Reported Decision : 150 A Crim R 97 New South Wales Court of Criminal Appeal CITATION : R v Guissepe Maltese [2004] NSWCCA 408 HEARING DATE(S) : 19/11/2004 JUDGMENT DATE : 19 November 2004 JUDGMENT OF : Simpson J at 21; Bell J at 22; Buddin J at 1 DECISION : Appeal allowed. Conviction be quashed and a verdict of acquittal entered. CATCHWORDS : Criminal Law - Appeal against conviction following plea of guilty - fresh evidence of police misconduct R v Hura (2001) 121 A Crim R 472 CASES CITED : R v KCH (2001) 124 A Crim R 233 R v O'Sullivan [2002] NSWCCA 98 PARTIES : Regina Guissepe Maltese FILE NUMBER(S) : CCA 2004/1846 COUNSEL : E Wilkins (Crown) PM Paish (Appellant) SOLICITORS : S Kavanagh (Crown) Watsons Solicitors (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 91/11/1325 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1846 SIMPSON J BELL J BUDDIN J FRIDAY 19 NOVEMBER 2004 REGINA v GUISEPPE MALTESE Judgment 1 BUDDIN J: The appellant appeals against his conviction in the District Court of having between 30 May 1990 and 16 August 1990 conspired with Ahmed Dumia and other unknown persons to commit an armed robbery. The sole ground of appeal is that his conviction constitutes a miscarriage of justice. 2 The appellant pleaded guilty to the offence on 3 November 1992 and on 1 December 1992 was sentenced by Judge Shadbolt to a term of 12 months imprisonment to be served by way of periodic detention. In passing sentence his Honour had regard to a further offence of possessing a loaded firearm which was intimately connected with the principal offence. The appellant completed his sentence on 10 December 1993. At the time of the alleged offence the appellant had just turned 19. His only prior conviction was for a driving offence which attracted a fine. 3 The appellant seeks to challenge his conviction notwithstanding the fact that he pleaded guilty to the offence. In those circumstances, it is necessary to have regard to the proceedings which took place before Judge Shadbolt. Unfortunately neither the transcript of the proceedings nor his Honour's Remarks on Sentence are still available. 4 However the appellant has sworn an affidavit in these proceedings to which is annexed a copy of the Crown brief in the matter. The appellant also relies upon an affidavit sworn by counsel who appeared on his behalf before Judge Shadbolt. The Crown's instructing solicitor has also sworn an affidavit to which is annexed a body of material. I will refer to some parts of that material in due course. 5 Of particular significance for present purposes is a signed record of interview between the appellant and a person who will be referred to as M5 for the purposes of these proceedings. In that interview which is dated 15 August 1990 the appellant made full admissions to the offences in question. He is also recorded as having admitted to police prior to the interview that he had planned to commit an armed robbery with Dumia on the Shell Service Station at East Roseville. His explanation as to how he had planned to commit the offence was in the following terms: I have been hangin (sic) around with Ahmed for a couple of months… I wanted some money to buy a car because I was sick of drivin (sic) mine. I knew that Ahmed had been caught doin(sic) armed robberies so I started talking to him about doin (sic) one, so I could get the money. I was lookin (sic) at doing the Shell, I had watched it a couple of times. I knew how to get away, down into the industrial area at the back…Well, I was just watchin (sic) the place, I knew they had a safe in the work shop…I thought that they had about thirty five grand in the safe. 6 During the interview the appellant was recorded as having been shown the transcript of an intercepted telephone conversation between himself and Dumia on 12 July 1990. He admitted that they had been discussing robbing the Shell Station in that conversation. He also admitted that he had obtained a revolver with which to commit the robbery. He also agreed that he had led police to where he had hidden it in bushland in East Roseville. The appellant was asked why he had hidden it there and he was recorded as replying "I was worried that if I had it at home, mum and dad might find it and then I would be in the shit. It's a good spot nobody goes there." He said that he and Dumia had been planning to do the robbery just before the service station closed on a Thursday or Friday evening. 7 In his affidavit the appellant swore that the record of interview was fabricated by the interviewing police officers. He said that he signed the interview because he was terrified. He said that he was desperate to get away from the station after having been struck in the head by M5's partner. He said that he had been taken by police to bushland near Roseville Bridge where they had dug up a parcel which contained the firearm alleged to be owned by him. He swore in his affidavit that he had never previously seen the firearm and that he had not directed police to the place where it had been located. 8 The appellant went on to say that he had instructed lawyers to appear on his behalf at a contested committal hearing which occupied three days of hearing time in 1991. We have been provided by the Crown with the transcript of those proceedings and it is clear that the voluntariness of the record of interview was put in issue at the time. Moreover a file note made by a solicitor employed by the Director of Public Prosecutions indicates that counsel for the appellant had subsequently foreshadowed that the record of interview would be challenged at the trial. 