Director of Public Prosecutions v El Assaad (Ruling)
[2020] VCC 1984
•10 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01979
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMAL AHMAD EL ASSAAD |
---
JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28, 29 October and 9, 17 November 2020 | |
DATE OF RULING: | 10 December 2020 | |
CASE MAY BE CITED AS: | DPP v El Assaad (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1984 | |
RULING
---
Subject: CRIMINAL LAW
Catchwords: Application to change plea of guilty to not guilty - Applicant to show a miscarriage of justice would occur were the change of plea not allowed - intellectual disability – consciousness of guilt – strong Crown case – admissions – applicant entered into plea negotiations – applicant has not demonstrated a miscarriage of justice would occur - application dismissed
Legislation Cited: Criminal Code (Cth);
Cases Cited: Jamieson v R [2017] VSCA 140
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Saunders | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms J. Poole | Michael J. Gleesons & Associates |
HIS HONOUR:
1 On 28 January 2020 Mr El Assaad (“the applicant”) pleaded guilty to one charge of attempt to import a commercial quantity of a border-controlled precursor contrary to s11.1(1) and s307.11(1) of the Criminal Code (Cth). The offence was alleged to have occurred on or about the 26th day of March 2018 at Melbourne.
2 By Notice dated 3 August 2020, the applicant makes application for leave to change his plea from guilty to not guilty.
3 On 30 May 2019 the applicant was charged with two offences, being attempting to import a border-controlled precursor and importing a commercial quantity of a border-controlled precursor.
4 Prior to being charged, the applicant was interviewed under caution on two occasions on 9 May 2018 by members of the Australian Border Force.
5 The applicant was committed for trial on each of the two charges that he then faced on 2 October 2019. At the time of his committal he pleaded not guilty.
6 Initially the applicant was indicted with two accused in respect of each of the two charges on which he was committed. His two accused were Siu Ming Leung and Murat Hanci. However, the applicant’s matter was compromised on the basis that he would plead guilty to one charge only, being the first charge, attempting to import a border-controlled precursor.
7 Filed in support of the application, were affidavits of the applicant, his brother Samir El Assaad and his mother, Jourmana El Halwe, all affirmed or sworn on 2 August 2020, and they became Exhibits 1, 2 and 3 respectively on the application. In addition, the applicant relied upon the reports of Alice Crole, psychologist, dated 19 September 2019 and 1 July 2020, which became Exhibits 4 and 5 respectively on the application. The applicant also relied upon the reports of Martin Jackson, clinical neuropsychologist, dated 26 June 2020, 30 July 2020 and 14 October 2020, which are Exhibit 6 on the Application.
8 In response, the Crown relied upon the Depositions and the report of Dr Sullivan, psychiatrist, dated 20 September 2020, which became Exhibit “A” on the Application.
9 For convenience sake, a Court Book was prepared that contained each of the exhibits relied upon by the applicant, together with relevant excerpts from the Depositions, as well as a chronology prepared by Mr David De Witt, solicitor and the notes of Mr Anthony Pyne of counsel, made in anticipation of and during conference with the applicant on 20 January 2020. Both Mr De Witt and Mr Pyne, together with the deponents to each of the affidavits and the experts, were all called on the Application.
10 By an Amended Outline of Applicant Submissions, the applicant relied upon three grounds in support of his application. Ground one asserted that there was fresh evidence as to the applicant’s cognitive impairment arising out of the report of Martin Jackson dated 26 June 2020 that raised a potential defence to the charge. Under this ground it was asserted that the applicant’s offer to the Crown to plead guilty to Charge 1 on the original Indictment was made prior to the report coming into existence. It was asserted that the applicant’s plea was offered without him having a proper understanding of the options available to him.
11 Ground two asserted that the applicant’s plea was not a true admission of guilt attributable to a genuine consciousness of guilt.
12 Ground three asserted that there is an issuable question of the applicant’s guilt, being whether the fourth element of the offence can be proved by the crown beyond reasonable doubt.
13 As will become clear ground one directly impacts upon grounds two and three.
14 It was common ground between the parties that with respect to the fault elements the Crown relied upon recklessness and accordingly in respect to a circumstance the Crown would need to prove beyond reasonable doubt that:
(a)the applicant was aware of a substantial risk that a circumstance exists or will exist; and
(b)having regard to the circumstances known to him, it is unjustifiable to take the risk.
15 In respect to a result, the Crown would need to prove:
(a)the applicant was aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him it is unjustifiable to take the risk. (See Chapter 2, Part 2.2, Division 5 – Fault Elements of the Criminal Code Act 1995 (Clth).
16 It was common ground between the parties that:
(i)a court will not permit a change of plea unless the applicant satisfied the Court that not to permit a change of plea would occasion a miscarriage of justice;
(ii)the burden of demonstrating that a miscarriage of justice would occur if the applicant was not permitted to change his plea of guilty rests on the applicant;
(iii)the circumstances in which a miscarriage of justice may be found to arise are not closed;
(iv)the existence of a so-called “issuable question of guilt” does not of itself impugn the integrity of a plea of guilty or mandate a conclusion that a miscarriage of justice would occur if a change of plea was not permitted;
(v)on an application for change of plea before conviction an accused person’s subjective belief in innocence of a charge may bear upon the question whether the plea was a true admission of guilt; and such belief cannot be said to be irrelevant to a judge’s exercise of discretion in certain circumstances.
(See Jamieson v R [2017] VSCA 140 at [44]).
17 The case against the applicant is principally based on:
(i) chatlogs between the applicant and his alleged co-offender, Siuming Leung (“Leung”);
(ii) CCTV of the applicant and his alleged co-offender, Murat Hanci (“Hanci”);
(iii) a recording of conversation between the applicant, his partner, Chrysta-Mai Ferguson (“Ferguson”), and Hanci concerning the content of Hanci’s record of interview and what course the applicant would adopt in conversations with the police concerning his involvement in the transactions then under investigation;
(iv) the applicant’s two records of interview conducted on 9 May 2018.
