Mao v DPP (NSW)

1. [1]

   HER HONOUR: This is an appeal from an interlocutory decision of the Local Court to refuse to grant leave to withdraw a plea of guilty pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

2. [2]

   By summons filed 16 December 2015, the plaintiff seeks, firstly, an order that leave be granted to appeal from the whole of the decision below; secondly, an order in the nature of certiorari setting aside the decision of Magistrate Barko dated 23 November 2015 in refusing the application made by the plaintiff; thirdly, an order that the Local Court be directed to deal with the plaintiff’s application according to law; and fourthly, an order that leave be granted to the parties to approach the Court to complete any orders that are necessary to have the matter determined.

3. [3]

   The plaintiff is Wenju Mao, who was the defendant in the Local Court proceedings. The defendant is the Director of Public Prosecutions (NSW) (“DPP”). The matter was prosecuted by the NSW Police in the Local Court. On 30 March 2016, the DPP took over as defendant in the appeal pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). The plaintiff relied upon the affidavit of his solicitor, Ren Zhou dated 2 May 2016. On 7 June 2016, a joint tender bundle was filed.

4. [4]

   On 23 November 2015, his Honour Magistrate Barko (“the Magistrate”) dismissed the plaintiff’s application for leave to withdraw his plea of guilty.

Ground of appeal

1. [5]

   The plaintiff appeals the whole of the decision of the Magistrate on the ground that the Magistrate made an error of law in that he did not grant leave to withdraw pleas of guilty in respect of charge sequence numbers 2 to 7, 9, 12, 13, 14, 16, 18 and 19 (“the 13 charges”) when there was no evidence available to convict the plaintiff.

2. [6]

   Under s 55(3) of the Crimes (Appeal and Review) Act, an appeal under s 53(3)(b) may be determined by setting aside the order and making such order as this Court sees fit, or by dismissing the appeal.

3. [7]

   Insofar as appeals under s 53(3)(b) of the Crimes (Appeal and Review) Act against refusals to grant leave to change a plea are concerned, in Grant v Local Court of New South Wales [2015] NSWSC 356 (“Grant”), Johnson J stated (at [37]):

Background

1. [8]

   These facts are not in dispute. On 18 March 2015, the plaintiff was arrested by Police at his residential premises and was transported to Redfern Police Station where he was taken into custody. He declined to be interviewed and was ultimately released on conditional bail.

2. [9]

   The Police alleged that the plaintiff was connected to a criminal syndicate that conducted identity fraud.

3. [10]

   On or about 19 March 2015, the proceedings were commenced by the Police filing and serving a total of 19 Court Attendance Notices naming the plaintiff as the offender. The charges set out in sequences numbered 1 and 8 allege contraventions of s 192K of the Crimes Act 1900 (NSW), sequences numbered 14, 18 and 19 allege contraventions of s 192E(1)(a) of the Crimes Act and the remaining 14 sequences allege contraventions of s 192E(1)(b) of the Crimes Act. I will set out the details of the charges later in this judgment.

4. [11]

   On 20 April 2015, these proceedings came before the Downing Centre Local Court. The plaintiff appeared in person and was represented by Mr Phillip Green, solicitor. Pleas of “not guilty” were entered to all of the 19 charges and the proceedings were adjourned to enable the Police to serve upon the plaintiff a copy of their brief of evidence.

5. [12]

   On 1 June 2015, the proceedings were next before the Local Court. On that occasion, Mr John Nathan, solicitor, appeared as agent for Mr Green on behalf of the plaintiff. By this time only a partial brief of evidence had been served upon the plaintiff. The Magistrate fixed the matter for hearing on 27 July 2015. The Magistrate ordered that the balance of the brief of evidence be served not less than 14 days prior to the hearing. The Court also ordered a Mandarin interpreter to assist the plaintiff at the hearing.

6. [13]

   At some point after 1 June 2015, Mr Nathan was retained by the plaintiff as his legal representative.

7. [14]

   On 27 July 2015, the proceedings came on for hearing before Magistrate Barko. Mr Nathan appeared for the plaintiff who was assisted on the day by a Mandarin interpreter. Sgt Stromquist appeared as Police prosecutor. When the matter was first mentioned Mr Nathan indicated that he wished to make an application that all of the charges be dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The Magistrate refused the application.

