Citation: Regina v Brehoi [1999] NSWCCA 113
Court: Court of Criminal Appeal, New South Wales
Date: 11 May 1999
Judge(s): Barr J, Greg James J, Smart AJ
Background
The appellant pleaded guilty in the District Court in June 1995 to one count of supplying a commercial quantity of heroin and four counts of supplying heroin across three indictments. He was represented by a solicitor at the time of his pleas and at sentencing, and the trial judge expressly confirmed that he understood what he was doing. He was sentenced to an effective total of six and a half years imprisonment, with a minimum term of four years commencing December 1993.
Prior to entering his pleas, the appellant had contested the admissibility of an electronically recorded interview (ERISP) on a voir dire, arguing that admissions in the interview were obtained through alleged police assault. The trial judge ruled the ERISP admissible, and it was following that ruling that the appellant entered his guilty pleas. He had earlier appealed against his sentence in the Court of Criminal Appeal, but that appeal was refused in December 1996.
The appellant then sought an extension of time to appeal against his conviction, filing the application almost four years after the relevant events. He argued, among other things, that civil proceedings connected to the matter had only concluded in March 1998, and that a finding in his favour by the Victims Compensation Tribunal supported his challenge to the voir dire ruling.
Legal Issues
- Whether an extension of time should be granted under section 10 of the Criminal Appeal Act 1912 to permit a conviction appeal lodged nearly four years out of time
- Whether the appellant had established a sufficiently arguable case to justify that extension, including whether the guilty plea's integrity had been undermined by any error on the voir dire
- Whether the Victims Compensation Tribunal findings provided any relevant basis to challenge the admissibility ruling or the validity of the guilty pleas
Decision
Greg James J, with whom Barr J and Smart AJ agreed, refused the application. The court applied the principles from Regina v Unger (1977) 2 NSWLR 990, which recognise the importance of the finality of decisions in determining whether an extension of time should be granted. The court also drew on Regina v Davies (CCA, unreported, 16 December 1993) for the applicable test when a convicted person seeks to challenge a guilty plea, which requires demonstrating that the plea did not reflect a genuine consciousness of guilt or that there was a real and arguable question of guilt to be tried.
The appellant had not suggested that any legal error by the trial judge had overbome his will so as to vitiate the plea. Nor had he shown that the plea was other than a genuine acknowledgment of guilt, or that an issuable question of guilt existed. The court noted that the burden of establishing the integrity of the plea lay on the appellant, and that burden becomes harder to discharge the longer a known matter is allowed to lie without action.
On the Victims Compensation Tribunal point, the court found that the Tribunal had accepted that the appellant suffered injuries but made no finding that those injuries were inflicted by police. That finding therefore had nothing in common with the issues determined on the voir dire, and provided no basis for any challenge to admissibility whether at common law, in discretion, or under section 410 of the Crimes Act 1900.
The court also found the explanation for the delay inadequate. The appellant had received legal advice at the time of his pleas and legal assistance on the sentence appeal. The sentence appeal had expressly addressed matters overlapping with those now raised. No satisfactory account was given for failing to prosecute any conviction appeal in the intervening period.
Orders Made
- The application for an extension of time within which to appeal against conviction was refused.
Key Takeaways
- An extension of time to bring a conviction appeal will not be granted without a sufficiently arguable case, and the court will consider the finality of decisions as a significant countervailing principle.
- Where a conviction follows a guilty plea, the appellant bears the onus of establishing that the plea did not reflect a genuine consciousness of guilt, or that a real question of guilt existed to be tried, as confirmed by the Davies test applied here.
- A finding by the Victims Compensation Tribunal that an applicant suffered injuries does not, without more, establish that those injuries were caused by police conduct, and will not automatically translate into a ground for challenging admissibility rulings made in criminal proceedings.
- The length and adequacy of any explanation for delay are material considerations. In this case, the court found the four-year delay wholly unexplained given that the appellant had legal representation and the overlapping matters had been addressed in earlier proceedings.
- Refusing the extension, the Court of Criminal Appeal confirmed that the burden of impugning a guilty plea grows heavier the longer the applicant allows known grounds to remain unpursued.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 10
- Crimes Act 1900 (NSW), s 410
Cases
- Regina v Davies (Court of Criminal Appeal, unreported, 16 December 1993)
- Regina v Unger (1977) 2 NSWLR 990
- Regina v Liberti (1991) 55 A Crim R 120