18 In summary, in the early hours of 3 April 2018, Leung contacted the applicant using the chat feature on the gaming site “League of Legends”. In that chat:
· Leung asked the applicant if he can assist him tomorrow;
· the applicant asked what the job is;
· Leung proposed that he drive the applicant to the post office to pick up something for him in return for $2,000;
· the applicant asked what Leung wants him to do, typing:
“Is there a risk of jail or getting caught? I assume so. That’s why u won’t do it ya self, correct?”
· Leung responded that there is no risk if you are smart;
· the applicant proposed using another person to collect the parcel and splitting the money;
· they arranged to meet.
19 In the early hours of 4 April 2018, Leung, the applicant and Hanci met at Box Hill Central carpark.
20 In the morning of 4 April 2018, the applicant communicated with Leung on the League of Legends chat site:
· at 07.10.31 the applicant messaged Leung “about to head off and get my mate and wake him up”;
· at 09.01.36 the applicant messaged Leung “mate is in place hopefully all goes well”;
· at 10.35.23 the applicant messaged Leung “heading home in 10”;
· at 10.35.24 the applicant messaged Leung “package receive (sic)”;
· at 10.37.20 Leung messaged the applicant and asked whether the applicant was at home, to which the applicant replied “yes”.
21 At about 9.37am on 4 April 2018, the package or consignment the subject of Charge 1 was picked up from the parcel desk of the Australia Post Bourke Street Post Office by Hanci.
22 CCTV shows Hanci accompanied by the applicant entering a white Toyota with the package or consignment in his possession.
23 On the League of Legends chat site, at approximately 1.22pm on 4 April 2018, Leung and the applicant discussed how to forward the package or consignment to New South Wales.
24 A series of images found on Leung’s and the applicant’s phones show that at around 2.25pm on 4 April 2018, the package or consignment was sent from the Dallas Post Office to New South Wales.
25 On 5 April 2018, the consignment or package was collected from a parcel locker at the Botany Road Post Office in New South Wales. Later that day, Leung and the applicant discussed the contents of the package, Leung stated “It’s not empty but the important stuff is gone”. The applicant replied “How am I meant to know bro. I sent it off with it being 7kg. It was not empty”.
26 On 4 May 2018, Hanci took part in a record of interview with Australian Border Force Officers. At the end of the record of interview, Hanci was provided with a copy of the record of interview and released. That day, Hanci arranged to watch his record of interview with the applicant and his partner, Ferguson. Ferguson used her mobile phone to record Hanci, the applicant and herself viewing the record of interview and their conversation about its contents.
27 During the applicant’s first record of interview, he told the investigators that he was asked by Hanci to give him a lift to the post office because he wanted to pick up a box. He said Hanci could not drive himself because his vehicle was unregistered and that Hanci “guilted me” into taking him to the post office. The applicant stated that he did not pick anything up from the post office, and that his reason for taking Hanci to the post office was that Hanci would pay him $250 that was owed to him, and also pay for the fuel for driving to and from the post office.
28 The applicant told investigators that he said to Hanci “are you sure what you are doing is a good idea?” and further, that he told Hanci “if anything happens don’t even ask me for help”. The applicant told investigators that, in his head, the transaction did not sit well with him, but that after Hanci came out of the post office with the box, he was satisfied that the transaction was legitimate. He told investigators that he was not going to get into trouble for something that he did not do. Later, the applicant reaffirmed that, prior to the transaction being completed, he said to Hanci:
“What if, like, something bad happens … drugs, firearms, anything. I just said a bunch of shit. If anything illegal goes through but in my head right it’s not possible because Australia Post”.
29 Later in the interview the applicant told investigators that he told Hanci “if something does happen please don’t involve me. I’m not gonna help you because this is your decision. I’m only here because you guilted me”. The applicant completed the interview by saying “on my children’s lives, never in my life this is a complete shock to me” and later, “if anything I’m guilty of being too of helping, you know, being a friend. Because I don’t know – being stupid … for this situation”.
30 After leaving the police station, it appears to be common ground that the applicant spoke with his mother, who told him to tell the investigators the truth. The applicant returned to the Broadmeadows Police Station and at 1.25pm a second record of interview commenced. The applicant told the police that 90 per cent of what he had told them earlier was true, that he had been offered the same job that Hanci was offered in regard to picking up a package, but asserted that when he asked [Leung] him what was inside “… he wouldn’t give me an answer. I said ‘no, I don’t want to do it. I don’t feel comfortable coz it sounds so fucking shady’.”
31 The applicant went on to tell investigators that he then contacted Alex [Hanci] and “explained to Alex the job the guy had offered me”. He told police that he made it clear to Alex that the job sounds “so suspicious”.
32 The applicant referred to Leung as “Sammie”. Thereafter, the applicant described the transaction that took place at the Bourke Street Post Office and, throughout the balance of the record of interview, told investigators that his view of the transaction was that it was illegal. That he told Hanci this, but that Hanci wished to continue with the transaction as he needed the money. The applicant maintained that Hanci only got the job because he [the applicant] had it offered to him but declined it. That even though he had given Hanci fair warning and told him everything not to do it, it was still his own greedy end that made him do it.
33 The relevant lines from the chatlog are from line 172 to line 208. Which exchanges commenced at 01.00.28 and conclude at 01.13.28 on 3 April 2018. I will not set them out.
34 On its face, Leung offered the applicant a job to drive to a post office to pick up a thing for him. Leung was willing to pay the applicant $2,000 for this job. The applicant questioned Leung as to how he can perform this task, as he does not have an ID to collect anything. The applicant asked Leung to type full details of how he could get away with the idea and what Leung wanted him to do. Leung asked whether the applicant is in or not. To which the applicant responded:
“and I’ll give u my answer coz I still don’t wanna risk anything lol even if the money is insane … is there risk of jail or getting caught? i assume so. That’s why u won’t do it ya self, correct?”
35 Leung repeated that he needs to know now. The applicant responded that he knows someone that he can ask, and that he could go with him and split the money for the job with him. Shortly thereafter, the applicant told Leung that he can ask the third person (Hanci) now.
