AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 26 August 2022

Stuart v R

[2022] NSWCCA 182

Assault & violenceFirearms & weapons

Citation: Stuart v R [2022] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judges: Kirk JA, Button J, Dhanji J

Background

The applicant faced a series of charges arising from an incident involving an assault and the discharge of a firearm. He engaged a solicitor to act on his behalf in relation to those charges. Two of the charges (the "disputed charges") related to using an offensive weapon to prevent lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW), and firing a firearm at a dwelling with reckless disregard for the safety of others, contrary to s 93GA(1).

The applicant's solicitor entered guilty pleas on his behalf at the committal stage in the Local Court, and the applicant was subsequently committed to the District Court for sentence. At no point in either court was the applicant personally asked to confirm his pleas, and the charges were never read out to him before sentencing commenced. During sentencing, the applicant interrupted the judge's remarks on two occasions to raise concerns, and one point raised was inconsistent with maintaining a guilty plea on one of the disputed charges.

The applicant sought leave to appeal, arguing that he had never instructed his solicitor to plead guilty to the two disputed charges and that a miscarriage of justice had therefore occurred. He did not challenge the guilty pleas entered on the remaining charges.

  • Whether the applicant gave instructions to his solicitor to plead guilty to the two disputed charges
  • Whether the guilty pleas on those charges constituted a true admission of guilt, or whether circumstances affected the integrity of those pleas
  • Whether there were triable issues on the disputed charges that warranted allowing the matter to proceed to trial
  • What role the procedural failure to read charges to the accused or to seek personal confirmation of pleas played in the miscarriage of justice

Decision

The Court found the applicant's evidence that he did not instruct his solicitor to plead guilty to be credible and consistent with the surrounding circumstances. The solicitor had indicated on three separate occasions before 24 August 2020 that the applicant would plead guilty, yet gave evidence that he had not received such instructions until that date and could not explain the earlier representations. No written record of guilty plea instructions was produced.

The Court applied the principles from Maxwell v The Queen (1996) 184 CLR 501 and Sagiv v R (1986) 22 A Crim R 73, finding that this was a case where the pleas were not true admissions of guilt and where a mistake or other circumstance had affected the integrity of those pleas as admissions. A miscarriage of justice was accordingly established.

The Court also found that both disputed charges raised triable issues. On the weapons charge, there was a question as to whether the evidence established the required intent; on the firearms charge, there was, on the materials before the Court, no evidence that the applicant pointed the firearm at police as alleged, and evidence of intoxication was potentially relevant to specific intent.

While the applicant did not argue that the procedural failures themselves constituted the miscarriage of justice, the Court observed that the absence of any personal confirmation of pleas, and the failure to read the charges to the applicant in either court, "undoubtedly played some role in what occurred." The Court approved earlier authority requiring that accused persons be personally asked to confirm their pleas, noting that this practice reflects the solemnity of the occasion and may help prevent later disputes about whether a plea was properly entered.

Orders Made

  • Leave to appeal granted
  • Convictions on sequences 4 and 9 (the two disputed charges) quashed
  • Those sequences listed for arraignment in the District Court on 1 September 2022
  • Aggregate sentence imposed in the District Court on 5 February 2021 quashed
  • Proceedings remitted to the District Court for the applicant to be resentenced on sequences 2, 3, 6 and 7

Key Takeaways

  • A guilty plea entered by a solicitor contrary to the client's actual instructions can constitute a miscarriage of justice warranting the quashing of any resulting conviction, where the plea is not a true admission of guilt and circumstances affect its integrity as such.
  • Under the relevant statutory scheme, the model oral explanation required by reg 9A of the Criminal Procedure Regulation 2017 (NSW) contemplates that a magistrate will ask an accused person whether they plead guilty or not guilty to each offence, which in practice requires the identification of each charge.
  • Requiring an accused person to publicly acknowledge their guilty plea in court reflects the solemnity of that admission and serves to guard against later disputes about whether the plea was properly entered, as the Court of Criminal Appeal confirmed by approving R v Paauwe [1971] 2 NSWLR 235 and R v Duffield (1992) 28 NSWLR 638.
  • Where two charges in a set of proceedings are quashed and those charges formed part of an aggregate sentence together with other charges, the aggregate sentence necessarily falls and the matter must be remitted for resentencing on the remaining charges.
  • No written record of guilty plea instructions, combined with a pattern of representations to police and the prosecution inconsistent with the solicitor's own evidence about when instructions were received, can undermine the reliability of the solicitor's account and support the accused's contrary evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a) and 93GA(1)
- Criminal Procedure Act 1986 (NSW), ss 55, 59, 70, 72, 74, 75, 94, 95, 97, 102
- Criminal Procedure Regulation 2017 (NSW), regs 9A and 9B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D

Cases
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Sagiv v R (1986) 22 A Crim R 73
- R v Paauwe [1971] 2 NSWLR 235
- R v Duffield (1992) 28 NSWLR 638
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- R v Thalari (2009) NSWLR 307; [2009] NSWCCA 170
- R v Van (2002) 129 A Crim R 229; [2002] NSWCCA 148
- Ming Yuk (Raymond) Wong v Director of Public Prosecutions (2005) 155 A Crim R 37; [2005] NSWSC 129
- Amagwula v R [2019] NSWCCA 156
- Bobbe v R (No 2) [2021] NSWCCA 150
- Ke v R [2021] NSWCCA 177
- Layt v R [2020] NSWCCA 231
- Rotner v R [2011] NSWCCA 207