Garcia-Godos v R (Cth)

HOEBEN CJ at CL:

The single ground of appeal is:

Count 1 on the indictment is:

The other two counts on the indictment as originally framed were:

On 23 December 2005, 34 kgs of pure cocaine was imported into Australia from Peru, concealed within bags of lucuma (fruit) powder. The applicant travelled to Australia on various occasions in 2005 and 2006, departing finally on 26 March 2006.

The applicant was arrested on 11 July 2008 in Peru, pursuant to an arrest warrant issued by the Australian Federal Police (AFP). On about 28 February 2010 the applicant was extradited from Peru and arrived in Australia on 1 March 2010 at which time he was charged with the offences on the indictment. The applicant has remained bail refused since that date.

On 1 September 2010 the applicant waived his right to a committal hearing at Central Local Court in relation to those offences. The matters were committed to the Sydney District Court for trial.

In February 2011 the applicant engaged Victoria Havryliv, a solicitor in the employ of Ford Lawyers, to act on his behalf. On 14 April 2011 Ms Havryliv sent a letter to the Commonwealth Director of Public Prosecutions (CDPP) advising that she had been instructed by the applicant to enter into plea negotiations with the Crown. On 11 May 2011 the CDPP replied to Ms Havryliv to the effect that the plea offer was not accepted. A counter offer was made.

On 20 May 2011 Ms Havryliv telephoned the CDPP and advised that the applicant would enter pleas of guilty in accordance with the counter offer. The counter offer was that pleas of guilty would be entered in respect of counts 1 and 2, with count 3 being taken into account pursuant to the provisions of s 16BA of the Commonwealth Crimes Act.

On 20 May 2011, with the aid of a Spanish speaking interpreter, the applicant was arraigned before Solomon DCJ at the Sydney District Court. The applicant entered pleas of guilty in respect of counts 1 and 2 on the indictment. The applicant was not present in person but appeared by audio-visual link. He was represented on this day by Ms Havryliv.

The matter was subsequently listed on a number of occasions for a disputed sentence hearing. On 2 March 2012 the sentence hearing date was vacated and for the first time, the District Court was advised that it was the applicant’s intention to seek leave to withdraw his pleas of guilty to counts 1 and 2.

The application for leave to withdraw the pleas of guilty was heard by Toner SC DCJ on 15-18 January, 25 January and 25-26 February 2013 with his Honour giving judgment on 28 February 2013. The application for leave to withdraw the pleas of guilty was dismissed.

The applicant’s case relied primarily on his own affidavit, sworn 8 November 2011, his oral evidence before the court and an affidavit sworn by Richard Cornwell (Cornwell), dated 22 November 2012. Cornwell also gave oral evidence.

The effect of the applicant’s evidence was that he never agreed to plead guilty to the importation count and never told his lawyers that he wanted to plead guilty. He maintained that he was not guilty of the importation count. In evidence he said that he instructed Ms Havryliv that he did not import any drugs into Australia as charged and that “I had no involvement with the importation” (affidavit [21]). He said that on 20 May 2011 he talked to Ms Havryliv and said “Are you sure what I’m doing? Because I have nothing to do with the importation”. She said “Don’t worry, you are going to be a witness and tell the judge. You are going to declare and tell your story” (T.21.25, 24.36).

On other occasions in evidence he said that his instructions to his solicitor were that he was not the person in charge of the importation. He did not sign any instructions to enter pleas of guilty. When he pleaded guilty, he had not seen any version of the statement of facts but had seen the brief of evidence.

The applicant said that he did not understand the repercussions of pleading guilty, namely that once he pleaded guilty he was “stuck with it” (affidavit [39]). He said that Ms Havryliv advised him that the sentencing judge, after hearing his evidence on sentence, “would be able to throw out the importation charge or at least minimise his role” (affidavit [36], [38], T.18.37, T.61.05). In other words, his understanding was that after he pleaded guilty the sentencing judge “could drop the important charge” or convict him of a lesser charge (affidavit [24], T.18.45).

