McGuire v DPP [2001] VSC 11

5. On the hearing of the motion on behalf of the plaintiff, the second defendant, the County Court, did not appear to present argument, adopting the conventional position of abiding the decision of the Court on the application.

8. 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.

11. Young's trial commenced on 15 June, the same date upon which McGuire first saw her new solicitors. On 19 June, that is a date prior to the expected date of the making of the plea, the trial judge was advised by Mr Lewenberg, the plaintiff's new solicitor, that there would be an application for leave to change the plea from guilty to not guilty. On the following day, 20 June, a new senior counsel, Mr Richter, Q.C., appeared on behalf of the then applicant, now plaintiff, instructed by Mr Lewenberg. An adjournment of the plea was sought on the basis that counsel had only just come into the matter and that the plaintiff was in an agitated state. The date for that was apparently fixed for 23 June. On the day before, Thursday 22 June, a verdict was returned in Young's trial. He was acquitted on the most serious of the three charges, the trafficking charge, and found guilty on the two counts of possession. Essentially, he was received a non-custodial sentence, on conditions. On Friday 23 June an application was made by Mr Richter on behalf of the plaintiff for leave for the plaintiff to change her plea of guilty to a plea of not guilty. That matter was adjourned part-heard until 26 June. The learned trial judge, having heard full argument and some evidence, refused the application. It was in respect of that refusal that this proceeding for judicial review was commenced. The further disposition of the matter by the County Court has in fact been postponed pending the hearing and determination of the matter by this Court.

14. At the commencement of the hearing by me of the originating motion and summons thereon, Mr Trapnell, who appeared for the Director raised two preliminary matters. The first of these was an argument that this Court did not have jurisdiction to grant certiorari, at least on the context of an indictable matter being heard in the County Court, and the second, arguably linked to the first, was that the motion should be dismissed because to grant it had the effect of "fragmenting" the criminal process.

17. The trial judge's reasons for rejecting the application to change the plea were recorded in hard copy and form part of the material before me. Neither party suggested that the reasons did not form part of the record for the purposes of any consideration of relief in the nature of certiorari, either on the basis of the decision of the High Court of Australia in Craig v. State of South Australia[1] or, in any event upon the basis that s.10 of the Administrative Law Act for the State of Victoria had the effect of making those reasons part of the record.

20. In deference to the capable argument addressed by both counsel as to these preliminary matters, I shall set out the substance of the arguments. However, I do not intend to proceed beyond that, having regard to the views which I have formed as to whether or not it was open to the County Court judge to form the view that the applicant/plaintiff had not discharged the onus lying upon her to satisfy him that a miscarriage of justice might or ought to occur if the application was not granted. As I say the two preliminary applications were linked because one of the arguments in support of the non-availability of certiorari by way of judicial review, in effect to call up an indictment, is that its effect is to fragment the trial process. Counsel for the Director presented a careful argument against the availability of certiorari under Order 56 on at trial upon indictment, although he accepted that the weight of authority clearly permitted that process as applicable to a County Court hearing on appeal from the Magistrates' Court and, of course, in other contexts involving direct access to the Supreme Court, but not consequent upon an indictment.

23. Mr Trapnell submitted that the trial had commenced with the arraignment and the plea of guilty. Thus, he said, the proceeding in this Court constituted an intervention between the plea of guilty and the processes necessary to be complied with in order to impose a just sentence by the very court before whom the accused was arraigned and pleaded guilty. It must be accepted, however, that there are many interruptions to the trial process although few of them constitute an interruption by application to another court. The courts have discouraged and denied attempts, save in exceptional cases, to challenge rulings as to admissibility and the like to other courts prior to the conclusion of the trial. But the trial process within the court itself will frequently be bedevilled by interruptions planned and unplanned, e.g. remanding not only for sentence but for the purpose of having, say, a psychiatric assessment done. In the course of his submissions, counsel drew a distinction between pre-trial, (that is, pre-commencement of trial) applications which, as I understood the submission, were not argued as constituting the type of disruption that underpinned his submission. Nevertheless, it was accepted that beyond the plea of guilty no other feature of the proceeding had been embarked upon, other than the application to change the plea, the refusal of which has provoked this proceeding.

26. In support of his argument, counsel relied upon Magistrates' Court v. Murphy[2] (a case in which the appeal was dismissed by consent) in which Charles, J.A. reiterated the position that "the High Court has repeatedly warned against interference in the conduct of criminal proceedings". He placed reliance on statements by Kirby P. in Chow v Director of Public Prosecutions[3] in which his Honour had referred to the guiding principle of public interest in the orderly conduct of criminal trials, including the sentence of persons convicted following a plea. The submission made in effect was that the process that should have been followed was submissions on the plea to be heard after the change of plea had been sought and refused, both to be dealt with by a court of appeal on an appeal.

