R v Brooks

Case [2007] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROOKS

[2007] SASC 35

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)

14 February 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - GENERALLY

Appeal against the decision of a trial judge refusing an application to withdraw a plea of guilty – appellant charged with murder – the prosecution alleged the appellant, acting in concert, subdued and burnt her former husband with petrol in the car park of a hotel - on the fifth day of trial the appellant changed her plea to guilty – appellant later dismissed counsel and made an application to withdraw her guilty plea – the application was refused and the appellant was convicted – whether the circumstances in which the appellant made her plea of guilty gives rise to a miscarriage of justice – the appellant understood the factual and legal basis upon which she pleaded and was not confused or mistaken in the relevant sense or to the required degree – no miscarriage made out – appeal dismissed.

R v Pugh (2005) 158 A Crim R 302; R v Brooks and Childs [2006] SASC 247; R v Wilkes (2001) 122 A Crim R 310; R v Hura (2001) 121 A Crim R 472; R v Boag (1994) 73 A Crim R 35; R v Murphy [1965] VR 187; R v KCH (2001) 124 A Crim R 233; Meissner v The Queen (1995) 184 CLR 132; McAuliffe v The Queen (1995) 183 CLR 108, discussed.

R v BROOKS
[2007] SASC 35

Court of Criminal Appeal:   Doyle CJ, Debelle and White JJ

  1. DOYLE CJ:          Ms Brooks and Mr Childs were tried before a judge and jury on a charge of murder.  On the fifth day of the trial Ms Brooks indicated that she wished to change her plea.  She was re-arraigned and pleaded guilty.  The jury found her guilty as directed by the Judge.  The trial proceeded against Mr Childs.  He was found guilty by the jury.

  2. A few days after the plea of guilty Ms O’Connor, who had not previously appeared in the trial, appeared for Ms Brooks.  She told the Judge that Ms Brooks had filed an application to withdraw her plea of guilty.  The allocutus had already been administered, and the Judge had imposed the mandatory life sentence, but had adjourned to a day to be fixed the hearing of submissions relevant to the fixing of a non-parole period.

  3. The Judge heard the application by Ms Brooks and refused it.  The trial of the charge against Mr Childs then proceeded.

  4. Ms Brooks has now appealed against her conviction.  She was granted leave to appeal by a single judge.  The case was argued on the basis that there has been a miscarriage of justice.

  5. The issue on appeal is whether the…

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R v Brooks [2007] SASC 35
Case
[2007] SASC 35
Decision Date

CaseChat Overview and Summary

The case of R v Brooks involves an appeal against a decision of a trial judge, who refused an application to withdraw a plea of guilty. The appellant, Ms Brooks, was charged with murder and was alleged to have acted in concert with another person to subdue and burn her former husband with petrol in a hotel car park. During the trial, Ms Brooks changed her plea to guilty on the fifth day. However, she later dismissed her counsel and sought to withdraw her guilty plea, which was refused by the trial judge. Consequently, Ms Brooks was convicted. The appeal focused on whether the circumstances under which Ms Brooks made her plea of guilty led to a miscarriage of justice.

The primary legal issue the court had to address was whether the appellant's understanding of the factual and legal basis for her plea of guilty was sufficient and whether there was any confusion or mistake to the required degree that could justify allowing her to withdraw the plea. The court also considered whether the refusal to allow the withdrawal of the plea resulted in a miscarriage of justice. The court examined whether there was any evidence indicating that Ms Brooks was mistaken or misapprehended the nature of her plea and if her plea of guilty was made knowingly and voluntarily.

The court concluded that Ms Brooks understood the factual and legal basis of her plea and was not confused or mistaken to the required degree. The evidence presented indicated that Ms Brooks was well aware of what she was doing and why she was pleading guilty. The court found no evidence of mistake or misapprehension on her part. Furthermore, the court noted that Ms Brooks' own version of events justified her plea and indicated her consciousness of guilt. The court held that the trial judge's refusal to allow the withdrawal of the plea did not result in a miscarriage of justice, as the plea was made knowingly and voluntarily, and there was no factual basis upon which a verdict of not guilty might be returned. The appeal was therefore dismissed.