36 The exchange between Leung and the applicant on the chatlog is central to an understanding of what transpired in respect to picking up the package from the Bourke Street Post Office, as well as the discussion between Hanci, the applicant and the applicant’s partner concerning Hanci’s record of interview and the applicant’s two records of interview.
37 During the course of the hearing Mr De Witt swore that prior to committal one of the applicant’s then co-accused (in all likelihood Hanci) had made an offer to the Commonwealth Director of Public Prosecutions (“CDPP”) to plead to lesser offences under the Customs Act, and that the offer had been refused. However, it had been suggested to Mr De Witt that such an offer from the applicant was worth exploring. Mr De Witt commissioned Ms Crole’s first report and used it in support of an offer to the CDPP to plead guilty to customs offences. Ultimately the offer was rejected, and the matter proceeded to committal. (see T103, L2-T104, L20) The relevance of the offer to plead guilty to the Customs Act offences is that it was made by Mr De Witt upon instructions from the applicant. By reference to the chronology prepared by Mr De Witt that was part of the Court Book, the offer made by him on the applicant’s behalf must have occurred after the conference which he described in his evidence. (see T97, L29-T98, L1, T98, L21-T99, L10)
38 In my opinion, the conference with counsel that occurred on 20 January 2020 must be seen in the light of the earlier conference with Mr De Witt and the earlier offer to the CDPP. In addition, making all due allowance for the applicant’s intellectual disability, his account of his meetings with Mr De Witt prior to the conference with counsel are not credible and I accept the evidence of Mr De Witt in this respect. (see applicant’s affidavit, Exhibit 1, paragraphs 18-21)
39 By reference to Mr Pyne’s notes that are part of the Court Book, he was briefed to represent the applicant on or about 27 November 2019. By 27 November 2019, the CDPP had filed an indictment charging the applicant, Leung and Hanci with two charges, together with a Summary of Prosecution Opening. It appears that Mr Pyne had received all the relevant documents by 2 December 2019.
40 Mr Pyne took the brief away with him on the long vacation and on 13 January a Defence response prepared by Mr Pyne was filed with the Court stating in part: “1. The accused will plead not guilty to both charges on the indictment.”
41 At the time of preparing the Defence response, Mr Pyne was in possession of Ms Crole’s report of 10 September 2019, Exhibit 4.
42 In anticipation of trial, a conference with the applicant, his counsel and instructing solicitor took place on 20 January 2020. The applicant’s brother, Samir, was present during the conference. The applicant’s partner attended counsel’s Chambers, but because of the potential for her to be a Crown witness, she was not permitted to be present for the conference with the applicant. (see T155, L15-28)
43 The applicant in his affidavit gave scant evidence as to the conference which lasted at least 40 minutes. However, the applicant affirmed that he had not slept for 48 hours prior to the conference and that he did not really want to go to the conference. The applicant acknowledged that counsel took him through the evidence and explained the elements of the offences to him but stated that he was overwhelmed by the amount of information. Confusingly the applicant states that counsel had made an agreement that the second charge be wrapped up with the first, but later advised the applicant to plead guilty to Charge 1 only.
44 The applicant stated that he felt like he did not have any options and that they, meaning Mr De Witt and Mr Pyne, were not willing to fight for him. He stated his partner said to him “Do you want to go to prison for 15 years and see your children when they are adults or for 8 years and have a chance to see them grow?”. The applicant affirmed that his brother said to him “Given the options you are better off taking the deal that gets you out quicker”.
45 The applicant affirmed in his affidavit that he never said to Mr Pyne that he was guilty but that he told Mr Pyne that he would plead guilty. Ultimately the applicant affirmed “When he told me his opinion I just gave up”. The statement made by the applicant, as to his ultimate attitude to the position in which he found himself sits in stark contrast to the evidence given by Mr Pyne to which I will subsequently refer.
46 The applicant was called on the application and contrary to the contents of the chatlogs he swore that he was offered $1,000 by Leung to pick up the package. (see T24, L13-T22) Further, he swore he did not think that there would be anything suspicious about the job that he was being offered. (see T26, L2) He attributed the line in the chatlog “‘Is there a risk of jail or getting caught?’ ‘I assume so, that’s why you won’t do it yourself, correct’” (to his partner) Ms Ferguson. (see T27, L16-29) Later, the applicant maintained that he refused to take the job. (see T28, L1) While the applicant admitted that he gave Alex (Hanci) the job, he claimed he became involved in the matter only because Hanci “guilted me”. (see T30, L4-27)
47 The applicant alleged that both Mr De Witt and Mr Pyne said “they can’t fight the case” and “they’re not gonna bother fighting the charges” and further they said the prosecutor offered a deal to wrap up the two charges into one and that he would be crazy not to “take the deal because if we went to trial or anything we would have lost”. (see T32) Further, the applicant in his evidence-in-chief asserted that “they didn’t go through the elements. They said the police have to prove three elements. He didn’t tell me what they were”. (see T33, L16-19) Later in his evidence-in-chief the applicant alleged against Mr Pyne that Mr Pyne told him “‘You’re fucked’”. (see T34, L13-14)
48 Each of the allegations made against Mr De Witt and Mr Pyne outlined above were put to them and denied by them. I accept the evidence of Mr De Witt and that of My Pyne in this respect.
49 Not unexpectedly under cross-examination the applicant performed poorly, however in respect to the issue that his partner was the source of the response that referred to “a risk of jail”, I reject this evidence, as taking into account the timings set out in the chatlog and the spontaneity of the exchanges between Leung and the applicant it is inherently unlikely that the applicant’s partner was the author of some or any of the entries attributed to the applicant. Furthermore, while the applicant maintained that his partner was against him becoming involved in the transaction, the subject of the charge to which he pleaded guilty, it is plain from the applicant’s records of interview that he did become involved in the transaction and that he directed his mind to the relevant risk.
50 Mr Samir El Assaad, under cross-examination, admitted in respect to the applicant’s conference with Mr De Witt that his best recollection of that meeting was contained in his affidavit (see T79, L17).