The applicant said that he had a poor command of spoken and written English and that as at 6 April 2011 (the date of a key conference with his solicitors), he could not converse in English and could speak only “very, very basic” words. He said that this contributed to his misunderstanding with his solicitors.

The applicant said that his solicitors pressured him to plead guilty. He said that Ms Havryliv told him “I should declare myself guilty of two of them [the charges]” (T.14.07, T.15.05, T.18.30, T.60.35). The advice that he had to plead guilty was only given by Ms Havryliv and Ms Maltezos. This advice was not given in the presence of his counsel, Ms Nash.

The applicant made no mention in his affidavit and evidence in chief about any conferences with his solicitors before, at the time of and subsequent to his entering of pleas of guilty. There were in existence file notes relating to those conferences (exhibit B, which was the file of Ms Havryliv). The applicant’s evidence in relation to the file notes was confusing and he appeared to have problems isolating his recollection from one conference to the next. His Honour regarded that as understandable. The effect of the file notes was that the applicant was not saying that he had nothing to do with the importation, but that he was not a principal in the importation. A file note taken on 6 April 2011 had the applicant saying: “Involved, involved but I am not the boss”.

His Honour expressed his conclusion in relation to the file notes as follows:

Cornwell was an inmate held in the same prison as the applicant. His evidence concerned what he had been told by the applicant. Significantly, Cornwell did not speak Spanish. He explained his communication with the applicant by describing it as a tortuous process, involving very long conversations in halting English. Where his evidence conflicted with that of the applicant, he sought to explain it by saying that he may well have been mistaken in his interpretation of what he had been told by the applicant.

Cornwell was also involved apparently in committing an importation of drugs offence and was involved with persons who may well have been the principals in the importation with which the applicant was concerned. This was never made clear. Cornwell was at pains to portray himself as somebody who was acting, in effect, altruistically and trying to assist the applicant to understand the nature of the predicament in which he was and to assist in interpreting and explaining the nature of the evidence that the Crown proposed to produce against the applicant.

His Honour summarised his assessment of the evidence of the applicant and Mr Cornwell as follows:

His Honour specifically noted that many of the answers given by the applicant in evidence were at odds with the notes on conference contained in exhibit B. They were also inconsistent with much of the written records of Cornwell, said by Cornwell to be derived from his lengthy conversations with the applicant. His Honour observed that it was hard to see why the applicant would want to co-operate with the AFP (as he sought to do by making a statement to them) if in fact he was not involved in the importation offence.

The Crown adduced oral evidence from a federal agent, Ms Nash of counsel, Ms Havryliv solicitor, and Ms Maltezos solicitor.

In general terms his Honour was critical of both Ms Havryliv and Ms Nash in that some conferences with the applicant were conducted without an interpreter. He was also critical of the fact that written instructions concerning the entry of pleas of guilty to counts 1 and 2 were not obtained from the applicant. Despite those criticisms, his Honour accepted both Ms Havryliv and Ms Nash as witnesses of truth.

The evidence of Ms Nash was that the notes contained in exhibit B accurately reflected the instructions given by the applicant to her and Ms Havryliv. His Honour took into account that it was never put to Ms Nash that the notes in exhibit B were not an accurate record of the conferences. Those notes were to the effect that the applicant well understood the effect of the pleas of guilty and had given clear instructions for those pleas to be entered. His Honour’s conclusion in relation to the evidence of Ms Nash was:

The evidence of Ms Havryliv was that although the applicant’s English was not always grammatically correct, she could comfortably understand him and it was apparent from his responses to her and his interaction in this and the other conferences where an interpreter was not present, that he understood her English.

