Webster v The Queen [No 2]

[2013] WASC 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WEBSTER -v- THE QUEEN [No 2] [2013] WASC 73

CORAM:   HALL J

HEARD:   21 FEBRUARY 2013

DELIVERED          :   21 FEBRUARY 2013

FILE NO/S:   INS 26 of 2012

BETWEEN:   JAMES WEBSTER

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Application to withdraw plea of guilty - Principles applicable - Whether grounds for changing a plea made out

Legislation:

Nil

Result:

Application refused

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Ms S J Oliver

Solicitors:

Applicant:     In person

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Borsa v The Queen [2003] WASCA 254

Corica v Throssell [2012] WASC 393

Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496

Liberti (1991) 55 A Crim R 120

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Pilkington v The Queen [1955] Tas SR 144

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377

Wright v McMurchy [2012] WASCA 257

HALL J: 

(These reasons were delivered orally and have been edited from the transcript)

Introduction

1. This is an application by Mr Webster, who I will here after refer to as 'the applicant', to be permitted to change his pleas of guilty to not guilty.  The background to the application is as follows. 

Background

1. On 31 November 2011, the applicant was arrested and charged with offences under the Criminal Code (Cth). An indictment was filed in this court dated 2 April 2012. The charges contained in that indictment were:

   Between 16 December 2010 and the 1 August 2011 at Perth and elsewhere in Western Australia [the applicant] attempted to commit an offence against section 302.2(1) of the Criminal Code (Cth) in that [the applicant] attempted to traffic in a substance, the substance being a controlled drug, namely Methamphetamine, and the quantity being a commercial quantity contrary to section 11.1(1) of the Criminal Code (Cth).

   AND FURTHER THAT On the 31 July 2011 at South Perth and elsewhere in Western Australia [the applicant] dealt with money or property where there was a risk that the money or property would become an instrument of crime and [the applicant] was reckless as to the fact that there was a risk that the money or property would become an instrument of crime in relation to an offence that is a Commonwealth indictable offence and at the time of the dealing the value of the money or property was $A100,000 or more contrary to section 400.4(2) of the Criminal Code (Cth).

   On the 29th day of July 2011 at Cottesloe in Western Australia [the applicant] possessed a substance, the substance being a controlled drug, namely methamphetamine, contrary to section 308.1 subsection (1) of the Commonwealth Criminal Code.

2. On 21 September 2012, the applicant pleaded not guilty to the charges.  There were two other co-accused who also pleaded not guilty.  The matter was then set down for a joint trial commencing on 19 November 2012.  Prior to the trial date, the court received a message from the applicant's solicitors that he wished to change his plea to one of guilty to the charges.  A status conference was convened on 1 November 2012 for that purpose and in order to determine what effect the change of plea would have on the trial of the co‑accused.

3. At the commencement of the proceedings on 1 November 2012, the applicant's solicitor, Mr David Manera, confirmed that his instructions were that the applicant would plead guilty to all charges.  The applicant was then re‑arraigned and pleaded guilty to the charges.  The pleas were unequivocal; that is to say the applicant had each charge put to him in full and stated that he was guilty.  He expressed no reservation or condition attaching to his pleas. 

4. Jenkins J, who was presiding, then asked Mr Manera whether there was any reason why the applicant should not be convicted and sentenced according to law.  Mr Manera said that there was not.  Her Honour then entered convictions on the three counts in the indictment and a date of sentencing was set as being 20 December 2012.  Mr Manera said he had been instructed to ask for a pre‑sentence report and a psychological report.  Her Honour ordered those reports.

5. On 6 December 2012, the applicant filed the application seeking that he be permitted to change his plea.  It appears that the application was prepared by the applicant personally and an accompanying letter stated that he was currently without legal representation, though Legal Aid was assisting him.

6. The application was supported by an affidavit of the applicant which was dated 6 December 2012.  The affidavit is very short and the material parts of it are as follows:

   3.I have made a mistake in entering my plea of guilty.

   4.I did not intend to admit guilt.  I entered my plea of guilty having been misinformed, without full knowledge and without full and actual consent.

   5.I wish to exercise my free will, having not done so already, by withdrawing my plea of guilty.

   6.I mistakenly believed, as it was explained to me, that a guilty plea was the only option left open to me at the time of entering it.

