Stuart v R

1. [1]

   KIRK JA: In this remarkable case the applicant seeks leave to appeal on the basis that a miscarriage of justice has occurred with respect to pleas of guilty entered on his behalf by his then solicitor. He claims, and has established, that he did not give his solicitor instructions to plead guilty to two of the charges in question. He was not asked either in the Local Court where the charges were first dealt with, or in the District Court when being sentenced, personally to confirm his pleas of guilt. Nor were the charges ever read out to him in those courts prior to the commencement of the sentencing judgment.

2. [2]

   Leave to appeal should be granted and the two disputed convictions quashed, with the charges to be retried. Further, the aggregate sentence imposed with respect to seven charges, including the disputed two charges, cannot stand in these circumstances and the applicant will need to be resentenced.

3. [3]

   In what follows I set out the relevant legal principles, then address the facts of the case, then determine the issues in the application. Before doing so, however, it is appropriate to say something about the procedures adopted in the courts below.

The procedures adopted in the Local and District Courts

1. [4]

   The applicant has not submitted that the miscarriage of justice was constituted by the procedures adopted by the courts below. However, those procedures undoubtedly played some role in what occurred and they should not go unremarked.

2. [5]

   Section 97(1) of the Criminal Procedure Act 1986 (NSW) provides that “[a]n accused person may at any time in committal proceedings plead guilty to an offence”. Section 97(6) states that “[i]f the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence”. The progenitor of this provision was considered in R v Paauwe [1971] 2 NSWLR 235 at 238. This Court there said that “[i]t being open to the accused now to plead guilty before the magistrate to an indictable offence, we can see no reason why his counsel or attorney should not in his presence answer for him”.

3. [6]

   Section 59 of the Criminal Procedure Act reads, relevantly:

4. [7]

   The content of the required oral and written explanations is set out in regs 9A and 9B of the Criminal Procedure Regulation 2017 (NSW). The oral explanation to be given to the accused under reg 9A involves the following statements:

5. [8]

   Although s 97(1) allows the accused to plead guilty at any time in committal proceedings, the statutory scheme contemplates that in general a plea will not be required until after a case conference certificate has been filed: Criminal Procedure Act, ss 55, 59, 70, 72, 74, 75, 94-96; note also Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D.

6. [9]

   Nothing in the Criminal Procedure Act or the regulations expressly requires the charges to be read to the accused. However, as noted, the model explanation required by reg 9A includes the statement that “[t]he Magistrate will ask you whether you plead guilty or not guilty to each offence proceeding” (emphasis added). That looks forward to what will occur before a magistrate after a case conference. It is difficult to see how a magistrate could ask an accused whether they pleaded guilty or not guilty to each offence proceeding without identifying each offence.

7. [10]

   In Paauwe, over 50 years ago, this Court explained that in committal proceedings for indictable offences, under the then legal regime, “the invariable practice has been that the charge is read out to [the accused]” (at 238). There was good reason for that practice.

8. [11]

   The District Court Criminal Practice Note 20 contemplates that when an accused is committed for sentence by the Local Court they will be arraigned: see at [5]-[9]. An arraignment involves “(1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking whether he is guilty or not”: Amagwula v R [2019] NSWCCA 156 at [26]. However, it is not necessary that the accused be arraigned: s 102(1) of the Criminal Procedure Act. The applicant here was not arraigned in the District Court.

9. [12]

   Indeed, as addressed in more detail below, at no stage were the charges read out to the applicant. The first listing of the charges in his presence in court occurred when the sentencing judge commenced delivering her sentencing judgment. Nor was he asked at any stage in either the Local or District Court whether he was pleading guilty or not guilty. This is despite the explanation given to the applicant by Viney LCM on 24 July 2020, when her Honour foreshadowed – consistently with the explanation required by reg 9A – that the applicant would be asked how he would plead. Instead, after the case conference had occurred Mijovich LCM merely accepted the applicant’s plea after both the applicant’s solicitor and the DPP’s solicitor indicated, in a rather cursory fashion, that the applicant would be entering pleas of guilty to all charges.

10. [13]

    Thirty years ago, in R v Duffield (1992) 28 NSWLR 638 at 655-656, Kirby P made the following observations about the importance of requiring a public plea of guilty by an accused in a criminal matter:

11. [14]

    The present case illustrates the wisdom of those observations. Had the courts below here required “a public acknowledgment of a plea of guilty from the lips of the accused person” then the difficulties which have since arisen would most likely have been avoided.

