Solicitors: Michael Croke & Co (the applicant)
Solicitor for Public Prosecutions (the Crown)
File Number(s): 2012/206026
[2]
Judgment
On 5 December 2014 I heard an application from Raymond Kennedy ("the applicant") for leave to vacate a plea of guilty he had earlier entered to a charge of murder contrary to s.18(1)(a) of the Crimes Act 1900. Having heard evidence from a number of witnesses, together with submission from the parties, I refused leave. These are my reasons for that decision.
[3]
The History of the Matter
On or about 19 November 2010 Mr. Stanley Davies ("the deceased"), a man of 75 years who lived alone at his home in Dangar Street at Kempsey, was brutally beaten by intruders to his home, and left there, severely injured and probably unconscious, to die. He was found the following day and was immediately taken to hospital but, such was the severity of his injuries, he failed to respond to medical treatment, and died on 26 November 2014.
A police investigation ensued and, on 2 July 2012, the applicant was arrested and charged with the murder of Mr. Davies.
On 1 February 2013 a co-accused, Richard Smith, was arraigned upon an indictment charging him with the murder, and pleaded guilty. On 5 April 2013, the applicant and a third person charged with the murder, Stephen Smith, were ordered to stand their trial before the Supreme Court sitting at Port Macquarie, with a trial date fixed for 7 June 2013.
The Crown subsequently elected to try the applicant and Stephen Smith separately, and the applicant was separately arraigned. He entered a plea of not guilty to an indictment charging him with the murder of Mr. Davies, together with a charge alleging aggravated assault of the deceased with intent to rob, and his trial was re-listed, to commence on 30 September 2013 at Port Macquarie. That trial date was subsequently vacated.
On 6 November 2013 the applicant appeared before Barr J in the Supreme Court sitting in Sydney, and was again arraigned upon a charge of murder. He entered a plea of guilty to the charge. The Crown did not seek a plea to the second count of aggravated assault with intent to rob, the factual basis of that charge being relevant to and effectively subsumed in the circumstances of the murder. The plea to count 1 was accepted in full discharge of the indictment. The sentence proceedings were adjourned for hearing on 15 November 2013.
At the time of entering his plea, and for some eight or so months prior to that date, the applicant had been represented by Mr. James Trevallion of Counsel. Mr. Trevallion was instructed by Mr. Stephen Wright. Mr. Wright had acted for the applicant since October 2012.
Between receiving the brief and the date upon which the applicant entered a plea of guilty to the charge of murder, Mr. Trevallion had had at least six formal conferences with the applicant, and had spoken with him on other occasions. Mr. Wright had had even more overall contact with the applicant since being instructed than had Counsel.
The applicant's decision to enter a plea of guilty to count 1 of the indictment was recorded in writing prior to the applicant's arraignment as his instructions to his legal representatives. The relevant document was dated 1 November 2013.
On 15 November 2013 the sentence hearing commenced, although it was adjourned part-heard, a pre-sentence report which Barr J had ordered being unavailable at that time. The matter was further listed for sentence hearing on 28 February 2014. A dispute on a discrete aspect of the facts required the attendance of two witnesses to give evidence in the Crown case, and it was anticipated that those witnesses would be called on 28 February 2014.
On that date, the two Crown witnesses did not attend Court despite each having been served with a subpoena requiring attendance. Warrants were issued by the Court for the arrest of each and the matter was necessarily adjourned, to 7 March 2014 for further hearing.
On 7 March 2014 Mr. Trevallion advised the Court that his instructions and those of Mr. Wright had been withdrawn by the applicant. The applicant was able to speak with a duty solicitor from the Legal Aid Commission and the matter was again adjourned, so that the applicant might instruct alternative legal representatives.
Thereafter, in June 2014, the applicant filed the Notice of Motion which was before the Court for determination, seeking to vacate the plea of guilty entered on 6 November 2013 (Order 1) and to formally enter pleas of not guilty to the charges on indictment (Order 2).
In support of his application the applicant asserts that his then legal representatives improperly importuned him to enter a plea of guilty to count 1 of the indictment, and he did so as a result of this improper pressure, without fully comprehending the asserted basis of his liability for murder, and without any genuine consciousness of his guilt.
