Regina v Almirol

Supreme Court of NSW|2006-09-08|Before: James J, Hodgson JA, Hunt CJ, Boag Hunt CJ

The applicant, Mr Wheeler and Mr Cavestany also gave oral evidence at the hearing of the application.

For the Crown:- two affidavits by Mr D A Marr, a barrister who had appeared for the applicant.

Mr Marr gave oral evidence at the hearing of the application. The evidence for the Crown also included a folder of documents, which included pathologists' reports of examinations of the remains of the deceased, statements by a woman named Corazon Davis and a man named Edgardo Manalasay, transcripts of intercepted and recorded telephone conversations between the applicant and Corazon Davis and a transcript of an electronically recorded interview of the applicant by police on 12 July 2004.

Clearly Established Facts 8 Although there were some disputed facts at the hearing, there was little, or no, dispute about the following matters. 9 As at 15 December 2002 the applicant was residing in a house at Regents Park where Corazon Davis and her husband also usually lived. However, on or shortly before 15 December 2002 Corazon Davis and her husband had gone on a visit to the Philippines. 10 For several hours on 15 December 2002 the deceased, the applicant and Trocio were together in the house at Regents Park. The deceased was a Pacific Islander and a very much bigger man than either the applicant or Trocio. He was referred to by the applicant and Trocio as "Mr T". On 15 December 2002 the deceased was killed by having his throat cut. There is a stark conflict between the versions which have been given by the applicant and by Trocio as to which of them did the physical act or acts of killing the deceased. 11 On the following day, 16 December 2002 the deceased's body was cut up into a number of parts and the parts were disposed of in the Blue Mountains. The applicant admits that he participated in the cutting up of the body and the disposal of the parts. 12 On 19 December 2002 the applicant departed from Australia to the Philippines. 13 In late December 2002 and early January 2003 the remains of parts of a human body were found at three, widely separated, places in the Blue Mountains. The remains were identified as being the remains of the deceased. 14 On 18 January 2003 Corazon Davis and her husband returned from the Philippines and observed indications in their house that during their absence unusual things had happened. 15 On 15 April 2003 Corazon Davis made a statement to the police in which she disclosed some, but not all, of what she knew about the deceased, the applicant and Trocio. On the same day a search warrant was executed by police at the house at Regents Park. 16 On 24 April 2003 Trocio was interviewed by police. He gave a version of what had happened on 15 December 2002 which incriminated the applicant. 17 In May 2003 criminal proceedings were instituted against the applicant. 18 On 21 May 2003 Corazon Davis made a further statement to police in which she disclosed much more of what she claimed to know about the applicant and Trocio. She said that each of the applicant and Trocio had spoken to her giving accounts of what had happened on 15 December 2002. 19 Corazon Davis agreed to assist police in their investigation and on 24 May 2003 Corazon Davis, who was in Australia, had a long telephone conversation with the applicant, who was in the Philippines, which was lawfully intercepted and recorded by police. In the telephone conversation Corazon Davis asked the applicant questions about what had happened on 15 December 2002, saying that she had received conflicting accounts from the applicant and Trocio. After 24 May 2003 there were further telephone conversations between Corazon Davis and the applicant which were intercepted and recorded. 20 Police instituted proceedings for the extradition of the applicant from the Philippines and on 6 May 2004 the applicant was taken into custody in the Philippines. The applicant did not oppose being extradited to Australia and on 21 June 2004 he was brought to Australia. 21 On 12 July 2004 the applicant participated in an electronically recorded interview. In his answers in this interview the applicant admitted that he had struck the deceased with a chair, but only for the purpose of preventing the deceased from continuing to assault Trocio, and said that, subsequently, Trocio had hit the deceased many times with the chair until the deceased was rendered unconscious. Trocio had then cut the deceased's throat with a knife. 22 After the applicant was brought back to Australia, Mr Ash became his solicitor and Mr Ash instructed Mr Marr of counsel to appear for the applicant. However, Mr Ash, because of ill health and because he was often in Western Australia, appointed Mr Wheeler, a solicitor who specialised in criminal law, to act as his agent and Mr Wheeler had the actual carriage of the applicant's matter. 