R v Raymond Kennedy [2014] NSWSC 1921 | Case summary

The Evidence Relevant to the Determination of the Application

The applicant gave evidence by way of both affidavit dated 17 June 2014 (Ex. A) and oral evidence. His oral evidence was incomplete at his own election, a feature to which I shall return. The applicant additionally relied upon Exhibit B, a report of Mr. Anthony Diment, a consultant psychologist, supplemented by oral evidence called from Mr. Diment.
In his affidavit the applicant asserted that he bore no responsibility for the death of Mr. Davies, and had so instructed his legal representatives. He deposed that both his solicitor and his Counsel had been positive about his prospects of being acquitted of murder, until such time as the Crown served a transcript of statements made by the applicant's cousin and co-accused, Stephen Smith. Subsequently, the applicant asserted that his lawyers became "really negative" about his prospects at trial, and "kept at" him about pleading guilty. The applicant deposed by affidavit that, although never comfortable about the plea of guilty, he eventually entered it.
The applicant additionally gave evidence before the Court. He appeared to struggle with the process of giving evidence, and complained of feeling nervous and "not right". Despite his difficulties, the applicant was, however, able to answer his Counsel's questions in evidence in chief, until such time as he was asked about discussions he had had with his former solicitor concerning evidence of a shoe print left in blood at the scene of the murder, this being significant evidence in the Crown case against the applicant.
After some prevarication, and a request to return to his cell rather than continue with his evidence, the applicant eventually deposed that he had told his solicitor Mr. Wright that I don't know nothing about the shoes. I never ever seen the shoes before and, I don't know, I never ever seen them shoes before and they tried to say they were my shoes, but they ain't (T56:21).
Having been able to give this evidence, which was generally consistent with his assertions of innocence, the applicant in cross-examination manifested a complete inability to continue with his testimony. He repeatedly said that he was nervous, didn't feel right, and would prefer to return at a later date to complete his evidence. He specifically rejected (until later) the proposition that he was ill (T58:31), but maintained that he was nervous and didn't want to talk about the matter.
He was not able to give any explanation for the difference between his apparent engagement with the hearing when listening to evidence from the dock, and his inability to recall and discuss relevant events when in the witness box (T64:32).
Although directed to answer the questions put to him, the applicant continued to give his evidence in an entirely unresponsive way, saying little more than that he didn't feel right, and couldn't think properly. The witness was given a short adjournment to compose himself and - with the Crown's consent - to speak to his lawyers but, on resuming his evidence he generally continued in his refusal to answer in any meaningful way the questions put to him.
After an extended period of endeavouring to have the applicant answer the questions put to him, and in light of his continuing refusal to answer with anything other than assertions of not feeling right, the applicant was told to leave the witness box. I refused an application for an adjournment made by the applicant's Counsel at that point, because there was simply no reason to suppose that the applicant would endure the evidentiary process any better on another occasion. All indications were that he would not. It was evident that his refusal to answer questions was not due to any temporary illness from which he would recover or an inability to understand questions phrased in a straightforward way; it was due to a reluctance to answer those questions. Whether that was due to nervousness or as a result of a considered choice, I cannot determine.
The applicant's evidence must be viewed as incomplete, and largely untested in cross-examination. The weight to be afforded it is necessarily reduced.
In his eight paragraph affidavit the applicant gave a very brief account of the events surrounding the entry of his plea of guilty to murder.
He asserted that, from the date on which he was charged, he had instructed his legal representative that, although he had been present at the scene of the fatal assault upon the deceased, he had gone to the premises only to buy drugs, and he was not responsible for the death of Mr. Davies.
The applicant deposed that, after service by the Crown of the material originating from his co-accused his lawyers urged him to plead guilty and to do so quickly, so as to obtain such discount on sentence as may be available in recognition of the plea. The applicant asserted that both Mr. Wright and Mr. Trevallion kept at him about a plea of guilty. The only evidence provided by the applicant about the basis of his eventual decision to enter the guilty plea was Although I eventually pleaded guilty I was never comfortable with their advice because I didn't do what was alleged ([7] of Ex. B).
That assertion was not expanded upon in oral evidence, and nor was any explanation advanced by the applicant to account for his acceptance of his lawyers' advice.
Having regard to his conduct in the witness box, the psychological and psychiatric evidence is of some interest even beyond the evidence given by Mr. Diment and Dr. Olav Nielssen relevant to the applicant's accounts to each of the offence, or the circumstances surrounding the entry of the plea of guilty.