   7.This led me to mistakenly accept to myself that I was 'guilty as charged' when there is sufficient evidence to prove otherwise.

   8.I maintain my innocence.

   9.I say and believe that there is no physical evidence against me to prove the charge of attempting to possess a commercial quantity of any drug.  The prosecution have been aware of this fact at all times, as has my counsel.

   10.I say and believe I have not received proper or adequate legal representation.

   11.I say and believe that through ineffective counsel, I have been denied procedural fairness in my defence and therefore, I have been denied natural justice.

   12.The setting up of this Commonwealth criminal enterprise was solely and exclusively the brainchild of the police, resulting in my entrapment as a consequence of undue influences.

   13.I say and believe that my entering a guilty plea in these circumstances has resulted in a miscarriage of justice.

7. On 11 December 2012, Mr Manera filed a notice with the court that he had ceased to act in any capacity for the applicant.  No other lawyer has since filed a notice of acting and the applicant is presently self‑represented.

8. The applicant appeared before Jenkins J on 17 December 2012.  The purpose was to make programming orders for the listing of the application.  The applicant confirmed that he was unrepresented and was unable to say whether that position would change.  He asked for more time to prepare his application.  The hearing of the application was set down for 31 January 2013.  The applicant was ordered to file and serve submissions by 21 January 2013 and the prosecution to do the same by 25 January 2013.

9. On 21 January, the applicant filed an unsigned affidavit and 22 pages of handwritten submissions.  A letter of the same date stated that the applicant had been unable to obtain legal representation and that he was seeking an adjournment of the hearing.

10. On 31 January 2013, Jenkins J granted the adjournment and listed the application to be heard on 21 February 2013.  The applicant was told that he could not expect further adjournments and would need to be in a position to proceed on that date.  The applicant was also told that if he intended to adduce any other evidence in support of his application, he needed to give notice of that intention.  Jenkins J said that if the applicant wished to issue witness summonses he would need to attend to that quickly.  An order was also made that the transcript of the trial of the co‑accused, which had occurred in November of 2012, be provided by the prosecution to the applicant.  Further programming orders were made that the applicant file any further submissions by 18 February 2013 and the prosecution respond by 20 February 2013.

11. On 18 February 2013, the applicant filed written submissions, the first 22 pages of which were identical to the earlier handwritten submissions.  There was then an additional seven pages added to the end.  On the same day, the applicant filed three applications, each of which were supported by an unsworn affidavit in identical terms.  These applications were for, first, habeas corpus; secondly, bail; and thirdly, to adduce 'evidence and further information'.

12. The applications for habeas corpus and bail appear to be based on the same arguments raised in respect of the application to change the plea.  They are dependent on the issue raised in that application being resolved favourably to the applicant.  It will only be necessary to consider them if the applicant's primary application succeeds.

The application to adduce further evidence

1. The application to adduce evidence contains no details as to what evidence the applicant wishes to adduce.  There is no application to issue witness summonses and no possible witnesses are referred to in the application.  This is despite what Jenkins J said on 31 January 2013.

2. Today the applicant has said that he wishes to issue summonses to a number of witnesses who he has named, including police officers, an informant and a media organisation.  He says that he has found it difficult to access the correct forms in prison and this is why he had not applied to issue witness summonses earlier.  He does not know what these witnesses would say but he believes that they could give evidence regarding the genesis of the police operation and the circumstances of his arrest.

3. The relevance of the genesis of the police operation is said to be that that evidence may show that the police colluded with an informant to set up a criminal operation with the object of luring the applicant into the commission of an offence.  As to the arrest, the applicant believes that evidence may be available to establish that the police used unnecessary violence when arresting him.

4. The application to adduce evidence must be refused for the following reasons: 

   (1)the application is essentially a fishing expedition.  It does not involve obtaining evidence believed on reasonable grounds to exist, rather it is an attempt to find out whether any such evidence exists.  That is not a proper use of a witness summons;

   (2)the relevance of any such evidence to this application is far from clear.  At best, it might show some unlawful conduct on the part of the police but it is not conduct which could possibly affect the admissibility of the significant evidence against the applicant contained in the prosecution brief;

   (3)to allow the application would necessitate a further adjournment of this application.  That would be inappropriate in circumstances where there has been a previous adjournment and the applicant failed to comply with a direction that he be in a position to proceed today.