12. [15]

    Of course, a court is entitled to rely on what is said by a legal practitioner on behalf of their client. This case is remarkable because the solicitor was in fact not acting in accordance with his instructions. But even allowing for the exceptional nature of this case, requiring a public acknowledgement by the accused person both reflects the solemnity of what is occurring and may assist to avoid later claims that the plea was not properly entered.

Relevant Legal Principles

1. [16]

   The applicable legal principles were not in dispute. When a plea of guilty is sought to be withdrawn on appeal the ultimate question is whether a miscarriage of justice has occurred. The Court has particular regard to two issues: whether a sufficient question arises about the integrity of the plea, and whether there is a real or triable question about the guilt of the accused: see eg Rotner v R [2011] NSWCCA 207 at [47]-[50]. The latter issue does not set a high threshold; the Court is not required to investigate the guilt or innocence of the accused. The principles have been set out and applied in a number of cases: eg R v Van (2002) 129 A Crim R 229; [2002] NSWCCA 148; R v Thalari (2009) NSWLR 307; [2009] NSWCCA 170; Layt v R [2020] NSWCCA 231; Bobbe v R (No 2) [2021] NSWCCA 150.

2. [17]

   In Layt, at [27], Payne JA listed examples where a sufficient question has arisen about the integrity of the plea:

3. [18]

   The applicant says that the first, fourth and sixth examples are applicable to the present case.

4. [19]

   The Crown draws attention to the observation that a person who maintains they are not guilty of an offence may plead guilty in the exercise of a free choice because they perceive it as being in their best interests to do so: Meissner v The Queen (1995) 184 CLR 132 at 141, [1995] HCA 41; Ming Yuk (Raymond) Wong v Director of Public Prosecutions (2005) 155 A Crim R 37; [2005] NSWSC 129 at [33]-[37].

5. [20]

   As this case turns on a factual question, it should be recalled that the applicant has the onus of establishing a miscarriage of justice on the balance of probabilities: note Ke v R [2021] NSWCCA 177 at [16].

Facts

1. [21]

   Affidavits from the following witnesses were read in the appeal to this Court:

   1. (1)

      the applicant;

   2. (2)

      Mr Michael Stuart, the applicant’s brother;

   3. (3)

      Ms Pip Hill, a solicitor at the Legal Aid Commission of NSW with carriage of the applicant’s matter in this Court;

   4. (4)

      Mr James Maspero, the applicant’s solicitor in the proceedings below;

   5. (5)

      Ms Yeabee Kim, a solicitor at the Office of the Director of Public Prosecutions (ODPP).

2. [22]

   The applicant, Mr Michael Stuart and Mr Maspero were cross-examined.

3. [23]

   The charges arose out of events which occurred on the night of 20 February 2020. The events need only be described briefly here. The applicant was with a friend on the friend’s boat. He had consumed about half a bottle of rum. At about 8:00pm he telephoned a woman with whom he was friendly to ask her to pick him up. At about 9:30pm she met the applicant and drove him to his unit. They began to watch a film. The applicant began playing with a firearm, which he accidentally discharged into the carpet. The woman sought to leave. The applicant assaulted the woman, who screamed. A neighbour called the police. The woman fled.

4. [24]

   Police officers arrived in proximity to the unit. They treated the situation as a “siege”. Whether or not the applicant realised there was a siege is disputed. One of the police, Senior Constable Brett Ransley, subsequently gave a statement in which he stated that he saw the applicant yelling and screaming and throwing objects off his balcony. He said he saw the applicant pointing a firearm in the direction of what he believed to be a nearby school. He said he heard the firearm discharging and the sound of glass smashing immediately after. He also said that the applicant continued to point the firearm towards the school, but did not discharge it again. More police officers arrived, including negotiators, and the applicant was arrested in the early hours of 21 February 2020.

5. [25]

   On 21 February 2020 the applicant was charged with, it seems, five offences. This Court has been provided with a police statement of facts and a court attendance notice dated 21 February 2020 which lists five offences. However, the materials also include 10 separate charges also purportedly dated 21 February 2020. I infer that these documents may have been created later, but the date was not changed. In any case there were 10 charges in the charge certificate issued by the ODPP in July 2020. The 10 offences listed on that certificate were as follows:

6. [26]

   The fourth and ninth charges are the offences for which the applicant seeks to withdraw the pleas of guilty. The fourth charge was one of the five original charges. The ninth charge was one of the charges apparently added later by the ODPP. As described below, the first and fifth charges ended up being withdrawn by the prosecution.

