R. v. BOYD [2000] NSWCCA 110

COUNSEL : M.C. Marien (Respondent) G.P. Craddock (Appellant) SOLICITORS : S.E. O'Connor, Solicitor for Public Prosecutions (Respondent) T.A. Murphy, Legal Aid Commission (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Plea of guilty - Appeal - Setting aside conviction on appeal after plea of guilty DECISION : Leave to appeal granted.; Appeal Dismissed.; Conviction and sentence confirmed.

CCA 60736/98 DC 92/31/0553

POWELL JA HULME J DOWD J

JUDGMENT 1 POWELL JA: On 30 May 1994, the Appellant was arraigned before McGuire DCJ in the District Court at Gosford on a charge that, on 23 June 1992, at Long Jetty, New South Wales, he did supply a prohibited drug namely heroin (Drug Misuse and Trafficking Act 1985 s. 25(1)) - reduced to its essentials, the case which the Crown set out to prove was that on 23 June 1992, when searched by Det. Ison, who was accompanied by Det. Richardson, the Appellant was found to have in the left pocket of his jeans a number of small resealable plastic bags containing white powder, which powder, when analysed, was found to contain heroin, the total weight of the powder being 5.81 grams, that being both a trafficable quantity and an indictable quantity. To that charge the Appellant pleaded not guilty. 2 30 May 1994 was the second occasion on which the Appellant had been indicted on that charge. On 1 June 1993, the Appellant had been arraigned before Urquhart DCJ on that charge and, as in May 1994, had pleaded not guilty. Following that plea, the Appellant had been tried before Urquhart DCJ and a jury of 12, the trial proceeding into the fifth day when, the jury being unable to reach a verdict, they were discharged. 3 At the time of the Appellant's trial in 1993, he was represented by Mr. G. V. Bellamy, then a solicitor of this Court of some 21 years standing and, as I am led to believe, a solicitor of some experience with criminal law and practice. 4 In an Affidavit sworn by him and tendered on the hearing of this appeal, Mr. Bellamy deposed that the Appellant's instructions to him throughout the trial before Urquhart DCJ were that he had never been in possession of the heroin said to have been found in his possession and that the drugs had been planted on his person by the arresting police. 5 The transcript of the oral evidence given by Mr. Bellamy on the hearing of the appeal (T.10) records the following, the relevance of which will shortly appear: "Q. And, as I understand it, from what I have seen of the transcript or that part of it, Mr. Boyd's case before Judge Urquhart was he had been 'loaded up'? A. Yes. Q. Loaded up by Dets. Ison or Richardson? A. Yes I think it is. Q. Do you recall when you examined Mr. Boyd in chief in the trial before Judge Urquhart you obtained from him evidence that at the time when he was approached by Det. Ison and Det. Richardson there were a number of other patients around about to go into or having just come out of the methadone clinic? A. Yes. Q. Do you also recall that you sought from Mr. Boyd evidence as to his having spoken to those other people about giving evidence? A. Yes. Q. And were those people Mr. and Mrs. Laird,, Mr. McCorrester (sic) and the O'Sullivans? A. Yes, they sound familiar names. Q. Those are the people who gave evidence at the Royal Commission, were they? A. I wasn't aware this matter was before the Royal Commission until I spoke to counsel."

6 At the time of the trial before Urquhart DCJ, the Appellant was 38 years of age. He was a long-standing drug user and had, so he said, been addicted to heroin on and off for about 20 years. As McGuire DCJ was to record in his remarks on sentence on 31 May 1994, his criminal history contains numerous convictions relating to the possession of drugs as well as a conviction for the supply of heroin, it being apparently accepted that he was not a major dealer but a small time user/dealer who engaged in supply activities to finance his own addiction. At the time of the alleged offence the Appellant was on a methadone course on which, so he said, he had started about 2½ years prior to the trial before Urquhart DCJ. 7 At the time of the trial before Urquhart DCJ, the Appellant was living in a house at Killarney Vale, which was owned by his mother, together with his de facto wife and three children then aged 12 years, 5 years and 18 months. 8 Between June 1993 and 30 May 1994 when the Appellant was arraigned before McGuire DCJ, the Appellant's defacto wife had died, a fact of which the Crown was aware - it seems to have been suggested that the death of the Appellant's de facto wife was drug related. 9 As a result of the death of his de facto wife, the Appellant, who seems at all relevant times to have been "on the dole" or in receipt of some form of Social Security benefit, became the sole carer of his three children. 10 When the Appellant was arraigned before McGuire DCJ, he was again represented by Mr. Bellamy, who in the Affidavit to which I have earlier referred, deposed to the fact that, at that time, the Appellant's instructions to him had not changed. 11 After the jury had been empanelled and McGuire DCJ had made some introductory remarks as to the trial procedure and the respective roles of the jury and himself, the Crown Prosecutor opened the case to the jury and then called as his first witness Det. Richardson. 12 In the light of some of the matters upon which the Appellant relies in support of the appeal, it should be noted that, while in the course of his evidence - both in chief and while being cross-examined by Mr. Bellamy - Det. Richardson gave evidence that, in addition to Det. Ison and himself, two other officers - Det. Sgt. McClelland and Det. Sgt. Eade - from the Drug Unit of the Major Crime Squad North, were part of "the operation" which led to the search and arrest of the Appellant, it was not suggested that either Det. Sgt. McClelland or Det. Sgt. Eade was present outside the methadone clinic at the time of the search and arrest of the Appellant. 13 Det. Richardson was still being cross-examined by Mr. Bellamy when the Court adjourned for lunch on 30 May 1994. 14 It is convenient, here, to pause for the purpose of recording that in the Affidavit sworn by him in support of the appeal, the Appellant deposed (inter alia): "5. I decided to change my plea to one of guilty after I was informed that if I were to enter a plea of guilty to the charge I would not be sentenced to serve a full-time custodial sentence. 6. By the time the second trial occurred my spouse had died. I was the sole carer of our three children, the youngest of whom was 3 years of age. I pleaded guilty from fear of the consequences a full-time custodial sentence would have had for my childrens' welfare."

