JUDGMENT
1 POWELL JA: I have read, in draft the Judgment which has been prepared by Dunford J. I agree with the Orders which his Honour proposes for the disposition of these applications and, subject to the one matter to which I will refer shortly below, I agree with the reasons which his Honour gives for those Orders.
2 In the course of dealing with the applicant's claim to have an Order for costs made in his favour, Dunford J has expressed the view that, in any new trial, the parties will be bound by the ruling given by Luland DCJ following the voir dire examination, and, in so doing has referred to the Judgment of the High Court in Rogers v. The Queen (1994) 181 CLR 251 to support that view. With respect, I would doubt whether the Judgment of the majority (Mason CJ, Deane and Gaudron JJ) in Rogers v. The Queen supra necessarily supports the view expressed by his Honour, if only because the basis upon which that Judgment proceeds was that to permit the tender of records of interview which, at an earlier trial had been held involuntary, and inadmissible, would constitute an abuse of process. However, as it is not necessary for the disposition of these applications that I express a concluded view on the question, I refrain from doing so.
3 DUNFORD J. These are applications pursuant to s5F of the Criminal Appeal Act 1912 for leave to appeal against two interlocutory judgments of Luland DCJ given on 2 December 1997 and 6 March 1998 respectively, the first granting the Crown leave to withdraw its acceptance of a plea of guilty by the applicant to a charge of cultivating prohibited plants and to present a fresh indictment; and the second granting the applicant a certificate under the Suitors' Fund Act 1951, but refusing a stay of proceedings on any fresh indictment until certain of the applicant's costs were paid by the Crown. In order to understand the nature of the applications it is necessary to set out something of the history of the matter.
4 On 25 August 1997 the applicant appeared before his Honour in the District Court at Coff's Harbour and an indictment was handed up charging him with the deemed supply of prohibited drugs, namely cannabis leaf, contrary to the combined effect of ss25(2) and 29 of the Drug Misuse and Trafficking Act 1985, and the cultivation of prohibited plants, namely cannabis, contrary to s23(1)(a) of the same Act.
5 Although it appears the indictment was handed up, the applicant was not arraigned or required to plead but, at the request of his counsel, a voir dire examination was held to determine the admissibility of certain admissions allegedly made by the applicant to police officers. This voir dire examination lasted the greater part of two full days, and on 27 August his Honour delivered a judgment holding the evidence was admissible.
6 Following this, the trial did not proceed immediately, but an adjournment was granted to permit further discussions between representatives of the Crown and the applicant. The possibility of an application to sever the two counts in the indictment was foreshadowed, and subsequently a different indictment was presented charging the applicant with the cultivation of three cannabis plants, plus some others, to the weight of 26.434 kgs. His Honour questioned the form of the indictment, and ultimately a further indictment was presented charging only that the applicant did cultivate a prohibited plant, namely twenty cannabis plants; he was arraigned and pleaded guilty, and the matter was stood over to 29 August on which date an agreed statement of facts dated 28 August, a statement of the principal police witness, a series of photographs and the applicant's antecedents were tendered, a number of character references were tendered and the writers gave oral evidence on behalf of the applicant. The proceedings were then adjourned to Sydney to 10 October 1997, which date was later changed to 24 October. However, on 23 October 1997 a notice of motion was filed on behalf of the Crown seeking orders:
- (a) That the plea of guilty entered at Coff's Harbour District Court on 27 August be rejected; alternatively,
(b) That the Crown be given leave to withdraw its acceptance of the plea;
- That the Crown be permitted to present a fresh indictment;
- Such further or other orders as the Court thinks fit.
7 The statement of facts tendered following the entering of the plea of guilty stated, inter alia, that on 30 April 1997 police with a search warrant went to the applicant's premises at Scott's Head where in a locked room, the keys of which were produced by the applicant from his pocket, they found a large quantity of cannabis which was dry and the majority of which was attached to the stems and suspended from wire, although portions of cannabis "leaf" and "head" were separated from the stem. The cannabis was removed from the room and was later weighed at 26.434 kgs. Also during the search the police located three cannabis plants between 1.2 and 1.6 metres high in a fern house at the rear of the premises.
