"I felt that I didn't have a chance if I kept on running my trial and I felt that I was backed into a corner trying to defend myself against the witnesses. I considered my position and decided that I would be better to plead guilty to murder and take a lesser sentence.
28 Counsel suggested that the discussions in the first conference focused upon the issue of identification of the appellant as the person wielding the paling that was used to batter the deceased to death. The potential issues of provocation or intoxication were not, according to him, raised at that stage or, if they were raised, then they were dealt with only in passing.
29 In the second conference, however, Counsel said that those issues were expressly raised and dismissed. The conversation in relation to provocation was confined to the observation by Counsel that:
"There is no evidence of the effect it had on you".
30 The possibility of provocation which Counsel seems to have later considered open was, no doubt, related to the alleged presentation by the deceased of a knife during the course of an argument or scuffle in the caravan amongst the various persons present, including the appellant.
31 The conversation in relation to intoxication Counsel said was limited to the advice,
"White juries will never let an Aboriginal accused off because they were drunk in my experience."
32 Counsel said that he also advised the appellant that there was a difficulty, if not an impossibility, in the defence switching from one dependent on the issue of identification to some other, more limited defence.
33 At no time, he said, did he advise the appellant about the necessity of his Honour giving a warning to the jury in the course of the summing-up pursuant to section 165 of the Evidence Act, presumably concerning the possible unreliability of the evidence concerning identification, or of that coming from a person or persons who may have been criminally involved in the events.
34 He said, additionally, that he did not advise the appellant about the possibility of a verdict of manslaughter being returned in lieu of a conviction for murder. Nor did he discuss with the appellant possible avenues of cross-examination of John Wilkes, or of his friend Scott Payne who had provided a statement, and who allegedly had been seen at one point to be pursuing the deceased. In that regard I observe that there was material apparently available to the Crown, as disclosed in the affidavits placed before us, to suggest that two persons were seen pursuing the deceased prior to his death.
35 In his second affidavit, Counsel said that upon reflection, he had become concerned that he had not given the appellant any real choice as to whether he should plead or not, and that the appellant had not given him any instructions acknowledging that he had committed the offence. Moreover, it had occurred to him that there were a number of matters that he could have put to John Wilkes in cross-examination, including the fact of his prior inconsistent statement to the police, the presence of a cut to his hand inflicted by the deceased, as well as the presence of other marks or injuries on his body and of blood on his T-shirt. He added that there was also an opportunity, which he now saw, for cross-examining the various civilian eyewitnesses, some of whose recollections may have been affected by the alcohol that they, and others present at the caravan park, appear to have been consuming that day.
36 Similarly, he said that there was room to cross-examine the caravan park proprietor, Peter Slappendel, as to his ability to identify the attacker, as the appellant, from the distance that he was from the scene of the killing; and concerning an inconsistency between the description he gave of the attacker's clothing and that given by other witnesses. The identification of the appellant by Mr Slappendel's wife, Counsel suggested, was also open to question in the light of the appellant's claim not to have known her previously.
37 Next Counsel said the observations attributed to the appellant by police and the ambulance officers called to the scene, concerning the injuries he had suffered to his arms, ribs and nose, and that were relied upon as admissions were open to question as possibly having been related, not to the killing, but to the earlier altercation in the caravan, in the course of which the appellant claimed that he had been threatened with a knife.
38 Finally, he said that there was room to cross-examine the officer in charge of the case as to why there had been no testing of the blood found on the shirt of John Wilkes, or of the clothing worn by Scott Payne for comparison with the blood of the deceased; or any statement taken from Robert Wilkes who had also been at the scene and who, it was suggested, at some stage had been engaged in a fight with John Wilkes.
39 It is evident from the terms of the exchange deposed to by Counsel that the appellant did not acknowledge his guilt and, if anything, was protesting his innocence. The clear inferences that he was suggesting were that it may well have been his brother John Wilkes and Mr Payne who had been responsible for the killing, that they could be putting their heads together to attribute the blame to him; and/or if he had been involved in the killing, then he did not have any memory of it, due to the effects of the alcohol that he had consumed that day. In that latter regard, we have today been informed that there is evidence from the hospital records, supported by answers given in the ERISP, to the effect that the appellant was significantly affected by alcohol by the time that he was seen at the hospital.
40 Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, Counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as have been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt.
41 So far as any question exists as to whether there is a genuine question as to the appellant's guilt, that question needs to be considered in the context of the evidence that had been given, before the change of plea, by the four witnesses out of the thirty witnesses that the Crown had expected to call in the trial.