51 Mr El Assaad’s relevant recollections of that meeting are:
(i) “David said the case didn’t look good.”
(ii) The applicant was crying and said “I am innocent. I didn’t do anything.”
(iii) David told Jamal (the applicant) to have a hard think about what he wanted to do.
(iv) David never directly said to my brother in that meeting to plead guilty.
(See affidavit Exhibit 2, paragraph 6)
52 In respect to the conference with counsel, Mr El Assaad in his affidavit swore that:
(i) “Anthony [Mr Pyne] just quickly kind of flicked through a few pages and just said the same thing as David had said – it doesn’t look good for his case. They didn’t say “plead guilty” but one of the things David said was “you’d be crazy not to [plead guilty]”.”
(ii) “Anthony kind of agreed along those lines.”
(iii) “David and Anthony said there was a lot of evidence against my brother. That’s when I said to my brother you should plead guilty then. They are basically telling you there is no hope. I actually told my brother to plead guilty because at that stage he was broken, and he had had enough.”
(iv) “They didn’t say to him you can’t plead not guilty, but the vibe I was getting was “you don't have a chance to win”.”
53 Under cross-examination, Mr Samir El Assaad proved to be an unsatisfactory witness. He frequently gave non-responsive answers to questions asked of him and at times attempted to avoid answering questions asked of him. (T83)
54 Mr El Assaad did not support his brother’s allegations made against each of Mr De Witt and Mr Pyne that they said “they can’t fight the case” and “they’re not gonna bother fighting the charges” and “take the deal because if we went to trial or anything we would have lost” or that Mr Pyne in conference told the applicant “You’re fucked.”
55 Whilst not yet having come to the evidence given by Mr De Witt nor Mr Pyne in any detail, I accept Mr Pyne’s evidence that the conference lasted for at least 40 minutes and that in the conference Mr Pyne did take the applicant through the elements of the offences that he faced and explained them to the applicant. (See De Witt T100 L30-T101 L6 and Pyne T157 l12 -T161 L22)
56 In so far as Mr El Assaad swears that his brother was upset and/or crying at one stage during the conference with Mr De Witt and Mr Pyne, I accept this as so, as it is consistent with the evidence given by Mr De Witt and Mr Pyne.
57 The applicant’s mother, Mrs El Halwe, swore an affidavit that is Exhibit 3 on the application. When tested in cross-examination, Mrs El Halwe had little recollection of the conference between Mr De Witt and her son. Mrs El Halwe was not present for the conference with counsel but consistently attested that the applicant consistently professed his innocence. Like her son, Samir, Mrs El Halwe swore to the effect that the applicant was naïve and gullible.
58 Ms Crole is the author of reports dated 19 July 2019 and 1 July 2020 (Exhibits 5 and 6). The first report predates the pretrial conference with Messrs Pyne and De Witt and the entering of the applicant’s plea of guilty. The second report was made with the benefit of Mr Jackson’s first report dated 26 June 2020.
59 When called as a witness, Ms Crole adopted the opinions expressed in each of her reports and swore that the contents of the reports were true. It is to be noted that at paragraph 12 of Exhibit 5, Ms Crole states in respect of the applicant:
“… He understood the nature and purpose of the current assessment, the limits of confidentiality, and that a report would be forwarded to his legal representatives for use by the Court. This report is based on the assumption that Mr El-Assaad stated the facts to the best of his knowledge.”
60 What follows from this statement is that the applicant was capable of understanding complex concepts in respect to Ms Crole’s function and further that Ms Crole based any opinions and comments that she made in her report on an acceptance of the applicant’s instructions. Further under questioning Ms Crole accepted that she had not been given the chatlogs as part of the materials provided to her in preparation for her consultation with the applicant and that her opinions were entirely based upon the applicant’s self-reporting. (see T126, L13-18) It was also evident that Ms Crole was not provided with both Records of Interview conducted with the applicant on 9 May 2018.
61 Ms Crole’s diagnostic impressions were that the applicant suffered from Persistent Depressive Disorder (early onset, with intermittent depressive episodes, with current episode severe) and a Generalised Anxiety Disorder.
62 However, Ms Crole noted that the applicant “demonstrated potential cognitive limitations and impressed as naïve and cognitively younger than his stated age”. Later at paragraph 52 of her report (Exhibit 5), whilst acknowledging that formal cognitive assessment was beyond the scope of her interview, she opined that the applicant demonstrated some cognitive limitations in areas including comprehension, memory, vocabulary and general knowledge and reasoning. (see paragraph 52) Later in her report under the heading “Recommendations” at paragraph 74, Ms Crole reported:
“With probable cognitive limitations, he may require alterations to reasonably follow court proceedings, for example:
▪ Use of simple language and check for understanding
▪ Repeating oneself in a variety of different ways until he understands
▪ Allow more time for processing of information
▪ Illustration of ideas with concrete examples”
63 In her subsequent report at paragraph 13 Ms Crole opined:
“Mr El Assaad continues to meet criteria for persistent depressive disorder with current depressive episode, of moderate severity and generalised anxiety disorder. As per recent neuropsychological report, with an estimated IQ of 67, he furthermore meets the criteria for mild intellectual disability.”
64 Subsequently and surprisingly at paragraph 16 of her report, Ms Crole opined:
“He lacks criminogenic attitudes and the capacity to orchestrate criminal activity.”
65 When tested on this statement by reference to the chatlogs I put a proposition to Ms Crole in the following terms:
“It’s a clear indication of a capacity to enter into a criminal arrangement is it not on its face?
66 Ms Crole answered:
“On its face, yes.”
67 Whilst Ms Crole’s reports and evidence may be relied upon as accurate in respect of her assessment of the psychological disorders which the applicant suffered at the time that she consulted with him thereafter, her reports and evidence are based upon an uncritical reliance on the applicant’s instructions to her. For my purposes this is entirely unsatisfactory. Further, Ms Crole was not provided with relevant material like the chatlogs and both Records of Interview in which the applicant participated in 2018 in order to gain some insight into the applicant prior to consulting with him.
