McQuillan v R

Orders made at the hearing of the appeal

1. At that hearing it was conceded by the defence that in the circumstances which have arisen for consideration by this Court on appeal, Ms McQuillan should be granted leave to appeal and that the matter should be remitted to the Local Court, to be dealt with according to law, by a different magistrate.
2. Still a basis for the grant of such leave must be established, if the orders agreed are to be made. That was thus addressed by the parties at the hearing. Having considered the evidence and heard the parties I then made the orders which the parties had agreed.
3. These are the reasons which satisfied me that justice required that those orders be made.

The appeal

1. By her summons Ms McQuillan sought an extension of time to appeal, leave to appeal and to appeal against the refusal of the withdrawal application: s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). In December 2022 Yehia J granted a stay of the Local Court proceedings pending hearing of the summons, in circumstances where the sentence hearing was also fixed for the following day before Hawkins LCM: McQuillan v R (Supreme Court (NSW), Yehia J, 7 December 2022, unrep).
2. Yehia J concluded that in the circumstances justice required the grant of the stay, given that her Honour had indicated that there would be no further adjournments granted to Ms McQuillan, pending the hearing of these proceedings.
3. The grounds of appeal advanced were: "1 In considering the Plaintiff's application to withdraw or traverse her plea of guilty, the Learned Magistrate erred in law by: a. erroneously concluding that the Plaintiff's plea was a free and voluntary confession on the basis it was a "pragmatic" decision rather than under pressure, the lengthy procedural history of the matter and the Plaintiff seeking to avoid a sentence of imprisonment. b. erroneously concluding that the Plaintiff had entered a plea of convenience which was a proposition never put to the Plaintiff in cross-examination, nor was it part of the Plaintiff's case. c. erroneously concluding that the Plaintiff's plea was not infected by mistake or other circumstances affecting its integrity by reason of a finding that Plaintiff was an experienced litigant given her criminal record, a document which was prejudicial and irrelevant and led to an impermissible line of reasoning having not been tendered on the application and irrelevant on the question of the integrity of the plea. d. erroneously concluding that the Plaintiff's plea was not induced by threats or other impropriety because she was assertive in court and pleaded guilty for pragmatic reasons, notwithstanding she was told by Steven Young he was not prepared for hearing and never sighted or signed the "agreed facts" that were tendered when the guilty plea was entered. e. The Magistrate erred by allowing the former solicitor's statutory declaration into evidence, knowing the Plaintiff had no way of cross-examining him. 2. The Learned Magistrate erred in entering the arena of the court as a participant, displaying bias or being afflicted by apprehended bias by: a. taking into account irrelevant considerations; b. using irrelevant evidence not adduced by either party, such as the Sentencing Assessment Report and the Plaintiff's antecedents; c. admitting Steven Young's statutory declaration that would otherwise be inadmissible where he was not present at court, there was no supporting medical evidence adduced and no application was made pursuant to ss 65-67 of the Evidence Act 1995; d. taking judicial notice of facts, matters and circumstances including Steven Young's health, and consequently challenging the Plaintiff's lawyer as to the admissibility of the statutory declaration based upon her personal knowledge of the solicitor; and that an application could be made to admit same; and e. irrelevantly stating the Steven Young's daughter was a 'smart' lawyer. 3. The Magistrate denied the Plaintiff procedural fairness and natural justice by: a. Having regard to the Plaintiff's criminal record and Sentencing Assessment Report, neither of which were adduced by the parties, to make a finding that the Plaintiff was not progressing her matter, was malingering and interested in delaying proceedings; b. Admitting Steven Young's statutory declaration on an impermissible basis, there being no application by the prosecution pursuant to ss 65-67 of the Evidence Act 1995, nor supporting evidence of service of a subpoena; c. Failing to recuse herself from the proceedings where she had declared a conflict of interest in relation to Steven Young; d. Having regard to the amended facts that were unsigned and not ever sighted by the Plaintiff or her lawyer and which the Plaintiff was precluded from challenging due to the absence of Steven Young; and e. Finding there was never an application pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (repealed) entertained by the Plaintiff on the basis of an absence of notation on the court record and the Magistrate's personal knowledge of the late Magistrate McCosker, where Steven Young was unable to be cross-examined and the Plaintiff's evidence was not contradicted in cross-examination on the issue."
4. While it was not accepted that all of these grounds were made out, it was common ground that the evidence established apprehended bias and other errors warranting the extension of time to appeal, leave to appeal being granted, the appeal upheld and the matter being remitted.

