R v Gerhardt

The applicant pleaded guilty to aggravated possession of methylamphetamine and was sentenced upon a schedule of agreed facts. A week later he was asked to give evidence in the trial of one of his co-accused. He was warned that any evidence which was inconsistent with the schedule of agreed facts might expose him to resentencing. In the course of his evidence he sought to claim privilege against self-incrimination, but was made to answer the question put to him and in doing so gave evidence that was inconsistent with the schedule of agreed facts relied upon during his sentence. The prosecution in turn successfully applied to have the applicant’s sentence reopened, and a higher sentence was imposed. On appeal, the Court of Appeal (Fraser JA and Henry and Brown JJ) found that the applicant had been wrongly denied his right not to answer, and that there was no admissible evidence to support the application to reopen.

Fraser JA and Henry and Brown JJ

6 December 2019

Background

The applicant pleaded guilty to aggravated possession of methylamphetamine on the basis of a schedule of agreed facts and was sentenced to three years imprisonment with parole fixed after serving 11 months. [1], [11]–[17]. The schedule relevantly provided that when police located the drug which founded the charge in a car with the applicant and two other men, the applicant had falsely claimed that the drug was his alone, and that he had stolen it without the knowledge of the other men. [11]. Police ultimately charged all three men with possession of the drug in a quantity exceeding two grams. [8]–[9]. After the applicant was sentenced, he was called to give evidence at a pre-trial hearing in relation to one of his two co-accused. [18].

In the course of his evidence, the applicant was warned that evidence which was inconsistent with the schedule of agreed facts relied upon at his own sentence might expose him to resentence, and the proceeding was adjourned to allow him to get legal advice. [19]–[21]. After the adjournment, the prosecution asked the applicant to confirm that when police found the drug he had falsely claimed that it belonged only to him and that his co-accused had no knowledge of it. [22]. When the applicant claimed privilege against self-incrimination, the prosecution submitted that the right was not available because the applicant had already been sentenced on the facts put to him, and the applicant was later made to answer the question. [22], [25]–[27].

The applicant testified that the drug which police found in the car belonged to him alone, and that his co-accused had not known that it was in the vehicle. [26]–[27]. The prosecution subsequently discontinued the charge against one of the co-accused and applied to reopen the applicant’s sentence pursuant to s 188(1)(c) Penalties and Sentences Act 1992. [28]–[29]. The sentencing judge found that there had been a clear error of substance that justified reopening the sentence, and imposed a sentence of three years and nine months imprisonment, with parole eligibility after serving approximately one-third of the head sentence. [32]–[35]. The applicant sought leave to appeal to the Court of Appeal on the ground that the reopening of the sentence under s 188(1)(c) Penalties and Sentences Act 1992 had miscarried. [5].

Whether the reopening miscarried

Admissibility of evidence

The Court of Appeal (Fraser JA and Henry and Brown JJ) explained that the question of whether the applicant’s right to claim privilege during the pre-trial hearing was exhausted depended upon whether there persisted a real risk of him being placed in additional or increased jeopardy. [39]. In that regard, the Court reasoned that the fact that the prosecution and judge had considered that the applicant might be resentenced if his evidence was inconsistent with the schedule of agreed facts relied upon in his own sentencing amply demonstrated he was in jeopardy of increased criminal sanction. [40].

While there had been no objection to the use of the applicant’s pre-trial evidence in the application to reopen his sentence, the Court could not conceive of any forensic reason for the failure to make that objection. [42]. The Court considered that the applicant’s claim of privilege was properly made, and that the evidence given after he was wrongly deprived of his right not to answer was inadmissible against him. [42]–[44]. In those circumstances, there was no evidence capable of supporting the reopening. [45].

No clear factual error of substance

The Court went on to highlight that the perception that there had been a factual error in imposing the applicant’s sentence appeared to derive from the prosecution’s misconception of the status afforded to the schedule of agreed facts. [47]. After discussing the origin and purpose of a schedule of facts, the Court observed that a schedule does not become conventional evidence because it is written down or received as an exhibit, and is not akin to a witness statement or affidavit merely because a defendant agrees to or does not challenge it. [48]–[55].

The Court underscored that when a court is informed of factual allegations upon which parties agree at sentence, the ordinary inference is that the agreement was made for the purpose of determining the sentence to be imposed. [56]. The applicant was entitled to agree to the factual basis being advanced for sentence, and in the circumstances his agreement to a set of facts being asserted for the purpose of his sentence did not bind him to testify to the truth of those facts if subsequently called as a witness. [58].

The Court concluded that where the applicant had given one factual account to police before being sentenced upon another, and had later reasserted his original account, it was objectively difficult to ascertain where the truth lay, and as such there was no “clear” factual error. [63]. Similarly, and in circumstances where there had been no explanation as to why the applicant should receive a greater or lesser sentence dependent upon the number of his fellow travellers, the Court did not consider that the error in question was one of “substance”. [66]–[70].

Disposition

In the result, Fraser JA and Henry and Brown JJ granted the application and allowed the appeal, quashed the decision to reopen the sentence and ordered that it not be reopened, and confirmed the original sentence. [6].

B McNamara