while in the Affidavit which he had sworn in support of the appeal, Mr. Bellamy deposed (inter alia): "4. The Appellant's wife died before a re-trial could commence. I was aware that the Appellant had the care of 3 small children and that he was very concerned about the childrens' future should he be convicted of the charge and given a full-time custodial sentence."

15 In the Affidavit which he swore in support of the appeal, Mr. Bellamy also deposed: "8. During an adjournment on the first day of the second trial, the Crown Prosecutor raised with me the issue of the appellant receiving a sentence of other than full-time custody should he be willing to enter a plea of guilty. I recall that the Crown Prosecutor told me that should a plea of guilty be forthcoming he would concede that the Judge should sentence the appellant on the basis that he was only supplying friends for the purpose of supporting his own heroin addiction. 9. I cannot now recall whether the appellant was present during this discussion. It follows that I do not remember the Crown Prosecutor guaranteeing a sentencing result. 10. I recall raising the question of a plea of guilty with the appellant. He remained extremely concerned for his children should he be convicted and given a full-time custodial sentence. I recall that the appellant instructed me that he would plead guilty to the charge if he could obtain a sentence of other than full-time custody. 11. At no time throughout the criminal proceedings did the appellant acknowledge to me in any way that he was guilty of the offence."

while the transcript of the oral evidence given by Mr. Bellamy on the hearing of the appeal (T. 9) records the following: "Q. Is it the case that you understood from Mr. Boyd that if his Honour was to indicate a sentence with periodic detention Mr. Boyd may be attracted by such a sentence to plead guilty? A. Yes."

16 In the Affidavit which was sworn by him for the purposes of the appeal, the Crown Prosecutor deposed (inter alia): "3. I have refreshed my memory from the transcript of these proceedings dated 30 May 1994. ……… 4. I do not remember the Appellant, Mr. Boyd, but I do remember a case involving Mr. Bellamy. I knew of Mr. Bellamy before this trial but this was the only matter I ever prosecuted involving Mr. Bellamy. 5. I am able to say that I did not tell anyone what sentence Mr. Boyd would receive. I gave no guarantee to any person on this issue. All my dealings were with Mr. Bellamy. In May 1994 a sentencing indication scheme existed in this State. Mr. Boyd was not technically entitled to a sentence indication as (to the best of my recollection) such requests had to be made at arraignment. 6. The purpose of the request for an in-court sentence indication was to enable Mr. Bellamy and his client to be fully appraised of the available options. I have never spoken to any accused in regard to any possible sentence. My attitude towards sentence, as expressed to Mr. Bellamy, was as stated to Judge McGuire as recorded in the transcript. I have no recollection as to whether I first mentioned the prospect of a plea of guilty to Mr. Bellamy or whether he raised the matter with me. However, it is clear from the transcript that Mr. Bellamy must have informed me of a number of subjective matters as I mentioned the death of Mr. Boyd's wife to Judge McGuire. On the other hand it would not have been unusual for me to ask defence counsel whether there was an prospect of a plea of guilty. The usual practice at Gosford District Court was that at least five trials were listed on each Monday so discussions regarding pleas of guilty were common place (sic)."

