R v Wilkinson

Supreme Court of NSW|2009-01-29|Before: Johnson J

Background to Application 2 On 4 April 2008, the Applicant was arraigned on an indictment alleging that, on or about 28 April 2004 at or near Sydney in the State of New South Wales, he did murder Kylie Labouchardiere. A plea of not guilty was entered and a trial date was fixed for 13 October 2008. Prior to 13 October 2008, the Crown indicated an intention to proceed on an indictment alleging murder together with a second count which alleged that, on 16 May 2004 at Picnic Point in the State of New South Wales, the Applicant did intentionally damage the property at 38 Kelvin Parade, Picnic Point, being the property of Garry Phillips, by means of fire. 3 The Applicant was born in 1975. By 2000, he was working as an Aboriginal Community Liaison Officer with the New South Wales Police. In February 2003, the Applicant married Julie Thurecht and, in November 2003, a son was born to the marriage. The Crown contends that the Applicant was deeply attached to his son and wished the marriage to continue. 4 It is common ground that the Applicant commenced a relationship with Kylie Labouchardiere in about December 2003. Ms Labouchardiere was born in 1980. The Crown contends that, in April 2004, the Applicant became aware that Ms Labouchardiere was pregnant and believed that he was the father of the unborn child. The Crown contends that the Applicant murdered Ms Labouchardiere on about 28 April 2004 and disposed of her body. Ms Labouchardiere was last seen alive in April 2004. Her remains have not been located. 5 On 16 May 2004, premises were set alight at 38 Kelvin Parade, Picnic Point. The Applicant and Ms Thurecht had been residing at the Picnic Point address since September 2003, although she and their son were not present when the house caught fire. The Applicant told police that Ms Labouchardiere and an aboriginal man had tied him up and set fire to the house. The Crown says that the Applicant set fire to these premises as a means of diverting attention away from him with respect to the disappearance of Ms Labouchardiere. The Applicant was scheduled to attend a police station on the day after the fire to be interviewed about the disappearance of Ms Labouchardiere.

Proceedings Since October 2008 6 The Court was informed that an issue had arisen concerning the Applicant's fitness to be tried. On 13 October 2008, an inquiry proceeded before me under s.10 Mental Health (Criminal Procedure) Act 1990 (now the Mental Health (Forensic Provisions) Act 1990) to determine whether the Applicant was fit to be tried for the offences of murder and arson. By the time of the inquiry, the psychiatric evidence was all one way and indicated that the Applicant was fit to be tried. Having regard to the totality of the evidence called at the inquiry, I was satisfied that the Applicant was fit to be tried and made a finding to that effect: R v Wilkinson [2008] NSWSC 1237. Tendered by the Crown at the inquiry was a substantial volume of material relating to the facts of the case (Exhibit A), in addition to psychiatric reports of Dr Olav Nielssen (for the Applicant) and Dr Stephen Allnutt (for the Crown) (T2-3, 13 October 2008). 7 As the Applicant was found fit to be tried, it is thereafter to be presumed that he is fit to be tried for the offences of murder and arson until the contrary is, on the balance of probabilities, determined to be the case: s.15(b) Mental Health (Forensic Provisions) Act 1990. 8 Following the inquiry on 13 October 2008, the proceedings were adjourned until 10.00 am on 14 October 2008. On that occasion, Mr Healey, counsel for the Applicant, informed the Court (T9) that the Applicant had "provided written instructions to my solicitor and myself, Ms McGowan, indicating that he was responsible and solely responsible for the death of Kylie Labouchardiere on 28 April 2004 when he strangled her at or near the old Mooney Mooney Bridge on the old Pacific Highway." Mr Healey stated that he had "instructions to inform the Crown and also to inform the Court that at that particular time, on my instructions, he later, a short distance away, buried the body of the deceased in bush land up a track, a fire trail about a mile and a half off the old Pacific Highway and has provided me yesterday afternoon, at the conclusion of these proceedings, with a mud map or rough map that I had his instructions to give to the Crown and I have done that and I understand that the Crown is conducting further investigations through the police officers present in Court". Mr Healey foreshadowed that the Applicant would plead guilty to manslaughter, but not guilty to murder upon the basis of substantial mental impairment (s.23A Crimes Act 1900) and/or provocation. 9 I should observe that Mr Healey, of counsel, had represented the Applicant, instructed by Ms Frances McGowan, solicitor, since July 2005 (statement of Simon Sproule, 17 August 2006, Exhibit A, Tab 7, pages 2-3) and since the Applicant was arrested and charged with murder in April 2007. 10 I note that at no stage up to the present time has the Applicant served a notice on the Crown, in accordance with s.151 Criminal Procedure Act 1986 and cl.23 Criminal Procedure Regulation 2005, of intention to adduce evidence of substantial mental impairment. 11 Thereafter, the proceedings were adjourned until 17 October 2008 to allow the Applicant to be further interviewed by investigating police with the view to locating the body of the deceased. 12 On 17 October 2008, the Applicant was arraigned upon an indictment alleging murder and arson. As to the first count, he pleaded not guilty to murder but guilty to manslaughter. He pleaded guilty to the charge of arson. The Crown indicated that the plea of guilty to manslaughter was not accepted in full satisfaction of the indictment (T18). Mr Healey informed the Court that the plea of guilty to manslaughter had been entered upon the basis of provocation and/or substantial impairment (T23.19). Thereafter, a trial date was fixed to commence on 18 November 2008. 13 The proceedings were again before the Court on 31 October 2008, when a trial date of 18 November 2008 was confirmed (T29-39). 14 At the request of the defence, the matter was relisted on 12 November 2008, the Crown having been informed by the Applicant's counsel that he wished to enter a plea of guilty to the charge of murder. The Crown asked that the Applicant be re-arraigned. On this occasion, Ms McGowan appeared for the Applicant. The Applicant pleaded guilty to murder. I convicted the Applicant of murder and arson (T1-2, 12 November 2008). 15 I vacated the trial then fixed for 18 November 2008 and made orders with respect to the sentencing hearing. 16 The sentencing hearing proceeded on 21 November 2008 with evidence from Detective Senior Constable Smith concerning investigative efforts to locate the body of Ms Labouchardiere. Thereafter, the sentencing hearing was adjourned to 2 December 2008, when two volumes of material were tendered by the Crown together with a Statement of Facts. There was a limited objection by Mr Healey as to part of the Statement of Facts (concerning completeness, but not accuracy) (T10-11, 2 December 2008). After some discussion, the Crown deferred the tender of these documents and the Statement of Facts (MFI1), pending further consideration of one aspect, and the sentencing hearing was adjourned until 15 December 2008 with a direction being given for service upon the Crown of any report of Dr Nielssen upon which the Applicant sought to rely. 17 During the course of the week preceding 15 December 2008, my Associate was informed by the Applicant's legal representatives that their instructions had been withdrawn. On 15 December 2008, Mr Healey and Ms McGowan appeared and, in due course, I granted them leave to withdraw. Mr Donnelly, solicitor, then appeared for the Applicant and announced that an application was to be made for leave to withdraw the plea of guilty to the count of murder. No application was made with respect to the arson count (T23).

