Sewell v The Queen

[2001] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S175 of 2001

B e t w e e n -

THOMAS JOSEPH SEWELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 12.09 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Leary & Company)

MR A.M. BLACKMORE, SC:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

McHUGH J:   Yes, Mr Papayanni.

MR PAPAYANNI:   If the Court pleases, the question here is somewhat different to that of Maxwell.  In Maxwell, of course, the Crown accepted a plea to a lesser charge in full satisfaction of the indictment.  Here the situation is different in the sense that the question is:  what are the principles that apply in relation to the plea bargaining or an agreement between the Crown and the accused in relation to accepting pleas in relation to a number of charges in full satisfaction of those charges?

Now, the agreement in this case was that originally there were 44 charges and after the first trial, in which there was an appeal – I am sorry, pleas to guilty and the matter going before the Court of Criminal Appeal in the retrial, in effect – the Crown had 20 charges and by agreement with the accused and the Crown it was said that the 20 charges that had originally been the subject of the trial would be reduced to 17 by way of seven charges, taking a plea to seven charges, and form one in relation to the other 10 charges and three charges would be abandoned.

Now, in effect, if the situation had been that the Crown had found out subsequently that there had been say, perhaps, 88 charges and, according to Maxwell, if they had have asked for leave to withdraw their acceptance of a plea, well, no doubt the court would have granted that.  Here the situation is, in our submission, that there was an advantage to the Crown in the administration of justice for the acceptance of the pleas.  There was also an advantage to the accused in relation to the fact that he would receive a lesser penalty. 

The accused, by his own hand perhaps, refused to maintain his pleas in relation to those matters on the Form 10.  The situation changed somewhat since the application was put in and the court went ahead on 19 October and sentenced the applicant and, in relation to that, the situation then developed that in the course of those proceedings, an application for an adjournment, the Crown said that they would then proceed on the whole 44 charges, less the seven to which there had been a plea.  So that meant there was another 37 charges that they would proceed on, including the three that they had abandoned previously.

Now, in our submission, the advantage to the Crown in the plea, in the first case, and the advantage to the accused in relation to a lesser sentence, had been wholly vitiated by the fact that part of the agreement had been in respect that he would plead guilty to the seven charges as well as 10 on which he would receive a lesser penalty, and it was a whole agreement.  The Crown could not accept, in fairness to the accused, to take the plea in relation to the seven charges, for which they would receive an advantage, and say to the accused, “You receive no advantage now.  You have been induced to enter into this agreement by reason of the fact that you would get a lesser plea, but now you are not going to get any advantage at all in relation to that.”

McHUGH J:   But we have to deal with the matter as it was before the Court of Criminal Appeal.  We have no jurisdiction to hear any further evidence as to what has happened subsequently.

MR PAPAYANNI:   No, but why I point that out is that the Court of Criminal Appeal have mistakenly, on page 34 – if one looks at page 15 of the application book, your Honours will see there that the Form 1 was never tendered before his Honour Judge Price.  The Court of Criminal Appeal at page 34 said:

When the matter came on before the trial judge on the afternoon of 10 May 2000 Mr Sewell entered pleas of guilty to the 7 counts on the indictment and the Form 1 containing 10 counts and signed by him was handed up.  As neither the Crown nor Mr Sewell was ready to proceed with the sentence hearing the matter was adjourned for sentence to 12 July 2000.

But before that, on page 33 at the bottom of that page, the last sentence on that page:

Just prior to luncheon on 10 May 2000 the Prosecutor was informed that the accused would plead guilty to the 7 counts of the indictment, acknowledge his guilt as to the 10 counts on Form 1 and ask that they be taken into account.

Now, the court then proceeded on the basis that that was in fact the situation and they overlooked, in my submission, entirely the situation in relation to the Form 1, as was pointed out in the summary of argument – and the Crown has since indicated what the situation actually is – the situation could have been that the Crown could say the whole agreement is vitiated; they could have gone ahead and said, “We will have a trial on all of the counts”, or they could have done certain things.  But what, in effect, they have done – and your Honour says and I accept for the moment that that is the situation.  But one of the situations that could arise, and which, in fact, did arise, was that they said, “We are going to proceed on the 44 counts”. 

