Liu v Director of Public Prosecutions

v The Queen (1996) 184 CLR 501; [1996] HCA 46 Meagher v Stephenson (1993) 30 NSWLR 736 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 R v Filimoehala (2003) 138 A Crim R 299; [2003] NSWCCA 37 R v GAT [2024] NSWCCA 32 R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 R v Sewell [2001] NSWCCA 299 R v XHR [2012] NSWCCA 247 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Sayer-Jones v Director of Public Prosecutions (Supreme Court (NSW), Wilson J, 14 May 2019, unrep) Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 Strbak v Newton [1989] NSWCA 202 Styles v Rowley [2023] NSWSC 1053 Sydney Trains v Batshon [2021] NSWCA 143 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241 Williams v The Queen (1986) 161 CLR 278 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 Category: Principal judgment Parties: Ziyi Liu (plaintiff) Director of Public Prosecutions (NSW) (first defendant) Local Court of NSW (second defendant) Representation: Counsel: M Kalyk (plaintiff) C Gleeson SC (first defendant)

Solicitors: Murphy's Lawyers (plaintiff) Solicitor for Public Prosecutions (NSW) (first defendant) File Number(s): 2023/00240771 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 24 March 2023 Before: Brender LCM File Number(s): 2020/00262691

Introduction

1. On 9 September 2020, Ziyi Liu ('the plaintiff') was charged with 22 offences that arise out of events that occurred at Star City Casino between 5 August and 9 September 2020. Essentially, the prosecution case was that the plaintiff, and two others who were dealers at that casino, engaged in cheating while playing the game Baccarat. Put very simply, that cheating involved what was described as a Baccarat collusion scam whereby the dealer would look at, and memorise, a number of cards and convey them to the plaintiff, who would bet heavily on what was said to be a corrupted hand.
2. The plaintiff, by amended summons filed 4 March 2024, seeks to appeal as of right, or by leave to appeal, pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (the 'CAR Act'), essentially two decisions of a Local Court Magistrate. Grounds 1-4 of the amended summons are directed to a challenge to the decision of the Magistrate to refuse the plaintiff leave to withdraw pleas of guilty and ground 5 is directed to challenging his conviction on sequence 5 - being the offence, provided by s 351A of the Crimes Act 1900 (NSW), of recruiting others to assist in carrying out criminal activity, being dishonestly obtaining financial advantage.
3. The plaintiff tendered a court book (exhibit A) and it is convenient to refer to the page numbers in that exhibit as CB 1 etc. when referring to the judgments of the Magistrate and particular parts of those judgments.
4. The Director of Public Prosecutions (NSW) ('the defendant') is the only active defendant in the proceedings.

Background

1. I will set out the background facts across nine parts: first, the charges against the plaintiff in the Court Attendance Notice; secondly, the circumstances of the offending; thirdly, the making of pleas of guilty and the 'plea deal'; fourthly, the procedural history and developments following the initial hearing; fifthly, the plaintiff's application for leave to withdraw the guilty pleas; sixthly, the decision of the Magistrate refusing the plaintiff leave to withdraw the guilty pleas; seventhly, the continuation of the hearing in relation to the contested charges; eighthly, the judgment delivered on 5 May 2023; and, finally, the judgment delivered on 30 June 2023.

The charges: the Court Attendance Notice

1. On 9 September 2020, the plaintiff was charged with 22 offences by Court Attendance Notice. By way of summary: 1. There were 19 charges alleging that the plaintiff, contrary to s 192E(1)(b) of the Crimes Act, dishonestly obtained financial advantage, or caused disadvantage, by deception. Specifically, the offending was alleged to involve the plaintiff "cheating at the star Casino whilst playing Baccarat" and thereby dishonestly obtaining financial advantage. The offending was alleged to have occurred in the period 5 August 2020 to 9 September 2020. The financial advantage alleged to have been obtained by the plaintiff was substantial: $530,850.00. These were sequences 1-3 inclusive and 6-21 inclusive. 2. There was one charge alleging that the plaintiff, contrary to s 93T(1) of the Crimes Act, in the period between 14 August 2020 and 9 September 2020, participated in a criminal group that defrauded the Star Casino by cheating at Baccarat. This was sequence 4. 3. There was one charge alleging that the plaintiff, contrary to s 351A(1) of the Crimes Act, in the period 1 December 2019 to 1 March 2020, recruited others to assist in carrying out a criminal activity - namely, dishonestly obtaining financial advantage etc. This was sequence 5. 4. There was one charge alleging that the plaintiff, contrary to s 93T(1A) of the Crimes Act, knowingly participated in a criminal group, in the period between 1 August 2020 and 9 September 2020, by directing the activities of the group, knowing or being reckless as to whether that participation contributed to the occurrence of criminal activity. This was sequence 22.

The circumstances of the offending

1. In relation to the fraud offences for which there were pleas of guilty, the essential allegation was that the plaintiff cheated whilst playing Baccarat by placing a number of bets based upon an identified card sequence that had been conveyed to him by a dealer (named Alex). In relation to the offence of recruiting another to assist in carrying out a criminal activity (sequence 5), the essential allegation was that the plaintiff had recruited a dealer (named Andy) to carry out or assist in carrying out the betting scam. (There is an issue between the parties about the extent to which the plaintiff put in issue elements of this offence, to which it will be necessary to return later).

The guilty pleas

1. The matter was listed for hearing in the Local Court on 4 August 2022 before Magistrate Brender. At the commencement, the plaintiff and the prosecution sought a short adjournment so as to continue "negotiations" in order "to try to resolve the fraud charges, the 19 of them", which was duly granted by the Magistrate. As noted above, the "fraud" charges were sequences 1-3 inclusive and 6-21 inclusive.
2. When the matter resumed, the position that was initially reached was that three sequences were to proceed to a contested hearing - namely, sequences 4, 5 and 22. Then, following a further exchange between the Magistrate, counsel for the plaintiff and the prosecution, the plaintiff indicated a plea of guilty would be entered to sequence 4, with the Magistrate indicating that he was "inclined to accept the plea". The Magistrate was advised that sequences 5 and 22 were "for hearing", that the prosecution were "seeking a plea to sequences 1, 2, 6, 7 and 8", with the remainder - except for sequence 20, which was to be withdrawn - to be placed on a Form 1.
3. In relation to sequence 4, the following should be noted. The hearing was conducted, essentially on the basis that "evidence" would be adduced dealing with "participation … [and] direction, of the criminal group" and that sequences 4 and 22 would be "alternatives". Counsel for the plaintiff then indicated that the plaintiff would "enter a plea to sequence 4 and apparently, if in the hearing, the prosecution satisfies [the Court] about sequence 5 they will then seek to withdraw sequence 4…". The position appeared to have been reached is that, in connection with the remaining charges, it was only possible to have convictions in connection with sequences 4 and 5 or 22 and 5. It was foreshadowed, notwithstanding that a plea of guilty was made to sequence 4, that the plaintiff may seek to have the Magistrate "reverse that acceptance of the plea on (4) and dismiss it".
4. Following on from the above, and given the dispute between the parties that has arisen in connection with ground 5 of the amended summons, it is important to note the following statement by counsel for the plaintiff that identified the basis upon which the offence of recruiting a person to engage in a criminal activity contrary to s 351A of the Crimes Act was to be contested by the plaintiff: Can I tell your Honour what the dispute is? The dispute is, so that your Honour understands the context, the prosecution case is that we, the [plaintiff] recruited two dealers who worked at the casino into a corrupt betting arrangement. We say it's quite the opposite; they, those two dealers, invited us into the scheme. Unguided - when I say us, the singular person.

