Hughes v R

1. [1]

   PAYNE JA: On 29 January 2020 in the Lismore Local Court, the applicant, Tracey Hughes, pleaded guilty to one “rolled up” count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court. On 17 June 2020, McLennan SC DCJ sentenced the applicant to 2 years and 6 months’ imprisonment commencing on 15 June 2020 with a non-parole period of 18 months. The applicant will be eligible for parole on 14 December 2021.

2. [2]

   The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against her conviction on the following grounds:

3. [3]

   The applicant’s primary contention is that the elements of the s 192E Crimes Act offence were not proven by the statement of facts tendered at her sentencing hearing. The application was said to raise two issues concerning the operation and interpretation of s 192E:

   1. (1)

      the characterisation of the deception that must bring about or cause the financial advantage which was obtained; and

   2. (2)

      the possibility of “obtaining” a financial advantage by “keeping” it: see Crimes Act, s 192D(1)(c).

4. [4]

   A notice of intention to apply for leave to appeal against sentence was filed on 22 June 2020. The Registrar of the Court of Criminal Appeal extended the notice period three times to 15 April 2021. Grounds of appeal and submissions were filed on 6 April 2021. A notice of application for leave to appeal against conviction and sentence was filed on 15 April 2021.

Factual background

1. [5]

   From 11 July 2011 to 26 October 2018, the applicant was employed by the Moon Street Medical Centre service trust as the practice manager for the Moon Street Medical Centre at Ballina. In that role she was responsible for all financial payments and transactions conducted by the business. She was able to operate on her own an account held by the service trust with the Commonwealth Bank. The applicant was required as part of her employment to keep accurate accounting records for the Moon Street Medical Centre service trust by using a software accounting program known as MYOB.

2. [6]

   On 329 occasions between 19 January 2012 and 15 October 2018, the applicant, without authority, transferred funds from the Moon Street Medical Centre service trust bank account held with the Commonwealth Bank to her personal Commonwealth Bank account or her personal Greater Bank account. Given that the matter proceeded by way of a guilty plea, there was no information available to this Court about how those transfers were effected or whether the MYOB records of the transfers were made before, after or concurrently with the bank transfers. There were 41 fraudulent transactions in 2012, 32 in 2013, 46 in 2014, 46 in 2015, 71 in 2016, 60 in 2017 and 32 in 2018. Sometimes the amount involved was small ($66 on 1 June 2016) and sometimes it was larger ($1,587 on 6 March 2017). The total amount obtained was $179,153.60.

3. [7]

   The directors of the Moon Street Medical Centre service trust became aware of the offending in October 2018. At 4pm on 26 October 2018, the applicant attended a meeting with the directors. She consented to the conversation being recorded. During the meeting she admitted to multiple fraudulent transactions where she transferred funds belonging to the Moon Street Medical Centre service trust into her personal bank accounts without authority. It was suggested to the applicant that she had taken more than $40,000. She replied, “That’s about right.” The applicant said:

4. [8]

   The applicant wrote a letter dated 2 November 2018 making a general admission, a statement of remorse, and offer of repayment of the full amount. She was dismissed from her employment.

Charges laid against the applicant

1. [9]

   The applicant was initially charged with 330 separate charges. Sequences 1-329 each represented a separate charge under s 192E(1)(b) of the Crimes Act relating to separate transactions on certain dates.

2. [10]

   Sequence 330 was a “rolled-up” charge in the following form:

3. [11]

   The relevant “deception” specified in the indictment was the “fraudulent transfer of money”. As far as the evidence in this Court discloses, no further particulars of the relevant deception were sought or provided.

4. [12]

   The advantage to the applicant in the use of a rolled-up charge was that it restricted the maximum available sentence to that prescribed by the legislation for a single offence, rather than the total theoretically available as a maximum sentence from multiple charges: R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99 at [67]-[68] per Hoeben CJ at CL (with whom Rothman and McCallum JJ agreed); Kristensen v R [2018] NSWCCA 189 at [10].

5. [13]

   On 29 January 2020, at Lismore Local Court, the applicant was committed for sentence on sequence 330. The remaining 329 charges became back up charges pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW). The relevant deception identified in the Court Attendance Notice annexed to the s 166(1)(b) certificate for each of the back up charges was the “fraudulent transfer of money”.

