Turner v Wheeler

1. [1]

   The plaintiff, Ms Turner, seeks leave to appeal under s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”) from an interlocutory order made on 2nd April 2015 in the Local Court Queanbeyan. Dick LCM refused her leave to withdraw pleas of guilty entered to 26 of 84 counts of larceny by a servant contrary to s 156 Crimes Act 1900 (NSW). She had earlier pleaded not guilty to 23 of the 84 (see [6] below).

2. [2]

   Contrary to Part 51B Rule 5(3) Supreme Court Rules 1970 (NSW), the summons seeking leave to appeal was not filed until 11th June 2015. As the defendant does not object, I will make an order under Rule 5(5) extending the time for filing the summons to 11th June 2016.

Factual background

1. [3]

   The defendant, Detective Wheeler, is the officer in charge of the investigation and the informant named in the 84 Court Attendance Notices bringing the matters before the Local Court.

2. [4]

   The prosecution case is that the plaintiff was employed by a transport company from 10 October 2008 until her resignation in 2013. Her last day of employment was 15th March 2013. An audit subsequent to her resignation identified 84 instances of deposits of company funds into various bank accounts controlled by the plaintiff between 23rd January 2012 and 15 March 2013. The total amount allegedly involved is $243,966.81.

3. [5]

   The matters were first before the Local Court on 2nd December 2013, when the plaintiff was represented by an experienced solicitor acting as duty solicitor. All matters were adjourned to 20th January 2014 for the provision of further particulars. On that day the plaintiff was self-represented. She sought a further adjournment because her Legal Aid application had not been finalised.

4. [6]

   On the further adjourned date, 10th February 2014, the plaintiff was again self represented and entered pleas of guilty to 61 of the charges, and not guilty to 23 of them, being sequences 2, 4, 5, 6, 7, 10, 13, 14, 15, 19, 20, 22, 23, 30, 32, 35, 40, 41, 42, 52, 54, 62 and 83. At the time of the entry of the pleas the following exchange took place between the learned Magistrate (Bone LCM) and the plaintiff (Court Book 50):

5. [7]

   The matter was listed on a number of further occasions during 2014 (the learned Magistrate noted that there had been 16 listings of the matter between December 2013 and April 2015: CB 39), including twice later in 2014 for a defended hearing. The plaintiff failed to appear on hearing through illness, or misadventure. Convictions were entered in her absence and warrants issued for her arrest. Upon the provision of the explanation for her non-attendance, the convictions were annulled.

6. [8]

   In her affidavit sworn on 22nd December 2014, read before the learned Magistrate on the application to withdraw the pleas, the plaintiff explained that she now wished to plead not guilty to a total of 47 of the charges. She swore that she had understood the advice of the duty solicitor given in December 2013 to be that:

7. [9]

   About the advice of her current solicitor she said:

8. [10]

   She also set out a summary of the evidence she intends to give in her own defence. She said that she wished to maintain her plea of guilty to 37 charges involving $134,475.60, but plead not guilty to a total of 49 charges totalling $108,491.21.

9. [11]

   She was cross-examined on her affidavit at the hearing on 2nd April 2015. One must bear in mind that the atmosphere created by, or feel of, the cross-examination cannot be recreated in an appellate court. However, it was not expressly put to the plaintiff that the evidence in her affidavit was untrue. It was established that the pleas of guilty had been entered after she had legal advice from the duty solicitor and had taken the opportunity to check documents she had at home. The following exchanges occurred:

Arguments below

1. [12]

   On behalf of the plaintiff it was argued before the Magistrate that the pleas of guilty did not “reveal a consciousness of guilty” as the plaintiff did not understand the incidence, burden and standard of proof. Her misunderstanding that she had to prove her innocence was a fundamental misunderstanding of the criminal justice system. Being held to the pleas of guilty in the circumstances would result in a miscarriage of justice.