Application for Leave to Withdraw Plea of Guilty to Murder 18 On 19 December 2008, I heard submissions on a threshold issue. The Crown contended that it was not open to the Court to entertain an application for leave to withdraw a plea of guilty where the Court had convicted the Applicant, and that the Applicant could only pursue this issue after sentence, on appeal to the Court of Criminal Appeal under the Criminal Appeal Act 1912. On this occasion, Mr Turnbull SC appeared for the Applicant and confirmed that the application for leave to withdraw the plea was confined to the murder count only (T32). After submissions had proceeded some way, I formed the view that the initial question could not be properly determined on that day. I took the view that the hearing of the application ought be adjourned part heard until 29 January 2009, being a day which had been reserved for the continuation of the proceedings. I gave directions for evidence to be filed and served with respect to the application for leave to withdraw the plea: R v Wilkinson (No. 2) [2008] NSWSC 1432.

The 2009 Hearing of Leave Application 19 At the resumed hearing on 29 January 2009, Mr Sutherland SC appeared for the Applicant and made application for a further adjournment. A short affidavit of the Applicant affirmed 12 January 2009 (Exhibit 1) had been filed and served. The focus of the adjournment application concerned the need for Dr Nielssen to again examine the Applicant. In the circumstances, the Crown consented to the adjournment application (T62). 20 On 29 January 2009, The Crown did not press the submission that the Court did not have jurisdiction to entertain an application for leave to withdraw the plea of guilty. The Crown accepted that the Court has a discretion to allow the Applicant leave to withdraw his plea of guilty at any time before sentence is passed. Independent of the Crown concession, I was satisfied that the weight of authority was such that the Court possessed a discretion to grant leave for the withdrawal of the plea of guilty prior to the imposition of sentence, even where the Court had convicted the Applicant following his plea (T59-60; T71-72).

21 Mr Sutherland SC submitted that the Court ought grant leave to the Applicant to withdraw the plea of guilty to murder in the circumstances of this case, with the result that the Applicant would go to trial on the murder count with the issue being whether he ought be found not guilty of murder, but guilty of manslaughter upon the basis of provocation or substantial impairment (T58). No application was made to withdraw the plea of guilty to the charge of arson. 22 The proceedings were adjourned until 2 April 2009 for hearing of the leave application and, if that application was unsuccessful, for continuation of the sentencing hearing. Directions were given for the Applicant to serve upon the Crown any further report of Dr Nielssen by 23 February 2009 and to serve any further defence affidavit by 9 March 2009. The Crown was directed to serve upon the Applicant any further report of Dr Allnutt by 16 March 2009. 23 The proceedings were relisted at my direction on 25 February 2009. By that time, the Applicant had served a further report of 30 January 2009 from Dr Nielssen (part Exhibit 3A). However, that report referred only to his attendances upon the Applicant in 2008, with Dr Nielssen not having examined the Applicant in 2009. Following discussion with counsel, I directed that any further report of Dr Nielssen be provided by 6 March 2009 (T82-83). 24 It appears that Dr Nielssen saw the Applicant again in February 2009, but no further report was furnished with Dr Nielssen observing in an email to Mr Donnelly that there was "no change to the opinion expressed in the last report" (Exhibit 3B). 25 On 18 March 2009, I gave leave for short service by the Crown of subpoenas directed to Justice Health and the Department of Corrective Services for production of documents which Dr Allnutt sought for the purpose of preparation of his further report. Those documents were produced on 19 March 2009 in response to the subpoenas. 26 On 24 March 2009, the Crown served a further detailed report of Dr Allnutt dated 22 March 2009 (Exhibit C). 27 On 30 March 2009, Mr Donnelly served an affidavit of the Applicant affirmed 26 March 2009 (Exhibit 2). In this affidavit, the Applicant, for the first time, referred to communications with his former lawyers, Mr Healey and Ms McGowan, with respect to his change of plea. The earlier affidavit of the Applicant affirmed 12 January 2009 (Exhibit 1) had touched upon matters concerning his change of plea, but did not reveal privileged communications with his former lawyers. 28 Having been served with the second affidavit of the Applicant, the Crown sought an urgent listing before me for short service of subpoenas for the purpose of the hearing. On 31 March 2009, the Crown Prosecutor and Mr Donnelly appeared before me and orders were made for short service of subpoenas directed to Mr Healey, Ms McGowan, Ms Rochelle Macredie (a solicitor in Ms McGowan's office) and Dr Nielssen for each of them to attend to give evidence at the hearing then listed for 1 April 2009 (the hearing having been brought forward because of prison officer industrial action scheduled for 2 April 2009). 29 On 1 April 2009, the hearing of the Applicant's leave application continued with oral and documentary evidence being adduced. The hearing continued on 2, 3, 8 and 21 April 2009. Oral evidence was given by the following witnesses:

(d) Mr Terry Healey (T255-274; T280-311). 30 Despite the efforts of the Court to ensure progressive and effective preparation for the April 2009 hearing by means of directions given on 29 January 2009, the taking of oral evidence was protracted and disjointed. This flowed from the very late service (on 30 March 2009) by Mr Donnelly of an affidavit of the Applicant raising, amongst other things, communications with his former lawyers. Faced with this very late affidavit, the Crown did not urge the rejection of this evidence at the hearing. Rather, the Crown took urgent steps to ensure that the hearing could proceed upon the merits of the application to be advanced by the Applicant. Given the nature of the application and the charge, this approach by the Crown was reasonable and the Court proceeded to hear evidence adduced on the application. It must be stated, however, that the very late service of the Applicant's second affidavit affected adversely the orderly presentation of evidence, including evidence from the Applicant's former lawyers. 31 Following submissions from counsel, a ruling was given with respect to waiver of client/legal privilege: R v Wilkinson (No. 3) [2009] NSWSC 293. Given the late emergence of this issue on the application, the Crown did not have an opportunity to obtain affidavits from Ms McGowan and Mr Healey. Rather, each of them was called to give evidence and it was necessary for each of them to refresh their memories from contemporary file notes, many of which became exhibits during the hearing. 32 It was apparent that Mr Donnelly had taken no steps to secure the attendance of Dr Nielssen to give evidence at the hearing of the application. It was the Crown that subpoenaed Dr Nielssen, who attended on 1 April 2009 without his notes. The evidence of Dr Nielssen was protracted and continued on 2 April 2009, when he produced his notes following the making of an order by the Court under s.36 Evidence Act 1995 for their production. 33 It appears that the inability of the Applicant to obtain a further report from Dr Nielssen led to an opinion being sought from Dr Bruce Westmore, who examined the Applicant on 31 March 2009 and furnished a report that day (Exhibit 4). 34 The manner in which Mr Donnelly has prepared this matter since his first appearance in the case on 15 December 2008 has not assisted the Court or the parties in the effective hearing and determination of issues to be decided. No application was made by Mr Donnelly after 29 January 2009 for an extension of the timetable to serve a further affidavit from the Applicant. It could be no answer to observe that the Crown was late in serving the report of Dr Allnutt dated 22 March 2009. It was never foreshadowed that an affidavit of the Applicant would be provided only after Dr Allnutt had furnished his report. Such an approach would be inconsistent with the basic proposition that it is the Applicant who bears the onus of proof on the present application. 35 A further aspect of the application should be noted. The Applicant's affidavits dated 12 January and 26 March 2009 were received into evidence on 1 April 2009 upon the basis that the Applicant would give evidence and be available for cross-examination. Medical and legal witnesses were called first and the taking of oral evidence from him was deferred. In due course, the Court was informed on 8 April 2009 that the Applicant did not wish to give evidence (T311-312). 36 I should mention as well that, on 8 April 2009, it was indicated for the first time that leave may be sought to withdraw the plea of guilty on the arson count (T275-279) although that application was not pressed (T280). 37 I have recited the procedural history of this matter at some length because the community, and persons concerned with these proceedings, are entitled to an explanation as to why this application has proceeded as it has. 38 Despite the practical difficulties encountered in the hearing of the application, it is, of course, necessary for the application to be considered on the merits, by reference to the evidence adduced and the applicable legal principles. 39 I will return to the factual issues raised on the application after first referring to the principles of law concerning an application for leave to withdraw a plea of guilty.

Applicable Principles Where Leave Sought to Withdraw Plea of Guilty 40 It is common ground that no provision in the Criminal Procedure Act 1986 governs the present application. Section 157 relates only to circumstances where trial by jury has commenced and a change of plea occurs thereafter. Section 207 relates to summary proceedings only (see Director of Public Prosecutions v Arab [2009] NSWCA 75). Accordingly, the present question falls to be determined by reference to general principles. 41 There is a well-recognised discretion to allow a person leave to withdraw a plea of guilty, at least prior to conviction: Maxwell v The Queen (1995-1996) 184 CLR 501; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37; R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380; Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158. 42 The Court may, in the exercise of discretion, grant leave to a person to withdraw a plea of guilty at any time before sentence is passed: Griffiths v The Queen (1977) 137 CLR 293 at 334-335; Maxwell v The Queen at 522. Each case must be looked at in regard to its own facts and a decision made whether justice requires that such a course be taken: R v Davies (1993) 19 MVR 481; R v Lars (1994) 73 A Crim R 91 at 109-110. 43 The onus lies upon the Applicant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Applicant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. 44 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. 45 On an application for leave to withdraw a plea of guilty, the question is not guilt or innocence as such but the integrity of the plea of guilty: R v Rae (No. 2) at 188 [21]. 46 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds 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, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. Although these principles were expressed in the context of an appeal, the same principles apply where application is made at first instance for leave to withdraw a plea of guilty. 47 Where an application is made for leave to withdraw a plea of guilty, evidence ought be adduced from the accused person as to the circumstances in which he or she came to plead guilty: Wong v Director of Public Prosecutions at 40 [14]. 48 The various circumstances identified by Spigelman CJ in R v Hura (2001) 121 A Crim R 472 at 478 [32] provide assistance where application is made for leave to withdraw a plea of guilty. These are:

(1) Where the Appellant " did not appreciate the nature of the charge to which the plea was entered " ( R v Ferrer-Esis (1991) 55 A Crim R 231 at 233).

