R v Young [2002] VSCA 2

5. On 6 August 1996 the Director of Public Prosecutions made presentment against the applicant. The presentment at that stage contained five counts. Count 1 alleged against the applicant the handling of stolen goods, namely a Honda motor, between September 1994 and March 1995, counts 2, 3 and 4 alleged theft of various pieces of equipment and count 5 alleged attempted theft of certain fencing wire. It was alleged by the prosecutor that all of these offences involved the taking of goods or the handling of goods belonging to various mining companies carrying on their business in the general vicinity of Bendigo. On 5 March 1997 the applicant appeared before the Bendigo County Court before Judge Kellam (as he then was). The matter was adjourned to the following sittings at Bendigo. The applicant at that stage was representing himself but said that he had applied for legal aid and had a number of witnesses that he wished to call in the course of his trial. On 4 June 1997 the matter came on before Judge Campton in the Bendigo County Court. An application was made for a further adjournment and the applicant said he proposed to apply for legal aid. The matter was adjourned by Judge Campton to the Bendigo County Court on 27 October 1997. Ultimately the matter came back before the judge at Bendigo on 7 November 1997, when the Crown applied to have the matter transferred to the Ballarat sittings of the County Court in December 1997 because of the pressure of business existing in the Bendigo County Court. In late November 1997 the applicant had made a written application to the Director of Public Prosecutions, asking for the entry of a nolle prosequi. That application was declined by the Director and the matter was again listed for trial at the sittings of the Ballarat County Court in April 1998. By that time the applicant had been notified by Legal Aid that his application for aid had been refused. The matter in fact came before the County Court at Ballarat on 15 April 1998, when the applicant made an application to the judge requesting legal aid. Judge Crossley, who was the judge sitting in Ballarat at the time, adjourned the matter for mention on 24 April 1998. On that day, and after hearing argument, the judge ordered legal aid in favour of the applicant on conditions pursuant to the powers that he had under s.360A of the Crimes Act. The conditions attached to the aid were that it be confined to legal submissions which the applicant said he wished to raise on the voir dire and, secondly, that the choice of legal representation was to be vested in the Legal Aid Commission. His Honour adjourned the trial to the Ballarat sittings in June 1998. On 4 June 1998 the matter came back again before Judge Cullity in the Ballarat County Court. Again the applicant applied for an adjournment, which the Crown opposed. His Honour was told that the solicitor for Legal Aid, Mr McKenzie, was away on holidays, as a consequence of which the judge further adjourned the matter until 11 June 1998 to await the attendance of the solicitor from Legal Aid. On 11 June Mr McKenzie of Legal Aid appeared before Judge Cullity. Mr McKenzie said that he had secured legal representation in the form of a barrister to conduct the voir dire, which, so it was then said, mainly related to the validity of the warrant pursuant to which police had searched the premises of the applicant at the of time recovering what were alleged to be the dishonestly handled or stolen goods.

8. On 15 June 1998 the trial proceeded. At that stage the applicant had been earlier arraigned and had pleaded not guilty to the five counts on the presentment. He was represented by Mr McGowan of counsel. The voir dire was conducted on 15 and 16 June 1998, in the course of which it was sought to have excluded the Crown evidence of the finding of the goods alleged to have been handled or stolen, on the basis that the police had exceeded their powers under the search warrant which they had served on the applicant on the day on which they seized the articles concerned in the counts. It was also contended before his Honour that the record of interview, in the course of which admissions were made, should be excluded on the grounds that the record had been procured by threats and intimidation and/or that it was procured by unnecessary cross-examination by the police in the course of which they had demonstrated ridicule of the applicant. His Honour found the facts necessary to support the valid execution of the warrant in favour of the prosecution and thus ruled that the evidence of the Crown witnesses was admissible. Before his Honour had delivered his ruling upon the admissibility of the record of interview he was informed by Mr McGowan that, if the Crown sought leave to amend the presentment by alleging one count averring the dishonest handling of the goods alleged in count 1, together with the dishonest handling of the goods alleged to have been the subject of theft in counts 2 and 4, then the applicant would plead guilty to that one count. That leave was granted, the presentment amended to allege one count of handling those goods between September 1994 and March 1995, and the accused was re-arraigned and pleaded guilty to that count. On 17 June 1998 the matter was adjourned for the hearing of a plea on 25 June. On 25 June his Honour entertained that plea. The applicant admitted prior convictions, which included some for dishonesty, which had been recorded some years earlier. His Honour accepted evidence that the applicant had been a useful member of the community in which he had lived and had given substantial service to that community in various forms. Accordingly, whilst recording a conviction on the count to which the applicant had pleaded guilty, he adjourned the further hearing of the matter against the applicant for a period of two years on condition that he be of good behaviour in the meantime. In doing so his Honour was exercising his powers under s.72 of the Sentencing Act. Following the imposition of this sentence, the applicant apparently on the same date filed a notice of application for leave to appeal against his conviction, alleging, inter alia, that he had been denied natural justice and due process, that his plea was made under duress and was not made of his own free will, and the judge's conclusions on the voir dire were rendered void and nugatory on the basis that the police evidence was perjured.

