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Court of Criminal Appeal 11 February 2000

Regina v Marchando

[2000] NSWCCA 8

Also reported as (2000) 110 A Crim R 337
Drugs

Citation: Regina v Marchando [2000] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 11 February 2000
Judges: Wood CJ at CL, Sully J, Simpson J

Background

The applicant, a United States citizen, was arrested at Sydney Airport in February 1998 after arriving on a flight from Los Angeles. The Crown alleged he had coached two female co-offenders to secrete prohibited drugs on their bodies and had monitored them during the flight. Both women pleaded guilty and agreed to give evidence against the applicant.

On 8 February 1999, the day fixed for a joint trial, the applicant's co-accused pleaded guilty. The applicant maintained his not-guilty plea. Judge Coleman then ruled on the admissibility of several items of prosecution evidence, including a video-link statement from a United States witness. The applicant pleaded guilty the following day, on 10 February 1999.

Before sentencing, the applicant sought leave to withdraw his guilty plea on two separate occasions. Judge Coleman refused both applications. The applicant then sought leave to appeal those refusals to the Court of Criminal Appeal.

  • Whether the District Court erred in refusing leave to withdraw the guilty plea on each occasion
  • Whether the trial judge's ruling on the admissibility of the video-link evidence (obtained under the Foreign Evidence Act 1994 (Cth) and related Commonwealth legislation) was correct
  • Whether any combination of factors, including legal advice received, a desire to return to the United States, Legal Aid Commission funding refusals, and the evidentiary ruling, were sufficient to cast doubt on the integrity of the plea

Decision

Simpson J (with whom Wood CJ at CL and Sully J agreed) set out the relevant legal principles at the outset. A court has a discretion to permit a change of plea at any time before sentence. Leave should readily be granted where the plea resulted from a material mistake or where its integrity is otherwise questionable, such as a lack of understanding of the charge, absence of sufficient evidence to convict, fraud or improper inducement, or a miscarriage of justice arising from an erroneous evidentiary ruling. The central question in all cases is whether the applicant has shown that the plea was not genuinely attributable to a consciousness of guilt.

The Court examined the admissibility of the video-link evidence from the United States witness in some detail, noting this raised issues in "relatively untravelled statutory territory." After careful analysis of the Foreign Evidence Act 1994 (Cth) and related legislation, the Court concluded the trial judge had correctly ruled the evidence admissible. Because the evidentiary ruling was not erroneous, the timing coincidence between that ruling and the entry of the plea could not, of itself, support a finding that the plea lacked integrity.

On the remaining grounds, Judge Coleman had made express findings of fact rejecting the applicant's claim that he was confused about or ignorant of the charge. The trial judge found, to the criminal standard, that the applicant was aware of the importation. The Legal Aid Commission's refusal to fund travel for United States defence witnesses carried no weight because no identification was ever made of those witnesses, the evidence they might give, or the issues to which that evidence was relevant. The Court found no reason to disturb either of Judge Coleman's decisions refusing leave to reverse the plea.

Orders Made

  • The applicant was granted leave to amend the grounds of application by adding the proposed new ground
  • Leave to appeal was granted in respect of the decisions of 3 May 1999 and 9 June 1999 refusing leave to withdraw the guilty plea
  • Each appeal was dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a court retains a discretion to permit withdrawal of a guilty plea at any time prior to sentence, with leave to be readily granted where the plea's integrity is genuinely questionable.
  • A plea that coincides closely in time with an adverse evidentiary ruling does not automatically lack integrity; the applicant must still demonstrate the ruling was wrong and that it materially caused the plea to be entered.
  • Where a trial judge makes express adverse findings about a defendant's credit and rejects the defendant's account of why the plea was entered, those factual findings are difficult to displace on appeal.
  • An applicant seeking to rely on the unavailability of defence witnesses must identify those witnesses, the substance of their anticipated evidence, and the issues to which it would be relevant, or the ground will carry no weight.
  • In dismissing the appeal, the Court treated the correct application of Commonwealth foreign evidence legislation as the threshold question, illustrating that challenges to guilty pleas founded on erroneous evidentiary rulings depend entirely on whether the underlying ruling was actually wrong.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)
- Mutual Assistance in Criminal Cases Act 1987 (Cth)
- Foreign Evidence Act 1994 (Cth)
- Evidence Act 1995 (NSW)

Cases:
- R v Griffiths (1977) 137 CLR 293
- Chow v DPP (1992) 28 NSWLR 593
- R v Sagiv (1986) 22 A Crim R 73
- R v Boag (1994) 73 A Crim R 35
- R v Chiron [1980] 1 NSWLR 218
- R v Davies (1993) 19 MVR 481
- House v R (1936) 55 CLR 499