The Queen v Pain [2016] VSC 532

2 His trial was scheduled to commence before a judge of this court on 23 November 2015. When the applicant was arraigned on 24 November 2015, he pleaded guilty to that charge of murder.

3 The proceeding was duly adjourned for plea and sentence but before his plea could be heard, the applicant stated his desire to change his plea. The applicant's grounds for seeking to change his plea were:

(a) The guilty plea was entered under duress, occasioned both by remarks made by the Judge on the first day of the trial as to the likely difference in sentence between a plea and verdict of guilty and also remarks made by his then counsel who he thought 'agreed' with the Judge;

(b) The plea was entered without the applicant having a proper understanding of the options he had; and

(c) The plea was not a true admission of guilt attributable to a genuine consciousness of guilt.

4 For the reasons that follow, I will grant the applicant leave to withdraw his plea of guilty to the murder charge and direct that the proceeding be listed for further directions for a trial.

5 This application originally commenced before T Forrest J who, for reasons that are not relevant, did not determine it. The parties agreed that I should consider the transcript of the evidence given before T Forrest J by Mr Cahill and Ms Todd as part of the evidence on the application. Each of the applicant and his counsel, Mr M P Cahill SC and Ms F Todd, swore an affidavit and each was cross-examined. In addition, the applicant filed and served a neuropsychological report dated 3 March 2016 prepared by Martin Jackson, who was cross-examined on his report.

6 In making the findings of fact that I will shortly express I have preferred, where necessary, the evidence of Mr Cahill, which is generally supported by the evidence of Ms Todd, over that of the applicant. I have also accepted the evidence of Mr Jackson. Mr Jackson's evidence provides some explanation for the quality of the applicant's recollection and description of events and for my preference for the evidence of Mr Cahill. Having carefully listened to both Mr Cahill and the applicant when cross-examined, I am satisfied that Mr Cahill has a clear, detailed and reliable recollection of the events surrounding the applicant's change of plea. In one critical respect, Ms Todd conceded that she did not have a clear recollection that could support Mr Cahill's evidence, but I am satisfied that events transpired as described by Mr Cahill.

7 When first instructed, Mr Cahill understood that the applicant had given firm instructions that he would plead not guilty to murder. An offer had previously been put by the applicant's solicitors to the Director that he would plead guilty to manslaughter, which offer the Director rejected. At their initial conference, the applicant confirmed to Mr Cahill that he had received advice about the strength of the murder case against him and that his firm instructions were that he would plead not guilty to murder. During the course of the conference that explored the applicant's instructions on particular aspects of the prosecution case against him, Mr Cahill and Ms Todd, on 6 October 2015, advised the applicant that he was entitled to a reduction of his sentence if he pleaded guilty. The applicant confirmed his intention to plead not guilty on the basis of admitting that he fired the lethal shot, but without murderous intent.

8 Mr Cahill and Ms Todd conferred with the applicant on 28 October 2015 and on 2, 17 and 19 November 2015 in the course of preparation for a contested trial.

9 On two further occasions over the course of these conferences, Mr Cahill and Ms Todd reminded the applicant of the risk of a higher sentence being imposed if the jury found him guilty of murder after a trial. The applicant reiterated that he was prepared to plead guilty to manslaughter but not to murder and instructed his counsel to put the offer to the prosecution again. It was again rejected.

10 Counsel informed the applicant that, before a jury was empanelled, they would seek a ruling from the judge to exclude certain parts of the prosecution evidence. The applicant understood that his trial would commence with this argument but neither the applicant nor his counsel considered that the ruling would affect the applicant's plea.

We never really discussed the prospects of a successful defence. It was a given that he was going to run his trial and we were going to present the best defence we could for him and we were always prepared to run his trial.

12 On 23 November 2015, Mr Louis Dean was also present to instruct counsel and assist the applicant with empanelment. When the Court opened, the Judge called for a copy of the depositions, which were yet to be provided to him. The Judge stated that he would commence hearing the pre-trial argument but would need to see the depositions before finalising any ruling. The following exchange then occurred:

His Honour: Yes, but I think there might be a number of things we can get the gist of without me specifically needing to look at those.

Mr Cahill: Certainly, yes.

His Honour: There's one matter I should indicate to you, Mr Cahill, and I suppose it's just part of my duty. I assume that your client understands what the difference in sentence might be if he happened to plead guilty? It's not a matter for me, it's a matter for the jury at the end of the day, but he needs to understand that it's a difference in years.