8. [15]

   After the Magistrate refused the plaintiff’s s 32 application, Mr Nathan entered pleas of “guilty” to all 19 charges and made some preliminary submissions on penalty. The Magistrate recorded the pleas of guilty to all charges and adjourned the proceedings part heard for sentence on 17 September 2015.

9. [16]

   On 17 September 2015, Sgt Alzaim appeared as Police prosecutor. The Court had received from Community Corrections a pre-sentence report of Ms Vivien Weir, Senior Community Corrections Officer, dated 16 September 2015. The Court also received a letter dated 17 September 2015 from the plaintiff stating that he was unfit to attend Court on the day, enclosing a medical certificate to that effect. He also stated that he had “disengaged” Mr Nathan. As a matter of courtesy Mr Nathan appeared and sought an adjournment of the plaintiff’s sentencing and he was granted leave to withdraw. The Magistrate adjourned the proceedings for sentence, part heard, to 29 September 2015.

10. [17]

    On 29 September 2015, Sgt Coombs appeared as Police prosecutor. Mr Parsons of counsel appeared for the plaintiff. When the matter was mentioned Mr Parsons indicated that the plaintiff sought the Court’s leave to change the plaintiff’s pleas of guilty to not guilty in respect of the 13 charges (“the application”). The plaintiff relied on his affidavit sworn 24 September 2015. The application was adjourned to 23 November 2015 and the Magistrate ordered that any further evidence or written submissions were to be filed and served by 20 November 2015. He also ordered that the plaintiff and any of his witnesses in support of the application be available for cross examination.

11. [18]

    On 23 November 2015, Sgt Gorman appeared as Police prosecutor and Mr Parsons again appeared for the plaintiff. The plaintiff relied on his affidavit sworn 24 September 2015. The Police prosecutor relied on the statement of police facts. The Magistrate heard oral evidence from the plaintiff, the former Mandarin interpreter, Mr Au, and the plaintiff’s former solicitor, Mr Nathan. Mr Parsons also provided the Magistrate with written submissions.

The charges

1. [19]

   It is convenient that I now set out the charges against the plaintiff. According to the Police facts sheet, the plaintiff was allegedly involved in a criminal syndicate that obtained the details of members of the community and fraudulently altered their details to procure credit cards from financial institutions. The facts sheet alleges that the plaintiff applied for, activated and used two credit cards using false identity documents. The plaintiff was linked to the online applications via his name and internet ‘Cookies’ address.

2. [20]

   Offence 1 alleges that on 24 September 2014, the plaintiff applied for a credit card (“CC1”). On 17 October 2014, the plaintiff attended a Westpac Bank branch to collect and activate CC1 using fraudulently altered identification documents. Offence 8 alleges that on 13 October 2014, the plaintiff applied for a credit card (“CC2”). On 24 October 2014, he attended a different Westpac Bank branch to collect and activate CC2 using identity documents that did not belong to him. Both of these occasions were captured on CCTV. Offences 2 to 7 allege that between 17 October 2014 and 22 October 2014 the plaintiff made a number of transactions using CC1 at various ATMs, withdrawing in total a sum of $11,050. Offences 9 to 19 allege that between 24 October 2014 and 31 October 2014, the plaintiff used CC2 to withdraw cash from various ATMs and to purchase luxury goods from retail stores. The total value of cash and goods acquired using CC2 was the sum of $12,769. The Magistrate noted (at J [15]) that the only photographic evidence implicating the defendant related to the charges to which he maintained pleas of guilty, ie, Charges 1, 8, 10, 11, 15 and 17. There is no photographic evidence identifying the plaintiff as the person using the cards in respect of the 13 charges that are the subject of this appeal.

The law

1. [21]

   The relevant law in relation to entering and withdrawing guilty pleas is contained in ss 193 and 207 of the Criminal Procedure Act 1986 (NSW). Section 193 provides:

2. [22]

   Section 207 provides:

The Magistrate’s decision

1. [23]

   After setting out the procedural history and the details of the application, the Magistrate set out the relevant legislation. There is no dispute that the plaintiff was entitled to bring the application as the Magistrate had accepted the plaintiff’s pleas of guilty for the 19 charges before him on 27 July 2015.

2. [24]

   At paragraphs [22] to [28] of the Magistrate’s reasons, his Honour set out the relevant case law in relation to changing pleas from guilty to not guilty. I will set out the relevant case law later in this judgment, but for present purposes it is important to note that the Magistrate referred to the following passage from R v Boag (1994) 73 A Crim R 35 (“Boag”) per Hunt CJ at CL (with McInerney and James JJ agreeing) (at 36):

3. [25]

   The parties in this appeal agree that Boag is authority for the proposition that the plaintiff’s task in his application to the Magistrate to change his pleas from guilty to not guilty was to demonstrate that a miscarriage of justice had occurred.

