Regina v Iral [1999] NSWCCA 368

New South Wales Court of Criminal Appeal CITATION : Regina v Iral [1999] NSWCCA 368 FILE NUMBER(S) : CCA CCA 60800/98 HEARING DATE(S) : Monday 26 July 1999 JUDGMENT DATE : 26 July 1999

PARTIES : Appellant: Christian Eugenio Iral Respondent: Regina JUDGMENT OF : Meagher JA at 1; Simpson J at 13; Sperling J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0453 LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

COUNSEL : Appellant: J. Nicholson SC Respondent: J.V. Agius SC / N. McHugh SOLICITORS : Appellant: T.A. Murphy (Legal Aid) Respondent: Commonwealth Director of Public Prosecutions CATCHWORDS : Failure to appreciate nature of charge; withdrawl of plea;; conflict of interest by interpreter CASES CITED: Regina v Lloyd Davies 16 December 1993 (unreported) DECISION : 1.Appeal be allowed; 2.Plea of guilty set aside and conviction quashed; 3.That there be a new trial.

IN THE COURT OF CRIMINAL APPEAL

CCA 60800/98

MEAGHER JA SIMPSON J SPERLING J Monday 26 July 1999

REGINA (COMMONWEALTH) v CHRISTIAN EUGENIO IRAL JUDGMENT

1 MEAGHER JA: This is an application for leave to appeal by Mr Christian Eugenio Iral against a decision of his Honour Kirkham DCJ. That decision was made on the motion, supported by affidavit, of a solicitor called Mr George Leslie Hovan. That gentleman also gave oral evidence. 2 His Honour in his Judgment said this: "If a plea has been entered in full knowledge of the facts intentionally as a plea to a charge which is made the Court is plainly entitled to exercise its discretion against the withdrawal of the plea". 3 His Honour also said this: "Some relevant matters are as follows, for the exercise of this discretion: 1. The accused at the committal proceedings, being in possession of the police brief pleaded that he was not guilty; 2. At the time when the accused pleaded guilty on 24 July 1998, he was with the co-accused who pleaded not guilty; 3. He was legally represented on that occasion and it seems instructed by Ms Betts to enter a plea of guilty by that lady who was a solicitor from Mr Hovan's office; 4. The previous month, on or about 10 June, in fact the accused had been told by Mr Hovan what were the elements of the offence for which he was charged". 4 If one restricted oneself to those statements by his Honour, the current application would indeed seem to be hopeless, but I do not think one should restrict oneself to those. 5 The chronology relating to the matter is fairly simply, one starts with a committal in respect of the offence upon which the appellant pleaded not guilty. When the matter came on for trial on 1 September 1998, he pleaded guilty and the matter was stood over for sentencing. 6 On 22 September 1998, he made a request to his Honour to change his plea. It is as an appeal from the decision in that matter that the present case comes. 7 The principles of law which are applicable to this sort of case have been laid down in many cases. I find the most satisfactory and convenient summary of those principles in the Judgment of Badgery-Parker J, in the matter of Regina v Lloyd Davies, 16 December 1993, apparently, and regrettably, unreported. 8 In that case one of the matters his Honour states was that, if it appears that the appellant did not appreciate the nature of the charge, he may withdraw his plea. Not that that is the only circumstance in which the plea may be withdrawn, but that is one of the circumstances. 9 In the present case I find it impossible to believe that the appellant did understand the nature of the charge made against him and I am not entirely convinced that he ever gave instructions to anybody to enter a plea of guilty. 10 I have, in the course of his submissions, put to the Crown various questions and answers from the cross-examination of Mr Hovan and from that evidence I would draw the following conclusions: 1. That it is doubtful that Mr Hovan at any stage elicited from the appellant what the facts of the case were or what the appellant's instructions were; 2. That Mr Hovan was more interested in extracting funds from the appellant and using his services as a translator than he was in supplying the normal services of a solicitor; 3. Apparently neither Mr Hovan nor any of his employees had an authority to enter the plea of guilty on 1 September 1998; and 4. Despite Mr Hovan's evidence to the contrary, that neither Mr Hovan nor any of his minions explained to the appellant exactly what were the ingredients of the offence with which he was charged. 11 Insofar as one can point to any evidence in the transcript against any of these conclusions, I think that evidence should be strongly discounted for the reason that Mr Hovan had evidence of a conflict of interest; on the one hand he had a client who instructed that he wished to change his plea because of certain circumstances which included the fact of non-disclosure of the elements of the offence and, on the other hand, he wanted to justify his own conduct. He should not, in the circumstances, have acted in giving evidence and the Court should not have been anxious to place over-much reliance on it. 12 For those reasons, I would propose the following orders be made: 1. The appeal be allowed; 2. The plea of guilty should be set aside and conviction quashed; 3. That there be a new trial. 13 SIMPSON J: I agree. At the commencement of the proceedings today, counsel for the applicant sought an adjournment of the proceedings. The basis for the application was that he wished to rely on affidavit evidence sworn by the applicant and the applicant was not present and was not able to be brought to Court today. The Court refused the adjournment. 14 Since the Crown was thereby denied the opportunity to cross-examine the applicant, at first sight it may appear that the Crown was denied an opportunity fully and properly to present its case. However, such an appearance would be illusory. 15 The fact is that the conflict of interest that is apparent on the papers would remain and would be irremediable no matter what evidence emerged through cross-examination. That conclusion is reinforced by information that was frankly given to this Court by the Crown to the effect that the solicitor had been approached and asked to provide an affidavit and had declined to do so. 16 In my opinion, therefore, the Orders proposed by Meagher JA were inevitable and no purpose would have been achieved by further delaying the proceedings. 17 I agree with the Orders proposed. 18 SPERLING J: I agree with the Orders proposed for the reasons given by their Honours. 19 MEAGHER JA: The Orders of the Court therefore are the Orders which I proposed.