Reed v The Queen

[2004] HCATrans 212

[2004] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M254 of 2003

B e t w e e n -

PHILIP EDWARD REED

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 12.45 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant with my learned friend, MS S. LEIGHFIELD.  (instructed by Patrick W. Dwyer)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR C.W. BEALE, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Mr Croucher.

MR CROUCHER:   If the Court pleases.  The questions on this application concern the appropriate principles for a court of appeal to apply in circumstances where an appeal against conviction is agitated where the applicant has pleaded guilty, but done so on the basis of flawed legal advice.  Added to this, in this particular case, is the unusual feature that it was not until the applicant was giving evidence in committal proceedings against his co‑accused after he pleaded guilty and after he had been sentenced, that it was disclosed for the first time that the remnants of what he believed to be, the material that he had pressed, in fact turned out on testing not to be ecstasy.

GLEESON CJ:   What follows from that?

MR CROUCHER:   That goes to the question, if nothing else, of the arguable defence when one looks at the New South Wales approach, to which I will come to shortly.

GLEESON CJ:   He made a confession, did he not?

MR CROUCHER:   He, in effect, confessed to believing that what he was punching was ecstasy, yes.

GLEESON CJ:   What were the terms of his confession?  Let us go to that.

MR CROUCHER:   It was accepted that he believed ‑ ‑ ‑

GLEESON CJ:   Can you take us to what he actually said by way of confession?

MR CROUCHER:   I am sorry, your Honour, I did not understand you.

GLEESON CJ:   Can you take us to what admission he made?

MR CROUCHER:   Yes, there are in the application ‑ ‑ ‑

GLEESON CJ:   In his interview with the police.

MR CROUCHER:   Yes, in that first volume of the application book, your Honour.  In the record of interview which commences in the application book at page 32, it goes on for numerous pages, your Honours, but amongst those pages you will see, for example, that at page 115 of the application book at question 590:

And did he tell you what the powder was or - - -?

Well, I was quite confident it was Ecstasy.

Then he goes on and says:

That’s – that’s what we discussed in – in reference to the phenylacetic acid.  I believe that what’s he was attempting to make.

GLEESON CJ:   All right, so he admitted that believed that he was manufacturing ecstasy and he pleaded guilty to manufacturing ecstasy.

MR CROUCHER:   That is right.

GLEESON CJ:   Then he might have been right.  Maybe he was manufacturing ecstasy.

MR CROUCHER:   Yes, except that there is a real concern given the subsequent evidence that indeed the ecstasy or the material which he believed was the remnants of what he had punched was, indeed, not ecstasy.

GLEESON CJ:   Well, what would happen if a person pleaded guilty to an offence in the mistaken belief that there was an eyewitness who could prove the case against him and he finds out later, after he had pleaded guilty and been convicted, that the eyewitness was dead at the time he made his plea of guilty.  What follows from that?  It means the police could not have proved the case against him.

MR CROUCHER:   Yes.

GLEESON CJ:   So.

MR CROUCHER:   This aspect of the argument goes to whether or not he had an arguable defence and clearly on the material that was disclosed subsequently he did have an arguable defence to the ‑ ‑ ‑

GLEESON CJ:   All the material that was disclosed subsequently demonstrated was that the Crown could not have proved, if he had put it in issue, that what he was manufacturing was ecstasy.

MR CROUCHER:   Precisely, your Honour.

GLEESON CJ:   But it did not show that what he was manufacturing was not ecstasy.

MR CROUCHER:   That is so, your Honour.  Even if that is so, that must be linked with the question of flawed legal advice because the flawed legal advice was to the effect that it made no difference whether it was or it was not but, of course, it does because if, indeed, the Crown could not prove beyond reasonable doubt that it was ecstasy then at most they could prove an attempt, a different offence and that is the error in this case.