4. [26]

   The plaintiff, his interpreter, Mr Au, and his solicitor, Mr Nathan, each gave evidence and were cross examined at the hearing.

5. [27]

   The Magistrate set out the evidence upon which the plaintiff relied in support of his application. It is as follows. The plaintiff admits he committed the offences in Charges 1 and 8. With respect to Charges 2 to 7, the plaintiff says he has “no recollection” of obtaining any funds from an ATM in the manner alleged in the statement of facts (Aff, [7]) and that after he obtained CC1, he “handed it to another male outside the bank. That male person was one of the persons in charge of the criminal operation.” (Aff, [8].) He states that he has “no recollection” of obtaining the cash from the ATMs and carrying out the transactions at the retail stores as alleged in charges, 9, 12, 13, 14, 16, 18 and 19. The plaintiff stated he was only shown five photographs by the police concerning five of the alleged 19 offences when he was arrested and that he had difficulty reading the facts sheet (J [31]; Aff, [16]-[17]).

6. [28]

   The plaintiff’s evidence is that on 20 April 2015, at his first court appearance, he instructed Mr Green, solicitor, to mention the matters. No brief of evidence had been served and he did not discuss the issue of how he would plead with Mr Green. On 1 June 2015, the plaintiff met Mr Nathan, whom he subsequently retained as his legal representative. The plaintiff said that he recalled that he had a telephone conversation that morning with Mr Nathan, in which Mr Nathan referred to the fact that the plaintiff had admitted to doing “some of the things” and referred the plaintiff to Dr Diment, psychologist, for an application under the mental health law. On 27 July 2015, the plaintiff recalled being in court when this application was refused and that he told Mr Nathan he wished to plead guilty “but not to all, it’s not all”. He says that he intended to instruct Mr Nathan that he had not committed all of the offences and was only guilty of some. He says he did not have the assistance of the interpreter at this time (J [32]-[34]; Aff, [18]-[31]).

7. [29]

   The defendant subsequently instructed Mr Parsons of counsel and, through a different interpreter, prepared and swore his affidavit (J [35]; Aff, [34]-[36]).

8. [30]

   In his oral evidence, the plaintiff maintained that he instructed his solicitor that he was not guilty of all of the offences. When asked by the Magistrate about the use of the phrase “no recollection” in his affidavit, the Magistrate observed that the plaintiff “appeared somewhat confused with my questioning but ultimately stated that he did not attend the three stores the subject of the charges set out in sequences numbered 14, 18 and 19.” (J [36].) The Magistrate made a finding that the plaintiff was not credible when using the phrase “no recollection”. The Magistrate also said that the plaintiff’s credibility was affected by his failure to say anything about giving the second credit card to someone who could have committed the offences in relation to that card as well as his failure to explain how he came to commit the offences he has maintained pleas of guilty to and how the other offences may have been committed by someone else (J [40]).

9. [31]

   Mr Au, the interpreter, assisted the plaintiff during his initial conversations with Mr Green and Mr Nathan, solicitors. In his oral evidence he recalled that the plaintiff said he was involved in some of the charges but not all, although he did not overhear any discussion between the plaintiff and the solicitors concerning pleas of guilty or not guilty. The Magistrate considered the interpreter’s evidence in this respect to be “somewhat vague” (J [42]).

10. [32]

    So far as Mr Nathan’s oral evidence is concerned, the Magistrate observed the following:

11. [33]

    With respect to Mr Nathan’s credibility, the Magistrate recorded:

12. [34]

    The Magistrate made a finding that the plaintiff had in fact instructed Mr Nathan to enter pleas of guilty to all of the 19 charges (J [44]). His Honour then set out the matters in favour of and the matters unfavourable to granting leave to the plaintiff to change his pleas from guilty to not guilty (J [45] & [46]). Relevantly, the Magistrate considered the following matters which “tend not to favour such leave being granted”:

13. [35]

    The Magistrate concluded as follows:

14. [36]

    The main issue raised in this appeal is whether the Magistrate misunderstood the law in relation to the withdrawal of a guilty plea. It is convenient that I now refer to the relevant law.

