New South Wales Court of Criminal Appeal CITATION: Regina v Abbruzzese [2006] NSWCCA 207 HEARING DATE(S): 15 June 2006 JUDGMENT DATE: 6 July 2006 JUDGMENT OF: Grove J at 1; Hidden J at 45; Kirby J at 46 DECISION: APPEAL ALLOWED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY APPEAL BY CROWN - OFFENDER INDICATES INTENTION TO TRAVERSE PLEA OF GUILTY TO SENTENCING JUDGE - LEAVE TO WITHDRAW PLEA OF GUILTY - ORDER MADE IN ABSENCE OF EVIDENCE - CROWN ENTITLEMENT TO PROCEDURAL REGULARITY LEGISLATION CITED: Criminal Procedure Act 1986 CASES CITED: R v Van [2002] NSWCCA 148 PARTIES: Regina v Phillip Abbruzzese FILE NUMBER(S): CCA 2006/994 COUNSEL: W. Abraham QC with L. Crowley (Crown/Appellant) A. Haesler SC (Respondent) SOLICITORS: Commonwealth DPP (Crown/Appellant) S. O'Connor (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/10390 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 13 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION: not reported IN THE COURT OF CRIMINAL APPEAL 2006/994 GROVE J HIDDEN J KIRBY J 6 July 2006 REGINA v PHILLIP ABBRUZZESE Judgment 1 GROVE J: This is an appeal, the notice in respect of which is signed on behalf of the Director of Public Prosecutions challenging "judgment or order" in these terms: "His Honour Judge Freeman's failure to exercise jurisdiction to determine the application of Phillip Abbruzzese (aka Filipo Spano) ('the defendant') for leave to withdraw his plea of guilty according to law; and His Honour Judge Freeman's decision to enter a plea of not guilty on the defendant's behalf." 2 The orders sought are: "1. An order that the plea of not guilty entered by his Honour Judge Freeman on 13 April 2006 on the defendant's behalf be quashed; 2. An order that the defendant's application for leave to withdraw his plea of guilty be refused; or in the alternative, 3. An order that the matter be remitted to the District Court to be heard according to law and conformably with the judgment of this Honourable Court." 3 To identify the essential issues in the appeal it is necessary to chronicle the proceedings against the respondent. 4 It is alleged that between about May 1997 and December 2002 the respondent was in receipt of Centrelink payments to which he was not entitled for various reasons including his failure to declare his marriage, his and his wife's income, his employment and receipt of worker's compensation payments and rental income. 5 On 31 March 2004 the respondent appeared in the Downing Centre Local Court on charges of making a false representation in order to obtain a Commonwealth benefit and obtaining financial advantage by deception. He was represented by counsel. He pleaded guilty and was committed to the District Court for sentence. 6 On 16 April 2004 the respondent appeared before Blanch CJDC when the proceedings were adjourned and subsequently further adjourned with appearances on 11 June 2004 (Tupman DCJ), 4 July 2004 (Blanch CJDC) and 26 August 2004 (Graham DCJ). 7 On these occasions the respondent continued to be represented by the same lawyers. 8 On 13 September 2004 the solicitors for the respondent filed a notice of ceasing to act. 9 On 28 October 2004 the respondent appeared before O'Reilly DCJ represented by a new solicitor who advised the Court that the instructions received from the respondent were inconsistent with the pleas (of guilty) and his Honour gave the solicitor leave to withdraw and adjourned the proceedings for mention on 19 November 2004. 10 On that date the respondent appeared again before Blanch CJDC; a solicitor for the Legal Aid Commission mentioned the matter on behalf of yet another solicitor (the third solicitor) acting for the respondent. On 17 December 2004 the respondent represented by the third solicitor appeared before Blanch CJDC and the matter was adjourned to 21 January 2005 for mention for the purpose of fixing a sentence date. At that mention a date was fixed for 31 March 2005. 11 This Court does not have the relevant transcript or documentation but there was no challenge to that part of the affidavit of Ms Firth as deposed that the respondent subsequently (that is after 21 January) reversed his pleas and on 4 February 2005 Blanch CJDC, having listed the matter for mention, fixed a trial scheduled to commence on 18 July 2005. There was at that time an estimate of five weeks likely trial duration, although this has since been reduced. 12 In May 2005, upon motion having been filed, the scheduled trial date was varied to 25 July 2005. 