The procedural history: the developments following the hearing

1. The hearing in connection with sequences 5 and 22 that was scheduled to resume on 21 October 2022 did not proceed. It appears that the hearing "was vacated so that [the plaintiff] could make a plea traversal application". The matter was then stood over until 28 October 2022. On that day, "it was stood over for the actual plea traversal hearing on 23 February [2023]".
2. As it happens, however, that hearing did not proceed because the plaintiff withdrew the plea traversal application. Given those developments, the hearing for sequences 5 and 22 was listed for finalisation on 24 March 2023.

The hearing on 24 March 2023: the application for leave to withdraw the pleas of guilty

1. On 24 March 2023, the plaintiff made an application "to change the pleas from guilty to not guilty". Although it appears that the prosecution was given a "few" days' notice of the plaintiff's intent to pursue the application, the Court was not.
2. The plaintiff, in support of that application, read two affidavits: one from the plaintiff, affirmed 19 October 2022; and one from his solicitor, Abdul Tlais, sworn 15 February 2023. The prosecution called some short evidence from the officer in charge. The plaintiff and the prosecution made oral submissions.
3. The Magistrate then delivered essentially ex tempore reasons refusing the application for the plaintiff to withdraw his pleas.

The decision of the Magistrate refusing leave to withdraw the pleas

1. Although it will be necessary, in order to deal with grounds 1-4 raised in the amended summons, to return to some of the detail of the Magistrate's reasons, it is sufficient for present purposes to note the following summary of the key conclusions reached in connection with the application for leave to withdraw the pleas of guilty: 1. The Magistrate noted that there was "an agreed fact that there were extensive negotiations on the day of the hearing leading to the entry of the pleas" (CB 196.42). 2. The Magistrate held that the decision in White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241 ('White'), relied upon by the plaintiff, established that the "proper test to be applied where an accused seeks leave to withdraw a guilty [plea] prior to conviction is whether the interests of justice require that course to be taken" (CB 196.45). The Magistrate also noted that the decision in White at [65] provided a "non-exhaustive list of factors which effect the interests of justice" (CB 197.4). 3. Applying the "broad interests of justice test", the Magistrate made the following findings: 1. there "was a formality in the plea by having the barrister stand up and enter that plea in Court with [the plaintiff] present" (CB 199.2); 2. there "was a delay between the entry of the plea and the application for its withdrawal" (CB 199.4); 3. there is "possible prejudice to the Crown in the sense that the two witnesses who have already given evidence are going to have to be recalled and their level of cooperation is not guaranteed", albeit that the Magistrate considered this a "somewhat weak factor" because there was no particular evidence about this, merely that it was "certainly undesirable to be having witnesses recalled and giving evidence on a second occasion in the same case" (CB 199.5-199.10); 4. the nature and extent of the legal advice "is against the application". There was "lengthy and comprehensive advice" according to the plaintiff's former solicitor, and there was no cross-examination of the solicitor nor any suggestion that "full and frank and fearless advice was not given or that it was wrong, or misconceived and the barrister was not called either or had any criticism put to him and his notes were not provided" (CB 199.15); 5. the onus is upon the plaintiff "to demonstrate that something happened in the process of giving the advice and obtaining the plea that it is in the interests of justice to permit its withdrawal" (CB 199.17); 6. the offending and charges, and likely consequence, were serious and although the Magistrate had "not given that any real consideration it does seem like a serious case" (CB 199.23); 7. the Magistrate did not think there was "impropriety [or] any imprudent or inappropriate advice" (CB 199.27); 8. in relation to whether there was a "real question about the guilt, I accept there might be a question, it might be a real question. I cannot embark on that with the material that I have" (and later stated that he was not able to "make a finding about how strong that real question is": CB 199.37) and in this respect noted that all "that was really put was that some of the advice may have been overstated in that one or perhaps three of the occasions in which the CCTV footage captured what happened involved the cards being visible so that presumably in many of the cases that level of evidence is not available" (CB 199.27-199.37); and 9. there had been some delay, albeit delay for which the plaintiff was not responsible, but that if the "pleas are withdrawn, there will then be a further serious delay while more court time is taken. I do not think that is in the interests of justice" (CB 199.40-199.46). 1. The Magistrate then concluded that "[o]n balance, in all the circumstances, I do not think the interests of justice require this plea, or permit this plea to be withdrawn. I DECLINE THE APPLICATION. PLEA TRAVERSAL REFUSED" (CB 199.48-199.50).

The continuation of the hearing

1. Following the Magistrate refusing the plaintiff leave to withdraw his plea, the hearing continued.
2. The hearing involved some extracts of the CCTV footage being played - the plaintiff submitted that it was "not clear if those parts were in fact tendered" (plaintiff's submissions at [53]) and agreed facts being tendered. In relation to the CCTV footage played, this led to the exchanges whereby the plaintiff's counsel queried the relevance of showing the footage given the narrowing of issues that had been made (those specific exchanges are referred to in [13(2)]-[13(3)], above).
3. The plaintiff and the prosecution made closing submissions.
4. It appears that, during the course of submissions, the Magistrate expressed a concern about the effect of the plea of guilty to sequence 4 and whether the effect of that plea might be to foreclose the plaintiff submitting that the prosecution could not make out the offence under s 93T(1) of the Crimes Act (sequence 4) or the offence contrary to s 93T(1A) of the Crimes Act (sequence 22) - essentially because both offences involved a "criminal group", and there was a plea of guilty in relation to sequence 4 that contained that element. In a nutshell, the argument that the plaintiff sought to run is that the plaintiff did not, by his conduct, participate in a criminal group nor did he institute it and, in any event, whatever the plaintiff participated in was not a criminal group within the definition.
5. The Magistrate indicated that he had not appreciated that when the plaintiff made the application to withdraw the plea to sequence 4 (T 220.20). The Magistrate also indicated during an exchange with counsel, that the issues in connection with sequence 4 were "completely different" and involved "different issues" to the other sequences the subject of the guilty pleas. The Magistrate indicated to counsel for the plaintiff that the argument then being advanced was not raised, a matter that was accepted by counsel who indicated that this was his "fault" and that he did not "elaborate…on all my grounds", expressing the view that he did not consider it "appropriate to do so".
6. The Magistrate then indicated that he was proposing to "rehear the point about 4".
7. Following submissions, the Magistrate granted the plaintiff leave to withdraw the plea to sequence 4 and provided short reasons for doing so (CB 225.36-226.33). Put simply, the Magistrate held that there were "serious legal arguments" about whether what occurred would "involve a criminal group, or the obtaining of benefits from the relevant conduct within the definition" and, given the prosecution accepted that they would not have "run the case any differently", then that matter "tips the balance of the factors in White towards permitting the withdrawal of the plea, because I think it is possible that it was entered by reason of imprudent advice. Yes, there is a real question about guilt on that matter, because in a question of law, there is no prejudice to the Crown" (CB 226.21).

The judgment delivered on 5 May 2023

1. The Magistrate delivered a judgment on 5 May 2023 dealing with the "charges which were defended and which are for decision relat[ing] to participating in recruiting and directing a criminal group" (CB 255.32). Although not expressed in terms as relating to sequences 4 and 22, these reasons deal with those offences.
2. The Magistrate "dismiss[ed] the charges on the basis that there was no evidence at all of there being a criminal group" (CB 258.35). The Magistrate did not, however, deal with sequence 5 in those reasons.
3. That is apparent from the reasons themselves, although there is some other evidence to the effect that the Magistrate indicated, following delivery of these reasons, that he had "overlooked" making a decision in relation to sequence 5 (affidavit of Bryan Wrench affirmed 8 February 2024, pars 7-8). It is apparent, however, that Mr Wrench was not present when the reasons were delivered, but a solicitor in his office was and her evidence was that, despite the transcript, this is what occurred (affidavit of Sophie Newham affirmed 6 February 2024, pars 5-7). The defendant did not contest this matter and, as I have said, the reasons themselves indicate that the Magistrate did not deal with sequence 5.