17 The transcript of the hearing before McGuire DCJ (T. 33-35) records the following which occurred after the luncheon adjournment and in the absence of the jury: "CROWN PROSECUTOR: Your Honour before the jury comes down, there is a matter that my friend and I have spoken about. I would like to raise at this time if that is suitable to your Honour. HIS HONOUR: Yes. CROWN PROSECUTOR: It is this your Honour that as your Honour is aware, the accused is at this time certainly, as I understand it, concerned in terms of consequence (sic) that might flow with the result of any finding of guilt in relation to this matter. He, as your Honour has heard, lost his wife just after the last occasion this matter was before the court and has three children, including the youngest of whom is about three or four who he looks after now. I understand your Honour that a certain course may well flow but there is a concern in terms of a full-time custodial imposition. A fulltime custodial sentence. The Crown's position your Honour in relation to the matter is that this man has certainly been a long time user who, from time to time in order to support that habit has sold. The Crown's information in relation to the Crown (sic) says were the circumstances surrounding dealings on this day shows that it wasn't a profit motivation but rather, well profit in the sense that he wouldn't have to pay for the own use. By doing what he was doing he would in other words be able to supply himself without having to pay for it so the Crown's attitude that although he has a number of conviction in relation to drug use and he had a matter that was dealt with just I think in the middle of last year which related to 1991 again in was a similar sort of situation where he was found with a little over 5 grams. His Honour Judge Armitage and placed him on a community service order which, as I understand it, is still in vogue. He has not come under police notice since this date of 23 June 1992 and as I say he is at the moment looking after three young children. It is a question of whether your Honour would be prepared to listen further perhaps to this topic and to indicate whether or not a sentence, other than fulltime, and by that I mean either periodic or community service would be within the range rather than a fulltime sentence. Certainly as I understand it, if such was indicated that the fulltime sentence was not on your Honour's mind, then this matter may well be short. Because of the legislation your Honour he was prevented I think from getting an interpretation (sic) of the arraignment because he'd already been arraigned he was prevented from getting an indication or sentence indication under the formal methods of doing it. It wasn't available to him. BELLAMY: Plus of course if it were available in only a one Judge court it means that we would miss out on our trial date for who knows how long. HIS HONOUR: Well I can say this that if he proceeds and if he is convicted and he has prior offences he will certainly go to jail on a fulltime basis. I would say that, but you say that he was precluded from getting a sentence indication."

and then, after some discussion as to the Appellant's criminal history: "HIS HONOUR: Yes well in those circumstances I consider it is a matter that if there is a plea forthwith, I would consider a penalty short of a fulltime custodial sentence. However I want to make it perfectly clear that that may well mean a lengthy periodic detention. I will also make it quite clear, as I said a while ago that if there is no plea and there is a conviction, there is no doubt that there will be a substantial custodial sentence and I have had regard in particular to the fact that he was subject to a recognisance when this offence was committed."

18 The transcript of the oral evidence given by the Appellant on the hearing of the appeal (pp. 5-8) records the following: "Q. You remember after the luncheon adjournment? A. Yes. Q. The Crown Prosecutor raised with his Honour that there had been discussions? A. Yes. Q. You were in court when that was said? A. Yes. Q. And there were discussions during the luncheon adjournment about the possibility of a plea? A. Yes. Q. You spoke to your solicitor about it and your solicitor spoke to you about it - about the possibility of a plea? A. Yes. ……… Q. Do you remember before you actually pleaded guilty before you actually stood up in court and pleaded, that you had a private conversation with Mr. Bellamy, that was after his Honour indicated how he might deal with the matter? A. I can't recall, I suppose I did. You know I would have, yes, I suppose I would have. Q. Because you were in court when Mr. Bellamy said 'My instructions are that the accused will plead guilty'? A. yes. Q. You do not disagree he said that? A. No. Q. And they were your instructions? A. Yes. ……… Q. When you came to stand trial before Judge McGuire you knew you had a chance of being found not guilty? A. Yes. Q. Because the jury on the last occasion could not reach a decision? A. Yes. Q. I suggest to you the reason you pleaded guilty on 30 May 1994 is because you were guilty? A. No. Q. Of that offence? A. No I wasn't guilty. Q. What I suggest you are doing is, following your obtaining information from the Police Royal Commission you believed that if that information had been before a jury that your chances would have increased of being acquitted? A. I could not take the chance of going to court not losing my kids. I could not take that chance. They had just lost their mother so I took the other one. I was given a guarantee, I mean, I took the other choice. Q. You know it was a very serious thing to plead guilty to a criminal offence of supplying heroin? A. Yes. Q. And you had persisted in pleading not guilty up to that time? A. Yes. Q. What occurred when his Honour indicated the sentence that he would hand down if you pleaded guilty is, you thought, well, if that's all that is going to happen, I will plead guilty. That is what happened, isn't it? A. No."