Issues

1. Pertinently, the parties' cases raised questions about whether: 1. there was a basis for claimed actual and apprehended bias on the part of Hawkins LCM, when the application for leave to withdraw the plea was refused; 2. Ms McQuillan was denied procedural fairness and natural justice on the hearing of that application; 3. Mr Young's statutory declaration was properly admitted into evidence, given the applicable requirements of the Evidence Act 1995 (NSW); and 4. the application to withdraw the plea had been correctly heard and refused, the starting point for consideration of such an application being whether a miscarriage of justice had occurred, or would occur, should the sentence proceed: R v Boag (1994) 73 A Crim R 35 at 36.

Apprehended bias

1. The proceedings had been pursued in the Local Court with some apparent difficulty, at the time of the COVID-19 pandemic. Reference was also made in the evidence to the impact of floods. The matter had come before the Local Court on many occasions, before the hearing which generated this appeal, a matter which her Honour took into account adversely to Ms McQuillan's application, together with what was known about her prior record.

The course which the withdrawal hearing took

1. It was common ground that earlier in the proceedings, a question of recusal by her Honour had arisen. The view her Honour then took was that she would not hear the matter, given that Mr Young was to be cross-examined. At the hearing of the withdrawal application, that was raised by Mr Kogias: "Kogias: Just one issue, your Honour, I thought that your Honour was going to excuse herself from this matter and that's why we had a different Magistrate on the last occasion. Hawkins: Well, that's so but I think we're all very well aware of Mr Young's position and there is no way in the world I am obliging him to come to court right now. Have you seen him lately? Kogias: I haven't. Hawkins: Well, he is very unwell, indeed, and there is no way he's coming to court. I am just - it's just not happening. Kogias: He was going to appear by AVL though. Hawkins: I'm not - Mr Kogias, let's be frank, Mr Young is dying. Kogias: Really? I'm… Hawkins: I am not going to oblige him to give evidence… Kogias: Yes. Hawkins: …when he is dying. If you could see him you would see that he is very unwell. So the matter has to proceed. Kogias: Yes. Hawkins: I was only going to recuse if Mr Young was cross examined and quite frankly, it would be inhumane to put him through… Kogias: No. No. Hawkins: …that now. Kogias: I'm not going to - yeah, that's fine, your Honour."
2. From the transcript it is apparent that Mr Kogias understood as a result of this exchange that Mr Young's statutory declaration would not be used. But it was later tendered by the prosecution, after Mr Kogias had indicated the documents he would rely on, which included Ms McQuillan's ERISP statement, her September 2020 affidavit and "court bench papers". After discussion about what was on the Court file, Mr Kogias said: "Now, since we're not going to be using Mr Young's statutory declaration I don't need to get any further instructions from my client in relation to making some comments in relation to that statutory declaration."
3. After discussion about an affidavit which had been sworn by Ms McQuillan's aunt, who had had discussions with Mr Charles Waterstreet about appearing; whether he was then on the roll and had spoken to Mr Young and given advice about the matter as a family friend, at a time when he was no longer in practice.
4. The transcript does not make clear whether the affidavit was received. Indeed, none of the documents relied on were marked as exhibits, making unclear what was before the Court, particularly what was referred to as "court bench papers".
