Ground 3 and its Sub-Grounds 3a - 3e Inclusive
19 As to Ground 3 itself, I do not agree that Judge Williams failed "to apply the authorities relevant to the application of the reversal of plea". It is true that his Honour did not pose for himself the three questions to which reference is made by Ipp AJA in his Honour's paragraph 34: or more precisely, his Honour did not pose those three questions in the precise terms stated in that paragraph 34.
20 It seems to me, however, that his Honour did in fact deal with the substance of the matters to which those three questions pertain.
21 At page 15 of his Honour's reasons the following is stated:
"In a serious criminal matter a barrister has a duty to his client to fully explain all the ramifications of the trial process. This must include telling an accused of the very real advantages to him if he pleads guilty. Indeed if counsel did not explain pleading guilty to a client he could well be professionally negligent. There is nothing wrong with counsel raising that topic with an accused and indeed it would be his duty to continue to raise it especially if his perception of the likely outcome for the accused seemed to be getting worse as time went by. I see nothing wrong with counsel setting out the situation to his client forcefully, if that becomes necessary, because his duty at all times is to obtain the best result for his client having regard to the facts. Such conduct on the part of counsel could not be regarded as a threat or amount to some other impropriety."
22 I would say three things about what is there stated by his Honour. First, what is there said by his Honour, whatever else might be said about it, seems to me to address quite clearly the question whether the advice given to the applicant had been either or both imprudent and inappropriate. Secondly, I would add after the words "having regard to the facts" some such words as "………….. and due regard being had to counsel's own professional obligations and responsibilities". Subject to that addition I would respectfully agree with the general purport of what is stated by his Honour in the quoted paragraph. Thirdly, those observations of his Honour were not made in, so to speak, some kind of conceptual vacuum. His Honour had earlier observed, at page 9 of his reasons, and in my respectful opinion correctly so, that:
"What is of relevance is what happened in the days immediately leading up to the plea occurring. Mr. Piras had eight days of sitting and watching the video evidence unfold in which to consider his position. He wasn't rushed from conference to court and a plea immediately entered. Despite that eight days and the almost two years that have elapsed since the plea was entered, nothing has been put before the court to explain or negative the evidence contained in the video material."
23 His Honour had before him, and seems to me to have taken into account in the present context, the contents of written instructions given by the applicant to his counsel on 21 June 2004 and an agreed statement of facts actually signed by the applicant himself and witnessed by his solicitor. It will be necessary to say presently something more particular about the contents of those documents. It suffices to say for the moment that it is, in my opinion, crystal clear that his Honour considered whether there was any substance to an allegation that the advice which had led to the execution of those documents "was or was not imprudent and inappropriate".
24 His Honour's approach to the question whether the applicant's plea of guilty "was or was not attributable to a consciousness of guilt" is strongly criticised in the submissions now put for the applicant. Once again, it will be necessary to say later herein something more particular about that aspect of the present application. The point to be made at the moment is that it is completely clear from a reading of his Honour's published reasons that his Honour embarks, on page 12 of those reasons, upon an extensive canvass of the issue of "consciousness of guilt". It is, in my opinion, equally clear that his Honour applied his mind specifically to the question whether the materials before his Honour showed "that there is or is not a real question about (the applicant's) guilt".
25 In my opinion Ground 3 has not been made good.
26 As to Ground 3a, his Honour was of the opinion, which I respectfully share, that certain answers given by the applicant in cross-examination on 7 April 2006 had real bearing upon this topic. The relevant evidence is as follows:
"Q. Why were you at Hampson's premises?
A. Every time I went to Hampson's premises, I never went there to supply drugs.
Q. Why did you go there?
HOWEN: Your Honour at this stage I object to it. Any answer to this question could lead to my client incriminating himself and he has a right to avoid self incrimination and it's a matter for Mr. Piras of course but as his lawyer, I do need to intervene on that basis and it's a matter for Mr. Piras.
HIS HONOUR: Q. Well Mr. Piras you don't have to answer any question if you think it might provide evidence of you committing an offence, do you understand that?