19 In the course of his remarks on sentence on the following day, McGuire DCJ concluded (T. 2-3): "It is my almost invariable practise (sic) to subject those who deal in heroin to full-time custodial sentences, even in cases where they are but small-time dealers. The harm that they do, albeit that they are small-time dealers, is incalculable. The big-time distributor of heroin cannot operate without small entrepreneurs and it must be seen by such would-be backyard, street corner dealers such as Mr. Boyd, that their conduct will attract substantial sentences. I propose, however, in this case to depart from my normal practise (sic), having regard to the subjective matters, in particular the fact that Mr. Boyd has observed his obligations under a Community Service Order and the fact that he has three small children as his responsibility. With some misgiving I will not subject him to a full-time custodial sentence, however, he will serve two years by way of periodic detention".

20 In an Affidavit sworn by him in support of the appeal, the Appellant's present solicitor deposed (inter alia) as follows: "9. In 1995 and 1996 the Royal Commission into the NSW Police Service investigated alleged wrong doings by members of the Gosford Drug Unit. ……… 10. Officers involved in the prosecution of the appellant, namely Officers Eade, Ison, McClelland and Richardson were the subject of investigation and adverse evidence before the Royal Commission. 11. The allegation against Detectives Ison and Richardson, the two police officers whom it was alleged had planted heroin upon the applicant included:"

(There were then set out some six allegations, only two of which were said to involve Det. Richardson, the two occasions being occasions on which it was said that Det. Richardson was present when Det. Ison did something) "12. The applicant understands that Ian Frederick Ison has been committed for trial charged with a conspiracy to act corruptly in the discharge of his duty and with acting with intent to pervert the course of justice (ref. 99/11/1041). The applicant understands that Mr. Ison is to stand trial before the District Court on 8 November 1999. The applicant does not know whether Det. Richardson faces criminal charges."

(On the hearing of the appeal we were informed that Det. Ison is now to stand trial in May of this year. There was no suggestion that any criminal charges had been brought against Det. Richardson.) "13. The applicant gave evidence before the Royal Commission about the circumstances of his arrest, as did Diane Ivy Laird, Robert Peter Laird, Lorne McCorriston and Michael John O'Sullivan. Annexed hereto and marked with the letter 'L' is a copy of the transcript of the Royal Commission that relates to this evidence. 14. Glen Stuart Richardson was also questioned by the Royal Commission regarding this matter. Annexed hereto and marked with the letter 'M' is a copy of the transcript of the evidence given by Officer Richardson. 15. Whilst former Detective Ison and other members of the Drug Squad Gosford Drug Squad were required to give evidence before the Royal Commission about other matters, they were not questioned about the Appellant's case."

(Since it was the Appellant's evidence, both at the trial before Judge Urquhart and in the course of the evidence given by him at the Royal Commission, that the heroin was "planted" on him by Det. Ison, it is curious that, at the Royal Commission, Det. Ison was not questioned about the Appellant's case; that Det. Sgt. McClelland and Det. Sgt. Eade were not questioned about the Appellant's case is hardly surprising since there was no suggestion that either was present at the time when the Appellant was searched by Det. Ison.)

21 Because of the weight which, at first, appeared to be placed on the evidence given before the Royal Commission by the Appellant, Mr. and Mrs. Laird, Ms. McCorriston and Mr. O'Sullivan, I read that evidence with considerable care. Having done so, I make the following points in relation to it:

1. as will be apparent from what I have written above, it was the Appellant's evidence before the Royal Commission that the heroin was "planted" on him by Det. Ison. His evidence was further that, at the time when, so he said, Det. Ison "planted" the heroin on him, Det. Richardson was searching his (the Appellant's) car;

2. none of Mr. and Mrs. Laird, Ms. McCorriston and Mr. O'Sullivan gave evidence which would support the Appellant's allegation that heroin was "planted" on him by Det. Ison;

