told him that if she ceased to act, so would he. The complaints eventually stopped and the applicant’s focus turned to the trial: Paragraphs [11] & [12]. The applicant agreed that he made telephone calls to Mr Price to find out what was going on with the case. He said that he did not discuss the “nitty gritty” of the case in those telephone conversations, but once the date was set, he focused upon the trial.
59 Mr Price said that he visited the applicant several times in gaol with the solicitor; the applicant made no complaints about his handling of the matter: Paragraph [13]. The applicant claimed that apart from the two occasions mentioned earlier, he saw Mr Price only a couple of days before the start of the trial. The conference was of about ½ an hour, during which Mr Price said that they were ready for the trial, and confirmed that he would be pleading not guilty. There were no discussions regarding tactics. He told Mr Price that he’d not heard the tape of the conversation of 6 December 2006. Mr Price said that he had played it and could not make much sense of it.
60 Mr Price said that from the outset he described the Crown case as substantial, comprising the evidence of the conversation on 6 December 2006, the telephone intercepts, evidence anticipated from the undercover operative, from his co-accused Renee Murphy, and from the alleged victims Rumble and Randle. He advised the applicant that there was some chance that the recording of the conversation on 6 December 2006 would not be admitted because of its poor quality, whereupon the applicant appeared to be encouraged and commented that he did not believe his co-accused would give evidence: Paragraphs [14] & [15]. The applicant denied that there was any advice given to him at the gaol that the Crown case was substantial. He said that Mr Price did not have a complete copy of the brief. He agreed that he was told this at some time when he was at court but not at the gaol, and not at the outset of their contact with each other. He agreed that he was encouraged with the advice that the tape could be challenged because of its poor quality.
61 Mr Price said that before the commencement of the trial he argued a lengthy voir dire challenging the quality of the listening device tape: Paragraph [17]. The applicant said that the first time he heard the tape was when it was played in court.
62 Mr Price said that on 23 April 2008 he had a conference with Renee Murphy in the presence of Ms McGowan who said that she was prepared to given evidence against the applicant, consistently with her statement, corroborating the listening device tape. He said he informed the applicant of this: Paragraph [18]. The applicant said that he did not know of the conference, and could not recall if Mr Price so informed him. He said there was a discussion about what had occurred on 22 April 2008, and recalls that he gave Mr Price a preliminary indication of his concerns.
63 Mr Price said that at the completion of the voir dire the Court ruled that the recording of the conversation on 6 December 2006 was of sufficient quality to be admissible, and that after the judgement was delivered the court adjourned. The applicant then called him and Ms McGowan to the dock and asked what Mr Price thought. Mr Price told him that the case was now a lot stronger with the admission of the recording of the conversation, and he instructed Mr Price to get him the best deal that he could. The applicant said that he wanted to change his plea. Mr Price said that he would speak with the Crown during the adjournment: Paragraphs [19] – [29]. The applicant acknowledged that on the 22 April 2008 he spoke with Mr Price and Ms McGowan from the dock about the tape being allowed in, whereupon Mr Price said,
… the tapes going to go in as evidence against you. You’re basically fucked; you’ll be found guilty on all charges; you’ll be looking at big numbers.
64 The applicant said that this was the first time he had received such advice, and he did not know what to think. He thought Mr Price was speaking of imprisonment of 10 years or more. After hearing this he asked Mr Price to get him a deal. He wanted the minimum sentence possible. He agreed that he said that he wanted to change his plea, for the reason that he did not want to take the matter to trial after hearing the advice from Mr Price. He said that this was so, even though he does not believe that he committed any of the offences. He said that he was shattered, had an empty feeling, and did not know what to think. He said that there may have been discussions down in the cells, but could not recall. There were discussions in the cells the next day regarding the agreed facts, without Ms McGowan he believes. They discussed the agreed facts in the cells before he came up to court. He said that he told Mr Price that he would plead guilty to the conspiracy charges if the Crown dropped the others. He took this course because he knew his co-accused was sentenced to 12 months for the conspiracy, and he was expecting a similar term. The following day he became aware of the charge of detain for advantage and complained that he did not detain anybody. Mr Price is alleged to have said that he should not worry; that the charge was nothing. When asked why he continued with the decision to plead guilty, he said,
Because when he read the agreed facts out to me, it was the lowest level of detain.
