Regina v Sewell [2001] NSWCCA 299

New South Wales Court of Criminal Appeal

CITATION : Regina v Sewell [2001] NSWCCA 299 FILE NUMBER(S) : CCA 60373/01 HEARING DATE(S) : 3 August 2001 JUDGMENT DATE : 10 August 2001

PARTIES : Regina v Thomas Joseph Sewell JUDGMENT OF : Heydon JA at 1; Simpson J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0232 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : (A) S J Odgers SC & P A Leary (C) M C Grogan SOLICITORS : (A) Leary & Company (C) S E O'Connor CATCHWORDS : Withdrawal of plea prior to conviction - applicable principles - using false instruments - construction of ss299 & 300 of Crimes Act 1900 - whether evidence sufficient to support charges. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Rules Meissner v The Queen (1995) 184 CLR Maxwell v The Queen (1995) 184 CLR R v Toro-Martinez (2000) 114 A Crim R 533 S v Recorder of Manchester [1971] AC 481 CASES CITED: R v Ross CCA unrep 20 April 1994 Liberti (1991) 55 A Crim R Davis NSWCCA unrep 16 December 1993 R v Bargachoun NSWCCA unrep 23 October 1995 R v Foley [1963] NSWR DECISION : Extend time for leave to appeal - Leave to appeal granted - Application dismissed.