8 The original indictment had been framed on the basis that the cannabis found in the locked room weighing 26.434 kgs constituted possession of an amount in excess of a traffickable quantity (300 grams) and therefore amounted to possession for the purposes of supply unless the contrary was shown (s29 Drug Misuse and Trafficking Act 1985) and the three plants found in the fern house constituted cultivation. A commercial quantity in respect of cannabis leaf is 25 kgs. As to the final indictment there were no "twenty plants", but the Crown intended to rely on the quantity found in the locked room, being estimated as being the harvest of approximately seventeen plants, which when added to the three plants in the fern house went to make up the twenty plants referred to. A commercial quantity of cannabis plants is twenty five, so the charge to which the applicant pleaded guilty related to less than a commercial quantity.
9 It is necessary to bear in mind that, as these are applications under s5F(3) in respect of interlocutory decisions (not being an appeal by the Attorney-General or the Director of Public Prosecutions), leave to appeal is necessary, and as they relate to appeals against the exercise of discretions by the primary judge, the usual principles relating to appeals against discretionary decisions are applicable; so generally speaking, leave to appeal will not be granted unless the applicant can point to some error of law or mistake of principle concerning the exercise of the discretion: R v Matovski (1989) 15 NSWLR 720 at 723. See also R v BWM (1997) 91 A Crim R 260, R v Alexandroaia (1995) 81 A Crim R 286 at 290.
10 On the hearing of the motion, one issue considered was whether a proper bill had been found in respect of the final indictment. His Honour reviewed the evidence and ultimately found that the finding of the original bill for cultivation was sufficient, the number of plants being a matter of particulars, and that the final indictment being validly signed, it was accordingly valid. There is no appeal against this finding; and therefore no need to consider it further.
11 In the light of the decision of the High Court in Maxwell v The Queen (1996) 184 CLR 501, it was conceded by the Crown that his Honour had no power to reject the applicant's plea of guilty and attention was directed to whether the Crown should be granted leave to withdraw its acceptance of the plea. The Crown conceded that whilst the original charge of supply had not been prosecuted or no billed, in view of the fact that the particulars relied on in relation to the cultivation charge encompassed in part the same cannabis as the supply charge; it would probably be contrary to law to proceed with the supply charge whilst the plea to the later cultivation charge existed, and accordingly the Crown's application for leave to present a fresh indictment was treated as supplementary to the application to withdraw its acceptance of the plea, the intention being to proceed with a charge of deemed supply in respect of the cannabis found in the locked room, which had been the first count in the original indictment.
12 In Maxwell the Court held that the prosecution is entitled, before sentence, to withdraw its acceptance of a plea of guilty subject to obtaining the leave of the court. Mr Byrne SC on behalf of the applicant sought to draw a distinction between Maxwell and the present case in that in Maxwell the indictment had contained a single count, namely murder, and in accordance with s394A, Crimes Act 1900, the accused had pleaded guilty to the lesser offence of manslaughter, whereas in the present case the applicant had pleaded guilty, not to a lesser charge, but to the only charge in the indictment. However, as I understand the judgments in Maxwell, this ruling in no way depended on the terms or effect of s394A; for example, Dawson and McHugh JJ at 515 merely said that that section did not deny such a course, and it was inappropriate to regard the prosecution as bound by its election to accept the plea if the interests of justice required its withdrawal, and Toohey J at 525 described s394A as "a procedural provision".
13 Mr Byrne SC also submitted that Maxwell was distinguishable because it involved the difference between murder and manslaughter which are qualitatively different and involve different sentencing considerations; but the same can be said about the difference between cultivating a non-commercial quantity of cannabis and supplying a commercial quantity of the drug; and whereas the former carries a maximum penalty of imprisonment for ten years and/or a fine of $220,000 (s32(1)(h)) the latter carries a maximum penalty of imprisonment for fifteen years and/or a fine of $385,000 (s33(2)(b)).
