Wong v Director of Public Prosecutions (NSW) - [2005] NSWSC 129

No judgment structure available for this case.

Reported Decision:
155 A Crim R 37

New South Wales

Supreme Court

CITATION:
Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/02/2005

JUDGMENT DATE :

3 March 2005

JUDGMENT OF:
Howie J at 1

DECISION:
Leave is granted to appeal against the decision of the second Magistrate on 11 August 2002 dismissing the plaintiff's application. The appeal is allowed and the order quashed. The matter is remitted to the Local Court to be heard according to law and conformably with this judgment. The defendant is to pay the costs of the plaintiff.

CATCHWORDS:
Criminal Law - Practice and Procedure - Applications to withdraw a plea of guilty in Local Court - First application determined without evidence - Second application refused without hearing merits - Failure by second magistrate to exercise jurisdiction an error of law.

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act 2001 - ss 12, 53(3)
Crimes Act 1900 - s 61N(2)

CASES CITED:
DPP (NSW) v Scheibel (2004) A Crim R 576
R v Sewell [2001] NSWCCA 299
Hall v Nominal Defendant (1966) 117 CLR 423
R v Boag (1994) 73 A Crim R 35
R v Van (2002) NSWCCA 148
Meissner v The Queen (1995) 184 CLR 132
Liberti (1991) 55 A Crim R 120
R v Allison (2003) 138 A Crim R 378

PARTIES:
Ming Yuk (Raymond) Wong v The Director of Public Prosecutions

FILE NUMBER(S):
SC 12889/04

COUNSEL:
A. Howen - Plaintiff
J. Girdham - Defendant

SOLICITORS:
Ward Maxwell & Co - Plaintiff
S. Kavanagh - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

THURSDAY 3 MARCH 2005
12889/04 MING YUK (RAYMOND) WONG v THE DIRECTOR

OF PUBLIC PROSECUTIONS

JUDGMENT

1 HIS HONOUR: These are applications for leave to appeal against the decisions of two magistrates in effect refusing applications made by the plaintiff that he should be allowed to withdraw a plea of guilty made earlier by him in the Local Court. The plaintiff requires leave to appeal to this Court because each of those orders was interlocutory: s 53(3) of the Crimes (Local Courts Appeal and Review) Act. If leave were granted to the plaintiff, the appeal would be concerned with whether either of the magistrates made an error of law in determining the application that was before him.

2 The plaintiff is the defendant in summary proceedings in the Local Court for an offence contrary to s 61N(2) of the Crimes Act, that is an offence of committing an act of indecency toward a person above the age of 16 years. The allegation is that he touched a female customer of his hairdressing salon on the breast.

3 On 30 June 2004 the plaintiff, who was then represented by a firm of solicitors experienced in the conduct of criminal matters, pleaded guilty before the Local Court at Sydney to the offence charged. The sentencing proceedings were then adjourned for hearing to 11 August 2004. Before that date the plaintiff changed his legal representatives and the matter was re-listed on their application on 5 August 2004. The solicitor then instructed by the plaintiff appeared before a magistrate (the first Magistrate) and made an application “to have the plea of guilty entered reversed and to vacate the sentence date of 11 August and to have the matter listed for a defended hearing”.

4 After a brief hearing, during which no evidence was adduced in any form from the plaintiff, the first Magistrate refused the application and as a consequence refused to vacate the hearing set down for 11 August.

5 On that date, that is the date upon which the matter was listed for sentence, the plaintiff’s solicitor appeared before a different magistrate (the second Magistrate) and asked that the proceedings stand in the list until counsel, who had been briefed to appear for the plaintiff, arrived at court. The second Magistrate indicated that he was prepared to accede to that application. The solicitor then stated, “We will be making a further application to reverse the plea”. The magistrate responded to this as follows:

6 Notwithstanding that the solicitor indicated to the Magistrate that it was an interlocutory matter and that there was no “issue of estoppel”, the Magistrate repeated his intention not to deal with the application. The solicitor informed the Magistrate that he had an affidavit that he would be seeking to rely upon if the application succeeded, but the Magistrate refused to receive the affidavit saying:

7 Shortly before the matter was stood down in the list and at the invitation of the Magistrate, the prosecutor indicated that she would be opposing the application. The Magistrate suggested that the prosecutor might wish to research the situation and then stood the matter down to later in the day.