In relation to the applicant's cognitive and intellectual abilities, Mr. Diment assessed the applicant as cognitively impaired, although he noted that this assessment was in part based upon the applicant's illiteracy, compounded by possible brain damage from drug use or head trauma. Despite the applicant's low intellectual functioning, Mr. Diment was able to illicit a comprehensive history from the applicant, who demonstrated an ability to both concentrate and comprehend adequately during the examination and assessment process.
The applicant was prepared to discuss both the circumstances surrounding the death of Mr. Davies, and his entry of a plea of guilty to murder, with Mr. Diment, a psychologist retained on his behalf by his solicitor.
Dr. Nielssen, a forensic psychiatrist who was asked to interview the applicant by the applicant's former lawyers in readiness for the sentence hearing, was similarly able to elicit the applicant's history from him, although the applicant refused to discuss the detail of the circumstances surrounding the commission of the offence with him, asserting that he would only discuss this with his solicitor and barrister.
In relation to the applicant's level of intellectual performance Dr. Nielssen concluded that the applicant was unimpaired in terms of his registration and retrieval of information and, from his vocabulary and reasoning ability, he functioned in the lower half of the normal range. The doctor noted the applicant's functional illiteracy.
There is nothing in the psychological or psychiatric evidence that suggested that the applicant was incapable of giving an account of relevant events to the Court; indeed, the evidence was to the contrary.
In terms of matters relevant to the circumstances surrounding both the assault of the deceased and the entry by the applicant of the plea of guilty to murder, Mr. Diment recorded that the applicant had been adamant to him that he had not planned the offences. Although the applicant told Mr. Diment that his memory of the incident was "not great," he claimed that "I do not think I had any idea of hurting anyone".
As to the entry of the plea, Mr. Diment recorded the applicant's account that, although he had felt "pressurised" by his lawyers, he had agreed with their advice to plead guilty. He had, however, been worried about saying he was guilty of something that he had not done.
Mr. Diment commented that the applicant had not elaborated on the circumstances of the assault on the deceased, other than to say he didn't think he had had any idea of hurting anyone. He had not mentioned a robbery, the intended theft of valuable coins, or the discussions he had had with family members prior to entering the plea of guilty.
The applicant's case was, in summary, that he had entered a plea of guilty to an offence he did not commit because he perceived that his former lawyers had placed pressure upon him to do so. In submissions, the applicant specifically disavowed any suggestion that the lawyers had in fact acted improperly, relying instead on the applicant's perception that they had done so.
The Crown relied upon evidence in affidavit form and as given orally by the applicant's former legal representatives, Mr. Trevallion and Mr. Wright, together with a report and oral evidence from Dr. Nielssen. The Crown's case on sentence, as it had been tendered to his Honour Justice Barr, was exhibited, as was the transcript of the earlier sentence proceedings.
It is useful to deal firstly with the evidence of Dr. Nielssen.
As noted, Dr. Nielssen, who was called in the Crown case, considered the applicant to be capable of giving a comprehensive history and an account of relevant events.
Significantly, and in contrast to the applicant's circumspect account to Mr. Diment of the assault on the deceased, the applicant told Dr. Nielssen that there was a plan to commit a robbery, with the intention of using money obtained during the robbery to buy drugs.
Dr. Nielssen deposed in oral evidence that, although he had no independent recollection of his interview with the applicant, and was reliant upon the report which he typed as the interview took place, he did not obtain any history from the applicant that included a denial of involvement in a robbery of the deceased, or a denial of involvement in the assault upon the deceased.
As to the entry of the plea, the applicant confirmed to Dr. Nielssen that he had entered a plea of guilty to the offence as described in the Crown's summary of facts, including as it did reference to evidence of DNA, footprints and a recording made via a listening device.
The Court also heard evidence in the Crown case from each of Mr. Trevallion and Mr. Wright.
Mr. Trevallion of Counsel deposed that, on reviewing the brief of evidence as it was around early March 2013, he formed the view that the Crown case against the applicant was reasonably strong, but that there was an arguable defence. He was at all times ready to conduct that defence on the applicant's behalf.
After some additional evidence was served by the Crown (relating to a shoeprint in blood left at the location where the deceased was assaulted, and recorded conversation involving Stephen Smith), Mr. Trevallion saw the applicant in person on a number of occasions, and spoke to him on the telephone, to explain the effect of the further evidence.
In part because of the applicant's evident difficulty in grasping the concepts of joint criminal enterprise and constructive murder, Mr. Trevallion discussed the evidence at length with the applicant's brother, who in turn discussed it with the applicant. Mr. Trevallion deposed that the applicant's principle concern in their discussions about a possible plea of guilty was the likely length of any custodial sentence. Indeed, at one point the applicant sought a guarantee from Mr. Trevallion as to the length of sentence that would be imposed upon entry of a guilty plea. He was told that no guarantee could be given, although it was explained to him that a plea entered before the trial date was likely to attract a greater discount on sentence than one entered on the trial date, because of its greater utilitarian value.