IN THE COURT OF CRIMINAL APPEAL

60373/01

HEYDON JA SIMPSON J SMART AJ

Friday, 10 August 2001

REGINA v THOMAS JOSEPH SEWELL

JUDGMENT

1 HEYDON JA: I agree with Smart AJ 2 SIMPSON J: I agree with Smart AJ. 3 SMART AJ: Thomas Joseph Sewell seeks leave to appeal against an interlocutory order of 10 May 2001 of Gibson DCJ refusing to allow Mr Sewell to withdraw his plea of guilty to 7 counts of using a false instrument knowing it to be false with intent to induce Westpac to accept it as genuine and thereby credit to Mr Sewell's account a specified sum of money to the prejudice of Westbus Pty Ltd (Mr Sewell's employer). Mr Sewell had also previously asked the judge to take into account 10 similar charges of which Mr Sewell had previously admitted his guilt. All charges were laid under s 300(2) of the Crimes Act 1900. 4 The 17 charges relate to offences which occurred between January 1992 and February 1993 and involve a total of $193,796.85. The police fact sheet alleges that Mr Sewell was employed as a manager of Westbus Pty Ltd in 1989 and that part of his duties involved arranging bus transport to take the place of trains, for example during track upgrades or when there were derailments. Mr Sewell alleged that in about May 1991 he entered into a verbal agreement with one of the owners and a director of Westbus whereby he was to be paid a commission of 5 per cent on turnover for new business which he obtained for the company. Counsel explained that this applied to the provision of bus services in the Blue Mountains. 5 Mr Sewell photocopied some blank invoices and placed details of bus jobs done on the photocopy invoices and delivered these to State Rail. It paid the invoices believing them to be correct and issued a cheque payable to Westbus Pty Ltd. Mr Sewell picked up each cheque, placed a Westbus stamp on the back of each cheque and endorsed it with a signature, making it payable to Prospect Promotions. The bank account of that entity was under the control of Mr Sewell and effectively owned by him. Each of the cheques was paid into that bank account. Subsequently, the proceeds of that account were withdrawn. 6 The Crown alleges that Mr Sewell was not authorised to sign over any of the cheques made payable to Westbus Pty Ltd nor to deposit any of the cheques directly into any account controlled by or owned by him. 7 The Crown alleges that Mr Sewell admitted what he had done as he believed that he was owed the money and this was the only way he could get it. He claimed that he had spent the majority of the money on gambling. 8 The matter has had a long history: (a) Mr Sewell was arrested and charged on 29 January 1996. (b) On 20 November 1998 he pleaded guilty in the District Court to 20 counts of using a false instrument under s 300(2) of the Crimes Act. He was represented by counsel. (c) On 26 February 1999 Judge Karpin imposed various sentences, the majority of which involved a not insignificant term of full time custody. (d) Mr Sewell appealed to the Court of Criminal Appeal against both conviction and sentence. He sought to withdraw his plea of guilty on the basis that he was entitled to raise a claim of right in answer to each charge, that is to claim an honest belief in his entitlement to act in the way he did notwithstanding that objectively such belief appeared to be unreasonable. Counsel for the Crown on that appeal conceded that such a claim of right was, as a matter of law available to the applicant and that it would not be in accordance with principle to deprive the applicant of the opportunity to put that defence before a jury. On 27 September 1999 the convictions were quashed and a trial was ordered. (e) On 8 May 2000 Mr Sewell was indicted in the District Court on 44 counts of using a false instrument. The trial aborted and a fresh trial commenced on 9 May 2000 before another judge. (f) Mr Sewell was again indicted and the trial proceeded. At the end of the mid-morning adjournment the Crown Prosecutor advised counsel for Mr Sewell that he intended to lead evidence from Mr R Ash, Group Controller of Westbus as to the quantum of the claim of right. It was designed to show that any claim of right would be for a much lesser sum than that appropriated by Mr Sewell. It was said that there were varying levels of profit and turnover on the contracts. The Crown conceded at the trial that if Mr Ash's evidence was accepted it would make a very significant difference to the amount that Mr Sewell may be able to say that he was owed. He now had a quite different case to meet. The Crown accepted that there would be a lot of work involved in meeting the changed case. The back up calculations to support Mr Ash's statement would take some weeks to do. The jury was discharged. The materials suggest that the executives of Westbus produced the further figures to the Crown at a very late stage. The matter was adjourned for mention until 10 May 2000. It is a pity that the detailed financial investigation was not done prior to the first sentence hearing and the earlier hearing before this Court. (g) During the course of the afternoon of 9 May 2000 and the morning of 10 May 2000 extensive discussions took place. As a result of discussions the Crown Prosecutor had with her instructing solicitor, Mr Ash and Det Compton on the afternoon of 9 May 2000 the Crown accepted that the accused had a possible claim of right to slightly less than $31,000. The Crown Prosecutor and her instructing solicitor conferred with the counsel and solicitor for Mr Sewell and the Prosecutor outlined the extent of the claim of right which would be accepted by the Crown and how the figure was calculated. She offered to accept a plea of guilty to 17 counts of using a false instrument from the original indictment which contained 20 counts. Three counts totalling $32,290.70 were removed from the indictment. The remaining 17 counts were divided into an indictment containing 7 counts and a Form 1 containing 10 counts. Counsel and the solicitor for Mr Sewell conferred with him. Just prior to luncheon on 10 May 2000 the Prosecutor was informed that the accused would plead guilty