R v Carey[2021] QSCPR 24

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Nicholas Blaine Carey, is charged on indictment with trafficking in dangerous drugs whilst a participant of a “serious criminal organisation”.^[1] The aggravating feature of being a participant in a serious criminal organisation would, if convicted, result in a mandatory 7-year-term of imprisonment being imposed cumulatively on the usual sentence for the trafficking charge.^[2]
2. [2]
   Mr Carey brings an application, under s 590AA(2)(e) of the Criminal Code 1899, to have evidence of Mr Carey’s “confession” excluded from trial.
3. [3]
   The form of the confession is unusual, insofar as it is comprised of a Magistrates’ Court document titled “Acknowledgment of Plea” (“the document”).^[3] The document is one of the several^[4] required to be prepared and filed under Division 7A of the Justices Act 1886 (Qld),^[5] which provides the framework for a Registry Committal and is not, of itself, conclusive of guilt nor considered a plea of guilty, per se.^[6] There is nothing in the Justices Act 1866 which explicitly provides for or prohibits the admission of such documentation in a trial of the accused as evidence of a confession. The usual course is that an accused’s “plea of guilty in the court below may be used as evidence against him”.^[7]
4. [4]
   The document lays out the charges against Mr Carey, including the criminal organisation aggravation, and indicates that the defendant pleads “guilty” to the offences and it is signed by Mr Carey. Mr Carey now seeks to take the matter to trial as he contests the circumstance of aggravation attached to the trafficking. At trial the Crown seek to have the document led as “confession” evidence against Mr Carey. This application seeks to exclude the document from evidence at trial.
5. [5]
   Mr Peters, solicitor for Mr Carey, deposes that Mr Carey had always instructed that he would plead guilty to the trafficking charge, but would contest the circumstance of aggravation. Upon Mr Peters’ instructions, a clerk at his law firm actioned the documentation necessary to have the matter proceed by registry committal and, in error, his clerk included the circumstances of aggravation on the relevant forms.^[8]
6. [6]
   The matter then was committed to the Supreme Court for sentence and an indictment was presented. It was not until Mr Carey indicated that he wished to proceed to trial upon the circumstance of aggravation, and the Crown raised that they would seek to have the document admitted, that Mr Peters became aware of his error.
7. [7]
   Mr Peters gave evidence and was cross-examined upon his affidavit. I accept Mr Peters’ evidence that the error in the drafting the document was his error and contrary to his client’s instructions. Mr Peters swore that the usual practice in his firm was to have a junior solicitor or clerk prepare the documents. I accept Mr Peters’ oral evidence that he relied upon his employed solicitor or clerk to prepare the documentation. Mr Peters conceded, and I accept, that he did not carefully consider the documents before either sending the documents to Mr Carey to be signed or prior to signing them and filing them with the Court.  
8. [8]
   Mr Carey gave evidence that he also did not carefully consider the documentation sent to him to be signed. Mr Carey swore that he got “legal mail” and, after a cursory look, signed and returned it. I accept Mr Carey’s evidence of his reliance on his solicitor to draft paperwork in accordance with his instructions and that Mr Carey did not scrutinise the document.
9. [9]
   There is no contest before me as to the provenance of those documents, nor some argument that they were not in fact signed or sighted by the defendant. It is uncontroversial that Mr Carey signed the document and that it contained a confession which, ordinarily, would be admissible.^[9] This application is grounded in whether it would be unfair to allow the “Acknowledgment of Plea” document into trial. Section 130 of the Evidence Act 1977 (Qld) provides:

“130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

10. [10]
    It is clear from s 130 that it “preserves” the recognised common law bases for discretionary exclusions.^[10] As such, I am left with what is known colloquially as the Christie discretion. The Christie discretion allows a trial judge to exclude admissible evidence where its probative value is outweighed by its prejudicial effect.^[11]
11. [11]
    In this sense, prejudicial does not simply mean damaging to the defence, as Dowsett J said in R v Morris:^[12]

“…There is a common misunderstanding of the term ‘prejudicial effect’ in this context. Inculpatory evidence is always prejudicial to an accused person’s case, using the word ‘prejudicial’ in a broad sense to mean ‘damaging’. … It is not damage to the defence case which is relevant, but damage to the prospects of a fair trial.”

