The appellant's appeal against his conviction
18 Only one ground of appeal is advanced with respect to the appellant's conviction. It is in the following terms:
"The conviction of the appellant for the offence of supplying a large commercial quantity of cocaine was a miscarriage of justice in that his plea of guilty was entered under a belief as to the law applicable to the case against him which was subsequently overturned."
19 Count 1 to which the appellant pleaded guilty covered two discrete occasions although they were treated as part of one continuing enterprise in accordance with the decision of this Court in Hamzy v R (1994) 74 A Crim R 341. The first occasion related to the supply of 1kg of cocaine by Tom to the appellant on 28 February 2005. The second related to the supply by Jabour to Sevastopoulos of 496g of cocaine to which the appellant was a party. Only the first occasion was the subject of a controlled operation authority.
20 The essence of the appellant's challenge to his conviction is that he had first pleaded guilty on 27 July 2007 upon the assumption that the Authority which related to the supply of cocaine on 28 February 2005 was valid as Hall J had so held with respect to the Gedeon and Dowe authorities. In this respect, in an affidavit sworn 23 October 2008 and read to the Court, the appellant relevantly deposed to the following:
"2. On 27 July 2007 I pleaded guilty to supplying a large commercial quantity of a prohibited drug, being cocaine and another matter.
3. I was aware that two of my co-accused had challenged the validity of the controlled operations but that the Supreme Court had dismissed their applications.
4. I was aware that the co-accused were going to appeal but my trial was due to start on 30 July 2007. I pleaded guilty after advice from my legal representatives. I was advised that if the appeal was successful I could appeal later and there was no point in trying to get the trial adjourned.
5. I believed that the evidence was properly obtained and could be used in my trial. I would not have pleaded guilty had the Supreme Court declared the controlled operation invalid."
21 The appellant therefore submitted that had he gone to trial on the basis of the law as expounded by the High Court, which declared the Gedeon and Dowe authorities invalid, the trial judge would have been required to have regard to s 138 of the Evidence Act 1995 to determine whether, notwithstanding the unlawful conduct of the law enforcement authorities in supplying Tom with 1kg of cocaine and the subsequent unlawful supply by Tom of that kilogram of cocaine to the appellant, the relevant evidence of the controlled activities should, as a matter of discretion, have been admitted.
22 The appellant therefore submitted that he had entered his plea of guilty to Count 1 under a misapprehension with respect to the state of the law relating to the validity of the Authority. Due to the change in the law effected by the High Court's subsequent enunciation of the Authority's invalidity, it followed that his plea was tainted and was not a free and voluntary confession. Reliance was placed upon the decision of this Court in R v Chiron (1980) 1 NSWLR 218, although it was accepted that the present case was not on all fours with the facts of that case.
23 In Chiron the appellant went to trial on a charge of rape. Over objection the trial judge decided to admit certain similar fact evidence. Following that decision Chiron changed his plea to guilty. By majority the Court of Criminal Appeal held that the decision to admit the similar fact evidence was erroneous and that if the trial had proceeded to conviction, that conviction would have been set aside and a new trial ordered. As Chiron had pleaded guilty, the question arose as to whether, notwithstanding that plea, the conviction nevertheless should be set aside.
24 Street CJ (at 220) noted Chiron's counsel's professional assessment of the effect the admission of the similar fact evidence had upon the outcome of the trial, namely that in the light of its admission, he did not consider that he could successfully defend Chiron on the subject charge. His Honour also referred to Chiron being oppressed by the significance that he attached to a comment made by the trial judge during the course of argument - that admission of the evidence of similar facts would be "sudden death" to his chances of acquittal. The Chief Justice then said:
"(4) The evidence called on the hearing of the appeal leaves no room for doubt but that the erroneous decision to admit evidence of similar facts, with the consequential significance attaching to it in the mind of the appellant as a result of his counsel's expression of opinion and the trial judge's reference to 'sudden death', was the predominating factor which lead to the appellant changing his plea, and thus admitting guilt of the crime charged against him.
(5) In the foregoing context, the admission of guilt involved in the change of plea to 'guilty' must be regarded as tainted. It was not a free and voluntary confession. It was not properly available to the jury as a basis for returning the verdict of guilty."
25 Nagle CJ at CL agreed with the Chief Justice holding (at 222) that in the circumstances he found it impossible to say that there had been no miscarriage of justice within the meaning of s 6 of the Criminal Appeal Act 1912.
