LAWSON v REGINA

HALL J: The applicant seeks leave by notice dated 8 July 2010 to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912 against the conviction and sentence imposed by the Sydney District Court (Bennett DCJ) on 19 June 2009.

The applicant initially appeared before the District Court for trial on 22 April 2008 and, upon arraignment, he pleaded not guilty to eight counts.

The selection of the jury was deferred until the Court heard argument in relation to an application for the rejection of evidence, namely, a recording and transcript of a conversation covertly captured on 6 December 2006 pursuant to a warrant issued under the former Listening Device Act 1984 and the recordings and transcript of conversations between alleged co-offenders in which the applicant was not a participant. The proceedings were adjourned to the following day.

The trial judge duly conducted a voir dire examination on 22 April 2008 in the applicant's presence in respect of:- (1) A recording (and transcripts) of a conversation (Exhibit VD1). The recording was made covertly on 6 December 2008 at Parklea Correctional Centre. It recorded a conversation between the applicant, the co-offender, Ms Murphy (who was to be called in the Crown case to give evidence against the applicant) and an undercover operative, "Sean" . (2) The recordings of a number of (up to 16) intercepted telephone conversations (Exhibit VD3) being conversations between Ms Murphy and "Sean" and between Ms Murphy and the applicant.

The covert recording of the conversations at Parklea Correctional Centre were challenged on the basis that no relevant conversation was audible on the recording. The intercepted telephone conversations were challenged on the basis that they were inadmissible hearsay.

The Crown, in its written submissions, noted (paragraph 14) that the evidence on the voir dire also consisted of the following:- "14. Also tendered on the voir dire were - a. two ERISPs (Exhibit VD2) between investigating Police and the co-offender, Ms Murphy, who was be [sic] called in the Crown case against the Applicant; and, b. a statement of Gary Best (Exhibit VD4) was be [sic] called in the Crown case against the Applicant that - i. as at 2006, he and the Applicant had known each other for some twenty years, ii. the Applicant apparently believed that Mr Best had a history of violence and/or intimidation, iii. on 2 October 2006 Ms Murphy arranged at the request of the Applicant for Mr Best to visit the Applicant in custody because the Applicant wanted Mr Best to do something about the Crown witnesses (Minnett and Rumble) who were to be called to give evidence against him in relation to counts 1 to 5 inclusive on the first indictment, iv. on 28 October 2006 Mr Best went with Ms Murphy to the Parklea Correctional Centre Prison and there met with the Applicant who asked him to obtain exculpatory affidavits from Minnett and Rumble and if they declined to provides [sic] the same, then to 'get them out of the way', do 'what you do', do 'whatever it takes', v. Mr Best then informed the Police of these events."

The trial judge, having heard the recording of the conversation on 6 December 2006 at Parklea Correctional Centre, indicated to counsel that, in his view, portions of the recording were audible and that they included a significant inculpatory conversation by the applicant.

His Honour also expressed the preliminary view that the intercepted telephone conversations would be admissible as evidence supporting the existence of the conspiracy relied upon by the Crown. The voir dire was adjourned to the following day.

On 23 April 2008, counsel for the applicant informed the trial judge that the Crown would accept pleas of guilty to three counts, with two further counts to be included in a Form 1 to be dealt with pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. The remaining charges were to be abandoned.

Accordingly, Counts 3, 6 and 7 on the original indictment were presented as Counts 1, 2 and 3 in a fresh indictment and Counts 2 and 4 on the first indictment were included as additional matters to be taken into account on the Form 1. The Crown indicated that it would not proceed in respect of Counts 1, 5 and 8 on the original indictment.

On 24 April 2008, the applicant was re-arraigned upon the fresh indictment and he pleaded guilty to the following charges:- " First count: On 8 September 2005 at Cartwright in the State of New South Wales, while in the company of another person, did detain Ben Randall without his consent and with intent to obtain an advantage, namely, gain entry to unit 8/24 Woolnough Place. Section 86(2), Crimes Act 1900 Second count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, inflict grievous bodily harm upon Chris Minett with intent to do grievous bodily harm. Common Law Third count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, maliciously inflict grievous bodily harm upon Rhonda Rumble with intent to do grievous bodily harm. Common Law."

The Court took into account the two further matters concerning the applicant on a Form 1, being as follows:- "1. On 8 September 2006, he entered land with intent to commit a serious indictable offence, namely, intimidation (s.114(1)(d) of the Crimes Act 1900). 2. On 8 September 2006, he intimidated Ms Rumble with intent to cause her to fear physical or mental harm (s.545AB of the Crimes Act 1900)."

Following a lengthy delay, the applicant was sentenced on 19 June 2009 to serve a fixed term of imprisonment for 5 years and 3 months for the aggravated detain for advantage offence, dating from his arrest on 8 September 2006.

In respect of the two conspiracy offences, the applicant received partially accumulated sentences of 9 years with a non-parole period of 6 years. These sentences were stated to commence on 8 September 2008 and were to be served concurrently.