12. [12]
    Lord Salmon said in R v Sang [1980] AC 402 at 444 to 445:

“I consider that it is a clear principle of the law that a trial judge has the power and the duty to ensure that the accused has a fair trial. Accordingly, amongst other things, he has a discretion to exclude legally admissible evidence if justice so requires: see Lord Reid's speech in Myers v. Director of Public Prosecutions [1965] A.C. 1001, 1024.”

13. [13]
    Regarding the probative strength of evidence, McHugh J said in Festa v The Queen:^[13]

“51 But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”

14. [14]
    The shorthand phrase “more prejudicial than probative” is apt to mislead, as Thomas J said in R v Hasler; ex parte Attorney-General:^[14]

“It is desirable that I attempt to summarise the conclusions I have reached from reviewing the relevant authorities on this question.

1. (a)
   The exercise of the discretion is not a simple balancing function in which the judge decides whether the overall effect of the evidence is more prejudicial to the accused than it is beneficial to the Crown case. Sometimes the discretion is elliptically described in headnotes and elsewhere as a ‘discretion to exclude where prejudicial value outweighs probative value’. Such abbreviations should not be permitted to modify or distort the true test, and should be recognised as mere shorthand references to it.

2. (b)
   Exclusion should occur only when the evidence in question is of relatively slight probative value and the predjudicial [sic] effect of its admission would be substantial. Without dissenting from any of the five formulations quoted above, it is apparent that those stated by Barwick C.J. and by Stephen and Aickin JJ. in Bunning v. Cross (supra) give proper recognition to these factors and that they may safely be used as concise working statements of the principle.

3. (c)
   In performing the balancing exercise, the only evidence that should be thrown into the ‘prejudice’ scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The ‘prejudice’ cannot refer to the damage to the accused’s case through direct proof of the offence. To speak of a ‘balancing’ of prejudicial effect against probative value of such evidence is absurd, because the weight of each will be exactly the same. If prejudice arising from strict proof of the case were to go into the ‘prejudice’ scale, then the additional prejudicial effect would always tip the scales and the evidence would never be admissible.”