The application to change the pleas

1. The applicant's contention on this application is that he did not intend to plead guilty and that any decision to plead guilty was made without 'informed consent or knowledge'.  In essence, what he says is that he was advised by his lawyers to plead guilty and accepted that advice.  He says that he was under great stress at the time due to being remanded in custody, family issues, and having all of his property frozen.  He says that he also accepted the advice on the assumption that his lawyers had read the brief and made an assessment of the evidence.

2. He also says that the prosecution did not disclose all relevant evidence; in particular, evidence prior to a meeting between himself and an undercover operative named Rob on 17 December 2010.  What this evidence is said to be and why it is relevant is not detailed.  The applicant has made oral submissions today saying that this evidence relates to the genesis of the police operation and to the involvement of the police in setting up that operation.

3. The applicant also states that the police used excessive force when arresting him and that the evidence would confirm that this was not disclosed by the prosecution. 

4. The principal contention of the applicant is that the criminal scheme was one that was conceived and set up by the police and that he was entrapped.  He submits that the police acted illegally and that he was coerced or induced to commit a crime that he would not otherwise have committed.

5. Before turning to the applicable law, it must be noted that the applicant’s contentions are largely, if not entirely, unsupported by any evidence.  The affidavits filed by the applicant are either unsworn or contain only vague generalisations and assertions.  As the history of this application illustrates, the applicant has had more than ample opportunity to obtain and adduce evidence to support his claims.

The law regarding a change of plea

1. As to the law, there is no provision in the Criminal Procedure Act 2004 (WA) dealing with a change of plea other than where an accused person pleads guilty to an indictable offence before a summary court and is committed for sentence: s 99 of the Criminal Procedure Act.  However, there can be no implication drawn from this that jurisdiction to allow a change of plea in other circumstances does not exist.

2. There are obvious reasons why it was necessary to make special provision for a change of plea where the accused pleaded guilty in another court.  Where the plea was entered in the same court, there is ample authority that the court has jurisdiction to deal with an application to change a plea.  See Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377 and Corica v Throssell [2012] WASC 393.

3. There are three well recognised grounds for allowing a change of plea: 

   (1)where the applicant did not understand the charge or did not intend to plead guilty;

   (2)where on the admitted facts the applicant could not in law be guilty of the offence; and

   (3)where the plea of guilty has been obtained by inducement, fraud or intimidation. 

   See Borsa v The Queen [2003] WASCA 254.

4. These are not, however, the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. 

5. The onus is on the applicant to show why he should be permitted to change his plea: see Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.

6. The court's approach attempts to change a plea with caution bordering on circumspection: Liberti (1991) 55 A Crim R 120. This is because there is strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. That is all the more so when the person has had the benefit of legal advice: See Pilkington v The Queen [1955] Tas SR 144, and Wright v McMurchy [2012] WASCA 257.

7. A distinction must be drawn between argument or advice to a client to plead guilty and improper pressure or harassment.  Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty:  Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice.

8. What is required for a plea to be valid is that it is based on an understanding of what is alleged in the charge and an acceptance of responsibility.  It does not require a detailed understanding of the prosecution case or the evidence to be adduced.  The plea must be clear and unequivocal, not accompanied by any reservation or dispute as to any essential element of the charge.

9. Entrapment is not a defence to a criminal charge:  See Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. Evidence can, however, in some circumstances be excluded in the discretion of a trial judge where it has been unlawfully obtained.

Merits of the application

1. Turning then to this application, the applicant's assertion that the advice of his lawyers was in error is unsupported by any evidence.  There is no basis for concluding that the lawyers had not read the brief or misunderstood the case against him.  There is reference in the applicant's written submissions to correspondence which confirmed that the lawyers had not read the entire brief, but no such correspondence has been adduced on this application.

2. The applicant had the benefit of legal advice from a number of senior and very experienced criminal lawyers.  They included his solicitor, Mr Manera, Mr Laurie Levy of Senior Counsel, and Mr Richard Utting of counsel.  That he followed their advice but now regrets doing so and believes he made a mistake is not grounds for changing a plea.