Accordingly, the total sentence imposed upon the applicant was a period of 11 years with a non-parole period of 8 years.

Following the applicant's plea of guilty to Counts 1, 2 and 3, the proceedings were adjourned to 25 July 2008 for sentence. A pre-sentence report was ordered. When the report was made available, it became apparent that the applicant had traversed his plea. The applicant told the author of the report that he was not guilty of the offences.

On 5 September 2008, a notice of motion seeking leave to withdraw the pleas of guilty was filed in the District Court. The application was heard by Bennett DCJ on 11 September 2008, 14 November 2008, 25 November 2008 and 27 January 2009.

Both Mr Price of counsel, who had been appearing for the applicant prior to that time, and his instructing solicitor withdrew from the proceedings. The matter was adjourned to allow the applicant time to obtain alternative legal representation.

In due course, Mr Mitchell Paish of counsel appeared on behalf of the applicant. An application was made to Bennett DCJ to reverse the pleas of guilty. The application was duly heard and determined.

On 8 May 2009, Bennett DCJ delivered judgment refusing leave to withdraw the pleas of guilty.

On 19 June 2009, as earlier noted, the applicant was sentenced.

In the notice of appeal dated 8 July 2010, the applicant set out five grounds of appeal. Each ground will be discussed below.

The Crown observed in submissions that, as the applicant's conviction had already been entered, the present application should proceed as an application for leave to appeal against conviction upon the ground that there has been a miscarriage of justice: s.6(1) of the Criminal Appeal Act .

In his Honour's judgment of 8 May 2009 on the application to withdraw the pleas, it was noted that counsel informed him that he and his instructing solicitor were in conflict with the applicant such that they could no longer appear and sought leave to withdraw.

On 29 July 2010, the applicant's new solicitor appeared and informed the court that he had only recently been retained and needed time to speak with the applicant. Accordingly, on his application, the sentencing proceedings were adjourned on the basis that a notice of motion for orders seeking withdrawal of the pleas was to be filed before 11 September 2008.

In due course, the proceedings were fixed for 14 November 2008. On that date, evidence on which the parties intended to rely was tendered. This included evidence from the applicant who adopted his affidavit sworn 10 September 2008.

Soon after, affidavits prepared by the applicant's former solicitor and counsel were provided to the Crown who, in turn, made them available to the applicant's present representatives.

On the application of the applicant, the proceedings were adjourned to 25 November 2008 for the cross-examination of witnesses including the applicant.

The proceedings were subsequently adjourned to resume on 27 January 2009 when the cross-examination of Mr Price of counsel resumed. Evidence was also led from Mr Price's instructing solicitor, Ms McGowan.

In his judgment of 8 May 2009, under the heading, "The Circumstances Leading to the Pleas of Guilty" , the following appears:- "22. It is apparent from the construct of the charges in the original indictment that the Crown was to allege that the applicant engaged upon connected episodes of misconduct over the period commencing on 4 September 2005 and concluding on 30 October 2006. Count 1 alleged that on 4 September 2005 he robbed a man named Minett of heroin whilst armed with a knife; counts 2 through 5 alleged that on 8 September 2005 he sought to intimidate the victim Minett and Rhonda Rumble, a witness; count 7 alleged that between 30 October 2006 and 8 December 2006 he conspired with his former girl friend, Renee Murphy, to maliciously inflict grievous bodily harm upon Rumble; and count 8 alleged that between those dates he conspired with others to dissuade Minett and Rumble from giving evidence. 23. It was to be alleged that after the robbery offence the applicant embarked upon the intimidation of the witnesses, and was thereafter denied bail. Then a man named Best was approached to interfere with the witnesses, but he brought the matter to the attention of the police and an undercover operative using the name Sean was introduced as a person who would do so. The undercover operative met with Murphy and the applicant on 6 December 2006 in Parklea gaol where the applicant was held. Their conversation was covertly recorded. 24. On 22 April 2008, when the matter commenced before me, Murphy had already pleaded guilty to charges against her for the role she played; she was to be called as a witness in the Crown case. 25. Initially the applicant challenged the admission of the [sic] both the recording of the conversation captured on 6 December 2006 during the meeting between the applicant, Murphy, and the undercover operative, and the transcript of that recording for use as an aide memoire. The premise offered was that the recording was mostly, if not entirely, indecipherable when played, and it therefore had no probative value. It followed that the purported transcript, which could be no more than and [sic] aide memoire even if the recording could be used, should not be put before the jury. 26. The tape was played in open court. A significant proportion of what was recorded could be heard and understood."

In determining whether, as alleged, Bennett DCJ erred in dismissing the application to set aside the pleas of guilty, I set out below the principles that apply to an application of that kind. It will also be necessary to refer to the evidence relied upon in the Crown case to prove the applicant's guilt in respect of Counts 2 and 3, as well as the evidence going to the issue of the applicant's understanding and appreciation of the nature of the charges to which he entered guilty pleas and his decision to plead guilty to the offences charged against him.