7. [27]

   The applicant’s solicitor in the proceedings below, Mr Maspero, was seemingly retained because he was a neighbour of the applicant’s brother, and the brother asked Mr Maspero to attend on the applicant in gaol. Mr Maspero first saw the applicant at Silverwater Correctional Centre on 23 March 2020. In his affidavit the applicant explains:

8. [28]

   In oral evidence-in-chief the applicant said that, upon reflection, he thought Mr Maspero only had the “charge sheet” not the police statement of facts. It was pointed out to him in cross-examination that the original police charges did not include the offence of hindering arrest with a weapon (this point presupposes that only five charges were laid on 21 February 2020 – as to which, see [25] above). Nor did the police statement of facts refer to the applicant shooting towards a school. Nothing turns on this issue in light of the evidence of Mr Maspero referred to in the next paragraph. Given the passage of time, the possible errors in this evidence of the applicant do not weigh in any material way against his credit.

9. [29]

   Mr Maspero offers a different account of their first meeting. He does not say that he read through either the police statement of facts or charge sheet with the applicant:

10. [30]

    He reiterated orally that he did not have any paperwork when he visited the applicant at Silverwater in March. In his affidavit, Mr Maspero refers to no subsequent meeting with the applicant until 24 August 2020. Nor is there any suggestion that he obtained instructions from the applicant, by any means, that he wished to plead guilty to any offences prior to that date. He stated orally that “it’s only when I went through the agreed facts is when I got the instructions to plead guilty”. The first version of the draft agreed facts was only provided by the ODPP in July 2020.

11. [31]

    On 21 April 2020 a Detective Senior Constable in the NSW Police Force, Andrew Jeffrey, sent an email to a person in the ODPP in which he wrote: “[t]he solicitor Jim Maspero contacted me yesterday and informed me that it will be a guilty plea and he didn’t require the certificate”. The reference to “the certificate” may relate to a ballistics certificate. In cross-examination Mr Maspero agreed that he had visited the detective on about 20 April 2020 to inspect the gun used in the incident. When asked if he had told the detective that it would be a guilty plea he said “I can’t remember if I said that or not”. Given the subsequent emails Mr Maspero sent on 24 June and 2 July 2020, and given Detective Jeffrey would have no reason to misstate the position, I conclude that Mr Maspero did tell the officer that the applicant would be pleading guilty.

12. [32]

    On 19 June 2020 the matter was mentioned in Gosford Local Court before Railton LCM. The matter was adjourned to 10 July 2020 for the charges to be finalised.

13. [33]

    On 24 June 2020 Mr Maspero sent an email to a Mr Boyd, a solicitor at the ODPP, in which Mr Maspero said that the applicant “has instructed to plead guilty to all charges”.

14. [34]

    On 2 July 2020, in a further email to Mr Boyd, Mr Maspero again indicated that “[m]y client is pleading guilty”. This is despite Mr Boyd’s indication in the immediately previous email, sent on 1 July 2020, that “there may be some changes to the charges” (emphasis in original) and that he could not confirm “until the charges are certified by a Crown Prosecutor”.

15. [35]

    On his own evidence, which is consistent on this point with the evidence of the applicant, Mr Maspero was acting without any instructions in communicating to the prosecution on these three occasions that the applicant would be pleading guilty. Even if he had had those instructions, by communicating these indications Mr Maspero undermined the applicant’s ability to seek to negotiate with the ODPP as to what pleas of guilty might be offered in return for some charges being dropped. That ability has been given express statutory recognition in the provisions dealing with case conferences: Criminal Procedure Act, ss 70(2), 75(1)(b)-(d), 77.

16. [36]

    This extraordinary conduct suggests that Mr Maspero had reached an early and clear view as to how the case should be conducted, and one which paid little regard to the applicant’s views.

17. [37]

    In the course of the correspondence between Mr Maspero and Mr Boyd between 24 June and 2 July 2020, Mr Boyd suggested to Mr Maspero that he “mention the matter by consent on the 10th and save [Mr Maspero] a trip”. Accordingly, on 10 July 2020 when the matter was mentioned in Gosford Local Court before Barnett LCM, Mr Maspero did not attend. The applicant appeared by AVL. Barnett LCM asked the applicant how long it was since he had spoken to Mr Maspero, to which the applicant responded “[i]t’s been a while now yeah”. The Crown sought an adjournment until 24 July 2020, which was granted. The following exchange then occurred between the applicant and the magistrate:

18. [38]

    It is not clear what the applicant was referring to when he spoke of “the intent being dropped”.

