R v Nguyen [2013] NSWDC 340

District Court New South Wales

Medium Neutral Citation: R v Nguyen [2013] NSWDC 340 Decision date: 03 June 2013 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Leave granted to withdraw plea of guilty. Catchwords: CRIMINAL LAW – Procedure – pleas – withdrawal of guilty plea – drug offence – limited knowledge of English – issue of awareness of element of risk that goods were prohibited – early complaint to Probation and Parole Legislation Cited: Customs Act 1901 (Cth) Cases Cited: Maxwell v The Queen [1996] HCA 46; 184 CLR 501; 87 A Crim R 180 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; 155 A Crim R 37 Category: Procedural and other rulings Parties: Regina (Crown) Kim Giau Nguyen (Applicant) Representation: Counsel: MT Bateman (Applicant)

Solicitors: RJ Ferral-Smith, Office of the Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2012/152491

Judgment 1. Kim Giau NGUYEN pleaded guilty to an offence. She now wants me to set aside that plea of guilty. She was charged with an offence of importing a substance contrary to a provision of the Customs Act 1901 (Cth). On 12 March 2013 she pleaded guilty to that offence in court. At the time she was represented by a barrister and a solicitor. Her son was with her. 2. Ms Nguyen was born in Vietnam and has been in Australia since 1991. She speaks Vietnamese and, I accept, has limited understanding of English. She said in an affidavit which was put into evidence by her counsel, Ms M T Bateman, that she entered a plea of guilty "because the goods were in my possession and I was of the understanding that my sentence would be reduced if I entered a guilty plea". But she goes on to say that she "did not properly understand the nature of the charge" and she adds that specifically she "did not understand the element of the charge of 'being reckless'". She claims that the goods which were imported into Australia were indeed imported by her but she did not know that the importation of those goods was prohibited. She claims that she was not aware of any risk that she was importing prohibited goods. 3. Ms Bateman made her client available for cross-examination by Mr R J Ferral-Smith, the representative of the Commonwealth Director of Public Prosecutions who is prosecuting her. She acknowledged that she was being represented by a Vietnamese speaking solicitor who had experience in criminal matters. However when Mr Ferral-Smith wanted to seek some more specific information about her state of mind on the day that she entered her plea of guilty she claimed legal professional privilege in respect of some specific questions. This somewhat frustrated the process of finding out what the true position was at the time that she entered the plea of guilty. 4. The entry of a plea of guilty is a solemn step and it formally acknowledges the elements of an offence. But as Dawson J and McHugh J said in Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501; (1996) 87 A Crim R 180 at 511([20]), such a plea must "be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage." 5. In Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37, Howie J referred to the authorities on setting aside a plea and said at 41([16]) that they "show that the issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea of guilty to convict and sentence the defendant." His Honour went on to say at 42([19]) that "if there were any basis upon which the integrity of the plea is seriously called into question or any other reason that would make it unfair for the court to act upon the plea, there would inevitably be a miscarriage of justice by refusing to allow the defendant to withdraw the plea and defend the charge." 6. In addition, Howie J acknowledged that the Court of Criminal Appeal has in the past said that a judge should approach the task of setting aside a plea "with caution bordering on circumspection." His Honour said at 45([35]) that if the "advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all the elements of the offence notwithstanding the plaintiff's antecedents and his knowledge and familiarity with the criminal process." 7. Some of those factors are not present in this case so far as I am aware. Howie J contrasted that with a situation where the advice in question might have concerned whether or not the accused person should plead guilty perhaps to obtain some advantage. 8. As I said, the stated evidence leaves a good deal to be desired. Nevertheless, three things bother me about the entry of a plea. The first was that the plea was entered by an accused whose first language was not English. Indeed it seems that her knowledge of English was very limited. The primary person giving her the advice was a barrister and it seems that he did not speak Vietnamese. 9. The second concern that I have is that the issue concerns one of the elements of the offence. It appears that Ms Nguyen acknowledges that she imported the goods but there is an issue in her mind as to whether she was aware of a risk that they were prohibited goods, that risk being substantial. Mr Ferral-Smith says his client relies upon that mental element of the offence. The test of whether one is aware of a substantial risk that goods were prohibited raises some subtleties of understanding. One has to consider the actual state of awareness of the person, the level of the risk and whether that risk can be described as substantial. Without that component being satisfied, by definition there would not be an offence. Ms Nguyen was therefore in a position where she was pleading guilty, receiving advice from a non‑Vietnamese speaking legal advisor - albeit in the presence of two Vietnamese speaking persons, one being her son and the other her solicitor - in circumstances where she acknowledged importing the goods but had to grasp some advice about the subtlety of her state of mind at the time. 10. The third aspect which is not of concern but which reinforces Ms Nguyen's case, or strengthens it, is the fact that she saw the Probation and Parole Service two months after entering her plea. There is a pre-sentence report prepared by a community corrections officer in preparation for her anticipated sentencing. The pre-sentence report notes that upon "continual questioning by this service, Ms Nguyen maintained her stance that she had unknowingly imported a border controlled precursor into Australia". The report went on to say that she "agreed with the police facts, though she strongly denied wilfully importing a border controlled precursor into Australia." I do not have the police facts before me in evidence. 11. Mr Ferral-Smith correctly observes that this offence involves recklessness rather than knowledge or wilfulness but that illustrates somewhat my concern about the subtleties involved in describing the various states of mind. What seems to be clear is that about two months after entering her plea Ms Nguyen was making it clear to the Probation and Parole Service that she did not regard herself as guilty of the offence. 12. I am myself concerned that there is some risk, because of these factors, that the plea of guilty may have been entered accompanied by some degree of ignorance - either legal or linguistic - on Ms Nguyen's part. This in turn would affect the integrity of the plea. 13. For that reason I propose to grant the application and grant leave to Ms Nguyen to withdraw her plea. HIS HONOUR: Now what happens next, if anything? What orders if anything should I make? FERRAL-SMITH: I think your Honour my friend and I agree that perhaps the best thing is for the matter to be restored to the short matters list for the purposes of obtaining a trial date. HIS HONOUR: What order do I make to do that? DISCUSSION AS TO SUITABLE DATE HIS HONOUR: I stand the matter over to the short matters list before the Chief Judge or whoever is sitting in that list on Friday 14 June 2013 for the allocation of a hearing date for a trial. Does that sound right that I've made the right procedural order to get it where it should be-- FERRAL-SMITH: I believe so your Honour. HIS HONOUR: --in a couple of weeks time. The papers can go on the file, and bail is continued. Is Ms Nguyen on bail? FERRAL-SMITH: Yes. BATEMAN: She is. Just to continue. HIS HONOUR: The same conditions? FERRAL-SMITH: Thank you. 1. Bail is continued on the same conditions as presently affixed until Friday 14 June 2013. HIS HONOUR: Is that right? FERRAL-SMITH: Yes thank you your Honour. HIS HONOUR: So she'll need to turn up on that day to have her bail continued. Thank you both very much for your assistance. Something else you're thinking of Ms Bateman? BATEMAN: Just as to - I thought when your Honour made the order for the setting down of the hearing date, it probably is to go there for arraignment. HIS HONOUR: Thank you. The purpose of it being listed on 14 June - I think you're right - should be for the accused to be arraigned. You're right. Anything else? No, no.