REGINA v. BREHOI [1999] NSWCCA 113

1 BARR, J: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: The applicant, who appears in this court on his own behalf, seeks an extension of time to appeal against his conviction on 4 August 1995 in the District Court of New South Wales on one count of supply a commercial quantity of heroin, and four counts of supply heroin. These counts, to which the applicant entered pleas of guilty, were contained in three indictments upon which the applicant was arraigned before her Honour Judge Karpin on 6 June 1995. The applicant was represented in respect of those pleas and in the subsequent sentencing proceedings by his solicitor. Her Honour expressly ascertained of the applicant whether he understood the course he was then taking. The applicant gave evidence on the plea, as he had on an earlier voir dire. 3 On 29 May 1995 the applicant and a co-accused had been indicted on the first of those three indictments. That indictment contained two counts of supply heroin, one involving a commercial quantity. The applicant had pleaded not guilty to those two counts and prior to the trial commencing a voir dire examination had occurred on his objection to the admissibility of an ERISP conducted with him, in which it was said there were material admissions. The applicant was represented by Mr. S. Cook of counsel during the voir dire hearing. 4 On 5 June 1995, after a lengthy hearing, her Honour ruled that the contents of the ERISP were admissible. The applicant contents her Honour erred in her determination of fact on the voir dire. It may be accepted it was in consequence of that ruling that the applicant entered the pleas of guilty to which I have earlier referred. 5 The applicant was sentenced in respect of all the offences by her Honour to an effective total sentence of six and a half years imprisonment with a minimum term of four years and an additional term of two and a half years to commence on 2 December 1993. Thus, the minimum term has now long expired and the additional term has substantially expired. 6 The applicant lodged an application for leave to appeal to the Court of Criminal Appeal against the severity of his sentence. He says here that he wanted his lawyers to lodge a notice of appeal against conviction and sentence but the notice of appeal challenged sentence only. On the hearing of that application Mr. Vasta, solicitor, appeared to assist the applicant, and the applicant himself addressed submissions to the court, both oral and written. 7 On 16 December 1966 the Court of Criminal Appeal refused leave for the applicant's sentence appeal. In the judgment at paragraph three the court adverted to the grounds of appeal in respect of sentence as filed, which contended her Honour failed to take into account:- "What is described as 'the fact' that the prisoner was assaulted by police. She did indeed refer to those allegations which were in part the subject of a voir dire hearing and she said that she disbelieved him." 8 Notwithstanding that Mr. Vasta addressed on the matter suggesting that her Honour had made an adverse finding on the voir dire relying, inter alia, on a report by the Ombudsman, the court concluded the trial judge had reached an independent conclusion on the evidence. Reference was made there, as it was here, to a witness who might have been called on the issue of the alleged assault, but the court concluded that the allegation had been thoroughly canvassed on the voir dire hearing and "her Honour, not surprisingly, indicated she was not prepared to reopen that hearing" when an attempt was made on the sentencing proceedings to re-agitate that question. The court concluded:- "In the course of Mr. Vasta's remarks, and even more markedly in the course of what the prisoner said to us, it seemed to be inferred that his real complaint is that he was not guilty of these offences, that he was in fact collaborating with the police, that there was no intention to commit crimes, but the fact of the matter is that after that voir dire hearing in which he was represented by counsel, he formally pleaded guilty to all five counts and he was represented on the sentencing proceedings by his solicitor, the same solicitor who out of courtesy to the court and out of some sense of obligation to the prisoner as his former client, has attended here today. I think there is no substance in the claim that her Honour failed to take any of those matters into account..." 9 Thus, it appears that the Court of Criminal Appeal on the sentence application was concerned with the very matters which the applicant seeks to agitate now before us, and it is in that context that the applicant seeks an extension of time to appeal or seeks leave to appeal against his conviction for the reasons that he gives in his notice of application, in which he contends that "the appeal was lodged in the 10 day period, it has been re-submitted now as civil proceedings relevant to this matter were only concluded in March 1998". 