65 Mr Price said that the applicant signed written instructions confirming his instructions to change his pleas to guilty, annexure C to the affidavit: Paragraph [31]. The applicant said that he did not write the document, but signed his name where it appears. He was in the dock when he signed. He first saw the document when they were discussing the conspiracy and detain for advantage charges. Mr Price read it to him after writing it out in front of him.
66 Mr Price said that after negotiations with the Crown a fresh indictment was prepared, annexure D to the affidavit, with the Form 1, annexure E. He explained the Form 1, and its contents in the presence of Ms McGowan. The applicant agreed with the contents: Paragraphs [32] & [33]. The applicant pleaded guilty to the three counts in the fresh indictment, with the two additional offences placed on the Form 1. The Crown no billed the remainder from the original indictment. Agreed facts were sent to Mr Price by email, and at 9.30am on 24 April 2008 with Ms McGowan he saw the applicant in the cells. Changes were discussed, noted by Ms McGowan on the document, annexure F to the affidavit. The document also has changes tracked using the facility for that purpose in the computer software. The Crown prepared a fresh set of facts reflecting the majority of the changes, and about 12.30pm Mr Price had a further conference with the applicant with Ms McGowan present. Although he commented that the facts did not read well for him, he sought no further changes when Mr Price commented upon the difficulty reducing it further. He then signed the document, annexure G to the affidavit: Paragraphs [34] - [42]. Mr Price said that the applicant did not express reservations about pleading guilty in accordance the negotiations concluded on his behalf, and said that he consistently informed the applicant that these were serious matters likely to result in a substantial sentence: Paragraphs [43] & [44]. In his evidence the applicant repeated that he has always maintained his innocence, but believed that he would be convicted and wanted to get a deal. He was not told what a Form 1 was, and did not know of it from past experience. He agreed that he signed the facts, but said that this occurred in the dock. He could not recall if he was shown the document in the cells. He agreed that there was conversation in terms of that described by Mr Price, but added that Mr Price said he had spent all night trying to get the best agreed facts. He said that he did not know what the agreed facts were, but signed them because he asked for a deal and thought that this was how it unfolded. He did not think he would be getting sentenced on the agreed facts, but only on the charges.
67 Annexure A to the affidavit is a pre-sentence report written on 24 July 2008 by an officer of the Probation and Parole Service. In that document the applicant is attributed with having read and agreed with the “police facts”, but then began to disagree with parts of them and suggested that they were fabricated. The report continues,
He denied responsibility for all areas of the offence except that he went to the victim’s unit. The offender asserted that he only went to the victim’s unit to confront him about allegedly selling heroin to his niece and stated that he is deeply sorry if he affected the victim’s partner in any way. Mr Lawson also declared that his partner at the time took it upon herself to get involved in this matter and he was unaware of what she was organising. He maintained that he did not want any of the victims to be hurt. The offender went on to say that he realises the seriousness of the matter and asserted that “this will never happen again”.
68 The applicant said that the officer had a copy of his charges and was making notes during their conversation. When he asked why the applicant pleaded guilty, he repeated what Mr Price said to him, including that the worst scenario was a sentence of 4 to 5 years. He said that he did not conspire with anybody. He said that he saw the report when Mr Price showed it to him in July 2008.
69 In response to the affidavit from the applicant, Mr Price denied that the applicant was told by him or in his presence that he would be found guilty of all offences, and that he would be “looking at a big number”. At no time did the applicant say that he did not wish to plead guilty to the detain for advantage offence. When asked what the offence meant, he explained to the applicant that it related to the grabbing and detaining of Rhonda Rumble at her house against her will, that this was a serious offence with a maximum penalty of 14 years, but that the detention was of short duration without any substantial injury to the victim; he explained that it was in respect of this offence that the two additional offences were to be taken into account. He explained that the more serious charges were the two counts of conspiracy. He denied that the applicant was told not to worry about the charge of detain for advantage and that it was nothing: Paragraphs [45] - [51].
