R v Shipsey [2018] NSWLC 4

Local Court New South Wales

Medium Neutral Citation: R v Shipsey [2018] NSWLC 4 Hearing dates: 24 April 2018 Decision date: 24 April 2018 Jurisdiction: Criminal Before: Magistrate P Stewart Decision: Leave to dispute agreed facts is refused. Catchwords: CRIMINAL LAW – Procedure – Leave to dispute agreed facts – plea bargain - Evidence Act not applicable – offender bound by conduct of counsel – offender aware of factual issues for years – disputed facts not raised in timely manner – interests of justice – procedural fairness – desirability for finality of proceedings– evidence not given by defendant – difficulty in assessing untested assertions – onus of proof on party seeking leave – leave refused Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 194, 207 Drug Misuse and Trafficking Act 1985 (NSW) s.25(1) Evidence Act 1995 (NSW) ss 4, 191, 192 Cases Cited: CL v R [2014] NSWCCA 196 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152 R v Palu (2002) 134 A Crim R 174 Wong v DPP [2005] NSWSC 129 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (prosecution) Alistair Shipsey (defendant) Representation: Counsel: A Hawkins, for the defendant

Solicitors: J Sweeny, for the prosecution L Johnson, for the defendant File Number(s): 2010/315748 Publication restriction: Nil

