Sewell v the Queen S175/2001

[2001] HCATrans 529

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 expedition and a stay

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 18 OCTOBER 2001, AT 10.15 AM

Copyright in the High Court of Australia

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

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

HIS HONOUR:   Yes, Mr Papayanni.

MR PAPAYANNI:   The summons, if your Honour pleases, is dated 4 October, and ‑ ‑ ‑

HIS HONOUR:   I have read all the papers, Mr Papayanni.  Now, Mr Papayanni, my practice is that you are not entitled to more time on a stay application than you would get on the special leave application.  So, you have 20 minutes to persuade me that this is a proper case for a stay.  Given the various factors and that there is a place available on 23 November, I would be prepared to make an order for expedition, so you need not address that but if you want to press your application for a stay then proceed, but you have 20 minutes.

MR PAPAYANNI:   Yes, your Honour.  Well, the situation is that if there is no stay when the matter comes on tomorrow for sentence and the situation then is as indicated in the summary of argument that there are seven charges which he has pleaded guilty already before his Honour Judge Price and then there is the other 10 charges which are on a Form 1 which he does not intend to plead guilty in respect of those.

Now, when the matter came before Judge Gibson in May 2000, there was - the situation then was that the trial was aborted because there was extra evidence that the Crown wished to call in which they said at that time would be two to three weeks time before that would be available.  There was a conference with counsel and so on in relation to the accused and an agreement was then come to, if I can call it that, between the Crown Prosecutor and the accused and his counsel that the Crown would accept this arrangement in relation to it.

Now, although the applicant is going back on that agreement, in my submission, he should not be held to that agreement.

HIS HONOUR:   Well, I know that, Mr Papayanni, but, first of all, you have to get special leave and you are asking this Court to stay proceedings in the District Court.  Now, why should this Court intervene?

MR PAPAYANNI:   Well, if the matter goes before the Court, as I say, tomorrow, the situation will be that only part of the charges against the applicant will be dealt with because ‑ ‑ ‑

HIS HONOUR:   Well, that may be.  You may get an adjournment pending the hearing of a special leave application when you get an expedited ‑ ‑ ‑

MR PAPAYANNI:   No, that has been refused already by the District Court.

HIS HONOUR:   I have read what the Chief Judge said and it is by no means certain that he will refuse you tomorrow but if he does then it does not mean that you are entitled to a stay here.  We do not sit as a Court of Criminal Appeal.  It is an extraordinary step for this Court to stay proceedings in the administration of justice.

MR PAPAYANNI:   Yes.  Well, if we cannot go ahead and we cannot appeal – if the judge sentences tomorrow or at some time before the matter comes on, well then, we cannot appeal to the Court of Criminal Appeal in relation to the fact that he asked to withdraw his plea of guilty, so he is facing that ‑ ‑ ‑

HIS HONOUR:   That may be but he has had enough opportunities.  He has been before Gibson DCJ; you have been to the Court of Criminal Appeal.  I mean, given the memo that was read to him and that he signed on 10 May 2000, it is hardly surprising that Judge Gibson took the view that he was quite conscious of what he was doing.  These are questions of fact.  Now, before you would even get the case off the ground, you would have to persuade me that you had very strong prospects of obtaining special leave and at the moment I have to tell you that I think your chances of getting special leave are, to put it at its highest, not good.

MR PAPAYANNI:   Your Honour, the first matter is the Form 1, it is the unsatisfactory nature of that, and the second matter is the agreement.  Now, why should the applicant be held to part of the agreement when he is reneging on the whole of the agreement?  The situation there becomes impossible.

HIS HONOUR:   Yes, but Mr Papayanni, this is the High Court of Australia.  You are not in the Court of Criminal Appeal, you are not before a District Court judge.  The jurisdiction to stay criminal proceedings, as we have said again and again, is an extraordinary jurisdiction.

MR PAPAYANNI:   Yes, but he is being deprived of his right of appeal.

HIS HONOUR:   No, he has not been deprived of anything.  He has litigated this issue again and again and he has had an appeal dealt with by the Court of Criminal Appeal.

MR PAPAYANNI:   Yes, but he has a right to appeal or special leave anyway to the High Court.

