R v Reed [2003] VSCA 95

50. On 29 July 2000, in the County Court, the prosecutor filed over a presentment containing one count of trafficking in ecstasy: apparently it was no longer being alleged that a commercial quantity of the drug was involved. A number of preliminary matters were then argued before the judge, including a contention (which is not now pursued) that the applicant had been induced by "fraud" to plead guilty and in consequence to enter into an arrangement with the prosecution to give evidence against the co-defendants. The "fraud", it was asserted, was the knowledge which the prosecution "almost certainly had", prior to the applicant giving evidence at the committal hearing of the co-defendants, that there was no ecstasy present in the samples which had been analysed, information which had not been communicated to the applicant or his legal advisers before he entered into the undertaking to give evidence against the co-defendants.

53. On 1 August 2002, two of the three co-defendants were arraigned and pleaded not guilty to the new presentment containing the one count of trafficking. Following further discussions and applications, on 5 August the prosecutor announced the entering of a nolle prosequi on that presentment and yet a further presentment was filed over, this one containing one count of attempting to traffick in the relevant period. Again the two accused entered a plea of not guilty. On 16 August, the judge was informed of steps being taken on behalf of the present applicant with respect of his conviction and, in the end, not only were the then current proceedings adjourned, they were also transferred for determination to the Supreme Court.

57. What the applicant now says is that he was led into pleading guilty by mistake: first, by a mistaken belief on his part that the substance that he was given to press into tablets was ecstasy, and then by mistaken advice by his legal advisers (which is the subject of the affidavit he swore on 30 January 2003) that he was still guilty of the charge against him if he merely believed that it was ecstasy. And believe that, he did: so much is clear from his record of interview. Having learnt now the results of the forensic testing of the samples taken, the applicant wishes to change his plea because mere belief as to the nature of the substance, while it may be enough to sustain a charge of attempt, could not in itself sustain the charge of trafficking - or so the argument runs. (I am prepared to accept this last for the sake of argument, although Mr. McArdle, for the Crown, was disposed to contest it.) An earlier allegation that the applicant was led to plead guilty by "fraud" on the part of the prosecution is now withdrawn. The applicant concedes that at worst it was a failure by the police (if indeed they did learn earlier the result of the forensic tests) to communicate the result to him before he gave evidence at the committal.

60. In favour of the application is, of course, the fact that the Crown itself has chosen to draw back, apparently accepting that it cannot prove, at all events as against the co-defendants, the fact that the substance being handled was in fact ecstasy. Presumably, the Crown has acted upon the basis that it has available to it the evidence of the present applicant but he, it appears from his record of interview, may lack the knowledge, skill and experience to identify the drug which he so earnestly punched into tablets, not once but twice. (That he did lack the necessary knowledge, skill and experience was specifically confirmed with him during cross examination at the committal hearing for the co-defendants.) At no stage did the co-defendants admit that they were handling ecstasy, unlike the applicant who must be taken, by his plea of guilty, to have admitted all of the elements of the charge against him.

63. The argument that the applicant made his plea of guilty on a mistaken basis obviously has some force, given the advice he received, but there are a number of difficulties with it. First, there is the question of when the applicant first learnt, as he says, that the substance he was punching into tablets was ecstasy. According to his statements, and in particular that of 20 August, it was Tony who told him that it was ecstasy. According to paragraph 6 of his affidavit of 30 January last:

"During the interview with the Police, I was informed that the substance found on the premises of Aloe Tech Laboratories had been positively identified as Ecstasy. I told them I did not think it was Ecstasy. I then accepted their evidence that the substance had been proven to be Ecstasy as they told me they had seized a quantity of tablets."

This is somewhat remarkable, given that the interview was on 19 August and that the police did not seize anything from the factory until a few days later, on 24 August. Nor is the applicant's version of how the interview proceeded borne out by the written record, which the applicant has directly or indirectly confirmed more than once. In the record of interview it is quite plainly the applicant, not the police, who describes the substance as ecstasy (even if he was told so by Tony).

68. In his earlier affidavit of 23 August 2002, upon which he relied in seeking an extension of time within to seek leave to appeal, the applicant said, in paragraph 8:

"At no time prior to the commencement of the Committal [of two of the co-defendants in May 2002] was I provided by the investigating Police or any member of the Prosecution team with a laboratory report confirming that the substance I had allegedly trafficked in or attempted to traffick in was drug of dependence, namely Ecstasy. At all times the Police had informed myself and my legal representatives that the substance taken for testing was Ecstasy. I accepted this information as correct as I did not know otherwise."

Again this is not borne out by the record of interview. Nowhere does it appear there that the police told the applicant of the nature of substance that he handled; nor could the police have known at that stage. The only samples taken were taken on 24 August; the tablets themselves were never recovered. Moreover, the applicant is not asserting in his affidavit that the substance that he handled was not ecstasy, but only that he was not aware until the laboratory report was tendered at the committal of the co-defendants that the police did not have any independent evidence that it was ecstasy: a very different matter. As he says in paragraph 15 of the affidavit, had be been aware of the results of the laboratory report before pleading guilty he would have defended any charges. But in itself that does not establish that his plea was mistaken in a relevant way.