8 The matter was called on again after counsel had arrived at court. I will shortly deal in some detail with the exchanges that occurred between counsel and the Magistrate, but at this stage it is enough to indicate that counsel was unsuccessful in having the application heard by the Magistrate who remained of the view that the application to withdraw the plea of guilty had been dealt with by another magistrate and that, in effect, he was being asked to revisit that decision as if by way of appeal. Counsel then asked the Magistrate to adjourn the matter so that an application could be made to this Court for relief against his refusal to hear the application. Hence the matter comes before me.

9 The proceedings before the Magistrate were conducted on behalf of the prosecution by a police officer. At the outset of the present proceedings the Court was informed that the Director of Public Prosecutions had taken over the matter in order to resist the challenge to the Magistrates’ rulings in this Court. The Director was represented by a Crown Prosecutor.

10 There was no dispute before me that an application to permit a defendant to withdraw a plea of guilty was interlocutory in nature. A recent consideration of interlocutory orders may be found in DPP (NSW) v Scheibel (2004) A Crim R 576 at 584. A decision refusing an application to withdraw a plea of guilty was dealt with as an interlocutory order in R v Sewell [2001] NSWCCA 299. Nor was it in contention that a magistrate would be entitled to refuse to entertain an application for an interlocutory order that had already been determined by the court unless there was significant new material justifying the court exercising its discretion afresh on the basis that without new material the further application would be fruitless: Hall v Nominal Defendant (1966) 117 CLR 423 at 440-441. In substance the error of law which it is asserted that the second Magistrate made was his refusal to exercise his jurisdiction to hear the application simply because the application had already been determined by the first Magistrate.

11 The argument before me centred upon the determination of the second Magistrate. But before considering those proceedings, I should say something about the proceedings before the first Magistrate. I have already noted that the application was determined without any evidence being placed before the court. The solicitor for the plaintiff made statements from the bar table concerning the circumstances surrounding the plea as follows. His client had always denied touching the complainant on the breast and had instructed his former legal representative that he denied the allegation. The former representative gave him “certain advice”, his client was confused and “on the basis of that entered the plea which he now knows to be a mistake”. The solicitor advised the court that on the instructions he had been given he “would not be in a position to put to the Court a plea of guilty”. He finally submitted:

12 The police prosecutor opposed the application and referred the Magistrate to R v Boag (1994) 73 A Crim R 35. The prosecutor relied upon the plaintiff’s antecedents to submit that the plaintiff “knows what the court system is all about” and noted the experience of the solicitor who had previously acted for the plaintiff. The prosecutor referred in summary to the principles involved in such an application and commented that certain factual situations, which had given rise to a successful application on other occasions, did not “fit the bill”.

13 The first Magistrate briefly referred to some relevant authorities, the history of the matter and the plaintiff’s antecedents. He concluded that the plaintiff “could not possibly, in this Court’s view, be mistaken or have any misunderstanding of the facts alleged against him, the nature of the offence or the elements of it”. The Magistrate, therefore, dismissed the application.

14 With respect to those involved in the proceedings before the first Magistrate, I simply do not understand how a court can be asked to determine such an application without evidence being adduced from the defendant as to the circumstances in which he or she came to plead guilty. Nor do I understand how a court could resolve such an application in the absence of such evidence. In my opinion the prosecutor should have objected to the plaintiff’s solicitor giving his instructions from the bar table. The first Magistrate should have indicated that he was not going to determine the matter without evidence from the plaintiff.

15 There are a number of decisions of the Court of Criminal Appeal that have considered the basis upon which that Court will entertain such an application made by an accused person in indictable proceedings in the District or Supreme Court. The principles laid down in those cases apply equally to an application made by an accused before the District Court and they apply with as much force to an application by a defendant in the Local Court. The relevant principles were summarised in R v Van (2002) NSWCCA 148 as follows:

16 The authorities referred to in the above passage show that the issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea of guilty to convict and sentence the defendant. I simply do not comprehend how a court can resolve that issue or determine that question without evidence from the person who entered the plea of guilty. It may well be the case that evidence from the legal representatives who acted for the defendant at the time the plea was entered might need to be placed before the court.

