R v Da Costa [1999] VSCA 111

20. That counsel and instructing solicitor were not called on the application made on 18 September. The basis of that application to change the plea back to not guilty was that the applicant only altered his plea from fear that, if he incriminated his co-accused, there would be repercussions, not against him personally, but against his family, at the hands of a motorcycle gang known as the Black Uhlans, of which his co-accused were members. The judge heard evidence from the applicant about his reasons for changing his plea to one of guilty and then seeking to revert to his original plea of not guilty. The applicant said that he feared for the life of his family. Hullick (I continue to summarise the applicant's evidence) had asked him where his family lived. In addition, the applicant received messages, including a note dropped into his cell on two occasions, saying, "Do the right thing". He had tried to plead guilty before the committal but was advised by his then solicitor (not the solicitor instructing either counsel before his Honour) that the admissibility of the record of interview might be open to challenge. He decided to plead guilty the night before 1 September, that is, when it was clear that there would be a joint trial. Asked when he decided to plead guilty, he said, "I just wanted to get things over and done with. I hadn't been sleeping, you know, probably a month." This is, I think, a significant answer. He admitted that his record of interview was true and that he knew that his former de facto wife, Priscilla Houting, was available to give quite damaging evidence against him. He also admitted that after pleading guilty he had given instructions to get witnesses and the like for his plea. He said he had changed his mind again when his co-accused had been acquitted. Under cross-examination he admitted that no threat had been made to him to induce him to plead guilty and that no threat had been made to any member of his family, even while his co-accused (who were arrested later than he) were at large. He also admitted that he did not tell his counsel and solicitor on the morning of 1 September that his wish to change his plea to guilty was based on a fear for his family's safety.

23. The judge indicated to him that a document handed to the court on 31 August did not show that his counsel was proposing to challenge the record of interview on a voir dire. The applicant said that he had thought that it was proposed to challenge the record.

26. The record of interview, which the applicant's legal advisers did not intend to challenge and which he himself admitted in his evidence to be true, suggested that the applicant was made of stern stuff. The killing was a very violent affair, committed by several men acting in concert, and according to the record he himself participated in the attack and does not seem to have been at all disturbed by the violence in which he and the others took part. His criminal record shows him to be no stranger to violence, including as it does convictions for armed robbery and assault with intent to steal whilst armed, each leading to a long sentence of imprisonment. Indeed, he told the judge that he had no fears for his own personal safety and that he was concerned about the members of his family, his mother and brother, who lived in the Northern Territory. By a paradox, he appeared to be saying that after the co-accused had been acquitted he did feel fears for his own personal safety. The only basis put forward by him for apprehending violent acts of retribution in the Northern Territory was the fact, as he claimed, that Hullick had more than once asked him if his mother and brother still lived in Darwin.

29. Evidence was given by Mr McLoughlin of Legal Aid Victoria, the applicant's solicitor at the time of the committal, confirming his original intention to plead not guilty and speaking of a change in his demeanour and attitude once his co-accused had been charged. He became, the witness said, progressively less concerned with his own interests. But the applicant never said to McLoughlin that he feared for the safety of his family. Although the applicant mentioned to him that he had received messages he did not relay their content, and he never claimed to have received notes. Six weeks before the trial the applicant said that he did not want McLoughlin to continue to act for him. Up to that point, McLoughlin said, the applicant intended to contest the charge of murder. The witness said that he had advised the applicant that there were grounds for excluding the record of interview. One of the difficulties with McLoughlin's evidence is that, to a very considerable extent, it is in objectionable form, purporting to state what the witness inferred was intended to be conveyed to him by the client rather than the substance of what was said by the client.

32. During argument before the judge, counsel accepted that his predecessor on 31 August had made no application to challenge the record of interview and that the "Pegasus 2 docket" handed to the court on that day foreshadowed no such challenge.

35. McLoughlin said that the depositions showed that the applicant had confessed the killing to his brother.

38. On 21 September the judge ruled that no miscarriage of justice would be occasioned by not allowing the applicant to change his plea. His Honour referred to some of the evidence against the applicant. I quote part of what he said:

"da Costa was arrested by police in Western Australia on 19 March 1997, sixteen months after the murder, and on that day he participated in a lengthy interview in Broome which was tape-recorded. In the course of the interview, da Costa made many incriminating answers to questions and at the same time implicated each of his co-accused in the murder of Smith. The incriminatory admissions made by da Costa, if accepted by the jury as true, would have entitled a jury to find da Costa guilty of the murder of Smith upon the basis that he acted in concert with, or aided and abetted, both his co-accused and others in the killing of Smith in Smith's home. He was present when Smith was killed and said that he participated in inflicting violence upon Smith. He said that he was aware one of his co-accused would be armed with a sharp-edged knife and knuckle duster instrument ... he admitted using violence to Smith. A guilty inference was open that da Costa intended either to kill Smith or to cause him really serious bodily injury. The record of interview also provided support to the evidence of a tainted witness, Priscilla Houting, who was expected to give direct evidence of da Costa's stated intention to hurt or murder Smith and steal drugs from his house. These statements were made shortly before da Costa left her on 16 November 1995. Houting was expected to testify that da Costa left their motel room with a number of men in a car during the afternoon of 16 November and that he returned with his clothing in a bloodied state."

42. The judge said that the evidence did not reveal that any threats were made to the applicant's family. It was significant that the applicant did not tell his counsel or solicitor of the fear on which the guilty plea was supposed to be based. The applicant did not call them as witnesses. The court, his Honour said, was entitled to infer that at the end of the first day's hearing the accused believed that there would be a joint trial and that his interview, the admissibility of which he knew his counsel would not contest, would prejudice his co-accused. His Honour inferred that the applicant decided to plead guilty to help the co-accused and not on account of duress exercised by them, that he was probably made aware of the strength of the Crown case against him by his counsel, and that he was probably informed that a guilty plea would be taken into account on sentence.

45. His Honour discussed the principles on which the application was to be considered. He noted that whether an accused had legal advice before pleading to a serious charge was an important circumstance. In explaining his inference that the applicant decided to plead guilty to help his co-accused and not because of duress, the judge said that at the time of the committal the damaging contents of the record of interview were well known to the co-accused. The judge considered that the plea of guilty was influenced by the applicant's desire to assist his co-accused and not out of a fear for the safety of his family. His Honour suspected - I think that that was a moderate statement - that on the eve of trial the applicant had limited defences available and reiterated that the record of interview was a damning piece of evidence against him.

48. I do not think it necessary to say anything about the principles governing the circumstances in which a conviction recorded following a plea of guilty may be set aside. A number of the authorities in this State have been referred to in the argument. It is said that in the present case the judge's refusal to allow the applicant to change his plea has resulted in a miscarriage of justice.

51. I am quite unpersuaded that a miscarriage of justice will, or may, occur if this application is refused. His Honour, who had the benefit of seeing and hearing the applicant when giving evidence, by his finding that the applicant decided to plead guilty to help his co-accused and not because of pressure from them, plainly did not believe the applicant on the critical part of his evidence, nor did he believe him when he said that he was unaware that his counsel did not propose to argue against the admissibility of the record of interview. It was well open to the judge to take this view of the facts. The short answer to the present application is that the applicant, who carried the burden of proof, was not believed by the judge and failed to discharge it.

54. Mr Gurvich submitted that it was not open to the judge to find that the applicant, in changing his plea to guilty, was influenced by a desire to assist his co-accused. It was for the applicant to satisfy the judge that he had been induced to change his plea by threats. This he failed to do. His credibility was vital, and, not surprisingly, the judge did not believe him. The evidence of the solicitor called in support of the application was, as I have said, most unsatisfactory by reason of being objectionable in form, stating what the witness claimed to have inferred rather than what he was in substance told by the applicant. The critical thing is that the judge declined to make the finding sought, and needed, by the applicant. In any event it was open to the judge to infer, as he did, that, the case against the applicant being very strong, he had been told (a legitimate inference) by his legal advisers that a plea of guilty should lead to a moderation of the sentence, and to infer that his plea of guilty was influenced by the strength of the case against him and the advantage of the plea as regards sentence together with a recognition that the plea would - as it no doubt did - assist his co-offenders by removing from the trial his record of interview, which inculpated them. Mr Gurvich submitted that the judge used the strength of the Crown case against the applicant by way of applying the wrong test, by asking, not whether the plea had been motivated as alleged, but whether the applicant was probably guilty. I do not think that this is so. The judge used the strength of the Crown case permissibly as something bearing on the probabilities with regard to the applicant's motivation in pleading guilty.

62. The question here is whether the judge was wrong not to conclude that the applicant was induced to change his plea for fear of the consequences at the instance of his co-accused if he did not do so. There was evidence from the applicant's former solicitor, Mr McLoughlin, that "in the end, he [the applicant] said to me pretty baldly that basically his only interest was to do what would make Hullick and the other, eventually the third person that was charged, happy". The judge concluded that the plea of guilty "was influenced by his desire to assist his co-accused and not out of a perceived fear for his own safety or that of his family".

65. The thrust of the submission made by Mr Gurvich this morning was that the evidence did not allow the judge to be satisfied on the balance of probabilities that a desire to assist the co-accused was not referable to threats by them or on their behalf. The evidence led from and for the applicant, who bore the onus of proof, was at best equivocal. Brooking, J.A. has referred to the relevant evidence and I need not rehearse it. Having considered it, I agree with his Honour that the learned primary judge was well entitled to be satisfied, as he expressed himself to be.

73. I agree that the application should be dismissed.

78. The order of the Court is that the application is dismissed.