R v Bayeh

DECISION 1The applicant, Bill Bayeh, applies under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his conviction and sentence arising out of his pleas of guilty on 2 November 1998 to two charges of conspiring to supply large commercial quantities of cocaine and heroin respectively. The applicant recognises that an inquiry into his conviction would essentially require a grant of leave to withdraw his pleas of guilty. 2The history of the proceedings is set out at some length in the course of a decision by the Court of Criminal Appeal, namely R v Bayeh [2000] NSWCCA 473. It is convenient to refer to that part of the judgment of the Court of Criminal Appeal delivered by Giles JA (with whom James J and Whealy J agreed), dismissing the appeal against sentence :- The 1996 offences 8 Apart from the quantities of cocaine and heroin involved, the facts of the 1996 offences were not in dispute. Before going to the facts, however, it is appropriate to sketch the procedural history of the charges against the applicant. 9 The applicant was arrested at the Police Royal Commission on 18 July 1996. Committal proceedings in relation to the 1996 offences began on 13 January 1997 and ran until 13 March 1997. The proceedings involved, as well as the applicant, other persons alleged to have been co-conspirators. The applicant and the alleged co-conspirators were all committed for trial. 10 The accused was arraigned on 22 August 1997. He entered pleas of not guilty. At a later date 15 December 1997 was fixed for a pre-trial hearing and 9 February 1998 was fixed for the commencement of the trial. 11 The pre-trial hearing began on 15 December 1997. On 18 December 1997 the applicant brought proceedings with respect to certain listening device warrants. On 4 February 1998 judgment was given in his favour in those proceedings. The date for the trial was re-fixed for 18 May 1998. 12 The trial commenced on 18 May 1998. The applicant's pleas of not guilty remained. On 1 June 1998 the jury was discharged. 13 A fresh trial began on 18 August 1998. The applicant's pleas of not guilty remained. On 31 August 1998 the applicant withdrew the instructions of his legal representatives. There were a number of adjournments, and on 23 September 1998 the jury was discharged. 14 A fresh trial began on 26 October 1998. The applicant's pleas of not guilty remained. At the request of the applicant there were more adjournments, ultimately to 2 November 1998. On that day the applicant entered pleas of guilty. 15 The conspiracy was centred on Joshuas' Cosmo Coffee Lounge Restaurant at Kings Cross ("the Cosmo"). The Cosmo was leased by a company of which the applicant, his wife and Roula Kay, were directors. It was managed on a day to day basis by Peter Kay and Roula Kay, and was the base for the supply of cocaine and heroin to drug users. Cocaine and heroin were obtained by the applicant and the Kays from their own sources and supplied by them to a man identified as KX15, for sale by him to the drug users. KX15 made his sales chiefly in the Cosmo but also in the streets in its vicinity, in the latter case by himself or by other persons he employed. KX15 accounted to the applicant for the proceeds of sale of drugs which he supplied and to the Kays for the proceeds of sale of the drugs which they supplied. 16 It was necessary that the drugs the applicant obtained in larger quantities be packaged for sale to drug users, usually by placing them in empty disprin capsules which were wrapped in small coloured balloons. The process was known as "capping up", and was undertaken by the applicant mainly at a unit at Potts Point with the assistance of a number of other persons; capping up also took place at other locations. The packaged drugs would be taken directly to the Cosmo for sale by KX15, or sometimes would be hidden before being taken to the Cosmo as required. 17 Pursuant to warrants, devices were installed at the unit from which recordings of audio and visual transmissions were made over the period April-June 1996. Informers involved in the conspiracy provided information to the police. The sentencing judge was provided with voluminous evidence of the conspiracy, and in particular of the applicant's involvement in capping up at the unit. I have been brief in this description because, as I have said, except as to the quantities of drugs involved there was no dispute over the facts. The judge said, with justification and economy - "There can be in my view, having watched videos, listened to tapes and the evidence presented, no doubt the prisoner was the major player in these conspiracies. He gave the orders, he ordered the drugs, they were mixed under his direction, by he and his employees, and there was no care taken or interest taken in even rudimentary hygiene to in any way protect the users from the drugs where they were mixed, cut and packaged. Large amounts of money found its way into the pocket of the prisoner and even after his arrest the prisoner was still trying to get his share. The conspiracy continued for seven and a half months until the co-conspirator Kay was arrested. These were conspiracies that were entered into by this prisoner as a commercial operation to make money. There is in this case no suggestion that he was in any way feeding his own habit. All that motivated him was greed and he cared not for the misery that he was causing to so many people." 