In conclusion, the court found that the appellant's plea of guilty was valid and that there was no miscarriage of justice in refusing her application to withdraw the plea. The court emphasised that the circumstances of the plea of guilty did not impugn the plea itself and that the refusal to allow the withdrawal of the plea was justified under the given circumstances. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Judge added that having regard to her evidence that she participated in a joint enterprise to assault Mr Andersen, and to the fact that she contemplated that Mr Childs might go further and kill Mr Andersen, and because on the Judge’s finding that there was “no suggestion that she ever withdrew from that arrangement”, her own evidence provided a basis upon which the jury could have found her guilty on the basis of “extended joint enterprise”: [75]. He concluded at [76]:Given the onus resting on the applicant, the cautious approach which must be taken to applications of this nature, the lack of any evidence of mistake or misapprehension on the part of the applicant, my conclusion that she well knew what she was doing and why, and that her own version of what occurred justified the plea and was further evidence of her consciousness of guilt, I could not conclude that there would be any miscarriage of justice if she were not permitted to withdraw her plea.Evidence on appeal On appeal Ms O’Connor submitted that the Judge should not have drawn the inference that he drew from Ms Brooks’ failure to waive privilege in respect of all of the advice given by Mr Kelly to her. She submitted that the limitation on the waiver of privilege did not prevent Mr Hinton from exploring fully the reason for the change of plea. She told the Court that Ms Brooks now waived legal professional privilege in respect of all advice given by Mr Kelly to her, and that Ms Brooks was available for further questioning. In the interests of justice the Court permitted Ms Brooks to give further evidence on the basis of a complete waiver of privilege. The Court permitted Mr Kelly to give further evidence also. I repeat that the appeal proceeded on the basis that Ms O’Connor relied on the evidence before the trial Judge, supplemented by the further evidence put before the Court on appeal. The evidence from Ms Brooks as to the circumstances of her plea of guilty was substantially the same as before the trial Judge. Ms Brooks acknowledged that Mr Kelly advised her on more than one occasion that the evidence against her was strong or overwhelming. She agreed she thought that she would be found guilty. She admitted that several times. She agreed that another factor in her plea of guilty was her hope of a reduction in the non-parole period. She accepted that, when she pleaded guilty, nothing about the case had changed. The evidence had been as expected. But the evidence was about to focus on her movements, with Mr Walters due to give evidence on the afternoon on which she changed her plea. What she feared was now about to become a reality, that is to say, the giving of very damaging evidence by Mr Walters. She agreed that she had understood that, at the time she pleaded guilty, the prosecution case was that she and Mr Childs had acted as a team, intending to kill Mr Andersen or to cause him serious bodily harm. She agreed that Mr Kelly did not suggest to her that merely driving Mr Childs to the car park, or being present when Mr Andersen was set on fire, was enough to make her guilty. She said that later she was advised by Ms O’Connor that if her version of events was a reasonable possibility (this appears to be the version outlined in her affidavit) she might have a defence to the charge.

Decision

Reasons for decision

It is neither necessary nor appropriate to decide whether the suggested line of defence that Ms Brooks now invokes would succeed. This court cannot try the facts, as I have already said. A court considering an appeal from a plea of guilty will rarely be in a position to reach a firm conclusion about the issue of guilt. My tentative view is that the question of whether there is or is not a real question about Ms Brooks’ guilt, or a triable issue as to her guilt, would arise only if the court was satisfied that the circumstances of the plea of guilty were capable of giving rise to a miscarriage of justice. In that situation the court probably would not set aside the conviction if it was satisfied (without itself trying the case) that there could be no doubt about guilt. And to set aside the conviction it may be that the court would need to be satisfied that there was a factual basis upon which a verdict of not guilty might be returned. But in the light of my findings that matter also can be left for another day.Conclusion I can find no basis in the existing case law for a conclusion that to allow the plea of guilty to stand will give rise to a miscarriage of justice. There is nothing to impugn the plea of guilty. This is nothing more than a case of an accused person who has pleaded guilty, but on reflection has realised that there is a possible view of the facts on which a jury might acquit. But that cannot detract from the effect of the admission of guilt, having regard to the circumstances under which that admission was made. I would dismiss the appeal. DEBELLE J: I agree with the substance of the reasons of the Chief Justice which I have seen in draft. I agree that this appeal should be dismissed. The ground on which Ms Brooks asserts that she has a reasonable possibility of being acquitted is that she was not aware that Mr Childs intended to wound or assault Mr Andersen. She contended that the jury might conclude that it was a reasonable possibility that she did not contemplate that it was possible that Childs might form the intention to kill or to cause grievous bodily harm to Andersen: McAuliffe v The Queen (1995) 183 CLR 108. That contention must be weighed against the evidence of Ms Brooks’ movements before she and Childs reached the car park of the Marion Hotel and against her own evidence on her application to change her plea. In his summary of the prosecution case, the Chief Justice has mentioned the evidence of Mr Walters which was very damning. There was also very compelling evidence pointing to the conclusion that Ms Brooks contemplated that it was possible that Childs intended to kill Andersen or to cause him grievous bodily harm. Ms Brooks admitted that she had made a telephone call to Andersen about 12.56 am on the morning of the murder. In that telephone conversation she asked Andersen to meet her in the car park of the Marion Hotel and Andersen agreed to do so. Childs was with her when she made that call. The call was made from Childs’ home at Salisbury North. Ms Brooks admitted that at 1.07 am she and Childs were on their way to the Marion Hotel. It is quite a considerable distance from Salisbury North to Marion.

Ratio Decidendi

Legal Principle Established

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