13 On 20 July 2005 the Director of Public Prosecutions received a letter from the third solicitor stating that the respondent would be entering pleas of guilty. On 25 July and 27 July the respondent appeared before Berman DCJ represented by counsel instructed by the third solicitor. On 30 September 2005 a sentence hearing commenced before Puckeridge DCJ and counsel who had appeared since 20 July 2005 sought an adjournment to enable the respondent to be psychiatrically examined. Counsel for the prosecution tendered some documentation and his Honour adjourned the sentence hearing, part heard, to 4 November 2005. 14 The transcript of that day made available to this Court commences with a statement by counsel: "Your Honour I thank you for that time, in fact my client was signalling that he wished to communicate with your Honour, not with me. The situation that I and my instructing solicitor find ourselves in hasn't changed and that is that if my client is called to give evidence in these proceedings he will confirm what was said in the psychiatrist's report which will amount to traversing the plea and isn't consistent with the instructions I had at the time that this plea was entered. It makes it impossible for me to continue with his representation your Honour. I won't be in a position to adequately represent him". 15 Thereafter, by leave, counsel withdrew. 16 I interpolate that the psychiatric report was not tendered and this Court is unaware of its content except to the extent of statements about it, the exchange between his Honour and counsel and subsequent mention of it in exchanges between his Honour and the respondent who, from that point, on that day, appeared unrepresented. 17 Inter alia, the respondent told his Honour that he had done nothing wrong but had pleaded guilty because his lawyers had told him that they couldn't represent him otherwise. That paraphrase is extracted from a transcript of exchange during which it is fair to observe some things said by the respondent would in fact have been consistent with pleas of guilty. 18 However, in the light of these matters, Puckeridge DCJ addressed the Crown Prosecutor: "HIS HONOUR: …….. Well Mr Crown in the matter of Abbruzzese I couldn't accept the plea of guilty on what's being stated. CROWN PROSECUTOR: No your Honour it would not be appropriate to do so on the basis of what Mr Abbruzzese and (counsel) had told the court". 19 Nevertheless the Crown Prosecutor pointed out that it "might be the case" that the Court should ascertain whether the pleas (of guilty) should be withdrawn. 20 His Honour continued: "…….so it's Mr Abbruzzese in person, advise that court cannot in circumstances accept the plea of guilty. Would that be appropriate in the circumstances rather than withdrawn? CROWN PROSECUTOR: Yes your Honour, that's precisely how it is". 21 Following further exchange the Crown Prosecutor having noted his Honour's stated intention to stand the matter over to 30 November, explicitly stated the Crown's position: "……that for a formal withdrawal of the plea would require that to be done by motion and for the court to determine whether in fact the plea ought to be withdrawn in the circumstances of the case….." 22 Puckeridge DCJ finally addressed the respondent in these terms: "HIS HONOUR: You've made a plea of guilty, I said that the court, this court can't accept your plea, you understand that? ACCUSED: Yes. HIS HONOUR: So if you're going to withdraw the plea, I haven't said formally that the plea is withdrawn. ACCUSED: Yes. HIS HONOUR: All I've said is that the court cannot accept your plea. ACCUSED: Yes. HIS HONOUR: But if you're going to withdraw the plea and make it one of not guilty you'll have to make an application, that's all, that's all the Crown is saying. ACCUSED: Thank you. HIS HONOUR : Very well, now you understand the position. ACCUSED Yes". 23 On 30 November 2005 a solicitor from the Legal Aid Commission appeared and the proceedings were adjourned to 21 February 2006. On 1 February 2006 the Director of Public Prosecutions received a letter from the Legal Aid Commission stating that it was no longer instructed by the respondent. 24 On 21 February 2006 the respondent appeared and advised the Court that he was instructing another solicitor (the fourth solicitor). On 6 March 2006 the fourth solicitor wrote to the Director of Public Prosecutions advising that, for reasons set out in the letter, he was not instructed by the respondent. 25 It appears that the proceedings were further adjourned and on 13 April 2006 the respondent appeared before Freeman DCJ. As noted at the commencement of this judgment, this appeal is focussed upon what occurred at this hearing. 