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Court of Criminal Appeal 14 June 2007

Norvenska v Director of Public Prosecutions (Cth)

[2007] NSWCCA 158

Fraud & dishonesty
APPEAL FROM INTERLOCUTORY JUDGMENT APPEAL BY WAY OF REHEARING CRIMINAL APPEAL APPLICATION TO WITHDRAW GUILTY PLEA APPLICATION BEFORE CONVICTION

Citation: Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 14 June 2007
Judge(s): Basten JA; Grove J; Howie J

Background

The appellant was the manager of a Sydney medical practice. He was charged with defrauding a Commonwealth public authority, namely Medicare, by altering Medicare assignment forms between January 1997 and February 1998 to claim inflated benefits. The charge was brought under s 29D of the Crimes Act 1914 (Cth).

The original trial commenced in March 2006, but the jury was discharged before delivering a verdict. Shortly before the retrial recommenced, the prosecution served a witness statement from a former Medicare investigator. On the morning proceedings were due to resume, the appellant conferred with his barrister and then pleaded guilty at midday.

Before the sentencing hearing, the appellant indicated he wished to withdraw his plea. His counsel withdrew, and a notice of motion was filed seeking leave to withdraw the guilty plea. Finnane DCJ in the District Court refused the application in March 2007, and the appellant sought to appeal that refusal.

  • Whether an appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against an interlocutory refusal to withdraw a guilty plea is an appeal by way of rehearing, and what that entails regarding additional evidence.
  • Whether a legally represented accused can withdraw a guilty plea on the basis of receiving inappropriate legal advice or misunderstanding the elements of the offence.
  • Whether the appellant had, in fact, received inappropriate legal advice or misunderstood the mental element (intention) required for the charge.

Decision

The Court of Criminal Appeal confirmed that an appeal against an interlocutory judgment under s 5F of the Criminal Appeal Act 1912 (NSW) proceeds by way of rehearing. Additional evidence may only be adduced with leave of the court.

On the substantive question, the Court affirmed the applicable principle: where an accused is legally represented, a guilty plea may be withdrawn if it can be established that the accused was inappropriately advised and either did not appreciate the nature of the charge or did not intend to admit guilt. This is a demanding threshold, and the burden rests on the accused to establish it.

The appellant's case rested on the claim that his barrister had misstated the mental element of the fraud offence, leading him to plead guilty under a misapprehension. The Court found this claim was not made out. The evidence showed the appellant had received clear advice that a guilty plea required him to accept guilt on all elements of the charge, he had signed written instructions acknowledging he understood this, and the trial judge had rejected his evidence that he signed under pressure or without understanding.

Basten JA, with Grove J and Howie J agreeing, concluded that no error had been established in Finnane DCJ's finding that the appellant had received appropriate, properly considered legal advice and understood it. The appeal was dismissed.

Orders Made

  • Extension of time for filing the application for leave to appeal granted by 28 days.
  • Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) granted.
  • Appeal dismissed.

Key Takeaways

  • A guilty plea entered by a legally represented accused may be withdrawn before conviction where the accused establishes inappropriate legal advice and either a misunderstanding of the charge or an absence of genuine intention to admit guilt.
  • The threshold for withdrawal is a demanding one: it is not enough to assert confusion or change of mind after the plea is entered.
  • Under s 5F of the Criminal Appeal Act 1912 (NSW), an appeal from an interlocutory judgment proceeds by way of rehearing, and fresh evidence requires leave before it can be adduced.
  • No error was established in the District Court's refusal to allow withdrawal where the accused had received clear oral and written advice, acknowledged understanding of the charge's elements, and the trial judge rejected the accused's evidence of pressure or misunderstanding.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced the principle that courts exercise restraint before allowing a plea to be withdrawn, particularly where legal representation and proper advice are demonstrated.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5F, 6
- Courts Legislation Amendment Act 2000 (NSW), Sch 3 [1]
- Crimes Act 1914 (Cth), s 29D

Cases:
- Maxwell v The Queen (1995) 184 CLR 501
- R v Forde [1923] 2 KB 400
- R v Murphy [1965] VR 187
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
- Hura (2001) 121 A Crim R 472
- Wilkes (2001) 122 A Crim R 310
- Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37
- Alexandroaia (1995) 81 A Crim R 286
- BWM (1997) 91 A Crim R 260
- House v The King (1936) 55 CLR 499
- Allesch v Maunz (2000) 203 CLR 172
- Peters v The Queen (1998) 192 CLR 493
- Macleod v The Queen (2003) 214 CLR 230