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Court of Criminal Appeal 17 June 2015

Garcia-Godos v R (Cth)

[2015] NSWCCA 144

Drugs
CRIMINAL LAW NO ERROR IN FACT FINDING NO ERROR IN EXERCISE OF DISCRETION APPEAL DISMISSED.

Citation: Garcia-Godos v R (Cth) [2015] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 17 June 2015
Judges: Hoeben CJ at CL; Johnson J; Beech-Jones J

Background

The applicant was charged with importing a commercial quantity of cocaine into Australia from Peru, along with two counts of conspiring to deal with proceeds of crime. After extradition from Peru and several years of proceedings in the NSW District Court, he entered pleas of guilty to the importation count and one conspiracy count on 20 May 2011, following plea negotiations between his solicitor and the Commonwealth Director of Public Prosecutions.

In March 2012, the applicant sought leave to withdraw his guilty pleas, claiming he had never genuinely agreed to plead guilty to the importation count. He said he had misunderstood the legal effect of the plea, that his solicitors pressured him to plead guilty, and that he believed the sentencing judge could still dismiss or reduce the importation charge after hearing his evidence. The application was heard over several days before Toner SC DCJ in 2013.

The District Court dismissed the application. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). He represented himself at the appeal.

  • Whether the District Court erred in law in refusing to allow the applicant to withdraw his guilty plea to the importation count.
  • Whether the trial judge made factual errors in rejecting the applicant's account of how the plea came to be entered.
  • Whether the trial judge erred in the exercise of his discretion in refusing leave to withdraw the plea.

Decision

Hoeben CJ at CL reviewed the District Court proceedings in detail, noting that the applicant's case rested primarily on his own evidence and the evidence of a fellow prisoner. The trial judge found the applicant's evidence unconvincing and noted significant internal contradictions, including a direct conflict between his claim that he never agreed to plead guilty and his later concession that he told his lawyers on a specific date that he did not want to plead guilty to the importation charge, which implied he understood that a guilty plea to that charge was under active consideration.

The solicitors' conference notes played a central role in the District Court's findings. The notes, which the applicant did not suggest were fabricated, recorded that he acknowledged involvement in the offence (though disputing his level of seniority) and that he was expressly told the choice between trial and plea was his own. A note from 6 April 2011, made in the presence of both his barrister and an interpreter, recorded him saying "I do not want to go to trial but I was not the principal." Toner SC DCJ concluded from this objective material that the applicant understood he was admitting involvement when he pleaded guilty.

The Court of Criminal Appeal found no error in the District Court's approach to the applicable law, no error in the factual findings, and no error in the exercise of discretion. Hoeben CJ at CL noted that Toner SC DCJ's conclusion was well-supported by the evidence and that no miscarriage of justice would arise from requiring the applicant to maintain his guilty plea. Johnson J agreed. Beech-Jones J added that once the primary findings of fact were made, rejection of the application to withdraw the plea was inevitable.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not interfere with a trial judge's refusal to allow plea withdrawal unless error of law, error of fact, or error in the exercise of discretion is established.
  • Objective documentary evidence, such as solicitors' file notes recording a client's instructions, can decisively undermine a later claim that a plea was not genuinely or knowingly entered.
  • A finding that a defendant understood the plea and was not pressured into it was treated as essentially determinative: once those factual findings stood, the refusal to permit withdrawal followed as a matter of course.
  • The District Court's advantage in observing all witnesses give evidence was recognised by Beech-Jones J as an important factor supporting deference to the primary factual findings on appeal.
  • Where an accused claims a misunderstanding about the legal effect of a guilty plea, that claim is assessed against the totality of the evidence, including conference notes, the presence of interpreters and counsel, and any internal inconsistencies in the accused's own account.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Code (Cth), ss 307.1(1), 11.5(1), 400.4(1)
- Crimes Act 1914 (Cth), s 16BA

Cases:
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Frodsham v O'Gorman (1979) 1 NSWLR 683
- House v R [1936] HCA 40; 55 CLR 499
- Khamis v R [2014] NSWCCA 152
- Kim v R [2015] NSWCCA 115
- Lawson v R [2011] NSWCCA 44; 206 A Crim R 557
- Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
- R v Boag (1994) 73 A Crim R 35
- R v Sewell [2001] NSWCCA 299
- R v Van [2002] NSWCCA 148; 129 A Crim R 229
- Wong v DPP (NSW) [2005] NSWSC 129; 155 A Crim R 37