Director of Public Prosecutions v Harris (a pseudonym) (Ruling)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

CODY HARRIS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2020
DATE OF RULING:	10 December 2020
CASE MAY BE CITED AS:	DPP v Harris (a pseudonym) (Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VCC 2018

REASONS FOR RULING

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Subject: CRIMINAL LAW – Application for change of plea.

Catchwords: Applicant maintained subjective belief in his innocence – Advice from counsel to plead guilty overwhelming – Guilty plea not attributable to genuine consciousness of guilt – Miscarriage of justice if change of plea not allowed.
Cases Cited:R v Middap (1989) 43 A Crim R 362; Weston (a pseudonym) v The Queen [2015] VSCA 354; R v Sivov [2008] VSCA 100; Maxwell v R (1996) 184 CLR 501; R v Liberti (1991) 55 A Crim R 120; R v Holden [2009] VSCA 254; Khamis v R [2014] NSWCCA 152; Meissner v R (1995) 184 CLR 132; Kumar v The Queen [2014] VSCA 102; Jamieson v The Queen [2017] VSCA 140.

Ruling: Application granted.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Ms N Karapanagiotidis	Stary Norton Halphen

HIS HONOUR:

Introduction

This is an application for change of plea by the applicant, Cody Harris[1], in relation to Indictment J10589272.2 containing one charge of sexual penetration of a child under 16, two charges of indecent act with a child under 16 and one charge of common assault.
[1] A pseudonym.

Procedural history

The procedural history is as follows:
On 1 March 2018, the applicant was arrested and interviewed by police and released on bail.
A contested committal hearing proceeded on 1 to 3 August 2018 and the matter was listed for trial on 18 March 2019. The applicant was facing 17 charges in relation to four complainants being the applicant’s two biological daughters, his biological son and his stepdaughter. A further allegation in relation to a friend of the stepdaughter was to proceed on a separate indictment.
On 20 December 2018, a fresh trial indictment was filed, J10589272.1, containing two charges of sexual penetration of a child under 16, three charges of indecent assault, one charge of incest, three charges of common assault and eight charges of indecent act with a child under 16. A separate indictment was filed, J10589272A, in relation to the friend of the stepdaughter that contained one charge of committing an indecent act with a child under 16.
The applicant was represented by Ms Shaana Wilk of James Dowsley & Associates, Mr Tom Lynch of counsel and Mr David Carolan of counsel. Mr Carolan had represented the applicant at the contested committal hearing on 1 to 3 August 2018.
On 18 March 2019, the trial date was vacated due to unavailability of defence counsel and on 28 March 2019, the matter was listed for trial on 26 August 2019. While waiting for a trial judge, an unsuccessful plea offer was made by the defence and an unsuccessful counteroffer was made by the prosecution. The applicant instructed that he wished to proceed to trial. On 28 August 2019, the matter was not reached in the reserve list and was set down for trial on 28 January 2020.
On 28 January 2020, the trial was again in the reserve list. Discussions took place between the prosecution and defence and on 29 January 2020 the court was advised that the matter had settled.
On 30 January 2020, a fresh Indictment, J10589272.2 was filed, containing one charge of sexual penetration of a child under 16, two charges of indecent act with a child under 16 and one charge of common assault. The charges only related to three complainants, as opposed to the initial five complainants. The applicant was arraigned and entered a plea of guilty in relation to all charges. The applicant was remanded in custody and the matter was listed for plea on 20 March 2020. On 6 March 2020 the plea date was administratively adjourned to 29 May 2020. The prosecution opening for plea was filed on 15 May 2020.
In preparation of the plea, issues arose in relation to the applicant’s plea of guilty. On 11 June 2020, Ms Wilk advised the Court that James Dowsley & Associates ceased to act for the applicant and that the applicant was seeking an application for change of plea. The applicant engaged new legal representation, namely Stary Norton Halphen.
On 26 June 2020, His Honour Judge Trapnell adjourned the matter to a date to be fixed for directions hearing. Various mentions were heard and on 20 August 2020, Her Honour Judge Sexton listed the matter for an application for change of plea to be heard on 18 November 2020.

Evidence on change of plea application

On the change of plea application evidence was called from the applicant’s solicitor, Shaana Wilk of James Dowsley and Associates, the applicant’s barristers, Mr Tom Lynch and Mr David Carolan, and from the applicant himself.

Shaana Wilk

Ms Wilk confirmed the contents of her undated affidavit[2] together with the attached exhibit and swore that it was true and correct. The attached exhibit is a copy of the handwritten document the applicant signed confirming the plea settlement details.
[2] Exhibit R1.
Ms Wilk’s evidence was uncontroversial as she played no part in the negotiations that ultimately led to the applicant agreeing to enter a plea of guilty on the settled plea indictment.