The judgment delivered on 30 June 2023

1. The Magistrate delivered a judgment on 30 June 2023 in connection with sequence 5, finding the plaintiff guilty of that offence (CB 262.26). This finding is the subject of challenge by ground 5 of the amended summons, and the detail of the Magistrate's reasons on this sequence is dealt with further as part of the consideration of that ground of appeal.
2. Having found that offence proven, the Magistrate raised the matters that were on the Form 1. The Magistrate indicated that his understanding was that, unless the plaintiff signed the form, it could not be taken into account on sentence. When the Magistrate indicated to counsel for the plaintiff that the plaintiff had "refused to sign" the form, counsel contested that, indicating that "what happened [on] the last occasion is, prior to the traversal or, I think it was just an oversight prior to the traversal".
3. The Magistrate also indicated that if the plaintiff did not sign the form, then, as there was "no plea, and unless they're withdrawn, they'll have to be heard". Counsel for the plaintiff indicated that he could not give "an answer right now. It's not a simple question… There might be complexities", without elaborating on what they were or might be, and it was also suggested that there might be "prejudice in proceeding", albeit that the suggested prejudice was not then identified.

The plaintiff's appeal: the CAR Act and judicial review

Introduction

1. The plaintiff, by grounds 1-4, seeks to challenge the decision of the Magistrate to refuse him leave to withdraw the guilty pleas and, by ground 5, the finding of guilt in connection with sequence 5.
2. The amended summons fails to set out the precise basis for the appeal to this Court in relation to each of the grounds, other than by indicating that to "the extent that the appeal involves a question of fact or a question of mixed law and fact, leave be granted to appeal pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW)" (amended summons, relief claimed, par 2).
3. From the written submissions filed, in connection with grounds 1-4, the appeal is brought pursuant to s 52(1) and 53(1) of the CAR Act or, as a fall-back, s 53(3) of the CAR Act (plaintiff's submissions at [72]). In connection with ground 5, the plaintiff submitted that the appeal is brought pursuant to s 53(1) of the CAR Act (plaintiff's submissions at [71]) but, from later submissions, it is apparent that the plaintiff pursues this ground of appeal pursuant to s 52(1) of the CAR Act.
4. The plaintiff concurrently seeks judicial review under s 69 of the Supreme Court Act 1970 (NSW) directed to the first four grounds of appeal.
5. I will set out the relevant statutory provisions from the CAR Act, and thereafter address a threshold issue that arises in connection with their engagement in the present case.

The CAR Act

1. Section 52 of the CAR Act provides: Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
2. By its terms, s 52(1) confers an appeal as of right upon a person convicted or sentenced and, relevant to what was argued here, permits an appeal "against the conviction… but only on a ground that involves a question of law alone".
3. Section 53 of the CAR Act provides: Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves - (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom - (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.
4. By its terms, s 53(1) imposes three restrictions on any appeal to this Court involving a question of fact or a question of mixed law and fact - first, the person must be convicted or sentenced by the Local Court; secondly, the appeal is against the conviction or sentence and limited to a ground that involves "a question of fact" or "a question of mixed law and fact"; and, thirdly, any appeal is by way of leave of the Court.
5. Section 53(3)(b) of the CAR Act limits any appeal from an interlocutory order made by the Local Court in summary proceedings. In relation to appeals against orders of that kind, any appeal is only on a ground "that involves a question of law alone" and only by leave of the Court.

Introduction

1. I have earlier set out the factual background in connection with the plaintiff's pleas of guilty: see [8]-[10], above.
2. Briefly, by way of summary, the pleas of guilty were made on 4 August 2022 in the following circumstances. At that time, the plaintiff was represented by counsel and, after requesting the Magistrate provide the plaintiff and the prosecution time to engage in "negotiations" in connection with what were described as "the fraud charges", counsel later announced agreement to enter pleas of guilty to sequences 1, 2, 6, 7 and 8 and sequences 3, 9-19 inclusive and 21 would be placed upon a Form 1 in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
3. Neither party identified any relevant statutory provisions requiring consideration in the assessment of whether the plaintiff had been convicted for the purposes of ss 52(1) and 53(1) of the CAR Act. For completeness, I would merely observe that the term "conviction" is not defined in the CAR Act, albeit that it is given a specific meaning in the context of an application or an appeal in relation to proceedings under the Children (Criminal Proceedings) Act 1987 (NSW): s 3(2) of the CAR Act.
4. The term "conviction" has no fixed meaning: the "question of what amounts to a conviction admits of no single, comprehensive answer" and the answer to the question is necessarily context, statutory and factual dependent: Maxwell v The Queen (1996) 184 CLR 501, 507; [1996] HCA 46 ('Maxwell'). In Maxwell, it was observed (at 507) that: [o]n the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.
5. The plaintiff and defendant accepted that a plea of guilty, without more, did not amount to a conviction and, further, that in the present case, whether the plaintiff has been convicted or not is a question of fact and ultimately turns upon whether the Magistrate has acted consistently with there being a conviction: see Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 at [26] ('Selkirk'), citing Griffiths v The Queen (1977) 137 CLR 293, 301 and 335; [1977] HCA 44 and Sayer-Jones v Director of Public Prosecutions (Supreme Court (NSW), Wilson J, 14 May 2019, unrep). Consistent with this analysis, in Maxwell, Toohey J observed that at common law, "conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination" and that there were "a number of ways in which a court may show acceptance of a guilty plea", including by the judge "expressly indicat[ing] that the accused was convicted before making any order in relation to that conviction" or that there may be "implied acceptance, for instance, by proceeding to pass sentence": at 520-521.

Discussion and consideration

1. The plaintiff submitted that there was "an ambiguity as to whether or not the applicant has been 'convicted' on the sequences he pleaded guilty to" (plaintiff's submissions at [72]). Nevertheless, the plaintiff submitted that he "should be understood to have been 'convicted'… in circumstances where they have been accepted by the Court" (plaintiff's submissions at [74]). This was said to follow, the plaintiff argued, because the plea had been "accepted by the Court in the sense of rendering them final" (plaintiff's submissions at [75]). The plaintiff submitted that, in the present case, the Magistrate "made plain that he has accepted the pleas of guilty and that he will proceed to sentence based on the pleas of guilty" (plaintiff's submissions at [76]).
2. It follows, upon the plaintiff's argument, that the plaintiff's entitlement to appeal to this Court is within s 52(1) of the CAR Act and addresses the first precondition to it - namely, that the plaintiff has been "convicted… by the Local Court" and, subject to satisfaction of the other two pre-conditions, an appeal will lie to this Court as of right. That finding - viz., that he has been "convicted" - would also entitle the plaintiff, subject to leave of the Court, to appeal against the conviction on a ground that involved a question of fact or a question of mixed law and fact: ss 53(1)(a) and (b) of the CAR Act.
3. It is, in my view, important to note the stance adopted by the plaintiff in this Court in connection with this issue, is inconsistent with the stance that was adopted in the Local Court: at no point in connection with the application for leave to withdraw the pleas of guilty did the plaintiff suggest that he had been convicted. In fact, he adopted the contrary position - namely, that he had not been convicted. Further, again inconsistently with the position adopted on this issue by the plaintiff, a number of the written submissions in this Court were to the effect that the plaintiff had not been convicted. For example: 1. The plaintiff submitted that the appeal to this Court was from a decision of a Magistrate refusing an application "prior to convictions having been entered to traverse [the plaintiff's] pleas of guilty" (plaintiff's submissions at [1]); 2. The plaintiff submitted - both before the Magistrate and in this Court - that the "law applicable to an application to traverse a plea of guilty prior to conviction" was covered by the decision in White (plaintiff's submissions at [9]); and 3. The plaintiff submitted that the decision in White emphasised "a different approach to applications to traverse pleas of guilty when the application is made after a conviction is entered and when the application is made prior to conviction being entered" (plaintiff's submissions at [22]).

