Regina v Phillip Abbruzzese

District Court of NSW|2007-01-30|Before: Grove J, Kirby JJ

CITATION: Regina v Phillip Abbruzzese [2007] NSWDC 103

HEARING DATE(S): 15/9/2006, 29/9/2006, 3/10/06, 12/12/06

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Pleas - Application to withdraw pleas of guilty - relevance of applicant's mental health - whether susceptible to anxiety from the prosecution and related advice - whether competent to make properly informed decision to plead guilty.

R v Abbruzzese [2006] NSWCCA 207 CASES CITED: Wong v DPP (2005) 155 A Crim R 37 R v Van (2002) 129 A Crim R 229 at [48] Meissner v The Queen (1995) 184 CLR 132 @ 141

PARTIES: Commonweath Crown Phillip Abbruzzese

COUNSEL: Ms C Dobraszczyk Mr Davidson

1 This is an application by Phillip Abbruzzese (the Applicant) for leave to withdraw pleas of guilty he entered upon arraignment in respect of two charges arising from frauds upon the Commonwealth of Australia. The parties agree that this occurred on the 25th July 2005.

2 There is also before me, in separate proceedings, an application by the Applicant's wife, Violetta Kostadinoska, who wishes to withdraw her pleas of guilty in respect of two of a number of charges upon which she has been presented arising generally from the same facts and circumstances. She is separately represented. Her application has been listed contemporaneously with that of this Applicant as the proceedings have continued. However, such connections as there are between the Applicant and his wife in these prosecutions do not impact upon the decision I am called upon to make in this present matter.

3 The application is before the Court, upon its remission from the Court of Criminal Appeal to be dealt with according to law, following the successful Crown appeal from the orders of his Honour Judge Freeman on the 13th April 2006 when his Honour entered pleas of not guilty on behalf of the Applicant: Regina v Phillip Abbruzzese [2006] NSWCCA 207.

4 There has been some confusion as to the indictment in respect of which the application has been brought. I propose to deal with this at the outset in these introductory remarks.

5 In the Court of Criminal Appeal, Grove J, with whom Hidden and Kirby JJ agreed, noted the history of the proceedings to the date of the appeal. His Honour referred to charges to which the Applicant pleaded guilty in the Local Court, from which he later resiled before Blanch CJDC who then fixed a date for trial.

6 His Honour noted that advice was subsequently given to the Director of Public Prosecutions that the Applicant would be entering pleas of guilty, thereby reverting to his original position, and thereafter the matter was listed before Berman DCJ and then Puckeridge DCJ for sentence proceedings.

7 His Honour raised questions as to precisely when the Applicant was arraigned, however at paragraph [26], by a process of deduction from terms of written submissions and the oral argument of counsel, his Honour concluded that it was common ground that arraignment did in fact take place, and that it took place at some point prior to the 13th April 2006. His Honour noted that the copy of the indictment included in the appeal book was signed but undated and the back unendorsed.

8 It was common ground between the parties before me that the relevant arraignment occurred on the 25 July 2005 before his Honour Judge Berman S.C.

9 Unfortunately, when the matter was adjourned after the presentation of the evidence upon which the parties wished to rely in this Court, I was left with the impression that there had been some change made to the indictment upon which the Applicant had been presented, by the replacement of the initial series of charges with a single count.

10 This impression was taken from the nature of the copies of the indictment placed before the court. One of those has the date 4 February 2005 on its face, whereas the back sheet shows the date of the plea as the 25 July 2004 before his Honour Judge Berman S.C. Moreover, the plea recorded on the back sheet is expressed as "2 x G" notwithstanding that there was only one charge set out on the document. There is no signature on this copy. The affidavit of Robert Ian Davidson, solicitor for the Applicant, of the 18th August 2006 filed in these proceedings has as annexure A, a document described as the proposed indictment. This copy of an indictment also contains only one charge, expressed to be a further charge in different terms to those used in the first. This document is signed.

11 Upon comparison of these documents it became apparent that they are each partial copies of the one indictment. I have since been provided with access to the original document which discloses that the Applicant was charged with two offences, the first contrary to section 29D of the Crimes Act, 1914 (Cth) and the other contrary to section 135.1(5) of the Criminal Code, 1995.

12 The first count is expressed in the following terms: Between about 5 February 1998 and about 10 May 2001 at Sydney did defraud the Commonwealth, namely the Commonwealth Services Delivery Agency, in that he dishonestly obtained Disability Support Pension which was not payable because he was in receipt of income in the name Filippo Spano and his partner, Violet Stoikovska, was in receipt of income in the name of Violet Adrevska.

13 Beneath this charge there are 11 paragraphs of particulars upon which the Crown relies for this charge, wherein are summarised the receipt of income by the Applicant and his partner from various employers, the receipt of compensation payments, and the receipt of rental income from real estate.

