R v Brooks and Childs - [2006] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BROOKS & CHILDS
[2006] SASC 247
Reasons for Ruling of The Honourable Justice Bleby
18 August 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
Application to withdraw plea of guilty after verdict of guilty by jury - Jury verdict of guilty by direction - Validity of jury verdict - Verdict of 13 jurors - s 6A(2) Juries Act 1927 (SA) - Whether sentence passed - Whether trial Judge has power to entertain application to withdraw plea after jury verdict - Consideration of principles governing the exercise of discretion - Application refused.
Juries Act 1927 (SA) s 6A; Criminal Law Consolidation Act 1935 (SA) s 352(1); Criminal Procedure Act 1996 (NSW) s 91(1), 91(2); Criminal Law (Sentencing) Act 1988 (SA) s 3, s 9A, s 32(5)(c); Supreme Court Criminal Rules 1992 r 2.01, r 2.02, r 3.01; Supreme Court Act 1935 (SA) s 45(3), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Clouter and Heath (1859) 8 Cox CC 237; R v Hura (2001) 121 A Crim R 472; R v Pugh (2005) 158 A Crim R 302; R v Webb and Hay (1992) 167 LSJS 135; S v Recorder of Manchester [1971] AC 481, applied.
R v Nam and Sansbury [1968] SASR 107, distinguished.
Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; Maxwell v The Queen (1996) 184 CLR 501; McAuliffe v The Queen (1995) 183 CLR 108; McNicholl v Tothill (1988) 47 SASR 134; R v Boag (1994) 73 A Crim R 35; R v Chiron [1980] 1 NSWLR 218; R v Clayton (1984) 35 SASR 232; R v Collis and Collis (1989) 43 A Crim R 371; R v Douglass (2004) 9 VR 355; R v Drew [1985] 1 WLR 914; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Sagiv (1986) 22 A Crim R 73; R v Tonks and Goss [1963] VR 121; R v Vlassakis (2001) 216 LSJS 274; R v Wilkes (2001) 122 A Crim R 310; Winsor v The Queen (1866) LR 1 QB 289, considered.

R v BROOKS & CHILDS
[2006] SASC 247
BLEBY J
Background

Vicki Yvonne Brooks and Dennis William Childs were jointly charged with the murder of Robert Keith Andersen. A jury was empanelled for the trial on the afternoon of Monday 10 July 2006. Because the trial was expected to occupy up to five weeks I decided to exercise the power conferred on me by s 6A of the Juries Act 1927 (SA) to empanel one additional juror for the trial.
Both accused were arraigned before the jury and pleaded not guilty. Each accused was separately represented by counsel and the trial proceeded.
On Friday 14 July 2006, following the afternoon break, and without prior warning, Mr Kelly, counsel for Ms Brooks, asked that his client be re-arraigned. She was re-arraigned before the jury and pleaded guilty. I thereupon directed the jury to return a verdict of guilty of murder against Ms Brooks. Without retiring but with clear consensus of all those present, the jury returned a verdict of guilty.
The allocutus was not then given, but the trial was adjourned to 2pm on the following Monday without the jury in order to enable the prosecutor and counsel for both accused to consider their respective positions in the light of the plea.
At the adjourned hearing on the following Monday, Mr Kelly announced that his instructions had been terminated. Ms O’Connor then announced that she was appearing for Ms Brooks on instructions from Polly Dixon and Co. She had only received initial instructions that morning.
The matter was further adjourned to 11.15 on Tuesday 18 July when Ms O’Connor then invited the allocutus to be read. That was done, and I then sentenced Ms Brooks with the mandatory sentence of imprisonment for life. The trial of Mr Childs then resumed before the jury.
On Wednesday 19 July an application was filed on behalf of Ms Brooks to withdraw her plea of guilty. The next two days were spent, in the absence of the jury, dealing with that application and matters which arose incidental to it which are referred to later in these reasons. On Friday 21 July I refused Ms Brooks’ application, and the trial of Mr Childs continued on the following Monday. I said that in due course I would publish reasons for refusing the application. These are those reasons.
Validity of the Jury’s Verdict
In the course of argument as to the Court’s power to entertain the application, a matter dealt with below, a question was raised as to the validity of the jury’s verdict of guilty. As mentioned above, I had empanelled a jury of thirteen. Following Ms Brooks’ plea of guilty, the jury did not retire, and the verdict was that of all thirteen. Section 6A(2) of the Juries Act 1927 provides:
If an additional juror or additional jurors have been empanelled and, when the jury is about to retire to consider its verdict, or to consider whether to return a verdict without hearing further evidence, the jury consists of more than 12 jurors, a ballot will be held to exclude from the jury sufficient jurors to reduce the number of the jury to 12.
No ballot was held as contemplated by that subsection.
On the prosecutor’s argument a valid verdict of guilty by the jury precluded the Court from entertaining an application to withdraw the plea of guilty. It was therefore necessary to rule on the validity of the verdict. I ruled that the verdict was valid, notwithstanding the failure to undertake a ballot, for the reasons which follow.
Since the decision of the High Court in Project Blue Sky Inc. v Australian Broadcasting Authority,[1] the validity of the verdict where there has been a non-compliance with s 6A(2) is not to be determined by reference to whether the provision is mandatory or directory and, if the latter, whether there has been substantial compliance. As the majority said in Project Blue Sky: [2]
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”. (footnotes omitted)
[1] (1998) 194 CLR 355.
[2] Ibid at 390-391, McHugh, Gummow, Kirby and Hayne JJ.
The object and purpose of s 6A of the Juries Act is to ensure that long criminal trials do not miscarry by virtue of the discharge of individual jurors during the trial and to ensure that as far as possible 12 jurors remain to consider the verdict. The purpose of the ballot is to ensure that not more than 12 jurors participate in the discussions in the jury room which result in the jury’s verdict. In the case of a properly considered verdict of a jury, compliance with s 6A(2) would obviously be necessary for a valid verdict. Failure to conduct a ballot could result in one influential juror remaining in the jury room discussion and possibly affecting the result, when that person might well have been balloted out of the jury for that purpose.