Ms Havryliv gave evidence concerning a conference she had with the applicant on 18 May 2011 at Long Bay. There was no interpreter present. She said that her note of that conference was an accurate reflection of it. She said that she showed the applicant the letter from the DPP containing the counter proposal and that she received instructions to plead guilty to the two counts that would be left on the indictment in accordance with the offer made by the DPP. She denied that she had ever told the applicant to plead guilty.

The events of 20 May 2011 are important because that is the day upon which the pleas of guilty were formally entered in court. Ms Havryliv said that on that day she spoke to the applicant via the audio visual link with the assistance of an interpreter. The interpreter read out the indictment that was to be presented against the applicant in Spanish. She explained to him what was to happen next and he was then arraigned before Judge Solomon and entered the two pleas of guilty.

His Honour set out his conclusion as to the evidence of Ms Havryliv as follows:

His Honour made similarly favourable findings in relation to the evidence of Ms Maltezos, who was a solicitor junior to Ms Havryliv and who attended three of the conferences with the applicant.

The evidence of the federal agent was to the effect that the applicant had a good understanding of English. The agent had spent a considerable period of time with the applicant when escorting him under arrest from Peru. Some of the conversations he had with him were played to the court and the content of those conversations supported his assessment of the applicant’s knowledge of English.

His Honour set out his findings as follows:

The applicant was represented by solicitors and counsel before Toner SC DCJ. When the matter came to this Court, the applicant appeared for himself. The applicant relied upon written submissions which he had prepared and made brief oral submissions to supplement them.

The applicant’s written submissions essentially repeated the submissions made on his behalf in the District Court. The applicant also sought to explain the words attributed to him in the solicitors’ notes and which were specifically referred to by his Honour. At no time did he deny that he used those words but offered explanations to the effect that his admissions related to count 2, or that on those occasions that an interpreter was not present, he did not understand what was being said to him because of his imperfect knowledge of English. The applicant sought to explain the non-responsive nature of some of his answers by saying that he was extremely nervous and was not used to a court atmosphere.

The applicant accepted that Ms Nash may well have believed that he had agreed that he was involved in the drug importation. He thought that may have occurred because Ms Havryliv had told him that he would be able to explain to a judge at a sentencing hearing that he was not so involved. He submitted that although Ms Nash may genuinely have felt that he was not pressured into pleading guilty, he felt that he had been so pressured. The applicant said that he accepted that Ms Nash was honest in her evidence but that she had misunderstood what he had said.

The applicant submitted that Ms Havryliv had an agenda, which included persuading him to enter a plea of guilty to both counts. He complained that she was not cross-examined sufficiently aggressively by his counsel in the District Court. He submitted that he was disadvantaged because he was unable to take notes of what had occurred at conferences, due to being in custody and not having a proper knowledge of English. He submitted that Ms Havryliv had a significant advantage in that she was able to take notes of what occurred at the conferences and refer to those notes when giving evidence. It was therefore very difficult to challenge her evidence.

The applicant submitted that he believed from what Ms Havryliv had told him that if he pleaded guilty to the importation count, he would still be able to explain to a judge in the sentence proceedings that he was not involved in that offence. He submitted that in retrospect that was probably a foolish belief but it was a belief which he genuinely held at the time that he entered his plea of guilty.

The applicant submitted that Ms Havryliv was mistaken or confused when she gave evidence that he had unequivocally agreed to plead guilty to the importation offence. He submitted that in giving the evidence which she did, she was seeking to protect her reputation since it would not help her professionally to be known as a person who bullied a client into entering a plea of guilty when that was not what the client wished to do.

The applicant submitted that Ms Maltezos was a junior solicitor and in effect was dominated by Ms Havryliv. He submitted that Ms Maltezos would have also been aware that her professional reputation was at stake when she gave evidence in the District Court.

The applicant submitted that because Cornwell was also a client of Ms Havryliv the evidence, which he gave both in his affidavit and orally, was designed to assist her and not him. He submitted that in giving his evidence Cornwell had a conflict of interest between trying to assist Ms Havryliv and apparently trying to assist him.