14 The second count is expressed in the following terms: Between about 24 May 2001 and about 19 December 2002 at Sydney did dishonestly cause a loss to another person, namely the Commonwealth entity the Commonwealth Services Delivery Agency, knowing that such a loss would occur, in that he did obtain payment of Disability Support Pension in the name Philip Abbruzzese without disclosing to the Commonwealth that he was in receipt of income in the name Filippo Spano, and his partner, Violet Stoikovska, was in receipt of income in the name of Violet Andrevska.

15 Beneath this charge there are 4 paragraphs of particulars upon which the Crown relies for this charge, wherein are summarised the receipt of income by the Applicant and his partner from employers, the receipt of compensation payments, and the receipt of rental income from real estate.

16 It is the pleas of guilty entered to these charges with which the court is concerned.

17 The Application came on for hearing before me on the 15th September 2006. Affidavits filed in support of the application are from Ian Robert Davidson of the 18th August 2006, and from the Applicant of the 23rd August 2006. On behalf of the Respondent Crown, affidavits by Wendy Patricia Firth of the 22nd August 2006 and the 15th September 2006 were filed. The earlier of these has as annexures A and B, affidavits by Ms Firth of the 16th February 2006 and the 15th March 2006.

18 The Applicant gave evidence and was cross-examined.

19 Exhibit A is a report by Emma Collins, psychologist, of the 12th September 2005 and Exhibit B is a report by Dr. Jonathan M Carne, Consultant Forensic Psychiatrist, of the 3rd November 2005. These were tendered by the Respondent Crown.

20 The submissions of counsel on behalf of the Applicant were, in essence, that by reason of his state of mental health, to be ascertained from the reports of the aforementioned practitioners and his evidence to this court, the Applicant was unusually sensitive to the pressures brought by the proceedings against him and their possible outcome, to the extent that he could not properly assimilate the advice of his representatives from time to time regarding his options. It was said that the Applicant's mental health left him so susceptible to the effects of the anxiety generated by the prosecution and the advice he was receiving, that he was unable to make a properly informed decision as to whether he should plead guilty or not guilty to the charges.

21 Counsel expressly disavowed any suggestion that there was improper pressure brought by the solicitors or counsel who have acted for the Applicant throughout these proceedings. Rather, it was by reason of the suggested sensitivity and susceptibility that the integrity of these pleas was brought into question.

22 Counsel submitted that the Applicant's vulnerability was such that his pleas of guilty could not be seen to be a free and voluntary confession to these charges, or attributable to a genuine consciousness of his guilt.

23 Counsel acknowledged that there must be good and substantial reasons before the Applicant should be permitted to withdraw his pleas, but submitted that these were present in this matter.

25 The assessment of the Applicant's vulnerability, or susceptibility, and whether these pleas of guilty lacked the integrity required before the court ought to act upon them, will be informed by reference to the history of these proceedings.

26 The Applicant appeared before a magistrate in the Downing Centre Local Court on the 31st March 2004. He was represented by counsel, who was appearing upon instructions from the Applicant's solicitors. Pleas of guilty were entered to the charges and he was committed to the District Court on the 16th April 2004 for sentence.

27 On that day Blanch CJDC adjourned the proceedings to the 11th June 2004 when the Applicant appeared before her Honour Judge Tupman. A medical certificate was tendered speaking to the birth of a child to the Applicant's partner, and the proceedings were adjourned to the 9th July 2004 for mention to set a date for sentence.

28 On the 9th July 2004 the matter was adjourned for sentence to the 26th August 2004. On that date it was noted that a pre-sentence report had not been prepared for the Applicant and his Honour Judge Graham adjourned the proceedings to the 28th October 2004 for sentence.

29 The Applicant continued to be represented by the same counsel and solicitors.

30 By letter of the 13th September 2004 the Director of Public Prosecutions received a letter from the solicitors advising that they ceased to act for the Applicant. A Notice of Ceasing to Act was filed.

31 On the 28th October 2004 the Applicant appeared before his Honour Judge O'Reilly represented by a solicitor. He informed the court that his instructions were not consistent with the pleas of guilty and he was given leave to withdraw from the matter.

32 The proceedings were adjourned to the 19th November 2004 and on this date his Honour the Chief Judge adjourned the proceedings to the 17th December 2004 for mention and to set a date for sentence proceedings. The Applicant was represented by the Legal Aid Commission on this occasion.

33 On the 17th December 2004 the Applicant was again represented before his Honour the Chief Judge, and the proceedings were adjourned to the 21st January 2005 for mention and to set as date for the sentence proceedings.

34 On the 21st January 2005 the Applicant adhered to his pleas of guilty and the proceedings were adjourned to the 31st March 2005 for sentence, however on that date the Applicant reversed his pleas and the matter was adjourned for mention on the 4th February 2005 to set a trial date. On that date the trial was set down for hearing over five weeks to commence on the 18th July 2005. This date was later vacated and the trial listed to commence on the 25th July 2005.