HIS HONOUR:   No, he has not a right.  There is no right of appeal.  It is an application to commence proceedings in this Court.

MR PAPAYANNI:   Yes, but he has a right to make an application to the Court and if that application is going to be nugatory, the District Court should not destroy that right that he has to make that application, and that is what they are doing here.  If the matter goes ahead tomorrow, well then, his right to appeal or right to apply for special leave to appeal is destroyed.

HIS HONOUR:   No, it is not.

MR PAPAYANNI:   Because when he goes before the – for an application for special leave, well then, the situation then is that he cannot withdraw his plea.

HIS HONOUR:   He has been held to his plea.  If this Court was to grant special leave then you could make an application to stay whatever proceedings were in the District Court, if your client had been sentenced or had not been sentenced or whatever the case may be but the fact that a stay is refused does not destroy his rights to pursue his special leave application.

MR PAPAYANNI:   Well, if he does go ahead and he is sentenced to a period of imprisonment and the matter comes on in a year’s time and he has served a year’s goal, well then, it is not much point in staying his sentence then.

HIS HONOUR:   That can be dealt in the course of time but this Court has said again and again that it just will not interfere to stay proceedings, grant bail, merely because there is a special leave application is on foot.  After all, the case has been litigated in the courts in New South Wales and you have lost and the matter is at an end.  What you are now seeking to do is to ask this Court to give permission to commence proceedings in this Court. 

MR PAPAYANNI:   See, if one looks at it, up to 10 May he had very poor representation from counsel.

HIS HONOUR:   Well, I do not know about that.  What are you talking about, 10 May 2000 or 10 May 2001 when he came before ‑ ‑ ‑?

MR PAPAYANNI:   Until the application was made this year to his Honour Judge Gibson.

HIS HONOUR:   Yes.

MR PAPAYANNI:   So, if you go back to the situation in relation to the trial itself, the judge then aborted the trial when he should have disallowed the evidence in relation to the extra evidence that the Crown was going to bring.

HIS HONOUR:   Mr Papayanni, that has nothing to do with it.  These are not special leave points.

MR PAPAYANNI:   Well, he has not been given a fair trial in relation to this matter.

HIS HONOUR:   I would have thought this applicant had been given just about every possible opportunity to put his case or to deal with it.  It really stretches one’s credulity.  Here was man who pleaded guilty, is sentenced to gaol; has his conviction quashed; and then he comes back.  He changes his plea.  A document is read to him by his counsel, as he concedes in cross‑examination.  He signs it. 

MR PAPAYANNI:   Yes, but, your Honour, he has a fundamental right, really, to have all the charges heard at the same time.  Courts have really said that before in relation to the matter.  You cannot have part of them heard now and part heard at some future time.  It is unfair to him to do that.  Not only that, the situation here, there is an application for special leave in relation to the charge itself.

HIS HONOUR:   Yes, I understand that.

MR PAPAYANNI:   Now, what is the position in relation if he goes ahead tomorrow, if the judge goes ahead and sentences him tomorrow?

HIS HONOUR:   That matter can be dealt with.

MR PAPAYANNI:   Well, he cannot appeal against that because the Court of Criminal Appeal has already dealt with that.

HIS HONOUR:   Of course, he cannot appeal.  If this Court dismisses his special leave application he is no worse off.  If the Court grants his special leave application, then you can make another application for a stay of whatever proceedings are on foot at that stage in the District Court.  But the idea that you can just come up here and get a stay of proceedings because you do not like what is happening below is just not on.

MR PAPAYANNI:   It is not that, your Honour.  The situation would be that in a normal case the Crown would agree not to go ahead with something which is still under litigation and you have got the fact that, in relation to all these matters to be heard together – if they are not heard together it is most unsatisfactory and the question is that the Court of Criminal Appeal did not deal with a number of matters in relation to the application to withdraw the plea.  They did not decide the law, whether the law was the same in relation to before sentence and after sentence and in relation to Foley’s Case, of course, there was a situation there where all he has to have is a defence on the merits .