Mr. Trevallion deposed that, in late October 2013, he received a telephone call from the applicant who told him that he had decided to plead guilty to murder. Counsel thereupon arranged to see the applicant at Parklea Prison, and did so on 1 November 2013. Written instructions - regrettably brief in content, although this may be attributable to the applicant's illiteracy - were obtained. In oral evidence Mr. Trevallion deposed that, at that conference and when the applicant instructed him as to the plea of guilty, he had no doubt that the applicant understood that he was pleading guilty to murder, and that he understood the basis of the Crown case for murder (T16:42 - 48; note the error in the transcript where "basis" is recorded erroneously as "basics").
The first suggestion of any issue with the plea came, to Mr. Trevallion's recollection, after the pre-sentence report prepared at the Court's request was received. The applicant's instructions to his then lawyers in relation to the plea of guilty were, as a result, discussed with the applicant and confirmed by him, probably on or around 18 December 2013. The applicant's then instructions were that he disputed the suggestion that he had known the reason for attending the deceased's house prior to going there.
When the sentence hearing listed for 28 February 2014 was not able to proceed, the applicant became upset about a number of matters, including his clothing, and aspects of the Crown facts. As a result, he was taken through the facts by Mr. Wright, indicating those discrete portions with which he disagreed.
The disagreement was largely connected with an alleged comment made by the applicant to two civilian witnesses (those for whom arrest warrants were issued) to the effect that he had known of a plan to rob the deceased of valuable coins kept in a safe at the deceased's home prior to attending the premises.
Mr. Trevallion regarded this dispute as of no significance to the integrity of the plea and continued in the view that the applicant both wished to plead guilty to murder and understood the basis upon which he had acknowledged his liability for the offence (T19:38 - 47).
Mr. Trevallion specifically denied placing any pressure upon the applicant in relation to his plea.
At some time after the entry of the plea of guilty, the applicant told Mr. Trevallion that the bloody shoe print found by forensic officers on a cupboard adjacent to the place where the deceased was assaulted was deposited by him in the course of taking a weapon away from a co-accused. The applicant instructed Mr. Trevallion that he saw Richard Smith striking the deceased with a hammer, and took the hammer from Smith. To put the hammer out of the reach of his co-accused he took a running jump at a cupboard, using it to gain more momentum in jumping to the top of the cupboard. He put the hammer on top of the cupboard in that way. His shoeprint was left on the cupboard.
In an earlier conference with Mr. Trevallion the applicant had attributed evidence of DNA recovered from the fingernails of the deceased that was consistent with his own to contact with the deceased, who had scratched or grabbed him when he tried to pull Richard Smith away from the deceased to end an assault by Smith.
Mr. Wright gave evidence via audio-visual link. Objection was taken to paragraphs 28 and 32 of Mr. Wright's affidavit and, as those portions of the document do no more than speculate about the applicant's understanding of particular matters and his state of mind, I disregard them.
Mr. Wright took initial instructions from the applicant, at a time when a Public Defender rather than private counsel was briefed. Mr. Wright deposed that the applicant's instructions evolved over time and, although his initial instructions were consistent with a plea of not guilty (T38:10), they changed over time to an acknowledgment of participation in the robbery of the deceased.
Initially the applicant said he had been outside the deceased's house as lookout for his cousins when they entered the premises, but he had subsequently entered the house, and thereafter participated in events. He told Mr. Wright that, whilst his co-accused were attempting to extract from the deceased the location of the key to a safe, he ransacked the house looking for the key and valuables (T35:01).
Mr. Wright described the applicant as "a strong minded person" (T34:17) who gave instructions in his own time.
The applicant gave Mr. Wright a different account to that separately given to Mr. Trevallion of two significant pieces of evidence relied upon by the Crown. In relation to the DNA recovered from the fingernails of the deceased, he said that he had tried to move the deceased, who was prone on the floor after having been assaulted by Richard Smith, into a more comfortable position, and the deceased grabbed him. In relation to the bloody shoe print, the applicant told Mr. Wright that, when ransacking the house, he was trying to get to something on top of the cupboard and deposited the shoe print on the cupboard in the process.
The applicant always maintained that he had not personally assaulted Mr. Davies, and he disputed the accounts of witnesses that he had acknowledged knowing of the plan to rob the deceased prior to the event, as well as the comments made by Stephen Smith recorded by listening device. Mr. Wright did not view these issues as relevant to the plea of guilty.

R v Raymond Kennedy

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Judgment (8 paragraphs)

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Cases Cited (6)

Cited By (5)