New South Wales Court of Criminal Appeal CITATION : R v Khan [2002] NSWCCA 521 FILE NUMBER(S) : CCA 60811/01 HEARING DATE(S) : 19 December 2002 JUDGMENT DATE : 19 December 2002 PARTIES : Regina v Abdul Sameer Khan JUDGMENT OF : Giles JA at 1; Sully J at 32; Dowd J at 33 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3018 LOWER COURT JUDICIAL Latham DCJ OFFICER : COUNSEL : D M L Woodburne - Crown P Byrne - Appellant SOLICITORS : S E O'Connor - Crown Ross Hill and Associates - Appellant CATCHWORDS : Criminal law - leave to withdraw plea of guilty - leave if plea not attributable to consciousness of guilt - no separate ground that a doubt about guilt - ultimate question whether miscarriage of justice - burden on applicant to establish basis for leave - findings of fact as to consciousness of guilt not shown to be in error. Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490; Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; R v Boag (1994) 73 A Crim R 35; R v Chiron (1980) 1 NSWLR 218; CASES CITED: R v Cincotta (CCA, 1 January 1995, unreported); R v Davies (CCA, 16 December 1993; R v Hura (2001) 121 A Crim R 472; R v Liberti (1991) 55 A Crim 120; R v Murphy (1965) VR 187; R v Wilkes [2001] NSWCCA 97. DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60811/01 DC 01/21/3018 GILES JA SULLY J DOWD J Thursday 19 December 2002 R v Abdul Sameer KHAN Judgment 1 GILES JA: The appellant pleaded guilty to two counts of armed robbery, applied for but was refused leave to withdraw his pleas of guilty, and was convicted and sentenced to terms of imprisonment. This is an appeal against conviction on the ground that he should not have been refused leave to withdraw his pleas of guilty. The course of trial 2 The appellant was charged with a series of offences alleged to have occurred in late January and early February 2000. There were eight charges in all, four of robbery in company, one of stealing a motor vehicle and three of armed robbery. 3 The eight charges were listed for hearing on 28 May 2001. The appellant appeared before Judge Armitage QC, represented by counsel and solicitor. He pleaded guilty to two of the charges of armed robbery and not guilty to the remaining six charges. Sentencing on the two charges to which he had pleaded guilty was deferred, and the trial of the remaining six charges proceeded. 4 The Crown case depended on the evidence of two alleged co-offenders. Each of them refused to answer questions asked by the Crown Prosecutor. Each of them was charged with contempt, and sentences of imprisonment were later imposed, see Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 and Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490. The jury was discharged and the appellant's trial was relisted for 29 October 2001. Sentencing on the two charges to which he had pleaded guilty was adjourned to that date. 5 On 29 October 2001 the appellant appeared before Judge Latham, represented by new counsel and solicitor. He foreshadowed an application for leave to withdraw the pleas of guilty. The trial on the other charges was deferred. Over the next few days the application was made, evidence was taken and submissions were received. On 1 November 2001 her Honour gave judgment in which she refused leave to withdraw the pleas of guilty. 6 The remaining six charges intended for trial were then the subject of a no bill, because of the problem with the two alleged co-offenders. On 5 November 2001 the judge was told of the no bill, and an ex officio indictment was presented for an additional charge of receiving to which the appellant pleaded guilty. 7 On 16 November 2001 the appellant was sentenced on the two charges of armed robbery and the receiving charge. The application for leave to withdraw the pleas of guilty 8 The evidence on the application consisted of an affidavit of the appellant's new solicitor, oral evidence from the appellant, oral evidence from the police officer in charge of the appellant's case, and the tender of documents in files of the Department of Corrective Services, plus the tender of a statement from Mrs Etuati, to whom I will later refer. For present purposes attention can be focussed on the appellant's evidence. 9 The appellant had been arrested on 9 February 2000, and with the possible exception of a few days had been in custody at all times thereafter. The basis for his application was that he had been attacked whilst in custody on a number of occasions and threatened on other occasions, and that he had pleaded guilty to the two charges in the hope that the attacks and threats would abate. 10 The appellant said that very shortly after he went into custody he was attacked by a group stating that "Jessica" was their aunty and that it was his fault that "she got caught". He said that "Jessica" was Jessica Etuati. At the time of the offences the appellant and the alleged co-offenders were living at Mrs Etuati's house. The car the subject of the charge of stealing a motor vehicle was at the house, and Mrs Etuati was seen driving it and was charged with its unlawful use. Mrs Etuati was also the registered owner of another motor vehicle alleged to have been used in one or more of the armed robberies. She was interviewed in relation to the charges against the appellant. Mrs Etuati's son, Jack Etuati, was arrested and charged in relation to two of the robberies in company, and her daughter Jennifer Anderson appears also to have been interviewed by the police. At least to some extent the police interest in Mrs Etuati and these members of her family came from things told to them by the appellant when he was interviewed at the time of his arrest. 