In this case, however, the verdict was by direction. It was no more than a necessary formality. It was unanimous and therefore included 12 jurors. Barring an act perversity, the verdict would have been precisely the same if a ballot had been conducted. If necessary, it was a matter which could easily have been cured by recalling the jury which was then still continuing with the trial of Mr Childs, by proceeding with a ballot and by then directing the 12 jurors to return precisely the same verdict.
While a ballot is clearly necessary in order to return what could be described as a disputed verdict, I am not persuaded that it is the purpose of the Juries Act that a verdict by direction given unanimously by a jury of more than 12 should be invalid. I do not consider that Parliament intended to invalidate such a verdict for non-compliance with what, in the circumstances, was a mere technicality which could not have affected the result. Accordingly, I consider that in this case the verdict of the jury was valid and that the argument as to power should proceed on that footing.
The Power to Entertain the Application
Where there has been a plea of guilty on arraignment before a judge, it is clear that an application may be made to withdraw the plea at any time before sentence[3]. However, Mr Hinton, counsel for the DPP, argued that where a verdict of guilty had been returned by a jury, it was no longer possible to entertain an application to withdraw the plea. The only remedy available was by way of appeal against conviction pursuant to s 352(1) of the Criminal Law Consolidation Act 1935 (SA). That section, he argued, distinguished between an appeal against conviction and an appeal against sentence. He submitted that in the context of a plea of guilty, the conviction occurs where there is an acceptance of the plea amounting to a determination of guilt by the court, and that this would not normally occur until sentence[4]. In the case of a jury verdict, however, he argued that the determination of guilt occurs at the time of the verdict, citing a passage from the judgment of the Full Court of the Supreme Court of Victoria in R v Tonks and Goss[5] to the effect that a conviction “is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused”. However, that is not the ratio decidendi of the case. All that the case decided was that a plea of guilty does not of its own force constitute a conviction so as to establish a plea of autrefois convict. Nor does that case deal with the power of the court to entertain an application to withdraw a plea after a verdict of guilty by a jury. True it is that the verdict of a jury may be sufficient to found a plea of autrefois acquit or autrefois convict[6], but that does not necessarily mean that a court is powerless to amend its record if the very foundation for that verdict is properly removed by order of the court.
[3] R v Clayton (1984) 35 SASR 232; Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; S v Recorder of Manchester [1971] AC 481; R v Sagiv (1986) 22 A Crim R 73; McNicholl v Tothill (1988) 47 SASR 134.
[4] Maxwell v The Queen (1996) 184 CLR 501, Dawson and McHugh JJ at 509, Gaudron and Gummow JJ at 531.
[5] [1963] VR 121.
[6] Winsor v The Queen (1866) LR 1 QB 289 at 313.
Mr Hinton’s argument has some support from a line of cases in New South Wales. In R v Chiron,[7] an accused changed his plea to guilty in the course of the trial after the trial Judge had admitted certain evidence which was found, on appeal, to be inadmissible. The jury returned a verdict of guilty. One of the grounds of appeal was that the trial Judge was in error in holding that he had no power to permit the appellant to withdraw his plea of guilty. In rejecting that ground of appeal Lee J said:[8]
The plea does not discharge the jury from bringing in a verdict, and the judge can only sentence the accused, if the jury finds him guilty. He cannot act merely on the plea, and sentence the accused without such a verdict: R v Carr; R v Hancock; R v Heyes; R v Breed. In the present case, the jury had been discharged and had disbanded long before the application “to withdraw the plea of guilty” was made. In Griffiths v The Queen, Barwick CJ said: ‘But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury’s verdict at least on its first return. But, usually, that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused’.
The judgments of Jacobs J and Aickin J in that case, make a detailed analysis of the nature of “conviction” and “sentence”, and are entirely consistent with the Chief Justice’s conclusion that acceptance by the judge of the jury’s verdict places the judge in a position where he may proceed to sentence. It must follow that, when the judge has accepted the jury’s verdict and they have disbanded, the judge cannot thereafter permit the accused “to withdraw his plea of guilty”, or in any way interfere with the conviction implicit in his acceptance of the jury’s verdict. He must then proceed to sentence. It follows, in this case, that his Honour, the learned trial judge, fell into no error in taking the course which he did.
However, Street CJ expressed no view on that ground of appeal. Nagle CJ at CL merely observed that “as the plea of guilty was not made under any mistake, it seems to me that it cannot be argued that the trial Judge was in error, after the jury’s verdict, in refusing to allow the appellant to withdraw his plea”[9]. He did not express any view on the power of the trial Judge to allow the appellant to withdraw his plea but was rather expressing his view on the merit of that decision.
[7] [1980] 1 NSWLR 218.
[8] Ibid at 227.
[9] Ibid at 221.
In R v Hura[10] there was an appeal against the refusal of the trial Judge to permit the appellant to withdraw his plea of guilty, the trial Judge having held that he had no discretion to permit the withdrawal as there had been a deemed jury verdict and a “finding” of guilt under s 91(1) of the Criminal Procedure Act 1996 (NSW). The appeal was dismissed. Spigelman CJ, with whom Simpson J and Carruthers AJ agreed, noted that it was conceded on the appeal that s 91(2) of the Criminal Procedure Act had the same effect as the position at common law upon the verdict of a jury. As to the common law position, the Chief Justice held that it was “authoritatively established” by Chiron that once the jury has returned a verdict, the trial Judge has no discretion to permit the accused to withdraw a plea of guilty[11]. That position was affirmed by the New South Wales Court of Criminal Appeal in R v Wilkes.[12]
[10] (2001) 121 A Crim R 472.