A. Yes.
Q. SMITH Why did you go to Hampson's premises?
A. Well I ask your Honour to be excused to answer that question.
HIS HONOUR: Yes okay.
SMITH: Q. Do you agree that times that you attended Mr. Hampson's premises, you counted large sums of money?
HOWEN: Your Honour I object to that. I don't know whether my learned friend has actually been through the exercise of looking at the tapes but there is no proper basis for that question I submit, having been through the tapes extensively myself, it cannot be put as a proposition. If it's based on the tapes, it can't be put as a proposition. If it's not based on the tapes, it still needs to have a basis.
SMITH: I press the question.
HIS HONOUR: Yes I'll allow it.
SMITH: Q. Mr. Piras do you agree that at times when you attended Mr. Hampson's premises, you counted large sums of money?
A. I ask your Honour to be excused to answer that question.
HIS HONOUR: Yes.
SMITH Q Will you agree Mr. Piras that during a period in late 2002 you used money given to you by David Hampson to obtain heroin for Mr. Hampson?
A. I ask your Honour to be excused to answer this question.
HIS HONOUR: Yes.
SMITH Q, Would you agree with me Mr. Piras that during that period you purchased heroin for Mr. Hampson and delivered it to him?
A. I ask your Honour to be excused to answer this question.
HIS HONOUR: Yes.
SMITH: Q. Would you agree with me Mr. Piras that during early December 2002 at the request of David Hampson you obtained and delivered a quantity of heroin to him?
A. No.
Q. I suggest to you that the real reason behind this application is that you don't want to be deported, isn't that the case?
A. The reason of this application is because I didn't commit what I been accused of."
27 Of that evidence his Honour made these observations:
"Of course a person is entitled to decline to answer any question on the grounds that the answer might provide evidence of a criminal offence. However in an application such as this it is not, in my view, a sufficient approach to simply say in effect that "I am not guilty and wish to put the Crown to proof". The applicant needs to establish that there is a real question about his guilt. That has just not occurred in this case. Indeed, for the purposes of this application only, I would have thought that the court could regard Mr. Piras declining to answer the Crown's questions as some evidence of a lack of an innocent explanation for his behaviour depicted on the video tapes."
28 In my respectful opinion these conclusions were amply open to his Honour.
29 His Honour went on to advert to the detail of some further evidence, the purpose of which seemed to be a suggestion that evidence which had been obtained as a result of the execution of a search warrant at the applicant's place of residence should have been excluded because of some supposed defect in the execution of the warrant. His Honour observed in that connection:
"No attempt has been made to provide any evidence as to either the validity of the search warrant, the method of its execution or as to why the evidence gained as a result should, in the exercise of the court's discretion, be excluded."
30 In my respectful opinion these conclusions, also, were amply open to his Honour.
31 All of that being so, I am of the opinion that Ground 3a has not been made good.
32 As to Ground 3b, what has been said earlier in connection with Ground 3a is, in my view, equally applicable to Ground 3b. In addition, it was relevant for his Honour to have regard to the contents of the written instructions given by the applicant to his counsel on 21 June 2004. Those written instructions were in the following terms:
"1. I have been charged with supplying a commercial quantity of heroin between 17 November and 5 December 2002. The allegation contends that during this period I was a person who regularly supplied/sold (1 ounce) packages of heroin (for money in the vicinity of $10,000.00 per ounce) to a person David HAMPSON, who then broke that heroin down into smaller packages (0.1 gram and 0.2 gram deals) and on sold them.
2. I am aware that the Crown Prosecutor will now accept a plea of guilty to a charge of Supply Heroin (simplicita) in full satisfaction of the indictment and will withdraw the commercial quantity aspect of the indictment and (sic) as originally charged.
3. I have been informed by MY barrister that:-
· after viewing crown surveillance tape evidence depicting both myself, David Hampson and others; and
· in the knowledge that a witness Ms K. MULLER will give evidence against me; combined with the money found in my possession at the time of my arrest; and
· in the knowledge that there was 22 grams of heroin found in the possession of Mr. Hampson at the time of his arrest.
