These are unusually detailed instructions and easy to understand. There is an explicit acknowledgment by Mr Sewell that he had no entitlement to any of the moneys the subject of the 7 counts in the indictment and the subject of the 10 counts in Form 1.
16 In his oral evidence before Judge Gibson Mr Sewell was not as restrained as the terms of his affidavit. He said that his counsel showed him a document, told him he had no hope of winning with the Group Accountant and the Bosnjacks (the proprietors of Westbus Pty Ltd) against him and that he would have to change his plea to guilty. A little later counsel added "Well, we'll change the plea". Mr Sewell thought that the reduction in the number of charges sounded a lot better. He said that he honestly believed that he could still put the case of what had actually happened before the court.
17 Mr Sewell stated that at the time his case was before the Court in May 2000 he was getting a lot of headaches and was taking Codeine and Panadeine. He said that after he signed a document counsel told him he would finish back in gaol again.
18 In his evidence in chief it emerged that Mr Sewell had written in a document supplied to the Probation and Parole Service that the arrangement always was that he was to be paid a commission of 5 per cent on turnover. He wrote that he could not explain the discrepancy which emerged from a document dated 22 July 1991. That document was headed "Consulting Package Submission - Prospect Promotion". It referred to "A Consultancy Fee of 5 per cent on Gross Profit" payable on any of four specified items or contracts for four specified areas of work. The document contained a formula for calculating the gross profit. The arrangement did not apply if the gross profit was less than 25 per cent of the amount invoiced. Prospect was to submit an invoice each two weeks. The arrangements were to endure for two years from 1 July 1991.
19 Mr Sewell claimed that when he was shown the document of 22 July 1991 by his barrister at court he could not remember until about a week later why he wrote the document. Mr Sewell insisted that it was unrelated to the original deal. Mr Sewell stated that he would probably have made a different decision if he had been thinking clearly around 9 and 10 May 2000. He insisted that he had made a mistake in pleading guilty believing that he could present the circumstances as to what had happened.
20 Mr Sewell told the judge that he was the contract development manager at Westbus Pty Ltd and was with that company for three years. He set up a new division in the company. He agreed that he was a fairly intelligent person with that kind of work. In answer to the judge Mr Sewell said that he did not even ask his counsel if he could run his defence and that he did not recall hearing or seeing that the Court of Criminal Appeal had held that he was entitled and able to run his defence of a claim of right.
21 Mr Sewell stated that he had made Westbus $11-million. He received about $18,000 to $20,000 from Westbus. He was badly done by and should have been getting 5 per cent of it in accordance with the original agreement. The implication was that he took the steps now under challenge to recover the money owed to him and had to do so to obtain such money.
22 In cross-examination Mr Sewell said that he did not really read the document of 10 May 1991 (the written instructions). He conceded, however, that it was read to him and that he was spoken to about it and that he signed it to confirm his instructions to counsel. A little later, after counsel for Mr Sewell before Judge Gibson said he could not read the writing, Mr Sewell volunteered that he could not read it at the time (10 May 2000). Mr Sewell said that since 10 May 2000 he had realised that the document of 22 July 1991 in his handwriting had nothing to do with the agreement that Westbus made with him in May 1991.
23 Mr Sewell said that when he sued Westbus in 1993 for moneys which he claimed it owed to him he did not disclose that he had taken close to a quarter of a million dollars.
24 The judge placed some emphasis on the document of 10 May 2000. He noted that Mr Sewell gave instructions to his current barrister not to cross-examine counsel who had appeared for Mr Sewell in May 2000. The judge found that, despite Mr Sewell's problems and those of his wife, he came across as somebody who was astute and smart. That is also apparent on reading the transcript.
25 The judge stated:
"I do not believe that he did not understand that he was abandoning his claim of right. I am satisfied, as I have to be in this case, on the balance of probabilities that he did so understand. He had been sent to gaol and been let out of gaol on the basis that he could run a defence that he claimed he had. As he said himself, the material had been put before the court on the first occasion in the plea, and the Court of Criminal Appeal said no, it was a claim of right that had to be put before the jury. To say that he was not aware of that, in my view, is just unacceptable.
If it had not been for that fact, I might have taken a different view, but in relation to the evidence, I am satisfied on the balance of probabilities that at the time he knew that he was admitting his guilt, he was prepared and did admit his guilt, realising that he was abandoning his claim of right. Because of that, the authorities, when they talk about miscarriages of justice, do not speak in vacuo, they speak in relation to a number of different ways in which this miscarriage of justice can occur, and one of them is if there is not a genuine consciousness of guilt or an acceptance of guilt.
In my view, there has been such a conscious acceptance of guilt in this case, and in the totality of the evidence I would on that alone refuse the application"