35 On the 20th July 2005 the Director of Public Prosecutions received a letter from solicitors acting for the Applicant advising that he would be entering pleas of guilty to both offences on the 25th July 2005. On that date the Applicant appeared before his Honour Judge Berman S.C. represented by counsel with a solicitor instructing him.

36 I do not have a transcript of those proceedings, but as I have noted earlier in these reasons, it is common ground that the Applicant pleaded guilty on this occasion, and there is an endorsement to that effect on the back sheet of the indictment, a copy of which was before me.

37 His Honour adjourned the proceedings from that date to the 27th July 2005 for mention. The pleas of guilty were confirmed and the proceedings adjourned to the 30th September 2005 for sentence.

38 On that date the matter was mentioned before his Honour Judge Puckeridge Q.C. The Applicant was once against represented by counsel. An adjournment was sought so that the Applicant might be assessed by a psychiatrist. The Crown tendered material upon which it intended to rely, and the proceedings were adjourned to the 4th November 2005 part heard.

39 On the 4th November 2005 the Applicant appeared with his counsel, however he advised the court that the Applicant would traverse his plea if he were called to give evidence, and sought leave to withdraw.

40 A transcript of these proceedings has been included in the material before me. These record representations by the Applicant after his counsel departed. The Applicant told his Honour that he wanted the matter adjourned again so that he could obtain further legal representation. He wanted to get a private solicitor. He complained of the seizure by the authorities of his property and money. He told the court that he only pleaded guilty to finish the case and that he had done nothing wrong. At page 2 the Applicant is attributed with the following: Your Honour I only plead (sic) guilty to finish the case because there's nothing done wrong. I just want to end it, like I said I've got seven kids and it stop, they've sold two properties off me. They got $100,000 cash in the bank, no-one tells me where the money is, no-one tells me how much I have got to give them, but the solicitor tell me you got to plead guilty, you can't pay because you admitting you're working. Of course I'm admitting I'm working, I'm not denying it.

41 He told the court that he did not want the Legal Aid Commission to represent him, for reasons given at line 41 on page 2: Because I say to them not guilty and they say to me 'no you have to plead guilty, I can't represent you otherwise.' This is the honest truth.

42 He told the court that he wanted a private solicitor, that there were funds available to pay a private solicitor but they were being held by the authorities, and he understood that there were two aspects of the proceedings. This appears at page 3 line 20: …there's two cases here they're saying, one is for the criminal matter I think what I understood and after today or whatever I have to go for a civil - and all the solicitors there they say to me 'I don't understand why they done this to you', but no-one wants to tell me what's happening.

43 At the conclusion of the exchange his Honour indicated that the court could not accept the pleas of guilty and stood the matter over until the 30th November 2005. On that date a solicitor from the Legal Aid Commission appeared to inform the court that the matter was yet to be allocated. The matter was adjourned to the 21st February 2006 for the hearing of an application to withdraw the pleas of guilty.

44 On the 1st February 2006 the Director of Public Prosecutions received a letter from the Legal Aid Commission advising that they were no longer instructed in the matter and no longer had authority to act for the Applicant.

45 On the 21st February 2006 the Applicant informed the court of the name of the solicitor he was intending to instruct to act for him. A letter was received by the Director of Public Prosecutions on the 6th March 2006 from that solicitor confirming that his firm was not instructed to appear on behalf of the Applicant.

46 On the 13th April 2006 the Applicant appeared unrepresented before his Honour Judge Freeman. I have a transcript of those proceedings. It is annexure C to the affidavit of Ms Firth of the 22nd August 2006 and annexure D to the affidavit of Mr. Davidson of the 18th August 2006.

47 The Applicant told his Honour that he pleaded guilty to these charges in 2004 and 2005 because he wanted to finish the case. He said it had been going on for too long, he is a schizophrenia (sic); he has seven children, some of whom were in and out of hospital over the last month with seizures. He complained of his most recent solicitors telling him that if he wanted to plead not guilty he would need to find somebody else to represent him. He continued at page 2: Now how can I plead guilty or not guilty when the prosecution - I don't know if it's up to them but somebody has to tell me the law and somebody needs to tell me how much money I owe them and how much money they have to give me back because they've got nearly one million dollars off me your Honour. They sold the house. On the paperwork it says anything that I'm supposed to have in my possession before '93 is not supposed to be touched and they sold the flat on me. How can I plead guilty.