17 I understand that there are short cuts undertaken in the Local Court because of the pressure on magistrates to deal with applications expeditiously by reason of the sheer volume of matters that come before them. I also appreciate that a degree of informality must attend upon applications made in the Local Court particularly if those applications are of an interlocutory nature. I imagine that there are few occasions when evidence is required unless one of the parties objects for good reason to the relevant material being given from the bar table. I would assume that there is a degree of co-operation between the prosecution and defence representatives as to the manner in which the magistrate will be informed of the factual basis for the various applications that come before the court. I have no doubt that, generally speaking, justice can be done on the basis that the court assumes the existence of certain facts or by the court relying upon assertions made informally by the legal representative of one side or the other.

18 But where the resolution of the application depends upon the magistrate forming a view as to the integrity of a plea of guilty as an acknowledgment or confession of guilt, and where that matter can only be resolved by forming a view as to the defendant’s knowledge and understanding of the effect of a plea of guilty or by determining the circumstances in which the plea was given, there is no room for short cuts or informality. There may be cases where the objective facts make it plain that a doubt must arise about the integrity of the plea, but that would be an exceptional state of affairs.

19 A plea of guilty is clearly a very significant step in a criminal prosecution. The ramifications arising from the plea are obvious. Yet a court is entitled to rely upon that plea as an acceptance by the defendant of his guilt and to convict and sentence him relying solely upon the plea: Meissner v The Queen at 141. The plea of guilty in the Local Court is so significant that a defendant can only appeal to the District Court against conviction following a plea of guilty with leave: s 12 of the Crimes (Local Courts Appeal and Review) Act. Therefore, if there were any basis upon which the integrity of the plea is seriously called into question or any other reason that would make it unfair for the court to act upon the plea, there would inevitably be a miscarriage of justice by refusing to allow the defendant to withdraw the plea and defend the charge.

20 In the proceedings before the first Magistrate the solicitor for the plaintiff informed the bench that the plea of guilty was “based on the provision of inadequate legal advice by his former legal representatives”. The nature of that advice was never revealed. It was said to have resulted in confusion on the part of the plaintiff, but it was a matter left for conjecture as to what it was that he was confused about or how that confusion impacted upon his decision to plead guilty. The submissions never touched on the crucial issue of what the plaintiff believed the plea of guilty meant or why it was that, notwithstanding his denials from the time he had been confronted with the allegation, he was prepared to plead guilty while legally represented.

21 It might be the case, as the first Magistrate found, that the plaintiff was no stranger to the courts and would have understood the nature of the charge against him. It can also be accepted that he had received the brief of the evidence and the allegation was a very simple one both factually and legally. But the allegation was that, because of “inadequate legal advice” and confusion that arose as a result of it, the plaintiff had entered a plea of guilty notwithstanding his denial of guilt. That allegation was never investigated, never considered by the Magistrate and never ruled upon either in favour of the plaintiff or against him. In the absence of evidence from the plaintiff to support the allegation, it could never have been properly determined one way or the other.

22 Of course the plaintiff had the onus of satisfying the Magistrate that a miscarriage of justice would have arisen had he not been permitted to withdraw his plea of guilty. Had he given evidence as to the circumstances in which he came to plead guilty and in particular, if he had asserted that for some reason or other he misunderstood the significance of his plea, questions of credit would arise and the matters to which the Magistrate referred in dismissing the application may have been highly relevant in that regard. Further, the Court of Criminal Appeal has indicated that a court should approach the question of allowing an accused to withdraw a plea “with caution bordering on circumspection” because of the significance of the plea of guilty: Liberti (1991) 55 A Crim R 120 at 122. But the magistrate did not address the real issue raised by the application and the question arises as to whether in those circumstances there was an error of law in the determination to dismiss the application.

23 However, before examining that question I should return to the proceedings before the second Magistrate, because, if his determination to refuse the application were attended by an error of law, it would be unnecessary to consider further the proceedings before the first Magistrate. I have already noted that immediately upon being informed by the plaintiff’s solicitor that an application was being made to withdraw the plea of guilty the second Magistrate indicated that he was not minded to hear the application because another magistrate had already determined it.