Characterisation of the order refusing leave to withdraw the guilty pleas

1. In relation to an appeal under s 53(3)(b) of the CAR Act, the plaintiff had a "threshold" submission: the plaintiff submitted that there were "various authorities" where, in effect, it had been "assumed" that an appeal "in relation to a refusal of an application to withdraw a plea was an appeal pursuant to s 53(3)(b) of the CAR Act" (plaintiff's submissions at [73]). The plaintiff's submissions referred, in this respect, to the decisions in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 ('Wong') and Grant v Local Court of New South Wales [2015] NSWSC 356 ('Grant').
2. The overall intent of this submission was not altogether clear, particularly as the plaintiff did not seek to argue that the decision refusing him leave to withdraw the guilty pleas was "final". Logically - the submissions did not elaborate upon this matter - only two possible consequences would seem to follow from the plaintiff's submission: the first is that, the point having been apparently assumed by these authorities, it falls upon this Court to undertake the task of characterising the nature of the order made by the Magistrate in connection with this issue from first principles; the second is that, if the conclusion is contrary to the "various authorities", then the plaintiff would not be within s 53(3)(b) of the CAR Act and, given the conclusion that I have reached in connection with the appeals under ss 52(1) and 53(1), no appeal would lie to this Court (by leave or otherwise) for grounds 1-4 under the CAR Act.
3. I am unable to accept the plaintiff's submission on this topic. In my view, contrary to what was submitted, the decision to refuse an application to withdraw a plea is interlocutory and has been held as such by decisions of this Court and also by the Court of Criminal Appeal.
4. Thus, in Wong, Howie J held that where a Magistrate refuses an application by an accused for leave to withdraw a guilty plea, the order refusing the leave sought was interlocutory and an appeal to this Court in respect of that order was within s 53(3) of the CAR Act: at [1]. The fact that, later, Howie J noted (at [10]) that there was "no dispute… that an application to permit a defendant to withdraw a plea of guilty was interlocutory in nature" does not detract from that earlier holding, in my view. Further, that was also the approach adopted by Johnson J in Grant, where his Honour held that, citing the decision in Wong, an "application to permit a person to withdraw a plea of guilty is interlocutory in nature" (at [49]). Separately, I would simply add that applications made to withdraw pleas are treated as, and have been held to be, interlocutory orders: R v Sewell [2001] NSWCCA 299 at [3]; R v Filimoehala (2003) 138 A Crim R 299; [2003] NSWCCA 37 at [34].

The requirement for leave

1. Despite the requirement for leave in connection with any appeal under s 53 of the CAR Act, the plaintiff's written submissions did not address this requirement, except for a general submission about leave to appeal involving mixed questions of law and fact or questions of fact and a brief reference to one matter in the plaintiff's written reply submissions. Nor were they addressed in oral submissions. Rather, the grounds relied upon to support a grant of leave appear in the amended summons. Those grounds were generally expressed and did not distinguish between the grounds of appeal directed to the refusal of leave to withdraw the guilty pleas (grounds 1-4) and the ground directed to the plaintiff's conviction for the offence under s 351A of the Crimes Act (ground 5).
2. Four matters were raised to support a grant of leave - as follows: first, by reason of the "procedural and practical uncertainty" as to how the trial is to be completed, uncertainty that is said to derive from the fact that a number of the offences were placed onto a Form 1 (amended summons, par 11); secondly, it is said that the Magistrate "considered that it was appropriate and desirable that the convictions be appealed at the present stage" (amended summons, par 12); thirdly, it is said that the NSW Police "did not express any opposition to the desirability of an appeal against the convictions"; and, fourthly, absent the plaintiff being sentenced, the District Court "does not have jurisdiction to entertain an appeal in the present case" (amended summons, par 14).
3. In relation to the requirement for leave, the relevant principles that govern the question of leave are well-established. The defendant submitted that leave to appeal will ordinarily only be granted "concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable": Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12]. Although these were civil matters, the plaintiff did not contest their application in the present case.
4. In Koschier v R [2024] NSWCCA 24 at [47] ('Koschier'), it was noted that various tests have been formulated for the grant of leave to appeal in the context of interlocutory decisions in criminal proceedings (some citations omitted): In DAO at [76], Allsop P spoke of the need for "demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice" (emphasis added). The then President also added that "leave can be refused even if an error of principle has been disclosed". Other judges have spoken of the need to show "an error of principle apt to cause irregularity or injustice" (emphasis added)…

A question of law alone

1. The plaintiff's appeal - whether pursuant to ss 52(1) and 53(1) (for ground 5) or s 53(3)(b) of the CAR Act (for grounds 1-4) - is against the conviction or order "but only on a ground that involves a question of law alone". The defendant argued, in relation to each of the "questions of law alone" identified in the plaintiff's written submissions directed to all grounds, that in substance they were not questions of that kind, but were, at best, questions of mixed law and fact. Given that contest, and the need for there to be a question of law alone in order for this Court to be seized of jurisdiction, it is necessary to address this pre-condition.
2. In relation to a question of law alone, as that phrase appears in the above sections, the following five matters warrant emphasis. First, a mixed question of fact and law does not fall within the description of "question of law alone" (Attorney-General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; R v XHR [2012] NSWCCA 247 at [23] ('XHR')), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue (NSW) (2014) 96 ATR 875; [2014] NSWCA 378 at [6] ('Ferella'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('Schwartz'). Thus, if, upon proper analysis, the question is not one of law, "linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law": Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97 at [53]; see also Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527. Thirdly, "the formulation 'a question of law alone' is more restrictive than the formulation 'a question of law'. Furthermore, the terminology 'question of law' is not equivalent to 'error of law'": R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 at [74] ('JS'); XHR at [21]. Fourthly, the grounds of appeal are required to explicitly identify - or as it is sometimes said identify "with precision" - the question of law raised: Part 51B, r 8 of the Supreme Court Rules 1970 (NSW) ('SCR'); JS at [75]; Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Fifthly, the appeal against the conviction is confined to a ground that involves a question of law alone.

Judicial review of the decision to refuse leave to withdraw the guilty plea

1. The plaintiff also sought judicial review of the decision of the Magistrate refusing leave to withdraw the guilty plea. It is necessary to address whether, given the rights of appeal conferred upon a person such as the plaintiff by reason of the CAR Act, the plaintiff is permitted to pursue that collateral challenge.
2. Before dealing with this issue, it should be noted that the amended summons contained no clear or precise identification of the grounds of review relied upon (or to differentiate between grounds relevant to any appeal and those relevant to an application for judicial review), nor did the amended summons identify the nature of the prerogative relief sought - the only order sought was that the decision be "set aside". Given the conclusion I have reached, it is unnecessary to dwell upon or address the extent to which the amended summons was non-compliant with r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW).
3. The existence of a right of appeal, and the exercise of that right, is a discretionary ground for refusing prerogative relief: Meagher v Stephenson (1993) 30 NSWLR 736, 738-739 ('Meagher'); Hill v King (1993) 31 NSWLR 654, 659 ('Hill'); Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8] ('Sasterawan'). That is because, ordinarily, judicial review should not be permitted where an alternative remedy is available. In those cases, it has been suggested that it may be an abuse of process to maintain an application for leave to pursue a statutory appeal and to maintain an application for judicial review, particularly where the reason for the collateral challenge involves an attempt to bypass the requirement for leave: Meagher at 738-739; Hill at 656; Sasterawan at [8].
4. The plaintiff's written submissions did not address the permissibility of the concurrent approach, nor seek to explain the basis for pursuing it with the appeal.
5. When the issue was drawn to the attention of the plaintiff during the course of oral submissions, the applicability of the principles set out above was accepted and the submission was made, without elaboration, that the Court should exercise its discretion to permit the dual approach to occur. There was no suggestion, by way of example, that the taking of concurrent steps was because there was some doubt as to the jurisdiction of this Court (as to which see Fordham v Fordyce (2007) 154 LGERA 49; [2007] NSWCA 129 at [47], and the cases there cited; Sasterawan at [8]).