Tom Lynch

Mr Lynch was briefed for the initial trial listing on 18 March 2019 however was unwell at that time and the trial was vacated.
On 26 August 2019, Mr Lynch and Mr Carolan were briefed on behalf of the applicant for the trial. While in the reserve list, discussions took place between the applicant, Mr Lynch and Mr Carolan. In these discussions and others that followed at the next listing, Mr Carolan took detailed notes. Those notes were tendered.[3] The notes from the August trial listing relate to conferences on 26 and 27 August 2019 while the trial remained in the reserve list.
[3] Exhibit R2 – Notes of 26 and 27 August 2019.
While Mr Lynch did not have an accurate recollection of all conversations, he confirmed that Mr Carolan was present at the conferences and took the notes. On the matters that were put directly to him from the notes, he accepted their accuracy. It should also be stated that Ms Karapanagiotidis, who appeared on behalf of the applicant, did not take issue with the accuracy of the notes.
In summary, Mr Lynch gave evidence that he took the applicant through the evidence and discussed the strengths and weakness of the case. He said that he discussed with the applicant the concept of tendency and how it would be sought to be used by the prosecution. Mr Lynch stated a number of times words to the effect of ‘you need to understand the ambit of the case’ and ‘you need to understand the risks’. Mr Lynch took the applicant through each count on the indictment pointing out what, in his view, the difficulties were. He also pointed out that if the allegations in relation to all of the complainants were heard together, it would prejudice his case.
Mr Lynch stated in evidence that he explained the effect of tendency evidence if it were admitted and was satisfied that the applicant understood the use the prosecution was seeing to make of the tendency evidence.
As part of the topics discussed during the conferences, Mr Lynch discussed the benefits of pleading guilty and the possibility of negotiating a settlement with the prosecution that would see many of the charges withdrawn and some possibility rolled up. Mr Lynch said that he explained to the applicant the meaning of rolled up charges. Towards the end of the notes of 26 August 2019, a draft proposed resolution is recorded which was taken to the prosecution.
On 27 August 2019, the conferences continued as the trial remained in the reserve list. It was conveyed to the applicant that the offer put to the prosecution was rejected. The applicant maintained that he did not commit the alleged conduct and emphasised that there was never any penetration as alleged in some of the charges that were part of the plea offer. Again, there was further discussion as to the risks of running a trial and the fact that the applicant would receive a longer gaol term if found guilty following a trial. The conference notes conclude by recording that the applicant ‘wants to go through with the trial and plead not guilty’.
The next set of notes record conferences that occurred with the applicant at the trial listing on 29 January 2020.[4] Again the trial was in the reserve list and the notes record conferences that occurred on 29 and 30 January 2020. Mr Lynch and Mr Carolan were both briefed for the trial.
[4] Exhibit R3 – Notes of 29 and 30 January 2020.
The notes record that Mr Lynch again pointed out the difficulties the applicant faced including the number of complainants and issues in relation to photographs that the applicant had sent to one of the complainants. Mr Lynch again advised the applicant of the type of sentence he may face if convicted as opposed to the type of sentence he could receive on a negotiated plea which would not include the most serious charge of incest.
Throughout these discussions the notes record that the applicant maintained that he was not guilty. At one point he asked rhetorically ‘are you saying I’m going to gaol either way?’ Mr Lynch responded that he would not go to gaol if he was acquitted entirely, however many of the offences would carry gaol if found guilty.
A conversation then followed which was focused on community sentiment with references to the Royal Commission into Institutional Responses to Child Sexual Abuse and the general focus in the media concerning sexual abuse of young people by people in authority. The notes also record a comment by Mr Lynch that the jury would be thinking ‘why would the girls lie?’.
Mr Lynch stated in evidence that he conveyed to the applicant that in all likelihood he would lose if he ran the trial.
It seems that the notes then indicate that the prosecution put a further offer that included some rolled up counts. The concept of rolled up counts was then discussed with the applicant. There was then further discussion concerning the process of a plea if the prosecution were to proceed on the four charges only and the issue of bail following arraignment was discussed.
Mr Carolan then drafted a two page document which is dated 29 January 2020 that the applicant initialled on the first page and signed on the second.[5] The document detailed the four charges that would appear on a plea indictment and that the other charges would be withdrawn. The document then states:
To be clear, Mr Harris will plead guilty to Charge 1 as a rolled up count, Charge 6 as an indecent act with a child under 16, Charge 7 and Charge 16 as a rolled up count to include the incident described in Charge 17.
[5] Exhibit R4.
On 30 January 2020, the parties returned to court. The notes reflect that the ‘amended document’ being the indictment, was gone through line by line with the applicant as was the criminal history and the prosecution opening. There were also further discussions concerning bail.
In evidence, Mr Lynch stated that when the applicant returned to court on 30 January 2020 after having signed the document the previous day, he did not raise any objection to continuing on with the process of pleading guilty nor did he raise any concerns.