Mr Cahill: Yes, we hear what your Honour has to say, which leads me to the other enquiry I was going to make of your Honour as to whether or not your Honour proposed to empanel today. I was going to ask your Honour after the argument to allow us some time to speak with Mr Pain. There were some matters that we did want to raise with him, amongst other things.

His Honour: I had planned to empanel today but only on the basis that I was proceeding on about an hour's legal argument and I thought we wouldn't waste the rest of the day, but if you think that can be usefully used, I'm quite happy to give it to you ...

13 At approximately 11.30 am, the Judge adjourned temporarily to review the depositions and consider his ruling. The applicant was taken back to the cells and Mr Cahill, Ms Todd and Mr Dean then conferred with him. Because of his prior advice and the applicant's firmly expressed instructions, Mr Cahill had not intended to discuss with the applicant the Judge's remarks about the possibility of a sentencing discount. Mr Cahill intended to further discuss with the applicant specific aspects of his defence. He clarified in evidence that his observation to the Judge about desiring further time with his client, set out above, referred to taking further instructions for the conduct of the trial.

14 Mr Pain immediately raised the Judge's comment, remarking that he felt the Judge was clearly of the view a jury would find him guilty of murder. The applicant said he felt he had to plead guilty. Mr Cahill told the applicant that he had the same impression, namely that the Judge was clearly of the view a jury would find him guilty of murder, but reminded him that his plea was his decision. Mr Cahill told the applicant that the Judge was a very experienced criminal lawyer, who had formerly served as a Director of Public Prosecutions and reminded the applicant that, as the Judge had said, a jury, not the Judge, would decide his fate. Mr Cahill told the applicant that it was his decision whether or not he ran his trial and that his counsel were well prepared to run the trial if he wanted to proceed. Mr Cahill also told the applicant that he would not accept his instructions to plead guilty if he maintained that he, at the least, did not intend to cause the deceased a really serious injury, reminding him that a plea to murder meant he was admitting he did have that intention.

15 For reasons that will become clear when I deal with the evidence of Mr Jackson, I will set out, in his own words, how the applicant perceived what I am satisfied was said to him by the judge and his counsel. First, his reaction to the Judge's observation was:

The next thing I remember what he was saying was if you virtually plead up guilty, you will save years. So in other words what he was saying, you are better off to plead guilty and you will save years.

Well I thought to myself um I had no choice, that the Judge was against me. He was going to plead, you know - he was going to make me guilty no matter what.

I didn't feel too well and I just kind of lost faith and I thought to myself um that I'm going to go down even though I haven't even had a trial.

Well, I thought um I didn't have a chance so there was no um - I was found guilty by him so there was no point in going through it and I just lost faith of everything.

16 The applicant described his reaction when speaking with his counsel back in the cells:

Ah, because I've always said to them that I was going to plead up to manslaughter. Um, and just the way the Judge actually put it to me ... I was feeling um, under a lot of pressure.... Um, that I had to plead - I had to plead guilty to murder. Just the way the Judge actually put it to me.

I said the way the Judge actually put it to me, I felt like I didn't have a chance. So um I had to plead up to murder and it seemed like he [Mr Cahill] agreed but it was my confusion that the way everything was travelling.

I thought he meant, um, like, he, he was agreeing with the Judge... about pleading up to murder. Ah, yes, he said he was a pretty fair judge.

17 After the Judge delivered the ruling, counsel conferred with the applicant for a second time in the cells. Mr Cahill was explaining to the applicant the consequences of the ruling for his trial when the applicant stated that he would plead guilty to the charge of murder. Mr Cahill told the applicant that it was a very important decision and refused to take the applicant's instructions until he had an opportunity to think about it overnight. He told the applicant that he would ask the Judge for time for him to consider his position overnight and that if he still wished to plead guilty the next day he could. If he did not, a jury would be empanelled and they were ready to conduct his defence when the trial commenced.

18 At Mr Cahill's request, the Judge adjourned the trial until the next morning.

19 On 24 November 2015, before court commenced, Mr Cahill and Ms Todd conferred with the applicant in the Supreme Court cells. Mr Cahill asked the applicant what he wished to do and the applicant responded that he would 'put his hand up'. Mr Cahill stated to the applicant that he had to understand that putting his hand up meant that he acknowledged that when he fired the shot he intended to cause the deceased at least a really serious injury. The applicant said that he understood that.

