Consideration of the conviction appeal
108 The central issue, but not the only one, is the applicant's understanding that he was admitting his guilt to the court and intention to do so.
109 The applicant raised from early on a defence of absence of intent to murder. In March - April 1999 he was suggesting that he did not have the intent, although not in absolute terms but that (as he told Ford Gaitanis) it was premature to embark on a plea until psychiatric advice had been received and (as he told Ms Baptie) he was "trying to argue" that he did not have the intent. The psychiatric and psychological reports obtained by the applicant did not assist him in this respect. The report of Dr Milton was quite adverse.
110 The applicant seems to have become more firm in asserting that he did not have an intent to murder, see the "defence of intent" described to Mr Martin, but even in mid-October 1999 he took time to consider pleading guilty and declined to do so while waiting for Dr Westmore's report. On 21 October 1999 he resisted Mr Martin's advice that he had no defence and it was in his interests to plead guilty, but with only a sketchy and second-hand understanding of what Dr Westmore would say. In my opinion, the applicant was still hoping for psychiatric support for what he described in the earlier letter to Ford Gaitanis as his "view" that at the time he was suicidal.
111 The trial date of 25 October 1999 arrived, and an adjournment of more than a few days was unlikely. Dr Westmore's report had been received, and Mr Ramos gave comprehensive advice. Undoubtedly the applicant was in a stressful situation, as would be any accused person facing an imminent trial and called upon for a decision. But pleading guilty had been under lengthy consideration. The applicant had been hoping for a psychiatric basis for a defence in relation to intent, but that had been explored and found wanting. Universal advice to plead guilty had been given, and the applicant had been advised more than once that running a defended trial risked losing a significant reduction in sentence. He took the advice.
112 I am quite unpersuaded that the applicant's decision to plead guilty was not a genuine acknowledgement of an intent to murder, together with the other elements of the offence. The applicant was an intelligent person, who had participated extensively in the conduct of his litigation. He was not a person who had in the past been overborne by his legal representatives, quite the contrary. It is not insignificant that, in the affidavit of 23 March 2000, the applicant did not assert his innocence but rather that he was under time constraints putting everything together and "would then run the risk that there might not be any real link and I would be in an even worse position" and "it was too great a risk to run the trial because I wasn't sure what further investigation would yield". The applicant had not obtained the hoped-for psychiatric support, and was not confident that it could be obtained. He made a rational decision, not that of a man in an abject mental state, perceived to be in his best interests, opting for a lesser sentence because of a plea of guilty than the sentence he was likely to incur if there was a trial when he had not been able to obtain the hoped-for psychiatric support.
113 The facts that the applicant wanted a "control order" in order to reduce publicity and was concerned with the agreement as to facts - in substance meaning that the stalking evidence should be excluded - pointed to an understanding of what he did. In my opinion, he accepted that the efforts to find support for a "defence of intent" had failed, and he meant to acknowledge, as the written instructions of 25 October 1999 said, "the essential element of the offence, that is, intent to murder".
114 The applicant applied to withdraw the plea of guilty, but withdrew the application on advice that it was unlikely to succeed. The advice was correct advice, but the failure to persist with the application does not assist the applicant's case that the plea was entered in circumstances giving rise to a miscarriage of justice.
115 I go to the grounds of appeal in the document filed on 7 May 2004 and other matters on which the applicant appeared to rely. I repeat that the submissions, which often overlapped or were mingled, were often difficult to understand, and I have endeavoured to find their substance. It is not practicable to reproduce them at length.
116 Ground 1 was "The failure or inability of initial representatives to include relevant information to experts and obtain evidence due to funding difficulties." The applicant submitted under this ground that the advice that no defence was available and he should plead guilty was incorrect, as shown by reports of Dr Collins dated 30 September 2002, Dr Parmegiani dated 7 August 2003, and Ms Duffy dated 17 July 2003. He referred to "absence of mens rea to the specific intents of s 27 and s 33", and asserted that, although there was no defence of mental illness, "the evidence of suicidal ideation, alcoholism and depression …. allows a defence of necessity to the break and enter offences of the Crimes Act such as s 110". He said that the original reports and the advices founded on them were flawed, and apparently as reasons for the deficiencies in the reports referred to absence of legal aid for the committal hearing whereby he had been "unable to present his own material", to discrimination in restricted access to Crown documents, and to a variety of other matters.