70 Mr Price said that the applicant was told on several occasions that there was a substantial body of evidence against him, including the listening device product, the telephone intercepts, video evidence, a triple “0” call, police evidence, and evidence from the victims, the undercover police officer, and the co-accused. The applicant did not protest his dislike of the agreed facts. He did not persist in telling the applicant not to worry, and that it was nothing. The applicant was informed from the outset that he was signing agreed facts, in the preparation of which he participated, aware that he was not obliged to sign them unless satisfied that they were true and correct: Paragraphs [52] – [55]. The applicant was told that the conspiracy charges related to his agreement with Renee Murphy to have the undercover operative Sean inflict serious harm upon two Crown witnesses: Paragraph [56].
71 Significantly, regarding the assertion by the applicant that he made no arrangement with the undercover operative, the affidavit continues at paragraph [57]:
The Applicant’s claim is false. The Applicant agreed that his voice could be heard on the listening device tape instructing the Undercover Operative to bash two Crown witnesses. Contained within that tape the Applicant is heard instructing the UC operative or agreeing to suggestions by the UC operative to: “put them both in the hospital”, “flog the cunt hard”, “break bones”, “break jaws”, “break ribs”, and “break collar bones”.
72 The first notice to Mr Price of an intention to reverse or traverse the pleas of guilty was on the morning of the proposed sentence hearing, 25 July 2008, when he saw the pre-sentence report: Paragraph [58]. Thereupon he conferred with the applicant in the presence of Ms McGowan and brought to his attention the passage in the report quoted above. The applicant denied saying those things to the officer, but then represented that he did not say exactly those things, and although he said something like that he did not think that the officer would include the information in the report. When Mr Price indicated the potential for embarrassment the applicant wanted him to continue to represent him, that he wanted to maintain his pleas of guilty, and that he wanted the proceedings to be concluded that day. Mr Price would not appear further, and was later given leave to withdraw: Paragraphs [59] – [88].
73 In his evidence the applicant claimed that when Mr Price brought the report to his attention, he asked him: “What’ve you fucking done?” In response the applicant told him that he did not detain anyone and pleaded guilty only because they were dong a deal. He denied criticising the probation and parole service officer who wrote the report, and denied the claims attributed to him regarding the officer He agreed that Mr Price told him the pre-sentence report was contrary to the written instructions and the agreed facts. He agreed that Mr Price told him he would need to withdraw from the matter, and agreed that he said he wanted to continue with the pleas of guilty, with the explanation for saying so that he did not know what his obligations were at that stage.
74 He denied having been taken through the elements of the charges.
75 In response to cross examination he agreed that by 2007 he was aware of the range of charges he was facing, but that was about all. He had read Renee Murphy’s statement, but he did not recall seeing anything else from the brief of evidence assembled against him. He claimed that he received no information from Mr Price or Ms McGowan about the case against him. He did not read any other statements. He was not worried about Rumble and Minett giving evidence against him.
76 He acknowledged the sequence of the proceedings leading to his pleas of guilty, and agreed that he heard the tape of the conversation on 6 December 2006 when it was played in court, but claimed that he could not pick anything up from it. He claimed that he did not recognise any of the voices.
77 He recalled the meeting in the gaol. He said the undercover operative Sean was putting things to him, but he responded saying that he would beat the charges at court.
78 He claimed that he was unaware that the Crown case was strong, but knew that the tape of the conversation contained substantial evidence, that Murphy had pleaded guilt to conspiring with him to inflict grievous bodily harm upon Minett, but knew that this had nothing to do with him.
79 He answered questions in terms that he did not know that he would get a better outcome if he pleaded guilty, but spoke of advice regarding this from another inmate. He did not want to take the risk of being found guilty, and knew that there was benefit in having the lesser charges. He claimed that Mr Price told him that he had to cut a deal.
80 He acknowledged his experience of the criminal justice system.
81 Mr Price was called to give evidence on 25 November 2008. He said that it was his understanding in April 2008 that the applicant had a copy of the prosecution brief.