3. given the case which the Appellant has sought to advance on the hearing of this appeal, some of the evidence given before the Royal Commission (T. 18566-18569) as to what occurred on the hearing on 30 May 1994 before Judge McGuire might be noted: "Q. Your first trial in relation to this charge resulted in the jury being unable to agree? A. Oh, yes, that's correct. Q. At that trial, evidence was called for the defence from a number of witnesses including a person who gave evidence of being outside the methadone clinic at the time of your arrest? A. Yes. Q. Subsequently a second trial was held again at the Gosford District Court? A. Yes. Q. And on that occasion, was the second trial on 30 May 1994? A. Yes, that's right. Q. You were indicted and you entered a plea of not guilty? A. Yes that's right. Q. What happened after that was that Detective Richardson was called in the Crown case and gave evidence? A. Yes. Q. And was cross-examined by your legal representative? A. I don't think he was cross-examined. Oh, yes, he was. He was, yes, he just - I don't know whether - I don't whether the prosecutor - I don't know whether he was cross-examined or he just gave - the prosecutor, you know got his evidence. I can't remember whether my solicitor had started to cross-examine him. Q. In any event, part-way through the examination of Mr. Richardson following the luncheon adjournment did you indicate that you proposed now entering a plea of guilty? A. Yes, I did. Q. Can you explain why you did that? A. Yes. The police prosecutor come to my solicitor and said that if I pleaded guilty, he'll make sure I didn't get a custodial sentence, and like I said, at the time my wife had died and I had the three children on my own, and I didn't want to risk losing it and them having no one to look after them or being split up. So I decided to do it. The jury - most of the jury consisted of old people. I wasn't real confident they'd believe me, you know all older people. The first jury - there were a few young people and I felt confident. This jury, I didn't feel confident with. I thought they were older and I thought they would be more inclined to believe the police than me. Q. Before you entered the plea of guilty, was it explained to you that it represented an acknowledgment by you that the heroin was yours? A. Yes. Hang on, I knew by pleading guilty I was saying, yes, it was mine, yes, yes, but like I said, I had to weigh up everything. I had to weigh up the - the judge said if I went through - after that the prosecutor approached him, he said that if I decide to go through it and I'm found guilty, I'd get two years straight. So I had to weigh that up, you know, being away from my kids for two years after they'd lost their mother, or getting something - he said he'd give me periodic detention, where I was only for a couple of days a week and, you know, he said 'It will be a lengthy one', but I had to weigh that up, anyway. I thought, you know, at the time I thought it was the best thing to do. ……… Q. Mr. Boyd, just taking you to how it came about that there were these discussions that led to the prosecutor asking the Judge in open court for an indication about the attitude to sentence … A. Yeah. Q. … had you asked your solicitor to inquire of the prosecutor whether or not there was some possibility, if you changed your plea, that you might get treated leniently? A. No. Up until that point in the first trial the police seemed to have, I don't know, a genuine dislike for me. I never thought that the possibility of getting a lenient sentence or - you know, I never thought that would come up. At the previous trial and the committal, they'd all been, you know, against me and, you know, I was surprised. They seemed to dislike me and were intent on getting me a gaol sentence. Q. Where did the initiative come from for this discussion that ended up in a form of sentence indication in open court? A. Well, like I said, the prosecutor, come over to my solicitor and me … Q. Had anything happened that day to suggest to you or to make you think why that might have occurred? A. Not really. I think - not really. Detective Richardson - the evidence he gave that morning was contradictory to the evidence he gave in the first trial on a number of points. I don't know whether that had something to do with it. I don't really know. It was a surprise. They just came to me with it. But he was contradictory that morning on a number of points from the first trial, you know. Q. In any event, you say you weighed up the various matters you've … A. Yeah. Q. … explained in your evidence and decided you would enter a plea of guilty."

22 In the light of what the Appellant's solicitor said in his Affidavit concerning Det. Richardson, I think it in fairness proper to record a further part of the Appellant's evidence before the Royal Commission and part of the evidence of Mr. O'Sullivan before the Royal Commission. The transcripts of the Appellant's evidence before the Royal Commission immediately following the passage which I have just set out records the following (T. 18569-18570): "Q. Subsequently, were you spoken to by police from the Professional Integrity Branch? A. Yes, I was, yes. That was over a year later, yeah. Q. So that was some time last year that you were approached by officers from the Professional Integrity Branch? A. Yes, toward the end of last year. Q. When they came to see you, what did they explain was the reason for their visit? A. Apparently, Detectives Ison and McClelland, I think, had done a similar thing to someone else and he'd been to see the police integrity board (sic) and then told them to come and see me, that a similar thing had happened to me. Q. Who is the person you understood put the Police Integrity Branch onto you? A. I could find out his name. I forget his second name, but I could find it. Q. What's his Christian name? A. Michael. ……… Q. So Michael knew that you alleged that you had been set up by these police? A. Yeah, yeah. Q. As you understand it, Michael told that to the police from the Professional Integrity Branch that he was making a complaint about his own treatment? A. Yes. ……… Q. When had you told him that you had been set up by these police? A. I think - I got refused bail when this happened. When it first happened, I got refused bail and I eventually got bail in the Supreme Court, and it was 10 months, I think, until the court - the case went to trial. I think it was during that 10 months I spoke to him about it - before the trial, between the time of my arrest and the trial."

while the relevant part of the evidence of Mr. O'Sullivan (T. 18664-18665) was as follows: "Q. When the police from the Professional Integrity Branch called to see you on the second occasion in July of 1995, after you told them about your own experiences did you mention to them any other people who they might see? A. Yes. Q. Did you tell them about a man named Greg who you believed had been loaded with heroin? A. Yes. Q. Do you know that man's full name? A. Greg Boyd. Q. And are you friendly with Greg Boyd? A. Yes. Q. How frequently would you see Greg Boyd? A. Depends. Sometimes I wouldn't see him for six months; sometimes I'd see him a couple of times a day. Just depends. But I see him, you know, at least once a month. Q. Do you continue to see him with that frequency now? A. No, I seen him last week but other than that, no. Q. Had Greg Boyd given you an account of the circumstances of his arrest? A. No. People at the methadone clinic did. ……… Q. Sir, did Mr. Boyd discuss at any stage the circumstances of what had allegedly happened to him with you? A. Yes; yeah. Q. Did he identify officers who he claimed had loaded him? A. Yes. Q. Who did you understand them to be? A. Det. Ison - that was the only one he mentioned."