5. The prosecution then tendered Mr Young's declaration, contrary to Mr Korgias' understanding. This led to exchanges including: "Prosecutor: I rely on the statutory declaration from the hand of Mr Steven Young. Hawkins: Mm-hm. Do you have a copy of that to hand? Kogias: I do… Prosecutor: I… Kogias: …your Honour. If that's going to be tendered - and I'd need to get some - get my client to lead some evidence in relation to that statutory [unclear]… Hawkins: Well, that's why I was asking you, Mr Kogias, if you had any evidence to call… Kogias: Well, I thought… Hawkins: …while we were going - don't talk over me, Mr Kogias. Kogias: I thought that was going to be admitted because he's not available for cross examination that's why. Hawkins: Well, just because he's not available doesn't mean his evidence can't be relied upon. Kogias: Well, usually, your Honour, I think the rules are that if someone gives an affidavit then they should be available for cross examination. Hawkins: Unless they're unavailable and the court - this is a regional area where people know each other and this court knows that Mr Young is in a very poor state of health at this point in time and he would be - he is unavailable. Kogias: Well, in that case, your Honour, just in - in fairness, I would like my client to give some evidence in relation… Hawkins: Okay. Do you wish to call your client then?"
6. Ms McQuillan was then called to give oral evidence, which included that neither Mr Young nor anyone from his office had earlier discussed the matter with her; explained steps she had taken to extend the vehicle hire on 14 February, as well as her discussion with Mr Young about her medical condition and problems with medication at the time of her arrest.
7. Ms McQuillan was cross-examined about her discussions with Mr Young about the charge, which she accepted resulted in her understanding it; their discussions of her options on the morning of the hearing and that her bail would be revoked; his advice that she would be convicted by McCosker LCM if she persisted in her not guilty plea; and her instruction that she had been late in returning the vehicle but had not intended to steal it. Her evidence included that: "McQuillan: He suggested to me that if I entered a guilty plea on the day it would ensure that I would be - bail continued because he would seek a PSR report from Corrective Services to be done before my sentencing date. I was adamant that I didn't want to plead guilty and I didn't feel comfortable doing that but his response was that it's neither here nor there because we would lodge a section 32 report given that you weren't on your medication during the time of what happened. Prosecutor: So in answer to my question there was discussion with Mr Young about the options to make a mental health application under section 32? McQuillan: Yeah. His strong recommendation was that I pled guilty on the day to seek a six week adjournment for the PSR report. Meanwhile, we would be putting together a - I would be waiting for a phone call from a psychiatric nurse I believe it was in Port Macquarie… Prosecutor: Ma'am, the date of the hearing when you had these discussions was 11 February 2021, is that right? McQuillan: That's correct. Prosecutor: Now, you were running late to court on that day, weren't you? McQuillan: Probably. I'm running late for most things. I've got four children Prosecutor: You texted Mr Young at about 9:54 am that day? McQuillan: Possibly, yes. Prosecutor: You said in that text message, Steven, just had a slight delay. Waiting on a fax from my solicitor in Sydney that handled my last matter at the Downing Centre District Court in 2019. It is a psych report that may hold significance - relevance to today and how we proceed."
