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Court of Criminal Appeal 6 July 2006

Regina v Abbruzzese

[2006] NSWCCA 207

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE INTERLOCUTORY APPEAL BY CROWN LEAVE TO WITHDRAW PLEA OF GUILTY ORDER MADE IN ABSENCE OF EVIDENCE

Citation: Regina v Abbruzzese [2006] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 6 July 2006
Judge(s): Grove J, Hidden J, Kirby J

Background

The respondent pleaded guilty in the Local Court to charges of making a false representation to obtain a Commonwealth benefit and obtaining financial advantage by deception, arising from alleged Centrelink overpayments between 1997 and 2002. He was committed to the District Court for sentencing. Over the following two years, the matter was plagued by repeated changes of legal representation and inconsistent instructions to successive solicitors.

During a sentence hearing before Puckeridge DCJ in November 2005, the respondent's counsel indicated that the respondent intended to give evidence inconsistent with his guilty pleas, making continued representation impossible. The respondent himself told the court he had done nothing wrong and had only pleaded guilty on his lawyers' advice. Puckeridge DCJ declined to accept the pleas on the basis of what had been said, but made clear that a formal application to withdraw the pleas would still be required.

The matter came before Freeman DCJ on 13 April 2006. Without any evidence being led, Freeman DCJ entered pleas of not guilty on the respondent's behalf. The Crown appealed, contending that the District Court had failed to exercise its jurisdiction according to law.

  • Whether a judge can enter a plea of not guilty on a defendant's behalf, or grant leave to withdraw a guilty plea, in the absence of any evidence supporting such a course
  • Whether the respondent's stated intention to traverse (that is, contradict) his guilty plea was sufficient to justify withdrawal of the plea without a formal application supported by evidence
  • Whether the Crown had a legitimate procedural interest in having the application determined properly on the merits

Decision

The Court of Criminal Appeal, in a judgment delivered by Grove J (with Hidden J and Kirby J agreeing), upheld the Crown's appeal. The Court found that Freeman DCJ had not lawfully determined the question of whether the respondent should have leave to withdraw his guilty pleas. An order entering pleas of not guilty had been made without evidence being placed before the court to justify that outcome.

Grove J observed that an applicant seeking leave to withdraw a guilty plea carries the onus of demonstrating why such leave should be granted. That onus cannot be discharged without evidence. The respondent had, at no point, actually traversed his pleas in court. He had only signalled an intention to do so, and a stated intention falls well short of the threshold required to authorise rejection or withdrawal of a guilty plea.

The Court also accepted the Crown's submission that it is entitled to procedural regularity. Where an application to withdraw a guilty plea is made, the Crown has a legitimate interest in having that application determined on the merits of evidence actually presented, not simply on the basis of a defendant's asserted intentions or general demeanour in court.

Grove J acknowledged the practical difficulty Freeman DCJ faced given the respondent's conduct throughout the proceedings, but concluded that the orders made were not lawfully open in the circumstances. The matter was remitted to the District Court for proper determination.

Orders Made

  • The plea of not guilty entered by Freeman DCJ on 13 April 2006 on the respondent's behalf was quashed
  • Ancillary orders and directions made by Freeman DCJ on 13 April 2006 (including directions fixing a trial date) were also quashed
  • The matter was remitted to the District Court to be dealt with according to law

Key Takeaways

  • A defendant seeking leave to withdraw a guilty plea bears the onus of demonstrating entitlement to do so, and that onus cannot be discharged without evidence being placed before the court.
  • Merely stating an intention to give evidence inconsistent with a guilty plea does not constitute actually traversing that plea, and does not, of itself, authorise a court to reject or withdraw the plea.
  • The Court of Criminal Appeal confirmed that the Crown has a legitimate entitlement to procedural regularity: where a formal application to withdraw a guilty plea is made, the Crown is entitled to have it determined on the merits of evidence.
  • A sentencing judge who concludes that a guilty plea cannot be accepted on the basis of what has been said in court does not thereby automatically enter a plea of not guilty. A formal application, supported by evidence, remains necessary before leave to withdraw can be granted.
  • In remitting the matter, the Court of Criminal Appeal left open the substantive question of whether leave to withdraw the pleas would ultimately be granted, making clear that the issue required proper determination rather than summary disposal.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Van [2002] NSWCCA 148