to the 7 counts in the indictment, acknowledge his guilt as to the 10 counts on Form 1 and ask that they be taken into account. (h) When the matter came on before the trial judge on the afternoon of 10 May 2000 Mr Sewell entered pleas of guilty to the 7 counts on the indictment and the Form 1 containing 10 counts and signed by him was handed up. As neither the Crown nor Mr Sewell was ready to proceed with the sentence hearing the matter was adjourned for sentence to 12 July 2000. (i) On 12 July 2000 as a result of the instructions counsel received prior to the sentence hearing he withdrew. The hearing was adjourned to 27 July 2000. On that day Mr Sewell filed a notice of motion seeking to withdraw his pleas of guilty. The hearing of that motion was stood over to 10 November 2000. On that day fresh counsel for Mr Sewell withdrew the notice of motion and the Court dismissed it. The matter was listed for sentence on 10 January 2001 with the judge directing that an updated pre-sentence report be obtained from the NSW Probation and Parole Service. Mr Sewell was directed to attend that Service's Windsor office within seven days. (j) On 10 January 2001 the fresh counsel and his solicitor withdrew as they felt unable to continue to appear for Mr Sewell due to something which had arisen in conference that morning. Mr Sewell then applied to have the matter stood over for sentence. The judge was unavailable due to other commitments to continue with the matter so it was listed before the Chief Judge on 25 January 2001. On that day Mr Sewell appeared for himself, and stated that he would be represented by another named barrister who was not available that day. The matter was listed for mention on 1 March 2001 to fix a hearing date for sentence. (k) On 1 March 2001 Mr Sewell again applied for leave to withdraw his plea of guilty. That motion was stood over to 26 March 2001 when it was listed for hearing before Judge Gibson on 10 May 2001. On that day he refused Mr Sewell's application and set a sentence hearing date of 29 June 2001. (l) On 18 June 2001 the application for leave to appeal to this Court was filed. It is out of time as Rule 5B of the Criminal Appeal Rules requires it to be made within 14 days of the interlocutory order. The application for an extension of time was based upon Mr Sewell being preoccupied with a serious medical condition (malignant tumour of the rectum). The Crown did not contend that an extension of time should be refused. 9 In his affidavit of 25 July 2001 Mr Sewell said that during a break in the trial in May 2000 his barrister stated that he had been shown some documents which he had not seen before and which may put a different light on his case and that if Mr Sewell wished he could apply to vacate the hearing. This led to the discharge of the jury. His barrister later that day said that having looked at the documents and the figures the case did not look very good for Mr Sewell. It was his word against that of a number of others. Also the figures shown to him by the Crown did not seem to be consistent with Mr Sewell's figures. Mr Sewell said that he inquired as to his options. He discussed with his counsel the implications of his plea of guilty and acknowledged that his counsel told him at some stage that the Crown was prepared to reduce the charges from 44 to 17. 10 Mr Sewell said that he was feeling extremely distressed and overwhelmed by being in court and wished to get the proceedings over as quickly as possible. He therefore informed his counsel that he wished to change his plea to guilty. His counsel explained that if he changed his plea to guilty he was admitting all the facts of the matter and that he intended to take the money. That meant that he would be abandoning his claim of right. Mr Sewell replied that he did take the money. He further said: "… I misunderstood the explanation … in that I assumed that a plea of guilty was simply admitting … that I had physically taken the money and admitting all the facts in relation to negotiating the cheques through my bank account and I assumed that the admission of intent was the intent to literally take the money, not an intent to take the money to the detriment of Westbus knowing that I was not entitled to it. I also assumed that the abandoning of my claim of right meant that I could no longer use it as a defence to the charges. I certainly did not realise that I could not use a claim of right as an explanation of the charges as a mitigating circumstance in relation to sentencing. I always maintained a claim of right with respect to the money taken, right from the first time I was interviewed by the police" 11 Mr Sewell asserted that his mental state was clouded by the fact that his wife suffered from cancer and became extremely upset every time the case was mentioned and when he had to go to court. Mr Sewell said that it was in these circumstances and because he believed that it was only by changing his plea to guilty that the number of charges would be reduced that he decided to make that change and raise the circumstances of his claim of right as a mitigating circumstance on sentencing. 12 Mr Sewell said that when he saw the Probation and Parole officer who was preparing his pre-sentence report he (Mr Sewell) raised his claim of right. Mr Sewell said that when he saw his barrister on 6 July 2000 his barrister regarded Mr Sewell's claim of right as inconsistent with his plea of guilty. On 10 July 2000 at a conference with his barrister and his solicitor the position was further explained and his barrister stated that he proposed to withdraw. 13 Mr Sewell said: "I now understand that I cannot maintain a guilty plea and still maintain that I have a claim of right over the funds taken. Had I fully understood this at the hearing of this matter I would never have changed my plea to guilty, as I never intended not to raise those issues in litigation". 14 The reasons advanced by Mr Sewell in his affidavit in support of his application are not easy to accept. 15 On 10 May 2000 Mr Sewell signed this document which was witnessed by his solicitor: "THOMAS JOSEPH SEWELL