I am likely to be convicted of supplying a prohibited drug (heroin).
4. Despite having this explained to me by my barrister, I maintain my innocence and I therefore instruct my solicitor Mrs Janet Leary and my Barrister Mr. David Price to defend the charge against me by putting the Crown to strict proof in their attempt to prove their case against me.
5. It has been explained to me by my Barrister that if I am found guilty at trial then I will lose any benefit (reduction of penalty) of leniency that may have been afforded to me by entering a plea of guilty and I am if convicted I am likely to receive a substantially more lengthy term of imprisonment had I not entered a plea of guilty at this time to a reduced charge.
6. In the full knowledge of these facts I maintain my innocence to the charge against me"
33 His Honour was entitled, further, to take into account the agreed statement of facts which the applicant undoubtedly signed prior to the formal entering of his plea of guilty. That document reads:
" R v PIRAS - AGREED STATEMENT OF FACTS
CHARGED WITH: 1 Count of knowingly take part in the supply of Heroin.
On or about 18 November 2002 the offender Augusto Piras was contacted by the co-accused, Mr. David Hampson who renewed an old acquaintance with him.
Mr. Hampson told the offender that a person who had been supplying him with heroin was no longer able to do so and asked the offender to assist him in sourcing a new supply of heroin for him.
At this time the offender was using heroin from time to time with his Defacto partner Ms Roberta Egan, who was suffering from terminal cancer. Ms Roberta Egan was present when the offender was arrested at his apartment in Bondi but has since passed away.
After initially refusing to assist Hampson, the offender eventually agreed to assist him by contacting some people and sourcing some heroin on his behalf.
During the period between 22 November 2002 and 3 December 2002 the offender used money given to him by David Hampson to purchase 2 grams of heroin on behalf of Mr. Hampson for an amount of $800.00 which he delivered to Mr. Hampson.
Furthermore, in early December 2002 at the request of David Hampson, the offender sourced and delivered 28 grams of heroin to Hampson, using $9,000.00 given to him by Hampson.
During this period and as a result of these two transactions, the offender received approximately $600.00 in cash payments for himself for sourcing and delivering the heroin to Hampson.
The offender also kept a small amount of the drug on each occasion for his personal use."
34 In addition to the foregoing documents, his Honour had before him in evidence a pre-sentence report dated 20 August 2004. That report contains the following material:
" Attitude to the Offence
Regarding the offence, Mr. Piras agreed with police facts and expressed regret in relation to his involvement in this matter. He was candid about his reasons for becoming involved in the offence and attributed his behaviour to his own, and his partner's heroin addiction (at) the time. He reported that his partner used heroin for pain relief during her terminal illness, and that he was also using heroin as a way of coping with his own emotional stress. Mr. Piras indicated that he spent the profit he made from the offence to fund both his own and his partner's addiction. He also indicated that some of the money was spent on general living expenses and medical bills."
35 These were, on their face, clear-cut admissions against interest made by the applicant. His Honour was entitled, in my respectful opinion, to have regard to them accordingly.
36 The submissions of the Crown in connection with the present application put, and in my opinion correctly, that some of the things said on that occasion to the probation officer who was preparing the pre-sentence report do not appear in the statement of facts signed by the applicant. The Crown submits, and I agree, that it is open reasonably to infer that the reason for the discrepancy is that the applicant was telling the truth to the probation officer and was doing in that connection more than simply regurgitating agreed facts which he had been improperly pressured into accepting. Further and finally, his Honour made the following findings:
"I found Mr. Piras to be an unconvincing witness and his affidavit contains many areas of exaggeration. It seems to me that the real reason for wanting to reverse his plea lies in the fact that he is now an illegal non-citizen and that there are realistic prospects that if convicted, whether or not he receives a prison sentence, he would be deported. He was taken into immigration detention at court on 20 August 2004 and is currently on a criminal justice visa. His concerns about this situation were forcefully expressed in his letter of 3 October 2004, which I have referred to above."
