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Court of Criminal Appeal 2 March 2005

Regina v Sid Zaiter

[2005] NSWCCA 61

Drugs
CRIMINAL LAW WHETHER COURT ERRED IN REFUSING LEAVE.

Citation: Regina v Sid Zaiter [2005] NSWCCA 61
Court: New South Wales Court of Criminal Appeal
Date: 2 March 2005
Judge(s): Grove J, James J, Barr J (Barr J delivering the principal judgment)

Background

The applicant was a drug dealer charged on three counts: supplying a large commercial quantity of cocaine (1 kilogram), supplying a commercial quantity of methylamphetamine (500 grams), and supplying pseudoephedrine (100 grams). The charges arose from a series of recorded telephone conversations between the applicant and an associate, in which negotiations for drug supply were discussed in some detail.

Following negotiations between the parties, the applicant pleaded guilty in February 2004 to the cocaine supply charge, with the remaining charges to be taken into account under sentencing provisions. The plea was entered before Hosking QC DCJ in the District Court.

The applicant subsequently sought to withdraw his guilty plea. The application was refused by Woods QC DCJ. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under s 5E of the Criminal Appeal Act.

  • Whether the evidence was capable of proving the offence to which the applicant pleaded guilty, specifically whether the recorded telephone conversations could establish supply of cocaine rather than mere negotiation or intention.
  • Whether the applicant genuinely understood the nature of the charge to which he pleaded guilty, including any distinction between the phrase "supply" and "knowingly take part in the supply."
  • Whether the applicant's plea was entered on the basis of imprudent or inappropriate legal advice.
  • Whether the District Court erred in refusing leave to withdraw the guilty plea.

Decision

On the question of whether the evidence was capable of supporting the cocaine supply charge, the Court found the recorded telephone conversations provided ample material. The conversations showed the applicant actively negotiating for the supply of cocaine in kilogram quantities, discussing price, quality, and availability. The Court concluded this evidence was plainly capable of proving the offence.

On the question of the distinction between "supply" and "knowingly take part in the supply," the Court accepted the trial judge's finding that the applicant's solicitor had inadvertently used the word "supply" in the written instructions when he should have used the full statutory phrase. The Court held this drafting error did not undermine the plea. The only reasonable conclusion available to the District Court was that the advice given and the instructions provided all proceeded on the basis that the applicant was guilty of the charge the Crown had brought against him.

The Court also upheld the District Court's rejection of the applicant's claim that he had not understood the document he signed or that he had been improperly advised. Woods QC DCJ had found this evidence unconvincing, and the Court of Criminal Appeal saw no error in that conclusion.

Finally, the District Court had concluded that the real reason for the withdrawal application was simply that the applicant had developed cold feet after entering the plea. The Court of Criminal Appeal found no basis to disturb that finding, concluding that neither ground of appeal had been made good.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • An application to withdraw a guilty plea will not succeed where the court concludes the real motivation is simply a change of heart after the event, rather than a genuine vitiating circumstance such as misunderstanding or improper advice.
  • Recorded telephone conversations negotiating drug supply in kilogram quantities can constitute evidence capable of proving a charge of knowingly taking part in supply, even absent a completed transaction.
  • A minor drafting inconsistency in written instructions (using "supply" rather than "knowingly take part in the supply") will not automatically invalidate a guilty plea where the surrounding evidence shows the advice and instructions consistently proceeded on the basis of guilt of the actual charge.
  • No error was established in the District Court's findings that the applicant understood the charge, that his plea reflected genuine instructions, and that his legal advisers had not given imprudent or inappropriate advice.
  • In dismissing the application, the Court of Criminal Appeal confirmed that the threshold for establishing error in a refusal to permit withdrawal of a guilty plea is a demanding one.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5E
- Crimes (Sentencing Procedure) Act (NSW), s 32

Cases Cited:
- Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern Limited) [1953] 1 QB 401
- R v Deng (1996) 91 A Crim R 80
- R v Derbas (1993) 66 A Crim R 327
- Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508
- R v Carusi and Cassar (1989) 17 NSWLR 516
- R v Chow (1987) 11 NSWLR 561
- R v Chiron [1980] 1 NSWLR 218
- R v Ondrovcik, Court of Criminal Appeal, New South Wales, 4 November 1977
- R v Boag (1994) 73 A Crim R 35
- R v BD (2001) 128 A Crim R 28
- R v McCoy (2001) 51 NSWLR 702