Sentence Quashed After Lawyer Enters Guilty Pleas on Behalf of Client Without Instructions

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By Paul Gregoire and Ugur Nedim

Central Coast man Paul Stuart had consumed half a bottle of rum on a friend’s boat on the evening of 20 February 2020, when he called a friend to pick him up. The woman arrived at around 9.30 pm and took Stuart to his Brisbane Water home, where the pair commenced watching a movie.

Stuart then began playing with a loaded firearm, however, which he accidentally discharged into the floor. Having become frightened, the woman attempted to leave, and Stuart assaulted her. She screamed in response, which triggered a neighbour to call police, while the woman fled.

NSW police officers arrived on the scene treating the incident as a siege. Senior constable Brett Ransley later stated that he saw Stuart on his balcony, screaming, throwing objects off it, and holding a gun, which he had pointed in the direction of a nearby school.

Ransley alleged that he heard the firearm discharge, whist it continued to be pointed at the school, which was immediately followed by the sound of breaking glass. And whilst no more shots were fired, the officer claims the offender continued to point the gun in the school’s direction.

More police officers arrived at the block of flats on Melbourne Street. Negotiators were employed to talk Stuart around. And he was eventually taken into custody in the early hours of the 21st after a three-hour stand off.

Stuart was initially charged with five offences that day. But a charge sheet of the same date, lists ten charges laid against him.

Disputed pleas

Stuart’s lawyer James Maspero and NSW Director of Public Prosecution (DPP) senior solicitor Dickinson indicated to NSW Local Court Magistrate Alexander Mijovich on 18 September 2020, that the defendant would be pleading guilty to eight final charges pressed.

This is despite Stuart, who was remanded in Sydney’s Long Bay Gaol, having indicated to Maspero that he did not want to plead guilty to two of the remaining charges.

The first charge that the defendant denies guilt in relation to was discharging a firearm at a building with disregard for safety, contrary to section 93G of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 14 years imprisonment.

The second count in question was that of using an offensive weapon to resist lawful detention, contrary to section 33B of the Crimes Act. An individual found guilty of this offence is liable to up to 12 years inside.

Sentencing took place on 5 February last year. And NSW District Court Judge Tanya Bright determined to send Stuart away for 8 years and 6 months, with non-parole set at 5 years and 8 months.

Appealed lawyer conduct

Stuart went on to appeal his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 12 August this year, claiming that a miscarriage of justice had occurred in respect to his solicitor having entered pleas of guilty relating to two charges of which he did not agree to plead guilty to.

In his affidavit, Stuart said he obtained his lawyer through his brother. The client first met his solicitor at Silverwater Correctional Centre on 23 March 2020, and he told the legal professional that he didn’t agree to having shot at the “school or hindering arrest with a weapon”.

The NSWCCA heard that detective senior constable Andrew Jeffrey emailed the office of the DPP (ODPP) on 21 April 2020, advising that Maspero had told him that his client would be pleading guilty to all charges against him.

And two subsequent emails from Maspero sent to the same office in June and July reiterated this.

“Maspero was acting without any instructions in communicating to the prosecution on these three occasions that the applicant would be pleading guilty,” said NSWCCA Justice Jeremy Kirk, adding that “even if he had had those instructions”, this undermined any ability to negotiate with the ODPP.

“This extraordinary conduct suggests that Mr Maspero had reached an early and clear view as to how the case should be conducted, and one which paid little regard to the applicant’s views.”

On 10 July 2020, when Stuart was summoned to appear before the Gosford Local Court, Maspero did not attend. But his client told the room that he had a “contention” with one of the charges, at which point Magistrate Peter Barnett warned him “admissions” could be used against him.

A subsequent 27 July briefing letter Maspero sent to Stuart asked his client whether he intended to plead guilty to all charges, indicating that no such instructions had previously been sought, despite the lawyer having already indicated guilty pleas were forthcoming on three occasions.

Further evidence before the NSWCCA related to a 24 August meeting to discuss court facts, where Stuart claims he continued to dispute charges, but Maspero has him agreeing to all of them, while a recent letter to the ODPP had the lawyer stating he couldn’t remember any issues regarding charges.

Indeed, under cross-examination, the lawyer agreed he never obtained written instructions or confirmation that his client would plead guilty to all charges, and nor did he obtain a signed and agreed to statement of facts from his client.

And at the 18 September committal hearing, neither Stuart nor Maspero entered guilty pleas, but rather the latter indicated this would be happening, while the prosecution stated the defendant had enter guilty pleas to all charges, including the disputed ones, and the magistrate accepted this.

The determination

Justice Kirk outlined that the defendant and his lawyer have presented conflicting evidence, in which Stuart says he did not give instructions to plead guilty, while Maspero says he did. And while a court would usually hesitate at not believing a legal practitioner, this was “not an ordinary case”.

The NSWCCA justice added that the court was not impressed by the way Maspero handled himself during the proceedings, as he was often reluctant to thoroughly answer inquires, and had presented a “thin” medical excuse as to why he had to appear in court via video link.

In terms of whether the lawyer had indicated to the prosecution that his client would be pleading guilty prior to his having sought any instructions, his Honour found this was “plausible”.

The justice noted that Stuart claims that there was a level of vagueness about the police account that he had fired the gun in the direction of the school, and that the offender asserts that there was no evidence that he’d pointed the weapon at police.

His Honour also found in his 26 August final findings that “even allowing for the exceptional nature of this case, requiring a public acknowledgement by the accused person both reflects the solemnity of what is occurring and may assist to avoid later claims that the plea was not properly entered”.

Justice Kirk pointed out that both the disputed charges are triable offences and, therefore, as the appeal had been made out, the original sentence had to be quashed and the case remitted to the lower court for retrial.

In terms of bail, Stuart would have to raise the matter with the NSW District Court, while in relation to lawyer Maspero, his Honour recommended that the relevant authorities determine whether any course of action is needed.

Their Honours NSWCCA Justices Richard Button and Hament Dhanji agreed with their colleague’s orders.

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