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6
Court of Criminal Appeal 10 August 2001

Regina v Sewell

[2001] NSWCCA 299

Fraud & dishonesty
WITHDRAWAL OF PLEA PRIOR TO CONVICTION APPLICABLE PRINCIPLES USING FALSE INSTRUMENTS

Citation: Regina v Sewell [2001] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 10 August 2001
Judge(s): Heydon JA, Simpson J, Smart AJ

Background

The applicant was a manager at a bus company who allegedly diverted cheques payable to his employer into an account he controlled. He did this by photocopying blank invoices, filling in details of bus jobs, and collecting the resulting cheques from State Rail. He then stamped the back of each cheque with his employer's stamp and endorsed them over to his own entity, a company called Prospect Promotions.

The applicant was charged with 17 counts of using a false instrument under s 300(2) of the Crimes Act 1900. The charges had a convoluted history: earlier convictions were quashed by the Court of Criminal Appeal in 1999 on the basis that a "claim of right" defence should have been left to the jury. A retrial was then commenced, during which new financial evidence emerged that significantly narrowed the scope of any viable claim of right.

Following extensive negotiations, the applicant pleaded guilty to 7 counts and asked the court to take 10 further counts into account. He subsequently sought to withdraw those pleas. After a series of procedural steps, including the withdrawal of multiple sets of lawyers and the filing and then abandonment of an earlier motion to withdraw, a District Court judge refused his application to withdraw the pleas. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal.

  • Whether the District Court judge correctly refused to allow the applicant to withdraw his guilty pleas prior to conviction
  • What principles govern an application to withdraw a guilty plea before sentence is imposed
  • Whether the endorsed cheques constituted "false instruments" within the meaning of ss 299 and 300 of the Crimes Act 1900
  • Whether the evidence was sufficient to support the charges of using a false instrument

Decision

Withdrawal of the plea

The Court confirmed that a guilty plea may be withdrawn before conviction in limited circumstances, including where the plea was not genuine or was induced by improper means. Here, the applicant's pleas were entered after lengthy negotiations, with experienced legal representation, and with full awareness of the evidence against him. The Court found no proper basis to disturb the judge's refusal, noting the applicant had previously withdrawn an earlier motion to withdraw on the same charges and had been represented by counsel throughout the key events.

The Court also considered the long procedural history carefully, observing that the negotiations on 9 and 10 May 2000 were conducted at arm's length and that the Crown's concession on the claim of right was reflected in the removal of three counts and a recalibrated set of charges. The applicant was not misled or improperly pressured into his pleas.

False instrument analysis

The Court examined whether the stamped endorsements on the cheques satisfied the definition of a "false instrument" under s 299 of the Crimes Act. The cheques were originally drawn payable to the employer (Westbus). When the applicant affixed the company stamp and endorsed the cheques over to Prospect Promotions, those instruments purported to represent that Westbus had authorised that endorsement. Westbus had not done so.

The Court found that several limbs of s 299(2) were engaged. The instruments falsely purported to have been made in the form they were, and to have been altered in that form, on the authority of Westbus, when no such authority existed. The argument that the materials were insufficient to support the charges was therefore rejected.

Orders Made

  • Extension of time for leave to appeal granted
  • Leave to appeal granted
  • Application dismissed

Key Takeaways

  • A guilty plea will not readily be withdrawn before conviction merely because the accused has second thoughts or changes lawyers; the applicant must demonstrate the plea was not genuine or was improperly induced.
  • Under ss 299 and 300 of the Crimes Act 1900, an instrument can be false where it purports to carry the authority of a person or entity that did not in fact authorise it, even if the original document (here, the cheque) was itself genuine.
  • Endorsing a cheque using an employer's stamp, without authority, can constitute making a false instrument because the endorsement misrepresents that the employer authorised the diversion of funds.
  • A claim of right defence in a false instrument prosecution may affect the scope of criminal liability but does not automatically undermine the factual basis of the charges, particularly where the quantum of any honest belief is significantly less than the total amount appropriated.
  • In dismissing the appeal, the Court of Criminal Appeal declined to disturb the District Court's exercise of discretion, emphasising the importance of finality and the applicant's full awareness of the case against him at the time of his pleas.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 299, 300(2)
- Criminal Appeal Rules

Cases
- Meissner v The Queen (1995) 184 CLR
- Maxwell v The Queen (1995) 184 CLR
- R v Toro-Martinez (2000) 114 A Crim R 533
- S v Recorder of Manchester [1971] AC 481
- R v Ross, NSWCCA, unreported, 20 April 1994
- Liberti (1991) 55 A Crim R
- Davis, NSWCCA, unreported, 16 December 1993
- R v Bargachoun, NSWCCA, unreported, 23 October 1995
- R v Foley [1963] NSWR