R v Brooks - [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

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.
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.
The Judge heard the application by Ms Brooks and refused it. The trial of the charge against Mr Childs then proceeded.
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.
The issue on appeal is whether the circumstances in which Ms Brooks made her plea of guilty will give rise to a miscarriage of justice if the conviction was permitted to stand.
The principles relevant to an appeal of this kind have been dealt with in a number of cases. The ultimate question is whether there has been a miscarriage of justice: see R v Pugh [2005] SASC 427; (2005) 158 A Crim R 302 at [32]-[33] Doyle CJ.
It is necessary for me to outline the background to the plea of guilty, and the circumstances in which it was made, before I consider the application of the relevant legal principles to the facts.
The prosecution case
Shortly before 2.00 am on 26 January 2005, in the car park of the Marion Hotel in suburban Adelaide, Mr Andersen was doused in petrol and set alight. Mr Andersen suffered severe burns, and died in hospital at about 5.00 am.
The prosecution case was that Mr Childs and Ms Brooks, acting together, killed Mr Andersen. The prosecution case was that they were both at the car park when Mr Andersen was set on fire.
Until after the trial was under way, Ms Brooks denied that she was present at the car park at the time in question, and that she had anything to do with the crime. From a fairly early stage Mr Childs had admitted being present at the car park with Ms Brooks. However, he denied setting fire to Mr Andersen, and in the evidence that he ultimately gave (after Ms Brooks had pleaded guilty) said that Ms Brooks had set fire to Mr Andersen, and that he (Mr Childs) had had nothing to do with it.
The prosecution case was circumstantial, but was a strong case. The evidence that Ms Brooks was at the car park when Mr Andersen was set alight was particularly strong.
I will summarise the prosecution case as it was opened to the jury. Ms Brooks and Mr Andersen had been in a de facto relationship that had ended in about 1996. They had three children. There had been Family Court proceedings between them. In one way or another there was a good deal of bitterness between the two of them, particularly over the issue of access to the children. There had been a number of disputes over access. There was evidence that Ms Brooks had told people that she hated Mr Andersen, and wanted to kill him.
There was evidence that Mr Childs became friendly with Ms Brooks not long before the events in question.
The prosecution case was going to be that there was evidence of a telephone call from Mr Childs’ house to Mr Andersen at 12.56 am on 25 January 2005, and that in the course of that telephone conversation Ms Brooks arranged to meet Mr Andersen at the hotel car park. There was evidence that at 1.07 am Mr Andersen rang Ms Brooks’ home, but she was not there at the time. There was particularly telling evidence that at 1.20 am Mr Childs purchased $20 worth of petrol from a service station not far from Ms Brooks’ home. He did not have the money to pay, and had filled out a form giving a false name and false vehicle registration number. On the prosecution case Ms Brooks must have been in the car with Mr Childs at the time, and the two of them must have been on their way to the hotel car park. There was evidence that Mr Andersen left his home at about 1.30 am intending to meet Ms Brooks. A man who spoke to Mr Andersen in the hotel car park said that Mr Andersen told him that he was waiting for his ex-wife. There was evidence from some people nearby who saw a car in the hotel car park similar to Ms Brooks’ car, and a man and a woman with another man. An ambulance was called at 2.00 am, indicating that by then Mr Andersen had been set on fire. By then Mr Childs and Ms Brooks had left the scene, assuming they were there at the time. There was evidence that at the hospital Mr Andersen told those treating him, at about 3.00 am, that his wife or ex-wife “did this to me”. That evidence was put forward as a dying declaration, and had been ruled admissible by the trial judge before the jury was empanelled.
There was other circumstantial evidence linking Mr Childs and Ms Brooks to the scene of the crime.
The police spoke to Ms Brooks not long after the events. She denied being at the car park. She said she was at home all night.
The prosecution intended to call Mr Walters, who then lived in the same house as Ms Brooks. He was going to give evidence that that night Ms Brooks left the house at about 1.00 am and drove off with Mr Childs in her car. His evidence was that she had returned at about 3.00 am. He was going to give evidence about the clothes that she wore, and that when she came home she washed the dress that she was wearing. He was expected to say that Ms Brooks had asked him to tell the police she had been home all night. If his evidence was accepted, it destroyed completely Ms Brooks’ alibi.