(2) Where the plea was not "a free and voluntary confession" ( R v Chiron (1980) 1 NSWLR 218 at 220 D-E).

(3) The "plea was not really attributable to a genuine consciousness of guilt" ( R v Murphy [1965] VR 187 at 191).

(4) Where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt" ( R v Sagiv (1986) 22 A Crim R 73 at 80).

(5) Where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt" ( R v Cincotta NSWCCA 1 November 1995 (unreported)).

(6) The "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt" ( Maxwell v The Queen (supra) at 511).

(7) If "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt" ( R v Davies (1993) 19 MVR 481. See also R v Ganderton NSWCCA 17 September 1998 (unreported) and R v Favero [1999] NSWCCA 320).

As will be seen, the Applicant relies under the third and sixth of these factors here, and somewhat faintly, the seventh factor. Evidence Adduced on Application 49 I turn to consider the evidence touching upon this application. The focus will be on events occurring on and after 13 October 2008 (when the Applicant was found fit to be tried) and 15 December 2008 (when the Court was informed of the application to withdraw the plea). 50 The Crown tendered two volumes of material (Exhibit A) which demonstrated (quite apart from the Applicant's confession to which reference will be made shortly) a powerful circumstantial case against the Applicant for the murder of Ms Labouchardiere. 51 An affidavit of the Applicant affirmed 12 January 2009 (Exhibit 1) was read in the Applicant's case on the application. That affidavit is in the following terms: "1. I am the defendant in the matter of Regina v Paul James WILKINSON.

I had formed the view that the police had a very strong circumstantial case against me.

I knew that I would get a reduced sentence instead of life if I plead guilty.

Due to my previous employment as an Indigenous Liaison Officer with the NSW Police Force, I believed that I would probably get a sentence of sixteen (16) years if I pleaded guilty.

I have been in Silverwater Correctional Centre on remand for twenty (20) months.

Since coming to Silverwater Correctional Centre I have been in solitary confinement.

I have become depressed in Silverwater Correctional Centre.