82 He made some adjustments to his affidavit, drawing upon the transcript of the proceedings on 22, 23 and 24 April 2008 leading to the pleas of guilty.
83 He said that he went through the elements of the charges with the applicant, who gave initial instructions to make the Crown prove its case. His later instructions were that the applicant wanted to change his position, and that he should negotiate with the Crown. He advised the applicant that there would some discount for his pleas of guilty, although this was limited because they were not early. He did not specify a percentage, and did not specify the anticipated sentences, but offered a range of 4 to 6 years. Until he saw the pre-sentence report, he was unaware that the applicant had expressed any concerns about the negotiated pleas, although he was concerned about the outcome.
84 In cross examination he was taken to annexure C to his affidavit, the written instructions, and the phrase (emphasis added) “ … have instructed my solicitor and Barrister to enter pleas of Guilty …”
85 It was suggested that the word “my” was in fact written “by”, with the implication that this word is consistent with Mr Price and Ms McGowan having pressed the applicant to take the course he did. This was not accepted. Mr Price maintained that it was his recollection that the word is “my”, which he agreed could be mistaken by the word “by” because of the way it was written.
86 He acknowledged that he did not have a brief of evidence on 27 July 2007, but referred to the evolving nature of the prosecution, the piece meal service of the brief, and the initial intention of the Crown that the applicant be tried jointly with his brother.
87 His recollection is that he saw the applicant at least four times in custody. He assessed the applicant to be active and intelligent, asking questions about aspects of the brief and the charges. Until 22 April 2008 the applicant steadfastly maintained his pleas of not guilty. The option of pleading guilty was discussed when they first met, the applicant was not interested.
88 On 27 January 2009 Mr Price resumed his evidence. He faced questions regarding his understanding of the conspiracy alleged by the Crown. He rejected the proposition that he did not tell the applicant that this was a strong Crown case until the trial was about to commence. He said that he took instructions upon the content of the transcript of the conversation on 6 December 2006 because he could not hear the words recorded until he heard the compact disc played in court.
89 Mr Price’s instructing solicitor, Frances McGowan, then gave evidence. Her affidavit was of only two paragraphs in which she adopted the content of Mr Price’s affidavit, annexure A to hers. She agreed with Mr Price’s affidavit. She too spoke of the evolving nature of the prosecution, and the delay in the service of quite substantial material from the Crown. She could not recall whether she provided a complete copy to the applicant. She said that she took the applicant through the transcript of the recorded conversation, and spoke of having attended upon him many times. She attended with counsel on two or more occasions. Her notes of attendances were not sufficient for definitive evidence upon the number of times she attended, or the duration of their conferences in every case.
90 Her recollection was incomplete, but she did recall that the applicant maintained his innocence but would plead to lesser offences if they could be negotiated. She did not accept that the applicant was not told that the Crown case was substantial until 24 April 2008.
91 She maintained that counsel conferred with the applicant, and that he was taken through parts of the brief in their conferences. According to her usual practice, her client would have had a substantial portion of the brief. She could not recall giving him witness statements but that is her usual practice. When it was suggested that he had little more than the charges and the police facts, she responded that she could not agree, and that her recollection was that he had a substantial portion of the brief.
92 She described events on 22 April 2008. She said that after the indication from the bench that the application to reject the tape would fail the applicant called them to the dock and said that he wanted to plead guilty, subject to agreement upon the facts. She said that Mr Price went to him first and she followed. She spoke of the attendance upon the applicant with the facts prepared by the Crown.
93 She produced her notes on conference on 17 April 2008, the Thursday before the trial was due to commence. The note includes a reference to a voir dire, and to the poor quality of the compact disc with the “UC”. The names of the witnesses to be called by the Crown are also included in the notes, noted down as they were discussed.
Submissions
94 Both counsel presented written submissions.
95 Those on behalf of the applicant expressly concern the second and third counts on the indictment to which the applicant pleaded guilty, although I do not understand the application to be confined to the pleas of guilty entered to those offences. The second and third counts are for the offences of conspiracy. The charges are identical, other than for the names of the persons intended to suffer grievous bodily harm.
