LAWSON v REGINA

Judgment 1HALL J: The applicant seeks leave by notice dated 8 July 2010 to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912 against the conviction and sentence imposed by the Sydney District Court (Bennett DCJ) on 19 June 2009. 2The applicant initially appeared before the District Court for trial on 22 April 2008 and, upon arraignment, he pleaded not guilty to eight counts. 3The selection of the jury was deferred until the Court heard argument in relation to an application for the rejection of evidence, namely, a recording and transcript of a conversation covertly captured on 6 December 2006 pursuant to a warrant issued under the former Listening Device Act 1984 and the recordings and transcript of conversations between alleged co-offenders in which the applicant was not a participant. The proceedings were adjourned to the following day. 4The trial judge duly conducted a voir dire examination on 22 April 2008 in the applicant's presence in respect of:- (1) A recording (and transcripts) of a conversation (Exhibit VD1). The recording was made covertly on 6 December 2008 at Parklea Correctional Centre. It recorded a conversation between the applicant, the co-offender, Ms Murphy (who was to be called in the Crown case to give evidence against the applicant) and an undercover operative, "Sean" . (2) The recordings of a number of (up to 16) intercepted telephone conversations (Exhibit VD3) being conversations between Ms Murphy and "Sean" and between Ms Murphy and the applicant. 5The covert recording of the conversations at Parklea Correctional Centre were challenged on the basis that no relevant conversation was audible on the recording. The intercepted telephone conversations were challenged on the basis that they were inadmissible hearsay. 6The Crown, in its written submissions, noted (paragraph 14) that the evidence on the voir dire also consisted of the following:- "14. Also tendered on the voir dire were - a. two ERISPs (Exhibit VD2) between investigating Police and the co-offender, Ms Murphy, who was be [sic] called in the Crown case against the Applicant; and, b. a statement of Gary Best (Exhibit VD4) was be [sic] called in the Crown case against the Applicant that - i. as at 2006, he and the Applicant had known each other for some twenty years, ii. the Applicant apparently believed that Mr Best had a history of violence and/or intimidation, iii. on 2 October 2006 Ms Murphy arranged at the request of the Applicant for Mr Best to visit the Applicant in custody because the Applicant wanted Mr Best to do something about the Crown witnesses (Minnett and Rumble) who were to be called to give evidence against him in relation to counts 1 to 5 inclusive on the first indictment, iv. on 28 October 2006 Mr Best went with Ms Murphy to the Parklea Correctional Centre Prison and there met with the Applicant who asked him to obtain exculpatory affidavits from Minnett and Rumble and if they declined to provides [sic] the same, then to 'get them out of the way', do 'what you do', do 'whatever it takes', v. Mr Best then informed the Police of these events." 7The trial judge, having heard the recording of the conversation on 6 December 2006 at Parklea Correctional Centre, indicated to counsel that, in his view, portions of the recording were audible and that they included a significant inculpatory conversation by the applicant. 8His Honour also expressed the preliminary view that the intercepted telephone conversations would be admissible as evidence supporting the existence of the conspiracy relied upon by the Crown. The voir dire was adjourned to the following day. 9On 23 April 2008, counsel for the applicant informed the trial judge that the Crown would accept pleas of guilty to three counts, with two further counts to be included in a Form 1 to be dealt with pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. The remaining charges were to be abandoned. 10Accordingly, Counts 3, 6 and 7 on the original indictment were presented as Counts 1, 2 and 3 in a fresh indictment and Counts 2 and 4 on the first indictment were included as additional matters to be taken into account on the Form 1. The Crown indicated that it would not proceed in respect of Counts 1, 5 and 8 on the original indictment. 11On 24 April 2008, the applicant was re-arraigned upon the fresh indictment and he pleaded guilty to the following charges:- " First count: On 8 September 2005 at Cartwright in the State of New South Wales, while in the company of another person, did detain Ben Randall without his consent and with intent to obtain an advantage, namely, gain entry to unit 8/24 Woolnough Place. Section 86(2), Crimes Act 1900 Second count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, inflict grievous bodily harm upon Chris Minett with intent to do grievous bodily harm. Common Law Third count: Between 30 October 2006 and 8 December 2006, at Sydney in the State of New South Wales, did conspire with Renee Murphy to do an unlawful act, namely, maliciously inflict grievous bodily harm upon Rhonda Rumble with intent to do grievous bodily harm. Common Law." 12The Court took into account the two further matters concerning the applicant on a Form 1, being as follows:- "1. On 8 September 2006, he entered land with intent to commit a serious indictable offence, namely, intimidation (s.114(1)(d) of the Crimes Act 1900). 2. On 8 September 2006, he intimidated Ms Rumble with intent to cause her to fear physical or mental harm (s.545AB of the Crimes Act 1900)." 13Following a lengthy delay, the applicant was sentenced on 19 June 2009 to serve a fixed term of imprisonment for 5 years and 3 months for the aggravated detain for advantage offence, dating from his arrest on 8 September 2006. 14In respect of the two conspiracy offences, the applicant received partially accumulated sentences of 9 years with a non-parole period of 6 years. These sentences were stated to commence on 8 September 2008 and were to be served concurrently. 15Accordingly, the total sentence imposed upon the applicant was a period of 11 years with a non-parole period of 8 years. 16Following the applicant's plea of guilty to Counts 1, 2 and 3, the proceedings were adjourned to 25 July 2008 for sentence. A pre-sentence report was ordered. When the report was made available, it became apparent that the applicant had traversed his plea. The applicant told the author of the report that he was not guilty of the offences. 17On 5 September 2008, a notice of motion seeking leave to withdraw the pleas of guilty was filed in the District Court. The application was heard by Bennett DCJ on 11 September 2008, 14 November 2008, 25 November 2008 and 27 January 2009. 18Both Mr Price of counsel, who had been appearing for the applicant prior to that time, and his instructing solicitor withdrew from the proceedings. The matter was adjourned to allow the applicant time to obtain alternative legal representation. 19In due course, Mr Mitchell Paish of counsel appeared on behalf of the applicant. An application was made to Bennett DCJ to reverse the pleas of guilty. The application was duly heard and determined. 20On 8 May 2009, Bennett DCJ delivered judgment refusing leave to withdraw the pleas of guilty. 21On 19 June 2009, as earlier noted, the applicant was sentenced. 22In the notice of appeal dated 8 July 2010, the applicant set out five grounds of appeal. Each ground will be discussed below. 23The Crown observed in submissions that, as the applicant's conviction had already been entered, the present application should proceed as an application for leave to appeal against conviction upon the ground that there has been a miscarriage of justice: s.6(1) of the Criminal Appeal Act .