23 The applicant has only very limited knowledge of English and a Tagalog interpreter Mr Cavestany acted as interpreter at conferences with the applicant. 24 A joint trial of the applicant and of Trocio for the murder of the deceased was fixed to commence on 7 March 2005. However, the trial did not proceed on 7 March 2005, because of the unavailability of a witness the Crown wished to call and also, it would seem, because Trocio's legal representatives had indicated that Trocio might be prepared to change his plea. 25 As I have already stated, Trocio pleaded guilty before me on 31 March 2005 to the murder of the deceased and on 17 June 2005 he was sentenced by me, on the basis that he was a principal in the second degree, who had done little, if anything, more than to act as a lookout for the applicant, who was the person who had carried out the killing of the deceased. 26 A separate trial of the applicant on the charge of murder was fixed to commence before me in November 2005. On 7 November 2005 the applicant was arraigned and pleaded not guilty to the charge of murder. 27 On 7 November 2005 I heard an application by Mr Marr as counsel for the applicant that evidence of the intercepted and recorded telephone conversations between Corazon Davis and the applicant should not be admitted into evidence at the trial. After hearing argument on the application, I reserved my decision. 28 On the morning of 8 November 2005 Mr Marr had a conference with the applicant in the cells below the courtroom, without an interpreter and without a solicitor. Mr Cavestany gave evidence at the hearing that he was present at the conference but I have concluded that he was mistaken. 29 When the Court sat on the morning of 8 November 2005 I delivered a reserved judgment in which I rejected the application that evidence of the intercepted and recorded telephone conversations be excluded from the evidence at the trial. A jury panel was already in attendance at the court complex so that a jury could be empanelled and a trial of the applicant commence. 30 After I delivered my judgment, Mr Marr applied for a short adjournment so that he could obtain instructions, in the light of my ruling, and I granted the application for an adjournment. 31 Mr Marr then had a further conference with the applicant in the cells below the courtroom. Mr Cavestany acted as interpreter at this conference. 32 Mr Wheeler, who had arrived at the court after Mr Marr's earlier conference with the applicant, considered that his most pressing obligation was to inform his principal, Mr Ash, of my ruling and he spent some minutes unsuccessfully attempting to contact Mr Ash in Western Australia, before going down to the cells. 33 There was a conflict between Mr Marr's evidence and Mr Wheeler's evidence as to whether Mr Wheeler actually entered the interview room in which Mr Marr was conferring with the applicant. However, even if Mr Wheeler did not actually enter the interview room, I am satisfied that he was close by and overheard some, though not all, of what was said between Mr Marr and the applicant, as interpreted by Mr Cavestany. Mr Wheeler realised that Mr Marr was advising the applicant about pleading guilty. Mr Wheeler was upset by this development and manifested this to Mr Marr. 34 There is no doubt that in this conference on 8 November 2005 Mr Marr said words to the effect that the evidentiary ruling I had made would make it difficult to defend the charge; that, if there was a trial, the applicant would probably be found guilty; and that there would be an advantage for the applicant in pleading guilty in that he would be likely to receive a lower sentence. I will return later in this judgment to a further consideration of what was said in this conference. 35 Mr Marr wrote out a document which became Exhibit 1 in the application, which was in the following terms:- "I, Alejandro Almirol, instruct my solicitor and barrister that I will plead guilty to murder on the basis that I was an accessory to the murder by Prehector Trocio. By my presence, words and encouragement to Trocio I acknowledge that I assisted him and that that makes me guilty in law as explained to me by my barrister. I accept I will receive a long gaol sentence my barrister will attempt to make it as close to Trocio's as he can. I have made this decision to plead guilty of my own free will. This document was interpreted from English to Tagalog by a Filipino interpreter, Marcelino Cavestany, before it was signed by me. Signed Marclino Cavestany and A Almirol - 8 November 2005"