24 When the matter was called on before the Magistrate later in the day, counsel who was instructed to appear in the matter, informed the Magistrate that the application was “pressed or should I say renewed”. The Magistrate stated:

25 Counsel, rather than answering that question by simply indicating that the plaintiff was relying upon material not before the first Magistrate, embarked upon a dissertation on interlocutory orders. This involved his drawing analogies between the application before the court and evidentiary rulings and bail applications. It is always easy to be critical with hindsight, but with respect this was not helpful because it simply distracted the Magistrate from the real issue, which was why the Magistrate should embark upon a hearing of an application that had already been determined. The Magistrate quite properly drew distinctions between the examples used by counsel to explain the nature of interlocutory orders and the application before him.

26 There are four pages of transcript of counsel’s submissions to the Magistrate but they contain very few references to what was the real basis of the application: that there was material relied upon that was not before the first Magistrate. The references that were made to this matter were put rather obliquely and during the course of an explanation of interlocutory orders. I do not understand that the Magistrate was disputing the fact that the application was an interlocutory one rather he was disputing the right of the plaintiff to have such an application reheard when it had already been determined. Yet counsel did inform the Magistrate during the course of his submissions that he had an affidavit that was to be the basis of the application and that it had not been before the first Magistrate. He also told the Magistrate that “there is now sworn evidence and [the application] is made on grounds that are fully particularised in the sworn evidence”. He submitted that, because the affidavit provided “the necessary evidential basis” for the application and as that material was not before the first Magistrate, the second Magistrate was “not prohibited at law from dealing with the application”.

27 These references to the fact that the application was based upon material not before the first Magistrate should have been sufficient to alert the second Magistrate to the fact that not only did he have jurisdiction to entertain the application but he ought to do so unless he was of the view that the evidence to be relied upon was in substance the same material as that considered by the first Magistrate. He could not form that view without at least inquiring of counsel as to what was the material being relied upon and how it differed from that which was placed before the first Magistrate. But the Magistrate seemed to be unmoved by any assertion that there was fresh material and he dismissed the application. In the course of his brief reasons he stated:

28 I can understand that a court would be concerned that a defendant could have an application heard twice simply on the basis that, having chosen not to lead evidence on the first application, he wanted to call evidence on the second application. But that was the vice inherent in hearing the first application without evidence being placed before the court to support it. In any event, if the evidence to be relied upon in the second application merely reiterated the material placed before the first Magistrate from the bar table, the second Magistrate might have been entitled to find as a fact that the new material was not significantly different to justify a further hearing.

29 However, the second Magistrate refused to receive the affidavit or consider whether there was new material justifying a consideration of the application before him. He, erroneously in my opinion, believed that he ought not to hear the application made before him simply because the application had already been determined. In effect he refused to exercise his jurisdiction without good reason for doing so. The Crown Prosecutor accepted that this was an error of law and ultimately did not oppose leave being granted to hear the appeal in relation to the decision of the second Magistrate.

30 Initially I was asked to receive an affidavit by the plaintiff annexed to which was the affidavit that was sought to be relied upon in the proceedings before the second Magistrate. It was put before me on the basis that, if the appeal succeeded, I might consider the application myself rather than returning it to the Local Court. I declined to read the affidavit as it seemed to me that, in the event of the appeal succeeding, the most appropriate way to dispose of the matter was for the Local Court to consider the application afresh because it involved hearing evidence from the plaintiff.

31 However, I want to make it clear that it is for the magistrate before whom the application comes to determine whether there is material that warrants the further application being heard. I have accepted that the affidavit does contain material that at least requires a consideration of that issue in so far as it does contain particulars of the facts and circumstances leading up to the plea of guilty that were missing from the account given to the first Magistrate by the solicitor appearing for the plaintiff.

32 I also want to make it clear that I have not considered the merits of the application. I can draw some inferences about what is contained in the affidavit of the plaintiff at least to the extent that I understand that the plaintiff is asserting that he pleaded guilty after receiving some advice from his legal representative and notwithstanding that he was denying his guilt. For the assistance of the magistrate determining the application and without expressing any view of the success or otherwise of the application I make the following comments.