Mr Childs was also questioned by the police not long after the events. He was found to have significant burns, for which he had not sought treatment from a doctor. At first he claimed to have no memory of the incidents in question. At trial when he came to give evidence, he admitted being there, but in effect said that he was there to protect Ms Brooks in case Mr Andersen assaulted her, and that he had nothing to do with Mr Andersen being set on fire.
As I have said, there was a strong prosecution case that Ms Brooks had a reason to harm Mr Andersen, that Mr Childs had a reason to help her, and that Ms Brooks lured Mr Andersen to the car park. There was strong evidence that Ms Brooks and Mr Childs travelled together to the car park, having purchased petrol on the way there, and that they met Mr Andersen there. The evidence supported the inference that somehow or other, one or other or both of them subdued Mr Andersen, poured petrol on him and set him alight. The evidence, and in particular the evidence of Mr Walters, if accepted, would show that Ms Brooks had lied about her movements and actions on the night in question.
Mr Hinton, counsel for the Director of Public Prosecutions at trial and on appeal, outlined the prosecution case to the jury. He told the jury that the prosecution case was that Ms Brooks and Mr Childs had acted together in luring Mr Andersen to the car park, and in subduing him so that petrol could be thrown on him and he could be set alight. He told the jury that the prosecution case was one of “joint enterprise”, that Mr Childs and Ms Brooks “acted as a team together.” Mr Hinton made this point more than once in opening. He told the jury that if they were satisfied there was a joint enterprise that included killing Mr Andersen or causing him grievous bodily harm, then both of them were guilty of murder, irrespective of which one of them had set Mr Andersen on fire. If the jury was satisfied that Mr Childs and Ms Brooks had acted as a team, and their intention was to kill Mr Andersen or cause him grievous bodily harm, it did not matter which member of the team did what. Both were guilty. Mr Hinton explained the concept of joint enterprise in the course of his opening.
He also told the jury that persons who take part in a joint enterprise were responsible in law not only for crimes “that are part of the understanding or the arrangement”, but for crimes which the participants “contemplate might be committed by any member of the joint enterprise, any member of the team in the course of its execution.” He expanded on that. He told the jury that even if the joint enterprise did not extend to killing Mr Andersen, or to causing him grievous bodily harm, nevertheless if the accused were party to some lesser crime, but one of them “contemplated that it was possible that the other might form an intent to kill or an intent to cause grievous bodily harm”, then if that occurred that one would share responsibility for the murder that ensued.
There could be no doubt about the basis upon which the prosecution put its case.
The plea of guilty
The judge dealt with a number of preliminary applications, before the jury was empanelled. He ruled admissible the evidence of the death bed statement by Mr Andersen that his wife or ex-wife “did this to me.”
The jury was empanelled on the afternoon of Monday 10 July 2005, the accused pleaded not guilty and the evidence began. On Friday 14 July, after the mid-afternoon break, Mr Kelly (counsel at trial for Ms Brooks) told the Judge that Ms Brooks wished to be re-arraigned. She was re-arraigned before the jury and pleaded guilty. The allocutus was not given. The trial was adjourned to Monday 17 July. On that date Mr Kelly told the Judge that his instructions had been terminated, and Ms O’Connor appeared for Ms Brooks. The allocutus was administered on Tuesday 18 July. The Judge imposed the mandatory sentence of life imprisonment, but did not hear submissions on the fixing of a non-parole period. On Wednesday 19 July Ms Brooks filed an application to withdraw her plea of guilty. The Judge heard the application on Thursday 20 July and Friday 21 July 2006, refusing the application on the Friday.
The trial of the charge against Mr Childs then proceeded. He was found guilty.
The application made to the trial Judge
In support of the application for leave to withdraw the plea of guilty, affidavits were filed by Ms Brooks and by Mr Kelly, and each of them gave evidence before the trial Judge. On appeal further affidavits were filed by each of them, and each of them gave evidence again.