96 It is submitted that there was no evidence of an intention to carry out the objective of inflicting grievous bodily harm upon either of Chris Minett or Rhonda Rumble named in the charges, and at best the evidence would show no more than discussions regarding that outcome, which is insufficient to establish the offence even if there was an expectation that such a crime would be committed.
97 It is said that the agreed facts do not extend to the elements that must be established by the Crown beyond reasonable doubt to prove that the offences were committed.
98 Extracts are drawn from the conversation between the undercover operative and Murphy which go no further, it is said, than to discuss what she would like to occur, namely, a threat of violence but nothing beyond the threat.
99 The conversation at Parklea gaol on 6 December 2006 did not include any agreement between Murphy and the applicant, but was a discussion of options that took place between the applicant and the undercover operative in the presence of Murphy. Consistent with this view of the exchange is the telephone conversation between the undercover operative and Murphy after the visit to the gaol, in the course of which the undercover operative spoke of the number of times the applicant changed his mind about what he wanted done.
100 The role of the undercover police officer is said to limit the scope of the evidence, for he would not be permitted to mislead Murphy in his role in the conduct of this controlled operation, and, moreover, it could not be said at any stage that the police officer had an intention to carry out any agreement toward the alleged outcome.
101 Subsequent telephone conversations between the applicant and Murphy are said to support the proposition that there was no agreement reached.
102 Finally, it was said that there must have been shown an intention to commit the offence particularised. General discussions and preparatory acts are not enough. Counsel referred to the representation by the undercover operative that he would require payment for his services, at which point, it is said, neither the applicant nor Murphy were prepared to pay and the applicant indicated in the what are said to be the clearest terms that he did not want the undercover operative to do anything.
103 Counsel made oral submissions at the conclusion of the evidence addressing the sequence leading to the pleas of guilty. He reminded me of the background of the proceedings during which the applicant maintained his innocence until he completely reversed his position on 24 April 2008. What caused this was the advice given by Mr Price that he would be found guilty of all charges, and would suffer a lengthy period of imprisonment. If this advice had merit, it should have been given well before then.
104 Counsel submitted that there was a very real issue as to whether there was any unlawful combination that would justify either of the charges of conspiracy. Whatever might be said of the conspiracy to pervert justice, the conspiracies to inflict grievous bodily harm could not be made out. This was a classic case for a request for particulars, which was never made. The applicant was under pressures in the courtroom to make a decision, upon inadequate information, with questionable advice. The first time that he heard the tape recording from 6 December 2006 was in court. He was, in the circumstances, overwhelmed.
105 There were said to be such inconsistencies between the evidence of Mr Price and Ms McGowan that the evidence of the applicant was to be preferred over them.
106 Accepting that the tape was capable to informing the court what had passed at that meeting, it was at best inferentially relevant to the issue of guilt.
107 The submissions then spoke to the advice given to the applicant in the week before the trial was to commence. Counsel correctly pointed to the inadequacy of the notes recorded at that conference. There was no satisfactory evidence to which the court might turn to find that the applicant was provided with a copy of the brief of evidence served by the prosecution. It was submitted that it was apparent that the applicant had full confidence in Mr Price and relied upon him without access to the brief of evidence, thus elevating the significance of the advice he was given prior to the pleas of guilty.
108 The Crown submitted that there was ample evidence upon which a court would find the existence of the agreements charged, and the participation of the applicant in those agreements. There could be no other inference drawn from the evidence but that the applicant conspired with his co-accused to inflict grievous bodily harm on Minett and Rumble. So much is clear from the conversation at Parklea gaol on 6 December 2006. The applicant appears to retreat, only when he exhibits suspicion that the person Sean might be from the police. There was then a conspiracy in place, and the suspicion exhibited provides further evidence of its existence, with the applicant and Murphy unsure as to whether they can trust the undercover operative to carry out their plan. There was no retreat by the applicant from the agreement with Murphy, only concern expressed about the veracity of the undercover operative.