26 One further matter should be added to the chronology. The appeal book contains a copy of an undated but apparently signed indictment, the back of which is unendorsed. The transcript supplied relates to the hearing before Puckeridge DCJ on 4 November 2005 and Freeman DCJ on 13 April 2006, on neither of which occasions the respondent, according to the transcript, appeared to have been arraigned on the indictment. However, the fact that the respondent was arraigned was mentioned in written submissions on behalf of the respondent and orally by senior counsel for the prosecution at the hearing in this Court, and I have taken it to be common ground that such an arraignment did take place at some point prior to 13 April 2006. 27 The context in which the respondent's submission referred to this matter was a statement "it may be argued that the subsequent arraignment of the accused meant that s 106 no longer applies, however reliance is placed on the clear words of the section". 28 Section 106 of the Criminal Procedure Act 1986 provides: "106(1) If an accused person brought before the District Court or the Supreme Court under this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence. (2) On the direction being given, the accused person is taken to have been committed for trial for the offence. The Judge may make the same orders and do the same things (including dealing with the accused person) as a Magistrate can on committing an accused person for trial. (3) The Judge may give directions as to matters preliminary to the trial as the Judge thinks just. (4) A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 104. (5) Despite subsection (1), the Judge may make an order under section 104 instead of giving a direction under subsection (1), if of the opinion that such an order should be made". 29 It is plain that, except in cases to which subsection (4) applies or discretion is exercised pursuant to subsection (5), the provision is directed towards avoidance of unnecessary return from the District Court or Supreme Court to the Local Court for the purpose of a committal hearing. Had the respondent pleaded not guilty when appearing before the District Court for sentence in respect of the committal by the Local Court, it would have in terms of the provision, been mandatory for the presiding judge to direct that the respondent be put on trial. Blanch CJDC had, as mentioned, earlier done so but events moved on as I have recounted. 30 The appeal before this Court proceeded on the basis that the challenges to what occurred before Freeman DCJ on 13 April 2006 were in respect of pleas of guilty which had been made upon arraignment on indictment. In that circumstance, s 106 has no part to play. 31 I turn then to the hearing before Freeman DCJ. The respondent again appeared in person. Not all that was said by the respondent to his Honour was consistent but he continued with his general assertions that he was not guilty and that lawyers had told him that if he persisted with an intention to say things which appeared in the psychiatric report they could not represent him. 32 It was acknowledged by all counsel and it is a view that I would respectfully share, that Freeman DCJ was placed in a very difficult situation. On what he was being told (insofar as the respondent adverted to possibly relevant matters) it was likely that, if the sentencing hearing were resumed, the respondent would traverse his pleas with the result that the presiding judge would remand him for trial. Of course, his Honour was conscious that that was something which would occur in the future. In the present tense what was before the Court was in effect, a motion ore tenus by the respondent for leave to withdraw his pleas of guilty. 33 As the transcript above extracted shows, Puckeridge DCJ had told the respondent that he had to make an application to withdraw his pleas. Before Freeman DCJ the Crown Prosecutor expressly articulated the Crown stance that to bring "some sort of order" to the proceedings a formal application for leave to withdraw the plea was required. It was further explicitly stated that the Crown position was that the respondent bore an onus of persuading the Court that the pleas of guilty had not been properly entered. That statement correctly reflected the law. 34 In order, as was stated at one stage, to get off the "merry-go-round" his Honour said: "Mr Crown what I propose to say is that it is impossible in the circumstances with Mr Abbruzzese unrepresented to conduct the sort of inquiry which would generate an answer, a proper answer, to the question of whether leave to withdraw his plea ought to be granted or not. There just isn't in the circumstances any way around that because he can't call the evidence and I can't act on that application without evidence. His Honour Judge Puckeridge having refused to accept the plea, that's where the situation lies. I will enter a plea of not guilty on the accused behalf, the plea to the contrary having previously been rejected and I'll stand the matter over for mention in two weeks time to fix a trial date". 