I wanted a change of environment." 52 According to this affidavit, the Applicant formed the view, in my view correctly, that the Crown "had a very strong circumstantial case" against him (Exhibit 1, paragraph 2). He believed that he would get a reduced sentence if he pleaded guilty (Exhibit 1, paragraph 3). In these circumstances, he perceived it to be his advantage to plead guilty to murder. 53 A further affidavit of the Applicant affirmed 26 March 2009 (Exhibit 2) was also read on the application. In that affidavit, the Applicant stated that he had not killed Ms Labouchardiere and did not know whether she was dead. He proffered an explanation for his guilty plea based upon his desire to obtain a more lenient sentence. As mentioned earlier (at [35]), the Applicant declined to give oral evidence at the hearing of the application. 54 Included in the Crown evidence (Exhibits A and B) is a confession signed by the Applicant on 14 October 2008 in the presence of his counsel (Mr Healey) and solicitor (Ms Macredie) whereby, in circumstances therein described, he admits that he strangled Ms Labouchardiere on the evening of 28 April 2004 in the vicinity of the Mooney Mooney Bridge on the road to the Central Coast. He said that he panicked and decided to bury her body in the nearby bush. He found a shovel in the yard of a house and used it to dig a hole in which he buried the body wrapped in a doona. He expressed sorrow for what he had done and stated that he did not intend to kill the deceased, but that he accepted responsibility for her death. 55 At the time when this signed confession was provided to the Crown and police on 14 October 2008, the Applicant indicated a willingness to plead guilty to manslaughter, but not guilty to murder with substantial mental impairment or provocation being advanced as bases for this approach (T21.8). On 17 October 2008, the Crown declined to accept a plea of guilty to manslaughter in discharge of the indictment charging murder. 56 On 29 October 2008, Ms McGowan sent an email to Dr Nielssen noting that the Legal Aid Commission had approved funding for a conference on 30 October 2008 and a further report "addressing elements related to his plea of guilty to manslaughter: substantial impairment and diminished responsibility" and confirming that the Applicant had pleaded not guilty to murder, but guilty to manslaughter (Exhibit 7). It does not seem that Dr Nielssen saw the Applicant until 6 November 2008. 57 Ms McGowan and Mr Healey conferred with the Applicant at the MRRC on 4 November 2008. The conference notes of Ms McGowan (Exhibit 8) and Mr Healey (Exhibit L) concerning this conference are in evidence. It was the Applicant who raised the issue of pleading guilty to murder (McGowan, T214.27) and there was discussion concerning the importance of finding the body (T214.41.5; T238.34). The Applicant said words to the effect "I can't put my family through this. I cannot go to trial. I'm pleading guilty to murder. I murdered her" (Healey, T259-260; McGowan, T245). There was discussion with the Applicant concerning the elements of murder as opposed to manslaughter (McGowan, T237-241; Healey, T294-295) including the issue of substantial impairment (T295.2-12). Signed instructions to plead guilty to murder were not obtained at that time (T215.27). 58 Following that conference, Ms McGowan sent an email to Dr Nielssen that day stating, amongst other things, that the Applicant did not want to go to trial and that he wished to plead guilty to murder. The email continued (part Exhibit 7): "Learned counsel and I noticed a marked improvement in Mr Wilkinson's mental health, nonetheless it would be prudent for you to confer with him and confirm whether or not there remains a genuine defence of Provocation still available to him notwithstanding he does not want to run this defence. It seems to learned counsel and myself the defence raised of Diminished Responsibility or Substantial Impairment is fading, on Mr Wilkinson's most recent instructions. It may well be the case we would need to rely on your expertise on a plea on mitigation to Murder. Kindly contact either learned counsel or myself should you need clarification of this most recent development." 59 Dr Nielssen interviewed the Applicant on 6 November 2008 (T217-220). His notes of that interview (part Exhibit M) indicate that the Applicant had given instructions to enter a plea of guilty (to murder). The Applicant informed Dr Nielssen that he had killed Ms Labouchardiere. There was no reference in Dr Nielssen's notes of the 6 November 2008 interview to the question of the Applicant's fitness to be tried (T225). Dr Nielssen said in evidence that he did not get to the provocation issue as he did not "get to the detail of what happened" (T222.38). 60 On 9 November 2008, Ms McGowan sent an email to Mr Healey with respect to her conversation with Dr Nielssen on 7 November 2008 (Exhibit E). That email included the following: "The good doctor conferred with Paul on Thursday pm and he was unresponsive to Provocation questions. Dr is of the view that (assisted by medication) my client is progressing slowly but surely and it's premature to prepare a Supplementary Report." 61 On 9 November 2008, Mr Healey responded to Ms McGowan email (Exhibit E): "I am heartened by Olav Nielssen's view that Paul is unresponsive to Provocation. I am not sure what this means though? Did Olav, at least, indicate that he shared our views that Paul was seemingly improving in his mental health? I will see you at MRRC tomorrow afternoon." 62 On 10 November 2008, Mr Healey and Ms McGowan again conferred with the Applicant at the MRRC. The conference notes of Ms McGowan (Exhibit H) are in evidence. On this day, the Applicant provided signed instructions to plead guilty to murder (Exhibit J). There had been discussion with the Applicant on 13-14 October 2008 concerning the different elements of the crimes of murder and manslaughter, and Ms McGowan believed that the Applicant appreciated the difference between the two crimes when he pleaded guilty to manslaughter (McGowan, T235.23). Ms McGowan believed that the Applicant appreciated what was involved in pleading guilty to murder when he gave instructions to do so (T235.41). 63 Mr Healey stated that, as he saw it, the issues of provocation and substantial impairment had been resolved by 10 November 2008 following a lengthy conversation with the Applicant in conference who "presented clear, in good health, in good mind, he understood everything that I said to him" (T271.20). There was further discussion on 10 November 2008 concerning the elements of murder (T309-311). Mr Healey considered that the Applicant understood fully the ramifications of his plea of guilty to murder (T271.30; T305.19). Mr Healey was heartened in his view that the Applicant had improved by the view of Dr Nielssen to a like effect (T307.47). 64 As it happened, Dr Allnutt interviewed the Applicant for the Crown on 10 November 2008 (Exhibit C). Dr Allnutt provided a detailed account of clinical issues with respect to the 10 November 2008 interview (Exhibit C, pages 1-3). Thereafter, Dr Allnutt set out the Applicant's detailed account of the commission of the offence given to him during the 10 November 2008 interview (Exhibit C, pages 4-5). He told Dr Allnutt that, in the course of a sexual act with the deceased, he lost his temper and strangled Ms Labouchardiere (Exhibit C, page 5). According to Dr Allnutt, the Applicant gave this account in a "coherent manner" (T159.36). The account did not appear to Dr Allnutt to be a bizarre account, it was not an account that Dr Allnutt concluded was driven by mental illness (T159.47-160.1). Dr Allnutt was not concerned about the Applicant's fitness to be tried as at 10 November 2008 (T160.7). 65 Dr Allnutt interviewed the Applicant once again on 20 February 2009. Despite Dr Allnutt's extensive interviews with the Applicant on three occasions (14 August 2008, 10 November 2008 and 20 February 2009) and his detailed documentation review of material, including the Justice Health file concerning the Applicant, Dr Allnutt observed that "whether or not he suffers a mental illness is in question" (Exhibit C, page 12). Dr Allnutt observed that varied opinion had been expressed as to whether the Applicant suffered from a psychotic disorder, and Dr Allnutt listed factors in favour of and against a diagnosis of psychosis (Exhibit C, pages 12-13). Dr Allnutt observed (Exhibit C, page 13): "While I accept that he likely has in the past and could currently suffer depression and anxiety symptoms I am less sure that he suffers an active symptoms of psychosis; and [at] this stage I would defer making a diagnosis of psychosis." 66 Dr Allnutt explained why he was sceptical concerning the Applicant's claim that he heard voices and referred to the Applicant's evasiveness when under challenge (T160-161). Dr Allnutt was "highly suspicious at that time and fairly certain in [Dr Allnutt's] mind that these symptoms were not typical" (T161.41). 67 Dr Allnutt had no concern with respect to the Applicant's fitness to be tried as at 10 and 12 November 2008 (T161). It did not surprise him that the Applicant had pleaded guilty to murder two days after the examination on 10 November 2008 (T161-162). Dr Allnutt considered the Applicant fit to be tried as at 20 February 2009 (Exhibit C, page 13). He continues to be fit to be tried by reference to the test in R v Presser (1958) VR 45 (T165). 68 With respect to a possible defence of substantial mental impairment, Dr Allnutt observed that the Applicant was now denying completely that he killed Ms Labouchardiere. Dr Allnutt observed that, based on the account provided by the Applicant on 10 November 2008, he did "not believe there is sufficient evidence to enable the conclusion that he was impaired in his capacity to understand events, judge right from wrong or control his actions" (Exhibit C, page 14). 69 Dr Allnutt considered that the account given by the Applicant to Dr Nielssen on 6 November 2008 supported his view, in that "some of his answers appear to be part of a deliberate attempt to confuse the interviewer" (T181.2). 70 Reference should be made to two further emails which are in evidence. On 1 December 2008, Dr Nielssen sent an email to Mr Healey which mentioned the fact that Dr Nielssen had interviewed the Applicant on 6 November 2008 "and found him to be a little better than the earlier meetings" (Exhibit F; T223). 71 On 9 December 2008, Dr Nielssen sent an email to Ms McGowan after Ms McGowan had informed him that the Applicant had withdrawn instructions from her and Mr Healey. Dr Nielssen said (Exhibit F): "Thank you for letting me know. I know you and Terry did your best for him. I suspect there are still some concerns about his fitness."