15. [15]
    Unlike some other states,^[15] there is nothing in the Justice Act 1886 which explicitly provides for the admission or prohibits the admission of the forms required for registry committal, as proof of a confession. The Applicant urges upon me that the proper construction of this application is to view it similarly to an application to vacate a guilty plea. The Applicant submits that “considerations relevant to an application to vacate a guilty plea will naturally be relevant to determining whether evidence of the confession should be admitted at trial. This is because the reasons and circumstances surrounding the application to vacate a guilty plea will often impact the probative value of the confession.”
16. [16]
    The Applicant then directs me towards several cases^[16] regarding the setting aside of a plea of guilty. However, in my view it is not helpful to couch this application in those terms as this is not an application to set aside a guilty plea; this is an application to exclude evidence from a trial, the evidence being a prima facie admissible confession by the defendant.
17. [17]
    The construction urged upon me by the prosecution is that the application “is not an application to vacate a plea of guilty already entered. The principles applicable to that exercise have no work to do in the present one. Pleas of guilty have a direct legal effect; incriminating evidence does not.” This, in my view, is the correct approach.
18. [18]
    The Crown then points to the case of R v Hasler^[17] in support of its contention that the evidence is highly probative and ought to be admitted at trial.
19. [19]
    In reference to Hasler, the prosecution submits “Applying that formulation, there is no occasion here for the discretionary exclusion of highly probative evidence on the basis of prejudice, let alone prejudice said to be generated because the evidence itself has no probative value at all.”
20. [20]
    The prosecutor further urges upon me that this signed confession of guilt is relevant in a high order given its content, reliability, the fact that it was reduced to writing and followed an opportunity for legal advice about it. Whilst that may be true in most cases, in my view, that is putting it a little too strongly in the present case.
21. [21]
    The document is clearly a pro forma document produced under Magistrates Court Practice Direction 14 of 2010, which is not in the same nature as a compelling oral or written confession referring to the facts of the offending.
22. [22]
    As to the opportunity for Mr Carey to obtain legal advice about the document, the uncontroverted evidence on this application is that Mr Carey did obtain legal advice and had always instructed his solicitor that he would not plead guilty to the circumstance of aggravation. Having received legal advice prior to being provided the document, I accept Mr Carey’s evidence that he signed the document without reading it fully and carefully and returned it as he was directed.
23. [23]
    It is apropos to mention that Mr Carey was in custody on these offences, held in the Maryborough Correctional Centre and that has been difficult for Mr Peters to conference with Mr Carey and so documents which require signing by Mr Carey are simply mailed to the prison, as opposed to what might be the usual procedure, where the client is conferenced and taken through the documents.
24. [24]
    As a plea of guilty amounts to an admission of all of the elements of an offence charged against an accused, a plea of guilty ordinarily carries great weight,^[18] amounts to potent evidence,^[19] and is considered “highly damning”.^[20] Therefore, usually, a plea of guilty has high probative value and will not be excluded. That was the result in R v D’Orta-Ekenaike,^[21] however, in R v D’Orta-Ekenaike the appeal was allowed as the primary judge had failed to instruct the jury that “before they could use the evidence of the guilty plea as conclusive evidence of the applicant’s guilt, they had to be satisfied beyond reasonable doubt that such plea was, and was intended to be, a true acknowledgement of the applicant’s guilt of the crime charged; and that if, having regard to the evidence, they concluded that it was possible that it entered the plea not because of a belief in his guilt but because he believed he would receive a suspended or more lenient sentence, then they should disregard the plea of guilty from their consideration.”^[22]
25. [25]
    In the present application, the prosecutor urges upon me that a similar course ought to be taken. That is, the evidence of the acknowledgment of the plea ought to be admitted as it is highly probative and that any potential prejudice can be ameliorated by an appropriate direction.
26. [26]
    In my view, the probative value however of any plea must be gauged by the circumstances surrounding the entry of the plea of guilty. In R v D’Orta-Ekenaike, the plea was entered before a Magistrate, and in circumstances where D’Orta-Ekenaike was represented by a solicitor and counsel experienced in criminal matters. Furthermore, and importantly, prior to being called upon to plea, the presiding Magistrate cautioned D’Orta-Ekenaike in the manner prescribed by the relevant Victorian regulations at the time. That is, a warning to the defendant that if he pleaded guilty to the charge, that may be taken into account.
27. [27]
    In the present case, the “Acknowledgment of Plea” document is simply a pro forma document, where the charges are copied from the Bench Charge Sheet. There is a declaration on the first page stating the accused pleads guilty to the following offences (the offences copied from the Bench Charge Sheet) and a declaration on the final page acknowledging that there is no inducement offered for the guilty plea.^[23] 
28. [28]
    In the present case, at the time the document (Exhibit BP3) was signed, the applicant was not represented by experienced counsel, he was represented by a solicitor who had 10 years’ experience who frankly conceded he made a mistake in including the circumstance of aggravation in the form. Importantly, the applicant did not receive any caution from any judicial officer as to the use of his acknowledgment of plea prior to signing it. In the present case, the uncontradicted evidence from both the Mr Carey and Mr Peters is that their signing of the acknowledgement of plea was made in error. The intention of the Mr Carey had always been to plead guilty to trafficking, but not to the circumstances of aggravation. In my view, the acknowledgement of plea document, singed in these circumstances, is of minimal probative value.
29. [29]
    As to prejudice, the risk that the document would be wrongly used by the jury to create prejudice or unfairness in the trial against Mr Carey is, in my view, quite high. The document has the potentiality to be misused by the jury and perhaps lead to a conviction which ought not be entertained.
30. [30]
    If the document was admitted then, absent Mr Peters’ explanation and Mr Carey’s evidence as to mistake, it is highly prejudicial as it may be considered by the jury as highly probative (as the Crown submits). In order, therefore, to guard against this inference being drawn by the jury, Mr Peters may need to give evidence, which may result in a loss of privilege and Mr Carey would need to give evidence, resulting in the loss of his right to silence. Either outcome causes substantial prejudice and unfairness to Mr Carey’s right to a fair trial and is founded on a mistake.
31. [31]
    I conclude that the documents, Exhibit BP3 to the affidavit of Bruce James Peters filed 11 November 2021 is highly prejudicial and carries little probative weight and I order that they be excluded from the trial of Mr Carey.