Ms O’Connor, with Mr Hinton’s concurrence, invited the Court on appeal to decide the appeal by reference to the material placed before the trial judge in support of the application for leave to withdraw the plea of guilty, and also by reference to the further evidence put before the Court on appeal. Ms O’Connor relied on the evidence put before the court on appeal to support her submission that the single judge misused or misunderstood Ms Brooks’ decision, on the application heard by him, to waive privilege in respect of the advice given to her by Mr Kelly immediately before and after the change of plea, but not to waive privilege in respect of advice given at earlier times. On appeal Ms Brooks made it clear that she waived legal professional privilege generally in relation to the advice that had been given to her. I will return to this point in due course.
The trial Judge made a number of findings on the evidence before him, most of which are not challenged. What follows draws on those findings.
Until Friday 14 July Ms Brooks had instructed Mr Kelly that she was not at the car park on the night in question. At no stage did Ms Brooks tell Mr Kelly that she had been present when Mr Andersen was set on fire.
Apparently Mr Walters was due to give evidence on the afternoon of Friday 14 July. His evidence, if accepted, would demolish Ms Brooks’ alibi. Just before the court resumed after the lunch break, Mr Kelly told Ms Brooks that Mr Walters’ evidence was likely to be very damaging to her defence. Ms Brooks became tearful, and said she wanted to discuss a possible change of plea. Mr Kelly said that he would speak to her at the next break. There was no suggestion by Mr Kelly that she should change her plea. Ms Brooks agreed that while the trial continued to run (the evidence after lunch concerned the case against Mr Childs) she had time to think about her position. She believed that there was an overwhelming case against her, and that she would be found guilty.
Mr Kelly discussed the position with Ms Brooks again at the afternoon break. He told her that Mr Walters was in the court precinct. He had prepared a handwritten document which noted that the evidence against Ms Brooks was “so strong as to be overwhelming”, and recorded that Mr Kelly had advised Ms Brooks that “in the event I have committed this crime” it would be in her best interest to enter a plea of guilty because she would then receive some reduction in the penalty. The document further recorded that if Ms Brooks gave evidence against Mr Childs she could expect “a significant discount in penalty”, as much as between five and seven years. The document concluded:
I instruct that I will plead
Guilty
Not guilty.
There is no suggestion that Mr Kelly advised Ms Brooks to plead guilty. It is clear that the evidence that Ms Brooks was involved in the death of Mr Andersen was in fact overwhelming. Mr Kelly read the document to Ms Brooks. She said she understood it and did not wish to discuss it further. She then struck out the words “not guilty” and signed the document. She told Mr Kelly that she was definite about her decision. That led to the change of plea.
As the Judge found, Mr Kelly did not discuss with Ms Brooks the factual basis upon which her plea of guilty was being entered. He had no instructions from her as to what she said happened in the early hours of the morning in question, in particular prior to and leading up to Mr Andersen being set on fire: R v Brooks and Childs [2006] SASC 247 at [56]-[57].
In an affidavit sworn on 20 July 2006, after the filing of her application, Ms Brooks admits ringing Mr Andersen and arranging to meet him, but says that she did so because Mr Childs had told her to do so. She says that what followed was Mr Childs’ idea. She agreed to driving to the hotel car park with Mr Childs. She thought Mr Childs was going to assault Mr Andersen. When they reached the car park, she got out of the car to warn Mr Andersen, because she was worried that Mr Childs might have more in mind than an assault. She had realised this while driving to the hotel. She said that she did not know that Mr Childs had petrol with him, and was not present when it was purchased. She said that Mr Childs had poured petrol on Mr Andersen and had set him on fire.
As to the change of plea, Ms Brooks said:
5I did this because there seemed to be an overwhelming amount of evidence against me in relation to my being in the car park and I thought that a jury would find me guilty. I did not know or understand that I could be present during the murder of Mr Andersen but not guilty of his murder. Mr Kelly did not discuss this with me at all.
6I did not explain to Mr Kelly at any time what I did that amounted to murder or on what basis I would plead guilty. He did not ask me to.
7I am still unsure about the basis for the guilty plea. I thought that because there was evidence that I was present and that Mr Child’s killed Mr Andersen while I was present and that I drove him to the car park and drove him away; that this would mean I was guilty of murder.