117 There is no reasonable basis for neglect of the applicant's interests whereby the expert assistance obtained prior to his plea of guilty was flawed. Dr Collins, Dr Parmegiani and Ms Duffy were appropriately engaged and reported fully.
118 Although the applicant appears to think otherwise, I do not think the 2003 reports would have materially assisted him. They suffer from dependence on the applicant's descriptions of his mental state given much later than the events of 1998, and such assistance as might be foreshadowed depends on acceptance of a 'version of the events' (in Dr Parmegiani's words) of accidental spillage which is not consistent with Ms Mazzali's account as accepted by the applicant on 21 October 1999. Had this been a case of fresh evidence in a conviction appeal after a trial, they would not have demonstrated absence of an intent to murder such that the jury would have been caused to entertain a reasonable doubt, see Ratten v The Queen (1974) 131 CLR 131; Lawless v The Queen (1979) 142 CLR 659; R v Abou-Chabake [2004] NSWCCA 356. They do not provide a basis for a miscarriage of justice through the applicant pleading guilty upon the earlier reports, and that of Dr Westmore, not supporting his hoped-for defence.
119 Grounds 2, 3, 4, 10 and 11 involved Dr Milton's report.
120 Ground 2 was "Failure of the Crown to ensure that the case was presented with fairness to the accused". The applicant submitted under this ground that Dr Milton's report was improperly obtained, that this caused disagreement between himself and his then counsel and was the reason for their withdrawal, and that the withdrawal led to restriction on legal aid so that he could not seek an adjournment and have the opportunity to obtain a more comprehensive psychiatric report. By this reasoning, it was said that the Crown's "unethical conduct involving Dr Milton" was "a substantial causal factor in events leading to [the applicant] being unable to exercise a free choice of will during the plea of 25th Oct".
121 This is fanciful. That Dr Milton interviewed the applicant without formal consent from his legal representatives was unfortunate, but Mr Martin correctly recognised that it did not provide a basis for a stay, and it was not the reason for the change in legal representation. Nor did it lead to inability to obtain an adjournment, or to inability to exercise a free choice of will on 25 October 1999.
122 Ground 3 was "Failure to disclose evidence in relation to preparation of case before 23rd August 1999 and failure to disclose scientific evidence alongside Dr Milton's report when tendering it, failure to disclose that the report was improperly obtained". In his submissions under this ground the applicant said that part of the Crown's duty to present its case with fairness to an accused was to make "the relevant material" available at a time when a defence challenging the "admissions" within Dr Milton's report could have been prepared. He referred again to the reports of Dr Collins, Dr Parmegiani and Ms Duffy in 2002 and 2003 apparently on the basis that they would have provided reports in those terms, rather than the terms of their 1999 reports, had the Crown done so. Elsewhere in the material the applicant asserted that there was "manipulation" of "admissions" in Dr Milton's report, being statements said to have been made by medical staff rather than the applicant while he was in hospital; it was said also that the Crown had "manipulated" and had withheld medical records.
123 The applicant's legal representatives, and the applicant, knew of the circumstances in which Dr Milton's report had been obtained: there was nothing for the Crown to disclose in that respect. The plea of guilty was entered prior to any tender of Dr Milton's report. What should have been made available to the defence at some earlier time remained rather obscure in the applicant's submissions; I understand it to have been material going to the applicant's condition whilst in hospital being treated for his burns, the applicant believing that he could not have made what he regarded as admissions found within the report. The medical records were available to the applicant, who was aware of his condition and of whether he could have admitted anything in fact said by medical staff. I am not persuaded that there was any failure in the Crown's provision of material which hampered the applicant in his decision to plead guilty.
124 Ground 4 was "The advice of 13th Dec that the motion will fail is incorrect". The applicant submitted under this ground that the advice was incorrect because it did not have regard to "the circumstances of Dr Milton's report and disclosure and conduct issues and therefore is flawed as it is not a 'novus actus interveniens' but advice based upon incomplete evidence and therefore and provides for a withdrawal of plea".
125 The submission appeared to be that Mr Stewart advised on 13 December 1999 unaware of the circumstances in which Dr Milton's report had come about, perhaps also unaware of the failure of the Crown to make "the relevant material" available as contended under ground 3, and that the applicant therefore acted upon flawed advice. I do not think it was established that Mr Stewart was unaware of the circumstances in which Dr Milton's report had come about. He said to the judge he had received thorough instructions over the weekend, and the applicant was certainly aware of the circumstances. Whether or not Mr Stewart was aware, his advice that the application to withdraw the plea of guilty should be withdrawn was sound advice. Of more relevance was whether Mr Ramos' advice on 25 October 1999 was flawed because Mr Ramos was unaware of the circumstances in which Dr Milton's report had come about. As to that, the same observations may be made. I do not think that there is anything in this ground.