14 Maxwell was considered by this Court in R v BWM (1997) 91 A Crim R 260 where, in a passage quoted by Judge Luland in his judgment, Hunt CJ at CL at 263 said:
"In the High Court, the basis upon which leave may be granted to the Crown to withdraw an acceptance of a plea was expressed as being where it is in the interests of justice that the Crown be permitted to do so. It was made clear that different interests were involved in that question, a proposition which was ultimately accepted by the applicant. The interests of justice include the legitimate interests of the Crown, which prosecutes on behalf of the community, as well as the legitimate interests of the accused. The High Court gave examples of situations which would fall within the interests of justice. The legitimate interests of the accused include the prejudice to him by any admissions made - these would include any admissions implicit in the plea itself - which would not have been made if the matter were to go to trial, or the unavailability of any of his witnesses at the time when the trial would proceed. The legitimate interests of the Crown include the situation which arises when the facts tendered on the sentencing demonstrate to the judge that the accused was guilty of the more serious offence originally charged."
15 In granting the Crown leave to withdraw its acceptance of the plea, his Honour noted that the facts clearly showed that only three plants were in fact being grown at the time at the respondent's premises, and expressed the view that it was incorrect to regard the 26.434 kgs of cannabis found in the locked room as the "harvest" of seventeen plants. His Honour noted that his role was not to punish the Crown for mistakes or incompetence but to ensure that the interests of justice are served (thereby echoing what was said by Hunt CJ at CL in BWM at 267), and went on:
"To allow what I consider to be a plea entered on mistaken factual basis by the Crown to stand would result in the respondent being sentenced for what may be regarded as the cultivation of cannabis plants at the lower end of seriousness of such charge as opposed to what may ultimately be proved to be the commercial supply of a very significant quantity of cannabis."
16 His Honour then considered whether there was any prejudice to the applicant by granting leave to the Crown, but having noted the Crown's undertaking not at any future trial to use any admission implicit or explicit arising out of the pleas or any material surrounding the presentation of the indictment previously pleaded to, the plea entered or any circumstances surrounding the presentation of that indictment and the plea thereto, could not see any prejudice to the applicant, including any prejudice relating to the applicant's character witnesses; and accordingly granted leave to the Crown to withdraw its acceptance of the applicant's plea of guilty to the charge of cultivating twenty plants and to present a fresh indictment.
17 In my view his Honour had regard to all relevant considerations and I can see no error in his approach to the exercise of his discretion. In particular, notwithstanding Mr Byrne SC's submissions to the contrary, in the light of the Crown's undertaking, I fail to see how the character witnesses will not be available to the applicant at his trial. They will still be able to say what they knew of his character up to the time of his arrest and whether they consider the allegations consistent with the character of the applicant as they knew him, and in view of its undertaking, the Crown will not be able to cross-examine them by reference to his plea to the cultivation charge.
18 If there is evidence that the applicant was in possession of a commercial quantity of cannabis, and he is ultimately convicted of that offence, he should be sentenced for such offence as he is found to have committed. For him to be sentenced for a different and lesser offence (cultivate twenty plants) which on the evidence available he has not committed, and for facts to support such charge to be artificially and falsely constructed so as to render him liable only to such lesser penalty, would not be in the interests of justice, but would bring the system of justice into disrepute. In this case the facts presented to the Court by consent for sentencing purposes did not match the charge to which he had pleaded guilty.
19 Following delivery of judgment on 2 December 1997 on the application for leave to withdraw the acceptance of the plea, the solicitor for the applicant made an application for costs. His Honour expressed reservations about his power to make an order for costs and reserved on that issue.
20 Subsequently on 6 March 1998 a notice of motion was filed on behalf of the applicant seeking an order that the proceedings be stayed until such time as the Director of Public Prosecutions paid such of the legal costs of the accused as were thrown away "as a result of the withdrawal of the indictment". Although it is not entirely clear, it appears from the affidavit filed in support of the notice of motion that what was being sought was the applicant's costs of the original voir dire on admissibility of evidence as well as the costs relating to the plea on 27 August 1997, the calling of evidence on sentence on 29 August and the hearing of the notice of motion on 14 and 20 November 1997.
21 In his judgment of the same day, his Honour noted that it was agreed by counsel for both sides that the only power he had to award costs was pursuant to the Suitors' Fund Act 1951, but it was submitted on behalf of the applicant that what was sought by the applicant could be achieved by granting a stay of proceedings until the Crown paid the costs said to have been thrown away by the applicant, and reference was made to R v Moseley (1992) 28 NSWLR 735, 65 A Crim R 452.
