R v LAKALAKA [2004] NSWCCA 207

New South Wales Court of Criminal Appeal

CITATION : R v LAKALAKA [2004] NSWCCA 207 revised - 16/08/2004 HEARING DATE(S) : 4 June 2004 JUDGMENT DATE : 4 June 2004

JUDGMENT OF : Hulme J at 1; Bell J at 22; Hislop J at 24 DECISION : See para 25

PARTIES : Regina Soane Lakalaka FILE NUMBER(S) : CCA 60102/04 COUNSEL : Crown: E. Wilkins Applicant: A.W. Street SC with R.J. Carruthers SOLICITORS : Crown: S. Kavanagh Applicant: Slattery Thompson

- 7 - IN THE COURT OF CRIMINAL APPEAL 60102/04

HULME J BELL J HISLOP J

Friday 4 June 2004 REGINA v SOANE LAKALAKA Judgment 1 HULME J: Soane Lakalaka has made an application to this Court to be allowed to, effectively, withdraw pleas to two charges which were entered in the District Court. He had been indicted on those two, and a number of other charges, but pleaded guilty to those two. Apparently it was contemplated, or agreed, that the other charges would not be pursued by the Crown. An affidavit by him has been sworn in support of his application and a further affidavit from his present solicitor has also been filed. 2 The Crown indicated in the District Court, secondly, in the course of a bail application by Mr Lakalaka and, thirdly we are informed, before the Registrar in this Court, that it was consenting to the application to withdraw the pleas. However, some short time after the appearance before the Registrar, on or about 6 April the Crown filed submissions indicating that the Crown took the view the question was one of jurisdiction for the Court. It has been submitted that that is a change of stance by the Crown, which the Court should not permit. 3 The Crown has subsequently made application to the Court, and that is the application presently before this Bench, for orders directed to the legal advisers who had appeared for Mr Lakalaka in the District Court requiring that those persons attend here on the day appointed for the hearing of the application to have the pleas set aside, and also seeking "any instructions from the applicant, Soane Lakalaka, and any documents evidencing those instructions, in relation to the charges of incest and any other charge in relation to District Court matter 03/11/0202". 4 Counsel has appeared today on behalf of Mr Lakalaka to oppose the Crown's application for the issue of what I may conveniently refer to as subpoenas. The grounds of the opposition advanced are three: Firstly, it is suggested that it would be an abuse of process for the Court to allow the Crown to adopt a stance different from that which it adopted in the District Court and subsequently, of consenting to the application; secondly, it was submitted that in respect of the subpoenas to give evidence there was no jurisdiction, or perhaps no power, to issue such subpoenas; thirdly, that the form of the subpoenas duces tecum were oppressive. 5 The basis for the first ground of opposition was that the Crown should not be permitted to, as it were, approbate and reprobate. It was acknowledged that the principle of estoppel does not apply in the criminal jurisdiction. If that is so, I confess that I do not see, at least absent something which could be regarded as appropriate prejudice, and perhaps not even then, what the basis for the submission, couched in the words "approbate and reprobate", is. In practical terms the principles precluding conduct so described involve some benefit derived or, on the other hand prejudice suffered, as a result of the first course of conduct pursued. 6 Although I asked counsel for Mr Lakalaka on a number of occasions to identify the benefit, or prejudice, which it was suggested had occurred, I did not receive an answer which persuades me, in any way, shape, or form, that there has been such benefit or prejudice. Of the very nature of things, it is unlikely that the Crown would have gained any benefit. Perhaps it might be said that Mr Lakalaka has suffered the disadvantage that there has been a change of stance by the Crown, but, given that the ultimate decision is one for the Court in any event, I do not see that this could be regarded as a sufficient disadvantage as to make it unfair for the Crown to change its stance. 7 Indeed I am not really persuaded that there has been anything that would be regarded as reprobation, if I can use that term, by the Crown. This Court depends upon the Crown, in many cases, to provide assistance to it and to provide a contradicter, even in matters where the Crown has no particular interest of its own. 8 Counsel appearing for the Crown today indicated that the stance which the Crown was taking was that it was a matter of jurisdiction for the Court whether to permit Mr Lakalaka the relief he seeks, and the issuing of the subpoenas was directed to ensuring that there was available to the Court evidence, which it was not unlikely to wish to have available, on the hearing of the application. 9 Such a stance is a proper one for the Crown to adopt. Certainly there have been cases where, in applications to set aside pleas or on some other basis to suggest a miscarriage of justice, flowing from events not the subject of record in a trial, the Court has felt obliged to adjourn, in order to obtain additional evidence upon which to make a determination. 10 I am not persuaded that the first ground of opposition advanced to the issue of the subpoenas is correct. However, this application is only for the issue of subpoenas. It is neither necessary nor desirable for a final decision to be made on the merits of this first ground of opposition. It is sufficient for me to say that it is not so obviously correct that I would deny the Crown the opportunity of having at the final hearing, the evidence it seeks. 