David Carolan

Mr Carolan gave evidence and confirmed that he had been present at all conferences with the applicant in August 2019 and January 2020 but for the first conference on 30 January 2020 when he arrived shortly after the conference had commenced.
Mr Carolan essentially corroborated the evidence of Mr Lynch which was, as noted above, largely confirmative of the detailed notes taken by Mr Carolan during the various conferences with the applicant.
Mr Carolan confirmed in evidence that he too conveyed to the applicant that in all likelihood he would lose at trial.

Cody Harris

The applicant, Cody Harris gave evidence and confirmed that his affidavit,[6] while not previously sworn, was true and correct. In his affidavit the applicant’s chronology of events largely accords with the chronology as detailed in the notes taken by Mr Carolan.
[6] Exhibit A1.
In relation to the August trial listing, the applicant states that Mr Lynch spoke with him on the ‘last day’ about pleading guilty. He states that he told Mr Lynch that he was innocent.
In relation to the January trial listing, the applicant states that Mr Lynch and Mr Carolan said that they had been having discussions with the prosecution and that there was a good plea deal on offer. He states that it was Mr Lynch who did most of the talking and said that because of the tendency evidence, the jury would find him guilty and he will get more gaol time. He recalls raising some specific issues in relation to the evidence but states that Mr Lynch ‘seemed to have an answer for everything I was putting up, like he was on their side.’
The applicant stated that he felt that the way the barristers were advising him, he didn’t have a choice but to plead guilty. In evidence he said that he didn’t consider himself to be guilty but also stated that he thought that his barristers were ‘doing the right thing by me’.
Under cross-examination the applicant said that he understood the charges he was pleading guilty to and understood that others would be withdrawn. He said he understood he was admitting to doing the acts described in the charges. He did not accept however that he agreed to negotiate and confirmed that at no time has he admitted that he had committed any of the acts described.

Further evidence

On behalf of the applicant two reports were tendered that were prepared by Anna McLaren, clinical neuropsychologist. The first report dated 24 May 2020[7] was prepared following the arraignment for the purposes of the plea. As a result of the content of that report the change of plea proceedings were initiated. Ms McLaren reports on an acquired brain injury suffered by the applicant as a result of a brain aneurism in 2012.
[7] Exhibit A3.
The second report dated 5 October 2020[8] was prepared specifically for the purposes of addressing the acquired brain injury and if it had any bearing on the applicant’s understanding of the discussions leading up to the agreement to plead guilty.
[8] Exhibit A4.
In short summary, the second report states that despite the deficits suffered as a result of the acquired brain injury, Ms McLaren’s opinion was as follows:
He showed an understanding of the options put to him leading up to his plea, and the ramifications of choosing each option, which would be expected given his main difficulty is with complex or abstract information, neither of which would be considered to apply to the information needed for him to make his decision.
Ms Karapanagiotidis accepted this assessment however submitted that his acquired brain injury and the contents of Ms McLaren’s report should be taken into account generally when assessing the evidence of the applicant as his condition may have had some influence on his perception and interpretation of what he was being told by his barristers. It should be noted that in the applicant’s affidavit while he states that his memory is ‘pretty good now’, he sometimes has difficulty concentrating which has caused him to make quick decisions in the past.