22 His Honour held that Moseley was distinguishable and that, having no legislative power to order costs of the previous proceedings other than under the provisions of the Suitors' Fund Act 1951, it was not appropriate to have the applicant's costs to date paid by ordering a stay of proceedings, although he expressed the view that the applicant was entitled to whatever costs could be achieved by him because the order granting leave to the Crown to withdraw its acceptance of the plea was not in any way attributable to any fault on his part or that of his legal representatives. Accordingly his Honour did not grant any stay, but granted the applicant a certificate under s6A(1)(c) of the Suitors' Fund Act 1951.
23 Before proceeding further I wish to make two preliminary observations. I can see no basis on which the applicant could be entitled to any costs in respect of the voir dire application heard on 25-26 August 1997; those costs have not been "thrown away" as presumably (and it has not been suggested otherwise) if the same issue of admissibility arises in the trial on the new indictment the parties will be bound by the ruling in his Honour's judgment of 27 August 1997, cf Rogers v The Queen (1994) 181 CLR 251, and in any event the applicant was unsuccessful on his application to have the evidence ruled inadmissible. Secondly, I consider his Honour took a somewhat benevolent view when he said that what had happened was in no way attributable to any fault on the part of the applicant or his representatives. In my view, although the Crown may have been primarily to blame for the situation which developed, a major contributing cause of that situation was the act of the applicant (on the advice of his legal representatives) in pleading guilty for tactical reasons to a charge which he knew he was not guilty of.
24 Moseley was a case where on the morning of the trial (it not having been reached the day before), the Crown applied for an adjournment because the two police witnesses had been diverted to other duties. The trial judge granted the adjournment but ordered the Crown to pay the accused's costs of the day. When the Crown later sought to bring the matter on for trial without having paid those costs, an application was made for a stay of proceedings, and a second judge granted such stay until the costs ordered by the first judge had been paid. Subsequently after a lengthy delay, described as "gross and unexplained", the Crown appealed (as of right) pursuant to s5F(2) of the Criminal Appeal Act 1912, submitted that both orders were invalid, and was successful in such submission, the Court upholding the general rule that in criminal proceedings, subject to certain statutory exceptions, the Crown neither pays or receives costs: Latoudis v Casey (1990) 170 CLR 534 at 557. It was pointed out however at 538 that much the same practical result could have been achieved by the first judge indicating that he would not have been prepared to grant the adjournment unless the Crown voluntarily agreed to pay the costs in question, in which case it would have been up to the Crown to consider how badly it wanted the adjournment. It was also held that, having regard to the general principle referred to above, the power to grant an adjournment or other order on terms conferred by s6, District Court Act 1973 did not in criminal cases extend to granting an adjournment on terms that the costs occasioned by the adjournment be paid by the party seeking the adjournment.
25 It followed that the Crown appeal against the order of the first judge was upheld and, although the second judge's order had been based on a false premise (the validity of the first judge's order), the Court in the special and unusual circumstances of the case exercised its own discretion and modified the second judge's order so that the trial of the accused should not proceed until the accused's costs were paid by the Crown. Moseley was followed by this Court in R v Seebag (unreported - CCA - 16 February 1993) another case concerning an adjournment of a trial on the application of the Crown.
26 In the present case, although an order for costs was sought on 2 December 1997 after his Honour had delivered judgment granting the Crown leave to withdraw its acceptance of the plea; and although senior counsel then appearing for the applicant referred to the applicant's costs on 14 November 1997 (at p 27) and on 20 November 1997 (at p 34), he seems to have assumed that the question of costs would be resolved without any problem, as his submissions were directed rather to the position of the character witnesses. In particular, he did not seek an undertaking from the Crown to pay the applicant's costs. If he had, in the light of Moseley the judge could have taken the Crown's response into account in considering whether to grant the application; and if such undertaking had been given and not complied with, semble that would have justified a stay of proceedings until that undertaking was fulfilled.
27 But no undertaking was sought nor given, and his Honour had no power to make an order for costs either as such, nor as a term of the grant of leave. Consequently he had no power to stay the proceedings until the costs were paid, and there was no error in his refusal of the stay.
28 Having regard to the somewhat unusual issues raised on behalf of the applicant, I would grant leave to appeal, but would dismiss both appeals.