DPP v Jamieson

3 Thereafter, he terminated the services of his lawyers. Through his new lawyers, he applied to change his plea to charge 1 to not guilty.

4 On 11 July 2016, I dismissed his application for leave to change that plea. I said I would publish reasons in due course; these are those reasons.

5 At directions hearings in this court on 20 July and 3 August 2015, Mr Jamieson's then counsel, Phillip Dunn QC, informed the court that Mr Jamieson would be pleading guilty to charges 2 and 3, and only contesting charge 1. As the offences took place in Wedderburn, the matter was fixed for trial on 30 March 2016, at the next Bendigo circuit.

6 The prosecution opening, which was filed on 17 February 2016, proceeded on the understanding that charge 1 would be the only contested charge.

7 On 20 February 2016, Mr Jamieson's then solicitors, Garde-Wilson Lawyers, filed a notice of ceasing to act. A few days later, Emma Turnbull Lawyers Pty Ltd advised that they had received instructions to act, and were attempting to obtain VLA funding.

8 At a mention on 1 March, Mr Jamieson's new solicitor first raised the possibility that Mr Jamieson might be contesting all three charges. He said that once VLA funding had been finalised, he wanted to obtain a neuropsychological report, before a final decision was made about the conduct of the defence.

9 On 3 March, the court was informed that VLA funding had been approved, subject to the court approving the provision of a charge over restrained property. The trial date was varied from Wednesday 30 March to Monday 4 April, to allow Mr Jamieson's new lawyers additional time to prepare.

10 At a further mention on 16 March, the court was informed that it was still not clear what Mr Jamieson would be pleading to charges 2 and 3. That decision would depend on the result of a neuropsychological report, which the defence were in the process of obtaining. It was said that the report would address the possibility of a mental impairment defence, not the question of whether Mr Jamieson's actions were conscious, voluntary and deliberate.

11 After receiving (but not filing or serving) the report of a neuropsychologist, Associate Professor Warrick Brewer, the defence filed a response on 31 March. That document said that Mr Jamieson would only be contesting charge 1, on the basis of lack of murderous intention and self-defence. No issue of mental impairment or automatism was raised in relation to any of the charges.

12 A final directions hearing was held in Melbourne on Friday 1 April. Senior defence counsel, John Lavery, informed the court that he had received a last minute change of instructions from Mr Jamieson, who now wanted to plead not guilty to all three charges. Asked what was the basis of any defence to charges 2 and 3, Mr Lavery advised that it was "some type of automatism defence", but said he was not in a position to elaborate. Upon arraignment, Mr Jamieson pleaded not guilty to all three charges.

13 Later that morning, after his lawyers had conferred with Mr Jamieson, the court and the prosecution were advised that Mr Jamieson would be reverting to the position set out in the defence response and pleading guilty to charges 2 and 3.

14 On Monday 4 April, a number of evidentiary and other preliminary matters were discussed in Bendigo. Mr Jamieson was re-arraigned, and pleaded not guilty to charge 1, and guilty to charges 2 and 3.

15 On Tuesday 5 April, as the jury panel was about to be brought in, Mr Jamieson's lawyers asked for time to confer with him. After doing so, the court was informed that Mr Jamieson wished to change his plea. He was re-arraigned and pleaded guilty to all three charges. The proceeding was adjourned until Thursday 21 April, for a pre-sentence hearing in Bendigo.

16 There was a further mention on 14 April, to deal with some subpoena matters. At that stage, Mr Jamieson was still represented by the same counsel and solicitors, and an appointment had been made for him to attend another psychologist, in order to obtain a report for the purpose of the plea hearing.

17 On Monday 18 April, the court was informed that Mr Jamieson had terminated the services of his current lawyers.

18 The matter was brought on for mention on 19 April, to find out what was happening. Mr Jamieson represented himself. His manner was rude and disrespectful, and he clearly did not regard it as important to obtain new representation to enable the matter to proceed on 21 April. Given the large number of people affected by these murders, and the public interest in the victim impact statements being read in Bendigo, where victims would have the support of their family and friends, I determined that I would proceed on the 21st to at least hear the prosecution opening and the victim impact statements.[1] As to when Mr Jamieson's plea would be presented, that would be determined once it was known whether he had obtained new lawyers.