8. Later Ms McQuillan said that what she wanted to do on that day was to lodge a s 32 application. She agreed that she had changed her plea to guilty on Mr Young's advice and it was put to her: "Prosecutor: You wanted a mental health outcome. McQuillan: I wanted to be assessed for a section 32 because of the mitigating factors that I've just said to you. I don't understand what's wrong with that. Prosecutor: So ma'am, when things didn't go the way you wanted them to… McQuillan: That was never asked of the court. Prosecutor: …you've tried to change your plea? McQuillan: There was no application made by Mr Young for a section 32. He didn't do what he said he was going to, to me."
9. In re-examination Ms McQuillan said that Mr Young withdrew when she expressed her shock at the next hearing, when he advised her that a s 32 application would not be lodged.
10. Her Honour then interrupted the questioning and said: "I'm going to stop this and I'm going to draw the parties' attention to what the court record actually says. 11/2, it was a plea of guilty, adjourned for a sentence assessment report to 7 April. 7 April, defendant sick, did not attend court. Then it was adjourned - and it was adjourned, must proceed to sentence. No adjournment. 28/4. That's when Mr Young withdrew. But I also draw the court's - the parties' attention to this, Ms McQuillan …"
11. Ms McQuillan was then asked further questions about these events; her attendance at various return dates; and Mr Young's advice about those attendances.
12. The prosecutor then confirmed that the only evidence relied on was Mr Young's declaration.
13. The case Mr Kogias advanced on the withdrawal application addressed difficulties in obtaining legal aid funding for a psychiatric report and the circumstances in which Mr Young had withdrawn. The submission was that Ms McQuillan had an arguable case and that it was in the interests of justice to permit her to withdraw her plea, in circumstances where she had returned the car late; had attempted to pay for the extra time; where she was having financial difficulties because her child support payments had not been made by her husband; when she had not sought to deprive Hertz of its possession of the vehicle; and there being evidence that payment had later been made. It followed that the necessary mens rea could not be established.
14. The decision was given by Hawkins LCM later in the day. After analysing Ms McQuillan's evidence and her history of attendance when the matter was before the Court, before turning to Mr Young's evidence, her Honour observed: "Mr Young, who as indicated to the parties at the outset, this is a regional area, and the court is aware of the people who regularly appear in front of it. Mr Young has been struggling with a significant health issue and is extremely unwell at this point in time, and it is not expected, it would seem, that he will be returning to practice at all, given the last time the court saw Mr Young, he was looking very ill indeed. It was the determination of this court that it would not be obliging Mr Young to come along to give evidence in this matter, because to oblige a tremendously sick man to come to court in relation to a matte [sic] such as this would be inhumane, in my opinion, given his profound illness at this point in time."
15. The parties had not led evidence about this.
16. Her Honour then referred to Mr Young's evidence that he had advised Ms McQuillan that she had no defence to the period after 19 February and her resulting options, with the result entry of a plea to modified facts and that he withdrew when Ms McQuillan later instructed she wished to withdraw her plea. Her Honour observed that Mr Young had made no reference to discussing any mental health application and no notation about that was on the file.
17. Her Honour concluded that it followed that Ms McQuillan's evidence about a s 32 application was unsupported, with the result that it was not accepted that she had an expectation that a s 32 application would happen.
18. Her Honour thus concluded that the plea entered had not been imprudent or induced by threats or misrepresentation, or that there had been any plan to get a s 32, but for the pragmatic purpose of avoiding going to jail that day.