Now, the Crown has admitted previously before the Court of Criminal Appeal that he does have a defence on in relation to the claim of right.  The only question really is ‑ ‑ ‑

HIS HONOUR:   What are you talking about?  That was the first trial.  Sorry, that was when the matter came before the Court of Criminal Appeal.

MR PAPAYANNI:   That is correct.  Then he went back for trial but the only point about this matter really now is he has never agreed - there is a difference as to the amount.  He says, “I have done 6 million.  I made 300,000”.  He had already sued the people for the difference in relation to the amount that he is owed, civilly, and there is a situation here where the Crown says, “He is owed 32,000.  We have agreed to take some of the charges off in relation to that”, and he says, “No, I believe that I am entitled to the full amount of 300,000.”

HIS HONOUR:   Yes.  Well, he signed a document on 10 May.  He came before Gibson DCJ who did not believe him. 

MR PAPAYANNI:   Yes, but, your Honour, look at Astor v Hayes, that case.  There was a magistrate there that believed the same thing that he did and they held that he was wrong.  But if he is in a situation that if he believed that he could pay back - if it was found that he was not owed certain amounts, if he could pay back the rest, well then, that is similar to Astor v Hayes.  Now, in the particular case here, he is willing to pay compensation but if he is not owed the amount when it has been properly litigated.

HIS HONOUR:   Mr Papayanni, you have not anywhere near suggesting there is a special leave point in this case.  You are not addressing the Court of Criminal Appeal nor addressing a District Court judge.

MR PAPAYANNI:   No, I am addressing your Honour.

HIS HONOUR:   This special leave application is one that has very small prospects of success.

MR PAPAYANNI:   Well, your Honour, it has not been argued.

HIS HONOUR:   I have read your summary of argument.  I have read Judge Gibson’s trial.  I have read all the papers that have been filed in the matter and - - -

MR PAPAYANNI:   Well, on the situation in relation to section 300, that is an application for special leave in relation to that matter.

HIS HONOUR:   What, points not taken? What is the point there, that there is no evidence to support the charge? What is your point about section 300?

MR PAPAYANNI:   In section 300?

HIS HONOUR:   No, you just mentioned that - - -

MR PAPAYANNI:   That the facts do not support the charge.

HIS HONOUR:   The point is not taken before the judge.  There are sparse facts before the Court of Criminal Appeal.  The chance of you getting special leave to argue that point in front of us on the material that was before the court below is, I would have thought, extremely remote.  Now, Mr Papayanni, you really have to face up to realities.

MR PAPAYANNI:   Well, your Honour, the reality in this case is that he has been more or less told that he is going to go to gaol.  He has already served seven months in goal.  He has a situation now where, in relation to seven of the charges, he has pleaded guilty and he is not being allowed to withdraw that.  In relation to the other 10 charges, the Crown can say, “Well, we are going to put him up again in relation to that”, so he has two different situations.  Now, when he comes back before – and that will take a while before that trial comes on.  So, he has a sentence in relation to the seven charges and then has to come back later on after a trial and be sentenced again in relation to them.

HIS HONOUR:   Mr Papayanni, this assumes all sorts of things are going to happen tomorrow which may not even happen.  There will be another application, no doubt, tomorrow.

MR PAPAYANNI:   But it is made out quite clear, your Honour, that the Chief Judge there, Chief Justice Blanch, that the matter will go on tomorrow.  He has made it quite clear and his reason for it was that an application for expedition had not been made.  Now, we could not have made an application for expedition before because we had no grounds for it.

HIS HONOUR:   You waited from August until now to file any application for a stay here, even though the matter had been listed for 19 October, for a number of months.

MR PAPAYANNI:   We put in our summary of argument on 12 September and we waited until the Crown received that in order to ask them whether they would agree to not proceed on 19 October which was a matter that was agreed with by a person from the DPP Office.

HIS HONOUR:   Well, your solicitor asked Judge Blanch a question, “So, I take it this refusal is really because the application has not been made to the High Court for expedition?”, and the Chief Judge said, “Yes.”  Now, what the Chief Judge may do tomorrow or the judge who hears it may do tomorrow is another matter.

MR PAPAYANNI:   Yes, but the odds are on that the fact that he will proceed.