126 Ground 10 was "Inherent bias in Dr Milton's report". The applicant submitted under this ground that "from the defence reports that have now become available", presumably referring to the 2003 reports of Dr Parmegiani and Ms Duffy, Dr Milton's report "stood alone". He rather indirectly referred to it as a report not prepared impartially, and said that if the fresh reports supported a defence he should be permitted to withdraw his plea.
127 Dr Milton's report was adverse, but there is no reason to consider it partial. As I have indicated, the fact of the fresh reports does not provide a basis for a miscarriage of justice in the entry of the plea of guilty, nor is there a basis in a lack of impartiality in Dr Milton's report.
128 Ground 11 was "Failure to object to Dr Milton's report". In support of this ground the applicant submitted that Mr Stewart did not object to the report when tendered, or request that there be provided medical information to which it referred, referring again to a duty on the Crown to act fairly.
129 It may be that Mr Stewart could have objected to the tender of the report on 13 December 1999, although it would have been an understandable forensic decision not to do so. This was not explored in the evidence. Failure to object did not have much to do with whether the plea of guilty on 25 October 1999 was in circumstances giving rise to a miscarriage of justice. The applicant's submission was probably not meant to be confined to the tender of the report. Elsewhere in the material appeared the contention to the effect that the plea of guilty was in the light of the Crown's agreement not to tender Dr Milton's report, apparently meaning that it was conditional upon the report not being used by the Crown. More fundamentally, although not clearly put by the applicant, was the plea of guilty vitiated because the advice given to him on 25 October 1999 wrongly regarded Dr Milton"s report, or its content, as available for use against the applicant in the trial?
130 Mr Ramos' advice took into account Dr Milton's report, or its content, as part of the Crown case to be faced by the applicant in the trial - he regarded the report as "likely to be persuasive to the Court and devastating to [the applicant's] case", and told the applicant so. The plea was entered on Mr Ramos' advice founded in part on Dr Milton's report, and the withdrawal application was abandoned when the Crown was known to be relying on Dr Milton's report. In my opinion, it had come to be accepted that Dr Milton's report was available to the Crown. Why that was so is unclear, although it is an understandable forensic decision and it was not put to Mr Ramos that he had misadvised the applicant in this respect. That may not have the significance it might otherwise have when the applicant was unrepresented in the conduct of the applications, but at the time he knew of his former legal representatives' concerns, and had been told by Mr Martin that the Crown had agreed not to call Dr Milton; yet so far as appears he did not question Mr Ramos' regard to the report. It was, I think, for the applicant to make good a vitiating regard to the report in this respect, and I do not consider he has done so.
131 Grounds 5, 6 and 8 involved the conduct of Hovan & Co. They can conveniently be dealt with together.
132 Ground 5 was "Improper pressure leading into the plea". It was submitted under this ground that an application for an adjournment on 25 October 1999 was "not argued" because the grant of legal aid did not permit an application, and that Hovan & Co did not tell the applicant of that restriction. The applicant described this as fraud. Elsewhere in the material the applicant said to the effect that his plea was tainted by fraud of Hovan & Co in charging him at the same time as receiving legal aid payment and in not telling him that the grant of legal aid did not extend to vacation of the trial date, whereby he was "denied a free choice of will in entering the plea". Ground 6 was "That the advice of 13th Dec to adhere to the plea was incorrect". It was submitted under this ground that the advice did not take into account "the fraud", apparently meaning the fraud of Hovan & Co. Under ground 8, "Incompetence of representative", it was said that when the applicant sought to withdraw his plea of guilty Hovan & Co tried to cover up the fraudulent conduct, with the result that the sentencing proceedings were unprepared. This ground goes to sentencing rather than conviction. Elsewhere in the material the applicant asserted that if Hovan & Co had seen him over the weekend of 23-24 October 1999 he would have sought a judge alone trial and obtained an adjournment, and that he was therefore not able to exercise "a free choice of will".