2. [13]

   Despite not having challenged the truthfulness of her account directly in cross-examination the police prosecutor argued that the plaintiff’s evidence “can’t be true” (CB 38). He also pointed to what most lawyers would regard as the unfortunate history of the proceedings, “16 adjournments in this case either for mention, for hearing or for other matters” and to the “late stage” which the application was made (CB 39). He argued that the purpose of the application was to “[delay] the inevitable” (CB 39). Again, it had not been put to the plaintiff that what she said was a device. The prosecutor reminded the Magistrate that pleas of guilty may be validly entered by persons who believe they are innocent for a variety of reasons that the accused perceives to be in his or her own interest.

3. [14]

   Although it is not put forward as a ground of appeal, I think it important to say that the requirements of ethical advocacy do not permit a witness’ credibility to be called into question, as occurred here, unless the witness has been given a fair opportunity to answer the accusation whilst giving evidence. Indeed, such a matter goes beyond the ethical obligation of advocates to the fairness of the trial process itself: Browne v Dunn (1893) 6 R 67. However, as I read the learned Magistrate’s reasons, he did not decide the case adversely to the plaintiff because he accepted these particular prosecution submissions that her explanation was not true or that the proposed change of plea was a delaying tactic.

The Magistrate’s reasons

1. [15]

   In a succinct ex tempore judgment, the learned Magistrate refused the application “to traverse the pleas”. His Honour recognised that leave was required, and that the onus lay upon the plaintiff (on the balance of probabilities) of establishing “good and sufficient reason for allowing the application” (CB 40). His Honour also directed himself that he “should approach the application with caution”.

2. [16]

   His Honour referred to a “ready reckoner as such” in relation to considerations that “I have to employ today” (CB 40) and listed relevant cases. His Honour directed himself that he was to “have regard to the matters outlined in those cases”. Amongst the considerations to which he had to “have regard [was] whether the plea of guilty was entered free and voluntary” (sic). At the outset decided his Honour “that it was” (CB 40). His Honour went on to consider the other factors which he considered arose out of the cases to which he referred. His Honour was “not satisfied that the plea was not – attributable to consciousness of guilt” (CB 41). His Honour concluded:

3. [17]

   Before leaving the reasons for the Magistrate’s order, it is important to record that, with respect, that his Honour misapprehended the plaintiff’s evidence (and therefore argument) in a material way. He said (CB 40.35):

Grounds of appeal

1. [18]

   As I have said, it is common ground that the order of the learned Magistrate refusing leave to withdraw the pleas and dismissing the application is an interlocutory order under s 53(3)(b) of the Act. Accordingly an appeal lies only on the ground that involves a question of law alone, and only by leave.

2. [19]

   The grounds of appeal propounded by the plaintiff are as follows:

   1. (1)

      The plaintiff contends that his Honour erred by applying the wrong test of law when determining the plaintiff’s application to traverse a plea of guilty in the Court below

   2. (2)

      The plaintiff contends that his Honour posed a series of rhetorical questions that did not reflect the appropriate test and summary of principles as enunciated by Howie J in Ming Yuk (Raymond) Wong v The Director of Public Prosecutions 2005 NSWSC 129.

The argument of the parties

1. [20]

   Although Ground 1 is couched in the language of “applying the wrong test at law”, it is clear that both grounds of appeal taken together essentially involve a misdirection point. That is to say, that the learned Magistrate “has defined other than in accordance with the law the question of fact which he [had] to answer” to decide the application: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; 9 ALN N245 at 156 by Glass JA.

2. [21]

   The plaintiff’s argument was essentially that the learned Magistrate misdirected himself because he failed to address the question whether the plaintiff’s plea was vitiated because she misunderstood the incidence, burden and standard of proof. That is to say, the ground she advanced was that from the advice she had received (it is not necessary for the purpose of the argument to say that it was wrong) the plaintiff formed the misunderstanding that she would carry the onus of establishing her innocence by providing concrete evidence that she was entitled to the funds transferred to her account rather than appreciating that she was presumed to be innocent unless and until the prosecution proved her guilt beyond reasonable doubt; and that that burden and standard of proof at all times remained upon the prosecution.

