Citation: Regina v Sewell [1999] NSWCCA 307
Court: New South Wales Court of Criminal Appeal
Date: 27 September 1999
Judge(s): Grove J, Sully J, Greg James J
Background
The applicant had pleaded guilty in the Parramatta District Court to 20 charges under section 300(2) of the Crimes Act 1900, each alleging that he used a false instrument (a cheque) with the intention of inducing another person to accept it as genuine, to that person's prejudice. Following his pleas, Judge Karpin formally convicted him on all 20 counts and imposed sentences that included a substantial period of full-time custody for a significant number of the charges.
The applicant subsequently sought to go behind his guilty pleas, arguing that the plea and sentencing process had resulted in a miscarriage of justice. His central contention was that he had been deprived of the opportunity to put before a jury a substantive defence that was available to him as a matter of law.
Legal Issues
- Whether the applicant was entitled, as a matter of law, to raise a "claim of right" defence to charges under section 300(2) of the Crimes Act 1900, that is, an honest belief in entitlement to act as he did, even if that belief was held unreasonably by an objective standard
- Whether, given the availability of that defence, allowing the guilty pleas and resulting convictions to stand would amount to a miscarriage of justice
- Whether the convictions and sentences should be quashed and a new trial ordered
Decision
The Crown conceded that a claim-of-right defence was legally available to the applicant in answer to all 20 charges. The Crown further accepted that, on that basis, a properly directed jury might reasonably find it at least possible that the applicant honestly believed he was entitled to act as he did. Sully J accepted those concessions as correctly made.
On that footing, the Court held that the applicant had been deprived of a potentially substantive defence, and that this constituted a miscarriage of justice. The appropriate remedy was to allow him to put that defence to a jury by way of a retrial on each charge.
Sully J emphasised, however, that the orders made in this case were driven by the particular concessions of Crown counsel and should not be treated as a general precedent. The implication is that an applicant in comparable circumstances who does not attract equivalent Crown concessions cannot assume that the same outcome would follow.
The Court also noted, in passing, that the charges as framed were sparse in particulars, especially regarding the identity of the persons said to have been induced, and observed that those dealing with the matter on retrial might wish to frame the charges more precisely.
Orders Made
- Leave granted to the applicant to appeal against each of his convictions
- Convictions on all 20 charges quashed
- Orders made for a new trial in relation to each of the 20 charges
- Sentences consequent upon conviction quashed
Key Takeaways
- A claim-of-right defence, based on an honest (even if objectively unreasonable) belief in entitlement, was held to be legally available as a matter of law in answer to charges under section 300(2) of the Crimes Act 1900 relating to use of a false instrument.
- Where a guilty plea deprives an accused of the opportunity to raise a substantive defence that is available at law, and the Crown concedes the point, the resulting convictions may constitute a miscarriage of justice warranting their quashing.
- The Court of Criminal Appeal stressed that its orders were confined to the circumstances of this case, particularly the Crown's concessions, and expressly cautioned against treating the decision as a straightforward precedent for other applicants seeking to go behind guilty pleas.
- Sully J observed that charges framed closely on the statutory language of section 300(2), without meaningful particulars identifying the allegedly deceived party, may warrant more precise formulation on retrial.
- Upholding the sentences in these circumstances would have been incompatible with the principle that an accused is entitled to have a viable defence tested by a jury; once the convictions fell, the associated sentences were also quashed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 300(2) (use of a false instrument)
Cases cited: No cases were cited in the judgment as provided.