McGuire v DPP [2001] VSC 11

[2001] VSC 11

Supreme Court of Victoria|2001-02-06|Before: HEDIGAN, J.

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Source facts

Court

Supreme Court of Victoria

Decision date

2001-02-06

Before

HEDIGAN, J.

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

[2001] VSC 11

[2]

Application for judicial review pursuant to Order 56 of the Supreme Court Rules - General principles applicable. Trial - Application by co-accused to change guilty plea to plea of not guilty - Application refused - Order 56 applying to quash order and permit change of plea - Even if application properly based, no error by trial judge.

[3]

The proceeding before me is the hearing of an amended originating motion commenced pursuant to the provisions of Order 56 of the Rules of this Court arising from the refusal by a judge of the County Court of Victoria of an application made on behalf of the plaintiff Danielle Leigh McGuire, the plaintiff herein, for leave to change her pleas of guilty to three counts on presentment by the Director of Public Prosecutions concerning breaches by her of offences under the to pleas of not guilty. The remedies and relief sought by the plaintiff pursuant to the originating motion in respect of the County Court's refusal of the application for a plea change are four in number: (1) an order in the nature of certiorari that the order and determination of the County Court to refuse be quashed; (2) an order in the nature of prohibition to direct the Court that it not proceed upon the pleas of guilty entered by the plaintiff on arraignment in respect of the three offences on 13 June 2000 upon presentment C9800747.1; (3) an order in the nature of mandamus directing that the County Court provide re-arraignment of the plaintiff. I pause to state that mandamus does not lie in respect of the exercise of a discretionary power by a court. Mr Tehan, Q.C. who appeared for the plaintiff, accepted the correctness of this and it is not necessary for me to refer to the mandamus aspect again; (4) declarations that it would constitute a miscarriage of justice to proceed upon a plea of guilty in the case of the accused not intending to admit guilt or not appreciating the nature of the charge.

[5]

I proceed to give a necessarily abbreviated description of the principal facts that underwrite the application made to this Court. The plaintiff McGuire and one Tyson James Young was jointly presented by the Director of Public Prosecutions on 13 June 2000. They were presented on three charges. The first count in the presentment was a charge of trafficking in a drug of dependence (amphetamines) in commercial quantities. Second, possession of cocaine and thirdly possession of cannabis. The background was that police officers from the Drug Squad had had premises in which Daniel McGuire and Tyson Young lived in Collingwood under observation. They observed a third person (Nicola Dunne) leave the premises. She was apprehended and 500 amphetamine-based tablets were discovered in her possession. She said she had got those tablets from McGuire at the Collingwood premises which she had just left. On the following day at 4.30 a.m. a raid was conducted and at those premises were found 7,500 amphetamine tablets, money, some diaries of the then accused (now plaintiff) McGuire. Both she and Young were charged and remanded in custody until bail was obtained. The plaintiff apparently retained a solicitor named Dwyer. At the committal on 16 December 1998 she pleaded not guilty to all counts, although there was some reference in the material that she reserved her plea. However the County Court judge found that she had pleaded not guilty at the committal. An arraignment was conducted on 29 April 1999. The plaintiff pleaded not guilty to all three counts on that occasion. The trial was fixed for 11 October 1999 and the plaintiff McGuire was represented by Mr Kent, Q.C. and Mr Marron, instructed by Mr Dwyer. The matter was then intended to proceed as a joint trial of both McGuire and Young. However the Crown applied for an adjournment because of the absence of a critical witness, Nicola Dunne. The trial was then fixed for 13 June 2000 and on that occasion McGuire was represented by Mr Rozenes, Q.C. and Mr Marron. The matter come on before the trial judge. The plaintiff McGuire pleaded guilty to each of the three counts on the presentment and Young pleaded not guilty. Mr Rozenes sought an adjournment of the matter in order to make the plea. A limited adjournment period was allowed because of the trial judge's inability to go beyond 30 June and the matter was listed for 20 June for a plea. Shortly after that adjournment it appears that the plaintiff McGuire sought other advice and apparently had contact with an experienced solicitor in this field (not Mr Dwyer) and another member of the inner Bar, Ms Lieder, Q.C. I should state that the plaintiff had a young child for whom she had a duty to care.

