Inspector Nikolovski v Lankry

Judgment 1The defendant, Alex Avi Lankry, moves the Court by way of Notice of Motion for the following orders:

1. The (sic - That) a plea be taken from the Applicant (defendant) in relation to the charges against him in these proceedings IC 1847 of 2008 and IC 1848 of 2008 as those charges have been amended following a Notice of Motion filed by the Respondent on 13 May 2011 and heard by this Honourable Court on 27 June 2011.
2. In the alternative to 1 above, leave be given to the Applicant to withdraw pleas of guilty in two charges brought against him in proceedings IC 1847 of 2008 and IC 1848 of 2008. 2The application follows an earlier Notice of Motion filed by the prosecutor in which leave was sought to amend the two charges. The Court granted leave to amend and at the same time gave a short statement of reasons. 3The prosecutor's Notice of Motion followed an earlier Notice of Motion filed by the defendant in which he sought to withdraw his pleas of guilty to the two charges in their unamended form (the original charges). The Court dismissed that application: Inspector Steven Nikolovski v Alex Avi Lankry [2011] NSWIRComm 34; Inspector Steven Nikolovski v Lankry (2011) 206 IR 395. 4It was as a result of certain observations and findings I made in Lankry that the prosecutor filed his Notice of Motion seeking to amend both charges. Those observations and findings were summarised at [52] of the judgment, extracted below: Conclusions with regard to sufficiency of particulars in the charges Both charges are valid charges. The legal elements are present in both charges. They allege with sufficient particularity the measures relied upon, with the exceptions of particular (b)(i) of the s 10(1)/s 26(1) charge and particular (c)(i) of the s 8(2)/s 26(1) charge. At this stage of the proceedings, the defects are curable: John Holland (Court of Appeal) at [41]-[45]. With regard to particular (b) of the s 8(2)/s 26(1) charge some further particularisation of the risk to safety should perhaps be provided. Further information should be supplied to the defendant with regard to those non-employees alleged to be placed at risk, if any, in addition to Mr Bowden. What constitutes an "adequate" plan alleged in sub-particular (b)(i) of the s 8(2)/s 26(1) charge should also be the subject of further particulars. Further particularisation of the allegation of the corporation's control in both charges should also be provided. 5After the Court granted leave to the prosecutor to file amended charges, the matters were set down for sentence hearings. This was done on the basis that the defendant had earlier entered pleas of guilty to the original charges. 6According to the defendant what should have happened is that he should have been asked if he adhered to his pleas of guilty. Two bases for the submission were advanced. These were first that the amendments to both charges resulted in, "significant changes to the factual elements set out in the particulars ..."; and, secondly, that the defects in the original charges identified by the Court would have led to, "invalidity of the charges had not the defects been cured". Reliance for this latter proposition was placed on the majority judgment of the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531. 7Dealing first with the latter proposition, it is the Court's view that in the circumstances of this case, Kirk does not support it. In Lankry at [27] to [29] I said: [27] The failure to plead, or to plead adequately, in a charge the defendant's acts or omissions does not necessitate the conclusion that the charge is invalid. Rather, the defect is curable if a statutory provision exists to cure it: see, for example, John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 521-522; Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 667; John Holland (Full Court) at [72]-[74]; Morrison v Chevalley at [55(i)], [56(b)-(d)] and [133]. [28] There are strong suggestions in the majority judgment in Kirk to similar effect. At [30], for example, the majority said: ..., it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller [38] where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. [29] Again, at [74], the majority found that the Court at first instance had no power to convict and sentence Mr Kirk and his company because, "no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence". 