Citation: R v Lakalaka [2004] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 4 June 2004
Judge(s): Hulme J, Bell J, Hislop J
Background
The applicant had been indicted on multiple charges in the District Court. He pleaded guilty to two of those charges, with the understanding that the remaining charges would not be pursued by the Crown. He subsequently sought leave from the Court of Criminal Appeal to withdraw those guilty pleas, contending that they were not free, voluntary, or entered pursuant to a genuine consciousness of guilt.
The Crown initially indicated its consent to the withdrawal application at several stages, including in the District Court and before the Registrar of the Court of Criminal Appeal. However, the Crown later shifted its position, filing submissions asserting that the question of whether the pleas could be withdrawn was ultimately a matter for the Court to determine. The Crown then applied to have subpoenas issued to the applicant's former legal advisers, requiring them to attend the substantive hearing and to produce documents relating to their instructions.
The applicant opposed the Crown's application for the subpoenas on three grounds: that the Crown should not be permitted to change its position, that there was no jurisdiction to issue subpoenas to compel the former legal advisers to give evidence, and that the proposed subpoenas to produce documents were oppressive in their scope.
Legal Issues
- Whether the Crown should be prevented from changing its position from consent to active scrutiny of the withdrawal application (the "approbate and reprobate" argument)
- Whether the Court of Criminal Appeal had power under section 12(1)(b) of the Criminal Appeal Act to subpoena the applicant's former legal advisers to attend and give evidence
- Whether the subpoenas to produce documents (subpoenas duces tecum) were oppressive in their terms
Decision
On the first ground, Hulme J rejected the argument that the Crown was impermissibly approbating and reprobating. The principle of estoppel does not apply in criminal proceedings, and the applicant's counsel was unable to identify any concrete benefit gained by the Crown or prejudice suffered by the applicant as a result of the Crown's earlier position of consent. Hulme J also observed that the ultimate decision on whether to permit withdrawal of the pleas was always one for the Court, not the Crown, so the change in stance did not operate unfairly. Bell J preferred not to express a concluded view on this ground but agreed it was not so obviously correct as to deny the Crown the opportunity to test the applicant's assertions.
On the second ground, Hulme J rejected the submission that the former legal advisers fell outside the reach of section 12(1)(b). The section authorises the Court to order "any persons who would have been compellable witnesses at the trial" to attend and be examined. The applicant's legal advisers were compellable witnesses at the trial in the ordinary sense, even if, as a practical matter, they would rarely have held relevant non-privileged evidence. That did not render them non-compellable witnesses for the purposes of the statutory provision.
On the third ground, Hulme J declined to narrow the subpoenas at this stage. The applicant's substantive case turned on conversations with legal advisers in the period leading up to the pleas, and a broad range of the file material could bear on the credibility of those accounts. Two minor amendments to the form of the subpoenas were indicated to remove a potential ambiguity about whether the incest charges referred to were separate from, or included within, the identified District Court matter.
Orders Made
- Subpoenas issued to Mr Peter Mitchell Paish in the form initialled by Hulme J and dated 4 June 2004 (both a subpoena to attend and a subpoena to produce documents)
- Subpoenas issued to Mr Hussein Abou-Ghaida in the same forms, initialled by Hulme J and dated 4 June 2004
Key Takeaways
- Under section 12(1)(b) of the Criminal Appeal Act, the Court of Criminal Appeal may compel former legal advisers to attend and give evidence, provided they would have been compellable witnesses at the original trial. The fact that they would seldom hold relevant non-privileged material does not affect their compellable status.
- Subpoenas duces tecum requiring production of a legal file are authorised under section 12(1)(a), as agreed by both parties in this proceeding.
- The principle of estoppel does not apply in criminal proceedings, and a change of position by the Crown from consent to active scrutiny does not, without identifiable prejudice to the applicant or benefit to the Crown, constitute an abuse of process.
- Where an applicant's case for withdrawing a plea rests on contested conversations with former legal advisers, the Court may permit broad document production from the relevant file, leaving questions of specific relevance to be resolved at the substantive hearing.
- In applications to set aside guilty pleas, the Court of Criminal Appeal has consistently recognised that it may need to adjourn to gather evidence not on the trial record, reinforcing the practical importance of the section 12 powers.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), section 12(1)(a), (b) and (c)
Cases:
- The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (cited in the context of the "in relation to" formulation in subpoenas duces tecum)