Now, in my submission, the Crown could not accept part of the plea.  The whole situation here is that, as was said in Maxwell’s Case, one has to look at the circumstances, look at any mistake of law or any mistake of fact, and decide what the situation is and whether there has been an unequivocal plea of guilty.

Now, in my submission, in relation to those matters, if one looks at the circumstances, one sees there that originally the accused and the Crown had accepted that there was a claim of right.  Now, the claim of right was an honest belief to his entitlement ‑ ‑ ‑

McHUGH J:   No, the Crown did not accept that he had a claim of right.  The Crown accepted that he could put forward a claim of right.

MR PAPAYANNI:   Yes, the Crown accepted or conceded that he could put forward a claim of right, and the fact is, in the following proceedings, that they agreed by reason of the three charges that they dropped that he did have a claim of right to $30,000‑odd.  That situation then made – the whole circumstances of that situation were not taken into account by the Court of Criminal Appeal.  So the fact that he was induced to enter into that agreement by the Crown, if the Crown had wanted leave to withdraw, they would have been able to do so if they had satisfied the judge, in this case that the circumstances here, which were ignored or overlooked by the Court of Criminal Appeal, were what would happen in relation to the Form 1. 

Now, if the situation with Form 1 is as it really is, then the Court of Criminal Appeal should have taken that into consideration and asked the Crown what exactly they would be doing in those circumstances.  If the Crown had said to the Court of Criminal Appeal that what they intended was what actually happened, then the whole agreement would have been tainted by that, as it was in Chiron’s Case, a similar type of situation.

Now, you have a claim of right, which was conceded, as your Honour said, in relation to the fact that he could raise that, was in actuality accepted by the Crown.  That claim of right was not changed in any way by the fact that is was at the time of these offences that he had an honest belief.  The fact that he changed his plea at a later time, accepting the fact, although there was no evidence to this, that he then said that $30,000 was the sum total of his entitlement and not 300,000, as it originally was, but he still had an honest belief at the time of the offences that he was entitled to the 300,000.

McHUGH J:   Yes, but the trial judge found that he knew he was abandoning his claim of right.

MR PAPAYANNI:   That is correct, but he found it on a mistake of fact, which he did not accept.

McHUGH J:   What mistake of fact?

MR PAPAYANNI:   The mistake of fact was that the applicant put forward the fact that he thought that he could rely in mitigation on the fact that he had a claim of right and that he had taken too much.  At the proceedings he was prepared – and he did not take them before the proceedings.  The seven charges amounted to about $93,000, and taking the 30,000 from that, he offered to pay the 60,000.  In the case of Astor v Hayes, in that case the magistrate, when dealing with this question of larceny of the money and the bag, the bag had been taken to the police station, the money had been kept by the prisoner or accused, and it had been obvious from that that it was larceny by finding, but he maintained that he was entitled to a certain amount of that in relation to the sentence.  The judge then did not take that into consideration.  The judges of appeal said that that was wrong. 

Now, that was a similar situation to what the applicant maintained here.  If it was a similar situation that a magistrate could come to that belief, which, in my submission, could be correct and is not really overruled by Astor v Hayes, because the simple situation in relation to that is that if you have an honest belief that you are entitled to 300,000 and then you are told later, and accept later, that it is for 30,000, you still have an honest belief at the time of the offences that could vitiate the whole fraud charges.

So here the situation, in my submission, is that the Court of Criminal Appeal also erred in law in saying what a claim of right was – the Court of Criminal Appeal maintained that a claim of right was in the means and, as pointed out in my written submissions, Lapatta quite clearly said it is not the means, it is the fact that you have an honest belief to the entitlement to the money.  So before the Court of Criminal Appeal there is a question of discretion as Malvaso ‑ ‑ ‑

McHUGH J:   It is not a question of discretion – well, it is a question of discretion in the sense that they have to consider whether the judge erred in the exercise of his discretion.  But, Mr Papayanni, the fact that you have to face up to is that after all the toing-and-froing your client pleaded guilty.  Then for the second time he wants to withdraw his plea.  He failed to satisfy the judge, as a matter of fact, after giving evidence, that he did not understand what he was doing.  The judge thought he fully appreciated what he was doing.