HIS HONOUR:   Yes.  Well, may be that it will but there is nothing extraordinary about the case which would ‑ ‑ ‑

MR PAPAYANNI:   Well, I think it is, your Honour.

HIS HONOUR:   Well, you may.

MR PAPAYANNI:   Half and half.  You do not see a case where you have 17 charges and they proceed on seven and then proceed later with 10.

HIS HONOUR:   Well, they may or may not.

MR PAPAYANNI:   Yes, but it is unfair to the accused – to the applicant.

HIS HONOUR:   If you succeed in your special leave application on 23 November, then, you can, at that stage, make an application to deal with these Form 1 charges if they are being pressed, in some further proceedings.
Well now, I think you are getting close to your 20 minutes, Mr Papayanni.

MR PAPAYANNI:   Do I understand, your Honour, that it will be on, on the 23rd if there is a vacancy?

HIS HONOUR:   I am prepared to make an order for expedition that the matter be heard on the 23 November.  There is a place that it can be put in. 

It will not require the displacing of any other case, and because the Crown consents, it seems to me it is a proper case for expedition.

MR PAPAYANNI:   Yes.  Well, I cannot put anything further than that.

HIS HONOUR:   Yes, thank you.

This is a summons in which the applicant, Mr Sewell, seeks four orders:

1.   The hearing of the applicant’s application for special leave to appeal be expedited.

2.   The sentencing proceedings set down for hearing in the District Court on 19 October 2001 be stayed pending the hearing of these proceedings.

3.   The sentencing proceedings in the District Court be stayed pending the determination of the application for special leave to appeal and any subsequent appeal to this Honourable Court.

4.   That such application be listed for hearing before the Court at Sydney at such time and place as may be fixed by the Court.

The Crown does not oppose the expedition of the special leave application but it does oppose the grant of a stay.

The background to the matter is this. On 10 May 2000, Mr Sewell pleaded guilty to seven offences of using a false instrument under section 300 of the Crimes Act 1900 (NSW). He later sought to withdraw his guilty plea. Gibson DCJ dismissed his application to withdraw the plea and set the matter down for a sentencing hearing.

On 18 June 2001, Mr Sewell applied to the New South Wales Court of Criminal Appeal for leave to appeal from the orders of Judge Gibson.  The Court of Criminal Appeal dismissed Mr Sewell’s application.  About mid‑August, the matter was set down for a sentencing hearing in the District Court on 19 October this year, that is to say, tomorrow.

In August, Mr Sewell filed an application for special leave to appeal and a summary of argument, I think, in September of this year seeking special leave to appeal from the judgment of the Court of Criminal Appeal.

On 4 October, he sought a stay of proceedings in the District Court pending the hearing of his special leave application.  The matter came before Chief Judge Blanch who refused the application, “because of the dilatoriness in respect of which the matter’s been pursued”.  He informed those appearing for the applicant that they should “go to the High Court and get an order from the High Court staying this matter and asking for expedition”.

As I indicated, Mr Sewell was charged with several counts of using a false instrument knowing it to be false with intent to induce Westpac to accept as genuine and thereby credit to an account, under the control of Mr Sewell, specified sums of money to the prejudice of his employer, Westbus Pty Limited. The charges were laid under section 300 of the Crimes Act 1900 (NSW). All the alleged offences occurred between January 1992 and February 1993 and involve a total, according to the Court of Criminal Appeal, of $193,796-odd.

Mr Sewell was a manager at Westbus.  His duties included arranging bus transport when trains were not operating.  He has claimed at various stages that he had an agreement under which he would get a 5 per cent commission on turnover for new business he obtained for the company.  The Crown allege that Mr Sewell photocopied blank invoices, filled in the details of bus jobs done,and delivered the photocopy invoices to State Rail.  State Rail, it is then alleged, paid the invoices believing them to be correct. It issued cheques payable to Westbus Pty Ltd.  Mr Sewell is then alleged to have taken each cheque, placed a Westbus stamp on its back, endorsed it with a signature and made it payable to an entity, which he is alleged to have owned and controlled, called Prospect Promotions.  Each of the cheques was paid into the bank account and the proceeds were withdrawn.