[11] Ibid at 474.
[12] (2001) 122 A Crim R 310 at 312.
On the other hand, in this Court Debelle J in R v Webb and Hay[13] allowed an accused who had changed his plea to guilty before the jury, and had accordingly been convicted, to withdraw his plea after the jury had been discharged. Debelle J did not refer to the decision in R v Chiron,[14] but relied on some English authority not referred to in any of the New South Wales cases. After reviewing that authority Debelle J concluded:[15]
At the end of the day the guiding principle should be to ensure that the interests of justice are served. That objective is, I think, best achieved by permitting courts to hear and determine applications to withdraw a plea of guilty even after a jury has formally returned a verdict of guilty upon a plea of guilty having been made before it. I rule, therefore, that I have jurisdiction to hear and determine this application.
[13] (1992) 167 LSJS 135; (1992) 64 A Crim R 38.
[14] [1980] 1 NSWLR 218.
[15] R v Webb and Hay (1992) 167 LSJS 135 at 141.
One of the cases referred to by Debelle J was R v Clouter and Heath[16] where two persons were indicted for forgery and pleaded not guilty. Clouter changed his plea to guilty and was convicted by the jury. He gave evidence against Heath which indicated that he had pleaded guilty under a misapprehension. He was allowed to change his plea again and the jury’s verdict was “withdrawn”. The case continued against Heath and he was acquitted. Clouter was subsequently tried before the same jury and found guilty. That case differed from Webb and Hay in that in Webb and Hay the jury had been discharged but it had not been discharged in R v Clouter and Heath. At the time of hearing argument in this case, the jury remained empanelled and was proceeding to hear the case against Childs. It would have been possible, perhaps with some delay, and if I were satisfied that Ms Brooks should be permitted to withdraw her plea, to re-arraign Ms Brooks before the jury, and on her pleading not guilty, to direct the jury to withdraw their finding of guilt, as in Clouter and Heath. However, although still possible, that would have entailed resort to a technicality which other authority suggests is unnecessary. Furthermore, it seems that that was possible in Clouter and Heath because the same jury was empanelled for the one assize without being discharged. While I did not hear argument on the point, the finding of guilty by the jury could well, under our present practice, have discharged them in respect of Ms Brooks in any event.
[16] (1859) 8 Cox CC 237.
S v Recorder of Manchester[17] was a case where the appellant appeared before magistrates in a juvenile court on a charge of attempted rape. He consented to be tried summarily and pleaded guilty. The magistrates formally entered a finding of guilt and the hearing was adjourned for an enquiry into the appellant’s physical and mental condition. He later applied to withdraw his plea. The magistrates refused on the ground that they were functi officio. The House of Lords allowed the appeal against the refusal to allow withdrawal of the plea.
[17] [1971] AC 481.
Lord Reid said:[18]
It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. I need only cite one early case as a rather extreme instance.
His Lordship then cited R v Clouter and Heath, and noted that the case had been frequently cited and never disapproved. He continued:
I do not find it easy to understand why a different rule has emerged in recent times with regard to the powers of magistrates in summary proceedings. Several cases have held that magistrates have no power to allow a change of plea during the interval between their acceptance of a plea of guilty and final disposal of the case. They appear to me to have arisen out of a misconception of purely technical matters.
Much of the difficulty has arisen from the fact that “conviction” is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after “conviction” in the former sense. But it does not at all follow that a plea cannot be changed after “conviction” in the latter sense.
[18] Ibid at 488-489.
Significantly, Lord Reid continued:[19]
I do not think it necessary to enter upon the technicalities of autrefois convict. Other authorities cited to us strongly suggest that this is not a good plea unless the earlier case was carried to a conclusion. But even if Sheridan’s case was rightly decided and a “conviction” in the narrower sense will support a plea of autrefois convict, that does not appear to me to lead to the conclusion that a “conviction” in the narrower sense must end the power of the court to allow a plea to be changed. No one has ever suggested that the decision of Sheridan’s case conflicts with the power of a trial judge to allow a plea of guilty on an indictment to be changed, so why should it conflict with a similar power in magistrates’ courts.
[19] Ibid at 490.
Lord MacDermott said:[20]
Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of not guilty allowed where the interests of justice so require? There is no good reason for thinking that such a course would create an administrative problem or open the door to a widespread abuse of process. As respects trials on indictment, including trials before justices at quarter sessions, the attitude of the common law on this matter has been clear for generations. Such a change may, at the discretion of the court, be allowed at any time before the case has been disposed of by sentence.
[20] Ibid at 493.

Lord Morris made similar observations:[21]
If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable if that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgement of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made. When, in the present case, the court, on June 20, heard the reasons for the application made to them, they felt, and rightly felt, that the proper course in the interests of justice would be to accede to it. It would be a grave defect in our law and system if there is some rule which thwarts the course which the interests of justice prompt.
[21] Ibid at 501.
Lord Guest agreed with the opinion of Lord Reid. Lord Upjohn[22] considered that it was clear that the High Court was not functus officio after a plea of guilty or a finding of guilty by a jury, and that the judgment of the court was only complete when sentence had been passed. He described this rule as seeming “very sound and based upon common sense and justice”. He continued:
The court must continue to exercise its jurisdiction over the whole case until the judgment of the court; and there can be no ground in law or common sense which requires a court to become functus officio as to part of its jurisdiction, namely, the finding of guilt, during the hearing of the case.
[22] Ibid at 505.
The House of Lords in S v Recorder of Manchester was dealing with a decision by magistrates to refuse to entertain the withdrawal of a plea of guilty after entry of conviction. However, the decision proceeds on the commonly accepted position that there is no inhibition upon a superior court entertaining such an application after a finding of guilt by a jury.