133 On the evidence, Hovan & Co did separately charge for services covered by a grant of legal aid. That had no effect on adjournment of the trial. Whatever the grant of legal aid said, Mr Ramos did seek an adjournment of the trial. A lengthy adjournment was not to be had, but the judge indicated proceeding later in the week or when the new lawyers were prepared. There is nothing in these matters to taint the applicant's exercise of his will.
134 Ground 7 was "Failure to adhere to the circumstances of the plea". The applicant submitted under this ground that he had requested an agreement on facts, meaning that he wanted Dr Milton's report and "certain witness statements" (probably the stalking evidence) left out. He said that "[t]here are legal relations and an inducement to plead guilty which the applicant relied on", and that there was also unconscionable conduct causing him detriment when the judge relied on Dr Milton's report in sentencing. Elsewhere in the material the applicant said to the effect that the plea of guilty was subject to agreement on the facts, apparently meaning conditional upon reaching agreement. In one of his writings in the material he said that there was "a lot of material in the Crown case which was so prejudicial, emotive and nonsense, I would never have agreed to plea [sic] to that charge unless it was agreed this material would be left out".
135 I do not accept that the plea of guilty was conditional, but in any event there was agreement on the facts; the facts were to be agreed, and they were agreed. There was no inducement involving not relying on Dr Milton's report - as has been seen, the report was prominent in Mr Ramos' advice.
136 It may be mentioned at this point that, again elsewhere in the material, the applicant said to the effect that the plea of guilty was subject to obtaining a control order on the press. The applicant wanted a control order, but can not have expected that one would be granted. The plea was not conditional on obtaining one.
137 Ground 9 was "Refusal to grant adjournments on 22nd Oct and 25 Oct and 13th Dec resulted in unfair trial and sentencing. That the advice of her Honour Justice Karpin advising the applicant not to challenge the Crown brief and the matter was ready to proceed was erroneous and overpowering". In part the submissions under this ground went to miscarriage of the sentencing proceedings, but the substance of the submissions in support of it was that further time for preparation of the defence case, including the application to withdraw the plea of guilty, should have been allowed, and that the applicant had been overborne on 13 December 1999 by the judge "citing possible greater tariffs if the applicant dared assert his version of events". Elsewhere in the material the applicant said to the effect that he would not have withdrawn the application to withdraw the plea of guilty if he had been aware that he would not be given an adjournment of the sentencing hearing.
138 The applicant had no entitlement on 25 October 1999 to a further adjournment of the trial, although as I have said the judge had indicated proceeding later in the week or when the new lawyers were prepared. While the applicant was not in a comfortable position, the trial date had arrived in due manner and Mr Ramos was in a position to conduct the defence. That the applicant would have liked more time to try to obtain psychiatric support for a defence of absence of intent to murder, the most recent attempt through engagement of Dr Westmore not having borne fruit, did not make refusal of a lengthy adjournment unfair. I am not satisfied that the applicant's case was unprepared or that his defence could not properly have been conducted, or that he was not in a position or a condition to choose his path.
139 On 13 December 1999 the applicant instructed that a four week adjournment be sought, or to a time when a member of his family could attend. Given the history of the proceedings, however, he can not have thought that an application would be favourably received. In my opinion, the withdrawal of the application to withdraw the plea of guilty was an acceptance that the plea should stand and confirmation of the acknowledgment of the intent to murder. The judge's observations on 13 December 1999 were after the application to withdraw the plea of guilty had been withdrawn. They were a realistic reminder to Mr Stewart in the interests of the applicant, not a threat tainting the maintenance of the plea.
140 Grounds 12 and 13 were directed to the sentencing proceedings, but it may be that the applicant intended ground 13 to go in part to conviction. Ground 13 was "That Her Honour failed to hear sworn evidence from experts when determining penalty". The submissions under the ground, read benevolently, could have included that the plea of guilty accepted only the essential elements of the offence; that any further findings by the judge required sworn evidence; and that if there had been sworn evidence the judge would have accepted Ms Duffy's opinions. Elsewhere in the material the applicant asserted that in pleading guilty he agreed to the legal ingredients of the offence only, with the facts on which he was to be sentenced to be agreed, perhaps intending to say that his plea did not extend to intent to murder which was something to be found, if it was to be found, in the further facts to be agreed.
141 If this was what the applicant intended, there is no substance in it. The applicant plainly knew that facts were to be agreed, going beyond the bare legal ingredients of the offence, and equally plainly the intent to murder at the centre of the defence he would like to have brought was one of the essential ingredients. This was noted in the signed instructions of 25 October 1999. The facts were agreed, Ms Duffy's report was before the judge, and there was no occasion for sworn evidence.