The line reading "My barrister will attempt to make it as close to Trocio's as he can", which is an interlineation in the original document, was inserted at the applicant's request. 36 The written instructions were translated by Mr Cavestany to the applicant and were signed by the applicant and Mr Cavestany. 37 When the Court reconvened Mr Marr asked that the applicant be arraigned again. The applicant was arraigned and pleaded guilty to the charge of murder. The proceedings on sentence were stood over to 28 November 2005. On 28 November 2005 the proceedings on sentence were further adjourned because of the serious illness of Mr Cavestany. 38 Mr Wheeler communicated with Mr Ash and expressed disquiet about the applicant having pleaded guilty. 39 On 6 February 2006 and again on 10 February 2006 Mr Ash, Mr Wheeler and Mr Cavestany conferred with the applicant at a Correctional Centre. Mr Ash prepared a statement by the applicant which became the basis of one of his affidavits on the present application. The statement prepared by Mr Ash was signed by the applicant on 22 February 2006. On that day the applicant instructed Mr Ash that he wanted to change his plea. 40 In March 2006 the Crown was informed that the applicant intended to apply for leave to withdraw his plea of guilty.

The Recorded Telephone Conversations 41 I have already referred to the intercepted and recorded telephone conversations between Corazon Davis in Australia and the applicant in the Philippines on 24 May 2003 and on subsequent dates and to my decision on 8 November 2005 to reject an application by counsel for the applicant that evidence of the conversations should be ruled to be inadmissible in a trial of the applicant. The only one of those conversations which was the subject of submissions on the present application was the initial conversation of 24 May 2003 and I will restrict my discussion to that conversation. 42 The applicant did not dispute that he was one of the two speakers in that conversation and that the other speaker was Corazon Davis, who was a close friend of his, or that in the conversation he was endeavouring to tell Corazon Davis the truth about what had happened on 15 December 2002. 43 The conversation was in Tagalog and it was translated into English by a translator retained by the Crown and then by Mr Cavestany, who was the applicant's preferred translator. 44 A transcript of the conversation setting out both the words spoken in Tagalog and the translation into English by Mr Cavestany was admitted into evidence in this application. 45 The transcript of the conversation contains a number of passages which would tend to establish the applicant's liability as at least a principal in the second degree in the murder of the deceased, even assuming, in the applicant's favour, that it was Trocio and not the applicant who did all the physical acts of cutting the deceased's throat. I will refer to some parts only of the transcript of the conversation. 46 At page 14 of the transcript the applicant said, with reference to 15 December 2002, "Of course, Hector's my buddy so I can't just let him (the deceased) beat him (Trocio) like that". 47 At page 15 of the transcript the applicant said that Trocio had said to the applicant:- "We may as well complete this, finish him off … trouble is, if perchance he gets up he'll kill us instead". 48 At page 16 of the transcript the applicant said that Trocio had said to the applicant:- "Let's finish the job, after all, what's done can't be undone. You decide, it's your business". 49 Also at page 16 of the transcript the applicant said that Trocio had said:- "We better finish this once and for all" and the applicant had said:- "That's not easy. It's your own lookout". 50 At page 17 of the transcript the applicant said that he had said to Trocio:- "Whatever happens, I'll stick it out with you". 51 Also at page 17 of the transcript the applicant said:- "I am innocent of what happened. We simply helped one another. Now that it's done, it could be said that precisely, we did it alternately. Because the corpse is right there - a dead body right before our very eyes. We couldn't fit it in my car as he was so huge." 52 At page 21 of the transcript the applicant said:- "If we didn't finish it … the way we did … I'm afraid he would have finished one of us if not the both of us". 53 At page 22 of the transcript Corazon Davis asked the applicant:- "How were you able to cut his throat?" At page 23 the applicant said:- "Truth to tell, I had no plans whatsoever … Hector did it all". At page 25 of the transcript the applicant said:- "What I hate most is to be blamed for something I didn't do". 54 At page 27 of the transcript Corazon Davis asked:- "When you slashed his neck with the knife …was he still alive or dead already?" At page 28 of the transcript the applicant replied:- "We didn't know, I'm not sure, because I'm not knowledgeable in telling if a person is dead …". 55 Also at page 27 of the transcript the applicant said:- "He (the deceased) was still berserk so we hit him here and there and when finally he was fatally hit, he died". 56 At page 30 of the transcript, after Corazon Davis had asked again who cut the deceased's neck, the applicant said:- "We actually took turns. He did half, I did the other half. I tell you I couldn't stomach it". 57 At page 31 of the transcript, after being asked again by Corazon Davis who slashed the deceased's neck, the applicant said:- "We did it one after the other. When he finished, I followed". The applicant then said:- "After the slashing, I went to sleep … and Hector left". 58 At page 37 of the transcript the applicant said:- "Yeah, it was both of us. Since that was done by both of us, I cannot say that it was him alone. So whatever one did was done by the other as well. Because what was done was done: there was no other choice. It was a decision we made together".