6. [14]

   On 24 February 2020, the applicant entered a plea of guilty on arraignment before the sentencing judge. The applicant was legally represented and no complaint was made on appeal about the quality of that legal representation. A lengthy statement of agreed facts was tendered for the purposes of the sentence proceedings. That document set out some details of each of the 329 individual transactions including the fact that each transaction was falsely described by the applicant in the MYOB records. The description of the first few transactions in the statement of facts is set out below by way of example:

7. [15]

   The descriptions of the remainder of the 329 transactions followed the same form, setting out fraudulent transfers by the applicant from the Moon Street Medical Centre service trust Commonwealth Bank account to her personal accounts. The transactions were recorded in the MYOB program under many various descriptions including, but by no means limited to, “Wages”, “7765425700”, “TH wages”, “Xmas bonus”, “Vital”, “CGU”, “messagenet”, “petty cash”, “Refund”, “bunnings”, “moonmedical” and “Rebursement” [sic].

8. [16]

   The applicant gave evidence in the sentence proceedings. She confirmed that she agreed with the statement of facts which had been tendered. When challenged about a statement made to the psychiatrist that she had only transferred her own superannuation payments to her personal account, she confirmed that “there were other transactions that were disguised as other things”. The applicant also confirmed that she had started her fraudulent activity within six months of being employed. The following exchange occurred during re-examination:

Relevant legislation

1. [17]

   At all relevant times, s 192E of the Crimes Act provided:

2. [18]

   Section 192D(1) of the Crimes Act provided:

Consideration

1. [19]

   The applicant’s grounds seeking leave to appeal are set out at [2] above. Although not framed as an application to withdraw a plea of guilty, in substance, it faces impediments of much the same kind as those that would apply to an application for leave to withdraw a plea and those impediments are not recognised in the applicant’s submissions and have not been overcome. This point was made by the Crown in submissions filed before the appeal hearing. When this issue was raised with counsel for the applicant at the appeal hearing, the following exchange ensued:

2. [20]

   In relation to an application to withdraw a plea of guilty, the Crown relied upon the summary of the relevant principles in Layt v R [2020] NSWCCA 231 where I said (Walton and Fullerton JJ agreeing) at [24]-[28]:

3. [21]

   Those observations were cited with approval by Wright J (with whom I and Garling J agreed) in Bobbe v R (No 2) [2021] NSWCCA 150. Wright J added the following at [70]:

4. [22]

   The critical point, for present purposes, is that the applicant’s plea of guilty in the present case admitted all of the elements of the offence, at least to the minimum level necessary for a conviction.

5. [23]

   In Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, Dawson J considered the circumstances in which a conviction entered upon the basis of a guilty plea will be set aside on appeal and observed at 157 that:

6. [24]

   The applicant accepted that the judgment of Dawson J in Meissner correctly stated the law. Of course, there are circumstances where the facts admitted by the plea are incapable in law of supporting the charge, for example because the facts admitted are inconsistent with the charged offence. This is not such a case. Rather, in the present case the applicant’s complaint concerns the sufficiency of the agreed facts to support the charge.

7. [25]

   There is a clear distinction between a case where either the agreed facts or evidence received during the sentencing hearing is inconsistent with the elements of the charge and therefore the evidence is incapable of supporting the charge, and a case where this Court is asked to disregard the plea of guilty and to determine the guilt or innocence of the applicant based upon inferences drawn from the material tendered for the purposes of sentence which are not inconsistent with the elements of the charge. The latter course is impermissible. It disregards the principle that the applicant has, by her plea of guilty, admitted all of the elements of the offence, at least to the minimum level necessary for a conviction.

8. [26]

   Further, the application for leave to appeal in the present case was not supported by any evidence to suggest that the applicant was not guilty of the charge to which she entered a plea of guilty. Rather, the applicant invited the Court to speculate about what additional facts might be found upon further enquiry and conclude that if those facts were found the applicant may not be guilty of the particular offence charged.

9. [27]

   This is not a case where it has been shown that the applicant did not understand the nature of the charge or did not intend to admit that she was guilty of it. It is also not a case where upon the facts admitted by the plea the applicant could not in law have been guilty of the offence. The application for leave to appeal should be dismissed for this reason alone.

10. [28]

    I will now explain, by reference to the applicant’s grounds of appeal, the additional reasons why the application for leave to appeal must be refused.

