R v Rustum [2005] VSCA 142

2 On 21 April 2004 the applicant pleaded guilty before the Magistrates' Court at Melbourne to a number of counts of obtaining property by deception, one count of attempting to commit an indictable offence and four counts of using a false document, to all of which he entered a plea of guilty. He was committed to stand trial before the County Court and bailed to appear at his trial. On 20 September 2004 the applicant was presented for trial on six of those counts: one count of using false documents (count 1), one count of furnishing false information (count 2), one count of attempting to obtain financial advantage by deception (count 5) and three counts of obtaining financial advantage by deception (counts 3, 4 and 6), whereupon the judge was informed that the applicant had changed his plea; he intended to plead guilty to count 4 but to plead not guilty to each of the other counts, and counsel for the applicant sought the exclusion of any evidence of the earlier plea of guilty.

3 The basis of the application to exclude evidence of the earlier plea of guilty was that the applicant was said to have entered the plea on the advice of counsel to plead guilty and leave the rest to counsel, and not because the applicant considered himself to be guilty. A voir dire followed in which both the applicant and the informant gave evidence. After reserving his decision, the judge refused to exclude evidence of the earlier plea of guilty to the counts other than count 4, but directed that the Crown was not to mention the earlier plea of guilty to count 4 or the fact that the applicant had been charged before the Magistrates' Court with that count. To give effect to that direction, the presentment was amended by the deletion of count 4 and the remaining counts were re-numbered sequentially. A second presentment was prepared relating to count 4 alone and to which the applicant was arraigned and pleaded guilty before the judge alone, and a jury was thereafter empanelled and the applicant was arraigned before the jury on the amended presentment on counts 1 to 3 and 5 and 6, re-numbered in the amended presentment as counts 1 to 5.

4 After a trial of almost two weeks' duration the jury returned a verdict on the amended presentment of guilty on all counts except the re-numbered count 4, but not guilty of the re-numbered count 4, and after hearing a plea in mitigation, on 11 October 2004, the judge sentenced the applicant as follows: on the count of using a false document (count 1), to six months' imprisonment; on the count of furnishing false documents (count 2), to six months' imprisonment; on each of the counts of obtaining financial advantage by deception (counts 3 and 5), to eight months' imprisonment; and on the count of attempting to obtain a financial advantage by deception, to which the applicant had pleaded guilty before the judge (count 4), to four months' imprisonment. The judge cumulated the whole of the sentence imposed on count 4 and the whole of the sentence imposed on count 5 on the sentences imposed on counts 1, 2 and 3 and on each other, making for a total effective sentence of one year and eight months, and ordered that six months of the sentences imposed on counts 1, 2, 3 and 5 be suspended for a period of three years from 11 October 2004.

5 The applicant now applies for leave to appeal against conviction. Only one ground of appeal is advanced. It is said that the judge erred in not excluding evidence that the applicant pleaded guilty in the Magistrates' Court to counts 1, 2 and 3 and 5 or, alternatively, in failing properly to direct the jury as to the use which might be made of that evidence.

6 Before the judge, it was argued that evidence of the plea of guilty should be excluded on the basis that there was a real possibility that there had been a misunderstanding between the applicant and counsel who represented the applicant at the committal hearing. The burden of the argument was that the applicant intended to plead guilty to one count of obtaining financial advantage for himself, but may not have understood that he was also pleading guilty to other counts which involved obtaining financial advantage for others, and that the chances of such a misunderstanding were the result of counsel having come into the matter only shortly before the committal hearing, and that there had been some discussion between counsel and the informant as to the possibility of the applicant co-operating with the police by providing a statement against a co-accused. The judge rejected that contention, and so do I. As the judge observed in his ruling, it was accepted that the magistrate had either read to the applicant or had outlined the eight charges before the Magistrates' Court and had given the caution required by Clause 23.2(b)(i) of Schedule 5 to the Magistrates' Court Act 1989. As his Honour also noted, it was not suggested that the applicant had misunderstood the caution and it was inherently unlikely that he would have done so. He had faced criminal charges in the past and was experienced in the committal procedure and, on his own admission on the voir dire, he well understood the meaning of a guilty plea.

7 Counsel for the applicant criticises the judge's ruling as failing to deal with a submission put on behalf of the applicant that the applicant had not been strenuously challenged on his version of events and that there was substantial support for the proposition that there was not a meeting of minds between the applicant and his counsel at the committal hearing. I do not accept that criticism. The judge did not refer at length to the applicant's testimony on the voir dire, but his Honour noted the substance of it and he rejected it, and, in the circumstances, I do not see that anything more was required. At one point in cross-examination on the voir dire the applicant seemed to suggest that he had not completely understood that he faced a multiplicity of charges at the committal hearing, or that he had pleaded guilty to all of those charges. It was put to him that he had been asked about other charges in the course of the police interview, with which he agreed, and he was asked what then he thought had happened about those other charges when he went to the committal hearing. He answered:

"I got nothing to do with it. I just went to plead guilty on my charge and put my solicitor to act on my behalf, to defend me on my charge. Nothing to do with other people."