Relevant case law

1. [37]

   The Magistrate referred to extracts from the following cases: Boag at 36; R v Liberti (1991) 55 A Crim R 120 at 122 (“Liberti”); Meissner v R [1995] HCA 41; 184 CLR 132 at 157 (“Meissner”); R v Hura [2001] NSWCCA 61; 121 A Crim R 472 at [32] (“Hura”) and Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37 at [15], [16], [19] and [40] (“Wong”).

2. [38]

   In the parties’ submissions they referred to a number of cases, some concerning applications to withdraw a plea after it is entered but before conviction and some on appeal after both conviction and sentence. In the present case, the plaintiff’s pleas of guilty had been entered but he had not yet been sentenced. In R v Parkes [2004] NSWCCA 377, Hodgson JA noted (at [49]) that “while more caution might be required where leave to withdraw a plea is sought after conviction and sentence, the principles that apply where the application is made before conviction and sentence are to similar effect”.

3. [39]

   In R v Van [2002] NSWCCA 148; 129 A Crim R 229, James J (Hodgson JA and Kirby J agreeing) set out the relevant principles in relation to an appeal where an accused seeks to withdraw a plea. At [48] to [50] James J stated:

4. [40]

   In Wong, after setting out [32] to [33] from Hura, Howie J stated:

5. [41]

   The defendant also referred to Grant in which Johnson J at [36] similarly set out a summary of “well settled” principles governing an application to withdraw a plea of guilty.

6. [42]

   In Wong, Howie J, on the question of whether an accused must in truth be guilty of the offence to which he or she has pleaded, stated:

7. [43]

   In R v Sagiv (1986) 22 A Crim R 73, Lee J (McInerney and Campbell JJ agreeing), after citing a number of cases involving withdrawals of a plea of guilty, made the following observations at 80-81:

8. [44]

   In Rotner v R [2011] NSWCCA 207 (“Rotner”) Simpson J (McClellan CJ at CL and Fullerton J agreeing) said at [49]:

9. [45]

   In R v Sewell [2001] NSWCCA 299, Smart AJ (Heydon JA and Simpson J agreeing) at [39] stated:

10. [46]

    In Ishac v R [2011] NSWCCA 117, McColl JA (RS Hulme and Hislop JJ agreeing) stated at [30]:

11. [47]

    The defendant submitted that the formulation of what must be shown in order for leave to be granted was stated in R v Kouroumalos [2000] NSWCCA 453 where Wood CJ at CL (Studdert and Whealy JJ agreeing) at [19] said:

12. [48]

    This approach was endorsed by the Court of Criminal Appeal in Rotner by Simpson J at [47].

13. [49]

    In R v Khan [2002] NSWCCA 521, Giles JA (Sully and Dowd JJ agreeing) at [28] stated:

14. [50]

    For completeness, the Magistrate also referred to the following passage from Wong at [40]:

15. [51]

    Finally, in Sagiv, Lee J observed at 82:

Submissions

1. [52]

   Counsel for the plaintiff submitted that the circumstances warranting the exercise of the discretion in favour of permitting a change of plea (constituting a miscarriage of justice) include an absence of evidence sufficient to convict the plaintiff and the Magistrate did not consider whether there was an absence of evidence sufficient to convict the plaintiff. The plaintiff referred to the following passage in Boag where Hunt CJ at CL (with McInerney and James JJ agreeing) stated at 37:

2. [53]

   The plaintiff submitted that the Magistrate failed to appreciate the relevance of this passage for the purpose of determining the question of whether to grant leave to the plaintiff to change his pleas and in so doing fell into error. According to counsel for the plaintiff, this was a case where there was “no evidence upon which [the plaintiff] could have been convicted” and that this was established by the evidence and the Magistrate’s observations at the hearing. The plaintiff pointed to the lack of photographic evidence of the 13 charges, which was confirmed at the hearing (T22.38-45, 23/11/2015), the plaintiff’s affidavit evidence in which he stated that he had “no recollection” of carrying out the relevant transactions and the fact that, although the Magistrate referred to Boag, his Honour did not refer to the passage “such a miscarriage will be established… if there was no evidence upon which he could have been convicted”. Counsel for the plaintiff submitted that by not taking this passage into account, his Honour erred in his understanding and application of the relevant law.

3. [54]

   Counsel for the plaintiff referred to the following excerpts from the transcript in the Local Court:

4. [55]

   Counsel for the plaintiff submitted that this exchange demonstrates that the Magistrate recognised there was an absence of evidence upon which the plaintiff could be convicted.