11. [29]

    The following observation of Bathurst CJ in Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [350] correctly identifies the relevant law in relation to s 192E:

12. [30]

    It was not controversial that the applicant obtained a financial advantage to which she was not entitled by making the transfers to her personal accounts from the trust account. The applicant submitted, however, that the ultimate question was whether the applicant obtained a financial advantage “by any deception”. The applicant advanced three primary arguments as to why the element of deception was not established on the facts:

    1. (1)

       there was an issue with causation in that if it were concluded that some of the MYOB entries were made after the relevant transfers then the making of the MYOB entries did not “bring about” her financial advantage;

    2. (2)

       the applicant’s deception (in making the MYOB entries) did not allow her to “keep” the financial advantage for the purposes of s 192D(1)(c); and

    3. (3)

       there was no evidence of actual deception of the directors of the Moon Street Medical Centre service trust and thus the medical centre.

13. [31]

    The applicant submitted that the only possible “deception” was the making of the MYOB entries, and the charge of an offence against s 192E can only be good in law if it can be said that the making of the MYOB entries allowed her to “keep” a financial advantage within the meaning of s 192D(1)(c). The applicant submitted that she did not deceive any person before she made the transfers to herself, the MYOB entries did not need to be made before the transfers, and “presumably” many of them were not. It was submitted that the transfers happened undetected at the time of the transfers. It was submitted that the applicant did not need any person’s supervision or approval to make the transfers; she did not give fraudulent information or conceal information in conversations with colleagues.

14. [32]

    The applicant submitted that this was not a typical case involving the keeping of a financial advantage such as, for example, where a person keeps hold of a sum of money that he or she already has by failing to disclose a capital gain or a taxation event to the Australian Taxation Office or failing to disclose information to regulatory authorities that would prompt those authorities to restrict the person’s commercial activities and therefore cause the person some financial loss (see Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4). The applicant submitted that her conduct does not closely resemble the typical cases and therefore cannot be captured by ss 192D and 192E.

15. [33]

    The applicant further submitted that s 192D(1)(c) refers to the keeping of a financial advantage that “one has” (that is, before engaging in the deception that causes the keeping of the advantage). “Assuming” that the applicant gained her financial advantages before making the false MYOB entries, the applicant submitted that the advantage did not in a practical sense “predate” the entries; the transfers and the MYOB entries were part of the one pattern of behaviour and happened together. On this view, it was submitted, the applicant did not actually do anything to “keep” her various financial advantages; she merely made the false entries to avoid immediate detection and distract her employers from the true nature of the transactions.

16. [34]

    The applicant submitted that the case law concerning ss 192D and 192E is in a developing state, and there is no recently decided case raising a similar pattern of facts to this case. It was submitted that this conduct was not intended by the courts or Parliament to be captured by s 192E and the operation of that provision should not be widened.

17. [35]

    A fundamental problem with the applicant’s argument is that it treated the matter as though it had proceeded to trial. It had not.

18. [36]

    The question is whether the agreed facts were incapable of supporting the offence. That question is not answered by making assumptions favourable to the applicant about what facts might have been established after a trial in circumstances where the agreed facts themselves were silent and by her plea of guilty the applicant was taken to have admitted each of the elements of the offence.

19. [37]

    Two examples on this subject will suffice. First, the agreed facts were silent about whether the MYOB entries were made before, after or simultaneously with the relevant bank transfers. Counsel for the applicant accepted that his causation argument was only sound if it was assumed that the MYOB entries were made after the relevant bank transfers. There was no evidence that this was so. Nothing in the agreed facts pointed to this fact being established. The plea of guilty of itself satisfied all of the elements of the charge. Even assuming, in favour of the applicant, that there was a lacuna in the facts, that is not a sufficient basis to demonstrate a miscarriage of justice.

20. [38]

    Secondly, there was no evidence about the financial statements and taxation affairs of the Moon Street Medical Centre service trust. But for the fraudulent MYOB entries made by the applicant, the Moon Street Medical Centre service trust’s financial statements and taxation returns (every month’s Business Activity Statement) would have been quite different. It is likely that if truthful entries had been made by the applicant in the MYOB records this would have led to the immediate detection of the applicant’s fraud. This matter, however, was simply not investigated or litigated by reason of the applicant’s plea. The likelihood that such evidence would have been forthcoming at a trial cannot simply be assumed away by the applicant.