48 The matter stood in the list, and when called later his Honour once again raised the earlier pleas and asked the Applicant why he should be permitted to plead not guilty. The Applicant responded at page 6: Because I am not guilty your Honour. I'm not guilty and no solicitor wants to represent me like that. Why? Aren't solicitors supposed to do what I tell them to do? If I say I'm not guilty they have to represent me not guilty. They can't say to me because you don't want to do what - we want you to plead guilty, I have to plead guilty. How can I do that? They've been telling to do this. I've never said, not guilty or guilty. They've been telling me all to do this but nobody ask me any question what happened, how it happened, why did you do it or what did you do. They haven't asked me, not one person your Honour. The only question they told me, we've gone through your transcript and you have to plead guilty otherwise you're going to get a bigger sentence if you plead not guilty. But in the meanwhile this has been nearly six years now. I've been in the street with the five little children.

49 His Honour noted that there was no formal application before the court for the pleas to be withdrawn, and the exchanges continued thereafter. At page 13 he asked the Applicant whether he understood what a plea of guilty meant, to which he responded: Yes. I - to have an explanation with it, what about if I done a mistake. I'm not guilty your Honour.

50 The transcript at page 14 provides further illumination upon the Applicant's understanding of matters. HIS HONOUR: Did you understand Mr Abbruzzese that the Commonwealth were saying that you had received a disability support pension between 1998 and 2001 when you were not entitled to it? You understand that the Commonwealth says you received a pension and you were not entitled, did you understand that? OFFENDER: I was entitled to it. I am entitled to it. This is the point your Honour. HIS HONOUR: The Commonwealth says you were not entitled to it because you were receiving payments which disqualified you. OFFENDER: That's wrong your Honour. You are allowed to go to work. You can earn $10,000 a year on the pension and at the end of the year you do your tax return and I've been doing all that. I've been doing all that. I've got proof of all that stuff. HIS HONOUR: You understand these are the elements of the charge which the Crown has brought? OFFENDER: Yes. HIS HONOUR: Were these explained to you at the time you entered your plea of guilty or not? OFFENDER: No, no your Honour. HIS HONOUR: Were you not told that that was the charge, that you'd received a disability pension when you were not entitled to it? OFFENDER: No I think they told me it was just fraud the charge. HIS HONOUR: You understood, did you not, or was it explained to you that the allegation was that you received a disability pension when you were not entitled to it? OFFENDER: Yes. HIS HONOUR: You understood that? OFFENDER: Yes. HIS HONOUR: That was explained to you? OFFENDER: Yes. HIS HONOUR: Did you understand and was it explained to you that the reason the Commonwealth said you were not entitled to the pension was because you were receiving other moneys which disqualified you from receiving the pension, namely that you were being paid under another name for working and that your wife was receiving money as well. OFFENDER: Yeah but we're separated. She's entitled to receive it. This is a big mistake your Honour. This a big mistake and this is why I - I cannot plead guilty to it when I'm entitled - HIS HONOUR: Well how did you plead guilty to it? OFFENDER: Because of the - HIS HONOUR: Twice. OFFENDER: The solicitors your Honour they've been pushing me. You have to plead guilty because you get lesser but nobody ask me what's the story. They all gone off the transcript. Not one solicitor he ask me what's your story. And they themself told me I can't represent you. I didn't say to them not to represent me. But they only want to represent me only if I plead guilty. How can that be?

51 Thereafter his Honour expressed the view upon what the Applicant had said to him, albeit not by way of evidence, that the allegation that he was not given advice because he was not asked or allowed to fully instruct his lawyers meant that the application could not realistically be refused. The exchanges continued, and at page 17 his Honour suggested that in the circumstances it was impossible for the Applicant to represent himself in the inquiry that would be required before he should be permitted to withdraw his plea. His Honour therefore took the step of entering a plea of not guilty on the accused's behalf, noting that the plea of guilty entered earlier had been rejected by his Honour Judge Puckeridge Q.C.

52 I note that the transcript records his Honour speaking of the plea in the singular, whereas there were two charges to which the Applicant has pleaded guilty on two separate occasions.

53 The Court of Criminal Appeal held that this approach by his Honour was an error. The essential criticism was that his Honour entered pleas of not guilty on behalf of the Applicant upon the representations by the Applicant from the bar table, without requiring the Applicant to formally withdraw his pleas and offer evidence as to the facts upon which the court should have considered whether he ought to be permitted to do so.

54 In the light of events that evolved after I reserved my judgement, to which I will refer in due course, it is appropriate that I consider in some detail the contents of the reports Exhibit A and Exhibit B respectively. Neither the psychologist Ms Collins, nor the psychiatrist Dr. Carne was required for cross-examination.

55 The Applicant was seen by Ms Collins for seventy-five minutes on the 8th September 2005. She noted that the Applicant was born on the 28th May 1966. He is now 40 years of age.

56 Ms Collins noted that although he was generally cooperative throughout the assessment, he was agitated and distressed and it was not considered appropriate to administer psychometric testing. She said that he was also vague in his self-report.

