Augusto Piras v Regina [2006] NSWCCA 396

Reported Decision : 167 A Crim R 260

New South Wales Court of Criminal Appeal

CITATION: Augusto Piras v Regina [2006] NSWCCA 396

HEARING DATE(S): 5 December 2006

JUDGMENT DATE: 13 December 2006

JUDGMENT OF: Sully J at 1; Howie J at 58; Hall J at 59

DECISION: Applicant granted such extension of time as may be necessary in order to permit of his making the application which he lodged pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) on 14 June 2006 and subsequently amended; Leave to appeal refused and application for such leave dismissed

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)

House v The King (1936) 55 CLR 449 R v Foley [1963] NSWR 1270 CASES CITED: Reg v KCH [2001] NSWCCA 273 Winningham v The Queen (1995) 69 ALJR 775 Vakauta v Kelly (1989) 167 CLR 568

PARTIES: Augusto Piras Regina

FILE NUMBER(S): CCA 2006/1379

COUNSEL: J. Dwyer - Crown A. Howen - Applicant

SOLICITORS: S. Kavanagh - Crown Anderson Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0022

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 18 May 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1379

SULLY J HOWIE J HALL J

13 December 2006 Augusto PIRAS v REGINA Judgment

SULLY J:

Introduction 1 Before the Court is an application, brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW), of Mr. Augusto Piras, ("the applicant"). The applicant applies for leave to appeal against an interlocutory judgment of his Honour Judge Williams of the District Court. The nature of that judgment and the background to it are as follows. 2 On 4 December 2002 the applicant was arrested and was charged with having supplied a commercial quantity of heroin. On 11 February 2004 he was committed for trial upon that charge. Committed with him for trial was one David Hampson. In due course the joint trial of the applicant and Mr. Hampson was fixed to commence on 15 June 2004. 3 The joint trial duly commenced on that date. The presiding Judge was his Honour Judge Goldring. The applicant was then represented by Mr. David Price of counsel instructed by M/s Janet Leary. The applicant pleaded not guilty and a voir dire was thereupon commenced for the purpose of testing the admissibility in the Crown case of the contents of a number of video tapes which recorded certain aspects of surveillance operations that had been carried out in connection with the applicant and with Mr. Hampson. 4 The playing of the surveillance tapes occupied some eight Court sitting days. Judge Goldring was moved to comment that in his Honour's opinion, and based upon what his Honour made of the contents of the tapes, the Crown might well have difficulty in proving that the dealings which were shown in the tapes as having taken place between the applicant and his co-accused had involved a commercial quantity of heroin. His Honour's observation led to a course of plea bargaining between the Crown and the accused's then legal representative. 5 The up-shot of that plea bargaining was that on 24 June 2004 the applicant pleaded guilty to having knowingly taken part in the supply of heroin. That plea having been taken, the applicant's matter was stood over to 20 August 2004 for sentence; and a pre-sentence report was requested. 6 There was a subsequent change in legal representation. Mr. David Price was replaced as counsel by Mr. Alexander Howen of counsel. M/s Leary ceased to act as instructing solicitor. 7 There ensued, after a number of adjournments of the proceedings on sentence, the giving by the applicant to Mr. Howen of instructions to make an application to change his plea from the plea of guilty to a plea of not guilty. Those instructions were given on 18 May 2005. 8 That application came on for hearing on 16 March 2006 before his Honour Judge Williams. Mr. Howen appeared for the applicant. The hearing occupied 16, 17 and 21 March; 7 April; and 12 May. On 18 May 2006 his Honour delivered a reserved judgment. His Honour refused an application, which had been made on 12 May, to reverse the applicant's plea of guilty and made certain ancillary orders, the detail of which is not at present relevant. It is against that refusal to permit a change of plea that the applicant seeks leave to appeal. 9 The original application for leave to appeal was filed on 14 June 2006. It notified the following intended grounds of appeal: "1. Bias shown by Williams DCJ throughout hearing of matter. 2. That his Honour failed to disqualify himself on the application of Augusto Piras. 3. His Honour erred in failing to apply the authorities relevant to the application of the reversal of plea. 4. The Appellant reserves his position to add to or amend the grounds of appeal in the event that Legal Aid is granted." 10 There was filed with that section 5F application an application for extension of time. That application is signed by the applicant and it states as follows the reasons why the section 5F application had not been lodged within the prescribed time: "I had Legal Aid granted to me for the matter in the District Court. I have had to make an application for the grant of Legal Aid for this appeal. As yet The Legal Aid commission has not made a decision." 11 An amended section 5F application was subsequently lodged. Its purpose was to amplify the notified grounds of appeal. That was effected by adding to the existing ground 3 the following additional grounds: "3a His Honour erred in finding that there was no evidence that suggested there is a real question about the guilt of the appellant. 3b His Honour's finding that the appellant did not have a valid reason to reverse his plea of guilty could not be reasonably arrived at on the evidence. 3c His Honour erred in making adverse findings of credit about the appellant by failing to take into account the evidence relevant to the credit of Mr. Price and Ms Leary. His Honour erred in failing to assess the credit of Mr. Price and Ms Leary. 3d His Honour erred in failing to apply Jones v Dunkel to draw an adverse inference from the failure of the Crown to call the Crown Prosecutor who appeared before Judge Goldring, Mr. Bill Carney. 3e His Honour erred in failing to find there had been a miscarriage of justice by reason of the incompetence of the appellant's counsel." 12 It will be convenient to deal in due course: first, with Ground 3 and its sub-grounds 3a through 3e; and secondly, Grounds 1 and 2. Before doing that, it is convenient to canvass some relevant matters of legal principle.