142 Ground 14 was not formulated in terms, but the submissions under that heading were to the effect that, pursuant to s 7 of the Criminal Appeal Act, there should be substituted for the offence of causing grievous bodily harm with intent to murder a "verdict of a lesser charge". Section 7 of the Criminal Appeal Act does not apply in the present circumstances.
143 Ground 15 was "That in sum total, the collective appeal points raised, whether individually they have failed or not should be considered as one appeal point and amount to a miscarriage of justice in and of themselves".
144 The ultimate question is whether there was a miscarriage of justice in the circumstances in which the applicant came to enter the plea of guilty. It is necessary to take account of all the circumstances, beyond the central issue of the applicant's understanding that he was admitting his guilt to the court and intention to do so. Considering in their entirety the applicant's submissions and the material before the Court, I am not persuaded that there was.
Sentence - introduction
145 In Grierson v The King (1938) 60 CLR 431 the appellant had been convicted, his appeal against conviction had been dismissed, and he sought to reopen his appeal on the ground that facts had become known concerning a material witness for the Crown which might affect the conviction. It was held that, the Court having heard the appeal on its merits and given its decision, the appeal could not be reopened.
146 In R v Reardon (No 2) (2004) 60 NSWLR 454 this Court considered whether the principle stated in Grierson v The King was qualified. After extensive consideration of the authorities Hodgson JA, with whom Simpson and Barr JJ relevantly agreed, said -
"40. The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones [ Jones v The Queen (1989) 166 CLR 409] suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno [ Pantorno v The Queen (1989) 166 CLR 466] and Postiglione [ Postiglione v The Queen (1997) 189 CLR 295) suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal, Lapa [ R v Lapa (No 2 ) (1995) 80 A Crim R 398) suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in Saxon [ R v Saxon (1998) 101 A Crim R 71) and Gust [ R v Gust [2000) NSWCCA 287) but again it could be said that the view is expressed obiter.
41. In my opinion, what was said in Jones, Pantorno and Postiglione is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon ; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the Court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson . To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust ."
147 By perfection of the order his Honour meant the noting of the records of the court of trial in accordance with r 53 of the Criminal Appeal Rules, see at [20]-[22]. Rule 51A states that an appeal or an application for leave to appeal "is determined on the making of orders disposing of the appeal or application". Rule 51 provides for notice of the determination to be sent to various persons. Rule 52 provides for notice to "the proper officer of the Court of Trial", and by r 53(1) "[s]uch proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial".
148 The applicant's sentence appeal was decided on 12 December 2001. Orders were made granting leave to appeal and dismissing the appeal. The Crown said in its submissions that the orders had been perfected. The applicant did not take issue with this; on the contrary, in an affidavit sworn in relation to costs assessment in which he complained of his legal representatives' conduct of the sentence appeal, he said that "[t]he present is a case in which the orders have been perfected, but it is submitted that a denial of natural justice has occurred because … ". The material put before the Court included a form of notice of the outcome of the sentence appeal, addressed to "CCA File No: 60022/00" and "DC File No: 98/21/2124". There was no specific evidence of the entry of the orders on the records of the District Court, but a ready inference is that a copy of the notice was placed in the records of the District Court in the identified file.
149 The applicant referred to Jones v The Queen (1989) 166 CLR 409 and the other cases to which Hodgson JA referred in R v Reardon (No 2) at [40], submitting that there is jurisdiction to reopen an appeal where there had been a denial of procedural fairness and that there had been such a denial in relation to the appeal determined on 12 December 2001. At best, the appeal could be reopened if there had been failure to determine a ground of appeal which had been argued.
150 As will appear, the denial of procedural fairness for which the applicant contended did not involve failure to determine a ground of appeal as referred to by Hodgson JA. At one point in written submissions on reopening the sentence appeal, the applicant asserted that grounds of appeal had not been determined. This, however, took up his complaint that grounds he had instructed should be raised had not been raised; there was no failure to determine a ground of appeal which had been argued. In my opinion, R v Reardon (No 2) precludes acceptance that the appeal can be reopened.
151 As was done in R v Reardon (No 2), I nonetheless explain why no ground for reopening has been made out. It is again necessary to go in a little detail to the conduct of the sentence appeal.