[4]
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.
[5]
Legal Principles
The principles to be applied in considering an application for leave to withdraw a plea of guilty are well settled. Ordinarily, the court is entitled to accept, and act upon, a plea of guilty entered by an accused person as a free choice made in his or her own interests. The plea itself constitutes an admission of the elements of the offence, being considered a cogent admission of guilt: R v SL [2004] NSWCCA 397; Charlesworth v R [2009] NSWCCA 27.
Whilst the court has the discretion to permit an individual to withdraw such a plea at any time prior to the imposition of sentence, the onus is on the applicant to demonstrate that leave should be granted. That burden can be a heavy one, since applications to vacate a plea of guilty are to be approached with caution:
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: Kirby J in Liberti (1991) 55 A Crim R 120 at 122.
See also R v ARG (NSW Court of Criminal Appeal, unreported decision of 2 August 1983); O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81; and R v Parkes [2004] NSWCCA 377.
In advancing an application for leave to vacate a plea of guilty, the onus is on the applicant to establish that a miscarriage of justice had occurred, such that the plea should not be permitted to stand as an admission of the commission of the offence.
Over the years, a number of circumstances have been found to amount to miscarriage of justice. While they are conveniently summarized by Spigelman CJ in Regina v Houra [2001] NSWCCA 61, and recently cited in Khamis v R [2014] NSWCCA 152, they are not exhaustive. Such circumstances have been held to include,
● where the applicant did not understand the nature of the charge: Ferrer-Esis (1991) 55 A Crim R 231 at 233;
● where there was a mistake or other circumstances affecting the integrity of the plea: Sagiv (1986) 22 A Crim R 73 at 80;
● where the plea could not be regarded as a free and voluntary confession of the offence;
● where the plea was induced by threats or other impropriety: Cincotta (NSW Court of Criminal Appeal, unreported decision of 1 November 1995).
●where the plea was not attributable to a genuine consciousness of guilt: Murphy [1965] VR 187 at 191; and
● where the plea was not made in circumstances indicative of a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501.
[6]
Consideration
Having considered the evidence and the submissions advanced by the parties I was not satisfied that there had been any irregularity in the circumstances in which the applicant entered his pleas of guilty on 6 November 2013, and nor had the applicant established that to refuse him leave to vacate his plea would be a miscarriage of justice.
Whilst concepts of joint criminal enterprise and constructive murder are not intellectually straightforward, and it can be readily accepted that they may be difficult for an accused person to understand, I do not accept on the evidence that the applicant did not understand his liability for murder, and did not accept his guilt for the crime, on the basis on which it was advanced.
It is apparent that Mr. Trevallion in particular, since he was located in Sydney and was physically closer to the prison in which the applicant was detained than was Mr.Wright, spent some considerable time endeavouring to explain how the applicant's legal liability for murder could arise. He was conscious of the applicant's difficulties in comprehending the relevant legal principles, and even enlisted the applicant's brother to assist in explaining the Crown case to the applicant.
I am not satisfied that the applicant did not understand the basis of his liability for murder, or that he did not freely and voluntarily accept that liability. The evidence supports a conclusion that the applicant entered his plea of guilty both as an acknowledgment of guilt, and having accepted his lawyers' advice that a plea of guilty entered prior to the trial date was likely to attract a discount on the sentence to be imposed.
Whilst I accept that the applicant always denied any physical participation in the assault upon Mr. Davies, that denial did not provide him with a defence to the Crown case. The evidence establishes that the applicant instructed Mr. Wright that he had become involved in the robbery of Mr. Davies, at a time when he knew that the deceased was being viciously assaulted and seriously injured to persuade him to part with his property. These instructions acknowledge liability for murder.
The applicant additionally acquiesced with the factual scenario placed before the sentencing Court by the Crown, other than to dispute that he had known of the plan to rob the deceased prior to going to the house, or had himself struck the deceased (evidence of Mr. Trevallion). Those matters disputed by the applicant did not affect the integrity of the plea.
