REGINA v Kevin John SMITH

Background Facts 21 The appellant and his wife were married in 1967 and had six children. The marriage involved many years of violence towards Mrs Smith by the appellant. In 1997 the appellant's wife left him, moving to a secret location. The appellant attempted to gain information as to her location from the six children and several apprehended violence orders were obtained by the children against him because of the violence offered towards them. One of his children, Duncan, and his girlfriend Madelyne Doolan, were obliged to move out of their Tarago property because of the appellant's actions. 22 On 16 January 2000 Duncan Smith and Ms Doolan went to do work on the Tarago property. In the late afternoon the appellant drove his vehicle to the premises producing a sawn-off shotgun which he levelled at his son who ran into the house to warn Ms Doolan. Duncan Smith leant against a door to keep out the appellant who pushed the barrel of the gun through the partly open door and pushed his way in. He directed the terrified young couple to lay on the floor. The appellant said: "No-one is going anywhere until I see her." 23 When Duncan Smith told his father that he did not have his mother's contact details the appellant said: "Well you had better think of something because no-one's going anywhere until I see her." 24 This continued for some twenty seven hours during which time the appellant kept the sawn-off shotgun pointed at the hostages and made threatening remarks about the use of the gun. The hostages had no food and were not permitted to leave to get food. They did not eat during the period and Ms Doolan could only go to the toilet with the door partly open. 25 After the appellant arranged for the re-connection of the farm telephone the appellant directed his son to telephone his sister Vicky to obtain the appellant's wife's telephone number. As the son had the gun pointed at him, he could not tell his sister the true circumstances but his sister realised something was wrong, gave him the number and said to eat the paper so the appellant couldn't get it. 26 Duncan Smith then rang his mother and spoke to her in the presence of the appellant. During this call the appellant forced Ms Doolan to say that she was "OK" loudly enough for Mrs Smith to hear. Mrs Smith apprehended that there was a dangerous situation from her son's manner of speaking and agreed to meet her husband to diffuse the situation. The appellant then unloaded the gun and left on the night of 17 January 2000. Neither Duncan Smith and Ms Doolan nor Mrs Smith contacted the police because of their fear of the appellant. 27 Mr Long, a clinical nurse, proposed that he act as mediator for a meeting between the appellant and his wife which was arranged for 27 January 2000 at Cadia House in Orange which is a community clinic for people with psychiatric illnesses. The appellant had engaged a private investigator to follow Mrs Smith to ascertain her whereabouts and lifestyle. He told the investigator that he needed to serve the wife with Family Law Court papers. 28 On 27 January 2000 the appellant was stopped by state protection officers and was arrested. The officers found a sawn-off shotgun and shotgun ammunition, two knives and two sets of handcuffs. They also found a brown balaclava, a last will and testament and a roll of duct tape. The appellant wrote a letter to his wife in which he said that he would be killed by her actions. This letter breached the apprehended violence order. 29 The appellant has submitted a considerable number of hand written pages as well as annotated and marked copies of statements and transcripts. The first ground of appeal is that he was not in a fit mental state to enter a guilty plea on the detain for advantage charge and all the scheduled convictions and that his legal representatives failed to ascertain his mental state. 30 The appellant says that he was emotionally vulnerable at the time of entering the guilty plea and his decisions were obscured by the taking of Diazepam which impaired his consciousness and thought processes. He submits that at the time of entering the guilty plea he was in a state of depression, anxiety and frustration brought about by the fact that his legal representative failed to act on his longstanding instructions as to gathering evidence and witnesses to be called. 31 The appellant gave as an additional reason that his legal representative, a barrister, created an inappropriate influence, enticement and coercion to the appellant to enter the guilty plea. At the time of the guilty plea he said that his legal representative told him that jury influencing and tampering had recently been reported in the Goulburn district and a transfer to another district could not be obtained and he was caused to fear trial proceedings. The appellant said that he was, at the time of entering the guilty plea, depressed, concerned and frustrated by his legal representative's lack of effort and reluctance to obtain what he called his most vital file from his previous solicitors. 32 He said that at the time of the guilty plea he was advised by his legal representative that the presiding judge had stated to him (the barrister concerned), in chambers, that if the appellant pleaded guilty the sentence would be time served plus a little bit and that the appellant would be free before the next Christmas allowing him to get on with his life and that is the reason he entered the plea of guilty. 33 Further, the appellant said that at the time of entering the guilty plea he was advised that he would regret it if he proceeded with the trial subjecting his family to the obvious recriminations and repercussions which would follow. 34 The appellant's case asserts miscarriage of justice and that Knight DCJ was in error in refusing the application to withdraw the plea of guilty as the integrity of the plea was tainted by mistake or other circumstances as an admission of guilt. 35 These are the same submissions put before the court today in the oral and extensive written submissions which are the same submissions that were used in the application to withdraw his plea heard by Knight DCJ at which hearing, his Honour asked the appellant why he had pleaded guilty, the answer being: "At the time I was concerned for the ramifications for my family. I wasn't really, I wasn't thinking clearly anyway but there was emotional reasons coming in, feelings for my family, the fact that I was told that I could be out by Christmas. There was concerns about, I had concerns about this jury tampering thing, everything, you know." 36 The appellant has told the court in writing that he had gone off Diazepam and that he had done the wrong thing in pleading guilty. 37 The reason the appellant says the plea was incorrect is that he is innocent and not guilty of the allegations made against him and has a strong desire to be acquitted. 38 In the hearing before Knight DCJ on the motion to withdraw the plea, evidence was tendered of the written instructions given to his barrister at the time of entering the plea of guilty and the court heard that at this time the appellant had said in court: "I'd like to, I've seen members of my family and I'd like to apologise to my family."