11 The foundation for the second argument is said to lie in section 12 (1) (b) of the Criminal Appeal Act. So far as is presently relevant s12 provides: 12(1) The court may, if it thinks it necessary or expedient in the interests of justice: (a) order the production of any document, exhibit, or other thing connected with the proceedings; and (b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order any such persons to be examined before any judge of the court or before any officer of the court or other person appointed by the court for the purpose, and admit any deposition so taken as evidence; and (c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness; and (d) … and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial." 12 Counsel for Mr Lakalaka agreed that the subpoenas duces tecum were authorised under section 12 (1) (a). However, he submitted that the legal advisers who had appeared for his client in the District Court did not fall within the expression "compellable witnesses at the trial to attend and be examined". To aggregate the words in that way is to misread the paragraph. What the paragraph does is to order "any persons who would have been compellable witnesses at the trial" to attend and be examined before this Court. 13 Mr Lakalaka's legal advisers at his trial were, at that trial, compellable witnesses. It is in the highest degree unlikely, in the nature of things, that they would have had any useful evidence, which was not the subject of professional privilege, to give but that did not make them persons who were not compellable witnesses. The argument based on section 12 (1) (b) fails. Those persons can be ordered to attend and be examined before this Court. 14 The third ground of the application, as I have said, directs attention to the terms of the subpoenas duces tecum. In that regard, it was pointed out that Mr Lakalaka, in his affidavit filed in this Court, had referred to a number of discrete conversations, which he said he had had with one or more of his legal advisers on the day, or that day and the day before his plea. It was submitted that the form of the subpoenas indicating a request for material extending over the whole, as it were, of the legal advisors' involvement with him in connection with the District Court trial was seeking a deal of material which had no conceivable relevance, to the particular conversations or statements he relies on for his substantive application here. 15 At this stage this Court is in no real position to make a judgment on that issue. The basis of his application to this Court is that his pleas were "not free, voluntary and pursuant to a genuine consciousness of guilt". Clearly, very relevant to the latter aspect of this was what he may have said to his legal advisers on the first occasion he ever saw them. 16 It is conceivable that, in the course of his instructions to them, he made statements, if not indicative of guilt, at least indicative of the Crown being able to establish, or go a long way towards establishing, his guilt in respect of all or any of the charges which he was facing. It seems to me it may be very relevant, in judging whether his pleas were free, voluntary and pursuant to a genuine consciousness of guilt, to see what it is he had said to his lawyers in relation to all of the issues arising in respect of the charges he was facing. 17 For all this Court knows, he may have been told, upon the basis of his instructions, that he had a very good chance of being convicted in respect of all offences, and that he would be well-advised to plead guilty to two, even if those were ones he disputed, rather than face the risk of conviction on eleven or thirteen. Thus it is conceivable that all, or any, of the communications he had with his legal advisers may have a bearing on the issues in his substantive application. 18 That is not, of course, to say that all of the communications or records thereof will have such a relevance, but the extent to which such material should be made available during the course of the substantive application is not a matter for the Court at this time. 19 The expression used in the proposed subpoenas "in relation to" echoes that which was the subject of disapproval in The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, but that was in an entirely different context from that here. Here, there is a specification of the District Court matter involved, and one may infer, having regard to the way that legal files, or briefs, are kept, that there will be no difficulty in those who are asked to produce the documents being able to identify those which are required, and distinguish them from documents which are outside the ambit of the subpoena. 20 There are, I think, a couple of minor changes that should be made to the form of the subpoena. On its face, the words "in relation to" are used twice and, conceivably, the charges of incest referred to are charges in addition to those described as "in relation to District Court matter 03/11/0202". I have not yet heard the parties on the precise form of any change, but, if, in fact, the incest charges referred to are included within the charges the subject of the District Court matter identified, it should be easy to reformulate the document. 21 For the reasons I have indicated, I see no merit in the grounds of opposition to the Crown's application for the issue of the subpoenas and, subject to amendment along the lines that I have indicated, in my view this Court should issue those subpoenas. 22 BELL J: I agree with the orders proposed by Hulme J. 23 I would prefer to express no opinion on ground 1, save to say that I do not consider the Crown's contention that it should be permitted, upon the hearing of the appeal, to test the assertions made by the appellant in his affidavit to be an untenable one, and, accordingly, I am of the view that orders under section 12 (1) of the Criminal Appeal Act should be made for the reasons that Hulme J has given. 24 HISLOP J: I concur with Bell J. 25 HULME J: The Court makes orders in terms of the two documents addressed to Mr Peter Mitchell Paish in the form initialled by me and dated today. 26 The Court makes orders directed to Mr Hussein Abou-Ghaida also in the form of the two further documents initialled by me and dated today. ********** - 6 -