68 It must be acknowledged that Ms Crole was alive to the applicant’s cognitive limitations and accordingly so should have been Mr De Witt and Mr Pyne.
69 I have previously dealt with some aspects of Mr De Witt’s evidence specifically in respect to his conference with the applicant and the matter of the offer made to the CDPP in respect to Customs Act offences. Further, I have made findings in respect to the applicant’s allegations made against Messrs De Witt and Pyne said to have taken place in the conference held on 20 January 2020.
70 Although Mr Pyne swore that Mr De Witt took notes during the 20 January conference, no such notes were forthcoming from Mr De Witt. Mr De Witt swore that he took all reasonable precautions to make sure that the applicant understood the things that Mr De Witt said to him (T100, L8). In respect to the conference of 20 January, Mr De Witt swore that Mr Pyne took the applicant through each of the elements of the offence and took the applicant to particular aspects of the evidence that would be relied on by the prosecution to prove those elements and that Mr Pyne focused on the element of recklessness. (see T101, L1-6)
71 Mr De Witt described the applicant’s state as heightened during the conference and that he became very upset on a number of occasions. Mr De Witt recalled that things had to be repeated to the applicant and that matters in the conference slowed to allow the applicant to vent his emotions. Mr De Witt was satisfied that the applicant was following what he and Mr Pyne was saying. Further, he indicated that if he was not of that view, he “would have taken more steps I guess”. (see T101, L7-14)
72 Mr De Witt swore that Mr Pyne’s ultimate view was that the way forward was to offer a plea to charge one and the withdrawal of the second charge and that this was explained to the applicant. Further, Mr De Witt swore that he had no recollection of thinking that during the conference the applicant did not understand that proposition. (see T101, L19-30)
73 Mr De Witt recalled that during the conference the applicant was quite upset and that his brother Samir attempted to calm the applicant down and get him to listen. Mr De Witt recalled that the applicant would often express or go into tangents about his fear of what penalty might be imposed on him and the impact that such a penalty would have on his family. (see T102, L17-23)
74 Mr De Witt swore that no pressure was placed upon the applicant during the the conference.
75 Under cross-examination Mr De Witt opined that he did not believe that the applicant would have understood the contents of the hand-up brief should it have been provided to him. However, the hand-up brief was ultimately provided to the applicant’s mother. In part, the reluctance to provide the hand-up brief to the applicant was Mr De Witt’s concerns for the applicant’s mental health. This concern appears to have arisen from the applicant’s response to matters raised by Mr De Witt with the applicant in Mr De Witt’s initial conference with the applicant. (see T107 and 108)
76 Mr De Witt noted that the applicant was particularly dependant upon his family for support but notably:
“… he was extremely upset about the position that he found himself in. He was extremely fearful of going to prison and the impact that that would have on his family … and he was saying that … he was innocent and that it was a very unfair situation he – um he was in and that his life was, he felt, over.” (see T109, L17-23)
77 Mr De Witt accepted that should he have known that the applicant suffered from an intellectual disability his approach to the applicant would have been “completely different”. (see T110, L14-23)
78 I asked Mr De Witt how he would have conducted himself should he have known that the applicant suffered an intellectual disability and his answers are set out at transcript, pages 111 and 112. However, in summary Mr De Witt would have:
(i) increased the number of conferences;
(ii)explored having neutral support for the applicant rather than members of his family; and
(iii)that he would have broken things down in a far more “digestible” manner, with conferences dealing with smaller amounts of subject matter. He would have considered the use of graphs and pictures to assist in the process of a conference.
79 Ultimately Mr De Witt was of the opinion that the information provided to the applicant would have been provided to him in a fundamentally different way, taking precautions to ensure that the accused understood the information provided to him. (see T111-113)
80 In respect to Mr Jackson’s initial report Mr De Witt, was of the opinion that the report fundamentally shifted the viability of the applicant’s defence to recklessness. (see T117, L8-15) I understood this statement to mean that because of the applicant’s intellectual disability he was less likely to understand the implications and consequences of accepting the offer made to him by Mr Leung. Mr De Witt seemed to base his opinion on Mr Jackson’s opinion of the applicant’s increased suggestibility and limited decision-making and reasoning skills. He did so “Because I think that reduced mental capacity in the context of an intellectual disability completely changes the colour of those interactions”. (see T118, L13)
81 Mr Pyne like Mr De Witt, should he have known that the applicant suffered from an intellectual disability, would have conducted his conference in a different way. However, the tenor of Mr Pyne’s evidence was that the different tools available to him in conducting a conference with a person with an intellectual disability depended on how a conference progressed. Mr Pyne allowed for the possibility that there might have been a longer conference and that he would have been aware that there was a necessity to check the applicant’s understanding. However ultimately Mr Pyne swore:
“… my impression from the conference – it was a difficult conference because of what I was telling him. I knew he was emotional and in relation to the conference itself, my view at the time of his reaction was that it was a perfectly natural reaction to the information that I was giving him. That is, he’s emotional. I didn’t have the impression at the time that he didn’t understand.” (see T173-174)
82 In respect to the issue whether Mr Pyne had known that the applicant’s IQ was 67 at the time of his conference whether his advice to the applicant would have been different, Mr Pyne swore:
“I think I would have, I think I would have spoken to him about it, but I’m not sure that I would have advised him to run the trial, particularly given the potential resolution.” (see T171, L26-29)
83 The reference to “it” was the effect of the applicant’s level of IQ upon the recklessness element. (see T171)
84 In respect to the way in which Mr Pyne conducted his conference, I will not repeat his evidence, however it must be borne in mind that Mr Pyne had been a public defender at Victoria Legal Aid Chambers for a period of four years, as well as having spent a combined period of five years practising in the Northern Territory dealing with Aboriginal people in the thousands who would fall into the category of exhibiting cultural differences from Europeans and having difficulty understanding advice that he would necessarily give as a white man in English. Further, he was attuned to making sure that people who were receiving his advice understood it. (see T156, L2-17)
85 In respect to the advice that Mr Pyne gave the applicant to attempt to settle the matter, Mr Pyne swore that he had the impression that the applicant understood what he was saying, that the applicant’s brother was advising the applicant to “listen to the lawyers” and that at no stage did he indicate to the applicant that he had to plead guilty. Further, and tellingly in my opinion, Mr Pyne had the recollection of the applicant saying something to the effect of, if they say no to this deal that we propose to offer, that he wanted to plead not guilty to everything, which would imply that he understood that he had the option to plead not guilty and that was Mr Pyne’s understanding. (see T162-163, L8)
86 On 26 June 2020 Mr Martin Jackson, neuropsychologist, provided a report to Mr De Witt, solicitor. As part of the materials provided to Mr Jackson was the report of Ms Crole dated 19 December 2019, together with a report of Mr Fares Abdulwahab, psychologist, dated 23 July 2019, two Records of Interview conducted on 9 May 2018 and an Australian Border Force Statement of Facts. The report from the psychologist, Mr Abdulwahab, was not relied upon by the applicant in his application. In addition, it is apparent from Mr Jackson’s report that the applicant consulted a psychiatrist, Dr Ibrahim, but that Dr Ibrahim had refused to provide a report in respect to the applicant.