8In the present proceedings, this Court indicated that the original charges alleged with "sufficient particularity" the measures relied upon, "with the exceptions of particular (b)(i) of the s 10(1)/s 26(1) charge and particular (c)(i) of the s 8(2)/s 26(1) charge": at [52]. Sub-particular (b)(i) of the s 10(1)/s 26(1) charge in its original form alleged: (b) The corporation failed to ensure that systems of work and the working environment at the premises, in particular the masonry block wall constructed on the southern edge of the concrete slab of level 1 of the premises, facing Thornleigh Street, were safe and without risk to health, in that: (i) it failed to ensure that adequate measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall that was under construction on Level 1 and in a temporary state of weakness; 9Sub-particular (c)(i) of the s 8(2)/s 26(1) charge in its original form, alleged: (c) The corporation failed to ensure that premises controlled by it, namely the masonry block wall constructed on the southern edge of the concrete slab of level 1 of the site, facing Thornleigh Street, where persons other than its employees worked, were safe and without risk to health, in that the corporation: (i) failed to ensure that adequate measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall that was under construction on Level 1 and in a temporary state of weakness; 10Particular (b) of the s 10(1)/s 26(1) charge and particular (c) of the s 8(2)(1)/s 26(1) charge were supported by several sub-particulars (see Lankry at [4] and [6]), but only the first sub-particulars (that is, (b)(i) and (c)(i)) were found to suffer a defect which this Court suggested was capable of remedy by the provision of "some further particulars ... to clarify what 'adequate measures' it is alleged the corporate defendant did not take": Lankry at [34] and [48]. In accordance with orthodox principles (and consistent with the Court's findings in Lankry at [52]) the prosecutor only has to prove one particular beyond reasonable doubt (for example, particular (b)(ii) of the s 10(i)/s 26(1) charge) in order to support a conviction: see, for example, Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 LGERA 361; 98 A Crim R 481 at 484; WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Constructions Pty Ltd [2005] NSWIRComm 454; (2005) 147 IR 329 at [11] [12]; St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (No 2) [2007] NSWIRComm 150; (2007) 164 IR 356 at [16]. 11The defendant's primary contention in the present application was that he should have been asked either to enter a plea to the amended charges, or to confirm whether he adhered to his pleas of guilty to the original charges, or, in the alternative, that he should be permitted to withdraw his pleas of guilty. It was said in developing the contention that the amendments (to the factual elements) were significant or resulted in "significant changes" such that the defendant was not in possession of all the relevant facts at the time he pleaded guilty to the original charges. A secondary effect of this contention, if accepted, was that if the defendant did not have all the facts at his disposal at the time he entered his pleas of guilty to the original charges, the principle in Shimon Amuzig Sagiv v R (1986) 22 A Crim R 73, with regard to the Court's discretion in deciding whether to permit a defendant to withdraw a plea of guilty has no application. This principle was articulated by the defendant in the following way: There is a general proposition as to discretion in relation to a withdrawal of a plea of guilty that each case must be determined according to what is required by the interests of justice. If a person is in possession of all of the facts and makes an admission of guilt, the Court may exercise any discretion unfavourably to the accused seeking leave to withdraw the plea (see Sagiv v R (1986) 22 A Crim R 23) ("Sagiv"). However this principle has no application in this case. On the finding of the Court on 31 March 2011, the Defendant was not in possession of all the relevant facts provided by way of particulars. Secondly and more importantly, the failure to particularise went beyond the significance in an ordinary criminal case and would have led, unless cured, to the invalidity of the charges and the failure of the prosecution. 12In the Court's view, the principle in Sagiv, as articulated by the defendant, provides no support for this aspect of the defendant's case. In Sagiv, the appellant pleaded guilty to two charges under s 233B(1)(b) of the Customs Act 1901 (Cth) of importing prohibited imports, namely cocaine, and one charge of being in possession of prohibited imports, namely, cocaine under s 233(1)(c) of that Act. Subsequently, the appellant sought to withdraw his pleas of guilty on the ground that he had not known that the "goods" being imported, and of which he allegedly had possession, comprised a quantity of cocaine. Instead, the appellant asserted that he believed that the substance imported was gold. The judge at first instance in exercising his discretion against giving leave to withdraw the pleas of guilty did not believe the appellant's assertion that the substance in question (the "goods") was gold. One basis for not believing the appellant was that he had admitted on an earlier occasion that he knew the substance was cocaine. 