She added that if she had known that on her instructions she had a defence to the charge, she would have maintained her plea of not guilty. The basis of the defence appears to be founded on the following paragraphs of her affidavit:
15I was not party to the killing of Mr Andersen; I did not assist in the killing of Mr Andersen and I had not agreed to drive Mr Childs to the car park for any other offence besides an assault on Mr Andersen. I understand from Ms O’Connor that if this is accepted by the jury then I would be not guilty of murder.
16At the time I entered my plea of guilty to the charge of murder I did not know that my instructions amounts to a defence nor was I advised of this. I had thought that if I drove Mr Childs to the car park to assault Mr Andersen and that Mr Andersen was killed, and I then drove Mr Childs away from the car park, that I would be guilty of murder. If I had known that my instructions about what occurred amounted to a defence in law I would have continued to plead not guilty and explain what had occurred at the car park to the jury.
As I have already said, although Ms Brooks had waived legal professional privilege, she did so only in respect of the advice that she was given immediately prior to and following the change of her plea. She did not waive privilege as to advice given at earlier stages of the matter.
Mr Hinton cross-examined Ms Brooks before the trial Judge. She agreed that she knew that she was pleading guilty to killing someone deliberately. She said she understood that the prosecution case was that she and Mr Childs were working together, working as a team. She understood that was the basis upon which the Crown alleged she was guilty of murder. Mr Hinton cross-examined her about what she thought was going to happen that night. She agreed that she assisted Mr Childs by making the telephone call to Mr Andersen, and by driving Mr Childs to the car park. She agreed that Mr Andersen would not have come to the car park if he did not think she was going to be there. She said that Mr Childs had told her one night that he had “done 17 years for manslaughter”, and while driving to the car park the thought had crossed her mind that he might kill Mr Andersen, “but I didn’t think he would be stupid enough to”. She agreed that she was worried that Mr Childs might kill Mr Andersen. That was why she tried to warn Mr Andersen when she arrived there. However, she never satisfactorily explained why she was unable to warn him before Mr Childs set fire to Mr Andersen.

The Judge found at [70] that Ms Brooks knew that she was pleading guilty to the murder of the deceased, was under no misapprehension as to what she was doing in pleading guilty, and that she did so out of a genuine consciousness of guilt.
The Judge referred to the failure to waive privilege in respect of earlier advice. He said at [72]:
… In those circumstances I consider that that failure can properly be taken into account in deciding whether to accept the inference to be drawn from the applicant’s sworn evidence that she understood the full import and effect of pleading guilty in the circumstances which confronted her. While it is not necessary to rely on that failure in this case, it does give added weight to the view I have formed.
The Judge found there was no evidence of erroneous advice to Ms Brooks, nor of any improper pressure or inducement on her. There was no evidence of any mistake affecting the integrity of the plea, and no evidence that the plea was made with other than full knowledge of all the facts: at [73].
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.
She again acknowledged that, while driving to the hotel car park, she had thought that Mr Childs might kill Mr Andersen. She continued to deny being present when Mr Childs bought the petrol. She admitted having told numerous lies to the police and to Mr Kelly.
Mr Kelly gave more detailed evidence than before the trial Judge. I accept him as a truthful and reliable witness.
He confirmed that right up until Ms Brooks pleaded guilty, she had maintained that she was not with Mr Childs at the car park. He denied that Ms Brooks raised with him the possibility of a plea of guilty to a lesser charge. Her evidence about this was vague and I do not accept it. On her instructions there was no basis for any such discussion, nor for such a plea.
He said that he had advised Ms Brooks quite early about how she could be guilty on the basis of a joint enterprise, and how the concept of a joint enterprise applied to the facts of the case. He said he was likely to have revisited that topic with her on more than one occasion, although he could not say just when this was. I accept that evidence.
He said that he had not canvassed with her the question of her intention or state of mind as events unfolded on the night in question, because in light of her instructions there was no reason or basis for doing so.
He said that the prosecution opening accorded with what he had canvassed with Ms Brooks about the case, and about the principle of joint enterprise in particular. He said he had told Ms Brooks that to obtain a conviction on the basis of a joint enterprise the prosecution would have to show more than that she accompanied Mr Childs, and would have to show at least that she had contemplated the infliction of really serious harm on Mr Andersen.
