1 This is an application for review of the refusal by a judge of the County Court to certify, under s295(3) of the Criminal Procedure Act 2009, thereby enabling an application for leave to appeal against an interlocutory decision to proceed.

2 On 18 September 2013 the judge refused the applicant leave to change his plea of guilty to various charges of rape, sexual penetration and other offences involving indecency. She further refused to certify that the matter was one that met the requirements of s 295(3)(b) as being of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

3 There is potentially an issue to be resolved, not in this case, but in other proceedings, as to whether an attack upon the exercise of discretion by a judge who refuses leave to change a plea is capable of giving rise to an interlocutory appeal. The respondent did not take the point in this case, and it is, accordingly, unnecessary to say anything further about it in these reasons.

4 The applicant now seeks, pursuant to s 296 of the Act to have this Court review her Honour's decision to refuse certification.

1. The trial judge erred in law in refusing the application to change the pleas:

(a) Her Honour wrongly applied the High Court decision of Meissner v The Queen.[1]

(b) Her Honour erred in refusing the application to change the applicant's pleas of guilty as it appeared to her Honour that, for whatever reason, the applicant's pleas of guilty were not genuine.

1. The trial judge erred in the exercise of her discretion by refusing the application of the applicant to change his pleas:

(a) Her Honour failed to take into account the relevant consideration of the reasons the applicant entered his plea of guilty as not being a true admission of guilt.

(b) Her Honour failed to take into account the applicant's wish to change his plea of guilty to not guilty.

6 The application before this Court is supported by an affidavit affirmed by the applicant's solicitor on 23 September 2013. The affidavit establishes that the applicant was charged with these offences (and others) on 21 March 2012, and has been in custody continuously since that date.

7 The applicant pleaded guilty to the present offences at committal in March of this year. He was subsequently arraigned before his Honour Judge Taft in the County Court on 17 April and, adhered to his plea of guilty.

8 The solicitor deposes that thereafter the applicant began to have second thoughts. In the course of various conferences with his legal advisers, he equivocated regarding his earlier decision to plead guilty.

9 On 9 July new solicitors were retained. On 15 July the County Court was informed that the applicant now wished to change his plea. Accordingly, a change of plea application was fixed for hearing on 19 August.

10 Ultimately that application ran for four days. The applicant's former instructing solicitor and counsel both gave evidence. The applicant also testified. The applicant does not challenge her Honour's findings of fact arising out of that hearing.

11 The judge accepted that the applicant had pleaded guilty in the belief that he would receive a 'substantial discount' by doing so. Her Honour found that, in his own mind, that meant that he would serve no more than a further one to two years, after taking into account his period of pre-sentence detention. She further found that the applicant's belief was not brought about by anything said by his former legal advisers. Indeed, they had assiduously avoided quoting any figures to him - only making it clear that a plea of guilty would, of itself, attract a significant discount.

12 The applicant argues that his plea, having been entered under a misconception on his part as to the benefit that he would gain, could not be taken as a genuine admission of guilt. He refers, in support of that submission, to the following observation by Dawson and McHugh JJ in Maxwell v The Queen:[2]

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. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered.

13 The applicant submits that, in the light of that passage, he should be entitled, as of right, to change his plea. Indeed he goes further. He submits that the judge was bound, of her own motion, to direct that a not guilty plea be entered.

14 The judge delivered a careful ruling on this point. She outlined clearly why a plea, even if made solely for pragmatic reasons, and only in the hope of gaining a significant sentencing discount, can, nonetheless, be regarded as a valid and binding admission of guilt.

15 Her Honour noted that it is well settled law that a court has a discretion to grant leave to an accused person to change his or her plea from guilty to not guilty where there would otherwise be a miscarriage of justice, citing R v Middap[3] as authority for that proposition. She noted further that the onus rested upon the accused, in any such application to justify being permitted to change his or her plea. She added that leave would only be granted in rare and exceptional circumstances.[4]

16 Counsel for the applicant submitted that because his client had pleaded guilty purely in order to obtain a sentencing discount, the judge was bound to find that the plea was not genuine, and did not involve a 'true admission of guilt'. He further submitted that the applicant's self-induced error as to what sentence he would receive on a plea of guilty meant that there would be a miscarriage of justice if he were not granted leave to resile from his plea.

17 The passage from the joint judgment of Dawson and McHugh JJ in Maxwell upon which counsel relied must of course be read in context. What their Honours said had nothing whatever to do with the principles that govern the discretion to permit an accused to change his or her plea. Their remarks seem to me, rather, to have been directed towards the situation that arises from time to time whereby the plea that is offered is qualified in such a way that it effectively amounts to a traversal of a plea of guilty.

18 More to the point, perhaps, was what the High Court had said in Meissner. That case too did not involve an application to resile from a plea of guilty. Rather, it concerned the circumstances in which the act of inducing a plea of guilty could be viewed as an attempt to pervert the course of justice. Nonetheless, Meissner seems to me to be particularly relevant to the issues raised by the applicant in this proceeding.

19 In Meissner, Dawson J (who dissented in the ultimate result, but not on this particular point) said at page 157:

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. 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 did not understand the nature of the charge or did 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.

20 The passage set out above, though dicta, is directly in point.

21 The judge below found that the evidence given by the applicant's former legal advisers as to how he came to the decision to plead guilty at committal, and to adhere to that plea on arraignment, was compelling. The applicant signed a document, prepared by his former lawyers, which made it abundantly clear that he had been fully informed as to the benefits he might stand to gain by pleading guilty at an early stage. He was warned, in terms, that the quantum of discount available could not be predicted with any certainty. All that could be said was that the sentence he ultimately received would be substantially lower than would be the case if he stood trial and was convicted.

22 I should interpolate that the offences for which the applicant stands to be sentenced are, in my view, of the utmost gravity. They involve multiple victims, some of them particularly vulnerable. It would be entirely fatuous to think that when sentenced for those offences, the applicant might only have to serve an additional one to two years. No competent lawyer could possibly have proffered that advice.

23 I note further that the applicant, who has himself, sworn an affidavit in this proceeding, has provided a great many reasons as to why he should be permitted now to change his plea. These range from his mental state at the time, to various obligations that he said he felt towards his family back in India. Notably, however, there was one thing that was not said. The applicant has not denied having committed these offences.

24 This Court will not lightly overturn a decision by a judge below to refuse to certify for an interlocutory appeal. The reasons are obvious. While it is true that such appeals may be of considerable utility in some cases, they necessarily involve an element of fragmentation of the criminal justice process. Such fragmentation is almost always, of itself, undesirable and contrary to the public interest.

25 In this case the judge refused to certify because she considered that none of the points raised by the applicant were reasonably arguable. It followed that they had no real prospects of success. In my opinion, her Honour was entirely correct in arriving at that conclusion.

26 In my opinion, the applicant's arguments rest upon a misconception as to the reasoning in both Maxwell and Meissner. There was no basis upon which the judge could properly have granted him leave to change his plea and no reason whatever for her Honour to have certified.

27 I would accordingly dismiss this application for review.

[1] [1995] HCA 41; (1995) 184 CLR 132 ('Meissner').

[2] [1996] HCA 46; (1996) 184 CLR 501, 511 ('Maxwell').

[3] (1989) 43 A Crim R 362.

[4] R v Sivov [2008] VSCA 100.