Submissions of Applicant and Crown 72 Detailed submissions were made by counsel with respect to the application and I do not need to repeat them in this judgment. 73 In summary, Mr Sutherland SC advances the following submissions in support of the application:

(a) the Applicant had denied his guilt completely up to 13 October 2008, and then acknowledged that he killed Ms Labouchardiere in circumstances that constituted manslaughter, but denied his guilt of murder;

(b) from 13 October 2008 to 12 November 2008, there were unresolved issues concerning substantial mental impairment and provocation, so that the Applicant ought not have proceeded to plead guilty to murder without a clear report from Dr Nielssen stating that these defences were not viable;

(c) the plea of guilty to murder was influenced by the Applicant's belief, said to have originated from his lawyers, that a non-parole period of 16 to 18 years was a prospect on a plea of guilty;

(d) the plea of guilty to murder was not indicative of consciousness of guilt of the crime of murder;

(e) the Applicant's chequered mental health history both before and after 12 November 2008, accompanied by the various accounts given by the Applicant since April 2004 concerning the disappearance and death of Ms Labouchardiere, raise significant concern about the integrity of the plea of guilty to murder;

(f) the statement (at the conclusion of Dr Nielssen's report of 30 January 2009) expressing significant concern about the Applicant's fitness as at 6 November 2008, ought assist a process leading to a finding that leave to withdraw the plea of guilty ought be granted. 74 In summary, the Crown submits that no basis has been demonstrated for a grant of leave to withdraw the plea. Rather, the Crown submits that the Applicant's plea is indicative of consciousness of guilt of murder and the Applicant's desire to achieve some benefit from a plea. The position has become complicated, in the Applicant's mind, by his failure to lead the authorities to the body. He formed the view that his advantage on sentence may be limited, and decide to seek to change his plea to not guilty and to take his chances at trial. None of this, the Crown says, is a basis for leave to withdraw the plea. The Crown submits that no miscarriage of justice would result if the Applicant is held to his plea of guilty to murder.

Assessment of the Evidence and Determination of Application

The Psychiatric Evidence 75 The assessment of the Applicant undertaken by Dr Allnutt on 10 November 2008 is of considerable importance on this application. On the very day when the Applicant's counsel and solicitor conferred with him and the Applicant gave signed instructions to plead guilty to murder, Dr Allnutt examined the Applicant and had no concern with respect to his fitness to be tried. Further, no foundation existed for substantial mental impairment to be properly raised. 76 I am satisfied that Dr Nielssen did not take steps to contact Mr Healey or Ms McGowan before the Applicant pleaded guilty to murder on 12 November 2008 to express any concern with respect to that foreshadowed course of action. As Dr Nielssen explained in evidence (T227-228), he was unsure of the psychiatric diagnosis of the Applicant. He did not know if he was "dealing with a person who had an underlying psychiatric illness or if they were just pulling me, dragging me along in the same way that he made false statements to the police and other people and that everything he said was unreliable" (T228.15-20). Dr Nielssen expressed agreement with the proposition that the Applicant had lied on many occasions and seemed "to enjoy manipulating the situation he finds himself in" (T228.40-46). 77 Dr Allnutt saw the Applicant on 10 November 2008 and received a detailed account from him in which he admitted killing the deceased and disposing of her body (Exhibit C). In his report of 22 March 2009 and in evidence, Dr Allnutt said that he did not consider there was any question concerning the Applicant's fitness to be tried then or now (Exhibit C, page 13; T161). This was a considered view based upon a substantial volume of material, including Dr Allnutt's own examinations of the Applicant, his March 2009 review of the Justice Health file (Exhibit D) and reports of other psychiatrists. Dr Allnutt impressed as a careful witness who gave clear and persuasive evidence. 78 I regret to say that the same cannot be said of the evidence of Dr Nielssen. 79 Dr Nielssen provided a report dated 30 January 2009 in response to a letter from Mr Donnelly dated 15 January 2009 (part Exhibit 6). In response to Mr Donnelly's enquiry as to the Applicant's fitness to be tried, Dr Nielssen adverted to the 6 November 2008 interview and stated that the Applicant's "responses during the further interview conducted on 6.11.08 raise significant concerns about his fitness to enter a plea and his fitness for trial". 80 I do not accept that the lastmentioned statement reflected Dr Nielssen's opinion concerning the Applicant as at 6 November 2008. If it did, Dr Nielssen would have communicated that opinion loudly and clearly to Mr Healey, Ms McGowan and, indeed, the Court. Dr Nielssen's notes of the 6 November 2008 interview contain no reference to the issue of fitness to be tried. There is no email or file note containing any communication from Dr Nielssen to Mr Healey, Ms McGowan or anyone else between 6 November 2008 and 9 December 2008 in which the issue of fitness is touched upon. If there had been such a communication, it would have been recorded. The email from Dr Nielssen to Ms McGowan on 9 December 2008 does not, in truth, progress the matter. This email should be understood as Dr Nielssen's reaction following the Applicant's termination of his instructions to Ms McGowan and Mr Healey. The email does not shed light upon the Applicant's fitness to be tried as at 6 November 2008. 81 Dr Nielssen's suggestion in the report of 30 January 2009 that there were significant concerns, as at 6 November 2008, concerning the Applicant's fitness to be tried is difficult to understand. He had expressed the opinion on 13 October 2008 that the Applicant was fit to be tried. He considered that the Applicant had improved when he saw him on 6 November 2008 (T223; Exhibit F). His notes of the interview of 6 November 2008 say nothing concerning fitness to be tried (Exhibit 8; T225). He agreed that his obligation as an expert witness would have led him to contact Mr Healey, Ms McGowan or the Court to make this "loud and clear" if he had significant concerns as at 6 November 2008 concerning the Applicant's fitness, and he agreed that he did not do this (T225-228). His short and unadorned reference to fitness in the 30 January 2009 report arose from the request by Mr Donnelly, the Applicant's solicitor, to say something about the fitness issue (T227). 82 The short observation in the report of 30 January 2009 which is said to relate back to the interview of 6 November 2008 does not, in my view, assist the Applicant on the present application. The absence of any contemporaneous note of 6 November 2008 with respect to fitness, and the absence of any communication by Dr Nielssen to anyone else thereafter on the question of fitness, is stronger evidence with respect to his contemporary thought processes on this question. The statement in the report of 30 January 2009 does not elaborate upon the factors relevant to fitness by reference to the test in R v Presser. In my view, a proper understanding of the concluding sentence in Dr Nielssen's report of 30 January 2009 is a form of after-the-event gloss which Dr Nielssen has placed upon earlier events. 83 I am fortified in this conclusion by the observations and findings of Dr Allnutt on 10 November 2008. I have no doubt that Dr Allnutt approached his task with the level of detachment and objectivity of an expert witness. Dr Allnutt's evidence demonstrates that no proper issue existed as at 10 November 2008 with respect to the Applicant's fitness to be tried nor, for that matter, with respect to any possible defence of substantial mental impairment. 84 It is noteworthy that Dr Bruce Westmore, who examined the Applicant on 31 March 2009 at the request of Mr Donnelly, concluded that the Applicant was fit to be tried in 2008 and remains so today (Exhibit D, pages 8-9). Dr Westmore did not consider that substantial impairment was raised (Exhibit D, page 9). 85 The various psychiatrists who have examined the Applicant have referred to his evasiveness and propensity to make misleading statements in various respects. There is a live debate as to whether the Applicant suffers from any psychotic disorder. The measured and detailed analysis of Dr Allnutt led him to the conclusion that the Applicant suffers from depression and anxiety, but he was not persuaded that psychotic disorder is present. Dr Nielssen acknowledges the Applicant's pattern of misleading accounts, but leans towards the presence of "some sort of disorder" (T228.25-27). Nothing said by Dr Westmore assists the Applicant in this respect.