He agreed that he did not discuss with Ms Brooks the factual basis of her plea. He thought she had understood what she was doing. He thought she was pleading guilty on the basis of the discussions he had had with her about the basis and strength of the prosecution case. There was some pressure to make a decision promptly because a plea of guilty after Mr Walters gave evidence might have meant a lesser reduction in the non-parole period, because he expected the evidence to be so damaging.
He said that he had told Ms Brooks quite early in the piece, and on several occasions, that the prosecution case was a very strong one.
Findings of fact
I find that before the trial began Mr Kelly had advised Ms Brooks that the prosecution case was based on the concept of joint enterprise, on which basis she might be found guilty even if it was Mr Childs who set fire to Mr Andersen, provided that she was party to a plan to kill Mr Andersen or cause him serious bodily harm, or party to a plan to do him some lesser harm, she realising that Mr Childs might be planning to go further and to kill Mr Andersen intending to do so, and that in fact happening. I find that this advice was given more than once.
I find that Ms Brooks knew and understood that her prospects at trial were bleak. I find that she understood this, and understood the nature of the prosecution case against her, although she would not have understood the details. In particular, I accept that Ms Brooks understood the general idea of liability on the basis of a joint enterprise or common purpose, although she might not have understood all of the detail of the advice about joint enterprise.
I find that, on the Friday on which she pleaded guilty, Ms Brooks realised that very damaging evidence was about to be given by Mr Walters. Knowing that she was likely to be found guilty, she lost heart. She was attracted to securing a reduction in the non-parole period as a result of a plea of guilty.
I find that Mr Kelly applied no pressure or persuasion to Ms Brooks to change her plea. None was suggested.
I find that Ms Brooks had never been advised that she would be found guilty merely because she drove Mr Childs to the car park, or merely because she was present when he set fire to Mr Andersen.
I find that Mr Kelly did not ascertain from Ms Brooks the factual basis upon which she was pleading guilty. The reason for this was that in the circumstances her plea of guilty appeared to be an acknowledgement of the fact that she was almost certainly going to be found guilty. Mr Kelly did not give Ms Brooks any advice that was incorrect.
I find, and it is not disputed, that Ms Brooks understood what she was doing in pleading guilty to murder, and understood that she was admitting her guilt. I find that she pleaded guilty because she believed it was likely that she would be found guilty, and because by pleading guilty she could salvage something from the situation. She made a choice to plead guilty acting in her own interests.
Ms Brooks never raised with Mr Kelly the factual basis upon which she now relies as a basis upon which she might be found not guilty.
I find that, when she consulted Ms O’Connor a few days later, she was advised, quite properly, that if the jury accepted as a reasonable possibility the version of events to which she deposed in her affidavit, there was a possibility that she might not be convicted.
It is not necessary to decide whether that version of events would be accepted by a jury as a reasonable possibility. But it is appropriate to say that the prospects of this version of events resulting in an acquittal were slender. The prosecution case in support of a plan by Mr Childs and Ms Brooks to kill Mr Andersen or cause him grievous bodily harm was a very strong one. The version of events upon which she now relies faces a number of substantial difficulties. The evidence suggesting she was with Mr Childs when he bought the petrol is very damaging. Her evidence that she realised that Mr Childs might kill Mr Andersen is a particular problem, because on the evidence she gave to the trial Judge and on appeal, there is no real basis for saying that she ever withdrew from whatever arrangement she and Mr Childs had reached.
In essence this is a case in which Ms Brooks pleaded guilty, knowing the case against her, and realising that it was likely that she would be convicted. Her plea of guilty was influenced by the hope of gaining a reduction in her non-parole period from a plea of guilty. Later, with the benefit of further legal advice, she realised that on one version of the facts, a version she had not previously put forward or raised, there was a possibility that she might be found not guilty. She had not previously been advised on that version of the facts, but nor had she sought advice on it or raised it with counsel at trial. There was no reason for anyone to think that her plea of guilty was entered on this basis.
Reduced to its essentials, Ms Brooks confronted with a powerful prosecution case, pleaded guilty but has subsequently realised that there is a version of the facts which, if accepted by the jury as a reasonable possibility, might have meant that she would not be found guilty. But the fact remains that she pleaded guilty, knowing what she was doing.