87 Under the heading “General intelligence” as a result of testing conducted by Mr Jackson, the applicant’s full IQ was assessed as 67, which is in the extremely low range and consistent with mild intellectual disability. In respect to the applicant’s verbal comprehension, perceptual reasoning, working memory and processing speed, all of his scores were in the borderline range. Further in terms of his working memory skills, his immediate memory span was in the extremely low range. Notably, the applicant’s vocabulary and reading of irregular words was in the borderline range whilst his reading of regular words was low average. He had a particular strength “average” in verbal fluency with both letter fluency and category fluency being average. Likewise, the applicant’s executive strengths in the areas of letter fluency and basic planning and organisational skills was average.
88 Whilst these reasons are no place to set out in full the contents of Mr Jackson’s 23-page initial report, he did opine:
“Mr El-Assaad’s condition does not make him disinhibited and there was no evidence of a disorder of impulse control on formal assessment.
Mr El-Assaad’s mild intellectual disability and mental health issues do not affect his ability to understand that importing and trafficking drugs is wrong or illegal. However, his intellectual disability and associated cognitive impairments clearly impact on his ability to process and evaluate information where he is not given specifics. As such, his condition does affect his capacity to think clearly and to make calm reasoned decisions and appropriate judgements …”
89 Mr Jackson continued:
“… Whilst most people would think that being offered $1,000.00 to go and pick up a parcel from the post office has got to indicate there is something suspicious or bad about the parcel, Mr El-Assaad’s intellectual disability with associated very poor executive skills means that he would not necessarily have considered this to be strange or unusual. It is noted that he did ask his wife whether he should do it and she said no, and so he decided not to. However, the person has then told him to find someone else to do it, which he did because his friend Alex was in financial difficulty. He then kept the box in his car and sent it off to NSW after Alex asked him to do so. I am not surprised that Mr El-Assaad did not question any of these situations, given the state of his cognitive abilities …”
90 While I unreservedly accept the results of the tests conducted by Mr Jackson, he, like Ms Crole, uncritically accepted the applicant’s instructions in respect to his actions and the influences that prompted him to act in the way that he did. Whilst given the transcripts of the two Records of Interview conducted with the applicant Mr Jackson did not call for nor did he observe the audio-visual recording of the first Records of Interview, nor did he listen to the audio record of the second interview. More importantly, Mr Jackson was not briefed with, nor did he call for the chatlogs which had the capacity to cast a very different light on the applicant’s instructions to Mr Jackson.
91 It was only when Dr Sullivan formed the view that Mr Jackson had not been briefed with the chatlogs that the chatlogs were provided to Mr Jackson and despite the capacity of those logs to cast doubt upon the applicant’s instructions to Mr Jackson, Mr Jackson did not alter his opinion.
92 As an example, Mr Jackson accepted the applicant’s instructions that when he was communicating with Leung on the chatlogs in the early hours of 3 April 2018, that the applicant was conversing with his partner Ferguson. When this proposition was tested by me in the following exchange:
Q:“Let’s assume that his wife did not communicate anything to him?---
A: Yes.
Q: And that in fact he is the author of each of the responses in respect to the chat log. That puts him - - -?---
A: Then that would be very damning, Your Honour.” (see T27, L12- 16)
It seems that Mr Jackson was only prepared to be critical of the instructions that he had taken from the applicant when confronted with alternative scenarios based on the depositional materials. (see T27, L12-16)
93 A similar situation arises in respect to Mr Jackson’s opinion that the applicant is easily influenced particularly when put under pressure. That this is so is evidenced by the cross-examination of Mr Jackson by Mr Saunders:
Q:“… You said in relation to a matter that was raised about Mr El Assaad pleading guilty, that he would be influenced by his mother and his brother, and he doesn't have the wherewithal to argue against it?---
A:Yes.
Q:And that's a pattern that you detected throughout his behaviour as it was reported to you. He relied on other people to get him through situations that he didn't particularly understand. He accepted their advice and did what he was told?---
A:That's right.
Q: Yet, in this situation, if he did speak to his wife, she tells him not to do it, correct?---
A: Correct.
Q: And he does it, correct?---
A: Correct.
Q:So, that is a bit distinct to the pattern of behaviour that you told His Honour he exhibits, correct?---
A:That is correct, yes.”
(see T30, L6-30)
94 Mr Jackson was tested under cross-examination in respect to his opinion as to the applicant’s ability to reason when under stress in the following exchange:
Q:“You mentioned that Mr El Assaad would be stretched during the course of the police record of interview and one of the factors that may well have caused that stress was that he was told for the first time that there were drugs in the package?---
A: Yes.
Q:In fact, he knew that there were drugs in the package prior to that because he'd associated with Mr Hamzi who'd been interviewed before. So Mr El Assaad when he goes down to deal with the police, knows that there are drugs in the package, or that the police are alleging there were drugs in the package, because Mr Hamzi told him that. So that's not a fact that's necessarily likely to contribute to his stress as much as a desire to avoid being associated with the drugs, correct?---
A:I would agree with that, yes.”