In coming to the view that it did not matter, his Honour Mr Justice Phillips who wrote the leading judgment applied the wrong test.  If I could take your Honours to page 258 of the application book, paragraph 25, and I will read down to line 52, his Honour said this:

For these reasons I see considerable force in the points taken by Mr McCardle in opposition to the present application for leave to appeal.  Yet there is another basis, I think, upon which this application must fail.  On the one hand, unless the statement of Kritsonis can be taken to be such, there is no evidence that the substance being handled by the applicant in March 1998 was ecstasy.  But on the other hand, nor is there any evidence that it was not - and that makes an important difference.

Wrong, we respectfully say.

Had there been evidence, objective evidence, that the substance being handled by the applicant was not ecstasy, there would be grounds, I think, for concluding that, in pleading guilty to the charge after receiving advice that it was enough that he believed the substance to be ecstasy - advice which, for present purposes, I am accepting was flawed - the applicant pleaded guilty when labouring under a relevant mistake.

Yes, we agree, but that overstates the test.  Reading on:

But that is not necessarily the case if, as here, the applicant can show only that he might have been labouring under a relevant mistake.  At best, the applicant demonstrates that he only believed that the substance that he handled was ecstasy; he has not demonstrated that it was not ecstasy.

Again, application of the wrong test.

GLEESON CJ:   What else might it have been?  One of the competing possibilities, he was being paid a dollar a tablet or somebody was getting a dollar a tablet for something that cost half a cent to manufacture.

MR CROUCHER:   Yes, there was evidence from the applicant himself in his record of interview in the statements, I think, to the effect that he believed or he was told by the other fellow that he was experimenting with an ecstasy‑like substance that, in fact, might have been legal.  He was experimenting, trying to make something – so that who knows, that may have been a possibility.  All we were told by the evidence was that it was not ecstasy.  The only ‑ ‑ ‑

GLEESON CJ:   Say that again?

MR CROUCHER:   That it was not ecstasy.

GLEESON CJ:   No, the evidence does not establish that it was not ecstasy.  The evidence is that when the police some time later came to ‑ ‑ ‑

MR CROUCHER:   I understand that point, your Honour.  I did not mean to put it in that way, that is what I meant to say.  The material that he believed was the remnants of what he had punched, and that was it.

GLEESON CJ:   His admission that he believed he was manufacturing ecstasy, and he set out to manufacture ecstasy, stands alongside the fact that for all we know he might have been manufacturing ecstasy.  His belief might have been true.

MR CROUCHER:   Maybe so, your Honour, but the question when applying the New South Wales approach, if I can call it that, which has been developed from the same line of authority of the Victorian approach, if I can call it that, has developed.  The findings made by the Court of Appeal would have been sufficient to set aside the plea of guilty.

Under the New South Wales approach, the fact that there was inappropriate legal advice, and that there was an arguable defence, the arguable defence being inability to prove that there was, in fact, ecstasy there - and in this case it was an unanswerable defence, there is no way they could ever have proved it ‑ leads to the conclusion that his plea of guilty to this offence is not attributable to a genuine consciousness of guilt of this offence.  It may be attributable to consciousness of guilt of doing something wrong in the sense of being involved in illicit drug trade.  That is different from consciousness of guilt of the particular offence with which he is charged and to which he has pleaded guilty on the basis of this false advice or erroneous advice.

So there are three elements to the New South Wales approach.  You need only an arguable defence.  It does not have to be a cast iron defence, an absolute winner, a lay‑down misère, only an arguable defence.  If I can take your Honours to the book of authorities, to Wilkes’ Case, for example, which is behind tab 2, and to paragraphs 45 to 46, there in the judgment of Justice Wood it says this:

The limited material available does, however, leave it possible to say that the identification evidence could have been tested in the way that counsel has now identified, that an issue could have arisen as to whether either or both John Wilkes and Payne had been involved either as principals in the first or second degree in the killing; and in so far as the evidence might have implicated the appellant as the offender, rather than those men, that a question could have arisen as to whether he acted under provocation, or in an alcohol affected state such that he lacked the requisite state of mind.