19. [39]

    On 23 July 2020 Mr Boyd sent an email to Mr Maspero attaching the charge certificate and a s 166 certificate. He also wrote: “I have also attached some draft facts reflecting the charges in the certificates so you can seek instructions ahead of a case conference”. The charge certificate listed 10 offences, as set out in the table above.

20. [40]

    The description of the two disputed charges in the charge certificate was that the applicant did the following between 20 February 2020 and 21 February 2020 at East Gosford:

21. [41]

    On 24 July 2020 the matter came before Viney LCM for mention. Her Honour made a statement as required by the regulations, as quoted above at [7]. Her Honour adjourned the matter until 18 September 2020.

22. [42]

    On 27 July 2020 Mr Maspero sent a letter to the applicant at Long Bay Gaol enclosing a court attendance notice, a draft statement of agreed facts, a charge certificate coversheet, and sections of legislation relating to the offences with which the applicant was charged. He asked him to check the fact sheet. He said that there was to be a case conference on 15 September 2020, which “is where I will negotiate if with [sic] the DPP if any of the charges may be dropped or down graded”. He said: “I also need to know if you intend to plead guilty to all the charges, bearing in mind any downgrades”. He said he would “organise for a phone hook up with you in the next week or so”.

23. [43]

    This letter manifests a lawyer appropriately seeking instructions as to how to proceed. The fact that he was seeking these instructions confirms that no such instructions had previously been given by the applicant, despite the three communications to the prosecution that the applicant would be pleading guilty.

24. [44]

    Mr Maspero attended on the applicant in person at Long Bay Gaol on 24 August 2020. The applicant’s account of the meeting, in his affidavit, was as follows:

25. [45]

    Mr Maspero’s account of the meeting differed substantially. He said the following in his affidavit:

26. [46]

    In his oral evidence Mr Maspero said that he had spent an hour (rather than half an hour) going through the material with the applicant. Under cross-examination he gave the following evidence:

27. [47]

    This evidence is somewhat contradictory, but at the least it suggests that Mr Maspero’s focus in the meeting may have been more on going through the facts than on going through the charges and their elements.

28. [48]

    Mr Maspero had said, in a letter to the applicant’s current solicitor dated 30 December 2021, that on 24 August 2020 “I also went through in detail of the [sic] charges and stated that the evidence against him was strong”. He said: “On my advice he agreed to plead guilty to the charges”. This statement is consistent with Mr Maspero having had a clear view about how the applicant should plead.

29. [49]

    In a recent letter to the ODPP, Mr Maspero stated “[a]s far as I remember Mr Stuart never raised issues about sequences 4 or 9” (emphasis added). Raising issues about pleading guilty to serious charges is the sort of thing one might expect a lawyer to have a clear note from which one’s memory might be revived, if not directly remember. This statement does not inspire confidence in Mr Maspero’s recollection of events.

30. [50]

    No file notes of any interactions between Mr Maspero and the applicant have been produced.

31. [51]

    On 11 September 2020 Mr Dickinson, a senior solicitor at the ODPP, sent Mr Maspero a draft set of agreed facts in advance of a case conference to be held on 15 September 2020. This version differed somewhat from the version sent on 23 July 2020. In the following days the pair discussed by email some possible amendments to the agreed facts, although there appears to have been some confusion about which paragraph numbers each was referring to. In cross-examination the applicant accepted that the changes requested by Mr Maspero in these emails were consistent with what the applicant had told him on 24 August. But, he testified, he had raised “many other things too”.

32. [52]

    In the end, the ODPP agreed to one change to the draft statement of agreed facts sent on 11 September 2020.

33. [53]

    The statement of agreed facts had provision for the applicant to sign it. In an email of 16 September 2020 Mr Maspero indicated that he was “unable to have the client sign” the agreed facts, but said “[h]owever he is aware of the document through his brother”. Mr Dickinson replied observing that “documents rarely (if ever) get signed by the offender when they are in custody”, adding that “[p]roviding he adheres to his plea in the [District Court], there won’t be any issue”. Mr Maspero emailed Mr Dickinson a copy of the agreed facts signed by himself.

34. [54]

    In cross-examination Mr Maspero stated he did not know why he was unable to have the applicant sign the agreed facts. He stated that the applicant was in gaol and “I was in contact with his brother, Mick, and he got a full brief, he had all the information”. He accepted that he could have sent it to the gaol for signature, or that he could have sent it to the AVL suite to be signed before the committal hearing on 18 September 2020.