5. [56]

   Counsel for the defendant submitted that the Magistrate applied well established principles to the facts of the present case on the evidence before him and that the plaintiff has not made out any error of law. While the Magistrate did not specifically refer to the passage in Boag (at 37), counsel for the defendant says that that passage was referred to in the plaintiff’s written submissions handed to the Magistrate (Ex A in this Court). Counsel for the defendant also submitted that the plaintiff made oral submissions to the Magistrate to the effect that references to the plaintiff’s use of the relevant cards in the police facts sheet were based on inferences and that there was no evidence to support such inferences and that the Magistrate’s enquiries to the prosecutor to contact the informant demonstrated his understanding of the plaintiff’s submission.

6. [57]

   According to counsel for the defendant, the Magistrate’s reasons for decision show his understanding that the critical issue was the integrity of the plaintiff’s plea. The defendant accepted that the integrity of a plea may be challenged, as in R v Davies (1993) 19 MVR 481, where it is entered by a person with “no recollection” of committing the offences, who is not in possession of all the facts and who did not entertain a genuine consciousness of guilt. However, counsel for the defendant submitted that this case is distinguishable from Davies, insofar as the Magistrate made findings that the plaintiff was in possession of the entire brief at the time the pleas were entered and he understood the nature of the charges against him (J [46], [47]). The Magistrate found the plaintiff not to be credible when using the phrase “no recollection” and his Honour accepted Mr Nathan’s evidence that his instructions at all times had been to plead guilty to all charges. The defendant also submitted that the Magistrate had regard to the plaintiff’s interview for the purpose of a pre-sentence report in which he was recorded as stating that he did not dispute the police facts. As well, the psychologist who interviewed him for the purposes of his s 32 application recorded that the plaintiff said he felt sorry about what he had done, that he felt regret and that he would pay back the money he had gained (J [46(j)-(k)]).

7. [58]

   Counsel for the defendant submitted that the Magistrate found that the plaintiff’s pleas were a true admission of guilt and that the plaintiff had instructed his former solicitor to enter them by reason of his consciousness of guilt (J [47]). While the Magistrate did not make a specific finding that there was no evidence in relation to any of the offences charged in respect of which the plaintiff sought to withdraw his pleas of guilty to the 13 charges, he did not err in law in failing to make such a finding, in light of the other findings he made as to the integrity of the pleas. Counsel for the defendant drew this Court’s attention to the fact that the plaintiff did not put the police brief with which he had been served into evidence to enable the Magistrate to assess its contents.

8. [59]

   Finally, counsel for the defendant submitted that the Magistrate applied appropriate principles of law in refusing to grant leave to withdraw the plaintiff’s pleas by firstly, making factual findings on the evidence before him and being satisfied on those facts that the pleas were entered with a genuine consciousness of guilt; and secondly, the plaintiff had an understanding of the nature of the charges; and finally, he concluded that there would be no miscarriage were the plaintiff not permitted to withdraw his pleas.

Consideration

1. [60]

   The majority of cases referred to by the Magistrate and this Court in this judgment on the topic of whether a plea of guilty can be withdrawn emphasise the importance of an assessment of the integrity of the plaintiff’s plea by reference to the circumstances in which it was entered. His Honour had the benefit of submissions from the plaintiff that identified the passage in Boag (at 37) which states that a miscarriage of justice will occur when an accused has entered pleas of guilty in circumstances where there is no evidence upon which the accused could have been convicted. This is the only Court of Criminal Appeal decision drawn to this Court’s attention that states that a miscarriage of justice will occur on this basis. The Magistrate made no such finding in relation to the plaintiff because, as he observed, the plaintiff had made admissions consistent with guilt to both Dr Diment, psychiatrist, for the purposes of his s 32 application, and Ms Weir, Senior Community Corrections Officer, for the purposes of a pre-sentence report, both of which he took into account at [46(j) & (k)] of his reasons. In other words, his Honour was satisfied that there was evidence available in respect of the 13 charges upon which the plaintiff could have been convicted. In these circumstances it would have been contradictory and wrong if his Honour expressed the view that there was no evidence available to convict the plaintiff. In my view, the Magistrate did not make an error of law. The result is that the appeal is dismissed. The decision of Magistrate Barko dated 23 November 2015 is affirmed.

Costs

1. [61]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.