21. [39]

    Even more fundamentally, the applicant’s assertion that her making the false MYOB entries constituted the sole relevant deception was simply not correct. Those fraudulent entries were only part of her conduct. The deception identified by the indictment was not limited to making the fraudulent MYOB entries; it involved an entire course of conduct. The particularised deception in the indictment was “by fraudulent transfer of money”. The deception engaged in by the applicant involved the applicant falsely representing by her conduct (including written and verbal acts), to the Commonwealth Bank and her employer, that she had been authorised by her employer to transfer particular funds belonging to her employer to her personal accounts. The plea of guilty encompassed this broad ranging deception, on 329 occasions, over the six-and-a-half-year period comprised in the indictment.

22. [40]

    It is no doubt correct, as the applicant submitted, that the applicant “did not require the approval or supervision of another colleague to make payments” from the medical centre’s bank account. That is because she was in a position of trust. The applicant was not, however, authorised to treat funds belonging to her employer as she liked. She was under an obligation throughout the whole of the period in the indictment to apply funds for the proper purposes of the Moon Street Medical Centre service trust.

23. [41]

    The applicant’s plea acknowledged that she practised an ongoing deception on her employer and its bank, pretending that she was acting in accordance with her obligations and within the scope of her authority, when in fact she was misappropriating the employer’s funds for her own benefit. The applicant accepted that deception of that kind is sufficient for the purposes of s 192E(1)(b). It is well established that changed circumstances or state of mind can give rise to a deception: Director of Public Prosecutions v Ray [1974] AC 370. The relevant deception was not required to be by words but could be established by conduct: Crimes Act, s 192B(1).

24. [42]

    Even if, as the applicant submitted, the MYOB entries comprised the universe of the relevant deception, they were in any event causative because the concealment of the individual misappropriations allowed the applicant to continue representing to her employer that she was acting in accordance with her obligations and within the scope of her authority. The concealment of the individual misappropriations by false MYOB entries thereby allowed the applicant to continue in the position from which she was able to commit the further misappropriations.

25. [43]

    Causation in the context of s 192E(1)(b) is essentially a question of fact: Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 at [63]-[79] (Simpson AJA; Campbell and N Adams JJ agreeing); [94]-[95] (N Adams J). Fundamentally, there was a factual basis for causation available from the agreed facts and all the elements of the offence (including causation) were acknowledged by the applicant in her plea. Nothing in the facts or evidence adduced in the sentence proceedings was incompatible with the applicant’s guilt of the charge. In any event, there is no principle of law that a statement of facts must deal with every element of an offence, or that any omission to do so would entitle, on appeal, a person who has pleaded guilty to an acquittal or a retrial.

26. [44]

    Grounds 1 and 2 must be rejected.

27. [45]

    The applicant submitted that the statement of agreed facts did not disclose whether the medical centre was in fact deceived by the false MYOB entries. The only agreed fact on this issue was that:

28. [46]

    The applicant submitted that there was no evidence that other staff members reviewed the MYOB entries (and the entries’ correspondence with other financial records), and therefore there was no material upon which it could be said that the centre was deceived by the MYOB entries. The applicant submitted that it was this deception that allowed her to “keep” (and therefore “obtain”) her financial advantage. It was submitted that until the production of evidence of the centre’s own review of the applicant’s MYOB entries and its limited checks on the applicant’s conduct, it would not be clear that s 192E captured her conduct. It was further submitted that each of the relevant MYOB entries would need to have had a deceptive influence on the centre. By the time the centre had discovered the total amount transferred by the applicant, the applicant had enjoyed the benefit of the transfers for a long time. The applicant submitted that the MYOB entries were not what allowed her to “keep” her advantage.

29. [47]

    This argument may be rejected in short order. As I have said, it is obvious that but for the fraudulent MYOB entries made by the applicant, the Moon Street Medical Centre service trust’s financial statements and taxation returns (including every month’s Business Activity Statement) would have been quite different.

30. [48]

    Further, and in any event, the relevant conduct identified in the indictment was not limited to the MYOB entries but encompassed the applicant’s false representations to the Commonwealth Bank and her employer about her obligations and authority. There is no requirement that the operative deception be proved by direct evidence. Nor is there a requirement that the deception operated on the mind of a natural person: see National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21.