Further Findings of Fact 59 It is not necessary for me, in order to decide this application, to resolve all of the conflicts in the evidence. I will, however, make findings on some of the matters on which there was a conflict in the evidence. 60 I am prepared to accept that the applicant had said to his legal advisers a number of times before 8 November 2005 words to the effect that he had not opposed being extradited and had agreed to come to Australia, because he believed that he was innocent. 61 I find that, after I had made my ruling on 8 November 2005, Mr Marr said to Mr Wheeler that, because of my ruling, "I think he (the applicant) should plead guilty." I do not accept that Mr Marr said:- "I am going … to get him to plead guilty", as was alleged by Mr Wheeler. 62 At the conference in the cells after my ruling Mr Marr told the applicant that my decision ruling that Corazon Davis' evidence was admissible would make it very difficult to win a trial. Mr Marr explained to the applicant the different bases on which a jury might find the applicant guilty of murder, namely on the basis that it was he who had killed the deceased or on the basis that he and Trocio had jointly killed the deceased or on the basis that he was liable as a principal in the second degree, that is as an accessory. Mr Marr explained that the applicant could be found guilty as a principal in the second degree or as an accessory on the basis that he had uttered words of encouragement to Trocio. 63 I find that at this conference Mr Marr explained to the applicant the evidence the Crown might call at a trial of the applicant, including evidence of alleged admissions made by the applicant to Manalasay, evidence of the alleged admissions made to Corazon Davis, evidence by Trocio, if he was called by the Crown, and evidence from a pathologist, some of whose opinions based on an examination of the remains of the deceased's body were inconsistent with the applicant's version of what had happened on 15 December 2002. 64 I find, as stated by Mr Marr in his evidence, that he "firmly advised Mr Almirol that he had little or no prospect of being found not guilty because of the admissions he had made to Corazon Davis". Mr Marr said to the applicant "I think we will lose this case". Mr Marr did tell the applicant that he would fight the case, if that was what the applicant wanted. Mr Marr explained to the applicant that he would receive a lesser sentence if he pleaded guilty. 65 I find that Mr Marr told the applicant on a number of occasions that he had to make a decision whether or not to plead guilty. I accept that Mr Marr told the applicant that the applicant had only a limited amount of time in which to make his decision. 66 In paragraphs 17 to 23 of his first affidavit Mr Wheeler alleged that from his position outside the interview room he heard Mr Marr say various things. I accept this evidence by Mr Wheeler to the extent, but only to the extent, to which it is in accordance with the findings I have already made. 67 I accept that, as a result of what he had been told by Mr Marr and particularly that he would lose at a trial and that he would receive a shorter sentence if he pleaded guilty, the applicant "agreed to plead guilty as it was my (the applicant's) understanding that my barrister was telling me that it would be the best thing for me to plead guilty". I do not accept that, as asserted by the applicant, Mr Marr knew that the applicant thought that he was innocent. 68 As regards the written instructions, Exhibit 1, I do not accept, as was claimed by the applicant, that, at the time of signing the document, he did not understand what was meant by the word "accessory" or by the words "by my presence words and encouragement" occurring in the document. Mr Cavestany gave evidence, which I accept, that he is a very good interpreter (indeed he was the applicant's preferred interpreter), that he interpreted the written instructions to the applicant word for word, that the applicant asked questions, including asking for a definition of the word "accessory", that Mr Cavestany answered the applicant's questions, that Mr Cavestany confirmed with the applicant that the applicant understood the written instructions and that, after the written instructions had been read to the applicant, the applicant asked that the further line be added to the instructions. I am satisfied that the applicant understood that Trocio had been sentenced on the basis that he was an accessory and that the applicant considered that he also should be sentenced on the same basis and should not receive a heavier sentence than Trocio. 69 As stated earlier in this judgment, Mr Wheeler did not agree with, and was upset by, the advice given by Mr Marr and the decision to plead guilty and indicated as much to Mr Marr on 8 November 2005.