35. [55]

    It will be recalled that the applicant’s evidence was that he had refused to sign the agreed facts and that this made Mr Maspero annoyed. It is not necessary to decide if that evidence should be accepted.

36. [56]

    Mr Maspero accepted in cross-examination that he never obtained written instructions from the applicant to plead guilty to the charges, nor written confirmation of his plea, nor did he seek at any stage that the applicant sign the agreed statement of facts. Nor did he seek that the applicant be arraigned in the District Court.

37. [57]

    It is worth noting the evidence of the applicant’s brother, Mr Michael Stuart, at this point. He stated the following in his affidavit:

38. [58]

    I do not place much weight on the evidence at [4], as Mr Stuart candidly accepted in cross-examination that prior to preparing his affidavit he and his brother had discussed what had occurred and sought to piece together conversations between them.

39. [59]

    However, his other evidence – which was not shaken in cross-examination – is more significant. It confirms that Mr Stuart was a conduit of information between the applicant and Mr Maspero (consistently with the evidence of both the applicant and Mr Maspero); that Mr Stuart told the applicant that some charges had been dropped after negotiations with the ODPP, without indicating which charges; and that on the evening of the day of the sentencing hearing the applicant was upset about the way in which Mr Maspero had represented him.

40. [60]

    As to Mr Stuart’s role as a conduit, this was not the most reliable means for a lawyer to communicate with his client on matters of importance and complexity.

41. [61]

    The applicant said in cross-examination, with respect to the two disputed charges, that “[b]y the time of sentencing I was under the impression that they’d been dropped”.

42. [62]

    The entirety of the re-examination of the applicant was as follows:

43. [63]

    The second answer is confusing. The reference to “he was going to see the prosecutor” suggests that the answer is about what occurred on 24 August 2020. If so, that might indicate that the applicant did instruct Mr Maspero to plead guilty. However, I do not think that is what the applicant meant. He made clear in his written and oral evidence that on 24 August 2020 he told Mr Maspero he would not plead guilty to the two disputed charges. Critically, the dropping of two charges only occurred after discussions between Mr Maspero and the ODPP in September 2020. I think this answer is best understood as the applicant indicating that at some stage after dropping of the two charges he was prepared to accept the draft agreed facts (presumably even though the ODPP did not agree to many of the changes requested) as he understood that the two disputed charges had been dropped.

44. [64]

    This evidence explains why there may have been a misunderstanding between Mr Maspero and the applicant after September 2020. But it does not explain or reconcile their starkly different versions of what instructions had been given on 24 August. It would be reconcilable if there were evidence that prior to 24 August 2020 the prosecutor had made an offer to drop two of the charges. If that had occurred, then it might suggest that the applicant had instructed Mr Maspero to plead guilty to all remaining charges based on an incorrect understanding of what those charges were. But there is no evidence of any such offer. The closest the evidence comes is an email from Mr Boyd to Mr Maspero of 23 July 2020, which attached the charge certificate and draft facts, stated that “the Crown is open to receiving any offers and considering them prior to the case conference”. It does not contain any offer.

45. [65]

    There is one further conceivably relevant bit of evidence. As quoted above at [37], on 10 July 2020 the applicant had suggested to Barnett LCM that “[t]here was talk of the intent being dropped”. That evidence suggests that someone had suggested to the applicant that at least one of the charges might be dropped. But it was only one charge; it is not clear which charge was being referred to; it is not clear who had suggested it; and this was prior to the charges being finalised (and added to) in the charge certificate.

46. [66]

    The committal hearing took place before Mijovich LCM on 18 September 2020. After noting the existence of both a summary matter to be dealt with by the police and the non-summary matters being brought by the DPP, Mr Maspero explained to his Honour that “pleas are being entered today and the matter is being committed for sentence”. After some brief discussion about the contents of the case conference certificate, the following exchange occurred:

47. [67]

    The committal hearing therefore occurred without any express entering of a plea by either the applicant or by Mr Maspero on the applicant’s behalf. Instead, Mr Maspero indicated very generally that the applicant would be entering pleas, before Mr Dickinson, the DPP’s solicitor, explained more specifically that the applicant would “enter pleas to certain sequences”, namely sequences 2, 3, 4, 6, 7, 8 and 9. Neither of them actually said in terms that the applicant was pleading “guilty”. The magistrate announced that he would “accept” the applicant’s pleas to those sequences. Neither on this occasion, nor on the previous occasions in the Local Court, were the charges read aloud to the applicant. Indeed, none of them except the malicious damage was identified at all except by way of a sequence number.