19 At the completion of the hearing on 21 April, I adjourned the pre-sentence hearing for further mention on 29 April.

20 By 29 April, Mr Jamieson was represented by his current solicitors. On 5 May, they informed the court for the first time that Mr Jamieson would be seeking leave to change his plea to charge 1. Accordingly, I set a timetable for the delivery of evidence and submissions relating to the application.

21 Mr Jamieson swore an affidavit dated 24 May, which set out his initial version of events. I will not descend into much of the detail of that affidavit, as it differs so fundamentally from the account which Mr Jamieson ultimately gave in the witness box, after he had heard the evidence of his former barrister, Mr Lavery. It is sufficient for present purposes to note the following matters deposed to by Mr Jamieson in his affidavit:

(a) On Monday 4 April, his barristers told him in conference that his self-defence argument had little chance of success, and he should plead guilty to charge 1. This was completely different to the advice they had given on the previous Friday, that self-defence was arguable;

(b) As a result of the change in legal advice, he felt stressed and let down by his lawyers. He got little sleep on the Monday night, and when he woke up on the Tuesday morning he felt that all hope was lost;

(c) He felt under duress and confused by reason of the conflicting legal advice, and reluctantly said he would plead guilty. He said he did so without a proper understanding of the options he had; and

(d) His lawyers failed to have regard to his reduced cognitive functioning, as identified in the 26 March 2016 report of Associate Professor Brewer (which had been obtained for the purposes of the trial).

22 On 3 June 2016, Associate Professor Brewer further assessed Mr Jamieson. He prepared a supplementary report, dated 5 June 2016, to specifically address the issues relating to the change of plea. He concluded that during the period between 1 and 5 April, Mr Jamieson was anxious and depressed, and his further elevated emotional distress in the face of attending court for serious charges likely exacerbated the impact of his anxiety, to the extent that "his emotional defences were not as reliable as he had characteristically become used to." That elevated distress "would reasonably have been expected to compound his underlying cognitive reasoning, particularly his executive (organisational) function, to a mild extent." Therefore, he was likely acting in a concrete and somewhat more impulsive manner than usual by acquiescing to the new legal advice, and against his better judgment. Associate Professor Brewer's opinion was that Mr Jamieson's cognitive function had been deteriorating over many years.

23 Mr Jamieson had also been assessed in March 2015 by Dr Lester Walton, a psychiatrist engaged by his previous solicitors. Dr Walton's opinion was that Mr Jamieson was "thoroughly cognitively intact", and of normal intelligence. Dr Walton was not called to give evidence in relation to the current application. I proceeded for the purposes of this application on the basis that Mr Jamieson's cognitive functions were impaired in the ways and to the extent identified by Associate Professor Brewer.

24 The essence of the application, as it was put in the initial defence written submissions, dated 7 June 2016, was that there would be a miscarriage of justice if the plea was not set aside, because:

(a) The plea was not entered voluntarily, as Mr Jamieson was pleading under duress, or when his free will was "overborne or significantly compromised";

(b) Mr Jamieson did not truly understand the nature of the charge (ie the elements of murder) or freely agree to plead to the same;

(c) Mr Jamieson's impaired psychological state (including both cognitive deficits and depression) deprived him of:

(i) the ability to properly and fully comprehend the changed legal advice he was given; and

(ii) any meaningful ability to argue or challenge the new advice being given by his lawyers; and

(d) Mr Jamieson did not believe himself to be guilty at the time of the plea, and did not intend to accept guilt for the murder of Mr Holmes.

25 Mr Jamieson's application to set aside the plea came on for hearing on 20 June 2016. By consent, and for the convenience of the professional witnesses, Mr Lavery and Associate Professor Brewer both gave their evidence before Mr Jamieson was cross-examined on his affidavit.

26 Mr Lavery gave a credible and consistent account of his actions and advice in relation to Mr Jamieson. He was well aware of the reports of both Brewer and Walton, and never experienced any difficulties in communicating with Mr Jamieson.