73. There are other problems, too, which the argument for the applicant did not, I think, resolve. First, there can be no doubt - and counsel was disposed to accept - that the applicant was alive to the fact that what he was doing was probably illegal. After all he was to be paid a dollar per tablet which was "unusual": surely an understatement, given that the cost of punching was but a few cents. Secondly, while the applicant now claims that, although having been in the manufacturing of chemicals and the like for many years, he was in no position to adjudge the nature of the substance for himself, he has never said what it was he thought he was handling, if not ecstasy. Thirdly, in his record of interview, the applicant described the substance as ecstasy, without demur. He seeks now to latch on to the fact that that was Tony told him, but it does not follow that his decision to plead guilty was therefore flawed. And finally, as Mr. McArdle stressed, while the result of the forensic testing was made known in May 2000, it was not until August 2002 that the applicant made application for an extension of time within which to appeal. According to the affidavit the applicant swore on 23 August 2002 (paragraph 17) it was "as a result of events and submissions between the 31 July 2002 and 9 August 2002 in the Trial [of the co-defendants in the County Court]" that he took advice again. It is at least noteworthy that it was on 2 August 2002 that the County Court judge, in dealing with the co-defendants, upheld a submission that the evidence of George Kritsonis was not reliable.

76. It will be recalled that, in his statement of 20 August 1998 the applicant recounted giving two tablets from among those punched to his friend Kritsonis. Kritsonis, it appears, made a statement to police, which the judge described thus, in his ruling:

"In his statement, Kritsonis suggests that in or about December 1997 Reed provided him with an envelope containing two tablets which he, Kritsonis, presumed to be Ecstasy tablets. One of the Ecstasy tablets was white and one was a sort of speckled brown grey colour. Some three or so weeks later Kritsonis went to a party and took the tablets after consuming some red wine and about half an hour after taking the first tablet he experienced as exhilaration-like high creep up on him, which feeling lasted for about three hours. He then took the other tablet and experienced the same exhilaration. In his statement Kritsonis says that for the last five years he has been a recreational user of Ecstasy tablets and that from his experience with Ecstasy he was familiar with the drug, its appearance and effects, and that the tablets he received from Reed were Ecstasy."

80. On 2 August 2002 his Honour held that this evidence was "unsatisfactory". He said that, whereas Kritsonis spoke of receiving the tablets from the applicant in December 1997, the applicant spoke of giving them to Kritsonis some three or four months later. Whereas the applicant spoke of tablets being dark grey in appearance with black fleck throughout, Kritonis spoke of their being one white and one "a sort of speckled brown grey colour". Nor did the judge regard Kritsonis' evidence as consistent with the later sampling (on 24 August) which revealed no trace of ecstasy. Accordingly his Honour ruled that Kritsonis' evidence was inadmissible on the trial of the two co-defendants then before him.

83. In my opinion, the inescapable inference from the foregoing is that what precipitated the application by the applicant for an extension of time within which to appeal against his own conviction was not the disclosure of the laboratory report in May 2000, but the ruling made by the judge on 2 August 2002. It was not that the police sampling had proved negative, for after all the samples had been gathered some months after the tablets had been punched and after the factory had been sold; it was the ruling that the evidence of Kritsonis was not admissible against two of the co-defendants. In those circumstances the application to extend time can quite properly be characterised as opportunistic.

86. If it matters, I am not at all clear that that ruling, made in the case of the two co-defendants, applies equally to the applicant; and if it does not, then there is some evidence in his case that the substance that he handled was in fact ecstasy. Of course for that to be so it must be that Kritsonis was wrong as to dates (and Mr. McArdle accepted as much), but that would not be the first time such an error had been made. On the other hand, if Kritsonis was not wrong as to dates, his evidence bespeaks some earlier familiarity on the part of the applicant with the drug ecstasy after all.

89. For these reasons I see considerable force in the points taken by Mr. McArdle in opposition to the present application for leave to appeal. Yet there is another basis, I think, upon which this application must fail. On the one hand, unless the statement of Kritsonis can be taken to be such, there is no evidence that the substance being handled by the applicant in March 1998 was ecstasy. But on the other hand, nor is there any evidence that it was not - and that makes an important difference. Had there been evidence, objective evidence, that the substance being handled by the applicant was not ecstasy, there would be grounds, I think, for concluding that, in pleading guilty to the charge after receiving advice that it was enough that he believed the substance to be ecstasy - advice which, for present purposes, I am accepting was flawed - the applicant pleaded guilty when labouring under a relevant mistake. But that is not necessarily the case if, as here, the applicant can show only that he might have been labouring under a relevant mistake. At best, the applicant demonstrates that he only believed that the substance that he handled was ecstasy; he has not demonstrated that it was not ecstasy. No doubt there were other circumstances bearing upon his belief, some of which may already have been disclosed and some not. We cannot know. At this stage the onus is squarely on the applicant to establish, on proper material, that there is a relevant ground upon which this Court can overturn the conviction and allow him to withdraw his plea of guilty.

Those grounds are well established: it is either because he pleaded guilty to an offence of which he could not be convicted or because, in pleading guilty, he was labouring under relevant mistake. He demonstrates neither by showing only that, though he believed the substance he was handling to be ecstasy, there is no independent evidence to show that it was. His belief might or might not have been a mistake. His plea of guilty might or might not have been a mistake. We cannot intervene on that basis.

98. In my view, for the reasons given by Phillips, J.A., and for the additional reasons given by the learned President, this appeal should be dismissed.

[1] R. v. Forde [1923] 2 K.B. 400; R. v. Cooling [1990] 1 Qd.R. 376; R. v. Liberti (1991) 55 A.Crim.R. 120; R. v. Murphy [1965] VicRp 26; [1965] V.R. 187; R. v. Kardogeros [1991] VicRp 19; [1991] 1 V.R. 269; R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662.