57 I note that Ms Collins had access to a pre-sentence report and to his criminal history. Neither of those documents is before me.

58 Ms Collins recorded a tragic history. The Applicant was born in Sydney of Italian parents who relocated back to their homeland when he was but months of age. His siblings, four older brothers and one elder sister, were all killed in a motor vehicle collision when the Applicant was aged three years. His Uncle was driving at the time, and he and the Applicant were the only survivors from the vehicle.

59 This loss, as one might expect, had a devastating impact. It is said that his father became schizophrenic, but it is not said that this was a sequelae to the grief suffered from his loss, and no connection apart from the temporal link to the event is discussed. The Applicant reports that his father had numerous admissions and was managed on anti-psychotic medication. According to the history, his father would scream at him, threaten his mother, or exhibit delusional behaviour, and on occasions both as a child and an adult the Applicant would be called upon to intervene prevent his father causing harm to his mother. These incidents included an occasion when his father attempted to stab his mother.

60 The Applicant's father died in 2004 from a heart attack, after having battled his mental illness throughout his life.

61 There were attempts to have the Applicant submit to assessment for the same condition, but he resisted these because of his experiences watching the treatment of his father over the years.

62 The family moved from Italy to Belgium, and then returned to Italy before returning to Australia in 1978 leaving the Applicant behind. He re-joined them in Sydney in 1982. He would have then been 16 years of age. He attended school in year 10, and was awarded a school certificate notwithstanding that in his assessment he was not entitled to it. He left school and worked as a tiler up until 1991. There is reference in the report to his release from gaol, after which he engaged in mostly short-term work.

63 He has been married twice, and has six children from these unions at the time of the report. From the first marriage he has a twenty-year-old son and a nineteen-year-old daughter. Contact with them has been intermittent due to his escalating drug use.

64 His present marriage has produced three sons and a daughter. They are aged from one year to five years of age as at the date of the report.

65 The Applicant suffers from Hepatitis C virus contracted through intravenous drug use. He has continuing pain from a back and leg injury suffered at work in 1997.

66 When in gaol he has been prescribed anti-psychotic medication but his belief is that it exacerbated his symptoms. Of these Ms Collins writes: … Mr. Abbruzzese reports that when he is feeling distressed, he hears voices that he likened to an angel and a devil. He said that these voices monitor his behaviour and often give him their opinion as to whether his behaviour is appropriate ("don't do that", "do this" etc). He also tells me that he sees what he reported to be antennae-like aerials at the top of his peripheral vision that are often stuck on walls or buildings. He states that these look like video recording devices that have been placed onto surfaces to capture information. Mr. Abbruzzese also said that he sees these when he is feeling 'bad'. Additionally, he reports that he is often suspicious of the motives of others and feels that there are people 'out there' that want to cause him ill will. When asked as to whether he thought these paranoid thoughts, auditory hallucinations and perceptual disturbances were troublesome, Mr. Abbruzzese tells me that he believes such occurrences are normal and he reported believing that everyone has these experiences.

67 The Applicant reported sustained abuse of drugs, including cocaine and heroin. He has since then been maintained on methadone. He is a regular user of cannabis.

68 As noted above, no formal cognitive assessment was performed due to the agitated state of the Applicant. Upon the observations made of him in the course of the interview and the history he gave however, it is thought that his cognitive ability falls within the low average to average range.

69 Ms Collins' assessment of the Applicant's personality, against the restless and agitated presentation, and the tendency to digress from the topic being discussed, was that he presented with mild delusions of persecution, and perceptual disturbance that encompasses both auditory and visual hallucinations. These indicated psychiatric illness, and when this was indicated to him he agreed to see a psychiatrist.

70 In her concluding remarks Ms Collins wrote: It is evident that Mr. Abbruzzese has a genetic vulnerability with regard to developing schizophrenia…It is possible that his substance abuse may have exacerbated his perceptual and delusional behaviour, and his ongoing abuse of cannabis remains of concern. Whilst the offences were not directly discussed with him, Mr. Abbruzzese's psychiatric presentation would likely have impacted upon his judgement and ability to exercise appropriate self-restraint. He currently impresses with symptoms that could be consistent with schizophrenia or perhaps an Axis11 presentation such as shizotypal personality disorder.

71 Dr. Carne saw the Applicant on the 2nd November 2005. He gleaned a somewhat briefer history from the Applicant, albeit in terms consistent with that attributed to him by Ms Collins.

72 Of his psychiatric history Dr. Carne notes: Mr. Abbruzzese described persecutory delusions, that he is being followed, auditory and visual hallucinations of a persecutory, contradictory and confusing nature and command auditory hallucinations. He described these present particularly when he is affected by cocaine but also when not drug-affected, on and off since the age of fourteen.