Why Did the Applicant Plead Guilty to Murder ? 86 As the Applicant did not give evidence before me, I am not in a position to form my own view of him as a witness. 87 I am satisfied that the Applicant pleaded guilty to murder in the face of a very strong circumstantial case against him, and in circumstances where he believed that such an approach would operate to his advantage on sentence. This scenario is not uncommon and does not of itself provide a basis for a grant of leave to withdraw a plea of guilty. 88 To the extent that the Applicant seeks in his 26 March 2009 affidavit, to rely upon knowledge (concerning fitness to be tried or any defence) said to have been obtained from reading the psychiatric reports of Dr Nielssen and Dr Allnutt, I do not consider that this materially assists the Applicant. He maintains that he did not kill Ms Labouchardiere. His suggested defence is not one which raises psychiatric issues at all. Rather, it involves a complete denial of any involvement on his part in the disappearance and death of Ms Labouchardiere. 89 I accept the evidence of Mr Healey and Ms McGowan concerning the conferences with the Applicant on and after 13 October 2008 and instructions given to them by the Applicant in those conferences. 90 I am satisfied that the Applicant understood that he should not enter a plea of guilty to murder unless he meant thereby to admit commission of that offence. I am satisfied that that he freely entered that plea of guilty and hoped for a more lenient sentence as a result of his plea. 91 The question of the integrity of the Applicant's plea of guilty to murder ought be considered against the background of other evidence. There is no dispute that the Applicant and Ms Labouchardiere had formed a relationship, nor that (at the least) he believed that she was pregnant to him at the time of her disappearance. He was a married man with a small child at that time. This is not a case of an admission to murder by someone who is unrelated to the victim. 92 There is a live issue, on the psychiatric evidence, as to whether the Applicant suffers (or has suffered) from any significant mental illness and whether he has made up accounts to mislead psychiatrists and others. 93 The effect of some of the submissions made on behalf of the Applicant involves criticism of the Applicant's former counsel and solicitor and Dr Nielssen. The way in which this issue arises is that the lawyers did not satisfy themselves, through Dr Nielssen, that there was no arguable or viable basis upon which the Applicant could go to trial on the murder count, in particular, by reference to substantial mental impairment and provocation. 94 In my view, such an argument does not assist the Applicant. He had instructed his counsel and solicitor that he wished to plead guilty to murder. He had formed his own view as to the possible range of sentence if he pleaded guilty, and he believed that this course would be to his advantage. The Applicant had been a liaison officer with the NSW Police. He stated that his background assisted him in considering a possible sentence if he pleaded guilty. In this context, he spoke to his lawyers about the prospect of "a deal" on sentence if he pleaded guilty to murder (T214; T260). I accept the evidence of Ms McGowan and Mr Healey to this effect. The applicant's recorded conversation with Detective Senior Constable Smith at Mooney Mooney on 21 October 2008 strongly supports the conclusion that it was the Applicant who raised the length of sentence and discussed the topic with the police officer in a manner which had the flavour of seeking a "deal" (Exhibit A, Tab 32, Annexure L, pages 7-9). 95 The Applicant was aware that his plea of guilty to murder involved an admission of all the elements of that crime. I am satisfied that Dr Nielssen gave no indication to the Applicant's lawyers before 12 November 2008 that there was any viable defence to the murder charge, nor that there was an issue as to fitness to be tried. Dr Nielssen was aware, on 6 November 2008, that the Applicant intended to plead guilty to murder. 96 Ms McGowan acknowledged that, in hindsight, perhaps further steps could have been taken by way of communication between the lawyers and Dr Nielssen. But, to what end? The thorough and reliable assessment of the Applicant by Dr Allnutt on 10 November 2008 raised no concern as to fitness, nor did it provide any support for a possible defence of substantial mental impairment. 97 The Applicant now denies any involvement in the death of Ms Labouchardiere, and states that he does not know whether she is alive or dead. None of the forensic psychiatrists who have examined him provide a foundation for a defence of substantial mental impairment. 98 To the extent that the present application involves a form of criticism of the Applicant's previous lawyers for the way in which they represented his interests in October-November 2008, it is pertinent to observe that the test on appeal based upon the act or omission of defence lawyers would focus upon whether there was a miscarriage of justice demonstrated in the circumstances of the case: R v Birks (1990) 19 NSWLR 677 at 685-686. Here, there were regular conferences in October and November 2008 at which the Applicant, Mr Healey and Ms McGowan discussed in detail the options which were open to the Applicant. The Applicant gave signed instructions to his lawyers at critical times on 13 and 14 October 2008 and 10 November 2008. I am satisfied that the Applicant was well aware of the elements of the offences of manslaughter and murder at the time when he gave these signed instructions to his lawyers. 99 At its highest, the evidence suggests that the Applicant's counsel and solicitor and Dr Nielssen did not, as between them, clearly close out possible issues of provocation and substantial mental impairment. However, Dr Nielssen gave no information to Mr Healey and Ms McGowan on or after 6 November 2008 which could have provided comfort to the Applicant in these areas. As mentioned earlier, the evidence of Dr Allnutt operates strongly against the Applicant in these respects. The report of Dr Westmore does not assist the Applicant. Then, it is necessary to factor in the Applicant's complete denial of the offence. To the extent that R v Birks considerations with respect to miscarriage of justice might arise for consideration (by analogy) on this application, I am well satisfied that the holding of the Applicant to his plea of guilty to murder will not give rise to a miscarriage of justice. 100 The passing reference to family pressure does not assist the Applicant. No member of the Applicant's family gave evidence on the application, and neither did the Applicant.