Legal principles

The primary consideration in deciding whether to permit the withdrawal of a guilty plea is whether there would be a miscarriage of justice if the applicant were held to their plea.[9] The applicant bears the onus of establishing that a miscarriage of justice would arise if the change of plea were not allowed.[10] Applications to change to a ‘not guilty’ plea are to be approached with caution and leave will only be granted in rare and exceptional circumstances.[11]
[9] R v Middap (1989) 43 A Crim R 362, 364; Weston (a pseudonym) v The Queen, [109], per Redlich JA.
[10] Weston (a pseudonym) v The Queen, [109].
[11] R v Sivov [2008] VSCA 100, [31].
The applicant is required to demonstrate that the plea was not a result of a genuine awareness of guilt and that some circumstances affected the integrity of the plea.[12] The integrity of a guilty plea lies in the status of a plea of guilty as an admission of all of the ingredients of the offence.[13] The public interest in the finality of proceedings, and in upholding a negotiated plea from which the accused has benefited, is powerful.[14]
[12]Maxwell v R (1996) 184 CLR 501, 511 per Dawson and McHugh JJ; Weston (a pseudonym) v The Queen, [108].
[13]R v Liberti (1991) 55 A Crim R 120, 122 per Kirby P; Weston (a pseudonym) v The Queen, [109];
[14]R v Liberti, 122 per Kirby P; R v Holden [2009] VSCA 254, [69] per Neave JA; Weston (a pseudonym) v The Queen [88].
It is common to enquire into the circumstances in which the applicant came to enter a guilty plea, and whether any circumstances exist affecting the integrity of the plea.[15] It is not necessarily an inquiry into the guilt or innocence of the accused, except insofar as evidence that creates doubt as to the accused’s guilt, and as to the accused’s perception of their guilt, goes toward a conclusion that the guilty plea was not attributable to a genuine consciousness of guilt.[16]
[15]Khamis v R [2014] NSWCCA 152, [59], per Hoeben CJ with whom McCallum and Garling JJ agreed; Weston (a pseudonym) v The Queen [92], [96].
[16]Weston (a pseudonym) v The Queen [96].
Where an admission of guilt was freely made, the fact that there may be a technical advantage afforded to the applicant in pleading guilty does not, of itself, affect the integrity of the plea. A person may plead guilty for a range of reasons and on ‘grounds that extend beyond that person’s belief in his guilt’.[17] This is unless it can be shown that in entering a guilty plea, the accused did not intend to accept guilt for an offence of which he or she believed himself or herself to be guilty.[18]
[17]Meissner v R (1995) 184 CLR 132, 157, per Dawson J.
[18]Kumar v The Queen [2014] VSCA 102, [16]; Weston (a pseudonym) v The Queen, [109].
The applicant’s subjective belief in their innocence is a relevant factor, but it is not determinative of the application.[19] An applicant's subjective belief in innocence may bear upon the question whether the guilty plea was not a true admission of guilt,[20] and this is a narrower inquiry than that of consciousness of guilt.[21]
[19]Jamieson v The Queen [2017] VSCA 140.
[20]Jamieson v The Queen, [44], [101].
[21] Ibid, [101].
The applicable legal principles in relation to change of plea applications were restated in Weston (a Pseudonym) v The Queen,[22] and summarised by Redlich JA:
1.     The basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.
2.     The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings.
3.     To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the Applicant were to be held to his plea.
4.     The Applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage.
5.     To impugn the integrity of the plea, whether before or after conviction, the Applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the Applicant to his plea. Some of the more common examples cited that may justify the conclusion that the Applicant should not be held to his plea are that the Applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.
6.     It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.
7.     A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution.
[22][2015] VSCA 354.

The following principles listed by Redlich JA in Weston concern the integrity of a plea challenged before conviction and sentence:
8. Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar. Where the Applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea.
9 Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the Applicant to change his plea before conviction and sentence if the Applicant establish that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.[23]
[23] Ibid.
Principles 8 and 9 are to the advantage of an accused, however have been the subject of some controversy. In a separate judgment, Whelan and Kaye JJA noted their reservations as to the literal correctness of the propositions stated by the Court of Appeal in Kumar:
Insofar as those paragraphs might be read suggesting that a judge must consider whether an applicant is ‘truly guilty’ and whether he ‘believed’ himself to be guilty, that would seem to be inconsistent with a number of the authorities referred to by Redlich JA including Sagiv, Cincotta, Gadaloff, Brooks (adopting Pugh), Stuart, Wong, Woods, Holden and Rotner, and with the High Court’s dicta in Meissner (although not directly applicable to these applications), even if what was said was confined to applications before conviction. Those propositions, on analysis, might also be found to constitute an unwarranted addition to, or qualification upon, the applicable test which is simply whether a miscarriage of justice would occur if a guilty plea was not permitted to be withdrawn.[24]
[24]Western at [128].
In the more recent case of Jamieson v The Queen[25] the Court of Appeal expressed approval in relation to the comments of Whelan and Kaye JJA in Weston concerning the propositions as stated in Kumar:
In our view, neither Kumar nor Weston is to be understood, in respect of a change of plea application made before conviction, as going beyond this: that evidence of an accused’s subjective belief in innocence is capable of bearing upon the question whether a plea of guilty was tainted as not being a true admission; and, where the plea is shown to have been made with a view of obtaining a technical advantage, this may be relevant to a judge’s exercise of discretion on a change of plea application. That approach accords with logic. Of course, consciousness of guilt in the present connection involves a broader enquiry than as to subjective belief in innocence. If it was otherwise, a person pleading guilty though continuing to protest belief in innocence would inevitably succeed on a change of plea application made before conviction; and, consistently with principle, that is not what happens.[26]

Discussion

[25] [2017] VSCA 140.

