Kumar v The Queen [2014] VSCA 102

CRIMINAL PROCEDURE - Plea - Whether judge erred in not accepting change to plea of guilty prior to sentencing - Whether guilty plea a true admission of guilt - Whether plea not true admission of guilt because entered in hope or with expectation of 'technical advantage' - Need for evidence to establish that guilty plea not true admission of guilt - Interlocutory appeal - Whether review of refusal to certify 'an appeal' for purposes of s 297(3) of Criminal Procedure Act 2009 - No error shown - Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501; Meissner v The Queen [1995] HCA 41; (1994) 184 CLR 132, referred to - Criminal Procedure Act 2009 s 297(3).

1 This is a renewal of an application for extension of time in which to apply for leave to appeal against conviction of eight charges of rape, one charge of sexual penetration by a worker at a facility of a person with a cognitive impairment, one charge of indecent act by a worker at a facility of a person with a cognitive impairment and one charge of indecent assault.

2 The applicant was charged with those offences on 21 March 2012 and has been in custody ever since. A contested committal hearing began on 4 March 2013 and ran for four days. At the conclusion of the hearing, he pleaded guilty to all charges. On 17 April 2013, he was arraigned before a judge of the County Court and pleaded guilty to all charges on the indictment.

3 Subsequently, during the course of conferences with his legal advisers, he began to have second thoughts about his plea and, consequently, on 9 May 2013, he appointed his present solicitors in place of his previous solicitors. On 15 July 2013, his present solicitors notified the County Court that he wished to withdraw his plea and plead not guilty to all charges.

4 A change of plea hearing was held before a judge of the County Court over four days beginning on 19 August 2013. During the course of that hearing, the applicant and his previous legal advisers all gave evidence. On 18 September 2013, the judge ruled that the applicant be refused leave to withdraw his plea and her Honour published her reasons. She refused to certify that her ruling was of sufficient importance to justify an interlocutory appeal.[1]

5 The applicant then applied to this court for review of the judge's decision to refuse to certify but, on 18 October 2013, the court dismissed the application.[2] Weinberg JA, with whom Coghlan JA and Lasry AJA agreed, held that, given the facts of the matter, there was no basis on which the judge could properly have granted the applicant leave to change his plea and no reason for her Honour to certify.[3]

6 Following a plea in mitigation of penalty, on 20 November 2013, the applicant was sentenced by another judge of the County Court to a total effective sentence of 18 years' imprisonment with a non-parole period of 15 years.

7 On 23 January 2014, the applicant's present solicitors filed an application for leave to apply out of time for leave to appeal against conviction. On 17 February 2014, the Registrar gave notice to the solicitors that he refused the application. On 20 February 2014, the applicant's solicitors filed a Notice of Election to renew the application. Thus, the matter now comes before this court.

8 The principles which govern an application for extension of time in which to apply for leave to appeal were distilled by Gowans J in the judgment of the Court of Criminal Appeal in R v John Edward Darby,[4] as follows:

(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.

9 In this matter, the reasons for delay are set out in an affidavit of Andrew Benjamin Zingler of the applicant's solicitors sworn 22 January 2014 in support of the application. In case this matter goes further, we should say that we regard the affidavit as providing a reasonably satisfactory account of the applicant's failure to comply with the time limit for seeking leave to appeal.

10 We are not persuaded, however, that there are such merits in the proposed appeal that it would probably succeed. The arguments[5] advanced in support of the application are in effect identical to those which were essayed before Weinberg and Coghlan JJA and Lasry AJA. In our view, they would fail.

11 During the course of submissions, a question arose as to whether the conclusion reached by their Honours creates an issue estoppel which in effect precludes this application.

12 As at present advised, we do not think it does. Section 297(3) of the Criminal Procedure Act 2009 provides that a refusal of leave to appeal under s 297 does not preclude an appeal on the issue that was the subject of the proposed appeal. As matters stand, we incline to the view that 'leave to appeal' in s 297(3) should be construed expansively as including a review of a judge's decision to refuse to certify. Consequently, if we were persuaded that the conclusion reached by Weinberg and Coghlan JJA and Lasry AJA was wrong, we would be prepared to take a different view to their Honours.