The Crown alleges that Mr Sewell was not authorised to sign over any of the cheques made payable to Westbus.  Nor was he authorised to deposit any of the cheques directly into any account controlled by or owned by him.  The Crown alleges that Mr Sewell has admitted what he did, as he believed that he was owed the money and this was the only way he could get it.  The Crown alleges that Mr Sewell claims that he spent the majority of the money on gambling.

The procedural history of the matter is very long.  It is set out in detail in paragraph 8 of the judgment of the Court of Criminal Appeal.  I will summarise the substance of it. 

On 20 November 1998, Mr Sewell pleaded guilty in the District Court to a number of counts under section 300 of the Crimes Act.  He was represented by counsel.  On 26 February 1999, Judge Karpin imposed custodial sentences. 

Subsequently, Mr Sewell appealed to the Court of Criminal Appeal against both convictions and sentences.  He sought to withdraw his plea of guilty on the basis that he was entitled to raise a claim of right in answer to each charge.  Counsel appearing for the Crown at the appeal conceded that such a claim of right was, as a matter of law, available to Mr Sewell and that it would not be in accordance with principle to deprive him of the opportunity to put that defence before a jury.  Accordingly, on 27 September 1999, the convictions were quashed and a new trial was ordered.

Then, after two attempted but aborted trials on 8 and 9 May 2000, a trial was due to start in the District Court on 10 May 2000.  On that day, after discussions between counsel for the Crown and Mr Sewell, the Crown accepted that Mr Sewell had a possible claim of right in respect of a sum of $31,000. 

The Crown offered to accept a plea of guilty to 17 counts of using a false instrument.  Three counts, I think, were removed from the indictment.  The remaining 17 counts were divided into seven counts and a Form 1 schedule containing 10 counts.  The Crown was informed that Mr Sewell would plead guilty to seven counts in the indictment, acknowledge his guilt as to 10 counts in Form 1 and would ask that they be taken into account on sentencing.

On the afternoon of 10 May, Mr Sewell entered pleas of guilty to seven counts on the indictment and the Form 1 containing 10 counts.  He also signed a document prepared by his advisers on 10 May stating that he was aware of the consequences of his guilty plea.  That document, among other things, contained the following statement:

My counsel has explained to me that if I plead guilty to these counts that I do so having abandoned my defence of “Claim of Right” to all counts.  I have been informed that by pleading guilty I am admitting all relevant elements of the offence – which includes I acted consciously to obtain the money alleged for my own purposes to the prejudice of Westbus without any entitlement to this money on my own part.  I have been informed that the Crown will indicate that periodic detention as a sentence would be inappropriate having already served a previous sentence of this type.  My counsel has informed me that because of my record it is highly probable that I will be again sentenced to a period of full time custody.

In later proceedings before Judge Gibson, Mr Sewell conceded that that document had been signed and read to him.

On 10 May, the matter was adjourned for sentence to 12 July 2000, but that hearing was again adjourned to 27 July.  Then, on 27 July, Mr Sewell filed a notice of motion seeking to withdraw his pleas of guilty.  Another application for leave to withdraw the pleas was made on 1 March 2001.  Eventually, on 10 May 2001, Judge Gibson heard that application for leave to withdraw and refused it.  He set 29 June 2001 as the sentence date

Mr Sewell gave evidence before Judge Gibson who described him as a person who came across as “somebody who was astute and smart”.  Judge Gibson also made important findings of fact.  He said:

I do not believe that he –

that is Mr Sewell –

did not understand that he was abandoning his claim of right.  I am satisfied…on the balance of probabilities that he did so understand.  He had been sent to gaol and been let out of gaol on the basis that he could run a defence that he claimed he had…the material had been put before the court on the first occasion in the plea, and the Court of Criminal Appeal said no, it was a claim of right that had to be put before the jury.  To say that he was not aware of that...is just unacceptable.

If it had not been for that fact, I might have taken a different view, but in relation to the evidence, I am satisfied on the balance of probabilities that at the time he knew that he was admitting his guilt, he was prepared and did admit his guilt, realising that he was abandoning his claim of right.

The judge then went on to say:

In my view, there has been such a conscious acceptance of guilt in this case, and in the totality of the evidence I would on that alone refuse the application.