20 For his part, the applicant said that when his counsel came to see him before court on the 24th, they asked him whether he intended to plead guilty or not and he stated:

Um, I turned around and I said to 'em "I'll plead up to murder, but I didn't want to". Best of my memory.

He said that he made this statement because he felt like he was pressured into it by the Judge.

21 The applicant's evidence before me was ambiguous as to whether he expressed his reticence to his counsel at the time or was expressing in court reticence that he felt at the time but did not necessarily articulate. However, in his affidavit, the applicant clearly stated that he expressed his reticence at the time. For her part, Ms Todd did not have a clear recollection as to whether the applicant had stated that although he would plead guilty he did not want to on both the 23rd and the 24th November 2015 and could not dispute that he might have said it on 24th November 2015.

22 However, Mr Cahill was clear that the applicant did not qualify his instruction to plead guilty on the 24th and added that he would not have acted on instructions from the applicant that were accompanied by a statement that he did not want to plead guilty. Mr Cahill stated that on the morning of the 24th, prior to conferring with the applicant, he fully expected that he would have changed his mind and instructed them that he wanted to run his trial. Mr Cahill perceived the applicant as having always indicated a reluctance about pleading guilty. He accepted the statement made on 23 November 2015 - 'I'll plead guilty to murder but I don't want to' - as a summary of the applicant's attitude.

23 Mr Cahill accepted that the Judge's comments had an obvious, big impact on the applicant. There was never any suggestion that his plea instructions would change until after he heard the Judge's observation. In the final conference on the 23rd, the applicant asked about his chances of a verdict of manslaughter instead of murder. Mr Cahill recalled that to be the first occasion the applicant had asked that question, his prospects of the success of his defence never having been debated with him on any prior occasion. Mr Cahill stated that he was reluctant to answer the question because he expected that having thought about it overnight, the applicant would have instructed him to proceed with the trial the following morning based on the history of the applicant's instructions. Mr Cahill hesitated in answering the applicant's question. Ms Todd did so, stating effectively that his prospects of success were very modest.

24 Mr Cahill stated that he did not think the applicant ever wanted to plead guilty to murder but he was satisfied that having reflected for himself on the question overnight, he had freely and voluntarily arrived at a decision to plead guilty. When the applicant gave those instructions on the morning of 24 November, he did not state that he did not want to enter that plea. Rather, Mr Cahill explained to him the consequences of the plea, in particular that it would amount to an admission of his intention. Mr Cahill said the applicant told him that he understood. Mr Cahill then asked the applicant to reflect on it again while a written note of his instructions was drawn up.

25 Ms Todd then drafted a handwritten note to record the applicant's instructions and she read it to him as he did not have his reading glasses with him. He then signed that note, which read:

Instructions 24 November 2015

I, Maxwell Pain, will plead guilty to the charge of murder, knowing by the plea I acknowledge, when I fired the shot, I intended to cause David Paris a really serious injury.

I have been advised by my barristers Michael Cahill and Fiona Todd that I have the right to have a trial in this case. I understand the effect of my plea and make this decision on my own free will.

I have had this read to me by my barrister Fiona Todd.

[Signed Maxwell Pain]

26 When the Court was convened, the Judge was informed of the applicant's instructions and the applicant was arraigned and pleaded guilty to the charge of murder.

27 I accept that the applicant was emotionally distressed at the time that he entered that plea. Mr Cahill confirmed as much. The applicant stated that he felt under duress when entering his plea of guilty, in that he felt that the Judge had decided his outcome, his lawyers had let him down, and that he should not have been pleading guilty but had no choice.

28 The applicant conferred with his counsel following the adjournment of the proceeding for later plea when he gave instructions about the shooting that differed from his earlier instructions that the gun had gone off as a result of a struggle with the deceased. He disputed prosecution evidence that he was only a metre or so from the deceased at the time the gun was fired, stating that it was more like 30 to 40 feet and maybe more as he was still in his car. The applicant also stated that he told his counsel that when he fired the shot he was aiming for the deceased's belly and that this statement was untrue because he was aiming at his legs. The applicant believed he made this untrue statement to somehow explain his decision to plead guilty to murder. The applicant maintained, by his affidavit, that he killed the deceased accidentally and without intending to kill him. For the purposes of the present application, I take the applicant's statement to refer to the absence of a murderous intent, properly understood.