73 With regard to the offences with which he is charged he is attributed with the following: …Mr. Abbruzzese told me that he had pleaded guilty to get the matter over with but had not committed any offence. He told me that after having left gaol he found he was unable to obtain work because of the criminal record associated with his name of Abbruzzese, so he started using his mother's name, Spano. He told me he did start work but was injured and put in a Workers Compensation claim and then took part in a return to work programme with the full knowledge of the Commonwealth Employment Service and the GIO. He denied intentionally committing any offence during this period. Mr. Abbruzzese told me that in relation to allegations that he did not notify the Department of Social Security that he was married at times when he should have done so, that his marriage was turbulent and there were separations and then reunions. He told me that he in fact did declare those to the Department of Social Security. Mr. Abbruzzese also told me that he thought he had notified the Department of Social Security of the ownership of property or properties which were also the subject of some of the charges. Mr. Abbruzzese told me that the only work he undertook when in receipt of a pension was work undertaken as far as he was aware within the limits permitted by the pension.

74 The findings upon psychiatric examination are expressed thus: His emotions were labile during the interview, at times angry and often sobbing when talking about his difficulties. He repeatedly and adamantly asserted that he was innocent of the offences but that he was not being believed. He claimed that he was being victimised and that charges were being laid against him because of his past criminal record and that because he had been identified as a 'junkie'. In spite of his distress there was no evidence of formal thought disorder or of abnormalities or perception of belief, that is, no evidence of acute psychosis at the time of the interview. Mr. Abbruzzese told me that he had $100,000 in a bank account currently frozen by the authorities, sufficient to repay the alleged Social Security overpayment and he told me that he was prepared to do so.

75 Dr. Carne ultimately came to the view that on the balance of probability the Applicant's primary problem is a severe personality disorder with borderline and schizotypal features and significant substance/drug dependence. It is possible that he has schizophrenia, although in the doctor's opinion this is less likely.

76 The dates upon which the Applicant was assessed by Ms Collins and Dr. Carne were the 8th September 2005 and the 2nd November 2005 respectively. The sequence of events in which they took place was as follows:

(1) 31st March 2004 - appearance in the Local Court - plea of guilty entered; (2). 16th April 2004 - appearance before Blanch CJDC; (3) 11th June 2004 - appearance before Tupman DCJ; (4) 9th July 2004 - appearance in the District Court; (5) 26th July 2004 - appearance before Graham DCJ; (6) 13th September 2004 - letter from Applicant's solicitors advising the DPP of their ceasing to act; (7) 28th October 2004 - appearance before O'Reilly DCJ - solicitor appearing advised the court that his instructions were inconsistent with a plea of guilty and was given leave to withdraw; (8) 9 th November 2004 - appearance before Blanch CJDC; (9) 17th December 2004 - appearance before Blanch CJDC; (10) 21st January 2005 - appearance in the District Court - the Applicant adhered to his pleas of guilty - adjourned for sentence; (11) 31st March 2005 - appearance in the District Court - pleas reversed - adjourned for mention and to set trial date; (12) 4th February 2005 - appearance in the District Court - trial date set for 18th July 2005 - 5 weeks estimate - trial subsequently re-listed to the 25th July 2005; (13) 20th July 2005 - letter from solicitors for the Applicant advising the DPP of intention to plead guilty; (14) 25th July 2005 - appearance before Berman DCJ - arraignment - pleas of guilty; (15) 27th July 2005 - appearance in the District Court - pleas of guilty confirmed; (16) 8th September 2005 - consultation with psychologist Emma J Collins - reported on the 12th September 2005; (17) 30th September 2005 - appearance before Puckeridge DCJ - material upon which the Crown intended to rely tendered - adjourned to allow psychiatric assessment; (18) 2nd November 2005 - consultation with Dr. Jonathan M Carne, psychiatrist - reported on the 3rd November 2005; (19) 4th November 2005 - appearance before Puckeridge DCJ - court advised by counsel that the Applicant would traverse his pleas if called to give evidence - given leave to withdraw - his Honour indicated he could not accept the pleas in the circumstances; (20) 30th November 2005 - appearance in the District Court - matter yet to be allocated by Legal Aid - adjourned to 21st February 2006 for hearing of an application to withdraw pleas of guilty; (21) 1st February 2006 - Legal Aid Commission advised the DPP that they no longer acted; (22) 21st February 2006 - appearance in the District Court - unrepresented - the Applicant gave the name of a solicitor who was to represent him; (23) 6th March 2006 - letter from solicitor nominated by Applicant advising the DPP that they did not act; (24) 13th April 2006 - appearance before Freeman DCJ - pleas of not guilty entered on behalf of the Applicant; (25) 6th July 2006 - judgement of the Court of Criminal Appeal.