Ground 1: the alleged error in connection with the absence of cross-examination of the plaintiff's legal representatives

Introduction

1. This "ground" of appeal is expressed in the amended summons as follows: 1. The learned magistrate erred in dealing with the contention that the [plaintiff] had been provided with incorrect legal advice.
2. In my view, this ground fails to explicitly identify (or even identify) a "question of law alone", as required by Part 51B, r 8 of the SCR and as discussed in the authorities referred to in [88] above, including Ferella at [6] and [22] and Schwartz at [13].
3. The plaintiff, in the written submissions filed, identified the "error of law alone" in these terms (plaintiff's submissions at 84): … whether an applicant on a plea traversal application is precluded from making a submission that advice provided by a lawyer was wrong in a material respect unless the lawyer is called in evidence and confronted with the submission or alternatively whether such a submission in such circumstances should be given limited or no weight.
4. As to the 'phrase' used by the plaintiff - the "error of law alone" - it should be noted that neither s 52(1), nor s 53(3)(b) of the CAR Act, uses this language but rather (relevantly) restricts the appeal against the conviction or interlocutory order to "a ground that involves a question of law alone". Further, as earlier noted, the authorities have established that a question of law is not equivalent to an error of law.
5. It is worth observing that the plaintiff identified essentially the same issue as one involving a question of mixed law and fact (what the plaintiff described as an "error of mixed fact and law": plaintiff's submissions at 84). The "[e]rror of mixed fact and law" was identified in these terms: The learned magistrate erred in finding that the applicant was precluded from making a submission that advice provided to him was wrong in a material respect because he did not cross examine [the solicitor] or call and cross-examine [counsel] or alternatively erred in giving limited or no weight to the submission in such circumstances.
6. The plaintiff also argued, as part of the application for judicial review, that the Magistrate constructively failed to exercise jurisdiction to "consider, assess and give weigh[t] to the correctness or incorrectness of the advice given" by reason of the absence of cross-examination (plaintiff's submissions at ). That can be put to one side, given I have declined that application.

The (argued) question of law alone

1. The plaintiff's argument, said to give rise to an appeal against the order on a ground that involves a question of law alone, relates to the manner in which the Magistrate dealt with the issue about the legal advice that the plaintiff received prior to the making of the pleas. The specific complaint is that the Magistrate "erred" by proceeding on the basis that if the plaintiff "sought to make a submission that legal advice provided to him… was wrong, the lawyers would need to be called in evidence and those matters would need to be put to the lawyers in cross-examination" (plaintiff's submissions at [85]).

Discussion and consideration

1. Given the plaintiff's argument relates to the manner in which the Magistrate dealt with the issue about "legal advice" and the suggested need to cross-examine the plaintiff's legal representatives, it is appropriate to turn to the reasons of the Magistrate. These have been summarised earlier (see [22], above), but the key passage, to which the "ground" is directed, is as follows (CB 199.12-199.20, 199.26-199.38): The nature and extent of the legal advice I think is against the application. There was lengthy and comprehensive advice according to Mr Tlais. The onus of proof is on the accused and there was no suggestion in cross-examination of the solicitor that that full and frank and fearless advice was not given or that it was wrong, or misconceived and the barrister was not called either or had any criticism put to him and his notes were not provided. As I said, the onus is on the accused to demonstrate that something happened in the process of giving the advice and obtaining the plea that it is in the interests of justice to permit its withdrawal… I do not think there is any impropriety, I do not think there is any imprudent or inappropriate advice. Some time was given to the question of whether there is a real question about the guilt, I accept there might be a question, it might be a real question. I cannot embark on that with the material that I have. All that was really put was that some of the advice may have been overstated in that one or perhaps three of the occasions in which the CCTV footage captured what happened involved the cards being visible so that presumably in many of the cases that level of evidence is not available. The suggestion is that perhaps the advice was overly pessimistic because of a misunderstanding on that point. That is a factual matter that will have to be determined. I accept that there might be some prospect of fighting this case, that there is a barrister here who says that, but I do not think I can make a finding about how strong that real question is.
2. The focus of the plaintiff's challenge was upon the first passage. This was argued to raise the "error of law alone", as identified in [99], above.
3. Before dealing with the plaintiff's submission, two matters about these reasons warrant emphasis. The first is that the structure of the reasons makes clear that in the passages extracted at [105], above, the Magistrate is addressing two issues from the decision in White at [65] - namely, the "nature and extent of legal advice received by the accused before entering the plea" and later, in the second paragraph extracted, "whether the accused has been persuaded to enter a plea by reason of imprudent and inappropriate advice tendered by his… legal representatives". The focus of the plaintiff's challenge to the Magistrate's reasons (the "error of law alone", as earlier set out), is upon the Magistrate's reasons in the first paragraph extracted at [105], above. The second matter relates to the manner in which the Court should scrutinise these reasons in the context of a challenge such as this. As the defendant submitted (a submission that the plaintiff did not contest), the reasons should not be picked over minutely with an eye keenly attuned to error and that proper allowance must be made for the fact that his Honour's reasons "constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court": Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15] ('Illawarra Cashmart'); Acuthan v Coates (1986) 6 NSWLR 472, 478-479.

Ground 2: alleged uncertainty in the 'principles' applied by the Magistrate

Introduction

1. This "ground" of appeal is expressed in the amended summons as follows: 2. The learned magistrate applied an incorrect test in determining whether the plaintiff should be permitted to withdraw pleas of guilty to sequences 1, 2, 6, 7 and 8.
2. In my view, like ground 1, this ground fails to explicitly identify (or even identify) a "question of law alone", as required by Part 51B, r 8 of the SCR and as discussed in the authorities earlier referred to.
3. The plaintiff, in the written submissions filed, identified the "error of law alone" (I have noted in relation to ground 1 the error in that approach: see [100] above) in these terms (plaintiff's submissions at 91): … where on a plea traversal application a magistrate considers that there may be a real question as to an applicant's guilt, should the plea traversal be granted absent other grave or weighty circumstances… Where a magistrate correctly stated the applicable principles but applied them incorrectly, that will raise a question of mixed fact and law as opposed to a question of law: R v PL (2009) 199 A Crim R 1999; [2009] NSWCCA 256 at [26]; Plassas v Person [2016] NSWSC 1445 at [19]. In the present case, it is contended that it is not clear what principles the magistrate was applying and it is open to consider this matter as a question of law alone.