23 Before passing from the subject of the evidence given at the Royal Commission, I should note that the evidence of the Appellant was given on 18 January 1996, while the evidence of Mr. and Mrs. Laird, Ms. McCorriston, Mr. O'Sullivan and Det. Richardson was all given on 22 January 1996. The evidence of the persons referred to in the six matters identified by the Appellant's solicitor in paragraph 11 of his Affidavit was given on 5 December, 20-21 December, 1995, 16 January and 23 January 1996. 24 The Appellant made no attempt to appeal from his conviction until October 1998, his delay in so doing being explained by him in the Affidavit which he swore in support of the appeal in the following terms: "8. In October 1998, I applied for legal aid to assist me to have my conviction overturned. My delay in appealing my conviction was as a result of having no financial ability to fund the appeal. It was only when I became aware that the Legal Aid Commission had established a Royal Commission Unit to assist people who had been wrongly convicted that I realised I could still seek leave of the Court to appeal my conviction. Upon receiving advice I signed my Notice of Appeal and Application for an Extension of Time."

25 In the Notice of Appeal, which is dated 18 November 1998, the ground of appeal assigned was "Fresh evidence from the Royal Commission into the NSW Police Service", while in the notice of Application for Extension of Time which was dated on the same day the reason assigned for no notice of appeal having been lodged within time was "Fresh evidence from the Royal Commission into the NSW Police Service". 26 In a form of "Grounds of Appeal" filed on 7 June 1999 before the Appeal and Application were first listed for hearing, the ground of appeal assigned was: "The Appellant's conviction constitutes a miscarriage of justice."

27 The Appeal and Application was first listed for hearing on 14 October 1999 before the Court differently constituted. 28 Although in the course of his evidence before the Royal Commission the Appellant suggested that it was the Crown Prosecutor who had initiated the discussion as to a change of plea and that the Crown Prosecutor had given a guarantee as to sentence - each of which suggestions was contested by the Crown Prosecutor then appearing on the hearing of the Appeal and Application - it was understood that the Appellant would not seek to contend that anything turned on that matter and, accordingly, no Affidavit had been obtained from the Crown Prosecutor who had appeared on the hearing before McGuire DCJ as to what had occurred. However, as, in the course of his oral evidence on 14 October 1999, the Appellant said (inter alia) (t.3-4): "… The Police Prosecutor come to me. I didn't go to him, I was, you know up until that time, I was pleading innocent and fighting the case and then he come to me and said: 'If you nod your head, if you agree to nodding your head, if you agree to this we'll make sure you don't get a custodial sentence' and I said 'How can you give me a guarantee that the judge will go along with this?' And he said he would. He said you know, 'I can give you that guarantee' so I discussed it with my solicitor."

the Court ordered that the appeal and application be stood out of the list and directed that it be placed in the Registrar's next call-over - this so that an Affidavit as to what occurred might be obtained from the Crown Prosecutor who had appeared on the hearing before McGuire DCJ. 29 The Appeal and Application were then listed for hearing before the Court as presently constituted on 24 March 2000, on which day Mr. G. P. Craddock appeared for the Appellant while Mr. M.C. Marien appeared for the Crown. 30 As is apparent from what I have earlier written, each of the Appellant and the solicitor who had appeared for him on the hearing before McGuire DCJ was called to give evidence and was cross-examined. The Crown Prosecutor who had appeared on the hearing before McGuire DCJ was not required for cross-examination on the Affidavit which he had sworn following the Appeal and Application being stood out of the list on 14 October 1999. 31 As what I have earlier written would indicate, the initial basis upon which the Appellant sought to advance the Appeal and Application was the availability of fresh evidence - being the evidence given before the Royal Commission - which evidence, so it was submitted, satisfied the test for admission of fresh evidence on appeal (in the Written Submissions that were filed on behalf of the Appellant prior to 14 October 1999 reliance was placed on the decision of the High Court in Gallagher v. The Queen (1985-1986) 160 CLR 392 and the decisions of this Court in R v. Baartman 30 June 1997 (unreported) and R. v. Hasenkamp 24 February 1998 (unreported)). However, while not completely resiling from that position on the hearing of the Appeal and Application by the Court as presently constituted, Mr. Craddock informed the Court "that essentially the application is based upon the proposition that the plea was not entered into borne (sic) of a genuine consciousness of guilty" (T.11), support for that submission being based, in part, upon an observation in the Judgment of the Court of appeal in England in R. v. Turner [1970] 2 QB 321. 32 That this Court has jurisdiction to set aside a conviction recorded following a plea of guilty is clear enough. In R. Laberti (1991) 55 A Crim R 120 Kirby P (with whom Grove and Newman JJ agreed) said at 121-122: "POWER TO SET ASIDE A CONVICTION FOLLOWING A GUILTY PLEA This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v. Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears: (a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or (b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged; see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26. For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. The attitude rests on the high public interest and the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81."