13The Court of Criminal Appeal found that the judge at first instance had not erred in the exercise of his discretion in refusing to permit the appellant to withdraw his plea. During the course of deliberations, Lee J, with whom McInerney and Campbell JJ agreed, referred to a number of cases where applications had been made to withdraw a plea of guilty before conviction and stated (at 80, 81): The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. 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 (O'Neill [1979] 2 NSWLR 582; 1 ACrimR 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. 14A schedule to the Customs Act defined prohibited imports as "narcotic goods". Although cocaine fell within the classification, clearly gold did not. Had the presiding judge been persuaded by the appellant's later version that he believed the substance was gold, this may have resulted in an exercise of discretion in his favour with the result that the appellant may have gone to trial and may have been acquitted of the offences because the Crown would have failed to prove to the requisite standard a legal element of the offences (and see Lee J's discussion of this issue at 82). 15The present application has proceeded upon a very different basis. There was no issue on the present application that the legal elements of the charges were properly pleaded, this Court had jurisdiction to deal with the charges and, the amended charges were valid. The issue under consideration here is whether the amendments were significant such that the Court should exercise its discretion in the defendant's favour and permit him to withdraw his pleas of guilty. However, a long line of judicial authority (including Sagiv in the passage extracted above) has sought to emphasise that a plea of guilty is a plea to the legal elements of a charge, in genuine recognition of guilt, with the intention to plead guilty, that is, in the exercise of a free choice without pressure and/or threats, or mistake which might otherwise affect the integrity of the plea. None of these matters have been raised by the defendant as issues in the present application. The legal elements are already present in the charges. The amendments sought to provide further particularisation of those legal elements. 16In a passage from R v O'Neill (1979) 2 NSWLR 582 often quoted on the subject, Moffit A.C.J said the following: I think three elemental matters can be stated. First a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied on by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused. 17The authorities also emphasise that the central question in the exercise of a discretion to permit or refuse an application to withdraw a plea of guilty is whether the plea was not really attributable to a consciousness of guilt. Thus in Regina v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337, Simpson J said (at [4]): [4] The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481. (and see Lankry at [67]). 18Nor can it be seriously contended by the defendant that he is not in possession of all the relevant facts, having been served with the prosecution's brief of evidence prior to entering the pleas of guilty: Lankry at [62]. 19The defendant also placed reliance on Kirby P's judgment in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599 where Kirby P said: The entitlement of a person who has pleaded guilty to withdraw such a plea before conviction (and even on appeal) at any time before final sentence is pronounced is not in doubt: see R v Foley (1962) 80 WN (NSW) 726 at 727; [1963] NSWR 1270 at 1271-1272; applying R v Plummer [1902] 2 KB C 339; R v McNally [1954] 1 WLR 933; [1954] 2 All ER 372 and Ex parte Stanton (1928) 28 SR (NSW) 516; 45 WN (NSW) 118; see also R v Sagiv (1986) 22 A Crim R 73 at 80 and cases there cited. The entitlement of the accused who is asked to plead normally extends to an entitlement to know the facts alleged against him or how those facts will be reflected in proof of the charge. If those facts are presented in a way different from that agreed between the prosecutor and the accused, justice will usually require that the accused should be allowed to change an earlier plea: see Stanton v Dawson D (1987) 31 A Crim R 104. It is within the discretion of the presiding judicial officer to decide whether a plea of guilty may be withdrawn. That discretion must be exercised judicially. If the plea has been entered as a result of a mistake or "other circumstances affecting the integrity of the plea as an admission of guilt", courts will readily grant leave to withdraw the plea. Where, as in this case, the plea was apparently proffered upon an understanding between the prosecutor and the claimant which the judge did E not accept, it might be expected that leave would be given to withdraw the plea and to require the matter to proceed to trial as a contest. However, that would be a matter to be decided, in the first instance, by the primary judge. At the time these proceedings were adjourned before Ducker DCJ and brought up to this Court by summons, no formal application had been made on the part of the claimant to change his plea. Having regard to this fact, it is premature to provide a declaration in the terms sought by the claimant. 