109 In his oral submissions the Crown urged the view that the applicant made the forensic choice to plead guilty when faced with the admission of the taped conversation in evidence. He recognised the peril he faced, and instructed his counsel to negotiate a plea agreement, which was ultimately successful and of significant advantage to the applicant.
110 It would have been obvious to him, even without legal training, that the utterances that fell from him during the meeting at Parklea gaol provided compelling evidence of his guilt. He had sufficient experience of the criminal justice system to appreciate the advantage he sought and gained from the successful negotiations entered on his behalf.
111 The Crown pointed to the evidence that the applicant participated in the negotiations through his counsel, and the contrast between the diluted facts and the inferences available from the evidence of the conversation at Parklea.
The Relevant Principles & Their Application
112 The applicant bears the onus of showing why he should have leave to withdraw these pleas of guilty: R v Abbruzzese [2006] NSWCCA 207.
113 The relevant principles were summarised in R v Van (2002) 129 A Crim R 229 at [48]. Although dealing with the question of an appeal from a conviction entered as a consequence of a plea of guilty, they are clearly of application to the decision I must make as to whether the Applicant should have the leave he seeks: Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at [15]. There is a more recent discussion of the relevant principles in R v Stephen John Rae (No 2) [2005] NSWCCA 380 at [21] to [24] to which the Crown invited my attention.
114 A person may plead guilty, whether or not they believe they are guilty, in anticipation of a more lenient sentence, with an understanding of the nature of the charge he was intending to admit, without the influence of intimidation or improper influence or fraud.
115 The court is entitled to act upon the pleas of guilty if entered in open court by the applicant, acting with a sound mind and understanding of the matters to which he was pleading guilty, in the exercise of his free choice made in his own interests. There is no miscarriage of justice if the Court does act upon such pleas of guilty even if the person entering the plea is not guilty of the offence: Meissner v R (1995) 184 CLR 132 at 141.
116 See also Johnston v R [2009] NSWCCA 82.
Findings
117 As I indicated earlier, in my assessment of the evidence presented to me, if it were to be accepted beyond reasonable doubt, the applicant would have had a formidable challenge facing a trial upon the charges to which he pleaded guilty and those to be taken into account.
118 I am not persuaded that the evidence does not support the conspiracies to which he pleaded guilty. There is direct evidence of the conversations between the undercover operative and Murphy, followed a few days later on 6 December 2006 with the conversation at Parklea gaol, with the evidence to be anticipated from the victims, and the co-accused Murphy. There are also the telephone intercepts captured up to the time of the meeting in the gaol.
119 The import of the applicant’s evidence is that he was for the first time given the advice that the Crown case was strong, and that until he was given advice in graphic terms by his counsel that he had no other option but to plead guilty he was expecting to defend his trial. I do not accept that to be the case. I accept the evidence of Mr Price that he made the applicant aware of the substantial case he faced at trial, and that the conference on 17 April 2008 included discussion regarding the quality of the recording of the conversation at Parklea gaol on 6 December 2006, and the anticipation that the evidence would be excluded because the conversation could not be heard. If that was to be excluded, the Crown case would have been less compelling, not because there was no evidence of the conversation to which those participating could speak, but because there was no electronic recording available that would put beyond doubt what was said. When the recording was played in open court, and it was apparent that much of the incriminating material could be heard, the position for the applicant changed significantly.
120 I find that the applicant made his decision to plead guilty to the charges in the fresh indictment aware of his options and recognising his guilt. It was not the case that the change in circumstances came upon him suddenly, and without sufficient time to reflect upon his predicament. The trial was to commence before me on 22 April 2008. There was a voir dire, upon the admissibility of the recording of the conversation, and that was played in court. I made clear that I heard incriminating words falling from the applicant. Although it is said that I ruled, and gave judgement, that is not so. I gave a clear indication however that the recording was of sufficient quality that it would go to the jury, but that there were portions that were indecipherable, which had been transcribed; those parts of the transcript ought to have been excised and accordingly the parties were allowed time to attend to this.