48. [68]

    The matter was mentioned briefly before Bright DCJ on 15 October 2020. Her Honour set down the matter for hearing on 5 February 2021.

49. [69]

    In his affidavit, the applicant explained that the sentencing hearing on 5 February 2021 was only the third time he had met Mr Maspero in person. He explained that Mr Maspero did not come to see him in the cells before or after the hearing. These facts were not disputed by Mr Maspero. More generally, the applicant also said that prior to this time, apart from being visited by Mr Maspero at Silverwater and Long Bay, he only saw Mr Maspero by video link at court on a number of occasions and “[w]e spoke briefly on the phone before the appearances but not after”.

50. [70]

    In oral sentencing submissions both representatives addressed an issue as to whether or not the applicant had shot towards a school. Mr Maspero disputed that the applicant had shot towards the school nominated; the Crown pointed out that that had been accepted in the agreed facts. The applicant did not interrupt these submissions.

51. [71]

    However, as Bright DCJ delivered her remarks on sentence the applicant interjected twice. On the first occasion, he asked to have a word with Mr Maspero. The remarks on sentence then record the following exchange:

52. [72]

    On the second occasion, the transcript records the following:

53. [73]

    The applicant’s protest, recited by Mr Maspero, that there was no stand-off with the police was in direct opposition to sequence 9. That charge involved use of a firearm to prevent lawful detention. Saying “[a]s far as the police there was no stand-off, apparently he was asleep on the lounge” involved denying that there had been any attempt to avoid detention, let alone by use of a weapon.

54. [74]

    Mr Maspero gave evidence that the applicant “did become very agitated about part of the judges [sic] reasoning”, that he went downstairs to talk to him, and that “[a] number of the matters he was complaining about which I had not addressed were in the Fritchley report and the judge then stated that she had taken note of those matters when I stated Mr Stuart’s grievances”. Mr Maspero did not address the fact that what he himself recited to the primary judge was inconsistent with maintaining a plea of guilty on sequence 9.

55. [75]

    The Crown noted that the applicant had not protested earlier during the judge’s remarks on sentence, even when her Honour had recited the charges and the facts founding the charges. The issue was raised with the applicant:

56. [76]

    Many lawyers, let alone those accused, would hesitate before interrupting a judge delivering a judgment. The suggestion that the applicant would be intimidated from interrupting a judge who was sentencing them is entirely plausible and I accept it. It is supported by the fact that the applicant’s second interruption occurred just after the primary judge had made remarks on the victim impact statement and was turning to address the applicant’s subjective circumstances. His interruption was not prompted by what the judge had just been saying but was evidently a response to what her Honour had said earlier. Critically, the two interjections the applicant did make were prior to the judge indicating what sentence would be imposed.

57. [77]

    As for the report of the psychologist, Ms Fritchley, Mr Maspero claims in his affidavit that it records an admission by the applicant that he discharged his gun. This claim is wrong, and the fact of it having been made reflects poorly on Mr Maspero. The part of the report to which he refers begins with the words “I note from the fact sheets …”. The report does not record the applicant as having admitted to Ms Fritchley that he discharged the gun.

58. [78]

    As for the sentence imposed, with respect to the two disputed charges, along with sequences 2, 3, 6 and 7, the primary judge imposed an aggregate sentence of 8 years and 6 months dating from 21 February 2020, with a non-parole period of 5 years and 8 months. In relation to sequence 8 (intimidation) her Honour imposed a community correction order of 12 months. Sequence 10 was the summary charge of possess ammunition, for which her Honour recorded a conviction but with no further penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Determination

1. [79]

   As outlined above, two key issues arise in considering whether the applicant has made out a miscarriage of justice: whether there is reason to doubt the integrity of the plea and whether or not there is a triable issue.

2. [80]

   The following points emerge from the evidence recited above:

   1. (1)

      The applicant does not seek to withdraw all of his pleas of guilty; he disputes just two of them.

   2. (2)

      It is not disputed that on three occasions Mr Maspero informed representatives of the prosecution that his client would plead guilty before he had been through the charges and alleged facts with the applicant, and before receiving any instructions as to how the applicant would plead.

   3. (3)

      The applicant did not sign the statement of agreed facts. He says that he refused to do so. In emails to the DPP Mr Maspero indicated it was not possible to obtain a signature, but he did not explain why. At the least, Mr Maspero made little effort to do so.