13 As it happens, however, we need not reach a concluded view as to whether 'leave to appeal' has that meaning because we are not persuaded that their Honours were wrong. To the contrary, we think they were clearly right.

The grounds upon which the applicant relies are:

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 R.[6]

(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.

2. 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.[7]

...

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.

The applicant argue[d] 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 refer[ed], in support of that submission, to the following observation by Dawson and McHugh JJ in Maxwell v R:[8]

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.

The applicant submit[ted] that, in the light of that passage, he should be entitled, as of right, to change his plea. Indeed he [went] further. He submitted that the judge was bound, of her own motion, to direct that a not guilty plea be entered.

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.

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[9] 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

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.

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.

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 be particularly relevant to the issues raised by the applicant in this proceeding.

In Meissner, Dawson J (who dissented in the ultimate result, but not on this particular point) said at p 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.

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

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.

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.

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.[10]

15 It is, therefore, sufficient for the disposition of this application to say that, for the reasons which Weinberg JA gave,[11] we are of opinion that there was no basis on the facts of this matter for the judge to grant the applicant leave to change his plea.

16 In deference, however, to the submissions of counsel for the applicant, and in particular the reliance which he placed on the observation of Dawson and McHugh JJ in Maxwell that an admission may not be a true admission of guilt if it results from the desire to gain a 'technical advantage', we add that, like Weinberg JA, we see no inconsistency between Maxwell and Meinser. Reading Dawson and McHugh JJ's reference to 'technical advantage' in the context in which it appears and against the background of cases decided before Meisner as to the withdrawal of a plea of guilty before conviction, the position appears to be as follows:

(a) A true admission of guilt of an offence means an admission freely made of an offence of which the accused is truly guilty.

(b) An admission of guilt is not freely made and, therefore, is not a true admission of guilt if the accused's exercise of free will to make or withhold the admission is overborne or otherwise substantially compromised by factors such as fraud, duress, intimidation, improper inducement or misrepresentation.

(c) Likewise, an admission of guilt, even if freely made, may not be a true admission of guilt if it results from a mistake as to the nature of the admission, including without limitation, a mistake as to the nature of the offence admitted.

(d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.

17 Consequently, before a judge will entertain an application to withdraw a freely made admission of guilt on the basis that it was motivated by hope or expectation of technical advantage, the judge will need to be persuaded by evidence that the accused did not intend by the plea to accept guilt for an offence of which he believed himself to be guilty.

18 In this case, there was no evidence before the judge even that the applicant contended he was not guilty of the subject offences and, although he later filed an affidavit before the sentencing judge in which he deposed that he denied guilt of the subject offences, there is still no evidence that by his plea of guilty he did not intend to accept guilt for offences of which he believed himself to be guilty.

19 Accordingly, the order of the Court is that the application for leave to appeal out of time is dismissed.

[1] Criminal Procedure Act 2009, s 295; McDonald v R [2010] VSCA 45, [13] (Ashley JA); cf [21] (Redlich JA); Wells v R [2010] VSCA 100.

[2] [2013] VSCA 297.

[4] (Unreported, Supreme Court of Victoria, 2 May 1975); see also R v O'Keefe [1979] VicRp 1; [1979] VR 1, 5; Bowling v R [2013] VSCA 87 [14]-[18] (Redlich JA); Soteriou v R [2013] VSCA 328, [55] (Ashley JA).

[5] As to why the applicant should have been permitted to change his plea.

[6] [1995] HCA 41; (1995) 184 CLR 132 ('Meissner').

[8] [1996] HCA 46; (1996) 184 CLR 501, 511 ('Maxwell').

[9] (1989) 43 A Crim R 362.

[11] [2013] VSCA 297, esp [15]-[26].