That evidence, however, was directly countered by the applicant's evidence-in-chief on the voir dire, as follows:

"Did he [counsel] discuss with you whether you should plead guilty, not guilty or what you should do?"

Answer: "Yes, he did."

Question: "Did he give you advice?"

Answer: "Well, he just told me to plead guilty on all charges and leave it up to him, he'd fix it up.

Question: "Just repeat that again. He told you to plead guilty to all charges?

Answer: "Yes."

Question: "And leave it up to him?"

Answer: "I leave it up to him, he fix it up."

Question: "In relation to the other matters, you did enter a plea of guilty at the committal?"

Answer: "That's what he told me to say."

8 Plainly, in my opinion, the applicant did know of and intended to plead guilty to all charges at the committal hearing and, according to him, he decided to take that course because of the advice of his counsel to plead guilty to all charges and leave it to counsel to "fix it up".

9 Counsel for the applicant contends that the judge's ruling was inadequate in failing to recognise or deal sufficiently with the prejudice to the applicant of admitting evidence of the earlier plea of guilty to the counts other than count 4. I reject that contention too. Evidence of an earlier plea of guilty is potent evidence of guilt and, as has been said, its potency is not to be equated with prejudice.[1] Consequently, evidence of an earlier plea of guilty is not normally to be excluded unless it is shown that the plea was involuntary or unintentional or otherwise so affected as not to be reliable. Here, the evidence established no more than that the plea was the result of strong advice of counsel. Strong advice from counsel does not render a plea involuntary or unintentional. Evidence of the earlier plea of guilty to count 4 would have been prejudicial, but the judge guarded against that prejudice by directing the Crown not to mention count 4.

10 Counsel for the applicant contends that the judge's direction concerning count 4 did not overcome the prejudice attaching to that count. He submits that, in order properly to explain to the jury why the plea of guilty to the other counts was not an admission of guilt, it would have been necessary for the applicant to refer to count 4 to place in context the applicant's reasons for withdrawing his plea of guilty to counts 1, 2, 3, 5 and 6. In that event the applicant would have to have drawn the jury's attention to count 4 and thus to the fact that the applicant was guilty of similar conduct to that with which he stood charged before the jury. Thus, counsel says, the prejudice remained.

11 I also reject that contention. As it appears to me, it proceeds upon the misconception that the applicant's intention was to plead guilty only to count 4 and that the applicant was mistaken about, or did not understand that he was pleading guilty to, the other counts. On the applicant's own evidence, he was not mistaken about and did understand his plea of guilty to the other charges. As he said, the advice of his counsel was that he should plead guilty to all counts and leave it to his counsel to "fix it up". On his own evidence, therefore, he intended to plead guilty to all counts and the only reason for taking that course was that it was what counsel advised. And, as the judge plainly perceived, the applicant could have explained that to the jury without making any mention of count 4.

12 In argument this morning, counsel for the applicant put an alternative proposition. It was suggested that the applicant may have pleaded guilty on count 4 and on the other counts because he believed that there would be a plea bargaining on the counts other than count 4, and thus he was prejudiced in the presentation of his case to the jury because he could not explain to them that the only reason that he had pleaded guilty to the other counts, as opposed to count 4, was his belief that by pleading guilty to all there would be some accommodation in respect of those other than count 4. The argument is not persuasive. On the applicant's own admission, the applicant intended to plead guilty to count 4 at all stages, regardless of the other counts. In those circumstances, it would make no sense to plead to the other counts, if he were not guilty of them. It is not suggested - and on the evidence it could not be - that he intended to plead guilty to those other counts because he believed that there might be a trade-off between count 4 and the other counts. His evidence was that he understood that he was guilty of count 4 and always intended to plead guilty to it.

13 In directing the jury as to the way in which they might make use of the evidence of the earlier guilty plea, the judge said this:

"There is evidence before you in this trial that at a hearing in the Magistrates' Court on 21 February this year, five charges were before the court, and that in response to those charges and the passage read to the accused by the magistrate, the accused pleaded guilty. The prosecution alleges that that plea was in response to all five charges and that it relates to the five counts now before you. It is open to any accused to reverse his plea in this court. My direction now is to how you should approach the evidence before you on this issue.