Discussion and consideration

1. The plaintiff sought to argue this ground by a number of submissions. Unfortunately, those submissions did not attempt to make clear which of those were advanced to support the question of law alone, or which were advanced to support the other ways in which error was argued - for example, "[e]rror of mixed fact and law".
2. In my view, no question of law alone is raised by the substance of what the plaintiff sought to argue as the basis for this ground of appeal and, further, I do not consider that any error of the kind alleged was committed by the Magistrate. That is for the following reasons.
3. First, the plaintiff submitted that it was "not clear what principles the magistrate was applying", with the consequence that it was "open to consider this matter as a question of law alone" (plaintiff's submissions at 91). I do not accept that submission.
4. In my view, contrary to what was submitted, it is perfectly clear what principles the Magistrate applied. The Magistrate identified that the decision in White set out the relevant principles that apply (CB 196.43): The Court of [Criminal] Appeal have recently given a decision in the case of White v The Crown [2022] NSWCCA 241 in a joint decision in which their Honours held that the proper test to be applied where an accused seeks leave to withdraw a guilty [plea] prior to conviction is whether the interests of justice require that course to be taken… … Their Honours provide a non-exhaustive list of factors which effect the interests of justice. At paragraph 65 there is about 15 of them; and it governs many matters…
5. Secondly, thus, even if (as the plaintiff submitted) the Magistrate correctly identified the "applicable principles but applied them incorrectly", then at most, the plaintiff has raised a question of mixed fact and law, and not a "question of law alone" because that process "necessarily encompassed an assessment of the facts": R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 at [26] ('PL'). No appeal therefore lies in those circumstances under s 53(3)(b) of the CAR Act.
6. Thirdly, the plaintiff submitted both in written and oral submissions that the test set out in White was somewhat more "nuanced", and that where "there may be a real question as to an applicant's guilt", that should result in the "plea traversal be[ing] granted absent other grave or weighty circumstances" (plaintiff's submissions at ). I do not accept this submission.

Ground 3: alleged inadequacy in the Magistrate's reasons

Introduction

1. This ground of appeal is expressed in the amended summons as follows: The learned magistrate failed to provide adequate reasons for the decision to refuse the plaintiff's application to withdraw pleas of guilty to sequences 1, 2, 6, 7 and 8.
2. The plaintiff, in the written submissions filed, identified the "question of law alone" as follows (plaintiff's submissions at 96): Is it permissible for a magistrate deciding on an application to withdraw a plea of guilty to simply identify a list of factors (which point in different directions and may have different weight) and then identify a decision without providing reasoning as how the competing considerations are balanced and what weight is attached to the factors…
3. The ultimate submission of the plaintiff was that the Magistrate "has not (sic) erred and, in the alternative, has not performed the jurisdictional task. The reasons leave unclear how the decision has been reached and does not address the real issues in dispute" (plaintiff's submissions at [104]).

Discussion and consideration

1. The plaintiff argued that the "question of law is formulated sufficiently in the abstract to amount to a question of law alone consistency (sic) with principle" (plaintiff's submissions at 96). Nevertheless, the plaintiff conceded, during the course of submissions, that whether a Magistrate has given adequate reasons is a question of mixed law and fact.
2. In my view, given the plaintiff's acceptance that the ground involves a mixed question of law and fact and the fact that any appeal under s 53(3)(b) of the CAR Act is confined (amongst other matters) to one involving a question of law alone, this ground must be dismissed.
3. Separately, I consider the question posed to be somewhat problematic because the issue sought to be raised involves a broadly expressed attempt to prescribe some formula that determines what might constitute legally sufficient reasons and also tends to assume that the reasoning suffers from a range of shortcomings. In this last respect, there is an issue about whether the question of law alone posed is in terms separate from the circumstances of the particular case in the sense discussed in the authorities referred to in [89]-[90], above. The form of the question of law alone raised was not addressed during the course of submissions, albeit that the defendant contested that a question of law alone had been raised; rather the parties focused upon whether the reasons themselves were sufficient. Had it been necessary to resolve this issue (as I shortly explain, I do not accept the plaintiff's complaints that underpin this ground of appeal), my finding would have been that this question does not properly raise a question of law alone.
4. In any event, I do not accept the plaintiff's submissions that the reasons of the Magistrate were legally insufficient in connection with the "weight" arguments, nor do I accept that, ultimately, the reasons "leave unclear how the decision has been reached".
5. Dealing first with the issue of "weight". The thrust of what was argued by the plaintiff in aid of the question raised is that the reasons were legally insufficient: the submission was that the reasons do not identify "what weight is given" to material, or how "differing factors are balance (sic) and to be weighed" and that that "critical integer or reasoning is missing" (plaintiff's submissions at [102] and [103]). The plaintiff sought to illustrate the alleged shortcoming in connection with "weight" in a number of ways. By way of example: 1. The plaintiff was critical of the finding made by the Magistrate "that there was a formality in the plea by having the barrister stand up and enter that plea in Court with him present" (CB 199.1-199.3). The plaintiff's criticism of the Magistrate's reasons was because the Magistrate did not state "what weight is given to that factor and how that would differ from any other case" (plaintiff's submissions at ). In my view, there is no substance to this complaint. That finding was directed to the factor referred to in White at [65] as "the circumstances in which the plea was given". That finding is unremarkable, and it is not incumbent upon a Magistrate to then explain, as the plaintiff submitted, how that would differ from any other case - say, an unrepresented accused entering a plea - nor is there a requirement to then separately assign, and explain the reasons for assigning, "weight" to that finding. It was certainly open, for the Magistrate to do so, but it was not a pre-requisite in order for there to be legally sufficient reasons, as the plaintiff argued. 2. The plaintiff was also critical of the Magistrate finding that there was "possible prejudice" to the Crown, notwithstanding the Magistrate also found that that was a "somewhat weak factor" (plaintiff's submissions at ). The basis for this criticism is, in my view, unclear: the Magistrate has made a finding that there was some possible prejudice, but plainly discounted by the further finding that it was a "somewhat weak factor". That further finding dealt with "weight". Nothing more was required, in my view. 3. The plaintiff emphasised that "there might be a real question of guilt". I have earlier addressed the substance of this submission (see [135]ff, above). As earlier noted, the Magistrate, however, was unable to make a finding about "how strong that real question is". In my view, the Magistrate was not required to then separately assign "weight" to this issue. The position is not otherwise because, as the plaintiff argued, the plaintiff gave "unchallenged evidence" that he was not guilty of the offences. It is, as the defendant essentially argued, clear that the Magistrate engaged with this issue and proceeded on the footing that there was an issue about the guilt of the plaintiff (necessarily including the assertion by the plaintiff that he was not guilty) but that finding was qualified by the further one made - namely, that the Magistrate did not "think I can make a finding about how strong that real question is".

Ground 4: failing to take into account "all relevant considerations" and legal unreasonableness

1. This ground of appeal is expressed in the amended summons as follows: The learned magistrate erred in failing to take into account all relevant considerations and/or acting legally unreasonably in refusing to permit the [plaintiff] to withdraw his pleas of guilty to sequences 1, 2, 5, 6, 7 and 8.
2. This ground is, like the other grounds in the amended summons, non-compliant with Part 51B, r 8 of the SCR and as discussed in the authorities referred to in [88] above.
3. There are other difficulties that compound the generality with which this ground of appeal is expressed. The plaintiff, in written submissions, advanced this ground as being one involving error of mixed fact and law or jurisdictional error, although there are no clear statements, less still precise identification, of the error that is alleged to have been committed: the written submissions of the plaintiff identified the error as being that "the learned magistrate failed to take into account all relevant considerations; and/or the decision was legally unreasonable" (plaintiff's submissions at [105]). Further, the written submissions of themselves did not seek to differentiate which submissions were directed to what was said to be the "error of mixed fact and law" or the alleged jurisdictional error.
4. In relation to the former, an error of that kind is not within s 53(3)(b) of the CAR Act. In relation to the latter, this complaint, to the extent that it suggested that the decision of the Magistrate was legally unreasonable, was not meaningfully developed during the course of submissions beyond a general assertion that that was inevitably the only conclusion that could be reached and, to the extent that this ground turned upon the failure to take into account relevant considerations, this was confined during the course of submissions to the suggested error of the Magistrate in failing to take into account "the evidence of the [plaintiff] and the charges" (T 43.31).
5. The submissions of the plaintiff cited a body of authority and principle identifying the requirement that a decision-maker may, depending upon the terms of a statute, be obliged to take into account a matter arising under that statute (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 - plaintiff's submissions at [106]) and, in the context of legal unreasonableness, that in determining the "boundaries of the area of decisional freedom", it was "necessary to construe the relevant statute" (citing, amongst other authorities, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 - plaintiff's submissions at [112]). In respect of both grounds, the plaintiff emphasised that they were both "based on the common law principle of statutory construction" conditioning the exercise "of a discretionary power conferred by statute or the performance of a statutory power of (sic) duty" (plaintiff's submissions at [110]). The materiality of these matters was not developed during submissions.