37 The letter dated 3 October 2004 is a lengthy one and it is not practicable to quote it here in its entirety. Suffice it to say that I have read and considered the contents of the letter and I am of the opinion that those contents amply warrant the inferences which his Honour drew from that letter. In my opinion it was well open to his Honour to find that the appellant did not have a valid reason to reverse his plea of guilty.
38 Ground 3b has not been, in my opinion, made good.
39 As to Ground 3c, I am of the opinion that a simple and fair reading of the whole of his Honour's reasons cannot support this ground. His Honour saw and heard the applicant and did not accept the substance of the applicant's evidence where it differed from the evidence of Mr. Price and M/s Leary. It seems to me to be plain from a reading of his Honour's reasons that his Honour did assess the credit of Mr. Price and of M/s Leary and found them to be both truthful and reliable witnesses in connection with the matters of substance of which they respectively gave evidence.
40 In my opinion Ground 3c has not been made good.
41 As to Ground 3d, the short answer seems to me to be that those then representing the applicant both could and should have subpoenaed the Crown Prosecutor to attend the hearing before Judge Williams. The Crown Prosecutor having come to Court in answer to such a subpoena, it would have been proper for those then representing the applicant to have requested formally and in open Court that the Crown call the witness. Had the Crown refused to do so, then those representing the applicant could have called the witness and, if necessary, have applied for the witness to be cross-examined pursuant to section 38 of the Evidence Act 1995 (NSW). It is not controversial that none of those steps was taken. That being so, I do not agree that the primary Judge was obliged to draw the suggested inference.
42 In my opinion Ground 3d has not been made good.
43 As to Ground 3e, the real issue was not incompetence; the real issue tendered by the applicant was improper pressure. His Honour, having seen and heard the relevant witnesses, was not prepared to find that there had been any such improper pressure. I am unpersuaded that such a finding was not reasonably open to his Honour.
44 Before leaving the question of alleged incompetence, it is useful to note the following observations made by his Honour in his reasons:
"Counsel for Mr. Piras on this application has in my view approached this application from an incorrect point of view. A large amount of his cross examination of Mr. Price and Ms Leary was directed to their lack of preparation for the trial and what might be regarded as their incompetence. Whether or not the trial was properly prepared is not to the point in considering a plea entered after eight days of a voir dire during which the significant part of the Crown case was exposed. What is of relevance is what happened in the days immediately leading up to the plea occurring. Mr. Piras had eight days of sitting and watching the video evidence unfold in which to consider his position. He wasn't rushed from conference to court and a plea immediately entered. Despite that eight days and the almost two years that have elapsed since the plea was entered, nothing has been put before the court to explain or negative the evidence contained in the video material."
45 It is relevant to note in connection with the last three sentences in that quoted material that his Honour had earlier referred, (see page 3 of the Reasons), to the following matters, being matters which his Honour Judge Goldring thought fit to place on the Court record in connection with the applicant's plea of guilty:
"Now, I'm making the following remarks for the benefit of the sentencing judge. Both Mr. Hampson and Mr. Piras have pleaded guilty to the charges that are now before the Court. They were originally charged, both of them, with the offence of supplying a commercial quantity of heroin. There has been a voir dire that's lasted now for, I think, eight hearing days in the course of which a considerable part of the Crown case has been presented.
In the case of Mr. Piras, I ruled that the evidence was admissible and, in my view, it shows a strong Crown case in respect of the current changes although, in my view, it would have been difficult for a jury properly instructed to have convicted them of the offences of which they were originally charged. That may have been possible but it's more likely, in my view, that if that matter had proceeded, the trial judge, whether it be me or someone else, would have directed a verdict of not guilty because the evidence did not establish beyond reasonable doubt that there was a commercial quantity of heroin involved.
However, that evidence did disclose that both these offenders were involved in a fairly large-scale operation which involved the selling of heroin. I will say no more about what I saw because I have not seen the agreed facts. But it is important, I think, that what I have said should be before the Court when they come to be sentenced."
46 In my opinion Ground 3e has not been made good.