29 Following the adjournment of the proceeding, the applicant, who was in custody, gave his position a great deal of thought and concluded that he had done the wrong thing in pleading guilty to murder.

30 What was not known, and could not have been detected or anticipated, by either the Judge or the applicant's counsel on 23 and 24 November 2015 was that the applicant was impaired by severe dyslexia. This diagnosis was made by an experienced clinical neuropsychologist, Martin Jackson, to whose evidence I now turn.

31 Mr Jackson administered a number of tests as part of his neuropsychological examination of the applicant. He concluded, and I accept, that the applicant's cognitive profile was consistent with a person with severe dyslexia with associated (lesser) impairments in the areas of working, memory, verbal intellectual skills, verbal processing speed and some aspects of verbal executive functions. All his other cognitive skills were intact, including his new learning and memory skills. His cognitive profile was of long standing and certainly would have been present both at the time of the shooting and, relevantly, on 23 and 24 November 2015. Mr Jackson also concluded that the applicant was experiencing a significant degree of stress/anxiety/distress, which would have exacerbated his cognitive difficulties when struggling (as he put it) with the dilemma of whether to plead guilty.

32 Mr Jackson opined that the applicant's thinking is quite concrete and his ability to think of verbal solutions from a conceptual thinking perspective was quite poor. The applicant is very slow to process verbal information, he has a limited capacity to hold verbal information and he has difficulty in thinking about two things at once. Mr Jackson considered that when faced with a need to choose between concepts to make a decision, the applicant would need an explanation in very concrete and basic terms of the specific differences between the concepts for him to have any chance of making a properly informed decision. If he was advised in a very abstract, open ended way, he would not understand the difference between the concepts. The applicant did not have the ability to readily reason through the pros and cons of a decision.

33 Mr Jackson described the effect of the applicant's severe dyslexia on the decision to change his plea in the following terms.

I'm of the opinion that his - his long-standing verbal learning disorder was - had an impact on this change of decision. Um, he heard the judge say to him that, um - basically the interpretation I got was that, you know, "If you went to trial you could get lots and lots of years and if you didn't, if you pleaded guilty, you'd get less years. And it's going to be the same as what you get if you plead manslaughter". And so he said, "Oh, I'll just take it". Um, what happens in cases like Mr Pain is that, because they are concrete and inflexible and can't process all that information, he's focusing on that one piece of information that he's heard the judge say and he makes a decision on that one piece of information. And he's in a - he isn't at that stage incorporating all the other pieces of information that are relevant to making this decision.

34 Mr Jackson considered that the Judge's observation was the fact on which the applicant focussed when considering changing his plea. His impaired conceptual thinking and decision making would have deteriorated further because of significant stress resulting in the applicant being prone to only being able to consider his situation in one particular way oblivious to other possible alternatives until removed from the stressful situation. Commonly, an 'Oh, I shouldn't have done that' response later follows. Mr Jackson considered that it was highly likely that the applicant's decision making was impaired in this way when he gave instructions to change his plea.

35 The delay in acting on the applicant's decision by deferring overnight to give him time to reflect on it would not contribute, in Mr Jackson's view, to an informed decision. The applicant would have remained focussed on the Judge's observation, mulling it over, and not processing other relevant information that he ought to have considered in making his decision. Being stuck on the one matter, the applicant would present as clearly recalling that matter and focussed on it, but actually he would have been overwhelmed and with poor recall of other matters relevant to his decision.

36 The impact of his concrete thinking can then be subsequently seen. The applicant returned to his original thinking which was, 'Well, I didn't mean to kill him so by pleading guilty to murder, I'm saying I did it and I don't want that on the record.' At the time he changed his plea he was focused on what the Judge has said. Later, when removed from a stressful situation, he processed other possibilities and decided that he did not want to go with his previous decision.

37 Mr Jackson also said that most observers would be unable to detect his cognitive difficulties. First, the applicant was unaware of his cognitive difficulties and would present to those who dealt with him as appearing to comprehend what he was being told and provide reasonable answers in response. Secondly, persons with severe dyslexia can verbalise apparently reasonable responses but there will be a disconnection between the information provided and the person's consequent actions. In Mr Jackson's view, neither the Judge nor counsel would have appreciated that the applicant was labouring under the disability of severe dyslexia at the relevant time. However, I note that when the matter returned before the Judge and the application to change plea was foreshadowed, he inquired whether any psychiatric or psychological report had been obtained.