29. 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.

32. This is, to my mind, an arguable matter in the context of the issue of bringing up an indictment. It is clearly, under the aegis of modern authority, incorrect with respect to other avenues of arrival at the Supreme Court under Order 56, e.g. applications after County Court appeals from Magistrates' Court.

35. Intriguing as these arguments are, I do not find it necessary to decide them. They were strongly contested by Mr Tehan although I think it might be said that Mr Tehan, skilfully enough, declined to become enmeshed in this historical analysis, the main theme of which was that the effect of the modern law was that a case of this kind had to await its due process and then, if disagreed with, the issue be taken to the Court of Appeal. It is not necessary to further widen this debate. Mr Tehan relied upon cases such as Frederico[6] and Martin[7] which supported the proposition that certiorari does lie from the County Court in indictable matters. The views of McInerney, J. in McNab are to my mind persuasive about indictable matters, in conjunction with the general undesirability of superior courts interfering with the orderly conduct of the trial process. See Sankey v. Whitlam[8] or, during a trial, Iolano[9]; Hansford v. His Honour Judge Neesham[10]; Rozenes v. Beljajev[11]; Flynn v. DPP[12]; Magistrates' Court v. Murphy[13].

38. Mr Tehan's argument fundamentally was that there was no fragmentation of the ordinary process of trial by virtue of intervention in the circumstances of this case. He argued that this was a case in which the judge's ruling (he arguing that it was an unusual ruling), had denied the plaintiff a trial on a highly contentious basis with serious future consequences for her. He relied upon the statements by McDonald, J. in Flynn which he contended strongly supported his argument as what had occurred struck at the fundamental root of delivery of justice. He argued that the test postulated by Avory, J. in R. v. Ford[14] was applicable and had been fulfilled, that is as to the second of those matters.

41. Some of these matters had a degree of overlap with the issue which, in real terms ought be addressed first, as to whether or not the judge's ruling occasioned any miscarriage of justice. I should say, however, with respect to that aspect, there was no persuasive evidence that the plaintiff did not understand what it was to which she was pleading guilty. I will necessarily address this matter shortly.

44. Thus I now address the correctness or otherwise of the trial judge's ruling to the contrary of the plaintiff's application to change her plea. I commence by saying that although not all of the detail of the reasons that were argued to have impacted on his mind are by any means clear, it cannot be doubted (nor did the County Court judge doubt) that the plaintiff's desire and intention to alter her plea preceded the jury's verdict in favour of Young. This is important because Young got in effect a good behaviour bond on the second and third counts, having been acquitted on the first count. His Honour's reasons in terms of dealing with the detail of the events which had occurred were exemplary.

47. Mr Tehan's submissions and case for his client were jointly focussed on the argument that the findings made must lead to the conclusion that there would be a miscarriage of justice if his client were not permitted to alter her plea. The liberality of his Honour's exposition of facts must, it should be said, lend some support to this submission. Put in a different way, it could be said that his Honour's desire to address all possible facts and conclusions gave opportunity for some of them to be seized upon in diminution of what might otherwise be regarded the main themes of the reasons. Thus, it was said that many of the matters that were referred to by his Honour in the course of a detailed exposition of the evidence amounted to findings of fact. The first thing that might be said is that it is impossible to conclude that a mere reference by his Honour, in his recitation of facts, to matters that might be thought to be "in favour of" the plaintiff by no means leads to the conclusion that he found such facts established. In particular the matters referred to by his Honour in pages 104-109 are, in a general way, conclusion-neutral.

50. But I have no doubt that his Honour was strongly influenced in his conclusion by the fact that, although the desire to change the plea had preceded the actual commencement of the trial against Young, that the plaintiff had already received substantial advice about her plea from not less than three members of the senior bar, and a very experienced junior. His Honour's reasons made some reference to some perhaps unusual behaviour by the solicitor but I cannot think that that proved to be influential on his mind. It cannot be overlooked that the plaintiff in this case had received advice from not only her original solicitors but replacement solicitors. She had received advice from Mr Kent, Q.C. and his junior, some advice from Ms Lillian Lieder, Q.C., and finally advice from Mr Rozenes, Q.C., the former Director of Public Prosecutions for the Commonwealth of Australia, as to her situation. His Honour paid close attention to what the applicant (now the plaintiff) had said in the evidence before him. Part of his recapitulation of that evidence, while paying appropriate attention to her shocked condition, was her belief that she had advice from those counsel. She gave evidence that she had discussed the matter generally with Mr Rozenes but not specifically what she was pleading to. His Honour did not have to accept this evidence. What he did accept, it seems to me, was that she was a disturbed and vulnerable personality but this must be seen in the light of the specific views he formed, and finally expressed, in his rejection of the application to change the plea.