[26] Ibid at [101].

Ms Karapanagiotidis and Mr Guesdon, who appeared on behalf of the Director of Public Prosecutions, provided written submissions and both properly summarised the applicable legal principles. Ms Guesdon submitted that the evidence does not suggest that the applicant did not understand or appreciate the nature of the charges he was pleading guilty to. Further, that his plea was not induced by threats or fraud.
Ms Guesdon also submits that the applicant had time overnight from 29 to 30 January to reconsider the plea of guilty before arraignment took place but did not seek to change his mind. It was also submitted that it was not until some five months after he entered his guilty plea, that he advised that he wished to change his plea.
Ms Karapanagiotidis submitted that in all the circumstances the applicant’s pleas of guilty did not amount to a genuine acceptance of guilt or was not attributable to a consciousness of guilt.
In addition to her written submissions, Ms Karapanagiotidis briefly outlined what would be raised in defence at trial in relation to each complainant submitting that while the case had its difficulties, there are a number of arguable issues to be raised in the applicant’s defence.
What is not in dispute is the fact that the applicant has not, at any time, said he committed any act that forms the basis of the charges on the original trial indictments or the plea indictment. Indeed, this instruction is repeated throughout the notes taken of the conferences during the two trial listings.
What is also clear is that the discussions between the applicant and his barristers primarily focused on the weaknesses of the case with the ultimate advice being that the matter should be negotiated, which would result in a better outcome on the charges, and a lesser sentence. While there is no suggestion that Mr Lynch or Mr Carolan acted improperly, the message that was conveyed to the applicant was that he would inevitably be found guilty. That said, there is one aspect of the notes that reflect what would be impermissible reasoning for a jury, where the discussion focusses around community sentiment at the time and the suggestion that the jury would ask ‘why would the girls lie’. While this is perhaps a realistic human analysis, at no time did the barristers convey to the applicant that a jury would be given strong warnings concerning this type of reasoning and that sympathy or bias have no part to play in their decision.
Following the consistent advice from his barristers, the applicant ultimately formed the view that he had no choice but to plead guilty, which is reflected in his affidavit, the notes of the conferences and confirmed by the applicant in evidence. In re-examination, he reiterated that based on what Mr Lynch said to him he didn’t think he had a chance of being found not guilty.
Having seen the applicant and considered his evidence, in my view he impressed as someone who trusted the advice of his barristers, while at the same time felt overwhelmed and that he simply could not challenge the evidence in any meaningful way.
Despite not giving instructions to negotiate and not admitting any misconduct, the applicant agreed to plead guilty based on the advice of his barristers while still maintaining a subjective belief in his innocence. As noted in Jamieson, such a subjective belief may bear upon the question whether the guilty plea was not a true admission of guilt.[27]
[27]Jamieson v The Queen [2017] VSCA 140 at [44], [101].
However, as was also noted in Jamieson, while the applicant’s subjective belief in innocence is able to be considered on the question of whether the plea was not a true admission, it must also be considered together with the fact that a plea has been made to obtain a technical advantage. In the circumstances presented here, the applicant clearly pleaded guilty for a technical advantage, that is, that he would plead to less serious charges and receive a lesser sentence.
In all the circumstances it is clear that that on the advice of his lawyers the applicant formed the view that he had no choice but to plead guilty in circumstances where he maintained and articulated on a number of occasions, that he is not guilty. Further, in my view having considered all of the evidence, the persistent advice from two barristers that the applicant would not win and that he should negotiate a plea, was clearly overwhelming for the applicant. In forming that view however, I do not find that the barristers acted improperly in any way, rather that their advice in the context in which it was given, including considerations of the applicants subjective circumstances, put the applicant in a difficult position.
I am satisfied that the applicant did not believe himself to be guilty at the time of entering the plea. Further, the applicant has raised a number of issues in relation to each complainant that in my view are proper matters that he is entitled to raise at a trial.
Having considered the evidence and the relevant principles, in my view the applicant has established that when he entered his plea of guilty it was not a result of a genuine awareness of guilt. Further, the circumstances demonstrate that his guilty plea was not attributable to a genuine consciousness of guilt. As such, in my view, in all the circumstances, a miscarriage of justice would arise if the change of plea were not allowed.
The order of the court is that the applicant will be permitted to charge his plea to a plea of not guilty.

[2020] VCC 2018

10 December 2020