In R v Drew[23] the appellant changed his plea before the jury who, by direction, returned verdicts of guilty against him. The trial against co-defendants continued but the jury had to be discharged. Another jury was empanelled and the trial against the co-defendants proceeded. While the jury was considering their verdict against the co-defendants the appellant sought leave to change his pleas to not guilty. The trial Judge ruled that he was precluded from allowing the change of plea because of the earlier verdicts of guilty returned by the first jury. The Court of Appeal[24] held that the trial Judge had a discretion to allow the change of plea at any time before sentence was passed. Lord Lane CJ, delivering the judgment of the court said:[25]
There appears to this court no greater difficulty in altering the record following a jury’s verdict than doing so upon a change of plea in any other situation. The jury’s verdict where, as here, it is entered upon the direction of the judge, is essentially a formality. In our judgment logic and good sense dictate that the trial judge should have the same power to allow a change of plea even where the verdict of guilty has been returned formally by the jury. It would be a most unfortunate anomaly in the law were it otherwise. We have come to the conclusion that neither the authorities nor the intrinsic nature of a jury’s verdict compel such an unsatisfactory result. Rather we are persuaded that the appellant’s argument is well founded and is supported by such authority as bears upon the point.
[23] [1985] 1 WLR 914.
[24] Lord Lane CJ, Skinner and Simon Brown JJ.
[25] Ibid at 922.
I respectfully agree that it would be an unfortunate anomaly if the law did not permit a trial Judge to entertain an application to change a plea after verdict by a jury. The English cases clearly support the position taken by Debelle J in R v Webb and Hay.
There is also support for that position in the Supreme Court of Victoria. In R v Douglass[26] Coldrey J reviewed the authorities to which I have referred, other than the New South Wales authorities, and concluded that in a situation similar to that before me he had power to entertain an application to withdraw the plea of guilty. He noted[27] that such an approach has the advantage of certainty, and that given the circumspection which must attend such an application, any abuse of process is likely to be rare. I respectfully agree. The most likely possible abuse is where a person jointly charged with another who seeks a separate trial pleads guilty before the jury and then later seeks to withdraw his plea, thus ensuring a separate trial. As Debelle J pointed out in R v Webb and Hay,[28] there is potential for that to occur in any event whether or not the trial Judge can entertain an application to withdraw the plea. The prevention of abuse lies in the scrutiny that must be given to the reasons advanced on the application for withdrawing the plea. That scrutiny may go as far as to require, as in this case, the accused to submit to cross examination on the voir dire. There is no reason to think that the application cannot be effectively disposed of by the trial Judge. There is every reason to think that convenience and efficiency in the administration of justice requires that it should be, rather than requiring the applicant to appeal and to establish his entitlement to plead not guilty by way of evidence led before a Court of Appeal.
[26] (2004) 9 VR 355.
[27] Ibid at 360.
[28] (1992) 167 LSJS 135 at 141.
Accordingly, subject to what follows I considered that I had power to entertain Ms Brooks’ application.
I considered that if I was not prevented by the jury’s verdict from entertaining the application, I was in no different position than if Ms Brooks had entered a plea of guilty before me on first arraignment. If so, I could entertain the application at any time before sentence[29]. However, I had also passed the mandatory sentence of imprisonment for life, but I had not entertained any submissions as to the fixing of a non-parole period. The passing of that sentence was a necessary formality. The question arises whether what I did constituted sentencing the applicant and whether that now precludes me from hearing the application.
[29] R v Clayton (1984) 35 SASR 232; Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; S v Recorder of Manchester [1971] AC 481; R v Sagiv (1986) 22 A Crim R 73; McNicholl v Tothill (1988) 47 SASR 134.
The definition of “sentence” in the Criminal Law (Sentencing) Act 1988 (SA) includes the fixing of a non-parole period[30]. Subject to certain irrelevant exceptions, there is a mandatory requirement to fix a non-parole period[31]. The only relevant exception is that the Court may decline to fix a non-parole period if it is of the opinion that it would be inappropriate to fix such a period because of certain circumstances mentioned in the section.[32] However, for the purposes of the Criminal Law (Sentencing) Act 1988, in a case like this, the sentencing process is not complete until either a non-parole period is fixed or a decision is made under s 32(5)(c) not to fix one.
[30] Section 3, Criminal Law (Sentencing) Act 1988 (SA).
[31] Section 32, Criminal Law (Sentencing) Act 1988 (SA).
[32] See s 32(5)(c), Criminal Law (Sentencing) Act 1988 (SA).
The long title of the Criminal Law (Sentencing) Act 1988 is “An Act to consolidate and amend the law relating to sentencing and the enforcement of sentences; and to provide for other related matters”. The imposition of all sentences is now governed by that Act. In order to determine when a sentence has been imposed or when the sentencing process has ended, one must have regard to the requirements of that Act and not to any concept of sentence distinct from a non-parole period. Accordingly, in my opinion, I have not yet sentenced the applicant, and the application can therefore be entertained.
If I am wrong in that, a question arises as to whether the sentence can be varied or withdrawn. Section 9A of the Criminal Law (Sentencing) Act1988 provides :
(1) A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2) The Director of Public Prosecutions and the defendant are both parties to an application under this section.
There is no limitation as to the time at which such an application may be made. However, it is limited to the rectification of “errors of a technical nature”, or to supply a deficiency or remove an ambiguity in the sentencing order. Whatever those terms may encompass, the complete revocation of a sentence of life imprisonment, intended at the time, is not encompassed by them. I do not consider that any comfort can be arrived from that section. However, at common law there is an undoubted power to vary or revoke a sentence within a period allowed by the law.