27 Mr Lavery categorically rejected any suggestion that there had been any change in the legal advice given in relation to charge 1. He said the advice had always been that:

there was a runnable and viable defence to be run in respect of charge 1. Not necessarily the strongest defence, it had problems with it but, nonetheless, it was a runnable defence. That advice remained the same at all times.

28 When he gave oral evidence, after hearing Mr Lavery's evidence, Mr Jamieson agreed that there had been no change of legal advice. Instead, he gave the following new reasons for changing his plea:

(a) His lawyers made it sound like self-defence was a hopeless defence;

(b) He was not pressured by his lawyers, but he had no confidence in them;

(c) He felt there was a lack of support or back up from his lawyers; and

(d) He was unhappy with the media ruckus when he was brought to court in Bendigo.

29 By the end of the oral evidence of both Mr Lavery and Mr Jamieson, there was no evidentiary basis for any concern that Mr Jamieson's decision to change his plea to charge 1 was in any way influenced by duress, pressure, confusion, or a lack of understanding about his situation.

30 Because he gave evidence prior to Mr Jamieson, Associate Professor Brewer's evidence was given, and tested in cross-examination, on the assumption that the reason why Mr Jamieson changed his plea was because of a last-minute change of legal advice deposed to by Mr Jamieson. At no stage was Associate Professor Brewer asked what, if any, effect Mr Jamieson's various cognitive deficits might have had in the factual scenario which was ultimately put forward by Mr Jamieson. Given the nature of the deficits identified by Associate Professor Brewer, it is not self-evident that they would have compromised Mr Jamieson's ability to decide that it was in his interests to plead guilty to the charge for the reasons which Mr Jamieson gave in his oral evidence.

31 Associate Professor Brewer agreed that Mr Jamieson had the cognitive capacity to:

(c) Understand what it would mean to plead guilty; and

32 A plea of guilty is a formal and conclusive admission of all elements of the charge. There is no evidence that Mr Jamieson did not understand the nature of the charge of murder and the elements of it. Mr Lavery's evidence that he repeatedly discussed the elements of the crime with Mr Jamieson was unchallenged.

33 The court does not need to be independently satisfied that an accused is in fact guilty before accepting the plea.[2] An accused may plead guilty for various reasons unrelated to their guilt, or their belief in their guilt, including the hope of obtaining a more lenient sentence, or to avoid worry, expense or embarrassment.[3]

34 Even if Mr Jamieson's subjective belief as to his guilt is relevant,[4] and even if he always believed he was acting in self-defence in relation to the murder of Mr Holmes, that would not have precluded him from making a rational decision that it was in his best interests to plead guilty to the charge.

35 The test for whether a judge should grant an accused person leave to change their plea from guilty to not guilty is whether a miscarriage of justice would occur if leave was denied. The discretion is a wide one, albeit one to be exercised judicially.

36 For the reasons given, the evidence was insufficient to persuade me that Mr Jamieson's plea to charge 1 was tainted in any way which would impugn its integrity. On the contrary, I was satisfied that Mr Jamieson made a perfectly rational, unambiguous, free and voluntary plea of guilty, to a charge which he understood well and in respect of which there was overwhelming evidence against him. He was legally represented by competent and experienced lawyers, who gave consistent legal advice throughout. Such cognitive deficits as he may have been suffering would not have prevented him from coming to a rational decision that it was in his best interests to plead guilty before the trial started.

37 I was not persuaded that there would be any miscarriage of justice in refusing Mr Jamieson's application for leave to change his plea to charge 1. Accordingly, I refused the application.

[1] After 22 April, the Supreme Court would not have access to the criminal court in Bendigo again until October 2016.

[2] Were it necessary to do so, I would have had no trouble being satisfied beyond reasonable doubt of Mr Jamieson's guilt of all three charges, on the evidence and for the reasons set out in my sentencing remarks: DPP v Jamieson [2016] VSC 407.

[3] Meissner v R [1995] HCA 41; (1995) 184 CLR 132; Maxwell v R (1996) 184 CLR 501.

[4] As to which there is a dispute between members of the Court of Appeal; see Kumar v R [2014] VSCA 102 and Weston v R [2015] VSCA 354.