11. On the hearing of this application, the applicant has appeared before this Court in person. He has addressed argument to the Court in support of his notice of application. During the course of those arguments he has sought to convince this Court that it should be prepared to set aside the conviction recorded, notwithstanding the plea of guilty which had been made. The applicant contended that the warrant was at all times unlawful, that its execution was unlawful, that the police had no reasonable suspicion to justify the basis upon which the warrant had been issued. The warrant in fact related to a shed, or materials of a shed which were alleged to have been stolen from one of the mining companies. The applicant contended that his plea was made under a form of duress. He contended that in essence the solicitor had told him that it would be better for him to plead guilty lest, if he challenged the material after the judge had admitted it, things would go worse for him. The applicant submitted that he had never intended to plead guilty. He put it that he was unhappy with the way in which his plea of guilty was made. He submitted that the judge found facts on the voir dire which were erroneous and based on the false evidence of the police. In that sense, he said, there was a failure of due process and that there had been a failure by his counsel to properly explore the issues on the voir dire. He accepted that he could have gone on with the trial, but was under pressure not to. Finally he submitted that all that had happened was a denial of fairness which had resulted in a miscarriage of justice.

14. As the Court indicated to the applicant in the course of argument, the circumstances in which an appellate court will set aside a conviction recorded after a plea of guilty are extremely rare. Those circumstances have been stated on many occasions, but more recently by the predecessor of this Court in Kardogeros[1], in Tait[2] and in Parsons[3]. In the long run, the circumstances must demonstrate a miscarriage of justice.

17. I am not persuaded that there is any basis for setting aside the conviction recorded in this case, or entering a verdict of acquittal, which, as I understand it, is what the applicant wants. There is nothing in the transcript of proceedings which I have read upon which I could conclude that the applicant's plea of guilty was procured against his will or that he failed to understand its consequences. He was represented by counsel of some experience and had given evidence on the voir dire. In his presence, counsel informed the judge of a "deal" which had been made with the Crown pursuant to which the presentment was to be amended to the advantage of the applicant. A witness, no doubt procured by the applicant, gave evidence upon the plea and references, again procured by the applicant, were read to the court. Notwithstanding the submissions which the applicant has put to this Court today, there is nothing in the events which I have cited which could possibly lead me to the conclusion that a miscarriage of justice occurred before the County Court. The transcript of evidence given on the voir dire does not, in itself, disclose anything to suggest that the evidence of the police was perjured or that his Honour was not entitled to rely upon it in reaching the conclusions which he did.

20. 7 As I have sought to explain to the applicant during the hearing here today, it is not open to this Court to re-open the matters of that hearing. Once his Honour had reached the conclusions of fact to which he came, and had determined that the evidence of the search was available and admissible, what happened thereafter is not only understandable but was almost inevitable. As his Honour said in his ruling following the voir dire, "The accused is not a man who is reluctant to advance his own cause, and had the opportunity to make such assertions on tape in the record of interview when he was put through the 'interview register'." I might interpolate that we have had the opportunity of listening to the applicant today. He seems, if I might say so, to be a man who can advocate his own cause and is obviously an intelligent man. His Honour found that the applicant had conceded that his treatment by police was "all right" and said that he did not assert that a threat had been applied to him. He further concluded that the property which was the subject of counts 1, 2, 3 and 4 was properly seized pursuant to the warrant. As I have said, what happened thereafter appears to be inescapable. Counsel for the applicant, who had obviously conferred with his client overnight, told the judge on the following morning that he would not wait for his Honour's ruling in relation to the admissibility of the record of interview, but rather informed the judge that there had "been some developments overnight", that he understood that the prosecution was in a position "to seek to amend the presentment", and that, if that were done, he "had instructions that [the applicant] will plead guilty to the one count that would remain on the presentment". Thereafter that amendment was made, it was an amendment which was to the benefit of the applicant, and this Court can readily infer that, when the applicant pleaded guilty to the amended presentment, he was aware of what he was doing and why he was doing it. The fact that the matter was then adjourned for one week to provide instructions to counsel for the making of the plea - and that there was no demur from the applicant during the plea - only reinforces the view which I have that what was being done was not against the will of the applicant. It is palpably clear that counsel was acting on instructions, and nothing has been put before this Court - save for the assertions of the applicant - which would suggest anything to the contrary.

23. Accordingly I would reject the application for leave to appeal against conviction. Understandably, no application has been made for leave to appeal against the sentence imposed.

WINNEKE, P.: The formal order of the Court is that the application for leave to appeal against conviction is refused.

[1] [1991] VicRp 19; [1991] 1 V.R. 269 at 273.

[2] [1996] VicRp 48; [1996] 1 V.R. 662.

[3] [1998] 2 V.R. 478 at 482.