After reviewing the history of the proceedings, the judge also said:

I think, with respect to Mr Sewell, he is just trying to delay the day that he will appear before the courts and I am satisfied that at the time he entered that plea before Price J originally, that he did have a genuine understanding of his own guilt, and that the plea was an expression of that guilt.  That being so, I refuse the application.

In June 2001, Mr Sewell applied for leave to the New South Wales Court of Criminal Appeal.  Although the application was out of time, the Crown did not oppose an extension because of a medical condition under which Mr Sewell, unfortunately, was suffering and apparently is still suffering.

The grounds of appeal in the Court of Criminal Appeal were:

1.   Gibson DCJ erred in law in refusing the application to withdraw the applicant’s plea of guilty; and

2.   The evidence available to the Crown was insufficient to support the counts in the indictment.

The Court of Criminal Appeal delivered judgment on 10 August 2001 after reserving for seven days.  It dismissed the application for leave to appeal against the judgment of Judge Gibson.  In its judgment, the Court of Criminal Appeal extensively reviewed the authorities concerned with withdrawal of guilty pleas and the issue of setting aside a conviction after a plea of guilty.  The Court held that the Judge did not fail to apply and follow the correct principles in refusing to grant leave. 

The Court of Criminal Appeal thought that the judge’s assessment of Mr Sewell’s evidence before the judge and Judge Gibson’s finding of facts precluded a conclusion that Mr Sewell did not fully appreciate what he was doing and the affect of what he was doing in pleading guilty to the charges.  The court held that the judge’s findings that he entered his plea having a genuine understanding of his own guilt and that the plea was an expression of guilt were significant.

The Court also dismissed the second ground, that is the ground based on insufficient evidence, and, in particular, it rejected an argument that each cheque was not a false instrument for the purpose of section 300 of the Crimes Act.  Then, as I indicated, in August, the matter was set down for a sentencing hearing on 19 October 2001 and, as I also indicated, on 4 October 2001 Chief Judge Blanch refused a stay of proceedings in the District Court.

The decision to expedite a special leave application is, of course, a discretionary one.  The factors that have been taken into account in considering expedition by this Court in recent times include whether there are real prospects of obtaining special leave; whether expedition would cause prejudice to other parties; whether the other parties consent to the expedition and are ready to proceed; whether expediting the matter would cause inconvenience to the Court or displace another matter already listed; the health or age of the applicant; the interests of the applicant’s family; whether the decision below has caused a state of uncertainty in the law on a question of general importance that urgently requires clarification by this Court; and whether the decision below has caused a state of uncertainty in a matter of public interest that requires urgent attention.

In this case, I think it is a proper case to expedite the hearing because of three factors.  First of all, there is a place available in the list for 23 November of this year and no other  matter would need to be removed from the list.  The Crown consents to the matter being expedited.  The parties have filed their summaries of argument, and the matter would be ready to proceed on 23 November.  In those circumstances, I think it is proper that I should make an order expediting the application for special leave to appeal.

However, the summons also seeks a stay of the proceedings in the District Court.  In Fuller & Cummingsv Director of Public Prosecutions (1994) 68 ALJR 611, I said:

Before the Court would exercise the extraordinary jurisdiction to stay committal proceedings pending the hearing of a special leave application it would need to be convinced that there was a high degree of probability that the special leave application would be granted and that the right to make the application would be rendered futile if the stay was not granted.

Those remarks also apply to a case like the present.

In Jennings Construction v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, Justice Brennan identified four factors that are always relevant to the discretion to stay proceedings - whether they be civil or criminal. They are:

1.   whether there is a substantial prospect that special leave to appeal will be granted.

2.   whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending.

3.   whether the grant of a stay will cause loss to the respondent.

4.   where the balance of convenience lies.

In this matter, it seems to me that the relevant matter to take into consideration is whether there is a substantial prospect that special leave to appeal will be granted.

The special leave questions that are said to arise are set out in the applicant’s summary of argument, paragraphs 1 and 2. 