77 Thus, the Applicant pleaded guilty to these charges at committal, and adhered to those pleas until well after the proceedings were in the District Court for the sentence proceedings. He was, properly, permitted to withdraw his pleas and his matter was listed for trial. Within days of his trial he reverted to his original position, and pleaded guilty upon arraignment even though at that time he could have proceeded to trial should he have wished to do so. He again changed his position, after the psychiatric consultation on the 2nd November 2005. This was well after the commencement of the prosecution.

78 The Applicant did little more than embrace the terms of his affidavit when he was examined in chief. In that document he asserts that he is not guilty of the offences charged, acknowledges that he has been previously represented by a number of solicitors and counsel who have all advised that the case against him is a strong one, and that he should plead guilty thereby to have the benefit of the discount to which he is entitled. He claims that he has told all of them that he is not guilty and that he wants to proceed to trial. Every lawyer has told him, he asserts, that it is impossible to successfully defend the charges and they will not be able to do so.

79 He asserts that he pleaded guilty in the past, not because he believes he is guilty, but because of the pressure and the advice of his lawyers that they cannot defend him.

80 I note once more that counsel appearing for the Applicant disavowed any reliance upon any suggestion that there was inappropriate pressure brought to bear upon the Applicant to have him plead guilty to these charges.

81 The Applicant confirmed that he is presently medicated with Valium, which he had not taken for two days preceding this hearing, and was on methadone, but had not taken any of that drug during the preceding seven days.

82 When cross-examined the Applicant maintained that he was not guilty, and that he pleaded guilty only because of the advice he was given. He did not deny, indeed he accepted the history of the proceedings in which he pleaded guilty before a magistrate, reversed that position in the District Court, but then on the day when he could have had his trial chose to plead guilty to the charges presented by way of the indictment.

83 In the course of the cross-examination I noted that the Applicant became emotional and agitated, and presented in a manner well fitting the description given to him by Ms Collins and Dr. Carne.

84 Before turning to the principles and their application to the facts relevant to this question, I shall refer to events, which followed the 15th September 2006 when I reserved my judgement to be delivered on the 29th September 2006.

85 When the court convened on that date I was informed that the Applicant had the night before been taken into care as a result of a domestic disturbance at his home, and was presently being assessed at a mental health facility. The matter was therefore adjourned to the 3rd October 2006 so that further information could be provided, and for further evidence to be led should it have been the wish of the Applicant to do so. On that date there was still no information to assist the court with regard to the Applicant's state of health and I made orders to allow for the Applicant's bail to continue with conditions to facilitate his assessment and treatment as required, and for the preparation of a report or such other evidence that the Applicant might wish to offer upon his application.

86 Eventually, on the 12th December 2006, the Applicant's solicitor appeared on his behalf and tendered a discharge summary from the Prince of Wales Intensive Care Unit, in respect of the Applicant's admission on the 15th October 2006 and discharge on the 16th October 2006, together with a photocopy of his file from the Royal Prince Alfred Hospital to which he was taken on the 29th September 2006, and from which he was transferred to the Rozelle mental health facility on the 1st October 2006 until his discharge on the 5th October 2006.

87 This material became Exhibit 1 on the voir dire. The Crown objected to the tender of this material as irrelevant to the question of whether the Applicant should be permitted to withdraw his pleas of guilty, to be determined according to the facts and circumstances as they were at the time when the pleas were entered. I was reminded of the decision of Wong v DPP (2005) 155 A Crim R 37 in which the relevant principles were summarised by Howie J, all of which are applied to the facts and circumstances in which the pleas were entered.

88 The Crown acknowledged that the Applicant's mental health at the times to which the material speaks is relevant to the determination of sentence, but not otherwise in this case.

89 I raised the question of the fitness of the Applicant to take part in the proceedings, but the Crown submitted that this question would arise only if the Applicant was permitted to withdraw his pleas of guilty, upon which event section 20B of the Crimes Act, 1914 would be of application.

90 The Applicant's solicitor did not seek to have the matter adjourned further for counsel to argue the question of the Applicant's fitness and whether it was appropriate at this stage to consider the issue, but pressed the tender of the material in support of the application before me.

91 I have reviewed the material. It relates to two separate admissions.

92 The first for the period from 29th September 2006 until the 5th November 2006, following the domestic disturbance, which prompted the further adjournment of the proceedings. I have been given no assistance with regard to the records relevant to this admission. There is no report from any medical practitioner offering an interpretation of the observations made against the history taken from the Applicant and his wife. All that I am in a position to find is that there is a record of conduct on the part of the Applicant consistent with the observations made earlier by Dr. Carne and Ms Collins, but in the circumstances this is of limited assistance. I would not be prepared to make findings upon this material without evidence from a practitioner with the necessary training and experience to qualify them for the purpose of providing a reliable assessment of the Applicant's state of mental health.

