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Court of Criminal Appeal 19 May 2017

Budrodeen v R

[2017] NSWCCA 100

Sexual offences
CRIMINAL LAW PLEA OF GUILTY INTEGRITY OF PLEA DESTRUCTION OF EVIDENCE ENTRAPMENT NO DEFENCE OF ENTRAPMENT

Citation: Budrodeen v R [2017] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 19 May 2017
Judge(s): Beazley ACJ (with Adamson J and Wilson J agreeing)

Background

The applicant, a taxi driver, pleaded guilty on 30 September 2015 to one count of sexual intercourse with a person aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offence occurred when he drove a 15-year-old school student home from a hotel and stopped the vehicle during the journey. The matter had previously gone to trial, resulting in convictions that were set aside on appeal and a new trial ordered.

At the time of his guilty plea, the applicant had already served approximately 1 year and 8 months on remand. The sentencing judge imposed a 3-year term with a non-parole period matching time already served, resulting in the applicant's immediate release on parole.

The applicant then sought leave to appeal against his conviction. He sought an outright acquittal rather than a retrial, arguing that evidence had been destroyed and that he had been the victim of entrapment by police and others.

  • Whether the alleged destruction or suppression of CCTV footage from the hotel impugned the integrity of the guilty plea
  • Whether an act of entrapment occurred, and if so, whether entrapment provided a basis for setting aside a conviction entered on a guilty plea
  • What circumstances are required to justify setting aside a conviction following a guilty plea

Decision

Integrity of the guilty plea as the central question. Beazley ACJ (with Adamson and Wilson JJ agreeing) confirmed that, on an appeal against conviction following a guilty plea, the dispositive question is the integrity of that plea. A conviction will not be set aside unless a miscarriage of justice is demonstrated. Further, leave to appeal will succeed only where there is a real question about the guilt of the accused.

Ground 1: Alleged destruction of evidence. The applicant contended that CCTV footage from the hotel had been suppressed, concealed, or destroyed. The Court found no material before it to support that contention. The manager of Newcastle Taxis was available to give evidence that a relevant voice recording had been corrupted, rather than deliberately destroyed. Nothing in the material raised any doubt about the integrity of the plea, and this ground was rejected.

Ground 2: Entrapment. The Court reaffirmed that entrapment does not constitute a substantive defence under Australian common law, citing Ridgeway v The Queen (1995) 184 CLR 19. Even setting that aside, the Court found the factual foundation for the entrapment allegation was entirely unestablished. The applicant's case rested on the suggestion that Newcastle Taxis had been directed by police to assign the relevant fare to him, and that the complainant or police knew the passenger was under 16. There was no evidence to support any of these propositions.

Overall conclusion. Having found no basis on either ground to question the integrity of the plea or cast doubt on the applicant's guilt, the Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction entered on a guilty plea will not be set aside merely because the applicant disputes aspects of the surrounding circumstances; the integrity of the plea itself must be shown to have been compromised, and there must be a real question about the accused's guilt.
  • The Court of Criminal Appeal confirmed that entrapment is not a substantive defence under Australian common law, consistent with the High Court's position in Ridgeway v The Queen.
  • Where an applicant alleges that evidence was destroyed or suppressed, some material basis for that allegation must be placed before the court; bare assertion is insufficient to impugn a guilty plea.
  • For an entrapment argument to have any foothold, an applicant would need to establish that the alleged scheme was actually carried out and that all relevant parties to the "set up" had the necessary knowledge, including awareness of the victim's age. No such evidence existed here.
  • In dismissing the appeal, the Court applied the well-established principle that the strength of a guilty plea's integrity depends on the circumstances surrounding its entry, not on unsubstantiated post-conviction allegations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 317
- Criminal Procedure Act 1986 (NSW), s 306C

Cases:
- Kioa v West (1985) 159 CLR 550
- Maxwell v The Queen (1996) 184 CLR 501
- Meissner v The Queen (1995) 184 CLR 132
- R v Chiron [1980] 1 NSWLR 218
- R v Cincotta (NSW Court of Criminal Appeal, 1 November 1996, unreported)
- R v Davies (1993) 19 MVR 481
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380
- Ridgeway v The Queen (1995) 184 CLR 19
- Sabapathy v R [2008] NSWCCA 82