31. [49]

    It is open for the prosecution to prove the relevant deception as a matter of inference: Decision Restricted [2019] NSWCCA 43. In Flack v R [2011] NSWCCA 167, this Court (Johnson J; McClellan CJ at CL and Hidden J agreeing) summarised the principles relating to proof of deception as follows:

32. [50]

    Leaving aside the fact that by her plea the applicant established this element of the offence, in the present case there was an overwhelming inference that the Commonwealth Bank paid away funds to which the Moon Street Medical Centre service trust was entitled on the basis that it was induced by the applicant to believe that the applicant was entitled to have those funds deposited in her personal accounts. There is likewise an overwhelming inference that the directors of the Moon Street Medical Centre service trust were deceived by the applicant into believing that funds to which the trust was entitled were only being disbursed by the applicant for the proper purposes of the trust and not deposited in her personal accounts without authority.

33. [51]

    Having pleaded guilty, the applicant should not be permitted to advance this ground. This ground must be rejected.

Conclusion and orders

1. [52]

   For the foregoing reasons, the application for leave to appeal is without merit and should be refused. I propose the following order:

   1. (1)

      Leave to appeal refused.

2. [53]

   WILSON J: This application was seriously misconceived. I agree with the orders proposed by Payne JA for the reasons given by his Honour. I also agree with the additional observations of Fagan J.

3. [54]

   FAGAN J: I agree with Payne JA that leave to appeal should be refused.

4. [55]

   In R v Murphy [1965] VicRp26; [1965] VR 187 Scholl J made this observation concerning the common form statutory provision for appeals against conviction:

5. [56]

   The Crown’s written submissions commenced as follows:

6. [57]

   The applicant in the present case invokes the principle, established in the authorities cited by Payne JA, that a miscarriage of justice may be established and the conviction may be set aside if the facts alleged by the Crown, upon the basis of which the plea was entered, are incapable of sustaining the charge.

7. [58]

   In s 192E(1) of the Crimes Act, under which the applicant was indicted, the words “by any deception” import two elements of the offence; namely, (1) that the accused performed some act that constituted deceit and (2) that the deceit caused a financial advantage to pass to the accused: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [352] (Bathurst CJ) citing R v Clucas [1949] 2 KB 226 at 229-230; Clarkson v R [1987] VR 962 at 980; Ho and Szeto v R (1989) 39 A Crim R 145 at 147; Flack v R [2011] NSWCCA 167 at [37]-[38]. The applicant now argues that there were not alleged against her any facts of having performed or practised an act of deceit upon any specified person or entity, nor any facts of such deceit having caused financial advantage to herself. It is said that by entering her plea the applicant therefore did not admit to any facts constituting these two essential elements.

8. [59]

   The indictment itself alleged the facts of deceit and causation, not with particularity but in the terms of the section, as follows:

9. [60]

   The amount of the financial advantage alleged in this single count was the total of 329 withdrawals from the bank account of the applicant’s employer. She entered her plea on 9 March 2020. The Crown and the applicant agreed upon a statement of facts. This commenced with recitation of the charge itself. The agreed facts included that the applicant had access to her employer’s bank account and that she transferred each of the 329 amounts to one or other of her two personal bank accounts. Each of the 329 transactions was specified in a separate paragraph of the statement of facts. The first transaction was described, in part, as follows:

10. [61]

    The subsequent 328 transactions were described in repetitive, formulaic paragraphs using the same wording, varying only with respect to the date, the amount, the number of the applicant’s personal account and the notation in the MYOB accounting program. The agreed facts did not particularise the “deception” that was alleged in the indictment, or the mode of causation “by” which the deception brought financial advantage to the applicant. They contain no elaboration of the expression “by fraudulent transfer of money”. The appeal papers do not reveal whether the statement of agreed facts was produced before or after the plea of guilty was entered. It was provided to the learned sentencing judge at the sentence hearing on 15 June 2020.

11. [62]

    The applicant’s written submissions to this Court dwell upon the descriptions that she entered in her employer’s MYOB accounting system in relation to each transfer. In oral argument the applicant’s counsel said this:

12. [63]

    On those assumptions counsel submitted that the MYOB descriptions of the transfers, viewed as deceitful representations, were incapable of causing financial benefit to the applicant because each false description was entered after the proceeds of the transfer had been received. It was submitted that there was no agreed fact, nor any evidence, that a person or entity was deceived by the MYOB entries, still less that any person or entity effected the transfers in the applicant’s favour under the inducement of being so deceived.