What was before the Court?

1. The course which the hearing took led, on appeal, to a disagreement between the parties about what was before the Local Court; whether there had been any objection to the receipt of Mr Young's statutory declaration; and whether he was unavailable.
2. The latter, it should be noted, was governed in criminal proceedings by s 65 of the Evidence Act. In such adversarial proceedings it was, of course, for the parties to raise and respond to the question of admissibility and not to be raised and pronounced upon by the presiding judicial officer, without evidence or hearing the parties.
3. These difficulties are entirely bound up with the matters which the parties agree establish her Honour's apprehended bias, in circumstances which ought to have led her to persist in her recusal. But clearly, the way in which the question of unavailability was raised and determined was inappropriate and supports the conclusion that the orders which the parties agreed should be made.

Apprehended bias is established

1. On this appeal there was no issue about: 1. the applicable principles or that their application in this case had to result in the conclusion that features of the conduct of her Honour's hearing of Ms McQuillan's withdrawal application might give rise to a reasonable apprehension that she might not have brought an impartial and unprejudiced mind to the application: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; or 2. that this apprehension arose from a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in the proceedings, in this case Ms McQuillan, Mr Young and his daughter Ms Young, who her Honour also mentioned: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [30].
2. There was a question addressed about the time of making a disqualification application, required to be made as soon as reasonably practicable after the relevant facts become known, failing which the right may be waived: Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44. But given the way that these proceedings unfolded, and the pre-existing associations were revealed, including in her Honour's judgment, it was common ground that this timing could not preclude the orders sought being made: Vakauta at [572]. I agree.
3. It was also common ground that apprehended bias was established by: 1. her Honour having earlier recused herself from hearing the proceedings because of Mr Young's involvement as a witness, for reasons not then given, but which stemmed from the need for him to be cross-examined; 2. her Honour's failure later to recuse herself when the withdrawal application came before her and Mr Young's statutory declaration was received into evidence, given the knowledge she then disclosed having about Mr Young and his serious ill health and her view that it would be inhumane to permit him to be cross-examined; 3. this suggesting that if Mr Young were to be cross-examined as to credit, given the issues lying between the parties, her Honour would feel compelled to accept his version, or would not bring an unbiased mind to the evaluation of his evidence; 4. these circumstances being capable of leading a fair-minded lay observer to conclude that the association with Mr Young being sufficient to justify her Honour's recusal if he was to give evidence, might also affect her capacity to bring an impartial mind to the evaluation of his statutory declaration; 5. her Honour having also referred to her views about the experience and competence of Mr Young's daughter, Ms Young, also a solicitor, who had provided some assistance in the matter. By the reasons given, this appeared to have bolstered her Honour's preference for the evidence of Mr Young over that of Ms McQuillan; 6. Ms McQuillan's unchallenged evidence, despite there being no note on the Court file of an intention to make a s 32 application, that she had discussed such an application with Mr Young and having been cross-examined on the basis that she had been motivated to change her plea, in order to seek a mental health outcome, her Honour was still not persuaded that any discussion of a s 32 application had taken place between Ms McQuillan and Mr Young; and 7. a fair minded lay observer thus also concluding that her Honour may not have been impartial in her evaluation of the competing evidence actually led at the hearing.
4. I am also satisfied that the existence of the required disqualifying association between her Honour and Mr Young was established on the evidence. Further, that it was such that a fair minded observer could consider that her Honour's associations with Mr Young and Ms Young would divert her Honour from deciding this case solely on its merits: Ebner at [30].
5. Given that her Honour had earlier considered it necessary to recuse herself, no doubt given the applicable principles, from a hearing that involved the assessment of conflicting evidence given by Mr Young and Ms McQuillan, it must be accepted that the same result necessarily had to be arrived at when what had to be decided turned on a statutory declaration about which Mr Young could not be cross-examined.
6. That Mr Young could not be cross-examined should have reinforced the conclusion that there was a need for recusal, because necessarily, a determination about whose evidence about the making of a s 32 application should be preferred, his or Ms McQuillan's, had to be arrived at, given the course her Honour pursued, without the benefit of the usual cross-examination of Mr Young.
7. The circumstances of her Honour's association and acquaintanceship with Mr Young were not altered by the inability to call him, a matter which her Honour raised and determined, without application by the prosecution or having heard Mr Kogias. That should have resulted in the same outcome, recusal, given the connection which existed and had already been accepted by her Honour as giving rise to an apprehension about the possibility of deviation from impartial decision making: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36.

Denial of procedural fairness and natural justice

1. That a greater degree of formality and process in the tendering and receipt of evidence at the hearing would have been desirable, was also common ground on appeal.
2. The amended facts on which the matter proceeded were unsigned, but consistent with Mr Young's evidence that a negotiated plea had been entered.
3. Still, it was agreed that there was force in the complaint made about the handling of the evidence and that as a matter of procedural fairness, given that Mr Young could not be cross-examined, less weight should have been given to the absence of any reference in his affidavit to a s 32 application.
4. Neither that nor the absence of a notation about such an application on the court file was determinative of whether Ms McQuillan had discussed such an application with Ms Young. Ms McQuillan's unchallenged evidence was the only evidence before the Court on that question, but still she was not believed.
5. The parties' acceptance that in all these circumstances, there had been a denial of procedural fairness, has obvious force and must also be accepted.