In R v Nam and Sansbury[33] the Full Court reviewed the English and early Australian practice as to the period within which the Court had undoubted power to vary a sentence. After conducting that historical review, the Court concluded:[34]
It seems to us that in effect we have to legislate. This Court is, and has been since 1837, vested with the jurisdiction of the relevant English Courts, but by reason of it being at all times a Court of oyer and terminer and gaol delivery instead of operating from time to time under specific commissions, the power to reconsider and alter sentences in its criminal jurisdiction, which was amongst the powers of the Courts with whose jurisdiction we are invested cannot have the same period of life as the corresponding power in England at that time. We have to decide the terminal date by analogy, and in so doing we think we should strive to follow the English practice as we inherited it as closely as possible, but considerations of expediency, policy and justice are not to be excluded.
In our view the existence of this power in England was not in 1837 dependent on the existence of any document, or the drawing up of any record, still less on the making by the Clerk of Arraigns of entries on the information or in the Record Book. It was dependent on the duration of a law term, a commission of assize, or a sessions. We now have none of these except for the assizes of the Circuit Courts. Nevertheless, the Court in Adelaide has organised itself into monthly sittings. We think the proper course is to hold that the power of the Court to reconsider and alter its sentences while sitting as a Court of oyer and terminer and gaol delivery in Adelaide is limited to the duration of the particular sittings. We so hold, not because we think a sittings is the equivalent of an English assizes or sessions, which it clearly is not, but because we think it presents the nearest analogy.
When does the sitting end? Clearly not before the last prisoner dealt with by a Judge or Judges during that particular sittings is sentenced. And we see no objection as a matter of convenience, not as a matter of law, in following R. v. Batchelor ⁽⁴¹⁾ and regarding the signature of the report in relation to the sentence on the last prisoner so dealt with as marking the end of the sittings. It is much easier to hold that the signing of the report in relation to the sentencing of the last prisoner dealt with in any sessions of a circuit court signifies the end of that sessions.
We realize that this involves certain inconveniences. In particular it involves this, that until the last prisoner dealt with in any particular sittings or sessions is sentenced and the report signed in relation to him, the fate of all the prisoners dealt with in that sessions or sittings is not finally determined. We cannot regard each report as terminating the power to alter the sentence of the prisoners who have appeared in the relevant sittings or session have not yet been sentenced. So to hold, it seems to us, would be to commit the heresy of making the power of alteration dependent on some document, entry or record relating to the particular prisoner instead of on the expiry of some particular period of time or commission or sessions. And, since the power of alteration is far more likely to be used for the purposes of reduction than for those of increase, what may be considered the undue prolongation of the power is likely in the aggregate to be more merciful than its restriction to vanishing point, apart from obvious slips of the tongue, which would be the consequence of choosing the only other suggested terminal point, the entries of the Clerk of Arraigns.
[33] [1968] SASR 107.
[34] Ibid at 116-117.
Since that case was decided, individual sittings of the Court in its criminal jurisdiction have been abolished. Rule 2 of the Supreme Court Criminal Rules 1992 provides :
2.01 The sittings of the Court in its criminal jurisdiction at Adelaide shall be continuous throughout the year except for the period from Christmas Day until the day preceding the second Monday in the month of January.
2.02 The sittings of the Court in its criminal jurisdiction shall be at such times and places as the Chief Justice shall from time to time direct.
Rule 2.02 reflects the requirement of section 45(3) of the Supreme Court Act 1935 (SA). Persons are not committed for trial or sentence at a sittings of the Court but for the first working day of the first week after the expiration of 28 days from their committal for trial or sentence.[35]
[35] Rule 3.01, Supreme Court Criminal Rules 1992.
There is now no recognised sittings or session or other period within which the power to vary or revoke a sentence may be exercised. There is no composite report prepared and signed at the end of the month, with supplementary reports filed if a matter is adjourned beyond the end of the month, as used to be the case. Despite the reliance on and modification of longstanding practice adopted in R v Nam and Sansbury, the conceptual foundation for limiting the relevant time has disappeared. That is not to say that the power to vary or revoke a sentence at all has disappeared with it. It merely means that some other and more appropriate standard or limitation must be found. If it is not to be found in a session or sittings of the Court, it can only be found by reference to the practice adopted with respect to the sentencing of particular individuals. To rely only on the entry of the sentence by the Clerk of Arraigns upon its pronouncement would, as the Court recognised in Nam and Sansbury, restrict the ability to make a correction to vanishing point.
Instead of the monthly report there is now a universal practice of the Court in the signing by the Judge of a Report of Prisoner Tried for each individual who is sentenced. That is a recognisable final act by the Judge in sentencing, and the final record of the precise terms of the sentence imposed. That has obviously not occurred in this case.
R v Nam and Sansbury needs revisiting in the light of our present practice. In my opinion, a sentence should be able to be varied until the judge signs the Report of Prisoner Tried in respect of the particular prisoner, rather than by reference to some arbitrary period which would now have no reference to anything. Recall of a sentence of imprisonment for life where nothing further has occurred and in order to avoid any "technical difficulties" is not unknown. In R v Vlassakis[36] it was done in order for the sentencing process to be carried out, for good reason, by another judge. If it were necessary to do so for the purpose of dealing with the present application, I consider that I would be able to recall the mandatory life sentence I have imposed.
[36] (2001) 216 LSJS 274.
The cases in which a sentence should be revoked after being pronounced will be very rare, but there would be every justification for doing so before the signing of the Report of Prisoner Tried if a proper case were made out for withdrawing the plea on which the sentence was based in order to enable the plea to be withdrawn. However, as I consider that, in this case, the imposition of the sentence has not been completed, that does not arise. If I am wrong in that, I would still not have set the sentence of life imprisonment aside because, for reasons which follow, there is no justification for allowing the applicant to withdraw her plea.
Principles Governing Withdrawal of a Plea
The circumstances in which a court will intervene and set aside a conviction based on a plea of guilty were recently discussed by members of this Court in R v Pugh.[37] Essentially, an appellate court will intervene where it is satisfied that a miscarriage of justice has occurred[38]. There is every reason why a single judge, hearing an application to withdraw a plea at first instance, should be guided by similar considerations, namely whether a miscarriage of justice would occur if the application were not granted. As I said in Pugh,[39] a miscarriage of justice can take many forms. Some of the more common ones were listed by Spigelman CJ in R v Hura:[40]
[37] (2005) 158 A Crim R 302; [2005] SASC 427.