9 The appellant said that he had changed his plea to one of guilty because "the judge and my legal representatives indicated I could not successfully defend the charge having signed a confession. The trial, on the advice of my lawyers, was by judge alone. The judge, after reading the record of interview, expressed a preliminary view". The appellant swore that he was not guilty of the offence. He said that it was entered "in response to the situation I was then confronted with and how I might secure the best result, that is, the best sentence in the circumstances". 10 The appellant gave evidence at the Police Integrity Commission in June 2002. The court has been provided with a transcript of his evidence. It is consistent with what he said in his affidavit although he provided greater detail in his evidence. He said, for example, that after he signed the record of interview he was told by one of the senior officers involved in the investigation that because he had co-operated, he would get bail. He was in fact released on bail after being charged. He said that after the judge expressed his view as to the significance of the signed confession, he had been advised by his barrister to change his plea because "he said we had no chance". His barrister also advised him that "if you go in there and plead guilty he'll give you a lenient sentence" which he understood to mean something other than a full-time custodial sentence. As I have said the appellant did not receive a full-time custodial sentence, and in the circumstances, it would appear that considerable leniency was extended to him. 11 Counsel who appeared at the trial supported the appellant's version of events. In his affidavit he swore that: I told Mr Maltese that upon his trial the jury would assess the evidence of the prosecution and defence. On the one hand there were three police detectives who would swear that the record of interview was properly conducted and that he was not threatened or forced to adopt it. I recall explaining to him that I might be able to break them all down in cross-examination so that they would admit that they were lying and that his version was correct. I cautioned him, however, that I had never seen police make such admissions. Alternatively, we may be able to weaken their testimony enough to create suspicion in the jury's mind, and create a reasonable doubt. However, I was not confident that we could achieve that either. I explained to Mr Maltese that he did not have any witnesses to support his version of events, there were three experienced detectives with no pressing reason to lie given that the young man was not very articulate and, in my opinion, would not make a very good witness. I explained that the percentage chance of being acquitted was in the order of about one percent. I then advised Mr Maltese of the probability of receiving a full-time custodial sentence of perhaps two to five years if he were to be found guilty by the jury. He was extremely concerned about serving a gaol sentence and asked what his options were. Whilst advising Mr Maltese with respect to his options I told him that if he were to plead guilty he had a good chance of avoiding a full-time custodial sentence. Mr Maltese instructed us to enter a plea of guilty on his behalf. I did so and recall that I was very restricted in what I was able to say to the Court. 12 Although, as I have said, the transcript of the proceedings before Judge Shadbolt is not available, the Crown has been able to retrieve some material from its files including notes made at the time by the instructing solicitor for the Crown. This material also provides corroboration for the appellant's version of events. It would appear from that material that the appellant originally pleaded not guilty at his trial. M5 commenced giving evidence but his evidence was interrupted by legal argument. It is unnecessary to refer to the details of that argument. Suffice it to say that during the course of it, counsel for the appellant indicated that submissions would be made concerning pressure which had been placed upon the appellant in relation to the record of interview and what was said in it. Nevertheless counsel indicated that he would not be challenging the admissibility of the interview. That apparently prompted the trial judge to indicate that if the interview was not to be challenged, then the appellant may need to change his plea as the trial judge did not want to see the appellant deprived of the advantage of a discount for a plea of guilty. The appellant thereafter changed his plea to guilty. The impact of such an indication from the presiding judge must have been profound. See R v KCH (2001) 124 A Crim R 233 at 239. 13 More importantly, there is support for the appellant's version of events in the evidence given by M5 at the Police Integrity Commission. He said that he had informed his superior officer that he had reservations, having spoken to the appellant, as to whether the appellant was involved in any of the armed robbery offences which police were then investigating. He said that he was told by his superior to "load him [the appellant] with a firearm". As a result of that advice, he and another detective took the appellant to the Roseville Bridge area. They had with them a firearm which they had obtained from the police station. At the scene, they had dug up the firearm and had photographed the appellant in possession of it. M5 gave evidence that those parts of the interview, which attributed to the appellant admissions as to having possessed the firearm and to the appellant having admitted leading police to where it was located, were fabricated. He also said that the other detective had struck the appellant over the head with an old map and that the appellant had as a result signed the interview "under duress". M5 was unable, given the passage of time, to recall whether or not the rest of the record of interview was fabricated in its entirety. He indicated, however, that there was information that appeared in it which was known to police at the time. He accepted that it was quite possible that the balance of the interview, or at least parts of it, were fabricated as well. As he said "it would stand to reason that that may well have just been done for him". Although he said that he was no longer able to recall on a question by question basis what had taken place, he did say however that on the whole "most of it wouldn't have" occurred. 