33 A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea “is not in truth guilty of the offence”: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

34 There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell, above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty “within one verbal formula”.

35 If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff’s antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.

36 If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34].

37 But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.

38 An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison (2003) 138 A Crim R 378 at 384 under the heading “I am not guilty but I’ll plead guilty”. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.

39 I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, he must establish “a good and substantial reason for the Court taking that course”: Sewell at [39]. It goes without saying that the fact that the defendant asserts he is not in truth guilty of the offence is not itself a “good and substantial reason” for allowing the application.

40 Nor would the fact that the plaintiff’s present legal representatives have instructions inconsistent with the plea of guilty be a reason to permit the withdrawal of the plea. If by his submission to the first Magistrate that he was not able to “put to the Court a plea of guilty” the plaintiff’s solicitor meant that he could not represent the plaintiff on a plea of guilty because of his instructions that the plaintiff was not guilty, the submission was with respect without foundation. It should be clear from what I have written above, that there is no difficulty, either ethically or otherwise, with a solicitor appearing for a defendant on a plea of guilty notwithstanding that the person has given instructions denying guilt. If it were otherwise, the defendant could avoid the consequences of a plea of guilty simply by changing legal representatives. Meissner makes it quite clear that there is nothing necessarily inconsistent in the fact that a person pleads guilty and yet asserts that he is innocent of the crime charged.

41 Having reached the conclusion that leave should be granted and the appeal allowed in respect of the decision of the second Magistrate, it is unnecessary to consider further the decision of the first Magistrate. The appropriate order to make is one refusing leave to appeal against that decision and that is the order I make.

42 Leave is granted to appeal against the decision of the second Magistrate on 11 August 2002 dismissing the plaintiff’s application. The appeal is allowed and the order quashed. The matter is remitted to the Local Court to be heard according to law and conformably with this judgment. In accordance with an agreement between the parties I order that each party is to pay its own costs.

43 Since judgment was handed down the Court has been informed that there was no agreement between the parties as previously advised. A short time after the Court had adjourned, it was notified that there had been an agreement reached between the parties but in terms different to those that had been earlier stated. By consent the order previously made as to costs is withdrawn and the Court now orders that the defendant pays the costs of the plaintiff.

**********

03/03/2005 - Additional paragraph added. - Paragraph(s) 43

Citations

Wong v Director of Public Prosecutions [2005] NSWSC 129

Most Recent Citation

Cases Citing This Decision

52

Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202

Macfarlane v The Queen [2022] SASCA 46

Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382

Cases Cited

13

Statutory Material Cited

2

R v Sewell [2001] NSWCCA 299

Bienstein v Bienstein [2003] HCA 7

Meissner v the Queen [1995] HCA 41

Actions

Download as PDF Download as Word Document

CITATION:	Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24/02/2005
JUDGMENT DATE :	3 March 2005
JUDGMENT OF:	Howie J at 1
DECISION:	Leave is granted to appeal against the decision of the second Magistrate on 11 August 2002 dismissing the plaintiff's application. The appeal is allowed and the order quashed. The matter is remitted to the Local Court to be heard according to law and conformably with this judgment. The defendant is to pay the costs of the plaintiff.

CATCHWORDS:	Criminal Law - Practice and Procedure - Applications to withdraw a plea of guilty in Local Court - First application determined without evidence - Second application refused without hearing merits - Failure by second magistrate to exercise jurisdiction an error of law.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 - ss 12, 53(3) Crimes Act 1900 - s 61N(2)
CASES CITED:	DPP (NSW) v Scheibel (2004) A Crim R 576 R v Sewell [2001] NSWCCA 299 Hall v Nominal Defendant (1966) 117 CLR 423 R v Boag (1994) 73 A Crim R 35 R v Van (2002) NSWCCA 148 Meissner v The Queen (1995) 184 CLR 132 Liberti (1991) 55 A Crim R 120 R v Allison (2003) 138 A Crim R 378
PARTIES:	Ming Yuk (Raymond) Wong v The Director of Public Prosecutions
FILE NUMBER(S):	SC 12889/04
COUNSEL:	A. Howen - Plaintiff J. Girdham - Defendant
SOLICITORS:	Ward Maxwell & Co - Plaintiff S. Kavanagh - Defendant