While the Crown case may, on one view, appear on the limited material provided to us, relatively strong –

and reading this judgment, it was very, very strong –

it cannot be said at this stage that questions of the kind mentioned could not genuinely arise which should be determined by a jury.

Now, similarly, in Ganderton, which is behind the next tab, tab 3, which is part of this line of New South Wales authority, at page 17 – if you look at the page numbers at the top of the page, the Internet page numbers, page 17 which is actually page 12 in the original judgment – I will read the last four paragraphs, because they are all relevant:

Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possibly mistaken understanding of the facts, as in Davies.  It may also arise from a failure on the part of the accused’s legal representative to inform the accused accurately of the elements of the offence –

that is what happened here –

so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged.

That is what has happened here.  Then their Honours go on – this is judgment of Justices Sperling and James:

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

That was a case in which the onus in the dangerous driving provisions was on the accused in Ganderton positively to establish a defence unlike the issue here where the Crown must prove beyond reasonable doubt.  They have the onus of proving beyond reasonable doubt that it was, in fact, ecstasy in order to have the complete offence.  Their Honours go on:

If it had been appreciated that the appellant had or might have a defence under s52A(8), a report from an expert such as Mr Joy would have been obtained and the charge would have been defended.  The appellant would have had an arguable case for acquittal.

Then their Honours round up all these three items together:  the consciousness of guilt aspect; the miscarriage of justice; the arguable defence and the flawed advice.  The next sentence:

There was, in these circumstances, no “genuine consciousness of guilt” when the appellant pleaded guilty to the charges, and there was an “issuable question of guilt” –

an arguable point –

to be tried.  There was, accordingly, a miscarriage of justice, and there must be a new trial.

HEYDON J:   …..genuine consciousness of guilt here, Mr Croucher.

MR CROUCHER:   Pardon?

HEYDON J:   Was not your client afflicted by a genuine consciousness of guilt?

MR CROUCHER:   Yes, it is certainly open to say that on the material, but of this offence, how can it be said a consciousness of guilt of this offence when – because we are focusing on the plea of guilty and the consciousness of guilt that is said to arise from the plea of guilty.  That is the point that has been at issue, not consciousness of guilt in the usual sense as it is used in evidence, and that arises from the legal advice.  He is told it does not matter whether or not they can prove that it is ecstasy.

HEYDON J:   What about the…..

MR CROUCHER:    Your Honour, I do not understand the point.

HEYDON J:    …..when he was talking to the police officers as it was…..

MR CROUCHER:    Yes, but it is accepted for the purposes of this application – and it must be – that the evidence is that he believed that he was punching ecstasy.  That does not change the fact that he is not conscious of his guilt of the offence with which he is charged.  It may be acceptable to say that he is conscious of his guilt of attempting to do so.  That is a different matter, and indeed, of course, in the law of evidence, in any event, when you are dealing with the consciousness of guilt concept, of course, there is a distinction between consciousness of guilt, which goes to one offence and to another.

A person might obviously be conscious of his guilt of manslaughter but not of murder by his behaviour.  Here, and to echo the words of his Honour the President, Justice Kirby, when sitting in the Court of Appeal in Liberti’s Case ring true, that an accused is entitled to look to his legal advisers to explain the significance of facts in considering whether he is pleading guilty.  The clear evidence here, unchallenged evidence, no evidence to the contrary that that is what he was told.

If I go back a step now to the test that was applied when his Honour - at the paragraph I read before from page 258 of the application book, paragraph 25 – when he says:

But that is not necessarily the case if, as here, the applicant can show only that he might have been labouring under a relevant mistake -

clearly, by application of the New South Wales line – if I can put it that way – that would be sufficient to invoke the jurisdiction of the court.  His Honour by requiring that he must prove that it is not ecstasy, in fact, has placed a much more onerous test on the applicant than is necessary and than is required under the common law of Australia, and we say that, indeed, the common law of Australia is, indeed, represented by the New South Wales line of authority.