20In Chow in the Court below, the accused agreed with the prosecution to plead guilty to a lesser charge as part of a "plea bargaining" procedure. When the matter came before the sentencing judge, his Honour questioned the propriety of the lesser charge and sought and accepted the tender by the prosecution of committal depositions over the accused's objections. The depositions revealed a more serious offence than the offence to which the accused had pleaded guilty. Before the sentence proceedings were completed, the accused sought declaratory relief in the Court of Appeal on a number of grounds which included that a reasonable apprehension of bias on the part of the sentencing judge had been established. At that stage, the accused had not made an application before the sentencing judge to withdraw his plea of guilty. 21In the course of reasons, Kirby P referred to the principles relevant to a plea of guilty and the relevance of any additional facts sought to be tendered by the prosecution on sentence which go beyond the facts contained in the plea (at 605): Where an accused person has pleaded guilty, he or she is thereby taken to have admitted to guilt of the offence as charged "and nothing more": see R v Riley [1896] 1 QB 309. In this State, that principle has been extended to an acceptance that the plea is to be taken as an admission of the "essential legal ingredients of the offence". Any dispute as to matters beyond such "essential ingredients" admitted by the plea, must be resolved by the application of ordinary legal principles appropriate to a criminal trial. There is not in this State a special statutory provision governing the reception of matters relevant to sentence, as there is in Queensland (see s 650 of the C Criminal Code (Qld) and R v Clayton [1989] 2 Qd R 439 at 441-442) and in Tasmania (see s 386 of the Criminal Code (Tas)). In this State, disputed facts must be established by accusatorial process; proved by sworn evidence and any doubt about them must be resolved in favour of the prisoner: see R v O'Neill [1979] 2 NSWLR 582 at 590; R v Traiconi (1990) 49 A Crim R 417 at 418; Thompson v The Queen [1973] Tas SR 78 at 91. In New South Wales, the standard established in R v O'Neill is admittedly a stringent one. D It is, in some respects, more stringent than that in England or in Canada (see R v Gardiner [1982] 2 SCR 368 or in Victoria (see R v Halden (1983) 9 A Crim R 30 at 34) or in Queensland (see R v Cattell (1990) 49 A Crim R 412). However, it is long established and repeatedly applied in this State. And in my view it is correct in principle. To go beyond the facts necessarily contained in the plea requires that any additional facts be admitted expressly or proved by admissible evidence: see R v Scanlan (1986) 21 A Crim R 428 E at 432. This requirement must be observed because it is of the highest importance and "despite whatever inconvenience may be caused": see Bray CJ in Law v Deed [1970] SASR 374 at 377. The rule applies as much to a case where the accused has pleaded guilty as to one where it is necessary for the sentencing judge to derive the conclusions of fact from a jury's verdict of guilty following contested trial: see R v Mordecai (1985) 18 A Crim R 149. 22Given the issues which confronted the Court of Appeal in Chow, it may be readily discerned that the present application is distinguishable. Kirby P, in conformance with the authorities, emphasised that a plea of guilty constitutes an admission of the legal elements of the offence. As his Honour made clear in the passage cited above, any dispute on sentence regarding factual matters, which includes those facts which are additional to the plea must be resolved in the usual way, that is, they are either conceded or must be proved by admissible evidence. Here, the Court is not dealing with evidence (additional or otherwise) sought to be adduced on sentence. Nor, insofar as the Court is aware, have the parties reached agreement on a Statement of Facts to be presented on sentence. The present application concerns only the amended charges which contain additional particularisation of allegations pleaded in those charges, which are relied upon by the prosecution as providing further clarification of those matters. 