93 The second admission, at the Prince of Wales Hospital, on the 15th and 16th October 2006 is the subject of a discharge summary. It appears that the Applicant had a fall of 1.5 metres onto rocks at Maroubra Beach from which he suffered injuries. According to the document, Reviewed by psych registrar and was not found to have any acute psychosis requiring treatment. Pt is refuing (sic) anti-psychotic medication and is not a candidate for a compulsory treatment order.

94 There is no evidence before me as to the circumstances of the fall.

95 I propose to admit these documents as some evidence relevant to the question of the mental health of the Applicant. Although the material relates to events which occurred after the occasion of the pleas of guilty, they are sufficiently proximate to bear upon the question of the Applicant's mental health when he pleaded guilty to these charges.

96 However, for the reasons offered, little weight is to be given to the evidence relevant to the first admission, and the findings upon the second admission offer but limited support for the representations made regarding to the Applicant's mental health. Moreover, I have no evidence before me regarding the circumstances leading to these admissions, beyond the bare references to those events in the documents tendered.

97 Accordingly, although I find that the documents are relevant, I find that they provide little assistance in the resolution of the question I must resolve.

98 The Applicant bears the onus of showing why he should have leave to withdraw these pleas of guilty: Regina v Abbruzzese [2006] NSWCCA 207.

99 The relevant principles were summarised in R v Van (2002) 129 A Crim R 229 at [48]. Although dealing with the question of an appeal from a conviction entered as a consequence of a plea of guilty, they are clearly of application of the decision I must make as to whether the Applicant should have the leave he seeks: Wong v DPP (2005) 155 A Crim R 37 @ [15].

100 In general terms, the court should act upon the pleas of guilty if entered in open court by the Applicant, acting with a sound mind and understanding of the matters to which he was pleading guilty, in the exercise of his free choice made in his own interests. Even if he is indeed not guilty of the offences, there is no miscarriage of justice if the Court does act upon such pleas of guilty: Meissner v The Queen (1995) 184 CLR 132 @ 141.

101 I am satisfied that the Applicant did understand and appreciate the nature of the charges to which he pleaded guilty, and that his decision to so plead was free and voluntary and made in his interests after having received advice from those who from time to time advised and represented him. There was no threat, nor inappropriate pressure applied to the Applicant. This was expressly disavowed by his counsel.

102 Notwithstanding that his counsel disavowed any suggestion of misconduct on the part of the solicitors or counsel representing the Applicant, in his evidence and representations to which I have referred above the Applicant has maintained throughout that his decision was made as a consequence of the pressure brought upon him by them. Before Puckeridge DCJ he referred in terms to some of the advice he received regarding the fact that he was working at the time he received money, and that he was therefore bound to plead guilty, in default of which he would need to find alternative representation. He referred to the criminal proceedings, and the civil proceedings relating to the recovery of assets. His evidence before Freeman DCJ referred to the seizure of assets, and the sale of property by the authorities, and attributed his present circumstances to the advice from his representatives, which included advertence to the benefits to be derived upon sentence from that course. He told his Honour of his understanding that he was entitled to receive the Commonwealth benefits the subject of the charge, that he understood the elements of the charges, and that the nature of the charges were explained to him. He finally told his Honour that the solicitors acting for him were pushing him to plead so that he could get a lesser sentence, and said that not one of them asked him for his version or explanation of the matters alleged against him.

103 I am satisfied that his pleas were unequivocal. There is no evidence before me of any inappropriate advice by those representing the Applicant. The submission made on his behalf is that he was not in a fit state to be making the decision, and should not be held to it in the circumstances. However, even though there is evidence in support of the state of mental health upon which the Applicant relies for this submission, still the question remains whether the Applicant was thereby comprised in his capacity to make his decision, such that the integrity of the pleas of guilty has been dissolved. I do not believe that the integrity of the pleas of guilty has been comprised so, and I am not of the view that a miscarriage of justice would arise from the court acting upon them.

104 Moreover, the Applicant's understanding of the matters to which he pleaded guilty is further reflected in the representations attributed to him by the psychologist and the psychiatrist.

105 Before me, the Applicant maintained that he was not guilty, but pleaded guilty only because of the advice that was given to him.

106 I do not accept the evidence and representations of the Applicant to the effect that he pleaded guilty because the pressure from his solicitors and counsel. The history of the proceedings, and the change of representation from time to time challenges any such proposition.

107 I do not accept that the Applicant's mental health made him vulnerable to or susceptible by reason of his state of mental health addressed by Ms Collins and Dr. Carne, and therefore to be assessed as if he were overborne by the conduct of those representing him, even though upon any objective assessment of the evidence before me it could not be said that there has been any such conduct by those representatives.

108 For these reasons, I refuse the application to withdraw the pleas of guilty entered by the Applicant before his Honour Judge Berman S.C. in the District Court at Sydney on the 25th July 2005.

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.

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Judgment (116 paragraphs)

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Cases Cited (2)