It is interesting that their Honours, both the President and Mr Justice Phillips in their judgments referred to even a narrower version of the Victorian line of authority.  If I can take your Honours, firstly, to the judgment of the President at page 249, paragraph 2.  His Honour there says:

Where an applicant has pleaded guilty to an offence, and his plea has been accepted by the court and his conviction entered in the records, it will only be in exceptional circumstances that an appellate court will set aside that conviction.  Those exceptional circumstances have widely been accepted as embracing, almost exclusively, the following:

(1)      that the applicant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or

(2)      that upon the admitted facts, he could not in law have been convicted of the offence charged.

The present application, for the reasons given by Phillips, J.A., does not fall within the circumstances described.

Similarly, on the second‑last page of the judgment, at the foot of page 258, line 51, which follows on from the paragraph I read earlier, Justice Phillips says this:

No doubt there were other circumstances bearing upon his belief, some of which may already have been disclosed and some not.  We cannot know.  At this stage the onus is squarely on the applicant to establish, on proper material, that there is a relevant ground upon which this Court can overturn the conviction and allow him to withdraw his plea of guilty.  Those grounds are well established:  it is either because he pleaded guilty to an offence of which he could not be convicted or because, in pleading guilty, he was labouring under relevant mistake -

the same test that his Honour the President was applying earlier in the judgment -

He demonstrates neither by showing only that, though he believed the substance he was handling to be ecstasy, there is no independent evidence to show that it was.  His belief might or might not have been a mistake.  His plea of guilty might or might not have been a mistake.  We cannot intervene on that basis.

With respect, you can, and the New South Wales Court of Appeal does.  If I can take your Honours now to Kardogeros, which is one of the cases to which our learned friends refer.  It is behind tab 9 of the list of authorities, and at page 273, which is the right‑hand side of the folder, at the top of the page their Honours say – this is the Court of Criminal Appeal previously:

Reference was then made to R v Murphy [1965] VR 187 where this court . . . held that, save in exceptional circumstances, an appellate court will only entertain an appeal against conviction upon a plea of guilty if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty or (2) that on the admitted facts he could not in law be convicted of the offence charged.

I interpose there, the same test that was enunciated by Mr Justice Phillips and the President, Justice Winneke, in their judgment.  I then read on:

The Full Court’s power to intervene in a conviction that follows upon a plea of guilty is now said to arise from the general requirement to set aside a conviction if there has been a miscarriage of justice:  R v Vella . . . The various authorities, most of which are unreported, were examined by the court in that case.

Their Honours then go through that summary from Vella’s Case.  Over the page at page 274, after rehearsing all those authorities, at about line 28:

“The only purpose of this review of the previous decisions of the court is to show that the court has quite consistently taken the view that R v Murphy should not be understood as laying down exhaustive criteria for the setting aside of a conviction based on a plea of guilty.  No doubt if an applicant can bring himself within either of the grounds stated in the headnote to the report of that case he will, save perhaps in circumstances highly unlikely to arise in practice, be entitled to have the conviction set aside but even if he cannot, the court will set aside his conviction if it is persuaded that there has been a miscarriage of justice.  It is for the applicant to persuade the court to that conclusion and as Starke J pointed out in R v Young the burden of so doing is a heavy one.”

“The burden of so doing is a heavy one” is equivalent to what the President, Justice Kirby, said in Liberti’s Case talking about regarding these sorts of cases with circumflexion – nothing wrong with that, but it shows the law even then in 1991 had moved onto a more expansive way of thinking with respect to these sorts of issues, and in Wilkes’ Case where the development in New South Wales is summarised, it shows that one of the categories that has developed is cases based on erroneous legal advice, and I will not repeat myself, as time is up, your Honours, but it shows that on the Court of Appeal’s own findings, by application to the New South Wales approach, this application would have been allowed.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Holdenson. 

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is dismissed. 

We will adjourn until 2.00 pm. 

AT 1.06 PM THE MATTER WAS CONCLUDED