38 Ultimately, to assist the applicant with the decision to plead guilty, his advisers needed to specifically inform him of all the relevant considerations, to talk him through all the possible outcomes. That did not occur. The signed acknowledgement of his instructions was consistent with his concrete thinking - 'if you're going to plead guilty, you have to say that you did it'. It demonstrated that he understood his barristers when they said that they would not let him plead guilty unless he confirmed that he intended to seriously injure the victim. It did not demonstrate that his decision was informed by all relevant considerations.

39 Once an accused person has pleaded guilty on arraignment, leave of a judge is required for a change of plea to not guilty. A plea of guilty in open court constitutes an admission of all of the legal elements of an offence and is the most cogent admission of guilt that can be made. The law attaches such importance to a guilty plea that no further proof is required of an accused person's guilt.[1] Its significance, in part, rests upon the public interest in the finality of legal proceedings.

40 The court has a discretion whether to permit a change of plea and that discretion must be exercised judicially in the circumstances.[2] The test to be applied is whether a miscarriage of justice would arise if the applicant was not permitted to withdraw his plea of guilty and enter a plea of not guilty.[3] The applicant seeking such leave bears the onus of establishing sufficient circumstances that would justify the exercise of the discretion in his or her favour.[4] Courts have found it undesirable to lay down a definitive test of the circumstances in which a miscarriage of justice may arise. The exercise of the discretion is not fettered by any preconceptions or limitations arising from the approach taken in previous decisions and must be considered on the facts of the case.[5]

41 In R v Middap, the court stated the test as follows:[6]

The only test which is to be applied is whether a miscarriage of justice, in the view of the Judge, would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits, and there is no question but that the judge has a discretion, to exercise in relation to the matter, which must be exercised judicially and having regard to the test to which I have referred.

42 An inquiry into whether a miscarriage of justice will follow on a refusal of leave to change a guilty plea is commonly directed to whether the guilty plea was not really attributable to a genuine consciousness of guilt. The inquiry may be more broadly described as whether the circumstances affect the integrity of the guilty plea. There has been some recent debate at appellate level about whether it is necessary for a judge considering an application for leave to change a plea to determine whether the applicant believed himself to be guilty of the offence to which he pleaded. Such an inquiry may require a judge to consider whether the applicant is 'truly guilty' and whether he 'believed' himself to be guilty. That debate is set out in the reasons of the Court of Appeal in Weston v The Queen.[7] In Weston, Whelan and Kaye JJA concluded, obiter, that those propositions, on analysis, might be found to be an unwarranted addition to, or qualification on, the applicable test which is 'simply whether a miscarriage of justice would occur if the guilty plea was not permitted to be withdrawn'.

43 The particular circumstances of the case under consideration may warrant inquiry into whether the applicant's plea of guilty was not attributable to a genuine consciousness of guilt, because that might be a circumstance affecting the integrity of the plea such that it would be a miscarriage of justice to hold the applicant to his plea. The plea of guilty may not have been a free and voluntary confession of guilt. Many circumstances have been considered in individual cases including that the applicant may not have appreciated the nature of his guilty plea, or may not have intended to admit that he was guilty, or may have been induced to plead guilty by fraud or threats or other impropriety, or where there was no evidence on which the applicant could have been convicted.

44 Broadly speaking, the inquiry is into whether the plea was entered by mistake, or whether the accused could not be lawfully convicted, or the integrity of the plea of guilty is otherwise questionable, or where refusal of leave would otherwise lead to a miscarriage of justice, rather than the accused's belief about the strength of the prosecution case against him. As Hoeben CJ at CL observed in Khamis v R:[8]

[A]ny miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. Ordinarily, this task is not an investigation of the applicant's guilt or innocence, rather it is an examination of the integrity of the plea of guilty itself.

45 It has been said that the applicant's onus is a heavy one, which can only be discharged in rare and exceptional cases.[9] There is authority that such circumstances must be 'extreme, not just extraordinary'.[10] In other cases courts have suggested 'caution bordering on circumspection' is required.[11] The variation in expression of this standard may be reconcilable by reference to the differing circumstances in which judges have made such pronouncements. What should be borne in mind is that, as already noted, by a guilty plea an accused admits of all of the legal ingredients of the offence, which is the most cogent admission of guilt that can be made and the public interest in finality in court proceedings is significant. I do not see that the applicable test is aided by encrusting the standard of the applicant's onus to establish circumstances with any greater epithet than 'exceptional' or 'extraordinary'. There is a competing public interest of great significance in ensuring that the criminal justice system is free of any miscarriage of justice to which the public interest in finality must give way. The question remains whether the applicant has established circumstances that justify the discretion being exercised in his favour.