3. The basis for the argument that the advice was wrong is that the applicant contends that the criminal operation was unlawfully set up by the police and that his involvement in it was involuntary.  It is not disputed by the Commonwealth that this was a controlled operation and that an undercover officer played a critical role in offering to import methamphetamine and sell it to the applicant.  However, they say that the operation was authorised under the Crimes Act 1914 (WA) and that the applicant was a very willing participant, offering to buy ten kilograms of methamphetamine for $160,000 a kilogram and attending a meeting with $320,000 cash with an intention of purchasing the first two kilograms of the drug.

4. In these circumstances, the applicant's argument has the following insurmountable obstacles.  First, the actions by the police were done pursuant to a controlled operation authority and are therefore not unlawful and thus evidence in respect to their conduct during that operation was not inadmissible.  Secondly, in any event, the exclusion of unlawfully obtained evidence relies upon the exercise of discretion and that discretion has not been called upon because the admissibility of the evidence was never challenged.  This is notwithstanding that the applicant must have known since shortly after his arrest that this was a controlled operation.  Thirdly, that the suggestion that a person who decides to enter into unlawful conduct is relieved of responsibility because it is a police operation is incorrect.

5. The applicant also says that the operation was designed in a way such as to make it very attractive for him to take part.  He refers to the 'cheap price' of the drugs and that at the time he was suffering personal need because of his dire financial circumstances.  Those circumstances do not make a person’s act involuntary and they could not constitute any defence known to the law.

6. The suggestion that evidence was not disclosed is denied by the prosecution and has not been substantiated.  There is no reason to suppose that there is evidence which could materially change the complexion of the case alleged.  The suggestion that there was collusion between the police and the informant amounts to very little more than that this was a controlled operation, which is already conceded by the prosecution.  In any event, the prosecution case was a very strong one.  The circumstances of that case can be summarised as follows.

7. The applicant met an undercover police operative known as 'Rob' on 17 December 2010.  In subsequent communications the applicant raised a plan to import a large quantity of cocaine.  The applicant was unable to make the necessary arrangements and the arrangement then changed to one whereby Rob would import large quantities of methylamphetamine from Indonesia which the applicant would purchase.  In covertly recorded conversations the applicant referred to the market for drugs in Western Australia.  The applicant told Rob that he knew men with cash who would want to buy the drugs.  He said that he could purchase about ten kilograms at $160,000 per kilogram.  It was agreed that the purity would be at last 80%.  On 18 July 2011 the applicant told Rob that he would have sufficient cash to purchase the first two kilograms of drugs within a week.  On 29 July 2011 the two men met by arrangement and Rob provided the applicant with a sample of methamphetamine and there was discussion about how much of the drug was available and how much cash the applicant had gathered.  It was agreed that two kilograms would be purchased for $320,000.  On 30 July 2011 the applicant told Rob he had $300,000 at that moment and would get a further $20,000.  A meeting was arranged for the following day.  On 31 July 2011 the applicant arrived at a car park in South Perth.  He ran to Rob who was in another car and placed a bag containing $320,000 in cash into the boot of Rob's car.  Another car then delivered a backpack containing two kilograms of a white, inert crystalline substance.  The applicant took possession of the backpack on the basis it contained drugs.  He also indicated an intention to purchase a further two kilograms the following day.  The applicant was arrested at the scene.  A search of his residence resulted in scales and other items consistent with drug dealing being found.

1. As to the suggestion that the arrest was a brutal one, I admitted on this application photographs tendered by the applicant (over objection by the prosecution) which he says show the treatment that was meted out to him at the time of his arrest.  Accepting that that is so, whether or not that would result in the exclusion of any evidence is entirely speculative.

2. Even supposing that the arrest was a brutal one and was unnecessarily violent, it could not have the effect of excluding the evidence that constituted the prosecution case.  The fact is that by the time that that arrest was effected, the offence was complete and the prosecution evidence in respect of it did not rely and was not dependent upon a lawful arrest.

Conclusion

1. The applicant's pleas of guilty were clear and unequivocal.  That the applicant now regrets and thinks that it was a mistake to enter those pleas is no grounds to set them aside.  It has not been established that there would be a miscarriage of justice if this application was refused and in those circumstances the application will be refused.  The other applications for bail and habeas corpus therefore also fail.