Conclusion 101 The Applicant was found fit to be tried on 13 October 2008. I am satisfied, on the psychiatric evidence, that the Applicant remained fit to be tried thereafter and, in particular, as at 12 November 2008 and at the present time. No basis has been demonstrated to overcome the statutory presumption of fitness in s.15(b) Mental Health (Forensic Provisions) Act 1990. I accept the evidence of Dr Allnutt in its entirety with respect to the Applicant. The psychiatric evidence does not assist the Applicant on the present application. 102 The onus lies upon the Applicant to demonstrate that leave should be granted. The application should be approached with caution bordering on circumspection (see [43] above). 103 The Applicant pleaded guilty to murder on 12 November 2008. This was an act of free choice taken by him to obtain the perceived advantage of a reduced sentence. He understood that, by his plea of guilty, he was admitting that he killed Ms Labouchardiere in circumstances which constituted the crime of murder: Meissner v The Queen at 157; Wong v Director of Public Prosecutions at 40-42 [14]-[16]. There is, independent of his confession and plea, a strong body of circumstantial evidence which incriminates the Applicant in the murder of Ms Labouchardiere. 104 I am not persuaded that the plea of guilty to murder was not indicative of consciousness of guilt. 105 The fact that the Applicant has changed his account from a denial to an admission of guilt, and then back to a denial of murder does not assist the Applicant. This scenario arises in virtually every case where leave is sought to withdraw a plea of guilty. 106 Although the same legal principles apply where application is made to withdraw a plea of guilty to murder as with other crimes, I have kept in mind the substantial consequences to the Applicant if he is held to his plea of guilty to murder. 107 The Applicant has failed to establish that the plea of guilty to murder was not really attributable to a consciousness of guilt. I am satisfied that no miscarriage of justice would result if the present application is declined. 108 The application for leave to withdraw the plea of guilty to murder is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Wilkinson (No. 4) [2009] NSWSC 323

R v Wilkinson [2008] NSWSC 1237 R v Wilkinson (No. 2) [2008] NSWSC 1432 R v Wilkinson (No. 3) [2009] NSWSC 293 Director of Public Prosecutions v Arab [2009] NSWCA 75 Maxwell v The Queen (1995-1996) 184 CLR 501 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 Griffiths v The Queen (1977) 137 CLR 293 R v Davies (1993) 19 MVR 481 R v Lars (1994) 73 A Crim R 91 R v Marchando (2000) 110 A Crim R 337 R v Toro-Martinez (2000) 114 A Crim R 533 R v Sewell [2001] NSWCCA 299 CASES CITED : R v Liberti (1991) 66 A Crim R 120 R v Parkes [2004] NSWCCA 377 R v SL [2004] NSWCCA 397 Charlesworth v R [2009] NSWCCA 27 Meissner v The Queen (1995) 184 CLR 132 R v Hura (2001) 121 A Crim R 472 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Chiron (1980) 1 NSWLR 218 R v Murphy [1965] VR 187 R v Sagiv (1986) 22 A Crim R 73 R v Cincotta NSWCCA 1 November 1995 (unreported) R v Ganderton NSWCCA 17 September 1998 (unreported) R v Favero [1999] NSWCCA 320 R v Presser (1958) VR 45 R v Birks (1990) 19 NSWLR 677

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