Submissions of the Parties 70 It was submitted by counsel for the applicant that the grounds on which the application was based had been established. 71 The applicant was a person from the Philippines, whose mother tongue was not English and who was not familiar with the New South Wales legal system. 72 Up until 8 November 2005 the applicant had steadfastly maintained that he was innocent. 73 There were explanations which were consistent with the applicant's innocence of the apparent admissions made in the telephone conversation with Corazon Davis. 74 I should find that on 8 November 2005 the applicant had agreed to plead guilty, against his will, as a result of pressure from his counsel or at least as a result of his feeling that he was being subjected to pressure. 75 The applicant's solicitor Mr Wheeler had not advised the applicant to plead guilty and had in fact disagreed with the advice given by counsel and with the decision to plead guilty. 76 An application for leave to withdraw the plea of guilty had been brought fairly promptly and before any further substantive step had been taken in the criminal proceedings against the applicant, for example the sentencing of the applicant. 77 It was also submitted by counsel for the applicant that it would have been prudent for Mr Marr to seek to obtain from the Crown an agreed set of facts on which the applicant would be sentenced, before arranging for the applicant to enter the plea of guilty. 78 In opposing the application, the Crown Prosecutor submitted that the applicant had given clear written instructions that he would plead guilty, which had been interpreted to him by an interpreter whose competency was not challenged. 79 It was clear that the applicant understood that he was pleading guilty and understood the basis on which he was pleading guilty, that is as an accessory. 80 It was submitted that the Crown case against the applicant was very strong and that attempts to explain away the admissions made by the applicant to Corazon Davis had been unsuccessful. There was, indeed, no real question about the applicant's guilt to be tried. 81 Mr Marr's advice, once Corazon Davis' evidence had been ruled admissible, was appropriate advice in the circumstances. 82 The Crown had already indicated, before the plea of guilty was entered, that the Crown would not agree to a set of agreed facts, because of the conflicting claims by the applicant and Trocio about the roles each had played.

