Citation: Application by Bill Bayeh under s 78 Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1358
Court: Supreme Court of New South Wales
Date: 9 November 2012
Judge: Latham J
Background
The applicant had pleaded guilty in November 1998 to two charges of conspiring to supply large commercial quantities of cocaine and heroin. The charges arose from a drug distribution operation centred on a coffee lounge at Kings Cross, where the applicant was identified as the principal organiser. He received a minimum term of 15 years imprisonment on the cocaine charge and a fixed term of 9 years on the heroin charge, both commencing in July 1996.
The applicant had previously appealed against the severity of his sentence to the Court of Criminal Appeal in 2000, which dismissed that appeal. He had also filed a notice of appeal against conviction but later withdrew it. More than ten years after sentencing, he filed the present application seeking an inquiry into both his conviction and sentence under s 78 of the Crimes (Appeal and Review) Act 2001.
The applicant alleged that his solicitor at the time had acted fraudulently in securing his pleas of guilty, and he sought, in effect, leave to withdraw those pleas. No supporting evidence was filed with the application, and no explanation was offered for the decade-long delay.
Legal Issues
- Whether the Supreme Court should direct a further inquiry into the applicant's conviction and sentence under s 78 of the Crimes (Appeal and Review) Act 2001
- Whether the applicant's allegation that his solicitor fraudulently induced his guilty pleas provided a sufficient basis to warrant such an inquiry
- Whether the unexplained delay of more than ten years was fatal to the application
- Whether any misrepresentation about the length of sentence, even if accepted, would justify leave to withdraw the guilty pleas
Decision
Latham J declined to direct any further inquiry and refused to refer the matter to the Court of Criminal Appeal. Her Honour applied s 79 of the Act, which permits the Supreme Court to refuse to further consider an application if it does not disclose sufficient doubt about the conviction or sentence, or if it would not be in the interests of justice to proceed.
The central allegation, that the applicant's former solicitor had acted fraudulently in obtaining his guilty pleas, was entirely unsupported by evidence. No affidavit, document, or material of any kind was filed in support of the application. Latham J noted that this deficiency alone was a significant obstacle.
The delay was equally damaging to the application. Experienced senior counsel and an independent solicitor had conducted the applicant's severity appeal in 2000, yet no application to withdraw the guilty pleas was pursued at that time, despite the applicant having originally filed a conviction appeal before withdrawing it. No reason was advanced for waiting more than ten years before raising the solicitor misconduct allegation.
Even setting aside delay and the absence of evidence, Latham J held that an alleged misrepresentation about sentence length would not justify withdrawing the pleas. The applicant did not dispute understanding the nature of the charges, and the only factual issue at sentence, the quantity of drugs involved, had already been comprehensively addressed during the 2000 appeal. Given the guilty pleas and the strength of the Crown case, the Court found there was no basis for any sense of unease about allowing the conviction and sentence to stand.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 79 of the Crimes (Appeal and Review) Act 2001, the Supreme Court may decline to further consider a s 78 application where it discloses no sufficient doubt about the conviction or sentence and where proceeding would not be in the interests of justice.
- An application of this kind filed more than ten years after conviction, with no explanation for the delay, carries significant forensic disadvantage, particularly where earlier appeal proceedings provided an opportunity to raise the same complaint.
- Allegations of solicitor misconduct as a ground for withdrawing guilty pleas must be supported by evidence. An unsupported assertion, however serious, does not compel an inquiry.
- A claimed misrepresentation about the length of sentence is not sufficient, on its own, to justify leave to withdraw a guilty plea where the applicant understood the nature of the charges and where the factual basis for conviction is not genuinely contested.
- In assessing whether any unease about a conviction is warranted, the Supreme Court takes into account the overall strength of the Crown case alongside the circumstances in which the guilty pleas were entered.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78 and 79
Cases
- R v Bayeh [2000] NSWCCA 473
- Application of Peter James Holland [2008] NSWSC 251