33 In R v. Sagiv (1986) 22 A Crim R 73, an application pursuant to s.5B of the Criminal Appeal Act 1912 following the refusal of a judge of the District Court to permit the accused to withdraw his plea of guilty, Lee J (with whom McInerney and Campbell JJ agreed) said at 80-81: "There have been a number of cases in regard to withdrawal of a plea both before conviction, and on appeal and the following have been cited here: Foley (1963) 80 WN (NSW) 726; Plummer [1902] 2 KB 339; S (an infant) v. Manchester City Recorder [1969] 3 All ER 1230; Bone [ 1968] Tas SR (NC 19) 194; James [1967] Tas SR (NC 8) 264; Frodsham v. O'Gorman & Anor. [1979] 1 NSWLR 683; Murphy [1965] VR 187; Forde [1923] 2 KB 400; Chiron [1980] 1 NSWLR 218; O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; Durham Quarter Sessions, ex parte Virgo [1952] 2 QB 1; Ingleson [1915] 1 KB 512 and Lloyd (1923) 17 Cr App R 184. The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made where justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence ( O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings."

34 In R. v. Murphy (1965) VR 187 to which Lee J referred in R. v. Sagiv, Sholl J. in part of a passage which was approved by this Court in R. v. Chiron, to which Lee J also referred, said supra at 190-191: "Most of the reported cases can,, it is true, be fitted into the principles formulated in R. v. Forde [1923] 2 KB 400; [1923] All ER Rep 477. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice. They not cover, for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats, e.g. of a fellow accused, or of a police officer, to plead guilty where otherwise he would have pleaded not guilty. In such a case there would, in my opinion, be a miscarriage of justice, unless perhaps the case against him were overwhelming, and there should be a new trial. In the present instance, the applicant's case is that she pleaded guilty because of considerations irrelevant to the actual question of her guilt or innocence, and that she is in fact not guilty. Mr. Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial."

Later, having considered the evidence, his Honour concluded supra at 191 : "If I thought she was probably innocent, and that she pleaded guilty without reference to any consciousness of guilt, but because of a muddled idea that she would thereby keep the child, I should consider her conviction a miscarriage of justice such as this Court should correct by ordering a retrial. But after a careful examination of the depositions and the exhibits and a full consideration of her evidence before this Court I am not satisfied that she did not plead guilty partly if not wholly through a consciousness of guilt. The documentary evidence points very strongly to her guilt. It is not a case, therefore, where a miscarriage of justice has been shown. Rather, it seems to me, much the most probable explanation of her plea of guilty is that it was entered into in the belief that by that course she would minimise as far as practicable the punishment for offences she knew she had committed."

35 In seeking to support his submission that there had been a miscarriage of justice, Mr. Craddock relied, first, upon the matters deposed to by the Appellant in his Affidavit and the evidence given by the Appellant on the hearing of the appeal, and, second, on the passage in the Judgment of the Court of Appeal in England in R. v. Turner supra to which I have earlier referred. That passage in the Judgment of the Court delivered by Lord Parker CJ, so far as is relevant, was as follows supra at 326-327: "Before leaving this case, which has brought out into the open the vexed question of so called 'plea bargaining', the court will like to make some observations which may be of help to judges and to counsel and, indeed, solicitors. They are these: 1. Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be advice in strong terms. This will often include advice that a plea of guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than would otherwise be the case. Counsel of course will emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged. 2. The accused having considered counsel's advice, must have a complete freedom of choice whether to plead guilty. ……… 4. The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused thus depriving him of that complete freedom of choice which is essential …" 36 Although the observation made by McGuire DCJ as to what would occur if the trial were to proceed and the Appellant were to be found guilty may, in the light of the observations of Lord Parker CJ, be regarded as having been unfortunate, I am not persuaded that the Appellant - who bears the onus of doing so - has demonstrated that there has been a miscarriage of justice as the result of the Appellant's plea of guilty having been entered following undue pressure and not because it represented a genuine consciousness of guilt. The passage from the evidence given by the Appellant to the Royal Commission which I have set out above (para. 21 (3)) makes it, in my view, clear that, even before the matter was raised with Judge McGuire in open court following the luncheon adjournment, the Appellant appreciated to the full, first, that if the trial were to proceed there was a very real risk that the jury would find him guilty; and, second, that, if the trial did proceed and he were found guilty by the jury, the probability was that he would receive a full time custodial sentence. The same passage from the evidence given by the Appellant to the Royal Commission also makes clear that before he entered his plea of guilty, it had been explained to him - one assumes, by Mr. Bellamy - that such a plea represented an acknowledgment by him that the heroin which was said to have been found on him was his; and, second, that, having weighed up the various matters to which he had referred in his evidence, he nonetheless decided he would enter a plea of guilty. In these circumstances, it seems to me that the entry of that plea ought not to be regarded as something which had been induced as the result of undue pressure but rather ought to be regarded as a voluntary act on the part of the Appellant. 37 Nor would I regard what has been put forward as fresh evidence as justifying granting the Appellant leave to withdraw his plea and upholding the appeal. In this regard, I note the following:

as will be apparent from what I have earlier recorded, the evidence which Mr. and Mrs. Laird, Ms. McCorriston and Mr. O'Sullivan were able to give was not only known to the Appellant prior to the hearing before McGuire DCJ but had been given on the hearing before Urquhart DCJ and was available to be given if the hearing before McGuire DCJ had in fact continued;

in any event, what I have earlier recorded demonstrates the evidence of those four persons, while dealing with some of the events which occurred on 23 June 1992, did not deal with the search said to have been conducted by Det. Ison and Det. Richardson or what was said to be the finding by Det. Ison of the heroin;

the Report of the Royal Commission would appear to indicate that the allegations made by the witnesses Manning, GDU2, Munro and Puntigam concerning Det. Ison were all denied by Det. Ison;

although the allegations made by the witness GDU2 in the evidence given by him to the Royal Commission tended to implicate Det. Richardson in two of the matters alleged by GDU2 against Det. Ison, it would appear that, in a statement made to the Independent Commission Against Corruption in January 1993 in relation to the allegations made by him concerning Det. Ison, he made no reference to Det. Richardson being present at the time and that he did not make any suggestion of impropriety on the part of Det. Richardson;

whatever may have been the allegations against Det. Sgt. McClelland or Det. Sgt. Eade made in the course of evidence given to the Royal Commission, the fact is, as I have earlier recorded, that neither Det. Sgt. McClelland nor Det. Sgt. Eade was said to have been present at the time of the search of the Appellant and his car carried out by Det. Ison and Det. Richardson on 23 June 1992.

even if the allegations subsequently made to the Royal Commission by the witnesses Manning, GDU2, Munro and Puntigam had been known to the Appellant at the time of the hearing before McGuire DCJ, the certainty is that those allegations, if put to Det. Ison and Det. Richardson in the course of cross-examination, would have been denied by them and it would not have been open to the Appellant to tender the evidence of those witnesses to counter that denial. 38 Even if the allegations made by the witnesses Manning, GDU2, Munro and Puntigam could be regarded as fresh evidence which, following the verdict of a jury brought in at the end of a fully contested trial, might justify the upholding of an appeal from that verdict and the making of an order for a new trial, in the present case it was not the absence of that evidence but the Appellant's plea of guilty which led to the jury verdict and the conviction and sentence imposed by McGuire DCJ. 39 As we have heard full argument on the matter, I would propose that leave to appeal out of time be granted. However, as I am not persuaded that there has been a miscarriage of justice, I would propose that the appeal be dismissed, the conviction and sentence confirmed.

40 HULME J: I agree with the orders proposed by Powell JA and with His Honour's Reasons. I wish however to add some remarks of my own. 41 Even if I were persuaded that the Appellant's plea of guilty was entered otherwise than through a consciousness of guilt, it does not follow that the appeal should be allowed and the Appellant permitted to withdraw his plea. 42 For justice to the community would require that, if that course was followed, the Appellant be re-tried on the charge brought. But it is now 6 years since the Appellant's plea and 8 years since the events which led to him being charged. Whether all, or indeed the main, witnesses are still available is unknown but even if they are, it is certain that memories will have dimmed appreciably over the intervening period. A trial now is thus likely to be a significantly different event from one conducted in 1994 and it is a moot point whether justice could be done. 43 Of course trials relating to events 8 or more years ago are by no means unheard of. However, in this case the reason for the delay will have been the actions of the Appellant consciously engaged in for the benefits he saw himself likely to derive from the course he adopted. 44 Unless one can conclude that justice to the community can still be done, it is strongly arguable that in the circumstances of this case he should be allowed to suffer the consequences of his decision.

45 DOWD J: I have read in draft form the judgment which has been prepared by Powell JA and agree to the proposed orders and reasons therefor. *********

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