(see T40, L30-T41, L13)
95 As to the critical issue of Mr El Assaad’s understanding of the analysis of the evidence conducted by Mr Pyne and the advice given to the applicant, I put Mr Pyne’s evidence in respect to the applicant’s attitude to the CDPP refusing the applicant’s offer (see T163, L1) and put to Mr Jackson the following:
Q:“So if it be that, having had discussion with counsel, and instructed counsel to offer one of the two charges, does the statement that is asserted that Mr El Assaad made was if the prosecution effectively don't do this deal that we propose to offer, he wanted to plead not guilty to everything, demonstrate an understanding in Mr El Assaad that, (1) He's making an offer to plead guilty, and if the other party is not prepared to come to his offer, then it's box on?---
A:That's how I would have interpreted that comment, Your Honour
Q:All right, which on its face, would seem to communicate an understanding in Mr El Assaad that, (1) He's offering to plead guilty to one charge and if the Crown aren't prepared to plead it - accept it, I beg your pardon - he's prepared to go to trial?---
A:That is how I would interpret that Your Honour.”
Q:Which would demonstrate, on its' face, an understanding of the position in which he stood?---
A:Yes, it would.”
(T42, L1-18)
96 In his final report Mr Jackson opined:
“I am of the opinion that the cognitive deficits, as well as the psychosocial deficits that Mr El Assaad has clearly impacted on his decision to plead guilty in circumstances where he deposes that he believes himself to be innocent.”
97 The passage continues with Mr Jackson justifying his opinion on an uncritical acceptance of his instructions from Mr El Assaad and the contents of the affidavits of his brother and mother. I do not accept this opinion.
98 While plainly the applicant has cognitive deficits and psychosocial deficits and is prone to be influenced by others, Mr Jackson’s opinion is flawed by an uncritical acceptance of his instructions from the applicant and the contents of the applicant’s brother’s and mother’s affidavit.
99 Furthermore and for the reasons which follow I accept the evidence of Dr Sullivan on the critical issues of the applicant’s capacity to have understood the advice he received in conference from counsel and his ability to instruct counsel to make an offer to the CDPP that he would plead guilty to Charge 1 on the Indictment on the basis that Charge 2 would be forgiven, and that if that offer was not accepted he would go to trial.
100 Dr Sullivan, psychiatrist, is the author of the report dated 20 September 2020, that is Exhibit “A” on the application. Contained within the report were the following opinions:
“…
(b) Intellectual disability is likely to impact at least mildly on his ability to think clearly and make reasoned decisions. The level of sophistication of his thinking, his ability to think through a range of different consequences and the capacity to enact those choices may be reduced. Furthermore, a significant comorbid mood disorder may also impact upon those choices, although it is not clear that this was of significant concern at the time of the alleged offending.
(c) Intellectual disability is unlikely to have caused or contributed to the offending with which he was discharged. It appears that if the offences are as alleged, the motivation for assisting his acquaintance to collect the package was financial.
(d)I do not consider that intellectual disability would have affected his ability to understand the wrongfulness of his actions at a fundamental level.
(e) On the materials provided, it appears that Mr El Assaad was aware of the nature and quality of his conduct, and was able to reason with a moderate degree of sense and composure about whether this conduct was wrong. The chat log indicates that he was aware of the potential illegality of his actions and had been counselled by his wife not to engage due to potential legal consequences.
… .”
101 Later Dr Sullivan opined:
“Intellectual disability may have impacted on his decision to plead guilty. The materials support the contention that at times of stress, Mr El Assaad may feel overwhelmed and struggle to assert himself and seek explanation when he does not really understand.
However, it is also noted that he has attended appointments with people who may also have assisted him or advocated for him.
Furthermore, there is no material from his earlier legal representatives indicating that they held concerns about his capacity to provide instructions.”
102 Finally, and importantly Dr Sullivan disagreed with the conclusions reached by Mr Jackson, Dr Sullivan noting perceptively that Mr Jackson did not appear to have been provided with the chatlogs for the preparation of his initial rport.
103 It is apparent from a reading of Dr Sullivan’s report that he directed his mind more to the applicant’s capacity to commit the crime to which he pleaded guilty rather than the circumstances in which the decision to plead guilty was made.
104 When tested by Ms Poole of counsel, who appeared on behalf of the applicant, Dr Sullivan was asked:
Q:“So do you accept that he has a reduced ability to consider risk?---
A:Well, it very much depends on the context of the discussion. Um, there are different quantifications of risk some of which are much greater than others, um, but I certainly think that overall, um, his intellectual disability is likely to at least mildly reduce his capacity to think through the range of possible contingencies which might eventuate:
(see T53, L20-27)
105 Later Dr Sullivan accepted the proposition that the applicant had a reduced ability to be aware of risk. However he later opined:
“… information contained in the chat log to me indicated … an awareness of the substantial basis of that risk and some … evidence of reasoning about it. So in that sense I don't think that the intellectual disability would have contributed to his weighing of that risk significantly.”
(see T54, L19-24)
106 In respect to the issue of whether the applicant’s partner was the auther of some and indeed the most relevant entries in the chatlogs, Dr Sullivan accepted that if the applicant was not the author of the question he may have had less of an understanding of the significance of the potential for illegality. (see T57, L7-16)
107 Dr Sullivan, when asked in respect to how one might deal with a person with an intellectual disability, set out a regime similar to that recommended by Ms Crole and the processes which Mr De Witt and Mr Pyne might ordinarily go through in such circumstances. (see T60)
108 Importantly Dr Sullivan accepted that it was reasonably possible that the applicant made his decision to offer a plea of guilty because he accepted the advice of his lawyers and his brother rather than informing his own independent view about it. (see T61, L16-31)
109 Dr Sullivan opined that he considered Mr El Assaad to have a very mild level of intellectual disability and further that he can use language quite functionally. (see T62) Dr Sullivan was questioned in respect to the proposition that if the applicant’s partner had alerted him to the illegality of the offer made to him by Leung that is reflected in the chatlogs that this intervention would have alerted the applicant to the potential illegality of the matter and Dr Sullivan considered that this would be so. (see T65-T67, L6)
110 When I questioned Dr Sullivan about the absence of adopting an interview discipline appropriate for a person with an intellectual disability and the applicant’s ability to have understood what was being told to him, to assimilate it and to deal with it, Dr Sullivan opined:
“Yes, Your Honour, on the one hand we have the lawyers opinions that they did not perceive anything untoward about the nature of that interaction, and the presence of his brother. But, on the other hand, firstly we have a man with some cognitive limitations and it's merely, regardless of whether they meet the diagnosis of intellectual disability or not, just characterising them as having cognitive limitations is sufficient.
