R v Daley

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

REASONS FOR JUDGMENT 1 Her Honour: By notice of motion filed on 15 October 2001 the applicant seeks leave to withdraw pleas of guilty he entered on 24 May 2001 to six charges on an indictment. Background 2 On 31 July 2000 the applicant was arrested and charged in relation to a series of sexual assaults and robberies said to have been committed over a period between 5 September 1998 and 7 July 2000, and involving eight different female complainants. He was committed to stand trial in this court. The trial was fixed to commence on 7 May 2001, with an estimate of six weeks. Altogether, at that time, the applicant faced twenty-one charges. These were counts of detaining for advantage (four counts); aggravated sexual assault (five counts); attempted sexual assault (three counts); armed robbery (eight counts); indecent assault (one count).

3 Shortly before the trial was due to commence the applicant filed a notice of motion challenging the admission of a large volume of the evidence the Crown intended to adduce, and seeking, in alternative ways, separation of the trials in relation to various charges. The first two weeks of the allocated trial dates were occupied with a voir dire, during which evidence was taken and argument was heard relating to the notice of motion. Determination of the many issues raised by the notice of motion involved review of most of the Crown evidence. It is the subject of detailed reasons for my decision. In summary, I ruled that all challenged evidence would be admitted, and refused to separate the trials of any of the charges. The reasons for judgment are dated 14 September 2001. However, I announced my rulings, and delivered a written summary, on 22 May 2001. The trial, before a jury, was then expected to commence shortly thereafter. In the meantime the applicant, through his legal representatives, indicated his intention to plead guilty to certain charges. When indicted on 24 May the applicant entered pleas of guilty to six counts - two of sexual intercourse without consent, two of armed robbery, and two of detaining for advantage. These charges related to the assaults on and robberies of two of the complainants. Pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999, the applicant indicated that he wanted the court to take into account a further 13 offences, of which he expressly admitted his guilt. These were all but two of the offences with which he had previously been charged, involving the assaults on five of the remaining complainants. The charges relating to the eighth complainant were not pursued in these proceedings.

4 The transcript records that, following the procedure prescribed by s 32 of the Crimes (Sentencing Procedure) Act, I found the applicant guilty of each of the offences on the indictment, asked him if he admitted his guilt of the further offences listed on the Form 1, and whether he wished the court to take those further offences into account in dealing with the offences on the indictment. To each of these questions the applicant answered in the affirmative. His counsel, Mr Turnbull, had been given leave to assist the applicant, and was standing by the dock at the time of this procedure. He had earlier had a conference with the applicant, in the cells attached to the court.

5 A date was fixed for hearing of matters relevant to sentence. Before that hearing could take place the applicant terminated the retainer of his legal representatives and communicated a wish to withdraw his pleas of guilty. He has now made a formal application to do so.

6 The principles to be applied to the determination of an application to reverse a plea of guilty have been stated many times. Counsel who appeared for the applicant on this application referred to the decision of the High Court in Meissner v R (1995) 184 CLR 132 and particularly to the single judgment of Dawson J, at p 157. There his Honour referred to circumstances in which a conviction may be set aside following a plea of guilty, saying that that would not occur unless it was shown that a miscarriage of justice had occurred, and that, ordinarily, that would only occur where the accused did not understand the nature of the charge or did not intend to admit his guilt, or if, on the facts admitted by the plea, he could not in law have been guilty of the offence. However, his Honour recognised that other circumstances may give rise to a miscarriage of justice such as to permit the withdrawal of a plea of guilty such as where it is shown that the plea was produced by intimidation, improper inducement or by fraud.

7 Meissner was a case principally concerned with attempts to pervert the course of justice, but the principles stated by Dawson J are well recognised as those relevant to an application to reverse a plea of guilty. The Court of Criminal Appeal has, in the last two years, had to deal with the issue on a number of occasions, and the principles have been re-stated. Decisions include R v Marchando [2000] NSWCCA 8 (unreported, 11 February 2000); R v Wilkes [2001] NSWCCA 97 (unreported, 21 March 2000); R v KCH [2001] NSWCCA 273 (unreported, 19 September 2001). As I observed in Marchando, the central question is always whether it is shown that the plea of guilty was not really attributable to a consciousness of guilt (at [4]). Authority for that proposition is to be found in R v Davies (1993) 19 MVR 481. Reference was also made to R v Sewell [2001] NSWCCA 299 (unreported, 10 August 2001). In that case, Smart AJ reviewed a number of authorities. I have reread these authorities and reminded myself of the relevant legal principles.

8 On 6 December 2001, the hearing of his application to withdraw the pleas of guilty commenced. The applicant gave oral evidence. He stated that he had entered his pleas of guilty whilst in a state of confusion as a result of the consumption of drugs (valium and marijuana). He said he had no recollection of entering the pleas, and had not been aware of what he was doing. The tenor of his evidence was a denial that his pleas were truly attributable to a consciousness of guilt.

9 He said that he became aware that he had pleaded guilty only after he had returned to prison. He said that the following day other prisoners read to him newspaper reports of the proceedings and the pleas.

10 From time to time during his evidence he volunteered that he was not guilty of the offences. 11 The applicant also claimed that, almost from the commencement of his representation, pressure had been brought to bear upon him to plead guilty to the charges. He maintained that he withstood this pressure insisting that he was not the perpetrator of the crimes. His lawyers, each of whom gave evidence, denied having applied such pressure, but agreed that the implications of a plea of guilty had been considered and discussed from time to time. In the light of the evidence in the Crown case, to which I will shortly refer, it was a perfectly legitimate, proper and responsible course for his legal representatives to discuss with the applicant the prospects, and the potential benefits, of a plea of guilty. Even taking the applicant's evidence at its highest, I do not accept that there was any undue or improper pressure brought to bear upon him. It was the duty of the legal representatives to bring home to him the strength of the case which he was facing, and the benefit he could achieve by acknowledging his guilt.

12 Both the solicitor and the barrister who had represented the applicant up to the time he entered his pleas of guilty were called to give evidence in the Crown's response to the applicant's claim. From their accounts emerged a chronology which may here be briefly stated. As noted above, my rulings on the disputed evidentiary matters were delivered (in writing, but without detailed reasons) on 22 May. On 23 May the two legal representatives, together with a third, anticipating that the trial would commence on or about 24 May, spent a good part of the day inspecting the various locations where the offences were said to have been committed. During the afternoon, probably relatively late in the afternoon, they attended at the Silverwater Prison, where the applicant was being held, to confer with him. At this time, on their evidence, both expected that the trial would continue and the applicant would enter pleas of not guilty. However, during the conference, the question of a change of plea was raised. The applicant asked the two counsel to leave him alone with the solicitor for a time and further discussions took place. The counsel returned and, eventually, the applicant gave instructions that he would plead guilty. It should here be observed that discussions between the representatives of the Crown and of the applicant had preceded all of these events, including the delivery of rulings, and the arrangement (which eventuated) of an indictment containing six charges, with the remainder of the allegations to be dealt with by way of Form 1 pursuant to the Crimes (Sentencing Procedure) Act, had been canvassed. It was this arrangement that the applicant agreed to. 13 In relation to the conference at Silverwater on 23 May, Mr Turnbull said that he had made a note that the applicant was "red eyed and subdued". Mr Adamson, the solicitor, described him as "deflated". Mr Adamson remembered his demeanour on 24 May, the day the applicant entered his pleas, as "agitated". 14 However, Mr Turnbull was adamant that the applicant was alert and proactive during the Silverwater conference, that there was no apparent cause for concern in his demeanour on 24 May, and that he (Mr Turnbull) took steps to satisfy himself, and did satisfy himself, that the applicant was fully conversant with the proposal that was put to him and fully understood it. The evidence of both lawyers was that extensive discussions took place before the applicant decided to plead guilty. Neither observed any signs that the applicant was affected by drugs, whether medicinal or illicit. I am satisfied that he fully understood the implications of the advice he was given, the discussions about the merits of entering pleas of guilty and the prospects of acquittal, and that the applicant decided to plead guilty essentially because of the strength of the Crown case, and the benefits he could receive from the course he ultimately took. At heart, this was because the applicant acknowledged his guilt of the offences, an acknowledgment expressly reinforced when he was questioned in court. 15 I have no doubt that the applicant's decision was, to a large extent, influenced by the adverse voir dire rulings. However, he did not at any time claim that his capacity to make a reasoned judgment was affected by shock or disappointment at the result. The decision he made was, above all, a realistic one. 16 An attempt was made to make something of the accounts of the applicant's demeanour but, in my view, it takes only a moment's thought to understand why the applicant would have been in a condition such as to warrant these descriptions. A lengthy voir dire, in which he had plainly hoped to exclude some, if not most, of the Crown evidence, had occupied a good deal of the recent past, and a result which was entirely unfavourable to him had been delivered. It must have been obvious that this decision was devastating to his prospects of an acquittal on any or all of the charges he faced. Further, the applicant was facing the prospect of admitting to the commission of a large number of very serious, very violent crimes; and a lengthy period of imprisonment. It is little wonder that he was emotionally dislocated. However, that does not imply that he was not fully conscious of the decision he took and its ramifications, nor that his decision to plead guilty was not made for proper reasons: that is, that he knew that he was guilty of the offences to which he pleaded guilty, (and the additional offences of which he admitted his guilt). 17 Criticism was made of the legal representatives, in particular the solicitor, in relation to notes taken (or in some cases not taken) during the conferences. However, this does not persuade me that there was any pressure, impropriety, or influence that could be said to affect the integrity of the applicant's pleas. The applicant had to face the reality of the cases he was facing. 18 I do not accept that the applicant was not fully aware of what he was doing when he entered his pleas of guilty. In this respect, I am entitled to take into account the strength of the Crown case, with which I have a more than usual familiarity by reason the extensive matters canvassed on the voir dire. The reasons for judgment demonstrate the detailed examination that was made of the Crown evidence. In my opinion the applicant legitimately pursued his options in challenging the admission of that evidence, but, having failed to achieve the exclusion of any of the evidence, he recognised the strong likelihood of conviction, and was made aware the benefit that could still accrue to him if he were to plead guilty. I am fully conscious that there is a distinction between making a firm decision to plead guilty because of the recognition of the inevitability, or probability, of conviction, and a decision to plead guilty because of a consciousness of guilt. In relation to the latter, the strength of the Crown case is not an irrelevant consideration. I am quite satisfied, having regard to the Crown case, as well as to the evidence adduced in support of the application, that the applicant entered his pleas because he was fully aware that he was guilty of the offences charged. There is no other discretionary reason why he should be permitted to withdraw pleas of guilty properly entered. According, the application is dismissed.

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      CRIMINAL DIVISION

REASONS FOR JUDGMENT 1 Her Honour: By notice of motion filed on 15 October 2001 the applicant seeks leave to withdraw pleas of guilty he entered on 24 May 2001 to six charges on an indictment. Background 2 On 31 July 2000 the applicant was arrested and charged in relation to a series of sexual assaults and robberies said to have been committed over a period between 5 September 1998 and 7 July 2000, and involving eight different female complainants. He was committed to stand trial in this court. The trial was fixed to commence on 7 May 2001, with an estimate of six weeks. Altogether, at that time, the applicant faced twenty-one charges. These were counts of detaining for advantage (four counts); aggravated sexual assault (five counts); attempted sexual assault (three counts); armed robbery (eight counts); indecent assault (one count).

3 Shortly before the trial was due to commence the applicant filed a notice of motion challenging the admission of a large volume of the evidence the Crown intended to adduce, and seeking, in alternative ways, separation of the trials in relation to various charges. The first two weeks of the allocated trial dates were occupied with a voir dire, during which evidence was taken and argument was heard relating to the notice of motion. Determination of the many issues raised by the notice of motion involved review of most of the Crown evidence. It is the subject of detailed reasons for my decision. In summary, I ruled that all challenged evidence would be admitted, and refused to separate the trials of any of the charges. The reasons for judgment are dated 14 September 2001. However, I announced my rulings, and delivered a written summary, on 22 May 2001. The trial, before a jury, was then expected to commence shortly thereafter. In the meantime the applicant, through his legal representatives, indicated his intention to plead guilty to certain charges. When indicted on 24 May the applicant entered pleas of guilty to six counts - two of sexual intercourse without consent, two of armed robbery, and two of detaining for advantage. These charges related to the assaults on and robberies of two of the complainants. Pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999, the applicant indicated that he wanted the court to take into account a further 13 offences, of which he expressly admitted his guilt. These were all but two of the offences with which he had previously been charged, involving the assaults on five of the remaining complainants. The charges relating to the eighth complainant were not pursued in these proceedings.

4 The transcript records that, following the procedure prescribed by s 32 of the Crimes (Sentencing Procedure) Act, I found the applicant guilty of each of the offences on the indictment, asked him if he admitted his guilt of the further offences listed on the Form 1, and whether he wished the court to take those further offences into account in dealing with the offences on the indictment. To each of these questions the applicant answered in the affirmative. His counsel, Mr Turnbull, had been given leave to assist the applicant, and was standing by the dock at the time of this procedure. He had earlier had a conference with the applicant, in the cells attached to the court.

5 A date was fixed for hearing of matters relevant to sentence. Before that hearing could take place the applicant terminated the retainer of his legal representatives and communicated a wish to withdraw his pleas of guilty. He has now made a formal application to do so.

6 The principles to be applied to the determination of an application to reverse a plea of guilty have been stated many times. Counsel who appeared for the applicant on this application referred to the decision of the High Court in Meissner v R (1995) 184 CLR 132 and particularly to the single judgment of Dawson J, at p 157. There his Honour referred to circumstances in which a conviction may be set aside following a plea of guilty, saying that that would not occur unless it was shown that a miscarriage of justice had occurred, and that, ordinarily, that would only occur where the accused did not understand the nature of the charge or did not intend to admit his guilt, or if, on the facts admitted by the plea, he could not in law have been guilty of the offence. However, his Honour recognised that other circumstances may give rise to a miscarriage of justice such as to permit the withdrawal of a plea of guilty such as where it is shown that the plea was produced by intimidation, improper inducement or by fraud.

7 Meissner was a case principally concerned with attempts to pervert the course of justice, but the principles stated by Dawson J are well recognised as those relevant to an application to reverse a plea of guilty. The Court of Criminal Appeal has, in the last two years, had to deal with the issue on a number of occasions, and the principles have been re-stated. Decisions include R v Marchando [2000] NSWCCA 8 (unreported, 11 February 2000); R v Wilkes [2001] NSWCCA 97 (unreported, 21 March 2000); R v KCH [2001] NSWCCA 273 (unreported, 19 September 2001). As I observed in Marchando, the central question is always whether it is shown that the plea of guilty was not really attributable to a consciousness of guilt (at [4]). Authority for that proposition is to be found in R v Davies (1993) 19 MVR 481. Reference was also made to R v Sewell [2001] NSWCCA 299 (unreported, 10 August 2001). In that case, Smart AJ reviewed a number of authorities. I have reread these authorities and reminded myself of the relevant legal principles.

8 On 6 December 2001, the hearing of his application to withdraw the pleas of guilty commenced. The applicant gave oral evidence. He stated that he had entered his pleas of guilty whilst in a state of confusion as a result of the consumption of drugs (valium and marijuana). He said he had no recollection of entering the pleas, and had not been aware of what he was doing. The tenor of his evidence was a denial that his pleas were truly attributable to a consciousness of guilt.

9 He said that he became aware that he had pleaded guilty only after he had returned to prison. He said that the following day other prisoners read to him newspaper reports of the proceedings and the pleas.

10 From time to time during his evidence he volunteered that he was not guilty of the offences. 11 The applicant also claimed that, almost from the commencement of his representation, pressure had been brought to bear upon him to plead guilty to the charges. He maintained that he withstood this pressure insisting that he was not the perpetrator of the crimes. His lawyers, each of whom gave evidence, denied having applied such pressure, but agreed that the implications of a plea of guilty had been considered and discussed from time to time. In the light of the evidence in the Crown case, to which I will shortly refer, it was a perfectly legitimate, proper and responsible course for his legal representatives to discuss with the applicant the prospects, and the potential benefits, of a plea of guilty. Even taking the applicant's evidence at its highest, I do not accept that there was any undue or improper pressure brought to bear upon him. It was the duty of the legal representatives to bring home to him the strength of the case which he was facing, and the benefit he could achieve by acknowledging his guilt.

12 Both the solicitor and the barrister who had represented the applicant up to the time he entered his pleas of guilty were called to give evidence in the Crown's response to the applicant's claim. From their accounts emerged a chronology which may here be briefly stated. As noted above, my rulings on the disputed evidentiary matters were delivered (in writing, but without detailed reasons) on 22 May. On 23 May the two legal representatives, together with a third, anticipating that the trial would commence on or about 24 May, spent a good part of the day inspecting the various locations where the offences were said to have been committed. During the afternoon, probably relatively late in the afternoon, they attended at the Silverwater Prison, where the applicant was being held, to confer with him. At this time, on their evidence, both expected that the trial would continue and the applicant would enter pleas of not guilty. However, during the conference, the question of a change of plea was raised. The applicant asked the two counsel to leave him alone with the solicitor for a time and further discussions took place. The counsel returned and, eventually, the applicant gave instructions that he would plead guilty. It should here be observed that discussions between the representatives of the Crown and of the applicant had preceded all of these events, including the delivery of rulings, and the arrangement (which eventuated) of an indictment containing six charges, with the remainder of the allegations to be dealt with by way of Form 1 pursuant to the Crimes (Sentencing Procedure) Act, had been canvassed. It was this arrangement that the applicant agreed to. 13 In relation to the conference at Silverwater on 23 May, Mr Turnbull said that he had made a note that the applicant was "red eyed and subdued". Mr Adamson, the solicitor, described him as "deflated". Mr Adamson remembered his demeanour on 24 May, the day the applicant entered his pleas, as "agitated". 14 However, Mr Turnbull was adamant that the applicant was alert and proactive during the Silverwater conference, that there was no apparent cause for concern in his demeanour on 24 May, and that he (Mr Turnbull) took steps to satisfy himself, and did satisfy himself, that the applicant was fully conversant with the proposal that was put to him and fully understood it. The evidence of both lawyers was that extensive discussions took place before the applicant decided to plead guilty. Neither observed any signs that the applicant was affected by drugs, whether medicinal or illicit. I am satisfied that he fully understood the implications of the advice he was given, the discussions about the merits of entering pleas of guilty and the prospects of acquittal, and that the applicant decided to plead guilty essentially because of the strength of the Crown case, and the benefits he could receive from the course he ultimately took. At heart, this was because the applicant acknowledged his guilt of the offences, an acknowledgment expressly reinforced when he was questioned in court. 15 I have no doubt that the applicant's decision was, to a large extent, influenced by the adverse voir dire rulings. However, he did not at any time claim that his capacity to make a reasoned judgment was affected by shock or disappointment at the result. The decision he made was, above all, a realistic one. 16 An attempt was made to make something of the accounts of the applicant's demeanour but, in my view, it takes only a moment's thought to understand why the applicant would have been in a condition such as to warrant these descriptions. A lengthy voir dire, in which he had plainly hoped to exclude some, if not most, of the Crown evidence, had occupied a good deal of the recent past, and a result which was entirely unfavourable to him had been delivered. It must have been obvious that this decision was devastating to his prospects of an acquittal on any or all of the charges he faced. Further, the applicant was facing the prospect of admitting to the commission of a large number of very serious, very violent crimes; and a lengthy period of imprisonment. It is little wonder that he was emotionally dislocated. However, that does not imply that he was not fully conscious of the decision he took and its ramifications, nor that his decision to plead guilty was not made for proper reasons: that is, that he knew that he was guilty of the offences to which he pleaded guilty, (and the additional offences of which he admitted his guilt). 17 Criticism was made of the legal representatives, in particular the solicitor, in relation to notes taken (or in some cases not taken) during the conferences. However, this does not persuade me that there was any pressure, impropriety, or influence that could be said to affect the integrity of the applicant's pleas. The applicant had to face the reality of the cases he was facing. 18 I do not accept that the applicant was not fully aware of what he was doing when he entered his pleas of guilty. In this respect, I am entitled to take into account the strength of the Crown case, with which I have a more than usual familiarity by reason the extensive matters canvassed on the voir dire. The reasons for judgment demonstrate the detailed examination that was made of the Crown evidence. In my opinion the applicant legitimately pursued his options in challenging the admission of that evidence, but, having failed to achieve the exclusion of any of the evidence, he recognised the strong likelihood of conviction, and was made aware the benefit that could still accrue to him if he were to plead guilty. I am fully conscious that there is a distinction between making a firm decision to plead guilty because of the recognition of the inevitability, or probability, of conviction, and a decision to plead guilty because of a consciousness of guilt. In relation to the latter, the strength of the Crown case is not an irrelevant consideration. I am quite satisfied, having regard to the Crown case, as well as to the evidence adduced in support of the application, that the applicant entered his pleas because he was fully aware that he was guilty of the offences charged. There is no other discretionary reason why he should be permitted to withdraw pleas of guilty properly entered. According, the application is dismissed.

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