23Another way in which the defendant sought to develop his primary contention was by placing reliance on the High Court's judgment in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 as applicable to criminal proceedings, including the present proceedings. The analogy sought to be posited, as the Court understood it, was that here the pleas to the original charges were entered in circumstances where the defendant was denied procedural fairness. This denial of procedural fairness arose, or arises, because the prosecution conceded that the amendments to the original charges were made in order to afford the defendant procedural fairness. In these circumstances, the pleas of guilty are "nullities". 24It is difficult to see how Bhardwaj provides any assistance to the defendant. The Court's attention was not directed to any passage from Bhardwaj upon which the defendant sought to rely. In Bhardwaj the respondent had applied to the Tribunal against a decision by a delegate of the appellant to cancel his student visa. As events transpired, he was not afforded an opportunity to be heard by the Tribunal at the first hearing of his application which was contrary to s 360 of the Migration Act 1958 (Cth). Accordingly, the respondent at that stage had been denied procedural fairness: Gleeson CJ at [14]; Gaudron and Gummow JJ at [40] and [44]. In the absence of any further submissions, the Court is unable to discern any analogy between the facts in Bhardwaj and the facts in the present application which might invoke the application of the principle of procedural fairness, held to apply in Bhardwaj, in the present proceedings. 25The defendant also sought to rely on R v Ronald George Radley (1974) 58 Cr App R 394 for the propositions that in arraignment cases there should be a second arraignment whenever an amendment is made which introduces a different element into the trial; and, if the judge is in any doubt on the point there should be a second arraignment. Support for these propositions was said to be found in a particular passage of the judgment where the Lord Chief Justice said (at 404): It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendments of any real significance are made. It may be that in cases like Harden (supra) where amendments are very slight and cannot really be regarded as in any way introducing a new element into the trial a second arraignment is not required, but judges in doubt on this point will be well advised to direct a second arraignment. 26There are features in Radley which, taken together, do not support the defendant's primary contention which is that following the filing of the amended charges he should have been asked if he adhered to his pleas of guilty, that is, he should have been re-arrainged, in the context of summary proceedings. First, it is apparent from the facts in Radley that the Crown sought to amend the indictment after the trial had commenced before a jury. Secondly, the passage relied upon by the defendant, extracted above appears to be authority for the proposition that even if the amendment sought is of a "substantial character" after the trial has begun it is not necessary that an accused by re-arraigned, although it is "highly desirable". 27There is nothing in Radley which supports a proposition that a defective indictment, amended after the trial has commenced, requires that an accused person be re-arrainged. In fact, the contrary proposition appears, subject only to the necessity to consider whether in making the application to amend after the trial has commenced the accused might suffer an injustice (at 403 to 404). None of these considerations have any impact on the present set of circumstances where the sentence proceedings have not commenced and the defendant has not pointed to any relevant injustice or prejudice that might be occasioned to him by reason of amendments which have been made at an early stage of the proceedings. Moreover, the amendments made did not seek to add to or substitute any legal elements in the charges, they merely provided further particularisation of those elements which were already present in the charges. 28One further matter should be mentioned before leaving this issue. The defendant, in written submissions, contended that the particulars of the original charge (presumably under s 8(2)/s 26(1)) did not specify that the defendant was an employer, and that this element was inserted into the charge by way of amendment. A perusal of the original charge indicates that is not correct. On the first page of the original charge, it is alleged that the corporation, of which the defendant is alleged to be a person concerned in management, was, "an employer". 29For all the foregoing reasons, the defendant's Notice of Motion must be dismissed. 30The Court proposes to set both matters down for a directions hearing in order to set dates for sentence. Consistent with orders made by the Court on 5 December 2011, the two related matters, involving corporate defendants, Sydney Metro Projects Pty Ltd and Domain Group Services Pty Ltd, will also be set down for a directions hearing.