13. [64]

    In circumstances where the applicant accepted the statement of facts in the broad terms earlier referred to, without specification of the deceit that had been practised by her or of the mechanism by which that deceit had caused her to receive financial benefit, there is no basis for her now asserting that the deceit must be particularised as the making of the MYOB entries. The material to be examined in order to understand the foundation of the applicant’s plea is limited to what was in existence at the date of that plea. I do not accept the applicant’s contention that submissions on sentence or the learned judge’s remarks on sentence are relevant. In any event, neither the submissions nor the remarks alter the position that in the District Court the applicant made no stipulation that she was pleading guilty on the basis of a specified mode of deceit or a specified mode of causation.

14. [65]

    The applicant cannot now, after her plea has been accepted, insist upon particulars of deceit and of causation and then submit that they are incapable of fulfilling the legal elements of the charge. The reality is that the applicant admitted all facts necessary to constitute the offence, including that she practised dishonest “deception” and that financial advantage was obtained “by” that deception. By her plea of guilty the applicant admitted all elements as set out on the indictment. The applicant cannot establish a miscarriage of justice by retrospectively choosing particulars of her deception in such a way as to found an argument that the form of deception could not have been causative.

15. [66]

    The applicant’s written submissions do not acknowledge the possibility that her manner of operating the employer’s bank account may have deceived the bank as to the propriety of the transactions and as to her authority, causing the bank to effect and honour the transfers whereas that may not have occurred if the bank had realised that unauthorised misappropriation of the employer’s funds was taking place. The written submissions do not acknowledge the possibility of construing the events as an ongoing deception of the employer. However, those possibilities appeared to be accepted in argument before us. Deception, for the purposes of the offence, does not have to take the form of a verbal or implied misrepresentation and causation may be proved by inference without identifying any individual who was actuated by the deceptive conduct: Decision restricted [2019] NSWCCA 43. It is not necessary to analyse these alternatives in circumstances where the applicant herself did not require the Crown to specify her deceit or the mode by which financial benefit to herself was caused. She was content to leave those elements at a high level of generality for the purposes of the plea. Having done so, it is not open to her unilaterally to specify the elements on appeal and then submit that what she specifies was unsupported by evidence or agreed facts.

16. [67]

    An appeal against conviction will only be allowed after a guilty plea if the material before the Court shows that there is a real question about the applicant’s guilt: R v Toro-Martinez [2000] NSWCCA 216 at [26]-[27] (Giles JA). In the present case, no question about guilt is raised merely by the applicant showing that in the District Court neither she nor the Crown particularised the deception to which she admitted or the mode by which the deception brought her financial advantage. This case stands in contrast to a situation where fully detailed facts are agreed in the lower court and it can be seen that those facts did not amount, in law, to the offence in respect of which the plea was entered.

17. [68]

    On an application such as this the Court is concerned with the integrity of the plea as an admission of guilt: R v Sagiv (1986) 22 A Crim R 73 at 80. In Meissner v The Queen (1995) 184 CLR 132 at 141, Brennan, Toohey and McHugh JJ said:

18. [69]

    The circumstances that may establish that a plea of guilty is not a true admission of guilt “include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage”: Maxwell v The Queen (1996) 184 CLR 501 at 511 (Dawson and McHugh JJ). On the present application no evidence has been adduced of any such circumstance. The applicant has not sworn an affidavit to contradict the appearance that she exercised a free choice in the entry of her plea, with full understanding and in her own interests. The application to this Court seems to be entirely a construct of her present legal representatives, upon no firmer foundation than the lack of specificity in the charge and in the agreed facts.

19. [70]

    During oral argument I expressed the view, to which I adhere, that this is a very unsatisfactory proceeding in the absence of any evidence to contradict the clear picture that at all times the applicant has wished to accept responsibility for her conduct. So far as this Court is aware, she still accepts responsibility for having dishonestly obtained this very substantial sum from her employer over the course of nearly 7 years. The solicitor representing the applicant in the District Court evidently did not find it requisite in her interests to insist upon more precise delineation by the Crown of what had constituted her deceit or of how it had caused financial advantage to accrue to her. There is no merit in the application for leave now brought in this Court, essentially in reliance upon lack of particulars, without any evidence from the applicant to impugn the integrity of her plea.