3. [22]

   The application of his Honour’s ready reckoner led his Honour to consider, as it were, fixed categories of circumstances sufficient to enliven the discretion to give leave for the pleas to be withdrawn. Moreover, his Honour’s misapprehension, and misstatement, of the evidence of the plaintiff demonstrated that he had not defined the question of fact on which this case turned according to law.

4. [23]

   The defendant argued that errors in applying a legal test are generally errors of fact or involving mixed questions of fact and law: R v P L [2009] NSWCCA 256; 199 A CrimR 199 at [26]; Azzopardi at 156C and 157B. Moreover, the defendant also argued that his Honour identified the right question by asking whether the plea was freely and voluntarily entered; that his reference to the consideration which had been discussed in previous decided cases was apposite; and there was nothing in his ex tempore reasons to suggest that he had misdirected himself in any way about the applicable principles.

Applicable principles

1. [24]

   The governing principles are discussed in Meissner v The Queen [1995] HCA 41; 184 CLR 132. At page 141 Brennan, Toohey and McHugh JJ said:

2. [25]

   In Maxwell v The Queen [1996] HCA 46; 184 CLR 501, after stating in substance the principles I have set out above, Dawson and McHugh JJ said (at 511):

3. [26]

   It is clear from these statements of principle that the categories of cases in which a court will grant leave for the withdrawal of a plea of guilty are various, not fixed, and not closed.

4. [27]

   In Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; 155 A Crim R 35 at 42 [18] – [19] Howie J said:

Decision

1. [28]

   I am satisfied that in refusing leave for the plaintiff to withdraw her plea of guilty to counts 1, 3, 8, 9, 11, 12, 16, 17, 18, 21, 24, 27, 28, 29, 33, 34, 36, 37, 53, 56, 57, 69, 72, 78 and 84, the learned Magistrate fell into an error of law by defining otherwise than in accordance with the law, the question of fact which he was called upon to answer. In the circumstances of this case, that question was whether the plaintiff’s misunderstanding of the incidence, burden and standard of proof vitiated the guilty plea as one “entered in the exercise of a free choice in the interests” of the plaintiff.

2. [29]

   I acknowledge that the learned Magistrate (at 40 CB.20) referred to the question “whether the plea of guilty was entered free and voluntary” (sic) and in stating his conclusion found that the plea of guilty had been entered “of her own free will and informed decision”, but those statements pitched the question at too great a level of abstraction which failed to engage with the issue which had been presented for his determination.

3. [30]

   The learned Magistrate’s misstatement, and misapprehension of the plaintiff’s evidence as to why she wished to change her plea is also important. Certainly this mistake may be characterised as an error of fact and therefore beyond this court’s power. On the other hand, it is a clear indication, with respect, that his Honour failed to discharge his duty to quell the actual controversy which had been presented for determination. I accept this misapprehension demonstrates he failed to define the actual question of fact that arose for determination in the case in accordance with the principles of law I have set out above (at [25]-[28] above).

4. [31]

   The questions his Honour had to answer were first, did he accept the plaintiff’s evidence? This is, of course, is a pure question of fact. His Honour was not bound to accept it: McPhee v S Bennett Limited (1934) 52 WN (NSW) 8 at 9. But acting judicially one would require good reason for rejecting evidence that was not challenged in cross-examination. The second question was if the plaintiff’s evidence was accepted, did it prove that the pleas of guilty were entered in circumstances suggesting that they were not true admissions of guilt because in entering the pleas the plaintiff was actuated by ignorance, or a misunderstanding, of the law. This second question was the ultimate question of fact that the learned Magistrate had to decide. Azzopardi demonstrates that the failure to formulate it in accordance with the law is an error of law, notwithstanding that the answer ultimately given is one of fact. That is to say, whilst the ultimate question is one of fact, the failure to formulate the question in accordance with the law is itself an error of law.