Decision 83 I have not found this application easy to determine. 84 I accept, as was submitted by the Crown, that the applicant gave written instructions which had been interpreted to him, that the applicant when he pleaded guilty understood that he was pleading guilty and understood the basis on which he was pleading guilty and that the Crown case against the applicant, that he was guilty of murder, even if only as an accessory, is very strong. The applicant's case would appear to be that, although he was present on 15 December 2002 and although he admittedly struck the deceased with a chair and although the following day he admittedly participated in cutting up the body of the deceased and disposing of the parts, he did not on 15 December 2002, while talking to Trocio, give Trocio any encouragement to kill the deceased. 85 I consider that advice given by Mr Marr on 8 November 2005 to the effect that, following my decision on the admissibility of Corazon Davis' evidence, it was unlikely that the charge could be successfully defended and that the applicant should give serious consideration to pleading guilty, was proper advice in the circumstances. 86 I have, nevertheless, decided that, for a combination of reasons, I should grant the application. I will state my reasons. 87 The applicant is a person from the Philippines, whose mother tongue is not English and who is not familiar with the New South Wales legal system. 88 The crime with which the applicant is charged is the crime of murder, which is the most serious of all crimes. 89 Up until 8 November 2005 the applicant had maintained his innocence and the applicant had not been given any warning that it might become advisable to change his plea. 90 It may be that it is possible to explain some of the apparent admissions to Corazon Davis on the basis that Corazon Davis or the applicant was confused about whether they were talking about the cutting of the deceased's throat, in which the applicant denies he participated, or the cutting up of the deceased's body the following day, in which the applicant admits he participated. It may be that it is also possible to explain some of what the appellant said to Corazon Davis on the basis of some linguistic or cultural practice in the Philippines, whereby a person who is present assumes responsibility for what someone else does, even though the first person does not participate in the doing of the act. 91 On 8 November 2005 the applicant was told by counsel that counsel did not think that the case could be won, that the applicant would receive a lesser sentence if he pleaded guilty, that counsel's advice was to plead guilty, that the applicant had to make a decision whether or not to plead guilty and that there was only a limited amount of time in which to make a decision. In these circumstances I accept that the applicant probably felt that he was under pressure. 92 The application for leave to withdraw the plea of guilty was made fairly promptly and in fact before there had been any substantive hearing in the proceedings on sentence. In these circumstances there is less need for a high degree of caution before allowing a plea of guilty to be withdrawn. 93 On 8 November 2005 the applicant was not assisted in making a decision by any advice from a solicitor. Mr Wheeler did not give the applicant any advice and in fact disagreed with the advice counsel had given. Mr Ash, who was the applicant's actual solicitor, was not at court. 94 I have concluded that there would be a miscarriage of justice if I did not grant the applicant leave to withdraw his plea of guilty and I grant the applicant leave to withdraw his plea of guilty.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Judgment 1 JAMES J: This is an application by Alejandro Almirol for leave to withdraw a plea of guilty made by him on 8 November 2005 before me to a charge that on 15 December 2002 at Regents Park he murdered Palatavaki Taueli, who I will refer to as "the deceased". 2 The grounds of the application are that the applicant did not intend to plead guilty and that the plea of guilty was made as a result of pressure to which he was subjected. The two grounds are interrelated and not independent of each other. In addition, it is submitted that there would be a real question to be tried as to whether the applicant is guilty of the crime to which he pleaded guilty. 3 At the hearing of the application there was no dispute about the principles I should apply in determining the application. 4 In R v Parkes (2004) NSWCCA 377 Hodgson JA, with whose judgment the other members of the Court of Criminal Appeal agreed, said at par 49:- "In the present case, the application to withdraw the plea was made before sentence and possibly before conviction … but while more caution might be required where leave to withdraw a plea is sought after conviction and sentence, the principles which apply where the application is made before conviction and sentence are to similar effect … in general, leave will be granted if the applicant for leave shows that the plea did not arise from genuine recognition of guilt (whether because of misunderstanding of the facts or of the elements of the charge, or because of pressure or because of some other reason) and that there is a real question to be tried". 5 In R v Boag (1994) 73 A Crim R 35 Hunt CJ at CL, with whose judgment the other members of the Court agreed, stated the test more generally at 36-37, as being whether a miscarriage of justice has occurred or would occur, if the applicant was not permitted to withdraw his plea of guilty. In Boag Hunt CJ at CL observed that "a miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty". Hunt CJ at CL stated that an applicant for leave to withdraw a plea of guilty bears the onus of showing that there is or would be a miscarriage of justice, if leave was not granted to withdraw the plea of guilty. 6 The applicant is not the only person who has been charged with the murder of the deceased. Prehector Trocio pleaded guilty before me on 31 March 2005 to the murder of the deceased and was sentenced by me on 17 June 2005 to a term of imprisonment of 12 years with a non-parole period of 8 years. Trocio was sentenced on the basis of a set of facts which had been agreed by the Crown and by Trocio's legal representatives, according to which the present applicant was the principal offender in the murder of the deceased and Trocio did little, if anything, more than act as a lookout. It is necessary to disregard, and I do disregard, that set of agreed facts in determining the present application. 7 The evidence on the application consisted of:-

For the applicant:- affidavits by the applicant, Mr Ash his solicitor, Mr Wheeler a solicitor who had acted as agent for Mr Ash and Mr Cavestany a Tagalog interpreter.

The applicant, Mr Wheeler and Mr Cavestany also gave oral evidence at the hearing of the application.

For the Crown:- two affidavits by Mr D A Marr, a barrister who had appeared for the applicant.

30/03/2007 - Supression order lifted - Paragraph(s) 1-94

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 : Regina v Almirol [2006] NSWSC 898 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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Judgment (23 paragraphs)

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