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26
Supreme Court 3 March 2005

Ming Yuk (Raymond) Wong v The Director of Public Prosecutions

[2005] NSWSC 129

Also reported as (2005) 155 A Crim R 37
Sexual offences
CRIMINAL LAW PRACTICE AND PROCEDURE

Citation: Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 March 2005
Judge(s): Howie J

Background

The plaintiff was a defendant in Local Court summary proceedings charged with an act of indecency under s 61N(2) of the Crimes Act 1900. He had pleaded guilty on 30 June 2004, represented at the time by experienced criminal solicitors. Before the sentencing date, he changed legal representatives and sought to withdraw his guilty plea.

A first magistrate heard and refused that application on 5 August 2004, without any evidence having been placed before the court. The matter was then listed for sentencing on 11 August 2004. When the plaintiff's new solicitor appeared on that date, a second magistrate declined to entertain a fresh application to withdraw the plea. That magistrate took the view that the question had already been decided and was not for him to revisit.

The plaintiff sought leave to appeal to the Supreme Court against both magistrates' decisions. The Director of Public Prosecutions took carriage of the matter on behalf of the prosecution.

  • Whether leave to appeal should be granted against each magistrate's interlocutory decision refusing the guilty plea withdrawal application
  • Whether the first magistrate erred in law by determining the application without any evidence before the court
  • Whether the second magistrate erred in law by refusing to exercise jurisdiction to hear the application at all, on the basis that a prior magistrate had already ruled on it
  • What principles govern a court's discretion to entertain a second application for an interlocutory order already decided by another judicial officer

Decision

Howie J granted leave to appeal in respect of the second magistrate's decision and allowed that appeal, quashing the order and remitting the matter to the Local Court. Leave to appeal against the first magistrate's decision was refused, making it unnecessary to determine whether that decision was also infected by error.

On the central question concerning the second magistrate, the court found that a refusal to exercise jurisdiction is itself an error of law. There was no dispute that a court may properly decline to re-entertain an interlocutory application already decided, where no significant new material is presented. However, that principle requires the court to examine whether new material exists before refusing to proceed. The second magistrate did not do that. He declined to hear the application at all, simply because the first magistrate had refused it, and he did so despite an affidavit being tendered and despite counsel's submissions on the interlocutory nature of the earlier ruling.

The court observed that a person is not necessarily deprived of the ability to bring a second application merely because a first application on the same subject was dismissed. The court's task is to assess whether sufficient new or different material warrants a fresh exercise of discretion. Bypassing that assessment entirely amounts to a failure to exercise jurisdiction.

The court also addressed, for the benefit of the remitted hearing, several principles governing guilty plea withdrawal applications. Maintaining a plea is consistent with a defendant asserting innocence. A legal representative is not ethically precluded from appearing for a defendant on a guilty plea simply because that defendant gives instructions denying guilt, and a change of solicitors providing inconsistent instructions is not itself a ground for withdrawing a plea.

Orders Made

  • Leave to appeal against the second magistrate's decision of 11 August 2004 is granted.
  • The appeal is allowed and the second magistrate's order is quashed.
  • The matter is remitted to the Local Court to be heard according to law and in conformity with the judgment.
  • Leave to appeal against the first magistrate's decision is refused.
  • The defendant (Director of Public Prosecutions) is to pay the costs of the plaintiff.

Key Takeaways

  • A magistrate's refusal to exercise jurisdiction to hear an application, as distinct from a refusal after hearing the merits, constitutes an error of law in NSW courts.
  • Where a prior interlocutory decision has been made, the correct approach is to assess whether significant new material justifies a fresh exercise of discretion. Declining to assess that question at all is itself a reviewable error.
  • Under the principles drawn from Meissner v The Queen (1995) 184 CLR 132, a guilty plea is not invalidated merely because the defendant simultaneously asserts innocence. The two positions are not legally inconsistent.
  • Changing legal representatives who then hold instructions inconsistent with a guilty plea does not, of itself, constitute a ground for withdrawing that plea.
  • Applications to withdraw a guilty plea in the Local Court are interlocutory in nature, meaning leave is required before appealing such decisions to the Supreme Court under the Crimes (Local Courts Appeal and Review) Act 2001.

Legislation and Cases Referenced

Legislation
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 12, 53(3)
- Crimes Act 1900 (NSW), s 61N(2)

Cases
- DPP (NSW) v Scheibel (2004) A Crim R 576
- R v Sewell [2001] NSWCCA 299
- Hall v Nominal Defendant (1966) 117 CLR 423
- R v Boag (1994) 73 A Crim R 35
- R v Van [2002] NSWCCA 148
- Meissner v The Queen (1995) 184 CLR 132
- Liberti (1991) 55 A Crim R 120
- R v Allison (2003) 138 A Crim R 378