Before you can use that plea as conclusive evidence of the [accused's] guilt, you must be satisfied beyond reasonable doubt that the plea was, and was intended to be, a true acknowledgment of the accused's guilt on each or all of the charges. That means that if having regard to all the evidence you conclude that it was possible that he entered the plea, not because of a belief in his guilt, but because of his counsel's assurance that he should plead guilty and to 'leave the rest to him', that is to leave the matter to counsel. It could be inferred from that remark that counsel assured the accused that it would be to his benefit to plead guilty, that possibly, as a result he could get a reduced sentence.

It could be that the accused pleaded guilty on that basis, rather than a true acknowledgment of his guilt. If it is a possibility that that is the case then you should discard the plea of guilty from your consideration."

14 The applicant contends that the direction was inadequate in its failure to relate the issue to the evidence. It is submitted that it followed too closely the direction formulated by Winneke, P. in R. v. D'Orta-Ekenaike[2] and ignored that the reasons given for the applicant's mistake in that case were different to the applicant's reasons for mistake in this case. In R. v. D'Orta-Ekenaike the accused's contention was that he had pleaded guilty on advice that he would receive a more lenient sentence; hence, Winneke, P. specifically referred to the possibility of the accused's belief that he would receive a more lenient sentence. But in this case the accused did not say anything about the possibility of a more lenient sentence. His evidence was that he was advised to plead guilty and leave it up to his counsel to "fix it up". It follows, it is said, that the judge should not have mentioned the possibility of a more lenient sentence but only the possibility that counsel would fix it up. Arguably, there is some substance in counsel's submission. Possibly the judge's direction did follow too closely the form of the direction in R. v. D'Orta-Ekenaike and could have been better adapted to the facts of the case. The direction suggested in R. v. D'Orta-Ekenaike was tailored to the facts of that case and is not necessarily suitable for use in other cases without appropriate adaptation. For example, if in a case an accused gives evidence that he pleaded guilty when he was innocent because of threats made against him, the direction should refer to the possibility that the accused pleaded guilty because of fear of threats, as opposed to belief in his own guilt. Similarly, if an accused gives evidence that he pleaded guilty when he was innocent because of the promise of financial reward, the direction should refer to that possibility, as opposed to a belief in his own guilt. After all, as Winneke, P. said in R. v. D'Orta-Ekenaike, the direction is in substance the same as that which must be given in connection with any other confession and, before a jury can use the confession as conclusive evidence of guilt, the jury must be satisfied beyond reasonable doubt that it was made and that it was true.[3]

15 That having been said, however, I do not consider that there is a reasonable possibility that the direction deprived the applicant of a chance of acquittal. The first part of the direction was unexceptionable. In terms it made plain that the jury had to be satisfied beyond reasonable doubt that the plea was, and was intended to be, a true acknowledgment of the applicant's guilt on each or all of the other charges, and if they considered it was possible that the applicant entered the plea without a belief in his guilt and simply because of his counsel's assurance that he should plead guilty and to leave the rest to him, they could not be satisfied beyond reasonable doubt that the plea was, and was intended to be, a true acknowledgment of the accused's guilt on each or all of the charges. In my opinion, that part of the direction accords with the applicant's testimony and, if it had stopped at that point, there could not have been any cause for complaint.

16 The final section of the direction is the only part of it about which there might be any complaint, and the problem there is the reference to a more lenient sentence. But even then, taken in context, I doubt that there is much wrong with it. The judge seems to have used the word "infer" in the sense of imply, and logically an assurance that counsel would "fix it all up" might imply a suggestion that the applicant would receive a more lenient sentence. Consequently, I think that the jury would have taken the last section of the direction as really no more than an explanation by way of example of what the judge had already said. In effect, it was a suggestion as to one way in which counsel's advice might have persuaded a man who was innocent to plead guilty, and hence, if it had any effect at all on the jury, it can only have been of assistance to the applicant. If necessary, the proviso should be applied.

17 It follows, in my opinion, that the application for leave to appeal against conviction should be dismissed.

18 I agree that this application for leave to appeal against conviction should be dismissed, and I do so for the reasons advanced by Nettle, J.A.

19 I likewise agree, for the reasons advanced by Nettle, J.A.

20 The order of the Court is that this application for leave to appeal against conviction is dismissed.

MR PAPAS: If it please the Court, I have instructions to seek leave to abandon the application for leave to appeal against sentence, and I seek leave to file a notice of abandonment out of time.

VINCENT, J.A.: The appropriate notice of abandonment having been filed, leave to abandon this appeal against sentence is granted and the matter stands dismissed.

[1] See R. v. D'Orta-Ekenaike [1998] 2 V.R. 140 at 146, per Winneke, P., and R. v. D. [1999] VSCA 148 at [70], per Chernov, J.A.

[2] [1998] 2VR 140 at 146.

[3] See Burns v. R. [1975] HCA 21; (1975) 132 C.L.R. 258 at 261.