   4. (4)

      There is no written record whatsoever of the applicant having instructed Mr Maspero that he wished to plead guilty to the two disputed charges (or, indeed, to any charges at all).

   5. (5)

      Two of the charges were dropped prior to the applicant being committed for sentencing. Mr Maspero communicated that fact to the applicant through the applicant’s brother. It is entirely possible that the applicant understood that the two disputed charges were the ones that were discontinued.

   6. (6)

      At no stage in any of the court proceedings, prior to delivery of the sentencing judgment, were the charges read out to the applicant. At no stage was he asked to confirm his plea.

   7. (7)

      The applicant twice interrupted the judge’s sentencing remarks to raise concerns about what was occurring. After the second interruption Mr Maspero spoke to the applicant, then informed the Court some of the applicant’s concerns. One of the points raised by Mr Maspero was inconsistent with a plea of guilty on the ninth charge.

   8. (8)

      These protests were made before any sentence had been pronounced. This is not a case where it might be thought an applicant raised issues about the plea only having heard, and been disappointed by, the sentence imposed.

   9. (9)

      The applicant’s evidence that he never instructed Mr Maspero to plead guilty to the two disputed charges gains some support from the evidence of the applicant’s brother about the applicant’s immediate concern on the day of the sentencing about what had occurred.

   10. (10)

       Mr Maspero had relatively poor recall of the events in question.

3. [81]

   The only time that Mr Maspero claims that he was instructed by the applicant to plead guilty was on 24 August 2020 in the meeting at Long Bay Gaol. The applicant denies he gave any such instruction. There is a direct conflict in their evidence. Ordinarily a court would be hesitant not to accept evidence from a legal practitioner. But this is not an ordinary case.

4. [82]

   The applicant was often impassioned when giving his evidence. In the circumstances of this case that does not undermine his credibility. His version of events is supported by what occurred during the remarks on sentencing and by the evidence of his brother.

5. [83]

   Mr Maspero was not an impressive witness. He provided an affidavit which was surprisingly cursory given the significance of what was at stake. He had been subpoenaed by the Crown to appear. He gave evidence by audio-visual link, having declined to attend court because of a medical condition which he said had come on a day or so before and which impeded his mobility. He was cross-examined about this. His explanation for his inability to attend in person was thin. However, in the end the parties did not ask for an adjournment to enable him to be questioned in person.

6. [84]

   Both in his affidavit and in his oral testimony he appeared reluctant to make efforts to recall and recount in detail what had occurred. For instance, the day before the hearing a solicitor from the ODPP had emailed him telling him he would need to have identified material available to him when he was giving evidence. Counsel for the Crown asked him to refer to some of that material, leading to the following exchange:

7. [85]

   A further flavour of his oral testimony is illustrated by the following exchange, in the context of questions about his claimed medical condition:

8. [86]

   As noted above, Mr Maspero could not offer any explanation for why he had indicated to the prosecution three times that the applicant would plead guilty without obtaining instructions. This behaviour suggests that Mr Maspero’s views as to the conduct of the case were not greatly dependent on the views and instructions of the applicant. That means, in turn, that the applicant’s claim that Mr Maspero acted without instructions is plausible.

9. [87]

   In his affidavit Mr Maspero gave evidence that he had visited the site of the incident with Mr Michael Stuart shortly before visiting the applicant at Long Bay. Mr Maspero made clear that he thought the applicant had a difficult case and would be better off obtaining a discount on sentence for pleading guilty. The applicant said that Mr Maspero told him the evidence “was overwhelming”. Overall, Mr Maspero gave an impression of a practitioner who had reached a strong view.

10. [88]

    It is not necessary to determine in this case whether or not Mr Maspero did believe that he was given instructions to plead guilty to all of the charges. It is conceivable that there were miscommunications and misunderstandings. It is because of the very possibility of such occurring that legal practitioners generally obtain detailed written confirmation of instructions to plead guilty, a step Mr Maspero failed to take. Wise practitioners – or even ordinary ones – would also not place great reliance on employing a client’s relative to transmit important and complex matters to their client. It is possible that Mr Maspero did not deliberately ignore an instruction not to plead guilty to the two disputed charges but, influenced by his own strong views, taken together with his proclivity to take a course without the benefit of instructions, did not realise that the applicant was not prepared to plead guilty to the two charges.