EX TEMPORE Judgment – Leave to Dispute Agreed Facts 1. Alistair Shipsey is charged that on 19 October 2014 he supplied the prohibited drug cannabis, being an indictable quantity, approximately 4.5 kilograms, contrary to section 25(1) Drug (Misuse and Trafficking) Ac 1985 (NSW)t. He is further charged that on 25 March 2015 he supplied cannabis, being an indictable quantity, approximately 4.983 kilograms. 2. The matter was set down for hearing on 15 February 2018. On that day, the offender pleaded guilty to Count 1 and admitted his guilt to Count 2, asking the Court to take that matter into account on a Form 1. The matters were stood over for sentence to 13 April 2018 on the application of Ms Kyriakos of counsel appearing for Mr Shipsey, so that a medical report and psychological report could be prepared. Mr Shipsey's lawyer, Ms Leigh Johnson was apparently ill on that day, and though it was indicated that she was on her way to court, she ultimately did not attend. Two section 9 bonds of 3 years imposed for the offences of Possess Prohibited Weapon were called up. 3. On 20 February 2017, Ms Johnson made application to traverse the guilty plea per section 207 of the Criminal Procedure Act 1986 (NSW) citing a ground that "the ERISP was never served and the matter should have adjourned to allow the defendant and the defence time to consider the implications." There was no application made for an adjournment on the day of hearing due to an ERISP not being served. 4. Actions such as lodging an application to traverse a plea can only be done on instructions. There was nothing mentioned in the traversal of plea application that the facts were now in dispute. 5. On 13 April 2018, Ms Hawkins of counsel appeared for the offender, instructed by Ms Johnson. It was indicated that Mr Shipsey was prepared to maintain pleas of guilty and advance the matters by way of a disputed facts hearing – the dispute was said to relate to the weight of the drugs. It was submitted that from the defence perspective, the weight was substantially less than as set out in the facts. It was conceded that Count 2 could no longer be dealt with on a Form 1 if the matters went to disputed facts hearing. 6. On that basis, it was clear that the traversal of plea application could not be maintained. It was dismissed. A person cannot indicate a willingness to maintain the pleas of guilty and maintain a traversal of plea application. 7. I indicated to both the DPP and Ms Hawkins that I was of the view that the facts tendered on 15 February 2018 were agreed facts. To confirm that, the court audio recording of 15 February was replayed in Court. The matter had been stood down since 9.30am – a period of 4 hours and 40 minutes - for the parties to hold further discussions with a view to it becoming a short matter i.e. in other words, negotiations for the matters to potentially proceed by way of a guilty plea. 8. At 2.10pm, the following occurred: Ms Kyriakos: I am now instructed to plead guilty to sequence 1 and the Form 1 is yet to be signed. It is to be slightly amended. Ms Sweeney DPP: In light of that, I hand up a set of agreed facts and Mr Shipsey's criminal antecedents. Ms Kyriakos: If your Honour would pardon my back to have the Form 1 signed. Ms Sweeney DPP: I hand up the Form 1. That is the Crown material on sentence. Ms Kyriakos: I ask that the matter go over for some time… 1. Having confirmed that the facts were tendered on the basis of agreed facts, and there being no demurrer by defence counsel, it seemed to me that the parties were bound by that process and that the matter should proceed to sentence. I note counsel today concurs they were agreed facts. 2. However, given that neither party was able to assist at that time with any law to the contrary, the matter was adjourned to 24 April 2018 so that parties could make submissions as to the state of the law, and whether a disputed facts hearing could take place in the circumstances that had arisen, or whether the matter should proceed to sentence on the basis of the agreement in place on 15 February 2018. 3. Subsequently, I was able to consider the matter further. The Evidence Act 1995 (NSW) has no application. Per section 4 of that Act: Courts and Proceedings to which Act applies (1) This Act applies to all proceedings in a NSW court, including proceedings that: (a)… (b)… (c)… (d) subject to subsection (2), relate to sentencing (2) If such a proceeding relates to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters – the direction has effect accordingly. 1. No direction had been given in accordance with subsection (2). The provisions under sections 191 and 192 regarding agreed facts and leave do not apply. 2. In Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152, Biscoe J dealt with an application during a sentencing hearing for leave to contradict or qualify previously agreed facts (at [12]-[19]) : "The Evidence Act does not apply because in a sentencing proceeding the Evidence Act only applies if the court directs that the law of evidence applies in the proceedings and no such direction has been sought or made: s 4(2). However, it is common ground that the defendant requires leave to contradict or qualify the agreed facts, and I think that the matters listed in s 192(2) should be taken into account. As to the exercise of discretion, counsel were unable to find a case directly in point and suggested analogies… [those analogies related to applications to traverse a guilty plea]. Because of the high cogency of a guilty plea, I do not think that the approach to an application for leave to contradict or qualify an agreed fact, at least where a matter of expert evidence may be involved, requires the same degree of caution as an application to withdraw a guilty plea… [I do not understand the present application to involve expert evidence]. The onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts. An application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed. The fact that there was a careful process whereby the statement of agreed facts was negotiated and ultimately agreed and signed by the parties' lawyers tends to weigh against giving leave… [There is no legal requirement in the present case for the facts to have been signed] Another factor weighing against giving leave is the very late stage of the leave application." 1. Difficulties frequently arise following a plea of guilty brought about in the course of or as a result of plea negotiations. Howie J in R v Palu (2002) 134 A Crim R 174 said (at [21]: "It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged". 1. In CL v R [2014] NSWCCA 196, Adamson J stated, with Hoeben CJ at CL and Fullerton J agreeing (at [43]-[44]): "The facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54; 199 CLR 270; Weininger v The Queen [2003] HCA 14; 212 CLR 629; Gas v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 at [30]. The Agreed Facts were tendered by consent on the basis that they were agreed. As such they constituted the basis on which the applicant was to be sentenced. The sentencing judge was both entitled, and obliged, to sentence on the basis of the Agreed Facts. The applicant was bound by the conduct of his counsel at the sentence hearing. Mr James indicated that the applicant consented to the tender of the Agreed Facts. An agreement as to the facts is part of the acceptance of a plea of guilty. There is no discernible basis on which the Agreed Facts ought not to have been accepted by the sentencing judge, or on which their correctness ought to be revisited on this application." 1. The difference between an application to traverse a plea of guilty and an application to traverse the facts is that the former relates the essential elements of the offence, and the latter is concerned with the particulars. 2. The history of the proceedings sheds light on how long the particulars of the matter have been available to the defence, so as to enable consideration as to how the matter would proceed. 3. The charges were first at court on 28 October 2015. The defendant was present and represented by Ms Johnson – an experienced criminal defence lawyer. Ms Johnson has continued to represent the defendant over the next 2 years and almost 6 months. Chronology of Proceedings Date Lawyer Def't present Reason for adjournment 28.10.2015 Johnson yes Brief service and consider election 2.12.2015 Johnson yes Negotiations and Legal Aid application 3.2.2016 Johnson yes Query if DPP is electing; outstanding Legal Aid application 30.3.2016 Johnson yes Brief served (partial). Balance of brief orders 8.6.2016 Johnson yes Outstanding police, DVD screening 10.8.2016 Johnson excused No info available re outstanding items 21.9.2016 Aziz yes Reply and negotiations 9.11.2016 Agent yes Reply/plea offers 14.12.2016 Johnson yes Negotiations or timetables 22.2.2017 Johnson yes Committal 22.3.2017 Johnson yes Committal/finalise facts 5.4.2017 Johnson yes Committal. Outstanding DPP response, 1 week only needed 12.4.2017 Johnson yes Full brief served, summary hearing, hearing 4 hours 1 x 1 7.8.2017 Johnson no Hearing vacated. Defendant in operating theatre. 17.10.17 hg 29.9.2017 no no (in chambers) hearing 17.10.17 vacated. To fix new date 25.10.2017 Johnson yes Hearing 1 day 15.2.2017 15.2.2018 Kyriakos counsel yes For sentence. Call up section 9 Bonds. Def't to obtain reports