11 A week or so later, the appellant said, and after some further attacks not expressly linked by the attackers with any trouble caused by the appellant to Mrs Etuati, he was abused by a number of Islanders who called him "a dog" and "a giveup". The Islanders kept saying that he had given Jessica up and that he should "take the rap", and threatened him with stabbing if he did not. 12 The appellant was put under protection or strict protection as a result of the attacks, although not very effectively. However, he did not tell the prison authorities what he told the judge. He then attributed the attacks to named persons unconnected with the Etuati family and to reasons other than having caused trouble to Mrs Etuati or members of her family. In particular, he attributed them to a Ben Rohobatini and a Sam Roccufu, and to an unconnected initial attack whilst elsewhere in the gaol. 13 According to the appellant, the immediate cause of him pleading guilty was that, shortly before the trial intended for 28 May 2001, he was told by a fellow inmate that the Islanders had asked that inmate to stab the appellant. The appellant said that he pleaded guilty to the two armed robberies in order to "see if they would lay off if I told them if they see some kind of attempt that I am trying to take the blame they will lay off me". He said that he just picked any two of the charges. 14 In fact any police action against Mrs Etuati or her family was concluded well prior to this time. Mrs Etuati was given an attendance notice to attend court, failed to do so, and pleaded guilty and was fined in August 2000. Jack Etuati pleaded guilty to the charges against him and was sentenced, also in August 2000. No police action was taken against Jennifer Anderson. 15 The appellant said that he did not tell his original counsel and solicitor of the assaults and threats, or that he was pleading guilty because of them. The judge's decision 16 The judge identified as issues - "Firstly, were the assaults linked to the applicant's information to police with respect to the Etuati family and secondly, and more crucially, did the applicant genuinely believe that the threats were so linked so as to coerce pleas of guilty to the armed robberies which would not otherwise have been entered." 17 Her Honour accepted that there was a possibility, albeit remote, that the attacks upon the appellant within the prison system "were linked to specific information provided by the applicant to the police", although her Honour thought it far more likely that the attacks were "motivated by general hostility from the Etuati family and/or members of the Islander community, perhaps based upon an imperfect understanding of the applicant's role in the arrest of Jessica Etuati". 18 But her Honour continued - "In any event, even if that issue were to be resolved in the applicant's favour it does not dispose of the present application. As I said the more crucial issue is whether the applicant genuinely believed that the threats and assaults were linked to his information provided to police, such as it was, and whether it was that which caused him to enter pleas of guilty to offences in relation to which he had thus far maintained his innocence. In my view the applicant's assertion in that regard must be rejected. The reasons that I have for rejecting that assertion are principally based upon the inherent absurdity of the prisoner's request to Corrective Services authorities for protection, unsupported by reference to any person connected with the proceedings which the applicant faced. The authorities would not have been in any position whatsoever to carry out the purpose of the protective custody which the prisoner sought. Further, the claim by the applicant that his notion of taking the rap was to arbitrarily pick two armed robberies out of eight offences for which he then stood charged, in the hope that that would placate his assailants, has the ring of untruth about it. Ms Kluss, in her submissions, relied upon what she said was the applicant's limited intellect. Certainly the applicant may lack something in terms of literacy and he is a relatively young man, obviously not sophisticated nor perhaps in possession of an education to a satisfactory standard. Be that as it may, he is by no means incapable of understanding the importance of placating persons who, upon his assertion, assaulting him severely and regularly, by reference to some meaningful action which would fob them off, as it were. It is all the more remarkable that he chose two armed robbers, that is, those allegedly committed on 24 January and 7 February 2000 in relation to which none of the Etuati family appeared to have any direct involvement. Certainly the vehicle in which Jessica Etuati was charged was a vehicle which was connected with one of the offences, that is the offence on 9 February 2000 and perhaps connected with the offences on 7 February and 24 January, but if the applicant was to so call 'take the rap' a person of the applicant's limited understanding would nonetheless seek to enter pleas of guilty to charges which had some relevant nexus with the Etuati family. Accordingly, I am not satisfied that the applicant has discharged the relevant onus and I decline the application." The appeal 19 Whether leave to withdraw a plea of guilty should be granted is a matter of judicial discretion. The appellant accepted that he had borne the onus of establishing that leave should be granted to withdraw his pleas of guilty, and that the onus was not lightly discharged. The judge correctly so directed herself, referring inter alia to R v Liberti (1991) 55 A Crim R 120 in which Kirby P said (at 122) - "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interests in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neil (1979) 2 NSWLR 582; (1979) 1 ACR 59 ; Sagiv (1986) 22 ACR 73 at 81." 20 Although her Honour did not expressly refer to it, circumspection was appropriate in the present case. The appellant's trial in May 2001 had aborted because the alleged co-offenders refused to give evidence. It was common ground that the Crown case on the two charges of armed robbery also depended on the evidence of the alleged co-offenders. The advantage to the appellant of withdrawing his pleas of guilty was obvious. 