Regina v Sewell

[1999] NSWCCA 307

CITATION:	Regina v Sewell [1999] NSWCCA 307 revised - 12/10/99
FILE NUMBER(S):	CCA 60109/99
HEARING DATE(S):	27/9/99
JUDGMENT DATE:	27 September 1999
PARTIES :	Regina Thomas Joseph Sewell
JUDGMENT OF:	Grove J at 11; Sully J at 1; Greg James J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/21/0150
LOWER COURT JUDICIAL OFFICER:	Karpin DCJ

COUNSEL:	M.M. Cunneen - Crown S.R. Norrish QC - Applicant
SOLICITORS:	S.E. O'Connor - Crown J. Baptie - Applicant
CATCHWORDS:
ACTS CITED:	Crimes Act 1900
DECISION:	(i) that leave be granted to the applicant to appeal against each of his convictions; (2) that the convictions be quashed; (3) that in relation to each of the 20 matters charged against the applicant there be an order for a trial; (4) that for more abundant caution, the sentences passed consequent upon conviction be themselves quashed.

IN THE COURT OF
CRIMINAL APPEAL

60109/99

GROVE J
SULLY J
GREG JAMES J

27 September 1999

REGINA v Thomas Joseph SEWELL

JUDGMENT

1 SULLY J: On 9 November 1998 Mr Thomas Joseph Sewell, the applicant, pleaded guilty to 20 charges laid against him under s.300(2) of the Crimes Act 1900.

2   On 26 February 1999 the applicant stood for sentence in the Parramatta District Court before her Honour Judge Karpin. Her Honour formally convicted the applicant on each of the 20 matters, and imposed in respect of them various sentences of which it is sufficient to say for present purposes that the greater number of them involved a not insignificant term of full-time custody.

3   The applicant seeks - to put the matter simply - to go behind his pleas of guilty. His point, put simply, is that the entering of the pleas, and the proceedings consequent upon them, have entailed a miscarriage of justice in the sense that the effect of what has happened has prevented him from putting before a jury a possible defence of substance to all twenty of the charges preferred against him.

4   Because of the course that the Court proposes to follow, it will perhaps be helpful to set out in precise terms the first of the 20 charges, the terms of that charge being representative of the way in which each of the 20 charges was framed. The first charge reads as follows:

"For that he on 28 January 1992 at Parramatta in the State of New South Wales did use an instrument, to wit a cheque number 100260, drawn on the State Rail Authority New South Wales and payable to Westbus Pty Limited for the amount of six thousand three hundred and sixty dollars which was and which the said Thomas Joseph Sewell knew to be false with intention of inducing another person to accept the instrument as genuine and because of the acceptance to do or not to do some act to that other person or other persons prejudice."

5   It will be observed that the terms of the charge, framed in that fashion, do not condescend to much at all in the nature of particulars of the identity of the person or persons, or entity or entities, said to have been induced to accept the instrument in question as genuine. The charge seems to have followed in an undifferentiated and undiscriminating way the terms of the relevant section. Those who come hereafter to deal with the matter might wish to consider a more precise formulation of the charges.

6   The point that the applicant wishes to raise, put simply, is this. He contends that, as a matter of law, he is entitled to raise in answer to each of the 20 charges a claim of right in what I might call the classic sense of that term. That is to say, he asserts that he is entitled to claim an honest belief in his entitlement to act in the way that he did, notwithstanding that a reasonable, objective mind might think that such a belief, if held at all, was held entirely unreasonably.

7   Learned counsel for the Crown has conceded that, as matters stand, she cannot contend to the contrary of the proposition that such a claim of right is, as a matter of law, available to the applicant. She has conceded further, and in my respectful view correctly, that upon such premise it would not be in conformity with proper principle to deprive the applicant of the opportunity to put before a jury just such a defence; for, as I understand the concession, it is accepted that a jury properly directed might well take the view that it was at least reasonably possible that the applicant did honestly believe that he was entitled to behave as he did.

8   Those concessions seem to me necessarily to entail that the Court should grant the applicant the opportunity that he seeks of putting before a jury the defence that he wishes to raise in answer to all 20 charges; and in due course I shall propose orders intended to give effect to that entitlement of the applicant.

9   Before doing that, I would wish for myself to make plain, with the greatest appropriate emphasis, that the orders that I shall propose reflect very much the particular circumstances of this case; that is to say, the particular circumstances of the concessions made by learned counsel for the Crown. I wish to say with emphasis that what the Court is doing in this particular case ought not be regarded as a simple precedent which will entitle other applicants to the benefit of the orders now to be made, in cases where the Crown does not make concessions of the kind made in this particular case.

10   For the foregoing reasons, but only for those reasons, I would propose the following orders:

(1) That leave be granted to the applicant to appeal against each of his convictions;
(2) that the convictions be quashed;
(3) that in relation to each of the 20 matters charged against the applicant there be an order for a trial;
(4) and, for more abundant caution, that the sentences passed consequent upon conviction be themselves quashed.

11   GROVE J: I agree.

12   GREG JAMES J: I also.

13   GROVE J: The orders of the Court will be those proposed by Sully J.

(LIBERTY TO APPLY IN RESPECT TO BAIL).

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