Has there been a miscarriage of justice?
I adhere to what I said on this topic in R v Pugh at [32]-[33] and at [35]-[40]:
The Court's power to intervene
[32] The powers of the Court are found in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The relevant part of that provision is the power of the Court to allow the appeal if there has been a miscarriage of justice.
[33] Early case law, reflecting a formalistic approach, is reflected in the following often cited passage from R v Forde [1923] 2 KB 400 at 403:
“A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged.” (footnotes omitted)
Later cases emphasise that the issue is whether there has been a miscarriage of justice, and while the principles stated in Forde will cover many cases, those principles are not to be substituted for the statutory jurisdiction: see R v Murphy [1965] VR 187 at 188 Herring CJ and Adam J, at 190 Sholl J; Meissner at 141-142; 313-314 Brennan, Toohey, McHugh JJ and at 157; 327 Dawson J.
…
[35] There are four matters of particular relevance to this case that need to be borne in mind.
[36]The first is that a plea of guilty is an admission by the accused of all of the elements of the offence: Maxwell at 510; 185-186, Dawson and McHugh JJ.
[37] The second is contained in the following observations by Brennan, Toohey and McHugh JJ in Meissner at 141; 313:
“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.” (Footnotes omitted.)
See also Deane J at 148-149; 319-320.
[38] The third is contained in the observations made by Dawson J in Meissner at 157; 326-327 that are set out earlier in these reasons. That is, a person may plead guilty, and be held to that plea, although the plea is made "upon grounds that extend beyond that person's belief in his guilt".
[39]The fourth matter is that the passage from Wilkes on which Mr Whitington relies (…) identifies considerations that were considered appropriate to the circumstances of that case, that is, an appeal against a conviction arising from a plea of guilty based on the advice of counsel as to the prospects of successfully defending a charge. But those considerations are not definitive and exhaustive criteria for cases of this kind. In Hura [2001] NSWCAA 461; (2001) 121 A Crim R 472 at [33]–[34] Spigelman CJ lists a number of circumstances that have been identified by the Court of Criminal Appeal of New South Wales as providing a basis for the Court to set a conviction aside. They are not limited to the circumstances identified in Wilkes.
[40] I respectfully agree with Hulme J (dissenting) in R v KCH (2001) 124 A Crim R 233 that the ultimate test is whether there has been a miscarriage of justice, and that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside: at [163]. The presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive.
The precise approach to be taken will depend upon the circumstances of the particular case. As I said in Pugh, I do not agree that the decision in R v Wilkes (2001) 122 A Crim R 310 establishes that in every such case the question of whether there has been a miscarriage depends upon whether the advice given was or was not imprudent or inappropriate, whether the plea was or was not attributable to a consciousness of guilt, and whether the material before the Court shows that there is or is not a real question about guilt: Wilkes at [20]-[21]. They may well be relevant issues, but they are not universally applicable tests. On that point I refer to the observations of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32] where his Honour summarised a number of the circumstances upon the basis of which a court has allowed an appeal against conviction not withstanding a plea of guilty. There is no suggestion in that summary that the matters identified in Wilkes are necessarily decisive.
The present case is not one in which Ms Brooks misunderstood the nature of the charge against her; nor is it a case in which she did not understand the basis of the prosecution case against her (although she might not have understood all of the details); it is not a case in which Ms Brooks failed to understand the significance of her plea of guilty; it is not a case involving any inappropriate pressure or inducement to plead guilty; it is not a case in which Ms Brooks has received erroneous or inadequate advice (subject to her complaint about the failure to give her advice on the factual basis of her plea of guilty); it is not a case in which the facts cannot sustain a conviction – to the contrary, the prosecution case is a strong one.
In light of these conclusions, it is difficult to understand how the plea of guilty could give rise to a miscarriage of justice.
As the majority of the High Court emphasised in Meissner, in the passage set out above, a court is entitled to act upon a plea of guilty entered in the exercise of a free choice in the interests of the person entering the plea. In a sense that choice forecloses the issue of innocence or guilt. The same point is emphasised by Dawson J at 157. I am satisfied that Ms Brooks made a free choice to plead guilty, and did so because she thought it was in her interests to do so.