The refusal of the application to withdraw the plea

1. The conclusions which her Honour arrived at, that the plea had involved a free and voluntary confession, necessarily depended on an assessment of the evidence of Ms McQuillan and Mr Young. Her Honour's conclusions included that:

• Ms McQuillan was aware of what she was doing by entry of her plea, given problems in relation to preparation of her defence and amendment to the facts presented to court;
• Ms McQuillan entered her plea for pragmatic purposes, in order not to have the matter completed that day and perhaps that day avoiding jail; and
• an inference drawn from Ms McQuillan's later conduct that she had been interested in delaying the proceedings as much as possible, a factor also in play when the plea was entered.

1. The Crown case was that despite the problems flowing from the apprehended bias established, there had been no error in taking such matters into account, it being settled that there is no miscarriage from reliance on a plea, even if the person is in truth not guilty and that a plea freely and voluntarily entered may be accepted by a court: Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 at 141.
2. But that does not mean that an understanding that the offence to which the plea entered was to be dealt with under s 32 of the Mental Health Act is irrelevant, in determining whether a confession has been freely and voluntarily made. Entry of a plea by a person who is in a position where they should be dealt with under that provision, is undoubtedly a matter to be taken into account in determining whether a person has entered a plea freely and voluntarily. After all, such a person may or may not be capable of forming a consciousness of guilt.
3. Ms McQuillan's evidence was that she had reluctantly accepted Mr Young's advice to change her plea, against her better judgment, a decision which she later regretted, because she wanted a s 32 assessment given mitigating factors she referred to, saying "I don't know what's wrong with that".
4. There was evidence of Ms McQuillan's familiarity with the criminal justice system to which her Honour referred, given her criminal record; that the matter had been before the Court 13 times; and a text message to Mr Young that she was still waiting for a copy of a psychiatric report.
5. That all of this could not have affected entry of Ms McQuillan's plea as the result of mistake or other circumstance affecting its integrity, as her Honour found, does not follow.
6. Her Honour also rejected Ms McQuillan's evidence that Mr Young had told her that they were not prepared for the hearing. Her Honour also concluded that Ms McQuillan's plea could not have been induced by undue or improper pressure, given her demonstrated ability to assert herself, even though it was common ground that she had not seen the agreed facts tendered on the plea.
7. The defence case was that no error of law arose from these findings and that the plea Ms McQuillan entered was aptly described as a "plea of convenience", rather than one not freely and voluntarily entered for reasons other than a genuine consciousness of guilt.
8. I am not satisfied that this can be accepted.
9. It may not be overlooked that her Honour's conclusions were all arrived at by a trier of fact who should have recused herself, given her associations with Mr Young and his daughter. These assessments ought all to have been undertaken by a trier of fact about whom questions of apprehended bias did not arise.
10. The approach wrongly adopted resulted in the hearing miscarrying, so that the appeal must be upheld and the matter remitted, as the parties agreed.

Orders

1. It was for these reasons that I made the following orders: 1. Leave to amend the Plaintiff's Summons be granted. 2. Amend Summons to remove the Crown as a respondent/defendant. 3. Grant an extension of time to lodge the appeal. 4. Leave to appeal be granted. 5. The appeal be allowed. 6. Set aside the interlocutory order of the Local Court at Forster made on 30 September 2022 disallowing the withdrawal or traversal of the guilty plea in the matter R v Jasmine McQuillan bearing JusticeLink file No. 2020/0061374. 7. Remit the proceedings to the Local Court to be dealt with by a different Magistrate according to Law. 8. Second Respondent to pay the Applicant's costs as agreed or assessed.

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