CALLINAN J:   He must have in view of the previous Court of Criminal Appeal proceedings.

MR PAPAYANNI:   Yes, but it overlooks the fact that the concession and what actually happened in fact, that he did have an honest belief at the time of the charges, and that seems to have been forgotten.  It seems to have been forgotten and sort of transferred or substituted into the situation that he does not have an honest belief now, therefore he could not have had an honest belief then.

McHUGH J:   No, nobody even bothered thinking about honest belief.  The question was whether he fully appreciated what he was doing when, for the second time, he pleaded guilty and then wanted to withdraw his plea.

MR PAPAYANNI:   Yes, but, see what should have been done at the hearing, as pointed out, that the judge was well aware of what the situation was and that there was a claim of right in relation to proceedings.  He did not at any time ask him whether he understood what a claim of right was and the documents before Judge Gibson showed that he did not understand what a claim of right was, because he said in the letter that was written there that he thought a claim of right, and he was told the claim of right, was a defence or protection of an employee against an unscrupulous employer.

Well, that may be so, but he was not told at any time, and the judge before whom he appeared in order to accept the plea would have had to, in my submission, gone into the fact knowing there was a claim of right, that he understood what a claim of right was and that he still wished to proceed with that knowing that he could not rely upon the fact in his sentence proceedings.  That was never asked of him, either question, and they were the two vital questions upon which the Court of Criminal Appeal should have decided this matter as to whether the judge, in effect – he also had not decided them, and the Court of Criminal Appeal should have accepted that and then, in doing that, decided what the principles were in relation to plea bargaining where it is a situation of acceptance by the Crown to fewer charges. 

Now, there has never been any decision in relation to that and if an accused person is induced to enter into an agreement by the prospect or hope of advantage of lesser pleas in relation to certain sentences and the wiping of all the other charges and then ‑ ‑ ‑

McHUGH J:   Mr Papayanni, the argument that you are putting just will not hold water having regard to the document that your client signed.

MR PAPAYANNI:   He said he had abandoned ‑ ‑ ‑

McHUGH J:   He admitted all relevant elements of the offence, which includes, “I acted consciously to obtain the money alleged for my own purposes to the prejudices of Westbus without any entitlement of this money in my own part”.  Now, the trial judge disbelieved your client and he really had solid grounds for disbelieving him, that he did not understand what he was doing.

MR PAPAYANNI:   Well, the point was never ever – I mean, here was a magistrate in South Australia who understood the same thing, and he puts it forward and he was never ever told any differently.

McHUGH J:   But these are not questions of law, Mr Papayanni.

MR PAPAYANNI:   No, but they are questions of fact.

McHUGH J:   They are questions of fact.  Well, we are not sitting here as a Court of Criminal Appeal.

MR PAPAYANNI:   No, but what I am pointing out is that the Court of Criminal Appeal has made an error of law and an error of fact, which is very fundamental really to his application and that the principles in which a plea, in these circumstances, could be withdrawn have not ever been laid down.  Why should an accused person be bound by part of it when the Crown is not bound by all of it?  There has to be fairness between the Crown and the accused and he should have the equal opportunity to withdraw his plea as to part of that. 

He is now held to seven charges without any consideration of any lesser sentence in relation to those on the Form 1 and also without any consideration that he will not be charged to the other charges to make them in all up to 44.  So he has 17 and three, that is 20, plus the other 24.  So there must be some fairness whereby he should be able, if he withdraws his plea, as to the Form 10, which is the big consideration and which induces him to accept the fact that he will plead to the seven charges, he should be allowed to withdraw his plea to the whole matter, and that is a question of law, in my submission. 

The categories, as pointed out by the Court of Criminal Appeal, are not closed in relation to this matter.  The principle here is that an accused is bound – whenever he pleads to a number of charges, plus charges on a schedule, he is bound to his plea, when he has accepted that and been induced to enter into that by the fact that he will get a lesser sentence on those other 10 charges.  That is my submission, your Honour.

McHUGH J:   Thank you.  Yes, we need not hear you, Mr Blackmore.

The Court is of the view that there is no ground for thinking that the decision of the Court of Criminal Appeal was wrong.  The application is dismissed.

AT 12.30 PM THE MATTER WAS CONCLUDED