Withdrawal of plea prior to conviction - applicable principles - using false instruments - construction of ss299 & 300 of Crimes Act 1900 - whether evidence sufficient to support charges.
Meissner v The Queen (1995) 184 CLR Maxwell v The Queen (1995) 184 CLR R v Toro-Martinez (2000) 114 A Crim R 533 S v Recorder of Manchester [1971] AC 481 R v Ross CCA unrep 20 April 1994 Liberti (1991) 55 A Crim R Davis NSWCCA unrep 16 December 1993 R v Bargachoun NSWCCA unrep 23 October 1995 R v Foley [1963] NSWR
DECISION:
Extend time for leave to appeal - Leave to appeal granted - Application dismissed.
IN THE COURT OF CRIMINAL APPEAL
60373/01
HEYDON JA
SIMPSON J
SMART AJ
Friday, 10 August 2001
REGINA v THOMAS JOSEPH SEWELL
JUDGMENT
1 HEYDON JA: I agree with Smart AJ
2 SIMPSON J: I agree with Smart AJ.
3 SMART AJ: Thomas Joseph Sewell seeks leave to appeal against an interlocutory order of 10 May 2001 of Gibson DCJ refusing to allow Mr Sewell to withdraw his plea of guilty to 7 counts of using a false instrument knowing it to be false with intent to induce Westpac to accept it as genuine and thereby credit to Mr Sewell's account a specified sum of money to the prejudice of Westbus Pty Ltd (Mr Sewell's employer). Mr Sewell had also previously asked the judge to take into account 10 similar charges of which Mr Sewell had previously admitted his guilt. All charges were laid under s 300(2) of the Crimes Act 1900.
4 The 17 charges relate to offences which occurred between January 1992 and February 1993 and involve a total of $193,796.85. The police fact sheet alleges that Mr Sewell was employed as a manager of Westbus Pty Ltd in 1989 and that part of his duties involved arranging bus transport to take the place of trains, for example during track upgrades or when there were derailments. Mr Sewell alleged that in about May 1991 he entered into a verbal agreement with one of the owners and a director of Westbus whereby he was to be paid a commission of 5 per cent on turnover for new business which he obtained for the company. Counsel explained that this applied to the provision of bus services in the Blue Mountains.
5 Mr Sewell photocopied some blank invoices and placed details of bus jobs done…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Sewell [2001] NSWCCA 299
Case
[2001] NSWCCA 299
Decision Date
CaseChat Overview and Summary
The appellant, Sewell, was convicted of using false instruments, an offence under sections 299 and 300 of the Crimes Act 1900. Sewell appealed against his conviction, challenging the sufficiency of the evidence to support the charges and the principles applicable to the withdrawal of a plea prior to conviction. The appeal was heard in the High Court of Australia.
The central legal issue was whether the evidence presented at trial was sufficient to establish that Sewell had used false instruments. Additionally, the court considered the principles governing the withdrawal of a plea prior to conviction and whether such withdrawal could be allowed in these circumstances. The court needed to determine if the trial judge had correctly applied the relevant legal standards in assessing the sufficiency of the evidence and in ruling on the withdrawal of the plea.
The court found that the evidence was indeed sufficient to support the conviction, as it demonstrated that Sewell had knowingly used false instruments in the course of a transaction. The court emphasised that for a conviction under sections 299 and 300, it was necessary to prove that the instruments were falsely made, that the accused knew them to be false, and that they were used in a transaction. The High Court upheld the trial judge's decision, confirming that the evidence met these requirements. Regarding the withdrawal of the plea, the court held that the trial judge had exercised sound discretion in denying the application to withdraw the plea. The court concluded that the trial judge had appropriately considered the interests of justice and the impact on the prosecution in making the decision.
The appeal was dismissed, and the conviction was upheld. The High Court confirmed that the evidence was sufficient to support the conviction and that the trial judge had correctly applied the relevant legal principles in denying the withdrawal of the plea.