46 Although there may be circumstances in which erroneous legal advice given to an accused, being a form of misrepresentation, may affect the integrity of a guilty plea, proper legal advice will rarely, if ever, cause a miscarriage of justice. That said, in some circumstances concerns about the effectiveness of the communication of legal advice to the applicant or whether it was properly comprehended by the applicant may affect the integrity of the guilty plea. In a number of cases, there has not been evidence that the applicant contended that he was not guilty, rather the evidence was that the applicant hoped for some 'technical advantage'. One, but by no means the only, technical advantage of a guilty plea is the sentencing discount on a plea of guilty under s 6AAA of the Sentencing Act 1991 (Vic).

47 In Kumar v R,[12] on an application for review of the refusal of a judge to certify for an interlocutory appeal in respect of a refusal for leave to change a guilty plea,[13] the Court of Appeal concluded that advice from the accused's legal practitioners that the accused will receive a substantial sentencing discount for pleading guilty does not, of itself, infect the integrity of the plea, noting that, as Dawson J essayed in Meissner v The Queen,[14] there may be all manner of reasons beyond a personal belief in guilt as to why an accused person might plead guilty.[15] The primary judge's specific finding that the evidence of the applicant's legal advisers as to how he came to plead guilty was compelling was expressly noted by the court.

48 However, statements by the trial judge about the prospect of a sentencing discount may raise different considerations. Although the trial judge did not explicitly comment on the strength of the prosecution case and did state that guilt was a matter for the jury, I am satisfied that the applicant perceived the Judge to be commenting that the prosecution had a strong case. Further, his counsel agreed that the Judge's comments could be taken to convey that he considered the prosecution's case to be strong. It does not follow that there will be a miscarriage of justice when an accused pleads guilty following comment by the trial judge about the strength of the Crown case. The question remains one of whether a miscarriage of justice would occur if leave was refused to resile from the guilty plea.

49 As with legal representatives, judges need to be cautious not to undermine an accused's free and voluntary decision about his or her plea. In the context of the sentencing discount, as in other contexts, a judge ought to exercise caution not to undermine the validity of a plea by exerting inappropriate pressure or offering an inducement for an accused person to plead guilty.

50 In Guariglia v The Queen,[16] a question arose whether pleas of guilty resulted from improper pressure placed upon the accused by the trial judge who had commented on the strength of the prosecution case and stated that a substantial discount in sentence would be given if the applicant pleaded guilty. The judge made the relevant comments following the discharge of the jury before verdict. It is unnecessary to set out the comments made in that case, it being sufficient to note that they were significantly different from the comments made in the present case. Nettle JA (as he then was) characterised the primary judge's comments as intended to influence the accused to change his plea that amounted to judicial persuasion of a kind likely to carry weight with an accused and be difficult for him or her to resist.[17]

51 Nettle JA noted the decision in R v Pinhassovitch[18] that it was not a sufficient basis, to set aside a conviction following a plea of guilty, that defence counsel may have told the accused that the trial judge had expressed the opinion during pre-trial mentions that the case against the accused was very strong and suggested the likelihood of a considerable sentence discount if the accused pleaded guilty so as to avoid the need for a long trial.

52 Nettle JA also referred to R v Holden[19] in which Neave JA[20] held that it was not a sufficient basis to set aside a conviction following a plea of guilty that, before the plea was entered, the trial judge encouraged the Crown and the accused to have 'meaningful discussions' and said that 'it seems to me that both sides would be best served if this resolved'. His Honour concluded that despite the presumed effects of judicial influence, there may be cases where the facts show that an otherwise objectionable judicial intimation does not have a material effect. An example of such a circumstance would be where an accused had decided to plead guilty prior to hearing the objectionable judicial intimation.[21]

53 The Crown invited me to distinguish Guariglia from the present case because of the marked distinction between the comments made by the Judge in this case and the trial judge in Guariglia.[22] I accept that such a distinction is obvious, but Nettle JA's reasoning is instructive for the present application because his Honour also stated:[23]

Of course, a plea of guilty may attract a more lenient sentence, and defence counsel may properly advise an accused of that probability. But, as has been explained, there must be no suggestion of 'an inducement offered or approved by the court prior to the plea'. A trial judge should not decide, and should be seen not to have decided, whether any or what discount is to be allowed for a plea of guilty until after the plea has been entered. To intimate in advance of a plea of guilty that such a plea would lead to a discount on sentence is an inappropriate engagement in judicial plea bargaining which has the potential to dissuade an accused from exercising his or her rights, and thereby to result in a miscarriage of justice.