18 The sentencing hearing occupied a number of days spread over some months. At its commencement the Crown tendered a folder of materials, and counsel for the applicant indicated that the facts they revealed were not in dispute save that - "The feature of the Crown case in dispute is in respect of the quantity of drug because it is based on an estimate only, and it varies between certain values assessed by the Crown up to a maximum amount and your Honour would see that in the facts as presented. The prisoner certainly pleaded guilty to the large commercial supply but the question of whether your Honour is satisfied as to which is the appropriate amount is a matter for your Honour. You will have to look at the evidence to be able to assess that. That is the only issue." [The judgment then refers to the Crown case on the question of quantities of the relevant drugs.] 21 A number of other folders of material were then tendered by the Crown, together with videos and photographs. The Crown closed its case. Before the proceedings were adjourned, there was an exchange between the judge and counsel for the applicant - "HIS HONOUR: If I can just at this stage ask you something, what do you say are the estimates that will show that your client is guilty of the offence? HEALEY: It is in excess of, and I have instructions to that extent, in excess of in relation to the cocaine charge, the large commercial quantity, and in respect of the heroin it is in excess of the commercial quantity of 250 grams. It breaks the threshold in respect of both, but I wouldn't want to commit myself to putting exact figures upon it other than to say this, that the prisoner acknowledges that it is in excess of both those figures. It is a matter for your Honour to determine beyond reasonable doubt. ............................................................................. 22 So far as appears, the applicant did not thereafter "put a figure on it". In a later exchange with the judge the applicant's counsel said that he knew it was "a difficult matter to come to some final figure on". 3Before passing to other features of the application, it is pertinent to note that the only ground of appeal advanced before the CCA in relation to the applicant's sentence was that the sentences were excessive having regard to the absence of reasonably precise evidence relating to the quantities of drugs involved in the offences, the attribution of inadequate weight to certain subjective factors and the sentencing pattern revealed by the sentencing statistics for the relevant offences. 4It is also of some relevance to note that the sentences which were not disturbed by the Court of Criminal Appeal for what was described as "the 1996 offences" were, in relation to the large commercial quantity of cocaine, a minimum term of 15 years imprisonment to commence 18 July 1996, expiring 17 July 2011 with an additional term of three years expiring 17 July 2014, and, in relation to the large commercial quantity of heroin, a fixed term of 9 years imprisonment commencing 18 July 1996, expiring 17 July 2005. It follows that the non-parole period has expired and the full term of the sentence expires in approximately 18 months time. 5The basis upon which an application under s 78 may be entertained by this Court is governed by s 79 which provides :- 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. 6The following observations from the decision of Johnson J in Application of Peter James Holland [2008] NSWSC 251 at [5] to [12] are also pertinent to the present application. Part 7 Crimes (Appeal and Review) Act 2001 has its origins in a legislative scheme which was an innovation in New South Wales - it is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151 at 154 [5], 155 [8]. An application under s.78 does not involve a judicial proceeding: s.79(4). In determining such an application, the Court performs an administrative act: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as affecting the conclusion of guilt: Application of Suey at [19]. There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s.79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals ..... . 7I have determined that this Court should refuse to consider the application pursuant to s 79 (3)(a)(iii) and (b), and on the basis that the applicant has not placed before the Court any additional evidence which could be said to raise a doubt or question as to his guilt or sentence. The applicant's submissions contain a number of assertions which are unsupported by affidavit and/or documentary evidence. Those assertions do not constitute evidence for the purposes of the administrative function under s 78.