21 The appellant submitted, somewhat belatedly, that it was not open to the judge to find against him on the "crucial issue" which she identified. He said that her Honour placed undue weight on the request for protection unsupported by reference to any person connected with the proceedings he faced, and on the arbitrary picking of two of the eight charges. In my view, what her Honour meant in the first respect was that the appellant had attributed the attacks to others, that casting considerable doubt on the asserted consequence for his pleas of guilty. Her Honour's conclusion must have been influenced by seeing and hearing the appellant, and I do not think it can be said that her conclusion was not open. Indeed, it stretches credulity that the appellant would have thought that "taking the rap" would undo or atone for whatever trouble he might have caused to Mrs Etuati or her family, or that he would have "taken the rap" on two out of the eight charges being charges with remote if any connection with the family and, according to the appellant, chosen by just picking any two. 22 The appellant then submitted that the judge erred in failing to determine whether the pleas were attributable to a consciousness of guilt and whether there was a real question about his guilt, citing from R v Wilkes [2001] NSWCCA 97 in which Wood CJ at CL discussed the cases on withdrawal of a plea of guilty and said (at [20]) - "The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations: a) whether the advice given to the appellant was or was not imprudent and inappropriate; b) whether his plea was or was not attributable to a consciousness of guilt; and c) whether the material before this court shows that there is or is not a real question about his guilt." 23 The present case is not a wrong advice case, and only the statement of the second and third considerations is presently material. 24 An appeal can be successfully brought against a conviction following a plea of guilty where it is established that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them. That may be established if it is accepted that the plea was induced by threats, see R v Boag (1994) 73 A Crim R 35 at 37; R v Cincotta (CCA, 1 January 1995, unreported). In such a case the admission of the necessary legal ingredients of the offence would normally carry consciousness of guilt, but the consciousness of guilt is negated by it being accepted that the plea was induced by threats. 25 But I do not think that the judge failed to determine whether the appellant's pleas were attributable to a consciousness of guilt. Her Honour did not accept that the appellant's pleas were induced by the attacks and threats of which he gave evidence. By her finding in that respect, the judge determined that the pleas were attributable to a consciousness of guilt. 26 Nor in my view did the judge err in failing to determine whether there was a real question about the appellant's guilt. 27 The statement of the third consideration by Wood CJ at CL reflects that, even if it be found that the plea was not attributable to a consciousness of guilt, nonetheless leave to withdraw the plea of guilty will be refused if there is not a real question about guilt. Thus in R v Davies (CCA, 16 December 1993, unreported) it was said that leave to withdraw a plea of guilty will be refused if the case against the accused is overwhelming, and in R v Hura (2001) 121 A Crim R 472 it was said that if the person entering the plea of guilty did not entertain a genuine consciousness of guilt then the plea of guilty should be set aside if, but only if, the appellant shows that there is a real question to be tried. The statement of the third consideration followed citation of the passage from R v Hura so stating, and did not endorse a separate ground for withdrawal of a plea of guilty. 28 Putting aside cases where on the admitted facts the accused could not in law have been convicted of the offence charged, R v Davies also shows that the fact the accused can point to some doubt about his guilt, absent the plea of guilty, does not mean that leave to withdraw the plea will be granted. In that case it was said - "It is clear, however, from the authorities to which I have referred that that is not sufficient to justify the intervention of this court and properly so, because to hold otherwise would be to open the way to appeals based upon perfectly genuine pleas of guilty entered by an accused person who knew that he or she was guilty notwithstanding that there was evidence capable of raising a doubt if the matter went to trial. Always in such cases attention must be focused on the circumstances in which and the reasons for which the plea was entered." 29 The ultimate question for the Court is whether there has been a miscarriage of justice, see for example R v Murphy (1965) VR 187; R v Chiron (1980) 1 NSWLR 218; R v Davies. So far as the answer to that question may have been informed by whether there was a real question about the guilt of the appellant, no such case was put to the judge. Counsel for the appellant, not counsel on the appeal, put the stark issue of whether the appellant "was acting in pursuance of his own free will and whether or not his will was overborne". Her Honour can hardly be criticised for failing to make a determination when exercising her discretion when she was not asked to make it. 30 In any event, while the appellant asserted his innocence, assertion does not mean a real question about guilt. Proof of the Crown case depended on the evidence of the alleged co-offenders, and if the alleged co-offenders maintained their intransigence it may have been that the Crown could not prove its case. That goes to proof of guilt and again does not mean a real question about guilt. The judge was otherwise not in a position to say that there was a real question about the appellant's guilt. In the appeal it was submitted that the fact that the Crown case depended on the evidence of the alleged co-offenders itself raised a real question. I do not think that is so, but repeat that no such submission was made to the judge. Given her Honour's finding against the appellant in relation to consciousness of guilt, it was not a matter for her to go into for herself. 31 I do not think the crucial finding of fact has been shown to have been such that this Court can intervene, nor do I think that error has been shown in the exercise of the judge's discretion or that there has otherwise been a miscarriage of justice. I propose that the appeal be dismissed. 32 SULLY J: I agree. 33 DOWD J: I also agree. 34 GILES JA: That will be the order of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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