In Regina v Kouroumalos [2000] NSWCCA 453, Wood CJ at CL (with whom Studdert and Whealy JJ agreed) outlined the approach to be taken to an application to set aside pleas of guilty. In that respect, his Honour referred to the following propositions:- (1) Before this Court will go behind a plea of guilty and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Regina v Chiron (1980) 1 NSWLR 218, 231. (2) A miscarriage of justice may occur in circumstances in which, in offering a plea, an accused did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, would not in law have been convicted of the offences charged: Regina v Liberti (1991) 55 A Crim R 120 at 121 to 122; Regina v Foley (1963) 80 WN 726 and Regina v Caruso (1988) 37 A Crim R 1. (3) A court may also go behind a plea of guilty where the plea is entered after a trial judge has erroneously decided to admit evidence that would be fatal to the defence (as in Chiron (supra)) or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Regina v Murphy (1965) VR 187 at 190 or where the accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives: Regina v Favero [1999] NSWCCA 320 and Regina v Whitehead [2000] NSWCCA 400 or by the Court: Regina v Davey (NSWCCA, unreported 3 March 1995). (4) Whilst the above matters do not constitute an exhaustive statement of the circumstances in which pleas of guilty may be set aside, they are to be considered, as relevant, according to the facts of the particular case.

In Kouroumalos (supra), Wood CJ at CL also observed (at [19]):- "What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question."

The onus of establishing that there has been a miscarriage of justice lies on the applicant: Regina v Boag (1994) 73 A Crim R 35 at 36 to 37.

In Liberti (supra), Kirby P at 122 stated that, for good reasons:- "... Courts approach attempts at trial or an appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ..."

It is also observed by Lee J in Regina v Sagiv (1986) 22 A Crim R 73 that:- "The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken."

In addition to applying the relevant principles to an application such as the present, it is also necessary to consider whether or not, for example, a mistake occurred in the events or process leading to the entry of the guilty pleas or other circumstances existed that could be said to have affected the integrity of the pleas as admissions of guilt. On the other hand, if the evidence indicates that the pleas were entered in full knowledge of all the facts and intentionally to the charges is made, then Bennett DCJ was obviously entitled to exercise his discretion against the withdrawal of the pleas.

Accordingly, in the analysis below, the relevant facts are identified, and the evidence examined in order to determine whether the applicant was in possession of all the facts and whether he intended to plead guilty by way of admission to all of the legal ingredients of the offences.

The evidence available to the Crown in support of Grounds 2 and 3 consisted, inter alia, of intercepted telephone calls made by the co-offender, Ms Murphy, the evidence of Mr Best who the Crown alleged was approached by Ms Murphy at the applicant's request to take steps to dissuade or prevent the victims from giving evidence against him as well as material obtained by way of listening device (25 November 2006) which is said to support the evidence of Ms Murphy to the effect that she had met "Sean" and discussed a range of possible actions.

The relevant chronology of events relating to Counts 2 and 3 may be briefly stated as follows:- (1) In late October 2006, pursuant to the applicant's request, Ms Murphy approached Mr Best. (2) On 28 October 2006, Ms Murphy visited the applicant at Parklea Correctional Centre with Mr Best. The Crown case was that the applicant requested her to take steps directed to dissuading or preventing the victims from giving evidence against him. (3) On 25 November 2006, evidence obtained by listening device was said to provide support for Ms Murphy's evidence that she had met a person identified in evidence as "Sean" and had discussed a range of possible actions designed to assist the applicant in his abovementioned request to her. (4) On 1 December 2006, Ms Murphy was interviewed by police (ERISP, Exhibit VD2). (5) On 6 December 2006 at Parklea Correctional Centre, a conversation between the applicant, "Sean" and Ms Murphy was recorded by listening device. The Crown case was that in this conversation, the applicant asked "Sean" in graphic terms to inflict grievous bodily harm on the victims in order to prevent them from giving evidence.

On the voir dire, as earlier noted, two ERISPS (Exhibits VD2) between investigating police and the co-offender, Ms Murphy, who was to be called in the Crown case against the applicant, were tendered.

A statement of Mr Gary Best (Exhibit VD4) was also tendered. Mr Best was to be called in the Crown case against the applicant to establish that:- (1) As at 2006, he and the applicant had known each other for approximately 20 years. (2) The applicant apparently believed that Mr Best had a history of violence and/or intimidation. (3) On 2 October 2006, Ms Murphy arranged, at the request of the applicant, for Mr Best to visit the applicant in custody because the applicant wanted Mr Best to do something about the Crown witnesses (Minett and Rumble) who were to be called to give against him in relation to Counts 1 to 5 inclusive on the first indictment. (4) On 28 October 2006, Mr Best went with Ms Murphy to the Parklea Correctional Centre and there met with the applicant who asked him to obtain exculpatory affidavits from the victims, Minett and Rumble, and if they declined to provide the statements, then to "get them out of the way" , do "what you do" or "whatever it takes" . (5) Mr Best then informed police of these events.

In the course of the judgment on the application, Bennett DCJ made a number of observations including the following:-