14 He agreed that he had been challenged at the committal hearing about having fabricated the admissions which he alleged had been made by the appellant. He also agreed that he had been challenged about the assault. He said that he had lied when he had given evidence rejecting those accusations. He conceded that he was very surprised and relieved when the appellant pleaded guilty. Finally he agreed with the proposition that, to his knowledge, it was in the circumstances "an improper plea". 15 For completeness the Crown has also provided the court with transcripts of the evidence given by two other detectives at the Police Integrity Commission. In short each denied any wrongdoing in relation to their involvement in this matter. 16 The Crown case against the appellant also consisted of the intercepted telephone conversation to which I earlier referred between the appellant and the man Dumia on 12 July 1990 and more particularly the admissions allegedly made by the appellant in respect of it. Its significance is obviously affected by the evidence of M5. The Crown had also sought to rely at trial upon several other intercepted conversations between the appellant and Dumia. Those conversations are not capable on their own of providing a sufficient basis upon which to sustain a conviction. 17 The appellant, as I have said, asserts that there has been a miscarriage of justice. The principles to be applied in a case such as the present are not in doubt. In R v Hura (2001) 121 A Crim R 472 Spigelman CJ, with whom Simpson J and Carruthers AJ agreed, said: There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in Toro-Martinez (2000) 114 ACrimR 533. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty: · where the appellant "did not appreciate the nature of the charge to which the plea was entered": Ferrer-Esis (1991) 55 ACrimR 231 at 233. · where the plea was not "a free and voluntary confession": Chiron (at 220 D-E). · the "plea was not really attributable to a genuine consciousness of guilt": Murphy [1965] VR 187 at 191. · where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv (1986) 22 ACrimR 73 at 80. · where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt": Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995). · the "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt": Maxwell at 511; 186-187. · if "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt": Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320. Particularly pertinent for the present case is a frequently cited passage in the judgment of Badgery-Parker J in Davies where his Honour said: "If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial." (477-8) 18 It is common ground that the fresh evidence should be admitted as it satisfied the relevant tests for its reception. In view of the fresh evidence, and particularly the concessions made by M5 to which I have referred, this Court could not be satisfied beyond reasonable doubt as to the voluntariness of the appellant's confession. Accordingly, it is clear that there is a real doubt about the appellant's guilt. 19 In light of all the evidence I am also persuaded that the appellant's plea was not entered "as a genuine recognition of guilt". It is important to recall that this trial took place a number of years ago and the historical context in which it occurred should not be overlooked. In that respect it is helpful to refer to what this court said in R v O'Sullivan [2002] NSWCCA 98, a case which bears considerable resemblance to the present one. Sheller JA, with whom Grove and Simpson JJ agreed, said: The assessment the appellant and those acting for him made, that his evidence would not be accepted over the police evidence that his confession was voluntary, was a sound assessment. In the context of that time and in the absence of anything to undermine the credit of the police officers who apparently were regarded as exemplary officers, the appellant had no chance of avoiding conviction either in the Local Court or the District Court. This is a sad reflection on the way criminal justice was then administered. The plea of guilty was, I am satisfied, induced not by a consciousness of guilt but by a recognition that the confession although given under threat could not effectively be challenged and that conviction was inevitable. The only hope for the accused was to gain some advantage by having the sentence reduced, it was hoped, to a non-custodial sentence if the appellant pleaded guilty. (at para 45) 20 In all the circumstances I would propose that the appeal be allowed, that the conviction be quashed and a verdict of acquittal be entered. It is to be observed that the Crown very properly indicated that it did not oppose the making of those orders. 21 SIMPSON J: I agree. 22 BELL J: I agree. 23 SIMPSON J: The orders of the court will be as proposed by Buddin J. ********** Last Modified: 11/29/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.