1.   The applicant suffered a miscarriage of justice in that the Court of Criminal Appeal erred in law in

(a)not finding that Gibson DCJ erred in law in refusing the application of the applicant to withdraw his pleas of Guilty to the counts in the Indictment

(b)Alternatively to Ground (a), not exercising its inherent jurisdiction to find that the applicant should be allowed to withdraw his pleas of guilty to the said counts

(c)Not finding that the evidence available to the Crown is insufficient to support the counts in the said indictment

(d)Alternatively to Ground (c) is not finding that the applicant had a good defence of a claim of right to the counts in the said indictment and accordingly should be allowed to withdraw his pleas of guilty to such counts.

(2)The Court of Criminal Appeal should have ordered that the applicant be allowed to withdraw his pleas of guilty to the said counts.

From what I have said, it is plain that there are a number of factors that would weigh against a grant of special leave to the applicant.  First, the decision appealed from was an interlocutory order.  Second, the decision appealed from was a discretionary decision.  Third, the decision below involved the application of well-established principles to the facts of the case.  Fourth, it seems clear enough that the findings of the trial judge were open to him on the facts.  Fifth, it does not seem to me that the Court of Criminal Appeal decision is so clearly attended by doubt that the Court is likely to intervene and grant special leave to appeal.

In Taylor v The Queen [1989] 7 Leg Rep C 1, Chief Justice Mason, with whom Justices Brennan, Deane, Toohey and Gaudron concurred, said of appeals against interlocutory decisions in criminal matters:

The application seeks to challenge a discretionary judgment made in the course of determining an appeal from an interlocutory order.  As a general rule this Court is reluctant to review the exercise of discretion by the Court of Criminal Appeal.  Indeed it would be detrimental to the administration of justice generally if this Court were to intervene too readily at an interlocutory stage in the criminal process.

An application to withdraw a plea of guilty is, of course, an interlocutory application.

The law concerning withdrawal of pleas of guilty can be regarded as fairly settled.  It was dealt with by this Court in Maxwell v The Queen (1995) 184 CLR 501. As I indicated, the decision of a judge to allow a person to withdraw a plea of guilty is a discretionary one. The exercise of that discretion is governed by well‑established principles. There is a requirement that a miscarriage of justice be demonstrated before leave is granted to withdraw a plea. Ordinarily, leave will be granted only where the accused did not understand the nature of the charge, or did not intend to admit that he was guilty of it or, if upon the facts admitted by the plea, he could not in law have been guilty of the offence.

As has been said in some of the cases, there must be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt.  In this case, Judge Gibson made findings of fact that there was no circumstance that indicated the plea of guilty was not attributable to a genuine consciousness of guilt.  The onus of showing the existence of a miscarriage is on the applicant.  Judge Gibson made positive findings that Mr Sewell, when he entered his pleas on 10 May, had a genuine understanding of his own guilt and that the plea was an expression of guilt.

The findings of fact do not appear to have been challenged in the Court of Criminal Appeal.  At all events, that is what appears in paragraph 28 of the Court of Criminal Appeal’s judgment where it said:

The findings of fact made by the judge were reasonably open on the evidence.  They were not challenged by counsel.

Although the case for the applicant on special leave could not be said to be hopeless, nevertheless, I think it is unlikely that special leave will be granted on the ground that the judge erred in refusing to allow the guilty plea to be withdrawn.  I think it is also unlikely that special leave would be granted on the “insufficient evidence” ground.  That matter was not argued before Judge Gibson.  On the scant facts that were available to the Court of Criminal Appeal, their Honours were of the view that there was evidence upon which it was correct to hold that Mr Sewell could be properly convicted.

For those reasons, I think that I should make the following orders:

1.   That the application for special leave to appeal in this matter be expedited and listed for hearing before a Full Court of this Court on Friday, 23 November 2001.

2.   That the application for a stay of the sentencing proceedings set down for hearing in the District Court on 19 October 2001 be dismissed.

3.   I certify for the attendance of counsel in so far as that is necessary.

In conclusion, I would say simply that nothing I have said should be taken in any way as an indication that any application tomorrow for the further adjournment of the hearing of the charges should or should not be granted. 

Is there anything further from counsel?

MR BLACKMORE:   No, your Honour.

HIS HONOUR:   Yes, very well, adjourn the Court.

AT 11.03 AM THE MATTER WAS CONCLUDED