Introduction

1. Whereas grounds 1-4 concern the pleas of guilty to the fraud offences, this sequence (and ground of appeal) involves the plaintiff's conviction for the offence under s 351A of the Crimes Act, being the offence of recruiting a person to engage in criminal activity.
2. Section 351A(1) of the Crimes Act provides: A person (not being a child) who recruits another person to carry out or assist in carrying out a criminal activity is guilty of an offence.
3. The phrase 'criminal activity' is defined to mean "conduct that constitutes a serious indictable offence": s 351A(3) of the Crimes Act.

The plaintiff's ground of appeal

1. This ground of appeal is expressed in the amended summons as follows: 5. The learned magistrate erred in finding that the prosecution could or did establish sequence 5 and/or in convicting the [plaintiff] on sequence 5.
2. This ground, like all earlier grounds contained in the amended summons, fails to comply with Part 51B, r 8 of the SCR and the requirements discussed in the authorities referred to in [88] above.
3. The written submissions identified "a matter of law alone" (as earlier noted, s 52(1) of the CAR Act refers to an appeal against a conviction "but only on a ground that involves a question of law alone") as follows (plaintiff's submissions at 123(i) and (ii)): (i) Can a Court in a contested hearing proceeding - and not in a sentencing proceeding - treat an unsigned Form 1 document as amounting to 'admissions inherent in [an] acceptance of guilt'. (ii) Is it correct to say in relation to an offence of recruiting persons to engage in criminal activity contrary to s 351A of the Crimes Act that there is no requirement that the conduct the subject is recruited to engage in amounts to a criminal offence.
4. The plaintiff also argued "[a]s a matter of mixed fact and law or alternatively as a matter of fact" (plaintiff's submissions at 123): Was it open for the Court to find the charges proved.
5. The broadly expressed alternative formulation of the "ground" appears to reflect the different ways in which the plaintiff can appeal to this Court: as of right under s 52 of the CAR Act (an appeal against the conviction "but only on a ground that involves a question of law alone") or by leave under ss 53(1)(a) and (b) of the CAR Act (an appeal against the conviction "on a ground that involves a question of fact" or "a question of mixed law and fact"). The plaintiff's submissions, written and oral, did not however attempt to distinguish between the alternative ways this ground was put.
6. Irrespective of whether the appeal is as of right, or by leave, the underlying complaints raised by the plaintiff were argued to involve the same two issues. The first issue relates to what is argued to be the erroneous use of the Form 1 by the Magistrate when dealing with this offence (the "Form 1 argument"). The second issue relates to the "criminal activity" referred to in s 351A(1) of the Crimes Act - in particular, whether, as the plaintiff argued, there is a "requirement that the conduct the subject is recruited to engage in amounts to a criminal offence" (the "criminal activity argument").

Sequence 5 and the reasons of the Magistrate dated 30 June 2023

1. Sequence 5 involved the offence under s 351A of the Crimes Act. The CAN provided: Recruit other to assist in carrying out criminal activity between 6:00 pm on14/08/2020 and 9:00 am on 09/09/2020 at Sydney. That [the plaintiff] between 1 December 2019 and 1 March 2020, at Sydney in the State of New South Wales, did recruit Wan Chin LAM, other, to carry out or assist in carrying out a criminal activity, to wit, dishonestly obtain financial advantage etc by deception.
2. The parties accepted that there were three elements to the offence of recruiting a person to engage in criminal activity contrary to s 351A(1) - namely: (i) the plaintiff recruited (that is, counselled, procured, solicited, incited or induced) another person; (ii) to carry out or assist in carrying out a criminal activity; (iii) the criminal activity constitutes a serious indictable offence.
3. I have, earlier, noted that the trial in connection with sequence 5 was confined in the Court below to one issue, being whether (as the plaintiff alleged) he was "recruited" by Andy and Alex or whether (as the prosecution alleged) the dealers were recruited by the plaintiff. Thus, the contest was about, and only about, the first element of the offence - specifically, "who recruited who".
4. The submissions of the parties in this Court principally focused upon specific parts of the Magistrate's reasons that dealt with what was described by the Magistrate as "proof of the element of serious offence". The key passages, argued by the plaintiff to demonstrate the errors relied upon, were (CB 261.28-262.20): Third, proof of the element of serious offence. The evidence of Andy was that the [plaintiff] recruited him to engage in a scheme whereby he would look at and communicate the card sequence to the [plaintiff], who would then bet on the hand in which those cards were displayed. Counsel [for the plaintiff] cross-examined Andy to the effect that it was he who recruited the [plaintiff] for that purpose, not the other way around. Counsel [for the plaintiff] put to Andy that he knew it was cheating. I accept Andy's evidence that he was recruited by the [plaintiff] to look at cards and communicate them. Whilst Andy was of the opinion it was [not] cheating because the information was of no use to the [plaintiff] the fraud allegations were resolved by pleas of guilty or acceptance of guilt on all charges bar one, which was withdrawn… The admissions inherent in the acceptance of guilt are a more reliable indicator than - than Andy's lay opinion of whether the scheme was to commit the offence of obtaining dishonest advantage. They also accord with common sense. Tra[ining] a dealer for months to peak at cards and communicate them to a gambler and paying for the information… does not appear honest. I infer it was done to get a financial advantage in the… context of betting cards at a casino. Any doubt that might have been engendered by the fact that the police did not lead more evidence on this topic is dispelled by the fact that they were dissuaded from doing so based on an agreement with counsel based on the pleas of guilty and the acceptance of guilt… … The elements of the offences, including dishonesty, have been admitted. The submission of the [plaintiff] is that I cannot take the pleas, the indicated pleas, or the agreed facts into account, and the prosecution have not proved the dishonesty element of the offence, but I reject that submission. The statement by counsel in Court that the [plaintiff] has accepted his guilt on the elements of the charges and the way in which the prosecution conducted its case thereafter prevents the [plaintiff] from submitting that there was no dishonesty. The dishonesty was accepted. The hearing proceeded on that basis…

The challenge to the use of the Form 1: the "Form 1 argument"

Introduction

1. The argument for the plaintiff was that, in "reasoning to guilt" in connection with this offence, the Magistrate impermissibly used the unsigned Form 1 document as amounting to "admissions inherent in [an] acceptance of guilt" and that it "cannot be used as an admission against an accused person in a contested hearing on liability" (plaintiff's submissions at [128]). The plaintiff submitted that, in consequence of the use of the Form 1 in that way, the Magistrate "has erred as a matter of law alone" (plaintiff's written submissions at [129]).
2. The written submissions of the plaintiff did not identify where, in the reasons of the Magistrate, this error was argued to be evident and, further, in what specific respect(s) the Magistrate is said to have impermissibly used the Form 1. The argument that was advanced during submissions was that although there may have been cheating and dishonesty, the prosecution did not establish that by the cheating and dishonesty, the plaintiff "obtain[ed]… financial advantage". This argument was reflected in a submission to the effect that the prosecution had failed to establish that anything Andy did caused financial advantage because there was no evidence to establish that the communications by Andy to the plaintiff about the sequence of cards permitted the plaintiff "to win the hand" (T 67.45). In this last respect, the plaintiff submitted that the only way in which the Magistrate concluded that there was obtained a financial advantage was the use of the Form 1 being "treated as an acceptance of all of the elements of the offence" (T 68.35). The Magistrate referred to this issue in his reasons as the "dishonesty proof element", and it is convenient to adopt that description in these reasons.