54 Nettle JA concluded that inappropriate plea-bargaining had occurred in that case. He added that it was not necessary for the applicant to establish that the judge's promise of a substantial discount was the only cause of his decision to change his plea. It was sufficient if it made a material contribution to his decision.[24]

55 Each party made submissions that touched upon the question of the accused's guilt on the murder charge. The Crown submitted that the prosecution case was very strong. Indeed, a probing exchange to this effect took place between the Judge and the applicant's counsel before the Judge disqualified himself from resolving the application. The accused submitted that although the forensic scientific evidence might be conceded to be highly probative on the central issue of murderous intention, that evidence remains untested and the question of whether the applicant possessed the requisite murderous intent is a jury question to be determined on all of the evidence.

56 I do not propose to enter into this debate. I am concerned to examine the integrity of the plea of guilty itself for it is in the circumstances in which that plea came to be entered that any miscarriage of justice might be established. The ultimate result or prospective jury verdict is not a relevant consideration.

57 This is not a case where it can be said that the applicant did not appreciate the nature of a guilty plea or that his plea was induced by fraud, threats or other impropriety. Certainly, it is not a case where there is no evidence upon which the applicant could have been convicted. In my view, the applicant's plea of guilty cannot be attributed to a genuine conscientious of guilt on his part because of his unrecognised intellectual disability. That disability is a circumstance that so affects the integrity of the plea that he has entered that it would be a miscarriage of justice to hold the applicant to that plea. I am satisfied that the integrity of the applicant's plea of guilty is impugned in at least two ways.

58 Firstly, Mr Jackson explained how in the circumstances the applicant's reasoning processes did not produce a plea decision that can fairly be permitted to stand. Mr Jackson described the difficulties for the applicant in conceptual thinking where the alternatives are presented in a very abstract and open-ended way. That is what occurred in the conferences with counsel following the Judge's observation. No doubt, had Mr Cahill appreciated the applicant's intellectual disability he may have approached the process of giving advice concerning the applicant's plea in a different way.

59 The discussions that the applicant had with his legal team did not place the applicant in a position where he could readily reason through the pros and cons of the decision to change his plea. He was, as Mr Jackson suggested, singularly focussed on one piece of information that he received from the Judge, namely, that if he pleaded guilty he would receive a significant sentencing discount. Plainly, there were many relevant factors beyond the Judge's belief about the probable jury verdict and the prospect of a sentencing discount. Consistently with his experience of the applicant, Mr Cahill was surprised by the applicant's focus on the Judge's observation and found the applicant's decision to change his plea surprising, both when it was first announced and when he maintained it the following morning. Mr Cahill observed that the Judge's comments had a big impact on the applicant and that he was significantly emotionally distressed when entering the plea of guilty on arraignment.

60 I bear in mind that the commencement of a trial on a charge of murder before a jury is a period of great stress for most accused persons. That may not be a circumstance warranting any special consideration, for it will usually be the case. However, the relevance of stressful circumstances on this application is the effect of stress on the decision making processes of persons with severe dyslexia. I accept that the limitations from the applicant's intellectual disability were exacerbated by the stress he felt and that his capacity to make the decision that was left to him in the manner that it was resulted in the applicant being in a position of unfair or special disadvantage in making a judgment as to his own best interests. The decision was one for the applicant, no one else. Others may have had his best interests at heart but that is not to the point. The result was a miscarriage of justice. The applicant's decision was followed, as is apparently common for persons with severe dyslexia, by a realisation that he should not have done what he did.

61 I am not being critical of counsel's conduct because, as Mr Jackson explained, he would not have expected them to have detected the applicant's cognitive disabilities and I am satisfied that they were not detected by them. Absent those cognitive difficulties, the careful approach of counsel in dealing with the applicant's response to the Judge's observation cannot be faulted.