Ms Brooks now relies upon her later realisation, after her plea of guilty, that on one version of the facts it is possible that she might be found not guilty, and her case is further based on the fact that she did not have the benefit of advice on that possible version of the facts before she entered her plea.
My view is that it is not consistent with the approach of Meissner v The Queen (1995) 184 CLR 132 to say that a later realisation by Ms Brooks that there is a possible line of defence gives rise to a miscarriage of justice, having regard to the circumstances surrounding her plea of guilty.
The observations made by Hunt CJ at CL in R v Boag (1994) 73 A Crim R 35 (Court of Criminal Appeal, New South Wales) are relevant. His Honour said at 39:
It is, however, clear that the applicant made a deliberate and fully informed choice to plead guilty at that time because he recognised that he was in fact guilty of inflicting these injuries with the required specific intention. Subsequent advice has led him to change his mind as to the inevitability that he would be found guilty, but I am not satisfied that it has altered his recognition of his own guilt. A plea is a formal act admitting such guilt. Once that admission has been made (and there are no circumstances indicating that the plea was not really attributable to a genuine consciousness of guilt), tactical advice that – despite his formal admission of guilt – the Crown case may possibly not succeed if the jury takes a particular view of the evidence does not, in my view, lead to a miscarriage of justice if he is held to that plea.
Nor does the fact that she did not have the benefit of advice on the possible line of defence give rise to a miscarriage of justice. At no relevant stage did she identify the factual basis that she now puts forward to Mr Kelly. She did not seek advice. Mr Kelly was entitled to act on the basis that the plea of guilty was an apparent acknowledgement of the inevitable. The advice that he had previously given Ms Brooks about her position was sound. In the context of that advice, her decision to plead guilty was not surprising. Mr Kelly’s advice was appropriate. His failure to explore the basis of the plea of guilty is understandable, when seen in context. I do not accept that the plea was attributable to erroneous or inadequate advice.
To say this is not to deny the potential relevance of the question of whether an accused who pleads guilty has had proper legal advice: see Wilkes at [50]-[51]. However, the adequacy of the advice given to the accused is but one factor to consider in deciding whether or not there has been a miscarriage of justice. The adequacy of the advice given is not, of itself, determinative of the question of whether there has been a miscarriage of justice. For example, in R v Murphy [1965] VR 187 Herring CJ and Adam J accepted that the advice on the basis of which a plea of guilty was entered might have been unduly pessimistic in one respect, and unduly optimistic in another, but still concluded that there was no miscarriage of justice: at 189.

For those reasons I do not accept that the fact that Mr Kelly did not advise Ms Brooks in relation to the factual basis of her plea of guilty gives rise to a miscarriage of justice, either standing alone or in combination with the other circumstances.
The fact that Ms Brooks might not have fully understood the basis upon which the prosecution put its case is neither here nor there. I am satisfied that she understood in a general way the concept of common purpose or joint enterprise. She understood that there was a strong prosecution case, having regard to the law and to the facts. That is a sufficient understanding for present purposes.
The presence or absence of a consciousness of guilt is emphasised in some cases as a significant factor. And so it may be in some cases. But if the court is satisfied, as I am, that the plea of guilty was made in the exercise of a free choice and in Ms Brooks’ interests, Ms Brooks understanding the nature of the case against her and its strength, to consider whether she acted out of a consciousness of guilt is to pursue an irrelevant enquiry. The observations of the High Court in Meissner (above) explain why that will be so in such cases. Moreover, the court cannot try the issue of Ms Brooks’ guilt, and there are difficulties about using the notion of consciousness of guilt because of that: cf Murphy at 188. On this point see also R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 at [90]-[94] Ipp AJA, at [162]-[163] Hulme J.
Were I satisfied that Ms Brooks had pleaded guilty under a significant misapprehension as to the charge or case against her, it might be necessary to consider whether her decision to plead guilty was nevertheless attributable to a consciousness of guilt. But having regard to my findings, it is not necessary to pursue that issue.
In any event, for what it is worth, I find that Ms Brooks’ conduct at the time of her plea of guilty, when considered in its context, indicated a consciousness of guilt. I mean by this that her conduct strongly suggests that she knew she was guilty, and would be found guilty.