The applicant sought to challenge his Honour’s findings in a number of respects. He submitted that if the Crown had such a strong case against him, why was the Crown so determined to prevent him having a trial, so that the Crown case could be examined by a jury. The applicant submitted that he did not understand that by pleading guilty to the importation offence, he was accepting that he had played a part in the importation of the cocaine.

The applicant submitted that his Honour was mistaken in the conclusions which he had drawn from the evidence. The applicant denied that he had played any part in the importation of the cocaine and that his only involvement was to help launder the money. He submitted that he was not able to make clear to Ms Havryliv nor did he clearly understand himself, that he could plead guilty to one part of the crimes with which he had been charged and not guilty to the other.

It is instructive to set out one of the submissions of the applicant on this issue:

The applicant also made submissions as to why he was not guilty of the offence:

This matter comes before the Court pursuant to s 5F(3) of the Criminal Appeal Act and not by way of a conventional appeal. Accordingly, it is necessary to understand the nature of the appeal. Uninstructed by authority, I would have thought that for the applicant to succeed he would need to establish House v R [1936] HCA 40; 55 CLR 499 error. That, however, is not the case.

This issue was considered in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 where Basten JA (with whom Grove and Howie JJ agreed) said:

For obvious reasons, the applicant made no submission concerning the legal tests applied by his Honour when considering the applicant’s application. It is clear that his Honour had regard to relevant decisions and applied the principles identified in those decisions appropriately (R v Boag (1994) 73 A Crim R 35, R v Van [2002] NSWCCA 148; 129 A Crim R 229, Wong v DPP (NSW) [2005] NSWSC 129; 155 A Crim R 37). His Honour accepted that he had a discretion to allow an accused to withdraw a guilty plea at any time before the passing of sentence (Frodsham v O’Gorman (1979) 1 NSWLR 683 per Hope JA at [389]).

The decision upon which his Honour focused was that of Justice Greg James in Van. In that judgment Justice Greg James collected and stated the principles relevant to such an application. That statement of legal principle in Van has been approved on many occasions in this Court, most recently in Lawson v R [2011] NSWCCA 44; 206 A Crim R 557 at [32] – [36]; Khamis v R [2014] NSWCCA 152 at [57] – [59] and Kim v R [2015] NSWCCA 115 at [53] – [56].

As was stated in Khamis at [59]:

That was the approach followed by Toner SC DCJ in this case and I have found no error in either his Honour’s statement of the principles or the way in which he applied them. The authorities have consistently restated the underlying principle that a plea of guilty will only be permitted to be withdrawn where it has been shown that a miscarriage of justice has occurred. The applicant bore the onus of proof on a balance of probabilities to show the existence of such a miscarriage and was required to establish “a good and substantial reason for the court taking that course” (R v Sewell [2001] NSWCCA 299 at [39]).

It follows that if the applicant was to be successful in this appeal he had to show some error on the part of his Honour in relation to his fact finding. It is for that reason that I have set out in considerable detail the findings of fact and process of reasoning of his Honour in making those findings of fact.

In reviewing his Honour’s process of fact finding, it also needs to be kept in mind that his Honour had the benefit of seeing and hearing the witnesses and “has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole …” (Fox v Percy [2003] HCA 22; 214 CLR 118). Accordingly considerable weight has to be given to his Honour’s assessment of the reliability of the witnesses who gave evidence before him.

When one has regard to the specific matters raised by and on behalf of the applicant, there is no error in the decision to refuse the applicant’s application to reverse his guilty plea to the importation count and no miscarriage of justice has arisen.

Having heard the evidence, and having taken into account the conference notes in exhibit B, his Honour held that the applicant’s evidence lacked credibility and could not support findings that he never instructed his solicitors to plead guilty, or gave instructions that he played no role in the importation. The applicant’s evidence that he never wanted to plead guilty was directly at odds with the evidence of his solicitors and the notes made during their conferences with him. His Honour found that the evidence of Ms Havryliv and Ms Maltezos was accurate, contemporaneous (referring to the notes), credible and consistent (referring to their testimony).

