District Court New South Wales Medium Neutral Citation: Schneider v R [2014] NSWDC 131 Hearing dates: 10 March 2014 Decision date: 10 March 2014 Before: Berman SC DCJ Decision: Application to withdraw pleas of guilty is allowed - The convictions are quashed - The matters are remitted to the Local Court Catchwords: CRIMINAL LAW - Judgment - Application to withdraw pleas of guilty - Selling alcohol not in terms of licence - Not fully advised by legal representative Category: Principal judgment Parties: Christopher David Schneider The Crown Representation: Counsel: Mr A Scotting - Applicant Solicitors: Yardley Legal Pty Ltd - Applicant Office of Liquor, Gaming and Racing - Respondent File Number(s): 2013/246740 Judgment 1HIS HONOUR: On Anzac day last year two inspectors went into licensed premises in Byron Bay. They were acting under cover. They ordered alcohol and drank it and then left. The following day they went back and did something similar. It was alleged against Mr Schneider, being the licensee of the establishment, that he had committed two offences by selling alcohol not in terms of his licence. The two inspectors did not order a meal or consume a meal nor were they residential guests of the establishment. 2The matter could have been dealt with by way of a penalty notice but a solicitor acting on behalf of Mr Schneider made an election that the matter proceed to a hearing in the Local Court. In the Local Court pleas of guilty were entered and ultimately Mr Schneider was fined having two convictions recorded against him. The matter has now come before me because Mr Schneider seeks leave to withdraw his plea of guilty and have the matter remitted to the Local Court for entry of a not guilty plea and a determination of his guilt. 3The principles governing the circumspection by which judicial officers who treat applications of this kind are well known. There is a considerable interest in finality of legal proceedings, including criminal proceedings, even if, as is suggested in this case, the pleas of guilty were entered in the hope of a favourable outcome. The fact that there is an unfavourable outcome does not entitle someone to go back and try an alternative approach. 4In this case it is known that Mr Schneider was an applicant for a different form of liquor license one which would have enabled him to sell more alcohol. Mr Schneider had some trouble accepting that in the witness box today, suggesting he might sell less food but I had little trouble finding that one of the reasons which motivated the application for the new licence was so that more money could be made. 5It has been suggested that because of that further application the pleas of guilty were entered as part of a conciliatory approach with the expectation being that s 10's would be imposed, in particular because of Mr Schneider's absence of previous convictions. 6Mr Hearnden suggests that the decision to enter pleas of guilty was a deliberate decision in an attempt to get s 10's and disappointment that that was not the outcome does not justify Mr Schneider getting an opportunity to present a completely different case in the Local Court. 7I however have grave doubts, indeed sufficient doubts such that I will allow these applications, that Mr Schneider ever understood precisely what was happening. He gave evidence in court today that he did not even understand what a s 10 was. No other material in evidence would contradict him. There is nothing to suggest that the somewhat strange concepts of a matter being found proved but no conviction recorded was ever explained to him, nor, and this is perhaps the most important feature of the evidence, does it appear that the solicitors then appearing for Mr Schneider ever explained to him the elements of the offences to which he was pleading guilty. Indeed there is evidence to suggest that immediately before the sentencing hearing Mr Schneider was indicating that he believed he was not guilty to at least one of the offences. 8Evidence from the solicitor was put before me today by way of affidavit. It is brief, there is no suggestion that any issues of legal professional privilege have prevented him from providing evidence as to what advice he gave his client before those pleas of guilty were entered, so in those circumstances the absence of any evidence regarding discussions between Mr Schneider and Mr Maxwell is noteworthy. The position clearly is that Mr Schneider was, at least as far as one of the charges is concerned, suggesting that he had not breached the terms of his licence, yet this was apparently ignored by Mr Maxwell, who does not appear to have engaged in any consideration of any defence to the second charge. Mitigating features were not even presented to the Local Court on sentence. 9Of course everything I have said about Mr Maxwell's conduct has to be considered on this basis, Mr Maxwell does not appear before me and so any criticisms I appear to have made of him have to be looked at in that light, but with that qualification on the evidence before me I am not satisfied that he ever obtained proper instructions from Mr Schneider such that Mr Schneider's pleas of guilty were genuine acknowledgements of his guilt to these two offences. 10I repeat something I said earlier. Even those professing their innocence are entitled to plead guilty and when they get an outcome they do not like it is not always the case that they will be allowed to withdraw those pleas of guilty. But one matter that I must consider in determining whether a miscarriage of justice has occurred such that the application to withdraw the pleas of guilty should be granted is a consideration as to whether any instructions given by Mr Schneider to Mr Maxwell and any advice given by Mr Maxwell to Mr Schneider meant that the pleas of guilty were genuine acknowledgements of Mr Schneider's guilt. I do not think they were. I think they were simply Mr Schneider accepting Mr Maxwell's advice without that advice including consideration of exactly what it was that Mr Schneider was admitting to. 11In those circumstances I am not satisfied that it is in the interests of justice that Mr Schneider, in effect, be bound by his pleas of guilty. There are, it seems, real issues to be determined in this matter. Of course it would have been better if they were determined in the Local Court but from what I can see Mr Schneider was alerting Mr Maxwell to those issues. One issue which will arise in relation to the first matter is whether alcohol was served under an honest and reasonable mistake of fact that the two inspectors were either ordering alcohol as part of a meal or were guests of the hotel. I am told that there is CCTV footage showing a number of patrons of the establishment being served food and eating it, which is in contrast to the statement of facts prepared by the prosecutor and tendered in the Local Court. 12The flavour of the statement of facts in the Local Court suggests, and indeed this is the description used in the facts, that the place operated as a pub rather than a restaurant, if that were the case then the defence of honest and reasonable mistake of fact that the barmen thought the inspectors were going to consume food would be unlikely to succeed. But if ordering and eating food was common place that evening such a defence is much more likely to succeed. As far as the second matter is concerned I understand that there is a real issue, at least in terms of the law as to whether a guest of a guest would be entitled to be served alcohol without a meal. These issues appear not to have been addressed by Mr Maxwell and led to Mr Schneider entering pleas of guilty in circumstances where, had he been given proper advice, it is likely that he would not have entered those pleas. 13Mr Hearnden made much of the suggestion that the pleas were entered as part of a conciliatory approach to get the extended licence. There is a lot in what he says as to why such an attitude might have been taken, but if that attitude flowed from inadequate consideration as to whether Mr Schneider was guilty in the first place then I do not consider that it is in the interests of justice that Mr Schneider be denied the opportunity to argue that he was not guilty of these offences. 14The application to withdraw the pleas of guilty is allowed and the matter will be remitted to the Local Court for further hearing. 15I remit the matter to the Local Court at Ballina on a date to be fixed. In the event that there needs to be any further order to achieve the matter going back to the Local Court the parties can approach me and I'll make the further order. 16In accordance with the order I've made I'll quash the convictions. ********** 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. Decision last updated: 19 August 2014