35 As the foregoing recounting shows, Puckeridge DCJ did say on occasions that he refused to accept the respondent's plea. These statements were anticipatory in the sense that they were based upon statements by the respondent that he was going to traverse the pleas in terms similar to something recorded in the psychiatric report but the stage of actually traversing them was never reached. The situation moved, as it were, to requiring the respondent to make an application for leave to withdraw his pleas of guilty. 36 Although Freeman DCJ had adequate power to hear an application to withdraw the pleas without the filing of a formal motion, the Crown complaint is that he could not treat what was said, neither affirmed nor sworn, by the respondent, as evidence. Not only was there an absence of consent to his Honour so doing, the Crown had expressly sought that application to withdraw the pleas be brought on a regular basis. 37 A person who has pleaded guilty upon arraignment has not the right to withdraw the plea simply by election so to do. In effect, cause for an order so permitting must be shown and the types of situations in which such an application to withdraw pleas might be granted ranging from non appreciation of the nature of the charge to improper pressure by counsel were conveniently tabulated in the judgment in R v Van [2002] NSWCCA 148. There is no present need to recite that detail. 38 Thus, the Crown was deprived of the opportunity of challenging the validity of assertions by the respondent and testing whether he could demonstrate whether, upon proper application of principle, he had an entitlement to withdraw his pleas. 39 In the passage above cited it is noted that Freeman DCJ stated that he could not "act on that application (to withdraw the pleas) without evidence". His order that the matter be stood over for fixing a trial date was apparently based on an understanding that Puckeridge DCJ had rejected the plea but the basis for him so doing, namely that the respondent had in fact traversed his pleas rather than indicating an intention so to do, had not arisen. Although it may be commented that there was some confusion between the situation of rejection of the plea and application for leave to withdraw the pleas, there is an implied confirmation that Puckeridge DCJ did not regard himself as having so done, in that he told the respondent that he was required to "make an application". 40 It was submitted on behalf of the respondent that both judges were of the view that they could not accept the pleas and that the "only rational course" was to grant leave to withdraw them and that this did not require evidence. 41 As the respondent carries an onus of showing why he should have leave to withdraw pleas of guilty, there is an inevitable requirement that there be evidence and I would reject the submission to the contrary. The respondent had not, at any stage in fact traversed his pleas but merely stated that it was his intention so to do. Such a statement of intention does not suffice to authorize rejection of the plea of guilty. 42 I repeat my appreciation of the difficulty faced by Freeman DCJ and the practical approach which he sought to bring to bear on a situation which, on appearance to say the very least, was derived from somewhat intransigent behaviour by the respondent. However, I would uphold the Crown argument that there has not been a lawful determination in respect of the maintenance or withdrawal of the respondent's pleas of guilty. The Crown is entitled to have such an application determined on the merits of evidence presented. 43 I would uphold the Crown appeal and quash the orders for entry of pleas of not guilty on behalf of the respondent and ancillary orders together with the directions in respect of fixing a trial date made by Freeman DCJ on 13 April 2006. 44 I would order that the matter be remitted to the District Court to be dealt with according to law. 45 HIDDEN J: I agree with Grove J. 46 KIRBY J: I agree with Grove J. ********** 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.