[38] Ibid Doyle CJ at [40]; Bleby J at [82]; Gray J at [195].
[39] Ibid at [82].
[40] (2001) 121 A Crim R 472 at 478.
·where the appellant “did not appreciate the nature of the charge to which the plea was entered” : Ferrer-Esis (1991) 55 A Crim R 231 at 233.
·where the plea was not “a free and voluntary confession” : Chiron [1980] 1 NSWLR 218 (at 220 D-E).
·the “plea was not really attributable to a genuine consciousness of guilt” : Murphy [1965] VR 187 at 191.
·where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt” : Sagiv (1986) 22 A Crim R 73 at 80.
·where the “plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt” : Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
·the “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt” : Maxwell (1995) 184 CLR 501 at 511; 186-187.
·if “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt” : Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320.
Particularly pertinent for the present case is a frequently cited passage in the judgment of Badgery-Parker J in Davies where his Honour said:
“If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction and to order a new trial.”
In R v Boag[41] Hunt CJ at CL said:[42]
A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty. The authorities are collected and discussed in Chiron (at 235), in Sagiv (1986) 22 A Crim R 73 at 80-81; Bell (1987) 8 NSWLR 311 at 314-315; 28 A Crim R 417 at 420-421, in Liberti (1991) 55 A Crim R 120 at 121-122 and in Davies (unreported, Court of Criminal Appeal, NSW, 16 December 1993) at pp 2-5, 7-9. See also Jupp (unreported, Court of Criminal Appeal, 23 November 1993) at pp 2-3. As Badgery-Parker J said in Davies (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt.
[41] (1994) 73 A Crim R 35.
[42] Ibid at 37.

It is the applicant who bears the onus of demonstrating that a miscarriage of justice has occurred[43], and an application to withdraw a plea of guilty must be viewed with caution. In R v Liberti[44] Kirby P said:[45]
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.
[43] R v Boag (1994) 73 A Crim R 35 at 37; R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; R v Collis and Collis (1989) 43 A Crim R 371.
[44] (1991) 55 A Crim R 120.
[45] Ibid at 122.
In similar vein, Lee J said in R v Sagiv:[46]
It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (O’Neill [1979] 2 NSWLR 582; 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings.
[46] (1986) 22 A Crim R 73 at 80-81.
With those principles in mind, I turn to consider the circumstances in which the present application was made.
Consideration of the Application
The application was supported by an affidavit of the applicant and of her former counsel. Both were cross examined by Mr Hinton, and there was tendered a statement signed by the applicant and provided to the DPP by her solicitors. In her sworn evidence the applicant verified the truth of the relevant parts of that statement relied on by Mr Hinton and to which reference, in due course, will be made.
It is not in dispute that the deceased died following extensive burns as a result of being set alight with the aid of an accelerant in the car park of the Marion Hotel shortly after 2 am on the morning of 26 January 2005. Although there were some eye witnesses to the incident, no-one was able to identify either of the accused as being the person who set fire to the deceased or who was present when that occurred. The case against both accused was circumstantial and was based on an inferred joint criminal enterprise.
Mr Kelly had been retained as Ms Brooks’ counsel since shortly after her arrest on the morning of 26 January 2005. The applicant deposed in her affidavit that until Friday 14 July 2006, the day she pleaded guilty, she had instructed Mr Kelly that she was not at the car park of the hotel. She now says that was not true.
Mr Kelly spoke to his client about 10 minutes prior to the end of the luncheon adjournment on Friday 14 July 2006. There was some slight difference between him and the applicant as to how the relevant conversation between them arose. Although those differences are probably not material, I prefer the evidence of Mr Kelly as it is more detailed and it accords with what was about to happen in the trial. Mr Kelly was concerned about the evidence of a particular witness due to be called that afternoon. He expressed his concern to the applicant that his instructions disclosed no apparent motive for that witness to tell lies in respect of the applicant’s movements on the night of the murder, and that the evidence of the witness would be likely to be very damaging to the applicant’s defence, meaning, as I understand it, that the evidence would support the prosecution case that Ms Brooks was at the hotel car park. He expressed his view that the evidence to be led by the prosecution “was overwhelming as to establishing her presence at the murder scene”. On her own evidence, the applicant acknowledged that there was “a lot of evidence against me”.
Mr Kelly deposed that in the course of that discussion the applicant became tearful and he enquired whether she wanted to discuss a possible change of plea. She said that she did. As the Court was about to resume Mr Kelly told the applicant that he would speak to her further at the next opportunity but before the relevant witness was to be cross examined.
The evidence led following the luncheon adjournment had little, if anything, to do with the involvement of the applicant. It concerned the case against the co-accused, Mr Childs.
In her oral evidence the applicant said that in relation to the discussions she had with Mr Kelly on Friday 14 July she was under no pressure from Mr Kelly, that between lunch and the afternoon break she had time to think about and to consider her position, and she confirmed her belief at that stage that she thought that there was an overwhelming case against her and that she would be found guilty.
Mr Kelly returned to confer with the applicant at the afternoon break. He confirmed that he had seen the relevant witness in the court precinct. He produced a hand-written document which he had prepared during the course of the afternoon’s hearing which read as follows:
I, Vicky Brooks, acknowledge that Mr Kelly has advised me that the evidence to be led against me regarding the murder of Robert Andersen is so strong as to be overwhelming. Mr Kelly has advised me that in the event I have committed this crime it would be in my best interests to enter a plea of guilty at this stage of the trial (before Steven Walters) on the basis that I would still receive a small discount in penalty – and I would have the opportunity to put forward my own version of events which may affect the penalty to be imposed.