10 Section 10 of the Criminal Appeal Act provides:- "(1) Any person convicted on indictment desiring to appeal to the court, or to obtain the leave of the court to appeal from any conviction, or sentence, shall give notice of appeal or notice of application for leave to appeal, in such manner as may be prescribed, within 28 days of the date of such conviction or sentence. (2) ... (3) the court may, at any time, extend the time within which notice of appeal, or notice of an application for leave to appeal, is required to be given to the court." 11 Notwithstanding the 10 day period referred to in the applicant's notice for extension, the period had been, since the amendment of 1991, the period now prevailing of 28 days. 12 In support of the extension sought, the applicant contended in his notice of appeal that he had previously appealed the conviction and severity, but "as only two judges were hearing the appeal, the judges decided and accordingly informed me that because there were only two judges they therefore could not hear the conviction side of the appeal". "This is no fault of mine." I note at this point that neither the original notice of appeal, which is before us, nor the judgment on that appeal assists these contentions. 13 Thus, it appears that almost four years after the event, having received legal advice at the time and legal assistance subsequently, neither of which it is now sought to impugn, having brought an appeal in which the questions propounded were at least to some extent agitated, having pleaded guilty and thereby solemnly admitted all the legal ingredients of the originally charged offences, the applicant seeks an extension of time to challenge an interlocutory decision on admissibility for asserted error of fact or in exercising a discretion. 14 It is not suggested that a wrong decision of law by her Honour overbore the applicant's will such as to vitiate the admissibility of his plea so that the admissions thereby made should fairly be allowed to be withdrawn. Nor is it suggested that the plea was not really attributable to a genuine consciousness of guilt or that there was an issuable question of guilt; that is, a real question to be tried. (See the discussion of the relevant test by Badgery-Parker, J., with whom Wood and Mathews, JJ. agreed, in Regina v. Davies (CCA, unreported 16 December 1993.) 15 The onus to establish the integrity of the plea (rather than any possible defect of admissibility for matters of evidence that might be tendered in the Crown case) lies on the applicant. Such a burden will ordinarily, of course, be harder to discharge the longer any suggested matter impugning the integrity of the plea and known to the applicant is allowed to lie. 16 In this case, what appears to have activated the present application, according to the grounds and submissions, is a finding in the applicant's favour by the Victims Compensation Tribunal. In my view, on an analysis of what her Honour said in her judgment on the voir dire and what appears in the papers provided by the applicant in the Victims Compensation Tribunal, there are no questions in common between the two such as to give rise to any question of inadmissibility, either at common law, in discretion, or under s.410 of the Crimes Act. 17 The Victims Compensation Tribunal held that the applicant was suffering from injuries but made no finding to suggest that those injuries were inflicted by police. Her Honour accepted that the applicant was suffering from injuries. She found no relevant illegality nor factual basis for the illegality asserted, nor such effect of the applicant's injuries as was continuing to operate at the time of the admission. 18 In the event that there was a sufficiently arguable case, in my view the court would consider granting an extension. The principles by which such a sufficiently arguable case should be examined have been set out in this court in Regina v. Unger (1977) 2 NSWLR 990. The finality of decisions is a principle to which Unger (supra) refers, and indeed that principle has also been adverted to in the cases involving discretion to permit withdrawal of a plea. See Regina v. Liberti (1991) 55 A. Crim R. 120. 19 There are in this case, in my view, insuperable impediments to this application. I am not of the view that any basis has been shown which might have enabled the overturning of the plea. I am not of the view that any error has been shown or even indicated in her Honour's determination on the voir dire. I am not of the view any adequate explanation has been offered for the delay and in that regard I am unable to accept that the applicant believed that the conviction appeal had been on foot, in the absence of any explanation from him as to his failure to prosecute any such conviction appeal in the interim, particularly in the light of what was said on the sentence appeal by the court then deciding that matter. 20 In my view, the extension of time should be refused. 21 BARR, J: I agree. 22 SMART, AJ: I also agree. 23 BARR, J: The order of the court is that the application for an extension of time within which the appellant may appeal against his conviction is refused.

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