62 The second matter that contributed to a miscarriage was the Judge's observation. The miscarriage of justice flows from the fact that the Judge was seen by the accused to have decided that a discount would be allowed for a plea of guilty before such a plea was entered. It was doubtless a consequence of the Judge's long experience in the criminal law that he suggested a psychiatric or psychological assessment of the applicant when he sought leave to change his plea. The Judge appeared concerned that the applicant might not have been fit to plead. Notwithstanding Mr Jackson's observation, the Judge had no opportunity to detect any cognitive difficulty on the applicant's part at the time that he made the observation concerning the sentencing discount. It is precisely because a trial judge has no practical opportunity at the commencement of the trial to make any assessment or form any impression of an accused that trial judges commonly exercise particular care in the observations that are made in the presence of an accused immediately prior to the start of a trial. The response of the applicant, as a man suffering from a then unidentified intellectual deficit, demonstrates the wisdom in the observations of Nettle JA in Guariglia, set out above.

63 When the Judge intimated in advance of a plea of guilty that such a plea would lead to a discount on sentence, that observation appeared as an inappropriate engagement in judicial plea bargaining when the appearance of impartiality was critical. In this case, the observation had the effect of materially contributing to dissuading the applicant from exercising his right to have his guilt decided by a jury.

64 Notwithstanding Mr Jackson's analysis, the prosecution submitted that the applicant could not have been focussed solely or totally on the Judge's observation. After all, he knew what occurred at the time of the killing and that the instructions given to his legal team included matters that were not true. He also sought the opinion of his counsel as to his prospects and the advice that he received was not encouraging for a contested trial. These matters might support an inference that the applicant was taking account more than Mr Jackson gives credit for. I am not persuaded by that analysis to conclude that there was no miscarriage of justice. I do not regard the Judge's observation as the only cause of the applicant's decision to change his plea but I am satisfied that it was a material cause of the applicant's change in position.

65 The applicant's plea of guilty was not made as an exercise of free choice because he was at a special disadvantage and I grant leave to the applicant to withdraw his plea of guilty and enter a plea of not guilty when re-arraigned. The proceeding will be listed before Lasry J for directions for trial on 21 September 2016 at 9.30am.

[1] R v Inns (1974) 60 Cr App Rep 231, 233 (Lawton LJ), Weston (a Pseudonym) v The Queen [2015] VSCA 354, [109] (Redlich JA).

[2] R v Middap (1989) 43 A Crim R 362, 364 (Crockett, O'Bryan, and Gray JJ), Weston (a Pseudonym) v The Queen [2015] VSCA 354, [120].

[3] Weston (a Pseudonym) v The Queen [2015] VSCA 354, [60], [120].

[5] R v Wade [2011] QCA 289; [2012] 2 Qd R 31, 42 [52]; Weston (a Pseudonym) v The Queen [2015] VSCA 354, [109] (Redlich JA).

[6] (1989) 43 A Crim R 362, 364.

[7] [2015] VSCA 354.

[8] [2014] NSWCCA 152, [59] (citations omitted).

[9] R v Pinhassovitch (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O'Bryan JJ, 7 February 1994); R v Sivov [2008] VSCA 100.

[10] R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, 539 [32]. Elmir v R [2009] NSWCCA 22; (2009) 193 A Crim R 87, 96-7 [40]-[41].

[11] R v Sagiv (1986) 22 A Crim R 73; R v Liberti (1991) 55 A Crim R 120; Kim v R [2015] NSWCCA 115.

[12] [2013] VSCA 297 (Weinberg, Coghlan JJA and Lasry AJA).

[13] Criminal Procedure Act 2009 (Vic), s 295(3).

[14] [1995] HCA 41; (1995) 184 CLR 132, 157.

[15] Kumar v R (No 2) [2014] VSCA 102 (Nettle, Redlich JJA and Almond AJA).

[16] [2010] VSCA 343.

[17] With Hansen JA agreeing. Ross AJA dissented. The High Court of Australia refused special leave to appeal: R v Guariglia [2011] HCA Trans 162.

[18] R v Pinhassovitch (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and O'Bryan JJ, 7 February 1994).

[19] [2009] VSCA 254.

[20] With Buchanan JA and Hansen AJA agreeing.

[21] Compare Palankey v The Queen [2013] VSCA 97, [20].

[22] Relying particularly on the passage at [2010] VSCA 343, [36].