42 This evidence had revealed that DNA testing of the appellant's clothing had not shown up any blood consistent with that of the deceased; that DNA testing of the murder weapon was inconclusive; that photographs taken of the appellant's hand had not shown any injury to it; and that the two eyewitnesses Grahame Clenton and Karen Ridgeway who had been called were not able positively to identify the appellant as the man responsible for the killing. The former because his vision from the caravan had been limited, and the latter because, although she knew Payne and John Wilkes, she did not know the appellant. It may be observed that those witnesses did refer to the assailant as a big man, which would be consistent with the appearance of the appellant, and inconsistent with that of John Wilkes and Payne. However, it is not open to us to take that matter further in the absence of a full appreciation of the available evidence.
43 The existence or otherwise of a real question as to the appellant's guilt turns additionally upon what it was that the other witnesses may have been expected to say. In this regard we have received only a portion of the Crown brief. Of the various statements placed into evidence before us, it does appear that Mark Doyle would say that he saw the deceased pull out a knife at one stage of the afternoon when confronting the appellant. Dean Rutledge says, in his statement, that he had seen some injuries to the head and face of Scott Payne, and that he had also seen marks like blood on John Wilkes' T-shirt after the killing. Finally, it may be noted that amongst the various statements placed before us there was one from Ambulance Officer Clement. In that statement he noted that a person with whom he spoke at the scene, whom it would seem was the appellant, had said that the deceased, whom he had hit with his hand, had threatened his family.
44 In all of the circumstances outlined, we are not in a position to determine the manner in which the balance of the evidence would have emerged and, in particular, how Mr John Wilkes and Mr Payne would have fared under cross-examination. Nor are we able to predict what evidence might have emerged as to the quantity of alcohol consumed by the appellant on the day of the killing, or as to its effect upon him, so far as that may have been relevant for an offence requiring specific intent, as the present case required.
45 The limited material available does, however, leave it possible to say that the identification evidence could have been tested in the way that Counsel has now identified, that an issue could have arisen as to whether either or both John Wilkes and Payne had been involved either as principals in the first or second degree in the killing; and in so far as the evidence might have implicated the appellant as the offender, rather than those men, that a question could have arisen as to whether he acted under provocation, or in an alcohol affected state such that he lacked the requisite state of mind.
46 While the Crown case may, on one view, appear on the limited material provided to us, relatively strong, it cannot be said at this stage that questions of the kind mentioned could not genuinely arise which should be determined by a jury.
47 This court should, in my view, be reluctant to dismiss the confession by an experienced public defender that he made a mistake in his assessment of the merits of the case and in the advice given. In particular, I would not be prepared to do that by reference to what could only be a partial consideration of the prosecution brief, that is without the benefit of it being tested by examination and cross-examination, a matter which is properly reserved to a jury and which is simply not available to us.
48 In all those circumstances, not withstanding the respect which needs to be given to the finality of verdicts in criminal trials, a circumstance requiring very great diligence on the part of trial counsel, when advising as to the wisdom of entering a plea, I have reached the conclusion that this appeal should be allowed and the conviction set aside. I would order a new trial.
49 I would only wish to add that it was in the very best traditions of the bar for counsel to have taken the step that he did, to correct what he saw to be a serious error on his part, affecting the liberty of his client, and to frankly acknowledge that failing in the affidavits placed before us.
50 It should also be said that it was regrettable for advice to have been given, and a decision taken of such importance, in haste and without proper reflection since little was to be lost, in pragmatic terms, concerning the timing of the plea. The proper course, with hindsight, would have been to reserve any decision about a change of plea overnight, by which time a better appreciation may have been possible concerning the likely credibility of John Wilkes and Mr Payne, and during which time the appellant could have had the opportunity of considering his position without being distracted by the immediate pressures of a hearing that was about to resume.
51 I mention these matters not by way of criticism of trial Counsel, but to underline for the future the care needed when occasion arises for a possible change of plea mid trial. Not only should Counsel take the time needed for proper reflection, but so should they be allowed the opportunity if time is sought.
52 GILES J: For the reasons given by Wood CJ at CL I agree that the conviction should be set aside and that there should be a new trial.
53 SIMPSON J: I also agree.
54 GILES J: Those will be the orders.
Mr Game, I note that Mr Wilkes has had bail consistently refused. Any intentions in that regard I think should be raised before a single judge if it is to be raised at all.
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