Mr Kelly has also told me that if I gave evidence against Dennis Childs I could expect a significant discount in penalty, probably in the order of 5-7 years.
I instruct that I will plead
Guilty
Not Guilty
After some further conversation Mr Kelly read the document through to the applicant pointing out each word as he said it. The applicant appeared to be reading the document as he read it aloud. She said that she understood the document and did not wish to discuss it further. Mr Kelly asked her to put a line through the word “Guilty” or “Not Guilty” indicating her instructions. She struck out the words “Not Guilty” and signed the document. Mr Kelly again enquired whether the applicant was firm in her decision and she indicated that she was.
She then signed another document which Mr Kelly wrote out in her presence. That document read :
I wish to be interviewed by investigators regarding an offer which I now make to give truthful evidence against Dennis Childs
14/7/06
It is clear that Mr Kelly did not advise the applicant one way or the other to plead guilty. Bearing in mind the applicant’s instructions to Mr Kelly to that point that she had not been at the scene at all, Mr Kelly advised her that the evidence against her appeared to be “overwhelming”. No-one has questioned that advice. The document was prepared not by way of advice to plead guilty but in a manner in which the applicant could clearly indicate her instructions “in the event that (she had) committed this crime”.
It is also clear, however, that at no stage prior to obtaining those instructions did Mr Kelly discuss with the applicant the factual basis on which her plea was being entered. He had obtained no instructions from her as to what she said happened in the period immediately before and whilst she was at the hotel car park. This is somewhat surprising, given that the circumstantial case against both accused was based on a joint criminal enterprise to kill the deceased with little evidence as to precisely who performed what acts in setting the deceased alight. On the prosecution case it did not matter who actually set the deceased alight.
It was following the signing of those documents that on the resumption of the Court Mr Kelly sought to have his client re-arraigned, and she pleaded guilty.
Pursuant to an arrangement then made with prosecuting authorities, the applicant was taken to the Holden Hill police station on the morning of Sunday 16 July to be interviewed by detectives. Before that occurred and before she was asked any questions she had another interview in private with Mr Kelly. He then asked her the factual basis on which she had decided to plead guilty, emphasising to her that it had to be the whole truth and nothing but the truth. She indicated that she understood that. She began by saying that she could assist investigators by providing information regarding a telephone call between her and the co-accused in the early hours of the 26 January, but now appeared to be re-affirming her previous instructions that she had not been at the scene. This accords with the affidavit of the applicant in which she says that she told Mr Kelly that she wanted to change her instructions again and to say she was not present in the car park.
In those circumstances Mr Kelly informed her that he could no longer act for her. The applicant then instructed that she wanted to instruct her current solicitor and counsel.
In an affidavit sworn on 20 July 2006, after the filing of her application to withdraw her plea, the applicant now says that she gave instructions to change her original plea because she did not know or understand that she could be present during the murder of Mr Andersen but be not guilty of his murder. She complains, which is correct, that Mr Kelly did not discuss that with her. She now says that she did drive the co-accused to the hotel car park and suggests that it was the co-accused who persuaded her to telephone the deceased to arrange the meeting, that it was the co-accused’s idea to meet at the hotel car park, that she went because she thought that the co-accused was going to assault Andersen and that she had not agreed to take part in any other offence against him.
She says that it was the co-accused who poured petrol on the deceased which she believes that he lit. She now claims that she was not party to the killing of the deceased and did not assist in the killing. She complains that at the time of entering her plea of guilty she did not know that her present instructions amounted to a defence nor was she advised of that. In her affidavit she deposes to having held the belief that if she told the police she was present she thought she would be automatically guilty of murder by her mere presence.
The following exchange occurred in cross-examination:
Q.When you pleaded that afternoon you knew you were pleading to murder.
A.I didn’t fully understand at that stage but I pled guilty because of the paperwork here that Mr Kelly and I had signed (INDICATES), yes.
Q.You knew you’d been charged with murder.
A.Yes.
Q.Putting aside the law for a minute, you would have to agree, wouldn’t you, we all know that murder is the deliberate killing of a person.
A.I understand, yes.
Q.You’d been charged with that and pleaded not guilty at the start, hadn’t you.
A.Yes.
Q.And when you pleaded guilty you pleaded guilty to deliberately killing someone.
A.Yes.
Q.And you knew that.
A.Yes.
Q.And you knew that it involved you and Mr Childs working together.
A.Correct.
Q.Because you had heard the prosecution opening on the Monday afternoon, hadn’t you.
A.Yes.
Q.And it was made clear there, wasn’t it, that it was you and Mr Childs working as a team that committed this murder, wasn’t it.
A.That’s correct.
Q.You understood that.
A.Yes.
Q.So when you pleaded guilty, you knew it was against that background the Crown was alleging you committed the murder.
A.Correct.
Q.I noticed, and you’ll correct me if I am wrong, but as you stood to enter your plea you were crying, weren’t you.
A.Yes.
Q.Crying because of the enormity of what you were doing had dawned upon you.
A.Yes.
Q.You knew unequivocally that you were pleading guilty to the murder of Robert Andersen. That’s why you were crying.
A.Yes.
Q.Crying because you appreciated exactly what you were doing as the associate read the charge to you and asked a second time for your plea; isn’t that right.
A.Yes.
That passage suggests that there was no misapprehension on the part of the applicant as to what she understood she was doing in pleading guilty.
In the course of describing the events of 25-26 January in her affidavit the applicant said:
j. On the way to the car park I was concerned that Mr. Childs might have a different offence in mind and was not contemplating an assault on Mr. Andersen.
k. I 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 to me.
In the statement which the applicant signed on 18 July, which was annexed to her application and to the truth of which deposed in her sworn evidence, the applicant said:
39.I did not mind that Mr. Childs wanted to hurt him. I know that this was wrong and this is in part why I thought it was appropriate to plead guilty when I did so last week.