That the applicant gave his legal representatives these instructions is supported to a degree by the account he gave Dr. Nielssen of having gone to the deceased's house to rob the deceased, with the intention of using any cash obtained to buy drugs. Whilst Dr. Nielssen had no independent memory of his consultation with the applicant, and was prepared to concede that the form of words used in his report might not be exact, he told the Court that he recorded what the applicant told him immediately by typing it into a document that became his report. Dr. Nielssen is an experienced forensic psychiatrist and it is quite inconceivable that he would, in notes made contemporaneously, attribute a statement of that sort to the applicant when nothing of the kind was said.
The evidence establishes that the applicant instructed his Counsel (and a paralegal present at the conference of 1 November 2013) that he wanted to enter a plea of guilty to murder after having received proper advice, given over a number of conferences, and after having gained an adequate understanding of the evidence to be led against him, and the legal basis of his liability.
Even if, as he asserted in his evidence, he felt that his lawyers placed him under strong pressure to plead guilty, that does not of itself establish that there has been a miscarriage of justice. As outlined by Howie J in Wong v The Director of Public Prosecutions (2005)155 A Crim R 37:
36. […] Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty.
37 But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice (citations omitted).
Even taking the applicant's evidence at its highest, and setting aside its largely untested nature, his evidence can do no more than establish that the applicant maintained that he was not personally involved in the assault upon Mr. Davies, that he felt "pressurised" to enter the plea of guilty, and that he was never comfortable with the plea. Nothing in that evidence leads me to conclude that there would be a miscarriage of justice were the plea of guilty permitted to stand.
The applicant's evidence does not, however, fall to be assessed in a vacuum.
Having heard and seen Mr. Trevallion and Mr. Wright give evidence to the court, I accept each as an honest witness with a clear memory of the relevant events. The evidence of the applicant's former lawyers contradicts that of the applicant in some material respects, those differences casting doubt on the applicant's reliability as a witness.
For example, the applicant asserted in his evidence that he had told Mr. Wright that he did not have and had never had a pair of shoes of the sort that deposited the bloody footprint at the scene of the murder of Mr. Davies. Mr. Wright deposed that the applicant had given him a particular explanation of the existence of the shoeprint; Mr. Trevallion said that the applicant gave him another. Whilst the explanations given to each differ (in itself indicative of unreliability) both explanations involved an acceptance that the applicant had been wearing the shoes, and had left the shoeprint, albeit innocently. That represents a stark contrast to the applicant's evidence, in which he denied all knowledge of the shoes.
I do not accept Mr. Kennedy as a reliable witness, or necessarily an honest one.
I conclude on the evidence that the applicant received fulsome advice from his former legal representatives as to the nature of the Crown case against him, the evidence to be called by the Crown and its affect, and the basis of his legal liability for murder. In my view, whilst the applicant's understanding of these matters may have been unsophisticated, it was sufficient to allow him to fully appreciate his position, and to make his own choice as to the plea to be entered.
I do not accept that the applicant was subjected to any pressure by his then lawyers, improper or otherwise. Any urgency in the advice being given to the applicant was clearly related to the timing of the plea, with Mr. Trevallion and Mr. Wright endeavouring to ensure that, if the applicant intended to enter a plea of guilty to the charge of murder, he should do so earlier rather than later, so as to secure the greatest discount on sentence possible.
That the plea was a voluntary acknowledgment of guilt is established by the applicant's instructions to Mr. Wright and Mr. Trevallion - to the effect that he had joined the enterprise to assault and rob Mr. Davies, in circumstances where he knew that the assault involved the infliction of serious harm to the deceased; and by his concession to Dr. Nielssen that he had been part of the robbery of the deceased, intending to obtain money with which to purchase drugs.
The applicant has failed to discharge the onus upon him to establish that he did not understand the nature of the charge, or that the plea does not represent a voluntary acknowledgement of his guilt. There has been no miscarriage of justice.
[7]
Orders
Leave to withdraw the plea of guilty to the charge of murder is refused. The applicant's motion is dismissed. The matter is listed for sentence on 13 March 2015 at Sydney Supreme Court.
[8]
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Decision last updated: 13 February 2015