As already indicated, the theme running through the solicitors’ notes was not that the applicant was not involved in the importation offence but that he played a minor role in it. It is clear from those notes that the applicant gave instructions which were consistent with his involvement in the importation offence.

His Honour was critical of Ms Havryliv and Ms Nash for not obtaining signed instructions from the applicant for the entry of the pleas of guilty. Even so his Honour was not satisfied that the absence of signed instructions proved that the applicant had never instructed his solicitors to enter pleas of guilty on his behalf or that he had not admitted guilt to his solicitors. The absence of signed instructions was well and truly overcome by the content of the conference notes and the evidence from the solicitors and Ms Nash.

The applicant accepted that he understood the nature of the charges against him. He accepted that on 22 March 2011 Ms Nash read the charges out to him and explained what they meant. Further, he was not a stranger to criminal proceedings in Australia. In 1990 he was convicted of possessing cocaine in Australia. On that occasion he was represented by a solicitor, Mr Greg Goold. He pleaded guilty to the offence, after some negotiations by Mr Goold, and knew that when he pleaded guilty he was admitting to having committed the offence. In his evidence, he accepted that during the extradition proceedings in Peru, he understood that he was charged with the importation of a large amount of cocaine into Australia.

The applicant was advised of the plea negotiations and their outcome. This is clear from the solicitors’ notes. On 12 May 2011 Ms Maltezos (with an interpreter) advised the applicant that the best that could happen was a plea of guilty to counts 1 and 2, with count 3 on a Form 1 and a contested hearing on the facts. This advice was repeated to the applicant by Ms Havryliv on 18 May 2011. On 20 May 2011 the applicant pleaded guilty with the benefit of an interpreter translating the charges which were read out to him.

The applicant’s claim that he had little or no knowledge of English was problematic at best.

The applicant gave evidence that it was always Ms Havryliv who was pressuring him to plead guilty. He said that “when the interpreter was present, they never touched the subject that I declare myself guilty” (T.98.50-99.03). However, on 6 April 2011 when both Ms Nash and the interpreter were present, the solicitors’ notes record “I do not want to go to trial but I was not the principal”. Although the applicant denied saying that, it was not suggested that these notes were fabricated. Moreover, the applicant later contradicted himself by stating that he told his lawyers on 6 April 2011 that he did not want to plead guilty to the importation charge.

On 6 April 2011, after a lengthy analysis of the Crown case against him, the solicitors’ conference notes record “It is a matter for you whether you go to trial or plead”. There was no suggestion that those conferences notes were not accurate.

Because the applicant was representing himself, I have gone into more detail in relation to this appeal than was strictly necessary. It is, however, clear from a review of his Honour’s statement of the law and application of those principles to the facts that the complaints made by the applicant at (a) – (d) (see [55] – [62] hereof) have not been made out. There was no error in his Honour’s identification of the applicable law or its application. There was a sound basis in evidence for the findings made by his Honour and the rejection of the issues raised on behalf of the applicant. This led to his Honour’s ultimate decision that no miscarriage of justice would arise from the applicant being required to maintain his guilty plea to the importation count.

In those circumstances, the appeal should be dismissed.

JOHNSON J: I agree with Hoeben CJ at CL.

BEECH-JONES J: No basis has been put forward by the applicant for interfering with the findings of fact made by Toner SC DCJ in rejecting his application to reverse his plea. Those findings were supported by the objective material before his Honour and were otherwise informed by the advantage that his Honour enjoyed in observing all the witnesses give evidence. Once those findings were made the rejection of the application to reverse the plea was inevitable. I otherwise agree with the reasons of Hoeben CJ at CL. I agree with the orders his Honour proposes.