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.
There was also objective evidence (including a videotape) that at 1.23 am Childs purchased a jerry can of petrol from a Caltex service station at Waterloo Corner. In her evidence to this Court Ms Brooks denied knowing that Childs had purchased petrol. However, given her admission that at 1.07 am she and Childs were on their way to the Marion Hotel, the purchase of that petrol could only have occurred in the course of the journey from Salisbury North to the Marion Hotel. Ms Brooks was driving the car. She must have seen Childs bring the petrol to the car, if not also seen Childs purchase it.
Ms Brooks said that she knew that Childs was violent. In her evidence she said that she did not trust him and that he had in the past told her that he had served a sentence for manslaughter. Although this evidence was an obvious attempt to distance herself from Childs and his conduct, it assists in providing evidence of her state of mind on this occasion. Ms Brooks also swore affidavits denying any knowledge that Childs intended to kill Andersen or to cause grievous bodily harm. However, her evidence shows that she was aware of the possibility that Childs would intentionally kill or inflict grievous bodily harm. In paragraph 41 of an affidavit sworn on 18 July 2006, Ms Brooks said:
41I had got out of my car to warn Mr Andersen that Mr Childs was about to hurt him. I had not really changed my mind about wanting him assaulted but I was now worried that Mr Childs might have more than a mere assault in mind. It was not based on anything said, it was just my instinct that told me this. I had run from my door to the back of my car with the intention of telling Mr Andersen to leave. I didn’t get the chance. I didn’t even speak to Mr Andersen and he didn’t speak with me.
In her evidence before the trial judge on her application to withdraw her plea of guilty, she was cross-examined on that statement. The following is part of that cross-examination:
QIf we look at VD1D21, at para. 41 on the fourth page, you say again ‘I’d not really changed my mind about wanting him assaulted, but I was now worried Mr Childs might have more than a mere assault on his mind’.
AThat’s correct.
QYou were worried he might kill him?
AYes.
QThat was something that was on your mind as you were driving down there?
AYes, it was. That is why I tried to warn Robert when I got there.
QTried to warn him?
AYes.
In addition, she had earlier given evidence that, while driving to the car park, the thought had crossed her mind that Childs might kill Andersen. This is a brief summary of the relevant parts of the evidence of Ms Brooks. It is set out in more detail in the reasons of the trial judge refusing the application by Ms Brooks to withdraw her plea of guilty.
When all this evidence is read together, it is quite damning. When her evidence as to her state of mind is considered with the evidence which places her with Childs when he purchased the petrol, it is especially damning. At the trial the evidence about the purchase of the petrol had been given a little before Ms Brooks had changed her plea. It was no doubt one of the events which caused her to change her plea. In my view, when all the evidence is considered together, it demonstrates that no miscarriage of justice resulted from the refusal of the trial judge to permit Ms Brooks to withdraw her plea of guilty.
The essence of the reasons of the trial judge for refusing the application by Ms Brooks to withdraw her plea of guilty are as follows:
However, even accepting what she now says, I am satisfied that on the applicant’s own sworn evidence as to what she says occurred, there is evidence that she is guilty of murder. She admitted that the statement she had signed and the affidavit that she swore were her own words and were not the suggestion of someone else. By her own admission she participated in a joint enterprise to assault the deceased. There is no suggestion that she ever withdrew from that arrangement. In the course of executing that plan she contemplated that her co-accused could go further and kill the deceased. On her own statement of what occurred, that was also within the contemplation of the co-accused. Notwithstanding that, she continued to participate in the scheme and did not withdraw, despite ample opportunity as the driver of her car to do so. She did not in fact warn the deceased to leave. She had not withdrawn from the joint enterprise when the deceased was killed. That is evidence on which a jury could properly find the applicant guilty and which would justify a plea of guilty of murder by way of extended joint enterprise.
Although the trial judge did not expressly refer to Ms Brooks contemplating that Childs might intentionally kill the deceased, it is apparent from his reference to McAuliffe that he was proceeding on that footing. In my view the reasoning of the trial judge was correct.
WHITE J: I agree with the findings of fact and with the reasons of the Chief Justice. I would dismiss the appeal.