121 There remained the other challenges to evidence. First, the telephone intercepts were said to be inadmissible hearsay, but the discussions following revealed that they were not to be led for any hearsay purpose, but as direct evidence of conversations relevant to the existence of the conspiracies charged. Counsel required time overnight to consider this position, and he was allowed this accommodation. Secondly, there were submissions to be developed with regard to the sufficiency of evidence relevant to the charges of conspiracy. The court adjourned for the day in anticipation of the challenges remaining to be argued further before a jury was selected.
122 The next morning, 23 April 2008, counsel informed me that he had fresh instructions, and had put an offer to the Crown that required a decision from the Director of Public Prosecutions. Time was allowed for this, and for the parties to negotiate the terms of the agreed facts upon which sentences would be required. Later that day the matter was resolved, and the parties were allowed the day to settle the documents.
123 On 24 April 2008 the matter resumed. The applicant was presented on the fresh indictment and he pleaded guilty. I took him through the offences on the Form 1 and he confirmed that he wished them to be taken into account and admitted his guilt in respect of them. In my assessment his acknowledgement of guilt in each case was unequivocal.
124 The submission made on the applicant’s behalf is that he was under pressure because of what he said that Mr Price advised him. I do not accept that to have been so. I accept that Mr Price was acting in response to the applicant when he sought his attention and gave instructions to negotiate an arrangement beneficial to him.
125 Rather than the applicant having been compelled into a course of action under pressure, these pleas were agreed over a period of three days, in the course of which the applicant was able to consider his position as matters evolved, including the audible presentation of his incriminating participation in the conversation with the undercover operative, and provide his instructions in light of that evidence. The proposition implicit in the evidence of the applicant, that upon the playing of the recording he was confronted with the decision whether or not to plead guilty, whilst standing in the dock in the court room, and without the benefit of time to reflect upon his decision, does not sit comfortably at all with the sequence of the events as they unfolded over the three days to the point when the pleas of guilty were entered.
126 I am satisfied that the applicant did understand and appreciate the nature of the charges to which he pleaded guilty, and that his decision to so plead was freely and voluntarily made in his interests after having received appropriate advice from his counsel. I am satisfied that there was no threat, or inappropriate pressure applied to the applicant. I do not accept that the word “by” was included in the written instructions, with the implication of coercion. The use of that word is entirely inconsistent with the context in which it appears. I accept that the word is to be read as “my”.
127 I do not believe that the integrity of the pleas of guilty and the acknowledgement of guilt to the Form 1 offences were compromised by any of the circumstances surrounding them, and I am not of the view that a miscarriage of justice would arise from the court acting upon them.
128 I shall not grant the application to withdraw the pleas of guilty.
129 There remains a question regarding the disposition of the charges included in the Form 1.
130 The jurisdiction of the court to deal with these additionl charges was invoked when the applicant signed the Form 1 and it was presented to the court by the Crown, after it was signed by a person authorised to do so under s 32(5) of the Crimes (Sentencing Procedure) Act. The document was presented after the applicant pleaded guilty to the principal offence, and the other two offences in the fresh indictment: s 32(2). The applicant admitted his guilty in respect of these additional offences, and confirmed that he wanted them to be taken into account: s 33(2)(a). I am of the view that it is appropriate to take these additional offences into account on sentence for the principal offence: s 33(2)(b).
131 The reasons for coming to the decision that it is appropriate to take these additional offences into account include the connection between them and the principal offence and the further offences on the indictment. All of the misconduct upon which the applicant has been presented to the court occurred in sequence evolving from when it is alleged that he first robbed the man Minett of heroin. The additional offences arose from the intended intimidation of witnesses prepared to speak against the applicant for his conduct during that sequence.
132 For the reasons expressed regarding the application to withdraw the pleas of guilty, I am of the view that the applicant should be held to the decision he made to have the court take the additional offences into account and his acknowledgment that he is guilty of them.
2) The additional offences included in the Form 1 signed by the applicant and on behalf of the Director of Public Prosecutions, shall be taken into account upon the determination of sentence for the principal offence, count 1 in the indictment.1) The application to withdraw the pleas of guilty entered to the three counts on the indictment upon which the applicant was arraigned on 24 April 2008 is refused.
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