…
Secondly, his cognitive limitations are exacerbated by a state of anxiety, and thirdly, there is evidence that he is prone to acquiescing or complying with the instructions of others and that's noted by his mother and also in the expert report of Ms Crole. So on that basis, I think there is a reasonable possibility that Mr El Assaad went along with ideas presented to him, rather than necessarily forming his own view.”
(T70, L13-29)
111 However, subsequently when asked about what inferences could be drawn from the applicant’s attitude that if the CDPP refused the offer that was to be put to them that he would go to trial, Dr Sullivan gave the following evidence:
“… That to me certainly suggests a basic and sufficient understanding of the process of instructing his legal representatives, and I base that on two aspects. The first is, he's taken the sensible course of action, which of course is to accept the advice of his lawyer and his brother, who one can only presume is acting in his best interest. But secondly, it demonstrates in my mind, a capacity to assert himself and to make his own opinion known, on a further contingency which might arise. So that to me is fairly sophisticated level of instruction if he's able to - in your own words Your Honour – ‘a two-punch approach.’ If the first punch doesn't connect, then the maybe the second one will.”
(see T71, L19-T72, L1)
112 Later Dr Sullivan swore that in respect to contemplating the CDPP rejecting the proposed offer that it was evidence of the applicant asserting himself “in the same way that he, as you put it, has stated throughout, that he is not guilty” and later “Well I would consider that in fact it shows his ability to take advice from others, but also to stand his ground on the underlying premises on which is instructions are based. That is, as you put it, he’s innocent.” (T72, L3-T73, L2)
113 In summary, I accept the evidence of Messrs De Witt and Pyne as to the conduct of the conference of 20 January 2020. I find that the applicant understood to an adequate level the options available to him and he accepted the advice of his solicitor and barrister and instructed them to make an offer to the CDPP with the rider that if the offer was not accepted he would go to trial on both charges.
114 Coming to the grounds relied upon to support the application. It must be remembered that the public interest in the finality of proceedings, and in upholding a negotiated plea for which the accuse has benefited, is powerful. The applicant asserted that the report of Mr Jackson dated 26 June 2020 raised a potential defence to the charge and that the applicant’s offer to the Crown to plead guilty to Charge 1 was made prior to and therefore in ignorance of the contents of Mr Jackson’s report. It was asserted therefore that the applicant’s plea was offered by him without having a proper understanding of the options available to him.
115 Regardless of my rejection of Mr Jackson’s opinion set out at paragraph 96 herein, Mr Jackson’s reports do no more than allow for the assertion that as the applicant suffers from a mild intellectual disability, he was less likely to appreciate the nature of the arrangement that he entered into with Leung and Hanci. Accordingly, the applicant was less likely to be cognizant of the risks that attached to entering into the agreement that he did with Leung and Hanci and a fortiori the risks that flowed from engaging in the conduct that he did. The evidence of Mr Jackson, should it be accepted, does not raise a potential defence to the charge to which the applicant pleaded guilty but at its highest would make it more difficult for the Crown to make out an element of the offence. One should recall Mr Pyne’s evidence in this respect. (See T171,L26-29) One must also take into account the contents of the chat logs and the admissions made by the applicant in each of the records of interview.
116 Bearing in mind the criticisms that I have made in respect to the contents of Mr Jackson’s reports and the concessions that he made in respect to the contents of the chatlogs, as well as his failure to critically assess his instructions from the applicant and his failure to view the first Record of Interview and listen to the second Record of Interview conducted by the applicant, this ground is not made out. I am fortified in this opinion by my assessment of the strength of the Crown case, in particular the chat logs and the admissions made by the applicant in each of his Records of Interview, they having taken place after a review of Hanci’s Record of Interview and a determination of a course of action of how the applicant would conduct himself in those interviews.
117 In so far as Ms Poole sought in final submissions to rely on the possibility of the defence of mental impairment being available to the applicant Dr Sullivan specifically rejected the availability of this defence. Furthermore, Mr Jackson gave no evidence that the defence was open to the applicant.
118 What flows from the findings made in respect to ground one is that ground three is not made out.
119 As to ground two, I accept unreservedly that the applicant professed his innocence consistently in his dealings with the members of the Australian Border Force and his legal advisors equally. However, the contents of the chat logs which I have found he was the author of when combined with his admissions made in each of the two Records of Interview belie his claim of innocence. It is equally plain that in conference with his legal advisers that when the consequences of his actions were brought home to him the applicant became distressed and maintained his innocence. This is particularly so when the issue of the potential sentence the applicant might receive should he be found guilty at the end of a trial in respect of two charges as opposed to a sentence he might receive should he plead guilty to one charge was discussed. To my mind the applicant’s repeated claims of innocence whilst relevant to my consideration of whether I should exercise my discretion to grant the application are redolent of a fear of the consequences of his actions particularly on his family should he be imprisoned rather than the true claim of innocence. (See paragraphs 73 and 76 above) Indeed there is a delusional quality about them. Accordingly, I am not satisfied that the applicant’s plea of guilty was not a true admission of guilt attributable to a genuine consciousness of guilt.
120 The applicant has not demonstrated that a miscarriage of justice would occur if he was not permitted to change his plea of guilty and accordingly the application is dismissed.
---
0