5. [32]

   It may be that his Honour’s reliance on his “ready reckoner” led him into error because he failed to consider the breadth of the principle applicable. A handy summary of the factors which have been considered sufficient to justify the withdrawal of a plea, and those which have not, is a very useful tool in a busy court. But such aids are not a template which will fit all cases. As I have said, the categories of case in which leave will be granted to withdraw a plea of guilty are neither fixed nor closed. It is necessary in every case to engage with the actual issue presented for determination.

What order should be made

1. [33]

   An issue arose about whether I have power to substitute my own decision for that of the Magistrate if leave were granted and the Appeal allowed. This arises from the terms of s 55 of the Act governing the disposition of appeals. Interlocutory appeals are dealt with in s 55(3) which is in the following terms:

2. [34]

   The question is, does the power to make “such other order as [the Court] thinks just” extend to making the order which I find should have been made at first instance, notwithstanding that the appeal permitted by s 53 in the present case is limited to a ground that involves a question of law alone?

3. [35]

   After the conclusion of the oral hearing counsel provided written submissions on this question. The plaintiff submitting that I had power to substitute my own decision for that of the Magistrate, and the defendant submitting to the contrary.

4. [36]

   Essentially the plaintiff relied upon the width of the statutory language and the decision of Beech-Jones J in Bimson, Roads & Maritime Services v Damorange [2014] NSWSC 734. His Honour was there concerned with the Court’s powers conferred by s 59 of the Act for determining prosecution appeals brought under s 56. Section 59(2) is materially identical to s 55(3). Whilst noting that s 75(A) Supreme Court Act 1970 (NSW) did not apply to appeals brought under the Act (see 75A(3)(a)), his Honour applied the reasoning in Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [83] to [87]. He held that the court could exercise the discretion of the court below anew “when no findings of fact were required” Bimson at [34].

5. [37]

   As I have pointed out, the learned Magistrate misstated the plaintiff’s evidence. This consideration would necessarily require me to correct the error by making findings of fact in accordance with the evidence before exercising any “discretion” anew. The reasoning in Bimson does not permit me to go this far. I interpolate that the power being exercised by the Magistrate is arguably not a discretion. Rather it called for the application of normative standards fixed by law to facts as found by the learned magistrate.

6. [38]

   RH v Director of Public Prosecutions [2014] NSWCA 305 at [43] Basten JA (Beazley P agreeing) said that on appeals limited to questions of law the appellate court was not empowered to substitute its own conclusion of fact unless that was the only conclusion legally available.

7. [39]

   The plaintiff also relied upon R v Favero [1999] NSWCCA 320 at [22]. However, that was a decision of the Court of Criminal Appeal in an appeal brought under s 5F Criminal Appeal Act 1912 (NSW). Once leave was granted, the appeal was not limited to a ground involving a point of law alone and the court had ample express powers to make the order it considered ought to be made in the circumstances of the case (s 5F (5)).

8. [40]

   It might be said that if the evidence of the plaintiff is accepted, supported as it appears to be by what she said to Bone LCM on 10th February 2014 (the transcript formed part of Exhibit 2), only one conclusion is open. However, as that conclusion would require me to find facts not found by the learned Magistrate, it is not open to me to give effect to that view. Accordingly, the matter must be remitted. Although s 55(3) contains no express power of remitter, such an order is covered by the power to make such other order as the court thinks just.

9. [41]

   For these reasons my orders are:

   1. (1)

      Extend the time for filing the summons to 11th June 2015;

   2. (2)

      Grant leave to appeal;

   3. (3)

      Appeal allowed;

   4. (4)

      Set aside the order pronounced in the Local Court at Queanbeyan on 2nd April 2015 refusing the plaintiff’s application to withdraw her plea of guilty to charge reference H53660265, sequences 1, 3, 8, 9, 11, 12, 16, 17, 18, 21, 24, 27, 26, 29, 33, 34, 36, 37, 53, 56, 57, 69, 72, 78 and 84;

   5. (5)

      Remit the application for further determination in the Local Court on the evidence taken on 2nd April 2015 and in accordance with these reasons.

   6. (6)

      The defendant to pay the plaintiff’s costs of the appeal on the ordinary basis forthwith after they have been agreed or assessed.