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Court of Criminal Appeal 26 July 1999

Regina v Iral

[1999] NSWCCA 368

Public order & justice offences
FAILURE TO APPRECIATE NATURE OF CHARGE WITHDRAWL OF PLEA CONFLICT OF INTEREST BY INTERPRETER

Citation: Regina v Iral [1999] NSWCCA 368
Court: NSW Court of Criminal Appeal
Date: 26 July 1999
Judge(s): Meagher JA, Simpson J, Sperling J

Background

The appellant was charged with a criminal offence and, at committal, entered a plea of not guilty. When the matter came on for trial in the District Court on 1 September 1998, he entered a plea of guilty and the matter was adjourned for sentencing. He had been legally represented throughout by a solicitor, Mr Hovan, and an employee of that firm appeared with him on the day the guilty plea was entered.

On 22 September 1998, the appellant applied to Kirkham DCJ to withdraw his guilty plea. The application was supported by affidavit and oral evidence from Mr Hovan. The primary judge refused the application, concluding that the plea had been entered knowingly and intentionally, and that the appellant had been informed of the elements of the offence the previous month.

The appellant sought leave to appeal that refusal to the Court of Criminal Appeal. His application raised serious questions about whether he had ever genuinely understood the nature of the charge, whether proper instructions had been obtained from him, and whether his solicitor's evidence was compromised by a conflict of interest.

  • Whether the appellant understood the nature of the charge against him at the time he entered his guilty plea
  • Whether the appellant had in fact authorised or instructed his solicitor to enter a plea of guilty on his behalf
  • Whether the solicitor's evidence at the withdrawal application was affected by a conflict of interest, and what weight it should have been given
  • Whether the primary judge erred in refusing to permit the withdrawal of the plea

Decision

Meagher JA found it impossible to conclude that the appellant had understood the nature of the charge, and was not satisfied that the appellant had ever given instructions to enter a guilty plea. Drawing on the cross-examination of Mr Hovan, his Honour identified several concerning features: it was doubtful Mr Hovan had ever elicited the facts of the case from the appellant or obtained proper instructions; Mr Hovan appeared more interested in the appellant's usefulness as a translator and in extracting funds than in providing proper legal advice; and it was apparent that neither Mr Hovan nor anyone in his office had authority to enter the plea of guilty on 1 September 1998.

A central issue was Mr Hovan's conflict of interest. He had given evidence ostensibly supporting the validity of the plea, while at the same time seeking to justify his own conduct as the appellant's former solicitor. Meagher JA held that Mr Hovan should not have acted in that capacity, and that the court below should have been reluctant to place significant weight on his evidence for that reason.

Simpson J agreed, noting that the conflict of interest was apparent on the papers and would remain irremediable regardless of what cross-examination of the appellant might have produced. The Crown had also disclosed to the Court that Mr Hovan had declined a request to provide an affidavit, which further reinforced the Court's conclusions. Sperling J agreed with both judgments without adding separate reasons.

Orders Made

  • Appeal allowed
  • Plea of guilty set aside and conviction quashed
  • New trial ordered

Key Takeaways

  • A guilty plea may be withdrawn where it appears the accused did not appreciate the nature of the charge against them at the time of entering the plea.
  • Where a solicitor's evidence goes both to the validity of a client's guilty plea and to justifying the solicitor's own conduct, that solicitor operates under a conflict of interest that should affect the weight a court gives to their evidence.
  • The Court of Criminal Appeal found that failing to elicit a client's instructions or to explain the elements of a charge properly can fundamentally undermine the validity of a guilty plea entered on that client's behalf.
  • Sufficient doubt about whether the appellant had actually authorised the plea, combined with the compromised nature of the solicitor's evidence, made the quashing of the conviction and the ordering of a new trial inevitable.
  • The Court declined to adjourn to receive affidavit evidence from the absent appellant, finding that the conflict of interest was irremediable on the existing record and no purpose would be served by further delay.

Legislation and Cases Referenced

Cases:
- Regina v Lloyd Davies (16 December 1993, unreported) (NSW Court of Criminal Appeal, Badgery-Parker J) -- cited for the principles governing withdrawal of a guilty plea, including that a plea may be withdrawn where the accused did not appreciate the nature of the charge

Legislation: No specific legislation was cited in the judgment.