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Court of Criminal Appeal 13 December 2006

Augusto Piras v Regina

[2006] NSWCCA 396

Also reported as 167 A Crim R 260
Drugs

Citation: Augusto Piras v Regina [2006] NSWCCA 396
Court: Court of Criminal Appeal, New South Wales
Date: 13 December 2006
Judge(s): Sully J (principal judgment); Howie J and Hall J (agreeing)

Background

The applicant had been charged with supplying a commercial quantity of heroin. During a joint trial, the trial judge commented that the Crown might have difficulty proving the commercial quantity element. This observation prompted plea negotiations, and the applicant pleaded guilty to the lesser charge of knowingly taking part in the supply of heroin on 24 June 2004.

After a change in legal representation, the applicant instructed his new counsel to apply to withdraw his guilty plea and substitute a plea of not guilty. That application was heard over several days before Williams DCJ in the District Court, who refused it in a reserved judgment delivered on 18 May 2006.

The applicant then sought leave to appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW), which permits appeals against certain interlocutory judgments. He also required an extension of time because the application had not been lodged within the prescribed period.

  • Whether Williams DCJ erred in refusing to allow the applicant to withdraw his guilty plea and substitute a not guilty plea
  • Whether the evidence supported a finding that there was a real question about the applicant's guilt
  • Whether the applicant's former counsel was incompetent, rendering the plea a miscarriage of justice
  • Whether Williams DCJ failed to properly assess the credibility of the applicant's former legal representatives
  • Whether an adverse inference should have been drawn from the Crown's failure to call the original Crown Prosecutor (the Jones v Dunkel point)
  • Whether Williams DCJ demonstrated actual or apprehended bias throughout the hearing, and whether his Honour erred in refusing to disqualify himself

Decision

The Court of Criminal Appeal refused leave to appeal on all grounds. Sully J (with Howie J and Hall J agreeing) approached the matter by applying the principles from House v The King (1936) 55 CLR 449: because the decision of Williams DCJ was a discretionary judgment, it could only be disturbed on appeal if his Honour had acted on a wrong principle, allowed irrelevant matters to influence him, mistaken the facts, or reached a result that was unreasonable or plainly unjust.

On the substantive grounds (Grounds 3 and its sub-grounds), the Court found that no such error had been established. The essential findings of fact made by Williams DCJ were reasonably open on the evidence, and the applicant had not demonstrated that the refusal to permit a change of plea amounted to an error of the kind required to warrant appellate intervention.

On the bias grounds (Grounds 1 and 2), the Court acknowledged that the hearing had been tense and that the atmosphere in the courtroom was unfortunate, with both the judge and counsel appearing to become progressively exasperated. However, the Court found that this did not establish bias of the kind that would taint the ultimate decision. Sully J concluded that a fair reading of Williams DCJ's published reasons revealed careful and logical reasoning, and that a reasonably informed and fair-minded person would not view the judgment as a vindication of pre-judgment rather than an impartial assessment.

Orders Made

  • The applicant was granted such extension of time as was necessary to permit the section 5F application lodged on 14 June 2006 (and subsequently amended) to be made.
  • Leave to appeal was refused and the application for leave was dismissed.

Key Takeaways

  • A discretionary decision to refuse withdrawal of a guilty plea will only be disturbed on appeal where the primary judge acted on a wrong principle, mistook the facts, took irrelevant matters into account, or reached an unreasonable result, following House v The King.
  • The Court of Criminal Appeal confirmed that applications to reverse a guilty plea after the plea has been taken but before sentence are governed by discretionary principles established in R v Foley [1963] NSWR 1270.
  • Courtroom tension and mutual exasperation between a judge and counsel, while regrettable, does not by itself establish the kind of bias sufficient to vitiate a judgment; the ultimate question is whether the published reasons reflect impartial and unprejudiced reasoning.
  • An extension of time to file a section 5F application may be granted even where no detailed explanation for delay beyond pending Legal Aid approval is provided, provided the application is otherwise considered on its merits.
  • No error was established in Williams DCJ's credit findings, his treatment of the Jones v Dunkel argument, or his assessment of whether former counsel's conduct amounted to incompetence giving rise to a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW)

Cases
- House v The King (1936) 55 CLR 449
- R v Foley [1963] NSWR 1270
- Reg v KCH [2001] NSWCCA 273
- Winningham v The Queen (1995) 69 ALJR 775
- Vakauta v Kelly (1989) 167 CLR 568