11. [89]

    I have noted at [64] above one possible way that the competing versions might be reconciled, namely that the applicant did instruct Mr Maspero on 24 August 2020 to plead guilty on all charges, based on a misunderstanding of what the charges were. However, this version is not consistent with what is known about the timing of the prosecutor’s offer to drop the two charges. In any case, if that was what occurred, it would still indicate that the applicant did not intend to admit guilt to the two disputed charges.

12. [90]

    The applicant’s evidence about not giving instructions to plead guilty on the two charges was credible and is consistent with and supported by the course of events. The evidence of Mr Maspero appears unreliable. The applicant’s evidence on this point should be accepted.

13. [91]

    In light of these findings, the case is one where the plea is made in circumstances suggesting it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46. It is also a case in which there has been a “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: Sagiv v R (1986) 22 A Crim R 73 at 80.

14. [92]

    The Crown concedes that both sequences 4 and 9 involve triable issues. The concession was rightly made. This issue can be dealt with briefly.

15. [93]

    As to sequence 4 – the offence of discharging a firearm at a dwelling-house or building – the applicant submitted that there would be real questions in respect of two elements, namely, whether the firearm was discharged and whether it was discharged at a dwelling-house or building. As to whether the firearm was in fact discharged, the applicant makes a number of points. First, there was only one eyewitness to the alleged discharge of the firearm by the applicant while he was on the balcony (at least on the current brief of evidence), being Senior Constable Ransley. The Senior Constable explained that it “was dark” and referred only to what he said “appeared to be a short firearm in his arm” (emphasis added). Secondly, Senior Constable Ransley says he heard a firearm discharging then “the sound of glass smashing”, but there is no evidence of any window being broken at the school or elsewhere. Thirdly, the evidence of the neighbour was that there was only one shot, whereas the Crown case was that two shots were fired, one indoors and one on the balcony. Fourthly, the brief does not record any exhibits having been seized consistent with a shot having been discharged from the balcony, such as a spent cartridge.

16. [94]

    In respect of whether the firearm was discharged at a dwelling-house or other building, the applicant says there is vagueness in Senior Constable Ransley’s evidence that the applicant was pointing the firearm “into the direction of what I believed to be St Patricks school”, especially when his evidence was that it was dark. The applicant also repeats his point about the lack of evidence of a broken window.

17. [95]

    Sequence 9 concerned an offence of threatening to use a firearm with intent to hinder his lawful apprehension. The applicant says that there are real questions both as to whether he threatened to use a firearm and as to whether he had the requisite intent. As to the former, he says that the evidence of Senior Constable Ransley falls short of what would be required in order to prove a threat, given that his evidence was only:

18. [96]

    Thus, as the brief currently stands, there is no evidence that the applicant pointed the firearm at the police. In respect of intent, the applicant notes that the offence is one of specific intent, such that evidence of intoxication may be taken into account.

19. [97]

    It is not necessary to express a view on the strength of all these points other than to note that they suffice to indicate that there is a triable issue on both charges.

20. [98]

    A miscarriage of justice has thus been established with respect to the two disputed charges, sequences 4 and 9. Those convictions must be quashed and the matter remitted to the District Court for retrial.

21. [99]

    As noted, the primary judge imposed an aggregate sentence with respect to these charges together with sequences 2, 3, 6 and 7. That aggregate sentence necessarily falls when the convictions on sequences 4 and 9 are quashed.

22. [100]

    An issue arose at the hearing as to whether the Court could and should also overturn the sentences for sequences 8 and 10 and send those back for resentencing. In supplementary submissions the Crown indicated that in the particular circumstances of this case it did not seek that that occur. That submission is accepted. It is thus not necessary to determine whether the Court could have done so in the absence of an appeal with respect to those charges.

23. [101]

    The applicant is in custody. The orders of the Court will leave him in custody pursuant to his having been previously denied bail. Any new application for bail should be made to the District Court.

24. [102]

    Large questions arise about the conduct of Mr Maspero. It is sufficient to note that the parties may take their own course in seeking to raise that with any relevant authorities.

Orders

1. [103]

   The orders of the Court should be as follows:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Quash the applicant’s convictions in respect of sequences 4 and 9.

   3. (3)

      List those sequences for arraignment in the District Court on 1 September 2022.

   4. (4)

      Quash the aggregate sentence imposed on the applicant in the District Court on 5 February 2021.

   5. (5)

      Remit the proceedings to the District Court for the applicant to be re-sentenced in due course on sequences 2, 3, 6 and 7.

2. [104]

   BUTTON J: I agree with Kirk JA.

3. [105]

   DHANJI J: I agree with Kirk JA.