[12]

The main feature of Mr Trapnell's argument was that the former writ of error was an essential and key remedy to overcome injustices in respect of indictments in or orders made by inferior courts which arguably created injustice. His argument really was that certiorari would only lie where the writ of error did not lie. Thus his submission was that once the procedure of appeal to courts of criminal appeal was established, the procedure by way of a certiorari could only be used to quash a conviction or order. The superior court was not free to substitute some other sentence until the relevant amendments empowering the appeal courts both in the United Kingdom and here were established. Once an appeal process against the sentence that had been imposed was established, the remedy of a writ of error was no longer a feature of the process. Thus, he argued, the form and function of certiorari was obsolete. He referred to Wright v. Pope [4] as raising the question whether an error of law, if made, could be corrected by certiorari. It was not doubted that once the record of the proceeding were formally made up (as here) and error appeared on its face, that would amount to a proper case for certiorari. His argument was that the dissent of McInerney, J. in Wright v. Pope and articulated later in McNab[5] was correct. His submission was that the writ of error was only for errors of law on the face of the record and there was no error on the face of the record here. The plaintiff was not arguing jurisdictional error nor a denial of natural justice. Essentially this argument was that once courts of criminal appeal were established, the old writ of error was abolished and the procedure by way of appeal supplanted it. Mr Trapnell claimed that the High Court's decision in Craig's Case had the effect of applying common law as it applied to prerogative writs, that is, to orders in the nature of such writs, under Order 56. Thus he submitted that notwithstanding s.10 of the Administrative Law Act, the common law still applied to an Order 56 application and the common law was that if certiorari did not lie in circumstances where a writ of error ought lie, then the law was that, in an indictable matter, no application under Order 56 for error on the face of the record could be made. He was saying that one could not have the record quashed allegedly for error of law on its face; one could only have done that under the old law under a writ of error and when the writ of error was abolished in Victoria it was replaced by an appeal procedure of the Court of Criminal Appeal, or, under the modern legislation the Court of Appeal.

[22]

Mr Tehan seized upon a statement by his Honour that "the most dramatic feature of the case, so far as it emerged from the outline that I have already given, is that the applicant's decision to plead was taken when she did not really understand the nature of the charge that she was facing and to which she was pleading." I have no doubt that his Honour did not reach any conclusion to that effect but was referring to the arguments advanced as to non-understanding. His Honour also referred to what he described as "the rushed" sequence of events leading to the plea. However a reading of the transcript on pages 110-112.5 would, to an impartial mind, amount to no more than the reproduction of the arguments advanced with some comments along the way. By no means all of those statements are helpful to the plaintiff as his Honour clearly expressed the view that the experience of counsel involved led to the conclusion that "the applicant had the advantage of advice from an eminent source". His Honour accepted the law as pronounced in Middap. It appears to be true that his Honour thought the plaintiff was a vulnerable person and that her argument really was that forceful advice overbore her vulnerability. Unhappily for the plaintiff, his Honour rejected most of her evidence on the basis that she was an unsatisfactory witness, although nonetheless an emotional one. He specifically stated that her history of the advice she had been given was to a significant extent improbable stating that it was highly unlikely the advice given was cursory, that counsel's level of expertise was notable nor was it rushed. As to her evidence concerning the sequence of events his Honour stated that "because of its sheer improbability, I cannot accept the full thrust of her evidence that the issue was discussed cursorily" and that "... the strong probability is the reason why events changed between the two dates was that there was an impression in McGuire's advisers of the strength of the case against her, in effect leading to the decision to plead guilty.