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District Court 3 June 2013

R v Nguyen

[2013] NSWDC 340

Drugs
CRIMINAL LAW PROCEDURE PLEAS WITHDRAWAL OF GUILTY PLEA DRUG OFFENCE LIMITED KNOWLEDGE OF ENGLISH

Citation: R v Nguyen [2013] NSWDC 340
Court: District Court of New South Wales
Date: 3 June 2013
Judge: Cogswell SC DCJ

Background

The defendant, a Vietnamese-born woman who had lived in Australia since 1991 but had limited English, was charged with importing a prohibited substance contrary to the Customs Act 1901 (Cth). On 12 March 2013, represented by both a barrister and a solicitor, she pleaded guilty in court.

Approximately two months after entering her plea, and before sentencing, she told the Probation and Parole Service that she had unknowingly imported the substance and did not consider herself guilty. Her counsel then applied to the District Court to set aside the guilty plea.

The defendant filed an affidavit stating she had pleaded guilty because the goods were in her possession and she understood a plea would reduce her sentence. She said she had not properly understood the charge, and specifically had not grasped the element of recklessness.

  • Whether the guilty plea should be set aside on the basis that it may not have been a true admission of guilt
  • Whether the defendant understood the mental element (recklessness) required for the offence
  • Whether any ignorance, whether legal or linguistic, undermined the integrity of the plea

Decision

Cogswell SC DCJ noted that a guilty plea is a solemn step that formally acknowledges each element of an offence. Citing Maxwell v The Queen (1996) 184 CLR 501, his Honour confirmed that a plea must be unequivocal and not made in circumstances suggesting it is not a true admission of guilt, with those circumstances including ignorance, fear, duress, or mistake.

His Honour drew on Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129, which states that the central question is whether a miscarriage of justice would arise if the court acted on the plea to convict and sentence. If the integrity of the plea is seriously called into question, or it would be unfair to act on it, a miscarriage of justice would inevitably follow from refusing the defendant leave to withdraw.

Three factors concerned the court. First, the defendant's primary legal advisor was a barrister who did not speak Vietnamese, and her English was very limited, even though a Vietnamese-speaking solicitor and her son were also present. Second, the disputed element was recklessness, specifically whether the defendant was aware of a substantial risk that the goods were prohibited. His Honour described this mental element as involving genuine subtleties that required careful understanding, particularly for someone with limited English. Third, and reinforcing those concerns, the defendant had maintained to the Probation and Parole Service just two months after the plea that she had unknowingly imported the goods and did not consider herself guilty.

Weighing these factors together, the court was satisfied that there was a sufficient risk the plea had been entered with some degree of legal or linguistic ignorance, which affected its integrity. Leave to withdraw the plea was granted.

Orders Made

  • The defendant was granted leave to withdraw her guilty plea
  • The matter was adjourned to the short matters list before the Chief Judge on 14 June 2013 for arraignment and allocation of a trial date
  • Bail was continued on the same conditions until 14 June 2013

Key Takeaways

  • A guilty plea will be set aside where there is a real risk it was entered without a genuine understanding of all elements of the offence, including the relevant mental element.
  • Where a defendant has limited English and the primary legal advisor does not speak the defendant's language, a court will scrutinise whether the nuances of the charge were adequately communicated, even if bilingual persons were present during the conference.
  • The recklessness element under the Customs Act 1901 (Cth), specifically awareness of a substantial risk that imported goods were prohibited, involves subtleties that a court may find difficult to attribute to a defendant who pleaded guilty while maintaining throughout the pre-sentence process that she had no such awareness.
  • Consistent statements made to the Probation and Parole Service shortly after a plea, denying guilt, can reinforce a conclusion that the integrity of the plea is in doubt, even if they are not determinative on their own.
  • Following Wong v DPP (NSW), the test is whether a miscarriage of justice would result from acting on the plea; if the integrity of the plea is seriously called into question, the court should allow withdrawal rather than proceed to conviction and sentence on that basis.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth)

Cases
- Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501; (1996) 87 A Crim R 180
- Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37