Discussion and consideration

1. During submissions, the plaintiff submitted that the particular part of the Magistrate's reasons which revealed the reliance upon the Form 1 was in the following passage which will, although earlier set out, be set out again for convenience (underlining added - CB 261.35): Counsel [for the plaintiff] cross-examined Andy to the effect that it was he who recruited the [plaintiff] for that purpose, not the other way around. Counsel [for the plaintiff] put to Andy that he knew it was cheating. I accept Andy's evidence that he was recruited by the [plaintiff] to look at cards and communicate them. Whilst Andy was of the opinion it was [not] cheating because the information was of no use to the [plaintiff] the fraud allegations were resolved by pleas of guilty or acceptance of guilt on all charges bar one, which was withdrawn, apparently… The admissions inherent in the acceptance of guilt are a more reliable indicator than - than Andy's lay opinion of whether the scheme was to commit the offence of obtaining dishonest advantage. They also accord with common sense.
2. The plaintiff submitted that it was clear, from this part of the Magistrate's reasons, that the Form 1 had been used in an evidential sense because: (a) the pleas of guilty were in connection with the offending involving the other dealer (Alex), not Andy; (b) the Magistrate distinguishes between those pleas of guilty and those offences for which there was "acceptance of guilt" - which relate to those offences on the Form 1 (that involved the plaintiff and Andy); and (c) the Magistrate then proceeds to accept the "admissions inherent in the acceptance of guilt", rather than "Andy's lay opinion of whether the scheme was to commit the offence of obtaining dishonest advantage".
3. The plaintiff did not rely upon any authority in aid of this ground of appeal, merely the operation of ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was submitted that, in particular, the failure to adhere to the content of the requirements of those sections - notably s 32(4) - invalidated the use to which the Magistrate put the Form 1 for the purposes of this offence.
4. I do not accept the plaintiff's submissions for the following reasons.
5. First, it is important to recall that the plaintiff specifically confined the issues in dispute for this offence. The plaintiff raised, and only raised, the narrow factual issue about the first element of the offence - being "who recruited who": see [11]-[14], above.

The challenge in relation to s 351A: the "criminal activity argument"

Introduction

1. This part of the ground is what I have earlier described as the plaintiff's "criminal activity argument".
2. From the plaintiff's written submissions, the plaintiff's complaint was that the Magistrate "erred in failing to appreciate the different kinds of intention and thus failed to deal with the question of whether what the [plaintiff] engaged Andy to do in fact amounted to a serious indictable offence" (plaintiff's submissions at [136]). The argument was that the plaintiff recruited Andy to engage in an activity - provide him with a sequence of cards - "which could never in fact have amounted to the conduct alleged" (plaintiff's submissions at [134]). That was said to follow because, as argued during submissions, whilst the dealer may be communicating cards to a player, and communicating cards to the player was cheating and not in accordance with the rules, that did not mean "that it was cheating that obtained the financial advantage" (T67.35). It followed that, notwithstanding the plaintiff accepted that there had been deception and dishonesty, there was no basis upon which the Magistrate could conclude that the plaintiff obtained a financial advantage with the consequence that there was not a "criminal activity" within ss 351A(1) and (3) of the Crimes Act.
3. Before dealing with this argument, the following should be noted. Accepting that the ground of appeal is as framed in the plaintiff's written submissions (see [172], above where it is set out), and not as it appears in the amended summons, in my view, that ground of appeal does not involve an appeal "against the conviction…but only on a ground that involves a question of law alone" within s 52(1). That is because the "question" is merely a broad question about the construction and operation of the section without any identifiable link to any consequential question or errors that are said to arise or could arise. It bears that character because there is no doubt that an element of the offence is that the criminal activity constitutes a serious indictable offence. Both parties accepted this, as did the Magistrate. It also bears that character because, given the way the case was conducted, no issue about that element arises.
4. In my view, that is sufficient to dismiss the ground inasmuch as it seeks to invoke s 52(1) of the CAR Act. It was not suggested that, somehow, the broad "question" in the written submissions was otherwise within s 53(1) of the CAR Act.

An extension of time

1. The plaintiff sought an order "extending the time for instituting the present appeal pursuant to r 51B.6(2)(a) and/or r 51.5(5)" of the SCR.
2. Neither party made any submissions about this matter. Some would have been useful.
3. An appeal to this Court under Part 5 of the CAR Act is required to be instituted within 28 days after the material date: Pt 51B, r 6(1), SCR. The time fixed by this rule may be extended by the Court at any time: Pt 51B, r 6(2)(a). A summons for leave to appeal must be filed within 28 days after the material date: Pt 51B, r 5(3). The time fixed by this rule may be extended by the Court at any time: Pt 51B, r 5(5).
4. The summons in this Court was filed on 28 July 2023. The material dates are the date that the Magistrate refused the plaintiff leave to withdraw his guilty pleas (being 24 March 2023) and the date the Magistrate delivered his reasons in connection with sequence 5 (being 30 June 2023: Pt 51B, r 3). The appeal in connection with sequence 5 was commenced within the time required, whereas the appeal in connection with the decision refusing the plaintiff leave to withdraw his guilty pleas is some three months out of time.
5. Given there was no suggestion of any particular prejudice arising, I propose to grant the plaintiff an order extending time.

Costs

1. The plaintiff, in the amended summons, specifically alleged that "an order for costs is not appropriate in the proceedings" and, consistent with this, the written submissions filed did not, in the event that the plaintiff was successful, seek an order for costs nor did the plaintiff accept that, in the event that the plaintiff was unsuccessful, a costs order should be made against him. Notwithstanding these matters, in the written submissions filed in reply, the plaintiff adopted a different position, seeking an order for costs (plaintiff's reply submissions at [44]). The plaintiff did not address the change of position (other than, perhaps, suggesting that the original position was taken because it may have been anticipated that the appeal somehow or in some unspecified way involved a "consent" position: plaintiff's reply submissions at [44]), or indeed make any oral submissions about costs.
2. The defendant's submissions did not address the question of costs.
3. In those circumstances, I do not propose to make any order for costs in favour of the defendant, but will grant the defendant liberty to apply to vary that order to seek an order for costs.

Orders

1. For the above reasons, I make the following orders: 1. Extend the time for the plaintiff to file the summons in this Court until 29 July 2023. 2. In relation to grounds 1-4 and, to the extent required, in relation to ground 5, refuse leave to appeal. 3. Order the appeal, and the amended summons filed 4 March 2024, be dismissed. 4. Make no order as to costs with the intent that each party is to bear his or its own costs. 5. Grant the defendant liberty to seek an order that the plaintiff pay its costs of the proceedings in this Court, such liberty to be exercised by notice in writing to my Associate within seven days, with a view to directions being made in chambers and the question being determined on the papers.

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