40.I was told by Mr. Childs to park the car. Mr. Andersen’s car was to the left of mine and facing towards us. Mr. Andersen was walking towards my car. I got out of the driver’s side door. I was further away from Mr. Andersen than Mr. Childs was. Mr Childs opened the rear passenger door on his side and when I came around the back of the boot of my car I saw that Mr. Childs was holding a jerry can. Mr. Andersen was about a metre away from me and a metre away from Mr. Childs. He was facing Mr. Childs.
41.I 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 elaboration in her oral evidence the applicant said:
Q.    … You made that phone call, you knew
what Dennis wanted to do and you drove Dennis to the
Marion Hotel because you were prepared to assist Dennis
to assault Mr Andersen; correct.
A.    Yes, I wasn't going to assist him.
Q.    You were by driving him, weren't you.
A.    Yes.
Q.    And you were by making the phone call, weren't you.
A.    Yes.
Q.    If you weren't there your ex-husband wouldn't have come
near Mr Childs, would he.
A.    No.
Q.    So it was important that you had to be there.
A.    Yes.
Q.    On the way you start to worry about Mr Childs, you say
both in your statement and your affidavit.
A.    Yes.
Q.    You start to think he might kill him.
A.    Childs had told myself, and I think Steven Walters was
present one night, that he had done 17 years for
manslaughter and so I did have my doubts.
Q.    On the way in the car you start to think Mr Childs might
go so far as to kill Mr Andersen; isn't that right.
A.    The thought had crossed my mind but I didn't think he
would be stupid enough to.
… …
Q.    If 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'.
A.    That's correct.
Q.    You were worried he might kill him.
A.    Yes.
Q.    That was something that was on your mind as you were
driving down there.
A.    Yes, it was. That is why I tried to warn Robert when I
got there.
Q.    Tried to warn him -
A.    Yes.
Q.    - Mr Childs might now kill him.
A.    Just to get away, to leave. I was worried about what
was going to happen.
Q.    You didn't stop on the way down there, did you.
A.    No.
Q.    You could have done that, couldn't you.
A.    I could have.
Q.    You didn't just get up and yell straightaway, did you.
A.    I got out of the car and ran behind the car trying to
warn him.
Q.    You didn't yell out, though, did you.
A.    No, not that I can recall.
Q.    You didn't do anything to try to stop Mr Childs, did
you.
A.    He was a fairly big man. I wasn't going to try and
overpower him.
Q.    Just grab his arm, didn't try that.
A.    No.
Q.    Did nothing to try to keep him in the car.
A.    No.
The significance of those admissions appears below.
There was one other factual matter relevant to the application. The applicant waived legal professional privilege in respect of the discussions between herself and Mr Kelly which took place on Friday 14 July and Sunday 16 July. She did not waive privilege in respect of any previous advice or instruction prior to 14 July. Mr Hinton did not argue that by her actions there had been an imputed complete waiver of privilege, but because of the objection to the applicant being asked any questions about previous advice given by Mr Kelly, it was not possible for Mr Hinton to explore what other discussions had taken place between the two regarding the elements of murder and the applicant’s understanding of them. It was therefore not possible for Mr Hinton to explore the accuracy of the applicant’s understanding of her plea based on any advice she might have received from Mr Kelly or on any instructions she may have given him in that regard. That was a matter of some significance to her understanding of the allegations concerning the Crown case which she had heard in the prosecutor’s opening.
In all those circumstances, I was not satisfied that the applicant had discharged the onus of proving that there was or would be any miscarriage of justice if she was held to her plea.
The applicant’s candid admission in cross examination that she knew that she was pleading guilty to the deliberate killing of a person, that she knew that the case against her involved her and the co-accused working as a team, having heard the prosecution opening, and her acknowledgement that she was crying after pleading guilty because she knew that she was pleading guilty to the murder of the deceased, all constitute the strongest possible evidence that she was under no misapprehension as to what she was doing in pleading guilty to murder, and that she did so out of a genuine consciousness of guilt. I infer from that evidence that she was under no such misapprehension and that her plea was based on a consciousness of guilt.
The applicant waived legal professional privilege in respect of the advice she was given immediately prior to and following the change of plea to guilty. She used evidence of that advice for a purpose which included express criticism of her former counsel for failing to obtain her instructions as to what happened at the scene of the killing. It was said that that failure denied her the opportunity of being advised that, in the circumstances as she now alleges, her mere presence at the scene of the killing did not render her guilty of murder.
However, she did not waive the privilege in respect of any other advice given to her by Mr Kelly in the 18 months or so that he had been acting for her to that time. By her own choice she failed to explain what earlier legal advice had been given to her about the elements of murder in the context of an alleged joint criminal enterprise, and she effectively prevented her former counsel from being asked about such matters. 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.

There was no evidence of erroneous advice on which the applicant acted. There was no evidence of any improper pressure or inducement brought to bear on her decision. There was no evidence of any mistake affecting the integrity of the plea or that it was made with other than full knowledge of all the facts. The advice of Mr Kelly that “in the event that I have committed this crime” it would be in her best interests to enter a plea of guilty did not suggest that she should plead guilty in any event, but only if she had committed the crime. She made the decision in the light of that advice and against the background of what she knew was alleged against her by way of joint criminal enterprise as explained in the prosecution opening.
Mr Hinton did not attack the applicant’s credibility, but she demonstrated an ability to give inconsistent instructions as to her presence at the scene within a relatively short space of time and as it suited her at the time. That does not engender confidence in the factual circumstances which she now asserts to justify her plea of not guilty.
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[47]. Notwithstanding that, she continued to participate in the scheme and did not withdraw, despite ample opportunity as the driver of the 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.
[47] See McAuliffe v The Queen (1995) 183 CLR 108 at 117-118.
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.
For these reasons I dismissed the application to withdraw the applicant’s plea of guilty.