26 Lee J agreed with the majority that the trial judge's decision to admit the similar fact evidence was erroneous. However, he dissented from the majority that there had been a miscarriage of justice such as to attract the appellate jurisdiction of the Court. However at 235 his Honour accepted that a plea of guilty would be allowed to be withdrawn on appeal if there had been a miscarriage of justice. His Honour then went on to refer to the circumstances in which a court would set aside a conviction notwithstanding that it followed a plea of guilty. He referred (at 235 [73]) to the decision in R v Forde [1923] 2 KB 400 that identified two grounds upon which a plea of guilty might be permitted to be withdrawn on appeal. The first was where the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it. The second was where, upon the admitted facts, the appellant could not in law have been convicted of the offence charged.
27 His Honour then referred to other authorities that held that the principles formulated in Forde should not be regarded as exhaustive of all possible cases of miscarriage of justice. It did not cover, for example, cases where an accused person against whom a prima facie case existed but who had never admitted his guilt, is induced by threats of a fellow accused, or a police officer, to plead guilty where otherwise he would have pleaded not guilty: R v Murphy [1965] VR 187 at 190 per Sholl J.
28 His Honour then made the following observations (at 235):
"(76) In Ansell v The Queen Gibson J, delivering the judgment of the court said: 'An appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances ( Pilkington v The Queen (1955) Tas SR 144).'
(77) His Honour referred to R v Forde and went on: 'But if the appellant can satisfy the court that he had been the victim of a miscarriage of justice in any other way he is entitled to succeed in his appeal ( R v Murphy ). Thus, a plea of guilty procured by fraud could not stand, and such a plea of procured by an improper inducement might also be vitiated by the manner in which it was brought about. Pilkington v the Queen ."
29 The appellant also placed reliance upon the decision of this Court in Sauer v R [2006] NSWCCA 81 at [8] where the circumstances referred to in the authorities pursuant to which a conviction based on a plea of guilty would be set aside, were summarised. Those circumstances included that referred to in R v Sagiv (1986) 22 A Crim R 73 at 80, namely, where there had been a "mistake or other circumstance affecting the integrity of the plea as an admission of guilt". Thus in Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 511, Dawson and McHugh JJ observed:
"The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage."
30 Particular reliance was placed by the appellant upon the following statement of Dawson J in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157:
"The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused does not understand the nature of the charge or does not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud." (emphasis added)
31 In the light of the foregoing authorities it was submitted that although the present was not a case that fell within the various examples of a miscarriage of justice to which the authorities referred, nonetheless there was no restraint upon the circumstances in which a miscarriage of justice could be demonstrated. It was thus submitted that in the present case there was a miscarriage because the appellant had only pleaded guilty because he understood that he could not challenge the validity of the Authority pursuant to which Tom supplied the heroin to the appellant.
32 It is important to note that the appellant does not dispute the facts that constitute the foundation of the offence with which he was charged. In other words, he does not deny that Tom supplied him with 1kg of cocaine. Had he pleaded not guilty his only defence would have been to seek the exclusion of the evidence of the controlled activities pursuant to s 138 on the basis that it was unlawfully obtained in contravention of an Australian law. Accordingly, there can be no doubt that there was a genuine recognition of guilt on the part of the appellant when he entered his plea. In other words, his guilt was undisputed: the miscarriage of justice, so it is submitted, was the denial of an opportunity to have the evidence of his guilt excluded.
33 In R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, Spigelman CJ at [21], with whom Newman and Adams JJ agreed, referred with approval to the formulation by Sholl J in R v Murphy of the appropriate test of when there would be a miscarriage of justice justifying the withdrawal of a plea of guilty, namely,
"…for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilty …"
34 To similar effect, the Chief Justice noted (at [22]), were the observations of Lee J (with whom McInerney and Campbell JJ agreed) in Sagivat 80, who applied a test of
"mistake or other circumstances affecting the integrity of the plea as an admission of guilt …".
35 On the other hand, as Lee J observed in Sagiv (at 80-81) in the context of an application to withdraw a plea of guilty:
"But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence … and as the most cogent admission of guilt that can be made …"
36 Both Murphy and Sagiv were referred to with approval in this Court in Davies (Court of Criminal Appeal, 16 December 1993, unreported) by Badgery-Parker J, with whom Wood and Mathews JJ agreed and which, the Chief Justice said in Toro-Martinez (at [26]) has frequently been referred to with approval. Badgery-Parker J concluded:
"The appellant's submission that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv ) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Sholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J 'an issuable question of guilt'- to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."
37 The Chief Justice then continued (at [27]) as follows:
"27. … This Court will only permit an appeal against conviction after a plea of guilty, to reiterate Davies: '… if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused … '
28 …in the present case no attempt has been made suggest that the appellant might not be guilty. The case for the appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty."
38 In R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229, Greg James J, with the agreement of Hodgson JA and Kirby J, adopted (at [48]) the following summary by the applicant in his submissions taken from the judgment of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]-[33] of the relevant circumstances justifying the setting aside of a conviction based on a plea of guilty: