CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY -
WITHDRAWAL AND RESTORATION OF PLEA - where Mr McNicol was charged
with a
drug offence - where Mr McNicol pleaded guilty - where Mr McNicol
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY -WITHDRAWAL AND RESTORATION OF PLEA - where Mr McNicol was chargedwith adrug offence - where Mr McNicol pleaded guilty - where Mr McNicolapplied to withdraw the plea - where Mr McNicol allegedhe was pressured byhis lawyers to plead guilty - whether the plea of guilty was voluntaryPROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR ANDCLIENT - DISCLOSURE OF INFORMATION - where solicitors actedfor Mr McNicolin defence of criminal proceedings - where solicitors and counsel advisedMr McNicol to plead guilty - where Mr McNicolentered a plea of guiltyto the charge - where Mr McNicol then applied to withdraw his plea ofguilty - where Mr McNicol said hewas pressured by his lawyers toenter a plea of guilty - where Mr McNicol said the plea of guilty was notvoluntary - where the Crownopposed the application to set aside the plea -
where the Crown sought evidence from Mr McNicol’s former solicitors -
where
Mr McNicol’s former solicitors made no inquiries of
Mr McNicol as to whether privilege was waived - where the solicitors
provided
an affidavit - whether that conduct was appropriate
JD Heydon, Cross on Evidence, Australian Edition, LexisNexis
Criminal Code Act 1995 (Cth), s 11.2,
s 307.2
Carbone v National Crime Authority (1994) 52 FCR 516,
cited
Edwards v The Queen [1992] HCA 19
(1992) 173 CLR 653, cited
Esso
Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
(1999) 201 CLR
49, cited
Goldberg v Ng [1995] HCA 39
(1995) 185 CLR 83, cited
GR Capital
Group Pty Ltd v Xinfeng Australia International Investments Pty Ltd [2020]
NSWCA 266, cited
Jones v Dunkel [1959] HCA 8
(1959) 101 CLR 298, cited
Lee v
The Queen [2014] HCA 20
(2014) 253 CLR 455, cited
Liberti v R (1991) 55
A Crim R 120, followed
Mann v Carnell [1999] HCA 66
(1999) 201 CLR 1,
cited
Maxwell v The Queen (1996) 184 CLR 501, cited
Meissner v
The Queen [1995] HCA 41
(1995) 184 CLR 132, followed
Minter v Priest
[1930] AC 558, cited
Osland v Secretary, Department of Justice (2008)
234 CLR 275, cited
R v GV [2006] QCA 394, cited
R v
Hodgkinson [1953] VicLawRp 87
[1954] VLR 140, cited
R v Mundraby [2004] QCA 493,
cited
R v Ogborne [2006] QCA 161, followed
R v Paddon [1998] QCA 248
[1999]
2 Qd R 387, cited
R v Presser [1958] VicRp 9
[1958] VR 45, cited
R v
Shillingsworth [1985] 1 Qd R 537, cited
R v Verrall [2012] QCA 310
[2013] 1 Qd R
587, cited
R v Young [2021] QCA 131, cited
Stav Investments Pty
Ltd v Taylor
LK Group Investments Pty Ltd v Taylor [2022] NSWSC 208,
cited
Trade Practices Commission v Sterling [1979] FCA 33
(1979) 36 FLR 244,
cited
Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118
(2018) 58 VR 333,
cited
Waterford v The Commonwealth [1987] HCA 25
(1987) 163 CLR 54, cited
Judgment (114 paragraphs)
[1]
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - where Mr McNicol was charged with a drug offence - where Mr McNicol pleaded guilty - where Mr McNicol applied to withdraw the plea - where Mr McNicol alleged he was pressured by his lawyers to plead guilty - whether the plea of guilty was voluntary
[2]
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - DISCLOSURE OF INFORMATION - where solicitors acted for Mr McNicol in defence of criminal proceedings - where solicitors and counsel advised Mr McNicol to plead guilty - where Mr McNicol entered a plea of guilty to the charge - where Mr McNicol then applied to withdraw his plea of guilty - where Mr McNicol said he was pressured by his lawyers to enter a plea of guilty - where Mr McNicol said the plea of guilty was not voluntary - where the Crown opposed the application to set aside the plea - where the Crown sought evidence from Mr McNicol's former solicitors - where Mr McNicol's former solicitors made no inquiries of Mr McNicol as to whether privilege was waived - where the solicitors provided an affidavit - whether that conduct was appropriate
[3]
JD Heydon, Cross on Evidence, Australian Edition, LexisNexis
Commonwealth Director of Public Prosecutions for the respondent
[30]
[1] This is an application by Paul Clark McNicol to withdraw his plea of guilty to an indictment which contains one charge.
[2] The alleged offending occurred in late 2017 and early 2018, now over four years ago. Mr McNicol was arrested on 25 May 2018. He was committed for trial and an indictment was presented against him[1] (the first indictment).
[3] On 9 December 2019, prosecution of the first indictment was discontinued, and the indictment currently before the court was presented.
[4] The current indictment charged Mr McNicol with an offence against Criminal Code (Cth) 1995[2] that:
[31]
"Between the thirtieth day of November 2017 and the third day of January 2018 at Brisbane or elsewhere in the State of Queensland, PAUL CLARK MCNICOL aided, abetted, counselled or procured the commission of an offence by another person against subsection 307.2(1) of the Criminal Code (Cth), namely that the other person imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a marketable quantity."
[32]
[5] Mr McNicol pleaded guilty to that count on 12 February 2021 and the court administered the allocutus signalling its acceptance of the plea.[3] Mr McNicol was at that point convicted of the count on the indictment[4] and the matter became one for sentence.
[6] On 17 November 2021, Mr McNicol filed an application seeking to withdraw the plea of guilty.
[33]
Procedural history leading to the plea of guilty
[34]
[7] Mr McNicol's application is founded in complaints about the conduct of his lawyers.
[8] There were issues concerning Mr McNicol's legal representation during the committal proceedings.
[9] On 18 June 2018, Mr McNicol was represented in the Magistrates Court by Hannay Lawyers. On 20 August 2018, he appeared on his own behalf in the Magistrates Court. He informed the court that due to funding issues, Hannay Lawyers no longer acted for him but they were holding a lien over the file including the prosecution brief.
[10] Mr McNicol appeared for himself in the Magistrates Court in October and November 2018 indicating that he was seeking to have Guest Lawyers act on his behalf. That firm never came onto the record.
[11] The first indictment was presented and, in due course, the matter was listed for trial commencing on 9 December 2019. Mr J Fraser of counsel was instructed by Howden Saggers Lawyers to appear for Mr McNicol at his trial.
[12] On 9 December 2019, the trial came before Justice Brown. Both counsel and solicitors sought leave to withdraw citing a number of reasons which made it ethically difficult for them to continue. Justice Brown gave the lawyers leave to withdraw. It was on that day the Crown entered a nolle prosequi on the first indictment and presented the current indictment, being the one to which Mr McNicol ultimately pleaded guilty. The trial was adjourned to a date to be fixed. Her Honour set a mention date of 31 January 2020.
[13] On that day, the matter was listed for trial again. The trial was to commence on 11 May 2020. At that point though, Mr McNicol remained without legal representation. A review date of 28 February 2020 was set so that progress with Mr McNicol obtaining legal representation could be monitored.
[14] The matter came before the court again on 28 February 2020. Mr McNicol told the court that he had not yet secured legal representation but was in negotiations with Legal Aid Queensland and expected to have retained counsel within the next week. Orders were made maintaining the trial date of 11 May 2020 but listing the matter for further mention on 13 March 2020.
[15] Neither Mr McNicol nor any lawyers acting on his behalf appeared before the court on 13 March 2020 and a warrant was issued for his arrest. That warrant was withdrawn when Mr McNicol attended court the next day. He told the court on 14 March 2020 that he did not yet have legal representation.
[35]
The handling of the privilege issue by Mr McNicol's former solicitors
[36]
[24] Seven affidavits from four witnesses were read on the application. One witness was not called to give oral evidence. That was Gabriel Perry who is a Senior Federal Prosecutor. His affidavit described the procedural history of the matter and exhibited various documents.
[25] Three witnesses were called. Their affidavits were regarded as their evidence in chief and they were cross-examined. Of the other three, one was Mr McNicol and one was his brother, Garry. They gave evidence as to events both before and after the plea was entered. Last was Mr Hugh Stitt, solicitor of Hannay Lawyers, the solicitors acting for Mr McNicol at the time he entered his plea of guilty. Mr Stitt, in his two affidavits, explained how the plea came about and what advice was given to Mr McNicol by both he and counsel. Various notes of the conversations were exhibited to the affidavits.
[26] The conversations and the notes clearly attracted legal professional privilege. The privilege is an old one originating in Elizabethan times.[5] It protects communications between citizens and their lawyers in various circumstances which include for the purposes of defending criminal prosecutions. The privilege extends to documents which have come into existence for the dominant purpose of use in legal proceedings.[6] It also extends to communications between lawyers or the client and third parties where they are made in contemplation of litigation and for the purposes of the litigation.[7]
[27] Legal professional privilege may be waived, either expressly or impliedly.[8] Waiver can only be made by the person for whose benefit the privilege exists.[9] Solicitors cannot waive a client's privilege except on instructions.[10] Waiver occurs where the person to whom the privilege attaches does some act inconsistent with the maintenance of the privilege.[11]
[28] Difficult questions may arise on:
the extent to which legal professional privilege attaches to communications or documents;
whether legal professional privilege has been waived;
the extent of any waiver of legal professional privilege over communications and documents.
[37]
"HIS HONOUR: Did you ever tum your mind to questions of privilege before you swore these two affidavits?---I was - had raised that with the Commonwealth Director's Office earlier - - -
[38]
Why are you raising it with the Commonwealth? Because your privilege is owed to him?---Yes. Your Honour, I- no, I haven't prior to the swearing of the affidavit.
[39]
So - so the attitude you took is as long as he was saying something that criticised you, it's just open slather and you can just swear whatever you like?---Your Honour, I had spoken to counsel with respect to this and was advised to provide the affidavit, but I hadn't, no, turned my mind to privilege. I had - - -"
[40]
[31] There was no justification in Mr Stitt raising with the Commonwealth issues concerning privilege owed to Mr McNicol although, as observed by Chesterman J (as his Honour then was) in R v Paddon,[14] obligations also fall on the Crown in circumstances such as these.[15] While Mr Stitt sought advice from counsel, it seems the only advice given was to provide the affidavit. Whether careful consideration was given at any stage by anyone to privilege issues is doubtful.
[32] There is a trend which I have noticed that lawyers who have formerly acted for a client in criminal proceedings regard privilege as waived in toto once the client swears an affidavit criticising their handling of the client's matter. Invariably then, the lawyers collaborate with the prosecution and swear affidavits which prima facie breach the privilege which they assume has been waived.
[33] Such a course is fraught with risk. If the lawyer's judgment is wrong and privilege continues to enure for the benefit of the client, then the delivery of the affidavit to the prosecution in breach of the privilege constitutes a serious breach of professional obligation owed to the client.
[34] Because the lawyer cannot waive the privilege owed to the client, the privilege continues to attach to the communications notwithstanding the lawyer's breach of obligations owed to the client to maintain the privilege. If a ruling is subsequently made that the privilege was not waived, or was not waived to the extent the former lawyers for the accused thought, then the lawyers appearing for the Crown are in possession of privileged information which they should not have. They may have to withdraw and new prosecutors appointed. That was the problem confronted in Lee v The Queen,[16] although that case concerned self-incrimination privilege rather than legal professional privilege.
[35] The approach which should be adopted by a lawyer in the position which Mr Stitt found himself is that once approached by the prosecution:
prepare an affidavit in response to the assertions made by the client. That affidavit will no doubt contain privileged information;
send the affidavit to the former client's current solicitors, not the prosecution, and seek instructions as to whether the client accepts that the privilege has been waived;
[41]
[38] It was not contentious that both the solicitors and counsel acting for Mr McNicol at the time he entered his plea had formed the view that the case against him was strong. The Crown brief was not before me on the application but there was a "statement of facts" in a form commonly used in sentencing proceedings. It was accepted that the statement of facts contained an accurate description of the case against Mr McNicol. A summary follows.
[39] A package which travelled from Cameroon via Singapore to Australia with a waybill number of 3581272096 was intercepted by Australian Border Force officers at Brisbane Airport on 31 December 2017. The package contained mechanical parts and 1044.5 grams of substance containing 547.3 grams of pure methylamphetamine.
[40] The real issue on any trial is as to Mr McNicol's knowledge of the contents of the package. That question is determined by drawing inferences from the Crown case, with the possibility that Mr McNicol may give evidence at any trial.
[41] The package was addressed to Mr McNicol's mother at her home address which was where Mr McNicol was living at the time. The courier was DHL.
[42] A subsequent search of Mr McNicol's residence revealed a mobile telephone with a service registered to him. An examination of that telephone revealed that a person using the user name "Gussssss" had, at some time, sent a screenshot to Mr McNicol of another message from "David2". It was impossible to determine when the message from Gussssss was sent to Mr McNicol's telephone, but the screenshot message showed a date, 6 January 2018 and referred to DHL consignment number 3581272096.
[43] Further analysis of Mr McNicol's telephone showed that he had contacted Gussssss on 43 occasions between 29 January 2017 and 31 January 2018.
[44] On 2 January 2018, a couple of days after the package was intercepted, a telephone call was made from Mr McNicol's mobile telephone to DHL inquiring about progress of shipment 3581272096. Records of the DHL call centre noted that call as being made from "Paul".
[45] Mr McNicol was interviewed by police some time after the package was intercepted. The summary of that interview contained in the statement of facts is:
[42]
"a. He had no knowledge of the package and did not agree to accept the package for anyone;
[43]
Before moving back to his mother's house, he lived in a share-house with a Mark Garcia that he referred to as 'Gus'. Gus was previously a friend but they had had a falling out. He thought Gus might have hacked his phone, or organised for him to be set-up to make it look like he (Gus) had nothing to do with it;
He was aware that Mark Garcia had been 'in trouble before for importing ... precursors', and was associated with 'high level' people who make drugs like 'crystal meth';
He could not explain how the parcel came to have his mother's name on it, his neighbour's address,[17] or his phone number;
He could not explain why there was a record of his phone having called DHL, and suggested that someone hacked his phone;
He did not recall receiving a message from Gus with a screenshot of the DHL consignment and he did not know who 'David 2' was."
[44]
[46] Subsequently, Mr McNicol swore a statutory declaration which he provided to the prosecution. The statutory declaration was made on 20 August 2018 which was about five months after the search of his mother's house and about three months after he was interviewed by police.
[47] In the statutory declaration, Mr McNicol said that Mr Garcia and he had spoken in early December 2017 and Mr Garcia asked him if he would like to try "a one month supply of legal health peptides". That, Mr McNicol said, is what he believed was in the package.
[48] The statement of facts records the prosecution's rejection of the peptides explanation, but the acceptance of Mr McNicol's criminal liability on a limited basis as:
[45]
"29. The defendant was complicit in importing a marketable quantity of methylamphetamine because he intended that his conduct would aid in the commission of an offence by another person, but he was reckless as to the particular nature of the offence that the other person committed. In agreeing to take delivery and monitoring the arrival of the package, the defendant intended to aid another person in the commission of an offence, however he was reckless as to the substance that was being imported. In all of the circumstances, the defendant was aware of a substantial risk that the package contained a border controlled drug and having regard to the circumstances known to him it was unjustifiable to take that risk."
[46]
[49] There was evidence that Mr McNicol's mental health was compromised at the time he entered the plea of guilty, and at other times.
[50] In 1957, in R v Presser,[18] Smith J explained the principles governing the assessment of an accused's fitness for trial. The "Presser test" has been broadly adopted and applied ever since.[19] It was not submitted to me that Mr McNicol was not fit to plead. His case was:
the plea was not a voluntary one as he was overborne by pressure from his lawyers; and
his mental health made him especially vulnerable to that pressure.
[51] Mr McNicol described his mental health issues in his affidavit in these terms:
[47]
"18. I have been diagnosed with a number of mental health conditions.
[48]
I was diagnosed with Depressive State Disorder by Dr John Brownhill in April 2021.
I was diagnosed with Anxiety Disorder by Dr John Brownhill in April 2021.
I am currently being treated for my mental health conditions by Dr John Brownhill who is a Psychologist and practices at Impact Health, Suite 1, Level 2, 3 Short Street, Southport."
[49]
[52] Various medical reports and other materials were before me, but none of the doctors or other health professionals who authored the documents were called to give evidence.
[53] Dr John Mullett, Mr McNicol's general practitioner, reported on 10 February 2021:
[50]
"There has been a previous head injury with deformity palpable in the left frontal region. A CT examination was made 4th June 2018 and results were inconclusive and need to be followed up.
[51]
A current CT is required and this would be best done in the community so as to get the optimal investigation done and any other investigations which may be indicated."
[52]
[54] In a later report on 24 June 2021, Dr Mullett said:
[53]
"Paul has been taking Oxycodone SR for many years and has been unable to reduce this below 240mg/day. There was a head injury approximately 1993. He can be vague at times and keeps questionable company. He has been referred to a pain clinic which he attends. He has a degree of lack of insight and judgement."
[54]
[55] Psychologist, Kirsten McArthur, conducted a cognitive assessment of Mr McNicol on referral from John Brownhill, Clinical Psychologist. Her report is dated 26 May 2021. She conducted various tests and concluded:
[55]
Mr. McNicol is a 55-year-old man referred to Impact Health for cognitive assessment and counselling. He was pleasant and cooperative during the sessions.
[56]
The DASS 21 revealed that Mr. McNicol was experiencing extremely severe symptoms of depression and severe symptoms of stress in the past week. His scores on all of the RAVLT recall trials were below the mean score. Mr. Nicol's score for recognition was 12 out of 15. This score is above the mean score for his age and education level, (13.4). He was unable to switch tasks from Part A to Part B of the TMT. Mr. McNicol's performance on the fluency sub scale of the ACE-R was below the mean score. His MMSE score was also below the mean score. Mr. McNicol's scores on all of the NuCoG sub scales except for language was below the mean score. His total score is 91.5. This score is just below the total mean score for his age.
[57]
Mr McNicol's test results in this report indicate a need for further testing and neurological referral. Mr. McNicol may benefit from ongoing counselling for an Adjustment Disorder as well as cognitive remediation to assist with his memory difficulties."
[58]
[56] That testing occurred about three years after Mr McNicol's arrest.
[57] Mr Brownhill is Mr McNicol's treating psychologist. He records diagnosing Mr McNicol "... with depression, melancholic, partially remitting, and relatively untreated". That assessment was reported in Mr Brownhill's letter of 24 June 2021 and is based on consultations with Mr McNicol in 2021.
[58] Under cross-examination, Mr McNicol mentioned having been diagnosed with post-traumatic stress disorder. This exchange occurred:
[59]
"Is the central difference that you say - that you were coerced into pleading guilty on the charge that's before this court?---That's only one - that's only one factor.
[60]
Well, what are the other factors?---That I've been diagnosed with a form of PTSD which comes about when I'm around violent, loud, aggressive situations, which has been stated affects my judgment and causes me all sorts of mental confusions and conditions and things like that.
[61]
All right. So who diagnosed you with PTSD?---Dr Bill Follent, from Tweed Banora Medical Centre.
[62]
And when was that diagnosis made, Mr McNicol?---That was made over 10 years ago, after he'd known me for about 10 years.
[63]
All right. So when is the last time that you saw that particular doctor?‑‑‑Approximately three weeks ago."
[64]
[59] Ms O'Connor cross-examined Mr McNicol on the medical evidence, but only in a limited way. Her point was that the evidence had been obtained for the purposes of the sentencing hearing after the plea had been entered. She submitted that by gathering evidence to present at the sentencing hearing, Mr McNicol had accepted that he had pleaded guilty and was proceeding on that basis.
[60] Ms O'Connor did not challenge any of the medical evidence, including Mr McNicol's assertions of suffering post-traumatic stress disorder.
[65]
The circumstances leading to the plea of guilty
[66]
[61] Mr McNicol gave evidence that he was not a good historian. Mr McNicol's brother, Garry, was only a witness to some of the interactions between Mr McNicol and his lawyers. Mr McNicol's mother did not provide an affidavit and was not called to give evidence.
[62] Mr Stitt's evidence was the most reliable account of the major events. He gave evidence of various telephone conversations and various conferences held in person with Mr McNicol. The participants in those were, variously, Mr McNicol, Mr Stitt, counsel briefed by Mr Stitt, Mr McNicol's brother and his mother.
[63] No affidavit was supplied by counsel who was at some of the conferences and, as already observed, no affidavit was provided by Mr McNicol's mother. No point was taken by either party as to the absence of those witnesses.[20]
[64] On 25 May 2020, Hannay Lawyers received a grant of legal aid to represent Mr McNicol. At that point, the court had been informed that the matter would proceed to trial, but there was no current trial listing. On 26 May, Mr Stitt had a brief telephone conversation with Mr McNicol and there was a conference held on 26 June 2020 where Mr Stitt, defence counsel and Mr McNicol were present. File notes from that conference were not before me. That was because those notes contain Mr McNicol's trial instructions. As earlier observed, privilege was maintained over those communications.
[65] On 9 September 2020, Mr Stitt attended another conference with counsel and Mr McNicol. At that conference, Mr McNicol was advised that the Crown did not have to prove his actual knowledge of the contents of the package. They only had to prove "recklessness". That would, on the instructions that Mr McNicol had given, be an obstacle to successfully defending the prosecution. The conference ended on the basis that Mr McNicol would attempt to gather more evidence in his defence.
[66] On 14 October 2020, Mr Stitt conferred with Mr McNicol and advised him that the Crown was seeking a trial listing in February 2021. Recklessness was again raised for discussion and Mr McNicol was given some advice about that concept. The conference ended on the basis that Mr McNicol would attempt to gather more evidence concerning the involvement of Mark Garcia.
[67] The next day, the trial was listed to commence before Jackson J on 15 February 2021. Another conference occurred on 4 February 2021. At that conference was Mr McNicol, Mr Stitt and defence counsel. Mr McNicol said that he had sustained frontal lobe damage in an accident which had resulted in early onset dementia. He was asked to produce evidence to confirm that. Defence counsel told Mr McNicol that he was likely to be convicted because the jury would inevitably find that he was at least reckless. Defence counsel advised that it was sensible to attempt to negotiate with the Crown to accept a plea of guilty on the basis of recklessness. Instructions were given by Mr McNicol to defence counsel to raise that with the prosecutor.
[67]
"I have carefully considered all the issues involved with my plea of guilty and do not require any further time to consider my decision nor did I require any further independent advice before making this decision to plead guilty.
[68]
I am satisfied and confident with all the advice I have received from my legal representative. I have no complaints in relation to any dealings with my legal representative including fees and disbursements in relation to this matter or the general carriage of my matter."
[69]
[82] In cross-examination, Mr Stitt said that he could not actually remember taking Mr McNicol through the plea of guilty instructions. He said that was his practice. Also, his file note says:
[70]
[83] I find that Mr McNicol was taken through the plea of guilty instructions.
[84] On 9 March 2021, Mr Stitt conferred on the telephone with Mr McNicol. This concerned Mr McNicol arranging for a psychologist's report and other material in preparation for sentence.
[85] As earlier observed, on 12 March 2021, the sentence was listed for hearing on 26 May. The sentence did not proceed on that day but there was a conference between Mr Stitt, Mr McNicol, defence counsel and Mr McNicol's brother, Garry. Mr McNicol wished to adjourn the sentence to obtain further medical material. There was no suggestion from Mr McNicol at that point that his plea had not been voluntarily entered or that he wished to apply to set the plea aside.
[86] Mr McNicol gave signed instructions to seek the adjournment. Those instructions were in these terms:
[71]
"I understand that I signed plea instructions and was arraigned on this offence on 12 February 2021. I understand that the sentence was adjourned for me to obtain material with relation to a brain injury that was first identified in 2018.
[72]
I have since been engaging with a psychologist and have undertaken neurological testing, however I have not yet obtained the scans, despite the referral being made some time ago. I have since changed health professionals, and the psychologist wants to use his own medical team.
[73]
I instruct my legal representatives to make an application for an adjournment, I understand that the application is opposed by the Crown. I understand that the decision is up to the Judge and my sentence may proceed today."
[74]
[87] The sentencing was adjourned and was relisted for 25 June 2021. On that day, there was a conference between Mr McNicol, defence counsel, Mr Stitt, Mr McNicol's mother and his brother, Garry. There was a discussion about the psychological report of Mr Brownhill. Mr Stitt expressed the view that it was of little use. Discussion ensued about that issue. Mr McNicol indicated that it was the lawyers' fault that the matter was not properly prepared as they should have conferred with the doctor and the psychologist. There was discussion about that. Mr McNicol's mother then queried how Mr McNicol could have pleaded to a case of aiding and abetting when no primary offender not been charged. She expressed the view that there was no case against Mr McNicol. Mr McNicol's mother then alleged that Mr Stitt and defence counsel had forced Mr McNicol to plead and that "you threw stuff around and made him". The lawyers then formed the view that they could no longer act for Mr McNicol.
[88] A further conference occurred on 25 June 2021 between Mr Stitt, defence counsel, Mr McNicol and his mother and brother. Mr Stitt's note of the final exchange at that conference is:
[75]
[89] As already observed Mr McNicol gave evidence before me and was cross-examined. He was slow in his many of his responses to questions and was very vague. He could not recall dates and times and was confused about the chronology of events. During cross-examination, he mentioned various matters which had not been stated in his affidavit. He often responded to the prosecutor's questions to the effect that he could not recall the particulars of events and conversations.
[90] While those factors affected my assessment of his reliability, I do not regard them as affecting his credibility.
[91] Mr McNicol said that in the conference of 12 February, his lawyers began yelling and he became overwhelmed.[21] He continually told me that he did not wish to plead guilty.
[92] The other witness to these conversations, or at least some of the conversations, was Mr McNicol's brother, Garry. In his affidavit, he swore this:
[76]
"6. Prior to the arraignment on 12 February 2021 there was a conference held in a conference room at the Supreme Court building in Brisbane. At this conference there was myself, my brother Paul Clark McNicol ('Paul'), my mother Ms Shirley McNicol ('Shirley'), Mr Hugh Stitt (Hugh) and Mr Scott Lynch (Scott).
[77]
During the conference on 12 February 2021, both Hugh and Scott appeared agitated. Hugh was using a forceful tone when addressing my brother about his prospects of success at trial.
Hugh was raising his voice when addressing Paul. Paul and I were seated during the conference and Hugh stood up when addressing Paul.
Shirley asked Hugh about aspects of the case against my brother in relation to other people who may or may not have been charged in connection to the alleged offending. Hugh became agitated at my mother and spoke over the top of her by raising his voice and did not allow her to finish her questions.
Hugh refused to answer the questions of my mother and I.
Scott then slid a small leather bound object across the table at a fast pace towards my mother in a forceful manner. The object stopped immediately prior to hitting my mother who was sat at the opposite end of the table to Hugh.
This action caught me by surprise as it appeared to come without warning. My mother had not requested to be shown anything by Hugh.
Scott and Hugh spoke to Paul about the difference in sentence if he were to plead guilty to the charge on a 'reckless' basis as opposed to going to trial and being convicted.
I do not recall Paul being taken through any documents to do with him pleading guilty and I do not recall seeing Paul sign any documents to do with pleading guilty."
[78]
[93] Garry McNicol also said in his affidavit that he spoke to his brother after the plea of guilty had been entered. He said, "He seemed to be non-responsive with his head down and refusing to make eye contact with me".
[94] Garry McNicol was cross-examined and accepted that he left the room during the conference on 12 February 2021 for a period. That probably explains why he did not see his brother being taken through or signing the plea of guilty instructions which he obviously did sign. It was suggested to him that an object was not slid across the table to his mother, but he insisted that it was. He also maintained that Mr Stitt stood on some occasions, however, accepted that the position of people in the room changed at different times.[22] He said that his view was "... It was quite noticeable that there was agitation at proceedings"[23] and that there appeared to be time restraints.
[95] Mr McNicol's brother was also present at the conference of 26 May 2021. He accepted under cross-examination that the major concern on that day was adjourning the sentence. He accepted that it was his mother who raised the issue of Mr McNicol maintaining his innocence. He insisted that both Mr Stitt and defence counsel raised their voices. He described the conduct as "oppressive, overbearing ...".[24]
[96] In his affidavit, he described the meeting as:
[79]
"20. On 25 June 2021, I attended a conference with Paul, Shirley, Scott, Hugh in a conference room at the Supreme Court in Brisbane.
[80]
I recall that my mother raised concerns about Paul not wanting to plead guilty any more.
Whilst in the conference room, Hugh[25] said to me words to the effect of 'I never believed Paul was innocent and no jury would acquit him anyway'.
I do recall Scott or Hugh asking Paul whether he wanted to plead guilty and I do recall Paul confirming he wished to plead guilty. I noticed that Paul was acting very strange and not like his usual self."
[81]
[97] It is well-established that a court may set aside a plea of guilty at any time before sentence is passed.[26]
[98] It is also well-established that on an application such as this, the question is not whether Mr McNicol is in fact guilty of the offence charged or whether he accepts that he is in fact guilty. The issue is whether a miscarriage of justice has occurred as a result of the entry of a plea of guilty.
[99] A plea of guilty made on arraignment in public is, prima facie, conclusive of the issue of guilt of the accused for the offence charged. In Liberti v R,[27] Kirby P, as his Honour then was, observed:
[82]
"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ..."[28]
[83]
[100] In Meissner v The Queen,[29] Dawson J observed:
[84]
"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."[30]
[85]
[101] Ms O'Connor put the Crown case on the present application on this basis:
[86]
"MS O'CONNOR: Your Honour, could I address a couple of key points. It's - it doesn't seem to be in dispute between the parties that Mr McNicol never accepted at any stage that he was in - in fact guilty of the offence. He - - -
[87]
MS O'CONNOR: No, and it doesn't, because it was still a matter for him to make a forensic choice to plead guilty, which is what the Crown says he did. The Crown says he did that because effectively he was offered the lowest of bases, because the trial he was facing- and your Honour has inferred, and perhaps it could've been made clearer from my side, but he was facing a trial where it was being alleged that he had a positive intent to import that substance; alternatively, he faced a recklessness. And so he had a forensic - - -"
[88]
[102] Here, the case against Mr McNicol was quite strong in my view. The evidence from the analysis of his mobile phone showed that he was expecting the package. Importantly, when interviewed, he distanced himself from the package. That was evidence, in my view, capable of demonstrating a consciousness of guilt.[31] The lawyers acting for Mr McNicol at the time of the plea realised the strength of the Crown case. They also realised that there was an opportunity to negotiate a favourable basis for a plea of guilty and they also knew that Mr McNicol's sentence would be less on a negotiated plea of guilty than it would be after a trial.
[103] As observed by McMurdo P (as her Honour then was) in R v Ogborne:[32]
[89]
"Argument or advice that seeks to persuade an accused to plead guilty is not improper conduct, no matter how strongly the argument or advice is put."[33]
[90]
[104] I accept that both Mr Stitt and defence counsel gave strong advice to Mr McNicol that a plea of guilty on a negotiated factual basis was his best course. I also accept that, especially on 12 February, with Jackson J waiting to deal with the matter, there was pressure in the conference and pressure on Mr McNicol.
[105] It is not necessary to resolve the factual conflict between Mr Stitt and Mr McNicol's brother as to whether Mr Stitt said that he thought Mr McNicol was guilty of the offence.[34] Both Mr Stitt and defence counsel, in giving pragmatic and honest advice to Mr McNicol, said that they thought a jury would convict. In other words, a jury would not believe Mr McNicol's account. There is a fine line between the lawyers giving advice to the effect that no-one would believe Mr McNicol on the one hand, and them personally not believing him on the other. Nothing turns on this.
[106] It is also not necessary to resolve the question as to whether some object was slid along the table towards Mr McNicol's mother. As I have said, the conference of 9 February was a tense one and I have no doubt that tempers were fraying.
[107] However, the objective evidence, in my view, strongly contradicts Mr McNicol's assertion that he did not voluntarily enter a plea of guilty after considering the advice given to him and concluding that it was in his best interests to follow it. That evidence is:
There were various conferences in the lead up to 9 February 2021.
In the conference on that day, Mr McNicol said that he would consider the advice given and give instructions by close of business.
He did not come back to his lawyers until the next morning. After considering the matter overnight, he indicated a plea of guilty.
His position had changed by 12 February 2021, but the inference is that change was occasioned by influence from his mother and brother.
After further discussion in conference about the case on 12 February 2021, Mr McNicol was left to consider the matter with his mother and brother. He instructed a plea of guilty.
He was taken through the instructions to plead guilty document which explained the basis of his plea and the consequences of it. It contains an acknowledgment that the plea was entered voluntarily.
[7] These principles were explained by Lockhart J in Trade Practices Commission v Sterling[1979] FCA 33; (1979) 36 FLR 244 at 245-246 and his Honour's approach was approved by Deane J in Waterford v The Commonwealth[1987] HCA 25; (1987) 163 CLR 54 at 87.
[12] See cases such as Osland v Secretary, Department of Justice(2008) 234 CLR 275, Viterra Malt Pty Ltd v Cargill Australia Ltd[2018] VSCA 118; (2018) 58 VR 333, GR Capital Group Pty Ltd v Xinfeng Australia International Investments Pty Ltd[2020] NSWCA 266 and Stav Investments Pty Ltd v Taylor; LK Group Investments Pty Ltd v Taylor[2022] NSWSC 208.
[34] See paragraph [96] of these reasons; paragraph 22 of Garry McNicol's affidavit.
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
McNicol [2022] QSC 67
Cases Cited (13)
(1994) 52 FCR 516
(1992) 173 CLR 653
(1999) 201 CLR 49
(1995) 185 CLR 83
(1959) 101 CLR 298
(2014) 253 CLR 455
(1999) 201 CLR 1
(1996) 184 CLR 501
(1995) 184 CLR 132
(2008) 234 CLR 275
(1979) 36 FLR 244
(2018) 58 VR 333
(1987) 163 CLR 54
[16] COVID-19 then intervened. The effect of the pandemic was that the court, for a period, did not conduct jury trials. On 25 March 2020, the trial was delisted and the matter was listed for mention on 27 May 2020. That mention date was administratively vacated and a new mention date of 17 July 2020 was set. By this stage, Hannay Lawyers, who had represented Mr McNicol when the charge was still in the Magistrates Court, had been retained. The review day of 17 July 2020 was administratively vacated while Mr McNicol dealt with various issues concerning funding and instructing his lawyers.
[17] On 9 October 2020, Hannay Lawyers advised the court that they had lost contact with Mr McNicol and on 15 October 2020, the matter was relisted for trial commencing on 15 February 2021. However, on 10 February 2021, Hannay Lawyers advised both the CDPP and the court that the matter had resolved. A plea of guilty would be entered and there would be no trial.
[18] As already observed, Mr McNicol was arraigned and entered a plea of guilty on 12 February 2021 and the allocutus was administered. An adjournment of the sentence was sought by Mr McNicol to enable him to obtain medical evidence in mitigation of sentence. That adjournment was granted and Mr McNicol's bail was enlarged.
[19] The matter of sentence was mentioned on 12 March 2021 and listed for hearing on 26 May 2021. The business of the court could not accommodate the sentence being heard on that day and so the sentence was adjourned to 25 June 2021. The sentence did not proceed on 25 June. There were again difficulties with Mr McNicol's legal representation. Hannay Lawyers were given leave to withdraw.
[20] What followed was a series of mentions on 9 July, 23 July, 30 July and 13 August 2021. These mentions all concerned Mr McNicol's attempts to obtain legal representation.
[21] The matter was mentioned on 20 August 2021 and Legal Aid appeared. The court was advised that Legal Aid had taken carriage of the matter in-house and Legal Aid lawyers were reviewing the brief.
[22] The matter was mentioned yet again on 17 September 2021 and yet again there appeared to be problems with Mr McNicol's legal representation. Legal Aid were granted leave to withdraw and new solicitors, Cridland & Hua Lawyers, were now on the record. Cridland & Hua instruct Mr Wilson of counsel in the application before me.
[23] On 8 October 2021, at a mention, the court was informed that an application would be made to vacate the plea of guilty entered on 12 February 2021. A week later, on 15 October 2021, directions were made for the filing of the application and supporting material and the application was listed for hearing on 29 November 2021. It then appeared that Cridland & Hua had lost contact with Mr McNicol. Those issues were resolved but the hearing was ultimately vacated. The matter came before me on 14 April 2022.
[29] Very generally speaking, legal professional privilege will apply to communications between lawyers and a client where the client is charged with a criminal offence and the lawyer is acting in defence of the charge. Also very generally speaking, where a client swears affidavits in an application such as this and swears to communications with his lawyers, legal professional privilege will be waived at least to some extent.[13]
[30] Here, Mr McNicol's solicitors did not disclose to the Crown what they described as Mr McNicol's "trial instructions". Otherwise, they seem to have given no consideration to any issues concerning legal professional privilege. During the application, this exchange occurred when Mr Stitt was giving evidence:
tell the prosecution that an affidavit has been prepared, that it contains privileged information and that instructions have been sought from the former client as to whether the privilege has been waived;
if the former client accepts that the privilege has been waived, then the affidavit can of course be delivered to the prosecution. If the instructions are that there is a dispute as to questions of privilege, then the prosecution should be informed of that and told that the lawyer will be in court on the hearing of the application with the affidavit and ready to give evidence and will abide any ruling of the court on the issue of privilege.
[36] If that procedure is adopted, then in the case of any dispute, the court rules on the privilege and the lawyers are protected by the court's ruling in relation to any disclosure that is subsequently made.
[37] In the end there was no dispute about privilege in the present case. That though was as a result more of good luck than good management.
[68] Another conference occurred on 8 February 2021. Present on that occasion were Mr McNicol, Mr Stitt and defence counsel. Defence counsel reported that he had conferred with the prosecutor who would not accept that Mr McNicol believed the contents of the package were peptides. She was prepared to accept a plea on the basis of recklessness. Mr McNicol said that he might consider a plea on that basis provided that the sentence could be guaranteed to be less than 12 months. That was significant to issues of Mr McNicol's deportation. Mr McNicol is a citizen of New Zealand.
[69] Mr McNicol told his lawyers that:
he wished to contest the admissibility of the interview;
there had not been a full investigation into Mark Garcia; and
there had been no full investigation as to the origin of the drugs.
[70] The last two factors were thought by Mr McNicol to weaken the Crown case.
[71] Defence counsel gave advice to Mr McNicol that the Crown case was strong and it was unlikely that an application to exclude the interview would be successful. Counsel again told Mr McNicol that he was likely to be convicted and that his sentence would be less upon a plea of guilty on the basis of recklessness than after a trial.
[72] Mr McNicol told his lawyers that he had obtained advice from other lawyers who had told him it was appropriate to have the trial adjourned. Mr McNicol then spoke to his partner before advising his lawyers that he wished to proceed to trial and rely on some brain scans that he had was obtaining. Mr McNicol considered that the brain scans may be relevant to his defence.
[73] On 9 February 2021, there was a telephone conference between Mr Stitt, Mr McNicol and his partner, Lisa. That conference took about half an hour. Lisa pointed out that the drugs did not reach Mr McNicol who has admitted nothing. Mr McNicol repeated that he wished to have the interview excluded. Mr Stitt advised that the circumstantial case was strong against Mr McNicol and by proceeding to trial he would lose any benefit of a plea of guilty. Mr McNicol advised Mr Stitt that he would give him further instructions by the end of the day.
[74] That did not occur but there was another conference on 10 February. This was by telephone and was between Mr McNicol, Mr Stitt and defence counsel. Mr McNicol advised his lawyers that he intended to plead guilty on the basis of recklessness. He was advised that in order to delist the trial, the Crown required him to be arraigned and plead guilty. He was also advised that the Crown opposed any further grant of bail. Defence counsel understood that further brain scans had been arranged and was proceeding on the basis that they were relevant to sentence. Defence counsel thought that it was necessary for Mr McNicol to be in the community on bail to enable the scans to be conducted. That was one factor that counsel would seek to rely upon in order to secure bail for Mr McNicol. Counsel advised that a letter should be obtained from Mr McNicol's general practitioner explaining the need for the scans. That document would then be used in the application for bail after the plea was entered.
[75] The Crown was informed of Mr McNicol's intention to plead guilty and an arrangement was made for Mr McNicol to be arraigned on 12 April 2021.
[76] On that day, a conference was held in defence counsel's chambers and the court building. Present were Mr McNicol, his mother, Mr Stitt, his brother Garry and defence counsel. The conference commenced at 9.00 am.
[77] Mr McNicol instructed that he wished to maintain a plea of not guilty and proceed to trial. Mr McNicol's mother and brother, Garry, observed that the primary offender, Mr Garcia, had not been investigated and that there was no evidence of any involvement in the importation by Mr McNicol. Mr Stitt and defence counsel explained their opinion that the circumstantial case against Mr McNicol was strong. They pointed out that on sentence based on the negotiated facts, Mr McNicol may receive a sentence in the order of six years, but after trial, perhaps eight to nine. Mr McNicol's mother and brother thought it significant that Mr McNicol was on medication at the time of the alleged offending. Defence counsel and Mr Stitt explained the Crown case and advised that it was likely that Mr McNicol would be convicted and be found to have been actively and knowingly involved in the importation, not just reckless.
[78] The matter was called on before Jackson J at 10.00 am on 12 February 2021. The Crown appeared but there was no other appearance. The matter was stood down. At 11.29 am, Mr McNicol and his lawyers appeared, as did the Crown prosecutor. Defence counsel asked for some further time to obtain instructions. That was granted by his Honour and the matter was stood down again.
[79] Back in counsel's chambers, Mr McNicol was left with his mother and brother to confer alone. Then, Mr Stitt and defence counsel gave some further advice about the effect of some Commonwealth legislation and the prospects of success at trial. Mr McNicol then indicated that he would enter a plea of guilty. A document styled "Plea of guilty instructions" was produced. This attached the indictment and the statement of facts to which I earlier referred. That document was signed by Mr McNicol.
[80] In the plea of guilty instructions, Mr McNicol:
acknowledged his right to plead not guilty;
acknowledged receiving advice that he would likely be convicted should he proceed to trial;
acknowledged that his lawyers negotiated a basis upon which he would plead guilty and that was reflected in the statement of facts attached to the document;
acknowledged his understanding of the seriousness of the charge and that he would be likely to receive a head sentence of between five and seven years;
acknowledged that he was to plead guilty that day but may not obtain bail.
[81] This appears in the document:
He pleaded guilty in open court.
There was no indication of any change of mind until the morning of 25 June 2021. Up to that point, he had been taking steps to prepare for sentence, consistently with his plea.
The first indication of a change of plea came on 25 June 2021, again, when his mother and brother were involved. When asked whether he wanted to change his plea, he said "No", although after his mother and brother raised whether he had issues with the Crown asking for seven years imprisonment, he said he did and wanted to overturn his plea of guilty. That indicates more of a disagreement between Mr McNicol and his mother and brother, than his plea was not voluntarily entered.
[108] I find that Mr McNicol reluctantly entered his plea of guilty, but he did so voluntarily after accepting his lawyers' advice and coming to the conclusion that was his best course of action.