53. It stretches credulity to accept that the plaintiff against whom a most serious charge of trafficking in amphetamines in by no means minuscule quantities had been laid and, having had advice from four Queen's Counsel (Kent, Q.C., Lieder, Q.C., Rozenes, Q.C. and Richter, Q.C., a roll call of vastly experienced and competent criminal practitioners at the higher level), had not had explained to her the nature of the charges laid against her and had not received advice on the basis of which it was open for her to conclude that she ought to plead guilty to the counts laid. I do not for my own part find it helpful to revisit some of the matters considered by the learned County Court judge as to whether or not the plaintiff had in fact made a deliberate decision to plead rather than be caught up in a joint trial in which the prospect of her being "sunk" by the co-accused was influential (not the least because his Honour was unable to reach a conclusion about that speculation). I do pay considerable attention to the fact that at the end of the day she had failed to carry his mind that she would be so disadvantaged by not being permitted to change her plea that a miscarriage of justice ought be concluded.

56. Notwithstanding Mr Tehan's arguments that his Honour misunderstood and misapplied Middap[15], in my view his Honour understood it well enough to occasion no disadvantage to the plaintiff. Indeed, in my view the test that his Honour posed for himself was over-liberal to the applicant for a change of plea than the law allowed. His Honour cited the statement in Middap that "the only question is whether, in the trial judge's opinion, a miscarriage of justice would occur if the leave sought would deny the applicant." The County Court judge took the view, and expressed it specifically, that the appropriate test was "would or might". This is not the language of Middap but I note that the Court of Appeal in Parsons[16] took the view that it would set aside a conviction recorded after a plea of guilty if the Court were of the view that a miscarriage of justice would or might occur if an accused were held to the plea. It may be that the County Court judge's expression of the test would accord more with my own view of the appropriate approach to the matter. However that is not, as I understand Middap, the present law for this application. In any event the plaintiff could suffer no miscarriage of justice if it were incorrect, as his Honour gave her the benefit of a benevolent extension of the language of Middap.

59. 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.

62. His Honour stated the case against her was a strong one, that the probability of conviction of both accused was great, and that the view of the applicant's legal advisers was that she should plead guilty. He also found that she accepted that advice, perhaps reluctantly, perhaps with some emotional distress, but nevertheless accepted it. His Honour also addressed the issue that even on the plea the issue of the level of the quantity (commercial or otherwise) of the amphetamines on count 1 might be in dispute and that if the applicant sought to argue that, despite the plea, the quantity involved on the uncontested view of the evidence did not satisfy the statutory definition of a commercial quantity, it would be open for her to do so. Nevertheless, notwithstanding a careful set of reasons that included every matter that might have been and was raised on behalf of the applicant, his conclusion was that no miscarriage of justice would occur if the application was refused.

65. The burden lay on the applicant-plaintiff to carry the court's mind as to the issue of miscarriage of justice. This was a very experienced County Court judge who considered, to a degree verging on the over-liberal, every matter that might have been raised on behalf of the applicant in support of her application to change her plea. He refused that application in my judgment. It was well within his range of options and discretion to do so. I am unpersuaded that any miscarriage of justice would result if the application were refused. A County Court judge, with the benefit of seeing and hearing the applicant giving evidence, was not prepared to conclude that there might be any miscarriage of justice. This clearly was because he believed, on the basis of a powerful stream of high quality legal advice that she was well aware of the charges laid against her and had decided that she would plead guilty to them in the light of her knowledge of the facts, her knowledge of the evidence against her and the judgment of her legal advisers. This was a matter committed to him for decision and it would appear to me that he made the right decision. See also, as a recent application of the rejection of an application to change a plea, upheld by the Court of Appeal, The Queen v. George Da Costa[17].

68. For these reasons, the application on motion is refused. I will hear the parties on orders and costs.

[1] [1995] HCA 58; (1995) 184 C.L.R. 163.

[2] [1992] V.R. 186.

[3] (1992) 28 N.S.W.L.R. 593, at pp.604-606.

[4] [1980] VicRp 5; [1980] V.R. 41.

[6] [1971] VicRp 51; [1971] V.R. 425.

[7] [1973] VicRp 33; [1973] V.R. 339.

[9] (1984) 8 A.L.J.R. 22.

[11] [1995] VicRp 34; [1995] 1 V.R. 533

[12] [1998] 1 V.R. 322 (McDonald, J. in a detailed and helpful examination of the authorities).

[13] [1997] 2 V.R. 186.

[14] (1923) 2 K.B. 400.

[15] (1989) 43 A.Crim.R. 362.

[16] (1997) 97 A.Crim.R. 267.

[17] [1999] VSCA 111.